Bilalis v Brisbane City Council [2017] QPEC 42 (2017) QPELR 997

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Bilalis v Brisbane City Council [2017] QPEC 42 PARTIES: ANGELOS BILALIS (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 4870 of 2016 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 24 July 2017 DELIVERED AT: Brisbane HEARING DATE: 21 July 2017 JUDGE: Kefford DCJ ORDER: The appeal is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL BUILDING CHARACTER – where the traditional building character was the “timber and tin” character – where houses are located in a street of mixed character – whether the proposed demolition complied with the Traditional building character (demolition) overlay code – whether the demolition of the building would result in meaningful or significant loss of traditional building character – whether the street had no traditional character – whether the house positively contributed to the visual character of the street. LEGISLATION: Planning Act 2016 (Qld), s 311 Sustainable Planning Act 2009, s 313, s 324, s 326, s 461, s 493, s 495 CASES: Guiney v Brisbane City Council [2016] QPELR 575; [2016] QPEC 26, approved Kanesamoorthy v Brisbane City Council [2016] QPELR 784; [2016] QPEC 42, approved -- 1 of 18 -- 2 Ken Drew Town Planning Pty Ltd v Brisbane City Council [2017] QPELR 49; [2016] QPEC 62, considered Kevin McSweeney Pty Ltd v Brisbane City Council [2012] QPELR 295; [2011] QPEC 138, approved Leach v Brisbane City Council [2011] QPELR 609; [2011] QPEC 55, approved Lonie v Brisbane City Council [1998] QPELR 209, approved. Lucas v Brisbane City Council [2015] QPELR 671; [2015] QPEC 25, approved Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45, approved Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223 at 225; [2016] QPEC 3, approved Thurecht & Anor v Brisbane City Council [2015] QPELR 604; [2015] QPEC 19, approved Unterweger v Brisbane City Council [2012] QPELR 335; [2011] QPEC 134, approved COUNSEL: N Loos for the appellant B D Job for the respondent SOLICITORS: McInnes Wilson Lawyers for the appellant Brisbane City Legal Practice for the respondent [1] This appeal is against the decision of the respondent, Brisbane City Council (“Council”) refusing the appellant’s development application seeking a preliminary approval for building work to facilitate demolition of a pre-1947 residential building at 7 Birkbeck Street, Albion. The decision framework [2] The appeal was commenced under s 461 of the now repealed Sustainable Planning Act 2009 (Qld). Pursuant to s 311 of the Planning Act 2016 (Qld), the appeal is to be decided under the provisions of the Sustainable Planning Act 2009. [3] Under s 495, the appeal proceeds by way of hearing anew. [4] The development application was made on 4 October 2016 under Brisbane City Plan 2014 (“City Plan”). -- 2 of 18 -- 3 [5] As the development application was code assessable, it is to be assessed having regard to s 313 of the Sustainable Planning Act 2009. The court must, to the extent relevant, assess the development application against applicable codes. The development application is to be decided in accordance with s 324 and s 326. Pursuant to s 326, a decision must not conflict with City Plan unless, relevantly, there are sufficient grounds to justify the decision despite the conflict. There are no grounds advanced to justify approval. [6] Conflict means “at variance or disagree with”.1 [7] It is for the appellant to establish that the appeal should be allowed and the development application approved.2 Issues to be determined [8] The issues to be determined in this appeal are: (a) whether the subject house is in a street that has no traditional character (acceptable outcome AO5(d)); or (b) whether the subject house is a building which, if demolished, will result in the loss of traditional building character (acceptable outcome AO5(c)); and (c) whether the subject house is a building which does not contribute positively to the visual character of the street (performance outcome PO5(c)); and (d) whether the subject house complies with the purpose of the code, particularly overall outcome (2)(a) and overall outcome (2)(d). [9] Each of performance outcome PO5(c), acceptable outcome AO5(c) and acceptable outcome AO5(d) are alternatives. If any of them are met, then by operation of s 5.3.3(c)(iii) of City Plan, the purpose and overall outcomes are complied with and, in turn, the code is complied with. Although compliance with any one of the requirements of PO5(c), AO5(c) or AO5(d) results in compliance with the code, in 1 Woolworths Ltd v Maryborough City Council (No. 2) [2006] 1 Qd R 273, 286 [23]; [2005] QCA 262; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] 185 LGERA 63, 72 [16]; [2012] QPELR 354; [2011] QCA 358. 