Johnston v. Cardwell Shire Council

[2008] QPEC 58

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Johnston v Cardwell Shire Council [2008] QPEC 58

PARTIES:

B JOHNSTON
(Appellant)
v
CARDWELL SHIRE COUNCIL
(Respondent)

FILE NO/S:

175 of 2007

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

22 August 2008

DELIVERED AT:

Cairns

HEARING DATE:

19 August 2008

JUDGE:

Everson DCJ

ORDER:

CATCHWORDS:

PLANNING LAW– JURISDICTION OF REFERRAL AGENCY – RECONFIGURATION - “CREATING” NEW LOTS – Boundary realignment between two existing lots without changing the total number of lots.

Integrated Planning Act 1997 s 1.3.5
Integrated Planning Regulation 1998 Schedule 2 Table 2 Item 4

COUNSEL:

Mr D Morzone for the appellant

SOLICITORS:

Mrs L Bou-Samra, Miller Bou-Samra Lawyers for the appellant
Ms T Knauer of MacDonnells Law for the respondent

1. The appellant, Mr Johnston, is a cane farmer who has farmed his land at Old Tully Road, approximately three kilometres north of the township of Tully for many years.  This is a rural area dominated by the cultivation of sugar cane.

1. This appeal concerns two allotments, Lot 1 and Lot 2 on RP 715238 (“Lot 1”) and (“Lot 2”) respectively.  They cover an area of 5.06 hectares.  Lot 1 is a small lot containing a dwelling and curtilage.  Lot 2 contains the balance of the area, taking in not only an extensive tract of agricultural land but also two dwellings which are located side by side adjacent to the dwelling on Lot 1.

1. The appellant brought an application to reconfigure Lot 1 and Lot 2 to create two new lots which are described in the planning report submitted in support of the application as Proposed Lot 101 and Proposed Lot 102.  The effect of the application is summarised in this report as being that “Proposed Lot 101 will contain all three dwellings and no agricultural land.  Proposed Lot 102 will contain only the agricultural land”.  Diagrammatically, Proposed Lot 101 is represented as a 3520 square metre lot containing three dwellings in the south east corner of the land in question with Proposed Lot 102 covering the balance of the area, being 4.7 hectares.  Proposed Lot 101 is represented to be more than twice the size of Lot 1.

1. The application was made in terms seeking a development permit to “rearrange boundaries”.  The application was refused by the respondent on 10 May 2007 where it was described as an “Application for Development Permit for the Reconfiguration of a Lot (Boundary Realignment)”.  It is from this decision that the appeal is brought.

1. It is common ground between the parties that the application would fall within Item 4 of Table 2 of Schedule 2 of the Integrated Planning Regulation 1998 (“Item 4”) and require referral to the chief executive under the Vegetation Management Act 1999 as a concurrence agency (“the chief executive”) unless subsection (c) of Item 4 is not relevant. Subsection (c) requires that “2 or more lots are created”.

1. The appellant contends that there was no requirement to refer the application to the chief executive as the application merely involves the realignment of boundaries and no new lots are to be created.

1. Relevantly, s 1.3.5 of the Integrated Planning Act 1997 (“IPA”) defines reconfiguring a lot as including “creating lots by subdividing another lot” and “rearranging the boundaries of a lot by registering a plan of subdivision”. Plans of subdivision are addressed broadly in Part 7 of IPA with the term “plan” defined in s 3.7.1A as including “an agreement that reconfigures a lot by dividing land into parts of a lot immediately available for separate disposition or separate occupation”.

1. I have been asked to determine whether the application required referral to the chief executive pursuant to Item 4.

1. Clearly the application is properly classified as reconfiguration of a lot where two lots are created.  So much is evident by the use of the terminology, Proposed Lot 101 and Proposed Lot 102 in the planning report submitted in support of the application.  Further, the difference in size between Lot 1 and Proposed Lot 101 goes well beyond what could reasonably be contemplated by “rearranging the boundaries of a lot”.  The application effectively seeks to create two materially different lots from those which exist at present.

1. I am therefore of the view that the application required referral to the chief executive, however, given the fact that the chief executive has been made aware of the application from which the appeal has its genesis, and has expressed no concerns with respect to it, I am, as I have already indicated, prepared to excuse the non-compliance with this requirement utilising s4.1.5A of IPA. I therefore made an order reflecting this on 19 August 2008.