Mariott v Brisbane City Council

"(a) Implement the policy direction in the strategic framework, in particular:

(i) Theme 2: Brisbane's outstanding lifestyle and Element 2.1 - Brisbane's identity;

(ii) Theme 5: Brisbane's CityShape and Element 5.5 - Brisbane's Suburban Living Areas.

(b) Provide for the assessment of the suitability of building work for the demolition, removal or repositioning of a building or structure if any part of the building or structure was substantially constructed in 1946 or earlier, in the Traditional building character overlay."

[7] The strategic outcomes for theme 2 ("Brisbane's outstanding lifestyle") are set out in section 3.4.1 of the strategic framework in CP2014, and include, relevantly:

"(b) Brisbane is defined by the visual markers and amenity created by a visually dominant City Centre, concentrated centres along transport corridors, the Brisbane River, major hills and valleys, bushlands and open space, traditional character suburbs, mature urban vegetation and the bay and bayside areas and islands. Brisbane's neighbourhoods each express their individual identity.

(c) Brisbane has locations within the city which have cultural heritage significance to a broad range of groups and individuals. Character housing provides a link with Brisbane's history and helps to reinforce a strong sense of place and community identity. Brisbane's character elements and built cultural heritage are appreciated, protected and managed..."[5]

[8] Element 2.1 ("Brisbane's identity") is addressed in table 3.4.2.1. Relevantly, one of the specific outcomes (SO20) is that "Brisbane's distinctive suburban identity is reinforced by its character housing precincts". The corresponding land use strategies include:

"L20.1 Character buildings built in 1946 or before are protected via overlays.

L20.2 Development proposals maintain the traditional building character housing that individually and collectively contributes to the distinctive character of the area and streetscape."

[9] The strategic outcomes for theme 5 (Brisbane's CityShape) are set out in section 3.7.1. Relevantly, that includes "Brisbane's Suburban Living Areas", which is expressed to include "areas of character housing and commercial character buildings substantially constructed in 1946 or earlier" (section 3.7.1(1)(g)(iv)).

[10] Returning to the demolition code, section 8.2.21.2(2) provides that the purpose of the code will be achieved through a number of overall outcomes, which include, relevantly:

"(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.

(h) Development ensures that, in conjunction with the Traditional building character (design) overlay code, precincts of residential buildings constructed in 1946 or earlier are retained and redevelopment in those precincts complements the traditional building character of buildings constructed in 1946 or earlier."[6]

[11] Guidance on what "traditional character" and "traditional building character" mean in this context can be found in the traditional building character planning scheme policy (SC6.30).[7] As paragraph 2.1(1) of SC6.30 explains, "[t]he 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:

• (a) traditional building form and roof styles;[8]
• (b) traditional elements, detailing and materials;[9]
• (c) traditional scale;[10]
• (d) traditional setting."[11]

[12] The performance and acceptable outcomes for the purposes of assessment under the demolition code are set out in table 8.2.21.3, the relevant part of which is in the following terms:

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

(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.[12]

[13] Each of the appellant and the respondent retained heritage architects to provide opinions to assist the Court in resolving this appeal: Mr Ivan McDonald and Mr Malcolm Elliott, respectively.

[14] Mr McDonald and Mr Elliott prepared a joint expert report dated 6 May 2015 (JER). Mr McDonald also prepared a statement of evidence, dated 16 July 2015, and both Mr McDonald and Mr Elliot gave evidence at the hearing.

[15] There are a number of respects in which there is agreement between the experts, namely:

• (a) The subject house was built prior to 1946.[13]
• (b) Only performance outcome PO5 is applicable.[14]
• (c) The subject house "expresses traditional building character" within the meaning of the Traditional building character planning scheme policy, and accordingly PO5(a) and AO5(a) are not applicable.[15]
• (d) The subject house is structurally sound and/or capable of structural repair, and accordingly PO5(b) and AO5(b) are not applicable.[16]
• (e) Therefore, only PO5(c), and AO5(c) and (d) are applicable.[17]
• (f) In terms of the overall outcomes identified in section 8.2.21.2(2), only outcomes (a) and (d) are applicable.[18]
• (g) The "extent of the relevant street, streetscape and area for this matter is the length of Sydney Street east of Gympie Road and extending to the Rode Road intersection but excluding Nos. 364 & 370-372 Rode Road".[19]

[16] As a consequence of the matters agreed, a number of the grounds of appeal are not pressed (namely, grounds 9(a), (d), (h), (i) and (j)).[20]

[17] Accordingly, the grounds on which the appellant maintains the application ought to have been approved by the respondent are:[21]

"(b) The Application complies with Acceptable outcome AO5(c) of the code as the demolition of the Dwelling will not result in the loss of traditional building character as the character of the Dwelling has been significantly diluted by unsympathetic post war changes and no longer contributes to any traditional building character in the street.

