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Klinkert v Brisbane City Council[2018] QPEC 30

Klinkert v Brisbane City Council[2018] QPEC 30

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Klinkert v Brisbane City Council [2018] QPEC 30

PARTIES:

STEPHEN KLINKERT

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

Appeal No. BD3458/17

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

15 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16-18 May 2018

JUDGE:

Williamson QC DCJ

ORDER:

It is ordered that:

  1. By 4pm on 6 July 2018 the Respondent is to deliver a draft suite of conditions to the Appellant.
  2. The Appeal be listed for review at 9:15am on 20 July 2018.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of proposed demolition of a dwelling house in the LMR zone and the Traditional building character overlay – whether the dwelling house is properly characterised as traditional building character – where development application was decided under the Sustainable Planning Act 2009 assessment regime but appeal commenced under the Planning Act 2016 – whether appeal to be decided under the Planning Act 2016 assessment regime - whether the development application must be approved by operation of s.60(2)(a) of the Planning Act 2016 – weight to be given to amended planning documents – whether discretion conferred by s.60(2)(b) of the Planning Act 2016 should be exercised in favour of approval

LEGISLATION:

Planning Act 2016, ss 29, 43, 45 and 60

Planning & Environment Court Act 2016, ss. 45 and 46

Sustainable Planning Act 2009, ss 108, 109 and 313

CASES:

Histpark Pty Ltd & Anor v Council of the Shire of Maroochy (2002) QPELR 134

Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21

Mariott v Brisbane City Council (2015) QPELR 910

Vadale Pty Ltd v Landsborough Shire Council (1985) QPLR 338

COUNSEL:

D Gore QC and M Batty for the appellant

B Job QC and T Trotter for the respondent

SOLICITORS:

Broadley Rees Hogan for the appellant

City Legal for the respondent

Introduction

  1. [1]
    The Appellant is the owner of land situated at 40 Archer Street, Toowong (“the land”). The land is improved with a dwelling house constructed prior to 1947[1] and designed in the English Tudor revival style.[2] The building fabric comprises face brick with rendered masonry feature elements and a tiled roof.[3]
  2. [2]
    The dwelling house is an attractive high quality piece of architecture.[4] It forms part of a cohesive group of five contiguous inter-War houses that are situated at the southeastern end of Archer Street.[5] The dwelling house is visually prominent within the group of five houses. The group of houses is a strong contributor to the character of Archer Street taken as a whole.
  3. [3]
    In late June 2017, the Appellant made a code assessable development application to the Respondent for a development approval for building works to authorise the demolition of the dwelling house. The application was required because the demolition works were proposed on land included in the Traditional building character overlay in the Respondent’s planning scheme, City Plan 2014 (“City Plan 2014”). The application was properly made on 30 June 2017.[6]
  4. [4]
    The Sustainable Planning Act 2009 (“SPA”) was in force at the date the Appellant made his application. SPA mandated that the Respondent as assessment manager must assess and decide the application having regard to the applicable codes identified in City Plan 2014.[7] The code central to the assessment and decision making process was the Traditional building character (demolition) overlay code (“the Demolition code”).
  5. [5]
    On 15 August 2017,[8] the Respondent’s delegate decided to refuse the Appellant’s development application. The reasons for refusal confirm that the delegate decided that a decision to approve the application would conflict with the Demolition code, in particular Performance Outcome PO5 and its accompanying Acceptable Outcome A05.[9] A finding that is fundamental to, and underpins, the delegate’s decision is that the dwelling house is regarded as traditional building character for the purposes of the Demolition code.
  6. [6]
    This is an appeal against the delegate’s decision to refuse the application.
  7. [7]
    It is for the Appellant to establish that the appeal should be upheld.[10]

The land and surrounding locality

  1. [8]
    The land is 1,348 m2 in size and comprises three contiguous allotments[11]. It has frontage to Archer Street to the west and the Brisbane River to the east.
  2. [9]
    The dwelling house on the land was constructed in 1938 and was named Linden Lea[12]. It was described by the Respondent’s witness, Mr McDonald, a heritage architect, in the following way:

“2.3.1 The house is designed in one of the eclectic styles common to Brisbane in the inter-War period of the 1920s and 1930s. Mr Elliott refers to the house’s architectural style as English (Tudor) Revival …whilst I refer to its style as English Revival…Other writers refer to the style as Old English or Inter-War English. These stylistic terms are all synonymous…to the style herein as English Revival.

…

2.3.4 Key features of the English Revival style which are evident in Linden Lea are shown at figure 2 and include:

  • gable roof form
  • asymmetrical massing
  • imitation half-timbering
  • catslide roof
  • casement windows
  • textured render
  • tall chimney.” [13]
  1. [10]
    Mr McDonald concluded that the dwelling house “is a highly attractive, high quality, pre-1947 house which is highly expressive of Brisbane’s traditional inter-War housing character.”[14]  I accept Mr McDonald’s evidence in this regard.
  2. [11]
    The Court was referred to an approval granted by the Respondent in March 2015 that facilitates the partial demolition and alteration of the dwelling house at its rear fronting the Brisbane River.[15] The development authorised has not commenced. I do not regard this approval as having any bearing on this appeal as it would not, if implemented, alter the appearance of the dwelling house to Archer Street.
  3. [12]
    A site inspection was conducted with Counsel on the first day of the hearing. As is well established, such an inspection is not evidence but merely an aid to understanding the evidence.[16] The evidence, as was confirmed by the site inspection, establishes that Archer Street is a relatively short and narrow street located to the east of Coronation Drive and Benson Street, Toowong. For the most part, the horizontal alignment of the street runs parallel to Coronation Drive and Benson Street. At its northern and southern ends, Archer Street dog legs to the west to intersect with Coronation Drive and Benson Street. At the southern end, the ‘dog leg’ becomes Glen Road. The now derelict site once used by the Australian Broadcasting Commission is located at the northern end of Archer Street where it intersects with Coronation Drive.
  1. [13]
    Archer Street gradually rises in elevation from the intersections with Coronation Drive and Benson Street for the length of each dog leg, after which the Street rises more steeply to a crest at about the location of two houses, namely numbers 32 and 34 -38.[17] The change in alignment of the Street, both horizontally and vertically, is part of Archer Street’s character. Self-evidently, the combination of the horizontal and vertical alignment mean that a casual observer is not able to view the streetscape in one viewshed.
  2. [14]
    The character of Archer Street is mixed. In general terms, the existing built form comprises a mix of modern[18] and dated apartment buildings,[19] dwelling houses,[20]modest commercial development,[21] and a derelict site being that of the former ABC headquarters. A modern apartment complex of note is known as ‘Centra’. This is a new building that is substantial in terms of its height (15 storeys), scale and appearance to Archer Street.[22] One of the existing commercial developments presents its face to Benson Street with the back of house and at-grade carparking area presented to Archer Street.[23]
  3. [15]
    Whilst the character of Archer Street is mixed, it is clear from the evidence that the nature of the mix and its influence on character is different depending on whether focus is placed upon the eastern or western side of the street.
  4. [16]
    The western side of Archer Street, save for one dwelling house at its south-western end,[24] comprises apartment buildings, both new and old, and includes the commercial development referred to above that presents an at-grade carpark to the street with the back of house area of a commercial building seen immediately behind it.
  5. [17]
    In more recent times, the Respondent has granted a development approval for a substantial apartment complex on land situated at 25-29 Archer Street. This land is located on the western side of Archer Street to the immediate north of the Centra building.  The approval envisages a modern structure of some 15 storeys that is substantial in terms of its height and scale.[25] If acted upon, the development approved would further entrench the existing character of the western side of Archer Street. This is a mixed character that does not exhibit traditional building character.
  6. [18]
    The eastern side of Archer Street has a different character to the western side of the street. The character of the eastern side of the street comprises a number of elements, namely the derelict commercial site (ABC headquarters), a number of dwelling houses and a dated apartment building. Relevantly, the dwelling house on the land forms part of a group of five dwelling houses[26] on the eastern side of Archer Street. All of these dwelling houses were constructed prior to 1947.[27] One of the houses, number 30, is located to the north of the crest in Archer Street. The balance of the dwelling houses are located on, and to the south of, the crest in the street.
  7. [19]
    The design of the group of five houses is broadly of the same era and style.  They were all built in the inter-War period. Each has a terracotta tile roof and present as high quality houses on sites that have frontage to the Brisbane River.[28]
  8. [20]
    The evidence persuasively establishes that, as a group, the five dwelling houses on the eastern side of Archer Street make a strong contribution to the mixed character of the street. The strong contribution made to the character of the street is due to a combination of three matters, namely:
    1. (a)
      the high quality of the architecture of each house and its intactness;
    2. (b)
      the cohesiveness of the group expressing a similar style of architecture; and
    3. (c)
      the clear contrast in scale and style between the dwelling houses and development on the western side of Archer Street.
  9. [21]
    Mr McDonald was in no doubt that the group of five houses on the eastern side of Archer Street makes a strong contribution to the character of the street. In his evidence-in-chief he described the setting of the five dwelling houses in Archer Street in this way:

