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CITE

Unreported Judgment

Ken Drew Town Planning Pty Ltd v Brisbane City Council[2016] QPEC 62Bowskill DCJ
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Ken Drew Town Planning Pty Ltd v Brisbane City Council[2016] QPEC 62

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62
PARTIES:	KEN DREW TOWN PLANNING PTY LTD Appellant v BRISBANE CITY COUNCIL Respondent
FILE NO/S:	1161/16
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeal
DELIVERED ON:	14 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	14 November 2016
JUDGE:	Bowskill QC DCJ
ORDER:	In so far as the appeal concerns the demolition of the subject house, the appeal is allowed. I will hear the parties as to the appropriate form of order, addressing both that part of the appeal subject of these reasons, and the balance of the appeal, as well as in relation to costs.
CATCHWORDS:	PLANNING AND ENVIRONMENT – Appeal against Council’s decision refusing approval for demolition of a pre-1947 house on Old Cleveland Road in Coorparoo – Whether the proposed demolition complies with the demolition code – Whether demolition of the house would result in meaningful or significant loss of traditional building character – Whether the house contributes positively to the visual character of the relevant street protected by the demolition code Sustainable Planning Act 2009 (Qld), ss 313 and 326 Guiney v Brisbane City Council [2016] QPELR 575 Lonie v Brisbane City Council [1998] QPELR 209 Kanesamoorthy v Brisbane City Council [2016] QPEC 42 Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147 Marriott v Brisbane City Council [2015] QPELR 910 Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223 Unterweger v Brisbane City Council [2012] QPELR 335 Wallace v Brisbane City Council [2012] QPELR 689
COUNSEL:	M Batty for the Appellant B Job for the Respondent
SOLICITORS:	HWS Lawyers for the Appellant Brisbane City Legal Practice for the Respondent

Introduction

[1]
Ken Drew Town Planning Pty Ltd (the appellant) applied to the Brisbane City Council for development approval on behalf of the owner of land at 392-396 Old Cleveland Road, Coorparoo. The application sought approval for the demolition of a pre-1947 house on part of that land (392 Old Cleveland Road) and for a material change of use of the land, to permit a multiple unit dwelling development. The Council refused the application. The appellant appeals to this Court, against the Council’s refusal of the application.
[2]
The only issue to be determined is whether or not the appeal should be allowed, in so far as it concerns the demolition of the pre-1947 house. Counsel for the appellant informed the Court at the commencement of the hearing that the appellant does not oppose an order dismissing the appeal, in so far as it concerns the multiple unit dwelling component of the proposed development.^[1]
[3]
The house is a Queenslander style house, built before 1947, and only slightly modified since (by enclosure of the verandah). It is within the character residential zone under Brisbane City Plan 2014, covered by the traditional building character overlay, and therefore subject to the applicable demolition code. Character buildings built in 1946 or earlier are protected by the demolition code because of their contribution to the distinctive traditional character of certain parts of Brisbane, and their link with Brisbane’s history. But that protection is not absolute. To succeed in this appeal, the appellant needs to show the demolition complies with one or more of the relevant performance and acceptable outcomes under the demolition code, that is, that the house:
1. (a)
  is a building which, if demolished, will not result in the loss of traditional building character (AO5(c)); or
2. (b)
  is in a street that has no traditional character (AO5(d)); or
3. (c)
  is a building which does not contribute positively to the visual character of the street (PO5(c)).
[4]
Consideration of these matters raises the following issues:
1. (a)
  what is the visual character of the part of the street comprising the relevant area of assessment for the purposes of AO5(c), AO5(d) and PO5(c)?
2. (b)
  would demolition of the house result in meaningful or significant loss of traditional building character?
3. (c)
  is the house in a street that has no traditional character?
4. (d)
  does the house contribute positively to the visual character of the street which is protected by the demolition code?
[5]
I have decided that the appeal should be allowed, so that the house can be demolished. The present visual character of the relevant part of Old Cleveland Road has changed considerably as a result of post-1946 development. Although there is still some traditional building character in part of the relevant area of assessment, the subject house is, objectively, isolated from that, being surrounded by, and opposite, multiple unit dwellings, and a Cheesecake Shop, such that the demolition of it will not result in meaningful or significant loss of traditional building character from that part of the Road; nor does it contribute positively, in a meaningful way, to the remaining traditional visual character of the Road.
[6]
In explaining my reasons for this decision, first, I will refer to relevant parts of the planning scheme and the demolition code, which provide the framework for the decision; then briefly outline the relevant factual context of the house and its place in Old Cleveland Road, before addressing the issues identified.

