CSG Property Group Pty Ltd v Brisbane City Council [2020] QPEC 66 [2021] QPELR 1223

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: CSG Property Group Pty Ltd v Brisbane City Council [2020] QPEC 66 PARTIES: CSG PROPERTY GROUP PTY LTD (ACN 163 619 841) TRADING AS DAVRAN DEVELOPMENTS AND MAI NGOC THI NGUYEN (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 1162 of 2020 DIVISION: Planning and Environment Court PROCEEDING: Applicant appeal against refusal ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 17 December 2020 DELIVERED AT: Brisbane HEARING DATE: 14 and 15 September 2020 JUDGE: Williamson QC DCJ ORDER: The appeal is adjourned to 5 February 2021. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to refuse a code assessable development application to partially demolish, rotate and reposition a dwelling house constructed prior to 1911 – where dwelling house traditional building character – whether development application complies with the Traditional building character (demolition) code in the respondent’s planning scheme – whether the development application should be approved where non-compliance established with the planning scheme. LEGISLATION: Planning Act 2016, ss 45, 59 and 60 Planning & Environment Court Act 2016, s 45 CASES: Brisbane City Council v Klinkert [2020] QPELR 579 COUNSEL: Mr D Purcell for the appellant Ms K Buckley for the respondent SOLICITORS: Connor O’Meara for the appellant City Legal for the respondent -- 1 of 12 -- [1] This is an appeal against Council’s decision to refuse a code assessable development application made in respect to land situated at 21 Brook Street, South Brisbane (the land). The development application made on behalf of the appellants seeks the following approvals: (a) a development approval for a material change of use for a multiple dwelling; (b) a development approval to reconfigure the land from 2 into 3 lots; and (c) a preliminary approval for building work that involves the partial demolition, rotation and repositioning of a pre-1911 dwelling house. [2] The issues to be determined in the appeal relate solely to the building works component of the development application. Council contends this aspect of the development application should be refused because: (1) the development does not comply with assessment benchmarks prescribed in its planning scheme, City Plan 2014; and (2) the nature and extent of the non-compliances with City Plan 2014 are significant. [3] By way of relevant background, the land is an elongated regular shaped lot. It has a total area of 923 m2 and frontage to Brook Street in the order of 15 metres. The land has a substantial fall from the rear to the street frontage, in the order of 8 to 9 metres. [4] The land is improved with a dwelling house, which is located on the elevated part of the land to the rear. It is known as ‘Hillside’. The dwelling house is a highset ‘timber and tin’ traditional character house with a central timber core surrounded by enclosed verandahs. The verandahs, which were enclosed after 1946, are topped with a galvanised iron hipped roof. Heritage architects called to give evidence in the appeal agreed the dwelling house was consistent with late-colonial era residential construction, and likely to have been built prior to 1900. [5] At the rear of the dwelling house is a semi-attached kitchen and brick fireplace/chimney. The kitchen was originally connected to the dwelling house by a narrow walkway. At a time unknown, the walkway was expanded, and enclosed, to create a new room between the dwelling and the kitchen. [6] The dwelling house is structurally sound and in good condition. It was described in the evidence as reasonably intact from a traditional building character perspective. [7] When viewed from Brook Street, the dwelling house is set back about 31 metres from the front boundary. It is also obscured from view by existing vegetation and a carport structure.1 The structure is a post-1946 addition and fairly described as unsympathetic to the traditional building character of the dwelling house. The existing vegetation, carport structure, and front setback negatively impact on the contribution the dwelling house makes to the traditional character of Brook Street. It can also be observed that the semi-attached kitchen and brick fireplace/chimney are not readily discernible from the street. From this view, the kitchen and chimney make no meaningful contribution to the traditional building character of the dwelling house, or the traditional character of Brook Street. 