PLANNING AND ENVIRONMENT COURT 
OF QUEENSLAND

CITATION:	Williams v Brisbane City Council [2021] QPEC 26 	
PARTIES:	IAN MALCOLM WILLIAMS
(appellant)
v
BRISBANE CITY COUNCIL 
(respondent)	
FILE NO/S:	2372 of 2020	
DIVISION:	Planning and Environment	
PROCEEDING:	Appeal 	
ORIGINATING COURT:	Planning and Environment Court, Brisbane	
DELIVERED ON:	8 April 2021, ex tempore 	
DELIVERED AT:	Brisbane	
HEARING DATE:	6, 7 and 8 April 2021 	
JUDGE:	Rackemann DCJ	
ORDER:	Appeal allowed 	
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a code assessable development application for a preliminary approval for building work to facilitate demolition of a pre-1947 house – whether the subject house contributed to the traditional building character of the part of the street within the Traditional Building Character Overlay – whether demolition would result in loss of traditional building character – where building set further back from the street and at a lower elevation relative to the street than the other buildings of traditional building character – where main design features expressed to the river frontage, rather than the street frontage – where potential views from the street to the house limited and affected by long standing vegetation  	
CASES:	Hamilton v Brisbane City Council [2016] QPELR 592
Taylor v Brisbane City Council [2020] QPELR 1080	
LEGISLATION:	Planning Act 2016 (Qld) s 60	
COUNSEL:	T Sullivan QC and R Yuen for the appellant 
N Loos for the respondent 	
SOLICITORS:	Thynne + Macartney for the appellant 
City Legal – Brisbane City Council for the respondent 	

[1]	This is an applicant appeal against the council’s refusal of a development application seeking a preliminary approval for building work in order to facilitate the demolition of a house at 13 Borva Street, Dutton Park.  The subject dwelling is a house that was built sometime between 1927 and 1930.  
[2]	The land on which the house sits is located within the Character (Infill Housing) Zone and the Environmental Management Zone.  It is included in the Dutton Park/Fairfield District Neighbourhood Plan and is mapped within the Traditional Building Character Overlay.  The application was code assessable and fell for assessment against the Traditional Building Character (Demolition) Overlay Code.  The appeal to this court is by way of hearing anew.  The appellant has the onus to establish that the appeal should be upheld.
[3]	Section 60(2) of the Planning Act 2016 (Qld) governs decisions on applications which require code assessment.  It requires the decision-maker to approve the application to the extent that the development complies with all of the assessment benchmarks for the development.  It goes on, however, to confer a discretion to approve an application even if the development does not comply with some of the assessment benchmarks. The decision-maker may impose development conditions on an approval.  The application may only be refused if it does not comply with some or all of the assessment benchmarks and compliance cannot be achieved by imposing conditions.  
[4]	The issues in dispute were initially agreed for the purposes of the appeal as being those set out in exhibit 1.  However, those issues were narrowed in the course of the hearing. Ultimately, the council was prepared to narrow its case so that it relied upon the appellant’s failure to demonstrate compliance with the Traditional Building Character (Demolition) Overlay Code by being able to show that it fell within Acceptable Outcome 5(c) or otherwise met performance outcome PO5(c).  
[5]	PO5(c) is that development involves a building which does not contribute to the traditional building character of that part of the street within the Traditional Building Character Overlay.  AO5(c) is that development involves a building which, if demolished, will not result in the loss of traditional building character.  It was common ground that the building, which is sought to be demolished, is one which is possessed of traditional building character.  As Williamson QC DCJ pointed out in Taylor v Brisbane City Council [2020] QPELR 1080 at 1084, however, that a dwelling is of such a character is not the end of the enquiry.
[6]	The acceptable outcome calls for an assessment of the contribution the dwelling makes to the street in traditional building character terms.  That was the focus of the evidence in the case and was the basis of the disagreement between the experts in relation to whether the demolition would offend the provisions upon which the council relies.  
[7]	In order to assess the contribution, if any, of the subject dwelling to the traditional building character on the part of the street covered by the Traditional Building Character Overlay and the loss of traditional building character which would result from the demolition of the building, it is necessary, in this case, to examine the relevant part of the street and its characteristics and, in particular, the things which contribute to its traditional building character as well as to assess the subject house and its contribution and the loss, if any, which its demolition would cause.
