Kissane v Brisbane City Council
[2016] QPEC 57
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Kissane v Brisbane City Council[2016] QPEC 57
- Add to List
Kissane v Brisbane City Council[2016] QPEC 57
Kissane v Brisbane City Council[2016] QPEC 57
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Kissane & Ors v Brisbane City Council [2016] QPEC 57 |
PARTIES: | MARY KISSANE, ARSIL NAYYAR HUSSAIN AND SHAMILE HUSSAIN (appellants) v BRISBANE CITY COUNCIL (respondent) and PACIFIC ENTERPRISES GROUP PTY LTD (ACN 098 424 161) (first co-respondent) and NORIBA PTY LTD (ACN 126 419 145) (second co-respondent) |
FILE NO/S: | 3797 of 2015 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court |
DELIVERED ON: | 16 November 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 October 2016 – 4 November 2016 and 9 November 2016 |
JUDGE: | Everson DCJ |
ORDER: | Appeal Allowed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – appeal against a development application seeking development permits for multi-unit dwellings – conflict with planning scheme – unacceptable bushfire risks – amenity and character impacts – Grounds – whether sufficient grounds to justify an approval despite conflict. Sustainable Planning Act 2009, ss 314, 324, 326, 495 Arksmead Pty Ltd v Gold Coast City Council & Ors [2001] 1 Qd R 347 Lockyer Valley Regional Council v Westlink Pty Ltd [2003] 2 Qd R 302 Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474 Weightman v Gold Coast City Council [2003] 2 Qd R 441 |
COUNSEL: | A. Skoien with J. Dillon for the appellants M. Batty for the respondent C. Hughes QC with N. Kefford for the first and second co-respondents |
SOLICITORS: | McInnes Wilson Lawyers for the appellants Brisbane City Legal Practice for the respondent Deacon & Milani Solicitors for the first and second co-respondents |
Introduction
- [1]This is an appeal against the decision of the respondent made on 27 August 2015 to grant development permits for a material change of use and preliminary approvals for building works for 68 dwelling units together with a development permit for reconfiguring a lot to create a new road (“the proposed development”) in respect of Lot 1290 on CPS312435 located at 134 Allbutt Street Kuraby (“the land”).
- [2]The appellants are neighbours of the proposed development. In the course of the appeal, the issues in dispute narrowed. Ultimately the appellants submitted that three central issues remained for determination:
- Whether the proposed development gives rise to unacceptable amenity and character impacts as a result of its design (height, bulk and scale) and siting;
- Whether the proposed development is of inappropriate density (including whether this is compounded by the height, bulk, scale and siting of the proposed development); and
- Whether the proposed development adequately addresses the existing bushfire risk to the land.[1]
The proposed development
- [3]The land is located on the edge of low density residential housing in Kuraby. It is at the southern end at the developed urban area of Kuraby and approximately 1km from the Kuraby train station.[2] The land owned by the appellants, which contains substantial detached dwellings, is to the north.[3] Their dwellings front Bradford Place, which runs in a southerly direction providing access to the land close to its north-eastern corner. Behind the two residences of the appellants is bushland. Apart from the cleared area beside and in front of the appellants’ residences and Bradford Place, the land is entirely surrounded by bushland.[4] Whilst land to the south and east is in private ownership[5], land to the west is not. Immediately to the west is the Allbut Street road reserve which is entirely undeveloped and beyond it is the Karawatha Forest Park.[6] All of the adjoining land to the south and east is, like the land, within the Emerging community zone pursuant to City Plan 2014.[7] In the general vicinity there are three townhouse developments, including one which adjoins the neighbouring parcel of bushland to the east.[8]
