Kwok v BCC
[2001] QPEC 50
•20 July 2001
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Kwok v BCC & Ors [2001] QPEC 050 PARTIES: DANNY KWOK
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and
WALTER HUGENTOBLER
First Co-Respondent
and
MICHELLE TREDENICK
Second Co-Respondent
and
LACHI HART
Third Co-Respondent
and
SARA HART
Fourth Co-Respondent
and
RODERICK YANN
Fifth Co-Respondent
and
MASAHIRO & JUDITH UEDA
Sixth Co-Respondent
and
MARIA DONATA ALBERTI
Seventh Co-RespondentFILE NO: 3056 of 2000 DIVISION: Planning and Environment PROCEEDING: Developer’s Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 20 July 2001 DELIVERED AT: Brisbane HEARING DATES: 2 – 4; 10 July 2001 JUDGE: Senior Judge Skoien ORDER: Appeal dismissed CATCHWORDS: Streetscape; character houses; non-compliance with performance standards for height, boundary clearances. COUNSEL: J. Haydon for the appellant
M. Rackemann for the respondent
Solicitors for 1st, 2nd, 3rd and 4th co-respondents
Fifth, 6th and 7th co-respondents in personSOLICITORS: Hemming & Hart for the appellant
Brisbane City Legal Practice for the respondent
King & Co. for 1st, 2nd, 3rd and 4th co-respondents
This is an appeal by the applicant (an architect on behalf of Mr and Mrs Stamatellos) against the refusal of the Council to approve an application to relocate an existing residence and to build a new residence. The co-respondents were objecting submitters in respect of the application.
The Site
The site is on the southern adjustment of Dalrymple Street (which runs east/west) Wilston, about mid way between its intersection with Dibley Street and Eighth Avenue. It comprises two allotments, lot 95, (the more westerly) and lot 96 (the more easterly) each of identical dimensions. Each is rectangular with a frontage of about 10 m, a depth of about 40 m and an area of about 405 m2. The site slopes downhill from Dalrymple Street, falling about 5 m. over its length. The site is in the Residential A zone and within the designated Heritage and Character Building Area.
There is, and has been on the site for many years, a small detached wooden dwelling house which straddles the boundary between lots 95 and 96. It is a worker's cottage dating from about 1900 but is in a rather dilapidated state. The red corrugated iron roof is rusted, the original front verandah which extended across its entire front has been enclosed, a bathroom has been added as a side extension and an artificial cladding has been fixed to the exterior of the cottage. Mr and Mrs Stamatellos intend to remove the un-original additions to restore it to its original state and have begun that exercise.
The Locality
Wilston is an old suburb which contains a large number of attractive, traditional Brisbane “tin and timber” houses as well as many modern houses. Not every house in the suburb is of high quality but generally speaking it is a very attractive part of the city.
For almost the entire length of Dalrymple Street there is a substantial cross fall from north to south. Consequently the allotments to the north of the street are considerably higher than those to the south and the effect is accentuated by the fact that the land to the south continues to fall moderately steeply. Over almost the whole length of the street the carriageway is divided, the northern section being (over the material section) some 2 m. higher than the southern section. So a pedestrian on the northern footpath has to look up to see the houses on that side. A pedestrian on the southern footpath looks directly at the roofs of those houses which are built with their fronts at ground level. Only those houses which are built well above the ground at the front (some up to approximately the equivalent of a storey high) have their fronts at eye level.
I have referred to the “material section” of Dalrymple Street. In my opinion that section is the block between Dibley Street and Eighth Avenue. The other block (between Eighth Avenue and Paling Street) is in my opinion too remote from the site to be material to this appeal. I should, however, record that the character of that block is not markedly different from the character of the material section.
Over the material section there are, on the north side of the street four houses which predate 1940 (“character houses”) and four which are more modern. On the south side of the material section there are four character houses (including the cottage on the site) and five more modern houses. For completeness I add that on the block further to the east there are three character houses and five more modern houses on the northern side while there are five character houses and three more modern houses on the southern side.
