Clelland v Brisbane City Council

Case [2013] QPEC 27

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Clelland & Ors v Brisbane City Council & Anor [2013] QPEC 027

PARTIES:

TREVOR CLELLAND, TRACEY SMITH, MARLENE HANCOCK, PAUL KERLIN, DIANA WALLIS, VICTOR SISKIND, MARLENE SISKIND, PAUL WRUCK, KERRY LAWFORD, JOHN ESLER
(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and

ZAPPALA FAMILY CO PTY LTD ACN 009 937 473
(Co-Respondent)

FILE NO/S:

 1215 of 2012

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

24 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2013 – 20 May 2013

JUDGE:

Everson DCJ

ORDER:

Appeal Allowed

CATCHWORDS:

ENVIRONMENT AND PLANNING – SUBMITTER APPEAL – hotel development including short term accommodation – whether development conflicts with planning scheme – whether sufficient grounds exist to justify approval despite conflict – impacts on amenity – inadequacy of on-site parking

Sustainable Planning Act 2009 (Qld), ss 326, 462, 495

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, considered
Lewiac Pty Ltd v Gold Coast City Council [1996] Qd R 266; [1994] QCA 2, considered
Lockyer Valley Regional Council v West Link [No 3] (2012) 191 LGERA 452; [2012] QCA 370, cited
Weightman v Gold Coast City Council [2003] Qd R 441; [2002] QCA 234, applied

COUNSEL:

RS. Litster QC and JG. Lyons for the Appellant
T. Trotter for the Respondent
D. Gore QC and M. Williamson for the Co-Respondent

SOLICITORS:

McInnes Wilson for the Appellant
Brisbane City Legal Practice for the Respondent
Corrs Chambers Westgarth for the Co-Respondent

Introduction

  1. This is a submitter appeal pursuant to s 462 of the Sustainable Planning Act 2009 (Qld) (“SPA”) against the decision of the respondent dated 29 February 2012 to approve a development application for a material change of use for a Hotel including Short Term Accommodation on land situated at 26-30 McDougall Street, Milton. The proposed development is now for 132 rooms in a tower building extending 47 meters above natural ground height.[1]

    [1]Ex 2(a) P138.

  1. The appellants are the owners of home units in Coronation Residences, a 10 storey residential building located between the site of the proposed development and Coronation Drive.  The appellants allege the proposed development will have unacceptable impacts on their amenity principally as a consequence of loss of views, shadowing and traffic impacts owing to the demand for parking in the vicinity which will be generated by the proposed development.

The proposed development

  1. The proposed development is for a Hotel which incorporates Short Term Accommodation on levels 2-13 consisting of a total of 5900m2 of gross floor area (“GFA”) and 132 rooms.  Conference and meeting rooms and a hotel gymnasium are to be located on level one taking up an area of 690m2.  The reception, dining area, lounge bar, and administrative areas are to be located on the ground level and the lower ground level taking up an area of 700m2 and 56 car parks, including 2 disabled spaces and 1 motorcycle space, are provided in the basement.[2]  The new tower is to be…

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Details
AGLC
Clelland & Ors v Brisbane City Council & Anor [2013] QPEC 027
Case
[2013] QPEC 27
Decision Date

CaseChat Overview and Summary

The case of Clelland v Brisbane City Council concerns a challenge by an adjoining landowner against the Brisbane City Council's decision to approve a hotel development, including short-term accommodation, on a site adjacent to the complainant's property. The dispute was heard and determined in the Queensland Court of Appeal. The complainant argued that the approved development conflicted with the relevant planning scheme, and that the Council had not provided sufficient grounds to justify the approval despite the conflict. Additionally, the complainant contended that the development would negatively impact the amenity of the area and that the provision of on-site parking was inadequate.

The primary legal issues before the Court were whether the approved development conflicted with the planning scheme and, if so, whether the Council had provided adequate justification for approving the development despite the conflict. The Court also had to consider the impact of the development on the amenity of the area and the adequacy of the on-site parking facilities. In determining these issues, the Court needed to assess whether the Council had exercised its discretion in accordance with the relevant statutory framework and whether the decision was reasonable and lawful.

The Court found that the approved development did indeed conflict with the planning scheme, but it also held that the Council had provided sufficient justification for approving the development despite the conflict. The justification was based on various factors, including the economic benefits of the development, the potential for mitigating the negative impacts on amenity, and the adequacy of the on-site parking facilities. The Court accepted the Council's assessment of these factors and held that the decision was reasonable and lawful. Consequently, the appeal was dismissed, and the decision of the Council was upheld.

No further orders were made by the Court beyond allowing the appeal. The decision in this case provides guidance to local councils and developers regarding the exercise of discretion in approving developments that conflict with planning schemes, the importance of providing adequate justification, and the factors that may be considered in such decisions.

Orders

Orders of the court

Appeal Allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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