Reservilt Pty Ltd v Maroochy Shire Council (No. 2)

Case [2003] QPEC 41

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Reservilt Pty Ltd v Maroochy Shire Council (No. 2) [2003] QPEC 041

PARTIES:

RESERVILT PTY LTD  (Appellant)

-v-

MAROOCHY SHIRE COUNCIL                 (Respondent)

FILE NO/S:

17/2001

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Maroochydore

DELIVERED ON:

20 August 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

9 July 2003

JUDGE:

Judge J.M. Robertson

ORDER:

Application allowed

CATCHWORDS:

LOCAL GOVERNMENT – Relevance and reasonableness of conditions. Whether conditions are relevant to and not an unreasonable imposition on development permit. Permit to erect boarding kennels. Whether approval of construction on adjoining property since application “lawful”; environmentally sensitive development; consideration of relevant Codes and degree of specificity and detail required.

ENVIRONMENT AND PLANNING – role of Court and assessment manager and concurrence manager.

PLANNING AND ENVIRONMENT COURT – EVIDENCE – role of experts.

Reservilt v Maroochy Shire Council & Anor[2002]QPEC 010
Reservilt v Maroochy Shire Council & Anor [2002] QCA 367

Cases Cited:
Attorney-General v Breckler (1999) 197 CLR 83
Hymix Industries Pty Ltd & Anor v Albertson Investments Pty Ltd [2002] QPELR 116
Proctor v Brisbane City Council [1994] QPELR 309
Wise v Maroochy Shire Council [1999] 2 Qd. R. 566

Statutes Cited:

Integrated Planning Act 1997, ss 3.5.30. 4.1.23 (d) (e), s 4.1.52 (1)
Environmental Protection Act 1994, s44
Local Government (Planning and Environment) Act 1990, s 6.1 (1) (c) (repealed)

COUNSEL:

S.J. Keim (for the Appellant)

A.N.S Skoien (for the Respondent)

SOLICITORS:

Lestar Manning (for the Appellant)

Maroochy Shire Council (for the Respondent)

  1. The history of the appellant’s application for a development permit for boarding kennels at 64 Murdering Creek Road, Perigian, is set out in my reasons for judgment delivered 12 March 2002 (Reservilt Pty Ltd v Maroochy Shire Council &  Anor [2002] QPEC 010). After a successful appeal to the Court of Appeal (Reservilt Pty Ltd v Maroochy Shire Council & Anor [2002] QCA 367) the appeal was returned to this Court to proceed according to law. On the 13 February 2003, after receiving submissions from both parties, I allowed the appeal subject to conditions. Directions were given in relation to the filing of agreed and disputed conditions, and the exchange of expert reports and proofs. On the 13 March 2003, the respondent’s solicitor delivered to the appellant’s solicitors a set of draft assessment manager conditions together with the Council’s concurrence agency conditions. These draft conditions (exhibit 1 in these proceedings – “the original conditions”) then formed the basis for discussion between the experts in a number of conclaves during March and April 2003. Arising out of these meetings, the experts (Mr McNeilage on behalf of the appellant and Mr Chessels on behalf of the respondent) reached substantial agreement as to an appropriate set of conditions. These conditions (“the experts’ conditions”) are Attachment A to Mr McNeilage’s report dated 14 June 2003 which is exhibit 3 in these proceedings. On the 12 June 2003, the respondent filed a further expanded set of assessment manager and concurrence agency conditions dated…

Details
AGLC
Reservilt Pty Ltd v Maroochy Shire Council (No. 2) [2003] QPEC 41
Case
[2003] QPEC 41
Decision Date

CaseChat Overview and Summary

The case of Reservilt Pty Ltd v Maroochy Shire Council (No. 2) involved a dispute concerning the relevance and reasonableness of conditions imposed on a development permit for the erection of boarding kennels. The appellant, Reservilt Pty Ltd, challenged the conditions set by the Maroochy Shire Council, arguing they were unreasonable and not relevant to the development permit. The matter was brought before the Planning and Environment Court.

The legal issues before the Court included whether the conditions imposed by the Environment Protection Agency were relevant and not an unreasonable imposition on the development permit. Additionally, the Court had to consider whether the approval of construction on an adjoining property, which occurred after the appellant's application, was lawful, and the degree of specificity and detail required in the conditions. The Court also had to weigh in on the role of experts in providing evidence and the role of the assessment manager and concurrence manager in the process.

In its decision, the Court found that the conditions required by the Environment Protection Agency, particularly those relating to unexploded ordinance, were reasonable and relevant. Consequently, the appeal was allowed. The Court adjourned the further hearing for 21 days to allow the parties to draft appropriate conditions. The Court also noted that while some conditions should be left to the Environmental Management Plan (EMP), the specificity and detail of the conditions imposed by the Council were appropriate given the history of disputes between the parties. The Court saw merit in transferring the approved conditions to the EMP, subject to agreement between the parties. Finally, the Court rejected the appellant's application for costs, finding it misconstrued the effect of the previous order and repeated the appellant's erroneous approach to the experts' conditions.

The Court's orders included allowing the application and dismissing the appellant's application for costs.

Orders

Orders of the court

Application allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion: It is uncontentious that the conditions required by the Environment Protection Agency relating to unexploded ordinance (see annexure “A” to the statement of Mr Walters) are reasonable and relevant. The appeal is allowed accordingly. I will adjourn the further hearing of the matter for 21 days to enable the parties to draft appropriate conditions in terms of these reasons. Finally, I should refer to a frequent refrain from Mr McNeilage that many of these conditions should be (a) in general terms, and (b) left to the EMP. I agree with Mr Skoien that given the history of the matter with accusation and counter accusation and disputes over what was said and agreed, the utility of such an approach is unattractive. However, conditions imposed by the Court can only be varied by the Court, whereas conditions in an EMP can be varied more simply and inexpensively by agreement. The Council’s position appears to be that provided the EMP contains conditions of the specificity and detail set out in these reasons; such a course may indeed be appropriate. Mr Chessels said as much in answer to some questions from Mr Skoien on page 93 of the transcript. Given the matters set out above, the Court would see merit in an agreement between the parties generally to the effect that appropriate conditions now approved by the Court could instead be transferred into the EMP. The only remaining issue is the appellant’s application for costs, which was adjourned on 26 May 2003 for determination. For the reasons expressed above, I think the application misconstrued the effect of the order made on 13 February 2003, and repeats the appellant’s erroneous approach to the experts’ conditions. I can appreciate the frustrations of the appellant and Mr Manning, But I think the appellant has contributed to the difficulties referred to by Mr Manning in his submissions on 26 May 2003, as a consequence of the attitude of Mr McNeilage to which I have already referred. There is no basis for an order for costs under section 4.1.23 of the IPA and the application is refused.

Ratio Decidendi

Legal Principle Established

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