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Graya Developments Pty Ltd v Brisbane City Council[2021] QPEC 49

Graya Developments Pty Ltd v Brisbane City Council[2021] QPEC 49

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Graya Developments Pty Ltd v Brisbane City Council [2021] QPEC 49

PARTIES:

GRAYA DEVELOPMENTS PTY LTD (ACN 606 248 104)

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO:

767 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

24 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3 September 2021

JUDGE:

RS Jones DCJ

ORDER:

  1. The appeal is allowed.
  2. I will hear from the parties, if necessary, as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL – DEMOLITION – where appellant sought development permit for building work concerning demolition of pre-1947 dwelling house – where subject site located in low medium residential zone – where respondent found proposed demolition does not achieve purpose of Traditional building character overlay code – whether retention of subject dwelling maintains traditional character and contributes to distinctive character of streetscape, locality and wider area – whether subject dwelling considered to be substantially altered by unsympathetic extensions during conversion from dwelling house to a multiple dwelling – whether appearance of building remains generally consistent to 1947 aerial photograph of timber and tin traditional character dwelling – where appeal allowed

CASES:

Affram Pty Ltd v Brisbane City Council [2010] QPEC 47; [2010] QPELR 674

Ken Drew Town Planning Pty Ltd v Brisbane City Council [2016] QPEC 62 (2017) QPELR 49

Lonie v Brisbane City Council & Ors [1997] QPEC 64; [1998] QPELR 209

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

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

Unterweger v Brisbane City Council [2011] QPEC 134; [2012] 2 QPELR 335

COUNSEL:

Mr K Wylie for the appellant

Mr B Rix for the respondent

SOLICITORS:

HWL Ebsworth Lawyers for the appellant

Brisbane City Legal Practice for the respondent

 Introduction

  1. [1]
    This proceeding was concerned with an appeal against the decision of the Brisbane City Council (the respondent) to refuse an application for a development permit for building works involving the demolition of a pre1947 dwelling house.  For the reasons set out below, the orders of the court are:
  1. The appeal is allowed.
  2. I will hear from the parties, if necessary, as to any consequential orders.

The site and its surrounding locality

  1. [2]
    The subject house is located at 228 and 230 Moray Street, New Farm on land more properly described as Lots 187 and 188 on RP8765.  On or about 2 February 2021, the appellant lodged its development application under the Brisbane City Plan 2014 (CP2014).  It is agreed between the respective heritage architects that the version of CP2014 in force at the time of the lodgement of the development application was version 20.
  2. [3]
    Under CP2014, the subject land was situated within the Low-Medium Density Residential zone, the Traditional building character overlay and within the New Farm and Teneriffe Hill neighbourhood plan area.  The code assessable application required assessment against the Traditional building character (demolition) overlay code of the respondent’s planning scheme.

Issues in dispute

  1. [4]
    In reaching the outcome of this proceeding, the parties posed four issues for determination.  They are:[1]

“1. Whether the proposed development should be approved, as a consequence of compliance with Traditional building character (demolition) overlay code Overall Outcomes 2(a), 2(d) and 2(h) and Performance Outcomes PO5(c), because the subject building does not contribute to the traditional building character of that part of the street within the Traditional building character overlay.

  1. Whether the proposed development should be approved, as a consequence of compliance with Traditional building character (demolition) overlay code Overall Outcomes 2(a) and 2(h) and Acceptable Outcome AO5(a), because the subject building:

a. has been substantially altered; and further, or in the alternative

b. because of alterations, does not have the appearance of being constructed in 1946 or earlier.

  1. Whether the proposed development should be approved, as a consequence of compliance with Traditional building character (demolition) overlay code Overall Outcomes 2(a), 2(d) and 2(h) and Acceptable Outcome AO5(c), because demolition of the subject building will not result in the loss of traditional building character.
  2. Whether the proposed development should be approved, as a consequence of compliance with Traditional building character (demolition) overlay code Acceptable Outcome AO5(d), because the subject building is in a section of the street within the Traditional building character overlay that has no traditional character.”
  1. [5]
    For reasons that will become apparent, it is unnecessary to address all of those issues.  Without wishing to express a final view on the matter, I propose to proceed on the basis that the subject house is in a section of Moray Street within the Traditional building character overlay that has traditional character.

