In brief

The case of Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62 concerned an appeal in the Planning and Environment Court by Ken Drew Town Planning Pty Ltd against a decision of the Brisbane City Council to refuse a development application made for the demolition of a pre-1947 house and for a material change of use for a multiple unit dwelling on land at 392-396 Old Cleveland Road, Coorparoo.

In the hearing Ken Drew Town Planning only sought that the appeal be allowed in respect of the aspect of the development application for the demolition of the pre-1947 house, and did not persist in appealing the refusal of the material change of use for the multiple unit dwelling.

The Court found that while the relevant part of the road in which the house was located maintained some traditional character, the demolition of the house would not result in the loss of traditional building character and the house did not contribute positively to the visual character of the road protected by the relevant demolition code. On this basis, the proposed demolition was found to comply with the disputed aspects of the relevant demolition code and the appeal in respect of the aspect of the development application for the demolition of the pre-1947 house was allowed.

Ken Drew Town Planning needed to establish that the proposed demolition met relevant acceptable or performance outcomes of the relevant demolition code of the Brisbane City Plan 2014

The house the subject of the proposed demolition was a pre-1947 Queenslander style house which was in the character residential zone and traditional building character overlay of the Brisbane City Plan 2014.

The issues in the appeal were such that to succeed in the appeal Ken Drew Town Planning needed to show that the proposed demolition complied with one of two acceptable outcomes, or a performance outcome of the traditional building character (demolition) overlay code. The relevant performance outcome and acceptable outcomes required that the house (at [3]):
(a)       is a building which, if demolished, will not result in the loss of traditional building character (AO5(c)); or
(b)       is in a street that has no traditional character (AO5(d)); or
(c)       is a building which does not contribute positively to the visual character of the street (PO5(c)).

Court found that an average visitor would leave the relevant part of Old Cleveland Road with an impression that it had a mixed character but that it maintained some traditional character

The visual character of the relevant part of the road had to be determined by reference to the perception of an average person walking along the road and by considering the whole of the relevant part of the road as opposed to considering particular houses or groups of houses.

The relevant part of Old Cleveland Road for the purposes of the appeal was limited to the part of the road which ran approximately from French Street in the west to Burke Street in the east, with the subject house being located on the northern side and towards the eastern end of this part of Old Cleveland Road. The subject house was set back 10 metres from the road and was flanked on each side by multiple unit dwellings with both of these multiple unit dwellings having been constructed sometime after 1946.

The relevant part of the road had changed considerably since 1946 and while a number of pre-1947 houses remained, it now contained prominent commercial buildings and multiple unit dwellings which had been constructed after 1946.

Having been assisted by the evidence of heritage architects called by each party, the Court found "that the overall visual character of this part of Old Cleveland Road is not one of traditional character (notwithstanding the presence of some traditional character buildings, particularly toward the western end, of the northern side of the Road)" (at [32]). Further, the Court found "the reasonable average visitor would leave this section of Old Cleveland Road with the impression that it is a busy arterial road, with a mixed character, both in terms of uses and architectural style, building scale, size and heritage, but in respect of which the commercial and multiple unit dwellings are the more prominent, by virtue of their size, and stark exposure" (at [33]).

However, despite this considerable departure from the traditional character of the road in 1946, the Court was not willing to accept that the relevant part of the road had "no traditional character" and therefore the Court found that the proposed demolition did not comply with AO5(d) which required that the road have no traditional character.

Court found that the proposed demolition would not result in the loss of traditional building character and that the house did not contribute positively to the visual character of the road protected by the relevant demolition code

The Court noted that the loss of traditional character which is contemplated by AO5(c) of the relevant demolition code is not an absolute loss but is rather a loss of character that is meaningful or significant.

The subject house, which was set back from the road between brick multiple unit dwellings at the eastern end of the relevant part of the road, was isolated from the remaining pre-1947 houses that were clustered towards the western end of the relevant part of the road. These features of the subject house's location and the already significantly degraded traditional building character of the relevant part of the road led to the Court finding that the proposed demolition would not result in "a meaningful or significant loss of traditional building character" (at [40]) and that the proposed demolition therefore complied with AO5(c) of the relevant demolition code.

Although not necessary, having found that the proposed demolition complied with AO5(c) of the relevant demolition code, the Court also considered whether the proposed demolition complied with PO5(c) of the code. This required the Court to determine whether the subject house contributed positively to, as opposed to being neutral or detracting from, the visual character of the street protected by the relevant demolition code and the Brisbane City Plan 2014.

Being located as it was back from the road and separated from the other remaining pre-1947 houses in the relevant part of the road the Court found that "the contribution of the subject house, to the visual character of the Road which is protected by the code and the planning scheme, is not material" (at [47]). On this basis, the Court found that the proposed demolition complied with PO5(c) of the relevant demolition code.

As the proposed demolition was found to comply with AO5(c) and PO5(c) of the relevant demolition code the appeal in respect of the aspect of the development application for the demolition of the pre-1947 house was allowed.

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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