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Thurecht v Brisbane City Council[2015] QPEC 19

Thurecht v Brisbane City Council[2015] QPEC 19

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Thurecht & Anor v Brisbane City Council [2015] QPEC 19

PARTIES:

KATHRYN THURECHT

(First Appellant)

AND

STEPHEN THURECHT

(Second Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

3175/14

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

15 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2015

JUDGE:

Searles DCJ

ORDER:

1.Appeal will be dismissed.

2. Costs are reserved, with the parties to provide any costs submissions within 14 days of this judgment.

CATCHWORDS:

PLANNING AND ENVIRONMENT – DEMOLITION – RESIDENTIAL PREMISES – Whether house contributes positively to the visual character of the street – Whether entire street or sections of it – Whether demolition will result in loss of traditional timber and tin building character – Whether approval justified despite any established conflict.

Brisbane City Plan 2000

Brisbane City Plan 2014

Sustainable Planning Act 2009 (Qld) ss 313, 495(2)(a)

Armstrong v Brisbane City Council [2003] QPELR 475

Berlese v Brisbane City Council [2003] QPELR 330

Kangaroo Point Residents Association v Brisbane City Council [2002] QPELR 75

Leach & Ors v Brisbane City Council [2011] QPELR 609

Litbit Pty Ltd v Brisbane City Council [2009] QPELR 197

Lonie v Brisbane City Council [1998] QPELR 209

Lynch v Brisbane City Council [2011] QPELR 314

Razia Developments Pty Ltd v Brisbane City Council [2005] QPELR 205

Unterweger v Brisbane City Council [2012] QPELR 335

Weightman v Gold Coast City Council & Anor [2002] 121 LGERA 161

COUNSEL:

Mr S Keliher (Solicitor) for the Appellants

Mr B Job of Counsel for the Respondent

SOLICITORS:

Milne Legal for the Appellants

Brisbane City Legal Practice for the Respondent

Contents

Nature of Appeal 3

Assessment Regime 3

CP2000 3

CP2014 3

The House 4

Submitters 4

Council’s grounds for refusing the Development Application 4

Grounds of Appeal 5

Further Grounds of Appeal 6

Relevant provisions of CP2000 8

Relevant provisions of CP2014 13

Joint Experts Report 17

Points of Disagreement between Experts 19

Loss of traditional ‘timber and tin’ building character within the DCP 19

Contribution to the visual character of the street  21

Protecting traditional character and amenity in Residential Areas 23

Ensuring preservation of pre-1946 buildings in the streetscape 24

Ensuring precincts of pre-1946 houses are retained 25

Reducing the hillside character of the Hillside Precinct 26

Substantial differences between CP2014 and CP2000 of relevance 26

Appellants’ Submissions 27

Council’s Submissions 29

Consideration 31

Orders 37

Nature of appeal

  1. [1]
    This appeal challenges the decision of Council in Decision Notice of 4 August 2014 refusing a development application (DA) for a preliminary approval to carry out building work for the demolition of a house in a Demolition Control Precinct on land described as lots 112 and 113 on RP19635 and situated at 28 Wilden Street, Paddington (Land).  The DA was lodged under City Plan 2000 (CP2000) on 23 June 2014, one week before the commencement of City Plan 2014 (CP2014) on 30 June 2014.

Assessment regime

  1. [2]
    It is common ground that the DA requires code assessment,[1] carried out in accordance with s 313 of the Sustainable Planning Act 2009 (Qld) (SPA), and that any approval must not conflict with the Planning Scheme unless there are sufficient grounds to justify the decision, despite any conflict established. 
  1. [3]
    The relevant assessment code under CP2000 is the Demolition Code (Code), which is to be read as being the Purpose, Performance Criteria and Acceptable Solutions.[2]  Under section 495(2)(a) of SPA, the appeal is to be decided based upon the laws and policies applying at the time of application – that is, CP2000 - but weight may be given to any new laws the court considers appropriate.  It is common ground that CP2014 should also be considered.

CP2000

  1. [4]
    Under CP2000 the land is within:
  1. (a)
    the Residential Neighbourhoods element of the strategic plan;
  1. (b)
    the Low-medium Density Residential Area;
  1. (c)
    a Demolition Control Precinct (DCP); and
  1. (d)
    the Ithaca District Local Plan Area.

CP2014

  1. [5]
    Under CP2014 it is within:
  1. (a)
    the Low-medium Density Residential (2 or 3 Storey Mix) Zone;
  1. (b)
    Hillside Character Precinct of the Ithaca District Neighbourhood Plan;
  1. (c)
    the Dwelling House Character Overlay area; and
  1. (d)
    the Traditional Building Character Overlay area, and within the Neighbourhood Character sub-category.

The House

  1. [6]
    The subject house (House) is a pre-1946 residential timber building, built after 1911.  It is common ground that it structurally sound and/or capable of structural repair.[3]  The two architects who authored the joint report (JER), Mr O'Brien (Appellants) and Mr Kennedy (Council), agreed it is “recognisably a pre-1946 house which expresses traditional timber and tin building character within s 4 of the Demolition Code”.[4]

Submitters

  1. [7]
    There were 26 submitters, all opposing demolition.[5]  The themes running through those submissions are:

.The subject house is a very good example of ‘traditional building character’, which has been kept in good condition and structurally sound and contributes positively to the visual character of the street.

.Demolishing the subject house would set an unfavourable precedent for potential demolitions of other houses in the street in the future, to the detriment of Paddington’s architectural heritage.

Council’s grounds for refusing the Development Application[6]

  1. [8]
    As to CP2000, Council refused approval of the DA in these terms:

“A decision to approve the development application would conflict with the Purpose, Performance Criterion P1 and Acceptable Solutions A1.1 to A1.4 of the Demolition Code when properly construed in the context of City Plan 2000 as a whole, and in particular:

  1. (a)
    DEO 3.3.1 and strategy 3.3.2.2;
  1. (b)
    The Residential Neighbourhoods element of the Strategic Plan including s.4.2.2 and 4.2.2.4 regarding the maintenance of character;
  1. (c)
    the Residential Area provisions including:

i.s.5 (Residential Areas) which recognises that traditional architecture is an important characteristic of the City’s older suburbs;

ii.the intent of the Low-Medium Density Residential Area in s.5.4.1 that parts of that Area within Demolition Control Precincts are locations where pre-1946 timber and tin housing will be retained;

iii.DEO 4 in s.5.4.2; and

  1. (d)
    the intent for the Hillside Character Precinct in s.3.8 of the Ithaca District Local Plan.
  1. [9]
    As to CP2014, Council based its refusal on the following:

“A decision to approve the development application would conflict with the Purpose, Overall Outcomes, and Performance Outcome PO5 and Acceptable Outcome AO5 of the Traditional Building Character (Demolition) Overlay Code when properly construed in the context of City Plan 2014 as a whole, and in particular:

  1. (a)
    the Strategic Framework including:

i.the Strategic Intent;

ii.Theme 2 and Element 2.1;

iii.Theme 5 and Element 5.5;

  1. (b)
    the Low Medium Density Residential Zone Code including:

i.the local government purpose of the Code to implement the policy direction of Theme 2 and Element 2.2, and Theme 5 and Element 5.5 (s.6.2.1.2(2)(a));

ii.the inclusion of the land within the 2 or 3 storey Mix precinct;

iii.the purpose of the Code that development retains an existing dwelling house that is located within the Traditional Building Character Overlay (s.6.2.1.2(4)(e));

iv.the precinct Overall Outcome that development responds to local characteristics and to surrounding character and architecture (s.6.2.1.2(7)(f)); and

  1. (c)
    the Ithaca District Neighbourhood Plan Code including:

i.the inclusion of the land within the Hillside Character Precinct;

ii.the Purpose of the Code (s.7.2.9.2.2(1));

iii.the Overall Outcomes of the Code including ss.7.2.9.2.2(3)(a),(c) and (m); and

iv.the Overall Outcomes for the Hillside Character Precinct.

