Kevin McSweeney Pty Ltd v Brisbane City Council
[2011] QPEC 138
•02 November, 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kevin McSweeney Pty Ltd v Brisbane City Council [2011] QPEC 138
PARTIES:
KEVIN McSWEENEY PTY LTD
ACN 010 214 847
(Appellant)
and
BRISBANE CITY COUNCIL
(Respondent)FILE NO/S:
252 of 2010
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
02 November, 2011
DELIVERED AT:
Brisbane
HEARING DATES:
22 & 23 June 2011
JUDGE:
Durward SC DCJ
ORDERS:
1 Appeal dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – BUILDING CONTROL – COUNCIL CONSENT AND APPROVAL – MATTERS FOR CONSIDERATION BY COUNCIL – ON APPLICATIONS FOR DEMOLTIONS – where development approval was sought for demolition of a pre-1946 dwelling within a demolition code precinct – whether the ‘Purpose’ of the City Plan was applicable to the demolition code precinct.
ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – NOTICES AND ORDERS – DEMOLITION, REMOVAL, REPAIR OR RESTORATION – DEMOLITION OR REMOVAL – where development approval was sought for demolition of a pre-1946 dwelling within a demolition code precinct – code-assessable – whether the “traditional character” of the streetscape had been lost as a result of “unsympathetic” houses – what ‘segments’ of the street constitute the ‘streetscape’ for the purposes of assessment.
LEGISLATION:
PLANNING SCHEME:
Integrated Planning Act 1997; Sustainable Planning Act 2009.
Brisbane City Plan 2000.
CASES:
Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors. [2008] QPELR 147; Lynch v Brisbane City Council [2010] QPEC 137; Leach & Ors v Brisbane City Council (unreported, 08 February 2011, Searles DCJ); Luke v Maroochy Shire Council [2003] QPELR 447; Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; Affram v Brisbane City Council [2010] QPEC 47; Razia v Brisbane City Council [2004] QPEC 59, Litbit Pty Ltd v Brisbane City Council [2008] QPEC 74; Armstrong v Brisbane City Council [2003] QPEC 07; Hearne v Brisbane City Council [2010] QPEC 16; Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPEC 44; Loni v Brisbane City Council [1998] QPELR 209.
COUNSEL:
S J Keim SC and P R Smith for the appellant
T Trotter for the respondentSOLICITORS:
P & E Law for the appellant
Brisbane City Legal Practice for the respondent
The appellant had applied to the respondent ("the Council") to demolish a residential building ("the house") in a Demolition Control Precinct ("DCP") on land situated at 30 Eagle Terrace, Shorncliffe. The house was constructed prior to the end of 1946. The building is a Federation Style House. This style of house was typically built between 1890 and WWI (that is, approximately 1915). The Council’s historians apparently date the construction of the house at 1916.
The house
The land upon which the house is built consists of three lots: The house is on lot 4, a garage is on lot 2 and lot 7 is a shared access to Agnes Street at the rear.
While the house has lost its corrugated iron roof and open front veranda, the geometric roof form remains. The house also retains pre-1946 materials and detailing, which - in the context of this case - arguably convey its traditional character.
The site slopes steeply down from the street to the rear. The house has been positioned close to the street, with its main floor at footpath level. The stucco front fence, tapering piers supporting an entrance pergola look like 1930s structures and give the house a traditional "sea-side" character appropriate to Shorncliffe.
The front fence has been kept low to allow views from the front veranda to the Bay. While the enclosure of the front veranda is a change from the pre-1946 appearance of the house, with loss of traditional timber detail associated with open verandas, the glassed-in front veranda is replicated in other houses in the area.
Eagle Terrace
Eagle Terrace is a cliff top esplanade with houses on the south side only and with open space overlooking Bramble Bay on the north side. The curved shape of Eagle Terrace as it follows the cliff line forms a sweeping panorama between the vicinity of Yundah Street to the east and Stephenson Street to the west. Eagle Terrace extends for approximately 1,100 metres along the cliff line.
In Figure 1, the shaded area is said to represent the DCP most relevant in this appeal.
In Figure 2, the "loop" represents the extent of relevant streetscape referred to in the Joint Report of the heritage architects (subject to Mr Scott's qualification about this in his evidence in the hearing of the appeal).
Locality history
The precinct was developed by close suburban development throughout the late 19th and early 20th centuries when Sandgate and Shorncliffe became sea-side holiday destinations for Brisbane residents. This followed the opening of the railway line to Sandgate in 1882 and the increase in popularity of Sandgate and Shorncliffe as both a residential area and a seaside recreational area throughout the late 19th and early 20th centuries. The Queensland Heritage Register notes that Sandgate and Shorncliffe developed as sea-side towns on the English model providing salubrious sea air and a refuge from the oppressive heat of a Brisbane summer. The precinct was well-established by 1946 with a range of large and small detached houses.
In about 1994, a study of "Brisbane Character" was made for the respondent and it nominated three suburbs in Brisbane as having a character different from the Brisbane norm, including Sandgate/Shorncliffe - the ‘most intact traditional sea-side area’. The respondent elected to protect all pre-WWII Brisbane residential character areas with Character Controls in the Town Plan in the 1990s, rather than just those three suburbs. Within the “Brisbane Character”, the Sandgate/Shorncliffe area arguably has a particular character based on this history of development.
The particular character applies to the houses lining the southern side of the street. The houses are typically built close to the street with primary floor level at footpath level or close to it. The houses are largely oriented to look out to the north, to the bay over the street. Some have been glassed-in as sunrooms to allow residents to enjoy the sea-view without the winter sea-breeze.
