Samios v Brisbane City Council

[2011] QPEC 91

[2011] QPEC 91

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 228 of 2010

ANDREW SAMIOS & ANOR	Appellants
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 09/06/2011

..DAY 1

CATCHWORDS

Sustainable Planning Act 2009 s 350, s 482

Appeal against Council's refusal of a development application to regularise use of a house for offices - extension of time granted to allow rectification of notices given of the appeal to include advice of entitlement to become a party - minor change to application to include landscaping at the expense of car park provision led Council to reverse its attitude - appeal allowed by consent
HIS HONOUR:  The Court makes an order in terms of the initialled draft at the joint invitation of the appellant developer whose development application to the respondent was refused and of the respondent council.

The application sought to change the use of a building which was originally a house to offices.

...

HIS HONOUR:  I am grateful to Mr Cowen, representing the appellants, for the explanation that the development application was made to regularise a use that had been going on for some time.

There are a couple of special features requiring the Court's attention, the first being changes to the proposal which must satisfy the test of minor change in section 350 of the Sustainable Planning Act 2009 which provides the test notwithstanding that the application was made under the predecessor legislation. The other special feature concerns the deficiencies in the notices of the appeal which went to the Department of Infrastructure and Planning and, more importantly, to Mr Todhunter who was the sole submitter.

The original notices posted out by Maria Samios on 29 January 2010 simply provided "by way of service" the notice of appeal. There was no intimation to the addressees of their entitlement to become a party in the appeal if that was their desire as required by section 482(3).

Mr Cowen, the planner who has been assisting the appellants, rectified that situation by separate letters sent out to those entitled to notice of the appeal on 19 May 2011 which clearly advise the addressees' entitlement to elect to be a co-respondent by filing the appropriate document in the Court within 10 business days after the giving of the notice.  It is appropriate that the order extend to 19 May 2011 the time for service of such notices of appeal.

The minor change issue concerns the introduction of landscaping around the perimeter of the parcel of land on which the building is located at the expense of some of the parking provision which has been available on the site hitherto.  No landscaping or the like was proposed in the application - which may have had much to do with the council's refusal of it.  The council has made the assessment that the parking provision remaining is appropriate and the Court is content to go along with that.

Order as per initialled draft.

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