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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Catterall & Ors v Moreton Bay Regional Council & Anor  QPEC 52
DEREK CATTERALL, FIONA HENDY, HALIL ACAROGTU, SZILVIA AGOSTON, THOMAS BAIRD, HELGA BAIRD, ERNIE BRANSON, ERIKA DECSINE, KAREN CATTERALL, BRUCE COATES, KAY
COATES, ALISON HAYNES, IVAN LANG, HEATHER LANG, SUZY MELLOR, SUSAN NAPIER, JULIA NUSKE, DEANNA PALLISTER, VALERIE STEEL, SEAN WALKER, BARBARA FERDINAND, CHRIS
LARSEN AND DAPHNE GIBB
MORETON BAY REGIONAL COUNCIL (respondent) and –
NICOLAS DAOUD & CO PTY LTD
118 of 2020
Planning and Environment Court
Eligible submitter appeal for a change application
Planning and Environment Court of Queensland, Brisbane
1 October 2020
13, 14, 15 and 16 July 2020
Williamson QC DCJ
PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to approve a change application for other than a minor change to a development approval – where the changes proposed increase building height but reduce density, bulk and scale – whether the subject land is suitable for high density residential development – whether the changed development, by reason of its height, bulk, scale and density, will have unacceptable impacts on character and amenity – whether the height, bulk scale and density of the changed development complies with the respondent’s planning scheme – whether the change application should be approved or refused.
Acts Interpretation Act 1954, s 14B
Planning Act 2016, ss 45, 59, 60, 78, 82, 229 and Sch 1 & 2
Planning & Environment Court Act 2016, ss 43, 45, 46 and 47
Ashvan Investments Unit Trust v Brisbane City Council &
Ors  QPEC 016;  QPELR 793
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46
Mr D Jones for the appellants (direct brief)
Mr C Hughes QC and Mr E Morzone for the respondent
Mr T Sullivan QC and Mr N Loos for the co-respondent
Moreton Bay Regional Council legal services department for
Connor O’Meara for the co-respondent
Table of Contents
The land and surrounding locality 3
The adopted planning controls 4
The extant development approvals 7
The changes proposed to the approved plans 8
The statutory assessment and decision making framework 11
Planning issues arising for consideration as a consequence of the changes15
Jurisdiction and the onus of proof 15
Residential density 18
Building height and bulk 22
Character and scenic amenity 32
Other alleged non-compliances with the planning scheme 34
Reasonable expectations 35
Exercise of the discretion 37
- The co-respondent is the registered owner of three adjoining lots situated at 2-8 Gayundah Esplanade, Woody Point (the land). Two extant development approvals attach to the land. In combination, the approvals authorise the start of a new mixed use development comprising a Hotel, Food Service and Multiple Dwelling. The built form approved is 9 to 11 storeys in height and accommodates 174 units (the approved development).
- The co-respondent seeks to change the approved development. To facilitate this, a change application was made to Council in April 2019. The nature of the changes proposed are substantial and characterised as ‘other than for a minor change’. Changes of this kind engage s 82 of the PA. Section 82(2) required the change application to be administered, assessed and decided by Council as if it were, inter alia, the original development application inclusive of the changes, but made when the change application was made. This had the consequence that the change application was treated as if it were impact assessable and required public notification. The notification process attracted 172 properly made submissions.
- The change application was approved by Council on 6 December 2019. The approval was communicated to the co-respondent, and eligible submitters, by way of decision notice dated 6 December 2019.
- This is an appeal by a number of eligible submitters against Council’s approval. Collectively, they oppose the change application on the basis the development resulting from the change would be unacceptable having regard to its height, bulk, scale, density and consequential impacts on character and amenity.
- For the reasons that follow, I am satisfied the co-respondent’s change application should be approved, and the appeal dismissed.
The land and surrounding locality
- The land:
- (a)comprises three lots, namely Lot 12 on RP 808977, Lot 99 on RP30270 and Lot 101 on RP 30270;
- (b)is 6,917 m2 in size;
- (c)slopes from its north-eastern corner (Lot 101) to its south-western corner (Lot 12), with a cross-fall of approximately 5 metres;
- (d)has three road frontages, namely Gayundah Esplanade to the east, Lilla Street to the south and Kate Street to the west;
- (e)is vacant, save for Lot 101, which is improved with a two storey dwelling house; and
- (f)by reason of its topography, and orientation, provides an opportunity for attractive water views in three directions (east, south and west).
- The land adjoins two lots, both of which are located to the north. The northern most boundary of the land is created by Lots 12 and 101. The boundary line is not straight. It steps up in a northerly direction from Lot 12 in the west to Lot 101 in the east. Two lots share a common boundary with this northern edge. The adjoining lot, which is to the north of Lot 12 and adjoins Lot 101 to the east, is improved with a two storey block of flats and separate garage structure. The adjoining lot to the north of Lot 101 is improved with a two storey dwelling house.
- Existing land uses in the surrounding area are as follows:
- (a)the Gayundah Coastal Arboretum and Picnic Point, located to the east of Gayundah Esplanade;
- (b)a cluster of existing high rise apartment buildings to the south of Lilla Street, comprising three ten storey towers, and vacant land with an approval for a nine storey tower; and
- (c)one and two storey dwelling houses located on the western side of Kate Street, with similar development extending a considerable distance to the west and north.
- The town planning experts called to give evidence in this appeal agreed the character of the surrounding area is mixed. This is the product of the area being one in transition. It is a developing area where dwelling houses have been, and will continue to be, subject to incremental change to more intense residential development. The character of the area will, as a consequence, change over time. That the area is one in transition is evidenced by, inter alia, the approved development, and the cluster of high-rise residential development to the south of the land. This change is promoted by a number of deliberate forward planning decisions reflected in Council’s contemporary planning controls.
The adopted planning controls
- Moreton Bay Regional Council planning scheme version 3.0 (the planning scheme) was in force at the time the co-respondent made its change application to Council.
- Part 3 of the planning scheme contains the Strategic framework. For the purpose of articulating the policy direction of the planning scheme, the Strategic framework structure includes, inter alia, twelve themes that ‘work together to articulate the complete policy direction’. Two of the themes divide the planning scheme area into ‘planning areas’ and adopt a ‘Place Model’. The land is included in the North Lakes-Redcliffe-Moreton Bay Rail corridor planning area and the Urban neighbourhood place type.
- Section 3.14.10 of the Strategic framework deals specifically with the Urban neighbourhood place type and foreshadows the extent of change anticipated in areas so designated. The provision states, in part:
“Urban neighbourhoods include existing low density suburbs…on the Redcliffe Peninsular that have the attributes and capacity for change to more walkable, compact and sustainable communities…
These areas will be targeted for change over time. These are places that now or in the future will be within easy walking distance of an Activity centre and/or to frequent public transport that can convey people in a short period of time to an Activity centre and to important transport nodes that link with other places quickly and regularly. These places also have an underlying structure that allows for change to occur. This structure has a permeable and legible street network, or potential for one to be developed, to support redevelopment to higher densities. The age of its building stock and the layout and size of the lots in these areas will facilitate this change…
Increasing the residential density in these areas will be encouraged to increase the local resident population, to support a greater range of local businesses, particularly in Activity centres and encourage the use of public transport. Increased residential densities will help support a balanced mix of other uses including schools, local shops and offices, child care centres, community and health facilities, open space and recreation facilities. The minimum land use intensity across Urban neighbourhoods is 60 people and/or jobs per hectare (for people this equates to a minimum net residential density of 30 dwellings per hectare).
The form of development is generally attached buildings, however a diversity of built form is encouraged. A range of housing types that provide a medium density form of development are envisaged.
The character of an Urban neighbourhood place type will change considerably over time from its character in 2012…” (emphasis added)
- A number of specific outcomes in s 126.96.36.199 of the Strategic framework provide direct support for the above statement of forward planning intent. In particular, it is stated that:
“Urban neighbourhoods will be vibrant and attractive places with attractive streetscapes, active frontages facing onto the street and architecturally designed development;”And:
“Higher density residential development is…within walking distance of quality, well serviced parkland;”
“Development across an Urban Neighbourhood place type has a minimum land use intensity of 60 people and/or jobs per hectare (for people this equates to a minimum net residential density of 30 dwellings per hectare);”
“The character of an Urban Neighbourhood will substantially change over time from the character of the area in 2012…”
- In a residential area intended to ‘substantially change over time’, it is readily foreseeable that the process of incremental change has the potential to adversely impact upon existing development that is not consistent with the intended future form of development. This impact is anticipated by the Strategic framework. Specific outcome 188.8.131.52, paragraph 11 does not suggest the impact is fatal for new development. Rather, the provision suggests that competing interests (new as against old) are balanced in this way:
“…High quality urban design outcomes and amenity have priority over existing character.”
- That the land is included in an area earmarked for transition from low density residential development to higher density forms of residential living is reinforced by its zoning. The land is included in the General residential zone. The zone is divided into four precincts that anticipate increasing levels of development intensity. The land, and part of the surrounding area, is included in the Urban neighbourhood precinct. The most intense residential development in the General residential zone is anticipated in this precinct, where a site density of ‘at least’ 45 dwellings per hectare is encouraged.
- The stated purpose of the Urban neighbourhood precinct is:
“The Urban neighbourhood precinct provides a mix of dwelling types and sizes with an emphasis on attached dwellings and apartment buildings. Medium to high density neighbourhoods are located within walking distance of a diverse range of services and facilities.”
