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Cheng v Brisbane City Council[2023] QPEC 49

Cheng v Brisbane City Council[2023] QPEC 49

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cheng v Brisbane City Council [2023] QPEC 49

PARTIES:

TIANJIA CHENG

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

2077 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

21 November 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2023, 21 November 2023

JUDGE:

Kefford DCJ

ORDER:

I order:

  1. the appeal is dismissed; and
  2. the Council’s decision is confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL BUILDING CHARACTER – where there are only three pre-1947 houses in the relevant part of the street – where two of those houses have been modified – whether the subject land is in a section of the street within the Traditional building character overlay that has no traditional character – whether the proposed demolition complies with the Traditional building character (demolition) overlay code

LEGISLATION:

Planning and Environment Act 2016 (Qld), ss 43, 45, 59, 60

Planning and Environment Court Act 2016 (Qld), ss 43, 46, 47

CASES:

Bilalis v Brisbane City Council [2017] QPEC 42; [2017] QPELR 997, approved

Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, approved

Leach & Ors v Brisbane City Council [2011] QPEC 55, [2011] QPELR 609, distinguished

Marriott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910, approved

COUNSEL:

B Rix for the Appellant

L Walker for the Respondent

SOLICITORS:

Keypoint Law for the Appellant

City Legal for the Respondent

TABLE OF CONTENTS

Introduction 2

What is the applicable decision framework?2

What are the issues to be determined?4

What do the applicable assessment benchmarks require?4

What are the general principles about the assessment of traditional character and traditional building character that can be distilled from earlier cases?7

What is the character of the subject house? 9

What are the characteristics of Orleigh Street and the built form within it? 9

Does the relevant section of Orleigh Street have traditional character?12

Conclusion19

Introduction

  1. [1]
    This is an appeal against the decision of the respondent, Brisbane City Council (“the Council”) refusing the Tianjia Cheng’s development application to facilitate the full demolition of a pre-1947 residential building (“the subject house”) at 33-35 Orleigh Street, West End (“the subject land”).  The subject land has an area of approximately 596 square metres.  It is situated opposite Orleigh Park, which runs along the bank of the Brisbane River.
  2. [2]
    Ms Cheng lodged her development application to demolish the residential building on the subject site on 5 April 2023 under Brisbane City Plan 2014 (“City Plan”).  On 14 July 2023, the Council refused the development application.  On 20 July 2023, Ms Cheng filed her notice of appeal. 

What is the applicable decision framework?

  1. [3]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies. 
  2. [4]
    The appeal proceeds, generally, by way of hearing anew.[1]  It is for Ms Cheng to establish that the appeal should be allowed.[2] 
  3. [5]
    The development application required code assessment.  As such, the Court’s assessment of the development application must be carried out only:
    1. against the applicable assessment benchmarks in a categorising instrument; and
    2. having regard to any matters prescribed by regulation.[3]
  4. [6]
    The only applicable assessment benchmarks that the parties have put in issue in this case are in City Plan, which is a categorising instrument.[4]  The assessment must be carried out against the instrument in effect when the development application was properly made.[5]  In this instance, version 26 of City Plan was in effect at the relevant time.
  5. [7]
    There are no matters prescribed by regulation that the parties rely on in this appeal.
  6. [8]
    In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions that the Court considers appropriate.[6]  The decision must be based on the assessment.[7] 
  7. [9]
    The Court must approve the development application to the extent it complies with all the assessment benchmarks.[8]  To the extent that the proposed development does not comply with all or some of the assessment benchmarks, the Court may decide to refuse the development application only if compliance cannot be achieved by the imposition of development conditions.[9]  Even if the development does not comply with some of the assessment benchmarks, the Court may decide to approve the application.[10] 
  8. [10]
    The question of whether departure from an assessment benchmark warrants refusal is a separate and distinct question.  I respectfully agree with the observations of His Honour Judge Williamson QC in Klinkert v Brisbane City Council.[11] 
  9. [11]
    In this case, as the development involves demolition, it is common ground that if I find non-compliance with the relevant assessment benchmarks:
    1. compliance cannot be achieved by the imposition of development conditions;
    2. there is no discretionary reason to approve the proposed development; and
    3. the development application should be refused. 

What are the issues to be determined?

  1. [12]
    The parties agree that there is only one issue for determination in this appeal.  It is whether the subject land is in a section of Orleigh Street within the Traditional building character overlay that has no traditional character. 
  2. [13]
    The parties submit that the answer to that question will inform whether there is compliance with the only assessment benchmarks that are in issue in this case, namely acceptable outcome AO5(d), performance outcome PO5(c), and the overall outcomes in ss 8.2.21.2 2.a. and d. of the Traditional building character (demolition) overlay code of City Plan. 
  3. [14]
    These provisions of City Plan are applicable assessment benchmarks given the subject land is in:
    1. the 2 or 3 storey mix precinct of the Low-medium density residential zone;
    2. the West End – Woolloongabba district neighbourhood plan area; and
    3. the Neighbourhood character sub-category of the Traditional building character overlay.

