Clark v Brisbane City Council [2025] QPEC 28

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Clark v Brisbane City Council [2025] QPEC 28 PARTIES: CLEIGHTON CLARK (Appellant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 1390/25 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 2 December 2025 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 1 and 2 December 2025 JUDGE: Kefford DCJ ORDER: The appeal is returned to the applications list for review on 4 December 2025. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING – where the building was constructed pre-1947 – where the building is not of “timber and tin” vernacular – where the building is a two- storey masonry building – whether the building has been substantially altered – whether the building does not represent traditional building character – whether the proposed demolition complies with the Traditional building character (demolition) overlay code LEGISLATION: Planning Act 2016 (Qld) ss 43, 45, 59, 60, 264 Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47 Planning and Environment Court Regulation 2017 (Qld) ss 27, 70, sch 22 CASES: Brisbane City Council v Klinkert [2019] QCA 40; (2019) 236 LGERA 88, cited -- 1 of 18 -- 2 Ficca & Ors v Brisbane City Council [2022] QPEC 52, approved Lonie v Brisbane City Council & Ors [1998] QPELR 209, distinguished Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, approved Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPEC 3; [2016] QPELR 223, distinguished COUNSEL: M Batty KC and M Rodgers for the Appellant L I Walker for the Respondent SOLICITORS: Connor O’Meara Solicitors for the Appellant City Legal for the Respondent TABLE OF CONTENTS Introduction .......................................................................................................................... 2 What is the applicable decision framework? ........................................................................ 3 What are the issues to be determined? ................................................................................. 4 What do the applicable assessment benchmarks require? .................................................... 5 What is the nature of the evidence?...................................................................................... 8 What are the key features of the subject building and how has it been altered? .................. 9 What are the key features of the original part of the subject building?............................ 9 How was the subject building altered? ............................................................................. 9 Have the alterations been retained? ................................................................................ 11 What are the fundamental flaws that affect the evidence of Mr Watson?.......................... 12 What is the evidence of Mr Pendergast about the significance of the alterations and traditional building character? ............................................................................................ 15 Has the subject building been substantially altered, and does it represent traditional building character? ............................................................................................................. 17 Conclusion .......................................................................................................................... 18 Introduction [1] This is an appeal against the decision of the respondent, Brisbane City Council (“the Council”) refusing Cleighton Clark’s development application to facilitate the full demolition of a pre-1947 residential building (“the subject building”) at 89A, 91, 93 and 95 Anthony Street, Ascot, more particularly described as Lots 48, 49 and 50 on RP 34458 and Lot 1 on RP 52120 (“the subject land”). -- 2 of 18 -- 3 [2] The subject land has an area of approximately 1,578 square metres. It is comprised of four equally sized and regularly shaped lots that present to Anthony Street in Ascot, proximate to its intersection with Pringle Street. [3] The subject building is a substantial, two-storey masonry dwelling constructed between 1936 and 1939. [4] Mr Clark lodged his development application to demolish the subject building on 31 March 2025 under Brisbane City Plan 2014 (“City Plan”). On 30 April 2025, the Council refused the development application. On 22 May 2025, Mr Clark filed his notice of appeal. What is the applicable decision framework? [5] Under s 43 of the Planning and Environment Court Act 2016 (Qld), subject to s 46, the appeal proceeds by way of hearing anew. The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect. [6] The Court must assess the development application under s 45(3) of the Planning Act 2016 as if it were the assessment manager: s 46(2) of the Planning and Environment Court Act 2016. The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 45(4), 59(3) and 60 of the Planning Act 2016. [7] It is for Mr Clark to establish that the appeal should be allowed: s 45 of the Planning and Environment Court Act 2016. [8] The development application required code assessment. As such, under s 45(3) of the Planning Act 2016, the Court’s assessment of the development application must be carried out only: (a) against the applicable assessment benchmarks in a categorising instrument; and (b) having regard to any matters prescribed by regulation. [9] Sections 45(3)(a) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made. Version 32 of City Plan is such a categorising instrument: s 43 of the Planning Act 2016. [10] Weight can be given to amendments to City Plan: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. It is common ground that there are no relevant amendments. [11] Pursuant to s 45(3) of the Planning Act 2016 and ss 27(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant: (a) the development approval for, and the lawful use of, the premises or adjacent premises; and -- 3 of 18 -- 4 (b) the common material for the development application. [12] 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: s 47 of the Planning and Environment Court Act 2016. The decision must be based on the assessment: s 59(3) of the Planning Act 2016. [13] The Court must approve the development application to the extent it complies with all the assessment benchmarks: s 60(2)(a) of the Planning Act 2016. 