Gelling v Cairns City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gelling & Ors  v Cairns City Council and Anor [2008] QPEC 38

PARTIES:

MICHAEL & KATHY GELLING, IAN HAYNES & DENISE KINGSTON, PETER & JUDY ROMER, BILL BRADLEY, FAY HUTCHISON, JANICE ROBERTS, DAVID LONERGAN, KATRINA SANTO AND DAVID FORD

Appellants

V

CAIRNS CITY COUNCIL

Respondent

&

CAIRNS & DISTRICT ISLAMIC CULTURAL AND BUILDING TRUST

Co-Respondent

FILE NO:

208 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, at Cairns

DELIVERED ON:

26 June 2008

DELIVERED AT:

Maroochydore

HEARING DATE:

29, 30 April & 1, 2 May 2008

JUDGE:

K S Dodds DCJ

ORDER:

The appeal will be dismissed.  The appeal is adjourned for conditions.

CATCHWORDS:

PLANNING – PLANNING LAW – material change of use – enlarging existing use – character precinct in Cairns Plan – whether compromise achievement of Desired Environmental Outcomes – whether conflict with the planning scheme – whether sufficient grounds to justify decision

Integrated Planning Act 1997 (Qld) s 2.1.3, s 2.1.7, s 3.5.14, s 4.1.50, s 4.1.52

Local Government (Planning and Environment) Act 1990 (Qld) s 4.4(1)(5A)

Cases cited:

Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Koerner & Ors v Maroochy Shire Council & Ors (2004) QPELR 211

Lewiac Pty Ltd v Council for the City of Gold Coast (1994) 83 LGERA 224

Prime Group Properties Limited v Brisbane City Council (1994) QPLR 153

Weightman v Gold Coast City Council (2002) 121 LGERA 161

Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41

COUNSEL:

D P Morzone for the appellants

P J Favell for the respondent

T L Fantin for the co-respondent

SOLICITORS:

Marino Moller Lawyers for the appellants

King & Company Solicitors for the respondent

p&e Law for the co-respondent

1. This is an appeal by submitters against approval (with conditions) by the respondent of an application by the co-respondent made on 22 December 2006 for a material change of use for a place of worship, a mosque (in the planning scheme, Cairns Plan, a place of assembly).  The acknowledgement notice by the respondent was dated 17 January 2007.

1. The appeal is by way of hearing anew.[1]  The co-respondent has the task of establishing the appeal should be dismissed.[2] 

   [1]Integrated Planning Act 1997 (Qld) (the Act) Section 4.1.52.

   [2]Integrated Planning Act 1997 (Qld) section 4.1.50(2).

1. The application for a material change of use sought to enlarge the existing use.  It involved an existing house being demolished and new buildings erected.  At the commencement of hearing the appeal, modified plans for the buildings were sought to be relied upon and a declaration sought that the modifications were a minor change.  They plainly were and I declared accordingly.

1. The application was impact assessable under Cairns Plan but not impact assessable (Inconsistent Use) a category provided for in Cairns Plan.  45…