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Ficca v Brisbane City Council[2022] QPEC 52

Ficca v Brisbane City Council[2022] QPEC 52

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Ficca & ors v Brisbane City Council [2022] QPEC 52

PARTIES:

MASSIMO FICCA, GIULIA FICCA and MAFIC INVESTMENTS PTY LTD ACN: 108 935 244
(Applicants)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO

936/2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

8 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22-23 August 2022. Final written submissions - 1 September 2022.

JUDGE:

Muir DCJ

ORDER:

  1. The Appeal is allowed.
  2. I will hear further from the parties, if necessary, as to the appropriate form of order or any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL – DEMOLITION – where appellants sought a development permit for the demolition of a pre-1947 dwelling house – where the development application was refused by the respondent Council – where the respondent argued the subject dwelling represents traditional building character – where the development application is to be assessed against the Traditional building character (demolition) overlay code under City Plan 2014 – whether the house has the appearance of being constructed in 1946 or earlier – whether demolition would result in loss of traditional building character – whether the demolition of the house will  result in any meaningful or significant loss of traditional building character – whether house individually, or collectively contributes to giving the areas in the Traditional building character overlay their traditional character and traditional building character

CASES:

Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987

Hamilton v Brisbane City Council [2016] QPELR 592

Kanesamoorthy & Anor v Brisbane City Council [2016] QPELR 784

Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62

Klinkert v Brisbane City Council [2018] QPELR 941

Law v Brisbane City Council [2021] QPEC 065

Lonie v Brisbane City Council [1998] QPELR 209

Marriott v Brisbane City Council [2015] QPELR 910

Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328

Se Ayr v Brisbane City Council [2016] QPELR 223

Taylor & Anor v Brisbane City Council [2020] QPELR 1080

Traspunt No. 14 Pty Ltd v Morton Bay Regional Council & Anor [2021] QPEC 4

Williams v Brisbane City Council [2022] QPELR 580

LEGISLATION:

Planning and Environment Court Act 2016 (Qld) ss. 43, 45(1)(a), 46(2)

Planning Act 2016 (Qld) s. 45(3), 59(3)

COUNSEL:

H. M Stephanos for the Appellants

J Bowness for the Respondent

SOLICITORS:

Keypoint Law for the Appellants

City Legal for the Respondent

Overview

  1. [1]
    This is an appeal by Massimo Ficca, Giulia Ficca and Mafic Investments Pty Ltd ACN: 108 935 244 (the appellants) against a decision by the Brisbane City Council  refusing its code assessable development application lodged on 21 January 2022 to demolish (in its entirety), a pre-1947 dwelling house located on land at 56-58 MacDonald Street, Norman Park. 
  2. [2]
    The appeal was commenced on 26 April 2022 (after a decision notice refusing the development application was served upon the appellants on 22 March 2022 ) and falls to be determined pursuant to the provisions of the Planning Act 2016 (Qld) and the Planning and Environment Court Act 2016 (Qld).
  3. [3]
    It is uncontroversial that the house was constructed prior to 1947 and the land is included in the Traditional building character overlay in the relevant Council planning scheme – City Plan 2014 (version 23). The land is therefore subject to a number of provisions in the City Plan which seek to protect the traditional character of Brisbane’s older suburbs. The experienced heritage experts agree that the house represents traditional building character. It is the nature and type of that traditional building character which lies at the core of the dispute between them (and therefore the parties).
  4. [4]
    On the one hand, the Council submitted that the house ought to be protected because its demolition would result in an unacceptable loss of traditional building character from MacDonald Street. Indeed, Council submitted that the house is “precisely the type of dwelling house which the Traditional building character overlay is intended to protect”.[1] On the other hand, the appellants submitted that the demolition of the house will not result in any meaningful or significant loss of traditional building character in the street or its surrounds.
  5. [5]
    For the reasons that follow, I am satisfied that the demolition of the house will not result in unwarranted material loss of traditional building character in any relevant sense and therefore that the appeal ought to be allowed.     

