Kanesamoorthy & Anor v Brisbane City Council [2016] QPEC 42

[4] In addition to code assessment under SPA, the Application required assessment against the Racecourse Precinct Neighbourhood Plan Code[2] ('Neighbourhood Plan Code') and the Traditional Building Character (demolition) Overlay Code ('Demolition Code') of City Plan 2014. By letter of 2 June 2015, the Respondent notified the Appellants of its refusal.

[5] Appendix A hereto contains the Council's reasons for refusal ('Decision Notice') and details conflicts with the following provisions of the Demolition Code:

Traditional Building Character (Demolition) Overlay Code ('Demolition Code')

[6] The relevant provisions of the Demolition Code in respect of this appeal are reproduced below:

(1) The purpose of the Traditional building character (demolition) overlay code is to:

(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.

(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 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.'

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

General criteria if not in the Latrobe and Given Terraces neighbourhood plan area

(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.

(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.

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

[7] The Appellant appeals pursuant to section 461 of SPA and bears the onus of establishing that the appeal ought to be allowed and the Application approved.[3] Pursuant to section 495 of SPA, the appeal is by way of a hearing anew to the intent the Court stands in the shoes of the original assessment manager, and must to the relevant extent, assess and determine the Application.

[8] The Application required code assessment pursuant to section 313 of SPA. Section 313(2)(c) of SPA requires that the assessment is to be carried out against applicable codes. It is not in dispute between the parties that the Demolition Code under City Plan 2014 is the applicable code for the purposes of the appeal.[4] Nor is it in dispute that Performance Outcomes PO1 to PO4 and PO6 to P10 (inclusive) of the Demolition Code are not applicable. Performance Outcome PO5 (extracted above) is the only relevant Performance Outcome.[5]

[9] In Westfield Management Ltd v Pine Rivers Shire Council & Anor[6], Britton SC DCJ set out the various principles with respect to the interpretation of planning schemes. His Honour noted,

'They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach; they should be construed as a whole; they should be construed in a way which best achieves their apparent purposes and objects and although planning documents have the force of law they are not drawn with the precision of an Act of Parliament'[7]

[10] The appeal is to be decided in accordance with ss 324 and 326 of SPA. Section 324 of SPA relevantly provides:

(1) In deciding the application, the assessment manager must -

(b) approve all or part of the application subject to conditions decided by the assessment manager; or

(2) The assessment manager's decision must be based on the assessments made under division 2.

(3) The assessment manager's decision must not be inconsistent with a State planning regulatory provision.

(a) the assessment manager may give a preliminary approval, other than a preliminary approval to which section 242 applies, even though the applicant sought a development permit; and

(b) if the assessment manager approves only part of an application, the balance of the application is refused.

(1) The assessment manager's decision must not conflict with a relevant instrument unless -

(a) the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or

(b) there are sufficient grounds to justify the decision, despite the conflict; or

(c) the conflict arises because of a conflict between -

(i) 2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or

* Example of a conflict between relevant instruments -

(ii) 2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument.

* Example of a conflict between aspects of a relevant instrument -

relevant instrument means a matter or thing mentioned in section 313(2) or 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out.

[12] Under section 326 of SPA, a 'relevant instrument' includes applicable codes under City Plan 2014. Hence, pursuant to section 326(1)(b) of SPA, the decision of this Court must not conflict with the Demolition Code. The Appellants have not raised any 'sufficient grounds' to warrant approval of the Application in the event conflict with City Plan 2014 is found.

[13] The Appellant relies on the following grounds of appeal ('Grounds of Appeal'):

'10. The Application should have been approved by the Respondent for the following reasons:

a) The Application complies with Acceptable outcome AO5 of the Traditional building character (demolition) overlay code (Code) of the Planning Scheme, in particular:

(i) Acceptable outcome AO5(c) of the Code, as demolition of the Dwelling will not result in the loss of traditional building character as the traditional building character of Kent Street has already been highly eroded and therefore the resultant loss of the traditional building character from the demolition of the Dwelling is significant.

(ii) Acceptable outcome AO5(d) of the Code, as Kent Street expresses insufficient traditional character with the overall character of the street generated by a majority of modern multi-unit dwellings and post-1946 houses and buildings.

b) The Application complies with Performance outcome PO5 of the Code, in particular PO5(c), as the Dwelling does not contribute positively to the visual character of Kent Street as:

(i) the visual character of Kent Street is characterised by a majority of modern multi-unit dwellings and post-1946 dwellings and houses; and

(ii) the Dwelling is unimportant to the predominantly post-1946 character of Kent Street.

c) The Application complies with the Purpose of the Code, in particular:

(i) Point 2(a) as the Dwelling is not important in giving the area in the Traditional building character overlay its traditional character and traditional building character; and

(ii) Point 2(d) as the Dwelling does not form an important part of a streetscape established in 1946 or earlier.

