Armstrong v Brisbane City Council [2003] QPEC 7 [2003] QPELR 475

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Armstrong v Brisbane City Council [2003] QPEC 007 PARTIES: PETER STUART ARMSTRONG & WENDY ANN ARMSTRONG Appellant BRISBANE CITY COUNCIL Respondent FILE NO: 5704/2001 PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court Brisbane DELIVERED ON: 21 March 2003 DELIVERED AT: Brisbane HEARING DATE: 12, 13 & 14 March 2003 JUDGE: Newton DCJ ORDER: Appeal dismissed CATCHWORDS: LOCAL GOVERNMENT – TOWN PLANNING – Application to demolish pre 1946 dwelling house at Bowen Hills - whether proposal fails to comply with the Demolition Code – whether building is not structurally sound and is reasonably capable of being made structurally sound – whether the building contributes to the traditional character of the area and its demolition would adversely affect that character – whether the building is important to the streetscape and its demolition would adversely affect that streetscape Cases referred to: Berlese v Brisbane City Council (2002) QPEC 73 Gould v Brisbane City Council [2001] QPECR 77 COUNSEL: Mr M Rackemann – Respondent -- 1 of 17 -- - 2 - Mr P Armstrong – Appellant in person SOLICITORS: Brisbane City Legal Practice – Respondent [1] This is an appeal against the respondent’s refusal of an application to demolish a pre-1946 dwelling house at Bowen Hills. The address of the premises is described as 40-42 Boyd Street, Bowen Hills, the real property description of which is Lots 12 and 13 on SL 5982. No proposal for further development of the site was part of the application. [2] The decision notice set out the grounds for refusal in terms that the proposal failed to comply with the Demolition Code in the following respects:
the building is not structurally sound and is reasonably capable of being made structurally sound;
the building contributes to the traditional character of the area and its removal or demolition would adversely affect that character and the amenity of the area; and
the building is important to the streetscape [and] its removal or demolition would adversely affect that streetscape and amenity of the street. [3] The issues in the Appeal, then, may be broadly summarised as relating to character and structural soundness (including the capability of making the building structurally sound). [4] The subject site generally slopes from the western frontage to the eastern boundary and has a fall of approximately 11m. The site adjoins the “Our Lady of -- 2 of 17 -- - 3 - Victories Catholic Church – White Temple of Peace”, which is a Heritage Listed Place. The site has extensive views of the Brisbane River and adjacent suburbs. It has a road frontage of approximately 26m to Boyd Street, which is classified as a local access street and a frontage of approximately 48m to Dunlop Lane. [5] The general locality is a residential neighbourhood located on a local access cul- de-sac. Boyd Street is characterised by single detached houses and several Heritage Places including Cintra House and the previously mentioned church. Housing styles and ages are mixed with some pre-1946 buildings remaining in close proximity to the subject site. [6] The application for development approval was made in September 2001 pursuant to the provisions of the Integrated Planning Act (IPA) and the Brisbane City Plan 2000. Under the City Plan, the subject land is included in the Low-Medium Residential Area, is within a Demolition Control Precinct and also falls within the Residential Village Precinct under the Bowen Hills Local Plan. [7] Under the Town Plan pre-1946 buildings in Demolition Control Precincts are largely retained (Chapter 3, page 32) pursuant to the Desired Environmental Outcomes for the Low-Medium Density Residential Area. The Level of Assessment Table for the Low-Medium Density Residential Area provides that the demolition or removal in the Demolition Control Precinct is subject to notifiable code assessment with the applicable code being the Demolition Code. The Bowen Hills Local Plan also provides that the demolition or removal of a -- 3 of 17 -- - 4 - building constructed prior to 1946 (and not being a Heritage Place) is subject to notifiable code assessment against the Demolition Code. [8] It is the Demolition Code, then, which is the applicable code against which the development is to be assessed (Section 3.5.4 of IPA). The application may only be refused if the development does not comply, or can not be made to comply by the imposition of conditions with the Demolition Code (Section 3.5.13 (4) of IPA). [9] The Demolition Code includes in its purposes the protection of buildings that give the residential areas in the Demolition Control Precinct their traditional character and amenity. It further seeks to ensure the preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed or established in or before 1946. The Code allows the demolition or removal of post-1946 buildings or structurally unsound buildings. [10] Part 4 of the Demolition Code provides an explanation of traditional building character in the following terms: “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 20m frontages respectively. This pattern was reinforced by the traditional building form of a single level house elevated on stumps. This created