(c) The Application complies with Acceptable outcome AO5(d) of the Code as the street the Dwelling is located on has no traditional character as the majority of the dwellings in the street are small lot post-war dwellings.

(e) The Application complies with Performance outcome PO5(c) of the Code as the Dwelling does not contribute positively to the visual character of the street as the Dwelling has been unsympathetically altered and the character of the streetscape has already been significantly eroded.

(f) The Application complies with paragraph 2(a) of the Purpose of the Code as the Dwelling does not contribute to giving the area any traditional character or traditional building character.

(g) The Application complies with paragraph 2(d) of the Purpose of the Code as the Dwelling does not form an important part of the streetscape.

(k) To the extent that the Application does conflict with the Planning Scheme, which is not admitted, there are sufficient grounds to justify the approval of the Application notwithstanding the conflict."

[18] The issues to be determined on this appeal therefore are:

• (a) whether the subject house is a building which, if demolished, will not result in the loss of traditional building character (AO5(c));
• (b) whether the subject house is in a street that has no traditional character (AO5(d)); or
• (c) whether the subject house is a building which does not contribute positively to the visual character of the street (PO5(c)).

[19] In terms of the relationship between preferred outcomes and acceptable outcomes, the corresponding acceptable outcomes describe the preferred way of achieving the performance outcome.[22] 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 section 5.3.3(c)(iii) of CP2014, the purpose and overall outcomes are complied with, and, in turn, the code is complied with.[23]

[20] The relevant context is the house as it presently stands, in its context in Sydney Street.[24] The Court had the advantage of a view, which of course is not evidence but merely an aid to understanding the evidence.

[21] The house is, fairly in my view, described in [3.2] and [3.3] of Mr McDonald's statement of evidence as follows:

"The subject building is a detached, high-set, timber-framed and weatherboard-clad house with a hip and gable roof form at medium pitch and sheeted in corrugated steel roofing. The house is generally supported on a modern brick base and is otherwise clad over the full 2-storey height of the building with weatherboards. It is assumed that the house originally sat on timber stumps. Windows are predominantly modern single-pane, timber casements with modern aluminium sliders to the front. The roof has a continuous eaves overhang with timber fascias and Quad-profile guttering. The original front and side verandahs have been enclosed and a modern front patio has been added with a flat roof, concrete floor slab and curved steel stairs.

The subject building is sited on its lot with a front setback and orientation broadly consistent with other houses in Sydney Street. A single-width driveway extends out from the front of the house and the site incorporates a basic front garden."[25]

[22] Although agreeing with Mr Elliott that the building continues to express traditional building character for the purposes of the planning scheme policy, Mr McDonald identified a number of "unsympathetic" alterations to the building, which lead him to express the view that the house "would sit within the lowest acceptable range of the code's meaning of traditional building character".[26] The alterations are described in [3.6] of his statement of evidence as follows:

• the enclosure of the front and side verandahs with subsequent removal of original balustrades and decorative detailing;
• the loss of the original house form of a single-level house supported on stumps by the enclosure underneath with brick walls and 2-storey cladding;
• the removal of original windows and replacement with modern window assemblies;
• the replacement of original window hoods with modern window hoods
• the addition of another 'front verandah' layer by the addition of a modern, flat-roofed, concrete and steel front patio;
• the replacement of the original front stairs with a modern curved concrete and steel stair.

[23] The fact of these alterations, and that they are not particularly sympathetic, was not in issue. However, whether it is appropriate to say there is a "range" in terms of the code's meaning of traditional building character, and, in any event, the relevance of that to the assessment required under PO5(c), AO5(c) and (d) was disputed (with Mr Elliott disagreeing with Mr McDonald on both accounts).

[24] Sydney Street runs east from its intersection with Gympie Road, parallel to and immediately south of Rode Road, until at its eastern end Sydney Street turns north forming an L shape which intersects with Rode Road.

[25] Sydney Street contains 57 properties, comprising:

• (a) 8 pre-1946 traditional houses within the overlay (including the subject building), at numbers 36, 40, 44, 47, 49-53, 55, 57 and 59 Sydney Street;
• (b) 4 pre-1946 traditional houses not in the overlay at numbers 13, 18, 20 and 58 Sydney Street;
• (c) 2 vacant lots at number 10 Sydney Street and number 589 Gympie road;
• (d) 1 large modern commercial building at No. 561-565 Gympie Road;
• (e) 3 backyards to post-1946 Bristol Road properties, at numbers 5, 7 and 9 Bristol Road;
• (f) 1 post-1946 block of flats at 30-32 Sydney Street;
• (g) 38 post-1946 houses.[27]

[26] Photographs of the various properties appear in appendix 1 to Mr McDonald's statement of evidence, and also in exhibit 2, a supplementary document prepared by Mr Elliott. Exhibit 2 also includes a useful plan of Sydney Street, showing where these various properties are located, albeit that Mr Elliott divides the 38 post-1946 houses into those with what he describes as "traditional building character" elements, and those without.

