Garrad v Brisbane City Council
[2004] QPEC 37
•18 August 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Garrad v Brisbane City Council [2004] QPEC 037
PARTIES:
ROSS EDWIN GARRAD
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and
BRIAN DAVID WHITE
DAVID WILLIAM EDWIN WHITE
DEREK KEITH TREBILCOCK
LOIS NAISMITH
JM JONES
RONALD KEITH & JUDITH MARGARET STOWER
Co-RespondentsFILE NO/S:
Appeal No
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
DELIVERED ON:
18 August 2004
DELIVERED AT:
Brisbane
HEARING DATE:
4 & 5 August 2004
JUDGE:
Skoien SJDC
ORDER:
Appeal allowed
CATCHWORDS:
Two unit dwelling in Low-Medium Density Residential Area and Demolition Control Precinct, Character House precinct
COUNSEL:
Appellant in person
Mr Cochrane for the respondent
Mr BD White, co-respondent, representing all co-respondentsSOLICITORS:
BCC Legal Practice for the respondent
This is an appeal by Mr Garrad, the owner of land on Ryans Road, St Lucia (lot 69), against the refusal by the Council of his application for a development permit for a material change of use to construct a two unit dwelling on the land. The application also was for the reconfiguration of lot 69 and the adjoining lot 68 (also owned by Mr Garrad) because access to the proposed building was to be by reciprocal easements along the common boundary of lots 68 and 69.
The co-respondents are objecting submitters to the application. Most relevantly they include Mr BD White who is the owner of the house and land immediately to neighbouring lot 69. He represented the co-respondents at the appeal hearing.
The Site
It is necessary to regard the site as not just lot 69 but also lot 68 because of the presence on lot 68 of a dwelling house of considerable cultural importance, a fact accepted by all parties. This house, which was built in about 1901, has since then occupied the centre section of a large allotment in Ryans Road of which lot 69 provided a large garden area at its northern end. A similar sized area to the south of the house, (lots 65 and 66) was also given over to garden use. Predominantly on lot 69 is the bitumen driveway giving access to the house, lined with old Cocos Island palm trees, a swimming pool and some trees, including a line of frangipani trees along the side and rear boundaries.
The house on lot 68 (which is also partly on lot 67 to its immediate south) presents to Ryans Road as a rather small wooden cottage but in fact it is quite a large house. It extends back from the road as a two storied building. The top story is a good attractive example of the “timber and tin” house of the type built in the early 20th century. As it stands now it is not readily fully visible from Ryans Road because of the presence near the road of a brick wall and pool fence to the north of the house. It is, however, readily visible from Mr White’s house. The ground floor, not readily visible from Ryans Road because of the downward slope of the land, was built much more recently and is cladded in brick. It cannot be said to be of particular cultural value.
The Locality
The major road in the locality is Sir Fred Schonell Drive which runs from west to east, to the University of Queensland. Ryans Road joins it at right angles and runs (relevantly) roughly north to south past the site. Sisley Street runs from Ryans Road towards the east. Mr White’s house is on the south eastern corner of that intersection. Proceeding south there is then lot 69, lots 68 and 67 (the existing house extending over both), then lots 66 and 65 (mentioned above), then Depper Street which runs to the east.
Mr White’s house is a pleasant pre-1946 character “timber and tin” house. To the immediate east of his house, at 15 Sisley Street, is a very attractive character house of real cultural value, dating from about 1900. It is also “timber and tin” and it stands immediately to the rear of the site, but substantially lower than the site because of the fall of the land.
Opinions differed on the extent to which the attractive upper floor of the existing house on lot 68 is visible from Sisley Street. Aided by the view I had of the site and locality I would seriously doubt that a motorist would observe it. A pedestrian would have some view, limited by the topography and vegetation. I do not consider that this view and any impairment of it plays any real part in the appeal.
Other buildings in the area are a mix of detached houses and multi-unit dwellings, the latter notably along Ryans Road. Directly opposite the site on Ryans Road, is the Chinese Christian Church, a large brick complex which frequently causes heavy parking of cars along Ryans Road.
