Blue Sky Pty Ltd v BCC
[2010] QPEC 116
•18 October 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Blue Sky Pty Ltd v BCC & Anor [2010] QPEC 116
PARTIES:
Blue Sky Pty Ltd
(Appellant)And
Brisbane City Council
(Respondent)And
Stephen John Pellegrino
(Co-Respondent)FILE NO/S:
BD 2324 of 2004
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
18 October 2010
DELIVERED AT:
Townsville
HEARING DATES:
23, 24, 25, 26, 27, 30 November 2009 and 1 December 2009; (Final written submission 28 December 2009).
JUDGE:
Durward SC DCJ
ORDERS:
1. Appeal dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING - CULTURAL HERITAGE VALUES - PARK LAND - New Farm Park - Development application to build café, kiosk, restaurant and function room facility on lease area within park boundary - Heritage values - Heritage Place Code - whether size, scale and intensity conflict with heritage values of an historic early 20th century metropolitan park
ENVIRONMENT AND PLANNING - ARBOREAL ISSUES - PRECAUTIONARY PRINCIPLE - historic trees and palms - value and protection - presence of tree pathogen "phellinus noxious" - whether trees already infected or will be at risk of infection by work associated with development proposal - whether application of precautionary principle appropriate
ENVIRONMENT AND PLANNING - AMENITY - noise - patron, service & delivery vehicles, functions - impact upon adjacent residential area
ENVIRONMENT AND PLANNING - NOISE MANAGEMENT - whether noise management strategies sufficiently address noise impact on amenity - 'MANAGEMENT STRATEGY FOR FUNCTIONS' - whether proposal effective and enforceable
ENVIRONMENT AND PLANNING - TRAFFIC - traffic flow impact on adjacent residential area - non-residential traffic in short cul-de-sac medium density residential street - whether amenity impacts - PARKING - application of parking requirements of City Frame - whether demand on parking impacts on park values - whether impact on adjacent residential area - whether impact on internal ring road of park outside lease area
ENVIRONMENT & PLANNING - CONSTRUCTION OF PLANNING SCHEME - CONFLICT - SUFFICIENT GROUNDS - whether conflict with Planning Scheme - whether sufficient grounds to justify approval despite conflict
LEGISLATION:
City Plan 2000 Ch 3, Ch 5, Heritage Place Code (2003 & 2007), TAPS Policy, TAPS Code, Park Code, Transport Access Parking and Servicing Code
Queensland Heritage Register
Integrated Planning Act 1997 ss 3.2.3, 3.5.14, 4.1.52, 4.4.(5A)CASES
Harderan Pty Ltd v Logan CC [1989] 1 QdR 524; Body Corporate for Kelly's Beach Resort v Burnett SC & Ors [2003] QPELR 614; Bon Accord v Brisbane CC & Ors (2008) 163 LGERA 288; Lane v Gatton SC [1988] QPLR 49; Esteedog Pty Ltd v Maroochy SC [1991] QPLR 7; Telstra Corporation Ltd v Pine Rivers SC [2000] QPELR 350; Leatch v DGNP & WS [1993] 81 LGRA 271; Mansell v Maroochy SC [2008] 122; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast CC (2007) QPELR 356; Aldi Stores v Redland CC [2009] QPEC 27; Weightman v Gold Coast CC (2003) 2 Qd R 441; Woolworths Ltd v Maryborough CC (2006) 1 Qd R 273; Westfield Management Ltd v Pine Rivers SC & Anor (2004) QPELR 337; Luke & Ors v Maroochy SC & Anor [2003] QPELR 447; SDW Projects Pty Ltd v Gold Coast CC & Anor [2007] QPELR 24; Koerner & Ors v Maroochy SC & Ors [2004] QPELR 211; Handley v Brisbane CC & Anor (2005) QPELR 80; Kotku Education & Welfare Society Inc v Brisbane CC & Ors [2005] QPELR 267; Vacuum Oil Company Pty Ltd v Ashfield Municipal Council [1956] LGRA8; Attorney General v Cooma Municipal Council [1962] LGRA 111; Broad v Brisbane CC & Anor [1986] 2 Qd R 317; Comkey Pty Ltd v Caboolture SC & Ors [2006] QPELR 399; Tadpoles Early Learning Centre v Noosa SC [2008] QPELR 487;Leda Holdings Pty Ltd v Caboolture SC & Ors [2006] QCA 271; Atkinson v Ipswich CC & Anor [2006] QPELR 550; Hedley Constructions Pty Ltd v Caboolture SC [2006] QPELR 46; Green v Brisbane CC & Anor [2005] QPELR 121; Gold Coast City Council v Hanwell Pty Ltd [2005] QPELR 198; Elborn v Esk SC & Ors [2008] QPELR 24; Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404; Craig Securities Pty Ltd v Brisbane City Council [2006] QPEC; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Rosswallmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; Retirement Properties of Australia v Maroochy Shire Council [2008] QPEC 61
COUNSEL:
M Hinson SC and J D Houston for the Appellant
T Trotter for the Respondent
Ms S C Holland for the Co-RespondentSOLICITORS: Quinlan Miller & Treston for the Appellant
Brisbane City Legal Practice for the Respondent
Deakins for the Co-Respondent
The appeal is about a refusal by the respondent to approve a Development Application made by the appellant for the establishment of a café-restaurant-function room facility in an historic park in Brisbane, New Farm Park. The history of the park and the history of the process that led to the making of the Development Application are important in giving a context to the issues in the appeal.
Judgment Index
The Issues in the Appeal Page 5
History of New Farm Park Page 5
The Tender and Negotiation Process: an overview Page 8
Background to the current proposal Page 12
The Proposed Development Page 13
The Development Application Page 15
The Decision Notice Page 15
Grounds of Refusal Page 15
Grounds of Appeal Page 16
10. Changes to the Development Application Page 16
11. The witnesses on the hearing of the appeal Page 16
12. The Evidence of Mr Boyle Page 17
13. The Town Planners Page 20
14. Planning Provisions Page 22
15. The Heritage Issues Page 26
16. The Amenity Issues
(a) The evidence of co-respondent Mr Pellegrino Page 32
(b) Evidence of Other Neighbours Page 33
(c) Assessing the evidence of other neighbours Page 33
(d) The Noise Issues Page 34
(e) Noise management Plans: discussion Page 37
(f) The Traffic Issues Page 39
17. The arboreal issues Page 46
18. The tree pathogen issue Page 48
20. Construction of the Planning Scheme: discussion Page 52
21. Conflict with the Planning Scheme: discussion Page 53
22. The proper approach to resolving conflict Page 55
23. Codes and Planning Scheme DEO’s Page 55
24. Discussion: Is there conflict? Are there ‘sufficient grounds’? Page 57
26. Conclusion Page 60
27. Orders Page 60
Appendices
Extract of Grounds of Appeal.
