Heap & Ors v Logan City Council - [2023] QPEC 52

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Heap & Ors v Logan City Council [2023] QPEC 52

PARTIES:

SABINE HEAP, GEOFFREY HEAP, ANDREW DAVEY & COURTNEY WHITE
(appellants)

v

LOGAN CITY COUNCIL
(respondent)

FILE NO/S:

630 of 2022

DIVISION:

Planning and Environment

PROCEEDING:

Applicant appeal against part approval

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5, 6, 7 and 9 June 2023

JUDGE:

Williamson KC

ORDER:

THE APPEAL IS ADJOURNED TO 31 JANUARY 2024 FOR REVIEW.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where appeal against respondent’s decision to grant a part approval for a development application seeking approval for reconfiguration of a lot and the making of a material change of use (childcare centre) – where the land is included in the Rural residential zone – whether the childcare centre is appropriately located – whether the childcare centre will have unacceptable character impacts – whether there is non-compliance with the respondent’s planning scheme – whether weight should be given to an amendment to the planning scheme - whether there is a need for the childcare centre – whether there are matters supportive of approval – whether the childcare centre should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.

CASES:

Abeleda v Brisbane City Council (2020) 6 QR 441
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524
Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2020] QPELR 899
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309
Walker v Noosa Shire Council [1983] 2 Qd R 86
Wilhelm v Logan City Council & Ors [2021] QPELR 1321

LEGISLATION:

Planning Act 2016, ss 45, 59 and 60
Planning and Environment Court Act 2016, s 45

COUNSEL:

Mr M Batty with Mr R Yuen for the appellants
Mr C Hughes KC with Mr B Rix for the respondent

SOLICITORS:

Connor O’Meara for the appellants
Minter Ellison Gold Coast for the respondent

Introduction

The appellants seek approval to develop land in the Rural residential zone with a Childcare centre offering 105 long day care places. To obtain approval, an impact assessable development application was made to Council for two development permits, one authorising the reconfiguration of a lot (1 into 2) and the other authorising the making of a material change of use. The development application was publicly notified and attracted 12 properly made submissions. The submissions did not support approval.
On 10 March 2022, Council decided to approve the development application in part. The reconfiguration component was approved, subject to conditions. The material change of use was refused. The decision to grant a part approval was communicated by way of decision notice. Reasons for refusing part of…

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.

Keep reading for free

Create a free CaseChat account to read Heap & Ors v Logan City Council 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: [2023] QPEC 52
Decision Date: 22 December 2023

CaseChat Overview and Summary

Heap and others have appealed against the Logan City Council’s decision to grant a part approval for a development application that sought reconfiguration of a lot and the making of a material change of use to establish a childcare centre. The land in question is situated in the Rural residential zone. The applicants argued that the proposed childcare centre was not appropriately located and would have unacceptable character impacts, and that the respondent had not complied with its planning scheme. They also questioned the weight to be given to an amendment to the planning scheme, the need for the childcare centre, and whether there were matters supportive of approval. The applicants further sought a refusal of the childcare centre under section 60(3) of the Planning Act 2016.

The court had to decide whether the childcare centre was appropriately located, whether it would have unacceptable character impacts, and if there was non-compliance with the planning scheme. The court also needed to consider the weight to be given to the amendment to the planning scheme, the need for the childcare centre, and whether there were matters supportive of approval. The court had to exercise its discretion under section 60(3) of the Planning Act 2016 to determine whether the childcare centre should be approved or refused.

The court found that the matter required further review and therefore adjourned the appeal to 31 January 2024 for the council to conduct a thorough review of the application. The court did not make any findings on the merits of the appeal and noted that the council would need to consider all relevant factors before making a decision. The court emphasised the importance of ensuring that the planning scheme was properly applied and that all relevant considerations were taken into account. The applicants’ appeal was adjourned, and no further orders were made at this stage.

Orders

Orders of the court

THE APPEAL IS ADJOURNED TO 31 JANUARY 2024 FOR REVIEW.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Heap & Ors v Logan City Council [2023] QPEC 52
PARTIES:	SABINE HEAP, GEOFFREY HEAP, ANDREW DAVEY & COURTNEY WHITE (appellants) v LOGAN CITY COUNCIL (respondent)
FILE NO/S:	630 of 2022
DIVISION:	Planning and Environment
PROCEEDING:	Applicant appeal against part approval
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	22 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	5, 6, 7 and 9 June 2023
JUDGE:	Williamson KC
ORDER:	THE APPEAL IS ADJOURNED TO 31 JANUARY 2024 FOR REVIEW.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where appeal against respondent’s decision to grant a part approval for a development application seeking approval for reconfiguration of a lot and the making of a material change of use (childcare centre) – where the land is included in the Rural residential zone – whether the childcare centre is appropriately located – whether the childcare centre will have unacceptable character impacts – whether there is non-compliance with the respondent’s planning scheme – whether weight should be given to an amendment to the planning scheme - whether there is a need for the childcare centre – whether there are matters supportive of approval – whether the childcare centre should be approved or refused in the exercise of the discretion under s 60(3) of the Planning Act 2016.
CASES:	Abeleda v Brisbane City Council (2020) 6 QR 441 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524 Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors [2020] QPELR 899 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309 Walker v Noosa Shire Council [1983] 2 Qd R 86 Wilhelm v Logan City Council & Ors [2021] QPELR 1321
LEGISLATION:	Planning Act 2016, ss 45, 59 and 60 Planning and Environment Court Act 2016, s 45
COUNSEL:	Mr M Batty with Mr R Yuen for the appellants Mr C Hughes KC with Mr B Rix for the respondent
SOLICITORS:	Connor O’Meara for the appellants Minter Ellison Gold Coast for the respondent