WAW Developments Pty Ltd v Brisbane City Council
[2015] QPEC 38
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- WAW Developments Pty Ltd v Brisbane City Council[2015] QPEC 38
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WAW Developments Pty Ltd v Brisbane City Council[2015] QPEC 38
WAW Developments Pty Ltd v Brisbane City Council[2015] QPEC 38
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | WAW Developments Pty Ltd v Brisbane City Council [2015] QPEC 38 |
PARTIES: | WAW DEVELOPMENTS PTY LTD (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO.: | 3586 of 2009 |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 21 August 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 & 4 November 2014 and 20 & 21 April 2015 |
JUDGE: | Rackemann DCJ |
ORDER: | The appeal will be allowed and the development application approved, but on the basis of the alternative proposal. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICANT APPEAL – Regularisation of unlawful outdoor dining area into footpath – where appellant put forward a revised proposal and the council put forward an alternative proposal – urban designs & visual amenity – appropriate width and length of structure |
COUNSEL: | D Favell for the appellant T Trotter for the respondent |
SOLICITORS: | Colwell Wright Solicitors for the appellant Brisbane City Legal Practice for the respondent |
Introduction
- [1]This appeal is against the respondent’s refusal of an application for a development permit for a material change of use for a restaurant. The development permit is sought in order to regularise the unlawful extension of an existing restaurant at the ground level of a building. That building sits on a triangular shaped parcel of land at the corner of Commercial Road, Wyandra Street and Masters Street at Newstead. The extension has been constructed in the footpath area of Wyandra Street. Because this part of Wyandra Street is sloping, the extension has been facilitated by the construction of a steel and concrete deck above the footpath adjacent to the restaurant, to which it gives direct access.
- [2]The structure, which rises to approximately 2.7m in height between the top of the balustrade and the bitumen footpath at its northern end, consists of:
- (a)a ramp starting near Commercial Road, which joins onto the structure;
- (b)the surface of the structure which provides an area for tables and chairs; and
- (c)approximately ten steps at the northern end.
- [3]A second access point from the building to the structure has been opened at a point near the stairs at the structure’s northern end. Consequently, what is sought as a restaurant extension also currently doubles as an access to another part of the building. When the matter first came on for hearing that access was to an office. At the time of the resumed hearing, that area was in the throes of being fitted out for a second restaurant. The appellant however, did not seek to amend its application, which is on the basis that the extension is for the first restaurant only.
- [4]Because the application is for land within the footpath, it was required to be supported by a State Resource Entitlement. That was initially a matter of controversy. The Court of Appeal ultimately found that a letter provided by the Department of Environment and Resource Management was sufficient.[1]
Regularising an Unlawful Use
- [5]That the structure exists has little significance in terms of whether it ought to be approved. Whilst the fact of its existence may assist in better understanding the proposal and its impacts, the Court neither seeks (in this proceeding) to punish the appellant for unlawful constructing it (by refusal of the development application), nor does it start from any presumption that the structure ought be allowed to stay (or should be allowed to stay in its current form). It is simply a case of assessing the application on its merits, recognising that it is the appellant that bears the onus of establishing that the appeal should be allowed and the application approved.[2]
The Applicable Planning Instruments
- [6]The development application was made during the currency of City Plan 2000. That planning scheme was amended in January 2011 and was subsequently superseded by City Plan 2014. The application falls to be considered on the basis of the laws and policies which existed at the time the application was made, but the Court may give such weight as it considers fit to later laws and policies.[3]
- [7]In this case significant weight attaches to the more recent planning documents which, starting with the 2011 amendments to City Plan 2000, and continuing with the provisions of City Plan 2014, evince a relevant change in planning strategy which renders the area one which is in transition. It is important, in that context, to consider the planned future development and amenity of the area. It was rightly conceded, on behalf of the appellant, that the provisions of City Plan 2014 should be given significant weight.
- [8]The current planning scheme applies, and the former planning scheme applied, to roads. They are (or were) taken to be within the same Area classification or zoning (as the case may be) as the adjoining land. At the time the development application was made the land was included in:
- the light industry Area, and
- the Newstead and Teneriffe Waterfront Local Plan and the Commercial Road precinct (which was then intended to provide an employment and business node).
