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Flanders v Brisbane City Council[2016] QPEC 46

Flanders v Brisbane City Council[2016] QPEC 46

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Flanders & Others v Brisbane City Council [2016] QPEC 46

PARTIES:

KERRY ALLAN FLANDERS, DOREEN OMIROS, ROSS VIVIAN HAUPT, JEANNINE ANN HAUPT, KENNETH BRUCE MCDONALD, HEATHER KERREN MCDONALD, STEWART JAY HOWSON, DONNA MAREE HOWSON, KEVIN ARTHUR TAYLOR AND SUZANNE BERNADETTE TAYLOR

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

And

JAM PROPERTY GROUP QLD PTY LTD

(ACN 163 549 308)
(Co-Respondent)

FILE NO/S:

1919 of 2015

DIVISION:

Planning & Environment

PROCEEDING:

Hearing

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

1, 4, 8, 10 December 2015, 22, 25 January 2016, further submissions received 24 March 2016, 1 and 6 April 2016

JUDGE:

Rackemann DCJ

ORDER:

The appeal will be dismissed. The further hearing will be adjourned for a consideration of conditions of approval.

CATCHWORDS:

PLANNING AND ENVIRONMENT – submitter appeal against approval of multi-unit development – the South East Queensland Regional Plan 2009 – City Plan 2000 – City Plan 2014 – height, bulk, scale, density/intensity - open space, landscaping and tree retention – overshadowing and access to daylight – whether amenity conflict and grounds

COUNSEL:

M. Batty for the appellant

T. Trotter for the respondent

J. D. Houston for the co-respondent

SOLICITORS:

Connor O'Meara Solicitors for the appellant

Brisbane City Legal Practice for the respondent

Colin Biggers & Paisley for the co-respondent

TABLE OF CONTENTS

The Site and Locality

The proposed development

The statutory framework

The issues

Planning documents

The South East Queensland Regional Plan 2009 (SEQRP)

City Plan 2000

City Plan 2014

Height, Bulk and Scale (including density/intensity) and consequent amenity impacts...9

Open space, landscaping and tree retention

Overshadowing and access to daylight

Conflict and Grounds

  1. [1]
    This appeal is brought by adverse submitters against the respondent’s decision to approve the co-respondent’s application for a development approval to facilitate a multi-unit residential development on a 5474m² site situated at 40 Lang Street Sunnybank Hills. Two other appellants (the Karanges) withdrew from the proceeding prior to the hearing.

The Site and Locality

  1. [2]
    Sunnybank Hills is a predominantly residential suburb. It once featured large lots and some farming activities, but there has been an inevitable evolution over time. Residential development across the suburb is now predominantly detached housing at more conventional densities and some multi-unit developments. As Mr Schomburgk (the town planner retained by the co-respondent) noted in the joint town planning report, the area is now well serviced with shops, schools, public transport and other suburban amenities. Some larger lots however, still remain. The subject site is one of those and adjoins some others. Residential development in the area is far from uniform in its nature or density/intensity.
  1. [3]
    The site lies in a block bounded by Lang Street to the south, Stones Road to the east, Beenleigh Road to the north and Jackson Road to the west. The site is a ‘battle axe’ or ‘hatchet’ shaped parcel with a frontage, to the south, to Lang Street of 14.35m, which includes a 6 m truncation, leaving an effective driveway width of 8.35m. The driveway ‘handle’ is approximately 35m long, behind which the parcel opens out to a rectangle of approximately 60 m wide and 86 m deep. The site:
  1. (i)
    is currently improved with a single dwelling house;
  1. (ii)
    is vegetated;
  1. (iii)
    falls from Lang Street
  1. [4]
    To the immediate east of the subject site is a multi-unit development known as “Sunnybrae Villas”, comprising 56 units, in 1 and 2 storey buildings, over a site area of 1.9 hectares. The complex extends from Lang Street in the south through to Beenleigh Road, with its primary frontage to Stones Road.
  1. [5]
    To the immediate west are three allotments with detached houses, with areas of 1,005m² (32 Lang Street), 2092m²(34 Lang Street), and 2643m² (36 Lang Street), respectively. The latter 2 are served by easements running parallel to the western boundary of the subject site. There is existing vegetation within the easement area.
  1. [6]
    Further to the west, many of the larger lots have been subdivided into smaller parcels (700-800m²), with a series of battle-axe lots and reciprocal easements for access from Jackson Road or Lang Street. Still further west, across Jackson Road, is conventional residential development.
  1. [7]
    To the immediate south of the subject site and fronting Lang Street are 2 allotments of 1,107m² (42 Lang Street) and 704m² (44 Lang Street) respectively. Further south, on the opposite side of Lang Street, is what is described by the town planners as conventional residential development, as well as “Jackson Rise”, a one and two storey multi-unit development on the corner of Jackson Road and Lang Street, containing 45 units in an area of 1.34 hectares. The topography rises to the south, and development there is generally more obvious than any potential similar development would be on the subject site.
  1. [8]
    To the north of the subject site are houses on larger lots, ranging in area from about 2,800m² to over 5,000m², many of which have frontage to Beenleigh Road. The houses on these lots are generally set well back from that road.

The proposed development

  1. [9]
    The proposal before the respondent involved some 30 units in 12 separate buildings of which 8 would have been duplexes, 2 of which would have been triplexes with the remaining 2 containing 4 dwellings each. The proposal was amended, on 2 occasions, to address issues raised by the appellants. The final amended plans now propose 26 three bedroom units in 12 buildings, 10 of which are to be duplexes with 2 triplexes. Further, by reason of the combined effect of the amendments:
  1. (a)
    GFA is reduced to 2833 m² or 51.7% of site area (originally 57%)
  1. (b)
    site cover is slightly reduced to around 37%
  1. (c)
    private open space is increased to 1096 m² or about 20% of the site area whilst communal open space is increased to 557.8m² or about 10.1% of the site area. Combined open space is therefore just over 30% (compared with less than 26% previously)
  1. (d)
    some balconies/verandas in the original plans were removed to address privacy issues
  1. (e)
    car parking has been reduced to 50 spaces (to 38 resident spaces and 12 visitors) from 56 originally.
  1. (f)
    all units are now to be 3 bedrooms (previously 4 were to be 2 bedrooms).

The statutory framework

  1. [10]
    The co-respondent bears the onus in this appeal. Its development application (as amended) is to be assessed pursuant to the provisions of the Sustainable Planning Act 2009 (“SPA”); in particular:

S 329(1) The assessment manager’s decision must not conflict with a relevant instrument unless –

  1. (a)
    …
  1. (b)
    there are sufficient grounds to justify the decision despite the conflict.
  1. [11]
    As the application involved impact assessment, it is to be assessed, to the extent relevant, against the matters identified in s 314(2) of SPA and having regard to the matters in s 314(3) of SPA.
  1. [12]
    The planning scheme at the time the development application was under was City Plan 2000. That was superseded by City Plan 2014 on 30 June 2014. Relevantly, s 495 SPA provides:
  1. (1)
    An appeal is by way of hearing anew
  1. (2)
    However, if the appellant is the applicant or a submitter for a development application, the Court –
  1. (a)
    must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate; and…
  1. [13]
    At the time of lodgement of this application, the then draft Brisbane City Plan 2014 had been publicly notified. It was at a very advanced stage (it came into effect some few days after this application was properly made) and now guides development in this area. It has been in force for some time and deserves significant weight.
  1. [14]
    Mr Buckley (the town planner engaged by the appellants) sought to make something of the fact that the co-respondent chose to make the application in the dying days of City Plan 2000, but was unable to give a convincing explanation as to why, from a planning perspective, that should reduce the weight to be given to City Plan 2014. Ultimately he made it clear that he was not denying that City Plan 2014 should be afforded substantial weight.[1]

The issues

  1. [15]
    The appellants are existing residents of the area. Their remaining issues[2] are summarised as relating to:
  1. (a)
    Bulk, height and scale (including density / intensity of development)
  1. (b)
    Landscaping (including tree retention) and open space
  1. (c)
    Overshadowing and access to daylight
  1. (d)
    Consequent adverse impacts on amenity
  1. (e)
    Conflict with the planning scheme
  1. (f)
    Sufficiency of grounds to approve notwithstanding conflict.