[14] The Appellants accept that Performance Outcomes ('PO') 5(a) and (b) and Acceptable Outcomes ('AO') 5(a) and (b) of the Demolition Code set out above are not relevant and acknowledge the building represents traditional building character, has not been substantially altered, lacks the appearance of construction pre-1946, or is structurally unsound and incapable of structural repair. [8]

[15] That is consistent with the evidence of the heritage experts in their joint report ('Joint Report of Expert Heritage Architects').[9] Council agrees that only the following provisions of the Demolition Code require consideration:

[16] It can be seen that the provisions of Performance Outcome 5 impose alternative, rather than cumulative requirements. Further, section 5.3.3 of City Plan 2014 relevantly provides:

'(1) The following rules apply in determining assessment criteria:

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

(A) the purposes 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.'[10]

[17] So it is sufficient for the appeal to be allowed for the proposal to be compliant with any of the provisions of the Demolition Code identified in paragraph [15] above. Pursuant to section 5.3.3(1)(c)(iii)(B) of City Plan 2014, if the Application is consistent with any of the Acceptable Outcomes (AO) or the Performance Outcomes (PO), the development will be said to comply with the purpose and overall outcomes of the code. By complying with the purposes and overall outcomes of the code, the development thereby complies wit[11]the Code.11

[18] Central to the appeal is a determination of the building character exhibited by the Dwelling and the surrounding streetscape of Kent Street. The Demolition Code makes specific reference to 'traditional building character'. The meaning of this phrase is detailed within the Traditional Building Character Planning Scheme Policy ('Traditional Building Character PSP'). The Traditional Building Character PSP is set out in full at Appendix B. Relevantly, the Traditional Building Character PSP makes reference to the following elements which are said to contribute 'traditional character':

[19] In Unterweger v Brisbane City Council[13], Rackemann DCJ provided a helpful summary of the principles relating to the interpretation of the Demolition Code and its earlier iterations. His Honour said:

'10 The Demolition Code and its predecessor have been examined by the Court in earlier cases. The following emerges from those decisions.

(a) in cases where the determining features are such concepts as building character, the Court must bear firmly in mind that it must act on the evidence and not its own opinions, and that the view is not evidence, but merely an aid to understanding the evidence;

(b) it is not necessary that the street or the dwelling are 'pristine' in order for demolition to be refused;

(c) alterations might not deprive a building of its traditional building character. Whether they do is a question of fact and degree to be assessed in each case;

(d) the Demolition Code does not require a pre-1947 house to have architectural merit;

(e)it is not necessary that a house exhibit each of the features identified in the explanation of traditional building character in order for it to represent that character;

(f) there is no requirement that a pre-1947 building be "remarkable", "unique" or "even good";

(g) the Court must be astute to prevent aesthetic considerations from intruding. A pre-1947 building, even if "ugly", is to be assessed only on the factors recognised in the Demolition Code as important;

(h) while the explanation of the term "traditional building character" in the Code and the various elements of that explanation may be seen as a useful guide, it is only an explanation. It is not, and does not purport to be, a definition. It speaks in generalities. The Code does not suggest that "traditional building character" denotes some kind of prototype from which only minor variations of style are permitted;

(i) the presentation of a house to the street may be given greater weight than what may have occurred at the rear, out of view from the street;

(j) unsympathetic alterations which are of a kind which are easily reversible might not prevent an informed observer readily imaging the original presentation of the house, but such alterations remain relevant;

(k) that a site might be suitable for redevelopment for broader reasons and is capable of being sympathetically redeveloped does not satisfy the requirements in order to justify demolition; and

(l) it is relevant to enquire whether the street in question has been robbed of its traditional character by the extent of redevelopment.'[14]

AO5(d) - Development involves a building which is in a street which has no traditional character

[20] The first step in assessing compliance with AO5(d) is to identify the 'street' under consideration. It is then necessary to ascertain whether that street exhibits traditional character for the purposes of the Demolition Code. The heritage experts agree that the extent of the relevant street, streetscape and area is the entire length and both side of Kent Street extending from Racecourse Road (in the West) to Allen Street (in the East) ('the Street').[15] Both parties have submitted that this is the correct delineation of the relevant 'street' for the purposes of Demolition Code.[16]

[21] Mr McDonald, Appellant's heritage expert, expressed the opinion that the street does not have traditional building character, but rather a modern character generated by the preponderance of post-1946 buildings situated along the Street.[17] Further, he states the Street does not express "that rare type of intermingled 'mixed character'".[18]