- [9]Under City Plan as amended in 2011 the land was included in:
- multipurpose centre MP2 area, and
- the Newstead and Teneriffe Waterfront Local Plan and the Commercial Road precinct (which was then intended to be transformed into a medium to high density urban community).
- [10]In the City Plan 2014 the land is included in:
- ME1 mixed use (inner city) zone, and
- Newstead and Teneriffe Waterfront Neighbourhood Plan – precinct NAP-002 (which is intended to be transferred into a medium to high density urban community).
- [11]Under the provisions City Plan 2000, as amended in 2011 and the provisions of City Plan 2014, the land falls within a precinct which is planned to transform from an industrial area to a medium to high density urban community. Residential and commercial uses are being encouraged throughout the precinct. The provisions of the planning documents are, unsurprisingly, concerned with, amongst other things, sound urban design and the amenity of the street in terms of streetscape presentation and pedestrian amenity.[4] As Mr Schomburgk acknowledged in the joint town planning report:
“There can be no doubt that the relevant provisions of the planning schemes, regardless of which version we consider, seek to promote a safe and pleasant streetscape in this locality.”
The Issues
- [12]Whilst a list of issues was lengthy, it may be summarised as relating to visual amenity, conflict with the town plan, public use issues and pedestrian and footpath use issues.
- [13]Mr Schombergk, the consultant town planner engaged by the appellant, saw the principal issues of importance, from a town planning perspective, as the extent to which the structure impinges on the width of the footpath in Wyandra Street and the visual impact of the structure on the streetscape. Mr Brown, the consultant town planner engaged by the respondent, similarly saw the key issue as being “the impact of the structure proposed within the footpath in terms of both the function and appearance of the street in a prominent position within the locality”. That is consistent with the way the case was run by the parties.
The Justification for a Deck
(i) Visual Amenity and Urban Design
- [14]Each party engaged an architect to assess issues relating to visual amenity and building form. Mr Peabody (retained by the appellant) and Mr McGowan (retained by the respondent) produced a joint report. As is evident from that report, and from his subsequent testimony, Mr McGowan has some objection, in point of principle, to the intrusion of a private use into the public realm unless it is to the benefit of the public realm and some concern that approval of such an intrusion would set an undesirable precedent. He expressed his concerns in paragraphs 3.4 of the joint as follows:-
“3.4 Recognising that matters of land tenure and development rights are for others to contemplate, Mr McGowan notes his concerns (in terms of urban design and visual amenity) about permanent or long term appropriation of public space (particularly footpaths) by private entities, especially when the act returns little or no benefit to the experience of the public realm. Mr McGowan believes that the streets and footpaths are an important part of the city’s public realm and, being so prolific, often define the character and quality of the overall experience of the city. Permanent obstructions or appropriation of these spaces which do not enhance the public realm or, as in this instance, where they detrimentally affect the public realm (in terms of aesthetics, function, or safety), can be damaging to a city’s character and visual amenity and, in his view, are generally inappropriate. Further, he is concerned that the allowance of such an imposition might provide some justification for similar types of impositions to occur elsewhere, resulting in a collective degradation of the streetscape and public realm.”
In the course of the testimony, Mr McGowan said “I just think it’s poor form generally to have permanent structures in the footpath”.[5]
- [15]Whilst I respect Mr McGowan’s views, I have not approached this case on the basis of any philosophical view about the acceptability of private development intruding into a public space or on the basis of a fear creating an undesirable precedent. The fact that the proposal is in the footpath meant that a Resource Entitlement was required. That was obtained. The proper approach is to assess the application on its merits. The merits will, of course, need to be assessed in light of the applicable planning intent.
- [16]The existing building (ignoring the deck) has a rather stark appearance, no street activation and provides little positive influence upon the streetscape. As both architects acknowledged in their joint report, “the introduction of the terrace offers an opportunity to activate the Wyandra Street frontage. Activation is, in principle, considered a positive addition to the streetscape, especially in comparison to the outcome depicted in photos prior to construction of the terrace”.
