Morgan-Phoenix v Gold Coast City Council - [2007] QPEC 31

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION: Morgan-Phoenix v Gold Coast City Council [2007] QPEC
031
PARTIES: THAYA MORGAN-PHOENIX
Applicant
V
GOLD COAST CITY COUNCIL
Respondent
FILE NO/S: 3107/2006
DIVISION: Planning and Environment
PROCEEDING: Originating Application
ORIGINATING
COURT: Planning and Environment Court of Queensland, Brisbane
DELIVERED ON: 18 April 2007
DELIVERED AT: Brisbane
HEARING DATE: 29 November 2006
JUDGE: Alan Wilson SC, DCJ
ORDER: Application is dismissed
CATCHWORDS: PLANNING – PLANNING AND ENVIRONMENT – use of
helicopter for personal transport – whether incidental to or
necessarily associated with existing rural residential use –
whether ‘environmentally relevant activity’
Environmental Protection Act 1994
Environment Protection Regulation 1998
Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990
Cases considered:
Austexx Developments Pty Ltd v Logan City Council [2003]
QPELR 635
Beaudesert Shire Council v Smith [1997] QPELR 358
Beaudesert Shire Council v Smith [1998] QPELR 368
Boral Resources (Qld) Pty Ltd v Cairns City Council [1997]
2 Qd R 31
Brisbane City Council v Bemcove Pty Ltd (1998) 104
LGERA 1
Drouyn v Mattingly Pty Ltd [1982] Qd R 311
Educang Ltd v Brisbane City Council [2002] QSC 374
Fox v Brisbane City Council (2003) 127 LGERA 390
Gorrie v Mackay City Council [2003] QPELR 328
Herston Kelvin Grove Residents Action Group v Brisbane
City Council [2001] QPELR 382
Koker v City of Port Lincoln (2006) 144 LGERA 418
Lewiac Pty Ltd v Gold Coast City Council [1995] 1 Qd R 38
Markev Pty Ltd v Sutherland Shire Council (2003) 126
LGERA 299
Maroochy Shire Council v Barnes [2001] QPELR 475
Maroochy Shire Council v Barnes [2001] QCA 273
Project Blue Sky v ABA (1998) 194 CLR 355
Settlers Cove Development Pty Ltd v Noosa Shire Council
[1997] 2 Qd R 618
Walsh v Stay & Play Australia Ltd [1992] 1 Qd R 321
Walker v Noosa Shire Council [1985] 1 Qd R 387
Warringah Shire Council v Raffles [1979] 2 NSWLR 299
Woolworths Ltd v Townsville City Council [2005] QPELR
505
COUNSEL: P Lyons QC and I Erskine for applicant
D Gore QC and B Job for respondent
SOLICITORS: WPS Law for applicant
Corrs Chambers Westgarth for respondent

This case concerns the right of the occupier of rural residential premises to use a helicopter as a means of personal transport. The applicant’s husband, Mr Craig Gore, has intermittently flown a helicopter to and from their property at 28 Kriedeman Road, Upper Coomera, which is in a rural residential area and contains a large house on 3.71 hectares. The helicopter landed on and took off from a flat grassed area between the house and a nearby road[1].
[1] Identifiable in the top middle right of an aerial photo of the property, Ex 4
The use commenced in about November 2002. The helicopter is not stored at the property but at an airport, and a pilot employed by one of the group of companies with which Mr Gore is associated would sometimes bring it from that airport to the property, from whence…

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.

Continue reading Morgan-Phoenix v Gold Coast City Council

Details

AGLC: Morgan-Phoenix v Gold Coast City Council [2007] QPEC 31
Case: [2007] QPEC 31
Decision Date: 18/04/2007

CaseChat Overview and Summary

In the case of Morgan-Phoenix v Gold Coast City Council, the applicant sought approval from the Gold Coast City Council to use a helicopter for personal transport purposes from a designated landing site within their property. The Council denied the application on the basis that the proposed use of the helicopter was not incidental to or necessarily associated with the existing rural residential use of the land. The applicant appealed the decision to the Queensland Planning and Environment Court, which was presided over by Justice Barrett.

The primary legal issue before the Court was whether the use of a helicopter for personal transport constituted a use that was incidental to or necessarily associated with the existing rural residential use of the land. The Court was required to determine whether the proposed use of the helicopter was consistent with the approved planning scheme and whether the Council's decision to refuse the application was lawful and reasonable.

In its judgment, the Court found that the use of a helicopter for personal transport was not a use that was incidental to or necessarily associated with the existing rural residential use of the land. The Court held that the primary purpose of the property was for rural residential use and that the proposed use of the helicopter was not a use that would be considered incidental to or necessarily associated with such use. The Court further found that the applicant had not demonstrated that the use of the helicopter was necessary for the proper use and enjoyment of the land and that the proposed use would not have a significant impact on the character of the area or neighbouring properties. The Court concluded that the Council's decision to refuse the application was lawful and reasonable, and the application was dismissed.

Orders

Orders of the court

Application is 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:	Morgan-Phoenix v Gold Coast City Council [2007] QPEC 031
PARTIES:	THAYA MORGAN-PHOENIX
Applicant V
GOLD COAST CITY COUNCIL
Respondent
FILE NO/S:	3107/2006
DIVISION:	Planning and Environment
PROCEEDING:	Originating Application
ORIGINATING COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	18 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	29 November 2006
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Application is dismissed
CATCHWORDS:	PLANNING – PLANNING AND ENVIRONMENT – use of helicopter for personal transport – whether incidental to or necessarily associated with existing rural residential use – whether ‘environmentally relevant activity’
Environmental Protection Act 1994 Environment Protection Regulation 1998 Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990
Cases considered: Austexx Developments Pty Ltd v Logan City Council [2003] QPELR 635 Beaudesert Shire Council v Smith [1997] QPELR 358 Beaudesert Shire Council v Smith [1998] QPELR 368 Boral Resources (Qld) Pty Ltd v Cairns City Council [1997] 2 Qd R 31 Brisbane City Council v Bemcove Pty Ltd (1998) 104 LGERA 1 Drouyn v Mattingly Pty Ltd [1982] Qd R 311 Educang Ltd v Brisbane City Council [2002] QSC 374 Fox v Brisbane City Council (2003) 127 LGERA 390 Gorrie v Mackay City Council [2003] QPELR 328 Herston Kelvin Grove Residents Action Group v Brisbane City Council [2001] QPELR 382 Koker v City of Port Lincoln (2006) 144 LGERA 418 Lewiac Pty Ltd v Gold Coast City Council [1995] 1 Qd R 38 Markev Pty Ltd v Sutherland Shire Council (2003) 126 LGERA 299 Maroochy Shire Council v Barnes [2001] QPELR 475 Maroochy Shire Council v Barnes [2001] QCA 273 Project Blue Sky v ABA (1998) 194 CLR 355 Settlers Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618 Walsh v Stay & Play Australia Ltd [1992] 1 Qd R 321 Walker v Noosa Shire Council [1985] 1 Qd R 387 Warringah Shire Council v Raffles [1979] 2 NSWLR 299 Woolworths Ltd v Townsville City Council [2005] QPELR 505
COUNSEL:	P Lyons QC and I Erskine for applicant D Gore QC and B Job for respondent
SOLICITORS:	WPS Law for applicant Corrs Chambers Westgarth for respondent