Se Ayr Projects Pty Ltd v Brisbane City Council
[2016] QPEC 3
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- Se Ayr Projects Pty Ltd v Brisbane City Council[2016] QPEC 3
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Se Ayr Projects Pty Ltd v Brisbane City Council[2016] QPEC 3
Se Ayr Projects Pty Ltd v Brisbane City Council[2016] QPEC 3
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Se Ayr Projects Pty Ltd v Brisbane City Council [2016] QPEC 3 |
PARTIES: | SE AYR PROJECTS PTY LTD (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | 2719 of 2015 |
DIVISION: | Planning & Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 21 January 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20, 21 January 2016 |
JUDGE: | Rackemann DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – proposed demolition of a dwelling house in the LMR zone and the Traditional Building Character Overlay – where street with mixed character – where relevant traditional building character was that of the Queensland vernacular or ‘tin and timber’ – whether unsympathetic alterations, including obscuring the timber clad walls with fibro, resulted in the loss of that character – whether the house contributed positively to the visual character of the street |
COUNSEL: | S Ure for the appellant M Williamson for the respondent |
SOLICITORS: | HWL Ebsworth Lawyers for the appellant Brisbane City Legal Practice for the respondent |
- [1]This is an appeal against the refusal by the respondent of a development application for a preliminary approval to carry out building work, namely, the demolition of a pre-1947 dwelling house subject to the Traditional Building Character Overlay. The house is situated at 21 Napier Street, Ascot in Brisbane on land with an area of 610 square meters. It is within the LMR 2 Low-Medium Density Residential (2 or 3 storey mixed) Zone and is currently improved by a single dwelling house. Napier Street is a relatively flat, straight and short street which contains 23 properties, being 12 pre-1947 houses, 10 post-1946 modern multi-unit dwellings and one post-1946 modern house.
- [2]The development application is code assessable pursuant to the relevant planning scheme: Brisbane City Plan 2014. Accordingly, the assessment is to be carried out against the applicable code. In this case, the applicable code is the Traditional Building Character (demolition) Overlay Code. That code has statements of purpose as well as assessment criteria. The purpose of the code is to implement certain policy directions in the strategic framework and to provide for the assessment of the suitability of building work for, amongst other things, the demolition of a building substantially constructed in 1946 or earlier and in a Traditional Building Character Overlay.
- [3]The purpose of the code is to be achieved through a number of overall outcomes which include the following:
(a) Development protects residential buildings constructed in 1946 or earlier to give the areas in the Traditional building character overlay their traditional character and traditional building character.
…
(d) Development protects a building constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier.
…
(e) Development retains a residential building constructed in 1946 or earlier that reflects the traditional building character other than ‘tin and timber’ architecture, if in the Character residential zone.
- [4]The assessment criteria are set out in section 8.2.21.3 of the code. Of particular relevance is performance objective PO5 and AO5, which relate to demolition or removal of a building constructed in 1946 or earlier and relevantly, provide as follows:
PO5.
Development involves a building which:
(a) does not represent traditional building character; or
…
(c) does not contribute positively to the visual character of the street.
AO5
Development involves a building which:
(a) has been substantially altered or does not have the appearance of being constructed in 1946 or earlier; or
…
(c) if demolished, will not result in the loss of traditional building character.
…
- [5]Insofar as PO5(a) is concerned and in particular the corresponding acceptable outcome AO5(a), it was conceded that the building does have the appearance of being constructed in 1946 or earlier, but it was submitted that the building has been substantially altered and does not represent traditional building character, at least traditional building character of a kind which is sought to be protected within the applicable zone.
- [6]As was pointed out in Unterweger v Brisbane City Council [2011] QPEC 134 at para 15, the expression substantially altered, in the acceptable outcome, should be viewed in its context as addressing a performance criterion which relates to whether the building represents traditional building character. And indeed for present purposes, whether it represents traditional building character of a kind which is relevant within the prevailing zone.