[8]	Borva Street runs roughly parallel with the river and has a generally east-west orientation.  It is accessed from Bower Street.  The topography features a slope towards the river.  As one turns from Bower Street into Borva Street, one is confronted with a split-level road with a well vegetated centre island which separates the higher part of Borva Street furthest from the river to the lower side which is more proximate to the river.  As one proceeds along the higher part of Borva Street, there are two pre-1947 buildings within the Traditional Building Character Overlay, but little attention was paid to them, because they are both well separated, both in distance and elevation, from the lower part of Borva Street in which the subject site lies.  
[9]	As one proceeds further along the higher side of Borva Street there is a narrow laneway which leads along the frontage of an institution which is not part of the overlay.  The main part of Borva Street then proceeds downwards towards the lower part of the street where the island ends.  The lower part of Borva Street is entirely within the Traditional Building Character Overlay from its eastern end to its western end where it intersects with Rosecliffe Street.  At the eastern extremity of the lower part of Borva Street, however, there is a modern dwelling and then a vacant parcel of land.  
[10]	As one travels in a westerly direction one then travels past three pre-1947 buildings, the last of which is the subject property, before coming to a modern house, following which there are two more pre-1947 buildings, the last of which is at the western extremity of the lower part of Borva Street.  Given the relative isolation of the two pre-1947 buildings fronting the upper part of Borva Street, the potential contribution of the subject property is a contribution towards the traditional building character afforded to Borva Street by reason of the five pre-1947 buildings on the lower part of Borva Street.  It is therefore relevant to have regard to those buildings and the traditional building character of that part of the street to which they contribute.  
[11]	In carrying out such an assessment, it is relevant to have regard not just to the built form itself, but to other matters including the setting of the buildings.  So much is apparent from the Traditional Building Character Planning Scheme Policy. A policy which provides guidance or advice about satisfying an assessment benchmark which identifies the policy as providing that guidance or advice.  The Traditional Building Character Demolition Overlay Code identifies the policy in a note to section 8.2.21.1.
[12]	Being a policy, it is not to be rigidly applied.  Its purpose is, as I have noted, to provide guidance or advice.  Insofar as setting is concerned, the policy refers to the traditional settings of dwelling houses in older suburbs as being a fairly uniform building line with individual front gardens punctuated by a pedestrian path and a single-width driveway.  It speaks of the setting of new buildings and the prospect of them detracting from the character of a street if orientation or setbacks conflict with traditional settings or if garages dominate.  
[13]	The way in which the buildings have been built on the lower part of the street has obviously been affected by the topography and, in particular, by the fact that the land slopes towards the river.  That slope is more or less steep on the different lots.  As one progresses in a westerly direction along the lower part of Borva Street, the first pre-1947 building has been effectively built out to the front boundary of the property and is dominated by accommodation for vehicles.  
[14]	The next property is at 17 Borva Street.  It has a setback of some 4.54 metres.  Because of the slope of the land, the house sits a little lower than the street level, but only in the order of about half a metre.  As might be expected, it has a front timber paling fence of domestic scale and some vegetation in the front yard, which screens the view to part of that house, but the house itself rises well above the level of the fence and it can easily be appreciated, notwithstanding that it is partly screened by vegetation.  The house obviously presents itself to the street in a design sense, so, for example, it has its main gable addressing the street.  There is a single car garage on the street’s edge at the western end immediately adjacent to the boundary of the subject site.  
[15]	The next property is the subject site, to which I will return a little later.  The house which is immediately to the west of the subject house is a modern dwelling built at street level which has a double car garage at the street frontage and a design which otherwise presents itself to the street.  
[16]	The next house to the west is the pre-1947 house at 5 Borva Street.  It sits very close to the street boundary with a setback of less than one metre.  It is almost at grade up to the footpath.  The front elevation of the house features a front open verandah.  
[17]	The last house in Borva Street is number 1 Borva Street, which is the last of the pre-1947 houses.  It also sits very close to the street boundary and obviously presents itself to Borva Street, presenting both its main gable and its verandah to the street frontage.  There is some minor low level landscaping at the front, which provides some minor screening at a low level of the street elevation.  At its eastern extremity is a provision for a doorway to a vehicle entrance.  
[18]	What can be appreciated from the above brief description of the other pre-1947 houses in the lower part of Borva Street is that they are at or reasonably close to the street alignment.  They express their architectural features to the street and are all at or about the street level and are all readily visible along the streetscape of Borva Street.  In the course of describing those houses, I mentioned the modern dwelling at 9 Borva Street not to mistake it for a traditional character building but to describe its location because it is relevant to observations which I will make later about the visibility of the house on the subject site.  