Relevant Statutory Framework

  1. [6]
    The appeal is by way of hearing anew with the court standing in the shoes of the assessment manager.[2] The appellants bear the onus of establishing the appeal should be upheld.[3] 
  2. [7]
    The starting point in determining the appeal is s. 60 of the Planning Act which relevantly applies to development applications requiring code assessment as follows:

“60 Deciding development applications

…

  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

Examples—

  1. 1An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks.
  1. 2An assessment manager may approve an application for development that does not comply with some of the benchmarks if the decision resolves a conflict between the benchmarks and a referral agency’s response.
  1. (c)
    may impose development conditions on an approval; and
  1. (d)
    may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions…”

[Emphasis added]

  1. [8]
    The discretion that emerges from an ordinary reading of s. 60(b) is a broad and flexible one.[4] Whether any particular inconsistency is a determinative factor will depend on its nature and extent, and the overall circumstances of the case.[5]  This requires a balancing exercise (of sorts) to be undertaken in the context of the facts and circumstances of the case.
  2. [9]
    Code assessment must be carried out against the assessment benchmarks in a categorising instrument for a development and with regard to any matters prescribed by regulation.[6]  In the present case it is agreed (and I accept) that Version 23 of City Plan was in force when the development application was properly made.[7]
  3. [10]
    Pursuant to City Plan, the land:
    1. (a)
      is included within the Character Residential Zone (CR1); and
    2. (b)
      is situated within the Traditional building character overlay.[8]
  4. [11]
    It follows from these provisions that any building work on the land (which includes the demolition of a pre-1947 house) is an assessable development to be assessed against the Traditional building character (demolition) overlay code (Demolition Code). Under City Plan, to achieve compliance with the Demolition Code the proposed development must comply with the “purpose, overall outcomes and the performance outcomes or acceptable outcomes of the code”.[9]
  5. [12]
    The provisions of the Demolition Code raised in this case are as follows:
    1. (a)
      Overall outcome (2)(a), which provides that:

“ 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.”

  1. (b)
    PO5 and AO5 as set out in the table below:

Performance Outcomes

Acceptable Outcomes

Section B – Demolition or removal of a building constructed in 1946 or earlier

General performance outcomes and acceptable outcomes if not in the Latrobe and Given Terraces neighbourhood plan area or the City west neighbourhood plan area or the Spring Hill neighbourhood plan area

PO5

Development involves a building which:

  1. a.
    does not represent traditional building character; or
  1. b.
    is not capable of structural repair; or
  1. c.
    does not contribute to the traditional building character of that part of the street within the Traditional building character overlay

AO5

Development involves a building which:

  1. a.
    has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; or
  1. b.
    an engineering report prepared by a Registered Professional Engineer Queensland which certifies that the building is structurally unsound and not reasonably capable of being made structurally sound; or
  1. c.
    if demolished will not result in the loss of traditional building character; or
  1. d.
    is in a section of the street within the Traditional building character overlay that has no traditional character.

Note – for the purpose of this code, comparative analysis of an existing dwelling constructed in 1946 or earlier against the current timber framing standards is not considered to demonstrate ‘structurally unsound’.

[Emphasis added]

  1. [13]
    City Plan does not define the terms “traditional character” or “traditional building  character” but the Demolition Code expressly refers to the Traditional building planning scheme policy for “guidance”.[10]  This policy is to be used as a flexible guide and “no more than a guide”.[11] The parties each referred to different sections of this policy.
  2. [14]
    The appellants referred to s. 2.1(1) which provides as follows:

“The traditional character of areas and the traditional building character of buildings, within the Traditional building character overlay, is a combination of one or more of the following elements:

  1. (a)
    traditional building form and roof styles;
  1. (b)
    traditional elements, detailing and materials;
  1. (c)
    traditional scale;
  1. (d)
    traditional setting.”
  1. [15]
    The Council referred to s. 2.2(3) which provides as follows:

“Other traditional building character forms exhibit overseas architectural influences on Brisbane’s residential design. These forms occurred primarily during the inter-war period and are often influenced by but not limited to art deco Spanish mission, Californian bungalow and Georgian.”

