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Althaus v Brisbane City Council[2017] QPEC 41

Althaus v Brisbane City Council[2017] QPEC 41

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Althaus & Anor v Brisbane City Council [2017] QPEC 41

PARTIES:

NATHAN ALTHAUS

and

LAURA ALTHAUS

(appellants)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

914 of 2016

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

21 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 and 20 July 2017

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL BUILDING CHARACTER – where the traditional building character was the “timber and tin” character – where the building is structurally unsound – where houses are located in a street of mixed character – whether the proposed demolition complied with the Traditional building character (demolition) overlay code – whether the building is reasonably capable of being made structurally sound – where the demolition of the building would result in meaningful or significant loss of traditional building character – whether the street had no traditional character – whether the house positively contributed to the visual character of the street.

LEGISLATION:

Sustainable Planning Act 2009, s 313, s 324, s 326, s 461, s 493, s 495

CASES:

Armstrong v Brisbane City Council [2003] QPELR 475, followed

Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601; [2006] QPEC 44, approved

Farrah v Brisbane City Council [2016] QPELR 449; [2016] QPEC 19, approved

Gould v Brisbane City Council [2001] QPELR 77, approved

Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [29]; [2016] QPEC 42, approved

Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147; [2007] QPEC 93, followed

Kevin McSweeney Pty Ltd v Brisbane City Council [2012] QPELR 295; [2011] QPEC 138, approved

Leach v Brisbane City Council [2011] QPELR 609; [2011] QPEC 55, approved

Lonie v Brisbane City Council [1998] QPELR 209, approved.

Lucas v Brisbane City Council [2015] QPELR 671; [2015] QPEC 25, approved

Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45, approved

Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223 at 225; [2016] QPEC 3, approved

Unterweger v Brisbane City Council [2012] QPELR 335; [2011] QPEC 134, approved

COUNSEL:

S Fynes-Clinton for the appellant

B D Job for the respondent

SOLICITORS:

H Drakos & Company for the appellant

Brisbane City Legal Practice for the respondent

TABLE OF CONTENTS

Introduction...........................................................................................................................................................................3

The Traditional building character (demolition) overlay code.........................................................................................6

The Wynnum-Manly neighbourhood plan code...............................................................................................................9

Conflict with the Traditional building character (demolition) overlay code.................................................................10

Is the building reasonably capable of being made structurally sound?.......................................................................10

General principles.................................................................................................................................................................10

The evidence.........................................................................................................................................................................16

The need for replacement of all of the pine flooring..........................................................................................................19

Demolition and reconstruction of Flats 4 and 5.................................................................................................................22

Replacement of north and east window sills to tower........................................................................................................24

Repainting of upper external walls of dwelling...................................................................................................................24

Upgrading (replacement) of plumbing and electrical services...........................................................................................25

Cornice, architraves and window / door jams and internal door......................................................................................26

Asbestos removal.................................................................................................................................................................26

The extent of the contingency..............................................................................................................................................27

Conclusion on structural soundness...................................................................................................................................29

Does the street have traditional character?....................................................................................................................30

Will there be a loss of traditional building character?....................................................................................................33

Does the building contribute positively to the visual character of the street?...........................................................35

Does the development comply with the overall outcomes?.........................................................................................38

Conflict with the Wynnum-Manly neighbourhood plan code.......................................................................................39

Conclusion...........................................................................................................................................................................42

Introduction

  1. [1]
    This appeal is against the decision of the respondent, Brisbane City Council (“Council”) refusing the appellants’ development application seeking a preliminary approval for building work to facilitate demolition of a building at 17, 19 and 21 Kingsley Terrace, Wynnum.
  1. [2]
    The building is a pre-1947 residential building[1] that was originally constructed as a single residence around 1920[2] and was divided into a series of flats between 1946 and 1952.[3] 
  1. [3]
    The subject site has an area of approximately 1 125 square metres and is comprised of three individual allotments, each of approximately 405 square metres.[4]  It has street frontages to Kingsley Terrace to the north (the primary street frontage) and Wolsey Parade to the east (the secondary street frontage).[5]

The decision framework

  1. [4]
    The appeal was commenced by the appellants under s 461 of the Sustainable Planning Act 2009 (Qld).  Under s 495, the appeal proceeds by way of hearing anew. 
  1. [5]
    The development application was made on 24 November 2015 under Brisbane City Plan 2014 (“City Plan”).[6]
  1. [6]
    As the development application was code assessable, it is to be assessed having regard to s 313 of the Sustainable Planning Act 2009.  The court must, to the extent relevant, assess the development application against applicable codes.  The development application is to be decided in accordance with s 324 and s 326.  Pursuant to s 326, a decision must not conflict with City Plan unless, relevantly, there are sufficient grounds to justify the decision despite the conflict.
  1. [7]
    Conflict means “at variance or disagree with”.[7]
  1. [8]
    The word “grounds” is defined in Schedule 3 of the Sustainable Planning Act 2009 as:

“1. Grounds means matters of public interest.

  1. Grounds does not include the personal circumstances of an applicant, owner or interested party.”
  1. [9]
    It is for the appellants to establish that the appeal should be allowed and the development application approved.[8] 

The issues

  1. [10]
    The key issues in dispute are narrow in compass. They are effectively:
  1. (a)
    whether there is conflict with the Traditional building character (demolition) overlay code, which is informed by:
  1. (i)
    whether the building is reasonably capable of being made structurally sound (overall outcome (2)(g), performance outcome PO5(b) and acceptable outcome AO5(b));
  1. (ii)
    whether the building is in a street that has no traditional character (acceptable outcome AO5(d));
  1. (iii)
    whether the demolition of the building will result in a material loss of traditional building character (acceptable outcome AO5(c));
  1. (iv)
    whether the building contributes positively to the visual character of Kingsley Terrace and Wolsey Parade (performance outcome PO5(c)); and
  1. (v)
    whether the development complies with the overall outcomes (2)(a) and (2)(d) of the Traditional building character (demolition) overlay code; and
  1. (b)
    whether the proposed demolition conflicts with the purpose of the Wynnum-Manly neighbourhood plan code in that it does not comply with overall outcomes (a), (b) and (g) of that code.

City Plan 2014

  1. [11]
    Under City Plan 2014, the subject site is, relevantly:
  1. (a)
    located in the Character precinct of the Character residential zone;
  1. (b)
    included in the Wynnum-Manly neighbourhood plan area; and
  1. (c)
    subject to the Traditional building character overlay.[9]
  1. [12]
    Section 5.3.3 of City Plan provides guidance on the extent to which codes within City Plan are relevant to assessment of code assessable development. It states:[10]

“(i) development must be assessed against all the applicable codes identified in the assessment criteria column;

(ii) …

  1. (iii)
     development that complies with:
  1. (A)
     the purpose and overall outcomes of the code complies with the code;
  1. (B)
     the performance or acceptable outcomes where prescribed complies with the purpose and overall outcomes of the code;
  1. (iv)
     development must have regard to the purposes of any instrument containing an applicable code;”
  1. [13]
    The section also includes a “Note” that confirms that in relation to s 5.3.3(1)(c)(iv) of City Plan, and in regard to s 313(3)(d) of the Sustainable Planning Act 2009, the Strategic framework is considered to be the purpose of the instrument containing an applicable code.
  1. [14]
    The relevant applicable codes are:
  1. (a)
    the Traditional building character (demolition) overlay code; and
  1. (b)
    the Wynnum-Manly neighbourhood plan code.

The Traditional building character (demolition) overlay code

  1. [15]
    The purpose of the Traditional building character (demolition) overlay code is to:[11]

“(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. [16]
    The policy direction in the strategic framework, insofar as it relates to character housing, is evident in the strategic outcomes for Theme 2: Brisbane’s outstanding lifestyle, which are set out in section 3.4.1 of the strategic framework in City Plan and include, relevantly:[12]

“(b) Brisbane is defined by the visual markers and amenity created by a visually dominant City Centre, concentrated centres along transport corridors, the Brisbane River, major hills and valleys, bushlands and open space, traditional character suburbs, mature urban vegetation and the bay and bayside areas and islands. Brisbane’s neighbourhoods each express their individual identity.

  1. (c)
     Brisbane has locations within the city which have cultural heritage significance to a broad range of groups and individuals. Character housing provides a link with Brisbane’s history and helps to reinforce a strong sense of place and community identity. Brisbane’s character elements and built cultural heritage are appreciated, protected and managed …”

(emphasis added)

  1. [17]
    These strategic outcomes are further refined and described in the specific outcomes for Element 2.1 - Brisbane’s identity, addressed in table 3.4.2.1, which include specific outcome SO20.  It states that “Brisbane’s distinctive suburban identity is reinforced by its character housing precincts”.[13]
  1. [18]
    The corresponding land use strategies include:[14]

“L20.1 

Character buildings built in 1946 or before are protected via overlays.

L20.2 

Development proposals maintain the traditional building character housing that individually and collectively contributes to the distinctive character of the area and streetscape.”

  1. [19]
    For Theme 5, the strategic outcomes refer to Brisbane’s Suburban Living Areas. In them, impacts on local amenity and values are to be carefully considered.[15]  They comprise, relevantly, localities identified in overlays, neighbourhood plans and zoning patterns as having particular character or value that are desired to be retained with very little visible change over the life of City Plan.[16]  They also include “areas of character housing and commercial character buildings substantially constructed in 1946 or earlier”.[17]
  1. [20]
    Within element 5.5, the land use strategies confirm that the zoning pattern shows the development intent that is consistent with local values, constraints and opportunities.[18]
  1. [21]
    The references within the Strategic framework to the functional purpose of the zoning pattern, as well as the task of construing City Plan as a whole, necessitates consideration of the Character residential zone and the Character residential zone code.[19]
  1. [22]
    The purpose of the Character residential zone code is to provide for a particular character of a predominantly residential area.[20]  Its purpose reflects that of the Traditional building character (demolition) overlay code: its intention is to implement the policy direction set in Themes 2 and 5 of the Strategic framework.[21]
  1. [23]
    The purpose of the Character residential zone code is also to “protect existing dwelling houses built in 1946 or before”.[22]  This purpose is achieved through overall outcomes, which require that development retains buildings on land within the Traditional building character overlay in accordance with the Traditional building character (demolition) overlay code.[23]  That outcome is reinforced by the overall outcomes that are specifically related to the Character zone precinct (within which the land is located), which includes a requirement that “development retains a dwelling house built in 1946 or before”.[24]
  1. [24]
    The purpose of the Traditional building character (demolition) overlay code, is to be achieved through the overall outcomes, which include:[25]

“(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. (d)
     Development protects a building constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier.

