May v Redland Shire Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

May & Anor v Redland Shire Council [2009] QPEC 106

PARTIES:

JOHN MAY and CINTIA MAY

(Appellants)

v

REDLAND SHIRE COUNCIL     

(Respondent)

FILE NO/S:

BD3425 of 2006

DIVISION:

Appellate

PROCEEDING:

Appeal against refusal of material change of use for “residential subdivision”

ORIGINATING COURT:

Planning & Environment Court

DELIVERED ON:

23 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 and 11 August 2009, written submissions received to 15 September 2009

JUDGE:

Robin QC DCJ

ORDER:

Appeal allowed

CATCHWORDS:

Integrated Planning Act 1997 (IPA) s 3.5.5(2)(d), s 3.5.30, s 4.1.52(2) – developer’s site in environmentally sensitive location – part designated Special Protection Area – development application made under transitional planning scheme with which it was compliant, subject to issues under Council Policies regarding parks and recreation contributions – Council refusal based on proposal cutting across new planning arrangements, in particular a draft structure plan for the area – relevance of an existing approval for a golf driving range on the site which had been implemented, so that site was totally cleared, and afforded little by way of environmental value – developer offered a comprehensive Greenspace Management Plan with large areas subject to covenants to be registered – whether preferable to have covenant areas privately owned or dedicated – court concerned at loss of lot yield consequent upon dedication

COUNSEL:

C Hughes SC for the Appellants

S Ure for the Respondent

SOLICITORS:

McCarthy Durie Ryan Neil Solicitors for the Appellants

Corrs Chambers Westgarth for the Respondent

1. Mr and Mrs May appeal against Council’s refusal advised by a Decision Notice dated 30 October 2006 of their development application for a material change of use of their six hectare site at 11 Rachow Street, Thornlands to “residential subdivision” from “residence”.  The application was made in 2005.  Although made under the Town Planning Scheme for the Shire of Redland which commenced in 1988 and includes the Redland Shire Strategic Plan 1998, the application was refused (and continues to be opposed) by the Council principally on the basis of its cutting across the new “Redland Planning Scheme” which commenced on 30 March 2006.  It is the one referred to in the stated grounds for refusal, which commenced:

“2.    Grounds for Refusal.

1.  The application is contrary to the Redland Planning Scheme.

The proposal for a Park Residential zone would lend itself to subdividing the subject lot into Park Residential lots.  The subject site is situated within the Emerging Urban Community zone, whereby Table 1 of Part 4, Division 5 of the town Plan states:-

“Creating lots by subdividing another lot by a Standard Format Plan (whether or not having a Community Management Statement) is Inconsistent Other Development.”

Therefore it is considered that the subject application is in conflict the Redland Planning Scheme and cannot be supported, as it would generally jeopardise the Structure Plan currently being developed for the area.  This is the case, as the rezoning of the land to Park Residential would subsequently allow the site to be…