[19]	The building on the subject site is in relevant respects the odd one out in relation to those buildings in the lower part of the street which are of traditional building character.  Firstly, it is a building which does not, in its design, seek to present itself to the street.  Instead, it expresses its main design features in its impressive elevation to the river.  The elevation of the building which faces the street is, as Mr Elliott described, relatively unarticulated.  That is not to say that it contains no features consistent with traditional building character.  Indeed, Mr Elliott conceded, in the course of cross-examination, that when one looks at that face of the building, one can still identify features which are of traditional building character.  But insofar as an assessment of the contribution which the building makes to the traditional building character of the street, it is relevant to have regard to the fact that, unlike the other character houses in the street which express their traditional character to the street in an overt way, the subject building does not have a façade which seeks to express itself to the street in the same way as the other pre-1947 houses in the street do.  They are some things Mr Kennedy acknowledged in the course of his testimony.  See T2-50 and T2-53.
[20]	There was some debate between Mr Elliott and Mr Kennedy about whether this characteristic of the building amounted to a reverse orientation.  Mr Elliott saw the building as being of an asymmetrical hybrid style that had its orientation reversed so that it faced the river and turned its back on the street.  Mr Kennedy saw the dwelling more as a unique design but one which he saw as having a California bungalow influence. That seemed to be relevant to his rejection of the concept of the house having turned its back on the street.  I found his evidence about the California bungalow influence to be unimpressive.  He was unable to point to much in the course of his cross-examination to support the contention that the house in question is, in any substantial way, one influenced by the California bungalow.  In the end, he seemed to rely simply on a verandah component.
[21]	Insofar as categorising the style of the house is concerned, I prefer the evidence of Mr Elliott, but it probably matters little at the end of the day.  The fact of the matter is that, whether one takes Mr Kennedy or Mr Elliott’s view about the stylistic description of the building, it is abundantly clear that the building expresses itself, including its primary traditional building components, to the river frontage rather than to the street frontage.  Whilst the street facing side of the building still retains some traditional character elements, it is not a façade which, in any meaningful sense, addresses itself to the street, whereas we know that the other houses of traditional building character in the street do.  
[22]	When acknowledging this, Mr Kennedy speculated that the designer of the house probably did not see the need to seek to address the façade towards the street because, “It was down sort of pretty low”.  That is a reference to at least one other respect in which the subject building is an outlier.  I have already observed that the other houses of traditional building character in this part of the street are positioned at or close to their front boundaries and so have a very direct connection with the street.  Of the other houses, the one that is set furthest back is the neighbouring house, at 17 Borva Street, which is set back some 4.54 metres.  But even then, the house is relatively proximate to the street and certainly sufficiently so, to have a fairly direct connection with the street.  That is not so with the subject house.  
[23]	The subject house is set back a substantially greater distance, namely, 8.47 metres.  Counsel for the respondent, in its submissions, pointed out that, whilst setback is a relevant consideration, the extent of the setback, in terms of metres, is not extreme and is less than in some other cases that have come before the Court. That may be so, but it is not simply the quantum of the setback which is of relevance here, but the combined effect of the setback and the topography and the positioning of other built form.  The topography is such that the subject site is particularly steeply sloping.  
[24]	The consequence of setting the building back by 8.47 metres from the street frontage then setting the front of the building at ground level, on such a sloping site, is that the house is set at between approximately 3.14 and approximately 3.49 metres below the street level.  
[25]	The consequence is that the façade of the building, up to about the gutter level, is at or below the street level.  Ignoring the roof, the house is otherwise subterranean, in its relationship to the street level.  The combined effect of the much greater setback in the horizontal plane, and a dramatically lower elevation of the building in the vertical plane, markedly reduces any connection that the building would otherwise have had with the street.  This certainly puts it in a completely different category to the houses of traditional building character in the street otherwise.
[26]	There is another effect, too.  I have already observed that the neighbouring house of traditional building character to the east, although set back 4.54 metres from the street alignment, has a garage building, which extends from the house, out to the street frontage, immediately adjacent to the eastern boundary of the subject site. Immediately adjoining that garage is the double garage on the subject site, which presents its contemporary metal doors to the street frontage.  That garage building takes up approximately one third of the street frontage. The floor level of that garage building is at about street level and so is at about the level of the gutter of the house which is set below it.  