…

  1. (g)
     Development permits demolition or removal of post-1946 residential buildings or structurally unsound buildings.”
  1. [25]
    The assessment criteria are set out in section 8.2.21.3 of the Traditional building character (demolition) overlay code. Performance outcome PO5 and acceptable outcome AO5 are relevant in this case and state:[26]

Performance outcomes

Acceptable Outcomes

PO5

Development involves a building which:

  1. (a)
     does not represent traditional building character; or
  1. (b)
     is not capable of structural repair; or
  1. (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
  1. (c)
     if demolished will not result in the loss of traditional building character; or
  1. (d)
     is in a street that has no traditional character.

The Wynnum-Manly neighbourhood plan code

  1. [26]
    The appellants accept that the proposed demolition is assessable development under section 5.10 of City Plan, which sets out categories of development and assessment for particular overlays and deals with the Traditional building character overlay at s 5.10.21.[27]  The effect of the provisions is that the Wynnum-Manly neighbourhood plan code is an assessment benchmark under table 5.9.72.C.[28]
  1. [27]
    In its reasons for refusal, Council alleges that the proposed development does not comply with overall outcomes (3)(a), (b) and (g) of the Wynnum-Manly neighbourhood plan code.[29]  Those provisions state:[30]

“(a) Wynnum-Manly is a thriving, inclusive and accessible bayside community that retains and enhances its unique bayside character.

  1. (b)
     Development in Wynnum-Manly retains its strong sense of place including the area’s relationship to Moreton Bay, its buildings, seaside landscapes, sense of community identity, and Aboriginal and Torres Strait Islander values.

…

  1. (g)
     While making efficient use of land, development is consistent with community expectations and infrastructure assumptions”.

Conflict with the Traditional building character (demolition) overlay code

  1. [28]
    It is uncontentious that the building is a pre-1947 residential building and that it clearly expresses “timber & tin” traditional building character.[31]  It was constructed as a single residence around 1920 for Mr John Darnell, who lived in the house until his death in 1930.  A subsequent owner converted the house into a series of flats.[32]
  1. [29]
    In order to establish that there is no conflict with the Traditional building character (demolition) overlay code, the appellants need only establish that:
  1. (a)
    the building is not reasonably capable of being made structurally sound (acceptable outcome AO5(b) and performance outcome PO5(b)); or
  1. (b)
    the street has no traditional character (acceptable outcome AO5(d)); or
  1. (c)
    if the building is demolished, it will not result in the loss of traditional building character (acceptable outcome AO5(c)); or
  1. (d)
    the building does not contribute positively to the visual character of the street (performance outcome PO5(c)); or
  1. (e)
    the development complies with the purpose and the overall outcomes of the code.

Is the building reasonably capable of being made structurally sound?

General principles

  1. [30]
    Acceptable outcome AO5(b) raises the issue of whether “the building is structurally unsound and not reasonably capable of being made structurally sound”.
  1. [31]
    In earlier cases, the court has considered the meaning of this phrase, which has appeared in various Council planning documents with respect to demolition of heritage and traditional character buildings. The following principles emerge from those decisions:
  1. (a)
    the planning document reveals a clear intention to retain character dwellings;[33]
  1. (b)
    if, as a result of the requirement to retain a character dwelling, a landowner is disadvantaged in terms of the manner in which the property may be disposed of, that is a consequence of the provisions themselves and, to this end, they are perfectly clear, precise and unambiguous;[34]
  1. (c)
    the question of whether the building is reasonably capable of being made structurally sound must be answered objectively.[35]  The subjective inclinations of an individual owner provide no assistance,[36] and the preference of a landowner is irrelevant;[37]
  1. (d)
    the proper approach is to put one’s self in the position of a notional owner who is reasonable and prudent: certainly not one who has an aversion to old buildings and their preservation and certainly not one who has an eye upon maximum commercial advantage;[38]
  1. (e)
    the term “structural repair” is the means by which structural soundness is effected.  It does not comprehend anything broader than the notion of structural soundness;[39]
  1. (f)
    “structural soundness” connotes that, in an engineering sense, the fundamental attributes of the relevant structure are present in an acceptable condition;[40]
  1. (g)
    structural soundness does not require or comprehend structural “perfection”, rather a state of engineering integrity;[41]
  1. (h)
    the code does not provide, directly or even by inference, a requirement that the standard of structural soundness meet present-day building codes and standards;[42]
  1. (i)
    the reasonableness of the repair work must not only be considered in the light of the physical ability to carry out that work, but also considerations of complexity and cost in the carrying out of that work;[43]
  1. (j)
    the cost of the work should not be judged in isolation;[44]
  1. (k)
    the work does not include all of the work involved in a complete and faithful restoration of a building to its original condition,[45] or even the cost to bring the dwelling to a presentable and habitable state;[46]
  1. (l)
    considerations of whether a house is habitable or not turn on questions of the fittings and decorations, rather than upon the essential structure of the house;[47] and items associated with painting, bathroom and kitchen fittings and rewiring are clearly not structural in the sense used in the code;[48]
  1. (m)
    the focus is upon the building, rather than the purpose to which it is put;[49] and
  1. (n)
    it is a function of the notion of reasonableness that it must vary depending upon the particular circumstances to which it is applied.[50]
  1. [32]
    The appellants submit that the notion of what is reasonable to make a premises structurally sound involves consideration of what is required to achieve premises which are:
  1. (a)
    structurally sustainable in the long term;
  1. (b)
    weatherproof, recognising that the notion is of structural soundness in the long-term on the premise that, following the carrying out of the work, the premises will be used for their intended purpose for a lengthy period, and that potential for water ingress or other elemental damage is a matter which goes to integrity of the structure in the long term; and
  1. (c)
    safe for occupation by those intended to occupy them.[51]
  1. [33]
    In my view, the extent to which weatherproofing and measures to make a dwelling “safe for occupation” ought properly be regarded as costs of making a building structurally sound will be a question of fact and degree.  There may, for example, be work that is reasonably required to ensure a building is structurally sustainable in the long-term, but which is more in the nature of maintenance.  One such example is the painting of timber houses.  The longevity of the structural integrity of the timber is enhanced by the application of paint, but it is even further enhanced by the application of paint every five to ten years as part of a maintenance regime (rather than once in a building’s life).[52]
  1. [34]
    Further, when determining whether a building is reasonably capable of being made structurally sound, it is important not to lose sight of the fact that acceptable outcome AO5(b) contemplates a report by an engineer. This informs the proper construction of the provision. It tells against placement of undue emphasis on a line by line cost analysis.
  1. [35]
    The appropriate approach, to my mind, is that contended for by Council. It submits:[53]

“It is undoubtedly the case that the consideration of costs which is undertaken, is to occur only in the particular context of the particular case. In determining what is reasonable in a cost sense, the figure or range of cost which is eventually discerned as required to bring the building to a state of structural soundness must then be assessed in context. That is, what is reasonable in all the circumstances?

That proposition is supported by example, involving an assumption that the relevant cost of repair is $150,000. On the one hand that figure may well be considered unreasonable in the circumstance of a small and unremarkable house in an undesirable location such as a heavily trafficked, low amenity area. In that case one would assume the dwelling to have a very low value such that the cost of mere repair would be obviously disproportionate, and therefore unreasonable. Alternatively, that same figure would be very likely to be considered reasonable for a large, potentially majestic house in an attractive setting and a desirable locality such that the as is value was, say, $2 million.”

  1. [36]
    The deliberate reference in acceptable outcome AO5(b) to a report by an engineer also tells against the inclusion of the cost of plumbing and electrical works, as contended by the appellants. In this regard, the appellants seek to rely on a statement by Jones DCJ in Farrah v Brisbane City Council [2016] QPELR 449, 454 [19]; [2016] QPEC 19 that “structurally sound includes making the structure waterproof and safe”.  The appellants read this statement as referring to making the building safe, which they submit would include ensuring that plumbing and electrical works are of a safe standard.  I do not accept that is the intention of the statement.  It appears to me that the reference to “structure” was not a reference to the building as a whole, but to those elements of a building that make up its structural framing and fabric, such as floor structure, external walls, internal support walls and beams, roof, joists, etc.[54]  As much is evident from the observation at the end of the paragraph that “I agree with the submission of Mr Williamson to the effect that “structurally sound” contemplates a state of engineering integrity and safety”. 
  1. [37]
    The construction contended for by the appellants is also inconsistent with the other principles evident from the cases, such as that the cost does not include the cost of making the building habitable, and that the focus of the provision is on the building and not the purpose to which it is put.
  1. [38]
    Further, to construe the provision in an expansive way as contended by the appellants, namely as including matters relevant to safety, has the potential to introduce endless other matters that are not engineering matters. Examples include the cost of removing trees that pose a threat to the structure, the cost of removing non-structural asbestos or the cost of building a fence if a house is on a busy road or near a railway line.
  1. [39]
    For those reasons, I do not accept the appellants’ submissions that regard must necessarily be had to the costs associated with updating the plumbing and electrical services.
  1. [40]
    The appellants also urged the court to have regard to the observations of Jones DCJ in Farrah v Brisbane City Council [2016] QPELR 449; [2016] QPEC 19 at [20], where His Honour observed:

“Before going on to consider the evidence I would also make the observation that obligations of the type involved here imposed on land owners have the potential to result in material financial disadvantage in the absence of compensation being payable. That is, limitations on the ability to deal freely with one’s land may well result in an owner being denied the opportunity to maximise his selling price by selling the land in a state capable of achieving its highest and best use. In circumstances where, by way of examples, an owner could not afford to carry out the works or simply refused to expend the necessary money, the end result may be that structures are simply being left to deteriorate further. Such an outcome would neither benefit the owner, the respondent, nor the broader community of Brisbane. In respect of the former example Mr Williamson said that the owner could simply sell the property. That may well be so but for whatever reason he may not want to.”

