Calvisi v Brisbane City Council - [2008] QPEC 45

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Calvisi & Ors v. Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v. Brisbane City Council & Ors [2008] QPEC 45

PARTIES:

FRANCIS JOSEPH CALVISI
JOAN CALVISI
DIANA GRACE FAVELL

(Appellants)
v

BRISBANE CITY COUNCIL
(Respondent)
and
TOM DOOLEY DEVELOPMENTS PTY LTD
(Co-respondent)
and
URBAN STRATEGIES PTY LTD
(Co-respondent)

GRAHAM MORGAN, MATHILDE MORGAN
(Appellants)
v
BRISBANE CITY COUNCIL
(Respondent)
and
TOM DOOLEY DEVELPMENTS PTY LTD
(Co-Respondent)
and
URBAN STRATEGIES PTY LTD
(Co-Respondent)

NORMA UPHAM, PETER UPHAM
(Appellants)
v
BRISBANE CITY COUNCIL
(Respondent)
and
TOM DOOLEY DEVELOPMENTS PTY LTD
(Co-Respondent)
and
URBAN STRATEGIES PTY LTD
(Co-Respondent)

FILE NO/S:

2594 of 2007, 2618 of 2007 and 2916 of 2007

DIVISION:

Appellate

PROCEEDING:

Submitter appeals against development approval

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9, 14-18 April 2008, 29, 30 May 2008; written submissions to 17 June 2008 (co-respondents)

JUDGE:

Robin QC DCJ

ORDER:

Appeals dismissed

CATCHWORDS:

Integrated Planning Act 1997 s 3.2.1

Submitter appeals against Council approval of development application for site in medium density living precinct within the New Farm Teneriffe Hill Local Plan – site adjacent to heritage places (one so listed after Council approved development of a larger, taller building in its place) – site itself contained another heritage place (16 storeys and 13 storeys in height) to be sub-divided off in approved reconfiguration – acceptable solutions in applicable Local Plan code of 5 storeys maximum height and plot ratio of one substantially exceeded by approved tower of 10 storeys – related performance criteria found to be satisfied – Local Plan prevailed over Brisbane City Plan 2000 so that general provisions under which proposal was high density rather than medium density living were not determinative – river views held “maintained” notwithstanding obstruction by the tower – whether the development application invalid for failure to include (1) an area of road to be closed and amalgamated with the site, (2) land owner consents (3) demolition of an undistinguished building on the site (because it was on a “heritage place”), (4) a material change of use to cover intensification of the use associated with the designated heritage place buildings on the site – issues included heritage, architecture, urban design and visual amenity – proposal considered to produce an acceptable “visual relationship” with neighbouring and nearby buildings.

COUNSEL:

Mr Favell and Mr A Taylor for appellants in 2594 of 2007

Mr Morgan in person

Mr Upham in person

Mr Hinson SC for respondent

Mr Hughes SC, Mr Job and Mr Williamson for co-respondents

SOLICITORS:

Gail Malone and Associates for appellants in 2594 of 2007

Brisbane City Legal Practice for respondent

DLA Phillips Fox for co-respondents

REASONS FOR JUDGMENT

These three submitter appeals challenge the Council’s approval of residential development proposed by the co-respondents on a riverfront site in Moray Street, New Farm, No. 79. If the proposal is implemented, facing the street will be a 3-storey building, behind it on the River,…

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: [2008] QPEC 45
Decision Date: 8 July 2008

CaseChat Overview and Summary

In the case of Calvisi v Brisbane City Council, the applicant appealed against the Council's approval of a development application for a site in a medium density living precinct within the New Farm Teneriffe Hill Local Plan. The site was adjacent to heritage places, including one that was listed after the Council had approved the development of a larger, taller building in its place. The approved development included a reconfiguration of the site, which involved sub-dividing off another heritage place, a building of 16 storeys and another of 13 storeys in height. The applicable Local Plan code stipulated a maximum height of five storeys and a plot ratio of one, both of which were substantially exceeded by the approved tower of ten storeys. However, the related performance criteria were found to be satisfied.

