WAW Developments Pty Ltd v. Brisbane City Council. Country/Territory Australia Type of court National - higher court Date Mar 18, 2011 Source UNEP, InforMEA Court name Supreme Court of Queensland Seat of court Brisbane Judge Muir and Chesterman JJA and Ann Lyons J. Reference number [2011] QCA 47 Language English Subject Land & soil, Legal questions Keyword Land-use planning Abstract This case concerned an appeal to the Queensland Court of Appeal (Court) by WAW Developments Pty Ltd (Appellant) against a decision of the Planning and Environment Court (P&E Court) to strike out its appeal against the Brisbane City Councils (Respondent) refusal of its development application to extend an existing approved restaurant use. The approval that was sought can be more particularly described as an approval to use a 40m² deck area that was constructed over the existing footpath adjoining the restaurant for outdoor dining and to form part of the restaurant premises. The Respondent subsequently refused the Appellants development application and in December 2009, the Appellant appealed the Respondents refusal to the P&E Court. The Respondent argued that pursuant to section 3.2.1(5) (Applying for a development approval) of the IPA, the development application was not a properly made application because the development involved a State resource prescribed under a regulation and it was not accompanied by evidence that the Chief Executive of the department administering the resource was satisfied either that the development was consistent with an allocation of, or entitlement to, the resource, or that the development application may proceed in the absence of an allocation of, or entitlement to, the resource. Prior to the development application being lodged with the Respondent, the Appellant had applied to the relevant department with responsibility for administration of the road, the Department of Environment and Resource Management (DERM), requesting evidence of resource entitlement and also for tenure approval for the existing outdoor dining and footpath entitlement over the State resource. The DERM responded by way of a letter to the Appellant identifying that it did not require tenure over the subject area but it would give a General Authority that the activity of outdoor dining was ‘traditionally consistent with the use of a road. In that appeal His Honour Everson DCJ, did not agree that the letter issued by DERM constituted such evidence, rather that it was only ‘referring to a General Authority and that such authority only included outdoor dining to which the public has unrestricted access where there were no ‘fixed improvements unless they form part of the streetscape. His Honour did not consider that the Appellants deck formed part of the streetscape and summarily dismissed the appeal on the ground that the development application was not a properly made one. Thus the present appeal. The Court found that the P&E Court erred on a question of law by wrongly concluding that the DERMs letter did not provide the evidence required by section 3.2.1(5) (Applying for a development approval) of the IPA. It would be impossible to read the letter provided by DERM as indicating anything other than the Chief Executives satisfaction that the development might proceed and that the development did not adversely affect the State resource in question. The letter expressly noted that the DERM did not require the Appellant to obtain tenure over the part of the footpath covered by its deck and the reference to the General Authority, and copy provided with the letter, clearly indicated that the DERM did not require the Appellant to obtain entitlement to the State resource and was content for the development application to proceed without such an entitlement, and that it regarded the use of the deck for outdoor dining as an acceptable use of the footpath. The appeal was allowed. Full text COU-156840.pdf