Insights

In brief

The case of Stankovic v Brisbane City Council [2015] QPEC 17 concerned an appeal by Mr Dusan Stankovic in the Planning and Environment Court against conditions imposed by Brisbane City Council in respect of filling work undertaken by Mr Stankovic on his land.  

The council contended that Mr Stankovic carried out filling on his land in breach of the conditions under the development permit and relevant provisions of the Brisbane City Plan 2000 and Brisbane City Plan 2014 and required the unlawful fill to be removed from his land.  Mr Stankovic denied that the fill was deposited on his land unlawfully and commenced an appeal in the court.

The court found that Mr Stankovic introduced fill material onto his land in breach of the conditions under the development permit and was otherwise in conflict with the Brisbane City Plan 2000 and Brisbane City Plan 2014.  

The court concluded that the unlawful fill interfered with local drainage and overland flows which caused water diversion and ponding on neighbouring land, and the remedial works proposed by the council’s hydraulic engineer were necessary and reasonable, other than the removal of the surface of part of the access easement.

Mr Stankovic was ordered by the court to comply with the conditions package dated 15 December 2014 as modified by the drainage relief works other than the requirement to lower the surface level of the access easement.

Council contended that filling work undertaken by Mr Stankovic was in breach of the development permit and the work required an additional development permit which Mr Stankovic had failed to obtain, and required Mr Stankovic to remove the fill deposited beyond the footprints of the house and tennis court

In December 2007, Mr Stankovic obtained a development permit for a material change of use for a house and tennis court in respect of his land which included a number of conditions concerning the grant of easements to facilitate underground drainage and overland water flow and the prohibition of the deposition of material within the area of the waterway corridor. 

In June 2012, the council issued a show cause notice to Mr Stankovic, following an inspection of his land, alleging that:

material had been deposited within the waterway corridor in breach of the development permit; and 
the filling work was assessable development as it was not necessary for or incidental to the building work for the house and Mr Stankovic had not obtained a development permit for carrying out such filling work. 

Mr Stankovic denied that there was a breach of the development permit and there was a need for any additional development permit.

The council subsequently issued an enforcement notice to Mr Stankovic requiring the removal of fill deposited beyond the house and tennis court footprints.  Mr Stankovic sought to challenge the enforcement notice by bringing a proceeding before the Building and Development Dispute Resolution Committee.

However, the proceeding was dismissed by the committee as it did not have jurisdiction to deal with the matter.  Mr Stankovic consequently commenced an appeal in the Planning and Environment Court in respect of matters contended by the council associated with the filling work.

The court found that the filling work undertaken by Mr Stankovic on his land was in breach of the development permit and relevant provisions of the council’s planning scheme and was therefore unlawful

The first issue was whether the filling work undertaken by Mr Stankovic on his land was in breach of the development permit and relevant provisions of the Brisbane City Plan 2000 and Brisbane CityPlan 2014.

Mr Stankovic acknowledged that material was introduced onto his land.  However, he maintained that it was not introduced in breach of the development permit or the council’s planning scheme provisions since the filling work was ancillary to the construction of the house and tennis court and was therefore not operational work.

During cross-examination, Mr Stankovic sought to change his initial position and contend that the purpose of the filling was to restore his land back to its original or natural levels due to some alleged excavation works on his land carried out by an unknown person.

Overall, the court found that Mr Stankovic's evidence was unsatisfactory.  Nonetheless, on Mr Stankovic’s evidence itself as well as the evidence of the hydraulic engineering experts and the owner of the neighbouring property, the court was satisfied that the filling work undertaken by Mr Stankovic on his land was in breach of the development permit and relevant provisions of the council’s planning schemes.

The court found that the unlawful filling work caused ponding which impacted on neighbouring properties

The second issue was whether the unlawful filling work caused ponding which impacted on neighbouring properties.

Whilst there was a dispute about the volume of material introduced into the waterway, the court found that the unlawful fill had a significant adverse impact on flows across the waterway corridor, irrespective of its volume.  

With the benefit of the evidence of the hydraulic engineering experts and the owner of the neighbouring property, the court was satisfied that the unlawful fill significantly restricted the natural east to west flow of water across Mr Stankovic’s land, which caused an impact on neighbouring properties.

In the context of the planning scheme provisions concerning flooding, the court found that the introduction of unlawful fill was in conflict with those provisions.

The court found that the remedial works proposed by the council's hydraulic engineering expert were necessary and reasonable except for the removal of material from the access easement surface

The third issue was whether the remedial works proposed by the council’s hydraulic engineering expert were reasonably necessary to rectify the issues caused by the unlawful fill.

The council’s hydraulic engineering expert proposed a number of remedial works which included the provision of a 225mm pipe under the northern section of the access easement and removal of material from part of the access easement surface, to which the hydraulic engineering expert retained by Mr Stankovic did not oppose or provide any alternatives.

However, the council’s hydraulic engineering expert later conceded that further survey work might be necessary prior to requiring the removal of material from part of the access easement surface.

Accordingly, the court was satisfied that the remedial works proposed by the council’s hydraulic engineering expert were necessary and reasonable, other than the removal of material from the access easement surface.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​