Relevant provisions of the planning scheme

  1. [6]
    Relevant provisions of the demolition code within CP2014 provides that:

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

  1. (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.

….

  1. (d)
    Development protects a residential building or 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.

….

  1. (h)
    development ensures that, in conjunction with the Traditional building character (design) overlay code residential buildings constructed in 1946 or earlier in the Traditional building character overlay are retained and redevelopment compliments the traditional building character of buildings constructed in 1946 or earlier.
  1. [7]
    During his opening Mr Wylie, counsel for the appellant, said:[2]

“But I will ultimately be submitting, as was the last case that my learned friend and I appeared before your Honour, they really rise and fall with the performance outcomes or acceptable outcomes.  With respect to the performance outcomes ….  It is PO5C, AO5A, C and D.  If I can indicate your Honour, that – and I will address this in closing addresses.  My case will become even more acute – is that my principal case is based on AO5A and if you want to call it – not diminishing the significance of it, but my secondary case or the second point that I will be running is AO5D.

  1. [8]
    Those provisions of CP 2014 relevantly provide:

Performance Outcomes

Acceptable Outcomes

PO5

Development involves a building which:

  1. (a)
  2. (b)
  3. (c)
    Does not contribute to the traditional building character of that part of the street within the Traditional building character overlay

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
  2. (b)
  3. (c)
    If demolished will not result in the loss of Traditional building character; or
  4. (d)
    Is in a section of the street within the Traditional building character overlay that has no traditional character.
  1. [9]
    Before proceeding further, I would make the following observations.  First, as indicated above, I propose to proceed on the basis that the relevant section of Moray Street does have a traditional character.  Second, it is not in dispute that the house was constructed before 1946.  Third, the relevant “section of the street” was agreed upon between the experts, being Mr Elliott on behalf of the appellant and Mr Kennedy on behalf of the respondent.

Discussion and Consideration

  1. [10]
    It seems more likely than not that the original house was constructed circa 1912 – 1913.  In the Joint Expert Report (JER), Mr Elliott described the house in its original form as being a “Bungalow with U-shaped verandah-built form … and corresponding traditional street presentation …”.[3]  Mr Elliott referenced that opinion with two figures, being Figures 16 and 17.  Those figures reveal a number of features that are typically associated with buildings constructed circa 1900 to 1920s.  They are as follows:
  • Short ridge bungalow roof.
  • U-shaped verandah.
  • Five-bay front verandah.
  • Steps to the front verandah’s central bay.
  • Symmetrical about the front steps.
  • Balance between subfloor, walls and roof.
  • Verandah post with brackets and capital.
  • Two-rail verandah balustrade.

  • Square plan plus steps and stove recess.
  • Front and back steps.
  • Front steps centred opposite front door.
  • Central passage separating front rooms.
  • Most rooms opening to verandah and interior.
  1. [11]
    Mr Kennedy agreed with that assessment.[4]  The floor plan of the house as originally constructed can be discerned from the plan shown in Mr Kennedy’s statement of evidence.  It should be noted however, that that depiction shows the eastern verandah being enclosed.  It seems likely that the closure of the eastern part of the verandah occurred circa 1925.[5]  Even with that section of the verandah being enclosed, the house would still have undoubtedly presented to the street as having traditional building character.
  2. [12]
    According to Mr Elliott, from the late 1940s to the 1950s, there have been an ongoing series of unsympathetic alterations made to the house during its conversion into flats.  These unsympathetic alterations were identified by Mr Elliott as follows:[6]
    • enclosure of original open verandah across the front and down both side returns with stucco-clad fibro sheeting and a varied array of windows of different types, construction eras etc;
    • replacement of original timber stairs at the front entrance with steel framed and balustraded entry staircase;
    • construction of a projecting array of clerestory windows set in the original, pyramidal roof form of the building;
    • construction of a projecting northern edition at the rear to incorporate a further three (3) flat tenancies within this circa mid-1960’s edition;
    • the establishment of multiple points of pedestrian entry into the building to service the four (4) individual flats contained therein;
    • partial enclosure of the undercroft car parking spaces with panels of masonry breeze block in various locations; and
    • re-lining of various internal spaces within the house with posts – 1946 cladding, re-setting ceilings at a lower level and relocating various internal doorways within the core of the building.
  3. [13]
    I do not consider the internal treatment of the house to be of any particular relevance.  I have also reached the same conclusion in respect of the windows set into the original roofline.  It is true that those windows are observable from various viewpoints, but they do not impact in any material way on the presentation of that roofline to the street.  While the addition of the three flats to the rear of the house can also be observed from various points along Moray Street, I do not consider that their introduction has any material impact on the way the house presents to the street.  The same can be said in my view, in respect of the multiple points of pedestrian and occupant entry.
  4. [14]
    At the end of the day however, there can be no room for doubt that there has been a significant change in the way the house now presents to the street.  A useful comparison is the photograph of the house contained in Figure 38 of the JER.[7]  Other photographs which reflect the changes made by Mr Elliott are also set out within the JER.[8]
  5. [15]
    In the JER, Mr Kennedy stated that he “believes the subject house has not been substantially altered or does not have the appearance of being constructed in 1946 or earlier.”[9] He then goes on to express a number of opinions including:

