Marriott v Brisbane City Council

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Mariott v Brisbane City Council [2015] QPEC 45

PARTIES:

JULIE LOIS MARIOTT

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

Appeal No. BD519 of 2015

PROCEEDING:

Appeal

DELIVERED ON:

11 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 – 24 July 2015

JUDGE:

Bowskill QC DCJ

ORDER:

Appeal allowed

CATCHWORDS:

ENVIRONMENT AND PLANNING – Development control – Demolition – Building subject to Traditional building character overlay and Traditional building character (demolition) overlay code – Whether the demolition code performance and acceptable outcomes are satisfied – Whether  demolition will result in the loss of traditional building character – Whether the subject house is in a street that has no traditional character – Whether the subject house is a building which does not contribute positively to the visual character of the street.

Sustainable Planning Act 2009 (Qld)

Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147
Litbit Pty Ltd v Brisbane City Council [2009] QPELR 197
Lucas v Brisbane City Council [2015] QPEC 25
Lynch v Brisbane City Council [2010] QPELR 314
Wallace v Brisbane City Council [2012] QPELR 689
Unterweger v Brisbane City Council [2011] QPEC 134

COUNSEL:

SM Ure for the Appellant
B Job for the Respondent

SOLICITORS:

HWL Ebsworth for the Appellant
Brisbane City Legal Practice for the Respondent

Introduction

1. The appellant, who is the owner of a house on land situated at 55 Sydney Street, Kedron (lots 85 and 86 on registered plan 26128), wishes to demolish that house.  The land is within the “Character residential zone” under the relevant planning scheme, the Brisbane City Plan 2014 (CP2014).  It is covered by, among other things, the “Traditional building character overlay” (overlay) and therefore subject to the “Traditional building character (demolition) overlay code” (demolition code).[1]   

   [1]            See section 8.2.21 of CP2014.

2. The proposed demolition is development[2] which is code assessable.[3]  Accordingly, s 313 of the SPA applies, requiring assessment of the development application against, relevantly, the demolition code.   Under s 326, a decision in relation to an application for approval for such development must not conflict with the code, unless there are sufficient grounds (meaning matters of public interest, not including the personal circumstances of an applicant, owner or interested party[4]) to justify that decision, despite the conflict.

   [2]See the definitions of “development” (in s 7) and “building work” (in s 10) in the Sustainable Planning Act 2009 (SPA).

   [3]            See sections 5.3.1 and 5.3.2 and table 5.10.21 of CP2014.

   [4]            Definition of “grounds” in schedule 3 to the SPA.

3. By decision made on 21 January 2015, the respondent Council refused the appellant’s application for preliminary approval to demolish the house, on the grounds that the proposed demolition does not comply with various parts of the demolition code. 

4. This is an appeal under s 461 of the SPA from the Council’s refusal of the development application.   Under s 493(1) of the SPA, the appellant bears the onus of establishing that…