Donavon v Brisbane City Council

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Donavon v Brisbane City Council [2020] QPEC 9

PARTIES:

RAYLENE GAYLE DONAVON
(applicant)
v
BRISBANE CITY COUNCIL
(first respondent)
and
NICHOLAS ANDREW BUCKLE AND MARGARET HELEN JOSE-BUCKLE
(second respondents)

FILE NO/S:

BD1146/2016

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

20 March 2020

DELIVERED AT:

Brisbane

HEARING DATES:

2, 3, 4 and 5 March 2020

JUDGE:

R S Jones DCJ

ORDER:

1.   The application is dismissed.

2.   I will hear further from the parties, if necessary, as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – PERMISSIBLE CHANGE APPLICATION– where the applicant and second respondents are adjoining neighbours – where applicant seeks a development application for reconfiguration of a Lot – where applicant proposes to construct a two story garage – whether request requires consent by second respondents – whether the requested change does not materially affect the second respondents’ land – whether court has power to grant request – whether court has power to impose conditions.

LEGISLATION:

Sustainable Planning Act 2009 (Qld) ss 7, 10, 236, 345, 369, 371, 374, 375, 440

CASES:

Bon Accord v Brisbane City Council [2010] QPELR 23
Cox v Maroochy Shire Council [2006] QPEC 51
Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 385
Peet Flagstone City Pty Ltd v Logan City Council & Ors [2014] QCA 210
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014
Walden v Logan City Council [2015] QPELR 640
Western Australia Planning Commission v Temwood Holdings Pty Ltd 221 CLR 30

COUNSEL:

Mr A Skoien for the applicant
Mr P Van Eps for the first respondent
Mr M Batty for the second respondents

SOLICITORS:

Pan and Partners for the applicant
City Legal for the first respondent
Connor O’Meara for the second respondents

1. This proceeding is concerned with an application pursuant to s 369(1)(d) of the now superseded Sustainable Planning Act 2009 (SPA) for a permissible change to an existing development approval given by this Court on 20 October 2004.  For the reasons set out below the orders of the court are:

1. The application is dismissed

1. I will hear further from the parties, if necessary, as to any consequential orders.

Background

1. On 20 October 2005, Judge Wilson SC (as he then was) made orders to facilitate the reconfiguration of one Lot into two.[1]  Of particular significance is that under the heading “Ecology” it was a condition of approval that specific Building Location Envelopes (BLE) were identified and that:

“No part of any building, associated outbuildings and other structures (including swimming pools, tennis courts, retaining walls, excavation, filling, car parking, on-site waste disposal areas or the like) other than a fence or an access way for motor vehicles directly from the access/street to the dwelling, is to be located on any part of the site outside of the approved Building Location Envelope (BLE)…”

[1]Exhibit 3.

1. The result was that…