Lynch v Brisbane City Council
[2010] QPEC 137
•16 December 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lynch v Brisbane City Council [2010] QPEC 137
PARTIES:
RICHARD JOHN LYNCH
(appellant)
v
BRISBANE CITY COUNCIL
(respondent)
FILE NO/S:
1458 of 2010
DIVISION:
Appellate
PROCEEDING:
Developer appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
16 December 2010
DELIVERED AT:
Brisbane
HEARING DATE:
7, 8 December 2010
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Developer’s appeal against refusal of demolition of pre 1946 “timber and tin” dwelling in Development Control Precinct – whether it positively contributed to the visual character of the street – whether removal would result in loss of timber and tin character in the Demolition Control Precinct.
COUNSEL:
S Ure for the appellant
T Trotter for the respondent
SOLICITORS:
McInnes Wilson Lawyers for the appellant
Brisbane City Legal Practice for the respondent
Mr Lynch appeals under s 461(1)(a) of the Sustainable Planning Act 2009 (SPA) against the Council’s refusal of his development application for a preliminary approval for building work (demolition of a pre-1946 house in a Development Control Precinct) in respect of a house property at 50-52 Collins Street, Nundah. The Decision Notice is dated 16 April 2010 and assigns the following reasons:
“1.The proposed demolition does not comply with the Purpose of the Demolition Code as:
The proposal does not protect a residential building that contributes to the traditional character and amenity of the Low Density Residential Area in the Demolition Control Precinct; and
The proposal does not ensure the preservation of a building where it 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.
2.The proposed demolition does not comply with Performance Criteria P1 of the Demolition Code as:
The building represents ‘traditional building character’, has no evidence of being incapable of structural repair, and the building contributes positively to the visual character of the street.
3.The proposed demolition does not comply with Acceptable Solution A1.1 of the Demolition Code as:
The building has not been substantially altered and has the appearance of being constructed in or prior to 1946.
4.The proposed demolition does not comply with Acceptable Solution A1.2 of the Demolition Code as:
There is no evidence that the building is structurally unsound and not reasonably capable of being made structurally sound.
5.The proposed demolition does not comply with Acceptable Solution A1.3 of the Demolition Code as:
The demolition of the building will result in the loss of traditional building character within the Demolition Control Precinct where in a Low Density Residential Area.
6.The proposed demolition does not comply with Acceptable Solution A1.4 of the Demolition Code as:
The street contains traditional building character.”
In the course of responding to the appellant’s request for further and better particulars, the Council determined to amend its grounds of refusal by resiling from 1 and 5 above and relying on the following in addition to 2, 3 and 4:
“The proposed demolition does not comply with the Purpose of the Demolition Code as the:
1.proposal does not protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity;
2.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; and
3.proposal does not, 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.”
See exhibit 6. It seems there is little of substance in these changes.
Although the Council’s reasons or grounds define what the appeal is all about, it is for Mr Lynch to establish that the appeal should be upheld: SPA s 493(1). The Notice of Appeal contends that:
“The development application should be approved because:
(a)the house on the subject site does not represent traditional building character; and/or
(b)the house on the subject site does not contribute positively to the visual character of the street; and/or
(c)the house on the subject site has undergone substantial alterations that detract from its original pre-1946 state; and/or
(d)the demolition of the house on the subject site will not result in a loss of traditional ‘timber and tin’ building character; and/or
(e)other pre-1946 houses in the same street as the subject site have been demolished or modified in such a manner that they no longer maintain their traditional building character.”
The appellant engaged Mr Robinson and the Council engaged Mr McDonald as expert heritage architects. Their joint report of 29 November 2010 confirms their agreeing (in paragraph 20) that grounds (a) and (c) are not relevant and that to the extent that (e) might be relevant, that aspect of the appeal is “adequately addressed in appeal ground (b).” Mr Trotter (for the Council) accused Mr Robinson of seeking to renege on those agreements and he may have been repenting of agreeing in respect of (c). One way or another, all of those “grounds” are subsumed in (b) and (c).
