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Wilhelm v Logan City Council & Ors

Wilhelm v Logan City Council & Ors

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SUPREME COURT OF QUEENSLAND

CITATION:

Wilhelm v Logan City Council & Ors [2020] QCA 273

PARTIES:

OTTO WILHELM
(applicant)
v
LOGAN CITY COUNCIL
(first respondent)
CITIMARK PROPERTIES PTY LTD
ACN 066 613 349
(second respondent)
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING
(third respondent)

FILE NO/S:

Appeal No 1555 of 2020
P & E No 3364 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2019] QPEC 67 (Williamson QC DCJ)

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2020

JUDGES:

Morrison, Philippides and Mullins JJA

ORDERS:

1. Application for leave to appeal refused.

2. The applicant must pay the first and second respondents’ costs of the application.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the planning scheme set out a number of “centre activities” – where the planning scheme also established a hierarchy of centres – where “centre” is not defined – where the proposed development consisted of three uses that fell within “centre activities” – where the primary judge found that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre – where the proposed development was of a small scale – whether the proposed development was for a new centre under the planning scheme

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the proposed site was of an urban character – where the anticipated noise, light and activity of the use of the development was inconsistent with the character of the Rural residential zone, but not with the urban character of the site – where the proposed development did not seek approval for any of the uses anticipated in the Overall Outcomes for the precinct in the Rural residential zone in which the site is situated – whether, as a matter of interpretation of the planning scheme, the uses that were not mentioned in the Overall Outcomes for the Rural residential zone were expressly discouraged in that zone

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENTAL JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the primary judge was…

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: [2020] QCA 273
Decision Date: 4 December 2020

CaseChat Overview and Summary

Wilhelm brought an appeal against the decision of the respondent Logan City Council to approve a development application for a Service station, Shop, and Food and drink outlet to operate 24 hours a day, seven days a week, on land in the Rural residential zone. The respondents had approval for the development, which consisted of three uses that fell within “centre activities” set out in the planning scheme, but “centre” was not defined in the planning scheme. The primary judge found that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre. The primary judge was satisfied that the development was of a small scale, would not adversely affect existing or planned centres, and there was a community and economic need for the Service station and a planning need for the Service station. Wilhelm appealed the decision of the primary judge to the Queensland Planning and Environment Court, which was dismissed.

The court was required to determine whether the primary judge erred in exercising the planning discretion under section 60(3) Planning Act 2016 (Qld), and whether the uses that were not mentioned in the Overall Outcomes for the Rural residential zone were expressly discouraged in that zone. The court also had to consider whether the primary judge was correct in finding that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre.

The court found that the primary judge was not in error when exercising the planning discretion under section 60(3) Planning Act 2016 (Qld). The court held that the primary judge was correct in finding that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre. The court also found that the primary judge was correct in finding that the development did not seek approval for any of the uses anticipated in the Overall Outcomes for the precinct in the Rural residential zone in which the site is situated, but the proposed development was of a small scale and the anticipated noise, light, and activity of the use of the development was inconsistent with the character of the Rural residential zone, but not with the urban character of the site. The court found that the primary judge was correct in finding that there was a community and economic need for the Service station and a planning need for the Service station. The court found that the primary judge was correct in finding that the development would not adversely affect existing or planned centres.

The application for leave to appeal was dismissed, and the applicant must pay the first and second respondents’ costs of the application.

Orders

Orders of the court

1. Application for leave to appeal refused.

2. The applicant must pay the first and second respondents’ costs of the application.

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:	Wilhelm v Logan City Council & Ors [2020] QCA 273
PARTIES:	OTTO WILHELM (applicant) v LOGAN CITY COUNCIL (first respondent) CITIMARK PROPERTIES PTY LTD ACN 066 613 349 (second respondent) CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING (third respondent)
FILE NO/S:	Appeal No 1555 of 2020 P & E No 3364 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Planning and Environment Court Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane – [2019] QPEC 67 (Williamson QC DCJ)
DELIVERED ON:	4 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2020
JUDGES:	Morrison, Philippides and Mullins JJA
ORDERS:	1. Application for leave to appeal refused. 2. The applicant must pay the first and second respondents’ costs of the application.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the planning scheme set out a number of “centre activities” – where the planning scheme also established a hierarchy of centres – where “centre” is not defined – where the proposed development consisted of three uses that fell within “centre activities” – where the primary judge found that the planning scheme contemplated centre activities could be undertaken in a centre and outside of a centre – where the proposed development was of a small scale – whether the proposed development was for a new centre under the planning scheme ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the proposed site was of an urban character – where the anticipated noise, light and activity of the use of the development was inconsistent with the character of the Rural residential zone, but not with the urban character of the site – where the proposed development did not seek approval for any of the uses anticipated in the Overall Outcomes for the precinct in the Rural residential zone in which the site is situated – whether, as a matter of interpretation of the planning scheme, the uses that were not mentioned in the Overall Outcomes for the Rural residential zone were expressly discouraged in that zone ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENTAL JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – OTHER MATTERS – where the respondents had approval for a development consisting of a Service station, Shop and Food and drink outlet to operate seven days per week, 24 hours a day on land in the Rural residential zone – where the primary judge was…