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

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Affram Pty Ltd v Brisbane City Council [2010] QPEC 47 PARTIES: AFFRAM PTY LTD ACN 009 940 818 (Appellant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 116/09 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 31 May 2010 DELIVERED AT: Brisbane HEARING DATE: 10, 11, 12, 13 November and 14 December 2009 JUDGE: Andrews SC, DCJ ORDER: Appeal allowed CATCHWORDS: PLANNING AND ENVIRONMENT – DEMOLITION CODE – DEMOLITION CONTROL PRECINCT – whether demolition will result in the loss of traditional “timber and tin” building character PLANNING AND ENVIRONMENT – DEMOLITION CODE – DEMOLITION CONTROL PRECINCT- whether building does not contribute positively to the visual character of the street PLANNING AND ENVIRONMENT – DEMOLITION CODE – DEMOLITION CONTROL PRECINCT – whether building built prior to 1900 – where evidence that building may have been built prior to or after 1900 – whether onus of proof of building date on appellant or respondent COUNSEL: Fynes-Clinton for the appellant T Trotter for the respondent SOLICITORS: McCullough Robertson for the appellant Brisbane City Legal Practice for the respondent -- 1 of 16 -- 2 Nature of Proceeding [1] This is an appeal against the refusal by the respondent council of a development application by the appellant for the demolition of a house within a Demolition Control Precinct. [2] If the house was built prior to 1900 it may not be demolished if it is reasonably capable of being made structurally sound. If built in or after 1900 permission to demolish is more easily obtained. There is an issue as to the party which bears the onus of proof of its age. If it was built in or after 1900 other issues arise: Will demolition result in the loss of “traditional ‘timber and tin’ building character” in the precinct? Has the house been substantially altered? Does the house contribute positively to the visual character of the street? The House [3] Built before 1910, a core of the current house was then the core of an attractive, large, timber single level dwelling on stumps. It had a name and a 19th century, middle to upper middle class style with iron roofs made interesting by hips and very uncommon stubby, conical turrets over bay windows opening onto its wide open verandahs. The verandahs had a separate roof. It had a semi attached kitchen at the rear with its own roof and chimney. The original house can be contrasted with the style of later, more common and smaller workers cottages built from about 1915. In the century since its construction the semi attached kitchen at the rear was demolished, the roofed core was moved from a corner block in Palmer Street to the site at 44 Palmer Street and restumped with its single level set at about street level. In the move it was reoriented to the street. Before the Second World War it underwent three conversions resulting in four flats. Three flats are at street level. The internal conversion to flats has been undertaken in a very heavy handed way, removing a large proportion of the internal fabric of the original house and possibly adding a section at the rear. Its former verandahs at front and sides are now incorporated into the flats and hidden from external view by asbestos cement sheets with casement windows. Below street level, the fourth flat was created by a concrete slab floor and asbestos sheet walls. The street level sheeting hides or replaces many original external elements of the house including the timber walls within the verandahs, some eaves, sunhoods, and lattice screens. It has undergone other alterations. The upper roof with conical turrets and the lower separate roof over the former verandahs each remain. A lean-to carport was built on one side. The current house has become structurally unsound, uninhabited and so run down as to be unsuitable for habitation. Aesthetics and dilapidation aside, its asbestos sheeting, and its old lead paint would trouble any reasonable occupant or lessor. To a passer- by, its size and the interesting lines and shapes of its iron roofs particularly viewed from west of the north-western corner clearly reveal that the house formerly had some grandeur and formerly was of a traditional timber and tin building character. That passer-by now looking below the roofs for interesting original features would see a box whose visible sides are mostly asbestos sheeting. If interesting original features remain of the original façade below roof level, those original features are mostly concealed behind asbestos sheeting. Site Description and Position [4] The house is located at 44 Palmer Street, Windsor (“the site”). The site is on the southern side of Palmer Street. It is rectangular with its long access running north- -- 2 of 16 -- 3 south. The site is 957 m2 with a frontage of approximately a 24 m to Palmer Street. The site falls by about 5 m from the north west corner to the south east. The site is in a “Low-medium Density Residential Area”. Statutory Context [5] The house is within the Demolition Control Precinct (“DCP”) and the Demolition Code 1 (“the Code”) applies to the application for demolition. [6] It is undisputed that the application was made on about 17 July 2008 and is a code assessable application, that it must be decided pursuant to s 3.5.13 of the Integrated Planning Act (“IPA”) and that the only applicable code is the Code. If it complies with the Code, the application must be approved. [7] The Code is within the Brisbane City Plan 2000 – Volume 1 within Chapter 5. Chapter 5 provides, so far as is relevant to the issues between the