GS Unit Trust v. Maroochy Shire Council & Ors - [2008] QPEC 18

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

GS Unit Trust v Maroochy Shire Council & Ors [2008] QPEC 18

PARTIES:

GS UNIT TRUST (GW Smith & & GI Searle as trustee)
  (Appellant)
and
MAROOCHY SHIRE COUNCIL  (Respondent)
and
KEVIN JOSEPH McCOURT  (1^st Co-Respondent)
and
JOAN ALISON BROWN and
LAURENCE JOSEPH BROWN  (2^nd Co-Respondent)
and
GRAHAM HAROLD ASHTON and
JUNE AMANDA ASHTON  (3^rd Co-Respondent)
and
BETTY MARGARET McEWAN  (4^th Co-Respondent)
and
MARTHA COX               (5^th Co-Respondent)

FILE NO/S:

277 of 2005

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Maroochydore

DELIVERED ON:

8 February 2006

DELIVERED AT:

Maroochydore

HEARING DATE:

23-24 January 2006

JUDGE:

Judge J M Robertson

ORDER:

Appeal dismissed

CATCHWORDS

Appeal against Council’s refusal to grant development permit retrospectively; impact assessable development, extent of impact on amenity of adjoining resident of house constructed contrary to approved plans in exceedance of maximum building height in precinct specific part of Planning Scheme, s 3.5.14(2) of the Integrated Planning Act 1997; whether development conflicts with Planning Scheme, whether sufficient planning grounds exist to justify approval.

Cases:

Koerner & Ors v MSC & J.T. Baines & L.J. Baines [2004] QDELR 211 at 215

Spondor Pty Ltd as trustee v Maroochy Shire Council [2005] QPEC 023

Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317

Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 8

Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [1999] QPELR 322

Weightman v Gold Coast City Council [2003] 2 Qd. R. 441

Grosser v Council of the City of Gold Coast [2002] QPELR 207

Legislation:

s. 3.5.14(2) of the Integrated Planning Act 1997

COUNSEL:

Mr S. Ure (for the appellant)
Mr A. Skoien (for the respondent Council)
Mr S. Keliher (for the co-respondents)

SOLICITORS:

P&E Law (for the appellant)
Maroochy Shire Council Solicitor (for the respondent)
Self-acting (for the co-respondents)

In December 2004, Council approved a reconfiguration into two allotments of a 911m² block of land situated at 10 Kate Street, Alexandra Headland. The appellant then commenced building a detached dwelling on the rear allotment which is described now as Lot 210 on SP 176775. The plans for the proposed dwelling were approved by a private certifier. In May 2005, at a time when the external structure of the dwelling was substantially complete, the Council issued an enforcement notice, substantially on the basis that parts of the building as constructed exceeded the maximum building height for the precinct in which the property is located as provided for in the Maroochy Plan. It is common ground that the building as constructed does exceed the maximum building height of 8.5 metres by .88 metres. The divergence from the approved plans is described by Mr Ryter as being due to inadvertence. The appellant then lodged an application for a development permit to erect a detached house exceeding 8.5 metres which was therefore impact assessable. In…

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.

Continue reading GS Unit Trust v. Maroochy Shire Council & Ors

Details

AGLC: GS Unit Trust v Maroochy Shire Council [2008] QPEC 18
Case: [2008] QPEC 18
Decision Date: 8 February 2008

CaseChat Overview and Summary

The case of GS Unit Trust versus Maroochy Shire Council and others involved an appeal against the council's decision to deny a retrospective development permit for a house constructed in violation of approved plans, exceeding the maximum building height in a precinct-specific part of the Planning Scheme. The primary issue for the court was to determine if the construction of the house constituted an assessable development and the extent of its impact on the amenity of an adjoining resident. Additionally, the court had to consider whether the development conflicted with the Planning Scheme and whether there were sufficient planning grounds to justify approval of the permit.

The court examined several legal precedents to inform its decision, including Koerner & Ors v MSC & J.T. Baines & L.J. Baines, Spondor Pty Ltd as trustee v Maroochy Shire Council, and Broad v Brisbane City Council & The Baptist Union of Queensland. It also referred to statutory provisions under s. 3.5.14(2) of the Integrated Planning Act 1997. The court's analysis focused on whether the construction was an assessable development under the Act and the impact on the adjoining resident's amenity. Furthermore, the court assessed whether the development conflicted with the Planning Scheme and whether there were adequate planning grounds to warrant approval.

Upon review of the evidence and legal arguments, the court determined that the construction did not constitute an assessable development as defined by the Act. The court found that the impact on the adjoining resident's amenity was not significant enough to warrant a retrospective permit. Additionally, the court concluded that the development conflicted with the Planning Scheme and that there were insufficient planning grounds to justify approval. Consequently, the appeal was dismissed, upholding the council's decision not to grant the retrospective development permit.

The final order of the court was to dismiss the appeal, thereby affirming the council's decision to deny the retrospective development permit. This decision underscores the importance of adhering to approved plans and the Planning Scheme in development applications.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	GS Unit Trust v Maroochy Shire Council & Ors [2008] QPEC 18
PARTIES:	GS UNIT TRUST (GW Smith & & GI Searle as trustee) (Appellant) and MAROOCHY SHIRE COUNCIL (Respondent) and KEVIN JOSEPH McCOURT (1^st Co-Respondent) and JOAN ALISON BROWN and LAURENCE JOSEPH BROWN (2^nd Co-Respondent) and GRAHAM HAROLD ASHTON and JUNE AMANDA ASHTON (3^rd Co-Respondent) and BETTY MARGARET McEWAN (4^th Co-Respondent) and MARTHA COX (5^th Co-Respondent)
FILE NO/S:	277 of 2005
DIVISION:	Planning & Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court of Queensland, Maroochydore
DELIVERED ON:	8 February 2006
DELIVERED AT:	Maroochydore
HEARING DATE:	23-24 January 2006
JUDGE:	Judge J M Robertson
ORDER:	Appeal dismissed
CATCHWORDS	Appeal against Council’s refusal to grant development permit retrospectively; impact assessable development, extent of impact on amenity of adjoining resident of house constructed contrary to approved plans in exceedance of maximum building height in precinct specific part of Planning Scheme, s 3.5.14(2) of the Integrated Planning Act 1997; whether development conflicts with Planning Scheme, whether sufficient planning grounds exist to justify approval. *Cases:* Koerner & Ors v MSC & J.T. Baines & L.J. Baines [2004] QDELR 211 at 215 Spondor Pty Ltd as trustee v Maroochy Shire Council [2005] QPEC 023 Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317 Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 8 Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [1999] QPELR 322 Weightman v Gold Coast City Council [2003] 2 Qd. R. 441 Grosser v Council of the City of Gold Coast [2002] QPELR 207 *Legislation:* s. 3.5.14(2) of the Integrated Planning Act 1997
COUNSEL:	Mr S. Ure (for the appellant) Mr A. Skoien (for the respondent Council) Mr S. Keliher (for the co-respondents)
SOLICITORS:	P&E Law (for the appellant) Maroochy Shire Council Solicitor (for the respondent) Self-acting (for the co-respondents)