Bell v Brisbane City Council
[2017] QPEC 26
•10 May 2017
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Bell v Brisbane City Council & Ors [2017] QPEC 26
PARTIES:
KATE PETA BELL
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and
SUNLAND DEVELOPMENTS NO. 8 PTY LTD
Co-Respondent
and
CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009
Co-Respondent by Election
FILE NO/S:
2868 of 2015
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
DELIVERED ON:
10 May 2017
DELIVERED AT:
Brisbane
HEARING DATE:
13, 14, 15, 16, 17, 20, 21, 22, 23, 24 June 2016, 27, 28 July 2016, 18 August 2016
JUDGE:
Rackemann DCJ
ORDER:
The further hearing of the appeal is adjourned.
CATCHWORDS:
PLANNING AND ENVIRONMENT – submitter appeal – proposal for 3 high-rise multi-unit towers, retention and reuse of a heritage place, open space and other uses on former ABC site at Toowong – where site in the Major Centre Zone, the Toowong Centre precinct, covered by a heritage overlay and designated as both a land mark site and a catalyst site – extent of centre issues – integration with the Toowong centre – height – bulk and scale – building separation – setbacks – infrastructure – heritage – traffic – amenity, privacy, overshadowing – economic and community need – architectural quality – landmark – subtropical design – tower-over-podium vs tower-in-plaza – streetscape and site activation – building transition – centre legibility – quality of open space – visual amenity, character and integration – site planning generally – nature and extent of conflict and grounds
COUNSEL:
D Gore QC with M Batty for the Appellant
M Hinson QC with N Loos for the Respondent
C Hughes QC with M Williamson, J Lyons and D Jones for the Co-Respondent
N Kefford for the Co-Respondent by Election
SOLICITORS:
Connor O’Meara for the Appellant
Brisbane City Legal Practice for the Respondent
McCullough Robertson for the Co-Respondent
Norton Rose Fulbright for the Co-Respondent by Election
TABLE OF CONTENTS
Introduction..................................................................................................... 5
(i)The site.............................................................................................. 5
(ii)The proposal...................................................................................... 6
(iii)The locality........................................................................................ 7
The assessment regime..................................................................................... 8
The issues......................................................................................................... 8
General town planning context........................................................................ 9
Site specific provisions of the TANP.............................................................. 13
Centre issues.................................................................................................... 18
(i)Centre activities................................................................................... 19
(ii)Integration with the Toowong Centre.................................................. 23
Height.............................................................................................................. 25
Bulk and scale.................................................................................................. 31
Building separation.......................................................................................... 34
Setbacks........................................................................................................... 39
Infrastructure................................................................................................... 40
Heritage............................................................................................................ 42
(i)Introduction....................................................................................... 42
(ii)Mapping............................................................................................. 46
(iii)Statement of significance.................................................................. 47
(iv)Areas of contention........................................................................... 50
(v)Witnesses and their credit/experience............................................... 50
(vi)Damage to Middenbury.................................................................... 51
(vii)Damage to the fig trees...................................................................... 54
(viii)The setting of Middenbury................................................................ 55
(ix)Views to and from Middenbury........................................................ 58
(x)The proposed addition to Middenbury.............................................. 60
(xi)Compliance with heritage provisions................................................ 62
Traffic.............................................................................................................. 63
(i)Introduction....................................................................................... 63
(ii)Vehicular access from Coronation Drive.......................................... 64
(iii)The form of the access....................................................................... 68
(iv)Archer Street cycleway access.......................................................... 71
(v)Council’s bikeway planning.............................................................. 72
(vi)The cross-river bikeway.................................................................... 72
(vii)Carpark layout................................................................................... 73
(viii)Conclusion on traffic......................................................................... 74
Amenity........................................................................................................... 75
(i)Appellant’s property.......................................................................... 75
(ii)20 Archer Street................................................................................ 80
(iii)Traffic noise...................................................................................... 81
(iv)Wind.................................................................................................. 82
(v)Lay witnesses.................................................................................... 84
Economic and community need...................................................................... 85
Architecture, design, visual amenity and character......................................... 95
(i)Architectural quality........................................................................ 95
(ii)Landmark......................................................................................... 96
(iii)Sub-tropical design.......................................................................... 98
(iv)Tower over podium v tower-in-plaza............................................... 101
(v)Streetscape activation...................................................................... 102
(vi)Building transitions.......................................................................... 106
(vii)Centre legibility................................................................................ 108
(viii)Quality of the public open space...................................................... 109
(ix)Visual amenity, character and integration with the centre.............. 114
(x)Site planning generally..................................................................... 115
Nature and extent of conflict and grounds....................................................... 118
Introduction
This is a submitter appeal against the respondent’s approval of a development application by the co-respondent for a material change of use for multiple dwelling, centre activities and re-use and extension of a heritage place and a preliminary approval for building work and operational works. The appellant’s family residence adjoins the subject site to the north. The co-respondent by election’s interest relates to a heritage place on the site.
The site
The subject site is the former ABC site in Toowong. It:
(a) is located at 600 Coronation Drive, Toowong on land described as lot 13 on RP104400;
(b) has an area of 1.4999 hectares;
(c) has a long frontage to Coronation Drive (approximately 150 metres);
(d) has a shorter frontage (approximately 64 metres) to Archer Street to the south;
(e) has a long frontage (approximately 136 metres) to the Brisbane River;
(f) is relatively regular in shape, with the exception of the north eastern corner which has an obtuse angle of intersecting boundaries which envelop the adjoining parcel of land owned by the appellant;
(g) has been cleared of buildings with the exception of a former residential building, Middenbury House (Middenbury), which is listed on the Queensland Heritage Register, and two small utility structures;
(h) is mostly cleared of vegetation with the exception of two large mature fig trees near Coronation Drive which are listed on the Queensland Heritage Register and remnants of vegetation around Middenbury and along the riverbank, and
(i) is in a derelict state and is ripe for redevelopment.
The topography of the site has been altered over the years. In general terms, it falls from its south western corner along Coronation Drive to the north and to the east where the site adjoins the Brisbane River. The highest point of the site is where Middenbury is located (elevated above Coronation Drive). The elevated platform upon which Middenbury sits creates a prominent upper level platform on the subject site.
The proposal
The development proposal has the following elements:
(a) 555 units with a gross floor area of 49,231.6 m2 comprised as follows:
Dwelling Tower A Tower B Tower C Total 1 bedroom 30 12 142 184 2 bedroom 106 80 104 290 3 bedroom 16 38 19 73 Villa 4 4 2 8 Total 156 134 269 555
(b) combined community use areas and food and drink outlets;
(c) public open space compromising some 53% of the site area;[1]
[1]Excluding areas of planting along the northern and southern boundaries, an area for road widening and areas to be given over for existing riparian vegetation. See exhibit 52, p 3.
(d) a sculpture park within the publicly accessible open space;
(e) private open space of 12.3% of site area;[2]
[2]Exhibit 52, p 4.
(f) site cover of only 31.4%, with a ground level site cover of 28.74%;[3]
[3]Exhibit 52, pp 1-2.
(g) 800 car parks (714 resident and 86 visitor spaces) spread across 4 basement levels;
(h) 680 bicycle spaces;
(i) a public bikeway and pedestrian way, to be kept in private ownership (protected by easements to be granted to the Council), traversing the subject land providing a connection to the bicentennial bike way and across the site, and
(j) the retention and extension of Middenbury and its adapted re-use.
The three residential towers are to be relatively evenly spaced across the site and identical in architectural expression and design. Designed by the late, internationally renowned, architect Dame Zaha Hadid, they feature a glazed external finish with a white sculptured skeletal frame, visible as a deliberate design element. Each of the towers tapers to a narrow base. The widest part of each building is located at approximately level 5, which is the floor with the greatest tower site cover. The shape of the buildings has been described as champagne flute like.
The locality
The site is part of the Toowong major centre. The core of that centre is focused on High Street, Jephson Street and Sherwood Road, which lie to the west of Coronation Drive and the railway line. The centre and its immediate area is undergoing rapid transformation in terms of its built form. A number of recent approvals have been granted by the Council for high-rise, high density residential development. A number of approvals have been actioned and construction is under way. The centre enjoys excellent access to public transport, with rail, ferry and bus services all within walking distance. The subject site provides the only riverfront site within the centre.
As to development surrounding the subject land:
(a) land to the north is outside the designated centre and presently comprises mostly low or medium density residential dwellings. This includes the appellant’s land which is included in the High Density Residential zone;
(b) land to the south is developed with a 2 storey, local heritage listed house (St Briavels). A 9 storey apartment complex has been recently approved on this site (20 Archer Street), located between St Briavels and the Brisbane River;
(c) further south in Archer Street, development comprises a mix of residential forms, from older 1 and 2 storey homes of significant character and amenity to older apartment blocks (3 – 7 storeys) to high-rise apartments up to 15 storeys (the Aspect development) which were under construction at the time of the hearing, and
(d) land to the west across Coronation Drive is the “core” of the centre including the Toowong Tower and department store based shopping centre, offices and a recently approved 17 storey, mixed use development. The Toowong Tower has been a prominent feature of this centre for many decades but much taller development is now occurring and will likely occur in the centre in the future.
The assessment regime
The development application was impact assessable and so is to be assessed pursuant to s 314 of the Sustainable Planning Act 2009 (SPA). Public notification generated 521 submissions, although of those, 502 were not properly made. The overwhelming majority of submitters were opposed to the development.
The application is to be decided in accordance with sections 324 and 326 of SPA. A decision on the application must not conflict with a “relevant instrument” unless there are sufficient grounds to justify the decision. A relevant instrument includes a planning scheme. Grounds are matters of public interest.
Grounds may be those relevant to the part of the application which is in conflict with the planning scheme or may be grounds in favour of the application as a whole and which, on balance, are sufficient to justify approval notwithstanding conflict.[4] Whilst the court must not usurp the local government’s role as planning authority, by adopting its own planning strategies in preference to those in the planning scheme,[5] the discretion to approve a particular proposal notwithstanding conflict (where there are sufficient grounds) recognises that a degree of flexibility is desirable, in the public interest, in development assessment. The co-respondent bears the onus of establishing that the proposed development should be approved and the appeal dismissed.
[4]Weightman v Gold Coast City Council [2003] 2 Qd R 441 [3].
[5]Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209, 211.
The issues
The appellant, as she is entitled to do, did not confine her case to issues which directly affect her family residence. The appellant’s lawyers exhibited considerable diligence in identifying and putting in issue, compliance with 82 provisions of the planning documents.[6] Helpfully, counsel for the appellant ultimately identified some 37 “central provisions” and acknowledged that, if the appellant’s case was not made good by reference to some or all of those provisions, it would not be necessary for the court to consider the remaining 45 provisions with which the appellant also alleged conflict. Further, the “central provisions” included provisions of the Queensland Heritage Regulations, which the appellant ultimately did not contend were applicable to impact assessment. Notwithstanding the identification of the central provisions, the appellant’s submissions addressed some other provisions which were not central provisions and, in some instances, not identified issues at all. These reasons deal with the “central provisions” in the context of the various issues to which they relate.
