Greek Orthodox Community of St George Brisbane v Brisbane City Council
[2011] QPEC 139
•16 November, 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Greek Orthodox Community of St George Brisbane v Brisbane City Council & Others [2011] QPEC 139
PARTIES:
GREEK ORTHODOX COMMUNITY OF ST GEORGE BRISBANE
(Appellant)and
BRISBANE CITY COUNCIL
(Respondent)and
VALERIE R DENNIS
NATIONAL TRUST OF QUEENSLAND
(Respondent by Election)and
TONY PHILBRICK and MARY-ANNE PHILBRICK
(Co-Respondent by Election)FILE NO/S:
BD 4018 of 2010
DIVISION:
Planning & Environment
PROCEEDING:
Determination of preliminary point in appeal
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
16 November, 2011
DELIVERED AT:
Townsville
HEARING DATE:
25 October 2011
JUDGE:
Durward SC DCJ
ORDERS:
The preliminary point is determined as follows:
1. In the circumstances of this appeal, the Demolition Code of Brisbane City Plan 2000 does not apply in the assessment of the development application the subject of the appeal.
CATCHWORDS:
PLANNING & ENVIRONMENT – APPEAL – DEMOLITION WORK – application for building work and to demolish pre-1900 local heritage place residence – impact assessable under Brisbane City Plan 2000.
PLANNING & ENVIRONMENT – PLANNING SCHEME - CODES – STATUTORY CONSTRUCTION – construction of planning scheme - analysis of manner in which codes in Brisbane City Plan 2000 may be applicable to development applications.
PLANNING & ENVIRONMENT – APPEAL –DETERMINATION OF PRELIMINARY ISSUE – whether the Demolition Code of Brisbane City Plan 2000 does or does not apply in the assessment of the development application the subject of the appeal.
LEGISLATION:
PLANNING SCHEME:
Sustainable Planning Act 2009 ss 80 and 314.
Brisbane City Plan 2000
CASES:
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] 194 CLR 355; WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 54; [2010] QCA 126.
COUNSEL:
C.L. Hughes SC and Ms N. Kefford for the appellant
T. Trotter for the respondentSOLICITORS:
Amarandos & Company for the appellant
Brisbane City Legal Practice for the respondent
On 20 December 2010 the respondent refused an application for a Development Permit for building work on a Local Heritage Place and demolition of a Local Heritage Place on land at 27 Edmonstone Street, South Brisbane (Lot 208 on B3137 and Lot 1 on RP52694, County of Stanley, Parish of South Brisbane), the building work and demolition being in respect of a building called “Belvedere” (“the house”).
The Development Application was subject to impact assessment which, under s 314 (2) (i) of the Sustainable Planning Act 2009 requires assessment against the Brisbane City Plan 2000 (“city plan”), to the extent the city plan is relevant to the development.
Preliminary issue
A preliminary issue has arisen in the appeal about “whether, in the circumstances of this appeal, the Demolition Code of City Plan 2000 applies in the assessment of the development application the subject of the appeal” (Order of Everson DCJ 12 August 2011).
In other words, is the Demolition Code in the city plan relevant to the development such that it is to be referred to in the assessment? The appellant says that it is; the respondent says it is not. The respondent says that the Heritage Place Code is the only applicable Code.
Background: Impact Assessable development
There are a number of matters that are agreed, or at least are not contentious between the parties: the application was ‘impact assessable generally inappropriate’; the house was built in about 1880; the land is not within a Demolition Control Precinct; the house and land have been a Heritage Place under the city plan since about 2002; the house and land was in the Low-Medium Density Residential Area at the time the application was made on 04 October, 2010, but is now in the Medium Density Residential Area (although nothing turns on that); the house and land is subject to the provisions of the West End/Woolloongabba District Local Plan (but it is not relevant to the assessment process in this case).
The application must be assessed against the common material and the city plan as a whole, including relevant codes: SPA s 314 (2) (a) and (3) (a). The common material includes the information about the current physical state of the building (but see infra in respect of the relevance of factual matters on the hearing of the preliminary issue).
