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- Unreported Judgment
PLANNING AND ENVIRONMENT OF QUEENSLAND
Hurst v Brisbane City Council  QPEC 24
WARREN HURST & PAULA HURST
BRISBANE CITY COUNCIL
3254 of 2018
Planning and Environment
Hearing of an appeal
Planning and Environment Court at Brisbane
21 May 2020
11 and 12 May 2020
RS Jones DCJ
FACTS IN DISPUTE – whether as a matter of fact the dwelling located on the land was a pre-1911 building for the purposes of the Brisbane City Plan 2014 – if as a matter of fact the subject dwelling is then the appeal ought be dismissed and, if not, the appeal ought be allowed.
ONUS OF PROOF – which party bore the onus of proof – whether the Brisbane City Council bore the onus of establishing that the dwelling was a pre-1911 building – whether appellants bore the onus of proving that it was not.
CIRCUMSTANTIAL EVIDENCE – whether circumstantial evidence regarding building materials and time of construction raises a more probable inference that the subject dwelling was a pre-1911 building
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
Affram Pty Ltd v Brisbane City Council  QPELR 674
Belhaven and Stenton Peerage (1875) 1 App Cas 278
Bell v Brisbane City Council and Another  QCA 84
Currie v Dempsey (1967) 2 NSWR 532
Kocis v SE Dickens Pty Ltd  3 VR 408
Luxton v Vines (2000) 49 NSWLR 262
Selstram Pty Ltd v McGuiness (2000) 49 NSWLR 262
Sincere International Group Pty Ltd v Council of the City of Gold Coast  QPELR 247
Strong v Woolworths Pty Ltd (2012) 246 CLR 182
White v Johnston (2015) 87 NSWLR 779
Mr K Wylie for the Appellants
Mr N Loos for the Brisbane City Council
John Nagle & Co for the Appellants
Brisbane City Legal for the Respondent
- For the reasons set out below the orders of the court are:
- The appeal is dismissed.
- I will hear further from the parties if necessary as to any consequential orders.
- The subject land is located at 425 The Esplanade (Lot 331) in the bayside suburb of Manly. The area of the land is approximately 503m² and located thereon is a modest single residential dwelling. On or about 29 June 2018, the appellants lodged a development application for the demolition of the dwelling, with the Brisbane City Council (“the council”). By letter dated 10 August 2018, the council issued a Decision Notice pursuant to s 63 of the Planning Act 2016 (Qld), notifying the appellants that their application had been refused.
- In total there were 12 grounds for refusal. The first five of those grounds were, generally speaking, concerned with the application intending the demolition of a pre-1911 building which was, according to the council, in reasonable structural condition. That is, it did not require structural repair and was structurally sound. The remaining seven reasons for refusal were, again broadly speaking, associated with concerns that the proposed demolition would jeopardise the “bayside character” of the area and would otherwise have a deleterious impact on the “strong sense of place” and would not contribute to the distinctive neighbourhood character of the area, nor contribute to the distinctive suburban identity.
- On 7 September 2018, the appellants lodged their notice of appeal. While the grounds of appeal raise a number of issues, including compliance with relevant provisions of the Planning Scheme, it was agreed between the parties that to determine the outcome of this proceeding, only two questions needed to be considered. First, whether the council bore the onus of satisfying the court that the dwelling was a pre-1911 building or, whether it was for the appellants to satisfy the court that it was not. The second question was whether, as a matter of fact, the dwelling was a pre-1911 building.
- Before commencing further with some general observations concerning this proceeding, there were a number of unusual features that bear noting at this stage. First, it was agreed that save for the onus question, this proceeding required no determination of matters of law and was solely concerned with a factual determination, namely whether the dwelling was in fact a pre-1911 building or not. Second, not surprisingly given the first area of agreement, that if I was satisfied that the dwelling was a pre-1911 building, then the appeal ought to be dismissed, otherwise the appeal ought to be allowed. Third, it was agreed that grounds 6 to 12 of the reasons for refusal were irrelevant to the outcome of this proceeding and did not require any consideration or determination by the court.
- It was also uncontroversial that the subject building was structurally sound and not in need of any structural repair. The structural integrity of the building is significant. That is because, under the relevant assessment regime prescribed under the Planning Scheme (CP2014), a pre-1911 building is to be protected and preserved unless it could be established that it was structurally unsound and not reasonably capable of being made structurally sound.