parties: “1 Introduction This chapter provides details of Codes used in assessment. The Codes give guidance on specific areas of development that apply to different Areas or types of development … 1.1 How to use the Codes … Performance Criteria and Acceptable Solutions ... For code assessment a proposal that complies with all Acceptable Solutions will be approved. … The Performance Criteria are in the left hand column of the Code table. They provide a statement of the outcome that the Acceptable Solution must achieve. A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met. … For Code Assessment The Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will 1 In Brisbane City Plan 2000 Chapter 5 -- 3 of 16 -- 4 be refused where it cannot be conditioned to mitigate impacts … Demolition Code 1 Application This Code will apply in assessing building work for the demolition … of a building where: • on a site in the Demolition Control Precinct where any part of the residential building was substantially constructed in or prior to the end of 1946, or • where the building was substantially erected prior to 1 January 1900 3 Purpose The purpose of this Code is to: • protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity … • ensure the preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946 • ensure the contribution of houses constructed prior to the end of 1946 that reflect design styles and materials other than ‘timber and tin’ architecture is recognised and retained in the Lower Density Residential Area and Character Residential Area … • In conjunction with the Residential Design-Character Code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and development in those precincts complements the houses constructed in or prior to the end of 1946 … 4 Assessment Guidance – an explanation of traditional building character Street Context The traditional scale of a street was first established by its subdivision pattern of 16, 24 or 32 perch lots, with 10, 15 or 20 m frontages respectively. This pattern was reinforced by the traditional building form of a single level house elevated on -- 4 of 16 -- 5 stumps. This created a reasonably uniform scale, accentuated by consistent stepping of the levels of adjoining buildings in Brisbane’s hilly suburbs and by uniform spacing between houses in the flatter suburbs. Building form and scale The predominant traditional building form of pre-1946 housing is a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandahs. The roof forms are medium pitched pyramids, hips or gables. This style is often referred to generically as the Queensland vernacular. Other traditional building forms also exist, exhibiting overseas architectural influences on Brisbane’s residential design. These building forms occurred primarily during the inter war period. These styles include, but are not limited to, Art Deco, Spanish Mission, Californian Bungalow and Georgian. Materials and details The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens and batten panels that cast shadows and provide three-dimensional effects. Character is also derived from the relatively limited range of materials available at the time of construction. This provided a unifying theme of painted timber walls and corrugated steel roofing. These lightweight external elements reduce building bulk and form a transition with the external landscape. They make an appropriate response to the local climatic conditions of strong sun and high rainfall. Whilst ‘timber and tin’ are the predominant materials of the older suburbs. The presence of other distinctive building forms, such as the Spanish Mission, and their variety of materials highlights the overseas influence on residential design in Brisbane and is a part of the traditional building character. These housing styles are usually rendered on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof. Setting The traditional setting of houses in the older suburbs is a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and a single width driveway. The setting of the building on the site is also important, particularly in terms of the setbacks provided to existing or proposed side boundaries … -- 5 of 16 -- 6 5 Performance Criteria and Acceptable Solutions Performance Criteria Acceptable Solutions Where a residential building: P1 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 Note: ‘Traditional Building Character’ is described in Section 4 of this Code Where a residential building: A1.1 The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946 OR A1.2 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound OR A1.3 The demolition of a building will not result in the loss of: • traditional building character within the Demolition Control Precinct where in a Low Density Residential Area … • traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low-medium Density Residential Area OR A1.4 The street has no traditional building character … … Where a building built prior to 1900 P7 The building must not be capable of structural repair A7.1 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound -- 6 of 16 -- 7 Issues for Determination [8] The following issues have been raised by the Council2 as founding its opposition to demolition of the building. However, in submissions, counsel for Brisbane City Council “BCC” distilled the issues to the items in italics:- (a) The proposal does not meet P7: Is the building pre 1900 and if so (A1.2) is it reasonably capable of being made structurally sound? (b) The proposal does not meet P1 or A1.1: The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946. The building must not represent