Lynch v Brisbane City Council - [2010] QPEC 137

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lynch v Brisbane City Council [2010] QPEC 137

PARTIES:

RICHARD JOHN LYNCH

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

1458 of 2010

DIVISION:

Appellate

PROCEEDING:

Developer appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8 December 2010

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Developer’s appeal against refusal of demolition of pre 1946 “timber and tin” dwelling in Development Control Precinct – whether it positively contributed to the visual character of the street – whether removal would result in loss of timber and tin character in the Demolition Control Precinct.

COUNSEL:

S Ure for the appellant

T Trotter for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellant

Brisbane City Legal Practice for the respondent

Mr Lynch appeals under s 461(1)(a) of the Sustainable Planning Act 2009 (SPA) against the Council’s refusal of his development application for a preliminary approval for building work (demolition of a pre-1946 house in a Development Control Precinct) in respect of a house property at 50-52 Collins Street, Nundah. The Decision Notice is dated 16 April 2010 and assigns the following reasons:

“1.The proposed demolition does not comply with the Purpose of the Demolition Code as:
The proposal does not protect a residential building that contributes to the traditional character and amenity of the Low Density Residential Area in the Demolition Control Precinct; and

The proposal does not ensure the preservation of a building where it forms an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946.

2.The proposed demolition does not comply with Performance Criteria P1 of the Demolition Code as:
The building represents ‘traditional building character’, has no evidence of being incapable of structural repair, and the building contributes positively to the visual character of the street.
3.The proposed demolition does not comply with Acceptable Solution A1.1 of the Demolition Code as:

The building has not been substantially altered and has the appearance of being constructed in or prior to 1946.

4.The proposed demolition does not comply with Acceptable Solution A1.2 of the Demolition Code as:

There is no evidence that the building is structurally unsound and not reasonably capable of being made structurally sound.

5.The proposed demolition does not comply with Acceptable Solution A1.3 of the Demolition Code as:

The demolition of the building will result in the loss of traditional building character within the Demolition Control Precinct where in a Low Density Residential Area.

6.The proposed demolition does not comply with Acceptable Solution A1.4 of the Demolition Code as:

The street contains traditional building character.”

In the course of responding to the appellant’s request for further and better particulars, the Council determined to amend its grounds of refusal by resiling from 1 and 5 above and relying on the following in addition to 2, 3 and 4:

“The proposed demolition does not comply with the Purpose of the Demolition Code as 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.

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Details

Case: [2010] QPEC 137
Decision Date: 16 December 2010

CaseChat Overview and Summary

The case of Lynch v Brisbane City Council involved a developer who sought permission to demolish a pre-1946 "timber and tin" dwelling situated in a Development Control Precinct. The Brisbane City Council had refused the application, leading to an appeal by the developer. The Court was tasked with determining whether the dwelling positively contributed to the visual character of the street and whether its removal would result in the loss of the timber and tin character in the area.

The central legal issue was whether the dwelling, which was considered a heritage asset, should be preserved due to its contribution to the area's historical and aesthetic value. The Court needed to balance the developer's right to alter the property with the community's interest in maintaining the historical integrity of the precinct. The assessment involved examining the visual impact of the dwelling on the streetscape and its significance in preserving the timber and tin architectural style.

The Court found that the dwelling did indeed positively contribute to the visual character of the street and was an important part of the area's historical identity. The Council's refusal to grant permission for demolition was upheld, as the removal of the dwelling would result in a significant loss of the timber and tin character that defines the precinct. The appeal was dismissed, and the decision to preserve the dwelling was affirmed.

Orders

Orders of the court

Appeal dismissed

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:	Lynch v Brisbane City Council [2010] QPEC 137
PARTIES:	RICHARD JOHN LYNCH (appellant) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	1458 of 2010
DIVISION:	Appellate
PROCEEDING:	Developer appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	16 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7, 8 December 2010
JUDGE:	Robin QC DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	Developer’s appeal against refusal of demolition of pre 1946 “timber and tin” dwelling in Development Control Precinct – whether it positively contributed to the visual character of the street – whether removal would result in loss of timber and tin character in the Demolition Control Precinct.
COUNSEL:	S Ure for the appellant T Trotter for the respondent
SOLICITORS:	McInnes Wilson Lawyers for the appellant Brisbane City Legal Practice for the respondent