The planning scheme and the demolition code

[7]
Under the Sustainable Planning Act 2009 and the relevant planning scheme, Brisbane City Plan 2014, the proposed demolition is development which is code assessable,^[2] so it must comply with the demolition code (unless there are public interest reasons justifying approval despite conflict with the code, which the appellant did not contend there were).
[8]
The demolition code’s purpose is to implement aspects of the strategic framework under the planning scheme, for example:
1. (a)
  that “traditional character suburbs”, with character buildings built in 1946 or before, are part of Brisbane’s distinctive suburban identity; and
2. (b)
  that “character housing provides a link with Brisbane’s history and helps to reinforce a strong sense of place and community identity”,

by providing for assessment of the suitability of demolition of those character buildings.^[3]

[9]
The purpose of the code may be achieved through a number of “overall outcomes”, including:

“(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.

…

(d)
Development protects a building constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier.”^[4]

[10]
In this context, “traditional character” and “traditional building character” refer to a combination of elements, including building form and roof styles, detailing and materials, scale and setting.^[5]
[11]
The demolition code contains performance outcomes (PO) and acceptable outcomes (AO), by reference to which development is to be assessed (table 8.2.21.3). It was agreed that only PO5(c), AO5(c) and (d) are relevant. They are referred to in [3] above.
[12]
The acceptable outcomes describe the preferred way of achieving the performance outcome. It was not in issue that each of PO5(c), AO5(c) and AO5(d) are alternatives. If any of them are met, then the purpose and overall outcomes are complied with, and, in turn, the code is complied with.^[6]
[13]
The parties also agreed, as a matter of construction, that even if none of the acceptable or performance outcomes are complied with, if all the relevant purpose and overall outcomes of the code are complied with (which were agreed to be those set out in s 8.2.21.2(2)(a) and (d)), the code is complied with.^[7] It has not been necessary for me to consider this, given the conclusion I have reached in relation to AO5(c) and PO5(c).
[14]
In Unterweger v Brisbane City Council [2012] QPELR 335 at [10] Rackemann DCJ observed that, relevantly to this case:
1. (a)
  in cases where the determining features are such concepts as building character, the Court must act on the evidence and not its own opinions;
2. (b)
  it is not necessary that the street or the dwelling are “pristine” in order for demolition to be refused;
3. (c)
  there is no requirement that a pre-1947 building be “remarkable”, “unique” or “even good”; and
4. (d)
  it is relevant to enquire whether the street in question has been robbed of its traditional character by the extent of redevelopment.
[15]
The demolition code is to be construed broadly and in a common sense way which best achieves its purpose and objects. Whether or not a conflict exists is to be determined by a consideration of the relevant provisions of the scheme in the light of all the relevant facts.^[8]

The relevant facts – the house, in its context in Old Cleveland Road

[16]
It is necessary to consider the house as it presently stands, in its context in Old Cleveland Road.^[9] In considering the issues, I was assisted by the evidence of heritage architects called by each party, Mr Malcolm Elliott (for the appellant) and Mr Michael Kennedy (for the Council). The experts prepared a joint report (exhibit 4), and both provided individual statements of evidence (exhibits 5 and 6, respectively). To aid in understanding the evidence, I had the benefit of a view of the house and the relevant part of Old Cleveland Road.
[17]
As described by the experts in the joint report at [19], the house is “a high-set, timber-framed and weatherboard-clad house supported on stumps with a corrugated metal roof in a gabled form capped with a longitudinal ridge”, which is entirely consistent with the “timber and tin” traditional building character referred to in the planning scheme. There was no dispute about this. The house was described as having “architectural simplicity”, being less elaborate than others on the relevant section of the Road. Although Mr Kennedy suggested this added to its character, it seems to me, having regard, among other things, to the principles summarised in Unterweger (referred to in paragraph [14] above), that this is really a neutral factor.
[18]
Old Cleveland Road is a long road, extending from Capalaba in the east, through Coorparoo, and ending at Greenslopes in the west. For the purposes of this appeal, the experts were agreed that the relevant area of assessment ought to be limited to that part of Old Cleveland Road, in Coorparoo, which runs from French Street to Burke Street, on the northern side (including one house on the eastern side of Burke Street), and from numbers 373 to 407 on the southern side.^[10] I accept that as an appropriate approach.

What is the visual character of the relevant part of Old Cleveland Road?

