Palmer v Brisbane City Council - [2006] QPEC 70

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Palmer & Anor v Brisbane City Council & Anor [2006] QPEC 070

PARTIES:

PATRICK PALMER AND R DUNCAN FREWEN

Appellants

v

BRISBANE CITY COUNCIL

Respondent

and

KAYSTONE DEVELOPMENTS

Co-respondent

FILE NO/S:

BD936 of 2004

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2006, with further submissions received on 3 May 2006

JUDGE:

Rackemann DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Mr S Ure, of counsel, for the Appellants

Mr B Job, of counsel, for the Respondent

Mr P R Smith, of counsel, for the Co-respondents

SOLICITORS:

McCarthy Holzberger for the Appellants

Brisbane City Legal Practice for the Respondent

Thynne & McCartney for the Co-Respondents

In November 2003, the co-respondent made a development application which was ultimately approved, subject to conditions, in early 2004. The proposal, the subject of the application, involved, at the least, the construction of a new detached dwelling at the rear of an existing building. The application was treated as impact assessable. The appellants were adverse submitters. The issue which now falls for determination concerns the proper characterisation of the application and, in particular, whether it ought to have been subject to impact assessment.

The co-respondent relies upon this court’s decision in Yu and Leung v Brisbane City Council & Anor [2005] QPEC 78 to submit that the proposal was simply a “house” which did not require impact assessment. The consequence, it was submitted, is that the appellants had no right or entitlement to become submitters or to appeal against the Council’s decision. It was conceded, on behalf of the appellants, that they had no such rights if the application was properly characterised as for a house only. The co-respondent seeks, in the alternative, to change its application to now seek approval only for a “house”.

The land, the subject of the application, is situated at 47 Wahcumba Street, Dutton Park. It is a corner site, with a frontage to Park Road West. The site is currently improved with an older style building fronting Wahcumba Street. Its appearance suggests it might once have been used for a shop or other commercial purpose. It is common ground that the building has, in recent times, been used for residential purposes. It is not identified as a Commercial Character Building under CityPlan.

The application, as lodged, comprised completed IDAS forms, a brief report and proposal plans. The “site plan” and “streetscape” plan, which accompanied the application, showed both the existing building and the proposed new dwelling. The “site plan” showed the internal configuration of the older building and nominated uses for various rooms including a “waiting room”, “office”, “meeting/staff” and “reception/office”, together with two bedrooms, a kitchen and lunch/dining area. The same plan showed a “path to office” linking the existing and proposed new buildings. The proposed new building takes the form of a contemporary detached dwelling.

The current use of the site was erroneously described in Part A of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palmer v Brisbane City Council

Details

AGLC: Palmer v Brisbane City Council [2006] QPEC 70
Case: [2006] QPEC 70
Decision Date: 14 July 2006

CaseChat Overview and Summary

In the Planning and Environment Court of Queensland, the case of Palmer and Frewen v Brisbane City Council and Kaystone Developments involved a dispute regarding the approval of a development application for a new detached dwelling at the rear of an existing building. The appellants contested the Council's decision to approve the development application, arguing that the proposal should have been subject to impact assessment. The co-respondent argued that the proposal was simply a "house" which did not require impact assessment. The primary issue was the proper characterisation of the application and whether it should have been subject to impact assessment.

The Court examined the application documents and found that the proposal was described as an "extension to office (caretaker's residence)" and the existing building was misdescribed as a "commercial character building." The Court also noted that the proposal plans showed the internal configuration of the existing building and nominated uses for various rooms, as well as a proposed path linking the existing and new buildings. The Court found that the proposed residential component was put forward as being ancillary to the office use, which was not then in existence and for which the necessary approval had not been obtained.

The Court ultimately concluded that the proposal was not merely for a house, and the application could not be changed to be so confined in the subject appeal. The Court found that the applicant could not now make an application for a house as the primary use of the lot, as the application sought approval for a residence which was to be ancillary to the proposed office use. The difference in outcome from a similar case, Yu, was influenced by the different circumstances.

The Court will hear from the parties concerning the appropriate orders. This case highlights the importance of proper characterisation of development applications and the need for accurate and complete application documents.

Orders