In brief

The case of Di Carlo v Brisbane City Council [2019] QPEC 4 concerned an appeal commenced by the applicant against the decision of the Brisbane City Council (Council) to refuse a development application for a development permit for building work for demolition of a dwelling house in the Traditional Building Character Overlay of the Council's City Plan 2014 (Planning Scheme).

The Council argued that the development did not comply with Performance Outcome 7 (PO7) of the Traditional Building Character (Demolition) Overlay Code (Demolition Code) and therefore the dwelling house ought not be demolished. 

The Court found that the development application did not comply with PO7 of the Demolition Code but did not accept the Council's submission that PO7 provided a "blanket prohibition".

The Court found that it was appropriate to consider the Demolition Code as a whole, and held that it was appropriate to exercise its discretion under section 60(2)(b) of the Planning Act 2016 to approve the development application despite its non-compliance with PO7. 

The Court held that the development complied with Performance Outcome 5(c) (PO5(c)) and Acceptable Outcome 5(d) (AO5(d)) of the Demolition Code for the reasons that the dwelling house did not contribute to the traditional building character of the part of the street in which it was situated as the street itself lacked traditional character. The Court therefore allowed the appeal.

Court found that a planning instrument must be read as a whole to determine the true intent of its provisions

The Council submitted that the dwelling house ought not be demolished as the dwelling house exhibited traditional building character and was structurally sound. The Council argued that because of this, the development failed to comply with PO7 of the Demolition Code. PO7 relevantly provides that demolition or removal of a building constructed in 1946 or earlier involves a building which:

"(a) does not represent traditional building character;
(b) is not capable of structural repair;
(c) is not a building constructed in 1946 or earlier.
"

The Court accepted the Council's submission that the dwelling house was structurally sound and exhibited a traditional building character. However, the Court found that the development did not comply with PO7 of the Demolition Code.

The Court however applied the principles for construing a planning document set out in Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147 (Zappala). In that case, the Court held that planning documents must be construed by reference to the language of the instrument viewed as a whole and with the intention to achieve balance between the outcomes. Applying the principles in the Zappala case, the Court held that the Demolition Code must be read as a whole in order to determine whether or not the development application ought be approved. The Court found the primary objective of the Demolition Code is to protect residential buildings that either individually or collectively contribute to the Traditional Building Character Overlay where it forms part of a character streetscape and compliments the traditional building character buildings constructed in 1946 or earlier. 

Applying the principles in the Zappala case, the Court held that there was no "meritorious planning basis" for PO7 to provide a "blanket prohibition" to prevent the demolition of a dwelling house constructed in 1946 or earlier. 

In addition, the Court noted that the development complied with PO5(c) and AO5(d) of the Demolition Code. PO5(c) relevantly provides that demolition or removal of a building constructed in 1946 or earlier involves a building which "does not contribute to the traditional building character of the part of the street within the Traditional Building Character Overlay". Additionally AO5(d) relevantly provides that demolition or removal of a building constructed in 1946 or earlier involves a building which "is in a section of the street within the Traditional Building Character Overlay that has no traditional character". The Council conceded that the development complied with PO5(c) and AO5(d) of the Demolition Code. 

On the basis that the development failed to comply with PO7 of the Demolition Code but complied with PO5(c) and AO5(d) of the Demolition Code, the Court found that it was appropriate to exercise its discretion under section 60(2)(b) of the Planning Act 2016 to approve the development application even if the development did not comply with some of the assessment benchmarks.

Court exercised its discretion under section 60(2)(b) of the Planning Act 

Section 60(2)(b) of the Planning Act 2016 relevantly provides that the Court may decide to approve a development application even if the development does not comply with some of the assessment benchmarks.

The Court found that as the Applicant had complied with PO5(c) and AO5(d) of the Demolition Code, the appeal ought be allowed. 

Conclusion

The Court allowed the appeal despite the non-compliance with PO7 of the Demolition Code and approved the development application.

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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