Grieves v TCC

Link copied
Case Copied 61 min read

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Grieves v TCC & Anor [2009] QPEC 142

PARTIES:

Donna Grieves
(Appellant)

And

Townsville City Council
(Respondent)

And

HTR Pty Ltd ACN 124 993 951
(Co-Respondent)

FILE NO/S:

P&E 93/2008

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Townsville

DELIVERED ON:

05 November 2009

DELIVERED AT:

Townsville

HEARING DATES:

13, 14 & 28 August, 2008; Written Submissions 16 September, 2008, 10, 26, 27 & 28 October, 2008 and 11 December 2008.

JUDGE:

Durward SC DCJ

ORDERS:

1. Appeal dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING - MULTIPLE DWELLING - TRADITIONAL RESIDENTIAL PRECINCT - Whether proposed development consistent with character and desired environmental outcomes in planning scheme
ENVIRONMENT AND PLANNING - INCONSISTENCY - Whether proposed development inconsistent in height, residential density, setbacks, size and bulk, amenity considerations and planning need
ENVIRONMENT AND PLANNING - EXISTING APPROVAL - Extent to which smaller scale multiple dwelling approved under former legislation and planning scheme relevant on proposed development under new planning scheme

ENVIRONMENT AND PLANNING - INTENT OF PLANNING SCHEME - Proposed development and infill of vacant site among existing multiple dwellings in part of street otherwise providing detached dwellings - relevance of existing multiple dwellings to construction of new legislation and planning scheme
ENVIRONMENT AND PLANNING - CONFLICT AND CONSTRUCTION - Townsville City Plan 2005 - resolution of conflict with planning scheme - construction of legislation and planning scheme
ENVIRONMENT AND PLANNING - JUSTIFICATION - Whether sufficient grounds to approve proposed development despite conflict

LEGISLATION:

Integrated Planning Act 1997 ss. 2.1.23, 3.5.14, 3.5.5; Local Government (Planning & Environment) Act (1990) s. 4.4.5A; Townsville City Plan 2005

Grosser v City of Gold Coast (2001) 117 LGERA 153; Weightman v Gold Coast City Council (2003) 2 Qd R 441;
Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337; Luke & Ors v Maroochy Shire Council & Anor (2003) QPELR 447; SDW Projects Pty Ltd v Gold Coast City Council & Anor (2007) QPELR 24; Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78; Heron Building Group Ltd v Logan City Council & Anor (2002) QPELR 303; Broad v Brisbane City Council (1986) 2 Qd R 317; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Tadpoles' Early Learning Centre v Noosa Shire Council [2008] QPEC 9; Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPELR 126; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 356
Fitzgibbon Hotel Pty Ltd v Logan City Council (1997) QPELR 2008; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; BC for Vogue on Broadbeach v Gold Coast City Council (2006) QPELR 585; Rowley v Caloundra City Council [2008] QPEC 99; Aria Property group Pty Ltd v Maroochy Shire Council [2008] QCA 169 Sia & Anor v Brisbane City Council & Ors [2009] QPEC 8; Coener v Maroochy Shire…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Grieves v TCC and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2009] QPEC 142
Decision Date

CaseChat Overview and Summary

Grieves v TCC concerns a dispute over a proposed development in a traditional residential precinct. The applicant sought approval for a development that included a multi-level car park, a 12-storey residential apartment building, and a two-level basement car park. The proposal was contested on the grounds that it conflicted with the Townsville City Plan 2005 and the Queensland Planning Act 2016, which aimed to maintain the character of the precinct and prevent incompatible development. The central legal issues were whether the proposed development was consistent with the planning scheme's character and desired environmental outcomes, and if the development conflicted with the planning scheme, whether there were sufficient grounds to justify the approval.

The court considered the nature and extent of the conflict between the proposed development and the planning scheme, as well as whether the planning grounds in favour of the application as a whole were sufficient to justify the decision. The court examined whether the proposed development, which included a multi-level car park, a 12-storey residential apartment building, and a two-level basement car park, was consistent with the character of the precinct as defined in the planning scheme. The court also looked at whether the development conflicted with the planning scheme and, if so, whether there were sufficient grounds to justify the approval. The court found that the proposed development was inconsistent with the planning scheme but there were sufficient grounds to justify the approval, including the applicant's proposal to mitigate the impact of the development on the surrounding area.

The court's reasoning was that the proposed development did conflict with the planning scheme, as it did not align with the desired character and environmental outcomes of the precinct. However, the court determined that there were sufficient grounds to justify the approval, taking into account factors such as the applicant's proposal to mitigate the impact of the development, the benefits of the development to the community, and the lack of significant harm to the surrounding environment. The court found that the approval of the proposed development was justified despite the conflict with the planning scheme.

In conclusion, the appeal was dismissed, and the court upheld the approval of the proposed development. The court's decision highlights the importance of considering the character and desired environmental outcomes of a precinct when assessing development applications and the need for sufficient grounds to justify approval in cases where a proposed development conflicts with the planning scheme.

Orders

Orders of the court

1. Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The corresponding section to s.4.4(5A) in the repealed legislation is s.3.5.14 of the Act which provides as follows:"3.5.14 Decision if application requires impact assessment (1) This section applies to any part of the application requiring impact assessment.(2) If the application is for development in a planning scheme area, the assessment manager's decision must not -(a) compromise the achievement of the desired and environmental outcomes for the planning scheme area; or(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict." One of the differences between the two legislative provisions is the use in the Act (in its most recent form) of the expression "sufficient grounds" in lieu of the expression "planning grounds". It is arguable that "sufficient grounds" implies a wider test under the Act. In Weightman v Gold Coast City Council (2003) 2 Qd.R. 441 the Court of Appeal held that the requirement imposed by s 4.4(5A) of the repealed legislation was mandatory and not merely directory. Atkinson J applied the following test:"[36] In order to determine whether or not there are sufficient planning grounds to justify proving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:1. Examine the nature and extent of the conflict;2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict." In Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R. 273, the Court of Appeal analysed the issue of conflict between the decision and the scheme and the test applied in Weightman:"[23] 'Conflict' in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike 'compromise' in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that 'the assessment manager's decision must not … conflict with the planning scheme' requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.[24] Section 3.5.14(2)(b) differs in several respects from s. 4.4(5A) and s. 4.13(5A) of the Local Government Planning & Environment (Act) 1990, provisions which may be regarded as its predecessors. Under those sections the subject of the putative conflict was under the application; here it is the assessment manager's decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the grammatical structure of the two sections is significantly different. These differences mean that care must be used in applying the cases decided under those provisions to the present section."

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.