"Management Strategy for Functions".
The issues in the appeal
The issues in the appeal are those matters of disagreement identified in the joint reports of the experts, in the holistic context of the conduct of the appeal and the range of matters which properly flow from the matters of disagreement. In summary the issues are as follows, with some matters being common to a number of the issues:
Town Planning, which involves multiple issues including Parkland issues.
Heritage values, an amenity issue as much as an issue about heritage per se. It focuses on the scale and intensity of the proposed development but includes the issue of conflict with the Heritage Place Code.
The other amenity issues, which include noise issues as they affect the Dixon Street locality, generated from service and delivery vehicles, staff movements, patron movements and function operational noise. It also includes traffic issues including traffic flow and parking in or about Dixon Street, and the ring road within the park, the introduction of non-residential traffic in Dixon Street and its environs and an issue concerning the applicability of the parking requirements for the City Frame.
Arboreal issues, including the presence of the tree pathogen "phellinus noxious" and other risks to the health and stability of trees in the park in and around the lease area.
Construction of the planning scheme, issues of conflict, sufficient grounds and any application of the precautionary principle.
History of New Farm Park
The history of New Farm Park is an important contextual theme in this appeal, because much of the evidence reflects the history of and the values ascribed to many aspects of the park.
New Farm Park is an historic and long established green space – created in 1914 - at the eastern end of Brunswick Street, New Farm, bordered by Brunswick Street, Sydney Street and the Brisbane River respectively on three sides and comprising an area of 15.0076h. It adjoins the Brisbane Powerhouse arts, dining and entertainment precinct and an urban renewal area of former industrial sites. It has significant cultural, heritage, historical, flora and community values. It is heritage listed by the Respondent. As at the date of the Development Application it was not heritage listed by the State, but it has since been entered on the Queensland Heritage Register, in December 2004.
The land use in and around New Farm Park has changed over a long period of time, from its early use as an aboriginal resource and subsequent use as a convict farm, as tenant farms (hence the name ‘New Farm’), a racecourse, the site of elite residences, some suburban sub-division and finally as park land. Those historical features arguably demonstrate the evolution of Queensland's history and the process of the creation of open spaces in Brisbane as the population of the area has grown over time. Redesigns of the park since its establishment arguably demonstrate changes in ‘parks philosophy’ and use over time, with a shift in emphasis from gentile Edwardian ornamental gardens and leisure activities, to barbecues and jogging.
Nevertheless, there are numerous aspects of the park that have longevity and have provided a continuum of the original and evolving values of the park, not the least being the flora, particularly the Moreton Bay fig trees. Many of the values were the subject of evidence in the hearing and I will refer to them in the course of this judgment.
New Farm Park was one of a number of parks or open spaces created by Brisbane City between 1913 and 1925. The original plantings of trees included over 100 jacarandas and poincianas, bougainvilleas and palms. Within a few years of its creation, the park had also been planted with rose bushes, fig trees and Chinese elms.
In 1915 a kiosk and a bandstand were constructed in the park. They were built in the Federation Queen Anne style, of timber with a Marseilles terracotta-tiled bell-cast hip roof. The park was one of the first new parks created by the Brisbane City Parks Superintendent, Henry Moore. The bandstand still exists. The kiosk burnt down in 2000. Until that event, the bandstand was one half of the last surviving kiosk-bandstand related group in Queensland.
From 1948 landscape architect Harry Oakman conducted the first major redesign of the park with a new rose garden layout being developed by 1953. He added new pedestrian paths inside the main drive, lookouts over the rose gardens and planted new trees and shrubs, while maintaining most of the original tree plantings.
A library was built in the park in 1975 (in the north east corner, on Sydney Street) despite local opposition to its construction and the loss of open space. From any planning and aesthetic point of view, that development was a gross error of judgment by those responsible for the decision.
The Queensland Conservation Council released a report in 1975 that apparently was critical of the condition of parks in Brisbane, one of the criticisms being that there were too many buildings, sports clubs, car parks and roads all of which were said to defeat the purpose of parks as open spaces.
Since a 1991 concept plan was developed for the park, jacarandas have been planted around the oval, a rain forest and a half basketball court have been established behind the library, more picnic tables and barbecues have been added near the river and a path was built between the kiosk site and the playground (between the croquet lawns and the drive ring road). The park has been linked to the Brisbane Powerhouse precinct, new entrances to the park have been made and existing entrances upgraded. Interpretative history signs have been added at places in the park. Two tennis courts and a shelter were built on one half of the croquet lawns after 2001. A new ferry terminal has been built.
The current park use includes both active and passive use. Active use ranges from sports use, such as soccer, football, croquet, tennis, basketball and boule, to social events and festivals, playground use, weddings, and cycling and jogging. More passive uses include picnics, strolls through the gardens, listening to brass bands every second Sunday, and tourists visiting to witness the jacarandas bloom.
The basic Edwardian layout of the park, designed by Henry Moore, remains largely intact today along with remnants from the late 1940s/early 1950s garden redesign undertaken by Harry Oakman. Various structures and rose gardens have also come and gone, but many of the earlier tree plantings remain.
New Farm Park currently contains a wide variety of trees, both mature and recent plantings, including jacarandas, poincianas, figs, palms, and coral trees. The central lawn within the jacaranda drive contains the remnants of the post-1948 rose garden arrangements, and an area of rain forest has been planted behind the library. In the shade of the trees near the kiosk site is an understorey of tropical plants, a character of park planting that is a distinct aspect of Brisbane's historic parks and large gardens.
In addition to the mature jacarandas and fig trees around the loop drive, other mature tree plantings of note include the various lines of palms, the weeping figs near the river, the banyan figs incorporated in the playground, the Queensland bottle trees shading the Brunswick Street barbecue area, poincianas along Brunswick Street and elsewhere, and remnants of Oakman's massed plantings of frangipanis and bauhinias to form groves in a "wild woodland" manner.
New Farm Park and Locality
The Tender and Negotiation Process: an overview
The current proposal for a new and larger kiosk was made in 2004.
