Savage v Brisbane City Council
[2006] QPEC 19
•10 March 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Savage v Brisbane City Council & Anor [2006] QPEC 019
PARTIES:
ALISTAIR EDWARD SAVAGE
Appellant
and
BRISBANE CITY COUNCIL
Respondent
and
NICK KOTSOMITOS
First Co-respondent
FILE NO/S:
P&E Appeal No BD 2002/05
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
10 March 2006
DELIVERED AT:
Brisbane
HEARING DATE:
5, 6 and 8 December 2005
JUDGE:
Rackemann DCJ
ORDER:
The appeal will be dismissed
CATCHWORDS:
COUNSEL:
Mr P Smith, of counsel, for the appellant
Mr T Trotter, of counsel, for the respondent
Mr Keim SC, for the co-respondent
SOLICITORS:
Plastiris Meredith Mohr for the appellant
Brisbane City Legal Practice for the respondent
Angelo Cominos & Associates for the co-respondent
INTRODUCTION
The appellant, who resides at 20 Rupert Street, Windsor, appeals against the Council’s decision to approve a Development Application relating to land situated at the corner of Rupert Street and Flower Street.
The subject site has an address of 12 Flower Street. It is a regularly shaped allotment comprising an area of 802m2.There is currently an old, somewhat neglected, “Queenslander” style character house on the property, set well back from the Flower Street frontage.
The proposal was described in the negotiated decision notice as a 3 unit multi-unit dwelling. One of the units is the existing house, which is proposed to be renovated, relocated within the site towards the Flower Street frontage and rotated 90º. The other two units are to be at the rear of the property, in a new building oriented to Rupert Street.
Public notification of the application attracted a number of submissions. The appellant, who lives beyond a bend in Rupert Street away from the subject site, was the only resident of Rupert Street who objected to the development. The owners of 18 Rupert Street gave the application their full support. The owners of 10 Rupert Street confirmed that they had no objection and expressed their ‘consent’ for the then plans.
The appellant opposes the proposal, principally on the basis of design/character issues. Particular attention was focussed on the roof form of the proposed new building. This is not a case where specific amenity impacts, such as overshadowing, loss of privacy or the like, were said to militate against approval.
I had the benefit of evidence, including oral evidence, from three architects, Mr Scott and Mr Leith, who were called by the co-respondent, and Mr McDonald, who was called by the appellant. While each was helpful, I was most impressed by the evidence of Mr Scott, who has extensive experience, gained from his years in the employ of the Council and more recently as a consultant, in dealing with development of this nature. His evidence revealed a carefully considered and balanced approach.
CITY PLAN
(i) Character Protection
Being one of the older suburbs of Brisbane, Windsor features a number of buildings of traditional character, developed in the period prior to the end of the Second World War. The provisions of City Plan are sensitive to the character which results from that built form. The Grange District Local Plan, within which the subject site is located, contains a number of development principles which include the following:
“2.1The character of the Grange district is to reflect its main period of development between the 1880s and 1945, known as ‘timber and tin’ or ‘timber and tile’.
2.2New housing is to remain in keeping with traditional character elements.”
It is not every property or every street however, which is of that character. Rupert Street has a very mixed character, whereas Flower Street is, with some exceptions, more “intact” in terms of traditional character. That is reflected in the more detailed controls.
City Plan contains a number of mechanisms by which buildings or the character of streets can be protected.
First, individual buildings can be included in the register of heritage place sites. That is the case with “Kirkston”, within Rupert Street itself.
Second, the Character Residential Area classification could be placed over a particular area. That classification features a relatively strongly worded statement of intent and relatively strongly worded statements of desired environmental outcomes. All Character Residential Areas are included in the Demolition Control Precinct.
Third, the area can be included within a Demolition Control Precinct even where it is not in a Character Residential Area. Applications for specified development by way of demolition, removal or repositioning of a building within such a precinct attracts the Demolition Code, while the Residential Design-Character Code (the “Character Code”) is used in assessing applications for a house or a multi-unit dwelling within a Demolition Control Precinct in a Residential area. The purpose of the two codes, in conjunction, is to “ensure that precincts of houses constructed in or prior to 1946 are retained and redevelopment in those precincts complements the houses constructed in or prior to 1946”.