Pertinent parts of the Demolition Code in Brisbane’s City Plan are as follows:
“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
…
3. Purpose
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.
·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 Low Density Residential Area and Character Residential Area
…
·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
…
4.Assessment 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 20m 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 … 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. 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 interwar 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.
…
Whilst ‘timber and tin’ are the predominant materials of the older suburbs, 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 single width driveway.
Performance Criteria and 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 Code | A1.1 The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946 OR A1.2 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound OR A1.3 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 or Character Residential Area, or · traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low-medium Density Residential Area OR A1.4 The street has no traditional building character |
”
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 in a Lower-Medium Density Residential Area, it is the second dot point of A1.3 that is in issue here. Mr Ure, representing the appellant, submits that he has established that A1.3 is satisfied (as regards to the second “dot point”) and that the final “dot point” of P1 is satisfied. There is an interesting and important distinction between the two in that P1 focuses on the character “of the street”, whereas A1.3 focuses on character within the demolition control precinct (DCP); the site is within a DCP.
Collins Street runs from Toombul Terrace in the west to Toombul Railway Station in the east and is intersected at a point considerably closer to the station by Bage Street, running north-south. If (as the UBD map exhibit suggests) Collins Street extends a short distance further west to Hamson Terrace, it does so after a “kink” giving the appearance of a separate street. The experts were agreed that the relevant “street” was the part of Collins Street west of Bage Street. The DCP is confined to the western part of “the street”, as defined by the experts. On the southern side, it covers more than half of the block, the western eight of the 13 parcels there, all of which are built on. The eight in the DCP (lots 70, 66, 62, 58-60, 54-56, 50-52, 46-48, and 42) all contain detached houses on wider blocks (except for 62), all of which were constructed before 1946 except for 66 which, although “timber and tin”, was constructed in the 1950s and obtains no protection from the Demolition Code. Although the house is not protected from potential demolition in that way, its replacement, were it demolished, would have to comply with the Residential Design – Character Code in City Plan 2000 Ch 5, whose purpose is to:
“•encourage development in Demolition Control Precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing
•in conjunction with the Demolition Code, ensure that precincts of pre-1946 houses are retained and redevelopment in those precincts complements the pre-1946 houses.”
On the northern side of Collins Street, only the five double blocks opposite to Toombul Terrace are in the DCP. Until recently, all had a pre-1946 detached residence erected on them (excepting the moderately sympathetic timber and tile house on 63, which is directly opposite the rather more sympathetic 66. Pursuant to a development permit issued by the Council, the easternmost house on 51-53 has been demolished. Approved plans exist for multiple residences on the site roughly reflecting similar developments in Collins Street further east and presumably satisfying the Residential Design-Character Code.
The DCP also includes 71 Toombul Terrace which stands proud as the pre-eminent pre-1946 residence, right at the head of Collins Street as one proceeds along it heading west; it is part of a group of three at the inter-section (which is completed by a narrow dog leg extension west of Collins Street). Collins Streets divides into higher and lower portions in the section where the DCP covers both sides to accommodate the sloping terrain: the northern side is much higher and rising to the north. The median strip created is vegetated. I do not accept Mr Robinson’s criticism of it as destroying the unity of the street and DCP area and compromising its character in some way. East of 51-53 Collins Street, outside the DCP are lot 47 (20 m frontage) accommodating multiple dwellings in a group of three, one at the back, 45 (10 m frontage with a 1950s timber and tile residence), 41-43 (two storey multiple dwelling with a wide driveway passing under the upper level to access parking at the rear), 39 (10 m frontage with a pre-1946 traditional building “altered unsympathetically”), 33-35 (three storey multiple dwelling), 29-31 (two storey multiple dwelling), 25-27 (two storey multiple dwelling) and finally 21 Collins Street, on the corner with Bage Street, where there is a high-set pre-1946 traditional timber and tin house.
