Pine Mountain Court Pty Ltd v Valente

[2000] QPEC 15

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Pine Mountain Court Pty Ltd & Ors v Valente & Anor [2000] QPE 015
PARTIES:	PINE MOUNTAIN COURT PTY LTD (ACN 010 179 745) AND IAN DUDLEY LOW AND IRENE LOW, GEORGE NICHOLAS JAMES AND CHRISTINE JAMES AND NICKITA ANTHONY ANGELOS AND KATRINA ANGELOS (Applicants) v NICHOLAS VALENTE AND PATRICIA ANN VALENTE (Respondents)
FILE NO/S:	No 4932 of 1999
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	3 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Quirk DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. In this matter declaratory relief is sought in respect of the legality of building work

   being carried out on land at Carina Heights. The work involves the construction of

   a dwelling house approval for which was the subject of an appeal heard in this

   Court in May of 1998. Consequent enforcement orders are also asked for. At the

   conclusion of the hearing I indicated that the application would be refused and that I

   would deliver written reasons for so deciding as soon as I could.

2. As can be seen from the written judgment dismissing the objector appeal (Londy &

   Jones v Brisbane City Council & Ors, 1998 QPELR 492) the need for town

   planning consent arose because the height of the proposed dwelling exceeded 8.5

   metres. Important issues in the appeal were whether the views and outlook of

   adjoining residents would be affected to an unreasonable degree and whether the

   design of the proposal was sufficiently in keeping with other development in the

   area.

3. Before the Court at the time was a set of drawings the identifying numbers of which

   were prefixed by the letters SK indicating that they were schematic rather than

   working drawings. The approval that was given was that the development was to

   be generally in accordance with the drawings which were before the Court.

4. Since the appeal a further set of drawings has been submitted for private

   certification pursuant to Pt 3 of Ch 5 of the Integrated Planning Act. These were

   working drawings and were identified as such. They were duly approved. It is

   noted that s 5.3.4 requires the private certifier to be satisfied that the plans are not

   inconsistent with the necessary Town Planning approval.

5. It is not suggested that the work is being undertaken other than in accordance with

   the plans approved by the private certifier but it is argued that those drawings

   indicate a form of development that is not generally in accordance with those

   considered by the Court.

6. It should be added that the complaints were made to the Brisbane City Council

   which looked into the matter. On 5 November 1999 the Council officer dealing

   with the officer wrote, in response to the relevant complaint:

   “With regard to your recent inquiry regarding the development occurring at 91 McGahn Street, Carina Heights please be advised as follows:

   Extensive investigations by several development and regulatory services personnel has resulted in Council forming the opinion that this development is proceeding generally in accordance with the development and building approval with certain minor reservations.

   ...Specifically, in regard to your queries about the overall height of the dwelling and the stormwater drainage, our investigations indicate the following:

   The approved building application shows an overall height of the dwelling generally in accordance with both the development approval and the Planning and Environment Court’s judgment of 15th May 1998”.

7. I do not intend to analyze in detail the complaints that were made before me. While

   opinions certainly differed, factual issues were not contested. Evidence came in the

   form of written statements and there was no cross-examination. The controversial

   items are identified in the material placed before the Court and it is accepted that

   these items were part of the proposal considered and approved by the private

   certifier. The implications of these changes were examined in this application

   principally by Mr Ryan (for the applicants) and Mr Buckley (for the respondent).

8. In deciding whether a proposal under consideration is “generally in accordance

   with” an earlier approval, “the significance of any particular deviation will depend

   on the criteria by which it is judged” (Grace Bros. v Willoughby Municipal Council

   (1980) 44 LGERA 400 at 406; Firefast Pty Ltd v Council of the City of Gold Coast

   (1999) QPELR 200).

9. It has to be remembered that the need for planning approval arose in this matter

   from the height exceedance over the 8.5 limit. The considerations relevant to the

   decision required were identified in the earlier judgment. The matters that have

   been raised here have little if any impact on those considerations. There has been

   no significant increase in building height. While there may have been some minor

   changes to building length and width these are of no real consequence in a fair

   appreciation of building bulk. I believe that Mr Buckley was correct in his

   observation that:

   “The changes have most impact on the lower ground and ground levels where the effect on the changes does not impact on outlook from properties at the rear”.

10. Many of the changes involved architectural detailing of features more loosely

    identified in earlier drawings. It is common experience that working drawings

    contain more detail than and some refinement of schematic drawings. Some

    changes to arrangements for the pool area and retaining walls were referred to but

    proved not to involve planning issues.

11. I am satisified that, in the context of the decision that was made on appeal, the

    matters raised in this application would not have had any bearing upon that decision had they been part of the proposal at the time. Having decided the earlier matter I

    am confident in that view.

12. For these reasons I am satisfied that the proposal as approved by the private certifier

    is generally in accordance with the earlier approval. The application must be

    refused.