Kangaroo Point Residents Association v Brisbane City Council

[2001] QPEC 51

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Kangaroo Point Residents Association & Ors v. Brisbane City Council [2001] QPEC 051
PARTIES:	KANGAROO POINT RESIDENTS ASSOCIATION and PETER WARWICK MASTERS  Appellants and BRISBANE CITY COUNCIL                            Respondent and FUNDUS PTY LTD (ACN 010 709 887)  Co-Respondent
FILE NO/S:	No. 5090 of 2000 and No. 4 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:
DELIVERED ON:	25 July 2001
DELIVERED AT:	Brisbane
HEARING DATE:	16 – 18 July; written submissions 19 July 2001
JUDGE:	Senior Judge Skoien
ORDER:	Appeals dismissed
CATCHWORDS:	Special use land containing old building of historical interest; future uncertain; presentation of part as wing of apartment building.
COUNSEL:	Appellants in person Mr M Rackemann for the respondent Mr T Trotter for the co-respondent
SOLICITORS:

1. These two appeals, heard together, were by objecting submitters against the decision of the Council to allow the partial demolition of a building at the corner of Leopard and Lockerbie Streets, Kangaroo Point, Brisbane, the refurbishment of the remaining part of the building and the extension of it for the purposes of an apartment building.

The Site

1. The site comprises an area of 2,285 m²; has a frontage to Leopard Street of 35.2 m and to Lockerbie Street of 64m and is described as Lots 3, 4 and 5 on RP 1160.  It is included in the Special Uses (Church, School and Convent Purposes) Zone under the former 1987 Town Planning Scheme and is included in the Community Use Area  designation under the City Plan 2000.  It falls to the east from its Leopard Street frontage by about 4 m over its length.

1. On the Leopard Street frontage there is a two-storeyed wooden building with verandahs on three sides and with two wings which run to its rear.  The wing which runs down Lockerbie Street is a single storeyed wooden construction which, for the final five metres becomes a two-storeyed wooden construction.  A similar wing runs down the southern side of the site, and thus forms a U-shaped building but this wing is not obvious from either of the streets.

The Locality

1. Leopard Street runs north/south and is a heavily trafficked arterial road.  Lockerbie Street forms a T-junction with it and runs east to join Main Street, an even busier road than Leopard Street.  A continuation of Leopard Street, River Terrace begins at about the site and travels north.  River Terrace hugs the top of the Kangaroo Point cliffs and enjoys spectacular river and city views.

1. To the south of the site and adjoining it, is St Joseph’s School and beyond it is St Joseph’s  Church.   To the west of the site, over Leopard Street, is a wedge of land carrying Urban R4 and R5 designations.

1. To the north, on the other corner of Leopard and Lockerbie Streets is a large new multi-storey apartment block called “Riverview”.  On the corner it has a low rise unit (1-2 storey.).  The next structure down Lockerbie Street in Riverview is another low rise unit (2-3 storeys).  The balance of Riverview has unit blocks of 5-7 storeys.  The land for this development is Urban R5.

1. Further to the north on River Terrace the land fronting the road is generally of Urban R5 designation, with a couple of lots zoned for special use, for example a large church which is under construction.  Land to the east of the site, along Lockerbie Street is part of an Urban R3 island mainly containing one or two storeyed houses.  To the north and south of this island is Urban R4 designation.  Along Main Street the uniform designation is Urban R5.

History

1. A building was constructed on the site in about 1890 and for most of its history provided accommodation for members of the Roman Catholic Order of Sisters of Mercy who were involved in teaching at St Joseph’s Primary School which neighbours the site.  The sisters allowed part of the site at its easterly end to be used as a playground for St. Joseph’s school and that has continued to this day.

1. About twenty-five years ago the Sisters ceased to have any formal association with the school as a result of internal re-organisation within the Catholic Church.  Until  1995 some seven Sisters continued to occupy the building, after which alternative accommodation was provided for them in other locations better suited to their particular needs and obligations associated with their work.  The building was thus left vacant.  At about this time the Order made comprehensive enquiries about other uses to which the building could be put.  Such enquiries were directed to those in control of St Joseph’ School and the local parish.  No interest was expressed in the building or its use and it has been vacant now for over four years.  It now presents a rather sorry picture of moderate dilapidation.  It seems, however, that the building is structurally sound. 

