Deason v Brisbane City Council

[2000] QPEC 83

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Deason & Ors v. Brisbane City Council & Anor [2000] QPE 083 Norman Creek Catchment Co-Ordinating Committee Inc v. Brisbane City Council & Anor
PARTIES:	CHRISTOPHER MARK DEASON & ORS Appellant And BRISBANE CITY COUNCIL Respondent And RAY SWEENEY ARCHITECT Co-Respondent
AND
NORMAN CREEK CATCHMENT CO-ORDINATING COMMITTEE INC. Appellant And BRISBANE CITY COUNCIL Respondent And RAY SWEENEY ARCHITECT Co-Respondent
FILE NO/S:	Appeal No 3961 of 1999 Appeal No 3962 of 1999
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	24 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	30, 31 October; 1 November 2000
JUDGE:	Senior Judge Skoien
ORDER:	Appeals dismissed
CATCHWORDS:	Integrated Planning Act 1997; planning intent; environmental issues; stormwater
COUNSEL:	Mr S Keliher for the appellants Mr M Rackemann for the respondent Mr S Ure for the Co-Respondent
SOLICITORS:	Brisbane City Legal Practice for the Respondent Hopgood Ganim Lawyers for the Co-Respondent

1. These two appeals are by objectors to a proposed development of apartment

   buildings and detached houses on Logan Road, Holland Park, the Council having

   approved Sweeney's application.

2. Although the new City Plan came into force on the first day of the hearing of the

   appeals before me, s.4.1.52(2) of the Integrated Planning Act 1997 requires that

   they be heard and determined based on the superceded 1987 Town Plan, giving

   appropriate weight to the provisions of the City Plan. Under the 1987 Town Plan

   the application would have required a rezoning of that part of the land which is

   zoned Future Urban (an apartment building being a prohibited development in that

   zone) and a consent application in respect of the balance of it which is zoned

   Residential B.

The Site

1. The site occupies an area of 10,283m² with a 63.89 metre frontage to Logan Road.

   It also has a frontage of approximately 20 metres to the stub end of Palmer Street.

   Much of its southern and eastern boundary is formed by Mott Creek, a tributary of

   Ekibin Creek and ultimately Norman Creek. It is currently vacant land but was

   formerly occupied by the Amaroo Gardens Caravan Park. Some of the facilities

   associated with the caravan park use remain on the site. These include an ablutions

   block and a number of concrete driveways and concrete caravan annex floors. Part

   of the site which fronts Logan Road is within the Residential B zone with R4 and

   RX designations and the balance is within the Future Urban zone. The surrounding

   land is generally in the Residential B zone, R3 or R4. Thus medium density

   development of the general area was contemplated by the zoning.

2. The site contains a number of variations in levels, accommodated by a number of

   small steps and terraces but generally the site slopes gently in a southerly direction

   along its long axis away from Logan Road, and also gently in a south-easterly

   direction towards Mott Creek. The site is generally lower than the adjoining land to

   the north and especially the land to the east and south across Mott Creek.

3. There is a large number of mature trees on the site including gum trees, poincianas,

   jacarandas, palms and a stand of camphor laurels at the northern end of the

   boundary formed by Mott Creek. The site is not affected by a Vegetation

   Protection Order. A flood regulation line affects the southern end of the Mott

   Creek boundary.

4. Existing development in the vicinity of the site generally comprises detached

   dwellings to the north and west, and a mixture of detached dwellings and

   townhouses across Mott Creek to the east and south. The northern (Logan Road)

   end of the site adjoins a service station to the east and a shop to the west. The

   southern boundary of the site adjoins an area of open space around the waterway.

   This area is relatively inaccessible, overgrown and steep in parts.

5. Logan Road is a busy arterial road on which, about two hundred and fifty metres

   inbound of the site, is a substantial shopping centre which has a Coles Supermarket

   as its anchor tenant and thirty-seven specialty shops.

The Proposal

1. The proposed development comprises a total of ten buildings including two

   detached houses (referred to as townhouses on the drawings) providing sixty-five

   dwelling units. Six of the buildings are proposed to have basement (or lower level)

   car parks. Two of them are to be two storeys high, and four are to be three storeys

   high. The three storey buildings are located at the northern or Logan Road end of

   the site.

