Macchia v Brisbane City Council

[2001] QPEC 24

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Macchia v Brisbane City Council & Ors [2001] QPE 024
PARTIES:	FRANK MACCHIA

Appellant

AND
BRISBANE CITY COUNCIL

AND Respondent

ELSPETH DARVENIZA,
DAVID AND ANNE HEWITT,
ROBIN AND SANDRA LARCOMBE,
NGAIO NAGLE, STEPHEN NORTON

AND LESLA TOWNEND

Respondents by

Election

FILE NO/S:	2882 of 2000
DIVISION:	PLANNING AND ENVIRONMENT
PROCEEDING:	APPEAL
ORIGINATING	BRISBANE
COURT:
DELIVERED ON:	4 May,2001
DELIVERED AT:	BRISBANE
HEARING DATE:	29 & 30 March, 2001
JUDGE:	JUDGE QUIRK
ORDER:
CATCHWORDS:
COUNSEL:	Mr C.Hughes for the appellant Mr M. Hinson SC for the respondent Mr J. Ware for the respondents by election
SOLICITORS:	Hunt & Hunt for the appellant Brisbane City Legal Practice for the respondent Clayton Utz for the respondents by election

1. This Appeal is against the Respondent’s deemed refusal of a development

   application to allow the removal of an existing house on land at the corner of

   Watson and Crane Streets Newmarket and its replacement with an architecturally designed modern dwelling. The land owner, Mr Dalton, presently resides with his

   family in the existing dwelling and for reasons which he explained, has found it

   unsuitable for their family living. The appellant Mr Macchia is the land owner’s

   Architect.

2. At the time when the application was made the Brisbane City Plan had not come

   into operation and the matter was governed by the now superseded Town Plan. The

   relevant application for development approval was required by reason of s.7.2.6.1,

   the subject land being within the area indicated in figure 7.1.1 of the Town Plan.

   Pursuant to s.4.1.52(2) of the Integrated Planning Act the matter must be decided

   by reference to the Town Plan.

3. The determinative part of the Town Plan is s.7.2.6.3. It is accepted that the existing

   dwelling is not a heritage building and accordingly the relevant provision is as

   follows:-

   “An application for consent in relation to the demolition or removal
   of a building in accordance with sub paragraph 7.2.6.1 shall only be
   approved:-
   …

(b)	where the building is not a heritage building:-
(i) its removal or demolition would be unlikely to adversely affect the visual character and amenity of the streetscape or a component of the streetscape;

and

(ii)

an application is made at one time for demolition or removal of a and

(iii)     the design of any proposed new building would complement or enhance the character of the area.”

1. The required findings call for an examination of the “visual character and amenity

   of the streetscape or a component of the streetscape” and the effect that the removal

   of the existing dwelling would have in that respect. An assessment of the design of the proposed new dwelling is also required as its likely effect on the area’s

   character.

2. It is curious to note that during the time when Mr Dalton and his Architect were

   discussing the matter with the Council officers who were assessing the application,

   the reaction they appeared to be receiving was a positive one. The material before

   the Court indicates careful and competent assessment of the matter by the officers

   concerned.

3. The application was made on 28 March 2000 and a report recommending approval

   of it was prepared by the responsible Council officer in late June. However the

   matter went no further. At the hearing the Council were able to call evidence from

   staff members, an Architect and Town Planner, which supported a refusal of the

   application but it seemed that these officers were not involved in the original

   assessment of the proposal.

4. Why the matter foundered is not enitrely clear. It was submitted that certain

   material placed before the Court provides a plausible explanation for what occurred.

   While there may be something in this (and one can readily understand Mr Dalton’s

   frustration at the way in which the matter was handled) it is unnecessary to dwell on

   this feature of the case as it has no bearing on the outcome of the appeal. The

   appeal is a re-hearing “de novo” and must be decided on the evidence adduced at

   court.

