Badcock Builders P/L v Brisbane City Council

[2001] QPEC 43

PLANNING AND ENVIRONMENT

COURT OF QUEENSLAND

CITATION:	Badcock Builders Pty Ltd & Anor v Brisbane City Council [2001] QPE 043
PARTIES:	R & L BADCOCK BUILDERS PTY LTD AND WRIGHT INVESTMENT GROUP PTY LTD Appellant v BRISBANE CITY COUNCIL Respondent
FILE NO/S:	5021 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Applicant appeal
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	25 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	17, 18, 19, 20, 30 April, 1, 2 May 2001
JUDGE:	Judge Robin QC
ORDER:	Appeal allowed.
CATCHWORDS:	Integrated Planning Act 1997 s 4.1.52, s 6.1.30 - developer’s appeal against deemed refusal of application to construct 2 large apartment buildings on land adjacent to railway line with a height and creating density appropriate to Residential B RDA R6 or R7 (amalgamated as High Density Residential Area under City Plan 2000) incompatible with the site’s designation R3 (Low-Medium Density Residential Area under City Plan) – Council’s internal planners supported development, heritage and landscape architects did not – Council apparently willing to approve proposal in return for a large monetary contribution – its attitude appeared to be influenced by a pending compensation dispute with a previous owner of the site consequent upon a resumption – issues included whether “desirable views” would be offered to justify high density high rise residential accommodation, impacts on amenity of surrounding parklands and private land attributable to the size of the proposed buildings – no submissions received – appeal allowed.
Canine Caterers Pty Ltd v Torres Shire Council 33 LGRA182, 188; Sheezel v Noosa Shire Council (1980) QPLR 130, 134; Brazier v Brisbane City Council 26 LGRA 322, 327; Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209, 211; Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335, 339; Bullock v Hervey Bay Town Council (1983) QPLR 98 and Holts Hill Quarries Pty Ltd v Gold Coast City Council (2000) QCA 268.
COUNSEL:	S. Ure for the Appellants P. Lyons QC for the Respondent
SOLICITORS:	King & Co. for the Appellants Brisbane City Legal Practice for the Respondent

Nature of the Proceedings

1. This is an appeal against the Council’s “deemed refusal” of the appellants’ IDAS

   development application submitted on 26 July 2000 being:

   “A refusal that is taken to have happened if a decision is not made –

(a) for a development application – by the end of the decision making period.”

(See the definition in Schedule 10 of the Integrated Planning Act 1997.) The

application, made while the 1987 town planning scheme was in force, was for a

Development Permit for a Material Change of Use and preliminary approval for

building work for an apartment building comprising two ten-storey towers

incorporating 104 dwelling units. Section 6.1.30 of the IPA refers the court back to

the repealed provisions of the Local Government (Planning and Environment) Act

1990 applicable to a rezoning application; section 4.1.52 was said to be enlivened

as a “Coty principle type section”, given the coming into force of City Plan 2000 on

1st October 2000. See Coty (England) Pty Ltd v Sydney City Council (1957) LGRA

117. The Council gave an acknowledgement notice on 8th August 2000 nominating

Mr Pritchard as assessment manager, but no referral agencies.

The Subject Land and its Surrounds

1. The subject land is an amalgamation of a number of separate parcels constituting

   the northern two-thirds or thereabouts of the narrow strip of private land lying

   between 8-20 Land Street and its continuation as 26-32 Patrick Lane and the

   railway line to the west. The site has only the depth of an ordinary residential block

   and in the north tapers to a sliver on which it would be impractical to construct

   anything. The site is at 8-32 Land Street, Toowong, described as Lot 2 on RP

   123839 and Lots 1-7 on SP 115659 Parish of Enoggera, County of Stanley; the area

   is 8075 square metres. The zoning is, like that of the residential lots to the south

   (according to a number of maps and plans 3 facing Land Street, 3 facing Sylvan

   Road) which complete the block, Residential B. All land in the block on the

   western side of Land Street comes within the Residential Development Area R3

   designation and under the new City Plan the Low-Medium Density Residential

   Designation. The effect is to permit only low rise residential development.

2. By contrast, the land east of Land Street, both north and south of the eastern sector

   of Patrick Lane running to Coronation Drive, is Residential B but with an RDA R6

   designation for high intensity, high rise development for purposes of the Town

   Plan; it is designated High Density under City Plan. This permits ten residential

   storeys above a carpark. South of Patrick Lane, such development has already

   occurred at 16 Patrick Lane, on the corner with Land Street, and at the Regent,

   located on Coronation Drive. There was consensus during the hearing of the appeal

   that pursuant to a development application (Exhibit 15) a high density mixed high

   rise and low rise development containing two towers (one closer to Coronation Drive, one closer to Land Street) is likely to occur, and that high rise development

   should also be anticipated in the block north of Patrick Lane.

3. So far as construction is concerned, the two blocks described may be regarded as

   dominated by the blue Toowong Centre tower constructed over Toowong Railway

   Station to the south and the Wesley Hospital, the massive effect of which owes

   much to its elevated site, to the north. The height of the hospital, which extends in

   the west right to the railway reserve, exceeds anything developed or proposed east

   of the railway line.

4. An inspection included viewing the site from the Toowong Tower, which was

   effective to demonstrate that high rise construction west of Land Street to the

   railway line might be regarded as “in-fill” across a small area to an obvious

   boundary.

5. Immediately to the south of the site is a residential allotment accommodating a

   single residence. The same applied until very recently to the next two lots moving

   south along Land Street, where redevelopment as low rise residential (town houses

   of two storeys over a garage level) has been approved by the Council. This

   approved development relates to “Numbers 2 and 4”. For the moment, the

   properties facing Sylvan Road may be regarded as zoned low rise residential.

   Across Sylvan Road in the block dominated by the Regatta Hotel, the present land

   use may be characterized as low rise light industry. Exhibit 16 shows what is

   proposed for a Local Plan for the relevant part of Toowong which is presently with

   the Governor-in-Council. The block south of Sylvan Road, assuming this proceeds,

   will be re-classified Major Centre (MP2) (Four Storeys); intensive development, likely to be commercial, can be anticipated. The “four storeys” permitted are likely

   to be taller than the same number of storeys of residential development. (It is noted

   that the values of the Regatta Hotel are proposed to be protected by a limit of two

   storeys affecting adjacent properties.) In the next block to the south, from

   Landsborough Terrace south to Booth Street, it seems that there will be a re-

   classification to Major Centre (MP2) (Four Storeys) along Coronation Drive, and

   then, west to the railway, re-classification from Low Medium Density Residential

   to Medium Density Residential, which counsel accepted represented five storeys of

   residential development.

6. Considering what is or is likely to be the pattern of development east of the railway,

   it may seem odd to encounter west of Land Street a small pocket of low rise

   residential development, representing the only relief from much more intensive

   surrounding development. The appeal cannot be resolved as if the Court, rather

   than the local government, were the planning authority. See Holts Hill Quarries

   Pty Ltd v Gold Coast City Council (2000) QCA 268 para 41 ff, also Canine

   Caterers Pty Ltd v Torres Shire Council 33 LGRA 182, 188; Sheezel v Noosa Shire

   Council (1980) QPLR 130, 134; Brazier v Brisbane City Council 26 LGRA 322,

   327; Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209,

   211; Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998)

   QPELR 335, 339; Bullock v Hervey Bay Town Council (1983) QPLR 98; and

   Vynotas Pty Ltd v. Brisbane City Council (2001) QPELR 15, 39.