What do the applicable assessment benchmarks require?

  1. [15]
    The overall outcomes in ss 8.2.21.2 2.a. and d. of the Traditional building character (demolition) overlay code state:

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

a. Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character or traditional building character.

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.”

  1. [16]
    Performance outcome PO5(c) and acceptable outcome AO5(d) of the Traditional building character (demolition) overlay code state:

Performance outcomes

Acceptable outcomes

Section B–Demolition or removal of a building constructed in 1946 or earlier

General performance outcomes and acceptable outcomes if not in the Latrobe and Given Terrace neighbourhood plan area or the City west neighbourhood plan area or the Spring Hill neighbourhood plan area

PO5

Development involves a building which:

a. does not represent traditional building character; or

b. is not capable of structural repair; or

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:

a. has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; or

b. an engineering report prepared by a Registered Professional Engineer Queensland which certifies that the building is structurally unsound and not reasonable capable of being made structurally sound; or

c. if demolished will not result in the loss of traditional building character; or

d. is in a section of the street within the Traditional building character overlay that has no traditional character.

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

(emphasis reflects the Council’s allegations)

  1. [17]
    The Traditional building character planning scheme policy provides guidance on the traditional character of areas and the traditional building character of buildings.  I have considered its contents. 
  2. [18]
    Pursuant to s 5.3.3 2.c. of City Plan, code assessable development that complies with the purpose, overall outcomes and the performance outcomes or acceptable outcomes of the Traditional building character (demolition) overlay code complies with the code. 
  3. [19]
    The subparagraphs in performance outcome PO5 and acceptable outcome AO5 of the Traditional building character (demolition) overlay code are expressed disjunctively, rather than conjunctively.
  4. [20]
    For the avoidance of doubt, I note that:
    1. consistent with its reasons for refusal, the Council maintains that the proposed demolition does not comply with any of the subparagraphs in performance outcome PO5 and acceptable outcome AO5 of the Traditional building character (demolition) overlay code; and
    2. Ms Cheng does not dispute the Council’s alleged non-compliance with subparagraphs a. and b. of performance outcome PO5 and subparagraphs a., b. and c. of acceptable outcome AO5. 
  5. [21]
    That Ms Cheng does not dispute non-compliance with subparagraphs a. and b. of performance outcome PO5 and subparagraphs a., b. and c. of acceptable outcome AO5 in this case is unsurprising given:
    1. Mr Malcolm Elliott and Mr Luke Pendergast, the heritage architects retained by Ms Cheng and the Council respectively, agree that the subject house:
      1. (i)
        is a pre-1947 residential building;
      1. (ii)
        represents traditional building character;
      1. (iii)
        has not been substantially altered;
      1. (iv)
        has the appearance of being constructed in 1946 or earlier;
      1. (v)
        if demolished, would result in the loss of traditional building character; and
    2. the absence of an engineering report addressing the issues raised in subparagraph b. of performance outcome PO5 and subparagraph b. of acceptable outcome AO5.
  6. [22]
    It follows that if Ms Cheng is unable to demonstrate that the subject house is in a section of the street that has no traditional character, she will not have established compliance with the Traditional building character (demolition) overlay code.
  7. [23]
    The Council concedes that, if the Court is satisfied that the relevant section of Orleigh Street has no traditional character:
    1. compliance with acceptable outcome AO5(d) and the overall outcomes in ss 8.2.21.2 2.a. and d. of the Traditional building character (demolition) overlay code will have been established; and
    2. compliance with those provisions would justify approval.
  8. [24]
    It concedes that, in those circumstances, I must approve the proposed demolition.
  9. [25]
    Before turning to consider the character of Orleigh Street, it is helpful to first briefly record:
    1. general principles about the assessment of traditional character and traditional building character that can be distilled from earlier cases;
    2. the character of the subject house; and
    3. the characteristics of Orleigh Street and the built form within it.
  10. [26]
    With respect to the last of those two matters, and the ultimate issues, I have the benefit of various forms of evidence, including:
    1. expert evidence from Mr Elliott and Mr  Pendergast;
    2. historical photographs, including historical aerial photographs;
    3. plans and maps; and
    4. many photographs, which include but are not limited to:
      1. (i)
        individual photographs of each building in Orleigh Street showing their current presentation to Orleigh Street; and
      1. (ii)
        a series of photographs that show the view along Orleigh Street, that is available from the pathway in Orleigh Park.
  11. [27]
    Although it is not evidence, my appreciation of the evidence was assisted by a site inspection undertaken on the first day of the hearing, during which we walked the length of both sides of Orleigh Street in the company of Counsel. 
  12. [28]
    My findings reflect the aggregate impression that I have formed having regard to the collective effect of the evidence to the extent that it is accepted by me.

What are the general principles about the assessment of traditional character and traditional building character that can be distilled from earlier cases?

