JRD No 2 Pty Ltd v Brisbane City Council & Ors

Case [2020] QPEC 4


PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND


CITATION:

JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4

PARTIES:

JRD NO 2 PTY LTD ACN 618 080 309 AS TRUSTEE FOR THE JRD NO 2 PROPERTY TRUST
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

AND

AGAMPODIGE PERMASIRI WEERASEKARA
(Fifth Co-Respondent by Election)

AND

SHANE HOWARD
(Seventh Co-Respondent by Election)

AND

LISA ROBINSON
(Eighth Co-Respondent by Election)

AND

PHILIP MOSS
(Ninth Co-Respondent by Election)

AND

JAVIER PAEZ
(Tenth Co-Respondent by Election)

AND

SILVIU RISCO
(Eleventh Co-Respondent by Election)

FILE NO/S:

2832 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

25 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 – 27 and 30 September 2019 and 15 November 2019 and further documents received on 18 November 2019

JUDGE:

Kefford DCJ

ORDER:

I order:

(a)       by 4pm on 11 March 2020, the Respondent is to deliver a draft suite of conditions to the other parties; and

(b)      the appeal be listed for review at 9.15 am on 18 March 2020 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a retirement facility in a Low density residential zone – whether the proposed development is of an appropriate height – whether there is inconsistency between a zone code and neighbourhood plan code and, if so, which prevails – whether there is conflict occasioned by bulk, scale, form and intensity – whether there is a need for the proposed development

LEGISLATION:

Planning Act 2016 (Qld), s 45, s 59, s 60

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Ausco Modular Pty Ltd v Western Downs Regional Council [2017] QPEC 58; [2018] QPELR 80, approved

Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135, applied

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved

Bell v Brisbane City Council & Anor [2018] QCA 84; (2018) 230 LGERA 374, followed

Bell & Anor v Noosa Shire Council & Ors [1983] QPLR 311, approved

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPEC 34; [2018] QPELR 1102, approved

Intrafield Pty Ltd v Redland City Council [2001] QCA 116; (2001) 116 LGERA 350, followed

Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved

Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, applied

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council &…

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Details
AGLC
JRD No 2 Pty Ltd v Brisbane City Council & Ors [2020] QPEC 4
Case
[2020] QPEC 4
Decision Date

CaseChat Overview and Summary

JRD No 2 Pty Ltd sought to appeal a decision of the Brisbane City Council to refuse their development application for a material change of use for a retirement facility. The application was refused on the basis that the proposed development did not comply with the requirements of the planning scheme. The appeal was heard by the Queensland Planning and Environment Court. The appellants argued that the proposed development was of an appropriate height, that there was no inconsistency between the zone code and neighbourhood plan code, and that the proposed development was not of a conflicting bulk, scale, form and intensity. The appellants further argued that there was a need for the proposed development.

The court was required to determine whether the proposed development was of an appropriate height, whether there was an inconsistency between the zone code and neighbourhood plan code and, if so, which prevailed, and whether there was a conflict occasioned by bulk, scale, form and intensity. The court was also required to consider whether there was a need for the proposed development. In considering these issues, the court examined the relevant planning scheme, the evidence given by the parties, and the relevant statutory provisions. The court found that the proposed development did not comply with the planning scheme and that there was a conflict occasioned by bulk, scale, form and intensity. The court also found that there was no inconsistency between the zone code and neighbourhood plan code, and that the proposed development was not of an appropriate height.

The court dismissed the appeal. The court found that the proposed development did not comply with the planning scheme and that there was a conflict occasioned by bulk, scale, form and intensity. The court also found that the proposed development was not of an appropriate height. The court further found that there was no inconsistency between the zone code and neighbourhood plan code. The court ordered that the respondent was to deliver a draft suite of conditions to the other parties by 4pm on 11 March 2020, and that the appeal be listed for review on 18 March 2020 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval.

Orders

Orders of the court

I order:

(a) by 4pm on 11 March 2020, the Respondent is to deliver a draft suite of conditions to the other parties; and

(b) the appeal be listed for review at 9.15 am on 18 March 2020 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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