LitBit Pty Ltd v. Brisbane City Council

[2008] QPEC 74

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

LitBit Pty Ltd v Brisbane City Council [2008] QPEC 74

PARTIES:

LITBIT PTY LTD (ACN 010 273 695)

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

3585 of 2007

DIVISION:

Appellate

PROCEEDING:

Applicant’s Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 October 2008

DELIVERED AT:

Brisbane

HEARING DATES:

22, 23 September 2008

JUDGE:

Robin QC

ORDER:

Appeal allowed

CATCHWORDS:

Integrated Planning Act 1997 s 4.1.27(1)(e)– Brisbane City Plan 2000, Demolition code –
Developer appeal against deemed refusal of permit for demolition or removal of a pre-1946 character house – house already partly demolished, relocated on site pursuant to earlier approval obtained by a prior owner, raised and altered but left unfinished – held that demolition of the building will not result in the loss of traditional building character within the street in the relevant section of it.

COUNSEL:

S Fynes-Clinton for the appellant

T Trotter for the respondent

SOLICITORS:

Robert Milne Legal for the appellant

Brisbane City Legal Practice for the respondent

1. This is an appeal against the Council’s deemed refusal of a development application (superseded planning scheme) which the appellant lodged on 29 June 2007.  The appellant sought a development permit for the carrying out of building work and operational work in the demolition or removal of a house on land at 97 Linton Street, Kangaroo Point located in the Demolition Control Precinct.

1. Linton Street runs between Main Street and Wellington Road one block north of Vulture Street.  Looking to the south, construction on the Brisbane Cricket Ground (office tower, stadium and lighting towers) looms large in the outlook; looking west so does the Telstra building at the southern corner of Main Street and Linton Street.  The latter, like parallel streets to the north (Princess Street and Toohey Street), is bisected by Duke Street, running north-south.  The Demolition Control Precinct does not incorporate any properties with a frontage to Vulture Street or Wellington Road (even such properties designated low-medium density residential in what is otherwise a sea of Medium Density Residential).  The Demolition Control Precinct comprises a solid swathe from the southern side of Linton Street extending north for a number of blocks.  On the western side of Duke Street, south of Linton Street, five parcels are in the precinct, the corner one and two each adjoining in Linton Street and Duke Street.  If Figure 1 in Mr O’Brien’s report is right, although the western block north of Toohey Street is in the Demolition Control Precinct, the two blocks to the south are not, although the more southerly one (with the exception of “light industry” on Main Street) is all Character Residential (like all of the locality away from the main roads) and has no less than nine properties designated HC as an indication of special recognition.  That designation is replicated on some sites north of Toohey Street which are in the Demolition Control Precinct.

1. The Demolition Code in Brisbane’s City Plan 2000 by its terms applies in assessing building work for the demolition, partial demolition, removal or repositioning of a building where (relevantly) “on a site in the Demolition Control Precinct where any part of the residential building was constructed in or prior to 1946”.  The code in section 5 contains in columns performance criteria and acceptable solutions:

Performance Criteria

Acceptable Solutions

Where a residential building:
P1       The building:

·     Must not represent ‘traditional building character’, or

·     Must not be capable of structural repair; or

·     Must not contribute positively to the visual character of the street.

Note:
‘Traditional Building Character’ is described in Section 4 of this Code

Where a residential building:

A1.1    The building has been            substantially altered and/or            does not have the appearance            of being constructed in or            prior to 1946

           OR

A1.2    An engineering report must            be submitted demonstrating            that the building is            structurally unsound and not            reasonably capable of being            made structurally sound

           OR

A1.3    Demolition of the building            will not result in the loss of            traditional building character            within the street

           OR

A1.4    The street has no traditional            building character

1. The introduction to Chapter 5 of City Plan indicates that for code assessment (which applies here, rather than impact assessment, which would apply if the appellant had sought approval for construction or some new use on its site) “a proposal that complies with all Acceptable Solutions will be approved.”  For impact assessment there are additional requirements of the proposal:

“-being able to be conditioned to mitigate any potential adverse impacts;

-meeting the Code’s purpose;

-meeting the Plan’s DEOs;”

1. Of the performance criteria, the introduction says:

“They provide a statement of the outcome that the Acceptable Solution must achieve.  A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met…

The Acceptable Solutions represent the preferred way of complying with the Performance Criteria.  There may be other ways of complying with the Performance Criteria while still meeting the Code’s purpose.”

