Hawke v Brisbane City Council

Link copied
Case Copied 18 min read

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 16

Brisbane 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

Wilhelm v Logan City Council [2020] QCA 273
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

  1. 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

  2. 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.

  3. 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:

CaseChat AU logo

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
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
[2021] QPEC 16
Decision Date

CaseChat Overview and Summary

Hawke sought to appeal the refusal by the Brisbane City Council of a development application concerning the demolition of a pre-1947 house. The refusal was based on the house's contribution to the traditional building character of that part of the street within the Traditional building character overlay. The primary legal issue before the court was whether the house in question contributed to the traditional building character of the street. The court needed to determine the relevance of the house to the street's traditional character and whether its demolition would have a detrimental effect on that character.

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

Clearly His Honour there is referring to the assessment of a development application requiring impact assessment. That said, in YQ Property Pty Ltd Henry J, unsurprisingly I would respectfully observe, made it clear that the broader planning discretion also applied to code assessable development.[4] That said of course the discretion must be exercised judicially and, as Judge Williamson QC said in Ashvan,[5] while the introduction of the Planning Act, coupled with the express deletion of a test of the type contemplated pursuant to s 326 of the Sustainable Planning Act, conferred a broad planning discretion, that did not mean the discretion admitted of an unbridled opportunity to approve or refuse development appeals.[4]Brisbane City Council v YQ Property Pty Ltd [2020] 48 QLR at [62].[5]Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793.The expert evidence Mr Elliot and Mr Kennedy agreed that for the purpose of the relevant evaluation of the Traditional building Character, the study area should be limited to that section of Flinders Parade bounded by Fourteenth Avenue to the south and Fifteenth Avenue to the north. Within that section of Flinders Parade, it is uncontroversial that four pre-1947 houses still remain.[6] There is also one house, the providence of which is uncertain however, insofar as it might contribute to the streetscape it is more consistent with a pre-1947 form of construction then the more modern recent residential development. [7] [6]At 464, 468, 478 and 486 Flinders Parade.[7]Situated at 472 – 474 Flinders Parade as shown in Exhibit 3, Figures 23 at p 21 and 33 at p 26. According to Mr Kennedy, that house visually strengthened the traditional character of this precinct.[8] That I am able to accept. However, despite Mr Rix’s valiant attempt to convince me otherwise, I am unable to accept that the house referred to as the house on “green posts” adds to or supports the traditional character of the street. That is so for two reasons. First, I accept Mr Elliot’s evidence to the effect that, notwithstanding some of its physical features, it did not present as being representative of traditional character. His opinion about that was not shaken by either the cross examination or the evidence of Mr Kennedy. The second reason is that the house was not one that was relied on by Mr Kennedy in his assessment of the character of this precinct. Had Mr Kennedy considered that house to be a relevant consideration, I am sure he would have referred to it in either the joint expert report (JER) or his court report.[8]Exhibit 2 at p 17, para 20.2. In or about late 2006/early 2007 and late 2009/early 2010, two pre-1947 houses were demolished. The one at 466 Flinders Parade was demolished because it had been substantially altered from its original form and it had been demonstrated that the house was structurally unsound and could not reasonably be capable of being made structurally sound.[9] The second was that located at 484 Flinders Parade where the house was described as having no traditional architectural features and was not considered to be a good example of traditional timber and tin design and construction.[10][9]See Exhibit 8.[10]See Exhibit 9.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.