- During his opening Mr Loos, counsel for the Council, described the case as being a circumstantial one. That said, according to him, there were three “beams of light that illuminate the corner and give … the answer that this house was constructed before 1911.” Those three beams of light were the mortgage taken out by John Dart and, in particular, Ms Frances Howard, on 20 April 1905 securing a loan of £300, the width of the VJ timber board cladding (both internal and external) and the form of the verandah roof.
- The Council relied on two expert witnesses, Dr Blake a historian and Mr Kennedy a conservation and heritage architect. According to Dr Blake, the mortgage was the “key issue” in the sense of being the best evidence to support the conclusion that the building was constructed prior to 1911. On the other hand, Mr Kennedy was of the view that the most probative evidence in support of that conclusion were the physical characteristics of the building but, nonetheless, the mortgage provided support for that conclusion.
- Mr Elliott, the heritage and conservation architect relied on by the appellants, without expressing a view as to when the subject building might have been constructed, after a detailed examination of a number of matters, expressed the following opinions in the joint expert report of the architects:
“Mr Elliott is of the opinion that the Respondent’s assertion of the subject house constitutes pre-1911 construction, as indicated by the inclusion of the subject site in the overlay, is not conclusive in terms of both the architectural analysis of the house and the corresponding historical research undertaken to identify any correlation between pre- 1911 site ownership and occupancy.
It is my opinion that an architectural assessment of the traditional house typology of the subject house can only provide an approximate indication of the era of construction, rather than a definitive date, given the range of pre-1947 traditional house styles constructed in Queensland comprises a wide variety of different house types that progressively underwent design changes over time in response to the development of new styles and variants, occupant expectations etc. It is noted that there is no specific and/or definitive change in traditional house construction, materials and methodology that occurred at the end of 1910 that resulted in the production of a materially different traditional house typology or typologies immediately thereafter that could readily be utilised to determine whether a particular building comprised either pre-1911 or post- 1911 construction.
While it is acknowledged that Frances Howard’s husband, Charles, received a single mention in the Queensland Towns Directory at Esplanade, Manly for the 1910-11 period, it is noted that the effect of timespan for this directory entry includes both a pre-1911 period (up to 31 December 1910) and a non-pre-1911 period (from 1 January 1911). Consequently it follows that the occupancy of the subject site by any of the pre-1911 owners cannot, in fact, be conclusively demonstrated in this regard as the Directory record could potentially represent occupancy by Charles Howard at The Esplanade in Manly during the first half of 1911 (i.e. not pre-1911).
Given all the available source documentation in relation to the ownership and occupancy of the site is vague in relation to the precise locality within Manly where one of the pre-1911 owners might have been residing, and the lack of any other historical source material to suggest otherwise; it is my opinion that the subject house cannot be considered to have been constructed prior to 1911 through the usual assessment process utilised by the Respondent to determine this issue.
In the absence of such contrary historical evidence it is reiterated that there would appear to be insufficient evidence to substantiate the inclusion of the subject house (and its site) in the pre-1911 building overlay. Therefore it is considered that the Respondent’s assertions in relation to the earlier construction of the subject house were ill-founded and the subsequent inclusion of the site in the corresponding overlay in December 2017 is a mapping error. (emphasis added)
- Both Dr Blake and Mr Kennedy disagreed with the opinions of Mr Elliot. Indeed, during cross examination Mr Kennedy went so far as to say that this was not a circumstantial case at all and that he was 99 percent certain that the dwelling was a pre-1911 building “by the width of the boarding alone”.
Who bears the onus?
- Before descending into the evidence of the expert witnesses I should deal with the first issue raised, namely, who bears the onus. Initially, Mr Wylie contended that not only did the Council bear the onus of establishing that the building was constructed pre-1911, but also “that the onus should be assessed by reference to the Civil standard contemplated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363-3” and that “the Court would require a high degree of satisfaction before being satisfied that the Council’s onus in this proceeding (sic) proved.”However, during his submissions in reply, Mr Wylie withdrew his reliance on Briginshaw but maintained that the onus still lay with the Council to satisfy the Court on the balance of probabilities.
- For reasons which will become apparent, it is unnecessary for me to express a final view on this matter. That is so because, even if I was to proceed on the basis that it was for the Council to satisfy me on the balance of probabilities that the dwelling is a pre-1911 building, the evidence satisfies me that that is in fact the case. That said, having regard to the extensive arguments raised on behalf of both parties, I will make some observations.
- On behalf of the appellant, it was accepted that in proceedings such as this, it is the appellant that would ordinarily bear the onus pursuant to s 45 of the Planning and Environment Court Act 2016 (‘P&E Court Act’) which relevantly provides:
“Who must prove case
- (1)For a Planning Act appeal about any of the following matters the appellant must establish the appeal should be upheld
- An application or request under the Planning Act for which the appellant was the applicant or person making the request”.