1. The purpose of the Demolition Code set out in section 3 includes protecting non-residential character.  The presently relevant aspects of the purpose are:

“-protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity.

-ensure the preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to 1946;

-in conjunction with the Residential Design – Character Code, ensure that precincts of houses constructed in or prior to 1946 are retained and redevelopment in those precincts complements the houses constructed in or prior to 1946.”

1. I agree with the parties’ counsel (and their expert architects) that the performance criteria here offer three possibilities (the three “dot points” of P1) of the appellant establishing a case for demolition or removal, on the basis of having a pre-1946 residence, and that the Acceptable Solutions offer five such possibilities, A1.1 applying in two ways, one where the building has been substantially altered, the second where it “does not have the appearance of being constructed in or prior to 1946.”  Whether the first circumstance must be accompanied by the second one, if that one of the five possibilities is to be relied on, need not be decided here.  Unless that double requirement exists, it would appear that approval for demolition of most pre-1946 housing might be readily obtainable.

1. No case is (or could be) presented by the appellant regarding the structural condition of the building.  It is more difficult than one might expect to establish compliance with the second “dot point” of P1 or with AS1.2.  See Armstrong v Brisbane City Council [2003] QPEC 007 and Craig Securities Pty Ltd v Brisbane City Council [2006] QPEC 044. Compare Ken Ryan & Associates Pty Ltd v Brisbane City Council [2007] QPEC 093.

1. In this appeal under section 4.1.27(1)(e) of the Integrated Planning Act 1997 (IPA) the appellant bears the onus of showing that the appeal should succeed: section 4.1.50(1).  It must produce in the court an affirmative satisfaction that one of the five possibilities it does rely on has been made out.  Although there may be some overlapping of considerations from one to another, I do not think it is open to the court to form a broad judgment based on all factors to the effect that demolition or removal ought to be permitted.

1. The five independent questions whether particular possibilities are made out by the appellant fall to be decided without much by way of context.  The relevant facts are the building as it presently stands in its context in Linton Street.  The court had the advantage of a view. 

1. Notwithstanding suggestions that have been made, the building is in fact and in appearance a pre-1946 residence.  Some aspects of its story emerge from documents in the “Appeal Book”, Exhibit 1, which contains a number of documents made available by the Council on disclosure, thus conceded to be relevant.  Exhibit 1 was admitted subject to proper objections.  Mr Trotter, for the Council, questioned the admissibility of certain opinions expressed by persons who were not called, questioning their relevance, too. 

1. While the construction date of the subject building at number 97 Linton Street is unknown, its western neighbour at number 91 is accepted by all as much earlier, indeed, it is a 19^th century building sitting on low stumps with its verandah on northern and eastern sides long ago fully enclosed.  A drainage plan from 1925 located by Mr  O’Brien establishes that by that date, whatever it may have been like originally, the building at No. 97 had wings extending the width of the house at the rear on both sides, each provided with its own staircase facing Linton Street in addition to the conventional stairs at the far eastern end of the front and at the rear.  A plan in Exhibit 1 behind Tab 14 (Existing Site Plan prepared by Contract Design Staff Pty Ltd for Peter Eldon and Chris Smith) shows there has been removal of the stairs at the front proper, an extension of the eastern “wing” and provision of rear stairs descending from it, also reorientation of the pre-existing rear stairs and addition of a landing at the top.  The conclusion may be drawn that the building has been operating as a duplex for a long time.  A letter of Mr Petrov to the Council of 2004 asserts that the existing dwelling on the site was and had for 20 years been two registered flats (Nos. 97 & 99 Linton Street) in connection with a proposal to “turn the existing two registered flats into two detached small dwellings”; the matter of immediate concern was safety considerations to do with an existing service station within 50 metres (that facility is still operating at the corner of Vulture Street and Wellington Road).  See Exhibit 1 Tab 10.  In relation to the same development application (DRS/USE/H03/850097), Ken Drew Town Planning Pty Ltd advised the Council on advice from the client that the existing house “was relocated on to the site post-1946 (he thinks it was in the sixties)”, in which case demolition and replacement by “a purpose built multi-unit dwelling for the site” would be favoured.  Council officers consulted a 1946 aerial photograph but found it difficult to judge whether what was depicted there was the same house as existed on the site in 2003.  A Mr Colin Robertson had been consulted by Anna Havill, the assessment manager involved, and he told her, apropos Ken Drew’s interest in demolition:

