Alloa Properties Pty Ltd v Brisbane City Council
[2017] QPEC 51
•25 August 2017
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Alloa Properties Pty Ltd v Brisbane City Council & Ors [2017] QPEC 51
PARTIES:
ALLOA PROPERTIES PTY LTD (ACN 097 064 938)
(appellant)
and
BRISBANE CITY COUNCIL
(respondent)
and
DONALD WATSON
and
ROBERT RIDDEL
and
LOUISE NOBLE
(co-respondents by election)
FILE NO/S:
2828 of 2016
DIVISION:
Planning and Environment Court, Brisbane
PROCEEDING:
Hearing of an appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
25 August 2017
DELIVERED AT:
Brisbane
HEARING DATE:
17 to 19 and 22 to 26 May 2017 and 1 to 4 August 2017
JUDGE:
RS Jones DCJ
ORDER:
1. The appeal is dismissed;
2. I will hear from the parties if necessary as to any consequential orders.
CATCHWORDS:
APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – where respondent refused to approve a development application for preliminary approval and a development permit – Material Change of Use – Multiple Dwelling– where proposal involved partial demolition and relocation of a local heritage place located in Bowen Terrace, New Farm.
CONFLICT WITH PLANNING SCHEME – whether proposal in conflict with the strategic intent of the strategic framework of the Brisbane City Plan 2014 to the extent of Design, Character and Heritage – whether conflict with Theme 2 Brisbane’s outstanding lifestyle provisions under City Plan 2014 – whether conflict with Low-medium Density Residential zone – whether conflict with the New Farm and Teneriffe Hill neighbourhood plan – whether conflict with Multiple Dwelling Code of City Plan 2014 – whether conflict with the Heritage Overlay Code under City Plan 2014.
SUFFICIENT GROUNDS – in the event that there was conflict with the planning scheme were there sufficient grounds for the purposes of s 326 of the Sustainable Planning Act 2009 to warrant approval notwithstanding the conflict.
Planning & Environment Court Rules 2010
Sustainable Planning Act 2009
Uniform Civil Procedure Rules 1999
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63
Meridien AB v Jackson [2013] QCA 121
Weightman v Gold Coast City Council [2003] 2 Qd R 441
COUNSEL:
Mr R Litster QC with Mr M Batty for the appellant
Mr Job for the respondent
SOLICITORS:
CO-RESPONDENTS:
HWL Ebsworth Lawyers for the appellant
Brisbane City Legal Practice for the respondent
Dr Watson in person
Dr Riddel in person
This proceeding is concerned with an appeal against the respondent’s decision to refuse a development application for preliminary approval – partial demolition of a local heritage place and a development permit – Material Change of Use – Multiple Dwelling (4 units). For the reasons set out below, the orders of the court are:
1. The appeal is dismissed;
2. I will hear from the parties if necessary as to any consequential orders.
Location and planning regime
The subject land is located at 388 Bowen Terrace, New Farm and is more particularly described as Lot 13 on RP 54676. It comprises an area of approximately 1,292m².
Not surprisingly given the location of the land, it is subject to a number of parts of the respondent’s Brisbane City Plan 2014 (“the planning scheme”). It is identified as being within the Low-medium Density Residential Zone (two or three storey mix), the New Farm and Teneriffe Hill neighbourhood plan and the following overlays:
(i) Airport Environs Overlay;
(ii) Bicycle Network Overlay;
(iii) Critical Infrastructure and Movement Network Overlay;
(iv) Dwelling House Character Overlay;
(v) Heritage Overlay; and
(vi) Road Hierarchy Overlay.
The land is currently improved by a single heritage-listed dwelling house. On or about 2 February 2016, Plan A Group Pty Ltd, acting for and on behalf of the appellant, lodged the subject application with the respondent. That application was accepted as being properly made on 16 February 2016. The application required impact assessment under the planning scheme, but no referral agencies were involved. By letter dated 1 July 2016, the respondent notified the appellant that it had refused the application.
Grounds of appeal and relief sought
The grounds of appeal, in essence, are as straightforward as assertions that the proposed development was not in conflict with the alleged provisions of the planning scheme or, in the alternative, could be made the subject of conditions which would make the development compliant.[1] In the further alternative, in the event that the proposal was in conflict with the planning scheme, there were sufficient grounds for the purposes of s 326 of the Sustainable Planning Act 2009 (“SPA”) to justify approval notwithstanding the conflict. However, as Mr Ovenden (the town planner relied on by the appellant) acknowledged, the sufficient grounds relied on would only win the day in the event that the conflict was relatively minor, that is, not involving “serious” or “fundamental” conflict.[2]
[1]See Amended Notice of Appeal para 10.
[2]T11-23, ll 6-24: T11-31 ll 23-30.
There were 37 adverse submissions made in respect of the proposal.[3] In addition to the respondent, three co-respondents by election joined in the proceeding opposing the proposed development. An appeal to this court by way of hearing anew[4] and the onus is on the appellant to establish that the appeal should be upheld.[5]
[3]Exhibit 3.
[4]Sustainable Planning Act, s 495(1).
[5]Ibid, s 493(1).
The witnesses called
Historians
Mr Richards for the appellant, Dr Bennett for the respondent, Dr McKay for Dr Watson, and Ms Hill for Dr Riddel.
Heritage, landscape and gardens
Ms Brouwer for the appellant, Mr King for the respondent, and Mr Taylor for Dr Watson.
Visual amenity
Mr McDonald for the appellant, Ms King for the respondent, and Mr Marquis-Kyle for Dr Watson.
Heritage architecture
Mr McDonald for the appellant, Mr Kennedy for the respondent, and Mr Marquis-Kyle for Dr Watson.
Town planners
Mr Ovenden for the appellant and Ms Maguire for the respondent.
Photo montage
Mr Elliot for the appellant (not required for cross-examination).
Lay witness
Mr Allan for the appellant.
The existing and past improvements
Located on the land is an outstanding house designed by the renowned architect, Robin Dods. The house has been occupied by a number of prominent Brisbane families, including one Premier of this State, Edward G Theodore, and has been given several names including Feniton, Almaden and now, Fenton. While more will be said about these matters below, in the respondent’s Heritage Citation the house is described in the following terms: [6]
“‘Fenton’, as it was originally known, was designed by renowned architect Robin Dods (Hall & Dods) and built in 1907 for John Elworthy Trude, a Brisbane barrister. In 1918 the property was transferred to Labor politician, Edward Granville Theodore. He renamed it ‘Almaden’ after the small town in North Queensland where he had his first major victory.
…
This substantial single-storey timber dwelling reflects features that distinguished Dods’ domestic work. These include the steeply pitched roof which overhangs large verandahs and the well-crafted timber work. Dods designed a large number of dwellings in Brisbane, including his own (demolished) on the corner of Sydney and Abbott Streets and one adjacent at 41 Abbott Street (extant).”
[6]Exhibit 1.
It would appear that that description is not entirely accurate in that the original name was not Fenton, but “Feniton”. Additionally, the reference to John Trude as a barrister is also incorrect, in that he was a successful businessman or merchant. There was a personal connection between Mr Dods and Mr Trude. More will be said about that relationship below.
The current external physical characteristics of the dwelling are reflected in a number of documents.[7] Not surprisingly, since its original construction (circa 1906) there have been a number of physical changes to the residence itself and its surrounds, particularly as it presents to Bowen Terrace. Because of the existing garden, it is materially more screened off from that street now when compared with at or about the late 1920s to 1934.[8] Also, as a consequence of subdivision of the original lot circa 1938 and the construction of a house to the southeast on lot 404, significant garden areas were lost; in total 741m2. The tennis court was not part of the original use of the land when owned by Mr Trude and, given no reference to tennis in Ms Rowbotham’s memoirs,[9] it seems likely that the tennis court came after the Theodore ownership and probably after the land was subdivided and the house built on lot 404. As Mr McDonald (the heritage architect relied on by the appellant) reports, the setting of the house has changed considerably over time,[10] a description I accept.
[7]E.g. Exhibit 9, p 4 and Exhibit 17, p 7.
[8]By way of example, compare Exhibit 9, p 4 to Exhibit 18A and 18B (photograph of original house most likely circa late 1920s to 1934).
[9]Exhibit 35.
[10]Exhibit 17, p 6.
As can be seen from the photograph taken circa 1934, when compared to those taken more recently, the house was more prominent when viewed from the street than it is now. In the event that the proposal were to go ahead, it would be even more prominent.
The evidence also reveals that as a part of the introduction of the denser and more lush garden, the original location of paths in the front yard have also been materially changed.[11] Indeed, the evidence establishes that over time, the way the house presented to Bowen Terrace varied, sometimes to a material extent. Circa 1907 to the late 1990s, under the Trude ownership, the garden would probably have been quite densely planted.[12] During the Theodore ownership (circa 1918-1933), it seems likely that the “extensive garden” would have been retained, but not necessarily in an identical form as under the Trude regime.[13] During the Steindl ownership (circa 1933-1988) the garden was probably culled and thinned out, making the house more exposed to Bowen Terrace.[14] More recent aerial photographs suggest that the house probably remained relatively exposed to Bowen Terrace up until Albert Kucelli’s ownership (circa 1988 up until when he died in 2009).[15] Under Kucelli’s stewardship, the garden evolved into a densely planted and lush garden, largely as it presently exists.[16] Other changes in the front yard, in addition to the planting and pathways, include changes to some garden structures,[17] and the introduction of a brick fence wall at or about the mid-1920s.[18]
[11]Compare Exhibit 10, p 33 to Exhibit 6, p 8. See also Exhibit 40.
[12]See Exhibit 12, pp 31-33.
[13]Exhibit 35, “My Father’s Daughter”: Myra Rowbotham. See also Exhibit 12 pp 42, 43 and 44. Here also refer to evidence of Ms Brouwer. T5-87 to T5-88 and also evidence of Mr Taylor T6-9 to T6-10.
[14]Exhibits 18A and 18B and also evidence of Ms Brouwer T5-87 to T5-88.
[15]Exhibit 12 pp 54, 55, 56, 57, 58 and 60.
[16]Ibid pp 62, 63 and 77; Exhibit 9 pp 2 and 4.
[17]Exhibit 12 p 127.
[18]Exhibit 17, para 4.27. See also Exhibit 12 p 8.