Issues in Dispute

  1. [16]
    The onus is on the appellants to show that the demolition complies with one or more of the relevant performance and acceptable outcomes under the Demolition Code. This code protects character buildings built in 1946 or earlier because “of their contribution to the distinctive traditional character of certain parts of Brisbane, and their link with Brisbane’s history.”[12] But as an ordinary reading of the Demolition Code reveals - that protection is not absolute.  Plainly, the Demolition Code is not intended to prohibit demolition simply because a building presents with traditional character.
  2. [17]
    The parties agreed that the following four issues potentially arise for determination in this case:[13]
    1. (a)
      Issue One: whether the proposed development complies with AO5 of the Demolition Code.
    2. (b)
      Issue Two: whether the proposed development complies with PO5 of the Demolition Code.
    3. (c)
      Issue Three: whether the proposed development complies with overall outcome 2(a) of the Demolition Code; and
    4. (d)
      Issue Four: if the proposed development does not comply with PO5, AO5, or overall outcome 2(a) of the Demolition Code, the Court should consider whether the proposed development nonetheless ought to be approved in the exercise of the Court’s discretion.
  3. [18]
    As emerges from the agreed issues list in this case, the appellants are required to satisfy this Court that the house is: 
    1. (a)
      a building which does not have the appearance of being constructed in 1946 or earlier [AO5(a)]; or
    2. (b)
      a building that if demolished, will not result in the loss of traditional building character [AO5(c)]; or
    3. (c)
      a building in a section of the street within the Traditional  building character overlay that has no traditional character [AO5(d)]; or
    4. (d)
      a building which does not contribute to the traditional building character of that part of the street within the Traditional building character overlay [PO5(c)]; and
    5. (e)
      a building that does not, individually, or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character [OO2(a)]. 
  4. [19]
    To assist in an understanding and determination of these issues the Court heard evidence from two respected and obviously experienced heritage architects with specialised knowledge, training and experience. Mr  Elliott was retained by the appellants and Mr Kennedy by the Council.  I also had the benefit of a physical site viewing of the house from various locations in MacDonald Street and Katherine Street. This inspection gave me some perspective of the house (and the vegetation at the front) and its positioning within the relevant streetscape. Although of course I understand the limited use of such a viewing and that I must act only on the evidence.
  5. [20]
    Before turning to discuss the agreed issues it is necessary to set out the facts about the house and its locality. 

The Factual Context

  1. [21]
    The house is located in MacDonald Street which sits in a pocket of the inner-city Brisbane suburb of Norman Park. Norman Park was progressively developed as a residential area from the late 1800s. The house was constructed under the Workers Dwelling Scheme in 1932. It is lowset, timber built in form, with a tiled pyramidal roof on built on land which has a total area of approximately 830m2. The key design features of the house as described by Mr Kennedy are:[14]
  1. (a)
    its plain, symmetrical façade;
  1. (b)
    a central entry, flanked on either side by multi-paned windows; and
  1. (c)
    its distinctive portico front entry with timber columns.
  1. [22]
    In refusing the Development Application, the Council described the house as the “Conventional Style” in the following way:[15]

“3. The existing pre-1947 Dwelling house displays traditional building character in built form which as a reference point is in the “Conventional style”. The roof from [sic] and detailing such as the windows and front entry represent character elements that form part of this type of building...”

