Kendall v Brisbane City Council - [2005] QPEC 72

[2005] QPEC 072

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application Nos 892 of 2005
1012 of 2005

TRACEY ANNE KENDALL Applicant

and

BRISBANE CITY COUNCIL Respondent

BRISBANE

..DATE 29/07/2005

ORDER

CATCHWORDS: Planning and Environment Court's responsibility to consider original submissions made to the assessment manager when asked to change conditions of development approval fixed by the Court in appeals in which adverse submitters (not now parties) were heard - Integrated Planning Act 1997 s 3.5.33(7)(b)

HIS HONOUR: There are two proceedings before the Court: one an application by Mrs Kendall for the setting aside of an enforcement notice dated 11 February 2005, the other seeking change of a condition incorporated in the Court's order of the 9th of May 2003 which related to appeals 4963, 4964, 4965, 4966 and 4967 of 2002. On that occasion the Court fixed conditions for approval of a reconfiguration which included the identification of building location envelopes on seven residential allotments.

Mrs Kendall became the purchaser of one and it subsequently came to the attention of the Council - I was told the other day, thanks to an anonymous complaint - that there had been placement of fill external to the identified BLE. Mr Cochrane says that in no case does the height of that reach a metre. While the set condition properly construed might have precluded the placement of that fill, it is clear that there will not be any construction in the everyday understanding of that term outside the BLE. It seems the fill has been obtained from on-site excavation, not being imported, and that there are other advantages from the filling including easier ramp-type access rather than stairs which would otherwise have been necessary.

Mrs Kendall finds herself appellant or applicant in two separate proceedings in consequence of following the advice of the Council as to how she ought to proceed - which it has to be said seems unduly complex, although it is not suggested any alternative was available.
The Council has no objection to matters being regularised by revision of the conditions so far as relating to Mrs Kendall's lot. The Court must give its approval since it set the relevant condition.

The difficulty the Court is faced with is that the 2002 proceedings were adverse submitter appeals in which the adverse submitters who were concerned to preserve the amenity of their neighbourhood, presumably, were heard. They went along with Judge Quirk's orders. They are not represented in these proceedings.

Theoretically, there might be similar proceedings in relation to every one of the seven lots whose separate or combined effects if conditions were changed might be to undercut considerably the achievements, whatever they were, of the adverse submitters.

The Integrated Planning Act 1997 requires that consideration be given to the submissions that were originally made to the assessment manager. See section 3.5.33(7) and also section 3.5.33A(9). I think there is much to be said for the views expressed in Fogg, Meurling and Hodgetts, Planning and Development…

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.

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Details

Case: [2005] QPEC 72
Decision Date: 29/07/2005

CaseChat Overview and Summary

The case of Kendall v Brisbane City Council involved the applicant, Tracey Anne Kendall, challenging an enforcement notice issued by the Brisbane City Council and seeking to change conditions of a development approval. The Court was required to consider whether it should revise conditions set by a previous order and whether it should set aside an enforcement notice. The legal issues before the Court were whether it should consider the original submissions made to the assessment manager and whether it should allow a change in conditions of approval when the adverse submitters in the original proceedings were not represented in the current proceedings. The Court found that the Integrated Planning Act 1997 required it to consider the original submissions made to the assessment manager and that there was a case for the legislature to substitute a minor modification test for the 'no assessable development' test. The Court also found that the applicant had a reasonable expectation of success in her proceedings and ordered that the conditions be changed in accordance with the solution found by the parties. The Court set aside the enforcement notice on the assumption that the revised conditions would be implemented.

Orders