Gelling v Cairns City Council
[2008] QPEC 38
•26 June 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gelling & Ors v Cairns City Council and Anor [2008] QPEC 38
PARTIES:
MICHAEL & KATHY GELLING, IAN HAYNES & DENISE KINGSTON, PETER & JUDY ROMER, BILL BRADLEY, FAY HUTCHISON, JANICE ROBERTS, DAVID LONERGAN, KATRINA SANTO AND DAVID FORD
Appellants
V
CAIRNS CITY COUNCIL
Respondent
&
CAIRNS & DISTRICT ISLAMIC CULTURAL AND BUILDING TRUST
Co-Respondent
FILE NO:
208 of 2007
DIVISION:
Planning and Environment
PROCEEDING:
Submitter Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Cairns
DELIVERED ON:
26 June 2008
DELIVERED AT:
Maroochydore
HEARING DATE:
29, 30 April & 1, 2 May 2008
JUDGE:
K S Dodds DCJ
ORDER:
The appeal will be dismissed. The appeal is adjourned for conditions.
CATCHWORDS:
PLANNING – PLANNING LAW – material change of use – enlarging existing use – character precinct in Cairns Plan – whether compromise achievement of Desired Environmental Outcomes – whether conflict with the planning scheme – whether sufficient grounds to justify decision
Integrated Planning Act 1997 (Qld) s 2.1.3, s 2.1.7, s 3.5.14, s 4.1.50, s 4.1.52
Local Government (Planning and Environment) Act 1990 (Qld) s 4.4(1)(5A)
Cases cited:
Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Koerner & Ors v Maroochy Shire Council & Ors (2004) QPELR 211
Lewiac Pty Ltd v Council for the City of Gold Coast (1994) 83 LGERA 224
Prime Group Properties Limited v Brisbane City Council (1994) QPLR 153
Weightman v Gold Coast City Council (2002) 121 LGERA 161
Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41
COUNSEL:
D P Morzone for the appellants
P J Favell for the respondent
T L Fantin for the co-respondent
SOLICITORS:
Marino Moller Lawyers for the appellants
King & Company Solicitors for the respondent
p&e Law for the co-respondent
This is an appeal by submitters against approval (with conditions) by the respondent of an application by the co-respondent made on 22 December 2006 for a material change of use for a place of worship, a mosque (in the planning scheme, Cairns Plan, a place of assembly). The acknowledgement notice by the respondent was dated 17 January 2007.
The appeal is by way of hearing anew.[1] The co-respondent has the task of establishing the appeal should be dismissed.[2]
[1]Integrated Planning Act 1997 (Qld) (the Act) Section 4.1.52.
[2]Integrated Planning Act 1997 (Qld) section 4.1.50(2).
The application for a material change of use sought to enlarge the existing use. It involved an existing house being demolished and new buildings erected. At the commencement of hearing the appeal, modified plans for the buildings were sought to be relied upon and a declaration sought that the modifications were a minor change. They plainly were and I declared accordingly.
The application was impact assessable under Cairns Plan but not impact assessable (Inconsistent Use) a category provided for in Cairns Plan. 45 submissions were received in response. 44 were objections. One was a letter of support from the adjacent neighbour on the northern side. 26 of the objections were signatures on a petition. The other 18 were individual objections. The objections raised, variously, heritage and character issues, the unsuitability of an obvious place of worship in the street, environmental impact on the open space area at the rear of the land, traffic and parking as a result of the use enlarging, effect on property values and objection to a place of worship for people of Muslim faith. To the extent relevant, some weight will be given to these objections.
In view of the content of some of the objections it is appropriate to make clear that the appeal will be decided according to Cairns Plan, town planning principles and the evidence before the court. The use involved is a place of worship. The nomenclature of the Supreme Being and the method of worship is irrelevant.
The land involved in the application is situated at 31 Dunn Street, North Cairns, real property description Lot 5, Plan C 198147. It contains 673m² with a frontage of 16.7 metres and a depth of 40.2 metres. It is flat with a very slight fall from Dunn Street. A small timber house approximately 95m² on low cement stumps and with corrugated iron roof is situated on the land probably built around about 1956. It has at some stage during its life been vinyl clad. Aluminium windows have been fitted together with luxaflex or similar type window awnings. Air conditioners have been fitted into some windows. At the rear, a laundry leanto with skillion roof has been added. Since about 4 December 2000, the property has been used by the co-respondent as a place of worship and ancillary religious instruction, a mosque (Negotiated Decision Notice, dated 4 December 2000). The negotiated decision notice limited the use as a place of worship to 60m² nett lettable area and the number of worshippers on site at any one time to 20 persons. There were other conditions which need not be set out, however landscaping and screening conditions were imposed. These have not been addressed over the intervening years. It is apparent from the evidence that the long term hope of the co-respondent was always to redevelop the site and enlarge the use. So, money was not wasted on these things.
Dunn Street is aligned north west – south east. For ease of reference, I will describe its alignment as north south. It is flat throughout, about 500 metres long running between Upward Street at its southern end and Grove Street at its northern end. It is part of the Arthur, McLeod, James, Dunn Streets Cairns North Character Precinct. In the planning scheme, Cairns Plan, it is an access street. An access street may accommodate traffic volumes of between 300 to 2000 vehicles a day.
Dunn Street provides access to 23 developed lots on its western side. About halfway along its length on its western side is a vacant grassed area of land which is road reserve for extension of Gordon Street if it were to occur. Gordon Street is to the west of Dunn Street and is aligned at right angles to it. Behind the buildings on the western side of Dunn Street is a 25 metre wide area of open space. A concrete formed drain containing what was once a creek flowing roughly parallel to Dunn Street on its western side runs through the open space area parallel to Dunn Street. Bordering the area of open space on its western side towards the northern end of Dunn Street is a large Department of Public Works depot containing a number of large sheds. The road reserve is 8.75 meters. The road carriage way is 7.5 metres with a 1.25 metre footpath on the western side. The western side has constructed kerb and channel. There is presently a 5 metre bitumen pavement. The eastern side of Dunn Street is undeveloped. The Cairns-Kuranda railway line runs parallel to it on its eastern side. To the east of the bitumen pavement is 900 metres of road reserve and a wide grassed area of railway reserve land commonly used by residents and visitors to the street for parking. Beyond the railway line towards the northern end of Dunn Street is a treed area of land containing an historic cemetery and towards its southern end, a large Ergon Energy depot containing a number of large sheds.
