Edie v Brisbane City Council[2023] QPEC 9

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal against the respondent’s decision to approve a development application for a development permit for a material change of use (place of worship, church hall and townhouses – parish residences) on land at 33 Bunya Street, 34 Peach Street and 68 to 80 Dunellan Street, Greenslopes (the Site).  The co-respondent is the applicant.
2. [2]
   The Site was owned and operated by Our Lady of Lourdes Church (a Roman Catholic Church) between 18 September 1955 until 25 February 1989.  It was acquired by St Maroun’s Maronite Church, Brisbane on 26 February 1989 and continues to operate as a church.  The proposed development involves the removal of the existing church and parish residence buildings, the retention of the four pre-1947 dwelling houses which will be reused as parish residences and the construction of a new church building and church hall.
3. [3]
   The issues in dispute are whether the built form and scale of the proposed development are compatible with the planning intent, whether the development will result in unreasonable amenity impacts, and, to the extent that there is any non-compliance with the relevant assessment benchmarks, whether the proposed development can be conditioned to achieve compliance. The appellants do not dispute that the Site is suitable for the proposed development having regard both to first planning principles and the historical and long standing use of the Site for a place of worship^[1] The appellants do not oppose the co-respondent making improvements to the existing Church to provide an updated building and agree that the Church is not fit for purpose.^[2]

The Site and the surrounding area

4. [4]
   The Site comprises 9 lots with a total area of 3,645m².  It has three street frontages comprising a frontage of approximately 10.05m to Peach Street, approximately 50.23m to Bunya Street, and approximately 70.4m^[3] to Dunellan Street.^[4]  It falls by about 5.9m from a high point in the south-east corner to low points in the north-west and south-west corners.^[5]
5. [5]
   The Site is currently improved by a church and hall on Bunya Street, a brick dwelling house being a parish residence on the corner of Bunya and Dunellan Streets, three detached dwelling houses on Dunellan Street, and a detached dwelling house in Peach Street. The current church and hall building is a 2-storey brick and timber building.^[6]  The upper level is used for worship and the lower level is used for a range of pastural activities.  The church, hall and parish residence were constructed after 1946.  The other 4 dwellings were constructed before 1947.
6. [6]
   The surrounding area was described by the visual amenity and architectural experts as follows:

“The site adjoins single detached dwelling houses of 1-2 storeys to the south-east, south-west and north-west, the latter accommodating a hairdressing business on the ground floor.  It is understood that the house to the south-east of the site (at 35 Bunya Street) is owned by the Church.

To the north of the site, across Dunellan Street, is a commercial business located on the intersection with Bunya Street (Hair salon).  Detached dwelling houses extend to the west of that building.  To the east of the site, across Bunya Street, is a multiple dwelling, contained within two buildings which are separated by a central driveway access.

Beyond this immediate context, the surrounding area includes predominantly one and two storey dwelling houses which are interspersed with two and three storey multiple dwellings and community facilities including Greenslopes State School, Greenslopes Baptist Church, a Synagogue, and a Bowls Club (refer to Figure 2). Approximately 410 metres to the east of the site is Logan Road, a busy arterial road flanked by a range of commercial uses.”^[7]

7. [7]
   The Site is in proximity to:

   1. (a)
      public park networks identified under the City Plan, which include both Local and District sport and recreation zoned facilities along with Local and District open space zoned parkland.  The Sport and Recreation (District) zoned parkland, the Thompson Estate Reserve, is approximately 220m from the Site and offers a range of recreational facilities;^[8]
   2. (b)
      a variety of public and active transport options, including the Greenslopes Busway Station and bus routes along Logan Road, Juliette Street and Ridge Street;^[9]
   3. (c)
      two Growth Nodes on the Logan Road transport corridor identified in the Strategic Framework, being the Greenslopes Growth Node and Greenslopes Mall Growth Node.^[10]

The current approval

8. [8]
   On 27 July 1954 an approval was granted for the site.^[11] The approval contains no conditions as to parking, noise, hours of operation or numbers of people permitted onsite.  The lawful use of the premises is a matter to which regard must be had in carrying out assessment of the application.^[12] 

Background to the application

9. [9]
   On 16 March 2020, the co-respondent lodged a development application with the respondent seeking a development permit for a material change of use for a place of worship (church building, church hall and parish residences) and a childcare centre and a preliminary approval to demolish the pre-1947 dwellings.  The development application was accepted as properly made on 30 March 2020.^[13]  The application did not require referral to any referral agencies.
10. [10]
    Prior to public notification of the application, the co-respondent decided to retain the pre-1947 dwellings.  During the public notification of the application, 384 properly made submissions were received by the respondent, of which 206 were in support and 178 opposed the proposed development.^[14] 
11. [11]
    Before the application was decided by the respondent, the childcare centre component was removed from the application.^[15]  Other changes made to the proposed development included:

    1. (a)
       increased deep planting from 8% to 18.1%;
    2. (b)
       reduced building height and scale and outdoor sitting area;
    3. (c)
       revised building material;
    4. (d)
       increased boundary setbacks; and
    5. (e)
       re-adjustment of the location and extent of acoustic barriers.
12. [12]
    By decision notice dated 16 July 2021,^[16] the respondent approved the development application subject to conditions.^[17]  In particular:

    1. (a)
       a requirement for onsite carparking to be only for the proposed use (Condition 8);
    2. (b)
       that the church hall, church administration and parish residences are ancillary to the proposed use for a place of worship (Condition 9);
    3. (c)
       the provision of significant landscaping (Condition 18);
    4. (d)
       limiting the hours of operation for the approved use (Condition 19);
    5. (e)
       the maximum number of people allowed onsite including the indoor and outdoor areas (Condition 22);
    6. (f)
       acoustic measures and treatments (Conditions 23, 24 and 25);
    7. (g)
       the provision of onsite car parking for 55 cars and 2 motor cycles (Condition 38); and
    8. (h)
       requirements for equitable access (Condition 54).
13. [13]
    It is the position of the appellant that the extent of mitigation measure required by the conditions are indicative of the unacceptable scale of the development.^[18]

The proposed development

14. [14]
    The new church building will be located at the corner of Dunellan Street and Bunya Street.^[19]  It is a two storey, brick^[20] building comprising a seating area (340m²), 2 alters, office, meeting rooms and mezzanine choir loft.  The new hall fronting Bunya Street is a single storey brick building.  The outdoor sitting and plaza area is 870m² and connects the Church and the hall.  The car park provides 57 parking spaces comprising 55 spaces for cars and 2 spaces for motorcycles.  It is located underneath the church building and the hall and is accessed via a crossover in Dunellan Street.  Acoustic barriers are proposed. 
15. [15]
    The 3 pre-1947 dwellings fronting Dunellan Street are to be raised, with timber batten screens provided to the ground level.  Privacy screening is proposed to the side elevations.  The pre-1947 dwelling fronting Peach Street will be provided with timber batten screens to parts of the existing ground level and privacy screening to the side elevations. 
16. [16]
    Deep planting is proposed adjacent to the frontages to Bunya Street and Dunellan Street, in the western part of the Site to the rear of the church building and hall, and to the south of the church administration area where adjacent to the side boundary with 36 Peach Street.  18.1% of the site area will be landscaped^[21] comprising 525m² of deep planting and 135m² of lawn. 
17. [17]
    To the extent there are inconsistencies between the approved landscape plans and the architectural plans, the co-respondent is content for the architectural plans to prevail.  This involves enhanced landscaping.^[22]
18. [18]
    The majority of the new church building is below 9.5m above the natural ground.  The maximum roof heights of the new church building are 10.2m to the rear gable  and 12.5m to the top of the bell tower dome.^[23]  The highest parts of the new church building are significantly set back from the street. The top of the bell tower dome is set back approximately 9.4m from Bunya Street and 21m from Dunellan Street and the rear roof gable peak is set back approximately 35m from Bunya Street and 15.5m from Dunellan Street.^[24]
19. [19]
    The new church building has a minimum setback of 4.16m from Bunya Street to the portico, 5m from Dunellan Street to the plaza level church wall and a minimum setback of 1.5m from Dunellan Street to the underground car park wall (which varies in height from 1.2m to 2.5m).^[25]  The single storey hall has setbacks of 3m from the southern boundary and 7.535m from Bunya Street.^[26]  The bell in the bell tower is silent. 