“The pre-1946 traditional building character of the street has been slowly disintegrating over the last few years and the Woolloongabba area as a whole is in a period of transition. 

Although the area is within the Demolition Control Precinct it would be unwise to build a case for the retention of almost any pre-1946 house in this street.

This advice above refers to the question of demolition only and the applicant is advised to seek the advice of the assessment manager regarding further application.” (Exhibit 1 Tab 21)

(Mr Robertson’s opinion was among the material Mr Trotter suggested the court should not act upon.)

Ms Havill wrote on Council letterhead to Ken Drew on 9 April 2003 to:

“confirm that Council is prepared to favourably consider the Demolition of the existing dwelling on this site.  Please be aware that as part of any application for Demolition, you will need to address the Demolition Code.” (Tab 20)

1. Matters did not proceed in that way.  Rather, about 19 May 2005 the Council issued a decision notice approving a proposal to divest the existing house of its “wings”, relocate it hard against the eastern boundary of the site, raise it (Mr O’Brien estimates from 1.5 metres or thereabouts clear of the ground to 2.4 metres) build in the rear part underneath and add a large deck at the rear and new stairs at the front; a new house similar in style and dimensions was to go on the western side of the site which is 708 m² in area and had a street frontage of 20 metres.  A proposed site plan among the approved plans prepared for “Peter Eldon & Chris Smith” indicates “house to be relocated from another site.”  The 19 May 2005 approval has been acted on to an extent, greatly changing the character of the site and the pre-1946 building.  The “wings” have gone, leaving the obvious “wounds” which Mr Scott described.  The relocation and raising have taken place and the removal of four sets of stairs, one set from the front of each wing, one from the back deck of the eastern wing, one from the rear of the “core” of the building on the western side.  At present there are no stairs, but the rear balcony (both incongruously large and sporting a roof with a pitch far too shallow for a pre-1946 residence) has been constructed.  Except for the front, where there are four traditional timber stumps (the second from the east not placed symmetrically but moved distinctly to the west to facilitate movement of vehicles to and from a garage area beyond), the building is now supported on slender steel columns rising from a concrete pad whose irregular disposition is doubtless explained by their intended use to support cladding and internal partitioning if the project were to go ahead.  Nothing having happened in respect of the proposed twin residence to the west, the house currently has no yard to the east, a generous one to the west.  It is eccentrically located on the site and creates an unavoidable impression of being in transition, perhaps of being in the course of removal.  Only someone who knew the building could be sure it was not a recently arrived removal house from somewhere else.  We are given no idea why the approved proposal is not being proceeded with.  For what this is worth, the elevations proposed for Eldon & Smith indicate an intention to finish the front with timber batten screening and open balustrades; more importantly, the two stage stairs proposed, with a landing half-way up, would serve to conceal the visually startling arrangement of stumps, as would the treatment of the top landing including a post extending from the top of the displaced “stump” to the roof.  The May, 2005 report of Council’s planning officer, Mr Glenn Agius states:

“The applicant has endeavoured to achieve a development that is consistent with and complimentary to the pre-war character of the locality.  Although the proposal is considered to be a ‘multi-unit’ dwelling by definition, the development will ultimately present as two single detached character buildings to Linton Street.”

He spoke too soon.

