Parsons v Redland City Council - [2011] QPEC 62

PLANNING AND ENVIRONMENT OF QUEENSLAND

CITATION:

Parsons v Redland City Council [2011] QPEC 62

PARTIES:

Malcolm Lionel Parsons
(Appellant)

V

Redland City Council
(Respondent)

FILE NO/S:

3391 of 2009

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

5 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 – 25 February 2011 at Brisbane and

8 April 2011 at Southport

JUDGE:

Robin QC DCJ

ORDER:

1. Appeal allowed, conditions varied

CATCHWORDS:

Integrated Planning Act 1997 s 3.5.30

Conditions appeal – Island site close to Moreton Bay affected by storm surge and Q-100 flood lines – 90% of site (outside the development application for a material change of use for a one bedroom house) zoned Conservation – Council sought a drainage easement over that 90% - that extent of easement considered not reasonable – likewise other conditions restricting development that might be applied for in future.

COUNSEL:

Mr M. Parsons representing himself as the appellant with the assistance of Mr L. Hackett as McKenzie friend

Mr S. M. Ure for the respondent

SOLICITORS:

Appellant is self-represented

HWL Ebsworth for the respondent

[1] This is an appeal against certain of the conditions which the respondent Council imposed in a Development Permit for Material Change of Use (dwelling house and carport) in respect of the appellant’s land at 65 Coondooroopa Drive, Macleay Island. The original decision notice of 14 December 2006 (based on a development application lodged on about 24 November 2006) was re-issued on or about 24 June 2009. According to the Notice of Appeal, on or about 7 July 2009, the appellant suspended his appeal period in accordance with s 3.5.18 of the Integrated Planning Act 1997 and four weeks later made representations to the Council in relation to the conditions imposed by the decision notice, accompanied by the requisite fee of $597; no notice of any decision by the Council under s 3.5.17 having been received, on 24 November 2009, the request was withdrawn. This appeal, which is brought under s 4.1.27(1)(b) and (d) was filed by Mr Parsons’ solicitors the next day. He has since become self represented, and Mr Hackett (who has a background and qualifications in science which have earned him membership of at least one professional engineering body) was his advocate in the appeal hearing. At the beginning of the hearing, Mr Parsons was making submissions on his own behalf. It is probably appropriate to characterise Mr Hackett as a McKenzie friend who gradually became a speaking one, being the more confident advocate.

[2] The precise area of Mr Parsons’ land is immaterial. The Notice of Appeal identifies Lot 269 on RP31213 of “approximately 5020.64m²”. Mr Parsons’ holdings include Lot 268 as well as Lot 269. According to a Gutteridge Haskins & Davey Pty Ltd report of March 2002, Lot 269 is approximately 3790 square metres, Lot 268 is approximately 1635 square metres, fronting the shoreline of the island. Both lots significantly exceed the 500 square metres average sized…

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.

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Details

Case: [2011] QPEC 62
Decision Date: 5 May 2011

CaseChat Overview and Summary

Parsons and Redland City Council were involved in a dispute concerning an island site close to Moreton Bay, which is susceptible to storm surges and is within the Q-100 flood lines. The site is predominantly zoned for Conservation, with only a small portion available for development. The developer, Parsons, had applied for a material change of use to build a single-bedroom house. The Council proposed various conditions, including a drainage easement over the majority of the site and restrictions on any future development applications. Parsons challenged the reasonableness of these conditions, arguing they were excessive and not necessary for the protection of the site.

The court was tasked with determining whether the proposed conditions, particularly the drainage easement and restrictions on future development, were reasonable and justified. The primary legal issue was whether the conditions imposed by the Council were proportionate and necessary to achieve the legitimate objectives of flood mitigation and conservation, and whether they unduly prejudiced the developer’s right to develop the site.

The court found that the conditions imposed by the Council were not reasonable. It determined that the proposed drainage easement over the majority of the site was excessive and not necessary to achieve the objectives of flood mitigation. Similarly, the restrictions on any future development applications were considered too broad and not justified by the conservation objectives. The court concluded that the conditions imposed were disproportionate and unduly prejudiced the developer’s ability to develop the site. Consequently, the appeal was allowed, and the conditions were varied to reflect the court's findings.

The court's final order was that the appeal was allowed, and the conditions imposed by the Council were varied to reflect the court's determination that they were not reasonable. The specific terms of the varied conditions were not detailed in the summary provided.

Orders

Orders of the court

1. Appeal allowed, conditions varied

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:	Parsons v Redland City Council [2011] QPEC 62
PARTIES:	Malcolm Lionel Parsons (Appellant) V Redland City Council (Respondent)
FILE NO/S:	3391 of 2009
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	5 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	23 – 25 February 2011 at Brisbane and 8 April 2011 at Southport
JUDGE:	Robin QC DCJ
ORDER:	1. Appeal allowed, conditions varied
CATCHWORDS:	Integrated Planning Act 1997 s 3.5.30 Conditions appeal – Island site close to Moreton Bay affected by storm surge and Q-100 flood lines – 90% of site (outside the development application for a material change of use for a one bedroom house) zoned Conservation – Council sought a drainage easement over that 90% - that extent of easement considered not reasonable – likewise other conditions restricting development that might be applied for in future.
COUNSEL:	Mr M. Parsons representing himself as the appellant with the assistance of Mr L. Hackett as McKenzie friend Mr S. M. Ure for the respondent
SOLICITORS:	Appellant is self-represented HWL Ebsworth for the respondent