48 Stuart Pty Ltd v Brisbane City Council
[2016] QPEC 67
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- Unreported Judgment
- 48 Stuart Pty Ltd v Brisbane City Council[2016] QPEC 67
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48 Stuart Pty Ltd v Brisbane City Council[2016] QPEC 67
48 Stuart Pty Ltd v Brisbane City Council[2016] QPEC 67
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | 48 Stuart Pty Ltd v Brisbane City Council [2016] QPEC 67 |
PARTIES: | 48 STUART PTY LTD ACN 168 958 745 ATF 48 STUART UNIT TRUST Applicant v BRISBANE CITY COUNCIL Respondent |
FILE NO/S: | 3705/16 |
DIVISION: | Planning and Environment Court |
PROCEEDING: | Application |
DELIVERED ON: | 22 December 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 December 2016 |
JUDGE: | Bowskill QC DCJ |
ORDER: | The application will be allowed. The proceeding will be adjourned, in order to enable the parties to prepare an appropriate form of order, and the requisite notices under s 376 of the Sustainable Planning Act 2009. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – development approval for a multi-unit dwelling with visitor car park spaces to remain unimpeded by gates or other structures – where the applicant requested changes to the approval in order to install garage doors – whether the proposed change constitutes a permissible change Sustainable Planning Act 2009, ss 367, 369, 374 and 375 Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 Harris v Scenic Rim Regional Council [2014] QPELR 324 Heilbronn & Partners Pty Ltd v Gold Coast City Council [2005] QPELR 386 Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561 Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405 Seabridge Pty Ltd & Anor v Council of the Shire of Beaudesert & Anor [2001] QPELR 191 Steendyk v Brisbane City Council & Ors [2016] QPEC 47 |
COUNSEL: | M Batty for the Applicant M Osborne, solicitor, for the Respondent |
SOLICITORS: | Broadley Rees Hogan for the Applicant Brisbane City Legal Practice for the Respondent |
Introduction
- [1]The applicant, 48 Stuart Pty Ltd, owns land at 48 Stuart Street, Bulimba, on which there is a multiple unit dwelling complex comprising six units. The development for this complex was approved by the Council in January 2015, following impact assessment under Brisbane City Plan 2000.[1] In March 2015, Lavina and Jeffrey James, who had made a submission objecting to the development, appealed against the Council’s decision to approve the development. On 5 June 2015, this Court made orders in the appeal, conditionally approving the proposed development.[2]
- [2]The applicant now wishes to make a change to the development approval, on the basis that it is a permissible change, as defined in s 367 of the Sustainable Planning Act 2009. The change involves the installation of roller (garage) doors to all visitor and resident car park spaces in the development. Because the development approval was ultimately granted by the Court, following the James’ appeal, it is the Court that is the responsible entity, to determine the change application.
- [3]Mr James had previously sought to join this proceeding, by filing a notice of election to co-respond. However, I was advised by the legal representatives for the applicant and the Council that, upon being told that he would need to make a formal application under rule 69 of the Uniform Civil Procedure Rules 1999 to be joined as a party[3] (which would be opposed by the applicant, and potentially expose him to costs consequences), Mr James elected not to do so. Nevertheless, the Council, quite properly, ensured that Mr James’ objection to the proposed change was placed before the Court. The change application is opposed by the Council.
The proposed change
- [4]The development is a multiple dwelling complex, comprising six two-storey, three bedroom units. The design of the complex has a driveway down the middle, with three units on either side of the driveway. Whilst the address of the complex is 48 Stuart Street, the driveway is accessed from Eton Street (the complex being on the corner of those two streets).[4] Underneath each unit there is provision for two car parking spaces, one for the resident of the unit and one for visitors to that unit, provided by an undivided area (much as a double garage might appear in a residential house). These car parking spaces are open, in the sense that although they are bounded at the back and sides by the walls of the unit complex, and covered overhead by the first floor of the complex, the entry to each car parking space is open.
- [5]The relevant conditions of the court approval in relation to car parking spaces are clauses 10 and 25, which provide as follows:
“10) Visitor Parking
Visitor car parking spaces must:
- ‐Be used by bona fide visitors to the premises only;
- ‐Be clearly labelled as ‘Visitor Parking’; and
- ‐Remain unimpeded by landscaping, water tanks, storage (temporary or otherwise), gates or any other fitting, fixture, or structure to provide 24 hour unrestricted access for bona fide visitors.”
“25) Access, Grades, Manoeuvring, Carparks, Signs and Lines
Provide access, parking and manoeuvring for vehicles on-site in accordance with the relevant Brisbane Planning Scheme Codes/Polices, as indicated on the approved drawing(s), and including the following:
…
iii. Parking on the site for twelve (12) cars and for the loading and unloading of vehicles within the site. Six (6) of these parking space are to be provided for residents and six (6) unrestricted spaces for visitors. Provide Visitor Park Signage at the site entrance to guide the visitors into the site visitor parking spaces.”
- [6]The change which is proposed is to add roller (garage) doors in front of each of the six (combined, resident and visitor parking, for each unit) car parking spaces.