Apart from the “Kirkston” heritage place, no other lot in Rupert Street (apart from the subject site) is subject to any such protective controls. Land in both streets is included within the Low-Medium Density Residential Area (LMR area), but it is only properties in Flower Street which are also included within a Demolition Control Precinct. Other than for the subject site, no property in Rupert Street is included within a Demolition Control Precinct. That reflects the different character in that street. Further, in the circumstances, and having regard to the fact that Demolition Control Precincts are said to contain minimum groups of three houses with at least two-thirds of the precinct containing pre-1946 houses[1], the inclusion of the subject site within a Demolition Control Precinct is explained by the existing house on the subject site and its relationship to the other properties within the precinct, rather than its relationship to other properties in Rupert Street, none of which are included within the precinct.
[1] See Ch 2 page 17 s 4.2.2.4
One of the consequences of the decision not to apply any of the protective provisions to the properties in Rupert Street, other than Kirkston House, is that any proposal to demolish an existing house and replace it with another house, even if of quite contemporary design, would not be subject to either code assessment or impact assessment. Neither the Demolition Code nor the Character Code would be triggered. The replacement house would be simply self assessable against the House Code, which does not contain provisions of the kind found in the Character Code, regarding traditional character.
The applicant’s response to the site context has been to propose a relocation of the existing character house towards the Flower Street frontage, where it can make a better contribution to the traditional character within the Demolition Control Precinct and, in particular, the southern part of Flower Street in which it is situated. At the same time, the development potential indicated by the LMR area designation is to be achieved by a new building at the rear of the site, which would be largely obscured from Flower Street and oriented towards Rupert Street, to which it would present, as Mr Scott attested, as a “welcome and stylish, modern addition” to the mixed character of that street. That response appears logical and appropriate given the context. It is also one which sits well with the intent of the LMR area.
(ii) The LMR Area
Within the LMR area, multi-unit dwellings which comply with the Residential Design-Low Density, Character Residential and Low-Medium Density Code (the “LMR code”), are impact assessable “generally appropriate” development. Otherwise they are impact assessable “generally inappropriate” development. The level of assessment table nominates the relevant codes as the LMR Code and, where located in the Demolition Control Precinct, the Character Code.
The intent for the LMR area is that it contain a “mix of houses up to two storeys and two and three storey multi-unit dwellings and single unit dwellings”. Given that intended mix, it is obviously desirable for new multi-unit dwellings within the area to be designed so as to “co-exist comfortably with neighbouring houses”. That does not mean that multi-unit dwellings must be of the same size and appearance as the neighbouring house. Rather, as the first Desired Environmental Outcome (DEO) states, the intent is for “houses, among multi-unit development at a house compatible scale, predominantly of no more than two storeys”. The statement of intent provides that:
“This will be reflected in the intensity and scale of development and a strict adherence to a maximum gross floor area of 50 per cent, or 60 per cent if in close proximity of public transport or on arterial roads.”
No issue is taken with the gross floor area of the proposal as amended and I am satisfied that the proposal, including the new building, would co-exist comfortably with neighbouring houses.
The statement of intent also recognises that parts of the LMR area are included in Demolition Control Precincts. The statement of intent provides that: -
“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.”
The fourth DEO provides that:
“In Demolition Control Precincts pre-1946 buildings are largely retained and new buildings reflect many of the precincts architectural themes.”
The application responds to the above provisions by incorporating the pre-1946 dwelling at the front of the new development and positioning and orienting the new building to relate to the street (Rupert Street) which is otherwise outside of the Demolition Control Precinct. Further, the applicant seeks to establish not only adherence to the maximum gross floor area, but also with the more detailed provisions of the LMR code. That approach is sensitive to the intent for the LMR area.
