Renovating or removing a traditional character house constructed in or prior to 1946 in Brisbane is not always easy.  This article considers some of the disputes which arise when trying to obtain a development approval to carry out demolition works on such houses.

Under Brisbane City Council’s City Plan 2014, a development permit is required to demolish (including partial demolition) or remove a building from a site that is located in the ‘Traditional building character overlay’ and where the building was constructed before 1946.  This is the most common situation, although there are other occasions where development permits are required under the City Plan.

WHEN DO DISPUTES ARISE?

Like with many parts of City Plan 2014, there are a number of ‘grey areas’ in the rules which restrict the demolition or relocation of pre-1946 buildings.  Those ‘grey areas’ often make the assessment of proposals more subjective and can create room for significant dispute.  Where there is a dispute, an applicant may appeal to the Planning and Environment Court to decide the application.

Disputes about pre-1946 houses under City Plan 2014 frequently involve a consideration of the following questions:

  • Will the demolition of the subject house result in the loss of traditional building character?
  • Is the subject house in a street that has traditional character and, if so, what is the relevant section of the street that needs to be assessed?
  • Does the subject house contribute positively to the visual character of the street?
  • To what extent has the subject house been altered in a manner which has adversely affected its traditional character?

ASSESSING A LOSS OF TRADITIONAL BUILDING CHARACTER

In considering whether demolition of a house will result in a ‘loss’ of traditional building character under City Plan 2014 (and its predecessor, City Plan 2000), the Courts have established the following principals, amongst others:

  • generally, the loss must be categorised as ‘significant, concerning or unacceptable’;
  • the loss is not limited to one that would ‘amount to the straw that would break the camel’s back’;
  • that proposed alterations to a building may be reversible is not a relevant consideration when assessing the loss;
  • the loss to a street should not be measured against post-1946 houses even if they are sympathetic to traditional building character; and
  • the planning scheme does not require a pre-1946 house to have architectural merit or that it be unique or even good.

WHAT SHOULD YOU DO BEFORE APPLYING TO COUNCIL?

Whether proposed works will comply with the relevant provisions of the City Plan 2014 is ordinarily a question for an architect with suitable qualifications and expertise in Queensland heritage architecture.

If your development proposal is supported by a heritage architect but Council refuses your application, you will have appeal rights where you can challenge Council’s decision.

McInnes Wilson has acted for a number of land owners proposing the partial or complete demolition of a house but their development applications have been refused by Brisbane City Council.  Since City Plan 2014 was adopted, McInnes Wilson has successfully conducted appeals against Council’s refusal of such proposals and has resolved 100% of appeals by early negotiations resulting in a development approval being issued by the Court.  

Prior to applying for a development approval to demolish or relocate a traditional character house which is protected by City Plan 2014 you should:

  1. in consultation with your architect, builder or draftsperson, evaluate the extent to which your proposal necessitates alterations or demolition of the traditional elements of the building;
  2. obtain advice from a heritage architect to evaluate the property and the street and to assess the loss of traditional building character as a consequence of the development;
  3. if Council refuses an application which has the support of a heritage architect, consider whether to exercise appeal rights to pursue an approval from the Court;
  4. seek legal advice about your prospects and the likely costs of appealing the Council’s decision.