Mills v Brisbane City Council

[2000] QPEC 49

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Mills v. Brisbane City Council [2000] QPE 049
PARTIES:	IAN MILLS                   Appellant And BRISBANE CITY COUNCIL          Respondent
FILE NO/S:	Appeal No 325 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	25th. August 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Judge Quirk
ORDER:	Appeal allowed
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This appeal raises a fairly short point.  It arises out of the refusal of an application for a development permit to facilitate the removal of 2 detached houses facing Gympie Road and the redevelopment of the subject land as a vehicles sales yard and caretakers residence.

1. The essential reason for refusing the application was expressed in this way -

"Following a character study of the area the removal of these Character Houses and the development of the Vehicle Sales Yard in their replacement will adversely affect the character and amenity of a component of the streetscape including a strip of 9 character houses side by side.   Howell Street also has a strong component of traditional character buildings.  The proposed Vehicle Sales Yard is a prohibited use in the Residential "A" zone and the proposal is considered an inappropriate replacement for the character Houses, therefore approval for the removal of the character houses can not be granted and hence approval for the proposed Vehicle Sales Yard can not be approved."

1. The subject land is at the intersection of Gympie Road and Howell Street to which it has frontage of 65 meters and 27 meters respectively.  Three detached houses presently stand on the land and it is proposed that one of these (No 320) will be retained on site although relocated and modified for use as a caretakers flat and office premises for the car yard.  Appropriate landscaping of the site is intended.

1. Notwithstanding the stated reasons for refusing the application, no real issue was made about as to the suitability of the proposed use of this location.  In view of what else has occurred in the area this is hardly surprising.  There was a submitter in respect of the application who later joined as a co-respondent but has since withdrawn.   Although evidence was received in respect of traffic matters, noise issues, landscape architecture and town planning, the only real dispute related to the loss of character housing.

1. The relevant provisions of the Town Plan appear in s.7.2 which deal with the development in the Residential "A" zone.  In the "intent" provision, the following passage appears -

"Heritage and Character Buildings

Council recognises that Heritage and Character Buildings can contribute significantly to a neighbourhood streetscape and should be retained where possible.  Accordingly, proposals involving the demolition or removal of existing Heritage and Character Buildings, particularly traditional Character Housing, will be subject to the consent of Council."

1. As the buildings in question are not heritage buildings, more particularly relevant to the appeal is s.7.2.6.3 which relevantly provides -

"an application for consent in relation to the demolition or removal of a building …  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;".

1. Accordingly the determinative question in this appeal is whether the removal of these dwellings would be unlikely to adversely affect the visual character and amenity of the streetscape of Gympie Road or a component of that streetscape.

1. A comprehensive definition of streetscape is given in policy 7.3.3 which is intended -

"To describe the procedures and types of applications necessary to allow for demolition of a building located within the Heritage and Character Building Area."

The relevant definition is -

"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

§  Street widths (including arrangement of carriageways, paths, verges etc.)

§  Property shapes and sizes

§  Street trees and planting

§  Various other items in the street (bus stop, lights and street furniture)

§  Housing types and size".

1. A very interesting and informative assessment of the matter was provided, on behalf of the appellant, by Mr Allom, an architect with wide experience particularly in relation to the care and conservation of historic places.

1. Mr Allom traced the history of this part of the city pointing out that since the early days of Brisbane, Gympie Road has served as an important traffic artery.  The houses in question are of pre-War construction but have been altered to some extent since that time.  He commented -

"No evidence has been found to indicate that these houses were designed by an architect or architects and it is possible that the houses were built without involvement of members of the architectural profession.  The buildings display no features that set them apart from other buildings of their type and the styles represented are indeed common throughout Brisbane, many in the relatively pristine residential areas which enjoy a high level of amenity unaffected by traffic or other extraneous factors."

1. As to Gympie Road itself, he pointed out that its streetscape has altered dramatically since the 1960's when trams were withdrawn and the whole of the carriageway was given over to motor vehicular traffic.  Streetscape involved, as he noted, a good deal more than the buildings that lined the street though of course they are an element of it.  In the period to which he referred along Gympie Road a proliferation of new uses has replaced traditional housing.  Existing land uses are now indicative of its role as a major thoroughfare.  Many car yards have taken their place along the road as have a variety other retail and commercial uses.  Mr Allom observed -

“Land uses in Gympie Road are indicative of its role as a major thoroughfare.  There is of little consistency among the types and form of buildings, the position of buildings on their lots, or the types of land uses contained within the area.  Privately owned land is dominated by commercial rather than residential use."

