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Peach v Brisbane City Council[2019] QPEC 41

Peach v Brisbane City Council[2019] QPEC 41

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Peach v Brisbane City Council & Anor [2019] QPEC 41

PARTIES:

NEIL WARREN PEACH

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

And

WHARF INVESTMENT CORPORATION PTY LTD (ACN 169 279 681)

(Co-respondent)

FILE NO:

1851/2018

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

21 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12, 13 and 15 February 2019 and further written submissions delivered on 17 May 2019 and 14 June 2019

JUDGE:

Williamson QC DCJ

ORDER:

Orders in accordance with paragraphs [312] and [313] of these reasons for judgment.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where submitter appeal against approval – where approval for a mixed use high-rise development – where development does not comply with planning scheme in force at the time the development application was properly made – where latter amendments made to planning scheme – whether planning controls in force at the time the application was made have been overtaken by events – whether development of an excessive bulk and scale – whether development of an appropriate design – whether development is inconsistent with character – whether development will have unacceptable impacts on adjoining residential development – weight to be given to amended planning controls – whether the application should be approved in the exercise of the planning discretion.

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14B

Planning Act 2016 (Qld), ss. 45, 60 and 229

Planning Regulation 2017 (Qld), s 31

Planning & Environment Court Act 2016 (Qld), s 45

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16

Beck v Council of the Shire of Atherton & Anor [1991] QPLR 56

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102

Cowen & Anor v Brisbane City Council & Anor [2015] QPELR 1001

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132

Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153

Ko v Brisbane City Council & Anor [2018] QPELR 1130

Plafaire Projects Australia Pty Ltd v Council of the Shire of Maroochy & Anor [1991] QPLR 87

SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24

Smout v Brisbane City Council [2019] QPEC 10

COUNSEL:

Mr A Skoien and Mr H Knowlman for the appellant

Mr J Ware for the respondent

Mr J Horton QC and Mr M Batty for the co-respondent

SOLICITORS:

Thynne + Macartney for the appellant

City Legal for the respondent

MinterEllison for the co-respondent

Index

Introduction4

The land and surrounding locality6

The proposed development8

The statutory assessment and decision making framework10

The extent of the issues and the appellant’s written submissions15

Has version 8 of City Plan 2014 been overtaken by events?17

Does the development comply with version 13 of City Plan 2014?25

(a) Excessive height 26

(b) Excessive bulk and scale 29

(c) Insufficient setbacks 46

(d) Tower and podium form 47

(e) Subtropical architecture 52

(f) Existing and planned character 53

(g) Adverse amenity impacts 54

(h) Role and function 55

(i) Landscaping 57

Exercise of the planning discretion57

Conclusion59

Introduction

  1. [1]
    The co-respondent, Wharf Investment Corporation Pty Ltd (Wharf), wishes to redevelop land situated at 152 Wharf Street, Spring Hill (the land) with a 27 storey high-rise office tower. To facilitate the redevelopment, an impact assessable development application was made to Council in January 2018. In the application material, it was accepted the redevelopment did not comply with the planning scheme in force, namely version 8 of City Plan 2014.  The redevelopment was designed to respond to a shift in Council’s planning for the land, and Spring Hill[1].
  1. [2]
    The shift in planning was foreshadowed by publicly available documents promulgated as early as October 2014. Those documents took various forms over time. In January 2018, the shift was embodied in draft planning scheme amendments, which had been adopted by Council on 31 July 2017. The amendments did not take effect until 14 September 2018.
  1. [3]
    At the time the development application was assessed and decided by Council’s delegate, it was inevitable the planning strategy for the land and immediate locality, which had been in place since 1982[2], was changing direction. The outdated strategy was embodied in the Petrie Terrace and Spring Hill neighbourhood plan (PTSHNP), which formed part of version 8 of City Plan 2014. The planning scheme amendments adopted by Council included a new neighbourhood plan, known as the Spring Hill neighbourhood plan (SHNP). Even in draft form, the SHNP encouraged a material increase in the height, bulk, scale and form of future development in Spring Hill, particularly in the area where the land is located.  By way of example, the acceptable outcome for building height on the land was 10 storeys under the PTSHNP. This was increased to 30 storeys under the SHNP.
  1. [4]
    In April 2018, Council’s delegate approved Wharf’s development application, subject to conditions. The decision was based on a detailed assessment of the proposed redevelopment against version 8 of City Plan 2014 and the planning scheme amendments that had been adopted, but not yet taken effect. The assessment, and subsequent decision, proceeded on the footing the application did not comply with version 8 of City Plan 2014. Determinative weight was afforded to the planning scheme amendments referred to in paragraph [3]. The amendments were treated as favouring approval of the development.
  1. [5]
    This is a submitter appeal by Mr Peach against the delegate’s approval. The appeal was commenced on 18 May 2018 under the Planning Act 2016 (PA).
  1. [6]
    Mr Peach contends the development application should be refused for the reasons identified in a document titled ‘Revised agreed list of issues in dispute[3].  The document alleges the application should be refused because: (1) it does not comply with, and is in conflict with, City Plan 2014; and (2) there are no grounds, or relevant matters, that justify the development being approved in the face of the alleged non-compliances/conflicts with City Plan 2014.
  1. [7]
    Mr Peach has alleged the development does not comply with, and conflicts with two versions of City Plan 2014, namely version 8 and version 13. As I have said, version 8 was in effect when the application was properly made. Version 13 was in effect at the date of the hearing, and includes the planning scheme amendments referred to in paragraph [3]. Mr Peach contends that an assessment of the application against versions 8 and 13 of City Plan 2014 yield the same result, manifesting fundamental conflicts and non-compliances. This position assumes version 13 involves ‘limited changes in planning’ in respect of ‘form, scale and intensity of development in this part of Brisbane[4] and, as a consequence, does not support approval of the application.
  1. [8]
    As this is a submitter appeal, it is for Wharf to establish the appeal should be dismissed[5]. To discharge the onus, Wharf advanced a case founded upon four propositions, namely: (1) whilst the development does not comply with particular aspects of version 8 of City Plan 2014[6], the planning scheme has been overtaken by events, namely the formal planning scheme amendments embodied in version 13; (2) the fate of the application should be determined having regard to version 13 of the planning scheme; (3) the application complies with version 13 of the planning scheme; and (4) there are no matters of town planning practice, or principle, that warrant refusal of the application.  Alternatively, Wharf contends there is a basis in town planning practice and/or principle to approve the application in the face of any non-compliance with version 8 and/or 13 of City Plan 2014. 
  1. [9]
    The position adopted by Wharf raises the following questions for determination:
  1. (a)
    Has version 8 of the planning scheme been overtaken by events?
  1. (b)
    Does the application comply with version 13 of the planning scheme?
  1. (c)
    Is there a basis in town planning practice, or principle, to approve Wharf’s development application in the face of non-compliance with version 8 and/or version 13 of the planning scheme?
  1. [10]
    I will deal with the questions in subparagraph (a) and (b) as separate and distinct topics. The question in subparagraph (c) will be dealt with as part of the exercise of the town planning discretion.
  1. [11]
    Before turning to deal with each of the above questions, it is necessary to set out some background with respect to the land and surrounding locality. I will also deal with matters relating to the form of the proposed development, and the applicable statutory assessment and decision making framework.

The land and surrounding locality

  1. [12]
    The land is a prominent corner site with an area of 1,981m2. It is semi-circular in shape, with the arc presenting to three principal frontages, namely Turbot Street (to the south[7]), Wharf Street (to the east) and Astor Terrace (to the north). The diameter of the semicircle is located on the western side of the land. This is a common boundary with the only adjoining neighbour, which is developed with a high-rise residential tower known as Quattro on Astor. The land slopes from Astor Terrace to Turbot Street. A major constraint for any redevelopment of the land is a subterranean easement for a railway tunnel. The easement is located at the southern end of the land in proximity to the corner of Turbot Street and Wharf Street.
  1. [13]
    At present, the land is vacant. Historically it has been improved with, inter alia, a 5 storey commercial building. This building was demolished in recent times to make way for redevelopment. At one point in time, that redevelopment may have taken the form of a high-rise residential tower. On 15 May 2018, Council granted an approval for the land, which authorises a 30 storey residential building, comprising a podium (or base) with a 25 storey residential tower above. Centre activities were approved at ground level. Access is provided via a small lane, known as Cousins Lane. Whilst the approval has taken effect, there is no evidence to suggest it has been acted upon.
  1. [14]
    The intersection of Wharf Street and Turbot Street is a notable feature of the local area. It is a wide and busy intersection. The frontage of the land at this intersection has been altered in recent years by the closure of a turning lane. This lane closure resulted in the widening of the verge, which is now landscaped.
  1. [15]
    The adjoining land is a narrow rectangular site with an area of 1,114 m2. Together, the adjoining land and the land form an irregular shaped island surrounded on all sides by road reserve. Within that island, a uniform boundary line is presented to Astor Terrace in the north. The same cannot be said for Turbot Street to the south. The southern corner of the land extends further south than the adjoining land. This has the consequence that the land has an additional, but small frontage along the diameter of the semicircle to Cousins Lane. This Lane is orientated, for all intents and purposes, in an east-west direction terminating in the southern corner of the land. It also intersects with Henry Street. This street is orientated in a north-south direction and intersects with Astor Terrace in the north. Henry Street forms the western boundary of the island comprising the land and its immediate neighbour.
  1. [16]
    Quattro on Astor is a 14 storey high-rise multi-unit dwelling. The development was approved in July 2005 under the now superseded Brisbane City Plan 2000. The built form has two identifiable components; a podium and a tower.
  1. [17]
    The podium has three levels, two of which are for car parking and accessed via Cousins Lane. It is built to boundary on three sides, namely the eastern, southern and western boundaries. The podium does not present, or seek to create, an ‘active frontage’ to any of these boundaries. This can be contrasted with the Astor Street frontage to the north where the base of the building is set back from the boundary.
  1. [18]
    A cafe is located on the Astor Street frontage of the development at ground level between the property boundary, and base of the building. It sits beneath an awning, which obscures the view of the tower above.
  1. [19]
    The tower is set back from the edges of the podium below. It is a narrow rectangular structure with four units per floor. This is a product of the shape of the land, which is itself narrow and rectangular. Each unit has a generous balcony that is orientated towards either Turbot Street or Astor Terrace.
  1. [20]
    The eastern side of Quattro on Astor has been designed and constructed in anticipation of the land being redeveloped. The podium is built to boundary with no discernible openings. The tower is designed such that it presents only high level slit windows facing the land[8]. Condition 16 of Council’s approval requires the development to be constructed, and maintained, to include ‘Fixed, external privacy screens or fixed obscure glazing to all side windows at a sill height less than 1.5 metres above floor level on the east elevation of the building[9].
  1. [21]
    The character of local area, of which the land forms part, was helpfully described by the visual amenity experts. They described the character as follows[10]:

In summary, the subject land (and the local area generally) are located at an interface of city centre and city fringe, as well as an area where low-intensity uses (churches and open space) meet high-intensity commercial, hotel and residential towers, street front activation and busy intersections, and where older low-rise built forms are being progressively replaced by newer high rise developments.”

  1. [22]
    I accept this description of the character of the land and surrounding locality. It accords with the photographic evidence, which reflects the area is one in transition, where older built form is being progressively replaced by newer high-rise development. The approval granted by Council for the land in May 2018, being for a ‘newer high rise development’, is consistent with that transition. The same can also be said for Quattro on Astor.
  1. [23]
    The built form character of the local area is fairly described as mixed. In the immediate locality, there are a variety of land uses and diversity of built form[11]. I accept Mr Chenoweth’s evidence that the built form character of the immediate locality expresses little consistency or coherency in terms of age, height, bulk, scale, form and streetscape presentation[12]. There is no consistent ‘podium and tower’ typology. Mr Chenoweth’s opinion was consistent with the photographic evidence contained in the visual amenity joint report. This evidence confirms that, while traditional parts of Spring Hill remain, parts of it have been developed over the last few decades to include higher density residential and commercial development.  The development on the adjoining land to the west, and the Novotel hotel site further to the west again, are examples where this part of Spring Hill is transitioning to newer, high-rise development.
  1. [24]
    Beyond the immediate vicinity of the land, the local area is characterised by an intense mix of commercial, retail and residential uses. To the south and west of the land, intensive high-rise built form is visually dominant, particularly development that is located closer to the core of the city centre. There are a number of prominent buildings in the locality including the Sofitel hotel above Central Station, and the circular Suncorp building between Turbot Street and Ann Street.
  1. [25]
    The visual amenity experts agreed there was a distinction to be drawn, in character terms, between the ‘immediate vicinity’ and the ‘local area’. At paragraph 21 of their joint report they said:

…the immediate vicinity of the site is less intense than other parts of the local area owing to the confluence of roads and wide landscaped road verge around the site (and the width of Turbot St…at this point); the open space of Cathedral Square…; and the lower intensity of the block accommodating St Andrew’s Lutheran Church and bus lay-by area…” 

  1. [26]
    I accept this point of agreement. The character of the immediate vicinity of the land is less intense than other parts of the local area. To the south of the land, across Turbot Street, there are two churches, namely St Andrews Lutheran Church (a modern brick building) and All Saints Anglican Church (an historic stone building). To the south-east of the land, across Turbot Street and Wharf Street, are the gardens of Cathedral Square and St John’s Cathedral. These features contribute to the mixed character of the ‘local area’ and ‘immediate vicinity’.

The proposed development

  1. [27]
    The proposed redevelopment is a 27 storey high-rise commercial office tower with centre activities located at ground level. The components that make up the building can be grouped as follows: (1) one basement level; (2) two split ground levels (due to the slope of the land); (3) three podium levels of car parking; (4) twenty levels of office space, each having a floor area in excess of 1,400m2; (5) a rooftop garden and recreation area; and (6) roof plant and lift overrun.  The town planning witnesses agreed[13] the development has a gross floor area in excess of 29,000m2. Vehicle access is to be obtained from Astor Terrace.
  1. [28]
    The tower is uniform in shape, save at the lower levels of the building, and at roof level. The floor plates are consistent with the semicircular shape of the land and described by Wharf’s architect, Mr Robinson, as a ‘pin wheel plan form’. The façade of the building is a tinted double glazed façade addressing Turbot Street, Wharf Street and Astor Terrace.
  1. [29]
    The design includes a number of features to break up the bulk of the building, and to provide visual interest. The features include horizontal and vertical sun shading fins, inset balconies and planter boxes. In addition, the glazed façade has been articulated through a series of short flat faces. These flat faces have been faceted to follow the curved boundary of the land. The façade will appear pleated, rather than as a continuous vertical wall of glass.
  1. [30]
    The proposed development turns its back to the adjoining land to the west. It does this by presenting a solid wall to the boundary from the ground level up to level 5. For that part of the building above level 5, it presents a solid wall with small openings to the boundary. The solid wall represents the location of the building core where services and amenities are located.
  1. [31]
    The northern and southern ends of the building core wall are glazed and have been splayed in an easterly direction to provide an increased setback to the adjoining development. The splayed edges of the tower increase the setback from a distance of 2.77m to 3.54m. This splay is to maintain, as far as is practicable, views from the balconies of Quattro on Astor. Vertical sun shading elements[14] have also been included on the splayed walls to break up building bulk, and to provide visual interest.
  1. [32]
    The design of the development is not a traditional ‘tower and podium’ where the former is recessed back from the edge of the latter to create two distinct building elements. Whilst the design has no traditional podium element[15], it was Mr Robinson’s opinion that the design has a ‘subtle’ tower and podium distinction.  In the architectural joint report he said[16]:

Despite the tower having reduced setbacks the design of the tower still presents a podium-tower distinction – albeit subtle. In generalised terms, there is a variation in form and articulation between the tapering single glazed podium glazing and its planter boxes; and the vertical tinted doubled glazed office floors with their inset balconies, pin wheel plan form and horizontal and vertical sun shading fins.

  1. [33]
    The subtle distinction between the tower and base of the building is achieved by a tapered element, which was referred to in the evidence as a glass ‘skirt’. It is an element which flares outwards from the building line to a point where it creates an overhang for pedestrian comfort at street level. This element of the design was described by Mr Robinson in the following terms[17]:

…the podium form is composed of two defined bands that circumnavigate the West, North and Eastern elevations of the building. The lower band is delineated by the base of the façade’s tapered glass skirt, which provides a pedestrian overhang for comfort and which, as it wraps around onto the Astor Terrace frontage is seen to align with and respectfully tie into the podium height of the Quattro on Astor Apartments…Below this podium reference line lies the elements providing amenity for the pedestrian realm i.e. the glass awning, landscaped public plaza, streetscape works, planter boxes and public realm art…The upper band of the podium is delineated by the completion of the tapered glass skirt along with its horizontal slots and planter boxes…

Together this upper band and lower band combine with the tower to form what could be considered as an ‘integrated podium’. At the same time, the podium remains a clearly readable element distinguishable from the tower and its pin wheel form…”

  1. [34]
    Mr Robinson’s evidence is made good having regard to the architectural plans, read together with the photomontages prepared for the development. I accept his evidence.
  1. [35]
    Further in this context, I accept Mr Chenoweth’s evidence. His opinion was consistent with Mr Robinson’s, and pointed to three elements of the design that work in combination to distinguish the lower and upper levels of the development. This was said to achieve the subtle visual effect of a podium, or building base.
  1. [36]
    The particular design elements to which Mr Chenoweth referred are depicted in an architectural elevation described as ‘Detail street elevation (Turbot & Wharf)’. That elevation vividly depicts[18]: (1) the flared skirt awning above street level; (2) the angled column supports providing framing at the ground level pedestrian spaces; and (3) the parking level planter boxes.
  1. [37]
    The proposed development was described by Mr Robinson as a catalyst for redevelopment, and an exemplary development that will serve as a benchmark for future office development in Spring Hill[19]. I accept his evidence. The photomontages and plans illustrate the development will be of a high architectural standard. This is unsurprising given the development was subject to an extensive collaborative design process[20]. That process has yielded a design which will, as Mr Robinson said, ‘positively contribute to a highly visible central city corner location[21].

The statutory assessment and decision making framework

  1. [38]
    The development application before the Court is impact assessable. It is common ground the statutory assessment and decision making framework for the application is prescribed by the PA and PECA. I have traversed this legislative framework in two recent decisions, namely Smout v Brisbane City Council [2019] QPEC 9[22] (Smout) and Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPEC 16[23] (Ashvan). I have approached the exercise of the town planning discretion in this appeal consistent with these decisions, in particular paragraphs [51] and [54] of Smout. At paragraph [51] of Smout I said:

The planning discretion conferred under the PA to decide an impact assessable application is broad. It is to be exercised subject to three requirements: (1) it must be based on the assessment carried out under s.45 of the PA; (2) the decision making function must be performed in a way that is consistent with s.5(1) of the PA, namely the assessment and decision making function must be performed in a way that advances the purpose of the Act; and (3) the discretion is subject to any implied limitation arising from the purpose, scope and subject matter of the PA. The exercise of the discretion will inevitably involve a balancing exercise. The balance that is struck in any given case is no longer mandated by the existence of ‘conflict’ with a planning scheme, and the absence of ‘sufficient grounds’…”

  1. [39]
    At paragraph [54] of Smout I said:

As I have already said, the planning discretion to be exercised does not mandate that the application must be refused because a non-compliance with an assessment benchmark, namely a planning scheme, has been identified. Given the size, and complexity of modern performance based planning schemes, not every non-compliance, in my view, will warrant refusal. Each non-compliance should be examined having regard to: (1) the verbiage of the planning scheme; and (2) proper town planning practice, and principle. The verbiage of the planning scheme is to be examined to ascertain the planning purpose of, and degree of importance attached to compliance with, a particular planning principle. The extent to which a flexible approach to the exercise of the discretion will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.

