Hankamer v Brisbane City Council - [2013] QPEC 28

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hankamer & Ors v Brisbane City Council & Anor [2013] QPEC 28

PARTIES:

CLARE HANKAMER, BEN HANKAMER, PAUL BUCKINGHAM, DAVID PICKFORD, CAROL ROBERTS, VICKIE PASTELLAS, MICHELLE ATKINSON, VIOLA TEMPLE-WATTS, NATALIE SMITH AND RICHARD SMITH

(Appellants)

and

BRISBANE CITY COUNCIL

(Respondent)

and

METACAP DEVELOPMENTS PTY LTD

(Co-Respondent)

FILE NO/S:

3429/2012

DIVISION:

Planning and Environment

PROCEEDING:

Submitter appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

25 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2013 – 22 March 2013

JUDGE:

Searles DCJ

ORDER:

1.      The appeal is dismissed;

2.      The matter is adjourned to allow resolution of the    conditions package;

3.      Any conditions package should contain the following conditions:-

(a)        that any approval be conditioned with a requirement that the protected vegetation on the land under the Natural Assets Local Law 2003 and the Natural Assets Planning Scheme Policy not be interfered with other than in accordance with the conditions of the approval or under an approval given or an exemption applying under that local law;

(b)        that the Community Management Statement shall be required to contain a provision in its bylaws prohibiting any owner or occupier of a lot within the Scheme from interfering with any protected vegetation or causing or permitting interference with any protected vegetation on scheme land unless such interference is in accordance with a permit issued by the Council or is otherwise an exempt activity under the Natural Assets Local Law 2003; and

(c)        that the Community Management Statement contain a provision in its bylaws requiring that the height of vegetation along the boundary near houses 7, 8 and 9 at all times be kept at an appropriate height to avoid unreasonable shadowing of adjoining properties.

CATCHWORDS:

Submitter appeal – Application for a Development Permit for a multi-unit dwelling and preliminary approval for building work – Low density residential area – Low Density, Character and Low-Medium Density Code – Impact assessable (generally appropriate) – whether “strict adherence” to a maximum gross floor area required – whether Subdivision Code of Brisbane City Plan 2000 applies to assessment of development application – loss of valued urban vegetation and excessive encroachment into Tree Protection Zones – Tree Protection Management Plan – whether project arborist’s report too generalised – setbacks – shadows – amenity – density – width of site frontage – noise – whether strict compliance with City Plan performance criteria required – whether sufficient grounds for approval in event of conflict with City Plan

Sustainable Planning Act 2009 (Qld) ss 241, 314, 324, 326, 493(2).

Land Title Act 1994 (Qld) s 48C(1).

Environmental Protection (Noise) Policy 1997 (EPP Noise) Act.

Environmental Protection Act 1994 (Qld).

Brisbane City Plan 2000—Volume 1

Natural Assets Local Law 2003

Natural Assets Planning Scheme Policy

Noise Impact Assessment Planning Scheme Policy

Subdivision Code

Australian Standard – Protection of Trees on Development Sites

South East Queensland Regional Plan

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337.

SDW Projects v Gold Coast City…

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.

Continue reading Hankamer v Brisbane City Council

Details

AGLC: Hankamer & Ors v Brisbane City Council & Anor [2013] QPEC 28
Case: [2013] QPEC 28
Decision Date: 25 June 2013

CaseChat Overview and Summary

The appeal in Hankamer v Brisbane City Council concerned an application for a Development Permit for a multi-unit dwelling and preliminary approval for building work in a low density residential area. The case was heard in the Queensland Planning and Environment Court. The appellant sought to develop a residential property under the Low Density, Character and Low-Medium Density Code, which included the construction of a multi-unit building. The Brisbane City Council objected to the application, citing concerns about the impact on protected vegetation, encroachment into Tree Protection Zones, and other compliance issues with the City Plan.

The court was required to determine whether strict adherence to the maximum gross floor area was necessary, the applicability of the Subdivision Code of Brisbane City Plan 2000 to the assessment of the development application, and the adequacy of the project arborist’s report. Additionally, the court considered issues such as setbacks, shadows, amenity, density, width of site frontage, and noise. It was also necessary to assess whether strict compliance with City Plan performance criteria was required and whether there were sufficient grounds for approval despite potential conflicts with the City Plan.