The respondent originally invited tenders for the design, construction and operation of a replacement facility - café, kiosk, restaurant and function room. Two tenderers responded, including the appellant. This process has some relevance in the context of the changes in development proposals over time. That is the extent of relevance: it is the proposal under appeal that is for assessment, but the development history provides a contextual framework.
The respondent’s "tender Documents" (providing for a closing date of 22 June 2001) include a number of statements. Firstly, in the "Notice to Tenderers":
In Clause 1:
"Brisbane is a city where outdoor living and dining can be enjoyed all year round. Nowhere could these activities be better realised than in New Farm Park, a place where park land space, greenery and visual delight combine uniquely to offer the pleasure of relaxation in natural surroundings.
This project presents an opportunity for the establishment and operation of a restaurant/kiosk type facility within the park.
The Council is seeking Tenders for:
(i) the Design and Construction of a Restaurant within New Farm Park in accordance with AS 4300-1995…";
In Clause 4:
"The restaurant/kiosk facility will provide a commercial opportunity to the successful tenderer…”;
Secondly, in the Functional Specification Cl 2 two building options were provided:
"(a) a reconstruction of the original kiosk building on the original kiosk building site at New Farm Park with the addition of a 100 seat function room, or
(b) construction of a contemporary restaurant/kiosk building on the site of the proposed lease with provision for functions requiring 100 seats"; and
The proposal is to include an indoor dining space (new function room in the case of a proposal under item 2 (a) for 100 people seated (nominally) for functions). Outdoor dining capacity is to be 100 seated. This would ideally allow for separate café and take-away eating areas all utilising existing shade"; and
[t]he proposal is to show how all contemporary building proposed respects the heritage nature of the park and the kiosk including the sub-tropical climate of Brisbane. The building should be understated and modest in proportions. The building should not be air conditioned …"
The specifications required connection between the place and the park, ability for functions to easily spill out onto the open areas of the proposed lease area, an improved presentation of the kiosk from Dixon Street, noting that it was currently a "back of house" appearance, and recognising the plans to upgrade the Dixon Street entrance and the residential redevelopment, and that the building entrance be easily assessable from Dixon Street, the park ring road and the children's playground.
However, the respondent resolved to reject the tender process and to negotiate with the appellant. In October 2002 the respondent resolved a contract with the appellant by way of a lease to design, construct and operate a café, kiosk, restaurant and function room, without seeking competitive bids from industry, pursuant to s 46.2 City of Brisbane Act 1924. On 15 October 2002 the respondent resolved in favour of the Blue Sky Company Pty Ltd on the basis of an offer to provide new premises of 200m2 size.
The resolution of the respondent noted that "improvements to the lease access from Dixon Street have been requested by the applicant." I note that Mr Boyle (a Director and the principal of the appellant) said in his statement of evidence that this was not a request but simply an acceptance of the respondent's plans to do such work, as had been referred to in the tender documents.
In the "Proposal in Brief" in the introduction to the development application, prepared by the respondent for the respondent and the appellant, the proposal is described, so far as is relevant, as follows:
"This report describes the proposed development, making comparison with the original kiosk and discusses the impact on New Farm Park and the locality.
The building for the Summerhouse is designed in a modern lightweight, open style that sits lightly on the ground nestled amongst mature fig trees so that the trees and parkland remain dominant in the landscape.
The new Summerhouse will operate similarly to the operation of the pre- fire kiosk. The area of each component is similar to that of the pre-fire facility. The difference lies in the size of the kitchen, which is enlarged to cater for functions to operate at the same time as the restaurant/café. Previously the kitchen was too small to cater for both areas concurrently.
The building's foundation will be situated clear of an Energex easement that traverses the development site and proposed lease area.
Although the proposed redevelopment is principally the same as the pre-fire facility in its operation, it has been determined that the changes are sufficient to be defined as a Material Change of Use. Therefore, pursuant to the New Farm & Teneriffe Hill Local Plan the redevelopment requires development approval with Impact Assessment. Subdivision by lease requires Code Assessment."
Under the heading "1.2.2 - Land Use" the application contains the following statement:
"The area surrounding New Farm Park has been significantly affected by urban renewal with new medium density residential complexes becoming increasingly available …, the establishment of the Brisbane Powerhouse Centre for the Live Arts and the on-going redevelopment of the CSR site. This has further emphasised New Farm as a mixed-use environment with the park as a key focus as well as a regional recreation and cultural destination … The experience that this provides contributes towards a sense of community and vibrant cosmopolitan atmosphere within the area. The green space provided by the park and river views further contributes to a high visual amenity and community focus."
The primary vehicle access was described as the Brunswick Street entrance. The Dixon Street entrance was a secondary access. In their report "Vehicle & Pedestrian (Internal Site Movement)" is described as follows:
"The ring road is used as a major movement thoroughfare through the park and is shared by both vehicular and pedestrian traffic.
Car parking spaces are designated within the park along the ring road with 51 marked spaces and 9 disabled spaces. Spaces are also available along the sides of the ring road. While these spaces are not formally marked it provides sufficient space for approximately 175 vehicles, making a total capacity of approximately 226 spaces.
The ring road and car parking areas are made to a suitable urban standard and are well shaded and screened from neighbouring residential areas by the Park's landscaping.
In addition, a vehicular access point off Dixon Street services not only the Summerhouse but also the adjoining croquet lawns and tennis courts. This access is constructed with a compacted gravel surface and was formed in 1914 in time for the construction of the kiosk …"
In City Plan 2000 the components of the original proposal are described as follows:
· "Kiosk in a Park: A light structure used for selling food, drinks, souvenirs, fishing bait and other small item convenience goods, and hiring equipment such as bicycles, canoes, fishing rods or binoculars." (Emphasis by the author of the report).
· "Restaurant: A use of premises for providing meals or light refreshments on a regular basis to members of the public for consumption on or off the site, e.g. Café, restaurant, theatre restaurant, bistro, milk bar, coffee shop, tea room, takeaway outlet or fast food outlet." (Emphasis by the author of the report).
· "Convention Centre: A use of premises for conferences, public or community group gatherings, private functions, trade exhibitions/displays, and associated entertainment and catering, and occasional indoor sporting events." (Emphases made by the author of the report).
