Gorrie and Anor .v Mackay City Council and Anor

[2002] QPEC 74

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gorrie & Anor .v Mackay City Council & Anor [2002] QPEC 074

GARY GORRIE & SHAKESPEARE INTERNATIONAL
Appellants
v
MACKAY CITY COUNCIL
Respondent

and

MACKAY CITY BOWLS CLUB INC.

Co-respondent

FILE NO/S:

P&E Appeal No. 3 of 2002

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Mackay

DELIVERED ON:

17 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2002

JUDGE:

Judge Quirk

ORDER:

In those circumstances I order that the appeal be dismissed

CATCHWORDS:

Maroochy Shire Council v Barns 2001 QPER 31

COUNSEL:

Mr W Cochrane, for the appellant
Mr J Houston, for the respondent
Mr R Quirk, for the co-respondent

SOLICITORS:

Barron & Allen, for the appellant
SB Wright & Wright & Condie for the respondent

Macrossan & Amiet for the co-respondent

1. This appeal was by objectors against the Council’s approval of an application by the co-respondent Bowling Club for permission to carry out certain work at the Club premises.

1. The work, details of which can be seen from the material before the Court, involved essentially the construction of solid roofing over the existing bowling green which is of an artificial surface.  Enclosure of the walls of the structure is limited to its upper level and, for the most part, its sides are open.

1. One can readily understand the advantages that could follow from the provision of such shelter having regard to Mackay’s tropical climate.  To protect bowlers from the elements and to provide shade at more hotter times of the year would obviously make participation in their sport more attractive to members and guests.

1. Council officers first thought that such work required impact assessment.  The Club accepted this view and an application was made for:

“erection of a roof covering the bowling green”.

The application was approved and this appeal, by parties who made an adverse submission in respect of the matter, was lodged.

1. On further reflection the Club has taken the view that an impact assessable application for this work was not called for and that the opportunity for the appellants to make a submission (and to appeal) did not arise.  On that basis a ruling is sought that the appeal should be dismissed.  In this the Club was supported by the Council.

1. For the purposes of deciding this point it was accepted that the determinative issue is whether the proposal amounts to a “material change of use” of the Club premises within the meaning of the Integrated Planning Act.  The term “material change of use” is defined as meaning:

“a material change in the intensity or scale of the use of the premises”.

1. The concept was usefully discussed in the recent judgment of His Honour Judge Dodds in Maroochy Shire Council v Barns 2001 QPER 31.  I agree fully with His Honour’s observations.  The question whether or not there has been a material change of use is not answered by trawling through the various definitions in the Planning Scheme.  This was done in this case and a debate was opened as to whether the proposal would lead to the Club’s activities becoming “indoor entertainment”.  The exercise was, I believe, a distraction. 

1. The real issue is whether the proposal, if put into effect, would lead to a change in the intensity or scale of the use of the premises and if so whether the change would be material.  In dealing with matters of this kind a measure of commonsense is called for.  A sensible appreciation of this case leads inescapably to the conclusion that, even if the proposed shelter is erected, essentially the use of the Club premises remains the same, that use being for lawn bowling on a green that can accommodate no more than 64 players at one time.

1. Reference was made to material submitted in support of an application to the relevant government department for funding of the proposal.  This material outlined hopes that the intended works would lead to greater patronage of the Club.  The proper interpretation of such material points to no more than some current under-utilisation of the Club premises and a hope that making lawn bowling more comfortable for patrons might well correct this.

1. Accordingly, on the evidence before me, I find that the proposal does not involve a material change of use.  That is not to say that it may need to respect controls in place in respect of the erection of structures but the relevant application is not one that provided an opportunity for adverse submission or appeal.   In those circumstances I order that the appeal be dismissed.