Urban Properties Pty Ltd v Brisbane City Council

Case •

[2003] QPEC 31

•

23 July 2003

DISTRICT COURT OF QUEENSLAND

CITATION:

Urban Properties Pty Ltd v Brisbane City Council [2003] QPEC 031

PARTIES:

URBAN PROPERTIES PTY LTD
Appellant
v
BRISBANE CITY COUNCIL
Respondent

FILE NO:

Appeal No BN1235 of 2003

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

14-16 July 2003

JUDGE:

Skoien SJDC

ORDER:

In due course the appeal will be allowed and Urban Properties application approved.  In the meantime the appeal is allowed to permit the parties to attempt to agree any conditions of the approval.

CATCHWORDS:

Code assessable development; increase in height of building adjoining heritage building; whether view of heritage building impaired

COUNSEL:

Mr G Gibson QC, with Mr R Litster, for appellant
Mr P Lyons QC, with Mr M Rackemann for respondent

SOLICITORS:

Hopgood & Ganim for appellant
Brisbane City Legal Practice for respondent

  1. This is an appeal by Urban Properties against a decision notice issued by the Council on 1 April, 2003 in relation to a development application in respect of land at 443 Queen Street, Brisbane (“the site”).

  1. The site is generally rectangular in shape and contains 2,183m2.  It has a road frontage to Queen Street of approximately 65 metres and a riparian boundary to the Brisbane River of approximately 61.43 metres.  It has little topographical variation and contains no vegetation of note.

  1. The site also contains part of the porphyry stone ‘Petrie Bright Retaining Wall’ on the Queen Street frontage.  The wall is listed as a Heritage Place under both the Brisbane City Plan 2000 and the Queensland Heritage Act 1992.  However this feature does not figure relevantly in this appeal.

  1. The site currently contains a low rise commercial building of five levels of offices and two levels of basement car parking (the Colonial building).  Vehicular access to the site is gained from Queen Street on the southern boundary of the site.  The building is faced with polished granite of a dark red/brown colour.  Both the Queen Street and river elevations of the building are slightly convex.

  1. To the north the site abuts the privately-owned public open space area that forms part of the adjoining Admiralty Wharf Residential Towers.  The Customs House abuts the site to the south.  There is a lease area within the Brisbane River to the east of the site which is used for public access purposes, including a boardwalk.

Customs House

  1. The Customs House directly adjoins the site to the south.  Construction of the Customs House commenced in 1886 with the building opening in 1889.  It is listed as a ‘Heritage Place’ under the Brisbane City Plan 2000 and is a ‘Registered Place’ under the Queensland Heritage Act 1992. 

  1. The building is oriented towards the Brisbane River and is generally two storeys in height.  Its principle features are its green dome at the northern end, the semi-circular bay formed by that northern end, two Grecian pediments on each of the eastern and western facades.  Adjacent to the northern facade of the building is a large weeping fig tree which is subject to a Vegetation Protection Order by Brisbane City Council.

  1. The Brisbane City Council Heritage Register citation includes six (6) statements of significance in relation to the Customs House:-

·“As a well-proportioned example of a late Victorian Customs House designed in Renaissance style;

·As evidence of Customs activities in Queensland’s history;

·For its ability to demonstrate the optimism and prosperity of Queensland society in the 1880’s;

·For its prolonged association with a site which, since 1849, has been the focus of Customs activities in Brisbane;

·As a highly visible element of the street and river scapes with its distinctive dome, projecting semi-circular bay and double pediment facades;

·For its ability to demonstrate the previous prominence of the river in the commercial life of Brisbane.”

The Locality

  1. The Admiralty Wharf residential towers and associated commercial/retail services adjoin the open space to the north of the site.  To the south of the Customs House in Queen Street and Eagle Street, are a number of high rise commercial office and residential towers including the recently completed 175 Eagle Street (adjoining the Customs House), and beyond that 167 Eagle Street (Telstra House), 145 Eagle Street, the 53 storey Riparian Plaza building (currently under construction), the Riverside Centre, and Waterfront Place.  On the western side of Queen Street, development includes the 67 storey Aurora CBD residential tower which is currently under construction at 440 Queen Street (opposite the Customs House) and a variety of medium rise older commercial office buildings.  Development in the surrounding locality generally consists of residential and commercial office towers of varying heights.

