Calvisi v Brisbane City Council

[2008] QPEC 45

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Calvisi & Ors v. Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v. Brisbane City Council & Ors [2008] QPEC 45

PARTIES:

FRANCIS JOSEPH CALVISI
JOAN CALVISI
DIANA GRACE FAVELL

(Appellants)
v

BRISBANE CITY COUNCIL
(Respondent)
and
TOM DOOLEY DEVELOPMENTS PTY LTD
(Co-respondent)
and
URBAN STRATEGIES PTY LTD
(Co-respondent)


GRAHAM MORGAN, MATHILDE MORGAN
(Appellants)
v
BRISBANE CITY COUNCIL
(Respondent)
and
TOM DOOLEY DEVELPMENTS PTY LTD
(Co-Respondent)
and
URBAN STRATEGIES PTY LTD
(Co-Respondent)


NORMA UPHAM, PETER UPHAM
(Appellants)
v
BRISBANE CITY COUNCIL
(Respondent)
and
TOM DOOLEY DEVELOPMENTS PTY LTD
(Co-Respondent)
and
URBAN STRATEGIES PTY LTD
(Co-Respondent)

FILE NO/S:

2594 of 2007, 2618 of 2007 and 2916 of 2007

DIVISION:

Appellate

PROCEEDING:

Submitter appeals against development approval

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9, 14-18 April 2008, 29, 30 May 2008; written submissions to 17 June 2008 (co-respondents)

JUDGE:

Robin QC DCJ

ORDER:

Appeals dismissed

CATCHWORDS:

Integrated Planning Act 1997 s 3.2.1

Submitter appeals against Council approval of development application for site in medium density living precinct within the New Farm Teneriffe Hill Local Plan – site adjacent to heritage places (one so listed after Council approved development of a larger, taller building in its place) – site itself contained another heritage place (16 storeys and 13 storeys in height) to be sub-divided off in approved reconfiguration – acceptable solutions in applicable Local Plan code of 5 storeys maximum height and plot ratio of one substantially exceeded by approved tower of 10 storeys – related performance criteria found to be satisfied – Local Plan prevailed over Brisbane City Plan 2000 so that general provisions under which proposal was high density rather than medium density living were not determinative – river views held “maintained” notwithstanding obstruction by the tower – whether the development application invalid for failure to include (1) an area of road to be closed and amalgamated with the site, (2) land owner consents (3) demolition of an undistinguished building on the site (because it was on a “heritage place”), (4) a material change of use to cover intensification of the use associated with the designated heritage place buildings on the site – issues included heritage, architecture, urban design and visual amenity – proposal considered to produce an acceptable “visual relationship” with neighbouring and nearby buildings.

COUNSEL:

Mr Favell and Mr A Taylor for appellants in 2594 of 2007

Mr Morgan in person

Mr Upham in person

Mr Hinson SC for respondent

Mr Hughes SC, Mr Job and Mr Williamson for co-respondents

SOLICITORS:

Gail Malone and Associates for appellants in 2594 of 2007

Brisbane City Legal Practice for respondent

DLA Phillips Fox for co-respondents

REASONS FOR JUDGMENT

1. These three submitter appeals challenge the Council’s approval of residential development proposed by the co-respondents on a riverfront site in Moray Street, New Farm, No. 79.  If the proposal is implemented, facing the street will be a 3-storey building, behind it on the River, a 10-storey one, said to present to the street as 8-storeys given that the rear of the site falls fairly steeply.  The appeals were ordered to be heard together.  Two similar appeals, 2556 of 2007 and 2991 of 2007, covered by that arrangement, were filed by Tostino Pty Ltd, as the owner of adjoining land immediately downstream from the site, on which is erected a heritage listed building known as Aville Court.  The first co-respondent had contracted to purchase that property at the time when hearing of the appeals commenced, and has subsequently completed its purchase, but may not yet be the registered owner.  Mr Lyons QC appeared for Tostino when the appeals were called on to announce that notices of discontinuance had been filed in its appeals, that notice of withdrawal of its submission had been given to the Council and advice that it no longer objected to approval of the development proposed by the co-respondents.

1. The appellants in 2594 of 2007, who were represented by Mr Favell and Mr A Taylor of counsel own the penthouse apartment in a 6-storey building called Bellerive, located across Moray Street from the site.  Their views to and across the River to Kangaroo Point will be partially blocked by the 10-storey tower; they seek to restrict the height of it to five storeys, being the prima facie “limit” under the current planning scheme for this part of New Farm.

1. The Morgans own the apartment immediately below in Bellerive; they stand to be affected in a similar way by the proposed tower; they would have no view of water available above it, even at five storeys.  The Uphams are not asserting any adverse impact of the proposal by reference to the amenity of Bellerive; they have property interests elsewhere in the New Farm/Teneriffe area and are defending a more general position against tall buildings proliferating in the locality.  Mr Morgan and Mr Upham questioned witnesses and made submissions of their own, but generally speaking relied on the case presented by Mr Favell for the appellants in 2594 of 2007.

1. These appeals are replete with issues of a legal or technical kind identified by Mr Favell, such as the legal existence at relevant times of the “site”, and lack of owner consents required for the development application to be valid.  While it may be seen as having a continuing physical existence, the site accommodating the proposed buildings is being created by a reconfiguration approved by the Council to subdivide off the upstream part where the landmark Gleneagles Towers (“Falcon House” and “Peregine House”) were constructed in the 1960s; it is being added to by incorporation of land on the riverbank designated public road (a road going nowhere) which at the time of the development application being made was expected to be closed – and now has been closed and amalgamated with the pre-reconfiguration site.  Another issue concerns demolition of the Clive Burdeu Centre, a disused nursing home facility on the site, to make way for the proposed new buildings; the Centre (whilst said to lack merits of its own) is located on a heritage place, or shares a common site with a heritage place, thanks to the listing of Gleneagles Towers, so that its demolition raises special questions, particularly if it is not duly authorised.  While demolition may be thought implicitly included in the approval under appeal, it is difficult to discern here the usual permit to demolish granted on an application in that behalf in the “suite of approvals to facilitate the redevelopment” which Mr Hughes SC for the co-respondents referred to in his opening (transcript p 4 line 24).  Unauthorised demolition of a heritage place may attract the penalty that nothing taller may be erected in substitution.  Responding in writing to further written submissions provided by Mr Favell in June 2008, Mr Hinson SC for the Council recorded (para 4) that the development application sought a preliminary approval for demolition (building work).  I take it that reliance is placed on reference to “Building works on and adjoining a Heritage Place” in exhibit 10C pp 96, 117.

1. The matters referred to in the preceding paragraph will be addressed in due course.  The central concern of the appellants is with the bulk of the proposal, the height of the tower in particular.  The developer claims an indulgence by reason of the proposal’s location adjacent to Peregrine House (16 storeys); Falcon House (13 storeys) is the somewhat further upstream “neighbour”, being both more remote and on Moray Street rather than on the River; constructed on higher terrain, Falcon House presents as similar in height to Peregrine House, except from close up vantage points on the River side from which storeys can be counted.