In Cairns Plan, Dunn Street is within the Residential One Planning Area in the CBD Cairns North District. It is affected by a number of codes in Cairns Plan. Some codes are of no significance in the appeal and I will not deal with them. I will deal with the Residential One Planning Area Code, the Cultural Heritage Significance Code, the Demolition Code, the Parking and Access Code, the Landscaping Code and the Development Near Major Transport and Facilities Code.
In 2007 draft amendments to Cairns Plan were prepared, publicly exhibited and endorsed by the respondent. Currently they are with the State Government. They have not been gazetted.[3] Some of the amendments apparently combine the Cultural Heritage Significance Code and the Demolition Code into a code titled the Character Precinct Code.
[3]Integrated Planning Act 1997 (Qld) section 2.1.7(2).
Section 4.1.52(2)(a) of Integrated Planning Act 1997 (Qld) (IPA) requires that the appeal be decided on the laws and policies applying when the application was made but provides that the court may give weight to any new laws or policies the court considers appropriate. Here there are as yet no new laws or policies. Reference was made to the “Coty” principal[4], part of planning law in Queensland.[5] Weight may be given to draft amendments if an approval might frustrate the intent of proposed new planning instruments. It depends upon all the circumstances[6] and involves balancing the nature of the proposed development, the nature of the proposed amendments, any potential frustration of the amendment, community interests and fairness to an applicant.
[4]Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.
[5]Lewiac Pty Ltd v Council for the City of Gold Coast (1994) 83 LGERA 224.
[6]Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 62 per Fitzgerald P.
As modified, the proposal before the court is for:
§ A building to be used as a prayer hall with a net lettable of 160.55m² of which 16m² is for an altar area. Its capacity for prayer is 53 people, 39 males and 13 females plus the imam who leads the prayers. (The area for prayer for men and women must be separated. Mr Mohammed exampled by a curtain).
§ A separate tea room and a separate ablution building each separated from the other and the prayer hall by a covered area together approximately 100.4m².
Total site coverage approximately 276.5m²
§ On site parking for 11 vehicles (including one designed for the disabled) and one bicycle.
§ The complex to be set back 17.7 metres from the Dunn Street boundary with the tea room building and the ablution building at the front and the prayer building at the rear. Set back from Dunn Street to the front of the prayer hall is 22 metres. Side set backs for the prayer hall to be 2 metres and for the ablution building and the tea room, 1.2 metres. Set back at the rear to be 1.2 metres. Building height for the prayer hall, 5.1 metres to the eaves (this is well within the permitted building height in a residential area which is 7.5 metres to the underside of the eaves). Building height to the underside of the eaves for the tea room and ablution block, 2.4 metres. Height from floor to the highest point of the courtyard between the tea room and ablution block and the prayer hall, 4.9 metres. Height to the top of the dome located in the centre of the roof of the prayer hall, 8.1 metres (the dome I think is of symbolic significance as is the cross to a Christian place of worship). Some filling of the land (0.4 metres) is required to meet the Q100 flood height.
The grounds of appeal were wide ranging. They asserted conflict:
With the desired environmental outcomes of Cairns Plan:
Section 2.4.1 – to retain examples of the historical and current exemplary tropical styles, to demonstrate the evolution of the built environment throughout Cairns;
To promote development patterns of a distinctly tropical form of efficient, comfortable housing with access to natural areas;
Section 2.4.3 – to conserve places of cultural heritage significance in the area;
Section 2.4.4 – to respect and be compatible with the identity recognisable character, high level of residential amenity and connectivity of the locality;
To integrate community and social facilities within local and district centres;
Section 2.4.5 – to seek to reorganise and reuse existing facilities and services.
With the Residential One Planning Area Code:
Section 4.5.4, Part A – the height of the building, including the dome is not in keeping with the residential character of the area and would adversely effect the residential character of the neighbourhood;
Section 4.5.4, Part B – the set back of the proposed building did not maintain the residential character of the neighbourhood and/or achieve separation from neighbouring residential buildings;
The site coverage resulted in a built form which was bulky and visually obtrusive;
The development will adversely affect the amenity of the planning area and adjoining land uses including the built form and the likely demand for on street parking and traffic.
With the Cultural Heritage Significance Code:
Section 4.6.2 – the development will be incompatible with and not retain, be sympathetic to or respectful of the cultural heritage significance and streetscape values of the character precinct;
The development has not been designed and will not be constructed in a manner which protects the character values of the character precinct.
With the Demolition Code:
Section 4.6.3 – the development will not ensure the preservation of the existing building which forms an important part of the streetscape where the building and streetscape was constructed or established more than 50 years ago;
The development does not seek to retain a heritage building.
With the Development Near Major Transport Corridors and Facilities Code:
Section 4.8.1 – the development will not preserve the predominant views and vistas from the major transport corridor, used by the Kuranda Scenic Railway and other passenger rail transport.
With the Landscaping Code:
Section 4.8.4 - the proposed landscaping will not soften the visible bulk form of the development nor enhance its appearance from adjacent properties or retain or improve the streetscape to create an attractive centre environment;
Will not soften the built form of the development and enhance its appearance from within or without the site nor be a positive contribution to the streetscape;
Will not screen the buildings and structures from public places and residents.
With the Parking and Access Code:
Section 4.8.5 – insufficient parking places are provided to accommodate the type and amounts of traffic generated by the development and will necessitate significant off-site parking and vehicle movements unacceptably compromising traffic and pedestrian safety and efficiency in a residential area;
The development will require queuing and set down, special vehicle parking;
Insufficient area is provided for queuing and parking areas without obstruction to the free flow of traffic or pedestrians on site and off site.
Finally, the notice of appeal asserted:
There were no reasonable or relevant conditions that could be imposed to overcome the conflict with Cairns Plan.