Grounds of appeal

  1. [10]
    The Appellants’ grounds of appeal are:
  1. (a)
    To the extent that the desired environmental outcomes and strategies in the strategic plan or the intents and desired environmental outcomes for sections 5.4.1 and 5.4.2 of the Low-medium Density Residential Area apply, the development application does not compromise and is not contrary to the identified desired environmental outcomes, intents and strategies given the circumstances of paragraphs (b) and (c) below;
  1. (b)
    The development application is not contrary to the purpose of the Demolition Code because, inter alia:
  1. (i)
    Wilden Street does not have traditional building character, being characterised by a predominance of buildings not constructed prior to 1946, townhouses or buildings which do not express traditional “timber and tin” building character;
  1. (c)
    The development application complies with Performance Criteria P1 of the Demolition Code because:
  1. (i)
    the House does not contribute positively to the visual character of Wilden Street because:

A.the House is elevated above significant retaining walls and set amongst extensive vegetation and is not directly accessible from the main Wilden Street road reserve (being accessible from an internal road connected to the main Wilden Street reserve). These features mean that the House is visually isolated from the general Wilden Street streetscape; and

B.given its visual isolation from the general Wilden Streetscape, the House does not contribute positively to the Wilden Street streetscape;

  1. (ii)
    the development application complies with both Acceptable Solutions A1.3 and A1.4, compliance with either of which gives rise to compliance with Performance Criteria P1;
  1. (iii)
    the development application complies with Acceptable Solution A1.3 because the demolition of the House will not result in the loss of traditional “timber and tin” building character within the demolition control precinct; and
  1. (iv)
    the development application complies with Acceptable Solution A1.4 because the Wilden Street streetscape is highly fragmented and does not have traditional building character as it is characterised by a predominance of buildings not constructed prior to 1946, townhouses or buildings which do not express traditional “timber and tin” building character.
  1. (d)
    To the extent that the proposed development conflicts with the City Plan (which is not admitted), there are sufficient grounds to approve the development application, notwithstanding any such conflict.

Further grounds of appeal

  1. [11]
    Pursuant to an order of this court of 6 November 2014, the Appellants provided the following further grounds of appeal:[7]

City Plan 2000

  1. The subject house should not be considered to be in a demolition control precinct as it does not satisfy the criteria in section 4.2.2.4 of the Strategic Plan as it is not in a minimum group of 3 houses, with at least two-thirds containing pre-1946 houses.
  1. The proposed demolition complies with the intent of the Ithaca District Local Plan as section 2.1 notes that ‘timber and tin’ housing on single lots with established gardens are to remain an integral part of the character of the district. As the subject house is on two lots, by inference, it is not expected to remain an integral part of the character of the district.
  1. The subject house lies in a pocket of 8 properties which have been specifically designated Low Medium Density Residential, while other properties across the road and further along Wilden St are designated Character Residential. This shows that the Respondent intends for this property to be developed to a higher intensity than the properties across the road.
  1. The proposed development complies with the purpose and the relevant performance criteria of the Demolition Code and therefore complies with all sections of the City Plan 2000 referred to in paragraph 2 of the Respondent’s Grounds for Refusal provided on 17 November 2014.

City Plan 2014

  1. The subject house lies in a pocket of 8 properties which have been specifically zoned Low Medium Density (2-3 Storeys) (a more intense zoning than under the City Plan 2000), while other properties across the road and further along Wilden St are in the Character Residential zone. Again, the Respondent’s planning scheme indicates that this property is intended for more intense development than other properties nearby which have different zonings.
  1. The proposed development complies with the purpose of the Ithaca district neighbourhood plan code as it complies with the following overall outcomes:

a.7.2.9.2.2(3)(b) as it would provide the opportunity for a mix of housing densities and types;

b.7.2.9.2.2(3)(c) as it minimises the visual impact within its visual catchment;

c.7.2.9.2.2(11)(c)(i) as it would provide the opportunity for uniform spacing and stepping of houses in this section of the street.

  1. The proposed development complies with the purpose (8.2.21(2)(d)) of the Traditional building character (demolition) overlay code as the subject house does not form an important part of the streetscape.
  1. The proposed development complies with Performance Outcome P05 of the Traditional building character (demolition) overlay code and the subject house does not contribute positively to the visual character of the street.
  1. The proposed development complies with Acceptable Outcomes A05(c) and (d), as demolition of the subject house will not result in the loss of traditional building character, and the relevant section of the street has no traditional character.
  1. By virtue of the grounds listed in paragraphs 6, 7, 8 and 9 above, the proposed development complies with all sections of the City Plan 2014 referred to in paragraph 5 of the Respondent’s Grounds of Refusal provided on 17 November 2014.

Sufficient Grounds

  1. Should any conflict be found between the development application and either the City Plan 2000 or the City Plan 2014 (which is denied, any such conflict would be minor, and the following grounds are sufficient to justify approval despite such conflict:

a.The development application would allow for much needed and anticipated infill development within the local government area;

b.The development application would allow for a logical extension of the pattern of development established by the four houses next to the subject house, and thereby provide a more uniform streetscape in terms of character, spacing and stepping than that currently existing.

Relevant provisions of CP2000

  1. [12]
    Relevant provisions of CP2000 are:

12.1    Elements of the City[8]

4.2.2.4 Maintaining Character[9]

Each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the City, topography, vegetation, social composition, history and proximity to a local centre. Development should respect and be compatible with the local character.

In older suburbs, the unique character is derived mainly from the topography, urban layout and ‘timber and tin’ architecture. Much of this ‘timber and tin’ housing will remain and new development will reflect traditional design elements while allowing for innovative design responses.

Whilst ‘timber and tin’ housing is a distinctive feature of Brisbane’s traditional building character, other less common housing styles and materials, such as masonry construction, are important and worthy of retention.

Demolition Control Precincts are those locations in older suburbs that contain pre–1946 housing with distinctive traditional architecture.

A precinct contains either:

• a minimum group of 3 houses, and at least two thirds of the precinct contains pre–1946 houses

OR

• a building built prior to 1900

OR

• properties of local significance identified in a Local or Neighbourhood Plan.

12.25.4 Low-medium Density Residential Area[10]

5.4.1 Intent

The Low–medium Density Residential Area will contain a mix of houses up to 2 storeys and 2 and 3 storey multi–unit dwellings and single unit dwellings. Land in this Area is located in those parts of the City that are close to public transport networks or centres.

Parts of the Low–medium Density Residential Area are included in the Demolition Control Precincts. At these locations pre–1946 ‘timber and tin’ housing will be retained and new development will reflect pre–1946 architectural character. Where feasible, development in Demolition Control Precincts will incorporate pre–1946 dwellings at the front of the new development. (Emphasis added).

5.4.2 Desired environmental outcomes

  1. …
  1. …
  1. …
  1. In Demolition Control Precincts pre-1946 ‘timber and tin’ buildings are largely retained and new buildings reflect many of the Precincts architectural themes.

12.3    1 Introduction[11]

This chapter provides details of Codes used in assessments.  The Codes give guidance on specific aspects of development that apply to different Areas or types of developments.  The Codes are listed alphabetically for ease of use. 

1.1 How to use the Codes

Performance Criteria and Acceptable Solutions

…

…

…

…

The Performance Criteria are in the left hand column of the Code table.  They provide a statement of the outcome that the Acceptable Solution must achieve.  A proposal is not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met.  (Emphasis added).

…

For code an impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria.  There may be other ways of complying with the Performance Criteria which while still meeting the Code’s Purpose.  It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria.  A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.

12.4    Demolition Code[12]

1. Application

This code will apply in assessing building work for the demolition, partial demolition, removal or repositioning of building where:

  • On a site in the Demolition Control Precinct where any part of the residential property was substantially constructed in or prior to the end of 1946; or
  • …
  • …
  • …
  • …
  • On a site where demolition is assessable against this code under a local plan.

2. Using this Code

In using this Code reference should also be made to Section 1.1 – How to use Codes, at the front of this Chapter. 

When this Code is listed in a level of assessment table in Chapter 3 or a Local Plan in Chapter 4 as an Applicable Code for Code assessment…:

  • The Code is to be read as being the Purpose, Performance Criteria and Acceptable solutions.

