Doolan v Brisbane City Council [2010] QPEC 130 [2011] QPELR 279

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Doolan v Brisbane City Council [2010] QPEC 130 PARTIES: MATTHEW DOOLAN (appellant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 712/10 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 9 December 2010 DELIVERED AT: Brisbane HEARING DATE: 2 December 2010 JUDGE: Searles DCJ ORDER: APPEAL DISMISSED CATCHWORDS: PLANNING AND ENVIRONMENT – DEMOLITION CODE – whether demolition will result in the loss of traditional building character. PLANNING AND ENVIRONMENT – DEMOLITION CODE – whether building contributes positively to the visual character of the street. COUNSEL: M.J Doolan – Appellant T. Trotter – Respondent SOLICITORS: Brisbane City Legal Practice – Respondent Nature of the appeal [1] The appellant appeals the refusal by the Council of a Development Application to demolish a pre-1946 house constructed on Lots 3 and 4 on RP 29573, County of Stanley, Parish of Oxley, containing an area of 974 m2 and situated at 32 Harrowby Street, Corinda (the house). The land is situated within the Demolition Control -- 1 of 13 -- 2 Precinct within the City Plan. The appellant bears the onus of proof pursuant to s 4.1.50 (1) of the Integrated Planning Act (IPA) Submitters [2] Two submitters, Ms Deborah Rich and Peter Usher lodged a thorough and thoughtful notice of objection dated 16 October 2009.1 Council’s grounds for refusal [3] The Council refused the application on two grounds:2 “ (i) Non-compliance with Acceptable Solution A1.3 of the Demolition Code. … The demolition of the subject building will result in the loss of traditional building character within the Demolition Control Precinct; (ii) Non-compliance with Performance Criteria P1 of the Demolition Code. … The subject building does represent ‘traditional building character’. The subject building contributes positively to the visual character of the street.” Appeal grounds [4] By Notice of Appeal filed 9 March 2010, Mr Doolan appealed the Council decision on two grounds:- (a) that the removal of the house would not result in the loss of traditional building character; and (b) the house does not contribute positively to the visual character of the street. Issues for determination [5] The issues for determination then are:3 (a) whether the house represents traditional building character; and if so 1 Exhibit 1, page 55. 2 Council Decision Notice Details - Exhibit 1, page 85. 3 Demolition Code Performance Criteria P1; City Plan Chapter 5, page 70 – Exhibit 1 page 206. -- 2 of 13 -- 3 (b) whether the house contributes positively to the visual character of the street. [6] If it is found that the house does not represent traditional building character within (a), the appeal will succeed without the necessity of consideration of (b). Applicable law [7] By virtue of the operation of s 819(5)(a) and (6) of the Sustainable Planning Act 2009 (SPA) the appeal must be heard and decided under the repealed IPA the relevant provision of which is s 3.5.13 which provides:- “3.5.13 Decision if application requires code assessment (1) This section applies to any part of the application requiring code assessment. (2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.” [8] Before turning to the substantive issues, it is helpful to consider some passages of the City Plan to give context to the Demolition Code. (a) Chapter 3 page 10, first paragraph: “For code assessment the Code is the Purpose, Performance Criteria and Acceptable Solutions. The Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways to comply that meet the Code’s Purpose. It is up to the applicant to demonstrate how alternative solutions achieve this. A proposal that fails to comply (except in insignificant details) and cannot be conditioned to mitigate impacts will be refused.” (b) Chapter 2 page 16, paragraph 4.2 – Residential Neighbourhoods: 4.2.1 The challenge “… the critical elements are liveability, residential character, safety, servicing and accessibility – developing a sense of community. The key issue raised by the community in preparation of the B 2011 Plan is the desire to protect the City’s unique character … 4.2.2 The response Residential neighbourhoods are the most extensive of the City structure elements. They contain the elements that help make Brisbane so liveable: residential areas and related amenities and -- 3 of 13 -- 4 facilities such as convenience shopping, local parklands, schools, churches, hotels and clubs. The components of the residential neighbourhoods’ strategy are to: • … • … • maintain character; • … • … 4.4.4 Maintaining character “Each neighbourhood has character derived from its architecture …. In older suburbs, the unique character is derived mainly from the topography, urban layout and ‘timber and tin’ architecture. Much of this ‘timber and tin’ housing will remain and new development will reflect traditional design elements while allowing for innovative design responses. Whilst ‘timber and tin’ housing is a distinctive feature of Brisbane’s traditional building character, other less common housing styles and materials, such as masonry construction, are important and worthy of attention. … Demolition Control Precincts are those locations in older suburbs that contain pre-1946 