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PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Irvine v Brisbane City Council  QPEC 50
NICOLA AUSTIN IRVINE
BRISBANE CITY COUNCIL
Planning and Environment Court
Planning and Environment Court of Queensland, Brisbane
22 October 2019
14 October 2019
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of development application for demolition of a dwelling house constructed in 1946 or earlier
ASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – exercise of discretion pursuant to s 60(2) of the Planning Act 2016 (Qld)
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
Klinkert v Brisbane City Council  QPELR 941
Unterweger v Brisbane City Council  QPELR 335
M.J Batty for the appellant
N.D Loos for the respondent
Connor O’Meara for the appellant
Brisbane City Legal Practice for the respondent
- This is an appeal against the decision of the respondent to refuse a development application seeking the demolition of a dwelling house constructed in 1946 or earlier (“the house”) at 71 Leura Avenue, Hawthorne (“the land”).
The house and the surrounding area
- The land is situated at the corner of Leura Avenue and Leura Terrace, Hawthorne. It has a total site area of 440m2. The house is a timber dwelling, elevated on stumps and sheeted with timber weatherboards. It has a hipped roof of corrugated iron. It was constructed in either late 1939 or early 1940. The front of the house addresses Leura Avenue and it is built close to the side boundaries, one of which aligns with Leura Terrance. It is in a state of disrepair but it is not contended that it is structurally unsound. Unflattering extensions have been undertaken at the front and rear of the house and the front porch has been enclosed with glass louvres. There are numerous houses built in 1946 or earlier nearby, exhibiting traditional building character as that term is defined in the respondent’s planning scheme (“the planning scheme”).
- The land is included in the Low Density Residential Zone (“LDR Zone”) and within the Bulimba District Neighbourhood Plan area of the planning scheme. Significantly, it is subject to the Traditional Building Character Overlay (“the overlay”), within the Local Character Significance sub-category pursuant to the planning scheme. The land is on the northern side of Leura Avenue and the eastern side of Leura Terrace. All of Leura Avenue and the eastern side of Leura Terrance to the south of the land is subject to the overlay. The western half of the northern side of Leura Avenue and the eastern side of Leura Terrace are in the LDR Zone and the balance of these streets are in the Character Residential Zone (“CR Zone”).
The assessment regime
- As the development application giving rise to the appeal was code assessable, s 45 of the PA states that the assessment must only be carried out against, relevantly, the assessment benchmarks which, in the circumstances before me, are found in the planning scheme. Unlike impact assessment, the court cannot have regard to relevant matters as defined in s 45(5) of the PA. Pursuant to s 59(3) of the PA, the decision of the court must be based on an assessment against the assessment benchmarks, subject to s 60, which relevantly provides:
“(2) To the extent the application involves development that requires code assessment… the assessment manager, after carrying out the assessment –
- must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
- may decide to approve the application even if the development does not comply with some of the assessment benchmarks; …”
- As Williamson QC DCJ observed in Klinkert v Brisbane City Council:
“The discretion is expressed in permissive (‘may’) and broad terms. It is subject to an important constraint, namely the constraint expressed in s 59(3) of the PA requiring the decision to be based on an assessment carried out pursuant to earlier provisions of the Act, which in this case, includes, inter alia, s 45.”
The relevant assessment benchmarks
- There is a clear strategy in the planning scheme to preserve houses built in 1946 or earlier because of the contribution they make to the character of Brisbane. The strategic outcomes include that “Character housing provides a link with Brisbane’s history and helps reinforce a strong sense of place and community identity”. Thereafter in Table 220.127.116.11, Specific Outcomes and Land Use Strategies provide further guidance. Specific Outcome 20 states “Brisbane’s distinctive suburban identity is reinforced by its character housing precincts” and corresponding of Land Use Strategies include L20.1 which states “Character buildings built in 1946 or before are protected by overlays” and L20.2 which states that “Development proposals maintain the traditional building character housing that individually and collectively contributes to the distinctive character of the area and streetscape”. Significantly, the protection contemplated by these provisions is via overlays, and s 5.3.2 of the planning scheme provides that assessment required as a consequence of an overlay overrides assessments required as a consequence of a zone or neighbourhood plan.