- It should be noted that there is a statutory exception in circumstances where the appeal has been instituted by a submitter or advice agency in respect of a development application. Section 45(2) provides:
“For a Planning Act appeal about a development application by a submitter or advice agency, the applicant must establish the appeal should be dismissed.”
- It is uncontroversial that in this case the appellant was the applicant for the purposes of s 45(1)(a). One might ordinarily be forgiven for thinking that that is the end of the matter. However, the appellants rhetorically ask; but what, exactly, is the case that must be proved? The answer to this question is given by s 43 of the P&E Court Act which provides that the appeal is byway of a hearing anew, and s 46(2) of the P&E Court Act which provides:
“(2) The Planning Act, s 45 applies for the P&E Court’s decision on the appeal as if –
- The P&E Court were the assessment manager for the development application …”
- Thereafter, a number of the provisions of CP2014 and other provisions of the P&E Court Act are referred to and it is then asserted:
“Accordingly, the question in this appeal is not whether the development complies or does not comply with an assessment benchmark, the assessment of which is the fundamental process to be undertaken by this Court, but whether (the relevant provision of CP2014) is triggered by the subject development so as to properly introduce the requirement for the Court to carry out its assessment against the pre-1911 Building Overlay Code benchmark.
Given the Council is the party contending (that the relevant provisions of CP2014) applies so as to trigger the requirement for assessment against the Pre-1911 Building Overlay Code assessment benchmark, for the reasons explained by Andrews SC DCJ in Affram, it is appropriate that it be the party to make good on that proposition.
It was the Council that decided to include the land within the pre-1911 Building Overlay Code, it was Council who decided to assess and decide the development application on the basis that (the relevant provisions of CP2014) triggered the application of the pre-2911 Building Overlay Code assessment benchmark, it was Council who refused the development application after carrying out assessment against the pre-1911 Building Overlay Code assessment benchmark, and it is Council who contends that is still the case. Given this is not a question of demonstrating satisfaction of an assessment benchmark, s 45(1)(a) is not apt, and for the reasoning set out in Affram it is appropriate that Council bear that onus, and to the appropriate standard.”
- The reference to Affram is the reference to an earlier decision of this Court in Affram Pty Ltd v Brisbane City Council.Numerous passages of that Judgement are referred to in the appellant’s outline but, in my view, it is necessary only to repeat what his Honour Judge Andrews SC said in paragraph 25:
“This appeal is by way of hearing anew and the Court acts in place of an assessment manager. The Court must approve the application if satisfied that it complies with the Demolition Code. Reference to the table in the Demolition Code of Performance Criteria and Acceptable Solutions reveal that buildings are divided into three classes, namely ‘a residential building’, ‘a non-residential building’ and ‘a building built prior to 1990’. Buildings in the third of the classes being those ‘built prior to 1900’ will also be within one or the other of the first two classes because every building in a Demolition Control Precinct will be either a ‘residential building’ or a ‘non-residential building’. It will be the exceptional case where a building falling into one of the first and second classes will also be in the first class of a ‘building built prior to 1900’. Every building in the Precinct will fall within either the first or second class. It will be in only exceptional cases that a building falls within the third class. An appeal such as this is adversarial litigation between Appellant and Council...”
- The distinction between a “condition precedent” and “element established to the Council’s defence” referred to by His Honour was considered in Currie v Dempsey, and applied by his Honour Judge Williamson QC in Sincere International Group Pty Ltd v Council of the City of Gold Coastwhere it was said:
“In my opinion, the burden of proof in the sense of establishing a case, lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his course of action, eg, if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the course of action, but is one which, if established, will constitute a good defence, that is, an ‘avoidance’ of the claim which, prima facie the plaintiff has.”
- It was submitted on behalf of the Council that the reasoning of His Honour in Affram was wrong. Without finally determining the matter I do not consider that conclusion necessarily follows. As Andrews SC DCJ observed, at face value by reference to the relevant provisions of the Planning Scheme, the application might have been expected to be approved. It was only because the dwelling in that case fell within what His Honour described as an “exceptional” or sub-class case that approval might be denied. That is not the situation here. Accordingly, it would appear that Affram can be distinguished.
