Tomes v Toowoomba Regional Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Tomes v Toowoomba Regional Council [2011] QPEC 48

PARTIES:

LIONEL R.G. TOMES
(Appellant)

V

TOOWOOMBA REGIONAL COUNCIL
(Respondent)

FILE NO/S:

64/2010

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23  March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2011

JUDGE:

R Jones DCJ

ORDER:

1.   The appeal is dismissed.

2.   I will hear from the parties as to whether any further orders are required.

CATCHWORDS:

PLANNING LAW – Appeal Against Enforcement Notice Issued by Respondent – whether appellant’s sawmilling activities on the land were rural uses (agriculture) or industrial uses (general industry) under the town planning scheme of the respondent – whether carrying out assessable development without a permit – amenity under rural residential zone – impact on amenity caused predominantly by smoke, dust and noise

Sustainable Planning Act 2009 ss 473, 474, 493(6), 578

Arpedgo Pty Ltd v Beaudesert Shire Council (1980) Qd R 88

Maher v Hervey Bay City Council (2008) QPEC 123

Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337

COUNSEL:

Mr Tomes appeared in person

Mr Ure of Counsel for the respondent

SOLICITORS:

The appellant was not represented

King & Co, Lawyers

1. These proceedings are concerned with an appeal by Mr Tomes (the appellant) against an Enforcement Notice issued by the respondent on 9 July 2010. That notice required the appellant to cease carrying out sawmilling activities carried out on his land located at 190 Willis Road, Meringandan. Meringandan is on the outskirts of Toowoomba. The appeal is brought pursuant to s 473 of the Sustainable Planning Act 2009 (the Act). Pursuant to s 474(1) of the Act, the lodging of a notice of appeal about an enforcement notice stays the operation of such notice until the appeal is, relevantly here, dismissed. Pursuant to s 493(6), the respondent has the onus of establishing that the appeal should be dismissed.

The issues in the appeal

1. The notice of appeal comprises of seven grounds of appeal.  However, pursuant to an order made by Rackemann DCJ on 9 December 2010, the issues in the appeal were determined to be:

“(a)whether the sawmill activity referred to in the Enforcement Notice issued to the appellant on 9 July 2010 (“the Enforcement Notice”) falls within the definition of ‘industrial uses; general industry’ contained in s 2.1.2 of the Rosalie Shire Council Planning Scheme 2008;

(b)whether the sawmill activity referred to in the Enforcement Notice falls within the definition of ‘rural uses; agriculture’ contained in s 2.1.1 of the Rosalie Shire Council Town Planning Scheme 2008;

(c)whether the sawmill activity referred to in the Enforcement Notice constitutes a development offence pursuant to the provision of the Sustainable Planning Act 2009.”

These issues largely catch those raised in grounds 3 and 4 of the appellant’s notice of appeal.

Background

1. To a large extent the background to this appeal is set out in the agreed statement of facts:[1]

   [1]Exhibit 1.

“1.         Lionel Robert George Tomes (“the appellant”) and…