   Outline of the Council’s Case against the Proposal

7. Mr Lyons QC summarized the Council’s arguments that the application and appeal

   should be refused as follows:

“(a)	the planning intent which emerges from the Brisbane Town Plan 1987 and from City Plan 2000 is that the site, and land on its eastern side of Land Street at Toowong, is intended for low rise development;
(b)	this planning intent is quite specific, and is not lightly to be ignored;
(c)	the designation of the land as Residential Development Area (“RDA” R3) reflects a planning approach taken by the Council as Planning Authority, generally to restrict high density residential development; and in this part of the City, to limit high density residential development to land immediately adjacent to the river, with lower density residential development intended for the land behind land intended for high density residential development;
(d)	the proposal is in clear conflict with the planning intent for land on the eastern side of Land Street;
(e)	it would be inappropriate for the Court to substitute planning strategies which might seem more appealing, for those which a planning authority has adopted in its planning scheme;
(f)	it would be inappropriate for the Court to deal with this application in a way which might be seen as determinative of some wider question;
(g)	the proposed development has unacceptable amenity impacts, which are contrary to the intentions of the planning scheme.”

He submitted that the proposal (a fortiori when its amenity impacts are examined)

must be rejected as in conflict with the site’s zoning, citing Holts Hill Quarries Pty

Ltd v Gold Coast City Council (1999) QPELR 415 (affirmed on appeal, supra) and

Residential Developments Australia Pty Ltd v Brisbane City Council (1990) QPLR

121, especially at 124. It was said the framers of the Town Plan and of the City

Plan should be taken as having considered and rejected including land west of

Land Street in an area designated for high rise residential development. Such

cases, it was said, disposed of the appellants’ contention that their application ought to be treated as one for rezoning. Mr Ure had little difficulty locating

authorities exhibiting a different approach: Intrafield Pty Ltd v Redland Shire

Council (2000) QPELR 337, 342 and Fitzgibbons Hotel Pty Ltd v Logan City

Council (1997) QPELR 208, 210. A rezoning of the traditional kind, or, in the

modern era, a “notional rezoning” may be allowed more readily if there is some

appropriate intimation qualifying the identified Intent of the zone in planning

documents. There is such an intimation in s.3.3.2.1 of the Statement of Intent for

Urban Areas:

“Housing at densities greater than those of detached housing will be located on appropriately zoned land, close to significant transit nodes (railway stations, busway stations, ferry terminals, and city express bus stops), in and around the Central City and other centres and near institutions with large numbers of clients, employees or students.

Amendments to the Town Plan to allow housing at densities higher than is currently allowed will only be considered for approval where the sites meet the criteria described above and where the impacts of development are to be adequately mitigated. Effective consultation with affected residents and landowners will be crucial in identifying these impacts and appropriate mans of mitigation.”

(1987 Town Planning Scheme).

Planning Provisions Relied on by Council

1. The Town Plan provided, in respect of the Residential B Zone:

   “7.3.1 Intent

   Land in the ‘Residential B’ Zone is intended to provide for a variety of residential uses ranging from a relatively low intensity to a quite high intensity. This zone includes the only land in the residential zones where apartment buildings are allowed …

   The ‘Residential B’ Zone is divided into a number of Residential Development Areas from RDA R2 to RDA R7. Each RDA determines the intensity of development allowed in that part of the ‘Residential B’ Zone. To ensure that an adequate level of amenity is achieved, permissible building type, site cover and site area is prescribed for each RDA.

   Residential Development Area R2

   ...
   Residential Development Area R3

   In Residential Development Area R3 any duplex house or attached house complying with the requirements of RDA R2 or RDA R3 will be allowed without requiring the consent of Council. Such development will require a site of not less than 600 square metres with a frontage of 20 metres or more. The height of the building will be limited to no more than two storeys. An acceptable height for such a two storey building is considered to be no more than 8.5 metres. This will minimize any overshadowing of adjacent housing.

   …

   Residential Development Area R4A

   …

   Residential Development Area R4

   …

   Residential Development Area R5

   …

   Residential Development Area R6

   …

   The Residential Development Area R6 is intended to facilitate and encourage the development of high-rise apartment buildings. It is intended to consolidate high-rise development areas in appropriate locations. This will avoid the undesirable effects of a dispersion of high-rise apartments amongst lower scale forms of development.

   The land included in an RDA R6 generally has the benefits of desirable views and aspect. It is also usually near to the City centre or major suburban centres. These areas are recognized as being suitable for higher density due to the limited supply of such land and the relatively high demand. Due to the impact which high- residential buildings have on the surrounding area there is generally an expectation that high-rise residential buildings will not be erected in areas intended for low-rise development.

   There is, however, an expectation that in higher density areas, high- rise apartment buildings will predominate. Residents moving to such areas could generally anticipate that this form of development will continue to occur in the future. Accordingly, no height limit has been placed on residential buildings in an RDA R6. Particular attention will however, need to be given to environmental and amenity matters such as sun penetration, shadowing, air circulation, views, aspects and traffic generation for the benefit of existing and future residents.

   Residential Development Area R7

   …

   The Residential Development Area R7 is intended to facilitate and encourage the development of high rise residential buildings at a high density in selected locations. The land included in an RDA R7 is very limited in area. It has extensive and particularly desirable views and aspect. It has easy access to the City centre. It is intended to consolidate such high density development in locations where such development is consistent with resident expectations. No height limit has been placed on residential buildings in an RDA R7. Particular attention will, however, need to be given to environmental matters such as sun penetration, shadowing, air circulation, views, aspect, and traffic generation for the benefit of existing and future residents.”

2. The Council presented evidence from no planning officer of its own, but relied on

   evidence of an outside planning consultant, Mr Butler. He provided a helpful table

   at Page 16 of his report (Exhibit 9) assessing the appellants’ proposal against

   relevant designations:

RDA R3 RDA R6 RDA R7

Minimum	600m2	800m2	800m2
Site Area	complies	complies	complies

Minimum 20 metres 30 metres 40 metres

Frontage	complies	complies	complies
Maximum	Site Area x	Site Area x	Site Area x
Gross Floor	0.45	1.25	1.75
Area	(3633m2)	(10,093m2)	(14,131m2)
Exceeds	Exceeds	complies
Max.	Max.
(12,095m2)	(12,095m2)
Maximum	40%	No Provision	No Provision
Site Cover	(3230m2) complies (1567m2)

Minimum 2.5 metres 3m or half 3m or half

Site Cover	complies	height	height
complies	complies
Minimum	2.5 metres	3m or half	3m or half
Side	complies	height	height
Boundary	complies	complies
Clearance
Minimum	6 metres	6 metres	6 metres
Rear	complies	complies	complies
Boundary
Clearance

Minimum 6 metres 6 metres 6 metres

Setback from	Does not	complies	Does	not
Road	comply	comply.	(3
Frontage	(3 metres)	metres)

Maximum	2 storeys/8.5	No Provision	No Provision
Height	metres
above	Exceeds

Ground	Max.	(11
Level	storeys)

1. So far as maximum gross floor area is concerned, any debate as to whether R6 or

   R7 is appropriate has been rendered academic by the effective amalgamation of

   those two categories in the new City Plan as High Density Residential Area,

   averaging out the former multipliers as 1.5. In respect of setback from the road

   frontage, the non-compliance arises because for much of its length the “basement”

   carpark will be more than one metre out of the ground. At a couple of points,

   corners of the wall will actually touch the boundary with a height of something in excess of three metres. This non-compliance may be subject to relaxation, in which

   regard it may be noted that the side boundary clearances proposed are vastly in

   excess of the minima required. Another respect in which relaxation may be

   necessary concerns the maximum height at the northern end of the northern tower

   which, because natural ground level falls away at this point, will be marginally in

   excess of what would be permitted in the absence of a specific relaxation. I would

   see no problem in permitting such relaxation if the project survives the Council’s

   attack on the general height of the towers.

2. The Council, principally through Mr Butler, mounted a case that the proposal did

   not satisfy the criteria for RDA R6 or RDA R7. As to R6, apart from the excess of

   gross floor area, Mr Butler contended that this was not “an appropriate location”

   because a change to R6 “would be an isolated occurrence at this location”

   inconsistent with “the reasonable expectations of other landowners in the area”.