All of the relevant Eagle Terrace streetscape is in a DCP except for the open spaced parkland at the eastern edge of the street and heritage place at the western edge of the street. That part of the street to the west of Numbers 20 to 22 Eagle Terrace is in the Character Residential (“CR”) Area. That part of the street to the east of Numbers 20 to 22 Eagle Terrace is in the Low-medium Density Residential (“LMR”) Area.
The Application
The application for a Development Permit to carry out the building work involving the demolition was lodged on 03 August 2010 ("the application"). It was code assessable – notifiable, under the Brisbane City Plan 2000 ("city plan"). The city plan was made under the now repealed Integrated Planning Act 1997 (“IPA”) which continues to have effect pursuant to s778 (1) of the Sustainable Planning Act 2009 (“SPA”). The application was made under SPA and was assessed against the city plan. There were seven properly made submissions to the Council. No referral agencies were identified.
Decision Notice
The Council advised in its Decision Notice that the application had been refused for the following reasons:
"1. The proposed demolition of the building does not comply with the purpose of the Demolition Code which states that:
'The purpose of the Code is to: protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity; and ensure the preservation of buildings where they form an important part of the streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946.'
The subject dwelling, does represent traditional building character. The existing house is of timber construction with a tiled-hipped roof form. The detailing and palette of materials is consistent with the type of traditional character housing being constructed at that time, and is reflective of a good and intact example of traditional building character in the Demolition Control Precinct.
Accordingly, the proposed demolition of the subject house will not maintain the traditional character and amenity and will result in a detrimental impact on the traditional streetscape in this part of the Demolition Control Precinct.
The proposed demolition of the building does not achieve Performance Criteria P1 and does not comply with the Acceptable Solutions A1.1, A1.2, A1.3 and A1.4 of the Demolition Code.
2. The proposal would be contrary to the Performance Criteria P1 of the Demolition Code, Chapter 5 of City Plan 2000, in that the building does:
- represent traditional building character
- capable of structural repair
- contributes positively to the visual character of the street.
3. The proposal would be contrary to the acceptable solution A1.1 of the Demolition Code, Chapter 5 of City Plan 2000, in that the building has not been substantially altered and does have the appearance of being constructed prior to 1946. The existing pre-1946 house continues to display traditional building character materials and elements such as timber weatherboards for the external cladding and a hipped roof.
4. The proposal would be contrary to the acceptable solution A1.2 of the Demolition Code, Chapter 5 of City Plan 2000, in that an engineering report has not been submitted demonstrating that the building is structurally unsound.
5. The proposal would be contrary to the acceptable solution A1.3 of the Demolition Code, Chapter 5 of City Plan 2000, in that the demolition of the building will result in the loss of traditional building character within the demolition control precinct where in a Character Residential Area. With the inclusion of traditional materials and hipped roof, the existing house maintains a traditional building form of a single level house elevated on a base.
6. The proposal would be contrary to the acceptable solution A1.4 of the Demolition Code, Chapter 5 of City Plan 2000, in that the street (Eagle Tce) still demonstrates traditional building character. While this part of Eagle Tce is a mix of pre and post-war dwellings, the entire streetscape of Eagle Tce predominantly consists of pre-1946 dwellings."
Grounds of Appeal
The grounds are, in summary and by reference to the numbering of the appeal grounds, that the Council:
20. Had no, or had no proper or persuasive, grounds for refusing the application;
21. Took into account irrelevant matters and failed to consider relevant matters;
25. Such other grounds as the appellant might be raised with leave of the Court.”
29. Or in the alternative:
(a) In respect of the first reason for refusal, the proposed demolition complies with and is consistent with the purpose of the Demolition Code ("code") in the city plan;
(b) In respect of the second to sixth reasons for refusal, the proposed demolition complies with one of the acceptable measures of the code and sufficiently demonstrates compliance with performance criteria P1 of the code;
(d) In respect of the third, fourth, fifth and sixth reasons for refusal, an allegation that the application is contrary to an acceptable measure is not a proper ground for refusal in that an acceptable measure should not be applied prescriptively;
(f) In respect of the fifth reason for refusal, the proposed demolition of the building complies with acceptable measure A1.3 of the code in that because the relevant part of the street upon which the building is located does not present a streetscape suggestive of, or exhibiting, traditional building character or "timber and tin" traditional character, the demolition of the subject building will not result in the loss of traditional building character within the DCP in the area; or will not result in the loss of traditional "timber and tin" building character within the DCP in the area;
(h) In respect of the sixth reason for refusal, the proposed demolition of the building complies with Acceptable Measure A1.4 of the code in that the relevant part of the street in which the subject building is located has no traditional building character.
At the hearing, the appellant abandoned Grounds 24, 26, 28 and 29 (c), (e) and (g).
In the further alternative, the appellant contended that there were sufficient grounds to justify a decision to approve the application subject to lawful conditions, despite any conflict.
City Plan 2000
The general descriptive provisions are contained in ‘Appendix A’.
Assessing the application
The appeal is to be determined under SPA. The proposed development is code assessable. It is assessable against the Demolition Code. Regard must be given to the common material and to the purpose of the city plan, in the code: see infra at [27] to [33]. The common material includes the submissions received and the internal reports made to Council.
The appellant must prove that the proposed demolition complies with any one or more of the Acceptable Solutions or, alternatively, it complies with the relevant Performance Criteria while still meeting the purpose of the code: s 493 SPA.
Codes
The city plan Codes, including the Demolition Code, are referred to in the course of my review of evidence and in discussion. The following are relevant extracts:
Performance Criteria and Acceptable Solutions:
The acceptable solutions are in the right hand column of the Code Table. In some cases meeting an acceptable solution requires compliance with Australian standards or the plan's planning scheme policies.
A self-assessment or proposal must comply with all specified acceptable solutions.