The subject house
The house exhibits the features of traditional building character described in s 4 of the Demolition Code, likewise the characteristics in the leading paragraph under “Building Form and Scale” and characteristics in the paragraph under “Materials and Details”. As to “Setting”, it has a “single width driveway” down the eastern side, albeit not paved, but lacks a “pedestrian path”, perhaps on account of alterations.
Mr Robinson acknowledges the subject house as a pre-1946 predominantly single storey timber framed dwelling with a corrugated iron roof, but says it has been modified unsympathetically and does not resemble a traditional unaltered pre-1946 house because:
“1.The verandah has been altered and new balustrading fitted.
2.The front window which would have originally been a timber glazed double hung window is now glass louvers.
3.The original painted timber weatherboard has been replaced with a non-traditional narrow width boarding which differs from the boarding on the west side elevation.
4.The house has been extended at the rear and this extension contained non-traditional glass louvered windows.”
What is noted in 3 may or may not be a modification. The boards at the front of the house presently have only half (maybe precisely and deliberately) the widths of those on the western side. There is no basis for regarding this as modification of an original. Mr McDonald’s opinion is that the narrow boards are original and an interesting feature. In a context such as this appeal, it is the presentation of a house to the street that matters. What may have occurred at the rear is not likely to have much importance. Mr Trotter got the experts to agree that the changes made were easily reversible, but I doubt this has much relevance except to provide a kind of assurance that an informed observer of the house could readily imagine (and possibly derive some satisfaction or pleasure from) the original presentation. It was accepted that residences of the age of the subject (perhaps 90 years) will almost certainly have been altered. It is unfortunate that the court inspection occurred without Mr Robinson’s complaint against the workmanship displayed in the fixing of the narrow weatherboards, especially on window surrounds, where it was said there were gaps. Like Mr McDonald, unalerted to any such feature, I did not notice it. In any event, it is a feature which would not, in the circumstances, devalue the house for purposes of this appeal.
The development application was code assessable, that is, to be assessed in accordance with s 313 of SPA. The binding “decision rules” relevantly begin at s 324. By sub-section (1) the assessment manager must:
(a) approve all or part of the application; or
(b) approve all or part of the application subject to conditions decided by the assessment manager; or
(c) refuse the application.
The decision must be based on the assessment: sub-section (2). Section 326 provides that the assessment manager’s decision must not conflict with a “relevant instrument” (defined to include any applicable codes) unless there are sufficient grounds to justify the decision, despite the conflict. This is not one of those special cases dealt with where “conflict” may be disregarded to ensure compliance with a State planning regulatory provision or to decide in a way that “best achieves the purposes” of instrument(s) if there is conflict between or within the relevant instrument(s).
Under City Plan, the application was notifiable to neighbours individually and to the public generally inviting submissions which would receive consideration by the Council but not confer appeal rights. There were no submissions favourable or unfavourable. Although Mr Ure for the appellant presented this as a favourable factor, I am inclined to regard it as neutral, having no bearing on the assessment manager’s (now the court’s) task of assessing the development application against the Demolition Code. It might have been the case that a welter of submissions seeking retention of the residence based on the considerations spelt out in the Demolition Code, by showing that the building’s contribution to the streetscape was valued, would have been useful confirmation of the Council’s approach and that of its heritage expert, Mr McDonald.
Essentially, Mr Robinson, in support of the appeal, submits that the street is not good enough and that the subject house is not good enough to justify retention of the house. In the conclusion to his individual report (Exhibit 2) he provides his response to the performance criteria and acceptable solutions of the Demolition Code, adding some comments about the Code’s purpose:
“a) With respect to Performance Criterion P1 of the Demolition Code (third dot point), the building:
·Must not contribute positively to the visual character of the street.
(i)the visual character of the subject street has already been seriously compromised and is substantially-overwhelmed by new multi-unit apartment buildings which demonstrate how future multi unit residential buildings will erode the quality of the pre 1946 streetscape.
(ii)that the application of the Residential Design – Character Code and the Residential Design – Low Density Character and Low-medium Density Code will produce outcomes that will not necessarily be sympathetic to the character housing in the subject street.
