Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council
[2010] QPEC 90
•10 September 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council & Ors [2010] QPEC 90
PARTIES:
GARNERS BEACH HABITAT ACTION GROUP INC
(Appellant)
v
CASSOWARY COAST REGIONAL COUNCIL
(Respondent)
PAUL WILLIAMS AND LYNDA HANNA
(Co-Respondents)
CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Co-Respondent by Election)FILE NO/S:
74 of 2010
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Cairns
DELIVERED ON:
10 September 2010
DELIVERED AT:
Cairns
HEARING DATE:
10 September 2010
JUDGE:
Everson DCJ
ORDER:
1. Leave is granted to amend the Notice of Appeal as foreshadowed in the hearing.
2. The applications of the Respondent and the Co-Respondents are dismissed.CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – where applications to amend/strike out Notice of Appeal – where approved development contains both impact and code assessable development – whether appeal may extend to code assessable aspects of the development application despite s 4.1.28 of the Integrated Planning Act 1997
COUNSEL:
Ms T Fantin for the Co-Respondents
SOLICITORS:
Environmental Defender’s Office of Northern Queensland
for the Appellant
P&E Law for the Respondent
MacDonnells Law for the Co-Respondent
Garners Beach is a relatively undeveloped area north of Mission Beach in Far North Queensland.
This appeal concerns the decision of the respondent to approve the co-respondents' development application for a Material Change of the Use-Undefined Use (Community Title Residential Subdivision) and Reconfiguration of a Lot (1 into 11 Lots) on land situated at The Esplanade, Garners Beach ("the development approval").
The appellant filed its appeal on 16 March 2010. Having regard to section 802 of the Sustainable Planning Act 2009, this appeal is to be determined pursuant to the repealed Integrated Planning Act 1997 ("IPA"). The appellant has brought an application seeking leave to amend the notice of appeal. Both the respondent and the co-respondents have brought cross-applications seeking to have the appeal struck out.
Initially the appellant, a community group, was unable to obtain legal representation for free and blundered on unrepresented. Recently that changed when the Environmental Defender's Office of Northern Queensland decided to act on its behalf. This has enabled the appellant to better articulate its grounds of appeal, although a number of attempts to challenge the development approval by way of declarations pursuant to section 4.1.21 of IPA were only abandoned in the course of the hearing of the applications today.
The focus of the attack by the respondent and the co-respondents was that the appellant was appealing code assessable aspects of the development approval which concerned the reconfiguration of the subject site. Pursuant to section 4.1.28 of IPA, a submitter may only appeal to the Court against the part of the approval relating to impact assessable aspects of the assessment manager's decision. The appellant responded by submitting that the two components "are inextricably linked and integrated with one another."
In the course of argument today the appellant demonstrated that "Planning Scheme Policy 4 - Protection of Habitat Values" in the respondent's applicable planning scheme, was relevant to the consideration of the material change of use component of the co-respondents' development application. Section 2 is in the following terms:
"2 Appropriate density of development
When determining the appropriate density of development the following is a guide to ensure that the integrity of the habitat to be protected:(a) For material change of use involving accommodation, accommodation for up to 3.1 equivalent persons is permitted for each five (5) hectares of habitat protected using a conservation covenant up to a maximum of 12.4 equivalent persons or four (4) equivalent tenements."
Regrettably the terms "accommodation", "equivalent persons" and "equivalent tenements" are not defined in the planning scheme. The meaning to be ascribed to the latter terms can await another day. In the Australian Oxford Dictionary, Second Edition (Oxford University Press 2004) accommodation as defined as, inter alia, "a place to live". Both the respondent and the co-respondents justify the density of the proposed development by reference in part to the layout of the proposed development and therefore the code assessable reconfiguration of a lot component of the approval.
Previous cases which have considered whether two components of a development are inextricably linked have done so in different contexts. For example, in Bell v Brisbane City Council [2005] QPELR 117 the argument was unsuccessfully put in the context of a material change of use approval for the erection of multiple unit dwellings and exempt demolition work. Again, in Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor [2010] QPELR 134, the argument failed in the context of two physically separated and discrete uses.
While it is true, as was stated in Johnston v Cassowary Coast Regional Council [2009] QPELR 303 at 304, that "reconfiguring a lot is a different type of development to making a material change of use", on the facts before me the two components of the development application are interrelated. To the extent that the reconfiguration of a lot approval is sought to justify the increased density implicit in the material change of use approval, it is contentious in this appeal. It is effectively a design solution which is one of the ways by which the respondent and co-respondents seek to justify more accommodation - that is, more places to live, on the subject site.
To this extent the reconfiguration of a lot approval is therefore relevant in the determination of this appeal and may properly be the subject of disputed issues in the appeal.
I grant the appellant leave to amend its notice of appeal as foreshadowed in the course of this hearing.
I dismiss the application of the respondent and the application of the co-respondent.
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