"..very rarely, there can be such an even intermingling of traditional and non-traditional building character within a street that a street is not reasonable able to be characterised as predominantly one character or the other. In this rare circumstance, it may be fair to characterise such a street as having a 'mixed character'."[19]

[23] Mr Scott, Council's heritage expert regarded the Street of mixed character with both traditional character and non-traditional character buildings present in any view of a pedestrian travelling along the street. In his view, the Street could not be described as having 'no traditional building character'.[20]

[24] As to the question of the Street's visual character, I have been referred by both sides to the well-known passage of Skoein SJDC in Lonie v Brisbane City Council & Ors[21], where his Honour said:

'In a nutshell, it is this: would the average person walking the street and looking about, with a perception which falls somewhere between that of a PhD 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"?'[22]

[25] Against that test, Mr McDonald, for the Appellant concluded:

'In summary, the visual character of Kent Street is generated by a preponderance of modern multi-unit dwellings and commercial buildings dispersed along both sides of the street. Both in terms of numerical minority and lack of visual prominence, the mix of the subject building and the few other pre-1947 houses that remain under demolition control in the street is so diluted within the street that it fails to generate sufficient traditional character for Kent Street to be categorised as a street having traditional character. Whilst the numerical superiority of post-1946 development in the street is a factor that I have considered, it is my observation of the visual prominence of post-1946 development which informs my view that the street generates an overall modern character.'[23]

[26] Council cautioned against adopting Mr McDonald's numerical analysis in ascertaining the character of the Street,[24] which involves comparing lots described as 'pre-1947 'timber and tin' in overlay' with the balance of the remaining lots within the Street.[25] This calculation results in a clear majority of what the Appellant asserts are to be characterised as 'modern character' dwellings which do not contribute to any traditional character of the Street.

[27] The Council, correctly, in my view, submits that lots on the Street which are not covered by the Traditional Building Character (Demolition) Overlay, and as such are not defined as 'pre-1947 'timber and tin' in overlay' for the purposes of Mr McDonald's numerical analysis, nonetheless contribute to the traditional character of the Street. These, it is said, are exemplified by numerous examples[26] of Dwellings, which, although not prevented from demolition by virtue of the Traditional Building Character (Demolition) Overlay, are not modern in character and display certain traits of traditional building character. Characteristics such as large backyards, building setbacks, traditional window hoods, two-wheel single track driveways and the use of traditional building materials are all elements which Council says add to the overall traditional character of the Street within the meaning of the Traditional Building Character PSP. Such elements are not accounted for simply by employing a numerical comparison between pre-1946 dwellings and the remaining buildings on the Street. But as I have said, Mr Scott did not solely rely upon on his numerical analysis to found his decision about the character of the Street.

[28] Council says that, if the numerical analysis included those properties exhibiting pre-1947 traditional character, though not within the Traditional Building Character Overlay, a more balanced distribution between modern and traditional character that would mean the street would fall within Mr McDonald's 'rare type of intermingled 'mixed character'". [27] In the result, I prefer the evidence of Mr Scott in characterising the Street as one of mixed character and find that is a fair and accurate characterisation.

[29] The Appellant relied on Leach v Brisbane City Council[28] which concerned the interpretation of the former demolition code under City Plan 2000, relevantly, expressed in substantially the same terms as the current Demolition Code under City Plan 2014. In Leach, an issue for determination was whether the relevant street exhibited traditional character within the meaning of the code. On this issue, a question was raised as to whether the street in question could be divided into segments, with each exhibiting different characters. In this respect, the Court said:

'Accepting that a street may exhibit more than one character as I have said, does that mean that the "street" identified for the purpose of interpretation of the Demolition Code can have more than one character? I think not. The term "character" is defined as - "the aggregate of features and traits that form the individual nature of some person or thing" (underlining in the definition). A street may well contain houses of various styles. But to determine the visual character of the street, it seems to me one character has to be identified reflecting the aggregate of is features or traits as above defined. P1 speaks of the character of the street not the character of various segments of the street. Put another way, in determining the street's character for the purposes of P1, 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.'[29]

[30] This is not to say that it is not possible for a street to exhibit mixed character, as I have found. The authorities on this issue recognise that a street may be deemed to be of mixed character. What is highlighted in Leach is the notion that, in interpreting the Demolition Code, a single character must be identified in respect of the entire street, be that modern character, traditional character, or mixed character. It is not permissible to argue that part of a street exhibits modern character while other sections or pockets display traditional character. As in Leach, the task is to determine the visual character of the street as a whole. 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. The characterisation may be equated to a mixed breed dog, which although comprises a combination of two separate canine breeds, nevertheless remains an animal of mixed breed.