The Proposal

  1. The proposed development comprises the refurbishment of the Colonial building and the provision of four additional floor levels to accommodate a total of thirty-five residential units and ancillary recreational and business facilities.  When completed it would sit almost exactly on the footprint of the Colonial building.  On the Queen Street frontage the convex facade is to be replaced by two flat “blade” facades, each sloping away slightly from the apex at the mid point of the frontage.  Thus, instead of an arc facade there would be a very flat V shaped facade.

  1. The provision of balconies means that the extremities of the new building would protrude more than the Colonial building does.  The extent of protrusion towards the Customs House would be so slight as to be within the de minimis concept.  In any event the submission made on behalf of the Council placed no reliance on it.

  1. The architect who drew the plans of the proposed building, Mr Plazibat gave evidence of the intended effect of his design.  It is, of course, a very modest height for a building in the Brisbane centre.  It is to have nine habitable floors above two basement car parking floors.  In the area generally are buildings many times that height.  Were it not for heritage considerations the site could accommodate a building of up to 65 storeys.  I have no doubt that Mr Plazibat and his client have always realised that such a building would not receive favourable consideration by a responsible planning authority and therefore attention was turned to designing a building of sufficient size as to be a commercial proposition yet have reasonable prospects (or better) of satisfying the heritage aspects of the development.

  1. Mr Plazibat’s statement and oral evidence demonstrated the lengths to which he has gone to design a building which will appear to be light in form, texture and colour.  It is not intended to mimic, and does not mimic, the Customs House.  It seems to me that he has achieved his aim.

City Plan

  1. In chapter 2 of the City Plan, s 4.7 emphasises the importance of places of cultural heritage significance.  A Heritage Register is set up (s 4.7.2.1) and as I have noted the Customs House is entered on it.  In s 4.7.2.2 it is provided that:-

“On land adjoining a heritage place any development will be assessable if it is likely to affect significant aspects of the fabric or visual setting of the heritage place.  Considerations include:

·relationships to other buildings

·views to and from the heritage place.”

  1. The Heritage Code is contained in chapter 5 of the City Plan.  At p 90, s 3.1 sets out this purpose, under the heading “Cultural heritage significance”:-

“The purpose of this section of the Code for development on or adjoining a place of cultural heritage significance is to:

·Ensure that development does not detract from the cultural heritage significance of the heritage place.”

  1. Section 3.2.2 of chapter 5 relates to development on land adjoining a heritage place and performance criteria P 1 applies specifically to operational work or changes to buildings:-

“P 1.  Views of the heritage place identified as significant in the Heritage Register citation must not be impaired by any aspect of the proposal, including landscape and building elements.”

  1. One of the grounds of refusal of the application by the Council relied on performance criterion P 6 of s 5.5 of the City Design Centre Code contained in chapter 4 of the City Plan, and on performance criterion P 26 of s 4 of the Centre Design Code in chapter 5.  Each of these relates to the preservation of vistas.

  1. The drafter of the City Plan by the frequent reference to “views” and “vistas”, demonstrates that a distinction between the two words is drawn.  A view is, of course, a well known concept.  As the Shorter Oxford English Diary puts it, it is (relevantly) “the sight or vision of something”.  A vista conveys a different shade of meaning.  As the SOED puts it, it is “A view or prospect, especially one seen through an avenue of trees or other long and narrow opening.”

  1. In a built environment, especially one with tall buildings, vistas are often created and the drafter has sought to protect them. But in this appeal no one identified any vista, as opposed to a view, of the Customs House which has any relevance at all. Mr Lyons QC, for the Council made no submissions based on any vista, or either of the performance criteria identified in para [17]. The appeal revolves around the provisions set out in paras [14]-[16].