  1. [29]
    On many occasions in the past, this Court has been called on to determine the character of a street within which a pre-1947 house in the Brisbane local government area is proposed to be demolished. 
  2. [30]
    The assessment of traditional character and traditional building character is an evaluative exercise that calls for consideration of the circumstances of the case in its relevant planning context.  Undertaking a comparison of the situation that pertains in one case to the situation in other cases, or a process of cataloguing the similarities and differences in the circumstances pertaining in each case, is unlikely to assist.  That said, the task may be assisted by consideration of general principles that can be distilled from earlier cases, provided care is taken to identify whether there is any material difference in the planning context. 
  3. [31]
    Relevant principles include the observations of her Honour Judge Bowskill QC (as her Honour then was), in Marriott v Brisbane City Council,[12] where her Honour observed that the determination of whether an area has no traditional character is not to be approached in absolute terms.[13]  Rather, it is to be understood as whether an area “does not have sufficient character to be reasonably described as having traditional character”.
  4. [32]
    In Bilalis v Brisbane City Council[14], I considered whether a proposed demolition complied with acceptable outcome AO5(c) of the Traditional building character (demolition) overlay code. 
  5. [33]
    With respect to that issue, when considering an acceptable outcome, I observed:[15]

[33] In earlier cases, the court has considered the meaning of this phrase, which has appeared in various Council planning documents with respect to demolition of heritage and traditional character buildings. The following principles emerge from those decisions:

  1. the provision ought not be construed as positing an absolute, rather that a street does not have sufficient character to be reasonably described as having traditional character;
  1. it is not necessary that the street be “pristine”;
  1. it is relevant to enquire whether the street in question has been robbed of its traditional character by the extent of redevelopment;
  1. in determining the street’s character, the task is to consider the visual character of the street as a whole, not the character of houses or groups of houses in isolation;
  1. to identify a street as having a mixed character is to still identify a single character applying in respect of an entire street under consideration;
  1. there is nothing in the provisions that requires the street to have homogeneity of, or even predominance of, buildings of traditional character for retention of a building of traditional character in the street to be justified; and
  1. although a numerical predominance of non-traditional character buildings in a street is a relevant factor, it does not follow that numerical predominance will inevitably justify a finding that a given street has no traditional character, or that a building of traditional character does not contribute positively to the visual character of the street: a more evaluative assessment is required.”
  1. [34]
    As I also observed,[16] what is called for is an assessment of the present character, not a consideration of the transition of the area, nor of the underlying zoning or overlay. 
  1. [35]
    At the time those cases were decided, the relevant acceptable outcome said:

“Development involves a building which is in a street that has no traditional character.”

  1. [36]
    Due to subsequent amendments to City Plan, the provisions now embrace the concept of only a “section of the street” the Traditional building character overlay being relevant to the consideration of these matters, rather than a broader consideration of the whole street.
  2. [37]
    With those matters in mind, I now turn to the circumstances of this case.

What is the character of the subject house?

  1. [38]
    Mr Elliott and Mr Pendergast agree that the subject house is a pre-1947 residential building that was constructed in about 1923 or 1924 and not before 1911.  The experts both opine that the subject house appears to be largely intact.  The experts say the subject house retains many original built form elements and corresponding traditional construction that contributes to the presentation of traditional building character within the streetscape.  According to the experts, the subject house appears to have been constructed as a variant of the transverse double gable traditional house typology, which is a traditional residential design introduced in Brisbane during the interwar period.  The experts explain their opinions about the style of the subject house by reference to an architectural publication about traditional character housing in Brisbane. 
  2. [39]
    It is the opinion of Mr Elliott and Mr Pendergast that the subject house represents traditional building character, has the appearance of being constructed in 1946 or earlier, and has not been substantially altered.  In forming that opinion, Mr Elliott and Mr Pendergast had regard to the guidance about traditional building character provided by the Traditional building character planning scheme policy.
  3. [40]
    Mr Elliott and Mr Pendergast opine that, if the subject house was demolished, that would result in the loss of traditional building character. 
  4. [41]
    Having regard to the photos of the subject house, and the features evident in the photographs, I accept the evidence of the experts in this regard. 

What are the characteristics of Orleigh Street and the built form within it?

