Ardmore v Brisbane City Council
[2008] QPEC 115
•12 December 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ardmore v Brisbane City Council [2008] QPEC 115
PARTIES:
ARDMORE HOLDINGS PTY LTD
(Appellants)
v
BRISBANE CITY COUNCIL
(Respondent)
FILE NO:
BD 3167 of 2006
PROCEEDING:
Appeal
DELIVERED ON:
12 December 2008
DELIVERED AT:
Brisbane
HEARING DATES:
3 and 4 November 2008
JUDGE:
Judge Brabazon QC
ORDER:
Appeal Dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – development approval – application to extend development approval – desired environmental outcomes – low-medium density area – storey
LEGISLATION CITED:
Integrated Planning Act 1997 (Qld) s 3.5.21, s 3.5.22, s 3.5.23, s 4.1.30, s 4.1.52, ,
COUNSEL:
Mr S M Ure for the Appellant
Mr W Cochrane for the Respondent
SOLICITORS:
Winchester, Young & Maddern for the Appellant
Brisbane City Legal Practice for the Respondent
The Issues
For the last 19 years, Ardmore has had plans to build an apartment building with three home units, at 39/41 Brighton Road, Highgate Hill, Brisbane. It has still not been built. Ardmore again wants to extend the life of its development approval. The Council says that the approval is too old, and that the application process should start again. It has refused to extend the approval.
This is an appeal against Council’s decision not to extend the approval for a third time. It is necessary to say something about the legal framework, which this court must follow.
The Appeal Process
According to s 4.1.52 of the Integrated Planning Act (IPA), every appeal to this court is “by way of hearing anew”. That is to say, it is the duty of the court to reach its own view of the merits of the appeal, independently of the views of Council or an applicant for an approval. It also means that the court hears evidence about the facts, and makes its decision on all the available facts up to the time of the hearing.
Ardmore’s right to appeal comes from s 4.1.30 of IPA which says this:
“Appeals for matters arising after approval given (co-respondents)
1.For a development approval given for a development application, a person to whom any of the following notices have been given may appeal to the court against the decision in the notice –
(a)A notice giving a decision on a request or extension of a period mentioned in s 3.5.21;
…”
Section 3.5.21 of IPA says when an approval lapses, if development is not started. Here, it is common ground that s 3.5.21(1) applies – that is, at the end of a four year period starting on the day the approval takes effect.
If the person wants to extend the four year period, then the assessment manager (the Council) must be asked for the extension, before the approval lapses. See s 3.5.22.
Section 3.5.23 then says how the assessment manager (now this court) must decide that request;
“1.In deciding a request under s 3.5.22, the assessment manager must only have regard to –
(a)the consistency of the approval, including its conditions, with the current laws and policies applying to the development … and
(b)the community’s current awareness of the development approval; and
(c)whether, if the request were refused –
(i)Further rights to make a submission may be available for a further development application; and
(ii)The likely extent to which those rights may be exercised; and ….
2.If there was no concurrence agency, the assessment manager must approve or refuse the extension within 30 business days after receiving the request …”
The Approval
The first approval was granted by Council in February 1990. That was for a three storey apartment building, to contain eight units. The proposal had been advertised to the public in 1989. There was one objection, from Mr M Philips of 38 Franklin Street.
Some modifications to the plans were then allowed by Council. The eight units were reduced to three units. The external appearance of the building changed, though its scale and bulk remain consistent with the earlier approval. The effective start of the present proposal was the permit issued by Council in May 1999.
Time passed. Council agreed to extend the approval for two more years. More time passed. Council agreed to extend the approval for another year, until December 2006.
There was still no progress. An application for a third extension was made. The Council refused that request, in September 2006. This appeal was filed in October 2006.
The Council opposed the further extension of time, and this appeal, on four grounds:
(a)The GFA should not exceed 0.5 x the site area, but it actually exceeds 0.6 x the site area. The building is not otherwise consistent with other buildings in the locality, in terms of size and bulk.
(b)The building is four storeys, rather than two storeys, and has a height of 14 m above ground level, which exceeds the permitted 8.5 m. It is otherwise inconsistent with the low to medium density of a locality.