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: s 60(2)(d) of the Planning Act 2016. Even if the development does not comply with some of the assessment benchmarks, the Court may decide to approve the application: s 60(2)(b) of the Planning Act 2016. [14] 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 [2018] QPEC 30; [2018] QPELR 941, 957 [102]. Although leave to appeal was granted by the Court of Appeal, the appeal was dismissed in Brisbane City Council v Klinkert [2019] QCA 40; (2019) 236 LGERA 88. [15] In this case, as the development involves demolition, it is common ground that if I find non-compliance with the relevant assessment benchmarks: (a) compliance cannot be achieved by the imposition of development conditions; (b) there is no discretionary reason to approve the proposed development; and (c) the development application should be refused. What are the issues to be determined? [16] The key issue in dispute is whether the proposed development complies with the Traditional building character (demolition) overlay code of City Plan. [17] In that respect, the Council’s reasons for refusal allege non-compliance with the overall outcomes in ss 8.2.21.2 2. a., d. and e., performance outcome PO5 and acceptable outcome AO5. [18] These provisions of City Plan are applicable assessment benchmarks given the subject land is in the Character zone and the Traditional building character overlay. [19] Performance outcome PO5 and acceptable outcome AO5 contain several subparagraphs that are expressed disjunctively, rather than conjunctively. 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. -- 4 of 18 -- 5 [20] Both parties conducted the case on the footing that compliance with any limb of performance outcome PO5 or acceptable outcome AO5 demonstrates compliance with the Traditional building character (demolition) overlay code. [21] The Council contends that the proposed demolition does not comply with any of the subparagraphs in: (a) performance outcome PO5; and (b) acceptable outcome AO5 of the Traditional building character (demolition) overlay code. [22] Mr Clark contends that the proposed demolition should be approved as it complies with acceptable outcome AO5 a. and c. and performance outcome PO5 a. and c, or at least one of those assessment benchmarks. [23] It is common ground that the key issue that will determine the outcome of this case is whether Mr Clark has demonstrated that the subject building: (a) does not represent traditional building character; or (b) has been substantially altered. [24] If Mr Clark establishes either of those facts, the parties agree that the Council’s decision should be set aside and replaced with a decision to approve the proposed demolition subject to lawful conditions. What do the applicable assessment benchmarks require? [25] Performance outcome PO5 and acceptable outcome AO5 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 -- 5 of 18 -- 6 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 those parts of the assessment benchmarks in issue) [26] There is a dispute between the parties about the approach to determining whether the subject building has been substantially altered for the purpose of acceptable outcome AO5 a. of the Traditional building character (demolition) overlay code. [27] Mr Clark cautions about adopting an approach that involves reading words into the acceptable outcome or otherwise reading it as though it requires demonstration that the proposed demolition involves a building that has been substantially altered and does not have the appearance of being constructed in 1946 or earlier. [28] The Council submits that the proper approach to that provision was identified by His Honour Judge Rackemann in Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPEC 3; [2016] QPELR 223. That case involved an assessment of a proposed demolition of a pre-1947 house against performance outcome PO5 and acceptable outcome AO5 of the Traditional building character (demolition) overlay code in City Plan. His Honour found at 225: “[5] Insofar as PO5(a) is concerned and in particular the corresponding acceptable outcome AO5(a), it was conceded that the building does have the appearance of being constructed in 1946 or earlier, but it was submitted that the building has been substantially altered and does not represent traditional building character, at least traditional building character of a kind which is sought to be protected within the applicable zone. [6] As was pointed out in Unterweger v Brisbane City Council ([2012] QPELR 335; [2011] QPEC 134 at [15], the expression substantially altered, in the acceptable outcome, should be viewed in its context as addressing a performance criterion which relates to whether the building represents traditional building character. And indeed for present purposes, whether it represents traditional building