Australia: Court upholds the decision of the Council to refuse a development permit for the demolition of a pre-1911 federation era house

The case of Birleymax Pty Ltd v Brisbane City Council [2017] QPEC 44 involved an Applicant appeal against the decision of the Council to refuse a development application for the demolition of a house at 87 Birley Street, Spring Hill.

In ultimately finding in favour of the Council and dismissing the appeal, the Court held that the proposed development was in significant conflict with the Brisbane City Plan 2014 and that no grounds had been demonstrated in favour of the proposed development which were sufficient to justify demolition of the house notwithstanding the conflict.

Issues in dispute were confined to discrete provisions of the Traditional Building Character (Demolition) Overlay Code

The issues in dispute were whether the proposed development conflicted with overall outcome (2)(b) of the Traditional building character (demolition) overlay code (Demolition Code) which operates to "protect a federation era or earlier building by limiting demolition or removal to only where a building is structurally unsound", and performance outcome PO6 which applies if the subject building is pre-1911 and only permits demolition where the significant building "is not capable of structural repair" (at [2]).

Court acknowledged that there is a theme running through the Brisbane City Plan 2014 which seeks to preserve traditional building character

In analysing the relevant provisions of the Brisbane City Plan 2014, the Court observed that there exists in the Brisbane City Plan 2014 a clear intention to preserve traditional building character. The Court found that such intention was evident from the following provisions of the Brisbane City Plan 2014:

  • Theme 2, element 2.1 of the Strategic framework, which includes specific outcomes and land use strategies requiring the protection of character buildings built in 1946 or earlier and the maintenance of traditional building character which contributes to the character and streetscape of the area.
  • Overall outcome 3(a) of the Petrie Terrace and Spring Hill neighbourhood plan, which requires the protection of the character of the built environment by restricting the demolition of character buildings and notes that traditional modest residential dwellings erected on small allotments are a hallmark of Petrie Terrace and Spring Hill.
  • The purpose of the Demolition Code, which seeks to implement the strategic plan by protecting residential buildings constructed prior to 1946 and limits the demolition or removal of federation era buildings to scenarios in which they are structurally unsound.

To determine the age and origin of the house, the Court considered evidence from the parties' respective heritage architects and that of a historian

To determine the application of the Demolition Code, the Court was required to first determine when the building was built. Evidence concerning the age and origin of the house was given by two heritage architects and a historian.

In tracing the history of the house, the Court was taken through various historical documents, survey plans, committee minutes, and sewerage and drainage plans, as well as the expert evidence of the parties' heritage architects. The evidence demonstrated that, while the house had undergone various alterations and relocations, it was originally constructed in the federation era being the period between 1890 and 1915.

The Court held that the house was a federation era building constructed pre-1911 and that the proposed development was therefore in conflict with both overall outcome (2)(b) and performance outcome PO6 of the Demolition Code.

Court found that there were not sufficient grounds to justify a decision to approve the demolition despite the conflict

The Court re-stated the following 'three-stage test' enunciated in Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 for determining whether there are "sufficient grounds" to approve the proposed demolition (at [17]):

" 1. examine the nature and extent of the conflict;

2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; and

3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict."

The Appellant contended that the nature and extent of the conflict was minor because there was no conflict with the balance of the Demolition Code nor any other relevant provisions of the Brisbane City Plan 2014. It also asserted that the house did not exhibit traditional building character or make a positive contribution to the streetscape, and therefore did not warrant preservation.

The Council submitted that, given its pre-1911 status, the house was assumed to have the requisite character warranting its preservation and that the only relevant consideration in respect of its demolition was whether the building was structurally unsound.

The Court accepted that the Brisbane City Plan 2014 made it clear that a federation era building was a special class of building which could only be demolished where it was structurally unsound. As the building was structurally sound, the Court therefore found that the proposed demolition was significantly in conflict with the relevant provisions of the Demolition Code.

The Appellant submitted that there was no public interest in preserving the house for the following reasons:

  • the building had been substantially altered and does not contribute positively to the visual character of the street;
  • the building does not represent traditional building character;
  • demolition will be no loss of traditional building character.

In the absence of a public interest in preserving the building, the Appellant submitted that there were sufficient planning grounds to approve the proposed demolition.

The Court found that the Appellant had misstated the meaning of "grounds" and the purported ground raised was an illusory one. The Court stated that in order to qualify as a "ground" the appellant must demonstrate that the actual demolition of the house was in the public interest, which the Appellant had not endeavoured to do.

Further, the Court held that the fact that the structurally sound house does not currently contribute to the traditional building character of the street is not a matter which justifies the significant conflicts with the relevant provisions of the Brisbane City Plan 2014.

The Court therefore concluded that the grounds advanced by the Appellant were not sufficient to justify approving the proposed demolition notwithstanding the conflicts.

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.

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Authors
Ian Wright
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