Planning documents

The South East Queensland Regional Plan 2009 (SEQRP)

  1. [16]
    The SEQRP is the pre-eminent planning document for the region. The site falls within the Urban Footprint pursuant to the SEQRP. It is not suggested that there is any conflict with the SEQRP. The co-respondent points to the proposal’s consistency with the SEQRP, particularly with Desired Regional Outcomes relating to a compact urban structure and in relation to efficient use of infrastructure.

City Plan 2000

  1. [17]
    Under City Plan 2000, the land was located within:
  1. (a)
    the Low Density Residential Area (LDRA);
  1. (b)
    the Acacia Ridge/Archerfield Neighbourhood Plan.
  1. [18]
    The provisions of City Plan 2000 of relevance to the subject site included the:
  1. (a)
    Residential Design – Low Density, Character and Low Medium Density Code (“LR Code”);
  1. (b)
    Acacia Ridge/Archerfield Neighbourhood Plan, although the subject site is not within any specific precinct in the Neighbourhood Plan and the Plan’s provisions do not assist with the remaining approval/refusal issues.
  1. [19]
    Under City Plan 2000, acceptable solutions represented the preferred way, but not the only way, of complying with performance criteria contained in codes.
  1. [20]
    The predominant form of development within the LDRA was detached houses, but the Statement of Intent for the LDRA expressly contemplated multi-unit dwelling development on sites of over 3000m². Whilst detached housing would be expected to continue to predominate, reasonable expectations under City Plan 2000 ought to have included the prospect of further multi-unit development in the LDRA, particularly on undeveloped or underdeveloped sites of the size of the subject.

City Plan 2014

  1. [21]
    Under City Plan 2014, the land is included:
  1. (a)
    in the Low Density Residential Zone (LDRZ);
  1. (b)
    in the area subject to the Acacia Ridge/Archerfield Neighbourhood Plan.
  1. [22]
    Under City Plan 2014, the following codes are relevant to the site:
  1. (a)
    the Multiple Dwelling Code (MD Code);
  1. (b)
    the Low Density Residential Zone Code; and
  1. (c)
    the Acacia Ridge/Archerfield Neighbourhood Plan Code.
  1. [23]
    Insofar as codes are concerned, City Plan 2014 contemplates that compliance may be achieved either by the acceptable outcome or by the performance outcome or by compliance with the purpose and overall outcomes of the Code. [3]
  1. [24]
    The purpose of the LDRZC is, in part, to provide for housing types, other than detached houses, “at a house scale to provide housing diversity and offering choice…”[4] Multi-unit development is envisaged within the LDRZ. In that regard, the overall outcomes of the LDRZ include reference to multiple dwellings being accommodated on well located sites over 3000 m².[5] The subject site fits that description.
  1. [25]
    The NPC contains a statement of purpose which described a number of overall outcomes including the following:
  1. (g)
    Development in residential areas provides housing choice and accessible accommodation options.
  1. [26]
    Reasonable expectations under City Plan 2014 should, as in the case of City Plan 2000, contemplate potential multi-unit development on a site such as this.

Height, Bulk and Scale (including density/intensity) and consequent amenity impacts

  1. [27]
    It is these issues which are described in the written submissions for the appellants as ‘critical’. The appellants contend that the proposal is, in effect, an overdevelopment of the site. It is clear from the statements of evidence of those residents who oppose the proposed development, that they see its form and intensity as incompatible with what pleases them about their locality.[6]
  1. [28]
    In expressing their opinions, those residents refer to, amongst other things, the “wide open spaces” created by the remaining large lots (and the consequent separation of built form) and the extent of vegetation. They see this part of the suburb as having a special character and amenity. Reference was made to a “semi-rural” or “semi-agricultural” aspect or “feel” to the locality.[7] It should be acknowledged however that:
  1. (i)
    whilst the locality might have been ‘semi-agricultural’ when, for example, the Flanders moved to the area a quarter of a century ago (apparently there was an avocado farm where Sunnybrae is now developed as well as other small crop farms)[8] and whilst there are still some large allotments in the locality, both the built form and reasonable expectations concerning future development in the locality are dynamic in nature, and influenced by the applicable planning provisions (and changes to those provisions over time);
  1. (ii)
    the locality now features a diversity of residential development, including some multi-unit development. Whilst detached houses on allotments of varying sizes predominate, the 2 multi-unit developments in the immediate locality (Sunnybrae and Jackson rise) are significant.
  1. (iii)
    the locality is not planned as a semi-rural or semi-agricultural area under either City Plan 2000 or City Plan 2014.
  1. (iv)
    the size, location and applicable area/zone designations of the site under both City Plan 2000 and City Plan 2014 mean that reasonable expectations (both for existing residents and for those who carry out development) should include the potential development of the subject site (and other undeveloped or underdeveloped large sites) for multi-unit dwellings. As counsel for the appellants fairly acknowledged[9] “despite what my clients may think, they have to accept that multi-unit dwellings are envisaged in this location”.
  1. (v)
    ultimately, it is not so much the fact that one of the remaining large lots[10] is now proposed to be developed for multi-unit dwellings which is, or should be, controversial so much as the acceptability of the extent and form of that development. So much was effectively conceded by counsel for the appellants.
  1. [29]
    I note that some reference was made (both in the resident’s statements of evidence and in the written submissions on behalf of the appellants) to a “strong sense of community” shared by residents in the locality/neighbourhood. I have no reason to doubt that such a sense exists, but I do not see it as helpful in the resolution of the issues at hand. Counsel for the appellants ultimately conceded[11] that it is not. It would, for example, be unwarranted, unworthy and regrettable to suggest that future residents of multiple dwellings on the subject site would not form part of the community or share a sense of community. One would also hope that, as fellow residents of the locality and neighbours, they would be welcomed into the community, even by those who were opposed to the development in which they come to reside.
  1. [30]
    Under City Plan 2000, the LR Code, in its statement of purpose, sought to, amongst other things, ensure that “new development is compatible in size and design with neighbouring houses”. It included the following performance criteria (and acceptable solutions) for multi-unit dwellings in the LDRA.