- In Sincere International, Judge Williamson QC, after referring to the above passage in Currie v Dempsey and went on to say:
“By analogy in this case, Sincere International bears the onus of proving that is appeal should be upheld. The matters that it must establish to exceed in the appeal are contained in its Amended Notice of Appeal. The matters set out therein do not involve the imposition of new conditions. Nor do they involve the rebuttal of the Council’s contention that the decision notice of 8 May 2018 should be amended to include condition 8 (and associated consequential amendments). This is a matter raised by the Council in ‘avoidance’ of the relief to which Sincere International has established a prima facie entitlement. The Council bears the onus in relation to the matter raised in ‘avoidance’.” (emphasis added)
- In this proceeding the appellants have expressly pleaded that the subject is not a pre- 1911 building. That can be clearly distinguished from the situation in Sincere International and, arguably, in Affram. In Sincere International what the court was concerned with, as I understand it, was not so much a matter raised or at least directly raised in the issues of dispute (including the matters pleaded in the Notice of Appeal) but a new matter raised by the Council which it sought to rely on to deny the appellant the relief it was otherwise entitled to. The relevant factual matrix His Honour was faced with in Sincere International bears more resemblance to that facing the Court in Affram than is the case here.
- As I have already stated it is unnecessary for me to express a final view on the matter. That said, it is my preliminary view that in this proceeding it would be the appellants who bore the onus pursuant to s 45(1)(a) of the P&E Court Act.
A Circumstantial Case
- In circumstances where counsel for both parties contend this is a circumstantial case it is appropriate that I deal with a number of matters raised in that regard before going on to deal with the evidence. Mr Loos’ reference to beams of light in his opening was a reference to the observations of Lord Cairns in Belhaven and Stenton Peeragewhere his Lordship said:
“My Lords, in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.”
- The observations of Lord Cairns were made some 145 years ago, however, they have been much more recently cited with approval in Selstram Pty Ltd v McGuiness.
“Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved in which it reasonable to find a balance of probabilities in favour of the conclusions sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise.”
- Finally on this topic, Hayne JA (as his Honour then was) in Kocis v SE Dickens Pty Ltdstated that a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities.
- The affairs of Ms Frances Howard loom large in the opinions expressed by Dr Blake. She was clearly not only a formidable business woman but also a woman whose personal life included an element of mystery. In the Biographical Notes contained in Dr Blake’s second reportit is said that in the early 1900s Ms Howard was living at Manly and was engaged in buying, selling and renting property in that suburb. It would also appear that from time to time it was more likely than not that she was also acting as a kind of real estate agent. She was also variously stated to be in the Commonwealth Electoral Roll as being a refreshment room keeper and later as being a housewife.
- Most relevantly, between 1901 and 1910 she acquired three properties on The Esplanade at Manly. She purchased the subject land together with one John Dart on 28 April 1905 (Lot 331). In 1906 the title was transferred solely into her name. In the meantime, in May 1905 Lot 331 was mortgaged to Arthur Cribb to secure a loan of £300. That mortgage will be referred to in more detail below. In addition to purchasing the subject land she also acquired the land to the immediate west which shared a common rear boundary and fronted Stratton Terrace (Lot 354). Ms Howard had previously acquired a parcel of land to the immediate north of the subject land (Lot 330). On Lots 331 and 345 modest dwellings were constructed. The dwelling constructed on the lot fronting Stratton Terrace has since been demolished and the land redeveloped. Lot 330 accommodates a combined residential/commercial development now known as the Baywatch Café.Lot 330 had originally been purchased by Ms Howard in December 1901. In March 1902, it was transferred to a Mr Charles Lloyd but re-acquired by Ms Howard in December 1902.
- In Dr Blake’s first report the mortgage to Mr Cribb is mentioned but only in passing. Instead, specific reference is made to the Queensland State Electoral Roll for the electoral districts of Bulimba and South Brisbane in 1905 and 1908 and the Commonwealth Electoral Roll for the subdivision of Wynnum, 1908. After referring to that documentary evidence, Dr Blake asserted:
“These sources provide compelling evidence that the Howards owned land in the Esplanade, Manly and that they were residing there possibly by 1906 and at the very latest 1908. Both the State Electoral Roll and the Commonwealth Electoral Roll confirmed their residence at the Esplanade Manly by 1908.”
- Thereafter, Dr Blake refers to the internal walls featuring the presence of 150mm boards and the “stepped” form distinguishing the main roofline and the verandah roof. He then concludes:
“The documentary evidence indicates a construction date of 1906- 1908.