(c)The development is contrary to the Desired Environmental Outcome for the low-medium density residential area – s 5.4.2 of City Plan. It is not near a centre, public transport or in close proximity to an arterial road.
(d)Because the development was publicly advertised in November 1989, and there has been a significant change of ownership in the properties close to this one, then the court must have regard to the current awareness of the community about the development – s 3.5.23 of IPA.
Ardmore’s request for the extension was in a “Form 2 Development Application” dated 31 May 2006. It is a standard form. At paragraph 24, the appropriate box was ticked – “this request is for an extension of the relevant period for the development approval (s 3.5.22)”.
The application is in a standard form, and the expression, “development approval” cannot be taken too literally. It was not a “development application” which is a term defined in Schedule 10 to IPA. According to that definition, a “development application”, means an application for a development approval. This is not an application for a development approval.
It is necessary to note those definitions, as the further provisions for s 4.1.52 of IPA will not apply. That is, unlike the usual Queensland situation in an appeal, the court is not obliged to decide the appeal based on the laws and policies applying when the application was made.
It is necessary to consider the “consistency of the approval, including its conditions, with the current laws and policies applying to the development”. In this case, the approved plans, and the conditions, are in evidence. Nothing turns on the conditions. Close attention was paid to the four plans, DAO1–DAO4. They were compared to the current provisions in the City Plan, during the course of the appeal.
The Desired Environment Outcomes
This land is now in a Low-Medium Density Residential Area. Section 5.4.2(1) of City Plan sets out the Desired Environmental Outcomes (which, it will be understood, are the fundamental provisions of a planning scheme):
“1.Low-medium density living environments comprise houses, among multi-unit and single-unit development at a house – compatible scale, predominantly of no more than 2 storeys. Higher densities and 3 storey buildings occur near multi-purpose centres, near public transport and along arterial roads. …” (Chapter 3 p 34)
There is a Code which applies to multi-unit dwellings in the low-medium density area. It will apply when a material change of use is assessed. The purpose of the Code may be noted (Ch 5 p 165):
“As the areas to which this Code applies will contain a mix of houses and multi-unit development, the purpose of this Code is to effectively manage impacts of the new development on neighbours while;
·Ensuring new development is compatible in scale and design with neighbouring houses.
·…
·…
·Encouraging multi-unit development that provides a pleasant living environment for its occupants.
·…”
Then follows the Performance Criteria, and Acceptable Solutions. The Introduction to City Plan explains how those ideas are to be applied:
“For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the code’s purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the code’s Performance Criteria. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.” (Emphasis added)
| Performance Criteria | Acceptable Solutions |
| P1 Development size and bulk must be consistent with the low to medium density of the locality | A1.1 Gross floor area is no more than: ● 0.5 times the site area OR ● 0.6 times the site area where the site has frontage to a road with a reserve width of 15.5 m or more, and: - any part of the site is within 200 m radius of any pedestrian entry to railway or busway station, or - any part of the site fronts an arterial route, or - no part of the site is next to a house (where no approval for a multi-unit or single unit dwelling exists) Refer to figure n A1.2 Building height at any point is no more than ● 8.5 m above ground level and 2 storeys OR ● 9.5 m above ground level to the underside of eaves and 3 storeys where the site has frontage to a road with a reserve width of 15.5 m or more, and any part of the site: - is within 200 m radius of any pedestrian entry to a railway or busway station, or - fronts an arterial route, or - containing a building over 8.5 m above ground level or over two storeys is more than 10 m from any lot containing a house (where no approval for a multi-unit or a single unit dwelling exists) A1.3 The site area is a minimum of 600 m2 and has a minimum frontage of 17 m |
The Building
Acceptable solutions A1.1 indicate that the GFA should be no more than 0.5 x the site area. This development does not qualify for the 0.6 x standard, which requires a number of conditions to be fulfilled. The frontage is to a road reserve, with a width of more than 15.5 m, but the land is more than 200 m radius of a railway or bus station, or, no part of the site fronts an arterial route, and part of the site is next to a house, where there is no approval for a multi-unit dwelling. That is, a large heritage listed house beside this land, on Brighton Street, is used as a multi-unit dwelling, but the downhill end of the land adjoins a house on Franklin Street. That house is about 27 m from the proposed building, and there is dense vegetation on the boundary.
