Cox v Brisbane City Council

Case •

[2013] QPEC 44

•

6 September 2013

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Cox & Ors v Brisbane City Council & Anor [2013] QPEC 44

PARTIES:

BERKELEY COX, CAROL COX, LINDA ERNST, TAMLYN LAMBERT, DARIN CARRUTHERS, DANA CARRUTHERS, GEOFFREY CRITTENDEN, JANITH CRITTENDEN and TOBY ESCOTT
(first appellants)

v

BODY CORPORATE FOR 2 HETHERINGTON STREET, COMMUNITY TITLE SCHEME 17375
(second appellant)

and

BJ PROPERTIES MANLY PTY LTD
ACN144470075
(third appellant)

and

MAYNE PROPERTY DEVELOPMENT PTY LTD
ACN009793444
(fourth appellant)

v

BRISBANE CITY COUNCIL
(respondent)

and

CHILDHOOD CANCER SUPPORT INC
(co-respondent)

FILE NO:

858/2013

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

27 (site inspection), 28, 29 August 2013

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed

CATCHWORDS:

Local government – Planning and environment – Proposed multi-unit dwelling for special needs housing in Character Residential Area – Need – Whether overdevelopment – Whether conflict with the planning scheme, including the LMR Code – GFA – Bulk and scale – Density – Site area – Open space provision – Setbacks – Whether local amenity compromised – Whether sufficient grounds to approve notwithstanding any conflict

COUNSEL:

A Walls for the appellant

T Trotter for the respondent

R Traves QC and N Loos for the co-respondent

SOLICITORS:

Gantt Legal for the appellant

Brisbane City Legal Practice for the respondent

Norton Rose Fulbright for the co-respondent

Introduction

  1. This submitter appeal is against the respondent’s approval of the co-respondent’s development application for a:

·    development permit for a material change of use for multi-unit dwelling – residential accommodation for people with special needs (four units); and

·    preliminary approval for building work (partial demolition and refurbishment of a house in a Demolition Control Precinct and building work associated with the multi-unit dwelling).

The Site

  1. The subject site is situated at 6 Hetherington Street, Herston.  It has an area of 455m2 and a frontage to Hetherington Street of 10.481m.  The Hetherington Street frontage has two alignments; a parallel alignment of 5.826m and a non-parallel alignment of 4.655m.  The lot has an average width of 10.058m and a depth of approximately 40m.  The site has an east/west orientation and slopes from the rear-eastern boundary down to the Hetherington Street frontage.  The site is currently developed with a high-set pre-1946 house situated on the front portion of the site.  The house is ripe for renovation.

The Proposal and Approval

  1. The proposal is to relocate the existing house forward by 2.1m towards the Hetherington Street frontage, refurbish it, convert it into a unit and construct three new additional units (1 x 3 bedroom and 2 x 2 bedroom) on the rear portion of the lot (making a total of four units on the site).  The proposed units are relatively small for two and three bedroom units. 

  1. The works proposed to the existing house include demolition of post-1946 additions and alterations, stairs, internal walls and features and a free standing outbuilding at the rear.  Those works constitute “minor demolition” and are not assessable.  Proposed new timber batons to the sides and rear of the undercroft of the existing house are not building work and therefore not assessable.  It is also proposed to reinstate the original front verandah in a style consistent with pre-1946 houses in the street.

  1. The three additional units will be constructed behind the existing house.  Communal open space is to be provided at the rear of the lot and private open space is to be provided as ground floor terrace or above-ground balconies.  The proposal includes a ramp along the northern boundary of the site, to provide equitable access to communal open space at the rear and through to the adjoining development of the co-respondent.

  1. Conditions were imposed by the Council which require, amongst other things:

(a)   the development to be carried out and maintained generally in accordance with the approved drawings[1];

[1]Conditions 1, 10, 11, 12.

(b)   building height to be in accordance with approved drawings[2];

[2]Condition 16.

(c)   windows of habitable rooms which adjoin habitable rooms of neighbours and windows overlooking balconies to be screened[3];

(d)  on-site parking for four vehicles[4]; and

(e)   restriction of the development to those with special needs for a period of 10 years[5].

[3]Condition 18.

[4]Condition 24.

[5]Condition 13.

The Locality

  1. The subject site forms part of a block bounded by Hetherington Street to the west, Butterfield Street to the north, Bramston Terrace to the east and Garrick Terrace to the south.  That block is characterised by a mix of houses and multi-unit dwellings of varying sizes, densities and styles.  Within that block the co-respondent has four separate residential facilities situated as follows:

(a)‘Nunyara’, which is located at 17 Bramston Terrace and consists of two single bedroom self contained units;

(b)‘Allara’, which is located at 11 Bramston Terrace and contains two single bedroom self-contained units and an administration office of four rooms;

(c)‘Kyeema’, which is located at 47 Garrick Terrace at the corner of Garrick Terrace and Bramston Terrace, and consists of one three bedroom unit and three double bedroom units; and

(d)‘Thiess Dempsey House’, which is located at 15 Bramston Terrace and consists of four double bedroom self-contained units.