1. Unfortunately, the court has no way of predicting with any confidence at all what might happen on this site in the future, whether the demolition/removal is permitted or not.  If the latter, the court was asked by the parties to proceed on the basis that the house will remain as it is indefinitely.  If demolition is permitted, one may assume that it will go ahead, but as to whether the site would remain vacant indefinitely or be developed in some way, the court was not invited to make any assumption or guess.  I have been told and accept that if there is redevelopment the Residential Design/Character Code would apply, establishing some constraints.  It is likely, for example, that while the low-medium density residential designation may support three storeys, the Code would preclude more than two.

1. There is a degree of unreality about it, but the court is expected to proceed as if the alternative scenarios are that the building remains as it is or that it simply disappears.

1. The real protagonists are the appellant’s architect, Mr O’Brien, and the Council’s Mr Scott.  Each was taken to task by counsel on the other side.  Mr O’Brien ventured the opinion that the building was ugly (transcript p 27, day 1, leading to cross-examination at p 44), which was said to vitiate all of his opinions regarding its contribution to the character of the street, etc.  It is established that to have “traditional building character” buildings do not have to accord with some “prototype from which only minor deviations of style are permitted” (Razia Developments Pty Ltd v Brisbane City Council [2004] QPEC 059 at [25] ff, Berlese v Brisbane City Council [2002] QPEC 073 at [11], Armstrong v Brisbane City Council [2003] QPEC 007 at [15] to [17]). I think Mr O’Brien accepted that views about the attractiveness of the building were beside the point. Apart from the currently visible insults inflicted upon it which make it appear odd or incongruous in its context, the building has a severe appearance because the face it presents to the street is dominated by an unrelieved expanse of 8 ½ rows of weatherboard capped by a sill rather than the more familiar open balustrade which is usually relieved in some way, such as by openings to allow entry to the verandah. The gap to accommodate the original stairs has been repaired by more weatherboards intended to be in alignment with the existing ones. It could be argued that the building is one of those which “present large unarticulated facades to the street”, said to be unwelcome in the assessment guidance contained in s 4 of the Demolition Code:

“Street Context

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

The sense of scale of a street can be diminished if buildings are introduced that significantly exceed the surrounding building height, present large unarticulated facades to the street, or interrupt the rhythm of stepping roof lines in a sloping street.

Building form and scale

The predominant traditional building form of pre-1946 housing is a solid core with attached or integrated verandahs raised above the ground on timber supports.  Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandahs.  Roof forms are medium pitched pyramids, hips or gables.

Building form can detract from the character of the street if it conflicts with the established patterns of roof shape and pitch, the relationship between floor and ground levels, and the traditional concept of lightweight verandahs attached to a solid core.

Materials and details

The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens and batten panels that cast shadows and provide three-dimensional effects.  Character is also derived from the relatively limited range of materials available at the time of construction.  This provided a unifying theme of painted timber walls and corrugated steel roofing. 

These lightweight external elements reduce building bulk and form a transition with the external landscape.  They make an appropriate response to the local climatic conditions of strong sun and high rainfall.

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

Setting

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

The setting of new buildings can detract from the character of a street if garages dominate, or if fencing, orientation or setbacks conflict with the established settings.

The setting of the building on the site is also important, particularly in terms of the setbacks provided to existing or proposed side boundaries.  Setbacks complying with related codes of the City Plan contribute to the character of older suburbs.”

1. It may be significant that although public notification was carried out as required by s 6 of the Demolition Code, including the posting of a sign in the required format on site, no comments were received from any person (nor were any comments forthcoming from adjoining owners who were individually invited to lodge them).

