Robertson v Brisbane City Council - [2021] QPEC 44

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44

PARTIES:

MARK ROBERTSON and FREYA ROBERTSON

(first applicants)

And

JOHN BENNETT and SALLY BENNETT

(second applicants)

v
BRISBANE CITY COUNCIL
(first respondent)
And
WEYERS DEVELOPMENTS PTY LTD
(ACN 102 288 237)
(second respondent)
And
RD NOMINEES PTY LTD
(ACN 109 341 791)

(third respondent)

FILE NO:

607 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an originating application

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

2 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

30 and 31 August 2021

JUDGE:

RS Jones DCJ

ORDER:

1. The application is dismissed.

2. I will hear from the parties if necessary, as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – ORIGINATING APPLICATION – where respondent council approved development application for permit for building works and material change of use for multiple dwellings – where development application approved subject to conditions requiring work on Transport Network to remove existing safety barrier for the purposes of refuse collection – where originating application sought declaratory relief – where relief sought concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where application dismissed

ASSESSMENT BENCHMARKS – where development application approved subject to code assessment – whether jurisdictional error as to basis of assessment – whether development application ought have been impact assessable – whether proper construction of development application such that it can be inferred the developer sought approval for four storey dwelling – whether rooftop area comprising lift shaft and stairs constitutes storey – whether approval of development application unreasonable in context – whether council failed to exercise statutory discretion to approve or refuse development application

LEGISLATION:

Planning Act 2016 (Qld) s 60

Planning and Environment Court Act 2016 (Qld) s 11

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1

Australia Pacific LNG Pty Ltd v The Treasurer & Ors [2019] QSC 124

Craig v South Australia [1995] HCA 58; 184 CLR 163

Ferreyra v Brisbane City Council [2016] QPEC 10; [2016] QPELR 334

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Project Blue Sky v Australian Broadcasting Association [1998] HCA 28; [1998] 194 CLR 355

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors [2021] QCA 95

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82

COUNSEL:
Mr SJ Carius with Mr R Yuen for the applicants
Mr G Gibson QC with Mr N Loos for the first respondent

Mr D O’Brien QC with Mr W Macintosh for the second and third respondents

SOLICITORS:
Connor O’Meara Solicitors for the applicants

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: [2021] QPEC 44
Decision Date: 2 September 2021

CaseChat Overview and Summary

Robertson initiated an originating application against the Brisbane City Council, seeking to challenge the approval of a development application for building works and a material change of use for multiple dwellings. The application was approved by the Council, subject to specific conditions, including modifications to the Transport Network to facilitate refuse collection. The applicant sought a declaration that the decision notice approving the development application was void and ineffective, as well as an order setting aside the decision notice.

The central legal issues in the case were whether the development application was subject to a jurisdictional error in its assessment, particularly regarding the basis of the assessment and whether the application should have been impact assessable. Additionally, the court had to determine whether the development application could be properly construed to indicate that the developer sought approval for a four-storey dwelling, and whether the rooftop area, comprising a lift shaft and stairs, constituted a storey. The court also examined whether the approval of the development application was unreasonable in the given context and whether the Council failed to exercise its statutory discretion in approving or refusing the development application.

In assessing the matter, the court found that the approval of the development application was not subject to a jurisdictional error. The court determined that the proper construction of the development application did not infer that the developer sought approval for a four-storey dwelling, and the rooftop area did not constitute a storey. The court also found that the approval of the development application was not unreasonable in context, and the Council had exercised its statutory discretion appropriately. Consequently, the court dismissed the originating application, finding that the decision notice approving the development application was not void and should not be set aside.

The court ordered that the application be dismissed and indicated that it would hear from the parties if necessary, regarding any consequential orders.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear from the parties if necessary, as to any consequential orders.

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:	Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44
PARTIES:	MARK ROBERTSON and FREYA ROBERTSON (first applicants) And JOHN BENNETT and SALLY BENNETT (second applicants) v BRISBANE CITY COUNCIL (first respondent) And WEYERS DEVELOPMENTS PTY LTD (ACN 102 288 237) (second respondent) And RD NOMINEES PTY LTD (ACN 109 341 791) (third respondent)
FILE NO:	607 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Hearing of an originating application
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	2 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	30 and 31 August 2021
JUDGE:	RS Jones DCJ
ORDER:	1. The application is dismissed. 2. I will hear from the parties if necessary, as to any consequential orders.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – ORIGINATING APPLICATION – where respondent council approved development application for permit for building works and material change of use for multiple dwellings – where development application approved subject to conditions requiring work on Transport Network to remove existing safety barrier for the purposes of refuse collection – where originating application sought declaratory relief – where relief sought concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where application dismissed ASSESSMENT BENCHMARKS – where development application approved subject to code assessment – whether jurisdictional error as to basis of assessment – whether development application ought have been impact assessable – whether proper construction of development application such that it can be inferred the developer sought approval for four storey dwelling – whether rooftop area comprising lift shaft and stairs constitutes storey – whether approval of development application unreasonable in context – whether council failed to exercise statutory discretion to approve or refuse development application
LEGISLATION:	Planning Act 2016 (Qld) s 60 Planning and Environment Court Act 2016 (Qld) s 11
CASES:	AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 Australia Pacific LNG Pty Ltd v The Treasurer & Ors [2019] QSC 124 Craig v South Australia [1995] HCA 58; 184 CLR 163 Ferreyra v Brisbane City Council [2016] QPEC 10; [2016] QPELR 334 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Project Blue Sky v Australian Broadcasting Association [1998] HCA 28; [1998] 194 CLR 355 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors [2021] QCA 95 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82
COUNSEL:	Mr SJ Carius with Mr R Yuen for the applicants Mr G Gibson QC with Mr N Loos for the first respondent Mr D O’Brien QC with Mr W Macintosh for the second and third respondents
SOLICITORS:	Connor O’Meara Solicitors for the applicants