- [7]In order to permit this to occur, the changes sought to be made to the approval are to:
- (a)amend condition 10 to read:
- (a)
“Visitor car parking spaces must:
- ‐Be used by bona fide visitors to the premises only:
- ‐Be clearly labelled as ‘Visitor Parking’; and
- ‐Remain unimpeded by landscaping, water tanks, storage (temporary or otherwise), gates or any other fitting, fixture, or structure to provide 24 hour unrestricted access for bona fide visitors.”;
- (b)amend condition 25(iii) to read:
“Parking on the site for twelve (12) cars and for the loading and unloading of vehicles within the site. Six (6) of these parking space are to be provided for residents and six (6) unrestricted spaces for visitors, in the form of one (1) exclusive visitor park per unit. Provide Visitor Park Signage at the site entrance to guide the visitors into the site visitor parking spaces”; and
- (c)replace the plan included in the court approval with a proposed new plan marking the provision of garage doors in front of the visitor and resident parking areas.[5]
- [8]These amendments are sought in order to provide a greater level of safety and security for residents of the complex.[6] Ms Davidson, the director of the applicant, describes an incident which occurred in May 2016, during the course of construction, in which goods worth approximately $20,000 were stolen from the parking space of one of the units, as well as another trespass which occurred more recently. She also says that the market for units in the complex is owner-occupiers, and that buyers are requesting secure car parking,[7] which is presently precluded by the wording of the approval. Ms Davidson says that garage doors would provide increased security and amenity for resident owners with young children, by restricting their access to the driveway.[8] Supporting that, there is evidence from an owner of one of the units, who has a young child, who expresses concerns for the safety of her child if they are not able to enclose their carport, as well as concerns for the security of their property or possessions which might be stored in their carport.[9] Another person, a single mother who has purchased a unit which is due to settle shortly, expresses the same concerns, about safety of her children, in terms of access to the complex driveway, as well as security concerns, in terms of access to her unit through the laundry door which is in the car parking space.[10]
Permissible change – relevant principles
- [9]In determining this application, the Court must be satisfied, on the balance of probabilities, that the addition of roller (garage) doors constitutes a “permissible change”. Under s 367(1) a “permissible change” for a development approval is, relevantly,[11] a change to the approval that would not, because of the change:
- (a)result in a substantially different development; or
- (c)for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed.
- (a)
- [10]If satisfied the change is a permissible change,[12] under s 374 the Court as the responsible entity must assess the request having regard, to the extent relevant, to the matters set out in s 374(1). Having assessed the request under s 374, the Court must decide to approve the request, with or without conditions; or refuse the request (s 375(1)).
Substantially different development
- [11]There is no definition of “substantially different development” in the Planning Act. It is to be given its ordinary common sense meaning,[13] although there is assistance to be gained from statutory guideline 06/09, made under s 759(1) of the Planning Act. Changes that are identified in the guideline as some that may result in a substantially different development include changes that:
- (a)involve a new use with different or additional impacts;
- (b)dramatically change the built form in terms of scale, bulk and appearance;
- (c)change the ability of the proposal to operate as intended;
- (d)remove a component that is integral to the operation of the development;
- (e)significantly impact on traffic flow and the transport network, such as increasing traffic to the site; or
- (f)introduce new impacts or increase the severity of known impacts.
- (a)
- [12]The guideline is no more than that. The examples given are not exhaustive, nor are they determinative – they are simply some examples of changes that may result in substantially different development, depending on the individual circumstances of the case.[14] The assessment of whether a proposed change would, or would not, result in a substantially different development involves matters of fact and degree, to be considered broadly and fairly, having regard to the overall development application.[15] It is relevant to consider the changes from a qualitative as well as a quantitative perspective, consistently with the guideline which refers not only to the physical degree of change, but to its impacts.[16]
Likelihood of submission
- [13]I adopt the following summary of relevant principles from Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [75]:
“(1) The words ‘because of the change’ … require a causal connection between the permissible change and a likely submission. The question is whether the proposed change would provoke an adverse submission that was not provoked by the pre-existing approval as amended from time to time.
- (2)‘Likely’ in this context conveys a notion of something substantial, and ought to be construed as a ‘real’ or ‘not remote’ chance or possibility regardless of whether it is less or more than 50 per cent.[17] In relation to causing a person to make a submission, the word is synonymous with ‘prone’, ‘with a propensity’ or ‘liable’.
- (3)Consideration must be given to the likelihood of submissions ‘objecting to the proposed change’ being made ‘on a relevant basis at least’. The question here is whether the submission raises a new objection about the change itself and not about the pre-existing approval as amended from time to time.
- (4)The potential submitter must be assumed to be objective and rational, and to be acting reasonably. …”[18]
- [7]
- [8]
- [9]It is appropriate to have regard to evidence before the Court which indicates that there are people who would wish to object.[23] However, the mere fact that a prospective submitter has communicated with the Council, and asserted a desire to make a submission objecting to the proposed change, does not affect the operation of the statutory provision.[24]
- [10]It is also relevant, but not determinative, to take into account that, in this case, if a new development application was required to be made, in order to obtain approval for the proposed change, it would be code assessable under Brisbane City Plan 2014,[25] with local residents having no submission (or appeal) rights.[26]
Is the proposed change a change that would not, because of the change, result in a substantially different development?
