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De Marco v Brisbane City Council[2015] QPEC 55

De Marco v Brisbane City Council[2015] QPEC 55

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

De Marco v Brisbane City Council & Ors [2015] QPEC 55

PARTIES:

ROBERT DE MARCO

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

and

STEWART LEWIS & ORS

(Co-Respondents)

FILE NO/S:

4310 of 2014

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland

DELIVERED ON:

13 November 2015

DELIVERED AT:

Brisbane

HEARING DATES:

21-23 September 2015

JUDGE:

Searles DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

PLANNING – RESIDENTIAL DEVELOPMENT – RECONFIGURATION OF LOTS – BUILDING WORKS – PARTIAL DEMOLITION - CONFLICT – Proposal involves subdividing two lots into three lots, building works for two single unit dwellings, and a partial demolition of a house – Whether proposal conflicts with planning scheme.

Brisbane City Plan 2000

Brisbane City Plan 2014

Sustainable Planning Act 2009 (Qld) ss 314, 324, 326, 495

Maher v Hervey Bay City Council [2007] QPELR 123

Singh v Beaudesert Shire Council [2004] QPELR 16

COUNSEL:

S Fynes-Clinton for the Appellant

M Williamson for the Respondent

No appearance for the Co-Respondents

SOLICITORS:

Milne Legal for the Appellant

Brisbane City Legal Practice for the Respondent

Contents

Appeal3

Surrounding Locality4

City Plan 2000 Designation5

City Plan 20145

Proposed Development6

Minor Change7

Issues in Dispute7

Statutory Assessment Regime8

Submitters8

Planning Evidence8

Agreed Relevant Provisions of City Plan 20008

Council’s Concerns Re: City Plan 20009

 Residential Design – Single Unit Dwelling – City Plan 20009

 DEO4 of the Residential Areas – City Plan 20009

 DEO5 of the Residential Areas of City Plan 200011

 The Purpose of the Residential Design – Single Unit Dwelling Code – City Plan 200012

 Residential Design – Single Unit Dwelling Code12

 Purpose of the Residential Design – Character Code13

Council Concerns Re: City Plan 2014 13

 City Plan 2014 – Character Residential Zone13

 City Plan 2014 – Traditional Building Character (Design) Overlay Code15

Appellant’s Response to Council Concerns15

Residential Design – Single Unit Dwelling Code15

DEO4 of the Residential Areas – City Plan 200016

Individual Report of Mr Harvey 15 September 201517

Shadowing21

Boundary Setbacks21

Dwelling House Density22

Traffic Evidence22

Council’s Submissions23

Conflicts with City Plan 2000 23

Compatibility with Character of Charlton Street25

Mr Harvey’s Evidence27

City Plan 201429

Appellant’s Arguments31

Compliance with Residential Design – Character Code – City Plan 200031

Performance Criterion P532

Performance Criterion P235

Stepping Rooflines in a Sloping Street36

Residential Design – Single Unit Dwelling Code39

Consequences of 3 Storeys40

Exceedance of Overall Dwelling Density42

Performance Criterion P443 

City Plan 201443

The Appellant’s Summary of Arguments Re: City Plan 201445

Conflict with City Plan 200046

Discussion47

City Plan 201448

Grounds to Justify Approval notwithstanding Conflict with City Plan 200048

Decision49

Schedule A - Relevant extracts of City Plan 200050

Schedule B - Relevant extracts of City Plan 201454

Appeal

  1. [1]
    This is an appeal filed 3 November 2014 against the decision of the Council, contained in Decision Notice dated 22 October 2014, refusing the Appellant’s development application for a development permit for the reconfiguration of a lot, namely two lots into three lots, two single unit dwellings and partial demolition of a house in a demolition control precinct. The site is described as Lots 173 and 174 on RP33684 situated at 31 Beatrice Terrace Ascot (Site).

Surrounding Locality[1]

  1. [2]
    The Site contains a 2 storey house and is located on the corner of Beatrice Terrace and Charlton Street, Ascot, Brisbane with frontages to both. Vehicular access is gained from two existing cross overs in each of those streets.
  1. [3]
    The Site immediately adjoins existing 2 storey dwelling houses along its eastern and southern boundaries, with land to the north and west of the Site on the opposite sides of Beatrice Terrace and Charlton Street also containing 2 storey dwelling houses. The majority of dwelling houses in the locality are 2 storeys in height. There are seven multiple units and one dwelling house located in Charlton Street that have 3 storeys or greater in height. The multiple units are located at:
  • 219 Lancaster Street – corner of Lancaster and Charlton Streets;
  • 84 Charlton Street;
  • 82 Charlton Street;
  • 33 Charlton Street;
  • 142 Windermere Road – corner of Charlton Street and Windermere Road;
  • 14 Charlton Street; and
  • 2 Charlton Street.

The house referred to is at 38 Charlton Street.

  1. [4]
    Land some 20 metres to the east of the Site and along Racecourse Road is primarily developed for centre activities and multiple dwellings, and is included in the District Centre Zone and Racecourse Precinct Neighbourhood Plan. Land to the east of the Site and along Racecourse Road immediately adjoins the eastern boundaries of 35 Beatrice Terrace and 33 to 53 Charlton Street, being located in the 3 and 4 storey height precinct NPP–001 of the Racecourse Precinct Neighbourhood Plan in both Brisbane Plan 2000 and Brisbane City Plan 2014.
  1. [5]
    The Site is within 90 metres walking distance of buses on Racecourse Road, 320 metres walking distance to the bus services on Lancaster Road, 450 metres walking distance to the Ascot Railway Station, 720 metres walking distance to the bus services on Nudgee Road, 870 metres walking distance to the ferry service located at Bretts Wharf Terminal, and 880 metres walking distance to buses on Kingsford Smith Drive.

City Plan 2000 Designation

  1. [6]
    Under the previous City Plan 2000, the Site was included in the Character Residential Area, as was all land immediately adjoining it, and was also included in the Demolition Control Precinct.

City Plan 2014

  1. [7]
    City Plan 2014 came into effect on 30 June 2014, some 19 days after the lodging of the subject application and some three and a half months prior to the Council decision on 22 October 2014.
  1. [8]
    Under City Plan 2014, the Site was included in the Infill Precinct of the Character Residential Zone, as do all sites immediately adjoining the Site. It was also included in the Neighbourhood Character Sub-category of the Traditional Building Character Overlay.

Proposed Development

  1. [9]
    The proposal seeks:-[2]
  1. (a)
    Development Permit for Reconfiguration of a Lot, namely two into three Lots;
  1. (b)
    Development Permit for a Material Change of Use and Preliminary Approval to Carry Out Building Works for single unit dwellings (two dwellings);
  1. (c)
    Preliminary Approval to Carry Out Building Works for demolition (partial demolition) of a house in a Demolition Control Precinct; and
  1. (d)
    Preliminary Approval to Carry Out Building Works for extensions to a house in the Demolition Control Precinct.
  1. [10]
    The proposal includes:-
  1. (a)
    subdividing the two lots into three lots;
  1. (b)
    demolishing the post 1946 extensions to rear of the existing pre 1946 dwelling house;
  1. (c)
    relocating the existing two storey dwelling house onto one lot, undertaking renovations to the existing dwelling house and constructing a double carport on the boundary at the Beatrice Street frontage;
  1. (d)
    the existing pre-1946 house is designed to contain three storeys with the third storey being contained within the existing roof space;
  1. (e)
    constructing two by three storey single unit dwellings.  Unit one has a gross floor area of 170m² and unit two has a gross floor area of 120m².  Both units incorporate three bedrooms, double garage, lift, kitchen, dining, living areas and bathrooms.  Vehicular access to each unit is proposed from Charlton Street;
  1. (f)
    unit one is designed to have a building footprint of 43% of proposed area for lot two;
  1. (g)
    unit two is designed to have a building footprint of 50% of proposed area for lot three.

Minor Change

  1. [11]
    On 24 June 2015 this Court approved a change in the plans, finding changes to be minor so that the plans now to be considered are those in Exhibit 1, tab 11.

Issues in Dispute

  1. [12]
    The town planning experts, Mr Harvey (Appellant) and Ms Blyth (Council), summarised the planning issues in dispute in their joint report of 19 August 2015[3] as principally relating to:-
  1. (a)
    the height of the single unit dwellings being 3 storeys in height;
  1. (b)
    the scale not complementing the low-density and traditional character scale of the dwelling housing in Charlton Street and the local residential area; and
  1. (c)
    the bulk and height of the proposed Single Unit Developments (SUDs) potentially casting larger shadows than reasonably expected and the possibility of that impacting on access to daylight, sunlight and breezes to the adjoining dwellings.

Apart from the above, there were also traffic issues raised by Council.

Statutory Assessment Regime

  1. [13]
    The development application is impact assessable under the Sustainable Planning Act 2009 (SPA) ss 314(2) and 314(3) and is to be decided in accordance with ss 324 and 326.  The Appellant bears the onus of establishing the approval should be granted.  The appeal is by way of hearing anew under s 495, and in any decision, must not conflict with the Planning Scheme (s 326).  The appeal must be decided in accordance with City Plan 2000, which applied when the application was made, but weight may be given to City Plan 2014 if considered appropriate as per s 495(2)(a).  Given the timeline on the filing of the development application, the introduction of City Plan 2014, and Council’s decision, I agree with the parties that it is appropriate to consider that current plan.

Submitters

  1. [14]
    There were 18 properly made submissions received by Council, raising a variety of issues, which are summarised in the joint planning report.[4]

Planning Evidence

  1. [15]
    Mr Harvey and Ms Blyth produced a joint report dated 19 August 2015. In addition, Mr Harvey produced an individual report of 15 September 2015[5] addressing matters of concern raised by Ms Blyth. 

Agreed Relevant Provisions of City Plan 2000

  1. [16]
    The relevant provisions of City Plan 2000 are contained in Annexure A

Council’s Concerns Re: City Plan 2000

  1. [17]
    The concerns expressed by Ms Blyth for the Council in relation to City Plan 2000 as set out in the joint planning report may be summarised as follows:-
  1. (a)
    Residential Design – Single Unit Dwelling – City Plan 2000

Ms Blyth addressed the issue of whether the proposed SUDs, each containing a Single Unit Dwelling within the definition of that term in City Plan 2000, could be said to have two or more street frontages; in which case, under paragraph 4.1 of the Residential Design – Single Unit Dwelling Code, all common boundaries with adjoining lots (whether within the site or adjoining the site) are to be considered as side boundaries and there will not be any rear boundary.[6] She considers they would not be on a corner lot as opposed to the existing house which would be.