a reasonable 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 . The sense of scale of a street can be diminished if buildings are introduced that significantly accede the surrounding building height, present large unarticulated facades to the street, or interrupt the rhythm of stepping roof lines in a sloping street. Building form and scale The predominant traditional building form of pre-1946 housing is a solid core with attached or integrated verandas 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 verandas. Roof forms are medium pitched pyramids, hips or gables. -- 4 of 17 -- - 5 - Building form can detract from the character of the street if it conflicts with the established patterns of roof shape and pitch, their relationship between floor and ground levels, and the traditional concept of lightweight verandas attached to a solid core. Materials and details The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandas, 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 landscape. They make an appropriate response to the local climatic conditions of strong sun and high rainfall. The traditional character of a street can be diminished by styles that do not incorporate shade-forming elements and that present a flat façade to the street. These styles also have poor environmental qualities. Setting The tradition setting of houses in the older suburbs is a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and single width drive way. The setting of new buildings can detract from the character of a street if garages dominate, or if fencing, orientation or setbacks conflict with the established settings.” [11] The performance criteria and acceptable solutions are set out in a table in Part 5 of the Demolition Code. The performance criteria provide a statement of the outcome that the acceptable solution must achieve. A proposal not complying with an acceptable solution must provide sufficient information to demonstrate how the corresponding performance criteria have been met. For code assessment a proposal that complies with all acceptable solutions will be approved (chapter 5, p 3). The relevant provisions in this case are Performance Criteria 1 and the corresponding acceptable solutions which are in the following terms: -- 5 of 17 -- - 6 - “Performance Criteria Acceptable Solutions 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 A1.1 OR A1.2 The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound OR Note: “Traditional Building Character” A1.3 Demolition of the building will not result in the loss of traditional building character within the street is described in Section 4 of this Code OR A1.4 The street has no traditional building character” Traditional Building Character [12] The character of the building has been assessed by Mr Callaghan who testified on behalf of the appellant and by Mr Kennedy who was called by the respondent, both of whom are architects experienced in renovating and restoring heritage and old Queenslander-style dwelling houses. Mr Callaghan regrettably revealed a bias against the powers of the local council under the Town Plan to restrict development of heritage and pre-1946 dwelling houses. His evidence included the following passage: “The reports claim that the house could be levelled and restumped. This is not disputed but I would argue that it is not reasonable under any objective assessment, given the subsequent remedial work that would have to be undertaken to bring the house back to an acceptable condition. It is further not reasonable that an individual property owner of long standing should be prevented from developing such a property because of this local government’s unreasonable political viewpoint. The applicant has already lost his rights under the previous town plan to fully develop his site to its full potential by the Council’s delaying tactics in this application. He has further been prevented from removing or demolishing his other house on the adjoining site. Preventing this house from being demolished because of the Council’s belief that the agreed and accepted poor state of structural soundness can easily and reasonably be remedied is unreasonable.” -- 6 of 17 -- - 7 - [13] Mr Kennedy described the house at 40 Boyd Street as a traditional single-level Queensland timber dwelling elevated on stumps. He noted that the stumps are quite high on the eastern side of the house and are composed of timber piers sheeted in chamferboard. The spaces between the piers are in-filled with timber lattice typical of the period. The stumps and lattice give the appearance of light- weight supports to the upper floor. Mr Kennedy observed that the subject house is large and comprised of a solid core of rooms serviced by a central passageway, with a large integrated veranda running along the eastern side and extending part way along the northern side which affords expansive views of the river. [14] Mr Kennedy noted that the house has a medium-pitch roof which is tiled with terracotta and has distinctive gables which are filled with battened asbestos cement sheeting. He stated that terracotta roofs were not as common as corrugated iron roofs on traditional character houses, but did occur on more expensive houses constructed between 1900 and 1925 and influenced by the Federation Style. [15] The house has been altered, mainly by its conversion into flats, and by its subsequent return to a residence. Mr Kennedy stated that the most noticeable external alterations are the enclosure of the veranda, and the addition of a large bathroom extension at the rear of the house. In his view, these alterations have not substantially altered the appearance of the building, which is easily recognisable as a pre-1946 house. Mr Kennedy concludes that the subject house displays “traditional building character” as described in Part 4 of the Demolition Code. -- 7 of 17 -- - 8 - This conclusion was not seriously challenged and I accept Mr Kennedy’s evidence in this regard. [16] Although Mr Callaghan acknowledged in his oral testimony that “It is quite clearly a pre-1946 house” he went on to query whether it is an architecturally good example. [17] It is not any part of the Demolition Code to require a pre-1946 house to be of architectural merit, nor is it necessary that the house should exhibit each of the features identified in the Demolition Code’s explanation of “traditional building character” (see Berlese v Brisbane City Council (2002) QPEC 73). On the evidence before me the subject dwelling clearly represents “traditional building character”. Streetscape [18] Although in his written report Mr Callaghan did not consider streetscape, in his oral testimony he stated that he did not rate the streetscape in Boyd Street as particularly important. He continued: “There have been a couple of newer houses built in that street which seems to be that ubiquitous Tuscan style that everyone is up in arms about, or some people seem to be. The Council certainly is. They exist in the street. It is a mix of styles. As an architect, I look at it and I am not impressed either way. I mean, it doesn’t strike me as being a particularly good street or good example, but, you know, these sorts of things.” -- 8 of 17 -- - 9 - [19] When asked to comment on the streetscape existing in Dunlop Lane, Mr Callaghan stated: “It is reasonable, but it is a mix of styles. There is no sort of pervasive feeling of a set piece in my opinion. They are different roof materials, different wall materials. Several of them have been built in underneath, or a couple of them have been built in underneath with concrete blocks which are completely out of context. There is not a great deal of sensitivity in the set of houses that is there, albeit there are only four of them.” [20] With respect to the streetscape of Boyd Street, there was no disagreement by Mr Kennedy with the view expressed by Mr Callaghan. As he points out, the house at 40 Boyd Street is not easily visible from the street except for the disused garage. Thus, the house makes little, if any, contribution to the Boyd Street streetscape. [21] However, in relation to the streetscape of Dunlop Lane, Mr Kennedy noted that there are four traditional character houses in that street which has a typical Brisbane hillside streetscape with larger houses stepping down the slope. The houses are said to be relatively intact and to display the hallmarks of traditional character houses, notwithstanding the roof sheeting on two of them has been replaced with tiles. All the houses in Dunlop Lane were constructed prior to 1946. Mr Kennedy considers that 40 Boyd Street is an integral part of this streetscape, and contributes positively to its visual character. I accept that the removal of the subject house would result in an unacceptable loss of traditional building character from Dunlop Lane. This is particularly so as it is one of only four houses which comprise the streetscape. Accordingly, neither acceptable solution A1.3 or A1.4 -- 9 of 17 -- - 10 - has been established to satisfy the performance criteria P1 that the building must not contribute positively to the visual character of the street. Structural Repair [22] The structural engineers agreed that the house is in need of repair including structural repair. This situation has come about as a direct result of a decision taken by the appellant in 1994 to restrict maintenance to that of an essential nature only. That position has continued notwithstanding that, since 1997, Mr and Mrs Armstrong have used, and continue to use the house as their family home. The question is whether the condition of the house warrants its demolition pursuant to the Demolition Code. [23] The relevant performance criterion asks whether the building is “capable of structural repair” whereas acceptable solution A1.2 requires the submission of an engineering report demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound. The appellant asserts that it would not be reasonable to require the necessary repairs to be carried out in order to make the house structurally sound. [24] In this regard the test to be applied is an objective one. The subjective preferences of an individual owner are irrelevant and form no part of the acceptable solution, nor is it to the point to consider criticism of the political justification for the inclusion of character housing controls in the planning documents. It is no part of the task of this Court to consider whether differing planning strategies might have more appeal (Berlese v Brisbane City Council (2002) QPEC 73 at para 17). -- 10 of 17 -- - 11 - [25] It