[27] There do not appear to have been any objectors to the application, but this does not have a bearing on the task of assessing the development application against the demolition code.[28]

[28] In Unterweger v Brisbane City Council [2011] QPEC 134 (Unterweger) at [10] Rackemann DCJ summarised a number of principles established in earlier cases dealing with previous iterations of the demolition code. Relevantly to the issues in this appeal, those principles include:

"(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;[29]

(b) it is not necessary that the street or the dwelling are 'pristine' in order for demolition to be refused;[30]

(l) it is relevant to enquire whether the street in question has been robbed of its traditional character by the extent of redevelopment".[31]

[29] In addition, as a matter of general principle, the demolition code is to be construed broadly and in a common sense way which best achieves its purpose and objects, 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.[32]

[30] Since the acceptable outcomes describe the preferred way of achieving the performance outcome, it seems logical to consider AO5(c) and (d) first, then consider PO5(c), although as will become apparent, aspects of the evidence in relation to PO5(c) (such as the visual character of the street) are relevant to the matters to be considered under AO5(c) and (d).

Whether the subject house is a building which, if demolished, will not result in the loss of traditional building character (AO5(c))

What is the relevant area of assessment for the purposes of AO5(c)

[31] As Wilson SC DCJ observed in Ken Ryan at [20], "... it is plain the Code is not intended to prohibit demolition simply because a building presents with traditional character ...".

[32] But the wording of AO5(c) begs the question: loss of traditional building character from what? The (relevant) street? A broader area, comprising a number of streets within the relevant part of the overlay? Or perhaps a narrower area, such as the part of the street covered by the overlay (in this case, that is limited to the 8 houses in the middle part of Sydney Street, at numbers 36, 40, 44, 47, 49-53, 55-55A (the subject house), 57 and 59).

[33] As already noted, in the JER at [14] it is recorded that the "experts agree that the extent of the relevant street, streetscape and area for this matter is the length of Sydney Street east of Gympie Road and extending to the Rode Road intersection but excluding Nos. 364 and 370-372 Rode Road". This is depicted in an aerial photograph which is figure 1, on p 3 of Mr McDonald's statement of evidence.

[34] However, it becomes apparent later in the JER that there is a difference of approach, as between Mr McDonald and Mr Elliott, as to what the "area under assessment" is: Mr McDonald retains the focus on the whole of the street, consistently with [14] of the JER;[33] but Mr Elliott focusses on a smaller section of the street, comprising that part of it in which the 8 properties currently covered by the overlay are situated.

[35] Mr Elliott explained, in his oral evidence, the rationale for his opinion, by reference to his understanding of the purpose of the demolition code, as articulated in section 8.2.21.2(a).

[36] Under the previous planning scheme[34] the corresponding "acceptable solution" (A1.3) referred to loss (of traditional building character or traditional "timber and tin" building character) within the demolition control precinct.[35] Prior to that, the provision had specifically referred to loss "within the street".[36]

[37] One assumes that there was a reason for drafting AO5(c) in its current form. There has plainly been a change, in so far as the current provision does not focus attention on the "overlay" (cf the focus on the demolition control precinct under the previous provision); nor expressly on "the street".

[38] A construction of AO5(c) as referring to loss from "the street" referred to in PO5(c) is supported by the relationship between those provisions, in the context of the demolition code more generally. As already observed, the acceptable outcomes are the preferred means of achieving the performance outcome. Here, the relevant performance outcome is that the building "does not contribute positively to the visual character of the street" (PO5(c)). One means of achieving that, in a manner consistent with the code (given its purpose), is where the house is in a street that has no traditional character (AO5(d)). Another means is where the building, if demolished, will not result in the loss of traditional building character (AO5(c)), relevantly, having regard to PO5(c), from the street.

[39] However, another reasonable view is that, in its current form, AO5(c) enables flexibility in terms of the relevant area of assessment, which may vary from case to case, depending on the circumstances. One circumstance where it may be considered appropriate to consider a broader area (not limited to the particular street, or part of it) is where the subject building is in a particular neighbourhood plan area, which is itself the subject of specific treatment under CP2014.[37] Conversely, and consistently with previous authorities, there may be circumstances where, for various reasons, the relevant street for the purposes of the assessment of PO5(c), AO5(c) and (d) will be something less than the entire length of a road or street. [38] Although, in the latter respect, the relevant part of the street has not been identified on the basis of isolating the part in which houses the subject of demolition control are located (but on the basis of a variety of other considerations).