  1. (b)
    DEO4 of the Residential Areas – City Plan 2000
  1. (i)
    Ms Blyth says the proposal does not comply with DEO4 of the Residential Areas, which speaks of neighbourhoods having a sense of place based on their location, residential nature, heritage, topography, natural environment, built form and proximity to a local Centre.  In her opinion, Charlton Street and nearby residential streets have a strong sense of place based on a streetscape of predominantly traditional character houses and 2 storey buildings with pitched rooves, surrounded by gardens and treed footpaths.  The proposed 3 storey single unit dwellings are inconsistent with that sense of place of Charlton Street and neighbouring streets.  She agrees with Mr Harvey that the materials proposed to be used are consistent with the surrounding traditional character, but they will still appear as 3 storey buildings from the street and all other elevations.
  1. (ii)
    She agrees that City Plan 2014 Dwelling House (Small Lot) Code[7] allows for a building up to 9.5 metres in height and that a single dwelling house compliant with that code is theoretically similar to the mass of the proposed single unit dwelling.  However, she says, the Appellant’s massing diagrams have not taken into consideration Overall Outcome 2(a)[8] of the Traditional Building Character (Design) Overlay Code of City Plan 2014, which speaks of the development reflecting or strengthening the traditional character and building character through compatible form, scale, materials and detailing.  Further, Ms Blyth says, Acceptable Outcome A08[9] is not complied with.  That requires that the building height and roof and eave levels continue the rhythm of the stepping levels and eaves in the street which the proposal does not. 
  1. (iii)
    The bulk and scale of the proposed SUDs potentially casts larger shadows than would reasonably be expected, and as a consequence, may have an impact on access to daylight, sunlight and breezes to adjoining buildings.  Since the joint report, Mr Harvey has produced shadow diagrams in his individual report, and Ms Blyth now has no concern about shadowing.[10]  Accordingly, any subsequent reference to Ms Blyth’s opinion on the shadowing in the joint report should be read in that context.
  1. (iv)
    That part of Charlton Street where the Site is located is a very different character to the Racecourse Road Centre, evidenced by the inclusion of Racecourse Road in a different zone and Neighbourhood Plan in City Plan 2014.
  1. (c)
    DEO5 of the Residential Areas of City Plan 2000
  1. (i)
    DEO5 for Residential Areas states that:-

“Dwellings have reasonable access to daylight, sunlight and breezes and have privacy.”

Whilst Ms Blyth acknowledges that the amended plans address the issue of privacy by screening and balcony setbacks, she says the height and setbacks of the SUDs do not meet DEO5 because there is a potential to cast larger shadows than reasonably expected, which may have an impact on the access to daylight, sunlight and breezes to the adjoining buildings.  Whilst the screening to the rear and side of the SUDs rear verandas addresses the privacy issue of adjoining dwellings, it results in partial enclosure of the verandas, defeating the purpose of open verandas.

  1. (d)
    The Purpose of the Residential Design – Single Unit Dwelling Code – City Plan 2000
  1. (i)
    Ms Blyth considers the proposed SUDs are not compatible in scale with neighbouring dwellings, thus denying compliance with the purpose of the Residential Design – Single Unit Dwelling Code.[11]  They present as 3 storeys with the floor level of the third storey comparable to the height of the eaves of the adjoining character houses, thus presenting them as appearing 1 storey higher than the existing adjoining character houses, and incompatible with them.
  1. (ii)
    The proposed lots accommodating the SUDs change in level from front to rear by only 1 metre, which will be insufficient to accommodate an entire storey, resulting in the ground floor level presenting as 1 storey.  That denies compliance with DEO1 of the Character Residential Area.[12]
  1. (e)
    Residential Design – Single Unit Dwelling Code
  1. (i)
    The proposed SUDs, being of 3 storeys in height, is inconsistent with the low density nature of dwellings included in the surrounding Character Residential Area.  The proposed SUDs are inconsistent with Performance Criterion P1 of the Residential Design – Single Unit Dwelling Code, again because of its 3 storey height and potential to cast larger shadows than reasonably expected, resulting in possible impact on the access to daylight, sunlight and breezes to adjoining dwellings.
  1. (ii)
    Further, there is noncompliance with Performance Criterion P4, given that the rear setback of 3 metres is half the minimum of 6 metres set out in the relevant Acceptable Solution A4.3, which may, again, reduce daylight to the habitable rooms and open space of adjacent dwellings.
  1. (f)
    Purpose of the Residential Design – Character Code
  1. (i)
    The Purpose of the Residential Design – Character Code[13] is to encourage development in Demolition Control Precincts to reflect or strengthen pre-1946 housing character through compatible forms, scale, materials and detailing.  The proposal will not comply with this Purpose given its height of 3 storeys.

Council Concerns Re: City Plan 2014

  1. (g)
    City Plan 2014 – Character Residential Zone[14]

Infill Housing Zone Precinct proposal will not comply with the following Infill Housing Zone Precinct Overall Outcomes:-[15]

  • Section 6.2.1.5(7)(b)(i) – greater than 2 storeys;
  • Section 6.2.1.5(7) (b)(iii) – not compatible with the scale and design of existing 1946 or pre-1946 houses;
  • Section 6.2.1.5(7)(b)(iv) – does not reinforce traditional building character of precinct;
  • Section 6.2.1.5(7)(c) – does not achieve a yield of one dwelling per 300m2.
  1. (i)
    It potentially restricts good access to daylight and sunlight for the proposal and adjoining residential sites, and affects privacy for adjoining houses; does not provide quality open space or encourage outdoor living, and the buildings provide no relationship between living areas and outdoor space, with verandas of only 1 metre in width, insufficient for outdoor living.
  1. (ii)
    Under City Plan 2014, the proposal, which includes a house and two single unit dwellings, would be assessed under the Dwelling House (Small Lot) Code and Traditional Building Character (Design) Overlay.  The proposed SUDs do not comply with Overall Outcomes B, C, D and G of the Dwelling House (Small Lot) Code which deal with such issues as reasonable access to daylight and sunlight for neighbouring dwellings, private open space, appropriate level of privacy for adjoining dwelling houses, and the siting of a dwelling house and any built to boundary walls not to negatively impact on the privacy and amenity of adjoining residents.
  1. (iii)
    By reason of exceedance of maximum height, rear boundary setbacks and the length of built to boundary wall, Acceptable Outcomes AO2.1, AO2.2 and AO2.4 are not complied with.
  1. (iv)
    The proposal also fails to comply with Performance Outcome PO2 of the Code as its bulk and scale is not consistent with, and does not complement, the built form prevailing in the street and local area, which is primarily 2 storey dwelling houses with a pitched roof.
  1. (h)
    City Plan 2014 – Traditional Building Character (Design) Overlay Code
  1. (i)
    The proposed development does not comply with Overall Outcome (2)(a) of the Traditional Building Character (Design) Overlay Code given the buildings are 3 storeys in height, their eaves appear 1 storey higher than the eaves of adjoining pre-1946 houses and do not reflect the scale of traditional character housing in the street and local area. 
  1. (ii)
    Acceptable Outcome AO8 of this Code requires building height and roof and eave levels that continue the rhythm and maintain that stepping in the street.  The mass and height of the proposed SUDs will be unacceptable, resulting in noncompliance with Performance Outcome PO8, not complementing the predominant traditional scale of dwelling houses, constructed in 1946 or earlier, in the street.

Appellant’s Response to Council Concerns

  1. (a)
    Residential Design – Single Unit Dwelling Code
  1. (i)
    Mr Harvey contends, contrary to the view expressed by Ms Blythe, that the proposed SUDs could be regarded as single unit dwellings located on a lot with two or more street frontages in section 4.1 of the above Code, so that all common boundaries with adjoining lots, whether within the site or adjoining the site, are to be considered as side boundaries and there would not be any rear boundary.  He asserts the double frontage argument on the basis that the proposed SUDs remain on the existing un-subdivided corner lot until such time as they approved, constructed, or conditions of approval complied with, survey plans registered and separate titles issued.  I don’t agree.  The SUDs will not be on a corner lot.
  1. (b)
    DEO4 of the Residential Areas – City Plan 2000
  1. (i)
    As to the concerns raised by Ms Blythe, Mr Harvey agrees that the building height of the SUDs is 3 storeys, but represents an alternative solution to Acceptable Solution A1.3 of the Residential Design – Single Unit Dwelling Code, which speaks of a height of 8.5 metres above ground level and 2 storeys for development in a Character Residential Area in which the site is located.
  1. (ii)
    Further, Mr Harvey says, the 9.5 metre height proposed complies with Acceptable Outcome AO2.2(a) of the 2014 Dwelling House (Small Lot) Code[16] and also complies with AO3(c), which speaks of a site coverage of 70% for lots of 200m² or more and less than 300m².[17]  In Mr Harvey’s view, the neighbourhood also draws its built form from the proximity of the SUDs to the Local Centre.[18]  I do not agree with that.  Charlton Street has a discrete character.  Despite its proximity to Racecourse Road, it is very different in built form and character to that area.
  1. (iii)
    As to Ms Blythe’s concern as to the mass and height of the SUDs being beyond the reasonable expectation of a 2 storey dwelling in height than the SUDs, Mr Harvey points out that the pre-1946 houses adjoining the proposed SUDs are of 2 and 3 storeys and that the intent of Acceptable Outcome AO8 of the Traditional Building Character (Design) Overlay Code of City Plan 2014 speaks of maintaining the characteristic rhythm of the stepping levels and eaves in a sloping street, as depicted in Figure e.[19]  This is complied with by the SUDs, as they provide stepped levels between the existing houses within Charlton Street which gently slopes downhill from south to north towards Beatrice Terrace.[20]
  1. (c)
    Individual Report of Mr Harvey 15 September 2015
  1. (i)
    It is appropriate at this point to refer to Mr Harvey’s individual report[21], which addresses areas of disagreement with Ms Blythe on the following issues:-
  • the height of the SUDs being 3 storeys;
  • the scale not complementing the low density and traditional character scale of Charlton Street and the local residential area;
  • the bulk and height of the SUDs casting larger shadows than would reasonably be expected leading to a possible impact on access to daylight, sunlight and breezes to adjoining dwellings;
  • setbacks to boundaries not complying with Residential Design – Single Unit Dwelling Code of City Plan 2000 or the Dwelling House (Small Lot) Code of City Plan 2014; and
  • the dwelling density of the Character Residential Zone Code of City Plan 2014.
  1. (ii)
    Subsequent to the joint planning report of 19 August 2015, where the above issues in dispute to this point of this judgment were identified and agreed upon, Mr Harvey produced his individual report, which includes Attachments A to D based on further information obtained from WD Surveys, surveyors and Mr Edyta Abramczyk, and architect from Urban Design and Planning Pty Ltd.  Those attachments comprise:-

A Additional survey of building heights and ground levels for 49 and 53 Charlton Street properties;

B Architectural shadow diagrams for the proposed SUDs and an indicative code compliant small lot house under City Plan 2014;

C Architectural shadow diagrams for the proposed SUDs of 3 metre and 6 metre rear boundary setbacks under the Residential Design – Single Unit Dwelling Code of City Plan 2000; and

D Architectural streetscape drawings.