character of a kind which is sought to be protected within the applicable zone.” [29] The performance outcome and acceptable outcome considered by His Honour Judge Rackemann are in different terms to the assessment benchmarks against which I am to assess the proposed demolition of the subject building. -- 6 of 18 -- 7 [30] As is recorded by His Honour Judge Rackemann, the provisions considered by him state: “PO5 Development involves a building which: (a) does not represent traditional building character; … (c) does not contribute positively to the visual character of the street. AO5 Development involves a building which: (a) has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; … (c) if demolished, will not result in the loss of traditional building character. [31] Although subparagraph a. of performance outcome PO5 and subparagraph a. of acceptable outcome AO5 of the Traditional building character (demolition) overlay code are in the same terms: (a) there has been a material change to subparagraph c. of performance outcome PO5; and (b) the structure of the provisions have changed, with acceptable outcome AO5 now containing four subparagraphs, not three. [32] In construing acceptable outcome AO5(a), His Honour Judge Rackemann appears to have assumed there was a correlation between the respective subparagraphs and considered the provision in the context of performance outcome PO5(a) alone. I have reservations about the appropriateness of such an approach. His Honour did not explain the basis for his approach by reference to recognised statutory construction principles. [33] Nevertheless, assuming His Honour’s observation is appropriate, it does not assist me in this case. The content and structure of the provisions have changed. I am not prepared to simply assume that the only relevant context in construing paragraph a. of acceptable outcome AO5 the Traditional building character (demolition) overlay code in version 32 of City Plan is that provided by subparagraph a. of performance outcome PO5. [34] That said, as will become apparent, it is unnecessary to determine the dispute between the parties on this issue to determine the case. [35] 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. -- 7 of 18 -- 8 [36] The purpose of the Traditional building character planning scheme policy is to provide guidance. It does not provide a definition of traditional building character. [37] Although care must be taken when relying on statements of principle in cases that relate to differently expressed planning schemes, I consider that the observations of His Honour Senior Judge Skoien in Razia Developments Pty Ltd v Brisbane City Council [2005] QPELR 205, at 208 [25] to be apposite. His Honour said: “I accept the submission of Mr Job, for the Council that while the explanation of the term “traditional building character” in s.4 of the Code and the various elements of that explanation may be seen as a useful guide, it is only an explanation. It is not, and does not purport to be, a definition. The explanation speaks in generalities (see the use of “predominant” and “generally” referred to in para. [21](b) above). If it had been intended to be used as an all-encompassing definition, the term would have been included amongst the City Plan's definitions in Ch. 3 and would have been drafted in accordance with typical planning scheme definitions which require the presence of various elements to qualify as falling within the particular description. I do not read the Code as suggesting that “traditional building character” denotes some type of prototype from which only minor deviations of style are permitted. To accept that would be to accept that architects and builders of the period were devoid of flair, artistry, experimentation and individuality.” [38] Those observations are apposite for the guidance provided by the Traditional building character planning scheme policy in its present form. What is the nature of the evidence? [39] I have the benefit of various forms of evidence, including: (a) expert evidence from Mr Luke Pendergast and Mr Andrew Watson, the heritage architects retained by Mr Clark and the Council respectively, expressed in: (i) the Character Assessment Report prepared by Mr Pendergast, which forms part of the common material for the development application; (ii) individual statements and response reports from both experts; (iii) oral testimony from both experts; (b) historical photographs, aerial photographs and artists’ impressions of the subject building; (c) plans, maps and other documentary evidence about the subject building and the alterations to it, including original construction drawings and the building approvals authorising alterations to the subject building; (d) recent photographs of the subject building; and (e) publications about styles of architecture in Australia prevalent in Brisbane, and more generally in Australia, before 1947 that were referenced and relied on by the heritage architects. -- 8 of 18 -- 9 [40] Although it is not evidence, my appreciation of the evidence was assisted by a site inspection undertaken on the first day of the hearing. What are the key features of the subject building and how has it been altered? [41] In assessing whether the subject building has been substantially altered, I was greatly assisted by the original construction drawings and the subsequent building approvals that are attached to Mr Pendergast’s Character Assessment Report. There is no suggestion that their contents are inaccurate. The documents appear to be sourced from the Council. As such, if they were inaccurate, I would