Hamilton v Brisbane City Council [2016] QPEC 28

[3] The house is located at 75 Eighth Avenue in the Brisbane suburb of Kedron. Eighth Avenue is a long (but quiet) street that runs in a west to east direction between Leckie Road to the west and Mercer Park to the east. The heritage architects relied on by the parties, Mr McDonald for the appellant and Mr Scott for the respondent, agreed that the relevant "study area" lay between Glen Kedron Lane to the west and Mercer Park to the east.[1]

[4] It was not in dispute that the house was situated in a Character Residential (CR1) zone, was within the Lutwyche Road Corridor neighbourhood plan area and within the Traditional Building Character overlay.

[5] There are 30 houses situated within the study area and 28 of those were constructed on or before 1946. In his separate report Mr Scott made the following observations:[2]

"...As there are 30 houses in this streetscape and 28 of them are Character house (sic) this corresponds to 93% Character - a surprisingly high proportion given this area of Kedron was on the edge of Brisbane in 1946 and frequently streets were only partly developed by this time.

A resident of the street or area, or a visitor to the street would be aware that this street is relatively quiet, with little through traffic, lined with trees and containing a high proportion of pre-1947 houses of traditional character."

[6] A perusal of the photographs contained in Mr Scott's report confirm these observations.[3]

[7] The house is situated on the southern side of Eighth Avenue. Immediately adjacent to its street frontage are significant barriers and road signs.[4] The reason for those barriers and signs is because Eighth Avenue "dead ends" adjacent to the house. In fact only about 6m of the site frontage is adjacent to the sealed section of Eighth Avenue. About 9m of the site fronts an unconstructed road reserve which lies behind the aforesaid barriers and signs. Accordingly, only some 50% of the front of the house presents to the street.[5]

[8] Another unusual feature of the house is that it, like its neighbour to its immediate west, while of pre-1946 construction differs significantly from the other houses in the street. As Mr Scott identified in his report, the majority of the houses in the street are of a recognisable "interwar timber and tin" character.[6] The subject house is described as being "clearly a 1920 or 1930 stucco and tin, Character house".[7] The house to its immediate west is described as "an interesting Spanish Mission style cottage, stucco and tile and built prior to 1946 - Character house".[8] The subject house was described in more detail by Mr Scott in the following terms:[9]

"While the subject house does not have detailing typical of either the Spanish Mission or Mediterranean style it is part of a family of related house styles which share stucco gables with decorative parapet detailing. The subject house also displays the following traditional details:

• Single level house elevated on a base
• Pitched metal roof with eaves
• Timber framed multi-panel casement windows
• Timber framed traditional doors"

Finally, the house is virtually concealed when viewed from the north by vegetation and its visibility from the west is virtually non-existent from about 30m-35m away. The house is in a dilapidated state and is apparently abandoned.

[9] Immediately opposite the subject house at 28 Sturt Street, is a lowset timber dwelling with a tiled roof.[10] Further to the west (60, 62 and 64 Eighth Avenue) are timber houses; two with tin roofs and one with a tiled roof.[11]

[10] Notwithstanding the raft of matters addressed in the Decision Notice refusing the application and the grounds of appeal, it was agreed between the expert heritage architects that the appeal really turned on whether there was genuine conflict with the respondent's City Plan 2014 (CP2014), in particular, whether the demolition would be in conflict with the relevant parts of the Lutwyche Road corridor neighbourhood plan code (the neighbourhood plan) and the Traditional building character demolition overlay code (the demolition code).

[11] Section 7.2.12.4.2(1) of the neighbourhood plan provides:[12]

"The purpose of the Lutwyche Road corridor neighbourhood plan code is to provide finer grained planning at a local level for the Lutwyche Road corridor neighbourhood plan area.

(3) The overall outcomes for the Lutwyche Road corridor neighbourhood plan area are:

(c) in the balance of the neighbourhood plan area, established residential areas such as Gordon Park, Kedron and Wooloowin are primarily for low density residential uses with character housing retained." (emphasis added)

[12] Section 8.2.21.2 of the demolition code under the heading "purpose" provides:[13]

"(2) The purpose of the code will be achieved through the following overall outcomes:

(a) development protects residential buildings constructed in 1946 or earlier that 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.

(e) development retains a residential building constructed in 1946 or earlier that reflects the traditional building character other than 'timber and tin' architecture, if in the character residential zone..." (emphasis added)

[13] The relevant assessment criteria under the demolition code is that identified in Performance outcome 5 (PO5) and Acceptable outcome 5 (AO5). They relevantly provide:[14]

(a) does not represent traditional building character; or

(c) does not contribute positively to the visual character of the street...

