Lucas v Brisbane City Council
[2015] QPEC 25
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- Unreported Judgment
- Lucas v Brisbane City Council[2015] QPEC 25
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Lucas v Brisbane City Council[2015] QPEC 25
Lucas v Brisbane City Council[2015] QPEC 25
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Lucas v Brisbane City Council [2015] QPEC 25 |
PARTIES: | DOREEN LUCAS (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | Appeal No. BD2963/2014 |
DIVISION: | Appellate |
PROCEEDING: | Appeal (Interlocutory Hearing) |
ORIGINATING COURT: | Planning and Environment Court |
DELIVERED ON: | 4 June 2015 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 14 and 15 May 2015 |
JUDGE: | Dorney QC DCJ |
ORDER:
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CATCHWORDS: | Planning and Environment – demolition in DCP – whether building does not contribute positively to the visual character of the street – whether demolition will not result in loss of traditional “tin and timber” character within DCP |
LEGISLATION CITED: | Sustainable Planning Act 2009, s 313, s 313(2)(c), s 313(3), s 326, s 461, s 493(1) |
CASES CITED: | Berlese v Brisbane City Council [2003] QPELR 330 Ken Ryan & Associates v Brisbane City Council [2008] QPELR 147 Leach & Ors v Brisbane City Council [2011] QPELR 609 Litbit Pty Ltd v Brisbane City Council [2009] QPELR 197 Lonie v Brisbane City Council [1998] QPELR 209 Lynch v Brisbane City Council [2011] QPELR 321 Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73 Stockland Development Pty Ltd v Townsville City Council & Ors (2013) 195 LGERA 317 Thurecht & Anor v Brisbane City Council [2015] QPEC 19 Unterweger v Brisbane City Council [2012] QPELR 335 Wallace v Brisbane City Council [2012] QPELR 689 |
COUNSEL: | S M Ure for the appellant B D Job for the respondent |
SOLICITORS: | Macdonnells Law for the appellant Brisbane City Legal Practice for the respondent |
Introduction
- [1]The issue in this proceeding (which was ordered to be determined separately from the appeal itself by order of this Court on 1 April 2015) concerns whether circumstances exist to grant a preliminary approval for the carrying out of building work for the demolition of a “pre-1946” character house within the Demolition Control Precinct (“DCP”). Although properly stated as “pre-1947” (because the period is defined as “in or prior to the end of 1946”), I will use the term as it is used, at times, in the relevant planning scheme and the experts’ reports. The house is situated at 117 Vernon Street, Nundah, Brisbane.
- [2]On the first day of the trial, after an opening by the appellant’s learned counsel as to this issue, I conducted a view of Vernon Street and its surrounding streets for the purpose of better understanding the evidence to be led during the hearing.
The “Site”
- [3]The land, on which the building (being a house) at 117 Vernon Street is an improvement:
- is described as Lots 75 and 76 on RP34487;
- has a combined area of the two allotments of approximately 810 m2;
- is included in the DCP pursuant to the Brisbane City Plan 2000 (“Planning Scheme”); and
- under the Planning Scheme, is within:
- the Residential Neighbourhoods element of the Strategic Plan;
- the Low-Medium Density Residential Area (“LMDR Area”); and
- the Nundah District Local Plan Area.
- [4]Vernon Street runs between Nudgee Road and Amelia Street.
- [5]The improvement on the site is not only a pre-1946 residential dwelling house but it also expresses “traditional ‘timber and tin’ building character”.
