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Harris V Scenic Rim Regional Council [2014]

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Harris V Scenic Rim Regional Council [2014] PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Harris v Scenic Rim Regional Council [2014] QPEC 16 PARTIES: BRIAN HARRIS and WENDY HARRIS T/A SCENIC RIM ADVENTURE PARK (appellants) v SCENIC RIM REGIONAL COUNCIL (respondent) and ANTHONY ROBERT HALPIN (first co-respondent by election) and DAVID PETER BARBAGALLO (second co-respondent by election) FILE NO/S: 2292 of 2013 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 11 April 2014 DELIVERED AT: Brisbane HEARING DATE: 31 March 2014, 1-4 April 2014 JUDGE: Preston A/DCJ ORDER: 1. Adjourn the hearing of the appeal to 10.00am on 29 April 2014. 2. Direct the parties to file agreed conditions of approval or, failing agreement, to file their competing versions of the conditions of approval, by 24 April 2014. CATCHWORDS: PLANNING AND ENVIRONMENT – Applicant appeal against refusal of development application for development permit – material change of use – use for outdoor sports, recreation and entertainment and use for camping ground – traffic generated by uses – proposed limits on customer 2 vehicle numbers – access by single lane rural road with creek crossings – proposed works to upgrade road at crossings and improve signage – whether adverse impacts by traffic on road safety and amenity of neighbours – intersection of access road and State controlled highway – whether adverse impacts on road safety by right turn from highway to access road – finality, certainty and enforceability of conditions of approval – whether decision to approve would conflict with planning scheme – whether sufficient grounds to justify a decision to approve despite the conflict Environmental Protection Act 1994 (Qld) s 115 Sustainable Planning Act 2009 (Qld) ss 10, 260, 261, 267(2), 272, 285, 287, 291, 292, 314, 324, 326, 335, 342(3), 345, 346, 347, 350, 395(2)(b), 461, 464, 481(1), 482, 485(4), 493, 495, 496, 578, 582, 588, 590, 760, Ch 6, Pt 4, Div 2, Dictionary Sch 3 Transport Infrastructure Act 1994 (Qld) Beaudesert Shire Planning Scheme 2007 Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 324 Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 Bell v Noosa Shire Council [1983] QPLR 311 Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228 Broad v Brisbane City Council (1986) 2 Qd R 317 Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52 Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210 Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; (1984) 54 LGRA 110 Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 Crane v Brisbane City Council [2004] QPELR 1 Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 385 Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15 Gillott v Hornsby Shire Council (1965) 10 LGRA 285 Gorman v Brisbane City Council [2004] QPELR 29 GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 Grant v Pine Rivers Shire Council [2006] QPELR 112 Heilbronn and Partners v Gold Coast City Council [2005] 3 QPELR 386 Heritage Properties Commercial Pty Ltd v Maroochy Shire Council [1999] QPELR 108 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184 Larsen v Green & Caboolture Shire Council [1980] QPLR 64 Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 Lockyer Valley Regional Council v Westlink Pty Ltd (No 3) [2013] 2 Qd R 302; (2012) 191 LGERA 452 Macquarie Leisure Operations Limited v Gold Coast City Council [2007] QPELR 418 McBain v Clifton Shire Council [1996] 2 Qd R 493 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd [2010] NSWLEC 48 Novak v Woodville City Corporation (1990) 70 LGRA 233 Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474 Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; (2004) 137 LGERA 232 Proctor v Brisbane City Council (1993) 81 LGERA 398 Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347 Scott v Wollongong City Council (1992) 75 LGRA 112 Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191 Simmons v Esk Shire Council [2006] QPELR 570 Studio Tekton Pty Ltd v Redland Shire Council [2007] QPELR 174 Television Corporation Ltd v The Commonwealth of Australia (1963) 109 CLR 59 Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10 Transport Action Group Against Motorways Inc v Roads & Traffic Authority (1999) 46 NSWLR 598; (1999) 104 LGERA 133 Ulan Coal Mines Ltd v Minister for Planning (2008) 160 4 LGERA 20 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA Trans 367 (1 August 2007) Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 COUNSEL: M Batty for appellants S M Ure and N Loos for respondent SOLICITORS: OMB Solicitors for appellants Corrs Chambers Westgarth for respondent Mr A R Halpin (self-represented) for first co-respondent by election Mr D P Barbagallo (self-represented) for second co- respondent by election Nature of appeal and outcome [1] Mr and Mrs Harris (“Harris”) have appealed against the decision of the Scenic Rim Regional Council (“the Council”) refusing Harris’ development application for a development permit for a material change of use for outdoor sports, recreation and entertainment (adventure and four wheel drive park) and camping ground of land at Innisplain, about 33 kilometres south of Beaudesert. [2] Prior to the hearing of the appeal, Harris changed the development application on which the Council’s decision was made, to reduce the intensity and scale of the proposed use. That change was only a minor change. [3] Harris bore the onus of establishing that the appeal should be upheld. [4] For most of the hearing of the appeal, the Council continued to defend its refusal, notwithstanding the ameliorative change to the development application. The Council contended the changed application should be refused on traffic engineering and town planning grounds. The Council contended that the changed application was still in conflict with certain provisions of the relevant planning scheme and that 5 the grounds advanced by Harris were not sufficient grounds to justify a decision to grant a development permit despite the conflict. However, near the end of the hearing, Harris and the Council agreed on further changes to the operation of the proposed development, including a reduction in the number of vehicles visiting the land. Thereafter, the Council no longer contended that the changed application should be refused or was in conflict with the relevant planning scheme. [5] Two persons who made a properly made submission about Harris’ development application, Mr Halpin and Mr Barbagallo, elected to be joined as co-respondents to the appeal. They also contended that the appeal should be dismissed, primarily on traffic engineering and town planning grounds. After Harris and the Council agreed on the changes to the operation of the proposed development, Mr Barbagallo also changed his position to no longer oppose the grant of approval to the changed application. Mr Halpin, however, continued to contend that the changed application should be refused and was in conflict with the relevant planning scheme. [6] I have determined that Harris has discharged the onus and the Council’s decision to refuse the development application should be set aside and instead a decision approving the development application on conditions should be made. The application for a material change of use [7] Mr and Mrs Harris own land at 636 Tamrookum Creek Road, Innisplain, which is formally described as Lot 41 W311658 and Lot 101 WD602 (“the land”). They wish to be able to use lawfully the land for an adventure and four wheel drive park and camping ground. After purchasing the land on 12 June 2012, Harris commenced using the land as the Scenic Rim Adventure Park. [8] The Council considered Harris’ use of the land was unlawful. The land is situated in the Rural Zone, Countryside Precinct under the Beaudesert Shire Planning Scheme 2007 (“the planning scheme”). The Assessment Table for the Rural Zone in the planning scheme declares a material change of use involving outdoor sports, recreation and entertainment or camping ground to be impact-assessable development. The Council considered that Harris’ use for the Scenic Rim 6 Adventure Park was for outdoor sports, recreation and entertainment purposes and camping ground purposes. As assessable development, it required a development permit under the Sustainable Planning Act 2009 (“SPA”) authorising it to take place, but no development permit had been issued. The use of the land for those purposes was, therefore, unlawful and constituted an offence against ss 578 or 582 of SPA.
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