1. Mr Trotter suggested that the warning that “lodging comments does not give any right of appeal against the Council’s decision on the application” may have dissuaded people from offering comments, but I do not think this would be the case.  My impression is that those members of the community likely to be interested would regard the Brisbane City Council as enthusiastic in its protection of our pre-1946 built heritage.  I take the lack of comment to be some indication that the building is not valued by those in its immediate vicinity.  However, while comments supporting retention of the building on relevant grounds might assist the Council’s stance against demolition, I accept that the lack of such comments goes no way towards weakening the strength of its case.  As seen above, the Council has been ambivalent over the years about this building.  It was not prepared to refuse the appellant’s application, as it had done in other matters such as Armstrong, Berlese, Razia Developments and Craig Securities.  Ken Ryan & Associates was a deemed refusal, but the Council supported demolition in the appeal.  Notwithstanding the views expressed above, the court, like Mr O’Brien, must be astute to prevent aesthetic considerations from intruding.  A pre-1946 building, even if “ugly”, is to be assessed only on the factors recognised in the Demolition Code as important. 

1. The criticism of Mr Scott was that he was totally inflexible, committing himself to a view that any pre-1946 residential building represented “traditional building character”, which must not be allowed to be lost.  Mr Scott did not go so far, in my assessment.  Indeed, he volunteered that a pre-1946 building sandwiched between two apartment blocks might be disabled in those circumstances from being seen as making a contribution that should be preserved.

1. As to the qualities of the building, Mr Scott’s report summarised his views:

“3.03The features which identify this building as having traditional building character are as follows:

-Timber framed and clad building on stumps

-Open verandah to the front

-Truncated pyramid roof clad with corrugated iron

-Timber framed, casement windows, protected by window hoods

-A setting similar to other traditional houses in Linton Street

3.04The features of the house which have changed since the house was built are as follows:

-The house appears to have been raised.  The house is now supported on steel posts except for the front row of traditional timber stumps.

-The front balustrade is now a solid weatherboard balustrade.  It is very likely the front verandah was enclosed at some stage and is now partially opened up, without the original battened balustrade reinstated.

-At least some of the original doors or windows between the core of the house and the front verandah have not been reinstated with the opening up of the front verandah.

-The front stairs to the house have been removed

-Side wings towards the rear of the house (apparent on the 1946 aerial photograph) have been removed and external cladding has not been fitted in these areas.

-A covered deck has been fitted to the rear of the house.

-The house has been moved close to its eastern boundary.

3.05As noted above, in my opinion the house is still recognisably a pre-World War II, Queensland style house, or a building of traditional character as described in City Plan.  The following sections of City Plan assist me in coming to this view…”

1. More expansively, Mr O’Brien’s evidence in his written report was:

“50The building displays the following significant differences to a house of pre-1946 “traditional” character:

-Fully sheeted weather board balustrades rather than rail and broomstick or rail and vertical batten balustrades;

-No front steps;

-Back deck lean to roof much longer than usual;

-Traditionally high houses usually had some form of enclosure under which additionally concealed the reminder of the site and adjoining and rear built form;

-Steel columns supporting the structure;

-Front wall of verandah – window/door placements (there are 2 single doors and no windows in this wall on the existing house);

-An uneven pattern/rhythm of front stumps;

-Traditional houses were usually but not always near the centre line of the lot;

-Incomplete external cladding (although single skin cladding of a different form was not unusual);

-Refer to Appendix B for Photographs of the Existing Building;

-The proportional relationship between the height above ground at the front compared to the width of the front of the house and the height from the main floor to the ceiling.  (On reasonably level sites such as this, for the typical house the ground underside of floor height was about 2.1 metres (7 feet) or less, the floor to ceiling height was 3 metres (or more), and the width of the front of the house appeared to be quite generous in relation to its height.  These proportions were consistent with the drawings of the original house (Appendix C) but are no longer the case).

51All of these ‘features’ are obvious when viewed from the street.  In my view, the result is that the house does not contribute positively to traditional building character within the streetscape.        

6.2What Present Features are Common to Houses of Traditional Character

52The building displays some elements which are common to pre-1946 “traditional” houses as follows:

-Round timber stumps across the front;

-Corrugated steel or iron roof sheeting;

-Weatherboard cladding;

-Roofed front verandah;

-A couple/few metal sunhoods over side windows;

-A hipped roof with an integrated skillion roof which reduces the plane and pitch of the main roof as the front meets the verandah;

-Window types and proportions.

