McGuckin v Brisbane City Council
[2000] QCA 8
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- Unreported Judgment
- Appeal Determined (QCA)
- McGuckin v Brisbane City Council[2000] QCA 8
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McGuckin v Brisbane City Council[2000] QCA 8
McGuckin v Brisbane City Council[2000] QCA 8
COURT OF APPEAL
PINCUS JA
McPHERSON JA
THOMAS J
Appeal No 9346 of 1999
NEVILLE McGUCKIN Applicant (Plaintiff)
v
BRISBANE CITY COUNCIL Respondent (Defendant)
and
KEVIN AND SANDRA VIZER
BRISBANE
DATE 03/02/2000
JUDGMENT
PINCUS JA: The applicant seeks leave to appeal against an order made in the Planning and Environment Court dismissing an appeal against an approval of an application for a development permit.
The applicant has helpfully and with precision identified in written submissions what are said to be two errors of law made by the primary judge. These were that the judge misinterpreted a policy relating to intrusive noise and that his Honour did not give effect to a building regulation prescribing a clearance of 1.5 metres between the building and the boundary.
The application the approval of which is challenged was one to erect stables and a feed room for horses. The applicant owns and lives in a house which adjoins the site the subject of the application and his practical concern appears to be that if the proposal goes ahead there will be horse stalls facing towards his land and close to his bedroom.
The primary judge said in effect that persons called before him to give opinion evidence were of the view that there might perhaps have been better care taken to protect the applicant's residence from nuisance created by the proximity of the horses in the proposed stables.
The judge discussed this issue and in particular his Honour discussed whether there was within the meaning of the policy called Environmental Protection (Noise) Policy section 10 "unreasonable interference from intrusive noise" to be expected from the proposed stables.
The judge held in effect that the intrusive noise would not necessarily be unreasonable interference because the area in question which is designated a "special stable area" under the town plan is one in which noise from horses, even in the early mornings, must be expected.
The argument put forward by the applicant is that the stables are too close to the residence and in particular the bedroom, the occupiers, and that this is a bad precedent. The argument in writing relies particularly upon the evidence of reading the evidence of the witness Mr Alderson.
The difficulty as it appears to me about the appellant's argument concerning the noise is that it doesn't raise any legal issue. The judge was conscious of the fact that there would be noises from the horses in close proximity to the applicant's house and at first sight some might think it surprising that the Court would permit the establishment of stables quite so near a neighbouring house, but I cannot for myself see that the attack mounted on the noise raises any question of law.
Under section 4.1.56 of the Integrated Planning Act 1997 (Qld) it is necessary that the applicant show a legal mistake or a lack of jurisdiction.
Under this heading the applicant's written argument also relied upon the evidence of Mr Alderson that the stables were too small and that a wash area and manure pit were essential requirements. Again this raises no legal question.
The second area in which the applicant says there was a legal mistake was that according to him the judge should have applied a provision of the Standard Building Regulations 1993 (Qld). In his discussion of this point the judge expressed what appears to be a provisional opinion that the Standard Building Regulations require a boundary clearance of 1.5 metres but his Honour said that section 45, that is section 45 of the Standard Building Regulation 1993, seems to provide that when a local planning instrument prescribes siting requirements these prevail over the requirements of the relevant part of the Standard Building Regulations.
Two answers have been given to this on the respondent's part. That which seems to me to be decisive is that under section 3.1.5 and other provisions of the Integrated Planning Act, provision is made for a preliminary approval and for a development permit. This is, as is common ground, a preliminary approval. It is not a development permit and section 3.1.5 says that it does not authorise the development to occur. When the development occurs it will be necessary for the person considering the propriety of the development to look at the boundary clearance requirement if that is regarded as applicable.
It has been mentioned during the course of argument that there has been no building application yet and presumably if Mr McGuckin wants to take the matter further he will raise it with the council. It seems clear from what we have been told that it is not as a practical matter too late to do that.
The result is that in my opinion of the two points raised by Mr McGuckin in his written argument, the noise point and the boundary clearance point, the first is not a legal question and the second one is based on a misapprehension of the stage of the proceedings which have been reached.
It is necessary to make two further observations. One is that Mr McGuckin who has argued the matter in a helpful and responsible way, is understandably a little bit at sea when dealing with these complex and interrelated provisions. It is very difficult indeed for the lay person or indeed for many lawyers to follow the way in which they interact and it may be that if Mr McGuckin had fully understood this aspect of the matter we would not be here today.
The second point I should make is that Mr McGuckin has relied with respect to the noise aspect of the matter upon what he says are some proposed laws relating to noise. Assuming these laws have come into existence those which Mr McGuckin relies on simply do not apply to stables. He has referred us to requirements with respect to swimming pools.
The result is as it seems to me the application for leave to appeal must be refused on the ground that no prima facie case of an error of law has been shown.
McPHERSON JA: I agree.
THOMAS JA: And I agree.
...
PINCUS JA: The orders of the Court will be that the application for leave to appeal is refused and it will be ordered that the applicant Mr McGuckin pay one half of the costs of each of the respondents.
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