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BTS Properties (Qld) Pty Ltd v Brisbane City Council[2015] QPEC 47

BTS Properties (Qld) Pty Ltd v Brisbane City Council[2015] QPEC 47

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

BTS Properties (Qld) Pty Ltd v Brisbane City Council & Ors [2015] QPEC 47

PARTIES:

BTS PROPERTIES (QLD) PTY LTD

(appellant)

v

BRISBANE CITY COUNCIL

(respondent)

and

MICHAEL O'BRIEN

(first co-respondent by election)

and

CBD BRISBANE PTY LTD

(second co-respondent by election)

and

FRANK RAYMOND DORRSTEIN and MARGARET JOAN DORRSTEIN

(third co-respondent by election)

and

PETER BERNARD BYRNE

(fourth co-respondent by election)

and

MARGARET ELIZABETH DAIGA

(sixth co-respondent by election)

and

GARY GIBSON and MICHELLE GIBSON

(seventh co-respondent by election)

FILE NO/S:

4099/2014

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

1 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21, 24, 25, 26 and 28 August 2015

JUDGE:

R S Jones DCJ

ORDER:

  1. The appeal is dismissed.
  2. Any application concerning costs is to be made on or before 15 October 2015.

CATCHWORDS:

APPEAL – refusal of development application for material change of use for apartment building – City Plan 2000 – City Plan 2014 – where issues of height and bulk – where intrusion into waterway corridor – whether conflict with New Farm and Teneriffe Hill Local Plan – whether conflict with Waterway Code – whether sufficient grounds to warrant approval despite conflict

Sustainable Planning Act 2009, ss 314, 326, 493 and 495

Calvisi & Ors v Brisbane City Council & Ors (2009) QPELR 35

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors (2011) QPELR 406

Purcell Family v Gold Coast City Council & Ors (2004) QPELR 521

WAW Developments Pty Ltd v Brisbane City Council [2015] QPEC 038

COUNSEL:

Mr M Williamson for the appellant

Mr B Job for the respondent

Mr A Skoien for the first co-respondent by election

Mr M Batty for the third, fourth, sixth and seventh co‑respondents by election

SOLICITORS:

MacDonnells Law for the appellant

Brisbane City Legal Practice for the respondent

Fox Certare Partners for the first co-respondent by election

Mr S Keliher of Milne Legal for the second co-respondent by election

Thynne & Macartney for the third, fourth, sixth and seventh co‑respondents by election

  1. [1]
    This proceeding was concerned with an appeal against the Brisbane City Council’s (“the Council”) refusal of a development application for a material change of use that, if approved, would have facilitated the development of a six to seven-storey apartment building in New Farm. For the reasons set out below, the orders of the Court are:
  1. The appeal is dismissed.
  2. Any application concerning costs is to be made on or before 15 October 2015.

Background

  1. [2]
    The subject land is situated at 9 Griffith Street, New Farm and is more properly described as Lots 5 and 6 on Registered Plan 8732. The total area of those two lots is 962m2.  Broadly speaking, the lots run from Griffith Street to the Brisbane River in a trapezoidal shape in a generally south-westerly direction.  The subject site is currently occupied by a two-storey dwelling house which is to be demolished and, if approved, be replaced with the proposed apartment building.  The site already, consistent with a number of other sites along this section of the Brisbane River, has a pontoon extending into the river. 
  1. [3]
    The reference to the proposed development being a six to seven-storey development is as a consequence of the topography of the land. It slopes in a downward direction from Griffith Street to the banks of the river. Accordingly, and this is consistent with many of the buildings along this section of Griffith Street, the development would present one storey less from Griffith Street than when viewed from the river.
  1. [4]
    Consistent with its location in New Farm and its river frontage, the proposed development, as is the case with much of the surrounding development, is intended to be of a high standard. The northern boundary of the site adjoins a high-standard apartment building known as “Solitaire”. Solitaire presents as a six-storey building when viewed from certain locations in Griffith Street and a seven-storey building from the Brisbane River. However, when viewed from various other locations from Griffith Street and, no doubt, from various locations on the Brisbane River, it would appear to be a five-storey building from Griffith Street and a six-storey building from the river. That is so because the sixth/seventh storey is set back and occupies only a very small proportion of the top floor level. Immediately to the north of the Solitaire site are two two-storey houses of which the one facing the river has a heritage listing of some sort. Immediately to the south of the subject site is an existing two-storey house which has approval to be replaced by a modern, three-storey house.[1]  Immediately to the south of that is the four-storey apartment building “North Shore Villas”.[2] 

The study area

  1. [5]
    It was decided by the visual amenity, architectural and town planning experts that in assessing the impacts of the proposed development in the context of the relevant town planning documents (City Plan 2000 and City Plan 2014) it was appropriate to assess it primarily in the context of existing and proposed development along Griffith Street bounded by Merthyr Road to the north and Sydney Street to the south.
  1. [6]
    The eastern side of Griffith Street is developed with a mixture of detached dwellings and some apartment buildings predominantly two storeys in height. There is, however, a three-storey development across the road from the subject site.[3] 
  1. [7]
    On the western side of Griffith Street facing the Brisbane River, the range of styles, age, character, height and form of existing and proposed development were described by Mr Peabody, the architect called by the appellant, and Mr Schomburgk, the town planner called by the appellant, as being “eclectic”.[4] 
  1. [8]
    As already mentioned, fronting the river there are a number of substantial single unit dwellings either existing or proposed. However, there are also a significant number of apartment buildings up to nine storeys in height. In this regard the Glenfalloch development at 15 storeys located on the corner of Oxlade Drive and Sydney Street was excluded from the study area of the experts but nonetheless was referred to from time to time during the conduct of the appeal. The other apartment buildings ranged from four to nine storeys in height, Gemini Towers being the largest of the developments at nine storeys viewed from Griffith Street and 10 storeys from the river. As already mentioned, the Solitaire development, at its highest is six storeys viewed from Griffith Street and seven storeys from the river. The existing Water’s Edge development and the proposed (and approved) apartment building at 29-31 Griffith Street, which is to be constructed behind an existing heritage-listed house, contain a similar number of storeys.[5] 
  1. [9]
    The character of development fronting the river between Sydney Street and Merthyr Road was a critical factor. In this regard I agree with the evidence of Mr Schomburgk, who described the character of this area as being “substantially altered … by a range of manmade developments”.  The “developments” referred to by Mr Schomburgk included not only the various buildings but also associated retaining walls, swimming pools, pontoons and the absence of significant vegetation.  Also of significance was that, in addition to pontoons physically intruding into the river, the existing and proposed apartment buildings referred to above intrude to varying degrees into the designated 20 metre waterway corridor running, roughly, parallel to the riverbank.  More will be said about the extent and ramifications of those intrusions into the waterway corridor below.  In this regard, I also accept the submission made by Mr Williamson on behalf of the appellant to the effect that the riparian landscape was dominated by built form rather than any vegetation including riparian vegetation.[6] 