  1. [23]
    Mr Kennedy described the house as a “fine” example of 1930s “Georgian” style traditional building character, and a house with “considerable” and an “abundance” of traditional character. But I found these descriptions difficult to reconcile with the fact that (as discussed below under the heading Issue One) the house does not exhibit many of the typical Georgian style features and is not easily recognisable as Georgian Style architecture.
  2. [24]
    Rather instructively (and somewhat consistent with my observations in the preceding paragraph) Council’s written submissions after trial sought to re-categorise the house as a “worker's cottage” with Georgian influences.[16] The reference to the house being a worker’s cottage arises (I assume) from the fact that the house was built under the Worker’s Dwelling Scheme. I reject the Council’s belated categorisation of the house as a “worker’s cottage” for the following three reasons:
    1. (a)
      First: the evidence was that the Worker’s Dwelling Scheme was simply a procurement process, to assist in funding the construction of a variety of houses - as depicted in the broad range of house types included in the respective Worker’s Dwelling Scheme catalogues tendered by Council.[17]
    2. (b)
      Secondly: there is no evidence that the house is a “worker's cottage”. Neither Mr Kennedy nor Mr Elliot described it in this way (in either their written or oral evidence).
    3. (c)
      Thirdly:  The evidence reveals that a “worker's cottage” is a form of timber and tin house, typically a bungalow form with a full width front verandah, raised on stumps with a tin roof.[18] The present house is certainly not aptly described in this way.
  3. [25]
    MacDonald Street is relatively straight and long with a gentle incline from Bennetts Road at its western end, veering north into Judd Street at its eastern context. The house is located about halfway along MacDonald Street on its northern side.  Katherine Street cuts through MacDonald Street near the house. The Katherine Street intersection is offset, so that the access of the southern leg is in line with the house, while the northern leg continues on through to McIlwraith Avenue (two lots to the east of the house).
  4. [26]
    The experts agreed and I accept that the relevant street perspective is that from both sides of MacDonald Street “between the properties extant at Nos. 9 & 12 at the western end and Nos. 71 & 80 to the east of the subject site”.[19]  This area is represented in agreed Figures 2, 3 and 4 of the Joint Expert Report.[20] The houses that are within the relevant extent of the street are marked on Figure 3 with either green or red dots as follows:
    1. (a)
      The red dots represent houses that are pre-1947 houses, afforded protection under the planning scheme;
    2. (b)
      The green dots represent houses that are post-1946 and are not protected under the planning scheme.
  5. [27]
    The experts focused their opinions on an agreed section of MacDonald Street from Bennetts Road eastward to beyond the Katherine Street intersection.  The aerial photography evidence reveals this section of MacDonald Street is made up of regularly shaped lots, improved by detached dwelling houses facing the street, sufficiently set back for front gardens or other landscaping to be established.  Within this section of the street, the existing built form is a mix of pre-1947 buildings (many of which have been renovated but retain their traditional building character) and post-1947 buildings.
  6. [28]
    There are 31 extant pre-1947 houses within the agreed section of MacDonald Street mapped by the overlay, out of 50 mapped houses in total. 
  7. [29]
    The land adjoins dwellings on either side, neither of which are considered pre-1947 houses.  But both lots share identical planning designations to the land being mapped within the Traditional building character overlay and character residential zone.  The house on the lot to the west of the land (54 MacDonald Street) was constructed between March 1946 and May 1947. Directly opposite the land are multiple houses constructed prior to 1947.  To the east, beyond the Katherine Street intersection and further uphill, the proportion of pre-1947 and post-1947 development evens out, although City Plan mapping remains the same.  The entirety of the agreed section of the street is included in the Traditional building character overlay except the houses at 32 and 34 MacDonald Street.
  8. [30]
    It is against this background that I now turn to address the agreed issues.