1 Ex. 2.001, Figure 10. -- 2 of 12 -- 3 [8] Brook Street is part of an established residential neighbourhood. It is developed with a mix of dwellings, including low-medium density land uses. The character of the street includes traditional building character, with some dwellings constructed prior to 1911, and some constructed during the period 1911 to 1946. A number of these dwellings have been altered in a manner unsympathetic to traditional character.2 The character of the street also includes dwellings constructed post 1946, which are also unsympathetic to traditional character.3 [9] The two lots immediately adjoining the land are developed with pre-1946 dwellings that contribute to the traditional character, and traditional building character, of the street. The setback of each adjoining dwelling house to the street is not uniform.4 They are however complementary to the front setbacks in the balance of the street, which are not uniform.5 The setbacks on the adjoining lots are substantially less than the 31-metre front boundary setback for the dwelling house on the land. [10] The scope of works proposed by the appellants relevant to the disputed issues can be described as follows: (a) the existing post-1946 carport structure will be demolished; (b) the dwelling house will be rotated anti-clockwise 90 degrees and repositioned closer to the front boundary; (c) the brick chimney structure will be deconstructed, relocated and reconstructed on the eastern side of the repositioned dwelling house; (d) the semi-attached kitchen will be severed from the rear of the dwelling house and reconnected to the rotated and repositioned dwelling house at its rear; (e) parts of the dwelling house that pre-date 1911 will be demolished to facilitate its rotation and repositioning – this will involve the demolition of: (i) the edge of a side verandah, and adjacent core wall; (ii) the corner of a verandah, including the convex roof above; and (iii) pre-1911 components associated with the semi-attached kitchen, being the link between the dwelling and the kitchen. [11] The appellants’ development application was code assessable. Section 45(3) of the Planning Act 2016 (PA) mandates that this assessment must be carried out against, inter alia, the assessment benchmarks in a categorising instrument for the development. Here, the categorising instrument is City Plan 2014. This planning document contains the principal assessment benchmark against which the building works are to be assessed, namely the Traditional building character (overlay) demolition code (Demolition code). The Demolition code applies to the proposed rotation and repositioning of the dwelling house because the land is included within the Traditional building character overlay in City Plan 2014, and the works are proposed for a structure built prior to 1946. 2 Ex. 2.003, Figures 10, 17, 19 and 28. 3 Ex. 2.003, Figures 13, 14 and 21. 4 Ex. 2.002, Figure 5. 5 Ex. 2.003, Figure 2. -- 3 of 12 -- 4 [12] The Demolition code includes a purpose statement, overall outcomes and a table setting out performance outcomes and acceptable outcomes. Section 5.3.3(4)(c) of City Plan 2014 identifies how compliance is demonstrated with the code. The provision states: “Code assessable development: … (c) that complies with the purpose, overall outcomes and the performance outcomes or acceptable outcomes of the code complies with the code;” [13] To assist with an assessment of the proposed works against the Demolition code, I had the benefit of evidence from two Heritage architects, Mr Elliott and Mr Kennedy. The former was retained by the appellants. The latter was retained by Council. [14] Mr Kennedy opined that the proposed works, if approved, would result in a diminution of traditional character and traditional building character. In his view, this called for refusal of the development application. As I understood his evidence, Mr Kennedy concluded there would be an unacceptable diminution of traditional character and traditional building character by reason of the following matters: (a) the semi-attached kitchen and fireplace/chimney, which are integral components of the dwelling house, will not be retained in their original position relative to the remaining structure; (b) the dwelling house will no longer present as a late-colonial era residential dwelling – it will present as an asymmetrical bungalow and appear as if it were constructed in a different era; (c) the appearance of the dwelling house will be non-authentic – it will appear as an asymmetric bungalow with a feature chimney at the front of the property, which is atypical and an unusual form of traditional building character; and (d) the setting of the dwelling house will not be complementary to the traditional setting of other dwelling houses in Brook Street constructed prior to 1946. [15] As against this, Mr Elliott opined that the proposed works: (1) appropriately respected the traditional building character of the dwelling house, and the traditional character of Brook Street; and (2) were necessary to unlock the development potential of the land. [16] The difference between the Heritage architects turns on the acceptability, or otherwise, of the extent of demolition, and the change proposed to the appearance of the dwelling house. Whether the proposed demolition, and extent of change, are acceptable in planning terms is to be determined having regard