Collier v. Brisbane City Council & Anor; Sexton v Brisbane City Council & Anor
[2008] QPEC 34
•13 June 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Collier v. Brisbane City Council & Anor; Sexton v. Brisbane City Council & Anor [2008] QPEC 34
PARTIES:
Alan and Berna Collier
(Appellants)
v
Brisbane City Council
(Respondent)
and
Maxine Horne
(Co-respondent)
William John Sexton
and
Pamela Maud Sexton
Appellant
v
Brisbane City Council
(Respondent)
and
Maxine Horne
(Co-respondent)
FILE NO/S:
BD 2438 of 2005
BD 2439 of 2005
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
DELIVERED ON:
13 June 2008
DELIVERED AT:
Brisbane
HEARING DATE:
17, 18 and 25 March 2008
JUDGE:
Rackemann DCJ
ORDER:
The appeal is adjourned to allow consideration of conditions of approval
CATCHWORDS:
Submitter appeal against proposed extensions to a house – impact assessment – whether proposal which complies with acceptable solutions is otherwise unacceptable due to amenity impacts – reasonable expectations
COUNSEL:
Mr M J Connor Solicitor for the appellants
Mr P J Lyons QC with him Mr O’Brien for the co-respondent
Mr B D Job for the respondent
SOLICITORS:
Connor O’Meara for the appellants
Brisbane City Legal Practice for the respondent
Deacons for the co-respondent
These appeals are by submitters against Council’s approval of an application for a development permit for a material change of use, for land situated at 66 Markwell Street, Hamilton. The development permit would permit extensions to an existing house (which is a heritage place) on that site.
The subject site is located on a hill in the heart of suburban Hamilton. It comprises an area of approximately 2,823 sq m, has three street frontages (two to Markwell Street and one to Killara Avenue) and is irregularly shaped, with two “fingers” of land extending to the north and west respectively. The site is on the eastern side of a hill and affords attractive views to the east and north. It is currently improved by a substantial house “Berrimilla”, which is recognised for its heritage values in the Brisbane City Plan. That house faces the southern frontage to Markwell Street and is constructed with timber stumps, timber external cladding and an iron roof.
The appellants are adjoining land owners. The Sexton property lies uphill, to the west, of the 10 m wide northern “finger” of land which forms part of the subject site. The Collier property, on the other hand, lies downhill, to the east of that finger. Both properties have substantial residences built on them. The house on the Sexton property is 9 metres from the western boundary of the “finger”. The rear of the house on the Collier property is set back substantially from the eastern boundary of the “finger”. There is a swimming pool on the Collier property, between the rear of the Collier house and that boundary. There is also substantial vegetation to the rear of the Collier property.
The main component of the proposed extensions is the erection of a new northern extension in the northern finger of land, which lies between the Sexton and Collier properties. This proposed new building work would extend for a total distance of 18 m from the existing dwelling and be two storeys, with a maximum height of 7.5 m above ground. It would be set back between 2 and 2.05 m from the Collier property and 2.15 to 2.2 m from the Sexton property. It would contain a main bedroom, wardrobe, en-suite, study, and stairs at the upper level while, at the lower level, it would contain a massage room, bathroom, sauna, spa, deck, bridge and stairs. The plans show timber screens to western windows at both levels and landscaping at ground level. It is that proposed extension which is controversial between the parties. The development application also contemplates other additions and extensions, but they are not the subject of complaint by the appellants.
The grounds upon which the appellants contend that the application should be refused are set out in a letter from their solicitor dated 14 November 2007. Further particulars of those issues were provided in a letter dated 14 December 2007. They may be summarised as follows:-
1.The proposed extension will have an adverse impact on the amenity of the Sexton and Collier homes in that it will:
(a) be oppressive and overbearing.
(b) be incompatible and inconsistent.
(c) adversely impact on privacy.
(d) result in overshadowing of the Collier property.
(e) adversely impact on the outlook from the Sexton house; and
(f) be inconsistent with realistic expectations as a future amenity.
2.The side boundary setbacks do not comply with the Queensland Development Code.
