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Delta Contractors (Aust) Pty Ltd v Brisbane City Council[2018] QPEC 41

Delta Contractors (Aust) Pty Ltd v Brisbane City Council[2018] QPEC 41

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

 

 

CITATION:

Delta Contractors (Aust) Pty Ltd v Brisbane City Council [2018] QPEC 41

PARTIES:

DELTA CONTRACTORS (AUST) PTY LTD
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

2747 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

10 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 and 24 April 2018, and 20 and 21 August 2018

JUDGE:

Kefford DCJ

ORDER:

I order:

(a) by 4pm on 15 October 2018 council is to deliver a draft suite of conditions to the appellant for the preliminary approval for building work for the extensions and the preliminary approval for making a material change of use; and

(b) the appeal be listed for review at 9.15am on 7 November 2018.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a proposed partial demolition of a pre-1946 dwelling house – whether the partial demolition results in the loss of integral components which contribute to streetscape character – whether the proposed partial demolition diminishes traditional building form – whether the partial demolition will result in loss of traditional building character – whether the partial demolition reduces the building’s positive contribution to the visual character of the street – whether the development ought be approved having regard to relevant matters

LEGISLATION:

Planning Act 2016 (Qld), s 45, s 59, s 60

Planning and Environment Court Act 2016 (Qld), s 43, s 45

CASES:

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21, approved

Klinkert v Brisbane City Council [2018] QPEC 30, approved

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

COUNSEL:

D Whitehouse for the appellant

N Loos for the respondent

SOLICITORS:

Sajen Legal for the appellant

City Legal – Brisbane City Council for the respondent

Introduction

  1. [1]
    The appellant seeks to redevelop land located at 21 Lamington Terrace, Dutton Park. The land comprises two lots of 405 square metres improved by a dwelling house constructed prior to 1911, with additions constructed prior to 1923 and after 1946. The dwelling house currently straddles the two lots.
  1. [2]
    In August 2016, the appellant lodged a code assessable development application to facilitate its desire to demolish parts of the house and move the narrow house to one lot, thereby leaving the other lot vacant.
  1. [3]
    On 15 June 2017, Brisbane City Council (“Council”) refused the appellant’s development application.  This appeal is against that decision. 

The dwelling house

  1. [4]
    The dwelling house is a detached, high-set, timber-framed house. It has a hip roof form incorporating an approximate 1.5 metre wide transverse ridge at medium pitch. The roof is sheeted in corrugated steel roofing. It has a narrow continuous eaves overhang. The front of the house features a wide gabled entrance pediment.
  1. [5]
    The experts agree that the house was constructed in 1902/03 for James and Mary Costello and is a pre-1911 building within the meaning of Brisbane City Plan 2014 (“City Plan”).  By March 1923, a verandah had been added on the left side of the building. 
  1. [6]
    Further alterations were made over time. Those “unsympathetic” alterations include:
  1. (a)
    the enclosure of the original open front verandah;
  1. (b)
    additions to the rear of the building on the right-hand side (made after 1946);
  1. (c)
    the addition of a ground level skillion-roofed laundry and back stairs (made after 1946);
  1. (d)
    the replacement of the original front stairs with the current front stairs; and
  1. (e)
    the replacement of the original perimeter timber stumps with a stucco base.
  1. [7]
    The experts agree that the house expresses traditional building character and contributes positively to the visual character of the street. It is capable of structural repair.

The proposed development

  1. [8]
    The appellant seeks a preliminary approval for building work to authorise partial demolition and repositioning of a pre-1911 dwelling house and its pre-1947 verandah. It also seeks a preliminary approval for building work to authorise extensions to the house; and a development permit for material change of use to authorise the use of the altered dwelling on one of the two existing small lots.
  1. [9]
    The relevant demolition works involve demolition of:
  1. (a)
    part of the front right side balcony, which is pre-1911 fabric;
  1. (b)
    a strip (running front to back) of the central core of the building, including floorboards, ceiling etc., which is pre-1911 fabric;
  1. (c)
    a strip (running front to back) of the front roof of the building, which is pre-1911 fabric; and
  1. (d)
    the left side verandah, which was added in 1923 or earlier.
  1. [10]
    With the central strip removed, the two remaining sides are proposed to be fused together. The works also involve moving the existing pre-1911 chimney, which is currently constructed with its base on the ground. The plans of the proposed development do not depict the new house retaining that part of the chimney located between the floor boards and the ground. No detail has been provided about the mechanism proposed to support the weight of the chimney.
  1. [11]
    The appellant also proposes to undertake building work to reverse the “unsympathetic” changes that were made over time.  For example, it intends to open up the enclosed front verandah and re-support the house on traditional timber stumps.