to the Demolition code. -- 4 of 12 -- 5 [17] The parties prepared an agreed list of issues, which was tendered on the first day of the hearing.6 The list makes clear that Council asserts the demolition, rotation and repositioning of the dwelling house gives rise to non-compliance with the following provisions of the Demolition code, namely: (a) Overall outcomes (2)(a), (b), (d) and (h); and (b) Performance outcomes PO2 and PO10. [18] Ms Buckley fairly, and sensibly, conceded that PO2 and PO10 are the starting point for the assessment. [19] Performance outcome PO2, and the accompanying acceptable outcome, are in the following terms: Additional performance outcomes and acceptable outcomes if a pre-1911 building PO2 Development ensures that the building does not lose integral components such as roof shape and pitch or verandahs that contribute to its traditional building character. AO2 Development retains the parts of the building constructed prior to 1911. [20] The appellants concede the proposed development does not comply with AO2 because the development will not retain all parts of the building constructed prior to 1911. In this regard, they concede the demolition works will involve the removal of the rear right-hand corner of the dwelling house (bathroom) and the convex roof above. It is, therefore, necessary to closely examine the requirements of PO2. [21] PO2 of the Demolition code requires the development to ensure that ‘integral components’ of the dwelling house (that contribute to its traditional building character) are not lost. Council contends the development does not comply with this requirement. Ms Buckley submitted the proposed development will not retain the following elements of the dwelling house constructed prior to 1911, namely: (a) the semi-attached kitchen; (b) the corner of the right-hand corner verandah, including the convex roof above; and (c) pre-1911 components that connect the semi-attached kitchen to the dwelling house. [22] As to (a) above, Ms Buckley submitted the semi-attached kitchen is an integral component of the dwelling house that contributes to its traditional building character. In reliance upon Mr Kennedy’s evidence, it was submitted that this integral component would be ‘lost’ for the purposes of PO2 because the relationship between the dwelling house and the kitchen would be severed, and not re- established when the structure is repositioned. 6 Ex 1.003. -- 5 of 12 -- 6 [23] It was pointed out that the kitchen in the repositioned dwelling house will be converted to a bedroom. This, it was said, would result in a different relationship to the one that exists today as between the semi-attached kitchen and the adjoining rooms. As I understood the submission, the point made was this: the existing relationship between the kitchen and the adjoining rooms would be lost in the proposed development, contrary to PO2 of the Demolition code. [24] I do not accept that the semi-attached kitchen will be lost for the purposes of PO2 of the Demolition code. The structure that contains the semi-attached kitchen will remain, albeit in a different position on the land. It is the physical structure that contributes to its traditional building character rather than: (1) the internal use of the structure as a kitchen; and (2) the relationship the kitchen has, in a proximity and use sense, with other rooms within the dwelling. [25] The internal use of the semi-attached kitchen structure, and its internal relationship to other rooms, is not, in my view, integral to the traditional building character of the dwelling house. Nor is the internal relationship, or proximity, between the kitchen and adjoining rooms discernible from Brook Street.7 These points are, in my view, strong indicators that the partial demolition, rotation and repositioning of the dwelling house will not offend PO2 of the Demolition code. [26] As to (b) and (c) in paragraph [21], I accept the proposed development will not retain the right corner verandah and convex roof above. The demolition works also involve the removal of pre-1911 components that connect the semi-attached kitchen to the dwelling. I am satisfied, having regard to visual aids before the court,8 that these works will not result in the loss of an integral component of the dwelling house that contributes to its traditional building character. Rather, the visual aids confirm: (1) that the loss of part of the verandah, and its roof will not change the roof shape, or verandah structure, in any material way;9 and (2) the area where the works are proposed will be relocated to the rear of the dwelling house, which will not be visible from Brook Street. Once these matters are appreciated, it is not difficult to conclude there will be no meaningful loss, or diminution, of the traditional building character of the dwelling house by reason of the proposed partial demolition, reorientation and repositioning. [27] The same can also be said for the loss of any structure connecting the semi-attached kitchen to the dwelling. The loss will not be discernible. It is not an integral component of the dwelling that contributes to its traditional character. Indeed, it cannot be seen from Brooks Street and makes no appreciable contribution to its traditional character. As a consequence, I am comfortably satisfied the loss of any connecting structure will result in no meaningful loss of traditional building character, which is confirmed by the visual aids before the court. [28] I am satisfied the proposed development complies with PO2 of the Demolition code. 7 Ex. 2.003, cover sheet photo. 