Sparrow & Anor v Rockhampton Regional Council [2026] QPEC 5

PLANNING AND ENVIRONMENT - APPEAL - PROPOSED DEMOLITION OF BUILDING WITH TRADITIONAL CHARACTER - where the development application for a preliminary approval to demolish the dwelling house is impact assessable - whether demolition of the dwelling house should be approved in the exercise of the discretion

Planning Act 2016 (Qld) ss 43, 45, 59, 60

Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47

Planning and Environment Court Regulation 2017 (Qld) s 31

Planning and Environment Court Rules 2016 (Qld) s 36

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153; [2025] QPELR 633, applied

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

[1] This is an appeal against the decision of the Respondent, Rockhampton Regional Council ("the Council") refusing a development application by John William Sparrow and Susan Marie Sparrow to facilitate the demolition of a dwelling house and chapel and relocation of a carport on land at 12 Athelstane Street, The Range, more particularly described as Lot 1 on SP 342953 ("the subject land").

[2] The subject land has an area of approximately 1,782 square metres. It is a "battle-axe" lot, the handle of which provides a small frontage of about five metres to Athelstane Street. The balance of the subject land sits behind Lot 34 on SP 342953 ("Lot 34"), which has a depth of approximately 32 and a half metres. The dwelling house is set back from the common boundary between the subject land and Lot 34. It is set back about 46 metres from Athelstane Street.

[3] There is no dispute that the dwelling house exhibits character values. That is unsurprising given it was constructed in 1864 and has not undergone any substantial external alterations.

[4] At present, there is an unimpeded view of the dwelling house from part of Athelstane Street. The relevant part of Athelstane Street where such views are available is about 50 metres long and is proximate to the frontages of the subject land and Lot 34.

[5] The unimpeded view of the dwelling house is unlikely to persist. Lot 34 is the subject of a development permit for building work. It permits the construction of a dual occupancy and facilitates the lawful use of Lot 34 for that purpose. Lot 34 is also the subject of a development permit that authorises its reconfiguration into two lots, each of which could lawfully be used for a dwelling house.

[6] Mr and Mrs Sparrow lodged their development application seeking a preliminary approval for building work for the proposed demolition and relocation on 21 December 2023. Under Rockhampton Region Planning Scheme 2015 ("the Planning Scheme"), the development application required impact assessment.

[7] There was one properly made submission. It opposed approval of the development application on the basis that the history of the dwelling house was important. It also asserted that the streetscape had traditional character that warranted protection of the dwelling house. The submission expressed the view that construction of a dual occupancy on Lot 34 would not entirely block the view of the dwelling house.

[8] On 9 October 2024, the Council refused the development application. The decision was communicated in a decision notice dated 15 October 2024.

[9] On 29 October 2024, Mr and Mrs Sparrow filed their Notice of Appeal.

[10] During the appeal, Mr and Mrs Sparrow made a minor change to their development application. They now seek approval to demolish the carport, rather than to relocate to another position on the subject land. The Council did not oppose the change. It also does not oppose the demolition of the chapel or the carport.

[11] The Council maintains that, to the extent that the development application seeks a preliminary approval to demolish the dwelling house, that part of the development application should be refused.

[12] Under the Planning Scheme, "Demolition work" is defined to include "Work to demolish or systematically dismantle a structure ...". The Council accepts that demolition may involve the dwelling house being removed in parts. It contends for refusal regardless of the prospect that the dwelling house may be dismantled and relocated elsewhere.

[13] It is for Mr and Mrs Sparrow to establish that the appeal should be allowed: s 45 of the Planning and Environment Court Act 2016 (Qld).

What is the relevant framework for the decision?

[14] Under s 43 of the Planning and Environment Court Act 2016, subject to s 46, the appeal proceeds by way of hearing anew. The Court has a broad discretion in determining the appeal. It is to be exercised judicially and subject to the limitations in the relevant statutes. The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.

[15] The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: s 46(2) of the Planning and Environment Court Act 2016. The Court's decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.

[16] Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument that was in effect when the development application was properly made. Version 4.4 of the Planning Scheme is such a categorising instrument: s 43 of the Planning Act 2016.

[17] The correct approach to the construction of planning schemes was recently confirmed in Chiodo Corporation Operations Pty Ltd v Douglas Shire Council [2024] QCA 153; [2025] QPELR 633 at 653 - 5 [82]-[93].