“When considering the appearance of the subject house at 228 Moray Street, the main elements that have been altered are the front and side verandahs which have been enclosed with stucco walls and hopper or casement windows.  The original scale of the building in its setting have not changed, nor has it’s overall Traditional building form of a high set ‘timber & tin’ traditional character house with a pyramidal corrugated iron roof.”[10]

“… I believe the subject house in its present state still represents traditional building character for the reasons stated in 21.2.3 above.  It has the appearance of a ‘timber & tin’ traditional character house with verandahs which have been enclosed.  I do not think it has the appearance of a building either constructed after 1946 or substantially altered, and therefore I believe its demolition does not satisfy PO/AO5(a).”[11]

“The subject house displays traditional building character for the reasons he expressed in 21.2, and its prominence in the street means there will be a meaningful and significant loss of traditional building character in the eastern end of Moray Street if the subject house is demolished …”[12]

“Mr Kennedy believes the subject house displays traditional building character for the reasons he expressed in 21.2 above, and makes a positive contribution to the traditional building character in the eastern end of Moray Street …”[13]

  1. [16]
    It was a continual theme in Mr Kennedy’s assessment that, notwithstanding all of the alterations, in his opinion, the house retained its “timber & tin” traditional character.  While there is no doubt that the traditional tin roof is still recognisable, the timber element is a different situation altogether.  In that regard, the following exchange took place between Mr Kennedy and Mr Wylie:[14]

Q: But you can’t see the timber in this one, can you?

A: No. But it’s not timber.  Timber & tin is a type of house.  So I don’t – I’m not talking about materials when I talk about that. You can recognise this as being a type of house: a timber & tin house.

Q: And with respect to those concrete breeze blocks that go on the front and down the side, that certainly, you would say, not favourable but you would agree that’s certainly a detractor – that’s typical (1960s), isn’t it?

A: Look, I mean this house has got an incredible amount of modifications over time.  And I’ve been looking at it, you know since – well, all my life, and people often did those sorts of things in the 50s, put breeze blocks in and built – in – walls, people built in underneath.  And they’re very – they don’t detract from it because they’re just – everybody sort of knows, I think that they’re just Besser blocks that have been put there for – in the 50s, and they’re reversible and they’re not a feature of the house, they’re not a feature of the original house, they’re not taking away from the original house dramatically. (emphasis added)

  1. [17]
    With all due respect to the opinions of Mr Kennedy, a highly qualified and experienced conservation architect who appears in this jurisdiction regularly, I am unable to accept his assessment of the real situation.  To him, as an expert in the field, the house may still be recognisable as being of timber & tin traditional character. However, this case is not to be decided on the basis of what an expert in the field might make of things.
  1. [18]
    The assessment of whether the changes to the physical appearance of a house involve substantial alterations, or result in it no longer having the appearance of being constructed in 1946 or earlier, is an objective test.  That is, what would the reasonable person think.  As Skoien SDCJ put it in the off-cited case of Lonie v Brisbane City Council & Ors:[15]

“I thought the evidence of Mr Scott, Mr Kennedy and Mr Ross, gave valuable assistance on the question I have to decide …  In a nutshell, it is this; would the average person walking the street and looking about, with a perception which falls somewhere between that of a PhD in architectural history on the one hand and that of a philistine on the other, think…”