This dating is supported by the building fabric. The internal walls comprising 150mm VJ boards and a separate verandah roof are indicative of a pre-1911 construction. These features are indicative of the date of construction and cannot be taken as conclusive. The changes in the use of materials in building form did not occur uniformly. Some builders were progressive, others conservative and were slow to adopt new approaches. The internal walls in verandah roof form cannot alone be used to definitively date the house. However, these attributes do demonstrate the plausibility of a 1906-8 date as revealed by the documentary evidence. (emphasis added)”
- The almost passing reference to the mortgage in the earlier report can be contrasted with Dr Blake’s approach in his subsequent report.In that report, according to Dr Blake, a mortgage securing the sum of £300 would have enabled the construction of two modest timber houses, one on Lot 354 and one on Lot 331. He refers to the mortgage as providing strong evidence for the construction of the dwelling circa 1905and the mortgage being the most definitive documentary evidence opining that a mortgage in the sum of £300 at that time is very unlikely to have been given for anything else other than the construction of a house.After then referring to the physical form of construction, in respect of which Dr Blake seems to defer to the opinion of Mr Kennedy, he concludes:
“The documentary evidence reveals that Frances Howard purchased 425 The Esplanade, Manly in April 1905 and in May 1905 obtained a mortgage. The mortgage was sufficient to construct a house, indicating a c 1905 date of construction.
This dating is supported by the building fabric of separated verandah roof form and internal walls comprising six inch VJ boards.
In my professional opinion, I consider that the available evidence family supports the conclusion that the subject house was built in c 1905, certainly before 1911.”
- Mr Wylie urged that I should treat Dr Blake’s evidence cautiously. That was said to be so for a number of reasons. First, what was said to have been his preparedness to speculate when it suited his case but reluctance to do so otherwise. Second, the number of unusual features surrounding the mortgage which would render it all but useless as a basis for reaching any meaningful conclusions. Third, the failure to include in his second report, the warnings about the use of the physical form of the building to form a firm opinion which appeared in his first report. Finally, the sudden shift of emphasis placed on the mortgage when it received no more than a passing reference in his first report.
- As to the first of the matters raised, I do not consider Dr Blake’s response to questions asked, either by reference to demeanour or substance in any way to negatively impacts on his reliability as an expert witness. I can accept that at times his answers involved an element of guidelines. For example, his rhetorical question about whether the mortgage money might have been spent on a yacht. However, in my view, those sort of responses seemed more to be expressions of frustration or exasperation than anything else.
- As to the third matter, again I do not consider the absence of the warnings contained in the first report in the second report to be of any particular relevance. During his cross-examination, Dr Blake readily accepted that he still held those concerns. While maintaining his concerns about the weight that could be placed on the built form as a historian, by the time he prepared his second report, as already referred to, he appears to defer to the opinions expressed by Mr Kennedy insofar as the built form is concerned. To adopt the language used by Mr Wylie, the mortgage issue was in Dr Blake’s “lane” whereas the built form was in Mr Kennedy’s “lane”.In this context I would also note that at no time was it directly put to him that that part of his first report was deliberately left out because it might have weakened his thesis.
- Turning then to the mortgage, six matters in particular were referred to ground the submission that collectively, there were too many unusual circumstances associated with it for it to provide any meaningful guide as to when the subject dwelling was constructed.
- I will deal with each of those matters but not necessarily in the order expressed in the appellant’s written submissions. That the loan was repaid after only two years without any indication as to where those funds might have come from causes me little concern having regard to Ms Howard’s active participation in the real estate market. The same can be said in respect of the facts that the money was borrowed from an individual rather than a bank and was an interest only loan. Indeed, that it was an interest only loan is not at all inconsistent with the fact that the loan was repaid after only three years.
- The next matter raised was whether or not the sum of £300 would be sufficient to fund the construction of two dwellings. That amount is not inconsistent with Dr Blake’s evidence that I accept, that at the time two modest dwellings could be constructed for approximately £150 each. At the risk of speculation I would also ask rhetorically: why would it be necessary to exclude the fact that Ms Howard had at least some capital available to her at the time which could have been used to supplement the loan funds?
- Nothing of substance turns on the fact that separate certificates of title were not issued for each of Lots 331 and 354, nor that separate loans and mortgages were not given in respect of each of those Lots. Finally, the reference to Mr Dart being left in the unusual position of remaining the borrower of funds to construct houses on land in which he had no interest can readily be accepted as an unusual feature. However, that has to be seen in the context that Ms Howard and Mr Dart were apparently not only jointly involved in real estate transactions from time to time, but were also more personally involved. In 1910 she had apparently separated from her husband and taken up residence with Mr Dart at Kangaroo Point.
- Finally, the matters raised in paragraph 47 of the appellants submissions, in my respectful opinion, do not raise matters of relevance but instead invite speculation.
