Planning & Environment
Beach Club Port Douglas Pty Ltd v Douglas Shire Council [2005] QP&E Cairns 16 May 2005
Planning and Environment - Declarations – Douglas Shire Planning Scheme – meaning and calculation of gross floor area – s. 4.1.21(1)(b) Integrated Planning Act
Cairns City Council v Xontan Pty Ltd [2001] QSC 192; BC200103515
Planning and Environment - practice and procedure - Judgments – declarations – principles to be applied on evidence led by consent of parties
Carwoode Pty Ltd v Cardinia SC (2008) 31 VPR 247; [2008] VCAT 1334
Planning and Environment - EPBC Act and Tribunal jurisdiction, futility, Ministerial call-in powers, Freeway service centres, excision of lot in Farming Zone, access to land in a public acquisition overlay, Casey-Cardinia Growth Area, interpretation of Clause 52.30, rural v urban freeway, Freeway Service Centre- Design Guidelines, Growling Grass Frog, natural justice, Tribunal inspection procedures, Charter of Human Rights and Responsibilities Act 2006.
Cohen v Macefield Pty Ltd & Ors [2010] QCA 95; BC201002563
Environmental prosecution - Appeal - Magistrates – Jurisdiction And Procedure Generally – Procedure – Information And Complaint – Form And Sufficiency – Duplicity And Uncertainty – In General And Power Of Amendment – where first and second respondent charged in the same count of damaging and permitting to be damaged protected vegetation – where first and second respondent found guilty as charged – where first and second respondent agreed to the formulation of the charge – where first and second respondent suffered no unfairness in the way the matter proceeded – where first and second respondent claimed, on appeal, that the charge and convictions were duplicitous – whether an objection based on duplicity can be raised for the first time on appeal – whether the section on which the charge relied created two separate offences or one offence with several characteristics – whether applicant‘s complaint duplicitous – whether the Justices Act 1886 (Qld) operated to save the duplicitous complaint – whether the first and second respondents‘ convictions duplicitous – whether Court of Appeal should order the amendment of the convictions. Local Government – Legal Relationships And Proceedings – Procedure Relating To Legal Proceedings By And Against Councils – Authority To Prosecute Or Commence Proceedings – where first and second respondent found guilty of damaging and permitting to be damaged protected vegetation – where the Local Government Act 1993 (Qld) provided that the act of damaging protected vegetation had to occur within one year of the complaint – where damage meant the destruction of vegetation or interference with its natural growth – where no findings were made by the Magistrate that damage occurred within the limitation period – whether damage occurred within the limitation period – whether the matter should be remitted to the Magistrates Court for further hearing. Magistrates – Jurisdiction And Procedure Generally – Procedure – Orders And Convictions – Particular Orders – Orders For Costs – Costs Against Prosecutor – Informant Or Complainant – Discretion Of Court – where proceedings against the third respondent in the Magistrates Court were unsuccessful – where third respondent sought a costs order in her favour – where Magistrate found that the third respondent‘s conduct had precluded the availability of such an order – where third respondent successfully appealed this order – whether District Court judge on appeal erred in substituting a costs order in favour of the third respondent
Curtain v Eacham Shire Council [2006] QPEC Cairns 164
Planning and Environment – Reconfiguration and refusal by local council – Integrated Planning Act 1997 Qld – Eacham Shire Council Planning Scheme – conflict – sufficient planning grounds
Debray v Cohen [2008] QDC 276
Planning and Environment - Environmental offences - Appeal – Magistrates Court – prosecution by local authority – defendant successful – costs – whether defendant unreasonably declined an opportunity before charge was laid to explain defendant’s version of events – whether explanation could have avoided prosecution – whether defendant brought suspicion on herself – whether defendant should have been deprived of costs. Justices Act 1886 Sections 158(1) and 158A
Macefield Pty Ltd v Cohen [2008] QDC 275
Environmental prosecution - Appeal – Magistrates Court – prosecution by local authority – individual and corporate defendants – separate consideration of case against each required – limitation period for prosecution – within 1 year after the commission of the offence – whether evidence established offence within limitation period – duplicity – damaged or permitted damage to protected vegetation – corporate liability – power to amend complaints at summary hearing – proof of local law. Local Government Act 1993 Sections 874, 898, 1080, 1117 Justices Act 1886 Sections 43, 47, 48 , Local Law 6 (Vegetation Management) (Gold Coast City Council) Sections 3, 24, Interim Local Law 6 (Gold Coast City Council) Sections 5, 30, Statutory Instruments Act 1992 Section 7, Evidence Act 1977 Section 43
Silverpeach Pty Ltd & anor v Cairns City Council & Buchans Point Pty Ltd [2009] QPELR 306; [2008] QPEC 109
Planning and Environment– objector appeal against development approval – Douglas Shire Council Superseded Planning Scheme – conflict – whether sufficient planning grounds justified approval over objection – grounds satisfied – appeal dismissed.