No reference was made to the Demolition Code in the assessment of the Development Application by the respondent.
Factual matters
The appellant has filed a number of expert reports for the appeal. However, in the determination of the preliminary point the factual substance of the reports is not a relevant consideration. It may, of course, be relevant in the appeal. I will refer to a number of the matters asserted in the reports simply to give some context to the appellant’s submission that the Demolition Code applies in the circumstances of this case, and for no other reason.
Those assertions, so far as context is concerned, are that the house is arguably no longer structurally sound and is arguably not reasonably capable of structural repair (engineering structural report by Mr Robert Morgan); the house is contended by the appellant to have no heritage significance, to be in a very dilapidated condition, its removal will be of no detriment to the area or the area’s cultural significance, it is not suitable for occupation, has been neglected for many years, has been reconstructed over the years and it is no longer representative of the original structure (heritage architect report by Mr Robert Veal); and that the house arguably does not satisfy the respondent’s own criteria for entry in its Heritage Register (report by Ms Helen Gregory, social historian and cultural heritage adviser).
The respondent may agree with or challenge those assertions on the appeal, but was not required to do so for the purpose of the determination of the preliminary point.
Legislation
The relevant provisions in the Sustainable Planning Act 2009 (“SPA”) are:
“314Impact assessment – generally
(1) this section applies to any part of the application requiring impact assessment.
(2) The assessment manager must assess the part of the application against each of the following matters or things to the extent the matter or thing is relevant to the development –
…
(i) a planning scheme;
…
(3) In addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess the part of the application having regard to the following –
(a) the common material …”
A planning scheme is a ‘statutory instrument’: s 80 SPA.
The city plan
The relevant provisions of the city plan are as follows:
“2.3Exempt development
Where development is identified as exempt it:
· requires no application
· need not comply with the codes or other requirements of the Plan.
Development that is exempt development for the purposes of the Plan is identified below …”
“Exempt development identified by the Plan
Despite anything to the contrary in the Plan, the following is exempt development:
· demolishing or removing a building where:
- not on a site listed on the Heritage Register
- not on a site in the Demolition Control Precinct”.
Assessment process
Chapter 3 of the City Plan identifies “General Assessment Processes” that will affect the regulation of development. Hence it addresses Self Assessable, Code Assessable, Impact Assessable and Exempt, development.
Ø For self assessable development the code is the Acceptable Solutions. The ‘primary’ Code applying to the development is indicated in the ‘level of assessment tables’. No other Codes from Ch 5 will apply to self assessable development.
Ø For Code Assessment the code is the Purpose, the Performance Criteria and the Acceptable Solutions. The ‘primary’ Code applying to the Development is indicated in the ‘level of assessment tables’. That ‘primary’ Code may refer to other ‘secondary’ Codes and provisions that are to be interpreted as part of the ‘primary’ Code.
Ø These Codes will also be considered for Impact Assessment where relevant.”
The assessment process, so far as is relevant, is described as follows:
“2.5 Assessable development
Assessable development is identified by Schedule 8 of the Act and the level of assessment tables for each Area. If the land is within a Local Plan, the Local Plan may modify the level of assessment, and the level of assessment prescribed in the Local Plan prevails.
Where development is identified as assessable it can be subject to code assessment or impact assessment.
In approving assessable development, conditions of approval may be placed on the proposal to:
· ensure compliance with a Code requirement or provision.
· mitigate impacts.”
