Butterfield Projects Pty Ltd v Brisbane City Council

[2001] QPEC 58

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Butterfield Projects Pty Ltd v. Brisbane City Council & Anor [2001] QPEC 058

PARTIES:

BUTTERFIELD PROJECTS PTY LTD
(ACN 009 832 731)  Appellant
and

BRISBANE CITY COUNCIL  Respondent
and
AUSTIN AUSTRALIA PTY LTD
(ACN 000 363 020) and
ACCOR ASIA PACIFIC CORPORATION
(ACN 009 175 820)  Co-Respondents

FILE NO:

DIVISION:

3851 of 2000

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

DELIVERED ON:

19 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

30 and 31 July, 1, 2 and 7 August 2001

JUDGE:

Judge McLauchlan, Q.C.

ORDER:

Appeal is allowed and the development application for a material change of use is refused.

CATCHWORDS:

COUNSEL:

Mr C Hughes for the appellant
Mr Trotter for the respondent
Mr Hinson for the co-respondents

SOLICITORS:

Deacon Milani solicitors for the appellant
BCC Legal Practice for the respondent Council
Freehills for the co-respondent

The Planning Documents

1. This is a submitter appeal against the approval by the respondent on 18 August 2000 of a development application for a material change of use.  The application was for a motel development at 153-159 Lutwyche Road Windsor, the property being Lots 12, 13 and 18 on RP 46442, Parish of Enoggera and comprised within the Inner Residential Zone of the 1987 Town Plan which is the relevant transitional planning scheme. 

1. Land included in the Inner Residential Zone to the north, east and south of the site is predominantly detached housing of pre-war construction.  There is a mix of land uses along Lutwyche Road.  Along the western side of Lutwyche Road, opposite the site, land is zoned general industry and Particular Development (Fast Food Store/Restaurant and Service Station and Shop).

1. A pedestrian laneway is situated between a residential property and the southern boundary of the subject site.  The laneway connects Lutwyche Road to Gallway Street.  The subject site is abutted to the east by land containing a single detached house.  The site is adjoined to the north by a vehicle sales yard.  The site contains an area of 2,797 square metres and has a road frontage of some 44.5 metres to Lutwyche Road and of 12.3 metres to Gallway Street.  Lutwyche Road is an arterial route and Gallway Street is a residential access street.  The site is currently vacant.

1. The proposed motel comprises a single building with a three-storey component, linked by a stairwell to a two-storey component, the three-storey component fronting Lutwyche Road. The motel is to contain 68 rooming units, a manager’s accommodation and a small internal breakfast bar.  Proposed ingress and egress from the site is via a left-turn “In” from Lutwyche Road, and a left-turn “Out” onto Lutwyche Road.  No vehicle access is provided via Gallway Street.

1. The application was lodged in accordance with s.3.2.1 of the Integrated Planning Act 1997. Section 6.1.29 of that Act requires that in assessing an application for impact assessment under a transitional planning scheme, the following matters, amongst others are to be considered:-

§  the common material of the application;

§  the transitional planning scheme (the Town Plan);

§  any transitional planning scheme policies;

§  all State planning policies and;

§ the matters contained in s.4.4(3) of the repealed Local Government (Planning and Environment) Act.

1. The proposed development seeks a gross floor area greater than that allowed in the Inner Residential Zone.  As the gross floor area requirement cannot be relaxed, the proposed development needs to be included in a zone that could accommodate the gross floor area sought.  Accordingly, the decision approving the development application includes it in a Particular Development Zone – motel with a maximum gross floor area of 50 per cent of the area of the site. 

1. The intent of the Inner Residential Zone is stated at paragraph 7.4.1 of the Town Plan.  This reads as follows:- 

“Land included in the Inner Residential Zone is intended to remain as a relatively low density but closely settled residential area, primarily comprised of detached houses.  Duplex houses may also be allowed, subject to the consent of Council.  Any duplex house is however, also subject to the requirements of Residential Development Area R2, which applies to all land included in the Inner Residential Zone.  Neither attached house or apartment building is allowed in the Inner Residential Zone.

