Blue Sky Pty Ltd v BCC - [2010] QPEC 116

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Blue Sky Pty Ltd v BCC & Anor [2010] QPEC 116

PARTIES:

Blue Sky Pty Ltd
(Appellant)

And

Brisbane City Council
(Respondent)

And

Stephen John Pellegrino
(Co-Respondent)

FILE NO/S:

BD 2324 of 2004

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

18 October 2010

DELIVERED AT:

Townsville

HEARING DATES:

23, 24, 25, 26, 27, 30 November 2009 and 1 December 2009; (Final written submission 28 December 2009).

JUDGE:

Durward SC DCJ

ORDERS:

1. Appeal dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING - CULTURAL HERITAGE VALUES - PARK LAND - New Farm Park - Development application to build café, kiosk, restaurant and function room facility on lease area within park boundary - Heritage values - Heritage Place Code - whether size, scale and intensity conflict with heritage values of an historic early 20th century metropolitan park

ENVIRONMENT AND PLANNING - ARBOREAL ISSUES - PRECAUTIONARY PRINCIPLE - historic trees and palms - value and protection - presence of tree pathogen "phellinus noxious" - whether trees already infected or will be at risk of infection by work associated with development proposal - whether application of precautionary principle appropriate

ENVIRONMENT AND PLANNING - AMENITY - noise - patron, service & delivery vehicles, functions - impact upon adjacent residential area

ENVIRONMENT AND PLANNING - NOISE MANAGEMENT - whether noise management strategies sufficiently address noise impact on amenity - 'MANAGEMENT STRATEGY FOR FUNCTIONS' - whether proposal effective and enforceable

ENVIRONMENT AND PLANNING - TRAFFIC - traffic flow impact on adjacent residential area - non-residential traffic in short cul-de-sac medium density residential street - whether amenity impacts - PARKING - application of parking requirements of City Frame - whether demand on parking impacts on park values - whether impact on adjacent residential area - whether impact on internal ring road of park outside lease area

ENVIRONMENT & PLANNING - CONSTRUCTION OF PLANNING SCHEME - CONFLICT - SUFFICIENT GROUNDS - whether conflict with Planning Scheme - whether sufficient grounds to justify approval despite conflict

LEGISLATION:

City Plan 2000 Ch 3, Ch 5, Heritage Place Code (2003 & 2007), TAPS Policy, TAPS Code, Park Code, Transport Access Parking and Servicing Code
Queensland Heritage Register
Integrated Planning Act 1997 ss 3.2.3, 3.5.14, 4.1.52, 4.4.(5A)

CASES

Harderan Pty Ltd v Logan CC [1989] 1 QdR 524; Body Corporate for Kelly's Beach Resort v Burnett SC & Ors [2003] QPELR 614; Bon Accord v Brisbane CC & Ors (2008) 163 LGERA 288; Lane v Gatton SC [1988] QPLR 49; Esteedog Pty Ltd v Maroochy SC [1991] QPLR 7; Telstra Corporation Ltd v Pine Rivers SC [2000] QPELR 350; Leatch v DGNP & WS [1993] 81 LGRA 271; Mansell v Maroochy SC [2008] 122; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast CC (2007) QPELR 356; Aldi Stores v Redland CC [2009] QPEC 27; Weightman v Gold Coast CC (2003) 2 Qd R 441; Woolworths Ltd v Maryborough CC (2006) 1 Qd…

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: [2010] QPEC 116
Decision Date: 18 October 2010

CaseChat Overview and Summary

In the matter of Blue Sky Pty Ltd versus BCC, the Brisbane City Council (BCC) was the respondent. The dispute involved a development application by Blue Sky Pty Ltd to construct a café, kiosk, restaurant, and function room facility within the New Farm Park, an area designated as a metropolitan park with significant heritage values. The primary legal issues revolved around whether the proposed development conflicted with the heritage values of the park, particularly considering the size, scale, and intensity of the proposed facility. Additionally, the court examined the application of the precautionary principle in relation to the preservation of historic trees and palms potentially at risk from the fungus Phellinus noxious. The amenity and noise impact on the adjacent residential area, as well as the adequacy of noise management strategies, were also scrutinized. Furthermore, the court considered the impact of the proposed development on traffic flow and parking within the vicinity, including the internal ring road outside the lease area.