  1. [42]
    Orleigh Street is a short street in West End that runs between Montague Road at its western end and Hoogley Street to the east.  Towards the eastern end, about two-thirds of the way along Orleigh Street’s length, the street is intersected by Morry Street.
  2. [43]
    The northern side of Orleigh Street is lined with houses but there are no houses on the southern side.  Orleigh Park lies between the Brisbane River and the southern side of Orleigh Street.
  3. [44]
    The subject house sits just to the east of the middle of Orleigh Street.  It is the third house to the west of the intersection of Orleigh Street and Morry Street.
  4. [45]
    Not all the land in Orleigh Street is relevantly mapped on the Traditional building character overlay map.  The mapped areas are separated into three sections. 
  5. [46]
    The western section is comprised of a single lot at the corner of Montague Road and Orleigh Street that contains a detached dwelling house constructed before 1936.  Although, in this western section, only one lot fronting Orleigh Street is mapped as subject to the Traditional building character overlay, that lot adjoins a mapped lot that fronts Montague Road.  It forms part of a larger cluster of land on the Traditional building character overlay map that runs along the eastern and western sides of Montague Road. 
  6. [47]
    On the six lots between the western section and the central section on the Traditional building character overlay map are:
    1. a multi-storey residential building constructed in the early 1970s;
    2. a multi-storey residential building constructed in the early 1980s;
    3. a detached house, straddling two lots, constructed in the early 1980s; and
    4. a detached house, straddling two lots, constructed in about 2008. 
  7. [48]
    The central section of Orleigh Street that is mapped on the Traditional building character overlay map is comprised of 12 lots immediately to the west of the intersection of Orleigh Street and Morry Street.  From west to east, those lots contain:
    1. a cluster of three detached houses constructed in about 2009 that have a strikingly similar, contemporary appearance;
    2. at 47-49 Orleigh Street, a single detached house, straddling two lots, constructed in about the 1920s;
    3. a detached house constructed in the late 1950s;
    4. at 39 Orleigh Street, a single detached house constructed in about the late 1930s to early 1940s (but before 1946);
    5. a detached house constructed in about 2013;
    6. at 33-35 Orleigh Street, the subject house, which is a detached dwelling house, straddling two lots, constructed in about the mid-1920s; and
    7. a cluster of two detached houses constructed in about 2000 that have a strikingly similar, contemporary appearance. 
  8. [49]
    On the three lots between the central section and the eastern section on the Traditional building character overlay map are:
    1. a detached house constructed in the mid-1950s;
    2. a multi-storey residential building constructed in the late 1990s; and
    3. a multi-storey residential building constructed in the early 1970s.
  1. [50]
    The eastern section of Orleigh Street that is mapped on the Traditional building character overlay map is comprised of four lots terminating at the intersection of Orleigh Street and Hoogley Street.  From west to east, those lots contain:
    1. at 9-11 Orleigh Street, a detached house, straddling two lots, that was constructed before 1927;
    2. a multi-storey residential building constructed in about 2015; and
    3. a detached house constructed in about 2015, which is located at the intersection of Orleigh Street and Hoogley Street, and has a street address of 39 Hoogley Street.
  1. [51]
    For reasons that will become apparent, the constitution of this eastern section of Orleigh Street is not determinative of my final views in this case.  Nevertheless, given the attention that was paid by Mr Elliott to a previous decision of this Court about the eastern section, I will briefly mention that case now. 
  2. [52]
    It is the decision of his Honour Judge Searles in Leach & Ors v Brisbane City Council.[17]  The decision concerned a development application seeking to demolish two pre-1947 houses in the eastern section of Orleigh Street.  They were adjoined dwellings.  The demolitions were approved by the Court and, since that decision, one of the two dwellings has, in fact, been demolished.  His Honour Judge Searles observed:[18]

[35] The evidence of Mr Macdonald coupled with the inspection of the subject site leaves me in little doubt that his evidence is to be preferred to that of Mr Veal on the issue of the character of Orleigh Street, notwithstanding its status in 1946 as evidenced by the photograph in evidence.  The street has in my view moved well away from the traditional character it manifested in 1946.  Today its character is of a modern nature notwithstanding there remain a small number of houses of a traditional building character, two of which are the subject houses.”

  1. [53]
    In that case, the assessment benchmarks against which the development application was to be assessed by his Honour were in different terms to that which I am required to consider.  In that decision, acceptable solution A1.4 stated “The street has no traditional building character.  That acceptable solution was provided in relation to performance criteria P 1, which is also in different terms to performance outcome PO5 in version 26 of the City Plan.  Performance criteria P 1, which was considered by his Honour Judge Searles, stated:

“The building:

  • Must not represent traditional building character; or
  • Must not be capable of structural repair; or
  • Must not contribute positively to the visual character of the street.”
  1. [54]
    What is evident when one compares those two provisions to acceptable outcome AO5(d) and performance outcome PO5(c) is that both provisions have material differences.
  2. [55]
    I am to consider whether “a section of the street within the traditional building character overlay” has no traditional character, and whether the development involves a building which does not contribute to the traditional building character of that part of the street within the Traditional building character overlay.
  3. [56]
    Not only are these provisions different because of the focus on part of the street as compared to the whole street, in performance criteria P 1, as considered by his Honour Judge Searles, the focus was on “the visual character of the street”, not the “traditional building character”.
  4. [57]
    Further, as I have already mentioned, the issue is one that calls for consideration of the circumstances of the case.  It is an evaluative exercise.  As such, it is one on which reasonable minds might differ.

Does the relevant section of Orleigh Street have traditional character?

