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  • Unreported Judgment

Andema Pty Ltd v Noosa Shire Council

 

[2020] QPEC 46

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Andema Pty Ltd v Noosa Shire Council [2020] QPEC 46

PARTIES:

ANDEMA PTY LTD (ACN 608 755 997) AS TRUSTEE UNDER INSTRUMENT 717956144

(appellant)

v

NOOSA SHIRE COUNCIL

(respondent)

FILE NO/S:

2352 of 2019

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20, 23, 24, 27 and 28 April 2020

JUDGE:

Kefford DCJ

ORDER:

1. The appeal is dismissed.

2. The decision to refuse the appellant’s development application, communicated by decision notice dated 6 June 2019, is confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for material change of use for a retail and commercial premises – whether the proposed development is of an appropriate height, bulk and scale – whether the roof form is appropriate – whether there are sufficient carparks – whether there is inconsistency between provisions of a code – whether the development should be approved in the exercise of discretion

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Baskerville & Ors v Brisbane City Council & Anor [2010] QPEC 143; [2011] QPELR 333, approved

Gorman & Ors v Brisbane City Council & Anor [2004] QPELR 29, approved

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, approved

Klinkert v Brisbane City Council [2018] QPEC 30; [2018] QPELR 941, approved

Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25; (2017) 224 LGERA 166, approved

Lyons v Brisbane City Council & Ors [2009] QPEC 102; [2010] QPELR 190, approved

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied

The Planning Place v Brisbane City Council [2018] QPEC 62; [2019] QPELR 396, approved

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, applied

LEGISLATION:

Planning Act 2016 (Qld), s 45, s 59, s 60

Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47

Planning Regulation 2017 (Qld), s 27

COUNSEL:

B D Job QC and D Purcell for the appellant

C L Hughes QC and H Stephanos for the respondent

SOLICITORS:

Connor O’Meara for the appellant

Wakefield Sykes, Solicitor for the respondent

Table of contents

Introduction...........................................................................................................................................................................3

The decision framework.......................................................................................................................................................3

What are the issues in this case?4

Is the built form of the proposed development appropriate?6

Does the proposed development comply with the relevant requirements regarding height and visual impact?..............................................................................................................................................................................9

Will the proposed development present a building height consistent with structures on adjoining and surrounding land?10

Will the proposed development exceed two storeys in height?14

Will the proposed development visually dominate the street, adjacent properties, surrounding spaces or the existing skyline?16

Does the proposed development comply with the relevant requirements about building bulk and its contribution to streetscape character?19

Is the non-compliance with the plot ratio requirement significant?20

Is there compliance with the qualitative requirements with respect to built form?22

Does the proposed development comply with the relevant roof form requirements?23

Conclusion regarding built form, character and amenity considerations27

Does the proposed development provide sufficient carparking?28

Conclusion29

Introduction

  1. [1]
    At the corner of Kingfisher Drive and Heron Street (6 Heron Street), Peregian Beach (“the subject land”), the single storey building that previously housed the Friendly Grocer store now sits empty.  The appellant, Andema Pty Ltd, wants to redevelop the land for a new retail, dining and commercial business facility.  On 4 June 2012, a development approval was granted over the subject land (“the existing approval”).  It permitted a facility of the type now proposed.  The existing approval’s operation was extended on 6 April 2016.  It was due to lapse by 5 June 2020 if the new use did not happen, unless Noosa Shire Council (“the Council”) approved a further extension.  The existing approval has not been acted upon, nor is there a current application to further extend its operation.  The appellant now seeks a different development approval.
  1. [2]
    The proposed development would replace the existing single storey building with a three-storey building containing a restaurant, café, retail tenancies and office tenancies.  The appellant made a development application to facilitate its current proposal.  The Council refused the application. 
  2. [3]
    The Council is not opposed to the mix of uses sought by the appellant but contends that the proposed development would inappropriately impact on the built form, character and amenity of the locality by reason of its bulk, scale and design.  The Council also alleges that the proposed development does not provide sufficient carparks. 
  3. [4]
    The issue for me to determine is whether the proposed development should be approved or refused.

The decision framework

  1. [5]
    The statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 (Qld) applies.  The appeal proceeds by way of hearing anew.[1]  The appellant bears the onus.[2]
  2. [6]
    The appellant seeks a development permit to authorise it to carry out a material change of use of the subject land.  It wishes to use the subject land for a retail, dining and commercial facility generally in accordance with the design reflected in the plans provided as Exhibit 4.1. 
  3. [7]
    The development application made to facilitate that outcome required code assessment.  As such, the Court’s assessment must be carried out only:
    1. (a)
      against the applicable assessment benchmarks in the Noosa Plan 2006 Version No. 9 (“the Planning Scheme”);[3] and
    2. (b)
      having regard to any matters prescribed by regulation, including the common material lodged in respect of the development application[4] and any development approval for, and any lawful use of, the premises or adjacent premises.[5]
  4. [8]
    In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions that the Court considers appropriate.[6]  The decision must be based on the assessment.[7]  The Court must approve the application to the extent it complies with all the assessment benchmarks.[8]  To the extent that the proposed development does not comply with all or some of the assessment benchmarks, the Court may decide to refuse the application only if compliance cannot be achieved by the imposition of development conditions.[9]  Even if the development does not comply with some of the assessment benchmarks, the Court may decide to approve the application.[10] 
  5. [9]
    The question of whether departure from an assessment benchmark warrants refusal is a separate and distinct question.  I respectfully agree with the observations of His Honour Judge Williamson QC in Klinkert v Brisbane City Council.[11]  He observed that although the discretion is expressed in permissive and broad terms, it is subject to an important constraint, namely the constraint expressed in s 59(3) of the Planning Act 2016 requiring the decision to be based on the assessment carried out only against the assessment benchmarks and having regard to prescribed matters.  I also adopt the observations of His Honour Judge Williamson QC in Smout v Brisbane City Council,[12] where His Honour observed that given the size and complexity of modern performance based planning schemes, not every non-compliance will warrant refusal.

What are the issues in this case?

  1. [10]
    The Planning Scheme divides the Noosa Shire local government area into nine geographical localities.[13]  The whole of each locality is divided into zones.[14]  The subject land is contained within the Eastern Beaches Locality and the Neighbourhood Centre Zone. 
  2. [11]
    There are many assessment benchmarks that apply to an assessment of the development application.  However, the parties sensibly acknowledge that the outcome of the appeal turns on a much more confined consideration of the assessment benchmarks.  The relevant assessment benchmarks in issue between the parties require evaluation of the proposed development by reference to:
    1. (a)
      whether the built form of the proposed development is appropriate; and
    2. (b)
      whether the proposed development provides sufficient carparks.
  3. [12]
    Each party also relies on other matters to support their respective positions about whether the proposed development should be approved or refused.
  4. [13]
    The appellant relies on eight matters, which it says warrant approval of the proposed development in the exercise of the Court’s discretion.  They are:
    1. (a)
      the proposed development presents a high quality streetscape with design elements and building form that contributes positively to the streetscape and locality;
    2. (b)
      the proposed development adopts a roof form that is complementary to existing roof forms in the Peregian Beach Neighbourhood Centre;
    3. (c)
      the predominant built form in the Peregian Beach Neighbourhood Centre has a plot ratio of greater than 0.8:1;
    4. (d)
      the design of the proposed development will contribute to the ongoing architectural evolution of the Peregian Beach Neighbourhood Centre;
    5. (e)
      the proposed development will provide the rejuvenation of a vacant building;
    6. (f)
      approval of the proposed development would resolve conflict between specific outcome O10 on the one hand, and overall outcomes 7.7.2 g) and specific outcomes O61 b) and d) on the other;
    7. (g)
      the proposed development is consistent with the type and form of development the subject of the existing approval, which was granted and extended under the Planning Scheme; and
    8. (h)
      in terms of carparking:
      1. none of the existing buildings or uses within the Peregian Beach Neighbourhood Centre makes provision for off-street carparks;
      2. the provision of off-street carparks would result in undesirable town planning, amenity and traffic impacts;
      3. the Peregian Beach Neighbourhood Centre has access to ample carparks; and
      4. off-street carparks were not required for the previous use of the land, nor by the existing development permit for the land.
  5. [14]
    The Council raises four discretionary matters in favour of refusal.  They are:
    1. (a)
      the proposed development does not accord with reasonable expectations for development of the land pursuant to the Planning Scheme;
    2. (b)
      approval of the proposed development will result in unacceptable visual amenity and traffic impacts on the village square of Peregian Beach, and visitors and residents attending the square, due to the excessive bulk and scale, including the proposed rooftop terrace which is not supported by the Planning Scheme;
    3. (c)
      development of the subject land in accordance with the Planning Scheme is in the public interest; and
    4. (d)
      the proposed development involves design and use outcomes that materially differ to the development contemplated by the existing approval such that the existing approval does not warrant, or support, an approval of the proposed development.

