Character housing is important to the community

Elton Morais, Senior Associate, Brisbane
Stafford Hopewell, Partner, Brisbane
Hannah Brown, Solicitor

Althaus & Anor v Brisbane City Council – What’s the case about?

The Planning and Environment Court delivered a decision in the case of Althaus & Anor v Brisbane City Council [2017] QPEC 41 which involved an appeal by Nathan and Laura Althaus against the Brisbane City Council’s decision to refuse their development application seeking a preliminary approval for building work to facilitate the demolition of a building which was located at the corner of Kingsley Terrace and Wolsey Parade, Wynnum. 

The building was a pre-1947 residential building which expressed “timber & tin” traditional building character.  It was originally constructed as a single residence but subsequently converted into a series of flats.

The building was a “high-set, timber framed house clad with a mixture of weatherboards and vertical boarding with semi-circular cover strips.  It is supported on stumps or pairs of timber posts clad with weatherboards and has a corrugated metal roof in an intersecting gable form capped with a primary longitudinal ridge.  It also has a distinctive lookout tower.”

The key issues in dispute the Court had to determine were whether the proposed demolition was in conflict with the following provisions of the Brisbane City Plan 2014:

  • the Traditional building character (demolition) overlay code;
  • the purpose of the Wynnum-Manly neighbourhood plan code.


The Court found that the proposed demolition was in conflict with the demolition overlay code given the following:

  • The building was reasonably capable of being made structurally sound.
  • Kingsley Terrace and Wolsey Parade exhibited a mixed character comprising both traditional and modern character buildings.  The building did impart considerable traditional character to both Kingsley Terrace and Wolsey Parade.
  • The proposed demolition would cause a loss of traditional building character.
  • The building contributed positively to the visual character of Kingsley Terrace and Wolsey Parade, given its traditional character and location and that it was appreciated by the local residents as a “local landmark”.
  • Having regard to the adverse impact caused by the proposed demolition and the positive contribution the building made to the visual character of Kingsley Terrace and Wolsey Parade, the proposed development was not in compliance with the overall outcomes of the overlay code.

For the reasons given in respect of the conflict with the demolition overlay code, the Court was satisfied that the proposed demolition did not comply with the identified overall outcomes in the neighbourhood plan code.

The Court therefore dismissed the appeal.

Snapshot of Court’s consideration and findings 

Was the building reasonably capable of being made structurally sound? (AO5(b) and PO5(b) of the demolition overlay code)

The Court remarked the relevant principles derived from other decisions relating to demolition of heritage and traditional character buildings (which were summarised in para [31]).

Having regard to those principles, the Court relevantly observed that:

  • the focus was on the building itself, rather than the purpose to which it was put;
  • the reference to structure was a reference to the elements of a building which made up its structural framing and fabric, rather than the building as a whole;
  • the relevant matters for consideration were engineering matters in light of the specific reference to an engineering report in the overlay code.

The engineering experts both agreed that the building was capable of being made structurally sound.  The carrying out of the necessary work was physically possible and the work was readily achievable with normal building practice.

The primary disagreement between the two experts related to whether it was reasonable to carry out the repairs necessary to make the building structurally sound having regard to the likely cost involved.

The Court relevantly noted that “what is reasonable in each case turns on the facts and circumstances of the case”.  The likely cost involved for the work was in the order of $200,000 which represented about 15% of the “as is” value of the property.

Given the cost and feasibility of the work, the Court was not persuaded that the building was not reasonably capable of being made structurally sound.

Did Kingsley Terrace and Wolsey Parade have any traditional character? (AO5(d)) of the demolition overlay code)

It was relevant to consider the visual character of the street as a whole, rather than the character of houses or groups of houses in isolation.

The Court accepted that the streetscape exhibited a mix of building character which included some pre-1947 houses and modern character buildings.  

However, it was of the view that the traditional character of the street was evident.  The subject building imparted considerable traditional character to both Wolsey Parade and Kingsley Terrace through its elevated and spacious setting. 

Would the proposed demolition cause a loss of traditional building character? (AO5(c) of the demolition overlay code)

The relevant loss should be approached on the basis that it was one which was “meaningful or significant”.  In this regard, one must consider the overall outcomes and the intent of the Strategic Framework, which relevantly “reinforce that character housing is important to the community and should be preserved.”

It was observed by the Court that the local residents regarded the building as a “”local landmark” and an “architecturally and historically significant residence in the district” located on a “popular local thoroughfare”.”

The Council’s heritage architect was also of the view that the building formed a very important component of the traditional character of both Wolsey Parade and Kingsley Terrace.  In the circumstances, the Court found that the proposed demolition would cause a loss of traditional building character.

Did the building contribute positively to the visual character of Kingsley Terrace and Wolsey Parade? (PO5(c) of the demolition overlay code)

In assessing the importance of a house to the visual character of the street, the Court relevantly noted that it “should be approached from the perception of an average person walking along the street and looing about.”

The Court was sufficiently satisfied that the building contributed positively to the visual character of Kingsley Terrace and Wolsey Parade as:

  • the Court concluded that “there is virtually no point at which the hypothetical person walking along either of the streets would not have a building that exhibits traditional building character within view”; 
  • the building exhibited fine traditional character and was located in a prominent position; and
  • the building was regarded as a “local landmark” by the local residents.


Yes

 


This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.