In brief

The case of Irvine v Brisbane City Council [2019] QPEC 50 concerned an appeal commenced by a landowner (Landowner) against the decision of the Brisbane City Council (Council) to refuse a development application for a development permit for building work for the demotion of a dwelling house at Hawthorne in the Traditional Building Character Overlay (TBC Overlay) of the Brisbane City Plan (City Plan).

The Planning and Environment Court (Court) found that the proposed development failed to comply with the relevant assessment benchmarks of the City Plan and held that it was not appropriate to approve the development application.

Issues

The Court considered the following issues:

(a) whether the subject house exhibits a traditional building character and contributes to the traditional streetscape;

(b) whether the Court ought to engage its discretionary power under section 60(2)(b) of the Planning Act 2016 (Planning Act) to approve the proposed development.

Legislative regime 

The Court noted that the proposed development was code assessable under the City Plan, and therefore considered the following provisions of the Planning Act:

Section 45(3) – "code assessment must be carried out only against the assessment benchmarks in a categorising instrument for the development and having regard to any matters prescribed by regulation."

Section 59(3) – "the assessment manager's decision must be based on the assessment of the development carried out by the assessment manager."

Section 60(2) – "to the extent that the application involves development that requires code assessment, the assessment manager, after carrying out the assessment ¬– (a) must decide to approve the application to the extent that the development complies with all of the assessment benchmarks for the development; and (b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks …"

The Court then went on to consider the relevant assessment benchmarks under the City Plan.

The Court noted that the issue at the heart of the dispute was whether the proposed development complied with Overall Outcomes 2a and 2b and Performance Outcomes 5 and 7 of the Traditional Building Character (Demolition) Overlay Code (Demolition Code). Relevantly, Overall Outcomes 2a and 2b of the Demolition Code states as follows:

"2(a) Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional Building Character Overlay their traditional character and traditional building character." 

"2(b) Development protects a residential building or a part of a building constructed in 1946 or earlier where it forms a part of a character streetscape comprising residential dwellings constructed in 1946 or earlier nearby in the street within the TBC Overlay."

Performance Outcomes 5 and 7 of the Demolition Code state as follows:

"5 Development involves a building which:

(a) does not represent traditional building character; or

(b) is not capable of structural repair; or

(c) does not contribute to the traditional building character of that part of the street within the Traditional building character overlay."

"7 Development involves a building which:

(a) does not represent traditional building character; or

(b) is not capable of structural repair; or

(c) is not a building constructed in 1946 or earlier."

The Court went on to consider section 8.2.21.2 (Purpose) of the Demolition Code, which states that "the purpose of the Demolition Code is to implement the policy intent of the Strategic Framework and promote development that protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character." The Court stated that the Strategic Framework of the City Plan makes it clear that houses built in 1946 or earlier that make a contribution to the character of Brisbane are to be preserved.

Court found that the subject premises is of a traditional character and contributes to the traditional streetscape character of the surrounding locality within the TBC Overlay 

The Court accepted the Landowner's and the Council's respective expert evidence that the subject premises exhibited a traditional building character and is structurally sound. 

The Court additionally accepted the Council's expert's evidence that the subject premises was constructed in either 1939 or early 1940, and makes a significant contribution to the immediate locality due to its prominent location on the corner of the street. Furthermore, the Court observed that all premises in the immediate vicinity, save for one premises, are of a traditional building character and are constructed in 1946 or earlier. 

The Court therefore concluded that the proposed development conflicts with the applicable assessment benchmarks of the City Plan as the dwelling exhibits traditional building character and contributes to the traditional building character and traditional character of the streetscape.

Court found that it would be inappropriate to approve the proposed development

The Landowner submitted that the discretion of the Court under section 60(2)(b) of the Planning Act ought to be engaged to approve the proposed development in circumstances where the proposed development failed to comply with the relevant assessment benchmarks. The Court observed that it would be inappropriate to approve the proposed development using the Court's discretion under section 60(2)(b) of the Planning Act, when the evidence clearly established that the subject premises is of a traditional building character and contributes to the immediate locality within the TBC Overlay.

The Court therefore 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 2020.

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