Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2007] QPEC 093

[3] By reference to those elements of the planning scheme and, in particular, the Demolition Code the central issues are, then:

(a) whether the house contributes positively to the visual character of the street; and

(b) whether or not it is capable of structural repair, i.e. whether it is or is not reasonably capable of being made structurally sound.

[4] The parcel on which the house stands is on the northern side of Sylvan Road and contains 885m². The house is situated in the southwest corner, quite hard up against the western boundary and the front footpath on Sylvan Road. It looks very old, an impression which is probably exaggerated by its condition. Inspection showed it to be extremely dilapidated, neglected, filthy and, to the lay person, structurally unsound in obvious ways - missing pieces of flooring, a stump which had fallen over, and similar symptoms of decrepitude.

[5] The state of the house was poetically, but accurately, described by the architect called by Council who said, in his report:

The subject house is severely run-down in appearance. Its roof is rusting, gutters and downpipes are rusting or missing, it has no paint left on its external timber walls, its open verandas are so dilapidated they look unsafe to walk on, its cast-iron veranda balustrades are missing, and the timber venetians on its verandas are unpainted, broken or missing... The appearance of the house does elicit an emotional response; it looks so sadly in need of repair, it cries out for care and attention. Its dilapidated appearance is also picturesque in its poignant and vulnerable state of decay[3].

[6] The appellants called Mr Joseph, a consulting structural and civil engineer in connection with the structural condition of the house;[4] Mr Pullar, a builder, about the cost of repairing it;[5] an architect, Mr Mack[6] and Mr Ryan, a town planner.[7] Council presented reports from and called Mr Kay, town planner;[8] Mr Scott, the architect quoted above;[9] Mr West, a consulting structural engineer;[10] and Mr Chapman, a builder.[11] The co-respondents also called a builder, Mr Pope;[12] Mr Kennedy, a heritage architect;[13] and Ms Wheeler, a town planner.[14]

[7] Before turning to the central issues it is appropriate to determine two inter-related matters, one factual and one legal, concerning the age of the house. Historians retained by Council and the co-respondents concluded that the house was built before April 1901, and probably in 1900[15]. Only Mr Kennedy, the architect called by the co-respondents, thought that it might be older but his opinion was speculative and did not sit comfortably with the clear views of the historians, or the evidence of Mr West - who noted that roofing sheets on the house were manufactured in Britain and exported to Australia no earlier than 1897[16].

[8] The weight of evidence indicates, then, that the house was not built prior to 1900. That conclusion means an amendment to the Demolition Code in July 2005 under which, for pre-1900 houses, streetscape issues have no relevance and demolition will only be permitted if the building is not capable of structural repair, will not apply here.

[9] Even if the opposite conclusion had been reached this is not a case in which changes to the Demolition Code after the application was made would be afforded weight under IPA s 4.1.52(2)(a), which provides:

(2) However, if the appellant is the applicant or a submitter for a development application, the court -

(a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate...

The provision will not have the effect of calling post-application changes into consideration when, as here, there is nothing in the new form of the Code which helps to explain, or give guidance or direction about, what it said at the relevant time.

[10] Under IPA, code assessment of an application must be carried out against the applicable codes (s 3.5.4) and the application must be approved if it complies (s 3.5.13). The amendments here, which introduced a more restrictive regime to control the demolition of pre-1900 houses, does not touch in any way the important elements of the Code which applied at the relevant time - contribution to the streetscape, and the possibility of structural repair.

[11] City Plan provides that assessment under codes like the Demolition Code is to be undertaken by considering the purpose of the code and statements contained in them called Performance Criteria (PCs) and Acceptable Solutions (ASs). Here, the purpose is to protect buildings which give the residential areas within the demolition control precinct their traditional character and amenity. The Code also seeks to ensure the preservation of buildings where they form an important part of a streetscape in which the buildings and other elements were constructed and/or established before 1946.

[12] As the PCs and ASs are set out in the Demolition Code they contain alternative, and not cumulative, requirements. The first relevant PC, P1, enquires in effect whether or not the building is 'capable of structural repair'. The relevant AS, number 1.2, permits the would-be demolisher to satisfy the PC by submitting an engineering report which demonstrates that the building is structurally unsound, and not reasonably capable of being made structurally sound.