8 Photographs and development plans (including street elevations), appreciated with the benefit of a site inspection. 9 As confirmed by the Street view elevations at Ex. 4.001, p,24. -- 6 of 12 -- 7 [29] Performance outcome PO10 of the Demolition code relevantly provides: Section C – Repositioning or raising a building or structure (not including any building work to enclose underneath a building) if any part of the building or structure was substantially constructed for residential purposes in 1946 or earlier PO10 Development ensures that the siting and orientation of a residential building on a lot: a. is complimentary to the traditional setting of a dwelling house constructed in 1946 or earlier nearby in the street; b. does not diminish the streetscape character components of the original street to which the building was orientated within the Traditional building character overlay; c. does not result in a building being isolated from a streetscape within the Traditional building character overlay or a streetscape that exhibits traditional character. AO.10.1 Development involving a residential building remains orientated to face its existing street frontage in a manner consistent with the dwelling house constructed in 1946 or earlier on adjoining lots. AO10.2 Development retains the residential building within 20 percent of the front setback of a neighbouring dwelling house constructed in 1946 or earlier. [30] The appellants concede the development does not comply with AO10.2 and, as a consequence, invited the court to examine compliance with PO10. [31] As a starting point, the Heritage architects agreed that PO10(c) was not offended by the proposed development. They agreed the development will not result in the dwelling house being isolated from the streetscape, which exhibits traditional character. This point of agreement is understandable given the proposed development involves moving the dwelling house closer to the front boundary. The significant reduction to the front setback will, in my view, be a positive outcome for the traditional character of the street. The dwelling house, having a smaller setback to the street, in combination with the removal of the post-1946 carport structure, will be more visually prominent,10 reinforcing the traditional character of Brook Street. It will make a contribution that is fairly characterised as consistent with, and complementary to, the existing streetscape, which exhibits traditional character. 10 See attachment ‘A’. -- 7 of 12 -- 8 [32] This leaves Performance Outcome PO10(a) and (b) for consideration. These provisions call for the ‘siting’ and ‘orientation’ of the rotated and repositioned dwelling house to be examined, along with the consequential impact of these matters on ‘traditional setting’ and ‘streetscape character’. [33] With respect to PO10(a), the question to be examined can be stated as: does the development ensure the siting and orientation of the building is complementary to the traditional setting of a dwelling house constructed in 1946, or earlier, nearby in the street? [34] This question, in my view, is answered in the affirmative. A useful starting point in this regard is s 2.5 of the Traditional building character planning scheme policy, which confirms that the setting of new buildings can detract from the character of a street if, inter alia, the setbacks conflict with traditional settings. Here, I am satisfied the visual aids, considered with the benefit of Mr Elliott’s evidence, demonstrate the dwelling house will be sited in a way that is complementary to the traditional setting of dwelling houses constructed in 1946, or earlier, in Brook Street. [35] The evidence confirms the dwelling house will be repositioned so that it is closer to the front boundary of the land. The setback distance to the front boundary will be in the order of 4 metres. As aerial photography and the site inspection confirmed, this setback distance will be complementary to the setbacks of the adjoining traditional character dwellings.11 It will also complement the front setback distances that can be identified in Brook Street for traditional building character. The front setback distances for buildings of this character vary in dimension, and as I have said, are not uniform12. The proposed development, and the proposed front setback, will fit comfortably in the existing