[6]See the list in exhibit 3A.
There is a contest about the nature and extent of the conflict with the planning scheme. The respondent and co-respondent assert that there are sufficient grounds to warrant approval despite any conflict which may be found to exist.
General town planning context
The development application was made on 1 September 2014. City Plan 2014 (CP2014) was in force at that date. Under CP2014 the site is:
(a) in an identified growth node on a selected transport corridor;
(b) in the Major Centre zone;
(c) included within the Toowong Centre Precinct of the Toowong – Auchenflower Neighbourhood Plan (TANP) for which there is a code which applies to development assessment;
(d) included within Sub Precinct NPP-001C of the TANP;
(e) in the heritage overlay;
(f) designated as one of the landmark sites throughout the city, and
(g) designated as one of the catalyst sites within the TANP area.[7]
[7]The other 2 being the Woolworths site and the Wesley Hospital – see figure a.
There is a hierarchy of assessment criteria under CP2014, pursuant to which:
(a) the strategic framework prevails over all other components to the extent of the inconsistency;
(b) state-wide codes prevail over all other components (other than the strategic framework) to the extent of the inconsistency;
(c) overlays prevail over all other components (other than the strategic framework and state-wide codes) to the extent of the inconsistency;
(d) neighbourhood plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency, and
(e) zone codes prevail over use codes and other development codes to the extent of the inconsistency.
Part 3 of CP2014 contains the strategic framework. It includes Theme 5: Brisbane’s City Shape, which has nine elements including:
· Element 5.3 Brisbane’s major centres, and
· Element 5.8 Brisbane’s growth nodes on selected transport corridors.
The Toowong major centre is one of eight major centres outside of the Brisbane CBD. The specific outcomes for major centres include that they:[8]
[8]S3.7.4
· accommodate significant population-serving activities and employment;
· are well serviced by the city’s public transport and active transport network which are supported by development;
· support an 18 hour economy, and
· comprise integrated residential development.
The proposal is for an integrated residential development, with some other uses and facilities that will support the centre, which is well serviced by public transport and an active transport network.
The specific outcomes for Brisbane’s growth nodes on selected transport corridors include that they:[9]
[9]S3.7.9
· provide opportunities for a range of more intense urban form, mix of land uses activities that are tailored to the locality and catchment’s community needs in accordance with the applicable land use strategies;
· provide an integrated urban form and exhibit leading practice in urban and public domain design and social environmental outcomes, and
· are based on railway stations and land within the centre zone which are focus points of activity, accessibility and employment.
Insofar as the Milton to Wacol transport corridor is concerned, the following statement is made in CP2014 in relation to Toowong:[10]
“The Toowong Major Regional Activity Centre will have a strong commercial office focus due to the centre’s proximity to the city centre, including via the Centennial [sic] Pedestrian Cyclist Route along the Brisbane River. High density residential development builds on the centre’s proximity to the river and the University of Queensland, St Lucia campus.”
[10]Exhibit 2, p 77.
One of the appellant’s issues alleged conflict with this provision on the basis that the proposal does not have a commercial office focus. The provision however, speaks of the strong commercial focus of the centre as a whole (which is discussed later and which this proposal would not compromise). It does not require each development on each site to have this focus. As for the balance of the provisions, the proposal is for high density residential development which builds on the proximity of the Toowong Major Activity Centre to the river and the University of Queensland, St Lucia campus. It also proposes to augment the pedestrian/cyclist route. Perhaps understandably, this was not one of the appellant’s “central provisions”.
The Major Centre Zone Code (MCZC) is an applicable code. The purpose of that code[11] is to provide a mix of uses and activities, including residential uses, capable of serving a subregion. In relation to Toowong (amongst other places), the purpose is to provide for the mix and intensity of uses and level of economic and social activity that support its role as an activity core, servicing a sub-regional catchment and complementing the role of regional centres.[12] Multiple dwellings are a form of centre activity.[13] The overall outcomes (OOs) include[14] that development is tailored to its specific location and to the role of the individual centre and is consistent with the location-specific provisions of the relevant neighbourhood plan.
[11]S6.2.2.2
[12]S6.2.2.2
[13]See table SC1.1.2.B – Defined activity groups.
[14]OO(4)(b).
The purpose of the TANP Code is to provide finer grained planning at a local level for the Toowong Auchenflower Neighbourhood Plan Area. The purpose of the TANP Code is to be achieved through OOs including those for each precinct of the neighbourhood plan area. The code also provides for assessment criteria in the form of performance outcomes (POs) and acceptable outcomes (AOs). The TANP Code contains provisions which are specific to the subject site, and also designates the site as both a landmark site and a catalyst site.
The OOs of the TANP Code include the following with which the proposal is consistent and in respect of which the appellant’s issues did not allege conflict:[15]
[15]The submission for the appellant addressed OO(3)(o), but that is not one of its central provisions or issues and it is not an objective with which the proposal is in conflict in any event.
(f) Higher density development is located in areas with high amenity, close to major open space or the Brisbane River, or in centres and around major public transport to promote legible centre structure and support transit oriented development.
(n) Development enhances the public realm and pedestrian and cycle movement with a network of parks, arcades and plazas (e.g. predominantly hard-surfaced open space used by the general public).
(o) Development encourages walking, cycling and public transport as attractive options for daily travel for residents, employees and visitors, and improves pedestrian/cycle connections to key destinations.
(p) Development contributes to the creation of new public spaces and improves existing public spaces, ensuring casual surveillance, providing new pedestrian connections and where possible, integrating with and providing direct access to open space.
(q) The Brisbane River has a renewed focus within the neighbourhood plan area, and residents, employees and visitors are provided with easy access to active and passive recreational opportunities that make the most of this important natural asset.
The ‘public realm’ to which reference is made in OO(3)(n) is defined[16] to mean any publicly accessible streets, pathways, cross-block links, arcades, plazas, open spaces and any public and civic building and facilities. It is not limited to areas in public ownership. The proposal includes a significant contribution to the public realm. Other overall outcomes (with which the appellant contends the proposal conflicts) are discussed later.
[16]Table SC1.2.3.B.
The TANP Code also has OOs for the Toowong Centre Precinct, of which the site forms part. Those OOs with which conflict is alleged (b, c, d and h) are discussed later.
Other applicable codes of relevance are:
· the Centre or Mixed Use Code (CMUC);
· the Multiple Dwelling Code (MDC);
· the Road Hierarchy Overlay Code (RHOC);
· the Transport Access Parking and Servicing Code (TAPS Code);
· the Bicycle Network Overlay Code (BNOC); and
· the Heritage Overlay Code (NOC).
Compliance with an applicable code under City Plan 2014 can be demonstrated by adoption of the acceptable solutions or consistency with the corresponding performance outcomes or with the purpose and overall outcomes of the code.[17]
[17]S5.3.3(1)(d)(i), read with (c)(iii).
The Queensland Heritage Place State Code (QHPSC) is later discussed in relation to the heritage issues.
Site specific provisions of the TANP
It has already been observed that the TANP contains provisions which specifically relate to the subject site.
The OOs for the neighbourhood plan area include the following:
“(3)(k)New development along the river’s edge on the former ABC site improves public river access and provides appropriate building design using setbacks, bulk and separation and the provision of public open space.”
The subject development will improve public river access by providing, for the first time, public open space on this riverfront site, including public open space along the river’s edge. The building design is discussed later and for the reasons given, is appropriate.
The OOs for the Toowong Centre Precinct (NPP-001) contain provisions which, whilst not specifically naming the subject site, can only be referring to it, because it is the only site within the precinct with a river frontage. OO(4)(g) is as follows:
“Development in this precinct extends to and engages with the river, while providing public spaces that are linked to the remainder of the precinct by high quality streets and pedestrian connections.”
The proposal will allow the precinct to extend to and engage with the river. Whilst the subject site is separated from the balance of the precinct by Coronation Drive and the railway line, the proposal provides for a very permeable site within which there is a generous provision of public space to which the streets and pedestrian connections in the remainder of the precinct can link. That public space will be accessible from both the Coronation Drive and Archer Street frontages of the site and, as is noted later, the proposal will improve the quality of the streetscape (including by improvements required by conditions). There are, beyond the site, pedestrian crossings at signalised intersections and a pedestrian overpass located to the south of the subject site, which facilitate pedestrian connection. The proposal does all that could reasonably be expected to support this OO. It should be noted that the OO was not one with which conflict was alleged in the appellant’s central provisions or issues, although it was referred to in submissions.
OO(4)(h) provides as follows:
“Development on sites adjoining the Brisbane River ensures the public access to the river, and buildings adjoining riverfront public spaces include a lively blend of retail, commercial, residential and community uses.”
The subject site provides riverfront public spaces which include a blend of uses. For the reasons stated later, that blend of the specified uses is not as rich as might be imagined. The proposal would however, achieve substantial and lively activity on and through the site to the river in public spaces with residential uses, the repurposed Middenbury, an historical information/interpretive centre, café and restaurant associated with it, a sculpture park, pedestrian and cycleway ways, a café closer to the river and open spaces.
OO(3)(l) is also site specific, since it relates to Middenbury. It provides:
“The heritage value of Middenbury House is protected and enhanced, through retention, refurbishment and re-use of its building”.
It is proposed to retain, refurbish and reuse Middenbury. For the reasons discussed later in relation to the heritage issues, the proposal would achieve that overall outcome.
PO11, (and its corresponding acceptable outcomes) specifically relates to the subject site and is as follows:
“PO11
Development on the former ABC site as shown in Figure a:
(a) enhances the pedestrian experience with high-quality building design, streetscape and waterfront amenities providing a direct and tangible linkage between Toowong and the river;
(b) provides a new public space with supportive uses to encourage activity on and occupation of the river’s edge;
(c) maintains the natural quality of the waterfront experience for access by the general public;
(d) reflects the local culture and heritage of Middenbury House;
(e) provides an arcade between Coronation Drive and Archer Street.
Note – A structure plan prepared in accordance with the Structure planning scheme policy can assist in demonstrating achievement of this outcome.
AO11
Development on the former ABC site shown in Figure a has a structure plan which demonstrates:
(a) provision of a riverside open space area a minimum of 3,000m2 and with a minimum Brisbane River frontage of 40m;
(b) retention and re-use of Middenbury House and retention of the heritage-listed trees on Coronation Drive;
(c) retention of views to the Brisbane River as indicated in Figure b;
(d) public access to the entire Brisbane River frontage for a minimum width of 12m;
(e) provision of an arcade to connect to Coronation Drive at Booth Street from Archer Street;
(f) activation of the ground storeys of buildings fronting public spaces;
(g) provision of vehicular access to the site that is shared with pedestrian spaces;
(h) provision of a maximum of 1 vehicular access to the site from Coronation Drive;
(i) extension of the Bicentennial Bikeway through the site to connect with Archer Street.”
The proposal substantially adopts the acceptable outcomes. It:
(a) provides more than twice (almost three times) the amount of open space on this riverfront site, including a frontage[18] in excess of 40m;
[18]Which does not need to be continuous.