5. “Streetscape” is not defined by the Town Plan proper but is a concept which is well

   enough understood in the town planning context. A useful and acceptable

   definition of streetscape is found in Council Planning Policy 7.3.3 (which was

   adopted on 9 February 1999) as in these terms:-

   “Streetscape for the purposes of this policy comprises:- all of the visible components within a street including:-

· topography, land forms and vegetation;

· street arrangements and patterns;

· widths (including arrangement of carriageways, paths, verges
etc);

· property shapes and sizes;

· street trees and planting;

· various other items in the street (are stoplights and street
furniture);

· housing types and size.”

1. In my view of the matter the Council’s case focused upon the last of these elements

   at the expense of the others which (particularly the first five) have a large role to

   play in this matter. The subject land is in the more elevated area of a steep hill.

   Watson Street rises sharply from the south and, after passing the subject land

   descends sharply to the north. A little short of the crest the street divides, the

   southbound section becoming substantially lower than the northbound section.

2. The more elevated area in which the subject land is found is dominated by a large

   fig tree (in respect of which a Vegetation Protection Order has been made) and

   other vegetation. The influence of this vegetation is pronounced in the immediate

   area and is noticeable when the hill is viewed from a distance.

3. Immediately to the south of the subject land is a house which is a mix of

   architectural styles and one then encounters the old and very attractive Wilston

   House which is of considerable heritage value. Apart from Wilston House, in the

   area in which the subject land will be a visual element, the major influences are a

   number of recently built and substantial dwellings of modern design and obvious

   architectural merit. Only one adjoining owner objected to the proposal. To the

   north, and across Crane Street (which is a short blind street) is a substantial and attractive modern dwelling which exerts a strong influence in the area’s character

   when appreciated from near and afar.

4. I was assisted in my understanding of the area’s character and its architecture by

   evidence from Mr William Job an eminent Architect with long experience of the

   City’s growth and development. His evidence was given forcefully and

   persuasively and, for reasons which he carefully explained. He was firmly of the

   opinion that:-

1.	The existing dwelling (while falling within the definition of a character building) is of very limited aesthetic merit as such.
2.	It contributes little if anything (in a positive way) to the visual character and amenity of the streetscape which is relevant to its situation.
3.	Its removal would not adversely the visual character of the streetscape.

1. The Council officers were less persuasive in their evidence. In identifying the

   relevant streetscape they went well beyond the area in which the subject land would

   influence and be influenced by the streetscape of which it is (factually) a part. In

   this sense they took into account the lower northern end of Watson Street which has

   admittedly more of a “character house” setting but which has little impact upon

   (and is not greatly influenced by) the setting in which the subject land is found.

2. The Council witnesses were prepared to bring into account dwellings which, by

   definition, were character buildings but which, in fact, had little if anything to

   contribute visually to their surrounds. Their evidence fell well short of raising any

   doubts about the validity of the views expressed by Mr Job.

3. As to the proposed dwelling there was little if any, dispute that it was of

   considerable architectural merit. Its important design features were carefully and

   competently explained by the Architect, Mr Macchia.

4. Mr Job observed:

   “As the site is located in an elevated position one would reasonably expect to see the site developed to take advantage of the view and breezes. The proposed building is designed to take in all these advantages and will have no unacceptable impact on the streetscape or amenity.”

   He was well satisfied that the intended dwelling would enhance the area’s character

   which will, when the proposal takes its place in it, consist of a “rich variety of

   Queensland architecture from the middle of the nineteenth century through to the

   twenty-first century”. I accept his evidence in this respect.

5. On the whole of the evidence I find that:

1.	The removal or demolition of the existing dwelling would be unlikely to adversely affect the visual character and amenity of the streetscape or a component of the streetscape.
2.	The design of the proposed new building would complement and enhance the character of the area.

1. For these reasons I am satisfied that the onus is showing that the application is one

   that should be approved as being discharged. Accordingly the appeal will be

   allowed.