Brisbane City Council v Klinkert - [2019] QCA 40

SUPREME COURT OF QUEENSLAND

CITATION:

Brisbane City Council v Klinkert [2019] QCA 40

PARTIES:

BRISBANE CITY COUNCIL
(applicant)
v
STEPHEN KLINKERT
(respondent)

FILE NO/S:

Appeal No 7886 of 2018
DC No 3458 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Planning and Environment Court Act

ORIGINATING COURT:

Planning and Environment Court – [2018] QPEC 30

DELIVERED ON:

12 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2018

JUDGES:

Gotterson and Philippides JJA and Boddice J

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal be dismissed.

3.   That the applicant pay the respondent’s costs of the application for leave and the appeal, to be assessed on the standard basis.

CATCHWORDS:

ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – MATTERS FOR CONSIDERATION – ON APPLICATIONS FOR DEMOLITIONS – where the Council refused building work, namely the demolition of a house – where the house was an inter-war house – where the house was said to be a strong contributor to the character of the street – where the house was subject to the City Plan 2014 – where the issues turned on statutory interpretation – whether the development complied with the Demolition Code, effective on 19 May 2017 – whether, if the development complied with the May 2017 Code, s 60(2)(a) of the PlanningAct mandated approval of that application – whether and what weight was to be given to the amended Demolition Code

Planning Act 2016 (Qld), s 43, s 45, s 59, s 60
Planning and Environment Court Act 2016 (Qld), s 63

COUNSEL:

B D Job QC for the applicant
D R Gore QC, with J Lyons, for the respondent

SOLICITORS:

Brisbane City Council for the applicant
Broadley Rees Hogan for the respondent

GOTTERSON JA: I agree with the orders proposed by Boddice J and his Honour’s reasons for them. I would add the following brief observations.
The meaning intended for s 45(7) of the Planning Act 2016 (Qld) is unclear. It follows a provision, s 45(6), which mandates that an assessment of an application that is carried out against a statutory instrument or other document which is applied, adopted or incorporated, must be carried out against such instrument or document as is in effect when the application was properly made.
Section 45(7) operates if the statutory instrument or other document is amended or replaced before the application is decided. The section implies that when there is such an amendment or replacement, the assessment which is to precede determination of the application may be carried out having regard to the terms of the amendment or the replacing document.
However, as I have noted, the immediately preceding provision, s 45(6), expressly stipulates that the assessment must be carried out against the statutory instrument or other document as in effect when the application was properly made; that is to say, the statutory instrument or other document as it is in effect prior to the amendment or replacement.
Within the framework for which…

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: [2019] QCA 40
Decision Date: 12 March 2019

CaseChat Overview and Summary

In the case of Brisbane City Council v Klinkert, the respondent appealed the refusal of an application to demolish a house in Toowong, Brisbane. The application was lodged on 30 June 2017, but was refused by the Council on 15 August 2017. The respondent subsequently appealed to the court on 12 September 2017. The central issue was whether the application to demolish the house complied with the Demolition Code in force at the date the application was properly made, and if so, whether section 60(2)(a) of the Planning Act mandated approval of that application. The court also had to consider the effect of the amended Demolition Code, which took effect on 1 December 2017, and whether the discretion conferred by s 60(2)(b) of the Act, ought to be exercised in the respondent’s favour.

The primary judge held that the house was not treated as traditional building character by PO5(a) of the Demolition Code, as it was not in the character residential zone. The judge found that the application complied with PO5(a) and AO5(c) of the Demolition Code in force at the date the application was properly made. The judge also found that s 60(2)(a) of the Planning Act mandated approval of the application, as it complied with the assessment benchmarks in force at the time the application was properly made. The court rejected the Council’s submission that the decision-making process involved the assessment manager carrying out an assessment of the development application against the amended City Plan 2014 and the amended Demolition Code.

The court granted leave to appeal and dismissed the appeal. The respondent was ordered to pay the respondent’s costs of the application for leave and the appeal, to be assessed on the standard basis. The court found that the application complied with the Demolition Code in force at the date the application was properly made, and that s 60(2)(a) of the Planning Act mandated approval of that application. The court did not find it necessary to consider the effect of the amended Demolition Code, which took effect on 1 December 2017, as the application complied with the Code in force at the date the application was properly made.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be dismissed.

3. That the applicant pay the respondent’s costs of the application for leave and the appeal, to be assessed on the standard basis.