The term “character house” comes from the 1987 Brisbane Town Plan which used that term to describe pre-1940 houses in certain areas of Brisbane, including Wilston. The new City Plan (which commenced on 30 October 2000) uses the term to describe pre-1946 houses in the same areas. Whether the qualifying date be 1940 or 1946 the houses I have described as character houses fall into that category.
The Proposal
Mr and Mrs Stamatellos propose to move the existing cottage wholly onto lot 96, to restore it to its original condition and then probably to let it to tenants. They propose also to build a new house on lot 95 and to live in that house.
Particular mention must be made of the house immediately to the west of the site (the postal address being No. 9) and the house immediately to the east of the site (the postal address being No. 17). Each is a good example of a well restored and maintained character house. The front of each is at or about street level. Number 9 dates from the turn of the twentieth century and is owned by Ms. Tredenick. The rear of this house is very high off the ground and has two built storeys. The higher storey has, at the rear, a large sun-room and there is a large deck at the extreme rear. Those areas enjoy natural light, airiness and extensive views. The house at No. 17 dates from about 1920 and it also has a high rear area with two built storeys. It is owned by Mr Hugentobler.
The evidence of witnesses differed on whether the material section of Dalrymple Street should further be narrowed for the purpose of considering the “streetscape” (a term used in the Town Plan and the City Plan) which might be affected by the application concerning the site. It is a question very largely of individual perception and aesthetics but I consider that, while the effect of this application most closely concerns the section of the streetscape comprising No. 9, the site and No. 17, the streetscape comprising the entire southern side of the material section also has high relevance. The streetscape comprising the entire northern section of the material section has a lesser, but still a genuine, relevance.
The design of the new house submitted by architects (Mr Poulos) on behalf of Mr and Mrs Stamatellos has been varied from time to time in an attempt to resolve the objections of the Council. In its current form it is to be a rectangular three storeyed building predominantly constructed of rendered brickwork. The ground floor is to have, at its northern (or street frontage) end a double enclosed garage behind which are two bedrooms, laundry, bathroom, rumpus room and deck, with a pool in the back yard. The first floor has at its street frontage end a balcony behind which is a lounge, a living/dining room, and a rear deck. The top floor (the footprint of which is smaller than that of the lower two floors) is to contain two bedrooms, a bathroom and the third, main, bedroom with ensuite. On the evidence of Mrs Stamatellos it seems that one or more of the designated five bedrooms could be intended for use as a study or studio.
Because of the downward slope of the land from the street, the lower portion of the northern, or street, elevation of the ground floor is invisible from the street level on the southern side of Dalrymple Street. So the building presents more as a two storeyed building to an observer from the southern side of the street. It reflects much of the “Noosa style” of architecture, with use made of timber (especially on the top floor), of shutters and battens. This is intended to present the house as a modern design which incorporates the use of lightweight materials set in different planes, with projections and insets, painted sympathetically, to overcome any bland or flat appearance of the facade. The roof is to be a single skillion sloping downwards from front to rear. The side walls, are to have timber shutters over the windows to provide privacy to its occupants and to neighbours.
Because the intended separation between the re-located cottage and the intended new house is narrow (on which more later) it is proposed that there be reciprocal easements between lots 95 and 96 to provide access for maintenance of the houses.
The Issues
While the disputed issues are numerous they can be grouped in two categories:-
(a) design issues, that is the extent to which the proposal fails to comply with certain performance provisions of the Town Plan and whether that failure should be excused;
(b) character issues, that is whether the design of the new house complements or enhances the character of the area, notably the relevant streetscape.
Those two categories overlap to some extent and they also involve aspects of amenity, that is, whether the proposal cuts across the reasonable expectations of those affected by it.
Town Planning Provisions
At the time of lodgement of the application (January 2000), relevant planning controls applying to the development were contained within the provisions of the 1987 City of Brisbane Town Plan. Subsequently, on 30 October 2000, a new planning scheme (Brisbane City Plan) was introduced. According to Section 4.5.52(2) of the Integrated Planning Act, the current appeal is to be decided in accordance with the provisions of the superceded Town Plan although the Court may give weight, if considered appropriate, to the provisions of the new City Plan.
