Proposed onsite relocation of heritage structure refused due to removal of front garden

by Ian Wright, Nadia Czachor, Luke Grayson
30 November 2017

In brief

The Planning and Environment Court dismissed an appeal by Alloa Properties Pty Ltd against the refusal by the Brisbane City Council of a development application which sought approval for a proposal to relocate the existing heritage building some 20 metres closer to the road frontage, on the basis that the front garden formed a part of the heritage significance of the site and its proposed destruction conflicted with the Brisbane City Plan 2014.
 

Appeal against the Council's refusal of a development application for material change of use and preliminary approval for building work
 

The case of Alloa Properties Pty Ltd v Brisbane City Council & Ors [2017] QPEC 51 relates to a proposal by Alloa Properties to construct three townhouses on a site at New Farm. The proposal also provided for the extant heritage building to be relocated approximately 20 metres closer to the road frontage to make room for the three townhouses to be constructed to the rear of the heritage building.
 
Alloa Properties Pty Ltd applied to the Council under the repealed Sustainable Planning Act 2009 for a development permit for a material change of use and preliminary approval for building work to implement the development proposal. This application was refused by the Council and Alloa Properties appealed to the Planning and Environment Court against the Council's decision.
 

Town planning experts agreed that there were not sufficient grounds to justify approval

The town planning experts for all parties agreed that to the extent there was conflict with the provisions of the Brisbane City Plan 2014, sufficient grounds did not exist to justify approval despite the conflict.
 
The Court therefore determined that the sole issue in dispute was whether the proposed development involved conflict with the Brisbane City Plan 2014, in particular the Heritage overlay code.

Issue in dispute was whether or not the garden formed a part of the heritage place

The alleged conflict with the Brisbane City Plan 2014 related to the proposed relocation of the heritage building from its current position set back from the road by some 25 metres, to a position set back by some 5-6 metres. The area on which the building was to be resituated on is currently covered by a garden, which the Council considered to form part of the heritage place.
 
The heritage citation which had been prepared for the site identified the following reasons for heritage significance:
 
  • That the site is important in demonstrating the evolution and pattern of the city's or local area's history.
  • That the site is important in demonstrating the principal characteristics of a particular class or classes of cultural places.
  • That the site is important because of its aesthetic significance, including the "attractive garden setting".
  • That the site has a special association with the life or work of a particular person, group or organisation of importance in the city's or local area's history, including by being the home of Edward Granville Theodore when he was the Premier of Queensland.

The Court found that the front garden formed part of the significance of the site 

The aspects of heritage significance potentially relevant to the front garden were aesthetic significance and special association with the life of a particular person.
 
In determining whether the garden was important because of its aesthetic significance, evidence given by the landscape and gardening experts on whether the garden setting could be described as "attractive" was thoroughly considered by the Court. The Court concluded that whilst the garden is probably awkward and lacking in harmony and style it would be accurate to describe it as an "attractive garden setting".
 
In determining whether the garden was important because of its special association with the life of Edward Granville Theodore, the evidence provided by the expert historians established that the front garden was of particular significance to Theodore, but that part of the garden had been sold and developed and in the remaining garden area few plants still exist from the time of Theodore's ownership. The Court found that the front garden has a special association with the life of Theodore and it was likely the site for social and philanthropic events and was therefore of heritage significance.
 

Removal of garden area involves conflict with planning scheme

The Court found that the relocation of the heritage building onto the site of the front garden involved conflict with the Brisbane City Plan 2014, in particular the Heritage overlay code and the Low-medium density residential zone code. 
 
The conflicts with the Heritage overlay code related to the impact of the proposal on the conservation of the heritage place and the damage to its cultural heritage significance as a result of the destruction of the front garden. 
 
The conflicts with the Low-density residential zone code related to bulk and scale issues which were exacerbated by bringing the existing heritage building some 20 metres closer to the road frontage.
 
The Court therefore dismissed the appeal by Alloa Properties and upheld the decision of the Council to refuse the development application.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.