In brief

The case of Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42 concerned an appeal commenced in the Planning and Environment court by Dushyandan Kanesamoorthy and Harjasleen Singh against the Brisbane City Council's decision to refuse a development application for a preliminary approval to carry out building work for the demolition of a pre-1946 house located at 80 Kent Street, Hamilton.

The Council refused the development application on the basis that the proposed demolition of the dwelling was in conflict with the provisions of the Traditional Building Character (demolition) Overlay code.

The Court, after considering the relevant provisions of the demolition overlay code, found that the proposed demolition did not "satisfy Acceptable Outcome AO5(d), Acceptable Outcome AO5(c) or Performance Outcome PO5(c). It follows that the dwelling should be protected as envisaged by Overall Outcomes 2(a) and 2(d) of the Purpose of the Code" and dismissed the appeal.

The applicants submitted that the proposed demolition should not have been refused by the Council

The applicants appealed the Council's decision to refuse the development application on the following grounds:
  • The traditional character of Kent Street was highly eroded and therefore the proposed demolition of the dwelling would not result in a significant loss of traditional character.
  • Given the number of modern multi-unit dwellings mixed in with pre-1946 dwellings, Kent Street lacked traditional character.
  • The visual character of Kent Street was influenced by the number of modern multi-unit dwellings rather than the pre-1946 dwellings and the dwelling itself was not important to the post-1946 character of Kent Street.

The demolition overlay code imposed alternatives rather than cumulative requirements in considering whether the proposed demolition of a dwelling was in conflict with the code

The Council and the Applicants agreed that OO2(a), OO2(d), PO5(c), AO5(c) and AO5(d) of the demolition overlay code required consideration.

The Court noted that under the Brisbane City Plan 2014, if the proposed demolition complied with any of the Performance Outcomes or Acceptable Outcomes then the proposed development would be said to comply with the purpose and overall outcomes of the demolition overlay code.

Court found that Kent Street was of a mixed character and could not be said to be a street that had no traditional character

The heritage expert of the Applicants expressed the opinion that Kent Street did not have a traditional building character, but rather a modern character based on a numerical analysis of the number of post-1946 dwellings to pre-1946 dwellings.  On the other hand, the heritage expert for the Council regarded that Kent Street was mixed with both traditional and non-traditional characteristics.  In Council's heritage expert's view, Kent Street could not be described as not being of traditional character.

The Court determined that the lots located on Kent Street, whilst outside of the Traditional Building Character (Demolition) Overlay, contributed to the traditional character of the street and should be included in the numerical analysis.  This provided a more balanced distribution between traditional and modern dwellings and the Court found that Kent Street fell into the rare 'mixed character' street type.

The Applicants raised concerns on whether Kent Street could be divided into segments, with each area exhibiting different characteristics.  In Leach v Brisbane City Council [2011] QPELR 609 the Court determined that the entire street must be identified as one particular type of character.  The Court found that a mixed character of both traditional and non-traditional dwellings still applied as a single character to the street and the proposed demolition did not satisfy AO5(d) of the demolition overlay code.

Despite the alterations to the dwelling the Court found that the proposed demolition would result in a significant meaningful loss of traditional character

The Applicants submitted that the quantum of loss to the traditional character was not significant given that parts of the dwelling had been visibly altered and the dwelling sat "within the lower acceptable range of the Codes meaning of traditional character."  

However, the Applicants' heritage expert agreed that despite the unsympathetic alterations the dwelling still exhibited a traditional building character and accepted that the dwelling retained the traditional character features identified by the Council's heritage expert.

In Unterweger v Brisbane City Council [2012] QPLER 375, the Court considered that whether alterations to a dwelling would deprive a building of its traditional character was a question of fact and degree.  It was noted in Unterweger that it was "not necessary that the street or dwelling to be pristine, remarkable, unique or have architectural merit for demolition to be refused".

The Court found that despite the alterations, the dwelling still exhibited significant traditional building characteristics and for the purposes of AO5(c), the proposed demolition would "result in a significant and meaningful loss of traditional building character".

Court found that the traditional character of the dwelling provided a positive visual contribution to Kent Street and PO5(c) was not satisfied

In its consideration of PO5(c), the Court by reference to Marriot v Brisbane City Council [2015] QPEC 45 noted that the term 'positively' was intended to mean a contribution which was favourable and added to the visual character of the street as opposed to being neutral or detracting from it.

While the Applicants' heritage expert expressed the view that an average person walking down Kent Street would not gain much satisfaction from the dwelling's traditional visual contribution to the post-1946 characteristics,  the Council's heritage expert gave evidence that the dwelling's "Interwar style traditional character" was a highly recognisable traditional form of Kent Street.

The Court accepted the evidence of the Council's heritage expert and considered that the presence of the dwelling was a positive contribution to the traditional building characteristics of Kent Street which still displayed the characteristics established pre-1946. The Court therefore determined that the proposed demolition of the dwelling did not satisfy PO5(c).

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 2019.

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