Zanow v Ipswich City Council - [2010] QPEC 50

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Zanow v Ipswich City Council & Anor [2010] QPEC 50

PARTIES:

DARREN ZANOW AND BRADLEY ZANOW
(appellants)
v
IPSWICH CITY COUNCIL
(respondent)
and
CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(co-respondent by election)

FILE NO:

P & E Appeal 1500 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal against refusal of development application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

22 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

11-14 May 2010

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Developer appeal against refusal of development permit for material change of use (MCU) for light industrial purposes – site zoned low density residential and located on perimeter of precinct adjacent to Warrego Highway, devoted to similar uses by Telecom/Telstra since 1980 (uses which ceased lately) – appellants (new owners) in 2003 obtained approval for similar MCU permits approving actual development on part of site and a preliminary approval overriding the planning scheme for the whole of it – approved plan of development established a regime requiring impact assessment for further light industrial development now applied for – 2006 planning scheme perpetuated low density residential zoning – whether 2003 approval meant no conflict arose with the planning scheme – whether sufficient grounds to justify approval notwithstanding conflict – need – whether site suitable for residential use given industrial use of western part and proximity of highway – traffic and amenity issues – expectations in 2003 and a subsequent approval that heavy site-related traffic would be quarantined to a short stretch of the road/street from which access was taken (direct entry to highway being forbidden) belied by events, leading to unintended traffic through a residential area – whether the access (of a battleaxe variety) was adequate preponderance of local opinion favouring light industrial development over residential.

Integrated Planning Act 1997 s 3.1.6, s 3.5.5(2)(d), s 3.5.14(2)(a), s 3.5.14(2)(b), s 3.5.14A, s 3.5.14A(2)(a), s 3.5.31(1)(a)

Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, cited
Clark v Cook Shire Council [2007] QCA 139; 152 LGERA 420, considered
Edray Homes Pty Ltd Superannuation Fund v Ipswich City Council [1990] QPLR 237, considered
Fraser v Beaudesert Shire Council [2008] QPELR 548; [2008] QPEC 21, cited
Grosser v Gold Coast City Council [2001] QCA 423; 117 LGERA 153, applied
K C Drew Pty Ltd v Brisbane City Council [1990] QPLR 232, considered
Koerner v Maroochy Shire Council [2004] QPELR 211; [2003] QPEC 54, considered
Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191; [2000] QPEC 95, cited
Tadpoles Early Learning Centre v Noosa Shire Council [2008] QPEC 9, considered
Tourism Investments Pty Ltd v Brisbane City Council [1988] QPLR 197, considered

Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; [2005] QCA 262, considered

COUNSEL:

J Houston for the appellant
M Hinson SC for the respondent
R Duhig for the co-respondent by election (granted leave to withdraw from the proceedings)

SOLICITORS:

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: [2010] QPEC 50
Decision Date: 22 June 2010

CaseChat Overview and Summary

In Zanow v Ipswich City Council, the developer sought to appeal the refusal of a development permit for a material change of use (MCU) for light industrial purposes on a site currently zoned for low-density residential use. The site is located on the perimeter of a precinct adjacent to Warrego Highway, and has been used for similar light industrial purposes by Telecom/Telstra since 1980, although these uses have ceased more recently. The appellants, who became the new owners in 2003, obtained approval for similar MCU permits for part of the site and a preliminary approval overriding the planning scheme for the whole of it. However, a 2006 planning scheme perpetuated the low-density residential zoning, leading to the refusal of the current development permit application.

The court had to determine whether the 2003 approval meant that no conflict arose with the planning scheme, and whether there were sufficient grounds to justify the approval notwithstanding the conflict. The court also had to consider whether the site was suitable for residential use given the industrial use of the western part of the site and its proximity to the highway, as well as traffic and amenity issues. Additionally, the court had to consider whether the expectations in 2003 and a subsequent approval that heavy site-related traffic would be quarantined to a short stretch of the road/street from which access was taken (direct entry to the highway being forbidden) were belied by events, leading to unintended traffic through a residential area.