- Multiple dwellings are encouraged in the Urban neighbourhood precinct. This use is ‘accepted development’ where, inter alia, building height does not exceed 21 metres and site cover does not exceed 40 per cent for land ‘greater than 2501m2’ in size.The code for the precinct requires multiple dwellings to be designed, sited and constructed of a scale and density consistent with ‘the medium to high density residential character of the area’.This phrase is not defined in the planning scheme. Building height overlay maps in the planning scheme suggest that buildings of 21 metres and 39 metres in height are supported in areas where a medium to high density residential character is intended.
The extant development approvals
- The approved development is authorised to start by two existing development approvals. Each approval is granted subject to conditions, including a condition requiring development to occur generally in accordance with a number of approved plans (the approved plans). The approved plans depict development comprising 174 units and a retail tenancy, provided in three high rise buildings. The high rise buildings are constructed over a shared building base that includes basement carparking. The total site cover for the development equates to 53.4 per cent of the site area. The approved plans indicate the development is to be staged.
- The high rise buildings are described in the approved plans as ‘Building A’, ‘Adjoining 27 unit development’ and ‘Building B’. Collectively, when considered in plan view, the approved development reads as a U-shaped built form. Save for a 6.1 metre gap, the built form has a continuous 9 to 11 storey façade that is uniform in design. The gap in the façade occurs along the southern boundary between Building A and B. The central part of the land, which is surrounded by the built form on, essentially, three sides, contains a podium with private recreation space. This space includes a pool and shaded BBQ facilities.
- Building A contains 63 units. It has a maximum height of 29.6 metres above natural ground level. It makes up a substantial part of the approved built form and is, for all intents and purposes, L-shaped, presenting a continuous façade to Gayundah Esplanade. The façade of Building A wraps around the curved south-eastern boundary of the land, co-incident with a change in the road alignment. It extends 56.56 metres west from the curve in Lilla Street. The façade has a maximum height of 10 storeys, save for a small part presenting to Lilla Street, which reads as 11 storeys. The increase in the number of storeys at this location is due to the slope of the land revealing an additional storey below level 1, and above natural ground level. The additional storey is not apparent when viewed from Gayundah Esplanade.
- The ‘Adjoining 27 unit development’ is a reference to that part of the development which adjoins the northern end of Building A. The built form presents a 9 storey façade to Gayundah Esplanade, which is 20 metres in width and steps down from the 10 storey Building A structure. It has a maximum height of 24.25 metres above natural ground level. The minimum setback from the northern edge of the built form to the boundary of the land is 5.0 metres.
- Building B is located on the western side of the land and contains 84 apartments. A retail tenancy is approved on ground level at the corner of Lilla and Kate Street. The built form presents a 10 storey façade to Kate Street, which is 46.89 metres in length. A 10 storey façade is presented to Lilla Street for a distance of 27.695 metres. This part of the façade is separated from Building A by a distance of 6.1 metres. Building B has a maximum height of 29.25 metres above natural ground level.
- To assist me in determining this appeal, I had the benefit of Mr Peabody’s evidence. He is a registered architect. Mr Peabody described the approved development in this way at paragraphs 24 and 25 of his statement of evidence:
“24. The building envelopes, and associated apartment balconies, typically follow the alignment of the three road frontages with a predictable curved balcony feature presenting to the south east corner of Gayndah (sic) Esplanade and Lilla Street.
25. The alignment of the building envelope (as described in paragraph 24), along with the general consistency of building heights…and the minimal punctuation between the buildings…results in a uniform and undifferentiated built form with little articulation of the building envelope.”
- Against the background of paragraphs 24 and 25 of his statement of evidence, Mr Peabody expressed the following opinions relevant to the architectural merit of the approved development:
“ 26. From an architectural prospective, the uniform and undifferentiated built form outcome described in paragraph 25 exacerbates the bulk and volume of the building scale.
27. Equally, the consistency of the built form (described in paragraphs 25 & 26), notably the general consistency of building height, has the potential to reinforce the monotony of height and scale of building envelopes within the surrounding context which, read as a whole, may be perceived [as] a ‘wall’ of development.”
- I accept Mr Peabody’s evidence in this regard. It is made good having regard to the approved plans, particularly the architectural elevations. The elevations vividly demonstrate that the approved built form will present as a ‘wall of development’ to the three road frontages of the land. The uniform nature of the design, coupled with its lack of articulation, does little, if anything, to alleviate this impact. It is an impact that will be particularly noticeable, in my view, when the approved development is viewed from the immediate road network, and nearby residential properties.
The changes proposed to the approved plans
- The changes proposed to the approved plans are identified in Table 2 of the Town Planning Joint Report. In broad terms, the changes are as follows:
- (a)the number of units are reduced from 174 to 158;
- (b)the size of the retail tenancy is reduced from 400m2 to 195m2, and relocated to the corner of Gayundah Esplanade and Lilla Street;
- (c)site cover is reduced from 53.4 per cent to 32.9 per cent;
- (d)the staging plan is amended as a consequence of (f) below;
- (e)building heights are increased in part, and decreased in part;
- (f)the volume of built form across the land is reduced, and redistributed away from low density residential development to the west;
- (g)the design of the development, and its architectural expression, is changed to provide greater articulation and modulation in plan view, and in elevation; and
- (h)the interface with adjoining development to the north is amended to ameliorate amenity and privacy impacts.
- The changes described in sub-paragraphs (a) to (d) require no elaboration. It is, however, necessary to briefly dwell upon the changes described in sub-paragraphs
(e) to (h).
- The changes to the approved development are depicted in a set of architectural plans dated August 2019, which were provided to Council in response to an information request (the amended plans). The amended plans, like the approved plans, depict a building base comprising a basement and lower ground floor. The changes to the development are proposed above this building base. Primarily, the changes involve reducing, and redistributing, the overall volume of built form.
- The built form comprising ‘Building A’ and the ‘Adjoining 27 unit development’ has been redesigned to redistribute greater building bulk to the southern, and eastern, portions of the land where there are no adjoining neighbours, and a potential for 180 degree views to Moreton Bay. In plan view, the built form remains effectively Lshaped. In elevation, it is 10 storeys in height at the western and northern edges, and then increases in a series of steps up to 15 storeys at the south-eastern corner. At the highest point of the built form, the amended plans depict development that is 4 storeys and 17.4 metres taller than the approved plans.
- Building B is deleted and replaced with eight town houses that are 3 to 4 storeys in height. This has reduced building height in this part of the development by 6 storeys and 18.75 metres. It can also be observed that the proposed town houses have a smaller footprint than Building B. This has the consequence that the area of private recreation space internal to the development has been expanded to fill the footprint of built form depicted in the approved plans.
- The amended plans have also sought to deal with the uniform and undifferentiated design of the approved development. The built form follows the alignment of the three road frontages, but unlike the approved plans, presents a highly articulated form that is modulated vertically and horizontally. The modulation is achieved by stepping the heights of buildings up towards the south-east corner, coupled with a ‘saw tooth’ profile for the building façade. The comparison is best demonstrated by reference to the figure attached to these reasons and marked ‘A’.
- As I have already observed, the land has two adjoining neighbours to the north. The amended plans reduce the building height presented to the block of flats to the north from 10 to 4 storeys. The minimum setback distance is also increased to the boundary from 5.04 metres to 10.57 metres. The amended plans increase the height of the building adjacent to the boundary with the two storey dwelling to the north. This has been offset by an increase to the minimum setback distance from 5 to 8.615 metres. The amended plans also reduced the area provided for balconies that are orientated to the north. This is to reduce the potential for overlooking and associated privacy impacts on adjoining development.
- It was submitted on behalf of Council and the co-respondent that the design depicted in the amended plans is superior to the approved development. That point is made good having regard to Attachment A, which permits a comparative exercise to be undertaken in visual terms between the two designs.
- The point is also made good comparing the plans and elevations for each design. The amended plans provide for development that is more responsive to local context than the approved development. In this regard, the amended plans reduce and redistribute building bulk, height and scale away from sensitive land uses. The amended design also incorporates greater articulation and modulation to ameliorate the impact of building bulk, height and scale. In visual terms, the design reflected in the amended plans is more appealing, and far less repetitive, than the approved development. This is an outcome that is consistent with the adopted planning controls, particularly those provisions encouraging development that achieves high quality urban design and amenity outcomes.
- A number of experts who gave evidence in this appeal undertook a comprehensive comparison of the approved and amended plans. Mr Peabody’s evidence about this exercise was of great assistance. As an architect, it led him to conclude:
“…the Change Application presents a well-considered design outcome for the subject land which is respectful of the surrounding context and shall
contribute to an articulated and modulated skyline…” And:
“…From an architectural perspective, the Change Application presents as a superior and more desirable design outcome when compared against the Development Approval which shall result in a less intense development including less yield, less site cover and less building volume.
- I accept Mr Peabody’s evidence. The evidence is consistent with opinions expressed by Mr Perkins and Mr Buckley. They too made the point that the amended plans, if approved by the court, would deliver a superior development outcome in comparison to the approved plans. For the reasons given above, and in paragraphs  and  to , I accept the evidence of Mr Perkins and Mr Buckley in this regard.
