Australia: Court found that the costs to repair a pre-1947 property were reasonable when they amounted to 15% of the value of the property

In brief

The case of Althaus & Anor v Brisbane City Council [2017] QPEC 41 concerned an Applicant appeal against a decision made by the Brisbane City Council to refuse a development application for a preliminary approval to carry out building work for the demolition of a pre-1947 residential building located at the corner of Kingsley Terrace and Wolsey Parade, Wynnum.

The Council refused the development application on the basis that the proposed demolition conflicted with the Traditional building character (demolition) overlay code (Demolition Code) and the Wynnum-Manly neighbourhood plan code (Wynnum-Manly Plan Code) of the Brisbane City Plan 2014, in particular in the following respects:

  • the building was reasonably capable of being made structurally sound (overall outcome 2(g), performance outcome PO5(b) and acceptable outcome AO5(b) of the Demolition Code);
  • the building was in a street that had traditional character (acceptable outcome AO5(d) of the Demolition Code);
  • the proposed demolition would result in a material loss of traditional building character (acceptable outcome AO5(c) of the Demolition Code);
  • the building contributes positively to the visual character of Kingsley Terrace and Wolsey Parade (performance outcome PO5(c) of the Demolition Code);
  • the proposed demolition did not comply with overall outcomes 2(a) and 2(d) of the Demolition Code; and
  • the proposed demolition conflicted with the purpose of the Wynnum-Manly Plan Code.

The Court concluded that the development application was in conflict with the Demolition Code and the Wynnum-Manly Plan Code and dismissed the Applicant's appeal.

Court found that the subject building is reasonably capable of being made structurally sound

The engineering experts agreed that the building is capable of being made structurally sound. The issue before the Court was whether the works needed to be undertaken to make the building structurally sound were reasonable.

The engineers agreed upon 12 necessary items of repair costing, in round terms, $160,000. The engineers disagreed about seven items of repair, as well as the appropriate contingency amount, being as follows (at [48]):

  1. " replacement of all of the pine flooring (as distinct from 50 per cent only);
  2. demolition and reconstruction of Flats 4 and 5;
  3. replacement of the north and east window sills to tower;
  4. repainting of upper external walls of the building;
  5. upgrading (replacement) of plumbing and electrical services);
  6. replacement of borer damaged cornice, architraves and internal doors;
  7. asbestos removal during the course of carrying out structural restoration works;"

In respect of each of the disagreed items, the Court found that the Appellant was not required to achieve structural soundness or the cost was not material in the overall assessment of reasonableness. In respect of the contingency amount, the Court concluded that $20,000 was an appropriate amount. Therefore, the Court concluded that the total cost to achieve structural soundness was $180,000.

The Appellant urged the Court to find that the cost to achieve structural soundness was unreasonable based on findings in other cases. However, the Court rejected that approach and stated that what is reasonable in each case turns on the facts and circumstances of the individual case.

Having regard to the facts and circumstances of the case, the Court expressed the view that even if a figure of $200,000 was required to make the repairs, "that figure represents only less than 15% of the "as is" value of the property" (at [106]). As such, having regard to the costs to bring the building to a state of structural soundness together with the fact that the work was feasible and achievable, the Court found that the Appellant failed to demonstrate compliance with acceptable outcome AO5(b) and performance outcome PO5(b) of the Demolition Code.

Court found that although Kingsley Terrace and Wolsey Parade were of a mixed character, it could not be said that the streets had no traditional character

To determine the character of the street, the Court had regard to the visual character of the street as a whole rather than the character of the building in isolation.

The Appellant's heritage architecture expert contended that Kingsley Terrace and Wolsey Parade did not have a traditional building character, as the once scattered distribution of pre-1947 houses has been eroded over the years with a number of pre-1947 houses being replaced with contemporary residences which do not represent traditional building form.

Although the Court accepted the observation of the Appellants' heritage architecture expert, the Court found that even though the streetscape has changed over time there is "no point at which a person walking along the street will not have a traditional character house in view" (at [122]).

