Wallace v Brisbane City Council

[2012] QPEC 47

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wallace v Brisbane City Council [2012] QPEC 47

PARTIES:

Susan Wallace (Power of Attorney for Louise Edgar)

(Appellant)

and

Brisbane City Council
(Respondent)

FILE NO/S:

4544/2011

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

13 July 2012

DELIVERED AT:

Brisbane

HEARING DATES:

18 and 19 June 2012

JUDGE:

R. S. Jones DCJ

ORDER:

The appeal is allowed

CATCHWORDS:

APPEAL – Application for preliminary approval for building work refused by respondent – development involved demolition of a pre-1946 house situated within a Demolition Control Precinct under the respondent’s City Plan 2000 – whether building represented traditional character – whether building contributed positively to the visual character of the street – whether the demolition of the building would result in a loss of traditional building character within the Demolition Control Precinct – whether the street had no traditional building character – whether demolition of the building would be in conflict with the respondent’s Demolition Code.

Sustainable Planning Act 2009 (Qld), ss 461, 493(1), 496

Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117, considered
Hearne v Brisbane City Council [2010] QPEC 16, cited

Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2007] QPEC 093; [2008] QPELR 147, cited
Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 234, considered
Lonie v Brisbane City Council & Ors [1998] QPELR 209, considered
Lynch v Brisbane City Council [2010] QPEC 137; [2011] QPELR 314, cited
Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30, cited
T Matthews & Dodd Architectural Group v Brisbane City Council [1997] QPELR 388, considered
Unterweger v Brisbane City Council [2011] QPEC 134, considered
Westfield Management Pty Ltd v Pine Rivers Shire Council [2004] QPELR 337, cited

COUNSEL:

Mr S Ure for the appellant.
Mr M Williamson with Mr M Batty, for the respondent.

SOLICITORS:

King & Co for the appellant.
Brisbane City Legal Practice for the respondent.

1. This proceeding is concerned with an appeal pursuant to s. 461 of the Sustainable Planning Act 2009 (‘SPA’) against the refusal by the respondent of a development application for preliminary approval for building works involving the demolition of a pre-1946 dwelling. For the reasons set out below, the appeal is allowed.

Background

1. On 11 October 2011, the respondent refused the appellant’s development application for approval to, inter alia, demolish a house located on land situated at 46 Quay Street, Bulimba.  It was uncontroversial that it was located within a Demolition Control Precinct as defined in the respondent’s planning scheme.  It was also uncontroversial that the dwelling was constructed prior to the end of 1946, was structurally sound and had not been substantially altered.  However, there was debate about whether the extent of the alterations detracted from its presentation as a pre-1946 dwelling.

1. The reason for the refusal was that demolition would conflict with the Development Code under the respondent’s City Plan 2000. The Demolition Code has to be construed broadly and in a common sense way which best achieves its purpose and objects.[1] Whether or not a conflict exists is to be determined by a consideration of the relevant provisions of the scheme in the light of all the relevant facts.[2]

   [1]            Westfield Management Pty Ltd v Pine Rivers Shire Council [2004] QPELR 337 and cases cited therein.

   [2]            Sunland Group Ltd v Townsville City Council & Anor [2012] QCA 30 at [24].

1. The dwelling is situated on the western side of Quay Street.  Broadly speaking, Quay Street runs in a north-south direction.  Over time, the character of the street has changed with the introduction of recent development (involving the demolition of original houses), renovations, alterations and restoration of original dwellings.  Perhaps not surprisingly, the majority of the new and, in many cases, more extravagant dwellings are constructed on the western side of Quay Street fronting the Brisbane River. 

1. The subject dwelling is located in the Low Density Residential Area of City Plan 2000 which relevantly provides:

“… Groups of buildings in the Low Density Residential Area are included in Demolition Control Precincts.  In these locations pre-1946 housing will be retained and new development will reflect pre-1946 architectural character…
In Demolition Control Precincts pre-1946 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.”[3]

[3]            Exhibit 5, p6, s.5.2.1 and 5.2.2, DEO 3.

1. The Demolition Code is concerned with assessing building work, including that involving the demolition or removal of a building within a Demolition Control Precinct.  Section 5 of the code contains a number of Performance Criteria and Acceptable Solutions.  It was agreed between the architects called by the parties that the only relevant Performance Criterion for the purposes of this appeal was P1.  Under the heading Performance Criteria and Acceptable Solutions in s. 5 of the Demolition Code, it is relevantly provided:

PERFORMANCE CRITERIA

ACCEPTABLE SOLUTIONS

Where a residential building:
P1 The building:

·     Must not represent ‘traditional building character’, or

·     …

·     Must not contribute positively to the visual character of the street

Note: ‘Traditional Building Character’ is described in section 4 of this code.

