Klinkert v Brisbane City Council

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Klinkert v Brisbane City Council [2018] QPEC 30
PARTIES:	STEPHEN KLINKERT
(appellant)
v
BRISBANE CITY COUNCIL
(respondent)
FILE NO/S:	Appeal No. BD3458/17
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING  COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	15 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	16-18 May 2018
JUDGE:	Williamson QC DCJ
ORDER:	It is ordered that:

1.          By 4pm on 6 July 2018 the Respondent is to deliver a draft suite of conditions to the Appellant.

2.          The Appeal be listed for review at 9:15am on 20 July 2018.

CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal
against refusal of proposed demolition of a dwelling house in the
LMR zone and the Traditional building character overlay –
whether the dwelling house is properly characterised as
traditional building character – where development application
was decided under the Sustainable Planning Act 2009 assessment
regime but appeal commenced under the Planning Act 2016 –
whether appeal to be decided under the Planning Act 2016 assessment regime - whether the development application must be approved by operation of s.60(2)(a) of the Planning Act 2016
– weight to be given to amended planning documents – whether
discretion conferred by s.60(2)(b) of the Planning Act 2016 should be exercised in favour of approval
LEGISLATION:	Planning Act 2016, ss 29, 43, 45 and 60
Planning & Environment Court Act 2016, ss. 45 and 46 Sustainable Planning Act 2009, ss 108, 109 and 313
CASES:	Histpark Pty Ltd & Anor v Council of the Shire of Maroochy
(2002) QPELR 134
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21
Mariott v Brisbane City Council (2015) QPELR 910
Vadale Pty Ltd v Landsborough Shire Council (1985) QPLR 338
COUNSEL:	D Gore QC and M Batty for the appellant
B Job QC and T Trotter for the respondent
SOLICITORS:	Broadley Rees Hogan for the appellant
City Legal for the respondent

Introduction

1. The Appellant is the owner of land situated at 40 Archer Street, Toowong (“the land”).

   The land is improved with a dwelling house constructed prior to 1947[1] and designed in the English Tudor revival style.[2] The building fabric comprises face brick with rendered masonry feature elements and a tiled roof.[3]

   [1]           Exhibit 4, para 3(a) and Figure 1.

   [2]           Exhibit 4, para 22.1(a), (c) and 22.2(a).

   [3]           Exhibit 4, para 22.1(c); Exhibit 17, which is attached to this judgment.

2. The dwelling house is an attractive high quality piece of architecture.[4] It forms part of a cohesive group of five contiguous inter-War houses that are situated at the south- eastern end of Archer Street.[5] The dwelling house is visually prominent within the group of five houses. The group of houses is a strong contributor to the character of Archer Street taken as a whole.

   [4]           Exhibit 4, para 22.2(a); Exhibit 12, para 4.1(a); Elliott: T2-26/L42.

   [5]           Exhibit 4, paragraph 23.2(a). Elliott: T3-27.

3. In late June 2017, the Appellant made a code assessable development application to the Respondent for a…