O'Brien v Brisbane City Council

[2010] QPEC 43

[2010] QPEC 43

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3346 of 2009

THERESE O'BRIEN, PAUL DOREY, MICHAEL GOODWIN, STUART PIKE and ROSLYN REES	Appellants
and
BRISBANE CITY COUNCIL	Respondent

and

SEAN DAY  Co-Respondent

BRISBANE

..DATE 05/05/2010

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350(1)(d), s 353

"Minor change" of development application where a second dwelling proposed for a site (to be reconfigured) was "rotated" 90 degrees to alleviate concerns of adverse submitter neighbours in a compromise of their appeal

HIS HONOUR:  The Court makes an order in terms of the initialled draft which includes a declaration of its satisfaction that changes to the proposed development made to satisfy concerns of the adverse submitter appellants are minor change.  The changes can be gleaned by comparing‑‑‑‑‑

...

HIS HONOUR:  ‑‑‑‑‑the Council’s approved plan bearing the development assessment team's received stamp 24th September 2009 in Exhibit 1 and the corresponding plan forming part of the Court's order, which bears the date 23rd of February 2010.  The proposal is for a material change of use and reconfiguration to permit the construction of a new dwelling in what was formerly the back yard of an existing dwelling which is to be retained.  The change is broadly described as rotation of the new structure by 90 degrees in a clockwise direction around the laundry, which is slightly relocated on the southern side.

A benefit to be achieved is that a staircase which was formerly to be external will not only be removed from proximity to the side boundary against one of the appellants’ properties, but will also become essentially an internal staircase on the side adjacent to the existing dwelling. Those changes satisfy the relevant concept of minor change as described in s 350(1)(d) of the Sustainable Planning Act 2009 and picked up in following provisions including s 353. The issue concerns “minor change” to the development application, which the court now has to assess and determine, rather than a “permissible change” to an approval under s 367.

Order as per initialled draft.

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