The statutory assessment and decision making framework
- The assessment and decision making framework for the co-respondent’s change application is set out in s 82 of the PA. Subsection (2) of this provision states:
“82 Assessing and deciding change applications for other changes
(2) For administering the change application, and assessing and deciding the change application in the context of the development approval, the relevant provisions apply—
(a) as if—
- (i)the responsible entity were the assessment manager; and
- (ii)the change application were the original development application, with the changes included, but was made when the change application was made; and
(b) with necessary changes.”
- The phrase ‘relevant provisions’ is defined for the purposes of s 82 in subsection (6) as follows:
“(6) In this section— relevant provisions means— section
- (a)45(6) to (8); and
- (b)part 2, division 2, other than section 51; and
- (c)part 3, other than sections 63 and 64(8)(c); and
- (d)the development assessment rules.”
- To administer the co-respondent’s change application as if it were the original development application inclusive of the changes proposed, requires the impact assessment process to be applied, with necessary changes. The ‘relevant provisions’ of the PA for this mode of assessment include:
- (a)s 45(7), which states:
“The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.” (b) s 59(3), which states:
“Subject to section 62, the assessment manager’s decision must be based on the assessment of the development carried out by the assessment manager.”
(c) s 60(3), which states:
“To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide—
- (a)to approve all or part of the application; oror
- (b)to approve all or part of the application, but impose development conditions on the approval; or
- (c)to refuse the application.”
- Section 82(4) of the PA is also relevant to assessing and deciding the corespondent’s change application. This provision states, in part:
“(4) To remove any doubt, it is declared that the following matters apply, only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval—
(a) the assessment benchmarks;
(d) if the development to which the change application relates requires impact assessment—any matters the assessment must or may be carried out against or having regard to under section 45(5)(a)(ii) or (b).”
- It was uncontroversial as between the appellants and co-respondent that s 82 of the PA conferred a broad discretion on the responsible entity (or this court on appeal) to decide the change application as if it were impact assessable. In this regard, I was referred to Ashvan Investments Unit Trust v Brisbane City Council & Anor  QPELR 793, - and the discussion to similar effect in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46.
- I agree the discretion to decide the change application is broad and, subject to contextual changes, is guided by, inter alia, relevant principles discussed in Ashvan Investments and Murphy. An important contextual change is identified in ss 82(2) and (4) of the PA. Both of these provisions include the phrase ‘in the context of the development approval’. The purpose of this phrase is to make clear that the assessment and decision making process occurs in the context that the application is one to change an existing development approval, as distinct from a fresh development application. In practical terms, this means the assessment and decision making process for a change application under s 82 of the PA is founded upon, but not limited to:
- (a)an identification of the change/s proposed to the development approval;
- (b)an identification of the planning issues, be they positive or negative, arising for consideration as a consequence of the change/s proposed to the development approval; and
- The town planning experts called to assist in this appeal disagreed about the nature and breadth of an assessment for a change application under s 82 of the PA. Some four pages of their joint report was devoted to this topic. The substance of the discussion reveals that Mr Perkins, and Mr Buckley, approached their assessment on the footing it was constrained by important context, namely, the existence of the development approval the subject of the change. Mr Adams, the town planning expert called by the appellants, adopted a different approach.
- Mr Adams approached the assessment of the application on the footing that the changes proposed to the approved plans were of such significance that the existing development approvals should be given little, if any, weight. As a consequence, it was his view that a full assessment of the amended plans was required against the current assessment benchmarks, but carried out in the absence of context provided by the extant development approvals. In this regard, at paragraph 58 of the Town Planning Joint Report, Mr Adams said:
“Simply put one bad planning decision should not lead to another bad planning decision. A change application for the changes proposed, effectively requires full assessment against the Planning Scheme and current assessment benchmarks particularly those that relate to density and height. The assessment is not simply against the existing development approval to reach the conclusion it is an improvement and therefore should be approved.” (emphasis added)
- It was contended on behalf of the appellants that the approach adopted by Mr Adams to the assessment of the change application was correct. In this context, the point made was that the assessment process ‘needs to be a broad one’ and not bounded as Mr Perkins and Mr Buckley suggest. It was said that a broad assessment was required given the ‘wholesale changes’ proposed to the approved plans.
- Whilst it can be accepted that the assessment process for a change application under s 82 of the PA involves more than a comparison of approved and amended plans, it is of little assistance to describe the assessment, in general terms, as broad or narrow. This is because the breadth of an assessment will be a product of the precise changes proposed to an approval, and the planning issues arising for consideration as a consequence of those changes. In some cases, the extent of change may require a broad assessment. In other cases, the extent of the change may require a more limited assessment. No hard and fast rule can be prescribed as a consequence. It will inevitably turn on the facts and circumstances of each case. Two points can however be made with certainty about the breadth of an assessment under s 82 of the PA.
- Having regard to s 82 of the PA, it is clear the assessment process does not require the development, including the change, to be assessed as if it were a fresh development application. Nor does the exercise involve an assessment of the changes proposed in isolation, or out of context. That this is so is confirmed by the phrase ‘in the context of the development approval’ where it appears in ss 82(2) and (4) of the PA. This is, in turn, confirmed by the explanatory note for the Planning
Bill 2015, which states, in part:
“The intent of the reference to assessing and deciding the change application ‘in the context of the development approval’ is that the proposed change should not be considered in isolation. Neither however is the entirety of the development including the change re-assessed. Instead, it is intended the change be assessed with reference to the context of the development approval already existing for the development.
For example, if there is a development approval for a 10 storey building, and an applicant seeks to change the approval to add a further two storeys, the additional two storeys is intended to be assessed in the context of a ten storey building, against the assessment benchmarks relevant to a 12 storey building in that locality.
To this end, the clause clarifies that only the matters for assessment… that are relevant to assessing the change in the context of the original approval are relevant for the assessment of the change application.
For example, if a development approves development for several different purposes (such as a shopping centre, cinema and service station), and the change application seeks only to change the development for the purpose of the cinema, it is unlikely that the assessment benchmarks relevant to the other purposes would be relevant in assessing the change application.”
- The approach adopted by Mr Adams to his assessment of the co-respondent’s change application does not sit comfortably with the matters discussed in paragraphs  and .
The issues arising as a consequence of the changes proposed
- As I have already observed, an assessment of the co-respondent’s change application is founded upon, inter alia, an identification of the planning issues arising for consideration as a consequence of the changes proposed. Here, the issues are identified in the appellants’ reasons for refusal. Those reasons are articulated in an agreed list of issues.
- Having regard to the agreed list of issues, the appellants contend the corespondent’s change application should be refused because: (1) the resulting development does not comply with the planning scheme; and (2) there are no matters of planning merit that warrant approval of the change application in the face of non-compliance with the planning scheme. The specific issues raised in terms of item (1) require the following topics to be examined, namely:
- (b)building height;
- (c)impacts on character and scenic amenity; and (d) community expectations.
- I will deal with each of the above planning issues having regard to the adopted planning controls. Before doing so, there are two issues arising out of the Planning and Environment Court Act 2016 (PECA) requiring specific consideration. The matters go to the court’s jurisdiction, and the onus of proof in the appeal.
Jurisdiction and the onus of proof
- The right of appeal exercised by the appellants is a creature of statute. It is created by s 229(1) of the PA read with Schedule 1, Table 2, Item 2 of the same Act. The relevant part of the Schedule states, in part:
“2 Eligible submitter appeals
For a development application or change application other than an excluded application, an appeal may be made against the decision to approve the application, to the extent the decision relates to –
- (a)any part of the development application or change application that required impact assessment; or
- (b)a variation request.”
- This appeal is against a decision to approve a ‘change application’. This is one of the decisions for which a right of appeal is provided in Schedule 1, Table 2, Item 2 of the PA. The phrase ‘change application’ is defined in Schedule 2 of the PA by reference to s 78(1) of the same Act, which states:
“78 Making a change application
- (1)A person may make an application (a change application) to change a development approval.”
- Section 78 is contained in Chapter 3, Part 5, Division 2, subdivision 2 of the PA. The subdivision provides a mechanism to change a development approval, other than the currency period, after all appeal periods have ended. Such an application is assessed and decided in one of two ways. The process applying in any given case turns on, inter alia, the identity of the ‘responsible entity’, and whether the change proposed is a minor change as defined in Schedule 2 of the PA. Here, the responsible entity for the change application was Council, and the changes sought are more than a minor change to an existing development approval. The very nature of the changes proposed will necessarily result in substantially different development.
- The right of appeal conferred by the PA does not draw a distinction between a change application for a minor change, or, one for other than a minor change. The right of appeal is simply for a change application as defined. That right, once exercised, is subject to the PECA. Section 43 of PECA requires the appeal to be conducted by way of a hearing anew. The Court’s powers in deciding the appeal are provided by, inter alia, s 47 of PECA. This provision requires the court to do one of the three things prescribed in subsection (1), namely confirm, change or set aside the decision appealed against.
- Section 46 of PECA is relevant to the nature of an appeal commenced in the court. Subsection (4) of this provision is relevant to a change application, and states:
“The P&E Court can not consider a change to the development approval the subject of a change application under the Planning Act, section 78, unless the change is only a minor change to the approval.”
- Taken in isolation, the plain and literal meaning of s 46(4) of PECA precludes, without qualification, the court from considering a change to a development approval that is not a minor change as defined. If this construction is assumed to be the intention of parliament, it has a material consequence for the court’s jurisdiction in appeals about change applications seeking approval for ‘other than for a minor change’. Applied to the present case, it would preclude the court from considering the very changes proposed by the co-respondent’s change application. Such an outcome is not, in my view, one that would be readily imputed to the legislature. It is incongruous with the appeal right conferred under the PA. It renders that right, once exercised, ineffectual or futile. To defeat the appeal right in this way is an absurd outcome.
