Court dismisses appeal against decision to refuse development application for the demolition of a pre-1946 dwelling

29 September 2017
Stafford Hopewell, Partner, Brisbane

In brief – The Planning and Environment Court has dismissed an appeal against Brisbane City Council’s decision to refuse a development application for the demolition of a pre-1946 dwelling in Spring Hill. This is one of many decisions this year which act as a reminder to developers that Brisbane City Council has taken a firm view on the protection and maintenance of traditional character dwellings within its local government area.

Implications

  • The demolition of a federation era or earlier building may only occur in circumstances where it can be demonstrated that the building is structurally unsound.
  • In assessing whether a development application is in conflict with a planning instrument, one should carry out the following exercise:
    • examine the nature and extent of the conflict;
    • determine whether there are any grounds which are relevant to the part of the application which is in conflict with the planning instrument and if the conflict can be justified on those grounds;
    • determine whether the grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
  • Prior to a matter being put forward as a ground, it must be demonstrated that the matter is in the public interest.

Decision

Birleymax Pty Ltd (Birleymax) made a development application to the Council for the demolition of a pre-1946 dwelling at 87 Birley Street, Spring Hill. The Council refused the development application and Birleymax filed an appeal in the Court against the Council’s decision.

Over the course of the appeal, the Council’s reasons for refusal narrowed considerably and it was submitted by the Council prior to the hearing that the development application was in conflict with the Traditional building character (demolition) overlay code of the Council’s planning scheme as the demolition of the dwelling would not protect a federation era or earlier building and such demolition may only occur if it was demonstrated that the building was not capable of structural repair.

Birleymax did not assert that the building was not structurally sound. Rather, Birleymax contended that the building was not of a federation era or earlier building and to the extent the development application was in conflict with the Council’s planning scheme, there were sufficient grounds to overcome the conflict being that the dwelling did not contribute positively to the visual character of the street and did not represent traditional building character.

The Court however, after hearing the evidence put forward by the parties, formed a view that the:

  • dwelling was a federation era building and consequently the development application was in conflict with the Traditional building character (demolition) overlay code; and
  • the grounds put forward by Birleymax were not within the meaning of the term ‘grounds’ as Birleymax was not able to demonstrate that the demolition of the dwelling would be in the public interest.
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.

Get in touch