Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2015
  4. Cowen v Brisbane City Council - [2015] QPEC 50

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Cowen v Brisbane City Council[2015] QPEC 50

Cowen v Brisbane City Council[2015] QPEC 50

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Cowen & Anor v Brisbane City Council & Anor [2015] QPEC 50

PARTIES:

PETER COWEN

&

LOU FERRARIN

(appellants)

v

BRISBANE CITY COUNCIL

(respondent)

&

NEXTRA AUSTRALIA PTY LTD

(co-respondent)

FILE NO/S:

939/15

DIVISION:

Planning & environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland

DELIVERED ON:

19 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24, 25 and 28 September 2015

JUDGE:

RS Jones DCJ

ORDER:

  1. The appeal is dismissed.
  1. The matter is adjourned to 2 November 2015, on which date the parties are to seek final orders on an agreed set of conditions.
  1. On 2 November 2015 the parties are to advise the court of their position as to costs.

CATCHWORDS:

APPEAL – where respondent council approved multi-unit development at Highgate Hill – where submitters contended proposed development in conflict with town plan – where conflicts said to arise under City Plan 2000 and City Plan 2014.

CONFLICT – where asserted proposed development in conflict with City Plan 2000 and City Plan 2014 in respect of traffic and parking – street character – height, bulk and scale.

ONUS OF PROOF – where co-respondent developer still bore onus of proof despite being respondent to appeal – Section 495 Sustainable Planning Act 2009.

SUFFICIENT GROUNDS – where conflict with City Plan 2014 found in respect of height, bulk and scale – whether sufficient grounds existed warranting approval of the proposed development despite the conflict.

Sustainable Planning Act 2009

Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342

Baptist Union of Queensland v Brisbane City Council & Anor (2003) QPELR 61

Hankamer & Ors v Brisbane City Council & Anor (2013) QPELR 800

Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64

K Page Main Beach Pty Ltd v Gold Coast City Council & Anor [2011] QPEC 1

Lockyer Valley Regional Council v Westlink Pty Ltd (No. 3) (2012) 191 LGERA 452

Mackay Shopping Centres Pty Ltd v Mackay Regional Council (2013) QPELR 661

Scurr v Brisbane City Council (1973) 133 CLR 242

SDW Projects Pty Ltd v Gold Coast City Council & Anor (2007) QPELR 24

Stockland Development v Townsville City Council & Ors (2013) 195 LGERA 317

Szylkarski & Ors v Brisbane City Council & Anor (2013) QPELR 205

Weightman v Gold Coast City Council & Anor [2003] 2 Qd R 441

Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337

Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273

Zappala Family Trust Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82

COUNSEL:

Mr M Batty for the appellants.

Mr J Lyons for the respondent.

Mr A Skoien for the co-respondent.

SOLICITORS:

Thynne Macartney for the appellants.

Brisbane City Legal Practice for the respondent.

Cranston McEachern Lawyers for the co-respondent.

  1. [1]
    This proceeding was concerned with an appeal against the Brisbane City Council’s (the Council) approval for a development permit for a material change of use (multi-unit dwelling) and preliminary approval for building work. For the reasons set out below the orders of the court are:
  1. The appeal is dismissed.
  1. The matter is adjourned to 2 November 2015, on which date the parties are to seek final orders on an agreed set of conditions.
  1. On 2 November 2015 the parties are to advise the court of their position as to costs.  

Background

  1. [2]
    The subject land is located at 26 Derby Street, Highgate Hill and is more particularly described as Lot 5 on Registered Plan 67303. Mr Cowen and Mr Ferrarin (the appellants) reside either side of the subject land at 20 and 28 Derby Street respectively. Both of the dwellings owned and occupied by the appellants are pre-1946 structures. Entirely out of character with those dwellings is the house located on the subject land which is of a modest 1960’s-1970’s design described as being unremarkable. The dwelling on the subject land of course would have to be demolished to accommodate the proposed development.
  1. [3]
    On or about 20 August 2013 the co-respondent (Nextra) lodged a development application with the Council. The development application was impact assessable and, notwithstanding properly made submissions opposing the proposed development, on 9 January 2015, the Council issued a decision notice approving it subject to conditions.

The subject land and its location

  1. [4]
    The subject land has a 15.09m frontage to Derby Street to the north and fronts the Brisbane River to the south. The total area of the site is 1,032m2.  Derby Street “splits” almost adjacent to the subject land which was described as “lower Derby Street”.  Sections of Derby Street are very narrow and more will be said about that when dealing with the issues of traffic and parking. 
  1. [5]
    The neighbourhood in which the subject land is located has a number of unusual features and the town planners agreed that it is a contained neighbourhood, almost an enclave. Mr Holt, Ms Morrissy and Mr Buckley, the town planners for Nextra, the Council and the appellants respectively, described the locality in the following way:[1]

“2.2.1 The immediate locality is largely comprised of two storey houses with some multiple dwellings interspersed throughout. A number of houses in the locality including those adjoining the site to the east were constructed prior to 1946. There are a number of houses and multiple dwellings of modern design in amongst the character houses, and building height is predominately two storeys with the presence of some three storey buildings. Ms Morrissy says it is of note that there are some taller buildings in the area, particularly on Beaconsfield Street and Gladstone Road.

2.2.2 Derby Street and the contained neighbourhood it forms part of, are unusual in a number of respects. First, Derby Street and Rosebery Street which are connected to Beaconsfield Street (which in turn connects with Gladstone Road) are not through roads. It is a contained neighbourhood, almost an enclave. Second, it slopes quite dramatically from Beaconsfield Street to the river. Third, Derby Street itself ‘splits’ near the subject site and has two parallel carriage ways, with the subject site on the lower narrow component which Mr Buckley says is, when compared to typical residential streets is very narrow. This lower part has a fourth distinguishing element in terms of the road and the houses’ relationship to the road. At best, this lower carriage way is single lane. Most houses (including a boarding house) on this lower component of Derby Street overlook the river and all are on or very close to the road alignment.

2.2.3 The character of this contained locality is made of the all the parts described in this section of the report. It is low rise and profile, features a mix of residential types and age, and from many parts, has an outlook towards the Queensland University Campus which is well in view from the higher parts of this immediate locality.

2.2.4 The following uses adjoin the site:

  • to the north are three side by side pre-1946 dwellings separated by two roads
  • to the south (rear) is the Brisbane River
  • to the west is a multi-unit dwelling (boarding house) and
  • to the east is a pre-1946 dwelling…” (emphasis added)
  1. [6]
    I consider that to be a sufficiently accurate description of the relevant locality. The “boarding house” referred to by the town planners is the house occupied by the appellant Mr Ferrarin. He resides on the top floor which, general speaking, is at street level and below that are four flats.
  1. [7]
    Another unusual feature of the subject land and indeed all of the surrounding lots fronting the river is that they are subject to an environmental protection area under both the City Plan 2000 and City Plan 2014 (CP2000 and CP2014) which is heavily vegetated. All of the proposed development is to occur on the balance of the land which falls within the Low-medium Density Residential Area covered by the Residential Design – Low Density, Character and Low-medium Density Code under CP2000. It is also located within the area of the West End-Woolloongabba District Local Plan and is covered by the West End-Woolloongabba District Local Plan Code under the CP2000. It also falls within a Demolition Control Precinct and is covered by the Residential Design – Character Code.
  1. [8]
    On 30 June 2014, after the lodging of the development application but before the decision notice issued by the Council, CP2014 was introduced. It was uncontroversial that, having regard to the timing involved, it was necessary to consider the proposed development in the context of both planning schemes. That said, the CP2000 was, in my view, the dominant consideration.[2]  Under CP2014 the subject land was now partly within the Low-medium Density Residential Zone and, accordingly, was covered by the Low-medium Density Residential Zone Code.  The balance of the site approximate to the Brisbane River fell within the Environmental Management Zone under CP2014.  In addition, the land was located within the West End-Woolloongabba District Neighbourhood Plan Area and was covered by the West End-Woolloongabba District Neighbourhood Plan Code under CP2014.  Also under the CP2014 the proposed development is identified as a Multiple Dwelling and covered by the Multiple Dwelling Code.  The land remained within a Demolition Control Precinct.