- [14]The applicant submits that the proposed change is not such as to result in a substantially different development because:
- (a)the change does not fall within any of the categories identified by statutory guideline 06/09, which may indicate a substantially different development;[27]
- (b)in particular, the change would not change the ability of the proposed development to operate as intended and would not cause any material change to the traffic and parking arrangements related to the subject site;[28]
- (c)the form and function of the development would remain unchanged; and
- (d)the change is beneficial in that it provides for greater safety and security.
- (a)
- [15]In opposing the application, the Council contends that the proposed change, to add roller (garage) doors to the car parking spaces, will result in a substantially different development because it will change the ability of the proposal to operate as intended. The Council’s argument is that, once enclosed, the visitor car parking spaces will no longer be used for visiting car parking – they will be used, by the residents of the units, for other purposes.[29]
- [16]In my view, the proposed change is not one that, because of the change, would result in a substantially different development, within the meaning of s 367(1)(a).
- [17]The form and function of the unit development is unchanged. In particular, the number of visitor car parking spaces (six), and the requirements that they be used by visitors only, be clearly labelled as visitor parking, and remain unimpeded by certain things including storage, are unchanged. Notably, the provision of six visitor car parking spaces is in excess of what is required under the Council’s Transport, Access, Parking and Servicing (TAPS) planning scheme policy, which would have required the provision of only a single shared visitor parking space.[30]
- [18]Further, the uncontradicted and unchallenged evidence of Mr Douglas, the traffic engineer, which I accept, is that:
- (a)the installation of garage doors is unlikely to materially alter the ability of visitors to park on site because:
- in so far as uninvited or unfamiliar visitors (such as postal or delivery drivers) are concerned, the driveway to the complex, being on Eton Street (rather than on the Stuart Street address) is “neither prominent nor inviting” – unless such a visitor is aware in advance that visitor parking is provided on-site, given the address of the complex is 48 Stuart Street, they would be unlikely to navigate their way to the driveway off Eton Street, but would instead be likely to park in Stuart Street or the nearby Barramul Street – which they would be doing now – and the addition of garage doors is unlikely to materially impact the decision of such uninvited or unfamiliar visitors as to where to park;
- in so far as invited, or repeat visitors or service people are concerned, they would become aware of the visitor parking space provided for each unit, and the occupant of the unit, expecting the visitor, would be able to open the garage door for them to park; and
- (b)accordingly, the “installation of garage doors on the visitor parking spaces is … unlikely to result in any material changes to the traffic and parking arrangements related to the subject site”, in particular, is unlikely to materially increase visitor parking demand on the surrounding streets.[31]
- (a)
- [19]In relation to the Council’s argument – that the change will result in a substantially different development, because the visitor parking spaces will no longer be visitor parking spaces – there are a number of reasons why that ought not be accepted:
- (a)First, there was no evidence lead by the Council to support the contention that, upon the installation of garage doors, the visitor car parks will no longer be visitor car parks. The evidence before the Court is in fact contrary to that, from Ms Fiers, an owner of one of the units, and Ms Lofting, who has recently purchased another of the units – both of whom confirm that they will continue to provide the visitor car park for visitors.
- (b)In any event, the changes proposed to clauses 10 and 25 of the approval only remove the requirement for there to be unrestricted access to the visitor car parks. It remains a requirement of the development approval that six car parking spaces are provided for visitors, in the form of one exclusive visitor park per unit; that those car parking spaces be used by bona fide visitors to the premises only; that they be unimpeded, including by storage (whether temporary or otherwise) and that they be clearly labelled as “visitor parking”.
- (c)In deciding this application, the Court is to proceed on the basis that the developer will comply with the conditions of its approval, which would include ensuring that any residents of the complex do so also;[32] rather than to proceed on the basis of an assumption that people would flout those conditions, and so commit a development offence.
- (a)
- [20]That was the only basis on which the Council contended that the change was such as to result in substantially different development. In terms of the other matters referred to in the guideline, I do not consider that there is any basis to find that the change proposed here would result in substantially different development. On the basis of Mr Douglas’ evidence, I do not consider that the proposed change could be said to increase the severity of known impacts associated with the development, relevantly, parking issues on the street. Such impacts as are created by the development will remain as they already are.
- [21]The applicant submits that the fact the change is beneficial, because it improves safety and security for residents of the complex, is also indicative that the change does not amount to “substantially different development”. Whilst I accept that is a relevant factor, it is not an overwhelming or determinative one. If the change otherwise was found to be a substantially different development, for example, because it involved a new use, or introduced new impacts, the definition of “permissible change” would not be met, even if it was beneficial to residents.
- [22]I find that s 367(1)(a) is satisfied.
Is the change one that would not, because of the change, be likely to cause a person to make a properly made submission objecting to the change, if the circumstances allowed?