(iii) The LMR Code
The development of multi-unit dwellings in the LMR areas is dealt with in s. 4.3 of the code. The only performance criterion is that development size and bulk must be consistent with the low to medium density of the locality. The acceptable solutions deal with matters of gross floor area, building height and site area. There is no difficulty with site area and the parties were agreed that any dispute in relation to building height or gross floor area could be resolved by the adoption of the amended proposal drawings[2], subject to conditions. Counsel for the appellant accepted that the amendments would constitute only a minor change to the proposal. I am satisfied that the proposal is consistent with the low to medium density of the locality.
[2](Exhibit 3)
The general performance criteria and acceptable solutions for multi-unit dwellings is set out in part B of the code. That part of the code has some 23 performance criteria. In the course of the hearing, attention focussed on the response of the proposed new building to the first performance criteria which is that “The appearance of building bulk must be reduced by design elements”.
I accept the evidence of Mr Scott that the proposed new building incorporates sufficient design features to satisfy that performance criteria, even if the acceptable solutions are not adopted in full. In that regard, acceptable solution A1.2 refers, in part, to “roofs include pitches, gables or skillions”. The roof form of the proposed new building, as approved, is hidden behind a parapet when viewed from Rupert Street. In the course of the hearing the co-respondent produced an alternative proposal which would add a skillion roof element, visible from Rupert Street, to the front of the building. This was something which had been suggested by one of the council officers, in the course of assessment of the application.[3] Counsel for the appellant also conceded that would be a minor change. Incorporation of that would lead to compliance with that acceptable solution. The proposed new building does not feature verandahs at the front. Acceptable solution A1.1 speaks of a combination of elements, including verandahs, being used to reduce building bulk, but, as I have already noted, the performance criterion is, nevertheless, satisfied, in my view.
[3] Exhibit 1 page 87
I am satisfied that the proposed new building complies with the performance criteria in the code.
Mr McDonald, expressed the opinion that “the proposed new building should not be seen as legitimately satisfying the purpose of the LMR code”. He pointed out that, had the building adopted a pitched roof form, which, in his view, would be required for it to satisfy character code, then it would have exceeded the 8.5 metres in height. The proposal had, he suggested, been kept within the usual parameters only by excluding what he regarded as an essential element. Particular focus was placed on the first stated purpose of the code of “ensuring new development is compatible in scale and design with neighbouring houses”.
It is obvious that the height of the building would exceed 8.5 metres if a pitched roof were placed on top of it and that the size of the building otherwise might be reduced if it were to incorporate a pitched roof within a height of 8.5 metres. That is not however, the proposal. I am satisfied that the proposal is “compatible”.
I do not consider that “scale and design” provisions require, in this context, a new building, viewed from Rupert Street, to be in keeping with pre-1946 architectural themes. That is the subject of a separate statement of purpose, relating to development in Demolition Control Precincts, and which is taken up in the Character Code, which is one of the listed “secondary” codes to the LMR code. The only performance criteria in the LMR code under the heading “character” is P11, which requires retention of buildings built prior to 1900, whether in a Demolition Control Precinct or not.
I am satisfied that the proposal complies with the LMR code. Had it not, then the application would have been required to be assessed as impact assessable “generally inappropriate”. City Plan provides that such development:
“…is not specifically envisaged in the Area. The appropriateness of a proposal in any particular circumstance will be dependant on its location, design and impacts.”
City Plan sets out a number of matters which need to be demonstrated in assessing such development. I have considered those matters. I am satisfied that the proposal is appropriate in terms of its location, design and impacts and that the matters listed in City Plan, so far as they are relevant, are satisfied[4]. Approval would be justified even if the proposal were considered “generally inappropriate” by reason of departure from the LMR code.
[4]I note that the provision dealing with “where the proposal is of a nature or scale not reasonably expected in the area” is inapplicable since, in my view, the proposal is of a nature and scale which could be reasonably expected.
(iii) The Character Code
The Character Code was a particular focus of the evidence and argument. Its purpose is to:-
“· encourage development in Demolition Control Precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing and
· 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.”
Part 4 of the code gives an explanation of “traditional character” in terms of building form and scale, street context, materials and detailing and setting. The code includes seven performance criteria, the first four of which make reference to houses nearby “in the street”.