The proposal

  1. [9]
    While no development works will occur within the environmental area adjacent to the river, it is intended that rehabilitation of vegetation within that area would occur as a part of the development.[3] 
  1. [10]
    The proposed development consists of six separate levels. At street level (level 5) is an undercover lockup garage providing for eight car parks, two of which are limited to small cars only. Also at this level is an uncovered visitors’ car park. Above the car park is a two-bedroom apartment (level 6). Below the car park is a three-bedroom apartment (level 4) and below that another three-bedroom apartment (level 3). Level 2 comprises of two two-bedroom apartments and the lower level (level 1), consists of one two-bedroom apartment.[4]  Given the steepness of the site, as it falls from road level to the river, extensive earthworks will be required to the extent that significant parts of the units at levels 1 and 2 will be constructed within cut.[5]  According to the visual amenity experts, Mr McGowan for the Council and Mr Burton for Nextra, some 309m2 of the gross floor area (GFA) will be below natural ground level.[6]  The development was variously described as either cascading down the site towards the river or stepping up the site from the river to the road.
  1. [11]
    The street presentation of the proposed development is said to be a reasonable attempt to recreate a pre-1946 dwelling. I agree with that assessment and the proposed presentation to Derby Street will certainly be an improvement over that provided by the existing dwelling on the site which is entirely out of character.[7]  From the south looking north, that is from the river or from across the river, the proposed development will present as a very modern structure, although its exposure will be, to a not insignificant extent, moderated by the heavily vegetated environmental area and landscaping.  As was the case with the street presentation, no serious issues were raised concerning its presentation either to the river or across the river.  In relation to the proposed built form, of particular concern was the way the building would present to the neighbouring properties to the east and west, not only in respect of the modern appearance but, more significantly, by reference to the height, scale and overall bulk of the proposal. 

The minor change application

  1. [12]
    On the first day of the hearing of this appeal, Mr Skoien, counsel for Nextra, made an oral application for relief pursuant to s 350 of the Sustainable Planning Act 2009 (“the SPA”).  It is not necessary to dwell on the changes involved or underpinning the application at this stage other than to note that the application was not opposed by Mr Lyons, counsel for the Council, nor by Mr Batty, counsel for the appellants, and that I was satisfied that the changes involved were minor for the purposes of s 350.[8]  The appeal was conducted on the basis of the proposed development as altered by the minor change(s).

The statutory framework

  1. [13]
    Pursuant to s 326 of the SPA, the development application must be refused if:
  1. (a)
    there is conflict between the development application and the relevant planning scheme(s);
  1. (b)
    sufficient grounds to justify approval of the development application (despite the conflict) do not exist.

Conflict means to be at variance or disagree with.[9]

  1. [14]
    Pursuant to ss 493 and 495 of the SPA:
  1. (i)
    the appeal is by way of hearing anew;
  1. (ii)
    the court may give such weight to any new laws and policies that the court considers appropriate; and
  1. (iii)
    notwithstanding that this appeal has been commenced by the appellant submitters, it is Nextra that bears the onus of demonstrating that the appeal ought be refused and the decision of the Council affirmed.

The issues

  1. [15]
    Mr Skoien during his opening tendered his client’s attempt to identify the substantive issues in the appeal.[10]  Mr Batty in his written submissions relevantly said:[11]

“The issues in the appeal are summarised by Exhibit 1.  In short the issues in dispute relate to:

  1. (a)
    the height, bulk and scale of the proposed development (and resultant amenity impacts);
  1. (b)
    character matters;
  1. (c)
    traffic and parking matters;
  1. (d)
    reasonable expectations; and
  1. (e)
    grounds.

Each of these matters will be considered below.

The issue of height, bulk and scale is a critical issue in the appeal.

Essentially, in order to comply with the applicable planning instrument in this regard, the co-respondent must demonstrate that the proposed development would have a height, bulk and scale that:

  1. (a)
    is consistent with the ‘low to medium density of the locality’; and
  1. (b)
    is compatible in height, bulk and scale with adjoining houses.” (emphasis added)
  1. [16]
    I respectfully agree with the observation of Mr Batty, and indeed, of all the counsel involved, that the issue of height, bulk and scale was the most critical issue in the appeal.
  1. [17]
    I will now address to each of the matters, although, not necessarily in the order identified above.

Traffic and parking

  1. [18]
    It is clear that on street parking (or the lack thereof) is an issue of real concern to a number of the residents in Derby Street. It has, on occasions, reached the stage where arguments and indeed physical altercations have occurred and there have been a number of collisions with parked cars. Indeed, even the evidence of Mr Scutt, the traffic engineer relied on by the appellants, seemed more concerned with the potential to create more on street parking problems than he was with the actual on site parking problems. According to him the constraints associated with the on site parking arrangements may encourage or at least make on street parking “an attractive alternative”.[12]
  1. [19]
    Another of Mr Scutt’s concerns was that the proposal only provided for one visitor car park. According to the relevant provisions of CP2000 two visitor car parks ought to be provided for. On this issue I much preferred the evidence of Mr Camilleri, the traffic engineer relied on by Nextra and largely supported by the evidence by Mr Trevilyan, the traffic engineer relied on by the Council. Mr Scutt’s concerns seem to involve matters of form rather than substance. That is, his complaint seemed to be if CP2000 required two visitor car parks then that is what ought to be provided.[13]  The approach adopted by Mr Camilleri and Mr Trevilyan was more problem solving in my view and I accept their evidence to the effect that it was a better all-round solution to provide for as much on site parking for residents as is practicable, because that outcome was more likely to minimise on street parking. 
  1. [20]
    As to the on site parking arrangements, while I can readily accept Mr Scutt’s concerns about it being constrained, if not very constrained,[14] I do not consider that to be a particularly significant factor in the scheme of things. In this regard I accept the evidence of Mr Camilleri to the effect that the residents and other users of the car parks would soon adapt and be able to deal with the car parking constraints.  Broadly speaking, Mr Scutt was also prepared to accept that proposition.[15]  I am also satisfied that other issues raised by Mr Scutt, including the introduction of barrier walls and the turning circle or manoeuvres associated with the visitors car park, can be dealt with as a part of the design and construction phase of the project.  I am also satisfied that it is unlikely that any convenience issues associated with the on site parking would lead to any material increase in on street parking.
  1. [21]
    In the joint expert report of the traffic engineers[16] it is reported:

“All experts generally agreed that, given the small scale of the development, designing the car park to comply with Australian Standard Parking Facilities Part 1: Off-street car parking (AS 2890.1) would be an acceptable outcome, particularly if it resulted in additional spaces being provided.”

  1. [22]
    That is, each of the traffic engineers agreed that having regard to the scale of the proposed development it was not necessary to strictly comply with the relevant transport, access, parking and servicing code (TAPS Code) of CP2000 (or under CP2014). While it is accepted that the proposed car parking does not satisfy the TAPS Code nor in some respects does it satisfy the provisions of the Australian Standard, it is of significance that Mr Scutt’s concerns in that regard were only directed towards the convenience of the car parks and no issues of safety were involved. On balance, having regard to the scale of the proposed development and its location the proposed parking arrangements:
  1. (a)
    provide for safe and reasonably convenient and accessible car parking; and
  1. (b)
    would most likely discourage on street parking rather than encouraging it.
  1. (c)
    Otherwise adequately deals with local traffic and parking.
  1. [23]
    Accordingly, I am satisfied that there is no reasonable basis for refusing the proposed development based on traffic and/or parking grounds. While the acceptable solutions identified by Mr Batty[17] are not met, the central objects and outcomes identified in the relevant Performance Criteria have been met, and no conflict arises.

Character

  1. [24]
    In dealing with this issue, the Residential Design – Character Code of the CP2000 relevantly provides the following performance criteria and acceptable solutions:

Performance Criteria

Acceptable Solutions

P2 The building height and bulk must complement the predominant scale of pre-1946 houses nearby in the street…

 

 

 

 

 

P4 The building form must complement the traditional elements of the pre-1946 houses nearby in the street…

 

 

 

 

 

 

P6 External elements, materials and detailing must reflect pre-1946 architectural themes, and reduce building bulk and form a transition with the external landscape.

 

For houses (including small lot houses)…

For multi-unit dwellings:

A2.2 Buildings that are taller or wider than the type of building prevalent in the street consist of clearly distinguishable parts similar in scale to existing pre-1946 housing…

…

A4.1 The building includes a solid core with attached or integrated light weight verandah or balcony structures.

A4.2 Different floor levels are distinguished with the use of entries, windows and balconies.

A4.3 Where the building is located at the front of the site, living areas, verendahs and windows are orientated towards to the street.

…

A6.1 External elements such as lightweight verandahs and stairs, eaves, overhangs, sunhoods, lattice screens and batten panels are evident to reflect those pre-1946 houses nearby in the street and are sufficient to cast shadows and provide three dimensional effects.

…

A6.2 Where masonry is used it is rendered and/or painted and used in conjunction with other more lightweight materials, particularly to define upper and lower levels…

  1. [25]
    The visual amenity experts both agreed that the Acceptable Solutions were not met by the proposal.[18]
  1. [26]
    In addition to those Performance Criteria and Acceptable Solutions identified above Mr Batty, in his written submissions, submitted that:[19]

“134 The performance criteria set out above reflect a strong and consistent theme throughout City Plan 2000 that development subject to the Character Code should strengthen and reflect pre-1946 character housing elements.

