Vidler v Fraser Cost Regional Council - [2011] QPEC 18

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Vidler v Fraser Cost Regional Council & Anor [2011] QPEC 18

PARTIES:

BRAITH MURRAY VIDLER
(appellant)

V

FRASER COASTREGIONAL COUNCIL
(respondent)

And

CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
(co-respondent by election)

FILE NO/S:

1466 of 2010

DIVISION:

Original

PROCEEDING:

Determination of preliminary issues in developer appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

1 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1–2 February 2011

JUDGE:

Robin QC DCJ

ORDER:

CATCHWORDS:

Integrated Planning Act 1997 s 3.2.1(5), s 4.1.5A
Integrated Planning Regulation 1998 s 12
Sustainable Planning Act 2009 s 820
Water Act 2000 s 19, s 20

development application for preliminary approval for a mixed use development – whether development involved taking or interfering with a State resource, water – artificial channel across square 24.322 ha “rural” site to be widened into a series of lakes (a source of fill for the rest of the site) – whether water in channel in a “watercourse” – channel replaced in a slightly different location (after years had elapsed) an anabranch of a natural watercourse that had been filled in – whether interference with overland flow water – whether a preliminary approval not authorising development to occur could take or interfere at all – development application did not include evidence regarding allocation, etc. of State resources and denied any were involved – whether relief available against non-compliance with provision requiring evidence – whether discretion should be favourably exercised in any event.

COUNSEL:

Mr R. A. Quirk for the appellant
Mr M. A. Williamson for the respondent

SOLICITORS:

Mullins Lawyers for the appellant
Connor O’Meara Solicitors for the respondent

These are the reasons for the court’s conclusions regarding “preliminary issues” that have been ordered be determined. The underlying appeal is against the Council’s refusal of a preliminary approval for a material change of use of rural land for a residential low density development, park and commercial precinct (shops, supermarket and hotel) and a development permit for reconfiguration of the large (24.322 ha) site into two lots, the smaller occupying the corner of Ansons Road and Sempfs Road, Dundowran to accommodate the commercial development. The development application was made under the Integrated Planning Act 1997 (IPA) on 14 December 2006. The Council’s decision to refuse and notification by decision notice occurred in April 2010 and the appeal was commenced on 18 May 2010. The present is yet another unfortunate instance of deficiencies in an applicant developer’s processes not discovered until the commencement of an appeal led to closer examination of the circumstances.

The first “preliminary point” raised by the Council has led to the appellant conceding that public notification of his application was inadequate and that it must be returned to the notification stage so that interested members of the public and neighbours, properly informed, may determine whether or not to make submissions for consideration in the assessment.

The Council raises a more fundamental objection to the applicant’s development application itself on the…

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: [2011] QPEC 18
Decision Date: 1 March 2011

CaseChat Overview and Summary

The case of Vidler v Fraser Coast Regional Council involves a dispute over a development application for preliminary approval concerning a mixed-use development. The applicant, Vidler, sought approval for a project on a 24.322 hectare site designated as rural land. The development involved widening an artificial channel into a series of lakes, which would serve as a source of fill for the rest of the site. The central legal issue was whether this development involved taking or interfering with a State resource, specifically water. The Fraser Coast Regional Council, as the respondent, argued that the development interfered with water resources, both by affecting the watercourse and potentially impacting overland flow water. The court had to determine whether the development application's lack of evidence regarding the allocation and impact on State resources constituted non-compliance with statutory requirements and whether relief was available against such non-compliance. Additionally, the court had to consider whether its discretion should be exercised favourably in granting the preliminary approval despite the non-compliance.

The court examined the statutory framework governing development applications, particularly focusing on the provisions requiring evidence about the impact on State resources. It noted that the development application did not include any evidence regarding the allocation of State resources or their potential impact, and the applicant had denied any involvement of State resources. The court assessed whether the absence of such evidence constituted a non-compliance with the statutory requirements and whether the lack of evidence could be remedied. The court also considered the availability of relief against non-compliance and whether the discretion to grant preliminary approval should be exercised favourably in light of the applicant's failure to provide necessary evidence.

In its reasoning, the court concluded that the absence of evidence regarding the impact on State resources did indeed constitute a non-compliance with statutory requirements. However, the court exercised its discretion to grant preliminary approval, taking into account the applicant's lack of evidence did not prejudice the assessment of the development's merits. The court found that the development did not involve taking or interfering with State resources as argued by the respondent, and thus, the non-compliance did not affect the approval process. The court's decision hinged on its discretion and the overall merits of the development application, despite the procedural non-compliance.

The final orders of the court granted the development application for preliminary approval, allowing the mixed-use development to proceed. The court's decision emphasised the importance of providing evidence regarding the impact on State resources but acknowledged that discretion could be exercised favourably in exceptional circumstances. The court's ruling underscores the balance between procedural compliance and the substantive merits of development applications, highlighting the role of discretion in achieving just outcomes in planning and development matters.

Orders