The assessment regime

  1. [12]
    The Sustainable Planning Act 2009 (Qld) was in force when the appellant made its development application and Council notified its decision.  However, as the Planning Act 2016 commenced before the appeal was filed, the applicable statutory regime is now that prescribed under that Act.[1]
  1. [13]
    The appeal proceeds by way of hearing anew[2] and it is for the appellant to establish that the appeal should be upheld.[3]
  1. [14]
    Section 45(3) of the Planning Act 2016 requires that code assessment 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.
  1. [15]
    The decision must be based on that assessment.[4]  Pursuant to s 60 of the Planning Act 2016, after carrying out the assessment, this court:
  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development;
  1. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks;
  1. (c)
    may impose development conditions on an approval; and
  1. (d)
    may, to the extent the development does not comply with some or all the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.

The issues in dispute

  1. [16]
    With respect to the proposed partial demolition, in accordance with Practice Direction No. 1 of 2018, an agreed list of issues in dispute was tendered on 20 August 2018. It identifies the relevant assessment benchmark as the Traditional building character (demolition) overlay code. 
  1. [17]
    The provisions the focus of the dispute are:
  1. (a)
    acceptable outcomes AO1.1 and AO5(c) and performance outcomes PO1, PO2 and, if it applies, PO5; and
  1. (b)
    overall outcomes (2)(a), (b), (d) and (h).
  1. [18]
    Although the appellant disputes the applicability of performance outcome PO6 in Section B of the Traditional building character (demolition) overlay code, it conceded that, should Section B apply, the proposed development does not comply with performance outcome PO6.
  1. [19]
    In accordance with s 5.3.3(2)(c)(iii) of City Plan (Version 3), the proposed development will comply with the Traditional building character (demolition) overlay code if it complies with the purpose and overall outcomes of the code; or the performance or acceptable outcomes of the code.
  1. [20]
    The agreed list of issues in dispute also identifies, as issues to be determined by the court, questions of compliance with land use strategies L20.2 and L20.3 of Element 2.1 of the Strategic framework and strategic outcome (1)(c) of Theme 2 of the Strategic framework. These provisions form part of a traditional building character policy direction in the Strategic framework.
  1. [21]
    Part of the identified purpose of the Traditional building character (demolition) overlay code is the implementation of Council’s policy direction with respect to traditional building character and traditional character. As such, the nominated provisions of the Strategic framework provide relevant context when construing the Traditional building character (demolition) overlay code. However, they are not identified in City Plan as applicable assessment criteria for code assessment. As such, they are not assessment benchmarks[5] and, pursuant to s 45(3)(b) of the Planning Act 2016, no assessment is to be carried out against them. 
  1. [22]
    With respect to the partial demolition, Council submits that if the development does not comply with some or all of the assessment benchmarks, it is not possible to envisage conditions that could be imposed to make the development comply. The appellant did not dispute this.[6] 
  1. [23]
    During final submissions, Council indicated that it does not seek to advance a case alleging non-compliance with any of the applicable assessment benchmarks for the preliminary approval for building work associated with the proposed extensions to a pre-1947 house or the development permit for material change of use. The appellant likewise confirmed that the central issue it sought to have determined related to the proposed partial demolition of the house. Accordingly, this court must approve the application to that extent.
  1. [24]
    It was common ground between the parties that, in the event that I determine that the development application for partial demolition should be refused, it would be appropriate to either give a preliminary approval only for the other parts of the development application; or impose a condition restraining the commencement of development until approval is obtained for any necessary partial demolition.

Acceptable outcome AO1.1

  1. [25]
    Acceptable outcome AO1.1 of the Traditional building character (demolition) overlay code states:

“Development ensures that the building does not lose integral components such as feature roof forms and side verandahs, which contribute to its streetscape character.”

  1. [26]
    In the Joint Expert Report, the heritage architects agreed that:

“in relation to acceptable outcome AO1.1, the proposed partial demolition will result in the loss of integral components which contribute to the building’s streetscape character in its roof form, part of the central core and parts of the front verandah such that the proposal does not satisfy acceptable outcome AO1.1, and correspondingly, assessment is required against performance outcome PO1 of the Demolition Code.  The experts disagree, however, about whether the left side additions are integral components as set out in the points of disagreement.”