   The proposal would in fact dominate the block in which it is located. Mr Butler’s

   concern for other landowners, in particular the owners of numbers 2 and 4 (who had

   not begun construction when the appeal came on and are free to reconsider their

   options) has limited weight in the circumstances, given that the proposal attracted

   no objectors or submitters. A related point is Mr Butler’s claim that the project

   would involve “the undesirable effects of a dispersion of high-rise apartments

   against lower scale forms of development.” Such dispersion already characterizes

   the locality, without any ill-effects. It seems that such a mixed character will before

   long account for the large area bounded by Land Street, Sylvan Road and

   Coronation Drive south of the Regent.

3. Mr Butler contended the project lacked “the benefits of desirable views and

   aspects.” In this regard he may have misconstrued a passage from one of the

   appellants’ reports submitted to Council. The evidence establishes that, as a

   generalization, the apartments proposed will have desirable views and aspects.

   Next it was claimed there would be in the surrounding area frustration of “an

   expectation that high-rise residential buildings will not be erected in areas intended

   for low-rise development.” The absence of submissions tends to show the absence

   in any quarter of such an expectation. The explanation may be that expectations

   held were based less on planning documents than on the development that could be

   observed taking place east of Land Street. Mr Butler’s point regarding disappointed

   expectations of “residents moving to (higher density) areas” may be intended to

   protect people moving in east of Land Street to existing or future high density-high

   rise accommodation. The point may be that they would not expect their amenity to

   be impacted by high rise development west of Land Street. Again, the lack of

   submissions leaves the Court not sharing Mr Butler’s concern. He was content to

   leave to others assessment of “environmental and amenity matters such as sun

   penetration, shadowing, air circulation, views, aspects and traffic generation for the

   benefit of existing and future residents.” Such topics were the subject of evidence,

   in only minor respects conflicting, and not in my view counting against the

   proposal.

1. Mr Butler’s opinion was that the project was not consistent with the RDA R7 intent,

   any more than with R6. Necessarily, there was some repetition of his arguments.

   Mr Butler referred to the warning in the intent that land included in R7 is “very

   limited in area”, as strongly suggestive there should be no extension without

significant justification. The requirement that apartments offer “extensive and
particularly desirable views and aspect”, it was said, could not be met. As already

indicated, I accept the evidence to contrary effect. I do not share the doubts

suggested as to the site’s having “easy access to the City Centre.” Mr Butler noted

the intention to “consolidate such high density development in locations where such

development is consistent with resident expectations”, continuing:

“As discussed above, there is no high-rise development to consolidate in the area bounded by Sylvan Road, Land Street, Patrick Lane and the railway. A low-rise development consistent with the prevailing RDA R3 has been recently approved, which demonstrates that high-density development on the subject site would not be the expectation of existing and future residents of the area. To propose to change the subject site to RDA R7 would create an abrupt change of density from low to very high and would not be consistent with this intent for an RDA R7.”

I do not agree with Mr Butler’s narrow focus on the confined area he identifies.

Even so, there is no evidence of what the expectations have been, apart from what

one may take from the lack of submissions. The examination above of the likely

future of the wider area east of the railway line extending south of Sylvan Road

suggests to my mind that development in accordance with RDA R3 would have an

appearance of surprising under-development. It is not as if what exists at present

resembles R3. The site presently accommodates an old two-storey brick building

once occupied by the St Columban’s Mission Property Association, and

subsequently owned by the State Government. The premises have not been used

for some years, the site being left vacant. The development application advised the

building was in a bad state of disrepair with signs of occupation by vagrants, also

severely vandalised with graffiti plastered all over the internal and external walls.

Some 2,004 square metres was noted to have been resumed from the frontage of the

site as part of the Coronation Drive Bus Lane Project. On Lot 2 on RP 123839,

which constitutes the southern part of the site, there is an undistinguished detached house. Nothing in the Council’s case is persuasive of a conflict with the R6 or R7

designations or with the new HR-High Density Residential Area in the City Plan.

On the contrary, the appellants’ evidence, which it seems unnecessary to go to in

detail, is persuasive that the proposal is consistent with the intent of the notional

new zone.

Should there be a Notional Rezoning of the Site?

1. It by no means follows that the application should be successful. The appellants

   bear the onus of showing that it should succeed, meaning, in effect, that they must

   show sound planning reasons exist for their development application being

   approved notwithstanding conflict with the intent of the longstanding

   Residential B designation and within it the Residential Development Area R3

   designation and, subsequently, assuming assessment under the new City Plan 2000,

   inconsistency with the provisions applicable in the Low Medium Density

   Residential Area. In that regard, it is necessary to do no more than refer to

   Performance Criteria P1 – Development size and bulk must be consistent with the

   low to medium density of the locality, Acceptable Solution A1.1 requiring that

   Gross Floor Area be no more than 0.6 times the site area (where the site fronts an

   arterial route) and Acceptable Solution A1.2 requiring that building height at any

   point be no more than 9.5 metres above ground level to the underside of eaves and

   three storeys (where the site fronts an arterial route).

   Appearance of the Proposed Development

2. Adapting Mr Lyons’ description, the development proposed consists of two towers,

   each of 52 residential units. Each is ten storeys in height above a podium

   constructed over the site, the podium being a single level car park structure above

   which both towers are constructed. Each tower is some 68 metres long and 18

   metres wide at the maximum at its centre where lift and stairwells and services will

   be located, tapering down to a width of nine metres at each end. Amendments to

   the application have the effect that the shoulders of each tower will step down a

   couple of floors from the high central section. Each tower is a curved “lazy S”,

   structure the alignment of which trends away from Land Street. There is an effect

   of the southern tower facing Land Street, the northern tower facing Patrick Lane.

   Although they are off-set, the gap between them will not be visible from areas

   within the north-eastern and south-western quadrants. (I do not accept claims that

   an observer would conclude there was a single larger building.) At the northern end

   of the northern tower and at the southern end of the southern tower, provision is

   made for vehicle manoeuvring areas, carpark entry, visitor parking, and garbage

   collection facilities. The appellants propose to retain some of the existing trees, and

   to provide landscaping, including jacarandas on the Land Street frontage,

   landscaping on the podium and also between the podium and the rear boundary of

   the site along the railway. Roughly in the centre of the site crossing it from east to

   west is the highest part (presently occupied by the derelict building) – a

   continuation of a knoll which dominates Toowong Memorial Park to the west

   where it is surmounted by a tall column memorial to those who served in the Great

   War. The railway cutting, up to 38 metres wide, has destroyed the integrity of the

   knoll, substantially weakening the argument for its retention as a natural land form. The top of the podium will be roughly at the top of that part of the knoll which

   remains on the site (substantially lower than the knoll remaining in the park); the

   platform on which the towers stand will have the appearance of balancing on the

   knoll. This arrangement has the advantage that accesses to the carpark, north and

   south, from Patrick Lane and Land Street respectively, will be at natural ground

   level. It also has the effect that for much of its length the “basement” will be almost

   wholly above ground level. Landscaping above it and (for the most part) in front of

   it will be elevated well above Land Street and, except for those on the other side, of

   limited benefit to users of the street. The proposed landscaping, other than that on

   the podium itself, came under justified criticism from Mr Rousseaux, a most

   impressive witness, for being nothing more than “curtain” landscaping, without

   depth. His experience over the years of one body corporate after another

   abandoning important elements of landscaping agreed to by developers, particularly

   important elements such as larger trees, has caused him to be fearful of what the

   future might hold here; it comes on top of his misgivings as to the adequacy of the

   three-metre strip which will accommodate the jacarandas and as to the likely

   efficacy of attempts to retain existing large trees both on and off the site in good

   health if the development proceeds. I consider this appeal should be approached on

   the basis that the developers will honour their agreements, and that there is no

   demonstrated risk of the body corporate(s) undercutting the intended public

   benefits. I would add that if Mr Rousseaux were able to adduce definite evidence

   of such a risk (perhaps statistical or survey evidence based on what has happened in

   past developments) in a future appeal, there might be a good case for the court’s

   acting with appropriate caution in light of such evidence.