Is the built form of the proposed development appropriate?

  1. [15]
    The Council alleges that the proposed development is non-compliant with the requirements of the Planning Scheme by reason of the roof treatment proposed; the plot ratio; and the bulk, scale and design of the building.  In particular, the Council alleges that the proposed development does not comply with:
    1. (a)
      overall outcomes 7.7.2 a) i., g) i., ii. and iv. and jj) iv. of the Eastern Beaches Locality Code; and
    2. (b)
      specific outcomes O4 a) to c), O6 a) and b), O10 a), O12 a) to d), O61 d), e) and g) and probable solutions S4.1 e), S12.1 and S12.2 of the Eastern Beaches Locality Code.
  2. [16]
    Section 7.6 of the Eastern Beaches Locality Code outlines what is required to achieve compliance with that code.  It states:

7.6 Compliance with the Eastern Beaches Locality Code

Development complies with the Eastern Beaches Locality Code if it­

7.6.1 fulfils the specific outcome for the locality in Division 15; and

7.6.2 is a consistent use and fulfils the specific outcomes for the relevant zones (Division 16 to Division 24).”

  1. [17]
    There is an apparent inconsistency between s 2.6.4 and s 7.6 of the Planning Scheme.  Section 2.6.4 is in Chapter 2, which relates to interpretation.  It states:

“2.6.4  Determining the requirements for accepted development and assessment benchmarks and other matters for assessable development

a) Accepted development does not require a development approval and is not subject to assessment benchmarks.  Notwithstanding this, certain requirements may apply to some types of development for it to be accepted development.  Where nominated in the tables of assessment, accepted development must comply with the requirements identified as acceptable solutions in the relevant parts of the applicable code(s) as identified in the relevant column.

b) Accepted development that does not comply with one or more of the nominated acceptable solutions in the relevant parts of the applicable code(s) becomes code assessable development unless otherwise specified.

c) The following rules apply in determining assessment benchmarks for each category of development and assessment.

d) Code assessable development:

i. is to be assessed against all the assessment benchmarks identified in the assessment benchmarks column;

ii. that occurs as a result of development becoming code assessable pursuant to sub-section (b) to this subheading 2.6.4 must:

a. be assessed against the assessment benchmarks for the development application, limited to the subject matter of the required acceptable solutions that were not complied with or were not capable of being complied with under sub-section (b) to this subheading 2.6.4;

b. comply with all required probable solutions identified in sub-section (a) to this subheading 2.6.4 other than those mentioned in sub-section (b) to this subheading 2.6.4;

iii. that complies with:

a. the overall outcomes of the code complies with the code; and

b. the probable solutions complies with the overall and specific outcomes of the code;

iv. is to be assessed against any assessment benchmarks for the development identified in section 26 of the Planning Regulation 2017.

Editor’s notesection 27 of the Regulation identifies the matters code assessment must have regard to.

e) Impact assessable development:

i. is to be assessed against the identified assessment benchmarks in the assessment benchmarks column (where relevant);

ii. assessment is to have regard to the whole of the planning scheme, to the extent relevant;

iii. is to be assessed against any assessment benchmarks for the development identified in section 30 of the Planning Regulation 2017.

NoteThe first row of each table of assessment is to be checked to confirm if there are assessment benchmarks that commonly apply to general scenarios in the zone, local plan or overlay.

Editor’s noteSection 31 of the Regulation identifies the matters that impact assessment must have regard to.

(emphasis added)

  1. [18]
    The grammatical structure of s 2.6.4 d) iii. is difficult.  The appellant contends that its effect is that a development that complies with the probable solutions complies with the overall and specific outcomes of the code.  That construction does not sit comfortably with s 2.8 and the definition of “probable solution”.
  2. [19]
    Section 2.8 states:

2.8 Probable solutions for code assessable development

2.8.1 A probable solution for a specific outcome provides a guide for achieving that outcome in whole or in part, and does not limit the assessment manager’s discretion under the IPA to impose conditions on a development approval.

2.8.2 Probable solutions identified in the Noosa Plan are not exhaustive and alternative solutions that achieve the outcomes and purpose of the applicable codes may be proposed by applicants.”

  1. [20]
    Probable solution is defined to mean:

“precise criteria or standards that provide a guide for achieving a specific outcome in whole or in part, but do not necessarily establish compliance with a code.”

  1. [21]
    When all of those provisions are read together, it seems to me that the effect of s 2.6.4 d) iii. b. is to identify that the planning goals articulated in a probable solution within a code are considered to be consistent with the planning goals in the overall and specific outcomes of the code, to the extent that there is a relevant correlation between the subject of the probable solution and the specific outcome and overall outcome.  Whether a development can comply with the code by only demonstrating compliance with all of the applicable probable solutions will depend on a careful consideration of the probable solution as compared to the specific outcome to determine whether it provides guidance “in whole or in part”. 
  2. [22]
    In this case, there is no suggestion that the proposed development complies with all applicable probable solutions.  As such, it will be necessary to consider a broader range of provisions to determine whether the proposed development complies with the applicable codes.  That said, applying s 7.6 of the Eastern Beaches Locality Code, if the appellant can demonstrate that the proposed development is a consistent use that complies with the specific outcomes, that will suffice.
  3. [23]
    Here, both parties accept that the proposed use is a consistent use.  The relevant dispute, with respect to the built form, relates to whether the development fulfils:
    1. (a)
      the specific outcomes for the locality in Division 15, relevantly specific outcomes O4 a) to c), O6 a) and b), O10 a) and O12 a) to d) of the Eastern Beaches Locality Code; and
    2. (b)
      the specific outcomes for the Neighbourhood Centre Zone in Division 20, relevantly specific outcomes O61 d), e) and g) of the Eastern Beaches Locality Code.
  4. [24]
    The overall outcomes relied on by the Council are in Division 14 of the Eastern Beaches Locality Plan.  That division outlines the overall outcomes sought for the Eastern Beaches Locality.  The overall outcomes are the purpose of the code.[15]  The overall outcomes provide important context when assessing compliance with the specific outcomes.  They also provide assistance when considering the significance of any non-compliance.

Does the proposed development comply with the relevant requirements regarding height and visual impact?

  1. [25]
    Specific outcome O4 sets requirements for the whole Eastern Beaches Locality.  It states:

O4 Buildings and other structures

a) are low rise and present a building height consistent with structures on adjoining and surrounding land;

b) do not exceed a maximum height of

i. For the Attached Housing Zone within Sunshine Beach–3 storeys;

ii. For the Visitor Mixed Use Zone–3 storeys, except for Lots 75-77 P9311 Heron Street, Peregian Beach–2 storeys;

iii. For any other zone–2 storeys;

c) do not visually dominate the street, adjacent properties, surrounding spaces or the existing skyline;

d) preserve the amenity of surrounding land, including existing sunlight to neighbouring properties; and

e) respect the scale of the dune and coastal vegetation.”

(emphasis reflects non-compliances alleged by the Council)

  1. [26]
    The Council alleges the proposed development fails to comply with this provision in three material respects.  First, the Council alleges that the proposed development does not present a building height consistent with structures on adjoining and surrounding land.  Second, it exceeds two storeys in height.  Third, it visually dominates the street, adjacent properties, surrounding spaces and the existing skyline.

Will the proposed development present a building height consistent with structures on adjoining and surrounding land?