135 Such a theme is made clear by other provisions in City Plan 2000 including:

  1. (a)
    The purpose of the Character Code which states that Code seeks to ‘encourage development … to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing.’
  1. (b)
    The intent of the LMR Zone which provides that ‘new buildings reflect many of the Precincts (being the Demolition Control Precincts) architectural themes.’
  1. (c)
    The Residential Area provides in chapter 3 of City Plan 2000 which speak of:

‘An important characteristic of the city’s older suburbs is the traditional architecture. Demolition Control Precincts are locations in the older suburbs where pre-1946 houses are still dominant. Specific provisions apply in the Demolition Control Precincts to preserve and complement much of this architectural character by requiring… compliance with the Character Code for new development.’

 (d) City wide strategies to achieve DEO 3.3.1 which speaks of,

‘enhancing character-development that is sympathetic to character of surrounding areas’; and

  1. (e)
    City wide strategies to achieve DEO 3.2.1 which provides,

‘sympathetic development – buildings, structures and landscaping that complement the surrounding character and style…’” (footnotes deleted)

  1. [27]
    After referring to a passage from a decision of his Honour Judge Robin QC in Szylariski & Ors v Brisbane City Council & Anor[20] Mr Batty submitted it would be wrong to focus only on the way the proposed development presents to Derby Street.  While I accept that proposition, for the reasons given below, I have concluded that the way that it would present to Derby Street to be the most significant factor to be taken into account. That of course does not mean that the other elevations are irrelevant.  After referring to a passage of evidence from Mr Buckley, the town planner for the appellants, that:[21]

“…the development as a whole is as far from a pre-1946 scale as could be imagined… it cascades down the slope over seven quite distinct levels and is a solid structure… and it is difficult to identify… a core and attached lightweight structures; clearly distinguishable parts similar in scale to pre-1946 housing; and lightweight elements.”

Mr Batty submitted:[22]

“The proposed development when assessed from its western, eastern and southern elevations would not:

  1. (a)
    complement the traditional elements of pre-1946 houses nearby in the street; or
  1. (b)
    have external elements, materials and detailing that reflects pre-1946 architectural themes.

Indeed, the view of Ms Morrissy in the town planning joint report that the proposed development would ‘not be in extreme conflict with the character of the locality’… suggested that even Ms Morrissy was of the view that there was an element of conflict between the proposed development and the character of the locality.

It is submitted that the proposed development is in conflict with P2 and P4 of the Character Code.”

  1. [28]
    Consistent with what I have said above, no real issue was raised in respect of the proposal’s presentation to Derby Street. It is also significant that on the riverside of Derby Street there are three large and modern residential dwellings (single unit) located to the east of Mr Cowen’s residence.[23]  In this context the visual amenity experts reported:[24]

“Whilst there are no buildings of a similar form (terraced units) currently on Derby Street there are a number of large houses.  There are also a number of similar developments (and large terraced houses) relatively nearby in Rosecliffe Street (such as no.s 11, 17, 23 and 61) (refer figure 13 and figure 14) as well as larger unit developments in the local area.  Notably, no. 23 Rosecliffe Street, like the proposed development, does not have a residential unit at street level (refer figure 15).”

The statement of Mr Cowen also conveniently includes a number of photographs of buildings in the near vicinity.[25]

  1. [29]
    In my view, the solid elevation to the river is of little relevance in the context of this appeal. That is, so for the following reasons. First, it would not be readily seen by any observer either situated on Derby Street or even in any of the residences located in reasonable proximity to the proposed development. Further, having regard to the existing and proposed vegetation[26] and the mixed nature of the development fronting the river within the subject location I do not consider it likely that any observer from the river or from the university or any other advantage point to the south would recognise the area as one typified by pre-1946 dwellings. 
  1. [30]
    Turning to the eastern and western elevations, as they would present to each of the appellants, they would certainly not present as pre-1946 design or construction. The visual amenity experts called on behalf of Nextra and the Council readily acknowledged as much but considered the presentation to Derby Street to be the most significant consideration. In this regard I accept the evidence of Mr McGowan and Mr Burton that:[27]

“The experts agree that the part of the proposal that presents to Derby Street is clearly of traditional house scale… and is of a scale and form that will sit comfortably in the existing streetscape, which comprises a diversity of building form and scale…

Furthermore, although not taller or wider than the type of building prevalent in the street, the part of the proposal it presents to Derby Street clearly consists of distinguishable parts.

For these reasons the experts believe the proposal satisfies Acceptable Solution A2.2 and Performance Criterion P2.”

  1. [31]
    In Szylkarski Judge Robin QC observed:

“The purpose of the Code [being the LMR Code] is to effectively manage impacts of new development on neighbours… the purpose of the Code … is directed to ensuring that new development represents a sympathetic neighbour to what is there…”[28]

  1. [32]
    In his written submissions[29] Mr Batty contended that from the backyard of Mr Cowen’s residence (20 Derby Street) the part of the proposed development that would be visible would be the eastern side of the proposed development which would include:
  1. (i)
    a site elevation approximately three times the size (or length) of his own house;
  1. (ii)
    a wall dominated by rendered masonry finish;
  1. (iii)
    glass balustrades;
  1. (iv)
    an acoustic fence; and
  1. (v)
    a flat roof.
  1. [33]
    The dimensions of the side elevations will be dealt with in more detail when dealing with the issue of bulk and scale. Leaving aside for the moment whether or not the roof of the proposed development would be highly visible from Mr Cowen’s backyard, the elevations that would present to Mr Cowen and indeed Mr Ferrarin would not comply with any of the Acceptable Solutions. However, it is well recognised that town planning documents are to be read not only as a whole but also not in a pedantic way, nor be subject to the same scrutiny and precision more associated with construing statutes and contracts. That is so because “good town planning, basic principles aside, depends on a large element of fluidity and flexibility.”[30]
  1. [34]
    In SDW Projects Pty Ltd v Gold Coast City Council & Anor[31] Rackemann DCJ observed:

“The Performance criteria are generally outcome focussed, while the Acceptable Solutions indicate a ‘desirable’ way to ‘ensure’ compliance.  The Acceptable Solutions however, are not the only solutions.  Performance criteria generally ought not be interpreted as requiring adoption of the Acceptable Solution or even as requiring an alternative solution to be akin to the Acceptable Solution.

It is not legitimate to regard departure from the Acceptable Solution as necessarily indicating non-compliance with the Code.  In this regard, Acceptable Solutions differ from development standards which were often a feature of town planning schemes under the former regime.  Compliance with such standards was commonly required unless a relaxation or dispensation was granted.  Under the performance based approach, the acceptance of an alternative solution does not represent a ‘relaxation’ or a ‘dispensation’.  It is another way of achieving compliance with the relevant Performance criterion.”

  1. [35]
    His Honour expressed the same views in K. Page Main Beach Pty Ltd v Gold Coast City Council & Ors.[32]   In that case his Honour was concerned with a proposal for a seven or eight storey building at Main Beach near Tedder Avenue.  The central issue in the appeal was the height of the proposal in the context of Acceptable Solutions which provided that “all buildings must be of a height which is in keeping with the predominant residential character of the surrounding area: building height must not result in a significant loss of residential amenity.”  At paragraph 36 Judge Rackemann said:

“A proposed building which exceeds the acceptable solution as substantially as this one does would ordinarily attract somewhat closer scrutiny than one which exceeded the designation to only a minor extent, but ultimately the test is not whether the proposal approximates the acceptable solution, but rather whether it meets the performance criterion…” (footnotes deleted)

That approach is, with respect, clearly correct.

  1. [36]
    The two pre-1946 dwellings on 20 and 28 Derby Street also have to be considered objectively in context. The subject land has been designated to accommodate residential apartments and is occupied by a dwelling that is as far removed from a pre-1946 house as could be imagined. Also, as all the relevant experts agreed the subject land and, indeed the houses at 20 and 28 Derby Street, are located in an area of mixed development. Indeed to the east of Mr Cowen’s house are three large modern dwellings, two of which would be readily visible from the eastern side of Mr Cowen’s house and from his front yard. Also, while the proposed landscaping will not disguise the form of construction of the eastern and western sides of the proposal it will to some extent lessen the impacts. In this regard, it is also significant in my view that these elevations are side views. By far the most dominant source of attention from the rear of the adjoining houses is the river and beyond. Finally on this issue, as I have already identified, I consider the presentation to the street to be the most significant consideration.
  1. [37]
    It is tolerably clear from the plans that any person either walking or driving along Derby Street would see it as a modern building but also as one sympathetic to its pre-1946 neighbours. The appellants did not call a visual amenity expert however Mr Buckley, their town planner, on a number of occasions referred to the physical features of the proposed development. I have already referred to one part of his evidence above. However, it seemed tolerably clear to me that his major concern with what was proposed was not so much the “character” of the development but its bulk and scale. In evidence-in-chief the following exchange took place:[33]

“Question:  Mr Buckley, are you of the opinion that the proposed development is compatible with the adjoining residences?

