Victor G Feros v Brisbane City Council and Mark Stockwell

[2001] QPEC 77

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Victor G Feros v Brisbane City Council and Mark Stockwell [2001] QPEC 077

PARTIES:

VICTOR G FEROS  Appellant
And
BRISBANE CITY COUNCIL                   Respondent
And
MARK STOCKWELL  Co-respondent

FILE NO/S:

5289 of 2001

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 December, 2001

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2001

JUDGE:

Judge Quirk

ORDER:

Order resolved in favour of co-respondent

CATCHWORDS:

Byrne Bros. Pty Ltd v Maryborough City Council 1984-86 57 LGRA 419;  Returned and Services League of Australia (Victorian Branch) Inc, Glenroy Sub Branch v Moreland City Council and anor 1998 2VR406.

COUNSEL:

Mr V Feros appeared self-represented

Mr T Trotter for the respondent

Mr G Gibson QC & R Litster for the co-respondent

SOLICITORS:

Mr V Feros appeared self-represented

Brisbane City Legal Practice for the respondent

Deacons Lawyers for the co-respondent

1. In this matter, by order of His Honour, Judge Robin made on 16 November last, two preliminary points about the manner in which the application was made and publicly notified need to be determined.

1. The application was for approval of a multi-unit development on land on the north western corner of Kurilpa and Duncan Streets at West End.  To the west, the site borders land which is a subdivided allotment (Lot 387) held in trust by the Council for park purposes.  Passing through this riverside land is what is known as Riverside Drive which, as its name implies, follows the riverbank along the eastern side of the Milton and Toowong reaches.

1. The points raised by the appellant relate to:

1.          the form of the public notice; and

2.          whether all of the land, the subject of the application, was identified in the application.

1. The first of those points concerns advice included in the public notice that any person interested might attend at the offices of the co-respondent (located nearby) to inspect material relating to the application.  This piece of advice was in addition to the content of the notice required by the relevant legislation.  Material before me indicated that the material made available in this way was the same material that was required to be in and was available at the offices of the Council.

1. It is impossible to see how this matter involved any offence to the relevant legislative requirements which prescribe the material regarded as being sufficient to inform potential adverse submitters of the proposal.  It could not, on any sensible view of the matter, have caused any interested party to be misled about the application or its nature.  There is nothing in this point.

1. The second point was put forward as a “pioneer” point.  The road reserve of Kurilpa Street extends to the waters edge.  Riverside Drive, as constructed, crosses the road reserve.  The pavement of Kurilpa Street stops well short of Riverside Drive which is at a lower level.  The two pavements are separated by a grassy slope.

1. As part of the proposal it is intended that Kurilpa Street be extended to intersect with Riverside Drive to provide better connection between the two.  The Council was evidently in favour of these arrangements which were made perfectly clear in the material forming part of the application and available for public inspection.  The arrangements now form part of proposed condition 36 of the Council’s approval.

1. The connection of the two thoroughfares will require certain road works to provide necessary gradients and pavement configuration.  Almost all of these works will take place within the road reserve of Kurilpa Street and are not such as to require planning approval as the road reserve is not planned subject to planning control (see Byrne Bros. Pty Ltd v Maryborough City Council 1984-86 57 LGRA 419).

1. In any event there is no basis for a suggestion that these road works give rise to any Pioneer point.  The formation of the intersection is not integral to the application.   Access to the proposed development is provided to both Kurilpa and Duncan Street at points where those carriageways are presently constructed.

1. The works in question are external road works with which are, as indicated, subject to a condition of approval.  Conditions relating to external works of this kind are not uncommonly part of development approvals.  The indication in the material which formed part of the application as to how these works would be designed and carried out did not involve any transgression beyond the substance of the development proposed and certainly did not involve withholding from the application anything integral to the proposal (see Returned and Services League of Australia (Victorian Branch) Inc, Glenroy Sub Branch v Moreland City Council and anor 1998 2VR406 in the judgment of Hayne J.A. at 417-418).

1. The points raised are misconceived and must be resolved in favour of the co-respondent.  I order accordingly.