The Issues

  1. I accept the submission of Mr Gibson QC for Urban Properties that s 4.7.2.2 of the Strategic Plan (para [14]) adds little if anything to the debate.  It merely provides the tests to see if a proposal is assessable.  In any event its reference to “relationship to other buildings” adds nothing to the provisions of s 3.1 (para [15]) and its reference to “views …. to the heritage place” (views from that place having no relevance to this appeal) adds nothing to the provisions of s 3.2.2 (para [16]).

  1. Indeed I cannot see that s 3.1 has any real part to play in this appeal. The cultural heritage significance of the Customs House is common ground between the parties.  Its historical, educative, and architectural values are beyond any dispute.  It must rank as one of the city’s most important and most attractive cultural buildings.

  1. However (with a qualification) those attributes were really only relevant in this appeal to the need to apply very carefully s 3.2.2, that is, to ensure that “views of” (the Customs House) “must not be impaired by any aspect of the proposal”.

  1. The qualification I refer to is this.  Irrespective of questions of views s 3.1 would probably be of relevance if the proposed development, of its own nature, would have the effect of detracting from the cultural heritage significance of the Customs House.  Such a proposed building might be less tall, less bulky, more distant from the Customs House than the Colonial building (that is, actually improving the physical views of it) yet still offend s 3.1 because of such things as vulgarity of design or the inappropriateness of its use, even though lawful.  In such a case the proposal could seriously demean the cultural heritage significance of the Customs House.  While Mr Riddel, the architect called by the Council, made a reference to the inappropriateness of the residential use of the proposed building, the suggestion was not developed by him or by counsel.  Given the extensive residential uses of nearby buildings I think it might have been a difficult argument to develop.

  1. So it is the question of views of the Customs House to which I turn.

  1. For the Council the submissions were not that the views to be had of the Customs House were physically impaired in the sense of being obscured in some way by the proposed development.  If that were the case then s 3.2.2 (para [16]) would surely be contravened.  What was argued, rather, was that the word “impair” means:-

(“to make worse; diminish in value, excellence etc.”  (Macquarie Dictionary, 3rd ed)

and

(“damage or weaken” (Australian Concise Oxford Dictionary, 3rd ed).

to which can be added

(“to make worse, less valuable or weaker; to lessen injuriously; to damage, injure” (SOED)

and this, it was said, introduces a qualitative rather than a quantitative element to the consideration) it having been accepted that no quantitative element is here relevant).

  1. I think that is correct.  For reasons similar to, if not the same as, those discussed in para [23] the approach must be wider than one of the application of simple optics or geometry.  Impairment can be created by such things as, relevantly here, whether the shape, bulk or colour of the proposed development would impair the view of the Customs House because it would distract the attention of the viewer from the Customs House to the proposed building.

  1. This aspect of the appeal led the parties to create images of various kinds.  A physical model of the relevant buildings, in scale, was tendered.  Photos of various aspects of the buildings as they now exist and computer produced photo montages of some of the same photos as they would be with the proposed building in situ were tendered.  A computer generated progressive trip up and down Queen Street and the river designed to demonstrate the bulk of relevant buildings was tendered.  A video tape of similar trips was tendered.

  1. As we all know photographs can be deceptive and as I have learnt from similar cases computer produced photo montages can be inaccurate and also deceptive.  In this case, however, I accept Mr Elliott’s evidence that the fact that proposed building is to be built almost exactly on the existing footprint of the Colonial building allowed extraordinary accuracy in the production of the photo montages.  I consider that his work (ex 6) gave me very considerable assistance.  I gained almost no assistance from the “bulk” model, ex 11.  It reduced the depiction of the relevant buildings to little more than featureless slabs and I simply was unable to form any impression of their relative attractions to the eye which, on a qualitative analysis, is the important test.

  1. What the photographs and photo montages demonstrated and what was equally demonstrated by the lengthy inspection counsel and I had of all aspects of the buildings, is the visual intrusion of the Colonial building when one looks at the Customs House from all angles.  I consider that is caused by a combination of its colour and its design.  It is a striking dark reddish/brown.  The Customs House is a light yellowish/white.  The tall 175 Eagle Street on the other side is predominantly whitish.

