In brief

The case of Taylor & Anor v Brisbane City Council [2020] QPEC 5 concerned an appeal to the Planning and Environment Court against the Council's refusal of a development application for a development permit to carry out building work (demolition of a pre-1946 house).

The Court considered two questions at the hearing. The first question was whether the proposed demolition of the dwelling complied with the Traditional Building Character (Demolition) Overlay Code in the City Plan 2014 (Demolition Code). The second question was, if the Court found the proposed demolition did not comply with the Demolition Code, whether the Court should then exercise its discretion in favour of approving the demolition pursuant to section 60(2)(b) of the Planning Act 2016 (Planning Act). 

The Court found that the proposed demolition of the dwelling would not result in a meaningful or significant loss of the traditional building character of the street and that there was therefore compliance with the Demolition Code. The Court held that the Planning Act mandated the approval of the Applicant’s application given that compliance with the Demolition Code had been demonstrated. 

Background 

The Applicant made a code assessable development application to the Council for a development permit to carry out building work involving the demolition of a pre-1946 timber house located in Albion. The Council refused the development application on the basis that the proposed demolition did not comply with the Demolition Code. 

At the hearing, it was agreed by the expert heritage architects for the Council and the Applicant, that the dwelling was of traditional building character. Whilst the dwelling had been altered over the years, the expert witnesses did not consider that the alterations materially diminished the dwelling’s traditional building character. 

The dwelling was situated on land that had a narrow street frontage. The dwelling was set back 16 metres from the street and reversed orientated, with the rear of the dwelling facing the street. The rear of the dwelling did not have any features that clearly exhibited a traditional building character. 

Compliance with the relevant performance outcome 

The Council argued that the proposed demolition of the dwelling did not comply with Performance Outcome PO5(c). 

Performance Outcome PO5(c) of the Demolition Code relevantly states as follows: 

Development involves a building which: 

… 

(c) does not contribute to the traditional building character of that part of the street within the Traditional building character overlay.

At the hearing, it was agreed by the parties that if the Court found there to be compliance with one of the related acceptable outcomes, including Acceptable Outcome AO5(c), then there would be compliance with Performance Outcome PO5 of the Demolition Code. Relevantly, Acceptable Outcome AO5(c) of the Demolition Code states as follows: 

Development involves a building which: 

(c) if demolished will not result in the loss of traditional building character; or…” 

In considering whether there was compliance with Acceptable Outcome AO5(c), the Court considered what part of the street ought to be taken into account, and whether the proposed demolition would result in that part of the street experiencing a meaningful or significant loss of traditional building character.

Determining the relevant part of the street 

The Court held that the relevant part of the street ought to be that part of the street from which the dwelling was visible. From that part, the Court noted that there are a number of dwellings with traditional building character. However, the Court held that these dwellings are all bookended or split by new dwellings and multi-storey buildings.

Determining whether demolition would result in a meaningful or significant loss of traditional building character 

The Council’s expert witness contended that the building displayed the characteristics of a traditional building and that the dwelling’s setback on the land and reverse orientation was irrelevant in the assessment of the dwelling’s traditional building character. This opinion was based on Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41 (Delta Contractors' Decision), in which it was stated that “[t]raditional character relates to streetscape or locality" and that "[t]raditional building character relates to a building” (at [55]). 

The Court rejected this opinion, and found that the Delta Contractors' Decision merely provides a distinction between the phrases, but does not deem other relevant facts and circumstance to be irrelevant in the assessment of traditional building character. The Court held that the examination of traditional building character and traditional character under the Demolition Code and the associated Traditional Building Character Planning Scheme Policy is to be informed by a number of relevant matters, including the setback and the dwelling’s orientation. 

The Court found that the proposed demolition of the dwelling would not result in a meaningful or significant loss of traditional building character. The Court's finding was based on the dwelling's limited visibility and setback from the street, reverse orientation and its limited visual connection with other traditional character buildings. The Court held that the dwelling made a negligible contribution to the streetscape. 

As the demolition would not result in the loss of traditional building character, the Court held that the Applicant had demonstrated compliance with Acceptable Outcome AO5(c) of the Demolition Code. Furthermore, compliance with Performance Outcome PO5(c) had also been demonstrated as the dwelling did not contribute to the relevant part of the street’s traditional building character. 

Compliance with the relevant overall outcomes

The Council also submitted that the proposed demolition did not comply with Performance Outcomes 2(a) and 2(d) of the Demolition Code, which state as follows: 

(a) Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character or traditional building character.

(d) Development protects a residential building or part of a building constructed in 1946 or earlier where it forms a part of a character streetscape comprising residential dwellings constructed in 1946 or earlier nearby in the street within the Traditional building character overlay.”

The Council submitted that the proposed demolition of the dwelling would not protect the traditional building character of the area, and therefore there was non-compliance with Overall Outcome 2(a) of the Demolition Code. The Council also submitted that demolition of the dwelling would be contrary to Overall Outcome 2(d) of the Demolition Code, as it formed a part of the streetscape by being visible from the street and proximate to the other dwellings with traditional building characteristics. 

The Court rejected these submissions, and reiterated that the dwelling did not contribute to the traditional building character or traditional character of the street as it was both visually and physically disconnected from the street. 

Conclusion

The Court held that there was compliance with the Demolition Code and set aside the Council’s decision to refuse the development application. The Court adjourned the appeal to allow the parties to agree on conditions. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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