  1. [41]
    Care must be taken to pay careful attention to the precise statement made. It does not, to my mind, include a general principle that concerns itself with the financial impact on all landowners, rather it is premised on “material financial disadvantage in the absence of compensation being payable”.  On such matters, to my mind:
  1. (a)
    one would expect a prudent landowner who purchases land subject to such controls would have regard to the restriction (and potential obligations) entailed in determining the price they were willing to pay for the property; and
  1. (b)
    with respect to those who own land prior to the introduction of such controls, it should be remembered that the planning legislation provides for the payment of reasonable compensation if a change to a planning scheme or planning scheme policy reduces the value of an owner’s interest in land.[55]

The evidence

  1. [42]
    In terms of the current state of the building, the engineers agreed:
  1. (a)
    “[t]he original structural framing and fabric of the house is generally intact”;[56]
  1. (b)
    although there are isolated items that require repair, the external stairs are the primary elements that are currently structurally unsound;[57]
  1. (c)
    no live borer activity has been identified;[58] and
  1. (d)
    all of the required repairs as itemised in the Joint Report “are readily achievable with normal building practice relating to working with pre-1946 houses”.[59]
  1. [43]
    Further, I accept the evidence of Mr Bligh that the building is not in a dilapidated state[60] in that:
  1. (a)
    the roof is keeping the weather out (as it only has one leak that has been detected in a localised area in the lookout tower);
  1. (b)
    the external walls are weatherproof and keeping the water out;
  1. (c)
    the verandahs have been enclosed, but in a way that is keeping the water out;
  1. (d)
    the walls and ceiling structure are held together and intact; and
  1. (e)
    the house is generally level and straight.[61]   
  1. [44]
    The property “as is” has a value of approximately $1 300 000.[62] 
  1. [45]
    There is no dispute that the building is capable of being made structurally sound. It is physically possible to carry out the necessary work and the work is readily achievable with normal building practice.[63]  The real issue is whether it is reasonable to undertake the repairs necessary to make the building structurally sound.
  1. [46]
    The parties agreed that the court may proceed on the basis that the cost to carry out items agreed by the engineers is, in round terms, $160 000.  The agreed items include, in general terms:
  1. (a)
    replacement of identified stumps and posts damaged by termites and rot;
  1. (b)
    strengthening and supporting identified timber bearers;
  1. (c)
    replacing 50 per cent of the pine flooring (with a dispute about allowing for a greater replacement rate);
  1. (d)
    demolishing a bathroom and toilet extension constructed in the undercroft;
  1. (e)
    repairing stairs;
  1. (f)
    replacing or repairing VJ walls;
  1. (g)
    repairing hardwood cladding;
  1. (h)
    replacing loose weatherboards;
  1. (i)
    replacing the original corrugated steel roof sheeting;
  1. (j)
    replacing roof members and repairing roof framing;
  1. (k)
    replacing identified doors; and
  1. (l)
    preliminaries (such as equipment hire), demolition costs and termite treatment.[64]
  1. [47]
    In relation to a number of other work items that were the subject of disagreement between the engineers, the parties were content for the court to determine the matter on the basis that, whatever cost of structural repairs is ultimately determined to be correct (represented by the total of the agreed items referred to, and any of the disagreed items decided appropriate), a figure of anywhere between $0 and $21,583 might potentially be added, but that any additional cost within that range would be immaterial to the determination as to reasonableness. This agreement is sensible.
  1. [48]
    However, there remains disagreement between the experts, and the parties, about the need for:
  1. (a)
    replacement of all of the pine flooring (as distinct from 50 per cent only);
  1. (b)
    demolition and reconstruction of Flats 4 and 5;
  1. (c)
    replacement of the north and east window sills to tower;
  1. (d)
    repainting of upper external walls of the building;
  1. (e)
    upgrading (replacement) of plumbing and electrical services;
  1. (f)
    replacement of borer damaged cornice, architraves and internal doors;
  1. (g)
    asbestos removal during the course of carrying out structural restoration works; and
  1. (h)
    a sizeable contingency that the appellant contends should be allowed for presently unknown structural issues (primarily termite or borer infestation) that may be revealed during the course of such restoration works.
  1. [49]
    The appellants do not press, in this context, the issues about replacing boundary retaining walls or demolishing and rebuilding the garage: it is (sensibly) accepted that those matters do not relate to work that is reasonably required to be done to make the building itself structurally sound.[65]
  1. [50]
    Before turning to each of the specific items, it is worth noting my general observations about the evidence of the two structural engineers.
  1. [51]
    In general, I prefer the evidence of Mr Bligh (the structural engineer engaged by Council) to that of Mr Avery (the structural engineer engaged by the appellants). Mr Bligh has 25 years experience working with Brisbane’s character housing stock.  He has been involved in alterations, renovations and extensions to Brisbane’s character housing stock and has become recognised as a conservation structural engineer by the State heritage and environment departments.[66]  I was particularly impressed by Mr Bligh’s oral testimony.  His evidence was measured and cogent.  Mr Avery, on the other hand, struck me as misguided in his approach and prone to overstating the extent of works required.  Mr Avery:
  1. (a)
    provided a report in support of the development application that expressed the view that achieving structural soundness was “uneconomical”,[67] despite the fact that he had no indication of the costing of the work he had referred to nor any other identified context to make that determination;[68]
  1. (b)
    authored a development application report and five other reports, up to and including the report for the hearing, that included the opinion that replacement of a range of non-structural matters, including both external garden retaining walls and the external, freestanding garage (which were subsequently costed at approximately $50,000 and $17,000 respectively) were relevant matters for acceptable outcome AO5(b).  They are not;
  1. (c)
    added the replacement plumbing and electrical services, despite acknowledging in his evidence in chief that he had no expertise in the field and that, accordingly, he simply made a recommendation that “others should investigate”;[69]
  1. (d)
    speculated about the prospect of future borer activity, despite the fact that the numerous inspections that have occurred over nearly two years have identified no evidence of any current activity;[70] and
  1. (e)
    included a recommendation for an extremely large contingency allowance, despite acknowledging that it was a matter for others and that questions of costing are not within his expertise.

The need for replacement of all of the pine flooring

  1. [52]
    There is no dispute that, in this building, the floorboards are structural elements.
  1. [53]
    The pine flooring exhibits evidence of previous infestation by pine borers, being the larvae of the Queensland Pine Beetle. The infestation has affected the vast majority of the pine flooring boards that form the primary component of the floor for the upper living area. Pine borer infestation has the potential to, over time, destroy the structural integrity of the pine by eating away or “honeycombing” the affected timber.  It has the potential to reduce the strength of the pine, thereby reducing its structural integrity. 
  1. [54]
    Past borer activity is not unusual in houses of this age: in fact, it is quite common.[71]  The presence of exit holes does not necessarily equate to structural problems.  It depends on the intensity of damage to the pine.[72]
  1. [55]
    The real question is to what extent the potential for reduction in structural integrity has been realised. The appellants’ contend that regard should also be had to the possibility of further damage in the future. The appellants have not discharged their onus in this regard. Mr Avery’s speculation about the possibility of continuing damage is unsubstantiated. On the balance of probabilities, given the complete absence of any evidence of borer activity or pine beetles since investigations commenced in October 2015,[73] I am not satisfied that regard should be had to the possibility of further attack.
  1. [56]
    In terms of an assessment of the existing damage, it was accepted by Mr Bligh that visual observation alone is insufficient to determine the extent to which a particular floorboard has been detrimentally impacted in terms of its structural integrity. This is because:
  1. (a)
    the visibility or number of exit holes provides no reliable information as to the extent to which the timber has been consumed by borers during their maturation stage prior to the adult beetle exiting from those holes;
  1. (b)
    the exit holes tell you nothing about the extent to which eggs have been laid and borers are maturing within the timber;[74]
  1. (c)
    the observation of pine beetle infestation carries with it a risk of continuing activity by those insects;[75] and
  1. (d)
    treatment of pine beetle (once infestation has been established) is difficult.[76]
  1. [57]
    However, the assessment of the engineers was not limited to a visual assessment.
  1. [58]
    Despite visual evidence of borer damage in the pine floorboards, the first engineering Joint Expert Report records that:[77]

“… significant loss of strength was not identified during the first joint inspection. Numerous locations as seen fit were impact tested with screw drivers from below with no loss of strength identified. One location in Flat 3 which exhibited typical borer presence as seen from below was uncovered from above and tested. These boards were likewise intact and serviceable.”

  1. [59]
    On the second inspection, hammer impact testing was undertaken in numerous locations. That indicated that borers had weakened some boards, such that replacement is required, and that other boards are structurally sound.[78]  One of the holes punched in the floor by the hammer testing was to a board that revealed no noticeable border activity.  This leaves doubt in my mind as to the reliability of the hammer impact testing.
  1. [60]
    I accept the opinion of Mr Bligh that his assessment of the extent of potential damage to the floorboards is a conservative one given the thoroughness of the “vigorous” probing undertaken with his screw driver and, particularly, because of the absence of any evidence of failure “in service”, despite the dwelling having been occupied and the fact that the boards were not “spongey” to walk on.  Mr Bligh explained that boards that have internal damage and have lost their structural integrity would give a soft feeling under foot.[79]  Mr Bligh conceded that his observation in this regard applies equally to the floorboards in Flat 3 that were hammer tested and revealed damage.[80]  However, this concession does not cause me to doubt what Mr Bligh says as he was not asked whether he had walked on those particular boards.
  1. [61]
    In my view, the agreed allowance for replacement of 50 per cent of the pine flooring is reasonable.