  1. [27]
    Both parties accept that the proposed building is properly regarded as low rise and complies with specific outcome O4 a) in that respect.  I accept the submission of the appellant that probable solution S4.1 contemplates buildings in this locality with heights up to 12 metres, albeit in different zones, which in turn suggests that development of up to 12 metres in height could be considered “low rise”.
  2. [28]
    Specific outcome O4 a) otherwise requires a height that is “consistent” with other development.  That does not require replication.  Rather, it requires something that is compatible with structures on adjoining and surrounding land in the sense of being capable of existing in harmony with that other built form.[16] 
  3. [29]
    The Council alleges that the proposed development does not comply with specific outcome O4 a) because it is not consistent with the only adjoining development, being the single storey retail building to the immediate south.  This approach is too narrow.  The specific outcome does not focus on adjoining development only, nor does it require consistency with each structure on adjoining land.  It calls for a global consideration of the structures on adjoining and surrounding land.  The height of those structures will differ.  Whether consistency is achieved with them as a whole is a matter of impression, having regard to all of the structures on adjoining and surrounding land.
  4. [30]
    The development is proposed to be built at the northeast corner of the primary retail and commercial area for Peregian.  The subject land is bounded by Heron Street to the north, Kingfisher Drive to the east, a single storey retail building to the south and a landscaped mall (also referred to as the village square and Peregian Park) to the west.  Although the single storey retail building is the only adjoining structure, the proposed development will be viewed in the context of the structures on the surrounding land.  The surrounding land includes the development to the south at 8 Kingfisher Drive; the development at 216 David Low Way; the development on the northwest corner of the village square; and the expansive development on the northern side of Heron Street.  Having regard to the photos and photomontages, I am satisfied that the structures on each of those sites form part of the immediate context in which the subject development would be viewed.  As such, they are appropriately considered when determining consistency with the structures on adjoining and surrounding land.
  5. [31]
    With respect to the issue of consistency, I was assisted by expert evidence from Mr Peabody and Mr Powell, the architect and visual amenity experts retained by the appellant, and Mr Robinson who was retained by the Council to give evidence with respect to both of those disciplines.  I also had the benefit of photographs of the area and photomontages depicting the proposed development.
  6. [32]
    Mr Peabody notes that the “Street height study – east” drawing prepared by Cox Architects illustrates that the building located two lots to the south on Kingfisher Drive is of consistent height to the proposed development.  Mr Peabody also notes that the development on the northern side of Heron Street has an eave line of consistent height to the proposed development, with a pitched roof above the eave line.  Mr Peabody opines that the proposed development would be viewed from the surrounding streetscape as two storeys and less than eight metres in height.  He says that the small part of the building greater than eight metres in height will not be readily visible from the surrounding streetscape.  He maintains that the proposed development will present and function as a two-storey building.
  7. [33]
    Mr Powell identifies that the uppermost parts of the proposed building that will be visible from adjoining public spaces comprise the timber screening at a typical height of between 7.485 and 7.685 metres.  Like Mr Peabody, Mr Powell relied on the “Street height study – east” drawing prepared by Cox Architects to form his opinion about the extent of consistency between the height of the proposed development and that of structures on adjoining and surrounding land.  He notes the two-storey commercial building across the road to the north, and the two-storey residential building with roof access immediately north of that.  He opines that both appear to have an extent and degree of exceedance above eight metres which would be similar to, or greater than, the proposed development.
  8. [34]
    The appellant submits:

“102. Notably, Mr Robinson agreed that the proposal complied with O4(a) in a “technical sense” in that it was low rise, and generally presented a building height consistent with the structures on the northern side of Heron Street174.”

  1. [35]
    The evidence of Mr Robinson to which the appellant refers in footnote 174 is “Ex 2.3, Architects’ JER, p.20, para 52(a)”.  The submission misstates the effect of the evidence of Mr Robinson.  Paragraph 52 on page 22 of Exhibit 2.3, being the Joint Expert Report: Architecture, states: 

“52. With regards to matters of building height NR is of the opinion that the proposed building is three storeys in height and that the scale and form of the proposed development does not satisfy Overall Outcomes 7.7.2(g)(i)&(ii).  NR considers that the proposed development:

a. is not responsive to the informal beachside character of the locality,

b. is technically, but not experientially ‘low rise’ as envisioned by the planning scheme,

c. shall be viewed from the surrounding streetscape as greater than 2 storeys in height, and,

d. is not in keeping with the surrounding streetscape and landscape qualities.

e. Is twice the allowable plot ratio”

  1. [36]
    Mr Robinson’s opinions that the proposed development is technically, but not experientially, low rise and that it is not in keeping with the surrounding streetscape were further explained in paragraphs 53 and 54 of the Joint Expert Report: Architecture.  He says that the proposed development will be incongruous with the streetscape because it will be read as greater than two storeys in height.  He says the portion of the façade above the awning is 49 per cent taller than the ground level.  This establishes the perception that the upper portion of the building is larger than one storey, and that the whole building is greater than two storeys in height.  He also says the façade has a tripartite appearance.  It is composed of the retail level under the awning, the office level with its windows, and the “solid” battened portion above the office windows.  Mr Robinson explains that the solid battened portion above the office windows is a factor of incorporating a parapet, rather than a pitched roof form.  He says that the tripartite configuration is reinforced by the strong horizontal line of the heavy concrete awning, and by the line created at the top of the upper level of windows.  He also says that the perception of a third storey will be confirmed by the presence of activity on the roof terrace and the probable future inclusion of umbrellas or shade structures.  In his view, the monotonous timber battens will exacerbate the building’s verticality.  In explaining his opinion, Mr Robinson references figure NR18 in the Joint Expert Report: Architecture, which is an extract of drawing number 02-01 “Heron Street Perspective” prepared by Cox Architecture.
  2. [37]
    The “Street height study - east” drawing, and the dimensions therein, appear to be a material consideration informing the opinions of Mr Peabody and Mr Powell.  It is one of a series of drawings prepared by Cox Architecture. 
  3. [38]
    The series of Street height study drawings prepared by Cox Architecture include an outline sketch of the buildings taken from the eastern, northern and western elevations.  The sketches provide an outline of the buildings along each elevation, including that of the proposed development.  They provide a basic indication of the relative bulk of the buildings, and their spacing from one another.  Notations on the sketches indicate what is said to be the “RL[17] for the highest point of each of the two-storey buildings.  There are photographs of the taller buildings directly underneath the outline sketch, with lines indicating the part of the sketch to which the photographs relate.
  4. [39]
    The “Street height study – east” drawing provides a sketch outline of an almost continuous line of buildings along the Kingfisher Drive elevation.  It records the highest point of the building located two lots to the south on Kingfisher Drive as RL 15.930.  In comparison, the highest point of the proposed development on the Kingfisher Drive frontage will be RL 15.860.  That is not the highest point of the proposed development though.   The small roofed area proposed over the central lift lobby and stair well extends to RL 17.010.  That area is recessed from the Kingfisher Drive and Heron Street frontages.  A note on the drawing suggests that the development on the northern side of Heron Street has an eave line on the Heron Street frontage at RL 16.440.  The roof pitches up from that point, such that the building height increases to RL 17.300 towards the centre of that site.
  5. [40]
    The drawings do not provide reduced level information for the ground level.  As such, the sketches do not contain the necessary data from which a calculation could be made of the height of each building measured in metres.  No reduced level data is provided for those buildings that are single storey in height, nor does the document include photographs of the single storey buildings. 
  6. [41]
    Exhibit 2.7 is a contour and detail survey recording the ground level for those buildings fronting Kingfisher Drive between Heron Street and Grebe Street.  No ground levels were provided for the buildings north of Heron Street.
  7. [42]
    The author of the Street height study drawings was not called to attest to the accuracy of the information contained therein.  Neither Mr Peabody nor Mr Powell was asked about the accuracy of the contents of the document.  Mr Powell’s observation, at paragraph 35 a. of the Visual Amenity Joint Experts’ Report, that the commercial buildings on the opposite side of Heron Street “appear to have exceedances above eight metres” suggests to me that he did not know the relevant survey data for the surrounding land.
  8. [43]
    Assuming the Cox Architecture drawings to be correct, they do not, by themselves, give an accurate impression about whether the proposed development is consistent with the structures on surrounding land.  As two-dimensional sketches, they fail to convey how design attributes for the buildings impact on impressions of their height.  For example, the recessing of the highest elements of the structure back from the street frontage, rather than proximate to it, reduces the sense of being overborne by the height of the structure.  The photographs assist with understanding how the design of the existing buildings impacts impressions about their height.  The photomontages provides similar assistance for the proposed building.
  9. [44]
    Having regard to the sketch drawings, photographs and photomontages, I accept the evidence of Mr Powell about what parts of the proposed building will be visible from the adjoining public spaces.  I do not accept the opinions of Mr Peabody or Mr Powell that the presentation of building height will be consistent with structures on adjoining and surrounding land given their opinions are heavily reliant on the Cox Architecture sketches.  Although the reduced level of the highest visible point of the proposed building may be similar to the highest point on nearby buildings, the relevant survey data would not be apparent to members of the public when viewing the proposed building in its context.  The public will form an impression about the presentation of height by viewing the proposed building in its context. 
  10. [45]
    I accept the evidence of Mr Robinson about the tripartite appearance of the façade.  The employment of timber battens, with vegetation growing through the battens, does little to ameliorate the impression that the proposed development presents a solid wall at the boundary above the height of the awning.  The vertical nature of the battens will draw the public’s eye up and, given the absence of a visually discernible roof structure, will create an impression of even greater height.  That said, the tripartite appearance of the façade will not be evident from all vantage points in the vicinity. 
  11. [46]
    As one walks along Kingfisher Drive, the intervening vegetation will, at many times, screen most of the proposed development from view.  If one is walking on the western side of Kingfisher Drive, the building awnings will obscure the height of the proposed development from view.  The vegetation in Peregian Park will also largely screen the building from view of people within the park or frequenting the premises that surround the park. 
  12. [47]
    The tripartite appearance of the proposed building will be most evident from Peregian Beach Park and as one moves along Heron Street.  The photomontage of the view from Peregian Beach Park demonstrates that, when viewed from that location, the proposed building appears bulkier than those that surround it.  Nevertheless, it is of a generally consistent height overall, albeit with an appearance of three storeys within that height.  From Peregian Beach Park, the building two lots to the south also appears to have a third storey, although the height of the top part of that building appears less visually intrusive because it is recessed from the street.
  13. [48]
    Overall, having regard to the matters referred to above, I am persuaded that the proposed development would present a building height consistent with structures on adjoining and surrounding land, albeit as part of a built form that will appear bulkier and more visually intrusive.  It complies with specific outcome O4 a).

