Insights

In brief

The Planning and Environment Court decision of Tong Town Planning & Development Services Pty Ltd v Brisbane City Council [2017] QPEC 70 concerned an Applicant appeal against the decision of the Brisbane City Council to refuse a development application for the demolition of a pre-1946 house at Milton Road in Auchenflower. 
 
Finding in favour of the Applicant and allowing the appeal, the Court held that although the demolition of the pre-1946 house would result in a loss of traditional character, the pre-1946 house did not make a positive contribution to the visual amenity of Milton Road. 

Location of the pre-1946 house

The pre-1946 house is located atop an elevated section of Milton Road, approximately seven metres above street level. It sits atop a near vertical rock retaining wall, the base of which is separated from the roadway. 
 
Above the retaining wall is a 1.2 metre fence which, with the aid of dense vegetation, obscures the pre-1946 house from view, save for a select few vantage points, which cannot be readily perceived by motorists travelling along Milton Road. 

Issue in dispute 

The issue in dispute was whether the development application was in conflict with various provisions in the Traditional building character (demolition) overlay code in the Brisbane City Plan 2014
 
It was uncontentious that the house expressed traditional building character as a pre-1946 residential building. 
 
It was also uncontentious that the presentation of the pre-1946 house to Sawtell Lane was not relevant, and that the source of the alleged conflict with the Traditional building character (demolition) overlay code arose from the presentation of the pre-1946 house to Milton Road.

Traditional building character

The parties relied on evidence from their respective experts to establish the nature and extent of the traditional building character of the pre-1946 house. 
 
The Court favoured a combination of the views expressed by the experts. It held that while parts of Milton Road contain easily identified buildings that display traditional building character, the subject pre-1946 house, as a consequence of its vertical separation from Milton Road, did not make a contribution of any great significance to the traditional building character of the precinct. 
 
The Court also endorsed the view that the pre-1946 house was an "abstraction" and, apart from an aerial perspective, lacked coherent presentation due to the fact that it can "only be glimpsed to a limited extent from a few select vantage points ... [and is] not readily perceived by motorists travelling along Milton Road" (at [6]).

Traditional building character (demolition) overlay code

The pre-1946 house is located on land within the Traditional building character (demolition) overlay code of the Brisbane City Plan 2014. The Traditional building character (demolition) overlay code therefore applied to the assessment of the development application.
 
The purpose of the Traditional building character (demolition) overlay code provides as follows:
 
"The purpose of the code will be achieved through the following overall outcomes:
 
(a) Development protects residential buildings constructed in 1946 or earlier that give the areas in the Traditional building character overlay their traditional character and traditional building character.
(d) Development protects a building constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier. "
 
The Court held that on the facts before it, the only applicable performance outcome was Performance Outcome 5 (PO5), which relevantly states as follows:
 
"development involves a building which … does not contribute positively to the visual character of the street.
 
Acceptable Outcome 5 (AO5) relevantly provides, among other things, the following:
 
"development involves a building which if demolished will not result in the loss of traditional building character or is in a street that has no traditional character.” 
 
In respect of AO5, the Court was satisfied that it could not be said that Milton Road is a street that has no traditional character. The Court accepted that traditional building character is present in the part of Milton Road where the pre-1946 house is situated. Equally, despite the limited contribution which the pre-1946 house makes to the traditional building character of Milton Road, the Court observed that it could not be said that demolition of the pre-1946 house would not result in the loss of traditional character.
 
Notwithstanding, the Court held that it was not sufficient for the house to contribute to the visual character of Milton Road; rather it must contribute positively. 
 
In this regard, the Court referred to its earlier decision in Marriott v Brisbane City Council [2015] QPEC 45, where it relevantly held as follows (at [10]):
 
"What is intended by the word “positively” is that there is a contribution which is favourable – that is, it adds to the visual character of the street, as opposed to being neutral (or, for that matter, detracting from it).
 
On that basis, the Court held that the contribution that the pre-1946 house made to the visual character of Milton Road was "extremely limited" and "[could not] be described as favourable … indeed its contribution is so minor given its presentation that it does no more than make a neutral contribution" (at [13]). 
 
The Court therefore allowed the appeal.

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.​

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