[19]
The character of the relevant part of Old Cleveland Road must be assessed as a whole, rather than by reference to only some segment or segments of it,^[11] whether that is the segment covered by the overlay, particular houses or groups of houses in the Road, or otherwise.^[12]
[20]
The visual character of the street is based on the perception of an average person walking along the street and looking about, “with a perception which falls somewhere between that of a PhD in Architectural History on the one hand and that of a Philistine on the other”.^[13] As posed by Skoien SJDC in Lonie v Brisbane City Council, the question is, would such a person think, of this section of Old Cleveland Road, “this is a pretty typical old Brisbane Street”?
[21]
In that context, although it might be said that the evidence of architects such as Mr Kennedy and Mr Elliot is not strictly speaking admissible as expert opinion (the question being what the average person walking along the street would think; not what an architect with specialised knowledge, training and experience might think), I proceed on the basis explained by Wilson SC DCJ^[14] (as his Honour then was) that:

“Ultimately, their views are of assistance only to the extent that they disclose a reasoning process which helps the Court to move from the primary evidence (what is actually located in the relevant part of [the Road]) to an ultimate conclusion as to whether demolition has an effect which falls short of meeting the [acceptable solution] – ie, in truth, that there will be a loss of traditional building character.”

[22]
The evidence about the visual character of the relevant portion of Old Cleveland Road is contained in historical and contemporary aerial photographs and plans, photographs of how the Road, and the houses and buildings in the Road, currently appear, together with the experts’ analysis of these.
[23]
By reference to a marked up current aerial photograph of the relevant area,^[15] and analysis of images on both sides of this part of Old Cleveland Road, Mr Elliott expresses the view that the southern side of Old Cleveland Road has been almost entirely changed from its original dwelling configuration of a row of eight traditional houses (as shown in the 1946 aerial photograph) into a row of five multi-unit dwellings of either two or three storeys, a large scale commercial building (Vision Australia) and a single pre-1947 house on the corner of Old Cleveland Road and Leicester Street, which has been converted to a medical centre.^[16] Mr Kennedy agrees that the southern side of the Road has no remaining traditional character.^[17]
[24]
Mr Elliott describes the northern side of the Road as having a “transitional and mixed streetscape”, containing a high proportion of multi-unit dwellings, a post-1947 shop (the Cheesecake Shop), a scattered distribution of pre-1947 houses, including the subject house, and including a traditional house adapted for use as a radio station.^[18] Mr Kennedy, in contrast, considers that the visual character on the northern side of the road is predominantly traditional.^[19]
[25]
By reference to photographs at pp 5-9 of his individual report, Mr Elliott notes the following about the houses and buildings on each side of the Road (in relation to which, I have added relevant aspects of Mr Kennedy’s observations):
1. (a)
  Beginning with the northern side of the Road, the subject house is flanked to the east by two post-1947 multi-unit dwelling developments (a single storey block of units Mr Kennedy thinks may have been constructed in the 1980s, at number 396^[20]; and a two storey block of units, which Mr Kennedy thinks was constructed in the 1990s, at number 398).^[21]
2. (b)
  Continuing east, to the corner of Old Cleveland Road and Burke Street, is a Cheesecake Shop, housed in a completely renovated building which fronts Old Cleveland Road, at the rear of which there is a residence which is a pre-1947 building, and which Mr Kennedy describes as displaying traditional character.^[22] Although Mr Kennedy says that the view of the roof of this house that you can see behind the Cheesecake Shop contributes to the “traditional character streetscape” of Old Cleveland Road, I do not accept this, given that the imposing feature of this property is the dark green, square, modern shop housing the Cheesecake Shop, with its familiar and generic signage associated with that brand – as opposed to any traditional character. I prefer Mr Elliott’s opinion that this building does not contribute to a traditional character streetscape in Old Cleveland Road.^[23]
3. (c)
