Papas v Brisbane City Council

[2003] QPEC 6

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Papas & Anor v Brisbane City Council [2003] QPEC 006

PARTIES:

JOHN PAPAS AND DENISE PAPAS
Appellants

v

BRISBANE CITY COUNCIL
Respondent

FILE NO/S:

5754 of 2001

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

7 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2003

JUDGE:

McLauchlan QC DCJ

ORDER:

The new plans constitute more than a minor change to the application

CATCHWORDS:

COUNSEL:

Mr L Boccabella for the appellants
Mr M Rackemann for the respondent

SOLICITORS:

King & Company Solicitors for the appellants
Brisbane City Legal Practice for the respondent

1. The application before me is for the determination of a preliminary point arising in an appeal against an approval, subject to conditions, of an application for the development of a house on land situated at 58 Watson Street, Newmarket. 

1. The site is in the low density residential area. The level of assessment specified in respect of a house not complying with the acceptable solutions in the House Code is that it is notifiable and the applicable code is the House Code. Performance Criterion P2 of the House Code is that building height must be consistent with those buildings prevailing in the locality, and the acceptable solution provided is that no part of the house be more than 8.5 metres above ground level. In the present case the development proposal did not comply with that acceptable solution. The House Code makes provision with respect to public notification and that procedure has been followed in this case, resulting in 17 submissions objecting to the proposal. Provision with respect to public notification of an application without conferring appeal rights upon submitters is made in s. 3.2.7 of the Integrated Planning Act.   The conditions imposed by the respondent included amendments to some levels contained in the plans  for the construction of the house, reducing those levels by some 600 millimetres. 

1. The application was approved subject to conditions on 5 November 2001 and a Notice of Appeal against the respondent’s decision to impose conditions on the approval was filed on 3 December 2001.   However, the appellant proposes to proceed with the appeal, not upon the original plans of the proposed development, which were the plans considered by the respondent, but on new plans which it has prepared, and copies of which are in evidence.  The preliminary point is whether or not the court can or should hear the appeal upon the basis of the new plans. 

1. As pointed out by the respondent, the court has no original jurisdiction with respect to development approvals, which jurisdiction is conferred by the legislation upon the relevant assessment manager.  The court’s jurisdiction is, to the contrary, an appellate one.  However, the appeal is by way of “hearing anew” pursuant to s.4.1.52 and, within the limits prescribed by that section the court is not confined to the application on which the decision was made,  in hearing the appeal.  To be more precise, s.4.1.52 provides that although an appeal is by way of hearing anew, if the appellant is the applicant or a submitter for a development application, the court must not consider a change to the application on which the decision appealed was made unless the change is only a minor change.  It follows from this, that a change made to an application after the decision  by the assessment manager has been made  may be taken into account by the court in hearing an appeal against that decision, if the change can be shown to be “only a minor change”.

1. The legislation contains no definition of a “minor change” for the purposes of s.4.1.52.  There is a definition of “minor change” in the dictionary contained in Schedule 10 to the Act but that definition is expressly confined in its application to a development approval and appears to relate to the provisions of s.3.5.24 of the Act.  It may be that some analogy can be drawn between a development approval and a development application which would make it appropriate to consider the statutory definition for the purposes of s. 4.1.52.  However the definition pointedly is confined to an approval and has no apparent relevance to an application.  I consider that for the purposes of s.4.1.52 the expression “minor change” needs to be construed without reference to the statutory definition.

1. The new plans for the development show a differently designed house from that to which the original plans related.  The proposed development nevertheless remains a detached house which is the predominant form of development in the low density residential area, and it is said that the Performance Criterion relating to building height is met because the height remains consistent with the buildings prevailing in the locality although at points that height exceeds 8.5 metres above ground level,   as was the case with the original plans.  There appears to be no evidence that the building height is in fact consistent with other buildings in the locality but no point has been expressly taken by the respondent to the contrary. 

1. The significant issue raised by the application is obviously with respect to the height of the building; and a comparison of the plans exhibited to the affidavit of Michael Barry Scott, an architect, persuades me that the areas of the proposed new development where the height of 8.5 metres is exceeded are substantially greater than those in the original plans and, moreover, that the extent to which the height of 8.5 metres is exceeded in those areas is significantly greater in the new plans. I think it quite possible that public notification of the development based on the new plans might evoke more objection than was the case with the original plans.  If the differences between the two plans had related to matters other than the height of parts of the building which exceed 8.5 metres from ground level,  I might have been more readily disposed to consider those changes to be minor changes for the purposes of this application.  However the changes are significant and relate to the substantial issue requiring consideration upon the application.  In my view the changes represented by the new plans are not minor changes and the court has therefore no power to consider those changes on the hearing of the appeal.  The present appeal can not therefore proceed upon the new plans of the development proposed by the appellants.