Ficca v Brisbane City Council - [2022] QPEC 52

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ficca & ors v Brisbane City Council [2022] QPEC 52

PARTIES:

MASSIMO FICCA, GIULIA FICCA and MAFIC INVESTMENTS PTY LTD ACN: 108 935 244
(Applicants)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO

936/2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

8 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22-23 August 2022. Final written submissions - 1 September 2022.

JUDGE:

Muir DCJ

ORDER:

1. The Appeal is allowed.

2. I will hear further from the parties, if necessary, as to the appropriate form of order or any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL – DEMOLITION – where appellants sought a development permit for the demolition of a pre-1947 dwelling house – where the development application was refused by the respondent Council – where the respondent argued the subject dwelling represents traditional building character – where the development application is to be assessed against the Traditional building character (demolition) overlay code under City Plan 2014 – whether the house has the appearance of being constructed in 1946 or earlier – whether demolition would result in loss of traditional building character – whether the demolition of the house will result in any meaningful or significant loss of traditional building character – whether house individually, or collectively contributes to giving the areas in the Traditional building character overlay their traditional character and traditional building character

CASES:

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
Hamilton v Brisbane City Council [2016] QPELR 592
Kanesamoorthy & Anor v Brisbane City Council [2016] QPELR 784
Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62
Klinkert v Brisbane City Council [2018] QPELR 941
Law v Brisbane City Council [2021] QPEC 065
Lonie v Brisbane City Council [1998] QPELR 209
Marriott v Brisbane City Council [2015] QPELR 910
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
SeAyr v Brisbane City Council [2016] QPELR 223
Taylor & Anor v Brisbane City Council [2020] QPELR 1080
Traspunt No. 14 Pty Ltd v Morton Bay Regional Council & Anor [2021] QPEC 4
Williams v Brisbane City Council [2022] QPELR 580

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) ss. 43, 45(1)(a), 46(2)
Planning Act2016 (Qld) s. 45(3), 59(3)

COUNSEL:

H. M Stephanos for the Appellants

J Bowness for the Respondent

SOLICITORS:

Keypoint Law for the Appellants

City Legal for the Respondent

Overview

This is an appeal by Massimo Ficca, Giulia Ficca and Mafic Investments Pty Ltd ACN: 108 935 244 (the appellants) against a decision by the Brisbane City Council refusing its code assessable development application lodged on 21 January 2022 to demolish (in its entirety), a pre-1947 dwelling house located on land at 56-58 MacDonald Street, Norman Park.
The appeal was commenced on 26 April 2022 (after a decision notice refusing the development application was served upon the appellants on 22 March 2022 ) and falls to…

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.

Keep reading for free

Create a free CaseChat account to read Ficca v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QPEC 52
Decision Date: 8 December 2022

CaseChat Overview and Summary

In Ficca v Brisbane City Council, the appellants sought a development permit to demolish a pre-1947 dwelling house located in an area covered by the Traditional building character (demolition) overlay code under City Plan 2014. The Brisbane City Council, as the respondent, refused the development application, asserting that the subject dwelling contributes to the area's traditional building character and that its demolition would result in a loss of this character. The matter was brought before the court to determine the validity of the respondent's refusal.

The primary legal issues the court needed to decide were whether the house had the appearance of being constructed in 1946 or earlier, whether its demolition would result in a significant loss of traditional building character, and whether the house individually, or collectively with other structures, contributes to the area's traditional character. The court examined the evidence and submissions from both parties to ascertain the house's historical significance and its contribution to the area's character.

The court found that the house did not have the appearance of being constructed in 1946 or earlier and that its demolition would not result in any meaningful or significant loss of traditional building character. The court also determined that the house did not individually, or collectively, contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character. Consequently, the court allowed the appeal and ordered further submissions from the parties regarding the appropriate form of order or any consequential orders.

Orders

Orders of the court

1. The Appeal is allowed.

2. I will hear further from the parties, if necessary, as to the appropriate form of order or any consequential orders.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ficca & ors v Brisbane City Council [2022] QPEC 52
PARTIES:	MASSIMO FICCA, GIULIA FICCA and MAFIC INVESTMENTS PTY LTD ACN: 108 935 244 (Applicants) v BRISBANE CITY COUNCIL (Respondent)
FILE NO	936/2022
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	8 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	22-23 August 2022. Final written submissions - 1 September 2022.
JUDGE:	Muir DCJ
ORDER:	1. The Appeal is allowed. 2. I will hear further from the parties, if necessary, as to the appropriate form of order or any consequential orders.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL – DEMOLITION – where appellants sought a development permit for the demolition of a pre-1947 dwelling house – where the development application was refused by the respondent Council – where the respondent argued the subject dwelling represents traditional building character – where the development application is to be assessed against the Traditional building character (demolition) overlay code under City Plan 2014 – whether the house has the appearance of being constructed in 1946 or earlier – whether demolition would result in loss of traditional building character – whether the demolition of the house will result in any meaningful or significant loss of traditional building character – whether house individually, or collectively contributes to giving the areas in the Traditional building character overlay their traditional character and traditional building character
CASES:	Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 Hamilton v Brisbane City Council [2016] QPELR 592 Kanesamoorthy & Anor v Brisbane City Council [2016] QPELR 784 Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62 Klinkert v Brisbane City Council [2018] QPELR 941 Law v Brisbane City Council [2021] QPEC 065 Lonie v Brisbane City Council [1998] QPELR 209 Marriott v Brisbane City Council [2015] QPELR 910 Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328 SeAyr v Brisbane City Council [2016] QPELR 223 Taylor & Anor v Brisbane City Council [2020] QPELR 1080 Traspunt No. 14 Pty Ltd v Morton Bay Regional Council & Anor [2021] QPEC 4 Williams v Brisbane City Council [2022] QPELR 580
LEGISLATION:	Planning and Environment Court Act 2016 (Qld) ss. 43, 45(1)(a), 46(2) Planning Act2016 (Qld) s. 45(3), 59(3)
COUNSEL:	H. M Stephanos for the Appellants J Bowness for the Respondent
SOLICITORS:	Keypoint Law for the Appellants City Legal for the Respondent