- [17]There is, therefore, some merit, from visual amenity and urban design perspectives, in having a deck extension in this location to facilitate outdoor dining. Mr McGowan was not persuaded that anything needed to be constructed, but an appropriate deck could serve to advance the provisions of the more recent planning documents which, amongst other things, encourage development which provides an appropriate pedestrian environment and positively contributes to the streetscape. The existing deck is not, however, appropriate. Whilst providing some activation, it is bland and bulky in appearance. Both architects saw room for improvement.
(ii) Impact of Reduced Footpath Width
- [18]The existence of an elevated structure within the footpath obviously reduces the effective width of the footpath for other purposes, including for use by pedestrians. As was pointed out on behalf of the appellant however, the footpath width in Wyandra Street is relatively generous such that, even with the existing structure in place, there remains approximately 3m between the kerb and the face of the structure. Within that 3m width, there is currently a sealed section of approximately 1.6m in width.
- [19]The parties engaged traffic engineers (Mr Holland was engaged by the appellant and Mr Beard by the respondent) to assess the impact of the reduced footpath width. Mr Holland regards the present width as sufficient. Mr Beard recommends that any deck be narrower, in order to afford a greater width of unobstructed footpath. It quickly became apparent that there is sufficient space to accommodate both a deck (of some width) and an adequate width of footpath clear of the deck, but there remained a dispute about its appropriate dimension.
- [20]Both traffic engineers saw a difficulty with the current stairs at the northern end of the deck which may present some hazard for visually or mobility impaired persons walking up the grade in Wyandra Street.
(iii) Town Planning
- [21]Mr Brown saw the changing intent for this area, from providing for employment and business (prior to the 2011 amendments to City Plan 2000) to an emerging medium to high density urban community (under the more recent planning provisions) to be significant. In particular he saw a:
“clear planning intent that building and the built form more generally should make a positive contribution to the streetscape in which the pedestrian environment is both functional in terms of accessibility and pleasant attractive places so as to enhance usability of centres.”[6]
He did not see the present structure as consistent with that intent.
- [22]Mr Schombergk, on the other hand, considered that the extension of the use for outdoor eating was appropriate. In his view “the use provides visual interest, breaks up the otherwise blank façade of the commercial looking building, and provides casual surveillance of the street during opening hours.”[7] He acknowledged criticisms of the current appearance of the structure (presenting, as it does, a rather blank wall of about 2.7m high at its highest point), but considered those could be readily resolved by design and architectural treatments that could be required by the imposition of conditions.
- [23]In the joint town planning report, Mr Schombergk listed the following grounds which he considered sufficient to justify approval in the event of conflict with the planning scheme:
- The proposal offers an active street frontage for the abutting building;
- The proposal offers an addition to the streetscape that provides visual interest and relief/articulation from the building façade;
- The proposal provides for the “encouragement of outdoor lifestyle and engagement with the public realm” (PO50 of the Centre or Mixed Use Code 2014);
- The proposed development will “complement the role and appearance of the abutting development” (restaurant) (DEO 4 of S9.2 of Chapter 3);
- The proposal offers an outdoor dining opportunity for this part of the locality and the Centre, which would not otherwise be achievable, due to the topography in this immediate vicinity (the gradient of the footpath);
- The relevant resource authority (DERM, as it then was) has approved the use of the road reserve or the proposed purpose, being an extension of the existing approved restaurant;
- The proposal offers casual surveillance of this part of the street;
- The proposal provides a “sense of place” be defining this south-western end of Wyandra St, for the benefit of both motorists and pedestrians;
- Subject to conditions dealing with its physical appearance, the proposed structure will provide an attractive addition to the streetscape, in keeping with the intended character of the locality and the Centre in which it is located;
- The proposal maintains an adequate, unimpeded footpath width for pedestrians and cyclists;
- The proposal assists in achieving the desired planning outcomes sought for this locality in terms of streetscape, liveability and amenity.
- [24]Insofar as those are grounds, they relate to a deck of appropriate design, appearance and dimension.