Will the proposed development exceed two storeys in height?

  1. [49]
    The Council acknowledges that much of the proposed development is below the eight metre height limit in probable solution S4.1 e) and the two storey maximum height limit prescribed in specific outcome O4 b).  The small portion of the proposed development that exceeds eight metres in height extends up to 8.735 metres.  The relevant part of the building comprises the roofed, enclosed lift lobby that is centrally located on the southern side.  It has a total area of about 25 square metres and represents about ten per cent of the roof area.  By reason of that area and having regard to the definition of storey in the Planning Scheme, the building is a three-storey building.  It does not comply with specific outcome O4 b).
  2. [50]
    Overall outcomes 7.7.2 a) and g) inform the planning goals in specific outcome O4.  They state:

“a) New uses and works are located, designed and managed to

i. be compatible with other uses and works;

ii. maintain the safety of people and works

iii. avoid significant adverse impacts on the amenity enjoyed by users of other premises, including acoustic and visual qualities;

iv. avoid significant adverse impacts on the natural environment, including native habitat removal, fragmentation and attrition; and

v. protect the natural beach experience and overall visual amenity for beach users;

g) The scale and form of buildings and other structures are

i. designed to be responsive to the informal beachside character of the locality, being low rise buildings, with pitched or curved roofs and building materials that blend with the dune and coastal landscape;

ii. in keeping with the surrounding streetscape and landscape qualities;

iii.  integrated into the topography and native vegetation of the dune system which dominates the locality; and

iv. consistent with the amenity and safety expectations of the community.”

(emphasis reflects non-compliances alleged by the Council)

  1. [51]
    Having regard to these overall outcomes, it seems to me that compliance with the two-storey height requirement addresses the broader planning goals of avoiding significant adverse impacts on the amenity enjoyed by users of other premises.  It also helps achieve a scale and form of buildings that is in keeping with the surrounding streetscape and landscape qualities (insofar as scale is informed by height).
  2. [52]
    The Council does not allege non-compliance with overall outcome 7.7.2 a) iii.  Nevertheless, Mr Powell and Mr Robinson both addressed whether the proposed development would result in an unacceptable impact on the amenity enjoyed by users of other premises.  They agree that the amenity enjoyed by users of other premises can be adversely impacted by a development if the development involves unacceptable overlooking, overbearing or overshadowing. 
  3. [53]
    The experts agree that the proposed development will have no overlooking impact.  Although Mr Robinson considers the unarticulated bulk of the proposed building to be overbearing, he opines that the third storey is not overbearing on the surrounding properties.  Mr Powell is also of that view.  I accept this evidence.  On the issue of overshadowing, Mr Powell opines that the proposed development will not subject the adjoining development to the south to unreasonable overshadowing.  He notes that the adjoining development has no north-facing windows or outdoor private open spaces or rooftop spaces that could be subjected to overshadowing.  Mr Robinson disagrees.  He says the over height portion of the proposed development will cast unreasonable additional shadow on the existing adjacent neighbour’s windows and outdoor space.  The outdoor space in question is a small concrete area in the middle of the adjoining site.  I prefer the evidence of Mr Powell about the absence of unacceptable overshadowing.  During his examination-in-chief, Mr Powell described the relevant area as a “harsh concrete space”.  The space appears to function as a “back of house” area for the bakery and the post office.  In those circumstances, I am satisfied that the third storey of the proposed development does not result in an unacceptable impact on the amenity enjoyed by users of other premises. 
  4. [54]
    As for potential visual amenity impacts, Mr Powell, Mr Peabody and Mr Robinson are all of the view that the small proportion of the proposed development that represents the third storey, and exceeds eight metres in height, will be largely, if not entirely, concealed from the street and other public vantage points to the north, east and west.  Their evidence in this regard accords with the illustration of the proposed building in the photomontage and I accept it.
  5. [55]
    Having regard to the purpose of the code as outlined in overall outcomes 7.7.2 a) and g), the lack of visibility of the third storey, and the absence of unacceptable overlooking, overbearing and overshadowing of surrounding land, I am persuaded that this particular non-compliance is of little moment in this case.  Of itself, it does not result in any visual amenity or character impacts that are averse to the purpose of the code.

Will the proposed development visually dominate the street, adjacent properties, surrounding spaces or the existing skyline?

