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Carmelo Ginardi v Brisbane City Council QPEC 24
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Carmelo Ginardi & Anor v Brisbane City Council  QPEC 24
CARMELO GINARDI AND
JANE ELIZABETH GINARDI
BRISBANE CITY COUNCIL
Planning and Environment
Planning and Environment Court, Brisbane
14 July 2022, ex tempore
14 July 2022
PLANNING AND ENVIRONMENT – APPLICATION – application under s 72(2)(b) of the Planning Act (Qld) to allow development to start before the appeal ends
Planning Act 2016 (Qld)
Harburg Nominees Pty Ltd v Brisbane City Council  QPELR 943.
H Stephanos for the Applicants
J Ware for the Respondent
Holding Redlich for the Applicants
City Legal for the Respondent
- This is an application pursuant to s 72(2)(b) of the Planning Act 2016 (Qld) (“PA”), seeking an order that the appellants be allowed to start part of the development, the subject of this appeal, in circumstances where it is submitted the outcome of the appeal would not be affected.
- The appeal arises as a consequence of conditions imposed by the respondent in respect of a development application for a development permit for material change of use (Dwelling house) and preliminary approval to carry out building work (New Dwelling house in the Coastal hazard, Flood, Traditional building character and Waterway corridors overlays) (“the development application”).
- The development application concerns land at 15 Byron Street, Bulimba and is essentially for a dwelling house on a narrow block of land which has an area of approximately 605m2 and adjoins the Brisbane River (“the land”).
- The notice of appeal was filed on 5 January 2022 and although initially wider in scope, is now confined to the appropriate requirements to contribute trunk infrastructure, comprising the dedication of a 10 metre-wide strip of land fronting the Brisbane River for park purposes, and to carry out works before the dedication. These works essentially consist of constructing a revetment wall adjoining the Brisbane River and demolishing a jetty which extends from the rear of the land into the Brisbane River.
- The proposed development contemplates a long, narrow dwelling house which is to be built to or very close to the boundaries of the adjacent properties with a bridge over the area the subject of the dedication (“the dedicated area”), which is to be used for part of the respondent’s Riverwalk network, which then connects to the jetty.
- In support of the application, the appellants have placed engineering evidence before the Court which I accept demonstrates that construction of the dwelling house will be more efficiently carried out if it occurs contemporaneously with the development of the adjoining property to the east. There will be engineering benefits should this occur, particularly in terms of the utilisation of each of the properties for staging works and for undertaking the necessary earthworks for the development of each of the properties.
- I also accept that in circumstances where the proposed dwelling house is to be approximately 50 metres long and ten metres wide, construction of the walls, and roof would be simplified if it occurs at the same time as the development of the property to the immediate east. It is also apparent that amenity impacts on neighbours will be minimised should all of this construction occur during the same period.
- Conversely, the respondent has placed engineering evidence before the Court which suggests that the construction of the Riverwalk within the dedicated area would be more expensive if this occurs after the construction of the dwelling house on the land.
- It is curious given the engineering evidence before me, that in circumstances when the notice of appeal was filed over seven months ago, no attempts to expedite the hearing of the appeal have occurred. Indeed, the draft order submitted to me by the appellants has, as its last step, the respondent filing and serving a particularised list of reasons why the conditions in dispute in the appeal should be imposed, and it is not proposed that this occur until 3 August 2022.
- Moreover, despite the evidence which suggests efficiencies and economies of scale being achieved through a co-ordinated development of the land and the land to the east, there is no evidence before me that the appellants have even entered into a contract to construct the dwelling house or that this construction is in any way imminent.
- The Court is granted a broad discretion pursuant to s 72(2)(b) of the PA. Obviously, it is not the intention of the legislature that development start before the appeal ends in the usual course of events. An application of this type should be the exception, not the rule and can only be approved where the Court “considers the outcome of the appeal would not be affected.” An example of where such an application was successful was in Harburg Nominees Pty Ltd v Brisbane City Council. The circumstances were very different, however. As Bowskill QC DCJ (as she then was) observed:
“In this case, the development itself is not in controversy in the appeal. It is only condition 4, which concerns roadworks to be the left turn facility at an intersection a block to the east of the site access to the subject site. Counsel for the co-respondent confirmed that it is not contended that the approved development ought not be allowed to proceed, even if condition 4 is ultimately, when the appeal is decided, not retained.”
- The proposed development in question in Harburg was a transport depot and the appeal essentially concerned the extent to which the appellant was required to carry out external roadworks. There was therefore not a particularly direct nexus between the roadworks obligations that were the subject of the appeal and the proposed use itself.
- The appellants submit that the same is true on the facts before me. The dwelling house which is proposed to be built is physically separated from the dedicated area. The appellants submit that the dwelling house component of the proposed development can be allowed to start because the outcome of the appeal relating to the appropriate conditions for the dedication of the land to the rear of the site for the extension of the Riverwalk will be unaffected.
- There is a superficial appeal to this argument. There is certainly a physical separation between the footprint of the proposed dwelling house and the area which remains the subject of the appeal. However, it is intended that the area that is the subject of the appeal will continue to be utilised by the occupants of the dwelling house should the appeal be successful. It is proposed that the jetty will be retained, not demolished, and used for the occupants of the dwelling house via a bridge over the Riverwalk area. There is therefore a direct nexus between the dwelling house and the jetty where the jetty is sought to be retained for the enjoyment of the occupants of the dwelling house.
- To put it another way, the terms of the dedication of the area to be utilised by the Riverwalk are interrelated with the prospective use of the land as a dwelling house.
- Obviously, riparian amenity is a significant attraction for the land and its use for residential purposes. Any riparian improvements, such as the existing jetty, will clearly enhance the value of the dwelling house and the amenity of it in terms of the use of the river. Unlike in Harburg, it is not just a question of obligations relating to external infrastructure without a particularly direct nexus with the proposed use.
- In these circumstances, I am of the view that it is not appropriate to grant the relief sought because I consider that the outcome of the appeal could be affected by the future occupants of the dwelling house asserting a loss of amenity as a consequence of being required to demolish the jetty. Also relevant to the exercise of my discretion is an absence of any pressing need to commence construction of the dwelling house or of any actual intent to do so in the near future.
- The application is therefore dismissed. I make an order in terms of the draft submitted on behalf of the respondent.
- Published Case Name:
Carmelo Ginardi & Anor v Brisbane City Council
- Shortened Case Name:
Carmelo Ginardi v Brisbane City Council
 QPEC 24
14 Jul 2022