Demolition of pre-1947 residential building refused

Elton Morais, Senior Associate, Brisbane
Ronald Yuen, Director, Brisbane
Stafford Hopewell, Partner, Brisbane
Hannah Brown, Solicitor
In brief – The Planning and Environment Court has refused a development application for a preliminary approval for building work to facilitate a demolition of a pre-1947 residential building at Albion, as the street in which it was located contained visual and traditional character and the demolition of the building would result in a loss of such character. This decision provides developers and Council with guidance in relation to what to consider when determining whether a street has visual and traditional character, and whether a building has traditional character and contributes positively to the visual character of the street. 

Implications
     
Following a series of cases dealing with the proposed demolition of traditional character buildings, the Court has affirmed the following key principles to be applied to the assessment of character issues:

  • In determining whether a street has traditional character: 
    • it is not necessary for the street to be pristine;
    • the extent of redevelopment in the street;
    • the visual character of the street as a whole and not the character of houses or groups of houses in isolation;
    • the numerical predominance of non-traditional/traditional character buildings on the street;
    • the impact of modern buildings on the street (for example, are the buildings located at the entrance of the street, in which case, the impact may be diminished as those buildings may be said to be part of other streets).   
  • In determining whether a building has traditional building character:
    • is the loss meaningful or significant (for example, will the loss result in a degradation of the character of the street);
    • is the character prevalent from the perspective of one moving along the street;
    • the assessment must be based on the present character and not a consideration of the transition of the area, nor of the underlying zoning or overlay;
  • In determining whether the building contributes to the visual character of the street:
    • does the building add to the visual character of the street as a whole rather than being neutral;
    • the assessment must be undertaken from the perception of an average person walking along and looking about the street.

Decision 

The applicant appealed the decision of the Council to refuse its development application for a preliminary approval for building work to facilitate a demolition of a pre-1947 residential building at Albion.

The building was a high set timber and tin triple gabled bungalow style house typical of Brisbane houses constructed in the 1930s.  The building was situated on land included in the low medium density residential (two or three storey mix) zone and within the traditional building character of the Council’s planning scheme.  The street itself comprised a mixed assortment of buildings consisting of pre-1947 buildings with traditional building character, post-1947 buildings, heritage listed buildings and some modern development.    
  
The Court was required to consider whether the application was in conflict with performance outcome PO5 and the purpose of traditional building character (demolition) overlay code of the Council’s planning scheme, and in particular whether the building:

  • is in a street that has no traditional character;
  • if demolished will result in a loss of traditional building character;
  • contributes positively to the visual character of the street;
  • complies with the purpose of the code.
 
The Court determined that the application was in conflict with PO 5 and the purpose of the code as:

  • the demolition of the house would result in the loss of traditional building character;
  • the building contributed positively to the visual character of the street;
  • the application did not comply with the purpose of the code as it gives the areas in the traditional building character overlay their traditional character and traditional building character, and forms an important part of the streetscape established prior to 1946 alongside 4 other buildings on the street. 

Yes

 


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