Under the provisions of the Strategic Plan, the site was contained within the Urban Area designation, the overall intent of which was to nominate those locations that ‘may be developed for urban purposes’. Whilst specific discussion of character housing issues was not contained in the Statement of Intent, reference was made under the heading of “Social and Character Aspects of Urban Areas” as follows:
‘The character of areas, which contributes to their livability, embraces a number of elements which may be subject to change. These elements include people, housing, vegetation, streetscape, architectural styles, community services and facilities and open space, places to meet and socialise, safe bikeways and pedestrian facilities, security and local identity features. In some areas, there is greater diversity of these elements while in other areas more uniformity of these elements is evident.
Development will be required to respect and be compatible with the character of the neighbourhood in which it is located, particularly in developed areas...”
Further sections of this part of the Plan encouraged the retention of existing character houses and reinforced the requirement for the design of new houses to complement and enhance the character of the area. Equally, the provisions of the Plan actively encouraged the creation of a wide range of dwelling types and housing diversity within designated urban localities of the City, particularly in areas close to centres and serviced by public transport networks.
The aims and objectives in the Town Plan for development with the Residential zones of the City and, more specifically, in the Residential A zone were set out in Sections 7.1 and 7.3 of the Town Plan. Those provisions laid down the following preferred planning outcomes for development within the Residential A zone:
(a) the predominant form of residential development was to be detached housing, generally limited to a height of 8.5 metres;
(b) detached housing on small lots would be allowed provided the proposal maintained a high standard of amenity; and
(c) encouragement was to be given to redevelopment proposals which preserved and/or incorporated heritage and character buildings.
In order to implement the above principles, town planning consent (impact assessment applications) were required to be submitted and assessed for the following development forms:
(i) detached houses in excess of 8.5 metres in height;
(ii) detached houses on small lots (ie. less than 450 m2 and with frontage less than 15 metres);
(iii) removal or demolition of any building located within Council’s Heritage and Character Building Area;
and the proposal involved each of those.
Section 7.2.6.3 of the Town Plan set out the circumstances in which approval for removal or demolition was likely. These provisions, which affect the cottage, were (with my comments added within square brackets):-
(i) the building does not constitute a heritage or character building [the cottage is a character building] or;
(ii) the extent of demolition is minor and unlikely to have a significant adverse affect on either the heritage significance (if a heritage building) or visual appearance (if a character building) of the building [the demolition is minor and converts the cottage back to its original form], or;
(iii) the building is structurally unsound [this is not so] or;
(iv) (a) the removal/demolition was unlikely adversely to affect
the visual character of the streetscape or a component of the streetscape; and
(b) an application was made at the one time for
demolition/removal and the proposed redevelopment; and
(c) the design of the new building would complement or
enhance the character of the area.
[this subpara (iv) raises contentious issues].
The various provisions in the Town Plan were supported by certain Local Planning Policies that had been adopted to provide more detailed guidance to the manner in which individual applications would be assessed. Those policies of relevance included Policy 7.06 - Height of Detached House, Duplex House or Attached House; Policy 7.29 - Small Lot Housing Development and Erection of Houses following Demolition and Policy 7.33 – Heritage and Character Buildings.
Planning policies, of course, were for guidance only and were not binding. They were, however, a valuable guide, being generally applied by the Council and, generally deferred to by developers when planning their developments.
Reference to the City Plan (as to which see para [16] above) reveals that the relevant provisions differ more in detail than intent.
Under the City Plan, the site falls within the Low Density Residential Area (the equivalent of the Residential A zone under the Town Plan). The site together with the other properties in Dalrymple Street, are included within a demolition control precinct. Under the relevant level of assessment table.
