Leach v Brisbane City Council
[2011] QPEC 55
•8 February 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Leach & Ors v Brisbane City Council [2011] QPEC 55
PARTIES:
Janet Leach, David Morris and Yvana Jones
(Appellants)V
Brisbane City Council
(Respondent)FILE NO/S:
BD 2475 of 2010
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
8 February 2011
DELIVERED AT:
Brisbane
HEARING DATE:
31Janurary 2011
JUDGE:
Searles DCJ
ORDER:
APPEAL ALLOWED
CATCHWORDS:
PLANNING AND ENVIRONMENT – DEMOLITION CODE – whether the demolition will result in the loss of traditional building character.
PLANNING AND ENVIRONMENT – DEMOLITION CODE – whether the building contributes positively to the visual character of the street.
COUNSEL:
S.M URE – Appellant
T.Trotter – Respondent
SOLICITORS:
Appellant – HWL Ebsworth Lawyers
Respondent – Brisbane City Legal Practice
Nature of the appeal
The appellant’s appeal pursuant to s 461 of the Sustainable Planning Act 2009 (SPA) against the refusal by the Council of a Development Application dated 18 June 2010 for the preliminary approval for building work for the demolition of two pre-1946 houses situated at 5-11 Orleigh Street, West End being lots 113, 114, 115 and 240 on RP10977. They have a total area of 1545sqm, are classified as Low-Medium Density Residential under City Plan 2000 and are within a Demolition Controlled Precinct within the City Plan. Pursuant to s 493 of SPA the appellants bear the onus of proof.
Orleigh Street runs in an east-west direction between Montague Road to the west and Hoogley Street to the east. It is separated from the Brisbane River by Orleigh Park and the Ferry Terminal and City Glider Bus service shelter located at the eastern end of Orleigh Street. At the western end of Orleigh Street at its corner with Hoogley Street there is a vacant allotment on No. 1-1A Orleigh Street.
The Houses
No. 5 Orleigh Street is the first house at the eastern end of Orleigh Street and abuts vacant allotment No. 1-1A Orleigh Street. It is a pre-1946 double gabled house with a verandah which has been enclosed some time after it was built. It has weatherboard wall sheeting and a corrugated iron sheeted roof. There is a corrugated iron sheeted roof over the main front window which has hoods over it. The side windows have traditional hoods sheeted with corrugated iron. The house is raised on stumps and battened under, has a central core with attached verandah characteristic of timber and tin houses.
The second house at 9-11 Orleigh Street is also a traditional timber and tin double gable house with a central core and attached verandahs which have been enclosed. It is raised on stumps with battening underneath. The gable and pitched roofs are sheeted with corrugated iron. Both the double hung window at the front and the side windows have traditional corrugated iron hoods.[1]
[1] Veal Report Exhibit 4 paras 3.2; Macdonald Report Exhibit 3 paragraph 3.2 (Agreement that subject houses are traditional “timber and tin”
Submitters
The application resulted in 25 submissions and a petition containing some 160 signatures. All submitters opposed the demolition.[2]
[2] Appeal Book exhibit 2 Tab 2
Council’s grounds for refusal
By letter dated 17 August 2010 the council advised the appellants of its refusal of their application enclosing a Decision Notice setting out reasons[3]. The reasons given for the refusal were:-
[3] Appeal Book exhibit 2 Tab 3 pages 108-111
“a) The proposal is contrary to the Purpose of the Demolition Code, in that:
i) The demolition does not protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity.
ii) The proposal does not 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.
iii) The proposal does not ensure that precincts of houses constructed in or prior to the end of 1946 are retained.
b) The proposal does not comply with the Demolition Code, in that it does not meet one of the following:
A1.1 - The buildings have not been substantially altered and have retained their appearance of being constructed prior to 1946.
A1.2 - An engineering report was not submitted to support the proposal.
A1.3 - The demolition of the building will not result in a loss of traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low-Medium Density Residential Area.
A1.4 - The street has traditional building character through the existence of a number of pre-1946 dwellings.
P1 - The subject buildings represent ‘traditional building character’ as described in Section 4 of the Demolition Code because it features:
* A traditional building form being single houses elevated on stumps;
* A solid core with attached or integrated verandahs raised above
the ground on timber supports;
* Medium pitched gabled roof form; and
* Traditional building materials being painted timber walls and
corrugated steel roofing.