The court found that the 2003 approval did not mean that no conflict arose with the planning scheme, and that there were not sufficient grounds to justify the approval notwithstanding the conflict. The court also found that the site was not suitable for residential use given the industrial use of the western part of the site and its proximity to the highway, as well as traffic and amenity issues. The court found that the expectations in 2003 and a subsequent approval that heavy site-related traffic would be quarantined to a short stretch of the road/street from which access was taken (direct entry to the highway being forbidden) were belied by events, leading to unintended traffic through a residential area. The court also found that the access (of a battleaxe variety) was not adequate and that the preponderance of local opinion favoured light industrial development over residential use. Therefore, the appeal was dismissed.

The court dismissed the appeal and upheld the decision of the Ipswich City Council to refuse the development permit for the MCU of the site for light industrial purposes. The court found that the site was not suitable for residential use and that the appellants had not provided sufficient grounds to justify the approval notwithstanding the conflict with the planning scheme. The court also found that the expectations in 2003 and a subsequent approval that heavy site-related traffic would be quarantined to a short stretch of the road/street from which access was taken (direct entry to the highway being forbidden) were belied by events, leading to unintended traffic through a residential area. The court also found that the access (of a battleaxe variety) was not adequate and that the preponderance of local opinion favoured light industrial development over residential use.

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:	Zanow v Ipswich City Council & Anor [2010] QPEC 50
PARTIES:	DARREN ZANOW AND BRADLEY ZANOW (appellants) v IPSWICH CITY COUNCIL (respondent) and CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS (co-respondent by election)
FILE NO:	P & E Appeal 1500 of 2009
DIVISION:	Appellate
PROCEEDING:	Appeal against refusal of development application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	22 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	11-14 May 2010
JUDGE:	Robin QC DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	Developer appeal against refusal of development permit for material change of use (MCU) for light industrial purposes – site zoned low density residential and located on perimeter of precinct adjacent to Warrego Highway, devoted to similar uses by Telecom/Telstra since 1980 (uses which ceased lately) – appellants (new owners) in 2003 obtained approval for similar MCU permits approving actual development on part of site and a preliminary approval overriding the planning scheme for the whole of it – approved plan of development established a regime requiring impact assessment for further light industrial development now applied for – 2006 planning scheme perpetuated low density residential zoning – whether 2003 approval meant no conflict arose with the planning scheme – whether sufficient grounds to justify approval notwithstanding conflict – need – whether site suitable for residential use given industrial use of western part and proximity of highway – traffic and amenity issues – expectations in 2003 and a subsequent approval that heavy site-related traffic would be quarantined to a short stretch of the road/street from which access was taken (direct entry to highway being forbidden) belied by events, leading to unintended traffic through a residential area – whether the access (of a battleaxe variety) was adequate preponderance of local opinion favouring light industrial development over residential. Integrated Planning Act 1997 s 3.1.6, s 3.5.5(2)(d), s 3.5.14(2)(a), s 3.5.14(2)(b), s 3.5.14A, s 3.5.14A(2)(a), s 3.5.31(1)(a) Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, cited Clark v Cook Shire Council [2007] QCA 139; 152 LGERA 420, considered Edray Homes Pty Ltd Superannuation Fund v Ipswich City Council [1990] QPLR 237, considered Fraser v Beaudesert Shire Council [2008] QPELR 548; [2008] QPEC 21, cited Grosser v Gold Coast City Council [2001] QCA 423; 117 LGERA 153, applied K C Drew Pty Ltd v Brisbane City Council [1990] QPLR 232, considered Koerner v Maroochy Shire Council [2004] QPELR 211; [2003] QPEC 54, considered Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191; [2000] QPEC 95, cited Tadpoles Early Learning Centre v Noosa Shire Council [2008] QPEC 9, considered Tourism Investments Pty Ltd v Brisbane City Council [1988] QPLR 197, considered Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; [2005] QCA 262, considered
COUNSEL:	J Houston for the appellant M Hinson SC for the respondent R Duhig for the co-respondent by election (granted leave to withdraw from the proceedings)
SOLICITORS: