Cheng v Brisbane City Council - [2023] QPEC 49

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Cheng v Brisbane City Council [2023] QPEC 49

PARTIES:

TIANJIA CHENG

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

2077 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

21 November 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2023, 21 November 2023

JUDGE:

Kefford DCJ

ORDER:

I ORDER:

(A) THE APPEAL IS DISMISSED; AND

(B) THE COUNCIL’S DECISION IS CONFIRMED.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL BUILDING CHARACTER – where there are only three pre-1947 houses in the relevant part of the street – where two of those houses have been modified – whether the subject land is in a section of the street within the Traditional building character overlay that has no traditional character – whether the proposed demolition complies with the Traditional building character (demolition) overlay code

LEGISLATION:

Planning and Environment Act 2016 (Qld), ss 43, 45, 59, 60

Planning and Environment Court Act 2016 (Qld), ss 43, 46, 47

CASES:

Bilalis v Brisbane City Council [2017] QPEC 42; [2017] QPELR 997, approved

Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, approved

Leach & Ors v Brisbane City Council [2011] QPEC 55, [2011] QPELR 609, distinguished

Marriott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910, approved

COUNSEL:

B Rix for the Appellant
L Walker for the Respondent

SOLICITORS:

Keypoint Law for the Appellant
City Legal for the Respondent

TABLE OF CONTENTS

Introduction

What is the applicable decision framework?

What are the issues to be determined?

What do the applicable assessment benchmarks require?

What are the general principles about the assessment of traditional character and traditional building character that can be distilled from earlier cases?

What is the character of the subject house?

What are the characteristics of Orleigh Street and the built form within it?

Does the relevant section of Orleigh Street have traditional character?

Conclusion

Introduction

This is an appeal against the decision of the respondent, Brisbane City Council (“the Council”) refusing the Tianjia Cheng’s development application to facilitate the full demolition of a pre-1947 residential building (“the subject house”) at 33-35 Orleigh Street, West End (“the subject land”). The subject land has an area of approximately 596 square metres. It is situated opposite Orleigh Park, which runs along the bank of the Brisbane River.
Ms Cheng lodged her development application to demolish the residential building on the subject site on 5 April 2023 under Brisbane City Plan 2014 (“City Plan”). On 14 July 2023, the Council refused the development application. On 20 July 2023, Ms Cheng filed her notice of appeal.
What is the applicable decision framework?
The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies.
The appeal proceeds, generally, by way of hearing anew.[1] It is for Ms Cheng to establish…

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: [2023] QPEC 49
Decision Date: 21 November 2023 (ex tempore)

CaseChat Overview and Summary

In the matter of Cheng v Brisbane City Council, Ms Cheng lodged an appeal against the Brisbane City Council’s decision to refuse her development application to demolish the residential building on her property. The Council had rejected the application on 14 July 2023, citing compliance with the Traditional building character (demolition) overlay code, which governs demolitions in areas with traditional building character. Ms Cheng filed her notice of appeal on 20 July 2023.

The central issue before the court was whether the proposed demolition complied with the relevant planning code, specifically whether the subject land was in a section of the street within the Traditional building character overlay that has no traditional character. This involved determining whether the property was located in a street section with traditional building character, given that only three pre-1947 houses existed in the relevant part of the street and two of those had been modified. The court was required to assess whether the demolition complied with the Traditional building character (demolition) overlay code, and if not, whether the non-compliance could be addressed by imposing development conditions.

The court assessed the development application against the applicable assessment benchmarks in the Brisbane City Plan 2014, specifically version 26, as it was in effect when the application was made. The court found that the property was in a street section with traditional building character, and therefore the proposed demolition did not comply with the Traditional building character (demolition) overlay code. However, the court determined that the non-compliance could not be resolved by imposing development conditions. Consequently, the appeal was dismissed, and the Council’s decision was confirmed.