traditional building character. (c) The proposal does not meet A1.2: An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound. The building must not be capable of structural repair. (d) The proposal does not meet A1.3: the demolition of a building will not result in the loss of traditional “timber and tin” building character within the Demolition Control Precinct where in a Low-medium Density Residential Area. The building must not contribute positively to the visual character of the street. (e) The proposal does not meet A1.4: the street has no traditional building character. [9] In contrast, the appellant submits the primary issues are whether 3 : (a) The building is reasonably capable of being made structurally sound A1.2 (or A7.1); (b) The building has been substantially altered and/or does not have the appearance of being constructed in or prior 1946 (A1.1); (c) Removal of the building will result in the loss of traditional “timber and tin” building character within the Demolition Control Precinct in which the land is situated (A1.3); or (d) Even if it has some relevant component of “tin and timber” character, the house contributes positively to the streetscape in Palmer Street (P1, third dot point). [10] The fifth basis for the BCC’s opposition to the application, namely that “the proposal does not meet A1.4: the street has no traditional building character” is not in issue. The experts agree that Palmer Street has traditional building character. The failure to show compliance with Acceptable Solution A1.4 was not submitted by the 2 Council’s Decision Notice 22 December 2008 and council’s submissions at pars [9], [12] and [66] 3 Appellant’s Submissions at para [7]. -- 7 of 16 -- 8 BCC to be sufficient to defeat the appellant. The BCC did not submit that the appellant must comply with all Acceptable Solutions to obtain approval despite the fact that the Code provides that a proposal that complies with all Acceptable Solutions will be approved. [11] Acceptable Solution A1.1 includes reference to the “appearance of being constructed in or prior to 1946” as opposed to the fact of being constructed prior to 1946. The parties made no issue of whether the house has this appearance. The appellant made no submission that the house does not have the appearance of being constructed in or prior to 1946. According to the oral evidence of Mr Scott, the house, including its asbestos sheeting, was constructed prior to 1946. Mr Scott had expressed an earlier written opinion that dated the asbestos after the Second World War. I accept his evidence that this was a mistaken expression of his opinion and that his consistent opinion has been that the asbestos sheeting was applied prior to 1946. I accept that opinion. Further, I find consistently with that opinion that the house does have the appearance of being constructed in or prior 1946. [12] If the house was built prior to 1900 the appellant must fail unless it proves that the house is not reasonably capable of being made structurally sound. [13] If the house was not built prior to 1900 the appellant submits that it must succeed if it establishes any one of several matters. It submits that the performance criteria are alternative, not cumulative. It submits that Acceptable Solution A1.1 relates to the first dot point of P1, that Acceptable Solution A1.2 relates to the second dot point of P1 and that Acceptable Solution A1.3 relates to the third dot point of P1. The BCC did not submit otherwise. The submission is consistent with the use in section 1.1 of the Code of the words “corresponding Performance Criterion” in connection with the words “Acceptable Solution”. I accept those submissions. [14] If the building was not erected prior to 1900, to be successful in this appeal, the appellant submits that it needs only to succeed with one of the four matters it identifies as primary issues. The BCC did not submit otherwise. I accept that if the house was not built prior to 1900 the appellant must succeed if it establishes compliance with the Acceptable Solutions A1.1, A1.2 or A1.3 and that if it fails to establish compliance with A1.3 it may succeed if complies with the third dot point of Performance Criterion P1. Date of Construction [15] Historical experts agreed that historical records do not show whether the building was built prior to 1900 but they accepted that it was most likely to have been built between 1889 and 1905. The historical experts’ deferred to architects for any more precision. [16] Each party relied upon expert evidence of an architect to establish when the house was built. Mr Scott, for the BCC reported4 that he was confident it was a 19th century house. In his evidence in chief he observed that his understanding of the historians’ information combined with his own expertise led him to conclude it was most likely to be a 19th century house. 5 Mr Scott is knowledgeable about dating such local houses. He did not explain what it was about the historians’ findings or opinions that assisted him to date the house construction as prior to 1900. With 4 Exhibit 9. 