AAD Design Pty Ltd v Brisbane City Council - [2011] QPEC 54

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54

PARTIES:

AAD DESIGN PTY LTD
(Appellant)

V

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

3169/2010

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

6 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2011

JUDGE:

R Jones DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

PLANNING LAW – Construction of definition of house, multi-unit development and single unit development under Brisbane City Plan 2000 (as amended) – student accommodation involving multiple bedrooms and common facilities – student accommodation where students enter into tenancy agreement – whether student accommodation falls within the definition of house or multi-unit development under the Brisbane City Plan 2000 (as amended)

Chiefari v Brisbane City Council (2005) QPEC 9

Collector of Customs v AGFA – Gevaert Ltd (1995-96) 186 CLR 389

Delfin GC Pty Ltd v Gold City Council (2006) QPEC 4

Friends of Currumbin Association Inc v Gold Coast City Council & Anor (2006) QPELR 656

Livingstone Shire Council v Brian Hooper & M3 Architecture & Ors (2004) QPELR 307

Noosa Shire Council v Staley (2002) QPEC 18

Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2010] QCA 379

Re BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs (2002) 69 ALD 453

Re LDCM Investments Ltd v Town of Newcastle (1975) 8 OR (2d) 504

Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337

Yu and Leung v Brisbane City Council & Anor (2006) QPELR 102

ZW Pty Ltd v Peter Hughes & Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

Mr R. Litster SC with Mr N. Loos for the appellant

Mr Hinson SC with Mr J. Lyons for the respondent

SOLICITORS:

N.R. Barbi Solicitor Pty Ltd for the appellant

Brisbane City Legal Practice for the respondent

These proceedings are concerned with three appeals from the Building and Development Dispute Resolution Committee (the Committee). The decisions of the Committee under appeal are that it found each of the three proposed premises in dispute to be “Multi-unit dwelling” and not a “House” under the respondent’s Brisbane City Plan 2000 (as amended).

It was agreed between the parties that in the hearing of these appeals they could be dealt with by reference to the material relevant to any one of the applications without having to consider each separately. That is so because of the degree of commonality between the facts and circumstances underlying each application. In the event that one of the appeals was successful then, as a matter of course, success would follow in respect of the other two appeals. Of course, the opposite follows in the event of an unsuccessful appeal. Although three separate decisions of the Committee are involved, each is dealt with in the one notice of appeal.

Background

The appellant made three separate development applications to the respondent in respect of land located at 17 Wilkins Street, Annerley, 32 O’Keefe Street, Woolloongabba,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AAD Design Pty Ltd v Brisbane City Council

Details

AGLC: AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54
Case: [2011] QPEC 54
Decision Date: 6 April 2011

CaseChat Overview and Summary

In the case of AAD Design Pty Ltd versus Brisbane City Council, the primary issue was the interpretation of the definitions of "house," "multi-unit development," and "single unit development" as outlined in the Brisbane City Plan 2000, as amended. The appellant, AAD Design Pty Ltd, sought to construct student accommodation that included multiple bedrooms and shared facilities, and they argued that their proposed development should be classified as a "single unit development." Conversely, the Brisbane City Council maintained that the project constituted a "multi-unit development," which would require a development application rather than a planning certificate.

The central legal questions revolved around whether the proposed student accommodation should be classified as a "house," a "multi-unit development," or a "single unit development" under the Brisbane City Plan 2000, as amended. The court was tasked with interpreting the statutory definitions provided in the planning scheme and determining the appropriate classification for the appellant's project based on these definitions.

The court held that the key to resolving the dispute lay in the interpretation of the definitions provided within the planning scheme. The court found that the proposed student accommodation, which involved multiple students entering into a tenancy agreement and sharing common facilities, did not fit the statutory definition of a "house" or a "single unit development." Instead, the court concluded that the student accommodation constituted a "multi-unit development," as it involved multiple occupants sharing common facilities and entering into a tenancy agreement. Consequently, the court dismissed the appeal, affirming the Brisbane City Council's classification of the project as a "multi-unit development." The court's decision was grounded in the statutory definitions provided in the planning scheme, and the court found that the appellant's proposed development did not align with the definition of a "house" or a "single unit development."

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	AAD Design Pty Ltd v Brisbane City Council [2011] QPEC 54
PARTIES:	AAD DESIGN PTY LTD (Appellant) V BRISBANE CITY COUNCIL (Respondent)
FILE NO/S:	3169/2010
PROCEEDING:	Hearing of an appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	6 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2011
JUDGE:	R Jones DCJ
ORDER:	Appeal dismissed.
CATCHWORDS:	PLANNING LAW – Construction of definition of house, multi-unit development and single unit development under Brisbane City Plan 2000 (as amended) – student accommodation involving multiple bedrooms and common facilities – student accommodation where students enter into tenancy agreement – whether student accommodation falls within the definition of house or multi-unit development under the Brisbane City Plan 2000 (as amended) Chiefari v Brisbane City Council (2005) QPEC 9 Collector of Customs v AGFA – Gevaert Ltd (1995-96) 186 CLR 389 Delfin GC Pty Ltd v Gold City Council (2006) QPEC 4 Friends of Currumbin Association Inc v Gold Coast City Council & Anor (2006) QPELR 656 Livingstone Shire Council v Brian Hooper & M3 Architecture & Ors (2004) QPELR 307 Noosa Shire Council v Staley (2002) QPEC 18 Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2010] QCA 379 Re BHP Billiton Petroleum Pty Ltd v Chief Executive Officer of Customs (2002) 69 ALD 453 Re LDCM Investments Ltd v Town of Newcastle (1975) 8 OR (2d) 504 Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337 Yu and Leung v Brisbane City Council & Anor (2006) QPELR 102 ZW Pty Ltd v Peter Hughes & Partners Pty Ltd (1992) 1 Qd R 352
COUNSEL:	Mr R. Litster SC with Mr N. Loos for the appellant Mr Hinson SC with Mr J. Lyons for the respondent
SOLICITORS:	N.R. Barbi Solicitor Pty Ltd for the appellant Brisbane City Legal Practice for the respondent