(iii)further multi-unit development (either currently-approved or likely to occur in the future due to the LMR zoning) will continue to contribute negatively to the visual character of the subject street.
(iv)It is inevitable that further increased residential densities will be encouraged along Collins Street in the future as it will form part of a transit-oriented development around the nearby Toombul station and Toombul shopping centre in the future.
The alterations to the timber boarding and front window of the dwelling means that it does not contribute positively to the visual character of the street, a street now unfortunately dominated by larger multi unit buildings.
b)With respect to the fourth dot point of the purpose of the Demolition Code:
·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.
Demolition of the subject building would satisfy this purpose of the code because:
(i)the house does not form an important part of the streetscape as the subject building is substantially overwhelmed by two or three storey masonry post war apartment buildings and pre and post war detached houses of varied appearance and forms an unimportant part of the already degraded streetscape. There is no unified pre 1946 streetscape and this will be degraded further with the possible development on the vacant site at 51 – 53 Collins Street (Refer Appendix 1, Photo 29).
(ii)The subject dwelling is not unique enough in its pre 1946 design to form an important part of the streetscape.
(iii)The streetscape of the subject street consists predominantly of post-1946 buildings including apartment buildings as well as detached houses that would not stand scrutiny of the DCP and what little remains is no longer a traditional streetscape.
(iv)The character value of the other scattered character buildings is generally minimal due to the prevalence of unsympathetic developments including three storey multi-unit dwellings from the 1960s and 1970s. (Refer Appendix 8).
(v)The pre 1946 streetscape has been further damaged by the addition of the landscaped traffic island which visually separates both sides of the street at the northern end.
c)With respect to the first dot point of the purpose of the code, whether demolition of the subject building would protect the residential buildings that give the Residential Areas in the DCP their traditional character and amenity.
The traditional character and amenity of the street is so eroded with unsympathetic apartment buildings and degradation of the housing stock through unsympathetic renovations that protection of the scant remaining character in the subject street is to a point where the DCP should be removed from the subject street altogether.
Demolition would not impact on the traditional character and amenity because it is not a building that provides traditional character and amenity and the area as a whole has lost its traditional character.
d)With respect to Acceptable Solutions A1.3 of the Demolition Code (second dot point), the demolition of a building will not result in the loss of: Traditional ‘timber and tin’ building character within the Demolition Control precinct.
(i)Demolition would result in a loss of some traditional ‘timber and tin’ building character but it is acceptable in the circumstances. Such a partial loss would satisfy the acceptable solution. The subject building is not a significant building of its type as evidenced by a nearly identical building on the east of the subject site which represented repetitive standard building typologies of the period of which many of these were built (if not hundreds still exist).
(ii)Other pre 1946 houses in the same street as the subject site have been demolished or modified in such a manner that the character of the street has been significantly diminished and compromised to the point that the street no longer retains its traditional building character.
e)With respect to the ninth dot point of the purpose of the code, whether demolition of the subject building would 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.
Demolition of the subject building would satisfy this purpose of the code because:
(i)redevelopment in the Collins Street precinct has failed miserably to complement the pre-1946 houses in the street. The existing two and three storey masonry multi residential buildings which take up most of their allotments dominate the smaller scale pre 1946 dwellings. These examples suggest that future multi residential developments will be of two or three stories, masonry construction and physically dominate and not compliment any dwellings in the street.
(ii)further increased residential densities will be inevitable in the street.
f)With respect to the grounds of the appeal, in relation to the contribution of the subject building to the visual character of the street.
The subject building would not make a significant contribution in the future to the visual character of Collins Street for the reasons set out in point reference above.
g)With respect to the grounds of appeal, in relation to the loss of traditional “timber and tin” building character that would result from demolition of the subject building.
Demolition of the subject building would result in a partial, but not total, loss of traditional “timber and tin” building character within a street that has little traditional building character.”