The proposal

  1. [10]
    As already mentioned, the proposed development will be six storeys when viewed from Griffith Street and seven from the river. Each floor is to be occupied by a single apartment. A basement car park provides for 14 car parks and landscaping is proposed to, in particular, soften the presentation of the building to the river. Naturally, each floor is designed to maximise river and city views.
  1. [11]
    The unit designs for levels 1 to 4 are, for all intents and purposes, identical.[7]  The ground floor is distinguishable in particular because it has a private terrace and pool on its western side and presents differently to Griffith Street in its treatment of balconies.[8]  Unlike levels 1 to 4, the fifth floor unit does not have balconies overlooking Griffith Street.[9]
  1. [12]
    The proposed building has an overall height of 23 metres measured at the Brisbane River elevation[10] and has a gross floor area of 1,635m2 measured under City Plan 2000.[11] 
  1. [13]
    The building could quite fairly be described as presenting as a high standard, modern, architecturally designed building. According to Mr Peabody the design incorporated a number of “attractive features”. These included:
  • an articulated floor plan offering varying spaces and setbacks between it and neighbouring buildings;[12]
  • a “stepped” floor plan layout fronting Griffith Street offering articulation in the built form and dividing the building bulk into three separate elements along the streetscape;[13]
  • the use of “lightweight cladding” and stepping in of the building envelope and deletion of balconies at the upper level which, according to Mr Peabody, reduced the visual impact of the building as it presented to Griffith Street;
  • the use of open balcony treatment along the Griffith Street elevation with glass and open metal balustrades which, also according to Mr Peabody, reduced the bulk of the building while still maintaining visual connectivity with the street.[14]
  1. [14]
    In addition to the structural features of the proposal, landscaping was to be provided at the ground level in accordance with a concept plan prepared by Mr Chenoweth, the visual amenity expert relied on by the appellant.[15]  The purpose of that plan was to identify where additional areas of planting could be accommodated on the site including along its river frontage, its Griffith Street frontage and its eastern and western boundaries.[16]
  1. [15]
    While there was some dispute about the adequacy of the landscaping intended, a matter which will be dealt with in more detail below, many aspects of the proposal as described above were uncontroversial.

The issues in dispute

  1. [16]
    The real contest centred around the proposal’s presentation to Griffith Street by reference to height, its height and bulk when compared to adjoining buildings and its presentation to the Brisbane River by reference not only to its height but also its bulk and intrusion into the 20m waterway corridor. The Council and the co-respondents by election all contend that the appeal ought be dismissed and the Council’s decision confirmed. The Council’s grounds for refusing the application are set out in its decision notice dated 16 October 2014. The first co‑respondent by election owns the land immediately to the south of the subject site upon which it is intended to develop a modern, three-storey house.  The third, fourth, sixth and seventh co-respondents by election are owners and occupiers of units located in the adjoining Solitaire building, and the second co‑respondent by election was the developer of Solitaire.
  1. [17]
    The residents of Solitaire also raised issues concerning impact on views, light and air and interruption of breezes. There was no evidence that any of their concerns in that regard were warranted. However, it is also clear from the submissions of those co-respondents by election that they were also concerned with the broader issues of height, bulk and scale. Their concerns were, in that regard, well‑grounded. 
  1. [18]
    The development application is impact assessable under s 314 of the Sustainable Planning Act 2009 (“SPA”).  That section required the application to be assessed against the Brisbane City Plan 2000 (“CP2000”), being the planning scheme in force at the time of the lodgement of the development application.  The Council’s decision notice dated 16 October 2014 was given after the introduction of City Plan 2014 (“CP2014”), which occurred in June 2014.  Both the CP2000 and the CP2014 needed to be considered in determining the outcome of this appeal,[17] although as Mr Williamson, counsel for the appellant, correctly contended, his clients were “entitled” to have the application assessed under the terms of the CP2000.  Under that planning scheme the subject land:
  1. (i)
    is located in the Medium Density Area, covered by the Residential Design – Medium Density Code;
  1. (ii)
    is located within the area of the New Farm and Teneriffe Hill Local Plan, covered by the New Farm and Teneriffe Hill Local Plan Code; and
  1. (iii)
    is partly within the Brisbane River Waterway Corridor, covered by:
  • the Waterway Code 2000; and
  • the Brisbane River Corridor Planning Scheme Policy 2000.
  1. [19]
    Under the CP2014:
  1. (i)
    the subject land is located in the Medium Density Residential Zone, covered by the Medium Density Residential Zone Code 2014;
  1. (ii)
    the subject land is located within the area of the New Farm and Teneriffe Hill District Neighbourhood Plan 2014, covered by the New Farm and Teneriffe Hill District Neighbourhood Plan Code 2014;
  1. (iii)
    the subject land is still partly within the Brisbane River Corridor covered by the Waterway Corridors Overlay Code 2014; and
  1. (iv)
    the proposal is identified as a multiple dwelling and covered by the Multiple Dwelling Code 2014.
  1. [20]
    The central issues (or opposition) concerning the proposed development were neatly particularised in the written submissions of Mr Job, counsel for the Council:[18]

“1. The fundamental difficulty faced by the appellant’s proposal is the combination of its excessive height, length and bulk, and the manner in which it unashamedly intrudes into the riparian setback sought by the planning scheme.

  1. That is, the appellant has failed to establish not only that the proposal is of an appropriate height, bulk and scale, but also that its built form is acceptably positioned on the land.
  2. Those factors lead to the conclusion that the proposal conflicts with the following provisions of CP2000:
  1. (a)
     the Local Plan – s 5.4, P1 and A1.1, and P2 and A2.1, particularly in the context of s 2.2.3 Desired Outcome 1 and its supporting Principles 1 to 4; and
  1. (b)
     the Waterway Code 2000 – s 4.6, P1 and A1.1 and P2 and A2.2, particularly in the context of the Purpose of the Code and the River Policy.
  1. It also conflicts with the following provisions of CP2014:
  1. (a)
     the MDR Zone Code, ss 6.2.1.3(2)(b) and 6.2.1.3(5)(a), (b), (c) and (d);
  1. (b)
     the Neighbourhood Plan Code ss 7.2.14.1.2(3)(f) and (m), and PO1 and AO1; PO7 and AO7; and PO8 and AO8;
  1. (c)
     the Waterway Overlay Code 2014, ss 8.2.26.2(2)(d) and (e) and PO16 and AO16; and
  1. (d)
     the Multiple Dwelling Code, ss 9.3.14.2(2)(e), (h), (i) and (s), and PO5 and AO5 and PO6 and AO6.1.
  1. In particular, despite the appellant’s assertions, the proposal does not comply with the Local Plan.  Its height and bulk and protruding location on the site is such that it does not maintain a visual relationship with buildings in the vicinity.  Furthermore, as a consequence of its considerable plot ratio and the manner in which it is designed and located it is not consistent with the medium density nature of the locality.
  2. The conflict with the Waterway Code 2000 is obvious.  The proposal does not respect the riparian setback, and even the appellant’s experts agree that it is not of a similar height and bulk to its immediate neighbours.  Given the appellant’s apparent focus upon the Waterway Overlay Code 2014 it seems that the conflict with the former is conceded.
  3. The conflicts which exist are not overcome by the ‘grounds’ advanced by the appellant. Many are not grounds at all. Further, assertions that development of this form ought to be expected; that it has an appropriate streetscape or riverscape; or an absence of tangible amenity impacts, hardly justify approval…”
  1. [21]
    Pursuant to s 326 of the SPA, the development application must be refused if:
  1. (a)
    there is conflict between the development application and City Plan 2000; and
  1. (b)
    sufficient grounds to justify approval of the development application (despite the conflict) do not exist.
  1. [22]
    Pursuant to ss 493 and 495 of the SPA:
  1. (a)
    the appeal is by way of hearing anew;
  1. (b)
    the court may give such weight to any new laws and policies that the court considers appropriate; and
  1. (c)
    it is for the appellant to establish that the appeal ought be allowed.

The arguments and discussion

City Plan 2000 (CP2000)

  1. [23]
    It is uncontroversial that for impact assessment, development must be assessed against the relevant development principles and precinct intent of the New Farm and Teneriffe Hill Local Plan in CP2000 (“Local Plan 2000”), the Purpose, Performance Criteria and Acceptable Solutions of the Local Plan Code 2000, and any other relevant codes.
  1. [24]
    The subject land is contained within the Medium Density Living Precinct of the Local Plan 2000. Section 3.3 of that Plan identifies the intent for this precinct in the following terms (in part):[19]

“It is intended that this precinct be used predominantly for medium density residential use, taking advantage of the high levels of accessibility and visual amenity that characterise the land in this area. Where possible, development proposals should provide visual and physical links to the river.”