The author of the report was the City Design Department. The submission of a joint Development Application was at the department's suggestion and arose from the respondent's decision that a Development Application would be necessary. Mr Boyle said in his statement of evidence that the development application was lodged well after its completion because he wanted to finalise the lease arrangements with the respondent. A lease was not subsequently executed. Whether there is any enforceable agreement between the appellant and the respondent is not a matter for me to consider or to determine in these proceedings.
The report refers to "2.3.2 - Design Description: Integration with Surroundings" in the following terms:
"The design of the Summerhouse will provide easy access to a kiosk style refreshment outlet for park visitors in addition to restaurant/café and private function room facilities. To maintain the local amenity and focus of the park as public open space adjoining the Brisbane River, a low impact, unobtrusive building design that sympathetically inter-relates park and restaurant activities has been created. This has been achieved by:
· Limiting the proposed built form to a similar scale and footprint size to the original kiosk area and not adding to existing vehicle oriented spaces.
· Locating the proposed building in a similar location to the original kiosk within an existing building envelope between the adjoining public toilets and Merthyr Croquet Club.
· Using an open plan and transparent design that combines high cascading skillion roofs, fully translucent glass walls, light weight materials and a combination of semi and unenclosed spaces.
· Retaining and building between significant trees and incorporating additional landscaping to further blend the building into his surroundings and mitigate noise impacts.
· Maintaining an unenclosed open design to the dining area over the electrical easement to provide easy access.
These design outcomes ensure that the proposal is appropriate for the parkland/river setting that the built form does not visually dominate the surrounding area or physically reduce the availability of open space. Instead it enables it to have a more integrated presence within the parkland. It ensures that the recreational and cultural values of park and river are maximised."
The report describes the "Building Components" in the following terms: "The proposed design for the new Summerhouse consists of the following components: Café, roofed external dining area, open external dining area, takeaway servery, function room, kitchen and service facilities, and service yard."
The Development Application was made by the appellant and the respondent after the appellant (then known as Blue Sky Company Pty Ltd) won the right to develop the lease sub division, intended to be the subject of a 30 year lease.
Background to the current proposal
The original facility (a kiosk - "the Summerhouse") had been opened in 1914-15 and was destroyed by fire on 11 September 2000. It was replaced by a temporary facility in November 2000, subject to an agreement separate from the original lease agreement. Whilst referred to as a "kiosk" in the 1987 Town Plan and City Plan 2000, the original facility operated beyond the more modest activity of a "kiosk": "food and refreshments have been served for consumption elsewhere in the park and for consumption at the kiosk, either as casual dining or ceremonial occasions." (See exhibit 1 at page 10.)
The level of activity varied, depending on the business plans and success and successful operators. Prior to the fire in 2000, the Blue Sky Company Pty Ltd operated with the following components: kiosk building (kitchen, servery and indoors dining area), outdoors dining area, marquee, public toilets & metal storage shed. The latter three components survived the fire.
The temporary facility was described as operating from (exhibit 1 page 16):
· A small "demountable" building used as a combined kitchen and servery (35 m2).
· A new larger outdoors dining area, (635 m2) to replace the indoors dining area lost within the kiosk building and original alfresco dining area which has been sealed off.
· The marquee (135 m2) spared from the fire which continues to be used for private functions and for general dining use during periods of rain.
· The public toilets continue to be shared by the restaurant and park users.
· One of the metal storage shed (23 m2) remains in use in its original location.
· The park's public toilets (57 m2).
· A nearby picnic shelter that has been enclosed and is currently used as an additional storage shed (52 m2).
Prior to the fire the kiosk operated 9 am - 5 pm Monday and Tuesday, 9 am - 11.30 pm Wednesday to Friday and 8 am - 11.30 pm Saturday and Sunday.
Entertainment was described as piped music and for functions, specialty music such as string quartet, DJ and live bands.
Servicing was described as follows: "Servicing deliveries and waste removal was conducted from the ring road and from the rear of the kiosk building via the vehicle access via Dixon Street." (See exhibit 1 page 17).
The respondent resolved to lease an area in the vicinity of the original kiosk (now demolished and the site having been cleared and filled), to the appellant to re-establish the Summerhouse.
The Proposed Development
The proposed development is to be a purpose built facility providing a takeaway kiosk located at the front of the leased area and to open on weekends and school holidays to supplement other services. The takeaway service at other times is proposed to operate from elsewhere in the facility. It is intended to be accessible to park patrons without the need to enter the rest of the facility. The facility is to have a deck for casual dining or access to the kiosk and other areas with a capacity to seat up to 120 patrons. It is said to be similar to the capacity of the paved outdoor dining area (excluding the marquee) available in the facility operating from the Summerhouse. There is also a café restaurant to provide dining indoors with the servery forming part of the Bar. It is proposed to have a capacity for up to 80 people and to be open for breakfast, lunch and dinner. It has a dual capacity to function as a café during the day and a restaurant at night. A function room has been designed to accommodate 100 patrons seated or 140 standing up. It is designed to be capable of being fully enclosed and climate controlled. The kitchen and toilets are part of the facility so that in so far as toilet facilities are concerned the proposal is self-contained. Those facilities are situated between the Dixon Street area and the proposed function room.
The design is said to take into account existing trees in and around the lease area and an Energex power easement which runs across the lease area and the large fig trees are to be an integral part of the design of the deck and to reinforce the connection between the café and the park.
Design Development over time
Original LayoutLayout Post-Fire 2000
Proposed Layout 2003Current Proposal
The Development Application
A Development Application dated in March 2003 was made on about 11 December 2003 jointly by the appellant and the respondent for a Development Permit for a Material Change of Use, Reconfiguring a Lot (a lease sub-division) and a Preliminary Approval for Carrying out Building Work ("the application") on a lease area of 1,753m², being part of land described as Lot 102/SP102967 Parish of North Brisbane, 15.1075h situated at 137 Sydney Street, New Farm (“New Farm Park”), which is included in the "Parkland Area" classification in Brisbane City Plan 2000.
The Decision Notice
The Development Application was impact assessable pursuant to s 3.2.3 of the Integrated Planning Act 1997 ("the Act"). By letter dated 31 May 2004 the respondent notified the appellant of the decision to refuse the application (“the Decision Notice”).
The Decision Notice contends that:
· The types of uses proposed; and
· The intended scale of the development, conflict with the various components of the Planning Scheme in its full context and that its location, design and impacts are not appropriate or acceptable."
