Grabbe v Maroochy Shire Council - [2005] QDC 131

DISTRICT COURT OF QUEENSLAND

CITATION:	Grabbe v Maroochy Shire Council [2005] QDC 131
PARTIES:	RON GRABBE (Applicant) AND MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO/S:	55 of 2005
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	6 May 2005
DELIVERED AT:	Maroochydore
HEARING DATE:	14 April 2005
JUDGE:	Judge J.M. Robertson
ORDER:	Condition 52(a) of the conditions of approval as imposed by a consent order made by this court at Brisbane in Appeal No. 2824 of 1998 on 11 December 1998, be deleted.
CATCHWORDS:	Application for declarations and for deletion of condition of approval pursuant to s3.5.33 of the Integrated Planning Act; whether there has been a material change of use on adjoining land and abandonment of agricultural use; whether condition is still reasonably required and/or an unreasonable imposition on the use of the land. *Cases cited:* Fox & Anor v Brisbane City Council [2003] QPELR 215 Maroochy Shire Council v Burns [2001] QPELR 475 at 482 Leeming v Port Adelaide City Council (1987) LGRA 296 Cornerstone Properties Ltd v Caloundra City Council [2004] QPELR 044 Proctor v Brisbane City Council (1993) 81 LGERA 398 *Legislation:* Integrated Planning Act: ss1.3.5, 3.5.30, 3.5.33 Planning Environment Court Rules 1999: Rule 8
COUNSEL:	Mr D. Fahl (solicitor for the applicant) Mr M. Williamson (for the respondent)
SOLICITORS:	p&e Law (for the applicant) G N Phillips Legal Services (for the respondent)

ACN 059 706 902 Pty Limited is the registered proprietor of five blocks of land in the Orange County estate at Palmwoods described as Lots 18 to 22 SP 123703, County of Canning, Parish of Mooloolah (“the land”). Ron Grabbe is the sole director and shareholder of this company which has consented to him applying to this Court for approval to delete a condition of approval imposed by a consent order of this court on 11 December 1998.

The court made consent orders in an appeal by Orange County Pty Ltd against a conditional approval for a staged subdivision of certain lands of which the land formed a part. The subdivision has now been completed.

At the time of the court order, the land (then not subdivided) adjoined Lot 1 RP 110268 on which was conducted a small agricultural enterprise, in particular, macadamia nut farming. The applicant now applies to have condition 52(a) of the court order deleted on a number of grounds.

Condition 52(a) is in these terms:

“Applicant to provide Council with a lease over Lots 18 to 22 and to provide a vegetated buffer over these lots to Department of Natural Resources guidelines to protect balance of Stage 1 from Agricultural spray use. Landscape plan of Buffer to be submitted to Department of Natural Resources for approval prior to planting. Lease to Council will be surrendered by Council on Material Change of use occurring on Lot 1 RP 110268. All fees associated with the preparation of Lease are to be borne by the developer. Orange County to be responsible for maintenance of the Lots with Council responsible for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QDC 131
Decision Date: 6 May 2005

CaseChat Overview and Summary

The parties in the case of Grabbe v Maroochy Shire Council were the applicant, Grabbe, and the respondent, Maroochy Shire Council. The dispute centred around the interpretation and application of a condition of approval imposed on a piece of land, specifically whether there had been a material change of use on adjoining land and whether the agricultural use had been abandoned. The matter was heard in the Planning and Environment Court of Queensland. The applicant sought declarations and the deletion of a specific condition of approval pursuant to section 3.5.33 of the Integrated Planning Act. The legal issues that the court had to decide included whether there had been a material change of use on the adjoining land and whether the condition was still reasonably required or had become an unreasonable imposition on the use of the land.

The court examined the evidence presented and considered relevant case law and legislation. The court found that the condition in question had been imposed based on the assumption that the adjoining land was being used for agricultural purposes. However, the evidence showed that there had been a material change of use on the adjoining land, and the agricultural use had been abandoned. The court also considered whether the condition was still reasonably required or if it had become an unreasonable imposition on the use of the land. After careful consideration, the court concluded that the condition was no longer reasonably required and had become an unreasonable imposition on the use of the land.

In light of the court's findings, the applicant's application for the deletion of the condition was successful. The court ordered that condition 52(a) of the conditions of approval as imposed by a consent order made by this court at Brisbane in Appeal No. 2824 of 1998 on 11 December 1998 be deleted. This decision provided the applicant with greater flexibility in the use of the land and relieved them of the burden of an outdated and unreasonable condition.

Orders

Orders of the court

Condition 52(a) of the conditions of approval as imposed by a consent order made by this court at Brisbane in Appeal No. 2824 of 1998 on 11 December 1998, be deleted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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