What is the statutory assessment framework for the decision?

20. [20]
    The appeal is to be determined under the Planning Act 2016 (Qld) (Planning Act) and the Planning and Environment Court Act 2016 (Qld) (PECA).  The Court stands in the shoes of the assessment manager and decides the application anew.^[27]  The co-respondent bears the onus in the appeal.^[28]  In deciding the application the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.^[29] 
21. [21]
    As the Development Application was subject to impact assessment, the assessment:

    1. (a)
       must be carried out;

       1. against the relevant assessment benchmarks in a categorising instrument that was in effect when the development application was properly made.
       2. having regard to any matters prescribed by the Planning Regulation 2017 (Qld).  Relevantly, this includes any development approval for, and any lawful use of, the premises or adjacent premises and the properly made submissions^[30] to the extent the assessment manager considers relevant to the development^[31]; and
    2. (b)
       may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.^[32] 
22. [22]
    A broad discretion is conferred by s 60(3) of the Planning Act in deciding an impact assessable application.^[33]  The decision maker is to balance the factors to which consideration may be given.  Non-compliance with an assessment benchmark does not necessarily dictate refusal of a development application.^[34]  The extent to which a flexible approach to the exercise of discretion will prevail will turn on the facts and circumstances of each case, including the nature and extent of the non-compliance, if any, identified with an assessment benchmark.  

What is the planning framework?

23. [23]
    Version 18 of Brisbane City Plan 2014 (City Plan) was in effect at the date the development application was properly made.^[35]  It is the only relevant categorising instrument.
24. [24]
    Under City Plan, the Site is in the Character Residential (Infill Housing) Zone, is within the Coorparoo and District Neighbourhood Plan (the Neighbourhood Plan) but is not mapped within any of the precincts,^[36] and is covered by the Traditional Building Character Overlay (the TBC Overlay).^[37]  The Community Facilities Code^[38] and the Transport, Access and Parking and Servicing Code^[39] The TAPS Code apply.  Land within 100-200m of the Site is in the Character Residential (Infill Housing) Zone.  Greenslopes Baptist Church and the South Brisbane Synagogue are both located within the Character Residential (Infill Housing) Zone. 
25. [25]
    Pursuant to City Plan, there is compliance with a code where the development complies with either:

    1. (a)
       The purpose, overall outcomes, and performance outcomes of the code; or
    2. (b)
       The purpose, overall outcomes and acceptable outcomes of the code.^[40]
26. [26]
    Where there is inconsistency, s 1.5 of City Plan provides the hierarchy of scheme provisions.  To the extent of any inconsistency:

    1. (a)
       the Neighbourhood Plan Code prevails over the other relevant codes;^[41] and
    2. (b)
       the Character Residential Zone Code prevails over the Community Facilities Code.^[42]
27. [27]
    The principles of statutory construction apply to the construction of planning instruments.^[43]  The planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of the Site.^[44]

Issues in dispute

28. [28]
    The Order of 4 February 2022 defined the issues in dispute.  These issues raised the following matters:^[45]

Character and form

1. Whether the proposed development is compatible with the planning intent for the area, including the character and built form requirements of the planning scheme, having regard to both the following assessment benchmarks and whether the proposed development is of a height, bulk and scale that:-

1. (a)
   is appropriate, in relation to:-

1. (i)
   the prevailing built form and streetscape of the subject land and its surrounds; and

2. (ii)
   the use proposed;

2. (b)
   is consistent with:-

1. (i)
   the existing and desired building height for the area; and

2. (ii)
   community expectations for development in the area;

Identified Assessment Benchmarks

3. (c)
   Strategic framework, s. 3.4.1(1)(b) and (c) and s. 3.4.2 – SO12 and SO20;

4. (d)
   Character Residential Zone Code – Purpose and Overall Outcomes 4(j), 5(a), 5(d) and 5(g);

5. (e)
   Coorparoo and Districts Neighbourhood Plan Code – Overall Outcomes 3(b), 3(e) and 3(j);

6. (f)
   Community Facilities Code – Overall Outcomes 2(a), 2(f)(iii-v), 2(j) and PO1, PO14 and PO15.

Amenity

2. Whether the proposed development would result in unacceptable adverse amenity impacts upon nearby residences having regard to both the following assessment benchmarks and whether the proposed development is inconsistent with the character and amenity of the area arising from traffic, lighting, and noise associated with the proposed development (including its hours of operation and levels of patronage) and built form considerations.

Identified Assessment Benchmarks

1. (a)
   Character Residential Zone Code – Purpose and Overall Outcomes 4(d), 4(j)^[46] and 7(f);

2. (b)
   Coorparoo and Districts Neighbourhood Plan Code – Overall Outcome 3(j) and PO3;

3. (c)
   Community Facilities Code – Overall Outcomes 2(f)(iii-v) and PO1 and PO25;

4. (d)
   Transport, Access, Parking and Servicing Code – Overall Outcomes 2(c), (d), (e) and (f).

Conditions

3. To the extent any non-compliance with the identified assessment benchmarks is established, whether the proposed development can be conditioned to achieve compliance with those assessment benchmarks; and

Relevant matters

4. Whether the relevant matters relied upon by the respondent and the co-respondent are made out and support approval of the proposal.

The submissions and reasonable community expectations

29. [29]
    The adverse submissions^[47] raised issues including loss of residential amenity, the scale of the proposed development, its visual impact, that the design is inconsistent with the predominant Queenslander character of the locality, acoustic impacts and that the proposal was contrary to expectations.^[48]  The submitters indicated a desire to protect the character of the area and recognized that a church use will continue on the Site.
30. [30]
    The submissions in support of the proposal^[49] related primarily to the inadequacy of the current church and hall, that the proposal responded to the needs to the congregation including providing an increased number of car parking spaces.^[50]  They reflected an expectation that a long-standing use be able to continue on the Site in a facility that was fit for purpose and accorded with contemporary standards. 
31. [31]
    The properly made submissions related to a significantly different form of development to that which is now proposed.  Changes have been made to the development application as outlined in [12] above.  The submissions indicate the development at that time was three storeys and had a height of 14.3m (or 11.84m excluding the belltower) and included a childcare centre of 524 m² GFA to accommodate 80 children.  Thus, to the extent the submitters expressed concerns about the size and scale of the proposal, they are not concerns about the proposal now before the Court. 
32. [32]
    For the purposes of s 45(5) of the Planning Act, I give limited weight to the submissions in so far as they relate to the perceived impacts of this proposal.  This is because of the substantial differences between the proposal the subject of public notice and the proposal before the Court, that those concerns are speculative and the issue of amenity and impacts of this proposal have now been considered by the experts in this appeal.
33. [33]
    As observed by the Court of Appeal, determining whether the development is within reasonable community expectations is a three-step process involving:-