The applicant did not make representations about the structural integrity of the buildings. However, when viewed from the street, the buildings appeared to be in good repair.
The buildings exhibit traditional building character which contributes positively to the vidual character of the street. The subject buildings reinforce the traditional building character of houses nearby in the street.”
Appeal grounds
By Notice of Appeal filed 30 August 2010 the appellants appealed the Council decision. In effect they relied upon the following grounds;
(a) The application complied with performance criteria P1 of the Demolition Code in that:-
(i) Acceptable Solution A1.3 was satisfied because the demolition of the houses would not result in the loss of traditional “timber and tin” building character within the Demolition Control Precinct;
(ii) Acceptable Solution A1.4 was also satisfied because the street where the houses are located has no traditional building character.
(b) In the alternative, if the application did not comply with Performance Criteria P1 of the Demolition Code, it did not conflict with the purpose of the Demolition Code for the following reasons:-
(i) The houses did not contribute to the traditional character and amenity of the Demolition Control Precinct to an extent which warrants retention of them;
(ii) The houses do not form an important part of a pre-1946 streetscape; and
(iii) The dwellings do not form part of a precinct of houses constructed in or prior to the end of 1946 such as to warrant retention of them.
Experts’ appointment and meeting
Two experienced architects were retained by the parties to assist the court, Mr Ivan Macdonald by the appellants and Mr Basil Veal by the Council. Both prepared comprehensive reports[4]. They met and jointly inspected the subject houses on 17 November 2010 and provided a joint report of 25 November 2010[5].
[4] Exhibits 3 and 4
[5] Appeal Book Exhibit 2 Tab 9
Matters agreed by experts
Among the matters agreed by the experts were:-
(a) that the subject houses are both pre-1946 residential dwellings in a Low-Medium Density Residential Area and within a Demolition Control Precinct (DCP);
(b) that the application is code assessable against the Demolition Code in City Plan (the Code) in force in June 2010;
(c) that the subject houses are within the West End-Woolloongabba District Local Plan Area but are not within any designated precinct of the Local Plan and do not have any of the special mapped qualities as set out in Maps a-g of the Local Plan;
(d) demolition of the subject houses does not generally conflict with the development principles set out in the Local Plan and that any such demolition is to be assessed against the Code ;
(e) that Performance Criterion P1 of the Code is the only applicable criterion in this matter. Further within PC P1 only the third dot point is applicable;
(f) that the subject houses represent traditional building character within the meaning of the Code;
(g) that the subject houses are both structurally sound and/or capable of structural repair and that no engineering report was produced to dispute that;
(h) as to the Acceptable Solutions associated with Performance Criterion P1 in the Code, only A1.3 (second dot point) and A1.4 are applicable;
of the ten points setting out the purpose of the Code only the first, fourth and ninth points are applicable;
(j) that the extent of the Demolition Control Precinct is the area bordered by Hoogley Street, Orleigh Street, Montague Road and Gray Road; and
(k) that in assessing the visual character of the street for the purposes of Performance Criteria P1 of the Code, the relevant part of Orleigh Street is both sides of Orleigh Street from the eastern side of Hoogley Street to the western side of Montague Road. As will be seen later there emerged some difference of opinion as to the interpretation of that boundary description.
Relevant passages of City Plan
The following passages of City Plan are relevant:-
“
Chapter 3 page 10, first paragraph:(a)
“For code assessment the Code is the Purpose, Performance Criteria and Acceptable Solutions. The Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways to comply that meet the Code’s Purpose. It is up to the applicant to demonstrate how alternative solutions achieve this. A proposal that fails to comply (except in insignificant details) and cannot be conditioned to mitigate impacts will be refused.”
Chapter 2 page 16, paragraph 4.2 – Residential Neighbourhoods:(b)
The challenge4.2.1
“… the critical elements are liveability, residential character, safety, servicing and accessibility – developing a sense of community. The key issue raised by the community in preparation of the B 2011 Plan is the desire to protect the City’s unique character …
The response4.2.2
Residential neighbourhoods are the most extensive of the City structure elements. They contain the elements that help make Brisbane so liveable: residential areas and related amenities and facilities such as convenience shopping, local parklands, schools, churches, hotels and clubs.
