Smout v Brisbane City Council - [2019] QPEC 10

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Smout v Brisbane City Council [2019] QPEC 10

PARTIES:

FRANCISCO SMOUT
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO:

2120/18

DIVISION:

Planning and Environment Court

PROCEEDING:

Applicant appeal against refusal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 and 29 February, 1 March 2019

JUDGE:

Williamson QC DCJ

ORDER:

Orders made in accordance with paragraph 60 of these reasons for judgment.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where appeal against the refusal of a development application seeking approval to realign boundaries of land and a material change of use for a dwelling house on a small lot – where land included in the Character residential zone – where minimum lot size in the zone is 450 square metres – where resulting lot size smaller than the prescribed minimum – whether new lots will maintain a block pattern that accommodates traditional backyards and large trees – whether the application should be approved in the exercise of the discretion.

LEGISLATION:

Planning Act 2016 (Qld), ss.5, 45 and 60.
Planning & Environment Court Act 2016, s.45.

CASES:

Bell v Brisbane City Council [2018] QCA 84

Jackson v Brisbane City Council [2018] QPELR 264.
Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPELR 1026

COUNSEL:

Ms H Stephanos for the Appellant

Mr J Ware for the Respondent

SOLICITORS:

Holding Redlich for the Appellant

City Legal for the Respondent

The Appellant is the owner of land[1] situated at the corner of Abbott and Massey Street, Ascot (the land). The land is 810m² in size, and comprises two rectangular lots that are in the order of 10m wide x 40m long. The lots are orientated with their narrowest width presenting to Abbott Street. The land is improved with a pre-1947 traditional character dwelling, which is orientated to Abbott Street, and straddles the two lots. The dwelling, unlike those that surround it, has a modest footprint and is ripe for redevelopment. Surrounding dwellings are predominantly traditional character buildings, many of which have been renovated, and extended. The Ascot State School is located to the north-west of the land on Massey Street.
[1]As a tenant in common.

In late November 2017, the Appellant made an impact assessable development application to the Council for a suite of approvals to redevelop the land. The proposed redevelopment involves realigning the boundaries of the land to create two square lots, both in the order of 400m². The proposal, if approved, would create two lots that are side-by-side. One of the lots will be a corner lot that is about 20m wide x 20m long. The second lot will have frontage to, and take access from Massey Street. It will be in the order of 20m wide x 20m long. The existing dwelling is proposed to be partially demolished, repositioned and renovated. It is to be repositioned on the new lot having frontage to Abbott Street.…

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: [2019] QPEC 10
Decision Date: 22 March 2019

CaseChat Overview and Summary

The case before the Court involved an appeal by Smout against the Brisbane City Council's refusal to approve a development application. The application sought permission to realign the boundaries of Smout's property and change the use of a dwelling house on a small lot. The property in question was situated within the Character residential zone, where the minimum lot size prescribed by the planning scheme was 450 square metres. The proposed re-alignment of boundaries would result in a lot size smaller than the minimum requirement. The core issue was whether the new lots would still maintain a block pattern conducive to traditional backyards and large trees, and whether the application should be approved in the exercise of the Council's discretion.

The legal issues before the Court were whether the proposed changes to the property complied with the planning scheme's requirements and if the Council's refusal was justified. Specifically, the Court needed to determine if the proposed lot size and the resultant block pattern met the standards set by the planning scheme, and whether the Council had appropriately exercised its discretion in denying the application. The Court also considered whether the proposed development would significantly affect the character and amenity of the neighbourhood.

In delivering the judgment, the Court found that while the proposed lot size did not meet the minimum requirement, the application did not significantly impact the character and amenity of the neighbourhood. The Court held that the new lots would maintain a block pattern that accommodated traditional backyards and large trees, which was a key consideration in the Character residential zone. The Council's discretion to refuse the application was balanced against the potential benefits of the proposed development, and the Court concluded that the application should be approved. The Court ordered that the Brisbane City Council grant the development application subject to certain conditions.

Orders

Orders of the court

Orders made in accordance with paragraph 60 of these reasons for judgment.

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:	Smout v Brisbane City Council [2019] QPEC 10
PARTIES:	FRANCISCO SMOUT (Appellant) v BRISBANE CITY COUNCIL (Respondent)
FILE NO:	2120/18
DIVISION:	Planning and Environment Court
PROCEEDING:	Applicant appeal against refusal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	22 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	28 and 29 February, 1 March 2019
JUDGE:	Williamson QC DCJ
ORDER:	Orders made in accordance with paragraph 60 of these reasons for judgment.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – where appeal against the refusal of a development application seeking approval to realign boundaries of land and a material change of use for a dwelling house on a small lot – where land included in the Character residential zone – where minimum lot size in the zone is 450 square metres – where resulting lot size smaller than the prescribed minimum – whether new lots will maintain a block pattern that accommodates traditional backyards and large trees – whether the application should be approved in the exercise of the discretion.
LEGISLATION:	Planning Act 2016 (Qld), ss.5, 45 and 60. Planning & Environment Court Act 2016, s.45.
CASES:	Bell v Brisbane City Council [2018] QCA 84 Jackson v Brisbane City Council [2018] QPELR 264. Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPELR 1026
COUNSEL:	Ms H Stephanos for the Appellant Mr J Ware for the Respondent
SOLICITORS:	Holding Redlich for the Appellant City Legal for the Respondent