3. Purpose

The purpose of this code is to:

  • Protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity;
  • …
  • …
  • Ensure the preservation of buildings where they form an important part of the streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946;
  • Ensure the contribution of houses constructed prior to the end of 1946 that reflect design style and materials other than ‘timber and tin’ architecture is recognised and retained in the Low Density Residential Area and Character Residential Area.

4. Assessment guidance – an explanation of traditional building character

Building form and scale

The predominant traditional building form of pre–1946 housing is a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandahs. Roof forms are medium pitched pyramids, hips or gables. This style is often referred to generically as the Queensland vernacular.

Other traditional building forms also exist, exhibiting overseas architectural influences on Brisbane’s residential design. These building forms occurred primarily during the interwar period. These styles include, but are not limited to, Art Deco, Spanish Mission, Californian Bungalow and Georgian.

Materials and details

The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens and batten panels that cast shadows and provide three–dimensional effects. Character is also derived from the relatively limited range of materials available at the time of construction. This provided a unifying theme of painted timber walls and corrugated steel roofing.

These lightweight external elements reduce building bulk and form a transition with the external landscape. They make an appropriate response to the local climatic conditions of strong sun and high rainfall.

Whilst ‘timber and tin’ are the predominant materials of the older suburbs, (sic) the presence of other distinctive building forms, such as the Spanish Mission, and their variety of materials highlights the overseas influence on residential design in Brisbane and is a part of the traditional building character. These housing styles are usually rendered on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof.

 

5. Performance Criteria and Acceptable Solutions

Performance Criteria

Acceptable Solutions

Where a residential building:

P1 The building:

  • must not represent ‘traditional building character’, or
  • must not be capable of structural repair, or
  • must not contribute positively to the visual character of the street

Note: ‘Traditional Building Character’ is described in Section 4 of this Code

Where a residential building:

 

A1.1 …

OR

A1.2 …

OR

A1.3

The demolition of a building will not result in the loss of:

  • traditional building character within the Demolition Control Precinct where in a Low Density Residential Area or Character Residential Area, or
  • traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low–medium Density Residential Area

OR

A1.4 …

12.5Ithaca District Local Plan

3.8 Hillside Character Precinct

Refer to Map F—Hillside Character Precinct.

This precinct is characterised by steeper residential areas containing traditional character housing and significant ridgelines. Hillside character is derived from the relationship of buildings to their physical setting. Traditional character housing built following an historic subdivision pattern and located on well–treed hillsides results in a unique character of important visual significance in the local context. This hillside character is maintained, retained and enhanced through sympathetic development that minimises visual impact within its

visual catchment.

Residential development in particular, provides and/or incorporates:

  • the appearance of traditional character houses uniformly spaced and stepped across well–treed hillsides
  • compatible building height, bulk and proportions
  • construction methods, such as posts or piers, that minimise the amount of alteration to site topography.

Development along major ridgelines in the precinct contributes to a consistent rhythm and sense of scale along the ridgeline when viewed from the surrounding visual catchment.

(End of CP2000 provisions)

Relevant provisions of CP2014

  1. [13]
    Relevant provisions of CP2014 are:

13.1     6.2.1.2 Low-medium Density residential zone code

(2) The local government purpose of the code is to:

  1. (a)
    ….
  1. (b)
    ….
  1. (c)
    Provide for a mix of dwelling types including dwelling houses, 2 to 3 storey low rise multiple dwellings (such as apartments and row houses) and dual occupancy in the 2 or 3 storey mix zone precinct, to provide housing diversity and a sensitive transition both to adjoining sites that contain dwelling houses and between busier roads or centres and lower density residential areas.
  1. (d)
    …
  1. (e)
    …
  1. (f)
    …
  1. (g)
    …

Note – Land in the Low-medium density residential zone is contained in either the Up to 3 storeys zone precinct, the two or three storey mix zone precinct or the 2 storey mix precinct.

Note - …

Note – Many sites in the two or three storey mix zone precinct of the Low-medium density residential zone are currently identified on the Traditional building character overlay map.  It is intended that over time the Traditional building character overlay map be reviewed, and that these sites be included in either the Character residential zone or be removed from the Traditional building character overlay map.  Until such time, these sites are afforded the same degree of protection and character design consideration as any other site within the Traditional building character overlay. (Emphasis added).

13.2   8.2.21 Traditional Building Character (Demolition) Overlay Code

8.2.21.2 Purpose

  1. (1)
    The purpose of the Traditional building character (demolition) overlay code is to:
  1. (a)
    Implement the policy direction in the Strategic framework, in particular:
  1. (i)
    Theme 2: Brisbane’s outstanding lifestyle and Element 2.1 – Brisbane’s identity;
  1. (ii)
    Theme 5: Brisbane’s CityShape and Element 5.5 – Brisbane’s Suburban Living Areas.
  1. (b)
    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.
  1. (2)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    Development protects residential buildings constructed in 1946 or earlier that give the areas in the Traditional building character overlay their traditional character and traditional building character.
  1. (b)
    …
  1. (c)
    …
  1. (d)
    …
  1. (e)
    …
  1. (f)
    …
  1. (g)
    …
  1. (h)
    …

Table 8.2.21.3 – Criteria for self-assessable and assessable development

Section B—Demolition or removal of a building constructed in 1946 or earlier

General criteria if not in the Latrobe and Given Terraces neighbourhood plan area

PO5

Development involves a building which:

  1. (a)
    does not represent traditional building character; or
  1. (b)
    is not capable of structural repair; or
  2. (c)
    does not contribute positively to the visual character of the street.

AO5

Development involves a building which:

  1. (a)
    has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; or
  1. (b)
    an engineering report prepared by a Registered Professional Engineer Queensland which certifies that the building is structurally unsound and not reasonably capable of being made structurally sound; or
  2. (c)
    if demolished will not result in the loss of traditional building character; or
  3. (d)
    is in a street that has no traditional character.

Note— For the purpose of this code, comparative analysis of an existing dwelling constructed in 1946 or earlier against the current timber framing standards is not considered to demonstrate 'structurally unsound'.

Additional criteria if a pre-1911 building

PO6

Development involves a building which is not capable of structural repair.

AO6

Development involves a building which a Registered Professional Engineer Queensland certifies is structurally unsound and not reasonably capable of being made structurally sound.

Note— For the purpose of this code, comparative analysis of an existing dwelling constructed in 1946 or earlier against the current timber framing standards is not considered to demonstrate 'structurally unsound'.

Additional criteria if in the Local character significance sub-category

PO7

Development involves a building which:

  1. (e)
    does not represent traditional building character;
  1. (f)
    is not capable of structural repair;
  2. (g)
    is not a building constructed in 1946 or earlier.

AO7.1

Development involves a building which has been substantially and irreversibly altered or does not have the appearance of being constructed in 1946 or earlier.

AO7.2

Development involves a building which:

  1. (h)
    has an appearance that cannot practically be reinstated to that of a building constructed pre-1911 or in 1946 or earlier; or

Note—In making a determination as to whether the appearance of a building constructed in 1946 or earlier can be reinstated, Council will require information to be submitted with any development application addressing the practicalities of a development:

  • opening up enclosed front and/or side verandahs;
  • removing enclosures under the front section of the building;
  • removing fibro, stucco or metal cladding to underlying weatherboards or chamferboards
  • replacing aluminium windows with timber windows;
  • reinstating verandah elements.
  1. (i)
    an engineering report prepared by a Registered Professional Engineer Queensland certifies is structurally unsound and not reasonably capable of being made structurally sound; or
  2. (j)
    is located in the Hawthorne centre precinct of the Bulimba district neighbourhood plan and is not a character non-residential building.

Additional criteria if in the Latrobe and Given Terraces neighbourhood plan area

PO8

Development involves a building which is not capable of being structurally repaired.

AO8

Development involves a building which a Registered Professional Engineer Queensland certifies is structurally unsound and not reasonably capable of being made structurally sound.

Note— For the purpose of this code, comparative analysis of an existing dwelling constructed in 1946 or earlier against the current timber framing standards is not considered to demonstrate 'structurally unsound'.

