This case involved an appeal in the Queensland Planning and Environment Court to protect two cultural heritage listed buildings known as “Plumb’s Chambers” in Warwick.
Plumb’s Chambers at 82 and 84 Fitzroy Street, Warwick, comprise a brick and timber building possibly dating to the 1860s and an 1874-75 stone building. A satellite image of the location of the buildings is available here.
The buildings were listed on the Queensland Heritage Register in 1997 under the Queensland Heritage Act 1992 (Qld) because of, amongst other things, their importance in illustrating the transformation of Warwick in the late 1860s and 1870s from a squatters’ town to the principal urban centre of Queensland’s most prosperous pastoral and agricultural district. A certified copy of the listing is available here.
At the time relevant to the appeal, development in Warwick, including for Plumb’s Chambers, was subject to the Warwick Shire Planning Scheme 1999 prepared under the Integrated Planning Act 1997 (Qld) (IPA) (now replaced by the Sustainable Planning Act 2009 (Qld) and a later planning scheme).
In September 2007 the owner of an adjoining shopping centre applied under the IPA to demolish 82 Fitzroy Street and part of 84 Fitzroy Street (the rear service wing) to allow the extension of the shopping centre (the demolition application).
In October 2007 the owner of the adjoining shopping centre applied under the IPA for a MCU over land including 82 and 84 Fitzroy Street, to extend the shopping centre and demolish 82 and part of 84 Fitzroy Street (the MCU application). However, this application was amended in 2009 to limit it to the MCU component of the development.
The building at 84 Fitzroy Street was included in a list of local heritage places protected under the planning scheme but, due reportedly to an inadvertant mistake by the local government, the building at 82 Fitzroy Street was not listed. This meant that under the planning scheme the demolition of 82 Fitzroy Street was code assessable while the demolition of 84 Fitzroy Street was impact assessable.
Under the planning scheme a material change of use (MCU) for a shopping centre over 4,000 square meters is impact assessable but the MCU application never proceeded to public notification and has now lapsed.
The demolition application was publicly advertised as required under the IPA. Several objections were made based on the loss of cultural heritage.
The demolition application and the MCU applications were also referred to the then Environmental Protection Agency (EPA) (now DEHP) as a concurrence agency under the IPA in relation to development involving a property listed on the Queensland Heritage Register.
The EPA initially refused the demolition application but later issued an amended concurrence agency response approving the demolition.
Following the EPA’s amended response, the local government and assessment manager, Southern Downs Regional Council, approved the demolition.
No decision was made on the MCU application and it subsequently lapsed due to a failure to respond to an information request.
Two of the objectors appealed the approval of the demolition application to the Planning and Environment Court.
The background facts for the appeal are used in a case study in the following lecture on the development assessment system in Queensland (commencing at 3:25 on the counter):
In a preliminary hearing the Court resolved cross-applications by the opposing parties challenging the validity of the assessment process and the appeal. The Court foundthat:
- the demolition application was valid even though it did not include the MCU component in the same application; and
- the appeal could only validly be made about the impact assessable component of the demolition application (that is, the demolition of the rear service wing of 84 Fitzroy Street).
An application for leave to appeal against this prelimanary decision to the Court of Appeal was lodged but it was discontinued prior to a decision being made on it.
The parties continued to dispute preliminary issues. A subsequent (second) preliminary hearing determined that the submitter/appellants could challenge the assessment made by the EPA under the Queensland Heritage Act.
The trial was held on 27-28 July 2011 before Robin QC DCJ in the Planning and Environment at Brisbane, focusing on the demolition of the rear service wing of 84 Fitzroy Street. His Honour allowed the appeal and ordered that the development application be refused, holding (at ):
“The difficulty [with allowing the demolition of the rear of 84 Fitzroy Street] is the planning scheme’s requirement that the heritage place be preserved, meaning (in my view) the whole of it. The loss of a part which is not under threat as the price of the second co-respondent’s taking as yet undefined steps to save and restore the greater, more important parts of the building (whose future use, if any is unknown) should not, as the proceeding stands, be allowed. The link between removing what is to go and protecting what is to be retained is the private owner’s interests, as it sees them, presumably financial/economic interests. Physically, the task of saving what is proposed to remain in no way depends upon demolition or is facilitated by demolition of a structure (the service wing) with heritage value – and which presently makes an important contribution to the whole. It is not shown that the demolition of the service wing and/or the creation of open space in its place advances any public interest or even on its own enhances or benefits the structure remaining from any point of view. I am unable to detect any basis on which the “deal” achieved by the respondent and co-respondents, commendable as it may be, and as much as it advances an important public heritage interest, can be supported in terms of the planning scheme and s 3.5.14(2)(b) [of the Integrated Planning Act 1997 (Qld)]. More would be needed by way of countervailing benefiting of the public interest to overcome conflict with the planning scheme. That might have been available had more been revealed of public interests to be advanced in respect of no. 84 Fitzroy Street from the desired demolition (no particular reason for which emerges) and/or from whatever will be done to what remains.”