The statement of intent for the precinct relevantly provides:[20]

“… Non–residential uses that provide local community services are encouraged where the proposal is compatible with the surrounding residential neighbourhood. New non–residential uses should be incorporated within a mixed use development where the predominant focus is on the residential component. …”

  1. [25]
    It was submitted on behalf of the appellant that these passages recognise that while the intended use for the precinct will be “predominantly” for medium density residential uses, other uses are contemplated. I agree.
  1. [26]
    The Local Plan 2000, unsurprisingly given its focus of attention, contains specific additional local planning requirements. Where those requirements conflict with the requirements of CP2000, they prevail. The introduction to the Local Plan Code 2000 relevantly provides:[21]

“This Code provides additional and/or alternative Performance Criteria and Acceptable Solutions to the Codes in Chapter 5. Where an Acceptable Solution or the corresponding Performance Criterion in this Code directly varies from an Acceptable Solution or Performance Criterion in a generic Code in Chapter 5, the Acceptable Solution and Performance Criterion in this Code take precedence. All remaining Acceptable Solutions and Performance Criteria from applicable or relevant generic Codes in Chapter 5 will continue to apply.”

  1. [27]
    In the context of this appeal, Performance Criterion P1 and Acceptable Solution A1.1 and Performance Criterion P2 and Acceptable Solution A2.1 within section 5.4 of the Local Plan Code 2000 are of particular significance. They provide as follows:

Performance CriteriaAcceptable Solutions

Building height

P1 New buildings must maintain views to and from the River and other landmarks identified on Map A—New Farm and Teneriffe Hill, while maintaining a visual relationship with other buildings in the vicinity

 

A1.1 Building height is no more than 5 storeys, and 15m above ground level to the underside of the ceiling of any habitable room

 

 

Gross floor area

P2  Building size and bulk must be consistent with the medium density nature of the locality and retain an appropriate residential scale and relationship with other precincts in the plan area

A2.1  Gross floor area does not exceed the area of the site

  1. [28]
    It was submitted on behalf of the appellant that P1 was “solely” concerned with the issue of the height of any given building. In that regard, reliance was placed on the specific use of the word “height” in the Performance Criterion and in Acceptable Solution A1.1. In this context, Mr Williamson placed emphasis on the following observations made by his Honour Judge Robin QC in Calvisi & Ors v Brisbane City Council & Ors[22]:

“… As much time was devoted in the appeal to the other requirement of P1 of ‘maintaining a visual relationship with other buildings in the vicinity’; in context, this relates to building height, rather than other kinds of relationship, such as architectural style. Some interpretation of ‘maintaining a visual relationship’ is required. A new building will necessarily destroy the pre-existing visual relationship and replace it with a new one. If buildings can be looked at together, they necessarily have a visual relationship. P1 must be intended to require more than the creation of some visual relationship. The focus, for the moment, is on height. I take what is required to be maintained is a visual relationship that is pleasing, sympathetic, supportive, harmonious or complementary. There must be room for notions of reasonableness which, among other things, would indicate to my mind that a range of outcomes is usually likely to be acceptable, because reasonable minds may differ; however, a bare rule of reasonableness not qualified any further is not likely to be helpful.”  (emphasis added)

  1. [29]
    As to the first limb of P1, Mr Williamson submitted to the effect that in respect of views, while there may be some negative impact on the views from certain windows and balconies of Gemini Towers and the top level of the proposed residential dwelling immediately to the south of the subject, those impacts were so minimal as to be incapable of creating a conflict. On behalf of the Council, Mr Job submitted, as did counsel for the other opponents, that ultimately the proposed development was in conflict with the first limb of P1. In respect of this issue I am inclined to agree with Mr Williamson. Certain upstream views from some windows and balconies of Gemini Towers and the top floor of the proposed residential dwelling will be interfered with, particularly having regard to views of the Story Bridge.[23]  However, from other vantage points, the occupants of those buildings will maintain uninterrupted views of the river, the CBD and the Story Bridge.  Their magnificent views directly over the river and downstream will of course not be affected.  The impact may be more than Mr Williamson seemed to suggest but, on balance, I am satisfied the first limb of P1 is not conflicted.  While not conceding the point, Mr Job submitted that it was “however, unnecessary to dwell upon the magnitude of that conflict as the second limb is clearly not satisfied”.[24] 
  1. [30]
    Mr Williamson submitted that to demonstrate compliance with the second limb or component of Performance Criterion P1 the appellant only had to establish that the proposal, in terms of building height alone, will maintain a visual relationship that is pleasing, sympathetic, supportive, harmonious or complementary with other buildings in the vicinity.[25]
  1. [31]
    On behalf of the Council, Mr Job submitted that P1 was not limited to the question of height only. In his written submissions, he submitted as follows:[26]

“P1 is not concerned only with height.  In fact the heading can be seen to relate to the Acceptable Solutions where ‘height’ is mentioned.  P1 may be contrasted with P2 which refers to what the ‘building size and bulk’ is to achieve.  Also P1 of s 5.2 and P1 of s 5.3, for other precincts specifically refer to ‘height’.  The omission of the term in this instance can only be interpreted as deliberate.

Further, where the same provision was considered in Calvisi, although initially the Court considered the provision in the context of height, it went on to state that the ‘height issue should not be considered in isolation from the P2 issue of gross floor area in this context’ and then observed that a witness was correct in the approach of ‘considering all dimensions of the proposal when he assessed the visual relationship to be produced’…

In this case, the combination of the building’s considerable height and bulk, and the extent of encroachment into the waterway corridor, is such that it does not maintain a visual relationship that is pleasing, sympathetic, supportive, harmonious or complementary with other buildings in the vicinity.

There is nothing in the planning principles of the Local Plan that point to a different conclusion.  They do not support the scale or location within the waterway corridor of the proposal.”

  1. [32]
    Mr Skoien, counsel for the first co-respondent by election, after referring to a passage of the judgment in Calvisi, said:[27]

“So his Honour was saying that P1 – in my respectful submission, was saying that P1 dealing with height, (if) you don’t meet the acceptable solution regarding height, you turn to the performance criteria in trying to deal with this question of visual relationship.  You don’t just look at the extra height.  You also look to see what are the other parameters of the building that are incorporated within that extra height.  And with the greatest respect, that’s an immensely sensible approach to the construction of that provision. …”

  1. [33]
    As far as I am able to ascertain, Mr Batty, counsel for the third, fourth, sixth and seventh co-respondents by election, did not directly address this issue nor did Mr Keliher, solicitor for the second co-respondent by election.  They did however adopt Mr Job’s submissions overall.
  1. [34]
    On balance, I am inclined to consider that Mr Williamson’s view of the operation of P1 is probably correct. That is, if the height of the building under consideration was no more than five storeys and no more than 15 metres above ground level to the underside of the ceiling of any habitable room, then P1 would be likely satisfied. At the end of the day though, that is essentially a hollow victory. Clearly in considering P2 and A2.1, the height of a building would be a relevant consideration in assessing “building size and bulk”. And as Judge Robin QC observed in Calvisi the height issue “should not be considered in isolation from the P2 issue”.[28]
  1. [35]
    Returning then to P1 and A1.1, the Acceptable Solution is clearly not met and this was acknowledged by Mr Williamson and an alternative solution which complied with the overarching Performance Criterion was advanced.[29] 
  1. [36]
    Without intending to in any way understate the appellant’s case, as I understand it the “alternative” acceptable solution was the development of a modern, attractive apartment complex whose height, when compared to the height of existing and proposed development along the stretch of the river between Merthyr Road and Sydney Street, was not anomalous. To put it another way, it maintained “a visual relationship with other buildings in the vicinity”.  During oral submissions the following exchange occurred:[30]

“MR WILLIAMSON:  But, your Honour in terms of building heights, it is with great respect rather disingenuous of the Council to submit – and, indeed the first co-respondents to submit – that the proposal will, presenting to Griffith Street, fail to have an appropriate visual relationship with Solitaire.  Solitaire’s six storeys.  The proposal is six storeys.  It doesn’t have the same setback at its top, but to describe that as a visual relationship which is not harmonious, not consistent, it beggars belief.  And perhaps that might explain why Mr McGowan …

HIS HONOUR:  I don’t know if it beggars belief, Mr Williamson.  As his Honour Judge Robin observed in that passage, these are things that reasonable minds might differ upon.

MR WILLIAMSON:  Well, but in this case, what Mr McGowan agreed to is from Griffith Street it was not unacceptable.  He just thought there was a better outcome that could be achieved.  So that’s why I say it’s disingenuous for the Council to come along and say it’s unacceptable from that elevation, because it’s not.  They want a different outcome.  And Exhibit 3, the photo montages in Mr Chenoweth’s report, do not support a bald submission – as was made by my learned friend, Mr Skoien, this morning – that the proposal does not have an appropriate visual relationship in height terms in the street.

HIS HONOUR:  Now what’s that you’re holding up?

MR WILLIAMSON:  That’s Exhibit 3, page – it’s the Chenoweth montages, page 24.

HIS HONOUR:  Yes.

MR WILLIAMSON:  It’s difficult to see how that is not an appropriate visual relationship between Solitaire and the subject proposal.  It’s – if there is a storey difference in impression the response to that is, ‘Well, so what? What’s the impact?’  There is no impact.  It’s not unacceptable, but Mr McGowan thought it was a better design …”

  1. [37]
    I accept the appellant’s position regarding height. Various height measurements were referred to in the written and oral submissions made on behalf of all the parties. However, I do not consider it necessary to dwell on those numbers. When viewed from both Griffith Street and the river, the proposed development sits in a precinct containing a number of dwellings but which is otherwise dominated by apartment buildings ranging from three to four storeys through to six to seven storeys. It may, to any reasonable observer, exceed the height of the adjoining Solitaire building by up to one storey (23m for the proposal and 19.8m for Solitaire) but that same observer would note that it was not as tall as Gemini Towers. Overall, while taller than all but Gemini Towers it would maintain a visual relationship with other buildings in the “vicinity”.[31]  A different conclusion would in all probability be reached if the subject proposal had to maintain such a relationship with “adjoining buildings”, but that is not the case.
  1. [38]
    Before turning to Performance Criterion P2 in detail, it is convenient here to dispose of the issues of “shadowing” and landscaping. Exhibit 23 reveals that the proposal would have a negative impact on the proposed three-storey dwelling immediately to the south. However, the impact is not significant in the scheme of things. In this context I do not consider that the negative impacts on views and shadowing, either alone or in concert, would constitute conflict with the provisions of the Local Plan 2000 nor any relevant part of CP2000. Also, by reference to Mr Chenoweth’s montage, while the proposed landscaping in front of the proposed development could hardly be described as being plentiful or lush, while less than that shown in the vicinity of Gemini Towers, is more than exists in front of the Solitaire building and is not incompatible with the degree of landscaping in front of other buildings.[32] 
  1. [39]
    As to the issue of size and bulk, the evidence leads me to the conclusion that in this stretch of Griffith Street to the river there are two buildings of particular significance. Towards the southern end it is Gemini Towers, and to the north the two-storey dwellings and, in particular, the heritage-listed dwelling immediately to the north of Solitaire.[33]  It is clear that the heritage-listed dwelling influenced the design of the Solitaire building and, in particular, the setback of the upper floors above the second level.  In turn, the design of Solitaire has had a significant influence on the Council’s response to the proposed development.[34]
  1. [40]
    Mr Williamson readily conceded that the proposal did not satisfy A2.1. In his written submissions, Mr Williamson contended as follows:[35]

“Acceptable Solution A2.1 provides that P2 will be satisfied where the gross floor area of a proposal does not exceed the area of the site.  The proposal has a gross floor area which is 1.7 times the site area and does not meet the Acceptable Solution.  Again, what is proposed is an alternative solution.  The alternative solution must be of a size and bulk consistent with the medium density nature of the locality to comply with the overarching Performance Criterion. …

To comply with Performance Criterion P2, it is submitted that the bulk and size of the proposed building is to be consistent with the character of the locality, which is described as being predominantly medium density in nature – there are no non-residential uses in this part of the precinct.  The focus is therefore upon the residential nature of the locality.

The medium density of the locality here includes buildings of one to nine storeys with a gross floor area in excess of their site area.”  (emphasis added)

  1. [41]
    During his oral submissions, the following exchange took place:[36]

“MR WILLIAMSON:  And in the Griffith Street precinct, it is a medium density locality.  It is a medium density precinct as described by Mr Kay and as described by Mr Schomburgk and, indeed Mr Chenoweth.  And the consistency with the medium density nature of the locality is, once again, consistency.  It’s not replication.  It’s not the same.  It’s about appropriate relationship.  And in effect what is said against me is that, ‘ha-ha you grab Gemini.  That’s the biggest building.  That’s a building in the street.  You think that’s your anchor.  You can point to that and that gets you home.’  And in effect that’s what my learned friend Mr Keliher kindly says, that well, my client thinks they can do whatever they want.  But that’s not what the evidence reveals.  What the evidence reveals is that the proposal does not emulate, does not replicate … Gemini in size, bulk, scale and design.  It will be appreciably smaller. 

HIS HONOUR:  Well, so for this perhaps – well I shouldn’t say ‘for this’.  But one point of distinction between your client’s proposal and Solitaire et al, which places it closer to Gemini than anything else, is the plot ratio.

MR WILLIAMSON:  But it is still significantly less than – it is between, in the middle of – what I’ll call the middle of the range.

HIS HONOUR:  But I think what you say, then, to the evidence of Messrs Brown and Kay, in particular on this point that – well, look, Gemini – we’ve got to live with it.  Sure, it forms part of the streetscape because it’s there, and we’ve got live with it.  But it would be wrong to, if you like, judge what’s acceptable in 2015 by what was approved then, i.e., we shouldn’t be working backwards.  If so, I mean, Gemini’s 2.5.  That’s not the starting point.  The starting point is what should be acceptable now. 

MR WILLIAMSON:  Your Honour, can I say that argument is disposed of by reference to two cases …”  (emphasis added)

  1. [42]
    The first of the cases to which Mr Williamson referred was the decision of Judge Quirk in Purcell Family v Gold Coast City Council & Ors[37]:

“The point was made that some of this development was approved prior to planning controls relevant to the determination of this appeal. I do not regard that as being a matter of telling importance. The development that lends character to this area is there on the ground and there is every indication that it will remain there for some considerable time. To suggest that its influence upon the area’s visual amenity should be disregarded because it was approved prior to the planning controls we are considering here is, as I see it, a little unrealistic. To do so would attribute to the area a character which it simply does not have.”