1. Building heights have been a matter of concern to residents of New Farm and Teneriffe, numbers of whom have applied pressure over the years to get them restricted.  The predecessor of the New Farm Teneriffe Hill Local Plan incorporated in the Brisbane City Plan 2000 was a similarly titled Development Control Plan introduced into the City of Brisbane Town Plan 1987 in 1996, amended in 1998.  Mr Buckley’s planning report, relied on by the appellants, describes the planning arrangements then produced as follows:

“… at that time [April 1998] the subject land was within a precinct referred to as Precinct 3 – High Density Living.

At 3.3 the intent for residential development in the High Density Living precinct states as follows:

‘Residential Development

This precinct includes property previously zoned for medium-high residential density uses.  It is intended to be developed to the highest densities of any of the precincts in the plan area, taking advantage of high levels of accessibility and visual amenity which characterise the location of land in this precinct.  Only a small part of the plan area is included in this precinct.  The emphasis in this precinct is to allow for a high density housing character which is well designed and appropriate to Brisbane’s climate.

Accordingly, while acknowledging that under the previous zoning no height limits applied to development in this area, the intent of this plan is to limit height in the precinct to five storeys with a range of housing types providing a desirable residential living environment.

Housing servicing the needs of a wide range of residents, particularly those of an aging population, such as retirement villages, will be encouraged in this area …’

The provisions for building height applied at the time was for buildings to be a maximum of 5-storeys.  Gross floor area was not to exceed 1.0.”

His view (with which I cannot agree in the end) is that those arrangements have been carried over into the present ones.  In that regard the coming into force of provisions of the Integrated Planning Act 1997 (IPA) must be considered.  Nothing can be prohibited by a planning scheme.  See s 2.1.23(2), also s 6.1.2(3) and s 6.1.9(3A).

1. In the era of no limits on height, not only were Gleneagles Towers constructed, but also other buildings of similar height and greater bulk, such as Bowen Place, of 14  storeys, Princeton Place (133 Moray Street) of 11 storeys and River Manor (16  Moray Street) of 10 storeys.  Those are all (like the site) in the major upstream part of the precinct whose north-east boundary steps back from Bowen Terrace to Merthyr Road, whose south-west boundary follows the river as far as Julius Street, then moves away towards Merthyr Road.  In another part of the precinct at Griffith Street and Oxlade Drive are more such lofty structures, notably Glenfalloch of 15 storeys and Kiribilli (11 storeys).  Nearby is Abbotsford, in Mountford Street (10 storeys).  The number of 7, 8 and 9 storey buildings is greater.  Bellerive is another development approved in that era.

The “Lay” Witnesses and Expectations

1. Exhibits 54 to 61 are affidavits sworn by submitters opposed to the co-respondents’ proposal, none of whom was required for cross-examination.  The deponents are Ms Buchan, Ms Pugh, Drs Orazio and Jukasz, Mr and Mrs Hughes, Maaike Vromans and Ms Fynes-Clinton.  Exhibit 62 is a longer affidavit of the appellant, Mr Calvisi who was the builder of Waters Edge (referred to elsewhere at paragraph [12]) and (for his family) of Bellerive, as to which he notes, in a passage revelatory of the vagaries and ironies encountered in the planning world the (then):

“high density zoning in the area.  There was no height limit prescribed but Council was restricting buildings to 10 storeys in height.

3.At about this time the Urban Renewal Task Force and Council were undertaking the community consultation and implementation of the New Farm and Teneriffe Development Control Plan.  As a result of that community consultation reduced height limits of 5 storeys were proposed for the New Farm Development Control Plan.  Although the provisions of the Development Control Plan did not apply to 72 Moray Street at this time, Council sought to restrict the building to 5 storeys.  Following discussions with Council we agreed to a 6 storey development instead of the 10 storey development that was permitted.  Despite our reduction to 6 storeys Council still would not approve the development and my father appealed against the deemed refusal to the Planning and Environment Court.  The application was approved by the Court in 1996.  The building was completed in late 2001.

4.In agreeing to restrict the height of our development to 6 storeys, we took comfort in the fact that with the new height restrictions imposing a 5 storey limit in the area, and the elevated position of 72 Moray Street, the views and outlook from my parents’ residence/apartment would not be impacted upon by any future development in the vicinity even if that future development was built to the 5 storey limit.”

Ms Pugh resides in another “historical” taller building of 7 storeys.  The deponents, among their number refugees from the “concrete jungle” of Kangaroo Point, speak of more than expectation that a 5 storey limit will be enforced, they took it to be an inflexible one, they report assurances attributed to Council officers to that effect, and even, specific to the present application, that there was “no way” 10 storeys would be approved.  A number suggest they purchased where they did in New Farm in reliance on a 5 storey limit on development.  Establishment of the supposed limit in the mid 1990s was seen as a victory for local sentiment, which sentiment the court is satisfied still persists.  There is a local animus against high rise per se, as destructive of the “charm and attraction of this suburb”; more practical or mundane concerns about traffic and parking congestion are ventilated, concern for the safety of elderly residents of Gleneagles Towers.  Dwarfing of neighbouring heritage buildings is complained of and the adverse effect of a 10-storey building on vistas of the River, City and Story Bridge.  There is an understandable (but inaccurate as a matter of law) view that the approval under appeal sets a precedent.  One deponent fears an avalanche of high rise along the River.  There is opposition to “erecting taller buildings so we can cram more people in than the area can sustain”.  One asserts that in the Local Plan “there is a prohibition on buildings in excess of 10 storeys”.  That last proposition, doubtless to the consternation of many (probably most) in New Farm is incorrect.

1. In some respects the concerns about the application are overstated.  From Moray Street at ground level there are no vistas whatever.  The occupiers of this stretch on the River side have been successful in implementing an apparent collective determination that no passer-by in the street will get so much as a glimpse of the River – so there is nothing to be lost.  Fears of this development cramming people in are groundless.  The proposal is essentially for one residential unit per floor, which no doubt the market will bear – a marked contrast to Peregrine House and Falcon House, which each provide four modest residences per (smaller) floor.

1. The court is required to take into account submitters’ views, so far as they have been made known.  This I have set out to do.  The submitters may take some comfort from the IPA’s stipulating that in this appeal it is not for the appellants to show that the appeals should be allowed, it is for the co-respondents to show that each appeal should be dismissed: s 4.1.50(2); they have to satisfy the court that their development application deserves approval.

1. In these appeals other approvals are not to be regarded as precedents.  Every development application to be considered on its own merits in its context, but it would be unrealistic to ignore entirely the pattern of approvals in the area.  This may impact on the expectations that informed people would have of the planning future.  While City Plan in terms respects “realistic expectations”, for example in chapter 2 s 4.2.2.1, expectations have always had to confront possibilities of relaxations being granted, land being rezoned, planning schemes being changed.  Mr Hayes demonstrated a pattern of approvals to 5 storeys (or lower) in the local and wider New Farm area in recent years (even that represents unwelcome intensity for some deponents).  The observation was justly made that there is little remarkable here.  In some cases, the sites could accommodate nothing higher, in others the sites backed directly on to others in a lower density residential precinct and would have had to contend with requirements to respect that.  Further, by meeting the acceptable solution, developers simplify life for themselves: they have no need to embrace the costs, uncertainty, trouble and delay facing them if they sought to build higher and so were forced to impact assessment.