  Continuing east, across Burke Street, marking the end of the agreed area of assessment, is a pre-1947 house which sits on the other corner of Old Cleveland Road and Burke Street. Mr Kennedy accepted that although this house makes a contribution to the traditional character in Burke Street, you cannot see much of it at all on Old Cleveland Road (due to the house facing Burke Street, and the vegetation on the Old Cleveland Road side of the property), and it does not make an important contribution to the subject house in terms of traditional character.^[24] Likewise, Mr Elliott considered it makes only a very minor contribution, in terms of traditional building character, to Old Cleveland Road.^[25]
4. (d)
  Heading west of the subject house, up the northern side of Old Cleveland Road, the house is flanked by another two storey block of units, which Mr Kennedy describes as a typical 1970s two storey block of units, at number 388.^[26]
5. (e)
  The next property, at number 384, is a pre-1947 house, to which there was added in 1996 a “performance studio” on the eastern side, being the premises occupied by the Music Broadcasting Society of Queensland, which operates the radio station 4MBS. Although the experts agreed the house itself displays traditional building character, it was also acknowledged that the view of this house from Old Cleveland Road is restricted because of the high masonry fence in front, and the vegetation surrounding it (this is apparent in the photographs in exhibit 6 at pp 9-10).^[27] It is also affected by the modern appearance of the studio constructed directly adjacent, and of a similar size, to it.
6. (f)
  Continuing east, the next two properties, at numbers 376 and 380, are both pre-1947 houses.^[28]
7. (g)
  Next to number 376, there is a large, 1970s two storey unit building at number 372.^[29] Mr Elliott drew attention to the substantial separation distance between the large block of units at number 372, and the house at number 376, which makes visible another recently completed multi-unit dwelling on the street behind, Kitchener Street.
8. (h)
  The next three houses, before reaching French Street, are all pre-1947 houses (at numbers 360, 364 and 368), which Mr Elliot describes as presenting a cluster of traditional building character, at this end of the portion of Old Cleveland Road.^[30]
9. (i)
  Then moving to the other (southern) side of the Road, the first part of the relevant portion of the road (at the western end) is dominated by the large commercial “Vision Australia” building.^[31]
10. (j)
  Heading east, there is then a row of multiple unit dwelling buildings of varied eras, at numbers 377-391.^[32]
11. (k)
  On the corner of Old Cleveland Road and Leicester Street, there is a large pre-1947 house, which has been modified for use as a medical centre by various health professionals.^[33]
12. (l)
  At the eastern end of the relevant portion, on the southern side, at number 407, there is another 1970s apartment building.^[34]
[26]
Addressing AO5(d), Mr Elliott’s opinion was that the relevant portion of Old Cleveland Road does not have traditional character, because there has been a significant loss of traditional building character since 1946 and “the vast majority of this transition has resulted in the increased representation of mid-scale multi-unit dwelling development in the streetscape”.^[35] As explained further in his oral evidence, although there are some traditional character houses in the relevant portion of Old Cleveland Road, Mr Elliott’s opinion is that those remaining houses are not such as to enable that part of the Road to be (I interpolate, realistically or reasonably^[36]) described as having traditional character overall. When pressed, in cross-examination, Mr Elliott agreed that the expression of traditional character was stronger at the western end of the northern side of the Road; essentially non-existent on the southern side of the Road and significantly eroded or diluted at the eastern end of the northern side of the road, where the subject house is located – but overall he agreed with the proposition that the character of the Road is mixed, with the presence of some character houses, amongst a proliferation of unit blocks and commercial buildings.^[37]
[27]
In this regard, Mr Elliott notes, by reference to the 1946 aerial photograph (figure 1 on p 3 of the JER) that at that time, there was a predominance of traditional housing in Old Cleveland Road, with the relevant section of the Road having 20 pre-1947 houses, each being single dwellings on their respective lots, and a pair of small corner shops at no. 402 (where the Cheesecake Shop is now), and a large open area, being the grounds of the Queen Alexandra Home (where the Vision Australia building is now). In contrast, the aerial photograph taken in 2012 (figure 2 on p 3 of the JER) shows that only eight pre-1947 houses remain, on the northern side of the Road, and only one such house remains on the southern side (which now accommodates the medical centre at the corner of Old Cleveland Road and Leicester Street).^[38]
[28]