  1. [40]
    Central to the decisions in Smout and Ashvan is the proposition that the town planning discretion to be exercised in relation to an impact assessable application is more flexible than its statutory predecessor[24].  That the discretion is flexible, and different to its statutory processor is consistent with the recent decision in Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132 at [60], which deals with this point in the context of the planning discretion conferred under the Local Government Act 1936. Like the PA, this discretion was not constrained by a ‘conflict’ and ‘grounds’ test.
  1. [41]
    Ashvan and Smout were published after submissions were completed for this appeal. As a consequence, I invited the parties to make submissions with respect to that part of Ashvan dealing with the statutory assessment and decision making framework. The submissions filed in response to that invitation did not suggest Ashvan was wrongly decided.
  1. [42]
    I later invited the parties to make further written submissions with respect to ss 45(6), (7) and (8) of the PA, which were the subject of recent amendment. The provisions are relevant to the assessment of the application. The amendments were made by the Economic Development & Other Legislation Amendment Act 2019. Council and Wharf submitted the legislative amendments did not alter any of the submissions made on their behalf. Mr Peach elected to make no submissions about the legislative amendments.
  1. [43]
    Whilst there was a large body of common ground about the applicable assessment and decision making framework, there were two submissions made on behalf of Mr Peach that warrant particular attention. Both submissions, if accepted and acted upon, had the potential to lead the Court into error.
  1. [44]
    The first submission concerns the weight to be given to ‘relevant matters’. The following submission was made on behalf of Mr Peach:

Whilst the Appellant accepts that the wording of section 45(5)(b) of the PA gives the Court an unfettered discretion to consider “relevant matters”, it does submit that, if it is accepted that, as set out in the Explanatory Notes, the prescribed matters are always to carry “substantial weight’, perhaps less room is left for “relevant matters” to weigh heavily in the assessment process.

  1. [45]
    I reject this submission.
  1. [46]
    It is implicit in the above submission that the Court is invited to treat the assessment and decision making process as if it has an underlying capacity, which, by reference to the Explanatory Notes for the Planning Bill 2015, is ‘always’ substantially consumed by ‘prescribed matters’. It is said this leaves ‘less room for relevant matters’. The plain and ordinary meaning of ss 45(5)(b) and 60(3) of the PA do not support this submission. 
  1. [47]
    Sections 45(5)(b) and 60(3) are broadly expressed. Neither provision purports to predetermine, or limit, the weight a relevant matter/s may be given in the assessment of a development application or in the exercise of the planning discretion. The weight to be given to a prescribed matter, or a relevant matter, is for the assessment manager (or this Court on appeal) to determine on an application by application basis. The exercise is to be guided by, inter alia, s.5(1) of the PA, and town planning practice and principle.
  1. [48]
    Further, the submission assumes it is legitimate to have regard to the following passage of the Explanatory Notes for the Planning Bill 2015, with two relevant parts emphasised:

Assessment against, or having regard to other relevant matters is not obligatory. Neither are they intended to substitute for the prescribed matters. Assessment against and having regard to the prescribed matters is always required. Furthermore, given that the prescribed matters are matters of public record included in statutory instruments that have been the subject of extensive community consultation, the prescribed matters are always expected to carry substantial weight in any assessment.

  1. [49]
    It was submitted on behalf of Mr Peach that ‘resort’ to the above Explanatory Notes was justified because the PA gives limited guidance as to the weight that may be given to relevant matters mentioned in s 45(5)(b) of the PA. Whilst it is correct to say the provision provides no express guidance as to the weight to be given to relevant matters, I reject this, in turn, justifies having regard to the Explanatory Notes for the purposes of filling the gap.
  1. [50]
    It is orthodox to refer to extrinsic material to aid in the proper interpretation of a provision of an Act. It will be appropriate to do so where any one of the circumstances arising under s 14B(1) of the Acts Interpretation Act 1954 is engaged. For example, where a statutory provision is ambiguous or unclear, or to confirm its plain and ordinary meaning. Mr Peach does not invite the Court to consider the Explanatory Notes in this context.
  1. [51]
    Mr Peach does not contend that s 14B(1) is engaged having regard to s 45(5) of the PA. Rather, the Court is invited to consider the Explanatory Notes for the purpose of ‘understanding’ the weight that ought be attributed to prescribed matters in contrast to relevant matters under s 45(5) of the PA. This goes beyond a point of interpretation. It was an attempt to use extrinsic material to suggest how a broadly expressed discretion is expected to be exercised. No authority was cited in support of the contention that extrinsic material may be utilised for this purpose.
  1. [52]
    In any event, the fact the Explanatory Notes suggest a prescribed matter is ‘always’ expected to carry substantial weight in an assessment is of no assistance. The reason for this is a simple one. The statement may represent the view of the author, but it is not reflected in the legislation that is to be construed, and applied, by the assessment manager (or this Court on appeal). Neither ss 45 nor 60 of the PA expressly, or as a consequence of context, require prescribed matters to be given significant weight in all circumstances. Nor do the provisions suggest relevant matters will attract less weight than prescribed matters. Significant amendments would need to be made to these provisions, and surrounding context, to give effect to such a requirement.
  1. [53]
    It has not been established that it is appropriate to depart from the plain and ordinary meaning of ss 45 and 60 of the PA for the purposes of determining the weight to be given to prescribed, or relevant matters in the circumstances of this case, or at all.
  1. [54]
    The second submission I wish to deal with relates to the operation of ss 45(7) and (8) of the PA.
  1. [55]
    These provisions of the PA, in simple terms, require an assessment manager to assess an application against the applicable planning documents in effect at the time the application was properly made, but permit weight to be given to any new, or amended, planning documents. In this appeal, given Wharf’s reliance upon the amendments to City Plan 2014, these provisions have work to do. In particular, there is a genuine issue as to what weight, if any, should be given to, inter alia, the SHNP.
  1. [56]
    In paragraph 3.30 of the amended further submissions filed on behalf of Mr Peach, it was submitted:

The Appellant notes the recent decision of the Court of Appeal in Klinkert v Brisbane City Council [2019] QCA 40 where the Court of Appeal found that there was no basis for using an entitlement to ‘give weight’ to amendments to a planning scheme (see s.45(7) of the PA) to displace or modify the assessment against the planning scheme in force when the development application was lodged (see s.45(6) of the PA). This applies to both code and impact assessment and lends considerable significance to the non-compliance with Version 8 in this case.

  1. [57]
    At paragraph 4.2 of the same written submissions, it was contended the decision in Klinkert v Brisbane City Council [2019] QCA 40 (Klinkert) identified limitations in the consideration, and use, of changes to planning schemes after lodgement of a development application. The precise limitation/s referred to in the submission were unclear.
  1. [58]
    In my view, the decision in Klinkert has limited application to this appeal.
  1. [59]
    I accept the submission that Klinkert stands for the following proposition: there is no basis for using the entitlement to ‘give weight’ to amendments to a planning scheme to displace or modify the assessment against the planning scheme in force when the development application was lodged. This is clear enough from the plain and ordinary meaning of ss 45(7) and (8) of the PA.  Further, I accept this proposition applies to the application of these provisions in this appeal.
  1. [60]
    Accordingly, I have approached Wharf’s application on the basis that an assessment against version 8 of City Plan 2014 must be carried out. This requirement is not displaced because version 13 of City Plan 2014 has taken effect. The weight to be given to each of those assessments in the exercise of the planning discretion is, however, a different matter.
  1. [61]
    A central issue to be determined in this appeal concerns the weight to be given to the outcome of the assessment of the application against version 8 and 13 of City Plan 2014 in the exercise of the discretion under s 60(3) of the PA. The issue to be determined in Klinkert was different. It was a code assessable application where an important issue involved the interplay between s 60(2) with ss 45(6) and (7)[25] of the PA. Section 60(2) mandates approval of a code assessable application where compliance is achieved with all applicable assessment benchmarks. This provision does not apply to an impact assessable application. The relevant decision making power for an impact assessable application is conferred by s 60(3) of the PA, which is expressed in different terms to s 60(2). This is a material point of distinction between this appeal and Klinkert.
  1. [62]
    Whilst it is not clear from Mr Peach’s submissions what, if any, limitation is to be read into ss 45(7) or (8) by applying Klinkert, I do not accept that any such limitation should be read as if it equally applies to an impact assessable development application under the PA. This is not only because of the differences between ss 60(2) and (3) of the PA. It is also a consequence of s 45(5)(b) of the PA.
  1. [63]
    In my view, s 45(8) of the PA is not the only provision that permits the SHNP and other planning scheme amendments to be considered in the exercise of the planning discretion under s 60(3) of the PA. They are also relevant in this appeal by operation of s 45(5)(b) of the PA, which permits an assessment manager (and this Court on appeal) to have regard to a ‘relevant matter’.  
  1. [64]
    As I observed in Ashvan, s 45(5)(b) captures an expansive range of considerations, and includes matters for, and against, approval[26]. That the expansive range of considerations includes the SHNP and other planning scheme amendments is clear enough from the note following s 45(5)(b). The note gives examples of relevant matters, and includes ‘the current relevance of the assessment benchmarks in the light of changed circumstances’. The current relevance of version 8 of the planning scheme is squarely in issue in this appeal. The SHNP and other amendments to City Plan 2014 are directly relevant to Wharf’s contention there has been a material change in planning circumstances. As relevant matters, they may be given weight in the assessment of the application.
  1. [65]
    Klinkert does not prescribe any limitation that is applicable to s 45(5)(b) of the PA. The provision was not considered in that decision because it did not apply to the code assessable application before the Court. Section 45(5)(b) of the PA applies only to impact assessable applications.

The extent of the issues and the appellant’s written submissions

  1. [66]
    Before dealing with the disputed issues to be determined, I wish to make some observations about the extent of the issues raised on behalf of the appellant to warrant refusal of the application, and the written submissions relied upon to advance those issues.
  1. [67]
    The issues relied upon to warrant refusal of the application are articulated in Exhibit 8A, which is described as a ‘Revised agreed list of issues’. Save for collecting alleged planning scheme non-compliances into one of a number of topics, the document does not reliably identify the issues to be determined.
  1. [68]
    Exhibit 8A is deficient in three material respects: (1) contrary to recent statements of this Court, it contains an imposing list of alleged non-compliances with City Plan 2014[27], which are cast in a way that suggests the vast majority warrant refusal of the application in their own right; (2) despite the submissions made on behalf of Mr Peach pointing to the differences between ss.45(7) and (8) of the PA, the document invites the Court to conflate the assessment of non-compliances with versions 8 and 13 of City Plan 2014, rather than examine the latter version as a matter of weight; and (3) the document invites the Court to ask and answer the wrong question. The document invites the Court to exercise the discretion as if it were a SPA appeal, that is, to consider whether an approval can be justified in circumstances where there is ‘conflict’ and an absence of ‘grounds’.  The third matter could have been rectified. I invited further submissions from the parties about my decision in Ashvan, which deals with this very issue at paragraphs [36] to [38] and [86]. Despite extensively addressing this decision in further submissions, this difficulty was not confronted by Mr Peach. Nor was leave sought to rely upon a further revised list of issues.
  1. [69]
    Further to point (1) above, Exhibit 8A alleges ‘conflict’ with 30 provisions of version 8 of City Plan 2014.  It alleges ‘conflict’ with 30 provisions of version 13. For both versions of the planning scheme, 16 of the alleged ‘conflicts’ were identical, and were directed at the Centre or mixed use code. Contrary to the submissions made on behalf of Mr Peach, a number of these alleged ‘conflicts’ did not warrant refusal in their own right and had, in some, but not all respects, the hallmarks of a scatter gun approach to the nomination of issues.
  1. [70]
    In my view, the primary focus in the appeal is the finest grain level of planning for the land, and locality. In version 8, this comprises the Mixed use zone code and the PTSHNP. In version 13, this comprises the Principal centre zone code and the SHNP. This is not to say the Centre or mixed use code is irrelevant. The simple point is that the issues relied upon in that code, in isolation, did little to advance the case one way or the other. Despite this, the conflicts alleged with the Centre or mixed use code were pressed by Mr Peach with the same vigour as the conflicts alleged with the PTSHNP, Mixed use zone code, Principal centre zone code and the SHNP.
  1. [71]
    I accept there will be cases where the nature of the development proposed may result in an imposing number of non-compliances with a planning scheme. Where a party elects to nominate such a list of non-compliances, it must accept the consequence that attaches to that election. By nominating and advancing an imposing list of non-compliances, a party will be expected to provide commensurate assistance to the Court in relation to each alleged non-compliance, particularly where the planning provisions comprise compound propositions. The assistance will include detailed written submissions.
  1. [72]
    To assist the Court, written submissions are ordinarily expected to: (1) identify each of the planning scheme provisions in issue; (2) make submissions, where required, as to the proper interpretation of each provision in issue, particularly where a provision contains compound propositions; (3) identify the evidence relied upon to establish compliance, or non-compliance with each provision in issue; and (4) provide some analysis of the evidence, and where relevant, identify why the evidence relied upon should be preferred to other contrary evidence.
  1. [73]
    Points (2), (3) and (4) above will not be discharged by a party asserting compliance or non-compliance with a planning scheme, and seeking to establish this by merely repeating the words of the planning provision relied upon. An assertion of this kind, absent any reference to, or analysis of the evidence, is of little assistance. It leaves the Court with the unenviable task of analysing all of the evidence to determine what is relied upon to establish compliance or non-compliance with an assessment benchmark. It also leaves the Court to determine, for itself, why a party contends particular evidence should be accepted in preference to contrary evidence. This, in my view, is unsatisfactory.
  1. [74]
    Here, not only was an imposing list of non-compliances alleged with two versions of City Plan 2014, the submissions advanced in support provided little assistance as to the proper interpretation of many provisions of City Plan 2014. Further, the submissions offered little by way of assistance as to the evidence relied upon to establish the alleged non-compliances. The assistance provided fell short of what I said is expected in paragraph [72].
  1. [75]
    The written submissions prepared on behalf of Mr Peach comprised an outline of submissions and a schedule described as ‘Attachment B’.  It was submitted that ‘all disputed planning issues…were canvassed’ in the attachment[28], with specific submissions made in the outline about key broad categories of issues.
  1. [76]
    Attachment B[29] is a document that identifies the planning scheme provisions that are in issue, and submits why ‘conflict’ has been established. It seeks to make good the alleged ‘conflicts’ by repeating those parts of each planning provision in issue. 
  1. [77]
    The attachment, and the accompanying submissions, were wholly inadequate given the number of alleged non-compliances. The attachment is repetitive, no doubt as a consequence of a ‘cut and paste’ word processing exercise. No evidence is cited in the document in support of any asserted conflict. It provides no analysis of the evidence. This was not remedied by the outline of submissions. Like the attachment, the outline asserts conflict with various provisions of City Plan 2014. Save for five footnotes[30], the assertions did not refer to the evidence relied upon in relation to the key broad categories of issues.  This document, like the attachment, does not analyse the evidence.
  1. [78]
    The failure to address or analyse the evidence in a meaningful way was unsatisfactory given the number of alleged non-compliances with two versions of City Plan 2014. The assessment of compliance with the planning documents was not made any easier by the substantial body of evidence before the Court. The evidence included 318 pages of joint expert reports, 87 pages of further statements of evidence and 3 days of transcript.
  1. [79]
    The number of planning scheme provisions relied upon by Mr Peach to warrant refusal was extensive. That, as a factor in its own right, has the potential to protract litigation in this Court, making it more time consuming than is necessary. In isolation, this is disappointing, but is often overlooked. Here, it was not an isolated concern. It was a difficulty that was exacerbated by the nature of the written submissions filed on Mr Peach’s behalf. The combination of an imposing list of planning scheme provisions, coupled with inadequate submissions, did little to assist the Court in the timely disposition of this appeal. Conduct of litigation in this Court should not follow this, or a similar model. It impedes the efficient use of the Court’s finite resources. Further, it does little to engender confidence that the implied undertaking given by a party to the Court under s 10(2) of PECA has been complied with.
  1. [80]
    I now turn to deal with the three questions identified in paragraph [9] above.

Has version 8 of City Plan 2014 been overtaken by events?

  1. [81]
    This question is answered in the affirmative for the following reasons.
  1. [82]
    The statutory assessment and decision making framework mandates that Wharf’s application is to be assessed against version 8 of City Plan 2014[31]. As was conceded by Wharf[32], this assessment discloses two non-compliances, namely by reason of: (1) the height of the development; and (2) the ‘non-traditional’ design of the podium.  This concession, whilst sensibly made, does not represent the full extent of non-compliance with version 8 of City Plan 2014. 
  1. [83]
    The PTSHNP was, until September 2018, the most detailed and locally focussed planning for the land, and surrounding locality. It is, in this case, complemented by the Mixed use zone code. These planning documents, working in combination, provide no support for the height, bulk, scale and resulting form[33] of the proposed development[34]. Further, they provide no support for the proposed building-to-building relationship with Quattro on Astor – that relationship cannot be characterised as a ‘sensitive transition’ in the context of the PTSHNP.  These matters give rise to a number of non-compliances with version 8 of City Plan 2014. They principally arise with overall outcome (8)(d), and performance outcomes PO1 and PO17 of the PTSHNP. Non-compliance also arises with overall outcomes (5)(b) and (5)(h) of the Mixed use zone code. Consequential non-compliances arise with the Centre or mixed use code because the development is not consistent with that anticipated in the ‘local area’.
  1. [84]
    The nature of the non-compliances with version 8 of City Plan 2014 are significant. Taken in isolation from version 13 of City Plan 2014, the non-compliances represent a sound, if not compelling, reason to refuse the application.
  1. [85]
    Wharf, however, submits the non-compliances should not be determinative of this appeal because version 8 of the planning scheme has been overtaken by events. It relies upon the long-established principle that a planning appeal court may depart from the intent expressed in a planning scheme where a local government has itself departed from that intent, or where it has been overtaken by events[35].
  1. [86]
    It has been said that cases engaging the above principle are expected to be rare[36]. This is one of those rare cases. The planning strategy in force at the time Wharf’s application was properly made has been overtaken by events. It no longer has relevance, in a planning sense, for this particular part of Spring Hill. This proposition is, in my view, made good, having regard to the amendments made to City Plan 2014, which involve a change to the zoning of the land, coupled with the introduction of the SHNP. It is necessary to deal with each of these amendments in turn.
  1. [87]
    At the time Wharf’s application was properly made, the land formed part of an area of Spring Hill included in the Mixed use zone. This part of the Mixed use zone had an interface with the Principal centre zone, being the highest order centre in Council’s hierarchy of centres. It is also the highest order centre in the hierarchy of centres for Southeast Queensland. The interface between the centre designations occurred along the length of Turbot Street. City Plan 2014 was amended in September 2018 such that the Principal centre zone ‘jumped’ Turbot Street to encompass part of Spring Hill, inclusive of the land, that was once included in the Mixed use zone.
  1. [88]
    The change in zoning brings with it important contextual changes that inform the assessment of the application before the Court. There are three material contextual changes, all of which inform the assessment of the acceptability of the proposed development in terms of its height, bulk, scale and relationship with Quattro on Astor.
  1. [89]
    First, the Principal centre zone code paints a different forward planning picture to that emerging from the Mixed use zone code. As the name suggests, the purpose of the Mixed use zone is to provide for a variety of uses and activities. In contrast, the purpose of the Principal centre zone is to provide for a large variety of uses and activities to, inter alia, ‘form the core of an urban area[37], namely Brisbane. Spring Hill has a particular role to play in this stated purpose, which it did not formally have prior to September 2018. This is recognised in overall outcome (4)(b) of the Principal centre zone code, which states:

Development provides for a diverse and intensive mix of land uses in …Spring Hill…that support and provide opportunities for the expansion of the core function of the inner city and play a vital role in the growth and economy of the city.

  1. [90]
    Second, the land is now included in the same zone as the Central Business District of Brisbane (CBD), where existing and anticipated development includes high-rise office towers of substantial height, bulk and scale. The substantial nature of development anticipated and encouraged in the zone includes that identified by, inter alia, overall outcome (4)(a) of the Principal centre zone code, which states:

Development provides for the greatest concentration and intensity of activities and land uses in the planning scheme area in Brisbane’s inner city that support its role as the heart of the State’s capital and South East Queensland’s principal activity centre.” 