[40] This flexible approach is supported by the purpose and overall outcomes of the code. Although it is buildings within the overlay which are protected by the demolition code, the interpretation and application of the provisions of the code, considered in the context of CP2014, invites consideration of a broader area (whether suburbs, or streets), which is apparent from the references to "traditional character suburbs",[39] maintaining "the traditional building character housing that individually and collectively contributes to the distinctive character of the area and the streetscape",[40] and protection of a pre-1946 building "where it forms an important part of a streetscape established in 1946 or earlier".[41]

[41] In this case, the alternatives posited, more so by the opposing opinions of the experts than by the legal submissions of the parties, are the whole of Sydney Street, or the part of Sydney Street in which the 8 houses covered by the overlay are located. This is not a case where emphasis was placed on the suburb as a particular "character suburb"; but rather on the street itself.

[42] The only provision which arguably supports the narrower approach (of focussing on the part covered by the overlay) is section 8.2.21.2(a) which identifies, as one of the overall outcomes of the demolition code, the protection of pre-1946 buildings that give the "areas in the ... overlay their traditional character and traditional building character".[42] However, in my view, the emphasised part of that provision would suggest that it is not intended to single out houses within a street that are covered by the overlay; but rather to focus attention on broader areas in the overlay (which may encompass several streets in some cases).

[43] In my view, when considered as a whole, the appropriate way to approach the assessment of PO5(c) and AO5(c) and (d) in this case is to consider the relevant street, and not simply that part of it which is within the overlay.

[44] Notwithstanding the Council's emphasis on the group of 8 houses in Sydney Street which are covered by the overlay (which reflects Mr Elliott's primary approach) the Council did not contend that, for the purposes of AO5(c), only the properties within the overlay are relevant. In its written submissions, the Council accepted that the entirety of the street, as identified in [14] of the JER, is appropriate to consider.[43]

[45] However, in relation to the group of 8 houses within the overlay, the Council:

• (a) described that group as a "precinct" of pre-1946 houses, which are covered in particular by overall outcome 2(h); and
• (b) submitted that the "obviously selective extent of the overlay within the subject street can only be interpreted as a deliberate planning intention that the traditional character which that precinct exhibits should comply with the relevant character preservation provisions of the planning scheme".

[46] It is by no means clear that this group of 8 houses in Sydney Street is appropriately described as a "precinct" for the purposes of the demolition code. There is no definition of the word in the code itself (nor does there appear to be a definition in CP2014 more generally). However, where the word appears elsewhere, it seems to refer to something more than a "group" such as this.[44] I note that neither of the experts identified overall outcome 2(h) as applicable in this case;[45] and also that non-compliance with overall outcome 2(h) was not a basis for the Council's refusal of the application.[46] Although not determinative, both those factors support the impression I have formed that it is not apt to describe the group of 8 houses in Sydney Street as a "precinct" for the purposes of the code. In any event, this does not alter the approach which I have found is appropriate to take to the assessment of the proposed demolition, in light of PO5(c), AO(c) and AO(d).

[47] Here, there is no apparent reason for considering a smaller section of Sydney Street than that which is identified in JER [14]. The only "segment" identified, by Mr Elliott, is the middle section where the 8 houses covered by the overlay are. For the reasons already given, I do not accept that as the correct approach to be taken to the assessment of whether there is conflict with any of PO5(c), AO5(c) or (d).

[48] Accordingly, I proceed on the basis that the relevant area of assessment is the whole of Sydney Street, as described in [14] of the JER.

Would demolition of the house result in the loss of traditional building character?

[49] The loss contemplated by AO5(c) is not an absolute. Consistently with authorities in relation to the equivalent acceptable solution A1.3 in CP2000, the appellant submitted that AO5(c) ought to be read as referring to loss that is "significant, concerning or unacceptable, rather than to any loss at all", referring to this Court's decision in Lynch at [13]-[15].[47]

[50] The Council did not argue strongly to the contrary, although did submit that, whilst it may be accepted that some qualifier is appropriate, the provision does not refer to a "significant" loss, and it could easily have done so. Further, the Council submitted the provision is to be construed in a manner which is consistent with the overall outcomes and the identified intent of the strategic framework, which do not suggest a generous approach is intended.

[51] The phrase which now appears in AO5(c) ("will not result in the loss of traditional building character") is identical to the phrase which appeared in A1.3 under the previous demolition code and which was considered by Robin QC DCJ in Lynch. In the circumstances, I cannot see any reason to adopt a different interpretation.

[52] Nevertheless, it is clear that it is not limited to loss that would "amount to the straw that would break the camel's back".[48]

[53] In the JER, Mr McDonald expressed the opinion that demolition of the subject building will not result in the loss of traditional building character because:

"a) the relevant area expresses a post-1946 building character generated by an overwhelming majority (approximately 86%) of post-1946 buildings and/or buildings not under demolition control.

1. the subject building is atypical of this post-1946 character of the area.

