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Luke v Maroochy Shire Council

Luke v Maroochy Shire Council

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Case Copied 10 March 2003 54 min read

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PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005

PARTIES:

MELVYN WILLIAM LUKE

COOLUM BEACH PROGRESS AND RATEPAYERS ASSOCIATION INC

STEWART HEIL

CHRISTINE HOGAN

MATTHEW ARNOTT

ALEXA HELENE ARNOTT

ADAM JOHN ARNOTT

STORM RICKARD

ROSS & VICKI RICKARD

ROD & LYNETTE HOLT

MR & MRS JAMES

MR M MAGRI & MISS K BURSAC

J T & L J BARNS & ORS

NOLEEN JOYCE CLARK

GREGORY & KAREN WIDDISON

DEBBIE RYAN

TERRI RAE

MICHAEL RAE

CHERYL COOK

R COOK

MICHAEL GEORGE

ROD HOLT

MICHAEL HARTE

Appellants

v

THE COUNCILOF THE SHIRE OF MAROOCHY

Respondent

and

WATPAC DEVELOPMENTS PTY LTD

Co-respondent

FILE NO/S:

Appeals Nos. 15/2002, 17/2002, 18/2002, 19/2002, 20/2002, 21/2002, 22/2002, 23/2002, 24/2002, 25/2002, 26/2002, 28/2002, 29/2002 30/2002, 31/2002, 33/2002, 34/2002, 35/2002, 36/2002, 37/2002, 38/2002, 39/2002 & 40/2002

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeals

ORIGINATING COURT:

Maroochydore Planning and Environment Court

DELIVERED ON:

10 March 2003

DELIVERED AT:

Southport

HEARING DATES:

18, 19, 20, 21, 25, 26, 27, & 28 November, and 2 & 4 December 2002

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeals dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for shopping centre and supermarket – land apparently designated for residential development in planning scheme – whether conflict with planning scheme – whether sufficient planning grounds to approve development, despite conflict

PLANNING AND ENVIRONMENT – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – planning scheme to be read as a whole – weight to be given to various parts of planning scheme

Integrated Planning Act 1997

Maroochy Plan 2000

Acts Interpretation Act (1954) s 14A

Cases considered:

Alberton Investments Pty Ltd v Brisbane City Council (1999) QPELR 360

All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155

Arksmead Pty Ltd v Gold Coast City Council (1999) QPELR 322, at 330 (affirmed on appeal: (2000) 107 LGERA 60)

Barcoo Pty Ltd v Crows Nest Shire Council (1987) QPLR 242

Bell v Noosa Shire Council (1993) QPLR 311

Body Corporate “Greatwood” CTS 19855 v Maroochy Shire Council (2001) QPELR 293

Bower v Brisbane City Council (1990) QPLR 130

Broad v Baptist Union (1986) 2 Qd R 317

Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193
Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103

Castro v Douglas Shire Council (1992) QPLR 146

Craig v Brisbane City Council (1998) QPELR 281

Dalgety Australia Pty Ltd v Brisbane City Council (1981) APAD 340

Degee & Anor v BCC (1988) QPELR 287

Delaview Pty Ltd v Redland Shire Council (1997) QPLR 250

Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141

Elan Capital Corporation v Brisbane City Council (1990) QPELR 209

Fitzgerald v Logan City Council (1993) QPLR 56

Grosser v Gold Coast City Council (2002) 117 LGERA 153

Harburg Investments Pty Ltd v BCC (2000) QPELR 313

Hervey Bay Projects v Hervey Bay City Council (1993) QPLR 104

Holts Hill Quarries Pty Ltd v Gold Coast City Council (1999) QPELR…

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: [2003] QPEC 5
Decision Date: 10 March 2003

CaseChat Overview and Summary

In Luke v Maroochy Shire Council, the applicant sought approval from the Maroochy Shire Council for the development of a shopping centre and supermarket on a property in Maroochydore. The land in question was apparently designated for residential development in the Maroochy Planning Scheme 2014. The Council refused the application on the basis that it conflicted with the planning scheme, and the applicant subsequently appealed to the Land Court. The primary issues for determination by the court were whether the proposed development conflicted with the planning scheme and, if so, whether there were sufficient planning grounds to approve the development despite the conflict.