(emphasis added)

  1. [27]
    Mr McDonald, the heritage architect retained for the appellant, subsequently resiled from that agreement. In his individual report, Mr McDonald opines that “integral components” of typical, early 20th century, pre-1911, “timber and tin” traditional character houses are:
  1. (a)
    their single storey timber core form often with exposed framing on verandahs;
  1. (b)
    a medium pitched hip or pyramidal roof, mostly corrugated iron, and sometimes incorporating gables;
  1. (c)
    verandahs surrounding the timber core on one, two or three sides, with detached or engaged roofs, and often incorporating entrance pediments; and
  1. (d)
    their elevation on timber stumps enclosed with battens.
  1. [28]
    He concludes, at [3.1.8]-[3.1.9] of his statement of evidence, that:

“In all instances, the proposal either retains or retrieves all of these integral components whereby:

  • the proposal will remove the heavy stucco base and front walls and open up the front verandah to express the subject building’s single-storey timber core with exposed framing on the verandah
  • the proposal will express a medium pitched hipped roof form sheeted in corrugated iron and incorporating a gabled entrance pediment
  • the proposal will express a timber core surrounding on one side (the front) with a “detached” verandah roof form incorporating an entrance pediment
  • the proposal will express a house elevated on timber stumps enclosed with battens.

Based on the above considerations, I am of the opinion that the proposal will alter, but will not lose any, integral component and that the average person looking at the completed proposal would not notice anything awkward, untoward or otherwise visually incongruous with the outcome.”

  1. [29]
    Mr Kennedy, the heritage architect retained by Council, maintained his opinion, as originally agreed with Mr McDonald, that those parts of the roof form, central core and front verandah that are proposed to be demolished are integral components that contribute to its streetscape character. He also opined that the side verandah that had been added by 1923 was an integral component that contributes to the subject house’s streetscape character.
  1. [30]
    City Plan does not define “integral”.  Pursuant to section 1.3.1(1)(e) of City Plan, it is to be given its ordinary meaning. 
  1. [31]
    The Macquarie Dictionary relevantly defines “integral” as:

“1. of or relating to a whole, belonging as part of a whole; constituent or component;

  1.  necessary to the completeness of the whole;
  1.  made up of parts which together constitute the whole.”
  1. [32]
    The appellant submits that the court must first look at whether, by virtue of the proposed development, the building loses integral components and then it must determine whether those components contribute to its streetscape character. It submits that the proposed development would alter, but not lose, integral components. It further submits that the left side additions are not necessary in order for the subject building to express itself as a complete and whole building similar to how the building originally appeared.
  1. [33]
    As the photos of the house in Exhibit 5 demonstrate, the house has an imposing presence in the Lamington Terrace streetscape. It is an identifiably pre-1947 house.
  1. [34]
    I accept the opinion expressed by Mr Kennedy during his cross-examination that the components of the house that are “integral” are:
  1. (a)
    the single storey core;
  1. (b)
    the elevation of the core on stumps;
  1. (c)
    the grand front entrance pediment;
  1. (d)
    the corrugated iron roof;
  1. (e)
    the narrow continuous eaves to the main roof;
  1. (f)
    the house’s roof shape and pitch, being a hip roof form with a wide transverse ridge at medium pitch; and
  1. (g)
    the house’s wide core. 
  1. [35]
    The single storey elevated core, grand front entrance pediment, corrugated iron roofing and narrow continuous eaves are to be retained. However, the removal of a 1 800 millimetre strip (running front to back) of the central core and roof of the building will result in the loss of the hip roof form with wide transverse ridge at medium pitch, as well as the house’s wide core. 
  1. [36]
    The proposed roof structure is a hip roof form with a longitudinal hip ridge, rather than the existing transverse ridge. The new roof structure would present to the street as a pyramidal form.
  1. [37]
    Although early 20th century pre-1911 timber and tin houses could have a pyramidal roof form, that was not the streetscape character of the subject house.  Acceptable outcome AO1.1 focuses on the retention of the subject house’s streetscape character, not the creation of a streetscape character that is consistent with traditional building character generally.  As such, the replacement of the existing roof shape and pitch with the proposed roof does not demonstrate that there will not be a loss of an integral components which contributes to the house’s streetscape character. 
  1. [38]
    I accept the evidence of Mr Kennedy that the difference in the roof form is one of fundamental importance. As was noted by Mr Kennedy, the pyramidal roof forms did not come into existence until after about 1910. The subject house was constructed in 1902/03.
  1. [39]
    In his statement of evidence, Mr McDonald suggests that if the existing transverse ridge is regarded as an integral component of the existing roof form, the proposed roof form could be varied to achieve such an outcome. Two variants are depicted in his statement of evidence. I accept the evidence of Mr Kennedy that such variations also involve the loss of an integral component that contributes to the house’s streetscape character. While each of the variations would result in a transverse ridge, that ridge can only be achieved by changing the pitch of the roof and by creating a “bastard ridge”.  In short, it involves the loss of a traditional roof form and its substitution with a non-traditional roof form, being one with either a “bastard ridge” or two “bastard ridges”.  As such, I am satisfied that it is not possible to achieve compliance by the imposition of a condition requiring a variant of the roof form.
  1. [40]
    The wide core is also an integral component that contributes to the house’s streetscape character. I accept the opinion of Mr Kennedy that the width of the house is important to how the house presents to the street, namely as a wide house on a double lot. The width of the core is material to the house’s streetscape character. It creates a sense of grandeur, particularly in combination with the front pediment. I accept the evidence of Mr Kennedy that the grand front entrance pediment is one that is suited to a wider traditional “timber and tin” character house with a side verandah.  The proposed demolition results in a house that presents as having a disproportionate front pediment.  The change is a meaningful one.  In my view, the loss of the wide core involves the loss of an integral component that contributes to the house’s streetscape character.
  1. [41]
    In the joint report, Mr Kennedy also opined that the left side verandah was an integral component of the house that contributes to its streetscape character. Although it was added after 1902/03, having regard to the available documentary evidence, Mr Kennedy opined that the side verandah was likely designed by the person who designed the original house and added shortly after 1902/03. He opined that the house was likely built with a view to adding the verandah at a later date.
  1. [42]
    The appellant dismissed Mr Kennedy’s evidence in this regard as “speculation”.  Mr Kennedy disclosed the basis of his opinions, including the physical and documentary evidence on which he relied in forming the opinions.  No serious challenge was made to the basis of his opinion.  I accept his opinion to be soundly based.  I accept Mr Kennedy’s view that the side verandah makes a strong contribution to the Lamington Terrace streetscape and that, while constructed sometime after the original house, it is an integral component of the house.  Its demolition also results in non-compliance with acceptable outcome AO1.1.