Here, the proposed building is 440 m2 GFA. The land has an area of 696 m2 so that the site coverage is about 0.63.
The height of the building was the subject of much debate at the hearing. The number of storeys in the building was also disputed. To understand the differences of opinion, it is necessary to describe the building.
Brighton Road is on a ridge. A pedestrian walking along from the intersection with Franklin Street, and looking to the north, over the city, would see a low home unit building on the corner of Brighton Road and Franklin Street. It is called “Ardoch”. There is then this land, of 696 m2, with a frontage of 14 m to Brighton Road. It is a long thin piece of land, sloping away down the hill to the north. It has been vacant for years, since an old house had been demolished. It is untidy and overgrown with weeds. It is not going too far to say that it is an eyesore.
Thirdly, walking further from the Franklin Street intersection, there is a much larger block of land, about double the size of the subject land, containing a large heritage listed house or apartment building.
The proposed building is shown in the plans, DAO1–DAO4. The plans refer to five levels. The basement is level one. Levels two and three are occupied by units 2 and 3, each of two levels. Level four is occupied by unit 3. A roof deck, plant room, pergola and roof are on level five. However, building height is to be measured above ground level. The elevations show the natural ground line, the accuracy of which was not an issue at the hearing.
On the plans, it is easy to see the building height at any point. Looked at from Brighton Road, it is about 11 m high, above the level of the footpath. The highest building point above ground level is 14 m, from the western edge of the exposed rafters, above the roof deck, down to natural ground level.
Where the natural ground is lowest, the building is three storeys, not including the roof deck. Therefore, the acceptable solutions in the first part of A1.2 are not satisfied. The building is too tall.
Attention was focused, therefore, on the alternative provisions in the second part of A1.2, which allow a taller building. They are available because Brighton Road has a reserve width of more than 15.5m, and it is more than 10 m from any lot containing a house, without multi-unit approval. As noted above, the house below this building would be about 27 m away, and the large house beside it has approval as a multi-unit dwelling.
The question is, what is meant here by the expression “building height at any point is no more than 9.5 m above ground level to the underside of eaves and three storeys …”?
The word “eaves” normally means the underside of a roof where it projects out from the wall of a building. In this building, there are no eaves in that literal sense. As the plans show, there is a metal roof over the air-conditioning rooms. Otherwise, the top level is described as a roof deck. As the side elevation shows, it has a timber structure towards the city end of the building, described as a pergola, and then exposed rafters linking the pergola to the end of the metal roof. That is, they are rafters without roof sheeting on them. They are really a decorative element over the roof deck.
The deck is enclosed with a handrail. It is proposed there would be timber battens to make a screen, on top of the handrail.
As the street and rear elevations show, the metal roof does not extend to the outside edges of the buildings. That is to say, it extends to the edges of the lift rooms, which are narrower than the width of the whole building. Literally, there are no eaves, because the metal sheeting ends flush with the walls around the lift room area.
Faced with those irregular shapes, Mr Knaggs, a planner, chose to measure to the level of the roof deck. If he is right, then, as he says, the building is 10.7 m above natural ground, at its highest point – that is, on the side elevation of the building, where the natural ground line is lowest. On the Brighton Road elevation of the building, its height to the roof deck level would be 7 m.
However, it is difficult to accept that the roof deck is the appropriate place to choose, where there are no eaves. The outside edge of the metal roof sheeting would be more appropriate. First, it does represent the place where eaves would be, if the roof sheeting had been continued a little further over the lift rooms. Secondly, from the point of view of an onlooker, it is definitely part of the bulk of the building. The timber batten screen above the handrail is somewhat higher than the level of the edge of the roof, and that will also be seen as part of a relatively solid structure on the top level of the building. The height of the edge of the roof, at its highest point above natural ground level, is 10.5 m. The height of the timber batten screen, at its highest point, is about 12.4 m. The height of the “eaves” of the exposed rafters is, at its highest point, 12.5 m.