3.The proposal would detract from, diminish and not adequately take into account the heritage values of Berrimilla.
4.The design and character of the proposed extension is inconsistent with the provisions relating to pre 1946 housing and character.
The letter which notified those issues referred to certain provisions of the Brisbane City Plan. By a further letter of 11 March 2008 the solicitor for the appellants gave notice that reliance would also be placed on a DEO in s 5.1.1 which provides “Dwellings have reasonable access to daylight, sunlight and breezes and have privacy”.
The only issue actively pursued at the hearing was that regarding adverse impact on the amenity of the Sexton and Collier properties. As to the other issues (adopting the same paragraph numbering):
2.As Mr Buckley (the town planner called by the appellants) conceded, the proposal does comply with the code. He was in error in believing it did not. That issue was abandoned, by a letter dated 10 March 2008.
3.The heritage issue was neither abandoned nor pursued by the appellants at the hearing. The issue, as notified, asserted inconsistency with the Character Residential Area provisions (intent and DEO 1) and the Heritage Place Code (purpose, performance criteria P1 and P2). No evidence was led by the appellants, from any person with expertise in heritage matters, to support the notified issue and Mr Buckley did not turn his attention to it. The issue was examined by Mr Michael Scott (an architect retained by the Council) Mr Lindsey Mack (an architect, with expertise in design, who was retained by the co-respondent) and Mr Peter Marquis-Kyle (an architect, with expertise in heritage, who was retained by the co-respondent). They prepared a joint report, which expressed their common view that “the proposed development will not detract from, diminish or inadequately take account of the heritage values of the heritage place (66 Markwell Street) as required by the Heritage Place Code, and the surrounding Character Residential Area as required by the Character Residential Area provisions”. Mr Marquis-Kyle also prepared a more detailed report for the hearing, in which he explained the basis for his conclusions. None of those experts were required for cross-examination at the hearing. I accept the evidence of Mr Marquis-Kyle, who found that the proposed development does not detract from, diminish or fail to adequately take account of the heritage values of the heritage place or the character of the residential area and I am satisfied that the proposal does not conflict with the relevant provisions.
4.The alleged deficiency of the proposed extension, in terms of design and character, was also an issue which was neither abandoned nor pursued by the appellants on the hearing of the appeal. Again, no evidence was led by the appellants to support this ground of the appeal. This ground was also considered in the joint report of the architects who concluded that:
“We agree that the design and character of the proposed extension is compatible in form, style, materials and detailing of pre-1946 housing character of the area, and is consistent with the Character of Residential Area provisions and the Residential Design Character code.”
Mr Marquis-Kyle’s court report again provided a more detailed explanation of the basis for his opinion. I accept his evidence and find that the proposal is not defective in this respect.
The determinative issue is whether the proposal would have an unreasonable impact on the amenity of the Sexton or Collier property in the respects alleged. As was acknowledged in the appellants’ outline of argument, the question is whether the impact should be judged to be unreasonable in the circumstances. That assessment must be informed, at least in part, by reasonable expectations having regard to the planning controls.
The court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate.[1] The subject application was made on 24 December 2004. There have been subsequent changes to the City Plan, but none of great significance to the outcome in this case.
[1] S 4.1.52
Pursuant to the City Plan, the site is included in a “Character Residential Area” and is also listed as a heritage place in the Heritage Register Planning Scheme policy, as “Berrimilla and Porphyry Gates”. At the time the application was made, the site was included in a Demolition Control Precinct, although the current version of City Plan shows that the site has been removed from that precinct.
If the proposal was not in respect of a heritage place, it would be either self assessable development (and so require no application) or code assessable development (against the Residential Design Character code and the House code) if it was included in a Demolition Controlled Precinct. The extension complies with the acceptable solutions in the applicable codes and could therefore proceed.[2] In that regard, s 1.1 of chapter 5 of the City Plan provides, in part, as follows:
“For self-assessment a proposal must be comply with all specified acceptable solutions.
For code assessment a proposal that complies with all acceptable solutions will be approved.”
[2] Subject to getting a development permit if it were code assessable.