- [4]The proposed development has been changed since the respondent approved it. In its current form, it contemplates 62 multi-unit dwellings of between two and three storeys with a Gross Floor Area (“GFA”) of 8388.22 m², representing approximately 41 per cent of the land.[9] Four stages are proposed with 30 multi-unit dwellings in stage one in the north and centre of the land, 18 multi-unit dwellings in stage two in the centre of the land, six multi-unit dwellings in stage three to the east and eight multi-unit dwellings in stage four to the south.[10]
- [5]In the central part of stage one, all of the 17 multi-unit dwellings are attached. There are only small gaps of less than five metres between the built form in three locations. All of the nine multi-unit dwellings in the eastern portion of this row are three storeys in height. In stage two all of the proposed multi-unit dwellings are three storeys in height and there are only three small gaps of the same width between the built form.[11]
The relevant statutory regime
- [6]The appeal is to be determined pursuant to the provisions of the Sustainable Planning Act 2009 (“SPA”). It is assessed pursuant to s 314 and decided pursuant to s 324 and s 326. Significantly, the decision must not conflict with a relevant instrument unless there are sufficient grounds to justify the decision, despite the conflict.[12] A relevant instrument includes a planning scheme.[13] The appeal is by way of hearing anew.[14] The court 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.[15] Significantly, the first and second co-respondents bear the onus of establishing that the appeal should be dismissed.[16] The development application for the proposed development was lodged when the planning scheme in force for Brisbane was City Plan 2000 but only shortly before the new planning scheme, City Plan 2014, came into force.[17]
The relevant planning controls
- [7]
“1. A range of housing types and opportunities are provided to meet different needs, lifestyle choices and housing market diversity.
…
- Land is developed in a sustainable manner to reflect the general form of the City by integrating development sites, community infrastructure, greenspaces and important natural features.
…
- Development is well planned and integrated with surrounding land uses, and is supported by local centres and basic community facilities.
- Development does not impinge on existing or intended use of adjacent areas. Buffer areas are provided. Any interim uses do not prejudice future development.
- Roads and other transport corridors are coordinated and interconnected to ensure pedestrian, bike, public transport and private vehicle accessibility between neighbourhoods, Centres and other locations, providing a range of services and facilities.
- Urban design promotes a sense of place and identity and community safety.”[20]
- [8]The land is also subject to the Kuraby Local Plan which contains specific additional planning requirements. Relevantly, the land is shown as a Potential Development Area pursuant to the Kuraby Local Plan.[21] It contains the following provisions with respect to Potential Development Areas:
“2.1 Potential development areas
2.1.1 Low density residential – houses
Dwelling densities of between 10 and 15 dwellings per hectare are generally intended in this Potential Development Area.
2.1.2 Low density residential – houses and multi-unit dwellings
Within 400 and 800 metres of Kuraby or Fruitgrove railway stations, densities of up to 20 dwellings per hectare are encouraged. Dwellings in this area must be designed to ensure compatibility with the form and scale of detached housing.
2.1.3 Density residential – multi-unit dwellings
Within 400 metres of Kuraby or Fruitgrove railway stations, densities of up to 25 dwellings per hectare are encouraged.”[22]
- [9]For completeness it should be noted that the provisions of the Kuraby Local Plan providing for greater density of development close to railway stations are reflective of a broader planning strategy in City Plan 2000, which seeks to promote a pattern of development that reduces private motor vehicle dependency and increases the potential for use of public transport.[23]
- [10]The appellants also allege that the proposed development fails to comply with the Performance Criteria of the Structure Planning Code.[24] These alleged conflicts were not pressed at the hearing of the appeal and it is difficult to see how they are relevant.