[31] Consistent with the test in Lonie v Brisbane City Council[30], I consider that as one ambles along this relatively short, flat and straight Street, there would be no, or virtually no point at which the ambler, taking in both sides of the Street (as I consider the average pedestrian walking and observing the Street does), would not have within view both modern character dwellings as well as buildings, such as the Dwelling, which exhibit traditional character.

[32] The Council referred to Se Ayr Projects Pty Ltd v Brisbane City Council[31] also concerning assessment under Demolition Code. As with the present appeal, of particular relevance were Performance Objective PO5 and Acceptable Outcome AO5, relating to the demolition or removal of a building constructed in 1946 or earlier. Whilst I am hesitant to draw any particular analogy with different sites, in that decision, this Court concluded that the predominance of modern character buildings did not rob the subject street of any meaningful traditional character. His Honour Judge Rackemann DCJ, in finding that the streetscape was of mixed modern and traditional character, said:

'[36] Within that mixed streetscape, there are a significant number of buildings of a non-traditional character kind, but the visual character of the street is benefitted by the presence of a significant number of houses built in 1946 or earlier.'

[33] In my view, the Street under consideration can similarly be characterised as exhibiting mixed character comprising both traditional and modern character buildings. The traditional character element is exemplified by both those properties such as the Dwelling, covered in the Traditional Building Character (Demolition) and those with the various elements of other pre-1947 properties which retain sufficient traditional character. They all contribute to the overall character of the Street. It follows, in my view, it cannot be correctly said that the subject Dwelling, 'is in a street that has no traditional character', to adopt the precise wording of Acceptable Outcome AO5(d). The Application does not satisfy Acceptable Outcome AO(5)(d) of the Demolition Code.

AO5(c) - Development involves a building which if demolished will not result in the loss of traditional building character

[34] The heritage experts have agree the Dwelling expresses some degree of traditional building character within the meaning of the Traditional Building Character PSP.[32] What is in dispute, is the nature and extent of the Dwelling's traditional building character relevant to assessment against Acceptable Outcome AO5(c) of the Demolition Code. The Appellant submits that those parts of the Dwelling visible to an outside observer have been unsympathetically altered with the result it now presents as having diminished traditional building character. Hence, the Appellants say the quantum of the loss of traditional character, for the purposes of AO5(c), that would result from the building's demolition is smaller than if the building had not been previously altered.[33]

[35] Mr Scott, for the Council, gave evidence to the effect that the Dwelling exhibited strong traditional character within the Street. His view is expressed in the Joint Report of Expert Heritage Architects in these words:

'Mr Scott is of the opinion that demolition of the subject building would result in the loss of traditional building character because:

(c) The subject building expresses its Interwar, multi-gabled, traditional character strongly, supported by three other gabled character houses immediately to its west.

(d) The subject building contributed positively to the visual character of the street such that its demolition or removal would be a meaningful and significant loss to the traditional character of the street.'[34]

[36] Despite the somewhat mandatory language of AO5(c), it has previously been held that, for the purposes of assessing compliance with the code, the loss of traditional building character must be significant, concerning or unacceptable, rather than simply amounting to any loss at all.[35] In Se Ayr v Brisbane City Council[36], the Court said:

'[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]).'

[37] The Appellant relies upon the evidence of Mr McDonald, who considers the house sits within 'the lower acceptable range of the code's meaning of traditional character.'[37] On that basis, the Appellant says the Court would be satisfied that demolition would not result in the loss of traditional building character to an extent sufficient to offend AO5(c).

[38] Council makes the point that neither the Demolition Code nor the higher order provisions of City Plan 2014 require the Court to formulate a ranking or hierarchy of traditional building character as is suggested by Mr McDonald by his use of the phrase 'lower acceptable range'. Put another way, given AO5(c) speaks only of 'the loss of traditional building character', the Demolition Code does not envisage buildings being positioned on a spectrum or sliding scale of traditional building character.

[39] Whether one speaks of spectra or quantum, in my view it is well settled in law that for the purposes of the Demolition Code, the loss of traditional building character must be of such a nature and extent to be concerning, meaningful or significant. As was recently said by His Honour Judge Jones DCJ in Hamilton v Brisbane City Council[38],

'It is equally well established now that insofar as AO5(c) is concerned, the relevant loss of traditional building character has to be one that is meaningful or of significance'[39]

[40] In determining whether, if the Dwelling was demolished, there would be a resultant loss of traditional character that is significant, concerning or unacceptable, the extent of traditional character which would be lost by the proposed demolition informs that decision.