In essence the appellants contend:
That the development approved (as now amended) is an overdevelopment of the land, too high, too bulky, cannot provide car parking for the likely use and cannot support adequate landscaping;
Involves removal of the existing building an important part of the streetscape which came into existence over 50 years ago;
Is not sympathetic to the cultural heritage significance and streetscape values in the character precinct of Dunn Street;
Will adversely affect the amenity of this residential area.
Codes
Section 1.5.4 of Cairns Plan explains the structure, purpose and application of the codes in the Plan. “The purpose statement in a code together with the Performance Criteria of the code represents the desired outcomes for the development of land requiring assessment against the requirements of the code--- performance criteria are expressions of the desired development outcomes for a particular area, land or development. Acceptable measures are means by which the performance criteria or part of a performance criteria may be demonstrated---assessable development must demonstrate that the performance criteria and the desired development outcomes expressed in that criteria can be achieved. The acceptable measures that are nominated in the code are one means by which it may be demonstrated that the desired outcomes may be achieved. Importantly the acceptable measures nominated in the code may represent measures that may not be appropriate once a considered assessment of the assessable development has been undertaken. Compliance with the acceptable measures nominated does not exempt the obligation to demonstrate how the performance criteria can be achieved”.
In applying the requirements of the codes:
“The requirements of the applicable planning area code are applied;
The requirements of the applicable overlay code are then applied. Where there is inconsistency between the planning area code and the overlay code the requirements of the overlay code apply;
The requirements of the applicable land use code are then applied”. Where there is an inconsistency between it and the abovementioned codes, the land use code applies (land use codes are not an issue in the appeal).
The requirements of the general codes are then applied. In the event of any inconsistency with a land use code, the land use code applies.
There were a number of objections to evidence by the appellants. They are set out in Exhibit 12.
To the extent the objections relate to witnesses and their written reports or statements expressing their view about a matter of law, their views have been ignored.
Regarding Mr Hartley’s evidence I consider some of the objections valid, some not. For those which are valid, the material objected to has been ignored. The objection to paragraph 5(f) – first and last paragraph, paragraph 5(j) – second paragraph and appendices 15 and 17, I do not consider valid. I received the evidence of Mr Coalfax and Mr Creer. Their evidence relating to their specialty confirmed the opinions Mr Hartley had formed about the house.
Regarding Mr Mohammed’s evidence: paragraphs 13 to 17; I do not regard paragraphs 13 and 14 objectionable. Paragraphs 15 to 17 are different. They played no part in the appeal. Paragraphs 18 and 19; these are innocuous. Paragraphs 20 to 25 and 27; these have played no part in the appeal. Paragraphs 30, 31, 32. Paragraph 32 has played no part in the appeal. I do not consider paragraphs 30 and 31 to be objectionable. However, they also played no part in the appeal. Paragraphs 88 to 100; the matter in these paragraphs illustrates the concern of Mr Mohammed as Imam to be a responsible and cooperative member of the community. Its only relevance is the extent to which it offers reassurance regarding amenity effects of the use. It has played little part in the appeal.
Grounds of Appeal
Conflict with the desired environmental outcomes in Cairns Plan
The desired environmental outcomes in Cairns Plan are described as the foundation of the plan relating to the whole of the city representing what is sought to be achieved by Cairns Plan.[7] As section 2.1.3 of IPA mandates, the provisions of Cairns Plan are directed towards achievement of the desired environmental outcomes. It is appropriate to deal first with the grounds of appeal which assert conflict with various parts of the plan.
[7] Clause 2.1.
Three town planning witnesses gave evidence; Mr Schomburgk, in the co-respondent’s case, Mr Jackson in the respondent’s case and Ms Huddy in the appellants’ case. Prior to the hearing they met in a conclave. A joint report eventuated.[8] Points of agreement were:
[8] Exhibit 24.
§ Issues of identity, character and residential amenity were relevant issues in the appeal;
§ The acceptable measure for building height is 7.5 metres. There are no acceptable measures provided for set back, site coverage, for character and design of development. Performance criteria require that set backs maintain the character and achieve separation from neighbouring buildings and road frontages;
§ Places of assembly ought not be located only in local centres and district centres but where appropriate in residential areas also, subject to satisfying amenity and other considerations
§ The height of the proposed building per se was not an important issue, but its appearance in its context was. It was only a part of the dome – an architectural feature required by the religious use – which exceeded the height limit;
§ From a town planning perspective the issues in dispute were the impacts on built form, character of the locality, onsite parking and traffic/parking in Dunn Street. Relevant to these issues was the design of the building and its setback from the front and side boundaries;
§ If the building were located closer to Dunn Street frontage, it would have a greater impact. Setting it back on the land as proposed, reduced the visual impact for passers by on Dunn Street.
Apart from these points, generally it may be said Ms Huddy disagreed with Mr Schomburgk and Mr Jackson, who agreed. I record that whilst not necessarily agreeing with everything in the evidence of Mr Schomburgk and Mr Jackson, I considered their analysis of town planning matters in this appeal preferable to that of Ms Huddy.
Residential One Planning Area Code (A Planning Area Code)
The purpose of the Code is to facilitate the achievement of the desired development outcomes set out viz: the predominant form of development is detached houses on single house lots, residential character and amenity is maintained and enhanced, scale and density of development is consistent with the existing form of development in established residential neighbourhoods, facilities which provide ancillary services to the local community are facilitated and uses identified as inconsistent uses in the assessment table for material change of use in the Planning Scheme are not established in the Planning Area. Performance Criteria for residential density requires population density not exceed 70 persons per hectare. Performance Criteria for built form requires: that the height of all buildings be in keeping with the residential character of the area and not adversely affect the amenity of residential neighbourhoods, that set backs maintain the character and achieve separation from neighbouring buildings and road frontages, that site coverage not result in buildings which are bulky or visually obtrusive. Performance Criteria for character requires that: development not adversely effect the amenity of the planning area and adjoining land uses; buildings are responsive to the natural features and constraints of the land and the tropical climate.