For code assessment a proposal that complies with all acceptable solutions will be approved (although in the Demolition Code, compliance with one or another of the acceptable solutions or purpose is sufficient)
For code and impact assessment, the acceptable solutions represent the preferred way of complying with the performance criteria. There may be other ways of complying with the performance criteria whilst still meeting the code's purpose.
In paragraph 4 there is assessment guidance: that is, an explanation of traditional building character. However, this is not proscriptive. It is a guide only.
The Demolition Code
Section 3 describes the purpose of the Demolition Code:
3. Purpose
The purpose of the code (insofar as is relevant in this case) is to:
· Protect the residential buildings that give the residential areas and the DCP 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 redevelopment in those precincts complements the houses constructed in or prior to the end of 1946.
Section 4 contains an assessment guide or 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 20 metre 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 light weight supports to upper floors and reflect 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 inter war 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 light-weight 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, the presence of the other distinctive building forms, such as Spanish Mission, and their variety of materials highlights the overseas influence on residential design in Brisbane and is 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 set backs provided to existing or proposed side boundaries. Set backs complying with related codes of the City Plan contribute to the character of older suburbs.
The relevant Performance Criteria and Acceptable Solutions are as follows:
5. Performance Criteria and Acceptable Solutions
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.
Where a residential building:
A1.3 The demolition of a building will not result in the loss of:
· Traditional building character within the DCP where in a lower density residential area or character residential area OR
A1.4 The street has no traditional building character.
Relevance of the ‘Purpose’ of the city plan?
Counsel made supplementary submissions about the construction of s 313(2) (e) (v) and (3) (d) of SPA. The point is whether the assessment manager (the Court) must assess against the demolition code and against or in the context of the purpose of the city plan. The relevant provisions are as follows:
"313 Code assessment - generally
(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 -
(e) Any applicable codes in the following instruments -
(v) A planning scheme"
and
"(3) In addition to the matters or things against which the assessment manager must assess the application under ss (2), the assessment manager must assess the part of the application having regard to the following -
(d) the purposes of any instrument containing an applicable code."
Mr Trotter submitted that the "purpose" of the city plan must be extracted having regard to the planning scheme as a whole and adopting a "purposive" approach to the whole of the scheme. He referred to Luke v Maroochy Shire Council [2003] QPELR 447 at [45] - [55]; and Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73 at [17].
He submitted that the primary thrust of s 313 (3) (d) is to codes under other instruments (or statutes) in the sense of "context" (my underlining).
Mr Keim SC submitted that the two cases (referred to above) involved impact assessment, not code assessment. He characterised code assessment as being a "bounded assessment" as described in the Explanatory Notes to SPA, at page 160: that is, the assessment manager is not to consider the whole of the instrument. He submitted that the only "purpose" that was relevant was in the applicable code, in this case, the Demolition Code. To go beyond that in determining the purpose of the instrument would not be consistent with the "bounded" nature of code assessment.
In this case the two experts had referred to the purpose of the Demolition Code. They did not refer to the "purpose" of the city plan. Mr Keim SC submitted that the intent of the "residential zones" was not a relevant factor and that the "purpose" of the city plan did not need to form part of the assessment material in this case.
I agree with Mr Keim SC. In my view the Development Code is a complete reference for the assessment of the Development Application. There is nothing in any other instrument or statute which is applicable or relevant in respect of the issue to be determined in this appeal.
In my view the proper construction of the relevant provisions is that they refer to instruments or statutes other than codes under the city plan. There are no other instruments or statutes relevant to this case.
Internal reports
A number of internal reports were generated for the respondent.
(a) Orr report, 10 September 2010
This report concluded that the house could be demolished. It refers to only two houses at 24 and 26 Eagle Terrace being of Traditional Building Character. It expressed the view that this part of the DCP was already compromised in terms of traditional building character.
(b) Furlan report, 06 August 2010
It concluded that the house did represent a form of traditional building character but that the streetscape was eroded and that there was little traditional building character remaining.
(c ) Anderson report
Reference was made to the "streetscape" maintaining a strong traditional building character. The detailing and palette of materials is consistent with the type of "traditional character housing" being constructed prior to 1946 and is reflective of a good and intact example of traditional building character in the DCP. Mr Anderson, an urban planner within the respondent's Development Assessment Branch considered that the proposed demolition would be contrary to AS A1.3 of the Demolition Code and contrary to PC P1 of the Demolition Code.
The authors of the Internal Reports were not ad idem about compliance or otherwise with the code. At the very least this demonstrates that ‘many options are open, and different minds may take different views: Craig Securities (No 2) Pty Ltd (infra).
Councillors
The demolition of the house was opposed in letters provided by two councillors, Councillor Newton and Councillor Cooper.
Submitters
There were seven submitters to the Development Application. In summary, so far as is relevant, they referred to the following matters.
o The house formed an essential part of the remaining character streetscape (architecture distinctive to the cliff top).
o The house had historical value within Sandgate and was known as the "Dress Circle."
o The house remained an essential part of the surviving streetscape and represented a small area of a distinctive type of architecture along the cliff-top that is rapidly disappearing.
o The fact that the two houses adjoining this house were demolished and replaced with modern houses which do not meet the character requirements of the local area plan is all the more reason to preserve and restore this one.
o Eagle Terrace is a prominent street with many older properties that contribute to the area's charm and unique character as an historic bay-side suburb.
o The stretch of Eagle Terrace from Palm Avenue to Signal Row is most vulnerable to irreversible erosion of character.
Expert evidence for the appeal
I received evidence from two experts: Mr McDonald (for the appellant) and Mr Scott (for the respondent). Both experts are heritage architects.
