Planning and Environment Court of Queensland dismisses an appeal against the decision to refuse a development application for the demolition of a pre-1947 dwelling house

In brief

The case of Law v Brisbane City Council [2021] QPEC 65 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to refuse a development application for a development permit for the demolition of a pre-1947 dwelling house in Holland Park (Proposed Demolition).

The building the subject of the Proposed Demolition (Subject Building) is included in the Traditional Building Character Overlay (Overlay). The issue for the Court to determine was whether the Proposed Demolition complied with, in particular, the following provisions of the Traditional Building Character (Demolition) Overlay Code (Overlay Code) of the Brisbane City Plan 2014 (version 20) (City Plan):

• Performance Outcome 5(c) – Development involves a building which does not contribute to the traditional building character of that part of the street within the Overlay (PO5(c)). 

• Acceptable Outcome 5(c) – Development involves a building which if demolished will not result in the loss of traditional building character (AO5(c)). 

• Acceptable Outcome 5(d) – Development involves a building which is in a section of the street within the Overlay that has no traditional character (AO5(d)). 

The Court found that the Proposed Demolition did not comply with AO5(c) and AO5(d), and therefore PO5(c), and dismissed the appeal.

Court finds that the Proposed Demolition involved a building which contributes to the traditional building character of the part of the street within the Overlay 

The Subject Building is located at the edge of the Overlay boundary and the Overlay does not encompass all of the relevant street. The Applicant argued that the relevant street ought to be separated and, when looked at from that perspective, the Subject Building is in a different section of the street, partly outside the Overlay, to that part of the street containing buildings with a traditional character. The Court found, however, that the Applicant's evidence was erroneously influenced by areas beyond the boundary of the Overlay and that the City Plan focuses on all of the part of the relevant street within the Overlay. 

The Court found that the section of the relevant street that is included in the Overlay has 11 houses which, as a collective group, has traditional character and the Subject Building contributes to that traditional character. 

The Court therefore found that the Proposed Demolition did not comply with PO5(c) and AO5(d). 

Court finds that the Proposed Demolition will result in the loss of traditional building character

The Applicant argued that the Subject Building's contribution to the traditional character of the relevant street was diminished by its location at the edge of the Overlay boundary. The Court did not accept this argument, however, it found that even if this was true, the Subject Building does not have to be as important as more centrally located buildings to be worthy of preservation under the provisions of the Overlay Code. The Court said the following at [22]:

"Those provisions are not to be read in an absolute way, as if they referred to an immaterial, trivial or insignificant contribution or loss, but neither does the contribution or loss necessarily have to be as great as would be the case for every other house in the relevant part of the street."

The Court distinguished the Subject Building from the house which was the subject of the case of Williams v Brisbane City Council [2021] QPEC 26 (Williams House). In that case, the Court found that the Williams House's contribution to traditional building character was so diminished that its loss would not be meaningful or significant as it was set back a great distance on a site which sloped away from the street frontage, screened by long standing vegetation, and obstructed by adjacent houses and garages. The Subject Building, on the other hand, is clearly visible from the street in front of the property and other viewpoints so that it can be readily appreciated for its traditional character and its existence in the context of other houses with traditional character on the street.

Ultimately, the Court found that the Proposed Demolition will result in the loss of traditional building character, contrary to AO5(c), and that the evidence did not establish any matter that would mitigate this loss (at [31]).

Conclusion

The Court was not satisfied that the provisions of the Overlay Code were satisfied or that the development application ought to be approved in the exercise of the Court's discretion. Accordingly, the Court dismissed the appeal.