by Tim Quirk, Partner and Evan Leong, Lawyer

Traditional character houses, fondly known as Queenslanders, are considered by many to be an iconic part of Queensland’s suburban history and pre-war character.  Older housing stock is however, a casualty of the drive for higher density development, and this slow yet incremental loss of Queensland’s character can be a significant emotive issue.

The current framework for the protection of Queensland’s heritage is shared between the Local and State Government (Department of Environment and Heritage Protection).  Although the State Government is ultimately responsible for enacting and enforcing legislative heritage protections, the Local Governments are the front line of protection for pre-1946 traditional character houses by operation of their planning schemes. In Brisbane, such protective measures are found in the Traditional Building Character Overlay Map and the Traditional Building Character Overlay (Demolition) Code (the Demolition Code) in Council’s City Plan 2014.

The interplay of responsibilities between State and Local Governments was recently highlighted by the proposed demolition of three pre-1946 houses at Jones Street, Highgate Hill.  The houses were not included in Council’s Traditional Building Character Overlay Map. A developer obtained a demolition approval granted by a building certifier under the State Government’s Building Act 1975, permitting the demolition of the houses. As a result of significant public outcry, the State Government issued a stop work order to stay the demolition and applied to the Queensland Heritage Council to have the three character houses listed on the Heritage Register in accordance with the Queensland Heritage Act 1992. Despite the mounting political and community pressure, the Queensland Heritage Council ultimately decided to refuse the listing of the character houses as the houses did not satisfy the cultural heritage criteria. There now appears to be no lawful impediment to the demolition of the houses.

The role of building certifiers in the approval process has also been a topic of recent concern. In the complex web of legislation surrounding demolition approvals, the power of a building certifier to grant a demolition approval for a character house is not easily determined. This issue has been thrashed out in various Courts between Brisbane City Council and a local building certifier.

The recent decision of Gerhardt v Brisbane City Council [2016] QPEC 48, given on 5 October 2016 has provided much needed clarity on the role of both a building certifier and the Local Government in lawfully granting a demolition approval for a character house.

Facts of the Case:

Mr Gerhardt, a private certifier (Class A) for the purposes of the Building Act 1975, assessed a building development application made to him by the owners of two character houses seeking a development permit for “building work”, being the demolition of those houses. The primary question in dispute was whether the Council was a concurrence agency for assessment against the Demolition Code (as Mr Gerhardt submitted), or whether a separate development application was required to be made to Council in respect of that part (as Council submitted).

Decision:

The Judgment is comprehensive and should be read in full for a detailed understanding of this matter. In summary, the Court concluded that:

  • A building certifier (or a concurrence agency for a building development application) does not have the power to assess the building development application against the Demolition Code.
  • A separate development application is required to be made to Council in respect of assessment against the Demolition Code, rather than as Council being a concurrence agency.
  • If Council has not carried out its assessment against the Demolition Code, the building certifier can only issue a development approval in the form of a preliminary approval. A separate development application for a development permit with Council would be required for assessment against the Demolition Code.
  • If Council has carried out its assessment against the demolition code and issued a preliminary approval, then the building certifier can issue a development permit, however the development permit would be is subject to Council’s preliminary approval.

The protection afforded to character houses, clarified by this decision, is that, while a building certifier can grant one part of a development approval required for the demolition of a character house, a separate development approval is required from the Local Government in relation to assessment against the Demolition Code before a person can lawfully demolish a character house.

Note:

  • This decision has been appealed to the Court of Appeal.
  • It is important for the character house to be identified in Council’s Traditional Building Character Overlay Map. If the subject land not identified in the overlay, a person will not be required to submit a separate development application with Council for assessment against the Demolition Code and a building certifier can issue a development permit for its demolition.

This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

Send To A Friend