De Marco v Brisbane City Council - [2015] QPEC 55

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

De Marco v Brisbane City Council & Ors [2015] QPEC 55

PARTIES:

ROBERT DE MARCO

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

STEWART LEWIS & ORS

(Co-Respondents)

FILE NO/S:

4310 of 2014

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland

DELIVERED ON:

13 November 2015

DELIVERED AT:

Brisbane

HEARING DATES:

21-23 September 2015

JUDGE:

Searles DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

PLANNING – RESIDENTIAL DEVELOPMENT – RECONFIGURATION OF LOTS – BUILDING WORKS – PARTIAL DEMOLITION - CONFLICT – Proposal involves subdividing two lots into three lots, building works for two single unit dwellings, and a partial demolition of a house – Whether proposal conflicts with planning scheme.

Brisbane City Plan 2000

Brisbane City Plan 2014

Sustainable Planning Act 2009 (Qld) ss 314, 324, 326, 495

Maher v Hervey Bay City Council [2007] QPELR 123

Singh v Beaudesert Shire Council [2004] QPELR 16

COUNSEL:

S Fynes-Clinton for the Appellant

M Williamson for the Respondent

No appearance for the Co-Respondents

SOLICITORS:

Milne Legal for the Appellant

Brisbane City Legal Practice for the Respondent

Contents

Appeal3
Surrounding Locality4
City Plan 2000 Designation5
City Plan 20145
Proposed Development6
Minor Change7
Issues in Dispute7
Statutory Assessment Regime8
Submitters8
Planning Evidence8
Agreed Relevant Provisions of City Plan 20008
Council’s Concerns Re: City Plan 20009
          Residential Design – Single Unit Dwelling – City Plan 20009
          DEO4 of the Residential Areas – City Plan 20009
          DEO5 of the Residential Areas of City Plan 200011

The Purpose of the Residential Design – Single Unit Dwelling Code – City Plan 200012
Residential Design – Single Unit Dwelling Code12
Purpose of the Residential Design – Character Code13

Council Concerns Re: City Plan 2014 13
City Plan 2014 – Character Residential Zone13
City Plan 2014 – Traditional Building Character (Design) Overlay Code15
Appellant’s Response to Council Concerns15

Residential Design – Single Unit Dwelling Code15
DEO4 of the Residential Areas – City Plan 200016
Individual Report of Mr Harvey 15 September 201517
Shadowing21
Boundary Setbacks21
Dwelling House Density22

Traffic Evidence22
Council’s Submissions23
Conflicts with City Plan 2000 23
Compatibility with Character of Charlton Street25
Mr Harvey’s Evidence27
City Plan 201429
Appellant’s Arguments31

Compliance with Residential Design – Character Code – City Plan 200031
Performance Criterion P532
Performance Criterion P235
Stepping Rooflines in a Sloping Street36
Residential Design – Single Unit Dwelling Code39
Consequences of 3 Storeys40
Exceedance of Overall Dwelling Density42
Performance Criterion P443
City Plan 201443
The Appellant’s Summary of Arguments Re: City Plan 201445
Conflict with City Plan 200046

Discussion47
City Plan 201448
Grounds to Justify Approval notwithstanding Conflict with City Plan 200048
Decision49
Schedule A - Relevant extracts of City Plan 200050
Schedule B - Relevant extracts of City Plan 201454

Appeal

This is an appeal filed 3 November 2014 against the decision of the Council, contained in Decision Notice dated 22 October 2014, refusing the Appellant’s development application for a development permit for the reconfiguration of a lot, namely two lots into three lots, two single unit…

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: [2015] QPEC 55
Decision Date: 13 November 2015

CaseChat Overview and Summary

In De Marco v Brisbane City Council, the appellants sought approval from the Brisbane City Council for a proposal that involved subdividing two lots into three lots, constructing two single unit dwellings, and carrying out a partial demolition of a house. The Brisbane City Council rejected the proposal on the basis that it would conflict with the planning scheme. The appellants appealed the council's decision to the Queensland Planning and Environment Court. The court was required to determine whether the proposal was consistent with the planning scheme, particularly focusing on whether the proposal would conflict with the planning scheme.

The court examined the planning scheme and relevant provisions to determine whether the proposal was consistent with the scheme. The court found that the proposal involved a reconfiguration of lots and building works that included a partial demolition of a house, which were all activities that required development consent under the planning scheme. The court then assessed whether the proposal complied with the planning scheme's provisions and considered the impact of the proposal on the surrounding environment and community. The court found that the proposal was consistent with the planning scheme and did not conflict with it.

Based on the court's findings, the appeal was dismissed, and the Brisbane City Council's decision was upheld. The court found that the appellants had not demonstrated that the proposal was consistent with the planning scheme or that the council's decision was unreasonable. The court's decision highlights the importance of ensuring that development proposals comply with the planning scheme and that development consent is obtained where necessary.

Orders

Orders of the court

Appeal dismissed.

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:	De Marco v Brisbane City Council & Ors [2015] QPEC 55
PARTIES:	ROBERT DE MARCO (Appellant) v BRISBANE CITY COUNCIL (Respondent) and STEWART LEWIS & ORS (Co-Respondents)
FILE NO/S:	4310 of 2014
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court of Queensland
DELIVERED ON:	13 November 2015
DELIVERED AT:	Brisbane
HEARING DATES:	21-23 September 2015
JUDGE:	Searles DCJ
ORDER:	Appeal dismissed.
CATCHWORDS:	PLANNING – RESIDENTIAL DEVELOPMENT – RECONFIGURATION OF LOTS – BUILDING WORKS – PARTIAL DEMOLITION - CONFLICT – Proposal involves subdividing two lots into three lots, building works for two single unit dwellings, and a partial demolition of a house – Whether proposal conflicts with planning scheme. Brisbane City Plan 2000 Brisbane City Plan 2014 Sustainable Planning Act 2009 (Qld) ss 314, 324, 326, 495 Maher v Hervey Bay City Council [2007] QPELR 123 Singh v Beaudesert Shire Council [2004] QPELR 16
COUNSEL:	S Fynes-Clinton for the Appellant M Williamson for the Respondent No appearance for the Co-Respondents
SOLICITORS:	Milne Legal for the Appellant Brisbane City Legal Practice for the Respondent