Beauchamp v Brisbane City Council [2018] QPEC 43 [2019] QPELR 37

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Beauchamp v Brisbane City Council [2018] QPEC 43 PARTIES: BRETT CHARLES BEAUCHAMP (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 4872/17 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 14 September 2018 DELIVERED AT: Brisbane HEARING DATE: 6, 7, 9 and 16 August 2018. JUDGE: Rackemann DCJ ORDER: Appeal against refusal of the partial demolition is dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of proposed partial demolition of pre 1947 dwelling house – whether proposed partial demolition would result in loss of integral component, whether development would result in a narrow building with a width-to-height proportion out of character – whether development would diminish traditional building form – whether development would result in a loss of traditional building character – whether compliance with relevant overall outcomes COUNSEL: M Batty for the Appellant J Ware for the Respondent SOLICITORS: Broadley Rees Hogan for the Appellant Brisbane City Legal Practice for the Respondent -- 1 of 13 -- 2 Introduction [1] This appeal is against the decision of the respondent to refuse the appellant’s application for a preliminary approval for building work for the partial demolition and extension of a pre-1947 dwelling situated in the traditional building character overlay on land located at 24-26 Wallin Street Kedron and more particularly described as lots 41 and 42 on RP 26115. The subject site is composed of two 405m2 lots which are rectangular in shape, each having a frontage to Wallin Street of approximately 10 metres. [2] The subject dwelling house currently straddles the two lots of the subject site. It is a large inter-war bungalow-style house. It was described by Mr McDonald, the expert called by the appellant, as follows:1 “A high set, timber framed detached house with a triple gabled roof form at moderate pitch and sheeted in corrugated steel. The external walls are clad in timber weatherboards with the front façade stuccoed. The building is supported on concrete stumps with timber batten infilled panels. The front of the building features a bay window. The front entry porch and left side sleepout are enclosed.” [3] The proposal is to partially demolish the dwelling in order to make it narrower to facilitate its being shifted sideways so that it is located solely on one of the two lots of the subject site. The narrowing of the building is to be achieved by demolition of a sleepout which runs down the side of the building. There are other components of the proposal, but it is the proposed demolition of the sleepout which is the matter of controversy. The assessment regime [4] The development application was lodged on or about 22 September 2017, which was after the Planning Act 2016 and the Planning and Environment Court Act 2016 had commenced. That legislation applies to the appeal. The appeal is by way of hearing anew. The appellant bears the onus. [5] As the application was code assessable assessment was required to be carried out only against assessment benchmarks in a categorising instrument for the development and 1 Exhibit 4 p 2 para 2.2. -- 2 of 13 -- 3 having regard to any matters prescribed by regulation.2 A categorising instrument relevantly includes a planning scheme.3 The case was conducted on the basis that the only planning instrument relevant to the appeal is City Plan 2014 version 7. [6] Section 5.3.3(4) of City Plan 2014 identifies the assessment benchmarks for code assessable development as being those in the assessment benchmarks column. The relevant assessment benchmarks in this case are the Character Residential Zone Code and the Traditional Building Character (Demolition) Overlay Code (the demolition code). [7] Section 5.3.3(4)(c) provides that for code assessable development, development that complies with the purpose, overall outcomes and the performance outcomes or acceptable outcomes of the code, complies with the code. Accordingly, in order to comply with the assessment benchmarks for the development, the appellant must demonstrate that the proposal complies with the purpose and overall outcomes and either the performance outcomes or acceptable outcomes for the relevant codes. [8] Pursuant to s 60(2)(a) of the Planning Act the development application must be approved to the extent the development complies with all of the assessment benchmarks for the development. Pursuant to s 60(2)(b) there is a discretion to approve the application even if the development does not comply with some of the assessment benchmarks. The appellant however, abandoned any reliance upon discretionary factors for approval in the event of non-compliance. Pursuant to s 60(2)(d), to the extent that the development does not comply with some or all of the assessment benchmarks it may be refused only if compliance cannot be achieved by imposing development conditions. It was not contended that any noncompliance could be cured by the imposition of development conditions. The case therefore turns on whether there is compliance with the assessment benchmarks. The issues [9] The issues in the appeal related to: (a) alleged non-fulfilment of AO1.1 and AO1.2 of the Demolition Code; (b) alleged conflict with PO1 of the Demolition Code; 2 Planning Act section 45(3). 3 Planning Act section 43. -- 3 of 13 -- 4 (c) the applicability of PO5 and AO5 of the Demolition Code and whether the proposal conflicts with those provisions; (d) alleged conflict with overall outcomes 2(a) and (d) of the Demolition Code; (e) alleged conflict with overall outcomes 5(c) and 6(a) of the Character Residential Zone Code. AO1.1 of the Demolition Code [10] Acceptable outcome 1.1 of the Demolition Code provides as follows: “Development ensures that the building does not lose integral components such as feature roof forms and side verandahs, which contribute to its streetscape character.” [11] It was common ground between the experts, and I accept, that the side sleepout does contribute to the building’s streetscape character.4 The remaining question was whether its loss would amount to losing an “integral component” of the building. That expression has no defined meaning for the purposes of the city plan and should be given its ordinary meaning. The Macquarie Dictionary relevantly defines integral as: 1. of or relating to a whole; belonging as a part of the whole; constituent or component; 2. necessary to the completeness of the whole; 3. made up of parts which together constitute a whole. In the present case the expression is ‘integral component’, so the word ‘integral’ must connote something more than merely a component. In context, I take the expression to mean necessary to the completeness of the whole. [12] In contending that the sleepout is an integral component, the Council drew attention to the fact that “side verandahs” are referred to as an example in AO1.1. Whilst the sleepout is not, strictly speaking, a verandah, because it is enclosed, Mr McDonald readily accepted that it is a similar feature to a side verandah5 whilst Mr Kennedy (the expert called by the respondent) regarded the terms as interchangeable.6 As counsel 4 Exhibit 1 p 16 para 18.1(e) and 18.2(c). 5 T1-31. 6 T1-25. -- 4 of 13 -- 5 for the Council acknowledged however, the similarity of the side sleepout to the example of the side verandah given in AO1.1 is not determinative. The question remains whether the side sleepout is an integral component of the subject building. [13] The side sleepout is an original feature which comprises approximately 25 per cent of the frontage of the house to Wallin Street and approximately 25 per cent of the overall area of the house. It is not only a functional component of the building but it has features which are consistent with and contribute to the character of the house including: (i) windows facing Wallin street which match windows on the front verandah; (ii) windows on the eastern wall which also match the windows fronting Wallin street; (iii) stucco rendering; (iv) tin roof; (v) timber cladding; and (vi) arch feature at ground level matching that under the front verandah. [14] It was submitted on behalf of the appellant however, that the side sleepout is not integral in the sense of being necessary for the completeness of the whole of the building. In that regard, it was pointed out that the house is an inter-war bungalow- style house of traditional building character. The inclusion of a side sleepout (or a side verandah) on houses of this style was well recognised, but narrow versions of the style, without a side sleepout or side verandah were also commonly available and commonly sited on narrow (10 metre wide) lots. Mr McDonald’s evidence7 was that both built forms are legitimate expressions of Brisbane’s pre-1947 traditional building character and both built forms were legitimate expressions of inter-war bungalow-style houses. It was submitted on behalf of the appellant that the side sleepout is not an integral component of the current house in circumstances where that component was merely an “optional extra” or variant that was included in some pre-1947 bungalow-style houses and where the building would continue to be of the same style regardless of the proposed partial demolition. It was also pointed out that the proposed development, if approved, would be similar in style to some other houses located in the visual catchment. 7 Exhibit 4, para 2.8. -- 5 of 13 -- 6 [15] The question of whether the side sleepout is an integral component must be answered by reference to the subject building and what is integral to it. That building was constructed as a large inter-war bungalow-style house. A side sleepout (or side verandah) is a distinctive feature of that built form. Mr Kennedy’s evidence was that side verandahs (which is how he described the sleepout) were an integral component of the larger typical inter-war ‘timber and tin’ traditional character houses which straddled two blocks.8 He saw the sleepout in this case as a distinctive feature, both functionally as a sleeping space and aesthetically as an important component which affords the house its street presence as a large inter-war ‘timber and tin’ dwelling, straddling two lots.9 As Mr McDonald accepted,10 the proposal would result in the house losing its presence as a large inter-war tin and timber house and being changed to the narrow version. Mr Kennedy described the result on the house as no longer constituting a variant of the original form but in fact expressing an entirely different traditional form.11 I accept Mr Kennedy’s evidence. [16] That the proposed development would still have traditional building character does not provide an answer to the question of whether what would be lost is an integral component of the particular building. [17] That there may be some houses within the visual catchment of a similar style to that proposed does not lead to a conclusion that what is proposed to be demolished is not an integral component of the subject house. In any event, there are a greater number of wider houses in the catchment with which the proposal is inconsistent (although this is not something upon which I have placed reliance in this regard). [18] Some reference was made to the fact that two pre 1947 houses in the street were previously approved for reduction and placement onto single blocks. That however, does not provide any binding precedent for a conclusion about whether the subject application meets the tests in city plan. [19] I am satisfied that, whilst inter-war bungalow-style houses did come in a narrow version, the subject house was built in a wide version which incorporated a side sleepout as an integral component of that building. The proposed partial demolition 8 Exhibit 6, para 1.2. 9 Exhibit 6, para 1.3. 10 T1-29. 11 Exhibit 1, pg 19, para 20.2(a). -- 6 of 13 -- 7 would result in the loss of an integral component of the building which contributes to its streetscape character. AO1.2 of the Demolition Code [20] AO1.2 provides as follows: “Development involving partial demolition does not result in a narrow building which has a width-to-height proportion out of character with dwelling houses constructed in 1946 or earlier in the streetscape.” [21] It was common ground that the partial demolition would result in a narrow building.12 The experts were in agreement that the height of the proposal was not of concern.13 The residual concern was as to the width of the proposal and whether it would produce a proportion which would be out of character with dwelling houses constructed in 1946 or earlier in the streetscape. [22] The streetscape features some post 1946 houses, but the provision requires attention to focus on dwellings constructed in 1946 or earlier in the streetscape. There are two houses originally constructed in 1946 or earlier in the streetscape which have been subject to partial demolition and which have been moved from their original positions. It was contended on behalf of the Council that those should be excluded from consideration on the basis that the provision requires consideration only of houses as originally constructed in 1946 or earlier. I do not accept that submission. The provision requires the consideration of dwelling houses constructed in 1946 or earlier that are in the streetscape. The houses answer that description, notwithstanding the subsequent partial demolition and repositioning. [23] The pre-1947 dwelling houses in the streetscape are not of a uniform width-to-height proportion. In particular, there are some seven narrow pre-1947 houses on narrow allotments within the streetscape. Mr Kennedy accepted that the proposal would not be out of character with the houses constructed on those lots. Those do however, represent the minority of the pre-1947 houses in the streetscape. The preponderance, including the subject site, is wider houses built on larger sites. Of the 23 pre-1947 houses in the streetscape there are 14 houses on two lots and two which fall between the seven narrow lots and the double lots. Whilst the width-to-height proportion of 12 See McDonald T1-38 line 41, Kennedy Exhibit 1 page 18 para 19.2(b). 13 See Kennedy T2-14, 15. -- 7 of 13 -- 8 pre-1947 dwelling houses in the streetscape is mixed to an extent, I accept the evidence of Mr Kennedy14 that the main character of the street is provided by the remaining 14 larger traditional houses each developed on two allotments. Those houses are prevalent around the middle of the street where the subject site lies.15 The proposal would be out of character in the width-to-height proportion with the other 13 of those houses. The proposal does not fulfil AO1.2. Had the character been more mixed then I may have reached a different conclusion on this issue, but it would not have affected the result of the appeal given my findings on other issues. [24] The appellant sought to call in aid the Traditional Building Character Planning Scheme Policy (the PSP) which provides guidance on the elements that comprise traditional character and traditional building character. One of those elements is traditional scale. It is said that the traditional scale of a street was first established by a sub-division pattern of 16, 24, 32 perch lots with 10 metre, 15 metres or 20 metre frontages respectively. It was submitted that the proposed development respects this traditional scale by having a lot width of 10 metres. The question though is not whether a sub-division pattern of 10 metre lot frontages was one form of traditional scale of sub-division but whether the partial demolition in this particular case would result in height-to-width proportion which is out of character with dwelling houses constructed in 1946 or earlier in this particular streetscape. Reliance was also placed upon the other provisions of traditional scale not being offended, however that does not establish fulfilment of the acceptable outcome. PO1 of the Demolition Code [25] PO1 provides, in part, as follows: “Development involving partial demolition of traditional elements, detailing and materials constructed in 1946 or earlier does not diminish traditional building form and roof styles, where: (a) Forward of the primary ridge or primary gable roof form…” [26] It is common ground that the development involves partial demolition of traditional elements, detailing and materials constructed in 1946 or earlier. It also involves partial demolition forward of the primary ridge or primary gable roof form. The 14 Ex 1 pg 18 para 19.2(b). 15 T2-13. -- 8 of 13 -- 9 question is whether it would diminish traditional building form and roof styles. Diminish should be given its ordinary meaning as being to make or cause to seem smaller, lessen or reduce16. As counsel for the respondent accepted17 an effect which is trivial, minor or insignificant should not be regarded as a diminution for the purposes of PO1. [27] As Mr McDonald accepted,18 the side sleepout is part of the traditional building form of the dwelling. He did not however, consider that demolition would diminish the traditional building form and roof styles of the building. Rather, he saw it as simply changing it from one form of traditional building character to another.19 It was pointed out, for the appellant, that the proposed development would still answer the description of traditional building form and roof styles in the PSP and be consistent with other examples of traditional building character within the visual catchment. It was pointed out that City Plan did not attempt to promote one form of traditional building character as being better than another. Mr Kennedy on the other hand, saw the removal of the side sleepout as having a considerable impact on the house and was of the opinion that the proposal would clearly diminish the traditional building form of the original house. [28] The provision requires attention to the traditional building form and roof styles of the subject building. The fact that the dwelling post partial demolition would still have traditional building form as described in the PSP or be consistent with some other examples in the visual catchment does not mean that its traditional building form would not be diminished by the partial demolition. As has been noted, Mr McDonald accepted that the side sleepout is part of the building’s traditional form. The demolition of the sleepout would make smaller, lessen or reduce the building’s traditional building form to a degree which is, in my judgment, more than trivial or minor and is meaningful and significant. There is conflict with PO1. PO5/AO5 of the Demolition Code [29] There is a note to PO1 which provides as follows: 16 See Macquarie Dictionary 6th Edition. 17 T3-16, line 45. 18 T1-43 line 25, T1-44 line 17. 19 T1-42 -- 9 of 13 -- 10 “Note – where demolition results in the loss of integral components, assessment against section B of this Code is also required.” [30] The note forms part of the Planning Scheme.20 [31] Although the note speaks of “demolition” rather than partial demolition, its appearance as a note to PO1 in section A of the Code, which deals with partial demolition, means that in context, it should be construed as referring to a partial demolition. [32] The Code distinguishes between partial demolition of a building constructed in 1946 or earlier, which is dealt with in section A, and demolition or removal of such a building otherwise, which is dealt with in section B. The note appears to be subjecting certain applications for partial demolition (i.e. those which result in the loss of integral components) to the tests in section B which would otherwise apply to applications for full demolition. In the event that PO5/AO5 applied, the appellant conceded that, at best, it could only bring itself within AO5 (c) that provides: “Development involves a building which: (c) If demolished will not result in the loss of traditional building character.” [33] It was submitted, for the Council, that the provision should be construed as meaning development involves a building the whole of which, if completely demolished, will not result in the loss of traditional building character. The appellant conceded that it could not succeed if the provision applied and that were the construction. [34] Pursuant to section 1.3.1 of the Planning Scheme, a term used in the Planning Scheme has the meaning assigned to that term by the Planning Act 2016. The Planning Act defines building to mean as follows: “Building means – (a) a fixed structure that is wholly or partly enclosed by walls and is roofed; or (b) a floating building; or (c) any part of a building” 20 Section 1.3.2(3) of City Plan. -- 10 of 13 -- 11 [35] It was submitted for the appellant that, in this case, the reference to a building ought to be