  1. [91]
    The land is included in the City Centre zone precinct of the Principal centre zone. The overall outcomes in the zone code particular to this precinct complement overall outcome (4)(a) above. One such overall outcome is (6)(b), which reinforces that substantial development is anticipated in, inter alia, the northern portion of the precinct where the land is located. The character of development encouraged in the precinct is ‘at high densities and contains a mix of diverse and commercially focused land uses that support the core function of the inner city’. Further, the highest employment densities are encouraged in this precinct, particularly in areas within walking distance of public transport facilities. The land is located within a comfortable walking distance to Central Station.
  1. [92]
    Third, the change in zoning brings with it a change in the planning controls regulating building height, bulk, scale and form. This is particularly so for commercial development that shares an interface with residential or sensitive uses.
  1. [93]
    The Mixed use zone code provides that the height, bulk, scale and form of development is to be, inter alia, tailored to its specific location’ and ‘the nature of the surrounding neighbourhood[38]. Further, it is envisaged that the form and intensity of development in the zone ‘transitions sensitively to surrounding residential areas[39] and is ‘sensitively designed and operated to avoid or mitigate any potential adverse impact on an adjoining use[40].
  1. [94]
    The Principal centre zone code takes a different approach to the interface between commercial development and sensitive uses. Whilst development is to be ‘tailored to its specific location’, the zone code does not require development to sensitively transition to surrounding residential uses. Nor does the zone code require development to be sensitively designed and operated to mitigate or avoid adverse impacts on adjoining uses.  This difference is unsurprising once it is appreciated the planning scheme encourages development that optimises the airspace in the City Centre[41], and expressly discourages residential development that ‘compromise(s) the primary function of the Principal centre zone as a commercial activity centre[42].
  1. [95]
    The change to Council’s planning does not end with the zoning provisions. Council also adopted the SHNP. The differences between the PTSHNP and SHNP are of significance and demonstrate the planning strategy embodied in the PTSHNP has been overtaken.
  1. [96]
    City Plan 2014 includes a number of neighbourhood plans. They are planning documents addressing matters at the local or district level, and may provide more detailed planning for the zones[43]. As I have already said, the PTSHNP was in force at the time the application was properly made.  All of the land included in the Mixed use zone in Spring Hill was subject to this neighbourhood plan[44].
  1. [97]
    For the purposes of the PTSHNP, the land was included in the High-rise commercial precinct and the High-rise commercial 1 sub-precinct. The latter is one of four related sub-precincts, which were identified as bands of building intensity stepping out, and down, from the city centre. The bands were intended to allow for a gradation of intensity, height and uses, with the highest and most intense development located closest to the city centre[45]. The sub-precinct was one of the locations in the neighbourhood plan area where higher density residential and non-residential development was anticipated and encouraged. This was because of its close proximity to the city centre, Central station, bus routes, parking facilities and accessibility to major traffic arteries[46].
  1. [98]
    The encouragement offered by the planning scheme for higher density uses in the High-rise commercial precinct of the PTSHNP is accompanied by particular planning controls with respect to building form. Overall outcome (8)(d), which applies to the High-rise commercial precinct states:

The environment for the first 2 or 3 storeys is essentially of a commercial character in the form of a podium extended to the boundaries, except where front setbacks are required. Tower construction is intended above the podium, providing open space at the upper levels, and where residential uses are proposed, providing opportunities for outdoor living areas on roof decks. The location and shape of towers is to be carefully designed to minimise impacts of loss of light, air and outlook to buildings in the vicinity.” (emphasis added)

  1. [99]
    The PTSHNP includes Table 7.2.16.1.3.A, which contains performance outcomes and acceptable outcomes for the neighbourhood plan code. Section 7.1(6)(f) and (e) of City Plan 2014 provide, respectively, that: (1) the acceptable outcomes in a neighbourhood plan code achieve the performance outcomes of the code; and (2) the performance outcomes achieve the overall outcomes of the neighbourhood plan code. A number of the performance outcomes in the PTSHNP code are relevant to building height, scale and form considerations.
  1. [100]
    Performance outcome PO1 of the PTSHNP code, and its accompanying acceptable outcome are in the following form[47]:

General – number of storeys and building height

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 anticipated density and assumed infrastructure demand;
  1. (b)
    aligned to community expectations about the number of storeys to be built;
  1. (c)
    proportionate to and commensurate with the utility of the site area and frontage width;
  1. (d)
    designed to avoid significant and undue adverse amenity impact to adjoining development;
  1. (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.

AO1

Development complies with the number of storeys and building height in Table 7.2.16.1.3.B.

  1. [101]
    Acceptable outcome AO1 above refers to a table prescribing ‘Maximum building height’. It prescribes 10 storeys, and a podium height of 12 metres for the land. The proposed development substantially exceeds 10 storeys. A performance based solution is therefore proposed. The performance based solution does not comply with PO1 above because the development:
  1. (a)
    is not of a ‘height’ and ‘scale’ intended in the High-rise commercial precinct;
  1. (b)
    does not align with the community’s expectation as to the number of storeys to be built; and
  1. (c)
    is not a traditional tower and podium form, which is the intended built form outcome in the High-rise commercial precinct.
  1. [102]
    As a consequence of the above, the proposed development cannot be said to comply with PO1, which requires development to ‘improve(s) the amenity of the neighbourhood plan area’.
  1. [103]
    Related issues of building size and bulk arise for consideration under, inter alia, Performance outcome PO17 of the PTSHNP code. This provision, and the accompanying acceptable outcome state:

If in a commercial precinct – site requirements

PO17

Development ensures that building size and bulk are consistent with the density and nature of the neighbourhood plan area.

AO17.1

Development that has a gross floor area that complies with the following:

 

… 350% of the site area

 

  1. [104]
    An application of acceptable outcome AO17.1 to the land equates to a development gross floor area in the order of 6,900m2. The town planning witnesses agreed the proposed development has a gross floor area in excess of 29,000m2, which far exceeds that envisaged by AO17. Again, a performance based solution is therefore proposed.
  1. [105]
    The proposed development, as a performance based solution, does not comply with PO17. The development is located in a High-rise commercial precinct, but the planning documents do not anticipate, let alone encourage development of the height, size and bulk proposed. It far exceeds what is anticipated, and is, therefore, inconsistent with the intended density and nature of the PTSHNP area.
  1. [106]
    Version 13 of City Plan 2014 includes the SHNP. This is a new neighbourhood plan for Spring Hill and embodies a shift in planning. The document positively supports the expansion of the core function of the inner city centre into a limited part of Spring Hill. That area has been earmarked in the SHNP as the ‘City Centre expansion precinct’. The land is included in this precinct.
  1. [107]
    Land included in the City Centre expansion precinct is intended to accommodate the highest densities and most diverse range of uses. This does not, however, mean it is intended the new development may replicate the scale of development in the city centre. The scale of the uses in the precinct are intended to be subordinate to the CBD. The scale of development that will be subordinate to the CBD includes development in the City centre expansion precinct that is 30 storeys in height.
  1. [108]
    One point of difference between the PTSHNP and the SHNP is the absence in the latter of a requirement for development to include a traditional tower and podium form. The SHNP, unlike its predecessor, does not include a precinct specific overall outcome that promotes a formal tower and podium design in the City Centre expansion precinct. Rather, the SHNP speaks of a ‘street building’ and ‘slender towers’.  The former appears in a performance outcome of the SHNP code. The latter appears in an overall outcome for the neighbourhood plan area.  For reasons later given, they are not necessarily limited to a podium and tower design[48]. This change, in my view, represents a softening of Council’s position. It no longer requires development to be of a particular design typology (tower and podium).  The softening provides flexibility in the SHNP that was not provided in the PTSHNP.
  1. [109]
    A significant shift in Council’s planning manifests itself in the application of a particular provision of the SHNP code. In this regard, it will be recalled from paragraphs [100] to [102] that the proposed development does not comply with performance outcome PO1 and acceptable outcome AO1 of the PTSHNP code.  The performance outcome is expressed in the same terms as PO1 in the SHNP code, but a change has been made to the accompanying acceptable outcome, AO1. The acceptable outcome in the SHNP code states that ‘Development complies with the number of storeys in Table 7.2.19.5.3.C-Maximum building height and maximum tower site cover’. The number of storeys stated in that table for the City Centre expansion precinct is 30, where development is proposed on a site of 1,800m2 or greater. The proposed development complies with this acceptable outcome.
  1. [110]
    Compliance with AO1 of the SHNP code means, by virtue of 7.1(6)(f) of City Plan 2014, compliance with PO1 of the same code is also achieved. The proposed development, for the purposes of Council’s most recent statement of planning intent for Spring Hill, is therefore to be treated as meeting each of the elements that make up PO1 of the SHNP code. That is, the development is treated as being:
  1. (a)
    of a height, scale and form that achieves the intended outcome for the City Centre expansion precinct;
  1. (b)
    of a height, scale and form that improves the amenity of the neighbourhood plan area;
  1. (c)
    of a height, scale and form that contributes to a cohesive streetscape and built form character;
  1. (d)
    consistent with the anticipated density and assumed infrastructure demand;
  1. (e)
    aligned with community expectations about the number of storeys to be built;
  1. (f)
    proportionate and commensurate with the utility of the site area and frontage width;
  1. (g)
    designed to avoid significant and undue adverse amenity impacts to adjoining development; and
  1. (h)
    sited to enable existing and future buildings to be well separated from each other, and to avoid affecting the potential development of an adjoining site.
  1. [111]
    Compliance with PO1 an AO1 of the SHNP code is an indicator of the extent to which the planning for this part of Spring Hill has changed and now anticipates the development of the kind proposed. The extent of change is such that the development transitions, in the context of PO1, from a non-compliant to a compliant development.
  1. [112]
    A significant point of controversy between the parties relates to the nature and extent of the changes to Council’s planning. Having regard to paragraphs [87] to [111], the shift in Council’s planning for the purposes of this case is significant. The SHNP, coupled with the new zoning of the land, paints a different forward planning picture to that reflected in the PTSHNP and Mixed use zone. This has the consequence that the context in which the acceptability of the proposed development (in terms of its height, bulk, scale, form and siting) is to be examined is materially different. A clear demonstration of the extent of the change emerges from the assessment of the proposal against PO1 and AO1 of the SHNP code.
  1. [113]
    Wharf submits that Mr Peach’s case failed to give proper recognition, and sought to downplay the significance of the changes, to the Council’s planning for this part of Brisbane[49]. I accept this submission. It is made out having regard to the matters set out above, read in conjunction with: (1) Mr Buckley’s evidence; and (2) the written submissions prepared on behalf of Mr Peach.
  1. [114]
    In the town planning joint report, Mr Buckley expressed the opinion that he did not consider the SHNP heralds a particular change in policy. At paragraph 55 of the joint report, he disagreed with the suggestion that the ‘policy constitutes expansion of the City Centre into the Fortitude Valley and Spring Hill’. This position was developed a little further by Mr Buckley in his oral evidence.
  1. [115]
    In cross examination, it was suggested to Mr Buckley that all of the views expressed by him assume the inclusion of the land in the City Centre expansion precinct of the SHNP is of little moment. In response, he said[50]:

…I don’t agree with what I interpreted as being a suggestion that the CBD is moved into this part of the Spring Hill Petrie Terrace Neighbourhood Plan area. So I don’t – interpret that from opinions expressed by Mr Schomburgk and Mr Mulcahy. I might be unfair to them, but to me you could have called it the Turbot Street precinct and the provisions would speak to themselves in terms of what the outcomes might be, ultimately.

  1. [116]
    I am unable to accept Mr Buckley’s evidence having regard to the clear terms of the SHNP. This planning document includes a precinct described as the ‘City Centre expansion precinct’. As the name suggests, the SHNP promotes an expansion of the city centre into part of Spring Hill. This is reinforced once it is appreciated that the precinct is coincident with the Principal centre zone, being the same zone in which the city centre is included. 
  1. [117]
    Mr Buckley, in my view, did not approach the change in Council’s planning on a sound footing, which undermines the opinions expressed by him. In particular, it undermines the opinions he expressed about the acceptability of the proposed development in the context of version 13 of City Plan 2014.
  1. [118]
    The written outline submitted on behalf of Mr Peach contends the obvious and only real change to planning intent for the locality are the increases to the acceptable building height and site cover[51]. Otherwise, it was contended that version 13 of City Plan 2014 reflects ‘limited changes[52] with respect to form, scale and intensity of development in this part of Brisbane. The submissions were pitched as high as suggesting the relevant provisions in version 13 ‘repeat the planning strategies in Version 8 for the Site and the locality[53] and there is ‘a great deal of consistency between the relevant provisions of Version 8 and Version 13[54]
  1. [119]
    I reject these submissions.
  1. [120]
    The submissions are not supported by an objective reading of version 13 of City Plan 2014. In simple terms, version 13 of the planning scheme includes the land in the highest order centre, not just for Brisbane, but South East Queensland. In this centre, substantially greater building height, bulk, scale and form is anticipated and promoted in contrast to the Mixed use zone. This is only complemented by the SHNP, which includes the land in the City Centre expansion precinct. Like Mr Buckley, the submissions sought to downplay this clear change in planning intent.
  1. [121]
    An important issue to be determined in this appeal is the weight to be attributed to version 13 of City Plan 2014, and any assessment of the development against that planning document. It was submitted on behalf of all parties that version 13 should be given weight. I accept this submission.
  1. [122]
    To ignore the SHNP and the zoning change would be illogical. The changes reflected in version 13 of City Plan 2014 represent Council’s most recent statement of planning intent, which departs from the planning intent expressed in the PTSHNP and the Mixed use zone. The departure is a formal one, which should be given its full force and effect. This is so for three reasons, taken in combination: (1) given the nature and extent of the change to Council’s planning for Spring Hill; (2) given the extensive consultation and adoption process undertaken before implementing the change in planning, which dates back to early 2014[55]; and (3) given the draft of the SHNP was adopted by Council on 31 July 2017, being a date prior to the delegate’s decision to approve Wharf’s application.
  1. [123]
    Logic, and the prevailing circumstances, lead to the inevitable conclusion that version 13 of City Plan 2014 should be the determinative planning document. This is consistent with the town planning evidence, in particular, the evidence of Mr Buckley. He is a senior and experienced town planner. During cross-examination he was asked to express an opinion as to the weight, if any, he would give to version 13 of City Plan 2014, assuming three things: (1) the proposed development did not comply with version 8 of City Plan 2014; (2) the nature and extent of the non-compliance with version 8 was ‘as serious as it gets’; and (3) the proposed development complies with version 13 of City Plan 2014. Whilst Mr Buckley did not accept the third assumption was made out, but he fairly conceded there would be no planning reason left to refuse the application assuming all three assumptions were established[56]. He said “I’d have nowhere to go”.

Does the development comply with version 13 of City Plan 2014?

  1. [124]
    Mr Peach alleges the development does not comply, or conflicts, with three aspects of version 13 of City Plan 2014, namely: (1) the SHNP; (2) the Principal centre zone code; and (3) the Centre and mixed use code. Wharf and Council do not agree.
  1. [125]
    The non-compliances alleged by Mr Peach with version 13 of City Plan 2014 are identified in Exhibit 8A. They are collected by reference to nine (9) topics, which allege the proposed development:
  1. (a)
    is of an excessive height
  1. (b)
    is of an excessive bulk and scale;
  1. (c)
    has insufficient setbacks;
  1. (d)
    is an inappropriate design, in that it is not a tower and podium form;
  1. (e)
    does not deliver high quality, subtropical architecture;
  1. (f)
    is out of character with the existing and planned character of the locality;
  1. (g)
    will result in unacceptable adverse amenity impacts, including impacts on adjoining residential development;
  1. (h)
    will undermine the role and function of the City centre and the CBD; and
  1. (i)
    does not provide appropriate landscaping.
  1. [126]
    I will deal with each of the nine topics in turn.
  1. (a)
    Excessive height
  1. [127]
    Mr Peach contends the development does not comply with version 13 of City Plan 2014 because it is of an ‘excessive height’. This is said to be a symptom of ‘overdevelopment’, rather than a reason for refusal in its own right.
  1. [128]
    I reject this contention. The height of the development is not excessive. It complies with the SHNP code.
  1. [129]
    For the reasons given in paragraphs [109] and [110], the development complies with the acceptable outcome for building height in the SHNP code, which envisages a development of 30 storeys on the land.
  1. [130]
    Further, the contention sits uncomfortably with the approval granted by Council in May 2018. The approval authorises a high-rise residential development, which attaches to the land, and must be taken into account in the assessment of Wharf’s application. It authorises development with a height similar to that proposed. The approved high-rise residential tower is 30 storeys. In comparison, the proposal is 27 storeys. Both the proposed and approved development comply with AO1 of the SHNP code.
  1. [131]
    In support of his position, Mr Peach alleges the height of the development does not comply with three provisions of City Plan 2014.
  1. [132]
    The first provision relied upon is overall outcome (4)(a) of the SHNP. This provision states:

(a)  The City Centre expansion precinct contains a mix of commercial, retail, residential, community and recreational uses, providing a transition in height between the CBD and development in the Boundary Street heart precinct and Spring Hill mixed used precinct.

  1. [133]
    It is submitted the proposed development will not provide a “transition” as required by the above overall outcome. The evidence supporting the submission is that of Mr Peabody and Mr Buckley. With respect to Mr Peabody’s evidence, in his opinion, the proposed development does not offer a suitable height transition within the local context[57]. Mr Buckley expressed a similar view. He readily accepted the height of the proposal was less than that anticipated in the adjoining neighbourhood plan area, but considered it was taller than existing development in the locality, and substantially more bulky. In this way, Mr Buckley considered the proposal did not reflect the transition anticipated by overall outcome (4)(a)[58].
  1. [134]
    Contrary to submissions made on behalf of Mr Peach, the evidence established compliance with overall outcome (4)(a). The provision speaks of uses in the precinct providing a ‘transition in height’ between the CBD and ‘development in the Boundary Street heart precinct and Spring Hill mixed used precinct’. I am satisfied this will be achieved here because the development is of a height (in storeys) that is anticipated in the City Centre expansion precinct and, as a consequence, the development complies with PO1 of the SHNP code.
  1. [135]
    I do not accept Mr Peabody and Mr Buckley’s assessment of the transition anticipated by overall outcome (4)(a). It was not clear that either of their assessments proceeded on the correct footing. That is, it was not clear whether they expressed their opinions cognisant of the proposal’s compliance with AO1 and PO1 of the SHNP code. Further, their respective assessments proceeded on the premise that overall outcome (4)(a) speaks of a building-to-building, or a ‘local area’ transition. The overall outcome does not speak of a height transition in these terms. The transition of which it speaks is specific. It is a height transition that uses in the precinct provide between the CBD and particular precincts in the SHNP. The proposed development will contribute to the City centre precinct achieving this intended height transition.
  1. [136]
    The second provision relied upon is overall outcome (4)(b) of the SHNP, which states:

The Principal centre zone develops as a strong economic centre for Spring Hill, encouraging investment and employment in the area and leveraging off its proximity to the CBD and existing major healthcare and education institutions in the neighbourhood plan area. The Principal centre zone accommodates the highest densities and most diverse range of uses at a scale that is subordinate to the CBD.

  1. [137]
    It was submitted on behalf of Mr Peach that the proposal fails to comply with the above provision because it is not of a scale subordinate to the CBD. Moreover, it was submitted the proposal is of a scale that is expected in the CBD under the City centre neighbourhood plan code.
  1. [138]
    The evidence relied upon in support of this submission is that of Mr Buckley. Having regard to a combination of factors, it was his view the proposed development is not of a scale subordinate to the CBD. He said the proposal was of an intensity contemplated principally in the Tower in Plaza precinct of the City Centre neighbourhood plan area[59]. I was not referred to the provisions of the City Centre neighbourhood plan code relied upon to establish this point.
  1. [139]
    Overall outcome (4)(b) and Mr Buckley’s evidence is directed at the issue of building scale. This issue is not limited to an assessment of building height. The scale of a building is the combination of its height, length and width. With these three integers of scale in mind, the question to be examined is as follows: What scale of development in the SHNP area will be subordinate to the CBD?
  1. [140]
    This is answered by reference to the performance outcomes and acceptable outcomes of the SHNP code, which are intended to achieve the overall outcomes of the code, including overall outcome (4)(b)[60]. The performance outcomes include PO1, which is dealt with above[61]. The development complies with PO1, and its accompanying acceptable outcome. As a consequence, the planning scheme recognises that the development is of ‘a height, scale and form that contributes to a cohesive streetscape and built form character’, and ‘is consistent with the anticipated density’. The proposed development is consistent with other performance outcomes of the SHNP code relevant to the issue of scale. This includes PO3, which is dealt with later in these reasons[62].
  1. [141]
    I am satisfied the development is of a scale that is anticipated by the performance outcomes of the SHNP code. It will, as a consequence, be subordinate to development in the CBD in the manner envisaged by the SHNP code. This is confirmed by the architectural perspectives forming part of the evidence[63]. The perspectives vividly show the proposed development in its context, which includes part of the CBD.
  1. [142]
    In context, the development appears in the perspectives to be subordinate in scale to the CBD. It is also confirmed by a comparison of the development with the provisions of the City Centre neighbourhood plan code. Table 7.2.3.7.3.C of that code informs a number of acceptable outcomes relevant to the height and scale of development anticipated in the CBD. The table anticipates development in the CBD that is substantially larger in scale than that anticipated in the City Centre expansion precinct of the SHNP area[64].
  1. [143]
    The third provision relied upon by Mr Peach is performance outcome PO21 of the Centre or mixed used code, which states, in part:

PO21

Development ensures that the building height is consistent with the centre or mixed use area intent and local and street context considering:

(d)  the height of existing adjoining buildings and proposed heights; …

  1. [144]
    PO21 is of little assistance to Mr Peach’s case.
  1. [145]
    The proposed development complies with the corresponding acceptable outcome, namely AO21. The acceptable outcome requires development to comply with the maximum building height specified in a neighbourhood plan. As I have already said, the proposed development complies with AO1 of the SHNP code, which is directed at building height. Given the structure of City Plan 2014, compliance with AO21 results in compliance with PO21.
  1. [146]
    The height of proposed development, having regard to version 13 of City Plan 2014, is not excessive. It will be in keeping with the height of development anticipated and promoted in the City Centre expansion precinct on sites equal to, or greater than 1,800m2. As a consequence, the height of the building is not a symptom of overdevelopment.