Demolition and reconstruction of Flats 4 and 5

  1. [62]
    To the extent that there is a need for restumping in Flats 4 and 5, the agreed costs allow the structural repairs to be affected by a more careful approach. That is the basis for the apparently high costs of re-stumping to which the builders refer in items 38 and 39.[81]
  1. [63]
    Demolition of Flats 4 and 5 is only needed to prevent further termite activity. Other identified damage in Flats 4 and 5, such as borer damage to architraves, is not structural in nature.
  1. [64]
    It is asserted by the appellants that:
  1. (a)
    the premises cannot be protected from termite invasion over the longer term without demolition of the slab under those flats and the suspended floor under Flat 4 from which termites have entered, and the application of contemporary termite protection following that demolition;
  1. (b)
    the necessary demolition of the slab cannot be done without the demolition of Flats 4 and 5 themselves; and
  1. (c)
    Flats 4 and 5 form part of the “building” referred to in PO5 and AO5, and that any proposition that those flats may be demolished but not replaced involves the carrying out of work to create a new and different building, and not the “building” to which the code is to be applied.
  1. [65]
    It is true that, under cross-examination, Mr Bligh accepted that:
  1. (a)
    it is likely that termites have intruded into the premises from cracks within the slab;[82]
  1. (b)
    to the extent that the suspended floor in Flat 4 is timber supported on ground, rather than on an underlying concrete slab, it is also likely that termites entered the premises from that source (noting Mr Althaus’ video of 2 June 2017 showing termites within Flat 4);[83] and
  1. (c)
    if he was advising an owner about restoration of the subject premises, even though the extent of termite activity was limited, compared to what he has otherwise observed at other locations, he would advise that Flats 4 and 5 should be demolished.  This would ensure that the slab and suspended floor, which are a point of likely termite entry, are removed and appropriate termite protection provided from a “long term structural integrity perspective”.[84]
  1. [66]
    However, the appellants have not adequately established that the works are the only effective or reasonable means of providing termite protection.
  1. [67]
    Leaving questions of weight aside for a moment, I note that the report records that “Creepy Crawly will not warrant a chemical barrier for this home due to having cracks in the slab and no access to the penetrations”.[85]  The report also contains statements that provide an indication that there are other means of protecting a house from termites.  It refers to notice being kept in the meter box indicating “the type of treatment shield system, treated zone or combination has been installed”.[86]
  1. [68]
    The appellants accept that the weight that can be given to the Creepy Crawly Pest Control Pty Ltd report[87] is limited in the absence of the author being called. 
  1. [69]
    The appellants submit that:[88]

“Accepting the weight limitations of the report, there is simply no other evidence at all other than by way of generalised assertion unsupported by any demonstrated expertise, site investigation or identification of the actual points of termite entry to support a proposition that some kind of termite treatment leaving the existing slab and suspended floor in place would be effective. To the extent that suggestions to the contrary were made, they were made by witnesses:

  1. (a)
     with no specialist expertise in the area;
  1. (b)
     off-the-cuff in the sense that their trial reports did not deal with those matters; and
  1. (c)
     ultimately as a matter of untestable assertion of opinion, not objective fact.”
  1. [70]
    The absence of evidence does not assist the appellants. They bear the onus of establishing that the building is not reasonably capable of repair. I am not persuaded, on the balance of probabilities, that the demolition of Flats 4 and 5 are works required to achieve structural soundness.
  1. [71]
    As such, it is unnecessary for me to consider whether the cost of reconstruction of Flats 4 and 5 ought be considered in assessing whether the building is reasonable capable of being made structurally sound.

Replacement of north and east window sills to tower

  1. [72]
    In Mr Avery’s opinion, the north and east window sills to tower need removal and replacement as he observed rot on the external parts of the sills.[89]  Mr Bligh, on the other hand, regards them to be in good condition.[90]  Although he believes they could do with some sanding and painting, he did not observe any rot of significance.[91]
  1. [73]
    The appellants have not provided any photographs of the area in question that might assist the court in resolving this dispute. In the circumstances, and given my reservations about Mr Avery’s evidence, I am not satisfied that these works are reasonably required.
  1. [74]
    In any event, the agreed cost of $1,928 is not material in my overall assessment of reasonableness.

Repainting of upper external walls of dwelling

  1. [75]
    Items associated with painting are clearly not structural in the sense used in the code.[92]  That such works would be undertaken during a restoration is beside the point.
  1. [76]
    Mr Avery’s contention that it was necessary in this instance was unconvincing. He acknowledged, in cross-examination, that no existing rot of the timber is present. Instead, he sought to prevent it in the future on the basis that some of the paint was peeling or flaking. As Mr Avery also agreed, it is an issue that he would expect to see in many, many houses of this age.[93]
  1. [77]
    Mr Bligh agreed under cross-examination that painting or other treatment of external hardwood components is appropriate to ensure long-term structural integrity of such components by protecting them from the elements. However, such measures are prudent as part of regular maintenance. It is the maintenance that enhances the longevity of the structural integrity. As such, I accept that painting ought not be regarded as necessary weatherproofing if there is no short-term need for the painting to prevent structural damage.[94]  I am not satisfied of any short-term need here.

Upgrading (replacement) of plumbing and electrical services

  1. [78]
    For the reasons explained in paragraphs [36] to [39] above, I do not regard items such as rewiring or the installation of new plumbing to be structural in the sense used in the code.[95]
  1. [79]
    In any event, I am not persuaded that there is a need for replacement of the plumbing and electrical services.
  1. [80]
    Mr Avery’s recommendation was simply that someone who had the qualifications to do so should investigate it.[96]  That did not occur. Instead, Mr Frankel provided a cost of the replacement of, apparently, the entirety of the plumbing and electrical services from others.
  1. [81]
    Although the quotations Mr Frankel relied upon were admitted into evidence, I place little weight on them as their authors were not called. Council did not have the opportunity to test, through cross-examination, the need for the extent of the works that were costed. The appellants refer to video evidence of rusty water from some taps.[97]  There is no explanation as to, for example, how long that water had been sitting in the pipes, or whether or not the apparent discolouration of the water persisted or quickly dissipated.  This is but one example of the matters that Council was unable to test given that the appellants elected not to call the authors of the quote.
  1. [82]
    Mr Frankel’s evidence that he typically quotes for replacement of all those services is of no relevance. He freely agreed that he did so in any renovation project he undertook of an old house, irrespective of whether structural soundness issues were involved.[98]  The costs to be considered do not include those of a renovation.

Cornices, architraves and window / door jams and internal door

  1. [83]
    Mr Bligh considered cornices, architraves and door frames to be non-structural.[99]
  1. [84]
    Mr Chapman confirmed that only light nails affixed such fittings.[100]
  1. [85]
    Despite the light nature of their fixing, during cross-examination, Mr Avery maintained his opinion that those items contribute to the structure.[101] 
  1. [86]
    Given that the cornices, architraves and door frames are only affixed by light nails, I am not satisfied that they are items that are necessary to ensure structural soundness of the type contemplated by the code.
  1. [87]
    The appellants have not established, on the balance of probabilities, that there is an appreciable risk of continuing activity.

Asbestos removal

  1. [88]
    The “claim” for asbestos removal was not identified in the Joint Report of the structural engineers, nor Mr Avery’s individual report.  It has been included as a figure in Mr Frankel’s Court report on the basis that it was “allowance for removal of Asbestos to upper level to allow for rectification work”, and based upon a quotation by others who were not called.
  1. [89]
    It is not suggested that the removal, of itself, is necessary for structural reasons.
  1. [90]
    I consider the evidence about this item to be deficient. There is a complete absence of detail of what asbestos there is, where it needs to be removed, and whether the “rectification work”, to which the quotation refers, is work of a structural sense or otherwise. 
  1. [91]
    There is insufficient evidence to support a conclusion that the appellants have properly demonstrated that the $16,500 claim ought be included.

The extent of the contingency

  1. [92]
    There is a dispute about the extent of the contingency that should be allowed for presently unknown structural issues (primarily termite or borer infestation) that may be revealed during the course of any works.
  1. [93]
    Mr Chapman has allowed a figure of $10,000 for contingencies as being a reasonable allowance.[102]  It is already incorporated into the “agreed” items.
  1. [94]
    At the other end of the spectrum is Mr Frankel’s figure of $180,000. It represents 35 per cent of the absolute maximum value on the express basis that all items contended for by Mr Avery were allowed, and that all of Mr Frankel’s estimates were accepted, rather than those of Mr Chapman.[103]  As is apparent from above, I am not satisfied that many of those items contended for by Mr Avery ought be included.
  1. [95]
    In any event, the contingency percentage applied by Mr Frankel is an “allowance for contingency as contended by Mr Avery”.[104]  However, as has been noted, Mr Avery disallowed any expertise in relation to costing, and expressly agreed that the setting of contingencies was not a matter for him, but for builders.[105]  When asked, Mr Frankel was unable to offer a reliable estimate.[106]
  1. [96]
    The appellants, nevertheless, point to the sizeable increase in costs between the initial Joint Report of the Structural Engineers dated 6 September 2016[107] and the final Joint Report, together with the fact that Mr Bligh was demonstrably wrong in his view in the first Joint Report that “additional works will be very limited”, to submit that a contingency in the range of $50 000 to $100 000 would be appropriate to reflect the uncertainties involved.[108]  The appellants accept that there is insufficient evidence to support a contingency of $180 000.
  1. [97]
    I accept that Mr Bligh was demonstrably wrong. He accepted as much. However, the further investigations undertaken after the initial Joint Report only serve to reduce the extent of uncertainty.
  1. [98]
    The appellants also rely on the potential for further defects, given the existing and extensive insect damage.
  1. [99]
    The building, including its structural elements, has been comprehensively and thoroughly assessed room by room, and item by item, in respect of its structural condition and the repairs that are likely to be necessary. The investigations have included:
  1. (a)
    no less than seven inspections by Mr Avery for the specific purpose of considering structural soundness issues – resulting in three engineering reports in addition to those produced for this appeal;
  1. (b)
    five inspections by Mr Bligh for the same purpose;
  1. (c)
    four to five inspections by Mr Frankel;
  1. (d)
    four to five inspections by Mr Chapman;
  1. (e)
    two sets of joint reports and various individual reports; and
  1. (f)
    an unspecified number of inspections by Mr Althaus.  It is apparent that his inspections have been thorough.  It is self-evidently in his interest to expose every aspect of structural damage he can. 
  1. [100]
    Moreover, as Mr Chapman observed, access to all areas of the house are readily available. The items for repair are timber, and quite easily repaired. Defects are easy to see. Walls are single skin such that both sides are visible. Access to the roof is readily available and the roof and roof structure have been thoroughly inspected. Floor linings have been removed, as have all furniture and similar items. The house does not, for example, have structure hidden behind brickwork or other linings.[109]
  1. [101]
    The purpose of a contingency is to cater for unknown or unforeseen defects with structural items.
  1. [102]
    The pine features of the house that are structural have been the subject of thorough investigations. The greatest potential for further cost on pine structural elements is the cost of replacing all of the flooring. This would result in an additional $11,160.
  1. [103]
    Similarly, within the range of items to which the parties have agreed should not trouble the court, substantial features of the house, including the tower and external stairs, are incorporated.
  1. [104]
    Overall, I consider that a contingency in the order of $20 000 to be more appropriate.  It makes greater allowance for the possibility that the entire floor will need replacing.  On balance, having regard to the extent of items already included and the level of investigation, I am not satisfied that any higher allowance is necessary.