Other physical changes include those to the house itself, being the removal of a substantial ‘piazza’, steps, a landing and what is described as a “roofed over” area at the south-eastern side of the house.[19] Those steps would have led down to the yard and garden. Further, the original steps and the pergola that stood proud on those front steps are no longer present.[20] Although there was no direct evidence about this, it is likely that the pergola could be replicated if thought appropriate. There are also some physical changes to the front verandah. The existing colour scheme is also not typical of Dods’ use of external colours. An extensive list of physical changes is set out in Mr McDonald’s contribution to the joint expert report (JER).[21] There is some dispute about whether it was the dining room windows on the front kitchen that were replaced, but little, if anything, turns on that matter. More will be said about these changes when dealing with the various heritage experts relied on by the parties.
[19]Probably between 1938 when land subdivided and 1941 when the house was constructed on lot 404: Exhibit 12, p 47 [94].
[20]These features of the house can be seen in Exhibits 18A and 18B.
[21]Exhibit 16, p 16, para 23.1(t).
Some introductory heritage issues
The planning scheme deals with a number of heritage related matters, including criteria for inclusion in the Heritage Overlay. It relevantly provides:[22]
[22]Exhibit 5, p 260.
“(1)Premises can be included in the Heritage overlay in the Local heritage place sub-category if it meets one or more of the following cultural heritage values:
(a)it is important in demonstrating the evolution or pattern of the city’s or local area’s history;
(b)it demonstrates rare, uncommon or endangered aspects of the city’s or local area’s cultural heritage;
(c) it has potential to yield information that will contribute to the knowledge and understanding of the city’s or local area’s history;
(d) it is important in demonstrating the principal characteristics of a particular class or classes of cultural places;
(e) it is important because of its aesthetic significance;
(f) it is important in demonstrating a high degree of creative or technological achievement at a particular period;
(g) it has a strong or special association with the life or work of a particular community or cultural group for social, cultural or spiritual reasons;
(h) it has a special association with the life or work of a particular person, group or organisation of importance in the city’s or local area’s history.”
Under the heading “Statements of Significance” in the subject Heritage Criterion, the following values are identified:[23]
[23]Exhibit 1, p 2.
“This is a place of local heritage significance and meets one or more of the criteria for entry in the Heritage Register of the Brisbane City Plan 2000. It is significant for the following reasons:
(a) it is important in demonstrating the evolution and pattern of the city’s or local area’s history as demonstrating the continued growth of New Farm in the first decade of the 20th century when Bowen Terrace was considered to be one of Brisbane’s most prestigious residential addresses;
…
(d) it is important in demonstrating the principal characteristics of a particular class or classes of cultural places as a good example of a fine timber federation-era residence;
(e) it is important because of its aesthetic significance for the house’s fine design featuring a dominant roof form and restrained timber detailing as well as its attractive garden setting;
(h) it has a special association with the life or work of a particular person, group or organisation of importance in the city’s or local area’s history as the home of Edward Granville Theodore when he was Premier of Queensland.
(And) it has a special association with the life or work of a particular person, group or organisation of importance in the City’s or Local area’s history as a fine example of a residence designed by influential Brisbane architect R.S Dods.”
A note to the Heritage Criterion provides in part:[24]
“…the statement of significance is a summary of the most culturally important aspects of the property based on the available evidence and may be re-assessed if further information becomes available. The purpose of this summary is to provide an informed evaluation for heritage registration and information. This does not negate the necessity for a thorough conservation study by a qualified practitioner, before any action is taken which may affect its heritage significance.” (Emphasis added).
[24]Ibid p 3.
Importantly in this regard, there is a note that follows the guidelines provided for the preparation of the heritage impact assessment report. That note provides:[25]
“Note – where a criterion exists for a site in the local heritage place sub-category or State heritage place sub-category, the heritage impact assessment need only address the cultural significance items listed in the criterion, if no criterion exists for a site located in the local heritage place sub-category or State heritage place sub-category, then a comprehensive assessment of the cultural significance of the site must be undertaken in accordance with the conservation processes and principles outlined in the Burra Charter: the Australia ICOMOS Charter for Places of Cultural Significance (1999).” (Emphasis added).
More will be said about the interrelationship between this note and the subject heritage criterion below.
[25]Exhibit 5, p 263.
The proposed development
In the “Summary” included in the IDAS material, it is identified that:[26]
[26]Exhibit 2, p 24.
“The proposal includes:
·Retention of the existing heritage listed house on the site, known as ‘Fenton.’
·Construction of three townhouses to the rear of the heritage building and fronting Oxley Lane.
·Access to the townhouses via Oxley Lane and access to the heritage building to remain as existing to Bowen Terrace.
·Re-siting the existing heritage building towards Bowen Terrance to allow appropriate onsite building separation.
·Demolition of ancillary features of the heritage building to enable improved future use of the building.”
The reference to “improved future use of the building” is, among other things, a reference to the intention to raise and build in under the existing residence to provide for functional living areas. The existing underneath of the house could only be described as being in fairly dilapidated condition.[27] The re-siting of the house would see it moved forward toward Bowen Terrace from its existing 24m to 25m setback to a standard setback of 6m. In broad terms the area of the “front yard” would be reduced from about 550m² to about 140m². A comparison of the current situation with that proposed can be seen, to an extent, by reference to the book of photomontages.[28]
[27]E.g. Exhibit 17, pp 29-34, and Exhibit 57.
[28]Exhibit 9.
The proposal is shown in various plans and computer generated images in the IDAS material.[29] How the house will present to the street appears in various documents and, in particular, those showing a comparison between the existing situation and how the house would present to Bowen Terrace after development.[30] More will be said below about the comparison between the way the house now presents and how it would present to Bowen Terrace, if moved.
[29]Exhibit 2, Tab 6, pp 87-93 (amended but to no relevant extent by the unopposed minor change application dealt with on 24/5/2017).
[30]Exhibit 9, pp 2-7.
On the second day of the proceeding Mr Job, counsel for the respondent, articulated his client’s position concerning the proposed three townhouses fronting Oxley Lane. The following exchange took place:[31]
[31]Transcript (T) 2-3-2-4.
“Mr Job:The council's case, though, is for practical purposes, the relocation of the house is the threshold issue for your Honour.
His Honour: Yes.
Mr Job:It's tantamount, for example, to the character house considerations that your Honour has had in the past. You don't get to develop the site unless you overcome the threshold of demolishing or moving the character house and we're in that territory here. So to the extent that the multiple dwelling proposal necessitates the moving of the house here and that in turn affects the cultural heritage significance, the proposal is unacceptable. However, if your Honour is ultimately satisfied that the relocation of the house ought be approved, then council does not contend there's anything standing in the way of approval of the units themselves, quite obviously subject to conditions.
For completeness, your Honour will have seen material in the joint reports, including concerns expressed about impacts on the character of Oxley Lane. I appreciate that this is perhaps a little messy, but it's not part of council's case that there's any particular aspect of the design of the units themselves that affects the character. That said, again it's the fact of the units that necessitates the moving of the house, which is a problem. But, equally, the fact of the units - and I will if we use - just consider it as a block form - the fact of the units affects the character, because it affects the view and the aesthetics and so on that presently exist…
His Honour: Yes. I think what Mr Litster is getting at is - was related to a matter that you raised, which I understood you to say, in effect, to this - in effect this. That if I were to find that it was acceptable to relocate the house as proposed, there wouldn't be, from your client's perspective, any opposition to the development of the units - of the multiunit dwellings.
Mr Job:That is so, with one qualification, that in considering whether it's appropriate to move the house, a component of that - an element of that involves a consideration of the fact that there will then be built form - - -
His Honour: Yes.
Mr Job:- - - at the rear.” (Emphasis added).
The respondent’s position was consistent with the evidence of its town planner, Ms McGuire.[32]
[32]T10-109 L 6. Refer also to Mr Job at T9-74 ll 32-42 : T9-75 ll 1-20.
The issues in dispute
As already identified, the appellant’s case is essentially to the effect that the proposal does not conflict with the planning scheme. Alternatively, if it does conflict the level of conflict is relatively minor and can be addressed by the imposition of appropriate conditions. Further in the alternative, in the event that it was found that there was genuine conflict with the planning scheme, there are sufficient grounds to warrant approval despite the conflict. By reference to the grounds for refusal, it is contended on behalf of the respondent and co-respondents by election that the proposal is in conflict with:[33]
[33]See Exhibit 4.
· Section 3.2.1 – Strategic Intent of the Strategic Framework… to the extent of Design, Character and Heritage values are concerned.
· Section 3.2 Theme 2: Brisbane’s Outstanding Lifestyle of the Strategic Framework – Specific Outcome (“SO”) 19.
· Overall Outcomes (“OO”) 5(a), 5(b) and 5(h) of the Low-medium Density Residential Zone.
· PO’s 1 and 4 of the New Farm and Teneriffe Hill Neighbourhood Plan.
· PO’s 1, 5, 6, 9, 11 and 33 of the Multiple Dwelling Code.
· PO’s 1, 2, 3 and 4 of the Heritage Overlay Code.
The existing garden
While more will be said about the “Statement of Significance” below, as identified above, para (e) states that the house was set in an “attractive garden setting.” For some reason, the description as “attractive” attracted an unnecessary and time-consuming examination of the landscape/garden heritage witnesses. To some extent though, that was a consequence of some of the evidence given, particularly by Ms Brouwer.
In the relevant JER Ms Brouwer recorded in part:[34]
“CB considers that the garden is attractive to the degree that most gardens in Brisbane are attractive to owners and many viewers, however the garden setting at Fenton should meet a level of attractiveness (as that is the terminology in the register) that is commensurate with the architectural cultural significance and the Heritage Register criteria…”
[34]Exhibit 12, p 110, para 276.
Similar evidence was given in evidence in chief.[35] However, Ms Brouwer seemed determined to link the concept of “attractiveness” with the concept of “cultural significance.” While the two concepts may be interrelated, they are nonetheless separate and discrete concepts. During the course of cross-examination the following exchange took place between Mr Job, myself and Ms Brouwer:[36]
[35]T5-3 ll 23-33.
[36]T5-12 to T5-13 ll 1-11.
“Mr Job:Yeah, you say that as a fact. But what's your opinion about that? Is your opinion- - -?