As Mr Scott pointed out, assessment of the new building against the Character Code in terms of Rupert Street makes little sense, given the mixed character in that street. As he frankly volunteered in his report, the new building would only comply in part if assessed against the code by reference to its Rupert Street presentation, ignoring references in the code to other character buildings nearby in the street and instead looking at traditional character generally. That is not an exercise however, which the City Plan requires to be carried out.
As already noted, the inclusion of the subject site within a Demolition Control Precinct, which is a condition precedent to the applicability of the Character Code, can only be explained by reference to the existing house on site, and its relationship to other properties in the Demolition Control Precinct, particularly in the southern part of Flower Street, in which it is located. The Character Code could not sensibly be applied by reference to Rupert Street and the relationship of the proposal to houses in that street. Counsel for the appellant ultimately did not argue to the contrary. Instead, he submitted that “the proposed development must be assessed under the code as it applies to the street that forms the basis of the Flower Street DCP, namely Flower Street”.
That the site is at a corner means that the proposed new building can orientate itself to Rupert Street rather than Flower Street. As was pointed out on behalf of the co-respondent, there is every reason to believe that the land on which it is proposed to develop the new building would not have been included in the Demolition Control Precinct had it been a separate vacant lot at the time of the designation. Senior counsel for the co-respondent submitted that, on a common-sense and purposive approach, the proposed new building should be treated as not falling within the Demolition Control Precinct, such that the Character Code would be inapplicable to it.
It is however, unnecessary for me to resolve that question of construction, since I am satisfied that the proposal ought to be approved, even accepting the appellant’s construction in that regard.
It is the relocated existing house which would form the proposal’s principal presentation to Flower Street. As already noted, the contribution of the relocated house to the traditional character of the Demolition Control Precinct would be enhanced. The appellant contends however, that if the whole of the proposal is assessed against the Character Code as it applies to Flower Street, then conflict arises by reason of the proposed new building and, in particular, its adoption of a skillion, rather than traditional, roof form.
The influence which the proposed new building exerts on the presentation to Flower Street is very limited. Seen from those parts of Flower Street which are within the Demolition Control Precinct, the proposed development would present the relocated house to Flower Street with limited views to the very upper portions of the side and the roof of the proposed new building. As the co-respondent’s architect, Mr Leith, pointed out, the relocated dwelling would conceal most of the proposed new dwelling to a viewer in Flower Street immediately in front of the subject site. Flower Street is quite steep and, as one moved downhill, past the other properties in the Demolition Control Precinct, views to the proposed new dwelling would increasingly be obscured, not only by the relocated house on the subject property, but also by a new skillion roofed building being constructed within the Demolition Control Precinct on the site immediately to the south. As one moves up Flower Street, an angled view towards the Rupert Street frontage of the new building might be possible, subject to the screening effect of intervening vegetation, but at this point the Demolition Control Precinct in Flower Street is, itself, interrupted by a group of properties which have been developed with non-character buildings. Mr McDonald, in the course of cross-examination, accepted that, to the extent the new building is visible from Flower Street, it will be glimpses of parts of the building only.
Even if some conflict with the code were found to exist by reason of the proposed new building, viewed in isolation, the effect of that conflict would be relatively minor and the proposal, viewed as a whole (including the relocated house), would still make an enhanced contribution to the traditional character in the Demolition Control Precinct while the proposed new building would make a positive contribution to Rupert Street. Approval would be warranted notwithstanding a degree of conflict, were that found to exist. Further, as is discussed later, the planning grounds supporting the application are, on balance, sufficient to justify approval, notwithstanding the degree of alleged conflict. I do not however, consider that there is conflict.
Those parts of the new building which might be seen above the relocated house from Flower Street would present weatherboard and ply external sheeting at the upper levels, and the edge of a sloping metal roof in the rear section. With the adoption of the alternative proposal, one would also see the profile of the skillion at the front of the building. Attention, in this respect, was particularly focussed upon the failure of the proposal to adopt a pitched roof form. This was seen by Mr McDonald as a major deficiency.