(iv) Overview
- [25]By the end of the first day of the hearing it became evident that, whilst there is potential advantage in having an appropriate deck structure for outdoor dining in this location, the existing deck is not acceptable. It would at least need to be modified for visual presentation reasons and, depending upon the view ultimately taken of the other evidence, in its dimensions as well.
- [26]On the morning of the second day of the hearing, the parties asked that the further hearing be adjourned to permit them to explore the prospect of a resolution, on the basis of an agreement as to the form of an acceptable deck. Subsequent discussions over some months did not, however, lead to a resolution. The hearing resumed, but on the basis of revised and alternative proposals.
The Revised and Alternative Proposals
- [27]Upon the resumed hearing, the appellant relied on a modified proposal, which retained the same dimensions for the deck, but removed the stairs at the northern end, and included architectural treatments (including new surface finishes to the face of the structure and replacing the existing balustrade with visually permeable balustrade) to reduce visual bulk, scale and impact. It also proposed works in the street (including resurfacing the footpath, incorporating paved banding, installing traversable grates around the base of existing street trees and installing a new in-ground garden bed with landscaping in the area previous occupied by the northern stairs) for the benefit of the utility and amenity of the footpath.
- [28]The Council is opposed to the appellant’s revised proposal but is not opposed to an approval subject to conditions that the structure be in accordance with an alternative proposal shown on drawings created by Mr McGowan (the alternative proposal). Those plans also incorporate similar architectural treatments as are now proposed by the appellant, as well as works in the street (but not the proposed garden bed where the northern stairs presently are), but show a deck of smaller dimension. In particular, the alternative proposal features:
- (a)a deck which, at 11.5m in length, is approximately 4.1m shorter than the existing deck;
- (b)a deck which, at 1.8m in width, is some 445mm narrower than the existing deck;
- (c)a consequentially wider section of unobstructed footpath; and
- (d)assumed street tree grates which are wider than those shown in the revised proposal.
- [29]The appellant continued to contend for its amended proposal, with the Council’s proposal being its ‘fall-back’.[8] The key issue on the resumed hearing, related to matters of dimension.
- [30]As has been noted, the Court was left with two proposals, one from each of the parties. The proper approach, in those circumstances, is not for the Court to simply choose the one it regards as preferable. The appellant has the right to a fair assessment of its amended proposal. That should be approved if it is acceptable. That it might not be thought to be the best possible proposal does not disqualify it from approval. The Council’s proposal is only the “fall back” if it is acceptable, but the appellant’s revised proposal is not.
Dimensions
(i) Unobstructed Footpath Width
- [31]It has already been noted that the alternative proposal has a structure which is 1.8m in width. There is no basis to conclude that this dimension is insufficient for the purposes of an extension to the restaurant for the purposes of outdoor dining. Mr Schombrugk saw the wider deck of the revised proposal as providing greater utility but did not suggest the alternative proposal was impractical.[9] The appellant’s adoption of the alternative proposal as a fall back position suggests that it regards it as having utility.
- [32]The appellant’s proposal, at approximately 2.245m in width, reflects the width of the current structure. This more generous width could be considered appropriate if it leaves an appropriate unobstructed footpath width, clear of the structure. The focus of the debate on the width of the structure centred upon the appropriate remaining unobstructed footpath width.
- [33]The width of the footpath, clear of the appellant’s proposal, is some 3m, except where there are street trees. The appellant’s proposal assumes that 900mm grates will be used around the street trees, such that the unobstructed width at those points will be some 2.1m. It also points out that the grates could be traversable.
- [34]The alternative proposal would leave 3.5m of footpath, clear of the structure. The alternative assumes 1.2m grates around street planting, leaving an unobstructed width of 2.2m at those points. There is obviously only a small difference in the unobstructed width in each proposal, but the Council does not accept that only 900mm should be allowed for grates around street planting.
- [35]Wyandra Street does not currently have high pedestrian movement volumes, although that can reasonably be expected to change in the future, given the planning intent for the Commercial Road precinct of which the site forms part. The issue in relation to the footpath width is, however, not about the capacity to physically accommodate a high pedestrian volume. As Mr Beard acknowledged,[10] it would be possible for the width proposed by the appellant to accommodate a greater number of pedestrian movements than is likely to arise on any future development scenario. The issue is about the level of pedestrian amenity which it is appropriate to provide. A wider unobstructed footpath generally provides a higher level of pedestrian amenity, all other things being equal.