2. A total of 130 parking spaces will be provided on site (108 in basement or lower

   level car parks) with access to the site to be obtained only from Palmer Street. The

   development will be landscaped and recreational facilities to be provided include a

   swimming pool.

The Issues

[10] The issues can be summarised under the headings planning documents,

environmental considerations and stormwater disposal.

Planning Documents

1. Insofar as part of the land was included in the Residential B zone, the proposed

   form of development is obviously consistent with that zoning and indeed with the

   two designations namely R4 (within which apartment buildings were a consent use)

   and RX (which indicates that access to the land should be gained from a road other

   than the heavily trafficked Logan Road - see s.7.6.10 of the Town Plan). As noted

   above that access will be via Palmer Street.

2. Insofar as the land was included in the Future Urban zone, the statement of intent

   for that zone in s.6.1 of the Town Plan included the following passage:

   "Areas close to centres and accessible to higher frequency public
   transport are the preferred locations for medium density housing …
   areas more remote from centres are preferred for lower densities
   typified by detached housing"

3. The site is in close proximity to the substantial shopping centre referred to in

   para[7] above and to public transport along Logan Road. I regard it therefore as

   falling within the statement of intent, preferring the town planning evidence of Mr

   Brown and Mr Drew to that of Mr Heywood.

4. In his report which was tendered, Mr Brown demonstrated how the density of the

   proposed development in respect of each of the differently zoned land parcels, in

   consultation with the Council, was calculated conservatively to effect R4 for the

   Residential B land, but only R3 for the Future Urban land.

5. The areas zoned Residential B, are now, under the City Plan, included in the low-

   medium density residential area which are intended to "contain a mix of houses up

   to two storeys and two and three storey multi-unit dwellings" (see s.5.4.1). Within

   such areas, "higher densities and three storey buildings occur near multi-purpose

   centres, near public transport and along arterial roads" (see s.5.4.2).

6. In those circumstances, the form of development proposed is acceptable. I

   conclude this despite the fact that s.6.1.2(3) of the Integrated Planning Act, at first

   blush, seems to caution against it in respect of the Future Urban zone. But

   notionally, a rezoning is being considered here and the matters to which I have

   referred in paras [6] and [11-15] overwhelmingly argue for the rezoning to be to a zone (such as Residential B) which permits the proposed development. There is no

   basis for any suggestion that the land is being over-developed in the town planning

   sense. Indeed in my opinion, the site, by reason of its size, condition, location and

   zoning, is one which is ripe for redevelopment in a form such as this proposal.

Environmental Considerations

1. Regrettably, Mott Creek where it forms a boundary of the site is in a degraded state.

   The trees and shrubs along it are mostly undesirable species. All parties seem to

   accept that the camphor laurel trees, for example, ought to be removed. Across the

   creek the bank is, at the southern end, high, poorly vegetated and probably unstable

   in flood times. The bank on the site, at its southern end, has been filled at some

   time in the past and is therefore poorly vegetated and is unstable. Downstream the

   creek bed is badly overgrown with rampant exotic species. It is very likely that

   pollutants are in the water itself from the upstream roads (especially Logan Road),

   car yards and service stations. When the site was a caravan park it is obvious that

   it must have contributed substantial run-off pollution.

2. The Council, in approving the application, set conditions designed to protect Mott

   Creek and these are set out in para.88 of the report of Mr McNeilage, Sweeney's

   consultant environmental expert. He said, and I accept, that he expects, from his

   experience, that these conditions will be effective. They relate to the landscaping of

   the site and the re-making of the creek bed to reduce the steepness of the bank on

   the site side and to widen the bed. The less steep banks are to be reinforced with

   rock and planted to protect against erosion.

3. Planning Policy 6.01 relates to the suitability of land in the Future Urban zone and,

   relevantly to this issue, picks up Planning Policy 19.22 on Brisbane Waterways.

   The extract from that which was referred to by the appellants is:-

   "To ensure that physical development is set back from waterways to allow for the preservation and rehabilitation of vegetated riparian zones for physical and ecological processes, the maintenance of species and the establishment of wildlife corridors. For the development of currently undeveloped properties, as a general rule the setback will be thirty (30) metres from the top of the high bank, although up to sixty (60) metres may be required where sites are assessed to be of special ecological significance. The setback can vary on a site-specific basis depending on individual circumstances such as presence of existing vegetation, flooding conditions, size and importance of the waterway and intensity of development proposed."