Performance outcome PO1

  1. [43]
    Performance outcome PO1 of the Traditional building character (demolition) overlay code states:

“Development involving partial demolition of traditional elements, detailing and materials constructed in 1946 or earlier does not diminish traditional building form and roof styles, where:

  1. (a)
     forward of the primary ridge or primary gable roof form; or
  1. (b)
     on the side elevation of the building where on a corner lot.

Note- Where demolition results in the loss of integral components, assessment against Section B of this code is also required.”

  1. [44]
    “Diminish” is not defined in City Plan.  The Macquarie Dictionary relevantly defines “diminish” as follows:

“1. to make smaller; lessen, reduce;

2. to reduce in importance, authority, etc;

3.  to become less, decrease.”

  1. [45]
    It is common ground that the proposed development involves partial demolition of traditional elements, detailing and materials constructed in 1946 or earlier forward of the primary ridge. The relevant elements, detailing and materials are the 1 800 millimetre section through the house’s core, the removal of the original roof form (being the wide transverse hip ridge form), parts of the front verandah and the left-hand side verandah.
  1. [46]
    Mr McDonald is of the opinion that the partial demolition would not diminish the traditional building form and roof style because the result will be a house that is left with a building form and roof style that accords with the general description of traditional building form and roof styles in the Traditional building character planning scheme policy. He accepted that the result would be a different traditional building form than that which the house currently expresses. However, he regarded the modification as acceptable as it was, in his view, within the stylistic norms of the era.
  1. [47]
    Mr Kennedy took a different approach to the assessment. He considered whether the proposed demolition would diminish the traditional building form and roof style exhibited by the subject house.
  1. [48]
    I consider that the approach taken by Mr Kennedy is the appropriate one. To determine whether the proposed demolition “diminishes” the traditional building form or roof styles it is necessary to consider the traditional building form and roof styles of the subject house.   
  1. [49]
    The current traditional building form is a house with a wide core with attached verandah raised above the ground. The roof form is a wide, medium pitched transverse hip ridge with a generous front entrance pediment.
  1. [50]
    Mr Kennedy acknowledged that there are smaller versions of the style of “timber and tin” house in question, including one with a verandah on the front only.  In the Joint Expert Report, Mr Kennedy explains that houses with verandahs only on the front elevation were situated mainly on 16 perch lots, whereas houses with verandahs on the front and one side, such as the subject house, usually straddled double lots.  Each of these different building forms reflected the social status of the occupants and the economic aspirations of the street and suburb.  The larger houses were also located on tops of hills, with smaller versions on lower lots.  I accept Mr Kennedy’s evidence that each is a recognisable traditional building form in its own right. 
  1. [51]
    The removal of a 1 800 millimetre section through the core of the building and the removal of the left-hand side verandah materially detracts from the existing traditional building form of the house, being the larger form of house.  It also results in a material diminution in the roof style, as it removes the original roof shape and pitch and replaces it with one that is out of scale with the generous original entrance pediment. 
  1. [52]
    In my view, the proposed development does not comply with performance outcome PO1, nor could it be conditioned to comply.

