The case of Sparrow & Anor v Rockhampton Regional Council [2026] QPEC 5 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Rockhampton Regional Council (Council) to refuse a development application for the demolition of a dwelling house situated at 12 Athelstane Street, The Range. 

The subject land forms a battle-axe shaped allotment set back 46 metres from Athelstane Street which sits behind Lot 34 on SP342953 (Lot 34). Although the view of the subject land from the street is unimpeded it was deemed unlikely to remain that way, given that two existing development permits were issued over Lot 34. The first approval permits the construction of a dual occupancy on the lot and the second allows the reconfiguration of the lot into two lots (at [2]).

It was common ground that the dwelling exhibits character values, noting that it was constructed in 1864 and remains largely unaltered with original features. During the proceedings, the Court had regard to the performance outcomes in the Character Overlay Code in the Rockhampton Region Planning Scheme 2015 (version 4.4) and relevant approvals in determining the impacts of demolition (at [3]).

On balance, the Court gave considerable weight to the approved development over Lot 34 which would substantially diminish the character dwelling's future visibility and therefore its contribution to the character of Athelstane Street. The decision of the Council was set aside, and replaced with an approval for demolition subject to conditions (at [102]). 

The Council contended that the refusal rests on the noncompliance with performance outcome PO11(c) of the Character Overlay Code which relevantly provides as follows:

"PO11 The removal, relocation, partial demolition or total demolition of a building only occurs if it can be demonstrated that:
…
(c)    it is a building that does not contribute positively to the character of the street…"

The Court considered evidence from the experts in character, visual amenity and architecture to determine whether the dwelling house contributes positively to the character of Athelstane Street. This required a consideration of the dwelling's attributes, visibility from the street and character of the street (at [38]). 
The experts agreed that the dwelling is a large highset house of timber and metal roof construction, and presents features that are typical of a Queensland character house. It was also determined that the house is highly visible within a 50-metre length along the street, and partially visible for approximately 100 metres (see [47] to [48]).

The character of Athelstane Street is informed by an analysis of neighbouring dwellings, of which five were deemed to be located within the Character Overlay Map and subject to the residential character demolition control area (at [50]). The Court was satisfied that the street exhibits a varied residential character (at [61]).  

Overall, it was held that the dwelling house does provide a positive contribution to the character of Athelstane Street and that demolition of the house would be in conflict with PO11(c) of the Character Overlay Code. However, it was noted that the impact assessment is not limited to an assessment against relevant assessment benchmarks, and regard must be had to other considerations that are relevant on the facts including any development approval for and lawful use of adjacent premises and any other relevant matter (see [65] to [68]).

The Council submitted that there is little certainty the dual occupancy proposed for Lot 34 would be constructed, given that the currency period expires on 6 August 2027. The Appellants provided evidence that multiple steps had been taken to progress the development and the Court was satisfied in this regard (at [78]).

The Appellants submitted that the dual occupancy development, including associated fencing and landscaping, would cause the dwelling to lose its meaningful contribution to the street. The Court was assisted by photomontages and was persuaded that the construction of the dual occupancy, fencing and landscaping fell within the scope of the lawful use. An alternate consideration raised was that even if the dual occupancy did not proceed, the existing approvals would still allow two freehold dwellings to be constructed, with a similar effect (at [95]).

The Court noted that the Council's decision to approve the reconfiguration of the land and the associated dual occupancy created development outcomes that will limit the visibility of the dwelling house from the street. It was held that this is likely to negate any meaningful contribution that the dwelling house currently provides to the character of Athelstane Street (at [96]).

Although it was determined that the noncompliance with performance outcome PO11(c) of the Character Overlay Code weighs heavily against the approval of the demolition, it was balanced against the relevant matters put forward by the Appellants (at [98]). Overall, the Court was persuaded that the balance favours approval (see [98] to [99]).

It was ordered that the Council's decision be set aside and replaced with an approval allowing demolition of the character dwelling subject to conditions.