It was not suggested that the timber battens on the edge of the exposed rafters were significant. Rather, the two significant measurements are the 10.7 m adopted by Mr Knaggs, and the 10.5 m to the edge of the roof.
So, adopting 10.7 m as the highest point above natural ground, the building is 1.2 m too tall.
The expression “storey” is defined:
“A space within a building which is situated between one floor level and the floor level next above it and commencing at ground level, or if there is no floor level above, the ceiling or roof, above, but not a space that contains only;
·A lift shaft, stairway or meter room; or
·A bathroom, shower-room, laundry, water closet or other sanitary compartment; or
·A combination of the above.
For the purposes of this definition a mezzanine is a storey.”
The definition excludes structures below ground. Otherwise, it is to be interpreted as saying this, for present purposes:
“Storey: a space within a building which is situated between one floor level (commencing at ground level) and the floor level next above it. If there is no floor level above it, it is the space between a floor level and the ceiling or roof above it, within a building, between one floor level and the ceiling or roof above. It is not a space that contains only….”
Looked at from Brighton Road, the building appears to be two storeys. An onlooker below the building, looking back up towards Brighton Road, would see a three storey building, with a roof deck on a flat roof. Neighbours on each side of the building would see it as a three storey building with a rather unusual roof structure.
A1.3 requires a minimum site of 600 m2, and a minimum frontage of 17 m. This frontage is 14 m.
Therefore, overall, it can be seen that the design of the building pushes it beyond the permitted maximum GFA and maximum height allowed by the Acceptable Solutions. In its favour, the view from Brighton Street shows the building with an overall height of 11m. It does present in a three storey building and that is within A1.2. The land is 3 m narrower than the minimum 17 m. The building is three storeys high and not four, as the Council says, and it is 10.7 m high, rather than 14 m as the Council also says. Although the Council did not mention it, the frontage is 3 m less than the required width.
The outcomes sought by the DEO’s are meant to apply across the city. It can be kept in mind that the area around this land has a greater density than other low-medium density residential areas in the city. Also, this land is reasonably near a multi-purpose centre (Boundary Street to the west), and has public transport available in Hampstead Road, Boundary Street and Brighton Road.
As Mr Knaggs explained, this is a very established area, on a city fringe, as buildings that are on a slope. For that reason, the buildings did not impact on neighbours to the same extent as if they were on flat land.
He explained that there was an adjoining property, a heritage listed building, that was of a higher height than that described in the acceptable solutions. Generally, the buildings along Brighton Road were substantially more than the allowable height of 8.5 m in the acceptable solution. He observed that most of the multi-unit dwellings would be 9.5 m or so, or more. That evidence was confirmed by the inspection, which showed three and four storey multi-unit residential buildings in the locality.
Mr Kay, another planner who gave evidence, was of the opinion that the performance criteria had not been achieved, because the acceptable solutions had not been met.
It is true, as Mr Knaggs observed, and as Mr Ure submitted, that there were relatively large residential buildings in the vicinity. However, as the introduction to City Plan explains, a proposal that fails to comply with the performance criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impact. In my opinion, by a narrow margin, that is the case here – the proposal does fail to comply with the performance criteria, not just in insignificant details.
The Easements
The principal of Ardmore is Mr Otto Wilhelm. The presence of some easements over this land remains a practical obstacle to its construction. He asks for the approval to be extended for four years, so that he can overcome the problem with the easements, and put up the building.
Before Ardmore acquired this land, another company owned it, together with the adjoining land at the corner of Brighton Road and Franklin Street. The idea was that the two blocks of land would be developed in conjunction with each other. An aspect of that was a creation of easements over this land, for the benefit of the land on the corner. The dotted lines on the plan, exhibit 4, show the position of the easements.
The plan was that a swimming pool, barbeque and clothes drying areas would be constructed on this land. Indeed, they were constructed. The easements gave the proprietors of “Ardoch” the benefit of their use. However, that joint development was not completed. Ardmore owns this land, while the corner land is occupied by the home units, and their body corporate.
Ardmore arranged for the swimming pool to be demolished in May 2003.
That led to litigation in the Supreme Court. In January 2005, the body corporate for “Ardoch” filed an originating application in the Supreme Court, asking for an order to compel Ardmore to reinstate the swimming pool, barbeque and clothes drying facilities in the areas of the easements in favour of the body corporate.