13.3   7.2.9.2 Ithaca District Neighbourhood Plan Code

7.2.9.2.1 Application

  1. (1)
    This code applies to assessing a material change of use, reconfiguring a lot, operational work or building work in the Ithaca district neighbourhood plan area if:
  1. (a)
    assessable development where this code is an applicable code identified in the assessment criteria column of a table of assessment for a neighbourhood plan (section 5.9); or
  2. (b)
    impact assessable development.
  1. (2)
    Land in the Ithaca district neighbourhood plan area is identified on the NPM-009.2 Ithaca district neighbourhood plan map and includes the following precincts:
  1. …
  2. …
  3. …
  4. …
  5. …
  6. …
  7. …
  8. Hillside character precinct (Ithaca district neighbourhood plan/NPP-008).

Note – Hillside areas are steeper residential areas containing traditional character housing and significant ridgelines.  Hillside character is derived from the relationship of buildings to their physical setting.  Traditional character housing built following an historical sub division pattern and located on well-treed hillsides results in the unique character of important visual significance in a local context. 

7.2.9.2.2 Purpose

  1. (1)
    The purpose of the Ithaca District Neighbourhood Plan Code is to provide finer grained planning at a local level for the Ithaca District Neighbourhood Plan Area. 
  1. (2)
    The purpose of the Ithaca District Neighbourhood Plan Code will be achieved through overall outcomes of the neighbourhood plan area.
  1. (3)
    The overall outcomes for the neighbourhood plan area are:
  1. (a)
    identify character housing and significant character streetscapes are maintained;
  1. (b)
    a mix of housing densities and types serve the needs of the community;
  1. (c)
    hillside character is retained and enhanced throughs sympathetic development that minimises visual impact within its visual catchment.
  1. (d)
    …
  1. (e)
    …
  1. (f)
    …
  1. (g)
    …
  1. (h)
    …
  1. (i)
    …
  1. (j)
    …
  1. (k)
    …
  1. (l)
    …
  1. (m)
    …

Joint Experts Report[13]

Points of Agreement between Expert

  1. [14]
    Relevantly, the experts agreed on the following:
  1. (a)
    The house is a pre-1946 residential timber house in a Low-medium Density Residential (LMR) Area and in a Demolition Controlled Precinct (DCP) within CP2000.
  1. (b)
    Performance Criterion P1 of the Demolition Code is the only relevant Performance Criterion.
  1. (c)
    The subject house is recognisably a pre-1946 building which expresses traditional ‘timber and tin’ building character as described by s 4 of the Demolition Code.
  1. (d)
    The subject house is accepted as appearing to be structurally sound and/or capable of structural repair and that no engineering report has been produced despite this view.
  1. (e)
    As to Acceptable Solution A1.4 of the Demolition Code, Wilden Street does not have ‘no traditional building character.  There is disagreement on the nature, extent and importance of the traditional building character it does possess.
  1. (f)
    As to Performance Criterion P1 of the Demolition Code, only the third dot point is applicable, that is, that the building must not contribute positively to the visual character of the street.
  1. (g)
    As to Acceptable Solution A1.3, only the second dot point is relevant, namely that “the demolition of a building will not result in a loss of:

Traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low-Medium Density Residential Area.”

  1. (h)
    As to the purpose of the Demolition Code, the first, fourth and ninth dot points are applicable, namely:

“The purpose of this Code is to:

  • Protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity;
  • …
  • …
  • Ensure the preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946;
  • …
  • …
  • …
  • …
  • In conjunction with the Residential Design – Character Code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in those precincts compliments the houses constructed in or prior to the end of 1946.
  1. (i)
    In relation to the streetscape referred to in the second anticipated dot point above, the relevant extent of the street in determining that streetscape is the whole of Wilden Street from Latrobe Terrance to Fernberg Road. (Emphasis added)
  1. (j)
    Distribution of pre-1946 and post-1946 buildings within Wilden Street is as set out in figures 2 to 6 of the JER.
  1. (k)
    Comparing CP2000 and CP2014 the differences between the two plans are relatively minor and of little or no consequence or relevance to this case, subject to the disagreement between experts as to the emphasis to be placed on zonings with respect to new development within the two plans.

Points of Disagreement between Experts

  1. [15]
    The following areas of disagreement were identified by the experts:

First area of disagreement

Whether demolition of the house will result in the loss of traditional ‘timber and tin’ building character within the DCP.

Mr O'Brien (Appellants)

15.1Mr O'Brien says demolition will not result in loss of tradition timber and tin building character because he considers the building is not in a demolition control precinct.  For this proposition, contrary to the above agreed issue,[14] he relies on the Elements of the City, paragraph 4.2.2.4 (maintaining character) earlier set out.[15]  Firstly, he says the house is not in a group of pre-1946 houses because the next four houses to its north, towards Latrobe Terrace and away from Fernberg Road, are either post-1946 houses or do not exhibit “distinctive” traditional architecture.  Further, the next two buildings to its south towards Fernberg Road are not pre-1946 houses.

15.2Next, Mr O'Brien says, again by reference to paragraph 4.2.2.4, if one expands the precinct to be the LMR zoned land in Wilden Street,[16] there are 10 properties, of which only four buildings exhibit “distinctive traditional architecture”. That would be the part of Wilden Street between LaTrobe Terrace to the north and Fernberg Road to the south of the House. Focusing on the reference in paragraph 4.2.2.4, that a precinct contains a minimum of three houses and at least two thirds of the precinct contains pre-1946 houses, Mr O'Brien says that six or seven pre 1946-houses would be required for that two thirds figure to be achieved. This approach delimits the relevant precinct to the LMR zoned land in that part of Wilden Street.

15.3Next, he says, even if the entire western side of Wilden Street, between LaTrobe Terrace to the north of Fernberg Road to the south, was considered to be in the precinct, only six houses of the total of 16 properties (two vacant lots) are pre-1946 houses, again falling short of the two thirds said to be required to qualify as a precinct. This delimits the precinct to the western side of Wilden Street.

15.4Finally, Mr O'Brien says that, accepting the subject house is mapped as being within a Demolition Control Precinct, mapping reveals some thousands of houses as being within the DCP, irrespective of whether or not they are pre or post-1946 houses.  Given that, even if a pre-1946 house is so mapped, it is not necessarily within a precinct contemplated by section 4.2.2.4 of the Elements of the City.  By inference, Mr O'Brien says, such a house would only be within a DCP if the indicia in paragraph 4.2.2.4 were satisfied.  It follows, in his opinion, the house should not be considered to be within a DCP.

Findings re: Mr O'Brien’s opinion of House not being within DCP

15.5.It is appropriate to deal at this stage with the above argument of Mr O'Brien that the subject house is not within a Demolition Control Precinct.  That is plainly wrong.  ‘Demolition Control Precinct’ is defined in CP2000[17] as – “Premises indicated on the Scheme Maps as Demolition Control Precincts.”  There is no issue that the property is so mapped. Significantly, Mr O'Brien conceded in evidence[18] that he was unaware of that definition when advancing the above opinion.

15.6.Further, Mr O'Brien’s reliance on paragraph 4.2.2.4 of Elements of the City, to conclude the house is not within a DCP, is misconceived. That paragraph is not a definitional section. Rather, it is simply part of the Strategic Plan of which the Elements of the City forms part. It explains considerations relevant to the identification for mapping purposes, of areas the Council has determined to categorise as within a DCP. 

Mr Kennedy (Council) - Acceptable Solution A1.3

15.7.Mr Kennedy’s opinion is that the demolition of the house would result in a loss of traditional ‘timber and tin’ building character within the DCP because:

  1. (a)
    the house is a traditional ‘timber and tin’ building within the DCP;
  1. (b)
    it contributes to the DCP’s traditional ‘timber and tin’ building character and its demolition must therefore result in an unacceptable loss of traditional ‘timber and tin’ building character within the DCP[19];
  1. (c)
    the house also contributes to Wilden Street’s traditional ‘timber and tin’ character which is made up of a precinct of more than two thirds pre-1945 ‘timber and tin character’ buildings.