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

(c) if demolished will not result in the loss of traditional character; or

(d) is in a street that has no traditional character...

Both expert witnesses agreed that only PO5(c) and AO5(c) are of relevance in this proceeding.[15]

[14] Quite apart from the sections of CP2014 identified above, it is clear that "character housing" and "traditional character suburbs" are seen by the respondent as important components or markers which help define Brisbane as a city.[16]

[15] Each of the experts set out in detail their respective positions in their joint expert report.[17] However, during the course of the proceeding it became clear that Mr McDonald's opinion largely rested upon the house's "visual perception".[18] That is, its visual contribution and physical connection to and with the streetscape. While acknowledging the dominant traditional character of the street, which Mr McDonald described as being largely "intact" and that the house was a pre-1947 character house, Mr McDonald nonetheless considered that it contributed to the streetscape in only "a very little way" or in a "small way".[19] His reasons being articulated during his evidence in chief:[20]

"Q: And, at the risk of asking you to repeat yourself, why do you think that is?

A: Largely because of the particular siting characteristics of the subject building. It's at the end of a dead end street. It's shielded from almost all streetscape view by flanking buildings. It's set marginally back from the alignment of the adjoining number 75 building. Even the - the structure of the street is such that while the form part of the street extends marginally across the front of the subject site, I think any sensible driver - reaching the end of Eighth Avenue and wanting to make a U-turn would probably do that U-turn where the throat of Sturt Street widens the road. It doesn't seem to me to - that Eighth Avenue is a particularly heavily pedestrianised path, such that there would be any significant number of pedestrians walking past the place... so there's a range of reasons why I think it's very inconspicuous in the streetscape."

[16] During his evidence in chief Mr Scott was asked to comment on Mr McDonald's assessment of the house's contribution to the streetscape. In that context, the following exchange took place:[21]

"A: Well, my understanding of how I assess the street's character was that I imagined - well, I did walk up and down the street and formed an impression of the street based on what I saw. Obviously, as you walk along the street I saw through the trees to the houses in the street. If there were dips and - slight dips and slight rises in the street, I walked though those and looked at the character of the street by walking up and down the street. I think the street is relatively level. Obviously, the subject house is in the southeast corner of the street. It is less prominent than some of the house(s) in the street, but my understanding of the character of the street is - consists of having an impression, as it were, in my mind of each of the houses in the street. And the subject house is one of the houses in the street and contributes to the street accordingly.

Q: In terms of the contribution to the street do you undertake the exercise by reference to standing only proximate to the house or from - only from assessing it from one point further down the street? Or how do you undertake the exercise?

A: Yep. No. I think that perception of both the subject house and all the houses in the street is gained from multiple views of the street that - from one particular point looking along the street it's only possible to see maybe two, maybe four, maybe six houses. And so to see the street you move up and down the street to see all that's in the street."

[17] During cross-examination the following exchange took place:[22]

"MS WHITEHOUSE: Mr Scott, at 16.2(d) of the joint report you maintain that:

'Demolition would result in loss to the character.'

Q: Do you mean by that that - to suggest that any loss of character would be an unacceptable loss to this particular street?

A: Insofar as the - the house is recognisably a pre-1947 house, its visible from the street, it's one of a strong - one house in the street full of traditional character houses that, I think, it does - its loss would be a loss to the character of the street. That's correct. The - if - if the house was not recognisable a pre-1947 house, or if it was so disconnected from the street that it was invisible, I would suggest that would - that would preclude it from having any impact on the character of the street by its demolition.

1. Would you accept, though, that this house is quite disconnected from the street?
   1. Well, no, I don't. I - I accept that it's at the end of the street.
   2. Would you accept that it goes beyond the end of the street in terms of its frontage as a whole, not just considering the first three metres of the western side of the property?
   3. I think we agreed six metres to the formed part of the street. The - the street continues on past the subject house. I'm - I think that people would walk past the house and would be aware of it. I think it - it is - it is part of the streetscape of Eighth Avenue. I wouldn't accept that it's disconnected from the street in that regard. And in every group of character houses there's always the end character house. I mean, if half the street was full of three-storey face brick units and then there was, say, a group of character houses, there would be - one of those character houses would have a block of units beside it. In this case the subject house is at the end of the street."

