PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Hawke v Brisbane City Council [2021] QPEC 16
PARTIES:
AARON HAWKE
(appellant)
v
BRISBANE CITY COUNCIL
(respondent)
FILE NO:
2196 of 2020
DIVISION:
Planning and Environment Court
PROCEEDING:
Hearing of an Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:
24 March 2021
DELIVERED AT:
Brisbane
HEARING DATE:
17 and 18 March 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 OF CODE ASSESSABLE DEVELOPMENT APPLICATION – where proposed development involved demolition of a pre-1947 house – where central issue was whether the subject house contributed to the traditional building character of that part of the street within the Traditional building character overlay
LEGISLATION:
Planning Act 2016 (Qld) s 45, 60
Planning and Environment Court Act 2016 (Qld) s 43
CASES:
Abeleda & Anor v Brisbane City Council & Anor [2020] 48 QLR 7; [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793; (2019) QPEC 16Brisbane City Council v YQ Property Pty Ltd [2020] 48 QLR; [2020] QCA 253
Leach & Ors v Brisbane City Council [2011] QPELR 609; [2011] QPEC 55
Lynch v Brisbane City Council [2011] QPELR 314; [2010] QPEC 137
Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45
Unterweger v Brisbane City Council [2012] QPELR 335; [2011] QPEC 134
COUNSEL: Mr K Wylie for the appellant
Mr B Rix for the respondent
SOLICITORS: Nicholsons solicitors for the appellant
Brisbane City Legal Practice for the respondent
Introduction
This proceeding was concerned with an appeal against the decision of the Council (the respondent) not to approve code assessable development for the demolition of a pre‑1947 house. For the reasons set out below, the orders of the court are:
1.The appeal is allowed.
2.I will heard from the parties, if necessary, as to any consequential orders.
The site and its surrounding locality
The subject house is located at 478 Flinders Parade, Brighton on land more properly described as Lot 58 on Registered Plan 13070. On or about 7 May 2020, under the Brisbane City Plan 2014 (CP2014), the appellant lodged his development application. 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 19-00/2019.
Under the CP2014, the subject land included within the Character residential (Character) zone was situated within the Traditional building character overlay and within the Sandgate district neighbourhood plan area. There was no dispute that the subject house was in fact a pre-1947 house for the purposes of all of the relevant provisions of CP2014. The heritage architects Mr Elliot, relied on by the appellant, and Mr Kennedy relied on by the respondent, agreed that in respect of the Sandgate district neighbourhood plan code, Part 7.2.19.1(3)(a) relevantly provided:
Keep reading for free
Create a free CaseChat account to read Hawke 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] QPEC 16
- Decision Date
CaseChat Overview and Summary
The court considered the expert evidence of Mr Elliot and Mr Kennedy, who agreed that the study area for the evaluation of the traditional building character should be limited to the section of Flinders Parade between Fourteenth Avenue and Fifteenth Avenue. They also agreed that four pre-1947 houses still remained within that section. However, the court was unable to accept the evidence of Mr Rix, who argued that the house on "green posts" added to or supported the traditional character of the street. The court accepted Mr Elliot's evidence that the house did not present as being representative of traditional character and that it was not one of the houses relied on by Mr Kennedy in his assessment of the character of the precinct. The court also noted that two pre-1947 houses had already been demolished, one because it had been substantially altered and was structurally unsound, and the other because it had no traditional architectural features.
The court concluded that the house in question did not contribute to the traditional building character of the street and allowed the appeal. The court will hear from the parties if necessary as to any consequential orders.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.