2 Sustainable Planning Act 2009, s 493. -- 3 of 18 -- 4 the event of non-compliance, the appellant needs to demonstrate compliance with each of the identified overall outcomes. City Plan 2014 [10] Section 5.3.3 of City Plan provides guidance on the extent to which codes within City Plan are relevant to assessment of code assessable development. It states:3 “(i) development must be assessed against all the applicable codes identified in the assessment criteria column; (ii) … (iii) development that complies with: (A) the purpose and overall outcomes of the code complies with the code; (B) the performance or acceptable outcomes where prescribed complies with the purpose and overall outcomes of the code; (iv) development must have regard to the purposes of any instrument containing an applicable code;” [11] The section also includes a “Note” that confirms that in relation to s 5.3.3(1)(c)(iv) of City Plan, and in regard to s 313(3)(d) of the Sustainable Planning Act 2009, the Strategic framework is considered to be the purpose of the instrument containing an applicable code. [12] The purpose of the Traditional building character (demolition) overlay code is to:4 “(a) Implement the policy direction in the Strategic framework, in particular: (i) Theme 2: Brisbane’s outstanding lifestyle and Element 2.1 — Brisbane’s identity; (ii) Theme 5: Brisbane’s CityShape and Element 5.5 — Brisbane’s Suburban Living Areas. (b) Provide for the assessment of the suitability of building work for the demolition, removal or repositioning of a building or structure if any part of the building or structure was substantially constructed in 1946 or earlier, in the Traditional building character overlay.” [13] The policy direction in the Strategic framework, insofar as it relates to character housing, is evident in the strategic outcomes for Theme 2: Brisbane’s outstanding 3 Appeal Book - Exhibit 1 Tab 8 p 130. 4 Appeal Book - Exhibit 1 Tab 11 p 200 s 8.2.21.2(1). -- 4 of 18 -- 5 lifestyle, which are set out in s 3.4.1 of the Strategic framework in City Plan and include, relevantly: “(b) Brisbane is defined by the visual markers and amenity created by a visually dominant City Centre, concentrated centres along transport corridors, the Brisbane River, major hills and valleys, bushlands and open space, traditional character suburbs, mature urban vegetation and the bay and bayside areas and islands. Brisbane’s neighbourhoods each express their individual identity. (c) Brisbane has locations within the city which have cultural heritage significance to a broad range of groups and individuals. Character housing provides a link with Brisbane’s history and helps to reinforce a strong sense of place and community identity. Brisbane’s character elements and built cultural heritage are appreciated, protected and managed …” (emphasis added) [14] These strategic outcomes are further refined and described in the specific outcomes for Element 2.1 - Brisbane’s identity, addressed in table 3.4.2.1, which include specific outcome SO20. It states that “Brisbane’s distinctive suburban identity is reinforced by its character housing precincts”. [15] The corresponding land use strategies include: “L20.1 Character buildings built in 1946 or before are protected via overlays. L20.2 Development proposals maintain the traditional building character housing that individually and collectively contributes to the distinctive character of the area and streetscape. L20.3 Traditional housing styles and materials, such as timber and tin and masonry construction, are recognised as being important to character areas and are retained ...” [16] For Theme 5, the strategic outcomes refer to Brisbane’s Suburban Living Areas. In them, impacts on local amenity and values are to be carefully considered. They comprise, relevantly, localities identified in overlays, neighbourhood plans and zoning patterns as having particular character or value that are desired to be retained with very little visible change over the life of City Plan. They also include “areas of character housing and commercial character buildings substantially constructed in 1946 or earlier”. -- 5 of 18 -- 6 [17] The purpose of the Traditional building character (demolition) overlay code, it is to be achieved through the overall outcomes, which include:5 “(a) Development protects residential buildings constructed in 1946 or earlier that give the areas in the Traditional building character overlay their