1. It is accepted that it would be unrealistic to attempt the relevant identification of streetscape by taking into account the entire length of Gympie Road but, in the vicinity of the subject land one can find (immediately to the north of Howell Street) 2 large and busy fast-food outlets.  Additionally, in the near vicinity, there are car yards, a tyre retailer and an in-door bowling alley.  On the opposite side of the arterial road retail and commercial centres containing restaurants and other facilities are located.

1. In Mr Allom's opinion one of the most visible and obvious components of the streetscape is the extraordinarily high and relentless volume of traffic which it carries throughout a 24 hour period.  He noted -

"The high level of traffic on Gympie Road both during the week and on weekends can be identified as a element of this streetscape.  It is one of the most visible and obvious components of this section of the street.  The road is very wide with 3 lanes of traffic in each direction which contrast with more usual residential streetscapes.  The high level of traffic along Gympie Road has resulted in the degradation (in residential terms) of the former character of the area.  This degradation has been reinforced by the replacement of much of the original building stock with the introduction of new land uses such as retail and commercial developments in the last 30 years.  These uses have predominantly those that require high visibility to potential customers and large volumes of passing trade such as new and used car yards, large scale retail and commercial outlets and fast-food outlets".

1. Mr Allom pointed out that the visual character and amenity of Gympie Road in this locality is in sharp contrast to that of Howell Street.  This is a cul-de-sac upon which a traffic calming device has been placed some distance from its intersection with Gympie Road (presumably to allow for the activities of the fast-food outlets).  This device constitutes an effective threshold beyond which is found a pleasing amenity involving older style housing very well presented and in generally excellent repair.  Any activity on the subject land would, in his opinion, have little impact on the character and amenity of the relevant part of Howell Street.

1. Mr Allom conceded that the houses in question are found within a small group of housing of similar age and construction between Howell Street and the corner store at Cremorne Road.  It was his opinion however that this group contributed little, in any real sense, to the visual character and amenity of Gympie Road in this locality.  He concluded that the removal of the houses will not have any adverse affect on that visual character and amenity.  I am satisfied that the assessment of Mr. Allom was well explained and pursuasive.  I accept it.

1. Mr Scott, the council's architect, took a more narrow view of the matter, focusing upon the group of 9 houses between Cremorne Road and Howell Street to which I have just referred.  His stated opinion was that -

"Remanent groups of traditional housing on busy roads such as Gympie Road have a prominence due to the large numbers of people who see them every day and an importance based on their increasing rarity as they are replaced by anonymous commercial development with little or not sense of Brisbane identity.  This group of character buildings is an important component or an important part of the component of the streetscape visually extending from the crest of the road at Strathmore Street/Castle Street to the north and the kick in the road directly to the south of the intersection with Sadlier Street."

1. His conclusion was that -

"The demolition or removal of the 3 subject houses would reduce the size of this group of houses by a third and have a significantly detrimental effect on the traditional character of this component of the streetscape."

1. Somewhat surprisingly he was prepared to say -

"The northern-most subject building is also part of the streetscape of Howell Street which has a predominance of character houses.  The demolition or removal of the subject house at No. 320 Gympie Road would have a significantly detrimental effect on this streetscape also."

On that point I have no hesitation in accepting the evidence of Mr Allom.   The streetscape of Howell Street that is, in planning terms, worthy of protection is found beyond the threshold of the calming device.  What is here proposed will have little if any impact on that.      

1. While I am grateful to Mr Scott for his assistance in the matter I regret that I found his appreciation of that component of the streetscape that will be affected by this proposal a little too narrow and prefer the assesment of  Mr Allom.

1. I appreciate that, since earlier decisions in this court, the relevant provision has been amended to include the words "or a component of the streetscape".  However I do not believe that it alters the outcome in this appeal in that the adverse affect at which the provision is aimed should be fairly and reasonably be seen to be upon a sufficiently influential component of the streetscape which these measures are intended to protect.  I believe that the streetscape of Gympie Road at this location has been correctly characterised  by Mr Allom and his conclusion is not weakened by these additional words.

1. Accordingly the determinative issue is resolved in favour of the appellant.  I find that the onus of showing that the application is one that should be approved has been discharged and the appeal will accordingly be allowed.