In brief

The case of Williams v Brisbane City Council [2021] QPEC 26 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the refusal by the Brisbane City Council of the Appellant's development application for a preliminary approval for building work to facilitate the demolition of a house (Building), which was built sometime between 1927 and 1930 (Proposed Development) on land located at 13 Borva Street, Dutton Park.

The Court considered and determined whether the Appellant had demonstrated compliance with Acceptable Outcome (AO) 5(c) of the Traditional Building (Demolition) Overlay Code of the Brisbane City Plan 2014 (Planning Scheme), which relevantly states that "development involves a building which, if demolished, will not result in the loss of traditional building character".

Court finds that the proposed demolition of the Building would not result in a loss of traditional building character in any meaningful or significant way

In determining whether the Proposed Development complied with AO5(c) of the Traditional Building (Demolition) Overlay Code of the Planning Scheme, the Court noted that the Building possessed a traditional building character and that it was necessary "…to examine the relevant part of the street and its characteristics and, in particular, the things which contribute to its traditional building character as well as to assess the subject house and its contribution and the loss, if any, which its demolition would cause" (at [7]).

The Building is on Borva Street, which runs roughly parallel with the river and is a split-level road with the higher section of Borva Street being further from the river and the lower section of Borva Street being more proximate to the river. Given the separation between the higher section and the lower section of Borva Street, the Court noted that it was relevant to have regard to the five pre-1947 buildings which were situated in the lower section of Borva street where the Building was situated, and the traditional building character of that section of Borva Street to which those pre-1947 buildings contributed.

The Court accepted the experts' evidence that the Building expressed its traditional building character to the river rather than to the street like the other buildings in the street. The Court acknowledged that the side of the Building that faces the street retains some traditional building character elements but does not contribute to the character of the street in any meaningful sense.

The Court further noted that the Building is positioned on top of the sloping street with a greater setback from the street frontage. As a result of the greater setback, any connection that the Building would otherwise have had with the street is reduced, and the Building is only visible from a relevantly short section of Borva Street.

The Court concluded that "any loss of traditional building character resulting from the demolition of the [Building] would not be one which is meaningful or significant", and therefore the Court found that the Proposed Development complied with AO5(c) of the Traditional Building Character (Demolition) Overlay Code of the Planning Scheme.

Conclusion

The Court allowed 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 2021.

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