- [23]The applicant submits that s 367(1)(c) is also satisfied, because:
- (a)the development would continue to provide six visitor car parks, well in excess of the Council’s TAPS planning scheme policy;
- (b)the uncontradicted town planning evidence before the Court is that the development, both as originally proposed and with the proposed change, “aligns with the requirements of the Brisbane City Plan 2000 and the Brisbane City Plan 2014”[33] – a matter which is highly relevant in determining whether a rational and reasonable person would be likely to make a properly made submission, if the circumstances allowed;
- (c)the fact that the changes would not result in a “substantially different development” is an indicator that a person, acting reasonably, would not make an adverse submission which was relevant, rational and objectively based, particularly where there is no evidence before the Court that the changes would result in additional amenity impacts, or unacceptable new impacts;[34]
- (d)given that a development application for the proposed development, if remade now, would be code assessable under City Plan 2014, it is relevant that circumstances would not allow a properly made submission to be made objecting to the changed development;
- (e)according to the evidence of Mr Douglas, the traffic engineer, which was uncontradicted and unchallenged, there would be no material change to the traffic and parking arrangements in and around the land, as a result of the proposed change; and
- (f)although local residents have raised concerns, that does not automatically mean s 367(1)(c) is not met; many of the concerns raised are not causally related to the proposed change; concerns raised generally about traffic are not supported by the evidence; and the concerns raised about the addition of garage doors turning all parking in the complex into resident parking are not soundly based.
- (a)
- [24]The Council submits that s 367(1)(c) is not met, on the basis of a number of submissions it has received in relation to the proposed change, which were placed before the Court.[35]
- [25]There has clearly been, and remains, a high level of opposition to this development at 48 Stuart Street – as counsel for the applicant describes it, “the proposed development has caused significant unhappiness in the community”. But the reality is, the development has been approved, and constructed; and this change application cannot affect that. On this application, I am only concerned with the nature of the proposed change and, for the purposes of s 367(1)(c), whether that is something that would be likely to cause a person (being an average, objective and rational person, acting reasonably, and fully informed) to make a (relevant), properly made submission objecting to the proposed change, that would not have been prompted by the original development.
- [26]The email correspondence which has been sent to the Council raises a variety of issues, consistent with the evident continuing objection to the overall development, many of which are unrelated to the current proposed change. The matters raised in the emails from local residents related to the proposed change – installation of garage doors – are as follows:
- (a)Ms Spreadborough, who lives in Smallman Street (which is parallel to Stuart Street, also intersected by Eton St), objects to the application to have garage doors fitted “as there will not be any ‘accessible’ visitor/trades people parking available”;[36]
- (b)Ms Davies, who lives in Stuart Road, objects on the basis that enclosing the car parking spaces “effectively turns all the parking spaces into resident’s parking spaces”; and “an enclosed parking space is not accessible to visitors, tradespeople or body corporate representatives, who would all have to park on the street”;[37]
- (c)Mr and Mrs Bishop, who also live in Stuart St, object to the change on the basis that it “would result in there being no visitor parking for 6 units, which is ridiculous”;[38]
- (d)Ms Furlonger, who lives in Smallman Street, also objects to the change on the basis that it will result in there being no visitor parking;[39]
- (e)Mr and Mrs Hansen, who also live in Smallman Street, object on the same basis, that “if the garages are allowed to be enclosed, there will no longer be any allocated visitor parking spaces as decreed by the Council”;[40]
- (f)Mr James, who lives in Smallman Street, also objects to the change on the basis that it will result in each unit being “able to lock up 2 parking spaces with no visitor parking. Any bona fide visitor, workman, or tradie would have to park some distance away on our already congested streets, whilst up to 12 vacant parking spaces may be behind closed doors”;[41]
- (g)Mr Crichton, who lives in Eton Street, objects on the basis that he understands the “developers have made a request to remove their visitor parking and put garage doors up”.[42]
- (a)
- [27]I accept the observations by Mr Douglas[43] (his evidence being uncontradicted and unchallenged) in relation to the broader, traffic related issues referred to in the local residents’ emails, and also the following points made by him:
- (a)the issues raised, about people parking on the street, whether that be Stuart Street or in Smallman Street, are existing issues, and the addition of garage doors is unlikely to increase on-street visitor demands;
- (b)(as already mentioned above) it is to be expected that unfamiliar visitors would not use the visitor car parks in any case (whether there are garage doors or not), due to their location; whereas invited or repeat visitors will be made aware of the visitor parking; and
- (c)the visitor parking signage, which now appears at the site entry and above each visitor parking space, is expected to remain in place (to which I would add, this is a requirement of the existing development approval in any event, and not sought to be changed).
- (a)
- [28]Mr Osborne, the solicitor for the Council, also emphasised that the existing conditions, requiring the visitor car parks to be unrestricted (unenclosed), were imposed by the Council, in the original approval, prior to the submitters’ (Mr and Mrs James) appeal; and indeed prior to any input from any submitters.[44]
- [29]The submissions which were made, objecting to the original development application, are in evidence.[45] The objections were put on a number of bases, with a strong focus on the undesirability of a multiple unit dwelling, providing for six units, on what was a single house block, in this area. A number of the submissions make reference to the pre-existing traffic congestion, and street parking problems, particularly in Eton Street. In that context, the proposal to have the driveway access to the complex from Eton Street, rather than Stuart Street, was objected to. Relevantly for present purposes a number of the objectors made reference to the 12 car parking spaces provided, and the impact (on traffic congestion, pedestrian safety, and noise) that these additional “12 cars coming in and out on this quiet street” would have.[46]
- [30]It appears from the submissions that the submitters may not have appreciated that of those 12 car parking spaces, six were to be for residents, and six for visitors; or at least, even if they did, that they were expressing their concerns, on a worst case basis, that both carparks, for each unit, would regularly be used.