The legal issues included whether the development application was invalid due to the failure to include an area of road to be closed and amalgamated with the site, land owner consents, the demolition of an undistinguished building on the site, and a material change of use to cover the intensification of the use associated with the designated heritage place buildings on the site. The issues also included heritage, architecture, urban design, and visual amenity. The proposal was considered to produce an acceptable "visual relationship" with neighbouring and nearby buildings.

The court found that the Local Plan prevailed over the Brisbane City Plan 2000, so that the general provisions under which the proposal was high density rather than medium density living were not determinative. The river views were held "maintained" notwithstanding the obstruction by the tower. The appeals were dismissed.

Orders

Orders of the court

Appeals 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:	Calvisi & Ors v. Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v. Brisbane City Council & Ors [2008] QPEC 45
PARTIES:	FRANCIS JOSEPH CALVISI JOAN CALVISI DIANA GRACE FAVELL (Appellants) v BRISBANE CITY COUNCIL (Respondent) and TOM DOOLEY DEVELOPMENTS PTY LTD (Co-respondent) and URBAN STRATEGIES PTY LTD (Co-respondent) GRAHAM MORGAN, MATHILDE MORGAN (Appellants) v BRISBANE CITY COUNCIL (Respondent) and TOM DOOLEY DEVELPMENTS PTY LTD (Co-Respondent) and URBAN STRATEGIES PTY LTD (Co-Respondent) NORMA UPHAM, PETER UPHAM (Appellants) v BRISBANE CITY COUNCIL (Respondent) and TOM DOOLEY DEVELOPMENTS PTY LTD (Co-Respondent) and URBAN STRATEGIES PTY LTD (Co-Respondent)
FILE NO/S:	2594 of 2007, 2618 of 2007 and 2916 of 2007
DIVISION:	Appellate
PROCEEDING:	Submitter appeals against development approval
ORIGINATING COURT:	Brisbane
DELIVERED ON:	8 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	8, 9, 14-18 April 2008, 29, 30 May 2008; written submissions to 17 June 2008 (co-respondents)
JUDGE:	Robin QC DCJ
ORDER:	Appeals dismissed
CATCHWORDS:	Integrated Planning Act 1997 s 3.2.1 Submitter appeals against Council approval of development application for site in medium density living precinct within the New Farm Teneriffe Hill Local Plan – site adjacent to heritage places (one so listed after Council approved development of a larger, taller building in its place) – site itself contained another heritage place (16 storeys and 13 storeys in height) to be sub-divided off in approved reconfiguration – acceptable solutions in applicable Local Plan code of 5 storeys maximum height and plot ratio of one substantially exceeded by approved tower of 10 storeys – related performance criteria found to be satisfied – Local Plan prevailed over Brisbane City Plan 2000 so that general provisions under which proposal was high density rather than medium density living were not determinative – river views held “maintained” notwithstanding obstruction by the tower – whether the development application invalid for failure to include (1) an area of road to be closed and amalgamated with the site, (2) land owner consents (3) demolition of an undistinguished building on the site (because it was on a “heritage place”), (4) a material change of use to cover intensification of the use associated with the designated heritage place buildings on the site – issues included heritage, architecture, urban design and visual amenity – proposal considered to produce an acceptable “visual relationship” with neighbouring and nearby buildings.
COUNSEL:	Mr Favell and Mr A Taylor for appellants in 2594 of 2007 Mr Morgan in person Mr Upham in person Mr Hinson SC for respondent Mr Hughes SC, Mr Job and Mr Williamson for co-respondents
SOLICITORS:	Gail Malone and Associates for appellants in 2594 of 2007 Brisbane City Legal Practice for respondent DLA Phillips Fox for co-respondents