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Mypropertyprofession Pty Ltd v Brisbane City Council QPEC 43
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Mypropertyprofession Pty Ltd v Brisbane City Council  QPEC 43
MYPROPERTYPROFESSION PTY LTD
BRISBANE CITY COUNCIL
1761 of 2017
Planning and Environment Court
18 July 2017, ex tempore
18 July 2017
I declare that the demolition of that part of the existing dwelling that is behind the highest and rearmost part of the roof is not exempt development
ENVIRONMENT AND PLANNING – Demolishing part of a pre-1946 dwelling – Whether the demolition of that part of the existing dwelling that is behind the highest and rearmost part of the roof, is exempt development pursuant to the respondent’s planning scheme
M A Williamson for the appellant
Connor O'Meara for the appellant
Brisbane City Legal Practice for the respondent
- This is an appeal against a giving of an enforcement notice by the Respondent in respect of land situated at 78 Allen Street, Hamilton. The Appellant was granted a development approval on 23 December 2015 for preliminary approval to carry out building works for partial demolition and relocation of a pre-1946 dwelling and multiple dwellings (three units).
- The enforcement notice states that the Respondent reasonably believes that the Appellant is committing a development offence by unlawfully demolishing part of the pre-1946 dwelling. The enforcement notice also requires the immediate cessation of all building work on the premises except for those works required to stabilise the pre-1946 dwelling.
- The parties have agreed to limit the ambit of the enforcement notice pending the final determination of the appeal. To determine the precise scope of the enforcement notice, the parties request that the Court issue a declaration in respect of a preliminary point of law which is identified in the following terms: “whether the demolition of that part of the existing dwelling that is behind the highest and rearmost part of the roof, is exempt development”.
- The determination of this preliminary legal point depends upon the correct construction of various provisions of the Respondent’s planning scheme, City Plan 2014 (“City Plan”). Pursuant to section 5.3.2(3): “Building work and operational work are accepted development, unless the tables of assessment state otherwise or unless otherwise prescribed in the Act or the Regulation”.
- Relevantly table 5.10.21 provides for levels of assessment for land within the traditional building character overlay. It is uncontentious that the land in question is within the traditional building character overlay and that the dwelling was constructed in 1946 or earlier. Pursuant to table 5.10.21 building work involving the demolition of “the components of a building constructed in 1946 or earlier forward of a point which is the highest and rearmost part of the roof” is code assessable. Conversely “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” is also code assessable. It is submitted by the Appellant that the demolition of the part of the pre-1946 behind the highest and rearmost part of the roof is exempt development as a consequence of the former provision within table 5.10.21. This is because of section 5.3.2(3). Conversely, it is submitted by the Respondent that the development approval constitutes building work involving a multiple dwelling and, as a consequence of the latter provision in table 5.10.21, the demolition of that part of the pre-1946 dwelling that is behind the highest and rearmost part of the roof remains code assessable.
- The development approval states that it is for “Demolition and Multiple Dwelling.” It contemplates the partial demolition of the pre-1946 dwelling, the repositioning of it within the land and the construction of a new multiple dwelling building in the form of a duplex, beside it which integrates with it, and the change of the use of the pre-1946 dwelling to a multiple dwelling. The approved plans show that not only are significant building works contemplated by the development application, which include the construction of an additional story underneath the pre-1946 dwelling after it has been relocated, but also that it will interconnect with the new building resulting in a multiple dwelling use covering three distinct but joined buildings including the new double-story, relocated and rebuilt, pre-1946 dwelling. It is also noteworthy that the approved plans show a limited area of demolition at the very rear of the pre-1946 dwelling, but that is all.
- In construing the relevant provisions of City Plan, it is important to have regard to the applicable principles of statutory interpretation which were noted by Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82 at 94-95. In order to give effect to both of the relevant provisions of table 5.10.21 identified above, it is necessary to read City Plan as a whole. It is true that if only demolition work was contemplated by the development approval, the traditional building character (demolition) overlay code would apply and only the parts of the pre-1946 dwelling forward of a point, which is the highest and rearmost part of the roof, would be code assessable. However, the development approval before me goes much further. It involves significant building work to renovate and reposition the pre-1946 dwelling and incorporate it into a multiple dwelling use. In these circumstances, the building work is code assessable and the traditional building character (design) overlay code applies.
- It follows that the demolition of that part of the existing pre-1946 dwelling that is behind the highest and rearmost part of the roof is not exempt development. I therefore declare that the demolition of that part of the existing dwelling that is behind the highest and rearmost part of the roof is not exempt development.
- Published Case Name:
Mypropertyprofession Pty Ltd v Brisbane City Council
- Shortened Case Name:
Mypropertyprofession Pty Ltd v Brisbane City Council
 QPEC 43
18 Jul 2017