Planning and Environment Court considers the full extent of a development approval in declaring that the demolition of part of a pre-1946 dwelling, which in isolation would have been exempt development, was not in fact exempt development

by Ian Wright, Nadia Czachor, Thomas Massey
30 November 2017

In brief

The case of Mypropertyprofession Pty Ltd v Brisbane City Council [2017] QPEC 43 involved an application to the Planning and Environment Court about a preliminary point of law, being whether the demolition of part of a pre-1946 house at Hamilton was exempt development. 
 
The Applicant was given a preliminary approval to carry out building work for partial demolition and relocation of a house and multiple dwellings (three units) in late 2015. The Council issued an enforcement notice requiring the immediate cessation of all building work on the premises except for those works required to stabilise the house, which was appealed. In the course of the appeal, the parties asked the Court to make a declaration about the applicable level of assessment for the "demolition of that part of the existing dwelling that is behind the highest and rearmost part of the roof" (see [3]).
 
The issue arose as a consequence of the interpretation of two applicable provisions in the levels of assessment tables.  The Court applied the applicable principles of statutory interpretation, as noted in Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82, and gave effect to both of the relevant provisions by reading the planning scheme as a whole. In doing so, the Court declared that the demolition of the part of the subject house behind the highest and rearmost part of the roof was not exempt development.

The parties sought a declaration about the interpretation of two applicable levels of assessment 

The Brisbane City Plan 2014 relevantly provides in section 5.3.2(3) that "[b]uilding work and operational work are accepted development, unless the tables of assessment state otherwise or unless otherwise prescribed in the Act or the Regulation."
 
It was relevant to the determination of the level of assessment that the land was within the Traditional building character overlay and that the subject house was constructed in 1946 or earlier. The relevant levels of assessment table stated as follows:
  • "the components of a building constructed in 1946 or earlier forward of a point which is the highest and rearmost part of the roof" was code assessable; and
  • "building working involving a dual occupancy, dwelling house, multiple dwellings or rooming accommodation, where not in the Local heritage place sub-category or the State heritage place sub-category of the Heritage overlay"  was also code assessable. 
The Appellant submitted that given the operation of the former provision and section 5.3.2(3), the demolition of the part of the house behind the highest and rearmost part of the roof was exempt development. 
 
The Council submitted that the development approval constituted building work involving a multiple dwelling and, given the operation of the Brisbane City Plan 2014 as a whole, the demolition behind the highest and rearmost part of the roof was code assessable. 

The Court considered the extent of the building work and read the planning scheme as a whole to determine the applicable level of assessment

The Court noted that the approved plans showed “significant building works” and pointed, in particular, to the following:
  • the partial demolition of the house;
  • the repositioning of the house and the construction of an additional story underneath it;
  • the interconnection between the relocated house and the new building resulting in a multiple dwelling use covering three distinct but joined buildings.
The Court was satisfied that if the development approval was just for demolition work, only the demolition of parts of the house forward of the highest and rearmost part of the roof would be code assessable. However, the Court found that the development approval went further than just seeking demolition.  
 
In this respect, the Court applied the applicable principle of statutory interpretation as stated in Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82 and read the City Plan 2014 as a whole in order to give effect to its provisions. The Court determined that the development approval involved demolition as well as “significant building work to renovate and reposition the pre-1946 dwelling and incorporate it into a multiple dwelling use”. As such, the Court determined that the building work was code assessable and it followed that the demolition of part of the house behind the highest and rearmost part of the roof was not exempt development. 

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