Harrison v Brisbane City Council
[2023] QPEC 12
•5 May 2023
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Harrison v Brisbane City Council [2023] QPEC 12
PARTIES:
BREEANA HARRISON
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)FILE NO/S:
2143/2022
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
5 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
16 and 17 February 2023
JUDGE:
Rackemann DCJ
ORDER:
THE APPEAL IS DISMISSED
CATCHWORDS:
CASES:
LEGISLATION:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – Appeal against the respondent’s refusal of an application for preliminary approval for building work, being the demolition of an existing detached dwelling house – where the subject land falls within the Character Residential (infill housing) zone and is covered by the Traditional building character overlay – where the subject dwelling house was originally constructed prior to 1911 and its proposed demolition is assessable development requiring code assessment – whether the relevant part of the street can be said to have traditional character – whether the subject house represents traditional building character – whether discretion to approve should be exercised in circumstances where the relevant code requires retention of pre-1911 buildings unless they are structurally unsound.
Unterweger v Brisbane City Council (2012) QPELR 335.
Birleymax Pty Ltd v Brisbane City Council [2017] QPEC 44.
Planning Act 2016 (Qld).
Planning and Environment Court Act 2016 (Qld).
COUNSEL:
ND Loos for the Appellant.
R Yuen for the Respondent.
SOLICITORS:
Mullins Lawyers for the Appellant.
City Legal for the Respondent.
This appeal is against the respondent’s refusal of an application for preliminary approval for building work by way of demolition of an existing detached dwelling house on land situated at 1-5 Mole Street Teneriffe, at the intersection of Mole Street and Walker Avenue. The appeal proceeds as a hearing anew.[1] The appellant bears the onus of establishing that the appeal should be upheld.[2]
[1]Planning and Environment Court Act (PECA) s 43.
[2]PECA s 45(1)(a).
The subject land falls within the Character Residential (infill housing) zone under the respondent’s planning scheme and, more relevantly, is covered by the Traditional building character overlay (the overlay). Since the subject dwelling house, or at least a component of it, was originally constructed prior to 1946 and, indeed, prior to 1911, its proposed demolition is assessable development requiring code assessment.[3]
[3]Ex. 8, p 73.
By operation of s 46(2)(a) of the Planning Act 2016 (Qld) (‘PA’), s 45 applies to this court as if it were the assessment manager. Section 45(3) of the PA provides that:
A code assessment is an assessment that must be carried out only—
(a)against the assessment benchmarks in a categorising instrument for the development; and
(b)having regard to any matters prescribed by regulation for this paragraph.
The relevant assessment benchmarks stipulated in the planning scheme are the Traditional building character (demolition) overlay code (the overlay code) – purpose, overall outcomes and outcomes in sections A and B.[4] Section A relates to partial demolition and so is not applicable. Section B relates to demolition or removal of a building constructed in 1946 or earlier. It is in the familiar performance outcome and acceptable outcome format. A code compliant proposal under the respondent’s planning scheme is one that demonstrates compliance with the purpose, overall outcomes and performance outcomes or acceptable outcomes.[5]
[4]Ex. 8, p 73.
[5]Ex. 8, p 61.
Having carried out assessment, the court:[6]
[6]Section 60(2) of the PA.
(a) must approve the development application to the extent it complies with all of the assessment benchmarks for the development;
(b) may approve the application even if the development does not comply with some of the assessment benchmarks;
(c) may impose development conditions on an approval, and
(d) may, to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance cannot be achieved by imposing development conditions.
The appellant accepts that she cannot establish that the development complies, nor that it be conditioned to comply, with all of the assessment benchmarks. Accordingly, she seeks a favourable exercise of the discretion to approve.
The purpose of the overlay code is to:
(a) Implement the policy direction in the strategic framework, in particular:
(i) Theme 2: Brisbane’s outstanding lifestyle and Element 2.1- Brisbane identity;
(ii) Theme 5: Brisbane City Shape and Element 5.5- Brisbane’s Suburban Living Areas.
(b) Provide for the assessment of the suitability of building work for the demolition, removal or repositioning of a building or structure if any part of the building or structure was substantially constructed in 1946 or earlier, in the Traditional building character overlay.