[18] Weight can be given to amendments to the Planning Scheme: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016. It is common ground between the parties that there are no relevant amendments that should be given weight.

[19] Pursuant to s 45(5) of the Planning Act 2016 and ss 31(1)(f) and (g) and (2) of the Planning Regulation 2017 (Qld), the assessment must also be carried out having regard to, amongst other things and to the extent that they are relevant:

(a) the development approval for, and the lawful use of, the premises or adjacent premises; and

(b) the common material for the development application, including the properly made submission.

[20] The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309.

[21] Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]- [86]. The approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328 at 333 - 7 [12]-[22].

[22] As is explained in those authorities, when making an impact assessment, the ultimate decision called for is a broad, evaluative judgment that admits of flexibility to approve an application in the face of non-compliance with a planning scheme.

[23] With that framework in mind, I now turn to identify the key issues that inform the exercise of the discretion.

[24] The issues in dispute centre on the proposed demolition of the dwelling house. It is conceded that the chapel and carport can be demolished.

[25] In final submissions, Ms Holly Stephanos and Ms Kate Buckley, Counsel for Mr and Mrs Sparrow and the Council respectively, appropriately and helpfully acknowledged that, considering the evidence and the respective cases, the issues that remain for determination are very limited. I thank them for their valuable assistance in that regard.

[26] Having regard to the cases ultimately advanced by Mr and Mrs Sparrow and the Council, the issues that require determination call for consideration of three factual questions.

1. Does the proposed development comply with the Character overlay code?
2. Do the development approvals for, and lawful use of, Lot 34 lend support to approval?
3. Should the proposed development be approved in the exercise of the discretion?

Does the proposed development comply with the Character overlay code?

[27] The case for refusal advanced by the Council was initially founded on allegations of non-compliance with the overall outcomes in s 8.2.5.2(2)(a), (b) and (e)(i) and performance outcomes PO11(a) and (c) of the Character overlay code. The Council also advanced allegations of non-compliance with ss 3.5.4.1(2) and (3) of the Strategic framework.

[28] Each of those provisions of the Planning Scheme are applicable assessment benchmarks given the subject land is in the Residential character demolition control area of the Character overlay, and the development application is impact assessable.

[29] The case proceeded on the basis that development complies with the Character overlay code if it complies with:

(a) the purpose and overall outcomes of the Character overlay code; or

(b) the performance or acceptable outcomes of the Character overlay code.

[30] Performance outcome PO11 of the Character overlay code contains several subparagraphs that are expressed disjunctively, rather than conjunctively. Performance outcome PO11 of the Character overlay code states:

The removal, relocation, partial demolition or total demolition of a building only occurs if it can be demonstrated that:

(a) total or partial loss of the building will not contribute to the loss of character values; or

(b) it is no longer recognisable as having character value;

(c) it is a building that does not contribute positively to the character of the street; or

(d) it is a building incapable of structural repair; or

(e) is a risk to people and property.

Editor's note - An impact statement produced by a suitably qualified professional may be required to demonstrate that there is no adverse impact to the character of the area due to the loss of the place."

[31] In its reasons for refusal, the Council contended that the proposed demolition does not comply with any of the subparagraphs in performance outcome PO11 of the Character overlay code.

[32] In their reasons for approval, Mr and Mrs Sparrow did not advance a case founded on compliance with performance outcomes PO11(b), (d) or (e) of the Character overlay code. In oral submissions, Mr and Mrs Sparrow conceded that the dwelling house has character values. They no longer advance a case of compliance with performance outcome PO11(a) of the Character overlay code.

[33] In its oral submissions, the Council appropriately conceded that it was unnecessary to consider each allegation of non-compliance. It now says that the strength of the refusal case lies in the allegation of non-compliance with performance outcome PO11(c) of the Character overlay code. As such, in this case, that is the only assessment benchmark that requires consideration to determine the issue of compliance with the Character overlay code. I accept the Council's submissions in that regard.

Does the dwelling house contribute positively to the character of the street?

