Barnes v Southern Downs Regional Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Barnes & Anor v Southern Downs Regional Council & Ors [2010] QPEC 131

PARTIES:

JOHN EDWARD MYTTON BARNES AND JEFFREY FREDERICK COOK
(appellants)

V

SOUTHERN DOWNS REGIONAL COUNCIL
(respondent)

And

THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(first co-respondent)

And

McCONAGHY GROUP PTY LTD

(second co-respondent)

FILE NO/S:

BD 313 of 2010

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2010, 11 October 2010

JUDGE:

Rackemann DCJ

ORDER:

I find that the development, the subject of the development application, is not the making of an assessable material change of use. I also conclude that the appeal is properly limited to the partial demolition of 84 Fitzroy Street.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Issues determined at a preliminary stage – whether proposal for demolition constitutes the making of a material change of use as well as building work – whether the code assessable demolition of one building so ‘inextricably linked’ to the impact assessable demolition of another so as to permit the appellants to raise issues about the code assessable development

Fox & Anor v Brisbane City Council & Ors [2003] QCA 330

Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor [2009] QPEC 86

Half Back Pty Ltd v Logan City Council [2003] QPEC 9

COUNSEL:

Dr McGrath for the appellants

Mr Connor (solicitor) for the respondent

Mr Sheridan for the second co-respondent

SOLICITORS:

Cook and Associates for the appellants

Connor O’Meara for the respondent

Department of Environment and Resource Management for the first co-respondent

Gadens Lawyers for the second co-respondent

1. This appeal is by adverse submitters against the Council’s decision to grant a preliminary approval for building work, being the demolition of a building at 82 Fitzroy Street, Warwick, and the partial demolition of another at 84 Fitzroy Street.  The buildings adjoin the Rose City Shopping centre. 

1. Both buildings are listed in the Queensland Heritage Register, but only 84 Fitzroy Street is listed in the Council’s Register of Cultural Heritage Places. The proposed demolition works are assessable development but, on the face of it, only the partial demolition of the building at 84 Fitzroy Street was impact assessable. On that basis, the appellants’ appeal would only validly be against the approval of the partial demolition of 84 Fitzroy Street.[1]

   [1] Section 4.1.28 Integrated Planning Act (1997).

1. If the buildings are allowed to be demolished/partly demolished, the co-respondent intends to seek to use the land freed up by the demolition to extend its shopping centre.

1. In order to overcome the apparently limited permissible scope of the appeal, the appellants contend that:

a.        the proposed demolition work constitutes not only building work, but the making of an impact assessable material change of use, across both properties, for an extension of the shopping centre; and

b.        the demolition of 82 Fitzroy Street is so inextricably linked with the partial demolition of 84 Fitzroy Street that,…