The Proposal

1. The proposal is to demolish the southern wing and the eastern-most portion of the Lockerbie Street wing and to retain and refurbish the existing building, (in particular the entirety of the main section which fronts Leopard Street and most of the wing which fronts Lockerbie Street) and to extend the building down Lockerbie Street for the purposes of an apartment building.  That extension will take the form of two tower blocks, each four storeys high.  The total number of proposed units is fifteen.  The proposed density is equivalent to something greater than R4 but something less than R5 designations within the Residential B zone under the 1987 Town Plan.

1. There were five submissions made in respect of the application, four of which opposed it.  One of them was on behalf of the appellant Kangaroo Point Residents Association  (an unincorporated Association).  On the evidence I cannot be sure how many people within the association are actively opposed to the proposal although it seems that the number is at least seven.  Of some importance is that St. Joseph’s school, in its submission, simply sought the imposition of a few conditions to the development.  It is notable that a slim area of playground will remain to the east of the proposed apartment block forming a break between it and the nearest house in Lockerbie Street.

The Issues

1. The live issues in the appeal can be summarised under the headings of demolition, proposed use and intensity of development.

Demolition

1. The old convent building is not a heritage building in the sense of enjoying the benefit of any heritage listing or protection although it does have qualities which give it some heritage significance.  The Council a few years ago expressed some interest in placing the building on the Heritage Register but no action has ever been taken to achieve this.  It is in the somewhat precarious position of being a building of some heritage value but which is neither protected nor maintained and is situated on land which is otherwise attractive for development.  It is, I would think, in real danger of sustaining damage or even total destruction, while it remains unoccupied and in its dilapidated state.  Such buildings, notoriously, sometimes meet that fate.

1. The 1987 Town Plan contained mechanisms for the protection of some buildings of heritage value.  In particular, so far as buildings within the Central Business area were concerned, s. 22 of the Town Plan provided protection to heritage places nominated in Table 22.4.  Section 7 of the Plan, which dealt with the residential zones, contained provisions which, in general terms, sought to protect both heritage and character buildings within the older suburbs of Brisbane.  While the site is within that area, it was not included in any of the residential zones and so did not enjoy the protection of those provisions.  In addition to those provisions, there were provisions in various Development Control Plans which afforded protection to some buildings, but not to this one.

1. Except  for those specific controls, none of which applied to the site, the Town Plan did not control demolition or removal of buildings (s.29.1.2 and sub-paragraph (k) of Table 29.1.2).

1. The City Plan came into force on 30 October 2000, a week after the Council decided to approve the development application.  I consider that it has some relevance to these appeals.  The position under the City Plan is similar to the position under the 1987 Town Plan.   Section 2.3 of Chapter 3  provides that certain development is to be exempt for the purposes of the City Plan.  Reference to these provisions show that the City Plan provides no protection to the building on this site.

1. Consequently, both at the time the application was made, and at the present time, the demolition or removal of the entire convent building is not something controlled by the planning scheme.  Despite that, Fundus is prepared to retain and refurbish most of the convent building (including the entirety of its frontage to Leopard Street and most of its frontage to Lockerbie Street), and to adapt the building to suit modern residential needs whilst being subjected to numerous controls  imposed by the Council by way of condition to ensure that the redevelopment occurs in a way which is sympathetic to the heritage values of the building.  To my mind this is a responsible approach on the part of both Fundus and the Council.

1. Both of the appellants’ opposition to the partial demolition of the convent appears to stem from the “all or nothing” approach by Mr Fletcher, the consultant town planner.  That approach was, as I understood it, that if the building has some significance it should be retained in its entirety; otherwise it should be allowed to be demolished in its entirety.  That approach is not mandated by the Burra Charter which specifically contemplates a range of measures including adaption (Article 21) and change (Article 15).  Both heritage architects, Mr Allom and Mr Jones, gave evidence to the effect that the “all or nothing” approach is not one supported within their professional disciplines.  The architects also rejected the suggestion that not enough research had been done on the significance of the building in order to determine the acceptability of the proposal.

