On 1 September 2016, His Honour Judge Searles published reasons for judgment in the Planning and Environment Court Appeal, Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42.

This judgment is the latest in a line of decisions of the Planning and Environment Court relating to character house considerations relevant to the Demolition Code in the former Brisbane City Plan 2000, or the Traditional Building Character (Demolition) Overlay Code in the current Brisbane City Plan 2014.

Central to the appeal was a determination of the building character exhibited by the subject dwelling and its surrounding streetscape.

While the facts of the case are not especially unique, the judgment helpfully collects and considers the preceding cases with respect to the principles of interpretation relevant to whether:

  • development involves a building which is in a street which has no traditional character;
  • development involves a building which, if demolished, will not result in the loss of traditional building character; and
  • development involves a building which does not contribute positively to the visual character of the street.

The principles identified and endorsed in Kanesamoorthy include:

  • The principles summarised by His Honour Judge Rackemann in Unterweger v Brisbane City Council [2012] QPELR 335, such as it not being necessary for a street or dwelling to be "pristine" in order for the demolition to be refused;
  • The need to consider whether the street can realistically or reasonably be described as having any traditional character1;
  • If a street is regarded as having a mixed character, it is difficult to conclude that the street has no traditional building character;
  • The task is to consider the visual character of the street as a whole, not the character of certain houses or groups of houses in isolation. A single character must be identified in respect of the entire street, be that modern character, traditional character, or mixed character2;
  • A streetscape with mixed character (including a predominance of modern character buildings) does not necessarily rob a subject street of meaningful traditional character3;
  • The loss of traditional building character must be significant, meaningful, concerning or unacceptable, rather than simply amounting to any loss at all4;
  • Alterations do not necessarily deprive a building of its traditional character5;
  • A building will contribute positively to the visual character of the street where the contribution is favourable and adds to the visual character of the street as opposed to being neutral or detracting from it6;
  • Where a street exhibits mixed traditional and non-traditional building character, it is difficult to conclude that a traditional dwelling does not contribute positively to that mixed character7 especially where the street has not moved well away from the traditional character it manifested in 1946.8

Footnote

1 The Court in Kanesamoorthy being the same as Rackemann DCJ set out in Guiney v Brisbane City Council [2016] QPEC 26

2 Leach v Brisbane City Council [2011] QPELR 609

3 Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223

4 Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223; Hamilton v Brisbane City Council [2016] QPEC 28; Wallace v Brisbane City Council [2012] QPELR 137

5 Unterweger v Brisbane City Council [2012] QPELR 335

6 Marriott v Brisbane City Council [2015] QPEC 45

7 Applying Lucas v Brisbane City Council [2015] QPEC 25

8 Leach v Brisbane City Council [2011] QPELR 609

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