Abeleda v Brisbane City Council - [2019] QPEC 58

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Abeleda & Anor v Brisbane City Council & Anor [2019] QPEC 58

PARTIES:

PATRICIA ABELEDA
(first appellant)

and

HERSTON DEVELOPMENT COMPANY PTY LTD
(ACN 617 139 009)
(second appellant)

v

BRISBANE CITY COUNCIL
(ACN 077 382 453)
(respondent)

and

SILVERSTONE DEVELOPMENTS PTY LTD

(co-respondent)

FILE NO/S:

3718/2018

DIVISION:

Planning and Environment Court of Queensland

PROCEEDING:

Hearing of an Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, at Brisbane

DELIVERED ON:

20 November 2019

DELIVERED AT:

Brisbane

HEARING DATES:

7, 8, 9 and 10 May and 16, 17, 18 and 20 September 2019

JUDGE:

RS Jones DCJ

ORDERS:

1.The appeal is dismissed.

2.I will hear from the parties, if necessary, as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where the co-respondent submitted a development application for a multi-storey car park – where the respondent Council approved that development application – where the appellant has appealed against that approval – where the appellant contends the proposed development is non-compliant with the planning scheme – whether proposed development is non-compliant with planning scheme – whether development complies with relevant assessment benchmarks – whether the respondent Council has correctly interpreted the planning scheme in approving the development application – whether in the exercise of discretion the co-respondent’s proposed development ought be approved

FLOODING AND WATER QUALITY – where the subject site is affected by local flooding events – whether development would cause unacceptable water quality and flooding impacts – whether development adequately addresses associated risks of flooding – where risk of flash flooding with little or no warning – whether risk of flooding warrants refusal

TRAFFIC – whether development has unacceptable impacts on the local road network – whether development would result in unacceptable traffic impacts on the local road network so as to warrant refusal

DESIGN AND AMENITY – whether height of development is non-compliant with the planning scheme – whether development is appropriately designed – whether development would have an unacceptable impact on the visual amenity of the locality – whether there is community need and economic need for the development to allow for the non-compliance

NEED – where the subject land is located proximate to the Royal Brisbane & Women’s Hospital – where development likely to be used by people attending the hospital – whether there is a community need and economic need for an additional multi-storey carpark in the locality

LAND USE – where the development is non-industrial use in the Low Impact Industry Zone – whether proposed land use is non-compliant with the planning scheme – whether there is a departure from intention of the planning scheme so as to warrant refusal

ONUS OF PROOF – where co-respondent developer still bore onus of proof despite being respondent to appeal – Section 45(2) Planning and Environment Court Act 2016

Legislation
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
Sustainable Planning Act 2009 (Qld)

Cases
Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019]…

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.

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Details

Case: [2019] QPEC 58
Decision Date: 20 November 2019

CaseChat Overview and Summary

The appellant, Abeleda, has appealed against the Brisbane City Council's approval of a development application submitted by the co-respondent for a multi-storey car park. The appellant contends that the proposed development is non-compliant with the planning scheme and has a range of environmental and traffic impacts that warrant refusal. The court was required to determine if the proposed development is non-compliant with the planning scheme, whether it complies with the relevant assessment benchmarks, and whether the Council correctly interpreted the planning scheme in approving the development application. Additionally, the court had to consider whether, in the exercise of its discretion, the development should be approved.

The court found that the development application was compliant with the planning scheme, and the Council's interpretation of the scheme was correct. The court found that the development adequately addressed the associated risks of flooding, and there was a community need and economic need for the additional multi-storey car park in the locality. The court also found that the development would not result in unacceptable traffic impacts on the local road network and would not have an unacceptable impact on the visual amenity of the locality. The court held that the co-respondent still bore the onus of proof despite being the respondent to the appeal.

The appeal is dismissed. The court will hear from the parties, if necessary, as to any consequential orders.

Orders

Orders of the court

1.The appeal is dismissed.

2.I will hear from the parties, if necessary, as to any consequential orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Abeleda & Anor v Brisbane City Council & Anor [2019] QPEC 58
PARTIES:	PATRICIA ABELEDA (first appellant) and HERSTON DEVELOPMENT COMPANY PTY LTD (ACN 617 139 009) (second appellant) v BRISBANE CITY COUNCIL (ACN 077 382 453) (respondent) and SILVERSTONE DEVELOPMENTS PTY LTD (co-respondent)
FILE NO/S:	3718/2018
DIVISION:	Planning and Environment Court of Queensland
PROCEEDING:	Hearing of an Appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland, at Brisbane
DELIVERED ON:	20 November 2019
DELIVERED AT:	Brisbane
HEARING DATES:	7, 8, 9 and 10 May and 16, 17, 18 and 20 September 2019
JUDGE:	RS Jones DCJ
ORDERS:	1.The appeal is dismissed. 2.I will hear from the parties, if necessary, as to any consequential orders.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where the co-respondent submitted a development application for a multi-storey car park – where the respondent Council approved that development application – where the appellant has appealed against that approval – where the appellant contends the proposed development is non-compliant with the planning scheme – whether proposed development is non-compliant with planning scheme – whether development complies with relevant assessment benchmarks – whether the respondent Council has correctly interpreted the planning scheme in approving the development application – whether in the exercise of discretion the co-respondent’s proposed development ought be approved FLOODING AND WATER QUALITY – where the subject site is affected by local flooding events – whether development would cause unacceptable water quality and flooding impacts – whether development adequately addresses associated risks of flooding – where risk of flash flooding with little or no warning – whether risk of flooding warrants refusal TRAFFIC – whether development has unacceptable impacts on the local road network – whether development would result in unacceptable traffic impacts on the local road network so as to warrant refusal DESIGN AND AMENITY – whether height of development is non-compliant with the planning scheme – whether development is appropriately designed – whether development would have an unacceptable impact on the visual amenity of the locality – whether there is community need and economic need for the development to allow for the non-compliance NEED – where the subject land is located proximate to the Royal Brisbane & Women’s Hospital – where development likely to be used by people attending the hospital – whether there is a community need and economic need for an additional multi-storey carpark in the locality LAND USE – where the development is non-industrial use in the Low Impact Industry Zone – whether proposed land use is non-compliant with the planning scheme – whether there is a departure from intention of the planning scheme so as to warrant refusal ONUS OF PROOF – where co-respondent developer still bore onus of proof despite being respondent to appeal – Section 45(2) Planning and Environment Court Act 2016 Legislation Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) Sustainable Planning Act 2009 (Qld) Cases Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019]…