  1. [19]
    In that case, his Honour was concerned with the character of a particular street in Brisbane.  His Honour’s observations though, in my respectful opinion, are equally applicable to the assessment of the character of any house in question.  In Ken Drew Town Planning Pty Ltd v Brisbane City Council,[16] Bowskill QC DCJ (as her Honour then was) said:

“In that context, although it might be said that the evidence of architects such as Mr Kennedy and Mr Elliot is not strictly speaking admissible as expert opinion (the question being what the average person walking along the street would think; not what an architect with specialised knowledge, training and experience might think), I proceed on the basis explained by Wilson SC DCJ14 (as his Honour then was) that:

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

  1. [20]
    In its original form, the house would have presented to the street as a house with two bay windows and verandahs on three sides, having doorways permitting access from the verandahs into and out of the house.  Even after the closure of the eastern verandah in the 1920s, it would still have presented to the street as a timber dwelling with a tin roof, having two bay windows surrounded on two sides by verandahs allowing access to and from the verandahs.  
  2. [21]
    As the house now presents to the street, it has a flat stucco facade where the bay windows have obviously disappeared.  The bay windows have been replaced with a number of windows of dubious origin.  Even allowing for the remaining presence of the traditional tin roof, the only reasonable conclusion open, in my view, is that the house has been substantially altered.  
  3. [22]
    In his statement of evidence, Mr Kennedy sought to draw comfort from two decisions of this court where, notwithstanding alterations of some significance, it was found that the houses still retained their traditional building character.  The first case relied on by Mr Kennedy in that regard was Unterweger v Brisbane City Council.[17]  The second was Se Ayr Projects Pty Ltd v Brisbane City Council.[18]  Those cases did not assist Mr Kennedy’s thesis.  Notwithstanding the alterations to the houses in both those cases, unsurprisingly they still retained a number of features consistent with traditional building character.  As much as can be discerned from the sketch and photograph in his statement.[19]  Those photographs only have to be compared to the photograph of the subject dwelling at page 5 of Mr Kennedy’s report to highlight just how drastically different it now presents to the street when compared to its original form, and even that after the closure of the eastern verandah in the 1920s. 
  1. [23]
    Here, it is not just the closure of the verandah that is of significance.  The asbestos sheeting together with its use of discordant windows presents a flat, featureless surface to the street.  That can be contrasted with the three-dimensional effect created by the original house.  In this regard, as already addressed above, the featureless presentation to the street presented by the subject house can be contrasted with the two examples relied on by Mr Kennedy at 86 Walnut Street, Wynnum and 21 Napier Street, Ascot.  Notwithstanding the relevant alterations, those houses both presented with a number of traditional features.  In this regard, it is useful to refer to some of the observations made by his Honour Rackemann DCJ in Se Ayr Projects where his Honour said:[20]

“It is, of course, not uncommon for the Queensland Vernacular style of housing to have been the subject of some alteration over time.  In this case, the alterations have included the enclosure of the front and side verandahs, with removal from view of original balustrades and decorative detailing and their replacement with modern window assemblies, the addition of modern window hoods, which may or may not have replaced old or original window hoods; the addition of a timber door at the lower level, so as to enable part of the under croft of the house to be used as a vehicle garage; the addition of a vent in one of the gables of the roof form; and the replacement of the balustrading on the stairs, albeit with the balustrade that is sympathetic to the character of a Queensland vernacular building.

Whilst, as I have acknowledged, the fibro cladding has reduced the strength of the Queensland vernacular character of the building, it has not done so substantially or to a point where the building no longer represents that form of traditional building character, in my view…

… nevertheless, I am satisfied that, if demolished, the result would be a meaningful and significant loss of traditional building character, and that the house currently does contribute positively to the visual character of the street.”

  1. [24]
    Mr Rix, who appeared for the respondent made a valiant effort to convince the court that the house has not been substantially altered.  In his written submissions, after identifying the alterations referred to by Mr Elliott,[21] he then went on to point out a number of features which supported his client’s case:[22]

“In terms of street presentation, Mr Elliott appeared to confine his concerns with respect to non-traditional character to matters ‘below the eaves’, by extension appearing to identify, or at least not dispute, that the roof of the building (at least) relevantly retained its traditional character.  That roof is, of course, the one Mr Kennedy described as being representative of the ‘iconic Queenslander’ and was a ‘very important element’ of the building.