“…It’s relatively rare to find a collective group of houses of such calibre together in one group. This is, in my experience, quite an exceptional setting of traditional houses...” [29]

  1. [22]
    If it is assumed that each of the dwelling houses in the cohesive group of five are regarded as being traditional building character for the purposes of the Demolition code in City Plan 2014, I have no hesitation in concluding that:
  1. (a)
    Archer Street has a mixed character that includes a strong element of traditional building character;
  2. (b)
    the strong element of traditional building character in Archer Street is not eroded or diminished by the mixed character of the street overall;
  3. (c)
    irrespective of whether the character of Archer street is considered as a whole, or limited to a smaller or concentrated study area, the dwelling house forms part of a cohesive group of dwellings that contribute positively to the visual character of Archer Street. The contribution the dwelling house makes to the visual character of Archer Street is substantial; and
  4. (d)
    the dwelling house, if demolished, would as Mr McDonald described it result in the loss of a prominent tooth in a high quality, strongly expressed, traditional building character smile.
  1. [23]
    I note from the evidence that the Respondent has approved an application to redevelop land located on the eastern side of Archer Street at its northern end.[30] The land which is the subject of this approval is already developed with a dwelling house that is a local heritage place known as St Briavels. The development approval granted by the Respondent facilitates the repositioning of St Briavels on the same land, and permits the development of a 9 storey apartment building. This redevelopment, if undertaken, will retain St Briavels while also permitting a substantial modern redevelopment. The approval of the redevelopment of the St Briavels site, if acted upon, will not dilute the strong contribution that the group of five contiguous houses make to the mixed character of Archer Street. The redevelopment would be removed, and not detract, from the group of cohesive five houses of which the dwelling house forms an important part.

City Plan 2014

  1. [24]
    For the purposes of City Plan 2014, the land is included in the:
    1. (a)
      Low-medium density residential zone;
    2. (b)
      Up to 3 storeys precinct of the Low-medium density residential zone;
    3. (c)
      Traditional building character overlay;
    4. (d)
      Toowong-Auchenflower neighbourhood plan area (“the NHP”); and
    5. (e)
      Toowong residential precinct of the NHP.
  2. [25]
    The group of five dwelling houses located on the eastern side of Archer Street are all included in the Low-medium density residential zone, Traditional building character overlay and the NHP Toowong residential precinct.
  3. [26]
    The development application before the Court is one that seeks approval for building works, namely demolition of a building that was constructed in 1946 or earlier and included in the Traditional building character overlay. An application of this kind triggers code assessment under City Plan 2014[31].
  4. [27]
    Section 5.3.3(1)(c) of City Plan 2014 identifies the assessment criteria for the development application, being the codes identified in the assessment criteria column in the relevant level of assessment tables. The relevant level of assessment tables[32]identify two codes in the assessment criteria column, namely the Demolition code and the NHP code.
  5. [28]
    The Respondent accepts that the proposed development complies with the NHP. Whilst it is not alleged that the NHP warrants refusal of the application, it is nonetheless relevant to an assessment of the planned character of Archer Street and the locality more broadly.
  6. [29]
    The western side of Archer Street is included in the Toowong centre precinct of the NHP[33]. As was confirmed by the site inspection, this centre is undergoing considerable growth and that growth is planned to continue.
  7. [30]
    The Toowong centre precinct in the NHP reflects that the centre is designated a Major Centre.  Section 7.2.20.3.2(4) of the NHP includes the overall outcomes relevant to the centre precinct. Sub-sections (a) and (c) of that provision state:

“(a)  The precinct is the social and economic heart of Toowong and has a vital role as the Major Centre for inner western Brisbane.

…

(c)  The precinct contains the greatest intensity and mix of land uses in the neighbourhood plan area, providing for a focal point for retail, commercial and social activities. A variety of residential uses also exists in the centre and takes advantage of the area’s proximity to public transport and the amenity provided by new public open space and the Brisbane River.”[34]

  1. [31]
    The redevelopment potential of land in the Toowong centre precinct is evident from Performance Outcome PO1 and its accompanying Acceptable Outcome in the NHP code.  This provision envisages buildings of a bulk, scale and height that are considerably greater than dwelling houses. The provisions of the NHP code are supported by the underlying zoning of the land. Land on the western side of Archer Street is included in the Major centre zone[35].
  2. [32]
    Whilst the western side of Archer Street forms part of the Toowong centre designation, the same cannot be said for the eastern side of the street.  The NHP code does not suggest that the eastern side of Archer Street is encouraged to be developed, in its entirety, such as to be consistent with the height, bulk and scale of development on land to the west.
  3. [33]
    Some of the land on the eastern side of Archer Street is included in, inter alia, the Low-medium density residential zone. The future development envisaged for that land will not be of a height, bulk and scale that is commensurate with the size and scale of development in the Toowong Major centre.  
  4. [34]
    The Respondent’s reasons for refusal put squarely in issue that a decision to approve the Appellant’s development application would conflict with the Demolition code, in particular Performance Outcome PO5 and its accompanying Acceptable Outcome AO5. 
  5. [35]
    It was common ground between the parties that, at the date the development application was made, the Appellant could demonstrate the development application complied with the Demolition Code in one of two ways, namely:
    1. (a)
      by demonstrating compliance with the purpose and overall outcomes of each code; or alternatively
    2. (b)
      by demonstrating compliance with the performance or acceptable outcomes of each code.
  6. [36]
    This point of common ground is consistent with s 5.3.3(1)(c)(iii) of City Plan 2014 in force at the date the development application was properly made.
  7. [37]
    City Plan 2014 was in amended on 1 December 2017, some 2 and a half months after this appeal was commenced. The precise amendments and their effect are dealt with later in these reasons. For present purposes, it is relevant to observe that the amendments to City Plan 2014 included changes to s 5.3.3(1)(c) and the Demolition Code. Whilst the amendments do not alter the assessment of the planned character of Archer Street, they were described in the heritage architecture joint report as being “highly disadvantageous” to the Appellant.[36] It was accepted by the Appellant’s heritage architect, Mr Elliott, that the development application does not comply with City Plan 2014 inclusive of the December 2017 amendments. The non-compliance was characterised as plain and obvious.[37]

The issues in dispute

  1. [38]
    In accordance with paragraph 24 of Practice Direction No.1 of 2018, an agreed list of disputed issues was tendered on the first morning of the hearing.[38] The list of issues are cast on the basis that the applicable statutory assessment regime is that prescribed under the Planning Act 2016 (“the PA”). This is a point of common ground between the parties having regard to this Court’s recent decision of Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21, particularly the analysis undertaken by Judge Kefford at paragraphs [16] to [89] of that decision. 
  2. [39]
    I respectfully agree with her Honour’s comprehensive analysis of the relevant transitional provisions in the PA and, as a consequence, accept that the parties have correctly proceeded on the footing that the statutory assessment regime to be applied by this Court in deciding the appeal is that prescribed in the PA, particularly, but not limited to, ss 45 and 60. 
  3. [40]
    The agreed list of issues raise essentially three matters for determination by this Court, namely:
    1. (a)
      Whether the proposed development complies with the Demolition code in force at the date the development application was properly made?
    2. (b)
      In the event the proposed development complies with the Demolition code in force at the date the development application was properly made, does s 60(2)(a) of the PA mandate that the application must be approved? And
    3. (c)
      If s 60(2)(a) of the PA does not mandate an approval in this case, what weight, if any, is to be given to the December 2017 amendments to City Plan 2014 and whether the discretion conferred by s 60(2)(b) ought be exercised in the Appellant’s favour?
  4. [41]
    I now turn to deal with the three issues identified above.

Does the development comply with the Demolition code (pre 1 December 2017 version)?