Ms Brouwer: I-I don't - I think that the - a lot of the general public would say a garden is attractive foliage and space are attractive. I don't believe this has a degree of attractiveness that the garden for itself has cultural heritage significance.
Mr Job: Yes. I'm talking about the citation - - -?
Ms Brouwer: Yes.
Mr Job:- - - and the reference to the attractive garden setting?
Ms Brouwer: Yes.
Mr Job:Just confine it to the attractive garden setting. Do you agree that that's an apt description for this place? The house is within an attractive - - - garden setting? - - -
Ms Brouwer: it's - yes, one - the citation says that one could say that, yes.
Mr Job:And you would - - -
His Honour: I suppose – sorry.
Mr Job:No.
His Honour: I-I think we all know what the citation says. But if you and I were standing at the front of this house today and I was to say to you, ‘This house is set in - in an attractive garden setting.’ Would you disagree with my observation?
Ms Brouwer: I'd - I would certainly like to qualify it. If we knew that that house was on the local heritage register and designed by Dods - - -
His Honour: Leave aside whether the garden has got any association with Dods or - - -?
Ms Brouwer: Oh, I see.
His Honour: - - - and/or Theodore?
Ms Brouwer: Okay.
His Honour: Just as a matter of fact we're there, standing there, you and I today, on a nice pleasant day, and I say, ‘This house is set in an attractive garden setting’?
Ms Brouwer: I would start pointing out to you a lot of ways that it was not good enough for a- a garden - a place here - - -
His Honour: No, but - - -?
Ms Brouwer: - - - and the many ways we could improve it. So - - -
His Honour: - - - but, no, but - - -?
Ms Brouwer: - - - I would ask: you what you mean - - -
His Honour: - - - just as a - - -?
Ms Brouwer: I'd ask you by – ‘How attractive do you mean?’ I mean, by what- by what threshold are you understanding it, and then I could have a discussion with you about how attractive it is.
His Honour: I’m just a lay person - - -?
Ms Brouwer: Yep.
His Honour: As a lay person?
Ms Brouwer: Mmm.
His Honour: - - - you respond to me as a lay person, not - not as an expert in your area?
Ms Brouwer: Okay.
His Honour: But you're responding to me as a lay person, would you disagree with it, and if- or would you agree with it?
Ms Brouwer: Yes, I - I think I would. I would start saying, ‘Oh, it’ - you know, ‘I'd like to be able to see that house more. I think that's overgrown. I don't know why there's that characteristic of plant on that side and a different one on the other side and some sort of roses and cottage garden plants here and palms there.’ So I would enjoy a discussion about the quality of the garden and point out aspects that I would think are not - make it not so attractive as a whole.”
Later in cross-examination however, she was willing to accept that at least insofar as “the general public of Brisbane looking at gardens” was concerned, “some” might say the garden was an attractive garden setting.[37]
[37]T5-37 ll 17-45 to T5-38 ll 1-30.
While the garden is probably, as Ms Brouwer would put it, “awkward” and lacking in “harmony” and “style”,[38] or, as Mr Taylor would put it, lacking a sense of “cohesiveness” or “coherency”,[39] there is no doubt in my mind that it would be accurate to describe the house as being located in an attractive garden setting. On this topic I prefer the evidence of Messrs King and Taylor. I would even go so far as to say that in respect of this topic, a picture is worth a thousand words.[40] That of course does not mean the garden is also culturally significant or contributes to the cultural significance of the place. In this context, the “setting” or “siting” of the house is dealt with below.
[38]T5-4 ll 43-48.
[39]T6-17 ll 7-20.
[40]Exhibit 9 at pp 1, 2 and 4.
Background of and intentions of the appellant
A statement was provided by a Mr Duncan Allan, the CEO of the appellant. Mr Allan was not required for cross-examination. His evidence establishes that:
(i) He, together with his father and grandfather, have an extensive history of undertaking the renovation of heritage listed and character properties throughout Brisbane and, in particular, in the suburbs of New Farm, Red Hill, Paddington, Fortitude Valley and Spring Hill. Those generations have been responsible for the renovation of over three hundred properties in total, a significant number of which have been heritage listed or character properties.
(ii) The activities of the appellant include the acquisition, renovation, restoration and renting or selling of properties. The majority of the appellant’s income (or associated family entities) is derived from the letting of character or heritage listed properties.
(iii) The Allan family sees itself, among other things, as custodians of heritage built form and take considerable pride in their work.
(iv) The “business model” of the appellant is designed to “deliver an acceptable compromise between heritage and development.”[41]
(v) A strong underlying philosophical bent of the appellant is that it considers that making properties such as this available for use by the public contributes significantly to the community’s ability to appreciate such buildings.
[41]Exhibit 21 p 2, para 6.
In respect of the last matter, Mr Allan states:[42]
“If such properties cannot be brought up to today’s standards and adapted to modern use, there is a risk that they will fall into disuse and be unable to be appreciated by the general public for generations to come. Furthermore, if development is unable to proceed on such sites, there is no ability for developers and landowners to raise the necessary capital to undertake renovation and/or restoration to an appropriate standard.
…
In developing the subject premises, we hope to be able to deliver a townhouse development suitable for the New Farm area and to use the proceeds of that development to restore Fenton to its original glory. Moving Fenton forward on the block will also make it suitable for use as a family home, with a secure backyard suitable for children to play in as well as showcasing the beauty of the house and its heritage value.”
[42]Ibid at paras 5 and 7.
The evidence of Mr Allan was unchallenged and is accepted by me. That said though, it has to be recognised that notwithstanding Mr Allan’s current intentions, it could not be ruled out that at some future time the house might be sold to an unrelated party. That of course applies also to the townhouses but that is of little consequence in the scheme of things.
The town planning evidence
As is now often the case in proceedings such as this, the town planners gave their evidence after all the other expert witnesses had given theirs. However, in the circumstances of this case it is convenient to deal with the town planners at this stage. That is so for two principal reasons. First, there is no dispute that in the event that the cultural heritage values of Fenton were protected, the three townhouses fronting Oxley Lane would be an appropriate use of the balance of the land. As Mr Ovenden put it, the three townhouses would exist in “a sea of units” but it is not in dispute that they would be desirable and entirely consistent with the planning scheme. The second matter and, in my view, the most significant in this context is that the opinions of both town planners, insofar as it was relevant to the cultural heritage issues, were dependent upon the views expressed by those with expertise in other fields and, in particular, the historians, heritage architects and historical garden experts.
In the town planners’ JER, Mr Ovenden stated:[43]
“In my opinion, if the Court accepts the opinions of Messrs McDonald, Richards and Brouwer with respect to the importance of the heritage values of the site then there is no conflict with the provisions of City Plan. Should the Court accept their evidence, but still find there is conflict with the City Plan provisions with respect to the siting, scale and bulk of the development proposal, then any such conflict would not be significant, particularly in the context of the built form context in which the site sits. To assist the Court, grounds on why the application should be approved have been advanced in this JER should this be the case.” (Emphasis added).
[43]Exhibit 20, p 28, para 10.6.
Ms McGuire reported:[44]
“In my opinion, sufficient grounds do not exist to justify approval of the application in light of the significant conflict with the Heritage Overlay Code. In particular, while there have been some changes to the local heritage place of Fenton in the past, including excising of a portion of the eastern garden in the 1930s and changes to plantings and embellishments within the garden and grounds over the past 110 years. I rely on Mr Kennedy and Mr Marquis-Kyle cultural heritage experts and the historians Dr Bennett, Dr Mackay and Ms Hill that the local heritage place is important and contains significant cultural heritage significance.” (Emphasis added).
[44]Ibid p 30, para 10.17.
During the cross-examination of Ms McGuire, the following exchange took place between her and myself:[45]
[45]T10-94 ll 15-33.
“Q: …it seems to me that the counterpoint to that is if the court doesn’t accept (Messrs McDonald, Richards and Brouwer) then there would be conflict. Are you in the same boat? In other words, as a town planner, you rely – I’m not saying totally but in this particular case very heavily on the various historians, garden experts et al. that we’ve heard?
A:Correct, your Honour.
Q:And my findings in respect of those witnesses is really going to influence the town planning outcomes?
A:Correct, correct. So if the court accepts that, you know, the impact to the cultural heritage significance of the place is not concerning then from a town planning perspective, I don’t have any… issues with the proposal. So it all – it all hinges on cultural heritage.
In a similar vein during the cross-examination of Mr Ovenden the following exchange took place:
“Q: …in respect of paragraph 10.6 at p 28 – and excuse me if I’m stating the obvious, but you referred in your opinion etc. etc. that if I accepted Mr McDonald, Richards and Broweur then there would be no conflict?
A:That’s right.
Q:Or alternatively, if there was conflict it would be minor?
A:Yes.
Q:And, as I understand your evidence, the grounds that have been canvassed now would be sufficient to overcome that conflict?
A:That’s exactly the case, your Honour.
Q:Yes. And so, I suppose, inevitably the other side of that coin is that if the evidence of Mr McDonald, Richards and Broweur was rejected and the evidence of the others was accepted then the conflict would be significant and the grounds wouldn’t be sufficient to overcome that?
A:That – that’s – you’re right. That’s right, your Honour. You’d need compelling grounds in my opinion and so that – that’s my position.
Mr Job:And the grounds that you advance, you couldn’t classify as compelling?
His Honour: I think Mr Ovenden’s agreed with that.
Mr Job:Well I’m just making sure that’s the case your Honour.
Mr Ovenden: Yes, yes I do.
Without meaning any disrespect whatsoever to either Mr Ovenden or Ms McGuire, both highly respected town planners, I do not think their evidence needs to be canvassed in any further detail. Their opinions about the appropriateness of any impacts on cultural heritage values of Fenton are so dependent upon the opinions of the other experts that their respective conclusions sink or swim depending upon my determination concerning those other areas of expertise.
The Burra Charter
On a number of occasions during the course of this proceeding, reference was made to the “Burra Charter.”[46] That document, in particular, is called up by the operation of the Heritage Overlay Code of the respondent’s planning scheme (CP 2014). Section 8.2.12.2 of CP 2014 describes the purpose of that code in the following terms:[47]
[46]The Australia International Council on Monuments and Sites Charter for Places of Cultural Significance.
[47]Exhibit 5 p 136 – 137.
“(1) The purpose of the Heritage overlay code is to:
(a) implement the policy direction in the Strategic framework in particular Theme 2: Brisbane’s outstanding lifestyle… identity;
(b) provide for the assessment of the suitability of development on land in the Heritage overlay.
