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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Taylor & Anor v Brisbane City Council  QPEC 5
DAVID ANTHONY TAYLOR & DIANE BARBARA TAYLOR
BRISBANE CITY COUNCIL
3655 of 2018
Planning and Environment Court
Appeal against refusal
Planning and Environment Court of Queensland, Brisbane
25 February 2020
12 and 13 February 2020
Williamson QC DCJ
Orders in accordance with paragraph  of these reasons for judgment
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of proposed demolition of a timber and tin dwelling in the traditional building character overlay in City Plan 2014 – whether the demolition will result in the loss of traditional building character – whether the demolition complies with the Traditional building character (demolition) overlay code in City Plan 2014.
Planning Act 2016, ss 45 and 60
Planning & Environment Court Act 2016, s 45
Beauchamp v Brisbane City Council  QPELR 37
Delta Contractors (Aust) Pty Ltd v Brisbane City Council  QPELR 1
Klinkert v Brisbane City Council  QPELR 941
Marriott v Brisbane City Council  QPELR 910
Mr D Gore QC with Ms D Whitehouse for the appellants
Mr J Ware for the respondent
Taylors Solicitors for the appellant
City Legal for the respondent
- The appellants wish to demolish a pre-1946 ‘timber and tin’ dwelling on land situated in Highlands Street, Albion. In July 2018, they made a code assessable development application to Council for an approval to authorise the demolition. Their application was assessed against, inter alia, the Traditional building character (demolition) overlay code in City Plan 2014 (the demolition code). Based on the assessment carried out, Council’s delegate decided to refuse the application in October 2018. This is an appeal against that refusal.
- At the hearing of the appeal, Council contended the appellants’ demolition application should be refused. It advanced a number of grounds in support of its position. The grounds were identified in an ‘agreed list of issues for determination’. The agreed list raises essentially two questions for determination: (1) whether the proposed demolition complies with the demolition code; and (2) whether the planning discretion conferred by s 60(2)(b) of the Planning Act 2016 (PA) should be exercised in favour of approval in the event non-compliance is established with the demolition code. It is for the appellants to establish the appeal should be upheld.
- By way of background, the land the subject of the application is situated at the south-eastern end of Highlands Street. The alignment of the street is unusual. It is the shape of an inverted letter ‘T’. The leg of the T, which intersects with Sandgate Road to the north, is orientated north-south, and is about 90 metres in length. The head of the inverted T is to the south of the leg, and is orientated east-west. It is also about 90 metres in length. The sealed carriageway terminates at each end of the head of the inverted T, meaning the street is a ‘double dead end’ (as described in the evidence).
- The land is depicted in Annexure A to these reasons for judgment. The annexure is an extract from a zoning map in City Plan 2014 with a cadastral base. The boundaries of the land are highlighted in the annexure for identification purposes. It can be seen from Annexure A that the land is located at the south-eastern end of Highlands Street and is a large irregularly shaped lot. It has an area of about 1,037m2 and a narrow frontage to Highlands Street, in the order of 3.5 metres. The frontage is provided by a narrow finger of land. It is also evident from Annexure A that the land is not orientated towards the street. It is orientated in a north-south direction towards adjoining lots.
- The land is improved with a timber and tin dwelling. It is setback some 16 metres from the street. This is a substantial setback distance. It has the effect of physically removing, and visually disconnecting, the dwelling from the street and the streetscape. The dwelling is only visible when viewed within a few metres of the termination of the sealed carriageway at its south-eastern end. The two heritage architects called to give evidence in the appeal agreed that it was the rear of the dwelling that is visible from this part of the street. Mr Elliott, the appellants’ heritage architect, described this as a ‘reversed orientation’. The dwelling presents its rear to Highlands Street because it is orientated to take advantage of an expansive view to the Brisbane CBD, which is located to the south.
- The photographic evidence before the Court, assisted with the benefit of a site inspection, confirms that the view of the dwelling from the south-eastern end of Highlands Street is not a particularly attractive one. The rear of the dwelling does not appear to exhibit any particular aesthetic quality, or design feature of note, from a traditional building character perspective.