3. The exposed wall of the carpark, especially rounding the corner from Land Street

   into Patrick Lane and beyond, created particular consternation from its being

   coloured bright yellow in early photo mock-ups of the proposal. The appellants

   have now made a commitment to ensure that the exposed wall has a Mt Cootha

   bluestone facing so that it will harmonise with the existing bluestone wall on the

   Land Street frontage of the site where the higher part of it indeed, more of the knoll

   - has been cut off to accommodate construction of Land Street. Any lack of

   enthusiasm for bluestone walls must be ignored in deference to the general esteem

   in which they are held, especially in this general area, where they are proliferating;

   they may be observed in Sylvan Road, at a number of points along Coronation

   Drive and on both sides of Land Street. The proposed one will not be the only

   instance of “double” bluestone walls, in the sense of one standing behind another.

   Cascading greenery was said to be the answer, should the unrelieved bulk of the

   bluestone facing now promised be judged unacceptable.

4. This case is out of the ordinary, in my experience, in the extent to which it appears

   to call for aesthetic judgments; it is unsurprising that the experts in architecture and

   landscape architecture who gave evidence for the parties, likewise expert town

   planners, espoused quite different assessments. There is no reason to doubt the

   genuineness of them. It is for the Court to be the arbiter in these matters, never

   forgetting that it is the appellants who bear the onus of proving their development

   application should succeed.

   Resolved Issues

5. During the currency of the appeal some issues disappeared, in the sense of being

   “resolved” by the parties and/or their experts. I was told these included traffic and

   noise issues. Mr Rousseaux indicated that the “resolution” of the former gave rise

   to additional concerns from his standpoint as a landscape architect, particularly for

   retention of existing trees.

6. Noise concerns relate to the amenity of future residents on the site, which is under

   obvious potential challenge from vehicular traffic in Land Street and rail traffic on

   the other side. The Court has Mr Rumble’s report suggesting that acceptable

   solutions are available and has been urged by the parties not to embark on any

   assessment of its own. I was dissuaded from getting into noise or traffic-related

   issues.

   The Council’s Statement of the Issues

7. The parties undertook at the conclusion of the appeal to provide (to become Exhibit

   32) an up to date list of disputed issues. It is convenient to set out what was

   supplied:

   “The Council is opposed to the approval of the proposed development in its present form as the proposal is contrary to the following provisions of the Transitional Planning Scheme:

·	Section 3.2.4.1(a) of the Strategic Plan, which requires development to maintain and enhance scenic and visual amenity through maintaining, enhancing and expanding the existing system of publicly owned land,
· Section 3.2.4.1(c)of the Strategic Plan, which requires development to maintain and enhance scenic and visual

amenity through ensuring development complements the

character and style of the City,

·

Section 3.2.4.1(d) of the Strategic Plan, which requires development to maintain and enhance scenic and visual amenity through ensuring development complements the character and style of the surrounding area;

· Section 3.2.4.1(i) of the Strategic Plan, which requires development to maintain and enhance scenic and visual amenity through ensuring development complements the character and style of the surrounding area; · Section 3.2.4.1(j) of the Strategic Plan, which requires development to maintain and enhance scenic and amenity through ensuring the physical separation of visually incompatible land uses; · Section 3.2.4.2(a) of the Strategic Plan, which seeks to ensure compatible development is integrated with, and not separated from, existing surrounding development; · Section 3.2.4.2(g) of the Strategic Plan, which seeks to encourage urban areas, centres and facilities to be designed at a human scale; · Section 3.2.4.3(d) of the Strategic Plan, which seeks to ensure that development does not detract from the heritage value of places with heritage significance, · Section 3.3.2.2(d) of the Strategic Plan, which requires that development will be required to respect and be compatible with the character of the neighbourhood in which it is located, particularly in developed areas; · Section 7.1.1 of the Aims and Objectives for the Residential Zones, which requires that development promote a high standard of visual amenity in residential areas by giving particular attention to the existing and future amenity of areas where residential development is carried out; · Section 7.1.2 of the Aims and Objectives for the Residential Zones, which requires good quality design to ensure that

building bulk and size, orientation of walls, balconies and windows, roof configuration, on-site services and car parking result in a positive contribution to the character of the neighbourhood and the streetscape;

· Section 7.1.4 of the Aims and Objectives for the Residential Zones, which provides for the appropriate redevelopment of land in the ‘Residential B; Zone by the provision of appropriate allocations of floor space in relation to site size to facilitate high-rise apartment buildings; and by the provision of appropriate standards to protect the amenity of residential areas;

· Table 7.3.3 of the Residential B Zone, which indicates that an Apartment Building is a Column 4 use where the site is in a residential development area R2 or R3;

Particulars of the above are as follows:

1.          The proposal does not maintain, enhance nor expand the qualities of vegetated open space in the vicinity of the site. The proposal does not enhance the landscape features of the Toowong Memorial Park nor Moorlands Park, since the proposed ten storey buildings will significantly impact on the views and setting of both parks due to the design strategy to provide long ‘wall-like’ buildings, with blank elevations formed by the back of the servicing areas on each floor.

2.          The form of the particular building is unacceptable. The high-rise towers have little integration with their context, their urban design role as transitorial in scale is not acceptably resolved, and their bulk and scale will have visual impacts on the surrounding parklands. The proposed building is bulky and lacks articulation, especially when viewed from Toowong Memorial Park.

3.          The design of the proposed building does not reflect the subtropical nature of Brisbane with large, unshaded walls to the west, little use of lightweight edges and little opportunity for cross-ventilation. It does not complement other residential development in the locality. The buildings do not address the street but a distant view to the river.

4.          The proposal is not considered to complement the character and style of the City. The subtropical character of the City requires development to have a regard to issues such as climate and lifestyle. Buildings which respond to the subtropical character are those that incorporate an appropriate climatic response to the micro-climate both within and around a development.

5.          The site does not allow for appropriate landscaping, in particular there is insufficient room for deep planting zones for mature trees that would visually screen the development from Toowong Memorial Park.

6.          The proposal is well in excess of the density allowed in this Residential area.

The provisions of the Brisbane City Plan 2000 place the site in a Low-medium Density Residential Area, which is intended to contain a mix of houses and multi-unit dwellings predominantly of no more than 2 storeys. Higher densities and 3 storey buildings may be accommodated in close proximity to public transport and services.

Development of a multi-unit building is to have a gross floor area not exceeding 0.6 times the site area and a height not exceeding 9.5 metres above ground level to the underside of eaves and 3 storeys, when fronting an arterial road.

In respect of the Brisbane City Plan 2000’s Citywide Desired environmental Outcomes of the Strategic Plan, the proposed development is contrary to:

.	Section 3.2.2.4 which aims to protect and enhance the scenic landscape and promote the City’s unique subtropical character through sympathetic development – buildings, structures and landscaping that complement the surrounding character and style;
.	Section 3.3.2.2 which requires development to enhance the amenity, environmental and cultural contexts of its locality through urban areas, centres and facilities designed to a human scale;
.	Sections 5.4.1 which indicates that the Low-medium Density Residential Area will contain a mix of houses up to 2 storeys and two and three storey multi-unit dwellings with a strict adherence to a maximum gross floor area of 50% or 60% if in close proximity of public transport or on arterial roads;

For reasons particularised in paragraphs 1-6

In respect of Chapter 5 Codes and Related Provisions of the Brisbane City Plan 2000, the proposed development is contrary to the following Performance Criteria and associated Acceptable Solutions of the Residential Design Low – Medium Density Code:

.	P1 – A1.1 requires that Gross Floor Area is no more than 0.6 times the site area where the site fronts an arterial route;
.	P1 – A1.2 requires that building height at any point is no more than 9.5m above ground level to the underside of eaves and 3 storeys where the site fronts an arterial route;
.	P1 A1.1 requires that the building bulk is reduced by a combination of verandahs, recesses, variation in materials, colours, and/or textures including between levels and variation in building form;
.	P1 – A1.2 requires that roofs include pitches, gables or skillions;
.	P17 – A17.2 requires that vehicle parking structures are designed and located behind the building setback, or behind or below the building so they are not visually dominant from a public street;

for reasons particularised in paragraphs 1-6

In respect of Volume 2 Appendix 2 of the Brisbane City Plan 2000, the proposed development is contrary to the Transport, Access, Parking and Servicing Planning Scheme

Policy for reasons particularised in paragraph 2.”