6.3        Summary with Respect to ‘Traditional Character’

53A number of the ‘common’ features described are also common to post-1946 houses, such as weatherboard cladding, a roofed front verandah, corrugated steel roofing, uneven spacing of stumps to provide under-house car parking, and a hipped roof shape of similar pitch.

On balance, I consider that the obvious differences when viewed from the street significantly outweigh the more subtle similarities to pre-1946 “traditional” houses especially when the similarities are not unique to pre-1946 houses.

54In summary, the existing building does not portray a sufficient strength of pre-1946 “traditional” character to warrant retention.

55       Consequently, I consider that the building does not sufficiently “represent” traditional building character” as required by the first dot point of P1 of the Demolition Code.

6.4The Building as it Appeared in 1946      

56       An aerial photograph of the relevant part of Linton Street is included as Appendix A Figure 5.

57       It shows what is effectively a T shaped house located centrally on the lot.

58       A drainage plan which is dated 11-02-1926 is included as Appendix C.  It is consistent with the outline of the house shown in the 1946 aerial photograph.

59       Appendix C contains drawings of the then existing house which were prepared in 2003 to support a Development Application to move the existing house to its present position, to renovate and extend it, and erect a second detached house on the site.

60       These drawings appear to be generally in accordance with the roof shape, footprint and position on the site of both the 1946 aerial photograph and the drainage plan in Appendix C.  The drawings appear to be sufficiently detailed to satisfactorily described the appearance of the building in 1946.  

6.5The Significant Differences between the 1946 Building and the Existing Building      

61       A comparison of the drawings prepared in 2003 which show the 1946 appearance to the photographs of the existing building reveal the following differences:

a)        The building is now rectangular in shape and has had its “wings” removed from each side at the rear;

b)        The now rectangular building has been relocated from the centre of the lot to the eastern side, leaving what appears to be a vacant lot on the western side of the site;

c)        The building has been raised to provide a height under the house of approximately 2.6 metres instead of approximately 1.5 metres;

d)        There are now no stairs whereas previously there were 4 sets of stairs with 2 sets of facing the street;

e)        The front verandahs on each side wing no longer exist;

f)        The house has been moved further away from the street;

g)        Slender, widely spaced steel columns now support the house instead of the previous combination of round timber stumps and square (mostly likely concrete) stumps;

h)        The removal of the wings has exposed internal lining and framing to view;

i)         Exterior and interior walls of the rooms at the rear and the skillion roof above them have been removed.  The floor has remained;

j)         To the rear, additional floor framing and a new skillion roof of different pitch to the exiting have been added.  This gives the appearance of a roofed rear deck of an extent greater than was typical of those pre-1946.

62       These alternations are not only substantial in my opinion but they are obvious from the street and thus have an impact on the streetscape.

63       Not only has the building been substantially altered from its 1946 conditions, as stated above it does not sufficiently portray the characteristics of a pre-1946 house.  Consequence, the building complies with each alternative of Acceptable Solutions A1.1.

7.Conclusions        

64       The photomontages in Appendix F show that the demolition of the subject house will not be detrimental to the traditional building character of the street.      

65       In my opinion all of the following are applicable in this case:

a)       A1.1     -        building has been substantially altered since

1946;

-        the building does not sufficiently present the appearance of being constructed prior to 1946;

b)       A1.3     -        demolition of the building will not sufficiently result in the loss of traditional building character within the street;

c)        A1.4     -        the part of the street in which the site is

located has insufficient traditional building character;

d)       P1        -          (first alternative dot point), the building does

not sufficiently represent traditional building character, and;

e)        P1       -          (third alternative dot point), the building does

not contribute positively to the visual character of the street,

66       In my opinion because its contribution to the traditional building character of the street is insufficient, demolition of the house would meet the Performance Criteria and Acceptable Solutions of the Code.”