(b) involves the retention and reuse of Middenbury and the retention of the heritage listed trees on Coronation Drive;
(c) retains views to the Brisbane River as indicated in Figure b, being a significant view across the river;
(d) provides public access to the Brisbane River frontage, and substantially to a minimum width of 12m, although there are incursions;[19]
[19]Exhibit 6, p 123; T5-70.
(e) provides an arcade to connect to Coronation Drive from Archer Street (an arcade is defined[20] as a privately owned pedestrian pathway that is part of a pedestrian network and is publically accessible during hours of operation);
[20]Table SC1.2.3.B.
(f) does not involve activation of the ground storey of the residential towers which front the public spaces, although it will achieve substantial activity on the site;
(g) involves both provision of vehicle access and pedestrian spaces;
(h) has only one vehicular access to the site from Coronation Drive, and
(i) provides for the extension of the Bicentennial Bikeway through the site to connect with Archer Street.
Accordingly, there is substantial adoption of the acceptable outcomes, although there is some level of departure. That does not in itself create conflict. Consideration needs to be given to the performance outcome.
The appellant sought to make a point about the note to the performance outcome and the absence of a structure plan. The note simply states that such a plan can assist in demonstrating achievement of the outcome. A deal of what is, in effect, structure planning, evidently underlies the formulation of the proposal itself and, as Mr Schomburgk (the town planner engaged by the co-respondent) pointed out, was, in effect (if not in name), conducted in the development application process. Further, the extensive analysis of the proposal in the course of the appeal permits an assessment as to whether it achieves the performance outcome.
The matters of controversy in relation to whether the proposal meets the performance objectives are:
(a) heritage issues;
(b) whether the proposal involves “high quality building design, streetscape and waterfront amenities”;
(c) whether it provides “a direct and tangible linkage between Toowong and the River.”
(d) the extent to which it provides “supportive uses to encourage activity on and occupation of the river’s edge”, and
(e) whether it maintains the natural quality of the waterfront experience.
Those matters are discussed later. For the reasons given, I am satisfied that the proposal appropriately responds to each of those issues.
It has also been noted that the TANP designates the site both as a landmark site and as a catalyst site. There are 41 landmark sites across the city. They are defined as those:
“Identified in a neighbourhood plan to accommodate buildings or developments that attain citywide prominence through a combination of notable architectural excellence, siting and location.”
For the reasons discussed later, the subject development would, if it proceeded, achieve citywide prominence through a combination of notable architectural excellence, siting and location.
PO6 of the TANP applies to landmark sites in the TANP. It provides that development on such a site provide a prominent visual reference and contribution to the city’s public realm by doing various things, which include exhibiting subtropical architectural excellence and respecting the prominence of adjoining or nearby heritage places. Whether the proposal exhibits ‘subtropical’ architectural excellence and whether it respects the prominence of Middenbury[21] were controversial. For the reasons discussed later, the proposal satisfies this PO.
[21]Which is on the site rather than adjoining or nearby.
There is no definition of a “catalyst site”, but the overall outcomes for the neighbourhood plan area include as follows:
“(3)(s)structure planning of catalyst sites identified in figure a addresses the unique characteristics of these sites ensuring that development integrates with surrounding land, creates an attractive public realm in an urban environment, provides public space and retains and reuses onsite heritage structures.”
The absence of a document called a ‘structure plan’ has already been dealt with. The proposal has obviously been designed to address the unique characteristics of its site and to create an attractive public realm and urban environment. It provides public open space and retains and reuses the heritage building. For the reasons discussed later, there is a limit on the extent to which it can physically integrate with surrounding land, including the appellant’s property. The proposal however, creates a permeable site with visual and pedestrian linkages to the surrounding area. This was not one of the appellant’s central provisions, or indeed a provision in its issues otherwise.
It is evident that, notwithstanding the large number of provisions relied upon by the appellant, there are numerous provisions of the planning scheme or parts of provisions with which the proposal is consistent or which it supports.
Centre issues
It was submitted, for the appellant, that the proposal is contrary to the intent of CP2014 because it:
(i) includes limited, if any, centre type uses, and
(ii) fails to integrate with the existing Toowong Centre.
Centre activities
It was pointed out, on behalf of the appellant, that:
· the site is included in the Major Centre zone in CP2014;
· under the local plan in force at the time of CP2000, the site was in the residential precinct, which was to be developed predominantly for medium density residential uses and where retail uses were not supported;
· under the TANP however, the site is in the Toowong Centre precinct and not in the Toowong Residential precinct, the latter of which is intended to form the primary residential catchment to the Toowong Centre, and
· the proposal is nevertheless predominantly for residential uses.
Insofar as the appellant’s “central provisions” are concerned, reliance was placed on:
(i) OO(4)(b) of the TANP Code, which provides that the Toowong Centre precinct “contains a range of knowledge-based employment opportunities and takes full advantage of its strong economic ties to the CBD and surrounding suburbs…”
(ii) OO(4)(c) of the TANP Code, which provides that the Toowong Centre precinct “contains the greatest intensity and mix of land uses in the neighbourhood plan area, providing a focal point for retail, commercial and social activities…”
(iii) OO(4)(h) of the TANP Code which, as has already been noted, seeks development within the Toowong Centre precinct on sites adjoining the Brisbane River which ensures, amongst other things, a “lively blend of retail, commercial, residential and community uses.”[22]
(iv) OO(5)(a) of the TANP Code which provides that the Toowong Residential Precinct (NPP-002) forms the primary residential catchment to the Toowong Centre.
(v) PO3 of the TANP Code, which provides that development in centre precincts provides a “balanced mix of residential and non-residential uses and includes a significant component of non-residential centre activities to maximise transit oriented development outcomes.”
(vi) PO11 of the TANP Code which provides that development on the subject site, amongst other things, “provides a new public space with supportive uses to encourage activity on and occupation of the river’s edge.”
(vii) OO(4)(a) of the MCZC, which provides that “development delivers a highly diverse range of centre activities…”
[22]Community use is defined in CP2014 as “premises used for providing artistic, social or cultural facilities and community support services to the public and may include the ancillary preparation and provision of food and drink”
Reference was also made to AO2.3 of the TANP. That is an acceptable solution to a performance outcome which refers to activation, a matter discussed in the context of design issues.
Whilst the centre is intended to be developed for a mix of land uses, it must also be acknowledged, as was pointed out for the respondent, that the intended mix includes high density residential uses in the centre. In that regard:
(i) multiple dwellings are one form of centre activity;
(ii) section 3.7.1(e) of the strategic framework provides that not only are Brisbane’s major centres vibrant, mixed use destinations that support an 18 hour economy, but that they “integrate residential development”;
(iii) section 3.7.4 contains specific outcome 4 that “major centres comprise[23] integrated residential development” and land use strategy L4 which provides that “higher density residential development is provided for and will complement, but not compromise, the core commercial retail and community functions of the major centre”;
(iv) section 3.7.9 contains land use strategy L3 which, amongst other things, provides that centres within growth nodes are intensive nodes of not only commercial and retail activities and local services and facilities, but residential activities as well, with a variety of housing types, configurations and sizes;
(v) the purpose of the MCZC is to provide for a mix of uses and activities, including residential;
(vi) OO(4) of the MCZC, upon which the appellant relies, goes on to provide that development for a residential use in the zone should, amongst other things, be high density, not compromise the primary function of the zone as a commercial activity centre, facilitate urban consolidation and the efficient use of physical and social infrastructure, support the creation of a walkable centre, with the potential for residents to live within walking distance of public transport and facilities within the centre and provide a wide range of housing sizes;
(vii) OO(4)(c) of the TANP Code, goes on from the part extracted above, to provide “A variety of residential uses also exists in the centre and takes advantage of the centre’s proximity to public transport and the amenity provided by new public open space and the Brisbane River”;
(viii) the “lively blend” referred to in OO(4)(h) expressly includes residential uses, and
(ix) whilst PO3 of the TANP Code refers to a “balanced mix” of residential uses and non-residential uses, that does not require an even mix or preclude development with a substantial and, indeed, majority residential component. So much is apparent from the acceptable outcome, which refers to a maximum of 80% of floor space in individual buildings being occupied by residential uses. One can therefore expect that a “balanced mix” can be achieved by development of at least up to 80% residential (by adoption of the acceptable outcome) and possibly more, (on a performance based assessment).
[23]In this context the word “comprise” should be interpreted to mean “include”.
There is no basis for excluding development with a substantial and even overwhelming (up to at least 80%) residential component from this part of the centre or for supposing that the proposed development will supplant or overtake the primacy of the Toowong Residential Precinct as the primary residential catchment to the Toowong Centre.
None of the above is to suggest that the planning documents intend that the subject site be developed exclusively for residential purposes, nor is it proposed to be developed in that way. The issue is as to the appropriateness of the limited amount of non-residential uses proposed.
It was pointed out, on behalf of the respondent, that:
(i) consistently with OO(4)(d) of the TANP Code, it is Sherwood Road where the majority of retail, community and lifestyle uses are to be located;
(ii) consistently with OO(4)(e) of the TANP Code, it is High Street which is to be the focus for non-residential development, and
(iii) the intent for the Woolworths site to be a high quality, high density “mixed use development”, (consistently with PO10 of the TANP Code) is not replicated in PO11 for the subject site. Rather, PO11(b) simply requires provision of new public space, with supportive uses to encourage activity on and occupation of, the river’s edge, which the proposal does.
It was submitted, for the respondent and for the co-respondent, that the non-residential uses at ground level will form part of a “lively blend” and will encourage activity on and occupation of the river’s edge and is appropriate.
It is unsurprising that development of the subject site, being the only riverfront site within the centre, is proposed to have a very substantial residential component. The matters referred to by the respondent might justify a non-residential component of somewhat lesser scale than for other sites in the centre. I accept that the proposal includes a blend of residential, food and beverage and community use (Middenbury and the sculpture park). I also accept that the proposed development will indeed encourage activity on, and occupation of, the river’s edge given the substantial, attractive open space to be provided extending down to the river’s edge, in the context of a site design which provides a high level of permeability through the site, combined with the uses and attractions to be provided. The area will be lively[24] but, it is debateable however, whether the limited extent of non-residential uses here proposed fits the description of a “lively blend” in relation to the uses specified in the provision above. Further it is difficult to conclude that it provides a mix which would fairly be described as “balanced” or a component of non-residential centre activities which would fairly be described as “significant” for the purposes of PO3 of the TANP. I note that Mr McKerrell (the architect called by the co-respondent) thought that PO11(b) contemplates a wider range of supportive uses than proposed[25] and that the proposal does not involve a “lively blend” of uses nor a significant component of non-residential centre activities.[26] The written submissions for the co-respondent acknowledged that the proportion of non-residential centre activites proposed is “modest” and that the proposed blend does not include all of the elements referred to in OO(4)(h).
[24]T5-68 L 44–T5-69 L 5.
[25]T5-7.
[26]T5-9.
