In brief

The case of Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42 concerned an Originating Application (Application) to the Planning and Environment Court (Court) to re-enliven a lapsed demolition approval or, in the alternative, have a demolition approval revived so that the Applicant could apply to the Council for an extension of the currency period.

On 8 September 2016, a development approval was granted for demolition of the subject house. The development approval lapsed on 8 September 2018.

The Applicant had made a new development application for a demolition approval and requested that the development application be assessed against the superseded planning scheme, which the Council had ultimately refused. The Applicant then made a development application for demolition to be assessed against the current planning scheme, but suspended the development application in order to conduct these proceedings.

The Applicant sought the following relief:

“(a) a declaration, pursuant to section 11 of the [Planning and Environment Court Act 2016] PECA, that the building works the subject of the Development Approval, being the demolition (the “Demolition”) of a pre-1946 house (the “House”) on the subject land, did not substantially start within the currency period for the Demolition Development Approval (the “Currency Period”);

(b) a declaration, pursuant to section 11 of the PECA, that the Applicant failed to make an application under section 86 of the Planning Act 2016 (the “PA”), prior to the expiry of the Currency Period;

(c) a declaration, pursuant to section 11 of the PECA, that, as a result of the matters set out in paragraphs (a) and (b) above, the Demolition Development Approval lapsed, under 341 of the Sustainable Planning Act 2009 (the “SPA”) or section 85 of the PA, upon the expiry of the Currency Period;

(d) a declaration, pursuant to section 11 of the PECA, that:

(i) the non-compliance with section 341 of the SPA or section 85 of the PA occasioned by the failure to substantially start the Demolition within the Currency Period ought to be excused; and/or

(ii) the non-compliance with section 86(1) of the PA occasioned by the failure to make an application under section 86 of the PA prior to the expiry of the Currency Period ought to be excused;

(e) an order, pursuant to section 11 of the PECA and/or section 37 of the PECA, that:

(i) the Demolition Development Approval be taken not to have lapsed and the Currency Period be extended, or taken to have been extended , until a date that provides the Applicant with a reasonable opportunity to obtain a development permit for the Demolition (consistent with the Demolition Development Approval) and start the Demolition; or 

(ii) the Demolition Development Approval be taken not to have lapsed and the Currency Period be extended, or taken to have been extended, until a date that provides the Applicant with a reasonable opportunity to make an application under section 86 of the PA for extension of the Currency Period".

In order to determine the Application, the Court had to consider the following issues:

  • Should declarations (a), (b) and (c) be made?

  • Should the relief sought in paragraphs (d) and (e) be granted?

The Court held that the grounds which the Applicant relied upon failed to establish that the lapsed demolition approval should be revived and thus refused the Application. 

Should declarations (a), (b) and (c) be made?

In relation to declaration (a), the Court stated that the Applicant did not identify how the declaration resolves a genuine matter of concern. This was because it was an undisputed fact that the demolition did not substantially start within the currency period.

In relation to declaration (b), the Court stated that it was an undisputed fact that the Applicant failed to make an extension application under section 86 of the Planning Act 2016 (PA).

Lastly, for declaration (c), the Court stated that both parties accepted that the demolition approval had lapsed.

Should the relief sought in paragraphs (d) and (e) be granted?

In order for the Court to determine whether the relief sought in paragraphs (d) and (e) could be granted, the Court had to consider the following considerations which were relied upon by the Applicant. 

Absent the relief, the multiple dwelling approval cannot be utilised

The Court determined that the Applicant did not establish that this ground warranted the relief sought as the multiple dwelling approval could not be implemented without demolition of the subject house. 

The Court further stated that demolition could not lawfully occur without a preliminary approval for building work.

The Council was supportive of the judgment

The Applicant submitted that since the Council consented to a previous judgment made on 8 September 2016, it demonstrated that the Council accepted that the proposed demolition was not in conflict with the Traditional building character (demolition) overlay code (Overlay Code), which was in force in the Brisbane City Plan 2014 (version 2) (City Plan). 

The Court stated, however, that this was not necessarily correct as consequent amendments to the City Plan have resulted in a strengthened character protection. The Court therefore did not accept the Applicant’s submission in this regard. 