The second case upon which Mr Williamson relied in this regard was K Page Main Beach Pty Ltd v Gold Coast City Council & Ors[38] where Judge Rackemann said:

“It is the predominant residential character of the surrounding area which must be assessed. There is nothing in the planning scheme which warrants applying the test in PC1 without paying due regard to the existing buildings which contribute to that character. …”

  1. [43]
    Relying on those cases, Mr Williamson submitted that there was nothing contained in either Local Plan 2000 or the Waterway Corridor Planning documents of 2000 which warranted applying a test that did not pay due regard to all of the existing buildings and Gemini Towers, all of which contributed to the medium density nature of the locality.[39]
  1. [44]
    With all due respect to Mr Williamson, at no stage did I understand any of the opponents to the proposed development, to contend that Gemini Towers had to be excluded when considering the overall character (including visual amenity) of the relevant vicinity. The general thrust of the respondent’s and co-respondent’s by election’s submission was to the effect that when viewed objectively, even having regard to the existence of Gemini Towers, the proposal was manifestly inconsistent with the medium density nature of the locality and did not retain an appropriate residential scale and relationship with other precincts in the plan area.
  1. [45]
    I immediately accept that the proposed development in no way attempts to replicate Gemini Towers. As I have already said, what is envisaged is a high quality, modern, architecturally designed building. It will look nothing like Gemini Towers. That said, I am unable to accept that in respect of size and bulk the proposed development falls in the “middle of the range”.[40]  According to Mr Williamson it was “common ground” that the plot ratios of existing buildings on the western side of Griffith Street range from below 1:1 up to and including about 2.3:1 for Gemini Towers.[41]  That is no doubt correct in absolute terms but it fails to take account of the fact that following the introduction of CP2000, which post-dated Gemini Towers by many years, the approved developments of Solitaire, Waters Edge and the proposed development for 29-31 Griffith Street[42] have plot ratios varying from about 1.05 to 1.2 times the site area.  The nearest building being Solitaire having a plot ratio of just over 1:1.  What is proposed in terms of plot ratio is in the range of up to 50 – 60% more than for those other more recent medium density developments referred to.  Not surprisingly then, Mr Schomburgk in cross-examination had to acknowledge that the only other development in this part of Griffith Street to have a plot ratio in excess of 1.5 times the site area was Gemini Towers. 
  1. [46]
    Finally on this topic, I do not consider the evidence about development at or about the corner of Moray Street and Baker Street[43] to be of any probative value.  It is not only well removed from the Griffith Street study area but is also situated in a different locality.  That is particularly so given the influence of the Brisbane River.
  1. [47]
    On balance the evidence satisfies me that the proposal’s building size and bulk is not consistent with the medium density nature of the locality and is in conflict with P2.

Waterway Code 2000

  1. [48]
    Turning then to the Waterway Code 2000, it was really only Performance Criterion P1 that was in issue.
  1. [49]
    Performance Criterion P1 and Acceptable Solutions A1.1 and A1.2 provide:

Performance CriteriaAcceptable Solutions

P1 For sites within the Brisbane River Corridor, and fronting the Brisbane River, the attractive appearance of the Brisbane River and its banks, when viewed from the Brisbane River, from development near the Brisbane River, or from other public vantage points, must be maintained and enhanced

Materials used for buildings and structures must complement surrounding buildings, the visual character of the area and the character of the precinct

In Precinct 1, buildings must not locate within the corridor and must be minimised to maintain landscape values

In Precincts 2, 3, 4 and 5 setbacks must be no less than the setbacks of buildings sharing a common boundary. In these circumstances buildings must be of a similar height and bulk to these adjoining buildings, substantially shielded from view of the Brisbane River by vegetation and ancillary structures between the main building and the Brisbane River must be restricted to minimise impacts on the Brisbane River’s landscape values …

(emphasis added)

A1.1 Buildings … are not located:

• within 30m horizontal distance of high water mark in Precinct 1

OR

•  within 20m horizontal distance of high water mark in Precincts 2, 3, 4 or 5

A1.2 Reclamation of land does not occur in Precincts 1, 2, 3 or 4, or on residential land in Precinct 5

 (emphasis added)

  1. [50]
    A1.1 is clearly not satisfied. The proposed development has a setback of approximately 16.3m to the Brisbane River when measured parallel to its side boundary, however, that setback reduces to about 12.5m when measured perpendicular to the high water mark, or in other terms, a maximum encroachment of about 7.5m into the 20m corridor prescribed under A1.1.[44]  However, as discussed below, the proposal is not alone in encroaching into the 20m corridor.  According to Mr Williamson, Performance Criterion P1 has three distinct elements:[45]
  1. (i)
    the need to consider the attractive appearance of the Brisbane River and its banks when viewed from the Brisbane River etc.;
  1. (ii)
    consideration needs to be given to the building materials intended to be used; and
  1. (iii)
    consideration needs to be given to the setbacks of buildings sharing a common boundary with the proposal and, in those circumstances, consideration also needs to be given to the height and bulk of those adjoining buildings and whether the proposal will be substantially shielded from view of the Brisbane River by vegetation.
  1. [51]
    The proposed development satisfies the second of those elements. And, although it will not be substantially shielded from view of the Brisbane River by vegetation, as already discussed, in its setting it does not offend that requirement. Reclamation is not in issue. The difficulty for the proposal are the remaining considerations.
  1. [52]
    As already mentioned, a number of existing and proposed apartment developments in the study area encroach into the 20m waterway corridor. Gemini Towers encroaches by between approximately 2.9m to 6m and presents a ten storey frontage to the river. The Waters Edge development has a maximum encroachment of approximately 3.25m and presents seven storeys to the river. The approval granted for development at 29-31 Griffith Street has a maximum encroachment of approximately 4.95m to the edge of the balcony and will present as a six to seven storey building to the river. That these intrusions exist are important in considering the proposed development in its urban environment. That said, P1 of the Waterway Code 2000 places particular focus on the setbacks of those buildings sharing a common boundary. Solitaire adjoins the subject site to the north and encroaches into the waterway corridor by between approximately 4.8m to 10.5m however, it is only the basement/car park level and the two residential levels above that encroach. The remaining four levels have been set back to align with the 20m waterway corridor setback.
  1. [53]
    Adjoining its southern boundary is the existing two storey dwelling which is intended to be demolished and replaced with an approved three storey dwelling. The setback of that dwelling at its outermost point intrudes by approximately 9.5m into the waterway corridor. The enclosed component of the approved house is set either just outside or at the 20m waterway corridor setback.[46]  At the third level there will be an open terrace which will also intrude into the 20m waterway corridor for a distance of about 6.5m.[47] 
  1. [54]
    In this context it was submitted on behalf of the appellant:[48]

“Performance Criterion P1, in the absence of clear words, should be construed to require the appellant to identify the closest point for buildings sharing a common boundary to the high water mark.

In this case, the setbacks of buildings sharing a common boundary with the proposal vary.  The building to the north is located closer to the river then the subject proposal (Solitaire).  The development approved on the land to the south is located slightly further away from the subject proposal by up to half a metre.  This creates a variable setback line across the proposal.

Adopting a common sense approach, the building meets the average setback line for both adjoining buildings.  This has the consequence that a significant part of the building is setback further than the building sharing a common boundary to the north.  Conversely, a small part of the building has a shorter setback than the building sharing a common boundary to the south…

In summary, it is submitted that the proposal complies with Performance Criteria P1 construed in a common sense and practical way.  In the event there is conflict, it is limited to the fact that the proposal has a setback which is less than the building to the south at its first two levels (of a small distance).  That is a conflict which is technical given the limited nature of the noncompliance from the river – less than 0.5m.”