Performance Criteria

Acceptable Solutions

P1 Building size and bulk must be consistent with the low density nature of the locality

A1.1 Gross floor area is no more than 0.3 times the site area

A1.2 Building height at any point is no more than 8.5m above ground level and 2 storeys

A1.3 The site area is a minimum of 3,000m2and has a minimum frontage of 40m

P2 Larger developments must integrate with the neighbourhood and form part of the local  street network

A2.1 Development on a site over 3,000m2:

• includes some houses, particularly near road frontages, with the proportion of houses increasing for larger sites

• is connected to and part of the neighbourhood rather than a separate semi–private enclave

• is integrated with the existing or proposed local street network

• provides for legible and direct access for all residents to surrounding and future community facilities in the area such as schools, parks, neighbourhood shops and public transport

• clearly defines public, communal and private open space

 Refer to Figure a

  1. [31]
    Insofar as P2 is concerned, the battleaxe nature of the site, together with the adjoining development means that there is nothing further that can be done in relation to integration of the development with the local street network. Counsel for the appellants limited the alleged conflict to a lack of integration in a character sense.[12]
  1. [32]
    It was pointed out, on behalf of the appellants, that the proposal does not include any houses and so departs from A2.1.[13] That is so, although it should be acknowledged that the battle-axe nature of the site makes provision of houses at the road frontage of the subject site impossible and that there are existing houses which front the street (between Lang Street and the greater part of the southern boundary of the site) such that the proposal will not result in any diminution of the perception of detached houses on the street frontage. Further, as Ms Roughan (the town planner engaged by the respondent) pointed out in the joint planning report[14], the existence of a multi-unit development without any detached houses (Sunnybrae) to the immediate east and the significant separation between the proposed multi-unit dwellings (discussed further below) and the closest detached houses mitigate against the need to include detached dwellings to achieve appropriate integration, in a character sense.
  1. [33]
    It was submitted however, that having departed from A2.1, the proposal should be assessed against P2 and that the proposal otherwise fails to integrate with the neighbourhood in a character sense. That is discussed later.
  1. [34]
    Insofar as P1 and the relevant acceptable solutions are concerned, the proposal has a GFA equivalent to a plot ratio of a little more than 50%. Accordingly, the proposal departs from A1.1 and needs to demonstrate that P1 is met. The reference to gross floor area in A1.1 is of particular significance, because the statement of intent for the LDRA provided, in part, as follows:

“…Multi-unit dwellings will only be allowed on sites over 3000m², at a scale and density commensurate with the Low Density Residential Area. This will be achieved by strict adherence to a maximum gross floor area of 30% of the site area”.

  1. [35]
    There is an obvious tension between the statement of intent, which speaks of “strict adherence” to gross floor area by reference to a 30% plot ratio and the LR code, which provides for that as an acceptable solution only, which represents the preferred way, but not the only way, of complying with the relevant performance criterion. In Cowen v Brisbane City Council[15] Jones DCJ said

“In my view the introduction of the word “strict” requires an approach like that identified … in K Page Main Beach. That is, departures from Acceptable Solutions will be subject to closer scrutiny.”

  1. [36]
    I note that, in his written submissions, counsel for the appellants said, “It is not submitted that simply because the gross floor area…is over 30% that the proposed development must be refused”, but went on to submit that the extent of excess in this case was a “strong indication” that the proposed development is of excessive scale and bulk. It was pointed out that, at about 52%, the proposal marginally exceeds even the figure of 50% which applied in the Low-Medium Density Residential Zone under City Plan 2000.
  1. [37]
    There are at least two things to bear in mind in this regard. First, the extent of excess of the acceptable solution, whilst relevant, is not determinative of compliance or otherwise with the relevant performance criterion.
  1. [38]
    Secondly, the reliance on GFA has however, been overtaken as a planning strategy. In that regard, City Plan 2014 (to which significant weight should be afforded) represents an important departure from the previous reliance placed on GFA ‘limits’ in City Plan 2000. Indeed far from insisting on “strict adherence” to a GFA ‘limit’ based on a maximum plot ratio, City Plan 2014 places no limit, strict or otherwise, on GFA for such development. That the planning strategy, insofar as it relied upon a GFA limit, was abandoned only a matter of days after the subject application was lodged, is significant.
  1. [39]
    The purpose of the MD Code under City Plan 2014, is to be achieved through certain overall outcomes which include that development in the LDRZ “is of an intensity that reflects the lower density form and character of” the zone.[16] Performance outcome (PO52) provides that development in the relevant zone should respect “the intensity and form of the neighbourhood and demonstrates an appropriate site density”. The relevant acceptable outcome (PO52.1) is that development not exceed 1 dwelling per 200m² site area. Given that the site area, is 5474m², PO52.1 would support, as appropriate, up to 27 dwellings on the site. The proposal, at 26 units, equates to 1 dwelling per 210.8 m², which is higher than Sunnybrae or Jackson Rise, but is consistent with reasonable expectations concerning the intensity of development and site density under City Plan 2014.
  1. [40]
    In the circumstances, whilst the GFA of the proposal should not be ignored, the departure from the GFA ‘limit’ under City Plan 2000 does not cause me to conclude that the proposal ought, for that reason, be refused.
  1. [41]
    The site is well in excess of the size referred to in A1.3 of the LR Code. It does not have a 40m frontage, but that is due to its battle axe shape. Detached housing flanks the site access on Lang Street. The site is of generous proportions once one travels past the handle of the battle-axe. The lack of a greater frontage does not, I am satisfied, result in any conflict with the performance criterion or result in any undue adverse impact.
  1. [42]
    Building height was also a matter of contention. Mention was made of Desired Environmental Outcome 1 for the LDRA, which states that “low density living environments predominantly comprise separate houses of no more than 2 storeys”. That provision speaks of what “predominates” which, as the intent of the LDRA states, is predominantly detached houses of 1 or 2 storeys in height. Those provisions do not relate to multi-unit dwellings nor exclude development which is not of the type which predominates.
  1. [43]
    A1.2 of the LR Code refers to a height of 8.5m above ground level and 2 storeys.[17] The corresponding provisions in City Plan 2014 include overall outcome (2)(h) for the MDC, which refers to development of  a height that is appropriate to the strategic and local context and meets community expectations consistent with 2 storeys in the LDRZ and AO5 and AO6 of the MDC, which refer table 9.3.14.3 B which, in turn, specifies a maximum building height of 2 storeys and 9.5m in the LDRZ.  That is one of the parameters in an acceptable outcome to PO5 which states “development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to” a number of things and PO6 which provides, in part, as follows:

“Development has a building height that is consistent with the streetscape local context and intent for the area having regard to:

…

  1. (b)
    the predominant height of existing and approved buildings in the street

…

  1. (e)
    the topography of the area and site slope

…”

