Brisbane City Council v Masters

[1998] QCA 35

N THE COURT OF APPEAL	[1998] QCA 035
SUPREME COURT OF QUEENSLAND

Appeal No. 7294 of 1997

Brisbane

[B.C.C. v. Masters]

BETWEEN:

BRISBANE CITY COUNCIL

(Respondent) Appellant

AND:

PETER WARWICK MASTERS

(Appellant)	Respondent
Fitzgerald P McPherson JA Byrne J

Judgment delivered 6 March 1998

Judgment of the Court

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS:	ENVIRONMENTAL LAW - town planning - filling of land - flooding - whether irrelevant consideration that applicant entitled to build houses without filling - Local Government (Planning and Environment) Act 1992, s. 4.13(5A) - Planning Scheme for City of Brisbane, sub-s. 24.2.5 - Strategic Plan of City of Brisbane
Counsel:	Mr J. Haydon for the appellant Mr A. Heyworth-Smith for the respondent
Solicitors:	Brisbane City Legal Practice for the appellant Alex Mackay for the respondent
Hearing Date:	17February1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7294 of 1997

Brisbane

Before Fitzgerald P
McPherson JA
Byrne J

[B.C.C. v. Masters]

BETWEEN:

BRISBANE CITY COUNCIL

(Respondent) Appellant

AND:

PETER WARWICK MASTERS

(Appellant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 March 1998

This is an appeal by the Brisbane City Council against an order made in the Planning and Environment

Court on 7 July 1997. That Court allowed an appeal by the respondent against the Council’s decision

refusing his application for consent to place fill on land which he owns, and set the conditions on which

the land could be filled. In its appeal to this Court, the Council contended that the Planning and

Environment Court misconstrued the Planning Scheme for the City of Brisbane, including the Strategic

Plan, and that this misconstruction was an error of law.

The respondent owns 24,606 square metres of vacant land, which was subdivided into 58 allotments

in 1885. All the land is situated in the Non-Urban zone, except for one lot which is in the Residential ‘A’ zone. The site, which is flood-prone, is lower than adjoining residential properties along its east,

south and west boundaries. The northern boundary abuts Kalinga Park, on the other side of which,

running from west to east, is Kedron Brook. The site is traversed by an open cut drain which flows

in a generally south-west to north-east direction. The part of Lewis Street which forms the northern

border of the site and those parts of Milman and Kemble Streets which lie within the site have not been

constructed. Some parts of those streets are impassable at all times by wheeled vehicles, and other

parts are trafficable, even in dry conditions, only by four-wheel drive vehicles. The respondent’s

application for consent to place fill on the site relates to a roughly triangular section in the south-west

corner of the site. The fill would raise the ground level to RL4.0 m. AHD. Part of Milman Street lies

within the triangular section, but the respondent did not apply to place fill on any part of Milman Street,

which would remain at its natural level of about RL3.0 m. AHD, or about one metre lower than the filled

area of the respondent’s land on either side of the street.

The respondent proposes residential development - about 12 houses - on the part of the site to which

the application for consent to place fill relates. Even with the fill, the proposed residential development

will not be satisfactory according to modern standards. The houses will have to be erected on high stilts

to reach the minimum flood-free floor level for habitable rooms on the subject land of RL8.3m. AHD,

and will be unsightly. Further, even if filled, the land will be flooded every two to five years, and, in

those circumstances, the houses will not have flood-free access, and property, including motor vehicles,

on the land will be affected by the flooding. However, residential development is a permissible use of

the land, according to its current zoning, and the disadvantages of residential development will be

decreased if the land is filled as proposed by the respondent. Filling and its consequences would not
have any significant adverse effect on other land nearby.

While the Council’s opposition to residential development on the land is understandable, it is very

difficult to identify the legal argument which the Council relied on. Reference was made to sub-s.

4.13(5A) of the Local Government (Planning and Environment) Act 1990, sub-s. 24.2.5 of the Planning

Scheme for the City of Brisbane, especially paragraphs (j) and (k), and Aim 5 and part of sub-s. 2.6.4

and Aim 7 and part of sub-s. 2.8.1 of the Brisbane Strategic Plan. There seems to be no purpose in

setting out these provisions which, as is common, express broad concepts in general terms. If town

planning consent was needed to build dwellings on the land, the provisions referred to by the Council

might well require that consent be refused. However, that was not, and is not, the issue.

The Council’s submissions fluctuated in the course of argument, but overall were based upon the legal

significance of the respondent’s proposal to build houses on the land and his right to do so without the

Council’s consent. At times the argument appeared to be that it was impermissible to have regard to

the respondent’s proposed use of the land, while at other times it was asserted that that was a matter

of considerable importance because of the unsatisfactory nature of any housing development on the

land. Ultimately, the point seemed to be that, in considering the respondent’s proposed use of the land

for housing after it was filled, it was impermissible to have regard to the respondent’s right to use the

land for that purpose without placing fill there. It was effectively conceded that, unless the respondent’s

right to build houses on the land without filling it was an erroneous consideration, the appeal must fail.

Although not enunciated with total clarity, the reason asserted for the irrelevance of the respondent’s

right to build houses without filling seemed to be that, even with filling, a housing development would be
unsatisfactory.
There is little which can be said in response to the Council’s argument beyond that it failed to

demonstrate that the parts of the Planning Scheme for the City of Brisbane, including the Strategic Plan,

which it referred to had the legal consequences for which it contended.

In such circumstances, it is consistent with the appellant’s approach to dismiss the appeal with costs to

be taxed.