traditional character and traditional building character. … (d) Development protects a building constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier.” [18] Performance outcome PO5 and acceptable outcome AO5 state:6 Performance outcomes Acceptable Outcomes 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 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; or (b) an engineering report prepared by a Registered Professional Engineer Queensland which certifies that the building is structurally unsound and not reasonably 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 street that has no traditional character. [19] The “Note” to the Traditional building character (demolition) code indicates that the Traditional building character planning scheme policy provides “guidance” with respect to performance outcomes and acceptable outcomes that relate to traditional character and traditional building character. It makes reference to the following elements, which are said to contribute to “traditional character”:7 (a) traditional building form and roof styles; (b) traditional elements, detailing and materials; 5 Appeal Book - Exhibit 1 Tab 11 p 200 s 8.2.21.2(2). 6 Appeal Book - Exhibit 1 Tab 11 p 202. 7 Appeal Book - Exhibit 1 Tab 12 p 205 s 2.1(1). -- 6 of 18 -- 7 (c) traditional scale; and (d) traditional setting. [20] A lack of consistency in those elements “can”, but does not necessarily, detract from traditional character. The house [21] It is uncontentious that the house: (a) is a pre-1947 residential building situated on a site included in the LMR2 Low medium density residential (two or three storey mix) zone;8 (b) is situated within the Traditional building character overlay in City Plan;9 (c) is a high-set, timber-framed and weatherboard-clad house supported on stumps with a corrugated metal roof comprising a triple gabled roof form facing the Birkbeck Street site frontage;10 and (d) represents traditional building character. The experts agree that it is “entirely consistent” with the timber and tin traditional building character referred to in the Traditional building character planning scheme policy.11 Is the house in a street that has no traditional character? [22] Birkbeck Street in Albion comprises a relatively short streetscape extending from Sandgate Road in the east to Hudson Road in the west and comprising a total of only 11 individual properties with site frontages in Birkbeck Street.12 The street is relatively flat and straight. [23] At its eastern end, Birkbeck Street connects with Sandgate Road at the location of a long established strip of restaurants and shops. [24] At its western end, Birkbeck Street meets Hudson Road. There is a railway line on the western side of, and parallel to, Hudson Road. 8 Joint Report of Heritage Architects – Exhibit 2 p 1 [3]. 9 Joint Report of Heritage Architects – Exhibit 2 p 1 [3]. 10 Joint Report of Heritage Architects – Exhibit 2 p 6 [21]. 11 Joint Report of Heritage Architects – Exhibit 2 p 6 [21]. 12 Joint Report of Heritage Architects – Exhibit 2 p 3 [17]. -- 7 of 18 -- 8 [25] Each end of Birkbeck Street includes one or more heritage sites, each of which is effectively afforded a more stringent degree of demolition protection under City Plan than that afforded to pre-1947 buildings included in the overlay. [26] The heritage sites with frontage to Birkbeck Street include: (a) “Dunaverty”, also known as “Carvarmore”, which is a circa 1887 cottage located at 21 Birkbeck Street that is included on the Queensland Heritage Register; (b) the (former) Albion Public Hall, which is a locally significant heritage place located at 344-346 Sandgate Road; and (c) the Corner Shop and the original baker’s oven, which is a locally significant heritage place located at 366 Sandgate Road.13 [27] In addition to those heritage-listed properties, the subject house and two others on the northeastern side of the street are pre-1947 houses. On the southwestern side of the street there are another two pre-1947 houses.14 [28] The post-1947 development in the street includes: (a) a low rise 1960’s apartment building at 13 Birkbeck Street; (b) a 1970’s dwelling house at 15 Birkbeck Street; (c) a 3 to 4 storey multi-unit dwelling immediately to the east at 366-368 Sandgate Road; and (d) a large (5 storey), modern commercial building at the western end of Birkbeck Street, with a street address of 85 Hudson Road.15 [29] Consequently: (a) on the northern side of Birkbeck Street, there are four pre-1947 houses with traditional building character, one heritage-listed corner store, two unit developments and one post-1947 house; and 13 Joint Report of Heritage Architects – Exhibit 2 p 3 [18]. 