  1. [44]
    It is common ground that the proposed development has a maximum height of less than 8.5m and so is consistent with the acceptable solution or outcome under both planning schemes, at least in relation to absolute height. There is departure in relation to the number of storeys, since it is common ground that the proposal includes some 3 storey elements in a minority of the proposed buildings (namely buildings 1, 2, 8 and 9)[18] when one allows for the garages (which are cut into the slope of the land but not by enough to be excluded from the count of storeys above ground) which are partially above ground. There are no other 3 storey developments in the locality.
  1. [45]
    This issue is largely technical. It is difficult to accept that the third storey element would have any significant effect, having regard to the limited extent of the 3 storey components in the proposal and the very limited extent that such elements would be visible from neighbours or elsewhere within the locality.
  1. [46]
    The proposed development is effectively ‘tucked in’ behind that which otherwise fronts the street and the site slopes away from Lang Street. The evidence demonstrated that there would be limited, if any, visibility of the development from public areas beyond the subject site or from other than immediate neighbours.[19] It would have no real impact on the streetscape.
  1. [47]
    It was pointed out that the site has a number of adjoining neighbours, but allowing for topography, landscaping and positioning, the opportunities to perceive the partial 3 storey elements would be limited. The focus of the evidence in this regard, was the potential visibility of buildings with a 3 storey element when viewed from within the Sunnybrae multi-unit development to the east. Whilst there are some locations from which a viewer within Sunnybrae would be able to perceive that there was a 3 storey  element (although not viewing the full 3 storeys) to some of the proposed buildings, the topography (the buildings are in cut) together with the intervening fencing and landscaping[20] will affect the extent of view. The result would not be inconsistent with the low density nature of the locality.
  1. [48]
    Overall, I do not consider that the 3 storey elements of the proposal result in conflict with the performance criterion under City Plan 2000 or cut across, in any substantial way, the corresponding provisions of City Plan 2014. Insofar as the latter is concerned there was some debate about whether any excess of 2 storeys should be regarded as a departure from expectations, such as to conflict with the provisions of the MDC as well as overall outcome (j) of the NPC (in the absence of a demonstrated community and economic need for the development). It is unnecessary for me to delay upon that however. The provisions of City Plan 2014 are a matter of weight (not strict application) in the context of this application. Relevantly, the provisions speak of an expectation of up to 2 storeys in the LDRZ. Whilst technically the proposal exceeds that, the circumstances are such that the excess will have little impact and any departure from the provisions of City Plan 2014 in this regard is not something to which I would attach much weight.
  1. [49]
    It was submitted, on behalf of the appellants, that performance criteria P1 and P2 of the LR Code are not met on a merits assessment. Reference was also made, in this context, to that part of the statement of purpose of the LR Code which seeks to ensure that new development is compatible in scale and design with neighbouring houses. Such provisions call for a consideration of the scale and design of neighbouring houses, the low density nature of the locality and what is required to achieve relevant consistency as well as what is required to integrate with the neighbourhood.
  1. [50]
    The examination of the ‘locality’ and the ‘neighbourhood’ focused most particularly on the site, its adjoining neighbours and the surrounding land within the LDRA under City Plan 2000, especially Lang Street between Jackson Road and Stones Road (including Sunnybrae). The case for the appellants focused on the existing development in the locality/neighbourhood. Whilst acknowledging that there are multi-unit developments within the locality, emphasis was placed on the proportion of houses on large lots, with generous building separations and a substantial degree of vegetation creating what was said to be a low key, low density character and amenity. It was contended that the proposal is not sensitive to that context.
  1. [51]
    A requirement for ‘compatibility’ with the scale and design of neighbouring houses does not require replication.[21] Similarly, ‘consistency’ with the ‘low density nature’ of the locality and integration with the neighbourhood (in a character sense), does not require development to be identical with what exists to date.[22] It would be erroneous, for example, to approach such provisions, on the basis that a multi-unit development on the subject site is precluded because the majority of adjoining properties are presently developed for detached houses on large lots, representing a much lower intensity of development, relative to site area, than either detached housing on more conventionally sized allotments or multi-unit developments.
  1. [52]
    As has been observed, the existing development on adjoining sites and in the locality and neighbourhood is not uniform in its intensity, even though it may all properly be regarded as low density in nature, with acceptable degrees of relevant consistency, compatibility and integration. The proposal would add to the existing mix by way of another multi-unit dwelling development. It would be somewhat more intense than any existing development, but would not, in my view, be inconsistent with the low density nature of the locality, nor incompatible with neighbouring houses or fail to integrate, in a character sense, with the neighbourhood.
  1. [53]
    The appellants placed a deal of reliance on ex 31A which shows that the proposal is more intense, in terms of site cover, plot ratio and dwellings per site area, than other existing multi-unit developments in the broader locality, save for the tri-care nursing facility (which is well removed from the subject site). That is not however, conclusive. It is necessary to consider the effect of the particular proposal in its context.
  1. [54]
    Whilst, as Mr Schomburgk acknowledged[23] the immediate locality of the subject site is such as to call for a sensitive approach, the site, by virtue of its configuration, situation, topography and consequent low visibility, affords a good opportunity to absorb appropriately designed development to an extent which makes efficient use of the site from a development perspective, without significant impact on the character or amenity of the locality/neighbourhood. By comparison, although less intense in terms of the parameters recorded in ex 31A, the more visually exposed Jackson Rise development has a much greater impact than would the proposed development.[24]
  1. [55]
    The amended proposal however relies not just on site suitability, but otherwise addresses issues of relevant compatibility and integration in terms of building, scale, design, size and bulk, and consistency, within the context of a multi-dwelling development of the subject site. In that regard:
  1. (a)
    the proposal is not for a vertically stacked block of units. It is for 26 townhouses split into 12 discrete buildings, of different sizes and shapes, and located about the site with different orientations;
  1. (b)
    none of the buildings could be described as particularly large. None accommodate more than 3 dwellings, whilst most accommodate only 2. None are detached houses but, as can readily be appreciated from exhibit 38 (pg 15), the footprints of the buildings (which range from approximately 150 m² to 245 m²) are not out of scale, in any adverse way, with the neighbouring houses (which vary from around 160 m² at 42 Lang Street to around 300 m² for the McDonald residence) or the multi-unit buildings within Sunnybrae. Indeed, counsel for the appellants conceded that, subject to the (number of storeys issue), the buildings, considered individually, are not inappropriate in terms of size and bulk;
  1. (c)
    the buildings are predominantly 2 storey and all are within the absolute height expected for 2 storey development. Visibility to the few three storey elements is confined and of no significant effect;
  1. (d)
    the design of the buildings is residential in nature and whilst not mimicking any particular development in the locality, is not out of place with the mix of building forms and styles[25] in the locality. As Mr Ceccato attested,[26] Sunnybank Hills features a diversity of brick and post-war weatherboard homes. The proposal picks up a variety of textures and material from the palette of what exists in the area in presenting a contemporary appearance. The design incorporates features which help to break down any perception of bulk. Indeed, by their amended notice of appeal, the appellants abandoned a previous allegation of conflict by reason of a failure to reduce bulk and scale by design elements;[27]
  1. (e)
    as is discussed later, the site cover is such that appropriate proportions of the site are given over to open space and conditions of any approval would require appropriate landscaping;
  1. (f)
    the number of proposed units is not excessive for the site area; and
  1. (g)
    building separation is appropriate.[28] There was reference to the fact that some gap between the buildings will visually seem to disappear if viewed from an oblique position, but that is the case with any proximate buildings (rear detached dwelling houses when viewed from an oblique angle along a street).
  1. [56]
    I am satisfied that the proposal, as located, designed and sited, does not conflict with the purpose of the LR Code or P1 or P2 as alleged.
  1. [57]
    The MD Code under City Plan 2014 seeks, in overall outcome (2)(e), that development has a bulk, scale, form and intensity that integrates with the existing and intended Neighbourhood structure for the area, as expressed by zone, zone precinct and neighbourhood plan outcomes, and is consistent with, amongst other things, the location and street context of the site. It also provides that development is of an intensity that reflects the lower density form and character of, relevantly, the LDRZ. PO5 and AO5 provide as follows

PO5

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

  1. (a)
    existing buildings that are to be retained;
  1. (b)
    significant infrastructure or service constraints such as tunnels;
  2. (c)
    existing and proposed building heights in the local area and street;
  3. (d)
    adjoining buildings and separation of buildings necessary to ensure impacts on residential amenity and privacy are minimised;
  4. (e)
    the impact of slope.

AO5

Development is contained within the building envelope for the site created by applying:

  1. (a)
    the maximum building height in Table 9.3.14.3.B;
  1. (b)
    front, rear and side boundary setback requirements in Table 9.3.14.3.C;
  2. (c)
    car parking boundary setback requirements in Table 9.3.14.3.E;
  3. (d)
    building separation requirements in Table 9.3.14.3.F;
  4. (e)
    acceptable outcomes for building height transitions where required.

Refer to Figure b and Figure c.

Note—This acceptable outcome can be demonstrated by the preparation of a building envelope plan, elevations and sections.