have expected the Council to take issue with their accuracy: see s 264 of the Planning Act 2016 and s 70 and sch 22 of the Planning Regulation. It did not. To the contrary, the Council confirmed that it accepts the veracity of the documents. The details in the plans accord with the available historical photographs and sketches of the subject building: see, for example, Exhibit 5 p 12 and Exhibit 13 p 12. [42] With reference to the documents attached to Mr Pendergast’s Character Assessment Report, the experts each identify the key features of the subject building’s original form and the nature and extent of alterations to it since 1947. Mr Watson’s report also contains many photographs that show the present appearance of the alterations, which I found to be of assistance. [43] Ultimately, although the experts disagreed about the significance of the alterations, there was no disagreement between the experts about the nature and extent of the alterations. I accept their evidence in that respect. It accords with my own independent review of the original construction drawings, the building approvals authorising alterations to the subject building and the photographs of the subject building. What are the key features of the original part of the subject building? [44] The original part of the subject building was erected between 1936 and 1939. It was a two-storey masonry building comprised of brick walls and a tiled roof. The front verandah on the ground floor was open. On the upper floor, the sleep-out was enclosed with timber casement windows to the front and side facades of the projecting sleep-out bay. The original attached garage on the right-hand side of the subject building had a flat roof. There was a timber pergola over the rear portion of the garage with an integrated “flower box” over the street-facing parapet. How was the subject building altered? [45] In 1964, the original flat roof over the attached garage was removed and replaced with a habitable space finished with a terracotta-tiled hipped roof. [46] In 1993, the Council approved alterations to the interior and exterior of the subject building. The alterations were undertaken around that time. The nature and extent of the exterior alterations impact its visual presentation to the street. I will detail them now. [47] The sleep-out enclosure on the upper floor was removed and replaced with an open verandah. This was achieved by removing windows in the front sleep-out and demolishing the brick columns and other external brickwork that comprised a brick -- 9 of 18 -- 10 balustrade on the upper level of the front façade. The open verandah was encircled by wrought iron balcony railings that extended down to the floor of the open verandah. A Juliet balcony was added to the upper floor window on the north-east corner of the façade. [48] The brick balustrade of the upper floor south-east corner deck was removed and replaced with an ornate metal balustrade. [49] In addition, many of the windows and door openings on the street-facing façade were altered and the windows were replaced. [50] On the ground floor, the replacement work involved: (a) removing two existing windows between the main living room and the front verandah, removing brickwork underneath the original window openings to expand the opening down to floor level, and installing double-hung French windows; (b) replacing the bay window on the south-east corner with double-hung French windows within the original wall opening; and (c) removing brickwork to enlarge the original opening for the front door, removing the original door and sidelights and replacing them with a wider assembly of front door and sidelights. [51] On the upper floor, the replacement work involved: (a) removing the south-east corner and north-east corner windows, removing brickwork underneath the original window openings to expand the openings down to floor level, and installing double-hung French windows to the north- east corner and French doors to the south-east corner; (b) replacing the two original double doors that led to the sleep-out with French doors; and (c) filling in two door openings, including the original door opening from the main bedroom into the sleep-out. [52] Only one original pair of windows was retained in the street-facing façade. The pair is located on the ground floor. [53] The style of the replacement windows and doors were different to the style of the original windows. Although the replacement windows and doors were timber and had a similar sash and beading thickness, they were of a different appearance due to their multi-paned glazing pattern and greater vertical proportions. [54] In addition, although the original windows and window hoods were retained along the side and rear of the subject building, those on the street-facing façade were altered. I accept the evidence of Mr Watson that they were enlarged and thickened in height and profile. As a result, the window hoods on the front façade appear different to the original window hoods. [55] Finally, the alterations in 1993 added many decorative details, including fluted columns, dentils, cornices, pilasters, keystones, arches, and pediments over door -- 10 of 18 -- 11 openings. The experts agree that the decorative mouldings are likely to be constructed of polystyrene or some other non-traditional material. [56] Multiple fluted circular columns were added to the upper floor. [57] The mouldings were added to: (a) the architraves of the ground floor openings to the living room and the main entry; (b) the upper floor verandah cornice; (c) the upper floor north-east windowsill and