Eames v Brisbane City Council - [2010] QPEC 14

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:Eames v Brisbane City Council & Anor [2010] QPEC 14

PARTIES: ANNE-MAREE EAMES
(Appellant)

v
BRISBANE CITY COUNCIL
(Respondent)
And
PROMOSEVEN PTY LTD
(Co-Respondent)

FILE NO/S: No 1688 of 2009

ORIGINATING COURT: Brisbane

DELIVERED ON: 25 February 2010

DELIVERED AT: Brisbane

JUDGE: Rackemann DCJ

ORDER: Preliminary point determined in favour of the Co-Respondent

CATCHWORDS: Whether application properly made – land included volumetric lot for access – no owners consent for that lot – whether owners consent was required – whether development inconsistent with the terms of an easement – nature of “development” applied for.

COUNSEL: Mr Fynes-Clinton for the Appellant

Mr Trotter for the Respondent
Mr Litster SC and Mr Cronin for the Co-Respondent

HIS HONOUR: This submitter appeal is against the respondent's approval of a development application by the co‑respondent in respect of a multi‑unit development at Coronation Drive, Toowong. The appellant has raised a jurisdictional point for determination at a preliminary stage.

The development application was for a development permit for a material change of use, and for preliminary approvals for building work and operational work. The proposal is to replace an existing two‑storey multi‑unit dwelling (of four dwellings) with a new nine-storey building containing nine three-bedroom dwellings.

The land which was identified as being the subject of the development application is lot 24 on SP 114135 (lot 24)- upon which the new building is proposed to be developed- and a volumetric area above lot 40 on SP 139833 (lot 40) in respect of which there are easements. That volumetric lot was created in conjunction with a development known as "Regatta Riverside". It provides the sole means of vehicle access to the site from Land Street. There is no vehicle access to or from Coronation Drive.

The appellant contends that the development application was not a properly made application within the meaning of section 3.2.1(7) of the Integrated Planning Act (IPA), and could not have been taken to be a properly made application under section 3.2.1(9), because it did not contain the written consent of the owner of what I will refer to as lot 40 (see section 3.2.1(10)).

The point is not taken by the owner from whom it is said that consent ought to have been obtained. The owner is the body corporate for the Regatta Riverside development. Lot 40 also provides access to that development to and from Land Street. The appellant is not the owner of lot 40; she is the owner of adjoining land which has the benefit of its own easement over lot 40. She, nevertheless, takes the jurisdictional point, somewhat opportunistically, although I do not say improperly.

The deficiency in the application (if there be one) is, it was accepted, not curable under section 4.1.5A of the IPA. It was common ground that the new broader excusal power under section 820 of the Sustainable Planning Act (SPA) is not available in this appeal, which is not of a kind referred to in section 819(4)…

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: [2010] QPEC 14
Decision Date: 25 February 2010

CaseChat Overview and Summary

Eames v Brisbane City Council is an appeal brought by Anne-Maree Eames against the Brisbane City Council and Promoseven Pty Ltd, contesting the approval of a development application by the latter for a multi-unit residential building at Coronation Drive, Toowong. The central issue revolves around whether the development application was properly made, particularly concerning the necessity of obtaining the consent of the owner of lot 40, which serves as the sole means of vehicle access to the proposed site. Eames argues that the application was improperly made because it lacked the written consent of the owner of lot 40, as required by section 3.2.1(10) of the Integrated Planning Act (IPA). The respondents counter that the owner’s consent was not necessary because the development is not inconsistent with the terms of the easements that benefit the proposed site.

The Court examined whether the proposed development, which involves increasing the intensity of residential use from four to nine dwellings, is inconsistent with the easements. The respondents argued that the use of lot 40 for access purposes is consistent with the easements, even if refuse collection trucks stop on the easement to collect bins. Eames contended that such stopping is inconsistent with the easements. The Court concluded that the proposed increase in the scale of residential use does not inherently conflict with the easements, as the method of refuse collection, including stopping on the easement, is not a consequence of the change in use. The Court found no inconsistency between the proposed development and the terms of the easements, determining the jurisdictional point in favour of the co-respondent.

In light of this determination, the matter was adjourned for review to allow further consideration of the development application in accordance with the Court’s findings.

Orders