[41] I am not satisfied that the Dwelling house has been substantially altered so as render the corresponding extent of the loss of traditional character as insignificant. As was said in Unterweger v Brisbane City Council[40] alterations to a Dwelling do not necessarily deprive a building of its traditional building character. Whether such alterations amount to a loss of traditional building character is a question of fact and degree to be assessed in each case. There it was also said that it is not necessary that the street or the dwelling be 'pristine', 'remarkable', 'unique' or have 'architectural merit' for demolition to be refused. [41]

[42] Mr McDonald, for the Appellant considers the following alterations, described as 'unsympathetic alterations', have been made to the Dwelling:

a) The enclosure of the front and side verandahs with subsequent removal or original balustrades and decorative detailing;

b) The loss of the original house form of a single-level house supported on stumps with batten infill panels by the enclosure underneath with fibro walls;

c) The replacement of the original front stairs with modern steel stairs; and

d) The addition of a flat-roofed side garage.[42]

[43] But notwithstanding these alterations, Mr McDonald agreed the Dwelling still represents traditional building character[43] and acknowledged that 'the unsympathetic alterations...have not affected the subject buildings roof's form, roof materials or upper level external cladding to an extent where the building could no longer be reasonably regarded as expressing traditional building character' [44]

[44] In cross-examination, Mr McDonald accepted that the Dwelling retained the following traditional character features, identified by Mr Scott[45]:

1. interwar Californian Bungalow influenced style with multiple battened gables in its roof form visible from the street, typical of 1920 and 30s houses;
2. a roof form that includes gables and hips, ridges and valleys typical of this style of traditional Queensland style house and related to the three traditional houses immediately to the west of the subject house;

1. pained weatherboard clad walls on a timber frame, elevated above the ground on traditional stumps with ant caps;

1. a traditional height above the ground with a modern front stair in much the same place as a traditional front stair would be expected;
2. an area that is identifiable as the formerly opened front verandah to the left hand front of the house (as seen from the street) and formerly open side verandah to the right hand side, although the verandahs are now enclosed with timber casement windows (for the front verandah) and timber sliders (for the side verandah). This area appears to be readily openable;
3. front stairs that access an area identifiable as the formerly open front verandah, with an entry gable over on the left hand side of the front elevation;
4. a traditional solid balustrade with batter insert, which is still visible on the right hand side verandah;
5. traditional casement windows in banks of two or three under timber framed and decorated window hoods to the front and western side of the house;
6. a roof clad in corrugated iron sheeting in short lengths with decorative barge boards, battened gables, raking eaves etc., which in combination with decorated winder hoods and the (formerly) open verandahs with solid balustrades and batten inserts cast shadows and provide three dimensional effects, deduce building bulk and form and transition with the external landscape;
7. traditional features, as identified above, that make an appropriate response to the local climatic conditions of strong sun and high rainfall;
8. a set-back from the street of similar distance to that of the traditional western neighbours;

1. a front fence and pedestrian path to the front stairs and two single-width driveways with two wheel tracks; and

1. traditional side set-backs, similar to its traditional western neighbours.

[45] In my view, the alterations here have not resulted in the Dwelling losing its traditional building character to the relevant extent. Despite those changes, it nonetheless continues to exhibit significant traditional building character. In this regard, I prefer the evidence of Mr Scott. For the purposes of AO5(c), the demolition would, in my view, result in a significant and meaningful loss of traditional building character. The Application does not satisfy AO5(c) of the Demolition Code.

PO5(c) - Development involves a building which does not contribute positively to the visual character of the street

[46] Before considering Performance Outcome PO5(c), I consider it necessary to draw a distinction between PO5(c) and AO5(c). It could be that demolition of a dwelling would result in the meaningful, unacceptable or significant loss of traditional building character so as to offend AO5(c), but that would not be necessarily determinative of compliance with PO5(c). In other words, the fact a proposal offends AO5(c) will not necessarily mean it offends PO5(c). One can well imagine a situation of a pre-1947 traditional character dwelling in a street dominated by the surrounding modern character homes. To demolish it would clearly offend AO5(c) in the sense that the demolition would result in significant loss of traditional building character. However, in a street which is so manifestly dominated by modern character buildings, where the traditional character dwelling stands alone, it may not be easily said that it is contributing to the visual character of the street. Accordingly, PO5(c) would, in such an instance, be satisfied.

[47] Turning now to consideration of the subject Dwelling and PO5(c), in Marriott v Brisbane City Council[46], Her Honour Judge Bowskill DCJ held;

"In my view, what is intended by the word 'positively' is that there is a contribution which is favourable that is it adds to the visual character of the street as opposed to being neutral (or, for that matter, detracting from it)"[47]

[48] Expanding on this expression, His Honour Judge Rackemann DCJ in Se Ayr v Brisbane City Council[48] [2016] QPELR 225 said;

"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."[49]

[49] As to PO5(c), Mr McDonald expressed the view that the average person walking along the Street would not obtain much satisfaction from the subject building itself or from its contribution to the post-1946 visual character of the Street.[50] He considers the Dwelling is not consistent with the Street's predominant and overall character and does not contribute positively to the actual visual character of the street so that its demolition would not offend PO5(c).[51] That view is premised on the following:

a) The traditional building character of the building is of a low order; and

b) The Street does not have traditional building character, but rather modern character dominated by a predominance of post-1946 buildings.