(b) Excessive bulk and scale

  1. [147]
    Mr Peach alleges the proposed development is of an excessive bulk and scale. It is submitted this manifests itself in significant conflict with numerous planning scheme provisions, which can be grouped into one of three categories, namely: (1) holistic provisions; (2) provisions based on specific planning metrics or criteria; and (3) provisions that require the design to incorporate elements to mitigate, or relieve, the impression of bulk and scale.
  1. [148]
    Before dealing with the three categories of planning provisions relied upon by Mr Peach, it is necessary to observe that this aspect of the appeal is to be determined against the background the proposed development complies with Performance outcome PO1 of the SHNP code. This provision is set out at paragraph [100] and informs an assessment of the acceptability of the height, scale and form of the development.
  1. [149]
    As I have already said in paragraphs [109] and [110], compliance with PO1 is significant in the determination of this appeal. In simple terms, it follows from compliance with PO1 of the SHNP code that the height, scale and form of the development is anticipated in this part of Spring Hill. More particularly, by virtue of compliance with PO1, the development is considered by City Plan 2014 to be of a height, scale and form that improves the amenity of the neighbourhood plan area, and contributes to a cohesive streetscape and built form character.
  1. [150]
    The holistic planning provisions relied upon by Mr Peach are those that require the development to be ‘tailored’ to the characteristics of the site and surrounding context. There are four provisions of version 13 of City Plan 2014 that require new development to be tailored in this way.
  1. [151]
    In the SHNP code, overall outcome (3)(f) states:

Development reinforces the diverse architecture and urban form that sets Spring Hill apart from other parts of Brisbane and is responsive to each site’s specific shape, size, topography, context and setting.

  1. [152]
    The above overall outcome is consistent with the tenor of Performance outcome PO2 of the SHNP code, which requires development to be ‘designed to respond to its site context and setting’ and exhibit outstanding architectural merit’.
  1. [153]
    In the Principal centre zone code, overall outcome (4)(e) states:

(e) Development is

(i) tailored to its specific location and to the role of the individual centre and the relevant zone precinct;

(ii) consistent with the location-specific provisions in the relevant neighbourhood plan.

  1. [154]
    The above provision is consistent with overall outcome (5)(a) of the same zone code, which deals with the matter more comprehensively, and states:

(a) Development is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site and the centre including:

(i) the location of existing buildings, specialist uses and public transport interchanges;

(ii) access arrangements;

(iii) the location of and connections to active transport networks;

(iv) the shape, frontage, size, orientation and slope of the site;

(v) local neighbourhood identity, topography and views;

(vi) the mix of surrounding uses;

(vii) the location of surrounding heritage places, parks and environmental features.

  1. [155]
    The four provisions above, taken in combination, require new development to be responsive or tailored to: (1) the characteristics of the site on which it is proposed; (2) the context, location and setting; and (3) the characteristics of the centre and zone precinct in which it is located. It is also contemplated in the Principal centre zone code that new development will be consistent with location specific provisions in a relevant neighbourhood plan, which, in this case, require (inter alia) a design to exhibit outstanding architectural merit.
  1. [156]
    Having regard to the evidence of Mr Robinson I am satisfied the proposed development complies with the each of the matters to which I have referred in paragraph [155]. Before dealing with particular aspects of Mr Robinson’s evidence and version 13 of City Plan 2014, I will identify the reasons why I preferred his evidence to that of Mr Peach’s architect, Mr Peabody, whose contrary opinions were undermined in two respects.
  1. [157]
    First, it was unclear from Mr Peabody’s evidence[65] how his assessment of the relevant ‘context’ and ‘setting’ was informed, if at all, by the high-rise residential development approval granted by Council for the land in May 2018. This approval must be taken into account in the assessment of the application[66]. The approval authorises the making of a material change of use for a development that is of a bulk and scale comparable to the proposed development[67]. Mr Peabody’s evidence indicates he was ‘cognisant’ of this approval, but proceeded on the footing it was not the subject of the appeal.
  1. [158]
    Second, Mr Peabody’s opinion about context and setting assumes, inter alia, that the proposed development fails to comply with any ‘reasonable development limitations’ (including site cover, building height, building form and setbacks) as envisaged by, inter alia, the SHNP code[68]. There are two difficulties with the view expressed by Mr Peabody in this regard, namely: (1) the development limitations to which he refers are predominantly acceptable outcomes rather than performance outcomes; and (2) contrary to his view, the proposed development does comply with the relevant development limitation for building height, as is evidenced by compliance with AO1 and PO1 of the SHNP code. The first of the two difficulties is the by-product of an opinion where a rigid adherence to assessing the acceptability of development against acceptable outcomes has been adopted. This approach is valid to a point, but does not necessarily establish non-compliance with a performance based planning scheme[69]. The second difficulty is more problematic. It means Mr Peabody’s assessment and expression of opinion, whilst no doubt genuinely and sincerely held, proceeds on the wrong footing, being that the height of the development does not comply with version 13 of City Plan 2014.
  1. [159]
    Returning to Mr Robinson’s evidence, he described the relevant contextual features informing his assessment against the planning provisions referred to above. At a high level, it is clear Mr Robinson recognised Spring Hill as having a diversity of architecture and urban form, which varies in age, height, scale and intensity[70]. In this context, he described the land as being ‘unique’ in the sense it has three road frontages and sits at a gateway, or point of transition. I accept this is an accurate characterisation of the land given its shape and location in the road network, being the sinuous junction of a number of major and minor roads. These matters of ‘context’ were expanded upon by Mr Robinson in his further statement of evidence, where he said (and I accept)[71]:

“…this particular portion of Spring Hill...is perceived, and experienced and which is already functioning as an expansion of the city centre. The area around the subject land is on topographical even footing with the city, has level pedestrian access to the CBD and already exhibits a development intensity indicative of a fringe expansion area of the city centre….

The subject site is positioned as a gateway transition site – the entry to Spring Hill from Wharf Street and Turbot Street and the point where the city grid shifts to the Spring Hill road alignment. In serving this transitionary role, the approved office scheme needs to refer to Spring Hill but also to the new city centre building forms which will be…developed around it.

  1. [160]
    In addition to local land use and architectural context, Mr Robinson also examined and identified relevant features of the site, and surrounding development, to which a design response was required. He identified the topography of the land as one such consideration. He also identified the interface with Quattro on Astor as a further consideration requiring an appropriate design response.
  1. [161]
    Having regard to the design of the proposal and the contextual features set out above, it was Mr Robinson’s opinion that the development was tailored to the characteristics of the land and surrounding context. A useful summary of his opinion in this regard appears at paragraphs 17 and 18 of his further statement of evidence, where he said (and I accept):

17. The subject site sits at a point of transition between the city centre and the Spring Hill ‘city centre expansion precinct’. As such I believe that the architecture of the approved scheme should, and does, transition the high-rise office tower typology of the CBD with the existing and future built form of this particular area of Spring Hill. The approved office scheme:

i. continues the Astor Terrace retail streetscape around Wharf Street, with the height of the scheme’s podium skirt and glazed awning referencing the height of the podium and awning on the Quattro on Astor Apartments.

ii. transitions in terms of bulk, form, scale and character with the emerging (80 odd storey) city centre which lies immediately east across Turbot Street.

iii. picks up on the design elements of the former building that occupied the site, and the local prevalence of angled and curved glass facades. The traditional fine grain timber and tin character that is synonymous with Spring Hill is not near the subject site and has no scholarship to be referenced in any future design on the subject site.

iv. The pin wheel plan profile is generated from the half circle shape of the site and draws reference from the sinuous junction of Creek Street as it turns into Wharf Street.

18.  The subject site’s context is one dominated by the late 70 and early 80s office buildings that relate poorly, and even rarely at all with the street. The approved office scheme attempts to provide a benchmark for how development can better integrate with the location through superior design responses. In my view this is achieved by upping the user population, introducing a large open foyer and landscaped public plaza, positively activating the streetscape and firming up the sub-tropical streetscape character.

  1. [162]
    Mr Robinson’s evidence was consistent with that of Mr Chenoweth, the visual amenity expert called on behalf of Wharf. In the visual amenity joint report at paragraph 51, Mr Chenoweth identified five factors that contribute to the bulk and scale of the proposal being acceptable, and in keeping with its location. That is to say, the bulk and scale of the proposal appropriately responds to its context and setting.
  1. [163]
    The five factors cited by Mr Chenoweth comprise relevant context and design responses, evidencing how the development has been tailored to its local context. I do not propose to repeat that evidence, save to say the five factors emphasise the manner in which the design was tailored to: (1) the size and shape of the land; (2) the degree of separation from surrounding development (by reason of road reserves and green space); (3) the nature of adjoining development; and (4) the local context, where the site is prominent and will form a visual marker and transition. I accept Mr Chenoweth’s evidence.
  1. [164]
    The five factors cited by Mr Chenoweth are made good, as a matter of impression, when regard is had to the photographic evidence, photomontages and architectural plans for the proposed development. The same can also be said for the views expressed by Mr Robinson.
  1. [165]
    It was submitted on behalf of Mr Peach that, at best, the design of the proposed development exhibits ‘token recognition’ of the context and setting of the site. To develop the point, the following submissions were made at paragraphs 3.5 and 3.6 of Mr Peach’s outline:

With regard to the notion of design responding to its context, including adjoining development, the Appellant notes the acceptance by this Court in Ko v Brisbane City Council & Anor of the following sorts of matters as indicating an appropriate response:

(a) the height being consistent with the height of surrounding development;

(b) the providing (sic) of large separation distance to buildings of differing heights, so as to achieve an appropriate height transition;

(c) the provision of building step-backs at upper levels when adjoining lower-height buildings;

(d) the minimization of impacts on privacy and overlooking by physical separation, orientation of living spaces and openings, suitable positioning of open space, and appropriate consideration of window size and screening; and

(e) the use of deep planting to provide suitable landscape screening to the built form.”

The Proposed Development exhibits none of these sorts of design responses.

  1. [166]
    The above submission is footnoted to reference paragraph 54 of my decision in Ko v Brisbane City Council [2018] QPELR 1130. That decision, particularly paragraph [54], is not authority for the proposition that an ‘appropriate design response’ will include some, or all of the features to which reference was made in Mr Peach’s submissions. Further, the decision does not support the proposition that the development here exhibits ‘token recognition’ of its context and setting. Reliance upon, and reference to, paragraph [54] of Ko is of no assistance to this case. This is so for three reasons.
  1. [167]
    First, the paragraph of the reasons to which reference is made does not contain a statement of principle. Paragraph [54] merely recites the evidence that was accepted in that case about a particular form of a development, which founded a conclusion that conflict had not been established with City Plan 2014.
  1. [168]
    Second, the case concerned a materially different form of development included in a different zone. The land the subject of the application was included in a residential, rather than centre zoning. In Ko, the application before the Court sought approval for a multiple dwelling in the Low to medium density residential zone. The planning controls for that zone are materially different to those applying in this appeal.
  1. [169]
    Third, Mr Peach’s submissions make no attempt to align the so-called ‘appropriate responses’ to planning controls that are relevant to this case. That exercise would, in any event, be unlikely to bear fruit of any real assistance. For example, there is no part of the SHNP code or Principal centre zone code that requires development to: (1) be consistent with the height of surrounding development[72]; or (2) provide an appropriate height transition from building to building[73].
  1. [170]
    The planning objectives I referred to in paragraph [155] also require consideration to be given to the architectural merit of the proposal, and whether the design has been tailored to the characteristics of the Principal centre.  With respect to the former consideration, Mr Robinson, after a careful and considered examination of the proposed development, said the architectural design will result in an ‘exemplary building’ that will contribute to a highly visible central city corner location[74]. He also expressed the following opinion[75]:

The approved office scheme, which has been designed to feature an activated street interface, relationship with both the Spring Hill and City Centre context and which embodies subtropical design elements will serve as a benchmark for office development in Spring Hill and will act as a catalyst for the implementation of the adopted neighbourhood plan in the local area.

  1. [171]
    An assessment of the architectural merit of a proposal is subjective, and involves matters of impression. It is a matter about which reasonable minds may differ. On balance, I accept Mr Robinson’s evidence on this topic. His evidence is made good when regard is had to the photomontages and architectural plans for the proposed development. The photomontages and plans illustrate an attractive ‘A grade office[76] tower located on a visually prominent site on the edge of the city centre. The design responds to the irregular shape of the land and the unusual number of busy road frontages.
  1. [172]
    I am satisfied the proposal will be an attractive and modern built form suitable for its location. It will serve to reinforce the diverse architecture and urban form that exists (and is promoted) in Spring Hill[77].
  1. [173]
    Mr Skoien correctly pointed out that version 13 of the planning scheme does not designate the land as a ‘landmark site’, or a significant site[78]. This point was intended to draw to the Court’s attention that the site was not designated in a way that would encourage a landmark or gateway development. Whilst this is correct, I did not regard the evidence, which described the site as being located at a gateway, as suggesting the land did enjoy such a designation under City Plan 2014.
  1. [174]
    I regard Mr Robinson’s description of the land and its location as a gateway was a statement of relevant context, which I accept. The absence of any such formal designation is of no consequence. The planning documents do not seek to limit the nature of the architectural response because the land is not designated a landmark or gateway. In my view, there are particular provisions of the planning scheme, which call for a meritorious architectural response even in the absence of a landmark designation.
  1. [175]
    Overall outcome (2)(s) of the Centre or mixed use code, which applies to the development application, promotes development that retains and supports ‘significant corner sites’ and provides character and design elements to ‘strengthen local identify and city distinctiveness’. This general provision is complimented by more specific provisions of the planning scheme that require, inter alia, development to exhibit outstanding architectural merit[79] and deliver ‘high quality, subtropical architecture’. These requirements apply to development in the SHNP area and call for an architectural response. Other provisions of City Plan 2014 require that response to be tailored to both its physical and planning context. The design of the proposal will, in my view, achieve these objectives.
  1. [176]
    The final matter to be considered is whether the development is tailored to the centre and precinct in which it is located. The centre is the Principal centre zone and the City Centre zone precinct. The overall outcomes for the zone code anticipate and promote substantial development in the zone. It is expressly envisaged that the greatest concentration, diversity and intensity of activities for the planning scheme area will occur in the zone.
  1. [177]
    That high density uses are anticipated and promoted in the zone is consistent with the precinct specific provisions of the zone code. In particular, overall outcome (6)(b) is applicable to the land as it is located in the northern portion of the City Centre zone precinct, and states:

(b) Development in the northern and southern portions of the City Centre zone precinct:

(i) is at high densities and contains a mix of diverse and commercially focused land uses that support the core function of the inner city;

(ii) accommodates the highest employment densities in areas within walking distance of the highest order public transport accessibility outside of the inner city.

  1. [178]
    I am satisfied the proposed development has been designed, and tailored, to respond appropriately to the zone and precinct context. This is clear for the reasons given in paragraphs [155] to [164]. Against the background of the matters set out therein, I am comfortably satisfied the proposal for a 27 storey high-rise office tower of the scale proposed on the land will be in keeping with the character of development anticipated in the zone and precinct. The character of the development anticipated is intended to ‘support(s) the core function of the inner city’.
  1. [179]
    For the reasons given above, and contrary to Mr Peach’s case, I am satisfied the proposed development complies with the ‘holistic’ provisions captured by the submission at paragraph 3.2 of the written outline filed on his behalf. 
  1. [180]
    As I said above, Mr Peach also alleges the proposed development does not comply with planning scheme provisions that are based on specific planning metrics or criteria, or require the design to incorporate elements to mitigate or relieve the impression of bulk and scale. Two provisions of the SHNP code are relied upon in support of this position, namely overall outcome (3)(i) and performance outcome PO3 of the SHNP code.
  1. [181]
    Overall outcome (3)(i) of the SHNP was described by Mr Skoien in oral submissions as being fundamental to Mr Peach’s case. This provision states:

Development in the Principal centre zone, District centre zone, Mixed use zone or Community facilities zone provides slender towers that are sited and designed to maintain the openness of street vistas with adequate spacing between buildings to allow for light penetration, air circulation, views and vistas, and privacy, particularly for residential towers.

