Hearne v Brisbane City Council
[2010] QPEC 16
•9 March 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Hearne v Brisbane City Council [2010] QPEC 16
PARTIES:
BRIAN WAYNE HEARNE
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)FILE NO/S:
1323/2009
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
9 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
24 & 25 February 2010
JUDGE:
Searles DCJ
ORDER:
APPEAL ALLOWED
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL AGAINST DEEMED REFUSAL – DEMOLITION CODE - whether the appellant’s property has traditional building character.
Integrated Planning Act 1997 (repealed)
Sustainable Planning Act 2009
Armstrong v Brisbane City Council [2003] QPELR 475
Berlese v Brisbane City Council [2003]QPELR 330
Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2008] QPELR 147
Litbit Pty Ltd. v Brisbane City Council [2008] QPELR 74
Lonie v Brisbane City Council [1998] QPELR 201
Raiza Development Pty Ltd v Brisbane City Council [2005] QPELR 205COUNSEL:
S. Ure – Appellant
B. Job – Respondent
SOLICITORS:
McInnes Wilson Lawyers – Appellant
Brisbane City Legal Practice – Respondent
Nature of the appeal
[1] The appellant appeals the deemed refusal by the Council of a Development Application for a Material Change of Use, namely to demolish a pre-1946 house constructed on Lot 653 on Crown Plan SL 6059 County of Stanley, Parish of Bulimba, containing an area of 1,100 m2 and situated at 17 Bodalla Street, Norman Park (the property). The land is situated within the Demolition Control Precinct and allocated to the Character Residential Area within the City Plan. The appellant bears the onus of proof pursuant to s 4.1.50 (1) of IPA.
Site description and position
[2] Bodalla Street is L-shaped running roughly in a westerly direction from its intersection with Norman Crescent with the base line of the L running north to Wynnum Road. Access from either direction on Wynnum Road can be gained via Norman Cr. with a right hand turn into Bodalla Street or, if heading city-bound along Wynnum Road, by turning left into Bodalla Street. The street is in the nature of a cul-de-sac and presents as quiet secluded area with an abundance of natural vegetation providing privacy to its residents.
[3] The property is situated on the western side of Bodalla Street and, in effect, sits in the handle of a shanghai configuration with each section of Bodalla Street constituting the left forks of the shanghai. There is a ridge running across the eastern leg of Bodalla Street near Nos. 32 and 35 so the property cannot be seen from the Bodalla roadway on the eastern or Norman Crescent end of the street until one reaches the top of that ridge. Proceeding from the ridge towards the property it becomes visible from the roadway at or near No. 27 Bodalla Street[1].
[1]Report – M Elliott, Exhibit 8, Figure 31
Statutory context
[4] The operation of s 819(2) of the Sustainable Planning Act 2009 requires this appeal to be heard and determined pursuant to the provisions of the repealed Integrated Planning Act 1997 (IPA) as if it had not been repealed.
[5] The application is Code Assessable requiring it to be publicly notified. As a result of that public notification no submissions were received objecting to the proposal.
[6] Given the application’s code assessability, s 3.5.13 of IPA applies. It relevantly provides:
“3.5.13 Decision if application requires code assessment
(1)This section applies to any part of the application requiring code assessment.
(2)The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.”
Issues for determination
[7] The following issues have been raised by the Council as founding its opposition to demolition:-
“1. The proposal does not achieve the Performance Criteria and does not comply with the Acceptable Solutions of the Demolition Code, in that it does not meet one of the following:
i.) P1 and A1.1 – The building has not been substantially altered and still retains its appearance of being constructed prior to 1946.
ii.) P 1 and A1.2 – The engineering report fails to demonstrate that the building is structurally unsound and is not reasonably capable of being made structurally sound.
iii.) P1 and A1.3 – The demolition of the building will result in a loss of traditional ‘timber and tin’ building character within a Demolition Control Precinct in a Character Residential Area.
iv.) P1 and A1.4 – The street has traditional building character through the existence of a number of pre- 1946 houses.
2. The proposal is contrary to the purpose of the Demolition Code, in that:
i.)The demolition does not protect a residential building that contributes to traditional character and amenity in a residential area in a Demolition Control Precinct.
ii.)It does not ensure the preservation of buildings that form an important part of a pre-1946 streetscape.
iii.)It does not ensure that pre-1946 house precincts are retained.”
Performance Criteria and Acceptable Solutions
[8] The relevant Performance Criteria and Acceptable Solutions are contained in s 5 of the Demolition Code which provides:-
Performance Criteria Acceptable Solutions Where a residential building:
P1 The building:
· must not represent ‘traditional building character’, or
· must not be capable of structural repair, or
· must not contribute positively to the visual character of the street
Note: ‘Traditional Building Character’ is described in Section 4 of this Code
Where a residential building:
A1.1 The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946
OR
A1.2 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound
OR
A1.3 The demolition of a building will not result in the loss of:
· traditional building character within the Demolition Control Precinct where a Low Density Residential Area or Character Residential Area, or
traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low medium Density Residential Area
OR
A1.4 The street has no traditional building character
As it is not suggested that the building is structurally unsound, the second PC and AS A 1.2 are not relevant to the appeal.
