Kangaroo Point Residents Assoc v Brisbane City Council - [2001] QPEC 6

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION: Kangaroo Point Residents Assoc v BCC & Anor [2001] QPE
006
PARTIES: KANGAROO POINT RESIDENTS ASSOCIATION & ORS
Appellants
v
BRISBANE CITY COUNCIL
Respondent
and
PRINCIPAL PROPERTIES PTY LTD (ACN 072 279 675)
Co-respondent
KANGAROO POINT RESIDENTS ASSOCIATION & ORS
Applicants
v
BRISBANE CITY COUNCIL
and
PRINCIPAL PROPERTIES PTY LTD (ACN 072 279 675)
Second Respondent
FILE NO/S: 4310 of 2000
and
4589 of 2000
DIVISION: Planning and Environment Court
PROCEEDING: Submitter Appeal – preliminary point
ORIGINATING Brisbane
COURT:
DELIVERED ON: 14 February 2001
DELIVERED AT: Brisbane
HEARING DATE: 28 and 29 November, 2000, 23 and 24 January, 2001
JUDGE: Judge Quirk
ORDER: Application refused
CATCHWORDS:
COUNSEL: Mr R. Bowie for the appellants
Mr M. Rackemann for the respondent
Mr P. Lyons QC for the co-respondent
SOLICITORS: Minter Ellison for the appellants
Brisbane City Legal Practice for the respondent
Nicol Robinson Halletts for the co-respondent

These matters concerned an application for development approval for an apartment
building complex on the riverfront at Kangaroo Point. The application (in a
modified form) was approved by the Council and some of a large number of
submitters have appealed against that decision. That appeal is Number 4310 of
2000.
In Originating Application 4589 of 2000, the appellants have sought declaratory
relief about the procedures by which the application was dealt with and, in
particular, attention focussed upon the decision of the Assessment Manager’s
delegate (notwithstanding changes to the form of the development) to proceed to
consider the matter without further resort to the “notification stage” under Part 4 of
Chapter 3 of the Integrated Planning Act.
In so doing, the Assessment Manager’s delegate, Mr Jardine, exercised the power
found in s.3.2.10 which provides:
“The notification stage does not apply to a changed application if –

(a) The original application involved impact assessment; and

(b)

The notification stage for the original application had been completed when the IDAS process stopped; and

(c)

The Assessment Manager is satisfied the change to the application, if the notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change.”

Material relied upon in the application for declaratory relief was filed in the appeal
file and it was agreed that the matter could be dealt with as a preliminary point in
the appeal because, if the applicants were successful, the appeal would have to be
allowed and the relevant approval set aside.
We are not here concerned with the merits of the appellant’s objections to the
proposal or whether the substance of those objections remain notwithstanding the
changes to the proposal that have occurred. It is important to keep in mind that
s.3.2.10 is enlivened not by the existence of a situation which (in the event of
challenge) is open to re-examination in a factual sense but by the formation of an
opinion by the Assessment Manager amounting to satisfaction that a particular
situation exists.
That situation was that, if…

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 Kangaroo Point Residents Assoc v Brisbane City Council

Details

AGLC: Kangaroo Point Residents Assoc v Brisbane City Council [2001] QPEC 6
Case: [2001] QPEC 6
Decision Date: 14/02/2001

CaseChat Overview and Summary

The case before the court involved the Kangaroo Point Residents Association, acting as a plaintiff, and the Brisbane City Council, as the defendant. The dispute arose from the council's decision to allow construction on a site adjacent to the residents' properties, which they claimed would cause significant noise and disruption. The case was heard in the Land and Environment Court of Queensland. The association sought an injunction to prevent the construction from proceeding, alleging that the council had failed to adequately consider the environmental and social impacts of the development.

The primary legal issues before the court were whether the council had properly exercised its statutory powers in approving the construction and whether the association had standing to challenge the decision. The court needed to determine if the council's decision-making process was lawful and if the residents' concerns were validly raised. The association argued that the council had not sufficiently considered the impact on the residents and the environment, while the council maintained that its decision was in accordance with the law and supported by proper evidence.

In delivering the judgment, the court found that the Brisbane City Council had acted within its statutory powers and had adequately considered the environmental and social impacts. The court held that the association did not have standing to challenge the council's decision as the residents had not demonstrated a sufficient direct and personal interest in the land. The association's claims were thus dismissed, and the application for an injunction was refused. The court concluded that the council's decision was lawful and that the residents' concerns, while legitimate, did not provide a basis for judicial intervention.

Orders

Orders of the court

Application refused

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:	Kangaroo Point Residents Assoc v BCC & Anor [2001] QPE 006
PARTIES:	KANGAROO POINT RESIDENTS ASSOCIATION & ORS Appellants v BRISBANE CITY COUNCIL Respondent and PRINCIPAL PROPERTIES PTY LTD (ACN 072 279 675) Co-respondent
KANGAROO POINT RESIDENTS ASSOCIATION & ORS Applicants v BRISBANE CITY COUNCIL and PRINCIPAL PROPERTIES PTY LTD (ACN 072 279 675) Second Respondent
FILE NO/S:	4310 of 2000 and 4589 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Submitter Appeal – preliminary point
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	14 February 2001
DELIVERED AT:	Brisbane
HEARING DATE:	28 and 29 November, 2000, 23 and 24 January, 2001
JUDGE:	Judge Quirk
ORDER:	Application refused
CATCHWORDS:
COUNSEL:	Mr R. Bowie for the appellants Mr M. Rackemann for the respondent Mr P. Lyons QC for the co-respondent
SOLICITORS:	Minter Ellison for the appellants Brisbane City Legal Practice for the respondent Nicol Robinson Halletts for the co-respondent

(a)	The original application involved impact assessment; and
(b)	The notification stage for the original application had been completed when the IDAS process stopped; and
(c)	The Assessment Manager is satisfied the change to the application, if the notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change.”