The proposal, in this instance, is impact assessable (generally appropriate) because it relates to a heritage place. As the respondent and co-respondent pointed out however, the proposal is acceptable from a heritage perspective. Accordingly, it was submitted that the impacts of a proposal, which meets the acceptable solutions of the applicable codes otherwise should be regarded as reasonable and within reasonable expectations. In this respect, it was pointed out that an extension of this type, height and form would be code assessable development, warranting approval on many other properties in the area, which are similarly designated, but do not contain heritage places.
The appellants pointed out that, for better or worse, the proposal was subject to impact assessment and that the tests for such development under the City Plan are different than for self assessment or code assessment. In the case of impact assessment, clause 1.1 of chapter 5 provides:
“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 DEO’s.”
It should be noted that there are two categories of impact assessable development under City Plan, namely “generally appropriate” and “generally inappropriate”. Being “generally appropriate” impact assessable development, the proposal is of a kind for which adverse impacts are usually able to be mitigated.[3]
[3] See s 2.5.2 of chapter 3.
While compliance with acceptable solutions is relevant for impact assessment, it is not the only consideration. While Mr Buckley considered that a proposal which complied with acceptable solutions and all relevant codes would very often be approved, he expressed the view that this proposal failed to adequately mitigate its impacts or meet the code’s purpose or the plan’s DEO’s, notwithstanding its compliance with all acceptable solutions in applicable codes. Mr Kay, a consultant town planner called by the respondent, placed weight on the proposals conformity with all acceptable solutions. Mr Brown (the consultant planner called by the co-respondents) whose evidence I found to be particularly carefully considered and persuasive (and which I preferred), considered the relevant provisions, including the proposal’s compliance with the acceptable solutions, but also concluded that the proposal was appropriate, from a town planning perspective, even if one were to set to one side its compliance with the acceptable solutions.[4]
[4] T 48.
I will now turn to the respects in which it was alleged that the proposal would have an unreasonable adverse impact on amenity.
Oppressive and Overbearing
As Mr Buckley acknowledged, this is more of an issue for the Collier property than the Sexton property, although he thought that the length of the extension, seen in the context of the existing house was also relevant to its impact on the Sexton property.
Because the property is on the side of a hill, any development on it is likely to be below similar development on uphill properties (such as the Sexton property) and above similar property on the downhill side (such as the Collier property). This does not necessarily make the development unreasonably oppressive or overbearing in relation to the downhill property. It is a common consequence of development occurring on a hill.[5] Indeed both the existing house on the subject property and the Sexton house to an extent loom over the Collier property, which is on the downhill side.
[5] Which itself is not uncommon in Brisbane.
The appellants rely on performance criteria in P2 of the House Code which provides:
“Building height must not create overbearing development for dwellings and open space on neighbouring properties.
Building height must be consistent with those houses prevailing in the immediate area”.
The relevant of acceptable solutions is that no part of the house is more than 8.5 m above ground level. The proposed extension is only 7.5 m above ground level as defined.[6]
[6] And a lesser height relative to existing ground level.
Clause 1.1 of chapter 5 of City Plan states, in part, that:
“For code and impact assessment the acceptable solutions represent the preferred way of complying with the Performance Criteria.”
It follows that the co-respondent has adopted the preferred way of meeting performance criterion.
The appellants also rely on the purpose of the House Code. That statement of purpose does not deal specifically with this issue, although it does seek to ensure that houses are “compatible” with surrounding development, are of a height which allows reasonable access to daylight and sunlight and do not adversely impact on amenity. I am satisfied on the evidence, particularly that of Mr Brown, that the proposal does not conflict with the purpose of the Code.
Even approached on a “first principles” basis, I do not consider that the proposed extension is oppressive or overbearing. As Mr Brown pointed out, the Sexton property has the advantage of elevation. While the Collier property is on the downhill side, the house, which is orientated towards the street frontage, is set well back from the common boundary with the “finger” of land which is proposed to be developed and existing vegetation also provides visual separation. The extension, on the subject site, would be appropriately set back from its boundaries. The height of the extension, being two storeys, is within reasonable expectations. At 7.5 m above ground, the proposed extension is consistent with the height of buildings in the surrounding area and, indeed, as Mr Buckley acknowledged, is of a lesser height, relative to ground level, than other buildings. It has a relatively low pitched roof and is lower than the existing residence to which it forms an extension. That the proposal would make a large house even larger does not lead me to the conclusion that the result will be oppressive or overbearing.
