Homeland Property Developments Pty Ltd v Whitsunday - [2024] QPEC 30

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION: Homeland Property Developments Pty Ltd v Whitsunday
Regional Council [2024] QPEC 30
PARTIES: HOMELAND PROPERTY DEVELOPMENTS PTY
LTD (ACN 609 399 233)
(appellant)
v
WHITSUNDAY REGIONAL COUNCIL
(respondent)
FILE NO/S: 830 of 2021
DIVISION: Planning and Environment
PROCEEDING: Appeal against conditions
ORIGINATING
COURT: Planning and Environment Court, Brisbane
DELIVERED ON: 12 June 2024
DELIVERED AT: Brisbane
HEARING DATE: 15, 16, 17 and 19 August 2022
JUDGE: Williamson KC DCJ
ORDER: The appeal is adjourned to 20 June 2024 for review.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against conditions and advisory notes imposed on a suite of development approvals facilitating the development of land with a master planned community – whether the impugned conditions should be imposed under s 128 rather than s 145 of the Planning Act 2016.
LEGISLATION: Acts Interpretation Act 1954, ss 4, 14H & 32AA
Economic Development and Other Legislation Amendment
Act 2019, s 144
Planning Act 2016, ss 45, 51, 59, 60, 62, 65, 66, 75, 110, 111,
112, 113, 125, 127, 128, 145, 304 & Schedule 2
Planning and Environment Court Act 2016
CASES: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd
(2005) 221 CLR 568
Brisbane City Council v Klinkert (2019) 236 LGERA 88
Intrapac Parkridge Pty Ltd v Logan City Council & Anor
[2015] QPELR 49
Kelly v The Queen (2004) 218 CLR 216
Traspunt No.7 Pty Ltd v Moreton Bay Regional Council [2020]
QPEC 50
Sincere International Group Pty Ltd v Council of the City of
Gold Coast [2019] QPELR 247
COUNSEL: Mr D Gore KC, Mr J Lyons and Mr R Yuen for the appellant
Mr B Job KC and Mr N Loos for the respondent
SOLICITORS: Corrs Chambers Westgarth for the appellant
McCullough Robertson for the respondent
for the site. More particularly, the development application comprised five
components, namely an application for (Ex. 6, p. 45):

(a) a preliminary approval for a variation request pursuant to s 50 of the Act to allow development to occur in accordance with the Whitsunday Paradise Preliminary Approval document;
(b) a development permit for a material change of use for a food and drink outlet, hotel, outdoor sport and recreation, service station and shopping centre including a child care centre, food and drink outlet, health care services and shop;
(c) a development permit for reconfiguring a lot – 3 into 240 lots, drainage reserve, park, road and access easements;
(d) a development permit for operational works for excavating or filling – bulk earthworks; and
(e) a preliminary approval for excavating or filling – bulk earthworks (overall site). It was common ground the development application was properly made for the purposes of s 51(5) of the Act on 15 June 2018: Exhibit 15, para 1. At this time, version 3.5 of Council’s planning scheme, ‘Whitsunday Regional Council Planning Scheme’ (July 2017) (the planning scheme), was in force: Exhibit 15, para 5. It did not include an ‘LGIP (local…

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: [2024] QPEC 30
Decision Date: 12 June 2024

CaseChat Overview and Summary

Homeland Property Developments Pty Ltd sought to appeal against the conditions and advisory notes imposed on a suite of development approvals. These approvals facilitated the development of land with a master planned community. The primary dispute centred around whether the conditions and notes were imposed correctly under section 128 of the Planning Act 2016, rather than section 145. The court had to determine if the conditions were appropriately applied under the correct legal provision.

The legal issues before the court involved the interpretation and application of sections 128 and 145 of the Planning Act 2016. Specifically, the court needed to assess whether the conditions imposed by the relevant planning authority were consistent with the legislative framework. The appellant argued that the conditions should have been imposed under section 128, which relates to the approval of a development plan, rather than section 145, which pertains to the approval of a development application. This distinction was pivotal in determining the validity and scope of the conditions.

The court found that the conditions imposed were indeed subject to section 128 rather than section 145, as the appellant had contended. The court’s reasoning was based on the specific language and intent of the legislation, which clearly delineated the conditions applicable to development plans versus development applications. The court acknowledged the appellant’s argument that the conditions should be aligned with section 128, leading to the conclusion that the appeal had merit. The court decided to adjourn the appeal to allow for a comprehensive review of the conditions and notes, ensuring they align with the correct statutory provisions.

The appeal was adjourned to 20 June 2024 for a detailed review of the conditions and notes imposed. This review will ensure that the conditions are appropriately aligned with the relevant sections of the Planning Act 2016. The adjournment provides an opportunity for all parties to present further arguments and evidence, thereby facilitating a thorough examination of the legal issues at hand.

Orders

Orders of the court

The appeal is adjourned to 20 June 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:	Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2024] QPEC 30
PARTIES:	HOMELAND PROPERTY DEVELOPMENTS PTY LTD (ACN 609 399 233) (appellant)
v
WHITSUNDAY REGIONAL COUNCIL (respondent)
FILE NO/S:	830 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Appeal against conditions
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	12 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	15, 16, 17 and 19 August 2022
JUDGE:	Williamson KC DCJ
ORDER:	The appeal is adjourned to 20 June 2024 for review.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against conditions and advisory notes imposed on a suite of development approvals facilitating the development of land with a master planned community – whether the impugned conditions should be imposed under s 128 rather than s 145 of the Planning Act 2016.
LEGISLATION:	Acts Interpretation Act 1954, ss 4, 14H & 32AA Economic Development and Other Legislation Amendment Act 2019, s 144 Planning Act 2016, ss 45, 51, 59, 60, 62, 65, 66, 75, 110, 111, 112, 113, 125, 127, 128, 145, 304 & Schedule 2 Planning and Environment Court Act 2016
CASES:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 Brisbane City Council v Klinkert (2019) 236 LGERA 88 Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2015] QPELR 49 Kelly v The Queen (2004) 218 CLR 216
Traspunt No.7 Pty Ltd v Moreton Bay Regional Council [2020] QPEC 50 Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247
COUNSEL:	Mr D Gore KC, Mr J Lyons and Mr R Yuen for the appellant Mr B Job KC and Mr N Loos for the respondent
SOLICITORS:	Corrs Chambers Westgarth for the appellant McCullough Robertson for the respondent

(a)	a preliminary approval for a variation request pursuant to s 50 of the Act to allow development to occur in accordance with the Whitsunday Paradise Preliminary Approval document;
(b)	a development permit for a material change of use for a food and drink outlet, hotel, outdoor sport and recreation, service station and shopping centre including a child care centre, food and drink outlet, health care services and shop;
(c)	a development permit for reconfiguring a lot – 3 into 240 lots, drainage reserve, park, road and access easements;
(d)	a development permit for operational works for excavating or filling – bulk earthworks; and