Redland Shire Council v Loricliffe Pty Ltd - [2007] QPEC 101

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Redland Shire Council v Loricliffe Pty Ltd [2007] QPEC 101

PARTIES:

REDLAND SHIRE COUNCIL

Appellant

v

LORICLIFFE PTY LTD

Respondent

FILE NO/S:

BD 446 of 2007

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 November, 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 October, 2007

JUDGE:

Griffin SC

COUNSEL:

Mr P Smith for the appellant

Mr A Skoien for the respondent

The Redland Shire Council (the appellant) appeals pursuant to provisions of s 4.1.37 of the Integrated Planning Act 1997 against a decision of the Building and Development Tribunal (the Tribunal) setting aside the decision of the appellant contained in its Enforcement Notice dated 16 November 2006 requiring a pool fence enclosing a pool on the respondent’s premises to comply with requirements of the Building Act 1975 applicable to new pool fences.

The premises are situated at 30 Bollard Court, Cleveland, described at Lot 46 on C.6124 in the Redland Shire Local Government area. The property has a north and western common boundary to Flinders Canal at Raby Bay with a 70 metre water boundary line and canal access. Improvements on the land include a residential dwelling, an in-ground pool, two pontoons, boundary fences and driveway security gate. It is common ground there is no pool fence isolating the pool from the dwelling or from Flinders Canal.

The facts in this appeal are relatively undisputed. The questions arises as to the basis upon which the decision by the Tribunal was made and whether there is demonstrated (the onus being upon the appellant) any error of law in the way in which the Tribunal proceeded. In 1985 the subject pool was approved pursuant to the appellant’s Schedule 42 Pool Fencing Bylaw.

In or about August 1986 a final inspection of the pool fencing was carried out and was assessed as complying with those requirements. In 1993 the respondent acquired the premises and is now the registered owner and was so at all times relevant to this appeal.

On 16 September 2004 the appellant received a complaint of a non-complying pool fence on the subject premises and on 14 October 2004 an inspection was carried out on the premises.

On 14 October 2004 photographs were taken of the pool and its surrounding area and these were forwarded, together with a covering letter dated 20 December 2006 to the Tribunal, the day after the hearing was completed and apparently upon request of Mr Rooney, the Tribunal Member. Much reliance is placed upon what is evidenced by those photographs in the appellant’s argument and I will return to this issue below.

On 1 November 2006 an inspection of the pool fencing revealed that work had been carried out, which work apparently complied with 1991 provisions of the Local Government Act 1936 but not with the requirements that existed by November 2006 in relation to the security in and about in-ground pools. There is no precise evidence as to when this work was carried out.…

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 Redland Shire Council v Loricliffe Pty Ltd

Details

AGLC: Redland Shire Council v Loricliffe Pty Ltd [2007] QPEC 101
Case: [2007] QPEC 101
Decision Date: 16 November 2007

CaseChat Overview and Summary

The Redland Shire Council appeals against a decision of the Building and Development Tribunal which set aside the Council's Enforcement Notice requiring Loricliffe Pty Ltd to comply with pool fence requirements. The issue for determination is whether the Tribunal erred in its assessment of whether the pool fencing complied with pre-October 2003 legislation. The appellant argues that the Tribunal asked itself the wrong question by assessing compliance as at the date of hearing rather than 1 October 2003. The Tribunal's decision makes clear reference to the 1991 legislation and found that the pool fencing complied with that legislation. The Court finds that there was no error in law in the Tribunal's decision and dismisses the appeal. The Court found that the Tribunal had sufficient evidence to conclude that the pool complied with the pre-October 2003 legislation. The photographs provided by the appellant were found to lack weight and value and were not relied upon by the Tribunal. The Court rejected the appellant's argument that the Tribunal assessed compliance as at the date of hearing rather than 1 October 2003. The Court found that the Tribunal's decision was based on the state of the pool as it related to the legislative requirements pre-October 2003. The appeal is dismissed with the Court finding no error in law in the Tribunal's decision.

Orders