housing with distinctive traditional architecture. …” (c) Chapter 3 Page 27, paragraph 5 - Residential Areas “Residential Areas area the main components of Residential Neighbourhoods in the Strategic Plan. The Plan has 5 different Residential Areas: • Low Density Residential Area; • Character Residential Area; • Low-Medium Density Residential Area; • Medium Density Residential Area; • High Density Residential Area … -- 4 of 13 -- 5 An important characteristic of the City’s older suburbs is the traditional architecture. Demolition Control Precincts are locations in the older suburbs where pre-1946 housing is still dominant. Special provisions apply in the Demolition Control Precincts to preserve and complement much of this architectural character by requiring: • An application for demolition of a building; • … 5.2.2 Desired environmental outcomes 1. … 2. … 3. In Demolition Control Precincts pre-1946 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.” (d) Demolition Code “1 Application This Code will apply in assessing building work for the demolition … of a building where: • on a site in the Demolition Control Precinct where any part of the residential building was substantially constructed in or prior to the end of 1946, or • where the building was substantially erected prior to 1 January 1900 3 Purpose The purpose of this Code is to: • protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity • protect the non-residential character buildings in the Demolition Control Precinct that contribute to the general character of the locality and provide or have provided a variety of services to the community. • ensure the preservation of non-residential character buildings or structures where they form part of a character streetscape. • ensure the preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946 • ensure the contribution of houses constructed prior to the end of 1946 that reflect design styles and materials other than -- 5 of 13 -- 6 ‘timber and tin’ architecture is recognised and retained in the Lower Density Residential Area and Character Residential Area • in conjunction with the Residential Design-Small Lot Code, ensure that houses moved onto small lots are consistent with the requirements for houses on small lots. • allow demolition or removal of post-1946 residential building or structurally unsound buildings • retain traditional commercial character buildings • In conjunction with the Residential Design-Character Code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in those precincts complements the houses constructed in or prior to the end of 1946 • retain low cost housing in the form of boarding houses. 4 Assessment Guidance – an explanation of traditional building character Street Context The traditional scale of a street was first established by its subdivision pattern of 16, 24 or 32 perch lots, with 10, 15 or 20 m frontages respectively. This pattern was reinforced by the traditional building form of a single level house elevated on stumps. This created a reasonably uniform scale, accentuated by consistent stepping of the levels of adjoining buildings in Brisbane’s hilly suburbs, and by uniform spacing between houses in the flatter suburbs. Building form and scale The predominant traditional building form of pre-1946 housing is a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandahs. The roof forms are medium pitched pyramids, hips or gables. This style is often referred to generically as the Queensland vernacular. Other traditional building forms also exist, exhibiting overseas architectural influences on Brisbane’s residential design. These building forms occurred primarily during the inter war period. These styles include, but are not limited to, Art Deco, Spanish Mission, Californian Bungalow and Georgian. Materials and details The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens and batten panels that cast shadows and provide three-dimensional effects. Character is also derived from the relatively limited range of materials available at the time of construction. This provided a unifying theme of painted timber walls and corrugated steel roofing. These lightweight external elements reduce building bulk and form a transition with the external -- 6 of 13 -- 7 landscape. They make an appropriate response to the local climatic conditions of strong sun and high rainfall. Whilst ‘timber and tin’ are the predominant materials of the older suburbs.[sic] The presence of other distinctive building forms, such as the Spanish Mission, and their variety of materials highlights the overseas influence on residential design in Brisbane and is a part of the traditional building character. These housing styles are usually rendered on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof. Setting The traditional setting of houses in the older suburbs is a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and a single width driveway. The setting of the building on the site is also important, particularly in terms of the setbacks provided to existing or proposed side boundaries … 5 Performance Criteria and Acceptable Solutions Performance Criteria Acceptable Solutions Where a residential building: Where a residential building: P1 The building: • Must not represent traditional building character, or • Must