Edie v Brisbane City Council - [2023] QPEC 9

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Edie & Ors v Brisbane City Council & Anor [2023] QPEC 9

PARTIES:

SCOTT EDIE
(First Appellant)

KARI EDIE
(Second Appellant)

JARRAH GARD
(Third Appellant)

DAN GEORGE
(Fourth Appellant)

JESSICA GEORGE
(Fifth Appellant)

TAMARA MESSINBIRD
(Sixth Appellant)

TARA SEARLE
(Seventh Appellant)

MATTHEW SEARLE
(Eighth Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

ST. MAROUN’S MARONITE CHURCH BRISBANE
(Co-respondent)

FILE NO/S:

2301/21

DIVISION:

Planning and Environment

PROCEEDING:

Submitter appeal against approval

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

28 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

29 July – 5 August 2022, with further submissions received 9 August 2022 and 17 August 2022

JUDGE:

McDonnell DCJ

ORDER:

THE APPEAL IS ADJOURNED TO A DATE TO BE FIXED FOR REVIEW TO ENABLE THE PARTIES TO CONSIDER APPROPRIATE CONDITIONS OF APPROVAL

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – Appeal against decision to approve a development application for a development permit for a material change of use (place of worship, church hall and townhouses – parish residences) – where the existing Church is not fit for purpose – where the site is suitable for the proposed development – reasonable community expectations - whether the built form and scale of the proposed development is compatible with the planning intent - whether the development will result in unreasonable amenity impacts – whether proposed development is compliant with assessment benchmarks - whether the proposed development can be conditioned to achieve compliance with assessment benchmarks

CASES:

Abelda v Brisbane City Council [2020] QCA 257

Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2008] QPELR 342

Ashvan Investment Units Trust v Brisbane City Council & Ors [2019] QPELR 793

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317

Cannon Hill Investments Pty Ltd & Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor [2022] QCA 246

Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 006

Dexus Funds Management Ltd v Fabcot Pty Ltd [2021] QCA 95

Dreamline Development Corporation Pty Ltd v Brisbane City Council and Ors [2022] 169

Lennium Group Pty Ltd v Brisbane City Council [2019] QPELR 835

Murphy v Moreton Bay Regional Council and Anor [2020] QPELR 328

Seabridge Pty ltd t/as Clutha Creek Sands & Anor v Council of the Shire of Beadesert & Anor [2001]

Trinity Park Investments Pty Ltd v Cairns Regional Council;

Walters & Ors v Brisbane City Council & Anor [2019] QPELR 487

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2015] QPELR 21

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

Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16

LEGISLATION:

Panning Act 2016 (Qld) s 45(5), s 60

Planning and Environment Court Act2016 (Qld) s 43, s 45, s 46, s 47

Planning Regulation 2017 (Qld) s 31(1), sch 24

COUNSEL:

H.M.C Stephanos for the…

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: [2023] QPEC 9
Decision Date: 28 April 2023

CaseChat Overview and Summary

The Brisbane City Council approved a development application for a change of use permit for a site in Brisbane, intended for a place of worship, a church hall, and townhouses for parish residences. The applicant, Edie, sought to appeal this decision, arguing that the existing church was not fit for purpose and that the proposed development was not suitable for the site. The matter was heard in the Queensland Planning and Environment Court. The applicant's legal team contended that the proposed development's scale and built form were incompatible with the planning intent and would result in unreasonable amenity impacts. Additionally, they argued that the development did not comply with assessment benchmarks. The council, however, maintained that the development was suitable for the site and would not result in unreasonable amenity impacts.

The court considered the compatibility of the proposed development with the planning intent and whether the development would result in unreasonable amenity impacts. The court also considered whether the proposed development was compliant with the assessment benchmarks and whether it could be conditioned to achieve compliance. The court examined the suitability of the site for the proposed development and the reasonable community expectations for the area. The court held that the matter should be adjourned to allow the parties to consider appropriate conditions of approval to address the concerns raised by the applicant.