Performance outcome PO2

  1. [53]
    Performance outcome PO2 of the Traditional building character (demolition) overlay code is an additional criteria that applies to a pre-1911 building. It states:

“Development ensures that the building does not lose integral components that contribute to its traditional building character.”

  1. [54]
    Neither “traditional character” nor “traditional building character” is a defined term. 
  1. [55]
    I have read His Honour Judge Williamson QC’s detailed analysis in Klinkert v Brisbane City Council [2018] QPEC 30 at [49] to [66] and [73] to [74] about traditional character and traditional building character and the guidance provided by the Traditional building character planning scheme policy.  I agree with his analysis.  The two terms have different meanings.  Traditional character relates to a streetscape or a locality.  Traditional building character relates to a building.
  1. [56]
    That the two terms are separate concepts is also evident from the following provisions of City Plan:
  1. (a)
    overall outcome (2)(a), which uses the two terms, separated by the word “and”;
  1. (b)
    overall outcome (2)(c), which refers to “traditional character” as something that relates to the locality;
  1. (c)
    overall outcome (2)(e), which uses “traditional building character” in relation to “a residential building”;
  1. (d)
    performance outcome PO2, which uses the word “its” to connect traditional building character to “the building”;
  1. (e)
    performance outcome PO4, which uses “traditional building character” in relation to “elements of the building”; and
  1. (f)
    acceptable outcomes AO5(c) and (d), which clearly demarcate between the two concepts by featuring each in a separate provision, with “traditional character” used in relation to “a street”.
  1. [57]
    Mr McDonald is of the opinion that:

“… the removal of the relatively small central part of the building core and the relatively small parts of the front verandah (whilst acknowledged as original components of the building) are not considered necessary for the building to express itself as a complete and whole building consistent with the notion of traditional building character.”

  1. [58]
    I do not accept that this is the correct approach. The issue is whether there will be a loss of components that are integral to the traditional building character of the subject house. This necessarily requires consideration of the traditional building character of the subject house, not traditional building character as an abstract notion.
  1. [59]
    The traditional building character of the subject house is that of a wide “timber and tin” house with attached side verandah, a wide hipped roof and an elaborate entrance pediment.
  1. [60]
    For the reasons expressed above, the loss of the 1 800 millimetre section through the core of the house and its roof will result in the loss of an integral component that materially contributes to the house’s traditional building character.
  1. [61]
    The proposed development does not comply with performance outcome PO2, nor could it be conditioned to comply.

Applicability of Section B

  1. [62]
    As is apparent from the quote of performance outcome PO1 at [43] above, a note at the end of that performance outcome requires demolition to be assessed against Section B if the demolition results in the loss of integral components.
  1. [63]
    Pursuant to s 1.3.2(3) of City Plan, a note is part of the planning scheme.
  1. [64]
    The appellant’s contention that Section B does not apply is premised only on its contention that the partial demolition does not result in the loss of integral components. For the reasons outlined above, I do not agree.

Acceptable outcome AO5

  1. [65]
    Acceptable outcome AO5 of the Traditional building character (demolition) overlay code states:

“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;
  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 to demonstrate ‘structurally unsound’.”

  1. [66]
    The experts agree that the house expresses traditional building character, is capable of structural repair, and contributes positively to the traditional character of the street. The agreement of the experts is clearly referable to the parts of the house that involve the pre-1911 fabric and the pre-1947 fabric. As such, I am satisfied that the proposed development does not comply with sub-paragraphs (a), (b) and (d) of acceptable outcome AO5.
  1. [67]
    With respect to acceptable outcome AO5(c), Council submitted that the test is either not applicable or not satisfied. It submits the test is not applicable because it is cast in terms of complete demolition not partial demolition.
  1. [68]
    I do not accept that the provision is not engaged. It is clear from the note at the end of performance outcome PO1 that it is intended to apply to partial demolition. It is appropriate to read the provision with that context in mind.
  1. [69]
    Further, pursuant to s 6 and Schedule 2 of the Planning Act 2016 and s 1.3.1(1) of City Plan, “building” is defined to include “any part of a building”.
  1. [70]
    For reasons provided above, the proposed demolition will result in a loss of traditional building character, being that of a wide “timber and tin” house with attached side verandah, a wide hipped roof and an elaborate entrance pediment.  The loss is a material one.  As noted at [50] above, the wide form of “timber and tin” house is a recognisable traditional building form in its own right.  That form of house built to straddle double lots reflected the social status of the occupants.  The loss is also material because it renders the retained pediment out of scale, as well as resulting in the loss of the wide hipped roof style.
  1. [71]
    In my view, the proposed development does not comply with acceptable outcome AO5, nor could it be conditioned to comply.

