Auchenflower Residents Alliance Inc v. Brisbane City Council & Anor ; McDonnell v BCC

[2007] QPEC 27

[2007] QPEC 027

PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC

P & E Appeal No 714 of 2006
AUCHENFLOWER RESIDENTS ALLIANCE INC                 Appellant
and
BRISBANE CITY COUNCIL  Respondent
and
NICK KOTSOMITIS  Co-Respondent

P & E Appeal No 662 of 2006
DAMIAN THOMAS MCDONNELL  Appellant
and
BRISBANE CITY COUNCIL  Respondent
and
NICK KOTSOMITIS  Co-Respondent

BRISBANE

..DATE 07/02/2007

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.1.52 - in adverse submitter appeals against Council approval of a reconfiguration to excise part of a house block in Auchenflower to accommodate an additional dwelling the co-respondent developer proposed changes to location of the existing and new buildings, parking and footpath cross-overs and some redesign of the new house increasing its height - changes tended to alleviate concerns of the appellants who did not oppose their being declared "minor change"

HIS HONOUR:  There are two appeals before the Court against the Council's approval of a development application which permits the reconfiguration of an allotment at the corner of Munro Street and Realm Street, Auchenflower and the construction of a new residence.

There were 19 submissions received by the Council which I take it were adverse.  There may be some overlap of submissions by individuals and the submission by the appellant in Appeal 714 of 2006, the Auchenflower Residents Alliance Inc represented by Mr Sibley. 

Today he tells me he happens, like the other appellant Mr McDonnell, to be among those most affected, as a resident of the other side of the street who will have an outlook transformed.

Discussions that have taken place have led to some re-design of the proposal and this application to the Court, under Section 4.1.52 of the Integrated Planning Act 1997, to declare that the changes to the approved proposal represent a minor change so that the appeal may proceed on the basis of what is now proposed.

Mr Ure for the applicant/co-respondent developer Mr Kotsomitis says he is hopeful that if the hurdle of this being accepted by the Court as a minor change is surmounted it is likely that the appeals will be resolved by agreement.  There's no necessity for that to occur, of course.  The determination sought today simply enables the appeal to proceed and in principle the appellants may still be able to succeed on the merits.

The existing house is to be relocated by being taken a couple of metres back from the boundary of the site next door which the Court hears is vacant land and also about one metre back from Realm Street. 

One would expect those changes to be welcome from the point of view of the owner of the neighbouring site, although that's not necessarily so.  It is clear there is no existing building whose amenity or outlook stands to be prejudiced.

Another change in Realm Street is the deletion of a new cross-over to permit entry and egress of vehicles.  That facility is to be relocated more appropriately to Munro Street, where there is an existing cross-over.  Effectively there will be a joint cross-over and the streetscape in Realm Street stands to be enhanced because of new possibilities for vegetation, whereas there will be little change to that in Munro Street, from which the existing house as now proposed will continue to take its access in future.

There is some considerable relocation of the boundary proposed between the two lots to be created out of the existing one.  As Mr Ure says that boundary is no more than a line which will appear on plans.  It is difficult to see any significance in the real world flowing from it.

There are a number of changes to be made to the proposed new dwelling.  The car parking is to be relocated and effectively aggregated with that for the existing house.  There is to be a new undercroft which on Mr Dang's evidence will be effectively invisible, away from the site. 

The proposed skillion roof is to be replaced by a more traditional gabled roof.  There will be increases in height of the order of 10 centimetres and some exceedence of the 8.5 metre limit.  The only evidence is that that increase in height will be undetectable.  That is the evidence the Court acts on in this application. 

Of course it creates no kind of estoppel against the appellants if the appeals, or either of them, should proceed.  Their attitude today is to support the application so far as the Association is concerned and to offer no opposition so far as Ms McDonnell is concerned.

While the situation might be approached with a considerable amount of focus on the relocation, redesign and, from some points of view, enlargement of what is proposed, I think the Court ought to take a realistic and practical approach. 

Changes like those encountered here which are proposed to mollify adverse submitters and will have that effect should not necessarily be approached with the same philosophy as is appropriate where there are changes proposed to large commercial or industrial developments or large subdivisions. 

It is an everyday kind of enterprise to construct a new residence on a site which becomes available for one.  The Court ought not to go out of its way to make things more difficult for someone like Mr Ure's client who has been successful to this point with his development application and is now essentially seeking to alleviate concerns that his future neighbours have. 

For a recent statement of the test in determining whether the change is minor, Mr Ure refers me to Grant v Pine Rivers Shire Council 2005 QPEC81 at paragraph 20 where it was said that;

"The Court is required to assess whether or not the application will result in a materially different proposal but will consider that question broadly and fairly.  An important question is whether the change would be likely to attract an adverse submission that was not provoked by the proposal in its original form.  All of those questions are to be considered from the point of view of ordinary members of the community to whom the right of objection extends."

I am comfortably satisfied that the determination sought by Mr Ure's client is appropriate and in those circumstances in each of the appeals make an order in terms of the initialled draft.

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