Medium pitched pyramids, hips or gables are the roof forms referred to in the explanation of “traditional character” in s.4 of the code. Acceptable solution 5.1 also refers to “predominant roof forms” including one or more of a combination of pyramids, hips or gables of a similar pitch and proportion to those of pre-1946 houses nearby in the street. The performance criteria are, as one might expect, less specific. They refer variously to roof forms that “complement” roofing styles of pre-1946 houses nearby in the street[5] and that roof form must “reflect” traditional roofs in that part of the Demolition Control Precinct. Counsel for the appellant sought to draw something from the difference between “complement” and “reflect”. I am not persuaded that much turns on that. As has often been said, planning schemes are generally not drafted by lawyers or with the precision one might expect of an Act of Parliament and ought not be constructed in a pedantic way. The purpose of the code stops short of requiring complete adoption or reproduction of pre-1946 housing character. Instead, it speaks of reflecting or strengthening such character through “compatible” form, scale, materials and detailing and ensuring that redevelopment “complements” pre-1946 houses.
[5]P1
Examples of traditional roofs in the Demolition Control Precinct vary and include hips and gables of the type which can be seen on the house which is to be relocated within the site. I note that the adjoining property to the immediate south is a modern dwelling, with a skillion roof, which was approved within the Demolition Control Precinct. Mr Scott had a hand in its approval while he was employed by the Council.
It should be noted that the proposal, as a whole, does present a traditional roof form to Flower Street, by reason of the relocation of the existing house towards that frontage. Indeed, that traditional roof form is the most prominent roof form which the proposal presents to the street. Mr Scott’s opinion is that, in the circumstances, the roof form of the new building, judged from Flower Street, also sufficiently “complements” or “reflects” to satisfy the performance criteria, although that would be “more definitely or more obviously” so if the alternative proposal, with the skillion roof towards the front of the house, was adopted.
Mr Scott pointed out that, whereas from Rupert Street, the proposed new dwelling (not the alternative proposal) had a roof concealed behind parapets, the presentation to Flower Street presents the angled line of a skillion roof seen against the sky, which picks up on some attributes of traditional roofs and would, in his opinion, sit comfortably behind the more prominent traditional roof of the relocated house, which forms part of the proposal, and with other traditional roofs in the street. I accept that evidence. I am also satisfied, consistently with Mr Scott’s evidence, that the proposal, as judged from Flower Street, does not otherwise conflict with the Character Code.
(iv) The Demolition Code
The rotation of the existing house was also controversial, but assumed much less prominence in the case. This is, ultimately, a matter which goes to conditions. The rotation of the building alters separation distances and provides for greater amenity for occupants of the house, by its orientation towards the city.
The Demolition Code provides relatively little assistance. None of the Performance Criteria appear particularly relevant to the relocation of a house forward within an existing allotment. Mr McDonald pointed to the explanation of traditional building character, set out in part 4 of the Demolition Code, which, in discussing “setting” provides that:-
“the setting of new buildings can detract from the character of a street if garages dominate, or if fencing, orientation or setbacks conflict with the established settings.”
He contended that the rotation conflicted with the established setting in terms of orientation.
The effect of the rotation is that the part of the house which currently faces Rupert Street would, instead, face Flower Street. The rear of the building would, in turn, then face Rupert Street. Currently, the house presents a multi-gabled front to Flower Street. After rotation, the new Flower Street elevation would feature a single gable and a prominent entry veranda, which would continue to function as the house entry. The current rear elevation, which would become the elevation to Rupert Street, consists primarily of a long veranda with access stairs at one end. This veranda is proposed to be opened up when the house is rotated. Both the new Flower Street elevation and the new Rupert Street elevation would be attractive.
While Mr Scott frankly conceded that the subject house has most to offer if it is relocated without being re-orientated, his view, which I accept, is that the house once rotated would also contribute positively to the visual character of both streets and, in particular, Flower Street, with its identified traditional character. I accept that evidence. I am satisfied that the existing house will make an enhanced contribution, notwithstanding its rotation. The rotation is, in the circumstances, acceptable.