Mr McDonald, noting the final sentence above, considered it “axiomatic” that the Code required retention of this building. Mr Trotter, for the Council, took a less strict approach, according to which the “loss” of traditional character referred to in A1.3 refers to a loss of traditional building character that is significant, concerning or unacceptable, rather than to any loss at all; loss in that sense by definition would flow from removal of a pre-1946 building which (like the present) is readily identifiable as such by reference to the descriptions of character in the Demolition Code (notwithstanding Mr Robinson’s criticisms of the building, which I consider were exaggerated). That approach is the one the court should take in this appeal.
Mr Robinson thought that the DCP area would retain its character if the building were lost. He is correct in approaching A1.3 to focus on the loss of the building and its replacement by empty space (I took him to assume that the substantial vegetation at the front of the block would remain, but this would not seem important). It is not permissible to speculate about any construction that might replace the removed building and which one might fear would be worse. In such a context as this, one might note the philosophy of the Demolition Code which appears to be that a post 1946 building, however sympathetic, deserves no consideration on that account where its demolition is applied for and can be demolished as of right (perhaps to be replaced by something “worse”).
The concept of “the loss of traditional ‘timber and tin’ building character” may raise similar considerations to provisions about loss of views or maintaining views. If a view is impaired or partially destroyed has it been lost - or is it being maintained? It is redolent of a glass half full/glass half empty situation just as (on Mr Trotter’s concession) the potential of recourse to A1.3 is not removed simply because there may be some loss (however minor). It could not sensibly be suggested that A1.3 is available to a developer unless there is going to be a total loss of the relevant “traditional timber and tin building character within the DCP”.
As regards character of the street, I have considered whether, notwithstanding the experts’ agreement as to what constitutes the street, a more confined area ought not to be the subject of attention. That is what occurred in Ken Ryan & Associates Pty Ltd v Brisbane City Council [2008] QPELR 147 in which at p 151 (paragraph [23] ff) Sylvan Road, Toowong was divided into parts, one principle of division being northern and southern sides. The court’s conclusion was that by dint of a building’s location and immediate surrounds its demolition would not result in the loss of traditional character in the street:
“This part of Sylvan Road simply does not present as one containing, on the northern side, a streetscape redolent of, or exhibiting traditional building character.”[1]
Similar comments cannot be made about the appellant’s house in its surrounds. Indeed, its “part” or segment may be considered the best one. Alteration(s) notwithstanding, it is patently a pre-1946 timber and tin dwelling with features such as eaves, sunhoods and the like. Mr McDonald invites an exercise of taking of some steps backwards from standing in front of the house. One would then take in that similarly convincing pre-1946 dwellings still existed on both sides, albeit altered, the western one attracting praise as probably the best of the houses in the Collins Street part of the DCP. Stepping further back, one’s view takes in another pre-1946 timber and tin structure two houses east of the subject and a pre-1946 fibro structure two houses west. I accept Mr McDonald’s opinion that this house is original and one of the imported styles regarded in the Demolition Code as important and a part of traditional building character, albeit not timber and tin. Given that the second dot point in A1.3 applies, this Art Deco building (possibly an inapt description) would appear not to contribute to the “timber and tin” character whose loss is sought to be avoided. That consideration is perhaps compensated for by the presence one house further west of yet another pre-1946 double storey timber and tin dwelling. It is true that across Collins Street is the now vacant lot at 51-53 and that there is likely to be a second vacant lot immediately to the west at 55-57 if a recent development permit is implemented.
[1] The group of 6 properties was analysed as follows:
“Starting from the east, the streetscape comprised a ‘six pack’ unit block on the corner of Sylvan Road and St Osyth Street, built in the 1970’s or 1980’s; the subject house; the next house to the west, 99 Sylvan Road which, despite apparently being built in or before 1945 is virtually indistinguishable from the post war ‘austerity’ design popular after 1946 and does not, therefore, present with the usual ‘tin and timber’ features, the premises at 101 and 103 Sylvan Road, which do appear to be of a traditional ‘tin and timber’ design and construction but, by reason of the erection of carports, hedges, and high fences, do not make any meaningful contribution to what can be called ‘traditional character’; and, lastly, the Toowong Primary School Sports Ground. Both architects contrasted this streetscape with other sections in Sylvan Road which, they conceded, do exhibit the traditional character to which s.4 of the Code refers.”