It should then be borne in mind that some of the matters where even Mr Elliott does not contend the Traditional building character attributes, many identified in the PSP, are no longer present for the subject building.  Those matters are:

  1. (a)
    The building had not been re-sited, nor had it been raised;
  1. (b)
    The building did not present any wider to the street frontage, not having had (as an example) a carport added to the front or side like certain other dwellings identified as examples where the court still had been satisfied that ‘substantial alteration’ had not occurred.  Indeed, the front of the house maintained its presentation to the street as it traditionally would have.
  1. (c)
    The building had not had a second storey added to it, either above or below the original floor of the building.
  1. (d)
    This was not a case where the rear of the block had been subdivided, unlike many others in Brisbane.
  1. (e)
    While some additional entry ways have been added and those in this case may be somewhat unusual, multiple entry ways were characteristic of the traditional Queenslander;
  1. (f)
    View from the street, the setting of the house had not changed (footnotes omitted).
  1. [25]
    Many, if not all, of those matters identified by Mr Rix can be accepted including that the existing tin roof is a very important element of the traditional timber & tin character.  That said, on no reasonable basis could it be said that this house now presents to the street as an “iconic Queenslander”.
  1. [26]
    In Affram Pty Ltd v Brisbane City Council,[23] when considering the extent of the modifications to the house in question, Andrews SC DCJ said:

“The primary significance of the features identified by the BCC in the Code is the appearance they create rather than their mere existence. To hide the structural features behind external asbestos walls is to remove the relevant shadows and three-dimensional effects, to add a historically discordant material to the relatively limited range of materials available at the time of construction and to clash with any unifying theme of painted timber walls.” (emphasis added)

  1. [27]
    With respect, in making those observations, his Honour, could very well have been speaking about the subject house.  Not only has this house been substantially altered, but the alterations that have been made are so unsympathetic as to rob it of the ability to make any contribution to the traditional building character of the relevant part of Moray Street. 
  2. [28]
    But for the remaining tin roof, the “Queensland vernacular character” of the house has all but been destroyed.  No doubt, the house could be restored to its former glory albeit at considerable cost, but that is not to the point.  As Bowskill QC DCJ (as her Honour then was) observed in Marriott v Brisbane City Council,[24]…that alterations (unsympathetic or otherwise) might be reversible is not relevant to the inquiry”.  
  3. [29]
    For the reasons given, the appeal ought be allowed. 

Orders

  1. The appeal is allowed.
  2. I will hear further from the parties, if necessary, as to any consequential orders. 

Footnotes

[1]  Exhibit 4.

[2]  T1-5 at lines 22 – 29.

[3]  Exhibit 2 at p 19, para 21.1.

[4]  Exhibit 2 at p 32, para 21.2.1.

[5]  Exhibit 6 at p 6.

[6]  Exhibit 2 at pp 20 – 21.

[7]  Exhibit 2 at p 32, Figure 38.

[8]  Ibid at pp 22 – 26.

[9]  Ibid at p 32, para 21.2.

[10]  Ibid at p 33, para 21.2.3.

[11]  Exhibit 2 at p 33, para 21.2.4.

[12]  Ibid at para 22.2.

[13]  Ibid at p 34, para 23.2.

[14]  T1-46 at lines 1 – 14.

[15]  [1998] QPELR 209 at [212].

[16]  [2017] QPELR 49 at [21].

[17]  [2012] 2 QPELR 335.

[18]  [2016] QPELR 223.

[19]  Exhibit 6 at p 3.

[20]  [2016] QPELR 223 at [21], [30], and [37].

[21]  Written Submissions of Respondent at para 54.

[22]  Ibid at paras 57 – 58.

[23]  [2010] QPELR 674 at [35].

[24]  [2015] QPELR 910 at [59] and see also SeAyr Projects Pty Ltd v Brisbane City Council at [23].

Close

Editorial Notes

  • Published Case Name:

    Graya Developments Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Graya Developments Pty Ltd v Brisbane City Council

  • MNC:

    [2021] QPEC 49

  • Court:

    QPEC

  • Judge(s):

    RS Jones DCJ

  • Date:

    24 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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