Answer:  No.

Question:  Why?

Answer:  Well, the scale of the proposed development is something quite – quite different – both in terms of – sorry – in all the dimensions that one would anticipate in – in the land partly zoned on the subject land and in a physical comparison across the side boundaries, which is probably the ones that are most pertinent to the issues of impact and relationship between buildings, there is simply no comparison.

…

Question:[34]  In your professional opinion is the proposed developing in conflict with either City Plan 2000 or City Plan 2014?

Answer: Yes. It is, and as indicated by my answer to your question before, the – the dual zoning creates, I think, a planning – it’s like – it’s like a bad start, you know, they’re cramming and trying to prop up the density by using land that was not – never intended to have anything more than a house, and maybe a house in just some special circumstances, but its propping up the density on the site, and I think any planning analysis that relies on the whole site for its justification must be compromised in that – in that situation. Might be an old school thinking, but that’s certainly the impression I form professionally, because all – all the planning intent that planning authorities put into planning schemes is expressed spatially, both – principally through colouring maps, and the maps pertain to particular areas. They pertain to cadastre, and everything starts to build from there. So it is a fundamental point from which issues of incompatibility rise. That’s, I think, an indicator that it – it hardly gets a tick on any of the acceptable solutions. It’s looking for performance variations in most of those areas of acceptability, and, of course with the most – the most recent form of statement of policy, I should say, that the – that Brisbane City have produced, it’s looking at a two-storey threshold as a – as the – as the expectation that one would give there, and, significantly in my opinion, no attempt has been made to peel back the environmental protection zone that applies across most of those properties, in fact, all the properties that have access to Derby Street.”

  1. [38]
    Mr Buckley, not surprisingly and consistent with the visual amenity experts called, identified the side elevations of the proposal were not consistent with pre-1946 construction.[35]  However, as I have already identified, those side boundaries for all intents and purposes would hardly be noticeable to any person viewing the development from Derby Street other than perhaps when standing directly in front of those sides of the building.  Notwithstanding those concerns, Mr Buckley agreed with the visual amenity experts that the proposal insofar as it presented to the street was a reasonable attempt to try and provide a modern interpretation of “an old Queenslander” and indeed probably a better attempt than what had been achieved at 18A Derby Street.[36] On balance I consider that the proposed development will be in general accordance with the objects of the Performance Criteria by replacing a clearly non- pre-1946 form of building with one which, at least in its presentation to the street, will have a number of those architectural features.
  1. [39]
    For the reasons given, while there may be conflict with the “character” provisions of CP2000 (and indeed CP2014) those conflicts are minor in the scheme of things and would not be sufficient to warrant refusal of the proposed development. By presenting to the street in the way that it does and with its eastern, western and southern elevations largely hidden from view, the primary objects of the majority of the Performance Criteria are met. And, to the extent that there is any conflict with CP2000 and/or CP2014,[37] it is relatively minor and is outweighed by the “sufficient grounds” discussed below.

Bulk and Scale

  1. [40]
    As I have already identified insofar as the appellants are concerned, the issues of height, bulk and scale were the most critical to the outcome of this appeal.
  1. [41]
    Having regard to the location of the subject land and, more importantly, the Low-medium Density Residential designation given to part of the site, all of the town planners agreed that some form of unit development would have been an expected outcome. Indeed in this regard, Mr Buckley considered that a three to four unit development would be within reasonable expectations.[38]  In that part of his evidence, I took Mr Buckley’s reference to “their design approach” to be a reference to the design of the units stepping down from street level towards the river. 
  1. [42]
    Before going on to deal specifically with the issues raised under CP2000 and CP2014 it is appropriate that I deal with the evidence given by Mr Buckley in another appeal heard in this court involving a unit development at Donaldson Street, Greenslopes. This was a matter introduced by Mr Skoien during cross-examination. That appeal was heard by Judge Searles and is still to be published. Accordingly, I do not intend to make any findings which could be interpreted as going to the merits of that appeal. That said however, it is necessary to deal with certain aspects of Mr Buckley’s evidence in that appeal but only to the extent that it is relevant to his evidence in this appeal. That appeal involves the demolition of a large house to be replaced with a three level apartment block having a site coverage of in the order of 1.07: 1. Its maximum height would be about 9.5m above natural ground level and horizontally would present to the rear of three existing houses to the west and one large residential dwelling to the east.[39]  In that appeal Mr Buckley described what was proposed as being of a “house compatible scale”.  During cross-examination by Mr Skoien the following exchanges took place:[40] 

“Question: You said that you considered that that proposal was of a house compatible scale?

Answer:  I probably did, yes.

Question: You said it was not a house but it was a house compatible scale?

Answer: Yes.

Question: How, possibly, Mr Buckley, can you say that that proposal is a house compatible scale but the subject is not?

Answer: Well, a couple of things I need to make observation about the comparisons you’re making: the contexts are completely different here. The Donaldson Street, Greenslopes and its surrounding area has different opportunities afforded to it than the subject land. The subject land is a lot bigger in Donaldson Street, and indeed, as you know, the whole of it is zoned in the right zone. The expectations about yield, of course, are dictated by the area of the land. And as I think, and I can’t recall all the evidence, I gave in this case – in that particular case, but the likelihood of change of more units being developed here is high and the relationships, of course, between buildings over time will change. So quite clearly it’s quite different to a house, there’s no argument about that. But the likelihood of a particular yield in a particular form here is quite different to the subject land.

Question: Mr Buckley are you suggesting that there’s a difference between a house compatible scale at Greenslopes and a house compatible scale at Highgate Hill?

Answer: Because the context is different, yes.

Question: What’s the contextual difference between the scale of a house at Greenslopes compared to the scale of a house at Highgate Hill Mr Buckley?

Answer: The issues of scale deal with what you’re comparing to. That’s what scale is; it’s a comparison. So the context here is (indistinct) different to the context at Derby Street, Highgate Hill.

…

His Honour: But – sorry Mr Buckley I think at this stage Mr  Skoien’s not asking about context, its – he’s purely focussed on the reference to it being a house compatible scale.

Answer:  Yes.

…

Question: And you look at the houses that surround the subject site, as I understood Mr Skoien’s point was how could you say what was to be built there was a house compatible size?

Answer: Well size and scale are two different things your Honour. Scale is the issue of comparison and scale must introduce the notion of land use change and what is anticipated in the area. And the presentation to the street in Donaldson Street, I think I gave answers to that in that case – I don’t know if it’s been decided has it?

…

Mr Skoien: What I’m trying to understand is if we take – and, of course, in that case we were talking about a traditional character house. That was the compatible scale we were talking about, wasn’t it Mr Buckley?

Answer: I can’t recall to be honest. Yes.

Question: …If you’re suggesting that this building was compatible with that scale, you’d have to concede the compatibility of the subject with its surrounds?

Answer: I understand the point you are making and I understand these are both long buildings and the comparison between the house is almost the same. I get that point and I concede that. But issues of scale are all about comparisons and the comparison might be at a particular point in time, as you take me to this particular photo here, but in an area, which Donaldson Street is, where the unit developments because of their proximity to a bus – and they fit the criteria where a bus – where the extra height might be allowed and the extra intensity might be allowed, there are, under the new plan, there will be a different scale than what’s proposed on – particularly in the Derby Street end of the locality because that – the amount of land there on particular blocks that’s in that particular zone is appreciably smaller. You won’t get the same type (of) outcome.

…

Question: Now, what I’m suggesting to you, to be fair to you, Mr Buckley, is this: that if you’re of the view that that – that development which presents, in all directions as at least a three-storey development to adjoining development was something which could connect to a two-storey housing. The subject proposal, which has a presentation of two storeys to the street and then two to three storeys at all points as it proceeds down the slope is something which could only connect better to the detached house than that one?

Answer: I understand that point but…

Question: And you agree with it?

Answer: Yes. But with the qualification that I don’t think you can compare issues of scale as having some – some alignment between Greenslopes and this part of Highgate Hill. I do think that’s an important dimension to the consideration. And … and, on the point of expectations, there was no expectation that all of the land would be taken into account for the yield as proposed on the subject land.

Question: I understand that. You’re saying that in terms of any test under the LMR area or zone code or any similar tests in either the Neighbourhood Plan or the Local Plan or the Multiple Dwelling Code for consistency between the proposal and a traditional house scale or a detached house scale, your view is that you’d treat them differently depending on whether it’s at Greenslopes or whether at… Highgate Hill?