Any development for a duplex house in the Inner Residential Zone will require a site with a minimum area of 600 square metres, a frontage of 20 metres or more and will be limited in height to no more than two storeys.  This will minimise any overshadowing of adjacent detached housing”.

The intent for “Other Residential Development” is as follows-

“An educational establishment, institutional residence, motel, place of public worship, or retirement village may be allowed subject to the consent of Council.  These developments are intended to be compatible with adjoining residential development.  Any such development will, therefore, be subject to the same standards that apply to a duplex house in residential development area R2.  This will be particularly so in relation to traffic generation, building height, site cover, gross floor area, and boundary clearances.”

1. A motel is thus generally consistent with the intent of the Inner Residential Zone subject to compliance with the standards indicated.

1. There are a number of development standards imposed in paragraph7.6.1 of the Town Plan, with respect to Residential Development Area R2 in the Inner Residential Zone, all of which are relaxable except the development standard relating to maximum gross floor area.  That standard is 35% of the site area whereas the proposed development will take up 49.2% of the site area.  Non-compliance with other development standards includes the three-storeys proposed (exceeding  2 storeys above ground level), and the side boundary clearance.

1. The application was made and decided under the 1987 Town Plan.  City Plan came into force on 30 October 2000.  Pursuant to s.4.1.52(2) the appeal is to be decided on the laws and policies applying when the application was made, but the Court may give weight to any new laws and policies the Court considers appropriate.  That raises for consideration relevant provisions of City Plan 2000 and the Grange District Local Plan. Also relevant to the planning documents at the time the application was made is policy 18.06 with respect to the design of car park facilities.

1. Under City Plan 2000 the site is included in the Character Residential Area, where development for short-term accommodation is impact assessable, and generally inappropriate.  There is an extensive area included in the Character Residential Area surrounding the subject site, including many developments incompatible with such a description.  City Plan 2000 provides with respect to generally inappropriate impact assessable development that “the proposal will need to demonstrate that it accords with the Strategic Plan in Chapter 2 and that there is a social, economic or environmental need for the development that could not be met in an area where land has been allocated for that use under the Plan”.   A proposal will further need to demonstrate, inter alia, that:

§  the character, location, siting, bulk, scale, shape, height, density, design and external appearance of the proposal accords with the reasonable expectations and desired environmental outcomes for the area in which the land is classified.

§  the proposal has a positive impact on the landscape, scenic quality and streetscape of the locality.

§  the proposal does not detract from the appearance, environment or amenity of the locality and;

§  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 or type of vehicle movements

-      manner of access to the site.

1. The appellant points to the Bowen Hills Local Plan, which is next-door to the Grange District Local Plan and which includes both the Royal Brisbane Hospital and the Showgrounds and which has a specific precinct, SP13 Office-Park, where short-term accommodation (or motels) are specifically promoted, and are code assessable only.  However, it is necessary also to refer to the Grange District Local Plan.  City Plan 2000 provides that a local plan overrides any other part of the City Plan with which it may conflict.  The Grange District Local Plan relates to a geographical area broken down into precincts, including the precinct known as the “Lutwyche Industrial Area” within which the subject site is to be found.  In relation to that precinct it is provided:-

“The Lutwyche Industrial Area is intended to be an employment node providing a range of industrial, service trades and business activities servicing the needs of both the local and broader communities.  Any future proposal must be contained in the existing business/industry area and minimise impact on surrounding residential amenity while enhancing the existing streetscape.

Opportunities also exist in this area for increased housing choices, particularly in relation to accommodation for visitors to the nearby hospital.” 

The precinct intent of the Local Plan is a matter against which an application for development is to be assessed in accordance with a provision to that effect in City Plan.

1. The intent of a zone is a guideline and is of limited relevance where a rezoning is proposed.  I consider that if there are sufficient planning grounds for approval of the proposed development, then the respondent’s planning documents are not an impediment to that course.  Planning grounds to be considered include whether or not there is a need for a motel which could not be accommodated within the Inner Residential Zone, at least in so far as the requirements of that zone are not relaxable, that is to say with reference to the gross floor area restriction of 35% of the site area.  A development which complied with that requirement would be a consent use within the zone.