5 T 4-6 L 25. -- 8 of 16 -- 9 respect to the architectural features noted by Mr Scott, counsel for the Council referred in submissions to: • Pyramid roof with short side ledge with separate roof over the verandah. • Central projecting verandah entry gable. • Bay windows to side walls. • U-shaped verandah. These features were all noted by Mr Scott to be present in the house in 1917. They seem consistent with a photograph of the house from 1910. He noted that such evidence is “usually enough to confidently state the house … has been in Palmer Street since the 19th century”. Mr Scott did not explain why the existence of those features was more consistent with construction prior to 1900 than with construction after 1900. In his written opinion he separately observed that that the separate roof over the verandah is usually an indication of a 19th century house. I assume that there was a process of reasoning which led Mr Scott to his opinion but Mr Scott did not identify it. If there was a logical or compelling process of reasoning Mr Scott has not exposed it to allow it to be considered by the court. [17] The features relied upon by Mr Scott to date the construction as prior to 1900 were features also used in construction in the decade after 1900. It is plausible that the unexpressed basis for Mr Scott’s opinion is that the identified features of the house were much more often built in the 19th century than the 20th or more often built between 1889 and 1899 than between 1900 and 1905 and so, statistically the house is more likely to have been built in the 19th than in the 20th century. I accept the appellant’s submission that it would be wrong for me to draw that inference where it was not expressed by Mr Scott and where the appellant has not had the opportunity to test it by cross-examining Mr Scott about it. [18] Mr Scott and the other expert who expressed an opinion about the date of construction, Mr Mack, were agreed about one significant matter. The distinctive features of the house might have been constructed shortly before or shortly after 1900. Mr Mack could not conclude from the features that it was constructed prior to 1900. [19] The architectural experts’ opinion evidence is insufficient to allow me to conclude that the house was probably constructed prior to 1900. That raises the question as to which party bears the onus of proof of this issue. Onus of Proof re 1900 [20] In an appeal by an applicant for a development application, it is for the appellant to establish that the appeal should be upheld. 6 The appellant accepted that it bears that onus but made essentially three submissions to establish that it did not bear an onus of disproving construction prior to 1900. [21] The appellant firstly submitted that the parties identified the issues in dispute and that it is the BCC which asserted in its grounds of refusal that the building was built before 1900, and that the BCC consequently bears the onus. That consequence does 6 Integrated Planning Act s 4.1.50(1). -- 9 of 16 -- 10 not necessarily follow from the council’s raising of the issue. In civil litigation the onus of proof of an issue does not always fall upon the party raising the issue for determination. In conventional civil disputes a distinction is made between conditions precedent necessary for the case of a party and material facts which are of the essence of a cause of action. The distinction is maintained in the Uniform Civil Procedure Rules 1999 (UCPR) at rr 153 and 149 (1)(b) and in authorities.7 If non-fulfilment of a condition precedent is properly pleaded by a defendant, the burden of proving its fulfilment then shifts back to the plaintiff. [22] Secondly, the appellant referred to the impracticality of an appellant’s bearing the burden of proof of the negative of anything which might be raised under a relevant code, “whether or not” the local government had put those matters in issue. That would be impractical. However, that hypothesis is not apt for the case before me. The pre 1900 issue did not arise “whether or not” the local government put it in issue. It arose because the local government expressly and unequivocally put it in issue. [23] A third submission alluded to the conventional proposition in civil cases that the burden of proof lies on a party if the fact alleged is an essential element in that party’s cause of action or is a fact which constitutes that party’s defence. That submission, like the first and second, assumes that the appellant does not bear an onus of disproof of construction prior to 1900. It does not reveal whether the appellant bears the onus. [24] The appellant’s first and third submissions each generally reflect orthodox propositions but do not identify features of the issue which make it appropriate that council bear the onus of proof. [25] This appeal is by way of hearing anew8 and the court acts in place of an assessment manager. The court must approve the application if satisfied that it complies with the Demolition Code. Reference to the table in the Demolition Code of Performance Criteria and Acceptable Solutions reveal that buildings are divided into three classes, namely “a residential building”, “a non-residential building” and “a building built prior to 1900”. Buildings in the third of the classes being those “built prior to 1900” will also be within one or the other of the first two classes because every building in a Demolition Control Precinct will be either a “residential building” or a “non-residential building”. It will be the exceptional case where a building falling into one of the first and second classes will also be in the third class of a “building built prior to 1900”. Every building in the Precinct will fall within either the first or second class. It will be in only exceptional cases that a building falls within the third class. An appeal such as this is adversarial litigation between appellant and council. It would be impractical if an applicant had the obligation in every case to prove that a building did not fall within the exceptional third class and neither party submits that an applicant has that obligation in every case. Where, as here, the alleged construction age is an essential element for a building’s inclusion in an exceptional third class and is raised by council as a basis for rejecting an application which might otherwise satisfy P1 or A1.1, or A1.3 it appears that the issue is less like a condition precedent which is raised and more like an element essential to the council’s defence. It is practical and fair that the onus be upon the council to establish that the building was built prior to 1990 as it seeks to persuade 7 Gilbert & Ors v Goodwin & Ors [2003] QSC 380; Bank of New South Wales v Laing [1954] AC 135. 