The components of the residential neighbourhoods’ strategy are to:
· …
· …
· maintain character;
· …
· …
4.4.4Maintaining character
“Each neighbourhood has character derived from its architecture ….
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 will remain and new development will reflect traditional design elements while allowing for innovative design responses.
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 attention.
…
Demolition Control Precincts are those locations in older suburbs that contain pre-1946 housing with distinctive traditional architecture.
…”
Chapter 3 Page 27, paragraph 5 - Residential Areas(c)
“Residential Areas are the main components of Residential Neighbourhoods in the Strategic Plan.
The Plan has 5 different Residential Areas:
· Low Density Residential Area;
· Character Residential Area;
· Low-Medium Density Residential Area;
· Medium Density Residential Area;
· High Density Residential Area
…
An important characteristic of the City’s older suburbs is the traditional architecture. Demolition Control Precincts are locations in the older suburbs where pre-1946 housing is still dominant. Special provisions apply in the Demolition Control Precincts to preserve and complement much of this architectural character by requiring:
· An application for demolition of a building;
· …
5.2.2 Desired environmental outcomes
1. …
2. …
3. In Demolition Control Precincts pre-1946 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.”
(d) Demolition Code
“1 Application
This Code will apply in assessing building work for the demolition … of a building where:
• on a site in the Demolition Control Precinct where any part of the residential building was substantially constructed in or prior to the end of 1946, or
• where the building was substantially erected prior to 1 January 1900
3 Purpose
The purpose of this Code is to:
• protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity
• protect the non-residential character buildings in the Demolition Control Precinct that contribute to the general character of the locality and provide or have provided a variety of services to the community.
• ensure the preservation of non-residential character buildings or structures where they form part of a character streetscape.
• 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
• ensure the contribution of houses constructed prior to the end of 1946 that reflect design styles and materials other than ‘timber and tin’ architecture is recognised and retained in the Lower Density Residential Area and Character Residential Area
• in conjunction with the Residential Design-Small Lot Code, ensure that houses moved onto small lots are consistent with the requirements for houses on small lots.
• allow demolition or removal of post-1946 residential building or structurally unsound buildings
•retain traditional commercial character buildings
• 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
•retain low cost housing in the form of boarding houses.
4Assessment Guidance – an explanation of traditional building character
Street Context
The traditional scale of a street was first established by its subdivision pattern of 16, 24 or 32 perch lots, with 10, 15 or 20 m frontages respectively. This pattern was reinforced by the traditional building form of a single level house elevated on stumps. This created a reasonably uniform scale, accentuated by consistent stepping of the levels of adjoining buildings in Brisbane’s hilly suburbs, and by uniform spacing between houses in the flatter suburbs.
Building form and scale
The predominant traditional building form of pre-1946 housing is a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandahs. The 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 lightweight external elements reduce building bulk and form a transition with the external landscape. They make an appropriate response to the local climatic conditions of strong sun and high rainfall.
Whilst ‘timber and tin’ are the predominant materials of the older suburbs.[sic] The presence of other distinctive building forms, such as the Spanish Mission, and their variety of materials highlights the overseas influence on residential design in Brisbane and is a part of the traditional building character. These housing styles are usually rendered on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof.
Setting
The traditional setting of houses in the older suburbs is a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and a single width driveway. The setting of the building on the site is also important, particularly in terms of the setbacks provided to existing or proposed side boundaries …
5 Performance Criteria and Acceptable Solutions
Performance Criteria
Acceptable Solutions
Where a residential building: Where a residential building:
P1 The building:
• Must not represent traditional building character, or
• Must not be capable of structural repair, or
• Must not contribute positively to the visual character of the street
Note: ‘Traditional Building
Character’ is described in
Section 4 of this CodeA1.1
A1.2
A1.3
A1.4
The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946
OR
An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound
OR
The demolition of a building will not result in the loss of:
• traditional building character within the Demolition Control Precinct where in a Low Density Residential Area
…
• traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low-medium Density Residential AreaOR
The street has no traditional
building character……. …… …”
The above Performance Criteria and the Acceptable Solutions contain alternative rather than cumulative requirements, so that the appellants need satisfy P1 third dot point or meet the Acceptable Solutions A1.3 second dot point or A1.4[6] to succeed in the appeal. As Robin QC DCJ said in Lynch v Brisbane City Council[7]:-
“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 recognized under Acceptable Solutions. The site being in a Lower-Medium Density Residential Area, it is the second dot point of A1.3 that is in issue here. …”
As in Lynch the subject houses are also situated in the Low-Medium Density Residential Area so that the relevant part of A1.3 is the second dot point only.
