WAW Developments Pty Ltd v Brisbane City Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

WAW Developments Pty Ltd v Brisbane City Council [2015] QPEC 38

PARTIES:

WAW DEVELOPMENTS PTY LTD
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO.:

3586 of 2009

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 & 4 November 2014 and 20 & 21 April 2015

JUDGE:

Rackemann DCJ

ORDER:

The appeal will be allowed and the development application approved, but on the basis of the alternative proposal.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICANT APPEAL – Regularisation of unlawful outdoor dining area into footpath – where appellant put forward a revised proposal and the council put forward an alternative proposal – urban designs & visual amenity – appropriate width and length of structure

COUNSEL:

D Favell for the appellant
T Trotter for the respondent

SOLICITORS:

Colwell Wright Solicitors for the appellant
Brisbane City Legal Practice for the respondent

Introduction   

1. This appeal is against the respondent’s refusal of an application for a development permit for a material change of use for a restaurant. The development permit is sought in order to regularise the unlawful extension of an existing restaurant at the ground level of a building.  That building sits on a triangular shaped parcel of land at the corner of Commercial Road, Wyandra Street and Masters Street at Newstead. The extension has been constructed in the footpath area of Wyandra Street.  Because this part of Wyandra Street is sloping, the extension has been facilitated by the construction of a steel and concrete deck above the footpath adjacent to the restaurant, to which it gives direct access.

1. The structure, which rises to approximately 2.7m in height between the top of the balustrade and the bitumen footpath at its northern end, consists of:

(a)        a ramp starting near Commercial Road, which joins onto the structure;

(b)        the surface of the structure which provides an area for tables and chairs; and

(c)        approximately ten steps at the northern end.

1. A second access point from the building to the structure has been opened at a point near the stairs at the structure’s northern end. Consequently, what is sought as a restaurant extension also currently doubles as an access to another part of the building. When the matter first came on for hearing that access was to an office. At the time of the resumed hearing, that area was in the throes of being fitted out for a second restaurant. The appellant however, did not seek to amend its application, which is on the basis that the extension is for the first restaurant only.

1. Because the application is for land within the footpath, it was required to be supported by a State Resource Entitlement. That was initially a matter of controversy.  The Court of Appeal ultimately found that a letter provided by the Department of Environment and Resource Management was sufficient.[1]

[1] See WAW Developments Pty Ltd v Brisbane City Council [2011] QCA 47.

Regularising an Unlawful Use

1. That the structure…