That purpose is said to be achieved through a number of overall outcomes. The overall outcomes of relevance to the subject proposal include overall outcomes (a) and (d) which are as follows:
(a) Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character.
…
(d) Development protects a residential building or a part of a building constructed in 1946 or earlier where it forms a part of a character street scape comprising residential dwellings constructed in 1946 or earlier nearby in the street within the Traditional building character overlay.
Of relevance to the matters the subject of those overall outcomes are performance outcome 5 and its corresponding acceptable outcomes in (a), (c) and (d) of section B. Those provisions are as follows:
PO5
Development involves a building which:
a. does not represent traditional building character; or
b. is not capable of structural repair; or
c. does not contribute to the traditional building character of that part of the street within the Traditional building character overlay.
AO5
Development involves a building which:
a. has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; or
b. an engineering report prepared by a Registered Professional Engineer Queensland which certifies that the building is structurally unsound and not reasonably capable of being made strictly sound; or
c. if demolished will not result in the loss of traditional building character; or
d. is in a section of the street within the Traditional building character overlay that has no traditional character.
Note- For the purpose of this code, comparative analysis of an existing dwelling constructed in 1946 or earlier against the current timber framing standards is not considered to demonstrate “structurally unsound”.
PO5(b) and AO5(b) are irrelevant since there is no suggestion of structural unsoundness in this case. For convenience I will refer to overall outcomes (a) and (d) together with PO5 and AO5 as the character provisions.
There was a debate about the extent to which the relevant part of the overlay can be said to have traditional character. The house is on the corner of Mole Street and Walker Avenue. To the east, Walker Avenue becomes Chermside Street. To the west it intersects with Mackellar Street, which falls away from that intersection. The overlay applies to the nearby houses in those streets.
The heritage experts carried out an assessment of the buildings within the visual catchment. Excluding the subject house, they found a total of nine pre 1947 houses.[7] They also found two other pre 1947 houses with visually prominent contemporary additions.[8] They found 10 post 1946 houses,[9] together with a property where a new contemporary house is presently under construction.[10]
[7]Ex 3 pg. 58 Figure 67 red dots.
[8]Ex 3 pg. 58 Figure 67 yellow dots.
[9]Ex 3 pg. 58 Figure 67 green dots.
[10]Ex 3 pg. 58 Figure 67 blue dots.
Mole Street drops away rapidly to a dead end at its southern extremity and there is considerable vegetation in that lower part of the street. In the course of cross-examination, Mr Pendergast (the expert called by the respondent) correctly agreed that the last two houses on either side of that street, two of which are pre 1947 and two of which are post 1946, make no meaningful contribution.[11] Mackellar Street also falls away from its intersection with Walker Avenue. As Mr Pendergast pointed out however,[12] the pre 1947 houses in that street are within a visual catchment from the Walker Avenue/Mackellar Street intersection.
[11]T1-64 – note that both days of the transcript are numbered as day 1 but all of the evidence was heard on 16 February 2023.
[12]T1-64.
Mr Elliott, (the expert called by the appellant), expressed the view that the relevant sections of Mole Street and Walker Avenue, in which the subject site is situated no longer represent traditional character, due to the proliferation of post 1946 residential development now extant around the subject house and more broadly within the surrounding locality.[13]
[13]Ex. 3, para 35.1.
In expressing his views, Mr Elliott referred to the two pre 1947 houses with contemporary additions, one of which is situated to the immediate west of the subject house and the other situated on the eastern side of the intersection of Mole Street and Walker Avenue, opposite the subject house, as effectively “bookending” the subject house. Considered in combination with the property to the immediate south (which is the one on which a new contemporary house is currently being built), he saw the subject property as effectively surrounded by post 1946 development.
The fact that a pre1947 house has a contemporary addition does not necessarily mean that it should be treated as if it were a building without traditional building character. Whilst, in the course of cross-examination, Mr Pendergast accepted that the contemporary addition to the house on the corner opposite the subject dwarfs any traditional building character of that building,[14] he was correct in his observation, in the joint report, that the other pre 1947 building with a contemporary extension continues to give the appearance of a building of traditional character.[15]
[14]T1-66.