Answer: And it’s – and it’s – and it’s profound, because you – you straight away mentioned local plans. There are different provisions that apply in these areas and that’s – that’s why those context considerations are important.” (emphasis added)

  1. [43]
    With all due respect to Mr Buckley, who is a highly regarded and experienced town planner, I found his evidence on this issue to be somewhat confusing, and in some respects ill founded. While I can readily accept that reasonable expectations for that part of Greenslopes might differ from reasonable expectations in the relatively isolated pocket of Derby Street at Highgate Hill, those differences and expectations would be largely concerned with the density or level of intensity of development proposed. That is, having regard to the surrounding development at Greenslopes and its proximity to transport and other substantial services and amenities, a more intense form of development might be expected there than at Highgate Hill. However, I am unable to see how the expectation, as described by Mr Buckley, would have any meaningful bearing on whether or not a proposed development, while not a house, was nonetheless house compatible in a physical sense when compared to its surrounding dwellings.
  1. [44]
    Mr Buckley also proceeded erroneously on the basis that the intensity of what could be built on the subject site was in some way restricted or constrained because of the environmental area adjacent to the river.[41]  There is nothing in either the CP2000 or CP2014 that warrants such an approach. 
  1. [45]
    For the reasons set out below, when dealing with scale and bulk I have concluded that the subject proposal is not house compatible. I however express no opinion whatsoever about the use of that description in the Donaldson Street appeal. The size, design and age of the surrounding residences in that appeal appear to be quite different to the adjoining houses in this appeal.[42]
  1. [46]
    The Intent provision for the Low-medium Density Residential Area in CP2000 identifies that during the life of that plan the intensity of Low-medium Density development would require “strict adherence” to a maximum GFA of 50% or 60% if in close proximity to public transport or an arterial road. Mr Buckley pointed out in his report in the Donaldson Street appeal:[43]

“GFA was a relevant component of the Code under City Plan 2000.  Those provisions have been removed in City Plan 2014.  In certain zones, GFA has been replaced by density provisions.  Importantly though, such provisions do not apply to the subject land.  There has been a shift in the planning framework.  GFA no longer has any role to play in the assessment of a multi-unit dwelling proposal on the subject site.”

  1. [47]
    The strategic plan of CP2000 relevantly seeks to:

“Enhance social diversity, choice and accessibility through:

  1. (a)
    housing diversity and affordability – a wide range of housing types and tenures across the City to meet the affordability, life cycle and lifestyle needs of different households
  1. (b)
    integration – new development that integrates with existing development…”[44]
  1. [48]
    The intent provision for the Low-medium Density Residential Area relevantly provides:[45]

“The Low-medium Density Residential Area will contain a mix of houses up to two storeys and two and three storey multi-unit dwellings and single unit dwellings.  Land in this Area is located in those parts of the City that are close to public transport networks or centres.

During the life of this plan, a relatively small proportion of land in this area will be redeveloped for multi-unit residential.  New development must therefore be designed to co-exist comfortably with neighbouring houses.  This will be reflected in the intensity and scale of development and a strict adherence to a maximum gross floor area of 50% or 60% if in close proximity of public transport or on arterial roads.” (emphasis added)

  1. [49]
    While the subject land is approximately 460m away from a bus stop on Gladstone Road there was no suggestion that it was in “close proximity” to public transport and of course it is not located on an arterial road. Therefore, the relevant designated GFA is 50%. It is uncontroversial that while the expert witnesses proceeded on the basis that the GFA was in the order of 60% in reality, once lobby areas were taken into account it was, in reality, in the order of 70%.
  1. [50]
    Section 5.4.2 of CP2000 under the heading “Desired Environmental Outcomes” provides:[46]

“Low-medium density living environments comprise houses, among multi-unit and single unit development at a house compatible scale, predominantly of no more than two storeys.  Higher densities and three-storey buildings occur near Multi-Purpose Centres, near public transport and along arterial roads...”

  1. [51]
    It is also uncontroversial that the subject land is not near a Multi-Purpose Centre.
  1. [52]
    According to Mr Batty, the phrase “strict adherence” has been previously described as an “injunction” but that competing authorities exist on the point.[47]  The reference to an “injunction” is derived from the judgment in Szylkarski.  In that case Judge Robin QC relevantly said:[48]

“It will be noted that the statement of maximum GFA is accompanied by the injunction that there be ‘strict adherence’.  The planning expert engaged by the appellants Mr Buckley, set considerable store by this.  As against that, the other parties and their experts contend there is a flexibility introduced in the Intent for the Low-medium Density (LMD) Area by the reference to the alternative case admitting a 60% maximum (in the circumstances indicated as a new maximum also requiring strict adherence) and that strictness was not called for in applying the relevant codes…” (emphasis added)

  1. [53]
    In Hankamer & Ors v Brisbane City Council & Anor[49] Judge Searles relevantly said:

“I reject the argument that the reference in the Intent of City Plan in relation to Low Density Residential Area reflects an intention on the author’s part to impose an inflexible requirement that the GFA in relation to all multi-unit developments must be 30% or less. That would visit an inflexibility upon the interpretation of the Plan which is not warranted. City Plan must be read as a whole. As I have said, it is accepted that a Performance Criterion may be satisfied other than by compliance with the relevant Acceptable Solution. That is what has happened here.”

That passage was cited with apparent approval by Judge Dorney QC in Kangaroo Point Residents Association Inc v Brisbane City Council & Anor.[50]

  1. [54]
    While I agree entirely with Judge Searles’ observations that the so called injunction of strict adherence does not impose an inflexible requirement, nonetheless, some weight must be attributed to the use of the word “strict”, particularly where, in other parts of the CP2000 adherence is referred to but not “strict adherence”. Depending of course on all the circumstances of the case, conflict with a provision of a planning scheme requiring strict adherence might be more readily found than in the case where such adherence was not prescribed. In my view the introduction of the word “strict” requires an approach like that identified by Judge Rackemann in K Page Main Beach.  That is, departures from acceptable solutions will be subject to closer scrutiny.
  1. [55]
    The maximum GFAs identified in the intent provision for the Low-medium Density Residential Area are dealt with in Performance Criteria P1 and the Acceptable Solutions thereto.[51]

Performance Criteria

Acceptable Solutions

P1 Development size and bulk must be consistent with the low to medium density of the locality.

A1.1 Gross floor area is no more than

  • 0.5 times the site area

OR

…

A1.2 Building height at any point is no more than:

  • 8.5m above ground level and two storeys.

OR

…

A1.3 The site area is a minimum of 600m2 and has a minimum frontage of 17m.

…

  1. [56]
    As already canvassed neither CP2000 nor CP2014 require blind adherence to the prescribed Acceptable Solutions. However, also as already identified, the GFA is 70%, not 50%. In the joint report of the town planners, Mr Buckley for the appellants, Ms Morrissy for the Council and Mr Holt for Nextra, the GFA was presumed to be 60% of the site area.[52]  Ms Morrissy and Mr Holt considered that for various reasons which will be discussed below, notwithstanding that exceedance there was no real conflict with P1.  The fact that the GFA was in fact 70% did not cause them to alter their opinion in any way.  One of the major reasons for Ms Morrissy and Mr Holt maintaining their position was that the building overall was “consistent with the bulk and scale of the low to medium density of the locality…”[53]  However at page 20 of the joint report of the town planners Ms Morrissy stated:

“Whilst the proposal adopts a building height and GFA greater than the Acceptable Solution in City Plan 2000 in Ms Morrissy’s opinion, the proposal will not:

  • have an extremely adverse effect on the amenity of the locality or adjoining residences (by way of impacts on access to sunlight, breezes or privacy); and
  • be in extreme conflict with the character of the locality.” (emphasis added)
  1. [57]
    In re-examination by Mr Lyons, Ms Morrissy stated that it was her opinion that there was no conflict with CP2000 nor with CP2014.[54]  That opinion obviously does not sit well with the quote set out above.  In response to a question from me Ms Morrissy, while accepting that the proposed development would have a negative impact on character and residential amenity, considered that those impacts would not be significant and that she had not worded that paragraph “very well”.[55]  I am unable to accept that explanation.  It strikes me that it is more likely that those words were not the result of sloppy drafting but were intentionally directed towards s 1.7.4 of CP2014 which provides:

“Declaration for amenity and aesthetic impact referral agency assessment

For the purpose of Schedule 7, item 17 of the Regulation, building work for a building or structure which is a single detached class ……. is declared to:

  1. (a)
    have an extremely adverse effect on amenity or likely amenity of the locality; or
  1. (b)
    be in extreme conflict with the character of the locality.”[56] (emphasis added)
  1. [58]
    I should point out immediately that I do not consider that Ms Morrissy was trying to mislead the court in any way whatsoever. It seems far more likely that she simply became confused when confronted with this apparent contradiction during cross-examination. However, her evidence is relevant in that she recognised that the proposed development will indeed have some negative impacts on both amenity and character within the locality. That of course does not mean there is conflict with the Planning Scheme.
  1. [59]
    As already mentioned, Mr Holt was of the opinion that the GFA was consistent with the bulk and scale of the low to medium density of the locality.[57]  His opinion did not change (as was also the case with Ms Morrissy) once it was pointed out that the GFA was in fact 0.7 times the site area.  It seems very likely that the opinions of Mr Holt and Ms Morrissy, in this regard, were to a significant extent influenced by the opinions given about the proposed development by the visual amenity experts, Mr McGowan and Mr Burton.  In their joint report they agreed:[58]

“The experts agree that the proposal (having a GFA of 60%, a building height which exceeds 8.5m and two storeys, and a frontage of 15.1m), does not satisfy either Acceptable Solution A1.1, A1.2 or A1.3.