15.8.In short, Mr Kennedy approached the issue on the basis that the whole of Wilden Street, being relevantly mapped within a DCP, is the relevant precinct. I agree with that view, which is consistent with the criteria adopted by the scheme authors at paragraph 4.2.2.4 above and is to be preferred to the view Mr O'Brien expressed.[20]

Second area of disagreement

Does the House contribute positively to the visual character of the street - Performance Criterion P1 (third dot point)

Mr O'Brien

15.9.Mr O'Brien says the house does not contribute in a significantly positive manner to the visual character of Wilden Street because:

  1. (a)
    The visual character of the LMR Zone within Wilden Street is created, not by the few traditional buildings which remain, but mainly by the new buildings which have been constructed.  In any event, most of the traditional buildings in that zone have been altered as to their building form and scale and, in some instances, by their materials and details.  (s 4 Demolition Code).
  1. (b)
    The views of the pre-1946 parts of the House from those parts of the street publicly frequented are restricted. That is to say, from within most parts of Wilden Street frequented by the public and by residents of the street, only very restricted views of the unaltered parts of the House are available. Thus, there is no issue that the only post-1946 addition to the House visible from the street is the front veranda.[21] This results from a combination of land form, retaining walls near the street alignment, vegetation within the road reserve and the direction of travel in the street. The House is most visible from the access driveway, which serves the four houses to the north which are located in an area with a distinctive character of modern residential architecture.
  1. (c)
    If the whole of Wilden Street was intended to form a comprehensive streetscape of pre-1946 houses, then no part of Wilden Street would have been included in the LMR residential area or LMR 2 zone.  CP2000 seeks to protect the traditional character of the area in the DCP as set out in the Strategic Plan, not those areas where the “timber and tin” houses are isolated from each other by modern detached houses or by modern multi-unit dwellings. I take the reference to DCP to refer to Mr O'Brien’s earlier reference – that is, either the 10 houses between Wilden Street between LaTrobe Terrace and Handy Street, or its entire western side between LaTrobe Terrace and Fernberg Road.

Mr Kennedy

15.10.Mr Kennedy considers the house does contribute positively to the visual character of Wilden Street because:

  1. (a)
    Wilden Street clearly expresses traditional timber and tin building character generated by the substantial majority of pre-1946 traditional timber and tin houses in the street.[22]
  1. (b)
    The post-1946 buildings in Wilden Street are relatively few in number and do not rob the street of its traditional timber and tin building character.
  1. (c)
    The House is a fine example of a traditional timber and tin house contributing positively to the traditional timber and tin character of the street.
  1. (d)
    The House relates visually to other traditional pre-1946 “timber and tin” (sic) houses in the street and forms part of the street’s traditional timber and tin building character.
  1. (e)
    The House is fairly uniform in height, scale and form with the majority of the street and sits within a visually-related street of pre-1946 houses and reasonably sympathetic post-1946 buildings.
  1. (f)
    As a result of Wilden Street’s topography, the House can be viewed from many parts of the street, and contributes to a streetscape predominantly composed of traditional pre-1946 timber and tin character buildings.
  1. (g)
    The post-1946 side veranda of the House is not considered a substantial alteration and is in keeping with the House’s style and character;
  1. (h)
    The additions to the rear of the House do not impact upon its pre-1946 appearance from the street.
  1. (i)
    The House, including the side veranda, is consistent in form, materials detailing with timber and tin houses constructed around the World War I era.

Third area of disagreement

Would demolition of the House protect the residential buildings that give the Residential Areas in the DCP their traditional character and amenity? Demolition Code Purpose[23]

Mr O'Brien

15.11.Mr O'Brien considers the demolition of the house would not conflict with the Purpose of the Demolition Code – which is to protect residential buildings that give the Residential Areas in the DCP their traditional character and amenity. He says that on the basis that the House does not contribute to the traditional character and amenity of those residential areas in a meaningful way because of its relative concealment from many locations in Wilden Street. As he earlier said, the House can hardly be seen because of the vegetation and terrain within the nearby road reserve.

Mr Kennedy

15.12.Mr Kennedy disagrees. He says that demolition would conflict with this purpose of the code because the House expresses traditional timber and tin building character and makes a positive contribution to the traditional timber and tin character in this residential area of the DCP.  Demolition would, in his view, remove rather than protect, a residential building that gives the area its traditional timber and tin character and amenity.

Fourth area of disagreement

Would demolition of the House ensure preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946? Demolition Code Purpose fourth dot point.

Mr O'Brien

15.13.Consistent with his views earlier set out, Mr O'Brien considers the important part of the relevant streetscape for consideration to be the western part of Wilden Street zoned LMR; that is, where the House is located and where the majority of buildings and the streetscape have largely been constructed and embellished subsequent to 1946.  The contribution of the House to the streetscape is much less important than that of most other buildings on the western side of Wilden Street, because of its concealment by vegetation on public and private land, the land form of roadside banks, shared access ways and the general terrain of Wilden Street and the nearby Handy and Brigalow Streets.  For these reasons, he says, the House does not form an important part of the streetscape and does not give the residential area its traditional character and amenity.

Mr Kennedy

15.14.Mr Kenney says that demolition of the House would conflict with this purpose of the code because:

  1. (a)
    The streetscape in Wilden Street was clearly established prior to 1946.
  1. (b)
    The House, along with other pre-1946 traditional timber and tin houses in the street, plays an important role in preserving the pre-1946 traditional timber and tin character evident in the streetscape.
  1. (c)
    The impact of post-1946 construction in Wilden Street is minimal and in no way lessens Wilden Street’s pre-1946 traditional timber and tin character streetscape, which is the purpose of the DCP under consideration seeks to preserve; and
  1. (d)
    Any analysis of the streetscape of Wilden Street should include all the street and not just parts of it.  That is consistent with the definition of Streetscape in CP2000 as – “the collective combination of urban form elements that constitute the view of a street and its public and private domains.” 

Fifth area of disagreement

Would demolition ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in those precincts compliments the houses constructed in or prior to the end of 1946 – Purpose of DCP dot point 9[24]

Mr O'Brien

15.15.On this issue, Mr O'Brien sees no conflict with this aspect of the Purpose of the DCP in the event of demolition because, in his view, the House should not be considered part of a precinct of houses constructed in or prior to 1946. Hence, its retention should not be required. To him, demolition would not preclude post demolition redevelopment complimentary to either pre-1946 houses in other precincts in Wilden Street or to the nearby houses of more modern appearance.

Mr Kennedy

15.16.Mr Kennedy sees demolition as conflicting with this purpose of the DCP because it would result in removal rather than retention of a pre-1946 house expressing traditional timber and tin building character which contributes positively to the visual character of the precinct.  Its demolition would result in a character of the precinct being eroded.

Sixth area of disagreement

Would demolition of the House reduce the hillside character of the Hillside Precinct within the Ithaca District Neighbourhood Plan? Section 3.8[25]

Mr O'Brien

15.17.Mr O'Brien’s view is that the hillside character of the relevant part of the Hillside Precinct is created by the combination of modern and traditional buildings, landform, vegetation, road services and road geometry and all other elements going to the creation of visual character and streetscape as defined.  That hillside character is not dependant on the continued existence of this one house, especially as the views of it are quite restricted.

Mr Kennedy

15.18.Mr Kennedy considers s 3.8 of the Ithaca District Local Plan is irrelevant as it relates to new development not demolition. Although not determinative of this appeal, I am inclined and agree that the focus in the section is preservation of the traditional character housing in the Hillside Character Precinct by sympathetic development in the area. Issues of demolition precede any such considerations of future development.

Seventh area of disagreement

Are there substantial differences between CP2000 and CP2014 as to matters relating to demolition of the House?

Mr O'Brien

15.19.  Mr O'Brien sees no substantial difference between the demolition code in CP2000 and the Traditional Building Character (demolition) Overlay Code in CP2014.  However, he says, there is a difference to be inferred having regard to the changes affecting development within the zones relevant to Wilden Street.  He points to the fact that the House is not part of a precinct of character houses as envisaged by the Strategic Plan. I have already repeated that view.