  1. (iii)
    Despite the requirement of Character Residential Area DEO1 of City Plan 2000 that the low density living environments predominantly comprise separate houses of no more than 2 storeys and strongly reflect the pre-1946 housing character, Mr Harvey says this provision does not preclude houses of 3 storeys, which he accepts the SUDs are.  From Charlton Street, he says they will appear as a raised 2 storey building, not overbearing to the street.
  1. (iv)
    As to the stepping of the levels of adjoining buildings and uniform spacing between houses in the Residential Design – Character Code of City Plan 2000, he points to the fact that the code provides for two narrow buildings combined with zero lot line to create a single building form under a combined roofline in scale with surrounding houses.
  1. (v)
    In his view, Attachment D to his report evidences that the intent of that Code has been achieved by combining the SUDs under a single roofline using a zero lot line boundary wall, which maintains the stepping and rhythm of building levels, is consistent with the width of adjoining buildings and maintains the spacing between character houses in the street.
  1. (vi)
    As to height, Mr Harvey says that Performance Criterion P1 of the Single Unit Dwelling Code anticipates building heights in excess of 8.5 metres, provided the additional height does not result in the loss of views or outlook or reduction of visual amenity.  In his view, the proposed 3 storey 9.5 metre high SUDs is an alternative solution to Acceptable Solution A1.3 of this code.  He notes Ms Blyth’s agreement that there is no restriction on views resulting from the height.
  1. (vii)
    Further, Mr Harvey argues that Attachment D evidences that the height of 9.5 metres maintains the rhythm and stepping of roof levels in Charlton Street, and sets out a table of building heights 49 Charlton Street, 51 Charlton Street, and the SUDs on 31 Beatrice Street.  This shows, he says, the rhythm of the street is maintained by the design of roof height of RL21.67 metres for the SUDs, comparable with roof heights of the abovementioned properties.
  1. (viii)
    Although the proposed SUDs are contained on two smaller lots, the fact of the single roofline renders an appearance of a single building with a combined frontage of 20.5 metres presenting as a 2 storey single building from Charlton Street similar in bulk and scale to the surrounding pre-1946 houses.
  1. (ix)
    As to the Traditional Building Character (Design) Overlay Code in City Plan 2014, which seeks to retain the pre-1946 building form and bulk and rhythm and stepping of eaves, Mr Harvey points to 49 and 51 Charlton Street, between which he says there is a height difference of 2.8 metres, so as to render them not typical of the houses depicted in Figure e mentioned above.  The SUDs will have a height difference of 2.1 metres between their eaves and those of 51 Charlton Street.  As far as Mr Harvey is concerned, the SUDs building height and form generally complies with the parameters of Figure e.[22]
  1. (x)
    Shadowing

As to the potential for the SUDs to cast larger shadows than should reasonably be expected over adjoining houses and their private open spaces, Mr Harvey points to Attachments A, B and C, and shadow diagrams of the proposed SUDs and the code compliant small lot house, and says there is only a minor difference between those two options as far as shadowing is concerned.  It is, in his view, in line with shadowing expectations of City Plan 2014.

(xi) Boundary Setbacks

Accepting that the eastern boundary is the rear boundary, which results from my finding that the SUDs are not a corner lot, Mr Harvey acknowledges the setbacks do not comply with Acceptable Solution A4.3 of the Residential Design – Single Unit Dwelling Code, which requires a minimum of 6 metres but says that the SUDs still meet Performance Criterion P4, which provides that development must not significantly reduce daylight to open space and habitable rooms in adjacent properties.  He says the shadow diagrams illustrate that the shadows cast over 33 Beatrice Terrace for the two options of the proposed SUDs and a compliant small lot house, do produce a difference, but the additional shadows constituting that difference do not significantly reduce daylight to open space and habitable rooms.  They fall generally on the roof of the built to boundary house on 33 Beatrice Terrace.

(xii) Mr Harvey accepts that the wall and the rear boundary of the SUDs only partially complies with Acceptable Outcome AO2.5 of the Dwelling Houses (Small Lot) Code of City Plan 2014, because it is not set back 4.5 metres for that part of the wall above 4.5 metres in height but rather 3 metres only.  Notwithstanding that though, he says, corresponding Performance Outcome PO2 speaks of the bulk and scale of the development complementing the built form of front boundary setbacks prevailing in the street and local area, not creating an overbearing development of adjoining houses, not impacting on amenity and privacy of the residents of adjoining houses, nor depriving them of significant views and outlook providing for natural light, sunlight and breezes.

(xiii) Dwelling House Density

Mr Harvey says the proposed density of one dwelling per 280m² for SUDs is consistent with the expectation for the infill Housing Precinct of the Character Residential Zone of City Plan 2014.

Traffic Evidence

  1. [18]
    A joint report of traffic engineers, Mr Pekol (Appellant) and Mr Beard (Respondent) dated 21 August 2015 was produced together with an earlier individual report of Mr Pekol of 10 August 2015. It is not necessary for me to discuss in detail the issues raised in the report because I am not satisfied that any of them would be an obstacle to approval of the proposal, if, in all other respects the proposal was amenable to approval.

Council’s Submissions

  1. [19]
    The Council’s submissions point to what it says is a strong traditional building character in the area, with the majority of dwelling houses 2 storeys in height. By reference to Ms Blyth’s evidence, the key features of that traditional building character are to be found in the predominance of substantial 2 storey traditional character dwellings on large allotments with pitched rooves, substantial in their overall height above the eaves line, representing an excess of 30% of the total façade to Charlton Street as Attachment D to Mr Harvey’s individual report, Exhibit 4, demonstrates.
  1. [20]
    That Attachment, Council says, illustrates the above point as to the overall height above the eaves line, when one looks at 49 Charlton Street with a roof 3.59 metres above the eaves line and 51 Charlton Street with 3.9 metres above it. In both cases, Council says the overall height of the roof exceeds the height of a single storey of the proposed SUDs.
  1. [21]
    The next feature evidencing the character is the existence of a relatively uniform eaves line, from Lot 1, Appellant’s existing house (RL 16.95), for 51 Charlton Street (RL 16.740) and 49 Charlton Street (RL 18.15). Further, development in Charlton Street is generally well setback from side boundaries, providing separation and space around buildings, there being no built to boundary developments evident in Charlton Street.

Conflicts with City Plan 2000 

  1. [22]
    Any approval of the proposal would, Council says, conflict with the following provisions of City Plan 2000:-
  1. (a)
    Chapter 3, Character Residential Area ss 5.3.1 and 5.3.2.  The former is the Intent of the Area, which speaks of the Area primarily accommodating pre-1946 houses with any new single unit dwellings reflecting pre-1946 architectural themes, being at a low level of intensity and at a scale compatible with existing dwellings.  Section 5.3.2 speaks of low density development predominately comprising separate houses of no more than 2 storeys, strongly reflecting the pre-1946 housing character with any single unit dwellings to complement the traditional housing forms.
  1. (b)
    Chapter 5 of the Residential Design – Single Unit Dwelling Code, including its Purpose and Performance Criteria P1 and P11.  As to the Purpose of the Code it speaks, inter alia, of effectively managing impacts of development on neighbours whilst ensuring development is compatible in scale, bulk and design with neighbouring dwellings and is not overbearing to them, being of low intensity complementing pre-1946 architectural themes and ensuring that it complements pre-1946 architectural themes.

Performance Criterion P1 speaks of single unit dwellings minimising amenity impacts on neighbours in terms of access to sunlight, daylight and privacy and building size, bulk and height to be consistent with the low density nature of the locality, not creating overbearing developments for neighbouring dwellings.  P11 speaks of vehicle parking and access being efficient, safe and convenient for residents and visitors.

  1. (c)
    Chapter 5 of the Residential Design – Character Code, particularly Part 2 Performance Criteria P2 and P5.  The former provides that the building height and bulk of any development must compliment the predominant scale of pre-1946 houses nearby in the street and P5 provides that roof form must reflect traditional roofs in the area.
  1. [23]
    All the above mentioned identified conflicts with City Plan 2000, apart from Performance Criterion P11 of the Residential Design – Single Unit Dwelling Code dealing with vehicle parking and access, are said by Council to be evidenced by the scale, bulk and design of the proposed SUDs, which are incompatible with and do not complement the character of Charlton Street.

Compatibility with Character of Charlton Street

  1. [24]
    The incompatibility of the SUDs with the character of Charlton Street flows from their scale, bulk and design arises, Council says, because the proposal involves squeezing 3 storeys into a building, causing its scale, proportion and design to be out of step with the Charlton Street traditional building character mirrored by the vast majority of houses being 2 storeys in height.
  1. [25]
    The third storey will be a separate and distinct element of the façade, impacting on the eaves line of the SUDs and the shape and design of their roof. This is to be contrasted with the design of the existing subject dwelling on Lot 1, 31 Beatrice Terrace, and that at 56 Charlton Street on the opposite corner of its corner with Beatrice Terrace,[23] in both of which dwellings the third storey is located and somewhat disguised in a roof space.
  1. [26]
    As Exhibits 4 (Attachment D) and 14 show, there is a relatively uniform line of building eaves apart from the proposed SUDs which will have an eaves line sitting well above the otherwise uniform line, resulting in the SUD appearing out of proportion with its neighbours as a result of the following:-
  1. (a)
    the shortening of the proportion of the façade presenting as a roof to Charlton Street in contrast to its neighbours, with its height in the order of 1.6 metres compared to the balance of dwellings illustrated in Exhibit 14 with roof heights above eaves level in excess of 3.5 metres.  This is the equivalent of more than 30% of the façade and one habitable storey of the proposed SUDs. 
  1. (b)
    The third storey of the SUDs will align with the roof space of its neighbours, giving a clear visual impression that it is thereby 1 storey taller. 
  1. (c)
    Its third storey protrudes above the eaves line of those neighbours by a significant order, thereby disrupting the pattern of roof shape, pitch and the rhythm of lines in Charlton Street. 
  1. (d)
    Further, the differing roof shape and pitch from its neighbours in Charlton Street detracts from the character of Charlton Street, rather than complementing it or strengthening it as the planning scheme envisages.
  1. [27]
    Apart from the above, Council point to two other features of the proposed SUDs which further contribute to incompatibility with the character of Charlton Street. The first is that the SUDs will be built to boundary to its southern side, with no other such development on the eastern side of Charlton Street. Secondly, the eastern boundary setback of 3m, instead of 6m, coupled with the height of the walls of the proposed SUDs of 8.1 metres up to the eaves, will, as Ms Blyth said, result in an overbearing development for the existing dwelling to the east at 31 Beatrice Terrace. Finally, on the issue of character, Council points to the exceedance of the dwelling yield of one dwelling per 300m2 of site area in Acceptable Solution A1.1 of the Residential Design – Single Unit Dwelling Code, with the proposal’s yield being 1 per 280m2.