  1. [58]
    The issues referred to in that provision, to the extent that they are contentions in this appeal, are otherwise discussed in these reasons. Whilst the development is not wholly within the ‘building envelope’ referred to in AO5, I am satisfied that PO5 is nevertheless met.
  1. [59]
    Development in the LDRZ is more particularly dealt with in PO51 (and its corresponding AO’s) in the MD Code. Those provisions are as follows:

PO51

Development in the Low density residential zone supports neighbourhood structure, and a lower intensity residential character and integrates with adjoining sites through:

  1. (f)
    a mix of dwelling types and building forms such as freestanding dwelling houses and townhouses;
  1. (g)
    dwelling houses addressing existing streets;
  2. (h)
    the proportion of dwelling houses increasing for larger sites;
  3. (i)
    connection to the existing or proposed local street and park network;
  4. (j)
    legible and direct pedestrian and cyclist access to surrounding and future community facilities in the area such as schools, parks, neighbourhood shops and public transport;
  5. (k)
    appropriate development interfaces to side boundaries and adjacent sites;
  6. (l)
    new public roads and parks as appropriate to the scale of the site.

Refer to Figure a.

AO51.1

Development is not vertically stacked in an apartment form but is attached or freestanding and visually recognisable as such, by variation in the dwelling size, materials, textures, colours and built form features.

AO51.2

Development in the form of a free-standing dwelling house is located on an existing street frontage and provides a transition to adjoining dwelling houses.

AO51.3

Development provides connections to existing road, park and pathway networks.

AO51.4

Development is within 60m of a public road.

AO51.5

Development applies rear boundary setback requirements to side boundaries.

AO51.6

Development on sites of 7,000m2 or greater:

  1. (m)
    includes public roads, spaces or footpath connections in accordance with a neighbourhood plan;
  1. (n)
    is not gated.
  1. [60]
    It has already been observed that the proposed development is not a “vertically stacked” apartment complex, but is recognisably split up into discrete and varied buildings of attached units, albeit that each unit is 3 bedrooms (AO51.1).[29] The concept of providing a free-standing dwelling house on the existing street frontage (AO51.2) is not possible here (given the battle-axed nature of the lot), but is unnecessary in order to achieve integration in this instance and there are detached houses (to the south of the site) on either side of the site access. The development gains access directly onto a public road (AO51.4) which connects to local networks (AO51.3). A greater extent of integration, in relation to networks, is not possible, given the situation of the site. The development does not apply rear boundary setbacks to side boundaries (AO51.5), but building setbacks are discussed later and, for the reasons given, are nevertheless acceptable. The site is less than 7000 m² (AO51.6).
  1. [61]
    It was submitted that the proposal conflicts with PO51 because:
  1. (i)
    it does not respect the “special amenity” of the neighbourhood”;
  1. (ii)
    is of a significantly different size and scale to other developments;
  1. (iii)
    would have negative impacts as otherwise alleged, and
  1. (iv)
    offers only 3 bedroom units
  1. [62]
    The first 3 of those contentions are dealt with elsewhere in these reasons. As to the last, it has already been noted that there is no call for incorporating a dwelling house or houses for streetscape purposes or for integration otherwise. The development offers 3 bedroom townhouses in a number of different buildings which take the form of a mix of duplexes and triplexes. That it does not offer greater diversity, in terms of dwelling types, may indicate a departure from PO51 (which is a matter of weight) but not one which has any untoward consequences in the context of this proposal and does not, in my view, warrant refusal of the application.
  1. [63]
    Reference was also made to overall outcome 3(j) of the NPC, which refers to development being of a height, scale and form which is consistent with, amongst other things, the amenity and, character and community expectations for the relevant precinct, sub-precinct or site. Those concepts have been examined in these reasons.
  1. [64]
    The appellants particulars also referred to PO1 of the NPC which provides as follows

PO1

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

  1. (a)
    consistent with the anticipated density and assumed infrastructure demand;
  2. (b)
    aligned to community expectations about the number of storeys to be built;
  3. (c)
    proportionate to and commensurate with the utility of the site area and frontage width;
  4. (d)
    designed to avoid a significant and undue adverse amenity impact to adjoining development;
  5. (e)
    sited to enable existing and future buildings to be well separated from each other and to avoid affecting the potential development of adjoining sites.

Note—Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.

Note—Development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.

AO1

Development complies with the number of storeys and building height in Table 7.2.1.1.3.B.

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

  1. [65]
    The subject site is not within a precinct to which table 7.2.1.1.3B applies. Assuming PO1 to be applicable, it does not raise significantly different considerations in relation to the residual approval/refusal issues.
  1. [66]
    The provisions of City Plan 2014 to which attention was drawn, and which are a matter of weight, would not cause me to refuse the application.
  1. [67]
    Further, I am satisfied that the development bulk, height and scale (including density/intensity) would not cause any undue adverse tangible or intangible amenity impact. It has already been observed that the development would have very limited visibility from public areas external to the site. The same observation applies to visibility from properties beyond the immediate neighbours. It would not have any undue tangible or intangible amenity impact on the locality as a whole. The site does have a number of adjoining neighbours however;
  1. (i)
    The buildings are very well separated from neighbouring houses.[30] Further, the setbacks from boundaries (as distinct from the houses)[31]  are considered later and are acceptable.
  1. (ii)
    The neighbouring houses to the north[32] are well separated from the development (by in excess of 20 m) and oriented away from the subject site, and enjoy the advantages of the northern aspect, away from the subject site, as their land falls towards Beenleigh Road. The development at that end of the subject site consists of only 3 buildings, of less than 18 m in width, separated one from the other and setback 3.6 m from the boundary which will be fenced. It is only the backyards of those relatively large properties and their outbuildings/sheds which are proximate to the common boundary with the subject site.
  1. (iii)
    The houses on the neighbouring properties to the immediate south (ie 42 and 44 Lang Street) are oriented towards Lang Street (away from the subject site) and separated from the development by the setback of those houses to their rear boundaries and further separated from the proposed buildings proximate to their common boundary (which will be fenced) by the setback within the subject site giving a combined separation of some 16.6 m and 10.2 m respectively. The 2 proximate proposed buildings are triplexes, but each are 2 storeys, with widths of less than 20 metres, with a 2.2m gap between them;
  1. (iv)
    As for the houses to the immediate west (and as can be appreciated from the aerial photo overlay)[33]:
  1. (a)
    The houses are all well set back from the boundary of the subject site (a fact influenced by an access easement, which adjoins the subject site);
  1. (b)
    32 Lang Street is oriented towards the street frontage. Any view directly east towards the subject site is across the easements (to 34 and 36 Lang Street) towards the internal driveway on the subject site;
  1. (c)
    34 Lang Street (the McDonald residence) is oriented towards the proposed development, however;
  1. i
    The house on that property is oriented to one building only (building 7)
  1. ii
    The McDonald residence is separated from building 7 by the access easement (and vegetation in that easement)[34] to its own property, as well as the setback of building 7 from the common boundary (a combined distance of some 16 m).
  1. iii
    Building 7 is only 2 storeys, and
  1. iv
    Building 7 has been amended, such that it is now a duplex, rather than one of the triplexes. Consequently, the footprint of building 7 has been reduced to 214 m² and the width of the building (ie the dimension which presents itself towards the McDonald residence) has been reduced from 35.66 m to 25.69 m such that it is not dissimilar to the scale which might be expected of a comfortably sized detached dwelling (It may be noted that the McDonald residence itself has a footprint of approximately 300 m² and a width facing the rear of building 7 of approximately 20 m); and
  1. (d)
    36 Lang Street (Flanders) is, in part, oriented towards proposed communal open space. The side of 1 duplex is proximate to the boundary of 36 Lang Street, but that presents itself to the side of a separate garage building on 36 Lang Street, rather than to the house itself (which is approximately 15 m away) or the open space in the front yard of 36 Lang Street;
  1. (e)
    There will be screen fencing along the western boundary of the site.
  1. (v)
    As for residents of Sunnybrae:
  1. (a)
    Only the western part of that development lies proximate to the subject site and most of the units in that part of the complex are separated from the proposal by the internal access road within Sunnybrae as well as the setbacks within the subject site;
  1. (b)
    The visibility of the subject site would be diminished by intervening fencing and landscaping;[35] and
  1. (vi)
    The features of the design referred to earlier otherwise mitigate against undue impact.
  1. [68]
    I have no doubt that, if the proposal proceeds, the adjoining neighbours will be conscious that the subject site has changed from an undeveloped vegetated site, to a multi-unit development, but that is within reasonable expectations, even if unwelcome by some. The open space and vegetation issues are dealt with below. I do not consider that the building, height, bulk and scale (including density/intensity) or the form density/intensity of the development would result in a lack of relevant consistency, compatibility or integration (in a character sense) for the purposes of City Plan 2000 or would impact, in an undue negative way, on amenity. Those conclusions are consistent with the evidence of Mr Schomburgk[36], who described the impacts as negligible, mitigated, or acceptable,[37] and Ms Roughan.

