Birleymax Pty Ltd v Brisbane City Council [2017] QPEC 44 (2017) QPELR 1016

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Birleymax Pty Ltd v Brisbane City Council [2017] QPEC 44 PARTIES: BIRLEYMAX PTY LTD ACN 156 272 945 (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 3955 of 2016 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 28 July 2017 DELIVERED AT: Brisbane HEARING DATE: 19-20 July 2017 JUDGE: Everson DCJ ORDER: The appeal is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal for a development application for the demolition of a pre-1946 house CONFLICT – conflict with planning scheme – whether proposed development application conflicts with overall outcome overall outcome (2)(b) and performance outcome 6 of the Traditional building character (demolition) overlay code of City Plan 2014 GROUNDS – whether there are sufficient grounds to justify an approval of the proposed development application despite conflicts COUNSEL: T Fantin for the appellant M Williamson for the respondent SOLICITORS: Broadley Rees Hogan for the appellant Brisbane City Legal Practice for the respondent -- 1 of 9 -- 2 Introduction [1] This is an appeal against the decision of the respondent to refuse a development application for the demolition of a pre-1946 house (“the house”) at 87 Birley Street, Spring Hill (“the land”). [2] At the commencement of the hearing the issues in dispute narrowed considerably. They are now confined to discrete provisions of the Traditional building character (demolition) overlay code (“the code”) of the respondent’s planning scheme, City Plan 2014 (“City Plan”) which applies to the land. The respondent asserts that approval of the development application conflicts with overall outcome (2)(b) of the code which “protects a federation era or earlier building by limiting demolition or removal to only where a building is structurally unsound”,1 and performance outcome 6 (“PO6”) of the code which applies in the event the building is a pre-1911 building and which only permits demolition of such a building where it “is not capable of structural repair”.2 Although the external appearance of the house has been butchered somewhat (principally as a consequence of alterations which apparently took place in the 1950s) neither party asserts that it is not structurally sound.3 The appellant disputes the house was constructed before 1911 and asserts that there are sufficient grounds to approve the demolition of the house notwithstanding any conflicts with the code. Relevant provisions of City Plan [3] There is a theme running through City Plan which seeks to preserve traditional building character. It is exemplified in the Strategic framework in Theme 2, element 2.1. In particular, the following specific outcome and land use strategies are relevant: SO20 Brisbane’s distinctive suburban identity is reinforced by its character housing precincts. L20.1 Character buildings built in 1946 or before are protected via overlays. L20.2 Development proposals maintain the traditional building character housing that individually and collectively contributes to the 1 Exhibit 2, 160. 2 Ibid 163. 3 Exhibit 1. -- 2 of 9 -- 3 distinctive character of the area and streetscape. [4] As the land is within the Petrie Terrace and Spring Hill neighbourhood plan area it is subject to the Petrie Terrace and Spring Hill neighbourhood plan code (“the neighbourhood code”).4 The purpose of the neighbourhood code includes overall outcome (3)(a) which relevantly states: “(3) The overall outcomes for the neighbourhood plan area are: (a) The neighbourhood plan protects the character of the built environment by restricting the demolition of buildings that have either character or heritage significance. Petrie Terrace and Spring Hill were two of the first parts of the city to be settled and as such, contain some of the oldest buildings and traditional character streetscape in the city. Traditional modest residential dwellings erected on small allotments are the hallmark of Petrie Terrace and Spring Hill. These buildings and areas make a significant contribution to Brisbane's heritage and character and are to be retained.”5 [5] In conformity with L20.1 of the Strategic framework the house is subject to the Traditional building character overlay.6 The code therefore applies. The purpose of the code is in the following terms: “(1) The purpose of the Traditional building character (demolition) overlay code is to: (a) Implement the policy direction in the Strategic framework, in particular: (i) Theme 2: Brisbane's outstanding lifestyle and Element 2.1- Brisbane's identity; (ii) Theme 5: Brisbane's CityShape and Element 5.5 - Brisbane's Suburban Living Areas. (b) Provide for the assessment of the suitability of building work for the demolition, removal or repositioning of a building or structure if any part of the building or structure was substantially constructed in 1946 or earlier, in the Traditional building character overlay. (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 give the areas in the Traditional building character overlay their traditional character and traditional building character. (b) Development protects a federation era or earlier building by limiting demolition or removal to only where a building is structurally unsound. 4 Exhibit 3, 9. 5 Exhibit 2, 106. 6 Exhibit 3, 9. -- 3 of 9 -- 4 (c) Development protects a non-residential character building that contributes to the traditional character of the locality; forms part of the character streetscape; and provides or has provided in the past a variety of services to the community. (d) Development protects a building constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier. (e) Development retains a residential building constructed in 1946 or earlier that reflects the traditional building character other than ‘timber and tin’ architecture, if in the Character residential zone. (f) Development ensures that a dwelling house moved onto, or repositioned within a small lot is consistent with the requirements for houses on a small lot. (g) Development permits demolition or removal of post- 1946 residential buildings or structurally unsound buildings. (h) Development ensures that, in conjunction with the Traditional building character (design) overlay code, precincts of residential buildings constructed in 1946 or earlier are retained and redevelopment in those precincts complements the traditional building character of buildings constructed in 1946 or earlier.”7 [6] Thereafter, there are a number of assessment criteria relevant to the distinct overall outcomes referred to above. Of particular relevance to the determination of this appeal are the following: Additional criteria if a pre-1911 building PO6 Development involves a building which is not capable of structural repair. AO6 Development involves a building which a Registered Professional Engineer Queensland certifies is structurally unsound and not reasonably capable of being made structurally sound. Was the house built before 1911? [7] Evidence concerning the age and origin of the house was given by two experienced heritage architects, Mr Scott who was called by the appellant and Mr McDonald who was called by the respondent. I also received a report of Ms Nissen, a historian, dated 6 March 2017.8 The presentation of the evidence, which at times resembled an episode of the popular ABC television series “Who’s Been Sleeping In My House?” 7 Exhibit 2, 160-161. 8 Exhibit 3, 20-41. -- 4 of 9 -- 5 involved a combination of historical documentary evidence and opinion evidence of the heritage architects. [8] The documentary evidence is uncontentious. On 8 March 1898, a property speculator and developer, Richard Gailey, purchased the land together with other land adjacent to it in Birley Street. By early 1899 he had constructed four houses on sites to the north of and adjacent to the land.9 One of these houses is now number 75 Birley Street. This assumes considerable significance in the determination of the disputed issues for reasons which will become apparent. At some point in time a duplex was also constructed on the land.10 In 1925 Mr Gailey’s son subdivided the land and adjoining land to make provision for a road reserve which became Penton Lane to the south of the land and three new lots to the north of the land. In the survey plan certified 24 April 1925, Lilley Street is shown as running perpendicular to Birley Street but terminating west of lots 3 and 4.11 The land is shown as lot 1. It is admitted by the appellant that between 1925 and 1927, members of the Gailey family owned all four of the lots from lot 1 in the south to lot 4 in the north.12 [9] In the Brisbane City Council Works Committee Minutes, dated 10 December 1926 at p 661, the following appears: “Your Committee had before it a proposal from the City Architect with reference to the extension of Lilley and Birley Streets Spring Hill. The Register Proprietor of the property affected, Mr Gailey, has offered to remove the existing house to another position (which would leave the site of the proposed roadway extension clear) if the Council, on its part, will resume the land necessary for the road and carry out the construction. Your Committee is of the opinion, after an inspection of the locality, that the proposal would effect a very urgent and much needed improvement, and it is, therefore, recommended that action be taken to resume the necessary land and connect the streets.”13 [10] Upon the sewering of the area, the Metropolitan Water Supply and Sewerage Board Drainage Plan No. 5009, which was traced on 25 January 1927, shows a house on the land with a footprint identical to the houses built by Mr Gailey Snr to the north of the 9 Ibid 22. 10 Ibid 23. 11 Ibid 25, 29. 12 T2-10 – T2-11. 13 Exhibit 3, 28. -- 5 of 9 -- 6 land in 1899, save for the enclosing of a small rear veranda.14 In this regard I accept the evidence of Mr McDonald that this change was to accommodate the now indoor toilet and/or bathroom in place of an external toilet and external bathroom as a consequence of the sewering of the area.15 Not only is the footprint of the building on the land which was traced on 25 January 1927 essentially identical to the footprint of the houses built by Mr Gailey in 1899, but the siting of it on the land is also the same.16 The land is shown to be a corner block reflective of the creation of Penton Lane. A street atlas for Brisbane published in 1931 shows Lilley Street extending into Birley Street.17 [11] Although Drainage Plan No. 5009 traced on 25 January 1927 shows lot 1 to be reduced in size and a corner block, the circumstances of the demolition of the duplex which formerly occupied the land are unknown.18 Moreover, despite searches of the respondent’s building registers and other records for the relevant period, no entries have been located which confirm the construction of a new house on the land.19 Furthermore, despite a resolution of the respondent on 21 September 1926 that houses sold for removal may only be erected on approved sites and subject to the approval of the City Architect, no such approval exists in respect of the house shown in the drainage plan referred to above.20 [12] In addition to the historical evidence I also have the expert evidence of Mr Scott and Mr McDonald to assist me in determining the age of the house and where it came from. In this regard, Mr McDonald has identified a number of internal features which are present in the house which suggest it was a Federation era house. Ultimately, under cross-examination, Mr Scott conceded that the house is a Federation era house but was not prepared to accept that it was a pre-1911 house. It is uncontentious that the Federation era refers to a style of building constructed between 1890 and 1915.21 It is regrettable that the drafters of City Plan have chosen a date, namely 1911, which does not correspond with the end of a particular design era. Accordingly, although there are a number of features present in the house which reveal that it was 14 Ibid 28, 40. 15 T2-42, ll 40-46. 16 Exhibit 3, 28, 40. 17 Ibid 25, 29. 18 Ibid 22. 19 Ibid. 20 Ibid; Exhibit 4. 