- [31]The only reference to visitor parking in these original submissions is in a second submission by Mr James, made on 12 November 2014 (in response to the applicant’s town planner’s (Mr Nguyen) response to the public submissions), in which Mr James refers to “A17.3” (which I take to be a reference to acceptable solution A17.3 in City Plan 2000) and says “the design does not show discernible visitor parking from the street”.[47]
- [32]The following are important points:
- (a)It is necessary to pay careful attention to the objections that have been communicated by local residents to the Council, about the proposed change. But, as already observed, that does not automatically mean s 367(1)(c) is not satisfied – it remains for me to determine, objectively, on the basis of the authorities which have considered that section, and on the basis of the evidence before me, whether I am satisfied of the matter referred to in s 367(1)(c).
- (b)There does appear, from the emails exhibited to Mr Osborne’s affidavits, to be a misapprehension as to the change which is proposed by the applicant – that is, the foreshadowed objection on the basis that the effect of the change is that there will no longer be any visitor car parking. As already discussed, that is incorrect. There are six visitor parking spaces provided for in the approved development; and there will remain six visitor parking spaces. Under the express terms of the development approval, which will remain unchanged, they are required to be kept available for visitors; to be used only by visitors, to be labelled as “visitor parking”, and to be unimpeded (clause 10); and there is required to be signage at the site entrance to guide visitors to them (clause 25). As already noted, this application is to be determined on the basis of an expectation that those conditions will be respected, not flouted.
- (c)In so far as the residents’ foreshadowed objections otherwise deal with traffic matters, I am not satisfied, on the basis of the evidence before the Court (principally, that of Mr Douglas), that it can be said any such matters are causally connected to the proposed installation of garage doors (as opposed to being pre-existing and ongoing concerns, related to this development).
- (d)The objections made to the development when originally proposed address traffic and parking issues on the basis that the proposal would involve 12 cars driving in and out of Eton Street. I infer from those objections that the submitters did not differentiate between resident’s parking spaces, and visitor parking spaces. In those circumstances it is difficult to see that any different form of objection would have been prompted, had the proposed development originally included garage doors.
- (e)The proposed change is not such as, because of the change, to result in a substantially different development, among other things, because it involves no new impacts, and no increase in the severity of existing known impacts; and no change in the way in which the proposal was intended to operate.
- (f)If the change is not permitted to be made, and a further development application is required to be made, it will be code assessable, with the local residents having no submission (or appeal) rights.
- (a)
- [33]I do not lightly dismiss the material before the Court from the local residents, in determining whether s 367(1)(c) is met. The purpose of s 367(1)(c) is to protect the right of members of the community to have their say in relation to a proposed change, where they previously had such a right in relation to the impact assessment of a proposed development. But that must be balanced with the desirability of a flexible approach to requests to modify development proposals,[48] where that is appropriate.
- [34]On balance, I am satisfied that the proposed change – of installing garage doors – is a change that would not, because of the change, be likely to cause an objective person, fully informed as to the nature and effect of the proposed change, and the reasons why it is being sought, to make a reasonable, and relevant submission, objecting to the change, if the circumstances allowed.
- [35]I am therefore satisfied that s 367(1)(c) is met. It follows that I am satisfied the proposed change is a “permissible change” within the meaning of the legislation.
Assessment – should the proposed change be approved?
- [36]Under s 374(1), to the extent relevant, the responsible entity (in this case, the Court) must assess the request for a permissible change, having regard to (a) the information the person making the request included with the request; (b) the matters the responsible entity would have regard to if the request were a development application; (c) any submissions made about the original application; and (d) any notice about the request given under s 373.[49]
- [37]The information provided by the applicant has already been referred to, including the evidence of Mr Nguyen, the town planner, and Mr Douglas, the traffic engineer.
- [38]Under s 374(1)(b) I must have regard to the planning scheme provisions applying when the original application was made (City Plan 2000), but may give the weight I consider appropriate to the planning scheme provisions applying when the request was made (City Plan 2014) (s 374(2)). I will address this shortly.
- [39]In relation to s 374(1)(c), I have already referred above to the submissions made about the original application. There were 13 submissions made (two of which were from Mr James). Mr James, in his original submission (dated 14 September 2014) did not raise any issues about car parking spaces or traffic.[50] As already noted, in a further submission (dated 12 November 2014), responding to the applicant’s town planner’s reply to the public submissions, Mr James did refer to A17.3, and state that “the design does not show discernible visitor parking from the street”.[51] Another eight of the submissions raised concerns about the impact of the development on traffic congestion, traffic safety, and parking, in some cases generally, and in a number, expressly as a result of the 12 additional cars coming into the street.[52] The remaining three submissions do not make any reference to traffic / car parking.[53]
- [40]As for s 374(1)(d), the Council filed a notice under s 373 on 17 October 2016, that it objected to the change being made, because insufficient information had been provided, and requiring “amended plans showing how the visitor parking spaces will look and function to demonstrate that the proposal will operate as originally intended”. As is apparent from the discussion above, it was Council’s position, on the hearing of this application, that the change had the effect that the visitor parking spaces would no longer be visitor parking spaces. In addition, at the hearing, the Council relied on the local residents’ correspondence as demonstrating s 367(1)(c) was not satisfied.[54]
- [41]The town planner whose evidence the applicant relied upon, Mr Nguyen, notes the following, among other things:[55]
“a) The Submitter Appeal lodged with the Planning and Environment Court did not raise any concerns regarding the number of car parking spaces provided onsite…
b) It is noted that 14 submissions were received during the original development application. The issues raised relating to traffic was congestion, traffic flow and increased on street parking. The approved car park layout and manoeuvring on site complied with the TAPS Policy and provisions of the Planning Scheme. Furthermore, the site provides for an oversupply of car parking spaces, thus on street parking will be limited as each unit is provided with 2 spaces. Further, the ‘additional’ traffic flow is consistent with the intent of the area and the road network.
