In brief

The case of Graya Developments Pty Ltd v Brisbane City Council [2021] QPEC 49 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to refuse an application for a development permit for building works, which relevantly included the demolition of a pre-1947 dwelling house (Development Application).

The Court relevantly held that the pre-1947 dwelling house was within a section of Moray Street, Newfarm that had traditional character as described in the Traditional Building Character (Demolition) Overlay Code (Demolition Overlay Code) of the Brisbane City Plan (Version 20) (City Plan). The issue for the Court was therefore whether, objectively, the changes made to the dwelling house since its construction were substantial or resulted in it no longer having the appearance of being constructed in 1946 or earlier.

The Court held that the dwelling house had been substantially altered, which resulted in the loss of its ability to make any contribution to the traditional building character of the relevant part of Moray Street. Any change that could be made to restore the dwelling house to its pre-1947 state was not relevant to the Court's determination.

The Court therefore allowed the appeal.

Factual matrix

The Subject Land is located on Moray Street, Newfarm. The Court accepted expert evidence that the original dwelling house was likely constructed on the Subject Land circa 1912 to 1913, and had features, including a short-ridge bungalow roof and U-shaped veranda, that were generally seen on buildings constructed circa 1900 to 1920s. In around 1925, the eastern part of the veranda was enclosed.

In the late 1940s to 1950s further alterations, including the replacement of the front original timber stairs with a steel framed and balustraded entry staircase and the enclosure of the veranda on the front and sides, were made to the dwelling house which converted it into four individual flats each with individual pedestrian access (1950s Changes).

City Plan matrix and parties' positions

According to the City Plan, the Subject Land is within the Low-Medium Density Residential Zone and the New Farm and Teneriffe Hill Neighbourhood Plan Area. 

The Development Application was code assessable under the City Plan.

The following provisions of the Demolition Overlay Code were relevant to the Development Application:

  • Overall Outcome 2(a) – Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Demolition Overlay Code their traditional character and traditional building character.

  • Overall Outcome 2(d) – Development protects a residential building or part of a residential building constructed in 1946 or earlier where it forms part of a character streetscape comprising nearby residential dwellings constructed in 1946 or earlier.

  • Overall Outcome 2(h) – Development ensures residential buildings constructed in 1946 or earlier are retained and redevelopment complements the traditional character of buildings constructed in 1946 or earlier.

  • Performance outcome PO5(c) – Development involves a building which does not contribute to the traditional building character of the relevant part of the street.

  • Acceptable outcomes AO5(a), AO5(c), and AO5(d) – Development involves a building which has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; or if demolished, will not result in the loss of traditional building character; or is in a section of the street that has no traditional character.

The Applicant's position was that the Development Application complied with Acceptable Outcome AO5(a) because the dwelling house had been substantially altered.

The Council's position was that the dwelling house had not been substantially altered so as to comply with Acceptable Outcome AO5(a) of the Demolition Overlay Code.

Court finds Development Application complies with Acceptable Outcome AO5(a)

The Court rejected architectural evidence that despite the changes made to the dwelling house it was recognisable as being of timber and tin traditional character by virtue of it retaining its traditional tin roof.

The Court held that the relevant test was what a reasonable person objectively looking in would think and not "…what an expert in the field might make of things…" (see [17] to [21]). Whether the dwelling house could be restored was not relevant to that assessment (at [28]).

The Court held that although the dwelling house would have presented to the street as a traditional timber dwelling with a tin roof after the enclosure of the eastern part of the veranda in circa 1925, the 1950s Changes substantially altered the dwelling house and changed the way it presented to the street (see [11], [14], and [21]).

The Court held that the full enclosure of the veranda and the use of asbestos sheeting and discordant windows, which resulted in the loss of the original three-dimensional effect of the original dwelling house, presented a flat, featureless surface to the street (at [23]).

Conclusion

The Court held that the dwelling house did not present to the street as an "iconic Queenslander" and did not make any contribution to the traditional building character of the relevant part of the street. Accordingly, 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 2022.

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