It is in this somewhat unusual context that the evidence in respect of the Development Application in this appeal falls to be assessed. It seems to me that the respondent, whilst an advocate of a development that incorporated more than just a simple refreshment "point of sale and service" but that nevertheless reflected the critical features of the type of facility and service that had previously had existed prior to 2000, found that the proposed development was too intensive and too expansive for New Farm Park. Hence it seems that the co-proponent of a development application proposal has become the opponent of what the application had proposed.
Grounds of Refusal
The grounds for refusal as set out in the Decision Notice were:-
"The council refused the application because the types of uses proposed, exacerbated by the intended scale of development, are contrary to:
(a) The intent of the Strategic Plan in relation to the Brisbane Green Space System, the Parkland Area and the Park's Precinct of the New Farm and Teneriffe Hill Local Plan; and
(b) The purpose and performance criteria of the Park Code.
Furthermore, the application is not demonstrated by reference to the matters prescribed in City Plan (Chapter 3, Section 2.5.2 page 6) that despite the conflict with the intent of the City Plan, the location, design and impacts of this specific proposal are appropriate or acceptable."
Grounds of Appeal
An extract of the relevant grounds of appeal are at Appendix 1 to this Judgment:-
Changes to the Development Application
Changes to the Development Application were approved by order of Judge Brabazon QC on 02 April 2008 as minor changes pursuant to s.4.1.52(2)(b) of the Act. The proposed development is now in accordance with plans described in an affidavit of Mr Cook filed on 26 March 2008. The changes mainly addressed concerns about the potential impact of the built form of the proposed development on existing trees adjacent to the building envelope; and added five on-site car parking spaces.
Mediations were conducted post-April 2008. Further refinement of the plans, to reduce the risk of impact of the proposed development on the root systems of existing trees adjacent to the development were proposed in a further affidavit of Mr Cook filed on 20 November 2009. The parties concurred in proceeding on the basis of the plans as described in the latter affidavit.
The witnesses on the hearing of the appeal
Affidavit evidence was tendered on behalf of the appellant’s principal Mr Boyle, the Co-Respondent Mr Pellegrino and occupants of neighbouring residential properties Mrs Bickle, Mr Flaskas, Mr Lauritz and Ms McInally. Mr Boyle was cross-examined.
The expert witnesses provided reports and testimonial evidence in six areas of speciality:
Town Planning -
§ Mr Kay (Appellant)
§ Mr Vann (Respondent)
§ Mr Evans (Co-Respondent)
§ (Joint Reports April 2008 and February 2009)
Amenity issues
(a) Noise Issues –
§ Mr Rumble (Appellant)
§ Mr Kamst (Respondent)
§ Mr King (Co-Respondent)
§ (Joint Reports October 2006, February 2009, March 2009 and August 2009)
(b) Traffic Issues –
§ Mr Kleimeyer (Appellant)
§ Mr Beard (Respondent)
§ Mr Holland (Co-Respondent)
§ (Joint Reports November 2006 and February 2009)
(c) Heritage Issues –
§ Mr Riddel (Appellant)
§ Mr Scott (Respondent)
§ (Joint Reports November 2007 and September 2008)
Arboreal Issues –
§ Mr Bishop (Appellant)
§ Mr Hobbs (Respondent)
§ (Joint Reports March 2009, July 2009 and September 2009)
Tree Pathogen Issues –
§ Dr Galea (Appellant) – two Reports.
§ (Joint Report September 2009)
The evidence of Mr Boyle
Mr Boyle is a Director and the principal of the applicant. He has had a long career in the hospitality industry. The details are appended to his statement (exhibit 10). He made observations about a number of historical and business planning matters:
§ history of the Summerhouse, so far as he knew about it.
§ negotiations with the respondent about the initial lease of the Summerhouse site.
§ establishment of his company.
§ tender process and lease negotiations that followed the September 2000 fire.
§ history, according to his knowledge, of the Dixon Street "cul de sac" upgrade.
§ lodgement of the joint Development Application and his contact with the respondent until the issue by the respondent of the Decision Notice.
§ operation of the temporary facility following the September 2000 fire.
§ average weekly/daily business projections.
§ business projections into the future. The weekly projections of patronage logically, it seems to me, start from a base lower than the peak in late 2000, growing through years 1, 5 and 10 from 2870, 3530 to 4035.
The tender and lease negotiations are referred to in an historical context. That is the only relevance of them. I have, of course, referred to them in a contextual sense earlier in the judgment. However, I regard any matters involving the tender process and the lease, beyond that historical context, to be outside my jurisdiction to determine in this Court: Harderan v Logan City Council [1989] 1 Qd R 524; Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404.
The early operational arrangements for the Summerhouse were such that in early 2000 there were about 2,000 to 2,500 patrons per week (averaged over time) and a temporary marquee was erected for individual functions as they occurred. By late 2000 (before the Summerhouse fire), the patronage had increased to about 3,000 per week, including those attending functions and a permanent marquee had been erected. By that time, the operating hours were Sunday 7 a.m. to 4 p.m., Monday 8 a.m. to 4 p.m., Tuesday to Thursday 8 a.m. to 11 p.m., Friday 8 a.m. to Midnight and Saturday, 7 a.m. to Midnight. The Brunswick Street gates were opened and closed by the respondent but Mr Boyle said he also had possession of a key for that purpose. After the September 2000 fire, the temporary facility was down-sized due to operational difficulties and eventually the take-away kiosk was all that remained.
The proposed operational hours, according to Mr Boyle, were stated to be ‘maximum’ hours of opening - subject to demand; Sunday to Thursday 8 a.m. to 11 p.m. and Friday and Saturday 8 a.m. to Midnight. Mr Boyle considered that staff would arrive or depart about an hour before opening or an hour after closing, other than those staff that might arrive or depart for operational reasons later or earlier respectively than those times.
Mr Boyle explained some misinterpretations in the Development Application regarding patron numbers, which I infer has arisen out of some misunderstanding what the patron numbers and their potential location within the premises actually permit. One example was a total of ‘510’ patrons in a Table at paragraph 2.8.3 ‘operational capacity’ in exhibit 1, that Mr Boyle described as a ‘misconception’. There may be some merit in that description because the words introducing the Table refer to concurrent operations in the several areas of the premises in the context of a ‘theoretical maximum capacity’ of patrons. He said that high traffic areas were not suited to the provision of seating. Hence his figures for seating being less than that estimated by Mr Beard. There had also been a change in physical dimension of the proposed premises over time.