  1. [42]
    The Respondent alleges that the development does not comply with a number of provisions of the Demolition Code in force at the date the development application was properly made[39].
  2. [43]
    In particular, it is alleged that the development does not comply with the following Overall Outcomes in s 8.2.21.2(2) of City Plan 2014, namely:

“(2) The purpose of the code will be achieved through the following overall outcomes:

(a) Development protects residential buildings constructed in 1946 or earlier that give the areas in the Traditional building character overlay their traditional character and traditional building character.

…

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

…

(h) Development ensures that, in conjunction with the Traditional building character (design) overlay code, precincts of residential buildings constructed in 1946 or earlier are retained and redevelopment in those precincts complements the traditional building character of buildings constructed in 1946 or earlier.” [40]

  1. [44]
    Further, it is alleged that the development does not comply with Performance Outcome PO5 of the Demolition code which is in the following terms:

PO5

Development involves a building which:

  1. (a)
    does not represent traditional building character; or
  2. (b)
    is not capable of structural repair; or
  3. (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 with 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 the traditional building character; or

  1. (d)
    is in a street that has no traditional character. 

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

  1. [45]
    The case was conducted by both parties on the footing that compliance with any limb of PO5 or AO5 demonstrates compliance with the Demolition Code, including the three overall outcomes set out above, namely s.8.2.21.2(2)(a), (d) and (h). Consequently, I have primarily focused on whether the Appellant has demonstrated compliance PO5 and AO5 of the Demolition code.
  2. [46]
    The Respondent contends that the development does not comply with any limb of AO5 or PO5 of the Demolition code. Conversely, the Appellant contends that the development complies with any one of the following, namely PO5(a) or (c), or AO5(c) or (d). 
  3. [47]
    The Appellant’s primary position is that PO5(a) and AO5(c) of the Demolition code are satisfied. These provisions call for the resolution of the following question: Does the development involve a building which represents traditional building character?
  4. [48]
    The starting point for the resolution of this question is to determine what City Plan 2014 regards as traditional building character.
  5. [49]
    City Plan 2014 does not, in terms, define what is, or is not “Traditional building character”.  The overall outcomes of the Demolition Code in s 8.2.21.2(2) provide some assistance as to what the term is intending to capture. For example, the overall outcomes speak of:
    1. (a)
      residential buildings constructed prior to 1946 or earlier;[41]
    2. (b)
      federation era or earlier buildings;[42]
    3. (c)
      non-residential character buildings;[43] and
    4. (d)
      traditional building character other than ‘timber and tin’ architecture.
  6. [50]
    The Demolition code directs the reader to the Traditional building character planning scheme policy (“the PSP”) for guidance. In particular, the Demolition code includes a ‘Note’[44] following s 8.2.21.1(3) in the following terms:

“Note – Where this code includes performance outcomes or acceptable outcomes that relate to traditional character or traditional building character, guidance is provided in the Traditional building character planning scheme policy.” (emphasis added)[45]

  1. [51]
    The above Note states that the PSP is intended to provide guidance where a performance outcome or acceptable outcome relates to one of two matters, namely traditional character or traditional building character. Traditional character and traditional building character are treated as two different concepts in the Note.  The distinction between traditional character and traditional building character is maintained throughout the Demolition code, for example, PO2, PO4 and PO5(a) and AO5(c) focus on traditional building character in contrast to AO5(d) that is focused on traditional character.
  2. [52]
    PO5(a) of the Demolition code calls for an assessment of traditional building character. It is on this footing that guidance is sought from the PSP.
  3. [53]
    Turning to the PSP itself, it was adopted in 2014 and took effect under SPA. Section 109 of SPA provides that the PSP at the time it was adopted was a statutory instrument. By definition, it is an instrument that, inter alia, supports the local dimension of a planning scheme and supports local government actions for the IDAS process.[46]
  4. [54]
    Section 1.1 of the PSP states:

“The planning scheme policy provides guidance or advice about satisfying an assessment criteria which identifies this planning scheme policy as providing that guidance or advice.”[47]  (emphasis added)

  1. [55]
    Section 1.2 of the PSP contains the Purpose statement of the policy which is in the following terms:

“This planning scheme policy provides guidance on the elements that comprise traditional character and traditional building character identified in the Traditional building character (demolition) overlay code and the Traditional building character (design) overlay code.”[48] (emphasis added)

  1. [56]
    The PSP provides advice about satisfying assessment criteria, and the elements that comprise traditional character and traditional building character. The advice and guidance is given for the purposes of two different codes in City Plan 2014, namely the Demolition code and the Traditional building character (design) overlay code. The former code deals with the demolition, or partial demolition of traditional building character. The latter code deals with the suitability of new development that may or may not include a building constructed prior to 1946 in the Traditional building character overlay.[49]
  2. [57]
    The purpose statement of the PSP conveys, consistently with long established principle, that it is not to be regarded as stating an inflexible formula, nor is it to be applied rigidly.[50] It is a guide and no more than a guide. It is a guide intended to assist across a range of circumstances that may arise under two different codes, some of which may involve traditional character and others may involve traditional building character. 
  3. [58]
    Section 2.1(1) of the PSP provides:

“(1) The traditional character of areas and the traditional building character of buildings, within the Traditional building character overlay, is a combination of one or more of the following elements:

  1. (a)
    traditional building form and roof styles;
  2. (b)
    traditional elements, detailing and materials;
  3. (c)
    traditional scale;
  4. (d)
    traditional setting.”
  1. [59]
    This provision, read literally, contemplates that the traditional character of an area and traditional building character of buildings comprises either a combination of one, or a combination of more than one of the four elements listed. It is of course impossible to have a combination of one. The provision, read in a practical and common sense way, suggests by way of guidance that the presence of one, or a combination of any of the four elements cited, may evidence the existence of traditional character or traditional building character. 
  2. [60]
    It is a question of fact and degree as to whether the existence of one, or a combination of any of the four elements in s 2.1 of the PSP comprise traditional character or traditional building character in any given case. 
  3. [61]
    Section 2.1(2) of the PSP confirms that the importance attaching to any of the four elements will vary depending on the fact and circumstances of each case. This provision relevantly states:

“The component elements of traditional character or traditional building character vary in the context of demolition or new development including extensions.”

  1. [62]
    Sections 2.2, 2.3, 2.4 and 2.5 of the PSP provide an explanation for each of the four elements listed in s.2.1(1)(a) to (d). 
  2. [63]
    Section 2.2 deals specifically with the first of the four elements, traditional building form and roof styles. Subsection (1) of this provision provides:

“(1) The predominant traditional building character of dwelling houses constructed in 1946 or earlier, often referred to generically as the Queensland vernacular, usually comprises:

  1. (a)
    a core with attached or integrated verandahs raised above the ground on timber supports which are now often replaced with concrete or steel stumps or steel beams;
  1. (b)
    enclosed areas under the dwelling house that generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor entrance and verandahs;
  1. (c)
    roof forms of medium pitched pyramids, hips or gables (refer to Figure a).”
  1. [64]
    The first element expressly deals with traditional building character of dwelling houses as distinct from traditional character. It does so with reference to traditional building form and roof styles, and expressly captures buildings that are described as “the Queensland vernacular” or, put another way, “timber and tin” architecture. The subject dwelling house does not fit within the descriptor of timber and tin architecture. 
  2. [65]
    That is not however the end of the matter. It is necessary to have regard to s 2.2(3) of the PSP which states:

“(3) Other traditional building character forms exhibit overseas architectural influences on Brisbane’s residential design. These forms occurred primarily during the inter-war period and are often influenced by but not limited to art deco, Spanish mission, Californian bungalow and Georgian. These forms comprise traditional building character where the site is located in the Character residential zone, but are not applicable in the Lowmedium density zone.” (emphasis added)

  1. [66]
    Section 2.2(3) of the PSP deals specifically with traditional building character forms being the matter to which PO5(a) of the Demolition code is directed. The provision of the PSP contemplates that “other” traditional building character forms that exhibit overseas architectural influences are recognised as traditional building character and protected. That protection is qualified. The land where the house is located is to be in the Character residential zone under City Plan 2014.
  2. [67]
    The land is not included in the Character residential zone. The land is included in the Low-medium density residential zone which is expressly excluded from s 2.2(3) of the PSP. The dwelling house as, a consequence, is not therefore treated as traditional building character by this aspect of the PSP. 
  3. [68]
    Unsurprisingly, the Appellant contends that s 2.2(3) of the PSP resolves the issue of compliance with PO5(a) issue in his favour. To reinforce this, he also points to s 2.3(4) of the PSP. This provision deals with traditional elements, detailing and materials and states:

“(4) Whilst ‘timber and tin’ are the predominant materials of the older suburbs, the presence of other distinctive traditional building character forms, such as Spanish mission, and the variety of materials highlights the overseas influence on residential design in Brisbane and is an integral part of the traditional building character. These styles usually incorporate face brick or rendered walls on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof. These elements, detailing and materials comprise traditional building character where the site is located in the Character residential zone, but are not applicable in the Lowmedium density zone.” (emphasis added)

  1. [69]
    Like s 2.2(3), s 2.3(4) of the PSP provides guidance with respect to traditional building character as distinct from traditional character. It states in unequivocal terms that building fabric, namely the elements, detailing and materials identified therein will not comprise traditional building character where the site is not included in the Character residential zone but included in the Low-medium density zone, as is the case here.
  2. [70]
    Sections 2.2(3) and 2.3(4) of the PSP are compelling provisions in favour of the Appellant’s case. This is particularly so once it is appreciated that those provisions are consistent with the terms of the overall outcome contained in s.8.2.21.1(2)(e) of the Demolition code which states:

“(e) Development retains a residential building constructed in 1946 or earlier that reflects the traditional building character other than ‘timber and tin’ architecture, if in the Character residential zone"

  1. [71]
    This overall outcome embodies a clear policy position adopted by the Respondent. The policy involves a deliberate decision to exclude a specific class of building form from the protection afforded by the application of the Traditional building character overlay and the Demolition code. It was not suggested that this policy was unsoundly based, nor anything other than carefully adopted by the Respondent.
  1. [72]
    There was no argument advanced by the Respondent to suggest that sections 2.2(3) and 2.3(4) of the PSP are irrelevant or do not apply in the circumstances of the case. Rather, it was contended on its behalf that the dwelling house was regarded as traditional building character for the purposes of City Plan 2014 because sections 2.4 and 2.5 of the PSP were satisfied, being a combination of two of the four elements referred to in s 2.1(1) of the PSP. Reliance was placed upon Mr McDonald’s evidence who at paragraph 22.2 of the Heritage Joint Report expressed the opinion that the dwelling house was consistent with the PSP’s explanation of traditional scale and traditional setting, being two of the four elements in s 2.1(1) of the PSP.
  2. [73]
    Section 2.4 of the PSP deals with traditional scale. This provision has in mind an assessment of the scale of a street rather than the type, form or elements of a particular building. It calls for an assessment of the pattern of subdivision, the height of buildings, steps in building levels and the need to identify features of a street, or new development that may detract from the traditional scale of a street. Considerations of this kind are, in my view, more appropriately directed at the issue of the traditional character of a street as distinct from whether a building represents traditional building character.  
  3. [74]
    Section 2.5 of the PSP deals with the traditional setting of dwelling houses in older suburbs. The provision focuses upon matters such as uniform building lines, individual front gardens punctuated by a pedestrian path and a single width driveway. Like s.2.4, this provision identifies features of development that may detract from the character of a street or suburb. Considerations of this kind are, in my view, directed at traditional character rather than traditional building character.
  4. [75]
    I accept Mr McDonald’s evidence with respect to ss.2.4 and 2.5 of the PSP in that the elements of traditional scale and setting are evident in the present case. However, reliance by the Respondent on ss.2.4 and 2.5 to establish that the dwelling house on the land represents traditional building character is misconceived. Neither of these provisions establish that the dwelling house on the land is traditional building character. The provisions upon which it relies are directed at traditional character such as the character and setting of dwelling houses in the street. Those provisions do not in my view assist in determining as a matter of fact and degree with the dwelling house is traditional building character for the purposes of the PSP and the Demolition code.
  5. [76]
    There is a further difficulty in the Respondent’s case. The case advanced invites this Court to conclude that the dwelling house is traditional building character in circumstances where there are express provisions in the PSP and an overall outcome of the Demolition code that provide to the contrary. Once this is appreciated, it is not difficult to accept that the Respondent’s contentions as to the application of the PSP to this case ought not prevail. 
  6. [77]
    Accordingly, I reject the submissions made on behalf of the Respondent that the dwelling house is to be regarded as traditional building character for the purposes of City Plan 2014 in force at the date the application was properly made. This has the consequence that the application to demolish the dwelling house on the land complies with PO5(a) and AO5(c) of the Demolition code in force at the date the application was properly made and, in turn, complies with the code as a whole. For this reason it is unnecessary for me to deal with the Appellant’s submissions with respect to the remainder of those parts of PO5 and AO5 relied upon to demonstrate compliance.
  7. [78]
    The case was run on the basis that it was accepted by the Respondent that the development for which approval is sought complies with the NHP code. It follows from this concession, coupled with the findings I have made with respect to compliance with the Demolition code, that the Appellant has established the development complies with the assessment benchmarks in force at the date the application was properly made. 

Does s.60(2)(a) of the PA require the application to be approved?

  1. [79]
    The statutory assessment regime applying to the determination of this appeal is that contained in the PA[51]. Section 60(2) of the PA applies to a development application requiring code assessment. Sub-section (2)(a) states:

“(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager, after carrying out the assessment –

(a) must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and…”[52]

  1. [80]
    Given that I have found that the development complies with the assessment benchmarks in force at the time the application was properly made, an issue arises as to whether s 60(2)(a) of PA is engaged. The Appellant submits that the provision is engaged with the consequence that his application must be approved. For the reasons that follow, I accept that submission.
  2. [81]
    The starting point is s 45(3) of PA. This provision defines code assessment in the following terms:

 “(3)   A code assessment is an assessment that must be carried out only—

  1. (a)
    against the assessment benchmarks in a categorising instrument for the development; and
  1. (b)
    having regard to any matters prescribed by regulation for this paragraph.”
  1. [82]
    The definition for code assessment draws a distinction between, on the one hand, carrying out an assessment against the assessment benchmarks and, on the other hand, having regard to matters prescribed by regulation. As to the former, the assessment benchmarks against which an assessment is to be carried out is defined in s 43(1)(c) of the PA as follows:

“43 Categorising instruments

(1) A categorising instrument is a regulation or local categorising instrument that does any or all of the following—

…

(c) sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.”

  1. [83]
    City Plan 2014 is a categorising instrument that sets out the matters that an assessment manager must assess the Appellant’s development application against. That assessment must be carried out against the Demolition Code and the NHP.
  2. [84]
    As to “carrying out” an assessment against the assessment benchmarks, section 45(6) of the PA relevantly states:

“(6) An assessment carried out against a statutory instrument, or another document applied, adopted or incorporated (with or without changes) in a statutory instrument, must be carried out against the statutory instrument or document as in effect when the application was properly made.”  (emphasis added)

  1. [85]
    Sections 45(3) and 45(6) of the PA are clear. These provisions of the Act require an assessment to be “carried out against” the assessment benchmarks in force when an application is treated as being properly made. This assessment does not include an assessment against amended or replacement statutory instruments or documents that took effect after the date the application was properly made. More particularly for this case, sections 45(3) and 45(6) of the PA do not require the assessment manager, or this Court, to carry out an assessment of the Appellant’s application against the amended provisions of the PSP and City Plan 2014 that took effect in December 2017.
  2. [86]
    As to the relevance of amended or replaced statutory instruments or documents to this Court’s decision, section 45(7) of the PA relevantly provides:

“(7) However, if the statutory instrument or other document is amended or replaced before the assessment manager decides the application, the assessment manager may give the weight that the assessment manager considers is appropriate, in the circumstances, to the amendment or replacement.”

