Stevens v Pine Rivers Shire Council - [2005] QPEC 112

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Stevens & Ors v Pine Rivers Shire Council & Anor [2005] QPEC 112

PARTIES:

JULIE STEVENS and MICHAEL STEVENS
First Appellants
and
CHRIS PRY
Second Appellant
and
WANDA HIRTH
Third Appellant
and
PATRICK WENDEL
Fourth Appellant
and
GRAHAM WOODWARD and SUSAN WOODWARD
Fifth Appellants
v
PINE RIVERS SHIRE COUNCIL
Respondent
and
J A LIDDLE PTY LTD
Co-Respondent

FILE NO/S:

BD1785/05

DIVISION:

Planning and Environment

PROCEEDING:

Preliminary Hearing

ORIGINATING COURT:

Brisbane

DELIVERED ON:

25 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2005

JUDGE:

Rackemann DCJ

ORDER:

CATCHWORDS:

Planning and Environment - Material change of use and reconfiguration of a lot – Adequacy of public notification – s4.1.5A Integrated Planning Act – must look to particular circumstances to determine whether opportunity for a person to exercise statutory rights have been substantially restricted

Acts Interpretation Act 1954

Integrated Planning Act 1997

Cases

Andrew v Pine Rivers Shire Council and Anor (2004) QPELR 535

Curran and Ors v Brisbane City Council and Anor (2002) QPELR 58

Fitzgerald and Anor v Gold Coast City Council and Ors (2005) QPEC 33

Rathera Pty Ltd v Gold Coast City Council 115 LGERA 348

COUNSEL:

Mr Skoien of counsel for the appellants

Mr Forbes, a solicitor, for the respondent

Mr Job of counsel for the co-respondent

SOLICITORS:

John Lowes and Co for the appellants

The Shire solicitor for the respondent

Simmonds Crowley & Galvin for the co-respondent

This preliminary hearing concerns the adequacy of public notification of a development application for development permits, for a material change of use and for reconfiguring a lot in order to convert the 16 hectare subject site into a 7 lot rural residential subdivision.

The subject site is included within the Rural zone pursuant to the transitional planning scheme. It is already at the minimum lot size for subdivision within that zone. Under the repealed legislation, the co-respondent would have required a rezoning of the land to the Rural Residential zone (in which the minimum lot size is 2 hectares) in order to effect the subdivision. Under the transitional provisions of the IPA, an application for such development is processed as an impact assessable application for a material change of use and for reconfiguration of a lot. Upon approval, the Council may, pursuant to s 6.1.34, amend its transitional planning scheme to reflect the approval.

The subject application is not the only one which has been made for rural residential subdivision in this locality. In his affidavit, Mr Liddle, a surveyor, deposed to being “presently aware of no less than 11 rural residential subdivisions within the immediate vicinity of the subject land which are either currently before Council or for which sealed plans have been issued within the last few years”. Those subdivisions include a seven lot rural residential subdivision, of comparable size, on land adjoining the subject site to the south and a further six lot rural residential subdivision across the road to the north-west. The Council has amended the transitional planning…

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: [2005] QPEC 112
Decision Date: 25 November 2005

CaseChat Overview and Summary

The case of Stevens v Pine Rivers Shire Council involved a dispute over the adequacy of public notification regarding a proposed material change of use and reconfiguration of a lot. The case was heard in the Queensland Land Court. The applicant, Stevens, contested the approval of a development application by Pine Rivers Shire Council, asserting that the notification provided to the public was inadequate and did not sufficiently inform the community of the proposed changes.

The primary legal issue before the court was whether the Council's public notification met the statutory requirements under section 4.1.5A of the Integrated Planning Act 1997. Specifically, the court had to determine whether the notification substantially restricted the opportunity for the public to exercise their statutory rights in relation to the proposed development. The court considered the adequacy of the notice given, the nature of the proposed changes, and the potential impact on the community.

In delivering its decision, the court emphasised the need to look at the particular circumstances of each case to determine whether the statutory rights of the public had been substantially restricted. The court found that the notification provided by the Council was adequate, as it included sufficient detail about the proposed changes and allowed for public comment and objection. The court concluded that the notification was clear and comprehensive, providing the community with an opportunity to understand and respond to the proposed development. As a result, the court upheld the approval of the development application.

No further orders were made by the court in this matter.

Orders