Jezreel Pty Ltd v Brisbane City Council - [2000] QPEC 51

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION: Jezreel Pty. Ltd. v. Brisbane City Council & Anor [2000]
QPE 051
PARTIES: JEZREEL PTY LTD
Applicant
v
BRISBANE CITY COUNCIL
First Respondent
and
CORNERSTONE PROPERTIES LTD
Second Respondent
FILE NO/S: Application No. 2971 of 2000 and Appeal No. 2613 of 2000
DIVISION: Planning and Environment Court
PROCEEDING: Application for declaratory relief
ORIGINATING Brisbane
COURT:
DELIVERED ON: 8th September 2000
DELIVERED AT: Brisbane
HEARING DATE: 18th. August 2000
JUDGE: Judge Quirk
ORDER: Application and Appeal dismissed.
CATCHWORDS:
COUNSEL: Mr. J Haydon for the appellant.
Mr. M Hinson SC for the first respondent.
Mr C. Hughes for the second respondent.
SOLICITORS: Nicol Robinson Halletts for the appellant.
Brisbane City Legal Practice for the first respondent.
Phillips Fox Lawyers for the second respondent.

In this matter Jezreel Pty Ltd has lodged both an appeal and an application for
declaratory relief in respect of a decision by the respondent Brisbane City Council
to approve an application for a development permit for a material change of use of
land at the northern end of Turbot Street.
For the purposes of disposing of these proceedings it is sufficient to say that the
proposed development was for a shopping centre, business premises and ancillary
carparking. In the Town Plan the subject land is included in the Central Business
zone.
A number of rulings were sought. I will consider each of them separately dealing
firstly with those raised in the originating application.
Was the application to the Council competent?
The contention of Jezreel that the application was not lawfully made appears to be
based on the assertion that certain provisions of the Town Plan do not allow, in the
Central Business zone, carparking to the extent that is provided by the proposal.
Attention is drawn to sections of the Town Plan which provide as follows:
“18.5 Vehicle Parking within a Site

18.5.1

It shall be a requirement of every development that at all times while the use continues there shall be provided a car parking area on the site –

(a) in a case where the site is within the Central Business Zone, not more than one car space for every 200 square metres of gross floor area; or
(b) in any other case in accordance with the requirements in Column 2 of Table 18.2 as they apply to the purpose specified in Column 1 of that Table.
18.5.1A Council may at is discretion relax the requirement of Paragraph 18.5.1(a) where the development is for a residential purpose”.

The carparking intended here exceeds the standard of one space for every 200
square metres of gross floor area and is “incidental to and necessarily associated
with” the shopping centre and business premises. That is made clear by condition 45 of the Council’s approval which requires that the carpark does not operate as a
public carpark.
I have some difficulty with the proposition that an application for some form of
development inconsistent with a planning scheme is an incompetent application.
While…

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 Jezreel Pty Ltd v Brisbane City Council

Details

AGLC: Jezreel Pty Ltd v Brisbane City Council [2000] QPEC 51
Case: [2000] QPEC 51
Decision Date: 8/09/2000

CaseChat Overview and Summary

Jezreel Pty Ltd sought to challenge the decision of the Brisbane City Council, which approved a planning application by another party. The primary concern raised by Jezreel was whether the Council had properly considered relevant matters during the public scrutiny period and whether the Council’s decision involved a jurisdictional error by failing to consider a matter it should have or by reaching an unreasonable decision. Jezreel also argued that the Council should have considered the need and demand for the development, as set out in section 24.3.3 of the Town Plan. The legal issues before the court were whether the Council's decision was tainted by procedural errors and whether it was unreasonable or failed to consider relevant matters.

The court examined whether the public scrutiny procedures were properly followed and found that the relevant material was indeed available for inspection as required by the Act. The court held that there was no evidence of any deliberate attempt to frustrate the Act’s intention and, therefore, did not find the procedures miscarried. Regarding the jurisdictional error, the court noted that section 24.3.3 of the Town Plan, which lists matters to be considered, does not explicitly include "need" and that "need" in planning law is broader than mere economic impact. The court further found that the Council’s decision to approve the planning application was not unreasonable, and that it had considered relevant matters within the context of the statutory framework.