  1. [87]
    Amended or replaced statutory instruments or documents may be relevant to code assessment. The issue is in what sense will such documents be relevant? The answer lies in an important difference between ss 45(6) and (7) of the PA.
  2. [88]
    Unlike sub-section (6), s 45(7) does not speak of carrying out an assessment against amended or replacement statutory instruments or documents. Rather, the sub-section relates to matters of weight only. The weight to be given, if any, applies to the amended or replaced statutory instrument or other document as opposed to weight that may be given to an assessment carried out against the amended or replaced statutory instrument or document. The absence of a requirement to assess an application against an amended or replaced statutory instrument or document is relevant to s 60(2)(a) of the PA.
  3. [89]
    Section 60(2)(a) of the PA mandates that an assessment manager, and this Court on appeal, must decide to approve an application to the extent the development complies with all of the assessment benchmarks. This provision, by its very nature, calls for the decision maker to have carried out an assessment of the development against the assessment benchmarks. This is the exercise contemplated by ss 45(3) and 45(6) of the PA. 
  4. [90]
    Importantly, s.60(2)(a) of the PA does not, in terms, require the decision maker to have made any findings about the weight, if any, that may be given to amended or replaced statutory instruments or documents. The impact of the weight to be given to an amended or replaced statutory instrument or document would appear to be irrelevant to the enquiry that a decision maker must undertake to determine whether s 60(2)(a) of the PA is engaged.
  5. [91]
    The Respondent contends to the contrary. It submits that s 60(2)(a) of the PA is not engaged here for, essentially, two reasons:
    1. (a)
      the provision requires the Appellant to demonstrate that the development complies with ALL assessment benchmarks being the assessment benchmarks in force at the time the application was treated as being properly made and those that came into force on and from 1 December 2017; and
    2. (b)
      given the evidence of Mr Elliott, the Appellant can not establish compliance with the assessment benchmarks in force after 1 December 2017.
  6. [92]
    I do not accept the first of the two reasons advanced by the Respondent. The reasoning assumes that the decision making process involves the assessment manager, or this Court, carrying out an assessment of the development application against the amended or replaced statutory instruments and documents, that is the amended City Plan 2014 provisions and the Demolition code. There is no provision of the PA to which my attention was drawn to support this proposition other than s 45(7). For the reasons, I have set out above, that provision requires no such assessment. It speaks of weight and omits any reference to the notion of “carrying out an assessment”.
  7. [93]
    I accept that the second of the two reasons advanced by the Respondent is made out on the evidence. Both Mr Elliott and Mr Buckley accepted in cross-examination that the proposed demolition did not comply with the assessment benchmarks in force after 1 December 2017. This does not however mean that s 45(7) of the PA ought be construed to require an assessment be carried out against amended or replaced statutory instruments or documents.
  8. [94]
    I also observe that the Respondent’s submission assumes that s 60(2) of the PA is not engaged until an assessment manager, and this Court on appeal, has undertaken two specific tasks:
    1. (a)
      first, an assessment must be carried out against the assessment benchmarks for the development being the NHP code and Demolition code in force at the time the application was properly made, consistent with s.45(6) of the PA; and
    2. (b)
      second, the Court is determine the weight that is to be given to any amendments made to the assessment benchmarks in City Plan 2014 under s 45(7) of the PA prior to deciding the application.
  9. [95]
    On the Respondent’s case, it is not until both of these steps are carried out before a finding can be made that the development complies with all assessment benchmarks for the development.
  10. [96]
    Again, I reject the Respondent’s submission as it proceeds on a false premise. It wrongly assumes that s 60(2)(a) of the PA, read with s 45(7) requires an assessment to be carried out for compliance as between the development application and the amended or replaced assessment benchmarks. Neither of these provisions read together, in my view, call for such an assessment to be carried out.
  11. [97]
    I am therefore satisfied that s 60(2)(a) of the PA is engaged in the circumstances of this case and the Appellant’s application must be approved.

What weight, if any, is to be given to the amendments to City Plan 2014 and the PSP?

  1. [98]
    The Appellant’s alternative case involves a submission that, in the event s 60(2)(a) of the PA is not engaged, the Court would, in the alternative, exercise its discretion under s 60(2)(b) to approve the application. The alternative submission assumes that the application complies with the Demolition code and NHP in force at the time the application was properly made, and that little or no weight be given to the amendments made to City Plan 2014 and the PSP in December 2017.
  2. [99]
    Given I have found that s 60(2)(a) of the PA is engaged and the appeal must be allowed, the Appellant does not need to persuade the Court that its alternative position should be accepted. However, if it had been found that s 60(2)(a) of the PA was not engaged in the circumstances of this case, I have considered, in the alternative:
    1. (a)
      what weight, if any, should be given to the amendments made to City Plan 2014 and the PSP in December 2017; and
    2. (b)
      whether the discretion conferred by s 60(2)(b) of the PA ought be exercised in the Appellant’s favour, assuming s 60(2)(a) is not engaged.
  3. [100]
    At the outset, if s 60(2)(a) of the PA was not engaged in this case, I would have dismissed the appeal. The alternative case was finely balanced, but I was not persuaded that the discretion conferred by s 60(2)(b) of the PA, if it applied, should be exercised in the Appellant’s favour. My reasons for reaching this position are set out below.
  4. [101]
    The starting point is the legislation conferring the discretion to approve where a noncompliance with an assessment benchmark is established. Section 60(2)(b) of the PA is in the following terms:

“(2) To the extent the application involves development that requires code assessment, and subject to section 62, the assessment manager after carrying out the assessment –

   …

(b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and”…

  1. [102]
    The discretion is expressed in permissive (“may”) and broad terms. It is subject to an important constraint, namely the constraint expressed in s 59(3) of the PA requiring the decision to be based on the assessment carried out pursuant to earlier provision of the Act, which in this case includes, inter alia, s 45. 
  2. [103]
    For the purposes of this case, the exercise of the discretion under s 60(2)(b) of the PA commences on the footing that:
    1. (a)
      I have found that the development complies with the assessment benchmarks in force at the date the development application was properly made;
    2. (b)
      but for the amendments to City Plan 2014 and the PSP, s 60(2)(a) of the PA would have mandated that the Court was to approve the development application; and
    3. (c)
      the development does not comply with the Demolition code in force on and from 1 December 2017.
  3. [104]
    Against this background, the central question to be answered is whether, as the Respondent contends, the non-compliance with the amended Demolition code and the PSP should be given weight, and be determinative, of the outcome of the appeal?
  4. [105]
    Whilst there is no controversy that the amendments to City Plan 2014 and the PSP are unfavourable to the Appellant’s development application, I will briefly identify the nature of the amendments.
  5. [106]
    It will be recalled that the issue of compliance with PO5(a) of the Demolition Code called for the resolution of the following question: Does the development involve a building which represents traditional building character? That question was answered having regard to s 2.2(3) of the PSP that was in the following terms at the date the development application was properly made:

“(3) Other traditional building character forms exhibit overseas architectural influences on Brisbane’s residential design. These forms occurred primarily during the inter-war period and are often influenced by but not limited to art deco, Spanish mission, Californian bungalow and Georgian. These forms comprise traditional building character where the site is located in the Character residential zone, but are not applicable in the Lowmedium density zone.”  (emphasis added)

  1. [107]
    The last sentence of s 2.2(3) was central to the finding that the dwelling house was not regarded as traditional building character for the purposes of the Demolition code. My finding in this regard was reinforced by s 2.3(4) of the PSP and s 8.2.21.2(2)(e) of the overall outcomes of the Demolition code.
  2. [108]
    The PSP was amended in December 2017 to delete the last sentence of s 2.2(3) and an analogous sentence in s 2.3(4). The overall outcome was also amended, consistent with the PSP, to remove reference to land in the Character Residential zone. As a consequence of these amendments, the dwelling house is regarded as traditional building character for the purposes of the amended Demolition code. The demolition of the dwelling house would therefore conflict with and cut across PO5(a) and A05(d) of the Demolition Code.
  3. [109]
    The Demolition code was also amended, seemingly in response to decisions of this Court,[53] to narrow the area that is the subject of enquiry to for an assessment against PO5(c) and AO5(d).
  4. [110]
    PO5(C) and AO5(d) in their pre-December form where as follows:

“PO5

      Development involves a building which:

…

(c) does not contribute positively to the visual character of the street.”

And

"AO5

    Development involves a building which:

    …

    (d)  is in a street that has no traditional character.”

[111]  PO5(c) and AO5(d) in their amended form are as follows:

“PO5

      Development involves a building which:

…

(c) does not contribute to the traditional building character of that part of the street within the Traditional building character overlay.”

