Riethmuller v Brisbane City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Riethmuller v Brisbane City Council & Anor [2004] QPEC 063
PARTIES:	PAUL ANTHONY RIETHMULLER Appellant v BRISBANE CITY COUNCIL Respondent And KEVIN HAYES ARCHITECTS Co-Respondent
FILE NO/S:	BD2211/04
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment, Brisbane
DELIVERED ON:	1 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2004
JUDGE:	Robin QC DCJ
ORDER:	Co-respondent’s application for striking out of “adverse submitter” appeal adjourned
CATCHWORDS:	Integrated Planning Act 1997 s 4.1.5A, s 4.1.23, s 4.1.28, s 4.1.55 – Co-respondent’s application to strike out “adverse submitter” appeal as incompetent – appellant’s submission against development application received one day late – notice of appeal filed late – assuming appellant not entitled to appeal as “submitter” because his was not a properly made submission, whether s 4.1.5A might save appellant – whether s4.1.55 might save a late appeal
COUNSEL:	No appearance by or for appellant Mr T Trotter for respondent Mr P Favell for co-respondent
SOLICITORS:	Brisbane City Legal Practice for respondent Co-respondent self-represented

1. The following are the Court’s reasons for adjourning the hearing of an application to strike out an appeal as incompetent, which hearing a Judge had directed take place on 27 October 2004; they incorporate a description of views provisionally reached on that day.

1. The appellant represents himself in an “adverse submitter” appeal which is in the following terms:

“Filed on:  21 June 2004
  Filed by:  Paul A. Riethmuller
  Service Address:        92 Waverley St, Annerley QLD 4103
  Phone:  [phone]

Paul Anthony Riethmuller of 92 Waverley Street Annerley appeals to the Planning and Environment Court at Brisbane against the decision of the respondent to approve the application by the co-respondent for a development permit for making a material change of use in respect of land situated at 102 Waverley Street, Annerley and described as Lot 80 on RP37801, Parish of Y’pilly and seeks the following orders or judgements:

The appeal be allowed;
             The application be refused; and

Such further or consequential orders as the Court considers appropriate.

The grounds of appeal are:

1.  Inadequate car parking provision.  The parking provided is not clearly visible from the street and one of the parking bays must double as a pathway to recycling bins.

2.  The proposal is for building of bulk and style that does not complement other residences in this Demolition Control Precinct.

3.  The approved Gross Floor area would exceed the permissible if the notice of realignment on this property were taken into account.

(Paul A. Riethmuller, Appellant)”

1. The development application was for a material change of use for multi-unit dwellings (5 units) and included demolition of an existing pre 1946 dwelling.  Contrary to the assertion contained in the first line quoted above, the Court’s stamp shows that the Notice of Appeal was filed on 22 June 2002.  The respondent and the co-respondent filed an Entry of Appearance on 28 June 2004 and 1 July 2004 respectively.

1. The next step was the co-respondent’s filing of an Application for Directions…