I am satisfied that the proposal will not be oppressive or overbearing.
Character and Scale
In this regard, the appellants again rely upon performance criterion 2 of the House code, with which the co-respondent has achieved compliance in the preferred way, by adoption of the acceptable solution.
The appellants also again rely upon the purpose of the House Code. Again, the statement of purpose does not expressly deal with character and scale, although it does refer to compatibility with surrounding development. The appellants also rely upon parts of the Strategic Plan which refer to the maintenance of character.
City Plan confirms that the strategic plan “can be used” in the impact assessment process[7] but, as counsel for the respondent pointed out, one must bear in mind the broad scale nature of those provisions. In particular, City Plan states:
“Strategic Plan DEO’s apply across the whole city. They are considered when assessing large scale proposals or when cumulative impacts need to be considered. In assessing impact assessable development against the scheme, consideration will be given to whether the proposal will compromise the achievement of the DEO’s.
The strategies give broad directions for how the scheme is implemented to achieve the DEO’s. Significant development proposals may be assessed for consistency with the strategies where the area based DEO’s and relevant codes do not provide sufficient guidance or do not deal with cumulative impacts.”
[7] Chapter 3 s 2.6.
In their particulars, the appellants asserted:
“(a)The character of the proposed extension is inconsistent with and incompatible with adjoining development in that:
(i)The character of adjoining development is single detached houses of various styles incorporating open space and substantial setbacks between buildings and rear boundaries.
(ii)The proposed extension is not consistent with the character of adjoining development described above and represents an overdevelopment of the site which will visually dominate adjoining development.
(iv)The proposed extension is different in character and design from the existing Heritage Place, would have the appearance of being “stuck on” to the existing house and diminish the contribution of the Heritage Place to the character of the area.
(b)The scale of the proposed extension is inconsistent with and incompatible with the adjoining development for the reasons set out in paragraphs (1) (a), (c), (d) and (2) of our letter of 14 November 2007.”
Paragraphs (1a), (c), (d) and (2) of the letter of 14 November 2007 are otherwise dealt with in these reasons.
The type of development in the broader surrounding area and the character of that area was considered by Mr Brown, who accurately described it as being a mixture of old and new housing styles with substantial variations in the sizes of houses with some remnant multiple dwelling unit developments in the locality. Many of the dwellings are built relatively close to side boundaries, As is apparent from the photos included in the report of Mr Brown and exhibits 10 and 11, there is a considerable variation in existing houses in the area. As Mr Buckley conceded, it is fair to say that the photos demonstrate that houses in the locality are not inconspicuous or unobtrusive.
As sub-division and building work has taken place incrementally, the intensity of development has increased, with consequent impacts upon the overall space between buildings. As Mr Buckley conceded, it is not uncommon in this area to have houses which are quite close to one another.[8] As he also conceded, the distance between the rear of the Collier House and the proposed extension and between the rear of the Sexton House and the proposed extension is nothing unusual in this part of Hamilton, although he thought the development is still not in accordance with expectations (a matter which is referred to later in these reasons).[9]
[8] T 122.
[9] T 126.
In so far as character otherwise, including the character and design of the proposed extension relative to the existing Heritage Place, it has already been noted that the appellants did not call evidence from an architect and did not cross-examination the architects retained by the other parties. I am satisfied that the extension would not result in development which is inappropriate in character or design.
While it is true that the existing house on the subject site is a large house on a large site and will, by the extension, become a larger building, the town plan does not mandate that a house must be no larger than its neighbours.
I do not consider that the proposed development will result in an inconsistent or incompatible form of development.