[15]Ex 3 Figures 53 and 54 and the accompanying commentary.
Mr Pendergast regards the relevant area of the overlay as still retaining traditional character derived from the traditional building character that still exists. He placed particular emphasis upon what can be viewed from Walker Avenue (including of the side of the house at 69 Chermside Street). Having considered matters including the changes in elevation and the existence of a vegetated median in Walker Avenue, he concluded that there is a “diverse range of sight lines” forming the streetscape environment. Further, whilst there are contemporary houses and altered pre 1947 dwellings, in his view they do not outweigh the traditional dwellings which collectively contribute to the streetscape in which the subject house resides.[16]
[16]Ex. 3, para 31.2 at p 49.
The relevant part of the overlay features a range of buildings, some of which display traditional character and others that do not. It could not, in my view, be accurately described as having no traditional character such as to satisfy AO5(d), even allowing for the expression to be taken to mean no material or meaningful traditional character (rather than interpreted in an absolute way).
Although, in the joint report, Mr Elliott had expressed the opinion that the subject house is located in the section of the street which has no traditional character,[17] he accepted, in the course of his testimony, that there is a mix of traditional and non-traditional character[18] and that he would be “hard pressed” to say that AO5(d) was met.[19] I consider Mr Elliott’s opinions in this regard, as expressed in the joint report, were too strong. There is, in my view, sufficient traditional character within the relevant section of the street such that it has traditional character and traditional building character. I prefer the evidence of Mr Pendergast in this respect.
[17]Ex 3 pg. 42.
[18]T1-48.
[19]T1-49.
The remaining issues relate to the subject building itself. It is a prominent building on a visually prominent corner site and so is well located to make a contribution to traditional character.[20] The appellant contends however, that it does not contribute to traditional building character (PO5(c)) because it no longer represents traditional building character as a consequence of being substantially altered (AO5(a)). Accordingly if demolished, it will not result in the loss of traditional building character (AO5(c)) and its demolition will not offend overall outcome, 2(a) or (d). The respondent contends to the contrary.
[20]T1-47.
The expressions “traditional building character” and “traditional character” are not defined terms in the planning scheme. The traditional building character planning scheme policy (the policy) however, provides “guidance on the elements that comprise traditional character and traditional building character”. Those things vary in the context of demolition or new development including extensions, but are a combination of one or more of the following:
(a) traditional building form and roof styles;
(b) traditional elements, detailing and materials;
(c) traditional scale;
(d) traditional setting.
The policy goes on to describe each of those things. In describing traditional building form and roof styles the policy records that the predominant traditional building character of dwelling houses constructed in 1946 or earlier is often referred to generically as the Queensland Vernacular, which usually comprises:
(a) a core with attached or integrated verandahs raised above the ground on timber supports which are now often replaced with concrete or steel stumps or steels beams;
(b) enclosed areas under the dwelling house that generally maintain the street appearance of light weight supports to upper floors and reflect the layout of upper floor entrance and verandahs;
(c) roof forms of medium pitched pyramids, hips or gables.
The subject house presents as an attractive and impressive dwelling house which appears to be of Queensland vernacular character. Mr Elliott readily conceded that most people would view the house as a good example of a Queenslander.[21] He described the building, as a whole, as having a general built form that is consistent with a late colonial style house on a fairly large scale. [22] It is a building that does not conform to the second limb of AO5(a).
[21]T1-30.
[22]T1-30.
The appellant’s case is, in effect, that looks can be deceiving. The building, in its original form, was a conventional bungalow with an L shape verandah across the northern and eastern edge.[23] The building was however, subject to alterations and extensions in the 1980’s. Those works were summarised in the joint report of the heritage experts as follows:
[23]Ex. 3, para 11, 26.
