Planning and Environment Court of Queensland excuses the applicant's non-compliance with a statutory requirement to substantially start demolition within two months of being given a building approval

In brief

The case of Karam Boutique Residential 8 Pty Ltd v Redland City Council [2021] QPEC 47 concerned an originating application to the Planning and Environment Court of Queensland (Court) seeking to excuse the Applicant's non-compliance with section 71 of the Building Act 1975 (Qld) (Building Act), which required demolition works to substantially start within two months of an applicant being given a building approval. The Court ultimately excused the applicant's non-compliance.

Background

In January 2019, the Redland City Council (Council) resolved to introduce a major amendment to its planning scheme, which included 509 Main Road, Wellington Point (Subject Land) in the Heritage Overlay. The Subject Land was improved with an old Queenslander and a shed. The Queenslander was built in around 1886 and was described as being in "extremely poor" condition (see [13]).

On 17 November 2020, a building approval was granted by a building certifier to demolish the Queenslander and the shed. It is understood that this building approval was sought to avoid the ramifications of the proposed heritage listing in respect of the Queenslander.

On 26 November 2020, the Applicant entered into a contract to purchase the Subject Land with the intention of re-developing it in accordance with its medium-density residential zoning. The contract included a special condition requiring the vendor to demolish the existing house and shed at the vendor's expense. That special condition was later deleted with the effect that the purchaser was to undertake the demolition works in exchange for a reduction of the purchase price.

On 6 January 2021, the vendor obtained a quote from a demolition company, which was accepted on 13 January 2021. The demolition company commenced preliminary works with the intention of commencing physical site preparation works by 15 January 2021 and demolition by 18 January 2021.

On 11 January 2021, the Council became aware of the building approval, and the Mayor wrote to the Acting Minister for the Environment and the Great Barrier Reef asking the State to urgently consider the heritage value of the Queenslander and the appropriateness of issuing a stop work order. A stop work order was issued on 13 January 2021 in respect of both the Queenslander and the shed for a period of 60 business days.

On 25 March 2021, the State approved the implementation of a Temporary Local Planning Instrument (TLPI), which included the Subject Land in the Heritage Overlay.

Notwithstanding the stop work order, the State resolved that the Subject Land ought not be entered onto the Queensland Heritage Register. At the time of the hearing before the Court, the TLPI remained in force, but the stop work order had lapsed.

The effect of the above events was that the demolition did not substantially start within the statutory time period contained in section 71 of the Building Act and the Applicant had to apply to the Court to excuse the non-compliance.

Section 71 of the Building Act

Section 71 of the Building Act relevantly states the following:

"(1) ​This section applies to a building development approval for building work to —

(a) demolish or remove a building or structure; or

(b) rebuild, after removal, a building or structure.

(2) The building work must substantially start within 2 months after the giving of approval.

(3) Within 1 year after the giving of the approval—

(a) the building work must be completed;…"

Non-compliance ought to be excused

The Court ultimately excused the non-compliance with section 71 of the Building Act. In so concluding, the Court stated the following:

• It is more likely than not that, but for the stop work order, the demolition works would have substantially started by 18 January 2021, which is when the demolition works would have had to substantially start under section 71 of the Building Act (see [38] and [50]).
• The Applicant's evidence "did not give the impression that the applicant had any intention of carrying out any improvement to this house, let alone incorporating it into any development." (at [43]).
• Although the parties' structural engineers agreed that the structural members of the house appeared to be in good condition, the effect of their evidence in cross-examination was that further work would be needed to maintain that structural soundness (at [46]).
• "As at November 2020, demolition approval was code assessable and was able to be granted by a building certifier…". The result of the TLPI was that the demolition of the Queenslander was now impact assessable and "it can be accepted that the introduction of that temporary planning instrument is reflective of the public interest in protecting places with such heritage value." (at [56] and [57]).
• The Court had "grave reservations about the public interest being served by protecting this house in its present condition where there is no obligation on the part of the applicant to carry out any rectification works nor any intention on the part of the [Council] to offer any meaningful financial assistance in that regard." (at [66]).
• The stop work order covered the entire Subject Land and therefore prevented the demolition of the shed, which had no heritage value (at [70]).
• "[W]hen the decision was made to issue the stop order, the Acting Minister did not have sufficient, if any, material before her to make a properly considered decision." (at [74]). The result was that the "applicant was denied the right to demolish or at least start to demolish the shed." (at [76]).

Conclusion

The Court was satisfied that the Applicant's non-compliance with the requirement to substantially start the demolition work within two months of the building approval ought to be excused.