(i) demolition or removal requires a notifiable application for code assessment against the demolition code;
(ii) the development of each of the allotments for a house on a small lot within the demolition control precinct requires a notifiable application for code assessment against the Residential Design – Character Code (which encourages development in the demolition control precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing), the Residential Design Small Lot Code (which is the equivalent to planning policy 7.29 and seeks, inter alia, to ensure that new development is compatible in scale and design with neighbouring houses) and the house code (which deals with, inter alia, the height of new houses).
Further, under the City Plan, the site is included within the Grange District Local Plan which, inter alia contains the following development principles:
“2.1 The character of the Grange District is to reflect its main period of development between the 1870’s and 1945, known as ‘timber and tin’ or ‘timber and tile’;
2.2.1 New housing is to remain in keeping with traditional character elements.”
Design Issues
Contrary to the provisions referred to in paras [19] and [20] above, the proposed new house has a maximum height greater than 8.5m. While diagramatically that excess does not seem great (see exhibit 23) it has the effect of necessitating the use of something other than a traditional hip or gable roof in order to keep the excess down to the level contained in the architect’s plan.
So far as the new house is concerned the required side setbacks vary according to its height above the ground. On each side the setback is adequate for the lower two floors but the top floor offends the requirements. The wall of this floor is required to be a distance of 2.5m from the boundary, but it is only 2m. from each side boundary as planned. Exhibit 23 shows graphically that this intrusion exists over the whole length of the eastern and western elevations of the top floor as well as a minor portion of the rear of the first floor. This result is obviously caused by the desire to create a three storeyed building with a top storey which is too wide for the site.
If one ignores the top floor the new house has sufficient side clearances to its boundary with the house at No. 9 and its boundary with the proposed moved cottage. However the cottage has its own problems with side boundary clearances. It is planned to be placed with an eastern boundary setback of 1m. (which complies). However the western boundary setback (that is, towards the new house) is of only .429m (which does not). That is why the reciprocal easement to which I referred in para [14] is proposed.
So far as the setback between the moved cottage and its western boundary is concerned there is some merit in the argument that reduced distance between two houses in common ownership (the owner to live in one of them) is less offensive than the same reduced distance between a new house and an unrelated neighbour. However it overlooks the streetscape aspect and a sketch of that streetscape with the two proposed houses so close (exhibit 7) demonstrates to me that the reduced distance is not only noticeable, but unpleasantly so. Of course a reduction in width of the top floor of the new house would lessen that unpleasant effect to some extent, but the proximity of the cottage to the boundary would remain and be noticeable.
One possible approach to the problem would be to shave one side of the cottage to the extent of 600mm. which would permit the required 1m. setback on each side. I accept Mr Job’s evidence that this would have a visible effect on the symmetry of the cottage and would spoil its character.
Another suggested approach was to site the cottage so as to give the 1m. clearance to the western boundary with the new house. That would, of course, involve a poaching of almost 600mm from the clearance with No. 17 to the east. That seems to me to be a reasonable solution to the problem of the cottage’s side setbacks because the house at No. 17 is well away from its western boundary. There is a car port between the house and that boundary and the car port is virtually obscured from view because of the fall in the land. So far as the streetscape is concerned, the result would be a distinct improvement over what is planned. The actual separation from cottage to the house on No. 17 would be adequate. I do not consider that the reduced clearance between the cottage and the eastern boundary fence (and the car port) would pose an unreasonable problem.
So it seems to me that the admirable intent of Mr and Mrs Stamatelles to re-locate the cottage onto Lot 96 and to restore it can be achieved with the relaxation of the side boundary clearance requirements of the Town Plan, suggested in para. [32] and with a consequent actual improvement to the streetscape. Of much more concern is their proposal for the new house on Lot 95.
To design a house containing the rooms which I have described in para [12] to fit on an allotment as small as 405 m2 is, Mr Poulos said, challenging. The fact that, as planned, it exceeds the prescribed dimensions in its overall height and the width of the top floor suggests to me, as it did to some of the witnesses, that the planned house is just too big for the site. As I have said, the very size of the house is the reason for the use of a skillion roof, which presents as a flat roof to the street, and it is also the reason for the top floor being so wide. Obviously the use of a pitched roof would add even more height to an already too-high structure and it would do nothing to reduce the width of the top floor. So I find that the performance requirements of the Town Plan should not be relaxed to permit the building of the new house.