- The matters that cause me most concern are the sudden elevation of the importance of the mortgage about which Dr Blake clearly had knowledge when he prepared his first report. Dr Blake’s explanation seemed to be based on him either, carrying out and discovering more facts about Ms Howard, and/or him realising that she led a more interesting life than he first supposed.I did not find that explanation particularly convincing. The second concern is, not only is there no clear link between the mortgage and the construction of this dwelling, but it is also not clear that Ms Howard ever even resided in it and, as Mr Wylie pointed out, given her involvement in the local real estate market, one could not readily rule out the borrowed funds being used elsewhere.
- At the end of the day, it is my respectful view of Dr Blake’s evidence that, first his opinion as to the built form should be subordinated to the opinions of Mr Kennedy. Second, while the evidence concerning the mortgage ought not to be dismissed in its entirety, it of itself, would not be sufficient to establish a basis for determining when the dwelling was most likely constructed. That said, the timing of the purchase of lot 331 together with the mortgage is at least more suggestive of the building being constructed before 1911 rather than later.
- The final aspect of Dr Blake’s evidence that I intend to deal with is that concerning the use or reliance that can be placed on the Post Office Directory Records. In those records Ms Howard is reported as residing at an address described as being “refreshment rooms” between 1907 and 1909. Dr Blake’s evidence, while somewhat confusing on this topic, seemed to be that Ms Howard first resided in the dwelling located on Lot 330, the Baywatch Café. However, sometime later when reported as being a “housewife” she moved into the subject dwelling.
- It may well be the case that, as Mr Elliot’s further investigations seem to suggest, from the time she purchased Lot 330 she resided in that premises for a number of years. She may in fact have never resided in the subject dwelling. Such information may be interesting from a historical perspective but is of little relevance when determining the most likely construction date of the subject dwelling in circumstances where for the reasons given below, I reject the hypotheses that the dwelling might have been moved onto Lot 331 between 1927 and 1933 or might have been constructed after 1911 with stockpiled VJ boards.
- If indeed neither Ms Howards nor anyone associated with her lived in the subject dwelling that might readily be explained by her involvement in various forms of real estate enterprises in the area. In any event, this very circumstantial information must give way to the evidence concerning the physical characteristics of the building itself. To put it bluntly, I found the description given to various proprietors or occupants at various locations in this area to be of no real assistance to either of the parties.
The heritage architects
- As identified above, Mr Elliott did not express an opinion about when it was likely that the dwelling was constructed. Instead, maintained the view for the reasons he advanced that there was insufficient evidence to justify it being classified a pre-1911 building.
- At one stage during his cross-examination, Mr Elliott raised the possibility of this building being moved onto Lot 331 at some unknown time. That had not been a matter previously raised or addressed by him as far as I am aware. While such an event could not be ruled out entirely it is so speculative as to not warrant any further consideration.
- Mr Elliott was prepared to accept that the detached form of the verandah roof was consistent with “a house built sometime prior to the beginning of the First World War, but it’s not specific to end [sic] of 1910 or 1911”. According to him, it is definitely consistent with a pre-World War One design of house but that you could not go any further than that in attempting to prescribe a fixed time of construction.That is, sometime between the land being purchased by Ms Howard and circa 1913/14. As Mr Elliott pointed out after the outbreak of the First World War there were probably very few builders left to construct houses between 1914 and 1918.
- In respect of the 150mm VJ boarding, Mr Elliott was also prepared to accept that wider VJ boards were a “potential indicator of an earlier construction period”. However, he went on to say:
“Once again, I would agree in a general principle [sic] that wider VJ boards can be used as a – as an – a potential indicator of an earlier construction, but I’m not aware of any specific Queensland standard or timber industry standard where everyone says, ‘look we’re just not going to do six inch anymore. We’re just going to do fours.’ I’ve done quite a lot of research since reviewing Mr Kennedy’s report, trying to get more information about that particular aspect of the house construction, and most of the architectural publications that deal with traditional houses and review them, the [indistinct] [indistinct] book, the Queensland House Publications by UQ, the – like, they make general comments about six inch or four inch VJ’s but not in – they’re more concerned with the architectural styles of individual houses. So I think, you know, there’s a possibility that a wider VJ board would be indicative of a builder that still had a stockpile from when they were last doing the wider ones, and he kept building until he ran out of his stockpile. The – and that has nothing to do with 1910 or any other date really. (emphasis added).”
- With all due respect to Mr Elliott, I have concluded that the reference to the use of stockpiled timber is again largely speculation on his part. There is no mention of it in either the joint expert report or his individual court report as far as I am aware. Further, there is no evidence that the stockpiling of boarding by builders was a usual or common practice. In this context I much prefer the evidence of Mr Kennedy that this was highly unlikely and that builders would be more likely to acquire timber as and when required.
