Cowen v Brisbane City Council

Case [2015] QPEC 50

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cowen & Anor v Brisbane City Council & Anor [2015] QPEC 50

PARTIES:

PETER COWEN

&

LOU FERRARIN

(appellants)

v

BRISBANE CITY COUNCIL

(respondent)

&

NEXTRA AUSTRALIA PTY LTD

(co-respondent)

FILE NO/S:

939/15

DIVISION:

Planning & environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland

DELIVERED ON:

19 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24, 25 and 28 September 2015

JUDGE:

RS Jones DCJ

ORDER:

The appeal is dismissed.1.          

The matter is adjourned to 2 November 2015, on which date the parties are to seek final orders on an agreed set of conditions.2.          

On 2 November 2015 the parties are to advise the court of their position as to costs.   3.          

CATCHWORDS:

APPEAL – where respondent council approved multi-unit development at Highgate Hill – where submitters contended proposed development in conflict with town plan – where conflicts said to arise under City Plan 2000 and City Plan 2014.

CONFLICT – where asserted proposed development in conflict with City Plan 2000 and City Plan 2014 in respect of traffic and parking – street character – height, bulk and scale.

ONUS OF PROOF – where co-respondent developer still bore onus of proof despite being respondent to appeal – Section 495 Sustainable Planning Act 2009.

SUFFICIENT GROUNDS – where conflict with City Plan 2014 found in respect of height, bulk and scale – whether sufficient grounds existed warranting approval of the proposed development despite the conflict.

Sustainable Planning Act 2009

Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342

Baptist Union of Queensland v Brisbane City Council & Anor (2003) QPELR 61

Hankamer & Ors v Brisbane City Council & Anor (2013) QPELR 800

Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64

K Page Main Beach Pty Ltd v Gold Coast City Council & Anor [2011] QPEC 1

Lockyer Valley Regional Council v Westlink Pty Ltd (No. 3) (2012) 191 LGERA 452

Mackay Shopping Centres Pty Ltd v Mackay Regional Council (2013) QPELR 661

Scurr v Brisbane City Council (1973) 133 CLR 242

SDW Projects Pty Ltd v Gold Coast City Council & Anor (2007) QPELR 24

Stockland Development v Townsville City Council& Ors (2013) 195 LGERA 317

Szylkarski & Ors v Brisbane City Council & Anor (2013) QPELR 205

Weightman v Gold Coast City Council & Anor [2003] 2 Qd R 441

Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337

Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273

Zappala Family Trust Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82

COUNSEL:

Mr M Batty for the appellants.

Mr J Lyons for the respondent.

Mr A Skoien for the co-respondent.

SOLICITORS:

Thynne Macartney for the appellants.

Brisbane City Legal Practice for the respondent.

Cranston McEachern Lawyers for the co-respondent.

  1. This proceeding was concerned with an appeal against the Brisbane City Council’s (the Council)…

Details
AGLC
Cowen v Brisbane City Council [2015] QPEC 50
Case
[2015] QPEC 50
Decision Date

CaseChat Overview and Summary

In the matter of Cowen v Brisbane City Council, the appellant, Mr Cowen, challenged the respondent council’s approval of a multi-unit development at Highgate Hill. Submitters argued the proposed development conflicted with the town plan, specifically under City Plan 2000 and City Plan 2014, in respect of traffic and parking, street character, height, bulk and scale. The appellant contended the development would negatively impact the area’s character and cause traffic congestion. The Brisbane City Council defended its approval, arguing that the development would not adversely affect the area and met planning requirements.

The court was required to determine whether the proposed development conflicted with City Plan 2000 and City Plan 2014 in respect of traffic and parking, street character, height, bulk and scale. The court also needed to establish whether there were sufficient grounds to warrant approval of the proposed development despite the alleged conflict. Furthermore, the court had to address the issue of the onus of proof, specifically whether it lay with the co-respondent developer, the respondent to the appeal, despite section 495 of the Sustainable Planning Act 2009.

The court found that the proposed development did conflict with City Plan 2014 in respect of height, bulk and scale. However, the court also found that there were sufficient grounds to warrant approval of the proposed development despite the conflict. The court determined that the co-respondent developer bore the onus of proof, in accordance with section 495 of the Sustainable Planning Act 2009. The court dismissed the appeal and adjourned the matter to 2 November 2015, for the parties to seek final orders on an agreed set of conditions and advise the court of their position as to costs.

Orders

Orders of the court

The appeal is dismissed.1.

The matter is adjourned to 2 November 2015, on which date the parties are to seek final orders on an agreed set of conditions.2.

On 2 November 2015 the parties are to advise the court of their position as to costs. 3.

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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