  1. [58]
    The experts opine, and both parties accept, that it is the central section of Orleigh Street that is relevant to this appeal.  It is also common ground that within that section of Orleigh Street, there are three pre-1947 houses, which are separated by a post-1946 house between each.  The pre-1947 houses are located:
    1. on the subject land;
    2. at 39 Orleigh Street; and
    3. at 47-49 Orleigh Street.
  2. [59]
    These matters are supported by the evidence, and I accept them. 
  3. [60]
    The character of Orleigh Street, and the relevant section of it, does not have a pristine traditional character.  In those circumstances, it is unsurprising that Mr Elliott and Mr Pendergast express differing opinions about whether the central section of Orleigh Street has a traditional character.  This is a question of fact about which reasonable minds might differ.
  1. [61]
    Ms Cheng contends that, over time, Orleigh Street has had a fatal shift away from traditional character such that the protective provisions of City Plan (even as they are in force today) should not stand in the way of the proposed demolition.  To discharge her onus, Ms Cheng relies on the evidence of Mr Elliott, and those aspects of the other evidence that are consistent with the evidence of Mr Elliott.
  1. [62]
    Mr Elliott provides a detailed history of how the street has changed (and indeed substantially so) since May 1946.  The relevant factual matters in Mr Elliott’s analysis are uncontested.  Mr Elliott opines that there is an apparent absence of any tangible elements of traditional building character demonstrated across the recent tranche of infill development.  He describes the new houses as three storey rendered masonry houses with suspended concrete decks, frameless glass balustrading, and no roof form.  He says that none of those things are traditional building character.  Mr Elliott opines that there has been a deterioration of the traditional character in Orleigh Street over time. 
  2. [63]
    Mr Pendergast accepts as correct those relevant factual matters in Mr Elliott’s analysis of how the street has changed.  He acknowledges that 55, 53, 51 and 37 Orleigh Street are contemporary houses with limited mature vegetation in their front gardens.  Mr Pendergast considers that 55, 53 and 51 Orleigh Street represent an introduction of buildings or lots that are significantly smaller than the historical size of dwelling houses that prevailed historically, particularly in 1946. 
  3. [64]
    The historical photographs show that in 1946, the central section of Orleigh Street contained four dwellings, of which three now remain.  One can see from the aerial photograph that those houses were spaced differently than the houses now present on the street.  There has been infill between some of them. 
  4. [65]
    Mr Pendergast accepts that the size of dwelling houses and things such as their pattern of spacing in the street is a matter that the Traditional building character planning scheme policy indicates impacts on questions of traditional scale and whether part of a street displays traditional character.  Mr Pendergast acknowledges that 31 and 29 Orleigh Street are also clearly not pre-1947 dwellings.  They are modern.  Additionally, Mr Pendergast accepts that leaving aside the definition of storey in City Plan, all these modern houses present to the street as having three levels.  They do not present with the traditional building character of pre-1947 houses, which Mr Pendergast described as houses of single-storey raised off the ground on stumps, and that have subsequently been in-filled underneath. 
  5. [66]
    With respect to the house at 43 Orleigh Street, constructed in the 1950s, neither of the experts seeks to prescribe it any traditional building character.  There is also no disagreement that Orleigh Park does not provide the street with any traditional character.
  6. [67]
    I accept the evidence to which I have just referred.  It is consistent with the photographic images.   As is evident from my earlier description of the buildings in the street, at present the northern side of Orleigh Street is developed with a mix of residential housing stock.  The photographic images reveal that, even within the limited constraint of the central, overlay-mapped area, six of the ten houses are unquestionably modern.  They are the houses located at 55, 53, 51, 37, 31 and 29 Orleigh Street.  As such, these modern-style houses flank the subject house.  There is also no instance of two pre-1947 dwelling houses that adjoin each other in this section of the street (or indeed in any part of Orleigh Street more broadly).
  7. [68]
    With those matters in mind, I now turn to a more detailed consideration of the three pre-1947 dwelling houses, one of which is the subject house and the other two being the houses at 39 and 47-49 Orleigh Street.  It is from these three houses alone that any semblance of traditional character must be drawn.
  8. [69]
    It can readily be accepted that these three pre-1947 houses will be viewed in a context where:
    1. even on the Council’s case, they are the only aspects of the relevant section of the street that provides traditional building character and traditional character;
    2. they are out-numbered in terms of the total number of houses in the section mapped by the Traditional building character overlay map;
    3. collectively, they have a street frontage of 55 metres, which is less than the 75 metres of collective street frontage occupied by buildings that are not pre-1947 residential buildings; and
    4. all of them are flanked by more modern dwelling houses.
  9. [70]
    With respect to the house at 39 Orleigh Street, Mr Elliott notes that, over time, this traditional character house transitioned from its original built form as an elevated, single-storey residence with open under croft space beneath into a three-storey residential structure that is now in place.  He opines that the renovations have severely eroded, if not virtually extinguished, any presentation of traditional building character that the house once offered within the Orleigh Street streetscape.  He says that this house currently presents an overtly vertically proportioned street façade to Orleigh Street that is inconsistent in its width-to-height proportion with that of the few other examples of pre-1947 houses still remaining within this same street.  He says that the extruded vertical built form of this residence has been set upon a concrete deck covering a basement carpark level that is now readily identified as a third storey within that streetscape.
  10. [71]
    Mr Elliott says that the house at 47-49 Orleigh Street has also undergone a series of alterations and additions to its original built form that have transformed the traditional character house from an elevated, single-storey character residence into a three-storey residential structure within the Orleigh Street streetscape.  He says that the renovations have seen that the manner in which that built form initially presented traditional building character within the Orleigh Street residential streetscape has been subsequently compromised to a significant degree.  This, he says, is caused by a combination of raising of that pre-1947 house, substantial extensions made to it, the total removal of its original front garden setting and the replacement of the garden setting with a concrete and masonry garaging structure that extends out to the front property boundary.