- [11]Finally, the appellants allege conflicts with certain Performance Criteria of the Residential Design – Low Density, Character and Low – Medium Density Code.[25] These relate to specific building design elements which I find are complied with should the proposed development be appropriate for the land.[26]
- [12]To the extent I may give weight to the provisions of City Plan 2014 pursuant to s 495 of SPA, the land is currently located within the Emerging community zone and is subject to the Kuraby neighbourhood plan.[27] The Emerging community zone code states that its purpose is to, inter alia, “Identify land that is suitable for urban purposes and conserve land that may be suitable for urban development in the future”.[28] Again, the code contemplates a mix of housing types including Multiple dwellings. The provisions of the Kuraby neighbourhood plan code relevantly state:
“7.2.11.4.2 Purpose
…
(3) The overall outcomes for the neighbourhood plan area are:
…
- (e)Residential development provides for a mix of housing types, styles and densities, in particular:
- (i)low density residential – dwelling houses: contains dwelling densities of between 10 and 15 dwellings per hectare;
- (ii)low density residential – dwelling houses and multiple dwellings: contains dwelling densities of up to 20 dwellings per hectare where between 400m and 800m of the Kuraby Railway Station or Fruitgrove Railway Station and is designed to ensure compatibility with the form and scale of detached housing;
- (iii)low-medium density residential – multiple dwellings: contains dwelling densities of up to 25 dwellings per hectare where within 400m of the Kuraby Railway Station or Fruitgrove Railway Station.”[29]
The bushfire issue
- [13]The appellants assert that the land is not suitable for the proposed development because it is subject to unacceptable bushfire risks. At the time the development application was made, State Planning Policy 2013 (“SPP 2013”) applied and there were no provisions of City Plan 2000 relevant to this issue.[30] In the event that SPP 2013 applied, and it appears it did (although the mapping is somewhat inconclusive in this regard), it was nonetheless in general terms. Relevantly it stated that development was required to mitigate the risks of the natural hazard (in this instance a bushfire) and not unduly burden “disaster management response or recovery capacity”.[31]
- [14]City Plan 2014 contains a Bushfire overlay code (“the Bushfire Code”) which applies to impact assessable development for land and relevantly identifies in the Bushfire overlay.[32] The land is relevantly identified and mapped showing it to be surrounded by predominantly medium hazard areas with the exception of the roadway and the land of some of the appellants to the north.[33] At the western edge of the northern boundary there is an area of predominantly high hazard bushland which is at the rear of the appellants’ land to the south-west and there is another area of high hazard bushland indicated upon the land adjoining the extensive bushland to the south.[34] It is significant that the Bushfire Code provides for a minimum building protection zone of 20 metres with an inner 10 metre zone of very low fuel and an outer zone of at least 10 metres where there is reduced fuel.[35]
- [15]Each of the bushfire experts who gave evidence at the hearing of the appeal, Mr Friend who was engaged by the first and second co-respondents, Mr Clowes who was engaged by the respondent and Mr Hawkes who was engaged by the appellants, undertook an assessment of the proposed development pursuant to the Bushfire Code. In my view it should be given significant weight pursuant to s 495 of SPA, as it represents a comprehensive response to a contemporary risk in circumstances where City Plan 2000 did not address the issue. It is also a response which found favour with the appropriately qualified experts who each agreed that the Bushfire Code was part of “the most up-to-date instrument available”.[36]
- [16]Although initially agreeing with Mr Clowes and Mr Hawkes that parts of the land and surrounding vegetation are classified as medium to high potential bushfire hazard areas,[37] Mr Friend subsequently downgraded his assessment based on a site-specific analysis and his particular experience of controlled burns of Black Sheoak which he found present in significant numbers in bushland adjoining the land to the south.[38] He expressed the view that any assessment of the hazard level needed to take into account the low combustibility of this flora. His detailed analysis of the surrounding bushland led to him downgrading the hazard level the land was subject to from medium-high to low-medium.[39] In this context Mr Friend predicted that fire retardant fencing and appropriate building design would provide “appropriate levels of safety for people and property”[40] in the parts of a proposed development most at risk of bushfire threats.
