Ridgehaven Retirement Village Pty Ltd v Caloundra City Council - [2004] QPEC 2

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ridgehaven Retirement Village v Caloundra City Council & Ors [2004] QPEC 002

PARTIES:

RIDGEHAVEN RETIREMENT VILLAGE PTY LTD
  (Appellant)
AND

CALOUNDRA CITY COUNCIL
  (Respondent)
AND

STATE OF QUEENSLAND
  (Co-Respondent)
AND

NITA CUNNINGHAM, MINISTER FOR LOCAL GOVERNMENT AND PLANNING
  (Second Co-Respondent)

FILE NO/S:

37 of 2003

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Maroochydore

DELIVERED ON:

13 February 2004

DELIVERED AT:

Maroochydore

HEARING DATE:

2-5 February 2004

JUDGE:

Judge J.M. Robertson

ORDER:

This appeal is allowed to the limited extent of removing from Conditions 2(a) and 36 in Council’s decision notice dated 16 July 2003 the words “and pedestrian/cycle corridors”. Otherwise the appeal confined to Conditions 2(a), 36 and 27 is dismissed. I will permit the parties 7 days to formulate amended conditions in light of these reasons if they see fit.

CATCHWORDS:

LOCAL GOVERNMENT – Relevance and reasonableness of conditions imposed to protect proposed rail corridor through subject land; importance of rail corridor to wider community.

PLANNING AND ENVIRONMENT COURT – powers of Court in relation to issues of designation under Integrated Planning Act for community infrastructure; whether Court can use conditions power to achieve indirectly what it cannot achieve directly.

COMPENSATION – consideration of hardship provisions under s2.6.19 of Integrated Planning Act, timelines of acquisition and issues of fairness.

Cases:

Attorney-General (N.S.W) v Homebush Flour Mills Limited (1937) 56 CLR 390
Brisbane Wharves & Wooldumping Pty Ltd & Ors v Brisbane City Council & Ors [1994] QPLR 1
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 88 ALJR 386
Con Contarino v Sydney City Council (1967) 13 LGRA 332
Deputy Federal Commissioner of Taxation (N.S.W) v W.R. Moran Pty Ltd (1939) 61 CLR 735
Director of Buildings & Lands v Shun Fung Iron Works (1995) 2 AC 11

Edgar Pty Ltd v Brisbane City Council & Ors [2002] QPELR 183

Halkava Pty Ltd v Warringah Shire Council (1970) 19 LGRA 182
Hammercall Pty Ltd v Gold Coast City Council [2002] QPELR 397.
Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524
Huon Investments Pty Ltd v Port Stephens Shire Council (1972) 25 LGRA 287
Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd [2002] QPELR 116
Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527
Kabale Holdings Pty Ltd v Council of the Shire of Albert (1993) QPELR 252
Kebale Holdings Pty Ltd v Chief Executive, Department of Transport [1997-1998] 18 QLCR 166
Laver v Albert Shire Council [1997] QPELR 94
Listville Pty Ltd v Laidley Shire Council (1996) QPELR 378

Lloyd v Robinson (1962) 107 CLR 142

Northern Beaches Developments Pty Ltd v Mackay City Council [1999] QPELR 389

Proctor v Brisbane City Council [1994] QPELR 309

Silverston Pty Ltd v Council of the Shire of Mulgrace & Anor [1993] QPLR 268
Standfield v Gold Coast City Council [1996] QPELR 136
Summerland Plantations Ltd v Brisbane City Council (1994) QPLR 352 and (on appeal) [1995] QCA 474

Wise…

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

AGLC: Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPEC 2
Case: [2004] QPEC 2
Decision Date: 13 February 2004

CaseChat Overview and Summary

Ridgehaven Retirement Village Pty Ltd appealed against the decision of the Caloundra City Council to refuse a material change of use of land at Lot 2, RP 140492, Kalana Road, Currimundi, for a retirement village. The council's decision was based on the land being affected by a proposed rail corridor as identified in the Caloundra Area Mass Transport Corridor Study (CAMCOS). The appellant argued that the conditions imposed by the council to protect the proposed rail corridor were unreasonable and not relevant to the proposed use of the land as a retirement village. The Planning and Environment Court had to decide whether the conditions imposed by the council were relevant and reasonable, and whether the court had the power to impose conditions to protect the rail corridor indirectly.