Conclusion on structural soundness

  1. [105]
    In determining whether the building is reasonably capable of structural repair, the appellants urge the court to have regard to the quantum that has been found to be unreasonable in other cases. For the reasons explained in paragraph [35] above, I do not consider that approach to be appropriate.  What is reasonable in each case turns on the facts and circumstances of the case.
  1. [106]
    Even allowing a figure of $200 000, rather than $180 000, that figure represents only 15 per cent of the “as is” value of the property. 
  1. [107]
    There is no evidence of the underlying land value, nor the extent to which the “as is” value is lower than what would be expected for a property that did not have the extent of structural issues that are present here.
  1. [108]
    The appellants accept that there is no reliable evidence as to whether the relevant costs of structural repair would exceed the increase in value of the land, or whether the converse would occur.[110]
  1. [109]
    The valuer engaged by the appellants, Mr Kamitsis, note s:[111]

“... the current case involves a unique property in terms of the character of the home, the large land size and the elevated location which provides very good Bay views. In his experience, renovations to character homes are generally not undertaken for purely commercial reasons or with the sole intention of making a profit. The decision to renovate a dwelling such as the subject is often a lifestyle choice made by those who specifically want and are attracted to character homes. Renovators of character homes often take a long-term view on real estate ownership and the cost of repairs.”

  1. [110]
    There is no evidence that the costs of repair are such that renovation is not realistic, even taking a long-term view on real estate ownership and the cost of repairs.
  1. [111]
    Here, the building is one that is regarded as a “landmark”.  It is in a desirable location, due in part to the available views over the Bay.  It is large, and on a large block.  A different owner of the land may well be prepared to embark on a restoration of the house with the intention of enjoying it and its location.  It takes little in the way of imagination to envisage a hypothetical owner being prepared to absorb the structural repair costs into a restoration and renovation to bring the house up to contemporary standards and it becoming a very impressive home indeed.
  1. [112]
    There is no evidence of the type in other cases where builders have refused to “touch the place” or have provided exorbitant quotes that essentially involve complete reconstruction or replicating the building from the ground up.[112]
  1. [113]
    Having regard to the cost of the work that ought appropriately be considered as related to a structural repair as anticipated by the code, together with the fact that the work is quite feasible and readily achievable with standard building practice related to houses of this era, I am not persuaded that the building is not reasonably capable of being made structurally sound.

Does the street have traditional character?

  1. [114]
    The building is located at the corner of Kingsley Terrace and Wolsey Parade. The heritage experts agreed that the extent of streetscape relevant in this case includes:
  1. (a)
    both sides of Kingsley Terrace between Penfold and Picton Parades; and
  1. (b)
    both sides of Wolsey Parade between Stratton and Melville Terraces.[113]
  1. [115]
    Acceptable outcome AO5(d) raises for consideration whether the demolition is of a building in a street that has no traditional character.
  1. [116]
    It is not necessary that the street be “pristine”.[114]  It is, however, relevant to enquire whether the street in question has been robbed of its traditional character by the extent of redevelopment.[115]  In determining the street’s character, the task is to consider the visual character of the street as a whole, not the character of houses or groups of houses in isolation.[116]  To identify a street as having a mixed character is to still identify a single character applying in respect of an entire street under consideration.[117]
  1. [117]
    In the Joint Report of Heritage Architects, Mr Elliott (the heritage expert engaged by the appellants) opined that Kingsley Terrace and Wolsey Parade do not have traditional character because both streets only ever included a scattered distribution of pre-1947 houses and, in the interim period, this relatively sparse representation has been eroded with a number of the pre-1947 houses being replaced by more contemporary residences not consistent with traditional building form.
  1. [118]
    It is correct to say that the pre-1947 houses are interspersed irregularly along each streetscape and that the streetscape has changed over time.[118]  Since 1947, there has been removal of:
  1. (a)
    three pre-1947 houses on the northern side of Kingsley Terrace, proximate to the intersection with Picton Parade;
  1. (b)
    one pre-1947 house on the northern side of Kingsley Terrace, roughly opposite the subject building;
  1. (c)
    three pre-1947 houses on the southern side of Kingsley Terrace, including on the lot adjoining the subject site;
  1. (d)
    one house on the western side of Wolsey Parade, on the corner of Stratton Terrace; and
  1. (e)
    two houses on the eastern side of Wolsey Parade – one on the corner of Stratton Terrace and the other opposite the subject site on the south-eastern corner of Kingsley Terrace and Wolsey Parade.[119]
  1. [119]
    Those houses that have been removed have been replaced with “contemporary dwellings”.[120]
  1. [120]
    However, four of the seven houses in Wolsey Parade are traditional building character houses and 14 of the 35 houses in Kingsley Terrace are traditional building character houses.[121]  The traditional building character houses that remain in Kingsley Terrace are mostly grouped in three clusters not far from the intersection of Wolsey Parade and Kingsley Terrace.[122]
  1. [121]
    During cross-examination, Mr Elliott initially maintained his position that Kingsley Terrace and Wolsey Parade do not have traditional character, despite agreeing that at least some traditional character is evident and that the character of the street is mixed.[123]  However, after many attempts by Mr Elliott to avoid answering the direct and clear questions by Counsel for Council (and by the court), Mr Elliott conceded that it was not his position that Kingsley Terrace has no traditional character.  Kingsley Terrace and Wolsey Parade exhibit a mixed character.[124]
  1. [122]
    I do not regard the fact that the streetscape exhibits a range of building character, which includes some pre-1947 houses, nor the absence of a defined, unified or consistently traditional streetscape, evidences that the streetscape has no traditional character. There is no point at which a person walking along the street will not have a traditional character house in view. The traditional character houses are, in the main, readily identifiable as such to such a person.[125]  In my view, the street is one of mixed character comprising both traditional and modern character buildings.  I accept the opinion of Mr Kennedy that the subject building alone imparts considerable traditional character to both Wolsey Parade and Kingsley Terrace on account of its elevated and spacious setting.[126] 
  1. [123]
    In the circumstances, I am not satisfied that the appellants have demonstrated compliance with acceptable outcome AO5(d).

Will there be a loss of traditional building character?

  1. [124]
    In Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223; [2016] QPEC 3, Rackemann DCJ observed at 226 [8]:

“Insofar as AO5(c) is concerned, the reference to demolition not resulting in the loss of traditional building character should not be approached in absolute terms. 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 (see Unterweger (supra) at [29]). The relevant loss should be approached on the basis that it is one which is meaningful or significant (see Wallace v Brisbane City Council [2012] QPELR 689; [2012] QPEC 47 at [31]).”

(emphasis added)

  1. [125]
    Although the test ought not be regarded as absolute, in determining whether the loss is meaningful or significant, it is equally important not to lose sight of the overall outcomes and the intent of the Strategic Framework, which reinforce that character housing is important to the community and should be preserved.
  1. [126]
    The building is a high-set, timber framed house clad with a mixture of weatherboards and vertical boarding with semi-circular cover strips. It is supported on stumps or pairs of timber posts clad with weatherboards and has a corrugated metal roof in an intersecting gable form capped with a primary longitudinal ridge. It also has a distinctive lookout tower.[127]
  1. [127]
    The current roof form of the building is similar to that of the subject building apparent on a 1946 aerial photograph of the subject site. The heritage experts agree that it is of a unique design but generally consistent in its built form with a large scale variant of the Interwar Bungalow style of traditional house, examples of which were constructed across Brisbane between the end of World War I and up until the early 1930s.[128]
  1. [128]
    The building has been modified since 1946. The modifications include the enclosure of the undercroft spaces beneath the house as two additional tenancies and internal partitioning within the original core of the building to create four flats.[129]
  1. [129]
    Mr Kennedy’s opinion is that the demolition of the subject building will result in the loss of traditional building character. He regards the subject building as a “very fine example of a traditional ‘timber and tin’ high set bungalow”.[130]  He also regards the building as a very important component of the traditional character of both Wolsey Parade and Kingsley Terrace,[131] particularly because of its positive contribution to the street.[132]
  1. [130]
    In contrast, Mr Elliott’s opinion, in the joint report, is that the demolition of the subject building will not result in the loss of traditional building character “because the traditional character of the immediate streetscape of Kingsley Terrace has already been progressively eroded by the inclusion of post-1946 residences such that the demolition of the subject house would have no noticeable impact on the limited extent of traditional building character now remaining in this streetscape”.[133]  During cross-examination, Mr Elliott explained that his view was informed by the “immediate streetscape”, which he regarded as the southern side of Kingsley Terrace between Penfold Parade and Wolsey Parade.  There are six individual modern houses between the subject building and the pre-1947 house at the other end of the block.  Mr Elliott regarded this as demonstrating that the subject building was “isolated”.[134] 
  1. [131]
    I find Mr Elliott to be unpersuasive on this issue: he turns a blind eye to the balance of the agreed streetscape. Although there is some distance between the subject building and the other character house on the southern side of Kingsley Terrace between Penfold Parade and Wolsey Parade, there is a large character house on the adjoining lot to the south (fronting Wolsey Parade) and a cluster of four character houses diagonally opposite the subject site (on the north-eastern corner, and along the northern side, of Kingsley Terrace).[135]  There is virtually no point at which the hypothetical person walking along either of the streets would not have a building that exhibits traditional building character within view.[136]
  1. [132]
    That the loss of the building would be material is also demonstrated by the fact that the local residents regard the building as a “local landmark” and an “architecturally and historically significant residence in the district” located on a “popular local thoroughfare”.  Mr Elliott did not quibble with these opinions expressed by the locals: he simply disregarded them as he did not consider them to be relevant to the matters raised in the planning scheme.[137]  I disagree.  They reinforce the significance of the loss of traditional building character were the subject building to be demolished.
  1. [133]
    I am not satisfied that acceptable outcome AO5(c) is met.

Does the building contribute positively to the visual character of the street?

  1. [134]
    In Se Ayr v Brisbane City Council [2016] QPELR 223; [2016] QPEC 3, Rackemann DCJ observed at 225 [7]:

“Insofar as PO5(c) is concerned, the expression contribute “positively” should be interpreted in the way indicated by Bowskill DCJ in Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45; namely, whether the contribution is a positive one in that it adds to the visual character of the street rather than being neutral. Further, as her Honour also pointed out, the relevant provision focuses upon the visual character of the street rather than simply upon that part of the street covered by the traditional building overlay. Hence, it is relevant, when considering that provision, to have regard not just to the buildings within the street which represent traditional building character, but other development in the street as well which in this case, includes the multi-unit dwellings.”