- [17]Mr Clowes and Mr Hawkes disagreed with the approach of Mr Friend. They maintained the position that “access and a total separation of at least 20 metres from the hazard to the nearest building are essential to provide a minimum acceptable risk position.”[41] The criticism of the approach of Mr Friend occurred in the context of the significant areas of uncontrolled forest to the south and east of the land and an even larger but managed area, the Karawatha Forest Park, on the other side of the vegetated Allbutt Street road reserve to the west, which make for a greater risk from a bushfire hazard perspective.[42] There was disagreement with Mr Friend over his categorisation of vegetation communities in his assessment of the bushfire hazard.[43] However, critically, his analysis of likely fire behaviour was seriously called into question. While Mr Friend purported to analyse fire threats from the west, south and east using various criteria, he frankly conceded that these analyses did not take into account wind which could not be ignored in a wildfire situation.[44] Mr Hawkes emphasised the difference between a prescribed burn and an unplanned wildfire from a risk perspective.[45] Mr Clowes was of the same view and observed in the context of the fire hazard from the west that:
“Wildfires or bushfires, by their nature, behave very differently to “controlled burns” and evidence from across Australia has demonstrated that fire behaviour is likely to be far less predictable than the specific scenario implied by Mr Friend. Hence, Mr Friend underestimates the potential level of risk.”[46]
- [18]The bushfire hazard map generated by Mr Friend was the subject of cross-examination.[47] In my view it did not accurately reflect vegetation demonstrated to be on and around the land in photographic evidence put before me.[48] I am unpersuaded by the hazard assessment of Mr Friend. I consider the Bushfire hazard overlay in City Plan 2014 to be accurate. Accordingly, I prefer the approach of Mr Clowes and Mr Hawkes in that there needs to be at least 20 metres separation from the bushfire hazard to the nearest building. I also accept that the fire retardant fencing proposed by Mr Friend would limit access for firefighters to the south and east of the land. Although Mr Hawkes and Mr Clowes submitted that a perimeter road between the proposed buildings and the hazard was appropriate,[49] I do not consider this to be essential in sufficiently mitigating the bushfire risk to the proposed development. This measure was not ultimately pressed by Mr Clowes in his statement of evidence.[50] Given that a building protection zone of 20 metres is the minimum prescribed by the Bushfire Code and given the extent of the hazard posed to the proposed development in this regard, it must be complied with to ensure that there is not an unacceptable bushfire risk from the threats identified on the Bushfire overlay.
- [19]As an alternative way of mitigating this bushfire risk, the first and second co-respondents propose creating firebreaks on land immediately adjoining the land to the south and to the west.[51] Evidence of an agreement reached with the owners of the land to the east and applications to remove protected vegetation have been placed before the court.[52] Both parcels of land are subject to a number of ecological overlays. an approval to clear the vegetation cannot be assured.[53] Moreover, Mr Friend acknowledged under cross-examination that it was necessary to not only construct but also maintain a firebreak.[54] Nowhere is this issue addressed in the evidence placed before me and there is therefore no undertaking by anyone to appropriately maintain such an area. Accordingly the proposed firebreaks on adjoining land will not sufficiently mitigate the bushfire risks from the east and south. So far as the land to the north and the west is concerned, there is no evidence before me to support the assumption that either the respondent or the appellants can be relied upon to mitigate the risk to an acceptable level.
- [20]Finally, Mr Clowes, while agreeing with Mr Hawkes that there are unacceptable bushfire risks to units 1, 2, 9, 10, 11, 12 and 13 in stage one and all of stages three and four, was of the view that this issue could be addressed by appropriate conditions.[55] These contemplated a Bushfire Management Plan being submitted prior to works being undertaken which demonstrates “an acceptable level of fire protection can be achieved for the proposed residential development in accordance with the requirements of the Bushfire Overlay Code.”[56] It is difficult to comprehend how such a condition could be complied with in circumstances where the first and second co-respondents have refined the proposed development to the extent that the precise design characteristics and the location of each building are set out[57] and where each of the buildings in question fails to comply with the minimum 20 metre separation from the identified bushfire hazard noted above.
- [21]The first and second co-respondents argue that the issue of bushfire risk is a “temporal one only”[58], given that most of the surrounding land has been identified for future residential development, and as such, the issue does not warrant a refusal of the proposed development.[59] I am not attracted to such an argument. It does not sufficiently acknowledge the known present bushfire hazard and the uncertainties as to when any future urban development will likely occur and what form it is likely to take. The court has wide powers in determining an appeal pursuant to s 495 of SPA, including approving only the parts of stage one that are not affected by the unacceptable bushfire risk (buildings 3-8 and 14-30) and stage two. The court is to assess whether any part of the proposed development is subject to unacceptable bushfire risks. That involves looking at the proposed built form and assessing the foreseeable bushfire risk to it. That is the task which I have undertaken in reaching my conclusion that only parts of the proposed development ought to be considered appropriate for approval.