The relevance of the proposed Northern Busway

1. An investigation is proposed, and to some extent is underway, to examine a proposal for a busway from Carseldine to connect onto the inner northern busway at Herston.  Whether and when such a busway will be constructed, and precisely over what route, are matters which have not yet been determined.  Suggestions have so far included a route along Victoria Street which is the local street parallel to and west of Lutwyche Road; an elevated route along the west side of Lutwyche Road; and a route along the east side of Lutwyche Road.  Further studies are envisaged before a decision will be made with respect to these matters.  If the route of the proposed busway is finally determined to be along the eastern side of Lutwyche Road, then that is a development which may well affect the subject property.  The extent to which the subject site will be affected in that eventuality will depend upon whether the busway is constructed at grade, or above or below grade, as it passes the site.  If it is constructed above or below grade it will not necessarily create any problem with respect to access from the site to Lutwyche Road, whereas, of course, if it were constructed at grade it would render such access impossible.  The Council’s planning documents make reference to a proposed busway along or in the vicinity of Lutwyche Road, and the approval in the present case was made subject to a condition that the motel building be set back 17.5 metres, being 11.5 metres in respect of the proposed busway and 6 metres in respect of the Council’s proposed boulevard treatment for Lutwyche Road.  In fact the development is proposed to be set back 21.9 metres. 

1. Queensland Transport is the controlling authority in respect of Lutwyche Road at the location of the site of the proposed development.  Queensland Transport consistently states that it has no known requirement in respect of the land but has urged the respondent Council to protect the proposed busway by imposing the abovementioned setback requirement.  The Council concedes that it would not have approved the project without that setback.   The evidence establishes, in my view, that there is at least a possibility, and perhaps a probability, that the northern busway will at some time be constructed in Lutwyche Road along the frontage of the subject site.  Indeed, Mr Mogg for the respondent, stated that he thought it probable that the busway would be so constructed.  I did not, however, understand his evidence to be that the busway would proceed in front of the subject site necessarily at grade, rather than above or below grade.  And his opinion does not alter the position, otherwise established by the evidence, that the exact route of the busway has not yet been determined, and it has not yet been determined that it will in fact be constructed.  I think it is a fair inference from the evidence that the construction of the northern busway is a probability, but whether it will in the event have a direct effect upon the subject site by denying it access to Lutwyche Road, can only at present be a matter of speculation.  In that situation, the authorities make it clear, in my view, that the proposal should not be treated as an impediment to the proposed development.  Apart from the question of access to Lutwyche Road, the busway, if it does directly impact upon the subject site, would also affect the question of parking on site, which is a separate matter.  In the event that access to Lutwyche Road were lost by reason of the construction of the proposed busway, that would raise at that time, issues concerning the future viability of the motel and alternative arrangements with regard to access and parking which would have to be dealt with by the appropriate authorities. 

Need

1. Need is a matter to which attention is required to be directed under s.4.4(3)(b) of the Local Government (Planning and Environment) Act 1990. In a general sense I am satisfied that there is a planning need for a motel in the vicinity of the site. There are very few motels in the immediate area and a concentration of motels in other parts of the city and adjacent to the city. A motel is consistent with the intent of the Inner Residential Zone and with the Industrial Precinct of the Grange District Local Plan. The proposal is for motel accommodation of a cheaper kind than that offered by the motel owned by the appellant, a short distance away in Lutwyche Road. The proximity of the site to Royal Brisbane Hospital, which has recently undergone extensive additions, and to the Royal National Showground, the lack of cheap motel accommodation in the area, and the location of the site on Lutwyche Road which carries substantial traffic and is a major northern arterial link to and from the Brisbane metropolitan area, satisfies me that there is a planning need for the development of a motel of a kind proposed on the site. Mr Scott Alcorn has produced information identifying motels and hotels within a 5 kilometre radius of the subject site. There are a large number of motels and hotels within that radius, but only 22 within a 3 kilometre radius of the site. In his report he observes:-

“Along the relevant stretch of Lutwyche Road there are only 2 motels providing accommodation and (they) are located further away from such activity generators as the Royal Brisbane Hospital than the distance from the proposed development.  In addition, the motel will not only serve the hospital belt, it will also serve the Lutwyche Road industrial area, other surrounding and nearby  industrial and commercial areas such as along Newmarket Road, Wilston and travellers.”

