A&I Holdings Pty Ltd v Brisbane City Council [2002] QPEC 72 [2003] QPELR 322

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: A & I Holdings Pty Ltd v Brisbane City Council [2002] QPEC 072 PARTIES: A & I HOLDINGS PTY LTD Appellant And BRISBANE CITY COUNCIL Respondent And YURI STEVENS AND OTHERS Co-Respondents FILE NO/S: Appeal No 2031 of 2002 DIVISION: Planning and Environment PROCEEDING: Appellate ORIGINATING COURT: DELIVERED ON: 12 December 2002 DELIVERED AT: Brisbane HEARING DATE: 21-30 October 2002 JUDGE: Senior Judge Skoien ORDER: Appeal allowed on limited basis; otherwise appeal dismissed. CATCHWORDS: Proposed unit building; GFA and bulk; heritage values, traffic COUNSEL: Mr J Haydon for the appellant Mr M Rackerman for the respondent First Co-respondent in person SOLICITORS: Messrs Hemming & Hart for the appellant Messrs Brisbane City Legal Practice for the respondent -- 1 of 11 -- 2 [1] This is an appeal by A & I Holdings Pty Ltd against the deemed refusal by the Brisbane City Council of three development approvals in relation to a site which contains two lots at 86/88 Moray Street, New Farm, namely: (a) A development permit for a material change of use to use Lot 1 on RP 54179 (“Lot 1”) for the purposes of a multi-unit dwelling; (b) A preliminary approval to carry out building work, being the demolition of a pre-1946 house on Lot 1 and building work to an existing heritage house (including the construction of a new garage) on Lot 2 on RP 54179 (“Lot 2”); (c) A development permit for reconfiguring a lot by subdividing Lot 2 to create a separate allotment for a modest sized timber dwelling which was built to the side of the heritage house around the turn of the 19th/20th century. The Site [2] Lot 1 (86 Moray Street) has an area of 1,108m² and Lot 2 (88 Moray Street) has an area of 1,120m². They are both owned by the appellant. Together, they have a frontage to Moray Street of 39 metres and a frontage of 102 metres to Bowman Lane which connects to Langshaw Street and Gilbey Lane. [3] The two lots are irregular in shape and the main axis for the site is roughly aligned North to South. Lot 1 has an access strip (about 3.6m wide) to Moray Street, which runs down the western side of Lot 2. At the northern end of this access strip is a roughly square section of Lot 1 measuring about 25m x 25m, which contains about 705m 2 . Lot 1 then has another strip about 4m wide which runs north along the edge of Bowman Lane for a distance of about 60m as far as Gilbey Lane. In practice this strip, which is bitumen sealed, looks and functions as if it was part of Bowman Lane. Lot 2, which is roughly in the form of a rectangle, lies to the south-east of Lot 1 and has a frontage of about 34m to Moray Street and about 17m to Bowman Lane. -- 2 of 11 -- 3 [4] Lot 2 is currently improved by two dwellings and is listed in Schedule 1 of the Council’s Heritage Register Planning Scheme Policy as a place of cultural heritage significance. The main house (“Moana”), which faces Moray Street, is three storeys in height with a high peaked roof design that incorporates hips, gables and window openings. The building’s construction materials and elements include timber and tin, brick, battens, lattice work and verandahs. It was built towards the end of the nineteenth century and its heritage value is undoubted. [5] The second dwelling on Lot 2 is one-storey cottage that abuts the eastern boundary of the site. It is a separate building from Moana. This cottage is set back from Moray Street behind Moana’s front alignment and is not as readily visible from the street as is Moana. It is also constructed of timber, tin and brick materials and stands along the boundary of Lot 2 with Bowman Lane. It is believed that it was once the maid/servant quarters. [6] 86 Moray Street (Lot 1) currently contains a brick and stucco single story duplex building. It is not absolutely clear when it was built but finally no-one argued that it had any feature which argued for its retention. This building is located behind Moana and is not readily visible from Moray Street. The lot also has a carport/shed built to the Bowman Lane alignment. Vehicular access to Lot 1 is from Bowman Lane, to which its effective frontage is about 25m. [7] Under Brisbane City Plan 2000, Moray Street is identified as a district route, and maintains a city-bound bus route. Bowman Lane would be a low order road. As dedicated, it is only about 4m wide, although the bitumen sealed strip of 4m of Lot 1 (see para[3]) gives that section of the lane a practical width of 8m. That is the only section of Bowman Lane which allows two vehicles to pass. -- 3 of 11 -- 4 [8] Gilbey Lane is also narrow (about 6m wide) and permits two way traffic only with difficulty. The Locality [9] The immediate surrounding land use is characterised by a scattered mix of residential types including detached houses, flats, aged care facilities, and multi- level apartments. [10] The built form in the direct vicinity of the site maintains a mixture of building heights ranging from one-storey detached dwellings up to a 6 storey apartment located on land directly opposite the site in Bowman Lane but facing away from it towards Langshaw Street. Further afield, there is a general mix of detached houses, duplexes, town houses and apartments ranging from 3 to 8 storeys. [11] Bowman Lane is generally dominated by the backs of buildings, garages and rear access points. There is only one dwelling (No. 3) that has Bowman Lane as a primary