Impact assessment
The assessment process, so far as is relevant, refers to impact assessment in the following terms:
“2.5.2 Impact Assessment
Development is subject to Impact Assessment:
…
· is assessed against the whole planning scheme, including relevant Codes in Chapter 5, and any relevant Local Plan Code in Chapter 4. Whether or not the level of assessment is varied by a Local Plan, impact assessable development within a Local Plan area will automatically be subject to the relevant parts of the Local Plan Code
…
Generally appropriate impact assessable development
The ‘level of assessment tables’ for each Area identify the generally appropriate impact assessable development for which adverse impacts are usually able to be mitigated. Only where those impacts are effectively mitigated will the proposal be approved. A Code may be identified against which such a proposal would be assessed to determine its appropriateness. In these cases the proposal is assessed against the whole of the planning scheme, including the relevant Code…
…
Where there is no specific Code against which to assess the proposal, the assessment process for generally inappropriate impact assessable development outlined below will apply.
Generally inappropriate impact assessable development
Other impact assessable development under this heading is not specifically envisaged in the Area. The appropriateness of a proposal in any particular circumstance will be dependant on its location, design and impacts.”
Codes and Related Provisions:
Codes are listed alphabetically in Chapter 5 Section 1.1.3. Each Code states, in the section called “Application” what development it applies to.
“1.1How to use the Codes
Codes may be used in either self assessment, code assessment, or impact assessment. The level of assessment table in Chapter 3 determines the level of assessment that applies to development in different Areas. …
A ‘primary’ Code is a Code listed as an Applicable or Relevant Code in the level of assessment table.
A ‘secondary’ Code is a Code called up in a ‘primary’ Code.
In cases where no specific Relevant Codes are identified in the level of assessment table for impact assessable development the Application section at the front of the Code provides a useful guide to the circumstances in which the Code is likely to be considered in assessing an application.
…
1.1.3Using the Codes in impact assessment
…
The ‘primary’ Codes are highlighted in the Level of Assessment table. Each of these ‘primary’ codes may also list other Relevant ‘secondary’ Codes that are likely to be considered to be part of the ‘primary’ Code. In both of these circumstances the Code is to be read as being the Purpose, Performance Criteria and Acceptable Solutions.
…
In cases where no specific Relevant Codes are identified in the Level of Assessment table for impact assessable development, the summary table in Section 1.3 of this Chapter provides a guide to the range of Codes that are likely to be considered in assessing the application.
…
1.3Summary: What development each Code applies to
This summary is intended to assist applicants in determining which Codes are applicable to a particular development proposal. Each Code should be referred to in determining a full description of the circumstances in which each Code applies.”
In the Low-Medium Density Residential Area the level of assessment is provided in s 5.4.3, which refers simply to the provisions in s 5.2.3, which are as follows:
“5.2.3 Level of assessment – Low Density Residential Area, Character Residential Area and Low-medium Density Residential Area.
Please note that:
·this table should be read in conjunction with section 2 General Assessment Processes.”
In the level of assessment table for Impact Assessment under s 5.2.3, generally inappropriate development and Relevant Codes are described as follow:
“1.Demolition or removal of a Heritage Place or within a Heritage Precinct”
and
“Heritage Place Code”
…
“6. Any other material change of use” – (there is no Relevant Code listed)
In the table the two Codes referred to, so far is as relevant, as follows:
Code
Generally applies to
Particular location or circumstance
Demolition
Building work for the demolition, partial demolition, removal or repositioning of a building except minor demolition work.
On a site in the Demolition Control Precinct where any part of the building was constructed in or prior to 1946
OR
A Commercial Character Building
OR
A Registered Boarding House where located in the Emerging Community Area, the Residential Areas or a Multi-purpose Centre or a Special Purpose Centre
OR
On a site where demolition is assessable against this Code under a Local Plan
Heritage Place
Building work (including demolition) reconfiguring a lot or operational work
On a premises that includes a heritage place or is part of a heritage precinct or on a premises adjoining a heritage place or a heritage precinct.
Demolition Code
The “Application” section at the commencement of the Demolition Code, now provides as follows:
“1. Application
This Code will apply in assessing building work for the demolition, partial demolition, removal or repositioning of a building …:
· where the building was substantially erected prior to 1 January 1900.”
The above bullet point provision appears after the amendment of the city plan on 1 January 2007. It did not appear in the Demolition Code prior to that date.