Privacy
The appellants again rely on performance criteria P2 of the House Code, with which the co-respondent has achieved compliance in the preferred way by adoption of acceptable solution. They also again rely upon the statement of purpose in the House Code, which does not specifically deal with privacy although it does refer to amenity. Further, they rely on DEO5 of those which apply to all residential areas, which does expressly refer to privacy.
There can be no significant concern for privacy in relation to the Sexton residence. Their property has advantages due to the elevation of the land and the house which has been erected upon it. Significantly, the plans of the proposal show privacy screening to the windows and deck area on the western elevation, facing the Sextons. As Mr Buckley conceded, that is an appropriate way of preserving privacy on the Sexton property. When it was put to him that the impacts on privacy of the Sexton property were acceptable he responded “in broad terms, yes they would be”.[10] I am satisfied that there will be no undue impact upon privacy for the Sextons.
[10] T 152
The Colliers are in a different position, largely because of the topography. It is, of course, not unusual for one house to be able to overlook the property of another, particularly in hillside locations. The Collier property is already overlooked by the Horne property. The existing house has a veranda and set of windows which look down over the pool area to the rear of the Collier property. The Collier property, in turn, overlooks a set of flats to its immediate north.
The Collier property is orientated towards its street frontage. The area of concern, in terms of overlooking and loss of privacy is the outdoor recreation area, including the pool, to the rear of their property. That area was evidently developed in circumstances where there was already some prospect of overlooking from existing development.
For the reasons stated below, it is unlikely that there would be much overlooking from the upper level of the extension. There is, however, proposed to be a deck on the lower level, which would face the Collier property, although the prospect of further overlooking is minimised by the existing vegetation on the Collier property. Mr Buckley accepted that only “minor glimpses at most” of the Collier property would be available to someone walking along the lower deck of the proposed extension. While objection was taken to the notion that the Colliers ought to be forced to rely upon maintenance of their existing vegetation, in order to ameliorate the impact of the proposed extension, conditions could be imposed upon any approval, to require some shielding (by, for example, landscaping) on the subject site in order to guard against future loss of the Colliers’ vegetation.
In considering the likely significance of any overlooking/privacy issue, it is relevant in this case to have regard to the purpose for which the extension will be used. It would be, in effect, a relatively private wing of the house. The main living, entertaining and recreation parts of the property are located in the existing house and other areas. As can be seen from the site plan,[11] the proposed new pool and deck lie towards the southern boundary of the site, well removed from the Colliers or the Sextons.
[11] SKO1.
The top floor of the proposed extension consists of a master bedroom with associated facilities (walk-in robe/en-suite) opening out onto a deck, accessed from the master bedroom. The favourable views from that deck would be the long views to the north/east. Instances of people in the master bedroom, or even sitting on the deck, looking down upon people using the Colliers’ pool area are unlikely to be a frequent occurrence. Similarly, while there is a deck on the lower level, which would face the Collier property, it is one which accommodates a spa and is adjacent to a sauna, a massage room and a bathroom. The main entertaining and recreational parts of the property are located elsewhere.
Having been referred to the function of the extension and the location of recreation facilities elsewhere, Mr Buckley conceded that he had not previously considered the detail of what had been put to him and that those matters did tend to “sap the weight” of his evidence[12], although he did not change his conclusion.
[12] T 136 line 10-50.
I am satisfied that there will be no unreasonable loss of privacy for the Colliers, although it may be reasonable to impose some further conditions as to screening. That is a matter about which I will hear further argument.
Overshadowing
Again, the appellants rely on PC2 of the House Code, compliance with which has been achieved by the co-respondent in the preferred way, by adoption of the acceptable solution. They also refer to the purpose of the Code which does refer to “reasonable access to daylight and sunlight for neighbouring houses and their open space”.
For the reasons discussed later, in the context of considering the impact on outlook and view, the loss of amenity from overshadowing or reduced access to sunlight and daylight are issues about which the House Code expresses a particular concern in relation to buildings of over 8.5 m in height, rather than buildings of the height of this proposed extension. In any event however, the impact in this case would not be unreasonable.