read as a reference to part of a building. The context in which AO5 appears is as part of section B of the Code. That suggests that the development with which it is concerned is development which involves the demolition of the whole of the building. Arguably however, the context is different where the note is engaged. In that circumstance it falls to be applied in the context of an application for partial demolition and it is arguably appropriate to construe the word ‘building’ as meaning any part of a building. On that construction, the question would be whether the development involves a part of the building, namely the side sleepout which, if demolished, would not result in the loss of traditional building character, rather than, as the Council would have it, whether development involves a building, namely the whole of the house, which if demolished would result in the loss of traditional building character. It is unnecessary for me to express a concluded view on that constructionary point however, because I am of the view that the appellant fails even on its construction of the provision. [36] The loss, applied by AO5 paragraph (c), is not an absolute. 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. The relevant loss is one which is meaningful or significant.21 It was submitted, for the appellant, that the proposed development would not result in any meaningful or significant loss of traditional building character. In particular, it was again pointed out that the proposal would, post partial demolition, still exhibit traditional building character and be consistent with some other pre-1947 houses already in the visual catchment. Traditional building form is an element of traditional building character. For the reasons earlier given, I am satisfied that the proposal would diminish the traditional building form of the subject dwelling. There would be a resulting loss of traditional building character which would be meaningful and significant.22 OO2(a) of the Demolition Code [37] Overall outcome 2(a) of the Demolition Code provides as follows: “(a) Development protects residential buildings constructed in 1946 or earlier that individually or collectively contribute to 21 Ken Drew v BCC (2017) QPELR 49 at para 36. 22 See Kennedy T2-20. -- 11 of 13 -- 12 giving the areas in the traditional building character overlay their traditional character and traditional building character.” [38] The building contributes to giving the area within the overlay its traditional character and traditional building character. This overall outcome does not prevent appropriate partial demolition however, for the reasons otherwise given, the proposal in this case does not adequately protect the building. OO2(d) of the Demolition Code [39] Overall outcome 2(d) of the Demolition Code provides as follows: “(d) Development protects a building or a part of a buildings constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier.” [40] The proposal is to demolish part of the building constructed in 1946 or earlier. Mr McDonald did not see the part proposed to be demolished as an important part of the streetscape.23 The provision requires attention to the streetscape established in 1946 or earlier. The evidence establishes that the 1946 streetscape character of Wallin Street was predominantly composed of wide traditional character houses straddling two allotments. The side sleepout is an integral component of the subject house which provides it with its original expansive traditional building form which Mr Kennedy saw as of importance in preserving its authenticity in a streetscape of similar houses established before 1946.24 I find that the sleepout forms an important part of the streetscape established in 1946 or earlier and the proposal does not protect that part of the building. OO5(c) of the Character Zone Code [41] Overall outcome 5(c) of the Character Zone Code provides as follows: “(c) Development protects and retains building built in 1946 or before on land within the traditional building character overlay in accordance with the Traditional Building Character (demolition) Overlay Code.” 23 T1-49. 24 Ex 1 Pg 21 para 25.2. -- 12 of 13 -- 13 [42] The parties were agreed that the party which is successful on the Demolition Code will also be successful in respect of this particular provision. Given my findings it follows that there is conflict with this overall outcome. OO6(a) of the Character Zone Code [43] Overall outcome 6(a) of the Character Zone Code provides as follows: “(a) Development retains a dwelling house built in 1946 or before.” [44] It was submitted on behalf of the Council that there would be conflict with this provision if it were found that the partial demolition was of an integral component of the building. The basis for that submission was not made clear. In any event, the development proposes to retain a dwelling house built in 1946 or before. There is no conflict with this overall outcome. Conclusion [45] The proposed partial demolition does not comply with the assessment benchmarks and compliance cannot be achieved by imposing development conditions. The appeal against the refusal of the partial demolition is dismissed. -- 13 of 13 --