8 Integrated Planning Act s 4.1.52(1). -- 10 of 16 -- 11 the court that a special fact leads to the building’s inclusion in the exceptional sub- class. [26] The Council made no submission about which party bears the onus on this issue. It was a deliberate election to make no submission.9 Instead, the Council relied upon its submission that Mr Scott’s opinion as to the construction being prior to 1900 was an opinion that should be accepted. As a result, I observe that the Council has not submitted that the appellant bears the onus of proof of this issue and has not argued against the appellant’s submission that the council does. [27] As I am not satisfied that the house was built prior to 1900, I am not required to consider P7 of the Performance Criteria. A1.3: Will demolition result in the loss of traditional “timber and tin” building character in the Development Control Precinct? [28] Acceptable Solution A1.3 is set out above. Because the site is in a “Low-medium Density Residential Area” it is the second dot point from Acceptable Solution A1.3 above that relates to the site. Thus, Acceptable Solution A1.3 provides so far as is relevant: “A1.3 The demolition of a building will not result in the loss of … Traditional ‘timber and tin’ building character within the Demolition Control Precinct…” That can be contrasted with the first dot point from Acceptable Solution A1.3 above that relates to sites in the Low Density Residential Area or Character residential Area and which refers to loss of “Traditional building character within the Demolition Control Precinct”. It is appropriate to distinguish the relevant loss of “Traditional ‘timber and tin’ building character” from loss of “Traditional building character” when considering the Acceptable Solution A1.3 for this site. [29] The appellant submitted when referring to A1.3 that the focus is not on loss of "traditional building character”, as it would be in a Low Density Residential Area or Character Residential Area. It submitted that considerations about Spanish Mission or Californian Bungalow, or other styles of that ilk, with or without “fibro” as part of their construction materials, are therefore completely irrelevant to the inquiry and that the focus of the inquiry in the Low-medium Residential Area is much more specific. In that Area, the acceptable solution A1.3 allows demolition if there would be no loss of traditional “timber and tin” building character. I accept the submissions. The BCC did not submit to the contrary. [30] I accept that submission as providing the proper approach to the application of A1.3. One consequence is that the appellant would gain an advantage if the facts are that demolition of the house will not result in the loss of “Traditional ‘timber and tin’ building character” but will result in the loss of “Traditional building character” within the Demolition Control Precinct. Another consequence is that the proper focus is on whether demolition of the house will not result in the loss of “Traditional ‘timber and tin’ building character within the Demolition Control Precinct” [31] It is not the loss of “timber and tin” building character but “traditional ‘timber and tin’ building character” which is relevant. Evidence revealed that prior to the 9 Reply of the respondent Brisbane City Council para 14. -- 11 of 16 -- 12 Second World War there became popular the use of fibro sheeting as a light, practical, cheap alternative to timber. It was not unusual for larger timber dwellings to be converted into flats with the enclosure of verandahs with fibro sheeting. It was not submitted that the subject house enclosure with asbestos sheets caused it to have a “traditional ‘timber and tin’ building character”. The “traditional ‘timber and tin’ building character” can be discerned from reading section “4 Assessment Guidance – an explanation of traditional building character”. I accept the opinions of Mr Mack that the fibro sheeting obliterated elements such as eaves, sunhoods, verandahs and lattice screens that provided three dimensional effects and hid the timber painted walls that would otherwise have contributed to a unifying theme with traditional timber and tin houses elsewhere in the street. The addition of the asbestos sheeting did not create “traditional ‘timber and tin’ building character” nor transform one form of that character to another form of “traditional ‘timber and tin’ building character”. The addition of asbestos sheeting tends to obscure “traditional ‘timber and tin’ building character”. The issue arising from A1.3 is whether sufficient of that character remained at the house so that demolition will result in the loss of traditional “timber and tin” building character. [32] Mr Mack, the architect whose opinion was relied upon by the appellant observed: “…..the building no longer represents any recognisable form of ‘traditional building character’ – at most, there are traces of such character once possessed but now lost”. [33] One sees that Mr Mack there addressed the broader issue of “traditional building character” rather than the narrower issue