PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Thurecht & Anor v Brisbane City Council [2015] QPEC 19
PARTIES:
KATHRYN THURECHT
(First Appellant)
AND
STEPHEN THURECHT
(Second Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
FILE NO/S:
3175/14
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
15 May 2015
DELIVERED AT:
Brisbane
HEARING DATE:
6 March 2015
JUDGE:
Searles DCJ
ORDER:
1. Appeal will be dismissed.
2. Costs are reserved, with the parties to provide any costs submissions within 14 days of this judgment.CATCHWORDS:
PLANNING AND ENVIRONMENT – DEMOLITION – RESIDENTIAL PREMISES – Whether house contributes positively to the visual character of the street – Whether entire street or sections of it - Whether demolition will result in loss of traditional timber and tin building character –Whether approval justified despite any established conflict.
Brisbane City Plan 2000
Brisbane City Plan 2014
Sustainable Planning Act 2009 (Qld) ss 313, 495(2)(a)
Armstrong v Brisbane City Council [2003] QPELR 475
Berlese v Brisbane City Council [2003] QPELR 330
Kangaroo Point Residents Association v Brisbane City Council [2002] QPELR 75
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 314
Razia Developments Pty Ltd v Brisbane City Council [2005] QPELR 205
Unterweger v Brisbane City Council [2012] QPELR 335Weightman v Gold Coast City Council & Anor [2002] 121 LGERA 161
COUNSEL:
Mr S Keliher (Solicitor) for the Appellants
Mr B Job of Counsel for the Respondent
SOLICITORS:
Milne Legal for the Appellants
Brisbane City Legal Practice for the Respondent
Contents
Nature of Appeal3
Assessment Regime3
CP20003
CP20143
The House4
Submitters4
Council’s grounds for refusing the Development Application4
Grounds of Appeal5
Further Grounds of Appeal6
Relevant provisions of CP20008
Relevant provisions of CP201413
Joint Experts Report17
Points of Disagreement between Experts19
Loss of traditional ‘timber and tin’ building character within the DCP19
Contribution to the visual character of the street 21
Protecting traditional character and amenity in Residential Areas23
Ensuring preservation of pre-1946 buildings in the streetscape24
Ensuring precincts of pre-1946 houses are retained25
Reducing the hillside character of the Hillside Precinct26
Substantial differences between CP2014 and CP2000 of relevance26
Appellants’ Submissions27
Council’s Submissions29
Consideration31
Orders37
Nature of appeal
This appeal challenges the decision of Council in Decision Notice of 4 August 2014 refusing a development application (DA) for a preliminary approval to carry out building work for the demolition of a house in a Demolition Control Precinct on land described as lots 112 and 113 on RP19635 and situated at 28 Wilden Street, Paddington (Land). The DA was lodged under City Plan 2000 (CP2000) on 23 June 2014, one week before the commencement of City Plan 2014 (CP2014) on 30 June 2014.
Assessment regime
It is common ground that the DA requires code assessment,[1] carried out in accordance with s 313 of the Sustainable Planning…
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- Case
- [2015] QPEC 19
- Decision Date
CaseChat Overview and Summary
The court considered the relevant planning and environmental legislation, and the council's planning scheme. The court found that the house in question did not contribute positively to the visual character of the street, and that the entire street should be considered when assessing the impact of the proposed demolition. The court also found that the demolition would result in a loss of the traditional timber and tin building character of the street, but that the council's approval was justified despite this conflict. The court held that the council had properly considered the relevant planning and environmental factors, and had made its decision in accordance with the law.
The appeal was dismissed, and costs were reserved, with the parties to provide any costs submissions within 14 days of this judgment. The court found that the council's decision to approve the development application was justified, and that the appellants' appeal was without merit. The court held that the council had properly exercised its discretion in approving the development application, and that the appellants had not demonstrated that the council's decision was unreasonable or unlawful.
Orders
Orders of the court
1. Appeal will be dismissed.
2. Costs are reserved, with the parties to provide any costs submissions within 14 days of this judgment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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