- The absence of an express qualification to the operation of s 46(4) of PECA for appeals such as the present is unfortunate. In my view, there is a good deal to be said for an amendment to rectify this. That this is so, and, that a literal interpretation of s 46(4) of PECA leads to an absurd result, does not however mean the provision can be ignored. It has work to do. This begs the question: is there an alternative construction that permits s 46(4) to operate effectively without cutting across the appeal right exercised by the appellants?
- In my view, there is an alternative, and preferred construction, permitting s 46(4) to operate effectively, while not cutting across the right of appeal exercised by the appellants. This point of construction is not assisted by the explanatory notes for the
Planning Bill 2015, which provides no relevant clarification or confirmation. Rather, it is informed by the scheme of the legislation to be considered and applied, which comprises both PECA and PA. In particular, the relevant scheme of the legislation emerges from the legislative provisions discussed above in paragraphs  to .
- Section 46(4), in the context of the scheme of the PA and PECA, is properly understood as a constraint applying to the court when determining an appeal about a change application for a minor change (as defined) to a development approval. In this sense, the provision serves to confirm that the court, in exercising its appellate function, does so by reference to the same limitation applying to the responsible entity at first instance. The limitation requires the extent of any change considered by the court to be a minor change as defined. The need for the limitation is clear. If the court, exercising its appellate function, considers a change that falls outside of the definition, it has the consequence that a materially different assessment and decision making framework applies to that change. It is a framework that the decision maker at first instance did not apply. Section 46(4) puts beyond doubt that such an outcome is not intended.
- When considered in this light, the alternative construction permits the right of appeal exercised here, and s 46(4) of PECA, to work effectively and harmoniously. A construction that achieves this outcome is to be preferred to a literal construction that leads to an absurd result.
- Section 46(4) of PECA is not the only provision requiring specific attention. Section 45 of the same Act identifies the party who bears the onus in an appeal. Each of the parties submitted that the onus in this appeal rested with the corespondent. In support of this proposition: (1) the appellant cited s 45(2) of PECA; and (2) Council and the co-respondent each cited s 45 of PECA.
- Section 45 of PECA is in the following terms:
“45 Who must prove case
- (1)For a Planning Act appeal about any of the following matters, the appellant must establish the appeal should be upheld—
- an application or request under the Planning Act for which the appellant was the applicant or person making the request;
- a local government’s decision, or the conditions applied, under a local law about the use of premises or the erection of a building or other structure under the Planning Act;
- an infrastructure charges notice, or a notice amending an infrastructure charges notice, under the Planning Act;
- a decision by a tribunal.
- (2)For a Planning Act appeal about a development application by a submitter or advice agency, the applicant must establish the appeal should be dismissed.
- (3)For a Planning Act appeal by the recipient of an enforcement notice under the Planning Act, the enforcement authority that gave the notice must establish the appeal should be dismissed.
- (4)For a Planning Act appeal by an affected owner of a compensation claim under the Planning Act, section 32 the local government required to decide the claim for the compensation under that section must establish the appeal should be dismissed.
- (5)In this section— advice agency see the Planning Act, schedule 2.”
- I was not satisfied that any part of s 45 applies to an appeal by an eligible submitter against a decision approving a change application. This is because: (1) subsection (1)(a) applies where the appellant is an applicant for an application or request – that does not apply here; (2) subsections (1)(b),(c) and (d), (3) and (4) have no application to the facts of this case; and (3) subsection (2) is directed to an appeal about a ‘development application’, which does not apply here. A development application is defined by reference to Schedule 2 of the PA. It is ‘an application for a development approval’. A change application is not an application of this kind. It is a separate species of application, and is defined in s 78 of the PA.
- Section 45 of PECA is, in my view, silent as to who bears the onus in this appeal. This silence is unfortunate. Like s 46(4) of PECA, there is a good deal to be said for a legislative amendment to make plain what is intended.
- That s 45 is silent as to who bears the onus in this appeal is, in any event, of no moment. I am satisfied that, even if it were assumed the co-respondent bears the onus, it has been discharged. The co-respondent has established that the appeal should be dismissed.
- I will now turn to deal with each of the merits issues.
- The change application seeks approval to reduce the number of units on the land. The reasons for refusal relied upon by the appellants do not assert this reduction, in its own right, gives rise to any appreciable, let alone adverse, planning consequence warranting refusal. Rather, they contend the change application should be refused because:
- (a)the land is not an appropriate location for high density residential development; and
- (b)the density proposed in the amended plans exceeds the average residential density of Woody Point, and is inconsistent with the existing and planned character of the area.
- The first of the two contentions invite the court to examine whether the land, as a general proposition, is an appropriate location for high density residential development. I do not accept this is an issue that needs to be examined in the context of the co-respondent’s change application. The approved development is clear evidence that this question has already been asked, and answered in the affirmative.
- The approved plans authorise high density residential development on the land. The density authorised is greater than that provided in the amended plans. In this regard, the density of the approved plans is equivalent to 251.5 dwelling units per hectare. This compares to the amended plans, which provide for a density equivalent to 228.4 dwelling units per hectare.
- Both the approved and amended plans depict high density residential development. That the density is to be reduced does not alter this position. The reduction in density is of no planning consequence. So much was confirmed in an exchange I had with Mr Adams during his oral evidence, which was in the following terms:
“His Honour: Mr Adams, if you take the development as approved, do you describe that as medium or high density residential development? --- It would be … high density residential. Medium to high density residential.
And the subject proposal, you describe as high density residential? … Yes.
So in that sense, what has changed? --- And I… must admit, that was one of the few things I grappled with, is that intrinsically linked with - in context of the approval, there was an approval for high density residential and there still is.
So if it’s high density residential in the approved case and high density in the other than a minor change application, there is no change, is there?... -- No, that’s right. The category of that type of development, if it’s low, medium or high, stays the same …”
- If, contrary to the above, it is necessary to examine whether the land is a suitable candidate for high density residential development, the planning scheme answers that question in the affirmative.
- The most particular part of the planning scheme applying to the land is contained in the Urban neighbourhood precinct provisions of the General residential zone code. In this part of the planning scheme, the precinct provisions confirm that medium to high density residential development is contemplated on the land. Indeed, an Overall outcome for the precinct specifically identifies that residential uses are to be, inter alia, of a density consistent with the medium to high density residential character of the area.
- To put the matter beyond doubt, a quantitative measure is prescribed in the planning scheme for development density in the Urban neighbourhood precinct. It is identified in an Overall outcome and Performance outcome of the General residential zone code applying to the precinct. In both cases, the quantitative measure is expressed as a minimum number of dwelling units per hectare.
- Performance outcome PO1 and its accompanying example in the precinct code provide, in part, as follows:
The Urban neighbourhood precinct has a medium to high residential density of at least 45 dwellings per Ha (site density).
Residential uses have a minimum site density of:
b. 45 dwellings per hectare for all other areas.
- The amended plans comfortably comply with the site density prescribed in PO1 and E1. The same can also be said for the approved plans.
- The purpose of the prescribed minimum in PO1 and E1 is to achieve a ‘medium to high density’ residential character in the precinct. As I understand Mr Adams’ evidence, he did not suggest the amended plans depicted development that was anything other than medium to high density residential in nature. In these circumstances, I do not accept it is necessary to examine whether the land is, in fact, suitable for high density residential development. Compliance with PO1 above puts that issue beyond doubt.
- In advancing their case about density, the appellants relied upon particular aspects of Mr Adams’ evidence. Mr Adams suggested the land was not suitable for higher residential densities having regard to the Strategic framework in the planning scheme. In his view, the Strategic framework encouraged higher density residential uses only in, and around, designated centres and public transport nodes. Mr Adams’ point was that the land is not included in one of these locations and therefore unsuitable for high density residential development.
- Whilst this may have some superficial attraction, the difficulty is that the Strategic framework does not purport to limit higher, or increased, residential densities to areas located in, and around, activity centres or public transport nodes. In this regard, strategic outcome 3.6.5 of the Strategic framework, which deals with ‘infill development’ states, in part:
“Council will seek to increase residential densities and employment opportunities within the urban corridor and specifically within an adjoining activity centres and public transport in order to maximise access to and use of services and facilities and opportunities for use of public transport, walking and cycling and also adjacent to areas of high scenic amenity e.g. waterfront, environmental areas with high standards of amenity and accessible open space.” (emphasis added)
- The above provision encourages increased residential densities in areas adjoining activity centres and public transport. The provision also encourages increased residential densities in locations adjacent to areas of high scenic amenity. That increased residential densities are anticipated in each of these locations is confirmed by Map 3.13.3 of the Strategic framework.
- Map 3.13.3 identifies the location of Urban neighbourhood place types. The land is included in this place type. It can be seen from Map 3.13.3 that Urban neighbourhoods are located in areas proximate to designated centres. They are also located at Suttons Beach and Woody Point. The latter are removed from activity centres and public transport, but adjacent to areas of high scenic amenity.