    1. (a)
       a determination of the expectations of the community;
    2. (b)
       an assessment of the reasonableness of those expectations considering the planning provisions applying to the subject land; and
    3. (c)
       after the reasonable expectations are identified by following the first two steps, consideration of the extent to which those expectations are consistent with the proposed development.^[51]
34. [34]
    Regard must be had to the submissions in respect of the development application and the statements prepared for the purposes of the appeal to determine the community expectations.  The appellants and the co-respondent each produced lay witness statements.  While each objected to parts of the statements produced by the other^[52] they each submitted that it was a matter of weight, rather than admissibility.^[53] 
35. [35]
    The appellants’ lay witness statements reveal concerns about bulk, height and scale, traffic impacts, acoustic impacts and an expectation that any redevelopment of the Church would be of a similar scale to that existing on the Site.  Further, they reflected an expectation that the residents would not experience the level of noise and traffic impacts presently experienced.^[54]  The appellants submitted that the expectations of the local community are for development that has a bulk, scale and form consistent with and reflective of the character residential zoning of the area. 
36. [36]
    The co-respondents produced four lay witness statements from members of the community being long-standing^[55] members of the parish of the St Maroun’s Maronite Church.  These statements indicated that the church is important to the community and that these witnesses are concerned that the present church building is outdated and no longer fit for purpose, such that parishioners worship outside requiring that the doors remain open, and that it lacks features to promote accessibility.
37. [37]
    The reasonable expectations of the community should also be informed by the approval for and lawful use of the Site.  The submissions and statements generally reflect an expectation that the church use would continue.  However, in my view, they give insufficient weight to the current use which can continue with limited restrictions, and misconstrue the City Plan as requiring that the proposal be of tin and timber construction.  For these reasons the appellants’ lay witness evidence and the  adverse submissions do not form a sound basis upon which to assess community expectations. 
38. [38]
    In addition to informing community expectations, the historic and ongoing use has influenced the character and amenity of the area.  The St Maroun’s Maronite Church has been an integral part of the Greenslopes community for more than 30 years. I respectfully adopt the observations of Kefford DCJ in Walters & Ors v Brisbane City Council & Anor^[56] (concerning the redevelopment and expansion of an existing retirement facility in a low-density residential area) that:

“Aveo submits the existing use is relevant in assessing the existing character and amenity of the locality.  I agree.  This is an area where the residents in detached houses have apparently successfully cohabited with retirees in a retirement village for more than a generation.  This existing use has influenced the character and amenity of the area.  It informs reasonable public expectations.”

39. [39]
    I accept that it is reasonable that the community expect that the proposal has a scale and form consistent with the amenity and character intended for the Site and complements the traditional building character.     
40. [40]
    Having found below that the proposed development is compatible with the built form intent of the zone, reflects and complements the character and is of a bulk, scale and form consistent with and reflective of that character, I am not satisfied that the community’s expectations reflected in the adverse submissions and the appellants’ lay witness’s statements are reasonable.

Is the bulk, height and scale of the built form acceptable having regard to the assessment benchmarks in dispute?

41. [41]
    The assessment benchmarks with which the appellants allege non-compliance in relation to the built form and scale of the proposed development are set out below:
42. [42]
    Strategic outcome 3.4.1(b) and (c) and SO12 and SO20 of Element 2.1 of the Strategic Framework provide that:

43. [43]
    The purpose and overall outcomes OO4(j), OO5(a), OO5(d) and OO5(g) of the Character Residential Zone Code provide that:

44. [44]
    Overall outcomes OO3(b), OO3(e) and OO3(j) of the Neighbourhood Plan Code provide that:

45. [45]
    Overall outcomes OO2(a), OO2(f)(iii) and (iv) and (v) and OO2(j) of the Community Facilities Code provide that:

46. [46]
    The appellants called Mr Curtis to address visual amenity and architecture.  The respondent called Dr McGowan to address visual amenity.  The co-respondent called Mr Olsson to address architecture, and Mr Powell to address visual amenity, landscaping and character.  Planning evidence was given by Mr Buckley for the appellants, Ms Owens for the respondent and Mr Mewing for the co-respondents.
47. [47]
    Mr Curtis conceded that height was not an issue.^[58]  Bulk and scale are inherently subjective matters.  Context is relevant. 
48. [48]
    Mr Curtis, Mr Powell, Mr Olsson and Mr McGowan agreed that:

    1. (a)
       the local area is characterised by detached housing, including housing with traditional building character, as well as a range of larger multiple dwellings, two other religious facilities and a school;
    2. (b)
       the proposed development would not cause undue impacts on surrounding residential properties in terms of over-shadowing, overlooking or on outlook;
    3. (c)
       the proposed landscaping is adequate; and
    4. (d)
       the enhanced landscaping (see [18]) would be beneficial.^[59]
49. [49]
    Mr Powell and Dr McGowan agreed that the proposed landscaping and deep planting was generous and well-located, and would assist to integrate the built form, reinforce the sub- tropical character and contribute to high quality streetscapes.  Mr Olsson opined that the landscaping is appropriately located and generously provided, is substantial in scale and density, mitigates potential impacts, and reinforces the character of low-rise buildings in green landscaped areas.  He is of the opinion that the landscaping would enhance the public realm of Dunellan and Bunya Streets and reinforce a distinctive sub-tropical character in the area. I accept this evidence.
50. [50]
    Mr Powell, Mr Olsson and Mr McGowan agreed:

    1. (a)
       the proposed development will, in terms of height, scale and form, achieve an appropriate degree of compatibility and complementarity with the existing and intended character of the local area;
    2. (b)
       the proposed development will not result in undue impacts in terms of overbearing.^[60]
51. [51]
    Mr Curtis focused on the traditional building character houses in ascertaining the existing character, and considered that they contributed to the cohesiveness of the streetscape and identity of the local character zone.^[61]  Mr Curtis opined that the traditional building character of the area remains the prevalent character.^[62] He opined that buildings in the area that were not traditional building character detracted from the prevailing traditional building character of the area.^[63]  However, he accepted that he would defer to Mr Olsson with respect to traditional building character.^[64]
52. [52]
    Mr Olsson opined that the area has a mixed use character, being a composite of timber detached houses interspersed with community buildings, commercial and multiple dwelling housing in a range of materials including timber, brick, and painted render finishes and a combination of these.^[65] 
53. [53]
    Mr Powell described the character of the Site as transitioning from east to west, from the brick and timber church to the brick parish residence, to the Dunellan Street access and the pre-1947 dwellings to the west.^[66]  He observed a similar transition in the immediate context of the Site, with large contemporary multiple dwellings across Bunya Street (including brick buildings), a commercial use across the road in Dunellan Street and pre-1947 dwellings to the west of the commercial use.^[67]  He found this transition was further reinforced in the immediate locality comprising that area within approximately 200m of the Site.^[68]  There is a greater mix of forms in the south and east^[69] and a more consistent character to the west of the parish residence on Dunellan Street.^[70]   This mix of forms includes pre-war and post-war buildings.
54. [54]
    In my view, in arriving at this opinion, Mr Curtis erred in identifying the existing character as he failed to give sufficient weight to the non-traditional building character development in the area.  It is the combination of the nature of the built forms and materials used in the area that inform its character.  For these reasons, I prefer the evidence of Mr Olsson and Mr Powell in relation to the character of the area.
55. [55]
    I find that the character of the immediate locality, informed by a mix of land uses, building forms and materials, is mixed. That there is a mix of building types and building materials in the area is apparent from the images in NP5 to NP14,^[71] Exhibit 12.12, and the Built Form Context Map.^[72] The character of the locality is not pristine.  Nor does it have a dominant traditional building character.
56. [56]
    The visual amenity experts agreed that significant views of the proposal are unlikely to be obtained from beyond the four photomontage viewer locations they identified.^[73]  Three of the viewpoints are in Dunellan Street and one is in Bunya Street. 
57. [57]
    Mr Curtis described the proposed development as an integrated development which reads as a whole.  This campus like setting^[74] contributes, in my view, to the sense of place the proposal achieves.
58. [58]
    Mr Curtis considered the church building to be nicely proportioned and well-articulated and the bell tower to be tasteful.  He considered that it presented “as a church” with the landscaping contributing to softening the look of the building.^[75]  He was somewhat critical of the proposed hall which he said delivered nothing to the street.
59. [59]
    Mr Curtis’ opined that the development has not been designed to reflect and complement the neighbouring existing traditional character houses. This opinion was informed by his characterisation of the area which I do not accept.  For these reasons I prefer the evidence of Mr Powell, Mr Olsson and Mr McGowan.
60. [60]
    Mr Olsson considered that the church built form was quite articulated:

“the way the corner sets in from both streets quite substantially by about 10 metres.  The portico comes forward.  The bulk of the church is set back.  The roofs are articulated by having different levels, the higher roof, the clerestory, the lower lean-to roof.  Going down Dunellan Street, the way – halfway down that built form you have two arches creating in total three bays along that street elevation.  In the details – in the bell tower, …there are rendered cornices and different colours of materials...it’s actually a highly articulated and highly detailed building.”^[76]

61. [61]
    Mr McGowan observed that even though it is a reasonably large building, “the roof form and the horizontal articulation to the walls, the stepping of the height, the set backs and the provision of landscaping all contribute to break down that bulk and – and achieve a – what I think’s an appropriate level of compatibility with the built form in the area.”^[77]
62. [62]
    Dr McGowan identified the following attributes of the proposed development:

“(a) The subject site is relatively large, and the built form is dispersed (as six separate buildings) across the site;

2. (b)
   the church building and hall are well separated from the detached houses and landscaping is located within the site to assist with the visual separation of the church building from the hall and the houses;

3. (c)
   apart from a very limited extent of ridgeline and the belltower on the church building, all of the built form proposed is less than 9.5 metres above ground, which I consider to be a height that would be compatible with most other built form in the area;

4. (d)
   the parts of the development that exceed 9.5 metres (being part of the ridge of the church and the belltower) would not, because of their height have any material impact on the character of the area;

5. (e)
   the proposed church building and the hall are well set back from the street frontages and, as Mr Powell notes, the higher parts of the church building (the ridgeline and belltower) are located some distance into the site;

6. (f)
   while it is larger than detached housing in the area, the scale of the church building is reduced by fenestration and articulation, including a stepped (clerestory) roof volume;

7. (g)
   the proposed church building adopts a sloping roof that is a consistent feature of housing in the area;

8. (h)
   the proposed hall is a modest building, with limited street presence and would be a compatible form and scale with other built form in the area;

1. (i)
   the church building and hall are of an overall scale that is similar to a number of multiple dwellings in the area;

10. (j)
    the detached houses are entirely consistent with the scale and form of housing in the area;

10. (k)
    the detached houses and the hall provide an effective transition in building scale from the larger church building to neighbouring housing;

10. (l)
    as Mr Olsson observes, the proposed building utilise building materials that are extant in the area, which assist with achieving a relationship to the built form of the area;

10. (m)
    landscaping around the boundaries of the site is appropriately positioned and of appropriate scale to help soften the appearance and apparent scale of the church building and the hall from views in the street and houses opposite;

10. (n)
    street tree planting (which is required by the conditions of approval but has not been shown in the photo montages) would further soften the appearance of the built form;

10. (o)
    landscaping at the rear of the site will help to soften the appearance of the church and hall from views to the west of the site;

10. (p)
    the landscaping on the site includes areas of deep planting that are capable of accommodating large trees which will soften the appearance of the built form, and also contribute to the landscape character of the area.”^[78]

63. [63]
    In Dr McGowan’s opinion, a sub-tropical outcome is achieved through building separation and landscaping.^[79]
64. [64]
    Mr Powell opined that, subject to the imposition of conditions, the proposal:

“(a) will not compromise the strategic outcome for Brisbane’s neighbourhoods to each express their individual identity and will reinforce local distinctive design and landscaping;

2. (b)
   will not compromise the purpose of the character residential zone to ensure that the character of the residential area; (being mixed and transitional) is protected and enhanced;

3. (c)
   is compatible with and integrates with the built form intent for the Zone; and reinforces the sub-tropical character of low rise buildings in green landscaped areas

4. (d)
   will contribute to a strong sense of place and high quality streetscapes;

5. (e)
   is of a height, scale and form consistent with intended character for the site (refer to (c)); and

6. (f)
   will complement the prevailing scale, built form and streetscape of the zone and will vary building form and reduce building bulk by incorporating design elements”^[80] (footnotes omitted`)

