Simmonds v Redland Shire Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Simmonds & Ors v Redland Shire Council & Anor [2005] QPEC 007

PARTIES:

LLOYD JACK SIMMONDS
(first appellant)

And

MARGIE JOYCE SIMMONDS
(second appellant)

And

ASHOK SIHOTA
(third appellant)

v

REDLAND SHIRE COUNCIL
(respondent)

And

PETER VF STELLER AND PATRICIA STELLER
(co-respondents)

FILE NO/S:

Appeal No 2755 of 2003

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2004, further submissions and material received up to 14 December 2004

JUDGE:

Judge Rackemann

ORDER:

The preliminary question is determined by concluding that the proposal is self assessable development for the purposes of the planning scheme.

CATCHWORDS:

PLANNING AND ENVIRONMENT - CONSTRUCTION OF PLANNING SCHEMES – application to develop single detached dwelling house - whether terms of transitional planning scheme necessitated impact assessable, code assessable or self-assessable development  

Integrated Planning Act
Local Government (Planning and Environment) Act

Cases considered:

Luke v Maroochy Shire Council and Watpac Developments (2003) QPELR 5
Pacific 7 Pty Ltd v City of Sandringham (1982) VR 157
Woolworths Limited v Caboolture Shire Council (2004) QPEC 15
ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

Mr W Cochrane for the appellants

Mr S Ure for the respondent

Mr S Keliher for the co-respondents

SOLICITORS:

McCarthy Ryan Durie Neil for the appellants

Hopgood Ganim for the respondent

Robert Milne Legal for the co-respondents

1. The appellants appeal against the Council’s approval of an application, by the co-respondents, to develop a single detached dwelling house on land located at 4 Champion Lane, Wellington Point and more particularly described as Lot 8 on RP 14178.  The subject land is located on a promontory that juts northwards from the mainland and is within an established area.  The site is currently vacant, following the demolition of a previous dwelling. 

1. It is common ground that the subject site is an existing allotment of 602 square metres within the Residential B zone, has a frontage of a little more than 10 metres and that, following amendments, the proposed dwelling house does not exceed two storeys in height.

1. The question which has been ordered to be determined prior to trial is whether the proposal, in its current form, is impact assessable, code assessable or self assessable.

1. The Planning Scheme for Redland is a transitional one, to which Chapter 6 of the Integrated Planning Act (IPA) applies.  The relevant level of assessment is determined in accordance with the transitional provisions of IPA which, in turn, refer to the position which would have applied under the now repealed Local Government (Planning and Environment) Act (P&E Act).

1. Assessable development is defined, in s 6.1.1 of IPA, by reference to, amongst other things, development, not inconsistent with Schedules 8 or 9, that under the P&E Act would have required an application to be made either for a continuing approval or under s 4.3(1) of the P&E Act.

1. The expression “continuing approval”…