- That Woody Point is one of two areas removed from an activity centre and public transport node, but encouraged to accommodate higher density residential development, is supported by the zoning of the land. The land is included in the most intense residential precinct of the General residential zone, which is the Urban neighbourhood precinct. The Overall outcomes for the precinct code, read in conjunction with the Strategic framework, confirm substantial change to the character of the precinct is anticipated over time. The precinct is intended to accommodate a compact urban settlement with a minimum residential density of 45 dwelling units per hectare. Medium to high density residential development is also expressly anticipated in the zone. In this context, I do not accept, as a general proposition, the land is an inappropriate location for higher density residential development.
- The second contention advanced by the appellants in relation to density invites the court to find that the amended plans will result in development that has an unacceptable impact on the character of the area. This is said to follow because the development exceeds the average density of existing development in the area. In this regard, Mr Adams assessed the average residential density of the area as being equivalent to 165 dwelling units per hectare. This calculation excludes the density of development depicted in the approved plans.
- I do not accept that Mr Adams’ approach to the assessment of residential density by reference to an average is appropriate. As a starting point, the assessment does not fairly consider the amended plans in the context of the extant development approvals. This is a fundamental error.
- Further, the assessment is too narrow.
- An assessment of the character of an area should be considered broadly, and fairly. Subject to the requirements of the adopted planning controls, this means it is an assessment that should be informed by not only existing character, but also: (1) an objective reading of the adopted planning controls to ascertain whether existing character is intended to remain unaltered or, like here, intended to change over time; and (2) extant development approvals granted in the relevant area by an assessment manager, but not yet acted upon.
- The planning scheme, and the provisions relevant to this case, do not contemplate that development density is examined by reference to an average density. Nor is it contemplated that density is examined by reference to existing development. The relevant, and most particular, test prescribed for development density is that stated in Performance outcome PO1 of the Urban neighbourhood precinct code. I have dealt with this provision in paragraphs  to  above. The amended plans comply with this provision of the planning scheme.
- For the reasons set out above, I am satisfied the density of the development depicted in the amended plans is consistent with the character of the area as anticipated by the adopted planning controls. That character, as expressed in the planning scheme, encourages a range of medium to high density residential uses. This is reflected in ss 184.108.40.206.1(1)(e)(i) and (x) and Performance outcome PO1 of the Urban neighbourhood precinct code provisions. The amended plans comply with these provisions of the planning scheme.
- Mr Perkins and Mr Buckley were of the view that the reduction in residential density was a positive feature of the co-respondent’s change application. This point assumes that the reduction in density ameliorates an impact/s of the development. In a general sense, I can accept that a reduction in residential density is a positive change, and will ameliorate an impact of the development in character and amenity terms. The extent it will do so, when considered in isolation, is, however, elusive. The true extent of amelioration is more readily apparent when the reduction in density it is coupled with the changes proposed to the built form. It is all of these matters, taken in combination, that result in a materially improved development outcome (in comparison to the approved plans).
- Accordingly, I am satisfied the changes proposed to the density of the approved development do not warrant refusal of the co-respondent’s change application.
Building height and bulk
- The amended plans seek approval to change the height and roof profile of the approved development. A decrease in building height is proposed along the western and south-western sides of the development. The reduction is in the order of 6 storeys, and 18.75 metres. An increase in building height occurs along the southern and eastern sides. At its highest, the building steps up with the topography of the land to 15 storeys in the south-eastern corner of the land. The increase in building height at this location equates to 4 storeys, and 17.4 metres.
- The amended plans reduce the bulk of the approved built form, and redistribute that bulk across the land. The redistribution manifests itself in the apparent length and width of the built form. It also manifests in changes to building height.
- The reduction in building bulk was measured by Mr Peabody in empirical terms. He calculated the volume of built form as depicted in the approved and amended plans. The calculations revealed that the volume of built form depicted in: (1) the approved plans equates to approximately 94,887 m3; and (2) the amended plans equates to approximately 87,495 m3. The difference in the calculated volumes represents a clear and discernible reduction. Visually, the extent of that reduction is discernible in the south-western corner of the land, which is adjacent to existing low density residential development to the west of Kate Street.
- The appellants make two points about the height and bulk of the development depicted in the amended plans, namely: (1) they invite the court to be circumspect about the benefits that flow from a decrease in the height and bulk of the built form; and (2) they contend the increase in building height is unacceptable, and warrants refusal of the change application.
- Turning to the first of the points raised by the appellants in this context, Council and the co-respondent invited the court to accept the evidence of Mr Peabody. He dealt with the architectural benefits of the changes proposed to the approved plans. Mr Peabody pointed out that the changes, if approved, will result in:
- (a)a reduction in building height to the western portion of the land that better responds to, and respects, existing development to the west on Kate Street;
- (b)a reduction in building mass presenting to the west, with consequential reductions in visual impacts associated with the wall of development depicted in the approved plans; and
- (c)a reduction in the impacts occasioned by building height and mass, namely overlooking, overshadowing and overbearing development when examined from the perspective of a nearby lot developed with a low density residential use.
- Mr Peabody also pointed out that a ‘terraced’ approach had been adopted in the design of the development depicted in the amended plans. It results in the built form stepping down in height with the fall of the land from east to west. This approach to the design: (1) facilitates the redistribution of building bulk across the land; and (2) allows for a sensitive transition to low density residential development to the west. Mr Peabody said this was a sound design approach. I accept his evidence. It is a design approach expressly encouraged by Performance outcome PO3b of the Urban neighbourhood precinct code in the planning scheme. This provision is dealt with in paragraphs  and .
- I accept that each of the architectural matters discussed in paragraphs  and , which are reflected in the amended plans, significantly improve the design and architectural merit of the approved development.
- Mr Adams expressed a contrary view. I do not accept his evidence in this regard.
- In my view, Mr Adams downplayed the significance of three matters relevant to the acceptability of the height, bulk and scale of development depicted in the amended plans. He downplayed: (1) that the bulk of the building was reduced and redistributed across the land; (2) that the amended plans provide for a more sensitive transition of built form to the west; and (3) that the changes proposed to the design reduced the bulk of the building by articulating, modulating and stepping what was otherwise a uniform wall of development. In my view, these changes collectively result in a superior development outcome compared to the development depicted in the approved plans.
- Turning to the second point identified in paragraph , the appellants’ primary focus in this appeal, as was confirmed by Mr Jones in his oral submissions, was the increase in height of the built form above that already approved. The amended plans reveal that this point applies to only part of the development. It is contended that the increase in height is excessive, and warrants refusal.
- In support of their position, the appellants called in aid Performance outcome PO3 of the Urban neighbourhood precinct code. It was submitted this provision, which deals specifically with building height in the precinct, would be cut across and compromised by the development depicted in the amended plans.
- Performance outcome PO3, and part of its accompanying example, are in the following terms:
Building height (Residential uses)
Buildings and structures have a height that:
Note – Refer to Planning scheme policy – Residential design for details and examples.
a. is within the minimum and maximum mapped on Overlay
map – Building heights; or
- The appellants accept that the amended plans comply with subsections b. and d. of Performance outcome PO3. They however take issue with subsections a. and c.
- Performance outcome PO3a requires the following question to be examined: is the height of the development depicted in the amended plans ‘consistent’ with the medium to high rise character of the Urban neighbourhood precinct?
- The phrase ‘medium to high rise character of the…precinct’ is not defined in the planning scheme. Mr Jones submitted that example E3 was a ‘strong guide’ as to the meaning of the phrase. The example refers to a building height overlay map. That map provides for a maximum building height of 21 metres, and a minimum height of 5 metres on the land. The submission made by Mr Jones has some superficial attraction, particularly given the notes set out on the building height overlay map, which state:
“This overlay map only affects your property if you wish to develop (e.g. change use, build or extend).
This map shows the height of buildings and structures supported by the planning scheme.
This overlay map assists with interpreting and applying development requirements throughout the planning scheme.
Refer to the relevant zone code, local plan code and development code for requirements associated with this overlay map.”
- I accept that E3 provides relevant context for determining the meaning of the phrase ‘medium to high rise character of the…precinct’ in PO3a. In this respect, it represents a useful starting point. I do not however regard it is a ‘strong guide’, or an inflexible standard as contended on behalf of the appellants. This, in my view, follows having regard to three contextual matters that can be identified in the planning scheme. The three matters of context are provided in ‘the relevant zone code’, which is identified in the note on the overlay map as identifying the ‘requirements associated’ with that map.
- First, the overlay map operates as a trigger for assessable development in the precinct. It does so by providing an empirical standard for determining whether development in the precinct is accepted development, or requires a development approval. In height terms, any development that exceeds 21 metres triggers the need for a development approval. In the context of this trigger, it can be said that a building less than 21 metres in height is supported in the precinct as accepted development. There are, however, no provisions in the planning scheme that suggest development exceeding 21 metres in height in the precinct is inconsistent or not supported. The planning scheme is silent in this respect. It anticipates that development exceeding 21 metres in height will be assessed on its merits against the relevant assessment benchmarks.
