Berlese v Brisbane City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Berlese v Brisbane City Council [2002] QPEC 073

PARTIES:

IVANO BERLESE
Appellant

v

Brisbane City Council
Respondent

FILE NO/S:

P&E Appeal No.2361 of 2002

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2002

JUDGE:

Quirk DCJ

ORDER:

I order that the appeal be dismissed

CATCHWORDS:

COUNSEL:

Mr R Wilson (agent), for the appellant
Mr B Job, for the respondent

SOLICITORS:

Brisbane City Legal Practice for the respondent

1. This appeal is against the respondent’s refusal of an application for a development permit for building work which involved the demolition of a dwelling house at Annerley.  The house is located on the northern side of Albert Street near its western end.  No proposal for further development of the site was part of the application. 

1. There is no dispute that the house was erected prior to 1947.  It is a typical high set dwelling of wooden construction with a hip and gabled form of iron roofing.  Some alterations have been made to it and these include the enclosure of what was once the front verandah.  The structure is in a relatively sound state of repair. 

1. The application was lodged after City Plan had come into force.  Under that instrument the application called for “notifiable code assessment”.  Forty-four submissions were made in response to public notification.  On 15 May of this year the application was refused on the basis of non-compliance with the Demolition Code and conflicts with any Desired Environmental Outcome for the Low-Medium Density Residential Area which requires that pre-1947 buildings are largely retained.  In the Council’s reasons it was emphasized that the subject house contributes positively to the traditional built character of Albert Street and that its demolition would constitute an important loss of character and amenity in the street.

1. The Statement of Intent for the Low-Medium Density Residential Areas provides:

“Parts of the Low-Medium Density Residential Area are included in the Demolition Control Precincts.  At these locations pre-1946 will be retained and new development will reflect pre-1947 architectural character.  Where feasible, development in Demolition Controlled Precincts will incorporate pre-1946 at the front of the new development”.

Included in the Desired Environmental Outcome for the area is the following statement:

“In Demolition Controlled Precincts, pre-1946 buildings are largely retained and new buildings reflect many of the precincts architectural themes”.

1. Section 3.5.13 of the Integrated Planning Act provides for the manner of assessment of a code assessable application.  The following sub-paragraphs appear relevant:

“(2)The assessment manager’s decision may conflict with an applicable code if there are sufficient grounds to justify the decision, having regard to the purpose of the code.

(3)However …….

(b)       for assessment against a code in a planning scheme – the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.        

(4)The assessment manager may refuse the application only if the assessment manager is satisfied –

(a)the development does not comply…