- [36]The primary source of information about the width which will afford an acceptable amenity in the circumstances is the relevant planning documents. Those documents descend to a degree of detailed planning about footpaths.
- [37]It has already been noted that the provisions of City Plan 2014 should be given significant weight. That planning scheme includes an Infrastructure Design Planning Scheme Policy, chapter 3 of which relates to road corridor design. Section 3.7.4.3.1 of that chapter relates to a typical layout for city streets. It provides that the principles in table 3.7.4.3.1A must be applied when designing a city street verge, as shown in figure 3.7.4.3.1a. For a city street minor (CS2), which is the designation applicable to Wyandra Street, table 3.7.4.3.1A sets out relevant “design requirements” including as follows:
“Verge with: 3.75m (4.25m for new roads)
Description: full width pavement
Unobstructed footpath width: 2.4m
Street trees: all tree centre lines are set 150mm from the nominal face of the curb and a minimum of 600mm from the edge of the pavement
Garden beds – minimum width : 1.2m
Tree grates: 1.6m x 1.2m
Furniture: all furniture is to be located outside the unobstructed pavement area”.
- [38]Those “design requirements” are consistent with those provided for in the Centres Detailed Design Manual, which was referenced in acceptable solutions to the Centre Design Code in City Plan 2000.[11] The 2.4m unobstructed width also sits with the desired clear width nominated in AUSTROADS guide to road design. I agree with Mr Beard’s approach, which looked to those “design requirements” to provide guidance. The footpath width requirements for industrial areas are comparatively much less.
- [39]Reference was made by the appellant and Mr Holland to the requirement for a minimum clear pedestrian zone of 2.4m in the CBD and only 2m in suburban locations in the Council’s Footpath Dining Permit Guide. That is however, not something to which I am prepared to attach significant weight. The appellant’s proposal is not for a permit for footpath dining. Rather, it is an application for development which would permanently alienate part of the footpath by the construction within it of an elevated ramp structure to serve as a permanent extension to the adjoining building. The “design requirements” in City Plan give relevant guidance as to the acceptability of what would be left (after accommodating the structure) for the purposes of a footpath.
- [40]Neither the revised nor the alternative proposals completely conform to the dimensions stated in the “design requirements” for footpaths in City Plan 2014. The alternative proposal, however, does not depart from them to the same extent as does the revised proposal.
- [41]It would be possible to have a deck structure within Wyandra Street which respected the “design requirements”, but that would leave a deck width of only some 1600mm. In adopting a width of 1800mm in the alternative proposal, the Council’s consultants were (fairly) conscious that a width of only 1600mm would have presented operational difficulties.
- [42]That a proposal involves some departure from the stated design requirements for a typical layout does not necessarily make it unacceptable. As Council’s position impliedly acknowledges, the desirability of providing a usable deck in this location justifies some departure from the design requirements for a typical layout. The Council’s position however, is that the design requirements should be compromised to the minimum extent necessary to achieve the desired activation with a deck of usable dimensions. The appellant’s revised proposal is, it contends, unacceptable because it departs from the design requirements to a greater extent than is necessary to achieve the desired activation. The appellant, on the other hand, contended that a larger deck was acceptable because the remaining footpath width is, it contends, adequate in the circumstances.
- [43]The design requirements provide relevant guidance. The appellant’s revised proposal departs from those design requirements to a greater extent, in terms of width, than is necessary in order to achieve the benefits which flow from having a deck in this location. Whilst a wider deck might provide for a somewhat greater seating capacity, the evidence did not persuade me that the extent of departure from the design requirements inherent in the revised proposal would achieve any relevant significant benefit.
