Bartlett v Brisbane City Council

SUPREME COURT OF QUEENSLAND

CITATION:

Bartlett v Brisbane City Council [2003] QCA 494

PARTIES:

WILLIAM A BARTLETT and
JANETTE R BARTLETT
(applicants/respondents)
v
BRISBANE CITY COUNCIL
(respondent/appellant)

FILE NO/S:

Appeal No 2359 of 2003
P & E Appeal No 4880 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

14 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2003

JUDGES:

McPherson JA, Jones and Holmes JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed

2. The appellant pay the respondents’ costs to be assessed on an indemnity basis

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – WHEN APPLICATION DULY MADE – application to enclose the balcony of a residential unit – whether a “properly made application” as required under the Integrated Planning Act 1997 s 3.2.1(3) – whether approval by each lot holder required for valid application – whether whole complex forms a part of the ‘land the subject of the application’

Body Corporate and Community Management Act 1997 (Qld) s 35(1), s 35(3)

Integrated Planning Act 1997 (Qld), s 3.2.1(3), s 3.5.28, Schedule 10

Owners Strata Plan No. 50411 and Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5, considered

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, considered

COUNSEL:

D R Gore QC, with M E Rackemann, for the appellant
G J Gibson QC, with T N Trotter, for the respondents

SOLICITORS:

Brisbane City Legal Practice for the appellant
King and Company for the respondents

1. JA: McPHERSONI agree with the reasons of Jones J.  The appeal should be dismissed with costs, to be assessed, as agreed, on an indemnity basis.

1. JONES J: This is an appeal from a decision of the Planning and Environment Court which declared that a development application to enclose the balcony of a residential unit, was a “properly made application” fulfilling the requirements of s 3.2.1(3) of the Integrated Planning Act 1997 (“IPA”). That section provides that an application for development approval -

“ (a) must contain a mandatory requirements part including a requirement for -

(i)         an accurate description of the land, the subject of the application; and

(ii)       the written consent of the owner of the land to the making of the application; and

(b)     may contain a supporting information part.”

1. The point at issue in this appeal is a narrow one.  The appellant argues that the application was not properly made because, for an application in respect of a lot in a community title scheme, those mandatory requirements require the description of all the lands of the scheme and the written consent of all the owners.

Background facts

1. The respondents are the registered owners of Lot 28 on SP 100 001which is located in a high rise, multi-dwelling building containing some 106 units known as “Riviera II”.