Where a residential building:
A1.1…
or
A1.2…
or
A1.3 The demolition of a building will not result in the loss of:

·          Traditional building character within the Demolition Control Precinct where in a Low Density Residential Area or Character Residential Area, or

·          …

or

A1.4 The street has no traditional building character.

1. The appellant contends that the subject dwelling does not represent traditional building character, does not contribute positively to the visual character of the street and its demolition would not result in any loss of traditional building character in the street.  The appellant also contends that, in any event, Quay Street has no traditional building character.

1. The purpose of the Demolition Code is set out in s. 3 which relevantly provides:

“Protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity.
…
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 the end of 1946.
…
In conjunction with the Residential Design— Character Code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in those precincts compliments the houses constructed in or prior to the end of 1946.”

1. Section 4 of the Demolition Code is intended to provide application assessment guidance:

“Assessment guidance – an explanation of traditional building character
Street Context
The traditional scale of a street was first established by its subdivision pattern of 16, 24 or 32 perch lots with 10, 15 or 20m frontages respectively.  This pattern was reinforced by the traditional building form of a single level house elevated on stumps.  This created a reasonably uniform scale, accentuated by consistent stepping of the levels of adjoining buildings in Brisbane’s hilly suburbs, and by uniform spacing between houses in the flatter suburbs.
Building Form and Scale
The predominant traditional form of pre-1946 housing is a solid core with attached or integrated verandas raised above the ground on timber supports.  Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floor and effect the layout of upper floor verandas.  Roof forms are medium pitched pyramids, hips or gables.  This style is often referred to generically as the Queensland vernacular.
….
Materials and Details
The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandas, lattice screens and batten panels that cast shadows and provide three-dimensional effects.  Character is also derived from the relatively limited range of materials available at the time of construction.  This provided a unifying theme of painted timber walls and corrugated steel roofing. 
….
Setting
The traditional setting of houses in the older suburbs is a fairly uniform building line, within individual front gardens punctuated by a pedestrian path and single width driveway.
The setting of the building on the site is also important, particularly in terms of the setbacks provided to existing or proposed side boundaries.  Setbacks complying with related codes of the City Plan contribute to the character of older suburbs.”

1. It is not in dispute that the Performance Criteria (‘PC’) and Acceptable Solutions (‘AS’) set out in s. 5 of the Code contain alternative and not cumulative requirements.  That is, it is sufficient for the appeal to be allowed if the appellant satisfies either of the two limbs of PC1 or meets either one of the acceptable solutions identified above.[4] However, pursuant to s. 493(1) of the SPA, the appellant bears the onus of proving that the appeal should be allowed.

   [4]            Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2008] QPELR 147 at [12];

Does the Dwelling Represent Traditional Building Character?

1. I am unable to accept that the first limb of PC1 has been satisfied.  To put it another way, I have concluded that the dwelling does represent “traditional building character”.

1. The location of the dwelling on the subject land is unusual if not unique when compared to the majority of the pre-1946 dwellings located in Quay Street, in particular, on its eastern side.  Contrary to the more common situation, it fronts the Brisbane River and, accordingly, the rear of the dwelling faces Quay Street.  Furthermore, it is set back from the street a distance some four to five times that of the majority of the dwellings on the eastern side of the street.

1. Also, the physical appearance of the dwelling has been altered.  In particular, it is supported by concrete as opposed to timber stumps, its rear veranda has been enclosed and the underneath of the dwelling is enclosed to a material extent by solid modern fibro or other sheeting. Only approximately 40 to 50 percent of the underneath of the house has the more traditional timber battens.  Further, there is no discernible individual front garden punctuated by a pedestrian path and a single width driveway and no apparent sunhoods or lattice screens.[5]

   [5]            The full extent of the principal differences are set out in Exhibit 3, p 17.