Issue One: Compliance with AO5 of the Demolition Code

  1. [31]
    The appellants’ primary position is that the demolition complies with AO5(c) of the Demolition Code (and, for the same reasons, PO5(c)).
  2. [32]
    Acceptable outcome AO5(c) requires an assessment of the contribution the house makes to the street in traditional building character terms. The house is obviously not a timber and tin traditional building character house,[21] but it is accepted that it  represents (some) traditional building character. That is not the end of the enquiry.
  3. [33]
    The question is whether a demolition will result in a loss of traditional building character that is meaningful, or significant, rather than any loss at all[22] (without losing sight of the overall outcomes and that character housing is important to the community and should be preserved).[23]  The loss is not measured against the post-1946 houses which are sympathetic to traditional building character but rather any loss must be measured in terms of the actual traditional building character in the street.[24]
  4. [34]
    The “loss of traditional building character” that is to be examined is from that part of the street within the Traditional building character overlay area.[25] Both parties submitted that the required assessment is from the perception of “an average person walking along the street and looking about”.[26]  But this submission overlooks that the average person would not be in a position to appreciate whether the house is of a  “Georgian style” or “influence” such that it can be categorised as having “traditional building character”. Although nothing necessarily turns on it in this case, it follows that care needs to be taken in advocating for a test that emerged from a consideration of different legislative provisions.[27]
  5. [35]
    Overall, on my assessment of the evidence, I am satisfied that the demolition of the house will not result in any meaningful or significant loss of traditional building character for the four reasons discussed below.  
  6. [36]
    First, the house does not display any of the typical characteristics identified in the planning scheme policy as elements of traditional building character because it:[28]
    1. (a)
      has no “core with an attached or integrated verandas”;
    2. (b)
      has a slab-on-ground construction, rather than being “raised above the ground on timber supports”;  
    3. (c)
      has no enclosed areas underneath “that generally maintain the street appearance of lightweight supports”;
    4. (d)
      (in terms of traditional elements, detailing and materials), has no “eaves, sunhoods, verandas, lattice screens, balustrades and batten panels that cast shadows and provide three-dimensional effects”; 
    5. (e)
      (save for the portico), presents as a flat façade to the street with no shade-forming elements;
    6. (f)
      is in a setting inconsistent with a “fairly uniform building line”; and
    7. (g)
      has a setback approximately double that of the nearby pre-1947 houses.[29]
  7. [37]
    This finding is consistent with Mr Elliot’s observations that the house has a form similar to that of Austerity-era construction (circa 1950s),[30] which is similar to that of the post-1946 houses at 52 and 67 MacDonald Street.[31]
  8. [38]
    Secondly, I do not accept that the house is recognisable as a ‘Georgian style’ traditional building character house because: 
    1. (a)
      The  house does not display any of the following elements (referred to in the Joint Expert Report as being typical of the ‘Georgian style’ of architecture):
      1. (i)
        small pane windows with shutters:[32] (the house has fake pane windows and no shutters);
      1. (ii)
        an entrance consisting of a panelled door, side lights and an elliptical fanlight:[33] (the house has no side lights or elliptical fanlight); and
      1. (iii)
        the whole front elevation framed by a pillared porch in the Doric order:[34] (the front elevation of the house is framed only at the front door, by modest paired posts).
    2. (b)
      Even accepting Mr Kennedy’s later “simple timber” ‘Georgian’ style house description ,[35] the house is not readily identifiable with that style which usually includes the following: 
      1. (i)
        a gabled portico: (the house has only an entrance porch with flat roof, not a gabled portico);     
      1. (ii)
        a raised house with lightweight structure underneath: (the house has slab-on-ground construction); and
      1. (iii)
        a veranda complete with timber panelling and stairs: (the house has no veranda and no stairs, and only limited timber panelling).
    3. (c)
      Another architectural feature of Queensland Georgian style houses is bay windows – which again the house does not have.[36]
    4. (d)
      The aspects of the house that Mr Kennedy points to in support of his view are the building’s symmetry; the hipped roof; balancing windows (which both experts accepted are not currently double hung); and the portico because of its use of columns. But I am satisfied that these elements are not sufficient to identify the house as one with a ‘Georgian style’. The effect of Mr Kennedy’s opinion is that any house that comprises a hipped roof form with symmetrical façade could comprise the interwar Georgian style of home. But as Mr Elliot observed (and I accept) as making perfect and obvious sense - just because the house is modest with a fairly simple form, it does not necessarily follow that it is Georgian.[37] Rather, a Georgian style house “requires a combination of architectural elements to be integrated in the house as well”.[38] Overall, I am satisfied that the house does not sufficiently exhibit such features. 
  9. [39]
    This finding (that the house is not recognisable as a ‘Georgian style’ or influenced traditional building character house) is consistent with the varying and emerging ways in which the Council (and Mr Kennedy) sought to recast and describe the house (as discussed under the heading Factual Context above). 
  10. [40]
    Thirdly, the view shed or visual catchment of the house is limited. Even from the viewpoints relied upon by Mr Kennedy in describing the house as “readily observed”,[39] the views of the house are mostly limited, due to:
    1. (a)
      the house being well set back from the boundary of the land; 
    2. (b)
      the house being obscured by vegetation, which (depending on the viewpoint) either entirely or at least partially obscures the visibility of the house;[40] and
    3. (c)
      views towards the house being dominated by surrounding built form.
  11. [41]
    I am satisfied on the evidence that the house only achieves visible prominence when viewed from the front of the houses at No. 49 or 51 MacDonald St, or in Katherine Street (but only when approaching MacDonald Street).[41] 
  12. [42]
    In reaching this conclusion I accept that care must be taken in considering the contribution of a house to traditional  character where vegetative screening obscures views because it could result in owners undermining the provisions of the Demolition Code “by taking steps to screen their buildings so as to get permission to demolish them.”[42]  But the fact that vegetation forms part of the setting cannot be ignored in a balanced assessment of the effect of the loss occasioned by a demolition.[43] In the present case, that assessment weighs in favour of the appellants for two reasons. First, because there is no evidence of any steps having been taken by the appellants to screen the house and secondly, the historical aerial photography demonstrates that the vegetation is well-established. Indeed, it has been there for many decades.
  13. [43]
    Fourthly, I am satisfied that there is limited, if any, visual connection between the house and other houses that exhibit traditional building character because:
    1. (a)
      the house is located squarely within a row of post-1946 dwellings. It follows that Mr Kennedy’s purported “visual connection” is therefore not established; and 
    2. (b)
      the house’s location in the middle of a row of post-1946 dwellings[44] has the consequence that any view of the house from Katherine Street does not reinforce the traditional building character of MacDonald Street. 
  14. [44]
    It follows from the above analysis that I am satisfied and find that the demolition complies with both AO5(a) and AO5(c) of the Demolition Code. Given these findings it is unnecessary to consider compliance with AO5(d).