[34] In considering whether the dwelling house contributes positively to the character of the street, I have the benefit of various forms of evidence, including:

(a) evidence from Mr Leslie Curtis and Mr Andrew Ladley, the experts on character, architecture and visual amenity retained by Mr and Mrs Sparrow and the Council respectively, expressed in:

(i) the joint expert report on Character, Architecture & Visual Amenity;

(ii) individual statements from both experts;

(iii) oral testimony from both experts;

(b) photographs of the dwelling house taken from various locations in the street;

(c) photographs of other houses in Athelstane Street;

[35] Given the narrowing of the issues, the evidence of Mr John Gaskell and Mr Greg Ovenden, the town planners retained by Mr and Mrs Sparrow and the Council respectively, is of limited assistance. The limited assistance provided by their evidence is also informed by the parties' election to not rely on part of the evidence contained in the joint expert report prepared by the town planners. That election reflected the parties' acceptance that to rely on all aspects of the joint expert report prepared by the town planners, without the court's leave, would result in non-compliance with s 36 of the Planning and Environment Court Rules 2018 (Qld).

[36] Although it is not evidence, my appreciation of the evidence was assisted by a site inspection undertaken on the first day of the hearing.

[37] Performance outcome PO11(c) of the Character overlay code calls for determination of whether the dwelling house contributes positively to the character of Athelstane Street. This is a factual determination about which reasonable minds may differ.

[38] In assessing the contribution that the dwelling house makes to the character of Athelstane Street, it is relevant to consider:

(a) the attributes of the dwelling house;

(b) the extent to which it is visible; and

(c) the attributes that inform the character of Athelstane Street.

[39] In the joint expert report on character, architecture and visual amenity, Mr Curtis opines that the dwelling house is a large highset house with an approximate floor area of 393 square metres. It has a 29.5-metre long facade that faces north-west towards Athelstane Street. The building has a depth of approximately 15 metres.

[40] According to Mr Curtis, the building is characterised by a symmetrical appearance comprised of two shallow, projecting mirrored wings. Mr Curtis says that the symmetrical appearance is reinforced by two matching, prominent roof gables projecting from the hipped roof form above each wing at its north-east and south-west ends. The central front entrance between the projecting wings is accessed by symmetrical stairs. A verandah with a lower-hipped roof extends across the front of the north-west facade, wrapping round each wing.

[41] Mr Curtis describes that the building is clad with timber weatherboards and includes timber architectural details. The roof is clad with corrugated metal sheeting. The open timber balustrade is characterised by the cross-braced supports. The understorey is partially enclosed at the front by concrete blocks and lattice screens.

[42] Mr Ladlay agrees with Mr Curtis' description of the dwelling house. He adds that the subject house includes many external features that are typical of a Queensland character house.

[43] According to Mr Ladlay, the features in question appear to be surviving original or early elements or have been appropriately reconstructed to match original elements. Mr Ladlay labels the elements and external features to which he refers on a photograph that appears in the joint expert report. The features include two projecting flying gables with decorative bargeboards; collar ties and kingposts; a central-entry portico with decorative timber barges and pediment infill; open verandahs with original-style cross-braced timber balustrade; timber windows; timber lattice screening; verandah details of timber posts; post mouldings and sweeps; and exposed timber framing to the inner verandah walls that align internally with timber chamfer boards.

[44] Mr Ladlay helpfully annotated these features on Figure 24 in the joint expert report. Figure 23 of the joint expert report is a historical photograph of the dwelling house, which supports Mr Ladlay's opinion that the features appear to be surviving original or early elements or features that have otherwise been appropriately reconstructed to match original elements.

[45] Mr Ladlay describes the dwelling house as highly intact. He says it includes virtually all the traditional character features that can be attributed to such buildings. Mr Ladlay describes the dwelling house as long and large with a strong visual presence in the street.

[46] The evidence of Mr Curtis and Mr Ladlay to which I have just referred was cogent and consistent with the photographs of the dwelling house. I accept their evidence in that regard.

What is the extent to which the dwelling house is visible?

[47] In his individual report, Mr Curtis opines that it is not until a person is almost directly opposite the frontage of Lot 34 that the dwelling house is fully visible, and its visual character properly understood in relation to the streetscape. According to Mr Curtis, that view is available for approximately 50 metres of Athelstane Street or approximately 24 per cent of its length. Mr Curtis says that the portion of the dwelling house that is visible is limited to the dwelling house's upper storey and roof. This is because views of the ground storey are obstructed by the topography of the subject land and Lot 34. Mr Curtis explains his opinion by reference to photographs and an annotated arial photograph contained in his separate report.

[48] During cross-examination, Mr Ladlay accepted Mr Curtis' analysis. He agrees that the dwelling house is highly visible in the 50-metre length of Athelstane Street identified by Mr Curtis. Mr Ladlay opines that it is also at least partially visible for about 100 metres of Athelstane Street.