Simmons v Yarra CC [2014] VCAT 15
Planning and Environment – Section 77 of the Planning and Environment Act 1987 - Yarra Planning Scheme - Mixed Use Zone - Heritage Overlay - Environmental Audit Overlay - Sale and consumption of liquor - Increase patron numbers and hours of operation - Dispersal of commercial activities from Brunswick Street; Amenity of nearby dwellings – Noise – Traffic – Parking - Public safety
Strasburger Enterprises (Properties) P/L V Gold Coast City Council [2010] QCA 153; BC201004103
Planning and Environment – Environmental Planning – Development Control – Consents, Approvals And Permits – Validity – Other Matters – where second applicant is the owner and first applicant the lessee and operator of a service station – where service station has been conducted pursuant to a Town Planning Permit issued in 1987 under the now repealed Local Government Act 1936 (Qld) – where no other permit or approval for the storage of large amounts of petroleum on the site was ever issued – where respondent sent an enforcement notice to first applicant in 2005 requiring it to apply for a development permit under the Integrated Planning Act 1997 (Qld) in order to carry out assessable development – where respondent issued a decision notice in 2007 approving first applicant’s application subject to conditions – where cost of complying with the conditions would be considerable – where applicants applied for declarations in the Planning & Environment Court against the development permit – where applicants now appeal against the dismissal of that application – whether the 1987 permit operates as a development approval for the environmentally relevant activity in the form of a development permit for the purposes of the Integrated Planning Act 1997 (Qld) and the Environmental Protection Act 1994 (Qld) – whether the primary judge misconstrued the relevant legislation – whether the operation of the service station constitutes a material change of use under s 1.3.5 of the Integrated Planning Act 1997 (Qld) and so amounts to assessable development – whether the 2007 development permit is valid. Acts Interpretation Act 1954 (Qld), s 20A Environmental Protection Act 1994 (Qld), s 40, s 624, s 624(2)(b), sch 4 Environmental Protection (Interim) Regulation 1995 (Qld), s 4.1(1), s 63 Environmental Protection Regulation 1998 (Qld), s 5, s 5(2), s 64 Integrated Planning Act 1997 (Qld), s 1.3.5(c), s 4.3.1, s 6.1.23, s 6.1.23(2), s 6.1.23(2), s 6.1.24, sch 8, sch 10 Local Government (Planning and Environment) Act 1990 (Qld), s 8.10(8)
Beach Club Port Douglas Pty Ltd v Douglas Shire Council [2005] QP&E Cairns 16 May 2005
Planning and Environment - Declarations – Douglas Shire Planning Scheme – meaning and calculation of gross floor area – s. 4.1.21(1)(b) Integrated Planning Act
Cairns City Council v Xontan Pty Ltd [2001] QSC 192; BC200103515
Planning and Environment - practice and procedure - Judgments – declarations – principles to be applied on evidence led by consent of parties
Carwoode Pty Ltd v Cardinia SC (2008) 31 VPR 247; [2008] VCAT 1334
Planning and Environment - EPBC Act and Tribunal jurisdiction, futility, Ministerial call-in powers, Freeway service centres, excision of lot in Farming Zone, access to land in a public acquisition overlay, Casey-Cardinia Growth Area, interpretation of Clause 52.30, rural v urban freeway, Freeway Service Centre- Design Guidelines, Growling Grass Frog, natural justice, Tribunal inspection procedures, Charter of Human Rights and Responsibilities Act 2006.
