Australia: Interpreting the Demolition Code for the demolition of a "pre-war" building in Brisbane

Introduction

Assessment of a development application for the demolition of a "pre-war" building located within a Demolition Control Precinct (DCP) is carried out against the Demolition Code. It is fair to say that interpreting and applying the Demolition Code is a challenging exercise.

The focus of this article is to provide some clarity and guidance in relation to the Demolition Code's key performance criteria by summarising recent and leading decisions from the Planning and Environment Court.

Background

Given the iconic status of the Queenslander style house, the protection of timber and tin character housing plays a critical part in preserving Queensland's relatively young identity. In Brisbane, this responsibility lies with Brisbane City Council as planning authority and the framework for its protection is found in Brisbane City Plan 2000 (City Plan).

Balancing the need for progressive inner city residential development against the desire to preserve houses for historical purposes is a difficult task for Council. The majority of DCPs identified in City Plan cover inner city residential locations that are prime targets for residential development. The high cost of smaller residential lots attracts high expectations in terms of site usability and modern living requirements which are generally incompatible with historic houses. Accommodating these expectations often necessitates the demolition of historic houses.

DCP's are mapped in an effort to capture the majority of historically significant traditional houses constructed prior to 31 December 1946. Understandably, this mapping exercise is based upon a review of Council's historical records rather than a physical inspection of every house included within the precinct. In recognition of this imprecision, and presumably to achieve performance based outcomes, a house located within the DCP can be demolished if it is not caught by the Demolition Code.

For development assessment, inclusion in a DCP is a trigger for assessment against the Demolition Code and the Residential Design – Character Code. The intent of the Demolition Code is to maintain the character of traditional pre war streetscapes by controlling demolition, relocation and removal of buildings that contribute character. Conversely, the Residential Design – Character Code focuses on ensuring that new buildings are compatible in appearance with existing character buildings.

Considering whether a proposed development is caught by the Demolition Code is no simple task. Although the Code itself is not lengthy, the performance criteria contained within it include uncertain terms such as 'traditional building character' and 'must not contribute positively to the visual character of the street'. The uncertainty associated with interpreting and applying these terms is evident by the volume of decisions from the Planning and Environment Court which consider the Demolition Code.

Demolition Code

Performance criteria P1 of the Demolition Code provides:

Performance Criteria Acceptable Solutions

P1 The building:

• must not represent 'traditional building character'; or
• must not be capable of structural repair; or
• must not contribute positively to the visual character of the street.

Acceptable Solutions

• A1.1 The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946.

OR

• A1.2 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound.

OR

• A1.3 The demolition of a building will not result in the loss of:
• traditional building character within the Demolition Control Precinct where in a Low Density Residential Area or Character Residential Area; or
• traditional 'timber and tin' building character within the Demolition Control Precinct where in a Low Medium Density Residential Area.

OR

• A1.4 The street has no traditional building character.

Performance Criteria

The elements of P1 are considered below. However, some general principles from the Court's decisions should be noted. They include:

• In cases where the determining features are such concepts as building character, the Court must bear firmly in mind that it must act on the evidence and not its own opinions;
• The view undertaken by the Court in a matter involving building character is not evidence but merely an aid to understanding the evidence;
• That a site might be suitable for redevelopment for broader reasons and is capable of being sympathetically redeveloped does not satisfy the requirements in order to justify demolition; and
• The performance criteria operate alternatively not cumulatively.

"Must not represent traditional building character"

• It is not necessary that the street or the dwelling are in pristine condition for the demolition to be refused;
• A building need not exhibit each of the features identified within the description of "traditional building character" contained in City Plan, in order to be classified as such;
• A pre 1947 building, even if not aesthetically pleasing, is still only to be assessed against those factors identified in the Demolition Code;
• The term "traditional building character" as provided for in City Plan is not a definition and is only general in nature. It does not suggest a prototype from which only minor variations in style are permitted; and
• The existence of remnant characteristics of a former traditional timber and tin building does not necessarily mean that traditional building character is maintained.

