James Russell Architects v Brisbane City Council - [2016] QPEC 43

PLANNING AND ENVIRONMENT OF
COURT OF QUEENSLAND

CITATION:

James Russell Architects v Brisbane City Council & Anor [2016] QPEC 43

PARTIES:

JAMES RUSSELL ARCHITECTS PTY LTD

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

And

CHIEF EXECUTIVE, DEPARTMENT OF INFRASTRUCTURE, LOCAL GOVENRMENT AND PLANNING

(Co-Respondent)

FILE NO/S:

1669/2015

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment of Queensland

DELIVERED ON:

1 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2016, 10 June 2016

JUDGE:

Searles DCJ

ORDER:

1. Appeal dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – OBJECTIONS – where the Appellant made a development application for a material change of use and preliminary approval for building work (extension to heritage place) – where the development application was refused by the Respondent Council – where the development application was assessed against City Plan 2000 – where City Plan 2014 came into effect three days after lodgement of the development application – where the Court must determine what weight to be given to each of City Plan 2000 and City Plan 2014 – where the development application seeks approval for construction of a ‘pod’ structure – where the ‘pod’ structure sits atop an access core constructed from within the heritage place – whether the development application unacceptably impacts the cultural heritage value of the heritage place – whether the development application is consistent with the relevant planning scheme – whether sufficient grounds exist to warrant approval of the development application despite conflict with a relevant planning scheme

Brisbane City Plan 2000
Brisbane City Plan 2014
Sustainable Planning Act 2009 (Qld) ss 246, 289, 313, 314, 324, 325, 326, 493(1), 495.

Queensland Heritage Act 1992 (Qld) s 35

Cowan v Brisbane City Council [2012] QPEC 81

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208

Hymix Australia Pty Ltd v Brisbane City Council & Ors [2014] QPEC 35

Synergy Property Partners No 2 Pty Ltd v Brisbane City Council [2016] QPEC 21

Wurtulla Investments Pty Ltd & Hiroc Pty Ltd v Calundra City Council [2004] QPEC 73

COUNSEL:

MA Williamson for the Appellant

T Trotter for the Respondent

SOLICITORS:

Connor O’Meara for the Appellant

Brisbane City Legal Practice for the Respondent

Appeal

By Notice of Appeal dated 24 June 2015, the Appellant appeals[1] the decision of the Respondent Council (‘Council’) refusing the Appellant’s development application (‘DA’) for a material change of use and a preliminary approval for building work (extension to heritage place) in respect of land situated at 116 Brookes Street, Fortitude Valley, Queensland 4006 described as Lots 1 and 2 on SP166740 (‘the Land’).
[1]Pursuant to section 461(1)(a) of the Sustainable Planning Act 2009 (Qld).

Subject Site

The Land has an area of approximately 872m² and is improved by a former Wesleyan Church building (‘Gregory Place’) at 116 Brookes Street constructed around 1888 adjoined by a church hall (‘Gregory Hall’), constructed around 1871. Gregory Hall is located on the…

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.

Continue reading James Russell Architects v Brisbane City Council

Details

AGLC: James Russell Architects v Brisbane City Council [2016] QPEC 43
Case: [2016] QPEC 43
Decision Date: 1 September 2016

CaseChat Overview and Summary

In the matter of James Russell Architects versus Brisbane City Council, the appellant sought to appeal the decision of the respondent council to refuse their development application for a material change of use and preliminary approval for building work. This work involved the extension to a heritage place. The application was assessed against the City Plan 2000, however, the City Plan 2014 came into effect just three days after the development application was lodged. The appellant argued that the court should give more weight to the City Plan 2014, while the council contended that the City Plan 2000 should be given more weight. The court had to determine the appropriate weight to give to each plan and whether the development application unacceptably impacted the cultural heritage value of the heritage place and whether it was consistent with the relevant planning scheme.

The legal issues before the court included the weight to be given to each of City Plan 2000 and City Plan 2014, the impact of the development application on the cultural heritage value of the heritage place, and whether the development application was consistent with the relevant planning scheme. The court examined the evidence from various experts, including heritage architects, visual amenity experts, and town planning experts, to make a well-informed decision regarding the impacts of the proposal on cultural heritage in the context of the relevant planning scheme provisions. The court also considered the concurrence agency response and technical agency response that had approved the development application subject to conditions. Ultimately, the court found that the refusal of the development application was consistent with the relevant planning scheme provisions, and the appeal was dismissed.

The court found that the City Plan 2000 should be given more weight than the City Plan 2014, as it was the relevant planning scheme in place at the time of the development application. The court also found that the development application unacceptably impacted the cultural heritage value of the heritage place, as it was inconsistent with the relevant planning scheme codes under City Plan 2000. The court found that the absence of properly made submissions from relevant referral agencies also contributed to the refusal of the development application. The appeal was dismissed, and the decision of the respondent council to refuse the development application was upheld.

No further orders were made by the court.