[27]	The house immediately to the west of the subject site has, as I have observed, a double garage which extends out to the street alignment and which immediately adjoins the western boundary of the subject site.  In between those garages which front the street either side of the subject site, the subject house is set back in distance and down in elevation.  The consequence is that the subject house would be potentially visible from only a relatively short section of Borva Street in any event. That is because, as one proceeds on the lowest part of Borva Street in a westerly direction, the view of the house would be obstructed by the houses and the garages, between the viewer and the house.  If one were approaching the property by travelling on Borva Street from the west, the view would be obstructed by the development of the new house and garage on the property at 9 Borva Street.  So much is apparent from the photographic evidence which is before the Court.
[28]	Mr Kennedy presented a notional view from a viewing point on the lower part of Borva Street, taken from the street, from a position approximately in line with the western boundary of the subject site.  He described that as the most exposed potential view.  It should be borne in mind that it is a view that would not be available for any extended length along the street.  
[29]	Mr Kennedy also presented a notional potential view, looking down towards the site from the upper part of Borva Street.  Any potential view of the subject site from the upper part of Borva Street is extremely limited.  That is so because of the well-vegetated nature of the island, which separates the upper and lower portions of the street.   
[30]	Mr Kennedy acknowledged that the point from which he had done his notional potential view was the first point at which you would obtain a notional potential view.  Once one proceeds past that point, the street descends down to the lower part of the street.  In effect, as one was proceeding along the upper part of Borva Street, the notional potential view presented by Mr Kennedy would be nothing more than a momentary glimpse.  
[31]	Whilst Mr Kennedy remained focused on the potential from these limited viewing points to observe the side of the building facing Borva Street, and such character elements as it has, in contending that the building makes a positive contribution and should remain, Mr Elliot considered that, whilst that elevation contained some elements of traditional building character, the combined effect of the matters to which I have referred, namely, what he referred to as the reverse orientation of the house and its relatively unarticulated street elevation, together with the combined effects of its much greater setback in the horizontal plane, and separation in the vertical plane and reduced visibility resulting from the garage structure, was such that a demolition of the building would not result in a meaningful or significant loss of traditional building character from the Borva Street streetscape.
[32]	I prefer Mr Elliot’s evidence to that of Mr Kennedy, who, to my mind, placed insufficient weight on the factors which diminish the contribution of the house to the traditional building character of the street, and in doing so, wrongly concluded that there would be some material loss occasioned by the demolition of the building.  I am fortified in that conclusion by another factor, which was not taken into consideration by the experts in their joint report, but which I agree with the submissions for the appellant, should be taken into account.  
[33]	The reality is that the house is virtually invisible from Borva Street, or at least as Mr Kennedy conceded, its visibility is greatly restricted. Further, the momentary glimpse from the upper part of Borva Street would currently only be to part of the roof of the building.  The rest of the features of the building, which may be said to give it traditional character can simply not be seen.  That is so, because of vegetation which currently exists in the front garden space of the property, between the front property boundary and the building.  
[34]	There is, at the front alignment of the property, an immediate drop off, or small wall, down into the subject property.  That would ordinarily be a cause for concern for people falling if there was not some barrier.  At the moment, that is taken care of by way of a hedge, which extends along the front of the property between the double garage and an entrance gate.  At the moment, that hedge exceeds two metres in height.  The evidence is that it is somewhat higher than when the property was bought by the appellant. Photos of the property from before it was purchased by the appellant show the hedge in a better maintained state at around two metres in height.  Behind that hedge, there are some terraces within the front garden space of the property, and on the lower terrace, there are some mature trees and light shrubs, the foliage of which provides further screening to the house and, indeed, screening which exceeds the height of the front hedge.  
[35]	The analysis which the experts undertook was an analysis on the assumption that they had to disregard any vegetation on the subject site.  In that regard, Mr Kennedy, ultimately, produced some visual aids by way of some super imposed images produced by a CAD exercise. The exercise for the view taken from the lower part of the street was demonstrated to have included some errors.  Further, such an exercise obviously does not give the same presentation as a photo montage, but it was sufficient to demonstrate that on the hypothetical assumption on which they worked - that is, the assumption that one notionally removes any potential screening by vegetation that one could, from the particular vantage points that were chosen, be able to see a not insignificant part of the elevation of the house which faces the street.  It was on that basis that they then went on to express their conclusions, and I have given my reasons for favouring the conclusions reached by Mr Elliot on that basis.  
[36]	I should add in that regard that one of the things to which Mr Elliot drew attention was the fact that the street elevation of the subject house sits on the ground, rather than being elevated, but that is not something upon which I have given any weight, since that is not something which is out of kilter in relation to the other buildings of traditional character on the street.  