not be capable of structural repair, or • Must not contribute positively to the visual character of the street Note: ‘Traditional Building Character’ is described in Section 4 of this Code A1.1 A1.2 A1.3 A1.4 The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946 OR An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound OR The demolition of a building will not result in the loss of: • traditional building character within the Demolition Control Precinct where in a Low Density Residential Area … • traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low-medium Density Residential Area -- 7 of 13 -- 8 OR The street has no traditional building character ……. …… …” Site of subject house [9] The house is a detached, low-set, timber-framed and timber-clad house with a hip roof form at medium pitch sheeted in corrugated steel roofing. It is supported on low concrete stumps with timber infill battens between. The front stairs provide access to a front door and small entry vestibule. Windows are multi-pane, timber casements. The roof has a continuous eaves overhang with timber fascias and Quad- profile guttering. Modern lattice panels have been suspended in front of some windows. [10] The house is sited on its lot to a front setback and orientation broadly consistent with the other houses in Harrowby Street and a single width driveway runs along the side of the house to a small rear timber garage. The site incorporates a front garden with established trees.4 Age of building [11] Mr Doolan, in his town planning report prepared in support of the application, stated that the house is a pre-1946 timber clad (weatherboard) and tin roofed house typical of housing available pre-WWII.5 In his oral evidence, Mr Doolan cast doubt on the date of construction of the building and said that it could have been built post-1946. 6 Mr McDonald, the expert witness called by the Council, said in his Statement of Evidence7 and in his oral evidence8 that his researches dated the construction of the building between August 1944 and the date of the Council’s aerial photograph in 1946. I am satisfied, on balance, that the building was constructed prior to the end of 1946. Agreed Issues [12] Mr Doolan, who has the dual roles of both appellant and expert Town Planner, and the Council’s expert, Mr McDonald, provided a joint report9 which outlined the customary points of agreement and disagreement. Without setting out all issues agreed upon, I mention the following:- (a) The building is structurally sound so no issue arises in that regard; 4 Statement of Evidence – Mr I McDonald paragraphs 3.1 and 3.2 – Exhibit 1, page 102. 5 Exhibit 1, page 31. 6 Transcript 1.5.20-60. 7 Exhibit 1, page 102, footnote 2. 8 Transcript 1.18.10-40. 9 Exhibit 1(a). -- 8 of 13 -- 9 (b) Of the seven Performance Criteria, P1 to P7, in the Demolition Code, only P1 applies to this matter. Within P1 only dot points 1 and 3 apply. They are:- “the building: • must not represent ‘traditional building character’, or • must not contribute positively to the visual character of the street.” (c) Of the Acceptable Solutions associated with P1, only the first dot point of A1.3 is applicable, namely:- “the demolition of a building will not result in the loss of: • Traditional building character within the Demolition Control Precinct wherein a Low Density Residential Area or Character Residential Area.” (d) In relation to the purpose of the Code set out above in paragraph [8] above, only the first, fourth and ninth dot points are applicable; (e) The house’s original external appearance from the street has not been substantially altered and the rear additions which have occurred to the building are not significant alterations affecting the character of the house; (f) The house: • Has a single floor level (notwithstanding the ground level rear additions referred to above); • Is constructed of timber floor, wall and (presumably) roof framing • Is raised approximately 300 mm above the ground on concrete stumps with timber batten panels between the stumps which means it is set lower to the ground than other pre-1946 houses in the street; • Is clad externally and painted timber weatherboards; • Has corrugated steel roofing; • Has a hip roof form at a medium pitch of approximately 15- 20º; • Has projecting roof eaves to the perimeter of the building; • Has front and side setbacks which are broadly consistent with other houses in Harrowby Street; and faces Harrowby Street and its orientation on the site is broadly consistent with other houses in Harrowby Street; and • Has no attached or integrated verandahs. (g) The site upon which the house is located:- • Has an area of 974 m2 over two lots; -- 9 of 13 -- 10 • Has a street frontage of approximately 20 metres; • Is broadly consistent with the subdivision pattern of other sites in Harrowby Street; • Has a front garden with established trees; and has a single width driveway running beside the house. Matters in Contention [13] Consistent with the issues identified in paragraph [5] above, the experts disagreed on whether the house represents “traditional building character” within the City Plan and whether the house contributes positively to the visual character of Harrowby Street. (a) Does the house have traditional building character? Mr Doolan’s case [14] Mr Doolan relies upon the City Plan explanation of traditional building character10 which he says refers to the traditional style of pre-1946 housing as the Queensland vernacular, or more commonly, a Queenslander. He says the subject house falls within the housing style description of Austerity and Conventional placing it in the non-vernacular, non-traditional and non-Queenslander category. He points to the roof form of the house as being inconsistent with the traditional vernacular or Queenslander houses in the immediate area of the subject house and points out that the roof contains no feature gable ends, bungalow roofs, separate verandah roofs or other interesting roof forms or features normally associated with traditional, vernacular or Queenslander houses. [15] Mr Doolan says further that the features of the house agreed upon with Mr McDonald, set out in paragraph [12] above, are common to many house styles not limited individually or in combination to the traditional vernacular or Queenslander house style. [16] Contrary to ground 1 of his Notice of Appeal, Mr Doolan accepted in his oral evidence that the explanation of traditional building character in the City Plan was in the nature of an explanation and guide only and not a definition.11 He, nevertheless, relies on certain elements of that explanation to support his argument. He refers to the description of traditional housing character in that explanation as having a solid core with attached or integrated verandahs, enclosed areas underneath and generally a street appearance of lightweight supports to upper floors reflecting the layout of upper floor verandahs. He further refers to roof forms of medium pitch with pyramids, hips or gables. Finally he relies upon the reference to “other traditional building forms” not displaying the above characteristics but which exhibit overseas architectural influences. Styles include, but are not limited to, Art Deco, Spanish Mission, Californian Bungalow and Georgian styles. [17] Mr Doolan argues that by reference to that explanation and to the “other” styles referred to, the subject house does not fall within either the Queensland vernacular style or those styles influenced by overseas architectural concepts. Rather, he says, 10 Demolition Code paragraph 4, Exhibit 1, page 205; paragraph [8] above. 11 Transcript 1.11.8-20. -- 10 of 13 -- 11 the subject house is an Austere or Conventional style falling outside the traditional building character style contemplated by the City Plan. In summary, he contends that the subject house style is not primarily a reflection of any overseas influence but of the economic and material reality in Brisbane at the time of construction. I take the reference to material reality to refer to the availability of building materials at the time. Council’s response [18] The council called Mr Ivan McDonald an architect specialising, relevantly, in the conservation of historic buildings. He has been involved in the conservation of many historic buildings both in Australia and overseas and has worked for the National Trust. He has completed post graduate study in Urban Design majoring in Urban Conservation and is an appointed Heritage Assessor under section 27 of the Queensland Heritage Act.12 In evidence Mr McDonald said his specialty was Heritage Architecture of Queensland.13 [19] Mr McDonald provided a comprehensive statement of evidence14 in addition to the joint experts’ report. He agrees with Mr Doolan that the house belongs in the Austerity style of architecture. He says that style is commonly, but erroneously, attributed exclusively to the post-WWII era, when, in his view, it was at least as prevalent as other inter-War house styles such as Art Deco, Spanish Mission or Georgian to which the City Plan gives protection in Low Density Residential Areas. [20] In relation to the abovementioned explanation of traditional building character in City Plan,, Mr McDonald makes the point that it speaks of a predominance of traditional building form. It then goes on to describe that form as having the features I have outlined above in relation to Mr Doolan’s case. In Mr McDonald’s view, this explanation is not to be interpreted as defining an exclusivity of form of traditional building character, but must be taken to allow of the inclusion of other form variants of pre-1946 housing, one such example being the subject house. [21] Mr McDonald points to the abovementioned agreed features of the house and says they are important and fall within the traditional building character of a pre-1946 house. Notwithstanding that, he agreed that all those features could be found in a house built today if required by the owner.15 [22] Mr McDonald refers to various texts16 to demonstrate his point that the Austerity or Conventional style of house was an established part of Brisbane’s housing typology prior to 1946. Perhaps the most telling of those references is a brochure of the State Advances Corporation (subsequently named Queensland Housing Commission) of October 1938 setting out standard housing designs being offered to the public similar in style to the present Austerity or Conventional style under consideration.17 Of the 28 designs offered in that 1938 plan catalogue, nine were, according to Mr McDonald, reflective of the Austerity/Conventional style. 