PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Lucas v Brisbane City Council [2015] QPEC 25
PARTIES:
DOREEN LUCAS
(appellant)v
BRISBANE CITY COUNCIL
(respondent)FILE NO/S:
Appeal No. BD2963/2014
DIVISION:
Appellate
PROCEEDING:
Appeal (Interlocutory Hearing)
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
4 June 2015
DELIVERED AT:
Brisbane
HEARING DATES:
14 and 15 May 2015
JUDGE:
Dorney QC DCJ
ORDER:
1. It is ordered that the parties prepare joint short minutes of the relevant orders, including as to costs, if any, in accordance with these reasons – or, failing agreement, separate minutes each – by 4pm on 11 June 2015.
CATCHWORDS:
Planning and Environment – demolition in DCP – whether building does not contribute positively to the visual character of the street – whether demolition will not result in loss of traditional “tin and timber” character within DCP
LEGISLATION CITED:
Sustainable Planning Act 2009, s 313, s 313(2)(c), s 313(3), s 326, s 461, s 493(1)
CASES CITED:
Berlese v Brisbane City Council [2003] QPELR 330
Ken Ryan & Associates v Brisbane City Council [2008] QPELR 147
Leach & Ors v Brisbane City Council [2011] QPELR 609
Litbit Pty Ltd v Brisbane City Council [2009] QPELR 197
Lonie v Brisbane City Council [1998] QPELR 209
Lynch v Brisbane City Council [2011] QPELR 321
Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73
Stockland Development Pty Ltd v Townsville City Council & Ors (2013) 195 LGERA 317
Thurecht & Anor v Brisbane City Council [2015] QPEC 19
Unterweger v Brisbane City Council [2012] QPELR 335
Wallace v Brisbane City Council [2012] QPELR 689
COUNSEL:
S M Ure for the appellant
B D Job for the respondent
SOLICITORS:
Macdonnells Law for the appellant
Brisbane City Legal Practice for the respondent
Introduction
The issue in this proceeding (which was ordered to be determined separately from the appeal itself by order of this Court on 1 April 2015) concerns whether circumstances exist to grant a preliminary approval for the carrying out of building work for the demolition of a “pre-1946” character house within the Demolition Control Precinct (“DCP”). Although properly stated as “pre-1947” (because the period is defined as “in or prior to the end of 1946”), I will use the term as it is used, at times, in the relevant planning scheme and the experts’ reports. The house is situated at 117 Vernon Street, Nundah, Brisbane.
On the first day of the trial, after an opening by the appellant’s learned counsel as to this issue, I conducted a view of Vernon Street and its surrounding streets for the purpose of better understanding the evidence to be led during the hearing.
The “Site”
The land, on which the building (being a house) at 117 Vernon Street is an improvement:
· is described as Lots 75 and 76 on RP34487;
· has a combined area of the two allotments of approximately 810 m2;
· is included in the DCP pursuant to the Brisbane City Plan 2000 (“Planning Scheme”); and
·…
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- Case
- [2015] QPEC 25
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the building in question did indeed fail to contribute positively to the visual character of the street as claimed by the council, and if the proposed demolition would indeed result in the loss of the traditional “tin and timber” character of the area. This required the court to consider the relevant provisions of the Development Control Plan and the character of the area in which the building was located.
The court found that the building did not contribute positively to the visual character of the street and that the demolition would not result in a loss of the traditional “tin and timber” character of the area. The court considered the visual impact of the building and the impact of its demolition on the character of the area. It found that the building was out of character with the surrounding area and that its demolition would not have a significant impact on the overall character of the area. The court also noted that the Development Control Plan provides for the demolition of buildings that do not contribute positively to the visual character of the street.
Based on the above findings, the court dismissed Lucas' appeal against the council’s notice to proceed with the demolition of the building. The court ordered that the parties prepare joint short minutes of the relevant orders, including as to costs, if any, in accordance with these reasons – or, failing agreement, separate minutes each – by 4pm on 11 June 2015.
Orders
Orders of the court
1. It is ordered that the parties prepare joint short minutes of the relevant orders, including as to costs, if any, in accordance with these reasons – or, failing agreement, separate minutes each – by 4pm on 11 June 2015.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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