1. the remnant traditional building character evident in one isolated part of the area is not sufficient to generate an overall traditional building character in the area.

1. applied in the context of the overall area, the removal of the subject building would have a negligible and inconsequential impact on the remnant traditional building character of the area."[49]

[54] In so far as (a) is concerned, it is relevant to have regard to Mr McDonald's opinion regarding the visual character of the street, which he describes as exhibiting a predominantly modern character generated by post-1946 buildings.[50] Endeavouring to adopt the perception of an average person walking along the street and looking about,[51] in his statement of evidence Mr McDonald says:[52]

"The overall impression left in the mind from this traverse of the street [walking along Sydney Street from Gympie Road to Rode Road] is of a fleeting occurrence of traditional pre-1946 houses amongst a clear predominance of more modern buildings. The impression this leaves of the street's overall character is not one of a traditional character generated by a physical and visual predominance of pre-1946 buildings expressing traditional building character but of a much more modern character generated by a physical and visual predominance of post-1946 buildings.

The impression this leaves [traversing the street from Rode Road to Gympie Road] of the street's overall character is the same as for the west-east traverse which is of a modern character generated by a physical and visual predominance of post-1946 buildings."

[55] Mr McDonald concludes, at [4.13] and [4.14] of his statement of evidence:

"Expressed in numerical terms, the occurrence of properties with or without pre-1946 buildings identified in point 4.10 above is:

• properties with pre-1946 buildings - 12 out of 57 (or 21%)
• properties with post-1946 buildings or vacant land - 45 out of 57 (or 79%)

If one considers only those properties in the street with pre-1946 buildings under demolition control the occurrence is:

• properties with pre-1946 buildings under demolition control - 8 out of 57 (or 14%)
• properties without pre-1946 buildings under demolition control - 49 out of 57 (or 86%)

In summary, the visual character of Sydney Street is generated by a predominance of modern houses 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-1946 houses that remain under demolition control in the street is so diluted within the street that it fails to generate sufficient traditional character for Sydney Street to be categorised as a street having a traditional character. Instead, the numerical superiority and overall visual impression of the post-1946 development in the street generates an overall modern building character."

[56] His opinion expressed in the JER is reinforced in [5.2]-[5.6] of his statement of evidence, with the addition of the observation that because the subject house itself has diminished traditional building character (because of the unsympathetic alterations made to it), the quantum of loss of such character that would result from the building's demolition would be relatively small. Mr McDonald's point is not that the unsympathetic alterations mean the house no longer displays traditional building character; but rather that they result in the house presenting at the "lowest acceptable range" of traditional building character, and when assessing the potential loss of traditional building character if the house is demolished, it is relevant to have regard to that.

[57] Mr McDonald's evidence in this latter respect was the subject of criticism by the Council, because it reflected an opinion expressed for the first time in the statement of evidence, and not raised in the JER. The respondent submitted that little weight be put on Mr McDonald's opinion for this reason.[53] However, no objection was taken to the tender of Mr McDonald's statement of evidence, as part of exhibit 1. Mr Elliott had the opportunity to comment on it, and he did so. This aspect of Mr McDonald's evidence does not qualify the opinion otherwise the subject of agreement in the JER (that the house does express traditional building character, for the purposes of AO5(a) and PO5(a)). But in so far as Mr McDonald considers there is a range of traditional building character which may be expressed by various houses, depending on the alterations made to them, and that that might impact on AO5(c), it is a new matter not mentioned in the JER. However, given that both Mr McDonald and Mr Elliott are professionals, giving evidence of their expert opinions, and in circumstances where no objection was taken to the tender of the evidence, I can see no basis for giving this aspect of Mr McDonald's evidence any less weight.

[58] In any event, Mr McDonald's opinion in this regard, namely that it is relevant to take into account the altered appearance of the house in considering the equivalent of PO5(c) or AO5(c), is supported by authority, including:

• (a) Litbit in which Robin QC DCJ, found that demolition of the house (which was found to exhibit "traditional building character) would not result in the loss of traditional building character within the street, in circumstances where the traditional building character in the relevant section of the street was "relatively limited" and that "[e]ssentially, albeit with the loss of one structure, that same building character will remain; the subject house's current contribution to the streetscape is relatively poor, especially given its appearance of being unfinished and not habitable" (at [29]); and
• (b) Wallace in which Jones DCJ also factored in the altered appearance of a house (also found to represent "traditional building character"), in assessing its contribution to the visual character of the street (at [33]). In considering the equivalent of AO5(c), his Honour found that demolition of the house would not cause any loss of significance from the existing traditional building character in the relevant part of the street, and one of the factors relevant to that assessment was its minor contribution to the visual character of the street (see at [36]-[38]).