12 Exhibit 1 p146. 13 Transcript 1.17.45. 14 Exhibit 1(b). 15 Transcript 1.24.55. 16 Exhibit 1 (b) par 3.6-3.8. 17 Exhibit B par 3.9. -- 11 of 13 -- 12 Conclusion re traditional building character [23] Having considered the evidence of both Mr Doolan and Mr McDonald relating to traditional building character, I prefer the evidence of Mr McDonald. I consider Mr Doolan’s approach to the matter as too narrow an approach, overly reliant upon the explanation in the City Plan as being definitive of the issue, notwithstanding his concession that it was not a definition. It is apparent to me from the evidence of Mr McDonald, that houses of the style under consideration, whilst perhaps not dominant in pre-1946 Brisbane, were certainly a part of the urban landscape in sufficient numbers to attract the description of traditional building character within the City Plan. Accordingly, I find the subject house does represent traditional building character within the Demolition Code. (b) Does the house contribute positively to the visual character of Harrowby Street? Mr Doolan’s case [24] Mr Doolan argues the house does not contribute positively to the visual character of Harrowby Street. Consistent with his argument rejecting the attribute of traditional building character, he says its style is at odds with the traditional vernacular or Queenslander styles predominating in the area immediately surrounding the site. It follows, in his view, that the house does not contribute positively to the visual character of the street.18 Council’s response [25] The council contends, contrary to the argument of Mr Doolan, that the subject house contributes positively to the Harrowby Street streetscape. [26] In Mr McDonald’s statement of evidence19 he incorporates photographs of each house in the street giving a description of it and its period of construction. In reliance upon 1946 Council aerial photography and its 1949 Sewerage Detail Plans, he concludes that the Harrowby Street streetscape was established prior to 1946. Of the 20 detached houses, 17 (85 per cent) are extant around the subject house. Of these houses the breakdown is:- Number of Houses Construction Era 9 1910s 5 1920s 2 1930s 1 1940s 3 post-1946 Of the 20 current houses in Harrowby Street 19 are in a Demolition Control Precinct and of those, 16 are pre-1946 houses. [27] Mr McDonald relies on the following in support of the Council’s argument:- 18 Exhibit 1(a) par 17. 19 Exhibit 1(d). -- 12 of 13 -- 13 (a) The important features of the site outlined in paragraph [12] (g) above; (b) Harrowby Street was well established prior to 1946 and the majority of the houses in the street, including the subject house, were built prior to 1946; (c) The house is substantially intact and, in his view, continues to contribute to the character of Harrowby Street as it has done since it was constructed. He considers the house, in association with the other pre- 1946 building styles in the street, exemplifies the various pre-1946 periods during which the street developed. (d) The difference between the subject house and most of the others in the street should be seen as a positive, not a negative, serving to reinforce the fact that Brisbane’s traditional building character consists of a range of building styles.20 [28] In support of the above, Mr McDonald’s summary of the character of Harrowby Street is that it is generated by detached houses expressing a range of recognized Brisbane house styles from 1900 to 1946 set in an attractive streetscape of established gardens and street trees. As to the three post-1946 houses, they are, in his view, generally consistent with the prevailing pre-1946 architectural themes in the street and complement the pre-1946 character of the street.21 Mr.McDonald expressed the view that Harrowby Street was one of the most intact traditional streetscapes that he had ever encountered.22 [29] In further support, in Mr McDonald’s view the subject house is a legitimate contributor to the visual character of the street being one which strongly expresses traditional building character generated by a range of 20 th century house styles. In his view, the fact that the subject house is the only building of its style in the street does not diminish its positive contribution to the visual character of the street, but rather reflects both the relative newness of the style and the relative dearth of new building at the time of its construction. [30] Mr McDonald’s conclusion is that, as a result of the positive contribution made by the house to the visual character of the street and its traditional character, its demolition would help to destroy rather than to protect the traditional character of the Demolition Control Precinct and to that extent would be in conflict with the Demolition Code. Conclusion re contribution to visual character of the street [31] As with the first issue I prefer the evidence of Mr McDonald in relation to the contribution of the house to the streetscape of Harrowby Street. Accordingly, I find that the house does contribute positively to the visual character of Harrowby Street. Order [32] The effect of my findings is that the appeal is dismissed. 20 Exhibit 1(a) par 17.2. 21 Exhibit 1(b) par 4.7. 22 Transcript 1.19.1-10. -- 13 of 13 --