Exhibit 32 also included the Council’s letter of 26 March 2001 to the appellants’

solicitors (amended 3 May 2001) offering some further and better particulars:

“1.

The proposal in its present form in contrary to s3.2.4(j) of the Strategic Plan which requires development to maintain and enhance the visual and scenic amenity through ensuring the physical separation of visually incompatible land uses.

The proposal is visually incompatible with the landscape and cultural heritage values of the Toowong Memorial Park. It does not provide for an appropriate setback along the western boundary of the site for the provision of deep planting zones, where trees may mature to 12.0 metres high, and thereby screen the proposal from the park. The western extent of the carpark and the battered bank adjacent to the railway line do not provide optimal conditions for the provision of adequate a vegetation screening.

3.(sic) The proposal in its present form is contrary to s.3.2.4.2(a) of the Strategic Plan which seeks to ensure compatible development is integrated with, and not separated from, existing surrounding development.

The proposal is not considered to provide an acceptable integration of building form and fabric with its locality, in particular in that the buildings do not address the street but a distant view to the river. The proposal does not adequately address the interface with the existing low-medium density residential area at the southern boundary of the site, where the design response is for a massive masonry wall towering over the existing dwellings.

4.            The proposal in its present form is contrary to s.3.2.4(g) which requires buildings to be designed at a human scale. The proposal offers streetscape response including a large retaining wall in front of a carparking level, topped by a nine storey building above. The overall effect is of a repetitive floor plate extending into the sky, set back from the public footpath area, without any relation to the scale of the human body. An entrance gate/structure in the middle on the Land Street frontage is not able to offer a strong enough scaling element in face of the monoliths immediately beyond.

5.            The proposal in its present form in contrary to s.3.2.4(d) of the Strategic Plan which seeks to ensure that development ‘does not detract from the heritage value of places with heritage significance, including the impact of visual and other effects of development adjacent to, or otherwise clearly visible from, the heritage place’.

Toowong Memorial Park has been identified as having cultural heritage values which are complemented by its vegetation setting. The proposed ten storey buildings will be clearly visible from the park, thereby interrupting the aesthetic values of the setting due to the proximity of building bulk. They may also cast long shadows in the morning over the parkland, a time of day at which its role as a community venue for ongoing enjoyment and cultural experience will be adversely affected.

The placement of the memorial at the top of the hill in the park, will be particularly impacted upon since its position as a place for reflection. The memorial’s position is such that the privacy of an individual enhances the cultural heritage experience. This privacy will be affected significantly in an adverse manner by the perception of overlooking that the proposed tower buildings(s) will create.

6.            The proposal in its current form is contrary to s7.1.4 of the Aims and Objectives of the Residential Zone.

The proposal in its present form is well in excess of the density allowed in a Residential B, RDA3. (It is also in excess of the maximum density considered appropriate in a High Density Residential Area by the City Plan 2000.)

7. The proposal in its current form is contrary to Table 7.3.3 of the Residential B Zone. This Table indicates that an Apartment Building is a Column 4 use when the site is in a residential development area R2 or R3. The Integrated Planning Act determines that a “prohibited” use in a Planning Scheme was to be taken as an expression of policy that the use was inconsistent with the intent of the Zone in which the use was prohibited. The proposal is therefore inconsistent with the Intent of the Residential B Zone for land in an RDA3.”

Developer’s Duty as to Impacts on Surrounding Land, Public and Private

1. I record my acceptance of Mr Ure’s submission that s.3.2.4.1(a) appears to be

   directed to things to be done by those in control of publicly owned land, rather than

   by private developers, whose efforts may perhaps assist the controllers in

   “enhancing” but can hardly be called on to maintain or expand publicly owned land.

2. Even if it be correct that the appellants have no responsibility to enhance

   surrounding public areas, their proposal must be examined for deleterious effects on

   adjacent and surrounding areas, whether public or private, and those who use them.

   Land Street Impact

3. Something has been said of Land Street already. I think Mr Rousseaux rather over-

   emphasised its attractions, praising letterboxes, front gates and pathways of

   individual residences, for example. In my opinion Land Street cannot be compared

   with a suburban residential street. Such characteristics as it may hitherto have

   shared with one are rapidly disappearing. There will be no single residences left.

   Land Street is a wide thoroughfare with at least four lanes of traffic over and above

   some generous provision for parking. I assess it as essentially a means of getting

   vehicles between Coronation Drive and Sylvan Road otherwise than by turning at

   the Regatta Hotel intersection, although some turns are still possible there. I think

   the response to the complaint that the proposed towers do not “address” Land Street

   is that there is little or no attraction about Land Street; it would be unrealistic in the

   extreme to require a development that did not exploit the opportunity of desirable

   views of the Brisbane River and the City skyline. Other things being equal, it may

   be undesirable to subject pedestrians who choose to use Land Street to the

   experience of walking alongside a carpark. That is going to be the fate of

   pedestrians in Land Street generally, as along much of Coronation Drive and as it is

   and/or will be in Sylvan Road. The main reason for it is that the land is so low

   lying, levels falling away from Coronation Drive. Residential construction is not

   permitted below the 100 year floodline; presently, the practice is to allow another

   half metre. This dictates that the top of the appellants’ podium be roughly where it

   is proposed. If the approved development to the south goes ahead, pedestrians

   passing it will “rub shoulders” with carparking areas, as they do around the corner

   in Sylvan Road, where the first building is three storeys of accommodation above

   carparking. On the other side of Land Street, 16 Patrick Lane presents pedestrians

   with the side of its carpark. This development, indeed, viewed from Patrick Lane, creates the impression each of the proposed towers will give, of a tower on a

   podium resting on higher land at one end and supported by the walls of a

   “basement” carpark at the other (lower) end. If the application in Exhibit 15, or

   anything like it, succeeds, the remaining houses and vacant blocks on the east side

   of Land Street will disappear to be replaced by a long carpark wall, including a tall

   entrance, the nature of which, in my opinion, no amount of landscaping will

   disguise. While all this may be a matter for regret, it must be accepted as a

   consequence of present day dependence on private motor vehicles. What the

   appellants propose is, in my view, consistent with what the rest of development in

   Land Street offers and will offer.

   Moorlands Park Impacts

4. Land Street cuts through Moorlands Park, curving eastwards to join Coronation

   Drive alongside the Wesley Hospital grounds. There, a tunnel for cyclists and

   pedestrians links the Riverside Bike Path with Moorlands Park. While many would

   see today only a sad remnant of what used to be the park, and while the impact on

   motorists may differ little from that of a well landscaped freeway exit or entrance,

   for cyclists and pedestrians there is the impression and reality of a useful park

   which may be enjoyed for its own sake or offer a pleasant link from east to west. I

   am well satisfied from my own observations over the years that many people derive

   enjoyment from traversing the park. Ms Carter’s camera on the morning of

   Sunday, 29 April 2001 even captured “an amateur golfer practising short drives

   outside Inn on the Park” in the isolated section of Moorlands Park east of Land

   Street which I had characterised as a landscaped drain; to an extent, Moorlands

   Park generally serves that useful function. From my own observations, there has been a give and take arrangement restoring grasslands to the northern edge of

   Moorlands Park where the street from the west below the railway line used to

   continue to Land Street, in exchange for new arrangements which divert the former

   traffic to an upgraded intersection of Land Street and Patrick Lane. It should not be

   thought I am suggesting there have been no improvements in Moorlands Park. One

   is the striking raised planter box on Coronation Drive drawing attention with its

   reminder in large brass lettering that this is “Moorlands Park”. Less pleasing,

   visually, is the gravelled open parking area in the north-western corner of the park.