Consequently, the Court found that the Appellant failed to demonstrate compliance with acceptable outcome AO5(d) of the Demolition Code.

Court found that if the subject building was demolished the loss would be meaningful or significant

The Court stated that the relevant test to be applied to determine whether the demolition of a building will result in a loss of traditional building character is that stated in Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPEC 3. The test, as stated in that case, is that "the 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 Court found that it is equally important to consider the overall intent of the Strategic Framework which, in this case, reinforces "that character housing is important to the community and should be preserved" (at [125]).

The Council's heritage architecture expert opined that if the building was demolished, the demolition would result in the loss of traditional building character as the building is a "very fine example of a traditional 'timber and tin' high set bungalow" and is "a very important component of the traditional character of Wolsey Parade and Kingsley Terrace" (at [129]).

In contrast, the Appellant's heritage architecture expert opined that the demolition would not result in the loss of traditional character as the traditional streetscape character "has already been progressively eroded by the inclusion of post-1946 residences" (at [130]).

The Court reject the opinion of the Appellant's heritage architecture expert on the basis that the expert had failed to take into consideration the full extent of the agreed streetscape when making the expert's assessment. Again, the Court stated that "[t]here is virtually no point at which the hypothetical person walking along either of the streets would not have a building that exhibits traditional building character within view" (at [131]).

The Court also placed weight on the opinions of local residents who regarded the building as being a "local landmark" and an "architecturally and historically significant residence in the district" (at [132]). As such, the Court found that had the building been demolished, the loss of the traditional building would be meaningful. The Court therefore concluded that the Appellant failed to satisfy acceptable outcome AO5(c) of the Demolition Code.

Court found that the traditional character of the building contributes positively to the visual character of Kingsley Terrace and Wolsey Parade

In assessing the importance of a house upon the visual character of a street, the Court noted that one should have regard to the perception of an "average person walking along the street and looking about" (at [135]).

The Court concluded that the subject streetscape is mixed in character and that there is "no point at which a hypothetical person walking along either of the streets would not have a building that exhibits traditional building character within view" (at [138]). The Court went on to reject the opinion of the Appellant's heritage architecture expert, being that the building has a negative impact on the visual character of the street given its scale and setting on a large lot, and was satisfied that the building contributes positively to the visual character of the street.

The Court found that the importance of the building's contribution to the streetscape was reinforced by the local residents' opinion that the building is a "local landmark". The Court therefore found that the Appellant failed to demonstrate compliance with acceptable outcome PO5(c) of the Demolition Code.

Consequently, the Court also found that the proposed demolition did not comply with overall outcomes 2(a) and 2(d) of the Demolition Code given the impact of the loss of the subject building and the contribution the subject building makes to the streetscape.

Court found that the demolition of the subject building, having traditional building character, was in conflict with the Wynnum-Manly Plan Code

In light of the Court's finding with respect to the conflicts with the Demolition Code, the Court found that the proposed demolition did not comply with the relevant overall outcomes in the Wynnum-Manly Plan Code.

In reaching this conclusion, the Court received submissions from the Appellant about an interpretation issue which, given its findings, the Court was not required to determine. The Court did, however, describe the Appellant's' submissions as being of "considerable force" and they are worth noting (at [156]).

Relevantly, the Appellant submitted that overall outcome 3(b) of the Wynnum-Manly Plan Code contains a general statement about "broad and amorphous values or considerations", being the retention of the locality's "strong sense of place including the area's relationship to Moreton Bay, its buildings, seaside landscapes, (and) sense of community identity". However, nothing in the overall outcome or anywhere else in the Wynnum-Manly Plan Code deals directly, indirectly or inferentially with the demolition of a residential dwelling.

The Appellant urged that if a proposed demolition meets the requirements of the Demolition Code, reliance cannot be placed upon the general statement contained in overall outcome 3(b) to nevertheless refuse the development application on the basis of being contrary to the Wynnum-Manly Plan Code. Although the Court did not finally determine the issue, it is worth noting the way in which the Court is likely to determine the issue if required.

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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Ian Wright
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