Yu & Leung v Brisbane City Council & Anor

[2005] QPEC 78

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Yu and Leung v Brisbane City Council & Anor [2005] QPEC 078

PARTIES:

ERIC HON YING YU AND
CECELIA MAN YEE LEUNG
(AS TRUSTEES FOR THE SHEPHERD FAMILY TRUST)

Appellants

v

BRISBANE CITY COUNCIL

Respondent

and

DAVID AND PETRA WILLIAMS

Co-respondents

FILE NO/S:

BD 1517/2004

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 July 2005

JUDGE:

Rackemann DCJ

ORDER:

Declared that:

i)          the development application is an application for a development permit for a material change of premises for the purposes of a House under the planning scheme for the City of Brisbane;

ii)         the development application is a code assessable development application under the Act;

iii)        Mr & Mrs Williams do not have a right or entitlement to be joined as co-respondents in this proceeding

CATCHWORDS:

Declaratory relief – entitlement to be co-respondents – characterisation of use – described as “extension to office (caretakers residence)”, “caretakers flat”, “house”, “multi-unit dwelling”, “commercial character building activities”, “home business”, “mixed use” – whether application for new dwelling included intended future office use of existing building

Integrated Planning Act 1997 (Qld)

Cases cited:

Baht v Brisbane City Council [2003] QPELR 109

Brisbane City Council v Cunningham (2001) 115 LGERA 326

King v Lewis (1995) 88 LGERA 183

Livingstone Shire Council v Brian Hooper and M3

Architecture and Others (2004) QPLR 308

COUNSEL:

Mr A Skoien for the appellants

Mr J B Job for the respondent

Mr P Smith for the co-respondents

SOLICITORS:

Redmond Van De Graaff Solicitors for the appellants

Brisbane City Legal Practice for the respondent

Plastiras Meredith Mohr Lawyers for the co-respondents

Introduction

1. By notice of appeal filed on 28 April 2004, the appellants appealed against the respondent’s refusal of an application for a development permit for a material change of use, in respect of property situated at 49 Laura Street, Highgate Hill. The application had been treated one as a requiring impact assessment. The co-respondents had made a submission.

1. The appellants have resolved their differences with the respondent.  But for the position of the co-respondents, those parties would be in a position to consent to orders allowing the appeal. The subject application has been brought by the appellants for declaratory relief, to the effect that the co-respondents have no entitlement to be co-respondents because:

(a)        the material change of use, the subject of the application, properly characterised, is one which required only code assessment and;

(b)        the co-respondents did not comply with the relevant requirements in electing to become parties to the appeal.

The Election to be Co-respondents

1. The notice of appeal was served, by ordinary post, on 30 April 2004.  The affidavit of Mrs Williams deposes that, to her recollection, it was not received until the morning of 17 May 2004.  On 24 May 2004 the submitters filed a form by which they intended to become parties to the appeal.  They did not serve a copy of that document on the other parties.…