(emphasis added)

  1. [135]
    In ascertaining the importance of a house to the visual character of the street, the exercise ‘should be approached from the perception of an average person walking along the street and looking about’.[138] 
  1. [136]
    In Lonie v Brisbane City Council [1998] QPELR 209, Skoien DCJ stated at 212:[139]

“I thought the evidence of Mr Scott, Mr Kennedy and Mr Ross, gave valuable assistance on the question I have to decide under para. (vii). In a nutshell, it is this: would the average person walking the street and looking about, with a perception which falls somewhere between that of a Ph. D in Architectural History on the one hand and that of a Philistine on the other, think of Hewitt Street "This is a pretty typical old Brisbane Street”? As I have said, I think he would. Having said that, would that person look at No. 29 and say “And that is the sort of ‘workers cottage’ they built in those days in streets like this”. That person would then undoubtedly note that it was the only workers cottage in the street. Would that person regard No. 29, in those circumstances, as important to the visible character of Hewitt Street? I think he would. That having been said, it seems to me to be immaterial that this person might add, “Pity about the alterations”.”

(emphasis added)

  1. [137]
    Mr Elliott’s opinion is that the building does not contribute positively to the visual character of both Kingsley Terrace and Wolsey Parade. He provides three reasons for his opinion, namely:[140]
  1. (a)
    the prevailing streetscape character of both Kingsley Terrace and Wolsey Parade is predominantly modern, with only a limited extent of pre-1947 houses remaining;[141]
  1. (b)
    the subject building is a large-scale building set on a large lot, which he regards as having a negative impact because of its inconsistency with the predominance of small lots, which opinion he largely based on his understanding of the Traditional building character planning scheme policy;[142] and
  1. (c)
    the built form of the subject building has been altered to convert it into flats, which has a negative impact in an area where individual dwelling houses prevail and it is in a poor state of repair.[143]
  1. [138]
    I regard the streetscape as mixed in character. As is noted at paragraph [131] above, there is virtually no point at which the hypothetical person walking along either of the streets would not have a building that exhibits traditional building character within view.[144]
  1. [139]
    As for the inconsistency of the scale of the building, it is true to say that the subject building is the largest in the streetscape. However, the Traditional building character planning scheme policy does not require consistency in scale. The policy provides that:
  1. (a)
    the traditional scale of a street “can be” diminished if buildings are introduced that significantly exceed surrounding building height, or are otherwise discordant;[145]
  1. (b)
    scale “can also” be affected by introducing buildings or lots that are significantly smaller than the prevailing size of dwelling houses and subdivision patterns;[146] and
  1. (c)
    the setting of new buildings can detract from the character of a street if orientation or setbacks conflict with traditional settings.[147]
  1. [140]
    There is no discernible basis for the interpretation that Mr Elliott claims to have relied upon.
  1. [141]
    Further, I do not regard the subject building as having a negative impact on the visual character of the street by virtue of its scale and setting on a large lot. Although there is a predominance of small lots, another feature evident in the streetscape is the existence of comparatively large houses on large corner lots on Wolsey Parade, including the lot directly adjoining (and to the south of) the subject site.[148] 
  1. [142]
    I do not find Mr Elliott’s position with respect to the state of repair of the building and the alterations to it to be compelling. It is not necessary that the dwelling be “pristine” in order for demolition to be refused.[149]  Further, the photos of the building do not support Mr Elliott’s opinion that the conversion of the dwelling to flats would be obvious to the casual passer-by.[150]  The alterations are not of a kind that might prevent an informed observer readily imaging the original presentation of the house.[151]
  1. [143]
    The subject building is, as Mr Kennedy describes it, one of “fine traditional character and well detailed gabled bungalow roof with distinctive lookout tower contributes positively to the traditional character evident in both streets”.[152]  The contribution is important, given the building is a relatively large one located on a relatively large block in a prominent position.[153]  Its importance is reinforced by the fact that it  is appreciated by the local residents as a “local landmark”.[154]
  1. [144]
    I am not satisfied that the appellants have demonstrated compliance with acceptable outcome AO5(d).

Does the development comply with the overall outcomes?

  1. [145]
    As to overall outcome 2(a), Mr Elliott’s opinion was again reliant upon his thesis that the traditional character of the “surrounding area” has “never been extensive” (despite the extent of development evident in Figure 1(a) of the Joint Report), and has been eroded.[155]  Mr Kennedy considered that the building was a pre-1947 one that made a significant contribution to the character of the relevant streets (all of which are in the overlay). 
  1. [146]
    For the reasons outlined above with respect to the character of the streetscape, the impact of loss of the building and the contribution the building makes to the street, the proposed development does not comply with overall outcome 2(a).
  1. [147]
    Overall Outcome 2(d) seeks the protection of a building where it forms an important part of a streetscape established in 1946 or earlier. Mr Elliott’s approach again asserted that conflict would not arise because “Kingsley Terrace now comprises a predominance of post-1946 buildings, which are not intended to be preserved by (City Plan)” and the building “consequently” represents an unimportant part of the “predominantly post-1946 streetscape”.  For the reasons outlined above with respect to the character of the streetscape, the impact of loss of the building and the contribution the building makes to the street, I do not find Mr Elliott’s opinion persuasive.  In my view, the proposed development does not comply with overall outcome 2(a). 

Conflict with the Wynnum-Manly neighbourhood plan code

  1. [148]
    There is consistency between the Strategic framework’s strategic outcomes indication that “Character housing provides a link with Brisbane's history and helps to reinforce a strong sense of place and community identity”[156] and overall outcome 3(b) of the Wynnum-Manly neighbourhood plan code that the locality “retains its strong sense of place including the area’s relationship to Moreton Bay, its buildings, seaside landscapes, (and) sense of community identity”.
  1. [149]
    Council submits that the provisions should be sensibly construed as referring to those that are of some local significance.
  1. [150]
    In terms of the local significance of the building, Council relies on Mr Kennedy’s report. His report identifies the historical features of the building, including its strong association with John Darnell, its original owner, a well-known local identity and community benefactor. It was constructed for him to include the tower. It was known as “Tower House”, reinforcing its local landmark status.  As an example, a newspaper report in 1934 referred to the Anzac Day procession having commenced at “Tower House”.[157]  The Wynnum-Manly Historical Society has published local recollections about its history, including recollections of a lamp having been placed in the tower each night that, in combination with another light in Stratton Terrace, served as beacons for returning fishermen.[158]
  1. [151]
    Mr Kennedy observes:[159]

“Although Tower House has been converted to flats it retains most of its original features and is reasonably intact.  It is a considerable landmark and has aesthetic quality on accounts of its elevated position on the corner of two streets and its notable architectural design incorporating a distinctive tower overlooking Moreton Bay.

It is recognised still for its landmark qualities as a house with a lookout tower as a recent report in the local newspaper shows.”

  1. [152]
    Submissions in relation to the proposal reinforce Mr Kennedy’s opinion. Despite the proposal being code assessable, it nevertheless attracted community opposition to the demolition of this local “landmark”.[160]
  1. [153]
    The appellants submit that:
  1. (a)
    the statement relied upon is a very general one speaking about broad and amorphous values or considerations that are incapable, in themselves, of being applied with any particular precision;
  1. (b)
    when one looks closely through the balance of the code including, most importantly, the performance criteria and acceptable outcomes, there is simply nothing in any of that material which deals directly, indirectly or inferentially with the demolition of a residential dwelling;
  1. (c)
    if a proposed demolition, which is directly and precisely regulated by the traditional building character overlay code, meets the requirements of that code so as to allow demolition to proceed, it ought to be concluded that, construing the planning scheme as a whole, and requiring it to achieve harmonious goals, the demolition cannot be construed to be nevertheless contrary to the neighbourhood plan code by reason of the provision relied upon by Council; and
  1. (d)
    that is so because that would necessarily lead to an incongruous and illogical result that demolition of a building which is permitted either because of its structural conditional or because of its lack of contribution to traditional streetscape character, both quite precise and site-specific matters, should nevertheless be refused because, despite having those negative or relevantly inconsequential qualities which permit its demolition, it is nevertheless important in some way to the “strong sense of place” of Wynnum Manly.[161]
  1. [154]
    However, the appellants submit that, applying the ordinary principles of statutory construction,[162] and bearing in mind that nothing in the neighbourhood code deals explicitly with any issue about demolition:
  1. (a)
    a proposed demolition, which is found to comply with the Traditional building character (demolition) overlay code, is one that is necessarily consistent with and, in that sense, compliant with the purpose stated in s 7.3.23.6.2(3)(b) of the neighbourhood plan code, because a building meeting the criteria for demolition is not one which is necessary to be retained in order to achieve or secure a “strong sense of place” for the plan area as a whole; and
  1. (b)
    that result may be achieved either by reading the provisions together in the way just indicated or by more specific application of the principle generalia specilibus non derogant.[163]
  1. [155]
    The Council accepts that if there is no conflict with the Traditional building character (demolition) overlay code on the basis that the building is not reasonably capable of being made structurally sound, it would be an illogical result to nevertheless dismiss the appeal on the basis of only conflict with the neighbourhood plan code. In those circumstances, Council accepted that it would not be in the public interest to nevertheless maintain the building and that would constitute a ground sufficient to overcome conflict with the neighbourhood plan code. [164]
  1. [156]
    It seems to me that there is considerable force in the submissions made by the appellants on this issue. To the extent that overall outcomes (3)(a), (b) and (g) of the Wynnum-Manly neighbourhood plan code seek to retain the area’s unique character and its sense of community identity, those outcome are apparently achieved by the inclusion of land in the Traditional building character (demolition) overlay and the application of the Traditional building character (demolition) overlay code. Absent the provisions in the Traditional building character (demolition) overlay code, it is difficult to appreciate how such a general provision could found a clearly identifiable conflict. Having said that, the overall outcomes reinforce the importance of traditional building character houses and may well indicate that, where the building is one important to the strong sense of place of Wynnum-Manly, the level of conflict with City Plan ought be regarded as serious. 
  1. [157]
    However, in light of my findings with respect to conflict with the Traditional building character (demolition) overlay code, it is unnecessary for me to finally resolve this interpretation issue.
  1. [158]
    For the reasons provided above with respect to the conflict with the Traditional building character (demolition) overlay code, I am also satisfied that the proposed development does not comply with the identified overall outcomes in the Wynnum-Manly neighbourhood plan code.

Conclusion

  1. [159]
    For the reasons provided, a decision to approve the proposed development would conflict with City Plan. No grounds have been advanced to justify approval despite such conflicts.
  1. [160]
    In the circumstances, the appeal is dismissed.

Footnotes

[1]  Joint Report of Heritage Architects – Exhibit 7 p 1 [3].

[2]  Joint Report of Heritage Architects – Exhibit 7 p 4 [16].

[3]  Joint Report of Heritage Architects – Exhibit 7 p 5 [19] and [20].

[4]  Development Application Planning Report – Exhibit 11 p 7 [2.2].

[5]  Development Application Planning Report – Exhibit 11 p 8.

