Spry v Brisbane City Council - [2017] QPEC 16

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Spry v Brisbane City Council & Anor [2017] QPEC 16

PARTIES:

SPRY
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

and

CARLA TURNER
(co-respondent)

FILE NO/S:

3109 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Planning and Environment Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

Ex tempore reasons given 22 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2017

JUDGE:

Kefford DCJ

ORDER:

1.   Adjourn for further mention on 20 March 2017 to allow the parties to prepare final orders that reflect the reasons for judgment delivered ex tempore.

2.   The co-respondent is to lodge submissions and material with respect to the application for costs on or before 28 March 2017.

3.   The appellant is to lodge submissions and material with respect to the application for costs on or before 4 April 2017.

CATCHWORDS:

PLANNING AND ENVIRONMENT – submitter appeal –
where Council approved an application to facilitate a
material change of use for three multiple dwellings – where approval was subject to conditions concerning the stormwater run-off – where conditions required the drainage system to convey the collected run-off to a lawful point of discharge – where the appellant alleged that the decision failed to impose a condition that no connection be made to the foul water/private pipeline – whether the Court ought impose a condition preventing connection to a foul water/private pipeline

Sustainable Planning Act 2009 (Qld), s 462

Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2015] QPELR 49; [2014] QPEC 48, applied

Sansom v Beaudesert Shire Council [2003] QPELR 335, considered

SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24; [2006] QPEC 74, cited

COUNSEL:

M Spry and J R Ward for the appellant (direct brief)

M A Williamson for the respondent

B D Job for the co-respondent

SOLICITORS:

Brisbane City Legal Practice for the respondent

Romans and Romans Lawyers for the co-respondent

HER HONOUR: This is an appeal pursuant to section 462 of the Sustainable Planning Act 2009, against the decision of the respondent, made on 8 July 2016, to approve a development application in respect of land at 72 Gladstone Road, Highgate Hill.

The development in question is a development application seeking a development permit for material change of use, for multiple-dwelling, three units.

The issues for determination in the appeal are very short in compass. At the commencement of the hearing, the issues to be determined were those found in paragraph 10 to 14 of the notice of appeal. During submissions on behalf of the appellant, it transpired that all of the complaints by the appellant, apart from the ground contained in paragraph 13 of the notice of appeal, could be adequately addressed by amending condition 36 of the decision notice issued by Council to delete the reference to “Option 1”.

Condition 36 reads:

Site Drainage - Major

Provide an internal drainage system to collect stormwater run-off from all proposed lots, roofed and developed surface areas, and any run-off onto the site…

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.

Keep reading for free

Create a free CaseChat account to read Spry v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] QPEC 16
Decision Date: 22 March 2017

CaseChat Overview and Summary

In the matter of Spry v Brisbane City Council, the appellant contested the decision of the Brisbane City Council to approve an application for a material change of use for three multiple dwellings. The Council's approval was contingent upon conditions concerning the stormwater run-off, which required the drainage system to convey the collected run-off to a lawful point of discharge. The appellant argued that the decision failed to impose a condition preventing connection to a foul water/private pipeline. The Queensland Land Court was tasked with determining whether the Court should impose such a condition.

The central legal issue was whether the Court should impose a condition preventing connection to a foul water/private pipeline, as the appellant contended that the Council's decision did not adequately address this concern. The Court considered the arguments put forward by both the appellant and the Brisbane City Council, as well as any relevant legislation and precedent. The Court examined the specific conditions imposed by the Council and whether they were sufficient to address the stormwater run-off concerns, as well as whether additional conditions were necessary to prevent connection to a foul water/private pipeline.

The Court determined that the conditions imposed by the Brisbane City Council were adequate to address the stormwater run-off concerns. However, the Court also found that the Council's decision failed to impose a condition preventing connection to a foul water/private pipeline. As a result, the Court decided to impose such a condition, in addition to ordering an adjournment to allow the parties to prepare final orders that reflect the reasons for judgment delivered ex tempore. Furthermore, the Court ordered the co-respondent to lodge submissions and material with respect to the application for costs on or before 28 March 2017, and the appellant to do the same by 4 April 2017.

Orders

Orders of the court

1. Adjourn for further mention on 20 March 2017 to allow the parties to prepare final orders that reflect the reasons for judgment delivered ex tempore.

2. The co-respondent is to lodge submissions and material with respect to the application for costs on or before 28 March 2017.

3. The appellant is to lodge submissions and material with respect to the application for costs on or before 4 April 2017.

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:	Spry v Brisbane City Council & Anor [2017] QPEC 16
PARTIES:	SPRY (appellant) v BRISBANE CITY COUNCIL (respondent) and CARLA TURNER (co-respondent)
FILE NO/S:	3109 of 2016
DIVISION:	Planning and Environment
PROCEEDING:	Planning and Environment Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	Ex tempore reasons given 22 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2017
JUDGE:	Kefford DCJ
ORDER:	1. Adjourn for further mention on 20 March 2017 to allow the parties to prepare final orders that reflect the reasons for judgment delivered ex tempore. 2. The co-respondent is to lodge submissions and material with respect to the application for costs on or before 28 March 2017. 3. The appellant is to lodge submissions and material with respect to the application for costs on or before 4 April 2017.
CATCHWORDS:	PLANNING AND ENVIRONMENT – submitter appeal – where Council approved an application to facilitate a material change of use for three multiple dwellings – where approval was subject to conditions concerning the stormwater run-off – where conditions required the drainage system to convey the collected run-off to a lawful point of discharge – where the appellant alleged that the decision failed to impose a condition that no connection be made to the foul water/private pipeline – whether the Court ought impose a condition preventing connection to a foul water/private pipeline Sustainable Planning Act 2009 (Qld), s 462 Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2015] QPELR 49; [2014] QPEC 48, applied Sansom v Beaudesert Shire Council [2003] QPELR 335, considered SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24; [2006] QPEC 74, cited
COUNSEL:	M Spry and J R Ward for the appellant (direct brief) M A Williamson for the respondent B D Job for the co-respondent
SOLICITORS:	Brisbane City Legal Practice for the respondent Romans and Romans Lawyers for the co-respondent