In brief

The case of Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41 concerned an application to the Planning and Environment Court against the Brisbane City Council's (Council) decision to refuse a development application to facilitate a partial demolition of a pre-1911 house and relocate the remaining narrow house to one lot to vacate the current lot. The Applicant had also applied for a preliminary approval for building work to enable extensions to the house and a development permit for a material change of use.

The Court dismissed the appeal in relation to the preliminary approval for building work to facilitate the partial demolition. However, as the Council had indicated in its final submissions that it did not seek to advance a case alleging non-compliance with any of the applicable assessment benchmarks for the preliminary approval for building work associated with the proposed extensions to the dwelling or the material change of use, the Court approved the application to that extent.

Issues in the appeal

The issues in the appeal were as follows:

1. The nature and extent to which the proposed development conflicted with the Traditional Building Character (Demolition) Overlay Code (Demolition Code) having regard to the following provisions:

(a) Acceptable Outcomes AO1.1 and AO5(c);
(b) Performance Outcomes PO1, PO2 and if it applies, Performance Outcome PO5;
(c) Overall Outcomes 2(a), (b), (d) and (h).

2. Whether the Court should exercise its residual discretion under section 60(2)(b) of the Planning Act 2016 to approve the development application even if the development does not comply with some of the assessment benchmarks.

Conflict with the Demolition Code

Acceptable Outcome AO1.1 of the Demolition Code relevantly provides that a development must ensure that the subject building does not lose integral components which contribute to its streetscape character.

The Applicant submitted that although the proposed development would alter the dwelling, there would be no loss to any integral component to such an extent that there would be a noticeable incongruity to its streetscape character. In particular, the Applicant noted that the proposal would revive the traditional tin roof by expressing a medium pitched hipped roof form and that the left side additions were not necessary in order for the subject building to express itself as a complete and whole building as it originally appeared.

The Court rejected the Applicant's first submission and held that the proposal to alter the shape of the roof changed the streetscape character of the building. The Court found that Acceptable Outcome AO1.1 focused on the retention of the subject house's streetscape character rather than creating a streetscape character that was consistent with traditional building character of the time.

In relation to the removal of the left side verandah of the building, the Court held that the width of the core of the house is material to the house's streetscape character and that the proposed demolition of the house would result in a building that had a disproportionate front pediment.

With respect to Acceptable Outcome AO5(c), the Applicant argued that it was not applicable as the provision was cast in terms of complete demolition rather than partial demolition. The Court disagreed and held that the provision was engaged when reading the Demolition Code as a whole.

The Court also dismissed the Applicant's submissions regarding Performance Outcomes PO1, PO2 and PO5 on the basis that they had not complied with the provisions and could not subsequently be conditioned to comply.

Compliance with the relevant Overall Outcomes of the Demolition Code

In the Court's consideration of Overall Outcome (2)(a) of the Demolition Code, the Court relied on the decision in Klinkert v Brisbane City Council [2018] QPEC 30 for the analysis of "traditional character" and "traditional building character" and found that "traditional character" related to a streetscape or locality while "traditional building character" related to a building. In applying this, the Court found that the partial demolition would not protect the traditional building character of the dwelling as it would result in the loss of integral components of the house which materially contributed to its traditional building character.

With respect to Overall Outcome (2)(b) of the Demolition Code, the Applicant argued that the provision had been complied with as the proposed development would allow the subject building to continue to express a "federation-era character", but conceded that it would not necessarily maintain its current "federation-era character". The Court disagreed and held that the focus of the provision was relevant to the protection of the building itself rather than to ensure that a building of "federation-era character" was constructed on the land in place of an existing structure.

Given its finding in respect of Overall Outcome (2)(b), the Court rejected the Applicant's argument that the development would protect its traditional building character through expressing a new building character that was within the stylistic norm of its type. The Court held that the main focus of the provision was relevant to the protection of the building where it forms an important part of a streetscape that had been established in 1946 or earlier, and that the provision could not be met by simply replacing the integral components with another that was typical of the time.

The Applicant further submitted that the development had complied with Overall Outcome (2)(h) as the proposed partial demolition would retain the subject building and would continue to make a positive contribution to the traditional character of the precinct. The Court accepted the submission and found that although the proposed development would materially diminish the traditional building character of the subject house, it could not equate to a failure to complement the remaining buildings that were constructed in 1946 or earlier within the precinct.

Residual discretion

In determining whether the Court should exercise its residual discretion to approve the development application, it relied on the approach outlined in Klinkert v Brisbane City Council [2018] QPEC 30 (at [102]) where:

"The discretion is expressed in permissive ("may") and broad terms. It is subject to an important constraint namely the constraint expressed in s 59(3) of the Planning Act requiring the decision to be based on the assessment carried out pursuant to an earlier provision of the Act, which in this case includes, inter alia, s 45."

The Applicant relevantly identified three reasons to justify a decision to approve the proposed development despite the development application not complying with some of the assessment benchmarks. Firstly, the Applicant submitted that the proposal complied with the broad policy intent of the Council's City Plan 2014 as it protected the building's traditional character by retaining and enhancing it. Secondly, that the subject building's current "unattractive" appearance did not promote public appreciation of the building's traditional character and finally, that the proposal would return the subject building's "lost traditional character for the benefit of the public".

In regards to the first submission, the Court found that the extent to which the proposed development materially diminished the traditional building character was not proportionate to the benefits of the proposal to such an extent where it was sufficient to justify the losses.

The Court also found that the current "unattractive appearance" did not reduce the public's appreciation of the subject building's traditional character or its traditional building character. Furthermore, the Court held that the Applicant's second submission was unpersuasive given that the purpose of the planning outcomes is to protect and preserve the traditional building character of a house even if the house is not aesthetically pleasing.

In considering the Applicant's last submission, the Court decided that the loss of the roof and left side verandah would not outweigh the benefits of the proposed development. The Court noted that the end product would result in a pediment that would appear out of scale and cause a loss of visual harmony with its present relationship between the houses in the streetscape.

Conclusion

The Court therefore dismissed the appeal in relation to the preliminary approval to facilitate the partial demolition of the dwelling, however allowed the appeal for the material change of use and proposed extensions to the subject house. 

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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