Purpose of Demolition Code
[9] Section.3 of the Demolition Code relevantly provides that the purposes of the Code are:-
“● protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity.
● ensure the preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946.
● in conjunction with the Residential Design-Character Code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redeveloped in those precincts complements the houses constructed in or prior to the end of 1946..”
Does the property currently represent traditional building character within P1 of the Performance Criteria?
The appellant called Mr Veal, architect and town planner and the Council, Mr Elliott, architect and its principal urban designer. Both gentlemen are clearly very experienced in this area and the fact that they have differing views on the issue of whether the property exhibits traditional building character demonstrates that sophisticated minds may differ on the issue. Consistent with that, there was also evidence that both the Council’s urban planner and team architect charged with the responsibility of assessing the appellant’s application, each came to the view that the property had been substantially altered and no longer had the appearance of being constructed in or prior to 1946.
Section 4 of the Demolition Code sets out an explanation of the traditional building character and provides:
“Assessment guidance – an explanation of traditional building character.
Street context
The traditional scale of a street was first established by its subdivision pattern of 16, 24 or 32 perch lots, with 10, 15 or 20m frontages respectively. This pattern was reinforced by the traditional building form of a single level house elevated on stumps. This created a reasonably uniform scale, accentuated by consistent stepping of the levels of adjoining buildings in Brisbane’s hilly suburbs, and by uniform spacing between houses in the flatter suburbs.
Building form and scale
The predominant traditional building form of pre-1946 housing is a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floors and effect the layout of upper floor verandahs. Roof forms are medium pitched pyramids, hips or gables. This style is often referred to generically as the Queensland vernacular.
Other traditional building forms also exist, exhibiting overseas architectural influences on Brisbane’s residential design. These building forms occurred primarily during the interwar period. These styles include, but are not limited to, Art Deco, Spanish Mission, Californian Bungalow and Georgian.
Materials and details
The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens and batten panels that cast shadows and provide three-dimensional effects. Character is also derived from the relatively limited range of materials available at the time of construction. This provided a unifying theme of painted timber walls and corrugated steel roofing.
These lightweight external elements reduce building bulk and form a transition with the external landscape. They make an appropriate response to the local climatic conditions of strong sun and high rainfall.
Whilst ‘timber and tin’ are the predominant materials of the older suburbs, (sic) the presence of other distinctive building forms, such as the Spanish Mission, and their variety of materials highlights the overseas influence on residential design in Brisbane and is a part of the traditional building character. These housing styles are usually rendered on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof.
Setting
The traditional setting of houses in the older suburbs is a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and single width driveway.
The setting of the building on the site is also important, particularly in terms of the setbacks provided to existing or proposed side boundaries. Setbacks complying with related codes of the City Plan contribute to the character of older suburbs.”
Section 4 is explanatory rather that definitional. It does not denote some type of prototype from which only minor deviations of style are permitted[2]. Nor is it essential that a particular building should exhibit each and every one of the features identified in the Code’s explanation of “traditional building character”[3]and it is not any part of the Code to require a pre-1946 house to be of architectural merit[4]
[2]Raiza Development Pty Ltd v Brisbane City Council [2005] QPELR 205, at par [25].
[3]Berlese v Brisbane City Council [2003]QPELR 330 at 332.
[4]Armstrong v Brisbane City Council [2003] QPELR 475 at 478.
Appellant’s argument re traditional building character
Mr Veal in his report[5] concluded that the extent of the alterations to the property were such as to render it no longer representative of a traditional character house with a central core and attached verandahs. He identified[6] 19 alterations to the house in support of this view namely:
[5]Exhibit 2 paragraph 4.3
[6]Exhibit 4. (In fact, there are 20 items on the Exhibit but the appellant agreed that Item 20 was not to be relied on)
1. House raised and built-in under with brickwork.
2. Timber stumps removed and replaced with concrete posts.
3. Steel framing installed to support house.
4. New garage built on northern side of house
5. New front stairs replaced original stairs.
6. Gable pediment constructed over front entry (there was no pediment originally).
7. New balustrading and
verandah posts.8. Lattice work installed.
9. Enclosure southeast
corner of verandah to
form bathroom.10. Enclosure of northern
verandah with glass
and louvres.11. Construction of
verandah on the
south and new stair.12. Construction of new roof over southern verandah
13. Removal of rear entry landing and stair on western elevation.
14. Construction of new western verandah and stair.
15. Extension of existing gable roof over new western verandah.
16. Construction of new skillion roof over new western verandah.
17. Extension at rear to make room for a modernised kitchen. Dining area internal walls sheeted with VJT&G plaster board.
