Greek Orthodox Community of St George Brisbane v Brisbane City Council

[2012] QPEC 59

[2012] QPEC 59

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 4018 of 2010

GREEK ORTHODOX COMMUNITY OF ST GEORGE BRISBANE	Appellant
and
BRISBANE CITY COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 28/09/2012

ORDER

CATCHWORDS

Developer appeal against Council's refusal to permit demolition of a heritage listed building - building deteriorating dramatically - Council attributes this to the appellant - at directions hearing, parties offer contending timetables - Council would preserve November 2012 hearing, appellant's defer hearing to February 2013 at earliest - Council's timetable favoured - against Council's submission that a separate application should be made to vary existing directions about experts, appellant permitted to bring in a quantity surveyor, but not so as to delay hearing
HIS HONOUR:  There'll be an order in terms of the draft proposed by Ms Mitchell with the addition of three further paragraphs.

7.  The appellant have leave notwithstanding paragraph 5 of the order of 6 June 2012 to bring in an expert in the field of quantity surveying provided that nothing arising therefrom is to be presented by the appellant as a justification for delaying the hearing of the appeal.

8.  The mention already ordered for 17 October 2012 is confirmed.

9.  Liberty to apply.

The appeal has been brought on for mention today by the Council on the basis that it is important to ensure that, notwithstanding “slippage” as it's called in this jurisdiction, in respect of compliance with directions in the order of the 6th of June 2012, it's important to get the appeal heard on the scheduled four dates to be allocated more precisely at the callover for the November sittings in circumstances where the Council is apprehensive that the heritage building, the subject of the appeal, appears to be losing components. 

The Council's suspicion, set out in an enforcement notice recently issued, is that this is occurring as a result of deliberate actions for which the appellant is responsible. 

Ms Kefford, representing the appellant denies that anything of that kind is occurring, her client’s instructions being that the building which certainly appears extraordinarily dilapidated so far as the rear view shown in photographs exhibited Ms Mitchell's affidavit is concerned, is falling down, indeed, coming apart where vegetation is sought to be pulled off it, etc.  It's not possible to resolve questions of possible blame this morning.

The Council's application today for new directions to get the matter on track for a November hearing is met by Ms Kefford's proposal for rather different directions which abandon the possibility of a November hearing although that's been in contemplation since the court's order of the 6th of June 2012.

Unfortunately, such abandonment, it seems, means no hearing before February next year.  Rightly or wrongly, the Council appears apprehensive about what might happen to the building in the interim.

The cogency of such concerns may be open to argument given that it's not clear that the Council could do much to prevent the building falling down of its own accord as time elapses.  It is heritage listed under arrangements which Ms Kefford indicates her client is anxious to investigate in a process which may require - or is requiring - disclosure by the Council.

Whether or not it's realistic or practicable, I think the court ought to exercise a certain vigilance in seeking to preserve designated heritage of the city and not lightly accede to endorsing arrangements which will, inevitably, mean a loss of three months.

Ms Mitchell complains that the appellant doesn't have the entitlement which it appears to assume, to engage a quantity surveyor.  It's certain that the appellant hasn't done what it ought to have under the order of 6th of June to nominate such an expert by a date last month.  It is accepted that the quantity surveyor will provide evidence of the costs of rendering the building sound and the like.

In an appeal such as the present which is against the Council's refusal of a development application seeking demolition, the potential importance of such evidence is obvious.  I can't see any point in adopting Ms Mitchell's approach that there ought to be a specific application by the appellant supported by material to bring in a new expert.  It's efficient to do that now but on the basis that I've formulated.

The appellant will have another opportunity to seek a more leisurely timetable with the regrettable implications adverted to above at the already scheduled mention of the matter on the 17th of October.  Ordinarily, I would be receptive to an application by an appellant developer for an adjournment but, as indicated, the circumstances here are quite special.

Order as per initialled draft.

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