(2) The purpose of the code will be achieved through the following overall outcomes:
(a) development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values;
(b) re-use of a heritage place is compatible with its cultural heritage significance, including any Aboriginal cultural values and retains its heritage significance.”
Performance Outcomes (PO) 1, 2, 3 and 4 of the Heritage Code provide: [48]
[48]Ibid pp 137-138.
| Performance outcomes |
| PO1 Development provides for the future protection of the heritage place and does not damage or diminish its cultural heritage significance. Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with The Australia ICOMOS Burra Charter. |
| P02 Development is based on and takes account of all aspects of the cultural heritage significance of the heritage place. Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter - Cultural Significance. |
| P03 Development protects the fabric and setting of the heritage place while providing for its use, interpretation and management. Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter - Conservation Policy. |
| P04 Development is based on the issues relevant to the conservation of the heritage place. Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter - Procedures for Undertaking Studies and Reports. |
The respondent and co-respondents allege conflict with each of those POs for which no Acceptable Outcomes (AO) are prescribed. Each of those POs also call up various components of the Burra Charter for consideration “where necessary.” There was some debate about whether the 2013[49] or the 1999[50] version of the charter was applicable. On balance, I agree with Mr Job, counsel for the respondent, that under CP 2014, the latest version of that charter is to be used. However, in the context of this proceeding the distinction between the two charters is probably of little, if any, consequence when regard is had to the following definitions and explanatory notes.
[49]Exhibit 42.
[50]Exhibit 61.
Both provide under the heading “Why Conserve?”:
“Places of cultural significance enrich people’s lives… They are historical records, that are important in expressions of Australian identity and experience… They are irreplaceable and precious.
These places of cultural significance must be conserved for present and future generations in accordance with the principle of inter-generational equity.
The Burra Charter advocates a cautious approach to change: do as much necessary to care for the place and to make it usable, but otherwise change it as little as possible so that its cultural significance is retained.” (Emphasis added).
Also of significance in the context of this case are a number of definitions. Under both the 1999 and the 2013 charter, the following definitions appear in identical terms:
· “Place” means a geographically defined area. It may include elements, objects, spaces and views. Place may have tangible and intangible dimensions.
· “Cultural significance” means aesthetic, historic, scientific, social or spiritual value for past, present or future generations.
· “Cultural significance” is embodied in the place itself, its fabric, setting, use, associations, meetings, records, related places and related objects.
· Places may have a range of values for different individual groups.
There is, however, a distinction in respect of the definition of “setting.” Section 1.12 of the 1999 version defines “setting” in the following terms “setting means the area around a place which may include the visual catchment.”[51] Pursuant to s 1.12 of the 2013 version, “setting” is defined to mean “the immediate and extended environment of a place that is part of or contributes to its cultural significance and distinctive character.”[52]
[51]Exhibit 61 p 2.
[52]Exhibit 42 p 3.
Also, under the 2013 charter, an explanatory note provides:
“Setting may include structures, spaces, land, water and sky; the visual setting including views to and from the place and along a cultural route and other sensory aspects of the setting such as smells and sounds. Setting also includes historical and contemporary relationships such as use and activities, social and spiritual practices, and relationships with other places, both tangible and intangible.”
While there may be some distinction as between the definition of “setting” between the two charters, Article 8 of both under that heading provide:[53]
“Setting
Conservation requires the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place.
New construction, demolition, intrusions or other change which would adversely affect the setting or relationships are not appropriate.”
[53]Exhibit 61 p 4 and Exhibit 42 p 5.
Article 9, dealing with “location” is also identical in both charters:
“9.1The physical location of a place is part of its cultural significance. A building, work or other element of a place should remain in its historical location. Relocation is generally unacceptable unless this is the sole practical means of ensuring its survival.
9.2Some buildings, works or other elements of places were designed to be readily removable or already have a history of relocation. Provided such buildings, works or other elements do not have significant links with their present location, removal may be appropriate.
9.3If any building, work or other element is moved, it should be moved to an appropriate location and given an appropriate use. Such action should not be to the detriment of any place of cultural significance.” (Emphasis added).
In respect of the issues concerning setting and/or location of the house, I agree with the observation made by Mr Litster, senior counsel for the appellant, that at the heart of this proceeding is the acceptability or otherwise of the proposed moving of the house from its current situation to much closer to Bowen Terrace. Concepts of setting and location are of particular significance when dealing with criterion (e) of the relevant Statement of Significance (SOS) and, to a lesser but still important extent, the connection between the house and the previous Premier of Queensland E.G. Theodore.
I should also observe in this context that during the course of this proceeding, the appellant was at pains to describe the shifting of the house towards Bowen Terrace as a “re-siting” as opposed to a change of its “location.” The attempt to make this distinction fails in my view. What is proposed is clearly a relocation of the house. To attempt to classify it as a re-siting is a distinction without meaning.
In a general sense, the extent and effect of the move are identified in a number of documents, including the bundle of plans provided by the appellant.[54] Those plans also show the final form and location of the house and the proposed townhouses.[55]
[54]Exhibit 7 pp 2 and 3.
[55]Ibid pp 4, 5 and 6.
Somewhat ironically in the scheme of things, the appellant’s own plans refer to the subject house being “relocated” as opposed to being repositioned or re-sited.
The statements of significance
The statements of significance set out in the Heritage Criterion have been identified above. I propose to deal with each of those statements in turn. However, before I do, as unfortunate as it is, I consider it necessary to make some general observations about the performance of some of the expert witnesses in this proceeding. It is a fundamental obligation of an expert witness to assist the court. Rule 426 of the Uniform Civil Procedure Rules (UCPR) provides:
“426 Duty of expert
(1) A witness giving evidence in a proceeding as an expert has a duty to assist the court.
(2) The duty overrides any obligation the witness may have to any party to the proceeding or to any person who is liable for the expert’s fee or expenses.”
To ensure as far as practicable that expert witnesses remain not only true to their profession but capable of acting objectively and impartially as between the parties, is also provided for in the rules of this court that require expert witnesses to attend a joint meeting which is to take place in the absence of not only the parties retaining them, but also in the absence of any lawyers or other agents acting on behalf of the parties.[56] Indeed, under both the Planning and Environment Court Rules (PECR) and the UCPR, experts are required to, among other things, confirm in their reports that they understand that their duty to the court must be and has been complied with.[57]
[56]Planning and Environment Court Rules 2010 s 22 r 22.
[57]UCPR r 428; PECR r 27.
Unfortunately in this case, on more than one occasion, I had to remind no less than three witnesses that it was their duty to give evidence and not to become involved in or create argument and/or debate.[58] That was most unfortunate as this Court in particular, not only expects expert witnesses to behave in accordance with their duty, but relies on them doing so.
[58]E.g. T4-14 ll 33-38; T4-28 ll 42-46; T6-12 ll 32-44, also T5-12 ll 22-46 to T5-13 ll 1-27, involving Ms Brouwer. The other witness in this context was Dr Mackay, the wife of Dr Watson, the first co-respondent by election. Dr Mackay also attempted to speak to one of the expert witnesses about the case during his cross-examination. That witness, Mr Kennedy, rightly refused to have any discussion with Dr Mackay, see T10-2 ll 33-45 : T10-3 ll 1-5.
Returning then to the statements of significance: it is not in dispute that the subject house is an important place and ought be protected. The central and dominant issue boiled down to whether or not that required the house to remain in its present location or, in accordance with the appellant’s case, its cultural heritage values would be protected and, arguably enhanced, by it being moved to its proposed location. The following extracts from the Joint Expert Report of the four historians identifies what is at the heart of this proceeding. At para 3.3.6 of the JER,[59] in dealing with criterion (a), the three historians relied on by the respondent and two co-respondents by election reported:
“…388 Bowen Terrace is important in demonstrating the early-20th-century practice in Brisbane of setting substantial middle-class suburban homes within gardens designed for display, recreation and entertainment. Elements associated with this significance include the siting of the house well back from the street to create as much front garden space as possible and the decorative brick front boundary fence.” (Emphasis added).
[59]Exhibit 10, p 71.
The historian for the appellant, in dealing with the references to gardens being designed for display, recreation and entertainment etc. went on to say:[60]
“(They) are not aspects of historical importance or historical significance of the house and site. There is no evidence in the historical research carried out to support the claim that setting substantial middle-class suburban homes within gardens designed for display, recreation and entertainment was an established practice in Brisbane of this period. In any event even if this was an established practice, the current garden, plantings and species do not date from the early 20th century and are not elements of the historical significance of the house. The earliest photographs of the house show a wholly different garden design and presentation with small shrubs, grassed areas and open spaces…”
[60]At para 3.3.7.
During the evidence there was considerable discussion about whether at the time this house was designed and constructed Bowen Terrace, as described in criterion (a) was truly “one of Brisbane’s most prestigious residential addresses.” Whether or not the street was one of the “most” prestigious streets is largely irrelevant. There can be little doubt that the evidence establishes that, at least in the vicinity of this house, Bowen Terrace could fairly be described as a prestigious address notwithstanding the fact that a wide range of social classes lived within various parts of the street. That said, on the evidence before me I am sufficiently satisfied that there was not an established practice of setting substantial middle-class suburban homes well back from the street frontage, at least not in the New Farm area. Particularly not to the extent of the subject house which is some 24m back from the street. I am also satisfied that criterion (a) would not be offended by the proposed relocation of the house. That is, in its proposed location, it would remain a building which demonstrated the evolution and pattern of the city’s or local area’s history. In this regard I agree that the Statements of Significance (SOS) primarily focused on the physical characteristics of the house itself.
In respect of criterion (d), the historians relied on by the respondent and co-respondents by election reported:[61]
“…although 388 Bowen Terrace has sustained some changes over time, it remains a fine example of the high quality residential work of R.S Dods, which is characterised by a pervading sense of tradition, solidity, and an honest use of materials. A federation era house, designed in an Arts and Crafts idiom it is positioned carefully on the site, well back from the street, to provide privacy for the occupation and to create a sense of arrival for visitors to the place. It has deliberately oversized timber elements and openings; a dominant roof with chimneys, weatherboards… as is typical of Dods houses, the connection to the ground is carefully considered and a combination of strategies employed to achieve this integration, including careful positioning on the site to take account of the topography, as well as a heavy roof form and the enclosure of the sub-floor of the front elevation with horizontal weatherboard cladding to visually ground the house and hide the vertical stumps.” (Emphasis added).
