West v Brisbane City Council[2015] QPEC 1

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for a review of the decision of the ADR Registrar made on 28 August 2014 allowing the appeal against the decision of the Council to refuse a development application to demolish a pre-1946 house in a Demolition Control Precinct (“the decision of the ADR Registrar”).

The nature of the application

2. [2]
   The application for review is brought pursuant to s 491B(5) of the Sustainable Planning Act 2009 (“SPA”) which simply provides that “A decision, direction, or act of the ADR Registrar made, given or done under this part, may be received by the court”.

3. [3]
   While no specific legislative guidance as to what is contemplated by such a proceeding is to be found in SPA or elsewhere, decisions of the New South Wales Court of Appeal are instructive.  In Sapina v Coles Myer Limited^[1] the concept of a review was explored.  In delivering the judgment of the court Allsop P and Hoeben J quoted Meagher JA^[2] in Australian Gas Light Co v Samuels^[3] that a review “means that the Judge had wider powers than would be involved in a mere appeal, but not so wide as to treat the primary decision as if it did not exist”.  When considering a provision of the Work Place Injury Management and Workers Compensation act 1998 (NSW) (“the WIM Act”) their Honours concluded that the “notion of review of a decision”, in the context of the former legislation and the WIM Act was “wider than an appeal strictly so called and encompassing a reconsideration beyond correction of error”.^[4]

4. [4]
   The jurisdiction of the court pursuant to s 491B(5) is broad and the decision of the ADR Registrar may be reviewed in a largely unfettered manner, subject to the judge respecting any advantage the ADR Registrar has had in seeing and hearing witnesses in reaching his decision.^[5] 

5. [5]
   On 29 October 2014 I made an order in terms proposed by the parties that the application for review be conducted on the record below with a site inspection to enable me to better understand the evidence which had been presented.

The site and the surrounding area

6. [6]
   The house the subject of the appeal (“the house”) is situated at 60 Gordon Street, Hendra. It is a pre-1946 house with a tiled roof located in a Low Density Residential Area and a Demolition Control Precinct pursuant to Brisbane City Plan 2000 (“City Plan”).^[6]

7. [7]
   Gordon Street has a north-south orientation beginning at Mansour Road to the north and terminating at the Eagle Farm Racecourse to the south. About half way along Kartoum Street intersects from the east. Very near its southern end Mein Street also intersects from the east. At this point Gordon Street narrows considerably and deviates slightly to the west. Most of the houses on the western side back on to the railway line which runs parallel to Gordon Street. The house is the last house on the eastern side of Gordon Street and adjoins the racecourse. South of the intersection with Mien Street there is only one other house on the eastern side. It adjoins the house to the north. It is a pre-1946 house which faces Mien Street. There are seven pre-1946 houses on the western side south of Mien Street and there is also a new house being constructed in a similar style.^[7]  The part of Gordon Street south of Mien Street contains pre-1946 houses on every lot except for the house under construction which is being constructed on a newly created lot.^[8]  Most of the houses in the balance of Gordon Street are pre-1946 houses and virtually the entire residential neighbourhood is in a Low Density Residential Area^[9] and within a Development Control Precinct.^[10]

The relevant legislative framework

8. [8]
   The development application giving rise to the appeal required notifiable code assessment and was assessed pursuant to the Demolition Code of City Plan. In applying the Demolition Code reference should be made to Ch5, s 1.1 which addresses how to use the codes in City Plan.^[11]  Relevantly it states that the Purpose explains what the particular code seeks to achieve before addressing Performance Criteria and Acceptable Solutions, in inter alia, the following terms:^[12]

“For code assessment a proposal that complies with all Acceptable Solutions will be approved.

…

The Performance Criteria are in the left hand column of the Code table.  They provide a statement of the outcome that the Acceptable Solution must achieve. A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met.

…

For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria.  There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose.”

9. [9]
   In the Demolition Code it is stated that “the Code is to be read as being the Purpose, Performance Criteria and Acceptable Solutions.”^[13]

10. [10]
    The Purpose of the Demolition Code is relevantly to:

11. [11]
    Thereafter there is an explanation of traditional building character which it is unnecessary to refer to as it is common ground that the house “expresses traditional building character as described by s 4 of the Demolition Code.”^[15]

12. [12]
    Only one of the Performance Criteria and one corresponding Acceptable Solution relating to the demolition of a residential building fell for determination by the ADR Registrar and only to the extent quoted below:

“P1 The building:

 …

• must not contribute positively to the visual character of the street.”

 “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.”…

The evidence

13. [13]
    The parties each called a heritage architect. The appellant called Mr McDonald and the Council called Mr Scott. They prepared a joint report dated 25 February 2014.^[16]  There was considerable agreement between the architects about a number of issues including that the house “is recognisably a pre-1946 house which expresses traditional building character” as noted above.^[17]  The essence of their divergence of views concerned the impact of the change of alignment of Gordon Street south of Mien Street and the impact of the racecourse which adjoins the house.  Whereas Mr  McDonald expressed the view that the house is visually isolated from the rest of the Development Control Precinct and its removal would “not be noticeable from the vast majority of the DCP” and would have “a negligible and inconsequential impact on the overall traditional building character in the DCP,” Mr Scott emphasised the “remarkably strong traditional character” of Gordon Street in the vicinity of the house noting all nine houses around the subject house are “Queensland style character houses and contribute positively to the streetscape,” stating that removal of the house “would result in the loss of traditional building character within the DCP.”^[18] Mr McDonald described the house as being located in “an isolated sub-precinct…visually insignificant to the overall character of the DCP.”^[19]