Mr Schomburgk also agreed that the proposal does not include a significant non-residential component. However, he was of the view that an appropriate balance can nevertheless be achieved across the centre as a whole. That may be so and OO(4)(b) and (c) do refer to the precinct as a whole whilst OO(4)(a) of the MCZC must be read with OO(4)(e) which contemplates development for residential use in the MCZC. OO(4)(h) of the TANP Code however relates to the subject site and PO3 and PO11 of the TANP Code form part of the assessment criteria for particular applications. Mr Schomburgk’s point about the centre as a whole does not avoid a conclusion that there is a level of conflict by reason of the limited provision of a non-residential development in the subject proposal. I find that there is a level of conflict at least with PO3 and, in my view, also with OO(4)(h) although not with PO11(b). My ultimate decision in this matter would not however alter, even if I had concluded that there was a degree of conflict with PO11(b) by reason of there being insufficient supportive uses.
Integration with the Toowong Centre
The TANP Code contemplates that the subject site will integrate with and be accessible from the Toowong Centre. Insofar as the appellant’s “central provisions” are concerned:
(a) OO(3)(k) of the TANP Code provides that new development along the river’s edge on the subject site improves public river access, and
(b) PO11(a) of the TANP Code provides that development on the site “enhances the pedestrian experience with high quality building design, streetscape and waterfront amenities providing a direct and tangible linkage between Toowong and the river.”
The written outline of submissions for the appellant also referred, in this regard to:
(i) OO(3)(o) of the TANP Code, which speaks of “development encouraging walking, cycling and public transport as attractive options for daily travel for residents, employees and visitors, and improves pedestrian/cycle connections to key destinations;
(ii) OO(4)(g) of the TANP Code, extracted and discussed earlier, and
(iii) OO(4)(i) of the TANP Code which provides that “…development promotes pedestrian movement to and from public transport and centres”.
None of these provisions however, appear in the appellant’s issues, far less the list of central provisions, but the development does not, in any event, conflict with them.[27]
[27]The development is well located in relation to walking, cycling and public transport opportunities. OO(4)(g) is discussed earlier.
In applying the provisions which are in issue to the subject development, it must be recognised that the site is physically separated from the remainder of the precinct by Coronation Drive and the railway line. The proposal cannot undo that. There are, however, signalised pedestrian crossings on Coronation Drive and a pedestrian overbridge located to the south of the subject site. In that context, the site offers an opportunity, taken up by the proposal, to provide a connection through to the river. Insofar as the central provisions referred to above are concerned:
(a) the proposed development on the subject site does improve public river access. The proposal is to provide access extending to and along the river’s edge, in the context of a development which has been designed to be very permeable (a matter discussed later) and to designate a large part of the site, extending to the river’s edge, for a publicly accessible open space providing high quality pedestrian connections to and through the site from Coronation Drive and Archer Street, and
(b) PO11(a) focuses upon enhancing the pedestrian experience and providing a direct and tangible linkage between Toowong and the river. For the reasons discussed elsewhere, the pedestrian experience is not particularly positive at present and there is no linkage between Toowong and the river. The proposal would change that by providing a direct and tangible linkage, through the site, between Toowong and the river, enhancing the pedestrian experience with high quality building design (discussed later), streetscape (also discussed later) and amenities through to the waterfront.
My ultimate conclusion would not have altered even had I found a degree of conflict by reason of a lack of more extensive waterfront amenities. The amenities and attractions (including the open space areas themselves) throughout the site, down to the waterfront will enhance the pedestrian experience and provide a direct and tangible linkage. The conflict would not be grave.
Height
The appellant contends that the proposal is in conflict with CP2014 by reason of its height. Central to that contention is A01.1 of the TANP[28], which provides as follows:
“A01.1
Development complies with the number of storeys, building height and minimum site frontage in table 7.2.20.3.3.B.Note – neighbourhood plans will mostly specify maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.”
[28]The appellant’s central provisions also include PO6 of the MDC which provides that development has a building height that is consistent with the streetscape, local context and intent for the area having regard to, amongst other things, the predominant height of existing or approved buildings in the street, and providing appropriate separation and a sensitive transition between houses and higher scale building forms. The changing face of Toowong, in terms of building height, has been referred to. Transition is dealt with later. The intent for the area is more fully dealt with in the TANP Code. Understandably, it is the provisions of the TANP Code with respect to height which were the focus of this issue. I have found conflict in relation to height. That there is some conflict also with PO6 of the MDC does not add greatly to a consideration of this issue and does not alter my ultimate conclusion that approval is warranted notwithstanding conflict in relation to height.
Table 7.2.20.3.3.B (“the table”) specifies 15 storeys for development of a site of 1500m² or more with a minimum frontage of 36m in sub-precinct NPP-001C. All three towers in the proposal substantially exceed that number of storeys (2 x 24 storeys and 1 x 27 storeys). That does not, of itself, establish conflict, because acceptable outcomes are not mandatory.
The appellant sought to make something of the relatively tall absolute height of the buildings (2 x approximately 105m and 1 x approximately 114m), as being the equivalent of the height of more conventionally designed residential buildings with a greater number of storeys. The absolute heights of the residential towers are increased by the tapered bases up to the first residential storey and by rooftop elements which, as Mr McKerrell (the architect called by the co-respondent) noted, are integral aspects of the architectural design. The TANP Code is however, not one which specifies height in metres. Its concern is for the number of storeys. That leaves scope for the incorporation of elements which achieve a variation in terms of absolute height. Reasonable expectations must include the prospect of such variation and rather than a height limit in absolute terms.
Since the proposal departs from the acceptable outcome, it is necessary to consider whether it nevertheless meets the corresponding performance outcome (P01). That performance outcome relates not just to building height, but scale and form as well (matters discussed later). It provides:
“P01
Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and:
(a) is consistent with the anticipated density and assumed infrastructure demand;
(b) is aligned to community expectations about the number of storeys to be built;
(c) is proportionate to and commensurate with the utility of the site area and frontage width;
(d) is designed to avoid a significant and undue adverse amenity impact to avoid affecting adjoining development;
(e) is sited to enable existing and future buildings to be well separated from each other and to avoid affecting the development of an adjoining site;
(f) retains the significant views of Mt Coo-tha or the Brisbane River.
Note – development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.
Note – development that is over scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape.”
The first note to that provision refers to pressure on transport network, public space or community facilities. In this regard, OO(3)(m) of the TANP Code provides that:
“Development achieves a height and density that makes efficient use of land, but does not overburden local transport, infrastructure, public space or community facilities”
OO(3)(m) did form part of the appellant’s issues, but was not one of the central provisions. The proposal does achieve a height and density which makes efficient use of the site and, for the reasons discussed later, does so without having an overburdening effect. Indeed, it would make a positive contribution to public space whilst locating residents conveniently relative to the transport network (without the network thereby placed under pressure) and without otherwise overburdening infrastructure.
The concern in the second note is not one which would be realised by the subject development, which has only one vehicular access to each frontage, locates parking in the basement levels, and gives over much of the site, at ground level to publicly accessible open space.
Insofar as height is concerned, attention focused on P01(b) and the identification of community expectations in relation to the number of storeys to be built. It was submitted, for the appellant, that community expectations would largely be informed by reference to the 15 storeys specified in the table which, it was submitted, substantially sets the reasonable expectations of the community.
I accept that community expectations would be at least in part informed by the table,[29] but they cannot necessarily be limited to the height specified in a table referred to only in an acceptable outcome. It would be reasonable to expect development up to the number of storeys specified and possibly something greater on a performance based assessment.[30] Senior counsel for the appellant accepted,[31] in the course of oral submissions, that the “person in the street” would regard some excess above 15 storeys as being a potential, but not the extent of excess here proposed.
[29]See Norfolk Estates Pty Ltd v BCC [2016] QPEC 009 [33].
[30]Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64.
[31]T12-17.
Expectations may also be affected by other existing and approved development in the locality. The area is rapidly transforming with the development of new high-rise development, but there is nothing to which one could point in this case which would support a community expectation of the number of storeys proposed by the co-respondent for this site.
It was submitted, for the co-respondent, that whilst the table might be the start of an assessment of community expectations, it is far from the end of the matter. It was pointed out that the 15 storey height specified in the table applies to all land in the sub-precinct. It was submitted that community expectations as to height must also be informed by the designation of this particular site both as a landmark site and as a catalyst site, which, it was contended, “conveys something above the ordinary, particularly when coupled with the major centre zoning.” It was further submitted that, in practical terms, to achieve visual prominence, as a landmark site, in this locality and having regard to other existing, approved and likely future development in the area, development on the subject land will need to exceed 15 storeys and that, as a consequence, it is “unrealistic for the community to expect that the height of development on the subject land would be limited to 15 storeys.”
The height of the proposed development may, in context, assist in enhancing it as a landmark (a matter discussed later) but, as was pointed out for the appellant, there is nothing in the provisions relating to the landmark site designation, the catalyst site designation or the major centre zoning, which gives rise to an expectation of development on this site being to the number of storeys proposed. Indeed, as was pointed out for the appellant, there are other neighbourhood plans which provide for some specified increase in maximum height for landmark sites, but that is not the case with respect to the TANP Code. That does not mean that landmark sites can never exceed the height specified in a table referenced in an acceptable outcome, but neither the landmark site nor the catalyst site designations in this case provide the basis for an expectation of development to the height of this proposal.
Expectations, insofar as they are affected by the table, would also take into account what it specifies for other sub-precincts of NPP-001. Whilst 15 storeys is the greatest height specified in the NPP-001c sub-precinct applicable to the subject site, there are greater heights specified for other sub-precincts of NPP-001. In particular, for sub-precinct NPP-001b, a height of up to 20 storeys is specified, and for NPP-001a up to 25 storeys. Further, the overall outcomes for NPP-001 include that “Sherwood Road accommodates the tallest buildings in the precinct.” Hence the height of the subject proposal is not only substantially greater than specified in the table for the sub-precinct within which it falls, but it is also significantly greater than is provided for in the table for sub-precinct NP-001b, and it also rivals the likely height of buildings for that part of the precinct which is intended to accommodate the tallest buildings.
It was pointed out, for both the respondent and the co-respondent, that the heights specified for the other sub-precincts in the table are not inviolate, must be read with OO(3)(h) (discussed later) and do not prohibit tall buildings elsewhere. That may be so, but the specified heights for those sub-precincts sit uncomfortably with the notion of a reasonable expectation of buildings up to the number of storeys here proposed in sub-precinct NPP-001c.
Even if reasonable expectations are not limited to 15 storeys, I do not consider that the height of this particular proposal is aligned to community expectations about the number of storeys to be built. It therefore does not meet P01 in relation to height.
That is not however, the end of the matter. CP2014 permits compliance to be achieved by meeting the purpose and overall outcomes of the code. Relevantly to height, OO(3)(h) of the TANP provides:
“Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.”
That provision admits of the prospect of development occurring, consistently with the overall outcome, where it exceeds a height which is consistent with community expectations, provided there is both a community need and an economic need for the development. Need is considered later in these reasons, but three things should be noted about this provision.