[61]Ibid p 73 para 3.3.16.
Leaving aside the question of the siting of the house, which will be dealt with in detail below, I am satisfied that the relocation of the house would not frustrate criterion (b). That is, upon re-siting and renovation it would remain a good example of a fine timber federation-era residence. Again I agree with the submission made by Mr Litster that the focus here is on the physical characteristics of the house, and not the relationship between the house and its location within the site.
Turning to the two significant values identified in Criterion (h), the first is the association with E.G Theodore, the prominent State Premier and Federal Politician. The second is the association between Dods and Mr Trude, the first owner of the house. As a matter of historical convenience, it is better to deal with those associations in reverse order.
John Elworthy Trude was a successful businessman/merchant. More relevantly, he had both a business and personal relationship with Dods. As to the first, Dods designed an extension to one of Trude’s commercial premises. In the context of this case though, the more personal relationship involving the house is the most important. At the time, Dods lived quite nearby in Abbot Street New Farm. Trude and Dods played golf together, were members of the Brisbane Golf Club, Queensland Club and, quite likely, Dods attended Trude’s wedding and their children played together.[62] Construction of the house commenced in 1906 and it was owned by Trude for 11-12 years but occupied by him and his family for about 8 years.[63] During the cross-examination of Mr Marquis-Kyle, the architect relied on by Dr Watson, the following exchange took place:[64]
[62]See Dr Mackay at T4-19 ll 30-47 and Mr Marquis-Kyle at T8-37 ll 1-5.
[63]Exhibit 12, p 28 (as amended) and T-38 ll 1-27 of Dr Bennett.
[64]T8-36 ll 37-47; T8-37 ll 1-17.
“Q: There has to be a proximity of association by the architect. So, for example, it’s easy to make the determination if it’s the architect’s own home?
A: That’s – that’s often – often a powerful argument, yes.
…
Q: But in this case, there’s no specific association of this house with Dods other than his design of the house?
A:I think there are other connections that are important. The fact that the – the client, Trude, was a personal friend of Dods. They worked together on not just this project but on business premises for Trude.
Q:An extension yes?
A:This is not the case that you sometimes see where because the name of the architect is known then a claim is made there’s a special association with that – with that person. In this case the level of connection is higher than just knowing who designed the building and it’s about that connection between the people, that this wasn’t just a job that was run out of the office. This was actually a…
Q:How do you say this wasn’t a job that was run out of the office? What document leads you to that conclusion?
A:I don’t have the document that proves, but I know that Trude and Dods were golfing partners. They live nearby, just a few blocks away. They work together in business. It wasn’t just a commission to design the house. These were colleagues.
Q:But, Mr Marquis-Kyle, can I suggest to you that just simply isn’t the sort of special association that is contemplated by criterion (h). The sort of association has to do with the fact that his life and work is somehow inextricably bound up and associated with the place. All we have in terms of his life and work that is tangible here is the fact that he designed the house?
A:Yes. It – there are some other layers to it as well. That not only did Dods design this house, but it’s a rather rare example that demonstrates the nature of his work. That…
Q:But that’s a different criterion?
A:Yes. That’s the rarity criterion, but there’s a lot of overlap between these criteria. So it might come under historical importance. It might – and it partly comes under rarity. It comes under typically and, in this case, there’s association with a person of importance as well.
Q:Dods?
A:Dods.
Q:And the association with him is it’s one of his commissions. Yes?
A:Yes, a commission where his – his skill as an architect is clearly demonstrated, more clearly demonstrated than in many other places.”
That the relationship between Dods and Trude was a significant matter was also asserted by the three historians called on behalf of the respondent and co-respondents by election.
On balance, I am satisfied that while the personal relationship between these gentlemen was a relatively close one and a relevant consideration, it is by no means determinative. That is, in the scheme of things, it is materially less important than other matters, for example the dispute concerning the siting/setting of the house and the relationship between the house and Theodore. In this context it is also worthy of note that under criterion (h), while express reference is made to Theodore, no such reference is made to Trude. While the “Note” to the statement of significance contemplates further information being revealed upon further investigation the absence of any reference to Trude is, in my view, an indication of a less significant association.
It is also relevant in my view that the relocation of the house would not necessarily bring to an end that association. That is, even in its relocated position, it would remain a house originally designed by Dods for Trude. In this context, I agree with the observation made by Mr Marquis-Kyle and Mr Kennedy to the effect that notwithstanding the changes to the house identified by Mr McDonald, it could still be described as being “substantially intact.” With the exceptions of the downstairs laundry and library/study areas, Mr McDonald’s evidence was to a similar effect. In this context, Messrs Kennedy and Marquis-Kyle observed:[65]
“…only the Trude house/Fenton (despite some changes), Weemalla at Corinda and possibly the Stark House at Morningside, are believed to be substantially intact as to both the house and the site retaining the integrity of that relationship.”
[65]Exhibit 16, p 14, para (f).
In that context reference is made to the Historians’ JER at p 50. Significantly, Mr McDonald at no time asserted to the effect that the changes to the house rendered it unworthy of protection as an example of the work of Dods. Finally in respect of this issue, I consider it a relevant consideration that there is no probative evidence that Dods had any meaningful (if any) input into the design of the garden fronting Bowen Terrace, nor is there any evidence of any special relationship between Dods and Trude and the gardens. The relationship between Dods and Trude alone, would not warrant refusal of the proposed development. Also, for the reasons expressed, the relocation of the home would not necessarily result in the house no longer being a “fine example” of a Dods designed house for the purposes of SOS(h).
Of much more significance, in my view, is the association between the house and Theodore. Theodore, his wife and children tenanted the house from 1916 to 1918. Theodore purchased the house in 1918 and, despite periods of extended absences it was his principal place of residence through to about 1927. That is, he owned the house for about 15 years but occupied it for about 11 years.[66] Notwithstanding not living in the house, it was owned by Theodore until sold to the Steindls in 1933.[67] Gertrude Steindl (nee Brennan) occupied the house under the Theodore ownership from 1930 to 1933. Frank Tenison Brennan had “house sat” the house from 1924.[68]
[66]Exhibit 12, pp 28-29: T3-8 ll 30-45 to T3-9 ll 1-11 per Dr Bennett.
[67]Exhibit 12, pp 28-29: T3-8 ll 30-45 to T3-9 ll 1-11 per Dr Bennett.
[68]Exhibit 12 pp 28-29.
Theodore moved his family to the subject house from a quite modest dwelling located at Stanley Street, East Brisbane.[69] Of some interest is that when he moved he took the name of the house with him, “Alma-Den”. Alma-Den being the location of what was described as one of Theodore’s more significant “industrial victories.” In the context of the association between Theodore and the house, there are three important elements. The first being the upstairs living area. Second, the downstairs area. The third, the garden areas. As to the first of those matters, it is not in dispute that the proposal would have no material impact.
[69]See Exhibit 54.
As to the second, the evidence establishes that when Theodore moved into the house, he converted the south-eastern corner under the verandah into a library/study and quite possibly also a workshop-type area. The library area can be identified, at least externally, by reference to the photograph taken at or about 1934.[70] The construction of this library/study area required a material change to the understory as designed by Dods, including the introduction of windows, a doorway and other foreign material. More will be said about those physical changes below.
[70]Exhibit 18A and 18B.
During the course of the cross-examination of Mr Marquis-Kyle, the following exchange took place between myself and Mr Litster:[71]
“A: But if you find there’s a library and you find there’s remnants, there is still a question of whether it’s of such significance that it ought be protected.
Q:I agree. But I’m just trying to get an idea of what your client’s case is. Is your client’s case that there wasn’t – there’s no tangible (evidence) that such a library/study area existed or is it your clients case that such a study area might have existed but there’s absolutely nothing left?
A:It’s that.”
[71]T8-52 ll 1-7.
The library/study area was clearly a significant element of the house to Theodore. He spent much time there and was visited there by the then Archbishop Duhig, also a very prominent “Queenslander”. Indeed, at Theodore’s funeral, Archbishop Duhig said to the effect that there was no need for him to go beyond the library/study area because it was that room that best represented the man.
In Mr McDonald’s court report, he notes that while there is no dispute “in relation to Fenton’s upstairs fabric”[72] there was a considerable amount of dispute concerning what existed and/or exists underneath the house in the library/study/laundry areas. Mr McDonald’s court report contains a number of photographs and assertions, relevantly:[73]
[72]Exhibit 17 p 24.
[73]Ibid pp 32-34.
“Windows and doors: the doors and windows incorporated into the downstairs external walls are second-hand material of unknown origin and are generally not consistent with any known pattern of early or original downstairs fenestration…
There is ample physical evidence to clearly demonstrate that the windows and doors in the downstairs external walls are of modern construction using second-hand doors and window sashes in modern pine frames. The source of the second-hand door and window material is unknown and their application to this element is of little or no cultural significance.
Internal walls: the internal downstairs walls to the existing storeroom and workshop are a combination of modern materials and construction (to the storeroom) and reused second-hand materials (to the workshop). One of the workshop internal walls is claimed by Mr Kennedy and Mr Marquis-Kyle to be an intact part of Theodore’s library (heritage JER 22.3.1(d))…
There is ample physical evidence to clearly demonstrate that the internal walls are of modern construction using second-hand material. The source of the existing workshop material is unknown and its application to this area is of little or no cultural significance.”
The reference to the JER by Mr McDonald is to the opinion expressed by Mr Kennedy and Mr Marquis-Kyle in the JER, where they stated:[74]
“In the southeast corner of the underneath of the house there is a small room which Mr Kennedy and Mr Marquis-Kyle consider is highly likely to be the location of Theodore’s study/library spoken of by Archbishop Duhig and described by Theodore’s daughter Myra as being an enclosed corner of the front part of the underneath of the house. The casement windows obvious in the photo on page 30 of the historian’s JER are no longer there, and the front and side walls of the underneath of the house have been re-sheeted externally with new weatherboards. However, the northern T&G internal wall including the entry door to the room is intact. The fabric in this wall is slightly different to the fabric in the main house indicating that it was constructed at a different time. It is consistent with fabric readily available when Theodore occupied the house.”
