Law v Brisbane City Council[2021] QPEC 65

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

1. [1]
   This appeal is against the respondent’s decision to refuse the appellant’s application for a development permit for the demolition of a pre-1947 dwelling house in the Traditional Building Character Overlay (the overlay). The dwelling house is situated at 67 Harold Street, Holland Park.

2. [2]
   The development application was lodged in November 2020 and was code assessable pursuant to the provisions of City Plan 2014 (City Plan). Accordingly:

1. (a)
   by reason of s 45 of the Planning Act 2016 (Qld) (PA) assessment was required to be carried out only:

1. (i)
   against the assessment benchmarks; and
2. (ii)
   having regard to any matters prescribed by regulation, and

2. (b)
   by reason of s 60(2) of the PA the assessment manager, after carrying out assessment of the application:

1. (i)
   was required to approve the application, to the extent it complied with all of the assessment benchmarks;
2. (ii)
   had a discretion to approve the application even if it did not comply with some of the assessment benchmarks;
3. (iii)
   had a discretion to impose conditions on an approval, and
4. (iv)
   had a discretion to refuse the application, but only if compliance could not be achieved by imposing conditions.

3. [3]
   The appeal to this Court proceeds by way of hearing anew.^[1]  The appellant bears the onus in the appeal.^[2]

4. [4]
   The assessment benchmarks of relevance to the issues in the appeal are in the Traditional Building Character (Demolition) Overlay Code (the Overlay Code). The dispute is as to whether the proposed demolition would fail to comply with provisions of the Overlay Code and, if so, whether the Court ought exercise the discretion to approve the development application.

5. [5]
   The Overlay Code features a statement of purpose as well as overall outcomes and a table of performance outcomes and acceptable outcomes. City Plan provides^[3] that code assessable development that complies with the purpose, overall outcomes and the performance outcomes or acceptable outcomes complies with the Code.  Accordingly, as both parties acknowledged, compliance with the Overlay Code requires compliance with both the purpose and overall outcomes and either the relevant performance outcomes or the corresponding acceptable outcomes.

6. [6]
   The agreed list of issues for determination referred to the following three overall outcomes (retaining the lettering from the provision of the Overlay Code):

4. “(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.

…

4. (d)
   Development protects a residential building or a part of a building constructed in 1946 or earlier where it forms a part of a character streetscape comprising residential dwellings constructed in 1946 or earlier nearby in the street within the Traditional building character overlay.

…

8. (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 complements the traditional building character of buildings constructed in 1946 or earlier.”

7. [7]
   Whilst those provisions are of relevance, the argument focussed upon Performance Outcome 5 and its corresponding acceptable outcomes which are as follows:

8. [8]
   Indeed, counsel for the respondent conceded that overall outcomes (d) and (h) would be satisfied if the appellant established compliance with PO5 and AO5. It is difficult to see why the same would not be the case for overall outcome (a).

9. [9]
   It was common ground that, despite some alteration, the subject house represents traditional building character. Further, as Mr Elliott (the expert called by the appellant) accepted,^[4] it is substantially intact.  The appellant did not rely on PO5(a) or the corresponding AO5(a).  There was also no issue about structural soundness.  Accordingly, PO5(b) and AO5(b) are irrelevant.  The appellant’s case raised PO5(c) and the corresponding AO5(c) and/or AO5(d), in addition to the residual discretion. 

10. [10]
    The subject house lies on the southern side of Harold Street, between its intersection with Logan Road to the west and Arabilia Street to the east. There is an incline towards Logan Road. That section of the street is predominantly developed with single detached dwellings, many of which date from pre-1947. The overlay covers both sides of this section of the street, but excludes some properties at either end. The subject house is the last house on the southern side of the street that is within the overlay at its eastern end. On the northern side of the street the overlay stops a little further to the west. On that side the eastern extremity of the overlay lies at the intersection with the side street of Heriot Street. The properties on the northern side of Harold Street to the east of Heriot Street, including that immediately opposite the subject house, are more modern buildings not within the overlay. In total there are 22 buildings within the overlay, 16 of which (including the subject house) are pre-1947 houses.^[5]

11. [11]
    PO5 requires attention to “that part of the street within the Traditional building character overlay”. AO5(d) refers to a section of the street “within the Traditional character overlay”. AO5(c) does not identify from where the traditional building character would be lost, but that acceptable outcome has an obvious link to PO5(c).