Mr Elliott notes that “the substantial depletion of traditional building character in this streetscape has been balanced by the corresponding proliferation of post-1946 multi-unit dwellings ranging from single storey to four storeys in height. There are a total of nine (9) such developments now situated within the relevant streetscape, which is considered to have substantially altered the prevailing character of this section of Old Cleveland Road”.^[39]
[29]
Mr Elliott also refers to the considerable intensification of the traffic volumes that use this particular section of road, and considers “that the relatively suburban residential character of the streetscape depicted in the 1946 aerial photograph has been predominantly eroded in the interim period”. Mr Elliott expresses the opinion that “the character of this section of Old Cleveland Road is now dominated by the proliferation of multi-unit dwelling developments of a non-domestic scale and therefore is essentially urban in nature in the present day”.^[40]
[30]
While Mr Kennedy agrees that the southern side of Old Cleveland Road has no traditional character, he expresses the opinion that “the northern side contains a predominance of traditional ‘timber and tin’ character houses which clearly impart a strong traditional character to the street”.^[41] He does not agree with Mr Elliott that the street is now dominated by the proliferation of multi-unit developments of a non-domestic scale.^[42] Numerically, Mr Kennedy notes that of the 13 buildings on the northern side, there are nine traditional character buildings, and on that basis says that “on the northern side traditional character buildings predominate”.^[43] But in my view, that analysis unrealistically ignores the visual impact of the large and imposing unit blocks that are located at numbers 372, 388, 396 and 398. It also glosses over the limited contribution acknowledged to be made by the house on the eastern corner of Burke Street (which is included in the nine); that any contribution made by the house behind the Cheesecake Shop (also included in the nine) is really negated by the visual impact of that Shop; and both the limited visibility of the house used by the 4MBS radio station (also one of the nine), as well as the impact on it of the modern studio constructed adjacent to it.
[31]
In relation to the traffic issue raised by Mr Elliott, Mr Kennedy says that whilst he agrees the traffic volume in Old Cleveland Road is high and that it has increased considerably since 1946, he does not consider that it has removed the traditional character in the street. Mr Kennedy’s opinion is “that while the section of Old Cleveland Road in question is of mixed character and the southern side is non-descript and non-traditional, the northern side contains a large cohesive group of intact traditional character houses that overall impart a traditional character to the street”.^[44]
[32]
Assisted as I was by an inspection of the relevant portion of Old Cleveland Road, and the situation of the subject house within that relevant portion, I prefer the opinion expressed by Mr Elliott, that the overall visual character of this part of Old Cleveland Road is not one of traditional character (notwithstanding the presence of some traditional character buildings, particularly toward the western end, of the northern side of the Road). The visual prominence of the commercial building (Vision Australia), and the multiple unit dwellings on both sides of the Road, as well as the Cheesecake Shop, is far greater than that of the remaining pre-1947 Queenslander style houses. This, together with the character of the Road itself, a four lane arterial road carrying a great deal of traffic, makes it difficult to conclude that even the northern side has an overall traditional character to it. The Road has moved well away from the traditional character it manifested in 1946.
[33]
In my view, having regard to the evidence before the court, the reasonable average visitor would leave this section of Old Cleveland Road with the impression that it is a busy arterial road, with a mixed character, both in terms of uses and architectural style, building scale, size and heritage, but in respect of which the commercial and multiple unit dwellings are the more prominent, by virtue of their size, and stark exposure. Although the presence of remaining Queenslander style houses, particularly at the western end near French Street, do provide some sense of traditional character, the average person would not think, of this part of Old Cleveland Road, that this is a “pretty typical old Brisbane Street”.
[34]
Nevertheless, in so far as AO5(d) is concerned, in my view, the presence of the pre-1947 houses on the northern side of the Road, from French Street down to the 4MBS building, are such that it cannot be said the relevant portion of the Road has no traditional character.
[35]
So the real issues in this appeal are whether the demolition of the house would result in loss of traditional building character (AO5(c)) and/or whether the house contributes positively to the visual character of the street (PO5(c)).