While it would be within the reasonable expectations of people (particularly an occupant of No. 9) that a house could be built on lot 95, in my view that reasonable expectation would be of a house conforming to the prescribed dimensions. A house designed within those dimensions would be lower and may well be smaller in bulk, that is, volume. The reduction in height, especially, would reduce the sensation of the extreme bulk and density of the new house, the feeling of intrusion of which Ms. Tredenick spoke. I would find it difficult to believe that an architect of Mr Poulos’ ability cannot design a house which reasonably accommodates his client’s wishes, that is, containing the living space contemplated by the current plans (or not a great deal less) which would permit the use of a roof incorporating traditional lines and which stays within the prescribed dimensions. So the plan of the house unreasonably affects the amenity of the area.
I do not place any emphasis on the question of shadow in my consideration of the effect which the building of the new house would have on the house at No. 9. Ms. Tredenick’s evidence on morning sun is not precise by any means. On Mr Hebron’s evidence it seems to me in any event that there would be little difference between a “complying” house and the one currently planned.
Streetscape
As Mr Haydon submits, the Strategic Plan contemplates housing of different types. The policies allow that solutions other than the suggested designs may be acceptable. And as Mr Job pointed out, the houses in Dalrymple Street now include a number of examples of modern and recent design. His view of the design for the new house is that it is an admirable example of contemporary (that is, year 2001) design, and I accept that it is. But that does not really answer the critical question whether that design complements, or fits in, with the existing houses in the material streetscape.
It is of some relevance to take into account what has been achieved, with Council approval, by developers of small residential lots elsewhere in the area. However it must be emphasised that while such developments may suggest a solution to a design problem, in no way do they create a precedent. Each case depends on its own facts and circumstances.
I note, and regard as important, that every existing house in the material section of Dalrymple Street has a pitched roof in one of the traditional styles. That is especially true of the cottage, of No. 9 and of No. 17. It is even true also of the eastern end of Dalrymple Street. All told, there is a sense of continuity of roof styles. In my view the addition of a house with a roof of flat appearance would constitute a departure from that sense of continuity.
I have the same opinion about the northern elevation, the facade, of the new house generally. Despite Mr Poulos’s design (which I accept is, of its type, attractive) that facade presents as square and is quite unlike any of the other houses in the street, particularly those I have identified as most material and relevant. Although as I said in para. [13] the fact that it is a three storeyed building might not be obvious to a passerby on the southern side of Dalrymple Street, it would still present as an abnormally high house. To a passerby on the northern side and to occupants of the houses on that side it would clearly be a three storeyed house. No other facade is of a three storeyed building so both the height and shape of the facade would also be a departure from the sense of continuity given by the rest of the houses.
And finally, I have the same feeling about the narrow clearances between the new house (as currently designed and especially with its wide top floor), and the house at No. 9 as well as between the new house and the cottage (in its presently planned position). Such narrow clearances are not seen between any of the other houses and again it would be a departure from the sense of continuity elsewhere in the street.
The three effects I have described as a departure from the sense of continuity (which can be seen graphically in exhibit 7, a drawing showing the elevations of No. 17, the moved cottage, the new house and No. 9) would in my opinion be a jolting departure. That is not a phrase used by any of the witnesses but it does, I think, capture the opinions they expressed of the new house and the moved cottage. That jolting departure would be quite at odds with what the Town Plan and the City Plan have sought to achieve.
It is regrettable that the efforts of Mr Poulos and Mr and Mrs Stamatellos have thus far failed to bear fruit, especially as, I believe, they genuinely want to produce something which will fit in with, will complement, the streetscape. Their restoration of the cottage alone would do much to improve the streetscape and a sympathetically designed new house on lot 95 would also. It is to be hoped that these proceedings and these reasons will assist them to achieve the result of restoring the cottage and of building a suitable house in which to live which will complement the existing streetscape.
Conclusion
The appeal is dismissed.
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