In brief

The case of Beauchamp v Brisbane City Council [2018] QPEC 43 concerned an appeal to the Planning and Environment Court against a decision of the Brisbane City Council (Council) to refuse a development application for the partial demolition of a pre-1947 dwelling.

The pre-1947 dwelling is an inter-war bungalow style house which is situated in an area within the Traditional Building Character Overlay. The dwelling straddles two lots on the subject site located in Kedron. The proposal intended to demolish a sleepout attached to one side of the dwelling to ensure that it is only located on one of the two lots.

The issue in question was whether the Council made an error by refusing the partial demolition of the pre-1947 dwelling. The Court held that the proposed demolition did not comply with the assessment benchmarks identified in the Traditional Building Character (Demolition) Overlay Code (Demolition Code) and Character Residential Zone Code (Character Zone Code) in the Council's City Plan 2014 (City Plan). The Court further held that compliance cannot be achieved by imposing development conditions. On this basis, the Court upheld the Council's decision to refuse the proposed development and dismissed the appeal.

Court considered the correct approach to determine whether the development should be allowed

The Planning Act 2016 (PA) requires code assessable development to be assessed only against assessment benchmarks identified in a categorising instrument. A categorising instrument relevantly includes the City Plan.

The Council's decision to refuse the development application was based on alleged conflicts with certain acceptable outcomes, performance outcomes and overall outcomes in the Demolition Code and the Character Zone Code. The Court identified these alleged conflicts as the issues to be determined in this appeal.

Acceptable Outcome AO1.1 of the Demolition Code

Acceptable Outcome AO1.1 provides that development should ensure the building does not lose integral components which contribute to its streetscape character. The Council argued that a sleepout is analogous to a side verandah, which the City Plan provides as an example of an integral component. This was supported by expert evidence which regarded the two terms as interchangeable. However, the Council acknowledged that the analogy is not determinative.

The Court accepted that the sleepout contributed to the building's streetscape character. However, the issue to be resolved by the Court was whether the demolition of the sleepout would amount to the loss of an integral component of the building. The Court turned to the dictionary definition of the term to define it as a component that is necessary for the completeness of the entire building.

The Appellant argued that the sleepout is not integral as it is not necessary for completeness. Expert evidence from the Appellant supported the view that, although a sleepout in an inter-war bungalow is a well-recognised feature, narrower bungalows without the feature are also commonly available. The Appellant also highlighted that the proposed development would be similar to the style of other dwellings in the same catchment.

The Court acknowledged that some inter-war bungalows did come in narrower versions. However, the Court held that the subject dwelling was built as a wide version which incorporated the sleepout. The Court held that the proposed demolition would result in the loss of this integral component which contributes to its traditional character and confirmed the alleged conflict with Acceptable Outcome AO1.1.

Acceptable Outcome AO1.2 of the Demolition Code

Acceptable Outcome AO1.2 provides that development should not result in a narrow building which has a width-to-height proportion out of character with other pre-1947 buildings in the streetscape. The Council acknowledged that there are two houses originally constructed in 1946 or earlier that have been the subject of partial demolition. However, the Council contended that these should not be considered as they were moved to the locality from other locations. The Court rejected the Council's argument and clarified that Acceptable Outcome AO1.2 requires consideration of dwelling houses constructed in 1946 or earlier that are in the streetscape. Therefore, the dwellings in consideration met that description and their relocation was not relevant.

The Appellant cited the Traditional Building Character Planning Scheme Policy (PSP) which provides guidance on the elements that comprise traditional character including the element of traditional scale. The Appellant contended that the proposed development respects the traditional scale by conforming to the sub-division pattern of the streetscape.

The Court reiterated that the question is whether the proposed demolition would result in a width-to-height proportion which is out of character with the other pre-1947 dwellings in the streetscape. The Court accepted expert evidence that the main character of the street is influenced by 14 larger traditional houses, each developed on two allotments, which are prevalent from where the subject dwelling is situated. Accordingly, the Court held that the proposed development would be out of character and did not comply with Acceptable Outcome AO1.2.

Performance Outcome PO1 of the Demolition Code

Performance Outcome PO1 provides that development involving demolition of traditional elements, detailing and materials constructed pre-1947 should not diminish traditional building form and roof styles. The Court accepted that the proposed development requires demolition of traditional building elements, detailing and pre-1947 materials. However, the issue raised was whether it would diminish traditional building form and roof style.

The Appellant argued that the proposed demolition did not diminish the traditional building form; rather, it altered the traditional building character from one form to another. It was highlighted that the City Plan did not promote one form over another. The Council argued that the demolition would have a considerable impact on the dwelling and would clearly diminish its traditional building form.

The Court rejected the Appellant's argument and held that simply because an altered building form is acceptable, it does not follow that the dwelling's current form would not be diminished by the demolition. The Court accepted the Council's argument and held that the proposed development would diminish the dwelling's traditional building form to a degree which is meaningful and significant.

Performance Outcome PO5 and Acceptable Outcome AO5 of the Demolition Code

Performance Outcome PO5 provides that, where demolition results in the loss of integral components, assessment is required against section B of the Demolition Code. The Code distinguishes between partial demolition and demolition or removal of a building, which is dealt with in section B of the Code. Acceptable Outcome AO5 provides that development involves a building which, if demolished, should not result in the loss of traditional building character.

The Court held that the loss should be meaningful and significant and that traditional building form is an element of traditional building character. For these same reasons, the Court held that the proposed development would diminish the traditional building form and, therefore, the traditional building character to a degree which is meaningful and significant.

Overall Outcomes 2(a) and 2(d) of the Demolition Code

Overall Outcome 2(a) provides that development should protect pre-1947 buildings that contribute to the traditional character and traditional building character of areas in the Traditional building character overlay. Overall Outcome 2(d) provides that development should protect entire, or parts of, pre-1947 buildings where they form an important part of the streetscape.

The Court accepted that Overall Outcome 2(a) does not prevent partial demolition where appropriate. However, the Court held that the proposed development does not adequately protect the building. The Court also found that the sleepout is an integral component of the building that is an important feature of the streetscape and the proposed demolition does not protect that part of the building.

Overall Outcomes 5(c) and 6(a) of the Character Zone Code

Overall Outcome 5(c) provides that development should protect and retain pre-1947 buildings on land within the Traditional building character overlay in accordance with the relevant overlay code. Overall Outcome 6(a) provides that development should retain a pre-1947 dwelling house.

With regard to Overall Outcome 5(c), the Court held that the party which is successful in respect of the Demolition Code will also be successful here. In response to Overall Outcome 6(a), the Court held that there is no conflict with this provision as the proposed development would retain the dwelling.

Conclusion

The Court held that the proposed partial demolition of an inter-war bungalow-style dwelling does not comply with the relevant assessment benchmarks. The Court found that compliance cannot be achieved by imposing development conditions. The Court accepted the Council's refusal of the Appellant's development application and dismissed the appeal.

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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