Would demolition of the house result in loss of traditional building character (AO5(c))?

[36]
The loss contemplated by AO5(c) is not an absolute. In order to satisfy the provision, the loss does not have to be the straw that would break the camel’s back in terms of the retention of any semblance of traditional building character within the street. The relevant loss is one which is meaningful or significant.^[45]
[37]
Mr Elliott’s opinion, in the joint report, was that demolition of the house will not result in the loss of traditional building character “because the traditional character of both the immediate streetscape of Old Cleveland Road and the surrounding area generally has already been progressively and predominantly eroded by the inclusion of post-1947 multi-unit dwelling development such that the demolition of the subject house would have no noticeable impact on the limited extent of traditional building character remaining in the streetscape”.^[46]
[38]
In contrast, Mr Kennedy’s opinion is that the demolition of the house will result in the loss of traditional building character. Mr Kennedy observes that the distribution of the traditional character buildings on this part of Old Cleveland Road is restricted to the northern side of the Road, from French Street down to the subject house, on which there were originally nine character houses, seven of which remain.^[47] He is of the opinion that “[a]lthough the subject house is at the edge of this grouping it still makes an important contribution to the group such that its demolition would result in an unacceptable loss of traditional building character”.^[48] Mr Kennedy says that the seven remaining traditional character houses are all worthy examples of traditional character housing, quite intact, visible in the street and making a contribution to the traditional building character of the street. Although he says the subject house may not be as elaborate as others in the group, “traditional character in the street would clearly be eroded if it was demolished”.^[49]
[39]
Mr Kennedy also expresses the view that the subject house is “an important element in a group of traditional character houses that make a strong positive contribution to the visual character of Old Cleveland Road”^[50] – that group being the houses at the other end of the relevant section of the Road, closer to French Street. In his oral evidence, in cross-examination, Mr Kennedy seemed to be saying the subject house is “connected to” the group of three pre-1947 houses at the other end of the relevant part of the road (near French Street), but “removed” from the Cheesecake Shop, and the pre-1947 house at the corner of Burke Street (which it is much closer to). I found this unpersuasive, as it does not, with respect, make sense. His explanation, in re-examination, was that this was because of the unit developments next to the subject house (of which there is one on the west and two on the east) and the Cheesecake Shop (or more precisely, the house behind it) “not [being] a fantastic traditional structure”, with the “rest of the street upwards [being] pretty good”.^[51] But that explanation really underscores the point that Mr Elliot made, which I accept – which is that looked at in context, the subject house is isolated from the “rest of the street upwards”; finds itself in amongst unit developments (not only adjacent to it, but also on the other side of the Road) and a Cheesecake Shop, where it is the odd one out; and for that reason the connection of the subject house to the remaining pre-1947 houses further up the Road is broken.
[40]
Looked at as a whole, there has already been a significant loss of traditional building character from this section of Old Cleveland Road. As already discussed, by reference to the 1946 and 2012 aerial photographs, it cannot be said that this section of the Road, today, in any way resembles the streetscape as it would have appeared in 1946. To the extent there is traditional character in this section of Old Cleveland Road, it is limited to, and concentrated at, the western end of the relevant section of the Road. The subject house is, as Mr Elliott describes it, isolated from those houses – because of its position towards the eastern end, set back, and amongst the brick multiple-unit dwellings. The objective evidence, of what is actually located in the relevant part of Old Cleveland Road, supports the view expressed by Mr Elliott that the demolition of the subject house would not have a noticeable impact on the limited extent of traditional building character remaining in the streetscape. It would not therefore be a meaningful or significant loss of traditional building character, to the extent that this section of Old Cleveland Road continues to have traditional building character.^[52]
[41]
In my view, on the evidence, AO5(c) is met.
[42]
The effect of section 5.3.3(1)(c)(iii) of the planning scheme is that development that complies with AO5(c), complies with the purpose and overall outcomes of the code, and in turn complies with the code. I will however address PO5(c) as well.

Does the house contribute positively to the visual character of the street (PO5(c))?

[43]
In terms of PO5(c), the question is whether the house contributes positively to, in the sense that it adds to, as opposed to being neutral (or, for that matter, detracting from)^[53] the visual character of the street which is protected by the demolition code and the planning scheme more broadly – that is, to any distinctive (traditional) character in the relevant part of Old Cleveland Road.^[54]
[44]
Mr Elliott’s opinion is that the house does not contribute positively to the visual character of Old Cleveland Road because it is situated within an otherwise continuous cluster of post-1947 development which is representative of either a different residential scale or an overtly non-residential land use; and the subject house is essentially incongruent with that. He includes within this cluster the properties at numbers 386 (which houses the 4MBS radio station), 388, 396 and 398 (multi-unit dwellings) and 402 (the Cheesecake Shop).^[55]
[45]
Mr Elliott also observes that the subject house is not particularly prominent in this section of Old Cleveland Road, because it is set back further than any of the other pre-1947 houses in the relevant section of the Road (it is set back 10 metres) and because of its position being at a point where there is a “kink” in the Road, with the road turning away from the house, resulting in the house being further recessed from the streetscape. He also observes that the visibility of the house is negligible, as you move in an easterly direction (which is demonstrated in Mr Elliott’s individual report at [16] pp 10-15), although agrees it is more visible as you head west, towards the City. He also describes the subject house as being isolated from any remnant of traditional character streetscape that exists further (west) up the hill towards French Street; as looking “like the odd one out” in its setting, flanked as it is by multi-unit dwellings. Mr Elliott says that “the combination of its visual recession in the street and its isolation from other character houses means it makes … a very minor, if any, visual contribution to the streetscape”.^[56]
[46]
Mr Kennedy’s opinion is that the house does contribute positively to the visual character of this portion of Old Cleveland Road “because it is a fine example of a traditional ‘timber and tin’ character house and visually prominent in the street”. He accepts that the visual prominence of the house is limited when travelling east, but more noticeable when travelling west.^[57] Although in his oral evidence Mr Kennedy at one point suggested the curve in the Road enhanced the visibility of the house, his point ultimately was that it makes no difference. On the basis of the photographic evidence, that seems right – that is, it does not appear that the kink in the road makes a particular difference either way to the visibility of the subject house; what does limit the visibility of the house, as you travel east, is a combination of its greater set back position, and the visual obstruction created by the houses (including the front boundary walls and vegetation) and unit buildings that precede it.
[47]
In relation to this matter, I find that the contribution of the subject house, to the visual character of the Road which is protected by the code and the planning scheme, is not material, given both its separation from the traditional character houses at other end of the street; and its being surrounded by, and opposite a number of multiple unit dwellings, as well as the Cheesecake Shop.
[48]
In my view, PO5(c) is satisfied, because the house is not a building which contributes positively to the visual character of the street, protected by the demolition code. It follows that, for this reason also, the code is complied with.
[49]
This aspect of the appeal will therefore be allowed.
[50]
I will hear the parties as to the appropriate form of order, bearing in mind the appellant’s indication as to the balance of the appeal, and costs.