First, it requires a community and economic need “for the development” rather than specifically for the amount by which the number of storeys exceeds community expectations. Secondly, demonstration of a community and economic need does not entitle an applicant to approval. There is a residual discretion. As was submitted for the Council:
(a) if it can be demonstrated that both a community need and an economic need are present for the development, that then permits a balancing consideration to take place;
(b) the community need and economic need do not have to be specifically demonstrated for the amount which is not “consistent” with the amenity and character, community expectations and infrastructure assumptions for the relevant precinct, sub-precinct or site;
(c) nor does the community need and economic need have to be specifically demonstrated for the amount which, for example in the case of building height, the proposed development exceeds the building height specified in an acceptable outcome;
(d) community need and economic need must be for “the development” – meaning the totality of what is proposed;
(e) the balancing consideration that a demonstration of both community and economic need opens up, is a balancing not just of the community need and economic need against amenity impacts – it is a balancing consideration of all positive and negative attributes of the proposed development (for example, particular community benefits might weigh in favour of approval even where a proposal is not consistent with the community expectations);
(f) it is not correct to construe the overall outcome as meaning that if community need and economic need are established, a development that is not “consistent” should or will then be approved – there is no presumption – establishing community need and economic need simply enlivens a balancing exercise as described above; and
(g) there is a wide discretion.
The proposal’s relative merits (apart from need) are otherwise discussed in the course of these reasons and in my view warrant the exercise of discretion favourably to the proposal.
Thirdly, whilst the provision states that a site will “only” be developed at a greater height, scale and form where there is community and economic need, such provisions of a planning scheme, whilst deserving attention,[32] cannot render nugatory the statutory discretion to approve notwithstanding conflict with the provisions of a planning scheme. Senior counsel for the appellant accepted as much.[33] The matters relevant to that discretion are discussed later in these reasons. Even if there were a conflict with OO(3)(h), this is, in my view, an exceptional case in which the proposal warrants approval notwithstanding.
[32]Stradbroke Island Management Organisation Inc. v Redland Shire Council (2002) 121 LGERA 390.
[33]T12-35, 36.
Bulk and Scale
There are a number of provisions pleaded by the appellant which assert that the bulk and scale of the proposed development would be unacceptable. Of those provisions, the appellant submitted that the most significant is PO19 of the Centre or Mixed Use Code (CMUC).
PO19, and AO19, provide:
PO19
Development ensures that the building bulk and scale is consistent with the intended form and character of the centre, mixed use or local area considering:
(a) existing buildings to be retained;
(b) existing significant vegetation;
(c) significant infrastructure constraints;
(d) adjoining existing and proposed building heights;
(e) adjoining existing and proposed building setbacks and separation of building necessary to ensure impacts on amenity and privacy are minimised;
(f) building height transitions where required.
AO19
Development is contained within the building envelope for the site by applying:
(a) the maximum building height;
(b) building height transition requirements, where required;
(c) front, rear and side setback requirements;
(d) building separation requirements;
(e) car parking setback requirements;
(f) active frontage requirements for stand-alone shopping centres or shop or for development in traditional strip centres or corridors.
The proposed development departs from AO19, and so it is necessary to consider the development against PO19. It was submitted, for the appellant, that the proposal conflicts with the provisions for the following reasons:
(i) the bulk and scale of the proposed development is wholly inconsistent with the bulk and scale of Middenbury;
(ii) inconsistency with the height of the appellant’s house and the approved adjoining multi storey dwelling at 20 Archer Street;
(iii) inappropriate setbacks and building separation both internal and external to the site, and
(iv) disregard for building height transition, particularly in respect of Archer Street.
As is apparent, the appellant’s arguments on bulk and scale overlap with its case about height.
It is obvious that the proposed towers are much larger and taller than Middenbury, the appellant’s residence and the approved multi-storey development at 20 Archer Street. That does not necessarily mean however, that the proposal conflicts with PO19. As was submitted for the council, PO19 does not require development to be consistent with the existing buildings to be retained or adjoining existing building heights. Rather, it requires building bulk and scale to be consistent with the “intended form and character of the centre…considering” the things in (a) to (f).
The intended form and character of the centre and, in particular, that part containing the subject site, is as provided for in the provisions of CP2014, most specifically in the TANP. It was contended, for the co-respondent, both during the development application stage and in the course of the appeal, that a greater number of units, across 5 buildings, could be developed on the site in a code assessable application. None of the hypothetical scenarios put forward however, were sufficiently resolved to demonstrate that they met all acceptable outcomes of all relevant codes. I have not placed weight upon those particular scenarios. It is evident however, given the size of the site, the development parameters (even as provided for in the various acceptable outcomes) including as to maximum building height and maximum tower site cover (50%) and the intentions of the Scheme for the site as otherwise set out in the TANP, that development of this site, as intended by the planning scheme, will be substantial, and indeed, of a substantially greater scale than the appellant’s residence or Middenbury or the approved multi-unit development at 20 Archer Street. Further, as to the bulk of the towers, it should be noted that the horizontal dimensions of the towers (which range from between 31.6m and 32m) are comfortably within the 40m figure specified in AO1.4 of the TANP.
The height of the proposed towers does not speak of over-development in the sense of trying to fit too much development on the site. Rather, when regard is had in particular to the very low site cover,[34] it speaks of a proposal which arranges development in a more vertical form, with a building height that would not reasonably have been expected, rather than too much development or development which is otherwise too bulky in its form.
[34]T5-76. Note also the relatively low plot ratio relative to recent approvals in the Toowong Centre. See exhibit 75 and exhibit 6, para 5.5.3(i).
That is not to say that existing and proposed development is to be ignored for the purposes of PO19. It is to be considered, but for the purpose of ensuring that building bulk and scale is consistent with the intended form and character of the centre. That is considered later, as are the matters of setbacks, building separation and height transitions. I accept that there is a level of conflict with PO19, not least by reason of height, but for the reasons stated herein, I am satisfied that the level of conflict is not accompanied by any undue impact.
Scale and form are also dealt with in PO1 of the TANP. It refers to the intended outcome for the precinct and seeks development of scale and form which, amongst other things:
· is proportionate to and commensurate with the utility of the site area and frontage width;
· is designed to avoid a significant and undue adverse amenity impact to adjoining development, and
· is sited to enable existing and future buildings to be well separated from each other and to avoid affecting the development of an adjoining site.
The proposal takes advantage of its generous site area and frontage width. Building separation and amenity impact are considered later and I am satisfied that the building separation is adequate and results in no undue impacts.
Building separation
Building separation is dealt with in PO25 of the CMUC and PO8 of the multiple dwelling code (MDC). Of those, only the former is included in the appellant’s central provisions. The provisions are in very similar terms. PO25 of the CMUC (together with the relevant AO) provides as follows.
PO25
Development ensures that the separation of buildings within a site and to an adjoining existing or future building which includes a residential dwelling:
(a) is consistent with the form and character intent for the local area;
(b) is located to provide residential amenity including access to natural light, sunlight and breeze;
(c) provides a degree of visual privacy via site planning and design without a reliance on fixed screening;
(d) reasonably addresses and considers the amenity of adjoining residents and future development potential.
AO25.1
Development ensures that the building separation within a site and to adjoining buildings is in compliance with Table 9.3.3.3.E.
AO 25.2
Development ensures that the building separation to an adjoining residential building:
(a) complies with Table 9.3.3.3.E; or
(b) positions the primary balcony or private open space to street or rear;
(c) offsets balconies or habitable rooms so they are positioned outside the cone of vision of existing or approved habitable rooms or outdoor spaces; or
(d) uses moveable or adjustable screening to regulate privacy between lots or dwellings which do not exceed balcony screening acceptable outcomes.
Table 9-3.3.3.E provides:
Building height (storeys and m) Minimum building separation (m) Facing habitable rooms with windows or balconies Habitable rooms or balconies facing non-habitable rooms with windows or blank walls Non-habitable rooms with windows or blank walls Ground to 4.5m 3 1.5 0 if blank with no windows
1.5 if non-inhabitable with windows
2 storey to 7.5m 9 6 0 if blank with no windows
3 if non-inhabitable with windows
3 to 5 storeys 12 9 0 if blank with no windows
6 if non-inhabitable with windows
6 to 8 storeys 18 12 9 9+ storeys 24 18 12 Podium or roof terraces Located to achieve separation in accordance with the relative level of the podium or roof location as above, along with design elements to ensure the privacy and amenity of residents within the site and on adjoining or adjacent sites.
PO8 (and its acceptable outcome) of the MDC proceeds as follows:
PO8
Development separates buildings from existing or future buildings within a site or an adjoining site to:
(a) be consistent with the form and character intent for the local area;
(b) protect residential amenity including access to natural light, sunlight and breeze;
(c) provide visual privacy to reduce the need for fixed screening.
AO8.1
Development provides building placement and design that:
(a) complies with Table 9.3.14.3.F; or
(b) positions the primary balcony or private open space to face the street frontage or rear boundary or adjoining public open space;
(c) offsets balconies or habitable rooms so that they are positioned outside the cone of vision of existing or approved habitable rooms or outdoor spaces.
Refer to Figure g and Figure h.
Note – This is demonstrated by a site context plan that includes adjoining and adjacent buildings and strategies to address separation issues.
Note – Considered site planning and design and strategies such as offsetting balconies, the location of private space, selective screening or other design elements can reduce building separation requirements.
AO8.2
Development with a secondary private open space or balcony used for drying or services is located to the side boundary with fixed screens.
Table 9.3.14.3F is as follows:
Building height Minimum building separation (m) Facing habitable rooms or balconies Habitable rooms or balconies facing non-habitable rooms or blank walls Non-habitable rooms or blank walls Ground and up to 4.5m 3 1.5 1.5m or where built to boundary walls permitted – 0.0m 2 storeys and up to 7.5m 9 6 3 3 to 5 storeys 12 9 6 6 to 8 storeys 18 12 9 9+ storeys 24 18 12 Podium or roof terraces Located to achieve separation in accordance with the relative level of the podium or roof location as above, along with design elements to ensure the privacy and amenity of residents within the site and adjoining or adjacent sites is not negatively impacted
Note – Separation distances are intended to protect amenity and provide for private open spaces on upper levels that do not require screening for privacy.
Note – Considered site planning and design and strategies such as offsetting balconies, the location of private space, selective screening or other design elements can reduce building separation requirements.
Mr Richards (the architect engaged by the appellant) approached the matter on the basis that, since the proposed towers exceed 9 storeys they must, in order to meet the acceptable outcomes, have a separation, at all levels, of at least 24m. As Mr Peabody (the architect engaged by the respondent) pointed out, adoption of the acceptable outcome, particularly construed in that way, would severely reduce the development potential of many in-fill sites. Reference to Drawing JER 02A, prepared by Mr Richards, shows that adoption of a 24 m separation (and allowing for retention of the view corridor between Middenbury and the river) would leave a relatively small proportion of the site remaining. Mr Richards accepted that on his approach, the area left for development of, say, a 15 storey development, would be very severely constrained[35] and that application of the 24m creates what he described as an “onerous” constraint on development.[36] That is difficult to reconcile with the intent of the planning scheme concerning the efficient use of land. I note that the high-rise Aspect development does not provide separation distances on the land as envisaged by Mr Richards’ approach.