21 T2-33, ll 20-30; T2-44, ll 44-46. -- 6 of 9 -- 7 constructed in the Federation era, there is no design feature which has particular relevance to 1911. Both heritage architects also inspected 75 Birley Street which was unquestionably built in 1899, having regard to the historical records referred to above.22 This building and the house are not only of a similar size and layout but both had atypical 85mm wide beaded tongue and groove wall and ceiling boards and atypical 88mm wide tongue and groove pine floor boards suggesting that they were built as part of the same development.23 [13] On the evidence before me I am satisfied that the house was constructed by Mr Gailey Snr in 1899 and that it was the third house to the north of the land where Lilley Street now extends to Birley Street. I further find that to enable the extension of Lilley Street, the house was moved to the land which had formerly been the site of a duplex. The site had been reduced in size as a consequence of the dedication of Penton Lane. This was in the same ownership. The house was neither sold for removal nor newly constructed at this time. These facts and the fact that its removal and repositioning was contemplated by the Council in the Works Committee Minutes dated 10 December 1926 explain the absence of other approvals in the records of the respondent. It was in place on the land at the time Drainage Plan No. 5009 was traced on 25 January 1927. It is therefore both a Federation era building and a pre-1911 building. [14] The relevant provisions of the code do not distinguish between a Federation era building, or pre-1911 building, which was constructed on the current site and one which was moved there subsequently. The development application is therefore in conflict with both overall outcome (2)(b) and PO6 of the code. Conflict and grounds [15] The decision of the court must not conflict with City Plan unless there are sufficient grounds to justify the decision despite the conflict pursuant to s 326(1) of SPA. [16] The term “grounds” is defined in Schedule 3 of SPA in the following terms: “1. Grounds means matters of public interest. 2. Grounds does not include the personal circumstances of an applicant, owner or interested party.” 22 Exhibit 3, 22. 23 Ibid 45. -- 7 of 9 -- 8 [17] In Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust)24 the Court of Appeal endorsed the three stage test which had previously been pronounced in Weightman v Gold Coast City Council25 which requires the court to: “1. examine the nature and extent of the conflict; 2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; 3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”26 The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.27 [18] The appellant submits that the nature and extent of the conflict is minor. This it asserts is because no conflict is alleged with the balance of the code and other relevant provisions of City Plan and the conflict needs to be assessed in the context of what is intended to be achieved by these provisions. Relevantly, that a building exhibiting traditional building character and which makes a positive contribution to the streetscape is preserved and that the house does neither.28 Conversely, it is submitted by the respondent that PO6 makes it clear that a pre-1911 house is assumed to have the requisite character and it is the intention of the respondent that it can only be demolished if it can be demonstrated to be structurally unsound.29 [19] I accept that overall outcome (2)(b) of the code makes it clear that a Federation era or earlier building is in a special class and can only be demolished where it is structurally unsound. This is reinforced by PO6 with respect to a pre-1911 building. I accept the submission of the respondent that the code places a Federation era building and, in particular, a pre-1911 building in a separate category where it has deemed character in the event that it is structurally sound. I therefore find that the development application seeking demolition of the house is significantly in conflict with the relevant provisions of the code. 24 [2013] 2 Qd R 302; [2013] QPELR 188; [2012] QCA 370. 25 [2003] 2 Qd R 441; [2003] QPELR 43; [2002] QCA 234. 26 Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302, 462 [18]. 27 Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474, 483. 28 T2-80, ll 35-45. 29 T2-82, ll 30-40. -- 8 of 9 -- 9 [20] The planning grounds advanced by the appellant are that the house has been substantially altered and it does not contribute positively to the visual character of the street, it does not represent traditional building character and if demolished there will be no loss of traditional building character. In these circumstances, it is submitted there is no public interest in preserving the house from demolition. With great respect, this submission appears to misstate the meaning of “grounds” quoted above. In order to qualify as a ground the appellant must demonstrate that the demolition of the house is in the public interest. The appellant has not endeavoured to do so. I therefore find that the purported ground raised is an illusory one. In the event that I am wrong, the fact that the structurally sound house does not currently contribute to the traditional building character of the street is not a matter which justifies the significant conflicts with the relevant provisions of the code identified in paragraph [14] above. In these circumstances, such a ground in favour of the development application as a whole is, on the balance, not sufficient to justify approving the development application notwithstanding the conflicts. Conclusion [21] The house was constructed in 1899. The development application for the demolition of it is in significant conflict with the relevant provisions of the code which require its preservation unless it is structurally unsound, which it is not. No grounds have been demonstrated in favour of the development application which are sufficient to justify demolition of the house notwithstanding the conflict. [22] The appeal is dismissed. -- 9 of 9 --