included dentils and keystone motif; (d) the location of the altered window hoods on the front façade and the northern façade bedroom window; and (e) the main façade of the attached garage and included cornice mouldings and dentils. Have the alterations been retained? [58] Each of the alterations to which I have just referred have been retained and are visible on the street-facing façade of the subject building. [59] In his individual report, Exhibit 5, Mr Pendergast provides several figures that assist in understanding the nature and extent of the alterations to the street-fronting façade of the subject building. They include: (a) Figure 1, which comprises sketches prepared by Mr Pendergast that, apart from missing the chimney, indicate: (i) the likely appearance of the original street-facing façade of the subject building; and (ii) the present appearance of the street-facing façade; (b) Figure 2, which is a press sketch of the subject building published in the Courier Mail on 13 October 1936 depicting the subject building as originally conceived by the architect; and (c) Figure 3, which is a contemporary photograph of the subject building taken from a similar angle as the sketch in Figure 2. [60] During his oral testimony, Mr Watson accepted that these figures provide a sound basis for: (a) appreciating the nature and extent of the alterations; and (b) assessing and determining whether the alterations are substantial for the purpose of subparagraph a. of acceptable outcome AO5 of the Traditional building character (demolition) overlay code. [61] The appearance of the subject building’s street-facing façade is also depicted in a photograph that was provided with the 1993 building application documents. The photograph appears on a drawing titled “Elevational Treatment”. On that drawing, the photograph appears above the descriptor “existing façade” and is juxtaposed with -- 11 of 18 -- 12 a sketch that is described as “proposed façade”: Exhibit 9 p 56. The drawing contains a stamp indicating that the elevations were approved as part of the building approval in February 1993. The sketch of the proposed façade accords with that in Figure 1 of Exhibit 5. The juxtaposition of the photograph and sketch also assist in my assessment of compliance with subparagraph a. of acceptable outcome AO5 of the Traditional building character (demolition) overlay code. [62] There is common ground between the experts about the nature and extent of the alterations to the subject building. However, the experts disagree about the significance of the alterations to the assessment of the proposed demolition against performance outcome PO5 and acceptable outcome AO5 of the Traditional building character (demolition) overlay code. [63] I now turn to consider that issue. In doing so, it is convenient to address the evidence of Mr Watson first as, to my mind, his evidence is affected by several fundamental flaws and can be readily discarded. What are the fundamental flaws that affect the evidence of Mr Watson? [64] In his individual report, Exhibit 13, Mr Watson opines that: (a) the changes to the subject building are not substantial and the subject building retains the appearance of being constructed in 1946 or earlier; (b) the building demonstrates traditional building character and, as such, its demolition would result in the loss of traditional building character in the section of the streetscape of Anthony Street in which it appears; (c) the subject building has and represents traditional building character; and (d) the subject building contributes to the traditional building character in the section of Antony Street that is within the Traditional building character overlay. [65] There are four fundamental propositions that underpin Mr Watson’s opinions. [66] First, Mr Watson’s assessment of the impact of the addition of the decorative embellishments to the street-facing façade is based on his view that they are: (a) “a cosmetic addition to a small part of the aggregate area of the front façade”: Exhibit 13 p 39; (b) “unnecessary and unfortunate, but also minor physical additions”: Exhibit 13 p 39; (c) “a small set of elements added to the building with minimal visual long- distance impact on the understanding of the subject house’s streetscape presence”; and (d) in “isolated locations”: Exhibit 13 p 39. [67] During cross-examination, Mr Watson confirmed that his observations related to the collective effect of the decorative embellishments comprised of non-traditional material. He acknowledged that his assessment of traditional building character was based on those observations to which I have just referred. -- 12 of 18 -- 13 [68] Mr Watson’s views are not supported by his photographic evidence. The photographs provided by Mr Watson, and the pink highlighting applied by him to indicate the extent of the decorative embellishments, demonstrate that: (a) the decorative embellishments comprise a substantial part of the front façade, and are visible and easily discernible from the street; and (b) to the extent that the subject building is not obscured by its elevated setback, front fence and extensive landscaping, the decorative embellishments comprise a substantial part of the visible portion of the subject building. [69] For this reason alone, I do not find the evidence of Mr Watson persuasive. Nevertheless, it is helpful to address the remaining fundamental propositions underpinning Mr Watson’s opinions given that the difference in his approach, as compared to that of Mr Pendergast, informs the Council’s case for refusal. [70] The second fundamental proposition