Performance outcome PO5

  1. [72]
    Performance outcome PO5 of the Traditional building character (demolition) overlay code states:

“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.”
  1. [73]
    As I noted at [66] above, the experts agree that the house expresses traditional building character, is capable of structural repair and that it contributes positively to the traditional character of the street.  They also agree that full demolition of the house would not comply with performance outcome PO5.
  1. [74]
    Mr McDonald notes that the house has attributes that currently do not contribute positively to the visual character of the street and that the proposed development will improve their presentation. However, the opening up of the enclosed front verandah, removal of the stucco base and replacement of the front stairs with a traditional form of front stairs does not demonstrate that the development involves a building that does not contribute positively to the visual character of the street.
  1. [75]
    Mr Kennedy opines that the subject house in its current expansive setting is part of an intact streetscape established in 1946 or earlier. The house adjoins a small traditional “timber and tin” house on a singular lower lot at the corner of Deighton Road, but on the higher eastern side it adjoins three larger houses, each of which was constructed in 1946 or earlier and each of which straddle two lots. 
  1. [76]
    The house makes a positive contribution to the streetscape. It forms part of a precinct of four houses that are “attractive” in their setting in that they provide a sense of grandeur, due to their width and their visual relationship to each other.  I accept the opinion of Mr Kennedy that the partial demolition of the house would lessen the contribution it currently makes to the visual character of Lamington Terrace. 
  1. [77]
    In my view, the proposed development does not comply with performance outcome PO5, nor could it be conditioned to comply.

Overall outcome (2)(a)

  1. [78]
    Overall outcome (2)(a) of the Traditional building character (demolition) overlay code states:

“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. [79]
    Mr McDonald is of the opinion that the proposal would substantially retain the extant original building and would result in a building that would continue to express traditional building character within the stylistic norms of its type and within the meaning of traditional building character in the Traditional building character planning scheme policy.
  1. [80]
    Mr Kennedy was of the view that the partial demolition would substantially diminish, rather than protect, the traditional form and character of the house, as well as altering its visual relationship to the neighbouring houses that together give Lamington Terrace its traditional building character.
  1. [81]
    For the reasons provided in paragraphs [54] to [56] above, I consider that Mr Kennedy has erred in his use of the terms “traditional character” and “traditional building character”.  However, I accept the underlying sentiments he expresses.
  1. [82]
    For reasons already outlined, in my view the partial demolition would not protect the traditional building character of the house. I also accept the evidence of Mr Kennedy that it would alter the visual relationship to the neighbouring houses. That is an important part of Lamington Terrace’s traditional character. I am not satisfied that the proposed development complies with overall outcome (2)(a), nor that it could be conditioned to comply.

Overall outcome (2)(b)

  1. [83]
    Overall outcome (2)(b) of the Traditional building character (demolition) overlay code states:

“Development protects a federation era or earlier building by limiting demolition or removal to only where a building is structurally unsound.”

  1. [84]
    With respect to this overall outcome, Mr McDonald expressed the view that under the proposal the subject building would continue to express a federation-era character, though not necessarily the federation-era character that it presently expresses. Mr Kennedy, on the other hand, took the approach that the proposed development involves the direct loss of structurally sound pre-1911 integral components fundamental to the subject house’s expression of its federation era building character.  In cross-examination, Mr Kennedy accepted that partial demolition had to involve the loss of an integral component. 
  1. [85]
    I do not accept Mr McDonald’s approach to be correct. The code is concerned with protection of the building itself. The provision does not seek to ensure that something of “federation era character” is constructed on land in place of existing structures.  The focus of the provision is the prevention of demolition or removal unless the building is not structurally sound.
  1. [86]
    The appellant submits that if overall outcome (2)(b) meant that there could be no partial demolition of a federation-era or earlier building, then performance outcome PO2, which relates solely to pre-1911 buildings, would have no further utility. I disagree. The appellant can demonstrate compliance with the code by demonstrating compliance with the purpose and overall outcomes or the performance outcomes.  If the demolition involves a structurally sound federation era or earlier building, then approval may nevertheless be able to be achieved by demonstrating that the pre-1911 building does not lose integral components that contribute to its traditional building character.
  1. [87]
    I am not satisfied that the proposed development complies with overall outcome (2)(b), nor that it could be conditioned to comply.