  1. All the properties on the western side of Bramston Terrace within this block, save for two, are developed for multi-unit dwellings[6].  Immediately adjacent to the subject site, to the north in Hetherington Street, is a complex of six home units and four town houses on a 1500m2 site.  One of the appellants has an interest in all but two of those units/town houses.  Indeed all properties which adjoin the subject, save the one to the immediate south, have multi-unit dwellings[7].  To the south of the subject site in Hetherington is a series of pre-1946 character houses on relatively small lots.  There is little setback between those houses, giving a ‘cheek-by-jowl’ visual character.  Hetherington Street itself is a residential street with constructed traffic calming measures.

    [6]Exhibit 1, tab 1, appendix C.

    [7]Exhibit 1, tab 1, appendix A, fig 1, appendix C.

  1. The locality more generally consists of properties in the Character Residential Area and the Low-Medium Residential Area under the planning scheme.  However one defines the limit of this broader locality, the built form also features a mix of detached and multiple dwellings of varying densities and styles[8], including in the Character Residential Area.  Given the Area designations, further multi-unit development can be expected. 

    [8]Exhibit 1, tab 1, para 5.1.2.

Need for the facility

  1. Herston is an inner-city suburb of Brisbane.  The town planners agreed[9] that the area is well located to accommodate units as:

    [9]Exhibit 1, tab 1, para 5.1.2.

·    it is close to an arterial route (Bowen Bridge Road/Lutwyche Road corridor) and major transport routes including Airport Link, Clem 7 Tunnel and the Inner City Bypass;

·    it is close to high frequency and suburban public transport routes;

·    it is easily accessible to a major facility being the Royal Brisbane and Women’s Hospital; and

·    it is close to a variety of recreational and community facilities including a local park (Rasey Park), a sports complex (Downey Park) that offers a variety of organised sporting opportunities and Ballymore stadium.

  1. It has already been noted that the subject units are intended to provide residential accommodation for people with special needs.  The co-respondent is a Queensland registered charity which was established in 1975 and provides family-style accommodation for those dealing with childhood cancer.  In particular, the co-respondent provides live-in accommodation in fully self-contained units near the existing children’s hospital at Herston. 

  1. As Mr Thompson (a member of the board of the co-respondent) explained, the treatment facilities for childhood cancer are concentrated in Brisbane, rather than in regional centres.  Patients and their family/carers must travel to Brisbane and so require suitable accommodation, in Brisbane, during periods of treatment[10].  Consequently, the accommodation offered by the co-respondent is predominantly used by those coming from outside of Brisbane[11].  The median lengths of stay are close to 100 days, with 25 per cent of stays being over 200 days in length[12].  The statement of Mr Thompson includes the following:

“Our service extends to not only providing accommodation but also offering a communal bus, which will soon be extended to two buses, to transport patients and children to the hospital, provide transport for parents’ grocery trips, and provide transport to and from the airport for regional families whose children must come to Brisbane for treatment and doctor appointments.”

[10]T1-8.

[11]T1-9.

[12]Exhibit 1, tab 12, para 7.

  1. As Mr Thompson also explained, children undergoing treatment often have suppressed immune systems.  It is important therefore, to offer accommodation which is self-contained (without the need to use communal areas), reduces the necessity for the children to come into contact with others and which can be easily cleaned and kept in a hygienic state (by the use of hard, non-porous, easily cleaned, surfaces in preference to the use of carpet and wooden surfaces)[13]. The accommodation also needs to be affordable, as caring for children with cancer often imposes a financial strain.  The co-respondent does not charge for its services (beyond receiving a government rebate)[14].

    [13]T1-16.

    [14]T1-16, 17.

  1. The co-respondent is the only service provider offering this kind of accommodation.  As Mr Thomson’s statement says:

“No other service provider has developed the specialised type of family accommodation needed by oncology children and their families.  All other alternatives are of greater cost to the families, cannot accommodate more than the carer and child and/or may pose a higher risk of cross-infections due to the sharing of facilities by families and in some cases other disease sectors.”

  1. The facilities offered by the co-respondent do not match the demand.  The co-respondent can currently only offer 12 units.  The demand is approximately 200% of the supply[15].  That situation has persisted for at least three years and is not improving[16]. There is a waiting list for the accommodation offered.  The co-respondent’s units are provided to those who are assessed by a welfare officer at the hospital as in need[17].  The fact that there is a persistent waiting list means that there are children and their carers/family who need this type of accommodation, but must make use of less suitable accommodation options instead.  As Mr Ramsay (the appellants’ town planning witness) acknowledged, the proposed use provides a much needed service[18].

    [15]T1-18.

    [16]T1-18, 19.

    [17]T1-15.

    [18]T2-21, exhibit 1, tab 1, para 7.1.9.

  1. It was pointed out that the State is in the process of constructing a new children’s hospital at the Mater in South Brisbane.  For this reason, the co-respondent has been looking (so far unsuccessfully) to secure an opportunity to provide some accommodation at South Brisbane[19].  If and when it obtains and develops such a site, the co-respondent will operate a ‘dual campus’.  The subject site however, offers an opportunity to address, at least in part, the pressing need in the meantime.  Understandably, the co-respondent would prefer not to exercise the option of taking one of its existing facilities ‘off-line’ (thereby exacerbating the shortfall of available units) while it is refurbished to offer more units[20]. I accept Mr Thompson’s evidence that the Herston accommodation precinct (including Hetherington Street) will continue to be needed to meet the current, medium and longer term accommodation demands[21].  I am satisfied that there is a need for the proposal.