Mr Harvey’s Evidence

  1. [28]
    Council then addressed some of the evidence of Mr Harvey founding his opinion that the SUDs would be consistent with the height, bulk and scale of the locality. It first takes issue with his opinion that the SUDs, whilst 3 storeys in height, will have the appearance of 2 storeys when viewed from Charlton Street[24], and would have the appearance of a raised 2 storey building, not overbearing to the street.  In cross-examination[25], he conceded that from different angles in Charlton Street, the SUDs would read as 3 storeys.  Council submits that the SUDs will read as a 3 storey structure. 
  1. [29]
    As to Mr Harvey’s comparison between the bulk and height of the proposed SUDs with that which could be applied for under the Dwelling House (Small Lot) Code of City Plan 2014,[26] Council pointed to his evidence in cross-examination[27], in which Mr Harvey conceded that the building mass diagrams he relied upon[28], comparing the building footprints/building envelope of the proposed SUDs with what was called an indicative code compliant small lot house under City Plan 2014, did not take into account all the parameters relevant under City Plan 2014, relevant to the determination of the appropriate building envelope.  He agreed they did not take into account Performance Outcome PO8 and Acceptable Outcome AO8 of the Traditional Building Character (Design) Overlay Code[29] mandating consideration, amongst other things, of the rhythm of eaves and rooflines.
  1. [30]
    Further, Council says the massing diagrams shows that the SUDs do not satisfy the Acceptable Outcomes of the Dwelling House (Small Lot) Code in City Plan 2014, namely AO2.2[30] given that the walls of the SUDs are more than 7.5 metres above ground level and are greater than 2 storeys.  Further, AO2.5 is not satisfied because of the setback to the eastern boundary, which calls for a 4.5-metre setback for that part of the building above 4.5 metres in height.  The actual setback is 3m. For all the above reasons in relation to the subject comparison with City Plan 2014, Council says there will be a difference between the mass of the proposed SUDs and the theoretical indicative compliant small lot house, which difference will be appreciable.[31]
  1. [31]
    As to the above attempted comparison, the Council submits that Mr Harvey’s approach of utilising City Plan 2014 provisions to demonstrate acceptability of the proposal under City Plan 2000, which he conceded he had done, is an erroneous approach as it conflates the provisions of the 2000 and 2014 plans. Whilst it is common ground that City Plan 2014 should be taken into consideration, the proposal should be assessed separately under both plans.
  1. [32]
    The final piece of evidence of Mr Harvey (Council) pointed to was his reliance upon the architectural streetscape drawing in his individual report.[32]  He sought to demonstrate that the proposed SUDs maintained the stepping and rhythm of building levels, are consistent with the width of adjoining buildings and maintained the space between character houses and the street, but Council says his conclusions are not supported for these reasons:-
  1. (a)
    the drawing incorrectly shows the width of the proposed SUDs as 15.470 metres, which excludes part of the SUDs built to the southern boundary at ground level which, if correctly included, takes the width of the SUDs to around 17.2 metres, compared with a range of 12.125 metres to 14.7 metres for the other dwellings in the drawing, namely 49 and 51 Charlton Street and 31 Beatrice Terrace (Lot 1).  The correct building width has the effect of narrowing the gap between the SUDs and 51 Charlton Street.  I note the drawing shows the separation as 5.8 metres, and Mr Harvey[33] conceded that at the lower level of the SUDs it could be closer to 3.4 metres.  This, the Council says, is to be compared to a range of 12.125 metres to 14.7 metres for Lot 1, 31 Beatrice Terrace and 51 Charlton Street respectively.  In conclusion, Council says, when the architectural streetscape drawings under discussion are read properly, the opinion of Ms Blyth[34] is it confirms namely that the proposal exhibits features inconsistent with the traditional character of the area, and Ms Blyth’s evidence should be preferred to that of Mr Harvey.

City Plan 2014

  1. [33]
    Council submits that whilst City Plan 2014 should be taken into account, it will not resolve the appeal in the Appellant’s favour, because it does not encourage the proposal. On the contrary, any approval of the SUDs would be in direct conflict with the following provisions of the Character Residential Zone Code:-
  1. (a)
    s 6.2.1.5(2)(b) and (e) being part of the Purpose of that Code, namely to provide for low density living through 1 or 2 storey dwelling houses, ensuring that any development reflects and complements the city’s traditional building character of housing, built in 1946 or before, through compatible form, scale, materials and detailing and ensuring that the development is of a form and scale that reinforces a distinct character of low rise buildings;
  1. (b)
    s 6.2.1.5(4)(b)(i) and (ii) which are Overall Outcomes to achieve the Purpose of the Code by ensuring that development in the Infill Housing Zone Precinct facilitates a mix of existing dwelling houses and new housing choices, including dual occupancy… which comply with site density, building height, number of storeys and setback requirements of the Traditional Building Character (Design) Overlay Code and the Multiple Dwelling Code and is sensitively integrated with, and located between or behind, existing dwelling houses built in 1946 or before on appropriately sized lots;
  1. (c)
    s 6.2.1.5(5)(a), (c) and (e) which are development form Overall Outcomes requiring development for a residential building to be of a height, bulk, scale and form compatible with the traditional building character of the Character Residential Zone and consisting of buildings of 1 or 2 storeys in height, reflecting the traditional building character prevalent within the traditional building character overlay and ensuring that new premises are located within a defined building envelope;
  1. (d)
    s 6.2.1.5(7)(b)(i), (iii) and (iv) sets out Overall Outcomes for the Infill Housing Zone Precinct providing that a new dwelling house is no more than 2 storeys in height, is compatible in scale and design with existing dwellings built in 1946 or before, and reinforces the traditional building character of the Infill Housing Zone Precinct; and
  1. (e)
    s 6.2.1.5(7)(c) calling for any development to achieve a maximum dwelling yield of 1 dwelling per 300 metres of site area. 
  1. [34]
    It will be apparent from the above that Council’s asserted conflicts are founded on the following features of the proposal – the exceedance of 2 storeys in height, not located on appropriately sized lot of less than 300m2, thus achieving a maximum dwelling yield in excess of 1 dwelling per 300m2 of site area and not being compatible with the traditional building character of the Infill Housing Zone Precinct.  For those reasons, Council says City Plan 2014 does not support approval of the application despite any conflict found with City Plan 2000.

Appellant’s Arguments

Compliance with Residential Design – Character Code – City Plan 2000

  1. [35]
    The Appellant says the only issues in dispute in relation to this Code are about compliance with Performance Criteria P2 and P5, which deal respectively with building height and bulk complementing the predominant scale of pre-1946 houses nearby in the street and roof forms reflecting traditional roofs in that part of the Demolition Control Precinct in which the site is located.

Performance Criterion P5

  1. [36]
    Dealing firstly with P5, the Appellant takes issue with what he says is a retraction by Ms Blyth at trial of her evidence in the joint planning report. In that report it is set out[35]:-

“5.11 Item 16 – Eaves

5.11.1 Item 16 of the Notice of Appeal states that the proposed SUDs with no eaves and a flat roof do not reflect any traditional roofs in this part of the Demolition Control Precinct.  The plans have been revised to include a pitched roof form.  No eaves have been included on the sides of the proposed SUDs. 

5.11.2 Ms Blyth and Mr Harvey agree that the revised proposed SUD’s roof form and no eaves meets P5 of the Residential Design – Character Code (RDCC) which states that:

‘roof form must reflect traditional roofs in that part of the Demolition Control Precinct.’”

  1. [37]
    In Ms Blyth’s evidence[36], her mark-up of Attachment D to Mr Harvey’s individual report, Exhibit 4 being an architectural streetscape drawing, shows eaves lines became Exhibit 14.  As to the two blue lines she drew on that Exhibit, she explained:-[37]

“What I did when having a look at the streetscape that was prepared by Mr Harvey, I had a look at what was the prominent eaves line for the houses in the street.  Obviously, when you have a look at Lot 1, the eaves height is clear.  When you look at the houses at 51 Charlton Street and 49 Charlton Street, there is some variation in the eaves height due to the gables that are at the sides of the houses.  However, when I think you view – my opinion is when you view those houses from the street, that predominant eaves line is actually the frontline of the houses as it presents to the street, the roof eaves.  The reason why I’ve drawn the other line is to be conservative in my opinion in that, well, you still do see the – when I went along the street, you do still see that other eave line of the other gables, but it’s not as prominent as that frontage of the house to the street… So when we look at the predominant eaves line which is the lower line, you see that the top floor, the third storey of – on Lots two and three, being the single-unit dwellings, is one whole storey plus a roof form above that roof – above that eaves line.  And then when you have a look at – as I said, more my conservative approach, you still have the majority of the third storey above that stepping line…” (emphasis added)

  1. [38]
    Under cross-examination[38], there was this exchange:-

“Question:  Alright.  As for P5, if you go to page 20 of the joint report at paragraph 5.11 at .2 it seems that compliance with P5 was not an issue in dispute between the planning experts?

Answer:  That was not an issue between Mr Harvey and I.  My comments related to that was regarding that the pitch of the roof – a pitch had been included in the new design.  And that pitch and the materials that had been used were appropriate.

…

Question:  Right.  Now, a moment ago you gave evidence to the Court that you did not have – I think you said street elevations available to you at the time of the joint expert report?

Answer:  Showing the – the context of the proposed development within that streetscape, yes.

Question:  Alright.  The context of the proposed development?

Answer:  Uh-huh.

Question:  Alright.  You don’t suggest, do you, that what’s in Mr Harvey’s Attachment D – that is the streetscape – shows a roof of any different shape or size to what is depicted on the development plan?

Answer:  No it doesn’t but it helps to put into context the roof and the form of the building within the streetscape, not just next to the house at 31 Beatrice Terrace…”

  1. [39]
    The Appellant submits that it would be patently unfair to admit the above evidence of Ms Blyth’s changed opinion in circumstances where no notice of her change of position was given to the Appellant prior to trial, no leave was sought by Council to permit the evidence to be given departing from the joint report, and Ms Blyth’s changed view was not put to Mr Harvey in cross-examination. Further, when sworn she adopted the opinions expressed by her in the joint report without qualification or reservation. Further, it is said, Ms Blyth’s purported reason for the change of opinion is not credible given that the roof form in Attachment D to Mr Harvey’s individual report is no different from that in Plan DA124[39], considered by the planners in their joint report.
  1. [40]
    I disagree that reliance on that evidence would be unfair. Several things may be said about it. Firstly, Mr Harvey’s individual report, enclosing the relevant streetscape drawing dated 15 September 2015, came a month after the joint report of 19 August 2015. Next, no objection was taken at trial to the admission of the evidence and cross-examination proceeded on it. Ms Blyth has explained that it allowed her, for the first time, to see a streetscape elevation. Finally, Mr Harvey was cross-examined at length on the roof heights above eaves lines and the purported proportion of the roof of the SUDs compared to 0ther dwellings in his Attachment D and Exhibit 14. The evidence is properly admissible and will be taken into account.

Performance Criterion P2

  1. [41]
    I turn now to P2, the primary basis of Ms Blyth’s opinion of noncompliance with the Character Code. The Appellant points to paragraph 4 of the Code[40] and the words:-

“The sense of scale of a street can be diminished if buildings are introduced that significantly exceed the surrounding building height, present large unarticulated façades to the street or interrupt the rhythm of stepping rooflines in a sloping street.”

  1. [42]
    As to the height of the SUDs, the Appellant points to their maximum height of 9.5 metres above ground level at RL21.670, which exceeds the height of the proposed retained house on Lot 1 at 8.648 metres[41] by 1.21 metres[42], and that of 51 Charlton Street, directly adjoining, by 0.97 metre.[43]  In practical terms, it is said, the SUDs are the same height as 40 Charlton Street.  Given that Ms Blyth accepted under cross-examination[44] that the height, of itself, was not unacceptable, the Appellant submits there is no significant exceedance of the height of surrounding buildings.