However, the experts note that, although the GFA exceeds the 50% Acceptable Solution, much of the gross floor area of the proposal is below the natural ground level (i.e. is underground).  Figure 11 shows that 309m2 of the 620m2gross floor area is below the natural ground level.  This building area is cut into the existing topography and does not contribute greatly if at all to the building’s perceived bulk.

…

The experts also note that the nature of the site dictates that the building form is terraced.  This terracing results in some parts of the proposal being three storeys, but the part which presents to the street is clearly two storeys (refer to figure 12).  Because the site falls away from the street and because views to the site from other locations are limited, the parts of the proposal that read as three storeys will not be highly visible (it is likely they would only be visible to neighbouring residents where vegetation does not obstruct views to the proposal).”

  1. [60]
    That theme was repeated in the court report prepared by Mr Burton.[59]  For the reasons given by the visual amenity experts I am readily able to accept that careful consideration has been given to reduce the visual impact of the size and bulk of the proposed development.  I also accept that the cascading or stepped design of the proposal[60] and the proposed and existing landscaping will materially reduce the visual impact of the proposal, particularly to its adjoining neighbours. However, I am unable to accept that there is no genuine conflict with P1 in circumstances where the GFA is 0.7 times the site area.  An increase from 0.6 to 0.7 is of course only an increase of about 12% but it is an increase of 40% above the Acceptable Solution identified in A1.1.  In a performance based planning scheme, even a discrepancy of that magnitude would not necessarily cause conflict.  However, in the circumstances of this case I have concluded that it does.
  1. [61]
    Reading the relevant provisions of CP2000 as a whole it is tolerably clear that the GFA restriction of 0.5 times the site area while not intended to be blindly adopted, was one of the benchmarks or yardsticks designed to achieve, as far as is practicable, the overall outcomes and objects of the scheme. For example, that low to medium density living environments comprise houses, among multi-unit and single unit development at a house compatible scale predominantly of no more than two-storeys.[61]  In this context the Residential Design – Low Density, Character and Low-medium Density Code relevantly provides under the heading “purpose”:[62] that the areas to which the Code applies will contain a mix of houses and multi-unit development, the purpose of this Code is to effectively manage impacts of the new development on neighbours[63] while:

“• ensuring new development is compatible in scale and design with neighbouring houses.

• retaining pre-1946 dwellings in Character Residential Areas, with new development at low intensity…” (emphasis added)

  1. [62]
    While CP2014 no longer, at least insofar as is relevant to this appeal, includes a GFA criteria, it nonetheless deals with issues of bulk, height and scale and its impact on the surrounding neighbourhood. For example under the Low-medium Density Residential Zone Code 2014 it relevantly provides:[64]

“(5) Development form overall outcomes are:

(a) development for a residential building is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Low-medium Density Residential Zone and the relevant zone precinct

(b) development provides for a building to have a building height and bulk that responds to:

   (i) the nature of adjoining dwellings

(ii) site characteristics, including the shape, frontage, size, orientation, slope and nature of adjoining dwellings…” (emphasis added)

  1. [63]
    The overall outcomes for the Low-medium Density Residential Zone Code 2014 also provides that:[65]

“Development for a residential use other than a dwelling house is of a scale and bulk that co-exists comfortably with an adjoining dwelling house, even though it might have a bulk and scale greater than a dwelling house.”

  1. [64]
    Performance Outcome 5 of the Multiple Dwelling Code 2014 also provides that:[66]

“Development is of a bulk and scale that is consistent with the intended form and character of the local living area having regard to:

(a) existing buildings that are to be retained…

…

(c) existing and proposed building heights…

(d) adjoining buildings…”

  1. [65]
    Mr Burton during his cross-examination accepted that, apart from the flats located under Mr Ferrarin’s house, the subject proposal would be the first multi-unit development in the street and, more significantly, accepted that the length of the building running down the site was not compatible with the adjoining character houses.
  1. [66]
    The difference in the bulk and scale of the proposed development and its neighbouring properties were depicted by Mr Buckley in Exhibit 25. When taken to those documents Mr McGowan also conceded that, by reference to the side elevations of the adjoining dwellings, the proposed development was about two and a half to three times “bigger” and overall would be substantially larger.[67]
  1. [67]
    While rejecting Mr Buckley’s evidence to the effect that the multiple zoning of the site in some way contributed or caused a more intense form of development to occur or, to use his words, to “prop up the intensity of development on the site”,[68]  I do accept his evidence, which in part was supported by Messrs McGowan and Burton, to the effect that, notwithstanding the attempt to minimise the impact through the use of cut and landscaping,[69] that the GFA is such as to result in a non-house compatible scale and would not co-exist comfortably with neighbouring houses.  To adopt the language used in P1 its size and bulk is not consistent with the low to medium density of the locality. 
  1. [68]
    For the above reasons I find that the proposal is in conflict with the above mentioned provisions of CP2000 and CP2014 dealing with height, bulk and scale within the relevant location.
  1. [69]
    During oral submissions Mr Skoien, as I understood it, agreed that relevant to this appeal, save for the changes to height (8.5m in CP2000 to 9.5m in CP2014) and the deletion of the GFA criterion in CP2014, not much turned on the introduction of the new planning scheme.[70]  I agree but would note that neither of those changes affect the findings that I have made concerning bulk and scale.
  1. [70]
    Mr Lyons, on behalf of the Council, when dealing with the size and the bulk of the proposed development relied on Ms Morrissy’s assessment of the “locality”:[71]

“The size and bulk of the proposed development is consistent with the low to medium density of the locality as:

(a) the Low-Medium Density Area (or zone) is intended to accommodate low-medium rise density developments, including multiple dwellings;

(b) the locality contains a mix of houses and multiple dwellings;

(c) the form of residential development in the locality varies in age, size/scale and style (meaning there is a mix of traditional and contemporary designs, and there are two storey and three storey buildings in the locality, as well as a three-four storey building (at 133-135 Gladstone Road), a five storey building (at 23 Beaconsfield Street) and an eight storey building (at 11 Beaconsfield Street). Therefore, the local area is characterised by a mix of building heights.

(d) the variety of styles and design of multiple dwellings in the locality reflect varied ages of the buildings. There are multiple dwellings in the locality in the form of:

  • Low-rise (same as house scale) town houses
  • Low-medium rise apartment complexes; and
  • Medium to high rise residential towers

Accordingly, development size and bulk is also varied…” (emphasis added)

  1. [71]
    Ms Morrissy, with respect, has introduced extraneous considerations into her assessment of the proposed development within its locality. What has occurred along the major thoroughfare of Gladstone Road, which is an arterial road, and/or Beaconsfield Street, which runs directly west from Gladstone Road, carries little weight. To introduce development of that scale fails to recognise the true nature of the locality of the subject site as set out in paragraph 5 above, and certainly fails to give sufficient weight to the agreed assessment by all the town planners that Derby Street was situated in “a contained neighbourhood, almost an enclave”.[72] 
  1. [72]
    Before leaving this topic I should also deal with other matters raised on behalf of the appellants first concerning setbacks and shadowing. Having regard to the evidence of the town planners and visual amenity experts, called on behalf of the Council and Nextra I do not consider that these matters raise any serious conflict with either CP2000 or CP2014. Consistent with more recent development on the narrower blocks in Derby Street the side boundary setbacks are narrow and, while the setback from the street is materially less than that of all of the houses to the east, it is not inconsistent with the setback of the larger residential development to the west situated on 28 Derby Street. As to the issue of shadowing, as I understand it, the only evidence on this point is that the proposed development would only impact on Mr Cowen’s property on 20 Derby Street and would have only relatively minor impacts overall.[73] 

Sufficient grounds

  1. [73]
    While the conflicts concerning character, bulk and scale could not be described as trivial or technical in nature they are not so significant as to warrant refusal in the circumstances of this case. In my opinion there are sufficient grounds to warrant approval notwithstanding that conflict. In Weightman v Gold Coast City Council & Anor[74] Atkinson J relevantly stated:

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by… the decision maker should:

  1. examine the nature and extent of the conflict;
  1. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  1. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
  1. [74]
    The approach of Atkinson J in Weightman was referred to with approval by the Court of Appeal in Lockyer Valley Regional Council v Westlink Pty Ltd (No.3)[75] Holmes JA (with White JA and Atkinson J agreeing):

“The Council here reiterated its argument that that was wrong: grounds relating directly to the conflict (those with which the second step described by Atkinson J were concerned) must carry greater weight than the more general grounds described in the third step.  In the present case, it was submitted, the grounds in favour of development all fell within the third step.  The primary judge had erred in failing to recognise the distinction between the weight to be attributed to grounds in the different steps and in regarding Westlink’s grounds, which fell within step three, as sufficient. 