And

"AO5

    Development involves a building which:

    …

(d)  is in a section of the street within the Traditional building character overlay that has no traditional character.” [54]

  1. [112]
    The amendments made to PO5(c) and AO5(d) of the Demolition code have the effect of narrowing the study area from a street, to that part of a street included in the relevant overlay. These amendments are also reflected in amended overall outcomes in the Demolition code.
  2. [113]
    It is unnecessary for me to deal with the amendments to PO5(c) and AO5(d) of the Demolition code in any detail. It is sufficient for me to note that the amendments, in the circumstances of this case, effectively mean that traditional building character and traditional character are assessed by reference only to the part of Archer Street that is included in the Traditional building character overlay. If this part of Archer Street is taken as the study area, the mixed character of Archer Street and the impact of that mix appears to no longer have a role play in the assessment of the Appellant’s application.  Given the findings I have made earlier in these reasons with respect to the land and the locality, the traditional building character of Archer Street is undoubtedly strong.
  1. [114]
    It was conceded on behalf of the Appellant that the proposed development did not comply with the Demolition code in the post 1 December 2017 form.  The concession was a sensible one given the evidence was all one way. In particular, the concession was consistent with the evidence of the Appellant’s own witnesses, Mr Buckley and Mr Elliott. Mr Buckley conceded that the level of non-compliance as between the proposed development and the amended Demolition code was characterised as a “substantial non-compliance”.[55] Mr Elliott, in his joint expert report, said:

“…it is considered that these later amendments to the planning scheme to this matter would be highly disadvantageous to the Appellant who lodged their development application for demolition of the subject house with the Respondent in good faith and having had full regard to all of the relevant planning scheme current at the time of lodgement”[56](emphasis added)

  1. [115]
    The statement made by Mr Elliott in the joint report was explored by Mr Job QC in cross-examination where the following exchange occurred:

“And you agree that if the new regime were to apply, I take it there would be non-compliance with the new code and policy? --- That’s correct

And the non-compliance would be obvious? --- Well, it would, because it protects all character houses no matter – all pre’ 1947 houses, regardless of their construction …however that’s not what was in force at the time the application was made.

I’m asking you why you think it would be highly disadvantageous?---Because it would change the – well, I think – and this actually goes to really the concerning issue here, is that the council refused an application which actually met an acceptable outcome in the code that was in force at the time and potentially because it knew it had a planning scheme policy amendment coming over the hill that would subsequently knock it out when it came to appeal.

And you say it would knock it out because there’s plainly non-compliance with the regime as we find it today? --- That’s right, but I have some grave reservations about how that regime would be applied in this particular context as well.” [57]

  1. [116]
    I am satisfied, having regard to the evidence of Messrs Buckley, Elliott and McDonald that the proposed demolition, if assessed against the Demolition code in its 1 December 2017 form as an assessment benchmark, would not comply with that code. This is because, principally, the dwelling house is now regarded as traditional building character. This directly impacts on an assessment carried out against PO5(a) and AO5(c) of the Demolition code.
  1. [117]
    Further, I accept Mr McDonald’s evidence that compliance cannot be demonstrated with other aspects of PO5 and AO5 namely:
    1. (a)
      AO5(c), because the demolition of the dwelling house, would result in the loss of traditional building character and that loss would be substantial. Mr McDonald’s oral evidence, which I accept, was as follows:

“…I think the demolition of the house would be a substantial loss of traditional character, not just in the local context of Archer Street but in the broader context of the city. It’s relatively rare to find a collective group of houses of such high calibre together in one group. This is, in my experience, quite an exceptional setting of traditional houses”[58]