  1. Furthermore, the Colonial building displays a very solid facade, from any direction.  It looks bulky; there is nothing light or self-effacing about it.  It is a bulky, brown, obvious building and as it stands beside and immediately to the north of the Customs House tends to take the eye away from the Customs House.  That is not much ameliorated by the fact that the green dome of the Customs House stands higher than the roof of the Colonial building.

  1. It has often been emphasised that this court is not a planning authority.  However on questions of fact which are able to be assessed as a jury would, this court is, like a jury, able to form its own views on questions of fact.  A question such as the relative visual intrusion of one building, compared with another, is such a question of fact.

  1. In arriving at that finding I had the assistance of evidence from some highly qualified expert witnesses, Mr Reynolds (a planner), Mr O’Brien (an architect), Mr Mainwaring and Mr Riddel (architects with special expertise in matters relating to heritage buildings).

  1. There was a deal of evidence about the fact that the Customs House once formed the northern end of the centre of Brisbane and as such formed, as Mr Riddel put it, “a bookend”.  While that is no doubt true, that state of affairs has long since ended.  Tendered historical photographs show that at least by the 1930’s a substantial building stood at the northern end of the Customs House (that is on the site) and of course the Colonial building has stood there for some fifteen years past.  For all of that time a viewer (other than from the building on the site) has been denied a square-on view of the northern end of the Customs House.  Views from the north were restricted to oblique views from the north east and the north west.

  1. It may be (and I took the experts to substantially agree on this) that those oblique views are the most important.  If that is so, then the square-on views of the eastern and western facades only slightly less important and even the oblique views from the south east and south west are important.

  1. Mr Riddel’s evidence was that the proposed building would indeed impair in a qualitative sense, views of the Customs House.  His expertise, skill and intended impartiality are beyond any question but I think there is much in Mr Gibson’s submission that his genuine passion for the Customs House has made him hypercritical of the effect of the proposed building.

  1. I am attracted by the statement in Mr Mainwaring’s report that “the Customs House is a powerful, elegant, robust building that needs other buildings to bring out its visual best.  Experiences gained from travel tell us that there are some buildings which demand isolation from other buildings in order to give of their best.  Examples which spring to mind are the Sydney Opera House, le Sacré Coeur in Paris and of course the Taj Mahal at Agra.  But generally speaking, in a modern living city, buildings of different eras can co-exist comfortably and can even complement each other.  As Mr Mainwaring put it in oral evidence, when referring to the high rise building at 175 Wharf Street, immediately to the south of the Customs House:-

“…. the almost bland geometrics of the high rise next to it and I think there is so much contrast that it introduces an element of dynamics and I get quite excited about it because you get the sort of dynamic tension between histories and this is what makes modern cities vibrant places to be.”

  1. On the specific question of qualitative impairment of the view, Mr Mainwaring said:-

“the proposed building tends to incorporate the bland geometrics I was talking about of the 175 building and automatically in my eye Customs House starts jumping forward as a sort of dominant focus and the materials the architects intend on using there seem to be far more translucent and light than the materials of Colonial house which is dull red and heavy and dark.
……
To me the Colonial house with those buildings in the background directly above the Colonial house really sort of set up quite a deal of clutter on that northern side of Customs House, whereas when you put the proposal there it seems to simplify the background clutters and the vertical geometry of the elevation of both 175 and the proposal tends to start framing the Customs House.”

  1. In cross examination he emphasised that the proposal (which he considered to be a superior building, more attractive than the existing Colonial building) with 175 Eagle Street, focuses the eye on the Customs House, making it a focal point.  Elsewhere he said that the colour of the proposed building as opposed to the contrasting colour of the existing Colonial building tended to define the Customs House.

  1. Mr Mainwaring’s evidence confirms the layman’s impression which I gained from my inspection and the many occasions in which the various exhibits were viewed and discussed.  At present the Colonial building acts as a visual distraction because of its bulk and colour.  The proposed building will not create that distraction.  It will complement and highlight the Customs House.  Not only will it not impair views of the Customs House, it will improve then.

Conclusion

  1. In due course the appeal will be allowed and Urban Properties’ application approved.  In the meantime the appeal is allowed to permit the parties to attempt to agree any conditions of the approval.

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