Australia: Court finds insufficient grounds to support the demolition of a character house, given conflicts with relevant planning scheme

Last Updated: 4 June 2018
Article by Ian Wright, Nadia Czachor and Russell Buckley

In brief

The case of Bilalis v Brisbane City Council [2017] QPEC 42 concerned an appeal by an Applicant to the Planning and Environment Court against the decision of the Brisbane City Council to refuse a development application seeking a preliminary approval for building work to demolish a pre-1947 house at Albion.

In deciding the appeal, the Court was required to assess the application anew to firstly determine whether it was in conflict with the provisions of the Brisbane City Plan 2014 and secondly to identify if there were sufficient grounds to justify approval despite any conflict.

To determine whether the application was in conflict with the Brisbane City Plan 2014, the Court drew on the provisions of the Traditional building character (demolition) overlay code to define the following issues:

  • whether the house was in a street that had no traditional character;
  • whether the house was a building which, if demolished, would result in the loss of traditional building character;
  • whether the house contributed positively to the visual character of the street; and
  • whether the house complied with the purposes of the overlay code.

The Court ultimately held that the building work was in conflict with the provisions of the Traditional building character (demolition) overlay code and the Appellant had failed to demonstrate any grounds to overcome the conflict.

Appellant appealed against the Council's decision to refuse the development application

The Appellant lodged with the Council a code assessable development application seeking preliminary approval for the demolition of a pre-1947 residential dwelling at 7 Birkbeck Street, Albion. The house was located within the Low-medium density residential (2 or 3 storey mix) zone and the Traditional building character (demolition) overlay of the Brisbane City Plan 2014.

The Council refused the development application on the basis that the building work conflicted with provisions of the Brisbane City Plan 2014. The Appellant subsequently appealed the Council's decision under section 461 of the now repealed Sustainable Planning Act 2009. Under section 311 of the Planning Act 2016, the appeal was decided under the Sustainable Planning Act 2009.

The appeal proceeded as a hearing anew in accordance with section 495 of the Sustainable Planning Act 2009 and the Court assessed the building work against the relevant codes of the Brisbane City Plan 2014.

The Court was required to decide the development application in accordance with the decision rules provided under section 324 and section 326 of the Sustainable Planning Act 2009, which relevantly required that its decision must not conflict with the Brisbane City Plan 2014, unless there were sufficient grounds to justify the decision despite the conflict.

Court held that the house was located on a street with traditional character

Heritage experts for both parties agreed that the design of the house was consistent with the standards of the Traditional building character planning scheme policy of the Brisbane City Plan 2014. The Court also found that Birkbeck Street accommodates a total of five pre-war 1947 character buildings, including a heritage listed corner store and a further post-1947 character building.

The Court's assessment of Birkbeck Street's traditional character was guided by several principles from earlier cases. Such principles highlighted that the street's visual character is to be considered as a whole and that it was not necessary for the street to be in pristine condition or to present a homogenised traditional character.

The Appellant's expert compared the current streetscape with its appearance in 1946 to support the contention that the introduction of multi-unit dwellings and commercial buildings had substantially shifted and depleted the prevailing traditional character of the streetscape. The Court disagreed with this approach stating that a proper assessment must focus on whether the existing character of the street would be compromised by the proposed demolition.

The Court found that Birkbeck Street had traditional character value given the number of character houses evenly distributed along the streetscape and held that a person would tend to perceive the modern buildings at the corner of the street as forming part of Sandgate Road.

Court held that the demolition of the house would result in a meaningful, and unacceptable, loss of traditional building character

The Court cited (at [42]) the following observation in Se Ayr v Brisbane City Council [2016] QPELR 223: "reference to demolition not resulting in the loss of traditional building character should not be approached in absolute terms...the relevant loss should be approached on the basis that it is one which is meaningful or significant."

The Appellant's heritage expert argued that demolition of the house would not result in the loss of traditional building character on the basis that the existing character of Birkbeck Street and the surrounding area had already been eroded by the inclusion of post-1947 development.

The Council's heritage expert presented aerial photographs taken in 1946 to demonstrate that the house continued to display the hallmarks of a 1930s traditional timber and tin Queensland house. The Council's expert was of the opinion that the demolition of a house of this type would result in the loss of traditional building character from the street.

The Court preferred the photographic evidence presented by the Council's expert and found that demolition of the house would result in the loss of traditional building character.

Court held that the house positively contributed to the visual character of the street

The Court relied again on Se Ayr v Brisbane City Council [2016] QPELR 223 and cited the following statement from the Court that "the expression contribute "positively" should be interpreted in the way indicated by Bowskill DJC in Marriot v Brisbane City Council [2015] 910; [2015] QPEC 45; namely, whether the contribution is a positive one in that it adds to the visual character of the street rather than being neutral." (At [57].)

The Court also relied on the statement of the Court in Lonie v Brisbane City Council [1998] QPELR 209 to highlight that whether the house contributes positively to the visual character of the street is to be judged from the position of "the average person walking the street and looking about, with a perception which falls somewhere between that of a Ph.D in Architectural History on the one hand and that of a Philistine on the other." (At [60].)

Despite the presence of screening vegetation, the Court held that the house positively contributed to the visual character of Birkbeck Street by providing an example of intact traditional character.

Court found that the building work failed to comply with the overall outcomes of the Traditional building character (demolition) overlay code

The Court noted that section 5.3.3 of the Brisbane City Plan 2014, when properly construed, enables a development application to comply with the Traditional building character (demolition) overlay code by complying with its overall outcomes.

The Court considered overlay mapping and reporting exhibited by the parties' experts and determined that the demolition of the house would conflict with overall outcome 2(a) in that the subject house "gives the areas in the traditional building character overlay their traditional character and traditional building character."

The Court was persuaded by evidence given by the Council's heritage expert and concluded that the house, when combined with the remaining intact traditional timber and tin houses on the street, formed an important part of a streetscape established in 1946 or earlier. On this basis demolition of the house failed to comply with overall outcome 2(d) of the overlay code.

Court dismissed the appeal and found no grounds to justify approval despite the conflict

The Court held that the proposed demolition was in conflict with the Brisbane City Plan 2014. The appeal was dismissed as the Appellant had failed to advance any grounds to justify approval despite the conflict.

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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