Razia Developments Pty Ltd v Brisbane City Council

[2004] QPEC 59

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Razia Developments Pty Ltd v. Brisbane City Council [2004] QPEC 059

PARTIES:

RAZIA DEVELOPMENTS PTY LTD
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

FILE NO/S:

130 of 2004

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against Council’s refusal of an application for a development permit for building work

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

21 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20-21 September 2004

JUDGE:

Senior Judge Skoien

ORDER:

Appeal dismissed

CATCHWORDS:

Traditional building character of pre-1946 house

COUNSEL:

Mr W Cochrane for the appellant

Mr B Job for the respondent

SOLICITORS:

MacDonnells for the appellant

Brisbane City Legal Practice for the respondent

1. This is an appeal against the Council’s refusal of an application for a development permit for building work, being the demolition of a pre-1947 dwelling house on land at 27-29 Headfort Street, Greenslopes.  The appeal does not concern any future development of the land.

The House

1. The land upon which the house stands comprises two lots with a total area of approximately 810m² and is located on the northern side of Headfort Street, towards its eastern end.

1. It was not disputed that the house was constructed before 1946.  It is a single level house elevated approximately one metre above the ground at the front rising to two metres at the rear as the land falls away from the street.  The stumps upon which the house was originally supported have been replaced by a brick base.

1. The house is in good condition.  It is of timber construction, clad with weatherboards, and has timber casement windows.  The hipped roof is sheeted with corrugated iron, with a medium pitch and has generous timber lined eaves, which obviate the need for separate sunhoods.

1. While there was some doubt expressed on the point, I am satisfied that the previously open front veranda has since been enclosed.  As Mr Scott, an architect called by the Council, said, this had not completely obscured its former character.  The solid balustrade appears unchanged, the infill glazing is above handrail height and the glazing in the corners and entrance doors maintains some of the appearance of an open veranda.  The veranda has decorative features such as paired posts on its exposed corner and around the entranceway, solid, bell-curved balustrades and notched weatherboards.  The veranda’s roof is also sheeted in corrugated iron.

1. Alterations have been carried out to the house by extensions to the eastern side and to the rear.  The alterations are sympathetic to the original house.  From the street the fact that there are alterations is not particularly obvious.

1. Mr McDonald, an architect called by Razia, thought that the siting of the building on the land was consistent with the predominant pattern in the street in that it is set back uniformly with the neighbouring houses and its height is consistent with those nearby.  That was consistent with my inspection of the street.

The Street

1. Headfort Street runs for approximately 350 metres in an east-west direction from Nicholson Street to Newdegate Street.  Lot sizes in the street are the standard 400 to 800m² approximately with 10 to 20 metre frontages and 40 metre depths.

1. Mr Scott was of the opinion that the street was one “… with a predominance of simple traditional cottages which gives the street, and particularly the eastern half of the street, a distinct, unpretentious, traditional Brisbane character.  The subject house contributes to this character”.  Mr McDonald did not dispute that the street possessed traditional building character.  He also considered that the street was “…characterised by a range of pre-1946, traditional house styles”. 

The Application

1. The application was lodged with the Council on 4 August 2003.  It was one which required “notifiable” code assessment under the City Plan.  Forty pro-forma type submissions lodged against the proposal included grounds relating to the character

of the house, and its location within “… a grouping of pre-1946 character housing of uniform setback and frontage, similar roof pitch and built with the same building materials of timber and tin”.

1. On 18 December 2003, the application was refused on the basis of non-compliance with the Demolition Code, in particular with the Purpose, Performance Criterion (P1) and the corresponding Acceptable Solutions.

City Plan

1. The Residential Areas provisions of the City Plan (Ch 3, s.5) record that:

“an important characteristic of the City’s older suburbs is the ‘timber and tin’ architecture.  Demolition Control Precincts are locations in the older suburbs where pre-1946 housing is still dominant.  Specific provisions apply in the Demolition Control Precincts to preserve and complement much of this architectural character …”

1. The Statement of Intent for the Low-medium Density Residential Areas (Ch 3, s.5.4.1) provides:

“Parts of the Low-medium Density Residential Area are included in the Demolition Control Precincts.  At these locations pre-1946 housing will be retained and new development will reflect pre-1946 architectural character.  Where feasible, development in Demolition Control Precincts will incorporate pre-1946 dwellings at the front of the new development”. (emphasis added)

1. That intent is reflected in the Desired Environmental Outcomes for the Area (Ch 3, s.5.4.2 – DEO 4).

1. The land is also included within the Holland Park – Tarragindi District Local Plan (“the Local Plan”) area.  The development principles for the Local Plan include that “groupings of pre-1946 character housing will be protected” … (Ch 4, p70a, s.2.2).

