Webster v Caboolture Shire Council - [2008] QPEC 82

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Webster v Caboolture Shire Council [2008] QPEC 82

PARTIES:

DARYL WEBSTER

(Appellant)

v

CABOOLTURE SHIRE COUNCIL

(Respondent)

and

AMY GAUCI, BERNADETTE MM NAGY, SARAH NAGY, HELGA SCHMIDL, LASZIO SCHMIDL, KEITH LOBEGEIER, MYRA L LOBEGEIER, PATRICK KELLY, DENISE KELLY, WILLIAM DYER, CHRISTINE DYER, EDWARD NIXON, MANDY NIXON AND RUTH MCDONALD BY THEIR AGENT AMY GAUCI

(First Co-Respondents)

and

LAURENCE J RUSSO, DIANA R RUSSO, RYAN J AYRE, EMMA W WEBBER, BARRY J HRYNKO, JULIE P YOUNG, JOHN HRYNKO, LAURENCE RUSSO, KENNETH H BUTCHER, PATRICIA A BUTCHER, WILLIAM H SCHULTZ, SANDRA K SCHULTZ, RHONDA LOFTHOUSE AND PETER LOFTHOUSE BY THEIR AGENT LAURENCE R RUSSO

(Second Co-Respondents)

and

STEPHEN ARNOTT-HOLLICK, FAYE ARNOTT-HOLLICK, PATRICIA D FERGUSON, NATASHA YVANOFF, ELIZABETH YVANOFF, ROBERTO YVANOFF, ANNETTE C CRABB, BARBARA BOWTELL, BOB MACZKOWIACK, JOHN CONNOLLY, SANDRA CONNOLLY BY THEIR AGENT STEPHEN ARNOTT-HOLLICK

(Third Co-Respondents)

FILE NO:

158/08

PROCEEDING:

Appeal

DELIVERED ON:

31 October 2008

DELIVERED AT:

Brisbane

HEARING DATES:

25, 26, 27, 28 and 29 August 2008

JUDGE:

Judge Brabazon QC

ORDER:

Appeal dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – industrial development in rural residential area – conflict with planning scheme – conflict with desired environmental outcomes – need for public transport – appeal against refusal for bus depot in area zoned rural residential – amenity

LEGISLATION CITED:

Integrated Planning Act 1997 (Qld) s 2.1.2, s 2.1.3, s 2.2.1, s 2.5A.21, s 3.5.13, s 3.5.14, s 4.1.50, s 5.5.1

CASES CITED:

Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QPELR 285

Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157

Australian Retail Freeholds Pty Ltd v Shire of Kalamunda (1990) SR (WA) 294

Breadsell and Shaw v Bundaberg City Council [2004] QPEC 060

Broad v Baptist Union v BCC [1986] Qd R 317

Canbrai Pty Ltd v Greater Geelong City Council (2002) VCAT 1048

ChatresConstruction Pty Ltd v Randwick Municipal Council (1971-1972) 25 LGRA 193

Holts Hill Quarries Pty Ltd v Gold Coast City Council [1999] QPELR 415

Isgro v Gold Coast City Council [2003] QPELR 414

Koerner & Ors v Maroochy Shire Council & Ors [2003] QPEC 054

Luke v Maroochy Shire Council and Watpac Developments Pty Ltd [2003] QPELR 447

Pinder Architects v City of Sterling (1996) 92 LGERA 165

Ross Walmore Property Pty Ltd v Maroochy Shire Council [2008] QPEC 050

Stappen Pty Ltd v Brisbane City Council (2005)

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474

Woolworths Ltd v Maryborough City Council(No. 2) [2006] 1 Qd R 273

COUNSEL:

Mr R Traves SC and Mr W Cochrane for the Appellant

Mr S Ure for the First Respondent

Miss S Holland for the Co-Respondents

SOLICITORS:

Everingham Lawyers for the Appellant

DLA Phillips Fox for the First Respondent

Irish Bentley Lawyers for the Co-Respondents

The Issues

[1] This appeal is…

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: [2008] QPEC 82
Decision Date: 31 October 2008

CaseChat Overview and Summary

The case of Webster v Caboolture Shire Council involved the applicant, Webster, appealing a decision by the Caboolture Shire Council to refuse permission for a bus depot in an area zoned for rural residential purposes. The applicant argued that the refusal was contrary to the planning scheme and desired environmental outcomes, and that the need for public transport in the area outweighed the residential zoning. The Queensland Land Court was tasked with determining the validity of the appeal and whether the decision to refuse the permit was justified.

The primary legal issues revolved around the interpretation of the planning scheme and the council's discretion in approving or rejecting development applications. The court needed to assess whether the proposed bus depot conflicted with the planning scheme and desired environmental outcomes, and whether the refusal was unreasonable in light of the need for public transport infrastructure. The applicant argued that the refusal was not in accordance with the planning scheme and that the council failed to consider the need for public transport.