Orders

Orders of the court

I ORDER:

(A) THE APPEAL IS DISMISSED; AND

(B) THE COUNCIL’S DECISION IS CONFIRMED.

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

Ms Cheng lodged her development application to demolish the residential building on the subject site on 5 April 2023 under Brisbane City Plan 2014 (“City Plan”). On 14 July 2023, the Council refused the development application. On 20 July 2023, Ms Cheng filed her notice of appeal. What is the applicable decision framework? The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies. The appeal proceeds, generally, by way of hearing anew.[1] It is for Ms Cheng to establish that the appeal should be allowed.[2] [1]Planning and Environment Court Act 2016 s 43, subject to ss 46(2) and (5) of the Planning and Environment Court Act 2016.[2]Planning and Environment Court Act 2016 s 45. The development application required code assessment. As such, the Court’s assessment of the development application must be carried out only:(a)against the applicable assessment benchmarks in a categorising instrument; and(b)having regard to any matters prescribed by regulation.[3][3]Planning Act 2016 (Qld) s 45(3). The only applicable assessment benchmarks that the parties have put in issue in this case are in City Plan, which is a categorising instrument.[4] The assessment must be carried out against the instrument in effect when the development application was properly made.[5] In this instance, version 26 of City Plan was in effect at the relevant time.[4]Planning Act 2016 s 43(3)(a).[5]Planning and Environment Court Act 2016 s 46, Planning Act 2016 s 45(7). There are no matters prescribed by regulation that the parties rely on in this appeal. In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions that the Court considers appropriate.[6] The decision must be based on the assessment.[7] [6]Planning and Environment Court Act 2016 s 47.[7]Planning Act 2016 s 59(3). The Court must approve the development application to the extent it complies with all the assessment benchmarks.[8] To the extent that the proposed development does not comply with all or some of the assessment benchmarks, the Court may decide to refuse the development application only if compliance cannot be achieved by the imposition of development conditions.[9] Even if the development does not comply with some of the assessment benchmarks, the Court may decide to approve the application.[10] [8]Planning Act 2016 s 60(2)(a).[9]Planning Act 2016 s 60(2)(d).[10]Planning Act 2016 s 60(2)(b). The question of whether departure from an assessment benchmark warrants refusal is a separate and distinct question. I respectfully agree with the observations of His Honour Judge Williamson QC in Klinkert v Brisbane City Council.[11] [11][2018] QPEC 30; [2018] QPELR 941, 957 [102]. Leave to appeal was granted by the Court of Appeal but the appeal was dismissed in Brisbane City Council v Klinkert [2019] QCA 40; (2019) 236 LGERA 88.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cheng v Brisbane City Council [2023] QPEC 49
PARTIES:	TIANJIA CHENG (Appellant) v BRISBANE CITY COUNCIL (Respondent)
FILE NO/S:	2077 of 2023
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	21 November 2023 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2023, 21 November 2023
JUDGE:	Kefford DCJ
ORDER:	I ORDER: (A) THE APPEAL IS DISMISSED; AND (B) THE COUNCIL’S DECISION IS CONFIRMED.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL BUILDING CHARACTER – where there are only three pre-1947 houses in the relevant part of the street – where two of those houses have been modified – whether the subject land is in a section of the street within the Traditional building character overlay that has no traditional character – whether the proposed demolition complies with the Traditional building character (demolition) overlay code
LEGISLATION:	Planning and Environment Act 2016 (Qld), ss 43, 45, 59, 60 Planning and Environment Court Act 2016 (Qld), ss 43, 46, 47
CASES:	Bilalis v Brisbane City Council [2017] QPEC 42; [2017] QPELR 997, approved Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, approved Leach & Ors v Brisbane City Council [2011] QPEC 55, [2011] QPELR 609, distinguished Marriott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910, approved
COUNSEL:	B Rix for the Appellant L Walker for the Respondent
SOLICITORS:	Keypoint Law for the Appellant City Legal for the Respondent