48 Stuart Pty Ltd v Brisbane City Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

48 Stuart Pty Ltd v Brisbane City Council [2016] QPEC 67

PARTIES:

48 STUART PTY LTD ACN 168 958 745
ATF 48 STUART UNIT TRUST

Applicant

v

BRISBANE CITY COUNCIL

Respondent

FILE NO/S:

3705/16

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

DELIVERED ON:

22 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2016

JUDGE:

Bowskill QC DCJ

ORDER:

The application will be allowed. The proceeding will be adjourned, in order to enable the parties to prepare an appropriate form of order, and the requisite notices under s 376 of the Sustainable Planning Act 2009.

CATCHWORDS:

PLANNING AND ENVIRONMENT – development approval for a multi-unit dwelling with visitor car park spaces to remain unimpeded by gates or other structures – where the applicant requested changes to the approval in order to install garage doors – whether the proposed change constitutes a permissible change

Sustainable Planning Act 2009, ss 367, 369, 374 and 375

Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409

Harris v Scenic Rim Regional Council [2014] QPELR 324

Heilbronn & Partners Pty Ltd v Gold Coast City Council [2005] QPELR 386

Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561

Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462

Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405

Seabridge Pty Ltd & Anor v Council of the Shire of Beaudesert & Anor [2001] QPELR 191

Steendyk v Brisbane City Council & Ors [2016] QPEC 47

COUNSEL:

M Batty for the Applicant

M Osborne, solicitor, for the Respondent

SOLICITORS:

Broadley Rees Hogan for the Applicant

Brisbane City Legal Practice for the Respondent

Introduction

1. The applicant, 48 Stuart Pty Ltd, owns land at 48 Stuart Street, Bulimba, on which there is a multiple unit dwelling complex comprising six units.  The development for this complex was approved by the Council in January 2015, following impact assessment under Brisbane City Plan 2000.[1]  In March 2015, Lavina and Jeffrey James, who had made a submission objecting to the development, appealed against the Council’s decision to approve the development.  On 5 June 2015, this Court made orders in the appeal, conditionally approving the proposed development.[2] 

   [1] Affidavit of Mr Connellan, filed on 9 December 2016, at [6].

   [2]            See exhibit VAN-01 to Mr Nguyen’s affidavit, filed on 14 September 2016, at p 3 and following.

2. The applicant now wishes to make a change to the development approval, on the basis that it is a permissible change, as defined in s 367 of the Sustainable Planning Act 2009.  The change involves the installation of roller (garage) doors to all visitor and resident car park spaces in the development.   Because the development approval was ultimately granted by the Court, following the James’ appeal, it is the Court that is the responsible entity, to determine the change application.

3. Mr James had previously sought to join this proceeding, by filing a notice of election to…