  1. [182]
    It was accepted on behalf of Mr Peach that impacts on privacy are not an issue in this appeal[80]. This had the result that the alleged non-compliance with overall outcome (3)(i) of the SHNP was limited to the following aspects of the provision: (1) the development cannot be described as a slender tower; (2) the development is not designed to maintain the openness of street vistas; and (3) the development is not designed to provide adequate spacing between buildings to allow light penetration, air circulation, and views and vistas (particularly for Quattro on Astor).
  1. [183]
    I accept, having regard to the architectural perspectives[81], the development will not be perceived as a ‘slender’ tower. This is not of itself as significant as it may first appear. As a matter of practicality, any development of the land that seeks to adopt the building envelope resulting from the application of particular acceptable outcomes in the SHNP code will not present as a slender tower. Acceptable outcomes prescribing development metrics, in combination, can be applied to create a building envelope for the land. The building envelope is a three dimensional shape following the curvature of the land. It is within this envelope that built form is anticipated. The size and placement of the envelope on the land is established by applying the prescribed SHNP code metrics for, inter alia, building height and boundary setbacks.
  1. [184]
    The shape of the resulting building envelope is depicted in elevation form at Figure 3 of the architectural joint report. The resulting shape does not produce a slender tower. Like the proposed development, the building envelope presents a substantial building face to each road frontage.
  1. [185]
    I would add that the approval granted by Council in May 2018 for the high-rise residential tower is also relevant in this context. The architectural perspectives for that approval do not suggest the development will read as a slender tower[82].  Again, this is a product of the shape of the site, and the number of road frontages.
  1. [186]
    The consideration of greater importance, in my view, is why overall outcome (3)(i) of the SHNP requires development in the Principal centre zone to provide slender towers. The provision reveals it is so for two reasons. The first is to maintain the openness of street vistas. The second is to provide adequate spacing between buildings to allow for light penetration, air circulation, views and vistas, and privacy, particularly for residential towers.
  1. [187]
    For the reasons that follow, I am satisfied that the proposed development achieves these underlying reasons despite not being, in a strict sense, a ‘slender tower’.
  1. [188]
    The phrase ‘street vistas’ is not defined in City Plan 2014 and should be given its plain and ordinary meaning.  It is a vista along each street, seen on and from the street. The openness of that vista is a matter of impression, to be informed by visual aids in evidence before the Court.
  1. [189]
    As a matter of impression, the visual aids satisfy me the proposal has been designed to maintain the openness of street vistas[83]. This is established primarily by comparing the architectural perspectives for the development with the photographs at figures 22 and 23 of the visual amenity joint report.
  1. [190]
    The comparison reveals the development has been designed, and sited, to respect its context, and maintain the openness of street vistas. More particularly, the street vistas depicted in the ‘before’ and ‘after’ images remain open and unaffected by the proposed development. This is perhaps unsurprising given the proposed development will, as contemplated by PO1 of the SHNP code, ‘contribute to a cohesive streetscape[84], ‘address and activate the street[85], and ‘contribute to an attractive streetscape[86].
  1. [191]
    The impact of the proposed development on the street vista will, in my view, be comparable to the high-rise residential development approved by Council in May 2018. As a matter of impression, this is confirmed by comparing the architectural perspectives for each development[87]. In both cases, it is difficult to describe the extent to which the openness of the street vista will be impacted. The extent of impact by reference to either development appears to be acceptable in the context of the SHNP.
  1. [192]
    In an amended set of further submissions, it was submitted the proposed development ‘would not contribute to the openness of the street vista in this locality’. It was said that this is a feature which is made even more undesirable by the location of the land at the junction between the CBD and the Spring Hill neighbourhood.  The submission is not one that I accept. Overall outcome (3)(i) does not require development to contribute to the openness of Street vistas. Rather, it requires towers to be sited and designed to maintain the openness of street vistas. The proposal will achieve this planning objective.
  1. [193]
    The third point advanced on behalf of Mr Peach in this context is that inadequate spacing will be achieved between the proposed development and Quattro on Astor. It is said this will unacceptably impact on the extent of light penetration, air circulation, views and vistas for the occupants of Quattro on Astor. In support of this submission, Mr Peach invites the Court to accept the evidence of Mr Peabody, namely his oral evidence, and his contribution to the architectural joint report[88].
  1. [194]
    I do not accept this submission, nor the supporting evidence, for a number of reasons.
  1. [195]
    In the first instance, the submission does not fairly acknowledge the relevance, and force, of important contextual features that inform the assessment of the building-to-building relationship between the proposal and Quattro on Astor. In particular, the submission did not fairly acknowledge the following:
  1. (a)
    as Mr Robinson pointed out, Quattro on Astor was designed and constructed in anticipation of a substantial, and close redevelopment on the land – this is evidenced by the orientation of windows (and views) to Astor Terrace and Turbot Street, with side windows that face the land and are designed as ‘slots’ at high levels to restrict views. Some of the slots have opaque film to obscure views across the land[89];
  1. (b)
    the multiple dwelling approval granted by Council in May 2018 for the land approves a development that, if constructed: (1)  would obliterate views and vistas from Quattro on Astor across the land to Wharf Street, and (2) overshadow Quattro on Astor, thereby impacting on the extent of light penetration on its eastern side;
  1. (c)
    the SHNP and Principal centre zone code anticipate, and encourage, substantial redevelopment of the land that will impact on Quattro on Astor in that views to Wharf Street will be obliterated, it will be overshadowed and air circulation will be reduced; and
  1. (d)
    the proposal is of a height that complies with the SHNP, namely PO1, and has been designed to respond to the interface with Quattro on Astor in that it presents a large blank wall to the common boundary (providing privacy) with chamfered ends to enhance light penetration, air circulation and views from the balconies of Quattro on Astor.
  1. [196]
    Once these contextual features are taken into account, the submission made on behalf of Mr Peach loses its force. The contextual features, taken in combination, suggest that a level of impact is anticipated and designed for, both in Quattro on Astor and in the proposal. The resulting impact that would arise by reason of the building-to-building relationship proposed will, in my view, fall within the range of impacts that ought reasonably be anticipated in the circumstances. The type of impact falling outside of that range is expressed in performance outcome PO1 and PO3 of the SHNP as ‘significant and undue’. I am satisfied that any impact on light penetration, air circulation, views and vistas by the proposal will not be significant and undue either generally, or with respect to Quattro on Astor specifically. Save for impacts on views and vistas, I accept these impacts will be imperceptible[90].
  1. [197]
    Second, the submission relies upon Mr Peabody’s evidence, which I do not accept. A useful starting point in this regard is paragraphs 113 and 114 of the architectural joint report. The latter paragraph is directly attributed to Mr Peabody. Paragraphs 113 and 114 state:

113. Matters relating to amenity are primarily centred on the impact the approved office scheme has with the adjoining existing residential apartment building Quattro on Astor Apartments, and the habitable spaces within.

114. SP is of the opinion that concerns regarding the adverse impact on the amenity of the surrounding context are a consequence of the extent to which the approved office scheme has exceeded or encroached on reasonable development limitations (including site cover, building height, building form and setbacks) as envisaged by the neighbourhood plan, the draft neighbourhood plan and the adopted neighbourhood plan and as addressed throughout this report.

  1. [198]
    I do not accept, as Mr Peabody has done, that it is appropriate to limit the assessment of the adequacy of the spacing between the proposal and Quattro on Astor by reference to so-called ‘reasonable development limitations’. This is a reference to development metrics prescribed by acceptable outcomes in a range of planning documents, including a limitation (in storeys) for building height. This is problematic. For the reasons given in paragraphs [109] and [110], Mr Peabody’s evidence wrongly assumes the ‘reasonable development limitation’ for building height under the SHNP is exceeded. This has the consequence that he has assessed the suitability of the building-to-building relationship on the basis of a misapprehension.
  1. [199]
    I would also add that Mr Peabody’s evidence was heavily reliant upon the extent of departure from the acceptable outcomes stated in the SHNP for setback distances. Whilst metrics of this kind represent a useful starting point, they are not the complete picture for an assessment against a performance based planning scheme such as City Plan 2014. In this case, the assessment required attention to be given to the contextual features set out above. Those features bear heavily on the assessment of the acceptability of the development, which were not given sufficient weight in Mr Peabody’s assessment. Rather, the prescribed metrics, and the extent of departure from them, appeared to be the focal point for his assessment.
  1. [200]
    Third, I prefer the evidence of Mr Robinson in relation to this issue. He acknowledged the development did not comply with the setback distances prescribed in the SHNP code. His assessment did not end there. Quite properly, he took into account the contextual features set out above. In addition, Mr Robinson took into account that a separation distance of 6.64m will be achieved between the two buildings. These features of the evidence, coupled with the absence of any unacceptable impacts on amenity and character, satisfied me that the spacing between the two buildings will be sufficient to demonstrate compliance with overall outcome (3)(i) of the SHNP.
  1. [201]
    Fourth, particular reliance was placed upon the loss of views and vistas across Cathedral Square to found a non-compliance with overall outcome (3)(i). This provision does not require the absolute protection of all existing views or vistas. It requires adequate spacing to allow for views and vistas. This will be achieved. There is spacing between the buildings, and expansive views and vistas from the balconies to Astor Terrace and Turbot Street will be preserved, although, part of the view or vista across Turbot Street and Cathedral Square will be lost.
  1. [202]
    The partial loss of an expansive view or vista in the context of overall outcome (3)(i) is not unacceptable. The provision, unlike PO32, of the City Centre neighbourhood plan does not require particular views (to and across the open space) to be protected.  This is dealt with in more detail below in relation to PO3 of the SHNP code[91].
  1. [203]
    For the reasons set out above, I am satisfied the proposed development, whilst not a slender tower, complies with underlying the planning objectives sought to be achieved by overall outcome (3)(i) of the SHNP.
  1. [204]
    Mr Peach also alleges the proposal does not comply with Performance Outcome PO3 of the SHNP code. He relies upon only part of that provision, namely:

PO3

Development is of a scale and form that contributes to a cohesive streetscape and built form character and:

(a) does not cause significant and undue adverse amenity impacts to adjoining properties, or prejudice their development;

(b) is sited and designed to enable existing and future buildings to be well separated from each other to allow for light penetration, air circulation between buildings, and the preservation of views, vistas and resident privacy;…

  1. [205]
    Contrary to Mr Peach’s submissions, I am satisfied the proposal complies with PO3.
  1. [206]
    The performance outcome requires the scale and form of development to ‘contribute to a cohesive streetscape and built form character’. This is demonstrated, in part, by reference to the level of compliance achieved with PO1 of the SHNP. PO1 requires development to be of a ‘height, scale and form’ that ‘contributes to a cohesive streetscape and built form character’. The proposal complies with PO1. Relevant context does not, in my view, suggest these phrases, as they appear in PO1 and PO3, should be treated as if they have different meanings. I am, in any event, satisfied having regard to the visual aids in evidence that the proposal will contribute to a cohesive streetscape and built form character, be it planned character, or the existing character as described in paragraphs [21] to [26].
  1. [207]
    For the reasons given in paragraphs [110], [193] to [202] and [208] to [217], I am satisfied the proposal will ‘not cause significant and undue adverse amenity impacts to adjoining properties’. Further, I am satisfied the development is ‘sited and designed’ to be well separated from Quattro on Astor. This is so for of two reasons: (1) having regard to the findings in paragraphs [155] to [172], appropriate building separation will be achieved in the way the development has been designed (rather than by way of a physical separation distance) to respond to its setting and local context, which is a legitimate planning response to the requirements of PO3[92]. The design features of particular relevance to the issue of separation were identified by Mr Mulcahy in his oral evidence. The features to which he directed attention are identified in paragraphs [29] to [31]; and (2) the development has been ‘designed’ and ‘sited’ to avoid significant or undue adverse amenity impacts on Quattro on Astor.
  1. [208]
    The requirements of PO3 with respect to the preservation of views and vistas requires particular attention. The visual amenity experts agreed in their joint report that the proposed development has the potential to affect the visual amenity of only one residential building, Quattro on Astor[93]. It was submitted on behalf of Mr Peach that the evidence established the proposed development, if approved and constructed, would result in the loss of an important view or vista from the Turbot Street facing balconies in Quattro on Astor across Cathedral Square to St John’s Cathedral and beyond[94]. In reliance upon a concession made by Mr Chenoweth, it was submitted this was a significant view or vista, the loss of which could be avoided[95].
  1. [209]
    I accept the evidence establishes the proposed development will have an impact on views and vistas for residents occupying units in the Quattro on Astor building overlooking Turbot Street. Figures 48 and 49 of Exhibit 5 (visual amenity joint report) demonstrate most of the view or vista will be unaffected, but the proposed development will restrict an angled view or vista across Cathedral Square towards St John’s Cathedral and beyond.
  1. [210]
    This impact will, as Mr Chenoweth said, be greater than the impact occasioned by the residential development approved by Council in May 2018. Mr Chenoweth described the loss of the view or vista, in this context, as being very significant[96].
  1. [211]
    At face value, the submission made on behalf of Mr Peach as to the loss of views is appealing. The submission however loses its force upon giving closer attention to Mr Chenoweth’s evidence. Whilst he conceded the view from Quattro on Astor would be impacted, and the impact was significant, he also said this impact ought be anticipated in any event. At paragraph 70 of the visual amenity joint report, Mr Chenoweth said[97]:

…However, in AC’s opinion these south-facing residents would probably lose their sideways view (form (sic) their balcony) to St John’s Cathedral if any development on the subject land was constructed to within the allowable tower setback of 6m of the southern boundary.

  1. [212]
    This aspect of Mr Chenoweth’s evidence was not undermined in cross-examination, and I accept it.
  1. [213]
    Further, upon closer examination, it is clear Mr Chenoweth was at pains to qualify his responses in cross-examination about the significance of the view or vista that would be lost. These qualifications were not referred to in the submissions made on behalf of Mr Peach. The following exchange during Mr Chenoweth’s cross-examination reveals the qualification[98]:

…if we can move across St John’s Cathedral, we can see to-immediately to the left of the greenery in the Cathedral Square, more or less in front of St John’s Cathedral, we can then see that red-roofed smaller brown building that’s – sits north of the cathedral?--Yes.

 

And that forms the other side of that view that will be removed as a result of the proposed development compared with the residential approved development?--Yes

 

...it’s, quite obviously, a significant view in itself?--This is part of a – a wider vista. It’s undoubtedly attractive, and you’d – you will lose a proportion of a – a wide panoramic vista, but that’s not the only view that you see. What you see is shown on figure 48, a much wider arc.

…the view of St John’s Cathedral and across Cathedral place – it is a significant view? -- It’s an attractive and – and quite characteristic view of that part of Brisbane. Yes.

 

Yeah. And as a view of something that’s not just building but is of a heritage-listed building across a green open space, you would consider it, from a visual amenity perspective, to be a significant view? -- It’s a significant part of a wide view. Yes.

And again, that is a significant – for that reason, not just St John’s Cathedral, it is a significant part of the wider vista that you get from these apartments in Quattro on Astor?--Yes. Yes, the – the remaining part of the view that will – won’t be lost is the one shown in figure 40. Sorry. Part of it. Yes. Figures 39 and 40 form part of a panorama, so it continues round. So part of what’s shown in figure 40 would be lost but part retained.

…but I…reiterate the fact that they have got the extensive vistas still that were desi-when they designed Quattro, they would still retain those extensive vistas shown in figure 48.

  1. [214]
    The point Mr Chenoweth was making by way of qualification is clear enough. His evidence was to the effect that part of a wider view or vista would be lost if the development was approved and constructed. That is to say an extensive view or vista would be preserved, but not the same view or vista enjoyed by occupants of the Turbot Street facing units in Quattro on Astor.
  1. [215]
    An issue to be determined is whether the loss of part of an expansive view or vista establishes non-compliance with PO3 of the SHNP. I am satisfied the partial loss of a view or vista does not give rise to non-compliance. In this case, the evidence demonstrates compliance for three reasons: (1) the evidence establishes that a wide panorama view or vista will be preserved for the Turbot Street facing units in Quattro on Astor; (2) as Mr Chenoweth’s evidence establishes, the loss of part of that view or vista across Cathedral Square to St John’s Cathedral is an impact that ought be anticipated in any event having regard to the application of prescribed metrics for setbacks in the SHNP[99] code; and (3) there is no specific protection in City Plan 2014 for the view or vista that is to be lost – it has no express priority over other views or vistas under the SHNP.
  1. [216]
    The SHNP provides no specific protection for a view or vista enjoyed, to or from Cathedral Square, or St John’s Cathedral. This is to be contrasted with the City Centre Neighbourhood plan, which applies to land on the southern side of Turbot Street. Performance outcome PO32 of the City Centre neighbourhood plan code states, in part:

Development maintains or improves the visual prominence of St John’s Cathedral by:

(a) protecting views and vistas along Ann Street to the Cathedral;

(b) protecting views to the Cathedral across Cathedral Square from Turbot and Wharf Streets and their intersection;…

  1. [217]
    The absence of a provision such as PO32 is, in my view, a strong indicator that the loss of part of a view or vista in this appeal is not to be considered a matter of planning importance. There will be an impact from the partial loss of an otherwise expansive view or vista, but that impact, understood on context, will not be undue, adverse or significant.
  1. [218]
    The above, regrettably, does not mark the end of the non-compliances alleged by Mr Peach with City Plan 2014 as a consequence of the bulk and scale of the proposed development. Mr Peach alleges the bulk and scale of the development does not comply with overall outcome (2)(g)(i) and Performance outcomes PO20, PO23, PO24, PO25, PO26, PO28 and PO32 of the Centre or mixed use code. The alleged non-compliances are premised on the following factual assertions:
  1. (a)
    the proposed development is not consistent with the intended spatial arrangement as expressed in the zone and neighbourhood plan outcomes[100];
  1. (b)
    the proposed development has a bulk and scale that is not consistent with the intended form and character of the local area, particularly considering the height of the adjoining Quattro building, and the location, setback and separation of the Quattro building[101];
  1. (c)
    the proposed development does not relate to the existing streetscape or reinforce the preferred character and form intent (as a result of its bulk and scale)[102];
  1. (d)
    the proposed development does not provide an appropriate transition to the adjoining lower intensity development at Quattro[103];
  1. (e)
    the proposed development provides no deep planting to the ‘rear boundary’[104];
  1. (f)
    the setbacks for the proposed development do not minimise the impact of the development on the amenity of the Quattro residents[105];
  1. (g)
    the setbacks for the proposed development do not contribute to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character[106];
  1. (h)
    the setbacks for the proposed development do not provide for breezes and sunlight to the neighbouring residential use[107];
  1. (i)
    the proposed development does not ensure the separation of buildings is consistent with the form and character intent for the local area[108];
  1. (j)
    the proposed development is not located to provide residential amenity, including access to natural light, sunlight and breezes[109];
  1. (k)
    the proposed development fails to address and consider (really, in any significant way) the amenity of the adjoining residents at Quattro[110];
  1. (l)
    the building footprint and site cover is not of a form and intensity appropriate for the mixed use location[111];
  1. (m)
    the proposed development provides for no reduction in the bulk and scale by the use of design elements[112];
  1. (n)
    the proposed development does not reflect the local podium form of development[113];
  1. (o)
    the proposed development does not have a human scale for the building base[114]; and
  1. (p)
    the proposed development does not contain any horizontal or vertical variations in its profile[115];
  1. [219]
    For the reasons given in paragraphs [109], [110], [147] to [217] and [240] to [267], I am satisfied Wharf has demonstrated that the underlying factual assertions set out above are not made out and, as a consequence, do not establish non-compliance with the Centre or mixed use code. I would also add that I have reached this conclusion having regard to the following matters.
  1. [220]
    I reject the assertion in subparagraph (a) above. The evidence establishes that the proposed development is a high-rise office tower of a height, bulk and scale that complies with the SHNP code and Principal centre zone code. It is these documents that regulate the spatial arrangement of development in that zone and precinct.
  1. [221]
    With respect to subparagraph (e), the alleged non-compliance with PO24 assumes the development includes no deep planting, and the common boundary with Quattro on Astor is a ‘rear boundary’. Both of these assumptions are wrong. The evidence establishes that the proposed development does include deep planting in the order of 120m2, or 6.06% of the land[116]. The common boundary with Quattro on Astor is not a rear boundary.
  1. [222]
    I am satisfied that PO24 of the Centre or mixed use code does not give rise to a reason to warrant refusal of the application in any event. This is so even if deep planting was required by PO24 along the common boundary with Quattro on Astor. The absence of this deep planting does not give rise to any unacceptable impact on amenity. For the reasons set out above, the boundary setback, separation distance and interface with Quattro on Astor and the subject proposal will be sufficient to achieve the level of amenity reasonably expected in the City Centre expansion precinct of the SHNP.
  1. [223]
    I reject the assertions in subparagraphs (m) and (p). It is wrong to assert the proposed development does not include design elements to reduce the bulk and scale of the development. The design elements intended to reduce bulk and scale were identified by Mr Robinson as[117]: (1) the use of inset balconies; (2) the splayed walls along the common boundary with Quattro on Astor; (3) the vertical and horizontal fin elements proposed for the façade; (4) the incorporation of the skirt to visually break up the tower; (5) the use of the pin wheel plan form; (6) the carpark level slots and planter boxes provided to break up the bulk of the tower; and (7) the setback to the roof terrace level and provision of a roof top garden.
  1. [224]
    Each of the above design elements, in combination, work to mitigate the bulk of a large building, which is anticipated and encouraged on the land by the SHNP and the Principal centre zone code. Whilst Mr Peach may not agree that the design elements are sufficient or adequate, I am satisfied the design[118], for a high-rise office tower in the City centre precinct and Principal centre zone, includes appropriate and effective design measures to reduce the bulk and scale of the proposal.
  1. [225]
    I reject the assertion in subparagraph (n). The point has the potential to mislead as to the true effect of Performance outcome PO32. The relevant part of PO32 states:

Development ensures that building bulk and scale:

(b) is reduced by design elements to provide:

 

(ii) reflection of valued local form elements such as podium or parapet heights in traditional strip shopping centres;…

  1. [226]
    PO32 does not mandate that development is to provide a local podium form. It requires development to reduce bulk and scale by, inter alia, incorporating design elements that reflect a valued local form element.  The evidence establishes that ‘podiums’ are not necessarily a valued local form element. Podium and tower development does not predominate the local area[119]. The existing built form character was described by Mr Chenoweth as varying along Astor Terrace, Turbot Street and Wharf Street with little consistency or coherency[120]. It was also his view that the tall built form of the local area does not reflect a consistent ‘podium plus setback tower’ typology[121]. I accept Mr Chenoweth’s evidence.
  1. [227]
    I reject the assertion in subparagraph (o). The evidence establishes that the ‘skirt’ and subtle podium provides, in a functional way, the demarcation between the upper and lower parts of the proposed tower, thereby creating the human scale at ground level (and for the base of the building).
  1. [228]
    I accept Mr Robinson’s evidence[122] to the effect the skirt provides a reference line. Below this reference line are design elements, which have been included at ground level in the pedestrian realm.  This is intended to create a human scale at the base of the building, which is reinforced by the proposed achieving compliance with PO4 of the SHNP code. This provision is dealt with below in the context of the ‘tower and podium form’ of development.
  1. [229]
    Accordingly, I am satisfied the bulk and scale of the proposed development is appropriate having regard to version 13 of City Plan 2014. In particular, it complies with the most locally focussed and specific planning for the local area, comprising the SHNP and the Principal centre zone code.