The multiple dwelling approval envisages that demolition will occur

The Applicant submitted that by issuing the multiple dwelling approval, the Council had accepted a planning outcome which allowed for the demolition of the subject house, the partial demolition of the dwelling house on the adjoining land, and the construction and use of the proposed multiple dwellings on the subject land and the adjoining land.

The Court disagreed with the Applicant’s argument as the multiple dwelling approval did not authorise the carrying out of the demolition of the subject house, as the only demolition it approved was the partial demolition of the dwelling house on the adjoining land. 

The multiple dwelling approval has not lapsed

The Court stated that this ground was undisputed. However, the Court held that this ground alone was not a compelling reason to grant the relief sought.

The subject house is a concrete tile and timber house in an austerity style

With respect to this issue, the Court considered the evidence from heritage architects for the Applicant and Council. 

Both experts agreed that the subject house had “austerity style” features. The Court was therefore satisfied from the evidence provided by the experts that the subject house was an austerity style concrete tile and timber house.

The Applicant further submitted that given the form and state of the subject house, there was no reason as to why the demolition should not proceed, as the subject house was not identified as a traditional building in the Traditional building character planning scheme policy.

The Court considered overall outcomes (2)(a), (d) and (e) of the Overlay Code and determined that there was an arguable case that the current Overlay Code seeks to protect pre-1947 houses in the austerity style. The Court therefore determined that this ground does not support the grant of relief sought.

The subject house is not “timber and tin”

The Court was satisfied that the subject house was not “timber and tin” as described in the Overlay Code.

Extensive modifications to the subject house compromise its traditional appearance

Over the past 80 years the subject house had been modified. The most contentious modification of the subject house concerned the original roof material. 

The Court had concerns in relation to the evidence provided by the heritage architect for the Applicant. This was because the heritage architect for the Applicant did not disclose all of the material facts on which the expert's opinion was based in the expert's affidavit and therefore compromised the just and expeditious resolution of the issues presented. 

The Court further noted that there was no conclusive evidence about whether the concrete tiles were original and therefore the Court was not prepared to determine this issue.

The Applicant has taken steps and incurred significant expense 

The Applicant submitted that it had incurred considerable expense in progressing the development. The Applicant relied upon the evidence of Mr Pietrobon, a consultant for the Applicant, who failed to provide supporting documents to prove the expenses which were alleged, and also did not disclose the rental income received since 2016 for the subject house and the adjoining dwelling house.

The Court therefore did not place weight on this ground. 

The Applicant has incurred cost penalties from contractors engaged to commence the development works 

The evidence on this issue was limited to that given by Mr Pietrobon who stated “…the Applicant had selected contractors to commence works for the Proposed Development. However, the engagement of those contractors has been deferred pending the outcome of this proceeding.

From this statement alone, the Court could not place weight on this ground. 

The Applicant would be forced to incur a significant financial burden

The Court stated that the Applicant did not identify the basis on which it asserted that it would be forced to incur a significant financial burden. Therefore, the Court could not place weight on this ground. 

If a request to extend the currency period had been made, it is likely to have been granted

The Applicant submitted that, as the multiple dwelling approval envisaged the demolition of the subject house, the Council would have likely accepted the extension application. 

The Court disagreed with this argument as the argument was mere speculation.

Absence of substantial or unexplained delay

The Applicant further submitted that there had been no substantial or unexplained delay in attempting to further its rights under the demolition approval. 

The Court stated, however, that the Applicant did not take any steps to progress the demolition of the subject house until early 2018, which was almost two years after the approval was given. 

The Applicant has acted with reasonable expedition to rectify the situation

The Court stated that the Applicant did not act with reasonable expedition to rectify the situation as it did not pursue an extension application before the approval lapsed, and instead pursued a new development application for the demolition approval assessable against the superseded planning scheme, and a new development application for demolition approval assessable against the current planning scheme. 

Conclusion

The Court held that the grounds, which were relied upon by the Applicant, were insufficient to overcome the sound town planning purpose and public interest served by repeating the statutory assessment and decision making process with respect to the proposed demolition. 

The Court therefore dismissed the 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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