Blu Con Pty Ltd v Brisbane City Council [2020] QPEC 32 [2021] QPELR 415

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Blu Con Pty Ltd v Brisbane City Council [2020] QPEC 32 PARTIES: BLUE CON PTY LTD (ACN 607 921 086) (Appellant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 3707 of 2019 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 19 June 2020 DELIVERED AT: Brisbane HEARING DATE: 15 – 17 June 2020 JUDGES: Everson DCJ ORDER: Appeal is dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for partial demolition, extension of and clearing of vegetation on a local heritage place ASSESSMENT – compliance with the planning scheme – whether the proposed development complies with the planning scheme – whether the proposed development complies with the strategic framework – whether the proposed development complies with the heritage overlay code LEGISLATION Planning Act 2016 Planning and Environment Court Act 2016 CASES Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46 COUNSEL: D Whitehouse for the appellant JG Lyons for the respondent SOLICITORS: Mahoneys for the appellant City Legal for the respondent -- 1 of 12 -- Introduction [1] This is an appeal against the refusal by the respondent of a development application for a development permit for partial demolition and extension of, and clearing of vegetation on a local heritage place (“the proposed development”) in respect of Lots 82, 83 and 84 on RP12609 located at 23 Harrison Street, Bulimba (“the site”). The house on the site is called Mount Lang. [2] The site is included in the Heritage overlay map in Brisbane City Plan 2014 (“the planning scheme”). It is identified as a place of local heritage significance having regard to two criteria, Criterion A and Criterion H, pursuant to Heritage planning scheme policy contained in the planning scheme.1 [3] It has been identified as a local heritage place since 1 January 2004.2 The appellant became the registered proprietor of the site on 10 April 2019.3 The Heritage Citation [4] The respondent’s Heritage Citation documents the cultural heritage values of the site pursuant to the Heritage planning scheme policy of the planning scheme.4 It is, relevantly, in the following terms: “Key Details Addresses At 23 Harrison Street, Bulimba, Queensland 4171 Type of place House Period Interwar 1919-1939 Style Bungalow … Key dates Local Heritage Place Since – 1 January 2004 … … … People/associations Alfred Harrison (Occupant) … Mount Lang was constructed circa 1920 for Alfred Harrison and his wife Ellen, nee Johnston. Alfred and Ellen were both were [sic] from Bulimba pioneering families. The Harrisons’ new house was in Main Street, which was renamed Harrison Street for the family circa 1927. 1 Exhibit 4.43, para 1.3. 2 Exhibit 9.55. 3 Exhibit 1.14. 4 Exhibit 10.56, pp 205-208. -- 2 of 12 -- 2 Harrison, a carrier, customs agent and alderman, was Chairman of the Balmoral Shire Council. Mrs Harrison was an active member of several committees, including the Queensland Women’s Electoral League, and hosted functions at Mount Lang. The family retained the property until 1954. History In 1848 the township of Bulimba was surveyed with 14 country lots being offered for sale as farms. … Alfred Harrison acquired resubs 82 to 86 in December 1914, fronting what was then called Main Street. About 1926, not long after the formation of greater Brisbane, this road was re-named Harrison Street after the owner of the house on the hill. He built his home, Mt Lang, in about 1920 and first appears in the Post Office Directory of 1921. … Alfred Harrison, a carrier and customs agent, was very involved in his local community’s affairs. In the early 1920s he was President of the Local Show Committee and Bowling Club. He was the Chairman of the Balmoral Shire Council 1916-17 and from 1920 to the establishment of Greater Brisbane and he was also the districts [sic] first BCC Alderman serving until 1928. … Harrison was the first Chairman of the Balmoral and Coorparoo Joint Electric Supply Board which was established in 1920. He played an important part in the introduction of electricity to these areas. … Description Mount Lang is a high set timer framed symmetrical fronted interwar residence. Located at the elevated end of Harrison Street, the building is set back from the street alignment and is positioned almost centrally on the 48 perch allotment. … Apart from minor alterations, the building in its original condition and is a rare example of an intact early Interwar residence. The front timber picket fence with its portal entry is in keeping with the style of building. Statement of significance Relevant assessment criteria … It is significant because: -- 3 of 12 -- 3 Historical CRITERION A The place is important in demonstrating the evolution or pattern of the city’s or local area’s history and it demonstrates the increased residential growth of Bulimba in the interwar period. Historical association CRITERION H The place has a special association with the life or work of a particular person, group or organisation of importance in the city’s or local area’s history for its connection with local figure Alfred Harrison, for whom Harrison Street is named.”5 The proposed development [5] The scope of the proposed development is summarised in the joint report of heritage experts in the following terms: “The proposal includes… (a) Relocation of Mt