relates to Mr Watson’s characterisation of the subject building as part of a “derivative class” of pre-1947 buildings. [71] At paragraph 7.26 of his report, Mr Watson lists 22 attributes that he says are common to the “derivative class” style and helps one identify buildings as forming part of the class and as inter-war buildings: Exhibit 13 p 17. At paragraph 7.39 of his report, Mr Watson records 18 of the listed attributes that he says are present in the subject building: Exhibit 13 p 24. [72] During his oral testimony, Mr Watson was questioned at length about the approach he adopted to identify the “common attributes”. To the extent that it was not already readily apparent from the lists of attributes, Mr Watson’s oral testimony confirmed that the listed attributes are common to many buildings, including modern residential buildings in Brisbane. The lists include: (a) a large house on large property; (b) a design that has a presence in the streetscape; (c) a high quality of construction; (d) houses that require a certain level of wealth to afford; (e) masonry construction of a deep red or brown face brick; (f) generous roof eaves overhangs for shading; (g) asymmetry in building form; (h) masonry columns and arches; (i) prominent entryways; (j) symmetrical or “balanced” window opening; and (k) an attached garage to the side of the building. [73] Mr Watson does not explain, in a cogent way, how any of those items, or any of the other items in his lists, assist one to identify a building as representing traditional building character or having an appearance of traditional building character. The only items on the list that potentially provide a pre-1947 appearance are terracotta -- 13 of 18 -- 14 Marseilles roof tiles and a masonry chimney. The balance of the items are architectural features of modern houses houses – not just pre-1947 houses. [74] The difficulty with Mr Watson’s lists stems from a flawed approach in producing the lists. As was revealed during his oral testimony, Mr Watson did not produce the list based on recognised architectural attributes that define or indicate a building to be of an identifiable style or class. Rather, despite knowing the criteria for listing a heritage building does not correlate with traditional building character, Mr Watson formed his list by: (a) identifying pre-1947 masonry buildings that are on the State heritage register or Brisbane’s local heritage register, and which are described by someone else in the heritage citation as: (i) Georgian Revival; or (ii) Old English; or (iii) Stripped Classical; or (iv) Mediterranean; and (b) considering photographs of those buildings to produce a list of attributes that are common to the differing array of styles evident in the photographs but without reference to architecturally recognised style indicators for the building types. [75] I have serious reservations about whether the resultant opinion is admissible as expert opinion evidence. The exercise appears to involve little more than finding similarities in the photographed houses. There is no apparent application of architectural expertise in the exercise. During his oral evidence, Mr Watson agreed that the approach could fairly be characterised as producing a list of attributes that are common to houses from a bundle of photographs. Mr Watson accepted that there was no apparent link between his exercise and attributes that define traditional building character. [76] As was explained by Mr Pendergast in his response report, Mr Watson’s approach is to equate generic attributes of a house to distinctiveness that demonstrates traditional building character. I accept the evidence of Mr Pendergast that demonstration of the presence of a handful of generic attributes that are common architectural features of any house does not demonstrate that a building represents traditional building character under the Traditional building character (demolition) overlay code. [77] The third fundamental proposition that underpins Mr Watson opinions is that the alterations replicate traditional building character. Throughout his report Mr Watson emphasises that the alterations comprise elements and materials that are not uncommon in other pre-1947 buildings in Brisbane. [78] That approach fails to acknowledge that: (a) an altered element (sympathetic or otherwise) is not traditional building character; and (b) an altered building with a replica original façade could readily be considered to be a building that is substantially altered. -- 14 of 18 -- 15 [79] In addition, in his response report, Mr Pendergast says that Mr Watson’s comparisons are predominantly to buildings that are exemplars of buildings with heritage significance. Mr Pendergast explains that heritage significance and traditional building character are not interchangeable. They are two distinct regimes under City Plan that are designed to serve different planning purposes. I agree. [80] Consequently, Mr Watson’s approach of comparing the current presentation of the post-1947 alterations on the subject building to other pre-1947 buildings is unhelpful. In this case, the assessment of the proposed demolition against the Traditional building character (demolition) overlay code does not call for: (a) a comparison to other buildings; or (b) consideration of whether alterations to a pre-1947 building replicate pre-1947 traditional building character elements, materials or form. [81] the Traditional building character (demolition) overlay code calls for an assessment of the subject building in its present state to determine whether, viewed as a whole with the