The need for the proposed development
- [22]Both the first and second co-respondents and the respondent submit that there is a need for the proposed development.
- [23]The only expert engaged to give evidence in the field of economic need was Mr Duane, an experienced economist who regularly gives evidence in this court. He was called by the co-respondents. In analysing official population statistics Mr Duane noted that the overall rate of growth in Kuraby is around 0.8% annually, which is lower than the Brisbane average of around 1.2%, and that a slowing in growth in the Kuraby Local Area is now projected to occur.[60] In response to this Mr Duane stated:
“Overall, the reliance on population forecasts should be used with some caution given official projected growth can vary from actual. The lower growth now projected to occur within the Local Area, in my view, is not a reflection of what is happening on the ground. The popularity of the Local Area due to its proximity to infrastructure and employment and contributing to a compact urban form will continue to attract new development.”[61]
- [24]Thereafter Mr Duane acknowledged the very high ethnic population throughout Kuraby and surrounding areas.[62] On the supply side of the equation Mr Duane noted that in Kuraby and nearby suburbs the supply of new dwellings in recent years is “well above projected ongoing demand” which in his view “reflects the popularity of the area with overseas born residents looking to locate close to the ethnic communities in the Brisbane market.”[63] Such an analysis requires a monumental massaging of the population statistics. Fortunately it is corroborated in the evidence of Mr Jangda, a director of the first co-respondent who has relevant experience as the project manager of a number of townhouse developments in South-East Queensland in recent times.[64] He gave unchallenged evidence that, contrary to other similar developments in Mt Gravatt, Nerang and Doolandella, there was great demand for a 46 townhouse development at Eight Mile Plains which was completed in April 2015 and approximately four kilometres from the land.[65] There has also been a significant interest from prospective buyers in the proposed development.[66] Of the appellants, Mary Kissane acknowledged under cross-examination that there was a significant Muslim population in the Kuraby area.[67]
- [25]Returning to Mr Duane, he further noted that in the suburb of Kuraby, “there are a restricted number of sites which could accommodate growth in the future.”[68] He noted that the proposed development “is targeting affordable housing for large families”[69] and “would provide more affordable housing in an area that is very popular with a range of overseas born communities.”[70] Mr Duane also observed that the proposed development “represents an opportunity for infill development in close proximity to a significant amount of both public and private infrastructure, supportive of residential development.”[71] Ultimately, he concluded that there is “strong potential and clear community and economic need for the subject development.”[72] Given the growth projections for Kuraby, that is overstating the level of need in my view. However his evidence coupled with that of Mr Jangda is such that I am satisfied that there is a need for the proposed development.
Conflict and grounds
- [26]As noted above, the decision of the court must not conflict with City Plan 2000 unless there are sufficient grounds to justify the proposed development despite the conflict.[73]
- [27]The term “grounds” is defined in Schedule 3 of SPA in the following terms:
“1. Grounds means matters of public interest.
- Grounds does not include the personal circumstances of an applicant, owner or interested party.”
- [28]
“1. examine the nature and extent of the conflict;
- determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
- determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”[76]
The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.[77]
- [29]Three town planners gave evidence in the appeal. Mr Reynolds was called by the appellants, Ms Rayment was called by the respondent and Mr Buckley was called by the first and second co-respondents. Each of the town planners acknowledged that the land was suitable for Multiple dwellings (as the proposed development is now defined in City Plan 2014). Mr Buckley was of the view that the proposed development was appropriate when relevant planning principles were considered. In his view these principles were the efficient use of the land, general support for higher densities closer to public transport facilities, the absence of amenity impacts and the capacity of the land to contain impacts within its boundaries.[78] His views were supported by Ms Rayment who expressed the view that the proposed building design achieved appropriate amenity outcomes and that the continuation of the road network through the land provided the opportunity of connection to the neighbouring property to the south-east, facilitating further development within the precinct.[79]
- [30]Mr Reynolds, under cross-examination stated that, from his perspective, the key town planning issues that arose with regard to the proposed development were its density, character and amenity impacts.[80] Mr Reynolds emphasised that the land is designated for a much lower density than that contemplated by the proposed development in the Kuraby Local Plan.[81] In the course of his evidence Mr Reynolds demonstrated that other townhouse developments in the vicinity of the land were within 800 metres of the Kuraby railway station, unlike the proposed development.[82] In terms of amenity and character Mr Reynolds observed, firstly that building height was proposed for parts of the proposed development at three storeys in circumstances where no other development in Kuraby is three storeys in height.[83] Secondly Mr Reynolds took issue with the “very long runs of buildings, 100 metres on one side, 120 metres on the other side”[84] in stages one and two of the proposed development. This arises as a consequence of the very small separations between buildings and that the building density in the southern part of stage one and in stage two. This is then amplified by the height of the proposed development, being three storeys at this point.[85] The visual impact of his evidence was demonstrated by a montage showing the southern part of stage one and stage two of the proposed development.[86] I find that these impacts will be clearly perceived by the appellants.