[74]Exhibit 15, p 10.
As I have already stated, it is not in dispute that Theodore had constructed a library/study area in the south-eastern corner of the house, including the introduction of a door to the side and windows at the front. The dispute was largely about whether there are any tangible remnants of those areas left.
During the course of his evidence, Mr Marquis-Kyle tendered a number of photographs which he said might be indicative of walls or panelling associated with the library/study areas.[75] Those photographs are similar to a number of the photographs contained in Mr McDonald’s court report.[76] However, when asked just how probative this evidence was, Mr Marquis-Kyle made a number of candid and appropriate concessions. During the course of his cross-examination the following exchange took place between him and myself:[77]
[75]Exhibit 57.
[76]Exhibit 17, pp 32-34.
[77]T8-17 ll 27-47 to T8-18 ll 1-10.
“Q: Would it be fair to say in respect of the library/workshop/ study area that the evidence would suggest that Theodore did have such facilities under the house?
A: Yes.
Q: But insofar as the physical evidence that remains, there is a significant question mark over whether or not they were part of that series of, be it the study, the library or whatever?
A:Yes.
Q:And to establish whether they are – would require, I think to use your words, some significant further investigation?
A:Yes.
Q:Or at least further investigation?
A:Yes. That’s – that’s – that’s true. I – I – I put it slightly differently, but there’s the potential to reveal much more information than we have in front of us at the moment. I think we’re at the point where we’ve got a pretty good indication, on the face of it, that this was the location. I think that the photograph that shows the exterior with the casement windows… and Myra’s testimony that’s – that’s – that’s very strong, very clear and reliable.
Q:And I don’t know whether that part is necessarily in dispute. What I was saying was, would it be a fair summary of your evidence to say that you’re sufficiently satisfied that there was a library/study/workshop type area – areas in that corner of the building – house where the windows are?
A:Yes.
Q:But whether or not any of these internal structures were a physical part of any of those spaces is not certain and would require further investigation to establish whether or not they were physically part of those spaces?
A:Yes. That’s a – that’s a fair summary your Honour – your Honour. And – and I’d say that – that there’s no certainty that you’d get a definite answer if you did do more – more work. It would be fascinating and interesting and may not give you the definite answer. It’s like archaeology.”
On balance, I consider that, while the evidence establishes that there were almost certainly library/study areas and other areas with a strong association with Theodore, there is no tangible evidence that any internal remnants of those areas exist today. Indeed, according to Mr Marquis-Kyle, even further detailed study might still fail to establish that any such remnants existed.
In the historians’ JER doctors Bennett and McKay and Ms Hill stated:[78]
“…The development as proposed fails to recognise the significance of a garden setting, the compositional balance of the house (roof, main level and subfloor), and the significance of surviving elements related to earlier occupants, especially E. G. Theodore such as remnants of his subfloor study/library and workshop/hobby space” (emphasis added).
[78]Exhibit 10 p 85, para 4.15.2.
There is of course the persuasive evidence about the existence of such spaces, particularly the library/study and workshop areas, but, apart from the windows and doorway there is no persuasive evidence of any remnant of those areas still being in existence. In my view, there was no factual basis for this assertion on the part of those historians. Mr Richards adopted an approach similar to that adopted by Mr Maquis-Kyle. Mr Richards recorded:[79]
“…Further research into the physical evidence of the house should be carried out to determine whether any surviving fabric be relocated that demonstrates the use of the house by E. G. Theodore, particularly his library. Any surviving evidence of Theodore’s occupation of the house should be conserved as part of proposed development if possible, or at least recorded.”
[79]Ibid, para 4.15.3.
In respect of the issue of there being any remnant of the library and/or study and/or workshop areas, I much prefer the evidence of Mr Marquis-Kyle and Mr Richards. Finally in this context, it is of some significance that the window and doorway, while being physical elements of those areas, were not part of the original Dods design.
If the proposal, including the intention to build in under the house, had the potential to destroy any remnant of the Theodore library/study areas, tension with this aspect of criterion (h) would clearly arise. But it does not. The repositioning of the house would not of itself offend this aspect of criterion (h). To perhaps put it another way, leaving aside for the moment the issue concerning the siting of the house and its associated gardens, the repositioning of the house would not materially affect this association between it and Theodore. Finally on this topic, the proposed renovation of the house would see the removal of the casement windows at the front south-eastern corner of the house. That is of no consequence as they were not part of the Dods design. Originally, that area would have presented to Bowen Terrace as a solid weatherboarded face.
Turning then to the last of the three elements referred to above, it is unnecessary to dwell on the area between the house and Oxley Lane. With the sale of part of the original site to facilitate the construction of the house on lot 404, together with the introduction of a large swimming pool and landscaped area, the backyard bears no resemblance to that described by Myra Rowbotham.
Turning to the space between the house and Bowen Terrace, it also has to be acknowledged that the sale of the eastern part of the land (now lot 404) has of itself materially altered the side and front yard as described by Myra. Also, as has already been discussed, the garden as it now presents is materially different from that which existed during the Theodore years. The historical evidence establishes that Theodore was himself a keen gardener. He also clearly considered his personal gardener to be particularly skilful, as he went with Theodore when he moved to Sydney. That said, at its highest, it could only be stated with any degree of confidence that there might be a few trees/plants that still exist from the Trude and/or Theodore periods.[80]
[80]Refer to Exhibit 41 and cross-examination of Mr King.
That there are very few plants that can be traced back to the Theodore era is not the end of the matter. The historical evidence established sufficiently clearly that the garden was a place of particular interest for Theodore and his family. The subdivision of lot 404 of course materially reduced the garden area however, what remains, at least insofar as area or space is concerned, is much more representative of the type of garden Myra Rowbotham spoke of than what would be the situation in the event that the proposal went ahead. One example of this is that if the family portrait shown in the historians’ JER[81] was taken in the proposed situation, Theodore, his wife and four children would be sitting on the footpath, if not Bowen Terrace. Another is that the front garden space was probably the siting of social and philanthropic events.[82]
[81]Exhibit 10 at p 26.
[82]Ibid p 35, para 2.4.7.2.
For the reasons given I consider that the proposal conflicts with criterion (h) insofar as the association with Theodore is concerned but, only to the extent of the impact on the setback and garden setting. The location and setting of the house are discussed in more detail when dealing with criterion (e).
Turning then to criterion (e), for the reasons given, while not a garden per se that can be associated with Dods or, to any meaningful extent, with Theodore, what exists now could plainly be described as being “an attractive garden setting”. Also, while the dominant roof form and restrained timber detailing could be retained in the event that the proposal went ahead, the evidence establishes that the “aesthetic significance” of the place would be materially affected. The significance and relevance of that has to be assessed against the planning documents.
With a 6m setback, the ending of the front steps would only be some 2m from the boundary line. Of more significance though, would be the overall physical prominence of the house. As the images in Exhibit 9 make clear, the visual impact the house would have on any passer-by on Bowen Terrace would be much starker in the after situation.
In the JER of the visual amenity witnesses, when dealing with the Low-Medium Density Residential Zone Code (LMRC) of the planning scheme, Mr Marquis-Kyle and Mr King expressed the opinion that:[83]
“…The proposal is not of a height, bulk, scale and form which is tailored to its specific location or the characteristics of the site and adjoining dwelling because:
(a) the proposed relocation of the house would adversely affect the visual relationships of the house to the streets and to its surrounds as designed by the architect R. S. Dods.
(b) the proposed relocation of a house would adversely affect the streetscape of Bowen Terrace which currently has the benefit of Fenton’s large front garden…”
[83]Exhibit 14, p 10, para 23.2.
In his court report, Mr McDonald, the expert relied on by the appellant concerning visual amenity and heritage architecture, under the headings “Repositioning Fenton” and “Visual Impact on Bowen Terrace” reported:[84]
“The visual outcome of repositioning Fenton further forward on its existing site will be to bring Fenton into more prominent exposure in the Bowen Terrace streetscape. Opposite to being an adverse visual impact on the character of Bowen Terrace, this repositioning will retrieve Fenton’s early (and now lost) visual prominence in a way that will allow Fenton to, again contribute positively to both the general Bowen Terrace streetscape and to the other existing buildings expressing traditional building character in Bowen Terrace.
Based on the analysis above, and for the reasons previously set out in the joint report…it is concluded that, when repositioned, Fenton will contribute positively to a scale and character of Bowen Terrace and that the proposal will have no adverse visual impact on the character of Bowen Terrace.”
[84]Exhibit 15, p 6.
While the relevant provisions of the planning scheme will be dealt with below, many aspects of what Mr McDonald reports are correct. The proposed development will bring the house further forward, making it more prominent in the streetscape. And, repositioned, the house might potentially make a positive contribution to the scale and character of Bowen Terrace and, in a strictly town planning sense, have no adverse visual impacts on the character of that street. Those matters however are not really to the point; they fail to have sufficient regard to the aesthetic significance of the house in its location. As to the reference to “retrieving Fenton’s early (and now lost) visual prominence” I was left uncertain about what Mr McDonald meant. As has already been discussed, the house would probably have been more prominent from at or about the late 1920s through to when Mr Kucelli purchased the property. However, also for the reasons stated, it is more likely than not that the house was more secluded by virtue of a more extensive garden during the Trude and Theodore periods.
The evidence makes it sufficiently clear that the siting of the house in its present location was no accident. That is, it is much more likely that its positioning was the result of a deliberate decision made by Dods for a number of reasons. The location of the house takes advantage of topography and, as a consequence, would have taken advantage of breezes and views. In addition, it is more likely than not that its location was designed to provide a more attractive and somewhat more dramatic entry from the street to the front steps. Having regard to the type of development that has occurred around the subject site, while the advantages associated with breezes and views might have been materially eroded, the “presence” of the house within the existing site and streetscape largely remains. The fact that other competent architects might have or probably would have placed the house at or about the same location is not to the point. On this issue I prefer and accept the evidence of Mr Marquis-Kyle, that had Dods intended the house to be materially closer to the street, he probably would have produced a different design.[85]
[85]Exhibit 19; T8-36 ll 18-24, T8-39 ll 18-33.
I also prefer and accept the evidence of Mr Marquis-Kyle to the effect that, in the current situation one looks through the garden to a “flattering view of the house,” whereas in the after situation the house would provide a different viewing experience. Instead of looking through the garden to the house at a distance from Bowen Terrace, in the after situation one would get an entirely different impression.[86]
[86]T7-55, ll 15-23; see also ll 38-47, T7-56 ll 1-3, T7-58 ll 1-10.
