Preliminary approval for building work – demolition of character house – whether building represented "traditional building character" – whether building contributed positively to the visual character of the street – s.496(2)(a) Sustainable Planning Act 2009
Facts: This was an appeal against the refusal of an application for a preliminary approval for building work, being the demolition of a pre-1946 dwelling.
The application had been refused on the basis of conflict with the Demolition Code. Performance Criterion P1 required that the building must not represent traditional building character, or must not contribute positively to the visual character of the street.
The dwelling was situated on the western side of Quay Street. Contrary to the more common situation, the house fronted the Brisbane River and the rear of the dwelling faced the street. It was also set back from the street a distance of some four to five times that of the majority of the dwellings on the eastern side of the street.
Over time, the character of the street had changed with the introduction of recent development, including the demolition of original houses, and renovations, alterations and restoration of original buildings. The majority of new, and in many cases, more extravagant, dwellings were constructed on the western side of Quay Street fronting the Brisbane River.
The Draft Bulimba District Statutory Neighbourhood Plan was currently undergoing its second State interest check, and had been placed on display for public comment. Council submitted that the demolition of the dwelling would be in conflict with the Draft Plan.
Decision: The Court held, in allowing the appeal, that:
- while alterations to the dwelling clearly detracted from its original pre-1946 condition and character, they did not rob it entirely of that character. Looked at objectively, the dwelling was still able to be identified as having pre-1946 traditional building characteristics
- the reasonable visitor would leave Quay Street with the distinct impression that it was comprised of a mixture of architectural styles
- on balance, having regard to its minor contribution to the visual character of this part of Quay Street, and, in particular, the significant physical differences between it and other relevant dwellings, the subject dwelling did not relate in any meaningful way to the existing traditional building character of Quay Street
- the demolition of the dwelling would have no noticeable impact on, or cause any loss of significance from the existing traditional building character in the street
- the Court did not consider the Draft Plan to be of any assistance to the Respondent in this proceeding. To allow the appeal would not result in the types of conflicts and adverse impacts on future town planning considered in cases such as Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 and Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224
- to stand in the way of demolition and redevelopment was a serious and far reaching limitation upon a land-owner's rights. Accordingly, the Court should adopt a cautious approach and, in circumstances where existing laws and policies were satisfied, it would be wrong to inflict such limitations based on proposed changes to the Planning Scheme, save for where such a result was clearly justified. This was not such a case.
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