    [19]T1-22, exhibit 1, tab 14, para 13.

    [20]T1-20, exhibit 1, tab 12, para 12.

    [21]Exhibit 1, tab 12, para 12, tab 14, paras 15 and 16.

The Issues

  1. The proposal involves two components being:

1.          the relocation of the existing house, which is to be refurbished; and

2.          the creation of a multi-unit dwelling development.

It is the second of those components which was the focus of the issues raised by the appellants. 

  1. The appellants contend that the proposed development is not suitable for a site of the area and dimensions of the subject and will, as a consequence, have adverse amenity impacts.  In effect, the appellants suggest that the proposal is an over-development of the site.  In particular, they contend that:

1.the gross floor area and density of the proposal is excessive and its size and bulk is not consistent with the low density nature of the locality[22];

[22]Paras 7-11 and 25 of the Notice of Appeal.

2.bonuses based upon affordable housing or special needs provisions are unwarranted[23];

[23]Paras 21-22 of the Notice of Appeal.

3.the site area is too small[24];

[24]Paras 12-13 of the Notice of Appeal.

4.the open space is deficient[25];

[25]Paras 14-16 of the Notice of Appeal.

5.setbacks are inadequate[26];

[26]Paras 17-20 of the Notice of Appeal.

6.the proposal materially conflicts with the Residential Design – Low Density, Character and Low Medium Density Code (LMR Code)[27], and

[27]Para 6 of the Notice of Appeal.

7.the development is of a ‘generally inappropriate impact assessable’ type and is inconsistent with the criteria for approval of such development[28] in that:

[28]Para 23 of the Notice of Appeal.

(a)the siting, bulk, scale, size, density and setbacks of the proposed development do not accord with the reasonable expectations for the Area.

(b)the proposed development will detract from the amenity of the locality

8.the proposed development compromises local amenity[29].

The grounds of appeal also raised doubts about the validity of the development application, but that issue was not pursued on the hearing of the appeal.

[29]Paras 5 and 24 of the Notice of Appeal.

  1. The respondent and co-respondent deny that the proposal is over-development of the site and deny conflict with the planning scheme.  In the alternative, they contend that there are sufficient grounds to approve the application despite any conflict.

The Planning Documents

  1. The relevant planning scheme is Brisbane’s City Plan 2000.  A draft new City Plan has been the subject of public notification, but the draft contains no significant changes from the current planning context applicable to the subject site. Attention focused therefore, on the current provisions.

  1. The site falls in the Character Residential Area and is therefore also in a Demolition Control Precinct.  In the Character Residential Area, multi-unit dwellings are impact assessable, generally appropriate where complying with the LMR Code and pre-1946 houses are retained.  They are impact assessable – generally inappropriate otherwise.

  1. The site falls within the Ithaca District Local Plan Area, however, it is not included in a specific precinct.  The Local Plan does not alter the level of assessment for the application and was not the subject of argument.

  1. The applicable codes include the Demolition Code, the stated of purpose of which includes:

“·        Protect the residential buildings that give the residential areas and the demolition control precinct their traditional character and amenity.

…

·In conjunction with the residential design-character code, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in those precincts compliments the houses constructed in or prior to the end of 1946.

  1. The purpose of the Residential Design-Character Code[30] is to:

“·        Encourage development in Development Control Precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing.

·In conjunction with the Demolition Code, ensure that precincts of pre-1946 houses are retained and redevelopment in those precincts compliments the pre-1946 houses.”

[30]There was some discussion of its applicability (see exhibit 1, tab 13, para 4.1.3(b)), but that is unnecessary to resolve.

  1. In their joint report, the town planners agreed that the relocation of the existing dwelling, which is to be refurbished, is consistent with the intent of the Demolition Code and Residential Design-Character Code[31].  It was not suggested that the proposed new built form, to the rear of the house, would offend the Residential Design-Character Code[32].  Indeed, its location, height and design are such that the new part of the proposal would be barely visible (if at all) from Hetherington Street and would therefore have no or little effect on the streetscape.  The works proposed to be carried out in relation to the existing house will, as Mr O’Brien (the visual amenity expert called by the co-respondent) said[33] and Mr Ramsay conceded[34], result in an enhancement of the pre-1946 character of the existing house and consequently of the streetscape.

    [31]Exhibit 1, tab 1, para 5.1.3.

    [32]No conflict with that Code was asserted in the grounds of appeal.

    [33]Exhibit 1, tab 11, paras 23, 24.

    [34]T2-12, T2-14.

  1. Whilst the Residential Design-Special Needs Code was not relied upon by the appellants in their grounds of appeal, it applies to residential development for people with special needs who may require care due to reasons of age or health.  The summary provisions relating to the applicability of specific codes[35] suggest it is relevant.  The Purpose of this code is seven fold.  In summary it seeks to achieve –

    [35]Ch 5, page 10 (exhibit 2, page 53).