Overall outcome (2)(d)

  1. [88]
    Overall outcome (2)(d) of the Traditional building character (demolition) overlay code states:

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

  1. [89]
    Mr McDonald opined that the proposed development would still allow the subject building to continue to contribute positively to the streetscape. Once again, this was because he considered that it would continue to express traditional building character within the stylistic norms of its type.
  1. [90]
    Mr Kennedy was of the opinion that replacing the subject house in its current expansive setting with two small lot houses compromises, rather than protects, an intact streetscape established in 1946 or earlier.
  1. [91]
    The focus of the provision is on protection of the building where it forms an important part of a streetscape established in 1946 or earlier.
  1. [92]
    I accept that the streetscape was one established in 1946 or earlier. A comparison of the 1946 aerial photograph of Lamington Terrace with the current aerial photograph demonstrates the streetscape, in terms of the pattern of houses and lot sizes, is intact.
  1. [93]
    There was no dispute between the experts about the importance of the house as part of the streetscape. That is unsurprising having regard to the streetscape character survey at Appendix 1 to Mr McDonald’s statement of evidence.
  1. [94]
    For reasons already expressed above, I am not satisfied that the proposed development protects the building. It does not comply with overall outcome (2)(d), nor could it be conditioned to comply.

Overall outcome (2)(h)

  1. [95]
    Overall outcome (2)(h) of the Traditional building character (demolition) overlay code states:

“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.”

  1. [96]
    Mr McDonald was of the opinion that the partial demolition would not conflict with this overall outcome as the subject building would be retained and would continue to make a positive contribution to the traditional character of the precinct.
  1. [97]
    Mr Kennedy’s evidence was that the proposed development erodes rather than retains an attractive precinct of four adjoining pre-1947 residential buildings, each of which is spread over two lots.
  1. [98]
    I accept the evidence of Mr Kennedy that the proposed development will erode the present precinct of residential buildings constructed in 1946. As I have already found, there will be a material diminution in the traditional building character of the subject house. Nevertheless, this does not, to my mind, equate to a failure to retain a precinct of residential buildings constructed in 1946 or earlier.
  1. [99]
    I am satisfied that the proposed development complies with overall outcome (2)(h).

The residual discretion

  1. [100]
    Under s 60(2)(b) of the Planning Act 2016, the court may approve an application even if the development does not comply with some of the assessment benchmarks. 
  1. [101]
    With respect to the exercise of this residual discretion, it was common ground between the parties that the approach that ought be taken is that outlined by His Honour Judge Williamson QC in Klinkert v Brisbane City Council [2018] QPEC 30 at [101]-[102].  I have considered His Honour’s detailed analysis of the statutory assessment regime for code assessment under the Planning Act 2016 and respectfully agree.
  1. [102]
    At [102], His Honour said:

“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 an earlier provision of the Act, which in this case includes, inter alia, s 45.”

  1. [103]
    The appellant submits that the court should have regard to the reasons advanced by Mr McDonald at paragraph 4.1 of his statement of evidence, which he says justify a decision to approve the proposed development.
  1. [104]
    Mr McDonald identified three matters, namely:
  1. (a)
    the proposal complies with the broad policy intent of City Plan to protect Brisbane’s traditional building character as the proposal retains and enhances the subject building’s traditional character;
  1. (b)
    the subject building is located in a good traditional streetscape setting but its current unattractive appearance does not promote public appreciation of the subject building’s traditional character; and
  1. (c)
    the proposal would retrieve the subject building’s lost traditional character for the benefit of the public and would retain it in a traditional setting where it would contribute to the betterment of the character housing precinct in which it is located and where it would continue to be appropriately protected for future generations.
  1. [105]
    The three matters referenced by Mr McDonald do not involve considerations in the relevant assessment benchmarks. Further, no submissions were made by the appellant about how the matters fell within those prescribed by regulation and to which regard may be had under s 45(3) of the Planning Act 2016.  I am not persuaded regard may be had to the matters referred to by Mr McDonald.
  1. [106]
    Even if the matters were relevant, I am not persuaded that they justify an approval.
  1. [107]
    With respect to the first matter, I am not satisfied that the proposed development retains the house’s traditional building character or the traditional character of the street. To the extent that the proposed development will result in removal of the heavy stucco base and front walls, opening up the front verandah to express a single-storey timber core with exposed framing on the verandah, I do not regard the benefits as sufficient to justify the identified losses.
  1. [108]
    As to the second matter, I do not accept that the present unattractive appearance does not promote public appreciation of the subject building’s traditional character or its traditional building character. Mr McDonald’s position in this respect is at odds with his acceptance that the house in its current form expresses traditional building character and contributes positively to the visual character of the street.
  1. [109]
    Further, and in any event, this ground is unpersuasive given the relevant planning outcomes are ones that seek to preserve the traditional building character of a house, even if the house is not a “pristine” example of traditional building character and is not aesthetically pleasing.[7]
  1. [110]
    There is contest between the experts with respect to the third matter. Mr McDonald thinks that the new proposal would be better. Mr Kennedy disagrees. I accept the views of Mr Kennedy. The loss of the houses width and the change to the roof style is not, in my view, made good by the end product. It will result in a pediment that appears out of scale; a loss of part of the grandeur present in the street associated with the existing wide form of the house in its present location straddling two lots; and the loss of visual harmony in terms of the present relationship between the houses in the streetscape.