"Must not be capable of structural repair"

• The test is an objective one;
• If the cost of repairing the premises is unreasonably high, the applicant is taken to have established that the building is not capable of being made structurally sound; and
• Items that may indicate that a building is not structurally sound include extensive areas of decay, intensive white ant attack, excessive differential settlement, cracked foundations or walls that may possibly collapse.

"Must not contribute positively to the visual character of the street"

• The Code does not require a house to have architectural merit;
• There is no requirement that a pre 1947 building be "remarkable" or "unique";
• The presentation of a house to the street may be given greater weight than the presentation of the house at the rear, which is out of view from the street; and
• For the purposes of this performance criteria, a street may be divided into segments, such that it may be possible to claim that the segment which the subject house is located in has no visual character.

Acceptable Solutions

Each of the elements of the acceptable solutions to P1 are considered below.

"The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946?

• Alterations are relevant in an assessment;
• On one construction of the provision, it is fatal to a demolition application if the second limb of the test (i.e. "does not have the appearance of being constructed in or prior to 1946?) is not met. However, this interpretation has been left open in subsequent decisions;
• If the second limb of the acceptable solution is met, the acceptable solution as a whole is met; and
• That an alteration which has been made to the building is easily reversible is not of much relevance.

"An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound"

• The question of whether a building is structurally unsound and is not reasonably capable of being made structurally sound must be answered objectively;
• It would be inconceivable that City Plan intended to accept as appropriate, restoration to a level where premises lacked the capacity for safe occupation;
• Structural soundness does not require structural perfection. This provision is aimed at engineering safety rather than a complete and faithful restoration of the building to its original condition;
• The very nature of testing reasonableness will vary with the circumstances of each case and it is impossible to set boundaries or attempt specific tests;
• Reasonable is a word of common usage and should bear its ordinary and everyday meaning;
• The personal financial circumstances of the applicant are not relevant in determining reasonableness;
• The provision does not provide a requirement that the standard of structural soundness must meet present day building codes and standards;
• The subjective preferences of an individual owner are irrelevant and form no part of the acceptable solution; and
• It is not relevant that with unlimited resources, structural soundness may be achieved. Structural soundness must be able to be achieved "reasonably". In this way, what is "reasonable" depends on a number of factors including the physical ability of the work to be carried out, cost and complexity.
• With respect to cost, the Court has determined that costs of:

However, each matter requires individual assessment.

"The demolition of a building will not result in the loss of:

• traditional building character within the Demolition Control Precinct where in a Low Density Residential Area or Character Residential Area; or
• traditional 'timber and tin' building character within the Demolition Control Precinct where in a Low Medium Density Residential Area"
  
  
• There is an interesting and important distinction between the performance criteria and this acceptable solution. The performance criteria focuses on the character of the street whereas this acceptable solution focuses on character within the Demolition Control Precinct;
• This provision should not be interpreted as preventing any loss of traditional building character, no matter how trivial;
• This provision should not be interpreted as allowing the loss of traditional building character by reason of demolition so long as the loss is not "the straw that breaks the camel's back";
• The provision prevents loss of traditional building character that is significant, concerning or unacceptable rather than preventing any loss at all;
• This acceptable solution calls for an assessment of the loss which demolition would cause in the context of the Demolition Control Precinct. The extent to which the Demolition Control Precinct otherwise exhibits traditional building character is relevant. In the same way, the extent to which the street features post 1946 buildings is a relevant factor in assessing this acceptable solution; and
• It is not correct to interpret this acceptable solution on the basis that demolition will be acceptable unless it results in a total loss of the relevant traditional timber and tin building character within the Demolition Control Precinct.

"The street has no traditional building character"

• It is relevant to enquire whether the street in question has been robbed of its traditional character by the extent of the redevelopment in it; and
• In determining the street's character, the task is to consider the visual character of the street as a whole.

Conclusion

The significant volume of recent Court decisions concerning this area suggests that Council has adopted and maintains a position that is staunchly against the demolition of historic houses. In the circumstances, when proceeding with a development application that will be assessed against the Demolition Code, it is prudent to prepare the application on the basis that it will probably (in all but the clearest cases) be refused. Supporting the application with the appropriate expert reports and specialised legal guidance will significantly improve your prospects of negotiating an early resolution in the event of a refusal by Council and subsequent appeal to the Planning and Environment Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.