1. The co-respondents and the Council rely on an emerging pattern being set by less timorous developers who have persuaded the Council to issue approvals for the following:

(i)        Vietri Apartments, 18 Moray Street (6 storeys) on 443 m²;

(ii)       Altura, 41 Moray Street (6 or even 7 storeys viewed from the river and roof) on 792 m²;

(iii)      Barker Street Apartments, 75 Barker Street (7 Storeys);

(iv)      Julius Street Apartments, 10A Julius Street (6 Storeys) on 438m²;

(v)       Waters Edge Apartments, 33 Griffith Street (6 Storeys viewed from the street and 7 when viewed from the river) on 1118m²;

(vi)      Platinum Apartments, 166 Oxlade Drive (7 Storeys) on 1677 m²;

(vii)     Aville Court Apartments, 91 Moray Street (6 Storeys when viewed from the river) on 1366m², and

(viii)      Ciel Apartments, 69 Moray Street (8 Storeys) on 1681m².

The appellants in 2594 of 2007 and the developer of Waters Edge[1] may fairly be seen as related.

The instances listed should be enough to disabuse those still harbouring expectations in terms of any inflexible 5-storey limit.  But some caution is required.  The point is that there is no 5-storey limit.  None of the eight instances comes anywhere near 10 storeys.  There may be room for argument whether storeys have been counted correctly for the listed projects.  In some instances Mr Calvisi’s count and/or Mr Hayes’ count may be different; it can depend on which elevation one looks at.  There is no component of Ciel which is 8 storeys – there may be none exceeding 5: the appearance of 8 is given when viewing the whole development from the River.  The parties have taken (internally) inconsistent positions about numbers of storeys, as to whether what matters is appearance or some objective count.  At some point, all have espoused the latter.  Barker Street (another Tom Dooley Developments proposal) is said by Mr Calvisi, concerned about its impact on views from Bellerive, to be “maybe 8 storeys (depending on how you count it)”; the approval is under appeal in the court.  Barker Street is adjacent to Bowen Place.  There is a difference in substance, if not in principle, between exceeding a 5-storey benchmark by one or two and doubling it – as to which it is correctly pointed out that the appearance of 10 storeys is from the River side only; from Moray Street, the tower will present as 8 storeys – which is not to gainsay the awareness people are likely to have, psychologically, of the additional two.

[1]Which has its own history in the court preceding the approval: Hayday Pty Ltd v Brisbane City Council [2006] QPELR 40 and 261.

Right to a View?

1. There is no right to a view from one’s property in Australian (or British) law.  That has been clear since Coke who noted that:

“Prospect … is a matter only of delight, and not of necessity, no action lies for stopping thereof, and yet it is a great commendation of a house if it retains a long and large prospect but the Law don’t give an action for such things of delight.”

in reporting Aldred’s case (1611) 9 Co. Rep 57(b). See Baalman, No Easement for Prospect, (1942) 16 ALJ 126. It is very much open to question whether, with us, it is possible for there to be any right corresponding with the Roman law servitude of unrestricted view (servitus ne prospectui offendatur) (Ibid).

1. In our own times, in Hunter v Canary Wharf Ltd [1997] AC 655, Lord Goff of Chieveley said at paragraph 8:

“As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls.  Moreover, as a general rule, a man’s right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour’s enjoyment of his land.  The building may spoil his neighbour’s view … nevertheless his neighbour generally cannot complain.”

The appellants’ case is that relevant planning controls protect their present views from their properties, which are lots in Bellerive, where the Morgans are on the 5^th floor, the Calvisi appellants on the 6^th.  Their views will be markedly affected by adding a tower of any more than four or five (as the case may be) storeys planted in the way as they look towards Kangaroo Point across the River.  The Uphams, as noted elsewhere, are less favourably located in Bellerive, but nevertheless oppose development of the height proposed, or anything exceeding 5 storeys.

Local Plan provisions

1. Provisions protecting views are unusual in Brisbane City Plan 2000.  Those that try include the Kangaroo Point Local Plan, whose predecessor was considered in Cromar Pty Ltd v Brisbane City Council [1996] QPELR 84; it approaches the issue in different ways from the New Farm Teneriffe Hill Local Plan, containing the presently pertinent Code which for the applicable Medium Density Living Precinct provides:

Performance Criteria

Acceptable Solutions

P1 New buildings must maintain views to and from the River and other landmarks identified on Map A – New Farm and Teneriffe Hill, while maintaining a visual relationship with other buildings in the vicinity

A1.1    Building height is no more than 5 storeys, and 15 m above ground level to the underside of the ceiling of any habitable room.

A1.2    Where the proposal includes removal or demolition without Council approval of a heritage place listed in the Heritage Register Planning Scheme Policy, the height of any proposal on the site is not more than the height of the demolished heritage place.

Gross floor area

P2       Building size and bulk must be consistent with the medium density nature of the locality and retain an appropriate residential scale and relationship with other precincts in the plan area.

A2.1    Gross floor area does not exceed the area of the site.

A2.2    Where the proposal includes removal or demolition without Council consent of a heritage place listed in the Heritage Register Planning Scheme Policy, the gross floor area of any proposal on the site is not more than the gross floor area of the demolished heritage place

Building design

P3       New buildings on a site must be comprised of individual structures

A3.1    Spaces  between buildings within the site are provided with a separation distance of 5 m

A3.2    Building walls within the site do not exceed 10 m in length

Street setbacks

P4       Street setbacks must be compatible with existing setbacks in the area

A4      Building setbacks from the road alignment are not less than 6 m

River access

P5       Visual and physical links must be provided to and along the River and ferry terminals and in particular, between Merthyr Park and Oxlade Drive

A5      Public access along the River north of Merthyr Road is provided and pedestrian access to ferry terminals is improved

The relevant “landmarks” are the Story Bridge, New Farm Park and the Holy Spirit Church.  For the site, P5 may be seen as a dead letter.  The Code has the following introduction:

“5.         New Farm and Teneriffe Hill Local Plan Code

This Code provides additional and/or alternative Acceptable Solutions to the Codes in Chapter 5 and takes precedence over the Codes in Chapter 5.

The purpose of this Code is to ensure that development in the Local Plan area is consistent with the development principles and precinct intents of this Local Plan.

In assessing the appropriateness of a proposal that varies from any Acceptable Solutions of the relevant Code/s or the provisions of this Plan, consideration will be given to:

●the likely social impact and proposed means of mitigating that impact.

●the community benefit, to the extent the variation would assist in the provision of cultural or community uses, special needs housing or low cost housing, enhanced access for people with disabilities, or the retention of places of heritage value or performing an important social function.