[6]Ken Ryan and Associates Pty Ltd v Brisbane City Council & Ors (2008) QPELR 147 paragraph 12; Litbit Pty Ltd v Brisbane City Council (2008) QPELR 74 at paragraph 7
[7] (2010) QPEC 137 at para 4 (under the table)
Does the application comply with Performance Criteria P1?
As I have said, the parties have agreed that only the third dot point in P1 is relevant it being acknowledged by the appellants that the houses do represent traditional building character, and that both houses are in a sound structural condition. Accordingly, to satisfy the third dot point of P1, the appellants must establish that the houses do not contribute positively to the visual character of the street. That involves the determination of two secondary issues namely:-
A. What is the relevant street for the purposes of P1; and
B. What is its visual character ie streetscape.
Considering each of the above:-
A.What are the parameters of the relevant street?
Council’s position
As I have said, the agreed DCP is bounded by Hoogley Street, Montague Road, Orleigh Street and Gray Road. With respect to A1.3, Mr Veal considers that this DCP contains relevant streetscapes for the purposes of determining the contribution of the subject houses to the visual character/streetscape of the street.[8]. That is consistent with his opinion that the decision on the demolition of these houses cannot be based on a study of Orleigh Street alone and must be assessed against the agreed DCP[9].
[8] Joint Report paragraph 15.2
[9] Exhibit 4 page 4
He considers the subject houses are a part of a much larger precinct and cannot be assessed in isolation. That is, they form an integral part of the agreed DCP which precinct contains examples of very important heritage houses some with pre-1946 character. In Mr Veals view this precinct evidences the evolution of housing in West End from the late 1880s to the present time and that the importance of West End in City Plan is recognized by the majority of that suburb being protected by Development Control Plans. To him, given the demolition of 1-1A Orleigh Street immediately adjoining 5 Orleigh Street, the first view of pre-1946 character housing in West End presented to passengers using the Ferry Terminal and bus station would be the two subject houses.
At the hearing Mr Veal extended his thesis on the relevant streetscape by including as a part of it two further properties. The first is 1-5A Avebury Street situated east of Orleigh Street on the corner of Hoogley and Avebury Streets. The second is 1 Hill End Terrace situated west of Orleigh Street and on the corner of Montague Road and Hill End Terrace[10]. There is no mention of these two properties in Mr Veal’s report Exhibit 4.
[10] Exhibit 5
In cross-examination Mr Veal agreed that No. 1-5A Avebury Street is not visible from Orleigh Street as a consequence of the significant vegetation on the footpath and on that block.[11]. As to 1 Hill End Terrace he agreed that it could not be seen from the Ferry Terminal[12].
[11] T2.3.25
[12] T.2.3.50
Appellant’s position
Mr Macdonald was of the opinion, as conceded by Mr Veal, that 1-5A Avebury Street is not visible from Orleigh Street because of the vegetation. As to 1 Hill End Terrace he said he excluded that property from a streetscape assessment because the alignment of Orleigh Road changes at the corner of Montage Road and Hill End Terrace with the result that the property forms part of a Hill End Terrace streetscape and not that of Orleigh Street.[13]
[13] T1.15.5-15
As to Mr Veal’s opinion that Hoogley Street, Montague Road and Gray Road should be included, Mr Macdonald firstly says in relation to Hoogley Street that the road reserve directly across from the vacant lot at 1-1A Orleigh Street is a natural extension of Orleigh Park and should be considered as part of the Orleigh Street landscape. He says that Hoogley Street should not be included as part of the relevant street because, in relation to No. 9-11 Orleigh Street (the second of the subject houses, two back from the Hoogley Street/Orleigh Street corner) is shielded from view in Hoogley Street by the other subject house at No. 5 Orleigh Street.
