Wolski v. Brisbane City Council

[2009] QPEC 48

[2009] QPEC 48

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 3523 of 2004

ROBIN WOLSKI	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 15/05/2009

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 4.1.52(2)(b) - whether "minor change" where a developer appellant sought to change an application to relocate his house in a demolition control precinct to one of the two parcels whose boundary it straddled and to remove a verandah (enclosed after its original construction)

HIS HONOUR:  The issue for the Court this morning is whether the appellant, Mr Wolski, is entitled to pursue his appeal on the basis of a changed development proposal from the one which he lodged with the Council on the 31st of December 2003.

He began his appeal on the 1st of October 2004 when the Council refused the approval sought in respect of his plans to establish a long term residence for his family on a 32-perch parcel of land in Annie Street, Torwood.  There is an old Queenslander erected on the site which inconveniently straddles the boundary separating two separate parcels.  Those appear to be designated in different ways.  In the plans made available to the Council the western block of 416 square metres was described as Lot 20, the eastern block, also of 416 square metres, was described as Lot 18.  The plans depicting the revised proposal date from October 2008.  They describe the lots as Lot 118 for the western lot, Lot 117 for the eastern lot, each of 404 square metres.

The eastern part of the existing dwelling, which is a 19th century one, it seems, was originally open veranda but for a long time has been enclosed.  The building no longer has its original appearance but those with sufficient imagination would be able to visualise its original appearance and perhaps take pleasure from that exercise.

The original proposal involved removal of that veranda and the relocation of the remainder of the house a metre or so to the west so that it would be wholly on what I shall call Lot 118.  The house was to be raised and built in underneath, also to lose an extension at the rear which was to be replaced by a larger extension of two storeys.

Mr Wolski has erected a shed at the rear of Lot 117.  The proposal made to the Council involved the erection of a pergola in front of it.

The property is in a demolition control precinct or covered by a demolition control precinct overlay.  It's in the character residential area.  There were three triggers for notifiable code assessment, the first relating to the demolition control precinct aspect, the next relating to the site being a lot less than 450 square metres, the third, because the house didn't comply with Acceptable Solutions in the house code, apropos height.

Mr Wolski's concern is to develop a flood-free property which, on advice available to him, requires raising of the ground floor level to such an extent that the roof, if the existing roof line is to be preserved, would exceed what's contemplated in Acceptable Solutions.  There were five letters making representations received by the Council pursuant to the notification that occurred, all opposed to the proposal, essentially on the basis that it was considered too big, would block sight lines and light et cetera.

The new proposal involves Mr Wolski abandoning any thought of having the eastern block available as an asset that might be turned to account in the future, perhaps at the point of his retirement.  From some planning points of view such as those enshrined in the South-East Queensland Regional Plan, the making available of an additional residential allotment in Torwood would be welcomed.

The existing house, under the revised proposal, would remain where it is but be added to and much more extensively than originally proposed.  A large two-storey extension above a large garage on a third level would replace the pergola.  Mr Wolski has explained his thinking in considerable detail. Given the obstacles that appeared to be in the way of his original plans for his property, he is determined instead to look to his and his family's security by erecting a larger property on a larger site with features he mentions such as sufficient height in parts of the building to enable observation of and enjoyment of events such as fireworks displays.

The change would involve a difference in the level of assessment in that the small lot aspect would disappear.  The other two aspects remain.

Mr Wolski's approach is that given that all that he is doing throughout the saga is establishing a family home to suit his family's requirements on the land it is unrealistic to characterise the change as other than minor. He says there is nothing unusual about his proposal, that to change the scale and location of the building would not, in the circumstances, be construed as anything other than minor change for the purposes of section 4.1.52(2)(b) of the Integrated Planning Act 1997 which provides the test the Court has to apply.

Mr Wolski submits, and with reason, that the schedule 10 definition of minor change causes him no difficulties. It's established, however, that that definition doesn't provide the test for section 4.1.52(2)(b) which refers to the ordinary understanding of minor change. See, for example, Papas v Brisbane City Council [2003] QPELR 446. The Schedule 10 definition, in referring to a development approval, refers to a development approval which already exists rather than one which is simply at a stage of being applied for. The definition has useful work to do in aid of other IPA provisions such as 3.5.24. As has been observed on many occasions the Schedule 10 definition may provide useful guidance to a court determining a question under section 4.1.52(2)(b); however that a change is a minor change for the purposes of that definition doesn't make it minor change for the purposes of section 4.1.52.

That the definition may be satisfied is of some assistance to Mr Wolski today.  It might be noted that there's no formal application from him before the Court to change his development proposal, however on reviews it's become clear that there's an issue about that which it's convenient for the Court to work out now.

It is occasionally said that a change in the level of assessment, particularly when it's made more onerous from the developer's point of view, may be an indication that a change is not minor, that in this instance things are made marginally easier for Mr Wolski is another point in his favour.

Notwithstanding the passion with which he's advanced his views that he is being confronted with unfair and inappropriate obstacles in the way of his efforts to satisfy his understandable attempts to provide a home for his family, and indeed from his point of view that what he proposes is more in keeping with the character of the locality than alterations to other houses in the street, the Court is not able to proceed on the basis of arguments of this kind which focus on what might be called social justice or equity issues and the expectations of ordinary citizen-landholders.  The Court is constrained to apply the planning laws.

I agree with the Council's approach that the changes that are made or proposed cannot be regarded as minor changes.  The appearance of what's proposed now would be very different from what was proposed in December 2003.  There will be a large single dwelling extending across an 808 square metre lot rather than a narrow slightly smaller one confined to one lot.

I've observed that two triggers for notification remain.  Mr Wolski suggests that he could remove one of those, the height one, by some tinkering with the designs, but that hasn't yet occurred and in any event, even considering it as having occurred, my view would, unfortunately for him, be the same: that the new proposal, while I'm strongly inclined to think it much preferable to the original one, represents much more than "minor change" from it.

I decline to make any order that the appeal can proceed on the basis of the new plans which are exhibited to Ms Hamill's affidavit.

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