In brief

The case of West v Brisbane City Council [2015] QPEC 1 concerned an application for a review of a decision of the Alternative Dispute Resolution Registrar to allow an appeal filed by Brett West against a decision of the Brisbane City Council to refuse a development application to demolish a pre-1946 house in a Demolition Control Precinct under the Brisbane City Plan 2000.

The Planning and Environment Court set aside the decision of the Registrar to allow the appeal, finding that on the evidence before the Registrar the proposed demolition was contrary to the provisions of the Demolition Control Precinct, and the appeal should therefore be dismissed.

Court's jurisdiction when reviewing decisions by the Registrar was broad and unfettered subject to the evidence before the Registrar in reaching the decision

The court first considered how it should approach a review of a decision by the Registrar, as there was no specific legislative guidance.

By reference to a number of New South Wales decisions in the context of a review of a decision, the court observed that its jurisdiction was broad and the decision of the Registrar may be reviewed in an unfettered manner, subject to the evidence before the Registrar in reaching the decision.

Both architectural heritage experts agreed that the house was recognisably a pre-1946 house exhibiting traditional building character but disagreed on the impact of the change of alignment of Gordon Street and the racecourse adjoining the house

The house is located at the end of Gordon Street which comprises predominantly pre-1946 houses that adjoin a racecourse. The location of the house is slightly out of alignment with the remainder of the houses in the street due to a curve in the road. The entire residential neighbourhood is effectively within the Low Density Residential Area and a Demolition Control Precinct.

Both parties relied on the expert opinion of their respective heritage architects. Both experts agreed that the house was recognisably a pre-1946 house that exhibited traditional building character. However, both experts had different views concerning the impact of the change of alignment of Gordon Street and the racecourse adjoining the house.

Mr West's expert considered that the house was visually isolated from the remainder of the Precinct, and its demolition would have negligible impact on the overall traditional character in the Precinct. However, the council’s expert considered that Gordon Street had remarkably strong traditional character and that the demolition of the house "would result in the loss of traditional building character within the DCP".

However, both experts conceded in various aspects in their views in the course of oral evidence. Relevantly, Mr West's expert conceded that Gordon Street was a "unusually representative of traditional building character and that at the southern end of Gordon Street all the houses exhibited it".

Court disagreed with the Registrar's determination and found that the proposed demolition was contrary to the purpose and intent of the Demolition Control Precinct and did not satisfy the relevant performance criterion and acceptable solution

The court observed that the Registrar was correct that the dispute was limited to the application of one performance criteria and one corresponding acceptable solution relating to the demolition of a residential building, being Performance Criterion P1 and Acceptable Solution A1.3 of the Demolition Code.

In considering the Registrar's determination, the court noted that:
  1. the Registrar preferred the evidence of Mr West's expert over that of the council’s that the "house does not contribute positively to the visual character of the street" and as such found that Performance Criterion P1 was satisfied; and
  2. the Registrar also considered the relevant part of Acceptable Solution A1.3 in case the Registrar was incorrect about compliance with Performance Criterion P1 and found that in relation to the loss of the house "the loss would not be 'significant, concerning or unacceptable rather than no loss at all' or in the words of Jones DCJ [in Wallace v Brisbane City Council [2012] QPELR 689] the loss will not be 'meaningful, or significant'."

The court disagreed with the Registrar’s determination and considered that the Registrar could not have arrived at such determination when the Demolition Code was read as a whole, having regard to the Purpose of the Code and the Performance Criteria and Acceptable Solutions.

In this respect the court found that the intention of the Demolition Code was that "structurally sound residential buildings constructed before the end of 1946 are retained in the Development Control Precincts and Low Density Residential Areas" and it had little relevance whether or not the house was visually isolated.

Given the character and location of the house and Mr West's expert opinion in relation to the character of Gordon Street, the court was of the view that the house would contribute positively to the visual character of the street and therefore, found that Performance Criterion P1 was not satisfied.

The court was also not convinced that Acceptable Solution A1 was satisfied since the demolition of the house would result in the loss of traditional building character within the Demolition Control Precinct, which in this circumstance was at least meaningful.

The court consequently set aside the decision of the Registrar and dismissed the appeal.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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