He said that the proposal (so far as it was proposed at the time of the trial) was for two areas of the café, deck and function room to be operating at any one time. The numbers of patrons were limited to the maximum serving capacity of the kitchen but within each of those three areas were limited to a maximum of 80 in the café, 120 on the deck and 100 in the function room, including the veranda. In each case all patrons were counted as being seated). The kitchen capacity was for a maximum of 180 "plated" meal services. Where a function might be held with persons standing, other than being seated, the maximum number was 140 patrons which was an equivalent of 100 "plated" meal services. His expectation of the primary use of the function facility, which he said was projected to be 10% – 15% of his core business, was weddings, anniversary-type events and cocktail parties.
Mr Boyle referred to the seasonal fluctuations in patronage, winter being the low season and summer (especially in the weeks leading up to Christmas) the peak season. Sunday (followed by Saturday) was the busiest trading day of the week. I noted that this was contrary to the evidence of Mr Kleimeyer who regarded summer and winter as being equal. Mr Boyle said that the proposal was for one function per day (including midweek lunches), but inferentially perhaps including or substituting an evening function on the Friday, Saturday and Sunday, as I understand the evidence.
So far as access to the site is concerned, the proposal was to limit the Dixon Street access to service vehicles, staff and special circumstances, such as arrival and departure of a bridal party. Historically Dixon Street had been used for service vehicle access to the facility, but ceased in about early 2005 when the marquee and the kitchen were removed.
Mr Boyle described in his statement the "Management Strategy for Functions" document prepared with the input of Mr Kleimeyer. In his testimony, he agreed that the function facility would cater for all sections of the community, not just wedding parties. The object of moderating the behaviour of patrons involved the use of staff or security persons. The strategy of ‘escorting’ patrons meant to walk them to the lease boundary. Mr Boyle did not seem to me to have any convincing response to the obvious questions of how the moderation strategy was to work for patrons unwilling to comply with direction about their behaviour or be effective once the patrons had left the lease area, those questions having been asked in the context of the Dixon Street area as much as the ring road in the park.
Mr Boyle also referred in his statement to a number of the contentious issues that have arisen out of differing opinions expressed by expert witnesses. So far as is relevant he referred to the cul de sac in Dixon Street and his view that the respondent was obliged to construct it; and the gates at Brunswick Street, which he says historically were opened and closed in a way that facilitated and supported the trading hours of the business and that he expected that would continue. He said that in his experience most people used the gates and that sometimes the gates were opened early or not closed at all. He denied a suggestion that the gate key he had in his possession was for his use only and not for patron access and egress.
In so far as the floor area and patron numbers were concerned, the numbers were controlled by the kitchen operational capacity and by other operational needs, the implication being that overcrowding is contrary to good business practice and the necessity for staff movement and greeting of patrons tended against admitting patron numbers that exceeded kitchen operational capacity.
He said that the proposed taxi arrangements had been put in place in 1999 (including taxis use at late hours) but had not been utilised since the permanent marquee was removed by the respondent. Taxis in his experience used the Brunswick Street gates and access was via the ring road. The business proposal was that taxis would be directed to use that route and there was an expectation that the restaurant (that is, the business) would be the primary point of contact for patrons requiring taxis. Hence the use of the Brunswick Street gate and ring road by taxis could be controlled. Of course, this objective assumes that taxi drivers would follow directions and that the majority of patrons would use staff to order taxis.
Mr Boyle agreed that motor vehicle use far outweighed public transport use. The transport Survey was limited because it did not include the influence of variable weather. The residential locality of the 56 survey respondents showed that about 46% lived in outer suburbs of Brisbane or outside Brisbane. In so far as parking was concerned, he agreed that he could not influence the behaviour of drivers in respect of their choice of parking.
The Town Planners
The town planners, Mr Kay, Mr Vann and Mr Evans identified a number of issues in dispute:
Compliance with the relevant City Plan provisions.
The scale of the proposed development.
Hours of operation and consequent impacts on amenity.
Traffic issues related to parking and parking provision and service arrangements.
Impact on significant trees and their contribution to the cultural heritage significance of New Farm Park.
In so far as the relevant City Plan provisions were concerned, the town planners identified the strategic plan, parkland area, chapter 3 and the issue of whether the proposal was generally an inappropriate impact accessible development, the New Farm and Teneriffe Hill Local Plan, planning goals and the Park Code. They agreed that a commercial intrusion of the nature of the proposed development was not generally intended, except that a kiosk was envisaged in larger parks (such as New Farm Park) but on a very small scale.
They considered that a balance was required against the particular nature and role of a park serving a city wide function (such as New Farm Park) and against the historical use of the site for a kiosk/café and related purposes.
They agreed that activities in New Farm Park are not to be inconsistent with its predominant uses (park and recreational purposes) and are not to have unacceptable impacts on the amenity of the locality.
There was no inconsistency with the Parkland Desired Environmental Outcome 1; the New Farm and Teneriffe Hill Local Plan reinforced the themes considered by them (and referred to above by me) and recognised that a park such as New Farm Park had a significant role for visitors as well as for local residents; the Park Code in so far as AS-A2 was concerned was not complied with (because of the scale and nature of the facilities), although they differed as to the extent of this non-compliance; and New Farm Park Plan 2001 was not relevant to the Acceptable Solutions, but envisaged rebuilding of the café/kiosk and outdoor dining area, although not the function centre aspect.
The scale of the proposed development was beyond that which the City Plan generally envisaged in the Parkland Area. Multiple functions (for example, two weddings) utilising the available capacity could be held at the one time.
The originally proposed long hours of operation would have unreasonable impacts on nearby residents, particularly in Dixon Street and primarily in respect of the level of noise generated. They considered that there was likely to be some use of Dixon Street and those parts of the park around the facility by patrons and staff.
Parking was noted to be an issue primarily related to peak periods.
Their view was that City Plan intended to protect the contribution of the trees to the heritage values of the park and any significant impact on those issues by the proposal would be inappropriate.
Mr Kay did not agree with the view expressed by Mr Vann that the proposed development was of a "significant scale" or "higher intensity". He considered New Farm Park to be "a metropolitan park". Mr Evans had become involved after the initial meetings between Mr Vann and Mr Kay, but the issues in dispute remained the same.
Mr Kay considered that even though there was some non-compliance with the provisions of the City Plan, the proposal was nevertheless acceptable. He considered that the facility was a low scale replacement of its predecessor, in the context of the park as a whole. He agreed that there had not been approvals of this nature under City Plan 2000, the Roma Street Parklands Restaurant being state government approved and not requiring assessment under the City Plan, but nor had there been applications for such approvals.
