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Abeleda v Brisbane City Council

Abeleda v Brisbane City Council

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Case Copied 20 November 2020 65 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257

PARTIES:

PATRICIA ABELEDA
(first applicant)
HERSTON DEVELOPMENT COMPANY PTY LTD
ACN 617 139 009
(second applicant)
v
BRISBANE CITY COUNCIL
(first respondent)
SILVERSTONE DEVELOPMENTS PTY LTD
ACN 159 139 947
(second respondent)

FILE NO/S:

Appeal No 14234 of 2019
P & E No 3718 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court at Brisbane – [2019] QPEC 58 (R S Jones DCJ)

DELIVERED ON:

20 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2020

JUDGES:

Mullins JA and Brown and Wilson JJ

ORDER:

Application for leave to appeal refused with costs.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park near the hospital which was impact assessable – where the planning scheme required development on the subject site to “support non-residential uses that have a close nexus” with the hospital – where the primary judge found that while the proposed car park had a close nexus with the hospital, it would not support a non-residential use that had a close nexus with the hospital – where the primary judge held that there was non-compliance with the planning scheme – where the primary judge took into account that the car park had a close nexus with the hospital – where the primary judge concluded in respect of the decision under s 60(3) of the Planning Act 2016 (Qld) that the balance of factors favoured the approval of the application despite non-compliance with the planning scheme – whether an aspect of non-compliance with the planning scheme can be taken into account as a relevant matter under s 45(5)(b) of the Planning Act 2016 (Qld) in the assessment of the development application

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park on a site near the hospital which was impact assessable – where the relevant Acceptable Outcome under the planning scheme set a limit of three storeys or 10.5m in height for the site – where the height of the proposed development was six storeys and 19.25m – where the primary judge found that a car park of six storeys was not beyond community expectations which therefore complied with the Performance Outcome to which the Acceptable Outcome corresponded – where the primary judge found that there was an economic need and community need for the car park – whether, after accepting that the car park was not beyond community expectations and there was need for the car park, the primary judge had to consider if there was a need…

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: [2020] QCA 257
Decision Date: 20 November 2020

CaseChat Overview and Summary

Abeleda and other applicants sought leave to appeal a decision of the Land Court of Queensland, which approved a development application lodged by a developer to construct a car park near a major public hospital. The applicants operated car parks in the vicinity of the hospital and argued that the proposed development was inconsistent with the planning scheme, would not support a non-residential use with a close nexus to the hospital, and would not meet the community expectations. The developer argued that the proposed car park would support a non-residential use with a close nexus to the hospital and that there was an economic and community need for the car park.

The legal issues before the court were whether an aspect of non-compliance with the planning scheme could be taken into account in the assessment of the development application, whether the primary judge had to consider the need for the proposed development at the specific site, and whether the expectations of the applicants as "significant stakeholders" should have been taken into account when assessing community expectations. The court found that the primary judge did not err in law in approving the development application. The court found that the primary judge had considered all relevant matters, including the non-compliance with the planning scheme, and had balanced the outcome of the assessment with all relevant matters. The court also found that the primary judge had considered the need for the proposed development at the specific site and had taken into account the economic and community need for the car park.

The court concluded that the applicants had not succeeded in showing there was an error of law made by the primary judge. The court refused the application for leave to appeal and ordered that costs be paid by the applicants.

This decision highlights the importance of considering all relevant matters when assessing a development application and that non-compliance with the planning scheme can be taken into account in the assessment. The court also found that the primary judge had considered the need for the proposed development at the specific site and had taken into account the economic and community need for the car park. This decision will be of interest to developers, local councils, and stakeholders involved in development applications near public hospitals.

Orders

Orders of the court

Application for leave to appeal refused with costs.

