Smith v Brisbane City Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Smith & Anor v Brisbane City Council [2009] QPEC 135

PARTIES:

DAVID JOHN SMITH and SEANN JOY SMITH

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

BD46 of 2009

DIVISION:

Appellate

PROCEEDING:

Developer’s conditions appeal

ORIGINATING COURT:

Planning & Environment Court

DELIVERED ON:

09 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

04 December 2009

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Integrated Planning Act 1997 s 3.5.30

Council approved reconfiguration of two lots into three and material change of use for three single unit dwellings (two new units) – condition of dedication of strip along frontage to widen footpath from current 1.75m (or greater) to 2.5m – whether condition satisfied test of relevance and reasonableness – whether unreasonable imposition on the development

COUNSEL:

N Kefford for the Appellants

T Trotter for the Respondent

SOLICITORS:

McInnes Wilson Lawyers for the Appellants

Brisbane City Legal Practice for the Respondent

1. This is a developer appeal against conditions of a development approval brought under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA).  By s 4.1.50(1) it is for the appellants to establish that the appeal should be upheld.  If the appeal fails, the development approval advised by the Council’s Decision Notice of 18 August 2008 remains intact.

1. The site is on the southern side of Cunningham Street, Taringa and comprises Lot 2 on Registered Plan 62646 (304m²) and Lot 3 on Registered Plan 62186 (611m²); their frontages are 7.544m and 15.088m respectively.  The street numbers are 91 and 93.  The development application identified the proposal as one involving new uses:

“1:        3 x single unit dwellings (2 new units plus one existing house)                   

and

2:          Subdivision (2 lots into 3 lots).”

The existing house is a post-war, red brick structure straddling both lots erected close to ground level at the front; there is a matching red brick fence along the footpath alignment (whose retention the appellants say would be a desirable feature).  The site falls away fairly steeply from Cunningham Street.   The house is to be retained and become Lot 1 (343.7m²); there is room in the back yard for two “single unit dwellings”, to be Lot 2 (358.2m²  and Lot 3 (206.6m²).  The new Lots 2 and 3 will be accessed by use of the existing driveway alongside the western boundary of the site; the driveway may become part of one or both of those lots.  The boundaries, particularly at the rear, remind one of a gerrymandered electorate, featuring a dozen bearings where one might ordinarily suffice.  The Council has approved the re-configuration subject to amendment to provide a 2.5m verge on Cunningham Street, which will have the effect of widening the footpath by something like 0.7 of a metre (which may not be consistent along the whole frontage).[1] The relevant conditions are the subject of the appeal. The appellants describe the Council’s exercise as a “land grab” and contend that the condition cannot be…