(c) Insufficient setbacks

  1. [230]
    It was submitted the proposed development does not comply with version 13 of City Plan 2014 because it has been designed with insufficient setbacks. This allegation is advanced in reliance upon the same planning provisions said to be offended by the bulk and scale of the development. Given my findings above[123], I reject this submission.
  1. [231]
    For the reasons given above, I am satisfied the proposed development has been designed to provide sufficient setbacks, and is well separated. It complies with performance outcomes PO1 and PO3 of the SHNP code and overall outcomes (3)(f) and (3)(i) of the Principal centre zone code. These provisions of version 13 of City Plan 2014 are relevant to the acceptability of the building setbacks and separation distance to adjoining residential development.
  1. [232]
    It is to be noted that much was made by Mr Peach of PO26 of the Centre or mixed use code in relation to the issue of building separation. The provision, and its accompanying acceptable outcome are, in my view, of little assistance in the determination of the appeal.
  1. [233]
    The acceptable outcome applicable to PO26 requires a 24 metre separation distance to be achieved between Quattro on Astor and the proposal from level 9 upwards. As Exhibit 17, and Mr Buckley’s oral evidence confirmed, the strict application of this separation distance is impractical[124], and would result in a built form that is unresponsive to the shape of the land[125].  It was telling that Mr Buckley conceded, albeit reluctantly[126], that a separation distance of 12 metres, if rigidly applied would: (1) have a dramatic effect on the design of development on the land; (2) effectively sterilise a large proportion of the land; and (3) potentially cut across the requirement for development to be responsive to its context.
  1. [234]
    I am satisfied the development complies with the requirements of PO26. At the core of the provision is a requirement for the design, and resulting impacts to be consistent with the form and character intent of the local area, as expressed in the zone code and the SHNP code. This is required by PO26(a). It is achieved here as a consequence of compliance with PO1, PO2 and PO3 of the SHNP code and the Principal centre zone code. The balance of PO26 does not otherwise raise an issue that is not already considered having regard to PO1, PO2 and PO3 of the SHNP code and the Principal centre zone code.
  1. [235]
    Further, I am satisfied for the reasons given above (primarily in paragraphs [218] to [228]) that the proposed development complies with Performance outcomes PO23, PO24 and PO25 of the Centre or mixed use code, which are relevant to the acceptability of the proposed building setbacks and the separation distance to Quattro on Astor.

(d) Tower and podium form

  1. [236]
    A substantial part of Mr Peach’s case is founded on the premise the proposed development is an inappropriate form, because it is not a tower on podium design. It is contended the proposed development has no podium, and is a tower that belongs in the City centre, rather than Spring Hill.
  1. [237]
    This criticism of the proposal is one that finds support in the planning documents that were in force at the date the application was made. The SHNP does not however mandate that new development must comprise a tower and podium in the City Centre expansion precinct. The SHNP introduced a new concept, known as a ‘street building’. This phrase is not defined in City Plan 2014.
  1. [238]
    A ‘Note’ in s.7.2.19.5.1 of the SHNP states:

Note – The ‘street building’ comprises all levels of a building below which a set back tower commences. Refer to Figure c for guidance.

  1. [239]
    There is no overall outcome in the SHNP requiring development in the neighbourhood plan area to include a ‘street building’. The phrase does however appear in Performance outcome PO4 of the SHNP code, which states:

Development in the Principal centre zone…incorporates a street building with a façade treatment that is designed to:

(a) address and activate the street and any adjacent publicly accessible space with a high level of permeability, landscaping, shade and shelter;

(b) contribute to an attractive streetscape;

(c) create a smooth transition from indoors to outdoors;

(d) respond to the subtropical climate by opening up to the elements while providing shade an comfort.

  1. [240]
    Performance outcome PO4 has three applicable acceptable outcomes, one of which refers to Figure c for ‘guidance’. This is the same figure referred to in the ‘Note’ set out above. Figure c, which forms part of the SHNP, depicts a street building which is built to boundary, and a tower above it that is set back from the edge of the podium below.  In simple terms, Figure c illustrates a built form akin to a podium with a tower recessed above.
  1. [241]
    Figure c is not a definition. It provides guidance. If it was intended to provide more than guidance, it would have been a simple matter for the planning authority to make provision for this in the SHNP, akin to the manner in which this is achieved by overall outcome (8)(d) of the PTSHNP. It did not do so.
  1. [242]
    If Figure c is not a definition, but provides guidance, what is a street building? In my view, it is all levels of a building below which a set back tower commences. This includes a podium, but is not limited to such a design. It will be necessary in each case to look at the design to identify that part of the development which constitutes the ‘street building’.
  1. [243]
    In this case, the design of the development is not a traditional ‘tower and podium’. It does however provide for a podium form, but in a subtle way[127]. As I have said above, it is provided by the tapered single glazed podium with a glass ‘skirt’. It is this element, which flares outwards from the building line, to create an overhang for pedestrian shelter and comfort at street level.  Below the skirt, the street edge is defined by the delineation of paving and planter boxes that create an edge to a landscaped public plaza. I accept that this part of the building is to be treated as the ‘street building’ for the purposes of PO4 of the SHNP code. This part of the building sits below the point at which a modest setback is provided to the tower above[128].
  1. [244]
    PO4 requires the façade of a street building to be designed to achieve four objectives.
  1. [245]
    The first objective is to address and activate the street. The proposed plans of the development demonstrate this will be achieved. The ground level is designed such that it will be activated by a ground level plaza that is highly permeable. The area will be landscaped. It will provide shade and shelter for pedestrians.
  1. [246]
    The second objective is to contribute towards an attractive streetscape. Again, this is demonstrated by the proposed plans of development and architectural perspectives, which illustrate an attractive ground level plaza. It will, as is required by Performance outcomes PO1 and PO3 of the SHNP, contribute to a cohesive streetscape.
  1. [247]
    The third objective is to create a smooth transition from indoors to outdoors. This transition will be achieved through the permeable nature of the ground level where the public can freely move from the landscaped plaza into the ground and upper ground retail areas inside the lobby.
  1. [248]
    The fourth objective is to open up to the elements, while providing shade and comfort. This is achieved by the landscaped public plaza which is situated below the skirt, providing shade and comfort.
  1. [249]
    Each of the four matters above were the subject of cross-examination. Whilst reluctant to embrace them, both Mr Peabody[129] and Mr Buckley[130] offered little meaningful resistance to the proposition that each objective was achieved by the design of the façade below the skirt of the building. 
  1. [250]
    Mr Peabody was critical of the proposed development and its subtle podium. He approached the assessment of the proposal on the footing the SHNP code seeks a development outcome that is illustrated in Figure c. Against this background, Mr Peabody expressed the view the development does not reflect a street building. Rather, he said it would be viewed as a continuous tower, designed to the extremities of the land.
  1. [251]
    If it were assumed a street building was defined to be the built form depicted in Figure c of the SHNP, Mr Peabody’s criticisms of the design would have some force. That is not however the position. Figure c, as I have said, is a guide. Compliance with the figure is not mandated. Mr Peabody’s evidence does not give sufficient weight to this point. Further, I consider Mr Peabody’s evidence to be overstated. His evidence does not give sufficient weight to the effect of the skirt, and the subtle podium it creates. This is to be contrasted with Mr Robinson’s evidence. He did not treat Figure c as a design template against which the development must be measured. He also recognised the architectural effect, albeit subtle, of the podium created by the skirt.
  1. [252]
    Mr McGowan was critical of the proposal because of, inter alia, the lack of podium and tower form[131].  This criticism, like Mr Peabody’s evidence, was founded on an assumption that both the PTSHNP and the SHNP require development to incorporate a podium. Whilst this is correct in so far as consideration is given to the PTSHNP, it is an oversimplification of the concept of a ‘street building’ for the purposes of the SHNP. I would also add that Mr McGowan focussed on the acceptable outcomes to PO4 of the SHNP and did not appear to focus on the requirements of the performance criterion itself[132]. This was a necessary exercise. The failure to do so undermines the reliability of his evidence.
  1. [253]
    Given the above matters, I prefer Mr Robinson’s evidence to that of Mr Peabody and Mr McGowan. Further, I am satisfied the proposed development complies with PO4 of the SHNP code, which, contrary to Mr Peach’s submission, is an appropriate form of development in this part of Spring Hill.
  1. [254]
    Mr Peach also alleges the proposed development, given its form, does not comply with overall outcome (3)(f) of the SHNP on the premise that it is an urban form anticipated in the City centre, but not Spring Hill. I reject this submission. Overall outcome (3)(f) does not require the design of the proposal to be a strict tower and podium form. In this context, it requires development to reinforce the diverse architecture and urban form that set Spring Hill apart from other parts of Brisbane.
  1. [255]
    As I have already said, the character of the built form in the locality is diverse[133]. Podium and tower design does not predominate the local area. Indeed, Quattro on Astor as it presents to Astor terrace is not a street building as Mr Peach would contend. The proposed development will serve to reinforce this diversity, which is expressly recognised in overall outcome 3(a) of the SHNP.
  1. [256]
    Mr Peach alleges the form of the proposed development (which is not a traditional tower and podium form) does not comply with three overall outcomes in the Principal centre zone code, namely (4)(e), (5)(c) and 6(c).
  1. [257]
    I have dealt with overall outcome (4)(e) of the zone code above. For the reasons set out at paragraphs [153] and [155] to [164], I am satisfied the development complies with this provision of the Principal centre zone code.
  1. [258]
    Overall outcome 5(c) of the zone code states:

Development provides public spaces and landscaping, including deep planting, that soften the dominance of buildings, provide breathing spaces and encourage outdoor activity and living, integrate with the surrounding area and enable fine grained pedestrian connectivity through the centre.”

  1. [259]
    Mr Peach asserts the proposed development does not comply with the above provision because it does not involve landscaping, including deep planting, to soften the dominance of buildings or to integrate with the surrounding area.
  1. [260]
    The alleged non-compliance proceeds on a misapprehension. As I have already said, the evidence establishes, contrary to Mr Peach’s assertion, the proposed development includes an area of deep planting, in the order of 120m2.  More particularly, the proposed development includes the following landscaping elements: (1) landscaping at the ground level plaza where a public interface with the street is provided[134]; (2) planter boxes located in the façade at the bottom of the skirt[135]; (3) the roof terrace is to be intensively landscaped[136]; and (4) existing street trees, including two large fig trees are to be retained[137].    I am satisfied the proposed development, including the intended landscaping, provides ‘public spaces and landscaping, including deep planting’.
  1. [261]
    The design of the building at its lower levels (below the skirt), including the proposed landscaping and adjacent street trees, will soften the dominance of the building at the pedestrian level. In my view, this is what is envisaged by overall outcome (5)(c). The provision does not require the façade of a high-rise tower to be landscaped such that it is camouflaged from view, or appear as if it were an oversized, undecorated Christmas tree. I would add that, even if overall outcome (5)(c) did require such an outcome, it would be impractical, and not integrate with the character of the area. The existing built form character does not include high-rise towers with façades that have been landscaped to reduce bulk, scale or visual dominance in this way. One need look no further than the façade of Quattro on Astor to confirm this to be the true position.
  1. [262]
    I am, as a consequence of the above matters, satisfied the proposed development will integrate with the landscape character of the surrounding area.
  1. [263]
    Landscaping has a role to play in mitigating a further impact recognised by overall outcome 2(l) of the Centre or mixed use code. This provision requires development to provide high quality landscaping that reduces urban heat island effects. The extent to which the effect can be reduced by a single development, let alone one surrounded by an extensive area of road pavement and hardstand, is constrained. I accept Mr Chenoweth’s evidence that the landscaping proposed, combined with the landscaped street verge and shaded area beneath the skirt will contribute to the minimisation of the heat island effect[138].
  1. [264]
    Overall outcome 6(c) of the Principal centre zone code states:

Development ensures that building and public domain design is appropriate to the context, fits responsibly into the streetscape and riverscape and positively contributes to the overall city skyline and the high architectural quality expected of the City Centre zone precinct.

  1. [265]
    Mr Peach asserts the proposed development does not comply with the above provision because it does not have a design that is appropriate to the context, nor fits responsibly into the streetscape.
  1. [266]
    I reject this assertion. It is contrary to the evidence I have accepted, being that of Mr Robinson and Mr Chenoweth. Further, the assertion sits uncomfortably with the level of compliance demonstrated with the SHNP code and Principal centre zone code. In complying with these planning documents, it has been demonstrated the development is appropriate to its context, will positively contribute to the streetscape and city skyline. The development is, as I have already said, of high architectural merit. It is of a quality not only anticipated, but encouraged in this part of the City centre in Spring Hill.
  1. [267]
    Finally, in the context of the issue of built form, Mr Peach alleges the development does not comply with PO32 of the Centre or mixed use code. For the reasons given in paragraphs [219] and [225] to [228], I reject this assertion.

(e) Subtropical architecture

  1. [268]
    It was contended the application should be refused because the proposed development does not deliver high quality, subtropical architecture, which gives rise to non-compliance with five provisions of City Plan 2014. The five provisions relied upon comprise overall outcome (3)(g) and Performance outcome PO5 of the SHNP code, and overall outcomes (2)(i) and (2)(l) and Performance outcome PO34 of the Centre or mixed use code.
  1. [269]
    In response to this issue, Wharf relied upon the evidence of its architect, Mr Robinson. At paragraphs 120 to 124 of the architectural joint report, Mr Robinson provided his response to the assertion that the proposed design does not exhibit subtropical design elements.
  1. [270]
    It is clear from paragraph 120 of the joint report that Mr Robinson identified a number of design elements that exhibit subtropical design characteristics. The elements comprise: (1) landscaping at podium and ground floor level; (2) landscaping at roof level with a roof overhang and pergolas; and (3) external balconies to levels 18 and 23; (4) fine grain shop fronts to Astor Terrace and Wharf Street; and (5) vertical sunshade blades to minimise sunlight penetration. With these design elements in mind, Mr Robinson expressed the view the development was designed to take advantage of Brisbane’s subtropical climate in a manner that would be expected of a commercial high-rise office tower. Further, it was his view the landscaped spaces, including ground level, were open, green and engaging, with shaded spaces and opportunities to interact with the street. This evidence was not undermined in cross-examination.
  1. [271]
    Mr Peabody, the architect called on behalf of Mr Peach offered little by way of resistance to Mr Robinson’s views as expressed in the joint report. At paragraph 124 of the joint report, Mr Peabody did not disagree with the proposition that the design elements referred to by Mr Robinson exhibited subtropical design characteristics. He also appeared to accept the design was meritorious in the sense it offered opportunities for occupants and users to interact with outdoor spaces. The balance of paragraph 124 briefly raises an issue with landscaping, but defers to ‘other experts’, and suggests there are minimal features of the design addressing Astor Terrace.
  1. [272]
    I note the visual amenity experts expressed their own views about subtropical design elements, and whether compliance had been demonstrated with City Plan 2014 in this respect. Whilst these experts may have views about such matters, it was not established they have appropriate qualifications, or expertise, to express such views, which are architectural design issues. Wharf and Mr Peach each called an architect to give evidence on this topic. It is this evidence that I have focussed upon to determine whether subtropical design issues warrant refusal.
  1. [273]
    Mr McGowan’s evidence was, in any event, unpersuasive. In the visual amenity joint report, he expressed the view the development cannot be seen to comply with the four planning provisions identified above. The expression of this opinion was no more than a series of assertions that repeated, in part, the terms of the relevant planning provisions. The evidence did not clearly disclose the facts or reasoning said to support each assertion. Expert opinion evidence that does no more than state a conclusion, or make a bald assertion about compliance or non-compliance with specific provisions of a performance based planning scheme, does not assist the Court.
  1. [274]
    I accept the evidence of Mr Robinson with respect to the issue of subtropical architecture. He is a senior and experienced architect who gave considered evidence on the topic. His evidence was not undermined in cross-examination. The evidence satisfies me the proposed development will deliver a high quality, subtropical design, being an issue which favours approval rather than refusal.
  1. [275]
    I am also satisfied that Mr Robinson’s evidence establishes compliance with overall outcome (3)(g) of the SHNP, and overall outcomes (2)(i) and (2)(l) and Performance outcome PO34 of the Centre or mixed use code.

(f) Existing and planned character

  1. [276]
    Mr Peach contends the proposed development is inconsistent with the existing, and planned, character of the local area. In support of this contention, he alleges the proposed development does not comply with: (1) overall outcome 3(f) and performance outcome PO3 of the SHNP; (2) overall outcome 6(c) of the Principal centre zone code; and (3) overall outcome 2(i) and performance outcomes PO20, PO23, PO24, PO25, PO26 and PO32 of the Centre or mixed use code.
  1. [277]
    The submissions made in relation to these non-compliances are a ‘cut and paste’ of the same submissions made in relation to issues I have considered above. No further or additional planning issues are raised for consideration.
  1. [278]
    For reasons already given, I am satisfied, contrary to Mr Peach’s submissions, the proposed development complies with each and every one of the provisions of City Plan 2014 relied upon to allege a character impact. The development will be consistent with the existing character of the area, which is in transition (as discussed in paragraphs [21] to [26]). It will also be consistent with the intended character of the area, which promotes high rise development up to 30 storeys that supports the role and function of the Principal centre.

(g) Adverse amenity impacts

  1. [279]
    It is submitted the proposed development will give rise to unacceptable adverse amenity impacts on the adjoining residential development. In support of this contention, it is submitted the proposed development does not comply with: (1) Performance outcome PO3 of the SHNP; and (2) overall outcome 2(q) and Performance outcomes PO24, PO25 and PO26 of the Centre or mixed use code.
  1. [280]
    I have already dealt with each of the above provisions and alleged non-compliances. As I have attempted to make clear at a number of points in these reasons, I am satisfied compliance has been demonstrated. More particularly, I am satisfied the proposed development will not give rise to any adverse amenity impacts not otherwise anticipated by the SHNP and Principal centre zone code.

(h) Role and function

  1. [281]
    Mr Peach contends the proposed development undermines the role and function of the City centre and the CBD. One provision of City Plan 2014 is called in aid, namely performance outcome PO27 of the Centre or mixed use code. This provision states:

Development is of an intensity that supports both the strategic and local role and function of the centre or mixed use area and the development of a vibrant public realm considering the capacity of infrastructure.

  1. [282]
    It is submitted the proposed development does not comply with PO27 because it has a gross floor area that does not comply with prescribed acceptable outcome for PO27. Further, it is submitted the intensity of the proposal does not support the local role and function of the mixed use area because it is of an intensity equivalent to that anticipated in the CBD.
  1. [283]
    This aspect of Mr Peach’s case is not said to warrant refusal of the application. Rather, it is relied upon as a symptom of overdevelopment.
  1. [284]
    As a starting point, the proposed development is not an overdevelopment of the land. It is of a scale and intensity that is anticipated and promoted in the SHNP and Principal centre zone. Development of this scale is intended to support the role and function of the Principal centre.
  1. [285]
    I am satisfied the proposed development complies with PO27 of the Centre or mixed used code. The performance outcome requires development to be of an intensity that supports the strategic and local role and function of the centre in which it is located. The relevant centre here is the Principal centre where the highest intensity of development is anticipated in Council’s local government and planning scheme area. This is confirmed by the assessment of the proposal against the SHNP code, which establishes, inter alia, that the development is of a height, scale and form that achieves the intended outcome for the City Centre expansion precinct.
  1. [286]
    In this precinct of the SHNP area, substantial built form is anticipated and promoted. Given the scale and size of the development promoted in this part of Spring Hill, it is hardly surprising that it may be akin to development in the CBD. The precinct is, after all, called the City Centre expansion precinct, where 30 storey development is envisaged and promoted.
  1. [287]
    Given the above, I am satisfied the proposed development will not undermine the role and function of the city centre.