alterations, the subject building that represents traditional building character. [82] The fourth fundamental proposition that underpins Mr Watson’s opinion is informed by his view that the alterations are complementary to the subject building. For that reason, Mr Watson says the alterations do not create ambiguity or obscure the understanding of the subject building’s traditional building character. In his assessment, Mr Watson also proffers opinions about the likely reasons for the alterations. [83] The Traditional building character (demolition) overlay code does not call for consideration of the merit of the alterations, nor the reason for them. [84] The impact of changes on the subject building’s traditional building character is a question of fact and degree to be determined by reference to the alterations to the subject building itself. [85] For the reasons provided, I do not find Mr Watson’s opinions persuasive. I reject his opinions that the subject building has not been substantially altered and that it represents traditional building character. [86] That then begs the question, what does the other evidence demonstrate? What is the evidence of Mr Pendergast about the significance of the alterations and traditional building character? [87] Mr Pendergast opines that, as originally constructed, the architectural style of the subject building is not readily categorised. He says it may be appropriately described as a two-storey, detached dwelling exhibiting original characteristics influenced by the Interwar Stripped Classical style. [88] Mr Pendergast explains that the Interwar Stripped Classical style was popular in Australia between the 1910s and 1940s. It was a modernised and simplified interpretation of classical architecture, influenced by art deco, modernism, and beaux- arts principles. It retained the grandeur and symmetry of traditional classical design but stripped away excessive ornamentation, focussing instead on strong vertical or -- 15 of 18 -- 16 horizontal lines. Classical elements such as columns and pilasters were reduced to geometric forms, often appearing as simple vertical or horizontal bands rather than fully detailed orders. Ornamentation was minimal – usually limited to low-relief carvings or stylised motifs. [89] According to Mr Pendergast, buildings in the Interwar Stripped Classical style were typically monumental in scale, constructed from smooth stone, concrete or brick, and conveyed a sense of strength and civic authority. [90] Mr Pendergast acknowledges that during the interwar period, masonry residential construction in Brisbane encompassed a range of derivative styles including Spanish Mission, Mediterranean, Georgian, English, Kentish gable and Functionalist. He opines that, although those styles are not considered vernacular, they contribute to the pre-war streetscape and, when intact, are an integral part of pre-1947 traditional building character and a traditional character streetscape. [91] That said, Mr Pendergast explains that buildings of the Interwar Stripped Classical style are susceptible to losing their traditional building character when altered because of the restrained nature of that style of building. He says the architectural integrity of the style depends on the careful preservation of original materials, clean forms, and symmetrical compositions. In Mr Pendergast’s view, modifications can quickly erode the distinctive character of buildings of the Interwar Stripped Classical style. [92] According to Mr Pendergast, the original design, which remained largely intact until the 1993 alterations, was avant-garde for its time. It reflected a period when Brisbane architects began transitioning away from the traditional “timber and tin” domestic construction. Before World War II, masonry construction with tiled rooves was financially prohibitive for most homeowners. As such, that type of dwelling was more prevalent in prominent locations such as along the Brisbane River at Hawthorne and Bulimba and on the ridgelines of Coorparoo, Clayfield and Ascot. [93] Regardless of whether the subject building in its original form represented traditional building character, Mr Pendergast opines that the character of the subject building has changed substantially over time and is now ambiguous. He says that the 1993 alterations substantially altered the street-facing elevation of the subject building. Mr Pendergast opines that the subject building no longer represents traditional building character if it ever did. [94] Mr Pendergast explains that the alterations obscure or replace the subject building’s original 1930s features, including the flat-roofed garage element, the enclosed sleep- out, and original window and door proportions. The only elements of the subject building that remain intact, as viewed the Anthony Street footpath or other locations external to the subject land, are its original footprint, portions of the brickwork of the exterior walls, the rendered horizontal banding at window head height and the terracotta-tiled roof over the main portion of the subject building. [95] Mr Pendergast says that the visually dominant elements that are observable from the street are those that were introduced as part of the 1993 alterations. They are decorative in character and many of them are constructed from non-traditional material, likely polystyrene. -- 16 of 18 -- 17 [96] In Mr Pendergast’s opinion, the highly visible 1990s additions overwhelm the remaining original elements and result in a façade that reads as a late-20th century reinterpretation of an earlier house. He says the additions severely