Joint Report
Matters of agreement
The experts agreed on several fundamental points:
(a) The building represents traditional building character within the meaning of the code notwithstanding that the subject building has been altered by the replacement of its original corrugated steel roof with concrete roof tiles;
(b) The building is structurally sound and/or capable of structural repair;
(c) The relevant Performance Criterion is P1 (third dot point):
"Where a residential building:
P1 The building:
· Must not contribute positively to the visual character of the street".
Matters of disagreement
However, there was disagreement about a number of matters, including whether the building contributes to the visual character of the street. Mr McDonald did not consider there was such a contribution: the building is atypical of the existing modern character of the eastern part of the street. Mr Scott referred to the strong traditional form of the building: its roof, its prominence in the streetscape and its visual relationship to other pre-1946 houses in the east and west of the street. Those buildings collectively contribute to the traditional building character of the street.
There was disagreement as to whether demolition of the building would conflict with the purpose of the code, would affect the character of the DCP and not satisfy Performance Criteria A1.3 (first dot point) and Performance Criteria A1.4.
(d) The relevant Acceptable Solutions for P1 are:
A1.3 (first dot point) and A1.4:
"A1.3 The demolition of a building will not result in the loss of:
· Traditional building character within the Demolition Control Precinct wherein a low density Residential Area or Character Residential Area OR
A1.4 The street has no traditional building character."
In the context of AS A1.3 and AS A1.4, Mr McDonald expressed the view that the demolition of the building would have a negligible and inconsequential impact on the character of the DCP because of what he described as the current modern character of that part of the streetscape. Mr Scott considered that the building in combination with other pre-1946 character houses within the DCP contributed to the traditional building character of this area.
Mr McDonald did not consider that Eagle Terrace had traditional building character, in the context of AS A1.4 because it had a mix of traditional and modern buildings; and the streetscape each side of Palm Avenue was noticeably different: to the west there was a strongly traditional building character (five out of six properties) and to the east there was a strongly modern building character (eight out of twelve properties). The subject building is in the eastern part of the street. Palm Avenue was a wider than normal road reserve with a prominent 2-storey modern house on the eastern corner at the intersection with Eagle Terrace. The alignment of Eagle Terrace also changed east and west of Palm Avenue.
Mr Scott considered the whole streetscape had traditional building character despite post-1946 changes. Individual houses of traditional building character varied in concentration but individually contributed to that character.
(e) There are three relevant points in the purpose of the code (first, fourth and ninth dot points):
"The purpose of the Code is to:
§ 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 redevelopment in these precincts complements the houses constructed in or prior to the end of 1946.”
In the context of the first dot point of the purpose of the code, Mr McDonald considered that the modern buildings had eroded the traditional character and amenity in this part of the DCP. Mr Scott disagreed. He referred to the locality having a different character from other suburbs of Brisbane. There was contribution to the traditional character of Shorncliffe and the character of Brisbane.
In the context of the fourth dot point of the purpose of the code, Mr McDonald did not consider that demolition of the building would conflict with the code because the eastern part of Eagle Terrace is predominantly a post-1946 streetscape and not intended to be preserved. Mr Scott expresses an opposing view: the building was an important part of the pre-1946 streetscape.
In the context of the ninth dot point of the purpose of the code, Mr McDonald considered the pre-1946 houses in the eastern part were only a minor and insignificant part of the DCP. Mr Scott considered that enough of the traditional character of Eagle Terrace remained to warrant the retention of the building.
Expert reports
Mr McDonald’s report
Mr McDonald wrote that the built character of Eagle Terrace was a mixed character in different parts of the street generated by a combination of traditional and modern buildings. This mix of characters expressed as a clearly-traditional building character in the approximately 80 metres of Eagle Terrace to the west of Palm Avenue and as a clearly-modern building character in the approximately 200 metres of Eagle Terrace to the east of Palm Avenue. The subject building was contained within, and related visually to, the modern eastern part of Eagle Terrace.
He produced a number of images in his report which comprised what he called the "range of static views of the street: immediate, proximate and distant." Immediate views were those made from opposite the building. There were large unsympathetic modern 2-storey houses at 28 and 32 Eagle Terrace, on either side of the subject building, which had unsympathetic modern concrete roof tiles. He considered this view to have the most visual impact. Proximate views were those seen by looking to the left and right of the subject building from opposite the building. This view was dominated by pre-1946 buildings but also took in the unsympathetic modern houses at 28 and 32 Eagle Terrace. Distant views were those seen by looking up and down the length of the street. This view revealed a range of building types - traditional and modern unsympathetic buildings - with the park at the eastern extremity and the heritage listed former Masonic Hall at the western extremity.
The dispersion of traditional buildings among modern unsympathetic buildings (or vice versa I would have thought) was not a ‘discernible feature’ in Mr McDonald's opinion. He considered that for ‘traditional building character’ to be a valid description, traditional buildings should clearly predominate in the view over non-traditional buildings.
There were 90 properties in the DCP, characterised by building age (pre or post-1946), use, broad building character, residential zone and control (for example, DCP). Fifty four properties were pre-1946 houses (17 in the CR Area, 29 "timber and tin" in the LMR Area and 8 "non-timber and tin" in the LMR Area), 34 post-1946 houses and multiple dwellings, one heritage place and one open space parkland. Forty seven of the 90 properties had buildings under demolition control (including the subject house).
The 34 post-1946 houses he considered to be generally unsympathetic to the precinct's pre-1946 character. He did not consider the precinct to be very intact. Chapter 2, section 4.2.2.4 of the city plan has a 67 percent threshold (of pre-1946 houses) for the establishment of such precincts. The figure in the subject precinct is 61 percent. Mr McDonald considered that the precinct generally expressed traditional pre-1946 building character but is not particularly important as a DCP in Shorncliffe, Sandgate or the city generally. There was a substantial amount of post-1946 development within the precinct, most of which was unsympathetic to traditional building character. The Eagle Terrace part of the precinct (east of Palm Avenue) was one of the least-intact parts of the precinct and the part where unsympathetic modern buildings were the most extensive and most prominent.