Issue Two: PO5(c)

  1. [45]
    Given my findings at paragraphs 35 to 42 above, I am also satisfied that the house does not contribute to the traditional building character of that part of MacDonald Street mapped within the traditional building character. I therefore find that PO5(c) is complied with.

Issue Three: OO(2)(a)

  1. [46]
    The Council’s written submissions submitted that this overall outcome “is not wholly answered by PO5 and AO5” because it speaks of protecting residential buildings that “individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character.”[45]
  2. [47]
    In developing its “areas” argument, Council submitted that the expression “areas” ought to be read to mean something broader than a “street” or “part of the street”. I accept as a general proposition, that an ordinary reading of the word “areas” as it is used in the in the context of the Demolition Code read as a whole (assuming that different words ought to be given a different meaning), might result in it being given a different meaning to “street” or “part of the street”.  As the Council submitted in oral submissions – depending on the case – it could be a narrower meaning or a broader meaning. 
  3. [48]
    But on the facts of this case, there was no evidence that the word “areas” was to be read to extend beyond that of the street, or streetscape under consideration and I do not find it to be so. Consistent with this finding, both Mr Kennedy and Mr Elliot expressly defined (and I accept their evidence about this) that the “relevant extent of the street, streetscape, area and precinct under consideration” to be the same location.[46] 
  4. [49]
    As the above analysis reveals, the house makes a nominal contribution to the traditional building character of the street (or area) and does not individually or collectively (with other houses) contribute to the traditional building character or traditional character of the street (or area).  I am satisfied that the demonstrated compliance with AO5 and PO5 is consistent with compliance with OO(2)(a).[47]
  5. [50]
    I am therefore satisfied that the development application complies with OO(2)(a).
  6. [51]
    Given these findings it is unnecessary to address Issue 4.

Orders

  1. [52]
    The appeal is allowed.
  2. [53]
    I will hear further from the parties, if necessary, as to the appropriate form of order or any consequential orders.

Footnotes

[1]  Written Opening on behalf of the Respondent p. 9 at [44].

[2] Planning and Environment Court Act ss. 43 and 46(2); Planning Act s. 59(3).

[3] Planning and Environment Court Act s. 45(1)(a).

[4] Klinkert v Brisbane City Council [2018] QPELR 941 at [79]-[97], [101]-[102].  This decision was upheld on appeal.