Ardmore then retaliated, by commencing a Supreme Court action against the body corporate. The statement of claim asked for the extinguishment of those easements.
Matters have not progressed far in the Supreme Court. With respect to the originating application, the last activity on the court file took place soon after it commenced, on 28 February 2005. Ardmore’s action does not seem to have progressed beyond the filing of an amended statement of claim in May 2006.
Mr Wilhelm swore an affidavit, explaining in detail the events outlined above. In 2005, through a company which he was a director, he purchased a unit in the “Ardoch” units. No doubt he hoped to persuade the body corporate to agree to some acceptable terms, that would see the easements extinguished. However, he has run into difficulties because another unit owner, Mr Swan, does not agree with his plans. It seems that Mr Swan commands the vote of at least one other unit owner in the building.
It is clear, from some correspondence between them, and from Mr Swan’s evidence, that there is considerable animosity in their relationship. Mr Swan objects to this court granting an extension for the development approval. If the development application were publicly advertised, he says that he would make a submission, objecting to it. If necessary, he would appeal to this court against the development.
To return to the easements – Mr Swan says this:
“There are ongoing legal issues regarding the easements at 39 and 41 Brighton Road, and I believe that the relaxations requested will have a negative impact on the rights that accrue to the owners of the lots at 41 Brighton Road in relation to the easements.”
Mr Swan is a landlord, with practical experience in real property matters. He appears to be a substantial obstacle to Mr Willhelm’s plans.
There is no reason to doubt the pessimistic view which Mr Wilhelm expressed in his own affidavit:
“16I believe Mr Swan is frustrating negotiations to extinguish easements in order to obtain compensation to which the body corporate is not entitled if Ardmore constructs similar amenities on the common property of Ardoch.
17Unless easements (c), (d) and (e) are extinguished an apartment building in accordance with the town planning consent and approved building plans cannot be constructed. The existence of the easements impedes any reasonable use of 39 Brighton Road property.
18Ardmore and its predecessors have unsuccessfully sought the surrender of the easements since acquiring the land in 1994 and as a result have been unable to commence the development works as intended. A chronology of the attempts made by myself and my predecessors is exhibited. …
20The litigation in the Supreme Court has become stalled at the mediation stage. The body corporate of Ardoch has been unable to agree on the representative to attend on behalf of the body corporate and on the resolution which might be acceptable to the body corporate.
21I have recently given instructions to the appellant’s solicitors to instruct Council to advise on the steps to enable the body corporate to consider and approve a proposal along the lines of previous offers by the appellant to construct an entertainment and drying area for the use of the body corporate members in exchange for the surrender of easements (c), (d) and (e).
22I have remained ready, willing and able to commence the development works but for the reasons stated above have been unable to proceed. In the circumstances I believe it is a reasonable request that the extension be granted.
23I seek an extension period of four years in which to resolve the Supreme Court proceedings. … This extension should also allow sufficient time to construct the apartments and commence the use.”
Mr Wilhelm explained in his evidence that no mediator had been appointed.
Likely Objections
Apart from Mr Swan, it seems that there are others who would take an interest and make an objection if this proposal were to be notified again.
Mr F M Proctor owns the property on the eastern side of this land. It is the large, rambling, old, wooden building presently used for multi-unit accommodation. It is heritage listed, being built in 1889. Mr Proctor objects to a modern block of units next door to his building, as he believes that a colonial style residential house would be much more suitable. If the proposal were advertised again, he says that he would certainly be an objector. He did not own his property when the approval was originally granted. He says he will appeal to this court, if necessary.
Ms Blackwell and Mr Lindsey Smith live across the road, at 40 Brighton Road. They live in units in that building. Both of them say that they would object to this proposal, if it were publicly advertised. They are concerned about the height of the proposed building, and its character.
Ms Johnston, of the Brisbane City Legal Practice, has done a search to show the changes of ownership of nearby properties since 1990. Apart from the above individuals, already mentioned, there have been other changes. In what seem to be three houses, ownership has changed since 1990. 40 Brighton Road (where Ms Blackwell and Mr Lindsey Smith live) has seen changes of ownership of eight units since 1990.