The Council’s attempt at construing Weightman so as to add another layer of explication to Atkinson J’s explanation of the section (in its earlier form) should be rejected.  There is no warrant in s 3.5.14(2)(b) itself for applying different weight to different grounds.  To do so would be to impose an entirely artificial set of fetters on the decision-making required.  The importance of the ground must depend on what it is, not where it falls in the three-step approach in Weightman.”

  1. [75]
    “Grounds” means for the purpose of this appeal “…matters of public interest” and does not include the personal circumstances of the applicant.[76]
  1. [76]
    Mr Holt made no meaningful attempt to identify any specific ground warranting approval despite conflict on the basis of his firm opinion that the proposal complied with CP2000.[77]  Ms Morrissy, on the other hand, did identify a number of grounds which she considered, when taken as a whole, would warrant approval despite any conflict.  Those grounds were:[78]

“(i) the proposed development will enhance housing choice, diversity and affordability and provides for housing in an area well located near public transport, accessible to the CBD and a range of centre activities and community facilities;

  1. (ii)
    the proposed development maximises the efficient use of land and existing infrastructure including the efficient use of public transport infrastructure;
  1. (iii)
    the proposed building form and design of the development in terms of size, bulk and height is consistent with existing low and low-medium density housing in the area;
  1. (iv)
    the proposed building design and height will not interrupt the rhythm of building heights in the street. The proposed building will sit comfortably in Derby Street, present a high quality façade to the street and is consistent with the existing and envisaged building heights in the locality;
  1. (v)
    the proposed development will not result in any significant adverse impacts on residential amenity of future residents or existing neighbouring residents, by way of overshadowing, access to daylight, sunlight, breezes and privacy issues;
  1. (vi)
    the proposed development provides a design response that is consistent with the reasonable amenity expectations for development in the low-medium density residential environment;
  1. (vii)
    on balance and in reading both planning schemes as a whole, the proposed development is considered to achieve the intended outcomes sought for the low-medium density residential area and zone.”
  1. [77]
    In response Mr Buckley said:[79]

“…the nature of the conflict goes to the heart of site planning, design and expectations in the Low-medium Density Residential Area and Zone.  The grounds relating to the provision of housing are those which apply to a complying development proposal.

It is necessary, in my opinion therefore to identify grounds that support the extra height, GFA, excessive site cover and reduced separation.

It is difficult to identify any ground that applies to these considerations directly that would otherwise apply to a complying development.”

  1. [78]
    Of course a multi-unit development that complied in every respect with the town plan would also be likely to satisfy the grounds identified by Ms Morrissy. However, that is not the exercise contemplated in Weightman.  The issue to be determined is whether, despite the conflict concerning bulk and scale, the proposal ought be approved because, on balance, the conflict is outweighed by other relevant positive planning grounds. 
  1. [79]
    In this exercise, as identified by Atkinson J in Weightman, it is necessary to examine the “nature and extent of the conflict”. The conflict here is predominantly the negative visual impact resulting from the bulk and scale of the proposed development. It is significant in this balancing exercise that, as identified above, the negative impacts are largely limited to the side views from the neighbouring properties at 20 and 28, and perhaps at 18 Derby Street.[80] The orientation of the three dwellings on the other side of Derby Street would suggest their views of the proposal would be very limited[81] but there is no probative evidence about that. In any event the point is that the negative visual impacts associated with bulk and scale are materially contained to a very few of the residents within the study area.
  1. [80]
    Turning then to each of those grounds identified by Ms Morrissy I agree that the proposed development would enhance housing choice, diversity and affordability in an area which is well located near public transport (the bus stop on Gladstone Road some 460m away) and is accessible to the CBD and community facilities. It is true that the nearest shopping centre is a low level centre, nonetheless it provides convenience and, in any event the subject site is in relatively close proximity to larger concentrations of services and amenities. I also agree that the proposed development tends to maximise efficient use of the land and existing infrastructure. I also accept that with the exception of the visual amenity impacts caused by the bulk and scale of the proposed development to its immediate neighbours to the east and west, the proposed development would otherwise have no material negative impacts on amenity to other residents in Derby Street and/or the study area adopted by the expert witnesses. I also accept that, having regard to more recent development in the vicinity, particularly in Rosecliffe Street and Derby Street to the east of Mr Cowen’s property, the proposed development would sit relatively comfortably within its surrounding urban location.
  1. [81]
    The three large modern residential developments to the east of Mr Cowen’s property reflect a significant change to the built environment in the street.  Not only are they more modern in design and construction but also have a materially larger site footprint including reduced setbacks from side boundaries. 
  1. [82]
    Also, notwithstanding the conflicts with the planning schemes to which I have referred, having regard to the scale and design of the building and particularly the way it presents to Derby Street, I consider the proposed development would be within the reasonable expectations of people living in the vicinity. In this context, reasonable expectations involve informed consideration of the relevant planning provisions affecting the land and a reasonable expectation based on those provisions.[82]  It is my view that the appropriately informed reasonable person could reasonably expect a development generally of the type proposed in this location, having regard to its low-medium density designation/zoning over part of the site.
  1. [83]
    On the topic of “expectations” I am aware that 46 submissions were made concerning the proposed development. The evidence strongly indicates that the main concerns raised in those submissions were about building height, consistency with the surrounding development, including the failure to adequately contribute to the traditional character of the area, impacts on streetscape and impacts on views from surrounding properties. Each of those matters, save for the issue of views, have been dealt with above. In respect of views, no evidence was led suggesting that the proposed development would have any material adverse impacts on views save for the complaints from the adjoining owners about the “unsightly” side elevations of the proposed development. Of the 46 original submitters only six provided statements to the court. They included Mr Ferrarin at 28 Derby Street and Mr Cowen at 20 Derby Street. As best as I can ascertain the other four lay witnesses were all tenants of Mr Ferrarin’s flats. While I accept that many of the concerns they expressed were genuinely held, for the reasons set out above, I consider them to be largely unwarranted.[83]
  1. [84]
    In addition to those grounds identified by Ms Morrissy, I would also add that the development is located in close proximity to a number of major employment centres including the Brisbane CBD, the Princess Alexandra Hospital and the Lady Cilento Children’s Hospital.  Proximity to shopping facilities, transport and employment opportunities were accepted by Mr Buckley to be relevant considerations but involved questions of degree.[84]
  1. [85]
    Finally on this topic, while by no means a decisive factor, the unreserved support for the proposal by the Council, as the relevant local authority, is a matter I have taken into account. To adopt the words of Stephen J in Scurr v Brisbane City Council,[85] a court such as this “would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority”.[86]  
  1. [86]
    More recently, in Mackay Shopping Centres Pty Ltd v Mackay Regional Council,[87] Judge Robin QC relevantly said:

“Although this appeal is a rehearing, in which the co-respondent must establish before the court a case for approval of its proposal (i.e. that the appeal should be dismissed), uninfluenced by the Council’s favourable determination, the Council is the planning authority, and its persistence in advocating strongly for the proposal in the appeal is a factor the court is entitled to take some notice of in line with certain judicial utterances …, as might have been strong Council opposition. A developer with council support would usually be in a better situation. Of course, what counts in the end is the persuasiveness of the council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears. I reject the veiled suggestion by the appellant that the council’s decision under appeal being a ‘delegated decision’ in some way deprives it of whatever weight it might otherwise have, and that the delegate erred in approving because the proposal cut across the draft scheme, of which the council is the proponent. Its endorsement of the decision could hardly have been any more enthusiastic.”

  1. [87]
    The support for the sufficient grounds contended for by Ms Morrissy, in the event that there was conflict with the planning scheme, adds in my view some further weight to her evidence in the topic.  But as I have already indicated it is not a decisive factor. 
  1. [88]
    For the reasons given I have concluded that the proposed development achieves an appropriate balance between the objects and outcomes prescribed in the Performance Criteria addressed above and the type of development contemplated by the land’s location in an LMR area under CP2000 and zone under CP2014.[88]

Conclusions

  1. [89]
    For the reasons set out above, while I have concluded that the proposal is in conflict with some performance criteria and objects of the CP2000 and CP2014 concerned with character, scale and bulk, I consider that there are sufficient planning grounds to justify approval despite the conflict.
  1. [90]
    Accordingly, the orders of the Court will be:
  1. The appeal is dismissed.
  1. The matter is adjourned to 2 November 2015, on which date the parties are to seek final orders on an agreed set of conditions.
  1. On 2 November 2015 the parties are to advise the court of their position as to costs.  