12. [12]
    In the joint report of the heritage experts Mr Elliot criticised an assessment which disregarded properties outside the overlay “in strict accordance with” the relevant provisions as inevitably leading to an “artificial and inaccurate assessment” and as producing “a blinkered and artificially manipulated conclusion”.^[6] As Mr Kennedy (the expert called by the respondent) pointed out however,^[7] the current provisions, in focusing attention on what is within the overlay, differ from those that applied under City Plan 2000. The terms of the current provisions should be respected.

13. [13]
    In identifying the relevant part of the street within the overlay, the experts were ultimately influenced by the fact that, at about the mid-point of the area covered by the overlay, there are two non-traditional character buildings, being two apartment buildings, directly opposite each other. Their focus was on the section of the street to the east of those apartment buildings. As Mr Kennedy said in the joint report,^[8] the remaining 16 pre-1947 houses within the overlay as a whole continue to impart strong traditional character throughout the section of the street within the overlay, but particularly on both sides of the street east from No. 49 (being the first pre-1947 house east of the apartment building on the southern side of the road). Under cross-examination he confirmed that, for assessment, he divided the part of the street, within the overlay, into two, at the point of the mid-block unit buildings.^[9] Mr Elliot, although having, in the joint report, described the subject site as falling within a section of Heriot Street where there is only one other pre-1947 house^[10] conceded, in cross-examination,^[11] that, on the assumption that the provisions are concerned with a section of the street within the overlay, then the relevant section, in this case, extends up to the mid-block unit buildings.

14. [14]
    In the section of the street within the overlay east of the mid-block unit buildings, there are nine pre-1947 buildings, four of which are on the northern side of the street and five of which are on the southern side. As Mr Elliott effectively accepted, they all have traditional building character^[12] and have not been subject to a higher degree of modern alteration.^[13]  There are also two houses that are post-1947.  Those lie side by side on the southern side of the street and separate the subject dwelling (originally called “Winston”) and its immediate western neighbour (originally called “Churchill”) from the balance of the houses within the overlay to the west on the southern side of the street.  The properties upon which those two post-1947 houses are situated however, have only 10 metre frontages, such that the distance of separation is only 20 metres.  Further, the houses have features that are sympathetic with traditional character.^[14]  Mr Elliott rightly conceded, in the course of cross-examination, that the group of houses in this section of the overlay collectively have traditional building character to which the subject house makes some contribution.^[15]  He would not accept however, that its demolition would result in a meaningful loss of traditional building character.

15. [15]
    It has already been observed that the focus of the relevant performance outcome is on that part of the street within the overlay. Mr Elliott’s views however appeared to be influenced by what lies beyond its boundary. He drew a distinction between that part of the overlay area where there are seven largely intact character houses (four on the northern side and three on the southern side), facing each other across the street, effectively reinforcing each other^[16] and the area to the east of the Heriot Street side street where the overlay stops on the northern side.  In that part of the street the subject house (on the southern side) only has its immediate neighbour (to the west) as a house of traditional character within the overlay and has nothing within the overlay, or of traditional building character, opposite or on its western side.  Whilst he said that he accepted the overlay mapping and did not contend that the streetscape was not strong, he opined that it was not strong where the subject site sits.^[17]  He saw the subject house as in “the most compromised location within that group in terms of impact should it be removed”.^[18]  In short, he was influenced by what he saw as the relative importance of the houses in the central part of the overlay, compared with the subject house on the edge of the overlay, proximate to development not of traditional building character.

16. [16]
    Counsel for the appellant submitted, in effect, that Mr Elliott’s view could be accepted and given effect to in any of three different ways, namely:

1. (a)
   finding that the subject house does not contribute to the character of the street (PO5(c)) or its demolition would not result in the loss of traditional building character (AO5(c)); or
2. (b)
   finding that the relevant section of the street is that to the east of the Heriot Street side street, which has no traditional character (AO5(d)), or
3. (c)
   exercising the discretion to approve even if there is a failure to comply with some of the assessment benchmarks.