It can fairly be said that the house on lot 68, Mr White’s house and the house at 15 Sisley Street make up a valuable pre-1946 character precinct.
The Proposal
The proposal for the site for which Mr Garrad applied was for a building containing two double storied dwelling units, one of which would face Ryans Road directly, with the other, although itself directed towards Ryans Road, positioned behind it. One of the Council’s objections to it (probably the principal one) was that its appearance and bulk was incompatible with the pre-1946 character of the area. Since the filing of the Notice of Appeal Mr Webb, the architect of the proposal, submitted amended plans which the Council considers are in a form which is no longer incompatible, and on which (subject to proper conditions) it is prepared to issue the development permit.
The Issues
The issues, as they were litigated, can be summarised under the headings character, gross floor area, privacy, landscaping, building set-backs, visitor carparking, building orientation and pedestrian and vehicular entry point.
City Plan
The site is within the Low-Medium Density Residential Area of the City Plan and is also within a Demolition Control Precinct.
The intent of the Low-Medium Density Residential Area contained in Section 5.4.1 of Chapter 3 of the City Plan is for the area to “contain a mix of houses up to 2 storeys and two to three storey multi-unit dwellings”. For land in the Demolition Control Precinct, it is also intended that “pre-1946 housing will be retained and new development will reflect pre-1946 architectural character”. Relevant Desired Environmental Outcomes (“DEO”) for the Low-Medium Density Residential Area are that:
· “Low-medium density living environments comprise houses, among multi-unit development at house-compatible scale, predominantly of no more than 2 storeys”.
· “The Area has a mix of housing types and forms …”; and
· “In Demolition Control Precincts pre-1946 buildings are largely retained, and new buildings reflect many of the Precinct’s architectural themes”.
The guiding Development Principles contained in Section 2 of the Local Plan seek to:
· Maintain a “diverse mix of housing”;
· Protect “groupings of pre 1946 character dwellings”;
· Encourage “higher density living near … public transport and the University of Queensland”; and
· Maintain “the ‘green and leafy’ character of the District”.
The level of assessment table for land in the Low-Medium Density Residential Area contained in Section 5.2.3 of Chapter 3 of the City Plan designates development of the type applied for in this appeal as Impact Assessable (Generally Appropriate) and Section 2.5 of Chapter 3 of the City Plan states that such developments are those “for which adverse impacts are usually able to be mitigated”.
Character
The Purpose of the Residential Design – Character Code (section 3), which comprises the key assessment criteria for Multi-Unit Dwellings in Residential Areas in the Demolition Control Precinct, is to encourage development to “reflect or strengthen pre-1946 housing character through compatible form, scale, design and materials” and to “ensure that precincts of pre-1946 houses are retained and redevelopment in those precincts complements the pre-1946 houses”.
The explanation of “traditional character” contained in Section 4 of the Residential Design – Character Code provides guidance on the design elements and characteristics of pre-1946 areas, to which new development must be complementary includes:
·Building form and scale – “A solid core with attached or integrated verandahs” and “roof forms are medium pitched pyramids, hips or gables”;
·Street context – established patterns of roof shape and pitch”;
·Materials and detailing – traditional materials such as painted timber and corrugated metal roof, and the use of lightweight external elements such as “eaves, sunhoods, verandahs, lattice screens, and batten panels”. These operate to reduce building bulk and provide an appropriate climatic response; and
·Setting – “a fairly uniform building line, with individual front gardens punctuated with a pedestrian path and single width driveway”.
Reference must also be had to the several Performance Criteria which form part of the Residential Design - Character Code and the Residential Design - Low Density Character and Low-medium Density Code.
The statutory planning principles set out in paras [13] to [17] clearly envisage infill development within precincts of pre-1946 houses, provided the redevelopment complements the pre-1946 houses through the use of compatible form, scale, design and materials.