c) The development provides for an oversupply of car parking (ie 12 spaces approved, 10 spaces required). As such, the enclosing of the car parking areas will not result in an overall shortfall of parking over the site.
d) Having regard to the planning instruments, plans, codes, laws or policies applying if the application were made today, I believe the proposal would be consistent with the current Planning Scheme. It is noted that the previous application was lodged under the Brisbane City Plan 2000 and the site was contained within the Low Medium Density Residential Area and the Bulimba District Neighbourhood Plan. The City Plan 2000 intended the Low Medium Density Residential location to provide for a mix of detached houses and Multi-Unit Dwellings between 2 and 3 storeys in height. As such, the previous approval was consistent with the Schemes intent for the area and reflected a building height, built form and scale that was in keeping with the area.
Furthermore, under the current Brisbane City Plan 2014, the site is contained within the Low Medium Density Residential (2 or 3 storey mix) Zone and the Bulimba district Neighbourhood Plan. The purpose of the Low-medium density residential zone code is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings supported by community uses and small-scale non-residential services and facilities that cater for local residents. Furthermore, the site has a building height of 2 storeys and 9.5 m above ground level.
As such, the approved design aligns with the requirements of the Brisbane City Plan 2000 and the Brisbane City Plan 2014. Specifically, the approved development provides for a compliant built form, building height, manoeuvring and excess car parking. In view of the above, the change aligns with the planning instruments, plans, codes, laws or policies applying to the application if it were made today.
e) I am aware that on or about 23 July 2014, Brisbane City Council allowed a permissible change to a development approval for the inclusion of garage doors to open garage car spaces for multiple dwellings at 431 Hawthorne Road, Bulimba. 431 Hawthorn Road, Bulimba is approximately 600m from the site the subject of the Order and current Application.”
- [42]In relation to point a) made by Mr Nguyen (that the submitter appeal did not raise concerns regarding the number of car parking spaces provided onsite), it may be observed that clauses 10 and 25 were already included in the approval granted by the Council (providing for the 6 resident parking spaces and 6 unrestricted visitor parking spaces). Also, I note that the mediation agreement reached in relation to the James’ appeal (described as open, and put in evidence[56]) does refer to the applicant providing revised plans showing “amended labelling for visitor parking to show as designated visitor parking for each unit”, so presumably this issue was discussed to some extent in the context of that appeal (perhaps consistently with the issue raised in Mr James’ second submission, about whether A17.3 was satisfied (that the location of visitor parking is discernible from the street)).
- [43]In relation to Mr Nguyen’s reference to the proposal providing for an oversupply of parking spaces, I note that Mr Douglas, in his report, says that under the TAPS planning scheme policy, there is only a requirement for a single, shared visitor parking space for the 6 units combined. This is on the basis that the TAPS policy requires a minimum of 0.15 visitor parking spaces per dwelling (0.15 x 6 units = 0.9). But what Mr Douglas does not refer to is that each 3 bedroom dwelling is required to have more than one car parking space,[57] apart from the visitor car park. This appears to be the explanation for the difference between what Mr Nguyen says, and what Mr Douglas says, about the extent of the excess of car parking spaces provided for. In any event, I accept the evidence that there are more visitor parking spaces provided for in this complex than the minimum required, either under City Plan 2000, or under the current TAPS policy under City Plan 2014.
- [44]Under the relevant code in City Plan 2000,[58] performance criteria P16 provided that “vehicle access and parking must be safe and convenient for residents, visitors and service providers”. P16 also provided that:
“Resident and visitor parking provision must be provided according to:
- the number, size and type of dwellings proposed
- the availability and acceptability of kerbside parking adjacent to the site
- local traffic or parking management
- the likely preference of the occupier or target market.”
- [45]The acceptable solution, A16, referred to the provision of 1.25 parking spaces per larger dwelling (or 1 if close to public transport), plus .25 spaces per dwelling for visitors.
- [46]Performance criteria P17 provided that “vehicle access and parking design and location must minimise impacts on neighbouring dwellings”. Relevantly, acceptable solution A17.3 provided that “the location of visitor parking is discernible from the street”.
- [47]Under City Plan 2000, the acceptable solutions represent the preferred way of complying with the performance criteria, although there may be other ways of complying with the performance criteria (clause 1.1). Even with the proposed change – adding garage doors – the conditions regarding car parking are consistent with these provisions from City Plan 2000. The number of spaces provided exceeds the minimum required; the location of the visitor parking is discernible from the street, with the presence of the signs.
