Hendicott v Toowoomba City Council
[2003] QPEC 28
•18 July 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Hendicott v. Toowoomba City Council [2003] QPEC 028
PARTIES:
TERRY HENDICOTT (Appellant)
v.
TOOWOOMBA CITY COUNCIL (Respondent)
FILE NO/S:
701 of 2003
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
18 July 2003
DELIVERED AT:
Brisbane
HEARING DATE:
24 March 2003
JUDGE:
Quirk DCJ
ORDER:
The appeal is dismissed on the ground that the onus of showing that the application for approval as required by Column 3B of the Table of Zones has not been discharged because consistency with the relevant criteria and guidelines in Development Control Plan 5 has not been demonstrated
CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING – town planning – applicant appeal – conflict with DCP
COUNSEL:
Mr S Ure for the respondent
Mr T Hendicott self represented
SOLICITORS:
Toowoomba City Solicitor for the respondent
This rather complicated matter arises out of an application by the appellant for necessary approvals to raise and extend an existing dwelling on the corner of Hume and Godsall Streets Toowoomba. The complications lay not so much in the merits of the matter but in the nature of the application and the way in which it was decided.
The application was for:
“A development permit for a material change of use of a premises and a preliminary approval to carry out building works”.
On the relevant form the application was described as being for “code assessment” for “dwelling extensions”. At the time of the application the appellant had the assistance of Rhonda Myles, an experienced Toowoomba Town Planner.
On the subject land there is presently an old single storey dwelling of timber construction with an iron roof. The proposal involves relocation, extension and raising of the dwelling to form a two storied structure. The intended result can be seen from drawings placed before the court.
The subject land occupies 840 square metres on a corner site. Hume Street is a major city thoroughfare and was described as a “trunk collector road”. Godsall Street separates Queens Park from one of the older residential areas of the city which was described in this way;
“The existing pattern of land uses in the area surrounding the subject site is characterised by two main features – the predominance of single storey timber houses that provide much of the character of inner Toowoomba and Queens Park. Godsall Street is a notable example of intact early timber housing in good condition.”
The planning importance of this has been recognised by the Councils strategies for the area. The present Town Planning Scheme which was gazetted in 1989 has the subject land and its surrounds included in the Residential A zone. In the mid-1990’s the Council caused a “residential area heritage study” to be undertaken. In 1996 a Toowoomba heritage inventory was made. In 1997 DCP5 was gazetted and introduced development regulation for the urban conservation precincts focused on the heritage and character significance of those precincts. The DCP5 area was expanded and its provisions modified by way of amendments to the Planning Scheme in May 2000.
At the time of the hearing the gazettal of the new Town Planning Scheme consistent with the Integrated Planning Act was anticipated within weeks. The controls relevant to the consideration of this application were to be maintained in this new Scheme.
In the Town Planning Scheme the subject land is included in the Residential A zone. In the Table of Zones a dwelling house is found in Column 3B where the provisions of DCP5 applied (as they do here). As the Table indicates, purposes identified in the column are those:
“For which development may be carried out without the consent of Council but for which the approval of Council is required.”
In such circumstances a Code assessment rather than an Impact Assessment is called for.
While the broad intentions of the Scheme for the Residential A zone are not offended, reference must be made to the more detailed provisions which are enlivened because of the subject land’s location in a conservation precinct. Part V of the Scheme sets out the “requirements for development”. Clause 2(4) provides:
“Development on a site included in DCP5 – Heritage and Character must comply with the intent and all applicable requirements of that development control plan”
As indicated the relevant DCP in this case is DCP5 in which the subject land is included in one of the urban conservation precincts (the Godsall Estate precinct). A detailed account of the intent for this precinct is found in its introduction (Clause 1). It is emphasised that included in the broad intentions of the Development Control Plan is the following:
“To ensure that development contributes in a positive way to the streetscape and character of the residential areas identified in this Development Control Plan”.
The stated objectives of the DCP are spelt out:
“(1).To conserve and enhance the buildings, structures and other attributes that contribute to the character of the Urban Conservation Areas 1 and 2 and Urban Conservation Precincts.
(2)To ensure that development is compatible with and has no adverse impact on the character of the surrounding areas.
(3)To encourage sympathetic restoration, renovation, maintenance and repair of places that contribute to the special character of Toowoomba
(4)To ensure that new works, including additions, dwelling houses and dwelling units, are sympathetic and complimentary to the special characteristics of the Urban Conservation Areas 1 and 2 and the Urban Conservation Precincts.”
