Bubendorfer v Brisbane City Council

[2010] QPEC 155

[2010] QPEC 155

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 865 of 2009

PETER ASHLEY JAMES BUBENDORFER	Appellant
and
BRISBANE CITY COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 16/09/2010

..DAY 1

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 4.1.5A, 4.1.52(2)(a)

Submitter appeal dismissed but on basis of changes to the development proposal replacing a flat roof with slightly higher pitched roofs - non-compliance by developer with public notification requirements excused - owner of all lots on adjoining property notified rather than the body corporate - late service of notice of appeal on Chief Executive by appellant excused
HIS HONOUR:  The Court makes an order in terms of the

initialled draft by consent of the parties.  Although it

dismisses Mr Bubendorfer's submitter appeal, he's had a

measure of success, to quote Mr Connor (representing the

co-respondent/developer).  That requires the Court to consider

whether changes to the developer's proposal, are minor change,

for purposes of section 4.1.52 (2)(b) of the Integrated Planning Act 1997, so that the appeal may proceed on the basis of the changed plans.

Putting it in a nutshell, what they do is give a more

traditional appearance to the developer; that essentially by

superimposing on the Brighton Road frontage twin pitched

roofs over a structure which otherwise would have had a more

modern appearance.

Mr Connor has taken the Court through the changes and made it

clear that from some points of view the proposal is now

bulkier in the sense of being taller.  Given that the increase

in height of up to a metre, are that the pitches of the new

roofs, there's not going to be any additional impact by

shadowing.  The change that's made qualifies as a minor change

for the purposes of the provision of IPA that I've mentioned.

In addition to that aspect requiring the Court's consideration

are two more technical ones.  Mr Buubendorfer overlooked the

necessity to inform the Chief Executive of the Department of

the appeal when that ought to have occurred; it's occurred

late, attracting no interest in that quarter in participating

in the proceeding.

Finally there's an issue to do with the notification of the

development application.  Relying information from the

Brisbane City Council which no-one contends has a statutory

responsibility to provide information in this regard in which

absolute confidence may be reposed, Mr Connor's client

notified its proposal to Margaret Grace Leighton on the basis that she was the proprietor of lots 1, 2 and 3 on a neighbouring property in Griffiths Street.  The truth of the matter is that those lots are in the Group Titles Plan 1140, the subject of the community management statement 21446.  The relevant provisions require that the body corporate be notified rather than the owners of the lots within it.  A search of the community management statement, as Mr Connor accepts, would have led to identification of the body corporate, since the inception of those arrangements on the neighbouring property noted Grace Leighton as the sole lot owner in the group title's plan and she remains that.  It's impossible to imagine that notification of her, rather than the body corporate in this instance, which is simply her alter ego, has affected no-one's rights at all.

It's an appropriate occasion to exercise the Court's powers

under section 4.1.5A. There will be orders as per the

initialled draft containing the customary conditions packaged.

-----