Loakes v Logan City Council - [2011] QPEC 144

[2011] QPEC 144

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 700 of 2010 and
P & E Appeal No 4802 of 2011

LISA LOAKES	Appellant
and
LOGAN CITY COUNCIL	Respondent

BRISBANE

..DATE 05/12/2011

JUDGMENT

CATCHWORDS

PLANNING AND ENVIRONMENT – DECLARATION AS TO WHETHER DEVELOPMENT IS SELF ASSESSABLE OR CODE ASSESSABLE - COMMUNITY CARE CENTRE – COMMUNITY PURPOSES DOMAIN – WHETHER DEVELOPMENT COMPLIES WITH ACCEPTABLE SOLUTION AS TO DENSITY - WHETHER THE COURT SHOULD CONSTRUE THE ACCEPTABLE SOLUTION AS IF THE CURRENT WORDING WAS DELETED AND SUBSTITUTED WITH THE WORDS “NO ACCEPTABLE SOLUTION PROVIDED” – WHETHER THE COURT MAY READ WORDS INTO STATUTE

HIS HONOUR: In this matter the primary issue for determination today is whether a proposal for a community care centre is self-assessable or code assessable.

The land upon which the centre is proposed falls within the Community Purposes domain under the planning scheme for the Gold Coast. That planning scheme remains of relevance because the land was once part of the Gold Coast before being transferred to Logan City. It is common ground that the relevant planning instrument remains the planning instrument for the Gold Coast.

In accordance with the provisions applicable to the Community Purposes domain, the proposal will be self-assessable if it complies with the acceptable solutions to the first five performance criteria in the Community Purposes Domain Place Code. It is common ground that it complies with the acceptable solutions to performance criteria 1, 2, 4 and 5.

The provision which remains in issue is that dealing with accommodation density in AS3. That provision and its corresponding performance criteria is as follows; performance criteria 3,

"Accommodation density must be low, to maintain and enhance the community service nature of the land". AS3, "The dwelling density does not exceed one detached dwelling per Lot".

On its face the acceptable solution is quite straightforward and capable of ready application. It is common ground that the density of the proposal does not exceed that in AS3, read in a literal way, because the proposal does not contain any detached dwelling. Rather, it is a use of a different kind. In contending that the proposal is, nevertheless, code assessable the Council invites the Court to adopt something other than the literal construction of AS3.

The structure of the performance criteria and acceptable solutions in the relevant planning scheme is such that a particular acceptable solution or solutions are provided with respect to each performance criteria except where the acceptable solution states, "No acceptable solution provided". Where that occurs, the planning scheme provides as follows: "Where no acceptable solution is provided for performance criterion in the code, development must provide its own solution to meet that particular performance criterion".

Counsel for the Council contended that the provision should be interpreted as if AS3 provided, "No acceptable solution provided" in lieu of the words which are actually used. He frankly acknowledged the difficulty of the task of persuading the Court to depart from the otherwise clear words…

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: [2011] QPEC 144
Decision Date: 05/12/2011

CaseChat Overview and Summary

In Loakes v Logan City Council, the appellant sought a declaration regarding whether a proposal for a community care centre was self-assessable or code assessable under the planning scheme for the Gold Coast. The primary issue was whether the development complied with the acceptable solution regarding accommodation density. The appellant argued that the proposal complied with the acceptable solution, while the council contended that the proposal should be considered code assessable because it did not meet the acceptable solution criteria.

The court examined whether the acceptable solution should be interpreted in a manner that would result in the provision being read as if it stated "no acceptable solution provided." The court found that such an interpretation would amount to legislation rather than construction and was not permissible under the principles of statutory interpretation. The court concluded that the acceptable solution was straightforward and consistent with other provisions in the planning scheme. It was also noted that the provision had a specific purpose and could apply to various forms of development, not just self-assessable ones. Therefore, the court held that the proposal met the acceptable solution and was self-assessable.

The court dismissed the appeal, noting that the appellant no longer wished to pursue that form of development. A declaration was made in accordance with the originating application, stating that the proposal was self-assessable.

Orders