It may be accepted that the proposed building is considerably larger than the existing house. Yet it is no larger or higher than a dwelling which, absent the existing house, would be a code assessable construction. Its height is in keeping with the residential character of the area and the acceptable measures for the Performance Criteria for built form – 7.5 metres. Its footprint is no greater than some of the other development in the street and its height is about the same as a number of higher houses in the street. Its siting more towards the rear of the land, its style and its constructed parking area at the front of the land differ from the hypothetical code assessable dwelling I have referred to. Its construction (block walls or tilt construction concrete walls) will be different from the style of construction which primarily is sought to be achieved in the character precinct “high set dwellings dating from the 1920’s – an excellent example of dwellings well suited to the tropics”. The absence of windows in the sides and rear of the prayer hall as a means of addressing fire rating requirements is another contrary feature, although it is proposed to make it appear to the outside observer there are windows. Some features will reflect and complement character houses in the street e.g. the roof profile, wide eaves, window design (real and pretend), window hoods. Extensive landscaping has been proposed and is demonstrated in the evidence of Mr Prowse, an experienced landscape architect who gave evidence in the co-respondent’s case. Mr Prowse’s landscape plan became Exhibit 6. His evidence may be accepted. Challenges to it in cross examination were not supported by any evidence from suitably qualified persons. In the event the appeal is unsuccessful what he envisaged can be established and in time will considerably soften and break up visual impact of the building façade.
Ms Huddy was the only town planner whose evidence was opposed to the proposal. Her opinion was that the proposed development conflicted with several fundamental planning principles and with the planning scheme. As part of her assessment she broke Dunn Street up into two sections separated by the Gordon Street road reserve and focused on character/streetscape of Dunn Street north of the reserve. Mr Schomburgk and Mr Jackson considered the character/streetscape presented by Dunn Street included the whole of Dunn Street. I consider the approach of Mr Schomburgk and Mr Jackson correct. Whilst Ms Huddy’s approach may be perceived to lend more support to her opinion, it is the character/streetscape presented by the whole of Dunn Street, which in Cairns Plan is part of a character precinct, which is relevant.
Ms Huddy emphasised the height and bulk of the proposed building. She assigned a height of 8.5 metres including the dome which differed from the evidence of Mr Hartley, the person responsible for the design and the plans before the court. She emphasised the much larger area of the proposal in comparison to the existing house and the increase in the intensity of the use. In her report, Exhibit 19, she depicted the building in a way which accentuated its bulkiness but was misleading. She considered the character of the proposed building out of step with that of the streetscape, as detracting from the streetscape, that proposed landscaping would not act to break up the bulk and appearance of the building and that on site parking was inadequate. She considered traffic generation due to the proposal when complete, would be unacceptable. Mr Schomburgk and Mr Jackson offered contrary opinions.
The proposal results in some conflict with the Code. Whilst it will provide services to the community the use is such that the provision of the service includes a wider community than just the local community. Its construction style, absent landscaping, will result in a bulky building (the prayer hall) not responsive to the tropical climate. Its set back and provision of parking at the front of the block are different from other buildings in the street. There will be some impact on the amenity of the street.
Any development of any substance will affect existing amenity in one way or another. It is the inappropriate or unacceptable adverse effect in all the circumstance which concerns decision makers in town planning. In this case consideration needs to be given to the number of persons likely to attend at the mosque, the times and duration of attendance, generation of traffic and the development which, in its finished form, is to be established on the land. One matter may be addressed immediately. Use of the mosque will not generate unacceptable noise. It is used for prayer. Prayer sessions are 45-50 minutes, are led by the Imam and are, to anybody outside, silent. There is no amplified music, loud preaching or singing. Calls to prayer will not be amplified, but done quietly at the door of the mosque. Although there will be prayer sessions five times a day, seven days a week, the evident trend is that it is only the 1pm Friday session which attracts attendance by more than a few persons. The 1pm Friday session is a congregational prayer. It is the only one for which attendance at the mosque for able bodied males is obligatory. Woman may attend, but it is not obligatory.
The Cultural Heritage Significance Code (An Overlay Code)
The Code commences by identifying premises affected by it which it terms “Affected Premises” as “Heritage areas and places--- those parts of our natural or built environment which:
§ are important to the community because of their special aesthetic, architectural, cultural, historic, scientific, social or spiritual significance;
§ contribute to--- our sense of community as a community;
§ -------
Heritage areas and places--- are classified into three categories:
§ ------
§ ------
§ Character Precincts and are shown on the Cultural Heritage Areas Overlay”.
The purpose of the Code is to ensure particular development outcomes which are set out are achieved. “Sites of local cultural heritage significance are protected so that these sites are not changed in a manner that would significantly reduce the historic cultural heritage significance of the site; character precincts retain their cultural heritage significance and streetscape values and new works are sympathetic to and respectful to these values; development is compatible with and sympathetic to the cultural heritage significance and streetscape values of local sites and character precincts.
Cairns Plan unlike some other Planning Schemes does not especially define what is intended to be meant by streetscape. I consider that in its ordinary meaning it is the presentation offered by a street in its context by which I mean the buildings, other development, open space, vegetation etc, which may be reasonably be considered as framing it. In Prime Group Properties Limited v Brisbane City Council (1994) QPLR 153, Row DCJ applied a similar meaning to the word.
The land and/or house has no cultural heritage significance in itself. However since Dunn Street is part of a character precinct which also includes other streets in the area, performance criteria require development be designed and constructed in a manner which protects the character values of the character precinct. What then are the character values of Dunn Street?
In section 3.10.5 of Cairns Plan the character values of the character precinct are set out:
“This part of suburban Cairns predominately retains the character of high set dwellings dating from the 1920’s. Again while individual heritage value is limited they jointly present an excellent example of dwellings well suited to the tropics. Many have been restored and are well maintained. While they are not heavily shaded by large trees – such as in the outer suburbs – these dwellings display their regional characteristics to good effect”.