Mr McDonald described "character" as being more about the collective quality of elements in combination and less about the individual quality of single element. Whilst the building individually expressed traditional building character (despite the alteration to the roof), its setting in the street did not.
He recognised that Eagle Terrace was a prominent part of the precinct, but that the building was poorly located in the eastern end. Hence he did not consider that the loss of one of 51 buildings under demolition control was significant and that there would not be a loss of traditional building character. He considered that AS A1.3 was satisfied.
Mr McDonald considered that for a characterisation of "traditional building character" in the eastern part of Eagle Terrace to be valid, there would need to be a majority (if not 67 percent) of pre-1946 traditional houses. He did not consider that this part of the street expressed traditional building character. He considered that AS A1.4 was satisfied.
He considered that the eastern part of Eagle Terrace expressed a modern building character and that the subject building did not contribute positively to the visual character of that part of Eagle Terrace. He considered that P1 (third dot point) was satisfied.
Mr McDonald’s testimony
Mr McDonald disagreed with Mr Scott’s view about the houses at numbers 7 and 9 Palm Avenue being pre-1946 houses. He said they were not pre-1946 houses. An aerial photograph taken in 1946 showed only one building. Mr Scott in oral evidence agreed only to the extent that the houses at numbers 7 and 9 Palm Avenue had a different "roof form" appearance from the 1946 aerial photograph, but not further in that respect. Mr McDonald was willing to concede that they could be older houses that were brought onto the respective sites after 1946.
Mr McDonald disagreed with Mr Scott about the house having "particular character" because he says that is not picked up in the city plan or demolition code. In cross-examination, Mr McDonald agreed that traditional building character is relevant to a street with buildings on one side of the street only.
He agreed that "streetscape" is viewed in a moving fashion and that the curve in Eagle Terrace makes the houses "more visible" than they would be in a straight street. The width of Palm Avenue "punctuated" the streetscape. He maintained that the buildings to the west of the Masonic Hall were outside the relevant streetscape.
In the Demolition Code, AS A1.4, reference is made to "the street" whilst in P1, reference is made to "buildings". He expressed the view that it was the contribution of the building to the street which was the relevant factor.
Mr Scott’s report
Mr Scott's "views" of Eagle Terrace were made by travelling up and down the street to gain familiarity with it: he said that the “views” change in the course of the short journey and an understanding of character is thus developed.
His impression of the character of the street was that it is clearly a streetscape established prior to WWII. The assessment is partly based on traditional subdivision and street patterns of development and the traditional suburban garden settings of the buildings but is predominantly based on the high proportion of pre-1946 buildings along the length of the street.
He considered that to assess a proposal to demolish the house, it was necessary to look at the general area and the immediate streetscape around the house. The issue was whether the house was part of a section of the street with strong traditional character, or not.
He believed the character immediately around the house was that it is ‘close to and visually related to’, two other character houses to the east of the intersection with Palm Avenue (numbers 26 & 24 Eagle Terrace). This group of character houses is included in the CR Area immediately to the east of Palm Avenue.
The house was also ‘close to and visually related to’, a "good group" of character buildings immediately to the west of the intersection with Palm Avenue (at least 5 character and heritage buildings from 38 to 50-52 Eagle Terrace, and arguably 11 character or heritage buildings from 38 to 70 Eagle Terrace). This group of character houses is included in a CR Area immediately to the west of Palm Avenue.
The character buildings at the western end of the DCP around the house (94 and 110-122 Eagle Terrace) help to identify the street as established prior to 1946. However, they were visually removed from the house and are not directly affected by its retention or removal from its landscape.
Mr Scott considered that the area immediately to the east and west of this area of strong, traditional character has a predominance of non-traditional character. In these areas, the traditional character has been eroded by relatively recent, non-character buildings.
Mr Scott's opinion is that the streetscape extends across Palm Avenue and that the house in the context of a "streetscape" was within a section of Eagle Terrace with a predominance of traditional character. He did not consider that the width of Palm Avenue was a visual barrier (or perhaps alternatively described as a visual "interruption") between the streetscape to either side of the intersection.
Mr Scott’s testimony
Mr Scott disagreed with the suggestion that traditional building character had been "eroded", in the context of the respondent’s internal reports (supra). He did not agree with the respondent's internal reports and recommendations. Whilst the streetscape was 'punctuated' by new non-character buildings, it still maintained traditional building character:
“There is no 'interruption' to continuity as suggested in the Orr report. Palm Avenue is a 'visual separation' but not to the extent of being fatal to continuity. Mr Scott said that Palm Avenue had always been in existence and it was of itself a part of the character of Eagle Terrace. The streets in the precinct have different widths."
He considered that the visibility of the house, for example west of the Masonic Hall, takes the relevant streetscape beyond the "agreed" area referred to in the Joint Report. This is the "caveat" to which I have previously referred. Mr Scott links the house with the "west" whilst Mr McDonald appears to link it with the "east." "Streetscape" is a concept of "composite understanding" according to Mr Scott, although one may use different tools to assess streetscape.
Mr Scott said the house was not "isolated" in the streetscape context. He by way of contrast referred to Number 12 Eagle Terrace which he says could be demolished because of its presence alone amongst non-character buildings. The roof of the house he said had a strong visual appearance. It was not overwhelmed by its neighbour of Number 32 Eagle Terrace. The change from tin to terracotta roof was not substantial. He referred to Number 40 Eagle Terrace by way of example, that house having a terracotta roof of about 1920s vintage.
He said that the DCP is an "overlay" that triggers the demolition code: it does not determine character per se.
