Mergler v Redland City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Mergler v Redland City Council [2011] QPEC 88

PARTIES:

STEVEN MERGLER
(Appellant)

V

REDLAND CITY COUNCIL
(Respondent)

FILE NO/S:

3296 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

30 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9 June 2011 (Following site inspection 7 June 2011)

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed subject to variation of easement terms

CATCHWORDS:

Sustainable Planning Act 2009 s 345

Integrated Planning Act 1997 s 3.5.30, s 4.1.27(1)(b), s 4.1.47, s 4.1.50

Appeal by developer against condition of a development approval requiring dedication of an easement for drainage purposes – easement shown in development application document – whether it constituted part of the proposal rather than an appealable condition – whether easement condition unreasonable or irrelevant because need for it allegedly arose from roadworks previously done by Council – or because mapping and the surveys it was based on may be inaccurate – or because it may not be needed forever – or because it precluded self-help by owner of site to place fill which would keep polluted surface run-off off the site – approved house already substantially constructed notwithstanding the appeal’s being undetermined.

COUNSEL:

Mr M. J. Doolan (town planner) represented the appellant

Mr S. M. Ure for the respondent

SOLICITORS:

Mr M. J. Doolan (town planner) agent for the appellant

Redland Council Legal Services for the respondent

1. This is an appeal under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) filed on 18 November 2009 seeking removal of the following condition from a development approval granted by the respondent Council on the appellant’s application for a material change of use for the construction of a dwelling house at 106 Beelong Street, Macleay Island, a 1,143 m² parcel on the inland side of Beelong Street:

“7.0      Drainage Easement

7.1A drainage easement is required over the subject allotment to provide for stormwater drainage.  The easement shall be as indicated on Council’s Drawing Number A2-B097-2 attached.  Written agreement from the owner of the allotment must be received prior to the commencement of building works, to allow Council to survey and register the easement at the Titles Office.  Please be advised that all costs relating to the easement will be borne by Council.  (Please find attached an Easement Consent Form).

7.2There must be no man made obstruction to overland flow placed in the easement, no installation involving concrete, brick or other permanent materials or any earthworks without the express written permission of Council, with the exception of up to three (3) 100mmx100mm RHS columns to provide support for the front deck as shown in the SE Elevation Plan in approved plan 09/364 dated 05/10/2009.”

1. Beelong Street is an extension along the northern tip and then proceeding along the eastern side of the island as a continuation by a 90º curve to the south of Coondooroopa Drive which tracks the western side of the island in this area.  The court…