of “traditional ‘timber and tin’ building character”. It follows that he holds the view that the house no longer represents a recognisable form of “traditional ‘timber and tin’ building character”. [34] BCC’s counsel submitted that Mr Mack’s view is not maintainable and justified the submission by referring to the specific explanation of “traditional building character” 10 in the Demolition Code and to features of the house which counsel summarised as follows: Street Context ƒ It has a frontage of approximately 20m ƒ It is single level elevated on stumps ƒ reasonably uniform scale accentuated by stepping of the levels in hilly suburbs Building Form and Scale ƒ Predominantly solid core with attached or integrated verandahs raised above ground on timber stumps ƒ Enclosed areas underneath generally maintain street appearances of lightweight support to upper floors ƒ Roof forms are pitched pyramids hips or gables 10 From section 4 of the Demolition Code which is set out above and in exhibit 1 pages 69 - 70 -- 12 of 16 -- 13 Materials and Details ƒ Eaves, sunhoods and verandahs ƒ Painted timber walls and corrugated roof sheeting ƒ Lightweight elements which reduced building bulk ƒ Timber and tin are the predominant materials but may include fibro Setting ƒ Fairly uniform building line ƒ Front gardens punctuated by pedestrian path and single width driveway. [35] The primary significance of the features identified by the BCC in the Code is the appearance they create rather than their mere existence. To hide the structural features behind external asbestos walls is to remove the relevant shadows and three- dimensional effects, to add a historically discordant material to the relatively limited range of materials available at the time of construction and to clash with any unifying theme of painted timber walls. [36] I reject or substantially reject the second dot point of the submission relating to “street context”, the first and second dot points of that submission relating to “building form and scale” and all four dot points relating to “materials and details”. The house is no longer a single level elevated on stumps. It has a flat below. Those other features in the rejected dot points which have not been obliterated have been hidden. I was not asked by the BCC to consider the interesting hypothesis of a traditional timber and tin character building, intact, but hidden behind sheeting which could be removed to reveal the original house behind. The facts of this case are not consistent with such a hypothesis. [37] In terms of what was once a verandah on three sides:- a) The entire area is enclosed by permanent external walls made of asbestos, which constitute the external walls of the building; b) External windows have been inserted in those external walls; c) The verandah balustrades have been removed; d) Although verandah posts have been reused as vertical wall supports for the external wall, the decorative bracing detail which originally appeared at the top of the posts has been removed; e) The ceilings are now asbestos panels; f) The timber walls which once were the external walls of the "solid core" of the original house differ from their original form. When they became internal walls many lost external windows and have large open spaces in and between them and some are partly clad with asbestos panels; g) Stripping off the external asbestos walls would reveal not an open verandah but, instead (and looking at the building from the street):- i. a kitchen on the right-hand side, just to the rear of the right front; ii. a bathroom and toilet just behind it; iii. a further kitchen (for another flat) towards the right rear; iv. a kitchen on the left-hand side, occupying the left rear; v. a bathroom and toilet next to the rear left corner; -- 13 of 16 -- 14 vi. bedrooms and living rooms occupying the balance of the historic verandah area. [38] The BCC submitted with respect to “material and details” that timber and tin are the predominant materials but may include fibro. I accept that the existence of a building with some fibro on the exterior may have “traditional ‘timber and tin’ building character” or ‘traditional building character”. I note that the submission does not suggest that fibro is a material typically used for buildings displaying “traditional ‘timber and tin’ building character”. I note also that the code’s reference to fibro was in the context of some traditional building characters other than “traditional ‘timber and tin’ building character”. [39] Section 4 of the Code also includes reference to roof forms. The interesting metal roofs and some horizontal timber boards between them are the primary visible structural remnants of the time when the house unquestionably had traditional timber and tin building character. They are at their most apparent when looking from about 5 metres west of the north western corner. They are there clearly visible to a passer-by standing at street level. At the rear south-western corner of the house, from within the site, one can see that horizontal timber boards make up the southern part of the western façade and part of the southern façade of the upper level. That rear section has little significance. Mr Scott accepted that if the roof were in a non- traditional form, the building would be unrecognisable as one of traditional building character. [40] The issue is not whether it is recognisable that the building formerly had a “traditional ‘timber and tin’ building character” or whether the roofs which helped create that former character remain visible and are unusual or interesting. In this case the answer to each question