Stepping Rooflines in a Sloping Street

  1. [43]
    As to the reference to stepping rooflines in a sloping street in the above passage, the Appellant submits that Charlton Street is not a sloping street and relies upon the evidence of Mr Harvey[45], who says that the height between Beatrice Terrace and 49 Charlton Street is probably 2 metres or three or four degrees, compared with a 20 degree gradient in Figure e in the diagram forming part of the Traditional Building Character (Design) Overlay Code.[46]  Those two gradients of three of four degrees, on the one hand, and 20 degrees on the other, cannot be compared according to Mr Harvey who regards the Beatrice Terrace/49 Charlton Street gradient as relatively flat.[47]
  1. [44]
    From the above, the Appellant says, none of the three indicia in paragraph 4 of the Residential Design – Character Code, namely “significant exceedance of building height”, “large unarticulated façades” and “interruption of the rhythm of stepping roof lines” is present.
  1. [45]
    Further, it is said, Ms Blyth’s expressed opinion that any slope at all above the flat meant the street was a sloping street was extreme and untenable. I do not agree that the relevant part of Charlton Street should be treated as being relatively flat. It has a slope. As to the Appellant’s reliance on the diagrams of City Plan 2000, namely Figure c page 127 of Exhibit 2[48] as to the slope grading, I find this somewhat bewildering given his approach to the same diagram reproduced in his joint report with Ms Blyth.[49]  This is the same diagram as Exhibit 2, p 217, where he said:-[50]

“Figure e contained in Brisbane City plan 2014 – Traditional building character (design) code is not a reliable source as it is not to scale, does not provide any dimensions from which to derive building compliance and depicts adjoining character houses of single storey nature…”

  1. [46]
    The Appellant appears to rely on the same diagram to support one part of his argument but denigrates it to support another.
  1. [47]
    Next, the Appellant argues, from Mr Harvey’s uncontroverted calculations[51] that both the relocated house on Lot 1 and 51 Charlton Street will have eave heights within 20% of that of the SUDs, it follows that, if the proposed SUDs building was configured and occupied as a single dwelling, and therefore a “house”, it would meet A2.1 and therefore un-controversially comply with P2.  The Appellant rejects Ms Blyth’s view that the above matters leading to compliance with A2.1 are irrelevant because it is SUDs rather than a house under consideration is an unreasoned, and even capricious, distinction.  Of that, I am not so sure.  I agree the proposal under consideration is an SUD, not a house.  The Appellant says that from a streetscape perspective, there is no difference resulting from a single building, of given eave heights, being internally subdivided into two dwelling units.
  1. [48]
    It follows from the above, according to the Appellant, that Ms Blyth’s reliance on the predominant eave line in Exhibit 14, and her view that an acceptable building form must have eave heights on or very close to the lines marked on Exhibit 14 by her, defies A2.1, because Figure c,[52] a relevant diagram, is not scaled but rather merely indicative.  It is self-evident, it is said, that the eave height of the unacceptable building in that diagram on a flat street appears to be well more than 20% of the two adjoining houses also on the flat part of the street.[53]  In conclusion, it is submitted, P2 has been complied with.
  1. [49]
    The final matter in relation to the Character Code relates to the separation between the SDU’s and existing houses, which Mr Harvey says is consistent and has uniform spacing in keeping with the established pattern. As to Mr Harvey’s spacing of 5.8 metres between the SDU’s and 51 Charlton Street in Attachment D, it is conceded that the measurement ignored the approximately 2 metres patio slope balcony area at ground level taking the spacing to 3.8 metres but, from a streetscape perspective in terms of perceived building separation, that distance is negligible.
  1. [50]
    I do not agree that this issue can be so lightly brushed aside. As to the requirement in P1 of the Character Code, that the height and bulk of the SDU’s complements the predominant scale of pre-1946 houses nearby in the street, the Appellant submits that this Performance Criterion is satisfied. He says that when one considers the meaning of “complement” as involving two or more parts making up a unified or harmonious whole, the SDU’s do just that within Charlton Street. There is no need for replication of buildings, rather the fitting together of the SDU’s and other houses in the street. The Appellant points to a passage in the cross-examination of Ms Blyth[54] to support the argument that she supports the proposition that the SDU’s complement the existing streetscape.  I do not agree with that.  In the relevant passage, Ms Blyth agreed there was some architectural features that fitted within the streetscape in terms of material, but not in terms of the proportion of the building to other buildings.  The materials and features referred to, such as verandas, Ms Blyth said are okay, complement the other houses, but it is the proportion of the SDU’s that is the problem.  That is entirely consistent with Ms Blyth’s evidence throughout.  It does not support the proposition contended for by the Appellant.

Residential Design – Single Unit Dwelling Code

  1. [51]
    As to the Residential Design – Single Unit Dwelling Code, the Appellant identified two Performance Criteria, namely P1 and P4, as being relevant to the Council concerns as to building bulk flowing from the number of stories flowing onto the wall height, to the eaves, and the rear setback, which elements founds Ms Blyth’s opinion that the development is overbearing.
  1. [52]
    P1 speaks of SUDs minimising amenity impacts to neighbouring dwellings in terms of access to sunlight, daylight and privacy, consistency of building size, bulk and height with the low density nature of the locality, not creating an overbearing development to be of a domestic scale consistent in height with neighbouring houses with any additional part of the building over 8.5 metres and/or 2 storey not to result in loss of views or outlook or to reduce visual amenity.
  1. [53]
    P4 speaks of the development not significantly reducing daylight to open space and habitable rooms in adjacent development with boundary walls to be limited in dimensions and openings to minimise the impact on neighbours.

Consequences of 3 Storeys

  1. [54]
    The Appellant accepts that the proposed SUDs is 3 storeys, so that Acceptable Solution A1.3 cannot be met given that it speaks of 2 storeys and 8.5 metres above ground level development in a Character Residential Area. Accepting that noncompliance, however, the Appellant makes the following points in relation to the impact of the extra third storey, having regard to the reasonable expectation of adjoining occupiers:-
  1. (a)
    the SUDs present from Charlton Street as containing two habitable storeys which is all it contains, elevated about 1.5 metres from street level a proposition it is said Ms Blyth agreed with;[55]
  1. (b)
    even without fencing, the built form between ground level and the first habitable storey does not present as a level for human habitation;
  1. (c)
    both Mr Harvey and Ms Blyth agreed that the proposed 9.5 metres and 3 storey height would result in no loss of views or outlook, and relevantly, the site is not on a ridgeline as far as visual amenity is concerned;[56]
  1. (d)
    if the proposed SUD building was merely supported on stumps or the like, with no constructed floor under the first habitable level, it would be a 2 storey building within the definition of that term in City Plan 2000, the definition reading:-

“Storey: a space within a building which is situated between 1 floor level and the floor level next above it and commencing at ground level, or if there is no floor level above, the ceiling or roof, above, but not a space that contains only:-

  • A lift shaft, stairway or meter room; or
  • A bathroom, shower room, laundry, water closet or other sanitary compartment; or
  • A combination of the above.

For the purpose of this definition a mezzanine is a storey.

The term ‘Ground Storey’ as defined elsewhere in this section is not applicable when determining the overall height of a building in storeys.”;

  1. (e)
    given the scenario in subparagraph (d), the two habitable storeys would be the same as proposed, including their height above ground level and their height from ground level to the eaves as viewed from 33 Beatrice Terrace to the east and 51 Charlton Street to the south. The only difference, it is said would be that the space from the ground level to the start of the first habitable storey would be in the nature of an undercroft with external battens or the like rather than walls and floor on enclosed garages which does not overlook or overbear upon anything;
  1. (f)
    Ms Blyth agreed in cross-examination[57] that the removal of the cladding on the bottom of the elevation of the proposal would not have a large impact on the bulk of the building in its entirety but would have some impact; and
  1. (g)
    If one hypothesised the proposed SUD building having its habitable storey at ground level on the Charlton Street frontage, the natural fall of the land to the rear will result in that level being 1 metre above the ground level at the rear so that both habitable storeys would still be elevated above and overlooking 33 Beatrice Terrace and the rear part of 51 Charlton Street.[58]
  1. [55]
    In the Appellant’s view, a 2 storey building of the proposed elevations, but with no constructed garages as presently proposed, would meet Acceptable Solution of being 2 storeys and 8.5 metres above ground level, as a result of which it would not be overbearing and would be compliant with P1.
  1. [56]
    As to the wall to eave height of 8.1 metres[59] of the proposal, and that of 7.5 metres, being the code compliant height under City Plan 2014, which latter height Ms Blyth accepted as compliant.[60]  The Appellant submits that the difference of 60cm between the two heights in the context of a habitable 2 storey building of total height of 9.5 metres, with no issue as to the width of the building given its compliance with the southern and northern setbacks in Dwelling House (Small Lot) Code of City Plan 2014,[61] means that no issue of overbearing development could arise.

Exceedance of Overall Dwelling Density

  1. [57]
    The Appellant submits that the difference between the acceptable density in Acceptable Solution A1.1 of one dwelling per 300 metres and the one per 280 metres a 9% difference could not, in that respect, constitute a failure to achieve corresponding Performance Criterion P1.

Performance Criterion P4 

  1. [58]
    P4 speaks of a development not significantly reducing daylight to adjacent developments, with boundary walls of limited dimensions and openings to minimise the impact on neighbours, which is relevant to the issue of unacceptable shadowing which Ms Blyth considered would not of itself be sufficient to warrant refusal. The other issue relevant to P4 is the setback from adjacent boundaries. In that regard the only noncompliance, which the Appellant accepts, is as to the rear boundary, where the setback is 3 metres rather than 6 metres, which is the minimum requirement of Acceptable Solutions A4.3. The rear boundary, the Appellant says, is the only setback in issue, given the acceptance by both Mr Harvey and Ms Blyth that the impact of shadowing on the eastern and southern boundaries was not unacceptable. Further, both of those experts agreed that the setback of 3 metres to the eastern boundary adjacent to 33 Beatrice Terrace be within the reasonable expectations of the occupier of that property. Though that acceptance by Ms Blyth was based on the height of the proposal being 8.5 metres, not 9.5 metres, the Appellant points to the shadow diagrams in evidence to demonstrate the additional 1 metre in height makes no material difference to the shadowing. In all the circumstances, the Appellant says that compliance with P4 has been established, given there will be no significant reduction in daylight to open space and habitable rooms in the adjacent development.

City Plan 2014

  1. [59]
    Accepting that the application is to be assessed under City Plan 2000, but that pursuant to SPA s 495(2)(a), City Plan 2014 may be given such weight as the Court considers appropriate, the Appellant submits that in considering City Plan 2014, the Court is primarily concerned to look at any consistency or inconsistency with forward planning strategies and intended planning outcomes, rather than embarking upon a detailed assessment of the application under the new scheme. The cases that are cited[62] to support that proposition do not support it.  There is nothing in SPA                     s 495(2)(a) that so circumscribes the provisions of City Plan 2014, which the Court is to consider.  Further, the proposition offends the basic principle of the interpretation of planning schemes, namely that they must be read as a whole.
  1. [60]
    None of this is to suggest that the application is to be assessed other than against City Plan 2000. Rather, comments go to the proper consideration of any relevant provisions of City Plan 2014.
  1. [61]
    The Appellant submits that under the 2014 Plan, the site is in an Infill Precinct intended for a mix of existing dwelling houses and new housing choices[63], and the fact that a compliant small lot house under the 2014 plan would have very similar built dimensions to the proposed SUD building, illustrates that the proposal would not frustrate or otherwise materially cut across the forward planning policy in the 2014 plan.  Further, it is argued, any particular differences reflected in Attachment D to the joint report comparing the proposal with the building envelope for a single house or issues of dwelling density, are based on detailed design requirements, and to descend to that detail to the extent of assessing the proposal under City Plan 2014, would be an error in principle.  I accept that latter proposition but my acceptance does not cut across what I have said above, and all relevant provisions of City Plan 2014 are on the table when considering that plan.
  1. [62]
    Again, focusing on the avoidance of the minutia, the Appellant pointed to Figure c of the City Plan 2000 Residential Design – Character Code[64] and the, relevantly identical, Figure e City Plan 2014 Traditional Building Character (Design) Overlay Code, earlier referred to.[65]  Whereas relevant Acceptable Solution A2.1 refers to eave height of any development to be within 20% of adjoining eave heights, Figure c does not contain any eave line.  Figure e does, though there is no 20% Acceptable Solution in the 2014 plan and there is no reference to it in the 2014 equivalent Performance Outcome PO8 or its corresponding Acceptable Outcome AO8 which speaks only of a sloping street.  Hence, it is said, there is no basis to assert that new development in a predominately flat street, which Mr Harvey categorised Charlton Street as, with all eaves within the 20% height of adjacent eaves would be any less acceptable under either the City Plan 2014 than it is under City Plan 2000.
  1. [63]
    Finally, the Appellant points to the absence of any definition of single unit dwelling in City Plan 2014 so that, on the basis that the proposed development does not cut across any new planning strategy in City Plan 2014, the lack of that definition would render a Court extremely cautious about finding anything in City Plan 2014 militating against acceptance of a proposal which would otherwise be approved under City Plan 2000.[66]