15.20. He points to the CP2014 scheme zoning having two Character Residential Zones: CR1 Character Residential (Character) and CR2 Character Residential (infill housing) together with three types of Low-medium Residential zoning: LMR1 Low-medium Density (two storey mix) LMR2 Low-Medium Density (two or three storey mix) and LMR3 Low-medium Density (up to three storeys). This, he says, evidences Council’s intention for redevelopment within the area.  The demolition of this house will facilitate the redevelopment to a higher density, which is envisaged by zoning of LMR2 Low-medium Density (two storey mix).

Mr Kennedy

15.21. Mr Kennedy sees no substantial differences between the demolition code in CP2000 and the Traditional Building Character (demolition) Overlay Code in CP2014 and other relevant matters relating to the demolition of the House.

Appellants’ Submissions

  1. [16]
    The Appellants say the proposed demolition complies with Acceptable Solution A1.3, and thereby complies with Performance Criterion P1.
  1. [17]
    This argument is predicated on the relevant area of the DCP, to be assessed under A1.3, being the LMR zoned land in Wilden Street and beyond. They rely on the decision in Leach v Brisbane City Council,[26] where the Council’s expert considered the relevant area for A1.3 to extend to five residential blocks and not merely the street in question.[27] As to the agreement between the present experts – that the relevant street for the purpose of the DCP is the whole of Wilden Street[28] - the Appellants say that the court should not be bound by that, and that the relevant street is not the whole of Wilden Street. They say “architects are not lawyers”.
  1. [18]
    From that, it is then said the only relevant evidence before the court on the issue of the extent of the street is that of Mr O'Brien, because Mr Kennedy’s evidence was confined to the impact of demolition on whole of Wilden Street. In short, only Mr O'Brien has given evidence as to the impact the proposed demolition will have on the traditional timber and tin building character in the relevant area they say A1.3 applies to.
  1. [19]
    Mr O'Brien’s evidence was that the proposed demolition would cause only a very, very slight loss of traditional timber and tin building character to the ‘pocket’ of properties the Appellants’ claim is the relevant area.[29] So, he says, A1.3 is complied with because, for demolition to be non-compliant, the House’s contribution to the visual character of this ‘pocket’ must be “significant”, and that that is not the case here. In support of this proposition, they rely on Lynch v Brisbane City Council,[30] where this court construed the word ‘loss’, in the context of Acceptable Solution A1.3, as meaning loss that is “significant, concerning or unacceptable”.[31]
  1. [20]
    In the Appellants’ view, it is a sufficient basis to dispose of this appeal that they have demonstrated the demolition complies with Acceptable Solution A1.3, and thereby with Performance Criterion P1.
  1. [21]
    A1.3 aside, they further say they comply with P1 in any event, because reference to “the visual character of the street” in P1 does not refer to the character of Wilden Street in its entirety, but that part of the street in the LMR zone. They submit the court should take into account Council’s forward planning intentions when construing P1 because that would accord with the ‘reasonable expectations’ of a resident within the area.
  1. [22]
    No authority was advanced for this proposition. However, they say their position is supported generally by the following statement in Kangaroo Point Residents Association v Brisbane City Council:[32]

The argument seems to start with the premise that Lockerbie Street is one in which a consistency of streetscape should be expected. That however, runs contrary to the zoning, designations and land uses in the area [sic]. These appeals do not concern a typical Residential ‘A’ street (for example) where development could be expected to be of a consistent size, bulk and scale. Instead, it is a street which is characterised by a mix of RDA designations and indeed a mix of zones (both Residential ‘B’ and Special Uses). The street is in an area which also features a mix of residential densities with greater densities towards the eastern and western extremities of the streets which link Leopard Street/River Terrace and Main Street.

This passage is cited as authority for the proposition that the planning provisions relating to Demolition under consideration must be interpreted in light of the overall planning intentions for a particular site.

  1. [23]
    So, the Appellants say, the effect of the demolition of the property should be assessed in light of the fact that Council split Wilden Street into two zones: the small cluster of properties that form part of the Low-Medium Density Residential Area (LMR Area), and the remainder of the street constituted by the Character Residential Area Area (CR Area). These two clusters are of different characters; the LMR comprising mostly post-1946 houses, and the CR Area comprising mostly pre-1946 houses.
  1. [24]
    Since the House falls within LMR, it does not positively contribute to the visual character of that part of the street. It is said the evidence of Mr O'Brien supports this conclusion; namely, that the traditional tin and timber features of the House can only be seen in extremely limited areas of the street.[33] Hence, in accordance with the meaning of ‘loss’ in Lynch, demolition is compliant with P1 because the loss would not be ‘significant’.
  1. [25]
    Finally, in the alternative, if it is found the ‘street’ for the purposes of P1 is the entirety of Wilden Street, the Appellants argue that the court should conclude that the street has more than one character. They make this submission mindful of comments in Leach v Brisbane City Council[34] that a street could not have more than one character for the purposes of assessment against the Demolition Code.[35] On this basis, it is contended that the House does not contribute positively to the visual character of the section of the street dominated by post-1946 houses.

Council’s Submissions

  1. [26]
    Council submits that the court would prefer the evidence of Mr Kennedy and conclude that the proposed demolition complies with neither Performance Criterion P1 nor Acceptable Solution A1.3.
  1. [27]
    As to A1.3, Council says demolition would be non-compliant. It points firstly to the agreed evidence in the JER that the House is “recognisably a pre-1946 house which expresses traditional timber and tin character.” It further relies on Mr Kennedy’s evidence that the House is one of a number in the street that possesses strong traditional timber and tin character.[36]
  1. [28]
    Council says the extent of the ‘loss’ of traditional timber and tin character required for non-compliance is not as high as the Appellants’ suggest; namely, that it be ‘significant, concerning or unacceptable’. Rather, it says, that while ‘loss’ does not mean loss however trivial, nor does it refer to a loss that would “amount to the straw that would break the camel’s back”.[37] The assessment of the loss is to be done consistently with the Purpose of the Demolition Code. Even accepting the Appellants’ interpretation, however, it says that the demolition will result in an ‘unacceptable’ loss of traditional tin and timber character within the DCP.
  1. [29]
    As to the Appellants’ argument that A1.3 should be interpreted by reference only to the ‘pocket’ of properties in LMR within the DCP, Council says that does not accord with the correct interpretation of the relevant planning scheme provisions. It says the only substantive question in this appeal is compliance with the Demolition Code, which does not ‘call up’ any consideration of which designated Area the land is located within.[38] The appeal does not raise questions of assessment against the entire planning scheme. If it did, in the sense that the underlying precinct area designation was relevant, it argues the Code would say so.
  1. [30]
    However, accepting the Appellants’ argument, Council says the Appellants would still not succeed. It relies on the evidence of Mr Kennedy that the dwelling still contributed as a traditional timber and tin house to the ‘pocket’ of houses which the Appellants say the assessment of A1.3 should be confined to.[39]
  1. [31]
    So far as P1 is concerned, Council says the Appellants’ reliance on the decision of Kangaroo Point Residents Association v Brisbane City Council[40] is misplaced for the following reasons:
  1. (a)
    The application in that case was made under the 1987 Town Planning Scheme, which had been prepared under the Local Government (Planning and Environment) Act 1990 (Qld).
  1. (b)
    The land in question was within a Special Uses (Church School Convent) zone under that scheme.
  1. (c)
    There was no dispute that demolition would occur as the application was not for building work, but for the rezoning.
  1. (d)
    CP2000 commenced after the decision to approve the application was made, its relevance to the appeals being only peripheral.
  1. (e)
    The Demolition Code, or its equivalent, was not in consideration.
  1. (f)
    At paragraph [17] of the decision, the court noted that at the time of the application, and as at the appeal, the Planning Scheme did not control the demolition of the building.
  1. [32]
    Finally, Council says Mr Kennedy’s evidence would be preferred, leading to the conclusion that the proposed demolition is non-compliant. Council specifically points to Mr Kennedy’s opinion that, visually, Wilden Street is of a traditional character[41] by virtue of “its position in the street, its prominence, the type of house it is and its visibility”.[42] It also relies on Mr Kennedy’s evidence that the House “very much” contributed positively to the visual character of the street “because of its position in the street, its prominence, the type of house it is and its visibility”.[43]