Whatever may be the strictly correct approach, this appeal was conducted on the basis that assumptions ought to be made that such development approvals will be availed of, so that, for example, construction of the multiple dwellings approved for 51-53 will happen, changing the character of the street, indeed of the DCP to an extent. I took it there was an assumption that similar multiple dwellings may before too long be constructed on 55-57. On the other hand, no assumptions favourable to the Council’s case (for example, that the existing pre-1946 dwellings might be reinstated to something more like their original appearances) were to be made. Effectively, Mr Robinson “writes off” the street as inevitably taking on a post-war character, indeed a multiple dwellings character. He says, for example:
“6.02 STREETSCAPE
The streetscape has now eroded to such an extent due to a predominance of post war dwellings and pre war dwellings which no longer display light tactile attributes. Hence the remaining timber and tin houses do not form an important part of the streetscape.
A streetscape generally is defined as what can be seen from the subject site, which certainly covers a greater area than just the grouping of pre war houses on this side of the street.
Given the predominant post war streetscape, these houses are not important. The dwellings aren’t simply important because they are pre war; the must be an important part of the streetscape. Further, the streetscape was not constructed or established pre war – only parts of it were, compared with the majority of the streetscape being made up of post war buildings.”
He may have been influenced by the fact that a number of the pre-1946 houses appear dilapidated or insufficiently maintained.
He refers to the Brisbane City Council Toombul/Nundah Strategic Analysis which in 3.4.2 Character Housing (set out in his Appendix 5) states:
“Pockets of character housing remain in several parts of the study area, particularly in the northern and north-eastern areas. There is also a small cluster of character housing in Nundah centre around Boyd and Chapel Streets. The character value of other scattered character buildings is generally minimal due to the prevalence of unsympathetic developments including three storey multi-unit dwellings in the 1960s and 1970s.”
Although there is apparently no designation in this regard, by reason of proximity to the railway station, Mr Robinson conceived of Collins Street as appropriate for a TOD (Transport Oriented Development). The Strategic Analysis has by no means advanced far enough to attract weight under the COTY principle; in any event, Collins Street is not in the northern or north-eastern parts of the study area.
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, recognized as having a value of their own (even if not in the low-medium density designation specifically). The Demolition Code will, while the DCP remains (contrary to Mr Robinson’s apparent recommendation) provide some reason for anticipating that the pre-1946 housing stock will remain. The 1950s buildings appear to be well maintained (something of a contrast with the older ones, it might be observed) and, on cursory inspection, would not appear likely to face imminent removal. Replacements for them would have to comply with the Character Code and may be more sympathetic to the timber and tin streetscape than multiple dwellings in Collins Street so far.
One “worst case” (from the point of view of valued pre-1946 character being lost or compromised) that did not eventuate is the lapsing of an approval in respect of the subject dwelling for a “cut and slide” which I thought Mr Robinson pointed to as an acknowledgement by the Council in earlier years that, the dwelling was not worth retaining intact or in situ.
A conclusion that the second dot point of A1.3 has not been made out is inescapable, in my view.
As for the independent possibility under P1, which the appellant pursues, the court is persuaded that the dwelling does contribute positively to the visual character of the street. Even if I did not yield to my own strong inclination to take a more restrictive view of what is the “street” than the experts did, and confine it to the DCP area (or the DCP area as changed by existing and anticipated development approvals) – even to the southern side of Collins Street, I agree with Mr McDonald that there is a positive contribution to the visual character of Collins Street west of Bage Street considered as a whole.
It might be observed that neither Mr McDonald nor Mr Robinson had any criticism to make of the Council’s having permitted demolition of the pre-1946 dwellings across Collins Street from the appellant’s.
