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 Queensland at [4560]:

"Separately from the issue of identifying submissions to
which the entity must have regard under s 3.5.33(7)(b), there are potential difficulties of lack of fairness in not giving submitters the opportunity to make supplementary submissions with respect to the change. The decisional notice is directed only to the person requesting the change, normally the landowner or the developer: IPA, s 3.5.33(8). Appeal rights inhere only in the person receiving the written notice: IPA, s 4.1.31(1)(a). It is to be doubted whether the requirement that no new assessable development be created by the request will be a sufficient safeguard. An element in the original application may have satisfied potential objectors, and been made a condition of the approval. Removal of it may not necessarily constitute assessable development. Further, s 3.5.33 does not require the giving of public notice in order to confer jurisdiction on the PEC to deal with an application to change conditions of approval: Hannay v Brisbane City Council (1997) 94 LGERA 212 (CA Qld); Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council [2001] QPELR 96, Newton DCJ at 97-8.

There is a case for the legislature to substitute a minor modification test for the 'no assessable development' test in s 3.5.33."  

Mr Cochrane, appearing for Mrs Kendall, has made available to the Court the submissions which were received by the Council in 2002.  They relate to drainage, traffic and preservation of certain existing trees.

I have heard from the Bar table that although certain tree plantings required of the developer took place, to a considerable extent what was planted failed to thrive.  Part of the revised conditions on which the parties are agreed relates to a new planting regime which will require Mrs Kendall to attempt on a more ambitious scale the task in which the developer did not succeed.  As Mr Cochrane says, as a long-term resident she will have an incentive to maintain plantings which the developer lacks.

Mrs Kendall has done everything asked of her and would have a reasonable expectation of success in her proceedings.  I have indicated, perhaps at an inordinate length, considerations which the Court has to bear in mind which in other circumstances might have precluded Mrs Kendall succeeding.  Today they do not.  The conditions ought to be changed in accordance with the solution found by the parties which is incorporated in a draft order in application 1012 of 2005.

I then order in terms of the initialled draft in the matter and likewise in 892 of 2005 which effectively disposes of the enforcement notice on the assumption that the revised conditions will be implemented.

...

-----