[13] The PC also questions whether or not the building 'contributes positively to the visual character of the street' and AS 1.3 permits the PC to be satisfied by evidence that 'demolition... will not result in the loss of traditional building character in the street'. Because some of the co-respondents' cross examination of expert witnesses[17] suggested a different view, it is appropriate to note that the fact a single house presents with 'traditional building character' (the term used in the PC P1) is not determinative of the question arising under AS A1.3. If the mere existence of traditional building character in a house was intended to be sufficient for wider purposes, and demolition was automatically held to destroy the character on a wider canvas of the street, AS1.3 would be rendered superfluous.

[14] All parties agree the building is not currently structurally sound, but disagree whether it can reasonably be restored to that condition. The estimates of costs necessary to attain a level of structural soundness vary considerably. If the repairs are performed in a way which excludes those which might be said to involve elements that would have the effect of improving visual appearance, or preserving or extending the life of the structural elements, the total cost could possibly be something less than $70,000.00. On the other hand, the more generous (but still, it appears, reasonably practical) approach by one builder (Mr Pullar) would attract restoration costs of not less than $100,000.00.

[15] The test to be applied under AS 1.2 is an objective one[18]. It suggests, at first reading, an exercise which involves nothing more than bringing the house back to a condition of structural soundness, and that costs associated with repairs or renovations beyond that level will usually be irrelevant[19]. The test will not, however, be immutable and each case must be considered in light of its own particular circumstances. As Griffin SC, DCJ remarked in Craig Securities Pty Ltd v Brisbane City Council [2006] QPEC 044:

[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, be its ordinary, every day 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.

[16] As His Honour went on to note, the issue of reasonableness may also involve considerations like the practical ability to actually perform the work, as well as complexity and cost in carrying out necessary restoration. In Craig Securities the restoration cost was of the order of $53,000.00 and the building was found to be reasonably capable of being made structurally sound. Here, the evidence shows that the decay giving rise to a need for restoration is very much at the higher or worst end of the scale, and that restoration to a level that is no more than 'sound' may not actually make the premises safe. It is inconceivable that the City Plan intended to accept, as appropriate and satisfactory, restoration to a level where premises yet lacked the capacity for safe occupation, and that must be a circumstance which is relevant to the application of the test posed in the Code.

[17] On any view the work here does not constitute minor building work and would, then, be assessable under s 20 of The Building Act 1975 and, therefore, require a development permit from a Local Government or private certifier. The certifier would, more likely than not, conclude that certification should not issue unless the restoration brought the building to a condition in which it was not only structurally sound but, also, safe. The house is a long way from that condition at the moment; as Mr Joseph and Mr Pope confirmed, they have seen few houses in worse structural condition. Inspection strongly supported this view - many stumps were, obviously, alarmingly insecure or, through earlier changes, unreliable or unstable; many parts of the floor have collapsed or seemed ready to do so; the roof is plainly in a very poor condition; and, really, it is only some parts of the wall fabric which present as secure, or readily capable of repair.

[18] Mr West, the consulting structural engineer called in Council's case fairly conceded that a building repaired according to his specifications would not be safe in a reasonably foreseeable high wind event - in simple terms, the roof would be likely to come off. Mr Joseph was of the same view, and adamant that additional roof strengthening measures were necessary for ordinary structural purposes. Work of that kind would, I accept, require the practical removal of all roof sheeting - an event which raises the practicability and good sense of removing all the existing, but extremely old and rusted, sheeting and then re-affixing some or all of it.

[19] The apparent need for work of this order also casts real doubt upon the lower estimates of restoration costs. Evidence of very serious decay combined with a need to affect restoration to a level which would make the premises safe means that the nature and scope of the required work is extensive; and, that higher rather than lower estimates of the associated costs are more likely to be accurate. A figure of over $100,000 is suggested by the evidence. That is a large sum to spend simply restoring a very dilapidated house to a level which reflects nothing more than safe, structural soundness. In light of all the relevant circumstances, it does not impress as reasonable. While structural repair is, obviously, possible the unreasonably high cost of restoring these very unsound premises means that the appellant has established, under the test contained in the Code, that the building is not reasonably capable of being made structurally sound (and thereby, of course, satisfied the AS).

