Lazovic v Brisbane City Council

[2011] QPEC 68

[2011] QPEC 68

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3561 of 2010

ZORAN LAZOVIC	Appellant
and
BRISBANE CITY COUNCIL & ORS	Respondent

BRISBANE

..DATE 06/05/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 367, s 369, s 371, s 376

Appeal on behalf of a long-established church against a development approval for a waste transfer station - the Council had required the development application to be made because it considered the use to be unauthorised - appellant on a mention date sought orders to prevent or curtail the use pending determination of the appeal - in the circumstances the court considered that orders in that regard should only be made upon a formal request or notice supported by appropriate evidence

HIS HONOUR:  The court makes an order in terms of the initialled draft.  It includes directions for the further conduct of the appeal, calculated to lead to a hearing in September.

It has been amended in deference to concerns expressed by the appellant who represents the Serbian Orthodox Church.  It has been operating at Richlands since the early 1970s, the court hears, and it does so now under what are contended to be inappropriate conditions when the co-respondent is operating perhaps as near as 50 metres away its waste transfer business.  That business is now being operated under a development approval which the Council has granted and which is the subject of the appeal.

The development application was made consequent upon enforcement procedures undertaken by the Council which apparently took the view that the use which goes back a number of years, but not as long as the Church's activities, that those uses were not authorised.

The complaint of hours of operation is understandable.  The notice of appeal does not specifically refer to that aspect which the court hears from the Bar table is of special concern on Sundays.  It does refer to issues such as noise and air quality.

I understood the appellant to be seeking that the court make some order now which would prevent the co-respondent from carrying on its use while the appeal remains undetermined or perhaps that it be restricted to carrying out that use in ways which would not impact so greatly on the Church's activities.  It may be unusual to have the approval acted upon while the appeal is unresolved, there having been no application, so far as I am aware, to the court for authority to start the use.  However, the circumstances are unusual, given that the appeal concerns a business that has been operating for some time.  It would doubtless be difficult for the co-respondent and its customers and employees if the operations were curtailed by an order now.

The court is certainly not closing the appellant out from seeking some special orders in advance of the hearing and determination of the appeal but is of the view that such orders cannot conveniently be sought on a mention such as today's.  If they are to be sought under the liberty to apply in the order, that should be on notice, and on the basis of an application supported by evidence in affidavit or similar form so that the respondent and co-respondent can consider how to respond.

Exhibit 1 is a document the appellant tendered which asks the court to make declarations over and above those routinely made in respect of public notification and giving notice of the appeal and the like.  Those further matters refer to the public interest, democratic representation, natural justice, the appellant "operating in close proximity to a site with environmental value" and the like.  Those are matters which the other parties have had no opportunity to consider until today's hearing and, on the face of it, they are inappropriate for the court to make statements about in the absence of appropriate opportunity for the other parties to understand what is being got at and make submissions.

A matter I have not mentioned yet is that the lack of restriction of operating hours is perhaps explained by the co‑respondent's site being zoned for industrial use.  That is apparently a zoning which followed the establishment of the church.  It remains to be seen whether there is any basis on which the special conditions which I apprehend the appellant might like can be imposed.

Order as per initialled draft.

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