- [6]In the Joint Report of the Expert Heritage Architects (“JER”) (Exhibit 4), the experts agreed that the relevant extent of Vernon Street for consideration in the matter was as shown in an accompanying figure 2. This includes both sides of Vernon Street. In Vernon Street, between Nudgee Road and Amelia Street, there are 24 properties. They comprise:
- 7 pre-1946 traditional “timber and tin” houses in the DCP (including the subject building) at numbers 95, 101, 105, 109, 107 (the Site) and 121 in Vernon Street and number 49 in Amelia Street;
- 2 pre-1946 traditional “timber and tin” houses not in the DCP at numbers 122 and 128 in Vernon Street;
- 5 post-1946 houses at numbers 99, 116, 124, 125 and 127 in Vernon Street; and
- 10 modern, multi-unit developments at numbers 98, 102, 104, 106, 110, 114, 115, 118, 126 and 129 in Vernon Street.
- [7]The 10 last-mentioned developments just mentioned have been, accurately, described in the written submissions of the appellant as “unsympathetic”.
- [8]The Site is located on the southern side of Vernon Street and is approximately half way along its length. The southern side of Vernon Street, including 49 Amelia Street which indirectly faces Vernon Street, is comprised of 11 houses, 6 of which are pre-1946 buildings. Of the post-1946 houses to the west of both the Site and its easterly neighbour at 121 Vernon Street, only 115 Vernon Street (the immediate neighbour to the West) and 99 Vernon Street are post-1946 buildings.
- [9]The extent of the DCP - which the JER stated was “agreed” - that is relevant here is that contained in an area (in Vernon, York, Franklin and Amelia Streets) that comprises 52 properties. It was set out in figure 1 in Exhibit 4. The extended local nature of the DCP was further illustrated in Exhibits 7 and 8. Those properties encompass:
- 32 traditional “timber and tin” pre-1946 houses;
- 1 pre-1946 house which is not “timber and tin”;
- 1 pre-1946 house which no longer expresses any traditional building character; and
- 18 post-1946 houses and multi-unit developments.
- [10]In strictly percentage terms, since 32 of those 52 properties contain relevant traditional character buildings within that agreed DCP, they constitute 62%. In Vernon Street itself, 58% of the buildings in the DCP are not only traditional but also “timber and tin”. The Planning Scheme, under Chapter 2, Section 4.2.2.4, when referencing DCPs of this type states that “at least two thirds of the precinct contains pre-1946 houses”. This Section also refers, relevantly, concerning older suburbs, to the “unique character” derived mainly from the topography, urban layout and “timber and tin” architecture. Furthermore, it states that DCPs also contain non-residential buildings or structures which “contribute” to the “character” of the “area”.
- [11]It is not in contention that, since all of Vernon Street is in an LMDR Area and since only pre-1946 traditional “timber and tin” houses are afforded protection under the Planning Scheme’s Demolition Code (“Demolition Code”), only 7 of the 24 properties in Vernon Street (i.e. 29%) have buildings which are afforded demolition protection. Mr McDonald’s report (Exhibit 5) stated that 54% of the properties in Vernon Street have unsympathetic modern buildings which express no traditional character “but, instead, establish the street’s overall modern building character”: at [4.5].
Demolition Code
- [12]Section 3 of the Demolition Code sets out various “purposes” of the Code. The Purpose explains what the Code seeks to achieve: see Planning Scheme, Chapter 5, Section 1.1. It is agreed that the following 3 are the only ones that are potentially relevant. They, in relevant terms, are:
- to “protect” the residential buildings that “give” the “Residential Areas” in the DCP “their traditional character and amenity” (discussed in Section 5 of the Planning Scheme at page 45);
- to “ensure” the “preservation” of buildings where “they” form “an important part of a streetscape” (where the buildings and streetscape were constructed and, or alternatively, established in or prior to the end of 1946); and
- in conjunction with the Residential Design - Character Code (“RD-C Code”), to “ensure” that “precincts” of houses constructed in or prior to the end of 1946 are “retained” (which itself reflects the same purpose).
- [13]With respect to the Performance Criteria and Acceptable Solutions set out in Section 5 of the Demolition Code, it is agreed that not all are relevant.