[37]	There is no particular warrant in the provisions of the code or, indeed, the policy to ignore the vegetation which forms part of the setting of the building when assessing its contribution or assessing what the effect of the loss occasioned by demolition would be.  This Court has, in Hamilton v Brisbane City Council [2016] QPELR 592, previously taken the effect of vegetation into account.  
[38]	I accept the respondent’s point that some care needs to be taken when doing so, given the dynamic nature of vegetative screening.  In short, it is something which can vary from time to time, and so the extent of screening at a particular point in time may not be indicative of the contribution that a building of traditional character makes in an enduring way.  It was pointed out that the Court would be slow to enshrine a principle which could lead to the owners of buildings of traditional character being rewarded for taking actions to defeat the operation of the demolition code by taking steps to screen their buildings so as to get permission to demolish them.  I can understand why there would be concern if an applicant acted in that way.  
[39]	There is no suggestion that that is the case here.  Historical photography shows that there has been vegetation in the front area of this garden historically, although it is impossible to tell from the aerial photographs to what height.  The evidence shows that the vegetation to which I have referred is well-established vegetation, which has obviously been there for a lengthy period of time.  The experts proffered estimates in the range of two or three decades.  The vegetation might not have always been of its current height, but it would not have to be of that height in order to substantially screen the building and, in particular, the elements of traditional building character, or at least those other than the roof or parts thereof.  
[40]	One of the consequences of the building being set so far back and so far down, relative to the street frontage, is that there is a relatively generous garden area for plantings. Another consequence is that plantings or screening structures such as domestic paling fences of an ordinary domestic scale are likely to have a substantial screening effect much more readily than would be the case for a house set at or about street level, as is the case for the other buildings of traditional building character in the street.  When one looks at the exercise done by Mr Kennedy with respect to the potential view from the lower part of the street, one can easily see that even a screen to a height of 1.2 metres above street level, which by reference to exhibit 9, pages 2 and 17 is a height of a little above the letter box, would screen the areas below the roof.  
[41]	The fact that a house set back behind a front garden of this dimension, and down at the level that this house has been set, has become substantially screened by vegetation is something that falls within reasonable expectations.  To assess the contribution of this house to the traditional building character of the street, or whether its demolition would result in the loss of traditional building character, on the basis that it can be viewed from Mr Kennedy’s vantage points completely unrestricted to any extent by any vegetation is artificial.  It does not accord with the facts as they stand, and given the longstanding and well established nature of the vegetation, and the aspects of the setting of the house to which I have referred, there is no sufficient basis upon which to find that it is a scenario which has any real likelihood in the future in the event that this application were refused.  That is not to say that a different degree of weight might be afforded to vegetation in different circumstances, but in the circumstances of this case, it seems to me that the vegetation should be considered, and when one gives it consideration it strongly fortifies the conclusion to which I have otherwise come.
[42]	I am conscious that Mr Kennedy described the subject house’s traditional building character as obvious in Borva Street, even with the vegetation in place.  In the course of cross-examination, he sought to hold on to that view by reference to the photograph taken from the viewing point in the upper part of the street which showed that, with the vegetation in place, there would be a glimpse of part of the roof.  To say that that makes the subject house’s traditional building character obvious in the street stretches credulity.  It is something I reject.  It is not an observation which reflects well upon the degree of objectivity which he brought to his assessment in this case.
[43]	For the reasons which I have given, I have come to the conclusion that any loss of traditional building character resulting from the demolition of the subject building would not be one which is meaningful or significant.  
[44]	Both the appellant and the respondent proceeded, correctly in my view, on the basis that the assessment of the proposal against A05(c) of the code requires an examination of the loss to be examined in terms of the loss of traditional building character from that part of the street within the Traditional Building Character Overlay area, and an assessment of whether there would be a loss which is meaningful or significant. That is consistent with the approach in Taylor & Anor v BCC (supra) at [18]. 
[45]	For the reasons I have given, there would be no meaningful or significant loss, in my view.  Accordingly, the development complies with AO5(c) and is therefore compliant.  The appellant had put forward discretionary reasons as to why approval should be granted even if there was found to be some noncompliance.  Those grounds were largely repetitive of the basis for finding that there would be no material loss of traditional building character.  Senior Counsel for the appellant, ultimately, put it on the basis that if, for example, I had been of the view that there was some noncompliance because I had to ignore the onsite vegetation, then I would approve nonetheless because any loss would be minor, and the vegetation could be had regard to as a discretionary factor.  For the reasons I have given, I am not in that position.  For those reasons given, the appeal will be allowed.