- Cover letter for demolition application (14 September 2007)
- Heritage report prepared by Thomson Adsett Architects (September 2007) accompanying demolition application
- Structural engineer’s report prepared by Farr Engineers (September 2007) accompanying demolition application
- IDAS forms for demolition application
- Owner’s consent for demolition application
- Acknowledgment Notice for application
- Cover letter for referral of demolition application to the EPA as a concurrence agency
- Information Request by the EPA / Queensland Heritage Council (QHC)
- Response to the information request attaching:
- Objections to the development application by:
- Concurrence agency response from EPA directing that demolition application be refused (5 September 2008)
- Suspension of decision period by applicant (16 September 2008)
- Amended concurrence agency response from the EPA recommending preliminary approval with conditions (17 September 2009)
- Report to Planning and Environment Committee of the Southern Downs Regional Council by council planning officers recommending the development application be approved with conditions [without public submissions attached to original report]
- Warwick Shire Planning Scheme 1999 and Planning Scheme Policy No 1 (Cultural Heritage) under which the demolition application was subject to public notification and assessed by the Southern Downs Regional Council
- Decision notice granting preliminary approval for demolition application (26 November 2009)
MCU application for shopping centre
- Cover letter for MCU application and demolition of 82 and 84 Fitzroy Street (24 October 2007)
- Planning Assessment Report by Urbis (October 2007) accompanying the MCU application
- IDAS forms for the MCU application
- Acknowledgment Notice for MCU application
- Letter (dated 23 June 2008) amending MCU application to remove application for preliminary approval for demolition of 82 Fitzroy Street and part of 84 Fitzroy Street
- Information request by EPA as concurrence agency
- Letter (dated 2 July 2009) regarding proposed access ramp attaching plan of proposed truck turning circle across 82 and 84 Fitzroy Street that became the approved plan for the demolition application
[Note: the MCU application was never publicly advertised and has now lapsed due to a failure to respond to the information request within one year].
Notice of Appeal against approval of demolition
- Notice of Appeal filed in the Planning and Environent Court
Preliminary hearing on strike-out application
- Application in a Proceeding filed by McConaghy Group Pty Ltd to strike out appeal
- McConaghy Group submissions on strike-out application
- Southern Downs Regional Council’s submissions on strike-out application
- Appellants’ submissions for the preliminary hearing on the strike-out application
- Decision on failure to decide whole of the application: Barnes v Southern Downs Regional Council  QPEC 111 (Rackemann DCJ)
- Decision holding that the demolition application was properly made and striking out the appeal against the code assessable parts of the application: Barnes v Southern Downs Regional Council  QPEC 131(Rackemann DCJ)
Application to the Court of Appeal (discontinued before decision)
- Application for leave to appeal against preliminary decision
- Affidavit filed in support of the application for leave to appeal
- Notice of discontinuance of the appeal
- Directions orders made 23 March 2011 for steps leading to trial
- Request for Further and Better Particulars filed by the Second Co-Respondent, McConaghy Group
- Amended Grounds of Appeal and Further and Better Particulars filed by Appellants
Second preliminary hearing
- Directions orders made 21 April 2011 for second preliminary hearing
- McConaghy Group submissions for second preliminary hearing
- Appellants’ submissions for second preliminary hearing
- Southern Downs Regional Council’s submissions for second preliminary hearing
- Decision holding that submitter/appellants can challenge the concurrence agency assessment: Barnes & Anor v Southern Downs Regional Council & Ors  QPEC 75
Expert reports presented at trial
- Joint town planning experts report
- Joint heritage experts report and supplementary joint report
- Joint engineering experts report and supplementaryjoint report
- Annette Doherty individual report on town planning issues for the Council
- Peter Gill individual report on town planning issues for McConaghy Group
- Michael Scott individual report on heritage issues for appellants
- Stephen Davies individual report on heritage issues for McConaghy Group
- Duncan Ross-Watt individual report on heritage issues for DERM
Witness statement presented at trial
- John Barnes witness statement
Written closing submissions at trial
- Appellants’ outline of closing submissions
- Council’s written submissions
- DERM’s’s outline of submissions
- McConaghy Group’s written submissions
- Decision allowing the appeal and dismissing the development application: Barnes & Anor v Southern Downs Regional Council & Ors (No 2)  QPEC 119 (Robin QC DCJ).
Following the court case the proponent continued to seek approval for the shopping centre expansion over the heritage-listed buildings.
A new application to demolish 82 Fitzroy Street was lodged in mid-2012 and the Queensland Department of Environment and Heritage Protection approved the application.
Media reports about this case
Warwick Daily Times:
Landmark faces axe
(17 October 2009)
Warwick landmark faces axe
(26 November 2009)
Battle goes on for No. 84
(29 October 2009)
Heritage battle heads to court
(6 February 2010)
Plumb’s work for ‘safety’: Council
(25 January 2011)
Fight for Plumb’s survival hots up
(22 February 2011)
New take on old problems
(22 March 2011)
Plumb’s in need of some passion
(24 May 2011)
Judge inspects chambers
(28 July 2011)
Bold bid to buy Plumb’s
(30 July 2011)
Win for heritage supporters
(15 September 2011)
Final decision on Plumb’s looming
(2 October 2012)
Demolition order given without a word of warning
(15 June 2013)
Prospect of Plumb’s Chambers being destroyed ‘heartbreaking’
(29 June 2013)
Stud owner lashes Govt for demolition of Plumb’s Chambers
(27 November 2013)