5. Much was made in the Council’s case of Moorlands Park marking a transition from

   the City to suburbia for those entering Land Street from the north. If there is such

   a thing as this transition, the contribution of what remains of the grounds of

   Moorlands House (part of the Wesley Hospital) should not be ignored. The

   approach might have been to focus on publicly owned space, in which event it

   might be noted that vegetation on the subject site (not the subject of any vegetation

   protection order or the like) also makes a contribution. It was argued that one of the

   impacts of the proposal would be to destroy or detract from the transition

   experience by inserting a very large built form which could not be ignored. This is

   the same argument that was mounted regarding the amenity of Moorlands Park.

   There was considerable dispute during the appeal regarding identification of

   “precincts” and the like, resolution of which seems to me not particularly relevant

   or helpful. The appellants’ witnesses insisted that the transition to a suburban scale

   of development occurred once outbound traffic moved under the railway line in

   Sylvan Road.

6. I thought the appellants’ witnesses who dealt with the matter rather went overboard

   in minimising the visual impact the proposal will have, particularly from Toowong

   Memorial Park, where some effort will be required by anyone determined not to

   look at it. While most of us would probably prefer open space and vistas to any

   kind of building in any landscape, there should not be accepted the assumption

   which seemed to be about that buildings, in particular large buildings, must be bad.

   Everything depends on the particular circumstances, against the background that

   landowners are entitled to make any lawful use of their properties. As at least one

   witness suggested, it is ridiculous to strive for the amenity that a park in a country

   town might offer, in an area which is not only close to the City centre, but has

   highrise development of its own, commercial and residential (Wesley Hospital

   ought not to be forgotten) going on. As Mr Kumskov said, what one sees or looks

   at will usually be much more confined than what a photograph (a fortiori a montage

   of photographs capturing some wider vista) might suggest. In my opinion,

   whatever one looks at, in this area, psychologically, one is aware of highrise

   development close by. In a large and growing city, that should not be regarded

   negatively. The impact of tall buildings close to parkland, whether or not rising

   behind a screen of vegetation may be satisfying or even stunning. (However Ms

   Carter must be accepted when she denies the validity of a comparison with the vast

   Central Park in New York.)

7. A building which is big may be pleasant or interesting to look at. Much time was

   spent contemplating the aesthetics of the proposal, some of which incorporated

   more technical considerations such as whether a façade was sufficiently articulated

   to limit or relieve a dominating effect. The original proposal was castigated as

   constituting “Gold Coast” development, and criticism along the same general lines has been adhered to, notwithstanding the considerable work done to break up

   facades by various devices. Thus, for example, the extent of glass balconies was

   criticized, and said to be out of harmony with other residential development,

   especially highrise, in Toowong. Perhaps the appellants should reconsider this

   aspect. It is a relatively minor one in the overall picture and involves and aesthetic

   judgment probably not best entrusted to the Court. Considering all of the relevant

   evidence, my view is that the impacts of the proposal for users of Moorlands Park

   are acceptable. Particularly is that so for people moving from Coronation Drive

   into Land Street. It could even be said that the proposal, in extending highrise

   development back to the railway line (of which all such people would presumably

   be aware) would seem natural, indeed to broaden in a satisfying way the “phalanx”

   of highrise residential development being approached, so that there will be an

   impression of moving into and through it, rather than one of passing a narrow island

   of it, clinging to the river.

8. (I note at this point that the proposal might be seen as deserving commendation for

   its bold use of a challenging site adjoining the railway, which is a busy one. Such a

   site would ordinarily be seen as problematical for residential development. One can

   imagine, for example, a government being berated for locating a public housing

   project next to a railway line. In this appeal it was suggested that the economies of

   scale offered by a large project permitted treatments which enabled the impacts of

   rail traffic to be ameliorated in a way not open in a smaller development, for

   example one of the kind approved for Numbers 2 and 4, which is what the Council

   maintains ought to be replicated by the appellants. I am inclined to think their

   proposal a superior one, other things being equal, to a lowrise townhouse

   development protected from train noise by a high acoustically treated wall.)

9. By a somewhat narrow margin, I accept the views of the appellants’ witnesses in

   relation to the Council’s complaints of the proposal’s lacking open balustrades,

   awnings, more apartments with the advantage of cross-ventilation and the like.

   Changes have been made to introduce “human scale”, which I would expect to be

   assisted as residents bring in their balcony furniture, potted shrubs and so on.

   Toowong Memorial Park Impacts

10. The Council’s objections to the bulk and appearance of the buildings give more

    cause for serious concern when the likely impacts on Toowong Memorial Park to

    the west are assessed. A witness noted that a western aspect is not entirely bad.

    Pursuing the Central Park comparison, one could imagine the towers addressing

    Toowong Memorial Park, across which expansive views to mountains to the west

    may be enjoyed. The architects have not done that, doubtless because the market

    demonstrates buyers would rather look at water and city lights and avoid intrusive

    sunlight and heat from the western side. So, the towers will, more or less

    obviously, turn their backs to the park. I agree with the assumption which I think

    permeated the appeal that users of the park would most likely not expect or

    welcome that. Understandably, Ms Carter’s initial architectural assessment, from

    the point of view of a Toowong Memorial Park user (which she has been)

    complained of massive blank walls. The appellants’ architects have adopted

    numerous devices to deal with that complaint. Areas of blank wall remain. Ms

    Carter has not changed her opinion I repeat here my expressed thought that on some

    of those blank areas, of which the main ones appear to be the four lift/stairwells, it

    might be a feasible idea to incorporate some feature of interest – by which I had in

    mind some substantial artwork, which might take appropriate advantage of there being four vertical panels in a line. Something along these lines, it seemed to me,

    would make appropriate obeisance to the park, disguising the likely fact that the

    residents organise their lives by reference to the river and the city. I do not see any

    practical way in which the Court could establish any requirement or condition to

    achieve the outcome I have speculated about. The Court should be shy of foisting

    on park users, over and above the proposal, any decorative element presented as art

    which might find no defenders.

11. I think that the course of history has led to Ms Carter’s characterisation of the park

    as sacred being an overstatement. As she indicated, Toowong Memorial Park was

    established by the elected representatives of the then municipality in 1918. The site

    was secured, entrance gates appropriately memorialised were constructed on Sylvan

    Road and the memorial proper was constructed atop the knoll in an impressive

    location which would have had a wonderful outlook. The evidence does not show

    to what extent the knoll and the column are visited. The evidence indicates that

    Anzac Day this year was honoured at the memorial established by the RSL near the

    ornamental gates. The swallowing up of the former municipality of Toowong in

    greater Brisbane has, I think, made inevitable the focus on the City centre which

    now characterizes Anzac Day, undoubtedly the main occasion in the year when the

    sacrifices of those who went to war are honoured.

12. Whatever sacredness may attach to the park has not prevented large parts of it being

    turned over to other uses, particularly of a sporting kind. This is a development

    replicated in many of the city’s parks, which its citizens have obviously welcomed

    over the years. Football is served by two fields and a clubhouse; there is a large

    (indoor) basketball centre in the north east which, while relatively low set, is highly visible from the knoll; an arm of the park shown on some of the maps extending

    westwards to Bayliss Street appears now to be used by lawn bowlers – this was not

    the subject of any evidence. There is a Scout Hut in Sylvan Road and another hut

    (which may or may not be the child care centre referred to in evidence) across the

    knoll in Park Lane.

13. I would think that if ceremonies were held at the monument on top of the knoll, the

    likelihood is that the audience would be seated to the east and facing west, away

    from the proposed building, the basketball court and the trains, whose passage is

    obvious, as are the railway lines themselves from the knoll, although not from the

    lower areas of Toowong Memorial Park, where the grassed batter is difficult to

    distinguish from a distance. I accept that the proposed buildings will be highly

    visible from most parts of Toowong Memorial Park, but the people offended by the

    sight of them will not be compelled to look at them. Whether people dislike the

    buildings will, I think, depend on their individual taste; I expect some people will

    like them, more will get used to them, and that in the long run, not a lot will be

    offended by them. Speaking for myself, I think the existing impacts of 16 Patrick

    Lane, the Regent and the Toowong Tower cannot be ignored from Toowong

    Memorial Park; it is not really feasible to screen the sight of them behind trees.

