Bilalis v Brisbane City Council

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PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND


CITATION:

Bilalis v Brisbane City Council [2017] QPEC 42

PARTIES:

ANGELOS BILALIS
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

4870 of 2016

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

24 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21 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 houses are located in a street of mixed character – whether the proposed demolition complied with the Traditional building character (demolition) overlay code – whether 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:

Planning Act 2016 (Qld), s 311

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

CASES:

Guiney v Brisbane City Council [2016] QPELR 575; [2016] QPEC 26, approved

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

Ken Drew Town Planning Pty Ltd v Brisbane City Council [2017] QPELR 49; [2016] QPEC 62, considered

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

Thurecht & Anor v Brisbane City Council [2015] QPELR 604; [2015] QPEC 19, approved

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

COUNSEL:

N Loos for the appellant

B D Job for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellant

Brisbane City Legal Practice for the respondent

  1. This appeal is against the decision of the respondent, Brisbane City Council (“Council”) refusing the appellant’s development application seeking a preliminary approval for building work to facilitate demolition of a pre-1947 residential building at 7 Birkbeck Street, Albion.

The decision framework

  1. The appeal was commenced under s 461 of the now repealed Sustainable Planning Act 2009 (Qld). Pursuant to s 311 of the Planning Act 2016 (Qld), the appeal is to be decided under the provisions of the Sustainable Planning Act 2009. 

  1. Under s 495, the appeal proceeds by way of hearing anew.

  1. The development application was made on 4 October 2016 under Brisbane City Plan 2014 (“City Plan”).

  1. As the development application was code assessable, it is to be assessed having regard to s 313 of the Sustainable Planning Act 2009. The…

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Details
Case
[2017] QPEC 42
Decision Date

CaseChat Overview and Summary

The appellant, Bilalis, sought to demolish a building in Brisbane which the respondent, Brisbane City Council, opposed on the basis that it was inconsistent with the preservation of the traditional building character of the street. The appeal was dismissed by the Queensland Planning and Environment Court and the appellant sought to appeal to the Queensland Court of Appeal. The court was required to determine whether the proposed demolition complied with the Traditional building character (demolition) overlay code and whether the demolition of the building would result in a meaningful or significant loss of traditional building character.

The court found that the street in question had a mix of architectural styles and that the appellant’s property was not of outstanding significance in contributing to the street’s visual character. The court further found that the appellant had not demonstrated that the proposed demolition would result in a meaningful or significant loss of traditional building character. The court noted that the street was not homogenous in character and that the appellant’s property did not hold a special place in the street’s character. The court held that the appellant had failed to demonstrate that the proposed demolition would result in a meaningful or significant loss of traditional building character and dismissed the appeal.

The appeal is dismissed. The court found that the appellant had not demonstrated that the proposed demolition would result in a meaningful or significant loss of traditional building character. The court further found that the street in question was not homogenous in character and that the appellant’s property did not hold a special place in the street’s character. The court held that the decision of the respondent to refuse the appellant’s application to demolish the building was lawful and dismissed the appeal.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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