The court concluded that Jezreel’s contention that the Council failed to consider a relevant matter was flawed because the statutory provisions did not mandate the consideration of "need" in the way Jezreel argued. Additionally, the Council’s decision was reasonable within the parameters of the Act. Consequently, the court dismissed both the application and the appeal.

ORDERS:
The court dismissed the application and appeal, finding no procedural errors or jurisdictional flaws in the Council’s decision. The approval of the planning application by the Brisbane City Council was upheld.

Orders

Orders of the court

Application and Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I have indicated, other material shows that, during the relevant period of “public scrutiny” the relevant material was where it should have been and available for inspection as required by the Act. I can think of no plausible reason for any deliberate attempt (by anyone) to frustrate the Act’s intention in this context and am not prepared to hold that the “public scrutiny” procedures have miscarried in this case in a way that would render the Council’s decision void. Was the Council’s decision otherwise invalid? In this context it was said that the Council’s decision involved “jurisdictional error” (Craig v South Australia (1995) 184 CLR 163) in that, in reaching its decision, the Council failed to take into account a matter that it should have or that it was a decision so unreasonable that no reasonable Council could have reached that decision (Parramatta City Council v Pestell (1972) 128 CLR 305 at 327). Attention was drawn to the Council’s adoption of a recommendation of the Urban Planning Committee that included, in part, the following statement: “In the light of the site’s position within the Central Business District an assessment of the need for the development is not appropriate. A shopping centre is an ‘as of right’ use in this location”. It was pointed out that, even in respect of an application which is code assessable, it is open to the Council to impose conditions that limit the floor space of a shopping centre (a matter in which Jezreel, a commercial competitor, is particularly interested). Jezreel’s contention that a relevant matter had been ignored was based on a submission that s.24.3.3 of the Town Plan made need and demand relevant and necessary matters for consideration of this application. There are a number of weaknesses in this submission. Section 24.3.3 certainly sets out to identify “matters to be considered in deciding an application (for the notification of conditions)”. However the section’s introductory words contain important words of qualification. These words are: “The following matters, to the extent they are relevant to the proposal the subject of an application, shall be considered by the Council in deciding the application”. Furthermore, within s.24.3.3 there is no reference to “need” although “economic impact” is mentioned in sub-s.(e)(vi). The argument of Jezreel seems to suppose that these concepts are co-extensive but this is not so. A long line of cases in this court established that “need” (in a planning sense), a consideration relevant to an application to amend a planning scheme, involved a demonstration that it was in the community’s interests that the scheme should be so amended. Section 4.4.(3) of the now repealed Local Government (Planning and Environment) Act, in identifying the considerations relevant to a proposed planning scheme amendment refers, in (3)(b) to: “The balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jezreel Pty. Ltd. v. Brisbane City Council & Anor [2000] QPE 051
PARTIES:	JEZREEL PTY LTD Applicant v BRISBANE CITY COUNCIL First Respondent and CORNERSTONE PROPERTIES LTD Second Respondent
FILE NO/S:	Application No. 2971 of 2000 and Appeal No. 2613 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Application for declaratory relief
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	8th September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	18th. August 2000
JUDGE:	Judge Quirk
ORDER:	Application and Appeal dismissed.
CATCHWORDS:
COUNSEL:	Mr. J Haydon for the appellant. Mr. M Hinson SC for the first respondent. Mr C. Hughes for the second respondent.
SOLICITORS:	Nicol Robinson Halletts for the appellant. Brisbane City Legal Practice for the first respondent. Phillips Fox Lawyers for the second respondent.

18.5.1	It shall be a requirement of every development that at all times while the use continues there shall be provided a car parking area on the site –
(a)	in a case where the site is within the Central Business Zone, not more than one car space for every 200 square metres of gross floor area; or
(b)	in any other case in accordance with the requirements in Column 2 of Table 18.2 as they apply to the purpose specified in Column 1 of that Table.