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Fine for cottage demolition lifted fivefold on appeal

A developer’s fine for illegally demolishing a historic cottage in Brisbane had been lifted from $20,000 to $100,000 on appeal.

Natural Lifestyle Homes pleaded guilty and was fined in the Brisbane Magistrates Court in June to offences under the Planning Act 2016 (Qld) over its levelling of the 1888 building in the suburb of Paddington last year.

The company demolished the cottage and created a replica as part of a new build, despite the Brisbane City Council refusing its application to do this because the cottage was protected under the City Plan’s traditional building character overlay code.

In a Brisbane District Court judgment handed down yesterday, Judge Kent KC found the penalty imposed was manifestly inadequate and failed to create a financial cost that gave effect to general deterrence.

“It is so low that it does have a tendency to be potentially seen as simply a cost of doing business for developers in this area,” he said

“It does, in the circumstances, pay insufficient regard to the maximum penalty enacted by the legislature and it pays little recognition to the significant feature of the statutory scheme that the maximum penalty for the corporate defendant is five times as high as that available for the natural persons.”

Judge Kent said Natural Lifestyle Homes had defied the development approval eventually given by the council, which had required the existing cottage to be retained as part of the build.

“This was clearly a very different project from the one which had been rejected, and the retention of such an old and presumably somewhat delicate timber structure whilst engaging in new building work around it was a significant undertaking,” he said.

“One of the conditions of the approval was that the cottage be braced to ensure its structural integrity; it was made perfectly clear that all parts of the building not specifically designated for demolition were explicitly required to be retained and protected.”

He said there was a “clear public interest” in the protection of historical buildings such as the cottage.

“A planning scheme such as the City Plan is of course an expression of what constitutes the public interest, including in the striking of a balance between interests potentially affected by it.”

Judge Kent said the property was owned by a company shareholder and his wife, who had intended to live there.

He said the total cost of the redevelopment was between $2 million and $2.4 million, a value which dwarfed the amount of the fine.

“By committing the offences, the respondent avoided the costs of consultants to advise on whether the cottage could be moved and reinstated prior to the exercise being commenced, as well as the associated costs of performing the entire operation effectively, which may well have been significant; it appears to have been a difficult and complex exercise,” he said.

“The actions which were taken had the effect of overturning the council’s earlier refusal without recourse to the council itself, or the Planning and Environment Court; rather the council was in effect presented with a fait accompli.”

Natural Lifestyle Homes argued that a fine of more than $75,000 would spell insolvency, an argument Judge Kent did not accept.

“In short, while a significant fine would no doubt be a serious impost on the respondent, it is not clear to me that the consequences would be immediate and inevitable disaster,” he said.

“Fines are intended to penalise offenders; even if an increased fine were in excess of the respondent’s capacity to pay – which is not clearly shown to be the position – this would not by that fact alone render it excessive.”

Judge Kent ordered no conviction be recorded and that the fine be paid within 28 days, or deferred to the State Penalties Enforcement Registry after that time.

Natural Lifestyle Homes’ shareholders did not appeal the fined imposed on them in June, of $19,000 and $15,000 respectively.

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