There was considerable discussion in the evidence about the streetscape character values of Dunn Street. Apart from the town planners who gave evidence, Mr McDonald, a registered architect with specialised experience in the conservation of historic buildings gave evidence in the case for the co-respondent and Mr Morton, an architectural draftsman/building designer and cultural heritage consultant gave evidence in the appellants’ case.
Mr McDonald and Mr Morton agreed[9] that the existing house on the land was built after World War II and was used predominately as a dwelling, that the site was not a local heritage nor a state heritage site, that the use of the site was not an architectural, heritage conservation, or character protection issue and that the relevant character values of the character precinct were set out in section 3.10.5 of Cairns Plan.
[9] Exhibit 23.
The existing house and the houses on each side of it do not reflect the character values set out above. They are not high set, they are not an example of dwellings well suited to the tropics, particularly the far north Queensland regions. They are a common design, a cheaper style of dwelling from the mid 20th Century which may be seen throughout Queensland. They are not excellent examples of any particular residential or architectural style. The subject house has not been restored nor maintained. It may also be said some of the other development in Dunn Street does not reflect those character values although development towards the ends of Dunn Street does.
Mr McDonald presented a thorough analysis of the street which is set out in Exhibit 14, his report which I accept. From his analysis the following may be concluded:
§ The age of buildings in Dunn Street varies considerably. The majority are probably over 50 years old, 25% to 35% being of younger vintage. 13 of the 23 were non-character buildings or were character building which had been unsympathetically altered in a way not readily reversible. The slight minority could be regarded as character buildings substantially intact, that is either altered sympathetically or if altered unsympathetically, the alterations were readily reversible. Two of the buildings, 23 Dunn Street and 27 Dunn Street, are duplexes, both probably less than 50 years old. 19 Dunn Street is a high set multiple dwelling block, probably built in the 1980’s. There was another block of flats at the southern end of Dunn Street, at its corner with Upward Street, probably built in the 1970’s. It was largely orientated with Dunn Street. However the southern boundary of the character precinct excluded it from the precinct.
Thus Dunn Street was “not a highly intact residential street of 50 year old or more buildings and--- not highly representative of the residential character values that give rise to the precincts inclusion in Cairns Plan”.[10]
I accept Mr McDonald’s assessment that Dunn Street adds only marginally to the character values of the character precinct of which it is a part.
[10] Exhibit 14, paragraph 3.8.
It was contended by the appellants that nonetheless the house is an integral part of the complete streetscape of Dunn Street, that to remove it and replace it with the proposed building would detract from the overall streetscape values of Dunn Street and hence the character precinct; that it was significant in streetscape terms and important to the character precinct that the house is one of a group of three or four houses in a row of similar style and probable vintage of 50 years or more, which are located roughly in the centre of Dunn Street, houses which were constructed at a later time than the highset houses towards each end of the street.
It is trite that to remove the house and replace it with the proposed buildings would alter the present streetscape. The question is to what extent, if any, would what is proposed defeat the purpose of the Code i.e. that “character precincts retain their cultural heritage significance and streetscape values and new works are sympathetic to and respectful to these values”.
I do not consider that the removal of the house would cut across the purpose of the Code. Because it is in excess of 50 years old does not on its own endow it with the character values of the character precinct. It simply does not have those values which the character precinct seeks to preserve.
As to its replacement with the proposed buildings the Performance Criteria in the Code require that development of premises in the Character Precinct be designed and constructed in a manner which protects the character value of the precinct. Acceptable measures include that:
§ Design and materials complement the character values of the precinct;
§ Design reflects and complements the form, bulk, height, scale, siting, orientation, roof profiles, materials and details of buildings and structures within the precinct without necessarily repeating those elements and details;
§ Development does not obscure the appearance or prominence of the main elements of the precinct when viewed from public rights of way and vistas of the precinct;
§ Development is sited so that is does not detract from or conflict with the character values of the precinct--- the set back of any new development from the street is compatible with the existing set back of other buildings or structures within the character precinct without necessarily repeating these elements and detailing.
The proposal results in some conflict with some of these acceptable measures. While in itself the building is no higher than highset houses in the street and the site coverage is no more than that of a code assessable dwelling house the construction with block walls or tilt construction concrete wall is at odds. That aspect of the design does not complement the character values of the precinct. Likewise, the absence of windows in the sides and rear of the prayer hall. To address this deficiency it is proposed to include the appearance of windows in these walls. Character features have been added; the roof profile, the wide eaves, the window design (real and pretend), window hoods. These features will reflect and complement character houses in the precinct. The front set back of the building is not compatible with other buildings in the street. On the other hand, setting it back from the street and establishing the landscaping proposed will reduce the impact of these differences.
There is thus some conflict with the purpose and performance criteria of the code. While elements of design have been added to endow the built form with features reflecting character values, material to be used in walls in combination with wall design, particularly of the main building, the prayer hall, is not complementary to the character values. Nor is the building siting with car parking to the front.
The Demolition Code
This code also commences by identifying premises affected by it which it terms “Affected Premises” as “Heritage Buildings” to be “retained by:
§ Minimising the loss of the distinctively tropical form and setting of pre World War II Cairns. The low set and high set ‘Queenslander’ houses are recognised as an endearing feature of the region---- ‘Queenslanders’ with the relatively steep pitched corrugated iron roofing, verandahs, lattice work, hooded windows and timber cladding are recognised as one of the State’s major icons. They add character to many of the mature streetscapes of urban Cairns and to such towns as Gordonvale and Babinda;
§ Providing a mechanism for the retention of multiple phases of Cairns architecture and dwellings by providing demolition controls that move with the passage of time. The control is set at 50 years prior to the current year--- so that provisions are made for the retention of aspects of Cairns development during that period for future generations---”.
The purpose of this code is to “minimise the loss of pre-World War II residential buildings (e.g. highset Queenslander homes) that gives much of Cairns its unique character, ensure the preservation of buildings where they form an important part of the streetscape where the buildings and streetscapes were constructed or established 50 years ago, ensure the retention of heritage buildings---”.
Performance Criteria P1 requires that “Heritage buildings are retained”.