  1. [55]
    I agree that P1 should be construed in a common sense and practical way, however, I doubt that the construction contended for by Mr Williamson is correct. That said, in circumstances where the encroachment of the proposed development is not manifestly inconsistent with the encroachments on either side I do not consider the “setback” issue alone to be fatal to the proposed development. However, it could not reasonably be contended in my view that the proposed development is of a similar height and bulk to the adjoining buildings. At a height of approximately 23m the proposed development is almost twice as high as the proposed development to the south which, as I understand the evidence, is about 12m at its highest point. The proposed development will not only dominate the proposed dwelling by reference to height but also by reference to bulk and scale. The proposed dwelling has a plot ratio of 0.91:1 and a height of three storeys[49] while the proposed development has a plot ratio of 1.7:1 and is up to seven storeys.
  1. [56]
    When compared to Solitaire, which is approximately 19.8m high facing the river, the proposed development is approximately 23m. As I found earlier when addressing performance criterion P1 under the Local Plan I did not consider this difference in height, when viewed in the overall context of the study area, to be in conflict with that plan. However, even when compared to Solitaire it is not of a similar bulk. That is so because the top four storeys of Solitaire have been setback to align with the 20m waterway corridor. The consequence of that is that Solitaire has a plot ratio of just in excess of 1:1 whereas the proposed development has a plot ratio of 1.7:1. In such circumstances it was hardly surprising that Mr Schomburgk accepted that the proposal was not of a similar height or bulk when compared to the existing or approved dwelling to the south. Mr Schomburgk also agreed that the plot ratio measurement was an appropriate indicator of bulk and, accordingly, that the plot ratio of the proposal was not similar to that of Solitaire.[50] 
  1. [57]
    The evidence is that the proposed development is not of a similar height and bulk to the buildings immediately to its north and south.
  1. [58]
    Of course when Solitare was approved it was not of a similar height or bulk to the existing dwellings to its immediate north and south and, accordingly was in conflict with the third element of P1 as identified by Mr Williamson.
  1. [59]
    However, the evidence about this issue is that with its setback of the upper storeys above the second floor, Solitaire has been “tailored” to accommodate the heritage-listed house to the north according to Mr Brown.[51]  According to Mr Kay the heritage-listed house provided a “benchmark” for Solitare.[52]  According to Mr Chenoweth the design of Solitare was deliberate to provide “greater compatibility with adjoining riverside houses.”[53]
  1. [60]
    In these circumstances while Solitare is clearly at odds with its then neighbours in respect of height and bulk, its more sympathetic design features concerning adjoining buildings and the waterway corridor distinguishes it from the proposed development in a very significant way. It does not provide a “precedent” in support of what is proposed.
  1. [61]
    The overall bulk of the proposed development is also such that it fails to satisfy the requirement that “the attractive appearance of the Brisbane River and its banks when viewed from the Brisbane River, from development near the Brisbane River or from other public vantage points must be maintained and enhanced.”
  1. [62]
    In this regard it is not the actual encroachment into the waterway corridor that is really in issue, it is the way the building will present to the river. Both Mr McGowan and Mr Mack, the visual amenity experts called by the Council and the first co-respondent by election respectively, considered that the combination of the gross floor area and the setback incursions represented overdevelopment of the site.[54]  Mr McGowan also considered that the proposal would adversely impact on views from the river by presenting a poor quality interface with it and would erode the river’s landscape and scenic values.[55]  Mr McGowan and Mr Mack considered that the bulk of the proposal above the second level would have the appearance of protruding forward and encroaching upon the river front more than the other buildings in the vicinity.[56]  That evidence of course could not include Gemini Towers but I accept their evidence insofar as the other buildings in the study area are concerned. 
  1. [63]
    The evidence of those experts identified above in their joint expert reports was not shaken, or otherwise seriously challenged, in cross-examination. Further, I do not accept that the articulated sides of the building will have any material impact on how it will present to most viewing locations from the river or other vantage points.[57]  This was not only the evidence of most experts called by Council and the co-respondents by election but Mr Schomburgk was also of the opinion that the design of the building would not provide any material reduction in scale and bulk in its presentation to the river.[58]
  1. [64]
    Mr Schomburgk on more than one occasion displayed a degree of exasperation if not frustration about the lack of any definitive identification of exactly what the negative impacts of the proposed development were.[59]  I agree that there was, to an extent, a degree of abstraction in describing the visual negative impacts.  Mr Mack, Mr McGowan and Mr Kay all expressed views to the effect that the proposed development would give the appearance of “crowding the river”.[60]  Mr Schomburgk also agreed it would crowd the river, but he could not see that there would be any tangible impacts on waterway values as a result.[61]  In this context Mr Chenoweth, the visual amenity expert called by the appellant, accepted that the proposal would appear larger and closer to the river than a building with setbacks similar to that of Solitaire.[62]  Mr Chenoweth also agreed that setbacks similar to that of Solitaire would achieve a reduction in bulk and scale when viewed from the river. 
  1. [65]
    In his written submissions Mr Williamson in addressing this issue stated:[63]

“As to overcrowding, that contention is not made good by the photomontages – the photomontage from the Brisbane River viewing point, does not illustrate that the proposal overcrowds or dominates the bank.  It will be seen as one of a number of buildings that have a range of heights, bulk, scale and vegetated edges.  As Mr Kay frankly conceded, he very much doubted whether the casual observer would be offended by the proposal in this context.  This is a fair concession once the proposal is appreciated in its true context.”  (footnote deleted)

  1. [66]
    I cannot accept that submission. The photomontages present only a two dimensional representation of what will occur. And, in any event, they do not in my view contradict the expert evidence on the issue. As to Mr Kay’s concession, it was directed more towards a person’s perception about the extent of intrusions into the 20m waterway corridor rather than to the issue of height and bulk.[64] 
  1. [67]
    In some cases it is relatively straightforward to identify and describe the negative visual impacts of a proposed development in the context of its urban setting. For example, by reference to height or a manifestly obvious difference in bulk. However, sometimes it is not so easy when the impact is a more subtle one resulting from a combination of variations in height, length, depth and setbacks. In my view, even relatively subtle variations in dimensions can still result in an overall unacceptable negative visual impact. This is such a case. On balance, I consider the description of the proposed development resulting in an “overcrowding” of the Brisbane River when compared to other development, with the exception of Gemini Towers, in the study area, to be an acceptable description in its context. It would fail to maintain let alone enhance river bank views from the river or public vantage points.
  1. [68]
    For the reasons given I find that the proposed development is in conflict with P1 of the Waterway Code 2000.
  1. [69]
    In conclusion in respect of this issue I am of course conscious of the fact that the Solitaire building is the only development which has used a setting back of its upper floors to reduce its overall scale and bulk. However that is not to the point. With the exception of the much older Gemini Towers, none of the other buildings in the study area present such a bulky and profound interface with the Brisbane River.

The 2014 planning documents

  1. [70]
    As stated above, between the time of the lodgement of the Development Application and the Council’s decision notice, CP2014 was introduced. In his written submissions Mr Williamson stated:[65]

“The Council alleges that the proposal will conflict with the provisions of City Plan 2014. This is denied by the appellant.

Before turning to deal with the alleged conflict, it is relevant to make two general submissions. 

In the first instance, City Plan 2014 was not the law in force at the date the development application was made.  The appellant is entitled to have its development application assessed and determined against the provisions of City Plan 2000.  City Plan 2014 only arises in the context that it is a new law and policy and the Court may give it weight. 

In terms of the weight to be given to the document, it is submitted that weight would be given to ‘shifts’ in the planning policy rather than conflict with any particular provision.  This is because City Plan 2014 includes, in essence, the same planning intent for the Local Plan.”

  1. [71]
    On behalf of the Council and, as I understand it, the other co-respondents by election, it is accepted that the CP2014 is not determinative but that some consideration of it should be given in determining the outcome of the appeal.
  1. [72]
    Section 495 of the SPA relevantly provides:

“495   Appeal by way of hearing anew

  1. (1)
     An appeal is by way of hearing anew.
  1. (2)
     However, if the appellant is the applicant or a submitter for a development application, the court—
  1. (a)
     must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; ...”
  1. [73]
    In my view little weight ought to be given to the CP2014. There are no ambiguities in the CP2000 which might have been able to be clarified by reference to the new plan. Nor is there any inconsistency, indeed consistency, that might have potentially affected the outcome of this appeal. That is so despite a significant “shift”, as Mr Williamson put it, in the treatment of setbacks from the river. In the Waterway Code 2000 consistency in setbacks was included as part of the Performance Criteria, whereas in the 2014 Code it was “demoted” to be being a part of the Acceptable Outcomes. Also, as Mr Williamson emphasised, the requirement that there be similar height and bulk to adjoining buildings was deleted.
  1. [74]
    Those changes are significant but for the reasons discussed below this is not a case where the provisions of the CP2014 “evince a relevant change in planning strategy” of such significance that it could affect the outcomes of this appeal.[66]
  1. [75]
    Notwithstanding those views regarding the CP2014, given the attention given to it, particularly in Mr Job’s written submissions, I will deal with certain provisions.
  1. [76]
    That requires a consideration of the New Farm and Teneriffe Hill Neighbourhood Plan Code 2014 (“Neighbourhood Plan Code 2014”) and the Waterway Corridors Overlay Code 2014. As to the former, the Overall Outcomes for the Neighbourhood Plan Area relevantly include:[67]

“…

  1. development complements existing urban and landscape characteristics and cultural associations and contributes to the distinctive and identifiable character and sense of place of New Farm as a whole and of its distinctive neighbourhoods.

