McDowell v Brisbane City Council; Krajniw v Brisbane City Council

[2010] QPEC 119

[2010] QPEC 119

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3398 of 2007

BRUCE E MCDOWELL AND LAURELLE E MCDOWELL; BARRY WILLIAM POTTER; AND PETER C BALMER AND DEBRA A BALMER	Appellants
and
BRISBANE CITY COUNCIL	Respondent
and
BMD PROPERTIES PTY LTD	Co-Respondent

and

ENVIRONMENTAL PROTECTION AGENCY        First Co-Respondent
   by Election

P & E Appeal No 3411 of 2007

TONY KRAJNIW   Appellant

and

BRISBANE CITY COUNCIL	Respondent
and
BMD PROPERTIES PTY LTD	Co-Respondent

and

ENVIRONMENTAL PROTECTION AGENCY        First Co-Respondent
   by Election

P & E Appeal No 3413 of 2007

ROB WILSON ARCHITECT AND              Appellants
JOHN EPHRAM GODFREY

and

BRISBANE CITY COUNCIL	Respondent
and
BMD PROPERTIES PTY LTD	Co-Respondent

and

ENVIRONMENTAL PROTECTION AGENCY        First Co-Respondent
   by Election

BRISBANE

..DATE 21/04/2010

JUDGMENT

CATCHWORDS

Sustainable Planning Act 2009, s 367

Multiple adverse submitter appeals resolved by orders granting preliminary approval - appellants had differing points of view - concerns of one appellant alleviated by inclusion of specific statement that all approvals from Commonwealth, State and local entities must be obtained before any actual development could be carried out - special provisions reflecting developer's agreement with one of the appellants to be recorded in an undertaking given by it and recorded in the relevant order

HIS HONOUR:  These three appeals are close to final resolution

by the court making orders in 3398 of 2007 and 3411 of 2007 in

terms of the four volume drafts which have been initialled,

and in 3413 of 2007 by the making of orders in terms of

another four volume draft, which will be initialled, which in

this appeal are made expressly "on the undertaking of the

co-respondent BMD Properties Pty Ltd" set out in annexure “AA”

to the order which has been initialled by the co-respondent's

representative and by the appellant Godfrey.

Like Mr Krajniw, the appellant in 3411 of 2007, Mr Godfrey and

Mr Wilson have been seeking to protect public interests, as

they saw them, which focused on serious concerns regarding a

very large diversified development on land which is presently

open space and has environmental values, including fauna.  The

general area is famous as the Minipippi Wetlands.

Mediation led to the appeals other than Mr Krajniw's being

resolved so far as the parties were concerned.  Mr Krajniw,

notwithstanding his disappointment at the failure of the

appeal at first instance in this court and then in the Court

of Appeal, has fought a determined last ditched fight to delay

the granting of any development approval.  Even this morning,

after his position had been made clear last Monday, he's

urging the court to withhold making any orders that might facilitate the development in any way until various approvals which may be required from all three levels of Government have been obtained.

Cases such as Walker v Noosa Shire Council [1983] 2 Qd R 86

make it clear that it's not the business of this court to determine the order in which authorisations necessary to permit actual development are being obtained.  The suggestion has been given to Mr Krajniw that he approach the various authorities he's identified to indicate and support his concerns in advance.

Last Monday, as a gesture towards alleviating concerns he

expressed that the preliminary approval encapsulated in the

court's order may somehow authorise development to proceed

regardless of the requirements of the Commonwealth, State and

local laws, it was determined that there should be added as a

condition in the condition package note stipulations,

which simply confirm the limitations on the preliminary

approval.

Revision of the language proposed by me for discussion last

Monday the 19th of April means that condition 1 now has added

to it the following:

"The preliminary approval approves development (but does

not authorise assessable development to occur) to the extent stated in the approval.  The approval doesn't exempt the applicant from compliance with any relevant local, State or Commonwealth law unless the context of such law or this approval provides otherwise."

The court is content with the changed expression in those

respects.  The draft orders which are subject to the

undertaking mentioned are in the same terms in each appeal -

each authorises proceeding on the basis of changes to the

development/application from what was previously proposed;

they are minor changes.

The affidavit of Mr Ovenden sworn on the 10th of February this

year explains the changes.  They involve a reduction in the

size of two of 120 residential lots, lot 63 being reduced from

820 square metres to 750 square metres; lot 61 being reduced

from 885 square metres to 785 square metres.  The areas

deleted from those two lots go to widen road reserves.  The

reduced areas are consistent with the range of lot sizes

proposed, which extends 450 square metres to 870 square metres

and, in particular, there's consistency with the sizes of

adjoining lots.

Such changes are minor from any point of view and are

comfortably within what is now the relevant legislation in

section 367 and following of the Sustainable Planning Act

2009.

The Krajniw appeal could not be resolved last Monday because

the pendency of other appeals against the Council's negotiated

decision notice precluded the court's granting any development

approval.

Today Mr Ryan appears to confirm that the appellants in 3398

of 2007 are content for the orders which the Council and the

co-respondent have settled upon to be made.

MR RYAN:  Excuse me, your Honour, other than Mr Potter.

HIS HONOUR:  Yes, I appreciate Mr Ryan's reminder that the

appellant Mr Potter doesn't come within that category; before

court today it was not possible to obtain direct instructions

from him as he's apparently uncontactable on a fishing trip.  

Mr Williamson has been able to tender as Exhibits 1A and 1B

e-mails from his wife which give the court sufficient

confidence that Mr Potter wouldn't be standing in the way of

what's going to happen.

There has been some delay this morning consequent upon

Mr Godfrey's submissions which sought to preserve the benefit

of a private agreement which he and Mr Wilson have reached

with the co-respondent BMD.  The issue boils down to whether

those aspects could be dealt with by undertakings or must be included in the conditions package which, I suppose, they could have been, although this would involve a certain amount of inconvenience in re-printing three unbelievably voluminous orders.

I indicated earlier, before the matter was stood down to

permit discussions between Mr Williamson and Mr Godfrey, what

the effect of undertakings which are personal to the

co-respondent would be.  In the end Mr Williamson has

indicated that agreement has been reached to resolve the issue

by the giving of an undertaking in suitable terms.

Mr Williamson commenced to read the anticipated terms into the

court record, but difficulty was soon reached as the language

is not yet in its final form.  The proposal is that agreement

will be initialled by the relevant parties to record the

undertaking to form part of the order.  It extends to some

quite detailed matters such as the categories of fencing to be

provided for in environmental management plans which are going

to be important if the development unfolds.

To an extent, I suppose there's some experimentation going on

in 3413 of 2007.  I don't think that need stand in the way of

the court resolving all three appeals in the way indicated.

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