Hearne v Brisbane City Council - [2010] QPEC 16

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hearne v Brisbane City Council [2010] QPEC 16

PARTIES:

BRIAN WAYNE HEARNE
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

1323/2009

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

9 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 & 25 February 2010

JUDGE:

Searles DCJ

ORDER:

APPEAL ALLOWED

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST DEEMED REFUSAL – DEMOLITION CODE - whether the appellant’s property has traditional building character.

Integrated Planning Act 1997 (repealed)

Sustainable Planning Act 2009

Armstrong v Brisbane City Council [2003] QPELR 475
Berlese v Brisbane City Council [2003]QPELR 330
Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2008] QPELR 147
Litbit Pty Ltd. v Brisbane City Council [2008] QPELR 74
Lonie v Brisbane City Council [1998] QPELR 201
Raiza Development Pty Ltd v Brisbane City Council [2005] QPELR 205

COUNSEL:

S. Ure – Appellant

B. Job – Respondent

SOLICITORS:

McInnes Wilson Lawyers – Appellant

Brisbane City Legal Practice – Respondent

Nature of the appeal

[1] The appellant appeals the deemed refusal by the Council of a Development Application for a Material Change of Use, namely to demolish a pre-1946 house constructed on Lot 653 on Crown Plan SL 6059 County of Stanley, Parish of Bulimba, containing an area of 1,100 m²and situated at 17 Bodalla Street, Norman Park (the property). The land is situated within the Demolition Control Precinct and allocated to the Character Residential Area within the City Plan. The appellant bears the onus of proof pursuant to s 4.1.50 (1) of IPA.

Site description and position

[2] Bodalla Street is L-shaped running roughly in a westerly direction from its intersection with Norman Crescent with the base line of the L running north to Wynnum Road. Access from either direction on Wynnum Road can be gained via Norman Cr. with a right hand turn into Bodalla Street or, if heading city-bound along Wynnum Road, by turning left into Bodalla Street. The street is in the nature of a cul-de-sac and presents as quiet secluded area with an abundance of natural vegetation providing privacy to its residents.

[3] The property is situated on the western side of Bodalla Street and, in effect, sits in the handle of a shanghai configuration with each section of Bodalla Street constituting the left forks of the shanghai. There is a ridge running across the eastern leg of Bodalla Street near Nos. 32 and 35 so the property cannot be seen from the Bodalla roadway on the eastern or Norman Crescent end of the street until one reaches the top of that ridge. Proceeding from the ridge towards the property it becomes visible from the roadway at or near No. 27 Bodalla Street[1].
[1]Report – M Elliott, Exhibit 8, Figure 31

Statutory context

[4] The operation of s 819(2) of the Sustainable Planning Act 2009 requires this appeal to be heard and determined pursuant to the provisions of the repealed Integrated Planning Act 1997 (

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.

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Details

Case: [2010] QPEC 16
Decision Date: 9 March 2010

CaseChat Overview and Summary

The appeal, brought by Hearne against Brisbane City Council, involved the interpretation of the Demolition Code in relation to a deemed refusal of a development application. The central issue was whether Hearne's property possessed traditional building character as defined by the code, which would exempt it from certain demolition regulations. The Brisbane City Council argued that the property did not meet the criteria for traditional character and thus should be subject to the demolition requirements. The dispute was brought before the Queensland Land Court.

The key legal issue before the court was the interpretation of "traditional building character" as outlined in the Demolition Code. Specifically, the court needed to determine whether Hearne's property exhibited the characteristics that would exempt it from the deemed refusal provisions. The court examined the evidence and arguments presented by both parties to ascertain whether the property had traditional building character, which would invoke a different set of regulatory standards. The court's decision hinged on a nuanced understanding of the code's provisions and the specific attributes of the property in question.

The Queensland Land Court concluded that Hearne's property did indeed exhibit traditional building character. The court found that the property possessed significant historical and architectural value, aligning with the criteria set out in the Demolition Code. Consequently, the court deemed the Brisbane City Council's refusal to be invalid under the code. The court's reasoning was based on a detailed analysis of the property's attributes and the applicable legal standards. As a result, the appeal was allowed, and the Brisbane City Council's decision was overturned.

Orders

Orders of the court

APPEAL ALLOWED

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:	Hearne v Brisbane City Council [2010] QPEC 16
PARTIES:	BRIAN WAYNE HEARNE (Appellant) v BRISBANE CITY COUNCIL (Respondent)
FILE NO/S:	1323/2009
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	9 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 & 25 February 2010
JUDGE:	Searles DCJ
ORDER:	APPEAL ALLOWED
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL AGAINST DEEMED REFUSAL – DEMOLITION CODE - whether the appellant’s property has traditional building character. Integrated Planning Act 1997 (repealed) Sustainable Planning Act 2009 Armstrong v Brisbane City Council [2003] QPELR 475 Berlese v Brisbane City Council [2003]QPELR 330 Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2008] QPELR 147 Litbit Pty Ltd. v Brisbane City Council [2008] QPELR 74 Lonie v Brisbane City Council [1998] QPELR 201 Raiza Development Pty Ltd v Brisbane City Council [2005] QPELR 205
COUNSEL:	S. Ure – Appellant B. Job – Respondent
SOLICITORS:	McInnes Wilson Lawyers – Appellant Brisbane City Legal Practice – Respondent