Footnotes

[1] See also [5] and [6] of the appellant’s submissions.

[2] Sections 313 and 326 of the Planning Act and sections 5.3.1 and 5.3.2 and table 5.10.21 of the planning scheme.

[3] See section 8.2.21.2(1) (purpose of the demolition code); and section 3.4.1, table 3.4.2.1 and section 3.7.1 of the strategic framework.

[4] Section 8.2.21.2(2) of the planning scheme.

[5] See the traditional building character planning scheme policy, in schedule 6 to the planning scheme, at paragraphs 2.2, 2.3, 2.4 and 2.5.

[6] Section 5.3.3(1)(c)(iii) of the planning scheme. Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147 at [12]; Wallace v Brisbane City Council [2012] QPELR 689 at [10].

[7] See s 5.3.3(1)(c)(iii) of the planning scheme.

[8] Wallace v Brisbane City Council [2012] QPELR 689 at [3].

[9] Litbit Pty Ltd v Brisbane City Council [2009] QPELR 197 at [10].

[10] JER at [15]-[17]; also exhibit 1.

[11] Guiney v Brisbane City Council [2016] QPELR 575 at [19].

[12] Marriott v Brisbane City Council [2015] QPELR 910 at [43]; Guiney v Brisbane City Council [2016] QPELR 575 at [26]. See also Kanesamoorthy v Brisbane City Council [2016] QPEC 42 at [30].

[13] Lonie v Brisbane City Council [1998] QPELR 209 at 212.

[14] Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147 at [20].

[15] Figure 4 on p 5 of Mr Elliott’s individual statement of evidence (exhibit 5).

[16] Elliott, exhibit 5, at [12].

[17] JER at [21.2].

[18] Cf Elliott, exhibit 5 at [13] and Mr Elliott’s oral evidence at transcript p 1-14.27 - .45

[19] Kennedy, exhibit 6, at p 21.

[20] Kennedy, exhibit 6, at p 15.

[21] Kennedy, exhibit 6, at p 15; also exhibit 7 (photograph taken from Leicester Street).

[22] Kennedy, exhibit 6, at p 16.

[23] T 1-18.20.

[24] T 1-68.12.

[25] T 1-18.27.

[26] Kennedy, exhibit 6, at p 11; also exhibit 7 (photograph taken from Leicester Street).

[27] Kennedy, exhibit 6, at pp 8-10; Elliott, exhibit 5, at figure 9 on p 7.

[28] Kennedy, exhibit 6, at pp 6-7; Elliott, exhibit 5, at figures 10 and 11 on p 7.

[29] Elliott, exhibit 5, at figure 11 on p 7; Kennedy, exhibit 6, at p 5.

[30] Kennedy, exhibit 6, at pp 3-5; Elliott, exhibit 5, at figure 12 on p 8.

[31] Elliott, exhibit 5, at figure 13 on p 8.

[32] Elliott, exhibit 5, at figure 14 on p 8.

[33] Elliott, exhibit 5, at figure 15 on p 9; Kennedy, exhibit 6, at p 18.

[34] Elliott, exhibit 5, at figure 15 on p 9.

