Sinnathamby v Purcell

[2002] QPEC 65

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Sinnathamby & Anor  v Purcell & Ors [2002] QPEC 065

PARTIES:

MAHALINGAM SINNATHAMBY AND

YOGAMPIKAY SINNATHAMBY

Applicants

and

CAROLYN MARY PURCELL, ALEXANDER HAGUE JOLLY AND EDITH ELIZABETH JOLLY

Respondents

FILE NO/S:

155 of 1999

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for interim enforcement order

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

20 September 2002

DELIVERED AT:

Southport

HEARING DATE:

26 July 2002

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Applicants to pay respondents’ costs of and incidental to the application assessed on the standard basis

CATCHWORDS:

LOCAL GOVERNMENT – INTERIM ENFORCEMENT ORDER – COSTS – Applicants seeking interim enforcement order against respondents alleged to be wrongly removing vegetation – applicants failing to prove there was a serious question to be tried, or that the balance of convenience favoured the making of an interim enforcement order – whether applicants should pay respondent’s costs

Integrated Planning Act (1997)

Cases considered:

Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (1997) QPELR

O’Connor v Herberton Shire Council (1998) QPELR

R D Williams Tractors Pty Ltd v Queensland (1998) QPELR

Tait v Townsville City Council (2001) QPELR

COUNSEL:

Mr Connor (solicitor) for applicants

Mr O’Brien for respondents

SOLICITORS:

Connor O’Meara for applicants

W T Purcell Chadwick & Skelly for respondents

Background

1. The applicants own property which adjoins that of the respondents in the vicinity of Chapel Hill Road, Chapel Hill.  In 2001 the respondents sought to rezone their land at 212-220 Chapel Hill Road, described as Lot 1 on RP 80491 and Lot 1 on RP 136948 Parish of Indooroopilly from the future urban zone to the residential A zone, and to subdivide that land into 10 allotments.  Approval was granted by the Brisbane City Council, but subject to conditions against which the respondents appealed.  The applicants were shown as respondents by election in that appeal (P & E Appeal No. 173 of 1999). 

2. On 2 May 2001 that appeal was resolved by consent and an order was made allowing it, and approving the respondents’ development application subject to amended conditions in an “Approval Package” attached to the order.  The documents comprising that Package included a Landscape Concept Plan 0045-1 (Edition C), and Landscape Details 0045-02 (Edition B).  The Plan showed the retention of an existing 10m wide vegetative screen on the southern boundary of the respondent’s land, immediately adjacent to the applicant’s property.  The Package also included, however, a section headed “Environmental Management” which provided that before the commencement of any site works on the respondents’ land they lodge and receive approval for a Vegetation Management Plan which was:

   “…to incorporate and be consistent with the approved Landscape Concept Plan, including the minimum buffer distances specified in Condition 6 of this approval and Landscape Details, Condition 1, and be able to be read in conjunction with the approved building location envelope plan required by Condition 5.”  

3. The Landscape Concept Plan also contained a legend indicating that within the 10m buffer zone there would be some…