Hurst v Brisbane City Council - [2020] QPEC 24

PLANNING AND ENVIRONMENT OF QUEENSLAND

CITATION: Hurst v Brisbane City Council [2020] QPEC 24

PARTIES:
WARREN HURST & PAULA HURST

(Appellants) and

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S: 3254 of 2018

DIVISION: Planning and Environment

PROCEEDING: Hearing of an appeal

ORIGINATING COURT:
Planning and Environment Court at Brisbane

DELIVERED ON: 21 May 2020

DELIVERED AT: Brisbane

HEARING DATES: 11 and 12 May 2020

JUDGE: RS Jones DCJ

ORDER:
1. The appeal is dismissed

2. I will hear further from the parties if necessary as to any consequential orders

CATCHWORDS:
FACTS IN DISPUTE – whether as a matter of fact the dwelling located on the land was a pre-1911 building for the purposes of the Brisbane City Plan 2014 – if as a matter of fact the subject dwelling is then the appeal ought be dismissed and, if not, the appeal ought be allowed.

ONUS OF PROOF – which party bore the onus of proof – whether the Brisbane City Council bore the onus of establishing that the dwelling was a pre-1911 building – whether appellants bore the onus of proving that it was not.

CIRCUMSTANTIAL EVIDENCE – whether circumstantial evidence regarding building materials and time of construction raises a more probable inference that the subject dwelling was a pre-1911 building

LEGISLATION:
Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES:
Affram Pty Ltd v Brisbane City Council [2010] QPELR 674

Belhaven and Stenton Peerage (1875) 1 App Cas 278 Bell v Brisbane City Council and Another [2018] QCA 84 Currie v Dempsey (1967) 2 NSWR 532

Kocis v SE Dickens Pty Ltd [1998] 3 VR 408

Luxton v Vines (2000) 49 NSWLR 262

Selstram Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247

Strong v Woolworths Pty Ltd (2012) 246 CLR 182

White v Johnston (2015) 87 NSWLR 779

COUNSEL:
Mr K Wylie for the Appellants

Mr N Loos for the Brisbane City Council

SOLICITORS:
John Nagle & Co for the Appellants

Brisbane City Legal for the Respondent

For the reasons set out below the orders of the court are:

1.The appeal is dismissed.

2.I will hear further from the parties if necessary as to any consequential orders.

Introduction

The subject land is located at 425 The Esplanade (Lot 331) in the bayside suburb of Manly. The area of the land is approximately 503m² and located thereon is a modest single residential dwelling. On or about 29 June 2018, the appellants lodged a development application for the demolition of the dwelling, with the Brisbane City Council (“the council”). By letter dated 10 August 2018, the council issued a Decision Notice pursuant to s 63 of the Planning Act 2016 (Qld), notifying the appellants that their application had been refused.
In total there were 12 grounds for refusal. The first five of those grounds were, generally speaking, concerned with the application intending the demolition of a pre-

1911 building which was, according to…

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: [2020] QPEC 24
Decision Date: 21 May 2020

CaseChat Overview and Summary

Hurst v Brisbane City Council involved a dispute between the appellants, the owners of a dwelling, and the Brisbane City Council regarding whether the dwelling constituted a pre-1911 building under the Brisbane City Plan 2014. The primary issue before the court was determining whether the dwelling was indeed a pre-1911 building and, consequently, if the appeal should be dismissed or allowed. The court was also tasked with resolving the question of which party bore the onus of proof in establishing whether the dwelling was a pre-1911 building and interpreting the significance of circumstantial evidence, such as building materials and the time of construction, in making this determination.

The court analysed the evidence presented by both parties, considering the circumstances surrounding the dwelling's construction and the materials used. It examined the onus of proof, determining whether the Brisbane City Council needed to establish the dwelling's pre-1911 status or if the appellants had to prove it was not. The court weighed the circumstantial evidence, such as the building materials and the approximate time of construction, to assess whether they pointed more convincingly towards the dwelling being a pre-1911 building.

In its reasoning, the court concluded that the circumstantial evidence was insufficient to infer that the dwelling was a pre-1911 building with the requisite certainty. The court held that the appellants did not bear the onus of disproving the dwelling's pre-1911 status; instead, it was the Brisbane City Council's responsibility to establish this fact convincingly. Based on this analysis, the court dismissed the appeal. The court also noted that it would consider any further submissions from the parties if necessary to determine any consequential orders.

Orders

Orders of the court

1. The appeal is dismissed

2. I will hear further 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

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:	Hurst v Brisbane City Council [2020] QPEC 24
PARTIES:	WARREN HURST & PAULA HURST (Appellants) and BRISBANE CITY COUNCIL (Respondent)
FILE NO/S:	3254 of 2018
DIVISION:	Planning and Environment
PROCEEDING:	Hearing of an appeal
ORIGINATING COURT:	Planning and Environment Court at Brisbane
DELIVERED ON:	21 May 2020
DELIVERED AT:	Brisbane
HEARING DATES:	11 and 12 May 2020
JUDGE:	RS Jones DCJ
ORDER:	1. The appeal is dismissed 2. I will hear further from the parties if necessary as to any consequential orders
CATCHWORDS:	FACTS IN DISPUTE – whether as a matter of fact the dwelling located on the land was a pre-1911 building for the purposes of the Brisbane City Plan 2014 – if as a matter of fact the subject dwelling is then the appeal ought be dismissed and, if not, the appeal ought be allowed. ONUS OF PROOF – which party bore the onus of proof – whether the Brisbane City Council bore the onus of establishing that the dwelling was a pre-1911 building – whether appellants bore the onus of proving that it was not. CIRCUMSTANTIAL EVIDENCE – whether circumstantial evidence regarding building materials and time of construction raises a more probable inference that the subject dwelling was a pre-1911 building
LEGISLATION:	Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld)