Collard v Brisbane City Council - [2010] QPEC 39

[2010] QPEC 39

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 778 of 2010

CHRIS JOHN COLLARD	Applicant
and
BRISBANE CITY COUNCIL	Respondent
and
NGA KIM VU	Co-Respondent by election

BRISBANE

..DATE 29/04/2010

..ORDER AND REASONS

CATCHWORDS

Sustainable Planning Act 2009 s 367, s 369, s 374

Application to change development approval constituted by a court order which envisaged a maximum height above natural ground level of 9.5 metres - sloping site where a stepped roof was envisaged in original plans - applicant's private certifier and draftsperson produced plans used in construction incorporating a flat roof with exceedences along the eastern wall from 0.2 metre to 0.5 metre - Council (and the more affected downhill neighbours) supportive of applicant who was considered blameless - whether "permissibile change" - court required to consider putative submissions - uphill neighbour already a submitter, who filed affidavit material in opposition to the application but decided not to participate in the hearing

HIS HONOUR: The Court will order that the Development
Approval for the subject premises constituted by its order of
the 10th July 2009 in BD 1487 of 2009 be changed to permit
development in accordance with those plans from Exhibit CJC01
to the applicant's affidavit filed on the 12th of March 2010,
copies of which are annexed to this order, to the intent that
on the eastern side of the building a height above natural
ground level of 9.71 metres is permitted in the south
and at the northern end, a height of 10 metres.

...

HIS HONOUR: The applicant, Mr Collard, has been
self-represented throughout this saga, in which he is attempting, with his partner, to acquire a new home in Denman Street, Greenslopes. The property was acquired with plans for a residence. The approval which had been obtained was successfully challenged in an appeal brought by Nga Vu.

Before Mr Collard became involved, he discovered that the blunt instrument of reducing heights in the way that was done in Miss Vu's appeal committed him to a building which was not going to be suitable. In Collard v. Brisbane City Council [2009] QPEC 62; [2010] QPELR 6, he succeeded in depriving Miss Vu of the advantage which she had gained in the compromise of her appeal. Effectively, what the Council had approved was reinstated. Her concern is based on the height of the structure which, coupled with other considerations such as the size and dimensions of the site, rendered the relevant development application impact assessable.

Unfortunately, the plans which were available at that stage
were not suitable to permit construction. Things have gone
wrong in the process of attending to that deficiency. As the
story was presented to the Court, that's not Mr Collard's
doing but a consequence of deficiency in the combined
performance of the private certifier and the draftsperson he
engaged.

The land falls away steeply from Denman Street. The original
proposal for a stepped roof, which would follow the contours
of the site, got…

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: [2010] QPEC 39
Decision Date: 29/04/2010

CaseChat Overview and Summary

Collard v Brisbane City Council [2010] QPEC 39 was a case where the applicant, Mr Collard, sought a change to the development approval for a property in Greenslopes. The court had previously ordered that the maximum height above natural ground level be 9.5 metres. However, the applicant's private certifier and draftsperson produced plans for a flat roof with exceedances along the eastern wall of 0.2 metres to 0.5 metres. The Council and the more affected downhill neighbours were supportive of the applicant, who was considered blameless. The court was required to consider whether the change was a "permissible change" under the Sustainable Planning Act 2009. The court also had to consider the putative submissions from the uphill neighbour, Ms Vu, who had already filed affidavit material in opposition to the application but decided not to participate in the hearing.

The court found that the change sought by the applicant did not result in a substantially different development or trigger the involvement of additional concurrence agencies. The court also found that the change was in line with the original impact-assessable development application. The court held that the withdrawal of Ms Vu, the uphill neighbour, who was already a submitter, could be taken as an indication that she was unlikely to make a properly made submission. The court also found that the change did not have a significant impact on Ms Vu's views and outlook. The court concluded that there was a public interest in reaching some sort of finality so that the lawfulness of existing improvements or the unlawfulness of them is clearly established.

The court ordered that the development approval for the subject premises be changed to permit development in accordance with the plans from Exhibit CJC01 to the applicant's affidavit filed on the 12th of March 2010. The court also ordered that on the eastern side of the building a height above natural ground level of 9.71 metres is permitted in the south and at the northern end, a height of 10 metres.

Orders