- Second, the building height overlay map is implemented through E3, which is an ‘example’ in the Precinct code. Provisions of this kind represent a ‘suggestion’ as to how compliance may be achieved with a corresponding performance outcome. This is confirmed in section 1.7.4 of the planning scheme, which deals with the status of examples. The provision states:
“Examples included in a code are not necessarily the exhaustive means of meeting the corresponding performance outcome or purpose of the code in full. An example may only meet part of the performance outcome. An example is also only one suggested way of meeting one or more aspects of the performance outcome. The specific circumstances in characteristics of a development may require a different outcome to the example included in the code in order to make the corresponding performance outcome.” (emphasis added)
- Finally, it can be observed that the height limit identified on the overlay map is not embedded in a performance outcome, or overall outcome. In this planning scheme, the drafters have embedded empirical measures in provisions of this kind where it is intended to convey that the measure has particular planning significance. For example, the empirical measures for development density are embedded in Performance outcome PO1 of the same precinct code in which PO3 is included. That an empirical measure for building height is not embedded in this way conveys that the expression ‘maximum’ on the overlay height maps, and in E3, should not be regarded as an inflexible standard in this precinct of the planning scheme.
- Council submitted that guidance as to the meaning of the phrase ‘medium to high rise character of the…precinct’ can be taken from the Planning Scheme Policy called up by the ‘note’ in Performance outcome PO3. A ‘note’ forms part of the planning scheme. The relevant Planning Scheme Policy is the Residential Design Planning Scheme Policy (the PSP).
- Section 1.1 of the PSP identifies the purposes of the policy as including:
“to… provide additional information in the form of images and explanatory text to provide guidance about satisfying assessment criteria identified in the planning scheme;
encouraging more innovative and site specific design solutions and less ‘cookie cutter’ development.”
- Section 3 of the PSP defines the residential typologies discussed in the document. The purpose of the typologies is to guide the design of future development. Two typologies are relevant to this case, namely ‘medium rise apartment’ and ‘high rise apartment’.
- Section 3.2 of the PSP provides guidance as to where the different typologies may be located. It expressly recognises that the best location for each typology can vary depending on a number of factors, including the place and its character; the street type and function; the width of the site; and the site’s location in relation to centres, neighbourhood hubs, parks and public transport. A number of tables are included in s 3.2 of the PSP to demonstrate how these factors can be balanced to determine the best location for each identified typology.
- For the Urban neighbourhood precinct, Table s 3.2.1 of the PSP suggests both medium, and high rise apartments may be located on a district collector street, and on a site having a primary frontage with greater than 35 metres. The land satisfies this criteria. It has a primary frontage width greater than 35 metres, and is located on a district collector street.
- Section 3.3 of the PSP includes a series of illustrations and examples that describe each residential typology. Section 3.3.8 describes a ‘multiple dwelling – medium rise apartment’ as expressing a number of typical features. It is identified as having a height of 4 to 6 storeys, and a site cover of 40 to 75 per cent. Section 3.3.9 describes a ‘multiple dwelling – high rise apartment’ as having a height of 7 or more storeys, and a site cover of 40 per cent.
- For the purposes of s 3.3 of the PSP, the development depicted in the amended plans comprises medium rise apartments in the west, and high rise apartments in the south and east. That the land meets the criteria identified in paragraph , and the development is characterised as medium and high rise apartments for the purpose of the PSP, is relevant to an assessment of the amended plans against Performance outcome PO3a of the Urban neighbourhood precinct code. It is certainly a good start, but it is not determinative.
- The issue to be determined is whether the amended plans, if approved, would result in development that is consistent with the character of the precinct, which is described as medium to high rise in nature. I am satisfied this is resolved in the affirmative having regard to the amended plans and the character of the precinct informed by planned, existing and approved development.
- With respect to planned character, the amended plans depict development that will be medium to high rise residential development as envisaged by the PSP. This character of built form is intended in the Urban neighbourhood precinct. Provisions of the planning scheme that express the intent in this regard are discussed in paragraphs  to , and  to . The provisions discussed therein do not seek to limit, in empirical terms, building height, bulk and scale. Rather, the stated intent reflects a desire for medium to high density urban design outcomes in a compact urban settlement where, inter alia, land is well serviced and enjoys access to high value open space. The amended plans depict development that is consistent with the intent for medium to high density development to be located on land enjoying good access to high value open space.
- The development depicted in the amended plans will be consistent with the height and bulk of the existing, and emerging character of the precinct. That character includes existing, and approved, medium to high rise residential development. This is borne out by exhibit 9, which is a document prepared by Mr Powell.
- I am satisfied that exhibit 9, considered with Mr Powell’s oral evidence, demonstrates that the development depicted in the amended plans will appear as part of a mosaic of medium to high density residential development in the precinct. Whilst the architectural expression of the building depicted in the amended plans is different to existing development, it will nonetheless be consistent in character terms with the mosaic having regard to matters of height, bulk and scale. In my view, the design depicted in the amended plans will add visual interest, in a consistent way, to the emerging character of the precinct.
- The appellants submit that the amended plans conflict with PO3a of the precinct code for three reasons, namely: (1) the design exceeds the height stated on the building height overlay map by an unacceptable amount; (2) the development is not consistent with the average height of existing high rise buildings in the area; and (3) the land does not enjoy any special categorisation under the planning scheme that justifies the height of the development depicted in the amended plans.
- As to item (1) in paragraph , I accept that the development depicted in the amended plans exceeds the height stated on the relevant overlay map by a significant margin. This does not however mean non-compliance with PO3a is established, and warrants refusal. This is because, for reasons already stated, the prescribed height, expressed in empirical terms, is an example, and not an inflexible standard.
- If it is assumed, contrary to my view that the height standard is to be treated as a hard and fast limit from which there is a significant departure, that limit is already exceeded in this locality. It is exceeded by existing, and approved, high rise development to the south of Lilla Street. As a consequence, to the extent the height standard is treated as a limit/cap, deliberate planning decisions, which cannot be undone, suggest it is imprudent to regard it as inflexible. This is consistent with the height standard being an ‘example’ that accompanies a performance outcome in the relevant precinct of the planning scheme.
- Item (2) in paragraph  assumes that it is appropriate to benchmark the highest point of the development depicted in the amended plans against an average height calculated for existing buildings in the area. It is with this test in mind that it is submitted the proposal exceeds an average, and is therefore unacceptable.
- The assumption underlying item (2) is not a sound one. Performance outcome PO3a does not require the amended plans to be measured against a so-called average. Rather, the provision requires the character of the precinct to be identified (being medium to high rise development) and the amended plans examined against that character for consistency. Such an assessment is not limited to existing development. As I have already said, relevant context in the planning scheme suggests otherwise. In particular:
- (a)PO3a does not constrain the assessment to ‘existing’ character in circumstances where the drafters of the planning scheme have limited the enquiry to existing circumstances where this is intended (compare PO3 with PO16 and PO17 of the same code);
- (b)the precinct in which the land is included is expressly anticipated to undergo considerable change over time, with the consequence that existing character may not be representative of the intended character, or representative of the yardstick against which future development is to be examined; and
- (c)the planning scheme expressly provides that the land is included in a locality where high quality urban design is anticipated, and prioritised at the expense of existing character (see paragraph ).
- If, contrary to my view, it is accepted that the medium to high rise character of the precinct is established by existing development, the amended plans depict development that is, in any event, consistent with that character. This is clear having regard to the visual aids before the court, read with Mr Powell’s evidence. His evidence, which I accept, was not seriously challenged in cross-examination. The evidence establishes that the development will form part of a cluster, or mosaic, of high rise residential development. It will not appear discordant with that cluster.
- As to item (3) in paragraph , it is correct to say that the planning scheme does not, as contended, designate the land a ‘landmark’ site, nor does it confer a special categorisation that supports the amended plans. This does not, however, advance the matter very far, if at all. The planning scheme includes the land in a designation which anticipates, and encourages, higher density residential development. The form of development depicted in the amended plans is of a bulk, height and scale that is consistent with what is intended. As to its appropriateness, this is informed by, inter alia, Performance outcome PO3 of the Urban neighbourhood precinct code. The amended plans comply with that provision, and, in turn, Overall outcomes (e)(i) and (e)(ix) of the same code, which require building bulk and scale to be consistent with the intended character of an area.
- For these reasons, I am satisfied the amended plans comply with PO3a of the Urban neighbourhood precinct code.
- The appellants also contend that the amended plans do not comply with PO3c. This aspect of the Performance outcome requires consideration to be given to the visual dominance of the built form in relation to the streetscape.
- The starting point for the examination of this issue requires three things to be acknowledged. First, the land is included in a precinct where the planning scheme supports medium to high rise buildings of 21 metres in height as accepted development. Second, the approved plans authorise built form that is 9 to 10 storeys in height and, as Mr Peabody said, will present a wall of development to the eastern, southern and western boundaries. The ‘wall’ will visually dominate the existing streetscape, if constructed. Thirdly, it must be recognised that the size of the land, coupled with the length of its frontages, means any redevelopment will necessarily be visually dominant in the local streetscape.
- Against the background of the above, I am satisfied the development depicted in the amended plans will not be visually dominant with respect to the streetscape beyond that reasonably anticipated having regard to the planning scheme and extant development approvals. If approved and constructed, the development depicted in the amended plans materially reduces the dominance of the built form to the west and south in comparison to the approved plans. This is achieved by reducing the height of the built form, coupled with a new façade design that is highly attractive and modulated with articulation in the horizontal and vertical plain. The end result is an attractive built form that will, having regard to the evidence, contribute positively to the streetscape. The contribution it will make to the streetscape will be superior to the development depicted in the approved plans.
- In this regard, Mr Peabody expressed the following view in relation to building height and its impact on streetscape:
“… the terraced approach to the built form of the Change Application results in a well-considered, highly articulated design outcome which carefully defers to the height of existing adjoining or adjacent neighbours, so as not to be visually dominant or overbearing with respect to the streetscape and presents as a modulated built form within the surrounding context…
In comparison, the Development Approval, with its general consistency of building height, has the potential of being perceived as a uniform and undifferentiated built form (paragraph 25) which shall have significantly greater visual dominance and sense of overbearingness against the lower scale existing built forms adjoining and adjacent the subject land on Kate Street…”
- I accept Mr Peabody’s evidence. It is made good having regard to the visual aids before the court.
- Mr Perkins pointed out that the proposed development would achieve a number of improvements from a streetscape perspective. He made this point having regard to the following features of the amended plans:
“The development proposed in the Change Application:
(a) improves the extent of landscaping (soft landscaping) along all frontages to the subject land… It will assist to soften the built form and improve the interface of development on the subject land with the adjacent streetscape;
- (c)relocates the non-residential floor space from the south western portion of the subject land to the south eastern portion of the site… together with the creation of a void above this floor space, a glass façade and landscaping (including public art/the replica art) assists to create a built form of a human scale at its immediate interface with the streetscape, increases casual surveillance, and reduces the extent of non-residential floor space directly facing lower density residential development;
- (d)increases the variation in setback of built form at the southern (Lilla Street frontage) and eastern (Gayundah Street) frontages of the subject land… improves the articulation of built form on the subject land…
- (e)increases the number of pedestrian access points to multiple dwellings which… enhances connectivity to the street and allows for any increased number of dwellings to be identified and directly accessible from the adjoining streets.”
- I accept Mr Perkins’ evidence.
- The evidence of Mr Peabody and Mr Perkins satisfies me that the development depicted in the amended plans complies with Performance outcome PO3c in the Urban neighbourhood precinct code.
- The appellants contend that the amended plans do not comply with PO3c because the development is 15 metres taller than the surrounding buildings, and will impose itself on the local area and the streetscape. I do not accept this submission.
- It is true to say that the built form depicted in the amended plans will be taller, in part, than existing buildings. However, the visual aids before the court do not make good that this will result in an adverse or unacceptable impact.
- As to the visual aids before the court, they were prepared by Mr Powell and demonstrate that the built form depicted in the amended plans will form part of a cluster of high rise buildings. The highest point of that cluster will be the development on the land, particularly that part located in its south-eastern corner. The development presents as a projection above an existing roof line. In this context, the visual aids demonstrate the projection will add visual interest to the existing roof line rather than detract from it. The impact of the tallest part of the built form on the land will be mitigated by all of the features discussed in paragraphs , ,  and .
- I pause to observe that Mr Adams prepared a number of visual aids to support his assessment of the amended plans. The images are contained in a further statement of evidence prepared by him. Mr Sullivan QC established in cross-examination that these visual aids are unreliable. In this regard, I accept the submissions made on behalf of Council at paragraph 48 of exhibit 31.
- For the reasons given above, I am satisfied the development depicted in the amended plans complies with PO3c of the Urban neighbourhood precinct code.
- Further, I am satisfied the development depicted in the amended plans complies with Performance outcome PO3 of the Urban neighbourhood precinct code in its entirety. Accordingly, the changes proposed to the height of the approved development do not, as a consequence, call for refusal of the change application.
- Finally in this context, I note the appellants placed reliance upon Overall outcome (e)(ix) of the Urban neighbourhood precinct code to warrant refusal. For the purpose of that provision, residential development is to be consistent in scale and density with the medium to high density nature of the area.
- When the scale and density of the development depicted in the amended plans is considered in context, I am satisfied compliance is demonstrated with Overall outcome (e)(ix). This follows, in my view, from the compliance demonstrated with Performance outcomes PO1, PO3, PO5 and PO8 of the Urban neighbourhood precinct code. In this regard, the appellants allege non-compliance with only PO3, which I do not accept. The balance of the Performance outcomes deal with building height, density, setbacks and site cover. Compliance with each of these aspects of the precinct code is a clear indicator that the height, bulk and scale of the built form proposed is fairly regarded as appropriate in all of the circumstances.
Character and scenic amenity
- The appellants contend that the development depicted in the amended plans is unacceptable from a character and scenic amenity perspective. As to character, it is submitted the amended plans are inconsistent with the existing character, as defined by the cluster of high rise buildings to the south of the land. As to scenic amenity, it is contended the amended plans, if approved, would result in development that does not ‘recognise and promote’ landscape values and scenic amenity across the region.
- For the reasons given above, I am satisfied the development depicted in the amended plans, in terms of its density, height, bulk and scale is consistent with the existing, emerging and planned character of the precinct.
- It was submitted by Mr Jones that the assessment benchmark determinative of the scenic amenity issue is s 3.4.5 of the planning scheme. This provision forms part of the Strategic framework and states:
“Recognise and promote landscape values and scenic amenity across the Region.
- Important scenic amenity areas, view corridors and viewpoints are protected; and
- Public access to significant and popular viewpoints is protected and enhanced.”
- Non-compliance is said to arise with the above provision of the planning scheme by reason, principally, of the height of the development depicted in the amended plans.
- Mr Powell undertook a detailed analysis of the development depicted in the amended plans and its impact in terms of visual amenity, scenic amenity and landscape values. This analysis included preparation, and consideration, of visual aids, including exhibit 9. This exhibit contained built form massing diagrams imposed on photographs of the area taken from a number of vantage points. The massing diagrams included the development depicted in the amended plans as well as development approved by Council, but not yet constructed.
- Exhibit 9 makes good the opinions expressed by Mr Powell to the effect that the height, bulk and scale of the development depicted in the amended plans will not unacceptably impact on landscape values and scenic amenity. The reasons given in support of this opinion, which I accept, can be summarised as follows.
- With respect to the viewing point towards Pelican Park, the main scenic view from this location is to the Central Business District of Brisbane and the D’Aguilar and Taylor Ranges. The views to the development would not be of high scenic value in this context. Figure VP01 in exhibit 9 does not suggest the approved development, or the development depicted in the amended plans, will dominate or unacceptably impact on landscape values or scenic amenity.
- With respect to the viewing point from the nearby jetty, the main scenic views available are coastal views, the Central Business District of Brisbane, and the Western Ranges. Existing high rise buildings can be seen from this view point. Those buildings form a mosaic of built form. I accept Mr Powell’s evidence that the development depicted in the amended plans will ‘fit quite well into that mosaic’. The visual aids for this view point also confirm that the proposed development will not appear as dominant, or even the tallest built form. It will fit comfortably into the landscape and not detract from scenic amenity values.
- From the viewing point at Suttons Beach, the visual aids demonstrate that the development will not be perceived as a dominant part of the view. It is barely visible in the photograph as it blends into the background of built form, with foreshore trees and buildings in the foreground. As Mr Powell said, the development depicted in the amended plans will be perceived in the distance as peeking through the tree line, but not drawing any particular attention to the viewer.
- At Suttons Beach, one would expect any viewer to be focussed upon the attractive bay and bayside views rather than a distant built form that is barely visible. In this context, it can fairly be said that the development depicted in the amended plans will not detract from landscape values or scenic amenity.
- From the lower viewing platform for the coastal arboretum, the visual aids confirm what is otherwise a matter of common sense. The scenic views enjoyed from this location are directed away from the proposed development and towards attractive water views and public parkland. As a consequence, neither the development approval, nor the development depicted in the amended plans, will unacceptably impact on the landscape and scenic amenity values of this view point. Further, exhibit 9 confirms that views from this location, even if directed towards the land, will be substantially screened by a significant change in typography.
- As I understand Mr Adams’ evidence, he took issue with the impact of the development on scenic values when viewed from the local road network. Mr Powell addressed this point. In doing so, he identified a number of features of the amended plans relevant to the visual experience for a pedestrian in the local road network. He said that visual interest is created at this level in the amended plans to mitigate the height, bulk and scale of the development. The measures include the provision of an awning, setbacks, articulation and landscaping to create, in effect, a visual distraction from the elevated built form above. I accept this is a well-recognised architectural design technique to achieve a sense of human scale at pedestrian level. I accept this has been achieved in the development depicted in the amended plans. It will, as Mr Powell said, serve to ameliorate the visual impact of the development at pedestrian level.
- Mr Powell’s evidence establishes that the development depicted in the amended plans will not adversely impact on scenic amenity, view corridors or important scenic views. This evidence also establishes that the development will not impede public access to significant and popular viewing points. I am, as a consequence, satisfied that compliance has been demonstrated with s 3.4.5 of the planning scheme.
- Finally, in the context of scenic amenity, it is to be observed that the planning scheme includes a scenic amenity overlay. This is called up in the Urban neighbourhood precinct code in Performance outcome PO109. Relevant mapping confirms it has application to the land and surrounding locality.
- The appellants do allege non-compliance with PO109. This is in circumstances where the provision requires consideration to be given to, inter alia, the following:
“…Building design responds to the bayside location and complements the particular bayside character and amenity by adopting and incorporating a range of architectural character elements...”
- Performance outcome PO109 requires development to complement the character and amenity of the area by adopting a range of architectural character elements. I am satisfied, having regard to Mr Peabody’s evidence, that a range of architectural character elements are reflected in the amended plans. The elements are discussed at paragraphs , ,  and .
- In the circumstances, I am satisfied that the character and scenic amenity issues raised by the appellants do not warrant refusal of the co-respondent’s change application.