The “Ardoch” units, at 41 Brighton Road have seen seven units change hands since 1990.
Overall, taking into account the changes of ownership, and varying personal views about the merits of this development, it can been seen that it is likely that several people will object to it, if able to do so, and that a larger number may do so.
Changes to City Plan
Because this is re-hearing, it is necessary for the court to consider this proposed development in the context of the planning provisions which apply at the present time. That is, the current provisions of the West End-Woolloongabba District Local Plan have been discussed, above.
Both counsel made reference to the planning provisions which applied at the time when the application to extend the approval was filed. That was June 2006. The present local plan did not come into effect until September 2006. At the time of the application, the South Brisbane local plan applied.
It was submitted for Ardmore that this proposal complied with that local plan. On the other hand, it was submitted for the Council that Mr Kay’s opinion should be adopted, particularly in relation to the bulk of the building. He identified the influential provision as performance criteria P1, at p 247 – “buildings and structures must not overshadow or physically dominate surrounding land uses and structures”. In his report, he was of the opinion that the Acceptable Solutions had not been met, to the extent that the performance criteria were not satisfied.
The acceptable solutions are not satisfied. Three storeys might be permitted, with a height 9.5 m to the underside of the ceiling of any habitable room. This building exceeds that by about 1 m. In his favour are the four bulleted points – the site is close to a shopping area, the scale of adjoining development is comparable, the topography ensures that its height to Brighton Road is not excessive. However, its character is not necessarily appropriate in the area.
Therefore, if it be important, it should be accepted the building did not comply with the requirements of the local plan in 2006. Mr Kay’s opinion should be accepted.
Consistency
“Consistency” is mentioned in s 3.5.23, set out above. This court must have regard to it.
It is helpful to look at the Explanatory Notes to s 3.5.23(1), when this legislation was introduced into Parliament in 2006. They say this:
“● The consistency of the approval with current laws and policies, and with any infrastructure contributions or charges currently payable. The older a development approval becomes, the less it is likely to conform with current community expectations, reflected in the relevant laws and policies applying for assessment of such development. Equally, infrastructure contributions or charges previously payable may not reflect the scope or quantum of charges now payable;
●The community’s current awareness of the development approval. In some localities, population changes may mean that a significant proportion of the current community may not originally have had an opportunity to comment or make submissions about the development, and may be unaware of the development and its likely impact on its neighbourhood. This is particularly important if the development was at the time of approval, or has become inconsistent with the relevant planning scheme and other laws and policies;
●Whether if the request was refused, the community would acquire further rights to make submissions about the development, and the extent to which those rights might be exercised. This criteria is closely related to the previous point, as it may be more likely that the community would exercise available rights to make a submission if a significant proportion of the current community did not live in the area when the original application was considered and consequently did not previously exercise rights to make a submission;
….
Here, the last advertisement to the public goes back to 1989. Council’s first approval was early 1990. In that time, it is not surprising that the evidence here shows that there has been a good deal of change in the local population. There are now people living nearby who did not originally have an opportunity to comment or make a submission about the development. Brisbane is a city where there has been much building activity, over the last 20 years. The opinions of local residents may have changed, in any case.
10 Conclusions
There are two factors which are the most important. Nineteen years has passed since the last notification of this proposed development to members of the public. There have been a good many changes of ownership of properties in the surrounding area. For that reason, and because several people here say that they will oppose this development, if they have a chance to do so, it should be accepted that the time has come for it to be notified again to members of the public. Regard must be paid to the community’s current awareness of the development approval, and the likely extent to which the right to object may be exercised. The approach in the Act, as explained in the Explanatory Notes, should be followed.
The previous approval is now not entirely consistent with the “current laws and policies” which apply to the development. Taking those matters into account, it is clear enough that the Council was correct in refusing to extend this approval. That is the appropriate conclusion, apart from any inconsistency with the current planning provision. It should be made clear, that the passing of time, the changes of ownership of nearby properties, and the real prospect of objections at the present time, make it appropriate to refuse this application, in any case.
The appeal is dismissed.
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