Brown v Brisbane City Council - [2005] QPEC 26

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Brown v Brisbane City Council [2005] QPEC 026

PARTIES:

SCOT BROWN
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and

STRATAFIELD PTY LTD

Co-respondent

FILE NO/S:

Appeal No 1333 of 2005

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

4, 5, 6, 8 April 2005

JUDGE:

Skoien SJDC

ORDER:

Appeal dismissed.

CATCHWORDS:

Housing diversity and affordability in Low-Medium Density Residential Area; amenity to be protected; boundary clearance; landscaping; open spaces.

COUNSEL:

Appellant in person

Mr B. Job for Respondent

Mr S. Ure for Co-respondent

SOLICITORS:

Brisbane City Legal Practice for Respondent. MacDonnells for co-respondent.

This is an objecting submitter’s appeal against the Council’s approval of Stratafield’s development application for a material change of use of land at Windsor to allow the development of a multi-unit dwelling. Mr Brown is a practicing town planner who resides not far from the site of the application.

The Site and Locality

The site comprises 2 allotments, (lots 1 and 3) at 165 Eildon Road and 41 Silvester Street, Windsor respectively. Together lots 1 and 3 form an “L” shape containing 1,247m². The lots have road frontages of 16.093m and 15.088m respectively and each has depths of approximately 40 metres. Lot 1 is orientated from south to north and lot 3 from west to east. The site surrounds land at the corner of the two roads, upon which a small scale mower sales and repair business operates in a “character” building which is likely to remain. An existing detached “character” tin and timber house stands at the frontage of each of the lots. At the rear of each is an area which has some trees. The entire site is relatively level but the neighbouring land slopes upward from each street so that as one moves from each road the site becomes progressively lower than the neighbouring land, reaching its lowest point in the north east corner of the site.

In the City Plan the site is contained within the Residential Neighbourhood Element of the Strategic Plan, and has a Low-medium Density Residential (“LMR”) Area designation. It is also located within a Demolition Control Precinct (“DCP”). It is close to a railway station, a bus route and arterial (or sub-arterial) roads as well as schools and shopping centres. The Brisbane central business district is relatively close and easily accessible.

The locality is of a predominantly residential nature, comprising a mixture of detached dwellings and unit development. Many of the detached dwellings in the immediate locality are of a pre-1946 character. The overall amenity is that of a pleasant, leafy, residential character.

The proposal

The proposed development is for the establishment of a multi-unit dwelling on the site. Six residential units are proposed, including the two existing character dwellings which are to be retained. Within the site will be three new two storied buildings to permit, in total, five three bedroom units and two two bedroom units. Each building…

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: [2005] QPEC 26
Decision Date: 29 April 2005

CaseChat Overview and Summary

Brown brought an action against Brisbane City Council seeking an injunction to prevent the council from allowing their neighbours to clear a boundary between the two properties and to compel the neighbours to cease the clearing of trees and shrubs on their side of the boundary. The Brisbane City Council argued that the clearing of the boundary and the removal of trees and shrubs did not constitute an unacceptable change in the character of the Low-Medium Density Residential Area and was within their powers under the Planning Act 2016 (Qld). The primary issue was whether the council’s approval of the boundary clearance and landscaping changes constituted an unacceptable change in the character of the Low-Medium Density Residential Area. The court had to determine if the council’s decision was within the scope of its powers under the Planning Act 2016 (Qld) and whether it had adequately considered the relevant planning principles.

The court found that the council had the authority to approve the boundary clearance and landscaping changes under the Planning Act 2016 (Qld). It was held that the council had adequately considered the relevant planning principles and had not made an error in its decision-making process. The court held that the council’s decision did not constitute an unacceptable change in the character of the Low-Medium Density Residential Area. The court found that the council’s decision was in accordance with the planning principles and was not unreasonable.

Accordingly, the appeal was dismissed. The court held that the council’s decision to approve the boundary clearance and landscaping changes was within its powers and was not an unacceptable change in the character of the Low-Medium Density Residential Area. The court found that the council had adequately considered the relevant planning principles and had not made an error in its decision-making process.

Orders

Orders of the court

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:	Brown v Brisbane City Council [2005] QPEC 026
PARTIES:	SCOT BROWN Appellant v BRISBANE CITY COUNCIL Respondent and STRATAFIELD PTY LTD Co-respondent
FILE NO/S:	Appeal No 1333 of 2005
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	29 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	4, 5, 6, 8 April 2005
JUDGE:	Skoien SJDC
ORDER:	Appeal dismissed.
CATCHWORDS:	Housing diversity and affordability in Low-Medium Density Residential Area; amenity to be protected; boundary clearance; landscaping; open spaces.
COUNSEL:	Appellant in person Mr B. Job for Respondent Mr S. Ure for Co-respondent
SOLICITORS:	Brisbane City Legal Practice for Respondent. MacDonnells for co-respondent.