Di Carlo v Brisbane City Council [2019] QPEC 4 [2019] QPELR 548

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Di Carlo v Brisbane City Council [2019] QPEC 4 PARTIES: ALFIO DI CARLO (Appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 2562 of 2018 DIVISION: Planning and Environment Court, Brisbane PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 5 February 2019, ex tempore DELIVERED AT: Brisbane HEARING DATE: 4-5 February 2018 JUDGE: Everson DCJ ORDER: The appeal is allowed subject to the imposition of lawful conditions CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of development application for demolition of a dwelling house constructed in 1946 or earlier ASSESSMENT - compliance with the planning scheme – exercise of discretion pursuant to s 60(2)(b) of the Planning Act 2016 (Qld) LEGISLATION: Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) CASES: Klinkert v Brisbane City Council [2018] QPEC 30 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 COUNSEL: D Gore QC and M Batty for the appellant N Loos for the respondent SOLICITORS: Broadley Rees Hogan for the appellant Brisbane City Legal Practice for the respondent -- 1 of 7 -- 2 Introduction [1] This is an appeal against the decision of the respondent to refuse a development application seeking the demolition of a dwelling house constructed in 1946 or earlier (“the house”) at 42 Quay Street Bulimba (“the land”). The House and the Surrounding Area [2] The house was constructed in 1937. The land has an area of 1012 m 2 and contains no significant vegetation. It is within the Traditional building character overlay map (“the map”) in the respondent’s 2014 planning scheme (“the planning scheme”). It is also mapped within the Local character significance sub-category of the map. [3] The house is on the western side of Quay Street, overlooking the Brisbane River, which is at the rear boundary of the land. The house is set approximately 22 metres back from the street frontage. While there are several notable houses exhibiting traditional building character, as that term is defined in the planning scheme, on the opposite side of Quay Street in the vicinity of the house, there is only one other that could be described in these terms on the same side. It is separated by several significant modern houses from the land. [4] Two heritage architects gave evidence at the hearing of the appeal, Mr Elliott on behalf of the appellant and Mr Kennedy on behalf of the respondent. Ultimately, they both concluded that house represented traditional building character, as defined in the planning scheme. In this regard, I also endorse the following observations of Mr Elliott in his statement of evidence: “While the subject house is acknowledged as having been constructed on its site prior to the end of 1946; more specifically c. 1937, it is nevertheless suggested that the rudimentary and modest detailing of the Conventional house style could also be mistaken for a house constructed during the immediate post-World War II period.”1 [5] The period referred to above is recorded my Mr Elliott as the so-called Austerity period of residential construction in Australia, owing to shortages of labour and materials. Suffice to say, on the evidence before me, I found the house lacking in aesthetic appeal and architecturally unremarkable. So isolated was it from other houses exhibiting any traditional building character in the street, that Mr Kennedy conceded that if you were on the same side of Quay Street, you could not really see it unless you were right in front of it because of how far it is set back and the “monster houses”, large modern buildings, on either side of it.2 The Assessment Regime [6] The statutory assessment regime is pursuant to the Planning Act 2016 (“PA”) and the Planning and Environment Court Act 2016 (“PECA”). The appeal is by way of a hearing anew and the appellant bears the onus of establishing that the appeal should be allowed. 1 Exhibit 8, para 8. 2 T1 – 65 ll 20 - 30 -- 2 of 7 -- 3 [7] As the development application giving to the appeal was code assessable, s 45 of the PA states that the assessment must only be carried out against, relevantly, the assessment benchmarks which, in the circumstances before me, are found in the planning scheme. Unlike impact assessment, the court cannot have regard to relevant matters as defined in s 45(5) of the PA. Pursuant to s 59(3) of the PA, the decision of the court must be based on an assessment against the assessment benchmarks, subject to s 60, with relevantly provides: “(2) To the extent the application involves development that requires code assessment… the assessment manager, after carrying out the assessment – (a) must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and (b) may decide to approve the application even if the development does not comply with some of the assessment benchmarks; …” [8] As Williamson QC DCJ observed in Klinkert v Brisbane City Council:3 “The discretion is expressed in permissive (‘may’) and broad terms. It is subject to an important constraint, namely the constraint expressed in s 59(3) of the PA requiring the decision to be based on an assessment carried out pursuant to earlier provisions of the Act, which in this case, includes, inter alia, s 45.” The Relevant Assessment Benchmarks [9] So far as this appeal is concerned, the following parts of the planning scheme describe the assessment benchmarks, which remain in issue: “5.3.3 Determining the requirements for accepted development and assessment benchmarks and other matters for assessable development … (4) Code assessable development: (a) is to be assessed against all the assessment benchmarks identified in the assessment benchmarks column; … (c) that complies with the purpose, overall outcomes and performance outcomes or acceptable outcomes of the code, complies with the code; … 8.2.21 Traditional building character (demolition) overlay code 8.2.21.1 Application 3 [2018] QPEC 30 at [102] -- 3 of 7 -- 4 … (2) Land in the Traditional building character overlay is defined on the Traditional building character overlay map and is included