Greentree & Ors v. Brisbane City Council

[2009] QPEC 19

PLANNING & ENVIRONMENT COURT

JUDGE ROBIN QC

P & E No 2399 of 2008

STEVEN GREENTREE AND OTHERS	Appellants
and
BRISBANE CITY COUNCIL AND ANOTHER	Respondent

BRISBANE

..DATE 31/03/2009

ORDER

CATCHWORDS: Integrated Planning Act 1997 s4.1.52(2)(b) - changes to development application held minor - limited to internal road layout and some limited consequential change to relocate a fire exit and to more onerous provisions for external road works required by Council condition.

HIS HONOUR: The Court makes an order in terms of the initialled draft which in form dismisses an adverse submitter appeal but on the basis of the appeal being determined on amended plans which incorporate some changes which I am about to confirm the Court regards as minor, the changes go some way to satisfy concerns of the appellants.

Except for Mr Henderson and Ms Renyi, the appellants have already filed in the Court documents indicating their withdrawal.

Exhibit 1 consists of some communications to the Court from Mr Henderson on behalf of himself and his partner. Although they bespeak some misgivings about the co-respondent developers' proposal, it is clear that Mr Henderson and Ms Renyi are going along with the resolution that's been arrived at following mediation and discussions and negotiations. There has been no appearance today by the remaining appellants who are unable to be here.

On the 26th September last year, I made an order dealing with technical matters which are of importance relating to public notification of the proposal of the developer and notification of the appeal in appropriate quarters.

The only matter requiring consideration of the Court today is those changes to the application which is for a large development on a site at Coorparoo which includes a Heritage building. On that basis, if not others, the application which had important aspects under Section 3.1.6 of the Integrated Planning Act concerning a preliminary approval overriding the Planning Scheme required public notification. This excited the interest of the appellants.

The Court has the benefit of an affidavit of the architect, Mr Proberts, describing the changes from the plan that the Council approved which coincide with what was notified and the final plans.

Some redesign of one building in a minor way to relocate a fire exit has been necessitated by changes to the internal traffic pattern. All of those changes are internal and won't have any effect other than to make the site work more effectively. There won't be any effect outside the site or the development, nor on the Heritage building or people's ability to enjoy it.

There's also been some change in the conditions required by the Council for work to be done on an intersection adjacent to the property by provision of traffic islands and I'm told, a dedication by the co-respondent of an additional strip of land to provide a taper. For the purposes of 4.1.52(2)(b) of IPA, it's clear that those changes represent no more than minor change.

Another matter which may not represent a change to all, concerns the calculation of GFA on one plan 150m² higher, or 5100m², by reason of the inclusion of a courtyard area; on other plans the 150m² had been indicated. This is not a change at all.

Order as per initialled draft.

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CaseChat Overview and Summary

In the case of Greentree & Ors v. Brisbane City Council, the appellants challenged changes made to a development application submitted to the Brisbane City Council. The dispute was heard and determined by the Planning and Environment Court. The appellants, including Steven Greentree and others, argued that the changes to the development application were not minor and thus should have required a new notification process. The Brisbane City Council, represented as the respondent, maintained that the changes were minor and did not necessitate further public notification.

The legal issues before the court revolved around the interpretation and application of Section 4.1.52(2)(b) of the Integrated Planning Act 1997. Specifically, the court had to decide whether the changes to the development application constituted minor alterations that did not require additional public notification. The court also needed to consider the implications of these changes on the site’s internal road layout, the relocation of a fire exit, and modifications to external road works as required by the Council's conditions.

The court examined the affidavit provided by the architect, Mr. Proberts, who outlined the nature of the changes made to the development plans. The court found that the changes were limited to internal modifications, such as relocating a fire exit due to changes in the internal traffic pattern, and did not affect the external environment or the enjoyment of the heritage building. Additionally, the court noted changes to the conditions for external road works, including the provision of traffic islands and an additional strip of land for a taper, which were deemed minor. The court also clarified that a slight discrepancy in Gross Floor Area (GFA) was not a change but rather a correction in the calculation. Based on these findings, the court concluded that the modifications were indeed minor and did not require further public notification.

The court ordered that the adverse submitter appeal be dismissed, but on the condition that the appeal would be determined on the amended plans incorporating the minor changes. The court's decision effectively resolved the appellants' concerns and allowed the development application to proceed as amended. The court also acknowledged that Mr. Henderson and Ms. Renyi, two of the appellants, were in agreement with the resolution reached through mediation. The remaining appellants, who were unable to appear, were deemed to be proceeding in accordance with the resolution as well.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established