[5] Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987 at [63]; Traspunt No. 14 Pty Ltd v Morton Bay Regional Council & Anor [2021] QPEC 4 at [26] as endorsed by Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328 at [19]-[22]. Nothing turns on it in terms of principle, but it is noted that this decision related to an impact assessment and not a code assessment.

[6] Planning Act s. 45(3).

[7]  No party contended that weight ought to be given to any changes in any later version of the planning scheme.

[8]  No issue relating to the land’s zoning arises in the appeal.

[9]  Exhibit 6 (Planning Scheme Extracts) p. 25, s. 5.3.3(4)(c).

[10]  Exhibit 6 (Planning Scheme Extracts - City Plan) p. 40, s. 8.2.22.1 which notes relevantly that: “ … Where this code includes performance outcomes or acceptable outcomes that relate to traditional building character, guidance is provided in the Traditional  building character planning scheme policy.” 

[11] Klinkert v Brisbane City Council [2018] QPELR 941 at [56] - [59].

[12] Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62 at [3] per Judge Bowskill QC (as her honour then was).

[13]  Exhibit 3A.

[14]  Exhibit 4 (Joint Expert Report) p. 18 at [22.2(a)].

[15]  Council also maintained this description when it confirmed its reason for refusal for the purposes of this appeal.

[16]  Written Submissions on behalf of the Respondent dated 22 August 2022 at [9(c)], [17] and [44].

[17]  Exhibits 13, 14 and 15. Further, Mr Kennedy confirmed that the house does not appear in the State Advances Catalogues he referred to, published in 1925, 1928 or 1935: see Exhibit 7 (Kennedy Statement of Evidence) p. 3 at [1.2].

[18]  Exhibit 13 p. 16; Exhibit 14 p. 4.

[19]  Exhibit 4 (Joint Expert Report) p. 5 at [17], p. 6 at [18]. 

[20]  Exhibit 4  (Joint Expert Report).

[21]  Exhibit 4 (Joint Expert Report) p. 18 at [22.2(a)].

[22] Taylor & Anor v Brisbane City Council [2020] QPELR 1080 at [18]; Se Ayr v Brisbane City Council [2016] QPELR 223 at [8]. 

[23] Bilalis v Brisbane City Council [2017] QPEC 42 at [43] per Kefford DCJ.

[24] Marriott v Brisbane City Council [2015] QPELR 910 at [65] per her Honour Judge Bowskill QC (as she then was).

[25] Williams v Brisbane City Council [2022] QPELR 580 at [44]; Taylor & Anor v Brisbane City Council [2020] QPELR 1080 at [18]; Marriot v Brisbane City Council [2015] QPELR 910 at [36].

[26]  With reference to Kanesamoorthy & Anor v Brisbane City Council [2016] QPELR 784 at [31] and  Lonie v Brisbane City Council [1998] QPELR 209, 212.

[27]  For example, unlike some of the provisions considered by Kefford DCJ in Bilalis v Brisbane City Council [2017] QPEC 42 at [18] and [59], none of the relevant provisions in this case require an assessment of whether the house “contributes positively to the visual character of the street”. That assessment being one well able to be assessed by the average person walking along the street looking about.

[28]  See Exhibit 6 (Planning Scheme Extracts) pp. 90-91, ss. 2.2(l)(a)-(b), 2.3(1)(a), 2.3(2) and 2.5(1).

[29]  The setback for the house is almost 11.5m compared with the respective front setbacks of nearby pre-1947 houses in the street which measure from just under four metres up to about seven metres and the average setback derived from the most proximate ten examples of pre-1947 houses remaining in the street is 5.56m; see Exhibit 4 (Joint Expert Report) p. 16, s. 22.1 and Figures 16 and 17.

[30]  Exhibit 4 (Joint Expert Report) p. 14 at [22.1].

[31]  Noting that these are the houses specifically identified by Mr Kennedy as “modern low set austerity style post war houses”; see Exhibit 4 (Joint Expert Report) p. 34 at [23.2(c)], Figures 14 and 15; pp. 60 and 71.

[32]  Exhibit 4 (Joint Expert Report) p. 19 at [22.2(c)].