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

Prior to those amendments taking effect, the respondent lodged the development application, the subject of the appeal below. That development application, lodged on 30 June 2017, was refused by the Council on 15 August 2017. On 12 September 2017, the respondent instituted an appeal against that decision.Primary Judge’s decision The respondent’s appeal was conducted in accordance with an agreed list of issues. That list raised three matters. First, whether the development complied with the Demolition Code, effective on 19 May 2017. Second, in the event the development did comply with the May 2017 Code, whether section 60(2)(a) of the Planning Act mandated approval of that application. Third, if not, what weight (if any), was to be given to the amended Demolition Code, which took effect on 1 December 2017 and, whether the discretion conferred by s 60(2)(b) of that Act, ought to be exercised in the respondent’s favour. In respect of the first issue, the primary judge noted that the case had been conducted by both parties “on the footing that compliance with any limb of PO5 (Performance Outcome 5) or AO5 (Acceptable Outcome 5) demonstrates compliance with the demolition code”. The primary judge also noted that the Demolition Code directed the reader to the PSP for guidance. After considering each of those matters, in the context of other provisions, the primary judge held that whilst Performance Outcome (PO) 5(a) of the Demolition Code is directed to traditional building character, the protection was qualified in its application to land in the character residential zone under City Plan 2014. The Toowong house and land were not included in the character residential zone. Accordingly the house was not treated as traditional building character by that aspect of the PSP. Further, ss 2.2(3) and 2.3(4) of the PSP stated in unequivocal terms that building fabric will not comprise traditional building character where the site is not included in the character residential zone, but included in the low medium density zone, as in the case of the Toowong house. Those sections were compelling provisions in favour of a conclusion that PO5(a) and Assessment Officer (AO) 5(c) of the Demolition Code were satisfied. The primary judge found that a consideration of the terms of the overall outcome contained in s 8.2.21.1(2)(e) of the Demolition Code, supported a conclusion that the policy involved a deliberate decision to exclude a specific class of building form, from the protection afforded by the application of the traditional building character overlay and the Demolition Code. As the application to demolish the house complied with PO5(a) and AO5(c) of the Demolition Code in force at the date the application was properly made, that application complied with the Code as a whole. The respondent had established the development complied with the assessment benchmarks in force at the date the application was properly made. As to the second issue, the primary judge found that as the development complied with the assessment benchmarks in force at the time the application was properly made, s 60(2)(a) of the Planning Act was engaged, with the consequence that the application must be approved. In so holding, the primary judge rejected a submission by the Council that the decision making process involved the assessment manager carrying out an assessment of the development application against the amended City Plan 2014 and the amended Demolition Code. Section 60(2)(a) did not require an assessment to be carried out for compliance of the development application in respect of amended or replaced assessment benchmarks.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brisbane City Council v Klinkert [2019] QCA 40
PARTIES:	BRISBANE CITY COUNCIL (applicant) v STEPHEN KLINKERT (respondent)
FILE NO/S:	Appeal No 7886 of 2018 DC No 3458 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Planning and Environment Court Act
ORIGINATING COURT:	Planning and Environment Court – [2018] QPEC 30
DELIVERED ON:	12 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2018
JUDGES:	Gotterson and Philippides JJA and Boddice J
ORDERS:	1. Leave to appeal be granted. 2. The appeal be dismissed. 3. That the applicant pay the respondent’s costs of the application for leave and the appeal, to be assessed on the standard basis.
CATCHWORDS:	ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – MATTERS FOR CONSIDERATION – ON APPLICATIONS FOR DEMOLITIONS – where the Council refused building work, namely the demolition of a house – where the house was an inter-war house – where the house was said to be a strong contributor to the character of the street – where the house was subject to the City Plan 2014 – where the issues turned on statutory interpretation – whether the development complied with the Demolition Code, effective on 19 May 2017 – whether, if the development complied with the May 2017 Code, s 60(2)(a) of the PlanningAct mandated approval of that application – whether and what weight was to be given to the amended Demolition Code Planning Act 2016 (Qld), s 43, s 45, s 59, s 60 Planning and Environment Court Act 2016 (Qld), s 63
COUNSEL:	B D Job QC for the applicant D R Gore QC, with J Lyons, for the respondent
SOLICITORS:	Brisbane City Council for the applicant Broadley Rees Hogan for the respondent