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(Morzone QC DCJ - 6 August 2015)
Savage & Savage Resorts Pty Ltd as trustee v Cairns Regional Council  QPEC 37
Planning and environment – application – declaratory and consequential relief pursuant to s 456 Sustainable Planning Act 2009 (Qld) – characterisation of use approved by the original development approval and whether modified – whether applications for a material change of use to “Multiple Dwelling/Holiday Accommodation” code assessable or impact assessable – whether applications properly made in the absence of body corporate consent – whether applications properly assessed.
Facts: This was an application about the lawfulness of the use of 24 of the total 39 units in a strata titled unit complex in Cairns.
The applicants disputed two decisions made by the Cairns Regional Council to grant development approvals in favour of unit owners for a material change of use of their 24 units to “Holiday Accommodation” and “Multiple Dwellings”. The applications were the subject of code assessment.
The unit block contained 38 one bedroom units and one two bedroom unit. The original development permit was issued on 8 February 1994 under a 1971 planning scheme and granted approval for “Accommodation Units”. By a letter dated 22 April 1994, the developer’s architects wrote to the Council about a car parking condition imposed on the approval in the context of the proposed market of “Holiday Accommodation” as defined in the newly commenced planning scheme. The Council considered the correspondence and affirmed the minimum car parking requirement by letter dated 18 May 1994.
The applicant owned the two bedroom unit in the complex and was the director of the second applicant and was licensed to conduct a letting business in relation to the unit block.
The one bedroom units had been predominantly used for holiday accommodation, whether as part of the managed letting pool or otherwise.
The questions for determination for the court were:
The applicants asserted that the use rights granted under the 1994 consent permit for “accommodation units” were modified by the letter dated 22 April 1994 to “holiday apartments” to be used for short term accommodation by tourists and travellers.
Council said that the approved use was not so modified, limited or confined in any way to short term holiday accommodation.
In relation to the development applications, the applicants argued that the description of the proposed use as “Multiple Dwellings and Holiday Units” was an undefined use which was impact assessable.
Decision: The Court held:
(Rackemann DCJ - 21 August 2015)
WAW Developments Pty Ltd v Brisbane City Council  QPEC 38
Planning and environment – applicant appeal – regularisation of unlawful outdoor dining area into footpath – where appellant put forward a revised proposal and the council put forward an alternative proposal – urban designs and visual amenity – appropriate width and length of structure
Facts: This was an appeal against the respondent’s decision to refuse an application for a development permit for a material change of use for a restaurant.
The application was made for the purposes of regularising an unlawful extension of an existing restaurant on the ground level of a building.
The development application was made when Brisbane City Plan 2000 was in effect. Since lodging the application, the planning scheme was subsequently amended in January 2011 and then superseded by the City Plan 2014.
The key issues in the appeal related to visual amenity, conflict with the planning scheme, public uses and pedestrian and footpath use issues.
During the hearing it became clear that although there was a potential benefit in having an appropriate structure in the area, the existing structure was unacceptable. The appellants introduced a revised proposal which was still opposed by the Council (the revised proposal). The Council was not opposed to an approval subject to conditions that the structure be in accordance with an alternative proposal prepared by its architect (the alternative proposal).
Decision: The Court held, in allowing the appeal:
(Dorney QC DCJ - 21 August 2015)
Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors (No. 2)  QPEC 39
Costs – whether exception to each party paying its owns costs established
Facts: This was an application for costs arising out of an applicant appeal against Council’s refusal of a development application for a quarry in the Mackay area.
The Court had handed down a Judgment allowing the appeal and approving the development application on 26 December 2013 (Mackay Resource Developments Pty Ltd v Mackay Regional Council & Ors  QPEC 57).
At the time the development application was lodged, the Integrated Planning Act 1997 (IPA) was in force. Therefore, the provisions of IPA applied in determining the costs application.
Under the IPA, the general rule was that each party must bear its own costs. However, the IPA gave the Court a discretion to make an order in relation to costs in certain circumstances.
The Appellant sought to rely on s 4.1.23(2)(b) of the IPA in arguing that two aspects of the Council’s case had been “frivolous or vexatious”. The first aspect was the giving of evidence in relation to the issue of amenity, including air quality, noise and vibration. The second was the giving of evidence in relation to the issue of sediment and erosion control.
The Appellant argued that Council had failed to abandon the giving of evidence on those two issues despite the agreement between the relevant experts in those fields expressed by the conclusions in their reports, and despite the reference in correspondence written to the Respondent’s solicitors on behalf of the Appellant’s solicitors drawing attention to the “agreement”.
Decision: The Court held:
(Rackemann DCJ - 31 July 2015 (delivered ex tempore))
Cuthbert v Moreton Bay Regional Council  QPEC 41
Planning and environment – practice and procedure – particulars – whether particulars required where expert reports already provided – whether appropriate for particulars to incorporate, by reference, paragraphs of expert reports
Facts: This was an application for the delivery of particulars which were originally ordered by the court to be provided on 3 July 2015. On 3 July 2015 the respondent filed and served affidavit material from consultants which it had engaged to address the issues in the proceeding. They did not however, provide the particulars in accordance with the order. Rather they asserted that, given the delivery of the affidavit material, there was now no utility in providing the particulars and sought the agreement of the appellant to vary the court order so as not to require particulars. That request was refused and the appellant continued to request particulars.
By way of letter dated 21 July 2015, the respondent attempted to provide some particulars in a way which incorporated aspects of the affidavit material by reference. The issue with this approach was that reference to parts of the affidavits were preceded by the words ‘for example’ which left the solicitors for the appellant to speculate upon whether there were any other parts of the affidavits which were relevant to the particulars. Another difficulty with the letter of 21 July 2015 was that it objected to providing particulars which the respondents had already been ordered to provide.
On the day before the hearing of this application, the respondent provided an amended version of the letter of 21 July 2015 which removed the words ‘for example’ and gave comprehensive references to those passages of the various affidavits which were incorporated by reference into the response to the request for particulars. Further details on how the affidavits addressed the request for particulars were given in court at the hearing of the application.
Decision: The Court held:
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