should be recognised that the Council has a responsibility to the community as a whole in formulating its planning strategies. Provisions similar to those which currently apply with respect to the demolition of character housing have been in force for some seven or eight years and were introduced by way of amendments to the town plan which were the subject of public notification before coming into effect. Those who considered that the introduction of such provisions into the town plan resulted in their being adversely affected were able to have recourse to the relevant compensation provisions of the legislation. I note that in the present case the appellant did not seek compensation. [26] Although I acknowledge the preference of the appellant to build a new house in the area behind the existing house, the question for the Court is whether the existing building is reasonably capable of being made structurally sound. A modern building may be perceived by the appellant as being more suitable to his needs but the Court is required to consider the engineering evidence relating to structural unsoundness and reasonable capability of the house being made structurally sound. [27] Furthermore, a good part of the evidence given by the appellant’s witnesses related to the costs of a complete renovation and restoration of the existing dwelling. This goes far beyond the requirements of the Demolition Code which restrict the acceptable solution to one that considers only whether the building is not reasonably capable of being made structurally sound. If the appellant wishes, as a matter of personal preference, to undertake a full restoration then, of course, he is -- 11 of 17 -- - 12 - at liberty to do so but it does not assist the resolution of this appeal by adducing evidence pertaining to the total cost of such works. [28] The structural engineers have identified the works that need to be carried out in order to make the building structurally sound. Ultimately, Mr West was of the view that the house is reasonably capable of being made structurally sound from an engineering perspective, and this conclusion was not contradicted by Mr Bligh who expressed no opinion in this regard in his report. The situation here is in marked contrast to that in Gould v Brisbane City Council [2001] QPELR 77 where the entire structure of the house in question had long since passed beyond the point where it could, on any reasonable and competent assessment of its condition, be considered to be structurally sound. [29] There is no question that the house needs re-stumping and re-levelling. I accept that the differential settlements are of the order of plus or minus 30mm which is not excessive for a building of this type. However, there is a number of timber posts which are in need of repair or replacement. A difference of opinion emerged as to whether the concrete piers should be replaced but the engineers did agree that these are not subject to collapse. This is not a critical issue but it may be advisable to replace the piers with timber stumps to add extra bracing to the house. [30] Both engineers detected decay in the bottom plates and studs which sit on top of the dwarf wall and agreed that repairs are necessary where there is decay. Mr West and Mr Bligh differed with respect to the extent of repair work needed, but again the difference of opinion in this regard is not critical. -- 12 of 17 -- - 13 - [31] Those elements of the veranda which are currently enclosed need to be inspected and any decayed parts replaced. The flooring of the veranda was inspected by Mr West and found to be in good condition which suggests that those sections requiring replacement will not be extensive. Of course, I acknowledge the concern of Mr Armstrong that until one starts to repair the veranda one will not really know the precise extent of the decay. However, Mr West has made some allowance in his appraisal of the veranda for concealed defects and I accept his evidence that extensive replacement of parts of the veranda is unlikely. Veranda joists require securing to the bearers with joist hanger framing anchors in a small number of areas. [32] There is no disagreement between the engineers in relation to the roof overhangs which show clear signs of decay and partial collapse. These need to be repaired. Their present condition is a direct result of the decision taken by Mr Armstrong not to carry out the necessary maintenance on the house to repair and limit such damage. [33] Where rafters have come apart from the ridge board these should be reconnected following re-stumping and levelling of the house. It is also necessary to carry out some minor floor strengthening underneath the kitchen to reduce excessive bounciness in the floor. Extra support for the north bay window is required. A kink in the archway between the lounge and dining room should either be repaired or, if necessary, reconstructed. These matters are not really in contention, although -- 13 of 17 -- - 14 - some difference of opinion on the part of the builders or quantity surveyors has been expressed in relation to costings. [34] Some attention was paid during the hearing of this appeal to the north west ablutions wing which is clearly of poor design and workmanship in comparison to the house generally. As this