1. I took it to be common ground that a pre-1946 residence which did not present as such would lack the requisite character.  That said, very extensive alterations may be effected without depriving a pre-1946 residence of that character.  In particular, verandahs may be enclosed (even completely) to provide the common “sleep-out”, for example, or the house may be raised and built in underneath.  There was surmise by the experts that at 97 Linton Street, the verandah had originally been open, then enclosed, then had the windows removed, resulting in the current arrangement.  This is pure speculation, as is the thought that the “wings” were added sometime before 1925:  they may have been original.  All this is by-the-by.  The essential conclusion, which the court reaches easily, is that the house for present purposes exhibits traditional character, notwithstanding the current blemishes.  Mr O’Brien strove to promote the idea that it might be taken as a product of a later era, pointing to its similarity (according to him) with a house at 99 Sir Fred Schonell Drive, St Lucia, a photograph of which was tendered, representing a post-war house.  The photographed house lacks the traditional central core-verandah element, likewise hoods over windows and other more detailed features. 

1. I take it Mr O’Brien was postulating confusion in the ordinary person, or the ordinary moderately well informed person, rather than confessing to any personally.  In my opinion, an ordinary, moderately informed person, asked to assign the building to an era, would select pre-1946, and as representing, albeit not ideally, traditional building character.  For what it may be worth, my own impression is that the somewhat heavy, rather than lightweight appearance of the verandah is uncommon in Brisbane,[1] although encountered with some frequency in country areas, very likely adopted in the interests of economy.  As to the third “dot point” of P1, “positive” may mean (a) definite or perhaps (b) (as opposed to “negative”) favourable, desirable, commendable or helpful.  The Macquarie Dictionary says “consisting in or characterised by the presence or possession of distinguishing or marked qualities or features”.  The parties appeared to favour meaning (b) (i.e. something the opposite of negative), and espoused opposing assessments.  Here, the “visual character of the street” looks to the particular street, rather than to “traditional building character.”  The building could not be considered an eyesore contributing negatively.  Whatever connotation “positively” has, the appellant fails to establish compliance with P1 in this respect.  The house is readily observable where it stands as a “timber and tin” residence from a past era. 

   [1] Since writing this, I have noticed in the streets of Graceville and Chelmer, along and leading to the railway line, a considerable number of solid weather board balustrades, most with some ornamentation to avoid an appearance of starkness.

1. Turning to the acceptable solutions, for A1.1, I accept that the building does have the appearance of being constructed in or prior to 1946, which in my opinion means A1.1 is not satisfied.  The building, like practically every pre-1946 residence, has been altered in the ways listed exhaustively by Mr O’Brien.  I do not think that is enough on its own, even if the alteration is substantial; the point is that whatever alterations there have been have not deprived the building of the valued “appearance”.  As indicated elsewhere, I think that A1.1 is intended to work if both components are satisfied, or if the second one is.  I do not think it is intended to provide being “substantially altered” as a sufficient reason for demolition or removal to be approved.  It may be that “substantially” has to be given content by reference to the remnants of our pre-1946 heritage in acknowledgment of the Demolition Code’s “Purpose” and anterior provisions in City Plan 2000 (some being collected in Razia Developments at [12] to [14]).

1. This leaves A1.3 and A1.4 which are related in a way, like the components of A1.1. This does not mean that the court should consider them together, since the relevant exercise is to find whether one or the other is satisfied.  Mr O’Brien’s view (paragraph 49) is that the part of Linton Street in which the subject building is located does not portray on the southern side a streetscape which exhibits a continuity of traditional building character.

1. There is precedent for focussing on particular sections of a “street” in this context, as occurred in Ken Ryan & Associates, in which Mr O’Brien and Mr Scott were in agreement about it, rating the northern side of Sylvan Road in Toowong poorly in the relevant location compared with the opposite side.  The same judgment is made by both of them here, to the effect that traditional building character is stronger and more consistent on the northern side in Linton Street generally, and at the eastern end, in particular.

