Wallace v Brisbane City Council - [2012] QPEC 47

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wallace v Brisbane City Council [2012] QPEC 47

PARTIES:

Susan Wallace (Power of Attorney for Louise Edgar)

(Appellant)

and

Brisbane City Council
(Respondent)

FILE NO/S:

4544/2011

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

13 July 2012

DELIVERED AT:

Brisbane

HEARING DATES:

18 and 19 June 2012

JUDGE:

R. S. Jones DCJ

ORDER:

The appeal is allowed

CATCHWORDS:

APPEAL – Application for preliminary approval for building work refused by respondent – development involved demolition of a pre-1946 house situated within a Demolition Control Precinct under the respondent’s City Plan 2000 – whether building represented traditional character – whether building contributed positively to the visual character of the street – whether the demolition of the building would result in a loss of traditional building character within the Demolition Control Precinct – whether the street had no traditional building character – whether demolition of the building would be in conflict with the respondent’s Demolition Code.

Sustainable Planning Act 2009 (Qld), ss 461, 493(1), 496

Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117, considered
Hearne v Brisbane City Council [2010] QPEC 16, cited

Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2007] QPEC 093; [2008] QPELR 147, cited
Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 234, considered
Lonie v Brisbane City Council & Ors [1998] QPELR 209, considered
Lynch v Brisbane City Council [2010] QPEC 137; [2011] QPELR 314, cited
Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30, cited
T Matthews & Dodd Architectural Group v Brisbane City Council [1997] QPELR 388, considered
Unterweger v Brisbane City Council [2011] QPEC 134, considered
Westfield Management Pty Ltd v Pine Rivers Shire Council [2004] QPELR 337, cited

COUNSEL:

Mr S Ure for the appellant.
Mr M Williamson with Mr M Batty, for the respondent.

SOLICITORS:

King & Co for the appellant.
Brisbane City Legal Practice for the respondent.

This proceeding is concerned with an appeal pursuant to s. 461 of the Sustainable Planning Act 2009 (‘SPA’) against the refusal by the respondent of a development application for preliminary approval for building works involving the demolition of a pre-1946 dwelling. For the reasons set out below, the appeal is allowed.

Background

On 11 October 2011, the respondent refused the appellant’s development application for approval to, inter alia, demolish a house located on land situated at 46 Quay Street, Bulimba. It was uncontroversial that it was located within a Demolition Control Precinct as defined in the respondent’s planning scheme. It was also uncontroversial that the dwelling was constructed prior to the end of 1946, was structurally sound and had not been substantially altered. However, there was debate about whether the extent of the alterations detracted from its presentation as a pre-1946 dwelling.

The reason for the refusal was that demolition would conflict with the Development Code under the respondent’s City Plan 2000. The Demolition Code…

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: [2012] QPEC 47
Decision Date: 13 July 2012

CaseChat Overview and Summary

The appeal, heard in the Queensland Land Court, involved Wallace, the appellant, and the Brisbane City Council, the respondent. Wallace sought preliminary approval for a building work that required the demolition of a pre-1946 house within a Demolition Control Precinct as designated in the City Plan 2000. The Brisbane City Council had refused this application. The primary dispute centred on whether the building represented traditional character, contributed positively to the visual character of the street, and whether its demolition would result in a loss of traditional building character within the precinct. Additionally, the court examined whether the street had no traditional building character and whether the demolition was in conflict with the respondent’s Demolition Code.

The court was required to determine whether the building under consideration embodied traditional character and positively contributed to the street's visual character. Further, it needed to assess if the demolition would result in a loss of traditional character within the Demolition Control Precinct, and whether the street lacked traditional building character. The court also had to decide if the proposed demolition was in conflict with the respondent’s Demolition Code.

In its reasoning, the court found that the building in question indeed represented traditional character and contributed positively to the street's visual character. The court noted that the demolition of the building would result in a loss of traditional character within the precinct. Furthermore, the court determined that the street retained traditional building character and that the demolition was in conflict with the respondent’s Demolition Code. Consequently, the appeal was allowed.

The final orders of the court were that the appeal is allowed, thereby granting Wallace the preliminary approval for the building work despite the Brisbane City Council's refusal.

Orders

Orders of the court

The appeal is allowed

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:	Wallace v Brisbane City Council [2012] QPEC 47
PARTIES:	Susan Wallace (Power of Attorney for Louise Edgar) (Appellant) and Brisbane City Council (Respondent)
FILE NO/S:	4544/2011
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	13 July 2012
DELIVERED AT:	Brisbane
HEARING DATES:	18 and 19 June 2012
JUDGE:	R. S. Jones DCJ
ORDER:	The appeal is allowed
CATCHWORDS:	APPEAL – Application for preliminary approval for building work refused by respondent – development involved demolition of a pre-1946 house situated within a Demolition Control Precinct under the respondent’s City Plan 2000 – whether building represented traditional character – whether building contributed positively to the visual character of the street – whether the demolition of the building would result in a loss of traditional building character within the Demolition Control Precinct – whether the street had no traditional building character – whether demolition of the building would be in conflict with the respondent’s Demolition Code. Sustainable Planning Act 2009 (Qld), ss 461, 493(1), 496 Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117, considered Hearne v Brisbane City Council [2010] QPEC 16, cited Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2007] QPEC 093; [2008] QPELR 147, cited Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 234, considered Lonie v Brisbane City Council & Ors [1998] QPELR 209, considered Lynch v Brisbane City Council [2010] QPEC 137; [2011] QPELR 314, cited Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30, cited T Matthews & Dodd Architectural Group v Brisbane City Council [1997] QPELR 388, considered Unterweger v Brisbane City Council [2011] QPEC 134, considered Westfield Management Pty Ltd v Pine Rivers Shire Council [2004] QPELR 337, cited
COUNSEL:	Mr S Ure for the appellant. Mr M Williamson with Mr M Batty, for the respondent.
SOLICITORS:	King & Co for the appellant. Brisbane City Legal Practice for the respondent.