Consideration

  1. [33]
    In Unterweger v Brisbane City Council,[44] the principles relevant to assessments against the Demolition Code were usefully summarised as follows:
  1. In cases where the determining features are such concepts as building character, tradition, style and aesthetics, the Court must bear firmly in mind that it must act on the evidence and not its own opinions, and that the view is not evidence, but merely an aid to the understanding of the evidence.[45]
  1. The Court should not be overly influenced by the fact that neither the street nor the dwelling are pristine.[46]
  1. The Demolition Code does not require a pre-1946 house to have architectural merit,[47] or that it be unique or ‘even good’.[48]
  1. The Court is not to allow aesthetic considerations to intrude in the assessment, as pre-1946 dwellings that are ‘ugly’ are to be assessed only against the factors outlined in the Demolition Code.[49]
  1. The explanation in the Demolition Code of the term ‘traditional building character’ and its various elements is not a definition; it is merely an explanation, which speaks in generalities.[50]
  1. What matters most is the presentation of the house to the street, not what may have occurred at the rear.[51]
  1. It is irrelevant that a site might be suitable for development for broader reasons and is capable of being sympathetically redeveloped.[52]
  1. It is relevant to enquire whether the street in question has been ‘robbed’ of the traditional character by redevelopment, such that traditional building character has been lost.[53]
  1. [34]
    Where the evidence of Mr Kennedy’s and Mr O'Brien’s conflict, I prefer that of Mr Kennedy. It seems to me that Mr O'Brien has fallen into error in several respects. Firstly, his view that the subject house was not within a demolition control precinct when, as he later conceded, it is clearly so mapped. He was aware of the mapping at the time of the JER but was unaware of the definition of a DCP as those areas so mapped. He adopted what I consider is an incorrect approach determining that the House, while mapped as within a DCP, was not in fact within a DCP because the relevant criteria in CP2000, referred to above,[54] were not met. 
  1. [35]
    I do not accept the Appellants’ argument that the relevant DCP area for consideration of A1.3 comprises the ‘pocket’ of properties within the LMR Area extending beyond Wilden Street. The street in question controls the extent to which the LMR Area is relevant; not the other way round. The Appellants’ construction would ignore the contribution of traditional timber and tin character the subject house may make to the whole of Wilden Street. This would be at odds with Performance Criterion P1, the focus of which is the street.
  1. [36]
    The Appellants’ reliance on Leach to support their argument is misplaced. In Leach, the court allowed an appeal against Council’s refusal of a preliminary approval for building work for demolition of two pre-1946 houses. The houses were in the LMR Area as well as in a DCP. At issue was whether the proposed demolition complied with Performance Criterion P1. The court held it did, finding, firstly:

“The street has in my view moved well away from the traditional character it manifested in 1946. Today its character is of a modern nature notwithstanding there remain a small number of houses of a traditional building character two of which are the subject houses.”[55]

 It was further said:

“Consistent with my findings as to the modern nature of the character of Orleigh Street I accept Mr Macdonald’s evidence in preference to Mr Veal’s and agree that the subject houses make no positive contribution to the visual character of Orleigh Street.”[56]

  1. [37]
    It is true that the Council’s expert in Leach was of the opinion that the relevant DCP area for the purposes of A1.3 was 5 residential blocks, and not merely the street in question. However, the court did not make such a finding. As the Appellants correctly acknowledged in their submissions, and as is clear from the above passages, the decision in Leach centred on the interpretation of ‘the street’ for the purposes of assessment against Performance Criterion P1, rather than the precinct.
  1. [38]
    Nor do I accept that the ‘visual character of the street’ for the purpose of P1 is to be split into two, to reflect the zoning in Wilden Street. It is true that in Leach this court accepted that in appropriate circumstances, a particular street for the purposes of a DCP may be merely a section of it.[57] This is not such a case.
  1. [39]
    Mr O'Brien agreed with Mr Kennedy in the JER that, for the purpose of P1, the street was the whole of Wilden Street - being Latrobe Terrace to Fernberg Road.[58]  I accept that joint expert conclusion.  The two dot points in A1.3 are not to be read as qualifying the extent of the street.[59]  They simply describe two different contributors to the “traditional building character” within the DCP; namely, “traditional building character” and “traditional ‘timber and tin’ building character”. Both of those terms are explained in paragraph 4 of the Demolition Code – Assessment Guidance, which gives an explanation of traditional building character.  Nowhere is there to be found any support for the interpretation that either of the dot points in A1.3 somehow redefines the extent of the street for the purposes of satisfying P1.  They are merely descriptive of the nature of the contribution to the traditional building character within the zones identified.
  1. [40]
    I consider the Appellants have conflated the concepts of zoning and redevelopment provisions of CP2000 and CP2014 with the provisions relevant to demolition, the latter of which are the sole provisions under consideration.  The subject application is to be assessed against the Demolition Code, not zoning or redevelopment provisions.  It is irrelevant to the demolition issue what is proposed to be constructed to replace the house in the event of demolition. I accept the Council’s submission[60] that the Appellants’ reliance on the remarks of Skoien DCJ in Kangaroo Point Residents Association v Brisbane City Council is misplaced and does not change this conclusion. The Council’s forward planning intentions reflected in zoning are not to guide the interpretation of the provisions except insofar as those intentions are explicitly embodied in those provisions.
  1. [41]
    The Appellants endeavoured, in their final written submissions, to distance themselves from Mr O'Brien’s opinion that the whole of Wilden Street was the extent of the street for the purpose of P1, by saying the experts were, in effect, not the ones to decide that issue. I have already said that, on all the evidence, I accept the joint experts’ opinion on that issue. It follows that the street, the visual character of which is under consideration, is the whole of Wilden Street, irrespective of different zoning of parts of that street.
  1. [42]
    The next area where I consider the Appellants fell into error relates to the relationship between Acceptable Solution A1.3 and Performance Criterion P1. It seems to me they lost sight of the fact that A1.3 is but one way of satisfying the agreed Performance Criterion P1 (third dot point); namely, that the house must not contribute positively to the visual character of Wilden Street. That is the outcome A1.3 must achieve if, as here, it is relied upon, rather than some alternate solution which would satisfy P1.[61]
  1. [43]
    As to their reliance on the lack of visual prominence of the House, much is made of its position and limited visibility from some points. The argument was, in effect, that the house is hidden and did not contribute to the visual character of Wilden Street. I disagree. The assessment is not to be undertaken from a fixed point, but fluidly, based on the perspective of one moving along the street.[62] It is trite to say that a particular house in most streets may have limited visibility from some points, but not from others. This House can be seen from numerous positions in the street. Indeed, the evidence of both experts was quite similar in this regard: Mr Kennedy gave evidence that the topography of the street was such that the House could be viewed from many parts of the street,[63] while Mr O'Brien gave evidence that the topography made the House quite noticeable from several locations,[64] even that it was prominent.[65] I accept those conclusions. As one moves along the street, it is clear to me that the House contributes quite positively to the traditional character of Wilden Street.
  1. [44]
    As to those houses in Wilden Street of more modern appearance, I agree with Mr Kennedy that they do not rob Wilden Street of its traditional ‘timber and tin’ building character. The subject house continues to make a positive contribution to the visual character of Wilden Street. Further, I do not consider the alterations that were made to the House change this conclusion. I note that Mr Kennedy[66] and Mr O'Brien[67] both considered, for instance, that the verandah alterations to the House either added to or reinforced the House’s pre-1946 character. I agree with those conclusions. I also agree with Mr Kennedy’s view[68] that the carport does not detract from the traditional timber and tin character of the House.
  1. [45]
    I find that the demolition would conflict with the Purpose, Performance Criterion P1 and Acceptable Solution A1.3 of the Demolition Code when properly construed in the context of CP2000 as a whole, as the Council particularised.[69]
  1. [46]
    The final issue is whether, despite the conflict, there are sufficient grounds to approve the development application. In Weightman v Gold Coast City Council & Anor,[70] the Court of Appeal said the following in relation to whether there are sufficient circumstances to justify the development in spite of a conflict[71]:

“The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of Gold Coast, is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only. In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s.4.4(5A)(b) of the P&E Act, the decision-maker should:-

1) examine the nature and extent of the conflict;

2) determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;

3) determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.