- So far as this appeal is concerned, the following parts of the planning scheme describe the specific assessment benchmarks, which are in issue:
“5.3.3 Determining the requirements for accepted development and assessment benchmarks and other matters for assessable development
- Code assessable development
- is to be assessed against all the assessment benchmarks identified in the assessment benchmarks column;
- that complies with the purpose, overall outcomes and performance outcomes or acceptable outcomes of the code, complies with the code;
8.2.21 Traditional building character (demolition) overlay code
- Land in the Traditional building character overlay is defined on the Traditional building character overlay map and is included in the following sub-categories:
- Local character significance sub-category
- The purpose of the Traditional building character (demolition) overlay code is to:
- Implement the policy direction in the Strategic framework, in particular:
- Provide for the assessment of the suitability of building work for the demolition, removal or repositioning of a building or structure if any part of the building or structure was substantially constructed in 1946 or earlier, in the Traditional building character overlay.
- The purpose of the code will be achieved through the following overall outcomes:
- Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character.
- Development protects a residential building or part of a building constructed in 1946 or earlier where it forms part of a character streetscape comprising residential dwellings constructed in 1946 or earlier nearby in the street within the Traditional building character overlay.
Table 18.104.22.168 – Performance outcomes and acceptable outcomes
Section B—Demolition or removal of a building constructed in 1946 or earlier
General performance outcomes and acceptable outcomes if not in the Latrobe and Given Terraces neighbourhood plan area or the City west neighbourhood plan area
Development involves a building which:
Development involves a building which:
Additional performance outcomes and acceptable outcomes if in the Local character significance sub-category
Development involves a building which:
Development involves a building which has been substantially and irreversibly altered or does not have the appearance of being constructed in 1946 or earlier;
- The terms “traditional character” and “traditional building character” are defined extremely broadly in the planning scheme.
- At the commencement of the hearing of the appeal the issues in dispute extended to whether the house exhibits traditional building character and contributes to the traditional building character and traditional character of the streetscape of Leura Avenue and Leura Terrace. Specifically, compliance with Overall Outcomes 2(a) and 2(d) and Performance Outcomes 5 and 7 of the Traditional Building Character (Demolition) Overlay Code (“the Demolition Code”) remained for determination. However, at the conclusion of the evidence, the appellant conceded that the house exhibits traditional building character and contributes to the traditional building character and traditional character of the streetscape of Leura Avenue and Leura Terrace. It was expressly conceded that the demolition of the house would not comply with Overall Outcomes 2(a) and 2(d), nor with Performance Outcomes 5 and 7 of the Demolition Code. Rather, the appellant submitted that the discretion of the court pursuant to s 60(2)(b) of the PA should be invoked to approve the proposed development in circumstances where it did not comply with the relevant assessment benchmarks because there was no meritorious planning basis on which the development application should be refused. Mr Batty, on behalf of the appellant, argued that the appeal should be determined on the basis that the house did not make a meaningful or significant contribution to the parts of the streets in question, and that there is no planning merit in preserving it.
- Two experienced architects with expertise in heritage architecture gave evidence at the hearing of the appeal. Mr Elliott gave evidence on behalf of the appellant and Mr Kennedy gave evidence on behalf of the respondent. Mr Elliot was of the opinion that the house was constructed in the Conventional style “which was a traditional typology popular during the later Interwar period.” While he expressly conceded that it exhibited traditional building character, he noted that this style of house continued to be built into the post-1946 era and as such it does not clearly exhibit the appearance of having been constructed in 1946 or earlier. He stated:
“While it is acknowledged that this modest residential style does comprise ‘timber and tin’ construction generally consistent with the broad range of earlier traditional house styles recognised as representing traditional building character and therefore protected from demolition by the overlay, it is noted that the Conventional house typology is considerably less elaborate in its planning and detailing. Therefore the subject house might also be seen as consistent with examples of post-1946 housing produced during the so-called Austerity period of residential construction immediately after WWII, such as the post-1946 house still extant at no. 63 Leura Avenue – three properties along in the same streetscape.”
