Berlese v Brisbane City Council [2002] QPEC 73 [2003] QPELR 330

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Berlese v Brisbane City Council [2002] QPEC 073 PARTIES: IVANO BERLESE Appellant v Brisbane City Council Respondent FILE NO/S: P&E Appeal No.2361 of 2002 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 17 December 2002 DELIVERED AT: Brisbane HEARING DATE: 21 November 2002 JUDGE: Quirk DCJ ORDER: I order that the appeal be dismissed CATCHWORDS: COUNSEL: Mr R Wilson (agent), for the appellant Mr B Job, for the respondent SOLICITORS: Brisbane City Legal Practice for the respondent [1] This appeal is against the respondent’s refusal of an application for a development permit for building work which involved the demolition of a dwelling house at Annerley. The house is located on the northern side of Albert Street near its western end. No proposal for further development of the site was part of the application. [2] There is no dispute that the house was erected prior to 1947. It is a typical high set dwelling of wooden construction with a hip and gabled form of iron roofing. Some -- 1 of 7 -- 2 alterations have been made to it and these include the enclosure of what was once the front verandah. The structure is in a relatively sound state of repair. [3] The application was lodged after City Plan had come into force. Under that instrument the application called for “notifiable code assessment”. Forty-four submissions were made in response to public notification. On 15 May of this year the application was refused on the basis of non-compliance with the Demolition Code and conflicts with any Desired Environmental Outcome for the Low-Medium Density Residential Area which requires that pre-1947 buildings are largely retained. In the Council’s reasons it was emphasized that the subject house contributes positively to the traditional built character of Albert Street and that its demolition would constitute an important loss of character and amenity in the street. [4] The Statement of Intent for the Low-Medium Density Residential Areas provides: “Parts of the Low-Medium Density Residential Area are included in the Demolition Control Precincts. At these locations pre-1946 will be retained and new development will reflect pre-1947 architectural character. Where feasible, development in Demolition Controlled Precincts will incorporate pre-1946 at the front of the new development”. Included in the Desired Environmental Outcome for the area is the following statement: “In Demolition Controlled Precincts, pre-1946 buildings are largely retained and new buildings reflect many of the precincts architectural themes”. [5] Section 3.5.13 of the Integrated Planning Act provides for the manner of assessment of a code assessable application. The following sub-paragraphs appear relevant: -- 2 of 7 -- 3 “(2) The assessment manager’s decision may conflict with an applicable code if there are sufficient grounds to justify the decision, having regard to the purpose of the code. (3) However ……. (b) for assessment against a code in a planning scheme – the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area. (4) The assessment manager may refuse the application only if the assessment manager is satisfied – (a) the development does not comply with the applicable code; and (b) compliance with the code can not be achieved by imposing conditions.” [6] The requirements of the Act are reflected in City Plan. Administrative provisions regarding the application of codes are found in s 1.1 of Chapter 5. Importantly the following passages appear: “(a) the ‘purpose’ of a code explains what the code seeks to achieve; (b) a proposal that complies with all Acceptable Solutions will be approved; (c) 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 Criterion has been met”; (d) the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. Although there may be other ways of complying with Performance Criteria whilst still meeting the purpose of the code, it is the responsibility of an applicant to demonstrate how an Alternative Solution complies with the Performance Criteria of the code; and (e) ‘a proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts’”. [7] In this matter the applicable code is the Demolition Code the purpose of which is stated to include: “• protect the buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity; and -- 3 of 7 -- 4 • 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 1946.” (s. 3 of the Code) [8] That the elements of “traditional building character” are identified in s. 4 of the Code and are made up of the following: “(a) street context – whereby traditional subdivision patterns are reinforced by the traditional building form of a single level house elevated on stumps, resulting in a reasonably uniform scale with uniform spacing between houses; (b) building form and scale – the predominant traditional building form of pre-1946 housing is described as being a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas underneath generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandahs. Roof forms are medium pitched pyramids, hips or gables (emphasis added); (c) materials and details – the explanation provides that the ‘... character of the older suburbs (is) influenced by elements such as eaves, sunhoods, verandahs, lattice screens and batten panels ...’. Character is also derived from the limited range of materials which were available at the time of construction, which provides a unifying theme of painted timber walls and corrugated steel roofing; and (d) setting – the traditional setting of houses in the older suburbs involves a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and a single width driveway.” [9] The relevant performance criteria and acceptable solutions are found in s. 5 of the Code. Each of the three criteria which appear most relevant in this case are found in P1 and have corresponding Acceptable Solutions set out in the relevant table. The first performance criteria is that: “(The building) must not represent ‘traditional building character’”. The corresponding acceptable solution appears to be: -- 4 of 7 -- 5 “The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946”. [10] Notwithstanding some semantic argument to the contrary, it appears clear on the evidence that the subject dwelling represents “traditional building character” as defined in s. 4 of the Code. Even though the verandah has been enclosed it could not be seriously suggested that it “has been substantially altered” and/or does not have the appearance of being constructed in or prior to 1946. On this point I have no hesitation in accepting the evidence of an experienced architect called by the respondent, Mr Scott, who was firmly of the view that the house was “clearly a building of traditional character” within the meaning of the Code. [11] In the appellant’s case an attempt was made to demonstrate that the house was not a “remarkable building worthy of retention”. The qualification “remarkable” is not one that is found within the Code. Nor is it, in my view, essential that a particular building should exhibit each and every one of the features identified in the Code’s explanation of “traditional building character”. On the evidence given a finding that the subject dwelling does not represent “traditional building character” is simply not open. [12] The second of the performance criteria found in P1 is that: “(The building) must not be capable of structural repair”. The corresponding acceptable solution is: “An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound”. On the evidence given these matters have no application in the present case. -- 5 of 7 -- 6 [13] The third of the relevant performance criteria is that: “(The building) must not contribute positively to the visual character of the street”. The corresponding acceptable solutions are: “Demolition of the building will not result in the loss of traditional building character within the street; or The street has no traditional building character”. [14] Again, notwithstanding some debate on the matter, it is abundantly clear on the evidence that this house contributes positively to the visual character of Albert Street in the sense that the street enjoys “traditional building character”. It is true that a good deal of re-development has taken place in the street but the evidence indicates that, of the fourteen buildings in the street, ten are pre-1946 dwellings. Some of these have undergone alteration but remain recognisable as “timber and tin houses” which reflect the traditional building character identified in the Code. [15] Mr Wilson, who represented the appellant drew attention to a group of houses which are located in Sarah Street which look up Albert Street and do not constitute “traditional building character”. However I accept Mr Scott’s opinion that these houses (and those within Albert Street which are the results of re-development) do not rob Albert Street of such “traditional building character” as it enjoys and to which the subject dwelling contributes. [16] Another point made by Mr Wilson was that to refuse this application would stand in the way of any substantial opportunity to re-develop the site and that this could be done in a way that is sympathetic with the notion of retaining “traditional building character”. There may be something in this point but it does not deal in any effective way with the specific requirements of City Plan. -- 6 of 7 -- 7 [17] Mr Wilson appeared to have a number of philosophical difficulties with the provisions of City Plan. Such requirements as these are often the focus of debate but the formulation of such provisions is the business of the elected planning authority. It is not for the court to consider whether differing planning strategies might have more appeal. [18] Mr Wilson also raised the possibility of unreasonable disadvantage to the owners of the subject land who, it is said, bought the land because of its development potential in the 1980’s. Again these matters are obviously unfortunate particularly for Mr Wilson’s clients. However the court must decide these matters against the background of relevant statutory planning controls. A departure from the strategies which these controls reflect is not justified simply because of some disadvantage to the landowner. [19] On the whole of the evidence I am satisfied that to allow this application would not be consistent with the performance criteria spelt out in City Plan and that it has not been shown that such consistency, if not be achieved by the acceptable solutions identified in City Plan, could be attained in some other manner proposed by the appellant. In the circumstances I find that the onus of showing that the application is one that should be approved has not been discharged and that the appeal must be dismissed. -- 7 of 7 --