The court found that the conditions imposed by the council were relevant and reasonable as the rail corridor was important to the wider community and the appellant's development would have a substantial adverse effect on the corridor. The court also found that it had the power to impose conditions to protect the corridor indirectly, even if it could not designate the land for the corridor directly. The court considered the hardship provisions under section 2.6.19 of the Integrated Planning Act and found that the appellant had not demonstrated sufficient hardship to warrant a departure from the conditions. The court also found that the timeline of acquisition was not an issue of fairness in this case.

The appeal was allowed to the limited extent of removing from Conditions 2(a) and 36 in Council’s decision notice dated 16 July 2003 the words “and pedestrian/cycle corridors”. The court dismissed the appeal confined to Conditions 2(a), 36 and 27. The parties were permitted 7 days to formulate amended conditions in light of these reasons if they saw fit.

Orders

Orders of the court

This appeal is allowed to the limited extent of removing from Conditions 2(a) and 36 in Council’s decision notice dated 16 July 2003 the words “and pedestrian/cycle corridors”. Otherwise the appeal confined to Conditions 2(a), 36 and 27 is dismissed. I will permit the parties 7 days to formulate amended conditions in light of these reasons if they see fit.

Background

Background to the litigation

Introduction and Background to Appeal On the 10 July 1998 Meraton Pty Ltd applied to the Caloundra City Council (the Council) for a material change of use of land at Lot 2, RP 140492, Kalana Road, Currimundi (the land), as a retirement village. Meraton Pty Ltd later changed its name to Ridgehaven Retirement Village Pty Ltd, the appellant in these proceedings. On the 24 July 1998, the Council advised Queensland Transport of the application, because the land was affected by one of the options under consideration in CAMCOS. On 4 August 1998, QT wrote to the Council advising that the development application should be refused as one of the identified public transport corridors in CAMCOS overlapped the land. The appellant was not informed of QT’s advice. On the 7 August 1998, the Council forwarded an information request under IDAS to the appellant, which did not refer to CAMCOS. In September 1998, the Stage 2 Corridor option assessment report was released identifying preferred narrowed corridors from a range of options. On 23 November 1998 QT wrote to the appellant (as part of a process of informing all affected landowners) advising that the site had been identified as being potentially affected by one of the identified CAMCOS corridors. Stage 3 of the CAMCOS procedure commenced in December 1998 and included corridor selection. Mr Graeme Krisanski, Consultant Traffic/Transportation Engineer, as principal at the time of Ove Arup Consulting Engineers, was project manager of the Arup team which undertook CAMCOS and he gave evidence in the appeal on behalf of the co-respondent. In January 1999 a submission was made to Ove Arup on behalf of the appellant. On 13 April 1999 the Council’s senior planning officer’s report recommended refusal of the development on grounds generally relating to drainage and the effect on CAMCOS of such a development. The appellant made representations which led to the report being withdrawn from the agenda of Council’s general meeting, to enable the appellant further time to address Council’s concerns. Over the following years, the Council and the appellant continued to negotiate, particularly in relation to drainage issues, and various extensions of the decision period under IPA were negotiated. On 9 September 1999 a draft CAMCOS impact assessment study report was released for public consultation. On 17 September 1999, QT wrote to the appellant advising it that the property remained affected by the proposed final alignment of the corridor. The final CAMCOS impact assessment study was released in February 2001. It identified the land as being affected by the corridor. On 22 March 2001, the Council wrote to Mr Tate, the appellant’s consultant engineer, advising that its officers were unable to recommend approval of the development application because the site was substantially affected by the proposed transport corridor as recommended in the CAMCOS report. On 20 April 2001, QT advised the Council, in response to a Council letter, that it would support the development application subject to conditions which included dedication of land on the site for a proposed railway station, corridor alignment and park and ride facility; and provision of pedestrian and cycle access to the station from surrounding areas.