17. [17]
    As counsel for the appellant acknowledged, his submission as to the confines of the relevant section of the street differs from what Mr Elliott accepted in his oral evidence. Further, whilst in the joint report^[19] Mr Elliot expressed the view that the eastern end of Harold Street, near its intersection with Arabilia Street, is not a section of the street that would be readily recognised as a traditional character streetscape, Mr Elliott conceded, in cross-examination, that if AO5(d) is concerned with a section of the street within the overlay (as it is), the acceptable outcome is not made out.^[20]  It was submitted however, that when regard is had to Mr Elliott’s process of reasoning, the Court could conclude that the subject land and dwelling forms part of a different section of the street from the more central area of the mapped overlay, which, it was submitted, has a much more distinct traditional building character. 

18. [18]
    It must be remembered that, in this regard, the planning scheme focuses on a section of the street within the overlay, rather than on development beyond its boundary. Even if the relevant section of the street were limited to that east of Heriot Street, the overlay consists of three houses on the southern side of Harold Street, two of which (including the subject house) are of traditional building character and one of which, (No. 63) whilst not itself of that character, is sufficiently sympathetic that Mr Elliott was prepared, in the course of cross-examination, to say that “it doesn’t have an adverse impact on the traditional character of the overall streetscape”.^[21]  In such circumstances, I would not be prepared to find that compliance with AO5(d) had been established, even if the relevant section of the street was as confined as contended for by counsel for the appellant. 

19. [19]
    In any event, I consider that the relevant section of the street extends beyond the section to the east of Heriot Street. It has already been noted that Mr Elliott accepted, in cross-examination, that the group of 11 houses, of which the subject house forms part, has traditional character as a collective group. I do not consider that the subject house is in a different section of the street than the other members of that group. AO5(d) is not made out.

20. [20]
    Insofar as PO5(c) and AO5(c) are concerned, it is somewhat difficult to reconcile Mr Elliott’s concession, in cross-examination, that the subject house makes a contribution to the traditional building character of that part of the street within the overlay^[22] with his assertion that its demolition would not result in the loss of traditional building character.  That might be explained by what seemed to be his over-reliance, in relation to the loss of traditional building character, on relativity. 

21. [21]
    The subject house sits at the edge of the overlay, but even if it were accepted that, in a relative sense, its contribution or importance is, for that reason, less than those houses located more centrally within the overlay, surrounded by other buildings of traditional building character also within the overlay, it would not follow that the subject house makes no material or significant contribution, or that its demolition would result in no material or significant loss of traditional building character. If it were otherwise, then, as Mr Elliot appeared to acknowledge^[23] in cross-examination, many buildings on the edges of such overlays could be in jeopardy.

22. [22]
    The subject house does not have to be as important as the others in order to be worthy of preservation from demolition under the provisions of the Overlay Code. It is enough to exclude PO5(c) that it makes a contribution and it is enough to exclude AO5(c) that its demolition would result in the loss of traditional building character. Those provisions are not to be read in an absolute way, as if they referred to an immaterial, trivial or insignificant contribution or loss, but neither does the contribution or loss necessarily have to be as great as would be the case for every other house in the relevant part of the street. When regard is had to the facts, it is difficult to resist the conclusion that the subject house makes a material and significant contribution in the respect described in PO5(c) and that its demolition would result in a material and significant loss of traditional building character within the meaning of AO5(c).

23. [23]
    It has already been observed that the subject house represents traditional building character and is substantially intact. It also presents itself to and is clearly visible from, the street in front of the property.^[24] A passer-by can readily appreciate its traditional character. Further, a passer-by can not only appreciate its traditional character, but can also observe that the house exists in the context of other houses, of like character in the street. Those include its immediate neighbour as well as houses on the northern side a little further up the street.^[25] As Mr Elliot accepted, looking up the hill, towards Logan Road, from outside the subject property, you would think this is a typical old Brisbane street.^[26] That is so albeit that, as the passer-by looked around, he or she would see that the subject house is the most easterly of the houses of such character.