- In his court report reference is made by Mr Elliot to both the subject dwelling on Lot 331 and the shop and residence (Baywatch Café) on Lot 330 and went on to say:
“In my opinion, this additional research may be relevant to this proceeding, because:
- Lot 330 immediately adjoins Lot 331.
- Lot 330 is currently is [sic] improved by a combined shop and residence building (the Lot 330 building).
- The Lot 330 building has the appearance of being constructed in or around the same period of time as the Lot 331 building; and
- The Lot 330 building appears as if it would be more suitable for use as a refreshment room than the Lot 331 building. (emphasis added)"
- In this context, Mr Elliott was also prepared to accept that the existence of a mortgage in 1902 over Lot 330 together with the “physical fabric” of the building thereon was indicative of it being constructed circa 1902.
- While Mr Elliott was not asked to comment on this particular aspect one could ask rhetorically: in circumstances where Mr Elliott accepts that the buildings on Lots 330 and 331 were constructed, by reference to their physical appearance, in or around the same time and, was also prepared to accept that the built form, together with the timing of the mortgage was indicative of the building on Lot 330 being constructed before 1911 even as early as 1902, why then would not a building with the same physical characteristics together with a mortgage in 1905 be indicative of that building also being constructed prior to 1911?
- Turning then to the evidence of Mr Kennedy, in my respectful opinion, he carried out a more comprehensive analysis of the characteristics of the built form of the subject building. In his court report he expressed the following conclusion:
“The photographs from 1911 and 1912 Workers Dwellings Reports that appear in appendix A and B of this report show that by then the verandah roof style was different to that exhibited by the subject house. Further, the results from Queensland Houses at Denmark Hill, Ipswich demonstrate that the detached verandah roof form and 150mm boarding width of the subject house are indicative of a house constructed before 1910.Whilst acknowledging that anomalies do occur, in my opinion the subject house was probably built before 1910.”
- In respect of Mr Kennedy’s use of the Denmark Hill data, I accept his evidence that, whilst there might be some limitations and/or anomalies that might impact on the weight to be given to that data, overall what was being built in Ipswich was “very similar” to what was being built in Brisbane at the time.
- In respect of the use of the 150mm VJ boards, Mr Kennedy was particularly adamant about the timeframe in which boards of that width were used. During his cross- examination the following exchange took place:
Q. Yes. And the reason it’s a different date is because, as you said in your evidence before, there are sort of – all things being equal, you can make assumptions but you know, trying to sort of pick one year from another year or one year from two years later is difficult isn’t it?
A. Yes. I think it’s obvious when you go and look at houses, you can say, this house was definitely built in – in 1880. It’s not – it’s not that hard to do. But these sorts of houses in five inch boards – I’ve never seen a house with five inch boards built after 1911, but there may be – they may occur. I haven’t seen one that I know of.
A. And – and I’ve always had that in mind. I suppose the work I did at Ipswich it might have been a very small sample, but I’ve always had in my mind that four inch boards came around about 1904 onwards, and that has sort of fitted in to most of things I’ve seen.
- In response to a question from the bench the following exchange took place:
Q. … This might just be a question of semantics, but during Mr Lees’ opening, he told me that it was a circumstantial case, that there were three beams of light that would lead me to a conclusion in favour of his client, being the mortgage, the width of the external – the width of the boards and the verandah. You’re quite adamant, in a response to Mr Willey, that this is not a circumstantial case. Now, is it a question of semantics or have you got something to add about …?
A. Well, maybe I’ve misconstrued his question there. It – to me, I think there’s a 90 percent – 99 percent chance that it was built prior to 1911 by the width of the boarding alone. So it is still circumstantial, but it’s very minor in terms of circumstantial …
- At the end of the day I am unable to be as certain as Mr Kennedy about the subject dwelling being constructed prior to 1911. That said, his evidence was very persuasive for a number of reasons. First, at no stage was his evidence shaken in cross- examination. Second, he appeared to me to be a witness ready to make reasonable concessions where required. Importantly, his conclusions find a degree of support in the evidence of Mr Elliott. That evidence being to the following effect. First, by reference to the verandah roof and the width of the VJ boards the subject dwelling was built, according to him, no later than 1913-14. This reduced the time frame about which controversy may exist quite considerably. Second, the subject dwelling and the building constructed on the adjoining Lot (Lot 330) had the appearance of being constructed in or around the same time. And, given the physical characteristics of that building together with the mortgage over the land it was clearly open to infer that it was built circa 1902.