- [7]Insofar as PO5(c) is concerned, the expression contribute “positively” should be interpreted in the way indicated by Bowskill DCJ in Marriott v Brisbane City Council (2015) QPEC 45; namely, whether the contribution is a positive one in that it adds to the visual character of the street rather than being neutral. Further, as her Honour also pointed out, the relevant provision focuses upon the visual character of the street rather than simply upon that part of the street covered by the traditional building overlay. Hence, it is relevant, when considering that provision, to have regard not just to the buildings within the street which represent traditional building character, but other development in the street as well which in this case, includes the multi-unit dwellings.
- [8]Insofar as AO5(c) is concerned, the reference to demolition not resulting in the loss of traditional building character should not be approached in absolute terms. In order to satisfy the provision, the loss does not have to be the straw that would break the camel’s back in terms of the retention of any semblance of traditional building character within the street (see Unterweger v BCC (supra) at paragraph 29). The relevant loss should be approached on the basis that it is one which is meaningful or significant (see Wallace v Brisbane City Council (2012) QPEC 47 at para 31).
- [9]Guidance on what constitutes traditional building character is provided by the Traditional Building Character Planning Scheme Policy. Section 2.1 of that policy states that the traditional building character of buildings within the Traditional Building Character Overlay is a combination of one or more of a number of elements. It is clear from that introduction that the elements (which are then elaborated upon in the policy) are not necessarily cumulative prerequisites, but are elements, a combination of one or more of which may provide the relevant traditional building character. The elements are:
(a) traditional building form and roof styles;
(b) traditional elements, detailing and material;
(c) traditional scale;
(d) traditional setting.
- [10]It is uncontentious that the subject dwelling conforms with the description of traditional scale and traditional setting. And so it has, on any view, at least some of the elements of traditional building character.
- [11]As to the other two elements: traditional building form and roof styles and traditional elements, detailing and materials, the relevant part of the policy distinguishes between traditional character of different kinds. It refers to a form of traditional building character which is referred to in one place as the “Queensland vernacular” and in another part as “tin and timber”. Those expressions are used interchangeably and, as Mr Kennedy pointed out, describe a type of timber house constructed before World War II in Queensland.
- [12]The relevant provisions also acknowledge that there are other kinds of traditional character for buildings which were developed in 1946 or earlier. In particular, section 2.2(3) of the policy refers to forms which exhibit:
- [13]Overseas architectural influences, which occurred primarily during the inter-war period and are often influenced by but not limited to art deco, Spanish mission, Californian bungalow and Georgian styles.
- [14]The policy goes on to say that these forms comprise traditional building character where the site is in the Character Residential zone, but not where the property is in a Low-Medium Density zone, as the subject property is.
- [15]In section 2.3 of the policy, it is said that these other forms which exhibit overseas influence, feature differing elements, detailing and materials. They usually incorporated face brick or rendered walls on the exterior and had a base material of fibro, masonry or concrete, with a tile or tin roof. By comparison, the Queensland vernacular is said, in section 2.2 of the policy, to usually comprise:
(a) a core with attached or integrated verandahs raised above the ground on timber supports which are now often replaced with concrete or steel stumps or steel beams;
(b) enclosed areas under the dwelling house that generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor entrance and verandahs;
(c) roof forms of medium pitched pyramids, hips or gables.
- [16]Insofar as elements, detailing and materials for such buildings, section 2.3 of the policy states that:
The traditional character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens, balustrades and batten panels that cast shadows and provide three-dimensional effects. These lightweight external elements:
(a) reduce building bulk;
(b) form a transition with the external landscape;
(c) make an appropriate response to the local climatic conditions of strong sun and high rainfall.
- [17]Traditional character is also said to be:
…derived from the relatively limited range of materials available at the time of construction.
- [18]This, the policy says –
provided a unifying theme of painted timber walls and corrugated steel and terracotta tile roofing.
- [19]It is tolerably clear when one has regard to the town planning provisions, including the provisions of the code and the policy, that the traditional building character of relevance in the assessment of this building is the Queensland vernacular or “tin and timber” character.
- [20]There can be no doubt that the subject building, at least when it was first constructed, was of that character. The dispute was as to whether unsympathetic changes or alterations, which have occurred since, have resulted in a substantial alteration, such that it does not represent traditional building character of that kind.
- [21]It is, of course, not uncommon for the Queensland vernacular style of housing to have been the subject of some alteration over time. In this case, the alterations have included the enclosure of the front and side verandahs, with removal from view of original balustrades and decorative detailing and their replacement with modern window assemblies, the addition of modern window hoods, which may or may not have replaced old or original window hoods; the addition of a timber door at the lower level, so as to enable part of the undercroft of the house to be used as a vehicle garage; the addition of a vent in one of the gables of the roof form; and the replacement of the balustrading on the stairs, albeit with a balustrade that is sympathetic to the character of a Queensland vernacular building.
- [22]Not even Mr McDonald, who was the expert called on behalf of the Appellant, placed decisive weight on those changes considered by themselves. The most weighty factor in his conclusion that the building had been changed so that it was of a different typology, is the fact that the timber cladding to the external walls has been covered by fibro sheeting. This Mr McDonald saw as being the most important change which took the building out of the Queensland vernacular or “tin and timber” character.
- [23]Mr Kennedy, the expert called by the Respondent, reached a differing conclusion. There was some mention made in Mr Kennedy’s evidence to the fact that the change constituted by the sheeting is reversible. That may well be true, but neither the provisions of the scheme nor the policy focus upon the ability to restore the building, but on the character of the building as it presents.
- [24]Insofar as the effect of the addition of the fibro is concerned, counsel for the Appellant did not suggest that this converted the building to one of the other forms of traditional building character referred to in the policy, namely Art Deco, Spanish Mission, Californian Bungalow or Georgian. Although those types of buildings often incorporated a base material of fibro, the fact that fibro exists on the current building does not mean that it is a building of any of those characters. Rather, it was submitted that whilst not being Art Deco, Spanish Mission, Californian Bungalow or Georgian, it nevertheless fell short of being a Queensland vernacular or “tin and timber” house by reason of the addition of the fibro.
- [25]In this regard, I was referred to the decision of Andrews SC DCJ in Affram Pty Ltd v Brisbane City Council [2010] QPEC 47. At paragraph 35, his Honour said:
To hide the structural features behind external asbestos walls is to remove the relevant shadows and three-dimensional effects, to add a historically discordant material to the relatively limited range of materials available at the time of construction and to clash with any unifying theme of painted timber walls.
- [26]I accept that the use of fibro to hide the timber cladding of the building has had the effect of reducing its traditional character. I do not accept, however, that the addition of fibro in that way necessarily, in every case, disqualifies a building from continuing to express a Queensland vernacular or “tin and timber” character.
- [27]It is necessary, as indeed, his Honour did in the Affram decision, to assess whether there is sufficient of that character remaining so that the building can be said to continue to represent traditional building character of that kind and to provide a positive contribution to the visual character of the street. In the Affram decision, his Honour ultimately concluded that the changes were so significant that the house no longer had traditional “timber and tin” building character. The question is whether a similar conclusion should be reached in this case. It may be noted that in the Affram decision, not only had the exterior walls been cladded with asbestos, but the building had other changes, including building - in, which included the addition of flats at street level.
- [28]The element of painted timber walls is one of the traditional elements, detailing and materials which is characteristic of the Queensland vernacular style of housing, but it is not the only element or feature of such housing. As has already been observed, a significant feature of such housing is its building form and roof style. The subject building continues to have a building form and roof style which accords with the Queensland vernacular character. Whilst its painted timber walls may now be concealed by fibro sheeting, it also retains other traditional elements, detailing and materials, such as eaves, balustrades and batten panels.
