Dunne v Brisbane City Council [2000] QPEC 3

DISTRICT COURT OF QUEENSLAND CITATION: PARTIES: LEN DUNNE (Appellant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: Appeal No. 135 of 2000 DIVISION: Planning and Environment Court PROCEEDING: ORIGINATING COURT: DELIVERED ON: 9 February 2000 DELIVERED AT: Brisbane HEARING DATE: JUDGE: Quirk, DCJ ORDER: CATCHWORDS: COUNSEL: SOLICITORS: [1] In this matter Mr Dunne has applied to the Court for: “a declaration under the Integrated Planning Act 1997 (s.4.1.21) to review a decision of the Brisbane City Council made on or about 20 December 1999 which approved an application for a detached house on a small lot situated at 103 Russell Terrace Indooroopilly”. [2] The Appellant went on to request the Court: “to reverse the Council’s decision if all town planning action policies have not been com plied with”. [3] The grounds of the application were set out and identified as being in the following categories: 1. Traffic engineering and safety 2. Non-compliance with minimum frontage requirements 3. Non-compliance with minimum area requirements -- 1 of 3 -- 2 4. Non-compliance with slope and cross-fall 5. Non-compliance with reasonable amenity impacts and residential expectations 6. Lack of details in relation to sewerage, storm water and other services capacity and authority. [4] The relevant application was for a detached house on a small lot in the Residential A zone. Section 7.2.5.1 of the Town Plan makes such development on allotments of area of less than 450m² or a frontage of less than 15m “permissible development” unless otherwise stated in s.7.9 of the scheme. [5] In s.7.9 are found provisions which deal with the development of a detached house on allotments of between 400 and 450m² in area with a frontage of between 10m and 15m. Section 7.9.2 makes an application for approval of such development: “Developments Subject to Public Comment” [6] Such applications are dealt with in s.24.3A the effect of which is that public advertisement of the application is required (24.3A.2(b)). However it is made clear in 24.3A.2(d) that in such a case, “The making of a submission does not confer on the person making the submission a right of appeal to the Court against the Council’s decision on the application”. [7] Such a procedure is contemplated by s.3.2.7 of the Integrated Planning Act. [8] The position is therefore that Mr Dunne (although he made a carefully assembled submission adverse to the proposal) is not entitled to have, in this Court, a re- hearing of the matter on the merits as would have been the case had he enjoyed a right of appeal against this decision. [9] The majority of his concerns go to the merits of the matters about which the Council was entitled to make a judgment which is not subject to any review by the Court. The only basis upon which Mr Dunne might be granted declaratory relief would be if he could establish that the Council’s decision to approve the application was in conflict with provisions of the Town Plan which govern the matter to the -- 2 of 3 -- 3 extent that what was approved was something that was not, as a matter of law, able to be approved. [10] As mentioned the majority of the matters raised by Mr Dunne do not fall into this category. The matter of the minimum allowable frontage of 10m (s.20.2.1.5) may have been a problem but for the provision of sub-section (c)(iii)(B) which allows the width of a frontage allocated to the truncation of an adjoining access strip to be deemed part of the frontage. In this matter this has had the effect of taking the frontage of the proposed new allotment to 11.5m which is (as is the allotment size of 400m²) within the Town Plan’s requirements. [11] Other matters referred to by Mr Dunne were of general rather than specific application to this proposal (eg amenity considerations and those relating to overall drainage and sewerage arrangements in the area). These involve the making of merit judgments by the deciding authority. Some reference was made to considerations identified in relevant planning policies but, as appeared to be recognised by Mr Dunne’s consultants, these requirements are not inflexible. [12] In all of the circumstances I am not satisfied that this is a case where declaratory relief is called for and the application must be refused. -- 3 of 3 --