14 Joint Report of Heritage Architects – Exhibit 2 p 4 Figures 1 and 2. 15 Joint Report of Heritage Architects – Exhibit 2 p 6 [24.1(a)] and p 7 [25.1(a)]. -- 8 of 18 -- 9 (b) on the southern side, there is a pre-1947 character house, one post-1947 house, a heritage-listed building and a commercial office development. [30] Starting on the southern side of Birkbeck Street (at the Sandgate Road end) and working along, there appears: (a) a suite of shops (including a pedestrian arcade) in the heritage-listed Albion Public Hall; (b) a post-1946 detached dwelling that has been effectively destroyed by fire; (c) a pre-1947 detached dwelling; and (d) a five storey office block. [31] On the northern side of Birkbeck Street, again starting at the Sandgate Road end and working along, there appears: (a) a shop and multi-unit dwelling complex that fronts onto the corner of Sandgate Rd and Birkbeck Street, but which has an extensive frontage to Birkbeck Street; (b) the subject land containing a pre-1947 house; (c) a detached dwelling (pre-1947 house); (d) an 1960’s era block of units, two storeys in height; (e) a 1970’s detached dwelling; (f) a detached dwelling (pre-1947 house); and (g) the heritage-listed detached dwelling (circa 1887). [32] Acceptable outcome AO5(d) raises for consideration whether the demolition is of a building in a street that has no traditional character. [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 -- 9 of 18 -- 10 heritage and traditional character buildings. The following principles emerge from those decisions: (a) 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;16 (b) it is not necessary that the street be “pristine”;17 (c) it is relevant to enquire whether the street in question has been robbed of its traditional character by the extent of redevelopment;18 (d) 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;19 (e) 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;20 (f) 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;21 and (g) 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.22 [34] In the Joint Report of Heritage Architects, Mr Elliott (the heritage expert engaged by the appellant) opined that Birkbeck Street does not have traditional character.23 16 Mariott v Brisbane City Council [2015] QPELR 910, 926 [74]; [2015] QPEC 45. 17 Unterweger v Brisbane City Council [2012] QPELR 335, 338 [10]; [2011] QPEC 134; Lonie v Brisbane City Council [1998] QPELR 209, 211. 18 Unterweger v Brisbane City Council [2012] QPELR 335, 338 [10]; [2011] QPEC 134. 19 Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [29]; [2016] QPEC 42 citing Leach v Brisbane City Council [2011] QPELR 609, [34]; [2011] QPEC 55. 20 Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [30]; [2016] QPEC 42. 21 Guiney v Brisbane City Council [2016] QPELR 575, 582 [30]; [2016] QPEC 26. 22 Guiney v Brisbane City Council [2016] QPELR 575, 583 [33]; [2016] QPEC 26. 23 Joint Report of Heritage Architects – Exhibit 2 p 7 [25.1]. -- 10 of 18 -- 11 During cross-examination, he conceded that the statement should be corrected to read that the street does not have a prevailing traditional character.24 [35] Mr Elliott expressed the view that there is compliance with acceptable outcome AO5(d) as there has been a “significant loss” of traditional character “since 1946”.25 After comparing the 1946 streetscape with its current appearance, Mr Elliott refers to the “diminished representation” being such that pre-1947 houses “within the overlay” now represent approximately 38 per cent of the “original” streetscape and only 27 per cent of the total number of individual properties now extant in the street.26 He also expressed the view that the “perceived strength” of the traditional character streetscape in the street is “questionable” given the exclusion of a pre-1947 house opposite the site from the overlay.27 Mr Elliott also expressed the view that the “substantial depletion” of traditional building character in the street has been balanced by the corresponding introduction of multi-unit dwellings and commercial buildings, ranging from two to five storeys in height, thereby “substantially shifting the prevailing character” of the street away from its single lot density origins. [36] I do not regard Mr Elliott’s approach as appropriate. The proper assessment is of the existing character.28 Whether or not houses are in the overlay does not matter. [37] I do not accept, as was urged by the appellant, that the finding of the court in Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45 at 925 [70] that “traditional