Australia: Court found that privacy did not outweigh the level of amenity expected in Spring Hill


The case of Steendyk v Brisbane City Council & Ors [2016] QPEC 47 concerned an application commenced in the Planning and Environment Court by Brian Steendyk against Ellen and Kevin Calder-Potts and the Brisbane City Council seeking the following declarations:

  • that the Calder-Potts' request made on 9 October 2014 to change a development approval given in 2010 was not a permissible change within the meaning of section 367 of the Sustainable Planning Act 2009;
  • that the decision of the Council made on 20 November 2014 to approve the permissible change request was of no force and effect;
  • that the removal of the privacy screens which were conditioned as part of an approval given by the Court in 2002 constituted a development offence under section 580 of the Sustainable Planning Act 2009.

The Council's decision to approve the permissible change request approved, among other things, the replacement of fixed privacy screens on the north western side of the Calder-Potts' verandah, with a one metre high solid weatherboard wall with folding timber shutter screens above.

Mr Steendyk's primary concern was the impact on the privacy and amenity of his house when the moveable louvres on the western edge of the desk were in the open position. He claimed that occupants of the room could clearly see the rear yard of his house, part of the lower floor and into both bedrooms on the upper floor of his house.

The Court did not find that any of the grounds relied upon by Mr Steendyk had been made out and ultimately decided not to grant the declaratory relief sought.


In support of the declarations sought, Mr Steendyk relied on the following grounds:

  • the Council did not have jurisdiction to assess the permissible change request because the change was required to be made to the 2002 Court approval and only the Court had jurisdiction to deal with the request;
  • the Council's decision was affected by jurisdictional error which included the Council's failure to take into account relevant considerations, and its decision was so unreasonable that no reasonable local government could have made it.


The Council and the Calder-Potts submitted that the process for dealing with a permissible change request was two-fold. Firstly, the responsible entity was required to determine whether the change requested was a "permissible change" within the meaning of section 367(1) of the Sustainable Planning Act 2009. Secondly, if the change was found to be a "permissible change", the responsible entity was required to assess the request under section 374 of the Sustainable Planning Act 2009, and then to decide the request under section 375 of the Sustainable Planning Act 2009.

Mr Steendyk contended that the responsible entity was required to have regard to the matters set out in section 374 of the Sustainable Planning Act 2009 in determining whether a change was a "permissible change", which provided a range of matters the responsible entity would have regard to.

The Court considered that whether a proposed change was a "permissible change" would be a factual criterion involving the decision-maker's evaluation and formation of opinion and that it was necessary to satisfy this criterion in order to enliven the power of the responsible entity to exercise a discretion.

The Court found that "there is nothing in the language used, in either s 367 or s 374, or elsewhere in this division, which suggests that, in determining whether the definition in s 367 is met, regard must be had to the matters set out in s 374. Section 374 expressly refers to "assess[ing] the request", within a separate subdivision headed "assessing and deciding request for change". There is no apparent link between that section, and the definition section in s 367".


The 2002 Court approval required the owner to "fix privacy screens up to 1.8 metres above floor level to the sides of all balcony(s)/verandah(s)". In reliance on section 245 of the Sustainable Planning Act 2009, Mr Steendyk submitted that since the 2002 Court approval had not been cancelled and there had not been an abandonment of the use of the premises as a house, the approval remained in effect and bound the Calder-Potts as owners of the property.

Mr Steendyk further submitted that section 347(a) of the Sustainable Planning Act 2009 did not allow a condition of a development approval to "be inconsistent with a condition of an earlier development approval...still in effect for the development".

The Court accepted that section 245 of the Sustainable Planning Act 2009 allowed different development approvals for the same land to co-exist. However, the Court noted that "it cannot be correct to say that an approval for development, which has already taken place and been completed, in this case in 2002, continues to bind the owner, and their successors in title, in such a way as to restrict the scope of any subsequent works that may be sought to be carried out to the house".

With respect to section 347(a) of the Sustainable Planning Act 2009, the Court found that the 2002 Court approval was not an approval "still in effect for the development" the subject of the 2010 development approval, because the 2010 development approval was for different "development".

The Court ultimately found that the permissible change request was to change the 2010 development approval, not the 2002 Court approval, and that the Council did have jurisdiction to assess it under section 369 of the Sustainable Planning Act 2009.


Mr Steendyk submitted that the Council had failed to take into account relevant considerations by not having regard to the 2002 Court approval in reaching its decision.

Mr Steendyk sought to rely on the decision in Dunlop v Wollahra Municipal Council (1975) 2 NSWLR 446 for the proposition that the Council was to have imputed knowledge of the history of dealings with the land, whether the act was performed by one person, or by several persons.

However, the Court did not accept Mr Steendyk's submission and found that it would be "a strenuous step too far" to do so. The Court considered that the Dunlop decision only confirmed that the decision-maker could be informed by reports and other documents that were before the decision-maker at the time the decision was made and was not restricted to the decision itself.

The Court nonetheless found that there was no basis to conclude that the Council was required to have regard to any of the pre-2010 material.


Mr Steendyk also contended that the decision of the Council to approve the permissible change request in circumstances where it had actual knowledge that Mr Steendyk held firm views as to the importance of fixed privacy screening on the verandah, was so unreasonable that no reasonable local government could have made it.

Given its finding with respect to the pre-2010 material, the Court found that there was a lack of evidence to show that the Council knew about Mr Steendyk's "firm views" in relation to the fixed screening and that as a result, there was no basis for this argument.


Whilst the Court did not accept Mr Steendyk's arguments, it went on to consider its discretion to grant the relief sought. The Court found a number of discretionary factors which weighed strongly against the grant of the relief sought by Mr Steendyk which included:

  • the importance of providing privacy did not outweigh the level of amenity that could reasonably be expected in an area such as Spring Hill;
  • the works had already been completed by the Calder-Potts and were part of a broader range of works;
  • the works had been carried out at considerable expense;
  • the works were carried out in good faith and in reliance on the validity of the approval;
  • the cost of $23,000 to reverse the works was not inconsiderable;
  • the impact on the privacy of Mr Steendyk's land and home was negligible and had caused no concern to the Calder-Potts' closer neighbours;
  • it was unreasonable for Mr Steendyk to seek to impose restraints on the Calder-Potts' property, requiring them to have fixed privacy screens of a particular kind on their verandah, in order to preserve privacy for Mr Steendyk;
  • a new application for a development approval for the works which had been carried out would have been code assessable under the Brisbane City Plan 2014 and Mr Steendyk would have had no right to make any submission, or to challenge the merits of any decision.

The Court ultimately found that even if it had found some basis on which to invalidate the Council's decision to approve the permissible change request, it would have declined to grant the relief sought by Mr Steendyk for discretionary reasons.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Wright
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions