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Tong Town Planning & Development Services Pty Ltd v Brisbane City Council[2017] QPEC 70

Tong Town Planning & Development Services Pty Ltd v Brisbane City Council[2017] QPEC 70

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Tong Town Planning & Development Services Pty Ltd v Brisbane City Council [2017] QPEC 70

PARTIES:

TONG TOWN PLANNING & DEVELOPMENT SERVICES PTY LTD

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

761/2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

31 October 2017, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2017

JUDGE:

Everson DCJ

ORDER:

The appeal is allowed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPEAL – application for demolition of a pre-1946 house – whether house does not contribute positively to the visual character of the street

COUNSEL:

K.W. Wylie for the appellant

N.D. Loos for the respondent

SOLICITORS:

Purcell Fox Lawyers for the appellant

Brisbane City Legal Practice for the respondent

  1. [1]
    This is an appeal against the decision of the respondent made on 3 January 2017 to refuse a development application for the demolition of a pre-1946 house (“the house”) at 13 Sawtell Lane, Auchenflower (“the land”).
  1. [2]
    At the commencement of the hearing of the appeal, the issues in dispute narrowed considerably. They are now confined to whether the development application is in conflict with various provisions in the Traditional building character (demolition) overlay code (“the demolition code”) in the respondent’s planning scheme, City Plan 2014 (“City Plan”) which are particularised below.
  1. [3]
    The land has a total area of 587m2, and frontages to both Sawtell Lane and, significantly, Milton Road, where it has a frontage of approximately 16.4m along the southern boundary.  It is uncontentious that the presentation of the house to Sawtell Lane is not relevant to the issues in dispute between the parties.  It is equally uncontentious that the house expresses traditional building character as a pre-1946 residential building.  It forms part of a contiguous group of 11 pre-1946 buildings on the inbound side of Milton Road between Jones Street and Munro Street.  It is from the perspective of Milton Road that the conflicts with the demolition code are alleged.
  1. [4]
    The land is in an elevated section of Milton Road, approximately 6-7m above street level. It sits atop a near vertical rock retaining wall, the base of which is only separated from the roadway by a very narrow concrete pathway. Above the retaining wall is a cyclone fence approximately 1.2m in height next to another narrow pathway which adjoins the boundary with the land. The house sits close to this boundary obscured by a high continuous wooden fence and a considerable amount of untidy vegetation which may serve to attenuate the noise from the road below which, at this point, consists of five lanes and is very heavily trafficked.
  1. [5]
    While Mr Mack, the architect who gave evidence on behalf of the appellant, expressed the view that Milton Road is merely an arterial road with a “linear character”, I prefer the view expressed by Ms Morrissy, the town planner who also gave evidence on behalf of the appellant, who acknowledged that parts of Milton Road “contain easily identified buildings that display traditional building character” and that traditional building character may be expressed along certain parts of Milton Road. Her view is supported by Mr McDonald, the architect who gave evidence on behalf of the respondent. So far as the precinct of character houses surrounding the house is concerned, these are situated adjacent to the large cutting in front of the house which reaches 9m above the road level at its highest point. These houses do not present to Milton Road as a coherent group of traditional character buildings and many are vertically separated from Milton Road to such a degree that their contribution to traditional character in Milton Road is not of any great significance.  In this regard, I prefer the evidence of Mr Mack who stated that they are “an abstraction”, by which he meant that other than from an aerial perspective there is a lack of a coherent presentation.
  1. [6]
    The house itself can only be glimpsed to a limited extent from a few select vantage points. It is not at all readily perceived by motorists travelling along Milton Road.  As Ms Morrissy observed, even if the vegetation between it and Milton Road was removed, the siting of the house in the context of the surrounding properties atop the cutting means that any contribution the house makes to the visual character of this part of Milton Road is extremely limited.  At this point Milton Road is dominated by the significant cutting and the high rock retaining walls on either side.  The respondent attempts to address the impacts of the vertical separation and the retaining walls by stressing that the narrow footpaths that run along the top of the cutting on either side are also part of the street.  However, the evidence placed before me of the limited contribution the house makes to the visual character of Milton Road acknowledges the contribution the house makes from these vantage points, as well as from the level of the carriageway.
  1. [7]
    As the land is situated within the Traditional building character overlay, the demolition code applies to it. Relevantly, the demolition code provides:

8.2.21.2 Purpose

(2)The purpose of the code will be achieved through the following overall outcomes:

  1. (a)
    Development protects residential buildings constructed in 1946 or earlier that 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.

…”

  1. [8]
    Thereafter, assessment criteria are listed at 8.2.21.3. A table sets out Performance outcomes and Acceptable outcomes. Relevantly, PO5 states:

“Development involves a building which:

AO5 correspondingly provides, inter alia:

“Development involves a building which:

“(c)for code assessable development:

(iii)development that complies with:

“The effect of s 5.3.3(c)(iii) is that development that complies with A05(c) complies with the purpose and overall outcomes of the code, and in turn complies with the code.”

Obviously the same result appertains where the applicable performance outcomes are complied with. On the facts before me the only applicable performance outcome is PO5(c).

  1. (c)
    does not contribute positively to the visual character of the street.”
    1. (c)
      if demolished will not result in the loss of traditional building character;  or
    2. (d)
      is in a street that has no traditional character.”
    1. [9]
      In City Plan, section 5.3.3 lays down the rules that apply in determining assessment criteria. Relevantly, it is stated:
    1. (A)
      the purpose and overall outcomes of the code complies with the code;
    2. (B)
      the performance or acceptable outcomes where prescribed complies with the purpose and overall outcomes of the code;
    1. [10]
      As her Honour Judge Bowskill QC observed in Marriott v Brisbane City Council [2015] QPELR 910 at 929:
    1. [11]
      Beginning with the acceptable outcomes which are relevant to the dispute before me at A05(c) and (d), I am satisfied that it cannot be said that Milton Road is a street that has no traditional character. I accept the evidence of Ms Morrissy and Mr McDonald that traditional building character is present in the part of Milton Road, where the house is situated. Equally, despite the limited contribution which the house makes to the traditional building character of Milton Road, I am of the view that it cannot be said that demolition of the house will not result in the loss of traditional character.

    “In my view, what is intended by the word “positively” is that there is a contribution which is favourable – that is, it adds to the visual character of the street, as opposed to being neutral (or, for that matter, detracting from it).”

    1. [12]
      I now turn to PO5(c). It is self-evident that it is not sufficient for the house to contribute to the visual character of Milton Road; it must contribute positively in this regard. In Marriott, Judge Bowskill QC observed in this regard at 928:
      1. [13]
        As noted above, the evidence before me establishes that the contribution the house makes to the visual character of this part of Milton Road is extremely limited.  In my view, it does not make a contribution which can be described as favourable, indeed its contribution is so minor given its presentation that it does no more than make a neutral contribution.  I am, therefore, of the opinion that the appellant has demonstrated that PO5 has been relevantly satisfied, because the house does not contribute positively to the visual character of the street in question, namely Milton Road. This means, applying section 5.3.3(c)(iii)(B) of City Plan, that the appellant has demonstrated that the development complies with the purpose and overall outcomes of the demolition code. 
      1. [14]
        I therefore allow the appeal.
Close

Editorial Notes

  • Published Case Name:

    Tong Town Planning & Development Services Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Tong Town Planning & Development Services Pty Ltd v Brisbane City Council

  • MNC:

    [2017] QPEC 70

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    31 Oct 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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