●the particular characteristics or needs of the user group/s for which the development is intended.”

1. This follows the Local Plan provisions setting out what is intended for the various precincts, including:

“3.3       Medium Density Living Precinct

It is intended that this precinct be used predominantly for medium density residential use, taking advantage of the high levels of accessibility and visual amenity that characterise the land in this area.  Where possible, development proposals should provide visual and physical links to the river.

The opportunity for public access is to be retained along the river frontage of new development in the area north of Merthyr Road.

New development is to provide car parking in basement or semi-basement areas as far as is practical, to reduce the visual impact of cars on the streetscape.

Non-residential uses that provide local community services are encouraged where the proposal is compatible with the surrounding residential neighbourhood.  New non-residential uses should be incorporated within a mixed use development where the predominant focus is on the residential component.

Existing non-residential uses can continue to be used for appropriate non-residential uses.”

There is an Introduction

“1          Introduction

This Local Plan contains specific additional Local Planning requirements.  Where it conflicts with the requirements of the City Plan, this Local Plan prevails.

In using this Local Plan, reference should also be made to Section 1.1 – Using a Local Plan at the front of this chapter.

2           Development principles

2.1        Planning goals

1.Encourage the retention and enhancement of the existing social character and sense of community.

2.Encourage a modest population increase.

3.Encourage the retention of New Farm’s characteristic diversity of built form and village feel.

4.Ensure that infill development and redevelopment is compatible with new Farm’s established character.

5.Encourage the retention, protection and enhancement of items of historical, cultural and social and landscape significance.

6.Encourage mixed use activities serving the needs of the local community and local employment/business opportunities.

7.Maintain a diverse mix of housing and encourage the retention and provision of low cost housing.

8.Minimise significant adverse impacts from residential and non-residential development.

9.Ensure compatibility between land uses and the capacity of the transport network to reduce the need for multiple trips.

10.Encourage the use of alternative modes of travel to the private vehicle, while ensuring safety and convenience for all users including those with disabilities.

11.Provide an attractive and integrated system of public spaces responsive to the needs of residents and visitors.”

The “principles” include:

“2.2.3     Character and sense of place

Desired outcomes

1.The area is distinctively New Farm, attractive and appropriate to its environmental and cultural context.

2.The built form promotes comfort and is of a human scale.

Principles

1.Development should contribute to the distinctive and identifiable character and sense of place of both local neighbourhoods and New Farm as a whole.

2.Development should complement the existing urban and landscape characteristics and cultural associations important to New Farm.

3.Significant views and vistas are protected where possible.  Buildings are located and designed so they form strong and attractive vistas and memorable landmarks.

4.Development should be compatible with, and appropriate to, its physical, historical and cultural setting.”

(2.2.6 is Heritage and cultural identity.)

1. The co-respondents and the Council emphasise “where possible” in 3 immediately above, “predominantly” in the intent described for the precinct.  These terms import a degree of flexibility.  P1, as for any performance criterion, must be read in its context.  That it provides no guarantee of views being preserved unimpaired is clear from reference to the accompanying acceptable solutions.  A 5-storey building on a site (where 10 storeys are proposed) will inevitably impair river views from across Moray Street, just as the Gleneagles Towers foreclosed potential views – more pertinently, as other buildings approved and constructed in the precinct since the 5-storey standard came in, which exceed that standard, or the 15 m to ceiling standard, do.

Other City Plan provisions

1. The planning arrangements for Brisbane are said to be “performance based”.  It is expressly provided that acceptable solutions set out are not the only ways of satisfying scheme requirements.  Chapter 5 page 3 of City Plan provides:

“Performance Criteria and Acceptable Solutions

The Acceptable Solutions are in the right hand column of the Code table.  In some cases meeting an Acceptable Solution requires compliance with Australian Standards or the Plan’s Planning Scheme Policies.

For self assessment a proposal must comply with all specified Acceptable Solutions.

For code assessment a proposal that complies with all Acceptable Solutions will be approved.

For appropriate impact assessment a proposal that complies with all Acceptable Solutions will be approved, subject to:

●being able to be conditioned to mitigate any potential adverse impacts

●meeting the Code’s purpose

●meeting the Plan’s DEOs.

The Performance Criteria are in the left hand column of the Code table.  They provide a statement of the outcome that the Acceptable Solution must achieve.  A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met.

Notes may be included in specific Performance Criteria or Acceptable Solutions highlighting:
●           other legislation that may also need to be complied with
●           local laws that may also need to be complied with

●the reporting procedures that may assist in demonstrating compliance with particular Performance Criteria or Acceptable Solutions.

For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria.  There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose.  It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria.  A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.”

1. Such arrangements may frustrate the understandable expectations of those who consult acceptable solutions in the planning scheme to ascertain what development may be approved in areas of interest to them.  Acceptable solutions provide developers with assurance that compliance will procure approval; they can take their chances, if they elect not to comply, in respect of demonstrating that their proposals meet performance criteria.  Human nature being what it is, a common pattern is that people will prefer and expect others to comply with acceptable solutions, but appreciate the flexibility of being able to circumvent them by satisfying performance criteria in other ways in respect of development proposals of their own.  It is made clear by provisions following those last quoted that Local Plans (whether in respect of self-assessment, code assessment or impact assessment, for the last of which, by 1.1.3, listed relevant codes include the Heritage Place Code, Residential Design–Medium Density Code and Residential Design–High Density Code, are important.  “These level of assessment tables and Codes may be varied by the Local Plans in Chapter 4.”  The Council and co-respondents argue, and the court ultimately agrees, that relevant performance criteria in the Local Plan are satisfied.  The appellants argue that it makes a mockery of the whole notion of the Medium Density Living Precinct which represents the highest residential density recognised in the Local Plan.  They rely on general provisions in City Plan Chapter 2 regarding the residential neighbourhoods in Brisbane:

“4.2.2    The response

Residential neighbourhoods are the most extensive of the City structure elements.  They contain the elements that help make Brisbane so livable:  the residential areas and related amenities and facilities such as convenience shopping, local parkland, schools, churches, hotels and clubs.

The components of the residential neighbourhoods strategy are to:
●           meet realistic expectations of future amenity
●           ensure housing choice and affordability

●promote increases in density near high quality public transport  and close to the City Centre

●maintain character

●provide access to services and facilities

●maintain lands of environmental or scenic value

●discourage isolated subdivisions in developing areas and encourage land amalgamation and forward planning of neighbourhoods

●provide for some mixed use development

●coordinate the orderly and cost effective provision and augmentation of infrastructure.

4.2.2.1Meeting realistic expectations of future amenity

People should be able to choose their residential location with realistic expectations for the future amenity of the area.  The Plan’s strategic directions in this regard are to:

●prevent intrusion of development that could seriously detract from residential amenity

●allow development that complies with the Plan

●mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy

●ensure new residential development contributes to pleasant living environments and is designed to integrate with, rather than be segregated from, existing development in the area

●avoid through traffic in residential locations

●ensure residential neighbourhoods are adequately buffered to mitigate impacts of industrial and other non-residential uses.