I was provided with what I was informed was a copy of the draft amendments to the Cultural Heritage Significance Code and the Demolition Code. It became Exhibit 30. It appears Mr McDonald, who in his evidence considered the draft code, may have been supplied with a different version of the draft.[11]
[11] See paragraph 5.37 of his report, Exhibit 14.
In Exhibit 30, the draft code identifies premises affected by it as those in a character precinct identified by the respondent which contain characteristics of Cairns at certain stages of its development. It provides that the character of an area is determined to be a combination of buildings 50 years or older which together with their settings show a high level of ascetic and structural cohesion. “Buildings may not necessarily be considered to have individual heritage value, but do jointly contribute to exemplifying the characteristics of Cairns in an historical settings--- the retention and sensitive maintenance of these precincts will assist in conserving living examples of the earlier character of the city.”
Under the heading “Demolition or Removal Controls”, the draft code provides that character precincts are retained by “minimising the loss of the distinct form and setting of pre-World War II Cairns. The lowset and the highset Queenslander houses are recognised as an endearing feature of the region. The retention of such dwellings--- is considered important in ensuring Cairns and environs retains one of its major man made attributes:
§ Queenslanders with relatively steep pitched, corrugated iron roofing, verandahs, lattice work, hooded windows and timber cladding are recognised as one of the State’s major icons----;
§ Providing a mechanism for the retention of multiple stages of Cairns architecture and dwellings by providing demolition controls that move the passage of time. The control is set at 50 years prior to the current year----”
The purpose of the code is set out as “to ensure character precincts retain their cultural heritage and significance and streetscape values; and
§ Development is sympathetic to and respectful of the character and streetscape values through compatible form, scale, bulk, materials and detailing; and
§ Minimise the loss of pre-World War II buildings (e.g. highset Queenslander houses) that give much of Cairns its unique character; and
§ Ensure the preservation of buildings where they form an important part of the streetscape where the buildings and streetscape were constructed or established 50 years ago.”
Performance Criteria for new development includes:
§ development of premises within a character precinct must be designed and constructed in a manner which protects the character values of the precinct;
----
§ new fences compliment the character building and enhance the overall performance of the streetscape.
Performance Criteria for demolition or removal includes:
§ Buildings or structures within a character precinct are retained.
In both the existing code (Performance Criteria P1) and Exhibit 30 the acceptable measures are the same, namely “the building may be demolished or removed where the building:
(a) cannot be repaired (and this is supported by relevant engineering reports), and
(b) lacks the original character and form”.
I considered the evidence of Mr McDonald more objective and persuasive than that of Mr Morton and Ms Huddy. I do not consider the existing Demolition Code nor the provisions in the draft code mean that every dwelling in a character precinct is protected from demolition or removal unless it is demonstrated (supported by relevant engineering reports) that it cannot be repaired and that it lacks the original character and form. I consider it is necessary to focus on the purpose of the code, what it seeks to preserve and protect.
Demolition of the existing house and its replacement will of course alter the existing streetscape. But the existing house is not pre World War II. It is not a heritage building. It is not high set. It is not a “Queenslander” and I am not persuaded it is an important part of the streetscape of Dunn Street. To the contrary, I think the evidence shows it is not. To demolish it and replace it with a building which complements the character values of the character precinct will not diminish the precinct.
In Exhibit 30 (the draft code) performance criteria for demolition or removal purports to require that buildings or structures within a character precinct be retained. I would not give any weight to this. The code is not in force. Moreover, the seemingly absolute requirement of the performance criteria on its faces enlarges the purpose of the code beyond preservation of those buildings identified by the statement of purpose.
A deal of evidence addressed the question of the state of repair of the house and repair of it. What I have said above means the acceptable measure to Performance Criteria P1 of the code is not a relevant matter. However, I should address it.
To repair a thing is the process of restoring it to unimpaired condition by replacing or fixing damaged parts thereof.
The house in question in the opinion of Mr McDonald lacks its original character but not its original form. In his opinion the character could be retrieved so long as money was no object. Structural stability may required to be addressed.
Mr Hartley is a registered builder and licensed building designer of many years experience. He gave evidence in the case for the co-respondent. He was responsible for the design of the proposed buildings. He considered the house was originally owner built as an L shaped dwelling. An additional part was added to the front of the house at some later time. A consequence of that is a lack of adequate bearer support resulting in a cracked bearer. He detailed as well what he considered was required to restore the house to sound condition. This evidence was supported by Mr Colefax, a structural engineer and Mr Creer, a pest technician trading as Environsafe Pest Control.
The evidence does not support the view that the house cannot be restored if cost is no object. I accept the evidence of Mr Hartley, Mr Colefax and Mr Creer. Their examinations and conclusions were plainly more thorough than that of Mr Morton. The evidence from these witnesses established there was dry wood termite and dry rot in the building and it was likely there was more termite and/or dry rot damage in the building than had been found on non-intrusive investigation, further intrusive investigation was needed both internally and externally. Timber invaded by termites would need to be replaced. Investigation to date indicated a floor joist, at least two bearers and floorboards needed to be replaced. Guttering needed replacement, the roof needed replacing. The method of construction of the house meant that damaged floorboards could not be removed from under walls without removing the walls. Both Mr Hartley and Mr Colefax gave evidence that roof bearers were under size and considered any restoration of the house required their replacement. The skillion lean to would have to be removed and replaced. Bearer tie downs needed to be put in. There was no evidence of tie down from the bearers to the roof frame or of any other method to provide wind load uplift resistance. In the opinion of both Mr Colefax and Mr Hartley the cost of investigation and repair on any commercial basis was uneconomical. It would be far cheaper to build the house again.
Mr Haynes, the owner of 35 Dunn Street, gave evidence. Mr Haynes according to his evidence is a trades assistant and fisherman. He described himself as also being in the plumbing game. Mr Haynes purchased number 35 Dunn Street in January 2004 and renovated it. He said it was a similar house to 31 Dunn Street. It was the second house he had renovated. I gather he does the renovations himself, although he employed a pest technician to deal with termites. He said 35 Dunn Street had dry wood termites when he purchased it. He replaced a floor joist with an RS steel beam and six floorboards. To do that he took the internal walls out and rebuilt them after replacing the joist and damaged floorboards. He said it was not difficult or expensive. Mr Haynes was a submitter opposed to the proposal under appeal. His submission revealed that one of his concerns underlying his objection was diminution of property values. He had improved number 35 Dunn Street by including a large rear deck with sail at considerable cost. He was also concerned with height of the proposed building and effect on his view from his rear deck.