- Conversely, Mr Kennedy was of the view that the house is not a typical example of a Conventional house, nor is it a typical traditional character house with a lightweight core surrounded by verandas. He was of the view that it was somewhere in between, featuring a high set timber frame sheeted with weatherboards, a high set construction supported on concrete stumps infilled with batons, a corrugated iron hipped roof with a projecting front hip, and an external entrance porch with a detached low-pitched roof.
- The house sits on a visually prominent corner. All but one of the houses opposite it in Leura Avenue and six consecutive houses to the south of it in Leura Terrance as well as a number of houses on the northern side of Leura Avenue, within the visual catchment considered by the expert witnesses, were constructed in 1946 or earlier and exhibit traditional building character. The house is clearly visible from a considerable distance down Leura Terrace to the south, and from numerous points in Leura Avenue. Not only does it exhibit traditional building character identified by Mr Kennedy, but it does so in circumstances where, because of its visual prominence in the relevant catchment, it makes a significant visual contribution to both of the streets referred to above which are within the overlay. There are therefore significant non-compliances with the assessment benchmarks set out in Demolition Code.
- The fact that another house nearby built after 1946, exhibits similar traditional building character and is not subject to the protection of the planning scheme is not relevant. Neither is the fact that the house is not in the CR Zone. As noted above, the planning scheme seeks to give protection to pre-1946 character houses by including them in the overlay, and the assessment benchmarks in the overlay (which are set out in the Demolition Code) override the assessment benchmarks in the zone in question. In circumstances where the house is structurally sound, it is irrelevant that it is in need of renovation and it is also irrelevant that I may personally find it to be lacking in certain aesthetic characteristics that are present in many of the other examples of traditional building character in the vicinity of the house. Where there is, on the evidence before me, a significant non-compliance with the assessment benchmarks in the Demolition Code, and a clear planning intent that the house is to be retained on the land, it is not appropriate to approve the development application given the extent of the non-compliance with the Demolition Code.
- The house clearly exhibits traditional building character. It is structurally sound and contributes to the traditional building character of the streets within its visual catchment where there are numerous other houses exhibiting traditional building character. I am unpersuaded that the development application should be approved in these circumstances. The appeal is therefore dismissed.
 Exhibit 1, vol 1, p 24.
 Exhibit 1, vol 2, p 107.
 Exhibit 5.
 Exhibit 1, vol 2, p 109.
 Brisbane City Plan 2014, Exhibit 3, p 237-239.
 Exhibit 1, vol 2, p 101.
 Ibid p 105, Fig 4.
 Ibid p 106, Fig 5 and p 157, Fig 48.
 PECA s 43.
 PECA s 45(1).
  QPELR 941, 957 at .
 See Strategic Framework s 3.4.1.
 See Strategic Framework s 3.4.1(1)(c).
 Ibid s 5.3.2(8).
 Exhibit 3 pp 237-239, SC6.30.
 T1-84 ll 40-45.
 T1-85 ll 15-25.
 Exhibit 1, vol 2, p 107.
 T1-46 ll 20-25.
 Exhibit 1, vol 2, p 108.
 Exhibit 1, vol 2, p 112.
 Exhibit 5.
 Exhibit 10.
 Unterweger v Brisbane City Council  QPELR 335 at 338.
- Published Case Name:
Nicola Austin Irvine v Brisbane City Council
- Shortened Case Name:
Irvine v Brisbane City Council
 QPEC 50
22 Oct 2019