streetscape, and complement the traditional setting of pre-1946 houses in Brook Street. [36] The orientation of the dwelling house to Brook Street will also be complementary to the traditional setting of dwelling houses constructed in 1946, or earlier, nearby in the street. The orientation will result in the dwelling house presenting a new ‘front of house’ to the street.13 It is not the same design of house that presents to the street at present. It will have the appearance of an asymmetrical bungalow. This is still traditional building character of value and similar to existing dwellings in Brook Street.14 The dwelling house will complement these existing dwellings, both in terms of appearance and orientation to Brook Street. [37] In the context of PO10(a) of the Demolition code, it was Council’s case that two matters establish the rotated and repositioned dwelling house will detract from the traditional setting of Brook Street, namely: (1) the dwelling house will be atypical - there are no other asymmetrical bungalows with a feature chimney at the front of the property in the street; and (2) the dwelling house will present as a non-authentic asymmetrical bungalow. I do not accept these points establish non-compliance with PO10(a). 11 Ex. 2.001, Figure 9. 12 Ex. 2.001, Figure 4 and 8 and Ex. 2.003, Figure 3 and Mr Kennedy’s ‘Brook St – Streetscape info’. 13 Ex. 4.001, p.24. 14 Ex. 2.003, Figure 9, 10, 11, 12, 20, 25, 27, 28, 29 and 30. -- 8 of 12 -- 9 [38] As a matter of impression, the design of the rotated and repositioned dwelling house will have the appearance of a traditional character dwelling. It will contribute positively to the traditional setting of Brook Street. That the contribution will be a positive one is confirmed having regard to Exhibit 2.003, which is a report prepared by Mr Elliott. Within that report, Mr Elliott included a photograph of each dwelling in the street. The photographs, taken together with the proposed development plans,15 comfortably satisfy me the development will, in terms of its siting and orientation, complement the traditional setting of Brook Street. It will do so particularly having regard to the matters discussed in paragraphs [31], [35] and [36], which demonstrate compliance with PO10(a) of the Demolition code. [39] Turning to PO10(b), I am satisfied the development complies with this provision of the Demolition code. [40] The traditional building character of Brook Street is mixed.16 It comprises dwellings constructed prior to 1911. It also comprises dwellings constructed between 1911 and 1946. The traditional character of the street is, as a consequence of these facts, a mix of traditional character elements, expressing varying degrees of ‘intactness’. In this context, the rotated and repositioned dwelling house will not diminish the streetscape character components of Brook Street. The visual aids before the court confirm the dwelling house will complement the existing mixed traditional character, and traditional building character, evident in the streetscape.17 [41] For the reasons given in paragraphs [31] to [40], I am satisfied the development complies with Performance outcome PO10 of the Demolition code. [42] Council also alleges the proposed development does not comply with a number of overall outcomes in the Demolition code.18 The overall outcomes put in issue by Council are in the following terms: “2. The purpose of the code will be achieved through the following overall outcomes: (a) Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to giving the areas in the Traditional building character overlay their traditional character and traditional building character. (b) Development protects buildings constructed prior to 1911 by limiting demolition or removal to only where a building is structurally unsound. … (d) Development protects a residential building or a part of a building constructed in 1946 or earlier where it forms a part of a character streetscape comprising residential dwellings 15 In particular, Ex. 4.001, p.24. 16 Ex. 2.003, Figures 6 to 42. 17 Comparing Ex. 4.001, p.24 with Ex. 2.003, Figures 6 to 41. 18 Reference was also made to an Overall outcome in the Low-medium density residential zone code, namely Overall outcome (4)(e). This overall outcome overlaps with Overall outcome (2)(h) above in that they both seek retention of existing dwellings that exhibit traditional character in the Traditional building character overlay. As a consequence of this overlap, no new issue is raised by Overall outcome (4)(e) that warrants separate consideration. -- 9 of 12 -- 10 constructed in 1946 or earlier nearby in the street within the Traditional building character overlay. … (h) Development ensures that, in conjunction with the traditional building character (design) overlay code, residential buildings constructed in 1946 or earlier in the Traditional building character overlay are retained and redevelopment complements the traditional building character