compromise the stylistic coherence of the subject building, which no longer presents as either “timber and tin” vernacular or as a recognisable interwar form of another style. In Mr Pendergast’s view, the original elements that remain do not form a cohesive architectural expression that allows the subject building to be clearly identified within Brisbane’s traditional building character framework. [97] For those reasons, Mr Pendergast opines that, to the limited extent that the subject building retains any pre-1947 traditional building character (assuming it had any), it is not readily appreciable within the Anthony Street streetscape. He says that the subject building’s elevated siting about the footpath and its 18-metre setback from the front boundary obscure the visibility of any pre-1947 traditional building character. The high, solid front fence and mature vegetation further obscure the visibility of original elements. [98] Mr Pendergast explains that the streetscape presentation is that of a two-storey masonry residence with an asymmetrical composition. The principal elevation is dominated by a projecting two-storey balcony above a recessed porch. An uncovered deck extends from the southern side of the balcony to the south-east corner of the building, where there is a freestanding fluted column as a decorative element. Beneath the deck, the ground floor footprint projects forward and incorporates a contemporary bay window that projects even further forward. According to Mr Pendergast, the result is a layered and irregular façade that does not have the appearance of traditional building character. Has the subject building been substantially altered, and does it represent traditional building character? [99] I have carefully reviewed the original construction drawings, the historical photographs and artists’ impressions of the original building, the building approvals authorising alterations to the subject building, and recent photographs of the subject building. The exercise was greatly assisted by: (a) Figures 1, 2 and 3 in Mr Pendergast’s individual report, Exhibit 5; and (b) the drawing titled “Elevational Treatment” that forms part of the 1993 building approval. [100] My review of all those documents informs my assessment of the character of the subject building, and the impact of the alterations to it. [101] In undertaking my assessment of the significance of architectural elements that inform the appearance of the subject building, I was assisted by the expert evidence of Mr Pendergast regarding pre-war and inter-war architecture to which I have already referred. [102] I reject the Council’s submission that the required assessment is to be undertaken from the point of view of an average person walking along the street and looking about. In support of this submission, the Council cites an observation to that effect made by His Honour Senior Judge Skoien in Lonie v Brisbane City Council & Ors [1998] QPELR 209 at 212. In that case, His Honour was assessing an application to -- 17 of 18 -- 18 demolish a pre-1947 house in Brisbane. The assessment was undertaken in a planning context where the relevant test was whether the existing building: “is important to the visual character and amenity of the streetscape and its removal or demolition would significantly diminish the visual character of the local streetscape” [103] In more recent years, the Council has amended City Plan to change the relevant test from one that involves an assessment of the impact on the visual character of the street to a test that requires consideration of traditional building character. [104] In Ficca & Ors v Brisbane City Council [2022] QPEC 52, Her Honour Judge Muir observed that, without assistance, the average person would not be able to appreciate whether a pre-1947 building that is not of “timber and tin” vernacular represents traditional building character. [105] On my assessment, the alterations substantially change the appearance of the subject building in a way that is detrimental to its appearance as a building with traditional building character. I accept the evidence of Mr Pendergast in this regard. His opinions were supported by rational and cogent explanations, and they align with my own assessment. [106] In the circumstances, I am satisfied that the subject building: (a) does not represent traditional building character; (b) does not contribute to the traditional building character of that part of the street within the Traditional building character overlay; (c) has been substantially altered to the extent that it does not have the appearance of being constructed in 1946 or earlier; and (d) if demolished, will not result in the loss of traditional building character. [107] I am satisfied that the proposed demolition of the subject building complies with performance outcome PO5 and acceptable outcome AO5 of the Traditional building character (demolition) overlay code of City Plan. [108] For completeness, I have also considered the overall outcomes in ss 8.2.2.1 2. a., d. and e. of the Traditional building character (demolition) overlay code. The evidence persuades me that those overall outcomes are also satisfied. Conclusion [109] Mr Clark has discharged the onus. [110] In due course, the Council’s decision will be set aside and replaced with a decision to approve the development application subject to conditions. To facilitate the preparation of a suite of conditions, I will return the appeal to the applications list for review. The appeal will remain on that list unless and until a dispute arises about conditions of approval. -- 18 of 18 --