- [44]I am conscious that, whilst there is a 445mm difference in width between the revised proposal and the alternative proposal, there is only a 100mm difference in the unobstructed width at the “pinch points” of the street tree plantings. Further, I am mindful of the evidence which was given about the number and location of the existing “pinch points” and the positioning and shape of existing street trees in proximity to the deck and indeed further down Wyandra Street. That does not, however, lead me to a conclusion that the revised proposal is acceptable. In that regard:
- The considerations are not limited to the amenity for people as they pass through the “pinch points”, but extends to pedestrian amenity more generally;
- It cannot be assumed that the existing street trees will necessarily remain, rather than being replaced with and/or augmented in the future with other plantings and/or street furniture. The design requirements effectively provide an area, clear of the unobstructed pavement area, for such improvements in the future. As counsel for the appellant acknowledged, that which is shown on the various plans in relation to street trees and the like is not part of proposal for which approval is sought; what transpires there in the future is a matter for the relevant authority; and
- The small difference in the unobstructed width is achieved (in the revised proposal) by assuming an area clear of the unobstructed footpath width which is narrower than the “design requirements” provide. In particular, it assumes use of tree grates of 900m, which is some 300mm narrower than those stipulated. Whilst it is certainly possible to find examples of narrower grates being used in the context of existing plantings, the size of tree grates used in the footpath is a matter for the Council. There would obviously be a number of potential considerations in the choice of grate size, including what is necessary for root protection and to prevent roots pushing up through the pavement such as to damage the footpath and/or create a trip hazard.[12] It should not be assumed that the Council will, in the future, fit grates of a smaller dimension than those provided for in the guidelines, nor should the Council be put in a position of having to choose smaller grates than might otherwise reasonably be provided in order to achieve an adequate unobstructed width of footpath whilst accommodating the existing width of the deck structure. Further, the reduced area clear of the unobstructed footpath width also provides a narrower area for future plantings, street furniture and the like.[13] There is insufficient justification to take up as much of the footpath width as is required by the revised proposal; and
- It was pointed out that grates are typically traversable to some extent, however, the design requirements, which are deserving of weight, refer to the unobstructed width clear of such grates. That is understandable. As was pointed out by Mr Beard and by Mr Brown, the extent to which such grates can be or are used is subject to a number of variables including the type of grate used and the extent to which the spread of tree foliage affects the ability, safety and likelihood of a pedestrian walking sufficiently close to the tree in order to be traversing the grate.[14]
- [45]The revised proposal would not result in an unusable, calamitous or unworkable footpath space, but that does not make it acceptable. As has been observed, the Court does not start with any assumption that the existing structure should continue in its current form and the appellant bears the onus in the appeal. The revised proposal represents, in my view, an undue intrusion into the footpath area, in terms of width. Some intrusion is justified, but it should not be to a greater extent than is reasonably necessary to achieve an appropriate level of activation. The width of the structure should be as proposed in the alternative proposal.
Length of the Structure
- [46]It has already been noted that, whilst the development application was made and proceeded with on the basis of the deck providing for an extension to the existing restaurant, the length of the deck is such as to also serve as a secondary entrance to another part of the adjoining building. That secondary entrance is to an area which once served as an office, but by the time the hearing commenced, was being fitted out for another restaurant. The applicant did not seek to amend its development application to seek approval for the deck to be used for anything other than as an extension to the existing restaurant. When it was pointed out that there would be operational difficulties in that part of the deck being actively used for restaurant tables and chairs on the one hand, and, on the other hand, kept clear for use as an access to other parts of the building,[15] counsel for the appellant informed the Court of his instructions that his client would accept a condition of approval that the access be closed and the deck used entirely for the existing restaurant.[16] The Council’s alternative proposal is not long enough to accommodate its use for the secondary access.
- [47]It was submitted, on behalf of the appellant, that there was some utility in permitting a greater length of deck so as not to close off the opportunity for it to be used to a greater extent in the future. The Court must, of course, access the application before it. That application is for a deck to serve as an extension to the existing restaurant. If the deck, as proposed for that purpose, is acceptable then it should be approved. That it extends further than the length of the internal part of the existing restaurant to which it is an extension is not a bar to approval. If the deck is unacceptable, by reason of its length, then it should be refused. The potential for a longer deck to perhaps have some utility for further (at this stage unidentified) outdoor dining in the future is not something to which I am prepared to place significant weight.