1. The evidence from these heritage architects is quite clear.  They differed somewhat on the extent to which the convent building has heritage value.  Mr Allom contended that the parts of the building to be retained made a contribution to townscape and conceded some historical interest but considered that the building was otherwise not of heritage value. Mr Jones saw the building as having a broader heritage value, particularly in the local context, while recognising that its primary significance related to those parts of the building visible from the street.  Both of them saw the extent of retention of the building as acceptable and the proposed refurbishment and maintenance as of benefit.  There is, I should say, no evidence which would lead me to a finding that the site has any connexion with a person as historically memorable as Sister Mary McKillop, or anyone else of that importance.

1. In my view the retained portions of the building, when restored to their original condition, will be an attractive part of the streetscape and provide an interesting historical link.  I am satisfied that the part to be demolished in Lockerbie Street has neither of those attributes and that demolition of the southern wing, because it is largely hidden from view, will not be an unreasonable loss.

Proposed Use

1. Both the Town Plan and the City Plan contain provisions which, in general terms, favour the replacement of one community use with another, rather than the loss of community use land to another purpose.  Accordingly, the intent of the Special Uses zone under the 1987 Town Plan included the statement that:

“If land being used for community facilities or public purposes is no longer required for the purpose designated on the zoning map, it should be redeveloped or recycled for another community facility or public purpose.  Only where it can be demonstrated that there is no existing or likely future demand for any such use, will consideration be given to the rezoning of that land for an alternative form of development.”

1. Under the City Plan, the site has been given a CU4 designation which means that the designated community use is “education purposes”. The provision under the City Plan which mirrors the intent of the 1987 Town Plan which I set out in para. [21] is to be found in the provisions dealing with community use areas in Chapter 3.  In particular, the Statement of Intent (s.8.1) states that:

“When the community use area is no longer being used for its intended purpose, it’s replacement should be another community use, particularly in an area where there is a demonstrated need for these services.”

1. Those statements of planning intent are worthwhile objectives, but it must be recognised that they are no more than statements of intent.  The extent to which they apply to, or should be given weight in the assessment of, a particular application will vary from case to case.

1. Because this is an application equivalent to a rezoning under the 1987 Town Plan the relevance of the intent of the zone from which the land is to be taken is questionable.  See William McEwans Pty Ltd v. Brisbane City Council 2 APAD 165 where Carter DCJ said at p. 172:

“Each zone is as important as any other zone and, speaking generally, it is not correct to say that an application to rezone from a particular zone calls for special consideration.  That is not to say that the considerations will be the same in each case.  Different considerations will apply having regard to the many and varied considerations which will be relevant to the particular application, and in a particular case, the intent of the zone from which it is sought to exclude the land, just as the intent of the zone into which it is sought to include the land, will receive greater or lesser weight, having regard to all relevant factors.  But one should not make a priori assumptions, based on the intent of the zone from which it is proposed to exclude the subject land.

1. In this case, it is clear that any community use associated with the convent building ceased some decades ago.  The convent building, whilst included in a larger area designated for education purposes, until its abandonment, has been used for residential purposes.  Although the Sisters of Mercy continued to conduct good works in the community, those works were not associated with this building.  The building was not one to which the community has generally had access.  It was the private living quarters of the Order until that use was abandoned.  In those circumstances, its proposed re-use for residential purposes could hardly be seen as alienating community-use land in any practical sense.  Finally, it has to be recognised that nobody has taken up the chance of acquiring the building for any use at all, let alone a community use, until Fundus came along.  On this point I accept the evidence of Mr Hobbins.  If any serious offer to buy the land had been made, I am sure he would have known of it. 

1. Taking all of that into account I see nothing in the 1987 Town Plan (or for that matter the City Plan) which militates against this proposal.

