West v Brisbane City Council - [2015] QPEC 1

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

West v Brisbane City Council [2015] QPEC 1

PARTIES:

BRETT WEST
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO:

4423 of 2013

DIVISION:

Planning & Environment

PROCEEDING:

Review

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

3 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2014

JUDGE:

Everson DCJ

ORDER:

1. The decision of the ADR Registrar is set aside

2. Appeal dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – NATURE OF REVIEW – application for review of decision of ADR Registrar allowing an appeal against the decision of the Council to refuse a development application to demolish a pre-1946 house in a Demolition Control Precinct – whether the building does not contribute positively to the visual character of the street – whether the demolition of the building will not result in the loss of traditional building character.

Sustainable Planning Act 2009 (Qld), s 491B(5).

Australian Gas Light Co v Samuels (1993) 9 NSWCLR 616, considered

Sapina v Coles Myer Limited [2009] NSWCA 71, considered

Wallace v Brisbane City Council [2012] QPELR 689, applied

COUNSEL:

Mr M A Williamson for the appellant

Mr B D Job for the respondent

SOLICITORS:

Connor O’Meara for the appellant

Brisbane City Legal Practice for the respondent

Introduction

This is an application for a review of the decision of the ADR Registrar made on 28 August 2014 allowing the appeal against the decision of the Council to refuse a development application to demolish a pre-1946 house in a Demolition Control Precinct (“the decision of the ADR Registrar”).

The nature of the application

The application for review is brought pursuant to s 491B(5) of the Sustainable Planning Act 2009 (“SPA”) which simply provides that “A decision, direction, or act of the ADR Registrar made, given or done under this part, may be received by the court”.

While no specific legislative guidance as to what is contemplated by such a proceeding is to be found in SPA or elsewhere, decisions of the New South Wales Court of Appeal are instructive. In Sapina v Coles Myer Limited[1] the concept of a review was explored. In delivering the judgment of the court Allsop P and Hoeben J quoted Meagher JA[2] in Australian Gas Light Co v Samuels[3] that a review “means that the Judge had wider powers than would be involved in a mere appeal, but not so wide as to treat the primary decision as if it did not exist”. When considering a provision of the Work Place Injury Management and Workers Compensation act 1998 (NSW) (“the WIM Act”) their Honours concluded that the “notion of review of a decision”, in the context of the former legislation and the WIM Act was “wider than an appeal strictly so called and encompassing a reconsideration beyond correction of error”. [4]
[1][2009] NSWCA 71
[2]Ibid at [35]
[3](1993) 9 NSWCLR 616 at 625
[4]Sapina, op cit at [57]

The jurisdiction of the court pursuant to…

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 West 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 1
Decision Date: 3 February 2015

CaseChat Overview and Summary

In the case of West v Brisbane City Council, the applicant sought a review of a decision made by an ADR Registrar who had allowed an appeal against the Brisbane City Council's refusal to approve a development application. The application was to demolish a pre-1946 house located within a Demolition Control Precinct. The primary dispute centred on the Council's assertion that the building did not contribute positively to the visual character of the street and that its demolition would result in the loss of traditional building character.

The legal issues before the court involved the interpretation and application of the relevant planning laws and policies. Specifically, the court had to determine whether the building in question indeed failed to contribute positively to the street's visual character, and whether its demolition would lead to the loss of traditional building character, as determined by the Council. Additionally, the court considered whether the Registrar had correctly exercised their discretion in allowing the appeal.

The court found that the Registrar had not properly considered the relevant planning policies and failed to adequately weigh the evidence presented. The court held that the Registrar had erred in law by not sufficiently evaluating the contribution of the building to the street's visual character and the potential loss of traditional building character if the house were demolished. Consequently, the court set aside the decision of the Registrar and dismissed the appeal, thereby upholding the Council's initial refusal of the development application.

Orders

Orders of the court

1. The decision of the ADR Registrar is set aside

2. 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:	West v Brisbane City Council [2015] QPEC 1
PARTIES:	BRETT WEST (appellant) v BRISBANE CITY COUNCIL (respondent)
FILE NO:	4423 of 2013
DIVISION:	Planning & Environment
PROCEEDING:	Review
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	3 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	9 December 2014
JUDGE:	Everson DCJ
ORDER:	1. The decision of the ADR Registrar is set aside 2. Appeal dismissed
CATCHWORDS:	ENVIRONMENT AND PLANNING – NATURE OF REVIEW – application for review of decision of ADR Registrar allowing an appeal against the decision of the Council to refuse a development application to demolish a pre-1946 house in a Demolition Control Precinct – whether the building does not contribute positively to the visual character of the street – whether the demolition of the building will not result in the loss of traditional building character. Sustainable Planning Act 2009 (Qld), s 491B(5). Australian Gas Light Co v Samuels (1993) 9 NSWCLR 616, considered Sapina v Coles Myer Limited [2009] NSWCA 71, considered Wallace v Brisbane City Council [2012] QPELR 689, applied
COUNSEL:	Mr M A Williamson for the appellant Mr B D Job for the respondent
SOLICITORS:	Connor O’Meara for the appellant Brisbane City Legal Practice for the respondent