Petty v Brisbane City Council - [2018] QPEC 2

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Petty & Ors v Brisbane City Council & Anor [2018] QPEC 2

PARTIES:

ALANA PETTY, DAVID BELL, JASON DAVIS, ASHLEY STAUNTON AND JOSEPH GRIFFIN

(appellants)

AND

BRISBANE CITY COUNCIL

(respondent)

AND

SINTRA DEVELOPMENTS PTY LTD
ACN 132 603 171

(co-respondent)

FILE NO/S:

BD 1238 of 2017

DIVISION:

Planning and Environment Court, Brisbane

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

7 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21, 22, 23 and 24 November 2017

JUDGE:

RS Jones DCJ

ORDER:

The appeal is allowed.1.

I will hear further from the parties as to any consequential orders.2.

CATCHWORDS:

APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where appellants local residents of the suburb of Camp Hill – where the respondent, the Brisbane City Council, approved development of a multi-unit development – where proposed development involved reconfiguration of a lot (four lots into two) – relocation and refurbishment of a pre-1946 heritage residential dwelling – where proposed development involved 16 units over three storeys

WHERE CONFLICT WITH CITY PLAN 2014 CONCEDED BY DEVELOPERS AND BRISBANE CITY COUNCIL – where appellants alleged a number of conflicts with the city plan 2014 – where substantive conflicts concerned with conflicts with the Strategic Framework – conflict with the Traditional Building Character (Design) Overlay Code – where conflict alleged with the Low-Medium Density Residential Zone Code – where conflict alleged in respect of the Multiple Dwelling Code – where substantive dispute is whether the proposal is in conflict with City Plan 2014 by reference to its intended height, bulk and scale

WHERE DEVELOPER AND BRISBANE CITY COUNCIL CONCEDE SOME CONFLICT WITH CITY PLAN 2014 – whether conflicts sufficient to warrant refusal in the absence of sufficient grounds – where respondent and co-respondent contend sufficient grounds exist to warrant approval notwithstanding conflict

Integrated Planning Act 1997

Planning Act 2016

Planning and Environment Court Regulations 2016

Statutory Instruments Act 1992

Sustainable Planning Act 2009

AAD Design Pty Ltd v Brisbane City Council [2013] 1 QdR 1

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157

Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209

Gerhardt v Brisbane City Council [2017] QCA 285

Grosser v Council of the City of Gold Coast [2001] QCA 423

Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271

Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63

Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPEC 29

Meridien AB Pty Ltd v Jackson [2013] QCA 121

Newing & Ors v Silcock & Ors [2010] QPELR 692

Platinum Design Architects v Brisbane City Council [2016] QPEC 58

Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Woolworths…

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.

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Details

Case: [2018] QPEC 2
Decision Date: 7 February 2018

CaseChat Overview and Summary

The appeal before the court concerns a dispute between the appellants, local residents of the suburb of Camp Hill, and the Brisbane City Council, the respondent. The residents appealed the council’s approval of a development application for a multi-unit development. The proposed development involved reconfiguring four lots into two, relocating and refurbishing a pre-1946 heritage residential dwelling, and constructing 16 units over three storeys. The appellants argued that the proposed development was in conflict with the City Plan 2014, specifically with the Strategic Framework, the Traditional Building Character (Design) Overlay Code, the Low-Medium Density Residential Zone Code, and the Multiple Dwelling Code. The primary issue before the court was whether the proposed development conflicted with the City Plan 2014 in terms of its intended height, bulk, and scale.

The court considered the developers’ and the council’s concession that there were some conflicts with the City Plan 2014. The central question was whether these conflicts were sufficient to warrant a refusal of the development application, absent sufficient grounds for approval. The council and the developers argued that despite the conflicts, sufficient grounds existed to warrant approval. The court needed to determine whether the council's decision to approve the development was justified under the circumstances.

In its decision, the court found that the conflicts with the City Plan 2014 were indeed significant and that the council had not adequately demonstrated sufficient grounds to warrant approval of the development. Consequently, the court allowed the appeal, setting aside the council's decision to approve the development application. The court ordered that further submissions be made by the parties regarding any consequential orders that may arise from the decision.

Orders

Orders of the court

The appeal is allowed.1.

I will hear further from the parties as to any consequential orders.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Petty & Ors v Brisbane City Council & Anor [2018] QPEC 2
PARTIES:	ALANA PETTY, DAVID BELL, JASON DAVIS, ASHLEY STAUNTON AND JOSEPH GRIFFIN (appellants) AND BRISBANE CITY COUNCIL (respondent) AND SINTRA DEVELOPMENTS PTY LTD ACN 132 603 171 (co-respondent)
FILE NO/S:	BD 1238 of 2017
DIVISION:	Planning and Environment Court, Brisbane
PROCEEDING:	Hearing of an appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	7 February 2018
DELIVERED AT:	Brisbane
HEARING DATE:	20, 21, 22, 23 and 24 November 2017
JUDGE:	RS Jones DCJ
ORDER:	The appeal is allowed.1. I will hear further from the parties as to any consequential orders.2.
CATCHWORDS:	APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where appellants local residents of the suburb of Camp Hill – where the respondent, the Brisbane City Council, approved development of a multi-unit development – where proposed development involved reconfiguration of a lot (four lots into two) – relocation and refurbishment of a pre-1946 heritage residential dwelling – where proposed development involved 16 units over three storeys WHERE CONFLICT WITH CITY PLAN 2014 CONCEDED BY DEVELOPERS AND BRISBANE CITY COUNCIL – where appellants alleged a number of conflicts with the city plan 2014 – where substantive conflicts concerned with conflicts with the Strategic Framework – conflict with the Traditional Building Character (Design) Overlay Code – where conflict alleged with the Low-Medium Density Residential Zone Code – where conflict alleged in respect of the Multiple Dwelling Code – where substantive dispute is whether the proposal is in conflict with City Plan 2014 by reference to its intended height, bulk and scale WHERE DEVELOPER AND BRISBANE CITY COUNCIL CONCEDE SOME CONFLICT WITH CITY PLAN 2014 – whether conflicts sufficient to warrant refusal in the absence of sufficient grounds – where respondent and co-respondent contend sufficient grounds exist to warrant approval notwithstanding conflict Integrated Planning Act 1997 Planning Act 2016 Planning and Environment Court Regulations 2016 Statutory Instruments Act 1992 Sustainable Planning Act 2009 AAD Design Pty Ltd v Brisbane City Council [2013] 1 QdR 1 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157 Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 Gerhardt v Brisbane City Council [2017] QCA 285 Grosser v Council of the City of Gold Coast [2001] QCA 423 Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271 Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPEC 29 Meridien AB Pty Ltd v Jackson [2013] QCA 121 Newing & Ors v Silcock & Ors [2010] QPELR 692 Platinum Design Architects v Brisbane City Council [2016] QPEC 58 Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Woolworths…