Planning and Environment Court of Queensland approves demolition of pre-1947 dwelling, finding that its "traditional building character is weak"

In brief

The case of Hunter Family Capital Pty Ltd ACN 604 208 175 v Brisbane City Council [2022] QPEC 14 concerned an appeal to the Planning and Environment Court of Queensland (Court) by Hunter Family Capital Pty Ltd (Applicant) against the decision of the Brisbane City Council (Council) to refuse a development application to demolish a pre-1947 dwelling located in Dickson Terrace, Hamilton.

The following issues were considered by the Court in deciding the appeal:

1. Whether the proposed development complies with Acceptable Outcome 5 (AO5) of the Traditional Building Character (Demolition) Overlay Code (Building Character Overlay Code) in the Brisbane CityPlan 2014 (version 20).

2. Whether the proposed development complies with Performance Outcome 5 (PO5) of the Building Character Overlay Code.

3. Whether, in the event the development does not comply with AO5 or PO5 of the Building Character Overlay Code, the proposed development should nonetheless be approved in the exercise of the Court's discretion.

In order to determine whether the proposed development complies with AO5 and PO5 of the Building Character Overlay Code, the Court considered the vegetative screening that obscured views of the property, whether the house had traditional building character, and what contribution the house made to the traditional building character of Dickson Terrace. Ultimately, the Court set aside the Council's decision and approved the development application subject to conditions.

Court finds that the development application is to be assessed assuming there is no vegetative screening

The Applicant submitted that the views of the house were largely obscured by vegetation (at [26]), but the Council contended that the vegetation should not be accepted to significantly diminish the visual contribution of the house to the traditional building character of the street (at [27]). The Court accepted the Council's position, and assumed that there was no vegetative screening in front of the house in determining whether the proposed development complies with AO5 and PO5 of the Building Character Overlay Code.

Court finds that the house does not have traditional building character

The Building Character Overlay Code states that traditional building character is found in a combination of one or more of the following elements:

• traditional building form and roof styles;

• traditional elements, detailing and materials;

• traditional scale;

• traditional setting.

The Council's heritage architect expert opined that while the house was not a "timber and tin" house, it still had the character of a "1930's 'modern style' interwar traditional character house" (at [39]). The Council's heritage architect expert gave evidence that the relevant features of the house included "…asymmetrical geometric massing with horizontal emphasis, simple geometric shapes and material, corner windows, horizontal cantilevered window hoods and stairs expressed by vertical windows" (at [39]). These features do not appear in the Building Character Overlay Code or the Planning Regulation 2017 (Qld).

The Applicant's heritage architect expert opined that the specified features of the house did not align with traditional building character, for the reason that many of the house's features would not be expected in a house until the 1950s (at [43]).

The Court found that "[w]hile the house exhibits some examples of traditional building character, they are weak", and thus concluded that if the house did display any traditional building character, it was weak or limited (at [50]).

Court decides that the proposed development complies with both PO5 and AO5 of the Building Character Overlay Code

AO5 of the Building Character Overlay Code states that demolition is permitted where it will not result in the loss of traditional building character (see paragraph (c)) or is in a section of the street within the Building Character Overlay Code that has no traditional character (see paragraph (d)).

The Court found that the Applicant had demonstrated compliance with AO5(c) due to the lack of traditional building character of the house, as well as the lack of cohesion and buildings of similar character and design along Dickson Terrace. The Court also found compliance with AO5(d) due to the dominant nature of the post-1946 houses along Dickson Terrace, which overwhelm the contribution that any pre-1947 dwellings make to the traditional character of the street.

PO5 of the Building Character Overlay Code allows for demolition where a pre-1947 dwelling does not represent traditional building character (see paragraph (a)) or does not contribute to the traditional building character of the part of the street within the Building Character Overlay Code (see paragraph (c)). The Court found that the house demonstrates compliance with PO5, reiterating that "…the house, at best, exhibits limited traditional building character…", and does not make a meaningful contribution to Dickson Terrace (at [78]).

Court finds that even in the event that the house does not meet the criterion in the Building Character Overlay Code, it would still exercise its discretion to approve the proposed development

The Court considered the purpose of the Building Character Overlay, being to protect pre-1947 dwellings. However, due to the limited traditional building character of the house, the Court found that in the event that the house does not meet the criterion in the Building Character Overlay Code, the Court would still exercise its discretion to approve the proposed development (at [85]).

Conclusion

The Court set aside the Council's decision and approved the development application subject to conditions. The appeal was adjourned for the parties to agree upon appropriate conditions.