Mr Kay considered New Farm Park to be major inner city parkland and it was designated as a Parkland Area under the City Plan. It was within the Brisbane Green Space System (map C of the Strategic Plan). He expressed the view that so far as the Powerhouse Complex to the northeast of the park, where there were live entertainment facilities and two restaurants, "for all intents and purposes, the Powerhouse Complex extends the range of recreational experiences offered in their New Farm locale". He agreed that the proposed development was adjacent to a Medium Density Residential Area (to the north and northeast) that had recently built houses and multi unit dwellings.
So far as scale was concerned, he said in evidence that the park was a metropolitan attraction and had diverse community, recreational and social use. He referred to the City Botanical Gardens, Mount Cootha Botanical Gardens and Roma Street Parklands as having restaurants. He considered the scale was small in terms of the parks overall area.
Mr Vann considered that the use of New Farm Park was primarily envisaged for its core park activities in a planning context, that is, in formal recreation and protection of heritage values.
He considered that there was conflict with the City Plan in respect of DEO 2 (commercial activities of significant scale in the park) and DEO 3 (restaurant and function centre use) which he considered did not constitute "informal and limited formal recreational, cultural and educational activity; he did not consider that the proposed development met the A5 or PC P2 (scale) requirement of the Park Code in respect of impacts of scale, cultural value, landscape biodiversity and commerciality.
He identified Planning Impact Assessable Criteria as being character, scale and intensity (noise, traffic and landscape were for others to determine). So far as scale was concerned, he considered the proposed development introduced "substantial new and intensive commercial activity in the park". He agreed that a kiosk was a commercial activity (in the context of DEO 2) but it was a matter of scale and "destination" use. He agreed that any change created impact but that it was a matter of whether it was impact significantly and adverse or unreasonable.
Mr Evans approached the matter from the view that there were several restaurants in the area or precinct. He questioned whether the proposed development was envisaged in the "recreational intent" of the park purpose. He considered there was conflict with the DEO’s 2 and 3 and with PC P2 of the Park Code. The proposed development did not promote the park's values in the Park Code and did not meet the intent of DEO 2: it had a commercial focus of a restaurant and function room and was not in his view, recreational. He did not consider that the maintenance and promotion, with minimal impacts, of parkland quality was met and that DEO 3 was not intended to provide the management and litigation of uses such as proposed. The scale of the proposed development he considered was beyond expectation. It was more likely to draw people for a facility focused activity rather than for a park associated activity.
Planning Provisions
The town planners agreed on the relevant provisions of City Plan 2000:
Parkland Area DEO2
Parkland Area DEO3
Park Code Purpose and P2
Section 25.2 of Chapter 3 City Plan
The town planners also agreed that the key tests to be drawn from City Plan in relation to the proposal are:
That activities in New Farm Park are not be inconsistent with its predominant uses particularly for park and recreation purposes;
That activities in New Farm Park are not to have any unacceptable impacts on the amenity of the locality.
The context in which the key tests are to be applied are, in essence, that the Planning Scheme intend intrusions of a commercial nature in parks, with the exception that a kiosk at a very small scale is envisaged in parks such as New Farm Park; that a balance should be struck between that intention and the particular circumstances of parks serving a city wide function, New Farm Park being within that categorisation; and that there be further balance against the historical use of the site in question for a kiosk or related purpose.
New Farm Park is a metropolitan park with a general use for the community providing a recreational and social facility. The history of the park is well appreciated from the references made in the course of this judgment and the historical use of the site of the proposed development has also been well canvassed.
Strategy 3.2.2.2 of City Plan 2000 requires the respondent to:
"Ensure a continuous supply and cater for a balanced range of community facilities, cultural, recreational and sporting opportunities, natural environments and attractive landscapes, to meet community needs through:
(c) facilities and infrastructure - high quality park facilities that respect each park's character and are appropriate for potential users …"
The respondent has submitted that it is not possible to conclude that the proposed development in any way "respects the park character of New Farm Park".
The Parkland Area: the park is within the Parkland Area classification and in assessing generally inappropriate impact assessable development, the proposal needs to show that it accords with the reasonable expectations and DEO's for the area in which the land is classified.
The intent of Parkland Area:
"[I]s for informal, open air recreation and outdoor cultural and educational activities, and may provide opportunities for informal sports or other events on a casual basis. Activities requiring permanent facilities such as youth clubs, may also be accommodated in this Area, but only where they are located on large tracts of land and the activity occupies only a small part of the surrounding parkland. The land is generally publicly owned."
The parkland DEO's are also critical: they are to provide "visual relief from the built environment and a retreat from developed areas"; and to serve "the recreational needs of the City's residents, workers and visitors on local, district and City wide scales"; and to provide "a wide range of informal and limited formal recreational, cultural and educational activities … Qualities valued by residents are to be maintained and undesirable impacts on surrounding land uses are minimised by appropriate location, design and management …" and adverse impacts on biodiversity values are minimised.
Section 2.5.2 provides that:
"In assessing generally inappropriate impact assessable development … the proposal will need to demonstrate that:
§ The character, location, sitting, bulk, scale, shape, size, height, density, design, external appearance of the proposal accords with the reasonable expectations and DEOs for the Area in which the land is classified.
§ The proposal has a positive impact on the landscape, senior quality and streetscape of the locality.
§ The proposal does not detract from the appearance, environment or amenity of the locality. These issues may relate to issues such as hours of operation, display of goods or release of any contaminate.
§ The proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of:
- on site and on-street parking
- number and type of vehicle movements
- manner of access to the site
§ The capacity of the road system and the locality is suitable for the proposed activity.
§ The site has a reasonable level of accessibility by all modes of transport, including pedestrian, cyclists, public transport and private vehicular access, that is appropriate to the proposed activity.
§ Negative community impacts are not generated, including impacts on:
- community identity, cohesion and cultural practices
- community health and wellbeing
- access to community services and facilities would require to support need
- personal safety
- housing choice; mix, cost and location - access to an employment and education."
The respondent submitted that with the possible exception of the capacity of the road system and the level of accessibility by all modes of transport, the proposal would otherwise seriously offend all of the other issues identified in s 2.5.2.
