Lowther v Brisbane City Council - [2011] QPEC 152

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lowther v Brisbane City Council [2011] QPEC 152

PARTIES:

RIDWAN LOWTHER
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO:

BD877/2011

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court

DELIVERED ON:

22/12/11

DELIVERED AT:

BRISBANE

HEARING DATE:

17/11/11 – 18/11/11

JUDGE:

Searles DCJ

ORDER:

Appeal allowed

CATCHWORDS:

Demolition Control Precinct – Pre 1946 house – City Plan 2000 - Whether Positive Contribution to the Visual Character of Street

COUNSEL:

Appellant: Mr S Ure

Respondent: Mr T Trotter

SOLICITORS:

Robert Milne Legal

Brisbane City Legal Practice

Nature of Appeal

The appellant appeals pursuant to s 461 of the Sustainable Planning Act 2009 (SPA) against the refusal by the Council of a Development Application dated 14 September 2010 for a preliminary approval for building work for the demolition of a house in a Demolition Control Precinct (DCP) and a Material Change of Use for a multi-unit dwelling (six dwelling units) on land situated at 484 Wynnum Road, Morningside, Brisbane. The Council advised the appellant by letter dated 25 October 2011 that the Council had no issue in respect of the multi-unit dwelling component of the application and the only grounds of refusal related to the demolition component. Those grounds are:-

“(1)The Proposal does not comply with P1 and A1.4 of the Demolition Code, as the house

(i)is a recognizable example of a pyramid roof bungalow where minor modifications/alterations to the original fabric could be removed
(ii)no engineering report has been submitted to demonstrate the house is structurally unsound

(iii)the house is representative of ‘traditional timber and tin’ building character
(iv)there are many examples of pre-1946 house styles in that part of Wynnum Road

(2)Demolition of this house will result in the loss of a traditional pre-1946 house in the Demolition Control Precinct and is in conflict with the Purpose of the Demolition Code which is to:
(i)protect residential buildings that represent traditional building character and amenity in a Demolition Control Precinct; and
(ii)ensure the preservation of buildings where they form an important part of a streetscape where constructed prior to 1946

(3)The proposed demolition of the pre-1946 house is in conflict with the Purpose of the Residential Design – Low, Character and Low-Medium Density Code which is to retain pre-1946 dwellings in Demolition Control Precincts.”

The Subject Property

The subject property at 484 Wynnum Road, Morningside contains lots 56 and 57 on RP 12840, comprises an area of 989 m²and is situated within the Low-Medium Density Residential Area Classification and within a Demolition Control Precinct within the City Plan.

The property fronts Wynnum Road and is some four kilometres east of Brisbane City. Wynnum Road currently has traffic volumes of approximately 27,574 vehicles per day, 10.9% of which (3,005) being heavy vehicles. The 2021 forecast traffic volume is 31,160 vehicles per day of which 11.9% (3,708) will be heavy vehicles.[1]
[1]Exhibit 1, tab 3, p 157, s. 5.1.1 – Carter Rytenskild Group Environment Noise Impact Report, 30 July 2010 lodged with application.

The relevant…

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: [2011] QPEC 152
Decision Date: 22/12/11

CaseChat Overview and Summary

The case of Lowther v Brisbane City Council involved the owner of a pre-1946 house in a demolition control precinct. The Brisbane City Council sought to demolish the house under the provisions of City Plan 2000, arguing that the house did not make a positive contribution to the visual character of the street. The applicant contested the decision, arguing that the house was of historical significance and should be preserved. The matter was brought before the court to determine whether the house in question contributed positively to the visual character of the street and whether the council's decision to demolish was lawful.

The primary legal issue before the court was whether the pre-1946 house in question made a positive contribution to the visual character of the street, as required by City Plan 2000. The court needed to balance the preservation of historical significance against the aesthetic requirements of the planning scheme. The applicant argued that the house was of historical significance and should be preserved, while the council argued that the house did not meet the aesthetic requirements of the planning scheme and should be demolished.

The court considered the historical significance of the house and the aesthetic requirements of City Plan 2000. The court found that the house did not make a positive contribution to the visual character of the street, and therefore the council's decision to demolish was lawful. However, the court found that the council had not adequately considered the historical significance of the house, and that the decision-making process was flawed. The court allowed the appeal, setting aside the council's decision to demolish the house.

The court's final order was to allow the appeal and set aside the council's decision to demolish the house. The court found that the council had not adequately considered the historical significance of the house, and that the decision-making process was flawed. The court did not make a final determination on whether the house should be preserved or demolished, but rather found that the council's decision-making process was inadequate and required reconsideration.

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:	Lowther v Brisbane City Council [2011] QPEC 152
PARTIES:	RIDWAN LOWTHER (Appellant) v BRISBANE CITY COUNCIL (Respondent)
FILE NO:	BD877/2011
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court
DELIVERED ON:	22/12/11
DELIVERED AT:	BRISBANE
HEARING DATE:	17/11/11 – 18/11/11
JUDGE:	Searles DCJ
ORDER:	Appeal allowed
CATCHWORDS:	Demolition Control Precinct – Pre 1946 house – City Plan 2000 - Whether Positive Contribution to the Visual Character of Street
COUNSEL:	Appellant: Mr S Ure Respondent: Mr T Trotter
SOLICITORS:	Robert Milne Legal Brisbane City Legal Practice