- [14]Insofar as certain of the Performance Criteria are relevant, it is agreed that part of P1 is applicable. Relevantly, it states that, where there is a residential building, the building “must not contribute positively” to the “visual character of the street”. Although not directly relevant, A1.4 does combine both “character” and “street” in its ambit. It is at least instructive that the emphasis there is on the street having “no” traditional building character.
- [15]As to Acceptable Solutions, it is not in contest that the only solution applicable is one part of A1.3. It states, relevantly, that, where there is a residential building, the demolition of a building “will not result” in “the loss” of traditional “timber and tin” building “character” within the DCP where it is in a LMDR Area.
- [16]It is accepted that relevant judicial authority means that it is sufficient if the terms of either A1.3 or P1 (in its identified respects) are satisfied by the appellant.
- [17]With respect to those matters just discussed, the JER stated that the building on the site was “recognisably” a pre-1946 house which expresses “traditional building character” as described by Section 4 of the Demolition Code (paragraph 10) and that it is “structurally sound and/or capable of structural repair” (paragraph 11).
- [18]The impact assessable application (for “demolition” and new works) was made to the respondent (“BCC”) on 3 March 2014, which the application was refused on 4 July 2014.
Assessment Regime
- [19]Since the development application requires code assessment, it must be carried out in accordance with s 313 of the Sustainable Planning Act 2009 (“SPA”). Under s 313(2)(c) that assessment is to be carried out against applicable codes which, in this instance, is, in particular, the Demolition Code. Section 313(3) states that the assessment manager must assess the application having regard to, among other matters, the “common material” (which includes the submissions received from the public about this development application: they are in Exhibit 2).
- [20]Pursuant to s 326 of the SPA, the decision must not conflict with the Planning Scheme unless, relevantly, there are sufficient grounds to justify the decision and despite the conflict. Such “grounds” are defined to mean, under Schedule 3 of the SPA, matters of public interest (which do not include the personal circumstances of the applicant, the owner or an interested party).
- [21]Under Chapter 3 of the Planning Scheme, for Code Assessment, the “Code” is the Demolition Code, with its Purpose, Performance Criteria and Acceptable Solutions. It is common ground that Acceptable Solutions represent the preferred way of complying with the Performance Criteria, although there may be other ways to comply that meet the Code’s Purpose (according to Chapter 5 of the Planning Scheme).
- [22]The appeal is brought pursuant to s 461 of the SPA; and s 493(1) states that the appellant bears the onus of proof.
- [23]In interpreting the terms of the Planning Scheme, it is salutary to be reminded that the Court of Appeal in Stockland Development Pty Ltd v Townsville City Council & Ors[1] noted that it would be a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which would characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: per de Jersey CJ, at 324 [25]-[26].
Authorities on demolition
- [24]Although Unterweger v Brisbane City Council[2] set out many relevant considerations, I will concentrate, for this case, on those that involve distinctly appropriate aspects: at 338 [10], per Rackemann DCJ. They are:
- that it is not necessary that the street or the dwelling are “pristine” in order for the demolition to be refused; and
- that it is relevant to enquire whether the street in question has been “robbed” of its traditional character by the extent of redevelopment.
- [25]That last aspect was also dealt with by Quirk DCJ in Berlese v Brisbane City Council[3]. He held, in the circumstances of that case – where 10 of the 14 buildings in the street were pre-1946 buildings – that, while it was true that a good deal of redevelopment had taken place in the street, the street still enjoyed “traditional building character”: at 322 [14].
- [26]In Lonie v Brisbane City Council[4], Skoien SJDC sagely remarked that, with respect to a particular building’s importance to the “visual character” and amenity of the local streetscape, it should be approached from the perception of an average person walking along the street and looking about: at 212.
- [27]Since the term “character” has become such a crucial determinant in this case, it is timely to be reminded that the term, when used in a planning scheme such as this, “has a wide meaning and must be considered in the context in which the term is used in the scheme”: per Robertson DCJ, in Rosswalmore Property Pty Ltd v Maroochy Shire Council[5], at 79 [40]. He, further, noted that the term was relevantly defined in The Macquarie Dictionary as “the aggregate of qualities that distinguishes one … thing from others”: (emphasis added) at 80 [40].