- [31]I accept as stated above that should the proposed development be appropriate for the land in terms of its height, bulk and scale, the design elements are sufficient to ensure that, in the context of the greenfield status of the land, there are not conflicts with site specific Performance Criteria in the Residential Design – Low Density, Character and Low-Medium Density Code. Indeed no architectural evidence was called to suggest otherwise.
- [32]The planning issues referred to by Mr Reynolds result in conflict with the Kuraby Local Plan. Houses with dwelling densities of between 10 and 15 dwellings per hectare are “generally intended” for the land.[87] Within 400 and 800 metres of the Kuraby railway station, houses and multi-unit dwellings of up to 20 dwellings per hectare are “encouraged”.[88] Dwellings in this area “must be designed to ensure compatibility with the form and scale of detached housing”.[89] Within 400 metres of Kuraby railway station, multi-unit dwellings with densities of up to 25 dwellings per hectare are “encouraged”.[90]
- [33]Although the land is greater than 800 metres from Kuraby railway station, I accept that it is still within walking distance, albeit not comfortable walking distance of it, in circumstances where there will be a continuous footpath available to pedestrians between the proposed development and the station. The first and second co-respondents emphasise the need for flexibility when considering the wording of the Kuraby Local Plan in the context of the strategic intent to provide greater housing density close to public transport. Because nowhere within City Plan 2000 is there any restriction on building height for the land and because the relevant provisions of the Kuraby Local Plan merely state that the nominated densities are either “generally intended” or “encouraged”, the co-respondents submit that the conflict with City Plan 2000 “is not insignificant, but towards the lower end of the scale.”[91]
- [34]The respondent adopts a similar position. The differences between the permissive language referred to above in the Kuraby Local Plan compared to other provisions of City Plan 2000 which require “strict adherence” to a maximum GFA are emphasised.[92] In the circumstances the respondent submits that there is only a technical conflict with City Plan 2000.
- [35]I accept the evidence of Mr Reynolds as to the intensity of the proposed development from an amenity and character perspective. There is no support for development of this density anywhere within the Kuraby Local Plan area. Multi-unit dwellings are only specifically referenced within 800 metres of the Kuraby railway station. A mix of houses and multi-unit dwellings is intended at distances greater than 400 metres in circumstances where dwellings “must be designed to ensure capability with the form and scale of detached housing.”[93] Regardless of the fact that the proposed development is greater than 800 metres from the Kuraby railway station, it does not comply with this mandatory requirement. Although the houses owned by the appellants are large,[94] the form and scale of the parts of the proposed development described by Mr Reynolds above are not designed to ensure compatibility with the form and scale of detached housing, including adjoining detached housing. I therefore find that the nature and extent of the conflict with City Plan 2000 is obvious and significant.
- [36]For the sake of completeness I should state that I do not find conflicts with the generally worded Desired Environmental Outcomes for the Emerging Community Area identified above other than to the extent they are reflected in the relevant provisions of the Kuraby Local Plan.[95] These alleged conflicts were neither pressed nor expressly abandoned by the appellants.