    Even if it were, those buildings are there and the most casual observer takes in

    immediately that they are big buildings. The impact of the proposal will be harder

    to ignore, but I would expect it to be appreciated as simply two more highrise

    buildings. I would also expect nearly all users of the park to be aware that the

    buildings are on the far side of a wide railway reservation carrying four sets of

    tracks and that such awareness would ameliorate feelings that the buildings were dominating the park. The evidence does not persuade me that there is a real risk of

    the buildings affecting the “micro-climate” in the park.

14. Another set of issues that strikes me as aesthetic ones concerned the supposed

    desirability of surrounding highrise development with lower rise development, to

    avoid abrupt transitions to lower still development or parkland, which may be

    regarded as no development, I suppose. Even if such an approach were correct

    generally, I think that a railway line presents a special case. I do not accept the

    argument that it is appropriate or necessary to have some low or medium density

    buffer between development on the east of Land Street and the railway and/or

    Toowong Memorial Park.

    Council’s Offer to Approve the Application

15. It remains to notice the highly unusual context in which the present appeal arose.

    The Council did not reject the application which it now says the Court should

    reject. There is no reason why the Council should not change its stance. Mr Lyons

    informed me (and I accept) there have been cases in which a local government has

    approved an application and then sided with submitters against it in a submitter

    appeal. That is closer to the present situation. The Council has been willing to

    approve the application in exchange for a substantial financial payment, namely

    $700,000. The appellants have been willing to negotiate for a cash payment, but

    unwilling to consider going much above $300,000. Their stance has been that such

    a sum was much in excess of anything the Council could lawfully call for, but

    represented an acceptable approach if matters went smoothly so that, for example,

    this appeal could be avoided. It must be remembered there were no submissions received. While there may be much to be said for an approach that developers who

    benefit from favourable planning decisions by local governments may reasonably

    called upon to share the value created by the approval by a contribution to the local

    government for the general public benefit, it has always been basic to our planning

    law that approvals must not be bought and sold in this way. The Council has

    assumed a curious and ambiguous position, contending in this Court that the

    impacts of the proposal are such as should not be accepted, although it has been

    willing to accept them in exchange for a payment, a payment which it should be

    made clear would benefit the citizens of Brisbane.

    The Resumption Complication

1. The matter is further complicated by the existence of a dispute, established by

   evidence, between the Council and the State, or an instrumentality of the State,

   which, as noted elsewhere, owned land resumed by the Council for the enlargement

   of Land Street. The resumed land was, in fact, excised from the appellants’ site.

   The State seeks more compensation that the Council has been prepared to offer.

   One would expect the compensation to be assessed by reference to the highest and

   best use of the resumed land at the date of the resumption. If the Council had

   conceded by approving the appellants’ application the appropriateness of highrise

   residential development, that might tend to enhance the State’s case for higher

   compensation than if the highest and best use were in accordance with the

   Residential B RDA R3 designation. The evidence before the Court indicates that if

   the Council had obtained the $700,000 sought, the major part of it would have gone

   to the State for compensation.

2. If compensation is not agreed, it may be assessed in the appropriate court, which

   will not be this one. I do not see how this Court’s determination could be regarded

   as decisive of the compensation matter. For one thing, although this Court, strictly,

   considers the appellants’ application in accordance with the law at the date when it

   was lodged, it has regard to things which have happened since and, indeed, to

   things which it assesses as likely to happen. I have proceeded on the basis that

   Exhibit 16 will become law, as the planning regime for the Toowong-Indooroopilly

   area. I have proceeded on a view of what is likely to happen in the light of that, and

   what is likely to happen pursuant to the application in Exhibit 15. If another court

   comes under the duty of assessing compensation payable by the Council to the

   State, it may well be assessing what was likely or probable at some different date(s)

   when the considerations were significantly different.

3. It should be noted that Ms Carter and Mr Rousseaux have been consistent in their

   assessment of the project and its problems from the outset. However, the Council’s

   stance has changed since its own internal assessment, so far as town planning issues

   are concerned. The Planning Branch report of 9 August 2000 was:

   “Transport and Traffic Comments the application. A large apartment complex at this location, which has access to multi modal and high frequency public transport services, is supported.

   However, the proposed site access is not appropriate and is not supported. The most suitable location for a major access point (all movements) is via Patrick Lane, close to the roundabout to maximise sight distances. Unless a right turn lane is provided, all movements access from Land Street should not be allowed due the arterial road function. At best, left in/left out access could be a possibility if the impacts could be satisfactorily controlled. It is noted that a right turn access has been retained for some existing sites after the recent road works in Land Street, however, this should not be permitted for a much more intensive development proposal such as that currently being considered.

   City Planning Comments perspective. The subject site is well located to take advantage of the employment opportunities and services available in the Toowong Major Centre in addition to having excellent public transport links.

   The Toowong-Indooroopilly District Local Area Plan Team is reviewing all City Plan area classifications within the District. Whilst the proposal does not comply with either the Town Plan zone or City Plan area classification density provisions, the Local Plan Team will recommend that the subject land (along with other land in Land Street) be reclassified to the High Density Residential Area. This recommendation takes into account the density of adjacent properties, proximity to the Toowong Major centre, public transport access and the minimal impact on adjoining residents. Consequently, the proposed R6 Density is considered acceptable and reasonable.

   The proposed building is bulky and lacks articulation, especially when viewed from Toowong Memorial Park. The design of the building in its present form is not supported. The Applicant should modify the design to address design faults and the provisions of the High Density Residential design Code.

   Conclusion & Recommendation
   The proposed density is supported from a strategic perspective.

   However, aspects of the proposal are not acceptable in its current form and require redesigning by the Applicant. These matters include:-

· The proposed access point

· Building bulk and articulation

It is recommended that the Applicant be requested to address the matters contained within this memorandum.”

Traffic issues have been resolved, the Court was told. Redesign has reduced

building bulk and improved articulation. The second paragraph under City

Planning Comments (above) lends support to Mr Kumskov’s assertion that the

reclassification was not proceeded with, as doing so might give an appearance of

the Council prejudicing (favourably) the applicants’ proposal.

1. It is not really surprising that compensation issues intervened. On 14 August 2000,

   Miss Heinke, Team Leader, DRS West prepared the following memo:

   “Further to the brief discussion at the Review Panel on Friday 11 August, I suggest the next step is to obtain a written comment from City Assets (i.e. whoever is dealing with the issue of compensation to the State Govt over the loss of land for the road construction.) We need to have advice from a valuer re the extent of a claim at R3 density and compare it to the loss at R6 density. Obviously, the differential will be significant.

   I believe that the planning perspective on this application should take a second position to the corporate position of compensation. This is particularly appropriate given that there is a legitimate planning argument for maintaining the R3 density. Furthermore the valuation for the Wesley Hospital purchase of part of the park was I’m sure based on R3 density being achieved.

   I suggest that we get this information from City Assets asap and take the application to Admin Sub Committee for their support for maintaining an R3 line and probably bringing the compensation issue forward, to ensure it is finalised before the applicant appeals etc. Therefore aim for next Monday 21 August for Admin Sub Comm. Please advise if you support the above strategy.”

   In some quarters within the Council, uncertainty existed as to why one side of Land

   Street was zoned differently from the other, or, more technically, why the permitted

   densities within the Residential B designation differed. Thus, Mr Michael sent the

   following memo to “PPOCP1” on 12 September 2000:

   “You asked me to find out why the site off Patrick Lane and Land St Toowong was only R3. Only answer I can find is that there is no answer.

   I spoke to Kevin Cronin about the compensation issue. He has Ben Pritchard following that up. In my understanding of valuation the value would be related to the highest and best use which would take into account the development nearby and most likely assume that the land could go to R6. Therefore the current RDA would not determine the valuation.