Submissions
Appellant
Mr Keim SC submitted that Mr McDonald's approach was to assess "the reality of the buildings" as well as their visual qualities. He submitted that Eagle Terrace can have a different character for the purposes of the demolition code: that is, the "street may be a section of a street rather than the whole of the street": Leach v BCC [2011] QPEC 55; Ken Ryan Associates Pty Ltd v Brisbane City Council [2007] QPELR 147.
The Performance Criteria and Acceptable Solutions in the Demolition Code were alternative, not cumulative requirements. I agree.
He submitted that Mr Scott's approach was, in the classification of CR area, trying to extend the traditional character qualities of Eagle Terrace beyond the Palm Avenue intersection.
He submitted that appearance or visual quality is what the Demolition Code identified as being significant: Affram v BCC [2010] QPEC 47:
"The existence of remnant characteristics of a former "traditional 'timber and tin' building character” does not necessarily mean the character [with which the code is concerned] remains."
He was critical of Mr Scott's "walking and viewing" methodology which it was submitted was not orthodox and was artificial.
He submitted that Mr McDonald's statistical analysis and qualitative approach - to the DCP as a whole, the location of the house and what was said to be its "unsympathetic alterations" that diminished its traditional character - led to AS A1.3 being satisfied; or alternatively that P1(third dot point) and AS A1.4 were satisfied.
In Lynch v BCC [2010] QPEC 137 Judge Robin QC concluded that:
"A1.3 refers to a loss of traditional building character that is significant, concerning or unacceptable rather than to any loss at all."
Mr Keim in an Appendix to his written submissions, referred to a number of cases that it was submitted were appropriate to the determination of traditional building character.
"1. The fact that a building may not be a 'remarkable building worthy of retention' is irrelevant to construction of the code. The qualification 'remarkable' is not one found within the code: Berlese v BCC [2002] QPEC 73 at [11].
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: Berlese (supra).
3. The explanation of the term 'traditional building character." In s 4 of the code and the various elements of that explanation may not be seen as a useful guide, it is only an explanation. It is not, and does not purport to be a definition…I do not read the code as suggesting that 'traditional building character' denotes some kind of prototype from which only minor variations of style are permitted: Razia Developments v BCC [2004] QPEC 59 at [18].
4. The Court must be astute to prevent aesthetic consideration from intruding. A pre-1946 even if 'ugly', it is to be assessed only on the facts as recognised in the demolition code as important: Litbit Pty Ltd v BCC [2008] QPEC 74 at [18].
5. The fact that a site might be suitable for development for broader reasons and is capable of being sympathetically redeveloped is irrelevant: Berlese at [16].
6. It is relevant to inquire whether the street in question has been 'robbed' of the traditional character by re-development such that traditional building character has been lost: Berlese at [14].
7. It is not part of the demolition code to require a pre-1946 house to be of architectural merit, nor is it necessary that the house should exhibit each of the features identified in the demolition code's explanation of 'traditional building character": Armstrong v Brisbane City Council [2003] QPEC 07 at [17]; and Berlese at [11].
8. There is no definition of traditional building character in the code. There is no 'proscriptive character' from which only 'minor deviations of style' are permitted: Razia (supra): Litbit (supra); and Hearne v BCC [2010] QPEC16.
9. A commonsense approach or an approach that makes the most sense of provisions that may be obscure, doubtful or contradictory is required: "many options are open, and different minds may take different views": Craig Securities (No 2) Pty Ltd v BCC [2006] QPEC44.
10. The fact that a single house presents with traditional building character is not determinative of the question arising under AS A1.3: Ken Ryan & Associates Pty Ltd (supra).
Respondent
Mr Trotter submitted that the development proposal was in conflict with the purpose of the code and that P1 – 3rd dot point and AS A1.3 and AS A1.4 were not satisfied.
He referred to the mix of residential classifications on Eagle Terrace: numbers 4 to 18 were in the LMDR Area, numbers 20 to 70 were in the CR Area and numbers 76 to 88 were in the LMDR Area.
Mr Trotter submitted that "one can immediately see against the background of city plan, the connection between the Character Residential Areas and the DCP is more cogent, in that it is the only classification under city plan where the entirety of a residential area is included in the DCP. The code reflects this difference in A 1.3 by providing for a different Acceptable Solution to apply in the Low Medium Density Residential Area; in this area the referable phrase is "traditional timber and tin building character." In the CR Area and the Low Density Residential Area, the referable phrase is "traditional building character."
Mr Trotter referred to the construction of the Performance Criteria and Acceptable Solutions in the Demolition Code. In Leach & Ors v Brisbane City Council (supra), Judge Searles wrote at [11]:
"The above performance criteria and the acceptable solutions contain alternative rather than cumulative requirements, so that the appellants need to satisfy P1 third dot point or meet acceptable solutions A1.3 second dot point or A1.4 to succeed in the appeal."
As Judge Robin QC said in Lynch v Brisbane City Council [2010] QPEC 137 at paragraph 4:
"Those provisions offer a developer wishing to demolish a pre-1946 residential building (as the subject is) a number of possibilities: each of the three dot points in P1 (whether or not any of the acceptable solutions is satisfied) and the four possibilities recognised under Acceptable Solutions the site being a Low Medium Density Residential Area, it is the second dot point that is in issue here."
He referred to the matter of agreement by the experts that the relevant part of Eagle Terrace for assessing the visual character of the street in this case is that part of Eagle Terrace shown in figure 2 (supra): that is, the curved shape of Eagle Terrace as it follows the cliff line forming a sweeping panorama between approximately Yundah Street (in the east) and Stephenson Street (in the west). He said that of 18 houses included in the character residential area, only four are "non-character." Even on the eastern side of Stephenson Street, four of 12 houses are "non-character."
