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Reibel Farms Pty Ltd v Whitsunday Regional Council

Reibel Farms Pty Ltd v Whitsunday Regional Council

Case [2016] QPEC 44 8 September 2016

Compliance with Zoning Codes

Judicial Review

Planning & Development Law

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PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44

PARTIES:

REIBEL FARMS PTY LTD
ACN 011 072 763
(Appellant)

and

WHITSUNDAY REGIONAL COUNCIL
(Respondent)

FILE NO/S:

D239 of 2013

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Townsville

DELIVERED ON:

08 September 2016

DELIVERED AT:

Townsville

HEARING DATES:

17 to 20 November 2014; Written submissions 03 December 2014; Listed for of Delivery of Judgment 19 June 2015; Request to re-open evidence 19 June 2015; Application to re-open evidence 04 September 2015; Review and directions hearing 16 November 2015; Final submissions 22 January 2016.

JUDGE:

Durward SC DCJ

ORDERS:

1. Appeal dismissed.

2. The Decision of the Whitsunday Regional Council refusing the Development Application is confirmed.

CATCHWORDS:

ENVIRONMENT & PLANNING – DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE (PRELIMINARY APPROVAL) – CONFLICT WITH PLANNING SCHEME – FLOODING – ECONOMIC NEED – CONFLICT - SUFFICIENT GROUNDS – development application for material change of use (preliminary approval overriding planning scheme) – proposed residential development - property partly in rural zone and partly in open space zone in planning scheme – where proposed development adjacent to a watercourse that has a flood mitigation purpose – whether residential development in hazard-prone area suitable – whether proposal creates risks of flooding of existing and /or proposed properties – where proposal contingent on upgrade by Council of existing adjacent road and watercourse culvert – whether proposed development complies with Residential Zone Code and Filling & Excavation Code - whether economic need to approve development – where planning scheme provides other future capacity for residential development - whether conflict with planning scheme or other relevant instrument, planning scheme DEOs or State Planning Policy 1/03 – whether compromise of DEO’s - whether sufficient grounds to warrant approval despite conflict with planning scheme or other relevant planning instrument.

ENVIRONMENT & PLANNING – HEARING – JUDGMENT RESERVED - RE-OPENING – FRESH EVIDENCE – where respondent post-hearing and prior to delivery of judgment resolved to upgrade adjacent road and watercourse culvert – where appellant’s application to re-open evidence granted – where further evidence and further submissions dealt with on the papers – whether upgrade satisfied the Q100 flood level and associated flood risk issue.

LEGISLATION:

Sections 3.1.1.6, 3.1.5 (1), 3.5.5A, 3.5.14, 4.1.52, 4.1.54 and Schedule 10 Integrated Planning Act 1997; Sections 241 (1), 242 (1) (b), 802 and 819 Sustainable Planning Act 2009.

PLANNING SCHEMES:

Bowen Shire Council Planning Scheme 2006; Whitsunday Regional Council Planning Scheme (Draft).

CASES:

Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126; All-A-Wah Car Park v Noosa Shire Council (1989) QPLR 155; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350; Woolworths Ltd v Maryborough City Council & Anor [2005] QPEC 262; Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250; Shardlow v Moreton Bay Regional Council [2012] QPEC 082; (2013) QPELR 246; Stockland…

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 Reibel Farms Pty Ltd v Whitsunday Regional Council

Details

AGLC: Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44
Case: [2016] QPEC 44
Decision Date: 08 September 2016

CaseChat Overview and Summary

In the matter of Reibel Farms Pty Ltd versus Whitsunday Regional Council, the court was presented with a dispute concerning a development application for a material change of use (preliminary approval). The applicant sought to develop a residential property situated partly in a rural zone and partly in an open space zone in the planning scheme. The property was adjacent to a watercourse that serves a flood mitigation purpose. The primary legal issues revolved around whether the proposed residential development was suitable in a hazard-prone area and whether it would create risks of flooding to existing and proposed properties. Additionally, the court had to consider whether the proposal complied with the Residential Zone Code and Filling & Excavation Code. A key point of contention was the economic necessity for approving the development, given that the planning scheme allows for other future residential development capacity. The court also needed to determine whether the proposal conflicted with the planning scheme, planning scheme Development Evaluation Objectives (DEOs), or the State Planning Policy 1/03, and if these DEOs were compromised. Ultimately, the court had to decide if there were sufficient grounds to approve the development despite these conflicts.