would be “yes”. The issue is whether demolition will result in the loss of “traditional ‘timber and tin’ building character” within the Precinct. While the focus of A1.3 is on character within the Precinct and the focus of the third dot point of P1 is on visual character of the street it seems practical to look in particular at whether the house has a traditional character and in particular whether the character of the visible external parts of the house have “traditional ‘timber and tin’ building character”. [41] I distinguish characteristics from character and note that the Code’s concern is with character. Section 4 of the Code directs attention to traditional building character and to component features or characteristics from which character derives. An assembly of characteristics will create character. However, it is appropriate when assessing the site to distinguish character from characteristics. The existence of remnant characteristics of a former “traditional ‘timber and tin’ building character” does not necessary mean the character remains. The Code aims to preserve character and not characteristics of “traditional ‘timber and tin’ building character” [42] I find that the parts visible to an observer outside the house are so changed that the building itself does not have “traditional ‘timber and tin’ building character”. If my emphasis of those parts is wrong for ignoring parts not visible from the outside, and if it were proper to consider internal structural matters not visible from the outside I would be satisfied that behind the asbestos exterior walls, the changes to the verandahs and the former external walls of the core and the changes within and below are so significant that the house does not have “traditional ‘timber and tin’ building character”. -- 14 of 16 -- 15 [43] Acceptable Solution A1.3 refers to the loss of “traditional ‘timber and tin’ building character” within the Demolition Control Precinct rather than within the site. The appearance of the house is so altered from the appearance of a house with “traditional ‘timber and tin’ building character” that its demolition will not result in the loss of “traditional ‘timber and tin’ building character” within the Demolition Control Precinct. [44] That finding is sufficient basis upon which to allow the appeal. P1 The house must not contribute positively to the visual character of the street [45] If I am wrong in finding that the house’s demolition will not result in the loss of “traditional ‘timber and tin’ building character” within the Demolition Control Precinct then it would follow that the appellant failed to comply with Acceptable Solution A1.3. Section 1.1 of the Code explains: “The Performance Criteria are in the left hand column of the Code table. They provide a statement of the outcome that the Acceptable Solution must achieve. A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met…The Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose.” It is for this reason I propose to consider the allied issue of whether the corresponding Performance Criterion being at the third dot point of P1 has been met. If it is to be met, the evidence must establish that the building does not contribute positively to the visual character of the street. [46] Counsel for the BCC described it realistically as being in a neglected state which invites rescue. Without a rescue that attends to its aesthetics its contribution to the visual character of the street is not positive. It is not submitted by the BCC that the contribution to be considered is a hypothetical future contribution it could make if rescued. The house is structurally unsound and will remain so unless building work is done to a value of somewhere between $80,000 on the BCC’s case and $400,000 on the appellant’s case. If building work to a value of $80,000 were done on the basis suggested by the BCC’s engineer towards making the house structurally sound, it would make no relevant difference to the aesthetic contribution the house makes to the street. External aesthetics aside, it would be uninhabitable without still more work. The rescue referred to by the BCC would need to attend to more than mere structural soundness if it were to affect the house’s contribution to the visual character of the street. In these circumstances it is realistic to regard its current presentation as demonstrated in the photographic evidence as representing the relevant contribution to be considered. [47] Palmer Street is lined with mostly interwar multi gabled timber and tin houses and was largely developed during that period. Those houses appear to be well maintained. The subject house is unique in its dilapidation. It appears as a dilapidated, uninhabited and uninhabitable, fibro box inappropriate for its interesting roof. To Mr Scott, the house’s remnant original features display its different former style and thus demonstrate a different period in the street’s history -- 15 of 16 -- 16 of development and the conversion of its verandahs to allow for flats and the use of fibro sheeting is each a matter which also demonstrates a particular period of Brisbane’s history. I accept that for persons learned in architectural history, as is Mr Scott, the house may provide a positive visual contribution, notwithstanding its dilapidation. I find that the average person walking Palmer Street would not obtain the same satisfaction from the house as does Mr Scott. I find that it does not contribute positively to the visual character of the street. [48] It becomes unnecessary to consider the alternative bases urged by the appellant for a demolition order. -- 16 of 16 --