The opinions of experts and lay people obviously can differ on whether a particular design complies with the City Plan’s requirements. The statement of Mr Trebilcock which was tendered by Mr White is critical of the design and concludes that the City Plan’s requirements have not been followed. Two things must be said about his statement, however. First, it does not make it clear whether he was referring to the current plans or to earlier ones but in his favour I assume it was the current ones. Second, while his report was admitted by consent and therefore became evidence he was apparently unable to come to court to present himself for cross-examination. In those circumstances I prefer the evidence of Mr Webb, the project architect and Ms Rayment, a town planner.
On the evidence of Mr Webb and Ms Rayment, as well as the lay opinion I formed from my inspection of the site and an examination of the drawings (particularly the elevations) of the proposed building I am satisfied that the proposal adequately satisfies the City Plan’s requirements.
Gross Floor Area
This issue was based on Mr Trebilcock’s valid criticism of the original plans which, as he pointed out, could not be built on the site unless the building was constructed larger than as dimensioned. However it emerged that an arithmetical error had been made in those plans. Once that was corrected by Mr Webb it became clear that the site coverage was within the limit permitted by the City Plan.
That conclusion is dependent on my being satisfied that the areas designated as “lobby” for the two proposed units are properly so designated, it having been suggested that the term is restricted to public buildings. I am not aware of any authority restricting its usage thus and indeed the Concise Oxford Dictionary includes as its meaning “entrance hall” without any such restriction. More relevantly, the definition of “gross floor area” in the City Plan does not impose such a restriction. So the calculation of gross floor area made by Mr Webb correctly excludes the areas of the lobby for each unit.
Privacy
This issue relates to the overlooking of Mr White’s house which occupants of the proposed units could have. It would of course be inevitable that, given the downward slope of the land, such an overlooking would occur. And it must be remembered that the City Plan clearly contemplates that a two storey building (of the appropriate design) can be built on the site. So despite the presence of Performance Criterion P12 (“habitable spaces must not directly overlook dwellings on adjacent land”) it is difficult to see what importance can be attached to this issue.
Notwithstanding the above, Mr Garrad is content to accept a condition that specifies screening of windows which would reduce to quite acceptable proportions any breach of privacy of the occupants of Mr White’s house. I am satisfied therefore that no unacceptable invasion of privacy would be occasioned by the development. In that context I think it quite unlikely that the position of two laundry doors in the northern wall will create a problem of any consequence. Their use will be fleeting and irregular.
Landscaping
The proposed development will inevitably cause destruction of some existing trees. For example, the Cocos Island palms will be lost. Perhaps Mr Garrad’s assessment of their condition would be enough for me to regard them as a lost cause in any event. But quite apart from that, as I have pointed out, a building on the site is obviously permitted by the City Plan so in any event the palms would be lost.
A condition should require the preservation, where possible, of existing trees and shrubs, the replacement where possible of lost trees and shrubs and the creation of appropriate landscaping to accord with Performance Criterion P5.
In the appeal there was debate about the availability of sufficient space on the northern boundary of the site to accommodate a pathway, a drying area and adequate landscaping. I accept the opinion of Mr Webb that there is adequate room.
Building Set-backs
This issue revolved around two set-backs of the proposed building, that to the north and that to the east.
The distance between the wall of the building itself and the northern boundary does not infringe the required set-back of 2 metres. Indeed the set-back is 2.3 metres. The only intrusion is occasioned by the two sets of stairs which lead onto the northern area from the two laundries. The stairs from the rear unit has, I gather, three steps, the stairs from the front unit six.
Careful reference to the Code shows that the stairs from the rear unit in fact fall within the acceptable solution proposed by the Code. Its bottom step is 1.8 metres from the boundary and the Code allows walls less than 4.5 metres high to approach to 1.5 metres. The steps, even if classified as a wall (which would be a rather artificial concept), are less than 4.5 metres high at their highest, and of course their height rapidly decreases as they extend out from the building.
The stairs from the front unit come to within a metre (0.8m) of the boundary. However, I do not consider that this fact, of itself, breaches the required performance criterion and even if it did, I would regard the design as an acceptable solution.