The Whitsunday Regional Council had refused the development application, and the applicant appealed this decision. The court's reasoning involved a thorough analysis of the potential flood risks posed by the proposed development, particularly in light of the adjacent watercourse's flood mitigation role. The court also considered whether the Council's decision to upgrade the adjacent road and watercourse culvert would mitigate the flood risk issue. The court found that the proposal did not sufficiently address the flood risk concerns and did not comply with the relevant planning codes. Furthermore, the court concluded that the economic need for the development was not compelling, given the availability of other residential development capacity within the planning scheme. The court found that the proposal conflicted with the planning scheme, the DEOs, and the State Planning Policy 1/03. After evaluating all the evidence and submissions, the court determined that there were not sufficient grounds to approve the development despite these conflicts.

The outcome of the appeal was that it was dismissed, and the decision of the Whitsunday Regional Council to refuse the development application was confirmed. The court found that the proposal did not adequately address the flood risk concerns and did not meet the necessary planning compliance requirements. Additionally, the court did not find sufficient economic need to warrant approval of the development. Therefore, the appeal was dismissed, and the decision of the Whitsunday Regional Council was upheld.

Orders

Orders of the court

1. Appeal dismissed.

2. The Decision of the Whitsunday Regional Council refusing the Development Application is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44

Cases Citing This Decision

No citing cases yet.

Cases Cited

Lewis v Townsville City Council [2012] QCA 99
Citation 1

…lfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267; Lewis v Townsville City Council & Ors [2012] QCA 99; Australand Holdings v Gold Coast City Council [2007] QPEC 29; Zanow v Ipswich City Council [2010] QPEC 050; [2010] QPELR 721 ; William McEwens Pty Ltd v Brisbane City Council (1982) 2 APA 165; G…
Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333
Citation 2

…Management Ltd v Pine River Shire Council & Anor . (2004) QPELR 337; Metroplex v Brisbane City Council [2010] QCA 333; [2011] QPELR 181 ; Weightman v Gold Coast City Council (2003) 2 Qd.R. 441; Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R 273; SDW Projects Pty Ltd v Gold Coast City Council & Anor [200…
Handley v Brisbane City Council; Castlemaine Perkins Pty Ltd v Brisbane City Council [2010] QPEC 120
Citation 3

…Regional Council & Ors [2013] QPEC 079 ; Koerner & Ors v Maroochy Shire Council & Ors [2004] QPELR 211; Handley v Brisbane City Council & Anor (2005) QPELR 80; Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267; Lewis v Townsville City Council & Ors [2012] QCA 99; Australand Holdings v Gold Coast City Council…
ALDI Stores (A Limited Partnership) v Redland City Council [2009] QPEC 27
Citation 4

…; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; Aldi Stores v Redland City Council [2009] QPEC 27; Westfield Management Ltd v Pine River Shire Council & Anor . (2004) QPELR 337; Metroplex v Brisbane City Council [2010] QCA 333; [2011] QPELR 181 ; Weightman v Gold Coast City Council (2003) 2 Q…
Australian Retirement Homes Ltd v Pine Rivers Shire Council [2007] QPEC 85
Citation 5 (Para 1)

…jects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24 at [46] to [48]; and Australian Retirement Homes Ltd v Pine River Shire Council & Anor [2007] QPEC 85 at [19], [20] and [28].…
Australand Holdings Ltd v Gold Coast City Council [2007] QPEC 29
Citation 6 (Para 1)

…ation involving a request to vary the effect of a local planning instrument on the land in question, in Australand Holdings v Gold Coast City Council [2007] QPEC 29 at [29] and [30]. His Honour wrote at [30]:…
Central Equity Limited v Gold Coast City Council [2007] QPEC 6
Citation 7

…Pty Ltd v Brisbane City Council (1982) 2 APA 165; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; Aldi Stores v Redland City Council [2009] QPEC 27; Westfield Management Ltd v Pine River Shire Council & Anor . (2004) QPELR 337; Metroplex v Brisbane City Council [2010] QCA 333; [201…
Woolworths Ltd v Maryborough City Council [2004] QPEC 70
Citation 8 (Para 1)

…In Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R 273, the Court of Appeal analysed the issue of conflict between the decision and the planning scheme and the test applied in Weightman :…
Weightman v Gold Coast City Council (No 2) [2002] QPEC 67
Citation 9 (Para 1)