As to No. 5 Orleigh Street he says that as a result of the road reconfiguration subsequent to the demolition of 1-1A Orleigh Street on the corner of Hoogley Street, the previous traditional corner has been altered so that No. 5 Orleigh Street has been offset from an otherwise fairly uniform Hoogley Street building line by approximately 15 metres. There is a curved retaining wall built by the Council to soften the corner when one turns from Orleigh Street North into Hoogley Street. In Mr Macdonald’s view, at most, only the side and rear view of No. 5 Orleigh Street would be visible in the Hoogley Street streetscape which views form only an ancillary part of a legitimate streetscape assessment. Mr Macdonald acknowledges that some traditional pre-1946 residential buildings were designed to address corner sites but that No. 5 Orleigh Street is not of that ilk and was clearly designed to front Orleigh Street.
As to Montague and Gray Roads, Mr Macdonald says that they are not within the visual catchment of the subject houses which houses make no contribution to the visual character of those two roads.
Conclusion re parameters of the relevant street
There is a clear distinction in the Code P1 (third dot point) and A1.4 which refer to the “street” one the one hand, and A1.3 on the other which refers to the “Precinct.” To include the precinct in the consideration the streetscape of the street merges those two concepts, which merger I consider unwarranted having regard to the provisions of the Code.
Having considered the arguments of both Mr Veal and Mr Macdonald as to the parameters of the relevant street I prefer the view expressed by Mr Macdonald. Accordingly I find that the relevant street is Orleigh Street excluding 1-5A Avebury Street, 1 Hill End Terrace, Hoogley Street and Montague and Gray Roads.
B.What is the character of Orleigh Street?
Appellant’s position
Mr Macdonald in his report[14] gave evidence that Orleigh Street, excluding 1 Hill End Terrace and 1-5A Avebury Street, which I have ruled on, contains 21 properties comprising:-
[14] Exhibit 2 page 5
One vacant allotment 1-1A Orleigh Street. This is the property demolished by the Council for the purpose of the roundabout near the ferry terminal;
One new house currently under construction at 37 Orleigh Street;
Five pre-1946 traditional “timber and tin” houses (including the two subject houses) at 5, 9-11, 33-35, 39 and 47-49 Orleigh Street;
One pre-1946 “timber and tile” house at 75 Orleigh Street;
Three post-1946 houses at 25, 43 and 61-63 Orleigh Street;
Six unsympathetic modern houses at 29, 31, 51, 53, 55 and 57-59 Orleigh Street; and
Four unsympathetic modern multiple dwellings at 13-15, 21, 65 and 69 Orleigh Street.
In my view, both the inspection of Orleigh Street and surrounds and the photograph of Orleigh Street[15] and the agreed precincts evidence the above.
[15] Exhibit 1 plus large blow up of the same photograph show those buildings.
From that analysis, and given that Orleigh Street is in a Low-Medium Density Residential Area, Mr Macdonald says the Demolition Code protects only the “timber and tin” buildings of which there are five of the 21 properties in the street. He regards the “timber and tile” house at 75 Orleigh Street as falling outside that protection on the basis that the roof is not of tin as referred to in City Plan which he interprets as meaning corrugated iron but rather is modern material called decramastic roof tiles which is a tin tile, a replica of clay or terracotta roof tiles[16]
[16] T1.15.30
Mr Macdonald said that 10 of the 21 properties comprise unsympathetic modern buildings (houses or multiple dwellings) which express no traditional building character and make no positive contribution to what he saw as the remnant traditional building character exhibited by the five pre-1946 traditional timber and tin houses in Orleigh Street. In his view, the subject houses form a small isolated group of pre-1946 traditional timber and tin houses at the eastern end of Orleigh Street and the presence of the vacant allotment on the corner of Orleigh Street and Hoogley Street (1 Orleigh Street) and the unsympathetic modern apartment building at 33 Hoogley Street combine to visually isolate the subject houses from contribution to the visual character of Hoogley Street.[17] He concludes that the built character of Orleigh Street is generated by a predominance of unsympathetic modern houses and multiple dwellings dispersed along the northern side of the street and that the five pre-1946 timber and tin houses including the subject houses in the street do not generate sufficient traditional building character for Orleigh Street to be categorised as a street having traditional building character.[18]
[17] Exhibit 3 paragraph 3.5; Joint Experts Report paragraph 15.1
[18] Exhibit 3 paragraph 3.14
Council’s position
Mr Veal disagreed with Mr Macdonald. His view is that both the subject houses form an important part of Orleigh Street and their demolition would result in the loss of traditional building character in the street. Mr Veal adhered to that view notwithstanding that some houses and unit developments have been constructed in that section of Orleigh Street where the subject houses are situated. His view is that, notwithstanding that modern construction, the street still retains its pre-1946 character atmosphere.[19]
[19] Exhibit 4 page 22
As I said earlier, Mr Veal regards the subject houses as being located at the main point of entry to West End and the first pre-1946 timber and tin houses observed by ferry passengers arriving in that area at the ferry terminal on the southern side of Orleigh Street approximately opposite the subject houses. At the time of the hearing that terminal had been incapacitated by the recent Brisbane flooding but there was no issue that it would be reinstated to provide a continuing ferry service to Brisbane residents.