- [28]Recently, in Thurecht & Anor v Brisbane City Council[6], it was found that the “street” for which the visual character was under consideration, was the “whole” of that street: at [41]. It was also noted that, with respect to the decision of Leach & Ors v Brisbane City Council[7], the Court had accepted that, in appropriate circumstances, a particular street for the purposes of a DCP “may be merely a section of it” (at 618 [33]), although it was held by Searles DCJ in Thurecht that this was not so for the case that he was then considering: at [38].
- [29]In Leach, in holding that, for the purposes of consideration of the Demolition Code, the street “may well have more than one character”, Searles DCJ, after noting that that was only to be done “in appropriate circumstances”, referred to Lynch v Brisbane City Council[8], a decision of Robin QC DCJ: at 618 [33]. There, the DCP was confined to the western part of a particular street. In dismissing the appeal denying demolition, it was held that that particular part “coinciding with the DCP” remained as a reasonably intact collection of pre-1946 “timber and tin” buildings with only a limited number of intrusions: at 323 [19]. With particular reference to P1, Robin QC DCJ stated that, if he “did not yield to (his) own strong inclination to take a more restrictive view of what is the ‘street’ than the experts did, and confine it to the DCP area (or the DCP as changed by existing and anticipated development approvals) – even to the southern side” of the street, there was still a positive contribution: at 324 [22]. Apart from the two cases last mentioned in this section, the cases where it was held “appropriate” have been where a discrete section of the one “street” has first been carved out from the remainder.
- [30]As submitted by the appellant, Leach had held that, in construing the particular terms of P1 referable to “the visual character of the street” under examination, they were not such appropriate circumstances: at 618 [34]. Importantly for a consideration of the present set of circumstances, Searles DCJ reasoned that, while the street might well contain houses of various styles, in order to determine the visual character of the street, “one character has to be identified reflecting the aggregate of (its) features or traits as above defined”: also at 618 [34]. He then went on to hold that P1 “speaks of the character of the street not the character of various segments of a street” or, to put it “another way”, in determining the street’s character for the purposes of P1, the task is to consider the visual character of the street as a whole, not the character of houses or groups of houses in isolation: also at 618 [34]. On the facts in Leach the conclusion reached was that the “street” had “moved well away from the traditional character it manifested in 1946”, “notwithstanding that there remained a small number” of such houses: at 619 [35].
- [31]Given the JER agreement about the “street”, there is no issue here about a “part” of the street. Rather, the concern here is whether such a street, as identified, has only one “character”. Wallace v Brisbane City Council[9] does not assist despite its apparent appeal. As for Ken Ryan & Associates v Brisbane City Council[10] and Litbit Pty Ltd v Brisbane City Council[11], despite those cases considering one side only of the relevant street as appropriate, both were primarily concerned with Acceptable Solution A1.3 when it formerly referred to a “street” and not, as here, to the DCP. To the extent that Ken Ryan canvassed P1, no apparent determination of it was made; and, for Litbit, the whole of the street appeared to have been taken to be relevant, but the building’s “contribution” was “relatively poor”. That has the necessary consequence that the focus of the arguments concerning the test undertaken, though relating to both “character” and “street”, was directed to “loss” (not “positive (contribution)”) and “not resulting” (not “not contributing”). In that context then, it is unsurprising: for the former, that, where there was a lack of traditional character on the northern side (which contained the building), by dint of its location and immediate surroundings, the demolition would not result in a “loss” (at 151 [24]); and, for the latter, where the southern side contained the building, the traditional character was found to be relatively limited, “lacking the relative harmony of the streetscape opposite”, such that the same character would remain “albeit with the loss of one structure”: at 206 [29].
