Eschenko v Cummins - [2000] QPEC 37

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT SOUTHPORT

QUEENSLAND P&E-APPEAL NO. 359/1999

Before NEWTON, D.C.J.

[RE: LEONID ESCHENKO – V – MARY ELIZABETH CUMMINS & ANOR] [2000] QPE 037

BETWEEN LEONID ESCHENKO

Applicant

AND MARY ELIZABETH CUMMINS

First Respondent

AND GOLD COAST CITY COUNCIL

Second Respondent

AND STEWART PAYNE AND STEWART PAYNE
ARCHITECTS PTY LTD

Third Respondents

REASONS FOR JUDGMENT

Judgment delivered: 13 June 2000

Catchwords: Town Planning – relaxation of setback requirements – clause 36 Standard Building Regulation – whether approval of relaxation application was granted
a)without reference to applicant;
b)without consideration of impact on applicant’s property;
c)as a result of travel on part of third respondents.

Requirement that buildings in proximity to ocean beach have footings resistant to erosion. Whether dwelling constructed in non-compliance with s.13.19.2.1(I) of Planning Scheme

Counsel:  Mr P J Lyons Q.C. for the Applicant
  Mr M D Hinson S.C. for the First Respondent
  Mr R S Litster for the Second Respondent
  Mr B Cronin for the Third Respondent

Solicitors:                  Michael Podmore & Associates for the Applicant
  Holyoake & Associates for the First Respondent
  McDonald Balanda & Arcuri for the Second Respondent
  Primrose Couper Cronin Rudkin for the Third Respondents

Hearing Dates: 7 and 8 June, 8-11 and 19 November 1999, 24 and 25 February 2000

IN THE PLANNING & ENVIRONMENT COURT

HELD AT SOUTHPORT

QUEENSLAND P&E APPEAL NO. 359/1999

BETWEEN LEONID ESCHENKO

Applicant

AND MARY ELIZABETH CUMMINS

First Respondent

AND GOLD COAST CITY COUNCIL

Second Respondent

AND

STEWART PAYNE AND STEWART PAYNE
ARCHITECTS PTY LTD

Third Respondents

REASONS FOR JUDGMENT – NEWTON D.C.J.

(Delivered on the 13^th day of June 2000)

REASONS FOR JUDGMENT - NEWTON D.C.J.

INTRODUCTION

The applicant owns property at 219-221 Hedges Avenue, Mermaid Beach. The first respondent owns the property adjacent to and to the south of the applicant’s property. Both properties enjoy absolute beachfront positions on an exceptionally beautiful part of the Gold Coast. The second respondent is the local government responsible for administering the relevant planning scheme which was gazetted in February, 1994. The third respondents have been joined in these proceedings in respect of a claim that a development approval obtained in respect of the first respondent’s property was obtained by fraud.

On 7 April, 1998 the third respondents, on behalf of the first respondent, made an application for approval of building works involving alterations and extensions to the dwelling then existing on the first respondent’s land (Lot 168). The works were particularised in drawings numbered 1 to 8 (inclusive) prepared by the third respondents.

On 13 May, 1998 the third respondents applied for preliminary approval of boundary relaxations in relation to the proposed works. This application was accompanied by a letter dated 12 May, 1998 from the third respondents confirming a request for boundary relaxation made on behalf of the first respondent.

On 20 May, 1998 a number of officers of the second respondent, and others, undertook a site inspection for the purpose of considering the relaxation application. On the same date 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.

Keep reading for free

Create a free CaseChat account to read Eschenko v Cummins and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] QPEC 37
Decision Date: 13/06/2000

CaseChat Overview and Summary

Leonid Eschenko sought to challenge the approvals granted by the Gold Coast City Council to Mary Elizabeth Cummins in relation to alterations and extensions to her beachfront property. The applicant claimed that the Council's decision to relax the setback requirements was invalid, as it had not been made in accordance with the law. Specifically, the applicant alleged that the Council's decision was made without reference to the applicant, without consideration of the impact on the applicant's property, and as a result of fraud on the part of the third respondents, who were the architects of the proposed works. The applicant further claimed that the dwelling constructed on the respondent's property had been built in breach of the Planning Scheme and the Standard Building Regulation.

The court held that the Council's decision to relax the setback requirements was valid, as it was reasonably open to the Council to grant such approval. The court found that the Council had considered the relevant statutory requirements in making its decision, and that the decision was not based on irrelevant considerations or one that no reasonable Council could have granted. The court also found that the applicant had failed to establish that the approval was obtained by fraud, as the representations made by the architects were honestly made. The court further held that the dwelling constructed on the respondent's property had been built in breach of the Planning Scheme, as it had not complied with the requirements for building footings resistant to erosion.

In conclusion, the court dismissed the application for a declaration of invalidity, with respect to the Council's relaxation of the setback requirements. The court also dismissed the application for a declaration that the dwelling had been constructed contrary to the Standard Building Regulation, and for an order cancelling the approval granted to the respondent. However, the court upheld the application for a declaration that the dwelling had been constructed in breach of the Planning Scheme. The applicant's claim for a demolition order was refused, as the court did not have jurisdiction to make such an order in the absence of an application by the Council as the assessing authority.

Orders