·     Appropriate levels of amenity for residents and surrounding properties;

·     Safety and security;

·     Promoting the provision of comfortable living environments;

·     Providing residents with personalised living spaces;

·     Provision of social and physical needs;

·     Proposals are integrated with existing urban fabrics and visually compatible;

·     Proposals are well located with respect to transport, shops and services.

Additionally, this Code also makes specific provision for additional gross floor area and a reduction of on-site car parking, as does the LMR Code.  The issues of development bonus and of amenity are dealt with later. The Code raises no additional issues of significance in the case.

  1. Provisions relating to the Character Residential Area make it clear that, whilst such areas “will primarily accommodate pre-1946 houses”, new multi-unit dwellings, incorporating the pre-1946 dwelling in the development, are also envisaged.  The proposal is of a nature which is consistent with that intent. 

  1. The debate focused more on the proposal’s, compliance or otherwise with the LMR Code, being an applicable code.  That code applies in assessing a material change of use and/or building work for a multi-unit dwelling in one of the number of areas, including the Character Residential Area.  The purpose of the LMR Code is as follows:

“As the areas to which this code applies will contain a mix to houses and multi-unit development, the purpose of this code is to effectively manage impacts of the new development on neighbourhoods while:

·Ensuring new development is compatible in the scale and design with neighbouring houses.

·Retaining pre-1946 dwellings and character residential areas, with new development at low intensity in keeping with pre-1946 architectural themes.

·Retaining pre-1946 dwellings or ensuring new development in demolition control precincts is in keeping with pre-1946 architectural themes.

·Encouraging multi-unit development that provides a pleasant living environment for its occupants.

·Encouraging low cost and special needs housing such as boarding house or aged care accommodation by allowing an increase in gross floor area and a reduction in on-site car parking where the low cost and special needs housing does not compromise local amenity, is secured for at least 10 years and is administered by a housing co-operative, the government or council agency or charitable organisation.

·Ensure that multi-unit development does not impact adversely on landscape or ecological values.”

In so far as the second last of those statements of purpose is concerned, it is common ground that the subject proposal is for special needs housing which is proposed to be secured for at least 10 years and administered by a charitable organisation, namely the co-respondent[36].

[36]Exhibit 1, tab 1, para 5.1.4.

  1. The LMR Code contains a number of performance criteria and corresponding acceptable solutions.  Mr Ramsay placed great store in the departure of the proposal from a number of Acceptable Solutions.  Mr Ramsay appeared to be heavily influenced by the Acceptable Solutions, having regard, amongst other things, to his understanding (gained from his time at the Council) of what the Council was trying to achieve when the predecessor to the Character Residential Area (the Residential A+ Zone) was introduced[37].  There are two observations to be made about that.  First, the planning scheme is to be interpreted by reference to the words used, rather than Mr Ramsay’s understanding of what was sought to be achieved when the predecessor to the current provision was first introduced.  Secondly, departure from an Acceptable Solution does not establish conflict with the applicable code.  As City Plan states:

“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.

…

The code and impact assessment of 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 insignificant details, will be refused where it cannot be conditioned to mitigate impacts.”

[37]T2-5.

  1. Accordingly, City Plan contemplates departure from the Acceptable Solutions whilst meeting the performance criteria.  That is a familiar performance-based approach.  Further, it contemplates that approval might be granted even for a proposal which fails to comply with the performance criteria if the non-compliance is insignificant or if the proposal can be conditioned to mitigate impacts.

  1. The performance criteria and Acceptable Solutions which were the focus of attention are as follow:

4.2 Multi-unit dwellings in Character Residential Areas

Performance Criteria

Acceptable Solutions

P1    Building size and bulk must be consistent with the low density nature of the locality

A1.1   Gross floor area is not more than 0.5 times the site area

A1.2   Building height at any point is no more than 8.5m above ground level and 2 storeys

A1.3   The number of dwellings does not exceed 1 per 300m2 of site area

A1.4   The site is a minimum of 800m2 and has a minimum frontage of 20m

          Note: all Character Residential Areas are included in Demolition Control Precincts and are also subject to the Residential Design-Character Code

5. Part B - General Performance Criteria and Acceptable Solutions for multi-unit dwellings

Performance Criteria

Acceptable Solutions

P9    Development must provide sufficient communal and private open space for residents needs

A9.1   A minimum 30% of the site is provided as open space each with a minimum dimension of 2m

A9.2   A landscape area of minimum dimension of 2m is provided along the full frontage of any road frontage (excluding crossover and pedestrian access only)

A9.3   For a ground floor dwelling, ground floor private open space is provided with:

·     Minimum area of 35m2

·     Minimum dimension of 3m

A9.4   For a dwelling unit above ground level, private open space is provided as a balcony with a minimum dimension of 3m

P13  Development must not significantly reduce daylight to open space and habitable rooms in adjacent development

       Boundary walls must be limited in dimensions and openings, to minimize the impact on neighbours.