Footnotes

[1]  Ibid, p 5.

[2]  No one contended otherwise and, in addition to the development application being one lodged under CP2000, it is tolerably clear that the co-respondent and the respondent Council proceeded on the basis of it being dealt with under that planning scheme. For example see Exhibit 2, pp 197-214.

[3]  Exhibit 2, p 227-229 (conditions 19, 20 and 21).

[4]  Exhibit 3, pp 10-13.

[5]  Ibid, p 14.

[6]  Exhibit 9, p 12, para 22.

[7]  Ibid, pp 9 and 13.

[8]  T1-20 – T1-21.

[9] Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273 at [23].

[10]  Exhibit 1.

[11]  At paras 62, 63, 64 and 65.

[12]  T1-74 L4-8.

[13]  T1-72.

[14]  T1-73 L15-23.

[15]  T1-74 L14-23.

[16]  Exhibit 10, p 4.

[17]  Written submissions pp 29-34.

[18]  Exhibit 9, pp 22-25.

[19]  At paras 134-135.

[20]  (2013) QPELR 205 at [26].

[21]  Exhibit 11, p 25, paras 6.3.10 and 6.3.11.

[22]  Paras 150, 151 and 152.

[23]  Exhibit 3, pp 4 and 9.

[24]  Exhibit 9, p 14, para 26.

[25]  Exhibit 18, pp 65-76.

[26]  Exhibit 2, pp 227-230.

[27]  Exhibit 9, p 23 at paras 62, 63 and 64.

[28]  At paras [15] and [38].

[29]  At para 147.

[30] Stockland Development v Townsville City Council & Ors (2013) 195 LGERA 317 at [25]-[26]: see also Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337 at [18]. Also, Zappala Family Co. Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82 at [56].

[31]  (2007) QPELR 24 at [47]-[48].

[32]  [2011] QPEC 1 at [26]-[27].

[33]  T3-3 L43-50, T3-4 L1-3.

[34]  T3-6 L23-42: See also at T3-7 L1-7.

[35]  T 3-5 L15-20.

[36]  T3-26 L28-46.

[37]  P6 concerning elements, materials and bulk.

[38]  T3-22 L32-41. 

[39]  See Exhibit 34.

[40]  T3-37 L33-47, T3-38, T3-39 and T3-40.

[41]  Exhibit 17, pp 3-4.

[42]  Exhibit 34.

[43]  Exhibit 36, p 4, para 22.

[44]  Exhibit 8, p 10, ch 2, s 3.2.2.1(a) and (b).

[45]  Ibid p 46, ch 3, p 52, s 5.4.1.

[46]  Exhibit 8, p 46, ch 3, s 5.4.2(1).

[47]  Written submissions para 73.

[48]  At [11].

[49]  (2013) QPELR 800 at [116].

[50]  [2014] QPEC 64 at [113].

[51]  Exhibit 8, p 106, ch 5, Residential Design – Low Density, Character and Low-medium Density Code, s 4.3.

[52]  Exhibit 11, p 8.

[53]  Exhibit 11, p 16, para 6.2.3 per Mr Holt and p 19, para 6.2.30(ii) per Ms Morrissy.

[54]  T2-77 L7-15.

[55]  T2-76 L25-29.

[56]  Exhibit 8, p 141-142 and T2-77.

[57]  Exhibit 11, p 16, para 6.2.3.

[58]  Exhibit 9, pp 12 and 13.

[59]  Exhibit 12, p 11.

[60]  Exhibit 3, p 13, paras 21, 22 and 24.

[61]  Exhibit 8, p 46, s 5.4.2.

[62]  Ibid, p 104.

[63]  In this regard “neighbouring” should not be read down to mean “adjacent to” or “adjoining”.

[64]  Exhibit 8, p 205.

[65]  Ibid, p 206: (7)(c).

[66]  Ibid, pp 235-236.

[67]  T2-40 L5-16.

[68]  Exhibit 17, pp 3-4. 

[69]  Exhibit 3, p 13 and Exhibit 24.

[70]  T4-29 L31-45 – T4-30 L1-20.

[71]  Mr Lyons’ written submissions, para 89 and Exhibit 11, p 19, para 6.2.30(ii).

[72]  Refer to agreed description of the locality set out in paragraph 5 herein: Also T3-8 L41-46.

[73]  Exhibit 12, p 9.

[74]  [2003] 2 Qd R 441 at [36].

[75]  (2012) 191 LGERA 452 at [18] to [21].

[76]  SPA, Schedule 3.

[77]  T2-52 L1-33.

[78]  Exhibit 11, p 33, para 7.1.2.

[79]  Exhibit 11, p 34

[80]  Exhibit 3, p 9.

[81]  Ibid, pp 3-4.

[82]  See Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342 at 343-349; Baptist Union of Queensland v Brisbane City Council & Anor (2003) QPELR 61 at 79.

[83]  In no particular order the primary concerns of the laywitnesses were traffic and on street parking, street character, shadowing and restriction of breezes height, bulk and scale and “aspect”.

[84]  T3-46 L25-45, T3-47-T3-48: see also Exhibit 36, p 6.

[85]  (1973) 133 CLR 242.

[86]  At 257.

[87]  [2013] QPELR 661 at [44]: see also Friend v Brisbane City Council [2014] QPELR 24 at 50.

[88] Zappala Family Co. Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82 at [56]: Australian Capital Holding Pty Ltd v Mackay City Council [2008] QCA 157 at [54] – [57].

Close

Editorial Notes

  • Published Case Name:

    Cowen & Anor v Brisbane City Council & Anor

  • Shortened Case Name:

    Cowen v Brisbane City Council

  • MNC:

    [2015] QPEC 50

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    19 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
Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342
2 citations
Jump To
Cite 1 - (2008) QPELR 342
Cite 2 - (2008) QPELR 342
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
1 citation
Jump To
Cite 1 - [2008] QCA 157
Baptist Union of Queensland v Brisbane City Council (2003) QPELR 61
2 citations
Jump To
Cite 1 - (2003) QPELR 61
Cite 2 - (2003) QPELR 61
Friend v Brisbane City Council [2014] QPELR 24
1 citation
Jump To
Cite 1 - [2014] QPELR 24
Hankamer & Ors v Brisbane City Council & Anor (2013) QPELR 800
2 citations
Jump To
Cite 1 - (2013) QPELR 800
Cite 2 - (2013) QPELR 800
K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPEC 1
2 citations
Jump To
Cite 1 - [2011] QPEC 1
Cite 2 - [2011] QPEC 1
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64
2 citations
Jump To
Cite 1 - [2014] QPEC 64
Cite 2 - [2014] QPEC 64
Lockyer Valley Regional Council v Westlink Pty Ltd (No 3) (2012) 191 LGERA 452
2 citations
Jump To
Cite 1 - (2012) 191 LGERA 452
Cite 2 - (2012) 191 LGERA 452
Mackay Shopping Centre Pty Ltd v Mackay Regional Council (2013) QPELR 661
2 citations
Jump To
Cite 1 - (2013) QPELR 661
Cite 2 - (2013) QPELR 661
Scurr v Brisbane City Council (1973) 133 C.L.R 242
3 citations
Jump To
Cite 1 - (1973) 133 C.L.R 242
Cite 2 - (1973) 133 C.L.R 242
Cite 3 - (1973) 133 C.L.R 242
SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24
2 citations
Jump To
Cite 1 - (2007) QPELR 24
Cite 2 - (2007) QPELR 24
Stockland Development Pty Ltd v Townsville City Council & Ors (2013) 195 LGERA 317
2 citations
Jump To
Cite 1 - (2013) 195 LGERA 317
Cite 2 - (2013) 195 LGERA 317
Szylkarski & Ors v Brisbane City Council & Anor (2013) QPELR 205
2 citations
Jump To
Cite 1 - (2013) QPELR 205
Cite 2 - (2013) QPELR 205
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 441
Cite 2 - [2003] 2 Qd R 441
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337
2 citations
Jump To
Cite 1 - (2004) QPELR 337
Cite 2 - (2004) QPELR 337
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 273
Cite 2 - [2006] 1 Qd R 273
Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
3 citations
Jump To
Cite 1 - (2014) 201 LGERA 82
Cite 2 - (2014) 201 LGERA 82
Cite 3 - (2014) 201 LGERA 82

Cases Citing

Case NameFull CitationFrequency
Sandstrom v Sunshine Coast Regional Council & Windansea Boardriders Club [2020] QPEC 622 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.