Detailed performance criteria for new development are found in Clause 4. Subclause (1) provides:
“In the Urban Conservation Areas 1 and 2 and the Urban Conservation Precincts new development, including dwelling or extensions greater than 25 square metres, requires the approval of Council. The applicant must demonstrate that the criteria detailed in this section and the guidelines in s.5 have been satisfied.”
The relevant criteria are found in the following subclauses which provide
“(2)Development must be designed and constructed in a manner sympathetic to and respectful of the significance of the place or building and its contribution to the heritage and character of the surrounding area with particular reference to:
(a) The character, appearance, location and bulk of the proposed development and its relationship to the cultural significance, character and appearance of the subject place or building and the surrounding area;
(b) Whether the proposal is likely to cause irreversible damage to the cultural significance of the place or building, or the surrounding area;
(c) The design elements of form, bulk, height, scale, siting,
orientation, rooflines and form, materials and detailing which must be compatible with the setting and character of the surrounding area;
(d) Incorporating design elements that are complementary to, but not an exact replica of, surrounding buildings;
(e) The design and use of materials to blend with and not detract from the individual place or the surrounding area;
(3) Development must be subservient to and not detract from the appearance or prominence of existing buildings when viewed from adjoining streets or public rights of way, nor should development obscure important vistas of places or areas within Urban Conservation Areas 1 and 2 and the Urban Conservation Precincts. Accordingly, new development:
(a) should not be sited in front of existing buildings on the site;
(b) must be set back to an equal or greater distance from the street than existing buildings adjacent to the site;
(c) must respect and maintain streetscape patterns, for example, side boundary setbacks, car entry and accommodation;
(d) must be of a lower or equal height to the existing buildings adjacent to the site, with the wall height and roof height, shape and pitch being compatible with existing buildings;
(e) should have windows and doors that are compatible with the style of the majority of existing buildings in the area;
(f) should, where practicable, retain any special features of the place or building including the architecture, archaeological, historic or cultural heritage.”
Certain specific matters must be taken into account when applications of this kind are determined. They are spelt out in s.6 and include:
“The advice received from Council’s Heritage Advisor (or similar qualified heritage professional’s advice).
In this case the Council consulted with Mr. Ivan McDonald, an architect with considerable experience in these matters. I had the advantage of his evidence on the hearing of the appeal.
Mr. McDonald pointed out that the Godsall Estate Precinct has been described (correctly in his view) as being
“… characterised by a diverse range of turn-of-the-century low-set timber houses varying in size from small cottages to large villa-style residences. The Precinct is highly intact and most buildings are in good condition. The Godsall Street houses are set in a streetscape of mature camphor laurel trees and bluestone curbs with views to the south across Queens Park.”
He assessed the present dwelling on the site as follows:
“The site is located on the corner of Godsall and Hume Streets. It contains a moderate-sized lower-set timber and corrugated house with verandahs on the two street frontages. The walls are supported on timber stumps infilled with timber batons. The roof form is a moderate-steeply pitched hip roof with a projecting front gable. It appears to have been built around the first decade of the 20th century and is similar in style to other gabled Toowoomba houses of its era.”
As for the proposal, he observed:
“The proposed development intends to convert an existing single- story low-set timber house into a two-story high set house with a rendered masonry base underneath. The appearance of this alteration will depart significantly from the appearance of the existing house which is currently characterised by its single, low level, consistent with other pre-World War II timber houses in the surrounding area. While two-story pre-World War II houses were occasionally built in the inner residential area, they were a relatively rare exception to the norm and do not form a strong characteristic of the inner residential area or the Godsall Estate Precinct as does the single-story, low-set timber house format.”
Mr. McDonald went on to give details of a survey which he conducted and demonstrated that 94% of the Godsall Estate Precinct could be regarded as low-set. He defined “low-set houses” as being
“… those which do not have sufficient height to allow for the legal building in of underneath, would not easily permit the parking of a vehicle and where an average height person would have to stoop to walk underneath. A stump height of 1500 millimetres would therefore seem to be a reasonable benchmark by which to distinguish low-set from high-set.”
He pointed out that the height of the existing dwelling is consistent with the majority of houses in the precinct and added that the proposed lower floor ceiling height of three metres is likely to equate to a new stump height of 3.2 metres which would be excessively high in relation to surrounding houses and result in an increased building bulk that was out of character with the surrounding area. Mr. McDonald emphasised that because of the location of the site and its exposure to both Hume Street and Queens Park, the additional height and bulk of the development would be prominent to view from two street frontages and from the open space to the south.