- In this case it cannot be stated with absolute certainty that the dwelling was not constructed after 1911 by stockpiled VJ boards or otherwise. Nor that it was constructed after 1911 at another location and moved onto the land. That those and even other possibilities exist does not prevent a finding based on the balance of probabilities.
- On balance, the evidence leads me to quite comfortably conclude that it is more likely than not that the subject dwelling is a pre-1911 building. And, by reference to the mortgage, notwithstanding its unusual features, was possibly built as early as 1905 or 1906. Accordingly the appeal must be dismissed.
- However, before making the final orders, I would wish to put on the record a number of matters. As Mr Wiley correctly pointed out, the conclusion that I have reached will have a material and detrimental impact on the appellant’s capacity to develop the land in the way they intended. That consequence is in circumstances where the subject dwelling at no time was described as being a particularly good or important example of pre-1911 building. Indeed, it is an extremely modest one, both in respect of physical appearance and dimensions. Also, as Mr Elliott stated in an earlier report, the physical integrity of the building has been seriously compromised. The front verandah has been enclosed, and aluminium awnings and metallic cladding covering the original timber weatherboards have been introduced. The original windows have been replaced with post-World War II hopper-type windows and the under croft of the structure has been materially altered including the introduction of a metallic garage door and other sliding glass doors.
- In this regard, I agree with Mr Elliott’s observation to the effect that while some of the traditional form of the subject house remains visible from the street, most of the other architectural attributes typical of this period of design have been enclosed, replaced or otherwise compromised.
- Having regard to its physical appearance and its surroundings one can readily understand why the Council did not maintain those seven of its grounds of refusal concerned with matters such as bayside character, retention of the bayside area’s strong sense of place and/or community sense of place or its contribution to the streetscape’s distinctive character etc.
- In Bell v Brisbane City Council and Anotherit was said that the starting point is that a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.
- In this case however, on the evidence placed before me, one can sympathise with the position in which the appellants find themselves. Their intentions have been thwarted for no apparent reason other than the building was more likely than not constructed prior to 1911 in circumstances where both Mr Elliott and Mr Kennedystruggled to find any particular relevance or significance of that date. Overall, it is difficult to discern the planning purpose or public interest that will be achieved by retaining this dwelling in its current location and physical appearance other than preservation for its own sake.
- Notwithstanding those final comments the orders of the court must be:
- The appeal is dismissed.
- I will hear further from the parties if necessary as to any consequential orders.
 The pre-1911 building overlay code.
 Transcript (T) 1-14, ll 10-47: T1-15, ll 1-20.
 At one stage Mr Kennedy seemed to have also considered the mortgage to be the most persuasive piece of evidence (T1-59, ll 46-47) but on any fair review of this evidence, which was not the case. As much was accepted by Mr Wylie (T2-13, L42 – T2-14, L42).
Exhibit 4, paras 20.1, 20.1(f), 20.1(i), 20.1(j) and 20.1(l).
T1-62, ll 12-22.
 Appellant’s written submissions at paras 35 and 37.
 Appellant’s written submissions at paras 11-12.
 At para 22-23.
 QPELR 674.
(1967) 2 NSWR 532 at 539 per Walsh JA: cited with approval more recently in White v Johnston (2015) 87 NSWLR 779 at .
 QPELR 247.
At para 39.
(1875) 1 App Cas 278 at 279.
 49 NSWLR 262 at  per Spigelman CJ.
(1952) 85 CLR 352 at 358.
(1951) 217 ALR 1.
 3 VR 408: sided with approval in Strong v Woolworths Pty Ltd (2012) 246 CLR 182 at .
Pictorially depicted in Exhibit 5 at p 10.
At paras 20 and 21.
At para 8.
At para 12.
T2-15, ll 1-21.
Appellant’s written submissions at para 46-47.
T1-26, L43 to T1-27, L1-24.
T1-49, ll 40-47.
T1-50, ll 8-10.
T1-50, ll 20-34.
T1-59, ll 26-30.
Exhibit 5 at .
Exhibit 8, p 8.
T1 – 60 l10-30.
T1 – 59 l12-30.
T1 – 62 l13-24.
Exhibit 3, Tab 8, pp 30-32.
 QCA 84 at -, per McMurdo JA.
Refer to para  herein.
T1-58, ll 34-47.
- Published Case Name:
Warren Hurst and Paula Hurst v Brisbane City Council
- Shortened Case Name:
Hurst v Brisbane City Council
 QPEC 24
21 May 2020