- [48]The length of the deck in the revised proposal was promoted on the basis of maximising activation. There is some potential merit in that argument. It is however, relevant to have regard, in this case, to the effects of topography and, in particular, to the sloping nature of this part of Wyandra Street.
- [49]The consequence of the topography is that the longer the deck, the higher it becomes relative to street level. Since the contentious part of the deck’s length is at the northern end, it is also that part of the structure which:
- (i)is highest;
- (ii)contributes most to the bulk of the structure, which supports its height; and
- (iii)separates, to a greater extent, activity on the deck from activity at street level.
Mr McGowan regarded the length of the revised proposal as being an issue insofar as it generates an increased mass at the northern end. He regarded the length of the revised proposal as compromising the public realm to a greater extent than could be justified. He regarded the Council’s alternative proposal as the maximum compromise that would be acceptable from a visual amenity perspective.
- [50]The difference in height at the northern end between the revised and alternative proposals is not dramatic, but the extra bulk is not insignificant. As Mr McGowan pointed out, the floor level of the deck of the revised proposal rises to about 1.7m, which puts it at about the height of a person. Diners on the deck would be above head height at that point. The alternative proposal however, at a maximum deck height of 1.39m, is at or below eye height, giving a more comfortable relationship with a passer-by.[17]
- [51]Mr Brown pointed out[18] that the topography militates against the significance of any further activation achieved by length of the revised proposal because that additional activation occurs in an area which was visually and physically most disconnected from the street.[19] Counsel for the appellant rightly accepted that as the deck extends north, there are “diminishing returns in terms of street activation”.[20]
- [52]Whilst the length of the revised proposal achieves a greater length of activation which, considered in isolation, could be seen to be of some benefit, the extent of that benefit is mitigated by the effects of the topography and must be balanced with the increased mass which results at the northern end of the structure. Whilst the impact of the additional mass is to be the subject of treatments designed to soften its effect, I am ultimately left short of being persuaded that it is acceptable in the circumstances.
Conclusion
- [53]For the reasons set out, the appellant has failed to satisfy me that the appeal should be upheld and that the revised proposal be approved. I am, however, satisfied that it is appropriate to grant an approval which is subject to conditions which require development to be in accordance with the alternative proposal.
Footnotes
[1] See WAW Developments Pty Ltd v Brisbane City Council [2011] QCA 47.
[2] Sustainable Planning Act s 493(1).
[3] Sustainable Planning Act 2009 s 495(2)(a).
[4] Eg. See City Plan 2000 (as amended) Chapter 3 s 9.2 paras 3 & 4, Newstead and Teneriffe Waterfront Neighbourhood Plan Development Principles 2.4, p 18, Centre Design Code s 3 – purpose, p 4, p 5, p 7, p 11, p 17, p 19, p 31, p 32; City Plan 2014, Newstead and Teneriffe Waterfront Neighbourhood Plan Code Purpose – 7.2.14.2.2(3)(c), (e), s 7.2.14.2.3.A, PO 16, Centre or Mixed Use Code s 9.3.3.2 – purpose – 2(e), (g), (j), (o), s 9.3.3.3 PO2, PO50.
[5] T3-72.
[6] Joint report para 6.1.12 appeal book page 72.
[7] Joint report para 6.2.8 page 75.
[8] T3-6, 4-41
[9] T3-29, 3-46.
[10] T3-59.
[11] See P 31 which requires all pedestrian spaces to be designed and constructed to reinforce the character of the Centre, and A 31, which refers to the location, design and provision of pedestrian facilities in and around buildings being in accordance with the Centre Detail Design Manual and promote usability.
[12] See eg T3-65-66.
[13] Beard T 3-56, 61.
[14] Brown T3-65,66; Beard T3-51, 54, 55, 59.
[15] T3-45.
[16] T3-29.
[17] T 3-68, 69.
[18] T 3-89. Note transcript originally showed the passages at T3-89 ll 8-10 and ll 14-18 as being “His Honour” but in fact were the witness Brown.
[19] T 3-89.
[20] T 4-29.