Brisbane City Council v Masters [1998] QCA 35

N THE COURT OF APPEAL [1998] QCA 035 SUPREME COURT OF QUEENSLAND Appeal No. 7294 of 1997 Brisbane [B.C.C. v. Masters] BETWEEN: BRISBANE CITY COUNCIL (Respondent) Appellant AND: PETER WARWICK MASTERS (Appellant) Respondent Fitzgerald P McPherson JA Byrne J Judgment delivered 6 March 1998 Judgment of the Court APPEAL DISMISSED WITH COSTS TO BE TAXED. CATCHWORDS: ENVIRONMENTAL LAW - town planning - filling of land - flooding - whether irrelevant consideration that applicant entitled to build houses without filling - Local Government (Planning and Environment) Act 1992, s. 4.13(5A) - Planning Scheme for City of Brisbane, sub-s. 24.2.5 - Strategic Plan of City of Brisbane Counsel: Mr J. Haydon for the appellant Mr A. Heyworth-Smith for the respondent Solicitors: Brisbane City Legal Practice for the appellant Alex Mackay for the respondent -- 1 of 7 -- Hearing Date: 17February1998 -- 2 of 7 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 7294 of 1997 Brisbane Before Fitzgerald P McPherson JA Byrne J [B.C.C. v. Masters] BETWEEN: BRISBANE CITY COUNCIL (Respondent) Appellant AND: PETER WARWICK MASTERS (Appellant) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 6 March 1998 This is an appeal by the Brisbane City Council against an order made in the Planning and Environment Court on 7 July 1997. That Court allowed an appeal by the respondent against the Council’s decision refusing his application for consent to place fill on land which he owns, and set the conditions on which the land could be filled. In its appeal to this Court, the Council contended that the Planning and Environment Court misconstrued the Planning Scheme for the City of Brisbane, including the Strategic Plan, and that this misconstruction was an error of law. The respondent owns 24,606 square metres of vacant land, which was subdivided into 58 allotments in 1885. All the land is situated in the Non-Urban zone, except for one lot which is in the Residential -- 3 of 7 -- 4 ‘A’ zone. The site, which is flood-prone, is lower than adjoining residential properties along its east, south and west boundaries. The northern boundary abuts Kalinga Park, on the other side of which, running from west to east, is Kedron Brook. The site is traversed by an open cut drain which flows in a generally south-west to north-east direction. The part of Lewis Street which forms the northern border of the site and those parts of Milman and Kemble Streets which lie within the site have not been constructed. Some parts of those streets are impassable at all times by wheeled vehicles, and other parts are trafficable, even in dry conditions, only by four-wheel drive vehicles. The respondent’s application for consent to place fill on the site relates to a roughly triangular section in the south-west corner of the site. The fill would raise the ground level to RL4.0 m. AHD. Part of Milman Street lies within the triangular section, but the respondent did not apply to place fill on any part of Milman Street, which would remain at its natural level of about RL3.0 m. AHD, or about one metre lower than the filled area of the respondent’s land on either side of the street. The respondent proposes residential development - about 12 houses - on the part of the site to which the application for consent to place fill relates. Even with the fill, the proposed residential development will not be satisfactory according to modern standards. The houses will have to be erected on high stilts to reach the minimum flood-free floor level for habitable rooms on the subject land of RL8.3m. AHD, and will be unsightly. Further, even if filled, the land will be flooded every two to five years, and, in those circumstances, the houses will not have flood-free access, and property, including motor vehicles, on the land will be affected by the flooding. However, residential development is a permissible use of the land, according to its current zoning, and the disadvantages of residential development will be decreased if the land is filled as proposed by the respondent. Filling and its consequences would not -- 4 of 7 -- 5 have any significant adverse effect on other land nearby. While the Council’s opposition to residential development on the land is understandable, it is very difficult to identify the legal argument which the Council relied on. Reference was made to sub-s. 4.13(5A) of the Local Government (Planning and Environment) Act 1990, sub-s. 24.2.5 of the Planning Scheme for the City of Brisbane, especially paragraphs (j) and (k), and Aim 5 and part of sub-s. 2.6.4 and Aim 7 and part of sub-s. 2.8.1 of the Brisbane Strategic Plan. There seems to be no purpose in setting out these provisions which, as is common, express broad concepts in general terms. If town planning consent was needed to build dwellings on the land, the provisions referred to by the Council might well require that consent be refused. However, that was not, and is not, the issue. The Council’s submissions fluctuated in the course of argument, but overall were based upon the legal significance of the respondent’s proposal to build houses on the land and his right to do so without the Council’s consent. At times the argument appeared to be that it was impermissible to have regard to the respondent’s proposed use of the land, while at other times it was asserted that that was a matter of considerable importance because of the unsatisfactory nature of any housing development on the land. Ultimately, the point seemed to be that, in considering the respondent’s proposed use of the land for housing after it was filled, it was impermissible to have regard to the respondent’s right to use the land for that purpose without placing fill there. It was effectively conceded that, unless the respondent’s right to build houses on the land without filling it was an erroneous consideration, the appeal must fail. Although not enunciated with total clarity, the reason asserted for the irrelevance of the respondent’s right to build houses without filling seemed to be that, even with filling, a housing development would be -- 5 of 7 -- 6 unsatisfactory. -- 6 of 7 -- There is little which can be said in response to the Council’s argument beyond that it failed to demonstrate that the parts of the Planning Scheme for the City of Brisbane, including the Strategic Plan, which it referred to had the legal consequences for which it contended. In such circumstances, it is consistent with the appellant’s approach to dismiss the appeal with costs to be taxed. -- 7 of 7 --