of buildings constructed in 1946 or earlier.” [43] Having regard to Overall outcome 2(a) above, I am satisfied the development will protect the dwelling house so that it continues to be characterised as traditional building character and makes a positive contribution to the traditional character of Brook Street. That contribution will, in my view, represent an improvement in comparison to existing circumstances because: (1) the existing post-1946 carport will be removed, thereby increasing the visibility of the dwelling house from the street;19 and (2) the dwelling house will be relocated closer to the front boundary of the land, more in keeping with, and complementary to, the existing character of Brook Street. These same factors lead me to conclude that the development will protect the dwelling house in a manner that ensures it will continue to form part of, and contribute to, the character streetscape of Brook Street as envisaged by Overall outcomes 2(d) and 2(h).20 [44] Overall outcome 2(b) is in a different category. It is expressed in inflexible terms. It requires development to protect buildings constructed prior to 1911. It purports to limit demolition of pre-1911 structures to those that are structurally unsound. The extent to which the provision appears inflexible is clear when contrasted with PO2 of the same code, which deals with pre-1911 structures, but does not speak in the same constrained terms as the Overall outcome. [45] Given paragraphs [10](e) and [20], it is readily concluded the proposed development does not comply with Overall outcome (2)(b) of the Demolition code. The development involves the partial demolition of a structurally sound dwelling house built prior to 1911. That the development involves such works was conceded by the appellants in the context of AO2 of the same code. [46] That non-compliance has been established with Overall outcome (2)(b) of the Demolition code does not mean the development application must be refused. This was common ground between the parties. Both Mr Purcell and Ms Buckley submitted the court retains a discretion to approve the application even in circumstances where non-compliance arises with an assessment benchmark.21 [47] On balance, I am satisfied the exercise of the discretion favours approval of the appellants’ development application. This is so for the following reasons. The reasons arise out of the assessment of the appellants’ application against City Plan 2014.22 19 As is confirmed by the street view elevations in Ex. 4.001, p.24. 20 Comparing cover sheet of Ex 2.003 with Ex. 4.001, p.24. 21 s 60(2)(b), PA and Brisbane City Council v Klinkert [2020] QPELR 579. 22 See ss 45(3) and 59(3) of the PA. -- 10 of 12 -- 11 [48] First, the appellants have demonstrated compliance with all relevant provisions of the Demolition code, save for Overall outcome (2)(b). In demonstrating compliance in this regard, the appellants have established that the partial demolition, rotation and repositioning of the dwelling house will complement the traditional character of Brook Street. It has also been established that the development will not result in any meaningful loss of traditional building character. [49] Second, the non-compliance with Overall outcome 2(b) is not attended by any appreciable adverse planning consequence. This is because the components of the pre-1911 dwelling house to be demolished are not ‘integral’ to its traditional character. Partial demolition will not, as a consequence, diminish the traditional character of the dwelling house. Nor will the partial demolition diminish the contribution the dwelling house makes to the traditional character of Brook Street. [50] Third, the demolition of a small number of components of the dwelling house constructed prior to 1911 will facilitate its relocation closer to the street. This will result in two identifiable benefits. The first is identified in paragraphs [31] and [43], namely that the development will, if approved, represent an improvement to the traditional character of Brook Street. I am satisfied this improvement is not diminished by reason the dwelling house will present as an asymmetrical bungalow, rather than a late-colonial era home. Both architectural typologies constitute traditional building character and contribute to the traditional character of Brook Street. The second benefit is one identified by Mr Elliot. He observed that the relocation of the dwelling house will facilitate the redevelopment of the land for uses encouraged by City Plan 2014. I agree this is a benefit and speaks in favour of approval. [51] Accordingly, I am satisfied the appellants have established the appeal should be upheld.23 [52] I will adjourn the appeal to 5 February 2021. I intend to make final orders on that date bringing the appeal to an end. 23 s 45(1)(a) of the Planning & Environment Court Act 2016. -- 11 of 12 -- 12 Attachment ‘A’ Exhibit 2.003, Figure 32 Exhibit 4.001, Figure 4 on page 24. -- 12 of 12 --