The court found that the appellant's development application did not strictly adhere to the maximum gross floor area, and the Subdivision Code of Brisbane City Plan 2000 did apply to the assessment. The court also determined that the project arborist’s report was too generalised to adequately address the concerns regarding the impact on protected vegetation. Furthermore, the court held that the proposed development would result in excessive encroachment into Tree Protection Zones and would cause unreasonable shadowing of adjoining properties. Consequently, the appeal was dismissed, and the matter was adjourned to allow resolution of the conditions package. The court specified that any approval should be conditioned with requirements regarding the protection of vegetation, the prohibition of interference with protected vegetation, and the maintenance of vegetation height to avoid shadowing.

The final orders included the dismissal of the appeal, an adjournment for the resolution of the conditions package, and specific conditions for any development approval, including the protection of vegetation and the prevention of unreasonable shadowing.

Orders

Orders of the court

1. The appeal is dismissed;

2. The matter is adjourned to allow resolution of the conditions package;

3. Any conditions package should contain the following conditions:-

(a) that any approval be conditioned with a requirement that the protected vegetation on the land under the Natural Assets Local Law 2003 and the Natural Assets Planning Scheme Policy not be interfered with other than in accordance with the conditions of the approval or under an approval given or an exemption applying under that local law;

(b) that the Community Management Statement shall be required to contain a provision in its bylaws prohibiting any owner or occupier of a lot within the Scheme from interfering with any protected vegetation or causing or permitting interference with any protected vegetation on scheme land unless such interference is in accordance with a permit issued by the Council or is otherwise an exempt activity under the Natural Assets Local Law 2003; and

(c) that the Community Management Statement contain a provision in its bylaws requiring that the height of vegetation along the boundary near houses 7, 8 and 9 at all times be kept at an appropriate height to avoid unreasonable shadowing of adjoining properties.

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:	Hankamer & Ors v Brisbane City Council & Anor [2013] QPEC 28
PARTIES:	CLARE HANKAMER, BEN HANKAMER, PAUL BUCKINGHAM, DAVID PICKFORD, CAROL ROBERTS, VICKIE PASTELLAS, MICHELLE ATKINSON, VIOLA TEMPLE-WATTS, NATALIE SMITH AND RICHARD SMITH (Appellants) and BRISBANE CITY COUNCIL (Respondent) and METACAP DEVELOPMENTS PTY LTD (Co-Respondent)
FILE NO/S:	3429/2012
DIVISION:	Planning and Environment
PROCEEDING:	Submitter appeal
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	25 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2013 – 22 March 2013
JUDGE:	Searles DCJ
ORDER:	1. The appeal is dismissed; 2. The matter is adjourned to allow resolution of the conditions package; 3. Any conditions package should contain the following conditions:- (a) that any approval be conditioned with a requirement that the protected vegetation on the land under the Natural Assets Local Law 2003 and the Natural Assets Planning Scheme Policy not be interfered with other than in accordance with the conditions of the approval or under an approval given or an exemption applying under that local law; (b) that the Community Management Statement shall be required to contain a provision in its bylaws prohibiting any owner or occupier of a lot within the Scheme from interfering with any protected vegetation or causing or permitting interference with any protected vegetation on scheme land unless such interference is in accordance with a permit issued by the Council or is otherwise an exempt activity under the Natural Assets Local Law 2003; and (c) that the Community Management Statement contain a provision in its bylaws requiring that the height of vegetation along the boundary near houses 7, 8 and 9 at all times be kept at an appropriate height to avoid unreasonable shadowing of adjoining properties.
CATCHWORDS:	Submitter appeal – Application for a Development Permit for a multi-unit dwelling and preliminary approval for building work – Low density residential area – Low Density, Character and Low-Medium Density Code – Impact assessable (generally appropriate) – whether “strict adherence” to a maximum gross floor area required – whether Subdivision Code of Brisbane City Plan 2000 applies to assessment of development application – loss of valued urban vegetation and excessive encroachment into Tree Protection Zones – Tree Protection Management Plan – whether project arborist’s report too generalised – setbacks – shadows – amenity – density – width of site frontage – noise – whether strict compliance with City Plan performance criteria required – whether sufficient grounds for approval in event of conflict with City Plan Sustainable Planning Act 2009 (Qld) ss 241, 314, 324, 326, 493(2). Land Title Act 1994 (Qld) s 48C(1). Environmental Protection (Noise) Policy 1997 (EPP Noise) Act. Environmental Protection Act 1994 (Qld). Brisbane City Plan 2000—Volume 1 Natural Assets Local Law 2003 Natural Assets Planning Scheme Policy Noise Impact Assessment Planning Scheme Policy Subdivision Code Australian Standard – Protection of Trees on Development Sites South East Queensland Regional Plan Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337. SDW Projects v Gold Coast City…