Serafini v Gladstone Regional Council - [2012] QPEC 83

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Serafini v Gladstone Regional Council & Anor [2012] QPEC 83

PARTIES:

LUIS SERAFINI
(appellant)

v

GLADSTONE REGIONAL COUNCIL
(respondent)

FILE NO:

D60/2009

DIVISION:

Planning & Environment Court

PROCEEDING:

Hearing of an Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

13 December 2012

DELIVERED AT:

Brisbane

HEARING DATES:

6, 7 and 8 November 2012; Submissions closed 30 November 2012

JUDGE:

R S Jones DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

LEGISLATION:

CASES:

PLANNING LAW – alleged conflict with the respondent’s Transitional Planning Scheme 1999 – alleged conflict with the IPA Planning Scheme of the respondent and alleged conflict with the provisions of State Planning Policy 1/92 re Good Quality Agricultural Land – fragmentation of rural grazing land – fragmentation of GQAL land –
PLANNING LAW – construction of Planning Schemes – construction of State Policy 1/92 concerning Good Quality Agricultural Land – whether in the event there was genuine conflict with the Planning Schemes sufficient grounds existed for approval despite the conflict – public need

Integrated Planning Act 1997 (Qld)

Sustainable Planning Act 2009 (Qld)

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 102
Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88
Barns v Maroochy Shire Council (2010) QPEC 2
Bassingthwaite v Roma Town Council & Ors (2010) QPEC 91
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPEC 024
Isgro v Gold Coast City Council (2003) QPELR 414
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Stappen v BCC & Ors (2005) QPELR 466
Webster v Caboolture Shire Council [2008] QPEC 82
Weightman v Gold Coast City Council (2003) 2 Qd R 441
Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337
Woolworths Limited v Maryborough City Council (No 2) (2006) 1 Qd R 273
ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

Mr AN Skoien with Mr R J Northcott for the appellant
Mr M Williamson with Mr Batty for the respondent

SOLICITORS:

IPA Law for the appellant
MRH Lawyers for the respondent

This proceeding is concerned with an appeal against a decision of the respondent Council to refuse a development application seeking a development permit for the reconfiguration of one large rural lot into 16 lots. For the reasons set out below, the order of the Court is that the appeal is dismissed.

The site

The subject property is located some 46 kilometres in a southerly direction from the regional port city of Gladstone. The nearest commercial and retail facilities are located at Tannum Sands about 30 kilometres to the north. The closest general store is located at Turkey Beach and the nearest primary school at Bororen to the south. Waste disposal and school bus services are available. The land, more properly described as Lot 2 on RP 612473, comprises an area of just under 935 hectares. It is bounded to the north-west…

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: [2012] QPEC 83
Decision Date: 13 December 2012

CaseChat Overview and Summary

In the case of Serafini v Gladstone Regional Council, the applicant, Serafini, sought to challenge the council’s decision to refuse a development application for the subdivision of his property. The dispute involved the alleged conflicts with the Gladstone Regional Council's Transitional Planning Scheme 1999, the Gladstone Regional Council's IPA Planning Scheme, and the provisions of State Planning Policy 1/92 concerning Good Quality Agricultural Land (GQAL). The case was heard in the Queensland Land Court.

The central legal issues before the court were whether the applicant's proposed subdivision of his rural grazing land, which was classified as GQAL, genuinely conflicted with the Gladstone Regional Council's Planning Schemes and the State Planning Policy 1/92, and if so, whether there were sufficient grounds for approval despite these conflicts. The court had to determine the extent to which the Planning Schemes and the State Planning Policy 1/92 could be interpreted to allow for the proposed subdivision, particularly in the context of the public need and the preservation of GQAL.

The court examined the relevant provisions of the Gladstone Regional Council's Planning Schemes and the State Planning Policy 1/92, concluding that the proposed subdivision did indeed conflict with these documents. However, the court also considered the public need for the proposed subdivision, which was argued to be significant. Despite this, the court found that the public need did not sufficiently outweigh the importance of preserving GQAL. Therefore, the court dismissed the appeal, upholding the council's decision to refuse the development application.

Orders

Orders of the court

The appeal is dismissed.

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:	Serafini v Gladstone Regional Council & Anor [2012] QPEC 83
PARTIES:	LUIS SERAFINI (appellant) v GLADSTONE REGIONAL COUNCIL (respondent)
FILE NO:	D60/2009
DIVISION:	Planning & Environment Court
PROCEEDING:	Hearing of an Appeal
ORIGINATING COURT:	Planning & Environment Court of Queensland, Brisbane
DELIVERED ON:	13 December 2012
DELIVERED AT:	Brisbane
HEARING DATES:	6, 7 and 8 November 2012; Submissions closed 30 November 2012
JUDGE:	R S Jones DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS: LEGISLATION: CASES:	PLANNING LAW – alleged conflict with the respondent’s Transitional Planning Scheme 1999 – alleged conflict with the IPA Planning Scheme of the respondent and alleged conflict with the provisions of State Planning Policy 1/92 re Good Quality Agricultural Land – fragmentation of rural grazing land – fragmentation of GQAL land – PLANNING LAW – construction of Planning Schemes – construction of State Policy 1/92 concerning Good Quality Agricultural Land – whether in the event there was genuine conflict with the Planning Schemes sufficient grounds existed for approval despite the conflict – public need Integrated Planning Act 1997 (Qld) Sustainable Planning Act 2009 (Qld) AAD Design Pty Ltd v Brisbane City Council [2012] QCA 102 Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 Barns v Maroochy Shire Council (2010) QPEC 2 Bassingthwaite v Roma Town Council & Ors (2010) QPEC 91 Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPEC 024 Isgro v Gold Coast City Council (2003) QPELR 414 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Stappen v BCC & Ors (2005) QPELR 466 Webster v Caboolture Shire Council [2008] QPEC 82 Weightman v Gold Coast City Council (2003) 2 Qd R 441 Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337 Woolworths Limited v Maryborough City Council (No 2) (2006) 1 Qd R 273 ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd (1992) 1 Qd R 352
COUNSEL:	Mr AN Skoien with Mr R J Northcott for the appellant Mr M Williamson with Mr Batty for the respondent
SOLICITORS:	IPA Law for the appellant MRH Lawyers for the respondent