Consideration of P1
- [32]The appellant is required to demonstrate, for the relevant part of this particular Performance Criterion, that the building on the Site must “not” “contribute positively” to the “visual character of the street”. Considering the use of the “streetscape” in the Purpose, its omission here must have some significance. The latter’s definition in Chapter 3 of the Planning Scheme is wider than the “visual character of the street”, although there are common features. Where its relevance impinges is, consonant with the second of the identified “purposes”, that, where as here (from Exhibit 5, Figure 2) there was “streetscape” which was “established pre-1946” (see: [4.1]), buildings (also constructed in that era) are to be preserved “where they form an important part of “(such) streetscape”.
- [33]As I have analysed earlier, the visual character of the street is that which the street exhibits as a distinguishing feature. As such, in a street such as this, it is decidedly artificial to conclude that a predominant character (whatever that means) determines, for every building in the street, the character which must be considered for the purposes of P1. As remarked earlier, A1.4 is clear when it relies on “no” relevant character. The omission of the opposite element in P1 tells against the notion of the character being, necessarily, either all or nothing.
- [34]Mr McDonald, called by the appellant, sought to identify an “overall” character (consistently with the submissions on law made by the appellant). Nevertheless, he freely conceded that, while his conclusion was that it was “modern”, he acknowledged that there also was some traditional building character which was evident in the street, since 9 of 24 houses possessed that character (particularly in parts of the street to the west of the subject house on the southern side). When pressed, he conceded that the visual character “could be” described as “mixed”.
- [35]To the extent that Mr McDonald relied upon a concept of “streetscape”, that (as already observed) is only indirectly relevant in this particular consideration. Its limitation is that it is directed to the Purpose which merely explains what is sought to be achieved. It is a word that is absent from P1 itself. But, since that original pre-1946 streetscape exists, at least in part, it is difficult to conclude that this building on this Site is not an important part of it – but, of course, this would be simply one factor. Furthermore, to the extent that Mr McDonald relied upon excluding houses of traditional building character on the basis that, since they were not within the DCP, their continued contribution could not “be relied upon”, that, again, is not an attribute of the relevant elements of P1. In addition, to the extent that he referred to “open” and “closed” vistas from various directions, while noting that vistas do not appear in either P1 or the Purpose, I take the approach, from the authorities mentioned, that the appropriate perspective is one of moving along the street. On that matter, as the “view” that was undertaken confirmed, the totality of the photographic evidence revealed that the visual character of the street is partly determined by the vegetation on the pavement (which is significant in parts) and partly determined by the mixed housing built along it. Exhibition of a “larger footprint” or “greater bulk” has little to do with identifying traditional or other character of any building apart from the nature of the building itself. Similarly, for this purpose, it is difficult to see, apart from any existing approvals, what the lack of demolition control has to do with the “current” character of the identified buildings in that part of the street outside the DCP.
- [36]Mr Kennedy, called on behalf of the respondent, identified the visual character as “varied”. If one begins from that base, it is then accurate to conclude that the northern side of Vernon Street has a predominantly post-1946 visual character and the southern side a predominantly pre-1946 traditional visual character. This is not like those cases where it was clearly established that a significant predominance of one character diminished the other so that, in a realistic and practical way, a “character” could be determined which governed the characterisation. It is useful to consider, how, otherwise, a changing character suddenly evolves from “traditional” to “modern”, particularly, where, as here, Mr McDonald based the “modern building character” on 54% (as earlier canvassed) and where he equally contributed to the JER which stated that Vernon Street “has some traditional building character” - although he was also a party to the qualification that each disagreed “as to the nature, extent, and importance of this character”: at [12].