[20] The second question is whether or not demolition would result in the loss of traditional character in the street (AS A1.3). For reasons explored earlier it is plain the Code is not intended to prohibit demolition simply because a building presents with traditional character and the question is, rather, whether or not a loss of that kind will occur 'within the street'. A great deal of evidence was heard from the expert architects about the 'streetscape' (as an urban locale is often, now, called in this jurisdiction). Ultimately, their views are of assistance only to the extent that they disclose a reasoning process which helps the court to move from the primary evidence (what is actually located in the relevant part of Sylvan Road) to an ultimate conclusion as to whether demolition has an effect which falls short of meeting the AS - i.e., in truth, that there will be a loss of traditional building character.

[21] The question necessarily involves a determination of the parameters of 'the street'. Although, for present purposes of assessment, the Demolition Code is self-contained, obvious support for the notion that something less than the entire length of a road or street is, logically, intended, can be found in other provisions which explain the nature and purpose of a Demolition Control Precinct. Section 4.2.4 of the Strategic Plan says that:

'Demolition Control Precincts are those locations in older suburbs that contain pre-1946 housing with distinctive 'timber and tin' architecture. The precincts maintain minimum groups of three houses, and at least two thirds of the precinct contains pre-1946 houses' (emphasis added).

Similarly, the Local Plan adds clarity to these objectives by limiting protection to 'groupings of pre-1946 houses'. Statements to this effect can be read comfortably beside the reference, in the section for Code descriptions, to 'reasonably uniform scale' with a predominance of houses whose building form and scale, materials etc., and setting are of the traditional 'tin and timber' kind.

[22] Statements of this kind tend to reinforce the approach taken by the architects Mr Scott, and Mr Mack, whose evidence addressed the question whether there is a reasonably intact streetscape containing a number of adjacent examples of houses of the type referred to in s 4 of the Code; and, the extent to which that streetscape would be harmed if one house is demolished.

[23] Mr Scott and Mr Mack considered the 'streetscape' which was primarily relevant to the enquiry here was the locale on the north side of Sylvan Road between two streets running off to the north (St Osyth, and Quinn Streets). Within that segment they detected a want of traditional building character. Starting from the east, the streetscape comprised: a 'six pack' unit block on the corner of Sylvan Road and St Osyth Street, built in the 1970's or 1980's; the subject house; the next house to the west, 99 Sylvan Road which, despite apparently being built in or before 1945 is virtually indistinguishable from the post war 'austerity' design popular after 1946 and does not, therefore, present with the usual 'tin and timber' features; the premises at 101 and 103 Sylvan Road, which do appear to be of a traditional 'tin and timber' design and construction but, by reason of the erection of carports, hedges, and high fences, do not make any meaningful contribution to what can be called 'traditional character'; and, lastly, the Toowong Primary School Sports Ground. Both architects contrasted this streetscape with other sections in Sylvan Road which, they conceded, do exhibit the traditional character to which s 4 of the Code refers.

[24] These opinions accord with what was seen on inspection, and in the photographic evidence in various reports. This part of Sylvan Road simply does not present as one containing, on the northern side, a streetscape redolent of, or exhibiting, traditional building character. While it is true that other parts of Sylvan Road, and, indeed, sections of the southern side nearby do exhibit those properties, that is not material. The appellant has successfully established, here, that by dint of its location and immediate surrounds the demolition of this building will not result in the loss of traditional character in the street.

[25] For these reasons, the appeal should be allowed.

[1] Notified by Council to the appellant in a letter 27 June 2006, appearing at Exhibit 1, pp 84-105

[2] Their particular right to be heard on that part of the development application has previously been considered, and permitted, by McLauchlan QC, DCJ in Wheeler v Brisbane City Council & Ors [2007] QPEC 019

[15] Exhibit 1, Page 124

[16] Exhibit 8, Page 7

[17] Including in particular Mr Mack, Mr Scott and Mr Kennedy

[18] Gould v Brisbane City Council [2001] QPELR 77

[19] Craig Securities Pty Ltd v Brisbane City Council [2006] QPEC 044