[18] A not inconsiderable part of the evidence of both Mr McDonald and Mr Scott during the proceeding was concerned with the volume of vehicular and/or pedestrian traffic that would be likely to pass the house. Insofar as it may be relevant, I have reached the conclusion that there would be little passing traffic either vehicular or pedestrian. The house is located not in a cul de sac but a dead end. It would be expected that the vast majority of the traffic at the eastern end of Eighth Avenue would be that turning left into Sturt Street from Eighth Avenue or turning right from Sturt Street into Eighth Avenue. Pedestrian access to the parkland is limited by topography and the lack of any meaningful pathway.

[19] That the volume of passers-by may be expected to be relatively low, while perhaps of some relevance, is not really to the point. As identified by Skoien DCJ in Lonie v Brisbane City Council,[23] the test is: what would the average person passing along the street and taking the trouble to look about, make of the visible character of the house.

[20] I respectfully agree with his Honour's reasoning but would make one observation only because it arose during submissions. In referring to a person "walking the street" it could not be seriously said that vehicular traffic was being expressly excluded by his Honour. Of course, the pedestrian would typically have more time to fully appreciate what he was passing by.

[21] On balance, while I do not consider Mr Scott's evidence was materially shaken in cross-examination, I was left with the distinct impression that he wanted to preserve the house come what may. In my view he materially overestimated the visual impression the house makes on the streetscape. That is so for a number of reasons. In my view Mr Scott significantly overstated the house's visibility from the street. In the joint expert report Mr Scott states that the house is "clearly visible from the street and recognisable as a 1920's or 30's 'stucco and tin' house of traditional design". The house is not clearly visible from the street, even from a vantage point near the intersection of Eighth Avenue and Sturt Street. Any objective analysis of the photographs taken by Mr McDonald reveals that.[24] Indeed, even from the footpath adjacent to the adjoining property and from immediately in front of the house its physical characteristics are significantly obscured from the street.[25]

[22] While I accept that the house is more visible from the road reserve along the eastern boundary, it is the way the house presents to the street that is of most relevance. And, in that context, I agree with Mr McDonald that it is only visible from a very small part of the street and, even then, the view is a materially obstructed one.[26] In this context, it is relevant that about 50% of the frontage of the house extends beyond the road barriers at the end of the street.

[23] In the joint expert report Mr Scott described the house and its surrounds thus: "the minimally maintained appearance of the subject house adds to its picturesque qualities rather than detracting, giving the subject house a strong traditional appearance in the street".[27] When asked what he meant by that Mr Scott replied "what I was referring to is that it looks old... but what I was referring to was that if - if I lived in the street and was occasionally up that end of the street, I'd be aware of it as - as, you know, the old house at the end of the street".[28] When pressed on the point Mr Scott agreed that the house "has certainly been run down".[29]

[24] According to Mr Scott, the house was not, as Mr McDonald opined, disconnected from the street despite it being at the end of the street and largely screened by vegetation. When asked in what circumstances a house may become disconnected from the street Mr Scott gave examples of a house being below street level, a house being disguised or largely hidden from view behind a solid fence and having a deep setback.[30] According to Mr Scott it would have to be something "more definite than just vegetation".[31] I am unable to fully accept that proposition. Dense vegetation would be just as capable of obscuring appearances as a wall. It may be easier to clear vegetation than to demolish a wall but that is not to the point. You can either see the house clearly or you cannot. It would be wrong to speculate about what might or might not happen to the current overgrown state of the land.

[25] Mr McDonald's evidence concerning the relevance of the onsite vegetation was confusing. That the house was "concealed" from the street by "dense vegetation" seemed to be important during the joint expert report phase.[32] However, in cross-examination it became "one of the least important factors"[33] and was relied on to only "a limited degree".[34]

[26] That contradictory evidence on the part of Mr McDonald does not detract from the fact that the totality of the evidence establishes that the house has very little connection with Eighth Avenue. That is because of the combined effect of it being at the very dead end of the street, only some 50% of the front of the house faces the sealed section of the road and its appearance is materially obscured by vegetation.

[27] Insofar as it may be relevant, I also consider that Mr Scott has materially overestimated the volume of likely passers-by from the streets and/or along the road reserve to the east.

[28] There is no doubt that the "fine grained" neighbourhood plan places an emphasis on retaining character houses.[35] It is also tolerably clear that a greater emphasis is to be placed on retaining character houses that are not of the more typical "tin and timber" construction.[36] However, town planning instruments have to be construed broadly and in a common sense way which best achieves its purpose and objects.[37] And whether or not a conflict exists is to be determined by a consideration of the relevant provisions of the scheme in the light of all the relevant facts.[38] That is, even allowing for an emphasis on the retention of less traditional character houses, it is not a case of retention for retention's own sake. The worth or strength of the case for retention is to be considered in the light of all relevant circumstances but, in particular, with the other relevant provisions of CP2014. In this case, in particular, the demolition code. Of course, the onus remains at all times on the appellant to satisfy the Court on the balance of probabilities that the appeal ought be allowed. Or, to put it another way, that the demolition of the house would not cause genuine conflict with CP2014.