Shadow diagrams appended to Mr Brown’s report demonstrate that the Sexton property will suffer little impact. The appellant’s issues speak of overshadowing in the context of the Collier house only. While the issue was raised, it was not the subject of particular analysis by Mr Buckley. As Mr Brown pointed out, the only overshadowing which might occur of the Collier House, is that which would block exposure to the western sun, which is not a preferred aspect. The extension cannot create a shadow which blocks exposure of the Collier property to the eastern sun. Further, the rear of the Sexton property will already be in shadow in the afternoon, by reason of existing vegetation.
I am satisfied that there will be no unreasonable overshadowing impact on the Collier property.
Outlook and View
The impact of the proposal on outlook and views is relevant only in relation to the Sexton property. In this respect, the appellants rely upon the purpose of the House code which, amongst other things, seeks to:
“Ensure houses over 8.5 m above ground level do not adversely affect outlook or views.”
Since the proposed extension is only 7.5 m above ground level, it does not conflict with this part of the purpose of the code.
That the House code’s concern is in relation to buildings over 8.5 m in height is reinforced by Performance Criterion 3 which states (my underlining):
“Building heights over 8.5 m above ground level are consistent with and repeated in the form of surrounding development.
Any additional part of the building over 8.5 m above ground level must not result in impacts on other dwellings or open space areas in terms of:
● Loss of amenity from overshadowing.
● Loss of amenity from reduced to sunlight and daylight.
● Loss of views or outlook.
The additional part of the building over 8.5 m above ground level must not result in reduced visual amenity of an area, particularly where the site is on a prominent ridge line.”
That is the only performance criterion in the House Code which expressly refers to outlook or views.
The appellants’ case suggests that the proposal conflicts with the House code by reason of overshadowing, reduced access to sunlight and daylight and loss of views or outlook, but fails to acknowledge that these are concerns which are specifically dealt with by the Code only in terms of development which exceeds 8.5 m above ground level.
That the City Plan does not seek to preserve all views in all circumstances, is also underscored by reference to s 4.2.2.1 of the Strategic Plan which, in the context of dealing with realistic expectations, provides that the plan’s strategic directions are to, amongst other things (my underlining):
“Protect views from the impacts of development only when nominated in a local plan, or where development exceeds the relevant codes acceptable solution for building height, and as a result detracts from views from nearby properties.”
It is difficult to escape the conclusion that the balance which the City Plan strikes in relation to retention of views is one which regards as reasonable, that impact which results from the development which accords with the relevant acceptable solution. The proposed development does not interfere with views that are protected in any local plan and the height of the building does not exceed the acceptable solution for building height. There is no conflict, in this respect, with the planning scheme.
Even if the assessment of the impact on views and outlook is approached on a “first principles” basis, I do not consider the impact to be unreasonable. Mr Buckley conceded that “just on its own” the impact was not unacceptable.[13] When it was put to him that the impact on views was an acceptable impact from adjoining residential development in a suburban area he responded, “Just from a first principles point of view, yes that’s probably right”.[14]
[13] T 152.
[14] T 152.
The photomontages produced by Mr Elliott assist in understanding the impact. My understanding of the evidence was also assisted by an inspection, including from inside the Sexton residence. It is apparent that attractive views, including expansive long views will be retained, particularly on the upper level of the Sexton property, from which one would be able to look over the top of the extension. The impact on views from lower parts is greater, but the overall impact is not undue.
Breezes
The appellants rely upon DEO No. 5 of s 5.1.1. That provision refers to dwellings having “reasonable access” to daylight, sunlight and breezes and having privacy.
There is no issue regarding access to daylight for the Sexton property. The issues of privacy and shadowing otherwise have already been dealt with. It is obvious that the Collier property will not be affected at all with respect to easterly, south easterly or north easterly breezes. With regard to the Sexton property, breezes from the north east and south east will be largely unaffected and, having regard to the relative position of the extension to the Sexton House, it is unlikely that easterly breezes will be affected at all on the upper level of the Sexton House.
I am satisfied that both the Sexton and Collier properties will continue to have reasonable access to daylight, sunlight and breezes notwithstanding the proposed extension.