wing was added after 1946 it may be demolished or repaired at the choice of the owner. [35] Mr Bligh’s recommendation that the dwarf wall and the western retaining wall be demolished was made on the understanding that the building was to be renovated rather than merely returned to a condition of structural soundness. In the end, he agreed in his oral evidence that the walls were not dangerous and that the cracking evident in them was unsightly but not of structural significance. Ultimately, Mr Bligh agreed that the walls need not be demolished providing the earth embankment was stabilised as suggested by Mr West by having shot-crete applied to it. The difference of opinion in relation to a suggested requirement to reinstate three areas where sections had been cut out of the walls is not of major importance. [36] I accept Mr West’s evidence that the subject house does not exhibit the problems typically found in buildings which are structurally unsound and not reasonably capable of being made structurally sound. For example, there are no extensive areas of decay. It has not been subjected to intensive white ant attack. The degree of differential settlement is not excessive. The foundations are not severely cracked and the walls are not liable to collapse. The evidence establishes to my -- 14 of 17 -- - 15 - satisfaction that where structural repair is required this can be performed relatively easily by a competent builder. [37] Mr Pope has estimated the cost of carrying out the necessary work to bring the house to a condition of structural soundness, water tight and free of maintenance and of good appearance for many years at just under $64, 000.00. The evidence of Mr West satisfies me that such work would result in the house being free of further structural defect for several decades. Mr Pope agrees that the building can be easily repaired. In his cost estimates he has allowed for the work required by the structural engineers together with repairs to the exterior of the house to return it to a condition where it can be painted so that future decay can be prevented. He has also made provision for the replacement of the bathroom in the event of the north west ablutions wing being demolished. [38] By contrast, Mr Dawson’s evidence is of limited assistance. His estimate of the cost of a full renovation ($430,949.00) is really beside the point and even his estimate of the amount required for essential repairs ($214,884.00) must be regarded as substantially inflated. This estimate includes the cost of items which are relevant to renovation works rather than to structural soundness. For example, in relation to the strengthening of the floor Mr Dawson has allowed for more extensive works that either of the engineers considered necessary. Furthermore, an allowance for almost $65,000.00 for preliminaries is, in my opinion, excessive. Mr Pope has estimated such costs at $18,185.00. The difference between the two estimates in relation to preliminary costs is largely explained by the allowance with respect to the costs of supervision and architect and engineer fees. -- 15 of 17 -- - 16 - [39] Mr Dawson has estimated supervision costs of $15,750.00 on the basis of a sixteen week period of construction requiring two visits per week with each visit lasting three hours at a cost of $45.00 per hour. On the other hand Mr Pope considers that a building job of this nature would normally be done either by the principal working on the site and requiring no supervision or by a small building firm in which case supervision costs would total $5,280.00. [40] With respect to architect and engineer fees, Mr Pope points out that the difference between the estimates comes about as a result of what would be required as a minimum for a competent building firm to complete the work (in which case the costs would be $5,000.00) and what an owner may wish to spend on professional advice (in which case the costs would be $25,000.00) I prefer the evidence of Mr Pope in preference to that of Mr Dawson in relation to costings generally. [41] I acknowledge the views of Mr Armstrong and Mr Callaghan that the spending of any money to return the house to a condition of structural soundness is unwarranted. However, their views have been significantly influenced by their opposition to that part of the town plan which gives the council the power to impose controls over the demolition of houses exhibiting traditional building character. Furthermore, I acknowledge the preference of Mr Armstrong to have a new house built on the subject site which better suits his current lifestyle needs. Neither political considerations or choices based on personal wishes form any part of the Demolition Code which is the appropriate code against which this development application must be assessed. I am satisfied that a reasonable and -- 16 of 17 -- - 17 - prudent owner of the house at 40 Boyd Street would consider that the expenditure of moneys approximating the estimate given by Mr. Pope to reinstate the house to structural soundness would be moneys wisely spent (c.f. Gould, infra at p.80). [42] I am satisfied on the evidence before me that the appellant has failed to demonstrate compliance with the appropriate code and that the appeal must, therefore, be dismissed. - - - - - -- 17 of 17 --