[35] JER at [21.1(a)].

[36] AO5(d) being appropriately qualified as referring to a street that does not have sufficient character to be realistically or reasonably described as having traditional character: see Guiney v Brisbane City Council [2016] QPELR 575 at [23].

[37] T 1-22.15 to 1-38.3.

[38] JER at [21.1(b) and (c)].

[39] JER at [21.1(d)].

[40] JER at [21.1(i)].

[41] Kennedy, exhibit 6, at p 2.

[42] Kennedy, exhibit 6, at p 19.

[43] Kennedy, exhibit 6, at p 2.

[44] Kennedy, exhibit 6, at p 19.

[45] Wallace v Brisbane City Council [2012] QPELR 689 at [31]; Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223 at [8].

[46] JER at [20.1].

[47] Elsewhere there is reference to nine pre-1947 traditional character houses remaining, which includes, in addition to the seven Mr Kennedy here identifies on the northern side of Old Cleveland Road (from French Street down to the subject house), the house behind the Cheesecake Shop and the house on the opposite corner of Burke Street and Old Cleveland Road.

[48] JER at [20.2].

[49] Kennedy, exhibit 6, at p 20.

[50] JER at [22.2]; also Kennedy, exhibit 6, at p 21.

[51] T 1-79.35.

[52] See Wallace v Brisbane City Council [2012] QPELR 689 at [21]-[38].

[53] See Marriott v Brisbane City Council [2015] QPELR 910 at [89]; Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223 at [7].

[54] Marriott v Brisbane City Council [2015] QPELR 910 at [90]-[95].

[55] JER at [22.1].

[56] T 1-15.1-.33 and 1-16.37

[57] T 1-77.45.

Editorial Notes

Published Case Name:
Ken Drew Town Planning Pty Ltd v Brisbane City Council
Shortened Case Name:
Ken Drew Town Planning Pty Ltd v Brisbane City Council
MNC:
[2016] QPEC 62
Court:
QPEC
Judge(s):
Bowskill DCJ
Date:
14 Dec 2016

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Guiney v Brisbane City Council	[2016] QPELR 575	4 citations Jump To Cite 1 - [2016] QPELR 575 Cite 2 - [2016] QPELR 575 Cite 3 - [2016] QPELR 575 Cite 4 - [2016] QPELR 575
Kanesamoorthy v Brisbane City Council	[2016] QPEC 42	2 citations Jump To Cite 1 - [2016] QPEC 42 Cite 2 - [2016] QPEC 42
Ken Ryan & Associates Pty Ltd v Brisbane City Council	(2008) QPELR 147	3 citations Jump To Cite 1 - (2008) QPELR 147 Cite 2 - (2008) QPELR 147 Cite 3 - (2008) QPELR 147
Litbit Pty Ltd v Brisbane City Council	[2009] QPELR 197	1 citation Jump To Cite 1 - [2009] QPELR 197
Lonie v Brisbane City Council	(1998) QPELR 209	2 citations Jump To Cite 1 - (1998) QPELR 209 Cite 2 - (1998) QPELR 209
Mariott v Brisbane City Council	[2015] QPELR 910	4 citations Jump To Cite 1 - [2015] QPELR 910 Cite 2 - [2015] QPELR 910 Cite 3 - [2015] QPELR 910 Cite 4 - [2015] QPELR 910
Se Ayr Projects Pty Ltd v Brisbane City Council	[2016] QPELR 223	3 citations Jump To Cite 1 - [2016] QPELR 223 Cite 2 - [2016] QPELR 223 Cite 3 - [2016] QPELR 223
Unterweger v Brisbane City Council	[2012] QPELR 335	2 citations Jump To Cite 1 - [2012] QPELR 335 Cite 2 - [2012] QPELR 335
Wallace v Brisbane City Council	[2012] QPELR 689	5 citations Jump To Cite 1 - [2012] QPELR 689 Cite 2 - [2012] QPELR 689 Cite 3 - [2012] QPELR 689 Cite 4 - [2012] QPELR 689 Cite 5 - [2012] QPELR 689

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Bilalis v Brisbane City Council	[2017] QPEC 42	2 citations
Ficca v Brisbane City Council	[2022] QPEC 52	2 citations
Graya Developments Pty Ltd v Brisbane City Council	[2021] QPEC 49	1 citation
McKay v Brisbane City Council	[2021] QPEC 42	2 citations

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Ken Drew Town Planning Pty Ltd v Brisbane City Council[2016] QPEC 62