Planning and Environment Court of Queensland knocks the house down in finding that a pre-1947 dwelling house does not contribute to traditional building character

In brief

The case of Ficca & Ors v Brisbane City Council [2022] QPEC 52 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 (Proposed Development) located at 56-58 MacDonald Street at Norman Park (Land).

The Land is included within the Character Residential Zone (Zone) and the Traditional Building Character Overlay (Overlay) of the Brisbane City Plan 2014 (version 23) (City Plan). As a consequence, any building work on the Land is to be assessed against the Traditional Building Character (Demolition) Overlay Code (Demolition Code) (see [9] and [10]).

The Council refused the Proposed Development on the grounds that the demolition would result in an unacceptable loss of traditional building character from MacDonald Street.

The Court held that the Proposed Development complies with the relevant assessment benchmarks and allowed the appeal. 

Issues considered by the Court 

The Court determined the following issues as agreed by the parties (at [17]):

1. Whether the Proposed Development complies with acceptable outcome AO5 of the Demolition Code, which relevantly states the following:

"Development involves a building which:

a) has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; or

b) an engineering report prepared by a Registered Professional Engineer Queensland which certifies that the building is structurally unsound and not reasonably capable of being made structurally sound; or

c) if demolished will not result in the loss of traditional building character; or

d) is in a section of the street within the Traditional building character overlay that has no traditional character..."

2. Whether the Proposed Development complies with performance outcome PO5 of the Demolition Code, which relevantly states the following:

"Development involves a building which:

a) does not represent traditional building character; or

b) is not capable of structural repair; or

c) does not contribute to the traditional building character of that part of the street within the Traditional building character overlay."

3. Whether the Proposed Development complies with overall outcome OO2(a) of section 8.2.21.2 of the Demolition Code, which relevantly states the following:

"Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character."

4. If the Proposed Development does not comply with acceptable outcome AO5, performance outcome PO5, or overall outcome OO2(a) of the Demolition Code, whether the Court ought to exercise its discretion and approve the Proposed Development.

Court finds that the Proposed Development complies with acceptable outcome AO5 and performance outcome PO5 of the Demolition Code

The Applicants' primary argument was that the Proposed Development complies with acceptable outcome AO5(c) of the Demolition code.

The Court applied the same principle from the case of Taylor & Anor v Brisbane City Council [2020] QPEC 5; (2020) QPELR 1080 at [18] that "[t]he question is whether a demolition will result in a loss of traditional building character that is meaningful, or significant, rather than any loss at all" (at [33]). The Court held that the Proposed Development complies with acceptable outcome AO5(c), and acceptable outcome AO5 more generally, for the following four reasons:

1. The dwelling house does not display any of the typical characteristics of "traditional character" or "traditional building character" prescribed in the Traditional Building Planning Scheme Policy (see [36] to [37]). The Court relied on the evidence of the Applicants' heritage architecture expert that the dwelling house "…has a form similar to that of Austerity-era construction (circa 1950s), which is similar to that of the post-1946 houses at 52 and 67 MacDonald Street" (at [37]).

2. The dwelling house is not recognisable as "Georgian style" as opined by the Council's heritage architecture expert, as the Court held that the dwelling house "…does not exhibit many of the typical Georgian style features and is not easily recognisable as Georgian style architecture" (at [23]).

3. There is a limited visual catchment of the dwelling house for the reasons that it is well set back from the boundary, it is either partially or entirely obscured by vegetation, and the built form surrounding the Land is more dominating (see [40] to [41]). The Court noted from the case of Williams v Brisbane City Council [2021] QPEC 26; (2022) QPELR 580 at [38] "…that care must be taken in considering the contribution of a house to traditional character where vegetative screening obscures views because it could result in owners undermining the provisions of the Demolition Code 'by taking steps to screen their buildings so as to get permission to demolish them'" (at [42]). However, the Court held that this was not a concern in the present case since the vegetation is well established and that there is no evidence that the Applicants had taken steps to screen the dwelling house (at [42]).

4. There is "…limited, if any, visual connection…" between the dwelling house and the other 31 pre-1947 houses on MacDonald Street within the Overlay (at [43]). The Court's reason was that the Land is surrounded by post-1946 dwellings which has the consequence that "...any view of the house from Katherine Street does not reinforce the traditional building character of MacDonald Street" (at [43]).

5. For the same reasons, the Court held that the Proposed Development also complies with performance outcome PO5(c) (at [45]).

Court finds that the Proposed Development complies with overall outcome OO2(a) of the Demolition Code for the reason it complies with acceptable outcome AO5 and performance outcome PO5

The Council argued that the compliance with overall outcome OO2(a) of the Demolition Code "…is not wholly answered by PO5 and AO5" because the relevant area to be considered in the context of the overall outcome is broader than a "street" or "part of the street" (see [46] and [47]).

The Court rejected the Council's argument and held that "…there was no evidence that the word 'areas' was to be read to extend beyond that of the street, or streetscape under consideration…" (at [48]). The Court relied on the evidence of both parties' heritage architecture experts that the "…'relevant extent of the street, streetscape, area and precinct under consideration' [is] the same location" (at [48]).

The Court therefore held that the compliance with acceptable outcome AO5 and performance outcome PO5 is consistent with compliance with overall outcome OO2(a) (at [49]).

Conclusion

The Court held that because the Proposed Development complies with all relevant assessment benchmarks that it was unnecessary to address issue four (at [51]), and allowed the appeal.