[49] I accept this evidence of the experts. The opinions are supported by cogent explanations, including by reference to annotated photographs.

What are the attributes that inform the character of Athelstane Street?

[50] In the joint expert report, Mr Curtis says that Athelstane Street has a length of approximately 210 metres. Five lots along Athelstane Street are included on the Character overlay map in the Planning Scheme. They are all mapped within the Residential character demolition control area of the Character overlay.

[51] All the properties mapped as within the Residential character demolition control area of the Character overlay are on the south-west side of Athelstane Street. They are located at street numbers 2, 4, 6 and 12 Athelstane Street and at 298 William Street, which is on the north-west corner of the intersection with Athelstane Street.

[52] According to Mr Curtis, the visibility of the house at 2 Athelstane Street on the south-west corner of the intersection with Denham Street is accentuated by its two street frontages and the open space of the intersecting road reserve. That property has an approximate 15-metre frontage to Athelstane Street. It is a two-storey house of a traditional style that Mr Curtis initially believed may have been constructed before 1911. During cross-examination, Mr Curtis accepted Mr Ladlay's view about the age of the building. Mr Ladlay opines that the house at 2 Athelstane Street appears to have been built in the 1920s or 1930s.

[53] Mr Curtis opines that the house at 2 Athelstane Street appears relatively well maintained and is characterised by its central gable roof form, a small gable over the first-storey entrance balcony, its weatherboard cladding and the framed glazing of the windows. The enclosed ground storey is set back from the wall line above and is likely to have been a more recent addition. The building retains its original weatherboard appearance on the upper storey but includes aluminium windows. The house is set back approximately six metres from the Athelstane Street frontage behind a picket fence and a grassed area.

[54] Mr Curtis says the adjoining property to the south-east at 4 Athelstane Street has an approximate 17-metre frontage. He describes the highset house on that lot as having a traditional style. Mr Curtis opines that it is likely to have been constructed around 1930. His opinion in that regard is explained by reference to the external walls being clad with fibro sheets. The house is partially screened from the street by established vegetation within its front setback. In Mr Curtis' opinion, the house is characterised by a gable roof with two smaller gables that project over the stepped front-facade alignment that addresses Athelstane street; its fibro-sheet wall cladding; the framed glazing over the windows; and the sunhoods over some windows. He says the ground-storey undercroft is screened by vertical palings. The house is set back approximately 5.5 metres from the Athelstane Street frontage behind a paling fence and a grassed area that includes established, but small, trees.

[55] According to Mr Curtis, the adjoining two lots along Athelstane Street to the south-east extend to the north-west boundary of the subject land. They are subject to the Character overlay but do not contain character houses. The two lots form a single property at 6 Athelstane Street that is now improved by a recently completed large two-storey house. It has a modern appearance.

[56] Mr Curtis says that the other property identified on the Character overlay map has an address of 298 William Street. It is at the north-west corner of the intersection of Athelstane Street and William Street. That property accommodates a two-storey house with a hipped roof. The house has a frontage of approximately 20 metres to Athelstane Street and is set back approximately 15 metres from the street frontage. The principal facade of the house is oriented to William Street, where it includes two projecting roof gables. In Mr Curtis' opinion, the north-east-facing façade, which faces Athelstane Street, has been altered to include a projecting balcony with a low-pitched roof. The timber-framed windows have been replaced with aluminium-framed windows, and a recessed lower-ground level has been created by enclosing the undercroft area.

[57] Mr Curtis describes the other 13 properties located along the two sides of Athelstane Street as varying in age, style, setbacks and landscaping. He opines that the varied appearances result in an eclectic streetscape character without a coherent identity.

[58] Mr Ladlay agrees with many of Mr Curtis' observations about the houses that are identified in the Character overlay map in the Planning Scheme. In his opinion, there are other houses with frontages to Athelstane Street that clearly display many of the typical character features that are displayed by the subject dwelling house. Mr Ladlay explains that his consideration of the character streetscape values of Athelstane Street take into account the contributions made by those other houses. He says those additional houses with traditional character features are located at 13 and 5A Athelstane Street and 227 Denham Street.

[59] Mr Curtis accepts that the contribution made by those other houses that display traditional character features is relevant to a consideration of the character of Athelstane Street.