  11. [72]
    With respect to each of these modified houses, Mr Elliott opines that the character house can be clearly seen, but he says that each looks like it is some sort of cake decoration sitting on top of something that bears no resemblance to any other aspect of traditional character.  He says those houses are not of traditional scale and have no traditional setting.
  12. [73]
    Mr Elliott opines that the combined effect of the modification to those two houses on the streetscape more generally has been significant.  He considers that there is now an eclectic and ostensibly contemporary residential streetscape within the central portion of the Orleigh Street streetscape.  In those circumstances, he considers it difficult to conclude anything other than that this central part of the subject streetscape now comprises a cohesive cluster of modern buildings with a single pre-1947 house, being the subject house, retaining its original built form, scale and contextual setting.  He says the subject house is effectively isolated within what now is a predominantly non-traditional, residential streetscape.
  13. [74]
    Mr Elliott opines that there is a limited extent of traditional character streetscape remaining within this street.  He says that the negligible contribution made by the two extensively modified, three-storey pre-1947 houses situated nearby to the subject house is inconsequential.  In his view, they do not provide any meaningful representation of traditional building character within Orleigh Street.
  14. [75]
    Ultimately, Mr Elliott opines that having regard to the relative isolation of the subject house, it is logical to conclude that the subject house is situated within a part of that street that no longer has sufficient character to be reasonably described as having traditional character.
  15. [76]
    Mr Pendergast’s evidence supports some aspects of the evidence of Mr Elliott.  Mr Pendergast acknowledges that both houses were originally single-level houses.  He accepts that they are clearly not so today.  He accepts that at least one, potentially both, present to the street today as three level houses.  He accepts that there is no support for such a three-level house in the Traditional building character planning scheme policy.  Under the Traditional building character planning scheme policy, a single-level dwelling house elevated on stumps is part of the identified traditional building form.  During cross-examination, Mr Pendergast acknowledged that there are very few traditional building houses pre-1947 that were built as three storeys.  He explained that, if there are pre-1947 houses that present as three storeys, it would be because of the topography of the land.  Effectively, if the land is steeply sloping, it may result in a presentation of three levels.  He says that is the case in this street, where the pre-1947 dwelling houses at 39 and 47-49 Orleigh Street are set about halfway back on sites that rise about three to four metres from front boundary to rear boundary.  He says this enabled an excavation at the front of those sites to create carports at a lower level. 
  16. [77]
    A consequence of the modifications to introduce a carport at 39 Orleigh Street and 47 to 49 Orleigh Street was that those lots no longer present with the traditional setting.  Prior to the renovation, each presented with a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and a single width driveway.  This is part of a traditional setting described in s 2.5 1. of the Traditional building character planning scheme policy.  The houses 39 and 47-49 Orleigh Street no longer present in this manner.
  17. [78]
    The modifications to the houses at 39 and 47-49 Orleigh Street are also evident because they involve materials and detailing that is not in keeping with the traditional, pre-1946 materials and detailing.  The materials used in the renovation were not only the relatively limited range of materials that were available prior to 1947, to which reference is made in the description of traditional character in s 2.3 3. of the Traditional building character planning scheme policy.
  18. [79]
    A comparison of photographs of each of 39 and 47-49 Orleigh Street prior to their most recent renovations to current photographs of these also reveals that there has been a reduction of the extent to which each house presents as having enclosed areas underneath that maintain the street appearance of lightweight supports to upper floors.  This is a presentation which is described in s 2.2(1)(b) of the Traditional building character planning scheme policy as something that is typical of the Queensland vernacular in pre-1946 houses. 
  1. [80]
    Ms Cheng submits that the modifications to which I have just referred, and their impacts in terms of presentation, tell strongly against, and perhaps fatally so, any suggestion that this streetscape retains sufficient traditional character to engage with the protective provisions of City Plan.  She says that the modern status of the balance of the houses in the overlay only furthers the difficulties in terms of establishing a traditional character streetscape.  Ms Cheng says that those matters support Mr Elliott’s opinion that the subject house is in a section of the Orleigh Street streetscape mapped in the overlay that has no observable and cohesive traditional character.
  1. [81]
    I accept that the pre-1947 houses at 39 and 47-49 Orleigh Street have been modified, and that the modifications are readily apparent.  To the extent that there may have been doubt about the extent of the modifications, Mr Elliott’s analysis of the historical context assists in the identification of the modifications.  That said, I do not accept Mr Elliott’s opinion about the resultant impact on the character of the relevant part of Orleigh Street.
  2. [82]
    Whether the pre-1947 houses present in the same way that they did in 1946 is not the test.  What is relevant is whether the houses as they currently present exhibit traditional building character or, more relevantly, whether the relevant section of the street has sufficient character to be reasonably described as having traditional character.
  3. [83]
    In that respect, I do not accept Mr Elliott’s opinion for a number of reasons.  Having heard Mr Elliott’s oral evidence, I formed the impression from, in combination, the answers that he gave and his demeanour that his analysis of the character of the relevant section of Orleigh Street was heavily informed by the decision of his Honour Judge Searles in Leach & Ors v Brisbane City Council.  Mr Elliot appeared to take his Honour’s decision in that case as constituting a baseline against which he undertook an analysis of redevelopment that has since occurred in Orleigh Street.
  4. [84]
    One, but not the only, matter that highlights my concerns in this regard is the answer that he gave to a question asked during cross-examination.  The relevant exchange was as follows:[19]