…

  1. development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed as a greater height, scale and form where there is both a community need and an economic need for the development”.
  1. [77]
    The Overall Outcomes for the Precinct refer to it being predominately medium density. According to Mr Job, a “notable” addition to the Neighbourhood Plan Code 2014 compared to the Local Plan 2000 is the general Performance Outcome contained in PO1, and AO1 which relevantly provide:

Performance CriteriaAcceptable Solutions

PO1

Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the Neighbourhood Plan area, contributes to a cohesive streetscape and built for the character and is:

(a) consistent with the anticipated density and assumed infrastructure demand;

(b) aligned with community expectations about the number of storeys to be built;

(c) proportionate to and commensurate with the utility of the site and frontage width;

(d) designed to avoid a significant and undue adverse impact to adjoining development;

(e) sited to enable existing and future buildings to be well separated from each other and avoids affecting the potential development of an adjoining site.

AO1

Development complies with the number of

storeys and the building height set out in table 7.2.14.1.3.B.

Note – neighbourhood plans will mostly specify a maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.

  1. [78]
    The table referred to in AO1 repeats the heights identified in the Local Plan 2000 of five storeys and 15m respectively. For reasons already given it would be unrealistic to expect future development, even under the CP2014, to be limited to five storeys and 15m.
  1. [79]
    It was submitted on behalf of the Council that the proposal was in conflict with PO1 because of its height and scale in that it would not “improve the amenity of the neighbourhood plan area”.  I am unable to accept that the proposed development would not be aligned with community expectations about the number of storeys to be built having regard to the surrounding existing apartment buildings and approved development.  I do however accept that, having regard to the proposed plot ratio, the proposed development would be in conflict with PO1(c) in that it would not be proportionate to the site area. 
  1. [80]
    Turning then to the Waterway Corridors Overlay Code 2014, the Overall Outcomes for this Code relevantly include:

“(2) …

  1. (d)
    Development designs the built form to support the natural landscape, recreation and amenity values of the waterway corridor.
  2. (e)
    Development in the Brisbane River corridor sub‑category (sections 1 to 5) maintains the corridor's important economic, cultural, transport, recreational, and ecological resource roles and its landscape and scenic amenity values.
  3. (f)
    Development is consistent with the character, functions and values along the sections of the Brisbane River corridor sub-category including: …”
  1. [81]
    For the reasons already given, the proposed development does not support the scenic amenity values of the Brisbane River. In this context I agree with the submission made on behalf of the Council that the “values” of the river corridor contemplates a range of characteristics including visual amenity values.
  1. [82]
    The Waterway Corridors Overlay Code 2014 also provides:

PO16

Development of a site in the Brisbane River corridor sub-category abutting the Brisbane River:

  1. (a)
    maintains and enhances the attractive appearance of the Brisbane River and its banks, when viewed from the Brisbane River, from development near the Brisbane River, or from other public viewing points;
  1. (b)
    uses materials for buildings, structures and landscaping which complement surrounding buildings, the visual character of the area and the character, functions and values of the corridor section.

AO16

Development involving buildings (excluding ancillary buildings or structures), parking and servicing areas, and areas for the storage of materials, goods or solid waste:

  1. (a)
    for the Brisbane River corridor sub-category – section 1 is set back a minimum 30m horizontal distance from the high water mark;
  1. (b)
    for the Brisbane River corridor sub-category – sections 2, 3, 4 and 5 is set back a minimum of 20m from the high water mark; or
  1. if the existing development on an adjoining lot is located within 20m of the high water mark, the setback does not extend closer to the high water mark than the existing adjoining development.

(emphasis added)

  1. [83]
    It can be seen that PO16 of the Waterway Corridors Overlay Code 2014 repeats to a material extent the Performance Criterion P1 of the Waterway Code 2000. However, I accept Mr Williamson’s submission to the effect that PO16 of the Waterway Corridors Overlay Code 2014 is less complicated than P1 of the Waterway Code 2000 and no longer relies upon the consistency of setbacks and building bulk and height in determining compliance. Under the CP2014, “setback” is defined as, relevantly, “for a building or structure, the shortest distance measured horizontally from the outermost projection of a building or structure to the vertical projection of the boundary of the lot.”[68]  The definition of “outermost projection” includes any part of a building including a roof or fascia.  While the definition of “setback” is referrable to the boundary of a lot, I accept the submission made on behalf of the Council to the effect that it would be “incongruous” to apply a different approach to that term when determining whether AO16 has been satisfied.
  1. [84]
    The proposed development includes a “structure”, being a three metre high retaining wall with a one metre high pool fence on top commencing 1.8 metres back from its property boundary nearest to the river. In any event, for the reasons given above, the proposed development would be in conflict with PO16(a).
  1. [85]
    Submissions were also made in respect of the Multiple Dwelling Code 2014. However, having regard to the conclusions already reached above, I do not consider it necessary to dwell any further on either CP2014 or the Waterway Corridors Overlay Code 2014.
  1. [86]
    For the reasons given, the proposed development is in conflict to a significant extent with not only important elements of the Local Plan 2000 (P2 and A2.1) but also with s 4.6 of the Waterway Code 2000 (P1 and A1.1).  While in no way a determinative factor in the outcome of this appeal, for the reasons given I also find there is significant conflict with material parts of the Neighbourhood Plan Code 2014 and the Waterway Corridors Overlay Code 2014.  In this regard I am unable to accept the submission made on behalf of the appellant to the effect that conflict with the Waterway Code 2000 is minor if not technical.

Sufficient grounds

  1. [87]
    It is submitted that in the event that conflict was found, then there were sufficient grounds to warrant approval despite that conflict. In the written submissions of Mr Williamson, the sufficient grounds case was put in this way:[69]

“The grounds can be stated as follows:

  1. (a)
    The subject proposal, will not have any unacceptable impacts on amenity and, indeed, is consistent with the values and functions of this part of the Brisbane River corridor.  It will enhance those values.  That enhancement is achieved whilst also achieving a modest increase in population, which is expressly envisaged by the Local Plan; and
  1. (b)
    The proposal complies with the most recent statement of intent for the Brisbane River corridor and the protection of its function and values – the WCO Code which directly responds to the conflicts if any, arising under the Waterway Code in City Plan 2000.”
  1. [88]
    The primary evidence concerning the “sufficient grounds” argument was that given by Mr Schomburgk. He, quite properly in my view, readily acknowledged that many of the grounds proposed by him would not be determinative on their own.[70]  The grounds identified by Mr Schomburgk could be summarised as follows:[71]

“i)  The planning schemes, including the current City Plan 2014, have been overtaken or diluted to some extent by events – those events being the approval and development of buildings in excess of 5 storeys. That is, both the planning authority and the Court have allowed other approvals beyond 5 storeys in height in this planning area/zone/locality;

