In brief

The case of Blu Con Pty Ltd v Brisbane City Council [2020] QPEC 32 concerned an appeal to the Queensland Planning and Environment Court (Court) against the refusal by the Brisbane City Council (Council) of a development application for a development permit for the clearing of vegetation, and for the partial demolition and extension of a house described as "Mount Lang" (Proposed Development), which had been built on three lots at Bulimba during the interwar period, circa 1920, by the Harrison family. 

The relevant assessment benchmarks in the appeal related to the preservation and maintenance of important historical and heritage places under the Brisbane City Plan 2014 (Planning Scheme).

The Court dismissed the appeal, holding that the Court had not been directed to any relevant matter under section 45(5)(b) of the Planning Act 2016 (Planning Act), and that the part of the Proposed Development in respect of partially demolishing and extending Mount Lang was noncompliant with the assessment benchmarks and that the clearing of the vegetation was to enable the development of Mount Lang. 

Background

The Proposed Development in respect of Mount Lang included the following: 

  • Demolishing and reconstructing parts of Mount Lang's internal fittings and rooms. 

  • Relocating Mount Lang to be contained on two lots. 

  • Raising and constructing internal rooms underneath Mount Lang. 

  • Reconstructing the exterior frontage and stairs of Mount Lang.

  • Adding new landscaping to the whole of Mount Lang.

  • Constructing a garage, an outdoor area, a pool, and a pool house at the rear of Mount Lang. 

Planning Scheme 

The subject land is identified as a place of local heritage in the Heritage Overlay under the Planning Scheme because the Council had identified in a heritage citation prepared under the Heritage Planning Scheme Policy (Heritage Policy) the cultural heritage values that are applicable to Mount Lang (Heritage Citation).

The Heritage Citation identifies the following cultural heritage values of the Heritage Policy as being applicable to Mount Lang:

  • "it is important in demonstrating the evolution or pattern of the city’s or local area’s history".

  • "it has a special association with the life or work of a particular person, group or organisation of importance in the city’s or local area’s history".

The Heritage Citation stated inter alia the importance of Mount Lang in demonstrating Bulimba's history and its residential growth during the interwar period, and Mount Lang's special association with the Harrison family who is of importance to Bulimba's history and after whom Harrison Street is named. 

The Planning Scheme includes the following in respect of the protection of locations of cultural heritage significance: 

  • Strategic Framework – Specific outcome 19 and land use strategy 19, which relevantly states Brisbane's buildings and places that are important to the city's history are to be protected and that places and precincts with cultural heritage significance or special significance to Aboriginal people are to be identified and protected in accordance with the Burra Charter

  • Heritage Overlay Code – The overall outcome and the performance outcomes, which relevantly states that development is to provide for the future protection of, not cause damage to, and take account of, cultural heritage significance of a local heritage place. 

  • Bulimba District Neighbourhood Plan Code – The overall outcome, which relevantly states that the history of the neighbourhood plan area is to be protected and places of cultural heritage significance are to be conserved to "preserve the area's identity". 

Proposed Development offends the assessment benchmarks

The Court observed that the specific protection given to Mount Lang by it being included as a place of local heritage afforded it greater protection than it otherwise would have had under the Planning Scheme.

The Court acknowledged the residential nature of Mount Lang and accepted the desire to change it to be more suited to a contemporary residential use, but nevertheless held that the Proposed Development would be noncompliant with the identified assessment benchmarks. 

The Court held that the Proposed Development "showed little respect for the cautious approach to change urged by the Burra Charter", which, in Article 3, states an approach of "changing as much as necessary but as little as possible". 

Although the Court held that the vegetation on the subject land was not afforded specific additional protection by the Heritage Citation, the Court held that the development application for the development permit to clear the vegetation was made in the context of the development proposed for Mount Lang.

The Court therefore held that the extent to which the Proposed Development "offend[ed]" the assessment benchmarks in the circumstances was simply inappropriate, 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 2020.

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