The case of Mariott v Brisbane City Council  QPEC 45 concerned an appeal in the Planning and Environment Court against the Brisbane City Council's decision to refuse Julie Lois Mariott's development application for a preliminary approval to demolish a house on Sydney Street at Kedron.
The council's refusal of Ms Mariott's development application was on the grounds that the proposed demolition did not comply with the Traditional building character (demolition) overlay code.
The relevant codes of the demolition overlay code under consideration by the court were performance outcome PO5(c) and acceptable outcomes AO5(c) and (d). However, the court noted that each of the outcomes were alternatives and if any one of the outcomes were met, then by operation of the Brisbane City Plan 2014, the purpose and overall outcomes would be complied with, and, consequently, the demolition overlay code would be complied with.
The court concluded that the demolition of the house would not result in "significant, concerning or unacceptable loss of traditional building character" (AO5(c)). In forming this conclusion, the court had regard to the character of Sydney Street as a whole and the representation of traditional building character offered by the house to the street. Accordingly, the appeal was allowed by the court.
The court found that the whole of Sydney Street was the relevant area of assessment for the purpose of assessing whether there was any conflict with PO5(c), AO5(c) and (d) of the demolition overlay code
The court considered the differing positions taken by the heritage architectural experts in their joint report in relation to what the "area under assessment" was. Ms Mariott's expert focussed on the whole of the street where the house was located. However, the council's expert focussed on a smaller section of the street more relevantly known as the area comprising the 8 properties (including the house) that were covered by the demolition overlay.
Considered in the context of the Brisbane City Plan 2014, the court adopted a flexible, case-by-case approach in its interpretation and application of the relevant outcomes of the demolition overlay code. Whilst acknowledging that it was the area the subject of the overlay which would primarily be protected by the demolition overlay code, the court considered it appropriate, also in some instances, to apply the demolition overlay code over a broader area. In this instance, the court was of the view that the relevant area of assessment was the whole of Sydney Street and not confined to the 8 properties covered by the demolition overlay as submitted by the council's expert.
The court found that the demolition of the house would not result in the loss of traditional building character as prescribed under AO5(c) of the demolition overlay code
The loss of traditional building character contemplated by acceptable outcome AO5(c) was not considered to be absolute. By reference to Lynch v Brisbane City Council  QPELR 314, Ms Mariott submitted that the loss required to be "significant, concerning or unacceptable, rather than to any loss at all". The council submitted to the contrary but was not successful. In any case, the court accepted Ms Mariott's submission and found no basis to adopt a different interpretation.
Ms Mariott's expert was of the opinion that due to several unsympathetic alterations, the traditional building character of the house had diminished and as such the extent of loss of the character as a result of the demolition was limited. The court found support from the decisions of Litbit Pty Ltd v Brisbane City Council  QPELR 197 and Wallace v Brisbane City Council  QPELR 689 in taking into account the altered appearance of the house.
The council's expert, on the other hand, contended that the demolition of the house would result in the loss of traditional building character. A number of supporting arguments were submitted by the council's expert. One of the arguments was that in assessing whether the demolition of a pre-1946 house would result in a significant, concerning or unacceptable loss of traditional building character from the relevant street, this loss should be measured against the post-1946 houses which were considered sympathetic to the traditional building character, instead of measuring the loss in terms of the actual traditional building character present in the street.
The court found difficultly in that approach and noted that the traditional building character in Sydney Street was confined to particular houses and that their effect on the character of the street had been diluted by the overwhelming amount of surrounding post-1946 development. Further, the contribution of the house to the traditional building character in Sydney Street had also been diluted due to the unsympathetic alterations made to it.
Accordingly, the court preferred the evidence of Ms Mariott's expert and held that having regard to the character of Sydney Street as a whole and the representation of the traditional building character by the house, its demolition would not result in significant, concerning or unacceptable loss of traditional building character.
Although the court found that the house was in a street that had traditional character as prescribed under AO5(d), the demolition overlay code was complied with given that the demolition of the house would not result in "significant, concerning or unacceptable loss of traditional building character"
The court did in turn deal with acceptable outcome AO5(d) and performance outcome PO5(c). Acceptable outcome AO5(d) dealt with whether the house was in a street that had no traditional character. The court found in favour of the council's expert in that it was difficult to conclude that the street had no traditional character due to the "not insignificant traditional character" represented by the pre-1946 houses on the street.
Performance outcome PO5(c) concerned whether the house was a building which did not contribute positively to the visual character of the street. The court observed that for this performance outcome to be met, it had to be shown that the house contributed positively to, or added to, the visual character of Sydney Street. It would not be considered sufficient where the house positively contributed to the visual character of the street because of the traditional building character represented by the house and its location within a group of houses covered by the overlay.
Nonetheless, given that the proposed development complied with acceptable outcome AO5(c), it complied with the purpose and overall outcomes of the demolition overlay code and therefore, complied with the demolition overlay code.
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.