He also referred to certain design incompatibilities that would result in the development being unsympathetic to the adjacent and nearby low set timber houses. For these and other reasons detailed in his report and in his evidence he concluded that the proposal does not meet the objectives of DCP5 insofar as it does not:
· Conserve and enhance low-set house attributes that contribute to the character of its urban conservation precinct;
· Achieve a building form that is compatible with the low-set character of the surrounding area;
· Encourage sympathetic renovation that contributes to the special character of Toowoomba, but rather alters important proportional characteristics of the house and unsympathetically replaces the traditional method of timber stump support with concrete block work walls;
· Ensure that new works are sympathetic and complimentary to the special characteristics of its Urban Conservation Precinct.
The case mounted by the appellants relied upon assertions that the proposal was not out of character with development that might reasonably be anticipated in the area. Some interesting historical evidence was given by Mr. Hendicott in regard to forms of construction that had in the past occurred in this part of the City.
He also called in aid a consultant architect, Mr. Wolthers, who has experience in heritage matters. For reasons which he explained, Mr. Wolthers was prepared to say that the proposal was a reasonable response to the requirements of the DCP. He said:
“Whilst not a promoter of raised buildings and adding to underneath, I do feel that what is being proposed has merit that should be considered. I think that the proposal has been skilfully executed and the architect and his design team should be commended in achieving a commendable solution to a difficult design brief.
The solution preserves the setting, by not encroaching on the curtilage of the building. The form of the original building is retained, the bulk is not imposing and the proposal in fact facilitates an agreement to scale of the location and the Precinct that is bound by a three story development to the rear (in Godsall Street) and the streetscape with its lofty and majestic trees. I believe the proposal put to Council to be a sympathetic development that integrates well with the character of the streetscape and that the application should not be refused on heritage grounds. While it is acknowledged that the character of the house will change through the creation of a substantial two story residence, I feel that the development proposed is in keeping with the spirit of the development control plan and offer a positive contribution to the precinct.”
The determinative questions in this case are, of course, matters of opinion. While I respect the more liberal views of Mr. Wolthers, I do not believe that they sufficiently answer the concerns raised by Mr. McDonald in his careful analysis of the proposal.
One matter that has introduced an element of confusion into the assessment of this proposal is the form of development which has occurred on land immediately to the east where there is a three-story brick apartment building evidently approved before existing controls were in place.
Mr. McDonald readily agreed that it represents a “detracting streetscape element” and an exception to the prevailing streetscape pattern. He was firmly of the view that:
“Such a form of development, if it were proposed now, would not be consistent with DCP5. It should not be considered as a legitimate precedent or a model for future development in the area”.
I have concluded that the views of Mr. McDonald are to be preferred. I accept that this corner site is an important element of the Godsall Estate Precinct and that the height, bulk and building form of the proposal are not sufficiently compatible with the DCP’s express planning strategies for the area.
In those circumstances I find that the onus of showing that the application should have been approved pursuant to Column 3B of the Table of Zones has not been discharged.
The Council’s decision on the matter however was somewhat curious. The decision notice indicated that a “preliminary approval” for the proposal had been given. However the applicant was also advised that:
“(a)Council’s preliminary approval of the application does not authorise the development to occur;
(b)a development permit for a material change of use of premises is required to be obtained to authorise the development to occur;
(c)Council will issue a development permit for a material change of use of premises upon lodgement of the prescribed application and fee, together with development plans illustrating substantial compliance with the requirements of DCP 5 – Heritage and Character. In this regard Council is prepared to make available the services of its Heritage Adviser to liaise with the applicant’s Heritage Adviser and Architect to achieve a satisfactory design solution; and
(d)Reasonable and relevant conditions of approval will form part of any development permit referred to in (c) above.”
It does not appear to be correct that the applicant ought be given a preliminary approval which calls for the making of a further application for a material change of use.
The approval in this case was one which was called for by Column 3B of the Table of Zones. I believe it is sufficient that the order disposing of this appeal should be; the appeal is dismissed on the ground that the onus of showing that the application for approval as required by Column 3B of the Table of Zones has not been discharged because consistency with the relevant criteria and guidelines in Development Control Plan 5 has not been demonstrated.
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