65. [65]
    I accept the evidence of Dr McGowan and Mr Powell regarding the attributes of the proposed development.
66. [66]
    I am satisfied that the Site is appropriately sized and configured, enabling the built form to be dispersed across the Site as six buildings, separated by landscaping and an outdoor sitting area which reinforces a sub-tropical character. 
67. [67]
    Mr Buckley accepted that non-residential uses could occur in the locality.  He obtained guidance as to the built form intent from the Character Residential Zone Code.  He opined that the planning purpose of the relevant provisions is to maintain a scale, or achieve a compatible scale, with adjoining dwelling houses to the Site and to the precinct and the protection or enhancement of local character.^[81]  Mr Buckley agreed that if the Court found that there are no unacceptable visual amenity, noise, lighting and traffic impacts the scale of the proposed use is considered acceptable.^[82]
68. [68]
    That a new building must reflect and complement the city’s traditional building character^[83] suggests that it is not intended that the proposal mimic that character.  Churches have a role and function in the community, which is different to the role and function of housing.  Mr Olsson, relying upon the definition of ‘complement’ being to “contribute extra features to something in such a way as to improve or emphasise its quality,”^[84] considered the role of a community building such as a church complements and contributes extra features to a community.  He also opined that it complemented the character of the area by its use of traditional design motifs such as a pitched roof, entry arch and belltower.^[85] 
69. [69]
    Mr Olsson and Dr McGowan gave evidence that it is not a good design outcome for a church to mimic traditional building character; that a tin and timber church would be a highly compromised outcome.^[86]  I accept this evidence. City Plan does not envisage such a design.  Rather, it is intended to be of a height, scale and form consistent intended with the amenity and character and be compatible with and integrate with the built form intent of the zone which is different.  Traditional building character is more than timber and tin.  City Plan recognises that there are other styles of buildings, including the interwar styles of Spanish mission and Californian bungalow, and building materials that are consistent with the character. 
70. [70]
    The design of the church, in particular that the church is well set back from the street frontages with the belltower and the ridge of the church located further into the Site, ensures that the height of the church is compatible with other built form in the area.  Those parts of the development that exceed 9.5m would not, due to their height, have any material impact upon the character of the area. 
71. [71]
    I accept that the landscaping and the design elements including the articulation, setbacks and the stepped roof form all contribute to a softening of the built form.^[87]  These features, in combination with the use of materials, colour and detailing including traditional design motifs, ensure that the proposal is compatible with and integrates with the built form intent of the Character Residential.^[88]  These design features facilitate a varied building form, reducing building bulk.  The retention of the pre-1947 dwellings on the Site facilitates a sensitive transition to surrounding areas.^[89]
72. [72]
    For these reasons, I am satisfied that this proposal is consistent with the reasonable expectations of the community as informed by City Plan and reflects and complements the city’s traditional building character of housing built in 1946 or before.
73. [73]
    Mr Powell, Mr Olsson and Dr McGowan consider the proposal contributes to a high quality streetscape through its form, scale and landscaping outcomes.^[90]   This is supported by the visual aids.  I consider the built form and landscaping of the proposal will contribute to a high quality streetscape.
74. [74]
    For these reasons, I am satisfied that, with the landscaping proposed, the “identified character housing and traditional character streetscapes are retained and protected”, the proposal “complements the prevailing scale, built form and streetscape of the zone…and surrounding areas” and is “consistent with…the character”.  The built form of the proposal, including its size, scale, materials, colour and detailing are consistent with that character.  I am satisfied that identified character housing and traditional character streetscapes are retained and protected, that the design complements the prevailing built form and streetscape of the zone and surrounding areas and is consistent with the character intended for the Site. 
75. [75]
    Reasonable expectations with respect to built form, site layout and landscape design should be informed by an objective reading of the applicable provisions of City Plan.^[91]  I am satisfied the proposal meets those provisions.
76. [76]
    The Appellant said the proposal is not “small-scale”.  The Council agreed.^[92]  Ms  Owens expressed the view that the current facility on the Site was not of a small scale.  As Mr Buckley observed the Church draws parishioners from the local community as well as more broadly.^[93]  This is supported by the submissions.
77. [77]
    I accept that the proposal cannot be characterised as small-scale.  However, it does support local residents.  Thus, while on the basis of my findings I am satisfied that the proposal ensures that the character of a residential area is protected or enhanced, meeting Purpose (a) of the Character Residential Zone Code, as the proposal is it is not small-scale it does not achieve compliance with Purpose (b) of the Character Residential Zone Code. 
78. [78]
    For these reasons, I am satisfied that, subject to the provision of landscaping as proposed, the assessment benchmarks identified in respect of this issue in so far as they relate to built form, except Purpose (b) of the Character Residential Zone Code, are met by the proposal.  As the proposal is otherwise compliant in relation to the character and form components of the assessment benchmarks in dispute, I am satisfied that this non-compliance would not result in any adverse planning consequences.  This is because to the extent the proposal is not small scale, it can be viewed only from a small number of vantage points, any amenity impacts are ameliorated by the design, landscaping, the transition facilitated by the retention of the pre-1947 dwelling houses, and the imposition of conditions.

Does the proposed development have unacceptable amenity impacts?

79. [79]
    The appellants contended that the bulk, height and scale of the proposed development and its hours of operation and levels of patronage would result in unacceptable amenity impacts, in terms of traffic, lighting, noise and general amenity.  They said that while the proposal can be designed to achieve technical compliance with the relevant standards, noise and lighting may result in adverse amenity impacts, particularly as they are beyond the reasonable expectations of the community for development in this zone.
80. [80]
    Issues regarding built form were addressed above.  I am satisfied that the built form is compliant with the City Plan provisions except for the requirement that the proposal be small-scale, and will not for reasons of bulk, height and scale result in unacceptable amenity impacts.  It is consistent with the character of the area. 
81. [81]
    The assessment benchmarks with which the Appellants allege non-compliance in relation to the amenity impacts of the proposed development are set out below:
82. [82]
    The purpose and overall outcomes OO4(d), OO4(j) and OO7(f) of the Character Residential Zone Code provide that:

83. [83]
    Overall outcome OO3(j) and performance outcome PO3 of the Neighbourhood Plan Code provides that:

84. [84]
    Overall outcome OO2(f)(iii), (iv) and (v) and Performance outcomes PO1 and PO25 of the Community Facilities Code provide that:

85. [85]
    Overall outcomes OO2(c), OO2(d), OO2(e) and OO2(f) of the Transport, Access, Parking and Servicing Code (TAPS Code) provide that:

86. [86]
    Amenity is a broad and flexible concept and covers a wide range of considerations, both tangible and intangible.^[94]  Consideration of amenity is informed by the planning scheme and must be reasonable.^[95]  This Court has observed that “the standard of amenity that residents are entitled to enjoy or expect is to be assessed objectively having regard to the planning scheme and its intent for development of the area.”^[96] 
87. [87]
    In considering the amenity impact of the proposal, it is relevant to consider the current use of the Site.^[97]  The current use generates noise, lighting, traffic and parking impacts which are concerns raised by the local residents.^[98] 
88. [88]
    The current church building has little, if any, acoustic treatment.  Due to the lack of space in the church building, areas external to the church building have been used in the course of church activities including church services, weddings and funerals, when people have been forced to worship on the verandas, lawns, staircases, carpark and sometimes on the street.^[99]
89. [89]
    There is no formal parking facility for the current church.  The grassed area, accessed from Dunellan Street, and the area in front of the presbytery’s garage, accessed from Bunya Street, have been used for informal car parking and can accommodate about 22 vehicles.^[100]  Otherwise, parishioners park in the street.  On street parking is a common feature in this part of Greenslopes.^[101] 
90. [90]
    While the current approval contains no conditions regarding parking, noise, light or hours of operation, the use must, of course, comply with regulatory controls, including noise controls, and the environmental protection laws.  Amenity impacts of the development arising from traffic, lighting and noise were addressed by experts in the respective disciplines. 

Proposed Conditions – hours of operation and maximum number of persons

91. [91]
    The Council imposed conditions upon approval of the application.  The co-respondent proposed amendments to those conditions in so far as they addressed hours of operation, numbers of persons onsite and acoustic treatment.  The changes to the hours of operation and numbers of people were proposed in order that the conditions were more readily enforced.
92. [92]
    The co-respondent proposed a condition regarding the hours of operation for the proposed development because the acoustic experts recommended that the condition be amended from that imposed by the Council to restrict the hours and use of the outdoor sitting and plaza area.  The proposed condition follows:

1. (a)
   Church - 

1. (i)
   8am to 9pm, Monday to Sunday;

2. (ii)
   11pm to 12:30am Christmas Eve; and

3. (iii)
   11pm to 12:30am Easter;

2. (b)
   Hall - 7am to 10pm, Monday to Sunday;

3. (c)
   Outdoor sitting area and Plaza area – 11.30am to 3.30pm, Monday to Sunday; Plaza area use outside these hours to be solely for persons to enter and exit the site, to move between the buildings and the undercover car park and for movement between the site buildings;

4. (d)
   Loading/unloading - 7am to 6pm, Monday to Sunday.^[102]

Note: Any activity undertaken outside the above prescribed hours is permitted, provided it does not generate noise that is clearly audible and creates a disturbance within a dwelling or its associated balcony or patio.

93. [93]
    The Council’s Condition 22 provided that: 

“The maximum number of persons on site at any given time is not to exceed 400, with the number of people in each of the following areas limited to a maximum of:

Church  200 people

Hall 100 people

Outdoor seating area and plaza   100 people”

94. [94]
    The co-respondent proposed Condition 22 as follows:

“The maximum number of persons onsite at any given time is not to   exceed 400.

The maximum number of persons in the Outdoor Sitting Area and Plaza is not to exceed 100 at any given time and is not to be used (other than for access purposes) for more than 4 hours in any one day”^[103]

95. [95]
    If its condition 22 was imposed, the co-respondent also proposed Condition 24 to be amended to require glazing and external walls of the church building and hall to achieve increased weighted sound reduction indices.
96. [96]
    The co-respondent submitted that its proposed condition 22 would be preferred because:

    1. (a)
       the fixed 4-hour period is easier to police;
    2. (b)
       the nomination of those particular hours is at a time when ambient noise is high and disruption to neighbours is low;
    3. (c)
       the sound measures in the church and hall are very elaborate;
    4. (d)
       the Court would not restrict the church’s use of the land more than is strictly necessary;
    5. (e)
       the church does not intend to change how the land is used but they would like some flexibility;
    6. (f)
       on a given day up to 300 people can be at the Site;
    7. (g)
       one can very readily imagine a situation where there is a large funeral or wedding (that involves, for instance, people from other faiths, or other geographic areas) and the service could be livestreamed into the hall;
    8. (h)
       there can be no suggestion that any increased numbers will happen with any frequency;
    9. (i)
       there is very forceful evidence that the church has and will be a good neighbour;
    10. (j)
        this condition is easier to police;
    11. (k)
        the management plan (which received Ms Owens’ approval) ensures good practice, as does the close presence of the priest in a quasi caretaker role.
97. [97]
    The appellants indicated a preference for the Council’s Condition 22 because it limited the number of people leaving the hall at the end of a function to 100.

Traffic Impacts

98. [98]
    Mr Pekol addressed traffic and parking impacts.
99. [99]
    The Site is presently served by six driveways.  The proposed development includes four permanent driveways and one temporary driveway controlled by removable bollards.
100. [100]
     Mr Pekol opined, and I accept, that the number, location and design of the driveways are consistent with the requirements of the TAPS Planning Scheme Policy and will ensure adequate levels of vehicular and pedestrian safety on Dunellan and Bunya Streets.^[104]
101. [101]
     The proposed driveway on Dunellan Street will be located in generally the same location as the existing driveway servicing the church.^[105]  Mr Pekol opined that the proposed vehicular access arrangement will improve local amenity by accessing the church from Dunellan Street, rather than from Bunya Street.^[106]  The removal of two permanent driveways will marginally improve traffic operations and safety.^[107]
102. [102]
     In relation to traffic operations pursuant to the Council’s proposed Condition 22, Mr Pekol opined that the proposed development:

     1. (a)
        would result in an imperceptible increase in traffic volumes and congestion on the local street network;
     2. (b)
        would result in traffic volumes on the local street network that would be within the limits nominated in the Council’s infrastructure Design Planning Scheme Policy;
     3. (c)
        would not generate significant levels of additional traffic during the peak school times; and
     4. (d)
        minimises the introduction of non-local traffic into minor residential streets. 
103. [103]
     Relevantly, PO25 of the Community Facilities Code requires that:

104. [104]
     Mr Pekol accepted that Dunellan, Bunya and Peach Streets are each “minor roads” as defined by City Plan.  However, he did not consider Dunellan Street to be a minor residential street because it:

     1. (a)
        provides access to a number of non-residential and commercial land uses including two places of worship, a community hall, a hairdresser and several food and drink outlets;
     2. (b)
        provides access to and is used to drop off/pick up of students at the nearby Greenslopes State School;
     3. (c)
        is the primary access route to and from several other residential cross streets;
     4. (d)
        caters for car parking demands generated by the nearby Greenslopes Hospital; and
     5. (e)
        has centreline markings (which differentiates it from other nearby streets that do not have centreline markings) and a school crossing.^[108] 
105. [105]
     PO25 does not require that there be no non-local traffic introduced into minor roads, but rather that the introduction of such traffic be minimised.  Accordingly, I am satisfied that any non-compliance with PO25 does not warrant refusal of the proposed development because:

     1. (a)
        the vehicular access via Dunellan Street remains unchanged as between the current use and the proposal;
     2. (b)
        Dunellan Street serves a range of non-residential uses and is a connector to the sport and recreation zoned parklands to the west and the Greenslopes growth nodes to the east;^[109] and
     3. (c)
        I accept Mr Pekol’s evidence that the proposed development will result in an imperceptible increase in traffic volumes on the local street network and minimises the introduction of non-local traffic into minor residential streets.^[110]
106. [106]
     As a result of the analysis of crash data for the Dunellan Street/Bunya Street intersection and the Dunellan Street/Peach Street intersection by Mr Pekol, he opined that the historic safety performance of these two intersections is acceptable with few serious crashes and no fatal crashes.  He considered this result consistent with the low background traffic volume, low speed environment and adequate site distances at these intersections.  He opined that these factors would mitigate the likelihood of additional crashes if the proposal proceeded, and that the proposal did not pose an unacceptable safety risk to pedestrians walking along Dunellan Street.^[111]
107. [107]
     Mr Pekol reviewed historical car parking data which suggested to him that the car parking demand associated with the existing church during a typical Sunday service equates to about 46 cars.
108. [108]
     Applying the TAPS Policy and assuming the condition imposed by the respondent with respect to onsite numbers, he determined that the parking requirement for the proposed development should be set at 44 spaces.  Thus, in his opinion the proposal satisfies the requirements in the TAPS Planning Scheme Policy and would eliminate the need for church patrons to park in Dunellan and Bunya Streets during a typical Sunday service. 
109. [109]
     Mr Pekol opined that the development does not need to provide sufficient onsite car parking to accommodate peak parking demands, such as those associated with feast days or a large wedding or funeral.  In forming this opinion, he relied upon Austroads’s Guide to Traffic Management, Part 11 (2020) which indicates that it is not conventional practice to provide parking supply to meet demand on the busiest day of the year but rather it was accepted practice to adopt a level of supply to satisfy the parking demand that will only be exceeded for a number of hours or days each year.  He opined that the proposed parking provision of 57 spaces more than meets the respondent’s TAPS Planning Scheme Policy requirements and exceeds the 85^th percentile parking demand calculated from the historic parking data.
110. [110]
     Given the low frequency of major event days and the ability of the surrounding street network to accommodate additional on street parking demands from time to time, he opined that it would be acceptable for a degree of overflow parking to occur on street on major event days.  This opinion was informed by Mr Pekol’s observation that Dunellan Street has a line marked “parking lane” on both sides of the street and Bunya Street has ample carriageway width to accommodate kerbside parking on both sides simultaneously with two through traffic lanes.  For these reasons, I accept Mr Pekol’s approach.
111. [111]
     For these reasons, he opined that the proposed car parking provided more than enough capacity to cater for the weekly parking demand. He anticipated some overflow parking on “major event” days, but considered it would be unreasonable to expect the proposal to provide off-street car parking and accommodated demand associated with these events.^[112]  Mr Pekol considered that if the proposal proceeded traffic impacts from car parking would decrease from that which is presently experienced in the street.^[113]  The onsite parking spaces proposed will reduce the demand for on-street parking and parking congestion in the local streets^[114] and will improve local amenity.^[115]  I accept this evidence.
112. [112]
     Mr Pekol opined that the number of car parking spaces proposed complied with the requirements of the TAPS Planning Scheme Policy,^[116] and so AO13 of the TAPS Code is satisfied.  The proposed development is therefore taken to “provide onsite car parking spaces to accommodate the design peak parking demand without any overflow of car parking to an adjacent premises or adjacent street.” (PO13 of the TAPS Code).^[117] 
113. [113]
     Mr Pekol’s evidence report assumed the imposition of Council’s Condition 22.  However, he said that if Condition 22 as proposed by the co-respondent was imposed, his opinions did not change with respect to car parking and potential traffic amenity impact,^[118] unless 400 people were onsite once a month.^[119]  Father Salame’s said that large events potentially attracting more than 100 people occur on Church Feast days, Holy Week, Christmas week and funerals.  He observed they do not occur very often and attract between 50 and 200 people.^[120] 
114. [114]
     I accept that the additional onsite car parking will improve the existing traffic and parking situation and local amenity and there will be no unacceptable traffic operations impact and traffic safety risk on the local street network as the result of approval of the proposed development.  Having regard to Mr Pekol’s evidence, I am satisfied that, OO(2)(c), (d), (e) and (f) (in so far as it relates to traffic issues) are met. 

Hours of operation

115. [115]
     In the Character Residential Zone the community may reasonably expect that “development reflects and supports the high level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.”^[121] 
116. [116]
     PO1 of the Community Facilities Code deals with hours of operation.^[122]  They are to be:

     1. (a)
        “consistent with reasonable community expectations for the use”, and “consistent with the purpose of the zone”;^[123] and
     2. (b)
        “controlled so that the community facility does not impact on the amenity of … nearby sensitive uses”.
117. [117]
     The corresponding acceptable outcome, AO1.1, requires development for a non-residential use, including indoor activity areas, to have hours of operation that are limited to 7am to 6pm.
118. [118]
     The appellants submitted that the proposed hours of operation, particularly in respect of the hall, are neither consistent with reasonable expectations for the use, nor consistent with the purpose of the Character Residential Zone (to protect and enhance character residential areas).  They said the hours are not controlled to avoid impacts on the amenity of nearby sensitive uses and are excessive.  Further, they said it is not appropriate for residents of the Character Residential Zone to endure congregation members attending the Site, with associated traffic and noise, seven days a week, from 7 am to 10pm for events in either the church building or in the hall, and even longer on Christmas Eve and Easter.  It was submitted that as conditioned by the Council the lay witnesses’ concerns about impacts arising from the late operating hours indicate that the hours of operation are outside their reasonable expectations. 
119. [119]
     These concerns arise in circumstances where the church is presently operating on the Site and there are limited controls on its use.  It is not sufficient to examine the hours of operation in isolation.  Rather, it is necessary to examine the impact of the hours of operation on amenity.  In the present circumstances this requires a consideration of the impacts of lighting and noise. 

Lighting

120. [120]
     In relation to lighting impacts of the proposed development (including those from security lighting), Mr King’s evidence is that:

“48. Lighting can be readily designed, installed and operated to meet amenity spill and glare requirements of AS4282 which protects the amenity of surrounding areas.”^[124]

121. [121]
     In Mr King’s opinion, an approval of the proposed development with conditions would deliver a better amenity outcome for the neighbourhood than the existing facility, from a noise and lighting perspective.^[125]  A condition requiring that all external lighting comply with the relevant Australian standard can be imposed.
122. [122]
     The appellants submitted that even if designed, installed and operated to meet amenity spill and glare requirements of AS4282, it is usually inevitable that there will be some light spill beyond the boundary.
123. [123]
     I accept the evidence of Mr King that lighting can be conditioned to achieve an appropriate amenity outcome.  I am satisfied that there are no lighting issues which warrant refusal of the proposed development. 

Acoustics

124. [124]
     The proposed development incorporates a number of design features to control noise including acoustic barriers.    The retention of the 4 pre-1947 dwellings act as a buffer between the use and adjoining neighbours.  Conditions limiting patron numbers (including those in the outdoor area) and hours of operation and requiring the adoption of a noise management plan are proposed to address potential acoustic issues.  Mr King, retained by the co-respondent, prepared a noise management plan.^[126]  Mr Beyers, retained by the appellants, and Mr King recommended a range of noise mitigation measures which they opined satisfy the technical requirements with respect to noise emissions.^[127] 
125. [125]
     Despite this, the appellants submitted that while the expert evidence should be respected and given due weight, the Court must have regard to the reasonable and genuine concerns about impacts on amenity notwithstanding those expert opinions.  The appellant said that in the Character Residential zoned area it is not within reasonable expectations for residents to be subjected to the sounds of people chattering and cars departing the site until 10.00pm as permitted by the proposed conditions.
126. [126]
     In Mr King’s opinion, approval of the proposed development with conditions would deliver a better amenity outcome for the neighbourhood than the existing facility, from a noise perspective.^[128]  However, Mr Beyers remained concerned about noise generated by people potentially congregating on the streets or in the plaza area while moving between the church building and hall and their vehicles parked off-site.  These concerns arose because compliance with the acoustic criteria is reliant upon the implementation of conditions limiting the patronage and operations of the church hall and outdoor areas.  If the arrangements for controlling noise are not achievable, noise exceedances will occur. 
127. [127]
     His concern about the adverse impacts on residential amenity of the noise associated with church goers leaving the buildings increased when having regard to the co-respondent’s proposed Condition 22.  His concern arose because this condition theoretically means 400 people may leave the church building or hall at one time (although the evidence was that 400 people could not be seated in the church at one time).  To accommodate this change, Mr King recommended that the building acoustic ratings on the glazing and external walls be increased.^[129]  This does not address Mr Beyers’ concerns.  I prefer Mr Beyers’ evidence on this issue and so prefer Council’s Condition 22, modified to permit the use of the outdoor sitting area and plaza as it reduces the likelihood of an increased number of people leaving a building at one time.
128. [128]
     Mr Beyers and Mr Buckley expressed concern about the ability of the church to enforce compliance with the noise management plan.  In particular, Mr Buckley expressed concern about the church’s ability to monitor the number of people on site and turn away those who exceeded the number.  He considered that the expectations of a person attending church would be quite different to, for example, a gym member similarly turned away for reasons which included that:-

     1. (a)
        while restrictions were in place during the COVID experience, such restrictions he considered more likely to be easier to accept because the restrictions were set by government and the alternative was “potentially calamitous”;
     2. (b)
        where there is such a strong faith and community-based connection with the church at this location, he doubted that where there remained ample seating capacity to accommodate more people, people would accept being turned away;
     3. (c)
        where external worship has been part and parcel of past operations, denying someone entry to the building and suggesting that they leave the premises would be another level of unpleasant management that church leaders would need to enforce and he considered that it would be “impossible in all situations, and at least impractical”;
     4. (d)
        that even if parishioners were denied entry to the building they would be likely to remain in the plaza as the setting and ambience would encourage this; and
     5. (e)
        that requiring the local government to monitor and step in is not the type of balanced outcome the planning system anticipates.^[130]
129. [129]
     Mr Buckley accepted that the ability to manage numbers goes to the heart of the acceptability of the use.^[131] 
130. [130]
     Father Salame,^[132] David Merhab,^[133] and Rania Alexander^[134] gave evidence of their experience during the Covid-19 restrictions successfully implementing restrictions on the numbers of people attending on site.  Father Salame has first-hand experience of enforcing on-site restrictions of patron numbers which confirmed that the co-respondent can manage the number of people on site and maintain attendance numbers and spoke of the steps required and the understanding of the parishioners during that time. 
131. [131]
     I would expect that members of the church community would be understanding of the need to comply with the management plan and respectful of those tasked with its enforcement.  It must, of course, be assumed that persons will act lawfully and comply with conditions of approval.^[135]  For these reasons, I do not accept that the conditions are difficult for the church to implement. 
132. [132]
     The noise management plan requires the implementation and maintenance of a people counting system. Those booking functions are to be informed in writing of the restrictions on the maximum number of people as required by the conditions, church members/staff are responsible for maintaining records of the numbers of people on site and the keeping of records means that they may be made available to the Council for inspection when required.  Conditions can be imposed requiring the implementation, maintenance and compliance with the noise management plan.  The Council can then gather evidence of any breaches.  Thus, a limit on the number of people on site is not difficult for the Church to monitor and for the Council to enforce.
133. [133]
     I am satisfied that these concerns do not warrant refusal of the proposed development because:

     1. (a)
        a condition can be imposed restricting the use of the outdoor sitting area and plaza to “11.30am to 3.30pm, Monday to Sunday” and the plaza area to be used outside of those hours solely for persons entering and exiting the site and moving between the buildings and the undercroft car park and between the site buildings.^[136]  I am satisfied that limited use of the plaza area will address Mr Beyers’ concerns;
     2. (b)
        Mr King’s evidence is that the noise modelling and assessment is conservative^[137] and the noise management plan, with compliance required by the conditions, can adequately deal with the management of people in outdoor areas,^[138] and can be implemented and managed by the co-respondent; and
     3. (c)
        the existing church facility already generates noise impacts in the outdoor areas and the streets.
134. [134]
     A single storey house is located to the south at 35 Bunya Street.  Non-compliance with the noise criteria will arise only if a two-storey house is built at that location.   Mr King’s evidence is that the height of the noise barrier between the hall and Bunya Street could be increased to achieve compliance.^[139]  In the event that 35 Bunya Street is redeveloped in the future, the then owner ought to be aware of the proposed development, and any potential noise impact, and will be expected to design the house accordingly.  I am satisfied that this does not warrant refusal of the application.
135. [135]
     Mr King’s evidence is that the conditions are “more than enough”.^[140]  In Mr King’s opinion, approval of the proposed development with conditions would deliver a better amenity outcome for the neighbourhood from a noise and lighting perspective than the existing facility.^[141]
136. [136]
     The appellant raised a concern about the “note” forming part of the condition concerning the hours of operation.  The content of this note is adopted from the Community Facilities Code.  It is intended to allow for people to attend to pray and for quiet reflection outside the hours specified in the conditions.  In the circumstances, I am satisfied it is appropriate.
137. [137]
     Ultimately, the acoustic experts were satisfied that amenity impacts arising from noise generated by people on site could be satisfactorily addressed by conditions such that noise from the proposed development would not be inconsistent with the character and amenity of the area.
138. [138]
     Accordingly, I am satisfied that the proposed hours of operation will not result in unacceptable amenity impacts and are consistent with reasonable expectations for the use as informed by the historic and current use of the Site. 
139. [139]
     For these reasons, I am satisfied that compliance with the assessment benchmarks in dispute in relation to amenity impacts can be achieved by the imposition of appropriate conditions regarding hours of operation, acoustic matters including implementation of a noise management plan and the number of persons on site.

Relevant matters

140. [140]
     The co-respondent and the respondent said the development ought to be approved having regard to the following relevant matters:

     1. (a)
        the proposed development is appropriate, consistent with community expectations and serves a community need, given the existing and historical use of the subject land as a Place of Worship and associated hall;
     2. (b)
        the proposed development retains and protects traditional character residential buildings on the subject land;
     3. (c)
        the proposed development is an appropriate, well-designed and attractive redevelopment of the subject land, that will:-

        1. increase accessibility for disabled and elderly users of the church;
        2. improve safety and accessibility for the surrounding streets, by reducing the parking and functional impacts of the existing church and hall by retaining existing access points whilst providing 55 internal, off-street car parking spaces (where there is presently no formal off-street car parking) and internalising vehicular access to the front of the church for ceremonial purposes;
        3. improve the existing community facility, including by:-

     1. imposing enforceable conditions on the operation of the proposed development in relation to the number of users, noise limits, hours of use, landscaping, servicing and internal traffic arrangements, access and parking;
     2. improving the comfort, convenience and functionality for users of the church and hall by providing an appropriately located and highly accessible space designed to modern standards; and
     3. containing church activities within the subject land, including internal access to the church from the underground carpark and outdoor areas on the subject land;

     1. (d)
        the proposed development is well-located in close proximity to other community facilities;
     2. (e)
        the proposed development will not cause any unacceptable planning or amenity impacts; and
     3. (f)
        the proposed development is consistent with the Strategic Framework and Community Facilities Code, in that it will:-

        1. contribute to the provision of a wide range of community facilities that support the community’s wellbeing (Strategic Intent, s. 3.4.1(1)(p));
        2. strengthen local identity and respond to and reinforce locally distinctive design, landscape, social values and patterns of development (s 3.4.2 Element 2.1, Table 3.4.2.1, SO5 and L5.1);
        3. contribute to Brisbane having a range of accessible multi-purpose community facilities which meet the social and cultural needs of the local and wider community (s. 3.4.5, Element 2.4, Table 3.4.5.1, SO1);
        4. be located near centres and public transport stations and clustered around existing facilities and linked with the active travel and public park network (s. 3.4.5, Element 2.4, Table 3.4.5.1, L1.2; Community facilities code, Overall Outcome (2)(e));
        5. ensure that one of Brisbane’s existing and appropriately located community facilities is protected (s. 3.4.5, Element 2.4, SO2);
        6. provide a benefit to the broader community that outweighs any potential amenity impacts, if they are established (s. 3.4.5, Element 2.4, Table 3.4.5.1, L2.1; Community facilities code, Overall Outcome 2(h));
        7. support local character and amenity within Suburban Living Areas (s. 3.7.6 Element 5.5; Table 3.7.6.1, SO7); or
        8. contribute to the range of non-residential land uses that generally support the needs of Suburban Living Areas (s. 3.7.6 Element 5.5; Table 3.7.6.1, SO7).^[142]
141. [141]
     The appellants submitted that:

     1. (a)
        the proposed development is an inappropriate scale and far exceeds community expectations for development on the Site;
     2. (b)
        the proposed development will cause unacceptable planning and amenity impacts;
     3. (c)
        to the extent that there is compliance with assessment benchmarks that ought not be given weight as a relevant matter – that is what the development ought to do.
142. [142]
     The present use of the Site can continue with limited restrictions upon its operation and use. The existing approved church facility is no longer fit for purpose. It is inadequate for the community using the facility and inadequate for the community within which the Site is located – particularly for reasons of amenity. I am satisfied that the Site is well located for the proposed development and retains and protects the traditional character residential buildings on the Site.  The proposal is well designed and has architectural merit. I am satisfied that this is an appropriate development which reflects and complements the City’s traditional building character.  The proposal will improve the accessibility and functionality for users of the church and hall and will regulate the operation of the use, benefitting the local community.
143. [143]
     To the extent there is non-compliance with the assessment benchmarks, I am satisfied that refusal of the application is not warranted.  The co-respondent has otherwise demonstrated that compliance with the assessment benchmarks can be achieved with the imposition of conditions.
144. [144]
     For these reasons, I am satisfied that the exercise of the discretion favours approval of the development application. 

Conclusion

145. [145]
     I am satisfied that the co-respondent has discharged the onus and that the proposal can be conditioned to achieve compliance with the assessment benchmarks.  The development application the subject of the appeal will be approved subject to conditions.  The appeal is listed for review on a date to be fixed to enable the parties to agree appropriate conditions.