- [29]As was submitted on behalf of the Respondent, the building continues to have a roof shape and form which is intact and exhibits “tin and timber” character. It is raised on stumps, with battens underneath, giving the impression of a lightweight structure, in keeping with “tin and timber” architecture, and it has timber stairs providing access to the enclosed verandah, which is in keeping with “tin and timber” architecture.
- [30]Whilst, as I have acknowledged, the fibro cladding has reduced the strength of the Queensland vernacular character of the building, it has not done so substantially or to a point where the building no longer represents that form of traditional building character, in my view. My McDonald’s opinion that the building’s typology has changed, in my view, is not justified, and in this respect, I prefer the conclusion of Mr Kennedy. I do not consider that PO5(a) or AO5(a) are satisfied.
- [31]What remains is a consideration of PO5(c) and corresponding AO5(c). Of relevance to that assessment is the presentation of the building, including with its changes, and an assessment of the visual character of the street and what contributes positively towards it, and in the case of AO5(c), whether there would be a meaningful or significant loss of traditional building character as a result of the demolition of the building.
- [32]In this regard, Mr McDonald, in his evidence, focused not only upon the changes to the building, but on the street and the distribution, throughout the street, of the older housing on the one hand and the modern dwellings, particularly multi-unit dwellings, on the other. He saw the experience of walking down the street as involving a visual kaleidoscope with parts of the street having a predominance of older housing, whilst other parts of the street having a predominance of multi-unit dwellings. He saw the subject site as being in a part of the street which has a predominance of multi-unit dwellings and regarded its visual connection with the housing in the street as being weak. He did not see the severing of that weak link by the demolition of the subject property as resulting in a significant loss of traditional character, nor did he see the house, with its alterations, as contributing positively to the visual character of the street.
- [33]Mr Kennedy expressed a contrary opinion. He saw the street as being of a mixed character and did not ascribe to the approach of trying to break up the street into smaller parts, as did Mr McDonald. He saw the subject house as having a much stronger link with the other housing, in terms of its visual connection, and pointed out that there were a number of consistent elements between the subject building and other 1946 and earlier housing in the street. In particular, as follows:
(a) common roof designs;
(b) similar form (shape);
(c) each of the dwellings is raised on stumps;
(d) the use of timber battens and timber steps;
(e) common window shape/configuration; and
(f) similar-shaped gables.
- [34]As I have already observed, Napier Street is a relatively short, flat and straight street. The evidence, my understanding of which was enhanced by a site inspection, was that as one proceeds along this relatively short street, there is no, or virtually no, point at which one does not have within view both multi-unit dwellings and 1946 and earlier housing.
- [35]It is quite right to say that the mix within the street between those types of development is not a uniform mix. It is not a case of there being a multi-unit dwelling, followed by a house, followed by another multi-unit dwelling. There is, to an extent, some grouping within the street, but it seems to me that Mr McDonald’s assessment put too great a weight upon that consideration, and that Mr Kennedy’s assessment of the character of the street as mixed is more realistic, in the circumstances.
- [36]Within that mixed streetscape, there are a significant number of buildings of a non-traditional character kind, but the visual character of the street is benefitted by the presence of a significant number of the houses built in 1946 or earlier.
- [37]It must readily be acknowledged that the subject house does not contribute as positively as some others most notably the house at 28 to 30 Napier Street, which is located on the opposite side but nearby the subject house but the contribution of the subject house is not as low, in my view, as Mr McDonald assessed. I am satisfied its contribution falls somewhere above that assessment of Mr McDonald, although perhaps not as high as Mr Kennedy assessed it. Nevertheless, I am satisfied that, if demolished, the result would be a meaningful and significant loss of traditional building character, and that the house currently does contribute positively to the visual character of the street. I am satisfied that neither PA5(c) nor AO5(c) are satisfied.
- [38]In the circumstances, I am satisfied that the proposal does not accord with the code. There was no basis put forward to justify approval of the application, in the event of such conflict, and I am satisfied that there is none. Accordingly, the appeal is dismissed.