And, as already noted, the accommodation is cheaper than usually available being a set price of $49.00 per room per night, each room catering for several people.  In a general sense, then, need is shown. 

1. However, what is required to be assessed by the relevant provision of s.4.4, referred to above, is “the need for the proposed planning scheme amendment”. An amendment is required to the planning scheme because the gross floor area of the proposed development is 49.2% of the site area rather than the limit specified in the Inner Residential Zone, that being a requirement which is not relaxable by the respondent Council.  Hence the amendment to place the development in a Particular Development Zone.  Need will be established then if it can be shown that a motel of a size which could be accommodated within the Inner Residential Zone would or might not be adequate to meet the planning need.  There is no evidence before the court in relation to that matter.  The evidence of Mr Erber, for the co-respondent, was to the effect that the motel was intended to cater for demand for budget accommodation which could not be satisfied at the co-respondent’s principal “Formule 1” motel at Hamilton, near the Airport.  But there was no evidence as to the size of a motel which would constitute a good economic use of the site, or as to how many people were in fact likely to take advantage of the accommodation offered by the development.  Evidence before the court shows that within the Inner Residential limit for gross floor area of 35%, a motel comprising 49 units could be developed, whereas the proposed development of 68 units produces a gross floor area of 49.2%.  Mr Butterfield, who is the “principal” of Butterfield Projects Pty Ltd, which conducts the Windsor International Motel nearby, and which is the submitter appellant, has stated that his motel provides 60 residential rooms, 2 conference rooms and a manager’s residence totalling 63 rooms.  He said that so far as the residential rooms are concerned, the motel has had an average occupancy rate of less than 40% for the period from July 2000 to 30 June 2001.  The motel opened its doors for business in December 1998.  Of course the differing tariffs between that motel and the one proposed would have some effect on these figures, but nevertheless it is not obvious that a motel of 49 units would not meet the planning need for a motel of that type, bearing in mind the larger development owned by the co-respondent at Hamilton. 

1. I do not think it can be said, in the circumstances, that a need for the proposed planning scheme amendment has been established.  Of course it is true that need is but one of the matters to be considered, and its weight will vary from case to case.  The fact that the evidence does not, in my view, establish need in the sense required in this case, does not by itself require that the development application should not be approved.

Streetscape and Amenity

1. I consider that the proposed development is compatible with the character of the neighbourhood in which it is located.  That character is clearly business and industrial in nature.  It is true that the development is somewhat utilitarian in appearance, as is the larger development at Hamilton, also operated by the co-respondent.  The motel owned and operated by the appellant, is much more attractive, but it is a higher class establishment and provides a more expensive service.  Apart from the residential rooms there are conference rooms and a well-regarded restaurant and the general standard of amenity of that development is very high.  The proposed development is of quite a different order.  It provides cheap accommodation and the appearance of the building, in general, reflects that.  Nevertheless, it seems to me to be a tidy development which is not out of character with the surrounding development in the area.  There is adjoining residential development on the east of the subject land, and to the south, separated from the subject land by a 3.8 metre wide pedestrian pathway, is residential development.  Otherwise, the area around the subject land is predominantly business, commercial or industrial.  The existing residential development to the south is likely to be demolished.  Along the stretch of Lutwyche Road between Granston Street to the north and Horace Street to the south are 68 allotments, of which 6 contain dwellings and the remainder are business, commercial and industrial uses.  The development is perhaps a little bulkier than ideally it would be, but nevertheless in the circumstances of the particular locality I consider that overall the development does not detract from the local amenity, and makes a marginal contribution thereto. 

Over-development

1. The complaint of over-development of the site appears to be based partly upon the departure of the development from the standards of the Inner Residential Zone, and partly upon the impact of the proposed development upon occupants of adjoining properties and the amenity of the neighbourhood.  The departure from the standards of the Inner Residential Zone are, in my view, in a general sense, warranted by the characteristics of the locality surrounding the site.  Those characteristics, previously referred to, are such as to warrant a re-zoning to the extent that that is necessary for a development of this nature to proceed.  The departure from those standards, which, apart from one are relaxable, is not therefore evidence of over-development.  The question of the effect upon amenity has already been considered.  The height of the building does not make a positive contribution to amenity, nor do the side setbacks which have been relaxed.  However, those matter are, in my view, tolerable in the vicinity being considered.  Reference has also been made to the general bulkiness of the development, and again, although this makes no positive contribution to the amenity of the area, it does not significantly detract from it.  In a general sense I do not consider that the development represents “over-development” of the site, except by reason of one matter, to which I now turn.

