Althaus v Brisbane City Council - [2017] QPEC 41

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Althaus & Anor v Brisbane City Council [2017] QPEC 41

PARTIES:

NATHAN ALTHAUS

and

LAURA ALTHAUS
(appellants)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

914 of 2016

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

21 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 and 20 July 2017

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL BUILDING CHARACTER – where the traditional building character was the “timber and tin” character – where the building is structurally unsound – where houses are located in a street of mixed character – whether the proposed demolition complied with the Traditional building character (demolition) overlay code – whether the building is reasonably capable of being made structurally sound – where the demolition of the building would result in meaningful or significant loss of traditional building character – whether the street had no traditional character – whether the house positively contributed to the visual character of the street.

LEGISLATION:

Sustainable Planning Act 2009, s 313, s 324, s 326, s 461, s 493, s 495

CASES:

Armstrong v Brisbane City Council [2003] QPELR 475, followed

Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601; [2006] QPEC 44, approved

Farrah v Brisbane City Council [2016] QPELR 449; [2016] QPEC 19, approved

Gould v Brisbane City Council [2001] QPELR 77, approved

Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [29]; [2016] QPEC 42, approved

Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147; [2007] QPEC 93, followed

Kevin McSweeney Pty Ltd v Brisbane City Council [2012] QPELR 295; [2011] QPEC 138, approved

Leach v Brisbane City Council [2011] QPELR 609; [2011] QPEC 55, approved

Lonie v Brisbane City Council [1998] QPELR 209, approved.

Lucas v Brisbane City Council [2015] QPELR 671; [2015] QPEC 25, approved

Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45, approved

Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223 at 225; [2016] QPEC 3, approved

Unterweger v Brisbane City Council [2012] QPELR 335; [2011] QPEC 134, approved

COUNSEL:

S Fynes-Clinton for the appellant
B D Job for the respondent

SOLICITORS:

H Drakos & Company for the appellant
Brisbane City Legal Practice for the respondent

TABLE OF CONTENTS

Introduction............................................................................................................................ 3

The Traditional building character (demolition) overlay code..................................................... 6

The Wynnum-Manly neighbourhood plan code........................................................................ 9

Conflict with the Traditional building character (demolition) overlay code................................ 10

Is the building reasonably capable of being made structurally sound?...................................... 10

General principles............................................................................................................... 10

The evidence....................................................................................................................... 16

The need for replacement of all of the pine flooring.......................................................... 19

Demolition and reconstruction of Flats 4 and 5................................................................. 22

Replacement of north and east window sills to tower........................................................ 24

Repainting of upper external walls of dwelling.................................................................. 24

Upgrading (replacement) of plumbing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QPEC 41
Decision Date: 21 July 2017

CaseChat Overview and Summary

The case of Althaus v Brisbane City Council involved an appeal against the Council's decision to permit the demolition of a building with traditional building character, specifically its "timber and tin" character. The building was located in a street of mixed character and was deemed structurally unsound. The applicant argued that the proposed demolition did not comply with the Traditional Building Character (Demolition) Overlay Code and that the building was reasonably capable of being made structurally sound. Additionally, it was contended that the demolition would result in a meaningful loss of traditional building character and that the house positively contributed to the visual character of the street.

The primary legal issues before the court were whether the proposed demolition complied with the relevant planning regulations, and whether the street had no traditional character, thus affecting the building's character and the potential for its preservation. The court had to consider the structural integrity of the building, the potential for its restoration, and the impact of its demolition on the traditional character of the area. Furthermore, the court examined whether the house contributed to the visual character of the street, and if so, whether this was a factor in the decision-making process.

The court found that the applicant failed to establish that the proposed demolition did not comply with the Traditional Building Character (Demolition) Overlay Code. It held that the building was not reasonably capable of being made structurally sound, and the loss of traditional building character was not significant enough to warrant refusal of the demolition permit. The court also determined that the street had no traditional character, and therefore, the house did not positively contribute to the visual character of the street. Consequently, the appeal was dismissed.

The orders of the court were that the appeal is dismissed. The Brisbane City Council's decision to permit the demolition of the building was upheld, and the applicant's appeal was rejected.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Althaus & Anor v Brisbane City Council [2017] QPEC 41
PARTIES:	NATHAN ALTHAUS and LAURA ALTHAUS (appellants) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	914 of 2016
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	21 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	17, 18 and 20 July 2017
JUDGE:	Kefford DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL BUILDING CHARACTER – where the traditional building character was the “timber and tin” character – where the building is structurally unsound – where houses are located in a street of mixed character – whether the proposed demolition complied with the Traditional building character (demolition) overlay code – whether the building is reasonably capable of being made structurally sound – where the demolition of the building would result in meaningful or significant loss of traditional building character – whether the street had no traditional character – whether the house positively contributed to the visual character of the street.
LEGISLATION:	Sustainable Planning Act 2009, s 313, s 324, s 326, s 461, s 493, s 495
CASES:	Armstrong v Brisbane City Council [2003] QPELR 475, followed Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601; [2006] QPEC 44, approved Farrah v Brisbane City Council [2016] QPELR 449; [2016] QPEC 19, approved Gould v Brisbane City Council [2001] QPELR 77, approved Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [29]; [2016] QPEC 42, approved Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147; [2007] QPEC 93, followed Kevin McSweeney Pty Ltd v Brisbane City Council [2012] QPELR 295; [2011] QPEC 138, approved Leach v Brisbane City Council [2011] QPELR 609; [2011] QPEC 55, approved Lonie v Brisbane City Council [1998] QPELR 209, approved. Lucas v Brisbane City Council [2015] QPELR 671; [2015] QPEC 25, approved Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45, approved Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223 at 225; [2016] QPEC 3, approved Unterweger v Brisbane City Council [2012] QPELR 335; [2011] QPEC 134, approved
COUNSEL:	S Fynes-Clinton for the appellant B D Job for the respondent
SOLICITORS:	H Drakos & Company for the appellant Brisbane City Legal Practice for the respondent