Hawkhaven Pty Ltd v Mackay Regional Council

Case [2017] QPEC 40

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hawkhaven Pty Ltd v Mackay Regional Council & Anor [2017] QPEC 40

PARTIES:

HAWKHAVEN PTY LTD

(Appellant)

v

MACKAY REGIONAL COUNCIL

(Respondent)

AND

BLACKS BEACH COVE NO.2 PTY LTD

(Co-Respondent by Election)

FILE NO/S:

No 4293, 4294, 4295 and 4296 of 2014

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

19 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

19 – 23 September 2016, 23 – 24 February 2017

JUDGE:

Searles DCJ

ORDER:

The orders will be in accordance with those in paragraph [228] of this judgment.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application for material change of use for commercial premises refused by Council – where development application assessed against current planning scheme – whether weight should be given to draft planning scheme – whether development application conflicts with relevant planning schemes – whether sufficient grounds exist to warrant approval

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where development application approved subject to conditions – whether conditions valid pursuant to section 345 of Sustainable Planning Act 2009 (Qld)

Sustainable Planning Act 2009 (Qld) s 314, s 324, s 326, s 345, s 493, s 495

Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157

Beck v Atherton Shire Council (1991) QPLR 56

Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104

Broad v Brisbane City Council & Anor (1986) 2 Qd R 317

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

Dalgety Australia Ltd v Brisbane City Council (1980) QPLR 198

DP Thoroughbred v Albert Shire Council [1986] QPLR 273

Elan Capital Corporation Pty ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209

Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPELR 711

Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor [1985] QPLR 343

Good-Mix Concrete Pty Ltd v Brisbane City Council (No.3) (1975) 31 LGERA 178

Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153

HA Bachrach Pty Ltd v Caboolture Shire Council [1996] QPELR 312

Jones v Dunkel (1959) 101 CLR 298

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675

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

Lockyer Valley Regional Council v Westlink Pty Ltd [2001] 185 LGERA 863

Maher v Hervey Bay City Council [2007] QPELR 123

Synergy Properties Partners No 2 Pty Ltd v Brisbane City Council [2016] QPEC 21

Waverley Road Developments Pty Ltd v Gold Coast City Council (2011) 187 LGERA 352

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

Westfield Management Ltd v Pine Rivers Shire Council  [2004] QPELR 337

Woolworths Ltd v Maryborough Shire Council (No 2) [2006] 1 Qd R…

Details
AGLC
Hawkhaven Pty Ltd v Mackay Regional Council [2017] QPEC 40
Case
[2017] QPEC 40
Decision Date

CaseChat Overview and Summary

In the case of Hawkhaven Pty Ltd v Mackay Regional Council, the appellant sought to challenge the respondent's refusal to approve a development application for a material change of use for commercial premises. The matter was heard by the Queensland Planning and Environment Court, with the primary focus on the assessment of the development application against the relevant planning schemes and the imposition of conditions on the approval of the application. The appellant, Hawkhaven, contended that the refusal to approve the development application was unjust and that the development application should be approved subject to certain conditions.

The key legal issues before the court were whether the draft planning scheme should be given any weight in the assessment of the development application and whether the development application conflicted with the relevant planning schemes. The court was also required to determine whether sufficient grounds existed to warrant the approval of the development application. Additionally, the court needed to assess the validity of the conditions imposed on the approval of the development application under section 345 of the Sustainable Planning Act 2009 (Qld).

In its judgment, the court considered the impact of the draft planning scheme on the assessment of the development application and determined that the draft planning scheme should not be given any weight, as it was not the relevant planning instrument at the time the development application was made. The court further held that the development application did not conflict with the relevant planning schemes and that there were sufficient grounds to warrant the approval of the development application. As for the conditions imposed on the approval of the development application, the court found them to be valid under section 345 of the Sustainable Planning Act 2009 (Qld).

The court allowed the appeal and approved the development application subject to conditions, which were deemed valid. The orders of the court will be in accordance with those outlined in paragraph [228] of the judgment.

Orders

Orders of the court

The orders will be in accordance with those in paragraph [228] of this judgment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 5 August 2011, this Court delivered judgment in respect of what were effectively competing development proposals by Hawkhaven and BBC for development of a local shopping centre, to include a supermarket and specialty stores (‘2011 Decision’).[5] The proposals and associated appeals were described in the reasons for judgment as follows:[5]Blacks Beach Cove No. 2 Pty Ltd v Mackay Regional Council & Anor [2011] QPEC 104. In the result, the Court refused the Hawkhaven development application for retail uses and found in favour of the BBC Proposal. On 5 July 2012, judgement was entered with an approval package for the BBC proposal (‘BBC Approval’). That development approval has not proceeded and the site of the BBC Proposal, directly south of the Subject Site on the other side of Blacks Beach Road, remains vacant. On 29 June 2016, BBC lodged a request to change an existing approval (extension to the currency period) to extend the approval to 5 July 2020. That application was granted so that the approval remains extant to that date. I turn now to the Shops MCU Appeal commenced on or about 31 October 2014. Under section 493 of the Sustainable Planning Act 2009 (Qld) (“SPA”), Hawkhaven bears the onus of establishing the appeal should be upheld. The appeal is by way of hearing anew. The Shops MCU proposal was impact assessable under section 314(2) and (3) of SPA and to be decided in accordance with section 324 and 326. In the event of conflict with a relevant instrument, including a planning scheme, any decision of an assessment manager must not conflict with that instrument unless there are sufficient grounds to justify the decision. The assessment decision making process of the appeal must, in accordance with section 495 of SPA, be based on laws and polices applying when the development application was made but weight may also be given to new laws and policies under section 495. There are two relevant planning instruments: – Under the Current Scheme, the land is located in the Mackay Frame Locality, the McCready’s Creek Precinct and the Urban Residential Zone, and under the Draft Scheme, in the Medium Density Residential Zone. The Draft Scheme is at a very advanced stage of the adoption process, the Council having written to the State seeking its approval to adopt the Draft Scheme and proceed to Step 9 pursuant to Statutory Guideline 01/16.[6][6]Exhibit 38. For completeness, I record that Hawkhaven advanced a number of complaints, both at the hearing and through written submissions as to Council’s late disclosure of the Draft Scheme. It submits that given the late disclosure, the relevant expert witnesses did not have the opportunity to properly and thoroughly consider the most recent version of the Draft Scheme.[7] [7]Appellant’s Written Submissions paragraph 71. There have been several versions of the Draft Scheme tendered in evidence, namely versions 0.8[8], 0.9[9], 0.10[10] and subsequent to the hearing, version 0.11[11], which is the most recent manifestation of the Draft Scheme. Hawkhaven, having initially prepared its case on the basis of version 0.8 of the Draft Scheme, was provided with disclosure in respect of version 0.9 shortly before the hearing commenced on 19 September 2016. On the first day of the hearing, Council confirmed it intended to rely on version 0.9.[12] Hawkhaven confirmed it was content to proceed on the basis of version 0.9.[13] [8]Exhibit 63.[9]Exhibit 22.[10]Exhibit 59.[11]Exhibit 64.[12]T1.6.11.[13]T1.8.1.

Ratio Decidendi

Legal Principle Established

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