Mr Trotter submitted that Mr Scott did use an approach that is consistent with authority, referring to Leach at [34]:
”… in determining the street's character for the purposes of P1, the task is to consider the visual character of the street as a whole, not the character of houses or groups of houses in isolation."
Mr Trotter referred to Loni v BCC [1998] QPELR 209 at p 212. Senior Judge Skoien wrote in terms of a person walking down the street and looking about, in order to assess the visual character of the street.
Mr Trotter said that whilst the traditional building character to the west of Palm Avenue is stronger, traditional building character remains to the east where No's 24, 26 and 30 are all in the DCP and are all in the character of residential area. He concluded with the submission that the panorama of the curved Eagle Terrace has traditional building character.
Discussion
I have already referred to the appellant’s onus of proof. More specifically the appellant, in the context of the matters of agreement and disagreement referred to by the heritage architects, has the onus of proving that one or another of the relevant provisions has been satisfied: that is, the Purpose of the code, PC P1 (third dot point), AS A1.3 or AS A1.4.
I note that on the view the lawyers from each party who attended with the Court walked both ways along the length of the street, from the vicinity of the park to the hotel and return. In my view the "streetscape" is a "continuum" and should not be assessed in a segmented way. The latter is an artificial way of assessing a streetscape such as Eagle Terrace. I do not agree with Mr Keim SC’s criticism of the method used by Mr Scott. That method is an holistic way of creating or receiving an impression of the streetscape and is appropriate in the circumstances. I agree with the statements about visualisation methods described in Leach and in Loni to which Mr Trotter referred in his submission.
The Decision Notice refers to the traditional building character of the house in the context of its timber (weatherboard and external cladding) construction and hipped roof form, albeit of concrete roof tiles and not tin roofing, and the detailing and ‘palette’ of materials used in its construction.
The house has not been substantially altered. It has the appearance of a pre-1946 construction of a traditional building form of a single level house elevated on a base.
There is no evidence that the house is structurally unsound.
I do not regard the alterations to the house as "unsympathetic." There is sufficient traditional building character about the house to make its loss "significant" or "concerning." Its location is sufficiently in visual contact in the panoramic or kaleidoscopic context of that part of Eagle Terrace to both east and west of Palm Avenue, to accommodate its visual status as an element of the traditional building character that remains in Eagle Terrace.
The city plan refers to a ‘minimum group’ of three houses and to a requirement for at least two thirds of houses, in the context of Traditional Building Character. The meaning of ‘group’ is unclear. Mr Trotter postulated that there was no necessity for ‘three houses’ to be adjacent one to another. The ‘two thirds’ requirement also is unclear – so much depends on the scope or boundary one may draw within or around the relevant Precinct. Minds may differ about that. In the internal report of Ms Orr reference is made to a ‘cluster’ of two houses. Did she mean ‘group’ or is ‘cluster’ another or alternative descriptor? In the code itself it appears that there is no reference to ‘group’ at all.
Those expressions are somewhat artificial. Their meaning is unclear. However, a common sense construction, it seems to me, favours a liberal meaning: that is, a ‘group’ does not require the three house to be contiguous or to share common boundaries; and the ‘two thirds’ is not intended to be a precise arithmetical calculation.
I do not think it could be reasonably argued that the length of the Eagle Terrace streetscape is predominantly pre-1946 houses or buildings. Of course, the experts have focused on ‘sections’ of the street to inform their impression of the streetscape.
The grounds of appeal focus on what is described as “the relevant part of the street” and Mr McDonald’s evidence identified a more compact longitudinal section of Eagle Terrace as being the relevant streetscape. Mr Scott’s focus was upon a broader or longer streetscape.
I accept that the ‘street’ for the purposes of assessment may be a section of a street. That is tolerably clear. Whilst the experts may not have been ad idem as to the extent, scope or boundary of the area that was assessed, despite the purported ‘agreement’ about that in the joint report, nevertheless I do not consider on either view of what constituted the ‘street’ that the house is ‘isolated’. I consider that it has retained sufficient features to be properly regarded as a house with Traditional Building Character and is part of a streetscape – as assessed by Mr Scott – that has Traditional Building Character. I accept the evidence of Mr Scott about Palm Avenue. It has always been and remains a part of that streetscape. Its continued presence as a broad road reservation would not have detracted from the Traditional Building Character of houses during its existence in the past and does not do so now.
The issue about the houses at numbers 7 and 9 Palm Avenue is not material. I think it is comfortably explicable by adopting Mr McDonald’s concession that they may have been placed on those sites some time after the relevant aerial photograph, which I accept shows the roof of a single building on the sites rather than two buildings, was taken. Mr Scott’s assessment is that the two houses demonstrate pre-1946 Traditional Building Character. Of course, a literal reading of the Purpose of the Code and the expressions “buildings and streetscapes were constructed and/or established in or prior to the end of 1946” and “precincts of houses constructed in or prior to the end of 1946” would arguably mitigate against the inclusion of these two houses in the assessment of Traditional Building Character in this case. However, whether they are in the assessment or out of it does not influence the views that I have formed.
To the extent that it is necessary to refer to the further alternative ground of appeal, the proposed demolition is in conflict with the planning scheme and there are no sufficient grounds to justify granting the application. The Code provides specific protection of pre-1946 houses that exhibit traditional building character, subject – in this case - to the considerations referred to in this appeal. The proposal does not satisfy any one of those considerations and no other sufficient ground upon which approval could be justified has been established by the appellant.
Conclusion
I consider that the house forms an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946. The house should be retained and protected. The appellant cannot and has not complied with the purpose of the Code.
The street has Traditional Building Character. The house represents Traditional Building Character, is structurally sound and contributes positively to the visual character of the street. Its demolition would result in the loss of Traditional Building Character within the DCP. The appellant cannot and has not complied with either of PC P1, AS A3.1 or AS A4.1.