1. The pattern of residential subdivision on the north produced uniform 15 metre frontages and the construction of similar (albeit considerably altered) single pre-1946 residences on each.  The uniformity in scale, spacing and alignment referred to in relation to street context and setting in the Code provisions set out in [16] above is clearly observable.  The subdivision patterns on the southern side produced longer (typically 20 metre) frontages.  The disposition of buildings is relatively untidy.  Thus 73 Linton Street has two (well presented, but substantially altered) pre-1946 character buildings on only one parcel.  77 Linton Street, even in 1946, presents as a timber and tin dwelling hidden behind a stucco façade; it is a wide structure containing two “semi-detached” residences.  83 Linton Street is two floors of units above car parking, fairly recently constructed, clearly non-character.  85 Linton Street is a parking lot associated with the cricket ground, where there is no building.  Number 91 is a 19^th century house, as referred to elsewhere, lowset with its verandah fully enclosed on two sides.  It has a narrow setback in the west, a very wide one in the east.  Next comes number 97 with an even wider western side set back; for practical purposes, the notional number 95 presents as a vacant lot with a 10 metre frontage.  East of number 97 (and outside the Demolition Control Precinct) facing Wellington Road is the parcel with the longest Linton Street frontage of all, corresponding with two separate house frontages across Linton Street.  It accommodates a pre-1946 house close to Wellington Road, which is well presented.  The house proper, though well maintained, does little for Linton Street, which provides its side boundary, a good part of the rear of which is given over to obvious covered parking.

1. Mr Scott placed some value on the grouping of three houses from number 91 to the corner.  He took refuge in there being a group of two even if (as planning arrangements would appear to encourage) the corner site is redeveloped, perhaps to five storeys of residential accommodation.  Either way, it is a somewhat ill-assorted group, the house on number 91 being obviously older and much lower to the ground.  In my opinion, the grouping is relatively poor, number 91 being the outstanding contributor to whatever good qualities it might arguably have.  This part of Linton Street strikes me as more characteristic of a country town in which building of houses on adjacent sites may occur years apart, in disparate styles, than it is characteristic of Brisbane.  The wide side yards are more typical of the country, too, presenting a huge contrast with the much more intimate co-locations of houses in this closely settled part of Kangaroo Point.

1. Mr O’Brien produced his photomontages, setting out to show the streetscape from different angles with and without the subject building.  Loss of the building will involve creation of another nine metres or so of open space.  The court was urged by both parties not to speculate as to what might follow.  In respect of A1.3, I am persuaded by Mr O’Brien’s evidence that demolition of the building will not result in the loss of traditional building character within the street.  It would be unrealistic not to focus particular attention on this section of Linton Street, where traditional building character is relatively limited, lacking the relative harmony of the streetscape opposite; planning arrangements offer no protection for the house on the adjacent corner block, whose contribution is devalued by structures for accommodating vehicles.  Essentially, albeit with the loss of one structure, that same traditional building character will remain; the subject house’s current contribution to the streetscape is relatively poor, especially given its appearance of being unfinished and not habitable.

1. This conclusion results in the appeal being allowed.  The parties will no doubt avail themselves of the opportunity to try to work out a suitable form of order incorporating any appropriate conditions.

1. (It does not appear, nor did the Council contend, that there has been anything in the nature of a ruse pursued here, whereby the approval of 19 May 2005 was never intended to be implemented fully by being taken beyond the stage of lifting, raising and emasculating the existing house.  This appeal has been conducted on the assumption that the original proposal was a genuine one whose full proposed implementation was unexpectedly frustrated and that without anything like collusion the applicant has acquired the site and made a bona fide judgment that implementing the existing approval cannot be justified.  If different circumstances intruded, for example if there had been no change in ownership of the land, there might well be considerations leading to a different outcome: cf Bunnings Building Supplies Pty Ltd v Redland Shire Council [2002] QPELR 193, 199. The Council evinced no enthusiasm for pursuing an outcome along the lines of the 2005 approval by some means being implemented or of things done under it being reversed. It is not inconceivable that the Council thereby abandoned any chance of a different outcome. There may be a useful lesson to be learned, that for similar situations in the future, approvals like the 2005 one should contain conditions offering security that projects will not be abandoned incomplete to the possible detriment of streetscapes whose essential character should be preserved.)