[35]T6-7 L 18, T6-9 L 24.
[36]T6-9 L 38.
AO8.1 of the MDC directs reference to Figures g and h. Figure g is as follows:
It suggests that table 9.3.14.3F is to be applied in a staggered, or ‘wedding cake’ configuration. That is, the 24 metre does not apply until level 9. A reduced separation is envisaged below that. Table 9-3.3.3.15 should be applied in a harmonious way.
To the extent that the acceptable outcome is not adopted, attention turns to the performance objective. The appellant relied upon the evidence of Mr Richards to the effect that the building separations would cause amenity impacts for residents both internal to the site and on adjoining land.
The 3 towers proposed on the site are reasonably well separated. The separation between Towers A and B is 34.6m at the narrowest part of the towers and 21.5m at the widest part of the towers. Whilst the same dimensions are 35.1m and 21.5m respectively in the case of Towers A and C,[37] Mr McKerrell described the separation as generous. Mr Peabody’s assessment, which I accept, is that:
“I consider there is an acceptable distance between the 3 towers elements to afford visual privacy between apartments in different towers which is not dissimilar to the relationships of other tower development in Brisbane.”
[37]Exhibit 7, p 10.
Mr Chenoweth also did not consider the proposed buildings to be unacceptably close to each other.[38] There was no significant concern raised about access to light, sunlight and breezes for units within the proposed development. I consider that Mr Richards’ concerns for amenity of residents on the site reflect an overly conservative assessment.
[38]T2-69.
Insofar as separation from buildings on adjoining properties are concerned, a note to table 9.3.14.3 states that considered site planning and design can reduce building separation requirements. In this case the tapered design of the towers and the incorporation of a foyer means that the base of the towers are further separated from buildings on adjoining sites and there will be no units of the towers which directly face habitable rooms or balconies of existing or approved development from level 9 and above. The lowest habitable levels in the towers are well above the roof of the appellant’s property. They are vertically as well as horizontally separated.[39] Only some units on a few levels in tower A will face the approved development at 20 Archer Street and those are well below the 9th storey.[40]
[39]T2-63, 64, 67 (Chenoweth).
[40]I note that the council’s approval package contained some provisions about screening (Condition 18) which could be varied or augmented in other conditions imposed by the Court if it were thought appropriate.
A note to table 9.3.14.3F states that the separation distances are intended to protect amenity and provide for private open space on upper levels that do not require screening for privacy. There would be no need for screening for privacy on the upper levels of the proposal. The potential impact upon the amenity of adjoining residents, particularly the appellants, is considered later and would not, in my view, be undue. Consistency with the form and character intent for the local area is considered later in the context of the design issues and, in my view, is established. The performance objectives are met.
Setbacks
There are a number of provisions of CP2014 which relate to setbacks. The appellant relies upon PO2 and AO1.2 of the TANP Code as part of its central provisions. Another “central provision” is OO(3)(k) which speaks of “appropriate” building design using, amongst other things, setback.
Reference was made to Table 7.2.20.3.3.C. of the TANP Code which sets out minimum side building setbacks within the centre zones as follows:
Any development in the zone Up to 8 storeys 0m 3m for non-residential
3m for residential (5m if windows of habitable rooms are orientated towards the boundary)
Podium 0m 0m (5m if the windows of habitable rooms are orientated towards the boundary) Tower 5m 5m (8m of the windows are orientated towards the boundary)
10m where adjoining a low-medium density residential zone
If the 8m setback were applied to Tower B then the area of encroachment is some 19-26m2 on each level between 5 and 22 (there is a variation because the building is shaped). Application of the 10m setback to Tower A would yield an encroachment area of 41-65m2. In both cases the encroachment is for a length of approximately 10.5m. The setbacks are greater below level 5. The tapered base of the towers achieves a much greater setback at ground level. By comparison, reference to the table reveals that the podium of a tower-over-podium design approval could have a 0m or 5m setback depending on whether it had windows of habitable rooms orientated towards the boundary.[41]
[41]See exhibit 6, pp 124, 138.
Two things should be noted in relation to the table. First, it is referenced in an acceptable outcome. Despite the reference to “minimum” setbacks, the non-adoption of a setback referred in an acceptable solution does not amount to conflict with the planning scheme.
Secondly, the table has a note which provides:
“Setbacks on catalyst sites as identified in Figure a are to be determined through a structure planning process.”
Accordingly, even the table, read in isolation, does not apply the stipulated minimum to the subject site.
Turning to the performance outcome,[42] it was submitted, for the appellant, that the proposal is in conflict because of its impact on amenity. That is considered later and, for the reasons given, I do not consider that there would be a significant and undue impact associated with the setbacks. The performance outcome is achieved.
[42]PO1 of the TANP Code.
Infrastructure
Infrastructure is referred to in OO(3)(h) of the TANP Code, extracted earlier when discussing height, and in the following 2 provisions of the TANP Code:
[131]Exhibit 7, p 6.
As Mr McGowan said:[132]
“Coronation Drive in the vicinity of the subject site has a fairly low quality streetscape being dominated by traffic and the fairly inactive podium levels of the Toowong Village, and having no discernible consistency (in terms of building scale, rhythm or permeability). The subject site as it exists and when it accommodated the ABC headquarters would have made little positive contribution to the streetscape.”
[132]Exhibit 7, p 16.
The subject proposal represents a significant improvement. As Mr McGowan went on to say: [133]
“the proposal by contrast will present a highly permeable and attractive frontage which will invite people into the site (and the expansive commons on offer) and will reconnect them with Middenbury and the river, thereby creating a distinct memorable sense of place. While such openness may be somewhat unusual for an inner urban location, it will work in this instance where the scale and significance of the site (and the quality of the proposed public realm) justify deviation from the norm”.
[133]Exhibit 7, para 30.13.
As was submitted for the co-respondent, the proposed development will create its own attractive streetscape, especially in relation to the open space that will incorporate the fig trees adjacent to Coronation Drive. Middenbury will also positively contribute to the streetscape and Middenbury, in its final form, will provide some activation of Archer Street. The proposal will, I accept, positively contribute to the streetscape and its vibrancy and attract activity and pedestrian movement from the street into the site. As has already been noted, the respondent’s approval package contained conditions[134] requiring streetscape works to the road reserve pavements of the site’s frontages to both Coronation Drive and to Archer Street, with the former to be treated as a sub-tropical boulevard. The proposal also features high quality design and amenities including to the waterfront which, together with the streetscape, will provide a direct and tangible linkage between Toowong and the river.
[134]Condition 25.
The proposal would, I am satisfied, contribute to a safe streetscape and pedestrian environment. It proposes only 1 vehicular crossover on each street frontage and would provide a pleasant environment which would not only be enjoyable but, for the reasons discussed earlier in the context of the traffic issues, safe as well in relation to the interaction of pedestrians and vehicles. The streetscape improvement works have been referred to. The respondent’s conditions package also required pedestrian lighting for the full street frontage of the development.[135]
[135]Condition 24.
The proposal is not consistent with PO2(b), which contemplates a frontage with highly active built form with specified features. It was submitted, for the respondent, that PO2(b) should be understood as referring to activation where buildings are proposed on the streetfront, rather than as requiring such an approach. It seems to me however, that the provision requires activation in a particular way. Whilst the subject proposal does not achieve those things in the way contemplated by PO2(b), as was submitted for the co-respondent:
“In any event, with respect to PO2(b) the subject proposal will provide a highly active frontage to Archer Street and Coronation Drive. It will be active in the sense that the subject land will be activated by significant residential population coming and going, by visitors enjoying the open space and river connection and Middenbury, and by cyclists, pedestrians and runners moving through the subject land. This activation will give the site a vibrant public sense of place. The site with its resident population, bicycle path, footways, public spaces and access to the river will indeed be highly active and this will be obvious from the external street frontages.
There will be significant levels of activity on the proposed bicycle path through the site which will provide a safe and convenient means of access through the subject land for cyclists.
Pedestrian movement through the site will also be safe and convenient providing connection to the Toowong major centre core or, indeed, the open space along the river.
The combination of the pedestrian and cyclist activity will serve to provide a high degree of activation along the internal ‘arcade’ and the frontages of the site.”[136]
[136]Exhibit 24, p 5, para 8.
The towers are obviously not of human scale, nor are they located on the street frontage. Rather, the street frontage would be relatively open and would not be at all pedestrian unfriendly. It would invite pedestrians to enter the site for the publicly accessible open space, the (human scale) Middenbury and the facilities otherwise to be offered on site.
The proposal does find itself in some level of conflict with PO2, but exhibits significant merit in the way that it addresses the streetscape.
Building transition
It was submitted, for the appellant, that the proposal finds itself in conflict with CP2014 by making no attempt to step down the height of the towers to provide transition.
Reference was made, in the outline of submissions for the appellant, to PO3 and A03 of MDC. PO3 provides, relevantly, as follows:
“PO3Development for a large style multiple dwelling contributes to neighbourhood structure and integrates with the existing neighbourhood through:
…
(e)building height and setback transitions to an adjoining existing dwelling house and areas of lower density residential development.”
The acceptable outcome provides that a development on a site of this size will be in accordance with a structure plan. The issue about the absence of a formal structure plan has already been dealt with.
It may be accepted that the building height of the proposed towers proximate to the appellant’s property do not feature a step-down or transition. It must be remembered however, that a significant height differential is to be expected, given that the appellant’s land, which is within the High Density Residential Zone, adjoins land in the Major Centre Zone and the Toowong Centre Precinct. The potential amenity impacts on the appellant’s land have been examined and found not to be undue. Further, PO3 of the MDC does not form part of the appellant’s central provisions.
PO21 of the CMUC Code, which is one of the appellant’s central provisions provides relevantly, as follows:
PO 21
Development… where sharing a common boundary with… premises in the low-medium density residential zone… provides buildings that are reduced in bulk and form to provide a transitional form of a compatible scale which protects the amenity of lower density residential areas bordering centre or mixed use areas by:
(a) stepping down in height and scale;
(b) minimising impacts including those from overlooking and visual dominance;
(c) maintaining adequate levels of natural ventilation and light penetration to a habitable room, balcony and private open space.
AO 21.1
Development… where sharing a common boundary with premises in the low – medium density residential zone… provides a building height transition which complies with:
…
(b) the following:
(i) the building height within 10m of the common boundary is no more than 1 storey greater than the maximum acceptable outcome for building height on the adjoining site;
(ii) the building height within 20m of the common boundary is no more than 2 storeys greater than the maximum acceptable outcome for building height on the adjoining site;
(i) all structures, except adjoining boundary fences, set back a minimum of 4m from the common boundary;
(ii) an acoustic and visual screen fence of 2 m height is provided on the common boundary.