●protect views from the impacts of development only where nominated in a Local Plan, or where development exceeds the relevant Code’s acceptable solution for building height, and as a result detracts from views from nearby properties.”

Italics have been added.  For what it is worth, in these appeals it cannot be said that it is the excess over five storeys that detracts from views, given that a five storey structure would detract from the view of the river to the same extent in practical terms. 

1. Chapter 3 describes the intent of the high density residential area:

“5.6.1     Intent

High Density Residential Areas are located close to the City with very good access to public transport and facilities.  High Density Residential Areas are in locations with outstanding views to the Central City or Brisbane River.

Development will be to a maximum plot ratio of 1.5.  Development will be no higher than 10 storeys and will address the street.”

The foregoing is apt to describe the present proposal in its context, rather than the corresponding intent for the Medium Density Residential area:

“5.5.1     Intent

Medium Density Residential Areas are located in near City locations with good access to public transport and centres.  Medium Density Residential Areas will accommodate single unit dwellings and multi-unit development up to 5 storeys.

On steeply sloping sites development will ‘step down’ the slope.  Development will have a maximum gross floor area of 80% of the site area.

5.5.2     Desired Environmental Outcomes

1.Medium density living environments predominantly comprise medium rise, medium density buildings of no more than 5 storeys.

2.The Area has a mix of dwelling types and sizes at different levels of affordability with adequate safety, privacy, quiet and comfort.  New residential developments are well designed and sensitive to the City’s climate and take advantage of attractive views and aspects and address the street.

5.5.3Level of assessment – Medium Density Residential Area and High Density Residential Area

●this level of assessment table applies to the Medium Density Residential Area and the High Residential Area

●if the site is in a Local Plan area, the Local Plan may change the level of assessment and/or the Applicable/Relevant Codes identified in this table

●for the following Local Plans the level of assessment is determined by checking this level of assessment table, and then checking the level of assessment tables in the relevant Local Plan to determine whether the Local Plan changes the level of assessment

●some Local Plans contained Codes.  These Codes provide additional and/or alternative Performance Criteria and Acceptable Solutions to the Code in Chapter 5 and take precedence over the Code in Chapter 5.”

The residential design – Medium Density Code (chapter 5) applicable in assessing a material change of use and/or building works for a multi-unit dwelling in a medium density residential area has among its performance criteria an acceptable solution:

P2       Building size must be consistent with the intentions for the Area

A2.1    Maximum gross floor area is

           ● up to 0.8 times the site area, where the site area is greater than 1,200 m²

           OR

           ● GFA = (1.2 times site area) – 480, where the site area is less than 1,200 m², where GFA and site area are both expressed in square metres.

A2.2    The site area is a minimum of 800 m² and has a minimum frontage of 20 m

A2.3    Building height at any point is no more than:

           ● 15 m from ground level to the underside of the ceiling of any habitable room

           ● 5 storeys above ground level

A2.4    Building length is no more than 30 m in any direction”

Without reference to chapter 4, the conclusion must be that the proposal would face extreme difficulty in gaining approval.  It represents high density development (at the top end of the range), not medium density development.

The expert evidence

1. For the appellants, Mr Buckley gave planning evidence, contrary to that of Mr Humphreys for the co-respondents and Mr Brown for the Council.  His approach comes down to the proposal being high density residential development under City Plan 2000, which is not acceptable in New Farm, in his view, although in the past it was.  He commenced his town planning assessment with this overview:

“The principal planning issues in these appeals relate to height, and overall floor space.  More particularly, the merits of this application from a planning point turn on the policy intent and provisions of successive planning schemes with respect to building height and profile, and the way that this policy is intended to be implemented.

Development applications involving height as an issue impact on an individual’s perception of amenity and character.  Throughout Queensland and particularly in areas subject to strong growth, the community’s understanding of impacts of buildings on their familiarity with their local area, and expectations about how a local area may change, are directly related to an understanding of building height.  It is the building dimension which is easily understood and because the majority of Australians live in low rise structures, anything above a low rise structure gains the attention of residents and visitors alike more than any other building parameter.  It generates energy and emotion with respect to particular outcomes in any area.

Across two planning schemes extending from the coming into force of the Local Plan for New Farm and Teneriffe Hill under the 1987 Town Plan (in 1998) up to the current regime under Brisbane City Plan 2000, there has been a consistent theme relating to:

·    the style of living for New Farm; and

·    building height.”

The two “dot points” are related, so that, for example, the height of the proposal is assessed as out of character for New Farm.  Mr Buckley concluded:

“Both City Plan and its predecessor sought to establish a building profile for New Farm that balanced the aspirations of increased residential densities with enhancing and preserving the special character of New Farm.

The special character is acknowledged in the planning documents and is considered to be the determinative planning consideration in these appeals.

When the scheme is read as a whole, including an acknowledgment of the differences between Medium Density and High Density Residential development, it is considered the development goes way beyond acceptable variations of the relevant codes.

For these reasons, the application is considered inappropriate from a planning point of view.”

1. Reference must be had to Chapter 4 and the New Farm Teneriffe Hill Local Plan in particular whose introduction proclaims it “prevails” if there is conflict with other City Plan requirements.  Their precedence is acknowledged in 5.5.3 of City Plan, set out in paragraph [20], in the “dot points”.

1. The appellants say there is no conflict, and that, accordingly, the general provisions for Medium Density Residential areas in City Plan apply.  That the developer could comply with both the Local Plan and those general provisions does not mean there is no conflict.  It prefers to propose more intensive development, which the Local Plan arguably allows, the general provisions do not.  As to building size, the Residential Design Medium Density Code Performance Criterion picks up the “intent” of a 5-storey limit.  The Local Plan brings it in only as an acceptable solution, acknowledging that there can be other ways of satisfying the associated performance criterion.  The Code specific to the Medium Density Precinct intriguingly avoids use of “Area” with a capital “A” (compare P2 in the general code), referring to “the area” with a lower case “a”, which in my opinion has the same connotation as “the vicinity” in P1 or “the locality” in P2, and is not to be taken as a reference to the “Areas” dealt with in the City Plan generally so as to render applicable planning requirements specific to those Areas by some operation of Local Plan provisions.

1. The contention that the proposal under consideration in these appeals would represent high density rather than medium density residential development is true enough, but is beside the point as it is the Local Plan that governs.  If “conflict” need be identified, I think that it exists.

1. To describe the proposal as typical high density residential development may be to understate things.  Lot 2 is fairly narrow.  Mr Hayes demonstrated by exhibit 52 that if the High Density Code acceptable solution apposite was applied in relation to side boundary setbacks, being three metres for (not quite) three levels, then half the building height, there could be nothing above 7 levels and levels 5, 6 and 7 would have be reduced to something like ¾, ½ and 1/3 of their current width.  It is fortunate for the developer that the city wide High Density Code (which doubtless encompasses less prescriptive ways of satisfying performance criteria) applies no more than the “medium density” one does.  These observations, however, impress on the court just how radical a departure from the preferred acceptable solution is proposed here for meeting the performance criterion.

1. Those views of Mr Buckley’s might on their face seem compelling, but they make insufficient allowance for the performance based nature of City Plan and for the fact that for purposes of these appeals, one really does not get beyond the Local Plan; there is no occasion to resort to the general parts to explain the Local Plan – to explain what is meant by “medium density residential”, for example.

1. Otherwise, setting aside the lay witnesses, the appellants relied on Mr Hayes, who produced separate reports dealing with heritage, architecture, urban design and visual amenity to counter those ranged in a phalanx against him by the co-respondents, Messrs Riddel, Robinson and Simpson and Dr Hassall; less expansively, the Council presented Mr Scott’s reports bearing on heritage and architecture.

1. Exhibit 9 was Mr Holland’s traffic report, dealing with some more mundane issues which (I hope I am right) the court need not resolve: in any event, the evidence is all Mr Holland’s way.  No traffic issue stands in the way of the proposal being regarded as acceptable.

1. The relevant Heritage Place Code provisions are: 

“Performance Criteria	Acceptable Solutions
P1       The proposal must not damage the cultural heritage significance of the heritage place, but provides for its future protection	A1      A report accompanying the application that verifies the proposal has been prepared in accordance with the Australia ICOMOS Charter for the Conservation of ‘Burra Charter’ Places of Cultural Significance 1998
P2       The proposal must be based on, and take account of, all aspects of the cultural significance of the heritage place	A2      A report accompanying the application that verifies the proposal has been prepared in accordance with the Guidelines to the Burra Charter: Cultural Significance
P3       The proposal must protect the fabric and setting of the heritage place, while providing for its use, interpretation and management	A3      A report accompanying the application that verifies the proposal has been prepared in accordance with the Guidelines to the Burra Charter.  Conservation Policy.
P4       The proposal must be based on the issues relevant to the conservation of the heritage place, with appropriate opportunity for community comment on the findings	A4      A report accompanying the application that verifies the proposal has been prepared in accordance with the Guidelines to the Burra Charter: Procedures for Undertaking Studies and Reports
3.2.2    Development on land adjoining a heritage place
Performance Criteria	Acceptable Solutions
Operational work or changes to buildings
P1       Views of the heritage place identified as significant in the Heritage Register citation must not be impaired by any aspect of the proposal, including landscape and building elements.	A1      No Acceptable Solution is prescribed
Subdivision
P2       The subdivision pattern must not result in buildings that would impair visible attributes of the heritage place identified as significant in the Heritage Register citation.	A2      No Acceptable Solution is prescribed”

1. Mr Hayes was in the witness box for the last day of evidence (29 May 2008) separated by almost six weeks from the others.  There is inevitably a good deal of overlap among the four areas of expertise which he dealt with; there were some advantages in having a single expert and I would pay appreciative tribute to Mr Hayes for the thoughtful and impressive nature of his contribution, from one who has the advantage of long familiarity with and practical experience in life and development in New Farm.  He collected a lot of threads together as the hearing came to its end.  No disrespect is meant to his counterparts in my use of extensive quotation from his evidence-in-chief as indicating helpfully the considerations for the court (the numbers in square brackets indicate a page in that day’s transcript):

“[8]       items of urban design are raised as being part of how an area works and they talk about landmarks, they talk about corridors, nodes, edges, and so as you travel along a road you see the edges of buildings, you see landmarks and things like that, … a visual relationship could be to do with being adjacent to a landmark and, as such, you would have to be conscious not to ruin the existing relationship of the buildings that exist. … A building would have some form of, I suppose, connection to adjacent buildings, you know, so that there was a pattern to the visual sense of the buildings side by side.  The statutory plans talk about being sympathetic to adjacent buildings as in heritage.  If a new building is adjacent to a heritage building the visual relationship must be one of support - rather than an overpowering or a demeaning.

[9]         Heritage buildings are important … it’s about a cultural background.  The existing buildings on Gleneagles, the 2 towers were seen as a pair of buildings and as such one of the landmarks of New Farm.  It’s a case not to destroy that sense of landmark, so that would be a - in relationship to height and bulk and scale that would be in relationship to height and bulk and scale adjacent.  There is the traditional way of looking at visual relationship with heritage buildings that you don’t block the view of it but a heritage building is more than just a piece of bricks and mortar.  It has meaning beyond.

[10]       A new building should accommodate the scale of the 2 buildings [adjoining it on the south-eastern side] from large to small.  It should not destroy the sense of landmark of the original Gleneagles pair.

The proposal … is virtually the scale of Gleneagles.  It’s, in visual terms on the site elevation … twice the bulk.  It’s twice the width.  In fact it’s a scale of both of those buildings put together rather than a single one. … And then when put in context with both its adjoining neighbours it creates a kind of lopsided clutter in a way.

…

I could say it retained a visual relationship which was poor, as opposed to a good visual relationship.

And I take it you take the criteria to be something – a requirement or a criteria to maintain something other than a poor relationship? – I – I feel … that most things try to make things better rather than worse.

[11]       Once the Local Plan is compromised to the extent of doubling what would be an expectation then I feel that this performance criteria would be a very poor solution for the increased height.  It doesn’t offer a positive solution to that performance criteria.

[15]       Thank you.  Mr Hassell, in his evidence, I think, was talking about a loss of nine degrees out of 270 degrees of views if the proposed tower went ahead.  Are you able to comment on that? --  It’s sounds like a little bit nine degrees but in point of fact it depends on where your relative position is and say, for example, this photograph on page 18 of this report, it shows that, in fact, the loss of view is probably more like 20 per cent – or 25 per cent or something like that but it is also more significantly – and it’s right in the mid point of your view, you know, so therefore it’s like going to the football and having a post in front of you because the post is not taking up much of your view but it’s actually – it’s ruining your day at the football because you – although you can look around it and you can see bits and pieces you’ve always got this post in front of you and so it would not be considered a good seat.

[16]       170 Oxlade drive was probably the first building to be granted an approval which had a seven storey component and a five storey component and so it had the five storey component adjacent to the adjoining building and had the seven storey component adjacent to Glenfalloch which is another high rise heritage building and it was built at a similar time to Torbreck and it’s a 14-storey building and so while it was a seven-storey building there was no compromise of its landmark status as a large modernist block beside the ferry and so that building then probably was the first one to significantly argue a performance-based solution rather than the acceptable solution of the five storeys and that was based on the fact that across the road was zoned LMR which was three storey max so the extra two storeys
probably had no impact on views as such.