The scheme of the Code as set out in Chapter 5, Part 1, s.1.1 is to set out a number of Performance Criteria which must be met. If a particular criterion is not met an acceptable solution must be offered. The Code specifies some acceptable solutions which, prima facie, will result in the acceptance of the design. There may however be acceptable solutions other than those which are specified because, obviously, the drafter of the Code could not think of all possible circumstances. But it is important to bear in mind that no acceptable solution need be offered unless a Performance Criterion is not met.
In this Code Performance Criterion P13 has two paragraphs:
“Development must not significantly reduce daylight for open space and habitable rooms in adjacent development”.
and that clearly is not breached by the stairs in question.
“Boundary walls must be limited in dimensions and openings to minimise the impact on neighbours”.
I am not at all sure that the stairs for the front unit strictly fall within the second paragraph of the criterion but assuming that they do (being, perhaps, one of the “openings”) then I consider that having six steps leading down to 0.8m from the boundary to be an acceptable solution. The specified acceptable solutions all relate to walls and their heights. The emphasis is clearly on the prevention of walls of sufficient height to be a nuisance to neighbours, particularly by reducing daylight. A set of open stairs can hardly constitute that, particularly when the final two or three steps must obviously be very close to ground level.
The other consideration relates to the set-back of the rear wall of the proposed building from the eastern boundary. As planned it is 5.2 metres. The closest part of the house at 15 Sisley Street is the verandah (5.8 metres from the boundary), the external wall of habitable rooms being 8 metres from the boundary. Thus the planned building will be 11 metres from the verandah and 13.2 metres from the wall of the Sisley Street house.
It is clear that only the first paragraph of Criterion P13 is relevant for this issue. Given the topography, the relative positions of the proposed building and the Sisley Street house, and the roof design of the proposed building, I share the view of Ms Rayment that the requirements of Criterion P13 probably are not offended. It is highly unlikely that the proposed building would “significantly reduce daylight to open space and habitable rooms” in the Sisley Street property. Only in the late afternoon would there be a possibility of that. In summer it would be very late and a reduction in direct sunlight probably would be gratefully received. In winter the north westerly position of the late afternoon sun would probably mean that the proposed building would have little effect on sunlight to the Sisley Street house.
However, even if Performance Criterion P13 is offended the proffered solution of a 5.2 metre set-back seems to me to be an acceptable one. It was argued by Mr White that it would have the effect of reducing the distance to which the Sisley Street house might be extended to the west but such a reduction would be a very minor one and given the important character quality of the house, any alteration of consequence is probably quite unlikely.
Visitor Carparking
The City Plan requires, for the project, three carparks, one of which is to be for visitors. The proposal offers four, one for each unit and two visitor carparks, which is one more than is required. The criticism levelled by Mr White was that there could be no guarantee that the residents of the units would not appropriate the visitors’ carparks to their own use. Parking in the area is often very difficult especially when the Chinese Christian Church has services.
The provision of the carparks will be required by a condition. There will also be a condition that there be a sign, visible from Ryans Road, to direct visitors to those parks. Those conditions will run with the land and bind whoever may buy the units from time to time.
Whether a property owner will obey a condition is sometimes problematical and it must be accepted that it can be difficult to enforce performance of conditions. But these possibilities cannot, except in unusual cases, be sufficient warrant to refuse an otherwise acceptable development. Generally the Court must assume that people will obey the law. In this instance there is no reason to assume that the law will be broken and the fact is that the requirement of the Code in relation to visitor carparks has been complied with, indeed exceeded.
Building Orientation
Performance Criterion P2 in s.4.3 of the Code requires the building to be oriented to the street and facilitate casual surveillance of the street. To my mind the design of the proposed building does just that. It is not to the point that the unit at the rear may have windows or balconies which face elsewhere. The building as a whole has the desired orientation.
Entry Point
Criticism of the 5 metre crossover indicated by Mr Trebilcock was based on the wrong code and is unfounded. So far as access by pedestrians is concerned, I see nothing which is worthy of informed criticism.
Conclusion
The appellant has satisfied the necessary onus of proof. The appeal will be allowed but for now is adjourned to permit the parties to seek to agree appropriate conditions.
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