Trowbridge v Noosa Shire Council - [2019] QPEC 54

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Trowbridge & Anor v Noosa Shire Council & Ors [2019] QPEC 54

PARTIES:

PETER SYDNEY JAMES TROWBRIDGE AND CRAIG CLIFFORD STRUDWICK
(Appellants)

v

NOOSA SHIRE COUNCIL
(Respondent)

AND

DARRYL VAUGHAN
(Third Co-Respondent by Election)

PETER MCAVOY
(Fifth Co-Respondent by Election)

GEOFFREY BROOKES
(Sixth Co-Respondent by Election)

PHILLP MACK
(Seventh Co-Respondent by Election)

NEILL KELLY
(Eighth Co-Respondent by Election)

ROBYN RYLANDS
(Ninth Co-Respondent by Election)

SUSAN VOLLERT
(Tenth Co-Respondent by Election)

FILE NO/S:

MD59 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

1 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 – 31 July 2019 and 1 August 2019

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where the Appellants seek a development approval to use 12 of the 48 houses within the Beach Road Holiday Homes development for visitor accommodation or permanent residential living or a combination of both from time to time – where a condition of the current planning approvals restricts the use of the houses to short-term visitor accommodation – where the Council refused the development application – whether a decision to approve the development application would conflict with the planning scheme – whether there are sufficient grounds to warrant approval despite the conflict

LEGISLATION:

Planning Act 2016 (Qld), s 311

Sustainable Planning Act 2009 (Qld), s 314, s 326, s 493, s 495

CASES:

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, cited

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, approved

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, applied

Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16]; [2012] QPELR 354, applied

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] QdR 302, applied

Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, cited

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46, cited

Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, cited

Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 3; [2005] QPELR 466, approved

William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, cited

Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied

COUNSEL:

B D Job QC for the Appellants
C L Hughes QC and M Batty for the Respondent

SOLICITORS:

P&E Law for the Appellants
Wakefield Sykes Solicitor for the Respondent
D Vaughan for the Third and Fifth to Tenth Co-Respondents by Election

TABLE OF CONTENTS

Introduction............................................................................................................................ 3

The decision framework.......................................................................................................... 4

Would approval of the proposed development conflict with the Noosa Plan?............................ 5

Would approval of the proposed development conflict with specific outcome O22 for the Visitor Mixed Use…

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: [2019] QPEC 54
Decision Date: 1 November 2019

CaseChat Overview and Summary

The case of Trowbridge v Noosa Shire Council concerns an appeal against the Council’s refusal to approve a development application. The Appellants sought to use 12 of the 48 houses within the Beach Road Holiday Homes development for either visitor accommodation, permanent residential living, or a combination of both from time to time. The current planning approvals restrict the use of the houses to short-term visitor accommodation. The Court of Appeal was tasked with determining whether the proposed development would conflict with the planning scheme and whether there were sufficient grounds to warrant approval despite this conflict.

The central legal issues revolved around the interpretation and application of the Sunshine Coast Regional Planning Scheme. The Appellants argued that the proposed development would not conflict with the planning scheme and that there were sufficient grounds for approval. They contended that the scheme allows for flexibility in the use of the properties, and the proposed use was within the spirit of the scheme. Conversely, the Respondent argued that the proposed development would conflict with the planning scheme and that there were insufficient grounds for approval. They maintained that the scheme’s conditions were clear and that the proposed development would not align with the intended use of the properties.

The Court of Appeal found that the proposed development would conflict with the planning scheme. It held that the current planning approvals clearly restrict the use of the houses to short-term visitor accommodation. The Court considered the objectives and policies of the planning scheme and concluded that the proposed development would not align with these objectives. Furthermore, the Court found that there were insufficient grounds to warrant approval despite the conflict. The Appellants had not demonstrated that the proposed development would be consistent with the planning scheme or that it would serve a public benefit that outweighs the conflict with the scheme.

The appeal was dismissed, and the decision of the Council to refuse the development application was upheld. The Court of Appeal determined that the proposed development would conflict with the planning scheme and that there were insufficient grounds to warrant approval despite this conflict. The Appellants were not granted the development approval they sought for the Beach Road Holiday Homes development.

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:	Trowbridge & Anor v Noosa Shire Council & Ors [2019] QPEC 54
PARTIES:	PETER SYDNEY JAMES TROWBRIDGE AND CRAIG CLIFFORD STRUDWICK (Appellants) v NOOSA SHIRE COUNCIL (Respondent) AND DARRYL VAUGHAN (Third Co-Respondent by Election) PETER MCAVOY (Fifth Co-Respondent by Election) GEOFFREY BROOKES (Sixth Co-Respondent by Election) PHILLP MACK (Seventh Co-Respondent by Election) NEILL KELLY (Eighth Co-Respondent by Election) ROBYN RYLANDS (Ninth Co-Respondent by Election) SUSAN VOLLERT (Tenth Co-Respondent by Election)
FILE NO/S:	MD59 of 2017
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Maroochydore
DELIVERED ON:	1 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 – 31 July 2019 and 1 August 2019
JUDGE:	Kefford DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where the Appellants seek a development approval to use 12 of the 48 houses within the Beach Road Holiday Homes development for visitor accommodation or permanent residential living or a combination of both from time to time – where a condition of the current planning approvals restricts the use of the houses to short-term visitor accommodation – where the Council refused the development application – whether a decision to approve the development application would conflict with the planning scheme – whether there are sufficient grounds to warrant approval despite the conflict
LEGISLATION:	Planning Act 2016 (Qld), s 311 Sustainable Planning Act 2009 (Qld), s 314, s 326, s 493, s 495
CASES:	Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, cited Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, approved Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132, applied Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16]; [2012] QPELR 354, applied Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] QdR 302, applied Martin Dillon & Associates v Townsville City Council (1981) 2 APA 134, cited Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46, cited Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPEC 32; [2018] QPELR 1026, cited Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 3; [2005] QPELR 466, approved William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33, cited Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied
COUNSEL:	B D Job QC for the Appellants C L Hughes QC and M Batty for the Respondent
SOLICITORS:	P&E Law for the Appellants Wakefield Sykes Solicitor for the Respondent D Vaughan for the Third and Fifth to Tenth Co-Respondents by Election