Planning and Environment Court of Queensland exercises its discretion to dismiss an appeal about the demolition of a pre-1911 detached dwelling house

In brief

The case of Harrison v Brisbane City Council [2023] QPEC 12 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Brisbane City Council (Council) to refuse a code assessable development application for a preliminary approval for building work for the demolition of an existing detached dwelling house constructed between 1903 to 1904 (Proposed Development) located at 1-5 Mole Street, Teneriffe (Land).

The Land is relevantly included within the Character Residential (Infill Housing) Zone and the Traditional Character Overlay of the Brisbane City Plan 2014 (version 24) (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) (at [4]).

The Applicant conceded that the Proposed Development did not and could not be conditioned to comply with all of the relevant assessment benchmarks, and instead sought a favourable exercise of the Court's discretion to approve the Proposed Development (at [6]).

The Court held that there were no matters significant enough so as to exercise its discretion in favour of an approval in the face of a sensible application of the relevant assessment benchmarks and dismissed the appeal (see [44] to [45]).

Court finds that a consideration of traditional building character is not significant in the face of other non-compliances

The Applicant argued that the Proposed Development complies with Performance Outcome PO5(c) and corresponding Acceptable Outcomes AO5(a) and AO5(c) of the Demolition Code in that the dwelling house does not contribute to traditional building character and concerns a building which has been substantially altered and that if demolished "…will not result in the loss of traditional building character" (at [19]).

The Applicant also argued for the same reasons that the Proposed Development would not offend Overall Outcomes OO(a) and OO(d) of the Demolition Code, which relate to the protection of a building constructed in 1946 or earlier, or part thereof, if the building contributes to traditional character and traditional building character or forms part of a character streetscape comprising dwellings constructed in 1946 or earlier.

Whilst the Applicant's heritage expert gave evidence that the Land is "…effectively surrounded by post 1946 development" (at [14]) and may be viewed as being within a section of the street that has no traditional character (at [18]), the Court preferred the evidence of the Council's heritage expert that there is a "diverse range of sightlines" that form the streetscape which is not outweighed by contemporary houses and altered pre-1947 dwellings (at [16]).

The Court held in the context of Overall Outcome OO(d) that "[t]here is … sufficient traditional character within the relevant section of the street such that it has traditional character and traditional building character" (at [18]).

However, the Court held that it was unnecessary to make findings in respect of compliance with Performance Outcome PO5(c) and Acceptable Outcomes AO5(a) and AO5(c) of the Demolition Code, because the Proposed Development does not comply with other assessment benchmarks in the Demolition Code relating to structural soundness. The Court observed that it would not exercise its discretion to grant an approval even if it assumed that compliance with those assessment benchmarks could be resolved in the Applicant's favour (at [32]).

Court finds that the protection afforded to the dwelling house ought to remain

The following assessment benchmarks in the Demolition Code were also relevant to the assessment of the Proposed Development:

• Overall Outcome OO(b), which states that "Development protects buildings constructed prior to 1911 by limiting demolition or removal to only where a building is structurally unsound."

• Performance Outcome PO6, which states that "Development involves a building which is not capable of structural repair."

The Applicant conceded that the Proposed Development does not comply with these provisions as there was no suggestion of structural unsoundness, and argued that "…the noncompliance is not serious because the pre-1911 building fabric that remains is limited and largely unable to be seen from the street, such that the public gains no appreciation of Brisbane's history from it and there would be no planning harm done in allowing those elements to be lost through demolition." (at [35]).

The Applicant described the pre-1911 flooring, external walls, roof framing, and brick chimney fireplace elements that remain of the dwelling house as "…disparate and discrete items that float within a contemporary structure and ought not be protected." (at [35]).

The Court rejected the Applicant's characterisation of the pre-1911 elements of the dwelling house and held that the pre-1911 elements are not so "trivial, insubstantial, or insignificant" (at [44]) and that the Court's discretion ought not be exercised to retract the protection offered by the Demolition Code for the following reasons (see [36] to [38]):

• The protection in Overall Outcome OO(b) is not conditional upon a finding of character, but rather relates to structural unsoundness. This protection is not diminished where a proposal does not offend other Overall Outcomes.

• Performance Outcome PO6 and its Acceptable Outcomes apply even where Performance Outcome PO5 and its Acceptable Outcomes are satisfied, and thus a proposal does not comply with the Demolition Code where it involves the demolition of a structurally sound pre-1911 building. This finding was also supported by the Court in the case of Birleymax Pty Ltd v Brisbane City Council [2017] QPEC 44.

• There is no assessment benchmark requiring a consideration of traditional building character in respect of a full demolition, which "…affords a high level of protection…".

Conclusion

The Court refused to exercise its discretion to approve the Proposed Development and dismissed the appeal.