Wallin v Brisbane City Council

[2005] QPEC 61

[2005] QPEC 061

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Application No 1540 of 2005

ANN WALLIN	Applicant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 08/07/2005

ORDER

HIS HONOUR:  This is an application to change a condition of a development approval which was the subject of a Court order dated the 2nd of August 2002.  The condition imposed pursuant to that Court order was one which was imposed in accordance with the consent of the parties at the time.  The condition, or the relevant part of it, seeks to constrain the range of business premises which were permitted to be established in an existing building pursuant to the approval.

Subsequent to the approval, the City Plan has commenced and pursuant to the relevant level of assessment table, provides for activities, including relevantly, a real estate agency, which was prohibited by the condition in question, to be carried out within the subject building as self-assessable development, subject to qualifications relating to compliance with the Commercial Character Building Code.

The position of the applicant is that, since the City Plan provides the source of authority for the commencement of the real estate agency use, that the condition prohibiting such a use in the Court order no longer has any utility and is, to the extent that it conflicts with the City Plan, a matter which is apt to give rise to confusion.  Indeed, in other proceedings, the question of the lawfulness of the current real estate agency, notwithstanding its conflict with the conditions of the earlier approval, has been a matter which has been the subject of debate.  That debate was dealt with by way of separate reasons given by me today in a matter of Stahn v. Brisbane City Council and Anor, P & E Appeal No 954 of 2004.  I do not intend to repeat the detail of what I said in those reasons.

My conclusion was that, whilst the factual matters were not sufficiently established to enable me to reach a positive conclusion that the use currently carried out on the site is self-assessable, I accepted the submission that, to the extent that it complied with the provisions of the City Plan, such a use could be carried out pursuant to the City Plan a self-assessable development notwithstanding any conflict with the conditions of the approval.

It is common ground between the parties in this application that the deletion of the relevant part of the condition has no legal utility in the sense that, to the extent that broader rights are conferred by the City Plan, the applicant is not deprived of exercising those rights in accordance with their terms notwithstanding the existence of the condition on the earlier development approval.  The desire to delete the condition really comes down to more practical matters of avoiding confusion and the like.

The application to delete the condition is opposed by the Council for three reasons.  Firstly, that the condition was imposed with the agreement of the applicant for sound reasons at the time.  Secondly, that there is no legal utility in amending the condition.  Thirdly, that if the condition were now to be deleted, it might be thought to authorise the use of the premises for a real estate agency to a greater extent than is permissible without approval under City Plan.

In that respect, it is common ground between the parties that the approval is one which has not lapsed and is still current.  The approval is one which was acted upon within the relevant period by the establishment of a business premises for the purposes of a heritage consultancy in the rear of the building.  The Council's concern is that, by deleting the condition, the approval might be sought to be relied upon, whether by this applicant or by a successor in title, as authorising a real estate agents office, notwithstanding that it might not meet the conditions for such development to be self-assessable under the City Plan.

The applicant contends that it would not do so. Counsel for the applicant contends that whilst the development approval has not lapsed, that it would not authorise a real estate agents office. I was taken to various provisions of the Integrated Planning Act by counsel in this regard. Counsel were unable to direct me to any decision on point. Of course, even if I were to determine the correctness or otherwise of those propositions in the course of these proceedings, that would not necessarily raise an estoppel against any successor in title.

Given the potential for argument as to whether or not an amendment of the condition could be used in that way, set against the absence of legal utility in the change, in the sense that the applicant can, notwithstanding the existing condition, exercise whatever rights she might have pursuant to City Plan, I am satisfied that I should exercise my discretion against changing the approval so as to delete the relevant sub condition.

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