Conclusion

  1. [111]
    I am not satisfied that the appellant has discharged the onus with respect to the development application for preliminary approval for building work to facilitate the partial demolition.
  1. [112]
    In due course:
  1. (a)
    the appeal will be dismissed insofar as it relates to the preliminary approval for building work to facilitate the partial demolition and will otherwise be allowed; 
  1. (b)
    that part of the development application seeking a preliminary approval for building work for partial demolition is to be refused;
  1. (c)
    that part of the development application seeking a preliminary approval for building work associated with the proposed extensions to a pre-1947 house is to be approved subject to:
  1. (i)
    a condition that the development must not commence until an effective development permit is obtained for partial demolition to the extent required to facilitate the building work; and
  1. (ii)
    such further conditions as agreed between the parties or otherwise determined by the court;
  1. (d)
    with respect to that part of the development application seeking a development permit for the making of a material change of use, a preliminary approval only is to be granted.  The preliminary approval is to be subject to:
  1. (i)
    a condition that the development must not commence until an effective development permit is obtained for partial demolition to the extent required to facilitate the building work; and
  1. (ii)
    such further conditions as agreed between the parties or otherwise determined by the court.
  1. [113]
    I will give the parties an opportunity to formulate an agreed suite of conditions of approval for the preliminary approval for building work for the extensions and the preliminary approval for making a material change of use. I intend to order:
  1. (a)
    by 4pm on 15 October 2018 Council is to deliver a draft suite of conditions to the appellant for the preliminary approval for building work for the extensions and the preliminary approval for making a material change of use; and
  1. (b)
    the appeal be listed for review at 9.15am on 7 November 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 conditions.

Footnotes

[1]  See analysis in Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21, [16] – [89].

[2]  Planning and Environment Court Act 2016 (Qld) s 43.

[3]  Planning and Environment Court Act 2016 (Qld), s 45.

[4]  Planning Act 2016, s 59(3).

[5]  The land is in the Character (Infill housing) zone and is subject to the West End-Woolloongabba district neighbourhood plan, the Traditional building character overlay and numerous other overlays of no present relevance.  Pursuant to s 5.2(1)(c) and s 5.3.3(1)(c) of City Plan, the assessment criteria for the partial demolition and repositioning of the dwelling house does not include   are limited to the Traditional building cdo not include provisions of the Strategic framework.  

[6]  See Written Submissions on behalf of the Appellant p 8 [27] and p 20 [72] and [73] for the matters the appellant relies on to assert approval ought be given.

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

Close

Editorial Notes

  • Published Case Name:

    Delta Contractors (Aust) Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Delta Contractors (Aust) Pty Ltd v Brisbane City Council

  • MNC:

    [2018] QPEC 41

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    10 Sep 2018

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
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21
2 citations
Jump To
Cite 1 - [2018] QPEC 21
Cite 2 - [2018] QPEC 21
Klinkert v Brisbane City Council [2018] QPEC 30
3 citations
Jump To
Cite 1 - [2018] QPEC 30
Cite 2 - [2018] QPEC 30
Cite 3 - [2018] QPEC 30
Unterweger v Brisbane City Council [2011] QPEC 134
2 citations
Jump To
Cite 1 - [2011] QPEC 134
Cite 2 - [2011] QPEC 134
Unterweger v Brisbane City Council [2012] QPELR 335
2 citations
Jump To
Cite 1 - [2012] QPELR 335
Cite 2 - [2012] QPELR 335

Cases Citing

Case NameFull CitationFrequency
GB Technology & Consulting Pty Ltd v Sunshine Coast Regional Council [2023] QPEC 162 citations
Hunter Family Capital Pty Ltd ACN 604 208 175 v Brisbane City Council [2022] QPEC 142 citations
1

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