Mr Haynes evidence, although it did not extend to particulars of costs, suggested that it would not be terribly expensive to repair number 31 Dunn Street. Apart from pest treatment, Mr Haynes’ opinion appears to be based on using his own experience and skill to do required repairs himself, avoiding the additional, often considerable cost of expert labour.
On a literal reading the acceptable measure for demolishing is stringent. Not only must an engineer support the building cannot (my underlining) be repaired, but the building must lack the original character and form. Here a structural engineer, Mr Colefax gave evidence the house was deteriorated, in poor condition and compromised structurally. Even as newly constructed it would fall short of current engineering codes of practice. It was compromised beyond economical repair.
A sensible application of the code I think requires regard be had to its applicability and purpose and to the cost of repair. Different emphasis may be required in the case of an excellent example of a character house compared to a marginal example. Reference to character and form in the acceptable measure applied to the performance criteria requiring retention of heritage buildings reinforces that it is concerned with those buildings identified in the code as important. Not all buildings in a character precinct may necessarily come within that description. Dunn Street is a good example.
The Parking and Access Code (A General Code)
The purposes of this code include:
Parking for passenger vehicles, buses, commercial vehicles and bicycles is provided to service demand generated by the development, accessible and convenient onsite parking is provided, in particular, short term parking with comparable amenity to on street parking.
Performance Criteria P1 requires that sufficient parking places are provided on site to accommodate the amount and type of vehicle traffic generated by the development of the site having regard to, inter alia, the desired character of the area in which the premises is located, the nature and scale of the development. An acceptable measure is that the minimum number of parking spaces and bicycle parking places provided on the site is not less than one space per 15 metres squared of nett lettable area.
The proposed development achieves the acceptable measure.
What amount and type of vehicle traffic is likely to be generated by the development?
While prayer sessions occur five times a day, seven days a week, on current attendance at the Mosque, the Friday 1pm prayer session is the only occasion when any vehicles may need to park outside the land. This is already occurring. Ms Huddy went to the trouble of taking a number of photographs when the Friday 1pm prayer meeting was occurring.
Mr Mohammed, the Imam has hopes to increase attendance at prayer sessions. If in time his hopes come to fruition, there may be occasions probably only at the Friday 1pm prayer session, when perhaps 29 motor vehicles may have to park outside the confines of the land for about an hour. I have taken that number as a worse case scenario having regard to the capacity of the prayer hall and one male person per vehicle.
Ms Huddy referred to section 1.5.4 of Cairns Plan. She expressed the view that the acceptable measure nominated in the code was not appropriate once a considered assessment of the assessable development was undertaken. Compliance with the acceptable measures did not “exempt the obligation to demonstrate how the performance criteria can be achieved.”
The 11 parking places and 1 bicycle parking place required according to the acceptable measure will not fully address the performance criteria if that is taken to mean that every attendee at an hourly prayer meeting must have a parking space provided on site. This is likely to occur occasionally, probably only the Friday 1pm prayer session for about say, 1 hour, that is, an hour a week. The reality I think is that it will continue to be the Friday 1pm session which will draw more than only a few attendees. Whilst the numbers for Friday 1pm prayer meetings may increase in line with Mr Mohammed’s hopes, the capacity of the building is a limiting factor. Having regard to the nature of the proposed use and the scale of the proposed development together with the character of the area, I would regard the achievement of the acceptable measure as sufficient.
The Landscaping Code (A General Code)
The purpose of this Code is to ensure a high standard of landscaping is achieved in order to inter alia retain, promote and enhance the tropical character of Cairns, enhance the amenity of urban areas and create attractive streetscapes and public places.
Performance Criteria P1 requires landscaping be used to promote Cairns tropical climate and character, soften the bulk form of development and enhance its appearance, retain and improve streetscapes, create an attractive centre environment, enhance the appearance of the development from within and outside the development and make a positive contribution to the streetscape, screen the view of buildings from public places, residences and other sensitive developments, contribute to a comfortable living environment and improve energy efficiency by providing shade to reduce glare and heat absorption and radiation from buildings, parking areas and other hard surfaces. Acceptable measures require an approved landscape plan and landscaping and maintenance of landscaping carried out in accordance with the plan.
I have already touched upon landscaping. As indicated, I accept the evidence of Mr Prowse. Whilst some challenge was made to him in cross-examination, his evidence was uncontradicted by any evidence from a suitably experienced or qualified person. Exhibit 6 contained an indicative landscape plan prepared by him. I am satisfied that the sort of planting indicated therein conditioned to achieve the screening effect envisaged at the earliest practicable time and its ongoing maintenance will screen, break and soften the appearance of the proposed building and will achieve the purposes of the code.
The Development Near Transport Corridors and Facilities Code (A General Code)
The purpose of this Code is to “ensure that development does not compromise the safety and efficiency of major transport corridors and facilities”. It applies to assessable development on land within 200 metres of an existing or future major transport corridor.
The ground of appeal focussed on one of the Performance Criteria for visual amenity “Predominant views and vistas from major transport corridors are preserved”. Acceptable measures are that development is designed to preserve and complement the views and vistas from the corridor.
This ground was not seriously pursued. The evidence does not support that the proposed development will interfere with the predominant views and vistas from the Kuranda Scenic Railway. Any views from a moving train will be transient and will be of a building of similar height and bulk to others in Dunn Street with a similar roof profile, wide eaves, hooded windows, surrounded and softened by attractive planting. It will not detract from the view of Dunn Street.
The Desired Environmental Outcomes (DEOs)
Of those referred to in the notice of appeal only:
§ 2.4.4 – to respect and be compatible with the identity recognisable character, high level of residential amenity and connectivity of the locality;
§ 2.4.5 – to seek to re-organise and reuse existing facilites and
§ 2.4.1; to retain examples of historical and current exemplary tropical styles to demonstrate the evolution of the built environment throughout Cairns
require mention.
