Office Park Developments Lennon Pty Ltd v Brisbane City Council

[2006] QPEC 077

PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 1434 of 2006
OFFICE PARK DEVELOPMENTS
LENNON PTY LTD Applicant
and
BRISBANE CITY COUNCIL Respondent
BRISBANE
..DATE 26/05/2006
ORDER
CATCHWORDS: Integrated Planning Act 1997 s 3.5.33 - application to change a development approval constituted by a Court order - order made in an adverse submitter appeal in which a previous owner of the development site was co- respondent - whether the appellant or the other adverse submitter should be served - changes proposed involved no assessable development.

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HIS HONOUR: The Court is asked to act under section 3.5.33 of

The Integrated Planning Act 1997 to change a development
approval which is constituted by orders of his Honour Judge
Wilson SC made on the 16th of July, 2004. Those are exhibit
1.

They were made in Appeal BD 2491 of 2001 in which the parties
other than the Council were the developer, Cannon Hill
Developments Pty Ltd and Metroplex Management Pty Ltd, a
commercial rival - which had a similar development diagonally

opposite the intersection of Creek Road and Lytton Road. The 20
site forms one of the corners.
Queensland Newspapers, which occupies another one of the
corners, the fourth being occupied by strip commercial
development, made a submission raising reverse amenity 30
concerns referrable to the impact its activities may have on a
motel proposed to form part of the development. On the 16th
of July, 2004 the motel aspect was deleted from the
application.
40
There was before his Honour an adverse submitters appeal by
Metroplex Management Pty Ltd.
...
50

HIS HONOUR: The exchange just had with Mr Skoien and Mr Chadwick relates to the obligation of the Court "to the extent relevant" under section 3.5.33 subsection (7)(b) to have regard to submissions that were made. Those are conveniently

exhibited to Mr Brown's affidavit. They contain unsurprising
town planning-type arguments - which it might be acknowledged
have carried the day in the sense that the motel component was
deleted.

The section says nothing about serving third parties who might
be interested, even ones who were active parties in a
proceeding before the Court which resulted in the relevant
development approval. It seems to me the Court would be

expected in some circumstances to decline to consider a 20
request under the section until identified persons with an
obvious interest had been served. The instance which springs
to mind would be some minor relocation of proposed buildings
which had the effect of impeding views of people off the site.
30
That observation is theoretically pertinent here but of less
concern than it would be in a residential area. Exhibits 2A
and 2B are the approved plan and the revised plan which the
applicant, being the new owner of the site, seeks to have
approved today. 40
The original proposal incorporated three buildings, the ends
of which generally speaking were straight lines, the long
walls of which were curved. Building 1 is to be split into
two. All of the walls are now proposed to be straight, 50
although there is a good deal of articulation evident in
respect of the "two" which were mentioned. The changes appear
to involve construction closer to the boundary, especially for
what was originally called Building 3 against both the "side"

and "rear" boundaries, exactly the sort of thing which might
be of concern from the point of view of sight lines being
interfered with.

From the material before the Court, and general knowledge of 10
the location, I do not think that is a concern here or that
there is any cause to require Metroplex or Queensland
Newspapers to be served with this application.
The changes made will reduce site coverage. There is a 20
reduction in the number of storeys, although no reduction in
building height; there will be no increase. There has been a
redesign of the roads within the development and very slight
relocation of one, if not both of the exits. Both exits will
now be perpendicular to the road. The Court may act under the 30
section invoked only if "no assessable development would arise
from a change." In the circumstances that condition is
satisfied.
As no other difficulties appear, there will be an order in 40
terms of the initialled draft supplied by Mr Skoien.
...

----- 50

Office Park Developments Lennon Pty Ltd applied to the Planning and Environment Court to amend a development approval that had been previously granted to Cannon Hill Developments Pty Ltd, with the Brisbane City Council as the respondent. The application sought to modify the approved development plan, which originally included a motel, to a revised plan that eliminated the motel and adjusted the design of the buildings and roads within the site. The Brisbane City Council did not oppose the application, but the Court had to determine whether it was necessary to serve other parties who had previously submitted objections to the development approval.

The Court considered whether it was necessary to serve the other adverse submitters, Metroplex Management Pty Ltd and Queensland Newspapers, with the application for amendment. The Court noted that the Integrated Planning Act 1997 did not mandate serving third parties who might be interested in a development approval. However, the Court acknowledged that in certain circumstances, such as when changes to a development might affect the views or amenities of nearby properties, it might be prudent to serve interested parties. In this case, the Court found that the proposed changes, which included straighter walls, reduced site coverage, and slight relocation of exits, did not raise concerns about interfering with sight lines or other nearby amenities. Consequently, the Court concluded that there was no necessity to serve the previous adverse submitters.

The Court exercised its discretion under section 3.5.33 of the Integrated Planning Act 1997 to approve the changes proposed by Office Park Developments Lennon Pty Ltd. The Court determined that the modifications did not constitute assessable development and thus satisfied the statutory condition for approving the application. The Court issued an order in line with the draft terms submitted by the applicant's representative.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

opposite the intersection of Creek Road and Lytton Road. The	20
site forms one of the corners.
Queensland Newspapers, which occupies another one of the
corners, the fourth being occupied by strip commercial
development, made a submission raising reverse amenity	30
concerns referrable to the impact its activities may have on a motel proposed to form part of the development. On the 16th of July, 2004 the motel aspect was deleted from the application.
40
There was before his Honour an adverse submitters appeal by Metroplex Management Pty Ltd.
...
50
HIS HONOUR: The exchange just had with Mr Skoien and Mr Chadwick relates to the obligation of the Court "to the extent relevant" under section 3.5.33 subsection (7)(b) to have regard to submissions that were made. Those are conveniently

expected in some circumstances to decline to consider a	20
request under the section until identified persons with an obvious interest had been served. The instance which springs to mind would be some minor relocation of proposed buildings which had the effect of impeding views of people off the site.
30
That observation is theoretically pertinent here but of less
concern than it would be in a residential area. Exhibits 2A
and 2B are the approved plan and the revised plan which the
applicant, being the new owner of the site, seeks to have
approved today.	40
The original proposal incorporated three buildings, the ends
of which generally speaking were straight lines, the long
walls of which were curved. Building 1 is to be split into
two. All of the walls are now proposed to be straight,	50
although there is a good deal of articulation evident in respect of the "two" which were mentioned. The changes appear to involve construction closer to the boundary, especially for what was originally called Building 3 against both the "side"

From the material before the Court, and general knowledge of	10
the location, I do not think that is a concern here or that there is any cause to require Metroplex or Queensland Newspapers to be served with this application.
The changes made will reduce site coverage. There is a	20
reduction in the number of storeys, although no reduction in
building height; there will be no increase. There has been a
redesign of the roads within the development and very slight
relocation of one, if not both of the exits. Both exits will
now be perpendicular to the road. The Court may act under the	30
section invoked only if "no assessable development would arise from a change." In the circumstances that condition is satisfied.
As no other difficulties appear, there will be an order in	40
terms of the initialled draft supplied by Mr Skoien.
...