- [48]Turning to the current provisions, under the applicable multiple dwelling code in City Plan 2014, one of the overall outcomes is that development provides parking “which is integrated into the site and building and does not negatively impact on the site or adjoining sites or the quality and amenity of the streetscape” (s 9.3.14.2(p)). The relevant performance outcome, PO22, is that “development … provides vehicle access and parking that must be safe and convenient for residents, visitors and service providers”. The acceptable outcomes include AO22.1, which refers to vehicle access, parking, loading/unloading facilities and associated manoeuvring areas on site being designed and provided for in accordance with the TAPS code; and AO22.2, which refers to ensuring the location of visitor parking is discernible from the street; clearly signposted; not located behind a security barrier; not located on both sides of the driveway and separated by a 1m wide landscaping strip from the street frontage boundary.
- [49]Under City Plan 2014, each of the performance outcome, and acceptable outcomes are alternatives – if any of them are satisfied, then the code is complied with (5.3.3(c)(iii)). So the fact that the whole of AO22.2 is not met in a given case – for example because the visitor parking is located behind a security barrier – does not mean that AO22.1, or for that matter PO22, is not met.[59]
- [50]Having regard to the relevant provisions of City Plan 2000 (as the provisions applying when the original application was made), as required by s 374(2), I can see no reason why the change ought not be approved. In relation to the current planning scheme provisions, to which I may also have regard, under s 374(2), I accept the evidence of Mr Nguyen that the proposed change aligns with those also. No contrary town planning evidence was called by the Council. Mr Nguyen was not required for cross-examination. And the Council did not make submissions, on the hearing of this application, as to any reason why, by reference to the planning scheme provisions (previous or current), the proposed change ought not be approved (the Council’s arguments on this application being limited to contending the change is not a permissible change).
- [51]In so far as it may be inferred that the intent of the current planning scheme provisions is that the visitor car parking space (only one space being required to be provided for the whole of the complex) is a communal one, to which there is unrestricted access, in the circumstances of this case, where:
- (a)rather than only one communal space, there is a visitor parking space provided for each unit; and
- (b)the conditions of the approval require that space to be kept available for visitors, unimpeded by things including storage, and to be clearly labelled as visitor parking,
- (a)
it seems the outcome in this case, even with the proposed change, is more beneficial – to residents of the complex, visitors to it, and surrounding residents (in terms of street parking) – rather than detrimental, because of being non-communal.
Conclusion
- [52]In circumstances where:
- (a)I am satisfied the proposed change is a “permissible change” within the meaning of s 367(1), for the reasons discussed above;
- (b)if a new development application were required to be made, in order to obtain approval for the installation of the garage doors at the complex, it would be code assessable;
- (c)there is unchallenged, and uncontradicted evidence from Mr Nguyen, a town planner, both as to the statutory test under s 367, but also, for the purposes of s 374(1), as to compliance with the relevant planning scheme provisions;
- (d)on my own analysis, I am satisfied it is appropriate to approve the request, having regard to the matters I am required to under s 374(1);
- (e)there is unchallenged, and uncontradicted evidence from Mr Douglas, a traffic engineer, that the installation of the garage doors on the visitor parking spaces is unlikely to result in any material changes to the traffic and parking arrangements related to the site;
- (f)there are more visitor car parking spaces provided at the complex, than the minimum required by the planning scheme; and
- (g)the proposed change is sought in order to enhance and improve the safety and security of residents of the complex,
- (a)
I am satisfied it is appropriate to approve the applicant’s request to make the change.
- [53]In addition to the remaining, unchanged conditions 10 and 25 (as set out in paragraph [7] above, showing the changes marked up), I propose to order that another condition be added, consistent with a suggestion made by Ms Davidson in her second affidavit at [7], which is a requirement that the applicant install an intercom / doorbell system, adjacent to each visitor parking space, outside the roller (garage) door, to aid visitors in contacting the resident upon their arrival, and to gain access to the car parking spaces. To be clear, what is contemplated is an intercom, with an accessible button that a visitor, in a vehicle, could press, and speak to the resident of the unit they are visiting, in order to gain access to the car park (whether that is by the resident manually opening the door, or doing so remotely, if that is possible). This would enhance the convenience and accessibility of the visitor parking, notwithstanding the presence of the garage doors.
- [54]The proceeding will be adjourned, to enable the parties to prepare a draft order, reflecting these reasons, and also the preparation of the appropriate notices under s 376.
Footnotes
[1]Affidavit of Mr Connellan, filed on 9 December 2016, at [6].
[2]See exhibit VAN-01 to Mr Nguyen’s affidavit, filed on 14 September 2016, at p 3 and following.
[3]The procedure of electing to be a co-respondent only being available in relation to an appeal (see, relevantly, ss 485 and 488 of the Planning Act, and r 14 of the Planning and Environment Court Rules 2010).
[4]Affidavit of Mr Nguyen, filed 14 September 2016, at pp 22 and 23 of the exhibits. See also the report of Mr Douglas, traffic engineer, at [5].
[5]Affidavit of Mr Nguyen, filed 14 September 2016, at p 30 of the exhibits.
[6]Affidavit of Ms Davidson, filed 14 September 2016, at [3].
[7]This is supported by the evidence from Mr Dean, the real estate agent engaged to market and sell the units, in his affidavit filed on 9 December 2016, at [15] and [16].