Lang forward by 5.22m so that it is 6.0m from the front boundary, and sideways so it no longer straddles all three lots and is wholly contained within lots 83 & 84. (b) Demolition of parts of Mt Lang including: • the existing stumps and battens: • the laundry underneath he house: • the rear stairs and landing: • the front stairs and landing: • part of the lounge room floor for a new stairwell: • the internal wall between the kitchen and bedroom: • the internal wall between the kitchen and bathroom: • the pantry, toilet and bathroom on the southern side verandah: • the verandah enclosures on the southern and northern side verandahs, and • partial removal of the dining room windows. (c) Raising Mt Lang by 1.215m and constructing new living areas, kitchen and guest bedroom underneath. (d) Installing a new internal stair to connect the underneath with the top floor. (e) Reconstructing the front stairs with additional treads and risers. 5 Exhibit 9.55, p 1-4. -- 4 of 12 -- 4 (f) Converting the existing kitchen into an ensuite. (g) Constructing a new walk-in robe in the location of the existing pantry/bathroom. (h) Installing new French light doors in the master bedroom and new walk-in robe. (i) Converting the existing dining room into a bedroom and bathroom, and repositioning one set of windows on the rear elevation. (j) Removing all the existing vegetation on Mt Lang except a mango tree located at the rear of the property. (k) Providing new landscaping to the whole of Mt Lang. (l) Constructing a new garage at the rear of the Mt Lang, and (m) Constructing a new pool, outdoor area and pool house at the rear of the relocated house.”6 It is now proposed that the front stairs be refurbished and retained,7 but with adjacent modern planter boxes.8 [6] The only vegetation which assumed significance in the course of the hearing was a row of Cocos palms along the northern boundary of the site.9 I accept the combination of aerial photography in Exhibit 4.43, shown in figures 5, 6 and 7 and a subsequent photograph of the front of the house from the 1950s or early 1960s which shows mature Cocos palms in this location, demonstrates that these trees were planted contemporaneously with the construction of the house.10 The statutory assessment framework [7] Pursuant to the Planning and Environment Court Act 2016, the appeal is by way of hearing anew,11 and the appellant must establish that the appeal should be allowed.12 [8] As the proposed development was impact assessable, s 45 of the Planning Act 2016 provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances of the appeal before me, are the relevant provisions of the planning 6 Exhibit 2.41, para 7. 7 Exhibit 1.3, p 18. 8 Ibid, p 15. 9 Exhibit 6.52, para 3.5.1. 10 Exhibit 4.43, paras 66-74. 11 Planning and Environment Court Act 2016 (Qld) s 43. 12 Ibid s 45(1)(a). -- 5 of 12 -- 5 scheme.13 The assessment may also be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.14 No relevant matters have been identified for my consideration in the determination of this appeal. [9] The proper approach to non-compliance with the planning scheme in the decision- making process was recently explained by Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor in the following terms: “Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice. Not every non- compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.”15 The relevant assessment benchmarks [10] The planning scheme adopts a consistent approach to the protection of locations in the city which have cultural heritage significance to a broad range of groups and individuals.16 In the Strategic Plan, the following specific outcomes and land use strategies are identified: SO19 Brisbane’s important buildings and places that are important to the city’s history are protected. L19.1 Heritage places and precincts of important local, city-wide or State cultural heritage significance or special significance to Aboriginal people are identified and protected in accordance with the principles of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance. L19.2 The adaptation or re-use of heritage places for purposes that retain the significance of the place is supported. 13 Planning Act 2016 (Qld) s 45(5)(a)(i). 14 Ibid s 45(5)(b). 15 [2019] QPEC 46 at [22]. 16 Planning scheme s 3.4.1(1)(c); Exhibit 10.56, p 40. -- 6 of 12 -- 6 L19.3 Development in or adjacent to identified heritage places or precincts protects the cultural heritage significance of the place or precincts. [11] The Heritage overlay code applies to assessing the proposed development. It is stated that the purpose of the code will be achieved through inter alia the following overall outcome: “Development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values.”17 [12] The following performance outcomes and acceptable outcomes are of particular relevance: Table 8.2.12.3 – Performance outcomes and acceptable outcomes Performance outcomes Acceptable outcomes Section A – If in the Local heritage place sub-category PO1 Development provides for the future protection of the heritage place and does not damage or diminish its cultural heritage significance. Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Australia ICOMOS Burra Charter. AO1 No acceptable outcome is prescribed. PO2 Development is based on and takes account of all aspects of the cultural significance of the heritage place. Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter - Cultural Significance. AO2 No acceptable outcome is prescribed. 17 Planning scheme s 8.2.12.2(2)(a); Exhibit 10.56, p 134. -- 7 of 12 -- 7 PO3 Development protects the fabric and setting of the heritage place while providing for its use, interpretation and management. Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal has been prepared in accordance with the Guidelines to the Burra Charter - Conservation Policy. AO3 No acceptable outcome is prescribed. PO4 Development is based on the issues relevant to the conservation of the heritage place. Note—Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter - Procedures for Undertaking Studies and Reports. AO4 No acceptable outcome is prescribed.18 [13] The preamble to the Burra Charter contains the following statement: “Why conserve? Places of cultural significance enrich people’s lives, often providing a deep and inspirational sense of connection to community and landscape, to the past and to lived experiences. They are historical records that are important expressions of Australian identity and experience. Places of cultural significance reflect the diversity of our communities, telling us about who we are and the past that has formed us and the Australian landscape. They are irreplaceable and precious. These places of cultural significance must be conserved for present and future generations in accordance with the principle of inter- generational equity. The Burra Charter advocates a cautious approach to change: do as much as necessary to care for the place and to make it useable, but otherwise change it as little as possible so that its cultural significance is retained.”19 [14] The term “Cultural significance” is defined particularly broadly, as are the terms “Fabric” and “Setting”.20 Article 3 of the Burra Charter states that it requires a cautious approach to conservation of “changing as much as necessary but as little as possible”.21 18 Planning scheme s 8.2.12.2(2)(a); Exhibit 10.56, p 134. 19 Exhibit 8.54, p 1. 20 Ibid, pp 2-3. 21 Ibid, p 3. -- 8 of 12 -- 8 [15] The Bulimba district neighbourhood plan code also applies to the site, and it includes an overall outcome which seeks to protect the history of the neighbourhood plan area, in particular seeking that “places of cultural heritage significance are conserved to preserve the area’s identity”.22 The disputed issues [16] The disputed issues are identified as being whether the proposed development complies with the assessment benchmarks identified above.23 As noted earlier, no relevant matters have been identified for my consideration. Discussion [17] The listing of the house as a Local heritage place affords it greater protection than it would otherwise have, pursuant to the Traditional building character (demolition) overlay code in the planning scheme, in circumstances where it was constructed in 1946 or earlier. It is afforded site specific protection because of its importance. It is necessary to look at the Heritage Citation in order to ascertain the extent of the protection conferred. In this regard I note that while it applies to the entirety of the site, the type of place is described as “House”. There is no reference to any part of the garden and much less to any particular vegetation within it. Accordingly, although I accept that the prominent row of Cocos palms on the northern boundary of the site are both contemporaneous and representative of a popular garden feature at the time the house was constructed, I am unable to conclude that it is the intention of the Heritage Citation that they are included in the listing of the site. Rather, the listing addresses both the house and its location within the site. [18] In terms of the interrelationship between the criteria identified in the Heritage Citation which justify the listing of the site and the proposed development, I was greatly assisted by the evidence of Dr Blake, a highly qualified historian, who relevantly stated that: (i) “…in reference to Criterion A, Mt Lang demonstrates this criterion as a large timber house built in 1920 and located on three lots, and with a substantial setback from the street. … 22 Planning scheme s 7.2.2.4.2; Exhibit 10.56, p 105. 23 Exhibit 1.60. -- 9 of 12 -- 9 (ii) …this was one of the first houses in Bulimba to be built over three lots and was part of the pattern of construction of more substantial houses in the interwar period. … (iii) …Mt Lang, as one of the first of this new ‘type’ of house in Bulimba, exemplifies the residential growth during the interwar period. The proposed changes to the place by relocating the house to two lots, raising the house 1.2m, building in below, and shifting the house closer to the street alignment, will result in Mt Lang no longer demonstrating the key attributes of an interwar high-set house, symmetrically located on the block, well set-back from the street, and surrounded by spacious lawn and gardens on both sides. (iv) …while the house itself was itself not exceptionally grand, centrally locating the house on three lots with a generous area of lawn and gardens, as well as the set-back from the street, accentuated the grandeur of Mt Lang. (v) …the proposed relocation of the house to two lots, reducing the setback from the street, raising the house, and the extensive internal alterations will significantly diminish the