Newman v Brisbane City Council (No 2)

[2012] QPEC 19

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2324 of 2010

PETER NEWMAN AND OTHERS	Appellants
and
BRISBANE CITY COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 09/03/2012

..DAY 1

ORDER

CATCHWORDS

Unsuccessful submitter appeal - condition limiting approval for "material change of use development permit - office, education purposes" to "office (administration of professional organisations) and education purposes (post-graduate training in surgical theory and professional practices)" considered to alleviate submitter concerns other uses (such as a school) would be let in.

HIS HONOUR: I've reached a clear view to initial the order that's been handed up, which I'll do and formally make an order in those terms resolving the appeal.

I have been, today, and also to an extent before, prepared to go through Mr Steendyke's suggestions which I'm willing to say all have merit but that's not the question where, as here, the developer's got a proposal that the evidence the court accepts shows is acceptable. That's the issue on which the court should pronounce.

The concern that Mr Steendyke and others have that we will never see on this site, or in the proposed building, a use by the co-respondent of office (administration functions of professional organisations) and education purposes (post-graduate training, medical theory and professional practices) has arisen again today. Ms Tendyke has offered to tender a document which conveys the unsurprising information that
St Joseph's College, Gregory Terrace which is across the road from the site has formed a committee to be charged with looking into real estate acquisitions in its area to permit expansion of the school.

I developed a concern myself on perusing the Brisbane City Council approval package which protracted negotiations among the parties have led to, that the cover sheet refers to a development approval for (inter alia) "material change of use development permit - office, education purposes". On the face of it, that might authorise a use for such broadly expressed functions by the school which I'm fairly confident would leap at the chance to acquire the site.

Mr Shannon draws my attention to condition 7 in the package which provides for "Limitation of use - The use of the premises as approved by this development permit shall be and remain limited to an office (administration functions of professional organisations) and education purposes (post-graduate training in medical theory and professional practices)". That is consistent with the limitation that presently governs the planning arrangements for Special Area 17 which the site constitutes, with, indeed, some useful clarification.

In my view, the condition is effective to limit the uses that may be conducted on the site pursuant to the approval constituted now by the court's order. Just as a week ago I expressed the view that no justification had been shown for what I regarded as an unprecedented requirement that the approval fail unless the co-respondent began carrying out the uses it says it proposes there within a limited time. I'm not prepared to accede to Mr Steendyke's suggestion now that stage 2 should not be embarked upon until the co-respondent has by commencing or recommencing its uses in stage 1 acted on the approval.

Those are the court's reasons for making an order today in terms of the initialled draft which finally resolves the appeal. The reasons for refusal of the appeal are at [2011] QPEC 87.

‑‑‑‑‑

In the case of Newman v Brisbane City Council (No 2), the appellants, including Peter Newman, sought to appeal a decision of the Brisbane City Council approving a development permit. The permit allowed for a "material change of use" to include office and education purposes. The respondents, Brisbane City Council and others, defended the approval. The matter was heard in the Planning and Environment Court of Queensland, with Judge Robin QCP & E presiding over the appeal.

The legal issues that arose in the case centred on whether the condition limiting the use of the premises to offices and education purposes, specifically post-graduate training in surgical theory and professional practices, was sufficient to alleviate concerns that the site might be used for other purposes, such as a school. The court had to consider whether the condition effectively limited the permissible uses of the site and whether there was any merit in the appellants' concerns regarding the potential for other uses.

Judge Robin QCP & E examined the condition imposed on the development permit, noting that it limited the use of the premises to offices and education purposes, which aligned with the current planning arrangements for the area. The judge concluded that the condition was effective in limiting the uses on the site and that it was consistent with the limitations already in place. The judge also dismissed the suggestion that stage 2 of the development should not proceed until the co-respondent had commenced the uses proposed for stage 1. The court found that the evidence presented by the respondents was acceptable, and the approval was consistent with the planning arrangements for the area.

The court dismissed the appeal, with the reasons for the refusal outlined in the earlier decision. The court's order was made in accordance with the initialled draft, resolving the appeal.

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