Toro v Brisbane City Council - [2019] QPEC 53

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Toro v Brisbane City Council & Anor [2019] QPEC 53

PARTIES:

JOHN WILLIAM ANTONIO TORO
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

and

PETER CHARLES HAYES
(Co-Respondent by Election)

FILE NO:

4223/18

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

1 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23-24 October 2019

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a material change of use to reposition an existing pre-1946 dwelling house and reconfigure a lot to create an extra lot in the character residential zone

ASSESSMENT – compliance with the planning scheme – whether the proposed development accommodates a traditional backyard and otherwise complies with the planning scheme

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16

Bell v Brisbane City Council & Ors [2018] QCA 84

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317

Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5

Smout v Brisbane City Council [2019] QPEC 10

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

COUNSEL:

H Stephanos for the appellant
K Buckley for the respondent
B Rix for the co-respondent by election

SOLICITORS:

Norton Rose Fulbright Australia for the appellant
Brisbane City Legal Practice for the respondent
Keypoint Law for the co-respondent by election

Introduction

This is an appeal against the refusal by the respondent of a development application for a development permit for a material change of use (dwelling house on a small lot in the Traditional Building Character Overlay (“TBCO”)) and reconfiguring a lot (1 into 2 lots in the Character Residential Zone (“CRZ”)) in respect of land situated at 748 Sherwood Road, Sherwood (“the Land”). Essentially, the appellant proposes to reposition the existing pre-1946 dwelling house to the north to allow for the reconfiguration of the Land into two small lots.[1]
[1]Exhibit 2, p 8.

The appellant brought a minor change application which was approved by an order of the court on 7 August 2019. This had the effect of providing an indicative building footprint for a future dwelling house on proposed lot 2.[2] As a consequence, the respondent changed its position such that it supported approval of the development application on the condition of the amended plans reflecting this change. Accordingly, at the hearing of the appeal it did not call evidence and supported the position of the appellant that the appeal should be allowed on this basis.[3]
[2]Exhibit 5, p 8; Exhibit 8, p 16.
[3]Written submissions on behalf of the respondent, p 3.

The land and the surrounding area

The Land is rectangular in shape with an area of 817m². It has a frontage to Sherwood Road to the north of approximately 20m and Dewar Terrace to the west of approximately 40m. Along…

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 53
Decision Date: 1 November 2019

CaseChat Overview and Summary

The case involved Toro, the appellant, who sought to appeal a decision by the Brisbane City Council regarding a material change of use to reposition an existing pre-1946 dwelling house and reconfigure a lot to create an additional lot within a character residential zone. The Brisbane City Council, as the respondent, defended the refusal of the application. The dispute reached the court, where the primary issue was the compliance of the proposed development with the planning scheme, specifically whether it accommodated a traditional backyard and adhered to the requirements of the planning scheme.

The court was tasked with determining whether the appellant's proposed development met the conditions set out in the planning scheme. This involved a thorough analysis of the proposed changes to the property, including the repositioning of the dwelling house and the reconfiguration of the lot. The court had to assess whether the proposed development complied with the requirements for a traditional backyard and other relevant provisions of the planning scheme. Additionally, the court needed to consider whether the appellant's proposal aligned with the broader objectives and policies of the planning scheme.

In its decision, the court found that the proposed development did not comply with the planning scheme. The court held that the proposed changes to the property, particularly the reconfiguration of the lot to create an additional lot, did not adequately accommodate a traditional backyard as required by the planning scheme. Furthermore, the court determined that the proposed development did not align with the objectives and policies of the planning scheme. Consequently, the appeal was dismissed, and the decision of the Brisbane City Council was upheld.

Orders

Orders of the court

Appeal dismissed

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:	Toro v Brisbane City Council & Anor [2019] QPEC 53
PARTIES:	JOHN WILLIAM ANTONIO TORO (Appellant) v BRISBANE CITY COUNCIL (Respondent) and PETER CHARLES HAYES (Co-Respondent by Election)
FILE NO:	4223/18
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	1 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	23-24 October 2019
JUDGE:	Everson DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a material change of use to reposition an existing pre-1946 dwelling house and reconfigure a lot to create an extra lot in the character residential zone ASSESSMENT – compliance with the planning scheme – whether the proposed development accommodates a traditional backyard and otherwise complies with the planning scheme
LEGISLATION:	Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld)
CASES:	Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Bell v Brisbane City Council & Ors [2018] QCA 84 Broad v Brisbane City Council & Anor [1986] 2 Qd R 317 Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5 Smout v Brisbane City Council [2019] QPEC 10 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
COUNSEL:	H Stephanos for the appellant K Buckley for the respondent B Rix for the co-respondent by election
SOLICITORS:	Norton Rose Fulbright Australia for the appellant Brisbane City Legal Practice for the respondent Keypoint Law for the co-respondent by election