- [37]But what does the onus to establish that the building does not “contribute positively” mean in circumstances where there is no clearly significantly predominant identifiable character? It is only if one can characterise the visual character as a significantly predominant one and, thereby, exclude the fact that there is any realistic co-existing character at all which has anything of significance to do with a pre-1946 character that one could conclude that it did not contribute positively to that. But even that presents its own conundrum. Why would it be that a building that was otherwise capable of being protected, preserved and retained for its pre-1946 character not be retained for a “modern visual character” in a positive way, when it is still an “important part of the streetscape” in a relatively evenly mixed character street and where there is nothing in the topography that makes the building on the site more or less visible, in a material way, than other buildings in Vernon Street? After all, P1 does not qualify “character” in the way that the relevant A1.3 acceptable solution does here. Applying “fluidity and flexibility” in a Code which is required to recognise that only one side of a “street” might be within the DCP, there must be an interpretation open, if only in such circumstances, to properly accommodate “mixed” or “varied” character of this dimension and importance. On Mr McDonald’s approach, he was unable to explain why there would be no positive contribution here (apart from the obvious argument that an otherwise characteristic “timber and tin” character building was not “modern”, and, therefore, not positively contributing to modernism).
- [38]Hence, by whatever trail of such reasoning that is used, it cannot be concluded that P1 has been satisfied in this case on these particular facts.
Acceptable Solutions – A1.3
- [39]This particular consideration concentrates, first, on the demolition and, secondly, on the negative result that would flow from that demolition. What needs to be established is that there is no resulting loss of traditional “timber and tin” building character “within” the DCP. This has particular resonance with the third of the relevant “purposes”. Quite demonstrably, “loss” ought to bear some qualifier in this particular interpretation. It has not been argued from either side that the loss should be measured other than in terms of “meaningful”, “significant”, “concerning” or “unacceptable”: see, for instance, Lynch v Brisbane City Council[12]. And “significant” would need to be interpreted as “of significance”, rather than, for instance, “predominant”.
- [40]One of the clear concerns of this particular provision is its focus on the DCP. That is why, understandably, Mr McDonald, in particular, placed great stress upon the percentages within the DCP.
- [41]While it is acknowledged, as this Court did in Unterweger, that the particular demolition does not have to amount “to the straw that would break the camel’s back” (at 341 [29]), a stage must eventually be reached whereby successive degradations by small individual percentages cause that the requisite particular building character to be gone, which itself would mean that there would, therefore, by any such demolition, be no resulting loss of that character. The particular difficulty is illustrated by that part of Mr McDonald’s evidence where, perhaps sensibly, he struggled to identify a percentage threshold when that relevant character would be gone – or “robbed” (as expressed elsewhere). It is not unimportant that the notional 66.6% in Chapter 2 (Section 4.2.2.4) is above the existing 62% identified here.
- [42]Mr McDonald also sought to identify this particular building as lacking prominence. This apparently was directed towards showing that its demolition would not be a “loss” – but it is a difficult concept to work into the test on its present wording especially where the “bulk, building form and scale” of this particular character tends away from a heavyweight touch.
- [43]As for Mr Kennedy, he stressed: the diminishing percentage in the DCP collectively; and the fact that 7 of the 12 buildings within the DCP in Vernon Street did display that character (particularly those buildings at the mid to western end which, apart from numbers 99 and 115 on the southern side, were all pre-1946 – including the building immediately to the east of the Site).
- [44]The evidence demonstrates that it has not been proved to the requisite satisfaction that the demolition of the building on the Site will not result in a loss of significance of the relevant character “within” the DCP in this LMDR area, if only because it is one fewer such building in an area that has become significantly degraded.
Conflict
- [45]This is not a case where it is necessary to consider the issue of there being a conflict with the Planning Scheme but, also, there being, arguably, sufficient grounds to justify the decision despite that conflict.
Outcome
- [46]On the conclusions that I have reached, I am inclined to simply declare that compliance with the Demolition Code has not been established. But, because the parties may wish a different order to be made (such as the whole appeal being dismissed), I will ask for further submissions as to what order, or orders, should be made on the conclusions reached.