(v) Other Provisions
The appellant’s case, and the evidence of Mr McDonald, placed a degree of emphasis upon general statements drawn from the city-wide DEO’s, the Strategic Plan, the Local Area Plan and provisions relating to the LMR area. It is unnecessary to discuss each of the provisions in turn. It may be accepted that those parts of the planning scheme contain provisions which variously promote a clear sense of identity for local communities[6], development which is sympathetic[7] and enhances character[8], development in the residential neighbourhoods which respects and is compatible with local character and, in the older suburbs (where much of the “timber and tin” housing will remain) new development which reflects traditional design elements while allowing for innovative design responses[9], development in the LMR area which is designed to co-exist comfortably with neighbouring houses, new development in the Demolition Control Precincts, which reflects pre-1946 architectural character and, in the Grange district, new housing which remains in keeping with traditional character elements[10]. Mr McDonald saw the proposed new building as conflicting with such provisions. Counsel for the appellant submitted that the proposal was not a sympathetic response to the character of the area.
[6]See part 2 of chapter 2
[7]See City-wide DA 3.2.2.4(e)
[8]S.3.3.2.2(c) of the City-wide DA
[9]S.4.2.2.4 of part 4 of chapter 2
[10]See part 2 of the Grange District Local Plan
City Plan, as with any planning scheme, must be read as a whole[11]. That is particularly important in the context of IPA planning schemes, which are typically voluminous and multi-tiered documents which almost invariably contain numerous provisions which touch upon areas of relevance at some level[12]. Indeed the court was provided with an 84 page bundle of relevant extracts from City Plan in order to consider this application, which is otherwise relatively uncomplicated. While impact assessment is carried out against the whole of the planning scheme, it would be wrong, as the court has pointed out on previous occasions, to confine attention to certain passages, which express objectives of relatively wide application, to the exclusion of other parts of the scheme, including the more detailed provisions, particularly where the planning scheme descends to more specific designations which are City Plan’s derivative from those statements of planning objective[13]. When City Plan is read as a whole, including those more detailed provisions, it can be seen that the various designations have been selectively applied in pursuit of relevant planning objectives.
[11]See Luke v Maroochy Shire Council & Anor (2003) QPELR 447
[12]See Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPELR 3 at para 16
[13]See Crane v Brisbane City Council (2004) QPELR 1 at 4 and Gorman v Brisbane City Council (2004) QPELR 29 at page 32
The application of the Demolition Control Precinct recognises the different character in Flower Street and Rupert Street and that the contribution of the subject site to traditional character in the area lies in its contribution to the character of that precinct which applies in Flower Street, but does not extend beyond the subject site in Rupert Street. The subject proposal will enhance that contribution. At the same time, it will promote the strategic objectives of providing for a diversity of housing types by providing a new 2 unit dwelling, of an appropriate scale, which will sit comfortably and discreetly with the houses in the Demolition Control Precinct, when viewed from Flower Street, while also making an appropriate contribution to the mixed streetscape of Rupert Street, comprising houses which, with the exception of Kirkston House, are not protected. The proposal is, I am satisfied, a sympathetic response to the character of the area.
I do not consider that the proposal would compromise the achievement of the DEO’s nor conflict with the planning scheme, read as a whole.
PLANNING GROUNDS OVERALL
Had I concluded that the appellants were correct in asserting conflict, particularly by reason of a failure, in the design of the proposed new building, to adopt a traditional roof form or otherwise respect the provisions relating to such things as design and character, then I would have concluded that the planning grounds supporting the application were, on balance, sufficient to warrant approval notwithstanding the conflict. The design approach, in this case, recognises the particular context of the site, which lies at the corner of two streets of different character. This is not a case where the proposal simply fails to have any significant adverse effect. As already noted, the relocation of the house towards the Flower Street frontage will enhance the contribution made by that character house. The provision of a multi-unit dwelling will make a positive contribution to the provision of the diversity of housing, which is encouraged by City Plan, and will do so at a density consistent with the LMR designation. The new dwelling will, I am satisfied, also be a welcome and stylish, modern addition to Rupert Street.
CONCLUSION
The co-respondent has discharged its onus and the appeal will be dismissed. I will, at this stage, adjourn the further hearing and allow the conditions of approval to be settled. Those conditions ought to include adoption of the alternative proposal with a skillion roof.
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