·Western bedroom wing added (and subsequently increased to two storeys);
·Lower level partially enclosed to form a double garage and a secondary living space beneath the core of the house;
·Veranda roof form altered from a fully integrated roof to a detached verandah roof;
·Corner verandah rotunda added at north-eastern corner;
·Southern verandah wing added (and subsequently enclosed);
·Western dormer roof added to link the primary living spaces with an external pool area;
·Bay form arrays of double hung windows added to the Mole Street facade in two locations;
·Removal of original front door from Mole Street facade and relocation into Walker Avenue facade;
·Removal of central hallway and several internal partition walls to create an open plan space combining living/dining/kitchen areas around the retained fireplace;
·External lining of the Mole Street and Walker Avenue core walls in timber chamferboards;
·Partial enclosure of the northern verandah to enable internal stair linking to the enclosed lower level.
Mr Elliott regards the 1980s works as transformative, changing the character of the building from anything derived from its pre 1947 form to one now derived from the 1980’s works. He pointed out that the alterations changed the style of the building from federation to colonial. In his view the building has lost its traditional character, is now, in effect, a modern facsimile of a different style of house and is appropriate for demolition.
It was not disputed that the character provisions of the overlay code do not seek to protect buildings constructed entirely after 1946, even if they resemble those from an earlier time. The purpose of the overlay code, extracted earlier, speaks of providing for the assessment of demolition if any part of a building or structure was substantially constructed in 1946 or earlier in the overlay. Overall outcome (g) states that “development permits demolition or removal of post-1946 residential buildings or structurally unsound buildings”. The planning scheme identifies, as prescribed accepted development within the overlay, the demolition of post 1946 additions, extensions or free-standing outbuildings as well as the demolition of post 1946 alterations in order to reveal the original design or for reconstruction with the original form and materials.[24] It also provides that code assessment against the overlay code is required for building work if involving demolition of any component of a building constructed in 1946 or earlier if on a corner lot or if involving demolition of the components of a building constructed in 1946 or earlier forward of a point which is the highest and rearmost part of the roof.[25] Accordingly, there is significance in when something was constructed.
[24]Ex. 8 pg. 64.
[25]Ex 8 pg. 73 – it also specifies code assessment for building work if involving demolition of any component of a building constructed prior to 1911.
None of the above however, is to say that a building built in 1946 or earlier loses traditional building character, so as to justify demolition, if it has post 1946 fabric. For example, like for like replacement of old fabric with new, as part of maintenance, repair or restoration will, as Mr Elliott effectively acknowledged,[26] generally not constitute substantial alteration causing a loss of traditional building character.
[26]T1-42, 43.
As Mr Pendergast pointed out in the joint report,[27] one of the key aspects of Queensland vernacular architecture is that it is adaptable, easily modified and resilient to change. Consequently, such buildings have often been the subject of some modification over time. It is not uncommon for the court to be called upon to consider whether subsequent modifications have robbed a pre-1947 building of its traditional building character. What is different about this case is the contention that works which have left the building with an impressive Queensland vernacular appearance has nevertheless robbed it of traditional building character.
[27]Ex 3 pg. 31.
Whilst Mr Pendergast conceded that the alterations affected the building’s particular style,[28] it was submitted, for the respondent, that the expression “traditional building character” is broad and that the building, assessed as it stands, retains that character. It was submitted that there is no warrant for excluding parts of the building for the purpose of assessing the proposed complete demolition against the overlay code and that the code does not require a pre-1947 dwelling to be kept in the same style and that both the federation and colonial styles are part of the Queensland vernacular character that the building continues to express.
[28]Ex 9 para 3.4, T1-58.
I was also reminded that, in Unterweger v Brisbane City Council,[29] I said that, when considering whether a building has been “substantially altered” for the purposes of the first limb of AO5(a), it should be kept in mind that the relevant part of the AO is addressing PO5(a), so that the question should be addressed having regard to the things that give the building traditional building character. It was submitted that, despite the extent of the 1980s’ works, the building retains traditional building character, because the 1980s’ alterations were not unsympathetic to that character.
[29](2012) QPELR 335.
I take the respondent’s point that whilst a modern true replica does not fall for assessment against the overlay code, the demolition of a building constructed in 1946 or earlier that does fall for assessment must be assessed as it stands. It seems to me however, that the extent to which it can be said that the building’s apparent character,[30] in so far as it appears to be traditional is, in fact, derived from subsequent transformative alterations (including to the things that previously contributed to its traditional building character) rather than from what remains of its pre-1947 form, can be relevant at least to the discretion to approve in circumstances where it is these character provisions which are said not to be complied with.