  1. The subject site sits within an elongated strip of Medium Density zoned land, extending from the northern end of Bowen Tce, along Moray St, Griffith St and Oxlade Drive, down to the Bowls Club, generally along the riverfront. As such, it must be expected that development on this side of Griffith St will differ in form and height to that on the eastern side, which is in the Low-medium density zone;
  2. The subject site sits along a stretch of the riverfront where there is already a number of tall buildings in excess of 5 storeys. The proposed building will sit within that context, creating an appropriate streetscape/river-scape;
  3. The “usual suspects” for unacceptable impacts from developments such as this are traffic, noise, overlooking, privacy, and the broad concept of general amenity. None of those are of concern in this case (in my opinion). This leaves the issues of height, bulk and built form generally, matters that are to some degree subjective, but for which I accept the opinions of Messrs Peabody and Chenoweth (in the Joint Reports of Architecture and Visual Amenity experts respectively);
  4. The proposed development does not give rise to any unacceptable negative impacts on its neighbours, the streetscape, or the locality as a whole.
  5. It is my opinion that, if there is any conflict, it is necessarily at the lower end of the conflict scale, given the absence of unacceptable negative impacts that arise from the proposed development.”
  1. [89]
    For the reasons given, the conflicts with the town planning scheme are not minor nor technical; they are real and significant. Also, for the reasons given above, I am unable to accept the submission that the proposed development is consistent with the values and functions of “this part of the Brisbane River corridor”. It does have unacceptable impacts and will not maintain, let alone enhance, those “values” discussed above. Also, for the reasons given above, I am unable to accept that the introduction of the Waterway Corridors Overlay Code 2014 would, in some way, support approval.

Conclusion

  1. [90]
    The proposed development is in substantial conflict with CP2000. There are no sufficient grounds that would warrant approval in the face of such conflict.
  1. [91]
    Accordingly, the orders of the Court are:
  1. The appeal is dismissed.
  1. Any application concerning costs is to be made on or before 15 October 2015.

Footnotes

[1]See Exhibit 1, tab 11, p 43, para 3.8 and Appendix F; also see Exhibit 29.

[2]See Exhibit 3 at pp 21 and 22.

[3]Exhibit 1, tab 12, p 128, para 1.4 and tab 13, p 228, figure 9.

[4]Exhibit 4, para 3.8 and 3.9, and per Mr Schomburgk, T4-56 L 36-40: see also Exhibit 1, tab 12, para 4.1.1.

[5]See Exhibit 13 and Exhibit 4 at p 38.

[6]See as example Exhibit 3 at pp 21 and 22.

[7]Exhibit 1, tab 9, p 25.

[8]Ibid, p 24.

[9]Ibid, p 26.

[10]Per Mr Peabody T3-56 L 24.

[11]Exhibit 7.

[12]Exhibit 4, p 4, para 4.4.i.

[13]Ibid, p 4, paras 4.4.ii and 4.4.iv; also refer generally to Exhibit 1, tab 9, p 24 and Exhibit 3, p 24.

[14]Exhibit 4, p 6, para 4.4.vi.

[15]Exhibit 3, p 17, attachment 1. 

[16]Exhibit 3, p 3, paras 3.1 to 3.3.

[17]For further discussion refer to paras [70] to [74] of this judgment.

[18]Written submissions, paras 1 to 7.

[19]Exhibit 2, tab 2, p 6.

[20]Ibid.

[21]Exhibit 2, tab 2, p 9.

[22][2009] QPELR 35 at [49].

[23]Exhibits 16, 17, 18 and 25.

[24]Written submissions, para 61.

[25]Written submissions, para 69.

[26]At paras 63-67.

[27]T6-11 L 28-34.

[28][2009] QPELR 35 at [50].

[29]Written submissions, para 64.

[30]T6-61 L 3-35.

[31]Such a conclusion was also supported by Mr Brown, the town planner relied on by the Council (T5-7 L33-43), Mr Kay, the town planner relied on by the first co-respondent by election (T5-48 L20-28 – T5-49 L37-41) and Mr Chenoweth, the visual amenity expert relied on by the appellant (Exhibit 1, tab 12, para 4.1.31).

[32]Exhibit 3, pp 21 and 22.

[33]Mr Brown at T5-12 L9-19; T5-39 L27-36: Mr Kay T5-60 L10-34.

[34]Refer to Council’s Decision Notice in Exhibit 1, tab 10, and Exhibit 5 pp 3-5.

[35]At paras 71, 73 and 74.

[36]T6-62 L1-34.

[37](2004) QPELR 521 at 524 [20].

[38](2011) QPELR 406 at 414 [56].

[39]Written submissions para 128.

[40]T6-62 L15-23.

[41]Written submissions para 25.

[42]See Exhibit 13.

[43]Exhibit 22.

[44]For setback and encroachment measurements in this paragraph and paragraphs [52] and [53] below, see generally ‘Agreed Responses to Questions from Jones DCJ regarding Building Heights and Setbacks.

[45]Written submissions paras 205-207.

[46]Exhibit 1, tab 11, para 6.10.

[47]See Exhibit 1, tab 9, p 20, Exhibit 21 and Exhibit 13.

[48]Written submissions paras 221, 222, 223 and 230.

[49]Exhibit 29.

[50]See generally T4-80 L31-33, T4-81 L20-25, T4-83 L20-40.

[51]T5-35 to T5-39.

[52]T5-50 L21-29.

[53]Exhibit 3, p 4, para 4.2.

[54]Exhibit 1, tab 12, para 4.1.37.

[55]Ibid at paras 4.1.12 and 4.1.22.

[56]Ibid at para 4.1.33.

[57]Per Mr Chenoweth at T2-50 L39-45.

[58]T4-69 L42 – T4-70 L2: also see Mr Chenoweth at T2-67 – T2-68.

[59]T4-97 L15-47 – T4-98.

[60]Exhibit 1, tab 12, para 4.2.5 and Exhibit 1, tab 13, para 5.1.34; per Mr Mack at T4-4 L23-27 and T4-37 L29-37: per Mr McGowan at T2-45 L44.

[61]T4-98 L30-35.

[62]Exhibit 1, tab 12, para 4.1.31; T2-50 L39-45.

[63]Para 217.

[64]T5-51 L30-36; T5-49 L37 – T5-50 L5.

[65]Paras 237-240.

[66]WAW Developments Pty Ltd v Brisbane City Council [2015] QPEC 038 per Rackemann DCJ.

[67]Exhibit 2, tab 7, pp 77-78.

[68]CP2014 schedule 1, table SC1.2.2B.

[69]Para 267.

[70]T4-88 L16-19.

[71]Exhibit 1, tab 13, para 5.5.2.

Close

Editorial Notes

  • Published Case Name:

    BTS Properties (Qld) Pty Ltd v Brisbane City Council & Ors

  • Shortened Case Name:

    BTS Properties (Qld) Pty Ltd v Brisbane City Council

  • MNC:

    [2015] QPEC 47

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    01 Oct 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Calvisi & Ors v Brisbane City Council & Ors (2009) QPELR 35
3 citations
Jump To
Cite 1 - (2009) QPELR 35
Cite 2 - (2009) QPELR 35
Cite 3 - (2009) QPELR 35
Page Main Beach Pty Ltd v Gold Coast City Council (2011) QPELR 406
2 citations
Jump To
Cite 1 - (2011) QPELR 406
Cite 2 - (2011) QPELR 406
Purcell Family v Gold Coast City Council & Ors (2004) QPELR 521
2 citations
Jump To
Cite 1 - (2004) QPELR 521
Cite 2 - (2004) QPELR 521
WAW Developments Pty Ltd v Brisbane City Council [2015] QPEC 38
2 citations
Jump To
Cite 1 - [2015] QPEC 38
Cite 2 - [2015] QPEC 38

Cases Citing

Case NameFull CitationFrequency
Andema Pty Ltd v Noosa Shire Council [2020] QPEC 461 citation
Jakel Pty Ltd v Brisbane City Council [2018] QPEC 212 citations
VG Projects Pty Ltd v Brisbane City Council [2016] QPEC 151 citation
1

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