Insofar as the subject site is concerned, PO21 applies only to transition to the adjoining property at 20 Archer Street which, unlike the appellant’s property, is in the Low-Medium Density Residential (up to 3 storeys) Zone. The tower closest to 20 Archer Street does not step down in height and scale towards the boundary with the adjoining property but that property:
(i) is owned by the co-respondent;
(ii) has, notwithstanding its zoning, been approved for a 9 storey development, and
(iii) will not be unduly affected by the proposal.
The extent of conflict by reason of not adopting building height transition in the towers is not accompanied by an unacceptable adverse amenity impact. The conflict is not grave.[137]
[137]T10-16, 17 (Perkins).
Centre legibility
It has already been observed that the proposed towers are higher than would reasonably be expected and indeed, would rival the height of development likely to be developed in Sherwood Road, which is intended to accommodate the tallest buildings in the precinct in order to improve legibility, and reinforce the primacy of the centre and its role as a transit oriented centre.
The advantages of adopting a more vertical building form, in terms of providing a landmark and freeing up open space at ground level, have already been referred to. It is relevant to also consider however, the extent to which development of the height proposed on the subject site would affect the purposes for which the TANP provides that Sherwood Road it to accommodate the tallest buildings.
Whilst the three towers on the subject site might rival the height of a particular future building or buildings in Sherwood Road, it must be remembered that it can reasonably be expected that sub precinct (a) generally may be developed, in accordance with the maximum building height table, to 25 storeys on sites of 1500m² or greater. It would be reasonable to expect a cluster of tall buildings, reinforcing that sub precinct, within the core of the centre. I accept Mr Chenoweth’s evidence to the effect that the proposed development of three residential towers on the banks of the Brisbane River will not detract from the Toowong Centre but will instead reinforce it and act as a marker.[138] Similarly, Mr McGowan said as follows:[139]
“Mr McGowan believes that if and when there is an intensification of taller buildings along Sherwood Road (whether or not they are taller than the proposal) the intensification itself (along with other ques such as architectural expression, streetscape, building grain, activation, etc.) can be employed to establish the primacy of the Sherwood Road and the centre of the precinct. While the proposed development, as a prominent landmark development, will always attract the attention of people travelling through or around the locality, that does not mean it will upset any desired structure for the area. To draw a comparison, it would be clear that, although there are a number of tall and identifiable buildings around the periphery of the CBD (1 Williams Street, Meriton Towers at Herschel Street (Infinity) and Ivory Street (Soleil)) there is a primary core (Queen Street and Reddacliff Place) that is expressed through visually accessible open space, a legible street hierarchy, a finer grain of built form, architectural expression and so on.”
[138]Exhibit 15, p 9.
[139]Exhibit 7, p 19.
Mr Schomburgk[140] saw the proposal as consistent with the reasons, stated in OO(4)(d) for the intent that Sherwood Road accommodate the tallest buildings in the precinct (i.e. to improve legibility and reinforce the primacy of the centre and its role as a transit-orientated centre).
[140]T9-4.
I am satisfied that the height of the buildings proposed on the subject site would not undermine the objectives sought to be achieved by the provisions of the TANP which state that Sherwood Road accommodates the tallest buildings in the precinct.
(viii) Quality of the public open space
Although the proportion of the site to be given over to public open space is unquestionably generous, Mr Richards was critical of its quality. In that regard he:
(i) suggested that the open space would have a private rather than public character;
(ii) suggested that it featured too little vegetation and shelter and would not maintain the “natural quality” of the waterfront experience, as required by PO11(e) of the TANP Code;
(iii) took issue with the amount and configuration of open space provided at the river’s edge, and
(iv) questioned the ease of access, across the site to the river, including by reference to the need to access different levels.
In that regard:
(i) the contention that the open space would be perceived to be of a private character is, I am satisfied, without substance. The open space is to be retained in private ownership and control, but:
A. titling arrangements will not likely be on the minds of those who would otherwise be attracted to use the space;
B. conditions of any approval will require the area to be publicly accessible. The respondent’s approval package included conditions[141] requiring the provision and maintenance of “unimpeded and safe 24-hour public access through the subject site, including urban common areas…” and the installation and management of a suitable system of lighting, to operate from dusk to dawn, within all areas where the public may gain access.;
[141]See Conditions 6, 10, 72 and 77.
C. the nature and extent of the space, its openness, its permeability and its accessibility from the public streets, the public cycleway through the site and the provision of a range of facilities, for the public’s use and enjoyment, make it unlikely that potential users would perceive it as having a private character. As Mr McGowan said:[142]
[142]Exhibit 24, para 8.
“Further, in response to Mr Richards’ concerns about the publicness of the open space, the open spaces designated as public open spaces will, in my view, clearly feel public as they will be associated with the more public aspects of the site (Middenbury and the proposed café, the street edge and the heritage listed fig trees, and the river). Further, the site will be highly activated by the significant residential population coming and going to the site, by visitors enjoying the open space and river connection, and by cyclists, pedestrians and runners moving through the site. This activation will give the site a vibrant public sense of place.”
Similarly, as Mr Chenoweth attested[143]
[143]T2-13.
“I think it will be very much a public site given that the – and I think the public open space will be usable – be usable because it’ll have a – it will attract use through having the heritage building, through having cafés and outdoor restaurants. It’ll have the river front; it will have a sculpture garden; it will have a bikeway going through it so everything about the areas designated as public open space, I think, will be successfully used by people and successfully distinguished from those areas that are private open space. So I think they’ve achieved the primary aim of dealing with public open space associated with residential buildings which is getting that demarcation clear as to what’s private and what’s public and I think they’ve done that very well here.”
D. Mr Richards’ concerns that the relationship of the towers with the open space will lead to confusion as to the public nature of the open space, or make people uncomfortable about its use by, for example, residents of the villas claiming “some dominion” over the open space between their villas and the river is, I am satisfied, unfounded. I accept Mr Peabody’s evidence that there is no incompatibility.[144] Mr McGowan’s evidencewas that the proposal: [145]
“…has generally located private spaces above the public ground plane (on top of the podiums). The mere fact that a residential tower adjoins an open space does not, in my view, confine that open space as private and belonging to the tower, as implied by Mr Richards. In instance where the line between public and private space may be less well defined, the distinction can be made sharper by a range of detailed design responses.”
(ii) the use of predominately hard-surfaced open space should hardly be a surprise given OO(3)(n) of the TANP Code which requires development to enhance the public realm and pedestrian cycle movement with a network of parks, arcades and plazas (e.g. predominately hard surfaced open space used by the general public). In any event, as Mr McGowan pointed out in his further statement of evidence,[146] the proposal incorporates a mix of hard stand plaza areas, turfed park spaces, garden beds, as well as numerous feature trees and screen trees throughout the site. Insofar as the natural quality of the waterfront experience is concerned, the proposal is to protect and enhance the riparian vegetation.[147]
(iii) It was submitted, for the appellant, that the towers are too close to the riverfront and ought to have left more of that area for open space. As has already been noted, complaint was also made, in the context of the heritage issues, about the alleged lack of respect for Middenbury which is towards the south-western part of the site, further removed from the river’s edge. AO11(a) refers to the provision of a “riverside” open space area of a minimum of 3000m² and with a minimum Brisbane River frontage of 40m. That is an acceptable outcome only. It is perhaps debatable whether that envisages all of the 3000m² to be on the River’s edge. I note that AO11(d) by comparison, refers to public access to the entire Brisbane River “frontage” for a minimum width of 12m (into which there is some incursion in the case of the proposal). In any event, so far as the performance outcome is concerned, it is evident that the proposal provides an extensive amount of public open space on this riverside site, including substantial open space adjacent to the river’s edge. The public open space otherwise appropriately and beneficially extends to other areas of the site including around the retained, refurbished and repurposed Middenbury and the sculpture park.
(iv) the design approach deals with the differing levels of the site and would achieve a sense of permeability through the open space areas of the site. As was pointed out for the appellant a pedestrian using the north-western access on Coronation Drive, will not see all of the open space at the levels down to the river’s edge. Such a person would however, be aware of the location of the river, see the opportunity to walk towards it, using the generous open space and will have a sense of connectivity.[148] Traversing the open space does involve negotiating level changes. The appellant focused on the route from the north-western Coronation Drive access which involves, amongst other things, the use of stairs and a section which is not open air. I accept however, Mr Peabody’s evidence that the proposal represents a clever solution which integrates the levels and still brings you from Coronation Drive or Archer Street up to Middenbury and then back down to the river frontage”[149] and Mr McGowan’s assessment[150] that “despite substantial variation in topography across the site, the design has managed to maintain a sense of openness and connectivity between the variety of open spaces.” I also note that the proposal includes equitable access arrangements for those with disabilities.
[144]T5-72.
[145]Exhibit 24, para 9,
[146]Exhibit 24, p 4.
[147]See exhbit 1, p 109, area 13.
[148]T5-72, 73.
[149]T5-75.
[150]Exhibit 24, p 9.
The appellant made a point that not all of the open space may be able to be traversed (e.g. areas of planting or where there is riparian vegetation to retained) but, as McGowan pointed out,[151] that is not uncommon for areas of public open space.
[151]T2-99.
The public open space is, I am satisfied, generous in terms of quantity and appropriate in terms of configuration and treatment. I accept Mr McGowan’s assessment,[152] that the open space contribution would be a significant resource for the Toowong community and that the public access to the river will be a significant attraction to many and effectively enhance the amenity in the entire core precinct, by reconnecting Toowong with the river.
[152]Exhibit 24, para 7.
Visual amenity, character and integration with the centre and surrounding land
The experts called by the respondent and co-respondent saw benefit in the distinctive, striking, bold and interesting form of the proposal. Mr Richards, on the other hand, saw it as underlining his view that the development does not fit with its context. Further, he saw it as a private residential development beside the centre, rather than an extension of the centre onto the subject site.
The proposed towers are for residential uses, but the site will not be, and will not be perceived to be, a private residential development divorced from the centre. The ample public open space, with its improvements and facilities, including the repurposed Middenbury, with its café/restaurant and information facilities, the sculpture park, the café closer to the riverfront and the extension of the bicycle way through the subject site will, as Mr McGowan stated, clearly give a public feel to much of the site and achieve vibrancy and activity across the site. The extent to which the development, through its permeability, offers a physical connection between the Toowong Centre and the Brisbane River has already been noted. As Mr McKerrell pointed out however, it will also establish a visual connection with the centre to the Brisbane River, while the towers will provide a visual reference to the other principal sectors of the major centre at High Street and Sherwood Road.[153]
[153]T4-93.
Insofar as an integration with the surrounding area is concerned, it has already been noted that there is no call for physical integration (such as a shared vehicular access way or the like) with the appellant’s property, which is used as a domestic dwelling house, or to physically integrate with any other property. The proposal does however, for the reasons discussed, open up the site and integrate it with the surrounding area in terms of providing visual, cyclist and pedestrian access into and through the site.