[8]Affidavit of Ms Davidson at [5].
[9]Affidavit of Ms Fiers, filed 9 December 2016, at [4]-[6].
[10]Affidavit of Ms Lofting, filed by leave 12 December 2016, at [4]-[5].
[11]It was not controversial that none of the other sub-sections of s 367(1) are raised here.
[12]Steendyk v Brisbane City Council & Ors [2016] QPEC 47 at [54]-[57].
[13]Explanatory notes to the Sustainable Planning Bill 2009, p 185.
[14]Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512C-D; Dickson Properties Pty Ltd v Brisbane City Council & Ors [2015] QPELR 595 at [22].
[15]Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 512E; Emaaas Pty Ltd v Brisbane City Council & Ors [2014] QPELR 579 at [18].
[16]Emaaas Pty Ltd v Brisbane City Council & Ors [2014] QPELR 579 at [15].
[17]See also Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561 at [17]-[25].
[18]Footnotes omitted. Emphasis added.
[19]Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405 at 407.
[20]Phipps Pastoral v Somerset Regional Council [2016] QPEC 38 at [14].
[21]Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 at [11].
[22]Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561 at [27]-[29].
[23]Scanlon Property Group Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 405 at 407H.
[24]Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [74]
[25]Affidavit of Mr Connellan, at [10].
[26]Cf Steendyk v Brisbane City Council [2016] QPEC 47 at [113]; Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No 2) [2014] QPELR 561 [29].
[27]Relying upon the evidence of Mr Nguyen, town planner, in his letter of opinion dated 13 September 2016 (affidavit of Mr Nguyen, filed 14 September 2016, at pp 33-34 of the exhibit).
[28]Relying upon the evidence of Mr Douglas, traffic engineer, in his report dated 22 November 2016, at [41] (annexed to the affidavit of Mr Douglas, filed 9 December 2016).
[29]Council’s oral submissions at T 1-31.
[30]Mr Douglas’ report, at [30]-[33].
[31]Mr Douglas’ report, at [34]-[44].
[32]Seabridge Pty Ltd & Anor v Council of the Shire of Beaudesert & Anor [2001] QPELR 191 at [18]; Harris v Scenic Rim Regional Council [2014] QPELR 324 at [244].
[33]Affidavit of Mr Nguyen, at p 37 of the exhibits.
[34]See Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [108].
[35]See the affidavits of Mr Osborne, filed 11 and 18 November 2016, which exhibit email correspondence received from 8 local residents.
[36]Mr Osborne’s first affidavit, at p 1.
[37]Mr Osborne’s first affidavit, at p 2.
[38]Mr Osborne’s first affidavit, at p 5.
[39]Mr Osborne’s first affidavit, at p 6.
[40]Mr Osborne’s first affidavit, at p 15.
[41]Mr Osborne’s first affidavit, at pp 9-10.
[42]Mr Osborne’s second affidavit, at p 1.
[43]Mr Douglas’ report, at p 7.
[44]T 1-24.
[45]See the affidavit of Mr Connellan, exhibit MRC-01.
[46]See, for example, exhibit MRC-01, the submission from Livy James (p 8); from Lynda Kempnich (p 11); from Melissa and Sergio Regano (p 12); Robert and Patricia Tare (p 17); Myfanwy Davies and Robbie Prosser (p 19). Other submitters, who included increased traffic congestion, and safety as issues (but not expressly referring to the 12 car parking spaces) were Julie Spreadborough (p 13); Sandy Hunter (p 21); and Darren Crichton (p 22).
[47]Exhibit MRC-01 at p 26. In Mr James’ original submission, dated 14 September 2014 (pp 1-2) there is no mention of car parking or traffic issues.
[48]Cf Heilbronn & Partners Pty Ltd v Gold Coast City Council [2005] QPELR 386 at [21] and [22].
[49]It did not appear that there was any relevant notice of the kind referred to in s 374(1)(e).
[50]Exhibit MRC-01 to Mr Connellan’s affidavit, at pp 1-2.
[51]See paragraph [31] above.
[52]See paragraphs [29] and [30] above.
[53]Exhibit MRC-01 at pp 6, 15 and 24.
[54]See also the Council’s letter of 30 November 2016 (exhibit 1).
[55]Affidavit of Mr Nguyen, at pp 36-37 of the exhibits.
[56]Exhibit KLD-02 to the affidavit of Ms Davidson, filed on 9 December 2016, at pp 17-18.
[57]As I understand it, the (current) TAPS policy requires a minimum of 1.3 spaces per 3 or above bedroom dwelling, apart from visitor parking. The former requirement, under the “Residential Design – Low Density, Character and Low-medium Density Code” under City Plan 2000 was for 1.25 spaces for per larger (ie 2 or more bedroom) dwelling, plus .25 for visitors (so 1.5 per dwelling), or 1 resident’s space plus .25 for visitors if located close to public transport (P16, table 1, p 171).
[58]Contained in the Residential Design – Low Density, Character and Low-medium Density Code.
[59]This might be said to be reflected in the other examples, referred to in the evidence, of multiple dwelling developments, which have the car parking behind a gate at the front of the complex: see, for example, exhibit KLD-02 to Ms Davidson’s second affidavit, at pp 48, 49, 50.