Intensity of Development

1. The proposed development represents an intensity which is equivalent to something between R4 and R5 intensity (using the RDA designations under the 1987 Town Plan).  Reference to the zoning map under the Town Plan reveals that this is quite consistent with the pattern of zoning in the area.  The area classifications under the City Plan follow a similar pattern.  In paras. [5]-[7] I have set out a summary of the designations of land in the relevant area.

1. As can be seen Lockerbie Street exhibits a mixture of R3 and R5 designations, Leopard Street has a mixture of R3, R4 and R5 while River Terrace and Main Street both exhibit the R5 designations.  The pattern of those designations is such that the higher designations follow the heavily trafficked roads whereas the lower designations (R3 in particular) are confined to the middle parts of the residential cross streets which link Leopard Street/River Terrace to Main Street.  That is a pattern which has emerged over the last decade as a result of land along the busy roads being changed from a generally R4 designation to a generally R5 designation.  The proposal is consistent with that pattern.

1. The site is also distinguished from the R3 parts of Lockerbie Street because of its proximity to Leopard Street/River Terrace, its land use, the road widths (greater at the western end of Lockerbie Street than in the rest of the street) and by the separation from the R3 sites to the east (by two allotments belonging to the school).

1. It is difficult to see, in those circumstances, how redevelopment which retains the important parts of the convent and achieves an intensity somewhere between R4 and R5 on the subject side could be seen as being beyond the reasonable expectations of the community.

1. The appellants sought to concentrate on the alleged inconsistency which would be produced in the streetscape by comparing the subject development with the detached houses in the R3 area and indeed to some of the lesser components of the development on the Riverview R5 site immediately opposite in Lockerbie Street and suggested that the proposal does not achieve an acceptable gradation.  The argument seems to start with the premise that Lockerbie Street is one in which a consistency of streetscape should be expected.  That however, runs contrary to the zoning, designations and land uses in the area.  These appeals do not concern a typical Residential A street (for example) where development could be expected to be of a consistent size, bulk and scale.  Instead, it is a street which is characterised by a mix of RDA designations and indeed a mix of zones (both Residential B and Special Uses).  The street is in an area which also features a mix of residential densities with greater densities towards the eastern and western extremities of the streets which link Leopard Street/River Terrace and Main Street.

1. As Mr Taylor pointed out, the subject site is no smaller than a number of other R5 sites  in the area which (unlike this site) directly adjoin R3 sites.  This site has the advantage of some separation from R3 land.  Further, in this case, the proposed development has been reduced in scale to ensure that it “fits” with the convent building and does not adversely affect its architectural values.  It is separated from the residential development further to the east and is quite complementary in scale to the special uses and the residential uses in its immediate environs.  The suggestions of direct amenity impacts on the school and the neighbours were not substantiated and not supported by any evidence from those who, it was claimed, may be affected.  Finally there is no evidence that the proposal is opposed by a substantial body of residents.

1. The Town Plan shows an intention to be flexible with development intensity where the retention of heritage buildings is involved (see s. 22.7 and s.22.9 of the Town Plan and Planning Policy 22.01).  It is entirely proper, in my opinion, for a Council to encourage a developer to come up with a plan which will retain buildings of historical, architectural or other particular merit by meeting such an application by the developer with some favourable flexibility elsewhere (provided of course that the flexibility is not otherwise objectionable).  In this case, in my opinion, the agreement by the Council to an apartment building of this size and bulk is not objectionable.

Summary

1. These appeals concern a long unoccupied and dilapidated building, slowly becoming more derelict, which has some historical, cultural and architectural values, but which is not protected by any law from demolition.  Its owners had been unable to find any use for it and no-one had made any realistic offer to acquire it, to preserve and restore it and to continue its former community use.  Fundus now intends to restore the most visible and culturally valuable part of the building and to incorporate it in an apartment complex.  The bulkier part of the apartment is itself not out of keeping with the statutory land use designations or the actual land use for the area, nor out of keeping with any relevant statutory or planning provision.  I am satisfied that the proposal is meritorious.

Conclusion

1. Both appeals are dismissed.