Cohen v Macefield Pty Ltd & Ors [2010] QCA 95; BC201002563
Environmental prosecution - Appeal - Magistrates – Jurisdiction And Procedure Generally – Procedure – Information And Complaint – Form And Sufficiency – Duplicity And Uncertainty – In General And Power Of Amendment – where first and second respondent charged in the same count of damaging and permitting to be damaged protected vegetation – where first and second respondent found guilty as charged – where first and second respondent agreed to the formulation of the charge – where first and second respondent suffered no unfairness in the way the matter proceeded – where first and second respondent claimed, on appeal, that the charge and convictions were duplicitous – whether an objection based on duplicity can be raised for the first time on appeal – whether the section on which the charge relied created two separate offences or one offence with several characteristics – whether applicant‘s complaint duplicitous – whether the Justices Act 1886 (Qld) operated to save the duplicitous complaint – whether the first and second respondents‘ convictions duplicitous – whether Court of Appeal should order the amendment of the convictions. Local Government – Legal Relationships And Proceedings – Procedure Relating To Legal Proceedings By And Against Councils – Authority To Prosecute Or Commence Proceedings – where first and second respondent found guilty of damaging and permitting to be damaged protected vegetation – where the Local Government Act 1993 (Qld) provided that the act of damaging protected vegetation had to occur within one year of the complaint – where damage meant the destruction of vegetation or interference with its natural growth – where no findings were made by the Magistrate that damage occurred within the limitation period – whether damage occurred within the limitation period – whether the matter should be remitted to the Magistrates Court for further hearing. Magistrates – Jurisdiction And Procedure Generally – Procedure – Orders And Convictions – Particular Orders – Orders For Costs – Costs Against Prosecutor – Informant Or Complainant – Discretion Of Court – where proceedings against the third respondent in the Magistrates Court were unsuccessful – where third respondent sought a costs order in her favour – where Magistrate found that the third respondent‘s conduct had precluded the availability of such an order – where third respondent successfully appealed this order – whether District Court judge on appeal erred in substituting a costs order in favour of the third respondent
Curtain v Eacham Shire Council [2006] QPEC Cairns 164
Planning and Environment – Reconfiguration and refusal by local council – Integrated Planning Act 1997 Qld – Eacham Shire Council Planning Scheme – conflict – sufficient planning grounds
Debray v Cohen [2008] QDC 276
Planning and Environment - Environmental offences - Appeal – Magistrates Court – prosecution by local authority – defendant successful – costs – whether defendant unreasonably declined an opportunity before charge was laid to explain defendant’s version of events – whether explanation could have avoided prosecution – whether defendant brought suspicion on herself – whether defendant should have been deprived of costs. Justices Act 1886 Sections 158(1) and 158A
Macefield Pty Ltd v Cohen [2008] QDC 275
Environmental prosecution - Appeal – Magistrates Court – prosecution by local authority – individual and corporate defendants – separate consideration of case against each required – limitation period for prosecution – within 1 year after the commission of the offence – whether evidence established offence within limitation period – duplicity – damaged or permitted damage to protected vegetation – corporate liability – power to amend complaints at summary hearing – proof of local law. Local Government Act 1993 Sections 874, 898, 1080, 1117 Justices Act 1886 Sections 43, 47, 48 , Local Law 6 (Vegetation Management) (Gold Coast City Council) Sections 3, 24, Interim Local Law 6 (Gold Coast City Council) Sections 5, 30, Statutory Instruments Act 1992 Section 7, Evidence Act 1977 Section 43
Silverpeach Pty Ltd & anor v Cairns City Council & Buchans Point Pty Ltd [2009] QPELR 306; [2008] QPEC 109
Planning and Environment– objector appeal against development approval – Douglas Shire Council Superseded Planning Scheme – conflict – whether sufficient planning grounds justified approval over objection – grounds satisfied – appeal dismissed.
Simmons v Yarra CC [2014] VCAT 15
Planning and Environment – Section 77 of the Planning and Environment Act 1987 - Yarra Planning Scheme - Mixed Use Zone - Heritage Overlay - Environmental Audit Overlay - Sale and consumption of liquor - Increase patron numbers and hours of operation - Dispersal of commercial activities from Brunswick Street; Amenity of nearby dwellings – Noise – Traffic – Parking - Public safety
Strasburger Enterprises (Properties) P/L V Gold Coast City Council [2010] QCA 153; BC201004103
Planning and Environment – Environmental Planning – Development Control – Consents, Approvals And Permits – Validity – Other Matters – where second applicant is the owner and first applicant the lessee and operator of a service station – where service station has been conducted pursuant to a Town Planning Permit issued in 1987 under the now repealed Local Government Act 1936 (Qld) – where no other permit or approval for the storage of large amounts of petroleum on the site was ever issued – where respondent sent an enforcement notice to first applicant in 2005 requiring it to apply for a development permit under the Integrated Planning Act 1997 (Qld) in order to carry out assessable development – where respondent issued a decision notice in 2007 approving first applicant’s application subject to conditions – where cost of complying with the conditions would be considerable – where applicants applied for declarations in the Planning & Environment Court against the development permit – where applicants now appeal against the dismissal of that application – whether the 1987 permit operates as a development approval for the environmentally relevant activity in the form of a development permit for the purposes of the Integrated Planning Act 1997 (Qld) and the Environmental Protection Act 1994 (Qld) – whether the primary judge misconstrued the relevant legislation – whether the operation of the service station constitutes a material change of use under s 1.3.5 of the Integrated Planning Act 1997 (Qld) and so amounts to assessable development – whether the 2007 development permit is valid. Acts Interpretation Act 1954 (Qld), s 20A Environmental Protection Act 1994 (Qld), s 40, s 624, s 624(2)(b), sch 4 Environmental Protection (Interim) Regulation 1995 (Qld), s 4.1(1), s 63 Environmental Protection Regulation 1998 (Qld), s 5, s 5(2), s 64 Integrated Planning Act 1997 (Qld), s 1.3.5(c), s 4.3.1, s 6.1.23, s 6.1.23(2), s 6.1.23(2), s 6.1.24, sch 8, sch 10 Local Government (Planning and Environment) Act 1990 (Qld), s 8.10(8)