A13.1   The side boundary setback except for a wall built to the boundary, is a minimum of:

·     1.5m for a wall up to 4.5m high

·     2m for a wall up to 7.5m high

·     2m plus 0.5m for every 3m (or part of 3m) over 7.5m height for a wall over 7.5m high

·     Less than 1.5m where the wall is not more than 3.5m high and no more than 15m long

A13.2   A wall built to a side boundary has:

·     A maximum height of 3m, unless it abuts a higher existing or simultaneously constructed wall

·     A maximum length of 15m where it does not abut an existing boundary wall

            Note: where a wall built to the boundary has a height less than 2m measured on the adjacent property, it can extend the full length of the boundary, less any front or rear boundary setback

A13.3   Minimum rear boundary setback is 6m

            Note: minimum setbacks do not apply to eaves and sunshading devices

P23  Low cost housing is encouraged through development bonuses but only if it does not compromise local amenity

A23    If accommodation provides for permanent residents or is administered by a housing cooperative, a Government or Council agency or charitable organisation to provide low cost, special needs or aged care accommodation for at least 10 years and height limits and setbacks are complied with:

·     The plot ratio of low cost and special needs housing may exceed the plot ratio applicable to multi-unit dwellings in the area

·     On-site parking may be less than otherwise stated in this Code provided it meets expected requirements.

  1. Performance criterion 1 of 4.2 (and its Acceptable Solutions) was the primary focus of the ‘over-development’ debate.  The performance criterion relates to building size and bulk and, in particular, whether it is consistent with the low density nature of the locality.  The Acceptable Solutions set parameters in terms of maximum gross floor area (GFA), building height, dwelling density, minimum lot size and frontage.

  1. The proposal exceeds the GFA (of 0.5 times site area) stipulated in Acceptable Solution A1.1.  While that is only an Acceptable Solution, the planning scheme otherwise suggests that this parameter is ordinarily regarded as important.  In particular, the Statement of Intent for the Character Residential Area speaks of “strict adherence to a maximum gross floor area of 50%”.  That part of the Intent must however, be read in the context of the planning scheme as a whole and specifically in light of the purpose and provisions of the LMR Code which offer a GFA bonus to encourage low cost and special needs housing, such as is proposed.

  1. The bonus is referred to in P23 of section 5 of the LMR Code[38].  It was pointed out for the appellants, that A23 was not satisfied because “setbacks” are not complied with.  That is a reference to the fact that the setbacks for the proposal do not meet the Acceptable Solutions to P13.  The proposal does not however, have to fall within A23 to be deserving of a bonus.  Compliance with the Acceptable Solution is the preferred way of establishing that local amenity would not be compromised, as required by the performance criterion, but it is not the only way.

    [38]The parties approached that provision as if it referred to special needs as well as low cost housing. A similar provision expressly for special needs housing appears in the Residential Design – Special Needs Code.

  1. The setback issue and the likely impact of the proposal on local amenity are dealt with later.  I am satisfied that the proposal would not compromise local amenity, is deserving of a development bonus consistently with the purpose of the Code and P23 and does not have a GFA which causes the proposal to offend P1.

  1. The height of the proposal is within A1.2.

  1. The proposal departs from A1.3 and A1.4, as would any multi-unit proposal on the subject site.  This lies at the heart of Mr Ramsay’s opposition to the proposal.  In his view allotments of the size of the subject should not be development for multi-unit development.  In his view, allotments of this size should simply retain a single dwelling, while allotments of 800m2 (and a 20m frontage) could have one extra dwelling, allotments of 900m2 or more could have two extra (three in total), allotments of 1200m2 could have three more (a total of four) and so on.  While he acknowledged the performance-based nature of the LMR Code, he saw adherence to the Acceptable Solutions as underlying the success of the Character Residential Area provisions (and their predecessor)[39].  It was submitted, on behalf of the appellants, that the LMR Code is not intended to apply to small lot development which is, instead, governed by the Residential Design-Small Lot Code.

    [39]T2-5.

  1. As has already been noted, while the Acceptable Solutions represent the preferred way of achieving the relevant performance criterion, they are not necessarily the only way.  There is nothing in City Plan which seeks to exclude consideration of multi-unit developments, on a performance based approach, on lot sizes smaller than specified in A1.4 or at densities greater than specified in A1.3 in the Character Residential Area.  While the Statement of Intent for the Character Residential Area refers to dwelling density at a rate of 1 dwelling per 300m2 of site area, that parameter is not subject to the “strict adherence to” description that is reserved for GFA.  Further, there is no reference, in the Statement of Intent, to a minimum lot size or frontage for multiple dwellings.  This contrasts with, for example, the Statement of Intent for the Low Density Residential Area which states that “multi-unit dwellings will only be allowed on sites over 3000m2”[40].  The Residential Design Small Lot Code does not apply to all development on small lots, but rather applies in assessing a material change of use and/or building work for a house on such a lot[41].

    [40]s5.2.1.

    [41]Exhibit 2A, section 1, first para.

  1. Ultimately therefore, insofar as P1 of 4.2 of the LMR Code is concerned, the question is whether, notwithstanding the departure from the Acceptable Solutions, the proposal would nevertheless be of a size and bulk consistent with the low density nature of the locality.  I am satisfied that it would.