[50] I have already found that the Dwelling has not been unsympathetically altered so as to render the potential loss of traditional building character insignificant and that the character of the Street is properly characterised as exhibiting a mixed character of modern and pre-1947 traditional building character.

[51] In Lucas v Brisbane City Council[52] His Honour Judge Dorney QC said:-

"But what does the onus to establish that the building does not "contribute positively" mean in circumstances where there is no clearly significantly predominant identifiable character? It is only if one can characterize the visual character as a significantly predominant one and, thereby, exclude the fact that there is any realistic coexisting character at all which has anything of significance to do with a pre-1946 character that one could conclude that it did not contribute positively to that."

[52] Given I have found the Street exhibits mixed traditional and non-traditional building character, consistent with the Court's approach in Lucas, I cannot conclude that the subject Dwelling does not contribute to this mixed character. It does, and though it has a majority of modern character buildings, their presence does not extinguish the aspect of traditional character displayed by the Street. The subject Dwelling contributes positively to the traditional character within the mixed character of the Street.

[53] In Leach & Ors v Brisbane City Council[53] relied upon by the Appellants, the issue was whether a proposed demolition complied with performance criterion in substantially the same terms as PO5(c). In concluding that the subject dwelling did not contribute positively to the character of the street, the Court said:

"The street has in my view moved well away from the traditional character it manifested in 1946. Today its character is of a modern nature notwithstanding there remain a small number of houses of a traditional building character two of which are the subject houses." [54]

[54] But that is not the case here. The Street under consderation cannot be regarded to have moved 'well away from the traditional character it manifested in 1946'. In my view, the visual character of the Street, being of mixed character, is enhanced by the presence of a significant number of other houses built in 1946 or earlier.

[55] The traditional building character elements of the subject Dwelling contribute to the visual character of the Street and are easily observable from the Street. In this regard, I accept the evidence of Mr Scott, who states:

'The Interwar style traditional character of the subject house with its three battened gables to the street is a distinctive and highly recognisable traditional form in the street and its setting is traditional, supported by other traditional houses in the street.'[55]

[56] Given that positive visual contribution to the traditional character aspect of the Street, Performance Outcome PO5(c) is not satisfied.

[57] From my findings, the proposal does not satisfy Acceptable Outcome AO5(d), Acceptable Outcome AO5(c) or Performance Outcome PO5(c). It follows that the dwelling should be protected as envisaged by Overall Outcomes 2(a) and 2(d) of the Purpose of the Code. The Appeal is dimissed.

2. I will hear the parties on any necessary consequential orders.

Decision Notice - Extracted from Notice of Appeal dated 25 June 2015

8. The reasons given by the Respondent in the Decision Notice for refusing the Application were as follows:

1. "The proposed demolition does not comply with AO5(a) of the Traditional building character (demolition) overlade code because:

a. The dwelling is identifiable as being constructed prior to 1946;

b. The dwelling retains its form and shape with gable/hipped roof and detailing including window hoods and decorative elements

c. The dwelling is clearly evident in the 1946 aerial photographs; and

d. The upgrades that have been made over time are not considered to have removed the traditional building character which is still evident and is clearly seen from the street. It has not been "substantially altered".

2. The proposed demolition does not comply with AO5(b) of the Traditional building character (demolition) overlay code because:

a. There appears to be no apparent structural issues;

b. No representations have been made claiming that the building is structurally unsound; and

c. There is no evidence to suggest that the building is structurally unsound and not reasonably capable of being made structurally sound;

3. The proposed demolition does not comply with AO5(c) of the Traditional building character (demolition) overlay code because:

a. The existing pre-1945 house is of timber construction and continues to display traditional building character in built form, scale and materials such as gabled/hipped roof and detailing, nest porch, 'sleep-out', window hoods, weatherboard cladding and timer [sic] framed casement windows;

b. The existing dwelling has the traditional building form of a single level house elevated on a base;

c. The existing dwelling continues to reflect architectural themes present before 1946, contributes positively to the visual character of Kent Street and allows for a continued reading of traditional building character;

d. If the existing house were demolished, its traditional building character elements would be lost; and

e. Its removal would result in a loss of traditional building character within the street as it continues to uphold pre-1946 architectural themes within the streetscape.