It is important to bear in mind that criterion (e), when speaking of the aesthetic significance of the house, also refers to the “dominant roof form and restrained timber detailing…” During cross-examination of Mr Marquis-Kyle the following exchange took place:[87]
[87]T8-25, ll 9-15 and T39-46.
“Q: …the house even if it’s moved forward, will still have an overall appearance of solidity and substance. It’s the nature of the structure isn’t it?
A: It– it would look clear moved– moved forward and painted as proposed in the– in the– in the renderings. It doesn’t have the appearance of solidity and substance it had in the original form setback from the street and painted in the typical Dods colour scheme of deep red oxide weatherboards with lighter coloured trim.
…
Q: The roofs– or the roof will still be large and dominant?
A:Less dominant from a close view if it’s moved closer to the street but as it is now, from both sides of Bowen Terrace you see the house close to straight on like an elevation whereas when it’s moved forward you see it from the same side of the street as the house, you look up– you see less of the roof…so it’s– it’s a distorted view that you get with the house moved forward.”
In this context, the following exchange also took place between Mr Job and Mr Kennedy, the heritage architect relied on by the respondent:[88]
[88]T9-79 ll 26-44.
“Q: We see in the second sentence of that paragraph Mr McDonald’s opinion that the proposed repositioning will not materially alter the building’s height, proportions, orientation, architectural significance or the historical association with Theodore or Dods; do you agree?
A: No, I think it – I think it will materially affect them all actually. I know building height was discussed this morning, but the building height looks very different on the street than what it does set back as – as do the proportions. The orientation, if you want to include the topography. If you wanted to call the orientation the setting, for example, it’s very different. The architectural significance to me is reduced by putting it in the street and making it the same as all 35 the other houses in the street, which I think was one of the benefits that Mr McDonald advocated in his JER. The historical association with Edward Theodore, I think, Dr Mackay pointed out in a sort of – she doubted if Theodore would have bought the house if it had have been in the street where – where it’s proposed to be put, because it afforded no privacy. So that association is certainly diminished, and 40 we all know that Dods – well, some of us know that Dods put these houses on sites in a particular way to take advantage of those things I mentioned before, and that association is reduced.”
As was the case with Mr Marquis-Kyle, Mr Kennedy was not shaken in cross-examination.[89] On this aspect of the case I prefer their evidence to that of Mr McDonald. That is, the relocation of the house would, to a material extent, destroy its current and important relationship and symmetry with the street.
[89]E.g. T10-62 ll 36-47 : T10-63 ll 1-27.
While the colour scheme may be able to be addressed with relative ease, the other structural aspects spoken about by Mr Marquis-Kyle cannot. Mr King, also called to give evidence concerning visual amenity, spoke about how the house might have presented to Bowen Terrace during different periods but, more significantly in this context, like Mr Marquis-Kyle, considered that the aesthetic significance of the house includes that it presents as “a house within a garden” and that aspect would be materially altered if the proposal went ahead.[90] The evidence of Mr Marquis-Kyle concerning the importance of the siting of the house was particularly persuasive.[91]
[90]T7-34, ll 23-44.
[91]See also at T8-36 ll 17-24; T8-39 ll 26-40; T8-40 ll 26-46.
Lest there be any doubt about it, the conclusions I have reached are that while the existing garden is clearly not of the type that existed when the house was designed by Dods and occupied by Trude and later Theodore, nonetheless the siting of the house well back from the street, and within a garden setting, is an integral part of its ‘aesthetic significance’. Or, to perhaps put it more accurately, the garden ‘setting’ is an important aspect of the cultural significance of this place.
On balance, insofar as criterion (e) is concerned, the conclusion I have reached is that the proposed development would have a significant adverse impact on the aesthetic significance of the house.
The planning scheme
While nearly every expert witness called in this proceeding referenced each of the criteria contained in the Statement of Significance against the relevant provisions of the planning scheme, I consider it necessary to only consider that document further insofar as it might impact on criterion (e) and, in the more limited sense, (h).
Pursuant to s 80 of the SPA, a planning scheme is a statutory instrument under the Statutory Instruments Act 1992. Accordingly, the construction of planning documents must begin with a consideration of the text used and the application of the ordinary principles of statutory interpretation. As was observed by Muir JA in Meridien AB Pty Ltd v Jackson,[92] the starting point for those principles may be extracted from the judgment of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory):[93]
“This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (Citations omitted)
[92][2013] QCA 121.
[93](2009) 239 CLR 27 at [47].
However, as has been repeatedly recognised, planning schemes need to be read as a whole and as intending to achieve a balance between often conflicting desirable outcomes.[94] Also, when dealing with planning schemes that include phases such as “maintain and preserve” it must be read broadly and in a sensible way. In Lockyer Valley Regional Council v Westlink Pty Ltd,[95] the Court of Appeal relevantly said:
“…phrases such as ‘maintain and preserve’ and ‘preserve and enhance’ must be read in context and bearing in mind that when any development occurs some amenity impairment will generally result…planning schemes should be construed broadly, rather than pedantically or narrowly, and with a sensible, practical approach…” (citations omitted)
[94]E.g. Newing v Silcock [2010] QPELR 692 at [62]-[63]; Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 83 at [56]; see also Savage v Cairns Regional Council [2016] 214 LGERA 192.
[95](2011) 185 LGERA 63.
Turning then to the alleged conflicts with the planning scheme, s 3.2.1 of the strategic intent of the strategic framework relevantly provides:[96]
“The unique traditional building character of Brisbane continues to be recognised and many older suburbs contain intact character housing. Newer development in proximity to character housing has been delivered in a manner which respects this character. The contribution of natural heritage…has continued to be recognised and protected across the city.”
[96]Exhibit 5, p 37.
In my opinion, the only relevant grounds for refusal in this context are those concerned with the re-siting of the house. Those grounds state:[97]
“The proposal to relocate the heritage house to the front of the site and constructing a three-storey multiple dwelling containing three units to the rear of the heritage place would severely interfere with the established relationship of the heritage property and its frontage, street edge and defined spacious approach to the house. As such, the setting of the heritage place would be negatively affected and its character significantly diminished.
It is considered that the amount, layout, scale and design of the development does not appropriately respect the character of the heritage place, as it would have significant detrimental impacts on the heritage place and its setting, and will lead to material damage to its cultural heritage significance, which is contrary to the strategic intent of the strategic framework for design, character and heritage.”
[97]Exhibit 4, p 14.
As has already been identified, most of the significant physical attributes of the house would be retained and, indeed, likely improved and enhanced. Further, having regard to what has occurred in the backyard (the introduction of the pool, pool house and landscaping etc.) and, more significantly, the extent of multi-unit development in the area, I do not consider that the introduction of the three town houses fronting Oxley Road introduces any material conflict. However, for the reasons already given the re-siting of the house would adversely impact on the symmetry between the house, the garden setting and, as a consequence, Bowen Terrace.
The next point identified by the respondent and co-respondents by election is the alleged conflict with Specific Outcome (SO) 19 of that part of the scheme dealing with “Heritage, character and cultural values”. SO19 provides:[98]
“Brisbane’s important buildings and places that are important to the city’s history are protected.”
[98]Ibid, p 50.
Land use strategies, L19.2 and L19.3 clearly recognise that development may take place within or adjacent to heritage places, but in circumstances where the proposed use or uses “retain the significance of the place” and/or “protects the cultural heritage significance of the place…”. While I am satisfied that all other aspects of the proposal would sufficiently satisfy the land use strategies envisaged, the re-siting of the house does not support the retention of the significance of the place nor its cultural heritage.
The next alleged conflict is that concerned with Overall Outcomes (OO) 5(a), 5(b) and 5(h) of the Low-Medium Density Residential Zone. OO5 relevantly provides:[99]
[99]Ibid, p 112.
“(a) development for a residential building is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site…
(b) development provides for a building to have a building height and bulk that responds to:
(i) the nature of adjoining dwellings
(ii) site characteristics, including the shape, frontage, size, orientation, slope, and nature of adjoining dwellings…
(h) development responds to land constraints, mitigates any adverse impacts on environmental values and addresses other specific characteristics, as identified by overlays affecting the site or in codes applicable to the development.”
In respect of these outcomes, the ground for refusal stated:[100]
“The proposed development would unacceptably impact on the setting of the heritage place and significantly diminish its heritage values. It is considered that the proposed development is not of a height, bulk, scale and form that are tailored to the characteristics of the heritage place…”
[100]Exhibit 4, p 15.
The evidence concerning the proposed development satisfies me that there is no material conflict with OO5(a) and/or (b). Insofar as 5(h) is concerned, the conflict is limited to issues arising out of the Heritage Overlay Code. The extent of relevance of those Codes is addressed below.
The next alleged conflict is with PO1 and PO4 of the New Farm and Teneriffe Hill neighbourhood plan. They relevantly provide:[101]
[101]Exhibit 5, pp 125, 126 and 127.
“PO1 Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape in built form character and is:
(a) consistent with the anticipated density and assumed infrastructure demand;
(b) aligned with community expectations about the number of storeys to be built;
(c) proportionate to and commensurate with the utility of the site area and frontage width;
(d) designed to avoid a significant and undue adverse amenity impact to a joining development;
(e) sited to enable existing and future buildings to be well-separated from each other and avoid affecting the potential development of an adjoining site.”
And:
“PO4 Development ensures that building size and bulk is compatible with the existing detached housing and the scale and character of the street.”
The relevant ground for refusal states:[102]
“The proposed development includes a three-storey and 11.3m high multiple dwelling to be sited fronting Oxley Lane, which has unacceptable impacts on the single-storey heritage place and surrounding residential properties. It is considered that the proposed multiple dwelling will create undue adverse amenity impacts on surrounding properties and is not in keeping with the scale and character of development in the street…”
[102]Exhibit 4, p 16.