   Cheers
   Bill

   Copy to Ben for information”

   In due course a response came from Mr Pritchard, the Assessment Manager in the

   application:

   “Bill,
   Further to our telephone conversation regarding the above site,
   zoned as Res B RDA3, I would be grateful to receive confirmation
   of your view as to the acceptability, in land use planning terms, of
   the current proposal for Res B RDA6 density development on this
   site.
   The applicant has put forward the strong argument that the site is
   isolated from the adjoining park by the railway line and more closely
   relates to the Res B RDA6 zoned land along Coronation Drive. The
   current application has been advertised and no submissions were
   made.
   I look forward to receiving your reply.”

   Mr Michael replied:

   “Ben
   I have discussed this one with Mark Nicol. The response he gave
   you basically supporting higher density residential development
   subject to design treatment to ensure appropriate appearance etc.
   Please proceed on the basis of Mark’s response. (I only got involved
   when some-one was curious as to why it was only R3)
   Cheers
   Bill”

2. The zoning and some associated valuation-resumption issues had been discussed by

   Council officers and representatives and officers of the appellants, including Mr

   Kumskov, town planner, at a “pre-lodgment meeting” on 25 February 2000, as

   attested in the minutes prepared within the Council. At that stage, Mr Kumskov

   envisaged a change of designation from R3 to R6, which may have been less

   appropriate than R7. (The two high density categories have now been

   amalgamated.) The minutes record:

   “Resumptions-DH hoping that resumptions have been put together
   on the basis of R3 not R6.

   -LK said they’ve been told they are ‘virtually finalised’.”

   Mr Kumskov’s assessment was premature, it appearing that the compensation the

   Council must pay for land resumed for the enlargment of Land Street is still not

   finalized. The efforts being made within the Council to limit its compensation bill

   are no less than one would expect of a prudent local government. It is natural

   enough that the Council is, for the moment, unwilling to embrace too enthusiastically the notion that a R6 designation was appropriate at significant times

   in the past.

3. The history leading to the ultimate response (or lack of response) to the application

   is recounted in Mr Kumskov’s statement, Exhibit 1, to none of which has any

   relevant exception been taken:

   “During the period from lodgment in July to the formal response report in October, regular weekly and bi-weekly telephone conversations were held between the Project Co-ordinator (Larry Kumskov) an the Assessment Manager (Ben Pritchard). The outcomes of the various discussions were reflected in the formal response report in October.

   The Assessment Manager advised by telephone on 20 November 2000 that the application had been referred to the Administration Sub-committee. Issues raised following the meeting included:

· The need to discern between the two buildings to provide a sense
of difference and a separate street address for the two towers;

· Enliven the rear façade with regard to the railway and views

from Toowong Memorial Park;

·	A requirement for a “public betterment” contribution of $300,000 being a reflection of the enhanced value of the site going from R3 to R6.
Mr Pritchard advised me that the figure was calculated by taking the increase in GFA from 0.6 x site area to 1.5 x site area (ie 250%) and applying it to the current park contribution rate of $10/m2 of GFA. (12095m2 x $10 = $120,950 x 2.5 = $302,750 or $300,000 rounded off.)
Details of the request were faxed to the applicants who following discussions with myself and the Assessment Manager made an offer to contribute $300,000 to the Council by way of payment for all lawful infrastructure charges (water and sewerage headworks & park contribution) and an additional amount of about $120,000 for public betterment under the pretext of being for the enhancement of parks in the locality.
Details of the offer were included in the draft conditions for approval to be referred to the Urban Planning Committee for the meeting on 28 November 2000.
I am advised by Mr Pritchard that Cr Quinn withdrew the report from the agenda prior to the meeting on the basis that he considered the contribution was inadequate.
A meeting was arranged between the Project Manager, the applicants, Kevin Cronin (Special Projects Officer) and the Assessment Manager on 4 December 2000. Both Mr Wright and myself requested Cr Quinn attend the meeting. Cr Quinn did not attend the meeting. The upshot of the meeting was that the Administration wanted a contribution of $700,000 in exchange for the development approval (Refer Council Memo p. in Part B of this report). The amount was purportedly determined on the basis of a percentage of the increased profit attributable to the development if it was approved as high density residential as opposed to low- medium residential.
An offer of $150,000 was made based on the money being expended to upgrade Toowong Memorial Park as outlined in the Draft Local Plan for the area.
The offer was relayed to the next Civic Cabinet Meeting chaired by the Lord Mayor on 5 December. Mr Cronin advised me that the offer was rejected on the basis that the Council had spent millions of dollars in the area on the Bus Lane Project and that some of the money should be recouped from the windfall profits to the proponents of the Land Street development.
The officers were advised that the approach by the Administration was unacceptable.
The applicants took the view that a contribution of $150,000 for the betterment of the Toowong Memorial Park would be of more benefit to the community than expending a similar amount on appeal.
The only issue with regard to the proposed development that appeared to be in dispute at the time of lodgement of the appeal was the “public betterment” contribution sought by the elected members of the Council Administration.
It was generally agreed, and reflected in the draft conditions, that matters relating to the rear façade of the buildings and the interface with the park could be satisfactorily addressed as part of the final detailed design of the building.”

1. Speaking generally, the Council’s requirements have been met.

   The Appeal is Allowed, Absence of Submissions Significant

2. The Court is in the situation where, although an outside planning consultant, Mr

   Butler has fleshed out the “legitimate planning argument for maintaining the R3

   density” asserted by Ms Heinke in the memorandum of 14 August 2000, the views of the planners, so far as they are revealed by the evidence, support the appellant’s

   imaginative proposal. I find myself in agreement with the clear preponderance of

   expert planners’ views favouring the proposal. It is not necessary (even if it were

   appropriate) to reject the Council’s arguments against the appeal on the basis they

   run into some kind of estoppel or that the Council having been committed to or

   sympathetic to a different view in the past. The appellants’ case on the appeal,

   which it is unnecessary to go through at length, was convincing. Furthermore, the

   complete absence of submissions seems to me significant. While I accept that users

   of Toowong Memorial Park may not have become aware of the appellants’ proposal

   during the notification stage, careful consideration has been given to the kinds of

   arguments any such persons minded to oppose the appeal might have been likely to

   present; Ms Carter was a rather spirited advocate for them.

3. I think significance should be attached to the lack of submissions from persons

   connected with No. 16 Patrick Lane or Inn on the Park, which occupies the site on

   the northern side of Patrick Lane, who might have complained of interference with

   views to the west, as might persons connected with properties to the south on the

   eastern side of Land Street. During the appeal, the Council’s witnesses expressed

   more concern for the owners of other properties west of Land Street and south of

   the site. None of those owners had anything to say. It is not too late for the owners

   of Lots 2 and 4 to revise their plans; it is not too late for some amalgamation to be

   achieved south of the site. Inspection rather suggests that only two parcels fronting

   Sylvan Road remain in private hands, the area on the corner of Land Street giving

   every appearance of having been taken to permit truncation of a corner, leaving a

   small landscaped area in public ownership. Immediately west of that is a fairly

   modern building comprising three storeys of accommodation above ground level carparking, interestingly, higher than the Council’s case would concede to the

   appellants on their site. West of this substantial building is an older house,

   sandwiched in between it and the railway embankment.

4. The appeal should be allowed and the application granted subject to appropriate

   conditions. A good deal of work has obviously been done by the parties with a

   view to formulating a suitable set of conditions. There is no evidence or other

   material before the Court which would enable it to formulate conditions. This is

   something which will have to be left to the parties, who may now proceed in light

   of the Court’s intimation as to where it stands on the principal issue. I record my

   concern that the conditions ought to do whatever is possible to save two large old

   melaleucas identified by Mr Rousseaux and both located close to proposed vehicle

   entrances; the northern one is in fact on the footpath. He referred to some

   techniques that could be considered in his evidence, for example at p.447.

   Reasonable efforts ought also to be taken to protect the other existing significant

   trees which Mr Rousseaux has identified as capable of being saved. It may be that

   the “resolution” of “traffic” issues which Mr Rousseaux sees as a negative can be

   re-examined. Although there is expert traffic evidence in reports before the Court,

   the parties have made no submissions and it would not be appropriate for the Court

   to express any views at this stage.