May v Redland City Council

[2013] QPEC 69

PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 3558 of 2013
JOHN MAY and ANOTHER Applicant
and
REDLAND CITY COUNCIL Respondent
BRISBANE
10.36 AM, FRIDAY, 20 SEPTEMBER 2013
JUDGMENT
CATCHWORDS
Developer approval changed to delete requirement for retention of a farm dam considered useful for wildlife in deference to practical difficulties
Sustainable Planning Act 2009 s369

HIS HONOUR: I make an order as per initialled draft. The effect of the order made is to change the detail of a reconfiguration approved by an order of Judge Rackemann that had become possible in consequence of the outcome of an appeal decided by me, May v Redland Shire Council [2009] QPEC 106; [2010] QPELR 225 The best efforts of all involved to save a farm dam, which in the approved plan of reconfiguration straddled lots 7 and 8, have been defeated by various considerations. It’s now proposed, with that the Council, presumably, reluctantly agreeing, is that the dam may be filled, contrary to earlier expectations that it would be available for wildlife enjoying the environment which the development conditions sought to preserve. Wildlife now won’t have that particular facility. There seems no escape from bowing to the exigencies of what is practicable on the ground.

______________________

CaseChat Overview and Summary

John May and another applicant sought a review of a decision made by the Redland City Council, which concerned the approval of a developer's plan. The crux of the dispute was the requirement for the retention of a farm dam, deemed beneficial for wildlife, which was to be located straddling lots 7 and 8. The applicants appealed against the council's decision to allow the filling of the dam, arguing that it would be detrimental to the wildlife in the area. The matter was brought before the Planning and Environment Court of Queensland to determine the legality and appropriateness of the council's decision under the Sustainable Planning Act 2009.

The legal issues that the court had to address included whether the council had the authority to approve the developer's plan, which included the eventual filling of the farm dam, and whether the council's decision was in line with the objectives of the Sustainable Planning Act. The court also needed to consider the balance between the preservation of wildlife and the practical considerations of implementing the developer's plan. Furthermore, the court had to assess if the council's decision to allow the dam to be filled was justified in light of the circumstances.

In reaching its decision, the court examined the evidence presented by both parties, including the practical difficulties encountered in retaining the farm dam. The court recognised the efforts made by all parties to preserve the dam but ultimately concluded that the practicalities on the ground necessitated the filling of the dam. The court found that the council had the authority to approve the developer's plan and that its decision was in accordance with the Sustainable Planning Act. The court accepted that the exigencies of practicality outweighed the preservation of the dam for wildlife. Consequently, the court upheld the council's decision to allow the filling of the dam.

The court ordered the modification of the developer's plan to reflect the council's decision to fill the farm dam, as initially drafted. The order was made to align with the outcome of a previous appeal, which had enabled the reconfiguration of the developer's plan. This decision meant that the dam would no longer be available for wildlife, contrary to earlier expectations, and the applicants' appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established