…In Weightman v Gold Coast City Council (2003) 2 Qd.R. 441, the Court of Appeal held that the requirement imposed by s 4.4(5A) of the repealed legislation was mandatory and not merely directory. Atkinson J applied the following test:…
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
Citation 10

…rk v Noosa Shire Council (1989) QPLR 155; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447 ; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350; Woolworths Ltd v Maryborough City Council & Anor [2005] QPEC 262; Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250; Shardlow v Moreton Bay Regional Council [2012] QPEC 082…
Grosser v Council of the City of Gold Coast [2000] QCA 502
Citation 11

…l [2010] QPEC 050; [2010] QPELR 721 ; William McEwens Pty Ltd v Brisbane City Council (1982) 2 APA 165; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; Aldi Stores v Redland City Council [2009] QPEC 27; Westfield Management Ltd v Pine River Shire Council & Anor . (…
Smith v New South Wales Bar Association [1992] HCA 36
Citation 12 (Para 1)

…e. It was potentially relevant to a primary issue in the hearing. Judgment had not been delivered: see Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256. The lawyers for the Respondent, understandably, did not oppose the Application.…

Legislation Cited

Sustainable Planning Act 2009 (Qld)
1 mention (from Para 1)

CITATION:	Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44
PARTIES:	REIBEL FARMS PTY LTD ACN 011 072 763 (Appellant) and WHITSUNDAY REGIONAL COUNCIL (Respondent)
FILE NO/S:	D239 of 2013
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Townsville
DELIVERED ON:	08 September 2016
DELIVERED AT:	Townsville
HEARING DATES:	17 to 20 November 2014; Written submissions 03 December 2014; Listed for of Delivery of Judgment 19 June 2015; Request to re-open evidence 19 June 2015; Application to re-open evidence 04 September 2015; Review and directions hearing 16 November 2015; Final submissions 22 January 2016.
JUDGE:	Durward SC DCJ
ORDERS:	1. Appeal dismissed. 2. The Decision of the Whitsunday Regional Council refusing the Development Application is confirmed.
CATCHWORDS:	ENVIRONMENT & PLANNING – DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE (PRELIMINARY APPROVAL) – CONFLICT WITH PLANNING SCHEME – FLOODING – ECONOMIC NEED – CONFLICT - SUFFICIENT GROUNDS – development application for material change of use (preliminary approval overriding planning scheme) – proposed residential development - property partly in rural zone and partly in open space zone in planning scheme – where proposed development adjacent to a watercourse that has a flood mitigation purpose – whether residential development in hazard-prone area suitable – whether proposal creates risks of flooding of existing and /or proposed properties – where proposal contingent on upgrade by Council of existing adjacent road and watercourse culvert – whether proposed development complies with Residential Zone Code and Filling & Excavation Code - whether economic need to approve development – where planning scheme provides other future capacity for residential development - whether conflict with planning scheme or other relevant instrument, planning scheme DEOs or State Planning Policy 1/03 – whether compromise of DEO’s - whether sufficient grounds to warrant approval despite conflict with planning scheme or other relevant planning instrument. ENVIRONMENT & PLANNING – HEARING – JUDGMENT RESERVED - RE-OPENING – FRESH EVIDENCE – where respondent post-hearing and prior to delivery of judgment resolved to upgrade adjacent road and watercourse culvert – where appellant’s application to re-open evidence granted – where further evidence and further submissions dealt with on the papers – whether upgrade satisfied the Q100 flood level and associated flood risk issue.
LEGISLATION:	Sections 3.1.1.6, 3.1.5 (1), 3.5.5A, 3.5.14, 4.1.52, 4.1.54 and Schedule 10 Integrated Planning Act 1997; Sections 241 (1), 242 (1) (b), 802 and 819 Sustainable Planning Act 2009.
PLANNING SCHEMES:	Bowen Shire Council Planning Scheme 2006; Whitsunday Regional Council Planning Scheme (Draft).
CASES:	Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126; All-A-Wah Car Park v Noosa Shire Council (1989) QPLR 155; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350; Woolworths Ltd v Maryborough City Council & Anor [2005] QPEC 262; Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250; Shardlow v Moreton Bay Regional Council [2012] QPEC 082; (2013) QPELR 246; Stockland…