18. Sliding aluminium windows and hood installed on western elevation.
19. New single pane casement windows installed in kitchen area.
Those alterations are graphically depicted in 16 photographs to be found in Section 3 of his report. Mr. Veal agreed that the house has pre-1946 origins, but nevertheless considered that the substantial alterations had deprived it of classification as a traditional character house.
The appellant points particularly to the following alterations which he says found the deprivation of traditional building character[7]:-
[7]Exhibit 2 - Veal Report photographs pp 18, 27 and 28.
(a) The fact the house no longer presents as a single level house elevated on stumps but has been raised and built underneath with that underneath section being enclosed by brick;
(b) The house no longer appears as a solid core with attached or integrated verandahs raised above the ground on timber supports. Rather the glass louvres and aluminium windows enclosing much of the northern verandah have removed the view of the core from the street. Immediately to the south of the entrance the former open eastern verandah has been enclosed by a solid wall containing a post-1946 multi pane clear glass window;
(c) The timber supports have been replaced by modern stumps;
(d) The area under the house no longer exhibits and appearance of lightweight support to upper floors as a result of the heavy dark coloured brick containing modern multi-pane clear glass windows;
(e) The present brick under croft does not reflect the layout of the upper floor verandahs in that the brickwork is now flush with the northern wall which contains the metal framed glass louvres and aluminium windows;
(f) The traditional building character originally characteristic of the building by virtue of its painted timber walls and corrugated steel roofing has been lost as a consequence of:-
(i) the introduction on to the eastern elevation of the metal clad flat roofed double roller door garage at the north eastern corner of the house at the driveway;
(ii) the metal framed post-1946 glass louvres;
(iii) the aluminium framed post-1946 glass windows;
(iv) the steel front stair support structure; and
(v) the multi pane clear glass window in the solid wall now obscuring the former open verandah on the south east corner.
(g) The large bulky horizontal balustrade on the eastern elevation has no relationship to the type of lightweight pre-1946 balustrades forming part of traditional building character.
Council’s response
Mr Elliot was of the view[8] that the building clearly represented the “timber and tin” traditional building character that was sought to be protected. He considers that the building is a representative example of the bungalow class of traditional house styles built between 1900 and 1930 and could be identified as such from the combination of architectural characteristics included but not limited to:-
[8]Exhibit 8, paragraph 23.
(a)
a continuous, low-pitched roof extending to the verandah
edge;
(b) pyramid roof form; clad in corrugated metal sheeting;
(c) verandah located under a single roof structure;
(d) verandah at the front (originally L-shaped with a side return but currently partly enclosed);
(e) steps at right angle to the verandah aligned to the entry door of the house;
(f) supported on stumps; and
(g) timber verandah structure including posts (and balustrades).
He identified the following further elements of traditional building character present in the building and consistent with the bungalow type dwelling:-
(a) entry pediment gable with timber fretwork in-fill detailing;
(b) verandah edge supported on perimeter stumps with the lower level deeply recessed across the front (eastern) elevation of the house;
(c) single skin, belted VJ front wall set within the verandah overhang;
(d) entry doorway and French doors incorporating fanlight glazing panels providing access from the internal spaces on to the verandah in several locations; and
(e) building core incorporating a symmetrical arrangement of rooms around a central hallway.
Apart from the above evidence I had the benefit of a view of the property and its environs. In coming to my decision I have kept in mind the disciplinary caution as to the requisite objectivity in these matters which Skoien SJDC visited upon himself in Lonie v Brisbane City Council[9]. His Honour said:-
“In a case such as this in which the determining features are such concepts as building character, tradition, style and aesthetics, I have to keep firmly in mind that I must act on the evidence, not my own opinions on such things. In particular, I must remember that a view [which I had] is not evidence, but merely an aid to the understanding of the evidence”
[9] [1998] QPELR 209 at 210.
Conclusion re traditional building character
Having considered the reports and evidence of both experts, I have come to the view that the evidence of Mr Veal resulting in his conclusion that the property has lost its traditional building character is to be preferred to that of Mr. Elliott. It follows that I find that the building does not represent traditional building character as a result of the substantial alterations it has been subjected to over the years. In my view it no longer enjoys the appearance of a pre-1946 house.
It is unnecessary for me to deal with the remaining relevant third dot point in P1 as to whether or not the building contributes positively to the visual character of the street given that the Performance Criteria in the Demolition Code are alternative not cumulative requirements[10]. The appeal is allowed.
[10] Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2008] QPELR 147, at par [12]; Litbit Pty Ltd. v Brisbane City Council [2008] QPELR 74, at par [7].
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