building character is nevertheless not a significant, overwhelming or defining part of the character of the street” is equally apt here. Nor do I accept the appellant’s submission that the finding of the court in Ken Drew Town Planning Pty Ltd v Brisbane City Council [2017] QPELR 49; [2016] QPEC 62 at 58 [33] that “the reasonable average visitor would leave this section of Old Cleveland Road with the impression that it is a busy arterial road, with a mixed character, both in terms of uses and architectural style, building scale, size and heritage, but in respect of which the commercial and multiple unit dwellings are the more prominent, by virtue of their size, and stark exposure. Although the presence of remaining Queenslander style houses, particular at the western end near French Street, do provide some sense of 24 T1-30/L39 – T1-31/L21 (Elliott). 25 Joint Report of Heritage Architects – Exhibit 2 p 7 [25.1(a)]. 26 Joint Report of Heritage Architects – Exhibit 2 pp 7 - 8 [25.1(b) and (c)]. 27 Joint Report of Heritage Architects – Exhibit 2 pp 7 - 8 [25.1(b) and (c)]. 28 See, for example, Guiney v Brisbane City Council [2016] QPELR 575, 583 [38]; [2016] QPEC 26. -- 11 of 18 -- 12 traditional character, the average person would not think, of this part of Old Cleveland Road, that this is a “pretty typical old Brisbane Street”” applies squarely to Birkbeck Street. The street has a very different character to that of Old Cleveland Road. It is not an arterial road, but a very short street. [38] The existence of modern and bulky buildings, even ones containing commercial uses such as the five storey office building, do not rob the street of its traditional character. They do not isolate or interrupt the traditional character in the street; rather, the modern buildings, and the buildings used for commercial purposes, bookend the street. I agree with the opinion expressed by Mr Kennedy that a person walking the street would tend to read the five storey office building at the corner as being on Hudson Road.29 That impression is reinforced by the break created by Powell Street, which separates that corner parcel from the balance of the southern side of Birkbeck Street.30 I also accept the opinion of Mr Kennedy that, in the same way, a person would tend to read the buildings at the corner of Sandgate Road as being part of Sandgate Road.31 The large modern buildings are still part of the character of the street, but the fact that one reads them as part of the other streets, to my mind, diminishes the extent to which they overwhelm the traditional character of the street. [39] As one ambles along the short street, looking around and taking in both sides of the street,32 there would be no point, or virtually no point, at which the ambler would not have within view both modern buildings and buildings, such as the subject house, that exhibit traditional character.33 [40] If percentages are applied, of the 12 buildings in the street, there are five pre-1947 houses that represent traditional character and two other heritage buildings that both experts accepted enhance the traditional character of the street.34 Further, as is observed by Mr Kennedy, the pre-1947 houses are intact and are distributed throughout the street.35 29 T1-47/L13-23 (Kennedy). 30 See Joint Report of Heritage Architects – Exhibit 2 p 4 Figure 2. See also Report of Mr Elliott – Exhibit 3 p 11 Figure 16 and Exhibit 7 p 3. 31 T1-47/L13-23 (Kennedy). 32 This is the test applied in Kanesamoorthy v Brisbane City Council [2016] QPELR 784, 794 [31]; [2016] QPEC 42, citing Lonie v Brisbane City Council [1998] QPELR 209. 33 See Exhibit 7. 34 Joint Report of Heritage Architects – Exhibit 2 p 7 [25.2]; T1-32/L1-5 (Elliott). 35 Joint Report of Heritage Architects – Exhibit 2 p 7 [25.2]. -- 12 of 18 -- 13 [41] In the circumstances, I am not satisfied that the appellant has demonstrated compliance with acceptable outcome AO5(d). Will demolition of the house result in the loss of traditional building character? [42] In Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPELR 223; [2016] QPEC 3, Rackemann DCJ observed at 226 [8]: “Insofar as AO5(c) is concerned, the reference to demolition not resulting in the loss of traditional building character should not be approached in absolute terms. In order to satisfy the provision, the loss does not have to be the straw that would break the camel’s back in terms of the retention of any semblance of traditional building character within the street (see Unterweger (supra) at [29]). The relevant loss should be approached on the basis that it is one which is meaningful or significant (see Wallace v Brisbane City Council [2012] QPELR 689; [2012] QPEC 47 at [31]).” (emphasis added) [43] Although the test ought not be regarded as absolute, in determining whether the loss is meaningful or significant, it is equally important not to lose sight of the overall outcomes and the intent of the Strategic framework, which reinforce that character housing is important to the community and should be preserved. [44] As was noted in Lucas v Brisbane City Council [2015] QPELR 671; [2015] QPEC 25 at 679 [41], a stage must eventually be reached whereby successive degradations cause the requisite character to be gone, which itself would mean there would be no loss of character resulting from demolition. However, the provision should not be construed as enabling such an outcome. [45] In assessing the contribution of the house, the following approach was stated in Thurecht & Anor v Brisbane City Council [2015] QPELR 604; [2015] QPEC 19 at 628 [43]: “As to their reliance on the lack of visual prominence of the house, much is made of its position and limited visibility from some points. The argument was, in effect, that the house is hidden and did not contribute to the visual character of Wilden Street. I disagree. The assessment is not to be undertaken from a fixed point, but fluidly, based on the perspective of one moving along the street. It is trite to say that a particular house in most streets may have limited visibility from some points, but not from others. This house can be seen from numerous positions in the street. Indeed, the evidence of both experts was quite similar in this regard: Mr Kennedy gave evidence that the topography of the street was such that the house could be viewed from many parts of the street, while Mr O’Brien gave evidence that the topography made the house quite noticeable from several locations, even that it was prominent. I accept those conclusions. As one moves along the street, it is clear to me -- 13 of 18 -- 14 that the house contributes quite positively to the traditional character of Wilden Street.” [46] As is noted in paragraph [21](c) above, the house is a high-set, timber-framed and weatherboard-clad house, supported on stumps, with a corrugated metal roof comprising a triple gabled roof form facing the Birkbeck Street site frontage.36 [47] The current roof form of the building is similar to that of the subject building apparent on a 1946 aerial photograph of the subject site.37 [48] Views of the subject house from the Birkbeck Street frontage are presently restricted by mature vegetation located within the front building setback of the property. Photographs of the house can give an impression of limited visibility. The difficulty with them is that they are taken from a fixed point. The appreciation of the house is to be based on the perspective of one moving along the street. [49] To aid my understanding of the evidence, I had the benefit of an inspection of the site and the street. I am mindful of the limited purpose of a site inspection and that I must act on evidence. However, the site inspection allowed me to appreciate the different glimpses one gets of the house, through the vegetation, as one moves about. I can appreciate the view expressed by Mr Kennedy that, despite the vegetation, “it is still possible to ascertain the main details of the house”.38 Those details are reproduced in Exhibit 6. They are described by Mr Kennedy as follows:39 “The subject house is a high set ‘timber & tin’ triple gabled bungalow style house typical of Brisbane houses constructed in the early 1930s. In keeping with the bungalow form all the gabled roofs are medium pitch and sheeted with corrugated iron, and the walls of the house, including the front verandah wall and a prominent bay window on the front elevation, are clad with painted weatherboards. The front verandah has been enclosed above the handrail height with timber hopper windows in a sympathetic manner which has retained the verandah’s original form. The front entrance to the house is given prominence by a small gable of the same pitch as the main roof gabbles. The house is raised approximately 2 meters (sic) off the ground on timber and steel posts and the area underneath is enclosed with traditional vertical battens giving the appearance of lightweight support to the upper floor. The form of the subject house is consistent with that shown in the 1936 Detail Plan (Fig 3) and the 1946 aerial photo (Fig 1) and still displays the hallmarks of a 1930’s traditional ‘timber and tin’ Queensland house.” 36 Joint Report of Heritage Architects – Exhibit 2 p 6 [21]. 