[30]A term which I accept may be broad in the style.
Mr Pendergast did not view the effects of the 1980s’ works as so substantial and did not concede a loss of traditional building character. He characterised a number of the external changes as like for like replacements or reconstructions and did not regard any of the alterations as robbing the house of its traditional building character. He placed weight on the fact that the house remains in the original location and retains its setting. He did not regard the building, as it now stands, as a facsimile or a replica, but as the same house, in its original setting, with the same primary characteristics as when originally constructed.
It is unnecessary for me to descend further into the detail of the conflicting views of the experts in this regard, to resolve that conflict or to make findings in relation to the character provisions. That is because, in light of the admitted noncompliance with the pre 1911 provisions of the overlay code, I would not exercise the discretion to approve in favour of the appellant even if it were assumed that the issues in relation to the character provisions were resolved in her favour.
It has already been noted that the building dates back to pre-1911. The joint report of the experts puts it at circa 1903/04.[31] A proposal to demolish any component of a building constructed prior to 1911 is also subject to code assessment against the overlay code. Accordingly overall outcome (b) and performance outcome PO6, with its associated acceptable outcome (which for convenience, I will refer to as the pre 1911 provisions) are relevant. They provide as follows:
(b) development protects buildings constructed prior to 1911 by limiting demolition or removal to only where a building is structurally unsound.
Additional performance outcomes and acceptable outcomes if a pre-1911 building
[31]Ex 3 pg. 5 para 10(h).
PO6
Development involves a building which is not capable of structural repair.
AO6
Development involves a building which a Registered Professional Engineer Queensland certifies is structurally unsound and not reasonably capable of being made structurally sound.
Note- For the purpose of this code, comparative analysis of an existing dwelling constructed in 1946 or earlier against the current timber framing standards is not considered to demonstrate “structurally unsound”.
As there was no suggestion of structural unsoundness, the appellant accepts that she cannot establish compliance with those provisions. She must therefore rely on a favourable exercise of the discretion to approve.
The appellant again pointed to the extent of the 1980s’ alterations. It was submitted that the noncompliance is not serious because the pre-1911 building fabric that remains is limited and largely unable to be seen from the street, such that the public gains no appreciation of Brisbane’s history from it and there would be no planning harm done in allowing those elements to be lost through demolition. The pre-1911 elements were described as disparate and discrete items that float within a contemporary structure and ought not be protected.
It is important to bear in mind the difference between the protection against demolition afforded to pre-1911 buildings and that afforded to buildings constructed in 1946 or earlier more generally. Overall outcomes (a) and (d) do not seek to protect all residential buildings constructed in 1946 or earlier, but rather only those which have the stated effect on character. Overall outcome (b) however, is different. The protection from demolition of buildings constructed prior to 1911 is not expressed to be conditional on any effect they might have in terms of character. The only qualification is in relation to structural unsoundness. It is a separate and distinct overall outcome which is not deprived of relevance or significance where demolition would not offend overall outcomes (a) and (d).
That difference is reflected in the difference between PO5 and its corresponding acceptable outcomes – which apply to the demolition or removal of buildings constructed in 1946 or earlier generally – and PO6 and its corresponding acceptable outcome – which is an additional performance outcome and acceptable solution that applies to pre-1911 buildings. Being additional provisions, they apply even where PO5 or its acceptable outcomes are satisfied. Accordingly, an applicant for approval for demolition of a structurally sound pre-1911 building will still find their proposed demolition to be noncompliant with the overlay code even where, for example, consistently with PO5(a) the building does not represent traditional building character or, consistently with AO5(a), the building has been substantially altered and no longer has the appearance of being constructed in 1946 or earlier, or consistently with AO5(d), is in a section of the street with no traditional character. Whilst there is, in PO2 in section A of the overlay code, a test which references traditional building character for a proposed partial demolition, there is none for full demolition. That affords a high level of protection from demolition to pre 1911 buildings, but that is the effect of unequivocal provisions which should be given due respect.[32]
[32]I also note that the provision which stipulates code assessment against the overlay code for building work if involving demolition of any component of a building constructed prior to 1911 deals with building work involving demolition of components of a building constructed in 1946 or earlier only if on a corner lot or if the components are forward of a point which is the rear most part of the roof. The provision, in so far as it relates to 1946 or earlier appears to be directed to the part of the building that would present to a street frontage. Its treatment of pre 1911 is not so limited – Ex 8 pg. 73.