Open space, landscaping and tree retention

  1. [69]
    The site is currently vegetated, including with some 108 trees with a trunk diameter of 150mm or more, some of which have achieved a significant height (the tree survey[38] noted heights of up to 22 m). The appellants appreciate this and, indeed, the extent of existing vegetation in the locality more generally. They maintain that the development will involve too great a loss of vegetation and, in that respect, also be unsympathetic to its context.
  1. [70]
    The existing vegetation on the site is not of any particularly important kind. It was not, for example, part of any significant landscape feature under City Plan 2000 nor did it fall within the scope of the Natural Assets Planning Scheme Policy. Under City Plan 2014 it does not appear on the Significant Landscape Tree overlay and is not subject to the Significant Tree Overlay Code, the purpose of which is, amongst other things, to retain landscape character and protect significant landscape trees. The Neighbourhood Plan does not attach any particular significance to it. It has no specific protection under any law or policy. An arborist’s report described the site as having no significant vegetation.[39] None of that is surprising. It is, generally speaking, simply regrowth which has occurred since the 1970’s. The appellants understandably abandoned reliance on alleged conflict with that part of the LM Code’s statement of purpose which sought to ensure that multi-unit development does not impact adversely on landscape and ecological values.
  1. [71]
    It is not surprising that regrowth has occurred on a site of this size, given its undeveloped nature. It is also unsurprising that much of it will have to be removed if, as should be within reasonable expectations, the site is to be developed for multiple dwellings. Indeed only some 4 existing trees are to remain. The appellants suggest that this is a consequence of overdevelopment of the site, but I have already found that the intensity of development is acceptable.
  1. [72]
    Even though the existing vegetation is not of any significant kind, the Planning Scheme does seek some retention of it, to the extent possible, given the proposed new buildings. In that regard the LR Code provides as follows:

Performance Criteria

Acceptable Solution

  1. P5
    Landscaping must be consistent with the established landscape character of the area and accommodate the retention of existing vegetation, including street trees
  1. A5
    Established trees are retained where removal is not required to site new buildings
  1. [73]
    The battle-axe nature of the subject site renders the reference to ‘street trees’ inapplicable. The requirement in P5 to “accommodate the retention of existing vegetation” does not mean that all, or any particular proportion, of the existing vegetation must be retained. The acceptable solution only involves retention where removal is not required to site new buildings, which is a relatively undemanding provision. The proposal is for (and any approval can be conditioned to require) retention of those (few) trees that are not required to make way for new buildings.
  1. [74]
    Insofar as new landscaping is concerned, the amended proposal includes a landscape master plan, which includes provision for internal street trees, screen and amenity planting, (including near site boundaries) as well as screen fencing. Any approval can be conditioned to require appropriate landscaping.
  1. [75]
    The appellants also sought to place reliance on the following provision of the MD Code under City Plan 2014 (which is a matter of weight):

Performance Criteria

Acceptable Solution

PO14

Development ensures that the proportion of buildings to open space and landscaping on a site:

  1. (a)
    is in keeping with the intended form and character intensity of the local area and immediate streetscape;
  2. (b)
    contributes to modulation of the building form;
  3. (c)
    supports residential amenity including access to natural light, sunlight and breeze;
  4. (d)
    supports private outdoor subtropical living;
  5. (e)
    provides for communal open space;
  6. (f)
    provides for deep-planting areas to retain significant vegetation and protect or establish large subtropical shade trees.

AO14

Development has:

  1. (a)
    a building footprint within the building envelope;
  2. (b)
    a maximum site cover that:
  1. (i)
    complies with the requirements set out in a neighbourhood plan; or
  2. (ii)
    if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan:
  1. (A)
    where in the Medium density residential zone, Low–medium density residential zone, the Infill housing zone precinct of the Character residential zone or Low density residential zone, is 45%; or
  2. (B)
    where in the High density residential zone, is 40%.
  1. [76]
    It was submitted that the proposal departs from PO14(a). PO14 refers to the retention of ‘significant vegetation’ (in (f)), which this site does not have. Otherwise, the provision seeks an appropriate proportion of buildings to open space and landscaping.
  1. [77]
    The proposal, as ultimately amended, provides for private use open space of 20% of the site area and communal open space of just over 10% of the site area. The total of just over 30% corresponds with the proportion referred to in A9.1 of the LR code in City Plan 2000, whilst the proportion of communal open space easily meets that referenced in the relevant acceptable solution under City Plan 2014.[40] The amount, proportion and configuration of the open space provision is adequate and appropriate.[41]
  1. [78]
    Insofar as the proportion given over to the built form is concerned, it should be noted that the site cover, in the amended proposal is now only 37%, which is well within the 45% referenced in the acceptable solution. The building envelope provisions are discussed elsewhere, but any departure from that does not, in the circumstances of this case, establish an inappropriate proportion for the purposes of the performance outcome.
  1. [79]
    It has already been observed that appropriate landscaping can be required by the imposition of conditions.
  1. [80]
    I am satisfied that the performance outcome is met. In particular, insofar as PO14(a) is concerned, the proposal will have no real effect on the immediate streetscape (from which it will effectively be hidden), will have little effect on local area (because of its limited visibility) and, in any event, the proportion of buildings to open space and landscaping, whilst obviously different to what exists on the subject site at present and on the existing adjoining large allotments, is in keeping with the intended form and character intensity of the local area, given the development opportunities contemplated by the 2014 planning scheme.

Overshadowing and access to daylight - setbacks

  1. [81]
    The LR Code under City Plan 2000 contained the following provisions:
  1. P13
    Development must not significantly reduce daylight to open space and habitable rooms in adjacent development
    Boundary walls must be limited in dimensions and openings, to minimise the impact on neighbours
  1. A13.1
    The side boundary setback, except for a wall built to the boundary, is a minimum of:

• 1.5m for a wall up to 4.5m high

• 2m for a wall up to 7.5m high

• 2m plus 0.5m for every 3m (or part of 3m) over 7.5m height for a wall over 7.5m high

• less than 1.5m where the wall is no more than 3.5m high and no more than 15m long

A13.2 A wall built to a side boundary has:

• a maximum height of 3m, unless it abuts a higher existing or simultaneously constructed wall

• a maximum length of 15m where it does not abut an existing boundary wall

A13.3  minimum rear boundary setback is 6 m.

  1. [82]
    Daylight is not necessarily the same as an absence of shadowing,[42] but that distinction is not of importance in this case.
  1. [83]
    The MD Code in City Plan 2014 seeks, in overall outcome 2(i) development setbacks that contribute to the amenity of residents within and adjoining the site and to Brisbane’s high-quality subtropical streetscape and public spaces. In overall outcome 2(j) it seeks that development in … lower density residential areas uses side boundary setbacks… to manage the interface with those areas and reflect the amenity, form and character of those areas. PO10 and PO11 are as follows:

PO10

Development provides a rear boundary setback that:

  1. (a)
    supports the separation of buildings to provide visual and acoustic privacy without reliance on screening;
  2. (b)
    maximises the opportunity to retain significant vegetation and protect or establish large subtropical shade trees in deep-planting areas.

