(Dorney QC DCJ - 4 June 2015)
Download
the judgment
Planning and environment – demolition in DCP – whether building does not contribute positively to the visual character of the street – whether demolition will not result in loss of traditional "tin and timber" character within DCP
Facts: This was an appeal in relation to a development application for preliminary approval for the carrying out of building work for the demolition of a "pre-1946" character house within the Demolition Control Precinct located at 117 Vernon Street, Nundah.
Performance Criteria P1 of the Demolition Code was applicable. P1 required that where there was a residential building, the building "must not contribute positively" to the "visual character of the street".
The only applicable acceptable solution was one part of A1.3. It stated, relevantly, that, where there was a residential building, the demolition of a building would not result in the "loss" of traditional "timber and tin" building "character" within the Demolition Control Precinct.
The experts engaged by the parties agreed that the building on the site was "recognisably" a pre-1946 house which expressed "traditional building character" and that it was "structurally sound and / or capable of structural repair".
The Appellant's expert conceded that the visual character of the street could be described as "mixed", while the Respondent's expert used the term "varied". The northern side of the street had a predominantly post-1946 visual character and the southern side a predominantly pre-1946 traditional visual character.
Decision: The Court held:
- It was not necessary that the street or the dwelling be "pristine" in order for the demolition to be refused.
- It was relevant to enquire whether the street in question had been "robbed" of its traditional character by the extent of redevelopment.
- With respect to a particular building's importance to the "visual character" and amenity of the local streetscape, it should be approached from the perception of an average person walking along the street and looking about.
- The term "character", when used in a planning context, "has a wide meaning and must be considered in the context in which the term is used in the scheme".
- The "street", for which the visual character was under consideration, was the "whole" of that street, although, in appropriate circumstances, a particular street for the purposes of a DCP "may be merely a section of it". For the purposes of consideration of the Demolition Code, the street "may well have more than one character".
- There must be an interpretation open in P1 to properly accommodate "mixed" or "varied" character of the dimension and importance of the subject street. Hence, by whatever trail of such reasoning was used, it could not be concluded that P1 had been satisfied.
- With respect to the term "loss" in A1.3, there was no argument from either side that the loss should be measured other than in terms of "meaningful, "significant", "concerning" or "unacceptable". And "significant" would need to be interpreted as "of significance", rather than, for instance, "predominant".
- While it was acknowledged that the particular demolition did not have to amount "to the straw that would break the camel's back", a stage must eventually be reached whereby successive degradations by small individual percentages caused the requisite particular building character to be gone, which itself would mean that there would, by any such demolition, be no resulting loss of that character.
- It had not been proved to the requisite satisfaction that the demolition of the building on the site would not result in a loss of significance of the relevant character "within" the Demolition Control Precinct, if only because it was one fewer such building in an area that had become significantly degraded.
- Compliance with the Demolition Code had not been established.