DEO 2.4.1
As I have already said the existing house is not an example of any exemplary tropical style at any time within the last 100 years. As is apparent in the discussion above, the Codes do not mandate or support its retention.
DEO 2.4.5
This DEO also on closer consideration does not call up conflict between the proposal and the DEO. The Code applicable to removal of the existing building does not prohibit or discourage its removal.
DEO 2.4.4
Aspects of the proposal may present as in conflict with the DEO’s reference to respecting and being compatible with the identity, recognisable character and the level of residential amenity of Dunn Street. The extent to which there is any conflict is highlighted in the discussion regarding the planning area code and the cultural heritage and demolition code.
The Decision
Section 3.5.14(2) IPA requires that the decision about the proposal must not:
“(a) compromise the achievement of the Desired Environmental Outcomes for the planning scheme area; or
(b) conflict with the planning scheme unless there are sufficient grounds to justify the decision, despite the conflict.”
The “grounds” referred to in subparagraph (b) are defined to mean matters of public interest. They do not include the personal circumstances of an applicant, owner or interested party.[12]
[12] Schedule 10, Dictionary Integrated Planning Act 1997 (Qld).
I do not consider what is proposed will compromise the achievement of the Desired Environmental Outcomes in Cairns Plan.[13] There is however some conflict with the planning scheme which I have identified above.
[13]Koerner & Ors v Maroochy Shire Council & Ors (2004) QPELR 211.
In Weightman v Gold Coast City Council (2002) 121 LGERA 161 the Court of Appeal analysed the application of section 4.4(1)(5A) of the Local Government (Planning and Environment) Act 1990. Section 3.5.14(2)(b) of IPA is in similar terms. “Grounds” has replaced “planning grounds” in section 3.5.14(2)(b). Adapted to the section in its present form, firstly the nature and extent of any conflict should be determined. Secondly, there is required a determination whether there are any matters of public interest which are relevant to the aspects of the proposal in conflict with the planning scheme and whether the conflict can be justified on those grounds. Thirdly there is required a determination whether those matters of public interest in favour of the proposal are, on balance, sufficient to justify approving the application notwithstanding a conflict.
In Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157 Muir JA, with whom the other members of the Court of Appeal agreed, described the process (adapted to the terms of section 3.5.14(2)(b) of IPA) as identifying the grounds which may justify approval, assessment of the role and importance to the planning scheme of the provisions which would be infringed should the proposal be approved, the adverse consequences, if any, which might flow from such infringement and the competing merits and weight of the grounds relied on to justify approval.
There are two potential areas of conflict. They arise out of what is proposed to be erected on the land, more precisely, aspects of the design of the building, the siting of the building on the land and the effect on amenity.
There are relevant matters of public interest. Persons who chose the Muslim faith and its mode of religious worship are a part of the public. Places of worship may be established in residential areas. Freedom of religious worship is a part of the fabric of the Australian community. It is in the public interest that persons who choose that faith, just as those who chose any other faith, have access to a safe and reasonably comfortable place of gathering and worship. The Mosque in Dunn Street is the only Mosque between Townsville and Mareeba.
The method of construction, particularly of the prayer hall and the siting of the built form further back on the land than other buildings in the street, may be considered the most emphatic of the conflicts with the purpose and performance criteria for the character precinct. If that were all there was for consideration, the public interest in having places of worship for members of a faith to worship in, may be thought to be more finely balanced.
However the proposal should be considered in its entirety.
The building could be moved to the front of the site with parking at the rear. That would make the location of the building on the land, similar to other buildings in the street. As Mr Schomburgk explained in his evidence, providing the parking spaces required by the parking code on site, at the rear of the building, was less practicable than at the front where users could readily see them from the street. Locating the building further back on the block meant the building itself would have less impact to the street.
Extensive landscaping as proposed, will soften and break up the building façade and the parking area in front of the buildings. This is an important matter and establishment and maintenance is essential. It should be conditioned to require plantings of stock as advanced as available, fertilising, maintenance and watering to achieve the purpose of the landscaping in the shortest possible time. Unlike the previous approval in December 2000 it should be enforced.
I have considered the lack of real windows in the sides and rear of the prayer hall. Windows, similar in design to those on the front of the building would contribute to breaking up the starkness of these walls. I understand that to install them will require a sprinkler system to comply with fire regulations and the applicant does not need windows in the prayer hall. The matter was not addressed in any detail in the evidence.
That aside, I consider the window treatment to the sides of the prayer hall falls short. The point of providing windows, or pretend windows is to address the character requirements of the design of the building located as it is, in the character precinct. It would have been preferable to have actual windows, however I would not go so far. Having said that, two pretend windows in each side of the prayer hall are inadequate for their purpose. There should be at least 3 of these hooded windows in each side of the prayer hall of similar dimension and design to those shown in Exhibit 5. This should be conditioned.
I have already indicated that I consider achievement of the acceptable measure in the parking code, satisfies the purpose of the code when regard is had to the likely extent in terms of numbers of vehicles and times of use.
Fencing at the Dunn Street boundary is another matter to be conditioned. It should reflect the character of the character precinct. The style of timber paling, fencing in the perspective drawing,[14] appears attractive. Mr McDonalds report[15] contains photographs of the front of all the buildings in the street. Some houses have no fence. Some have wire. Other have palings in different configurations. There is no dominant style. While not wishing at this point to restrict the parties, I would comment that an attractive timber paling fence would appear to best reflect the character precinct.
[14] Exhibit 7.
[15] Exhibit 14.
When all matters are considered and balanced, and subject to alteration to window treatment, I consider there are matters of public interest which on balance justify approval of the proposal as amended. I am satisfied the co-respondent has established the appeal should be dismissed.
The appeal will be dismissed. Before the order is made, conditions of approval will need to reflect what I have said in these reasons. The appeal will be adjourned for this purpose to be relisted on notice to all parties when conditions are settled or failing settlement, for determination.
3
3
1