Wust v Moreton Bay Regional Council - [2017] QPEC 27

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wust v Moreton Bay Regional Council [2017] QPEC 27

PARTIES:

BRIAN GERARD WUST

(Appellant)

v

MORETON BAY REGIONAL COUNCIL

(Respondent)

FILE NO/S:

3883/16

PROCEEDING:

Appeal

DELIVERED ON:

25 May 2017

DELIVERED AT:

Bundaberg

HEARING DATE:

19 and 20 April 2017, at Brisbane

JUDGE:

Bowskill QC DCJ

ORDER:

The appeal is allowed.

The disputed conditions 2(a)(i) to (v) and 37 are not required to be included in the development permit.

The parties are to prepare and provide to the court appropriate orders, reflecting the agreement of the parties in exhibit 9, and the decision of the court in relation to the disputed conditions.

I will hear the parties in relation to costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT APPLICATION – CONDITIONS APPEAL – proposed multiple dwelling development at Morayfield – disputed conditions concerning orientation of two of the units comprising the development, and whether provision of pedestrian connection to second street frontage required – whether conditions required in order to prevent conflict with the relevant planning schemes – whether the conditions are relevant and reasonably required

Sustainable Planning Act 2009 (Qld), ss 314, 324, 326, 345, 461, 493, 495

SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24

Walker v Western Downs Regional Council [2015] QPELR 795

Waverley Road Developments Pty Ltd v Gold Coast City Council (2011) 187 LGERA 352

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

Zappala Family Management Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

COUNSEL:

D Favell for the Appellant

J Dillon for the Respondent

SOLICITORS:

Colwell Wright Solicitors for the Appellant

Moreton Bay Regional Council Legal Services division for the Respondent

Introduction

Mr Brian Wust is the owner of land at 165 and 169 Caboolture River Road in Morayfield (Lots 16 and 17 on RP 136494). In January 2016 Mr Wust lodged with the Council an application for approval for a material change of use of the land, for the purposes of a multiple dwelling residential development. The Council did not determine the application within the requisite time period, and Mr Wust, by this proceeding, has appealed against the Council’s deemed refusal of that application. The Council agrees that the appeal should be allowed, and a development permit granted, however there was dispute between the parties in relation to some of the conditions which the Council says should apply to the development.
There has been considerable agreement reached between the parties, reflected in the “schedule of agreed amendments to conditions” (exhibit 9), leaving only two issues to be determined by the court, concerning:
(a)the orientation of the units (or houses) at the front of the complex; and
(b)whether pedestrian connections ought to be provided at the back of the complex.

The proposed development, the land and the surrounding area

The land has frontage to both Caboolture River Road and a smaller road which runs parallel to that road, Cox Drive. As proposed, both vehicle and pedestrian access to…

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.

Continue reading Wust v Moreton Bay Regional Council

Details

AGLC: Wust v Moreton Bay Regional Council [2017] QPEC 27
Case: [2017] QPEC 27
Decision Date: 25 May 2017

CaseChat Overview and Summary

In Wust v Moreton Bay Regional Council, the applicant sought a development permit for a multiple dwelling project in Morayfield. The applicant contested certain conditions imposed by the council, specifically those relating to the orientation of two units and the necessity of a pedestrian connection to a second street. The case was heard in the Queensland Land Court, which was tasked with determining the validity of these conditions under the Development Act 2017.

The primary legal issues revolved around whether the contested conditions were necessary to prevent conflicts with relevant planning schemes. The court examined whether the conditions were relevant and reasonably required, considering factors such as the alignment of the units, the provision of pedestrian access, and the overall impact on the surrounding area. The applicant argued that the conditions imposed were not necessary for the development's approval and did not align with the planning objectives, while the council maintained that the conditions were essential for maintaining the character and functionality of the area.

The court concluded that the conditions were not required as they did not align with the purpose of the Development Act 2017. The conditions concerning the orientation of the units and the pedestrian connection did not sufficiently address any planning conflict or provide a clear benefit to the community. Therefore, the appeal was allowed, and the contested conditions were deemed unnecessary. The court directed the parties to prepare and provide appropriate orders to reflect the agreement in exhibit 9 and the court's decision regarding the conditions. The matter of costs will be heard separately.

Orders

Orders of the court

The appeal is allowed.

The disputed conditions 2(a)(i) to (v) and 37 are not required to be included in the development permit.

The parties are to prepare and provide to the court appropriate orders, reflecting the agreement of the parties in exhibit 9, and the decision of the court in relation to the disputed conditions.

I will hear the parties in relation to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Wust v Moreton Bay Regional Council [2017] QPEC 27
PARTIES:	BRIAN GERARD WUST (Appellant) v MORETON BAY REGIONAL COUNCIL (Respondent)
FILE NO/S:	3883/16
PROCEEDING:	Appeal
DELIVERED ON:	25 May 2017
DELIVERED AT:	Bundaberg
HEARING DATE:	19 and 20 April 2017, at Brisbane
JUDGE:	Bowskill QC DCJ
ORDER:	The appeal is allowed. The disputed conditions 2(a)(i) to (v) and 37 are not required to be included in the development permit. The parties are to prepare and provide to the court appropriate orders, reflecting the agreement of the parties in exhibit 9, and the decision of the court in relation to the disputed conditions. I will hear the parties in relation to costs.
CATCHWORDS:	ENVIRONMENT AND PLANNING – DEVELOPMENT APPLICATION – CONDITIONS APPEAL – proposed multiple dwelling development at Morayfield – disputed conditions concerning orientation of two of the units comprising the development, and whether provision of pedestrian connection to second street frontage required – whether conditions required in order to prevent conflict with the relevant planning schemes – whether the conditions are relevant and reasonably required Sustainable Planning Act 2009 (Qld), ss 314, 324, 326, 345, 461, 493, 495 SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 Walker v Western Downs Regional Council [2015] QPELR 795 Waverley Road Developments Pty Ltd v Gold Coast City Council (2011) 187 LGERA 352 Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 Zappala Family Management Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
COUNSEL:	D Favell for the Appellant J Dillon for the Respondent
SOLICITORS:	Colwell Wright Solicitors for the Appellant Moreton Bay Regional Council Legal Services division for the Respondent