[59] Conversely, that alterations (unsympathetic or otherwise) might be reversible is not relevant to the enquiry.[54]

[60] The opposing opinion of Mr Elliott is that demolition of the subject building would result in the loss of traditional building character because:

"a) the relevant area under assessment for the purpose of the overlay code is limited to properties situated in Sydney Street which are currently included in the overlay. In this regard, the proportionate representation of post-1946 buildings situated outside of the overlay is not relevant to the assessment under the overlay code.

1. the subject building is typical of the pre-1946 character situated within the extent of the overlay currently mapped in Sydney Street.

1. the representation of traditional building character in Sydney Street for the purpose of the overlay code is limited to the eight (8) constituent properties in the street currently mapped within the overlay and includes the subject house.

1. applied in the context of the area actually subject to assessment under the overlay code, the removal of the subject building would have a tangible and adverse impact on the traditional building character currently evident in Sydney Street and correspondingly mapped in the overlay."[55]

[61] In contrast to Mr McDonald's assessment of the character of Sydney Street, Mr Elliott was of the opinion that the representation of traditional building character in the street is constituted by the 8 pre-1946 houses within the overlay, together with the 4 pre-1946 houses situated outside the overlay, and that this is the appropriate point of reference (regardless of whether this is the predominant character of the street otherwise).[56]

[62] For the reasons already given, I do not accept this as the correct approach.

[63] It was apparent from Mr Elliott's oral evidence that he viewed AO5(c) in fairly absolute terms: the house is representative of traditional building character; it is located in an overlay amongst other buildings of traditional building character; and therefore its removal would result in the loss of traditional building character.[57]

[64] When asked to consider his opinion in the context of the whole of Sydney Street, as described in [14] of the JER, Mr Elliott said that his opinion would be the same. As I understood his reasons, Mr Elliott considered this to be the case because, when analysing the street as a whole, in addition to the 8 pre-1946 houses within the overlay, and the 4 pre-1946 houses outside the overlay, a number of the post-1946 houses presented with what he described as "TBC elements", that is houses which incorporate elements that are complementary of or sympathetic to "traditional building character". On that analysis, Mr Elliott described Sydney Street as "a predominantly traditional street".[58] Although, he also seemed to accept that post-1946 buildings do not contribute to traditional building character.

[65] There is also a difficulty with Mr Elliott's alternative approach, when asked to consider the whole of the street, because of his characterisation of the post-1946 buildings as displaying "traditional building character" elements. In this regard, I refer to the following comment made by Robin QC DCJ in Lynch at [14] that:

"... one might note the philosophy of the Demolition Code which appears to be that a post 1946 building, however sympathetic, deserves no consideration on that account where its demolition is applied for and can be demolished as of right (perhaps to be replaced by something 'worse')."

[66] It cannot be correct that, in assessing whether demolition of a pre-1946 house will result in significant, concerning or unacceptable loss of traditional building character from the relevant street, the "loss" is to be measured against the post-1946 houses which are sympathetic to traditional building character; as opposed to considering the loss in terms of the actual traditional building character present in the street.

[67] On balance, I prefer the evidence of Mr McDonald on this point. His assessment of the character of Sydney Street accords largely with my own assessment, assisted by the view I had of Sydney Street. Starting at Gympie Road, the impression of Sydney Street is affected by the presence of a large yellow commercial building. As one moves along the street, the impression is very much of a mixture of housing styles, some old, some new and some very new. Of the old, that is a mixture of some "Queenslander" style houses, which may be identified by an average observer as pre-war (ie pre-1946), with many more "post-war" style houses. Of the new, they are a mixture of some which are sympathetic to traditional building character,[59] some modest lowset modern brick houses, and some very modern looking high-set houses.

[68] Sydney Street cannot be described as a "predominantly traditional street", bearing in mind "traditional" for the purposes of the code connotes houses constructed in 1946 or earlier. But in describing the street as predominantly "modern", as Mr McDonald does, that must be understood as meaning predominantly post-1946, as opposed to "modern" in a more contemporary sense, because there is a considerable presence of older style houses in the street. On that basis, I would agree with the characterisation of Mr McDonald.

[69] It is also fair to say that the subject house, because of the alterations to it (described in paragraph [22] above), does present quite differently to some of the surrounding pre-1946 houses (for example, the houses at nos. 49-53, 57, 36, 40 and 44 (which are in the overlay) and the house at no. 58 (which is not)) which express far more strongly the "traditional building character" elements described in the code.

[70] In my view, whilst Sydney Street could not be said to have been robbed entirely of any traditional character by the extent of the post-1946 redevelopment in the street, traditional building character is nevertheless not a significant, overwhelming or defining part of the character of the street. The traditional building character in the street is relatively limited, in particular to the group of 8 houses in the middle of it, as well as the houses at 58, 18 and 20 (which are not within the overlay); but their effect on the character of the street is diluted by the far greater surrounding post-1946 development. Moreover, the contribution of the subject house to the traditional character in the street is also diluted, because of its present appearance as a result of the unsympathetic alterations to it.

