To preserve Brisbane's traditional building character, the planning scheme contains provisions to protect various residential buildings constructed in 1946 or earlier. The case of Hunter Family Capital Pty Ltd ACN 604 208 175 v Brisbane City Council [2022] QPEC 14 involved an appeal to the decision of Brisbane City Council to refuse an application for the demolition of a house constructed in about 1936. While the house exhibited some examples of traditional building character, it was constructed in a modern style with features indicative of a later era. In setting aside the Council's decision, the Planning and Environment Court provided guidance on the application of the Traditional Building Character Policy when assessing traditional building character.
The facts
The applicant wished to demolish a house on land situated at 11 Dixon St, Hamilton. The land was included in the Traditional Building Character overlay in the planning scheme, City Plan 2014. The house was constructed in about 1936, was intact, and relatively unchanged from its original construction. Critically, the house was not a traditional ‘timber and tin’ Queenslander. Rather, it was constructed in a modern style with features ahead of its time and which more readily aligned with houses constructed in the 1950s.
In April 2021, the applicant made a code assessable development application for a development permit to authorise the demolition of the house. Upon assessing the application against the Traditional Building Character (Demolition) Overlay Code (TBC Overlay Code), the respondent issued a decision notice in June 2021 refusing the application.
The Court's decision
The appeal was heard before McDonnell J of the Planning and Environment Court. A threshold issue in the appeal was whether the house represented traditional building character under the TBC Overlay Code. In reaching a view on that matter, his Honour considered the Traditional Building Character Policy (TBC Policy) to be the starting point for assessment. The TBC Policy provides that traditional building character is a combination of one or more of the following elements:
(a) traditional building form and roof styles;
(b) traditional elements, detailing and materials;
(c) traditional scale; and
(d) traditional setting.
While these elements are predominantly embodied in the form of 'timber and tin' Queenslanders, the TBC Policy makes it clear that other forms which exhibit overseas architectural influences including, but not limited to, art deco, Spanish mission, Californian bungalow and Georgian, may also be recognised as having traditional building character. In accordance with long established principle, his Honour considered that it is a question of fact and degree whether traditional building character is present in any given case.
On the facts, his Honour held there were no overseas architectural influences reflected in the house and, to the extent that the house displayed traditional building character, it was limited. Consistent with this finding, his Honour went on to conclude that the application for demolition of the house complied with the TBC Overlay Code and the respondent’s decision to refuse the application should be set aside.
Comment
The Court's decision raises two key reminders when considering the proper characterisation of houses situated in the Traditional Building Character overlay—
(a) The mere fact that a house was constructed in 1946 or earlier and has remained intact and relatively unchanged from its original construction does not, of itself, give rise to traditional building character.
(b) Traditional building character extends beyond the Queensland vernacular to encompass other styles influenced by overseas architectural concepts. Critically, it is a question of fact and degree whether traditional building character is present in any given case.