Collard v Brisbane City Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Collard v Brisbane City Council [2009] QPEC 062

PARTIES:

CHRIS JOHN COLLARD

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

1487 of 2009

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court

DELIVERED ON:

15 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2009

JUDGE:

Robin QC DCJ

ORDER:

(made 10 July 2009) Development conditions set by court order changed

CATCHWORDS:

Integrated Planning Act 1997 s 3.5.33 – Planning and Environment Court Rules 2008 r 3(2) – Uniform Civil Procedure Rules r 668 – after impact assessment, Council approved material change of use for small lot house to 9.5 metres above ground level – a neighbour’s submitter appeal was compromised on basis height was limited to 9.2 metres – new owner of site sought change of conditions to reinstate Council approval at 9.5 metres – according to a Show Cause notice issued by Council on the eve of the making of the order effecting the compromise, parts of the submitter’s residence with views and amenity said to be affected were constructed without approval – submitter not made a party, but had been ordered to be served – she could not be located, and whether service by post to her premises (her sole address for all known purposes) brought the application to her notice was uncertain – conditions changed – provision made to protect non-appearing submitter’s position

COUNSEL:

Appellant was self represented

T Trotter for the Respondent

SOLICITORS:

Brisbane City Legal Practice for the Respondent

1. Mr Collard has recently purchased a small vacant block (under 450m²) at 127 Denman Street, Greenslopes on which he hopes to build a family home.  He is frustrated by the provisions of an order made in this court in appeal BD2222 of 2008 on 22 January 2009 embodying certain plans, which he says (among other things) incorporate an inappropriately low ceiling height for the ground floor.  The approval in the court’s order was for a development permit for a material change of use for a house over 8.5metres above ground level on a lot less than 450m² and for a preliminary approval for building work.  The approval package concludes with advice that it “does not include assessment against the Building Code of Australia and does not permit building work to occur.  Prior to the commencement of any building work, development permit(s) for Carrying Out Building Work will be required.”  Such a Development Permit will lack features important to Mr Collard unless conditions set by the court which control what it may allow are changed.  The conditions effectively limit the house to the levels shown in the plans.

1. Section 3.5.33 of the Integrated Planning Act 1997 (IPA) provides:

“3.5.33      Request to change or cancel conditions

(1) This section applies if—

(a)a person wants to change or cancel a condition; and

(b)no assessable development would arise from the change or cancellation.

(2) The person may, by written notice to the entity that decided the condition…