Barnes v Southern Downs Regional Council (No 2) - [2011] QPEC 119

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Barnes & Anor v Southern Downs Regional Council & Ors (No 2) [2011] QPEC 119

PARTIES:

JOHN EDWARD MYTTON BARNES AND GEOFFREY FREDERICK COOK
(Appellants)

V

SOUTHERN DOWNS REGIONAL COUNCIL
(Respondent)

And

THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Co-Respondent)

And

MCCONAGHY GROUP PTY LTD ACN 108 353 199
(Second Co-Respondent)

FILE NO/S:

Appeal No. 313 of 2010

DIVISION:

Appellate

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

14 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27-29 July, 4-5 August 2011

JUDGE:

Robin QC DCJ

ORDER:

Appeal allowed, development application refused

CATCHWORDS:

Integrated Planning Act 1997 s 3.5.14(2)

Queensland Heritage Act 1992 s 33, s 44, s 87, s 89

Whether proposed demolition of service wing of a “heritage place” listed in Council’s Planning Scheme Policy - Cultural Heritage was external building works and code assessable, such that the impact assessment process gone through in which appellants lodged submissions did not lead to appeal rights - demolition of service wing held to conflict with planning scheme, which favoured retention - ground relied on by developer and Council to justify approval notwithstanding conflict (that the demolition could not occur until work to stabilise the remaining (more significant) part of the building) held insufficient - cultural heritage significance of the service wing was “considerable” rather than “some” or “little or none”.

COUNSEL:

Dr. C. McGrath for the appellants

Mr. M. Connor (Solicitor) for the respondent

Mr. N. Loos for the co-respondent

Mr. D. M. Favell for the second co-respondent

SOLICITORS:

Cook & Associates for the appellants

Connor O’Meara for the respondent

Department of Environment and Resource Management for the co-respondent

Gadens Lawyers for the second co-respondent

This is an appeal by submitters against the Council’s granting of a preliminary approval for building works described as “Preliminary Approval for Building Work (Partial Demolition of Building on the Register of Cultural Heritage Places)” advised by the Council by letter of 26 November 2009 (the day following the approval) at 84 Fitzroy Street, Warwick (lot 1 RP94676). The Register of Cultural Heritage Places is a local register kept for purposes of the former Shire of Warwick’s Planning Scheme Policy No. 1 Cultural Heritage. The listing had the effect that demolition would require an impact assessable development application, opening the way for interested persons to lodge submissions, as the appellants did, and thereafter to appeal, should the Council’s decision disappoint. It will be necessary to make some comments below regarding the contention presented by the respondent (the successor of the Warwick Shire Council) that, on analysis, the second co-respondent’s development application was really for code assessable development, that the public notification process pursued, including any submission, was therefore a nullity, giving rise to no appeal rights. The court rejects the contention. The appeal boils down to a balancing exercise. Does the conditioning of the partial demolition of a building the planning scheme (like the Queensland Heritage Act 1992) wants…

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: [2011] QPEC 119
Decision Date: 14 September 2011

CaseChat Overview and Summary

Barnes v Southern Downs Regional Council (No 2) involved the appellants, who contested the respondent council's approval of a development application for the demolition of a service wing of a heritage building. The building was listed in the Council's Planning Scheme Policy - Cultural Heritage, and the appellants argued that the proposed demolition conflicted with the planning scheme, which favoured retention. The court was required to determine whether the proposed demolition constituted external building works that were code assessable, and whether the appellants' impact assessment process submissions gave rise to appeal rights.

The legal issues before the court included whether the proposed demolition was subject to the impact assessment process and whether the appellants had appeal rights. The court also needed to decide whether the proposed demolition of the service wing constituted external building works and whether it was code assessable. Additionally, the court had to consider the cultural heritage significance of the service wing and whether the ground for approval relied on by the developer and Council was sufficient.

The court found that the proposed demolition of the service wing constituted external building works and was code assessable. It was held that the impact assessment process gone through in which the appellants lodged submissions did not lead to appeal rights. The court determined that the demolition conflicted with the planning scheme, which favoured retention. The ground relied on by the developer and Council to justify approval, that the demolition could not occur until work to stabilise the remaining part of the building, was held insufficient. The cultural heritage significance of the service wing was found to be considerable, rather than some or little or none.

The appeal was allowed, and the development application was refused. The court's decision recognised the cultural heritage significance of the service wing and the importance of retaining it in line with the planning scheme.

Orders

Orders of the court

Appeal allowed, development application refused

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:	Barnes & Anor v Southern Downs Regional Council & Ors (No 2) [2011] QPEC 119
PARTIES:	JOHN EDWARD MYTTON BARNES AND GEOFFREY FREDERICK COOK (Appellants) V SOUTHERN DOWNS REGIONAL COUNCIL (Respondent) And THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (Co-Respondent) And MCCONAGHY GROUP PTY LTD ACN 108 353 199 (Second Co-Respondent)
FILE NO/S:	Appeal No. 313 of 2010
DIVISION:	Appellate
PROCEEDING:	Submitter Appeal
ORIGINATING COURT:	Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:	14 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27-29 July, 4-5 August 2011
JUDGE:	Robin QC DCJ
ORDER:	Appeal allowed, development application refused
CATCHWORDS:	Integrated Planning Act 1997 s 3.5.14(2) Queensland Heritage Act 1992 s 33, s 44, s 87, s 89 Whether proposed demolition of service wing of a “heritage place” listed in Council’s Planning Scheme Policy - Cultural Heritage was external building works and code assessable, such that the impact assessment process gone through in which appellants lodged submissions did not lead to appeal rights - demolition of service wing held to conflict with planning scheme, which favoured retention - ground relied on by developer and Council to justify approval notwithstanding conflict (that the demolition could not occur until work to stabilise the remaining (more significant) part of the building) held insufficient - cultural heritage significance of the service wing was “considerable” rather than “some” or “little or none”.
COUNSEL:	Dr. C. McGrath for the appellants Mr. M. Connor (Solicitor) for the respondent Mr. N. Loos for the co-respondent Mr. D. M. Favell for the second co-respondent
SOLICITORS:	Cook & Associates for the appellants Connor O’Meara for the respondent Department of Environment and Resource Management for the co-respondent Gadens Lawyers for the second co-respondent