“So Leach is really of limited assistance to her Honour in determining whether there’s traditional character in this particular section of Orleigh Street?As I said at the beginning of cross-examination, I – I think that the – the Leach decision is beneficial in terms of identifying which houses were in the street at the time and where they are, and that, to me, is a – is a reasonable start.  Normally we don’t have that as a – as a base point, and as I say, that – that was – that was the – the base position from – from where I’ve continued the assessment, looking at what’s been going on in the street since that time.”

  1. [85]
    As I have already said, my impression is that Mr Elliott placed considerable reliance on the decision of his Honour in Leach & Ors v Brisbane City Council in forming his opinion.  That causes me to doubt the reliability of his ultimate opinion. 
  2. [86]
    I am also not inclined to accept Mr Elliott’s opinion as his analysis appeared to rely, at least in some part, on his opinion about the merit of planning decisions made by the Council in respect of the balance of Orleigh Street.  He described the decisions as “having put so much effort” into diminishing the streetscape. 
  3. [87]
    Another matter which causes me concern about Mr Elliott’s ultimate opinion is that it is difficult to reconcile with his concession, made under cross-examination, that the pre-1947 dwellings at 39 Orleigh Street and 47 to 49 Orleigh Street continue to exhibit elements of traditional building character recognised by the Traditional building character planning scheme policy.  Those elements are the traditional building form and roof styles, and traditional elements, detailing and materials.  During cross-examination, Mr Elliot conceded that those elements of traditional building character remain clearly visible, notwithstanding the most recent renovations. 
  4. [88]
    In addition, it became apparent during cross-examination that Mr Elliott’s opinion was, at least in part, informed by the attractiveness of 39 Orleigh Street and 47 to 49 Orleigh Street in terms of his focus on whether the house would be described as “a lovely character house”.[20] 
  5. [89]
    To the extent that the evidence of Mr Pendergast and the opinions of Mr Pendergast differ to that of Mr Elliott, I prefer the evidence of Mr Pendergast.  One of the key differences in their evidence appears to me to be a difference in approach and in emphasis.  Rather than focusing on, or even starting with, a previous decision of the Council and the Court, Mr Pendergast has undertaken a fresh assessment of the character of the relevant section of Orleigh Street to consider whether it has traditional character.  He has applied his professional expertise in doing so as an architect and heritage consultant.  In opining that the subject house is in a section of Orleigh Street within the traditional building character overlay that has traditional character, Mr Pendergast states:[21]

“The subject house is situated within a section of Orleigh Street with a cluster of three pre-1947 traditional building character dwellings: #33-35, #39 and #47-49.  These enduring examples of traditional building character are situated on allotments, each boasting a 20-meter street boundary frontage.  The wide allotments afford these dwelling greater streetscape presence along this section of Orleigh Street when compared to the 10m wide properties which characterise more recent detached dwelling house development.  Although these dwellings are not adjoining, they are collectively observed as a cohesive group within the visual catchment of the subject house.  These identified three (3) pre-1947 dwellings maintain their traditional building character, and collectively contribute to this section of Orleigh Street’s traditional character.”

