Trowbridge v Noosa Shire Council - [2018] QPEC 7

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Trowbridge & Ors v Noosa Shire Council & Ors [2018] QPEC 7

PARTIES:

PETER SYDNEY JAMES TROWBRIDGE AND

CRAIG CLIFFORD STRUDWICK

(Appellants)

v

NOOSA SHIRE COUNCIL

(Respondent)

and

ALISTAIR McBAIN

(1^st Co-respondent by election)

and

NOOSA PARKS ASSOCIATION INC

(2^nd Co-respondent by election)

and

DARRYL VAUGHAN

(3^rd Co-respondent by election)

and

PAUL STEWART AND DONNA COUELL

(4^th Co-respondent by election)

and

PETER McAVOY

(5^th Co-respondent by election)

and

GEOFFREY BROOKES

(6^th Co-respondent by election)

and

PHILIP MACK

(7^th Co-respondent by election)

and

NEIL KELLY

(8^th Co-respondent by election)

and

ROBYN RYLANDS

(9^th Co-respondent by election)

and

SUSAN VOLLERT

(10^th Co-respondent by election)

FILE NO/S:

59 of 2017

DIVISION:

Planning and Environment Court at Brisbane

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court at Maroochydore

DELIVERED ON:

27 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2018

JUDGE:

Everson DCJ

ORDER:

Application dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – JURISDICTION – PIECEMEAL ARGUMENT – preliminary legal point in an appeal against a refusal for a development application for a material change of use – where the co-respondents by election allege the development application was piecemeal – whether co-respondents by election can advance piecemeal argument in such an application – whether piecemeal argument should succeed in the context of common property in general and Exclusive Use Areas in particular

Planning Act 2016 (Qld) ss 311, 325

Sustainable Planning Act 2009 (Qld) ss 230, 257, 260, 261, 263, 267, 269, 456, 461, 496

Barro Group Pty Limited v Redland Shire Council [2010] 2 QdR 206

Bartlett v Brisbane City Council [2004] 1 QdR 610

Brisbane City Council v Cunningham (2001) 115 LGERA 326

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485

Savage v Cairns Regional Council [2015] QPELR 848

Savage v Cairns Regional Council (2016) 214 LGERA 192

COUNSEL:

M A Williamson QC for the Appellants

M J Batty for the Respondent

J P Hastie for the 3^rd to 10^th Co-respondents by election

SOLICITORS:

p & e Law for the Appellants

Wakefield Sykes for the Respondent

HWL Ebsworth for the 3^rd to 10^th Co-respondents by election

Introduction

This is an appeal pursuant to s 461 of the Sustainable Planning Act 2009 (Qld) (“SPA”) against the respondent’s decision to refuse an impact assessable development application seeking approval to use 19 existing eco-cabins situated at 90 Beach Road, Noosa North Shore for both visitor accommodation and permanent residential living. The eco-cabins are part of Community Titles Scheme 37583 which comprises 48 eco-cabins and associated common property. Each eco-cabin is a separate lot. Beyond the boundaries of each lot all of the land is common property. Pursuant to both the existing development approvals and the Community Management Statement (“CMS”) the lots shall be used for visitor accommodation only.[1] No increase in residential density or new physical structures are proposed. The only consequence of the development application…

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: [2018] QPEC 7
Decision Date: 27 February 2018

CaseChat Overview and Summary

In the case of Trowbridge v Noosa Shire Council, the applicant sought to appeal a decision made by the respondent in relation to a development application for a material change of use. The co-respondents by election raised the issue that the development application was piecemeal, which they believed should be grounds for dismissal of the application. The matter was brought before the court to determine whether the co-respondents by election could advance this argument, and if so, whether it should succeed.

The court was required to decide whether the co-respondents by election had standing to raise the piecemeal argument, and if they did, whether the argument was valid in the context of common property and Exclusive Use Areas. The court considered the relevant statutory provisions and case law to determine the correct interpretation and application of the relevant legislation. The court found that the co-respondents by election did have standing to raise the argument, but that the argument was not valid in this case.

The court held that the development application was not piecemeal, as it related to a single parcel of land and did not involve multiple lots or separate properties. The court found that the argument did not apply in the context of common property or Exclusive Use Areas, as the development application related to the entire property and not just a portion of it. The court dismissed the application, holding that the co-respondents by election's argument was not valid and did not provide grounds for dismissing the development application.

The court dismissed the application and made no further orders. The applicant was not successful in their appeal against the decision of the respondent in relation to the development application for a material change of use.

Orders

Orders of the court

Application 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 & Ors v Noosa Shire Council & Ors [2018] QPEC 7
PARTIES:	PETER SYDNEY JAMES TROWBRIDGE AND CRAIG CLIFFORD STRUDWICK (Appellants) v NOOSA SHIRE COUNCIL (Respondent) and ALISTAIR McBAIN (1^st Co-respondent by election) and NOOSA PARKS ASSOCIATION INC (2^nd Co-respondent by election) and DARRYL VAUGHAN (3^rd Co-respondent by election) and PAUL STEWART AND DONNA COUELL (4^th Co-respondent by election) and PETER McAVOY (5^th Co-respondent by election) and GEOFFREY BROOKES (6^th Co-respondent by election) and PHILIP MACK (7^th Co-respondent by election) and NEIL KELLY (8^th Co-respondent by election) and ROBYN RYLANDS (9^th Co-respondent by election) and SUSAN VOLLERT (10^th Co-respondent by election)
FILE NO/S:	59 of 2017
DIVISION:	Planning and Environment Court at Brisbane
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court at Maroochydore
DELIVERED ON:	27 February 2018
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2018
JUDGE:	Everson DCJ
ORDER:	Application dismissed
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – JURISDICTION – PIECEMEAL ARGUMENT – preliminary legal point in an appeal against a refusal for a development application for a material change of use – where the co-respondents by election allege the development application was piecemeal – whether co-respondents by election can advance piecemeal argument in such an application – whether piecemeal argument should succeed in the context of common property in general and Exclusive Use Areas in particular Planning Act 2016 (Qld) ss 311, 325 Sustainable Planning Act 2009 (Qld) ss 230, 257, 260, 261, 263, 267, 269, 456, 461, 496 Barro Group Pty Limited v Redland Shire Council [2010] 2 QdR 206 Bartlett v Brisbane City Council [2004] 1 QdR 610 Brisbane City Council v Cunningham (2001) 115 LGERA 326 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Savage v Cairns Regional Council [2015] QPELR 848 Savage v Cairns Regional Council (2016) 214 LGERA 192
COUNSEL:	M A Williamson QC for the Appellants M J Batty for the Respondent J P Hastie for the 3^rd to 10^th Co-respondents by election
SOLICITORS:	p & e Law for the Appellants Wakefield Sykes for the Respondent HWL Ebsworth for the 3^rd to 10^th Co-respondents by election