- [37]I now turn to the planning grounds which are said to be relevant to the conflict identified above. Essentially these grounds are:
- Need;
- The facilitation of orderly development of the land and adjoining land that are earmarked for urban development;
- Providing additional housing density;
- Increasing the availability of housing choice in Kuraby that is within walking distance of the Kuraby railway station and in a location within close proximity to urban services (including numerous schools, places of worship and shopping centres) without unacceptable impacts on amenity;
- The efficient use of land and infrastructure; and
- The land is suitable for the proposed development which is similar to other development nearby.
- [38]Firstly with regard to need, I accept that while there is a need within the Kuraby area for development incorporating multi-unit dwellings, it has not been demonstrated that there is a sufficient unsatisfied demand for multi-unit dwellings which justifies the detrimental effects on the intended amenity and character for urban development on the land identified in the evidence of Mr Reynolds referred to above.[96]
- [39]While it is true that the proposed development will facilitate the orderly development of adjoining land earmarked for urban development, this benefit would also apply to a less intense residential development which would not have the character and amenity impacts referred to above. The same may be said of the benefits of providing additional housing density and housing choice in Kuraby within walking distance of the railway station and in proximity to urban services and facilities such as schools, places of worship, shopping centres and the like. It is the intention of the Kuraby Local Plan that land and infrastructure be used efficiently. However this desire is balanced by residential amenity and character considerations, ensuring that only land within a designated proximity to the Kuraby railway station is used for residential development at an intensity approaching that of the proposed development.
- [40]Finally I do not accept that the land is suitable for the proposed development given its impacts in terms of density, character and amenity noted above. It does not share the same characteristics in terms of planning intent compared to land in the vicinity which has been developed for multi-unit dwellings in the past. This is not a relevant ground, or if it is relevant, it is a particularly weak ground.
- [41]The planning grounds referred to above as a whole are, on balance, insufficient to justify approving the proposed development notwithstanding the conflicts with the Kuraby Local Plan identified above.
The weight to be given to City Plan 2014
- [42]The development application in respect of the proposed development was lodged ten days before City Plan 2000 was superseded and decided after City Plan 2014 came into force.[97] Given that City Plan 2014 represents a contemporaneous statement of the planning intent for the land, and considering the time which had elapsed since City Plan 2000 represented the respondent’s current planning intent, I am of the view that the relevant provisions of City Plan 2014 should be accorded significant weight. I have already expressed this view in the context of the bushfire hazard issue. So far as the planning issues remaining in the appeal are concerned it is significant that, pursuant to the Emerging community zone code, the land is now identified as suitable for urban purposes rather than generally suitable for urban purposes at some future time as was the case in the intent for the Emerging Community Area in City Plan 2000. Conversely, pursuant to the Kuraby neighbourhood plan code, the restrictions on dwelling density within 800 metres of the Kuraby railway station are confirmed in more mandatory terms, but are otherwise generally in accordance with the provisions in the former Kuraby Local Plan. I am therefore of the view that the relevant provisions of City Plan 2014 confirm the extent of the conflict of the proposed development with the planning intent for the area.
Conclusion
- [43]The proposed development is in substantial conflict with City Plan 2000 and there are insufficient grounds to justify approving the proposed development notwithstanding the conflict. The extent of the conflict is confirmed by the relevant provisions of City Plan 2014.
- [44]The design characteristics of the parts of stage one and all of stage two identified by Mr Reynolds are such that these conflicts remain, even in the absence of those parts of the proposed development which I have found are subject to unacceptable bushfire risks. Although the land is suitable for urban development incorporating multi-unit dwellings, the layout and design of the proposed development does not accord with the planning intent for the land evident in both City Plan 2000 and City Plan 2014.
- [45]I therefore allow the appeal.
Footnotes
[1] Outline of submissions of the appellants, para 2.2.
[2] Exhibit 8, paras 19 and 20.
[3] Outline of submissions of the appellants, para 1.4.
[4] Exhibit 9.
[5] Exhibit 31.
[6] Exhibit 9.
[7] Exhibit 8, para 24.
[8] Ibid, para 24 and Exhibit 9.