The New Farm and Teneriffe Hill Local Plan: this plan is part of City Plan 2000 and provides more focus upon land use and built form outcomes in the locality. New Farm Park is designated as a "landmark" and there is a desire to encourage the retention protection enhancement of such a designated area. Similarly, historical and cultural significance is a factor and specifically the Parks Precinct (s 3.5) provides that:
"It is intended that parks in this precinct (New Farm Park, Teneriffe Park, Merthyr Park and Wilson Outlook Park) be retained and enhanced as important public open space facilities for both active and passive recreation. The Merthyr Bowls Club and the New Farm Bowls Club are to be preserved as fundamental elements of the open space system serving the needs of the local community.
Proposals for development need to demonstrate compatibility with existing open space and recreational uses, serving local needs and public function."
The respondent submitted that the proposed development was at odds with the local plan.
The Park Code defines "kiosk" as "a light structure used for selling food, drinks, souvenirs, fishing bait and other small item convenience goods and for hiring equipment such as bicycles, canoes, fishing rods or binoculars."
The purpose of the Code is to:
§ "Ensure the development of parks makes a positive contribution to the community, the environment and the amenity of the area.
§ Ensure the development of parks does not cause a negative impact on the values of parks and the amenity of surrounding areas.
§ Ensure the development in parks is appropriate to a park setting.
§ Ensure that development does not alienate parkland from use by the general public."
The respondent says that the proposal does not maximise any park value and that it in fact degrades many other values.
In assessing Performance Criteria and Acceptable Solutions, the connection between the two should to be kept in mind: Craig Securities Pty Ltd v Brisbane City Council [2006] QPEC. It is said that an ‘holistic’ (my expression) approach to afford an understanding of the proper intent of the performance criteria is required (at [21] and [22]). The acceptable solutions to performance criteria do not envisage a building or structure of the nature of that proposed in this development.
The respondent in oral submissions contended that past use of the site was irrelevant in assessing the proposed development. The appellant in oral submissions contended to the contrary and said that historic use was analogous to similar use and was a relevant consideration. I was referred to Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, particularly at [29] to [31], although the past use was expressed in terms of previous ‘unlawful use’.
I do not think that the town planning issues can be determined without reference to the past use of the site. Indeed, I have already referred to the ‘contextual development’ process and to the history of New Farm Park as relevant matters in providing a framework or context for the assessment in this appeal.
However, the range of activity on the site in the Summerhouse, as well patronised as it was, is not in my view comparable to the size, scale and intensity of use of the permanent facility that is envisaged in the proposal. The appellant submitted that the proposal was not inconsistent with DEO 1 and that there was no planning evidence to the contrary; and that the scale of the proposal was determined by the respondent in its tender documents. The respondent’s view may have changed over time. That is not a relevant matter in my opinion. The proposed development must be assessed against the Planning Scheme as a whole.
The proposed development, by reason of its size, scale and intensity, is not appropriate for this park setting. It may well be the case that a facility scaled down and without a permanent function room that was designed to service the park user rather than being itself a destination in the park would pass muster. This development proposal does not. In my view it would have a negative impact on the core values of New Farm Park.
The Heritage Issues
The heritage value of New Farm Park is a significant matter and was addressed by two heritage architects, Mr Riddel and Mr Scott. The experts provided a joint report dated 28 November 2007. The park is heritage listed by the respondent and was listed on the Queensland Heritage Register in 2004.
Both experts agreed that the proposed building should not damage any significant nearby streets if it is to have no negative impact on the heritage values of New Farm Park (including the construction phase and the operation of the facility). However, they did not agree about the impacts that increased intensity of use in the proposed development would have on the heritage values of the park. Mr Scott considered that "a major shift between the pre-fire use of the kiosk and temporary marquees for functions and the current proposal, was the shift from use of temporary structures to permanent structures. The implication of the previous temporary structures was that they could be removed to re-instate the area of the park they occupied." He considered that this "shift" damaged the cultural significance of the park. Mr Riddel considered that the proposal sought to improve the existing facilities by having adequate kitchens and food preparation areas as well as its own toilets and "the design responded to the BCC requirements as well as to the trees on its site. The lease area was defined and the numbers of users identified." He considered the intensity of the development was consistent with similar facilities in well used parks "such as the Melbourne botanical gardens" and "did not threaten the cultural significance of the park."
(i) The Respondent has failed to give any or any sufficient weight to the matters raised in section 5.5 of the Report, which demonstrate that the proposal is consistent with the Planning Goals and Principles of the Local Plan and the intent of the Park's Precinct of the Local Plan;
(j) The Respondent has failed to have proper regard to the purpose of the Park Code and has failed to give any weight or any sufficient weight to the elements of the proposal which achieve the purpose of the Park Code;
(k) Further, with respect to the Park Code the proposal is in conformity with the following Performance criteria:-
(i) General;
(ii) P1 - The proposal must be appropriate for parkland settings;
(iii) P2 - The type and form of the proposal must maximise one or more park values, i.e. recreational or cultural education habitat, ecological landscape or corridor;
(iv) P3 - Access circulation and parking facilities;
(v) P7 - The nature and type of noise generated must be within the realistic expectations of any affected residences.
(l) Further, the Respondent has given no or no sufficient weight to the fact that the subject proposal is being made to replace an existing facility which was destroyed by fire and in particular:-
(i) The Respondent has given no or no sufficient weight to the fact that the proposed development is of a size and scale which is commensurate with the existing facility prior to its destruction by fire and also with the temporary facility that replaced the existing facility following the fire;
(ii) The Respondent has given no or no sufficient weight to the fact that the proposed development proposes similar if not identical uses to those of the existing facility prior to its destruction by fire;
(iii) The Respondent has given no or no sufficient weight to the fact that prior to its destruction by fire the existing facility enjoyed substantial community support and was regarded by the community as a positive adjunct to utilisation of New Farm Park;
(m) Further, with respect to those matters set out in the City Plan of Chapter 3, section 2.5.2, page 6, the Appellant says that:
(i) There is no conflict with the intention of the City Plan;
(ii) To the extent that there is any conflict with the City Plan, such conflict is minor and is more than offset or compensated for by the contribution the proposal would make to community well-being, meeting a need for dining facilities in the New Farm Park Area, a continuation of a well-established function centre primarily accommodating weddings in the Parkland setting, the provision of Kiosk products and generally adding to the opportunity to enjoy visits to the New Farm Park;
(iii) The proposal has a positive impact on amenity and meets an already demonstrated community need;
(n) There is no or no sufficient town planning or other reason to warrant refusal of the application."
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