Doolan v Brisbane City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Doolan v Brisbane City Council [2010] QPEC 130

PARTIES:

MATTHEW DOOLAN
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

712/10

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2010

JUDGE:

Searles DCJ

ORDER:

APPEAL DISMISSED

CATCHWORDS:

PLANNING AND ENVIRONMENT – DEMOLITION CODE – whether demolition will result in the loss of traditional building character.

PLANNING AND ENVIRONMENT – DEMOLITION CODE – whether building contributes positively to the visual character of the street.

COUNSEL:

M.J Doolan – Appellant

T. Trotter – Respondent

SOLICITORS:

Brisbane City Legal Practice – Respondent

Nature of the appeal

[1]      The appellant appeals the refusal by the Council of a Development Application to demolish a pre-1946 house constructed on Lots 3 and 4 on RP 29573, County of Stanley, Parish of Oxley, containing an area of 974 m² and situated at 32 Harrowby Street, Corinda (the house).  The land is situated within the Demolition Control Precinct within the City Plan. The appellant bears the onus of proof pursuant to s 4.1.50 (1) of the Integrated Planning Act (IPA)

Submitters

[2]      Two submitters, Ms Deborah Rich and Peter Usher lodged a thorough and thoughtful notice of objection dated 16 October 2009.[1]

[1] Exhibit 1, page 55.

Council’s grounds for refusal

[3]      The Council refused the application on two grounds:[2]

[2] Council Decision Notice Details - Exhibit 1, page 85.

“ (i)Non-compliance with Acceptable Solution A1.3 of the Demolition Code.

…

The demolition of the subject building will result in the loss of traditional building character within the Demolition Control Precinct;

(ii)Non-compliance with Performance Criteria P1 of the Demolition Code.

…

The subject building does represent ‘traditional building character’.

The subject building contributes positively to the visual character of the street.”

Appeal grounds

[4]      By Notice of Appeal filed 9 March 2010, Mr Doolan appealed the Council decision on two grounds:-

(a)        that the removal of the house would not result in the loss of traditional building character; and

(b)        the house does not contribute positively to the visual character of the street.

Issues for determination

[5]      The issues for determination then are:[3]

[3] Demolition Code Performance Criteria P1; City Plan Chapter 5, page 70 – Exhibit 1 page 206.

(a)        whether the house represents traditional building character; and if so

(b)        whether the house contributes positively to the visual character of the street.

[6]      If it is found that the house does not represent traditional building character within (a), the appeal will succeed without the necessity of consideration of (b).

Applicable law

[7]      By virtue of the operation of s 819(5)(a) and (6) of the Sustainable Planning Act 2009 (SPA) the appeal must be heard and decided under the repealed IPA the relevant provision of which is s 3.5.13 which provides:-

“3.5.13  Decision if application requires code assessment

(1)        This section applies to any part of the application requiring   code…