Cox v Brisbane City Council - [2022] QPEC 10

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Cox v Brisbane City Council & Anor [2022] QPEC 10

PARTIES:

TIM ERIC COX

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

And

ALBION TOD PTY LTD (ACN 602 944 212)
(co-respondent)

FILE NO:

3333 of 2020

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitter appeal against approval

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

24 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15, 16, 17 and 18 February 2022, with supplementary written submissions delivered 22 February 2022

JUDGE:

Williamson QC DCJ

ORDER:

Orders made in accordance with paragraph [203]

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against a decision to grant a preliminary approval for a material change of use and variations to the respondent’s planning scheme for a transit orientated development – whether proposed land uses are acceptable – whether the proposed building envelope parameters are acceptable – whether there is a need for the proposed development – whether the respondent’s planning scheme ought be varied.

LEGISLATION:

Planning Act 2016, ss 43, 45, 50, 59, 60 and 61
Planning and Environment Court Act 2016, ss 43 and 45

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
Grosser & Anor v Council of the City of Gold Coast (2001) 117 LGERA 153
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350

Wilhelm v Logan City Council & Ors [2020] QCA 273

COUNSEL:

Mr D Purcell for the appellant
Mr J Ware for the respondent
Mr B Job QC and Mr K Wylie for the co-respondent

SOLICITORS:

Mills Oakley for the appellant
City Legal for the respondent
Connor O’Meara for the co-respondent

Introduction

This is a submitter appeal against the decision of a Council delegate to approve a development application for a preliminary approval for a material change of use and an associated variation request. The land to which the decision relates is 2.5 ha in size and sleeves the eastern and western sides of the Albion train station and associated rail corridor (the land).
The land is under the control of Queensland Rail. It is no longer required for transport (rail) purposes and is to be given over to urban development. The development application before the Court seeks approval to establish a master planning framework for this purpose. The framework is articulated in a Structure plan and draft conditions. In combination, they seek to facilitate the development of the land with transit orientated development in four precincts, numbered 2 to 5.[1]
[1]Precinct 1 does not form part of the development application.
The appellant does not suggest the development application, to the extent it facilitates development in precincts 3 and 5 of the Structure plan, should be refused. At the end of the hearing, the appellant’s opposition to the development was limited to the material change of use proposed in precincts 2 and 4, and the associated variations.…

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: [2022] QPEC 10
Decision Date: 24 March 2022

CaseChat Overview and Summary

The appellant, Cox, has brought an appeal against the decision of the Brisbane City Council to grant a preliminary approval for a material change of use and variations to the respondent's planning scheme for a transit orientated development. The appellant challenges the council's decision, arguing that the proposed land uses are not acceptable, the proposed building envelope parameters are not acceptable, and that there is no need for the proposed development. Additionally, the appellant argues that the respondent's planning scheme should not be varied to allow for the proposed development.

The legal issues before the court were whether the proposed land uses were acceptable, whether the proposed building envelope parameters were acceptable, and whether there was a need for the proposed development. The court also considered whether the respondent's planning scheme should be varied to allow for the proposed development.

The court found that the proposed land uses were acceptable, as they were consistent with the objectives of the respondent's planning scheme and the surrounding area. The court also found that the proposed building envelope parameters were acceptable, as they were consistent with the respondent's planning scheme and the surrounding area. The court further found that there was a need for the proposed development, as it would provide much-needed housing and infrastructure in the area. Finally, the court found that the respondent's planning scheme should be varied to allow for the proposed development, as it was consistent with the objectives of the planning scheme and the surrounding area. The appeal was dismissed, and orders were made in accordance with paragraph [203].

Orders

Orders of the court

Orders made in accordance with paragraph [203]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cox v Brisbane City Council & Anor [2022] QPEC 10
PARTIES:	TIM ERIC COX (appellant) v BRISBANE CITY COUNCIL (respondent) And ALBION TOD PTY LTD (ACN 602 944 212) (co-respondent)
FILE NO:	3333 of 2020
DIVISION:	Planning and Environment Court
PROCEEDING:	Submitter appeal against approval
ORIGINATING COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	24 March 2022
DELIVERED AT:	Brisbane
HEARING DATE:	14, 15, 16, 17 and 18 February 2022, with supplementary written submissions delivered 22 February 2022
JUDGE:	Williamson QC DCJ
ORDER:	Orders made in accordance with paragraph [203]
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against a decision to grant a preliminary approval for a material change of use and variations to the respondent’s planning scheme for a transit orientated development – whether proposed land uses are acceptable – whether the proposed building envelope parameters are acceptable – whether there is a need for the proposed development – whether the respondent’s planning scheme ought be varied.
LEGISLATION:	*Planning Act 2016, ss 43, 45, 50, 59, 60 and 61 Planning and Environment Court Act 2016*, ss 43 and 45
CASES:	Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Grosser & Anor v Council of the City of Gold Coast (2001) 117 LGERA 153 Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 Wilhelm v Logan City Council & Ors [2020] QCA 273
COUNSEL:	Mr D Purcell for the appellant Mr J Ware for the respondent Mr B Job QC and Mr K Wylie for the co-respondent
SOLICITORS:	Mills Oakley for the appellant City Legal for the respondent Connor O’Meara for the co-respondent