frontage. The Development [12] It is proposed to remove the existing buildings on Lot 1 to allow the construction of a three-storey 8-unit apartment (of 730m 2 gross floor area) behind Moana. This building will face Bowman Lane. The construction materials are to be generally rendered and painted concrete block work on the outer walls, split face concrete block work on the outer walls fronting Bowman Lane, powder-coated metal balustrades, battens and screens, and corrugated colourbond peaked roofs. It is to have two units and car parks on the ground floor and three units in each of the other floors. Access will be to Bowman Lane. -- 4 of 11 -- 5 [13] The subdivision of Lot 2 will create two separate lots; one lot of approximately 858m² for Moana and another of approximately 270 m² for the cottage abutting the boundary with Bowman Lane. A 2m wide access way for pedestrians to and from Moray Street is proposed for this allotment. [14] The refurbishment of Moana on Lot 2 is in the form of internal and external building refurbishment and repairs; removal of previously undertaken extensions in the form of the rear ground floor laundry, deck and stairs; reinstatement of the stairs; and construction of a three-car garage at the south-eastern corner of the house. Much of the refurbishment has been commenced and already the house is beginning to reveal its designed grandeur and beauty. Mr Tosoni, the director of the appellant, lives there with his family. I have no doubt that he genuinely intends to restore Moana as well as he is able to. [15] Vehicular access to the proposed multi unit dwelling on Lot 1 and the cottage on Lot 2 is proposed to be via Bowman Lane. Vehicular access to Moana is to remain from Moray Street but is to be relocated, with a new crossing. [16] Servicing and refuse collection for the proposed multi-unit dwelling on Lot 1 is to be from Moray Street along the access strip to the west of Lot 2. The Issues [17] The three issues raised on the appeal were: (a) Whether the bulk of the proposed multi-unit dwelling on Lot 1 would constitute over development of the lot; (b) The effect of the proposal overall on the heritage value of Moana and the cottage; -- 5 of 11 -- 6 (c) Traffic access and parking. Bulk [18] The site is within the low-medium density living precinct under the New Farm and Teneriffe Hill Local Plan and is also in the low-medium density residential area under the City Plan. Accordingly, a multi-unit dwelling is subject to impact assessment and the Development Code under the Local Plan is applicable, particularly s.5.3 of the Code which deals with building height and gross floor area. If a proposed building does not comply with those criteria, it is regarded as “generally inappropriate impact assessment development”. [19] The Code contemplates as an “acceptable solution” a gross floor area for the proposed building of not more than 50% of the “site area” which may be permitted to rise to 55% when the development is to take place on an “allotment” which is larger than 1,000m 2 and has a frontage greater than 20m. The terms “site area” and “allotment” are not defined. If the relevant site area or allotment upon which that calculation is to be made is Lot 1 alone, then the GFA of the proposed building is some 66% of its area. If, however, one takes the relevant site area or allotment to be both Lots 1 and 2 combined, then the combined GFA of the proposed building on Lot 1 and the two buildings now standing on Lot 2 is only 54% of the total area of Lots 1 and 2. The Council argues for the former proposition, the appellant for the latter. [20] It should be noted that the application which was made by the appellant to the Council is to build a multi-storey unit building on Lot 1. On an ordinary reading of the words of the Code, Lot 1 is the site area and also the allotment. The Code makes no reference to the inclusion, for calculation purposes, of the area of an -- 6 of 11 -- 7 adjoining site or allotment, even one which happens to be in the same ownership. It would seem odd to permit that to be done. It could bring about the approval of a disproportionately large building on a lot beside a vacant lot, both being in common ownership. The owner could then sell the vacant lot. If that lot were then to be developed, even within the bulk permitted by the applicable plan, the result would be an overcrowding. [21] Thus, it seems to me to be plain that the proposed construction of the multi-unit building is contrary to the Code, indeed greatly in excess of the acceptable solution. If it be accepted that notwithstanding that, a residual discretion remains to permit the development, I consider that it is a relevant feature that Moana is set towards the rear of Lot 2. If the proposed unit building were to be constructed, two large buildings would be close together. It is not a case in which the new building would get the benefit of a large area of vacant space in Lot 2’s backyard as breathing space. [22] Indeed, in this case, while Lot 1 contains an area of over 1,000m2 , the portion of it which can contain a building is actually only some 700m 2 . That makes even more disproportionate the idea of constructing on it a building with a GFA of 730m 2 . Heritage [23] Not only does the proposal for Lot 1, because of the bulk of the building, offend the provisions of the Local Plan, it also runs counter to the provisions of the Local Plan relating to places of importance in a heritage sense. Sections 2.2.3, Principle 4 