[29] Section 8.2.21.2(2)(e) of the demolition code emphasises the importance of retaining pre-1947 houses which reflect traditional building character "other than timber and tin" architecture. The subject house falls into that category. However, that subsection has to be read in conjunction with subsections (a) and (d) which place an emphasis on the contribution the house makes to the "area" and/or "streetscape". That emphasis is reflected in P05(c) where the fundamental question to be asked is whether the subject house does not contribute positively to the visual character of the street. In AO5(c), a similar but not identical question needs to be answered, namely would the demolition of the house result in a loss of traditional building character.

[30] It is well recognised that in assessing the contribution that a character house makes does not depend on it being in its original pristine condition. Nor does it have to be a unique or good example of its type.[39] Further, when addressing the Outcome identified in PO5(c), the issue is whether the contribution is a positive one in that it adds to the visual character of the street rather than being neutral or detracting from the streetscape.[40] It is equally well established now that insofar as AO5(c) is concerned, the relevant loss of traditional character has to be one that is meaningful or of significance.[41]

[31] In Mariott v Brisbane City Council Bowskill QC DCJ considered the interrelationship between the performance outcomes and the acceptable outcomes in the demolition code and said:[42]

"In terms of the relationship between preferred outcomes and acceptable outcomes, the corresponding acceptable outcomes describe the preferred way of achieving the performance outcome. However, it was not in issue that each of PO5(c), AO5(c) and AO5(d) are alternatives. If any of them are met, then by operation of s 5.3.3(c)(iii) of CP2014, the purpose and overall outcomes are complied with, and, in turn, the code is complied with." (footnotes deleted)

[32] Section 5.3.3(1)(c)(iii) provides:[43]

(i) development must be assessed against all the applicable codes identified in the assessment criteria column;

(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;"

[33] With respect her Honour's analysis is clearly correct and was accepted by Ms Kefford (counsel for the respondent).[44]

[34] For the reasons given; overall I prefer the evidence of Mr McDonald and find that any contribution the house makes to the street is very small. That of course means that the contribution is still a positive one for the purposes of PO5(c). However, also for the reasons given, the evidence before me leads me to the conclusion that its demolition would not result in any meaningful or significant loss of character for the purposes of AO5(c).

[35] In this context I consider Mr Scott's description of, the house as simply being "the old house at the end of the street" to be quite an accurate one.[45] I would only add to that description that the old house was also largely obscured from the street and in a significantly rundown condition even if structurally sound. To adopt the terminology of Skoien DCJ in Lonie,[46] the ordinary person walking down Eight Avenue would regard the absence of this house as having no meaningful impact on the visual character of the street.

[36] For the reasons given the orders of the Court are:

2. I will hear from the parties as to any consequential orders.

[16] E.g. Exhibit 4, p 32, s 3.4.1 of the strategic outcomes.

[23] [1998] QPELR 209 at 212.

[25] Ibid photographs 1, 2, 3 and photographs 14, 15, 16 and 17. Also Mr Scott's photographs, Exhibit 5, Figures 1 and 2.

[28] T1-35 lines 15-27. See also lines 35-40.

[29] T1-35 lines 43-46; T1-36 lines 1-4.

[32] Exhibit 2, paras 16.1(d), 17.1(b), 18.1, 19.1 and 20.1.

[35] Section 7.2.12.4.2(c); Exhibit 4, p 88.

[36] Section 8.2.21.2(2)(e) of the demolition code; Exhibit 4, p 110.

[37] Westfield Management Pty Ltd v Pine Rivers Shire Council [2004] QPELR 337 and cases cited therein.

[38] Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30 at [24]. Conflict in this context means to be at variance or disagree with: Woolworths Ltd v Maryborough City Council (No 2) [2006] Qd R 273 at [23] and [25]; Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370 at [16].

[39] Unterweger v Brisbane City Council [2012] QPELR 335 at [10].

[40] Mariott v Brisbane City Council [2015] QPEC 45; [2015] QPELR 910 at [89]. Cited with approval in Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPEC 3; [2016] QPELR 223 at [7].

[41] Se Ayr Projects Pty Ltd v Brisbane City Council at [8]; Mariott v Brisbane City Council; Wallace v Brisbane City Council [2012] QPEC 47; [2012] QPELR 689 at [31].

[46] [1998] QPELR 209.