  1. (b)
    PO5(c) and A05(d), because the evidence establishes that the dwelling house is located in a section of Archer Street within the relevant overlay and that overlay area includes a group of 5 houses that are a highly attractive and visually cohesive group of buildings regarded as representing traditional building character.[59]
  1. [118]
    The Appellant contends that the amendments to City Plan 2014 and the PSP should be given little or no weight having regard to twenty (20) reasons.[60] The reasons were identified in a document that was admitted and marked exhibit 14. The reasons were revised in the Appellant’s written and oral submissions.
  2. [119]
    In the end, the reasons relied upon by the Appellant to submit that the amendments to City Plan and the PSP should be given no weight can be reduced to essentially three main contentions, namely because:
    1. (a)
      the development complies with the assessment benchmarks in force at the date the application was properly made and, but for the amendments, the Court was obliged to approve the application under s 60(2)(a) of the PA;[61] and
    2. (b)
      the development complies with the assessment benchmarks in force at the date the application as properly made and, as a consequence, the decision of the delegate was wrong and no appeal should have been necessary;[62] and
    3. (c)
      it would be unfair to the Appellant for the amendments to City Plan 2014 and the PSP to be given determinative weight.[63]
  3. [120]
    I accept that the first ground set out above has been made out. The Appellant has demonstrated compliance with the assessment benchmarks in force at the date the development application was properly made. This is a powerful discretionary consideration in his favour; however, it is only one of a number of competing considerations in determining the weight to be given to the amendments to City Plan 2014 and the PSP.
  4. [121]
    The second ground advanced in support of the Appellant’s case is that the delegate’s decision was wrong and no appeal should have been necessary to this Court. This ground is expressed in strong and unequivocal terms. In doing so, the Appellant has a set a high bar to cross.
  5. [122]
    I reject the submission that the delegate’s decision was wrong and no appeal should have been necessary. In truth, this ground is overstated and has not been made out by the Appellant. Indeed, in oral submissions this was a point which Mr Gore QC appeared to accept was not as strong as it may have initially appeared.
  6. [123]
    The submission in my view cannot be made out because of the decision making rules that applied to the delegate. The Appellant’s application was made to the Respondent when SPA had force and effect. 
  7. [124]
    The delegate, unlike this Court, was bound to decide the development application under SPA and not the PA. The decision making rules under SPA permitted the delegate to refuse the application, notwithstanding that compliance with the Demolition code in force prior to 1 December 2017 had been demonstrated. It was open to the delegate to give determinative weight to the planning scheme and PSP amendments as I would have done, if the circumstances permitted.  It is the transitional arrangements and the effect of s 60(2)(a) of the PA that has delivered a favourable outcome for the Appellant in this case. The transitional arrangements were such that s 60(2) of the PA did not apply to the Respondent’s delegate at the time it decided the application.
  8. [125]
    This Court has accepted that fairness to an applicant has a role to play in determining the weight to be given to a draft, or adopted, planning scheme amendment. It is, however, necessary to acknowledge that fairness is but one consideration amongst many to which regard may be had by the Court, and the weight attributed to such amendments will vary depending upon the circumstances of each case. 
  9. [126]
    I accept that giving determinative weight to the City Plan 2014 and PSP amendments, at first blush, may be seen as unfair to the Appellant. It is a rare case where an assessment manager, and indeed this Court, is asked to give determinative weight to planning scheme amendments where:
    1. (a)
      the applicant has established that the development complies with the relevant laws and policies in force at the time the application was properly made; and
    2. (b)
      the amendments to the planning documents did not take effect until more than three months after the application was decided, and two months after the appeal was commenced.
  10. [127]
    The issue of fairness however needs to be considered in some detail.
  11. [128]
    As I observed earlier, the Appellant has raised twenty reasons that are said to support a submission that the amendments to the planning documents should be given little or no weight. Eighteen of those reasons underpin a submission that it would be unfair to give determinative weight to the amendments. The eighteen reasons that underpin the fairness submission can be reduced to the following propositions:
  1. (a)
    Archer Street has transitioned away from traditional building character and that character is dominated by large scale, multi residential buildings (grounds 1, 2, 3 and 4);
  2. (b)
    protection of the dwelling house as traditional building character is inconsistent with contemporary planning for this part of Toowong that promotes significant redevelopment including centre uses and medium to high density residential uses (grounds 5, 6, 7 and 12);
  3. (c)
    there is no recognition in the NHP of traditional building character and the inclusion of 6 houses on the eastern side of Archer Street in the Traditional Building Character Overlay map is anomalous or a planning oversight (grounds 8 and 9);
  4. (d)
    the Respondent has granted approvals to redevelop 20 and 25-29 Archer Street with built form that is consistent with that envisaged under the NHP thereby entrenching the non-traditional building character of the street (grounds 10 and 11);
  5. (e)
    the development application was decided and the appeal was lodged prior to the amendments taking effect on 1 December 2017 (ground 13);
  6. (f)
    the Respondent did not give notice to the Appellant of an intention to rely on the amendments in the appeal until 23 March 2018, some 6 weeks after the Court had made an order identifying the disputed issues in the appeal (ground 14);
  7. (g)
    the Appellant has the ability to lodge a superseded planning scheme request with the Respondent. The request, if accepted by the Respondent, would compel it to ignore the contents of the City Plan 2014 amendments in its assessment of any demolition application accompanying the request (ground 15);
  8. (h)
    it is at least arguable that the development complies with AO5(c) of the Demolition code because it involves a building which, if demolished, will not result in the loss of traditional building character (ground 16);
  9. (i)
    the Respondent did not call planning evidence to the effect that the proposal takes the amended provisions head on in fundamental respects or otherwise cuts across a significant and deliberate planning strategy, or makes it more difficult for the Respondent to implement the amendments to City Plan 2014 (ground 17); and
  10. (j)
    the application was lodged at a time when the Demolition code and the PSP did not regard the dwelling house as representing traditional building character (ground 18).
  1. [129]
    As to each of the propositions set out above:
    1. (a)
      I accept subparagraphs (d), (e), (f), and (j) are correct statements of fact;
    2. (b)
      I do not accept the proposition advanced in subparagraph (a). As I have already said, Archer Street has a mixed character, including a strong and high quality traditional building character component. This component of the character of the street represents 50% of the streetscape. The so-called transitional nature of Archer Street does not suggest that the amendments made to City Plan 2014 and the PSP ought be given little or no weight;
    3. (c)
      I do not accept that the proposition advanced in sub-paragraph (b) assists the Appellant’s case in demonstrating that the amendments to City Plan 2014 and the PSP should be given little or no weight. The submission proceeds on the footing that there is an inconsistency in the Respondent’s planning scheme as between the NHP and the Demolition code as amended.  Assuming this to be correct, the inconsistency is resolved in favour of the retention of traditional building character. Section 1.5 of City Plan 2014 makes it clear that any inconsistency between the NHP and any overlay provision in the planning scheme is resolved in favour of the overlay;
    4. (d)
      subparagraph (c) is a strong submission. It is asserted that the designation of 6 allotments in Archer Street in the Traditional building character overlay is a planning oversight or anomalous. I reject the submission. No credible evidence established that the designation was anything other than deliberate and reflective of the strong traditional building character evident in Archer Street. At best, the submission was advanced in reliance upon an assertion made by Mr Elliott during his oral evidence. The assertion is deserving of little, if any weight.  It appeared to me from Mr Elliott’s demeanour that his opinion in this regard was expressed more in frustration with the position adopted by the Respondent in the appeal, rather than an opinion expressed as a product of mature consideration and thought, founded on a solid foundation of supporting admissible evidence;
    5. (e)
      I accept the proposition in subparagraph (g) is a correct statement of fact. I do not accept it is a fact that supports a contention that the amendments should be given little or no weight. Rather, it is one of a number of matters that led me to conclude to the contrary, namely, that if the circumstances permitted, the balance in this case favours giving the amendments to City Plan 2014 and the PSP determinative weight. This is discussed further below;
    6. (f)
      I reject the proposition stated in subparagraph (h). For the reasons I have set out above, the development does not comply with AO5(c) of the amended Demolition Code;
  1. (g)
    the proposition advanced in subparagraph (i) is to the effect that the Respondent did not seek to run a case, let alone lead evidence, suggesting that a Coty point or non-derogation point arises in the circumstances of this case. I reject that submission. The Respondent did lead evidence from Mr McDonald about this very point. Mr Buckley, the Appellant’s town planning witness was also cross-examined by Mr Job QC to establish the foundation for a submission that an approval of the Appellant’s application would cut across the stated future planning intent for this part of Archer Street and, as a consequence, make it more difficult for the Respondent’s planning intention to be upheld. This planning intention is to protect and retain traditional building character in Archer Street.
  1. [130]
    The final submission that I consider necessary to deal with in this regard appears in the Appellant’s outline of Submissions. It was submitted on his behalf that the only conclusion reasonably open is that little or no weight should be given to the amendments to City Plan 2014 and the PSP.[64] I reject that submission.
  2. [131]
    The issue is clearly one that is finely balanced, and the weight to be given to the amendments made to City Plan 2014 and the PSP is a matter about which reasonable minds may differ, having regard to a wide range of considerations. The breadth of the considerations that may be relevant to the issue is evident from the multitude of reasons advanced on behalf of the Appellant in support of his case. Given that a number of the grounds relied upon to support the Appellant’s case weight were not made out, I have no hesitation in holding that this is a case where it is reasonably open for the amendments to City Plan 2014 and the PSP to be given not only weight, but determinative weight.
  3. [132]
    During the Appellant’s opening, Mr Gore QC sought to tender statements of evidence prepared by Mr Buckley and Mr Peabody. An objection was taken to those reports on the grounds of relevance. Mr Gore QC submitted that the two reports were to be relied upon only to advance the Appellant’s case with respect to the exercise of the discretion under s 60(2)(b) of the PA. 
  4. [133]
    The report of Mr Buckley and Mr Peabody deal with the changing nature of Toowong and planning decisions that have underpinned, and will continue to encourage that change.  I accept that the evidence establishes that Toowong is a Major Centre and that centre has undergone significant change. The rate of change appears unlikely to abate in the near future. As a general proposition, the planning documents in force encourage an uplift in development density and with it, a commensurate increase in the size and nature of built form. 
  5. [134]
    Accordingly, I accept that the reports prepared by Mr Peabody and Mr Buckley are relevant to the exercise of the discretion to establish that the face of Toowong has changed and will continue to change. Indeed, this is consistent with the evidence of Mr Elliott. No objection was taken to Mr Elliott’s evidence in this regard.
  1. [135]
    Whilst I accept that the evidence with respect to the changing nature of Toowong is relevant to the exercise of the discretion, it is not a consideration that truly advances the Appellant’s case. The point the Appellant wishes to make about the changing nature of Toowong is consistent with, and expressly encouraged in the NHP. It was put as highly as suggesting that there is a clear inconsistency as between the NHP and the Traditional building character overlay which seeks to retain traditional building character in Archer Street. It was Mr Buckley’s opinion that, from a planning perspective, this inconsistency should be resolved in favour of the NHP being a document that encourages significant redevelopment of Toowong as a Major Centre.
  2. [136]
    Whilst Mr Buckley’s views has merit from a first principles planning perspective, City Plan 2014 does not envisage that the inconsistency is resolved in the manner suggested by him. Section 1.5 of City Plan 2014 expressly provides that it is the overlay that prevails in the event of any inconsistency between it and the NHP. To accept the Appellant’s submission would be contrary to an express provision of City Plan 2014.
  3. [137]
    On balance, I was not persuaded that the amendments to City Plan 2014 and the PSP should be given little or no weight. The amendments represent deliberate contemporary planning that is consistent with a long held planning strategy of the Respondent. The strategy, which involves the retention of traditional building character and traditional character in Brisbane, is entitled to this Court’s respect.
  4. [138]
    Further, if the circumstances permitted, I would have given the amendments not just weight, but determinative weight and dismissed the appeal having regard to the following six considerations taken in combination.  These considerations would have tipped the balance in favour of refusal, if the circumstances allowed. The six considerations are as follows.
  5. [139]
    First, the nature of the development the subject of the application is not such that conditions of approval could, for the purposes of s 60(2)(d) of the PA, be imposed to achieve compliance with City Plan 2014, in its amended form.
  6. [140]
    Second, I accept Mr McDonald’s evidence to the effect that the demolition of the dwelling house would represent a substantial loss of traditional building character in circumstances where the house forms part of an exceptional setting of traditional houses. The dwelling house, once demolished, is lost forever. That, in my view, is an unsatisfactory planning outcome, particularly against the background of the findings I made in paragraphs [18] to [23] above.
  7. [141]
    Third, the amendments to City Plan 2014 and the PSP were publicly advertised in October and November 2016, a number of months before the application was treated as being properly made.[65] There appeared to be little doubt that “the industry” was aware that the amendments to City Plan 2014 were on their way and may have an impact on the assessment of applications such as that presently before the Court.
  8. [142]
    Fourth, the amendments are the product of a deliberate planning decision. There is no suggestion that the expression of planning policy resulting from the amendments is unsoundly based or, for planning reasons, not otherwise worthy of this Court’s respect.
  9. [143]
    Fifth, an approval of the application would be contrary to a deliberate planning policy that involves the retention of a high quality piece of traditional building character. Further, an approval has the potential to impact not only on the application of that planning policy to the land, but also adjoining land.
  10. [144]
    Mr McDonald was asked in evidence-in-chief what he considered demolition of the dwelling house would mean in terms of the protection of the remaining traditional building character houses in Archer Street. He said:

“…I think it would, inevitably, make the group harder to sustain. It’s a different position to, say, losing a house that’s – that’s on the end of a road or at the periphery. Losing one that’s – that’s prominent and central in a group is going to have more impact – more adverse impact than losing one of lesser calibre, lesser prominence and located on the edge.”