1. However, it was agreed by the experts for the parties that Acceptable Solution A1.1 is not applicable in this appeal.  That acceptable solution provides:

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

1. Mr McDonald, the architect relied on by the appellant, expressed the opinion that Quay Street contained only 16 “recognisably pre-1946 buildings out of 70 properties in the street…”.[6]  Consistent with that opinion, he agreed with Mr Scott, the architect relied on by the respondent, that the subject dwelling was in fact a pre-1946 residential building.[7]  Notwithstanding those concessions, Mr McDonald contended that the dwelling did not represent traditional building character, not only because of its physical characteristics referred to above in paragraphs 12 and 13, but also because it was located in a street where the traditional scale of the street established by the pre-1946 subdivision pattern no longer existed, having been replaced by a different modern pattern of narrower lots and a greater diversity and density of buildings.  According to Mr McDonald, there was no longer any distinguishable pattern of pre-1946 buildings of reasonably uniform scale or spacing.[8] 

   [6]            Exhibit 2, para 25.1(a).

   [7]            Exhibit 2 at para 2.

   [8]            Exhibit 2, para 26.1(d).

1. Notwithstanding the wide range of matters identified in s. 4 of the Demolition Code, the primary focus of PC1 is the building itself.  When looked at objectively, despite the negative elements associated with it, the dwelling fundamentally retains the “predominant traditional building form of pre-1946 housing”.[9]  It is constructed as a solid core with attached or integrated verandas (albeit enclosed at the rear) and is raised above the ground on stumps/supports.  That the stumps are now concrete and not timber does not materially detract from this. 

   [9]            Demolition Code, s.4.

1. The Demolition Code and its predecessor has been considered by this Court on a number of occasions.  In Unterweger v Brisbane City Council,[10]Rackemann DCJ helpfully listed a number of principles which have emerged from those cases including:

   [10] [2011] QPEC 134 at [10].

“…

(b)It is not necessary that the street or the dwelling are ‘pristine’ in order for demolition to be refused;

(c)Alterations might not deprive a building of its traditional building character.  Whether they do is a question of fact and degree to be assessed in each case;

(d)The Demolition Code does not require a pre-1947 house to have architectural merit.

(e)It is not necessary that a house exhibit each of the features identified in the explanation of traditional building character in order for it to represent that character.

(f)There is no requirement that a pre-1947 building be ‘remarkable’, ‘unique’ or ‘even good’.

…

(h)While the explanation of the term ‘traditional building character’ in the Code and the various elements of that explanation may been seen as a useful guide, it is only an explanation.  It is not, and does not purport to be, a definition.  It speaks in generalities.  The Code does not suggest that ‘traditional building character’ denotes some kind of prototype from which only minor variations of style are permitted.

…

(j)Unsympathetic alterations which are of a kind which are easily reversible might not prevent an informed observer readily imaging the original presentation of the house, but such alterations remain relevant.

…

(l)It is relevant to enquire whether the street in question has been robbed of its traditional character by the extent of redevelopment.”

1. While the alterations to the dwelling clearly detract from its original pre-1946 condition and character, they do not rob it entirely of that character.  Looked at objectively, the dwelling is still able to be identified as having pre-1946 traditional building characteristics.  In this context, while not decisive, it is of some significance that the dwelling is structurally sound and/or capable of structural repair.[11] 

   [11]          Exhibit 2, para 9.

The Remaining Issues

1. Turning to the second limb of PC1 and the Acceptable Solutions applicable in this appeal, a significant difference of opinion between Mr McDonald and Mr Scott was whether Quay Street (or parts thereof) had any relevant visible traditional building character.  According to Mr McDonald, the visual character of the street is modern and the subject dwelling therefore is atypical of that character.  Mr Scott disagreed. 

1. Because of its proximity to the Brisbane River, the eastern and western sides of Quay Street have had different building characteristics since at least the 1950’s.  Along the eastern side, the dwellings tended to demonstrate a more consistent level of setback closer to the street and presented to the street.  On the western side, the dwellings tended to have a more mixed range of setbacks but tending to be deeper in the majority of cases, particularly north of Brisbane Street, and tended to present to the river and not to the street.[12]

   [12]          See Exhibit 3, p9; Exhibit 4, pp 16-17.

1. In 2012, again no doubt still because of the influence of the river, the eastern side and the western side of Quay Street display different characteristics.  If a visitor now turned right into Quay Street from Oxford Street and travelled north but looking only to the west, he would leave it thinking that it was dominated by large modern dwellings and that that trend was continuing.[13]  However, that same person driving along Quay Street in the same direction, but this time looking only to the east, would leave with an entirely different impression.  He would be inclined to think that Quay Street comprised of houses being more modest in nature and comprising of a mixture of dwellings including modern, pre-1946 dwellings and others some of which were sympathetic to that style of architecture and others not.[14]  Of course, the historical value of the subject dwelling has to be assessed in context having regard to its place amongst the architectural styles on both sides of the street. 