  1. [90]
    I accept that evidence of Mr Pendergast.  It is consistent with figure 42 in the Joint Expert Report and the photographs that I have in the evidence before me.  The photographs demonstrate that the pre-1947 houses are visible as one proceeds up and down the relevant section of Orleigh Street.  Not only are they visible, those houses are readily identifiable as houses that provide a traditional character to Orleigh Street.  They exhibit traditional building character and contribute to the traditional character of the street.
  2. [91]
    In respect of the house at 39 Orleigh Street, Mr Pendergast opines that despite modifications to the original pre-1947 form, including modifications that resulted in the raising of the house, crucial elements such as the traditional roof forms, traditional building materials, traditional detailing and shade-forming elements of the house have been preserved.  He opines that, collectively, these elements continue to contribute to the continuation of the traditional building character of that dwelling house. 
  3. [92]
    Mr Pendergast says that the means of excavating the lower level does not give the impression to the casual observer that the house is overtly out of scale with the adjoining houses.  He opines that the subject house has not been substantially altered.  It remains the same house, with the same primary characteristics it had when it was originally constructed.  It is simply raised on the site and built in underneath. 
  4. [93]
    In Mr Pendergast’s analysis of the house at 47-49 Orleigh Street, he notes that, despite recent renovations, the evident contrast in materiality between the non-habitable lower level and the habitable upper levels, along with the retention of original traditional building character roof forms, materials and traditional detailing and shadow casting elements in the recent alterations, ensures that the house continues to contribute to traditional building character in this section of Orleigh Street. 
  5. [94]
    He says that although the building has been lifted and built in underneath, the core of the original house retains traditional building character materials, elements and detailing of the dwelling house remain evident and clearly visible from the surrounding streetscape nearby in this part of Orleigh Street. 
  6. [95]
    I accept Mr Pendergast’s opinions about the evident nature of the traditional building form and roof styles and traditional elements, detailing and materials of those houses.  They are supported by the many photographs before me.  That said, as I have already indicated, I also accept that the modifications have reduced and, effectively, removed the traditional setting that existed with respect to those houses prior to their most recent renovations. 
  7. [96]
    Overall, I accept Mr Pendergast’s conclusion that the three remaining pre-1947 houses maintain a degree of prominence in this part of Orleigh Street.  Together they form a cohesive cluster of dwelling houses with sufficient traditional detailing, materials and elements that, combined, create a part of the street which exhibits traditional character. 
  8. [97]
    On the basis of those findings, I am satisfied that the subject house is in a section of Orleigh Street within the Traditional building character overlay that has traditional character.  Accordingly, it does not comply with acceptable outcome 5(d) of the Traditional building character (demolition) overlay code. 
  9. [98]
    Based on my findings, I am equally satisfied that Ms Cheng has not demonstrated that the proposed development involves a building that does not contribute to the traditional building character of that part of the street within the Traditional building character overlay.  She has not demonstrated compliance with performance outcome PO5(c) of the Traditional building character (demolition) overlay code. 
  10. [99]
    For the reasons already provided, I am also satisfied that Ms Cheng has not discharged her onus with respect to demonstrating compliance with the overall outcomes in ss 8.2.21.2(ii)(a) and (d) of the Traditional building character (demolition) overlay code. 
  11. [100]
    As I have already observed, the subject house represents traditional building character, has the appearance of being constructed in 1946, or earlier, and has not been substantially altered.  It appears to be largely intact.  It contributes to giving the central section of Orleigh Street its traditional building character and its traditional character.  It does so individually and collectively with the other two pre-1947 houses.  It forms a part of a character streetscape that comprises residential buildings constructed in 1946, or earlier, nearby in the street within the Traditional building character overlay. 

Conclusion

  1. [101]
    For those reasons, Ms Cheng has not discharged her onus and the appeal should be dismissed.  The Council’s decision to refuse the development application should stand. 

Footnotes

[1]Planning and Environment Court Act 2016 s 43, subject to ss 46(2) and (5) of the Planning and Environment Court Act 2016.

[2] Planning and Environment Court Act 2016 s 45.

[3] Planning Act 2016 (Qld) s 45(3).

[4] Planning Act 2016 s 43(3)(a).

[5] Planning and Environment Court Act 2016 s 46, Planning Act 2016 s 45(7).

[6] Planning and Environment Court Act 2016 s 47.

[7] Planning Act 2016 s 59(3).

[8] Planning Act 2016 s 60(2)(a).

[9] Planning Act 2016 s 60(2)(d).

[10] Planning Act 2016 s 60(2)(b).

[11]  [2018] QPEC 30; [2018] QPELR 941, 957 [102].  Leave to appeal was granted by the Court of Appeal but the appeal was dismissed in Brisbane City Council v Klinkert [2019] QCA 40; (2019) 236 LGERA 88.

[12] Marriott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910.

[13] Marriott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910 at 926 [74].

[14] Bilalis v Brisbane City Council [2017] QPEC 42; [2017] QPELR 997.

[15] Bilalis v Brisbane City Council [2017] QPEC 42; [2017] QPELR 997 at 1005 [33].

[16] Bilalis v Brisbane City Council [2017] QPEC 42; [2017] QPELR 997 at 1009 [53].

[17] Leach & Ors v Brisbane City Council [2011] QPEC 55, [2011] QPELR 609.

[18] Leach & Ors v Brisbane City Council [2011] QPEC 55, [2011] QPELR 609, 618-9 [35]. 

[19]  Transcript of proceedings, Cheng v Brisbane City Council (Planning and Environment Court of Queensland, 2077 of 23, Kefford DCJ, 20 November 2023) T 1-36, L1-8.

[20]  Transcript of proceedings, Cheng v Brisbane City Council (Planning and Environment Court of Queensland, 2077 of 23, Kefford DCJ, 20 November 2023) T 1-50, L30.

[21]  Joint Report of Heritage Experts: Exhibit 2 p 32. 

Close

Editorial Notes

  • Published Case Name:

    Cheng v Brisbane City Council

  • Shortened Case Name:

    Cheng v Brisbane City Council

  • MNC:

    [2023] QPEC 49

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    21 Nov 2023

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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