Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPEC 44 (2006) QPELR 601

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Craig Securities (No 2) Pty Ltd v Brisbane City Council [2006] QPEC 044 PARTIES: CRAIG SECURITIES (NO 2) PTY LTD Appellant v BRISBANE CITY COUNCIL Respondent FILE NO/S: BD1132 of 2005 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 12 May 2006 DELIVERED AT: Brisbane HEARING DATE: 27 & 28 March 2006 JUDGE: Griffin SC ORDER: Appeal dismissed CATCHWORDS: DEMOLITION CODE – DEMOLITION CONTROL PRECINCT - WORDS AND PHRASES MEANING OF “STRUCTURALLY SOUND” - Where appellant purchased pre 1946 house – where approval needed to demolish – whether approval should be given Integrated Planning Act 1997 (Qld) s 3.5.13 Gould v Brisbane City Council [2001] QPELR 77. Jordan v Norfolk County Council 1994 1 WLR 1354. Melbourne Corporation v Barry (1922) 31 CLR 174. Pearlman v Harrow School 1979 1 QB 56. Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304. Wik Peoples v Queensland (1996) 187 CLR 1. ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352. COUNSEL: Mr D Gore QC for the appellant -- 1 of 15 -- 2 Mr M Hinson SC with Mr B Job for the respondent SOLICITORS: Home Wilkinson Lowry for the appellant Brisbane City Legal Practice for the respondent [1] This is an appeal which concerns the refusal by the respondent of a development application for the demolition of a dwelling located at 34 Warmington Street, Paddington, which is a pre-1946 house and subject to the provisions controlling demolition within a Demolition Control Precinct. [2] The subject property is subject to s 3.5.13 of the Integrated Planning Act (IPA) and the development application which is the subject of the appeal requires code assessment. [3] The development application must be approved if it complies with applicable codes and an approval may conflict with the applicable code if there are enough planning grounds to justify approval, having regard to the purpose of the Code1 . The dispute which arises in these proceedings is as a consequence of performance criterion P1 of the Demolition Code and the corresponding acceptable solution. P1 states: “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.” [4] It is common ground that the subject house represents a traditional building character and that it contributes positively to the visual character of the street. In order for the appellant to succeed on this appeal, the appellant must satisfy the court that in accordance with acceptable solution AS1.2; “an engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound”. The central issue for 1 Section 3.5.13 (2) and (3) of IPA -- 2 of 15 -- 3 determination is whether the building is or is not reasonably capable of being made structurally sound. The Interpretation of the Demolition Code [5] A number of issues have been raised by the appellant in relation to the interpretation of the Code which include the meaning and extent of what is “structurally sound” and the test of reasonableness associated therewith. It is common ground between the parties that the dwelling is presently not structurally sound and, in fact, is not habitable. Much of the evidence was concerned with the engineering reports and the extent to which each determined that structurally soundness could ultimately be achieved, including questions of the complexity and cost of that work. [6] There is a clear and rational relationship between the performance criterion of the building not being capable of structural repair and the acceptable solution allowing for demolition if an engineering report demonstrates that the building is structurally unsound and not reasonably capable of being made structurally sound. It is noted that the performance criterion speaks in terms of “structural repair,” whereas the acceptable solution uses the phraseology “structurally sound”. [7] Some significance was placed by the appellant on the difference in phraseology used, amongst other things, to support a submission that, when considered in the context of the Demolition Code, considering the philosophy promoted by that Code, the question of structural soundness is equivalent to “repair” and comprehends more than mere engineering considerations, taking into account the entire “fabric” of the house with such repairs contemplated under the Code as bringing the house to a “habitable” standard. -- 3 of 15 -- 4 [8] The respondent contends for a much narrower interpretation, relying, as it does, on the plain words and consequent meaning of the Code to indicate no more than engineering considerations. The relevance of all of this as will be seen below is that as the argument is advanced, the costing to bring the house to structural soundness by means of structural repair is a necessary ingredient in considering the question of reasonableness. [9] Furthermore, the appellant argues that it is simply meaningless, in accordance with a broad and sensible view applied to the Demolition Code, that a house be merely structurally sound but not habitable, for this cannot have been the intention of what are submitted to be onerous provisions. [10] Acceptable solution A1.2 is not absolute. The Code specifically provides for a consideration of the reasonableness in making the structure sound. Whatever may be the extent of structural soundness, the test to be applied, in my view, is an objective one2 . [11] There is no doubt that the effect of the Demolition Code is to restrict a landowner’s right to demolish buildings identified by the Code. Such legislation restricting rights, as this Demolition Code purports to do, must express that interference clearly or by “necessarily implication”3 . [12] As was said in Wik Peoples v Queensland (1996) 187 CLR 1 at 155 per Gaudron J her Honour spoke of “the general and well-settled rule of statutory construction which requires that ‘clear’ and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation.” 2 See Gould v Brisbane City Council [2001] QPELR 77. -- 4 of 15 -- 5 [13] Where the language of the statutory instrument is regarded as problematic, unclear or contradictory, the approach taken by courts is described by Thomas J in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360 where his Honour said: “To arrive at the so-called proper construction of such provisions involves a good deal of guess work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach or the approach which seems to make most sense out of provisions which may be contradictory as well as obscure … the fact that a court might ultimately place a construction on such provisions which will thereupon become their proper construction (at least until a court of higher authority says otherwise) does not mean that town planning experts must be taken to be able to know in advance what that construction will be with respect to provisions of this kind. Until an authoritative construction is given to doubtful provisions, many options are open, and different minds may take different views.” [14] On a fair reading of both the performance criterion and the acceptable solution there does not, on the face of it, appear to be any lack of clarity or precision. The term “structural repair” is not, in my view, inconsistent with the notion of “structural soundness”. The “structural repair” is the means by which structural soundness is effected. On the face of it, it does not comprehend anything broader than the notion of structural soundness. [15] “Structural soundness” (and the phrase “structural repair”) are not defined. “Structure” has a variety of meanings including “a manner in which a building or organism or other complete whole is constructed, supporting framework or whole of the essential parts of something make construction.”4 The City Plan, the fundamental planning document relevant to this appeal, reveals an intention to retain character dwellings of the type involved in this appeal. That is so in this case because it is common ground the dwelling is included in the Character Residential 3 Melbourne Corporation v Barry (1922) 31 CLR 174 at 206 4 Concise Oxford Dictionary 5 th Ed -- 5 of 15 -- 6 Area. The general residential area’s provisions of the City Plan indicate that an important characteristic of the city’s older suburbs is the “timber and tin” architecture. Demolition Control Precincts are locations in the older suburbs where pre-1946 housing is still dominant. Specific provisions apply in this Demolition Control Precinct to preserve and complement much of this architectural character5 . [16] It is tolerably clear from an examination of the philosophy of the retention of such buildings and the Demolition Code itself that the focus is upon the building. No mention is made of the purpose to which the building is put. [17] The submission made by the appellant is that in considering the question of the retention of such a building in terms of structural soundness, regard must logically be had to the use to which the building is put. It is a submission that is both logical and attractive. Those considerations, however, are not determinative in any way in considering the interpretation of the subject provisions. [18] The notion of what “structure” includes has been the subject of much legal pronouncement. In Pearlman v Harrow School Geoffrey Lane LJ said6 : “Structural in this context means I believe something which involves the fabric of the house as opposed to the provision merely of a piece of equipment. It matters not whether the fabric in question is load- bearing or otherwise. If there is any substantial alteration, extension or addition to the fabric of the house the words of the schedule are satisfied. I have no doubt that the works done here ‘amount to’ such alteration or addition.” [19] In that case his Lordship was referring to a landlord and tenant action which involved consideration of whether rateable value of the house should be adjusted according to quite specific English legislation and the question of improvements, which involved a gas heating system, affected the rateable value of the premises for 5 Chapter 3 page 27, section 5 6 1979 1 QB 56 at 72 -- 6 of 15 -- 7 the purpose of that legislation. That authority relied upon by the appellant is of limited assistance, for it deals with what additions to a property may be regarded as becoming, after the addition, a fixture within the structure. [20] Many such statements as to the meaning of “structural” abound. In Pearlman7 Lord Justice Eveleigh approved the notion of structural as being “appertaining to the basic fabric and parts of the house as distinguished from its decorations and fittings”. In my view, considerations of whether a house is habitable or not turn rather on questions of the fittings and decorations rather than upon the essential structure of the house. [21] Ultimately it is necessary to have to resort to the wording of the Code in this case. The words are clear and unambiguous. It is appropriate in legislation such as this to adopt a purposive approach. Such an approach is traditionally and appropriately taken in planning legislation of this kind. [22] The phrase which falls for consideration is “structural soundness”, not any consideration of the idea of what a structure comprehends. Each word of that phrase informs the other. To assist in understanding the phrase in its context it is appropriate to refer to the acceptable solution which contemplates structural soundness in the context of an engineering report being submitted, demonstrating the lack of that particular quality. This, in my view, is an important indication as to the proper interpretation of that phrase. It connotes therefore, in my view, that in an engineering sense the fundamental attributes of the relevant structure are present in an acceptable condition. Such was the approach taken by the court in describing the nature of soundness in Gould. 7 1979 1 QB 56 at 79 -- 7 of 15 -- 8 [23] Furthermore, the notion, in my view, of structural soundness does not require or comprehend structural “perfection”. The Code aims, in my view, at a condition of engineering safety, rather than a complete and faithful restoration of the building to its original condition. “Soundness” does not contemplate or require perfection in repair. [24] It should be noted that, in reference to Gould’s case, the issues which arose in that case were under a different 1987 town planning provision. [25] As to the question of reasonableness, the structural soundness of the building is not a requirement that is absolute. The making of the structure or building structurally sound involves a consideration of the reasonableness by which it is capable of being made so structurally sound. Not surprisingly, the “reasonableness” or “reasonably capable” considerations are not defined or enumerated. Equally, it is not surprising that there has been much judicial consideration given to similar phraseology in a wide variety of cases. [26] It is trite to say that the reasonableness, in considering capability of structural soundness, will vary from case to case and will depend upon a variety of factors. The very nature of testing reasonableness itself will vary with the circumstances of each case and it is impossible to set boundaries or attempt specific tests. “Reasonable” is a word of common usage and should, in this legislation, bear its ordinary, everyday meaning. In fact, it is a function of the notion of reasonableness that it must vary depending upon the particular circumstances to which it is applied. -- 8 of 15 -- 9 [27] In Slivak v Lurgi (Australia) Pty Ltd8 Gaudron J dealt with the phrase “reasonably practicable” in the context of safety provisions in Occupational Health and Safety Legislation: “The words ‘reasonably practicable’ have, somewhat surprisingly been the subject of much judicial consideration. It is surprising because the words ‘reasonably practicable’ are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless three general propositions are to be discerned from the decided cases. • the phrase ‘reasonably practicable’ means something narrower than ‘physically possible’ or ‘feasible;’ • what is ‘reasonably practicable’ is to be judged on the basis of what was known at the relevant time; • to determine what is ‘reasonably practicable’ it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.” [28] In Jordan v Norfolk CC 9 , in the judgment of Sir Donald Nicholls in considering a case of trespass to land and a requirement to reinstate the land “so far as reasonably practicable” it was said: “So far as reasonably practicable, in paragraph 8 sufficiently general for it to embrace matters additional to the physical feasibility of planting replacement trees of the same maturity. In this area there is very little nowadays which is not physically feasible if enough money is spent. Hence, in this context the phrase is apt to include financial considerations.” [29] In the context of structural repair to a “sound” standard, the reasonableness of the repair work must not only be considered in the light of the physical ability to carry out that work, but also considerations of complexity and cost in the carrying out of that work. [30] It was argued on behalf of the appellant that, in considering the question of reasonableness, the evidence of the accountant, Mr Whitelaw, should be accepted and given appropriate weight. That is to say, the cost 8 (2001) 205 CLR 304 at 322-323 -- 9 of 15 -- 10 associated with the making of the building structurally sound, should be viewed and considered against the broader background of other financial considerations associated with dealing with the land. These included removal of the house, allowing the property to remain as it presently stands, subdividing the property and replacing the present dwelling with either one single dwelling or, in subdividing the property, replacing the single dwelling with two new dwellings. All of this was amplified, to some extent, by the witness Degn, a real estate agent who had some personal knowledge of the subject property and relevant experience in the area as a real estate agent. Reasonableness, it was submitted by the appellant, was to be judged, amongst other things, by reference to that broader background of information. [31] Whilst it is clear enough that considerations which involve the costs of the actual repair work to structural standard are a vital component, in testing reasonableness there is no warrant whatsoever, in my view, for extending the issues under consideration to include those broader financial considerations argued for by Mr Gore. The legislation is concerned with preserving character housing. If, as a result of its operation, a particular landowner is disadvantaged financially in terms of the manner in which property may be disposed of in a variety of ways, that is a consequence of the provisions themselves and to this end, as I have found, they are perfectly clear, precise and unambiguous. The Evidence [32] In considering the extent to which a building may be made “structurally sound”, it is noteworthy that the Code does not provide, directly or, in my view, even by 9 1994 1 WLR 1353 at 1357 -- 10 of 15 -- 11 inference, a requirement that that standard of structural soundness meet present-day building codes and standards10 . [33] The matter before me is not a buildings dispute and I am therefore not persuaded that it is appropriate, nor necessary, to deal with the repair items as documented by both expert engineers, Mr Gould (for the appellant) and Mr West (for the respondent), on an item by item basis. [34] Both witnesses were impressive and demonstrated what seemed to me to be a thorough detailed knowledge of the problems associated with the building, which included a comprehensive schedule of works (much of which was either agreed or evidenced differences only as to approach) and a professional attitude in their approach to the giving of evidence. I have no hesitation in accepting both witnesses for this is not a question of preferring the evidence of one witness to another. Each simply demonstrated that there were different approaches to the way in which the appropriate rectification to sound standard could be reached. Issues of credit in relation to the evidence of each were not in issue, in