  1. [145]
    Mr McDonald was making the point that the dwelling house that is the subject of the application is a prominent house in the group of five cohesive traditional character houses in Archer Street. Earlier in his evidence he described its loss akin to “knocking out one of the front teeth” of the group of traditional houses. I accept this evidence.
  2. [146]
    The loss of the dwelling house, on any view, would weaken traditional building character in Archer Street. It would remove a prominent part of that character and fracture the group of five such that it would become three contiguous houses (numbers 30, 32, 34-38) with a fourth house (number 46-48) isolated to the south of the land.  The reduction in the strength of traditional building character in Archer Street has the real potential to make it more difficult to uphold a deliberate planning policy that involves protecting the traditional character buildings from demolition.
  3. [147]
    Sixth, the refusal of the application in reliance upon the amended planning provisions and PSP would not represent the end of the line for the Appellant. The Appellant has a right that exists today to make a request under s 29 of the PA for a superseded planning scheme to apply to the proposed development. Such a request must be made within 1 year after the amendments took effect.[66]
  4. [148]
    Upon receipt of such a request the Respondent would be obliged to make an election as to whether it will assess the application against, and only against, the superseded planning scheme and PSP. That election has the potential to lead to an approval or, alternatively, lead to a process that may found a claim for compensation. This consideration goes a considerable way to offsetting the unfairness that is said to accrue to the Appellant by giving the amendments to City Plan 2014 and the PSP determinative weigh, particularly where in the absence of the amendments an approval would have been forthcoming under s 60(2)(a) of the PA.

Conclusion

  1. [149]
    The Appellant has discharged the onus and the appeal will, in due course, be allowed.
  2. [150]
    I will give the parties an opportunity to formulate an agreed suite of conditions of approval and order as follows:
  1. (a)
    By 4pm on 6 July 2018 the Respondent is to deliver a draft suite of conditions to the Appellant; and
  2. (b)
    The appeal be listed for review at 9:15 am on 20 July 2018 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval.

Footnotes

[1] Exhibit 4, para 3(a) and Figure 1.

[2] Exhibit 4, para 22.1(a), (c) and 22.2(a). 

[3] Exhibit 4, para 22.1(c); Exhibit 17, which is attached to this judgment.

[4] Exhibit 4, para 22.2(a); Exhibit 12, para 4.1(a); Elliott: T2-26/L42.

[5] Exhibit 4, paragraph 23.2(a). Elliott: T3-27.

[6] Exhibit 2, p.128. 

[7] s.313(2)(e)(iii) of SPA.

[8] Exhibit 2, p.128.

[9] Exhibit 2, pp.128-129.

[10] s.45(1)(a) of the Planning Act 2016.

[11] Exhibit 8.

[12] Exhibit 12, p.2, para 2.2.1.

[13] Exhibit 12, pp.3 – 4 inclusive.

[14] Exhibit 12, para 2.5.1 and 4.1(a).

[15] Exhibit 4, p.10.

[16] Mariott v Brisbane City Council [2015] QPELR 910, 916 [20].

[17] Exhibit 7, paragraph 27, read with figures 8, 10, 12 and 13 in Appendix 1.

[18] Exhibit 5, figure 19.

[19] Exhibit 5, figures 10, 20, 21 and 26; Exhibit 7, figures 3 and 9.  

[20] Exhibit 5, figures 6, 11, 12, 13, 14, 15, 16, 17 and 18.

[21] Exhibit 5, p.16, figure 25; Exhibit 7, figures 1, 2 and 5. 

[22] Exhibit 5, figures 5, 18 and 19; Exhibit 7, p.17.

[23] Exhibit 5, p.16, figure 25; Exhibit 7, p.14, figure 5. 

[24] Exhibit 5, figure 18.

[25] Exhibit 5, figures 22 to 24 inclusive.

[26] Numbers 10, 32, 34, 40 and 46 Archer Street; Exhibit 5, figures 4, 11, 12, 13, 14 and 15.

[27] The group did comprise six houses but No.50 Archer Street has the benefit of a demolition approval that was acted upon in the course of the hearing (Exhibit 23).

[28] Exhibit 4, para 25.2(d).

[29] T2-41, Line 10.

[30] Exhibit 5, p.7 para 16 and figures 7, 8 and 9.

[31] Exhibit 15, p.60.

[32] Table 5.10.21 (Exhibit 15, p.60) and Table 5.9.65C (Exhibit 15, p.27).

[33] Exhibit 10.

[34] Exhibit 3, p.97.

[35] Exhibit 4, p.8, figure 4.

[36] Exhibit 4, p.21, para 30.1(c).

[37]T2-13, Line 1 to 19.

[38] Exhibit 1.

[39] Exhibit 1, para 2.

[40] Exhibit 3, pp.116 – 117.

[41] Overall Outcome s.8.2.21.2(2)(a), (d) and (h).

[42] Overall Outcome s.8.2.21.2(2)(b).

[43] Overall Outcome s.8.2.21.2(2)(c).

[44] Overall Outcome s.8.2.21.2(2)(e).

[45] s.1.3.2(3) of City Plan 2014 provides a ‘Note” is part of the planning scheme.

[46] Exhibit 3, p.116.

[47] s.108(b) and (c) of SPA.

[48] Exhibit 3, p.184, s.1.2.

[49] Exhibit 3, p.122, s.8.2.22.2(2).

[50] Vadale Pty Ltd v Landsborough Shire Council (1985) QPLR 338, 341 and Histpark Pty Ltd & Anor v Council of the Shire of Maroochy [2002] QPELR 134, 142.

[51] Section 46(2) of the Planning & Environment Court Act 2016 provides that s.45 of the PA applies for this Court’s decision on the appeal.

[52] Section 62 of the PA does not apply to this case given the application did not require referral to any referral agency.

[53] Such as Mariott v Brisbane City Council (supra).

[54] Exhibit 3, p.193.

[55] T1-37, Line 26.

[56] Exhibit 4, p.21, para 30.1(c).

[57] T2-13, Line 1 to 19.

[58] T2-41, Line 6 to 11.

[59] Exhibit 12, paragraphs 2.5.1, 3.4.1 and 4.1.

[60] Exhibit 26, paragraph 5.

[61] Exhibit 26, paragraph 47.

[62] Exhibit 26, paragraph 47.

[63] Exhibit 26, p.21, paragraph 19.

[64] Exhibit 26, paragraph 61.

[65] Exhibit 13, para 10.

[66] s.29(3) of the PA.

Close

Editorial Notes

  • Published Case Name:

    Klinkert v Brisbane City Council

  • Shortened Case Name:

    Klinkert v Brisbane City Council

  • MNC:

    [2018] QPEC 30

  • Court:

    QPEC

  • Judge(s):

    Williamson DCJ

  • Date:

    15 Jun 2018

Litigation History

EventCitation or FileDateNotes
Primary JudgmentApplication for Development Permit15 Aug 2017Application for development permit refused.
Primary Judgment[2018] QPEC 3015 Jun 2018Appeal against Brisbane City Council’s refusal of a development application for approval for building work allowed: Williamson QC DCJ.
Appeal Determined (QCA)[2019] QCA 4012 Mar 2019Application for leave to appeal granted; appeal dismissed: Gotterson and Philippides JJA and Boddice J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Histpark Pty Ltd v Maroochy Shire Council (2002) QPELR 134
2 citations
Jump To
Cite 1 - (2002) QPELR 134
Cite 2 - (2002) QPELR 134
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21
2 citations
Jump To
Cite 1 - [2018] QPEC 21
Cite 2 - [2018] QPEC 21
Mariott v Brisbane City Council [2015] QPELR 910
2 citations
Jump To
Cite 1 - [2015] QPELR 910
Cite 2 - [2015] QPELR 910
Vadale v Landsborough Shire Council (1985) QPLR 338
2 citations
Jump To
Cite 1 - (1985) QPLR 338
Cite 2 - (1985) QPLR 338

Cases Citing

Case NameFull CitationFrequency
Andema Pty Ltd v Noosa Shire Council [2020] QPEC 462 citations
Brisbane City Council v Klinkert [2019] QCA 40 1 citation
Cheng v Brisbane City Council [2023] QPEC 492 citations
Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 413 citations
Di Carlo v Brisbane City Council [2019] QPEC 42 citations
DVB Projects Pty Ltd v Council of the City of Gold Coast [2022] QPEC 402 citations
GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 161 citation
GTH Project No. 4 Pty Ltd v Noosa Shire Council [2024] QPEC 262 citations
K&K (GC) Pty Ltd v Gold Coast City Council [2020] QPEC 402 citations
Roseingrave v Brisbane City Council (No. 2) [2022] QPEC 432 citations
Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman) [2020] QPEC 612 citations
The Planning Place Pty Ltd v Brisbane City Council [2018] QPEC 622 citations
1

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