Choi v Brisbane City Council

[2012] QPEC 27

[2012] QPEC 27

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 189 of 2010

YUK SUM CHOI

and

HO MING CHAN

and

Appellants

BRISBANE CITY COUNCIL

and

KEN DREW TOWN PLANNING

Respondents

BRISBANE

..DATE 30/03/2012

ORDER

CATCHWORDS
Integrated Planning Act 1997 s 4.1.82(2)(b)
Sustainable Planning Act 2009 s 350

Submitter appeal by neighbours against council approval - development application related to work already done without any approval, and was to "regularise" development already carried out - court order gave effect to parties' compromise which required reduction in height of a dominating solid block wall and replacement by "lighter" screening - "minor change"
HIS HONOUR:  The court makes an order in terms of an initialled draft, which is in terms the parties have been able to agree upon.  The court expresses its appreciation to them for that. 

I think it's important that what occurs be recorded.  The proceeding vindicates the appellants who wish to preserve their residential amenity, particularly from the point of view of privacy and being overlooked by their uphill rear neighbours.

The proceeding is a submitter appeal against the Council's granting a development approval to regularise work which had been done at the rear of the co-respondents' residence in connection with the construction there of a lap pool.

The co-respondents, with a view to looking to their own privacy and security and perhaps out of some understanding that what they did would satisfy their neighbours in that regard, constructed a solid masonry wall behind the pool which not only provides the housing for the pool itself, but also the pool fence, so to speak. 

From the appellants' point of view they are faced with the prospect of a high blockwork structure up to 4.1 metres in height just across their back fence.  Typical of the context of Spring Hill, their own living areas which have glass walls are very close to that boundary.

At one end of the block wall I've mentioned is a projecting balcony below which equipment associated with the pool will be installed.  That balcony is effectively open, which concerned the appellants given that people in that area would have a view inside private areas of the house.

The works that I have referred to were done without any development approval being obtained.  The development application was one of the common kind made to regularise development that had already occurred.

The courts are understandably reluctant to require the dismantling of work that's been done perhaps at considerable expense, perhaps in contravention of development approvals: Caloundra City Council v Taper Pty Ltd [2003] QPELR 558. Other jurisdictions offer precendents for such orders. There's waste involved which no one likes to see. On the other hand, it's incumbent on the court to do what's required to ensure that the planning regime is enforced for the purpose of fulfilling the reasonable expectations of residents.

The town planning reports which the court has had occasion to read, although the proceeding has settled, Ms Rayment's, in particular (tendered by Ms Kefford), indicate that the appellants had a case.  There's been no argument on the issue, so it's inappropriate for the court to pronounce further upon it.

The view can be found expressed, for example, in the annotated planning legislation by Fogg, Meurling and Hodgetts Planning and Development Queensland 8605; That the courts may be something of a paper tiger in a context like the present where development has already occurred outside what the planning arrangements allow (development “ignoring the law”) and application is made to “regularise” it, I think it's important to make it more widely known than it probably is that the courts are prepared to interfere in appropriate circumstances to require the demolition of structures that have been put up without approval as in Brisbane City Council v Wang [2008] QPEC 066; [2009] QPELR 144 (later proceedings [2008] QPEC 089) or to require more modest amounts of demolition, as in Nimmo v Land One Solutions Pty Ltd [2006] QPELR 645, which Mr Skoien will recall. The court has earlier authorised access to the side for the applicant's surveyor; [2006] QPEC 055.

As it happens in the present context what's agreed to be done by the co-respondents roughly coincides with my inclinations based on the court's inspection at the location and reading the reports - I hasten to add, without the benefit of argument.  What is to occur is the removal of a few courses of block work and their replacement by frosted glass screening, which will permit the individual parties to enjoy their privacy, but not afflict the appellants with such a massive wall in the area immediately opposing their residence.  Similar frosted glass screening is to be installed on the appellants' side of the balcony mentioned.

The circumstances are ones in which it's necessary for the court to declare its satisfaction that the changes made to the proposal which won the Council's endorsement are minor change for the purposes of section 4.1.52(2)(b) of the Integrated Planning Act 1997. The location of the relevant definition of minor change is section 350 of the Sustainable Planning Act 2009. The court is comfortably satisfied that from that point of view and any other point of view the changes proposed are minor.

Order as per initialled draft.

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