The “Purpose” of the Code relevantly provides as follows:
“3. Purpose
The purpose of this Code is to:
· allow demolition or removal of post-1946 residential buildings or structurally unsound buildings”.
The above bullet point provision appears in the Demolition Code both prior to and after the amendments to the city plan on 1 January 2007.
The Performance Criteria and Acceptable Solutions, so far as is relevant, provide the following, with respect to “a building built prior to 1900”:
Performance Criteria “P7 The building must not be capable of structural repair
and
Acceptable Solution “A7.1 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound.”
Those provisions appear in the Demolition Code both prior to and after the amendments to the city plan on 1 January 2007.
Heritage Place Code
The “Application” section of the Code refers, so far as is relevant, to the following:
“1. Application
This Code will apply in assessing building work (including demolition), reconfiguring a lot or operational work …:
· on a premises that includes a heritage place”;
With respect to building work, the Code relevantly provides:
“1.2 Building work, including demolition, operational work, or sub-division on the site of a heritage place or within a heritage precinct is subject to impact assessment where it involves:
· partial or total demolition or removal of a heritage place or component in a heritage precinct.”
Building work may also be Code Assessable, depending on the circumstances. There are no Performance Criteria or Acceptable Solutions relevant to demolition work in this Code.
Submissions of Counsel
The appellant submitted that the Demolition Code prima facie applies to this development: that is, to all buildings substantially erected prior to 01 January 1900 and includes, as one of its purposes, to “allow demolition or removal of … structurally unsound buildings.”
The appellant in truth relies on the language of the Demolition Code, namely: “where the building was substantially erected prior to 1 January 1900” it applies in assessing building work for demolition of a building. The appellant characterised those words as stating a “specific purpose”, subject to the implication that the demolition work is in respect of structurally unsound buildings.
The appellant also referred to a distinguishing feature between the Demolition Code (which provides Performance Criteria and Acceptable Solutions) and the Heritage Place Code (which does not).
It was submitted for the appellant that the application of the Demolition Code is contemplated by the express words used in the “Application” section of the Demolition Code, namely: “this Code will apply in assessing building work for the demolition … of a building … where the building was substantially erected prior to 01 January 1900”; dealt specifically with that circumstance in P7 and A7.1; in the “purpose section”, referred specifically to the demolition of structurally unsound buildings; and that the express words in the “application section” “where the building was substantially erected prior to 01 January 1900” were inserted as recently as 01 January 2007. That amendment was said to reinforce the application of the Demolition Code in circumstances such as those in this appeal.
Mr Hughes SC in his oral submissions said that the only inference that could be drawn from the amendment on 01 January 2007 was that the legislature sought to ensure that the demolition Code did apply in circumstances where the subject building was substantially erected prior to 1 January 1900.
He submitted that whilst the Demolition Code is not listed as a Relevant Code in the level of assessment table, the table was to be read in conjunction with Section 2 - General Assessment Processes; and Chapter 5 - Codes and Related Provisions, where reference is made to “primary” codes (in this case, the Heritage Place Code). “Secondary” codes are those called up in a “primary” code and are read as part of the “primary” code. As I understood Mr Hughes SC, the Demolition Code was called up, in effect, by its express purpose with regard to structurally unsound buildings built before 1 January 1900.
Mr Hughes SC said in oral submissions that with respect to self-assessable development no exclusionary words were used, such as “No other codes from Chapter 5 will apply to self-assessable development”, the implication being that in the absence of words such as those in respect of any of the three ways of assessment it could not be said that the Demolition code was excluded in this case.
Mr Trotter referred to the structure of the city plan: if one worked through its structure, the introductory or ‘Application’ section of the Demolition Code, for example, was not reached because it was unnecessary to consider it upon a proper construction of the structured provisions of the city plan.
He submitted that the level of assessment table for the Low-medium Density Residential Area (and the Medium Density Residential Area for that matter), provides that ‘impact assessment generally inappropriate’ applies; the relevant code is the Heritage Place Code; and assessment is against the whole planning scheme, including relevant codes: Chapter 3, section 2. The relevant code was the code identified or nominated, namely the Heritage Place Code.