Orders

Orders of the court

1. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By letter dated 26 March 2015, the Respondent[9] notified the Appellants the DA had been refused enclosing the decision notice, pursuant to section 334 of the Sustainable Planning Act 2009 (Qld) (‘SPA’), detailing the grounds of refusal (‘Decision Notice’).[10] [9]The ‘assessment manager’, pursuant to section 246 of SPA.[10]Appeal Book, Exhibit 2, page 245. The grounds of refusal are set out in full in Appendix A hereto and include, inter alia, details of what is said to be the DA’s inconsistencies with the relevant planning scheme codes under City Plan 2000 (‘Grounds of Refusal’). The grounds particularise the various Acceptable Solutions (‘AS’) and Performance Criteria (‘PC’), within each development code which are said to conflict with the DA.[11] Further, all relevant referral agencies[12] were identified, with the absence of any properly made submissions noted.[11]See Appendix A.[12]Pursuant to section s246(1) of the Sustainable Planning Act 2009 (Qld). On 13 November 2014, the State Department of Infrastructure and Planning (‘Department’), as a concurrence agency[13], approved the DA subject to conditions (‘Concurrence Agency Response’)[14]. That Concurrence Agency Response was preceded by a State Assessment and Referral Agency (‘SARA’) technical agency assessment response conducted by the Department of Environment and Heritage Protection[15] (‘Technical Agency Response’). That Technical Agency Response also approved the DA, subject to conditions. [13]Sustainable Planning Act 2009 (Qld) section 285.[14]Exhibit 2, Appeal Book, page 199.[15]Exhibit 2, Appeal Book, page 193. The Concurrence Agency Response and the Technical Agency Responses were not assessed by reference to City Plan 2000 or City Plan 2014, but rather by reference to the State Development Assessment Provisions (‘SDAP’) contained within Module 9 – Cultural Heritage. [16][16]Exhibit 5, State Development Assessment Provisions Folio, page 2. Pursuant to section 289 of SPA, the Concurrence Agency Response set out the reasons founding the conditioning of the approval as follows: With respect to the Concurrence Agency Response, section 325 of SPA provides: Accordingly, were the Concurrence Agency Response to require refusal of the DA, the Council, as ‘assessment manager’ under section 246 of SPA, would have been bound to refuse the application. Correlatively, section 314(3) of SPA provides: It can be seen then that a concurrence agency[18] response is only binding when it indicates a refusal. Where the concurrence agency response indicates approval, as is in the present case, the assessment manager need only ‘have regard’[19] to it. I accept the Respondent’s submission that, in contrast to the Concurrence Agency Response, the Department did not, as the Court did, receive the benefit of evidence from various experts. This was an important consideration recognized in Hymix Australia Pty Ltd v Brisbane City Council & Ors [20]. In the present case, the experts included heritage architects, visual amenity experts and town planning experts, allowing for a well informed decision regarding the impacts of the proposal on cultural heritage in the context of the relevant planning scheme provisions. [18]Pursuant to section 251 of SPA, a ‘referral agency’ includes a ‘concurrence agency’.[19]Sustainable Planning Act 2009 (Qld), section 314(3).[20][2014] QPEC 35 at [83].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	James Russell Architects v Brisbane City Council & Anor [2016] QPEC 43
PARTIES:	JAMES RUSSELL ARCHITECTS PTY LTD (Appellant) v BRISBANE CITY COUNCIL (Respondent) And CHIEF EXECUTIVE, DEPARTMENT OF INFRASTRUCTURE, LOCAL GOVENRMENT AND PLANNING (Co-Respondent)
FILE NO/S:	1669/2015
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment of Queensland
DELIVERED ON:	1 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	9 June 2016, 10 June 2016
JUDGE:	Searles DCJ
ORDER:	1. Appeal dismissed.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – OBJECTIONS – where the Appellant made a development application for a material change of use and preliminary approval for building work (extension to heritage place) – where the development application was refused by the Respondent Council – where the development application was assessed against City Plan 2000 – where City Plan 2014 came into effect three days after lodgement of the development application – where the Court must determine what weight to be given to each of City Plan 2000 and City Plan 2014 – where the development application seeks approval for construction of a ‘pod’ structure – where the ‘pod’ structure sits atop an access core constructed from within the heritage place – whether the development application unacceptably impacts the cultural heritage value of the heritage place – whether the development application is consistent with the relevant planning scheme – whether sufficient grounds exist to warrant approval of the development application despite conflict with a relevant planning scheme Brisbane City Plan 2000 Brisbane City Plan 2014 Sustainable Planning Act 2009 (Qld) ss 246, 289, 313, 314, 324, 325, 326, 493(1), 495. Queensland Heritage Act 1992 (Qld) s 35 Cowan v Brisbane City Council [2012] QPEC 81 Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 Hymix Australia Pty Ltd v Brisbane City Council & Ors [2014] QPEC 35 Synergy Property Partners No 2 Pty Ltd v Brisbane City Council [2016] QPEC 21 Wurtulla Investments Pty Ltd & Hiroc Pty Ltd v Calundra City Council [2004] QPEC 73
COUNSEL:	MA Williamson for the Appellant T Trotter for the Respondent
SOLICITORS:	Connor O’Meara for the Appellant Brisbane City Legal Practice for the Respondent