In my view, this ground is somewhat disingenuous. For a start, the subject land is in an area littered with multi-level residential units.[103] Second, the surrounding properties facing Oxley Lane that could be adversely impacted amenity wise, include to the immediate south a vacant area of land and to the north and east, a number of post-1946 multiple dwellings.[104] In respect of Bowen Terrace, to the immediate south is a somewhat unusual pre-1947 dwelling and to the south of that, a telephone exchange and to the north and east, a number of post-1946 multiple dwellings. Further, this objection was materially at odds with the concession made by Mr Job referred to above which was to the effect that if I was ultimately satisfied that the relocation of the house ought be approved then the respondent did not contend that there was anything standing in the way of the approval of the units themselves subject to conditions.[105]
[103]See for example, Mr McDonald’s court report, Exhibit 15 at pp 10-26.
[104]Exhibit 15, p 21.
[105]See above at para 21.
In my view, there is no conflict with PO1 or PO4 of the New Farm and Teneriffe Hill neighbourhood plan.
The next level of alleged conflict involves a number of performance outcomes under the Multiple Dwelling Code (MDC), namely: PO1, PO5, PO6, PO9, PO11 and PO33.[106] PO1 relevantly states that:
“Development has a site area and frontage width that is sufficient to:
(a) accommodate the scale and form of multiple dwelling buildings considering site features such as heritage or character buildings and slope…”
[106]Exhibit 5, pp 150, 153, 155, 156 and 173.
The grounds for refusal state:[107]
“It is considered that the multiple dwelling is inappropriately located on the heritage place site.
The current layout of the proposed development necessitates the relocation of the heritage place closer to Bowen Terrace frontage of the site, which is considered to be to the detriment of its setting. The proposed three-storey multiple dwelling would dominate the heritage place and appear out of context with the architectural style of the heritage place.
It is considered that the site area is insufficient to accommodate the proposed scale and form of multiple dwelling without significant detrimental impacts on the heritage place and its setting…”
[107]Exhibit 4, p 16.
In the event that the subject house were moved forward to its proposed setback, I do not consider that the proposed town houses would, with appropriate landscaping in place, “dominate the heritage place and appear out of context with the architectural style of the heritage place”. In this context it is again relevant that this section of Bowen Terrace is already littered with a number of multi-unit developments. In this context I agree with the evidence of Mr McDonald, namely that the overall “characterisation of Bowen Terrace is one of modern multiple dwellings”.[108]
[108]T6-104, L 30.
One of those multiple dwelling blocks is situated immediately to the north of the subject land and, it could reasonably be expected that the vacant part of lot 404 fronting Oxley Terrace would be developed in the foreseeable future. The nature of any likely development on that land was a matter that Mr Marquis-Kyle had “thought” about and, according to him, what would be likely to occur on that rear section of lot 404 would be something similar to what is being proposed. That is, town houses or some other form of multi-unit dwelling. Given the location and designation of the land, that is a realistic prospect.
In respect of PO1, the assertion that the site area is insufficient to accommodate the proposed townhouses is only accurate in the context of it involving moving the house forward to the proposed setback. If this were not a culturally significant building it seems highly unlikely that a proposal of this type would be opposed by the respondent.
PO5 and PO6 of the MDC relevantly provide:[109]
[109]Exhibit 5, p 153.
“Development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to:
(a) existing buildings that are to be retained;
…
(c) existing and proposed building heights in the local area and street;
…”
And:
“Development has a building height that is consistent with the streetscape local context and intent for the area having regard to:
…(c) providing appropriate separation and a sensitive transition between houses and higher scale building forms;
…”
The grounds of refusal in this context provided:[110]
“The development exceeds the maximum building height for the site under the neighbourhood plan and does not provide adequate height transition from the adjacent detached property at 404 Bowen Terrace.
It is considered that the proposed development does not provide sufficient separation distance and would be inconsistent with the streetscape in the local context…”
[110]Exhibit 4, p 17.
There is nothing in these objections. That is obviously so, having regard not only to existing development along Bowen Terrace and Oxley Lane in the proximity of the subject property but also by reference to what is likely to occur on the rear of lot 404. When these considerations are taken into account, one can readily understand the concession made by Mr Job referred to above.
PO33 is concerned with car parking areas, vehicle site access and inconsequential adverse impacts on the streetscape character and interface. There is nothing in the respondent’s objection under PO33 essentially for the same reasons addressed in dealing with PO5 and PO6 of the MDC.
It follows that I do not consider that the proposal is in conflict with the Low-Medium Density Residential Zone, the New Farm and Teneriffe Hill neighbourhood plan, nor the Multiple Dwelling Code.
The final level of controversy is that associated with the Heritage Overlay Code (HOC) and, in particular PO1, PO2, PO3 and PO4. The particulars of those POs have been set out above, under the heading “The Burra Charter”.
Concerning PO1, the ground for refusal provides:[111]
“It is considered that the amount, layout, scale and design of the development is inappropriate as it would have significant detrimental impact on the heritage place leading to material damage to its cultural heritage significance…”
[111]Exhibit 4, p 18.
Following that statement a number of particulars are provided, each of which largely centres around the intended relocation of the house. To the same effect are the reasons for refusal concerning PO2 and PO3. They respectively state:[112]
“The development impacts on the setting of the heritage place currently defined by the location of the house on a relatively spacious lot with substantial front gardens and its resulting relationship with Bowen Terrace. The project as proposed does not sufficiently protect garden setting and overall status to the house as a fine example of a resident’s design by R S Dods…
It is considered that the development does not adequately retain the original setting and relationship of the house with the front gardens and the street frontage. The proposal would lead to a loss of the cultural heritage significance of the heritage place where historic interpretation of the site and its importance as a fine residential property would not be protected.”
[112]Ibid, p 18-19.
In respect of PO4, the grounds for refusal are:[113]
“It is considered that it has not been demonstrated that the relocation is required to protect and ensure long-term future use of the house, or that it is ‘the sole practical means of ensuring its survival’.
It is considered that the proposal does not meet provisions of Article 9 of the Burra Charter and in consequence performance outcome PO4 of the Code.”
[113]Ibid, p 19.
Having regard to the discussion that has already occurred concerning the siting of the house and the impact of relocation, it is not necessary to discuss these reasons for refusal further. For the reasons given the conclusion that I have reached is that the proposal, by virtue of it necessitating the relocation of the house to a 6m setback, is in conflict to the extent identified herein with criteria (e) and (h) of the Statement of Significance, section 3.2.1 of the strategic intent of the strategic framework and the Heritage Overlay Code.
With respect, I consider the approach taken by the appellant to SOS(h) regarding Theodore and, more importantly to SOS(e)[114], to be overly technical and fail to adequately address the true objects of the planning scheme insofar as it is concerned with the cultural heritage of this place.
[114]E.g. The appellant’s written submissions at pp 42-57.
In this context I do not consider it necessary to dwell any further on the historical and architectural evidence relied on by the respondent. However, it is of some significance that Mr Richards accepted that the “setting” of the house would not be “protected wholly”[115] and it would only be “protected in part”[116].
[115]T2-72 ll 1-16.
[116]T2-73 ll 24-37.
During the course of the cross examination of Mr McDonald, the following exchange took place:[117]
[117]T9-47 ll 34-42; see also T9-44 – T9-46 ll 1-32.
“Q: Any proposal that adversely affects something which contributes to cultural heritage significance would not be based on or take account of all aspects of the cultural significance of the place?
A: That’s not necessarily true. It’s not as rigid as that, Mr Job. There are very few development proposals for a heritage place that have no impact on a place, and when I see no impact, I mean one whatsoever. There are usually impacts of some degree. The very nature of contemplating some work on a place so very often involves some impact. That might be a very minor impact all the way up to a major impact, and it’s the role of the assessment to try to quantify what the nature and extent of that impact is. And it’s whether that impact is at an acceptable or an unacceptable level.
Q: If the attractive garden setting is determined in fact to be part of the cultural heritage significance – I say in fact because I know what your position is about it – you would not contend that the development protects the setting of the heritage place, would you? You couldn’t?
A: No, no, it wouldn’t protect the existing setting, and that would involve impacts of a greater magnitude which may or may not reach the level of refusal that would need to be considered in that context.
Q: And it’s the case, isn’t it, that this development does not protect the setting of the heritage place?
A: Yes.”
For the reasons set out above, the proposed re-siting of the house creates real and significant conflict with the relevant provisions of the planning scheme introduced to protect, as far as is practicable in the circumstances of each particular case, cultural heritage values.
Sufficient grounds
Having established that there is significant conflict with relevant provisions of the planning scheme, it would then usually be necessary to go on and consider whether there are sufficient grounds to justify approval notwithstanding that conflict. In proceedings such as this, for the purposes of s 326 of the SPA this court stands in the position of the “assessment manager” and, sufficient grounds means matters of public interest and does not include the personal circumstances of an applicant, owner or interested party.[118]
[118]SPA, Sch 3.
The sufficient grounds relied on by the appellant in the event of conflict are:[119]
[119]Exhibit 4A.
a) the proposed development provides appropriate protection of “Fenton”, as a local heritage place and facilitates its ongoing maintenance and use;
b) the proposed development will facilitate and promote public awareness and appreciation of “Fenton”;
c) the proposed development represents orderly development, consistent with the evolution and pattern of development for New Farm contemplated by City Plan 2014;
d) there is no unacceptable impact on amenity, character and streetscape;
e) the proposed development will meet a planning need for infill development recognised by the planning designation applied to the land in City Plan 2014;
f) to the extent that aspects of significance identified in the heritage citation for “Fenton” are not sustainable on the evidence, conflict with provisions of City Plan 2014 that rely on those aspects are founded on error;
g) such further or other grounds arising on the evidence, to be notified at a later time.
While the court stands in the place of the “assessment manager” for the purpose of s326, it is well recognised that it is not the planning authority.
In Weightman v Gold Coast City Council[120] Atkinson J (with the other members of the court agreeing) said:
[120][2003] 2 Qd R 441 at [36]; affirmed in Lockyer Valley Regional Council (2012) QCA 370 at [21].
“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P & E Act, the decision maker should:
1. Examine the nature and extent of the conflict;
2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
For the reasons discussed above under the heading “The Town Planning Evidence”, it is unnecessary to dwell any further on the “sufficient grounds” issue. As both town planners recognised, in the event that the proposal was found to be in significant conflict with the planning scheme, the asserted grounds would not be sufficient to warrant approval. That is the unfortunate situation the appellant finds itself in.
For the reasons given, the orders of the court are:
1. The appeal is dismissed;
2. I will hear from the parties if necessary as to any consequential orders.
0
4
3