Handley v Brisbane City Council - [2004] QPEC 39

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Handley v Brisbane City Council & Pike Mirls McNoulty Pty Ltd [2004] QPEC 039

PARTIES:

ELIZABETH HANDLEY
Appellant

V

BRISBANE CITY COUNCIL
Respondent
And
PIKE MIRLS McNOULTY PTY LTD
ABN 010 370 448

Co-respondent

FILE NO:

BD 4025 of 2003

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

30 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22, 23, 24, and 28 June 2004

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for residential development on old Milton Tennis Courts site – proposed development categorised as “generally inappropriate” under Planning Scheme – whether proposal is nevertheless an acceptable one having regard to specific criteria in the Planning Scheme – whether conflict with Planning Scheme – whether sufficient planning grounds to approve proposal despite conflict

PLANNING AND ENVIRONMENT – PLANNING SCHEME – CONSTRUCTION OF PLANNING SCHEMES – application of Integrated Planning Act 1997, s 3.5.14(2) when Planning Scheme sets up precise criteria against which “generally inappropriate” development is to be tested

Integrated Planning Act 1997
Brisbane City Plan 2000

Cases considered:

Beck v Council of the Shire of Atherton (1991) QPELR 56

Broad v Brisbane City Council (1986) 2 Qd R 317
Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153
Indooroopilly Golf Club v Brisbane City Council (1982) QPELR 12
Koerner v Maroochy Shire Council (2003) QPEC 054
Leggett v Brisbane City Council (2002) QPELR 285
Playfaire Projects Australia Pty Ltd v Council of the Shire of Maroochy (1991) QPELR 87
SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36
Weightman v Gold Coast City Council (2002) 121 LGERA 161

COUNSEL:

Mr S Keliher for the appellant
Mr T Trotter for the respondent
Mr D Gore QC and Mr Litster for the co-respondent

SOLICITORS:

Robert Milne Legal for the appellant
Brisbane City Legal Practice for the respondent
Minter Ellison for the co-respondent

This is a submitter appeal against Council’s approval of the co-respondent’s application to redevelop the former Milton Tennis Courts site for residential purposes. The co-respondent carries the onus, under the Integrated Planning Act 1997 (IPA), of establishing that the appeal should be dismissed[1].
[1]IPA, S 4.1.50(2).

The land is essentially level save for a small portion in the north-east corner on Milton Road. It is presently comprised of 22 allotments containing a total area of 29,250m² and has frontages of approximately 176 metres along Milton Road, 20 metres to Lucy Street, and 17 to Frew Street. On the north-east side it is bordered by the rear and side boundaries of dwellings in Wight and Lucy Streets, and on the south-west by the rear boundaries of premises in Torwood Street. Just within that south-west boundary there is underground drainage carrying Western Creek (on its journey to the Brisbane River) beneath the site. An indoor bowling alley lies at the west, on Frew Street.

For decades…

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: [2004] QPEC 39
Decision Date: 30 August 2004

CaseChat Overview and Summary

In the matter of Handley v Brisbane City Council, the dispute revolved around an application for a residential development on the site of the old Milton Tennis Courts. The Brisbane City Council had categorised the proposed development as "generally inappropriate" under the existing Planning Scheme. The central issue for the court was whether the proposal could still be considered acceptable based on specific criteria outlined in the Planning Scheme, despite being deemed inappropriate. Additionally, the court had to determine if there was a conflict between the proposed development and the Planning Scheme, and if there were sufficient planning grounds to approve the proposal despite this conflict.

The court examined the Integrated Planning Act 1997, particularly section 3.5.14(2), which provides guidelines on how to interpret Planning Schemes. The court found that the Planning Scheme established precise criteria against which developments deemed "generally inappropriate" must be assessed. Based on this analysis, the court concluded that the proposal did not meet the criteria necessary to be considered acceptable. Consequently, the court found that there was indeed a conflict between the proposed development and the Planning Scheme. Furthermore, the court determined that there were insufficient planning grounds to approve the proposal despite the conflict with the Scheme.

As a result of the court's reasoning, the appeal was dismissed. The decision underscored the importance of adhering to the criteria set out in the Planning Scheme when assessing developments categorised as "generally inappropriate". The court's findings reinforced the need for developers to demonstrate compliance with the specific criteria to overcome the presumption against such developments.

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:	Handley v Brisbane City Council & Pike Mirls McNoulty Pty Ltd [2004] QPEC 039
PARTIES:	ELIZABETH HANDLEY Appellant V BRISBANE CITY COUNCIL Respondent And PIKE MIRLS McNOULTY PTY LTD ABN 010 370 448 Co-respondent
FILE NO:	BD 4025 of 2003
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	30 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21, 22, 23, 24, and 28 June 2004
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for residential development on old Milton Tennis Courts site – proposed development categorised as “generally inappropriate” under Planning Scheme – whether proposal is nevertheless an acceptable one having regard to specific criteria in the Planning Scheme – whether conflict with Planning Scheme – whether sufficient planning grounds to approve proposal despite conflict PLANNING AND ENVIRONMENT – PLANNING SCHEME – CONSTRUCTION OF PLANNING SCHEMES – application of Integrated Planning Act 1997, s 3.5.14(2) when Planning Scheme sets up precise criteria against which “generally inappropriate” development is to be tested Integrated Planning Act 1997 Brisbane City Plan 2000 Cases considered: Beck v Council of the Shire of Atherton (1991) QPELR 56 Broad v Brisbane City Council (1986) 2 Qd R 317 Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 Indooroopilly Golf Club v Brisbane City Council (1982) QPELR 12 Koerner v Maroochy Shire Council (2003) QPEC 054 Leggett v Brisbane City Council (2002) QPELR 285 Playfaire Projects Australia Pty Ltd v Council of the Shire of Maroochy (1991) QPELR 87 SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36 Weightman v Gold Coast City Council (2002) 121 LGERA 161
COUNSEL:	Mr S Keliher for the appellant Mr T Trotter for the respondent Mr D Gore QC and Mr Litster for the co-respondent
SOLICITORS:	Robert Milne Legal for the appellant Brisbane City Legal Practice for the respondent Minter Ellison for the co-respondent