Newman v Brisbane City Council (No 2)

[2012] QPEC 19

[2012] QPEC 19

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 09/03/2012

..DAY 1

ORDER

CATCHWORDS

Unsuccessful submitter appeal - condition limiting approval for "material change of use development permit - office, education purposes" to "office (administration of professional organisations) and education purposes (post-graduate training in surgical theory and professional practices)" considered to alleviate submitter concerns other uses (such as a school) would be let in.

HIS HONOUR:  I've reached a clear view to initial the order that's been handed up, which I'll do and formally make an order in those terms resolving the appeal.

I have been, today, and also to an extent before, prepared to go through Mr Steendyke's suggestions which I'm willing to say all have merit but that's not the question where, as here, the developer's got a proposal that the evidence the court accepts shows is acceptable.  That's the issue on which the court should pronounce.

The concern that Mr Steendyke and others have that we will never see on this site, or in the proposed building, a use by the co-respondent of office (administration functions of professional organisations) and education purposes (post-graduate training, medical theory and professional practices) has arisen again today.  Ms Tendyke has offered to tender a document which conveys the unsurprising information that
St Joseph's College, Gregory Terrace which is across the road from the site has formed a committee to be charged with looking into real estate acquisitions in its area to permit expansion of the school.

I developed a concern myself on perusing the Brisbane City Council approval package which protracted negotiations among the parties have led to, that the cover sheet refers to a development approval for (inter alia) "material change of use development permit - office, education purposes".  On the face of it, that might authorise a use for such broadly expressed functions by the school which I'm fairly confident would leap at the chance to acquire the site.

Mr Shannon draws my attention to condition 7 in the package which provides for "Limitation of use - The use of the premises as approved by this development permit shall be and remain limited to an office (administration functions of professional organisations) and education purposes (post-graduate training in medical theory and professional practices)".  That is consistent with the limitation that presently governs the planning arrangements for Special Area 17 which the site constitutes, with, indeed, some useful clarification.

In my view, the condition is effective to limit the uses that may be conducted on the site pursuant to the approval constituted now by the court's order.  Just as a week ago I expressed the view that no justification had been shown for what I regarded as an unprecedented requirement that the approval fail unless the co-respondent began carrying out the uses it says it proposes there within a limited time.  I'm not prepared to accede to Mr Steendyke's suggestion now that stage 2 should not be embarked upon until the co-respondent has by commencing or recommencing its uses in stage 1 acted on the approval.

Those are the court's reasons for making an order today in terms of the initialled draft which finally resolves the appeal. The reasons for refusal of the appeal are at [2011] QPEC 87.

‑‑‑‑‑