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

The hospital visitor scenario was a relatively minor aspect of the evidence that was dealt with by the primary judge at [66] and [69]-[73] of the reasons, when dealing with flooding issues. In view of the manner in which the applicants conducted their case before the primary judge, I am not persuaded that the issue raised by the hospital visitor scenario was required to be dealt with by the primary judge as an adverse amenity point. This proposed ground of appeal cannot succeed.Ground 6 – the unreasonable decision point The applicants rely on the acceptance by the primary judge that the proposed development did involve some negative impacts or other difficulties associated with traffic, flooding and qualitative aspects of need and did not specifically address the fact the proposal was not consistent with provisions of the planning scheme, the Brisbane Industrial Strategy 2019, the main purpose of the Economic Development Act 2012 and the purposes of the Act to submit that the primary judge’s decision “lacks an evident and intelligible justification” in the sense of Wednesbury unreasonableness. The problem for the applicants is that, to the extent necessary, the primary judge did, in fact, deal with these issues. Neither the non-statutory Brisbane Industrial Strategy 2019 nor the Economic Development Act 2012 contains assessment benchmarks for the proposed development. To the extent that the Economic Development Act 2012 was the authority for the establishment of the Herston Quarter PDA, the existence of the PDA and provision for car parking within the PDA was considered by the primary judge in dealing with the issues, where appropriate, and the primary judge was, in fact, satisfied (at [89] of the reasons) that the proposed development would not put at risk, to any material extent, the viability of the development in the PDA. After assessing the proposed development against the assessment benchmarks and balancing the outcome of that assessment with all relevant matters, the primary judge found in favour of approving the development application. Rolling up the issues relied on by the applicants into a Wednesbury unreasonableness claim does not give those issues greater validity.Ground 7 – the inadequate reasons point The assertion of inadequate reasons is a catch-all ground that brings together the various respects in which the applicants contend the reasons the primary judge were inadequate that are otherwise dealt with under the other grounds of appeal. This separate ground adds nothing to the other grounds of appeal disposed of by these reasons.Order The applicants have not succeeded in showing there was an error of law made by the primary judge on any of the proposed grounds. The order which should be made is:Application for leave to appeal refused with costs. BROWN J: I agree with the reasons for judgment of Mullins JA and the orders proposed by her Honour. WILSON J: I also agree with the reasons of Mullins JA and the orders proposed by her Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257
PARTIES:	PATRICIA ABELEDA (first applicant) HERSTON DEVELOPMENT COMPANY PTY LTD ACN 617 139 009 (second applicant) v BRISBANE CITY COUNCIL (first respondent) SILVERSTONE DEVELOPMENTS PTY LTD ACN 159 139 947 (second respondent)
FILE NO/S:	Appeal No 14234 of 2019 P & E No 3718 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave Planning and Environment Court Act
ORIGINATING COURT:	Planning and Environment Court at Brisbane – [2019] QPEC 58 (R S Jones DCJ)
DELIVERED ON:	20 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2020
JUDGES:	Mullins JA and Brown and Wilson JJ
ORDER:	Application for leave to appeal refused with costs.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park near the hospital which was impact assessable – where the planning scheme required development on the subject site to “support non-residential uses that have a close nexus” with the hospital – where the primary judge found that while the proposed car park had a close nexus with the hospital, it would not support a non-residential use that had a close nexus with the hospital – where the primary judge held that there was non-compliance with the planning scheme – where the primary judge took into account that the car park had a close nexus with the hospital – where the primary judge concluded in respect of the decision under s 60(3) of the Planning Act 2016 (Qld) that the balance of factors favoured the approval of the application despite non-compliance with the planning scheme – whether an aspect of non-compliance with the planning scheme can be taken into account as a relevant matter under s 45(5)(b) of the Planning Act 2016 (Qld) in the assessment of the development application ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the applicants operated car parks in the vicinity of a major public hospital – where the developer proposed to develop a car park on a site near the hospital which was impact assessable – where the relevant Acceptable Outcome under the planning scheme set a limit of three storeys or 10.5m in height for the site – where the height of the proposed development was six storeys and 19.25m – where the primary judge found that a car park of six storeys was not beyond community expectations which therefore complied with the Performance Outcome to which the Acceptable Outcome corresponded – where the primary judge found that there was an economic need and community need for the car park – whether, after accepting that the car park was not beyond community expectations and there was need for the car park, the primary judge had to consider if there was a need…