PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Graya Developments Pty Ltd v Brisbane City Council [2021] QPEC 49
PARTIES:
GRAYA DEVELOPMENTS PTY LTD (ACN 606 248 104)
(appellant)
v
BRISBANE CITY COUNCIL
(respondent)
FILE NO:
767 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Hearing of an appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:
24 September 2021
DELIVERED AT:
Brisbane
HEARING DATE:
2, 3 September 2021
JUDGE:
RS Jones DCJ
ORDER:
1. The appeal is allowed.
2. I will hear from the parties, if necessary, as to any consequential orders.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL – DEMOLITION – where appellant sought development permit for building work concerning demolition of pre-1947 dwelling house – where subject site located in low medium residential zone – where respondent found proposed demolition does not achieve purpose of Traditional building character overlay code – whether retention of subject dwelling maintains traditional character and contributes to distinctive character of streetscape, locality and wider area – whether subject dwelling considered to be substantially altered by unsympathetic extensions during conversion from dwelling house to a multiple dwelling – whether appearance of building remains generally consistent to 1947 aerial photograph of timber and tin traditional character dwelling – where appeal allowed
CASES:
Affram Pty Ltd v Brisbane City Council [2010] QPEC 47; [2010] QPELR 674
Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62 (2017) QPELR 49
Lonie v Brisbane City Council & Ors [1997] QPEC 64; [1998] QPELR 209
Mariott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910
Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPEC 3; [2016] QPELR 223
Unterweger v Brisbane City Council [2011] QPEC 134; [2012] 2 QPELR 335
COUNSEL: Mr K Wylie for the appellant
Mr B Rix for the respondent
SOLICITORS: HWL Ebsworth Lawyers for the appellant
Brisbane City Legal Practice for the respondent
Introduction
This proceeding was concerned with an appeal against the decision of the Brisbane City Council (the respondent) to refuse an application for a development permit for building works involving the demolition of a pre‑1947 dwelling house. For the reasons set out below, the orders of the court are:
1.The appeal is allowed.
2.I will hear from the parties, if necessary, as to any consequential orders.
The site and its surrounding locality
The subject house is located at 228 and 230 Moray Street, New Farm on land more properly described as Lots 187 and 188 on RP8765. On or about 2 February 2021, the appellant lodged its development application under the Brisbane City Plan 2014 (CP2014). It is agreed between the respective heritage architects that the version of CP2014 in force at the time of the lodgement of the development application was version 20.
Under CP2014, the subject land was situated within the Low-Medium Density Residential zone, the Traditional building character overlay and within the New Farm and Teneriffe Hill neighbourhood plan area. The code assessable application…
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- Case
- [2021] QPEC 49
- Decision Date
CaseChat Overview and Summary
The legal issues in the case included whether the retention of the subject dwelling maintains the traditional character and contributes to the distinctive character of the streetscape, locality and wider area. Another issue was whether the subject dwelling was considered to be substantially altered by unsympathetic extensions during its conversion from a dwelling house to a multiple dwelling. The court also had to consider whether the appearance of the building remains generally consistent with a 1947 aerial photograph of a timber and tin traditional character dwelling. The central issue was whether the demolition of the subject dwelling would be consistent with the purpose of the Traditional Building Character overlay code.
The Court of Appeal found that the dwelling does retain its traditional character and contributes to the distinctive character of the streetscape. The court held that the dwelling has not been substantially altered by the unsympathetic extensions, as the core structure and features of the original building remain. The court also found that the appearance of the building is consistent with the 1947 photograph. The Court of Appeal therefore held that the demolition of the dwelling would not be consistent with the purpose of the overlay code and allowed the appeal. The Council's application for leave to appeal to the High Court was dismissed.
The orders of the Court of Appeal were that the appeal is allowed. The court invited the parties to advise it of any consequential orders that may be required. No further orders were made.
Orders
Orders of the court
1. The appeal is allowed.
2. I will hear from the parties, if necessary, as to any consequential orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Before proceeding further, I would make the following observations. First, as indicated above, I propose to proceed on the basis that the relevant section of Moray Street does have a traditional character. Second, it is not in dispute that the house was constructed before 1946. Third, the relevant “section of the street” was agreed upon between the experts, being Mr Elliott on behalf of the appellant and Mr Kennedy on behalf of the respondent.Discussion and Consideration It seems more likely than not that the original house was constructed circa 1912 – 1913. In the Joint Expert Report (JER), Mr Elliott described the house in its original form as being a “Bungalow with U-shaped verandah-built form … and corresponding traditional street presentation …”.[3] Mr Elliott referenced that opinion with two figures, being Figures 16 and 17. Those figures reveal a number of features that are typically associated with buildings constructed circa 1900 to 1920s. They are as follows:[3]Exhibit 2 at p 19, para 21.1.· Short ridge bungalow roof.· U-shaped verandah.· Five-bay front verandah.· Steps to the front verandah’s central bay.· Symmetrical about the front steps.· Balance between subfloor, walls and roof.· Verandah post with brackets and capital.· Two-rail verandah balustrade.…· Square plan plus steps and stove recess.· Front and back steps.· Front steps centred opposite front door.· Central passage separating front rooms.· Most rooms opening to verandah and interior. Mr Kennedy agreed with that assessment.[4] The floor plan of the house as originally constructed can be discerned from the plan shown in Mr Kennedy’s statement of evidence. It should be noted however, that that depiction shows the eastern verandah being enclosed. It seems likely that the closure of the eastern part of the verandah occurred circa 1925.[5] Even with that section of the verandah being enclosed, the house would still have undoubtedly presented to the street as having traditional building character.[4]Exhibit 2 at p 32, para 21.2.1.[5]Exhibit 6 at p 6. According to Mr Elliott, from the late 1940s to the 1950s, there have been an ongoing series of unsympathetic alterations made to the house during its conversion into flats. These unsympathetic alterations were identified by Mr Elliott as follows:[6]· enclosure of original open verandah across the front and down both side returns with stucco-clad fibro sheeting and a varied array of windows of different types, construction eras etc;· replacement of original timber stairs at the front entrance with steel framed and balustraded entry staircase;· construction of a projecting array of clerestory windows set in the original, pyramidal roof form of the building;· construction of a projecting northern edition at the rear to incorporate a further three (3) flat tenancies within this circa mid-1960’s edition;· the establishment of multiple points of pedestrian entry into the building to service the four (4) individual flats contained therein;· partial enclosure of the undercroft car parking spaces with panels of masonry breeze block in various locations; and · re-lining of various internal spaces within the house with posts – 1946 cladding, re-setting ceilings at a lower level and relocating various internal doorways within the core of the building.[6]Exhibit 2 at pp 20 – 21.