  1. It has already been observed that the locality, whatever its outer limits, is composed of a mix of detached dwellings and multi-unit developments.  It is apparent that the size and bulk of the proposal falls within the range which exists in the locality.  Indeed, the bulk and scale of the proposal is markedly less than the adjoining 10 unit/town house development to the immediate north, even though the dwelling unit density is lower on that site.  As Mr Ovenden pointed out, while the subject site area is small, the proposed building too is of a smaller scale than what might be achieved, adopting the Acceptable Solutions, on a larger site[42].  As he pointed out in the joint report,[43] it is comparable to the bulk and scale (though somewhat longer than) to what could be achieved with an extension of the existing house.  Mr Mulcahy (the respondent’s town planning witness) saw the difference as minor and not so significant to warrant refusal of the application[44].

    [42]T1-62, 63.

    [43]Exhibit 1, tab 1, para 6.2.7.

    [44]Exhibit 1, tab 9, pg 2, 4.

  1. Mr Ramsay appeared to focus on what he saw as the low density developments within the locality, rather than the low density nature of the locality[45] and, in particular, on the single detached houses on small lots in what he described as a “precinct of detached houses on small lots” within Hetherington Street[46].  The proposal is evidently not for a single detached house on a small block but:

(a)    the “low density nature of the locality” is not to be confined to a consideration of the existing built form in the precinct of which Mr Ramsay spoke, and

(b)   in any event the bulk and scale of the proposed development will be hidden behind the existing residence, is designed to break up its scale and bulk and will be comparable to what could be achieved by a house extension.

[45]Exhibit 1, tab 1, para 6.2.2.

[46]Exhibit 1, tab 1, paras 6.2.8, 6.2.9.

  1. Attention was drawn to the proposed dwelling unit density of 1:113.75, compared with that stated in A1.3.  It is understandable that housing for this specific purpose, which involves shorter stay (rather than permanent) accommodation, would feature a larger number of smaller units than vice-versa, thereby affecting dwelling unit density.  That alone however, does not explain the extent to which the dwelling unit density of the proposal is greater than that stipulated in the Acceptable Solution.  As Mr Ovenden pointed out however[47], there are a range of unit densities in the locality, down to as low as 1:101m2.  It was pointed out, on behalf of the appellants, that most of those to which he pointed predate the current provisions (or their predecessors).  That may be acknowledged, but they still form part of the assessment of the low density nature of the locality. 

    [47]See exhibit 6A.

  1. An examination of the various buildings, particularly the adjoining development to the north, reveals that relative dwelling unit density, in numerical terms, is not always a good indicator of the impact of bulk and scale on the low density nature of the locality.  The bulk and scale of the building to the north has a greater impact on the low density nature of the locality than the subject proposal would.

  1. It must be acknowledged that the bulk and scale of the proposal has been located and treated in a way which minimises its impact on the low density nature of the locality.  The new development is to be located to the rear of the retained house   and will be out of view from Hetherington Street or indeed from the other streets in the block in which it is situated[48].

    [48]T2-14, 15.

  1. Further, the design of the proposed new built form is obviously responsive to issues of bulk and scale.  The height of the proposed new building, at its highest point, is 1.5m lower than the Acceptable Solution and slopes down towards the rear.  The side elevations are articulated, have differential surface treatments and will be fitted with sunhoods and privacy screens.  Overall, the development, viewed from the front will present as a single house and, from the side neighbours, as 3 building components.  Mr O’Brien (the visual amenity expert called by the co-respondent) observed that “there is a greater breaking down of the bulk and scale in this proposal than I have seen in many other examples”[49].  

    [49]Exhibit 1, tab 11, para 26.

  1. Mr Ramsay, for his part, saw non-compliance with P1 not so much because of the size and bulk of the proposed building per-se, but because, in his view, the backyards of allotments of this size should be preserved from intrusion by multi-unit dwellings[50].  That issue is discussed later.

    [50]T2-333, 35.

  1. I am satisfied that, in the circumstances and in its context, the proposal complies with P1 of 4.2 of the LMR Code.

  1. Performance criterion P9 of section 5 of the LMR Code requires development to provide sufficient private and communal open space for residents needs.  At 22.2% of site area, the total open space provision is less than the 30% referred to in A9.1.  The question is whether the proposal nevertheless meets P9 by providing sufficient space for ‘residents needs’.  It is relevant to have regard to the likely nature of the residents and their needs.  The proposal is, for 10 years at least, to accommodate those with special needs and their carers/family.  In particular, the proposal is to provide accommodation for childhood cancer suffers during treatment.  As Mr Ramsay acknowledged[51], the children are likely to be feeling physically ill from treatment and be relatively passive.  The environment is likely to be a subdued, recuperative one.  That does not mean that no open space is required.  I note however, that 100.81m2 of open space is to be provided, which includes private open space, in the form of a verandah/balcony or terrace, to each unit.  I am satisfied that what is proposed is sufficient in the circumstances.

    [51]T2-19-20.

