Newman v Brisbane City Council (No 1)

[2012] QPEC 18

[2012] QPEC 18

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2324 of 2010

PETER NEWMAN AND OTHERS	Appellants
and
BRISBANE CITY COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 02/03/2012

ORDER

CATCHWORDS

Unsuccessful submitter appeal - determination of what should be final development conditions - court inclined to prefer solutions acceptable to submitter neighbours (appellants) over those of submitter co-respondent based remotely - that co-respondent distrustful of developer's professed intentions - court disinclined to place [special] time limits on the development or limit the use to use by the co-respondent developer - adjournment to permit Council to prepare a conditions package.

HIS HONOUR:  This matter is adjourned to 9.30 a.m. on the 9th of March 2012.  The purpose of that is to enable the court to make final orders in the appeal, something that was anticipated could be done today on the basis that today provided the Council with the time requested to consider the developer's proposed conditions package and some associated changes to the development proposal.  That timetable has failed; the reason being that the developer has seen fit to make some additional changes to meet the requirements of the immediate neighbours of the site, the appellants Mr Newman and Ms Tendyke.  The court understandably has concerns about the impacts of development proposals on immediate neighbours and therefore ought not to complain about the further delay.  What's sought is another week.

The appellant, Dr Crawford, who lives nearby, participated in the appeal, but has been relatively inactive since.  There's been no direct communication to the court, or indeed to Mr Shannon, who represents the developer, from him.  He's confirmed today personally in court that on the basis that things stand as revealed in documents made available to him by the neighbours, he is content with the outcome Mr Shannon now proposes in the appeal, as are Ms Tendyke and Mr Newman.

Mr Steendyk, a submitter against the proposal who was an extremely active co-respondent by election in the appeal, is not content.  He considers, and I think probably with justification, that Mr Shannon's team have not been as receptive to his suggestions as to what ought to be in any final order so far as it concerns design of the building and conditions about its operation, as had been the case in relation to the other submitters.  He thinks that there should have been more consultations with him.

The continued unfolding of the stages of this matter makes understandable to me the relatively uncooperative attitude of the developer.

Mr Steendyk's current proposals are contained in annexure A to an “outline of submissions of the co-respondent by election”, which was handed up today.  This is new material today so far as the court and the other parties are concerned.  They haven't had the opportunity to consider Mr Steendyk's suggestions, but Mr Shannon, and so far as the Council's concerned, Mr Lyons, have indicated to the court that they will consider them over the next week, while Council finalise their position.  What's anticipated is that the Council will incorporate the changes that are to be made in a conditions package of the familiar kind.  I understand the council is happy enough with the plans but concerned to ensure that changes to conditions which are set out in the second column of one of the exhibits to Mr Matovic's affidavit can appropriately be incorporated in the relevant document as it presently stands.

I have indicated to Mr Steendyk this morning the court's firm view that the question for it is whether the development as proposed is acceptable, not whether it's perfect or ideal.  Mr Steendyk has close ties with the Spring Hill area but is far from being an immediate neighbour.  Where there may be conflicts between suggestions of the immediate neighbours which have found favour with the developer and Mr Steendyk's suggestions, in such circumstances I think the court should favour the outcome which the neighbours have judged better protects their amenity, unless there is some clearly overwhelming public interest pointing another way.

I haven't had an opportunity to consider Mr Steendyk's suggestions in detail, and I'll do that over the next week, but the reactions of the respondent and the co-respondent to them are likely to be fairly persuasive.  Speaking generally, I think Mr Steendyk's suggested improvements are relatively minor but they're all likely to involve cost which the developer will have to bear; I don't think that their being ignored will result in the proposal being unacceptable.

The very important point which Mr Steendyk ventilates is based on a concern he has that the co-respondent is not seriously intending to implement the proposed use.  He proposes conditions by way of time limitations on getting the development completed, and, more importantly, on the proposed use being limited to a use conducted by the co-respondent, Royal Australasian College of Surgeons.  Mr Steendyk, over the months that have elapsed, has heard remarks that generate in him a suspicion that the College isn't serious about pursuing the development, that it may wish to sell the site.  Even during the conduct of the appeal hearing, concerns along that line were ventilated, in particular that St Joseph's College Gregory Terrace, which operates across the road under severe space constraints, may purchase the building which is proposed and seek to use it for school purposes. 

I'm certain that would involve an impact assessable application for material change of use.  It's understandable that Mr Steendyk would have a concern that if the School or some other owner other than one leasing the premises back to the surgeons were to seek a material change of use, they would have a potentially valuable foot in the door, so to speak, if the very large building proposed by the surgeons were in place and appeared suitable for the new proposal.

No doubt in many scenarios unforeseen outcomes along those lines can be contemplated, however, the general practice of the court is to accept developers at their word regarding their intentions.  There's insufficient substance in Mr Steendyk's concerns (which aren't backed by any evidence) to make it totally inappropriate for the court to impose what seemed to me unprecedented conditions limiting the use being  approved to use by the co-respondent.

I accept that there are cases, some of which Mr Steendyk's mentioned this morning, in which the court imposes time limits on uses or limits on the identity of those who may carry out a use on a site, but this is far from being one of those special cases, even though, as Mr Steendyk says, at many points in the appeal, and indeed in my reasons for judgment, the proposal was justified and supported by reference to the particular needs of the Royal Australasian College of Surgeons to expand in a way that would suit its needs for the next 40 years or so.

We’ll come back on the 9th of March.

UNIDENTIFIED SPEAKER:  Thank you, your Honour.

UNIDENTIFIED SPEAKER:  Thank you, your Honour.

HIS HONOUR:  If any party doesn't wish to attend, I'll understand that, but you all know it's on if you wish to attend.  Thank you.

‑‑‑‑‑