May v Redland Shire Council

[2009] QPEC 137

[2009] QPEC 137

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3425 of 2006

JOHN MAY AND CINTIA MAY	Appellants
and
REDLAND SHIRE COUNCIL	Respondent

BRISBANE

..DATE 10/12/2009

ORDER

CATCHWORDS

Directions for further consideration where parties propounded alternative plans as the basis for a possible future reconfiguration consequent upon the court's intimating that a material change of use should be approved
HIS HONOUR:  The Court makes the following orders. 

Direct the Council to furnish a list of conditions it considers appropriate to plan J145B/1 dated 27th of July 2009, part of Exhibit 1 at the appeal hearing, on or before 4 p.m. on the 25th of January 2010.

Direct the appellant to provide a list of issues regarding the two alternative sets of conditions and the feasibility of retention of the farm dam by 4 p.m. on Wednesday the 3rd of February 2010.

Adjourn the appeal to the 5th of February 2010 before me.

Allocate the matter to the March 2010 sittings for a hearing of one day.  Liberty to apply.

Those orders are made in consequence of differences which the parties still have.  The Court's reasons published on the 23rd of October 2009 for allowing the appeal and a material change of use expressed the thought that the farm dam ought to be preserved.  That should not have been taken as the Court's final view.  However, the difficulties which the appellants' affidavit material read today asserts in the retention of the dam should not be accepted by the Court as representing the whole picture until the Council has had an opportunity to present evidence of its own.

The other issue concerns the layout of the possible future subdivision.  The appeal proceeded on the basis of a plan promulgated by the appellants which was not the only one they had had in contemplation over the months or years.  For want of any alternative the Court may well have accepted that plan for incorporation in the order resolving the appeal as representing what a reconfiguration yet to be applied for might look like.

The Council has just this month on a without prejudice basis provided its own plan which, in respects that seem to me modest, redesigns things to a certain extent.  It embodies a concession by the Council in the form of acceptance of a number of lots over and above proposed Lot 1, which was always special, falling below the benchmark 6,000 square metres in the planning documents.  Indeed, there were to be four, barely exceeding 4,500 square metres.

The Council's design it seems to me, very likely is a consequence of retention of the farm dam, the feasibility of which appears to me to be a matter for consideration on further evidence.  The Court is appreciative of the work that's been done in the Council and is provisionally of the view that what the Council proposes is consonant with what the Court had in mind.  It still would not have necessarily represented the reconfiguration that might in future be applied for and developed. 

Those observations aren't to exclude the possibility that the Court might yet settle on a provisional basis on the appellants' plan used in the appeal.  The parties need the opportunity and time to consider the implications of the contending plans, each of which ought to be accompanied by a set of development conditions proposed by the Council, if the parties and, perhaps in time, the Court are to gather to consider matters appropriately. 

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