37 Joint Report of Heritage Architects – Exhibit 2 p 6 [20]. 38 Joint Report of Heritage Architects – Exhibit 7 p 7 [24.2(a)]. 39 Joint Report of Heritage Architects – Exhibit 7 p 7 [24.2(a)]. -- 14 of 18 -- 15 [50] The description is apt and the various elements described are visible as one moves about the street. [51] Mr Kennedy’s opinion is that the demolition of the subject building will result in the loss of traditional building character. He regards the subject building as being in a prominent position and an important component of the traditional character of the street. The house, like the other traditional “timber and tin” houses in Birkbeck Street (at numbers 9, 16, 17 and 21), are: (a) worthy examples of traditional character housing; (b) quite intact; (c) visible in the streetscape; and (d) make a strong contribution to the traditional building character of the street.40 [52] In contrast, Mr Elliott’s opinion that the demolition of the subject house will not result in the loss of traditional building character is based on his view that “the traditional character remaining in both the immediate streetscape of Birkbeck Street and the surrounding area of Albion mapped within the overlay has already been predominantly eroded by the inclusion of post-1947 development”; the southern side of Birkbeck Street is located in the District centre zone and is not part of the traditional building character overlay; and the residential nature of the streetscape has been eroded by the presence of well-established commercial activities at either end of Birkbeck Street.41 [53] I find Mr Elliott’s assessment to be unhelpful. It suffers from the same difficulties as his assessment in Guiney v Brisbane City Council [2016] QPELR 575; [2016] QPEC 26, where the court noted at 583 [38] that 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. [54] I disagree with Mr Kennedy’s assessment of the subject house as having a “prominent position” in the street. It has no greater street frontage than any other property in the street. It is not on a corner. It does not have a larger land area. It does not protrude 40 Joint Report of Heritage Architects – Exhibit 7 p 7 [24.2(b)]. 41 Joint Report of Heritage Architects – Exhibit 7 pp 6 - 7 [24.1]. -- 15 of 18 -- 16 forward of the other houses in the street, nor is it higher than its neighbouring buildings. It does not exhibit any of those features that might cause it to be described as prominent. Nevertheless, I accept the balance of Mr Kennedy’s observations. The photographic evidence supports them.42 [55] Demolition of the building will result in a meaningful, and unacceptable, loss of traditional building character. [56] I am not satisfied that acceptable outcome AO5(c) is met. Does the building contribute positively to the visual character of the street? [57] In Se Ayr v Brisbane City Council [2016] QPELR 223; [2016] QPEC 3, Rackemann DCJ observed at 225 [7]: “Insofar as PO5(c) is concerned, the expression contribute “positively” should be interpreted in the way indicated by Bowskill DCJ in Mariott v Brisbane City Council [2015] QPELR 910; [2015] QPEC 45; namely, whether the contribution is a positive one in that it adds to the visual character of the street rather than being neutral. Further, as her Honour also pointed out, the relevant provision focuses upon the visual character of the street rather than simply upon that part of the street covered by the traditional building overlay. Hence, it is relevant, when considering that provision, to have regard not just to the buildings within the street which represent traditional building character, but other development in the street as well which in this case, includes the multi-unit dwellings.” (emphasis added) [58] The positive contribution is to be to the visual character of the street that is protected by the code.43 [59] In ascertaining the importance of a house to the visual character of the street, the exercise ‘should be approached from the perception of an average person walking along the street and looking about’.44 [60] In Lonie v Brisbane City Council [1998] QPELR 209, Skoien DCJ stated at 212:45 “I thought the evidence of Mr Scott, Mr Kennedy and Mr Ross, gave valuable assistance on the question I have to decide under para. (vii). In a nutshell, it is this: would the average person walking the street and looking about, with a 42 See Exhibit 7 and Report of Mr Elliott – Exhibit 3 pp 8, 10 and 11 Figures 10, 11, 14, 15 and 17. 43 Mariott v Brisbane City Council [2015] QPELR 910, 929 [93]; [2015] QPEC 45. 