The court, in dismissing the appeal, held that the refusal of the permit was consistent with the planning scheme and desired environmental outcomes. The court found that the proposed development would conflict with the rural residential zoning and the desired environmental outcomes for the area. Additionally, the court determined that the need for public transport did not override the planning scheme's zoning provisions. The council's decision to refuse the permit was deemed reasonable and in accordance with the planning scheme.

The final orders of the court were that the appeal was dismissed, upholding the council's decision to refuse the permit for the bus depot. The court found that the refusal was justified under the planning scheme and that the applicant had not demonstrated that the council's decision was unreasonable.

Orders

Orders of the court

Appeal 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:	Webster v Caboolture Shire Council [2008] QPEC 82
PARTIES:	DARYL WEBSTER (Appellant) v CABOOLTURE SHIRE COUNCIL (Respondent) and AMY GAUCI, BERNADETTE MM NAGY, SARAH NAGY, HELGA SCHMIDL, LASZIO SCHMIDL, KEITH LOBEGEIER, MYRA L LOBEGEIER, PATRICK KELLY, DENISE KELLY, WILLIAM DYER, CHRISTINE DYER, EDWARD NIXON, MANDY NIXON AND RUTH MCDONALD BY THEIR AGENT AMY GAUCI (First Co-Respondents) and LAURENCE J RUSSO, DIANA R RUSSO, RYAN J AYRE, EMMA W WEBBER, BARRY J HRYNKO, JULIE P YOUNG, JOHN HRYNKO, LAURENCE RUSSO, KENNETH H BUTCHER, PATRICIA A BUTCHER, WILLIAM H SCHULTZ, SANDRA K SCHULTZ, RHONDA LOFTHOUSE AND PETER LOFTHOUSE BY THEIR AGENT LAURENCE R RUSSO (Second Co-Respondents) and STEPHEN ARNOTT-HOLLICK, FAYE ARNOTT-HOLLICK, PATRICIA D FERGUSON, NATASHA YVANOFF, ELIZABETH YVANOFF, ROBERTO YVANOFF, ANNETTE C CRABB, BARBARA BOWTELL, BOB MACZKOWIACK, JOHN CONNOLLY, SANDRA CONNOLLY BY THEIR AGENT STEPHEN ARNOTT-HOLLICK (Third Co-Respondents)
FILE NO:	158/08
PROCEEDING:	Appeal
DELIVERED ON:	31 October 2008
DELIVERED AT:	Brisbane
HEARING DATES:	25, 26, 27, 28 and 29 August 2008
JUDGE:	Judge Brabazon QC
ORDER:	Appeal dismissed
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – industrial development in rural residential area – conflict with planning scheme – conflict with desired environmental outcomes – need for public transport – appeal against refusal for bus depot in area zoned rural residential – amenity
LEGISLATION CITED:	Integrated Planning Act 1997 (Qld) s 2.1.2, s 2.1.3, s 2.2.1, s 2.5A.21, s 3.5.13, s 3.5.14, s 4.1.50, s 5.5.1
CASES CITED:	Arksmead Pty Ltd v Council of the City of Gold Coast [2000] QPELR 285 Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157 Australian Retail Freeholds Pty Ltd v Shire of Kalamunda (1990) SR (WA) 294 Breadsell and Shaw v Bundaberg City Council [2004] QPEC 060 Broad v Baptist Union v BCC [1986] Qd R 317 Canbrai Pty Ltd v Greater Geelong City Council (2002) VCAT 1048 ChatresConstruction Pty Ltd v Randwick Municipal Council (1971-1972) 25 LGRA 193 Holts Hill Quarries Pty Ltd v Gold Coast City Council [1999] QPELR 415 Isgro v Gold Coast City Council [2003] QPELR 414 Koerner & Ors v Maroochy Shire Council & Ors [2003] QPEC 054 Luke v Maroochy Shire Council and Watpac Developments Pty Ltd [2003] QPELR 447 Pinder Architects v City of Sterling (1996) 92 LGERA 165 Ross Walmore Property Pty Ltd v Maroochy Shire Council [2008] QPEC 050 Stappen Pty Ltd v Brisbane City Council (2005) Weightman v Gold Coast City Council [2003] 2 Qd R 441 Wincam Developments No. 3 Pty Ltd v Brisbane City Council [2004] QPELR 474 Woolworths Ltd v Maryborough City Council(No. 2) [2006] 1 Qd R 273
COUNSEL:	Mr R Traves SC and Mr W Cochrane for the Appellant Mr S Ure for the First Respondent Miss S Holland for the Co-Respondents
SOLICITORS:	Everingham Lawyers for the Appellant DLA Phillips Fox for the First Respondent Irish Bentley Lawyers for the Co-Respondents