Bryant v Caloundra City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bryant v Caloundra City Council [2005] QPEC 113

PARTIES:

PETER AND ELAYNE BRYANT

(appellants)

v  

CALOUNDRA CITY COUNCIL

(respondent)

FILE NO/S:

210/05

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

DELIVERED ON:

 7^th  December 2005

DELIVERED AT:

Maroochydore

HEARING DATE:

1^st December 2005

JUDGE:

K S Dodds DCJ

ORDER:

Application granted

CATCHWORDS:

ENVIRONMENT AND PLANNING – COUNCIL APPROVAL  SUBJECT TO CONDITIONS– APPLICATIONS –

Integrated Planning Act 1997 (Qld); section 3.5.30;

Appeal against respondent’s approval of development, subject to a condition requiring the appellant to construct a concrete footpath along the frontages of the development site; Whether condition reasonable  

COUNSEL:

Mr P Bryant (self-represented) for the appellant

Mr  M Heiner for the respondent  

SOLICITORS:

Heiner & Doyle for the respondent

1. This is an appeal by applicants for a development permit against a condition to which the approval granted was subjected.  The appellants have the onus of establishing that the appeal should be upheld.  Section 4.1.50 (1) Integrated Planning Act 1997 (IPA).

1. The appellants had applied to the respondent for a development permit for a material change of use.  What they wished to do was extend an existing building on lots 20 – 23 RPA 87664 (the subject land).

1. The existing building functions as a factory for garage door and like assembly.  It has an area at its Allen Street frontage for customer service.  In the respondent’s superseded planning scheme under which the application was assessed, it is located in the light industry zone.  What was initially proposed was that the additional building provide for two levels, being two small factories at ground level and two caretakers apartments above. The respondent’s acknowledgment notice described the proposal as an application for a “material change of use to establish an industrial development (Light Industry) (Code) involving an ERA (garage door assembly) and two caretakers residences”.  The proposal was later amended to alter the upper level to ‘office space’.

1. The application was approved by the respondent, subject to conditions.  One condition (not disputed) required the amalgamation of the four lots. Another condition (number 16) required the appellant to construct a 1.2 metre wide concrete footpath along the full length of Grigor and Lyon Street frontages of the site, including the provision of a kerb ramp where the footpath connects to the kerb and channelling at the Grigor/Lyon Street corner.  It is this condition which is the subject of the appeal.  The appellant seeks its deletion.

1. The grounds set out in the notice of appeal are:

• “that Grigor and Lyon Street are not frontages to the lots.  Rather the frontage is Allen Street;

• that the condition is not reasonable;

• that the proposed building extension will have no effect on pedestrian usage of the footpath.

1. Lots 20-23 are bounded by three streets.  Grigor Street is on the northern side.  Lot 20 has frontage to it.  Lot 21 has frontage to Grigor Street and also to Lyon Street. Lyon Street is on the eastern side of lot 21 and lot 22.…