my view. [35] Mr West’s experience, as expressed in his curriculum vitae, was most impressive. His past work and experience demonstrate a very detailed knowledge and close association with the preservation of old buildings. His report, not surprisingly (Exhibit 6), reflected what I regard as an innate and sympathetic understanding for such buildings. [36] I accept Mr Gould’s evidence, for it discloses in its detail appropriate methods of dealing with the subject building, which is agreed by both parties to be presently structurally unsound. Having considered the evidence and the approaches to each 10 For example, there is no reference to wind force factors, particular sizes for members within the structure, etc. -- 11 of 15 -- 12 specific item, required to be prepared by both West and Gould, in each case Mr West provides a satisfactory solution leading to structural soundness not only of each item but of the building comprehensively which is perfectly adequate to meet the appropriate standard of “structural soundness”. Mr West expressed the opinion in this way in his report, exhibit 6; “I find the house is structurally unsound, but reasonably capable of being made structurally sound. Except for the verandah roofs, virtually all the framing sizes and fixings are adequate for strength. The structure is generally in good condition except for a few small areas: • The Front Verandah, Rear Stairs and Bathroom have been exposed to water; • Bedroom 2 and part of the Living Room East have borer damage in the floor. Replacement of these elements is just part of routine house maintenance; it does not suggest that the original design or construction was defective in any way. The Front Verandah posts have a 2% inwards lean; but all other walls, posts and stumps are still close to vertical. Differential settlements are relatively small for a traditional house. My schedules (minimum works, and extra works) include: • All legally-required structural repairs and strengthening; • Partial upgrade for wind loads, which is not legally required; • Improved termite-proofing, which is not legally required -- 12 of 15 -- 13 • Non-structural items that will significantly improve the appearance of the house; These few works would pose no difficulties for a Builder experienced in old buildings, and the structure would require no major maintenance for several decades.” [37] I accept that the approach by Mr West will render the building structurally sound. [38] The result of Mr Gould’s repair work will also render the building structurally sound. This is not however, on the face of the evidence, incompatible at all. Mr West’s approach might properly be described as a more conservative approach to the individual and global solution necessary than the approach of Mr Gould. It is also far less costly. For example I prefer the solution offered by Mr West, as to minor levelling work of the house rather than the complete restumping proposed by Mr West. Likewise I prefer the roofing solution proposed by Mr West which does not involve complete replacement of the roof. There is undoubted corrosion of the roof internally. Mr West inspected that roof during a particular rainy period in February 2005, and in fact inspected it during rain. He saw no sign of moisture. The roof according to Mr West’s solution will not have an appropriate cyclone rating by today’s standards, but as I have said, the Code does not require that. The solution proposed by Mr West to the front veranda posts (and associated railings) and the back veranda floor, (and another area of contention between the two experts) is the solution which I accept and on Mr West’s evidence, it is quite appropriate to meet a sound structural standard. [39] A large part, in financial terms at least was devoted by Mr Gould to such items that in my view are not clearly structural in the sense used in the Code. These include, for example, louvres and blinds to verandas, painting, bathroom and kitchen fittings, -- 13 of 15 -- 14 rewiring and others, the subject of part 15 of Mr Gould’s schedule of works. I have not attempted to enumerate each item. [40] As I have already said the cost of the work, is a relevant consideration. Quantity surveyors engaged by each party assigned a cost to works proposed by the engineers. Ultimately exhibit 9 was tendered and amended by submissions by the respondent which I accepted at the end of the trial and which set out substantial agreement as to the quantity surveyors costs of the work. To these costs it is appropriate to add costs for builder’s margins, and other exigencies as well as GST. A broad analysis of that document shows that the differences between respondent and appellant in terms of costings for structural repair are approximately $32,000 (respondent) and $53,000 according to the appellant’s case. [41] It is unnecessary for me to make a finding in the specific dollar terms of the costs of the structural work. However, on the evidence it would seem to be in the region at most on the appellants case of $53,000. In any event the difference between the ultimate figures of Mr West and Mr Gould is approximately $20,000 and even on Mr Gould’s figures, should I have accepted them, I would regard such a cost as a relatively moderate cost. [42] In considering the question of reasonableness however, the cost of the work should not be judged in isolation. Set against the evidence of the real estate agent, Mr Degn, and the accountant, Mr Whitelaw, the costs involved qualifies in my view as modest indeed. [43] I am satisfied that the building can be made structurally sound. Furthermore I am of the view, having regard to the cost of the work, together with other relevant considerations including the complexity of the work and the fact that it is quite -- 14 of 15 -- 15 feasible to carry out that work, that the building is reasonably capable of being made structurally sound. [44] The Appellant has not demonstrated that the building is one which is structurally unsound and not reasonably capable of being made structurally unsound. I dismiss this appeal. -- 15 of 15 --