Manipura Pty Ltd & Tootgarook Pty Ltd v Brisbane City Council

[2005] QPEC 65

[2005] QPEC 065

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Appeal No 2524 of 2003

MANIPURA PTY LTD and TOOTGAROOK PTY LTD              Appellant

and

BRISBANE CITY COUNCIL  Respondent

BRISBANE

..DATE 22/07/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.33 - duty of Court to scrutinize application to change conditions of development approval contained in a Court order notwithstanding agreement between the local government and the developer - public interests to be considered.

HIS HONOUR: The Court has troubled the parties' representatives to a greater extent than they might have expected in what they regarded as an uncontentious application to the Court to change conditions of a development approval under Section 3.5.33 of the Integrated Planning Act 1997.

Conditions contained in an approval package forming the bulk of the Court's order of 9th June 2004 resolving the appeal are to be changed in ways which the parties believe will make them more appropriate to the proposed development.

Potentially, there are public interests involved.  Not being the Judge originally concerned, I took the view that it is proper for the Court to make some inquiry about the changes rather than simply entrust the matter to the judgment of the parties.

In the ordinary course of things, one would expect the local government to be solicitous of all relevant public interests and I emphasise there is not the slightest suggestion here that the Council has not done that.

The changes relate to consequences of its being demonstrated by a report in Mr Duff's affidavit that concerns previously harboured about the acoustic amenity of the proposed eight lots in relation to aircraft noise need not have been a consideration, given the contours situation.

In respect of building location envelopes, although those remain in respect of three of the eight lots proposed, the stipulation of such envelopes in respect to the other five lots is no longer considered necessary.  The locations under the arrangements which are included in the order of the 9th June 2004 seem quite unexceptional and would locate buildings sensibly on the proposed allotments having regard to conventional setbacks and other practical considerations.

There is to be deletion of certain "preliminary approval requirements", in particular those under the heading "Preliminary Approval 1"  It has now been appreciated that those arrangements imported irrelevant codes whose applicability is confined to other and much more intensive kinds of development.

The Court is satisfied that the conditions set out in subsection (1) of Section 3.5.33 are satisfied, in particular that in paragraph (b) that "no assessable development would arise from the change or cancellation" which the person referred to in paragraph (a) wants to achieve.

In the circumstances I make an order in terms of the initialled draft handed up.

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