4. The proposed demolition does not comply with AO5(d) of the Traditional building character (demolition) overlay code because:

a. Kent Street comprises of a relatively strong character streetscape of existing pre-1946 houses including the subject site;

b. There are other houses in the street exhibiting strong traditional character elements such as pitched gabled roofs, timber weatherboard cladding, timber framed casement windows, elevated base and decorative detailing. These houses include 74, 76 and 78 Kent Street and 82, 84 and 86 Allen Street;

c. The subject dwelling is one of a group of 4 character houses in a row;

d. These pre-1946 houses contribute to the streetscape and allow for a continued reading of traditional building character; and

e. The subject dwelling is viewed in context with its immediate neighbours in maintaining and representing a traditional building character streetscape in building form, scale and detail;

5. The proposed demolition does not comply with PO5 of the Traditional building character (demolition) overlay code because:

a. Kent Street comprises of a relatively strong character streetscape of existing pre-1946 houses including the subject site;

b. The existing pre-1946 house is of timber construction and continues to display traditional building character in built form, scale and materials such as gabled/hipped roof and detailing, nested porch, 'sleep out', window hoods, weatherboard cladding and timber framed casement windows;

c. The existing dwelling has the traditional building form of a single level house elevated on a base;

d. The existing dwelling continues to reflect architectural themes present before 1946, contributes positively to the visual character of Kent Street and allows for a continued reading of traditional building character;

e. If the existing house were demolished, these traditional building character elements would be lost as it continues to uphold pre-1946 architectural themes within the streetscape;

f. There are other houses in the street exhibiting strong traditional character elements such as pitched gabled roofs, timber weatherboard cladding, timber framed casement windows, elevated base and decorative detailing. These houses include 74, 76 and 78 Kent Street and 82, 84 and 86 Allen Street;

g. The subject dwelling is one of a group of 4 character houses in a row;

h. The subject dwelling is viewed in context with its immediate neighbours in maintaining and representing a traditional building character streetscape in building form, scale and detail;

i. There appears to be no apparent structural issues;

j. No representations have been made claiming that the building is structurally unsound; and

k. There is no evidence to suggest that the building is structurally unsound and not reasonably capable of being made structurally sound.

6. The proposed demolition does not comply with point (2)(a) of the purpose of the Traditional building character (demolition) overlay code because:

a. The proposed demolition does not protect the existing residential building on the subject site that was constructed prior to 1946.

7. The proposed demolition does not comply with point (2)(d) of the purpose of the Traditional building character (demolition) overlay code because:

a. The pre-1946 dwelling forms an important part of the streetscape and is not protected through the proposed development."

SC6.3 Traditional building character planning scheme policy

The planning scheme policy provides guidance or advice about satisfying an assessment criteria which identifies this planning scheme policy as providing that guidance or advice.

This planning scheme policy provides guidance on the elements that comprise traditional character and traditional building character identified in the Traditional building character (demolition) overlay code and Traditional building character (design) overlay code.

2 Traditional character and traditional building character

(1) The traditional character of areas and the traditional building character of buildings, within the Traditional building character overlay, is a combination of one or more of the following elements:

(2) The component elements of traditional character or traditional building character vary in the context of demolition or new development including extensions.

(1) The predominant traditional building character of dwelling houses constructed in 1946 or earlier, often referred to generically as the Queensland vernacular, usually comprises:

(a) a core with attached or integrated verandahs raised above the ground on timber supports which are now often replaced with concrete or steel stumps or steel beams;

(b) enclosed areas under the dwelling house that generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor entrance and verandahs;

(c) roof forms of medium pitched pyramids, hips or gables (refer to Figure a).

(2) Building form can detract from the character of the street if it conflicts with:

(a) the relationship between floor and ground levels;

(b) the traditional concept of lightweight verandahs attached to solid core;

(c) the established pattern of roof shape and pitch.

(3) Other traditional building character forms exhibit overseas architectural influences on Brisbane's residential design. These forms occurred primarily during the inter-war period and are often influenced by but not limited to art deco, Spanish mission, Californian bungalow and Georgian. These forms comprise traditional building character where the site is located in the Character residential zone, but are not applicable in the Low-medium density zone.

2.3 Traditional elements, detailing and materials

(1) The traditional character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens, balustrades and batten panels that cast shadows and provide three-dimensional effects. These lightweight external elements:

(c) make an appropriate response to the local climatic conditions of strong sun and high rainfall.

(2) The traditional character of a street can be diminished by styles that do not incorporate shade-forming elements and that present a flat facade to the street. These styles also have poor environmental qualities.

(3) Traditional 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 and terracotta tile roofing.

(4) Whilst 'timber and tin' are the predominant materials of the older suburbs, the presence of other distinctive traditional building character forms, such as Spanish mission, and the variety of materials highlights the overseas influence on residential design in Brisbane and is an integral part of the traditional building character. These styles usually incorporate face brick or rendered walls on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof. These elements, detailing and materials comprise traditional building character where the site is located in the Character residential zone, but are not applicable in the Low-medium density zone.