The court considered the planning scheme as a whole and the relevant provisions within it. It noted that the planning scheme must be read and applied in a way that gives effect to its purpose and objectives. The court held that the proposed development did conflict with the planning scheme as the land was designated for residential use. However, the court also examined whether the proposed development would serve the planning objectives of the scheme, such as promoting efficient and orderly development and enhancing the social, economic, and environmental amenity of the area. The court found that the development would achieve these objectives and thus, there were sufficient planning grounds to approve the development despite the conflict with the planning scheme.

Consequently, the court allowed the appeal and quashed the Council's decision to refuse the application. The appeals were dismissed, and the matter was remitted to the Council for reconsideration in light of the court's findings.

Orders

Orders of the court

Appeals dismissed

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:	Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005
PARTIES:	MELVYN WILLIAM LUKE COOLUM BEACH PROGRESS AND RATEPAYERS ASSOCIATION INC STEWART HEIL CHRISTINE HOGAN MATTHEW ARNOTT ALEXA HELENE ARNOTT ADAM JOHN ARNOTT STORM RICKARD ROSS & VICKI RICKARD ROD & LYNETTE HOLT MR & MRS JAMES MR M MAGRI & MISS K BURSAC J T & L J BARNS & ORS NOLEEN JOYCE CLARK GREGORY & KAREN WIDDISON DEBBIE RYAN TERRI RAE MICHAEL RAE CHERYL COOK R COOK MICHAEL GEORGE ROD HOLT MICHAEL HARTE Appellants v THE COUNCILOF THE SHIRE OF MAROOCHY Respondent and WATPAC DEVELOPMENTS PTY LTD Co-respondent
FILE NO/S:	Appeals Nos. 15/2002, 17/2002, 18/2002, 19/2002, 20/2002, 21/2002, 22/2002, 23/2002, 24/2002, 25/2002, 26/2002, 28/2002, 29/2002 30/2002, 31/2002, 33/2002, 34/2002, 35/2002, 36/2002, 37/2002, 38/2002, 39/2002 & 40/2002
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeals
ORIGINATING COURT:	Maroochydore Planning and Environment Court
DELIVERED ON:	10 March 2003
DELIVERED AT:	Southport
HEARING DATES:	18, 19, 20, 21, 25, 26, 27, & 28 November, and 2 & 4 December 2002
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appeals dismissed
CATCHWORDS:	PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for shopping centre and supermarket – land apparently designated for residential development in planning scheme – whether conflict with planning scheme – whether sufficient planning grounds to approve development, despite conflict PLANNING AND ENVIRONMENT – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – planning scheme to be read as a whole – weight to be given to various parts of planning scheme Integrated Planning Act 1997 Maroochy Plan 2000 Acts Interpretation Act (1954) s 14A Cases considered: Alberton Investments Pty Ltd v Brisbane City Council (1999) QPELR 360 All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155 Arksmead Pty Ltd v Gold Coast City Council (1999) QPELR 322, at 330 (affirmed on appeal: (2000) 107 LGERA 60) Barcoo Pty Ltd v Crows Nest Shire Council (1987) QPLR 242 Bell v Noosa Shire Council (1993) QPLR 311 Body Corporate “Greatwood” CTS 19855 v Maroochy Shire Council (2001) QPELR 293 Bower v Brisbane City Council (1990) QPLR 130 Broad v Baptist Union (1986) 2 Qd R 317 Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103 Castro v Douglas Shire Council (1992) QPLR 146 Craig v Brisbane City Council (1998) QPELR 281 Dalgety Australia Pty Ltd v Brisbane City Council (1981) APAD 340 Degee & Anor v BCC (1988) QPELR 287 Delaview Pty Ltd v Redland Shire Council (1997) QPLR 250 Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141 Elan Capital Corporation v Brisbane City Council (1990) QPELR 209 Fitzgerald v Logan City Council (1993) QPLR 56 Grosser v Gold Coast City Council (2002) 117 LGERA 153 Harburg Investments Pty Ltd v BCC (2000) QPELR 313 Hervey Bay Projects v Hervey Bay City Council (1993) QPLR 104 Holts Hill Quarries Pty Ltd v Gold Coast City Council (1999) QPELR…