The court found that the proposed development was suitable for the site and that the applicant's concerns could be addressed through appropriate conditions. The court held that the development was compatible with the planning intent and would not result in unreasonable amenity impacts. The court also found that the development could be conditioned to achieve compliance with the assessment benchmarks. The court held that the matter should be adjourned to allow the parties to consider appropriate conditions of approval to address the concerns raised by the applicant.

The appeal was adjourned to a date to be fixed for review to enable the parties to consider appropriate conditions of approval. The court did not make any final orders but instead directed the parties to work together to develop conditions that would address the applicant's concerns while still allowing for the development to proceed. This outcome allowed for the applicant's concerns to be addressed while still enabling the development to proceed, providing a balanced outcome for all parties involved.

Orders

Orders of the court

THE APPEAL IS ADJOURNED TO A DATE TO BE FIXED FOR REVIEW TO ENABLE THE PARTIES TO CONSIDER APPROPRIATE CONDITIONS OF APPROVAL

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:	Edie & Ors v Brisbane City Council & Anor [2023] QPEC 9
PARTIES:	SCOTT EDIE (First Appellant) KARI EDIE (Second Appellant) JARRAH GARD (Third Appellant) DAN GEORGE (Fourth Appellant) JESSICA GEORGE (Fifth Appellant) TAMARA MESSINBIRD (Sixth Appellant) TARA SEARLE (Seventh Appellant) MATTHEW SEARLE (Eighth Appellant) v BRISBANE CITY COUNCIL (Respondent) ST. MAROUN’S MARONITE CHURCH BRISBANE (Co-respondent)
FILE NO/S:	2301/21
DIVISION:	Planning and Environment
PROCEEDING:	Submitter appeal against approval
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	28 April 2023
DELIVERED AT:	Brisbane
HEARING DATE:	29 July – 5 August 2022, with further submissions received 9 August 2022 and 17 August 2022
JUDGE:	McDonnell DCJ
ORDER:	THE APPEAL IS ADJOURNED TO A DATE TO BE FIXED FOR REVIEW TO ENABLE THE PARTIES TO CONSIDER APPROPRIATE CONDITIONS OF APPROVAL
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – Appeal against decision to approve a development application for a development permit for a material change of use (place of worship, church hall and townhouses – parish residences) – where the existing Church is not fit for purpose – where the site is suitable for the proposed development – reasonable community expectations - whether the built form and scale of the proposed development is compatible with the planning intent - whether the development will result in unreasonable amenity impacts – whether proposed development is compliant with assessment benchmarks - whether the proposed development can be conditioned to achieve compliance with assessment benchmarks
CASES:	Abelda v Brisbane City Council [2020] QCA 257 Acland Pastoral Co Pty Ltd v Rosalie Shire Council & Ors [2008] QPELR 342 Ashvan Investment Units Trust v Brisbane City Council & Ors [2019] QPELR 793 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 Cannon Hill Investments Pty Ltd & Australian Country Choice Production Pty Ltd v Brisbane City Council & Anor [2022] QCA 246 Development Watch Inc v Sunshine Coast Regional Council & Anor [2022] QCA 006 Dexus Funds Management Ltd v Fabcot Pty Ltd [2021] QCA 95 Dreamline Development Corporation Pty Ltd v Brisbane City Council and Ors [2022] 169 Lennium Group Pty Ltd v Brisbane City Council [2019] QPELR 835 Murphy v Moreton Bay Regional Council and Anor [2020] QPELR 328 Seabridge Pty ltd t/as Clutha Creek Sands & Anor v Council of the Shire of Beadesert & Anor [2001] Trinity Park Investments Pty Ltd v Cairns Regional Council; Walters & Ors v Brisbane City Council & Anor [2019] QPELR 487 Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2015] QPELR 21 Wilhelm v Logan City Council & Ors [2020] QCA 273 Wilmar Trading (Australia) Pty Ltd v Brisbane City Council & Anor [2022] QPEC 16
LEGISLATION:	Panning Act 2016 (Qld) s 45(5), s 60 Planning and Environment Court Act2016 (Qld) s 43, s 45, s 46, s 47 Planning Regulation 2017 (Qld) s 31(1), sch 24
COUNSEL:	H.M.C Stephanos for the…