In Birleymax Pty Ltd v Brisbane City Council,[33] the court dismissed an appeal against the refusal of an application to demolish a house which the court found to be a pre-1911 building. The external appearance of the house had been “butchered somewhat” as a consequence of alterations in the 1950’s. There was no suggestion that the demolition would offend the character provisions of the then version of the overlay code. As the building was structurally sound however, its demolition would have offended the pre-1911 provisions.
[33][2017] QPEC 44.
The appellant, in that case, as in this, submitted that the provisions of the overlay code are intended to preserve buildings which, unlike the building there under consideration, exhibit traditional character and make a positive contribution to the streetscape. It was contended that the building had been substantially altered, did not contribute positively to the visual character of the street, did not represent traditional building character and, if demolished, would not result in the loss of traditional building character. It was submitted that, in the circumstances, there was no public interest in preserving the house from demolition.
The court did not consider that the matters relied upon fell within the meaning of “grounds” on the statutory test then (but no longer) applicable. The court went on to say however, that even if that were not so, the fact that the structurally sound house does not contribute to the traditional building character of the street is not a matter that justifies approval.
Although the protection from demolition afforded to pre 1911 buildings by the provisions of the overlay code are strong, it may be appropriate to entertain a favourable exercise of discretion in circumstances where the remaining pre-1911 components are trivial or so insubstantial or insignificant as to defy a sensible application of the pre-1911 provisions.
I have already summarised the alterations. It is appropriate to consider what has been retained. For this purpose I will exclude any like-for-like replacement/reconstruction aspects of the 1980’s works. I will also exclude pre-1911 internal walls and features, the demolition of which are accepted development. What remains of the pre-1911 fabric is:
(1) Flooring[34] which, whilst now covered, sits in its original location, elevated on stumps.
[34]Including supporting subframe of bearers and hoists – T1-601, 61.
(2) A not insignificant extent of the external walls which, whilst now sheeted with chamferboard on the Mole Street and Walker Avenue sides (and enclosed by the new verandah wing on the southern side) nevertheless form part of the core of the building and affect its form.
(3) Roof framing – whilst there were alterations to the roof in the 1980’s, not least by truncating it at the external walls, so as to facilitate a detached verandah roof over the reconstructed verandahs, pre-1911 roof framing elements have been retained over the core of the building. Whilst clad with (replaced) roof sheeting, they continue to affect the roof form of the building.
(4) The brick chimney from the (also retained) fireplace.
Mr Elliott, in his individual statement of evidence, provided a plan view showing, in red, the extent of retained walls together with the footprint of the fireplace/chimney/hearth assembly. As Mr Pendergast pointed out in his testimony,[35] a vertical section would show a greater extent of red, because it would pick up the floor and roof elements not shown in Mr Elliott’s figure.
[35]T1-60, 61.
I would not adopt the description of the pre-1911 elements as disparate and discrete items floating within a contemporary structure. They are more substantial than that. Whilst it is a matter of degree, I do not consider that the extent of the remaining pre-1911 fabric is so trivial, insubstantial, or insignificant as to defy a sensible application of the pre 1911 provisions or to otherwise persuade me to exercise the discretion in favour of approval, having regard to the strength of those provisions.
For the reasons given, the proposed demolition does not comply with at least some of the assessment benchmarks, being at least overall outcome (b) and PO6 or AO6,[36] compliance cannot be achieved by the impositions of conditions and I am not persuaded to exercise the discretion to approve. Accordingly, the appeal is dismissed.
[36]Noting the compliance with the AO is not necessary if the PO is complied with.
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