Jackson v Brisbane City Council - [2017] QPEC 72

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Jackson v Brisbane City Council [2017] QPEC 72

PARTIES:

KIM JACKSON
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

5054 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 and 14 November 2017 and further written submissions received on 16 November 2017, 20 November 2017 and 21 November 2017

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where the appellant owns two long narrow lots in the low density residential zone – where the appellant made an application to realign the boundaries to achieve two square lots, including a rear lot of less than 600 square metres – where Council refused the development application for the reconfiguration of the lots – whether a decision to approve the proposed development would conflict with the planning scheme – whether the lots are appropriately sized and configured – whether the proposed development maintains a block pattern that accommodates traditional backyards – whether there are sufficient grounds to warrant approval despite the conflict

LEGISLATION:

Planning Act 2016 (Qld), s 107, s 164, s 288, s 311

Sustainable Planning Act 2009 (Qld), s 314, s 324, s 326, s 345, s 346, s 347, s 349, s 461, s 493, s 495

CASES:

Hillpalm Pty Ltd v Heavens Door Pty Ltd [2004] HCA (2004) 220 CLR 472, applied

Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335, applied

Rofail v Wells [2011] QPEC 125; [2011] QPELR 419, approved

Steendyk v Brisbane City Council & Ors [2016] QPEC 47; [2016] QPELR 868, approved

Sunshine Coast Regional Council v Sugarbag Road Pty Ltd & Anor [2011] QPEC 124; [2012] QPELR 139, approved

Tighe & Anor v Pike & Ors [2016] QCA 353, followed

Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, applied

COUNSEL:

D Whitehouse for the appellant

B D Job for the respondent

SOLICITORS:

Connor O’Meara for the appellant

Brisbane City Legal Practice for the respondent

TABLE OF CONTENTS

Introduction

The subject site and locality

The decision framework

The issues

City Plan

Conflict with the Subdivision code

Conflict with the Low density residential zone code

Nature and extent of conflict

Grounds

Proposed lot 1 and the retention of the existing building

Conclusion

Introduction

The appellant owns two long narrow lots at 36 – 38 Teesdale Street, Corinda, each approximately 10 metres wide and 40 metres long. She applied to Brisbane City Council (“Council”) to realign the boundaries to achieve two square lots. This appeal is against Council’s…

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 Jackson v Brisbane City Council 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: [2017] QPEC 72
Decision Date: 23 November 2017

CaseChat Overview and Summary

The case of Jackson v Brisbane City Council involves the appellant, who owns two long, narrow lots in a low-density residential zone. The appellant sought to realign the boundaries to create two square lots, including a rear lot of less than 600 square metres. The Brisbane City Council refused the development application for the reconfiguration of the lots. The central legal issue was whether approving the proposed development would conflict with the planning scheme and, if so, whether there were sufficient grounds to warrant approval despite this conflict.

The court examined whether the lots were appropriately sized and configured, and whether the proposed development would maintain a block pattern that accommodates traditional backyards. It considered the criteria for approving a development that conflicts with the planning scheme, including the need for the development to be in the public interest and the potential benefits it could bring to the community. The court found that the proposed development would not align with the objectives of the planning scheme, particularly in terms of lot configuration and the preservation of traditional backyards.

Ultimately, the court determined that the proposed development did conflict with the planning scheme. However, it held that there were insufficient grounds to warrant approval despite this conflict. The appeal was dismissed, and the decision of the Brisbane City Council to refuse the development application was upheld.

Orders

Orders of the court

The appeal is 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:	Jackson v Brisbane City Council [2017] QPEC 72
PARTIES:	KIM JACKSON (appellant) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	5054 of 2016
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	23 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 and 14 November 2017 and further written submissions received on 16 November 2017, 20 November 2017 and 21 November 2017
JUDGE:	Kefford DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where the appellant owns two long narrow lots in the low density residential zone – where the appellant made an application to realign the boundaries to achieve two square lots, including a rear lot of less than 600 square metres – where Council refused the development application for the reconfiguration of the lots – whether a decision to approve the proposed development would conflict with the planning scheme – whether the lots are appropriately sized and configured – whether the proposed development maintains a block pattern that accommodates traditional backyards – whether there are sufficient grounds to warrant approval despite the conflict
LEGISLATION:	Planning Act 2016 (Qld), s 107, s 164, s 288, s 311 Sustainable Planning Act 2009 (Qld), s 314, s 324, s 326, s 345, s 346, s 347, s 349, s 461, s 493, s 495
CASES:	Hillpalm Pty Ltd v Heavens Door Pty Ltd [2004] HCA (2004) 220 CLR 472, applied Lockyer Valley Regional Council v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors; Keep Lockyer Rural Inc v Westlink Pty Ltd as Trustee for Westlink Industrial Trust & Ors [2012] QCA 370; [2013] 2 Qd R 302, applied Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 335, applied Rofail v Wells [2011] QPEC 125; [2011] QPELR 419, approved Steendyk v Brisbane City Council & Ors [2016] QPEC 47; [2016] QPELR 868, approved Sunshine Coast Regional Council v Sugarbag Road Pty Ltd & Anor [2011] QPEC 124; [2012] QPELR 139, approved Tighe & Anor v Pike & Ors [2016] QCA 353, followed Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, applied
COUNSEL:	D Whitehouse for the appellant B D Job for the respondent
SOLICITORS:	Connor O’Meara for the appellant Brisbane City Legal Practice for the respondent