in the following sub-categories: … (b) local character significance sub-category … 8.2.21.2 Purpose … (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. … (d) Development protects a residential building or part of a building constructed in 1946 or earlier where it forms part of a character streetscape comprising residential dwellings 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 development complements the Traditional building character buildings constructed in 1946 or earlier. … Table 8.2.21.3 – Performance outcomes and acceptable outcomes … Section B—Demolition or removal of a building constructed in 1946 or earlier General performance outcomes and acceptable outcomes if not in the Latrobe and Given Terraces neighbourhood plan area or the City west neighbourhood plan area PO5 Development involves a building which: (a) does not represent traditional building character; or (b) is not capable of structural repair; or (c) does not contribute to the traditional building character of that part of the street within the Traditional building character overlay. 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 (b) an engineering report prepared by a Registered Professional Engineer Queensland which certifies that the building is structurally unsound and not reasonably capable of being made structurally sound; or -- 4 of 7 -- 5 (c) if demolished will not result in the loss of traditional building character; or (d) is in a section of the street within the Traditional building character overlay that has no traditional character. Additional performance outcomes and acceptable outcomes if in the Local character significance sub-category PO7 Development involves a building which: (a) does not represent traditional building character; or (b) is not capable of structural repair; or (c) is not a building constructed in 1946 or earlier. AO7.1 Development involves a building which has been substantially and irreversibly altered or does not have the appearance of being constructed in 1946 or earlier; … The Disputed Issues which Remain for Determination [10] The issues in dispute between the parties narrowed considerably during the course of the hearing of the appeal. The respondent now concedes that the appellant has demonstrated compliance with PO5(c) and AO5(d) of the Traditional building character (demolition) overlay code (“the Demolition Code”) but asserts that PO7 is a cumulative requirement that cannot be complied with given the policy decision of the respondent to map the land in the Local character significance sub-category. Because the house exhibits traditional building character and is structurally sound, like all such houses in this category, it is submitted that it cannot be demolished. Conversely, the appellant seeks to invoke the exercise of my discretion pursuant to s 60(2)(b) of the PA given the uncontested position of the parties with respect to PO5(c) and AO5(d) of the Demolition Code. Resolving the Issues which Remain [11] As a starting point, it is appropriate to have regard to the applicable principles for the construction of planning documents which were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council: “[52] The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said: “[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” … -- 5 of 7 -- 6 [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’ … [56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical and read as a whole and as intending to achieve balance between outcomes.” 4 [12] Returning to the planning scheme, s 5.3.3 states that code assessable development that complies with the purpose, overall outcomes and performance outcomes or acceptable outcomes of the code complies with the code. When regard is had to the Demolition Code itself, it is clear from a reading of the overall outcomes quoted above that the relevant focus is upon protecting residential buildings constructed in 1946 or earlier which give the buildings their traditional building character and there is a particular focus on protecting such a building or a part of a building which forms part of a character streetscape of similar buildings. It is true that pursuant to s 2(h) there is a more general statement, but this general statement needs to be read in the context of the earlier provisions having regard to the principles set out above in Zappala. Similarly, the factual matrix which I have noted involves the uncontested position of the parties that the house does not contribute to the traditional building character of the part of the street in which it is situated and furthermore is in a section of the street which has no traditional character, is relevant to the exercise of any discretion invoked pursuant to s 60(2)(b) of the PA. [13] The sole basis on which it is submitted to me that PO7 should nonetheless override PO5 on the facts before me, is because the respondent has made a policy decision to protect every single building exhibiting traditional building character constructed in 1946 or earlier within the broad suburban designation in Bulimba of the Local character significance sub-category in the mapping in the planning scheme. Given the lack of architectural merit exhibited by the house as disclosed in the evidence of Mr Elliott and as found by me above, the compliance with PO5(c) and furthermore, AO5(d), I can discern no meritorious planning basis for the application of PO7 to provide a blanket prohibition on the demolition of the house. I therefore am of the view that in this context it is appropriate to approve the application the subject of this appeal notwithstanding the failure of the appellant to demonstrate compliance with PO7. 4 [2014] QPELR 686 at 698 [52] -- 6 of 7 -- 7 Conclusion [14] In circumstances where the respondent can point to no distinct merit in preserving the house in the context of the blanket mapping of it which enlivens PO7 of the Demolition Code, I exercise my discretion pursuant to s 60(2)(b) of the PA and allow the appeal notwithstanding the failure of the appellant to demonstrate compliance with PO7 of the Demolition Code. -- 7 of 7 --