(i) Landscaping

  1. [288]
    The proposed development has been designed to incorporate landscaping and deep planting at ground level, in planter boxes along the curved façade at the carpark podium levels and at the roof terrace. At ground level, the landscaping is to be provided by way of planter boxes, deep planting and street trees in the road verge. The roof terrace is a landscaped recreation space with planter boxes.
  1. [289]
    Conditions 26 and 27 of the delegate’s decision notice confirm the landscaping and deep planting is to be provided to Council’s satisfaction, and maintained for the life of the development.
  1. [290]
    It was submitted on behalf of Wharf that the proposed development has adequate landscaping and deep planting[139]. This submission was made in reliance upon the evidence of Mr Chenoweth, in particular the views attributed to him at paragraph 79 of the visual amenity joint report[140]. This aspect of the joint report reveals that Mr Chenoweth considered the landscaping and deep planting proposed as ‘adequate and acceptable’ for seven reasons, namely because: (1) existing street trees (including two large Fig trees) will be retained; (2) the below ground easement for the railway, and sight lines associated with the street corner location, constrain the planting of additional large trees; (3) the context of the site borrows greenery (including large trees) from Cathedral Square and the church gardens opposite; (4) intensive landscaping is proposed for the roof garden, which was described in the joint report by Mr Chenoweth as a ‘celebration of subtropical landscape’; (5) recent widening and landscaping of the street corner verge has added to the street front landscaped area and apparent setback; (6) the extent of deep planting proposed is greater than that for the approved residential development, which has no deep planting; and (7) it will provide for more planting than that observed in Quattro on Astor.
  1. [291]
    Whilst I have difficulty in accepting the third reason, and consider the fourth reason has been overstated, overall, I accept Mr Chenoweth’s evidence. The architectural plans and photomontages confirm the landscaping proposed, having particular regard to local context, will be appropriate and contribute positively to the character of this part of Spring Hill.
  1. [292]
    Mr Peach contends the landscaping proposed is inappropriate and does not comply with Performance outcomes PO54 and PO55 of the Centre or mixed use code. Non-compliance is said to arise with PO54 because the design makes no attempt to provide landscaping that will screen, soften and buffer the development. Non-compliance is said to arise with PO55 because the deep planting does not achieve the outcome sought by this provision.
  1. [293]
    These non-compliances are not relied upon by Mr Peach as reasons for refusal in their own right. Rather, it is contended they are symptoms of overdevelopment.
  1. [294]
    Putting to one side the issue of non-compliance with PO54 and PO55 of the Centre or mixed use code, I am satisfied the proposal is not an overdevelopment of the land. As a consequence, the premise that underlies Mr Peach’s contention is not made out. The alleged non-compliances, with PO54 and PO55 of the Centre or mixed use code, even if established, do not alter this position.
  1. [295]
    It is alleged the development does not comply with PO54 because no landscaping has been provided to screen, soften or buffer the development. The difficulty is that the performance outcome does not include the terms screen, soften or buffer. At best, the accompanying acceptable outcome requires development to provide landscaping that ‘screens or buffers driveways, service and loading areas, plant rooms or other utilities’.  I was not referred to any evidence that suggested this was an issue of concern to Mr McGowan.
  1. [296]
    As to PO55, it was submitted the deep planting proposed does not achieve the outcome sought by the provision. The submission does little to inform the reader, what if anything is said to be ‘sought by the provision’. This is made all the more difficult where, as here, I was not directed to any evidence to establish the real nature of the deep planting issue that was of concern to Mr Peach.
  1. [297]
    The visual amenity joint report dealt with the issue of subtropical design and landscaping. In that context, Mr McGowan expressed the view that the proposed development does not effectively integrate landscaping to mitigate building bulk, or to achieve a quality subtropical design. Whilst he accepted the retained and proposed street trees will contribute to a comfortable and attractive street level experience, Mr McGowan did not consider the planting proposed in modest planters and at rooftop level would soften and integrate the built form. The built form was described by Mr McGowan as an extruded glass mass extending across the site.
  1. [298]
    In the visual amenity joint report, Mr McGowan identified those parts of PO54 and 54 he considered were offended by the proposal, but this evidence was in the form of an assertion. It did not explain why the identified aspects of the performance outcomes had not been complied with.
  1. [299]
    At first blush, the criticisms of the design made by Mr McGowan appear to have some superficial merit. The photomontages for the proposal confirm the landscaping will not soften the built form above the ‘skirt’. This issue, however, is of little moment once two matters are appreciated. First, the existing character of the area is not one where there is a predominance, or character element, of towers above podiums softened with landscaping. One need go no further than the adjoining development, Quattro on Astor, to demonstrate this point. Second, neither PO54, nor its accompanying AO require the façade of a tower to be softened with landscaping. Rather, PO54 requires development to achieve nine objectives. This includes providing landscaping that ‘contributes positively to the subtropical character, amenity and microclimate of the site and centre’. Further, the provision requires landscaping to contribute to site amenity, and balance the bulk and scale of the building.
  1. [300]
    The two objectives identified above in PO54 can be achieved, in part, by providing landscaping at the ground, podium and roof tops levels, as is proposed. This is an outcome envisaged by AO54(a).
  1. [301]
    I am satisfied having regard to Mr Chenoweth’s evidence that the landscaping, as proposed, will contribute positively to the character and amenity of the SHNP area. It will also contribute to the amenity of the site, particularly at ground level, and will aid in balancing the bulk and scale of the proposal in conjunction with other aspects of the design, including the design of the subtle podium to which I have already referred. All of these matters are confirmed by the visual aids in evidence, namely the architectural and landscape plans read with the photomontages and elevations.
  1. [302]
    As to PO55, even if it were assumed the deep planting proposed did not comply, in part, with the terms of the performance outcome, this does not warrant refusal of the application. It does not establish a symptom of overdevelopment. I am satisfied the non-compliance, if any, would not include sub-paragraph (b) of the performance outcome. The proposed landscaping, deep planting and street trees will, in combination, achieve the stated planning objective. Further, the non-compliance with the balance of PO55 would not, as a consequence, sound in any unacceptable impacts.
  1. [303]
    Accordingly, Wharf has established, contrary to Mr Peach’s assertion, the landscaping proposed in the design of the development is appropriate and not a symptom of overdevelopment.

Exercise of the planning discretion

  1. [304]
    The proposed development does not comply with version 8 of City Plan 2014, being the planning scheme in force at the time the application was properly made. When examined against version 8 of the planning scheme: (1) there is no encouragement for a development of the bulk, scale and form proposed; (2) there is no encouragement for the building-to-building relationship proposed with Quattro on Astor. Put simply, the proposed development does not comply with version 8 of the planning scheme. The nature and extent of that non-compliance is significant. The nature and extent of the non-compliance with version 8 of the planning scheme is a compelling basis to refuse the application.
  1. [305]
    The exercise of the planning discretion is not however limited to a decision based on an assessment against the planning documents in force at the time the application was properly made. The assessment manager, and this Court on appeal, may have regard to amended or new planning documents. It is also permissible to have regard to the continued relevance of planning documents where they have been superseded by way of amendment, or repeal. This enables the planning discretion to be exercised in a way that is consistent with the most contemporary statement of planning intent, which is regarded as an expression of the public interest.
  1. [306]
    Here, the planning documents in force at the time the application was properly made have been superseded. They no longer reflect the public interest. The planning intent for this part of Brisbane has changed. This change has occurred in a protracted way; by planning scheme amendments, which are now embodied in version 13 of City Plan 2014. The proposed development, assessed against version 13 of the planning scheme demonstrates compliance. Importantly, compliance is demonstrated with the most particular and locally focussed statement of contemporary planning for this part of Spring Hill. Development that complies with a planning scheme in this way is regarded as being in the public interest.
  1. [307]
    To refuse the application by reference to version 8 of the planning scheme would, in my view, serve no planning purpose. As Mr Buckley fairly conceded, compliance with version 13 left him ‘nowhere to go’ and no planning reason remained to warrant refusal of the application. It would be illogical not to give the assessment of the application against version 13 determinative weight in such circumstances.
  1. [308]
    I am satisfied the application should be approved given the combination of the following matters, namely:
  1. (a)
    version 8 of City Plan 2014 has been superseded and overtaken by version 13;
  1. (b)
    save for one aspect of an overall outcome in the SHNP code[141], the proposed development complies with the most detailed and locally focussed planning in version 13 of City Plan 2014;
  1. (c)
    the proposed development, if approved and constructed, will not give rise to any unacceptable impacts on the amenity or character of the local area; and
  1. (d)
    the proposed development is of a high architectural standard - as Mr Robinson said, it will set a new benchmark for building design in Spring Hill and act as a catalyst for redevelopment. This is precisely what is envisaged by the SHNP code, and the Principal centre zone code.
  1. [309]
    If it were assumed for the purposes of version 13 of the planning scheme that the development does not include a ‘street building[142], my view would not change. I would still approve the development because, for the reasons given in paragraphs [244] to [253] above, compliance has been demonstrated with the underlying planning objectives sought to be achieved by a street building, which are articulated in PO4 of the SHNP code. The absence of a ‘street building’ in the strict sense is of no planning consequence.
  1. [310]
    In addition, Wharf relied upon an asserted need for the development as a discretionary reason to warrant approval of the application. It is unnecessary for me to deal with this issue because: (1) it is not expressly raised as an issue for consideration by a provision in version 13 of City Plan 2014: and (2) I am satisfied the application should be approved for the reasons set out in paragraph [308].

Conclusion

  1. [311]
    I am satisfied Wharf has discharged the onus.
  1. [312]
    The appeal is dismissed.
  1. [313]
    I will hear from the parties as to the need for any consequential orders, in particular, any consequential orders with respect to conditions. The appeal will be mentioned at 9:15am on 23 August 2019 for this purpose.

In the Planning and Environment Court

No. 1851 of 2017

Held at: Brisbane

 

Between:

NEIL WARREN PEACH

 

                                        Appellant

 

And:

And:

 

 

BRISBANE CITY COUNCIL

 

WHARF INVESTMENT CORPORATION PTY LTD

(ACN 169 279 681)

                                    Respondent

 

                               Co-Respondent

City Plan 2014 provisions/issues

Submissions

Bulk and Scale

Petrie Terrace and Spring Hill Neighbourhood Plan Code

OO8(a)

The Appellant Submits that the Proposed Development does not comply with this provision because the intensity of the development (represented by the bulk and scale of the Proposed Development), combined with a shortage of available and otherwise suitable high-density sites nearby (evidence of Mr Buckley), does not allow for any gradation of intensity. Instead, the bulk and scale of the building has the effect of locating in the neighbourhood plan area an isolated high-density building, of an intensity of development that should be located in the CBD.

PO1

The Proposed Development does not satisfy AO1 and it does not comply with PO1 because the scale of the Proposed Development does not achieve the intended outcome for the precinct, does not improve amenity, does not contribute to a cohesive streetscape or built form character, is inconsistent with the anticipated density of development, is not proportionate to and commensurate with the frontage width (as it occupies the entire frontage), is not designed to avoid significant adverse amenity impacts on Quattro and is not sited to be well separated from Quattro.

PO17

The Proposed Development does not satisfy AO 17.1 because it has more than four times the maximum gross floor area, and the Proposed Development does not satisfy PO17 as the bulk of the Proposed Development is not consistent with the density and nature of the neighbourhood plan area.

PO18

The Proposed Development does not satisfy AO18.1 or AO18.2, due to the absence of minimum setbacks (at least three metres), ,and the Proposed Development does not satisfy PO18 because the bulk and form does not maintain a sense of open space or pedestrian scale in public and pedestrian areas.

PO23

The Proposed Development does not satisfy AO23.1 because the site cover above maximum podium height is 82% rather than the maximum of 30%, and the Proposed Development does not satisfy PO23 because the bulk and scale of the Proposed Development means that the building above maximum podium height is not a “narrow” building, allowing for views between towers or allowing for adequate light and air to reach both the Proposed Development and Quattro.

PO24

The Proposed Development does not satisfy AO24 as it does not have the minimum setback above maximum podium height, and the Proposed Development does not satisfy PO24 as the bulk of the building does not allow it to be well separated from Quattro to allow light penetration, air circulation and outlook, and the built-to-boundary walls above maximum podium height have long unsightly expanses of blank walls.

Spring Hill Neighbourhood Plan Code

OO(3)(i)

The Proposed Development does not satisfy this provision because the bulk and scale of the Proposed Development means it cannot be described as a slender tower, and because the design leading to that bulk and scale does not “maintain the openness of street vistas” and does not provide adequate spacing between buildings to allow light penetration, air circulation, and views and vistas.

PO2

The Proposed Development does not satisfy PO2 (for which there is no Acceptable Outcome) because the bulk and scale of the Proposed Development means that it is not designed to respond to its site context and setting, particularly given the nearby development, including Quattro.

PO3

The Proposed Development does not satisfy AO3.1 or AO3.2, as the boundary setbacks are less than the prescribed minima  and/or  the tower site cover  exceeds the prescribed maximum. It does not satisfy PO3 because it has a scale and form that does not contribute to a cohesive streetscape and built form character, it would cause significant and undue adverse amenity impacts on Quattro (with regard to light penetration, air circulation, and the preservation of views and vistas) together with perception of overbearing and oppressive development, and the Proposed Development can in no way be described as a building that is well separated from Quattro.

Mixed Use Zone Code

OO(5)(a)

The Proposed Development does not satisfy this provision because it has a bulk and scale that is not tailored to its specific location and the characteristics of the site arising from the nature of the surrounding neighbourhood.

OO(5)(b)

The Proposed Development does not satisfy this provision because the Proposed Development does not have an intensity and form (as a result of its bulk and scale) that is tailored to the individual area,  and it does not sensitively transition to the adjoining Quattro building.

OO(5)(c)

The Proposed Development does not satisfy this provision because, as a result of its bulk and scale, the Proposed Development does not have a built form that creates a consistent and cohesive streetscape.

OO(5)(h)

The Proposed Development does not satisfy this provision because the Proposed Development is not sensitively designed to avoid or mitigate any potential adverse impact on the adjoining residential use of Quattro. Quite frankly, there has been no serious attempt made to design the Proposed Development to reduce the amenity impacts for Quattro in any meaningful or effective way.

Centre or Mixed Use Code

OO(2)(g)(i)

The Proposed Development conflicts with this provision because the bulk,  scale and form of the Proposed Development is not consistent with the intended spatial arrangement of development, as expressed   in the zone, and neighbourhood plan outcomes.

PO20

The Proposed Development does not satisfy AO20 because, amongst other things, it does not satisfy set backs and building separation requirements, and the Proposed Development does not comply with PO20 because it has a bulk & scale that is not consistent with the intended form and character of the local area, particularly considering the height of the adjoining Quattro building, and the location, set back, and separation of the Quattro building.

PO23

The Proposed Development does not satisfy AO23 because it does not meet the front boundary set back requirements of the neighbourhood plan and the Proposed Development does not satisfy PO23 because it does not relate to the existing street scape or reinforce the preferred character and form intent (as a result of the bulk & scale of the Proposed Development) and it does not provide for appropriate interface and transition between the Proposed Development and the adjoining lower intensity development at Quattro.

PO24

The Proposed Development does not satisfy AO24 because the set backs do not meet the requirements of the neighbourhood plan, and the Proposed Development does not satisfy PO24 because there is no provision for deep planting. The non-compliance with these provisions is dependent upon the characterisation of the Common Boundary between Quattro and the site as a rear boundary.

PO25

The Proposed Development does not satisfy AO25 because it does not have appropriate side boundary set backs exceeding the specified minimum, and the Proposed Development does not comply with PO25 because the set backs for the Proposed Development do not minimise the impact of development on the amenity of the Quattro residence, do not contribute to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character, and do not providefor breezes and sunlight to the neighbouring residential use.

PO26

The Proposed Development does not satisfy AO26.1 because the Proposed Development does not have the minimum building separation at appropriate levels, in particular levels 6 and above. The Proposed Development does not comply with PO26 because it does not ensure that the separation of buildings between the Proposed Development and Quattro is consistent with the form and character intent for the local area, nor is it located to provide residential amenity, including access to natural light, sunlight and breeze, and it and fails to address and consider (really, in any significant way) the amenity of the adjoining residents at Quattro.

PO28

The Proposed Development does not satisfy AO28 because it exceeds the maximum site cover, and the Proposed Development does not satisfy PO28 because the building footprint and site cover is not of a form and intensity appropriate for the mixed-use location.

PO32

The Proposed Development does not satisfy AO32, because it does not have the required articulation or openings, and the Proposed Development does not satisfy PO32 because the building bulk & scale is not consistent with the form and character intended for the local area and the street. Further, there is no reduction in the bulk & scale by the use of design elements, the Proposed Development does not reflect the local podium form of development, it does not have a human scale for the building base,  it does not contain any horizontal or vertical variations in its profile, and does not make any adequate provision for the amenity of the residents of Quattro.

Principle Centre Zone Code

OO(5)(a)

The Proposed Development does not satisfy this provision because it has a bulk and scale that is not tailored to its specific location nor to the characteristics of the site, including the location of existing buildings, the shape, frontage and size of the site, and the local neighbourhood identity.

Design

Petrie Terrace and Spring Hill Neighbourhood Plan Code

OO8(d)

The Proposed Development does not satisfy this provision because it is not in the form of a podium and tower construction, and the absence of the appropriate podium and tower construction, and the shape of the tower component, does not minimise impacts of loss of light, air and outlook to Quattro.

PO3

The Proposed Development does not satisfy AO3 because the podium height is greater than the specified 3-storeys, and the Proposed Development does not satisfy PO3 because the podium height is not consistent with the precinct’s context, and the scale and design of Quattro.

PO23

The Proposed Development does not satisfy AO23.1 because the site cover above maximum podium height is 82% rather than the maximum of 30%, and Proposed Development does not satisfy PO23 because the bulk and scale of the Proposed Development means that the building above maximum podium height is not a “narrow” building allowing for views between towers or allowing for adequate light and air to reach both the Proposed Development and Quattro.

Spring Hill Neighbourhood Plan Code

OO(3)(f)

The Proposed Developnment fails to comply with this provision because it involves a urban form that is consistent with CBD development rather than Spring Hill Development.

OO(3)(g)

The Proposed Development fails to comply with this provision because its design and siting does not deliver a high quality, subtropical architecture.

OO(3)(i)

The Proposed Development does not comply with this provision because it is not designed as a slender tower which is sited and designed to maintain openness of street vistas with adequate spacing between buildings to allow for light penetration, air circulation, views and vistas, particularly for Quattro.

PO2

The Proposed Development does not satisfy PO2 (for which there is no Acceptable Outcome) because the bulk and scale of the Proposed Development means that it is not designed to respond to its site context and setting, particularly given the nearby development, including Quattro.

PO4

The Proposed Development does not satisfy AO4.1 because it does not have a building form that incorporates a “street building”, which should be construed as a podium with tower above. The Proposed Development does not satisfy PO4 for the same reason.

PO5

The Proposed Development does not satisfy AO5 because it does not have the minimum 30% of site area set aside for landscaped outdoor spaces, and the Proposed Development does not satisfy PO5 because it does not exhibit best practice subtropical design.

Mixed Use Zone Code

OO(5)(b)

The Proposed Development does not satisfy this provision because the Proposed Development does not have an intensity and form (as a result of its bulk and scale) that is tailored to the individual area,  and it does not sensitively transition to the adjoining Quattro building.

OO(5)(c)

The Proposed Development does not satisfy this provision because, as a result of its bulk and scale, the Proposed Development does not have a built form that creates a consistent and cohesive streetscape.

OO(5)(h)

The Proposed Development does not satisfy this provision because the Proposed Development is not sensitively designed to avoid or mitigate any potential adverse impact on the adjoining residential use of Quattro. Quite frankly, there has been no attempt made to design the Proposed Development to reduce the amenity impacts for Quattro.

Centre or Mixed Use Code

OO(2)(i)

The Proposed Development does not satisfy this provision because it does not exhibit sub-tropical design elements.

OO(2)(l)

The Proposed Development does not satisfy this provision because the Proposed Development does not provide high quality on-site landscaping to reduce urban heat island effects and contribute to the sub-tropical landscape character.

PO32

The Proposed Development does not satisfy AO32, because it does not have the required articulation or openings, and the Proposed Development does not satisfy PO32 because the building bulk & scale is not consistent with the form and character intended for the local area and the street,  and there is no reduction in the bulk & scale by the use of design elements. Further, the Proposed Development does not reflect the local podium form of development, does not have a human scale for the building base, does not contain any horizontal or vertical variations in its profile, and does not make any adequate provision for the amenity of the residents of Quattro.

PO34

The Proposed Development does not satisfy AO34.1 because it does not contain the design elements to produce ventilation in and around the building, and the Proposed Development does not satisfy PO34 because it does not exhibit sub-tropical design elements to support occupant, resident and user comfort, and outdoor activites and living.

Principle Centre Zone Code

OO(4)(e)

The Proposed Development does not satisfy this provision because it is not tailored to its specific location, and it is not consistent with the location-specific provisions of the neighbourhood plan.