Other alleged non-compliances with the planning scheme
- The appellants’ written outline contends that the amended plans do not comply with four provisions of the planning scheme. They have been dealt with above and comprise Overall outcomes (e)(ix) and (i) of the Urban neighbourhood precinct code; Performance Outcome PO3 of the Urban neighbourhood precinct code; and s 3.4.5 of the Strategic framework.
- An agreed list of disputed issues was tendered on the first day of the hearing. The list identifies a number of non-compliances with planning scheme provisions that were not the subject of submissions made on behalf of the appellants. The provisions that were identified as being in issue, but not the subject of written submissions, are contained in the Strategic framework. The provisions are ss 3.3.1, 3.5.3, 220.127.116.11 and 18.104.22.168.3.
- Section 3.3.1 deals with a requirement to reinforce local character. Section 3.5.3 requires development to, inter alia, contribute to a sense of place and identity. Section 22.214.171.124 requires development to give consideration to, inter alia, impacts on the open space network and green spaces. Section 126.96.36.199.3 requires consideration to be given to residential character, and the need for such places to be vibrant and attractive.
- I am satisfied it is unnecessary to dwell upon these additional provisions of the Strategic framework. They do not raise an issue that is not otherwise considered in relation to the provisions identified in paragraph .
- A key feature of the appellants’ case is the contention that the amended plans depict development inconsistent with reasonable community expectations. In support of this proposition, reliance was placed upon the evidence of Mr Adams, and the statements of a number of local residents.
- I have dealt with Mr Adams’ evidence above. I do not accept his evidence represents a reliable basis upon which to examine community expectations in the circumstances of this case.
- I have also considered each of the lay witness statements tendered on behalf of the appellants, along with exhibit 23. The latter is a bundle of properly made submissions made to Council during the public notification process for the change application. In considering all of this material, it is clear a number of planning issues are raised against the development depicted in the amended plans.
- Mr Buckley fairly identified the planning issues raised against the amended plans in the lay witness statements. The points raised include suggestions that the development will:
- (a)adversely affect local amenity by eroding the character of Woody Point and impacting on its relaxed, laid-back, peaceful atmosphere;
- (b)cause a loss of sense of place, including through the removal of a character dwelling;
- (c)represent excessive height and scale, and dominate the skyline;
- (d)be out of character with such an ultra-modern design;
- (e)cause a loss of privacy, and be overbearing on private open space;
- (f)obliterate views through the site;
- (g)cause the loss of a significant tree;
- (h)impact on local walkways and recreation space;
- (i)cause adverse traffic conditions; and
- (j)set a precedent for future development.
- I am satisfied that similar views to those identified above are expressed in the properly made submissions.
- I accept that the views expressed by each of the lay witnesses in their statements, and in the properly made submissions, are honestly and sincerely held. The difficulty is that I do not accept that these views represent reasonable community expectations. The views are not, in my view, properly informed by an objective reading of the adopted planning controls.
- As I have already observed, Woody Point is an area in transition. This transition is the product of a clear shift in land use planning, which is embodied in the planning scheme. That document identifies a deliberate forward planning decision to transition Woody Point, in part, to an Urban neighbourhood precinct. Such an area is earmarked as suitable for intensification to achieve a compact urban settlement. A bi-product of the intensification process will, as is said in the Strategic framework, result in change over time. It is anticipated that the change will result in a high degree of urban design and amenity. To achieve this, the Strategic framework makes it plain that urban design outcomes will prevail over existing character considerations.
- The changes foreshadowed by the planning scheme are well underway. It is evident in the cluster of high rise development located to the south of the land. This cluster includes both existing and approved high rise residential development. Woody Point will continue to evolve in this way with, or without, the development approval or the development depicted in the amended plans. It will evolve into something other than a village where development of a substantial size and density is promoted. The development depicted in the amended plans is consistent with the form and scale of development promoted by the planning scheme in this regard.
- The matters discussed in paragraphs  and  were not, in my view, fairly confronted by the appellants in this appeal. They are matters that clearly emerge from, inter alia, an objective reading of the planning scheme.
- There are two further matters that suggest the lay witness evidence does not, in any event, represent a sound basis upon which to assess community expectations.
- First, it appears to be accepted by all parties that reasonable expectations as to development are to be informed by, inter alia, the adopted planning controls. Here, the expectations of the lay witnesses were founded, wrongly, on the premise that the planning scheme contains an inflexible building height standard. For reasons already given, the building height overlay map for the relevant precinct is not implemented through the planning scheme in a way that conveys it is to be regarded as an inflexible development standard. Existing development in the Urban neighbourhood precinct already exceeds the maximum height stated on the overlay map.
- Second, and related to the first issue, community expectations should be informed having regard to extant development approvals, both on the land and adjoining it. Here, the development approvals which are the subject of the change application are extant. They inform the community’s expectations as to development that may occur on the land. The lay witness statements and properly made submissions gave insufficient weight to this fact. In this regard, the criticisms levelled at the amended plans in the lay witness statements, and properly made submissions, are advanced absent any recognition that the same criticisms are applicable to the approved plans.
- In short, I am satisfied the views expressed in the lay witness statements, and in the properly made submissions, do not establish a reasonable expectation against which the amended plans should be examined. The statements, and properly made submissions, should not, as a consequence, stand in the way of an approval of the co-respondent’s change application.
Exercise of the discretion
- The discretion to decide the co-respondent’s change application is broadly expressed in s 60(3) of the PA. This is the discretion applying to an assessment manager (or this court on appeal) deciding the fate of an impact assessable application. The exercise of that discretion is not constrained by a conflict and grounds test. It calls for the following question to be answered in this case: should the co-respondent’s change application be approved or refused?
- I am comfortably satisfied this question is answered in favour of approval.
- For the reasons given above, an approval should follow because the amended plans comply with the adopted planning controls in force at the date the change application was made to Council. In addition, the amended plans represent a superior development outcome to that depicted in the approved plans. The improved development outcome is achieved through:
- (a)a reduction in density;
- (b)a reduction in building bulk;
- (c)the redistribution of building bulk so as to re-locate the tallest, and bulkiest part of the development to the south-eastern corner of the land, which has no adjoining neighbours and is well removed from existing low density residential uses;
- (d)a material increase in the extent of articulation in the built form, both horizontally and vertically, complemented by variability in setbacks to each of the road frontages and the boundary to the north;
- (e)a reduction in the height of the development within the western portion of the land, contributing to an improved transition to the low density residential area to the west; and
- (f)an improved interface with adjoining lower density residential development to the north, thereby reducing the potential for impacts by reason of overshadowing, overbearing and overlooking.
- Accordingly, the change application should be approved.
 For the reasons given above, it is ordered that:
- The appeal is dismissed.
- The respondent’s decision to approve the co-respondent’s change application, communicated by way of decision notice dated 6 December 2019, is confirmed.
Decision notices dated 15 January 2018 and 2 August 2018.
As defined in s 78(1) of the Planning Act 2016 (PA).
This includes the HMQS Gayundah Shipwreck memorial located at Picnic Point, with the wreck beyond the waterline.
Ex.5, paragraph 20.
s 3.1, paragraph 3 b.
s 188.8.131.52, paragraph 3.
s 184.108.40.206, paragraph 6.
s 220.127.116.11, paragraph 9.
s 18.104.22.168, paragraph 11.
s 22.214.171.124, paragraph 4.
The extent of the precinct is identified in Figure 5 of Ex.5, p.59. Save for an area of land between Caroline and Alfred Street, the precinct is the area of land contained within Caroline Street to the north, Gayundah Esplanade to the east, Moreton Bay to the south and Oxley Drive to the west.
s 126.96.36.199.1, Overall outcome (1)(s).
Table 188.8.131.52.1, RAD 1, read with Building height overlay (Ex.5, Figure 6, p.60).
Table 184.108.40.206.1, RAD 5.
s 220.127.116.11.1, Overall outcome (1)(e)(ix).
See Performance outcome PO3(a) of the Urban neighbourhood precinct code and Performance outcome PO9(a) in Table 18.104.22.168.2 of the Redcliffe Kippa Ring Local Plan, read with the Building height overlay map OM-61 BH. This overlay anticipates a building height of 39 metres.
Ex.26, p.46 and T2-68, Line 32 – T2-69, Line 12 (Peabody).
For example, paragraph .
Ex. 30, paragraph 5.18.
Ex. 30, paragraphs 5.18-5.24 and Ex. 32, paragraph 27.
For example s 82(4)(d) of the PA may require ‘relevant matters’ to be considered.
s 82(2) of the PA.
s 82(4)(a) of the PA.
Ex. 5, pp 15-19.
T3-75, L23–T3-76, L31.
Ex. 5, paragraph 58 and Ex. 22, paragraph 11.
As is permitted by s 14B(1)(c) of the Acts Interpretation Act 1954.
A change application for a minor change.
Compare ss 81 and 81A of the PA with ss 82 and 82A.
Ex. 30, paragraph 4.20.
T3-42, L13 to 28.
s 22.214.171.124.1, 1, e, (ix).
s 126.96.36.199.1, 1, a.
See paragraph .
T2-44, Line 27 to 39.
Ashvan Investments Unit Trust (Supra).
- Published Case Name:
Catterall & Ors v Moreton Bay Regional Council & Anor
- Shortened Case Name:
Catterall & Ors v Moreton Bay Regional Council & Anor
 QPEC 52
Williamson QC DCJ
01 Oct 2020