[23]       Thank you.  Mr Riddel, when he was commenting on your heritage report, said that the impacts which you mention are not really heritage impacts.  Are you able to make any comment about that? -- Yes, … I suppose, it’s the difference between a high technicality and the sort of essence of what heritage building is.  I think Mr Riddel … argued the fact that the statement of significance did not say that the sidewall, I think, of Watsonia and Aville were of particular significance, I think.  I’m not entirely sure of this because I’m going back to six/seven weeks ago when we were going through those things carefully– and so my sense of looking at impacts on the heritage buildings takes into account the heritage code but also other parts of the City plan which make reference to, in the beginning the local character thing to development principles and – so what I’ve done is I’ve combined those sort of development principles which make reference to heritage and – heritage and character and in some ways – you can define it and you can say that heritage and character aren’t the same but character and heritage are, I believe, very connected because … they both come from the same desire of a community to have respect for things which, they believe, are important within their localities and heritage, it’s like high church and low church.  You know, so there’s a

[24]       gradation of – by some people held of the importance of the exact high level significance of heritage versus what its sense of place is and so I talk about the impacts of the proposed development overshadowing it and impacting on the adjoining heritage buildings but if I was to take exact significance statement as set out in the City plan it may not refer to that exactly … so in some ways, as I said, I believe that heritage is about the building and I think a comment was made that – you have see heritage for it to be heritage.  Now that’s one way of looking at heritage in an isolated academic way but for communities and for neighbours, heritage is about buildings which people like – so, for example, that means that you could have a heritage building and you could totally cover it with a new building.  Totally bury it inside a new building and it would still be heritage but the new building would be okay as well under that guise but in terms of, I believe, what I believe is the more common approach to heritage is that is about the essence of the building itself and the enjoyment of that building is part of streetscape in the local area … the City plan now there is a heritage code and then there was also an adjoining heritage code.  So it’s seen now as important within the City plan legal framework that if you build on a site adjoining a heritage building that it has to be taken into consideration, its impact on that heritage building and rather than saying that the heritage building doesn’t have to be seen to be strict heritage.

And does this proposal have an impact on adjoining heritage buildings, in your view? – I believe that the style of this development creates an impact on the smaller scale adjoining buildings.

…

I believe that the sense of overpowering on that is quite strong and it does have an impact and, in fact, I think is quite strong and it does have an impact and, in fact, I think Mr McDonald in his original heritage report which was part of the application to the council, he makes reference that it will have impact although then later on he says that the impact is not too great.”

Heritage – Demolition of a Building on a Heritage Place

1. One of the asserted defects in the development application relied on in the appellant’s case is that “as made and advertised [it] did not make application to demolish a building erected in a heritage place.”  It was contended that the approval suffers the same defect.  The proposal depends on removal from the site of the Clive Burdeu Building.  Any heritage merit it may have has escaped notice.  At relevant times, it shared lot 5 with the Gleneagles Towers which had been constructed nearly three decades earlier.  They are a heritage place, of whose heritage value the Council Heritage Citation says:

“Gleneagles is culturally significant as an innovative and award winning example of high rise accommodation for retirees in Brisbane which provides evidence of changing trends in housing for the elderly and demonstrates an important phase of development in the suburb of New Farm and the city of Brisbane during the 1960s.”

the significance being further down described more expansively:

“This is a place of local heritage significance and meets one or more of the local heritage criteria under the Heritage Register Planning Scheme Policy of the Brisbane City Plan 2000.  It is significant:

1.as it demonstrates a significant change in Brisbane’s development patterns during the 1950s and 1960s from predominantly detached dwellings and low-rise flats to an increasing amount of high rise accommodation in the inner suburbs.  It is important in demonstrating the evolution or pattern of the City=s or local area=s history; and

2.as the first high-rise accommodation in Brisbane for the elderly which provides evidence it provides of changing trends in the provision of accommodation for retirees in Brisbane during the 1960s.  It is important in demonstrating the evolution or pattern of the City=s or local area=s history; and

3.As an innovative solution to the demand for suitable accommodation for retired residents in a central location which was awarded the Royal Australian Institute of Architects Building of the Year in 1965.  It is important in demonstrating a high degree of creative or technological achievement at a particular period.”

1. It was very much part of the appellants’ case that views of the “Twin Towers” as a grouping ought to be protected to remind people of their contribution to the character and history of New Farm.  Of present interest is whether lot 5 as such is a heritage place, if so whether the Clive Burdeu Centre somehow constitutes a heritage place whose removal or demolition without Council’s approval or consent may attract penalty type consequences that, if Acceptable Solutions A1.2 and A2.2 have to be complied with, new development may not be any greater in height or GFA.  Trees have been recognised as heritage places, for example Hoop Pines at St Paul’s School, Bald Hills and fig trees in Allpas Parade, Shorncliffe, pine trees at Sunnybank Railway Station, Bunya pines at Manly West and the whole of Sherwood Arboretum, likewise a wall and garden in the Read House at Royal Esplanade, Manly.  Except in such cases, I am not persuaded that a site can be treated as a heritage place.  There is room for exceptions, such as the Holy Name Cathedral Site or Queens Gardens – St John’s Church Reserve, but not in present circumstances.  In my opinion, in the Schedule to the Council’s Heritage Register Planning Scheme Policy, the heritage place is what is listed in the left column, details of street address and real property description are there to assist locating the heritage place.  They are not themselves the heritage place.  Here the demolition or removal caught would be of Peregrine House or Falcon House.

The complex consisted of two towers: Falcon House (13 stories) closest to the Moray Street frontage and Peregrine House (16 stories) at the rear of the site near the river.  This complied with the height restriction for buildings under the prevailing planning scheme of 132 feet above natural ground level.  Tall point blocks allowed the maximum areas for gardens and communal areas and provided a large number of units.  Falcon House contained 44 double units and a Matron’s unit and office.  Peregrine House consisted of 53 units and a Savings Bank branch.  Both buildings featured communal roof terraces and lounges at ground level.  A single storey recreation building linked the towers.  This included a recreation room, utility room, toilets, river view terrace, courtyard and covered accommodation for 30 cars.  A dedicated chapel was also included in the complex.”

Having noted at 4.1 of his report that Lot 5 exceeded the original site in area, he proceeded in s 5 to consider this proposal’s “impact on significance”:

“5.1 Reconfiguration

The reconfiguration of the existing lot would recreate a new lot to contain Falcon House, Peregrine House and the Dining/Activities Hall which would be similar to Gleneagles’ original site prior to the recent development of the Clive Burdeu building.  There would be no change in the relationship of these buildings to the existing Moray Street, Brisbane River and north-western boundaries.

The new south-eastern boundary of the proposed Lot 1 would be located 3 metres away from Peregrine House.  This distance is considered adequate to retain a visual separation between Peregrine House and any new development on the adjacent lot, taking into consideration that a new adjacent building will have its own side boundary setback.

Both the historical and creative significance of Gleneagles will remain unchanged since, by itself, the proposed lot reconfiguration would impose no visual or physical change to Gleneagles.  The proposed lot reconfiguration would impose only an imaginary line on the site and would not facilitate any particular form of development that could not be applied for on the current lot configuration.

It is therefore considered that the proposed lot reconfiguration will have no impact on the cultural heritage significance of Gleneagles.