   [13]          See Exhibit 2, pp 5-6; Exhibit 4, pp 29-51; and Exhibit 6.

   [14]          Ibid.

1. As both Mr Scott and Mr McDonald identified, modern development is more dominant north of Brisbane Street.

1. In support of his opinion that the dominant character of Quay Street is now modern and without traditional building character, Mr McDonald pointed to the facts that 89% of the buildings on the western side of the street are post-1946 or vacant land with approval for new dwellings.  And, on the eastern side only 33% of the dwellings comprise of pre-1946 dwellings and one pre-1946 commercial building.[15]

   [15]          Exhibit 2, paras 25.1(a) (b) and (c).

1. In my opinion, the reasonable visitor would leave Quay Street with the distinct impression that it was comprised of a mixture of architectural styles.  More prestigious and modern but with the odd more modest dwelling and four pre-1946 dwellings on the western side and, on the eastern side, more modest dwellings overall comprising of a mixture of modern, pre-1946 dwellings and some dwellings sympathetic to that architectural style and others not.

1. In para 4.09 of his report,[16] Mr Scott stated:

“In considering A1.4 the obvious observation to make is that the street has some traditional character. In a more detailed consideration of A1.4 my reading of the street is similar to the consideration of A1.3 which focused on the DCP.  My opinion is that the subject house at 46 and its Character house neighbour at 42 Quay Street relate strongly to a group of pre-1946 character houses on the eastern side of the street from at least 31 to 57 Quay Street (as identified by the extent of the DCP in this section of the street).  This group of character houses, including the subject house, influences the character of the street to the extent that at least this section of the street has traditional character…”.  (emphasis added).

[16]          Exhibit 4, para 4.9.

1. To an extent, the evidence of Mr McDonald supported that view.  According to him, in analysing the streetscape it is helpful to prioritise the types of views one would have of the subject dwelling.[17]  Four types of views were nominated, three static and one dynamic, and, according to Mr McDonald, “an immediate view is considered as having the most visual impact and the most relevance to the streetscape relationship of a subject dwelling”.[18]

   [17]          Exhibit 3, para 4.7.

   [18]          Ibid, para 4.8.

1. The immediate and proximate views from the footpath would reveal two pre-1946 dwellings to the west, one of which was the subject.  These two dwellings are adjoined by modern structures to the north and a vacant lot to the south.  If the viewer then turned to the east, at least three pre-1946 dwellings (Nos. 31, 37 and 41) and some dwellings sympathetic to varying degrees to that period would be seen.

1. However, the impression the reasonable visitor to Quay Street gleaned of that street from the immediate and proximate views would soon be eroded to a material extent as he moved away to the north and south.  In this regard, I trend to agree with the observations of Mr McDonald concerning the distant and dynamic views of the subject.

1. Notwithstanding the mixed character of Quay Street over its full length, I have reached the conclusion that, between Oxford Street and Brisbane Street it still retains a sense of traditional building character.  This part of Quay Street has six pre-1946 dwellings fronting the street and a number of surrounding dwellings generally sympathetic with that style of architecture. However, on any reasonable assessment of this part of the street, it could only be said that the traditional building character that remains is essentially restricted to its eastern side.  In this regard, I have concluded that it is appropriate to consider the subject dwelling in the light or context of the existing architecture between Oxford Street and Brisbane Street. 

1. I should point out here that there was some dispute about the actual percentages of pre-1946 dwellings and dwellings sympathetic to that period of architecture.  However, the level of dispute about those numbers had no material bearing on the conclusions I have reached about the character of Quay Street.

1. In circumstances where the subject dwelling represents traditional building character and the southern part of Quay Street also has a sense of traditional building character the remaining issues are whether the subject contributes positively to the visual character of the street and whether its demolition would not result in the loss of traditional building character.  To constitute a loss of character for the purposes of AS1.3, the loss must be a meaningful or significant one.[19]

   [19]          Lynch v Brisbane City Council [2011] QPELR 314 at [13].

1. As to the first of the remaining matters, Mr McDonald’s opinion is that the subject dwelling makes no positive contribution to the character of the street.  However, his opinion is clearly based on the premise that the character of the whole of Quay Street is modern and the subject is atypical of that character.[20]  I do not accept that premise, at least insofar as the eastern side of Quay Street between Oxford Street and Brisbane Street is concerned. 