[71] In my view, having regard to the character of the street as a whole, and to the representation of traditional building character offered by the subject house to the street, the demolition of this house would not result in significant, concerning or unacceptable loss of traditional building character.

[72] I would therefore conclude that, in this case, AO5(c) is complied with.

[73] Since each of AO5(c), (d) and PO5(c) are alternatives, compliance with AO5(c) is sufficient to determine the outcome of the appeal. However, I will deal with each of them for completeness.

Whether the subject house is in a street that has no traditional character (AO5(d))

[74] Again, it was agreed that this provision does not posit an absolute; but rather that what AO5(d) is referring to is a street that does not have sufficient character to be reasonably described as having traditional character.

[75] In AO5(d), the phrase "traditional character" is used, rather than the composite phrase "traditional building character". This is explicable on the basis that the phrase "traditional character" is used by reference to an area (or a street); whereas "traditional building character" is used by reference to a building.[60] However, what gives an area (or street) "traditional character" is a combination of traditional building form and roof styles, traditional elements, detailing and materials, traditional scale and traditional setting.

[76] Although arguably an area could be given "traditional character" by a house constructed at any time which has a combination of those things, there is a clear theme within the relevant provisions of CP2014 that "traditional" in this context refers to houses constructed in 1946 or earlier.[61]

[77] In the JER, Mr McDonald expressed the opinion that the street does not have traditional building character because:

"a) Sydney Street contains only eight (or possibly seven) pre-1946 buildings under demolition control out of approximately 60 properties between Gympie Road and Rode Road

1. by any objective assessment, the actual character of the street is a modern character generated by the predominance of post-1946 buildings

1. the few remnant pre-1946 buildings under demolition control do not generate sufficient traditional building character for the street to be reasonably characterised as having a traditional character."[62]

[78] By reference to his analysis of the overall character of Sydney Street in his statement of evidence, Mr McDonald reinforces this opinion at [5.8]-[5.10] of that statement, culminating in the opinion that "Sydney Street has no overall or effective traditional character such that demolition would satisfy the AO5(d) acceptable outcome of the overlay code".

[79] On the other hand, Mr Elliott was of the opinion that the street does have traditional character because:

"a) the existence of the eight (8) pre-1946 houses located in Sydney Street and mapped within the overlay together with several other pre-1946 houses situated in Sydney Street (but situated outside of the overlay) constitutes the representation of traditional building character in that street.

1. the question of whether or not the traditional building character exhibited by the pre-1946 houses in Sydney Street and included in the overlay is the predominant character of the street is not material to the assessment of the proposed demolition of the subject house under the overlay code. The predominance, or otherwise, of traditional building character in the overlay streetscape of Sydney Street is not specifically raised in any part of the purpose of the overlay code.

1. the demolition application for the subject house is not considered to be the appropriate planning mechanism to evaluate the sufficiency, or otherwise, of the extent of traditional building character currently mapped in the overlay within Sydney Street. To the extent that the overlay is mapped in this street, traditional building character is considered to be the prevailing character of this portion of the overall streetscape."[63]

[80] Even allowing for an appropriate qualification to AO5(d), I find it difficult to conclude that Sydney Street has "no traditional character". It does have some, not insignificant, traditional character, represented by a number of pre-1946 houses.

[81] However, this finding does not impact on the outcome of the appeal, having regard to the conclusion reached in relation to AO5(c).

Whether the subject house is a building which does not contribute positively to the visual character of the street (PO5(c))

[82] I have addressed the visual character of the street at paragraphs [53]-[55], [60]-[68] above, in the context of addressing AO5(c).

[83] Mr McDonald was of the view that the house needs to be consistent with the existing predominant and overall character of the street, in order to contribute positively to the visual character of the street, for the purposes of PO5(c).[64]

[84] Reflecting that opinion, in the JER, he expressed the opinion that the subject building does not contribute positively to the visual character of the street because:

"a) the remnant traditional building character evident in one small part of the street is not typical of the overall character of the street and is not of sufficient strength to generate an overall traditional building character in the street.

1. by any objective assessment, the street could not reasonably be characterised as expressing any overall, cohesive or effective traditional building character but, instead, exhibits a predominantly modern character generated by post-1946 buildings.

1. the subject building is atypical of the post-1946 character of the overall street."[65]

[85] At [6.2] of his statement of evidence, Mr McDonald concluded by saying the house "makes a negligible positive contribution to either the remnant traditional or the overall modern visual character of Sydney Street".[66]

[86] In contrast, Mr Elliott was of the opinion that the subject building does contribute positively to the visual character of the street because:

"a) the experts have already agreed (through the exclusion of certain grounds of appeal in section 15) that the subject house does, in fact, represent traditional building character irrespective of several unsympathetic modifications that have been made to the pre-1946 house.