AO10

Development provides a rear boundary setback that complies with:

  1. (a)
    a neighbourhood plan; or
  2. (b)
    if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.C.

PO11

Development provides a side boundary setback that:

  1. (a)
    minimises the impact of development on the amenity and privacy of neighbouring existing residents;
  2. (b)
    contributes to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character;
  3. (c)
    provides for natural light, sunlight and breezes;
  4. (d)
    considers future development.

AO11

Development provides a side boundary setback that complies with:

  1. (a)
    a neighbourhood plan; or
  2. (b)
    if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.C.
    Refer to Figure d.
  1. [84]
    Table 9.3.14.3C provides, in part, as follows:

Height of proposed wall

Minimum boundary setback (m) (other than built to boundary walls)

Front

Rear

Side

To balcony

To wall

To balcony

To wall

2 storeys

and up to 9.5m

4

6

4.5

6

1.5m up to 4.5m building height

2.0m up to 7.5m building height then 2.0m plus 0.5m/3m above 7.5m building height

2 storeys and up to 9.5m and where located on a lot with a street frontage 15m or less

4

6

4.5

6

1.5m up to 7.5m building height then

1.5m plus 0.5m/3m above 7.5m building height

3 storeys and

up to 11.5m

4

6

6

1.5m up to 4.5m building height

2.0m up to 7.5m building height

then 2.0m plus 0.5m/3m above 7.5m building height

  1. [85]
    The setback of Building 7 has been noted earlier. Buildings 1, 3, 6, and 8 have the internal driveway between them and the western boundary to the access easement to the properties to the west. There would be no significant impact on daylight for properties to the west.[43] Buildings 2, 4, 5, and 9 are each set back more than 4.5 m from the eastern boundary to Sunnybrae,[44] beyond which lies the internal driveway within that development. The proposal does not adopt a 6 m rear setback, but there is no realistic prospect of that development adversely affecting access to daylight for the properties to the north, given the path of the sun. There is also no concern, in this regard, for neighbours to the south. There would be no undue impact on amenity otherwise for any of those adjoining neighbours.
  1. [86]
    The debate centred on 2 buildings, namely buildings 10 and 12 being those 2 storey buildings at the north eastern and north western extremities of the site. The side setback of unit 30 (with building 12) from 36 Lang Street is 1.6 m, as is the side setback of unit 25 (in building 10) from Sunnybrae.
  1. [87]
    It was common ground that:
  1. (a)
    The height above existing ground level (EGL) of the west facing wall of Unit 30 varies from 5355 mm at its southern extremity to 6110 mm at its northern extremity;
  1. (b)
    The height about EGL of the east facing wall of Unit 25 varies from 5545 mm at its southern extremity to 6845 mm at its northern extremity;
  1. (c)
    The roof of Unit 30 is 7255 mm at its highest point; and
  1. (d)
    The roof of Unit 25 is 7990 mm at its highest point.
  1. [88]
    In terms of the City Plan 2000 provisions, the side setbacks would need to be 400m greater if the acceptable solution were to be met. The co-respondent submits however, that the reduction in the setback is minimal, and that the proposal otherwise meets P13.
  1. [89]
    It has already been noted that the side of Unit 30 is proximate to the side of the separate garage at 36 Lang Street. There is no likelihood of the proposed building with which unit 30 is to be included would reduce daylight to habitable rooms in the residence on 36 Lang Street or have any significant effect on daylight to open space,[45] especially in comparison with the existing situation given that there are existing trees in that area.
  1. [90]
    Given the situation in relation to 36 Lang Street, the appellants understandably focused more on the setback to Sunnybrae and, in particular to the outdoor open space for unit 42 which is proximate to the boundary closest to proposed unit 25 in building 10. It might be noted that the setback is not one which could have any effect on the appellants. That neighbour is not an appellant and, indeed, did not object at all to the proposal. Further, given that the unit is to the east of the subject site, the effect on daylight in the morning is not a concern. Any shadowing would be to part of the private open space for that unit in the late afternoon.[46]
  1. [91]
    It is, again, difficult to accept that setback as proposed, the development would have any significant impact on daylight to the open space of that unit in the afternoon, particularly when one has regard to the extent of existing access to daylight considering the natural path of the sun and the likely effect of the existing tall vegetation on the site, which as Mr Schomburgk observed is up to the equivalent of 5 or 6 storeys, which is to make way for the proposed development.[47] I accept that there is no reasonable prospect that the proposed development (which includes the removal of existing vegetation) would result in further material shadowing or loss of daylight. Indeed, as Mr Trotter submitted, it is likely, if anything, to improve daylight. I and am satisfied that P13 is satisfied.
  1. [92]
    The setback provisions of City Plan 2014 are a matter of weight. Given the agreed dimensions, the setbacks are consistent with acceptable outcome 11, which is 1.5 m for up to 7.5 m building height for a wall of 2 storeys and up to 9.5 m where (as here) located on a lot with a street frontage of 15 m or less. In that regard I accept the submissions for the Co-respondent that ‘building height’ in the context of table 9.3.14.3.C is a reference to the height of the proposed wall.[48] If that were not so then the setback would still be consistent with the table for building 12, but would be less, (by 400mm) for building 10. In that event however, I would be satisfied that the proposal meets PO11, particularly (a) and (c)[49] for the reasons already given.
  1. [93]
    The appellants drew attention to PO 51, which is discussed earlier. That provision seeks, amongst other things, “appropriate development interfaces to side boundaries and adjacent sites” and, in that regard has an acceptable solution (AO51.5) which states “Development applies rear boundary setback requirements to side boundaries”.[50] The proposal does not adopt AO51.5, but I am satisfied, no greater setback than is proposed is necessary in order to achieve an interface which is appropriate in the circumstances and consistent with the provisions to where reference was made.

