The case of Hawke v Brisbane City Council  QPEC 16 concerned an appeal to the Planning and Environment Court against the Council's decision to refuse a development approval for the demolition of a pre-1947 house in the suburb of Brighton in Brisbane.
The subject house is located at 478 Flinders Parade, Brighton. The section of the street by which the subject house was assessed (Street) comprises 13 dwellings, each of which are contained within the Traditional Building Character Overlay.
Of the 13 dwellings contained in the Street, four dwellings were identified as pre-1947 houses, the age of one house was uncertain, and the remaining eight houses were post-1946 houses. Of the eight post-1946 houses, six were "very large and of modern construction" (at ). Of note, two pre-1947 houses had been demolished in the Street between 2006 to 2010.
The central issue concerned whether the Street was of traditional character. If this was satisfied, a second issue arose as to whether the subject house contributed to the character of the Street.
The Court found that the Street "no longer has sufficient character 'to be reasonably described as having traditional character'" (at ). The Court was not required to consider the second issue. The outcome of the appeal was therefore that the house can be demolished.
The appeal was carried out by way of a hearing anew. The Court had a broad planning discretion to decide the appeal. The now superseded Brisbane City Plan 2015 version 19-00/2019 was in force at the time of the development application.
The proposed development was contained within the Character Residential Zone, and the Character Residential Zone Code relevantly provided as follows (see section 126.96.36.199(4)):
"Development location and uses overall outcomes are:
(a) Development provides for low density suburban and inner-city living through the development of predominately one or two-storey dwelling houses comprising primarily of existing houses built in 1946 or before and infill housing that incorporates any housing built in 1946 or before…"
The proposed development was assessable against the Traditional Building Character (Demolition) Overlay Code (Demolition Code). Of particular relevance was AO5(d) of the Demolition Code, which allows for demolition where "[d]evelopment involves a building which … is in a section of the street within the Traditional building character overlay that has no traditional character."
The house was also situated within the Sandgate District Neighbourhood Plan Area (Neighbourhood Plan). It was agreed by the parties that the Neighbourhood Plan would be achieved through application of the Traditional Building Character Overlay Code.
Street did not have sufficient character to be reasonably described as having traditional character
The Court had regard to the following in assessing the character of the Street:
"The term 'character' is defined as - 'the aggregate of features and traits that form the individual nature of some person or thing"' and "the task is to consider the visual character of the street as a whole, not the character of houses or groups of houses in isolation" (Leach & Ors v Brisbane City Council  QPELR 609, -).
"What gives an area (or street) 'traditional character' is a combination of traditional building form and roof styles, traditional elements, detailing and materials, traditional scale and traditional setting" (Mariott v Brisbane City Council  QPELR 910, at ).
The traditional character of a street does not have to be "pristine" (Unterweger v Brisbane City Council  QPELR 335, at ).
The character of a street must not be decided purely from a comparison between the number of pre-1947 houses and post-1946 houses (at ).
The Court found that the Street comprised a mixed character. The four pre-1947 houses in the Street were physically isolated from each other and lacked a cohesive presentation. As a result, the presentation of the Street was dominated by large modern houses. Any contribution which the pre-1947 houses made towards the character of the Street was individual.
The Court described the four pre-1947 houses on the Street as "quite modest" relative to other nearby examples (at ). They contained most of their traditional features. However, three of the four pre-1947 houses displayed "a number of unsympathetic physical alterations" (at ), and the more dominant structures limited "the ability to observe" the pre-1947 houses (at ).
The Court found that the setting of the Street had been "dramatically and invariably changed" (at ). This informed the Court's finding that the Street had "been robbed of its traditional character by redevelopment" (at ). The Court concluded that AO5(d) of the Demolition Code was therefore satisfied.
The Court allowed the appeal and found that demolition of the house was consistent with the Demolition Code.
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 2021.