1. the subject house is situated amongst a cluster of similar buildings in Sydney Street of pre-1946 construction, which collectively represent the extent of traditional building character present in that street and is correspondingly mapped in the overlay. To the degree that the subject house represents an example of traditional building character within the extent of the overlay mapped in Sydney Street, this house is considered to make a positive contribution to the visual character of the street.

1. the subject house is typical of the pre-1946 character to the extent that the overlay is currently mapped within Sydney Street."[67]

[87] For the reasons already expressed, in general terms I prefer Mr McDonald's analysis to that of Mr Elliott's, because of the latter's focus on that narrow part of Sydney Street in which houses covered by the overlay are located. However, it seems to me that Mr McDonald's "test" for positive contribution - that is, that the house be "consistent" with the overall or predominant visual character of the street - may also be too narrow.

[88] In addition, although PO5(c) is worded in very broad terms, in construing and applying PO5(c), it is necessary to consider the purpose to be achieved by it, in the context of the demolition code.

[89] In my view, what is intended by the word "positively" is that there is a contribution which is favourable[68] - that is, it adds to the visual character of the street, as opposed to being neutral (or, for that matter, detracting from it).[69]

[90] As to the meaning of "visual character", in my view, PO5(c) ought to be interpreted having regard to the "visual character" that the demolition code, and the planning scheme more broadly, is concerned to protect. That is apparent, inter alia, from parts of the strategic framework referred to in the statement of purpose in clause 8.2.21.2(1) of the demolition code, for example:

• (a) the statement in section 3.4.1(b) that "Brisbane is defined by the visual markers and amenity created by ... traditional character suburbs..."; and
• (b) the land use strategy L20.2, which corresponds to the outcome that "Brisbane's distinctive suburban identity is reinforced by its character housing precincts", namely:

"L20.2 Development proposals maintain the traditional building character housing that individually and collectively contributes to the distinctive character of the area and streetscape."[70]

[91] It is also apparent from the further statement of purposes in section 8.2.21.2(2)(a) (referring to pre-1946 buildings that give areas in the overlay their traditional character and traditional building character) and (d) (referring to pre-1946 buildings forming an important part of a streetscape established in 1946 or earlier).

[92] It is also apparent from the corresponding acceptable outcomes, such as AO5(c) and AO5(d).

[93] It may be possible to conclude that this house makes some positive contribution to the general visual character of the street, in the sense that its contribution is one that would not exist at all if the land were vacant,[71] or in the sense that it is not an eyesore contributing negatively.[72] Conversely, it could be said that, being a pre-1946 house, it does not contribute positively to the modern (post-1946) visual character of the street;[73] although in a street of a mixed or varied visual character that may not necessarily be correct.[74] However, in my view, what needs to be shown for PO5(c) to be met is that the house contributes positively to (or adds to) the visual character of the street which is protected by the code and the planning scheme.[75]

[94] In this case, having regard to the conclusions otherwise reached, in relation to AO5(c) in particular, in my view it cannot be said that the subject house makes a positive contribution to the visual character of the street, in the sense that I have found PO5(c) ought to be interpreted and applied.

[95] It is not enough to say that because the house represents traditional building character, and is situated within a group of such houses covered by the overlay, it therefore makes a positive contribution to the visual character of the street.[76] On the basis of the findings made above, it cannot be said that the subject house contributes positively to any distinctive (traditional) character in Sydney Street.

[96] The effect of section 5.3.3(c)(iii) is that development that complies with AO5(c), complies with the purpose and overall outcomes of the code, and in turn complies with the code.

[97] But testing that conclusion against the purpose and relevant overall outcomes, confirms the correctness of it.

[98] In terms of overall outcome 2(a), the traditional character of the area, as demonstrated in Sydney Street, has been eroded by the post-1946 development, but in addition, it cannot be said that the subject house is a building that gives that area, or contributes to that area, having traditional character or traditional building character. In terms of overall outcome 2(d), given the considerable change to the streetscape of Sydney Street, evident in its present visual character, as well as the current presentation of the subject house, it could no longer be said that the subject house forms an important part of a streetscape established in 1946 or earlier.

[99] The appeal is allowed. I will hear the parties as to the appropriate form of order, and costs.

[2] See the definitions of "development" (in s 7) and "building work" (in s 10) in the Sustainable Planning Act 2009 (SPA).

[3] See sections 5.3.1 and 5.3.2 and table 5.10.21 of CP2014.

[4] Definition of "grounds" in schedule 3 to the SPA.

[6] Emphasis added. Although the experts, Mr McDonald and Mr Elliott, only identified 2(a) and (d) as relevant and applicable in the context of this case; the Council on the appeal also emphasised 2(h).