Christensen v Brisbane City Council [2001] QPEC 8

IN THE PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Warren Christensen v Brisbane City Council [2001] QPE 008 PARTIES: WARREN CHRISTENSEN Applicant v BRISBANE CITY COUNCIL Respondent FILE NO: 2068 of 2000 PROCEEDINGS: APPEAL COURT: PLANNING & ENVIRONMENT COURT (BRISBANE) DELIVERED ON: 13 February 2001 at SOUTHPORT HEARING DATES: 24 OCTOBER & 1 DECEMBER 2000 JUDGMENT OF: NEWTON, DCJ CATCHWORDS: Town Plan for City of Brisbane – sec 7.2.6 – waiver of application for development work (demolition) – whether waiver may be granted retroactively. COUNSEL: Mr A Heyworth-Smith for the applicant Mr R Bain, QC for the respondent SOLICITORS: Ian Fry & Co for the applicant Brisbane City Council Legal Office for the respondent -- 1 of 6 -- IN THE PLANNING & ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND No 2068 of 2000 BETWEEN WARREN CHRISTENSEN Applicant AND BRISBANE CITY COUNCIL Respondent REASONS FOR JUDGMENT - Newton DCJ Delivered the 13th day of February 2001 [1] The applicant seeks a number of declarations and consequent orders in respect of a development on land at 47 Prospect Street, Wynnum. The parties have agreed to confine their submissions for present purposes to that part of the application set out in paragraph (d) thereof which seeks: “(d) Alternatively, a declaration that upon the proper construction of Secs 7.2.6.1 and 7.2.6.2 of the Town Plan for the City of Brisbane, it is competent for the respondent to grant a waiver of the kind referred to in the Sec 7.2.6.2 notwithstanding that development work for which waiver has been sought has already commenced.” [2] It seems to be common ground that certain development work has been carried out by the applicant on a residential building on the subject site. The applicant prefers to categorise this work as “alteration, addition, extension, modification or renovation”. The respondent describes the work as “demolition”. [3] No agreed statement of facts has been placed before me and no evidence called to establish the precise nature of the development work carried out by the applicant. However, it is not in dispute that the work was done without any application being made to the respondent to grant a waiver of the kind referred to in Sec 7.2.6.2 of the Town Plan for the City of Brisbane. -- 2 of 6 -- [4] It is also not in dispute that the subject site is located inside the area bounded by a heavy line in figure 7.1.1 of the Town Plan. Thus, assuming the development work comprises or includes the demolition of a building on the subject site, the development work is defined as “permissible development” pursuant to the provisions of Sec 7.2.6.1(a) of the Town Plan. As such, it may proceed only with the consent of the respondent. [5] Section 7.2.6.2 of the Town Plan provides that: “The Council may, on application made under subsection 24.5, waive the application of subparagraph 7.2.6.1 with respect to a particular building where: (a) it is satisfied that the building does not constitute a heritage or character building; or (b) the extent of demolition proposed is minor and: (i) in the case of a heritage building, unlikely to have any significant adverse affect on the heritage significant of the building; or (ii) in the case of a character building, unlikely to have any significant adverse affect on the visual appearance of the building within its visual catchment. (c) the building is structurally unsound and not reasonably capable of being made structurally sound.” [6] The respondent contends that it cannot lawfully retroactively waive the non-compliance with Sec 7.2.6.2. The applicant submits that it is competent for the respondent to grant now the waiver on a nunc pro tunc basis. [7] The proposed amendment which is sought by the applicant is in the following terms: “(d) Alternatively, a declaration that upon the proper construction of Sec 7.2.6.1 and 7.2.6.2 of the Town Plan for the City of Brisbane where development comprised the demolition of a building or part of a building on land which is located inside the area bounded by a heavy line in Figure 7.1.1, and where the particular building is neither a heritage building nor a character building as in the Plan defined, it is competent for the Council, where application is made under Sec 24.5, to waive the application Sec 7.2.6.1 in respect of that particular building notwithstanding: (a) that the development which comprises demolition of that particular building or part of that particular building has commenced, and (b) that so much of that development which constitutes such demolition has commenced.” -- 3 of 6 -- [8] The proposed amendment is based on the proposition that that last date (after which the Council would say it has no power to entertain an application for waiver) is no later that the commencement of the “demolition”, however defined. The applicant’s position is that there is no point of time when the Council’s power to grant such waiver comes to an end. Whether or not a waiver of Sec 7.2.6.1 should be granted, contends the applicant, is always a matter of discretion to be exercised in accordance with the circumstances of each particular case. Essentially, the amendment is sought by the applicant to accommodate whichever position the Council finally adopts by making the commencement of “demolition” rather than the commencement of “development work” the time determinant. [9] It is submitted on behalf of the applicant that the same question as to whether the granting of waiver is a matter of power, or a matter of discretion, exists whether the Council’s concept of “demolition” is adopted, or that for which the applicant contends. Mr Heyworth-Smith illustrates that contention by submitting that it would be absurd if, after a ramshackle edifice has been demolished, which no-one in their right mind would want to leave standing, the Council had no power to waive the application of Sec 7.2.6.1, with the resultant inexorable application of Sec 7.2.6.4(a). [10] The applicant’s proposed amendment, by focusing on the “demolition” content of development, is said to be intended to have regard to an argument raised on behalf of the Council at the hearing, namely, that one intent of Sec 7.2.6 of the Town Plan was to put a heavy sanction upon developers who might “demolish” heritage or character houses -- 4 of 6 -- without the Council knowing, and without regard to public notification and advertisement. Mr Heyworth-Smith submits that even if the proposed declaration is made, the Council will retain its discretion to refuse a waiver. Whether it is likely to refuse to exercise its discretion in favour of the applicant is irrelevant to the construction question. [11] Mr Bain QC, submits that the proposed amendment lacks legal utility firstly because a declaration as proposed by the amendment would be inappropriate as not clearly deciding anything, the “commencement” upon demolition of part of the building, rather than the fact of demolition, being irrelevant; and in any event the declaration as proposed by the amendment would not avail the applicant on the facts here. [12] It is contended on behalf of the respondent that a person in the applicant’s position will say that because the entire intended “demolition” has not been done, the fact that some of it has been done, i.e. that it has “commenced”, is of no concern. Mr Bain submits that that is not a permissible contention having regard to Sec 7.2.6 of the Town Plan. [13] The nub of the problem, it seems to me, is whether subparagraph 7.2.6.5, referring to “demolition of … part of a building” presupposes that any demolition which has been carried out of part of a building, whether or not that is the entirety of the demolition intended in a particular project, constitutes “demolition” and, hence, “development”. In my view subparagraph 7.2.6.5 does contain that presupposition. -- 5 of 6 -- [14] I accept that a developer may commence upon demolition, but yet not demolish anything. Furthermore, in the application of this part of the Town Plan, as is the case with the application of any statute, it is inevitable that a particular situation will be dealt with as a matter of fact and degree. I accept that a line may and should be drawn between demolition (as defined) having been done and demolition having been commenced. The two are not necessarily the same. [15] In the event, I am satisfied that in the circumstances of which demolition of part of a building has occurred, the respondent lacks retroactive power to waive compliance with the Section or otherwise render lawful the development comprised in the demolition. The amendment is refused and the preliminary question should be resolved on the existing application. -- 6 of 6 --