[33]  Ibid. 

[34]  Exhibit 4 (Joint Expert Report) p. 19 at [22.2(c)].

[35]  Exhibit 7 (Kennedy Statement of Evidence) p. 3, Figure 1.

[36]  Exhibit 4 (Joint Expert Report) p. 20, Figure 20; see also p. 19, bottom of the page – the Rechner example referred to is the same as shown in Mr Elliott’s statement of evidence at Exhibit 5 p. 4, Figure 2.

[37]  T1-50, ll 3-11.

[38]  T1-50, ll 15-16.

[39]  Exhibit 4 (Joint Expert Report) p. 38 at [24.2].

[40]  The vegetation in question is vegetation within the land, vegetation on the neighbouring property and the street trees.

[41]  Ex. 17 (Bundle of Katherine Street photographs). See also Mr Elliot’s evidence at T1-63, ll 25-37.

[42] Williams v Brisbane City Council [2022] QPELR 580 at [38].

[43] Williams v Brisbane City Council [2022] QPELR 580 at [37]; Hamilton v Brisbane City Council [2016] QPELR 592.

[44]  Nos. 52 and 54 on the left, Nos. 60 and 62 (or 2 Katherine Street) on the right.

[45]  Written submissions on behalf of the respondent at [40]. Although in oral submissions, Council conceded that if the appellants satisfied AO5(c ) – “that is the end of the matter.”

[46]  Exhibit 4 (Joint Expert Report) at [17].

[47] Law v Brisbane City Council [2021] QPEC 065 at [8].

Close

Editorial Notes

  • Published Case Name:

    Ficca & Ors v Brisbane City Council

  • Shortened Case Name:

    Ficca v Brisbane City Council

  • MNC:

    [2022] QPEC 52

  • Court:

    QPEC

  • Judge(s):

    Muir DCJ

  • Date:

    08 Dec 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bilalis v Brisbane City Council [2017] QPEC 42
2 citations
Jump To
Cite 1 - [2017] QPEC 42
Cite 2 - [2017] QPEC 42
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Hamilton v Brisbane City Council [2016] QPELR 592
2 citations
Jump To
Cite 1 - [2016] QPELR 592
Cite 2 - [2016] QPELR 592
Kanesamoorthy v Brisbane City Council [2016] QPELR 784
2 citations
Jump To
Cite 1 - [2016] QPELR 784
Cite 2 - [2016] QPELR 784
Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62
2 citations
Jump To
Cite 1 - [2016] QPEC 62
Cite 2 - [2016] QPEC 62
Klinkert v Brisbane City Council [2018] QPELR 941
3 citations
Jump To
Cite 1 - [2018] QPELR 941
Cite 2 - [2018] QPELR 941
Cite 3 - [2018] QPELR 941
Law v Brisbane City Council [2021] QPEC 65
2 citations
Jump To
Cite 1 - [2021] QPEC 65
Cite 2 - [2021] QPEC 65
Lonie v Brisbane City Council (1998) QPELR 209
2 citations
Jump To
Cite 1 - (1998) QPELR 209
Cite 2 - (1998) QPELR 209
Mariott v Brisbane City Council [2015] QPELR 910
3 citations
Jump To
Cite 1 - [2015] QPELR 910
Cite 2 - [2015] QPELR 910
Cite 3 - [2015] QPELR 910
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
2 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223
2 citations
Jump To
Cite 1 - [2016] QPELR 223
Cite 2 - [2016] QPELR 223
Taylor v Brisbane City Council [2020] QPELR 1080
3 citations
Jump To
Cite 1 - [2020] QPELR 1080
Cite 2 - [2020] QPELR 1080
Cite 3 - [2020] QPELR 1080
Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4
2 citations
Jump To
Cite 1 - [2021] QPEC 4
Cite 2 - [2021] QPEC 4
Williams v Brisbane City Council [2022] QPELR 580
4 citations
Jump To
Cite 1 - [2022] QPELR 580
Cite 2 - [2022] QPELR 580
Cite 3 - [2022] QPELR 580
Cite 4 - [2022] QPELR 580

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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