The Appellant’s Summary of Arguments Re: City Plan 2014 

  1. [64]
    In summary, the Appellant submits that, in terms of the forward planning strategy of the 2014 scheme, a residential building of comparable dimensions to the SUDs, representing Infill development as to the SUDs, is clearly consistent with and contemplated by that strategy. Further, there is nothing in City Plan 2014 to indicate that single unit dwellings, as distinct from a single dwelling house, are disfavoured or unacceptable as Infill development and a development complying with City Plan 2000 Residential Design – Character Code cannot, on any reasonable view, be shown to be one which will cut across the forward strategic intent or sites in the 2014 Traditional Building Character (Design) Overlay Code. For those reasons, the Appellant says there is nothing in the 2014 scheme militating against approval, given they ought to be approved based on a proper assessment under City Plan 2000.

Conflict with City Plan 2000

  1. [65]
    In the event of any significant or material conflict between the proposal and City Plan 2000, the Appellant concedes it would be difficult to identify public interest grounds sufficient to justify approval notwithstanding any such conflict, but says the evidence demonstrates clearly that the proposal complied with all performance criteria so that no question of conflict arises.
  1. [66]
    In the event of a conflict, however, the Appellant relies upon matters identified by Mr Harvey in the joint report.[67]  The matters constituting sufficient advancement of public interest to justify this approval notwithstanding the conflict:
  1. (a)
    the SUDs facilitate Infill development close to multipurpose centres and near public transport in accordance with DEO’s 3 and 4 for the Residential areas of City Plan 2000;
  1. (b)
    the proposed development provides a mix of houses and single unit dwellings supporting the purpose of City Plan 2000 Residential Design – Single Unit Dwelling Code; and
  1. (c)
    despite any conflict in relation to the number of storeys of the proposal, the SUDs generally accord with the applicable three dimensional building envelope parameters of the Dwelling House (Small Lot) Code that any potential shadowing is in line with expectations of City Plan 2000.

Discussion

  1. [67]
    Having considered all the evidence and submissions of the parties, I have come to the view that, notwithstanding the arguments of the Appellant, the proposal is in conflict with City Plan 2000 as submitted by Council. On balance, I prefer the evidence of Ms Blyth to that of Mr Harvey. I cannot accept his views that the proposal complements the character housing in the area or maintains the rhythm of roof lines. I found Ms Blyth’s approach to be more realistic. Further, accepting that Acceptable Solutions are not the only way to satisfy a Performance Criterion. I found Mr Harvey’s approach to the issues by treating the proposal as, in effect concerning a house, somewhat self-serving for the Appellant. Certainly, developments which, under a new plan, would be compliant, are relevant. But, the fact remains, this proposal is not for a house, but SUDs, and that is the structure under consideration.
  1. [68]
    Ms Blyth accepted that the issues of height per se, shadowing, deprivation of daylight/sunlight, infringement of privacy, were not issues which, of themselves, concerned her. To that list I would add the traffic issues, which, I think, all other things being equal, do not present an obstacle to approval.
  1. [69]
    But an issue of concern to Ms Blyth, and to me, is that of the bulk and scale of the proposal, manifested by the 3 storey building, with the third storey above the eave line of adjoining properties. That feature contributes to the proposal being out of character with the area. Ms Blyth accepted there were architectural features and materials used which would assist in the proposal being some way towards complementary of the character of the area, but not sufficient to address the issue of bulk and form..
  1. [70]
    Despite the opinion of Ms Blyth, that issues of shadowing and others mentioned above would not, of themselves be obstacles to approval, I mention particularly Performance Criterion P1, which not only speaks of minimising the amenity impacts on neighbouring dwellings, but also to building size, bulk and height. I consider that the building would be overbearing to neighbouring dwellings, notwithstanding that issues of shadowing, access to sunlight and daylight and privacy may not be issues of concern. The point I make is that P1 must be read disjunctively to include all elements to be satisfied.
  1. [71]
    Charlton Street, particularly in the area around the proposal, has a unique character which the proposal would be incompatible with. No doubt, in another area compatibility could be achieved, but not in Charlton Street, in my view.

City Plan 2014

  1. [72]
    I consider the arguments of Council as to the proposal’s conflict with CP2014 to be well founded. There is no need for me to repeat them. . Mr Harvey himself accepted that the 2014 scheme did not encourage the proposal.[68]  Given these not insignificant conflicts, I consider the 2014 plan should be taken into account to some extent. It does not, in my view, assist the Appellant much, if at all.

Grounds to Justify Approval notwithstanding Conflict with City Plan 2000

  1. [73]
    In the result, I regard the conflict with City Plan 2000 as not insignificant. It would, in my view, forever change the character of Charlton Street. As to whether there are any sufficient grounds to justify approval under SPA s 326(1)(b), any such ground must be of public interest, excluding the personal circumstances of the Applicant, owner or interested party.[69] 
  1. [74]
    The Appellant sensibly conceded that it would be difficult to identify any public interest grounds sufficient to justify approval in the event of a conflict I have found, but did rely on some grounds articulated by Mr Harvey, set out above. I do not consider that any of those grounds are sufficient to warrant approval notwithstanding the conflict.

Decision

  1. [75]
    The appeal is dismissed.

SCHEDULE A - Relevant extracts of City Plan 2000

Chapter 3: Areas and Assessment Process

5.3 Character Residential Area

5.3.1 Intent

The Character Residential Area will primarily accommodate pre–1946 houses. New houses, single unit dwellings or multi–unit dwellings will incorporate the pre–1946 dwelling in the development wherever possible and will reflect pre–1946 architectural themes. Additional development will be at low intensity and at a compatible scale to existing dwellings, at a rate of 1 dwelling per 300m2 of site area and a strict adherence to a maximum gross floor area of 50%. Minimum new lot size will be 400m2 except where associated with a single unit dwelling. No provision is made for the subdivision

of existing or approved houses. Single unit dwellings are intended to facilitate appropriate density and provide increased housing choice within neighbourhoods, whilst minimising impacts to residential amenity. Single unit dwellings also encourage the retention of character houses by allowing their retention on a very small freehold lot and their integration in development sites. All Character Residential Areas are included in the Demolition Control Precinct. Building envelopes for houses on small lots are defined so that amenity impacts to nearby dwellings and their private open spaces are minimised, in terms of maintaining access to sunlight, daylight and privacy. The building envelopes also seek to increase safety from fire hazard, maximise private landscaped space for new houses and avoid overbearing development that would occur if the bulk and setbacks of houses were out of scale or character with houses on adjoining lots.

5.3.2 Desired Environmental Outcomes

  1. 1.
    Low density living environments predominantly comprise separate houses of no more than 2 storeys and strongly reflect the City’s pre–1946 housing character.
  2. 2.
    High quality, intact traditional housing is protected. Limited new houses, single unit dwellings and multi– unit dwellings are accommodated that complement traditional housing forms.
  3. 3.
    Neighbourhoods have a distinctive subtropical character where low rise buildings are set in green landscaped areas. Natural features such as creeks, gullies, waterways and vegetation are retained.

Chapter 5 – Residential Design – Single Unit Dwelling Code

3 Purpose

As the Areas to which this Code applies are intended to contain a mix of houses, single unit dwellings and multi–unit dwellings, the purpose of this Code is to effectively manage impacts of the development on neighbours while:

  • ensuring development in the Character and Low–medium Density Areas is compatible in scale, bulk and design with neighbouring dwellings and is not overbearing to neighbouring dwellings
  • ensuring that amenity impacts to neighbouring dwellings are minimised, in terms of overshadowing, privacy, and access to sunlight and daylight
  • retaining pre–1946 dwellings in Character Residential Areas, with new development at low intensity complementing pre–1946 architectural themes
  • retaining pre–1946 dwellings or ensuring new development in Demolition Control Precincts complements pre–1946 architectural themes
  • encouraging single unit dwelling development that provides a pleasant living environment for its occupants encouraging attractive buildings of a size, intensity and appearance consistent with the Medium and High Density Residential Areas
  • facilitating single unit dwelling development that is up to 4 storeys in height in the Medium and High Density Residential Area, spread across the site and orientated towards the street
  • encouraging low cost and special needs housing by allowing an increase in gross floor area and a reduction in on–site car parking where the low cost and special needs housing does not compromise local amenity, is secured for at least 10 years, and is administered by a housing cooperative, Government or Council agency or charitable organisation.

4Part A—Area based Performance Criteria and Acceptable Solutions

4.1Single unit dwelling in Character Residential Areas and Low-medium Density Residential Areas

Performance Criteria

Acceptable Solutions

P1 Single unit dwellings minimise amenity impacts

to neighbouring dwellings and their open space

in terms of:

  • access to sunlight and daylight
  • privacy

Building size, bulk and height must be

consistent with the low density nature of the locality (if in the Character Residential Area) or low to medium density nature of the locality (if in the Low–medium Density Residential Area)

Building size, bulk and height must not create overbearing development for neighbouring dwellings and their open space

Buildings include an appropriate balance of

built form and landscaped open space

Buildings in the Character Residential Area

must be of a domestic scale and be consistent in height with neighbouring houses. Any additional part of a building over 8.5m and/or 2 storeys in height above ground level must not:

• result in a loss of views or outlook

• reduce visual amenity of an area, particularly

where the site is on a prominent ridgeline

A1.1  Gross floor area (calculated as an aggregate

of all single unit dwellings only on the site)

is no more than:

Where in the Character Residential

Area:

• 0.5 times the site area

• the number of dwellings does not

exceed 1 per 300m2 of site area

Where in the Low–medium Density

Residential Area:

• 0.5 times the site area

OR

• 0.6 times the site area where the site has

frontage to a road with a reserve width

of 15.5m or more, and:

• any part of the site is within 200m radius

of any pedestrian entry to a railway or

busway station, or

• any part of the site fronts an arterial

route, or

• no part of the site is next to a house

(where no approval for multi–unit

dwelling or single unit dwelling exists)

Note: Gross Floor Area may exceed the above percentages on an individual lot providing that the total GFA of all single unit dwellings, when calculated over all proposed single unit dwelling lots, does not exceed the maximum

5 Part B—General Performance Criteria and Acceptable Solutions for all single unit dwellings

Performance Criteria

Acceptable Solutions

P11 Vehicle parking and access must be sufficient, safe and convenient for residents and visitors.