In Chapter 5, section 1.1.3 of the City Plan, the level of assessment tables identify specified codes as being relevant codes for impact assessment. The Demolition Code and the Heritage Place Code are identified, among about 20 other codes. However, the Demolition Code is not identified as a relevant code for the subject development in the applicable level of assessment table.
Mr Trotter referred in some detail to the table of assessment for other areas under the city plan (fifteen Areas were specifically listed in his written submission) to demonstrate that references in the table for applicable codes are quite specific and that where the Demolition Code is referred to, it is specified in either a limited sense (for example, Environmental Protection Area), or it is specified, inferentially, as applying without limitation (for example, Demolition Control Precincts) or it is not specifically listed in some areas (for example Light Industry Area). In that context, he contended that if the Demolition Code is not referred to in the Table of Assessment, it is not applicable.
He submitted that the Heritage Place Code does not call up the Demolition Code as a secondary code and that the application section of the Demolition Code has no operation in this case.
Chapter 3, section 2 (dot-point 3) relevantly provides that the demolition of a building not on a site listed in the Heritage Register is exempt development and requires no application and need not comply, inter alia, with the codes. Hence Mr Trotter, by way of analogy, submitted that demolition of a building could occur without reference to any code: that is, the mere fact that building work involves demolition does not necessarily mean that it is to be assessed against the Demolition Code.
Mr Trotter submitted that upon a proper sequential analysis of the city plan, the Demolition Code simply did not apply to the Development Application in this case despite the fact that the appellant would have preferred (impliedly for forensic reasons) that it did apply.
Mr Hughes SC also raised a construction point, albeit one that I cannot conceive would warrant the descriptor of a ‘primary submission’, namely that the use of a lower case ‘r’ or upper case ‘R’ for the word ‘relevant’ or ‘Relevant’ respectively when used with the word ‘Code’, implied a different construction: that is, a colloquial sense of the word in respect of lower case ‘r’ and, as I understand the submission, a definitional sense of the word in respect of upper case ‘R’.
Hence his submission is, as I understand it, that reference to a ‘relevant Code’ admits of the inclusion of any Code that refers to demolition work – specifically demolition of structurally unsound buildings – in the assessment criteria, whilst reference to a ‘Relevant Code’ is more specific in the sense of a definitional meaning.
It follows that in his submission the Demolition Code is characterised as a ‘relevant Code’ in the city plan and applies to demolition work in the circumstances of this case.
He also referred to statutory interpretation principles in support of his construction of the city plan and cited Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] 194 CLR 355 at paragraphs 69 -71 of the majority judgment. Mr Trotter’s submission was that the meaning of the relevant provision was clear and that there was no conflict that called for any application of the rule stated in that case.
Finally, for the appellant it was submitted that the respondent’s contention ‘that the Demolition Code “in its own planning scheme” did not apply’ to the development, was ‘counter intuitive’.
Discussion
I do not think there is any need to apply the rule of construction advocated by Mr Hughes SC to determine the meaning of the relevant provisions of the city plan. I agree with Mr Trotter’s submission. The language in the city plan is clear and unambiguous. There is no conflict in the provisions if they are considered in a logical and sequential manner. The approach to construction by Mr Hughes was strained. It was, with respect, an analysis that contrived to arrive at a pre-determined destination, rather than an analysis that followed a logical pathway to arrive at a destination per se.
I do not consider that exclusionary words are required in the context of the city plan in order to apply a specific Code to particular type of development. Insofar as self-assessable development – the example used by Mr Hughes SC in his submission – is concerned, exclusionary words would be superfluous. If codes applied the development would be code-assessable. Exclusionary words are not necessary in code assessable development or impact assessable development because primary codes that apply are specified. Secondary codes may be nominated or identified, that is ‘called up’.