- The heritage architects agreed the dwelling is a timber and tin traditional character building constructed prior to 1946. Mr Kennedy, Council’s heritage architect, opined the dwelling exhibited a number of features that were clearly recognisable as traditional building character. He identified four such features, namely it is a timber dwelling that: (1) was constructed with a timber core with verandahs; (2) is elevated on timber stumps; (3) is a high set structure with an area underneath enclosed with timber battens; and (4) has a pyramidal roof form, sheeted with corrugated iron. Mr Kennedy’s evidence is made good having regard to a number of photographs in evidence before the Court. I accept his evidence in this regard.
- Photographs of the dwelling also reveal it has been physically altered during its life. The alterations were identified by the appellants’ heritage architect, Mr Elliott. In his opinion, the original building form of the house, as a core with attached or integrated verandahs, has been modified through: (1) the substantial enclosure of the original verandahs on the southern and eastern sides of the building’s core; and (2) enclosed additions to the western side of the house, believed to be added during the 1930s. Mr Kennedy readily acknowledged the dwelling had been altered, but did not consider the alterations were such as to deprive it of its traditional building character. As I understand Mr Elliott’s evidence, he did not adopt a contrary position. Rather, he agreed with Mr Kennedy that the dwelling is traditional building character, which is not materially diminished by the alterations identified above.
- Turning to the character of the street, the existing character of Highlands Street, taken in its entirety, is mixed. The primary focus in this appeal however is that part of the street aligned east-west. It is only in this part of the street that the dwelling is visible and, in turn, may be said to make a contribution to the character of the street. I will now turn to deal with the character of this particular part of Highlands Street.
- The southern side of the street includes four dwellings that exhibit traditional building character. They are orientated to the street and contribute to its traditional character. The size and shape of the lots where the four dwellings are located are relatively uniform. There is a degree of uniformity in the setback of each dwelling to the street.
- The four dwellings that exhibit traditional building character on the southern side of the street are not contiguous. They are bookended to the west by a new dwelling located on a rear lot. They are bookended to the east by a three storey multiple dwelling, which appears to occupy an area equivalent to two lots. The four dwellings are also split in the middle by a new dwelling house, albeit designed and constructed in a manner that is sympathetic to traditional building character.
- The pattern of subdivision on the northern side of the street is unusual. It has resulted in a lack of uniformity in terms of lot size, shape and orientation. There are five dwellings on the northern side of the street that exhibit elements of traditional building character. Two of those dwellings are located on corner lots, and present the side of a dwelling to the street. The other three dwellings are sited as a cluster of dwellings. The cluster is unusual because each dwelling is orientated to face west, thereby presenting the side of the dwelling to the street. Further, they are sited in a staggered or stepped fashion, and appear to overlap when viewed from the street. This has the consequence that two of the dwellings in the cluster are substantially obscured from view from the street.
- A dated two storey multiple dwelling is visible at the eastern end of the street. It is unsympathetic to traditional building character. It presents as a bulky two storey masonry structure that has a significant visual presence in the street. The dwelling the subject of the demolition application sits between this multiple dwelling and the three storey multiple dwelling referred to in paragraph .
- The demolition code is an assessment benchmark against which the appellants’ application must be assessed. It is the only assessment benchmark that is the subject of an allegation of non-compliance. Council alleges the proposed development does not comply with performance outcome PO5(c) and overall outcomes (2)(a) and (2)(d) of this code.
- Performance outcome PO5(c) states:
“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.”
- The appellants contend the proposed demolition complies with PO5(c) on one of two bases. First, it was contended that compliance was demonstrated with two acceptable outcomes applicable to the provision, namely AO5(c) and/or AO5(d), which are expressed as alternatives. Second, it was contended that compliance was demonstrated with the terms of PO5(c).
