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
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
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
Decision: The Court held, in allowing the
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
the reasonable visitor would leave Quay Street with the
distinct impression that it was comprised of a mixture of
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
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
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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