  1. [56]
    The visual impact of the proposed development was the subject of evidence from Mr Powell and Mr Robinson.  The appellant relies on the evidence of Mr Powell to discharge the onus with respect to compliance with specific outcome O4 c) of the Eastern Beaches Locality Code.
  2. [57]
    With respect to specific outcome O4 c), Mr Powell considers the real question to be whether the part of the building which exceeds eight metres in height visually dominates the street, surrounding spaces or skyline.  Mr Powell’s opinion that there is compliance with specific outcome O4 c) is premised on that assumption. 
  3. [58]
    The eight-metre dimension to which Mr Powell refers appears in probable solution S4.1.  It provides guidance about compliance with specific outcome O4 b) and informs expectations about compliance with specific outcome O4 c).  However, the requirement in specific outcome O4 c) is not expressed to relate only to the height of the proposed development.  I do not consider that the inclusion of specific outcome O4 under a heading of “height” justifies construing specific outcome O4 c) in the manner assumed by Mr Powell.  To construe the provision in that manner has the potential to produce an absurd result.  For example, it would lead one to conclude that a nine-metre tall light pole has the same capacity to dominate as a nine-metre tall building that is ten metres wide.  For those reasons, I disagree with Mr Powell’s approach.  As such, I do not find Mr Powell’s opinion on the absence of visual dominance to be persuasive.
  4. [59]
    A building’s dominance is a factor of its three-dimensional form, including how that form is presented architecturally.  Height will likely be a material consideration, but the significance of the height of a building to the question of its dominance must be judged by reference to the other dimensions that inform its bulk, and the design attributes that inform its visual presentation.  The issue of visual dominance should be determined by reference to the whole of the proposed development considered in its relevant context, including the extent of the built form that will be visible. 
  5. [60]
    As was acknowledged by Mr Powell during cross-examination, the proposed development would be visually prominent in the locality, particularly when viewed from Heron Street and from parts of Peregian Beach Park, such as that part diagonally opposite the subject land.  The proposed development will be seen by almost anyone who visits the Peregian retail centre given the subject land is located at the intersection of Kingfisher Drive and Heron Street.  Three of the four sides of the proposed building will be visible from public spaces. 
  6. [61]
    The design of the proposed development is represented in the architectural drawings in Exhibit 4.1.  The proposed development covers most of the subject land.  It has a site cover of 83 per cent and a gross floor area of 453 square metres, equating to a plot ratio of approximately 1.67:1.  This is reflective of a design that covers almost the entire 271 square metres of the subject land at both ground level and at level one. 
  7. [62]
    The total use area of 334.5 square metres comprises:
    1. (a)
      a ground floor restaurant and café tenancies of 54 square metres and retail tenancies of 81.5 square metres;
    2. (b)
      86 square metres of office tenancies and a further 59.5 square metres for the restaurant tenancy on the first floor; and
    3. (c)
      a landscaped open roof deck of 53.5 square metres where customers can consume food and beverages sold at the premises, with the balance of the open roof area to be used for building services (including two air funnels), and plant and equipment (including solar panels).[18] 
  8. [63]
    Each of the ground floor and level one has space dedicated for lift, stairwell, lobby, and building amenities and services.  The roof deck is to be accessed by a covered stair, lift and lobby area of approximately 20 square metres.  The roof over the stair, lift and lobby area is approximately 8.7 metres above existing ground, but the balance of the building is below eight metres in height.  The roofed lift lobby is the extent of the roof deck area that constitutes the third storey of the building. 
  9. [64]
    The architects, Mr Peabody and Mr Robinson, describe the “spatial arrangement” as involving (a) the “north east corner element with restaurant tenancy spaces on ground and level one and landscaped open roof deck above; (b) “the lobby element”, which includes access to the stair and lift and building amenities; and (c) “the north west corner element”, which includes retail spaces on the ground level, office spaces on level one, and roof area and plant and equipment above.
  10. [65]
    At the ground level, the tenancy spaces address the three active frontages of the subject land, being Kingfisher Drive to the east, Heron Street to the north and the landscaped mall to the west.  The architects agree that the boundary wall to the south boundary is consistent with the typical pattern of building arrangement within the Peregian retail and commercial area.
  11. [66]
    A continuous concrete awning, approximately three metres in width, extends over the footpath to the eastern, northern and western frontages.  It is aligned with the ground floor ceiling height, with the soffit measuring between approximately 2.65 metres and 2.85 metres above the ground floor level.
  12. [67]
    At the ground level, timber battens of varying sizes screen approximately 47 per cent of the Heron Street frontage.  In part, the battens function as a sliding gate, offering after-hours security to the lobby element (which would be recessed and open during trading hours).  They also provide a batten screen along the back of a publicly accessible concrete bench seat that is located along the street frontage.  There is a planter box sleeved behind the glass line and the screen.   
  13. [68]
    At level one, the tenancy spaces also address the three active frontages of the subject land.  The level one elevation for the northeast corner element and the northwest corner element features a timber batten screen offset from the tenancy glass line.  This screen incorporates varying sized battens and is punctuated by openings of varying proportions.  It extends to a height of approximately 4.45 metres along the eastern and northern elevations and for two-thirds of the western elevation.  For the balance of the western elevation, it extends to a height of 4.775 metres above the floor level.  The timber screening has a typical height of between 7.485 metres and 7.685 metres above ground level.  For the length of the northwest corner element, a planter box is sleeved between the tenancy space and the timber batten screen. 
  14. [69]
    At the roof level, planter boxes are proposed behind the timber batten screen along the perimeter of the active frontages.  There is a solid, 800-millimetre-high wall behind the planter boxes on the northwest corner element.  For the northeast corner element, the screen behind the planter box is glass. 
  15. [70]
    The architects agree that the lobby element in its entirety reads as a two-storey portal element.  There is a void over the ground level entry.  The level one glazing is recessed back from the northern frontage.  During trading hours, it will remain open to create a recess.  This will punctuate the building envelope within the northern elevation.
  16. [71]
    Mr Peabody opines that this design addresses and activates the street at both ground level and level one.  At ground level, he says the activation includes pedestrian access from all three active frontages; an open lobby, recessed into the building offering further permeability and access to tenancy spaces; publicly accessible seating opportunities; and fine grain timber batten screens offering visual interest along the building edge, whilst maintaining an element of transparency to the tenancy behind.  At level one, Mr Peabody says the activation includes retractable sliding doors to the northeast tenancy space behind the batten screen, which is punctuated with openings; a recessed two-storey void to the lobby space; and glazing to the northwest tenancy space behind the fine grain timber batten screen, which is also punctuated with openings.  He says the mid-landing to the stairs activates the space; and that the glazing provides for casual surveillance of the public realm.
  17. [72]
    Despite these design attributes, the building presents as a solid, box-like structure, particularly given the use of a box profile or parapet as the roof structure.  The architectural treatments provide a degree of amelioration at ground level, but the awning and the treatment above the awning have a heavy, solid appearance.  I accept the evidence of Mr Robinson that the height and design details of the proposed awning will cause it to have a low, heavy and potentially oppressive presence on the public space, on what is a pivotal street corner.  It will not create a light, breezy and informal atmosphere.
  18. [73]
    In addition, the lack of meaningful setback at level one will create an impression that the building crowds the street.  The absence of setback at ground level is somewhat ameliorated by the extent of activation at that level.  In contrast, the upper level timber batten façade is fixed.  I accept the evidence of Mr Robinson that there are very limited opportunities for connection between the upper level use and the public realm of the street.  The minimal punctuations in the solid form of level one will create an impression that it is looming over the street. 
  19. [74]
    When challenged about the box-like structure of the proposed building, Mr Powell sought to downplay the visual impact.  Nevertheless, he accepted that, even with the benefit of the batten screens, the proposed building would be “rectilinear” and very different from other buildings in the centre. 
  20. [75]
    Having regard to the plans and the photomontages, and the matters referred to in paragraphs [72] to [74] above, I am of the view that the sheer bulk of the building coupled with its solid, box-like presentation, will cause the proposed development to visually dominate the street, adjacent properties and the surrounding spaces.  It does not comply with specific outcome O4 c) of the Eastern Beaches Locality Code.

Does the proposed development comply with the relevant requirements about building bulk and its contribution to streetscape character?

  1. [76]
    Specific outcomes O6 and O10 set standards in relation to site cover, gross floor area and plot ratio for the Eastern Beaches Locality.  They state:

O6 The site cover, gross floor area and plot ratio of buildings and other roofed structures–

a) results in a building scale that is compatible with surrounding development;

b) does not present an appearance of excessive bulk to adjacent properties, roads or other areas in the vicinity of the site;

c) maximises the retention of existing vegetation and allows soft landscaping between buildings;

d) allows for adequate area at ground level for outdoor recreation, entertainment, clothes drying and other site facilities; and

e) facilitates onsite stormwater management and vehicular access.

O10 For the Neighbourhood Centre Zone the maximum plot ratio is as follows–

a) 0.8:1 for site areas up to and including 2000m2;

b) 0.3:1 for that area of a site in excess of 2,000m2.”

(emphasis reflects non-compliances alleged by the Council)

  1. [77]
    The Eastern Beaches Locality Code also contains specific outcomes for the Neighbourhood Centre Zone.  They include specific outcome O61, which relates to built form.  It states:

Streetscape & character

O61 Buildings and other structures present a high quality streetscape with design elements and building forms that

a) define the street and public spaces;

b) provide a consistent building alignment fronting the street and public spaces;

c) create pedestrian scale and visual interest;

d) are consistent with the bulk and scale of buildings on adjoining and nearby land;

e) contribute to their setting, including the skyline;

f) provide strong visual relationships to the beach, native vegetation and recreation areas in the vicinity;

g) for corner sites, are street focal points that contribute positively to defining the street;

a)  (sic) present subtle changes in colours, textures and materials to break up the building facades;

b)  (sic) integrate signage with the building design;

c)  (sic) integrate landscaping into the building design and carparking areas;

h) retain and provide areas for outdoor dining and meeting opportunities on the ground level.”

(emphasis reflects non-compliances alleged by the Council)

  1. [78]
    The appellant concedes that the proposed development does not comply with specific outcome O10.  The concession is appropriate.  The subject land has an area of 271 square metres.  The plot ratio of the proposed development is 1.67:1, that is more than double the maximum plot ratio prescribed by the Planning Scheme.  Despite the extent of exceedance, the appellant says that the non-compliance is of no significance.  It also joins issue with the Council’s allegation of non-compliance with the qualitative, built form requirements referred to above.

Is the non-compliance with the plot ratio requirement significant?

  1. [79]
    The appellant submits that the non-compliance is of no significance as it says that specific outcome O10 is inconsistent with specific outcomes O61 b) and d) and overall outcome g) of the Eastern Beaches Locality Code.  It submits that the inconsistency is highlighted by the evidence of Mr Robinson that the adherence to the plot ratio of 0.8:1 would result in a single storey building across the whole of the subject land or a two-storey building with a footprint that is approximately half of the area of the subject land.  The appellant submits that such a development would disregard three things.  First, the clear expectation that land in the Neighbourhood Centre Zone be developed for two storeys.  It says the expectation is created by specific outcome O4 b) and other provisions that seek consistency with existing built form and character.  Second, the existing built form.  Third, the intention, said to be evident in specific outcome O61 b), that there be a consistent building alignment fronting the street and public spaces.
  2. [80]
    As I observed in JRD No 2 Pty Ltd v Brisbane City Council & Ors,[19] the proper approach to the resolution of potential inconsistency (or conflict) within a statute was considered in Project Blue Sky Inc v Australian Broadcasting Authority.[20]  It is appropriate to adopt a similar approach in addressing the resolution of potential inconsistency in a planning scheme.[21]
  3. [81]
    The appellant has not persuaded me that there is an inconsistency between specific outcome O10 on the one hand, and specific outcomes O61 b) and d) and overall outcome g) of the Eastern Beaches Locality Code on the other, that is not capable of being resolved as a matter of ordinary interpretation.  The provisions contain different, but not necessarily incompatible, requirements. 
  4. [82]
    Plot ratio is defined as:

“the gross floor area divided by the area of the site”.

  1. [83]
    Gross floor area is defined as:

“the total floor area of a building measured from the outside of the external walls, plus for roofed unenclosed areas, any portion of the floor area beyond a distance of 3 metres from the external wall.  It does not include:

a) the areas of spaces used for the parking or manoeuvring of motor vehicles;

b) the area of lift shafts;

c) the area of stairwells on any level other than the ground floor; or

d) floor areas located in a basement.”

  1. [84]
    Building is defined as:

“a fixed structure that is wholly or partly enclosed by walls and is roofed, and includes any part of a building.” 

  1. [85]
    It is apparent from these definitions, that Mr Robinson’s evidence about how a plot ratio of 0.8:1 might be achieved on the subject land involves a level of generalisation.  It also provides only two examples of how the plot ratio might be achieved.  The appellant did not put to Mr Robinson that it would not be possible to achieve a design that complies with each of specific outcomes O10, O61 b) and d) and overall outcome g) of the Eastern Beaches Locality Code. 
  2. [86]
    Further, specific outcome O61 b) does not require the building alignment fronting the street to be maintained across two storeys, as is proposed in the appellant’s design.  Other development in the Village Centre Zone employ design features, such as balconies at the upper levels.  Designs of that nature provide a consistent building alignment fronting the street at ground level while, at the same time, resulting in a lower plot ratio.  Other developments also incorporate design features such as laneways with openings at the centre of the site.  In re-examination, Mr Buckley gave evidence that such design measures would reduce the plot ratio. 
  3. [87]
    Having regard to the matters referred to above, I am not persuaded that it is not possible to achieve a design that complies with each of specific outcome O10, O61 b) and d) and overall outcome g) of the Eastern Beaches Locality Code.
  4. [88]
    The appellant says other developments in the Neighbourhood Centre Zone in the Eastern Beaches Locality exceed the plot ratio requirement.  That does not persuade me that the non-compliance is immaterial in this case.  Mr Buckley, the town planner retained by the appellant, appropriately conceded during cross-examination that development should not replicate the utilitarian, 40-year-old development that occurs elsewhere in the Peregian Village Centre.  Rather, it should accord with the current design goals set by the Planning Scheme. 
  5. [89]
    The appellant otherwise seeks to draw some support from the fact that the Council has approved development of a materially similar plot ratio on the subject land in the past, and that it extended that approval under the Planning Scheme.  That is a relevant consideration to which I must have regard.[22]  Having had regard to that consideration, I conclude that it diminishes the significance of this particular conflict. 

Is there compliance with the qualitative requirements with respect to built form?

  1. [90]
    For the reasons provided in paragraphs [27] to [30], [45], [47], [48], [52], [56] to [70], and [72] to [75] above, I do not accept the opinions of Mr Peabody or Mr Powell about compliance with the qualitative requirements with respect to built form.  Their opinions are inconsistent with my findings.  I also do not accept the opinion of Mr Powell that compatibility is achieved by sharing key qualities with buildings to the south, such as employing minimal or negligible side and front setbacks, a similar perceived maximum height and presenting a horizontal profile to the street; or by sharing key qualities with buildings to the north, such as being of similar height, presenting a horizontal roof profile to the street, and employing timber elements on the façade.  Even accepting these individual design attributes would be of a high quality, their combined effect is not such as to present a consistent or compatible development or to provide a positive contribution to the streetscape overall. 
  2. [91]
    I also do not agree with Mr Robinson’s approach to determining the overall acceptability of the proposed development, such as his suggestion that the proposed development should be “working harder”.[23]  There is force to the appellant’s criticisms of his evidence.  Nevertheless, I generally prefer the evidence of Mr Robinson identified in these reasons to that of Mr Peabody and Mr Powell about the visual impression created by the proposed building and its design, and about its compatibility with other developments on surrounding land.  Where I have relied on his evidence, I have done so because it accords with views that I have otherwise formed having regard to the plans, photographs and photomontages put before me.
  3. [92]
    For the reasons provided above, the proposed development, including its design elements, is not consistent or compatible with the bulk and scale of buildings on adjoining and nearby land.  It will present an appearance of excessive bulk to Kingfisher Drive, Heron Street, the adjoining village square, the street corner and Peregian Beach Park.  It will not positively contribute to the setting or provide a street focal point that contributes positively to defining the street.  The proposed development does not comply with the planning goals in specific outcomes O6 and O61 in issue between the parties.
  1. [93]
    These non-compliances are material as they also result in development that is inconsistent with the overall outcomes that inform those planning goals.  The bulky and visually dominant appearance of the proposed development is not in keeping with the surrounding streetscape and landscape qualities,[24] nor does it respond to the informal beachside character of the locality.[25]  Although I accept the evidence of Mr Powell that the proposed development represents an improvement when compared to the existing building on the subject land, for reasons already provided I am not persuaded it is consistent with the informal village-like atmosphere sought for the neighbourhood centre at Peregian Beach.[26]  I accept that the design of the ground floor introduces a level of visual permeability.  However, that does not overcome the overbearing and dominant character of the built form viewed as a whole, which overall detracts from the informal village-like atmosphere.

Does the proposed development comply with the relevant roof form requirements?

  1. [94]
    Specific outcome O12 contains requirements with respect to roof form.  It requires:

O12 Roof forms

a) contribute positively to the local skyline;

b) complement the beachside character of the locality;

c) use soft and articulated pitched or curved roof forms;

d) avoid low pitched (eg. less than 5 degrees) or box profiles/parapets; and

e) do not create opportunities for residents to overlook the private open space areas of neighbouring properties.”

(emphasis added)

  1. [95]
    The related probable solutions state:

S12.1 The main roof of the building has a roof pitch no less than 5 degrees and has minimum 600mm eaves to at least 75% of the perimeter of the building; AND

S12.2  Building and structures do not include roof top terraces.”