[9] Ibid, para 33 and 34.
[10] Exhibit 10.
[11] Exhibit 5, Part B, p5 and Exhibit 10.
[12] SPA s 326(1)(b).
[13] SPA s 326(2).
[14] SPA s 495(1).
[15] SPA s 495(2)(a).
[16] SPA s 493(2).
[17] Exhibit 8, para 44.
[18] Exhibit 8, para 14(a).
[19] Exhibit 2, Part B, p 131.
[20] Ibid.
[21] Exhibit 8, para 52.
[22] Exhibit 2, Part B, p 146.
[23] Ibid, p 85, 3.5.2.2.
[24] Exhibit 7, Part A, p 4.
[25] Ibid, p 5.
[26] Ibid, pp 1, 2, 4 and 9.
[27] Exhibit 8, para 14(b).
[28] Exhibit 2, Part C, p 380.
[29] Ibid, p 385.
[30] Outline of submissions of the appellants, para 1.13.
[31] Exhibit 2, pp 17 and 45.
[32] Exhibit 28, appendix 3.
[33] Ibid.
[34] Exhibit 28, p 29.
[35] Ibid, appendix 3.
[36] Exhibit 15, para 3.3.
[37] Ibid, para 3.1.
[38] Exhibit 16, appendix B.
[39] Exhibit 28, p 28 and Exhibit 16, p 6.
[40] Exhibit 16, p 12.
[41] Exhibit 24, para 3.1.
[42] Exhibit 28, para 4.3.2.4 for example.
[43] Exhibit 28, pp 5-13.
[44] T2-30, ll 25-30.
[45] T3-36, ll 20-30.
[46] Exhibit 28, para 4.5.5, see also T2-96, ll 1-10.
[47] T2-50-52.
[48] Exhibit 32.
[49] Exhibit 15, paras 4.6 and 6.10.
[50] Exhibit 23.
[51] Exhibit 31.
[52] Ibid.
[53] Exhibits 51, 52 and 53.
[54] T2-47, ll 25-30.
[55] Exhibit 23, p 3.
[56] Ibid, attachment 2.
[57] Exhibit 10.
[58] Submissions on behalf of the first and second co-respondents, paras 88-89.
[59] Ibid.
[60] Exhibit 27, paras 3.11 and 3.12.
[61] Ibid, para 3.13.
[62] Ibid, para 3.24.
[63] Ibid, para 4.5.
[64] Exhibit 13, paras 8 – 10.
[65] Ibid, para 11.
[66] Ibid, paras 13 – 19.
[67] T4-6, ll 20-25.
[68] Exhibit 27, para 4.6.
[69] Ibid, para 5.8.
[70] Ibid, para 5.9.
[71] Ibid, para 6.1.
[72] Ibid, para 8.1.
[73] SPA s 326.
[74] [2013] 2 Qd R 302; [2013] QPELR 188; [2012] QCA 370.
[75] [2003] 2 Qd R 441; [2003] QPELR 43; [2002] QCA 234.
[76] Westlink at [18].
[77] Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474 at [483].
[78] Exhibit 8, paras 90-91.
[79] Ibid, para 135.
[80] T4-95, ll 15-25.
[81] Exhibit 8, para 122.
[82] Exhibit 47.
[83] Exhibit 8, para 124.
[84] T4-89, ll 25-35
[85] Exhibit 8, para 125.
[86] Exhibit 56.
[87] Exhibit 2, Part B, p 131.
[88] Ibid.
[89] Ibid.
[90] Ibid.
[91] Submissions on behalf of the first and second co-respondents, para 104.
[92] Section 5.2.1, Intent for the Low Density Residential Area and s 5.4.1, Intent for the Low-medium Density Residential Area.
[93] Exhibit 2, Part B, p 131.
[94] Exhibit 58.
[95] DEOs 1 and 5 are arguably relevant and reflected in the specific provisions of the Kuraby Local Plan discussed above.
[96] Arksmead Pty Ltd v Gold Coast City Council & Ors [2001] 1 Qd R 347 at [13].
[97] Exhibit 8, para 44.