  1. Performance criterion 13 of section 5 of the LMR Code requires development not to significantly reduce daylight to open space and habitable rooms in adjacent development.  It should be noted that access to daylight is not the same thing as exposure to direct sunlight or an absence of shadow.  As Mr Trotter suggested and Mr O’Brien agreed, one can, for example, be sitting under the shade of a beach umbrella but still enjoy the daylight.

  1. Acceptable Solution A13.1 sets out site boundary setbacks which are greater than is proposed in this case.  The question, again, is whether the performance criterion is nevertheless satisfied.  The proposal complies with the minimum rear boundary setback of 6m specified in AS13.3.

  1. It has already been noted that the existing houses are located cheek-by-jowl.  The setback of the existing house to the southern boundary is 0.9m and 1.158m to the northern boundary.  No issue is taken however, with the retention or relocation (slightly forward) of the existing house.

  1. The new building to the rear of the house is to have greater side setbacks of 1.558m to the north and 1.5m to the south respectively.  Those setbacks, while greater than what presently exists for the house, are less than the 2m referred to in the Acceptable Solutions for walls between 4.5m and 7.0m in height.

  1. Mr O’Brien’s evidence, which I accept, is that the adoption of a 1.5m setback, instead of a 2m setback, would, in the circumstances, have a negligible effect in terms of daylight to open space and habitable rooms.  In his view the difference would “be so slight that it would probably not be relevant … I just don’t’ think the – the difference would be significant[52]”.  He also saw the impact as similar to a house extension[53].

    [52]T1-29.

    [53]Exhibit 1, tab 11, para 46.

  1. I am satisfied that any reduction in daylight will not be significant and that the performance criterion is met.

Local Amenity

  1. It was contended, for the appellants, that the proposal would unacceptably affect local amenity.

  1. Although the appellants include a proprietor of units to the north and of properties not adjoining the subject site, Mr Ramsay agreed that, leaving traffic to one side (discussed later), the impact of concern was almost entirely to the area at the rear of 8 Hetherington Street[54], being the adjoining house to the south.  Statements from the proprietors of other properties were however, admitted into evidence.

    [54]T2-17.

  1. Carol Cox, who has an interest in all but two of the units/townhouses in the complex to the immediate north, expressed concern about the privacy and amenity of the units which overlook the subject site.  As she pointed out, the balconies of two units and bedrooms in four face the proposed development.  The design of that complex however, is such that most of the southern side of the complex (proximate to the northern side boundary of the subject site) is set back 6m from the boundary and 7.5m from the proposed new built form.  The design of the proposal and conditions as to screening, will appropriately mitigate privacy impacts.  For the reasons discussed later, I do not regard the loss of an ability by some to continue to look into the backyard of the subject site to be an undue impact on amenity.  I do not consider that there is any undue impact otherwise on those in that complex.

  1. Mrs Critenden lives with her husband in a house at 1 Hetherington Street, diagonally opposite the subject site.  Her statement says that the couple purchased their house because of its character and the character of other houses in the street.  The subject proposal will obviously not affect the character of their house and will, by reason of the refurbishment of the existing house on the subject property and the concealment of the new development to the rear, only enhance the streetscape character in Hetherington Street. 

  1. Mrs Critenden also expressed some concern about parking and traffic problems.  For the reasons discussed later, the proposal is unlikely to cause any significant problems in this regard.

  1. Tamlyn Lambert lives with her husband and children at 10 Hetherington Street.  That property is separated from the subject site by 8 Hetherington Street.  Although the residents of 10 Hetherington Street will look out across 8 Hetherington Street to the proposed development, the extent of impact is obviously less than for 8 Hetherington Street, which is discussed below.

  1. Suzanne O’Brien lives with her husband at 15 Hetherington Street, which is on the opposite side of Hetherington Street and further to the south.  It is difficult to see that the proposal would have any material affect on the amenity of that property.  Her statement raises character issues but, as has already been observed, the proposal is only likely to improve the visual character of the streetscape.  Her statement also raises issues of on-street carparking and whether there is a need for the proposal, given the planned new children’s hospital at the Mater.  Those issues are dealt with in these reasons.

  1. Mr Ramsay saw the Acceptable Solutions in the LMR Code as preserving smaller lots, like the subject and those to south along Hetherington Street, from multi-unit development, thereby preserving contiguous backyards for the protection of the character of the area and the amenity of neighbours, who can look into and across an adjoining open backyard, free from the presence of built form.  In his testimony he confirmed that his concern in this respect was not so much for direct amenity impacts, but an impact on the perception of amenity from not being able to look out across a greater extent of backyard[55].  As Mr Ramsay put it “we’re trying to preserve backyards here”[56].  The statement of Linda Ernst, who lives with her aged mother at 8 Hetherington Street, refers to the deck at the rear of the house which is used for quiet enjoyment and from which one can look into the backyard of the subject site (as well as the backyard of 8 Hetherington Street itself).

    [55]T2-33.

    [56]T2-23.