OO(5)(c)

The Proposed Development does not satisfy this provision because it does not involve landscaping, including deep planting, to soften the the dominance of buildings or to integrate with the surrounding area.

OO(6)(c)

The Proposed Development conflicts with this provision because the Proposed Building does not have a design that is appropriate to the context and fits responsibly into the streetscape.

Character

Petrie Terrace and Spring Hill Neighbourhood Plan Code

PO18

The Proposed Development does not satisfy AO18.1 or AO18.2, due to the absence of minimum setbacks (at least three metres), and the Proposed Development does not satisfy PO18 because the bulk and form does not maintain a sense of open space or pedestrian scale in public and pedestrian areas.

Spring Hill Neighbourhood Plan Code

OO(3)(f)

The Proposed Developnment fails to comply with this provision because it involves a urban form that is consistent with CBD development rather than Spring Hill Development.

PO3

The Proposed Development does not satisfy AO3.1 or AO3.2, as the setbacks and site cover for the Proposed Development fail to comply with the specified criteria. It does not satisfy PO3 because it has a scale and form that does not contribute to a cohesive streetscape and built form character, it would cause significant and undue adverse amenity impacts on Quattro (with regard to light penetration, air circulation, and the preservation of views and vistas) together with perception of overbearing and oppressive development, and the Proposed Development can in no way be described as a building that is well separated from Quattro.

Mixed Use Zone Code

OO(5)(a)

The Proposed Development does not satisfy this provision because it has a bulk and scale that is not tailored to its specific location and the characteristics of the site arising from the nature of the surrounding neighbourhood.

OO(5)(b)

The Proposed Development does not satisfy this provision because the Proposed Development does not have an intensity and form (as a result of its bulk and scale) that is tailored to the individual area and does not sensitively transition to the adjoining Quattro building.

Centre or Mixed Use Code

OO(2)(i)

The Proposed Development does not satisfy this provision because it does not exhibit sub-tropical design elements.

PO20

The Proposed Development does not satisfy AO20 because, amongst other things, it does not satisfy set backs and building separation requirements, and the Proposed Development does not comply with PO20 because it has a bulk & scale that is not consistent with the intended form and character of the local area, particularly considering the height of the adjoining Quattro building and the location, set back, and separation of the Quattro building.

PO23

The Proposed Development does not satisfy AO23 because it does not meet the front boundary set back requirements of the neighbourhood plan, and the Proposed Development does not satisfy PO23 because it does not relate to the existing street scape or reinforce the preferred character and form intent (as a result of the bulk & scale of the Proposed Development) and it does not provide for appropriate interface and transition between the Proposed Development and the adjoining lower intensity development at Quattro.

PO24

The Proposed Development does not satisfy AO24 because the set backs do not meet the requirements of the neighbourhood plan, and the Proposed Development does not satisfy PO24 because there is no provision for deep planting. The non-compliance with these provisions is dependent upon the identification of the Common Boundary between Quattro and the site as a rear boundary.

PO25

The Proposed Development does not satisfy AO25 because it does not have appropriate side boundary set backs exceeding the specified minimum, and the Proposed Development does not comply PO25 because the set backs for the Proposed Development do not minimise the impact of development on the amenity of the Quattro residence, do not contribute to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character, and do not provide for breezes and sunlight.

PO26

The Proposed Development does not satisfy AO26.1 because the Proposed Development does not have the minimum building separation at appropriate levels, in particular levels 6 and above. The Proposed Development does not comply with PO26 because it does not ensure that the separation of buildings between the Proposed Development and Quattro is consistent with the form and character intent for the local area, and is located to provide residential amenity, including access to natural light, sunlight and breeze. The Proposed Development  fails to address (really in any significant way) the amenity of the joining residence at Quattro.

PO32

The Proposed Development does not satisfy AO32, because it does not have the required articulation or openings, and the Proposed Development does not satisfy PO32 because the building bulk & scale is not consistent with the form and character intended for the local area and the street, is not reduced by design elements, does not reflect the local podium form of development, does not have a human scale for the building base, does not contain any horizontal or vertical variations in its profile, and does not make any adequate provision for the amenity of the residents of Quattro.

Principal Centre Zone Code

OO(6)(c)

The Proposed Development conflicts with this provision because the Proposed Building does not have a design that is appropriate to the context and fits responsibly into the streetscape.

Amenity

Petrie Terrace and Spring Hill Neighbourhood Plan Code

OO3(c)

The Proposed Development conflicts with this provision because the bulk and scale of this commercial development has significant adverse impacts on the residential amenity of Quattro.

OO3(e)

The Proposed Development does not satisfy this provision because expansion onto  this site of commercial uses is discouraged, particularly where the form of the commercial use (with its inappropriate siting, bulk and scale) has had adverse impact upon adjoining residential development at Quattro.

Spring Hill Neighbourhood Plan Code

PO3

The Proposed Development does not satisfy AO3.1 or AO3.2, as the setbacks and site cover for the Proposed Development do not satisfy the relevant criteria. It does not satisfy PO3 because it has a scale and form that does not contribute to a cohesive streetscape and built form character, it would cause significant and undue adverse amenity impacts on Quattro (with regard to light penetration, air circulation, and the preservation of views and vistas) together with perception of overbearing and oppressive development, and the Proposed Development can in no way be described as a building that is well separated from Quattro.

Mixed Use Zone Code

OO(5)(h)

The Proposed Development does not satisfy this provision because the Proposed Development is not sensitively designed to avoid or mitigate any potential adverse impact on the adjoining residential use of Quattro. Quite frankly, there has been no meaningful attempt made to design the Proposed Development to reduce the amenity impacts for Quattro.

Centre or Mixed Use Code

OO(2)(q)

The Proposed Development does not satisfy this provision because the siting and building design does not manage visual and air impacts.

PO24

The Proposed Development does not satisfy AO24 because the set backs do not meet the requirements of the neighbourhood plan, and the Proposed Development does not satisfy PO24 because there is no provision for deep planting. The non-compliance with these provisions is dependent upon the identification of the Common Boundary between Quattro and the site as a rear boundary.

PO25

The Proposed Development does not satisfy AO25 because it does not have appropriate side boundary set backs exceeding the specified minimum, and the Proposed Development does not comply PO25 because the set backs for the Proposed Development do not minimise the impact of development on the amenity of the Quattro residence, do not contribute to the rhythm and pattern of the street scape in keeping with the intended neighbourhood character, and do not allow for breezes and sunlight.

PO26

The Proposed Development does not satisfy AO26.1 because the Proposed Development does not have the minimum building separation at appropriate levels, in particular levels 6 and above. The Proposed Development does not comply with PO26 because it does not ensure that the separation of buildings between the Proposed Development and Quattro is consistent with the form and character intent for the local area, and is located to provide residential amenity, including access to natural light, sunlight and breeze. The Proposed Development  fails to address (really in any significant way) the amenity of the joining residence at Quattro.

Height

Petrie Terrace and Spring Hill Neighbourhood Plan Code

OO8(a)

The Appellant Submits that the Proposed Development does not comply with this provision because the intensity of the development (represented by the bulk and scale of the Proposed Development) does not allow for any gradation of intensity. Instead, the bulk and scale of the building has the effect of locating in the neighbourhood plan area an intensity of development that should be located in the CBD.

PO1

The Proposed Development does not satisfy AO1 and it does not comply with PO1 because the scale of the Proposed Development does not achieve the intended outcome for the precinct, does not improve amenity, does not contribute to a cohesive streetscape or built form character, is inconsistent with the anticipated density of development, is not proportionate to and commensurate with the frontage width (as it occupies the entire frontage), is not designed to avoid significant adverse amenity impacts on Quattro, and is not sited to be well separated from Quattro.

Spring Hill Neighbourhood Plan Code

OO(4)(a)

The Proposed Development does not satisfy this provision because, while meeting the Acceptable Outcome for height, it does not provide a transition between the CBD, Boundary Street Heart Precinct and Spring Hill Mixed Use Precinct – either now or in the future.

OO(4)(b)

The Proposed Development does not satisfy this provision because the Proposed Development is not at a scale that is subordinate to the CBD. In terms of its bulk, scale and intensity it has a scale that is greater than could be expected in the CBD under the City Centre Neighbourhood Plan Code.

Mixed Use Zone Code

OO(5)(a)

The Proposed Development does not satisfy this provision because it has a bulk and scale that is not tailored to its specific location and the characteristics of the site arising from the nature of the surrounding neighbourhood.

Centre or Mixed Use Code

PO21

The Proposed Development does not satisfy AO21 in relation to the Petrie Terrace Spring Hill Neighbourhood Plan Code, because the building height exceeds 10 storeys, and it does not satisfy PO21 because the building height is not consistent with the local and street context.

Role and Function

Centre or Mixed Use Code

PO27

The Proposed Development does not satisfy AO27 because it does not have a gross floor area ratio that complies with the neighbourhood plan, and the Proposed Development does not satisfy PO27 because it has an intensity that does not support the local role and function of the mixed use area, but rather as an intensity equivalent to CBD development.

Landscaping

Centre or Mixed Use Code

PO54

The Proposed Development does not AO54 or PO54, because there is no attempt to provide landscape on the site that will provide the screening, softening, buffering that is sought by those two provisions.

PO55

The Proposed Development does not satisfy AO55.2 because it does not provide 10% of the site area for deep planting (it only has about 6% for deep planting) and the Proposed Development does not satisfy PO55 because the deep planting does not achieve the outcome sought in that provision.

Weight to Version 11

 

Consistent with the evidence of Mr Buckley, the Appellant submits that the Court would give substantial weight to Version 13. However, the giving of such weight to Version 13 does not assist the Co-Respondent in this case. That is because, with the exception of the increase in height limit, all aspects of non-compliance with Version 8 are also identified in the  assessment of the Proposed Development against Version 13. In this regard, the planning and strategies in Version 8 that are relevant to the assessment of the Proposed Development are repeated in Version 13, so that the Proposed Development fails to comply with the provisions of both version 8 and 13 with regards to setback, building separation, site cover, form of development and design of development, and it gives rise to unacceptable adverse impacts, both generally in respect of character, broad visual amenity and in terms of residential amenity for Quattro.

Comparison of Planning Strategies

 

Upon a proper construction of Version 8 and Version 13, the relevant planning and strategies underlying the two versions of City Plan 2014 are unsurprisingly consistent. The two exceptions to this are the increase in height limit under the Acceptable Outcome to  30-storeys (from 10-storeys) and the increase in tower site cover from 30% to 60%. The Proposed Development fails to comply with any of the relevant planning strategies in Version 8 and, with the exception of building height, fails to comply with all the relevant planning strategies in Version 11.

Relevant Matters

 

The Appellant submits that the interest of the Australian Taxation Office in occupying a particular sized building is, like the interest of the Co-Respondent in having its building occupied, simply a matter of private economics that does not give rise to a matter of public interest. Accordingly, it is not a relevant matter for consideration by the Court. There is not even any evidence that any desire by the ATO for a building of a particular size cannot be accommodated in the CBD. The Co-Respondent points to the Approved Residential Development as justification for the Proposed Development. There are two good reason why that the Approved Residential Development does not provide such justification: Firstly, development approval for the Approved Residential Development was issued after Council approved the Proposed Development (hence, the reliance upon the Approved Residential Development to support the Proposed Development is circular); and, second, the Approved Residential Development has significant improvements upon the Proposed Development with regard to built form (in respect of podium treatment, site cover, building separation, setbacks and design elements). Otherwise, the alleged relevant matters identified by Mr Schomburgk really provide justification for the use of site for commercial purposes and do not provide any justification for the built form of the Proposed Development. In this regard, most, if not all of those matters could be equally raised in respect to a building that complies with the Acceptable Outcomes of Version 11.

Footnotes

[1] Robinson: T2-69, Line 30.

[2] Schomburgk and Mulcahy: Ex.5, page 250, paragraph 54 and p.256, paragraph 84.

[3] Ex.8A.

[4] Ex.20, paragraph 1.40.

[5] s. 45(2) of the Planning and Environment Court Act 2016 (PECA).

[6] Ex.16.

[7] The land does not strictly align with the four points of the compass. I have proceeded on the footing that it does for ease of reference and to avoid confusion.

[8] Ex.5, pp.277 and 278.

[9] Ex.7, p.194, condition 16(a).

[10] Ex.5, pp.163-164, paragraph 23.

[11] Ex.5, p.182, paragraph 54.

[12] Ex.5, p.179, paragraph 46.

[13] Ex.5, p.245, Table 1.

[14] Ex.9, p.81, South elevation.

[15] Robinson: T2-65, Line 40.

[16] Ex.5, p.18.

[17] Ibid.

[18] Ex.9, p.83.

[19] Ex.5, p.39, paragraph 129 vi.

[20] Ex.5, p.39, paragraph 129 i; Robinson: T2-69, Lines 11 to 25.

[21] Ex.5, p.39, paragraph 129 iv.

[22] At paragraphs [50], [51] and [54].

[23] At paragraphs [35] to [85].

[24] Which was subject to the requirements of s. 326 of the Sustainable Planning Act 2009.

[25] That are now ss. 45(7) and (8) of the PA.

[26] At paragraph [80].

[27] Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council [2018] QPELR 1102, [48].

[28] Ex.20, paragraph 3.1.

[29] The document is attached to these reasons for judgment.

[30] Ex.20, footnotes 22 to 26.

[31] s. 45(6) of the PA.

[32] Ex.22, paragraph 47.

[33] The development is not a traditional tower and podium design.

[34] Mulcahy: T2-14, Lines 16 to 38.

[35] Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153, [44]; Plafaire Projects Australia Pty Ltd v Council of the Shire of Maroochy & Anor [1991] QPLR 87 and Ko v Brisbane City Council & Anor [2018] QPELR 1130, [83].

[36] Beck v Council of the Shire of Atherton & Anor [1991] QPLR 56, 59 Line C.

[37] Ex.10, p.68, s. 6.2.2.1(a).

[38] Ex.10, p.118, s. 6.2.6.4(5)(a).

[39] Ex.10, p.118, s. 6.2.6.4(5)(b).

[40] Ex.10, p.118, s. 6.2.6.4(5)(h).

[41] Ex.10, p.54, Element 5.1, SO11 and L11.1.

[42] Ex.11. p.68, overall outcome (4)(f)(ii).

[43] Ex.11, p.72, s. 7.1(1).

[44] Ex.10, p.116, s. 6.2.6.4(1), see the second ‘Note’.

[45] Ex.10, p.133, overall outcome (8)(a).

[46] Ex.10, p.133, overall outcome (8)(e)(i).

[47] The ‘Notes’ below PO1 in the planning scheme have been omitted.

[48] See paragraph [242].

[49] Ex.22. para 24.

[50] T2-28, Line 23 to 28.

[51] Ex.20, paragraph 1.41.

[52] Ex.20, paragraph 1.40.

[53] Ex.20, paragraph 4.2.

[54] Ex.20, paragraph 3.28.

[55] Ex.5, p.250, paragraph 53.

[56] T2-52, Line 5 to T2-54, Line 18.

[57] Ex.5, p.10, paragraph 28(ii).

[58] Ex.5, p.254, paragraphs 72 and 74.

[59] Ex.5, p.254, paragraphs 72 and 75.

[60] Ex.11, p.72, s. 7.1(6)(e), (f) and (g).

[61] See paragraphs [109] and [110].

[62] See paragraphs [204] to [217].

[63] Ex.9, p.91.

[64] For example, there is no maximum building height prescribed for a site over 3,000m2 which is outside of the Quay Street precinct or Howard Smith Wharves Precinct (Ex.19). The maximum height is controlled by an overlay that will likely limit the height of development to something well in excess of 30 storeys.

[65] Ex.5, p.5, paragraph 8.

[66] s. 45(5)(a)(ii) of the PA and s. 31(1)(f) of the Planning Regulation 2017.

[67] Ex.5, p.245.

[68] Ex.5, p.38, paragraph 128(i) and p.35, paragraph 117.

[69] SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, 30 [48]; Cowen v Brisbane City Council & Anor [2015] QPELR 1001, 1012 [34]

[70] Ex.5, p.22, paragraph 65ii is one example where it is discussed by Mr Robinson.

[71] Ex.6, p.77, paragraph 8.

[72] Contrary to paragraph 3.5(a) of Ex.20.

[73] Contrary to paragraph 3.5(b) of Ex.20.

[74] Ex.6, p.84, paragraph 34 iv.

[75] Ex.6, p.84, paragraph 34 vi.

[76] Ex.5, p.18, paragraph 56 ii.

[77] s. 7.2.19.5.2(3)(a) and (3)(f) of the SHNP.

[78] Ex.20, paragraph 1.24.

[79] PO2 of the SHNP code.

[80] Ex.20, paragraph 3.25.

[81] Ex.9, p.92.

[82] Ex.5, p.112.

[83] Ex.9, p.92.

[84] As required by PO1 and PO3 of the SHNP, with which the proposal complies.

[85] As required by PO4(a) of the SHNP, with which the proposal complies.

[86] As required by PO4(b) of the SHNP, with which the proposal complies.

[87] Ex.9, p.92 as against Ex.5, p.112.

[88] Ex.5. pp. 33-34.

[89] Ex.5, p.26, paragraph 86.

[90] Chenoweth: T3-54, Line 36 to T3-55, Line 28; T3-57, Lines 19-20; Robinson: T2-82, Line 40 to T2-84, Line 11.

[91] See paragraphs [214] to [217].

[92] Mulcahy: T2-9, Lines 1 to 35.

[93] Ex.5, p.189, paragraph 66.

[94] Ex.20, paragraph 3.26.

[95] Ex.20, paragraph 3.27.

[96] T3-53, Line 1.

[97] Ex.5, p.190, paragraph 70.

[98] T3-51, Line 45 to T3-53, Line 40. 

[99] Ex.11, pp.77 to 80 (acceptable outcomes).

[100] Alleged non-compliance with overall outcome 2(g)(i).

[101] Alleged non-compliance with PO20 and PO32.

[102] Alleged non-compliance with PO23.

[103] Alleged non-compliance with PO23.

[104] Alleged non-compliance with PO24.

[105] Alleged non-compliance with PO25.

[106] Alleged non-compliance with PO25.

[107] Alleged non-compliance with PO25.

[108] Alleged non-compliance with PO26.

[109] Alleged non-compliance with PO26.

[110] Alleged non-compliance with PO26 and PO32.

[111] Alleged non-compliance with PO28.

[112] Alleged non-compliance with PO32.

[113] Alleged non-compliance with PO32.

[114] Alleged non-compliance with PO32.

[115] Alleged non-compliance with PO32.

[116] Ex.5, p.196, paragraph 79.

[117] Ex.5, p.19, paragraph 59.

[118] Having regard to the architectural plans and photomontages.

[119] Ex.5, p.179, paragraph 48.

[120] Ex.5, p.179, paragraph 46.

[121] Ex.5, p.167, paragraph 26.

[122] Ex.5, p.18, paragraph 56 iv.

[123] See paragraphs [147] to [229].

[124] Which is consistent with Mr Robinson’s oral evidence at T2-72, Line 12 to 33.

[125] And thereby inconsistent with overall outcome (3)(f) of the SHNP and overall outcome (4)(e)(iv) of the Principal centre zone code.

[126] Buckley: T2-32, Lines 31 to T2-33, Line 38.

[127] Ex.5, p.18.

[128] The setback occurs between levels 4 and 5 and is depicted on the east elevation (Ex.9, p.80).

[129] T3-24.

[130] T2-27, Line 3 to 28.

[131] Ex.5, p.186, paragraph 65.

[132] Ex.5, p.187, subparagraph (e)

[133] See paragraphs [21] to [26].

[134] Ex.9, p.97.

[135] Ex.9, p.82.

[136] Ex.9, p.78 and Ex.5, p.196, paragraph 79.

[137] Ex.9, p.96 and Ex.5, p.196, paragraph 79.

[138] Ex.5, p.196, paragraph 80.

[139] Ex.22, paragraph 75.

[140] Ex.5, p.196.

[141] The development will not be a slender tower for the purposes of overall outcome (3)(i) of the SHNP code, but otherwise complies with the underlying planning rationale for the provision.

[142] Contrary to paragraph [243].

Close

Editorial Notes

  • Published Case Name:

    Peach v Brisbane City Council & Anor

  • Shortened Case Name:

    Peach v Brisbane City Council

  • MNC:

    [2019] QPEC 41

  • Court:

    QPEC

  • Judge(s):

    Williamson DCJ

  • Date:

    21 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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