  1. [96]
    The appellant concedes that, in terms of roof treatment, the proposed development does not comply with probable solutions S12.1 and S12.2 and specific outcome O12 c).  The concession is appropriate.  The proposed development incorporates a roof top terrace on a flat roof structure.  The appellant joins issue with the Council’s allegation of non-compliance with specific outcomes O12 a), b) and d).  It relies on the evidence of Mr Peabody and Mr Powell in that regard.  It also says the non-compliance with specific outcome O12 c) is without material consequence. 
  2. [97]
    Mr Peabody considers that the informal beachside character of the locality is characterised by:
    1. (a)
      retail and restaurant spaces at the ground level addressing and activating the site frontages;
    2. (b)
      visual and physical permeability of the ground floor retail spaces;
    3. (c)
      awnings extending over the adjoining footpaths, offering a high level of amenity for public and patrons, including shade and weather protection and the opportunity for informal external dining spaces;
    4. (d)
      open and informal lobby spaces, including stairways and lifts, providing access from the ground level to upper levels;
    5. (e)
      office and restaurant spaces at level one overlooking the surrounding streetscapes; and
    6. (f)
      informal publicly accessible seating integrated into the building fabric.
  3. [98]
    Mr Peabody opines that although the proposed development does not express a pitched or curved roof, the built form is similar in character to a number of existing buildings within the general surrounding context that he says equally, and successfully, express the informal beachside character of the locality without an expressed pitched or curved roof viewed from the streetscape.  He references the “Peregian Digital Hub” building at 253 David Low Way as an exemplar of a contemporary development that manages to express an informal beachside character without a pitched or curved roof.  He also says the design is low rise.  As such, Mr Peabody opines that the proposed development satisfies overall outcome 7.7.2 g) i. of the Eastern Beaches Locality Code.
  4. [99]
    Mr Peabody also opines that the proposed development satisfies overall outcome 7.7.2 g) ii. of the Eastern Beaches Locality Code.  He considers that the design qualities intended are in keeping with the form of the surrounding streetscape as the proposed development will:
    1. (a)
      be of low rise character, in that it will be perceived as two-storey from the surrounding streetscape;
    2. (b)
      provide activated and permeable streetscape frontages with minimal setbacks;
    3. (c)
      present a continuous awning to all three active frontages, maintaining a high level of amenity for the public and patrons;
    4. (d)
      present an articulated form distinguished by the northeast and northwest corner elements separated by the recessed lobby element;
    5. (e)
      provide a timber batten screen element, punctuated by generous openings, for aesthetic and functional (including sub-tropical climate control) qualities;
    6. (f)
      integrate landscape elements into the building fabric; and
    7. (g)
      have a building envelope of similar proportion and elevation to the existing building envelopes.
  5. [100]
    Mr Peabody relies on his opinions that I have mentioned in paragraphs [97] to [99] above as the foundation for his further opinions that notwithstanding the proposed development does not use a soft and articulated pitched or curved room form, it will:
    1. (a)
      contribute positively to the local skyline and is in keeping with the form of the surrounding streetscape;
    2. (b)
      complement and be responsive to the informal beachside character of the locality;
    3. (c)
      provide a soft and articulated edge to the top of the building envelope that is not reliant on a pitched or curved roof form.  He says the delicate, lightweight character of the timber batten screens extend past the roof and roof deck.  Mr Peabody considers that the timber battens, coupled with the intertwined landscape, offer a contemporary elevation response to the informal beachside character of the locality in a similar manner to other contemporary developments within the general surrounding context; and
    4. (d)
      avoid box profiles/parapets through the careful introduction of the timber batten screens, which he says will offer a lightweight, feathered edge to the building elevations and will not be perceived as a solid parapet. 
  6. [101]
    Mr Powell gave evidence that he primarily defers to the architects on matters regarding specific outcome O12 and the roof form of the proposed development.  Nevertheless, he went on to opine that the local skyline, particularly the surrounding streetscape within 100 metres of the subject land, contains a mix of pitched and flat roof forms, where both types regularly present to the street as horizontal or near horizontal metal profiles.  He says that the proposed development contributes positively by adopting a “softened” skyline treatment to an otherwise horizontal profile, which he says is achieved by incorporating timber battens and climbing plants.  For the same reasons, Mr Powell opines that the roof form complements the beachside character of the locality and sits comfortably in the streetscape.  He accepts that the proposed roof is low-pitched or includes box profiles or parapets and, as such, may not satisfy specific outcome O12 d).
  7. [102]
    The opinions of Mr Peabody and Mr Powell place considerable store in the “softened” skyline treatment provided by the proposed use of timber battens and climbing plants.  I do not accept their evidence.  Having regard to the plans and the photomontages, I do not consider that timber battens and climbing plants will create a lightweight, feathered edge to the building elevations or meaningfully soften the appearance of a solid parapet.  To me, the monotonous regularity of the timber battens, in height and spacing, presents as a solid parapet.  The climbing plants do not alter that impression.  I do not regard the end result to be attractive.  I am not persuaded that this presentation of the roof form contributes positively to the local skyline. 
  8. [103]
    The character of the locality is presently informed by existing commercial buildings.  They include recent developments in close proximity to the subject land that generally have pitched roofing.  Examples include the “Peregian Boardwalk” development to the north of Heron street, the “Captain’s Daughter” building to the northwest, and the “Ribgy’s” building at 8 Kingfisher Drive.  There is also a large amount of older building stock that predates the current planning scheme.  It generally incorporates low pitched roofing concealed behind parapets, particularly for those buildings that are single storey.  In many cases, the visual impact of the flat roof on the older building stock is not such as to otherwise obliterate the impression of an informal beachside character created by those developments.  I am not persuaded that replicating the older flat roof form, and demonstrating consistency with that older building stock, demonstrates compliance with specific outcome O12 b).  In addition, even if the other design elements for the proposed development were to create an overall impression of an informal beachside character, that is not of itself sufficient to demonstrate compliance with specific outcome O12 b).  The roof form must complement the beachside character.  The appellant has not persuaded me that the roof form of the proposed development does so.  To the contrary, here the heavy and dominating appearance of the solid parapet on the proposed development is one of the design features that erodes the informal beachside character that would otherwise be achieved by the proposed development through those design attributes identified by Mr Peabody to which I have referred in paragraph [97] above. 
  9. [104]
    The appellant has failed to demonstrate compliance with specific outcome O12 d).  I do not accept the evidence of Mr Peabody that the introduction of the timber batten screens has avoided a box profile or parapet.
  10. [105]
    I do not accept the appellant’s submission that the non-compliances with specific outcome O12 are without material consequence.  For the reasons provided in paragraph [103], the existing dominance of flat roof form with or without box parapets does not persuade me that the non-compliance is without any material consequence.  Further, although the use is expressly contemplated and encouraged on the subject land, the Planning Scheme does not indicate that the use should be provided at the expense of the planned built form and character requirements.  To the contrary, overall outcome 7.7.2 g) supports the importance of the planning policy evident in the specific outcomes.  It indicates that the purpose of the code includes ensuring that the form of a building is “designed to be responsive to the informal beachside character of the locality, being low rise buildings with pitched or curved roofs …”.  The roof on the proposed development is not pitched or curved, nor does it complement, or positively contribute to, the informal beachside character of the locality.  It differs materially from the existing approval in that respect. 
  11. [106]
    In the existing approval, the design incorporated a series of pitched elements on the roof (being solar panels), which break up its otherwise flat appearance.  Although this was not a strong visual feature, it was sufficient to ensure that the flat nature of the roof did not erode the informal beachside character otherwise conveyed through the combined effect of the various design elements of that building.  I accept the evidence of Mr Robinson about the design attributes that more effectively break down the bulk of the building the subject of the existing approval.  They include:
    1. (a)
      the equivalence in height between the upper and lower levels, which causes the building to be read as a two-storey building;
    2. (b)
      the operable nature of the screens to the upper level, which provide a more transparent façade when they are open;
    3. (c)
      the variation in materials on the upper level, which create depth and shadow play in the façade and can be contrasted with the fixed, repetitive veneer created by the timber battens in the proposed development;
    4. (d)
      the extensive openings at the ground storey, which give the ground level a light, open and transparent appearance; and
    5. (e)
      the lightweight, thin edged metal awning incorporating clear panels.
  12. [107]
    For the reasons provided above, the proposed development does not comply with the relevant roof form requirements and the non-compliances are material.

