Bourboulas & Ors v Brisbane City Council [2016] QPEC 33 (2016) QPELR 643

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: John Bourboulas & Ors v Brisbane City Council [2016] QPEC 33 PARTIES: JOHN BOURBOULAS and OTHERS (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO: 3755 of 2015 DIVISION: Planning and Environment PROCEEDING: Appeal allowed ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 14 July 2016, ex tempore DELIVERED AT: Brisbane HEARING DATE: 14 July 2016 JUDGE: Everson DCJ ORDER: 1. Appeal allowed; 2. The matter is adjourned for further hearing to permit parties to negotiate appropriate lawful conditions to give effect to reasons for judgement. CATCHWORDS: ENVIRONMENT AND PLANNING – APPEAL – where respondent council refused an application for preliminary approval for building work involving the relocation of a pre- 1946 residential building – where the development application was code assessable under the relevant planning scheme – whether compliance with the applicable code could be achieved by imposing appropriate conditions. Sustainable Planning Act 2009, 313, 245. COUNSEL: K Wylie for the appellant T Trotter for the respondent SOLICITORS: Direct Brief for the appellant Brisbane City Council Legal for the respondent -- 1 of 5 -- 2 [1] This is an appeal against the decision of the respondent made on 28 August 2015 to refuse an application for preliminary approval for building work involving the relocation of a pre-1946 residential building (“the building”). The development application was code assessable pursuant to section 313 of the Sustainable Planning Act 2009 (“SPA”). [2] The building is situate on two lots at 37 and 37A Nicholson Street, Greenslopes (“the existing site”). The appellants propose to move it 15 metres to the west, to be fully contained within one lot at 39 Nicholson (“the proposed site”) which is currently vacant. The existing site is located within the Traditional building character overlay area. The proposed site lies outside it. [3] As the development application was code assessable and involved development of a pre- 1946 residential building within the Traditional building character overlay area, it was subject to assessment pursuant to the Traditional building character (demolition) overlay code (“the code”). This is the only code relevant to the determination of this appeal. The respondent refused the development application on the grounds that it did not comply with the purpose and overall outcomes of the code in so far as it does not legally protect a residential building that contributes to the traditional character of the area and further that it did not comply with Performance outcome PO5 of the code. [4] The appellants concede that the development application does not comply with PO5 of the code, but assert that with the imposition of appropriate conditions, protection of the building can be achieved such that there is compliance with the purpose and overall outcomes of the code. The appellants also submit that there is compliance with the relevant Performance outcome which is PO10. [5] The process for undertaking the applicable code assessment is set out in the respondent’s planning scheme, City Plan 2014 (“City Plan”). Relevantly, City Plan provides in section 5.3.3: “(1) The following rules apply in determining assessment criteria: … (c) for code assessable development: … (iii) development that complies with: (A) the purpose and overall outcomes of the code complies with the code; (B) the performance or acceptable outcomes where prescribed complies with the purpose and overall outcomes of the code;” [6] Section 8.2.21.1 of the code states that it applies “to assessing development in the Traditional building character overlay”. Pursuant to section 8.2.21.2, the purpose is stated in, inter alia, 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, … -- 2 of 5 -- 3 (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. … (d) Development protects a building constructed in 1946 or earlier where it forms an important part of a streetscape established in 1946 or earlier. … (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] Thereafter assessment criteria are specified by way of Performance outcomes and Acceptable outcomes. In circumstances where there is demolition or removal of a building constructed in 1946 or earlier, PO5 states: “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 positively to the visual character of the street.” [8] In circumstances where there is repositioning of a residential building or structure, if any part of the building or structure was substantially constructed in 1946 or earlier, PO10 states: “Development ensures that the siting and orientation of a residential building on a lot: (a) is complementary to the traditional setting of a dwelling house constructed in 1946 or earlier nearby in the street; (b) does not diminish the streetscape character of the original street to which the building was orientated; (c) does not result in a building being isolated from a traditional streetscape.” -- 3 of 5 -- 4 [9] In the joint report of the expert heritage architects, which is exhibit 3 before me, it was stated, inter alia: “The heritage experts agree that Nicholson Street has traditional character and that the subject building contributes positively to the visual character of the street … … …the heritage experts agree that the proposal to remove the subject building from the existing site and relocate it on the receiving site will not result in any loss of traditional building character to either the subject building or the street and support the proposal provided the receiving site is afforded an appropriate means of character protection.” Thereafter the heritage architects expressed the view that a set of draft conditions, which are now exhibit 5 before me, “may provide the receiving site with an appropriate means of character protection”. [10] It should be noted that the report of the heritage architects discloses that there are numerous points within the Traditional building character overlay area in Nicholson Street where pre-1946 residential buildings have been demolished and modern dwellings built in their place. There are three new buildings one on site and a vacant block and two new buildings on the other side of the existing site. It therefore cannot be said that the building forms part of a cohesive streetscape of similar buildings on that side of the street and that its removal to the proposed site would have an adverse impact of the type that may occur where there is an unbroken cluster of similar buildings and one of them is removed. [11] A joint report of town planners was also prepared and is exhibit 4 before me. Much of this report concerned the proper characterisation of the proposed development and whether it can properly be classified as a demolition or removal, and therefore subject to PO5 in the assessment table, or a repositioning and therefore subject to PO10 in the same table. [12] I am satisfied that what is proposed is not a demolition and acknowledge that the development application contemplates removing the building from a site within the overlay to a site outside it, where it will no longer be afforded the protection it otherwise has. In reading the assessment table as a whole, it is my view that what is proposed is best classified as a repositioning, in circumstances where PO10 contemplates moving the building to a site within the vicinity, which is what is intended on the facts before me. However, although this is the best description of what is proposed, the code only applies to development in the Traditional building character overlay area. The component of the development application relating to the repositioning of the building occurs entirely outside the overlay area. In this respect, it is arguable that the code does not apply to such a scenario. [13] Ultimately, it is unnecessary for me to decide what is the most appropriate categorisation as I am satisfied that, with the imposition of appropriate lawful conditions, the relevant purpose and overall outcomes of the code can be complied with. In this regard, I note -- 4 of 5 -- 5 not only the view of the heritage architects quoted above, but also that the conditions of a development approval attach to the land at the proposed site and bind the owner and the owner’s successors in title and any occupier of the land, pursuant to section 245 of SPA. Although the respondent has taken issue with the lawfulness and enforceability of any such conditions, I am confident that conditions can be imposed upon the proposed development which, in effect, give the building an equivalent level of protection to other such buildings in Nicholson Street that are within the Traditional building character overlay area. This would preserve the traditional building character of the building in a way which accords with the unanimous view of the heritage architects in their joint report. [14] I therefore allow the appeal and adjourn the matter for further hearing to permit parties to negotiate appropriate lawful conditions to give effect to my reasons for judgment. -- 5 of 5 --