   [20]          Exhibit 1, para 27.1. 

1. The subject dwelling does make some positive contribution to the visual character of this part of Quay Street but only to the extent that its contribution is one that would not exist at all if the land were vacant or developed with a more modern dwelling.  However, I respectfully disagree with Mr Scott’s opinion that the contribution is a strong one.[21]  Its distinct and atypical physical features,[22] together with its limited visual connection with the relevant dwellings[23] on the eastern side of the street lead me to conclude that its contribution to visual character is marginal.

   [21]          Exhibit 2, para 27.2.

   [22]          Refer to paras 12 and 13 herein, and Exhibit 3, p 17.

   [23]          “Relevant dwellings” are 31 to 57 Quay Street and those sympathetic to that architectural character. 

1. Turning finally to AS1.3, the answer to this issue essentially comes down to the nature or strength of the relationship between the subject dwelling and the relevant dwellings on the eastern side Quay Street.  According to Mr Scott, it “relates strongly to a predominantly traditional character on the eastern side of this section of Quay Street” and is part of a group of pre-1946 character buildings.[24]

   [24]           E.g. Exhibit 2, para 27.2; Exhibits 4, paras 4.9 and 4.16. 

1. There is certainly a visual connection between the dwellings from the immediate and proximate views.  However, in no small part because of its set back, the visual connection between the subject and the other dwellings is soon lost.

1. On balance, having regard to its minor contribution to the visual character of this part of Quay Street, and, in particular, the significant physical differences between it and the other relevant dwellings, I have reached the conclusion that the subject dwelling does not relate in any meaningful way with the existing traditional building character of Quay Street.

1. Mr Scott contended that some of the physical differences associated with the subject dwelling made it all the more worth saving.[25]  In respect of this argument, I firstly disagree that the physical characteristics of the subject differ only slightly from the norm.  That the subject turns its back on the street, has no meaningful front garden and/or path and is deeply set back from the street are elements that distinguish it from most of the relevant dwellings on the eastern side of Quay Street in a significant way. In this regard, I respectfully prefer the evidence of Mr McDonald which was to the effect that the subject dwelling had so little in common with those on the eastern side of Quay Street that it could be described as being atypical of the traditional building character represented on that side of the Street.[26]

   [25]          Exhibit 4, paras 4.13 - 4.14.

   [26]          T1-19, LL 38-60.

1. For the reasons stated, I have reached the conclusion that the demolition of the subject dwelling would have no noticeable impact on, or cause any loss of significance from the existing traditional building character in Quay Street between Oxford Street and Brisbane Street.  To adopt Mr Scott’s words, its demolition would not cause a loss of traditional building character to the extent that at least this section of the street has traditional building character.[27]  Accordingly, AS1.3 is satisfied. 

   [27]          Exhibit 4, para 4.9.

The draft neighbourhood plan

1. The respondent is intending to introduce the Bulimba District Statutory Neighbourhood Plan (the ‘Draft Plan’).  The Draft Plan is currently undergoing its second state interest check and has been placed on display for public comment. According to Mr Williamson, counsel for the respondent, the demolition of the subject dwelling would undoubtedly be in conflict with the draft plan and, that is a factor that works against the appellants.  Without expressing a final view about it, I am prepared to proceed on the basis that Mr Williamson is correct for the purposes of disposing of this matter.   

1. That the plan is still in draft form means that s. 496(2)(a) of the SPA is not applicable. That of course does not necessarily mean that this Court can have no regard to it.[28] 

   [28]          Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117; Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224.

1. However, I do not consider the draft plan to be of any assistance to the respondent in this proceeding.  To allow this appeal would not result in the types of conflicts and adverse impacts on future town planning considered in cases such as Coty and Lewiac.  Further, as Judge Quirk noted in T Matthews & Anor v Brisbane City Council,[29] to stand in the way of demolition and redevelopment is a serious and far-reaching limitation upon a land-owner’s rights.  Accordingly, in my view, this court should adopt a cautious approach and, in circumstances where existing laws and policies are satisfied, it would be wrong to inflict such limitations based on proposed changes to the planning scheme, save for where such a result was clearly justified.  This is not such a case.

   [29] [1997] QPELR 388 at [390].

1. For the reasons given, I find that there is no conflict with the respondents Demolition Code and that the appeal ought be allowed.

Order

The appeal is allowed.  

            Hearne v Brisbane City Council [2010] QPEC 16 at [20].