Conclusion regarding built form, character and visual amenity considerations

  1. [108]
    In Jakel Pty Ltd v Brisbane City Council & Anor,[27] I observed:

“Whether the proposed development acceptably responds to the performance outcomes and overall outcomes with respect to height, bulk, scale, setbacks, transitions and separations and is acceptable in terms of its character and amenity impacts, is an evaluative judgment on which reasonable minds might differ.  Questions of consistency of bulk and scale with streetscape character and amenity involve judgments that are “inherently subjective and can be nebulous”.”

  1. [109]
    As I also noted in that case,[28] sometimes subtle variations in dimensions from surrounding built form can, in combination, result in an overall unacceptable impact.  This is such a case.
  2. [110]
    I accept the evidence of Mr Powell that various dimensions of the proposed building and elements of its design are consistent with other nearby buildings.  There are aspects of the proposed development that are also consistent with the existing approval, such as the plot ratio.  Nevertheless, my overall impression of the proposed development is that it presents as an overdevelopment of the subject land in its locational context.  It is an unacceptable outcome in terms of visual impact on the existing streetscape and having regard to the intended character of the locality. 
  3. [111]
    The overall unacceptable impact is not attributable to a single dimension of the proposed development, but is evident from a combination of:
    1. (a)
      the significant plot ratio, which is a metric that reflects the proposed development’s high site coverage across two levels and absent features, such as balconies, that might otherwise mitigate the consequential appearance of bulk;
    2. (b)
      the incorporation of a parapet rather than a curved or pitched roof;
    3. (c)
      the monotonous timber battens, which exacerbate the building’s verticality;
    4. (d)
      the height and design details of the proposed awning, which will cause the awning to have a low, heavy and potentially oppressive presence on the public space; and
    5. (e)
      the lack of meaningful setback and openings at level one, which will create an impression that the building crowds the street and looms over it. 
  4. [112]
    Having regard to the combined effect of these design attributes, I am not persuaded that the proposed development complies with specific outcomes O4 b) and c), O6 a) and b), O10 a), O12 a) to d), O61 d), e) and g) and probable solutions S4.1 e), S12.1 and S12.2 of the Eastern Beaches Locality Code.  It is also not consistent with overall outcomes 7.7.2 g) i., ii. and iv., and jj) iv. of the Eastern Beaches Locality Code. 
  5. [113]
    The nature of the non-compliances are such that they cannot be addressed through the imposition of conditions.  They are not incidental features of the design.  Rather, they go to the very heart of it.  They warrant refusal of the proposed development.  The list of matters raised by the appellant as warranting approval of the proposed development in the exercise of the Court’s discretion do not persuade me otherwise.  For reasons already provided above:
    1. (a)
      I do not accept that the proposed development presents a high quality streetscape with design elements and building form that contributes positively to the streetscape and locality;
    2. (b)
      I do not regard consistency between the proposed roof form and existing roof forms in the Peregian Beach Neighbourhood Centre to be compelling;
    3. (c)
      I am not persuaded that the built form outcome on the subject land is appropriate, regardless of the fact that the predominant built form in the Peregian Beach Neighbourhood Centre might have a plot ratio of greater than 0.8:1;
    4. (d)
      I am not persuaded that the contribution that the design of the proposed development will make to the ongoing architectural evolution of the Peregian Beach Neighbourhood Centre is a positive one;
    5. (e)
      I do not accept that the proposed development will provide the rejuvenation of a vacant building.  It results in its replacement with a built form outcome that is unacceptably inconsistent with that sought by the Planning Scheme;
    6. (f)
      I am not persuaded that approval of the proposed development would resolve conflict between specific outcome O10 on the one hand, and overall outcomes 7.7.2 g) and specific outcomes O61 b) and d) on the other; and
    7. (g)
      although the proposed development is, to an extent, consistent with the type and form of development the subject of the existing approval, the design attributes employed in the design of the existing approval are more effective at breaking down the bulk of the building.  Consequently, it presents a built form outcome that is more aligned to that sought under the Planning Scheme.
  6. [114]
    In the circumstances, the proposed development should be refused

Does the proposed development provide sufficient carparking?

  1. [115]
    In light of my findings with respect to the built form of the proposed development, it is unnecessary to consider in detail the differences between the parties with respect to the sufficiency of carparks.  It suffices to say that I was satisfied that this was not a matter that warranted refusal.  To the extent that the proposed development may have failed to comply with the requirements of specific outcome O9 of the Business Uses Code, and the overall outcome in s 14.110.2 e) and specific outcome O7 of the Driveways and Carparking Code, the evidence of the Council’s traffic engineer, Mr Holland, persuades me that compliance could be achieved by the imposition of a condition.  Sufficient carparks would be available, and the proposed development would not adversely impact on existing public parking, if a condition were imposed limiting the hours of operation of the rooftop bar.  This would reduce the additional demand on the public parking at peak times, when the public parking is prone to be at capacity.

Conclusion

  1. [116]
    For the reasons provided above, the appellant has not discharged the onus.  The appeal is dismissed.  The decision to refuse the appellant’s development application, communicated by decision notice dated 6 June 2019, is confirmed.

Footnotes

[1] Planning and Environment Court Act 2016, s 43.

[2] Planning and Environment Court Act 2016, s 45.

[3]  The Noosa Plan 2006 Version No. 9 was the categorising instrument in force at the time the development application was properly made on 19 December 2018.

[4] Planning Regulation 2017 (Qld), s 27(1)(g).

[5] Planning Regulation 2017, s 27(1)(g).

[6] Planning and Environment Court Act 2016, s 47.

[7] Planning Act 2016, s 59(3).

[8] Planning Act 2016, s 60(2)(a).

[9] Planning Act 2016, s 60(2)(d).

[10] Planning Act 2016, s 60(2)(b).

[11]  [2018] QPEC 30; [2018] QPELR 941, 957 [102].  Leave to appeal was granted by the Court of Appeal but the appeal was dismissed in Brisbane City Council v Klinkert [2019] QCA 40; (2019) 236 LGERA 88.

[12]  [2019] QPEC 10; [2019] QPELR 684, 694 [54].

[13]  Noosa Plan, s 1.8.

[14]  Noosa Plan, s 1.9.

[15]  See s 7.7.1.

[16] The Planning Place Pty Ltd v Brisbane City Council [2019] QPEC 62; [2019] QPELR 396, 408-10 [75]-[77] citing Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25; (2017) 224 LGERA 166.

[17]  It is my understanding that in surveying and construction “RL” stands for reduced level.  It refers to equating elevations of survey points with reference to a common assumed datum.  It is a vertical distance between survey point and adopted datum plane.  It is considered as an elevation (or level), which is used as reference to reckon heights or depths of other important places.

[18]  The proposed use is defined in Noosa Plan 2006 as “Entertainment and Dining Type 1 Food & beverages”.

[19]  [2020] QPEC 4, [43]-[45].

[20]  [1998] HCA 28; (1998) 194 CLR 355, 381-2.

[21] Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; [2014] QPELR 686, 698 [52]; AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, 11-2 [37], citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304-5.

[22]  See paragraph [7](b) above.

[23]  It is not relevant to consider whether a better design might be achieved.  The appropriate test is whether the proposed development has sufficient merit to warrant approval, rather than whether some better form of development might be possible.  See Lyons v Brisbane City Council & Ors [2009] QPEC 102; [2010] QPELR 190, 193 [26] and Baskerville & Ors v Brisbane City Council & Anor [2010] QPEC 143; [2011] QPELR 333, 336 [10].

[24]  See overall outcome 7.7.2 g) ii. of the Eastern Beaches Locality Code.

[25]  See overall outcome 7.7.2 g) i. of the Eastern Beaches Locality Code.

[26]  See overall outcome 7.7.2 jj) iv. of the Eastern Beaches Locality Code.

[27]  [2018] QPEC 21; [2018] QPELR 763, 822 [277] citing Caltibiano v Brisbane City Council [2004] QPEC 36; [2005] QPELR 60, 64 [24] and Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64; [2017] QPELR 88, 101 [62].

[28]  citing the observations of His Honour Judge Jones in BTS Properties (Qld) Pty Ltd v Brisbane City Council [2015] QPEC 47; [2015] QPELR 943, 961 [67].

Close

Editorial Notes

  • Published Case Name:

    Andema Pty Ltd v Noosa Shire Council

  • Shortened Case Name:

    Andema Pty Ltd v Noosa Shire Council

  • MNC:

    [2020] QPEC 46

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    09 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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