Insofar as the character of the area more generally is concerned, it must be remembered that Toowong is undergoing a rapid transformation consistently with the planning intent for that area. Its built form is increasingly being characterised by high rise contemporary developments. The proposal will have a distinctive design, and be, as Mr McKerrell attested,[154] refreshing in terms of apartment building design, but that does not make it inconsistent with the emerging and intended character of the area. In that regard I prefer the opinions of Mr Chenoweth and Mr McGowan to those of Mr McDonald, who gave too little weight to the changing character of the area and the potential for the proposal to fit with that intended and emerging character.
[154]T4-44.
Site planning generally
The merits of the proposal are not limited to the architectural quality of the particular towers. As Mr McKerrell and Mr Peabody emphasised, the proposal involves not only innovative architecture but also meritorious master planning across the site.
The site is one which challenges the designer to respond to a range of opportunities, constraints and town planning aspirations. These include dealing with the site, its topography (including changes of levels), road frontages and context, whilst realising the potential of the site to achieve efficient development and rising to the challenge of the site’s landmark and catalyst designations in a way which provides a prominent visual marker of architectural excellence, respects Middenbury and its view corridor to the river, retains the fig trees adjacent to Coronation Drive, does not place an undue burden on infrastructure or create undue traffic impacts offsite, accommodates the onsite vehicular movements and car parking without them dominating the ground level, extends the bicentennial bicycle path through the site, makes a positive contribution to the public realm, connects the centre to the river, provides activity and vibrancy and does not unduly adversely impact on its neighbours.
As Mr Peabody said, the design approach:
· opens up the site to the Coronation Drive and Archer Street frontages, offering a welcome relief to the existing hard edged built form;
· establishes a new connection, both physical and visual, between the Toowong Centre and the Brisbane River;
· establishes a new dynamic public open space;
· provides a landscape context for Middenbury which can be viewed, accessed and enjoyed by the greater community.
In the course of his testimony he said:[155]
“At the ground plain, in my opinion, this is just an outstanding solution to an incredible site. The fact that, as I’ve noted, you know, approximately 50 per cent is handed over to public open space. Beforehand - and I’ve lived in Brisbane for 20 years – but I was not aware Middenbury existed as a building. Obviously, it was enveloped by the ABC site. Obviously the ABC site has been demolished, or the buildings have been demolished and suddenly that Middenbury is there for the public to actually perceive and understand and now participate in and use and that, I think, is an excellent gesture of the site which, I suggest, may not be achievable if you took a podium-and-tower-type approach. I would be concerned that it would become – the site would become more congested whereas, at the moment, it’s incredibly permeable. You – standing on Coronation Drive and, your Honour, I understand you would have had a site visit, but standing on Coronation Drive you don’t see the river. You see the river if you look north along Coronation Drive and you know the river’s there. I think anybody who’s in that destination knows that the river’s there but what this site offers is an opportunity that there’s a sense of permeability and there’s a connect with across the river to the bank on the West End. You see through the site. You know that there’s a vast distance there and, even when you imagine where the towers will be, that permeability will exist and it leads your eye and it leads your, you know, connectivity to the river and to the river edge and the riverscape which includes the West End and the buildings on the other side and I think that’s just a fantastic solution. It’s – I described – I’m not too sure who to, but I describe this as almost like a – a gap in your smile, insofar as in a reverse way. This site offers – by being so open, it’s actually like a gap along the – the built form edges of Coronation Drive, which, in itself, is – and to the – to the north of the site, you know, you’ve got the – the fences of the existing residences and the like and to the south you’ve got, you know, a higher-density sort of podiums building up to the new building that’s under construction at the moment, which was referenced to earlier, the Aspect site, and – which is at that node of the – the intersection and so this – the – the – the approach of the design, in my mind, has really offered an opportunity, just a breathing space, a bit of elbow room, and – and to that extent is attributed to by, I guess, the vision of the design to create slender, taller towers and give away a lot more land to open space, public and private open space.”
[155]T5-55.
Further, the proposal deals appropriately with its context and its neighbours and indeed, the other matters referred to above. Mr McKerrell’s conclusions,[156] which I accept, include:
[156]Exhibit 6, para 10.1.
(b) the master planning of the site has been skilfully executed with the creation of a substantial landscape to showcase the refurbished Middenbury (with extension) by introducing a conveniently located and accessible bikeway and pedestrian access;
(c) the master planning has introduced attractive public and private access pathways around the site and to the river’s edge to capture important vista;
(d) the siting of the three residential tower structures is thoughtfully conceived so as to minimise adverse effects from shadowing and overlooking onto the neighbouring properties;
(e) the development further showcases the striking tower designs with sculptural organic forms commencing at the ground level and rising to the rooftops with considered and innovative architectural design elements to complete the composition.
I consider that the height of each tower is acceptable and the architectural composition formed by the three towers on the site complimented by the emphasis given to Middenbury and the generous public landscaped areas, visitors and access to the river, to be an exciting and complimentary development which will create considerable interest and support.
…
(g) the proposal has been thoughtfully planned for residents, visitors and service vehicles so as to remove the parking utility areas from public view.”
In his testimony, Mr McKerrell said:[157]
“Well, your Honour, I think the authors have done an excellent job in developing a scheme for this site – a proposal for the site. I’m really impressed with the way that they’ve handled the master planning, the way that they dealt with those issues I mentioned on Friday such as the access points, the dealing with the access to the river, the sensitivity and the respect for Middenbury, the open space to the site and dealing with the whole concept of the site, and that is not to include a podium but to open it up so it’s a landscaped site to get a greater vision into the site to actually open up Middenbury to the public, to actually invite the public into the site. And then, as well as that, I think they’ve done a very good job with the heights of the buildings and the association back to the major centre. Together with that I think that they’ve set out to do and have done very well putting this site as a landmark development. They have striking buildings; they are prominent buildings and I think that they will stay prominent whilst the Toowong Centre is, as we know it, at the 15-storey mark according to the code. As well as the architecture, as I mentioned before, I was really impressed to see that architecture. It’s a totally different approach to what we had been adopting for apartment buildings and I thought that was refreshing. I thought that was going to be a good catalyst insofar as resurrecting development and making it more exciting to develop in this precinct just outside of the city frame. So I have lots of – I can see lots of merit in the scheme. I think it’s a quality scheme. It’s – I can’t compliment it enough, your Honour. I think it’s been a difficult site to deal with and they’ve done an extremely good job…”
He described the architectural design and site planning response in relative terms as “top of the class”.[158]
[157]T5–46, 47, see also T4-87, 88.
[158]T5–47.
I agree with Mr Peabody and Mr McKerrell that there is substantial merit in the way in which the designers have responded to the diverse opportunities, constraints and aspirations of the site in its context.
The conflict and grounds
There was debate about the nature and extent of any conflict with CP2014. These reasons have discussed the central provisions, alleged conflict with which the appellant relies upon, in the context of the matters to which they relate. It is unnecessary to catalogue the findings which have been made and which are recorded earlier.
I am satisfied that the proposal does not conflict with the Strategic Framework. Indeed, for the reasons given earlier, the proposal supports some aspects of the Strategic Framework.
I am also satisfied that, notwithstanding the large number of provisions with which the appellant alleges conflict, there are many provisions of CP2014 with which the proposal is either consistent or positively supports or achieves. Those provisions have been discussed in the course of these reasons.
I am also satisfied however, for the reasons which have been given, that although the conflict is not as great as was alleged by the appellant, there is a level of conflict with a number of provisions, or parts of provisions of relevance to the assessment of the subject application. The level of conflict is, I accept, significant.
I have found that the proposed towers are of a height which exceeds reasonable expectations,[159] that the built form does not have an active built form edge to the streetscape or at ground level (in the case of the towers) and the development does not contain a balanced mix of uses or include a significant component of non-residential centre activities. It has insufficient non-residential uses in order to avoid a finding of some conflict on that account.
[159]Although I have also found that there is an economic and community need – see OO(3)(h).
Those matters are influenced by the adoption of a tower-in-plaza design response, rather than the tower-over-podium approach. As was submitted for the respondent and co-respondent however, the appellant’s design response serves useful purposes, in the public interest, in the present context.
The decision to adopt a more vertical (higher and relatively slender) design response does not speak of over-development. Rather it is a different configuration, which results in much greater space at ground level than would otherwise be expected. Site cover is much lower than what would reasonably be expected. Further, the tapered base of the towers has the effect of further opening up the site at ground level, even within the building footprint.
The co-respondent has not only achieved a highly open site at ground level, but proposes to turn much of that to the public benefit, by designating it as public open space, with improvements to be incorporated. This open space:
(i) is much greater in area than could be expected, given the acceptable outcomes in the TANP;
(ii) is to be improved with pedestrian and cyclepaths, open spaces, landscaped areas and a sculpture park in what will be an area of high amenity;
(iii) makes use of the generous public open space to make a substantial positive contribution to the public realm;
(iv) is to be complemented, at ground level, by the retained, refurbished and repurposed Middenbury (with its publicly accessible interpretive centre, café and restaurant) and a separate café closer to the river’s edge, for use by the public;
(v) will create an attractive and pedestrian friendly environment and a high degree of permeability through the site and to the river’s edge, and
(vi) will be active and vibrant.
Further:
(i) the relative openness of the proposed development, at ground level, assists in achieving a response to Middenbury which respects its prominence and provides an appropriate setting for that heritage place, and
(ii) the greater permeability through the site, to the river’s edge, assists in extending the centre, physically and visually, to the river.
The adoption of a more vertical built form, in conjunction with the site location, building siting and adoption of a bold, interesting, architectural design of the highest quality by a world renowned architect also capitalises on the potential to achieve city-wide prominence as a visual reference.
For the reasons discussed earlier, it is difficult to see how the community would be substantially advantaged by the provision of substantially more non-residential uses, particularly if those were provided, as the appellant would have it, in a podium spread further across the site. That is only likely to reduce the scope for providing the beneficial public space which is offered by the subject proposal. Further, for the reasons previously discussed:
(i) The need for further retail or commercial uses at this time is not particularly great and can be accommodated elsewhere, particularly in those parts of the centre which TANP provides should be the focus of such uses.
(ii) The proposal will otherwise generate activity and vibrancy.
(iii) The proposal will otherwise improve the streetscape, and produce a pedestrian friendly environment.
(iv) Would support the transit-orientated nature of the centre, locating a significant resident population within the centre proximate to a range of transport facilties
The respects in which the proposal is otherwise in conflict with the planning scheme have been discussed. Any conflict is not accompanied by an undue effect. The amenity impacts of the co-respondent’s proposal have been assessed and found to be acceptable.
Senior counsel for the appellant accepted[160] that the quality of the architecture is relevant, although he submitted that it should not carry the day.
[160]T12–36.
Economic and community need have been discussed earlier. For the reasons given, there is a need for the development potential of the site to be realised and a need for the development proposed. The development would also be the instigator of further activity within the centre.
The merits of the proposal generally have been discussed earlier and are substantial.
On balance, I am satisfied that there are sufficient grounds, in the public interest, to approve the proposed development notwithstanding conflict with the planning scheme.