[60] There are differences between the decriptions of Mr Curtis and Mr Ladlay about the contribution the houses at 13 and 5A Athelstane Street and 227 Denham Street make to the character of Athelstane Street. The differences are slight. It is unnecessary for me to resolve them as I have the benefit of photographs of each of the houses that show the contribution they make.

[61] Having regard to the evidence of Mr Curtis and Mr Ladlay to which I have just referred and the photographs of the houses in Athelstane Street, I am satisfied that Athelstane Street has a varied residential character. The varied character is informed, in part, by houses with evident traditional character features. That is particularly so at the north-western end of Athelstane Street. The traditional character at the north-western end of the street is appreciable from around 7A Athelstane Street, at which point 12 Athelstane Street comes into view.

Does the dwelling house make a meaningful contribution to the character of Athelstane Street?

[62] The expert evidence demonstrates that, historically, the dwelling house was screened from view by substantial vegetation. Nevertheless, it is common ground that the assessment of the contribution to the character of the street is to be undertaken by reference to the current situation. I agree.

[63] At locations on Athelstane Street that are distant from the subject land, one is unable to appreciate the contribution made by the dwelling house. At distant locations, the vacant Lot 34 gives the impression of a missing tooth in a smile. As one approaches the frontage of Lot 34, one gains a different impression.

[64] As I have already mentioned, at present, there is an unimpeded view of the dwelling house from part of Athelstane Street. The view is of an impressive house with a traditional character. The dwelling house is set back approximately 46 metres from the pavement of Athelstane Street. Although the setback detracts from the dwelling house's contribution, that is offset by two factors. The first is the substantial size of the dwelling house, particularly its lengthy elevation that presents to Athelstane Street. The second relates to the siting of the dwelling house and the topography of this part of the street. The topography is such that the dwelling house is perched high above Athelstane Street. This enhances its overall visual contribution.

[65] In the circumstances, I am satisfied that, at present, the dwelling house provides a meaningful and positive contribution to the character of Athelstane Street. As such, the proposed demolition of the dwelling house does not comply with performance outcome PO11(c) of the Character overlay code.

[66] The planning outcome sought in performance outcome PO11(c) of the Character overlay code is a matter of importance. This is apparent from a broader consideration of the Planning Scheme, including the balance of the Character overlay code and the specific outcome in s 3.5.4.1(3) of the Strategic framework. The specific outcome in s 3.5.4.1(3) of the Strategic framework contains the planning policy with respect to character that underpins the outcomes in the character overlay code.

[67] In the circumstances, the non-compliance with performance outcome PO11(c) of the Character overlay code is a matter that weighs heavily against approval of that part of the development application that seeks demolition of the dwelling house.

[68] If my task was limited to an assessment against assessment benchmarks, I would refuse the development application. The task is not so limited. I must also have regard to other relevant considerations.

Do the development approvals for, and lawful use of, Lot 34 lend support to approval?

[69] In support of its case for approval, Mr and Mrs Sparrow rely on evidence about the development approvals for, and any lawful use of, Lot 34.

[70] There is no dispute that this is a matter to which I must have regard under s 45(5)(a) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017. It is also common ground that the development approvals that attach to Lot 34, and the likely development of Lot 34, are relevant matters under s 45(5)(b) of the Planning Act 2016.

[71] The dispute relates to the weight to be attributed to those matters in the exercise of the discretion. The cases advanced by the parties on that issue call for determination of three factual questions, namely:

1. What are the development approvals for, and lawful use of, Lot 34?
2. What is the likelihood that Lot 34 will be developed for a dual occupancy?
3. Will lawful development of Lot 34 result in a loss of the meaningful contribution that the dwelling house makes to Athelstane Street?

What are the development approvals for, and any lawful use of, Lot 34?

[72] There are two relevant development approvals extant for Lot 34. One is a development permit for building work that authorises the construction of a dual occupancy on Lot 34 fronting Athelstane Street ("the approved dual occupancy"). The other authorises the reconfiguration of Lot 34 into two lots, each of which could be lawfully used for a dwelling house.

(a) the decision notice granting the building permit for the approved dual occupancy, together with the approved architectural drawings, structural drawings and landscape plan; and

(b) documents from the records of the Council that relate to the reconfiguration of Lot 34.

[74] The Council does not dispute that Lot 34 can be reconfigured into two lots, each of which could lawfully be used for a dwelling house.

What is the likelihood that Lot 34 will be developed for a dual occupancy?