- It was common ground that compliance with performance outcome PO5 of the demolition code can be demonstrated through satisfaction of any one of the four related acceptable outcomes, including AO5(c), which states:
“Development involves a building which:
(c) if demolished will not result in the loss of traditional building character; or…”
- Mr Gore QC and Ms Whitehouse of counsel submitted that the demolition of the dwelling would not result in the loss of traditional building character for the purposes of AO5(c). This submission was founded on two propositions: (1) the loss to be examined is the loss of traditional building character from that part of the street within the Traditional building character overlay area; and (2) non-compliance arises with the provision where the loss is meaningful, or significant. I accept both propositions represent a sound basis upon which to proceed to examine the issue of compliance with AO5(c).
- Taking up the first of the two propositions, it is necessary to ask this question: What part of the street is to be examined for the purposes of AO5(c)?
- Mr Elliott and Mr Kennedy agreed that the ‘part of the street’ to be examined is the portion aligned east-west, and included in the Traditional building character overlay in City Plan 2014. I accept this evidence. It sensibly proceeds on the footing that the study area to be examined is where the dwelling is visible and may be said to contribute to the character of that part of the street included in the relevant overlay.
- With this study area in mind, the second proposition in paragraph  calls for the following question to be asked and answered: Would the demolition of the dwelling result in the meaningful, or significant, loss of traditional building character in that part of Highlands Street aligned east-west?
- I am satisfied this question is answered in the negative.
- It can readily be accepted that the form of the dwelling, and the materials used to construct it, represent traditional building character as envisaged by the demolition code. That the dwelling is of this character does not however mark the end of the enquiry. The acceptable outcome calls for an assessment of the contribution the dwelling makes to the street in traditional building character terms. Here, as the evidence establishes, the dwelling makes a negligible contribution to the traditional building character of the street. This was the effect of Mr Elliott’s evidence, which I accept. There are two particular aspects of his evidence that were persuasive in this respect.
- First, as discussed in paragraph , Mr Elliott emphasised there is limited visual accessibility to the dwelling from the street. This is made good having regard to photographs in evidence, particularly exhibit 11. That the visibility of the dwelling from the street is limited is the product of two things: (1) the existing pattern of subdivision; and (2) the generous setback, some 16 metres, measured from the dwelling to the street. These two features, in combination, limit the visual access to the dwelling from the street. Its lack of visual access negatively impacts on the contribution it makes to traditional building character, and the traditional character, of the street. I accept the submission made by Mr Gore QC and Ms Whitehouse that the contribution the dwelling makes to the street in this sense is nominal, or negligible.
- Second, with the assistance of exhibit 8 and 11, Mr Elliott demonstrated there is limited visual connection between the dwelling, and other dwellings in the street that exhibit traditional building character. In a visual sense, the dwelling is isolated from other timber and tin dwellings by reason of its setback to the street. This setback causes it to be visually removed from, and indeed, isolated from the street. This visual isolation is exacerbated by the ‘reverse orientation’ of the dwelling. In my view, the dwelling is essentially lost between two adjoining non-traditional multiple dwellings. These modern structures are significant elements that influence the character of the south-eastern end of Highlands Street.
- Mr Kennedy did not agree with Mr Elliott. He approached the matter on the footing the dwelling was constructed prior to 1946 and exhibited traditional building character, which is not diminished by the alterations discussed in paragraph . The point of difference between the architects turned on the relevance of the dwelling’s setback to the street, and its reverse orientation. At paragraph 17.2(d) of the heritage joint report, the following opinion is attributed to Mr Kennedy:
“MK acknowledges that the subject house’s setback and so called ‘reverse orientation’ are matters that may affect its traditional character contribution within Highlands Street, but believes they are irrelevant in an evaluation of the subject house’s individual traditional building character which remains largely intact.”
- Mr Kennedy’s belief that issues of setback and orientation are ‘irrelevant’ to the assessment of ‘traditional building character’ was said to be informed by her Honour Judge Kefford’s recent decision in Delta Contractors (Aust) Pty Ltd v Brisbane City Council  QPELR 1. In examining two undefined terms in City Plan 2014, namely ‘traditional character’ and ‘traditional building character’, her Honour at paragraph  said:
“…The two terms have different meanings. Traditional character relates to streetscape or a locality. Traditional building character relates to a building.”
