Ferreyra & Ors v Brisbane City Council & Brian E Fitzgibbons Family Trust [2016] QPEC 7

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Ferreyra & others v Brisbane City Council & Brian E Fitzgibbons Family Trust [2016] QPEC 7 PARTIES: FERREYRA & others (applicant) v BRISBANE CITY COUNCIL (respondent) and BRIAN E FITZGIBBONS FAMILY TRUST (second respondent) FILE NO/S: 1149 of 2015 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 10 February 2016 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 10 February 2016 JUDGE: Rackemann DCJ ORDER: The application to vacate the trial dates is refused CATCHWORDS: PLANNING AND ENVIRONMENT – procedure – Application to vacate trial dates in a proceeding seeking declarations that a permissible change decision was invalid – where second respondent had an appeal pending against the council’s decision on a separate development application seeking another approval for that which was the subject of the permissible change decision – where balance lay in favour of refusing the application to vacate trial dates COUNSEL: D O’Brien (solicitor) for the applicant J A Langham for the respondent M A Williamson for the second respondent SOLICITORS: Mills Oakley Lawyers for the applicant Brisbane City Legal Practice for the respondent -- 1 of 4 -- 2 DibbsBarker for the second respondent -- 2 of 4 -- 3 [1] This is an application to vacate trial dates which have been set for this matter for later this month. The proceeding is for declarations and consequential orders. The proceeding is brought by owners of the units in a building adjoining a hotel. The proceeding challenges the lawfulness of a decision by the council, made in 2014, to grant, as a permissible change to an approval, the authority to build a tall acoustic wall very near the adjoining development. The subject proceeding was commenced on the 15th of April last year. [2] Even if the applicants are successful in obtaining their declarations, there is always available to the owner of the premises the option to seek to obtain a development approval to authorise the acoustic wall, rather than relying upon the permissible change decision. If an approval were obtained to have the wall in its current position then that would obviously have an effect on whether the court would be prepared to exercise its discretion, particularly in relation to consequential orders. It would not however, necessarily obviate the utility of making declarations, because it may be important to know whether the continued existence of the wall is governed by the permissible change approval as opposed to being governed by rights granted in a separate development approval and subject to conditions attaching to that approval. But it may at least be relevant in relation to consequential orders so that, for example, the court would not order the wall to be demolished if the owner had subsequently obtained an approval for it by way of a separate and lawful development approval. [3] Understandably, the owner of the hotel made a development application in September of last year, in an endeavour to obtain a fresh development approval such that it would not need to rely upon the permissible change decision in order to authorise the wall. At that stage the ability to get such approval was no more than a possibility and it was not suggested, at that stage, that the prospects of obtaining approval for the wall should delay the applicants in obtaining a hearing of the subject proceeding. [4] What has changed, of recent times, is that the council has made a decision on the development application. The decision purports to grant an approval but does so on conditions which will require any acoustic wall to be built in a location which is further removed from the adjoining building within which the applicants have their units. In other words, the council’s approval does not approve the wall as it exists. [5] The second respondent has not given up hope of obtaining a development approval which approves the wall in its current location. It has recently lodged an appeal against the council’s decision on the development application. It was indicated on the hearing of this application, that it would be argued that the council erred in making its decision by treating some codes in the City Plan as being applicable when they were not, but there would also be discretionary arguments. In order to look into those arguments, the parties will need to retain experts to look at a range of issues including noise and the like. Given those dimensions to the issues and given the fact that the appeal is in its infancy, it would obviously be some time before that appeal process could be concluded. [6] The position of the second respondent is that it remains in a situation where it does not have an effective development approval to authorise the wall in its current location. It is still at the stage of seeking to obtain such approval. It is perhaps a -- 3 of 4 -- 4 little more advanced than it was immediately after it made its application, but it is still a fair way off being in a position of obtaining such approval. [7] The fact that the council is prepared to grant an approval for a wall on the subject site, albeit somewhat more removed from the applicants’ building may, of course, be a matter of some relevance, but the position fundamentally is not greatly different insofar as any approval of the wall as it was purportedly approved pursuant to the permissible change application. That is, there is no approval for such a wall and the second respondents are still in the process of seeking to obtain such approval. It may well be that if the applicants are otherwise successful in persuading the court that the permissible change decision was unlawful, the court may delay in making the consequential orders, to give the second respondent an opportunity to try to get its separate and independent approval. [8] In balancing the interests of the second respondent in its endeavours to obtain certainty about what development approval it might be able to obtain before confronting this proceeding and the interests of the applicants in having a timely disposition of this proceeding, and also the interests of the court and the appropriate use of its resources, it seems to me that the balance in this case lies in favour of refusing the application to vacate the trial dates. -- 4 of 4 --