24. [24]
    There was some attention given to the extent to which the subject house could be seen from locations further west within the overlay. That obviously depends upon a range of variables in relation to the particular viewpoint including distance, the viewing angle (including which side of the street the viewpoint is from) and the extent of intervening vegetation. In considering such viewpoints it should be borne in mind that a passer-by’s perception of a streetscape depends upon cumulative observations rather than on any one static view.^[27]

25. [25]
    The evidence satisfies me that the subject house can be observed from viewpoints other than directly in front of it. The subject house can be seen from a position in front of its immediate neighbour. It can also be seen from points in front of the nearest buildings of traditional character within the overlay on the northern side of the street, although the extent to which the house is seen varies and Mr Kennedy accepted that the house is not prominent in the photographs he took from two viewpoints on the northern side of the street to the west of the subject house.^[28] As he opined however, the street ‘unfolds’ to the passer-by and whilst the subject house might not be the most prominent in the street, it achieves some prominence as you get to it.^[29] I do not consider that the extent of its visibility is confined to an extent that results in it not making a significant contribution or which would render the loss of traditional building character consequent upon its demolition insignificant.

26. [26]
    It is, in this respect, quite unlike the house in Williams v Brisbane City Council,^[30] which was so set back and down on a site sloping away from its street frontage, that much of it was effectively subterranean relative to the street, screened by long standing vegetation and obstructed, in terms of available viewing angles, by adjacent houses and garages.

27. [27]
    To the extent it is relevant to have regard to what lies beyond the overlay, either for the purposes of the Overlay Code or for considering the exercise of the residual discretion, I am not satisfied that the non-traditional character buildings lead to a conclusion of compliance with the Overlay Code or that a favourable exercise of discretion is warranted.

28. [28]
    I have already dealt with the two non-character houses to the west within the group of 11 within the overlay. To the east of the subject site lies a 1970’s brick apartment building outside the overlay. That is separated from the subject site by a small area (also beyond the overlay) owned by Energex^[31] which, as Mr Elliot accepted in cross-examination,^[32] is characterised by open space and vegetation. I accept Mr Kennedy’s opinion expressed in his individual report^[33] to the effect that the unit development is removed from the house and isolated in the street by vegetation and infrastructure to the extent that it has little impact on the subject house’s traditional character.

29. [29]
    On the northern side of Harold Street east of Heriot Street (where the overlay terminates) lies a series of more modern houses. Those directly opposite the subject house have however, been designed with some features that are sympathetic or complementary to traditional character such that, whilst not pre-1947 buildings they, as Mr Kennedy opined,^[34] have little impact on the subject house.

30. [30]
    Mr Elliot also drew attention to some contemporary housing on the northern side of Harold Street east of its intersection with Arabilia Street. Those houses sit opposite a sports field. There were previously some older houses there. That development is not in the same block as the subject site and is not within an overlay. When I questioned Mr Elliot about its relevance to the assessment of the subject application it appeared that he referred to it on the basis of suggesting that if the older houses that once stood opposite the playing field in that next block were not protected then why should the subject house be protected where it lies opposite non-traditional character buildings in the subject block.^[35] That was an unhelpful attempt at making an adversarial (and meritless) point.

31. [31]
    I do not, in the circumstances, consider that what lies beyond the overlay substantially reduces the contribution made by the subject house or substantially mitigates the loss of traditional character that would result from its demolition. I have already found, consistently with Mr Elliot’s concession in cross-examination, that the house contributes to the traditional building character of that part of the street within the overlay. I reject the description he gave the house in his report as an “isolated, anomalous element” or in his testimony^[36] as having always been “relatively isolated from the fairly cohesive group of character houses further up the hill”. I prefer the opinions of Mr Kennedy whose approach was mindful of the relevant provisions of the Overlay Code and who, in my view, fairly assessed the relevant part of the street within the overlay, the contribution made by the subject house and the loss of traditional character that would result from its demolition.

32. [32]
    For the reasons given I am not satisfied either that the provisions of the Overlay Code are satisfied^[37] or that the application ought be approved in the exercise of discretion. Accordingly I dismiss the appeal.