(1) The traditional scale of a street was first established by its subdivision pattern of 16, 24 or 32 perch lots, with 10m, 15m or 20m frontages respectively. This pattern was reinforced by the traditional building form of a single-level dwelling house elevated on stumps. This created a reasonably uniform scale, accentuated by consistent stepping of the levels of adjoining dwelling houses in Brisbane's hilly suburbs, and by uniform spacing between dwelling houses in the flatter suburbs.

(2) The traditional scale of a street can be diminished if buildings are introduced that:

(a) significantly exceed the surrounding building height; or

(b) present large unarticulated facades to the street; or

(c) interrupt the rhythm of stepping roof lines in a sloping street.

(3) Scale can also be affected by introducing buildings or lots that are significantly smaller than the prevailing size of dwelling houses and subdivision pattern. Two narrow buildings can be combined with a common boundary to give a single building form under a unified roof consistent with the traditional setting and scale of dwelling houses constructed in 1946 or earlier in the street (refer to Figure b).

(1) The traditional setting of dwelling houses in the older suburbs is a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and single width driveway.

(2) The setting of new buildings can detract from the character of a street if orientation or setbacks conflict with traditional settings or if garages dominate.

(3) Setbacks, particularly to existing or proposed side boundaries, complying with the relevant residential codes are consistent with the character of older suburbs.

[1] Pursuant to section 461(1)(a) of the Sustainable Planning Act 2009 (Qld).

[2] It is agreed that in relation to the Racecourse Precinct Neighbourhood Precinct Plan there are no specific demolition provisions which relate to the subject site. This is confirmed at paragraph 6 of the Joint Report of Expert Heritage Architects.

[3] Sustainable Planning Act 2009 (Qld), section 493(1).

[4] Submissions of the Appellant, paragraph 5; Submission on behalf of the Respondent, paragraph 21.

[5] Joint Report of Expert Heritage Architects, paragraph 7.

[8] Submissions of the Appellant, paragraph 9.

[9] Joint Report of Expert Heritage Architects page 2, paragraphs 8-9.

[10] City Plan 2014, section 5.3.3 Determining the assessment criteria

[11] 5.3.3(1)(c)(iii)(A) of City Plan 2014.

[12] SC6.30 Traditional building character planning scheme policy, 2.1 Introduction.

[13] [2012] QPELR 335; [2011] QPEC 134.

[14] [2012] QPELR 335; [2011] QPEC 134 at [10].

[15] Joint Report of Expert Heritage Architects, paragraph 13.

[16] Submissions on behalf of the Respondent, paragraph 50; Submissions of the Appellant, paragraph 12.

[17] Joint Report of Expert Heritage Architects, paragraph 15.1.

[18] Statement of Mr McDonald, paragraph 4.9.

[19] Statement of Mr McDonald, paragraph 4.8.

[20] Joint Report of Expert Heritage Architects, paragraph 15.2.

[21] [1998] QPELR 209.

[23] Statement of Mr McDonald, paragraph 4.17.

[24] Submissions on behalf of the Respondent, paragraph 52.

[25] Statement of Mr McDonald, Appendix 1.

[26] Submissions on behalf of the Respondent, paragraph 54.

[27] Statement of Mr McDonald, paragraph 4.9.

[28] [2011] QPEC 55; [2011] QPELR 609.

[29] [2011] QPEC 55; [2011] QPELR 609 at [34].

[30] [1998] QPELR 209 at 212.

[31] [2016] QPEC 3; [2016] QPELR 223.

[32] Joint Report of Expert Heritage Architects, paragraph 8.

[33] Statement of Mr McDonald, paragraph 5.5.

[34] Joint Report of Expert Heritage Architects, paragraph 14.2.

[35] Lynch v Brisbane City Council [2010] QPEC 137, 13. See also Unterweger v Brisbane City Council [2011] QPEC 134, [29].

[36] [2016] QPEC 3; [2016] QPELR 223.

[38] [2016] QPEC 28.

[40] [2012] QPELR 335; [2011] QPEC 134 at [10].

[42] Statement of Mr McDonald, paragraph 3.6.

[43] Statement of Mr McDonald, paragraph 3.5.

[44] Statement of Mr McDonald, paragraph 3.7.

[45] Statement of Mr Scott, paragraphs 2.01 - 2.03.

[46] [2015] QPEC 45.

[48] [2016] QPELR 225.

[50] Statement of Mr McDonald, paragraph 5.16.

[51] Statement of Mr McDonald, paragraph 5.17.

[52] [2015] QPEC 25.

[53] [2011] QPEC 55; [2011] QPELR 609.

[55] Statement of Mr Scott, paragraph 2.03.