SUPREME COURT OF QUEENSLAND
CITATION:
Bell v Brisbane City Council & Ors [2018] QCA 84
PARTIES:
KATE PETA BELL
(applicant)
v
BRISBANE CITY COUNCIL
(first respondent)
SUNLAND DEVELOPMENTS NO 8 PTY LTD
ACN 128 607 714
(second respondent)
CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009
(third respondent)FILE NO/S:
Appeal No 6214 of 2017
P & E Appeal No 2868 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Planning and Environment Court Act
ORIGINATING COURT:
Planning and Environment Court at Brisbane – [2017] QPEC 26 (Rackemann DCJ)
DELIVERED ON:
4 May 2018
DELIVERED AT:
Brisbane
HEARING DATE:
30 November 2017
JUDGES:
Sofronoff P and Philippides and McMurdo JJA
ORDERS:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. Remit the matter to the Planning and Environment Court, to be further considered according to law.
4. The first and second respondents are to pay the applicant’s costs of and incidental to the application for leave to appeal and the appeal in this court.
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – CONSIDERATION OF PARTICULAR MATTERS – AMENITY AND COMPATIBILITY – PARTICULAR CASES – where the second respondent sought and obtained approval from the first respondent for a material change of use to develop the former Australian Broadcasting Commission site at Toowong for residential use – where the proposed development is three towers that each significantly exceed the relevant height restrictions in the applicable planning scheme – where the applicant lives on adjoining land and made a submission about the development application to the first respondent – where the applicant’s case is that the proposed development does not comply with the planning scheme – where the Planning and Environment Court concluded that there were sufficient grounds, in the public interest, to justify the decision to approve the proposed development despite the conflict with the planning scheme – whether the Planning and Environment Court’s conclusion resulted from errors of law by the judge
Integrated Planning Act 1997 (Qld), s 3.5.14
Local Government (Planning and Environment) Act 1990 (Qld), s 4.4(5A)
Planning Act 2016 (Qld), s 311
Planning and Environment Court Act 2016 (Qld), s 63, s 65, s 76
Sustainable Planning Act 2009 (Qld), s 313, s 326, s 498Bruce v Caloundra City Council [2007] QPELR 571; [2007] QPEC 46, cited
Clark v Cook Shire Council [2008] 1 Qd R 327; [2007] QCA 139, cited
Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209, considered
Grosser v City of Gold Coast (2001) 117 LGERA 153; [2001] QCA 423, cited
Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302; [2012] QCA 370, cited
Nevtan Investments Pty Ltd v Belyando Shire Council [2008] QPELR 326, cited
Palyaris v Gold Coast City Council [2004] QPELR 162; [2003] QPEC 56, cited
Prettlejohn v Cairns Regional Council [2012] QPELR 485; [2012] QPEC 23, cited
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- Case
- [2018] QCA 84
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework governing the decision-making process for development consents, specifically section 326 of the Sustainable Planning Act 2009 (Qld). This section outlines the conditions under which a decision may conflict with a relevant instrument unless there are sufficient grounds to justify the decision. The court considered precedents, including Grosser v City of Gold Coast and Weightman v Gold Coast City Council, which interpreted similar provisions in the Local Government (Planning and Environment) Act 1990 (Qld). In these cases, the courts established a two-stage process: identifying the conflict and then determining if there were sufficient planning grounds to justify the approval despite the conflict. The court concluded that the Planning and Environment Court had not correctly applied this statutory framework in its assessment of the development application, leading to errors of law in its decision.
The court granted leave to appeal and allowed the appeal, finding that the Planning and Environment Court's conclusion was flawed due to errors of law. The matter was remitted back to the Planning and Environment Court for reconsideration according to law. Additionally, the first and second respondents were ordered to pay the applicant's costs of and incidental to the application for leave to appeal and the appeal in the court. This decision underscores the importance of correctly applying statutory frameworks in development consent decisions and the potential consequences when such errors occur.
Orders
Orders of the court
1. Leave to appeal is granted.
2. The appeal is allowed.
3. Remit the matter to the Planning and Environment Court, to be further considered according to law.
4. The first and second respondents are to pay the applicant’s costs of and incidental to the application for leave to appeal and the appeal in this court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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