Car accommodation and driveways must not dominate the appearance of the building when viewed from the street

A11.1 Car accommodation for each dwelling:

• is contained on the lot (existing or

proposed)

• is provided for a minimum of 2 cars, 1

of which is a visitor space (ie. there are

to be no communal/shared visitor spaces

on a site)

• is designed in accordance with Figure h

(tandem design) or Figure i (double width

garage)

• may be roofed, provided that 1 space is a

carport

A11.2 Where a double width design, a maximum of only one garage is provided (whether or not also containing a carport) and has a maximum total width of 6m or 50% of the frontage width, whichever is the lesser

Note: on any lot having frontage less than 12m, compliance with this Acceptable Solution allows only for provision of a single car garage or a double car garage in tandem

Refer to Figure i

A11.3 Garages are recessed behind the main face of the building. In the case of a double

storey building, the garage is recessed a

minimum of 1 metre beneath the upper

storey and the recess is sufficient to allow

for overshadowing of the garage

Refer to Figure j

OR

Garages are contained underground or

underneath a building and are no more than

1m above natural ground level at any point

A11.4 Crossover width is a maximum of 3m for a dwelling with its own direct lot access to the street

OR

Reciprocal access way/s are provided to

serve a maximum of 2 dwellings and have a

minimum width of 5m

A11.5 Vehicle parking structures are designed and located to be compatible with overall building design in terms of height, roof form, detail, material and colours

A11.6 Where provision of car accommodation is constrained by a steeply sloping site (a slope of 1 in 4 or greater between the front boundary and building setback), a maximum of a double carport (no garages) closer to the road alignment than the dwelling is acceptable

A11.7 Vehicle movement areas are broken up by alternative materials, patterns, or threshold treatments

Chapter 5 – Residential Design – Character Code

4.2 Compliance with the Residential

Design—Character Code

Compliance with the Residential Design—Character Code will be achieved in one of two ways:

  • Use of traditional materials as detailed in P1, or
  • Use of contemporary materials with character elements as detailed in P2 to P7 inclusive

Part 2 - Use of contemporary materials with character elements

Performance Criteria

Acceptable Solutions

P2 The building height and bulk must

complement the predominant scale of pre–1946

houses nearby in the street

Refer to Figure g

For houses (including small lot houses):

A2.1 Where the topography is generally flat, the

eaves height is within 20% of adjoining

eaves heights

OR

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

Refer to Figures g and h

P5 Roof form must reflect traditional roofs in that

part of the Demolition Control Precinct

A5.1 Predominant roof forms will include one

or more of a combination of pyramids, hips

or gables of a similar pitch and proportions

to those of pre–1946 houses nearby in the

street

In a sloping street where the rhythm of

stepping levels and roofs is a characteristic of

the streetscape, that stepping is maintained

Refer to Figure c

A5.2 The building includes eaves that are of

similar proportions to eaves on pre–1946

houses nearby in the street

A5.3 Roof materials are similar to the roof

materials on pre–1946 houses nearby in the

street

SCHEDULE B - Relevant extracts of City Plan 2014

Dwelling house (small lot) code

Table 9.3.8.3.A—Criteria for self-assessable and assessable development

PO2

Development is of a bulk and scale that:

(a) is consistent with and complements the built form and front boundary setbacks prevailing in the street and local area;

(b) does not create overbearing development for adjoining dwelling houses and their private open space;

(c) does not impact on the amenity and privacy of residents in adjoining dwelling houses;

(d) does not result in the loss of significant views or outlook of adjoining residents;

(e) provides for natural light, sunlight and breezes.

Note—In interpreting the building height elements of built form in PO2(a) ‘prevailing in the street and local area’ means the building height of more than 50% of the dwelling houses in the same zone as the subject site and within 35m of any point of the street frontage of the subject site.

AO2.2

Development in the:

  1. (a)
    Low density residential zone, Character residential zone, 2 storey mix zone precinct of the Low–medium density residential zone, 2 or 3 storey mix zone precinct of the Low–medium density residential zone, Rural residential zone, Environmental management zone, Rural zone or Emerging community zone results in a maximum building height of 7.5m above ground level at side and rear walls, increasing at no more than 30 degrees to a maximum building height of 9.5m above ground level and:

(i) 2 storeys; or

(ii) 1 storey if the development also includes a space that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above that contains only a bathroom, shower room, laundry, water closet, or other sanitary compartment; or

(b) Up to 3 storeys zone precinct of the Low–medium density residential zone or in the Medium density residential zone results in a maximum building height of 9.5 above ground level at side and rear walls, increasing at no more than 30 degrees to a maximum building height of 11.5m above ground level and:

(i) 3 storeys; or

(ii) 2 storeys if the development also includes a space that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above that contains only a bathroom, shower room, laundry, water closet, or other sanitary compartment.

Note — The lowest point forming part of the maximum building height identified in AO2.2(a) being 7.5m or AO2.4(b) being 9.5m is determined by the applicable setback identified in AO2.4(a) or AO2.4(c), but not AO2.4(b) in this code.

Editor's note — For example, the point at which the maximum building height of 7.5m above ground (as per AO2.2(a) provides) is determined to be setback 1m if the adjoining lot has a dwelling house with habitable spaces setback from the shared boundary. If the same adjoining dwelling had a built to the side boundary non-habitable garage (as provided for by AO2.4(b)), the point at which the maximum building height of 7.5m above ground is measured from would remain 1m.

Editor's note — In interpretation of what maximum building height is provided for by AO2.2(a) or (b), the width of a subject lot will determine the maximum building height by way of the point either where 30⁰ planes rising from opposite boundaries meet or the maximum building height identified in AO2.2 (a) or (b), whichever is the lesser is the maximum building height.

AO2.5

Development results in a minimum rear boundary setback that is:

(a) 6m, where on a lot with an average depth of more than 25m; or

(b) on a lot with an average depth of 25m or less:

(i) 3m, for a wall up to 4.5m high;

(ii) 4.5m, for a wall over 4.5m high.

Chapter 2: The Strategic Plan

3 The Desired EnvironmentalOutcomes (DEOs) and Strategies for the City

3.2.2.1 Enhance social diversity,choice and accessibility through:

(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

…

3.3.2.1 Support the preferred pattern of urban settlement established by the Regional Framework for Growth Management for South East Queensland 1998 through:

(b) efficiency—more compact, self–contained, smart, networked communities that use and reuse land and other resources more efficiently and restrict urban sprawl

…

3.3.2.2 Require development to enhance the amenity, environmental and cultural contexts of its locality through:

(c) enhancing character—development that is sympathetic to the character of surrounding areas

…

3.5.2.1 Integrate the Movement System with the land use pattern to maximise efficient use and enhance accessibility of the Movement System through:

(a) housing density—a variety of housing densities that will help to reduce urban sprawl

…

3.5.2.2 Promote a pattern of development that reduces private motor vehicle dependency and increases potential for use of public transport, cycling and walking through:

(a) public transport usage—encouraging development in locations that support the accessibility, convenience and efficiency of public transport, including higher density housing and mixed use development in Centres and other locations well served by public transport

…

4.2 Residential Neighbourhoods

4.2.1 The challenge

Since the late 19th century the City’s urban structure has followed the pattern of tram lines and railways with housing along transport spines and ridges. The City was not sewered comprehensively until the 1970s. Lot sizes were large to cope with septic disposal and residential density remained very low. In the 1960s and 1970s, redevelopment and infilling destroyed a considerable amount of what is seen today as valuable character housing.

The pressures of rapid growth in the 1980s and 1990s have seen a significant shift in the nature and pace of the City’s urban development. Increasing interest is shown in inner city living with its lower transport costs and better access to the growing range of urban attractions and facilities. This trend has been assisted by a renewed interest in and focus on the Brisbane River.At the same time, enormous growth has occurred in outlying residential areas throughout South East Queensland using the City as an employment base and putting great pressure on transport infrastructure.

In common with the rest of Australia, the composition of households is changing through changing economic conditions, lifestyles and demographic trends. If people are to be able to choose the kind of dwelling that suits their needs at different times in their life, housing provision must reflect these changes.

A major challenge in developing areas is land fragmentation. Large areas of Brisbane’s fringe have been subdivided into small holdings and this is a major impediment to orderly growth, efficient provision of infrastructure and planning for new neighbourhoods. In this context of rapid growth and changing lifestyles, the challenge for the City is to ensure an efficient supply of residential land and housing that can:

  • provide a range of housing choices to meet the widening spectrum of needs and desires of the community
  • support the diversity of people and activities that contribute to a broad social mix in the City and therefore to its character and livability
  • encourage affordable housing through the retention or provision of low cost housing, special needs housing and caravan parks.

The critical elements are livability, residential character, safety, servicing and accessibility—developing a sense of community.

The key issue raised by the community in the preparation of the B2011 Plan is the desire to protect the City’s unique character. This is addressed in the Character Housing and Commercial Character Building provisions, the Green Space Area provisions and the Emerging Community Area provisions in Chapter 3.

4.2.2 The response

Residential neighbourhoods are the most extensive of the City structure elements. They contain the elements that help make Brisbane so livable: the residential areas and related amenities and facilities such as convenience shopping, local parkland, schools, churches, hotels and clubs.

The components of the residential neighbourhoods strategy are to:

  • meet realistic expectations of future amenity
  • ensure housing choice and affordability
  • promote increases in density near high quality public transport and close to the City Centre
  • maintain character
  • provide access to services and facilities
  • maintain lands of environmental or scenic value
  • discourage isolated subdivisions in developing areas and encourage land amalgamation and forward planning of neighbourhoods
  • provide for some mixed use development
  • coordinate the orderly and cost effective provision and augmentation of infrastructure.

4.2.2.1 Meeting realistic expectations of future amenity

People should be able to choose their residential location with realistic expectations for the future amenity of the area. The Plan’s strategic directions in this regard are to:

  • prevent intrusion of development that could seriously detract from residential amenity
  • allow development that complies with the Plan
  • mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy
  • ensure new residential development contributes to pleasant living environments and is designed to integrate with, rather than be segregated from, existing development in the area
  • avoid through traffic in residential locations
  • ensure residential neighbourhoods are adequately buffered to mitigate impacts of industrial and other non–residential uses
  • protect views from the impacts of development only where nominated in a Local Plan, or where development exceeds the relevant Code’s acceptable solution for building height, and as a result detracts from views from nearby properties.

These community expectations also need to be balanced with expectations of housing choice to meet resident needs during all stages of their life and to meet different lifestyle choices. These choices are discussed below in 4.2.2.2.

4.2.2.2 Housing choice and affordability

The City’s residential neighbourhoods are to provide sufficient housing choice to enable residents to remain in their neighbourhood through all the stages of their life if they wish. Housing choice requires a variety of housing types and tenures to be available across the City and to enable access to housing for a wide range of income levels.

4.2.2.3 Higher density housing near public transport

Higher density housing in residential neighbourhoods is to be in locations that can be efficiently served by high quality public transport or that are close to the City Centre. Higher density housing is encouraged in and around centres and institutions with large numbers of clients, employees or students and services and facilities. This forms part of a proactive approach to planning for mixed use, higher intensity nodes well integrated with the Movement System, particularly pedestrian, bike and public transport networks.