Realistic Expectations of Future Amenity
Meeting realistic expectations of future amenity is dealt within s 4.2.2.1 of City Plan which provides as follows:
“People should be able to choose their residential location with realistic expectations for the future amenity of the area. The plans 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 the existing development in the area.
●avoid through traffic in residential locations.
●ensure residential neighbourhoods are adequately buffered to mitigate impacts of industrial 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 the building height, and as a result detracts from views from nearby properties.
These community expectations also need to be balanced with expectations of housing choice to meet residents needs during all stages of their life and to meet different lifestyle choices. These choices are discussed below in 4.2.2.2.”
It is by the more detailed provisions of the planning scheme, including the applicable codes, that the planning scheme endeavours to promote these things. In so far as the matters specifically dealt with in s 4.2.1 are concerned:
●I am satisfied that the development would not “seriously detract” from residential amenity.
●The proposed development complies with the plan.
●The proposal would not have any undue impact on access to daylight, sunlight, breezes and privacy.
●The proposal integrates with existing development in the area.
●The proposal does not affect any views nominated in a Local Plan and the proposal does not exceed the relevant Code’s acceptable solution for building height.
In opposing the extention, Mr Buckley relied not so much upon any one particular amenity impact, but on what he saw to be the cumulative impacts, judged in the context of what he considered to be reasonable expectations concerning development of the northern finger of land. In particular, he formed the opinion that it would have been reasonable for a person in the position of the Sextons or the Colliers to assume that the finger of land would remain undeveloped. Although he thought that there was a prospect of the finger being developed in the way which had less impact, he remained of the view that “I would have thought generally speaking there would have been an expectation of nothing occurring there.” This, in turn, materially affected his view of the acceptability of the likely impacts of the proposal.
There is no satisfactory basis for giving effect to an expectation that the northern finger of land remain undeveloped. In support of that expectation, the appellants pointed to the irregular shape of the property and speculated on the reason why that finger might have been created many years ago. Mr Buckley thought that the finger would have been created to protect amenity.[15]
[15] T 146
I am not prepared to speculate on the historical reasons for the shape of the subject property, nor is it particularly helpful to do so. As the court has said on many occasions, realistic expectations must take account of the contemporary planning documents. Reference to those documents would not lead to the conclusion that one could exclude the prospect of development on the finger of land in question. Further, that land is attractive for future development, not least because of the aspect it affords, is suitably designated and is of a sufficient size and configuration to accommodate development with appropriate boundary setbacks in accordance with the acceptable solutions of the applicable codes.
The expectations of the Colliers and the Sextons were not based on the planning documents. I intend no personal criticism in this respect, but their expectations should not lead to the finger of land being quarantined from development in accordance with the planning scheme or to a refusal of the present application.
Extraordinary site
In contending that the impacts of the proposal, considered collectively, pushed the proposal beyond the limits of acceptability, Mr Buckley relied on what he saw as the unusual or extraordinary circumstances. He agreed in cross-examination however[16] that there was nothing extraordinary about:
[16] T 153-154.
(a)The shape or configuration of the Collier or Sexton allotments.
(b)The placement of the dwelling houses upon the Collier and Sexton allotments.
(c)The fact of common boundaries being one allotment’s side boundary and the other allotment’s rear boundary.
(d)Development on land of 10 metres in width.
(e)Slope in a suburban setting.
(f)Stepping of residential development down slopes.
(g)Overlooking of dwellings in a sloping context.
(h)The extension of existing houses onto vacant land on the same allotment.
(i)Dwellings, or extensions to dwellings, being less than 8.5 m in height.
(j)Side and rear setbacks which comply with the Queensland Development Code.
Conclusion
I am satisfied that the co-respondent has discharged the onus, that the appeals should be dismissed and the application approved, subject to conditions. In particular, I am satisfied that the proposed development complies with the planning scheme, including the acceptable solutions of the House Code, meets the plan’s DEO’s and the Code’s purpose and is able to be conditioned to adequately mitigate potential adverse impacts. I will adjourn the further hearing of the appeal to give the parties an opportunity to consider the conditions of approval.
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