  1. Implementation of Mr Ramsay’s backyard preservation policy would effectively exclude construction of multi-unit dwellings on smaller lots in the Character Residential Area, while allowing the backyards of larger blocks in the same Area designation to be consumed by such development[57].  His thesis is based on the Acceptable Solutions[58], but there is nothing in City Plan which prevents the consideration of multi-unit dwellings on smaller sites in the Character Residential Area, subject to a performance based assessment.

    [57]T2-37.

    [58]T2-37.

  1. City Plan also does not expressly guarantee the preservation of views or outlook across an open neighbouring backyard of small lots in the Character Residential Area.  Indeed it was pointed out by the experts called by the respondent and co-respondent, that a neighbour should at least have within contemplation that the existing house could be extended, in accordance with the Residential Design-Small Lot Code.  While such development would, as was pointed out for the appellants, preserve somewhat more of the backyard[59], it does illustrate that the existing extent of backyard on the subject site is not sacrosanct. 

    [59]Having regard to building envelope provisions.

  1. Further:

(i)         there is nothing to stop the proprietor of the subject site from planting vegetation which could impede views into and across the backyard; and

(ii)        it would be unreasonable to read City Plan as excluding the possibility of multi-unit development in the backyard, subject to a performance-based assessment.

  1. I do not regard the loss of the ability of neighbours to look into and across the open backyard of the subject site as something which, in this case, results in an unacceptable impact on amenity or which compromises local amenity.

  1. The development will also produce some shadowing, but the evidence of Messrs Ovenden, O’Brien and Mulcahy, satisfies me that the extent of shadowing is unlikely to produce any impacts which are significantly worse than could otherwise reasonably be expected or which are otherwise undue.

  1. I am satisfied that the proposal would not be unduly overbearing.  It will also not have any undue impact on privacy, given the screening required by the conditions, supplemented by the recommendation of Mr Mulcahy[60] that screening be provided to the ground level windows of the lounge and bathroom of dwelling two, to ensure privacy to the rear deck at 8 Hetherington Street.

    [60]Exhibit 1, tab 9, pg 3.

  1. It was pointed out that the development will result in more people living on the site, with a theoretically greater potential for noise and other impacts from human activity.  As has already been observed however, the nature of the proposed facility is such that the environment is likely to be subdued.  That does not mean that there will never be an occasion upon which some resident does something which causes some annoyance to a neighbour.  That can be the case with any neighbour.  The nature of the facility and the evidence of Mr Thompson[61] however, satisfies me that the residents of the proposal are unlikely to cause any undue impact on local amenity.  I am satisfied that there will be no significant impacts otherwise as a result of more than one household group being accommodated on the site[62].

    [61]Exhibit 1, tab 12, para 13; tab 14, paras 2-7 and 10-11, responding to matters raised in the statement of Mrs Lambert.

    [62]Mr Ramsay also referred to potential impacts such as light, odour etc.

  1. Mr Ramsay and the statements of the appellants expressed some concern about parking and traffic – in terms of traffic movements (with associated noise etc) and manoeuvres[63].  This was not particularised in the Notice of Appeal, but could be said to fall within the broad allegation that the proposal would detract from, or compromise, local amenity.  The proposal would introduce a low number of additional traffic movements into what is obviously a relatively low volume traffic environment.  The additional number of vehicle movements is unlikely to have any undue amenity impact.  The likely low generation rate and the provision of four on-site spaces also means that the proposal is unlikely to cause or significantly exacerbate any on-street carparking issues[64].  The fact that vehicles would need to reverse out of the driveway is not as safe if they could enter and exit in a forward direction.  Such manoeuvres are however, commonplace in residential areas and the low number of vehicles involved and the nature of the street into which they would be reversing satisfies me that this is not unacceptable in the circumstances.

    [63]See exhibit 1, tabs 5, 6, 7, 8 and Ramsay T2-13, 18-19.

    [64]Note also, the provision, by the co-respondent, of a bus service.

  1. I do not consider that the suggested impacts on amenity are undue, considered individually or collectively.  I am satisfied that the proposal would not compromise local amenity.

Conflict and Sufficiency of Grounds

  1. For the reasons given, I prefer the evidence of Messrs O’Brien, Ovenden and Mulcahy to that of Mr Ramsay and I find that the proposal does not conflict with City Plan including, in particular, with the LMR Code as the appellant’s contend, notwithstanding its departure from Acceptable Solutions.  I am therefore satisfied that the proposal represents impact assessable – generally appropriate development. 

  1. Had I found non-compliance with the performance criteria of the LMR Code, as suggested by the appellants, then I would have found that the conditions of approval adequately mitigate potential impacts.  Had I found conflict with the LMR Code and the criteria for generally inappropriate impact assessable development (for reasons other than unacceptable impacts upon amenity), then I would have found that there are, in any event, sufficient grounds to approve the development application notwithstanding the conflict.

  1. In the context of my finding that local amenity is not compromised, the proposal has substantial merit.  It proposes a well designed multi-unit development, in an area suitable for such development to provide needed development for childhood cancer sufferers and their carers/family while preserving and enhancing the streetscape.

Conclusion

  1. I am satisfied that the co-respondent has discharged its onus.  The appeal is dismissed.  I will give the parties an opportunity to be heard on conditions of the approval.




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