The first task required of the decision-maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in the nature or indeed anywhere on the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.”

  1. [47]
    Whereas in their Further Grounds of Appeal the Appellants gave grounds for approval in the event of a conflict with the scheme, they did not address that issue in their final submissions. Those grounds were:
  1. The development application would allow for much needed and anticipated infill development within the local government area.
  2. The development application would allow for a logical extension of the pattern of development established by the four houses next to the subject house, and thereby provide a more uniform streetscape in terms of character, spacing and stepping than that currently existing.
  1. [48]
    I regard the conflict a significant one. I do not consider these grounds sufficient to justify approval.

Orders

  1. [49]
    The appeal will be dismissed. The question of costs is reserved, with the parties to make any submissions in that regard within 14 days of this judgment.

Footnotes

[1]CP2000 chapter 3, s 2.5.1 p 5.

[2]Exhibit 3, p 57 - CP2000 chapter 3 p 69, para 2.

[3]Exhibit 5 (JER), [2], [4] and [8].

[4]Ibid [7]. 

[5]Exhibit 8.

[6]Exhibit 1.

[7]Exhibit 2. 

[8]Exhibit 3, p 12.

[9]Exhibit 3, pp 16-17.

[10]Exhibit 3, pp 25-26.

[11]Exhibit 3, p 48.

[12]Exhibit 3, pp 57-59.

[13]Exhibit 5.

[14]Judgment at [14](a).

[15]Judgment at [12], 12.1.

[16]See Exhibit 5, Figure 1.

[17]Exhibit 9, Chapter 3, p 88.

[18]T1.30.19 9-27.

[19]See Exhibit 9, para 17.2(b). See also T1.44.27, where Mr Kennedy said the loss referred to in the JER should have been an “unacceptable” loss.

[20]See Exhibit 5 (JER), Figure 2, which shows that two-thirds of the houses on Wilden Street are pre-1946.

[21]See the photographs comprising Exhibit 7.

[22]See the JER (Exhibit 5), Table 1, figures 1-6. 

[23]Exhibit 3, p 57 (CP2000 chapter 5 page 69 para 3).

[24]Exhibit 3, p 57.

[25]Exhibit 4, p 48.

[26][2011] QPEC 55.

[27]Ibid [12].

[28]See Judgment at [14.1] above.

[29]T1-35.36-41.

[30][2011] QPELR 314.

[31]Ibid [13]-[15].

[32][2002] QPELR 75 at [31].

[33]T1-35.1-41.

[34][2011] QPEC 55.

[35]Ibid [34].

[36]T1-43.9-13.

[37]Citing Unterweger v Brisbane City Council [2012] QPELR 335 at [29]-[30] per Rackemann DCJ.

[38]Other than, of course, in respect of whether the traditional character is confined to ‘timber and tin’ – a matter necessarily arising in this case under Acceptable Solution A1.3.

[39]T1-44.36-42, T1-45.14-25.

[40][2002] QPELR 75.

[41]T1-45.42.-43.

[42]T1-46.1-5.

[43]T1-46.1-5. See also T1-44.19-30 in this regard.

[44][2012] QPELR 335 at [10].

[45]Lonie v Brisbane City Council [1998] QPELR 209 at 210.

[46]Ibid 211.

[47]Armstrong v Brisbane City Council [2003] QPELR 475 at [17].

[48]Lynch v Brisbane City Council [2011] QPELR 314 at [28].

[49]Litbit Pty Ltd v Brisbane City Council [2009] QPELR 197 at [18].

[50]Razia Developments Pty Ltd v Brisbane City Council [2005] QPELR 205 at [18].

[51]Lynch v Brisbane City Council [2011] QPELR 314 at [9].

[52]Berlese v Brisbane City Council [2003] QPELR 330 at [16].

[53]Ibid [14].

[54]Elements of the City paragraph 4.2.2.4 – see Judgment at [12], 12.1. 

[55]Leach & Ors v Brisbane City Council [2011] QPELR 609 at [35].

[56]Ibid [41].

[57][2011] QPELR 609 at [33].

[58]Exhibit 5, [13].

[59]Leach & Ors v Brisbane City Council [2011] QPELR 609 at [20].

[60]Judgment at [31].

[61]Exhibit 3, p 48 (CP2000 Chapter 5, Page 3, Para 1.1).

[62]Lonie v Brisbane City Council [1998] QPELR 206 at 212.

[63]Exhibit 5, para 18.2(f).

[64]T1-24.37-43.

[65]T1-25.1-11.

[66]T1-39.25-26.

[67]T1-15.32-42, T1-16.11-13.

[68]T1-40.4-5.

[69]Judgment at [8].

[70][2002] 121 LGERA 161.

[71]Ibid 173.

Close

Editorial Notes

  • Published Case Name:

    Thurecht & Anor v Brisbane City Council

  • Shortened Case Name:

    Thurecht v Brisbane City Council

  • MNC:

    [2015] QPEC 19

  • Court:

    QPEC

  • Judge(s):

    Searles DCJ

  • Date:

    15 May 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Armstrong v Brisbane City Council [2003] QPELR 475
2 citations
Jump To
Cite 1 - [2003] QPELR 475
Cite 2 - [2003] QPELR 475
Berlese v Brisbane City Council [2003] QPELR 330
3 citations
Jump To
Cite 1 - [2003] QPELR 330
Cite 2 - [2003] QPELR 330
Cite 3 - [2003] QPELR 330
Kangaroo Point Residents Association v Brisbane City Council [2002] QPELR 75
3 citations
Jump To
Cite 1 - [2002] QPELR 75
Cite 2 - [2002] QPELR 75
Cite 3 - [2002] QPELR 75
Leach v Brisbane City Council [2011] QPEC 55
4 citations
Jump To
Cite 1 - [2011] QPEC 55
Cite 2 - [2011] QPEC 55
Cite 3 - [2011] QPEC 55
Cite 4 - [2011] QPEC 55
Leach v Brisbane City Council [2011] QPELR 609
5 citations
Jump To
Cite 1 - [2011] QPELR 609
Cite 2 - [2011] QPELR 609
Cite 3 - [2011] QPELR 609
Cite 4 - [2011] QPELR 609
Cite 5 - [2011] QPELR 609
Litbit Pty Ltd v Brisbane City Council [2009] QPELR 197
2 citations
Jump To
Cite 1 - [2009] QPELR 197
Cite 2 - [2009] QPELR 197
Lonie v Brisbane City Council (1998) QPELR 209
3 citations
Jump To
Cite 1 - (1998) QPELR 209
Cite 2 - (1998) QPELR 209
Cite 3 - (1998) QPELR 209
Lonie v Brisbane City Council & Ors (1998) QPELR 206
1 citation
Jump To
Cite 1 - (1998) QPELR 206
Lynch v Brisbane City Council [2011] QPELR 314
5 citations
Jump To
Cite 1 - [2011] QPELR 314
Cite 2 - [2011] QPELR 314
Cite 3 - [2011] QPELR 314
Cite 4 - [2011] QPELR 314
Cite 5 - [2011] QPELR 314
Razia Developments Pty Ltd v Brisbane City Council [2005] QPELR 205
2 citations
Jump To
Cite 1 - [2005] QPELR 205
Cite 2 - [2005] QPELR 205
Unterweger v Brisbane City Council [2012] QPELR 335
3 citations
Jump To
Cite 1 - [2012] QPELR 335
Cite 2 - [2012] QPELR 335
Cite 3 - [2012] QPELR 335
Weightman v Gold Coast City Council (2002) 121 LGERA 161
3 citations
Jump To
Cite 1 - (2002) 121 LGERA 161
Cite 2 - (2002) 121 LGERA 161
Cite 3 - (2002) 121 LGERA 161

Cases Citing

Case NameFull CitationFrequency
Bilalis v Brisbane City Council [2017] QPEC 422 citations
Gerhardt v McNeil [2016] QCA 207 1 citation
Lucas v Brisbane City Council [2015] QPEC 252 citations
Mariott v Brisbane City Council [2015] QPEC 451 citation
Thurecht v Brisbane City Council (No 2) [2015] QPEC 351 citation
1

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