Tranquility Family Trust v Brisbane City Council

[2009] QPEC 124

[2009] QPEC 124

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E No 2537 of 2009

TRANQUILITY FAMILY TRUST AND ANOR	Applicant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 01/10/2009

ORDER

CATCHWORDS:

Integrated Planning Act 1997 s 3.5.33

Condition in development approval constituted by a court order changed to reduce clearance for certain under cover parking - otherwise a pre-1946 dwelling would have had to be raised - what was necessary to give the assessment manager notice of the change considered - it appeared on and supported the application

HIS HONOUR: This is an application by a developer under section 3.5.33 of the Integrated Planning Act (1997) to change the conditions imposed on a development approval by a judge of the court on 18th of May, 2005, in Appeal Number BD1333 of 2004.

The appellant, Mr Brown, had lodged a submission against the proposal, and appealed against the Council's decision.  The outcome was an order of the court which among other things required that undercover car parking beneath buildings have a 2.3 metre clearance.

There is no requirement to lift a pre-1946 dwelling.  If it's to remain where it is, which is presumably considered a good thing, rather than be raised.  The clearance for parking underneath is only 1.8 metres.  The only change of conditions sought would involve accepting that reduced clearance for part of the parking in the development.  In my opinion that does not constitute development in a way which would preclude the court's now acting as requested.

Mr Brown has been served, it seems, and elected not to be heard in this proceeding.  It is difficult to imagine that he could have any difficulty whatsoever with what is proposed.

I was intrigued at the requirement in the draft order handed up that a copy of the judgment be served on the Council, such service to be deemed to be compliance with section 3.5.33 (9) of the Act. The sub-section provides that "if the entity is a concurrent agency or the court the entity must give the assessment manager written notice of any change or cancellation".

Service on the Council seems to involve unnecessary effort, given that the Council represented by Ms Johnston has appeared in the application, and indeed played an active role in explaining to the court why it ought to succeed.

On the other hand, I can understand why Mr Joyce's client does not wish to be at risk of it being asserted at some time in the future that sub-section (9) wasn't complied with, just as the application is no doubt inspired by the wish to obtain protection against some unfortunate event such as a contract falling through because of non compliance with the 2005 condition.

What is proposed is, I agree with the parties, a suitable way of dealing with the sub-section (9) situation.  A practical explanation for taking this course may well be that the ordinary member of the public concerned to search approvals in respect of the site, is likely to do on a by reference to the records held in the Council rather than those held in the court. 

Order as per initialled draft.

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