4.2.2.4 Maintaining character

Each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the City, topography, vegetation, social composition, history and proximity to a local centre. Development should respect and be compatible with the local character.

In older suburbs, the unique character is derived mainly from the topography, urban layout and ‘timber and tin’ architecture. Much of this ‘timber and tin’ housing will remain and new development will reflect traditional design elements while allowing for innovative design responses.

Whilst ‘timber and tin’ housing is a distinctive feature of Brisbane’s traditional building character, other less common housing styles and materials, such as masonry construction, are important and worthy of retention.

Provisions apply where pre–1946 buildings will be retained or new dwellings reflect pre–1946 architectural themes.

Demolition Control Precincts are those locations in older suburbs that contain pre–1946housing with distinctive traditional architecture.

A precinct contains either:

  • a minimum group of 3 houses, and at least two thirds of the precinct contains pre–1946 houses

OR

  • a building built prior to 1900

OR

  • properties of local significance identified in a Local or Neighbourhood Plan.

Demolition Control Precincts also contain non– residential buildings or structures, which contribute to the character of the area and have a connection with the local community. These include a variety of building types such as shops, halls, churches, hotels, schools, post offices, banks, police stations, fire stations and hospitals. These buildings exhibit some, but not all of the following characteristics:

  • they demonstrate a community focus
  • they contribute to the character of the area where they provide or have provided a variety of services to the community
  • they are generally larger in scale than a residential building
  • they are generally prominently located and often have landmark qualities
  • they are indicative of the aesthetic styles and construction techniques of their construction date
  • they assist in providing an understanding of the development of the area.

Through Local Plans, Council will consult with residents of the older suburbs in progressively amending the Plan to better protect pockets of traditional houses.

In newly developing suburbs, development is to support the emergence of an identifiable local character, considering aspects such as housing, vegetation, streetscapes, architectural styles, community facilities, open space, places to meet and socialise, bikeways, pedestrian facilities and local features.

Chapter 3: Areas and Assessment Process

5 Residential Areas

5.1.1 Desired Environmental Outcomes The following DEOs apply to all Residential Areas. Refer also to DEOs for each specific Area.

  1. 1.
    A range of housing types, sizes, tenures and affordability is provided throughout the City to enable residents to remain in their neighbourhood for their entire life if they wish.

…

  1. 3.
    Housing is predominantly low density, with higher densities in or near Multi–purpose Centres and near public transport.

…

  1. 5.
    Dwellings have reasonable access to daylight, sunlight and breezes and have privacy.

5.3 Character Residential Area

5.3.1 Intent

The Character Residential Area will primarily accommodate pre–1946 houses. New houses, single unit dwellings or multi–unit dwellings will incorporate the pre–1946 dwelling in the development wherever possible and will reflect pre–1946 architectural themes. Additional development will be at low intensity and at a compatible scale to existing dwellings, at a rate of 1 dwelling per 300m2 of site area and a strict adherence to a maximum gross floor area of 50%. Minimum new lot size will be 400m2 except where associated with a single unit dwelling. No provision is made for the subdivision of existing or approved houses.

Single unit dwellings are intended to facilitate appropriate density and provide increased housing choice within neighbourhoods, whilst minimising impacts to residential amenity. Single unit dwellings also encourage the retention of character houses by allowing their retention on a very small freehold lot and their integration in development sites.

All Character Residential Areas are included in the Demolition Control Precinct.

Building envelopes for houses on small lots are defined so that amenity impacts to nearby dwellings and their private open spaces are minimised, in terms of maintaining access to sunlight, daylight and privacy. The building envelopes also seek to increase safety from fire hazard, maximise private landscaped space for new houses and avoid overbearing development that would occur if the bulk and setbacks of houses were out of scale or character with houses on adjoining lots.

5.3.2 Desired Environmental Outcomes

  1. 1.
    Low density living environments predominantly comprise separate houses of no more than 2 storeys and strongly reflect the City’s pre–1946 housing character.
  2. 2.
    High quality, intact traditional housing is protected. Limited new houses, single unit dwellings and multi–unit dwellings are accommodated that complement traditional housing forms.
  3. 3.
    Neighbourhoods have a distinctive subtropical character where low rise buildings are set in green landscaped areas. Natural features such as creeks, gullies, waterways and vegetation are retained.

Part 6 – Zones

6.2.1.5 Character residential zone code

  1. (2)
    The local government purpose of the code is to:

…

  1. (b)
    Provide for low density suburban and inner-city living through the development of 1 or 2 storey dwelling houses comprising predominantly existing houses built in 1946 or before and infill housing that incorporates any housing built in 1946 or before in the development, and reflects and complements the city’s traditional building character of housing built in 1946 or before through compatible form, scale, materials and detailing.

…

  1. (e)
    Ensure that development occurs on an appropriately sized and configured lot and is of a form and scale that reinforces a distinctive subtropical character of low rise buildings set in green landscaped areas.

…

  1. (4)
    Development location and uses overall outcomes are:

…

  1. (b)
    Development in the Infill housing zone precinct facilitates a mix of existing dwelling houses and new housing choices including dual occupancy, multiple dwellings, rooming accommodation, residential care facilities and retirement facilities which:
  1. (i)
    comply with the site density, building height, number of storeys and setback requirements of the Traditional building character (design) overlay code and the Multiple dwelling code;
  2. (ii)
    are sensitively integrated with and located between or behind existing dwelling houses built in 1946 or before and on appropriately sized lots.

…

  1. (5)
    Development form overall outcomes are:
  1. (a)
    Development for a residential building is of a height, bulk, scale and form which is compatible with the traditional building character of the Character residential zone and consists of buildings of 1 or 2 storeys in height.

…

  1. (c)
    Development provides that a new building or extension of a building reflects the traditional building character prevalent within the Traditional building character overlay in accordance with the Traditional building character (design) overlay code.

…

  1. (e)
    Development of a dwelling house on a small lot comprising a new premises or an increase in gross floor area of an existing premises is located within a defined building envelope that:
  1. (i)
    maximises the retention of backyard spaces as private landscaped space;
  2. (ii)
    avoids overbearing development involving bulk or setbacks which are inconsistent with the character of a dwelling house on adjoining lots.

…

  1. (7)
    Infill housing zone precinct overall outcomes are:

…

  1. (b)
    Development provides that a new dwelling house, dual occupancy or multiple dwelling:

(i) is no more than 2 storeys in height;

…

(iii) is compatible in scale and design with existing dwellings built in 1946 or before;

(iv) reinforces the traditional building character of the Infill housing zone precinct.

  1. (c)
    Development achieves a maximum dwelling yield of one dwelling per 300m2 of site area.

Footnotes

[1] Exhibit 3 Joint Planning Report 198 2015

[2]Exhibit 3 joint planning report, p 13.

[3]Exhibit 3, p 36 at para 7.2.

[4]Exhibit 3, p 4 at para 3.2.5.

[5]Exhibit 4.

[6]Exhibit 2, p 149

[7]Exhibit 2, p 220.

[8]Ibid p 211.

[9]Ibid p 213.

[10]T2.85.19.

[11]Ibid p 148.

[12]Ibid p 77, para 5.4.2.

[13]Ibid p 122.

[14]Ibid p 208.

[15]Ibid p 209.

[16]Ibid p 221

[17]Ibid p 223; Lot 2 is 230m² and Lot 3 is 180m² - see Exhibit 1, pp 50 and 208

[18]See City Plan 2000 Residential Areas DEOs 3 and 4 – Exhibit 2, p 72

[19]Ibid p 217

[20]See Architectural Drawings DA121 and DA150, Exhibit 1 Tab 11

[21]Exhibit 4

[22]Exhibit 2, pp 213 and 217

[23]Exhibit 3, Attachment B sheet 2 photo 6.

[24]Exhibit 3, p 22 para 6.2.4. 

[25]T2.50.30.

[26]Exhibit 3, p 22 para 6.2.6; p 28 para 6.5.6.

[27]T2.64 – T2.66.

[28]Exhibit 3 Attachment D.

[29]Exhibit 2, p 211.

[30]Exhibit 2, p 221.

[31]See also Ms Blyth’s opinion Exhibit 3, joint report para 6.2.12.

[32]Exhibit 4, Attachment D; para 2.1.5.

[33]T2.51.32.

[34]Exhibit 3, para 6.4.3.

[35]Exhibit 3, paras 5.11.1 and 5.11.2.

[36]T2.78.11-45 (XN) and T3.7.4-10 and T3.8.10-20 (XXN).

[37]T2.78.15.

[38]T3.7.4.

[39]Exhibit 1, p 222.

[40]Exhibit 2, p 122.

[41]Exhibit 13.

[42]RL21.670 - RL2460 = 1.21 metre – Attachment D, Exhibit 4.

[43]RL21.670 - RL20700 = 0.97 metres. 

[44]T2.86.30-32.

[45]T2.72.16-41.

[46]Exhibit 2, p 217.

[47]The above evidence by reference to transcript shows Mr Harvey relying upon Exhibit 2, p 217 diagram whereas the submissions refer to Exhibit 2, p 127 diagram (c) which shows likewise a sloping street.  Nothing turns on this in my view.  They are the same diagram in substance.

[48]Appellant’s written submissions paragraph 49.

[49]Page 23.

[50]Exhibit 3, p 24 at para 6.2.4.

[51]T2.34.25 to T2.35.32.

[52]Exhibit 2, p 127.

[53]Appellant’s written submissions, p 13 footnote 31.

[54]T3.8.42 to T3.9-15.

[55]T3.13.19-25.

[56]Joint report Exhibit 3, para 6.5.8.

[57]T3.25.11-32.

[58]Ms Blyth agreed with the 1 metre measurement – T3.12.32.

[59]See drawing DA124 - Exhibit 1, p 222.

[60]T3.17.29-33.

[61]Exhibit 4, para 2.3.6.

[62]Singh v Beaudesert Shire Council [2004] QPELR 16 and Maher v Hervey Bay City Council [2007] QPELR 123.

[63]City Plan 2014 Character Residential Zone Code, paragraph 6.2.1.5(4)(b) – Exhibit 2, p 208.

[64]Exhibit 2, p 127.

[65]Ibid p 217.

[66]I think there is an error in paragraph 91 of the Appellant’s written submissions.  The second last line refers to ‘it militates against refusal’.  I think ‘refusal’ should be ‘approval’.  See for instance paragraph 92(d), middle line.

[67]Exhibit 3, paragraph 6.11.2.

[68]T2.63.33.

[69]SPA Schedule 3 definition “grounds”.

Close

Editorial Notes

  • Published Case Name:

    De Marco v Brisbane City Council & Ors

  • Shortened Case Name:

    De Marco v Brisbane City Council

  • MNC:

    [2015] QPEC 55

  • Court:

    QPEC

  • Judge(s):

    Searles DCJ

  • Date:

    13 Nov 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
Maher v Hervey Bay City Council [2007] QPELR 123
2 citations
Jump To
Cite 1 - [2007] QPELR 123
Cite 2 - [2007] QPELR 123
Singh v Beaudesert Shire Council [2004] QPELR 16
2 citations
Jump To
Cite 1 - [2004] QPELR 16
Cite 2 - [2004] QPELR 16

Cases Citing

Case NameFull CitationFrequency
Gerhardt v McNeil [2016] QCA 207 1 citation
1

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