Parking

1. The Town Plan requirement for parking in respect of a motel is one car space per dwelling unit or rooming unit.  That standard therefore requires, in respect of the present development, that there be 68 car parks.  The standard may be relaxed where the circumstances of the case warrant such action.  I am satisfied on the evidence that for an inner city or near city motel, the requirement of one car park per room is excessive, in general, but may be appropriate in the case of motels further from the city centre.  There is evidence in relation to the operation of the co-respondents’ motels in other parts of the country which satisfies me that for this particular development a parking requirement of .7 car spaces per room is adequate.  This seems to be accepted by the traffic experts who gave evidence, including the expert called by the appellant, Mr Holland.  Mr Holland however, makes the point that in applying such a rate it should be calculated in relation to 100% of the rooms, that is, to cater for full occupancy of the motel.  Another approach is to make the calculation based on an 85% occupancy of the motel, a formula which produces a figure of .6 car spaces for each room.  The figure of .7 applied to 100% occupancy results in a requirement for 48 car spaces whereas when it is calculated in relation to the 85^th percentile, it produces a requirement for 41 car spaces.  Mr Holland makes the point that although it may be reasonable and an engineering practice to work on the 85^th percentile, it is necessary in such cases to provide a margin to cater for extra demand.  He takes the view that a calculation which effectively provides a requirement of .6 car spaces per room does not provide the margin which is sensibly required. 

1. In the present case I think it is important that a somewhat conservative approach be taken to the question of parking.  The development has not been permitted access to Gallway Street, to protect the residential amenity to the east of the building, the only access to the site being from Lutwyche Road.  Parking in Lutwyche Road is highly undesirable and could produce dangerous situations.  Patrons of the motel are therefore confined to such parking as can be provided on site, in contrast with the appellant’s motel which has access to convenient street parking.  The parking proposed for the development is in fact 41 car spaces.  However, the car spaces proposed have a width of 2500mm instead of the minimum 2600mm required by planning policy 18.06, and the proposed parking also includes some tandem parking, which is also contrary to the planning policy.  There are in fact 3 tandem parking spaces, and a further 4 parking spaces would be lost if the minimum width requirement was adhered to.  That means that in effect only 34 car spaces are provided which comply with the standards of the planning policy.  Both the reductions in the width of parking spaces, and the use of tandem parking spaces, produce inconvenience for motel patrons, and increase the possibility of damage to vehicles.  In the event of occupancy exceeding 85%, which would be relatively uncommon, there is the possibility of “squeezing” further parking spaces onto the site as a temporary expedient with sufficient management. 

1. I regard the parking situation as unsatisfactory and it is a consequence of the size of the development proposed, namely a motel of 68 units.  A motel of 49 units, which would comply with the inner residential limit of 35% gross floor area, would require only 34 car parks which could be easily provided.  It is possible that a development occupying a gross floor area somewhere between 35% and the 49.2% required by the present proposal could also accommodate parking requirements reasonably satisfactorily.  The present proposal, however, in my view, does not make appropriate and convenient provision for parking, and this is a matter of particular importance having regard to the matters which I have already mentioned, in particular the absence of alternative street parking except on Lutwyche Road, which is undesirable and possibly dangerous.  Of course if part of the site frontage is ultimately lost to the proposed Northern Busway, the proposed parking for the development will be impossible in any case, but that is a problem which has not yet arisen.  The situation with respect to parking does, in my view, establish that the proposal is an over-development of the site.

1. The onus of establishing that the appeal should be dismissed lies upon the applicant Co-Respondents. What I have said concerning the over development of the site, resulting in inadequate provision for parking combined with the failure to show a need for the re-zoning, means that on balance that onus has not been discharged.  In the result the appeal is allowed and the development application for a material change of use is refused.