- I do not regard her Honour’s reasons at paragraph  of Delta Contractors as holding that the setback of a dwelling to the street, and/or its orientation, are ‘irrelevant’ to an assessment of traditional building character. Her honour was simply drawing a distinction between two undefined phrases used in City Plan 2014, particularly the demolition code.
- As to the considerations that may inform an assessment of traditional character, or traditional building character, the demolition code refers the reader (in a ‘Note’) to a planning scheme policy. This policy is intended to provide ‘guidance’. The policy is the ‘Traditional building character planning scheme policy’.
- Section 2.1(1) of the policy states:
“(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:
(a) traditional building form and roof styles;
(b) traditional elements, detailing and materials;
(c) traditional scale;
(d) traditional setting.
- The above provision, read with the explanation provided for each of the four subsections, does not suggest that setbacks and building orientation are irrelevant to an examination of traditional building character. Rather, the provision, by way of guidance, suggests a number of considerations may inform an assessment of traditional building character and traditional character. The factors overlap and are not mutually exclusive. The factors that may be considered in either case include those relevant to the issue of setting. I see no reason in principle why the issue of setting does not include matters touching upon the setback, and/or orientation, of a dwelling to the street.
- Section 2.1(1) of the planning scheme policy was considered in Klinkert v Brisbane City Council  QPELR 941. At paragraphs  to  of that decision I said:
“ 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.
 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.
 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.”
- The planning scheme policy, read in conjunction with the above passages in Klinkert, does not support the proposition that setbacks and building orientation are irrelevant to an assessment of traditional building character.
- Council did not suggest that Klinkert was wrongly decided. Nor did Mr Ware of counsel appear to maintain the hard line adopted by Mr Kennedy with respect to the relevance of setbacks and orientation to the issue of traditional building character. In truth, I was left in a state of some confusion as to Council’s final position in relation to this point. In any event, to the extent Council’s submissions seek to advance a position consistent with Mr Kennedy’s evidence, I reject such a submission.
- The submission finds no support in the demolition code or associated planning scheme policy. Nor does it find support in decisions of this Court. In my view, an examination of traditional building character, and traditional character for the purposes of the demolition code and associated policy, will be informed by a range of matters, which may include, inter alia, the setback and orientation of a dwelling to the street. Mr Kennedy’s opinions are founded upon a contrary assumption.
- As a consequence, I prefer Mr Elliott’s evidence to that of Mr Kennedy. The former clearly took into account the setback and orientation of the dwelling to the street and its impact on traditional building character. To ignore these matters in the circumstances of this case, in my view, leads to an artificial and unreliable assessment. It is an assessment that gives decisive weight to the age and nature of the building and materials used to construct it, but ignores the obvious: the dwelling makes a negligible contribution to the traditional building character of Highlands Street.
- I am, for the above reasons, satisfied compliance has been demonstrated with acceptable outcome AO5(c) of the demolition code.
- Given the structure of City Plan 2014, it follows from paragraph  that the demolition is treated as complying with performance outcome PO5 of the code. This includes performance outcome PO5(c), which is set out above in paragraph . This provision is satisfied where a building does not contribute to the traditional building character of that part of the street included in the Traditional building character overlay.
- As I have already said, Council also alleges non-compliance with overall outcomes (2)(a) and (2)(d) of the demolition code. These non-compliances are said to warrant refusal of the demolition application.
- Overall outcome (2)(a) states:
“(a) Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character.”
- Council’s case in relation to overall outcome (2)(a) is simply stated. It submits an approval authorising the demolition would, contrary to the overall outcome, fail to protect a dwelling that contributes to the traditional building character of the area, which, in this case, is the street. For the reasons set out in paragraphs  to  above, I am satisfied the dwelling does not contribute, either individually or collectively, to traditional building character or the traditional character of the street. The dwelling is physically, and visually, disconnected from the traditional building character and traditional character of the street. In such circumstances, to approve the demolition of the dwelling would not, in my view, give rise to a non-compliance with overall outcome (2)(a).