Conflict and Grounds

  1. [94]
    As noted earlier, the decision on the development application must not conflict with a ‘relevant instrument’ unless there are sufficient grounds to justify the decision despite the conflict. Insofar as the planning schemes are concerned, these reasons have examined provisions of both City Plan 2000 and City Plan 2014. It is only the former conflict with which triggers s 329 of SPA. The latter is a matter of weight only. Further, insofar as City Plan 2000 is concerned, it must be borne in mind that departure from an acceptable solution does not, of itself, amount to conflict.
  1. [95]
    Where conflict is found, the need to demonstrate sufficient grounds to justify an approval is triggered. Grounds are matters of public interest.[51] There might be sufficient grounds which relate to the point of conflict, or the grounds in favour of the application as a whole might, on balance, be sufficient to justify approval notwithstanding the conflict.[52]
  1. [96]
    By paragraph 5(a) of the amended notice of appeal, the appellants alleged that the proposal conflicts with the following provisions of City Plan 2000 (adopting the same sub paragraph numbering):
  1. (i)
    The intent of the LDRA, for development at a scale and density commensurate with the LDRA
  1. (ii)
    DEO1 of the LDRA – because the development has units of 3 storeys
  1. (iii)
    The purpose of the LD Code – because the development is not compatible in scale and design with neighbouring houses
  1. (iv)
    P1 of the LD Code – because building size and bulk is not consistent with the low density nature of the locality
  1. (v)
    P2 of the LD Code – because the proposed development does not integrate with the neighbourhood and form part of the street network
  1. (vi)
    Deleted.
  1. (vii)
    P5 of the LD Code- because the proposal does not accommodate the retention of existing vegetation
  1. (viii)
    P9 of the LD Code – because the development does not provide sufficient communal and private open space
  1. (ix)
    P13 of the LD Code – because the development does not provide sufficient setbacks
  1. (x)
    P1 of part 6.1 of the Neighbourhood Plan – in relation to waste management.
  1. [97]
    The last of those matters is irrelevant to the remaining approval/refusal issues. These reasons have traversed the alleged areas of conflict otherwise. For the reasons given, there are sufficient grounds to approve notwithstanding any conflict with the intent of the LDRA arising from the fact that the proposal exceeds a plot ratio of 30%. For the reasons given, I have concluded that the conflicts otherwise alleged have not been made out. To the extent that there is departure from acceptable solutions, I have found compliance with the relevant performance criteria.
  1. [98]
    Had I found a greater level of conflict with City Plan 2000, as alleged by the appellants, I would nevertheless have concluded that there are sufficient grounds to warrant approval. In that event, the extent of conflict which, generally relates to what might be described as overdevelopment issues, would have been material, in terms of the text of the provisions, but the gravity of that conflict would be need to be assessed in light of my finding of an absence of significant adverse consequences, in terms of the amenity, character or otherwise and would need to be weighed with the merits of the proposal otherwise.
  1. [99]
    The extent of conflict with City Plan 2000 would also need to be considered in light of the weight to be afforded to City Plan 2014. For the reasons given earlier, that planning scheme overtook the emphasis which City Plan 2000 placed in gross floor area. The proposal complies with the acceptable outcome (52.1) to PO52, relating to appropriate site density. Otherwise, City Plan 2014 is such that similar considerations to those the subject of alleged conflict with City Plan 2000 are dealt with in a much greater number of provisions, which have been traversed in these reasons.
  1. [100]
    There is significant merit in the proposal. As has been noted, the site is suitable for development of this kind and, for a combination of reasons, can absorb a considerable extent of appropriately designed development without becoming visually intrusive or having other undue impact. That does not mean ‘anything goes’ on this site, but it does present an opportunity to optimise the development potential of the site, without significant adverse effects.
  1. [101]
    As Mr Schomburgk attested,[53] there are plenty of positives in optimising the development potential of a site rather than letting that potential unnecessarily go to waste. The proposal is for a form of development (multi-units) which is to be expected on a site such as this and I am satisfied that the amended proposal has merit in the way it designs and arranges the proposed development so as to achieve optimisation without undue impact, rather than going beyond the point at which optimisation becomes overdevelopment with adverse consequences. In so doing it not only makes efficient use of the resource which is the subject site, but does so in a way which optimises the sites contribution to the provision of further multi-unit development in an area where such development is planned, to provide housing choice within an area where detached housing predominates and in a way which promotes the achievement of a compact urban form and efficient use of infrastructure which are relevant objectives of the SEQRP and sound planning.
  1. [102]
    I acknowledge that one should not overstate the importance of this one particular development, in the achievement of those broader objectives of the SEQRP. As was pointed out for the appellants, whilst part of the Urban Fabric under the SEQRP, the site was nevertheless in the LDRA under City Plan 2000 and is in the LDRZ under City Plan 2014 (rather than some higher intensity area designation or zoning) and is not part of a designated growth node under the latter. Nevertheless, the subject site can make a contribution and, in my view, in light of the absence of undue adverse impacts associated with the alleged conflicts, the proposal has sufficient overall merit to warrant approval.

Footnotes

[1]  T 5-77 l 43.

[2]  Other issues such as storm water, drainage, traffic and car parking can be dealt with by conditions and were not the focus of argument in relation to approval/refusal.

[3]  See s 5.3.3

[4]  S 6.2.1.1 (2)(c)

[5]  S 6.2.1.1(4)(b)

[6]  It may be noted that as was pointed out, on behalf of the co-respondent, in the context of the reasonableness of the appellants’ position, their witness statements were based on the superseded development proposal, were not supplemented to deal with the amended proposal and made no reference to City Plan 2014.

[7]  Ex 19 pg 95.

[8]  Ex 19 pg 95.

[9]  T6-51.

[10]  and, indeed, the largest undeveloped lot north of Lang Street.

[11]  T6-60.

[12]  T6-58.

[13]  see also overall outcome 2(g) of the MDC.

[14]  Ex 7 para 5.1.40

[15]  2015 QPELR 50, see also Hankamer v Brisbane City Council 2013 QPELR 800 at [116] and Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPELR 64 at [113].

[16]  2(g).

 

[18]  It was common ground that 4 buildings were 3 storeys for the purposes of City Plan 2000. The calculation under City Plan 2014 might result in 1 fewer, but that would make no difference to my conclusions.

[19]  See eg Schomburgk T3-59, 60.

[20]  My conclusion is not dependent upon the extent of screening provided by the landscaping.

[21] Gorman v BCC [2004] QPELR 29 at [11].

[22] Kangaroo Point Progress Association v BCC p2014] QPEC 64 at [138].

[23]  T3-45.

[24]  Schomburgk T3-60, 61.

[25]  that are relatively generic for the respective times in which they were built which, in many cases, was the 1980’s or 1990’s

[26]  T3-39.

[27]  See para 5(a)(vi) of the amended notice of appeal.

[28]  See concession of counsel for the appellants T 6-63.

[29]  Counsel for the appellants conceded that a variation in the number of bedrooms was not necessary to fall within AO 51.1 T6-61.

[30]  Schomburgk T3-57.

[31]  See ex 7 pg 52 but noting that the plan was further amended, to remove some units after its preparation.

[32]  One of which is the property of the Karanges, who withdrew from the appeal

[33]  Ex 38 pg 14, 15.

[34]  Although my conclusion is not dependent upon that vegetation necessarily remaining into the future.

[35]  My conclusion in this respect does not depend upon the extent of screening by vegetation.

[36]  See T3-47 to 55

[37]  T3-60.

[38]  Ex 2 pg 301.

[39]  Ex 2 pg 299.

[40]  See AO27.

[41]  Including by reference to overall outcome 2(m), which is referred to in the appellant’s provisions.

[42]  Cox & Ors v BCC (2013) QPELR 874 at para 49.

[43]  Schomburgk T3-58.

[44]  Ex 38 pg 1, 4.

[45]  Ceccato T3-36.

[46]  Ceccato T3-36.

[47]  Schomburgk T3-56.

[48]  That is consistent with figure d.

[49]  (b) is not relevant here, since the battle-axe nature of the site means that the side setbacks will have no impact upon the streetscape and (d) is not offended, since Sunnybrae has been fully developed and the setback on the subject site would affect development of Sunnybrae.

[50]  Reference was also made to overall outcome 2(q).

[51]  See definition in SPA.

[52] Weightman v Gold Coast City Council [2003] 2 Qd R 441 at [36].

[53]  T3 – 73 l 35.

Close

Editorial Notes

  • Published Case Name:

    Flanders & Others v Brisbane City Council

  • Shortened Case Name:

    Flanders v Brisbane City Council

  • MNC:

    [2016] QPEC 46

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    16 Sep 2016

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
Cox & Ors v BCC (2013) QPELR 874
1 citation
Jump To
Cite 1 - (2013) QPELR 874
Gorman v Brisbane City Council (2004) QPELR 29
1 citation
Jump To
Cite 1 - (2004) QPELR 29
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPEC 64
1 citation
Jump To
Cite 1 - [2014] QPEC 64
Kangaroo Point Residents Association Inc v Brisbane City Council [2014] QPELR 64
1 citation
Jump To
Cite 1 - [2014] QPELR 64
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
1 citation
Jump To
Cite 1 - [2003] 2 Qd R 441

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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