It follows that the appellant has not discharged the onus of proof. The appeal should be dismissed.
Orders
1 Appeal dismissed
‘Appendix A’
Brisbane City Plan 2000
Strategic plan
[a] The strategic plan provides for the vision for the City and how it is to be achieved.
The relevant provisions in the city plan are as follows:
Chapter 2, page 3: Vision - Brisbane the Liveable City.
o The living environment is to be human in scale, with a sense of place based on the City's sub-tropical character. This environment is to blend traditional "timber and tin" buildings with vibrant and exciting new developments.
Chapter 3: DEOs
[b] The City wide DEOs that follow are complemented by Area DEOs (in Chapter 3) that provide an increasing level of specificity.
o Measures to achieve DEOs also cascade through the Plan as: City wide strategies, Elements of the city, Levels of assessment, Development principles and Precinct intents, alternative levels of assessment at local plan codes, Purposes, Performance Criteria, Acceptable Solutions and information requirements, Infrastructure contribution requirements, guidelines and designations for community infrastructure.
o 3.1.1 DEO (Natural Environment and Waterways): Brisbane's environmental quality and natural assets are protected and restored and contribute effectively to no net loss of biodiversity, the management of public health and the social and cultural well-being of the community.
o 3.1.1 DEO (Land use and built environment): Brisbane's land use pattern and built environment promotes its unique environment, such as its "timber and tin" architecture, topography and urban layout, and features a sustainable network of Residential Areas, Centres, Employment Areas and Transport Links.
o 4.2.2.4 Maintaining Character: Each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the City, topography, vegetation, social composition, history and proximity to a local centre. Development should respect and be compatible with the local character.
o In older suburbs, the unique character is derived mainly from the topography, urban layout and "timber and tin" architecture. Much of this "timber and tin" housing remain and new development will reflect traditional design elements while allowing for innovative design responses.
o Whilst "timber and tin" housing is a distinctive feature of Brisbane's traditional building character, other less common housing styles and materials, such as masonry construction, are important and worthy of retention.
o Provisions apply where pre-1946 buildings will be retained or new dwellings reflect pre-1946 architectural themes.
o DCPs are those locations in older suburbs that contain pre-1946 housing with distinctive traditional architecture.
o A Precinct contains either:
· A minimum group of 3 houses, and at least two-thirds of the precinct contains pre-1946 houses; or
· A building built prior to 1900.
o DCPs also contain non-residential buildings or structures, which contribute to the character of the area and have a connection with the local community.
Level of Assessment Tables
[c] The first column of the Level of Assessment Tables lists the types of development that are assessable against the planning scheme and in case the second column lists the applicable/relevant codes.
[d] In some cases the level of assessment table requires only material change of use, operational work, building work or reconfiguration of a lot to be assessed against the planning scheme. If the level of assessment table does not specifically refer to one of those components, any material change of use and/or building work (associated with a use or structure specified in the level of assessment table) will need to be assessed against the planning scheme (other than minor building work and any other exempt development).
[e] Assessment of building work against the planning scheme results in preliminary approval for building work. A subsequent development permit for building work will be issued only when the building has been assessed against the Building Act.
Chapter 3, page 27: Residential Areas
[e] The Plan has five different Residential Areas:
· Low Density Residential Area
· Character Residential Area
· Low-Medium Density Residential Area
· Medium Density Residential Area
· High Density Residential Area
[f] An important characteristic of the city's older suburbs is the traditional architecture. DCPs are locations in the older suburbs where pre-1946 housing is still dominant. Specific provisions apply in the DCPs to preserve and complement much of this architectural character, by requiring:
· An application for demolition of a building
· Compliance with the Residential Design - Character Code for new residential development.
[g] The planning scheme maps show DCPs.
[h] Residential areas will be comprised mainly of dwellings.
Chapter 5.2: Low Density Residential Area
5.2.1Intent
The predominant form of development is detached houses, one or two storeys in height.
Groups of buildings in the low density residential area are included in DCPs. In these locations, pre-1946 housing will be retained and new development will reflect pre-1946 architectural character.
5.2.2DEOs
3. DCPs pre-1946 buildings are largely retained and new buildings reflect many of the Precinct's architectural themes.
[i] In the Code Assessment Table under Applicable Codes, in this case the Code, "demolition or removal in the DCP, or of a commercial character building or of a multi-unit dwelling (where a registered boarding house), is notifiable.
Chapter 5.3: Character Residential Area
5.3.1Intent
The Character Residential Area will primarily accommodate pre-1946 houses. New houses, single unit dwellings or multi-unit dwellings will incorporate the pre-1946 dwelling in the development wherever possible and will reflect pre-1946 architectural themes.
All character residential areas are included in the DCP.
5.3.2DEOs
2. High quality, in tact traditional housing is protected.
Chapter 5.4: Low-Medium Density Residential Area
5.4.1Intent
Parts of the low-medium density residential area are included in the DCPs. At these locations pre-1946 "timber and tin" housing will be retained …
5.4.2DEOs
1. Low-medium density living environments comprise houses, among multi-unit and single-unit development at a house - compatible scale, predominantly of no more than two storeys. Higher densities and three storey buildings occur near Multi-purpose Centres, near public transport and along arterial roads.
2. The Area has a mix of housing types and forms at different levels of affordability with adequate safety, privacy, quiet and comfort. New residential developments are well designed and sensitive to the City's climate.
3. Natural features such as creeks, gullies, waterways and vegetation are retained where they add to the character and amenity of the Area.
4. In DCPs pre-1946 "timber and tin" buildings are largely retained and new buildings reflect many of the Precinct's architectural themes.
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