WAW Developments Pty Ltd v Brisbane City Council - [2010] QPEC 69

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

WAW Developments Pty Ltd v Brisbane City Council [2010] QPEC 69

PARTIES:

WAW DEVELOPMENTS PTY LTD ACN 084 429 827

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

No. 3586 of 2009

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2010

JUDGE:

Everson DCJ

ORDER:

That the appeal be struck out.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – whether properly made application pursuant to s 3.2.1 of Integrated Planning Act 1998 – meaning of “interfering with a State resource” – s 12 Integrated Planning Regulation 1998 – meaning of “streetscape”.

COUNSEL:

Hughes SC and DM Favell for the appellant

Trotter for the respondent

SOLICITORS:

Colwell Wright for the appellant

Brisbane City Legal Practice for the respondent

This is an application for a declaration pursuant to s 4.1.21 of the Integrated Planning Act 1997 (“IPA”) that the development application the subject of this appeal (“the development application”) was not a properly made application pursuant to s 3.2.1 of IPA. The respondent also seeks an order dismissing the appeal.

The respondent asserts that the development application was not a properly made application because the development involves a State resource prescribed under a regulation and it was not accompanied by evidence that the chief executive of the department administering the resource is satisfied either that the development is consistent with an allocation of, or entitlement to, the resource, or that the development application may proceed in the absence of an allocation of, or entitlement to, the resource.

The development application seeks to regularise a structure in the order of 18 metres long, 2.3 m wide and up to 2.8 m high at the level of the balustrade, which has been constructed over the footpath adjacent to the appellant’s restaurant premises situated at Wyandra Street, Newstead (“the structure”). The footpath slopes markedly at this location and the structure has a ramp on the uphill side and 11 steps on the downhill side.

In the development application the appellant submitted that the proposal was:-

“to extend the existing approved Restaurant Use … over the footway immediately adjoining the existing activity by way of construction of a steel and concrete deck (the structure) and doorway leading to the structure, for use by the Restaurant for Outdoor Dining …”

Relevantly s 3.2.1 of IPA states:-

“(5)To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by one or more of the following prescribed under the regulation for the development –
(a)evidence of an allocation of, or entitlement to, the resource;
(b)evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or entitlement to, the resource;
(c)evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or entitlement to, the resource.”

Section…

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: [2010] QPEC 69
Decision Date: 6 August 2010

CaseChat Overview and Summary

The case of WAW Developments Pty Ltd v Brisbane City Council concerned a dispute over the validity of an application made by the appellant, WAW Developments, to the Brisbane City Council. The application sought approval for a development project that involved alterations to the streetscape. The council rejected the application, asserting that it was not properly made under section 3.2.1 of the Integrated Planning Act 1998. The appellant sought judicial review of the council's decision in the Queensland Land Court, which was appealed to the Queensland Court of Appeal.

The central legal issue before the court was whether the application made by WAW Developments was properly constituted under section 3.2.1 of the Integrated Planning Act 1998. This required the court to consider the meaning of "interfering with a State resource" and "streetscape" as defined in section 12 of the Integrated Planning Regulation 1998. The court had to determine whether the application sufficiently identified the nature of the proposed development and its impact on the streetscape, thereby meeting the statutory requirements.

The Queensland Court of Appeal found that the application did not meet the statutory requirements. The court held that the application was deficient in that it failed to adequately describe the proposed development and its impact on the streetscape. The court emphasised that the application needed to provide sufficient detail to allow the council to assess whether the development would interfere with a State resource. The appellant's failure to meet these requirements rendered the application improperly made. Consequently, the appeal was dismissed, and the decision of the lower court to strike out the appeal was upheld.

No additional orders were made beyond those already noted in the order section. The appeal was struck out, and the decision of the Queensland Land Court was affirmed.

Orders

Orders of the court

That the appeal be struck out.

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:	WAW Developments Pty Ltd v Brisbane City Council [2010] QPEC 69
PARTIES:	WAW DEVELOPMENTS PTY LTD ACN 084 429 827 (Appellant) v BRISBANE CITY COUNCIL (Respondent)
FILE NO/S:	No. 3586 of 2009
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	6 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2010
JUDGE:	Everson DCJ
ORDER:	That the appeal be struck out.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICATION – whether properly made application pursuant to s 3.2.1 of Integrated Planning Act 1998 – meaning of “interfering with a State resource” – s 12 Integrated Planning Regulation 1998 – meaning of “streetscape”.
COUNSEL:	Hughes SC and DM Favell for the appellant Trotter for the respondent
SOLICITORS:	Colwell Wright for the appellant Brisbane City Legal Practice for the respondent