and s.2.2.4, Principle 3, require development to be compatible with and appropriate to the local historical and cultural setting. Applying those principles, the new building -- 7 of 11 -- 8 should not be permitted to reduce, to any notable degree, the “statement” made by a building as important and beautiful as Moana. [24] Furthermore, the Heritage Place Code (s.3.2.1) incorporates the Burra Charter which, as Mr Riddel (the expert in the field called by the Council) noted in his report, exhibit 11, contains Article 8 which requires “the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate”. [25] A severe adverse impact on the appropriate visual setting of Moana would result from the proposed multi-unit development. It is a comparatively large rectilinear shaped building with a single hip roof of substantial scale. As exhibit 24 shows, it protrudes to a substantial degree on either side of Moana in elevation and, as the attached perspective shows, one would see substantial parts of the building, depending upon the angle from which it is viewed. Whilst the appellant’s case referred to the ability of screens and landscaping to provide some softening of the appearance, it is difficult to see that screening could adequately disguise the large bulk and scale of the building. [26] The impact of the apartment building setting is worsened by the fact that it would undoubtedly present as a three storey building in comparison to Moana which, although actually of three storeys, presents more as a two storey building with habitable rooms within the roof. As Mr Riddel said, the impact of development could have been reduced by the multi-unit dwelling presenting as a two storey building, perhaps with dormer windows in the roof. -- 8 of 11 -- 9 [27] It is the bulk and scale of the proposed building which presents particular challenges to compatibility. If the GFA provisions of the Scheme were respected, there would be approximately 20% less GFA. Mr Riddel’s opinion was that, subject to appropriate design, a building of 50% to 55% GFA could be achieved on Lot 1 in a way which might well respect the heritage status of Moana. The present proposal is substantially larger than Moana and the adjoining buildings. The result would be, as Mr Riddel said, an overpowering of Moana. This would be made worse by the development of the quite large garage building in the front yard of Moana which would, to a substantial degree, degrade the look of Moana, would obscure the cottage and would change the front yard of Moana into a large vehicle manoeuvring area, all of which is out of context with its historical and cultural setting. More will be said of the garage under the heading “Traffic and Parking”. [28] For these reasons, the development as currently proposed clashes with heritage considerations as well as the bulk criteria of the Local Plan. Traffic and Parking [29] The proposal is for vehicle access to be obtained to the multi-unit dwelling via Bowman Lane and the laneway system of which it is a part. [30] It is evident that that laneway system has many deficiencies. The lanes are narrow and lack footpaths. There are tight turns with inadequate sight distances. As all the traffic engineers agreed, there are measures that could be undertaken to improve the safety of the system including the one laning of Gilbey Lane, the placement of mirrors and the like. Such measures have not been implemented to date, perhaps because of the very low traffic and pedestrian volumes involved. Any changes to the road system (particularly in creating one way traffic) would be a matter for the -- 9 of 11 -- 10 Council to consider after proper public consultation. I would not feel it appropriate to force such measures on the Council by a decision in this appeal, the public not having specifically been consulted about it. [31] I accept Mr Holland’s view that the laneway system could be adapted to accommodate the relatively low traffic numbers which would be associated with the multi-unit dwelling. However, as I have said, there are substantial difficulties in bringing that about. What is more, I do not think it is necessary to do it, because a better solution is available. [32] Lot 1 has physical access to Moray Street and an appropriate access could be constructed to that street. Importantly, that strip of Lot 1 could, by the creation of an appropriate easement arrangement, provide access from Moray Street to the rear of Moana for the garaging of vehicles for that house and also the cottage. This would not only result in a preferred traffic solution but would also have benefits from a heritage perspective by obviating the need for an inappropriate garage structure and manoeuvring area in the front yard of Moana. Mr Riddel saw this as being of benefit. Mr Beard’s sketch showed that parking for Moana and the cottage could be accommodated at the rear of Moana. Mr Viney also thought the solution to be preferable to the proposal. [33] I have taken into account and given weight to the substantial number of submissions against the proposal and to the views of the co-respondents which were, I thought, calmly and reasonably advanced by Mr Stevens. Conclusion [34] I propose to allow the appeal to the limited extent of giving permission to the appellant to demolish the non-original additions to Moana. I invite the parties to -- 10 of 11 -- 11 agree on a list of those items and to draft an appropriate order. To permit that, I adjourn the matter to a date to be fixed. -- 11 of 11 --