Mr Veal considered that if the houses were removed then ferry passengers arriving at the terminal would perceive that they were being introduced to a modern unit and small lot suburb which is not the traditional character of this section of West End. That point is consistent with the view Mr Veal takes of the issue of whether or not the houses should be demolished namely that one cannot look at Orleigh Street in isolation but must also look at the agreed precinct within which it is located.
Mr Veal agreed that those same passengers alighting from the ferry would also see the multiple dwelling with the bright yellow wall at 31 Hoogley Street to the north of the vacant lot on the corner or Hoogley and Orleigh Street together with the large green unit block at 21 Orleigh Street. In relation to that latter unit block Mr Veal maintained his position that, Notwithstanding its visual presence, the first visual impact for a passenger coming off the ferry or the buses would be the two subject houses.[20].
[20] T2.4.1-28
Can a street have more than one character?
Mr Veal also expressed the view that Orleigh Street could be broken in to three segments; the eastern end where the subject houses are, the middle and the western end and that the eastern end was a distinct pocket of traditional building character. The Council relied upon two cases to support the view that “street” need not necessarily refer to the whole street.
The first is Ken Ryan v Brisbane City Council[21]. In that case Wilson SC DCJ was considering the demolition of an old Queensland house 97 Sylvan Road, Toowong to be replaced with four dwelling units. The streetscape agreed by both experts was the northern side of Sylvan Road between the two streets running off to the north, St Osyth and Quinn Streets, and that the streetscape lacked any traditional building character. They agreed further that other sections of Sylvan Road which they agreed did exhibit traditional character were to be contrasted with the subject streetscape. His Honour found that the inspection and photographic evidence accorded with the consensus of the experts and found that the northern side of Sylvan Road did not present as one containing a streetscape redolent of, or exhibiting, traditional building character.[22]
[21] (2008) QPELR 147
[22] (2008) QPELR 147 at 51 paragraphs 23 and 24
The next case is Lynch v Brisbane City Council (2010) QPEC 137, a decision of Robin QC DCJ of 16 December 2010. In that case the relevant “street end” was that part of Collins Street, Nundah west of Bage Street. The DCP was confined to the western part of that part of Collins Street and there were 8 of 13 parcels on the southern side all but one of which contained detached houses constructed before 1946. Their lot numbers were 70, 66, 62, 58-60, 54-56, 50-52, 46-48 and 42. Number 66 was the exception having been constructed in the 1950’s although still of timber and tin construction[23].
[23] (2010) QPEC 137 paragraph 5
His Honour, dismissing the appeal thus denying demolition, said[24]:-
“Notwithstanding Mr Robinson’s prognostications, the western part of Collins Street (more precisely, the western part of what the experts identified as the street) that part coinciding with the DCP remains a reasonably in-tact collection of pre-1946 timber and tin dwellings with only a limited number of intrusions, which, for the most part are sympathetic or, like the Art Deco house, recognised as having a value of their own, even if not in the low-medium density designation specifically….”
[24] (2010) QPEC 137 paragraph 19
Both those authorities demonstrate that, in appropriate circumstances, the particular “street” to be considered for the purpose of the Demolition Code may well be a section of a street rather than the whole street. In that sense, a street as a physical structure, as contrasted with the “street parameters” for the purposes of consideration of the Demolition Code, may well have more than one character as was the case in Ken Ryan.
Can Orleigh Street have more than one character for the purpose of the
Demolition Code?
Accepting that a street may exhibit more than one character as I have said, does that mean that the “street” identified for the purpose of interpretation of the Demolition Code can have more than one character? I think not. The term “character” is defined[25] as - “the aggregate of features and traits that form the individual nature of some person or thing” (underlining in the definition). A street may well contain houses of various styles. But to determine the visual character of the street, it seems to me one character has to be identified reflecting the aggregate of is features or traits as above defined. P1 speaks of the character of the street not the character of various segments of the street. Put another way, 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.