significance of the place. Mt Lang is a very intact residence and demonstrates how Alfred Harrison and his family lived in Mt Lang. (vi) …the proposed changes will result in a place that has little resemblance to the current Mt Lang. … (vii) …in reference to Criterion H the association of Mt Lang with Alfred Harrison is evident in the place. … (viii) …Alfred Harrison was a prominent identity in Bulimba during the 1920s and the 1930s. Mt Lang demonstrates his conscious efforts to construct a house that accorded with his… standing in the community. … (ix) …Harrison chose to build on one of the highest parts in Bulimba, providing him with commanding views to the city and north to the Brisbane River and beyond. Also, from this vantage point he was able to survey a significant part of the suburb.”24 [19] I also found the evidence of Mr Kennedy, an experienced heritage architect, persuasive. As to the impacts of the proposed development on the cultural heritage values identified pursuant to Criterion A in the Heritage Citation he stated: “…I believe the proposal to relocate the house over just two lots will destroy its original three lot garden setting and therefore 24 Exhibit 2.41, pp 25-27. -- 10 of 12 -- 10 substantially diminish the ability of Mt Lang to accurately demonstrate the residential growth of Bulimba in the interwar period.”25 As for the impacts on the cultural heritage values identified pursuant to Criterion H he observed: “The proposed alterations and relocation of the house would significantly alter its visual and physical relationship with Harrison Street, and diminish its ability to demonstrate its original connection with Alfred Harrison who was an important person in Bulimba’s history.”26 [20] Mr Kennedy was dismissive of the overall impact of the proposed development: “The proposal seems to have given little regard to conserving Mt Lang other than retaining its overall from – albeit it in a much-altered state. The main aim of the proposal seems to render lot [82] vacant and remodel the existing house into a new layout the applicant considers fit for modern living at ground level. The proposal does not conserve several important aspects of Mt Lang and erodes rather than retains its cultural heritage significance.”27 [21] I did not find the evidence called by the appellant at all persuasive. The heritage expert Mr Gall has questionable formal qualifications,28 and was dismissive of Dr Blake and Mr Kennedy and their approach to the importance of the Heritage Citation for the site.29 I found his approach facile and lacking gravitas.30 Ms Metcher, a landscape architect, was prepared to make up facts when the objective evidence did not support her position.31 [22] On the evidence I accept, there has been a failure to comply with SO19. In terms of L19.1, the proposed development shows little respect for the cautious approach to change urged by the Burra Charter. It follows, from the evidence I accept, there is also non-compliance with L19.2 and L19.3. In terms of the identified provisions of the Heritage overlay code, it follows that there is non-compliance with the identified overall outcome as the proposed development detracts from the cultural heritage 25 Ibid, p 14. 26 Exhibit 2.41, pp 14-15. 27 Ibid, p 21. 28 T2–49 – T2–55. He even represented himself as having a degree (with honours) from the University of Queensland which he ultimately conceded has never been conferred (T2–50). 29 Exhibit 5.44, paras 2.1.3 and 3.4.1. 30 See Exhibit 2.41, para 29.1; Exhibit 3.42, para 88; Exhibit 5.44, paras 3.1.1-3.1.3. 31 T2–17, ll 5–15. -- 11 of 12 -- 11 significance of the site and a corresponding failure to comply with PO1, PO2, PO3 and PO4 thereof. There is also a failure to comply with the overall outcome of the Bulimba district neighbourhood plan code which seeks to conserve places of cultural heritage significance. [23] It is the extent of what is proposed which offends the assessment benchmarks referred to above. It is simply not appropriate to move the house from its centrally located position on the site, which is important to its listing from both the perspective of Criterion A and Criterion H in the Heritage Citation, with a view to creating an extra lot for development to the north and additional space for redevelopment of the site at the rear. The proposed treatment to the front of the house is unsympathetic to its significance from a local heritage perspective. It is not appropriate to raise the house at the front and present to the street as a two storey dwelling with discordant architectural features such as planter boxes. [24] However, the house is not intended to be a museum, and as Dr Blake graciously conceded there are numerous ways of redeveloping the site for comfortable contemporary residential use such as by building at the back of the house. It can be repurposed in a manner consistent with a desirable modern amenity at the same time as retaining the heritage character that is sought to be protected.32 Conclusion [25] Although I have found that the Heritage Citation does not extend to any vegetation on the site, the development application for clearing vegetation was made in the context of the proposed development and the plans which contemplated it. In the circumstances, it is appropriate to dismiss the appeal. [26] Accordingly, the appeal is dismissed. 32 T2–66, ll 35–45. -- 12 of 12 --