It has seemed appropriate to devote attention to Mr Robinson’s views, as he is the expert witness providing support for the appellant’s case. His views are not persuasive, at the end of the day, for reasons set out above. For completeness, Mr McDonald’s conclusion, which is consistent with the court’s assessment, may be noted:
“5. CONCLUSION
5.1The subject building is a pre-1946 “timber and tin” house which expresses traditional building character and is located within a DCP which also expresses traditional building character. The subject building is consistent in character with adjacent and nearby houses at the western end of Collins Street and makes a positive contribution to the character of the street. Although there has been extensive redevelopment outside of the DCP towards the eastern end of Collins Street, these modern buildings do not negate the positive traditional building character evident towards the western end of Collins Street.
5.2Based on the above assessment, it is concluded that:
·demolition of the subject building would result in the loss of traditional “timber and tin” building character within the DCP and would not satisfy the A1.3 (second dot point) performance criterion of the code
·the subject building contributes positively to the visual character of Collins Street such that demolition would not satisfy the P1 (third dot point) performance criterion
·demolition of the subject building would be in conflict with the purpose of the code.
5.3In consequence of these conclusions, the proposed demolition should not be approved.”
A number of decisions in the court were referred to. So far as merits issues are concerned, no system of precedent operates in this court. Appeals like Mr Lynch’s have succeeded in Ken Ryan (supra), Litbit Pty Ltd v Brisbane City Council [2008] QPEC 74, Hearne v Brisbane City Council [2010] QPEC 16 and Affram Pty Ltd v Brisbane City Council [2010] QPEC 47. They have failed in Armstrong v Brisbane City Council [2003] QPEC 007, Razia Developments Pty Ltd v Brisbane City Council [2004] QPEC 059, Berlese v Brisbane City Council [2002] QPEC 13 and very recently in Doolan v Brisbane City Council [2010] QPEC 130. There, a pre-1946 timber clad and tin roofed house described as “Austerity or Conventional style” was saved. Its contribution to its streetscape must have fallen far short of the present appellant’s house in Collins Street. The Demolition Code nowhere favoured that style, but Mr McDonald demonstrated to Judge Searles by reference to various texts that the style was an established part of Brisbane’s housing typology prior to 1946 (see [22] in the reasons).
It is convenient to note some principles which may be of general application that Mr Trotter extracted from those cases:
“(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[2]
[2]Berlese v Brisbane City Council [2002] QPEC 073 [11]
(2)Nor is it, in my view essential that a particular building should exhibit each and every one of the features identified in the Code’s explanation of traditional building character[3].
[3]Berlese [11]
(3)The explanation of the term “traditional building character” in section 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[4]
[4]Raiza Developments Pty Ltd v Brisbane City Council[2004] QPEC 74 [18]
(4)The Court must be astute to prevent aesthetic consideration from intruding. A pre-1946 building even if “ugly”, is to be assessed only on the factors recognized in the Demolition Code as important.[5]
(5)The fact that a site might be suitable for development for broader reasons and is capable of being sympathetically redeveloped is irrelevant[6]
(6)It is relevant to enquire whether the street in question has been “robbed” of the traditional character by redevelopment such that traditional building character has been lost.[7]
(7)It is not any part of the Demolition Code to require a pre-1946 house to be 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”[8]
[5]Litbit Pty Ltd v Brisbane City Council[2008] QPEC 74 [18]
[6]Berlese [16]
[7]Berlese [14]
[8]Armstrong v Brisbane City Council [2003] QPEC 007 [17]; Berlese [2002] QPEC 73 [11]
Finally, he referred to Lonie v Brisbane City Council [1998] QPELR 209 in urging the court not to be over-influenced by the fact that neither the street nor the dwelling were pristine. That (unsuccessful) appeal was unusual in that 62 objections and three petitions had been received opposing the developer’s application.
There is no requirement that a pre-1946 building be “unique” (as suggested by Mr Robinson) or even good. (Nor, I think, does it matter that there may be a lot of them left in Brisbane.)
This appeal ought to be dismissed.
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