[25] Dictionary.com
Conclusion re character of Orleigh Street
The evidence of Mr Macdonald coupled with the inspection of the subject site leaves me in little doubt that his evidence is to be preferred to that of Mr Veal on the issue of the character of Orleigh Street, notwithstanding its status in 1946 as evidenced by the photograph in evidence.[26] The street has in my view moved well away from the traditional character it manifested in 1946. Today its character is of a modern nature notwithstanding there remain a small number of houses of a traditional building character two of which are the subject houses.
[26] Veal Report Exhibit 4 page 31A
Do the subject houses contribute positively to the visual character of the street?
Both parties referred me to the decision of Skoien SJDC in Lonie v Brisbane City Council & Ors[27]. In that case his Honour was considering the following section of a Council policy:-
“(vii)It is important to the visual character and amenity of the local streetscape and its removal or demolition would significantly diminish the visual character of the local streetscape.”
That policy encapsulates the same concept of contribution to the streetscape as the present provisions in the Code do.
[27] (1998) QPELR 209
In relation to that provision his Honour said:-[28]
“I thought the evidence of Mr Scott, Mr Kennedy and Mr Ross, gave valuable assistance on the question I have to decide under paragraph (vii). In a nutshell, it is this: would the average person walking down the street and looking about, with a perception which falls somewhere between that of a Ph.D. in Architectural History on the one hand and that of a Philistine on the other, think of Hewitt Street ‘this is a pretty typical old Brisbane street?’ As I have said, I think he would. Having said that, would that person look at Number 29 and say ‘And that is the sort of workers’ cottage they built in those days in streets like this’. That person would then undoubtedly note that it was the only workers’ cottage in the street. Would that person regard Number 29, in those circumstances, as important to the visible (sic) character of Hewitt Street? I think he would. That having been said, it seems to me to be immaterial that this person might add, ‘Pity about the alterations’.”
[28] (1998) QPELR 206 at 212
Mr Trotter for the Council, posed the questions, in the present context, this way:-[29]
[29] Written submissions paragraph 38
“(1)Would the average person walking the relevant part of the street and looking about, with a perception that falls somewhere between that of a Ph.D. in Architectural History on the one hand, and that of Philistine on the other, think of this part of Orleigh Street:
‘This is (part of ) a pretty typical old Brisbane Street”?
(2)Would that person look at the subject houses and say ‘And that is the sort of house they built in those days in streets like this’ and regard the dwellings in those circumstances as important to the visual character of the street?”
To both questions, Mr Trotter said, the answer would be in the affirmative.
On the basis that the relevant part of the street referred to by Mr Trotter is the street I have found to be the relevant street, I think the more realistic responses from that hypothetical average person strolling past the houses would be:-
1. “This is a pretty typical old Brisbane Street which has been transformed by modern construction into a modern street:
2. ‘And that is the sort of house they built in those days in streets like this as it once was but is not now’. emphasis added
Mr Macdonald’s view is that the subject houses are inconsistent in character with adjacent and nearby buildings in Orleigh Street and make no positive contribution to the modern character of Orleigh Street. According to him the extensive re-development along the entire length of Orleigh Street negates the isolated and minor traditional building character expressed by the subject buildings.[30] on the other hand, consistent with his view that the street enjoys a traditional building character, Mr Veal considers that both houses contribute positively to the street.[31]
Conclusion on whether subject houses contribute positively to the visual character of Orleigh Street
[30] Exhibit 3 page 18 paragraphs 5.14 – 6.1
[31] Exhibit 4 page 21
Consistent with my findings as to the modern nature of the character of Orleigh Street I accept Mr Macdonald’s evidence in preference to Mr Veal’s and agree that the subject houses make no positive contribution to the visual character of Orleigh Street. Further I accept the submission of the appellants[32] that the proposal does not conflict with the purpose of the Code because the subject houses are located in an area of the Demolition Control Precinct that is so eroded by modern houses and multi-unit development that the removal of the houses would have no noticeable impact on the traditional character and amenity of the relevant Development Control Precinct Area.
[32] Written submissions paragraph 35
Given these findings, the appellants have satisfied Performance Criterion P1 (third dot point). The appeal is allowed.
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