The Queensland Court of Appeal examined whether the proposed development would significantly conflict with the heritage values of the park and whether the precautionary principle should be applied to protect the trees from the Phellinus noxious fungus. The court also evaluated whether the noise management strategies were sufficient to mitigate the impact on the adjacent residential area and whether the development would adversely affect traffic flow and parking. The appeal was dismissed, indicating that the court found the development application did not sufficiently conflict with the Planning Scheme to warrant approval despite the conflicts identified. The court held that the proposed development did not adequately address the concerns regarding heritage values, arboreal protection, noise impact, and traffic management.

Orders

Orders of the court

1. Appeal dismissed

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:	Blue Sky Pty Ltd v BCC & Anor [2010] QPEC 116
PARTIES:	Blue Sky Pty Ltd (Appellant) And Brisbane City Council (Respondent) And Stephen John Pellegrino (Co-Respondent)
FILE NO/S:	BD 2324 of 2004
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	18 October 2010
DELIVERED AT:	Townsville
HEARING DATES:	23, 24, 25, 26, 27, 30 November 2009 and 1 December 2009; (Final written submission 28 December 2009).
JUDGE:	Durward SC DCJ
ORDERS:	1. Appeal dismissed
CATCHWORDS:	ENVIRONMENT AND PLANNING - CULTURAL HERITAGE VALUES - PARK LAND - New Farm Park - Development application to build café, kiosk, restaurant and function room facility on lease area within park boundary - Heritage values - Heritage Place Code - whether size, scale and intensity conflict with heritage values of an historic early 20th century metropolitan park ENVIRONMENT AND PLANNING - ARBOREAL ISSUES - PRECAUTIONARY PRINCIPLE - historic trees and palms - value and protection - presence of tree pathogen "phellinus noxious" - whether trees already infected or will be at risk of infection by work associated with development proposal - whether application of precautionary principle appropriate ENVIRONMENT AND PLANNING - AMENITY - noise - patron, service & delivery vehicles, functions - impact upon adjacent residential area ENVIRONMENT AND PLANNING - NOISE MANAGEMENT - whether noise management strategies sufficiently address noise impact on amenity - 'MANAGEMENT STRATEGY FOR FUNCTIONS' - whether proposal effective and enforceable ENVIRONMENT AND PLANNING - TRAFFIC - traffic flow impact on adjacent residential area - non-residential traffic in short cul-de-sac medium density residential street - whether amenity impacts - PARKING - application of parking requirements of City Frame - whether demand on parking impacts on park values - whether impact on adjacent residential area - whether impact on internal ring road of park outside lease area ENVIRONMENT & PLANNING - CONSTRUCTION OF PLANNING SCHEME - CONFLICT - SUFFICIENT GROUNDS - whether conflict with Planning Scheme - whether sufficient grounds to justify approval despite conflict
LEGISLATION:	City Plan 2000 Ch 3, Ch 5, Heritage Place Code (2003 & 2007), TAPS Policy, TAPS Code, Park Code, Transport Access Parking and Servicing Code Queensland Heritage Register Integrated Planning Act 1997 ss 3.2.3, 3.5.14, 4.1.52, 4.4.(5A)
CASES	Harderan Pty Ltd v Logan CC [1989] 1 QdR 524; Body Corporate for Kelly's Beach Resort v Burnett SC & Ors [2003] QPELR 614; Bon Accord v Brisbane CC & Ors (2008) 163 LGERA 288; Lane v Gatton SC [1988] QPLR 49; Esteedog Pty Ltd v Maroochy SC [1991] QPLR 7; Telstra Corporation Ltd v Pine Rivers SC [2000] QPELR 350; Leatch v DGNP & WS [1993] 81 LGRA 271; Mansell v Maroochy SC [2008] 122; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast CC (2007) QPELR 356; Aldi Stores v Redland CC [2009] QPEC 27; Weightman v Gold Coast CC (2003) 2 Qd R 441; Woolworths Ltd v Maryborough CC (2006) 1 Qd…