- Overall outcome (2)(d) states:
“(d) Development protects a residential building or a part of a building constructed in 1946 or earlier where it forms part of a character streetscape comprising residential dwellings constructed in 1946 or earlier nearby in the street within the Traditional building character overlay.”
- Council submits the demolition of the dwelling would be contrary to overall outcome (2)(d) because: (1) the character streetscape of Highlands Street is remarkably intact; (2) the dwelling forms part of the pre-1946 streetscape; (3) the dwelling is clearly visible from the street; and (4) the dwelling is physically and visually proximate to nearby dwellings that exhibit traditional building character.
- I do not accept this submission. For reasons given above, the submission wrongly assumes the dwelling is ‘clearly visible’ from the street. That overstates the true position. The submission also wrongly assumes the dwelling is physically and visually proximate to other dwellings in the street that exhibit traditional building character. This assumption is contrary to my assessment, which is discussed in paragraph .
- I am satisfied the appellants have demonstrated compliance with overall outcome (2)(d). Put simply, for the reasons in paragraph  and  to , compliance is demonstrated because the dwelling does not form part of a character streetscape envisaged by overall outcome (2)(d).
- The agreed list of issues states that Council also relies upon non-compliance with s 1(a)(i) of the demolition code as a reason for refusal. It is unnecessary to dwell upon this provision of the code. Council’s case in relation to non-compliance with this provision assumes it has enjoyed a measure of success with the alleged non-compliances with PO5 and overall outcomes (2)(a) and (2)(d) of the same code. For the reasons given above, I have arrived at a contrary position. The appellants have demonstrated compliance with these provisions of the code. I am therefore satisfied compliance has also been demonstrated with s 1(a)(i).
- Council’s case was advanced on the footing the application does not comply with the demolition code. I am satisfied an assessment of the application against that code, which is a relevant assessment benchmark, has demonstrated compliance. Given Council has not alleged non-compliance with any other relevant assessment benchmark, I am satisfied s 60(2)(a) of the PA is engaged. This provision mandates that the application must be approved where compliance is demonstrated with the assessment benchmarks for the application. An approval must follow in the circumstances.
- As s 60(2)(a) of the PA is engaged, it is unnecessary for me to examine the second issue for determination, namely whether the discretion conferred by s 60(2)(b) ought be exercised in favour of approval where non-compliance with the demolition code was established.
- Accordingly, I am satisfied the appellants have discharged the onus, and the delegate’s decision to refuse the demolition application should be set aside.
- The delegate’s decision to refuse the application will, in due course, be replaced with an approval, granted subject to conditions. The appeal will be adjourned for the parties to agree upon a suite of conditions.
- The orders of the Court will be:
- By 4.00pm on 11 March 2020 the respondent is to provide a draft suite of conditions to the appellants.
- The appeal be listed for review at 9.15am on 18 March 2020.
 s 45(1)(a), Planning & Environment Court Act 2016.
 Ex.3, p.10, Figure 9.
 Ex.8, p.1.
 Ex.3, p.11, paragraph 17.1.
 Ex.3, paragraphs 7 and 8.
 Ex.3, paragraph 17.2(b).
 Ex.5, pp.74 to 76.
 Ex.3, p.11, paragraph 17.1.
 Ex.3, p.12, paragraph 17.2(c).
 Ex.3, p.3, paragraph 7(f).
 s 45(3)(a), PA.
 In reliance upon Marriott v Brisbane City Council  QPELR 910, 918 .
 In reliance upon Beauchamp v Brisbane City Council  QPELR 37, .
 Ex.3, p.7, paragraph 14.
 Ex.3, p.12.
- Published Case Name:
Taylor & Anor v Brisbane City Council
- Shortened Case Name:
Taylor v Brisbane City Council
 QPEC 5
25 Feb 2020