PMM Group Pty Ltd v. Brisbane City Council

[2009] QPEC 25

[2009] QPEC 25

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1126 of 2006

PMM GROUP PTY LTD	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 03/04/2009

ORDER

CATCHWORDS: Integrated Planning Act 1997 s4.1.52(2)(b) - revised road layout in 23 lot subdivision now reduced (allaying council's drainage concerns) to 21 - increased park provision and an environmental protection zone covering vegetation on 8 lots held "minor change" - the road changes are conformable with what the adverse submitter (desirous of itself providing one of the roads) wanted.

HIS HONOUR:  The Court makes an order in terms of the initialled draft which has the effect that the developer's appeal against the Council's refusal of its application for development permit for reconfiguring two lots into 23 is allowed on condition set by the Court.

The Council is agreeable to the order being made in light of the changes that have been made to the proposal as presented to it and as publicly notified. It's therefore the Court's responsibility under section 4.1.52(2)(b) of the Integrated Planning Act 1997 to be satisfied that the changes that have occurred represent minor change for purposes of that provision otherwise the development proposal is not one that the Court can adjudicate upon in this proceeding.

The Court is required to consider the submissions that were made in the public notification period.  There was only one, from the landowner to the north of the development site.  The concern expressed, and I would say an unusual concern although I lack any understanding of the local conditions, was that the present appellant had arrogated to itself the privilege or responsibility of providing an east-west connection to Denham Street, Brackenridge, which runs along the western boundary of the site and the adverse submitter's land.

We're concerned with an emerging community area for which there's been structure planning covering the site and its neighbours north and south - that east-west connection was envisaged. The adverse submitter, doubtless with a plan of development in mind, wishes to have that east-west connection on its land to the north of the site. It gets its wish in the changed plans now placed before the Court for consideration under section 4.1.52(2)(b).

Indeed, the northern boundary of the development site undergoes considerable change of a kind which from any reasonable point of view is beneficial, particularly having regard to the public interest.  What was previously proposed as the east-west road will now become lot 1 out of a reduced total of 21 lots.  On opposite boundary of lot 1 from Denham Street is a road which was always proposed running north‑south through the site, connecting with Harrison Street to the south and allowing a future connection to the road system to the north and then to Denham Street when development there happens.

Across this new road are now proposed eight narrow lots.  The northern portions of which (approximately half of the area) will become an environmental protection zone allowing for the preservation of scores of trees.  As Mr Ellerman, for the appellant says, that represents a change but one not likely to cause any rational person to want to make an adverse submission.  South of those eight proposed allotments will run the east-west road within the site separating them from seven lots on the other side.  There will be six lots fronting Denham Street.

That new road will terminate at a park area on the east of the site which is increased from the originally proposed 2,201 square metres to 3,535 square metres and becomes more regular in shape.  The east west road within the site will turn right or south where it meets the park and connect with Densmore Street to the south.  There was originally proposed a north-south connection to Densmore Street but that will be blocked off by the proposed lot 14.

There's evidence before the Court from a traffic expert establishing that the traffic arrangements now proposed are sufficient and appropriate even disregarding the likelihood that they'll be enhanced by development to the north particularly to establish the Denham Street connection.

The reason for increase in park area is essentially to deal with drainage problems which the Council was concerned existed on the site, although the appellant's consultants took a different view.  The Council's concerns have now gone in light of the changes.

For reasons akin to those which I gave in the matter of Arnold v Gold Coast City Council [2006] QPEC 075, I am satisfied that the changes to be considered now are minor change and don’t stand in the way of the Court proceeding to allow the appeal by making the order indicated.

‑‑‑‑‑