[6]  Joint Report of Heritage Architects – Exhibit 7 p 1[2].

[7]Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273, 286 [23]; [2005] QCA 262; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] 185 LGERA 63, 72 [16]; [2012] QPELR 354; [2011] QCA 358.

[8]Sustainable Planning Act 2009, s 493.

[9]  Joint Report of Heritage Architects – Exhibit 7 p 1 [3].

[10]  Exhibit 1A.

[11]  See Planning Scheme Extracts – Exhibit 1 p 73 s 8.2.21.2(1).

[12]  See Planning Scheme Extracts – Exhibit 1 p 1 s 3.4.1(1).

[13]  See Planning Scheme Extracts – Exhibit 1 pp 8 - 9.

[14]  See Planning Scheme Extracts – Exhibit 1 pp 8 - 9.

[15]  See Planning Scheme Extracts – Exhibit 1 p 25 - 26 s 3.7.1(1).

[16]  See Planning Scheme Extracts – Exhibit 1 pp 25 - 26 s 3.7.1(1)(g)(iii).

[17]  See Planning Scheme Extracts – Exhibit 1 pp 25 - 26 s 3.7.1(1)(g)(iv).

[18]  See Planning Scheme Extracts – Exhibit 1 p 42 s 3.7.6 Land use strategy L1.

[19]  See Planning Scheme Extracts – Exhibit 1 p 60 s 6.2.1.5.

[20]  See Planning Scheme Extracts – Exhibit 1 p 60 s 6.2.1.5(1).

[21]  See Planning Scheme Extracts – Exhibit 1 p 60 s 6.2.1.5(2).

[22]  See Planning Scheme Extracts – Exhibit 1 p 60 s 6.2.1.5(2)(c).

[23]  See Planning Scheme Extracts – Exhibit 1 p 60 s 6.2.1.5(5)(b).

[24]  See Planning Scheme Extracts – Exhibit 1 p 60 s 6.2.1.5(6)(a).

[25]  See Planning Scheme Extracts – Exhibit 1 p 73 s 8.2.21.2(2).

[26]  See Planning Scheme Extracts – Exhibit 1 pp 74 – 75.

[27]  Submissions of the Appellant p 32 [170].

[28]  See Planning Scheme Extracts – Exhibit 1A.

[29]  Appeal Book – Exhibit 1 p 53.

[30]  Planning Scheme Extracts – Exhibit 1 p 63 s 7.2.23.6(3).

[31]  Joint Report of Heritage Architects – Exhibit 7 p 2 [9] and p 5 [18]; T2-85/L28-29 (Elliott).

[32]  Joint Report of Heritage Architects – Exhibit 7 p 4 [16].

[33]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 603 [15]; [2006] QPEC 44.

[34]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 605 [31]; [2006] QPEC 44.

[35]Gould v Brisbane City Council [2001] QPELR 77, 80 [21]; Armstrong v Brisbane City Council [2003] QPELR 475, 479 [24]; Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 602 [10]; [2006] QPEC 44; Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147, 149 [15]; [2007] QPEC 93.

[36]Gould v Brisbane City Council [2001] QPELR 77, 80 [21]; Armstrong v Brisbane City Council [2003] QPELR 475, 479 [24].

[37]Armstrong v Brisbane City Council [2003] QPELR 475, 479 [26].

[38]Gould v Brisbane City Council [2001] QPELR 77, 80 [22].

[39]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 603 [14]; [2006] QPEC 44.

[40]Gould v Brisbane City Council [2001] QPELR 77, 80 [23]; Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 604 [22]; [2006] QPEC 44.

[41]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 604 [23]; [2006] QPEC 44; Farrah v Brisbane City Council [2016] QPELR 449, 454 [19]; [2016] QPEC 19.

[42]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 605 [32]; [2006] QPEC 44.

[43]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 604-5 [29]; [2006] QPEC 44.

[44]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 606 [42]; [2006] QPEC 44.

[45]Gould v Brisbane City Council [2001] QPELR 77, 80 [23]; Armstrong v Brisbane City Council [2003] QPELR 475, 479-80 [27].

[46]Farrah v Brisbane City Council [2016] QPELR 449, 451 [7] and 454 [19]; [2016] QPEC 19.

[47]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 603 [20]; [2006] QPEC 44.

[48]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 606 [39]; [2006] QPEC 44.

[49]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 603 [16]; [2006] QPEC 44.

[50]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 604 [26]; [2006] QPEC 44.

[51]  Submissions of the Appellant p 6 [26(c)].

[52]  T2-34/L1-6 (Bligh).

[53]  Submissions of the Respondent p 25 [88] and [89].

[54]  T2-4/L23-35 (Bligh).

[55]  See Sustainable Planning Act 2009, s 703 and s 704.

[56]  Joint Report of Structural Engineers – Exhibit 3 p 4 [7].

[57]  Joint Report of Structural Engineers – Exhibit 3 p 4 [7].

[58]  Joint Report of Structural Engineers – Exhibit 3 p 3 [2(D)].

[59]  Joint Report of Structural Engineers – Exhibit 3 p 5 [9(A)].

[60]  Joint Report of Structural Engineers – Exhibit 3 p 3 [2(C)].

[61]  T2-4/L4-21.

[62]  Joint Report of Property Valuers – Exhibit 8 p 3 [9].

[63]  Joint Report of Structural Engineers – Exhibit 3 p 4 [7] and p 5 [9(A)].

[64]  See summary in Joint Cost Report – Exhibit 5 p 15 and the detail of each item in the Joint Report of Structural Engineers – Exhibit 3 pp 5 – 8.  See also further costs in Exhibit 6 and Exhibit 18.  See also summary in the Submissions of the Respondent pp 28 – 31 [105] – [115].

[65]  Submissions of the Appellant p 10 [40].

[66]  T2-3/L20-29.

[67]  Exhibit 11 p 69.

[68]  T1-33/L43 – T1-34/L19 (Avery).

[69]  T1-36/L35 – T1-37/L7 (Avery).

[70]  T1-41/L20 – T1-51/L31 (Avery).

[71]  T1-41/L4-13 (Avery).

[72]  T2-41/L10-14 (Avery).

[73]  T1-41/L20 – T1-51/L31 (Avery).

[74]  T2-12/L 3-6 (Bligh).

[75]  T2-27/L 19 – T2-28/L 43 and Exhibit 16 [16].

[76]  Exhibit 16 [16].

[77]  Joint Report of Structural Engineers – Exhibit 3 p 4 [8(A)].

[78]  Joint Report of Structural Engineers – Exhibit 3 p 4 [8(B)].

[79]  T2-37/L8-16 (Bligh).

[80]  T2-37/L30-34 (Bligh).

[81]  T2-47/L30 – T2-48/L13 (Frankel) and T2-56/L39-45 (Chapman).

[82]  T2-12/L16-26 (Bligh).

[83]  T2-12/L16-26 and L43-46.  See also T2-13/L1-3 (Bligh).

[84]  T2-12/L16-26 and T2-18/L19 – T2-19/L24 (Bligh).

[85]  Exhibit 14 p 5.

[86]  Exhibit 14 p 6.

[87]  Exhibit 14.

[88]  Submissions of the Appellant p 20 [102].

[89]  T1-38/L41 – T1-40/L3 (Avery).

[90]  T2-8/L27-29 (Bligh).

[91]  T2-33/L27-32 (Bligh).

[92]Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 606 [39]; [2006] QPEC 44.

[93]  T1-40/L5 – T1-41/L2 (Avery).

[94]  T2-33/L41 – T2-34/L18 (Bligh).

[95]  See also Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601, 606 [39]; [2006] QPEC 44.

[96]  T1-36/L35 – T1-37/L7 (Avery).

[97]  Exhibit 10.

[98]  T2-51/L30-45 (Frankel).

[99]  Joint Report of Structural Engineers – Exhibit 3 p 8 [40].

[100]  T2-59/L38-39 (Chapman).

[101]  T1-53/L41 – T1-54/L8 (Avery).

[102]  Report of Mr Chapman – Exhibit 18 p 3.

[103]  T2-52/L19-26 (Frankel).

[104]  T2-52/L28-34 (Frankel).

[105]  T1-33/L22-27 (Avery).

[106]  T2-52/L36 – T2-53/L10 (Frankel).

[107]  Exhibit 15.

[108]  Submissions of the Appellant pp 24 – 26 [127] – [140].

[109]  T2-59/L27-36 (Chapman).

[110]  Joint Report of Property Valuers – Exhibit 8 p 5 [19]; T3-14/L37 – T1-15/L6.

[111]  Joint Report of Property Valuers – Exhibit 8 p 5 [20].

[112]Gould v Brisbane City Council [2001] QPELR 77, 79 [8].

[113]  Joint Report of Heritage Architects – Exhibit 7 p 3 [14].

[114]Unterweger v Brisbane City Council [2012] QPELR 335, 338 [10]; [2011] QPEC 134; Lonie v Brisbane City Council [1998] QPELR 209, 211.

[115]Unterweger v Brisbane City Council [2012] QPELR 335, 338 [10]; [2011] QPEC 134.

[116]Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [29]; [2016] QPEC 42 citing Leach v Brisbane City Council [2011] QPELR 609, [34]; [2011] QPEC 55.

[117]Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [30]; [2016] QPEC 42.

[118]  Exhibit 20 and T2-65/L13 – T2-66/L26 (Elliott).

[119]  Joint Report of Heritage Architects – Exhibit 7 pp 3 – 4 [15] and Figures 1(a), 1(b) and 1(c).

[120]  T2-66/L4-26 (Elliott).

[121]  Joint Report of Heritage Architects – Exhibit 7 p 6 [22.2] (Kennedy).

[122]  Joint Report of Heritage Architects – Exhibit 7 p 6 [22.2] (Kennedy).

[123]  T2-73/L1-32 (Elliott).

[124]  T2-1-76/L1 – T2-77/L26 (Elliott).

[125]  See photos in Development Application Planning Report - Exhibit 11 pp 52 – 57.

[126]  Joint Report of Heritage Architects – Exhibit 7 p 7 [22.2] (Kennedy).

[127]  Joint Report of Heritage Architects – Exhibit 7 p 5 [18].

[128]  Joint Report of Heritage Architects – Exhibit 7 p 4 [17].

[129]  Joint Report of Heritage Architects – Exhibit 7 p 5 [19] and [20].

[130]  Joint Report of Heritage Architects – Exhibit 7 p 6 [21.2] (Kennedy).

[131]  Joint Report of Heritage Architects – Exhibit 7 p 6 [21.2] (Kennedy).

