Thurecht & Anor v Brisbane City Council - [2015] QPEC 19

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 335

Weightman 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…

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.

Keep reading for free

Create a free CaseChat account to read Thurecht & Anor v Brisbane City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QPEC 19
Decision Date: 15 May 2015

CaseChat Overview and Summary

The appellants, Thurecht and another, appealed a decision of the Brisbane City Council to approve a development application for the demolition of residential premises. The case was heard and determined in the Queensland Land Court. The primary issue before the court was whether the proposed demolition of the residential premises would result in a loss of the traditional timber and tin building character of the street, and if the council's approval was justified despite any established conflict. The court was required to determine whether the house in question contributed positively to the visual character of the street, and if the entire street or only sections of it should be considered.

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

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:	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 335 Weightman 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