Mr Hughes SC also referred to the absence of an expression such as “only in cases where…” in the part of the city plan dealing with Codes and level of assessment tables, in the context, as I understand the submission, that such words were necessary to remove any doubt as to which Codes applied. I do not agree. The relevant sections of the city plan are clear enough. Such words would be superfluous.
The relevant amendment to the city plan, which was discussed by counsel in submissions, is explained by the Respondent in a published document titled ‘Amendments 2007’ and called ‘update 12’, in the following way:
“Demolition Code:
o Additional text in the Application and Purpose of this code clarifying what is meant by pre-1946”.
There are two amendments comprising additional dot-points, one in the ‘Application’ section and one in the ‘Purpose’ section. The additional dot-point in the ‘Application’ section was referred to by counsel and I have referred to it in this judgment; the other, in the ‘Purpose’ section was not. It is expressed as follows:
“ensure the contribution of houses constructed prior to the end of 1946 that reflect design styles and materials other than ‘timber and tin’ architecture is recognised and retained in the Low Density Residential Area and Character Residential Area.”
I do not agree with the construction contended for by Mr Hughes SC. The amendment in the ‘Application’ section does not add further scope to the application of the Code. It merely clarifies the meaning of the existing reference to pre-1946 buildings, as does the amendment in the ‘Purpose’ section, albeit in another context.
In any event, the ‘Application’ section at the beginning of the Demolition Code is a ‘guide’ to the circumstances in which that Code is likely to be considered in assessing an application, where no specific Relevant Codes are identified in the level of assessment table for Impact Assessable Development. For example, in the level of assessment table where there is no code listed for “Any other material change of use”, one may then go to the ‘Application’ section of a relevant Code. However, in this case the Heritage Place Code is specified and it does not call up the Demolition Code.
Hence the ‘Application’ section is not relevant. I agree with Mr Trotter’s submission that in such circumstance the ‘Application’ section is not reached: it is not relevant in the assessment process.
In the city plan, in the level of assessment table for Impact Assessment under section 5.2.3, there is a heading in the right hand column: ‘Relevant Codes’; in the ‘Application’ section of each Code in chapter 5, there is a statement about ‘Relevant Development’ for that Code; and in section 2.5.2 impact assessable development is to be assessed against “the whole planning scheme, including relevant Codes…”
Mr Hughes SC’s submission on this issue was predicated on a statement in WBHQ Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126, where Fryberg J at [27] referred to the trial judge’s use of the words “low rise” as being in a colloquial sense rather than in the sense of a planning scheme definition of “Low rise building” (my underlining).
I do not agree with the distinction that Mr Hughes SC refers to. I do not think there is any distinction. In the three city plan references I have referred to above in [57], the first is a heading in a table and upper case first letters are used in each word; in the second the expression ‘Relevant Development’ is not defined; and in the third the expression ‘relevant Code’ (whether upper or lower case) is not defined.
In any event, in WBQH the planning scheme appears to have defined the expression “Low rise building”. In paragraph [27] Fryberg J referred to “…the definition of “low rise building”” (note the upper and lower case used!). At least in that case there was a definition of the expression that could be contrasted with a ‘colloquial’ construction of the expression. That is not the case here.
I do not consider there is any merit in that submission.
I do not agree that the respondent’s contention about the construction of its planning scheme is at all “counter-intuitive”. It is a logical and proper construction.
Conclusion
If the Demolition Code did apply to the circumstances of this case it may be arguable, as Mr Trotter implied in his submissions, that the appellant’s case would be enhanced. However, a logical and rational construction of the city plan does not support the application of the Demolition Code. There is no conflict or ambiguity in the relevant provisions. They are in my view clear and unequivocal. The Demolition Code does not apply in the assessment of the development application the subject of the appeal in this case.
It follows that the Preliminary Point should be determined in favour of the position contended for by the respondent.
Orders
The preliminary point is determined as follows:
1. In the circumstances of this appeal, the Demolition Code of Brisbane City Plan 2000 does not apply in the assessment of the development application the subject of the appeal.
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