[132]  T2-99/L3-17 (Kennedy).

[133]  Joint Report of Heritage Architects – Exhibit 7 p 6 [21.1] (Elliott).

[134]  T2-77/L37 – T2-78/L14 (Elliott).

[135]  Exhibit 21; Joint Report of Heritage Architects – Exhibit 7 pp 3 – 4 [15] and Figures 1(a), 1(b) and 1(c); T2-79/L20-23 (Elliott).

[136]  T2-77/L31-35 (Elliott).

[137]  T2-79/L37 – T2-82/L3 (Elliott).

[138]Lucas v Brisbane City Council [2015] QPELR 671, 675 [26]; [2015] QPEC 25 citing Lonie v Brisbane City Council [1998] QPELR 209, 212.  See also Kevin McSweeney Pty Ltd v Brisbane City Council [2012] QPELR 295, 305 [64] and 308 [94]; [2011] QPEC 138 and Mariott v Brisbane City Council [2015] QPELR 910, 922 [54]; 2015 QPEC 45.

[139]  See also Leach v Brisbane City Council [2011] QPELR 609, 619 [36] – [38]; [2011] QPEC 55.

[140]  Joint Report of Heritage Architects – Exhibit 7 p 6 [23.1] (Elliott).

[141]  T2-82/L5-19 (Elliott).

[142]  T2-82/L21 – T2-84/L42 (Elliott).

[143]  T2-84/L46 – T2-86/L8 (Elliott).

[144]  T2-77/L31-35 (Elliott).

[145]  Planning Scheme Extracts – Exhibit 1A s 2.4(2).

[146]  Planning Scheme Extracts – Exhibit 1A s 2.4(3).

[147]  Planning Scheme Extracts – Exhibit 1A s 2.5(2).

[148]  Exhibit 21.

[149]Unterweger v Brisbane City Council [2012] QPELR 335 at 338 [10]; [2011] QPEC 134.

[150]  T2-84/L46 – T2-85/L15 (Elliott).

[151]Unterweger v Brisbane City Council [2012] QPELR 335 at 338 [10]; [2011] QPEC 134.

[152]  Joint Report of Heritage Architects – Exhibit 7 p 6 [23.2] (Kennedy).

[153]  T2-85/L31-37 (Elliott).

[154]  Exhibit 9.

[155]  Joint Report of Heritage Architects – Exhibit 7 p 6 [24.1] (Kennedy).

[156]  Planning Scheme Extracts – Exhibit 1 p 1 s 3.4.1(1)(c).

[157]  Report of Mr Kennedy – Exhibit 22 p 5 [3.2].

[158]  Report of Mr Kennedy – Exhibit 22 p 5 [3.2].

[159]  Report of Mr Kennedy – Exhibit 22 p 6 [3.5] and [3.6].

[160]  Exhibit 9.

[161]  Submissions for the Appellant p 33 [172].

[162]  The approach to the interpretation of City Plan is guided by the relevant principles of construction summarised in Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147.

[163]  Submissions for the Appellant p 34 [173].

[164]  T3-24/L15-24.

Close

Editorial Notes

  • Published Case Name:

    Althaus & Anor v Brisbane City Council

  • Shortened Case Name:

    Althaus v Brisbane City Council

  • MNC:

    [2017] QPEC 41

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    21 Jul 2017

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
5 citations
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Cite 1 - [2003] QPELR 475
Cite 2 - [2003] QPELR 475
Cite 3 - [2003] QPELR 475
Cite 4 - [2003] QPELR 475
Cite 5 - [2003] QPELR 475
Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPEC 44
16 citations
Jump To
Cite 1 - [2006] QPEC 44
Cite 2 - [2006] QPEC 44
Cite 3 - [2006] QPEC 44
Cite 4 - [2006] QPEC 44
Cite 5 - [2006] QPEC 44
Cite 6 - [2006] QPEC 44
Cite 7 - [2006] QPEC 44
Cite 8 - [2006] QPEC 44
Cite 9 - [2006] QPEC 44
Cite 10 - [2006] QPEC 44
Cite 11 - [2006] QPEC 44
Cite 12 - [2006] QPEC 44
Cite 13 - [2006] QPEC 44
Cite 14 - [2006] QPEC 44
Cite 15 - [2006] QPEC 44
Cite 16 - [2006] QPEC 44
Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPELR 601
16 citations
Jump To
Cite 1 - [2006] QPELR 601
Cite 2 - [2006] QPELR 601
Cite 3 - [2006] QPELR 601
Cite 4 - [2006] QPELR 601
Cite 5 - [2006] QPELR 601
Cite 6 - [2006] QPELR 601
Cite 7 - [2006] QPELR 601
Cite 8 - [2006] QPELR 601
Cite 9 - [2006] QPELR 601
Cite 10 - [2006] QPELR 601
Cite 11 - [2006] QPELR 601
Cite 12 - [2006] QPELR 601
Cite 13 - [2006] QPELR 601
Cite 14 - [2006] QPELR 601
Cite 15 - [2006] QPELR 601
Cite 16 - [2006] QPELR 601
Farrah v Brisbane City Council [2016] QPEC 19
5 citations
Jump To
Cite 1 - [2016] QPEC 19
Cite 2 - [2016] QPEC 19
Cite 3 - [2016] QPEC 19
Cite 4 - [2016] QPEC 19
Cite 5 - [2016] QPEC 19
Farrah v Brisbane City Council [2016] QPELR 449
5 citations
Jump To
Cite 1 - [2016] QPELR 449
Cite 2 - [2016] QPELR 449
Cite 3 - [2016] QPELR 449
Cite 4 - [2016] QPELR 449
Cite 5 - [2016] QPELR 449
Gould v Brisbane City Council [2001] QPELR 77
7 citations
Jump To
Cite 1 - [2001] QPELR 77
Cite 2 - [2001] QPELR 77
Cite 3 - [2001] QPELR 77
Cite 4 - [2001] QPELR 77
Cite 5 - [2001] QPELR 77
Cite 6 - [2001] QPELR 77
Cite 7 - [2001] QPELR 77
Kanesamoorthy v Brisbane City Council [2016] QPEC 42
3 citations
Jump To
Cite 1 - [2016] QPEC 42
Cite 2 - [2016] QPEC 42
Cite 3 - [2016] QPEC 42
Kanesamoorthy v Brisbane City Council [2016] QPELR 784
3 citations
Jump To
Cite 1 - [2016] QPELR 784
Cite 2 - [2016] QPELR 784
Cite 3 - [2016] QPELR 784
Ken Ryan & Associates Pty Ltd v Brisbane City Council [2007] QPEC 93
2 citations
Jump To
Cite 1 - [2007] QPEC 93
Cite 2 - [2007] QPEC 93
Ken Ryan & Associates Pty Ltd v Brisbane City Council (2008) QPELR 147
2 citations
Jump To
Cite 1 - (2008) QPELR 147
Cite 2 - (2008) QPELR 147
Kevin McSweeney Pty Ltd v Brisbane City Council [2011] QPEC 138
2 citations
Jump To
Cite 1 - [2011] QPEC 138
Cite 2 - [2011] QPEC 138
Kevin McSweeney Pty Ltd v Brisbane City Council [2012] QPELR 295
2 citations
Jump To
Cite 1 - [2012] QPELR 295
Cite 2 - [2012] QPELR 295
Leach v Brisbane City Council [2011] QPEC 55
3 citations
Jump To
Cite 1 - [2011] QPEC 55
Cite 2 - [2011] QPEC 55
Cite 3 - [2011] QPEC 55
Leach v Brisbane City Council [2011] QPELR 609
3 citations
Jump To
Cite 1 - [2011] QPELR 609
Cite 2 - [2011] QPELR 609
Cite 3 - [2011] QPELR 609
Lockyer Valley Regional Council v Westlink [2012] QPELR 354
1 citation
Jump To
Cite 1 - [2012] QPELR 354
Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358
1 citation
Jump To
Cite 1 - [2011] QCA 358
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors (2011) 185 LGERA 63
1 citation
Jump To
Cite 1 - (2011) 185 LGERA 63
Lonie v Brisbane City Council (1998) QPELR 209
4 citations
Jump To
Cite 1 - (1998) QPELR 209
Cite 2 - (1998) QPELR 209
Cite 3 - (1998) QPELR 209
Cite 4 - (1998) QPELR 209
Lucas v Brisbane City Council [2015] QPEC 25
2 citations
Jump To
Cite 1 - [2015] QPEC 25
Cite 2 - [2015] QPEC 25
Lucas v Brisbane City Council [2015] QPELR 671
2 citations
Jump To
Cite 1 - [2015] QPELR 671
Cite 2 - [2015] QPELR 671
Mariott v Brisbane City Council [2015] QPEC 45
3 citations
Jump To
Cite 1 - [2015] QPEC 45
Cite 2 - [2015] QPEC 45
Cite 3 - [2015] QPEC 45
Mariott v Brisbane City Council [2015] QPELR 910
3 citations
Jump To
Cite 1 - [2015] QPELR 910
Cite 2 - [2015] QPELR 910
Cite 3 - [2015] QPELR 910
Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPEC 3
3 citations
Jump To
Cite 1 - [2016] QPEC 3
Cite 2 - [2016] QPEC 3
Cite 3 - [2016] QPEC 3
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 [2011] QPEC 134
5 citations
Jump To
Cite 1 - [2011] QPEC 134
Cite 2 - [2011] QPEC 134
Cite 3 - [2011] QPEC 134
Cite 4 - [2011] QPEC 134
Cite 5 - [2011] QPEC 134
Unterweger v Brisbane City Council [2012] QPELR 335
6 citations
Jump To
Cite 1 - [2012] QPELR 335
Cite 2 - [2012] QPELR 335
Cite 3 - [2012] QPELR 335
Cite 4 - [2012] QPELR 335
Cite 5 - [2012] QPELR 335
Cite 6 - [2012] QPELR 335
Wallace v Brisbane City Council [2012] QPEC 47
1 citation
Jump To
Cite 1 - [2012] QPEC 47
Wallace v Brisbane City Council [2012] QPELR 689
1 citation
Jump To
Cite 1 - [2012] QPELR 689
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
2 citations
Jump To
Cite 1 - [2005] QCA 262
Cite 2 - [2006] 1 Qd R 273
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
1 citation
Jump To
Cite 1 - [2014] QCA 147
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
1 citation
Jump To
Cite 1 - [2014] QPELR 686
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
1 citation
Jump To
Cite 1 - (2014) 201 LGERA 82

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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