[75] In relation to the likelihood that Lot 34 will be developed for a dual occupancy, I have the benefit of evidence from Mrs Sparrow. Mrs Sparrow provided two statements addressing this issue.

[76] The evidence demonstrates that Mr and Ms Sparrow presently own Lot 34.

[77] Mrs Sparrow is cognisant that the currency period for the approved dual occupancy ends on 6 August 2027. She deposes to an intention to construct the dual occupancy before the end of the currency period. Mrs Sparrow's evidence in that regard was tested during cross-examination. Mrs Sparrow's evidence about her commitment to proceeding with the dual occupancy was not shaken. She made it clear that her intention is to proceed with the approved dual occupancy regardless of the outcome of this appeal.

[78] The evidence of Mrs Sparrow demonstrates that many steps have been taken to progress the dual occupancy development. The steps include:

(a) procuring architectural plans from architects in February 2025;

(b) procuring structural drawings in June 2025;

(c) submitting a development application for building works to a private certifier in July 2025;

(d) receiving a building permit on the 6th of August 2025;

(e) engaging with a consultant about other necessary approvals and permits that are required;

(f) procuring her son to engage with building contractors on her behalf in late October 2025;

(g) instructing a consultant to prepare an application for a permit for works in the road reserve for the driveway crossover in November 2025;

(h) instructing a consultant to prepare an application for plumbing and drainage approval in November 2025;

(i) applying for the permit for the driveway crossover on 16 December 2025;

(j) progressing the engagement of other consultants whose assistance is necessary with respect to the application for plumbing and drainage approval;

(k) obtaining an cost estimate with respect to the construction costs for the dual occupancy on 12 December 2025; and

(l) steps to procure a building contract with the builder who provided the cost estimate in December 2025.

[79] During cross-examination, Mrs Sparrow confirmed that she would be funding the development of the dual occupancy.

[80] Despite that evidence, the Council submits that there is little certainty that the construction of the dual occupancy over Lot 34 will proceed. In support of the submission, the Council relies on Mrs Sparrow's evidence that construction has not commenced because she plans to sell the house to a person who wants to relocate it.

[81] On that issue, Mrs Sparrow explained that, based on enquiries she made with experts in relocation, she formed the view that construction of the dual occupancy would hamper the ability to relocate the dwelling house. Mrs Sparrow explained that she understood that to move the dwelling house, the removalist was likely to remove the dwelling house from the subject land in three parts. Mrs Sparrow was informed that the construction of the approved dual occupancy would hamper the removal given the subject land has a driveway of only five metres' width.

[82] The Council says I should not accept Mrs Sparrow's evidence in that respect because it is not supported by evidence from expert removalists. Even if I did not accept Mrs Sparrow's evidence, that construction of the approved dual occupancy would hamper efforts to demolish the dwelling house by removing it in three parts is a matter that I would readily infer me from facts in evidence. The relevant facts that support such an inference include the dimensions of the dwelling house, the plans for the approved dual occupancy and the limited (five metre) width of the handle for the battleaxe lot that comprises the subject land.

[83] Although one can never completely discount the possibility of unforeseen events impacting future intentions, I must act on the evidence. On the evidence, I am comfortably satisfied that the construction of the dual occupancy will proceed.

[84] In those circumstances, it is appropriate to consider the extent to which development of Lot 34 for the approved dual occupancy would obscure the dwelling house.

Will lawful development of Lot 34 result in a loss of the meaningful contribution that the dwelling house makes to Athelstane Street?

[85] Mr and Mrs Sparrow submit that it is relevant to have regard to the impacts of the approved dual occupancy, including the impacts one might reasonably expect to be occasioned by fencing and landscaping. The Council does not dispute that submission. The dispute relates to the extent of the impact. This is a matter about which reasonable minds may differ.

[86] With respect to the extent of impact, I have the benefit of photomontages prepared by Mr Zach Petersen and Mr Peter Letten. I also have the assistance of expert evidence from Mr Curtis and Mr Ladlay.

[87] Mr Petersen's photomontages involved an accurate depiction of all details contained in the approved plans that form part of the approved dual occupancy. Those plans include a landscape plan that indicates the proposed fencing and landscaping . The landscape plan is one of a series of plans with the drawing number 1298 that are recorded as approved plans in section 3 of the decision notice.