14. [14]
    The views of the architects were explored further in the course of oral evidence before the ADR Registrar. Mr McDonald stressed the visual relationship between the house and the adjoining racecourse.^[20]  In cross-examination he conceded that Gordon Street is unusually representative of traditional building character and that at the southern end of Gordon Street all the houses exhibited it.^[21]  He further conceded that the narrowing and slight deviation of the street did not affect the continuity of traditional building character^[22] but asserted that the house “is concealed from view from the majority of Gordon Street,”^[23] as a consequence of its position and the narrowing and deviation of the street.^[24]

15. [15]
    Mr Scott was cross-examined extensively about the interrelationship between the “traditional character houses” and the racecourse at the southern end of the street. He conceded that the racecourse “is a component of the streetscape” but he qualified this, stating “it seems of limited importance to me in the assessment of the traditional character of Gordon Street”. This is because in his view the racecourse is “not a residential use.”^[25] Unsurprisingly Mr Scott conceded that the demolition of the house at the southern end of the street would not have much of an impact on the northern end of the street,^[26] however he stressed the importance of assessing the character of the whole street.^[27]

The decision of the ADR Registrar

16. [16]
    The ADR Registrar correctly noted that the dispute between the parties was limited to the application of the Demolition Code focusing on Performance Criterion P1 and Acceptable Solution A1.3.^[28] In finding that the relevant parts of both P1 and A 1.3 were satisfied and allowing the appeal he preferred the evidence of Mr McDonald to that of Mr Scott.

17. [17]
    The ADR Registrar found with respect to Performance Criterion P1:

“Given Mr Scott agreed with Mr McDonald that the subject house cannot be seen from the rest of Gordon Street north of Mein Street and his concession its demolition would have “not much impact” on the northern end of Gordon Street it seems to me that the subject house could not be said to contribute positively to the visual character of the street in any material or relevant way.  In this regard, I prefer and accept the evidence of Mr McDonald that the subject house does not contribute positively to the visual character of the street.  Accordingly I find that P1 has been satisfied.”

18. [18]
    The ADR Registrar then proceeded to consider the relevant part of Acceptable Solution A1.3 in the event he had incorrectly decided that Performance Criterion had been satisfied. Relevantly he found:

“There is no dispute that the house is not able to be seen from the vast majority of the DCP and it is really a question of degree as to the impact the loss of one traditional building character house in a visually isolated pocket will have on the DCP which it has been agreed is the whole of Gordon Street from Manson Road to the gates of the racecourse.

In determining whether there is a loss of character for the purposes of A1.3, the loss must be ‘significant, concerning or unacceptable rather than no loss at all’. These words were cited with approval by Judge Jones in Wallace v Brisbane City Council when he said the loss must be ‘meaningful and significant’.

Is the loss of this one house which is unable to be seen from the vast majority of Gordon Street [and in fact is only capable of being seen from no more than about 8 houses in Gordon Street or 9 houses if 156 Mein Street is counted] a loss which is not ‘significant, concerning or unacceptable’? or in the words of Jones DCJ ‘meaningful or significant’?

There are 42 houses in Gordon Street.  31 are character houses 19 of which are in the northern end with a further 5 at numbers 38, 39, 49, 51 and 53.  This leaves only 8 houses in Gordon Street from and including number 55 Gordon Street [which is just north of Mein Street] from which the subject house is visible.

Considered objectively it is apparent the ‘subject building is visually isolated from the bulk of the Gordon Street streetscape’.  When I take into account the evidence of Mr Scott there will not be ‘not much impact’ on the 19 houses in the northern end of Gordon Street and the evidence of Mr McDonald the loss of the subject house would be ‘negligible and inconsequential’ I find the loss would not be ‘significant, concerning or unacceptable rather than no loss at all’ or in the words of Jones DCJ the loss will not be ‘meaningful, or significant’.”^[29]

Conclusion

19. [19]
    The finding of the ADR Registrar that Performance Criterion P1 was satisfied was not open on the evidence before him when the Demolition Code is read as a whole and given full effect. As noted above the Code is to be read having regard to the Purpose as well as the Performance Criteria and Acceptable Solutions. Essentially it is intended that structurally sound residential buildings constructed before the end of 1946 are retained in Development Control Precincts and Low Density Residential Areas. The fact that the house is located at the extreme southern end of Gordon Street is not of any particular significance. Neither is the fact that it cannot be seen from the entire length of the street. It is a pre-1946 house exhibiting traditional building character as contemplated by the Demolition Code. It is situated in a cluster of other pre-1946 houses which also exhibit traditional building character in a street which even Mr McDonald concedes is unusually representative of traditional building character of which there is continuity throughout its length. It cannot be said in such circumstances that the house does not contribute positively to the visual character of the street. On the facts before me I find that Performance Criterion P1 is not satisfied.

20. [20]
    The same facts lead to the conclusion that the demolition of the house will result in the loss of traditional building character within the Demolition Control Precinct. Applying the approach cited by Jones DCJ in Wallace v BCC^[30], the loss of the house in the context of the traditional building character in the vicinity of it and Gordon Street in general is at least meaningful.  It is the Development Control Precinct and therefore Gordon Street which is the focus of the exercise mandated by Acceptable Solution A1 and not the adjoining racecourse.  On the facts before me I find that Acceptable Solution A1 is not satisfied.

Orders

21. [21]
    The decision of the ADR Registrar is set aside. The appeal is dismissed.