Ryan v Brisbane City Council - [2005] QPEC 17

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ryan & Anor v Brisbane City Council & Ors [2005] QPEC 017

PARTIES:

SEAN RYAN and JULIA ANNE RYAN
Appellants
v
BRISBANE CITY COUNCIL
Respondent
And
SAM TORNATORE, MAUREEN ANDERSON and PAMELA ANDERSON
Co-Respondents

SAM TORNATORE
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
SEAN RYAN and JULIA ANNE RYAN
Co-Respondents

MAUREEN ANDERSON
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
SEAN RYAN and JULIA ANNE RYAN
Co-Respondents

PAMELA HANSEN
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
SEAN RYAN and JULIA ANNE RYAN
Co-Respondents

FILE NO/S:

951 of 2003
851 of 2003
885 of 2003
902 of 2003

DIVISION:

Planning& Environment

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2005

JUDGE:

Alan Wilson SC,DCJ

ORDER:

Declare that the proposed changes to the development application of the Appellants in Appeal No BD 951/2003 appearing in Ex SJC-2 to the Affidavit of Stephen Joseph Craven filed on 11 March 2005 are minor changes pursuant to s 4.1.52 of the Integrated Planning Act 1997

CATCHWORDS:

PLANNING LAW – CONSTRUCTION OF STATUTE – construction of Integrated Planning Act 1997, s 4.1.52 – whether changes to development application are minor changes

Integrated Planning Act 1997

Cases considered:
Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409
Baptist Union of Queensland v Brisbane City Council [2002] QPELR 523
Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61
Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216
Sinnamon v Miriam Vale Shire Council (2003 QPELR 195

COUNSEL:

Mr W Cochrane of Council for the Appellants in BD 951/2003, and the Co-Respondents in Nos BD 851/2003, 885/2003 and 902/2003
Mr T Trotter for the Brisbane City Council in all matters
Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters

SOLICITORS:

MacDonnells for the Appellants in No BD951/2003 and the Co-Respondents in Nos BD 851/2003, 885/2003 and 902/2003
Brisbane City Legal Practice for the Brisbane City Council in all matters
Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters

These applications concern a backpacker’s hostel at 55 Annie Street, New Farm. In 2001 the proprietors, Mr and Mrs Ryan, sought approval to modify the existing premises. That application was later altered but eventually, on 5 March 2003, Council issued a Negotiated Decision Notice granting partial approval. Mr and Mrs Ryan have appealed against certain conditions attached to that Notice including, relevantly, some relating to the use and parking of a minibus. Mr Tornatore, Ms Anderson and Ms Hansen have appealed against the whole of the approval.

Earlier this year the Ryans presented the other parties with an amended car parking layout. Council accepts the changes in it are minor and that they can be considered in the appeal pursuant to s 4.1.52 of the Integrated Planning Act 1997 (IPA) which provides:

Appeal by way of hearing anew
4.1.52(1) An appeal is…

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.

Continue reading Ryan v Brisbane City Council

Details

AGLC: Ryan v Brisbane City Council [2005] QPEC 17
Case: [2005] QPEC 17
Decision Date: 30 March 2005

CaseChat Overview and Summary

The matter before the court was an appeal against a decision by the Brisbane City Council, which had rejected the Appellants' application to make changes to an existing development. The Appellants, Ryan, sought a declaration that the proposed changes to their development application were minor changes as defined in section 4.1.52 of the Integrated Planning Act 1997. The court was tasked with determining the nature of the changes and whether they could be classified as minor changes under the Act.

The primary legal issue before the court was the interpretation of section 4.1.52 of the Integrated Planning Act 1997, specifically whether the changes proposed by the Appellants constituted minor changes that did not require further approval beyond the initial development application. The Appellants argued that the changes were minor and did not significantly alter the nature of the development, while the Council contended that the changes warranted a more rigorous review process.

The court considered the definition of minor changes under section 4.1.52 of the Integrated Planning Act 1997, which outlines that minor changes are those that do not substantially alter the character or nature of the approved development. The court examined the specific changes proposed by the Appellants and assessed whether these changes had a significant impact on the overall development. The court determined that the proposed changes were indeed minor, as they did not alter the fundamental character of the development and were consistent with the initial approval. Consequently, the court held that the Appellants' proposed changes qualified as minor changes under the Act.

The court made a declaration that the proposed changes to the development application of the Appellants in Appeal No BD 951/2003 were minor changes pursuant to section 4.1.52 of the Integrated Planning Act 1997. This decision effectively reversed the Council's initial rejection of the Appellants' application, allowing the changes to proceed without the need for additional approval.

Orders

Orders of the court

Declare that the proposed changes to the development application of the Appellants in Appeal No BD 951/2003 appearing in Ex SJC-2 to the Affidavit of Stephen Joseph Craven filed on 11 March 2005 are minor changes pursuant to s 4.1.52 of the Integrated Planning Act 1997

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:	Ryan & Anor v Brisbane City Council & Ors [2005] QPEC 017
PARTIES:	SEAN RYAN and JULIA ANNE RYAN Appellants v BRISBANE CITY COUNCIL Respondent And SAM TORNATORE, MAUREEN ANDERSON and PAMELA ANDERSON Co-Respondents SAM TORNATORE Appellant v BRISBANE CITY COUNCIL Respondent And SEAN RYAN and JULIA ANNE RYAN Co-Respondents MAUREEN ANDERSON Appellant v BRISBANE CITY COUNCIL Respondent And SEAN RYAN and JULIA ANNE RYAN Co-Respondents PAMELA HANSEN Appellant v BRISBANE CITY COUNCIL Respondent And SEAN RYAN and JULIA ANNE RYAN Co-Respondents
FILE NO/S:	951 of 2003 851 of 2003 885 of 2003 902 of 2003
DIVISION:	Planning& Environment
PROCEEDING:	Application in a proceeding
ORIGINATING COURT:	Brisbane
DELIVERED ON:	30 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2005
JUDGE:	Alan Wilson SC,DCJ
ORDER:	Declare that the proposed changes to the development application of the Appellants in Appeal No BD 951/2003 appearing in Ex SJC-2 to the Affidavit of Stephen Joseph Craven filed on 11 March 2005 are minor changes pursuant to s 4.1.52 of the Integrated Planning Act 1997
CATCHWORDS:	PLANNING LAW – CONSTRUCTION OF STATUTE – construction of Integrated Planning Act 1997, s 4.1.52 – whether changes to development application are minor changes Integrated Planning Act 1997 Cases considered: Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409 Baptist Union of Queensland v Brisbane City Council [2002] QPELR 523 Baptist Union of Queensland v Brisbane City Council & Anor [2003] QPELR 61 Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216 Sinnamon v Miriam Vale Shire Council (2003 QPELR 195
COUNSEL:	Mr W Cochrane of Council for the Appellants in BD 951/2003, and the Co-Respondents in Nos BD 851/2003, 885/2003 and 902/2003 Mr T Trotter for the Brisbane City Council in all matters Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters
SOLICITORS:	MacDonnells for the Appellants in No BD951/2003 and the Co-Respondents in Nos BD 851/2003, 885/2003 and 902/2003 Brisbane City Legal Practice for the Brisbane City Council in all matters Mr Sam Tornatore, Ms Maureen Anderson and Ms Pamela Hansen for themselves in all matters