[88] Mr Letten's photomontages reflect a different exercise. As Mr Letten explained during cross-examination, he was retained to prepare photomontages that provide a representation of the massing associated with the approved built form. He was not required to depict the impact of fencing or to represent the impact of any landscaping.

[89] Whether or not the approved dual occupancy requires landscaping of the type depicted in the landscape plan, on the balance of probabilities, I am persuaded that landscaping is likely to be incorporated as part of the development of Lot 34. I am also persuaded that it is reasonable to expect a fence of 1.8 metres' height would be constructed along the side and rear boundaries of Lot.

[90] In the circumstances, the absence of fencing and landscaping on Mr Letten's photomontages is material. They are of lesser assistance than those prepared by Mr Petersen. That said, in reaching my conclusion, I do not simply adopt or accept the extent of impact depicted on the photomontages shown in Mr Petersen's photomontages. It is reasonable to take account of the possibility that the landscaping will not be as lush as that shown on the photomontages produced by Mr Petersen .

[91] In forming my views about the weight to be afforded this relevant matter, I have had regard to both photomontages and the opinion evidence provided by Mr Curtis and Mr Ladlay.

[92] During cross-examination, Mr Ladlay accepted that it is reasonable to assume there will be boundary fences. He opines that, although the views of the dwelling house will be dominated by the existence of the dual occupancy, one will still be able to form an impression of the dwelling house from the remaining glimpses one will get of it. Mr Ladlay opines that the parts of the dwelling house that will be visible will be sufficient to provide a meaningful contribution to the character of Athelstane Street. He explains that the partial views of the dwelling house will be sufficient to gain an appreciation of the dwelling house's traditional character features. He says that collectively, they will make a meaningful contribution to the character of Athelstane Street.

[93] Mr Curtis disagrees. He considers that the impact of the dual occupancy will be such that the extent of the dwelling house that will be visible will be negligible. As such, he says the dwelling house will not make a meaningful contribution to the character of Athelstane Street.

[94] Having regard to all the evidence about the potential impact, it seems to me that the impact lies between that depicted on the photomontages prepared by Mr Letten and the photomontages prepared by Mr Petersen. I am persuaded that the approved dual occupancy, together with fencing and landscaping that can reasonably be expected as part of the lawful use of Lot 34, would result in the loss of any meaningful contribution by the dwelling house to the character of Athelstane Street. This is a matter that weighs heavily in support of approval.

[95] The Council submits that the weight to be afforded this matter is reduced by the prospect that the approved dual occupancy might not proceed. Even if I were to accept that to be so, a countervailing consideration is the likely impact that would then be occasioned by the lawful reconfiguration of Lot 34 and the lawful use of the two resulting lots for dwelling houses. In response to questions during cross-examination, Mr Ovenden gave evidence about the provisions of the Planning Scheme and the Queensland Development Code that set the built form parameters for lawful use of Lot 34 for dwelling houses.

[96] The Council's previous decision to approve reconfiguration of the large parcel of land on which the dwelling house originally sat, including the creation of Lot 34, has enabled lawful development outcomes that will, on the balance of probability, limit the visibility of the dwelling house such that it will not continue to make a meaningful contribution to the character of Athelstane Street.

Should the proposed development be approved in the exercise of the discretion?

[97] As I have already indicated, the non-compliance with performance outcome PO11(c) of the Character overlay code is a matter that weighs heavily against approval of that part of the development application that seeks demolition of the dwelling house.

[98] The Council also relies on the single, properly made submission as a factor that supports refusal. I accept the properly made submission is relevant. Its contents support the view that the present views of the dwelling house provide a meaningful contribution to the character of Athelstane Street. Having regard to the evidence before me (which was not available as part of the development application), I do not accept the views of the submitter about the impact of future lawful use of Lot 34. Nevertheless, on balance, the properly made submission is a matter that weighs against the grant of an approval.

[99] Against those matters supporting refusal advanced by the Council, I must balance the weight of the relevant matters relied on by Mr and Mrs Sparrow. As I have identified above, they weigh heavily in support of approval.

[100] Overall, in the exercise of my discretion, I am persuaded that the balance favours approval.

[101] Mr and Mrs Sparrow have discharged the onus.

[102] In due course, the Council's decision will be set aside and replaced with a decision to approve the development application subject to conditions. To facilitate the preparation of a suite of conditions, I will return the appeal to the applications list for review. The appeal will remain on that list unless and until a dispute arises about conditions of approval.