44 Lucas v Brisbane City Council [2015] QPELR 671, 675 [26]; [2015] QPEC 25 citing Lonie v Brisbane City Council [1998] QPELR 209, 212. See also Kevin McSweeney Pty Ltd v Brisbane City Council [2012] QPELR 295, 305 [64] and 308 [94]; [2011] QPEC 138 and Mariott v Brisbane City Council [2015] QPELR 910, 922 [54]; 2015 QPEC 45. 45 See also Leach v Brisbane City Council [2011] QPELR 609, 619 [36] – [38]; [2011] QPEC 55. -- 16 of 18 -- 17 perception which falls somewhere between that of a Ph. D in Architectural History on the one hand and that of a Philistine on the other, think of Hewitt Street "This is a pretty typical old Brisbane Street”? As I have said, I think he would. Having said that, would that person look at No. 29 and say “And that is the sort of ‘workers cottage’ they built in those days in streets like this”. That person would then undoubtedly note that it was the only workers cottage in the street. Would that person regard No. 29, in those circumstances, as important to the visible character of Hewitt Street? I think he would. That having been said, it seems to me to be immaterial that this person might add, “Pity about the alterations”.” (emphasis added) [61] Mr Elliott’s opinion is that the building does not contribute positively to the visual character of Birkbeck Street because of the overbearing manner in which the adjoining multi-unit dwelling immediately to the east conceals any oblique views of the building from that direction.46 [62] Mr Kennedy’s opinion is that the building contributes positively to the visual character of Birkbeck Street due to its prominent position in the street, as well as its architectural form and intactness.47 He considers that the contribution that it makes would be even greater were the vegetation to be removed.48 [63] Although the views of the house are somewhat restricted as a consequence of the vegetation and the adjoining building, in my opinion the house nevertheless makes a positive contribution to the traditional character in the street. The house is not invisible. One can easily identify it as a pre-1947 house with the features described by Mr Kennedy. It is also readily identifiable as a good, and quite intact, example of such a house.49 The setting of the house, immediately adjacent a modern multi-unit dwelling that is out-of-scale with the traditional character, does not detract from the contribution made by the house – if anything it emphasises it. [64] I am not satisfied that the appellant has demonstrated compliance with acceptable outcome PO5(c). Does the development comply with the purpose of the code? [65] On the proper construction of section 5.3.3 of City Plan, as it was in force when the development application was submitted, the application can comply with the 46 Joint Report of Heritage Architects – Exhibit 7 p 8 [26.1]. 47 Joint Report of Heritage Architects – Exhibit 7 p 8 [26.2]. 48 T1-43/L12-17 (Kennedy). 49 See Exhibit 7. -- 17 of 18 -- 18 Traditional building character (demolition) overlay code by complying with the overall outcomes of the code. [66] The issue for overall outcome (2)(a) is whether the dwelling is such that it “gives the areas in the Traditional building character overlay their traditional character and traditional building character.” The provision deals specifically with the overlay. By reference to the overlay mapping for the street in Figure 4 of the Joint Report of the Heritage Architects, it can be seen that demolition of the house would conflict with the outcome. [67] For overall outcome (2)(d), the question is whether the building “forms an important part of the streetscape established in 1946 or earlier”. I find Mr Kennedy’s evidence about the contribution to the streetscape to be persuasive. As he noted, all five traditional timber and tin houses in the street are worthy examples of traditional character housing, are quite intact, are visible in the streetscape, and make a strong contribution to the traditional building character of the street.50 The subject house is an important component of those five houses. That is reinforced by the inevitability that if it were demolished, the adjoining house to the northwest would be isolated and, as Mr Elliott acknowledged, its demolition prospects would be much better.51 [68] I am not satisfied that the appellant has demonstrated compliance with the overall outcomes. Conclusion [69] For the reasons provided, a decision to approve the proposed development would conflict with City Plan. No grounds have been advanced to justify approval despite such conflicts. In the circumstances, the appeal is dismissed. 50 Joint Report of Heritage Architects – Exhibit 7 p 7 [24.2(b)]. 51 T1-36/L9-19 (Elliott). -- 18 of 18 --