The impact on any existing or adjoining heritage places of new buildings on the proposed Lot 2 is addressed in Section 5.3 below.

Should the proposed lot reconfiguration be approved, it is recommended that the Gleneagles’ heritage register boundary be altered to accord with the newly-created Gleneagles lot and that the newly-created south-eastern lot be removed from the BCC Heritage Register as it would no longer contain any buildings of cultural heritage significance and would be unnecessary for Gleneagles’ curtilage.

5.2 Demolition

The Clive Burdeu building proposed for demolition was constructed in the early 1990s and did not form part of the original Gleneagles development.  The BCC Heritage Register entry describes this building as an additional single-storey building facing Moray Street and acknowledges that it was part of later changes to the Gleneagles buildings.

The Clive Burdeu building is a modest, modern building.  It makes no conscious design response to the original buildings, has no intrinsic architectural significance …”

The Council was justified in accepting these views, which the court is persuaded to accept on the merits.  They are borne out by the “heritage experts” heard from, Messrs Riddel, Scott and Hayes.

Bertholme

1. Except for the evidence including information about it, the appeals did not involve issues for the decision about Bertholme, immediately upstream of Gleneagles Towers, and an adjoining Heritage Place, if lot 5 be regarded as the development site, rather than proposed lot 2.  No party made submissions about Bertholme, which is included in the Queensland Heritage Register as well as the Council’s. Mr McDonald’s report accompanying the application in 5.3.4 notes its significance:

●as a rare surviving example of the type of riverside residences built in New Farm in the late nineteenth century;

●for its unpainted stone walls and decorative front fence which give the house a distinctive texture and an impression of strength;

●as the home of the Moreton Club, Brisbane’s premier private club for women;

●for its association with Andrea Stombuco, the first owner and one of Brisbane’s most flamboyant architects of the 1880s boom period.

and comments:

“The proposed development will have no visual impact on the cultural heritage significance of Bertholme as the new tower and low-rise building are proposed to be located on the other side of the Gleneagles towers which are immediately adjacent to Bertholme.

Notwithstanding this lack of impact, there are no views identified as significant in the heritage register citation for Bertholme which need to be protected and, therefore, there are no significant views which will be impaired.  Specifically, no views of Bertholme from the river are identified as significant nor are views from Bertholme to the river CBD.”

Amendments

1. During addresses, at page 70 of the transcript for “day 9”, the co-respondents (by Mr Hughes) indicated that “we want to seek to formally amend the application – to tick a box and add the words “demolition of Clive Burdeu building”; at page 74 he referred to an amendment to make a “second minor change … to the property description which … will bring inclusion of the road closure area”.  Applications in such respects have been long foreshadowed and were described in paragraph 39 of written submissions handed up earlier in the day as “proposed (if ultimately considered necessary)”.  The precautionary approach was persisted in; it was sought to amend the development application “if we needed” (page 76).  My question (77), “can I get from your submissions the precise words that you want to go in the order if you get that far?” was answered, “no”.

1. Mr Favell produced detailed written submissions on 10 June 2008 (after a long week-end) responding to the “changes to the application”; they are helpful in restating the technical arguments relied on; they culminate in a concluding submission that the changes sought are not minor under s 4.1.52(2)(b) of IPA, that the original development application was not properly made and should be refused.  I was reminded of a statement in Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481 at [6] that ordinarily an application to include additional land in the development application “would be given short shrift. It is basic to planning applications that the subject land be identified. One would not expect (except in cases of the most minor or obvious omissions) that a development approval could be extended under the section relied on to cover additional land.” In “exceptional circumstances” there, the proceeding was allowed to go on as one seeking an approval in respect of the extended site. I agree with the appellants that the change sought is not to the description of the land but to the land, by the inclusion of additional land, but I am uncertain of the import of the assertion that s 3.5.28 of IPA (referred to in Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 at 484, reported also as Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348 at 353 does not assist the co-respondents in respect of “road amalgamation” (paragraph 27). That amalgamation throughout has been, and I think remains independent of the application for development upon proposed lot 2. Another potential difficulty in retrospectively including the road area is that it converts the site to a riverfront one which may come within the purview of the Coastal Protection and Management Act 1995 so that the Environmental Protection Agency comes in as a concurrence agency: Hayday Pty Ltd v Brisbane City Council (2006) QPELR 261.

1. It is not proposed that development of the road area, except by the amalgamation, occur; that is subject to the further possible exception that landscaping conditions including removal of celtis etc. may relate to that particular area.  This strikes me as a consideration extraneous to a development proposal for lot 2.

1. It’s not necessary here to make a decision whether the amalgamation aspect represents minor change, because in my view it is unnecessary to change the application; at this point the co-respondents are yet to formulate a proposed order describing amalgamated sites in any event.

1. I would be reluctant to risk creating problems by changing the application to bring in new land now.  I accept that what has happened may have got out of order the creation of lots 1 and 2 (which must not only be approved, but also be implemented and legalised by registration) and amalgamation of the closed road.  Theoretically, there may be room for argument as to how the road area is allocated between lots 1 and 2.  This may be a fanciful notion, given that the commonsense proposal of continuation of the straight line boundary to the river is propounded by the owner, and that no other person has any proper interest.  There has not been an argument about this, but it should not be shut out of an opportunity to make appropriate submissions.  It may turn out that the Karreman extraordinariness exception is appropriate, if anything needs to be done to preserve the validity of the approval; it will not be every day that a development site is extended and its calculated impacts theoretically mitigated by the closing of an adjacent road.

1. As for the tentative request to include a specific demolition component in the development application in respect of the Clive Burdeu building, I am disinclined to require, or permit that, as it seems unnecessary.  That is the Council’s view, confirmed in Mr Hinson’s final written submissions of June 2008.  The applicant has not demonstrated that it would face any inappropriate burden if it had to seek some approval in terms permitting (as opposed to a condition requiring) demolition.  I am willing to entertain submissions in that regard.

The self-represented appellants

1. There can be no doubting the genuineness of the written closing submissions of the Uphams and Morgans, which range fairly wide and sometimes in emotive terms.  There is argument against Mr Dooley’s Barker Street proposal; which has Council’s approval, and a complaint that he “just keeps getting more and more” – as irrelevant as Mr Hughes’ repeated suggestions that his past developments exhibit high architectural or other qualities (hardly a basis for approving this one, which must succeed or fail on its own merits).  The expressed concerns about precedents being set are understandable.  I would endorse the complaint that lay people are likely to be misled by City Plan (and its counterparts elsewhere) into construing acceptable solutions as enforceable limits on development, which they are not, as becomes clear when one reads what is said of them in other physically remote parts of the planning scheme.  Ideally, some prominent “warning” should be printed directly adjacent to the acceptable solutions.  Mr Favell has comprehensively covered the arguments available to all appellants, effectively bearing the standard even if, contrary to my assessment, the Morgans and the Uphams, as lay people, found it difficult to mount and present their own appeals.

Conclusion

1. The foregoing reasons lead to the conclusion that all three appeals should be dismissed.