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:	Ridgehaven Retirement Village v Caloundra City Council & Ors [2004] QPEC 002
PARTIES:	RIDGEHAVEN RETIREMENT VILLAGE PTY LTD (Appellant) AND CALOUNDRA CITY COUNCIL (Respondent) AND STATE OF QUEENSLAND (Co-Respondent) AND NITA CUNNINGHAM, MINISTER FOR LOCAL GOVERNMENT AND PLANNING (Second Co-Respondent)
FILE NO/S:	37 of 2003
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland, Maroochydore
DELIVERED ON:	13 February 2004
DELIVERED AT:	Maroochydore
HEARING DATE:	2-5 February 2004
JUDGE:	Judge J.M. Robertson
ORDER:	This appeal is allowed to the limited extent of removing from Conditions 2(a) and 36 in Council’s decision notice dated 16 July 2003 the words “and pedestrian/cycle corridors”. Otherwise the appeal confined to Conditions 2(a), 36 and 27 is dismissed. I will permit the parties 7 days to formulate amended conditions in light of these reasons if they see fit.
CATCHWORDS:	LOCAL GOVERNMENT – Relevance and reasonableness of conditions imposed to protect proposed rail corridor through subject land; importance of rail corridor to wider community. PLANNING AND ENVIRONMENT COURT – powers of Court in relation to issues of designation under Integrated Planning Act for community infrastructure; whether Court can use conditions power to achieve indirectly what it cannot achieve directly. COMPENSATION – consideration of hardship provisions under s2.6.19 of Integrated Planning Act, timelines of acquisition and issues of fairness. *Cases:* Attorney-General (N.S.W) v Homebush Flour Mills Limited (1937) 56 CLR 390 Brisbane Wharves & Wooldumping Pty Ltd & Ors v Brisbane City Council & Ors [1994] QPLR 1 Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 88 ALJR 386 Con Contarino v Sydney City Council (1967) 13 LGRA 332 Deputy Federal Commissioner of Taxation (N.S.W) v W.R. Moran Pty Ltd (1939) 61 CLR 735 Director of Buildings & Lands v Shun Fung Iron Works (1995) 2 AC 11 Edgar Pty Ltd v Brisbane City Council & Ors [2002] QPELR 183 Halkava Pty Ltd v Warringah Shire Council (1970) 19 LGRA 182 Hammercall Pty Ltd v Gold Coast City Council [2002] QPELR 397. Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524 Huon Investments Pty Ltd v Port Stephens Shire Council (1972) 25 LGRA 287 Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd [2002] QPELR 116 Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 Kabale Holdings Pty Ltd v Council of the Shire of Albert (1993) QPELR 252 Kebale Holdings Pty Ltd v Chief Executive, Department of Transport [1997-1998] 18 QLCR 166 Laver v Albert Shire Council [1997] QPELR 94 Listville Pty Ltd v Laidley Shire Council (1996) QPELR 378 Lloyd v Robinson (1962) 107 CLR 142 Northern Beaches Developments Pty Ltd v Mackay City Council [1999] QPELR 389 Proctor v Brisbane City Council [1994] QPELR 309 Silverston Pty Ltd v Council of the Shire of Mulgrace & Anor [1993] QPLR 268 Standfield v Gold Coast City Council [1996] QPELR 136 Summerland Plantations Ltd v Brisbane City Council (1994) QPLR 352 and (on appeal) [1995] QCA 474 Wise…