Assessment of the application

1. The manner in which a local government (and the court) is to decide a code assessable application is prescribed by section 3.5.13 of the Integrated Planning Act 1997 (“IPA”).

1. At Ch 3, p9, 2^nd column of City Plan is the statement that “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 …  A proposal which fails to comply and cannot be conditioned to mitigate impacts will be refused”.

1. The Level of Assessment Table for the Low-medium Density Residential Area confirms that the proposal requires “notifiable” code assessment against the Demolition Code (Ch 3, s.5.2.3). Pursuant to s.3.5.4.(2) of IPA, the application is to be assessed only against that Code and the “common material”.  (Schedule 10 of IPA  defines the ‘common material’ for a development application to mean all of the material about the application received in the first three stages of IDAS, including submissions).

The Demolition Code

1. Reference to the Demolition Code itself confirms that in this instance it is to be read as “…being the Purpose, Performance Criteria and Acceptable Solution” (Ch 5, p.69, s.2).

1. The purpose of the Demolition Code is relevantly to:

·      “protect the buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity”; and

·      “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 1946”. (Ch 5, p69, s.3)

1. Section 4 of the Code provides an explanation of “traditional building character”.  It is described as being made up of elements including:

(a)     street context – traditional subdivision patterns are reinforced by “traditional building form of a single level house elevated on stumps”, resulting in a reasonably uniform scale with uniform spacing between houses;

(b)     building form and scale – the predominant traditional building form of pre-1946 housing is described as being “a solid core with attached or integrated verandas raised above the ground on timber supports.  Enclosed areas underneath generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandas.  Roof forms are medium pitched pyramids, hips or gables”;

(c)     materials and details – “the character of the older suburbs is influenced by elements such as eaves, sunhoods, verandas, lattice screens and batten panels.  …. Character is also derived from the limited range of materials available at the time of construction.  This provides a unifying theme of painted timber walls and corrugated steel roofing”; and

(d)     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.

1. The relevant Performance Criterion of the Code for the purposes of this appeal is P1 which requires that a building which may be demolished:

“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.”

1. The relevant corresponding Acceptable Solutions are:

“A1.1    The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946; or

A 1.3     Demolition of the building will not result in the loss of traditional building character within the street; or

The Issues

1. Razia’s case was that the house did not have the appearance of being constructed prior to 1946, and did not represent traditional building character.

1. I accept the submission of Mr Job, for the Council that while the explanation of the term “traditional building character” in section 4 of the Code and the various elements of that explanation may be seen as a useful guide, it is only an explanation.  It is not, and does not purport to be, a definition.  The explanation speaks in generalities (see the use of “predominant” and “generally” referred to in para [21](b) above).  If it had been intended to be used as an all-encompassing definition, the term would have been included amongst the City Plan’s definitions in Chapter 3 and would have been drafted in accordance with typical planning scheme definitions which require the presence of various elements to qualify as falling within the particular description.  I do not read the Code as suggesting that “traditional building character” denotes some type of prototype from which only minor deviations of style are permitted.  To accept that would be to accept that architects and builders of the period were devoid of flair, artistry, experimentation and individuality.

The Evidence

1. Mr Scott, who was involved in the formulation of the Council’s character preservation controls, was of the opinion that the house possesses a range of features (including its timber construction; medium pitch, hipped roof sheeted with corrugated iron, single level, elevated above the ground, timber weatherboard and evident front veranda with its decorative features attached to the solid core of the dwelling) which give it the appearance of being constructed prior to 1946, and consequently has a traditional building character.  Rather than detracting from its pre-1946 appearance, Mr Scott considered that the less common features of the house represent innovative detailing and that although such features are found on both pre-war and post-war houses they do not deprive the house of a pre-1946 appearance.  He considered that the house represents “… a transitional style of Queensland house with its roots in the style of the interwar period but with features which anticipate post-war housing”.

1. Mr McDonald’s evidence was that the house lacks a pre-1946 appearance.  But he conceded that the house has important features which distinguish it from the “austere” post 1946 houses (including for example the veranda and iron roof), and indeed possesses many of the features of the interwar house.

1. I obtained a great deal of assistance from the evidence of both architects.  They gave their opinions lucidly and fairly, making appropriate concessions to meritorious opposing suggestions.  Their differing opinions on the character of the house reflected shades of emphasis rather than diametrically conflicting beliefs.

1. It is not necessary to analyse every feature relied on by each architect or each concession made by him.  In the upshot I accept Mr Scott’s evidence and find that, while the house is certainly not a remarkable example of the traditional pre-1946 house, there are sufficient important features of the house to qualify it as falling within the traditional building character of a pre-1946 house.

Conclusion

1. The appeal is dismissed.