4. In my view, the site is not "currently undeveloped property" within the meaning of

   that extract. That argument was put by Mr Kelleher who appeared for the

   appellants and their witnesses. The phrase must mean a property in its natural state,

   or something like its natural state. This site still contains on-the-ground evidence of

   its previous development as a caravan park. On the site the banks of the creek have

   been filled which in itself is a degradation of the creek. So I am unable to find, in

   this policy, a requirement for even the thirty metre setback from the top of the high

   bank. After all, the high bank which is there is not natural but constructed. Nor can

   I sensibly read it as referring to the top of the high bank after reconstruction by the

   developer for that would permit a developer to adjust the setback simply by

   adjusting the reconstruction.

5. The evidence of Mr McNeilage and Ms Hooper, the Council's environmentalist,

   broadly agreed. In their view the degraded nature of the creek and its vegetation,

   the undesirable filling on both sides which has left the banks too steep for

   vegetation to be properly established (and susceptible to flood instability) render remedial work very desirable. As Mr McNeilage said, in such a case "More is

   better" but as usual a balancing process has to occur. Here, the engineering which

   will widen the creek (but leave the low flow bed undisturbed) provides a sensible

   hydraulic approach. While there will be removal of vegetation in the short term, in

   the medium to long term the ecology of the creek will be substantially improved.

   The Council does look at each site specifically and in this case, while the set back

   of the nearest building is not thirty metres (and is not required by the policy to be

   that) it is at over six metres from the new high bank to the nearest building point

   and about twenty-one metres from the existing low flow bed. More importantly,

   the reinforcing and the re-vegetation will not only provide a better hydraulogical

   situation but will also ultimately create a better ecological environment.

6. The space available, provided that sensible upkeep of the grounds is maintained,

   should prevent the run-off of pollutants into the creek. Such run-off which enters

   the stormwater drainage system of the land itself will undoubtedly be improved not

   only above the present (and former) situation, but over what happens on most sites.

   That will be the effect of the Hume-ceptor pollutant trap which will be installed in

   the stormwater system. I consider that proper conditions should be drafted to

   require regular maintenance of the Hume-ceptor and proper disposal of the

   pollutants which it collects. The parties should also settle conditions designed to

   prevent the run-off of pollutants from the landscaping.

7. It is apparent that I have preferred the evidence of Mr McNeilage and Ms Hooper to

   that of Mr Hoobin, the environmental consultant called by the appellants. His

   evidence was, in my opinion, not soundly based. And while it is obvious that I

   have not been persuaded by the evidence of the lay witnesses who gave evidence on behalf of the appellants I would not want it to be thought that I did not consider it

   carefully, or that I doubted their bona fides. On the contrary they are clearly people

   who are keenly interested in the welfare of this entire creek catchment and (unlike

   many) do something practical to protect and enhance it.

Stormwater Disposal

1. The most serious point in this issue was the ability of the presently designed

   stormwater system to pick up and contain the additional 13.2 cubic metres/second

   of flood water in a Q 50 flood event which would not be accommodated in the

   existing drainage pipe. It was the subject of conflicting technical evidence from Mr

   Maddison for Sweeney and Mr Rogers for the appellants. Mr Baron, for the

   Council, was substantially in agreement with Mr Maddison. Much of the debate

   revolved around the design of the inlet and the loss of head associated with it. But

   ultimately I do not have to concern myself with the question, (and I tend to think

   that Mr Maddison's design suffices) because Sweeney is prepared to accept a

   condition for the development that the stormwater inlet and pipes be such as will

   accommodate a further flow of 13.2 cubic metres/second (or, put differently, in

   combination with the existing pipe, a total flow of 23.2 cumecs.) There is no reason

   to doubt that such a condition can be met by proper design or that the Council

   engineers can be relied upon to assess the adequacy of the design.

2. The underground flow of 23.2 cumecs will leave, in a Q 50 flood event, three

   cumecs to flow overland down an internal road to the creek. I accept that such a

   flow will (after minor and inconsequential filling) result in a depth to velocity ratio

   of 0.6 m²/sec which Mr Maddison and Mr Baron regarded as acceptable. Mr Rogers for the appellants, argued for 0.4 m²/sec but I prefer the evidence of Mr

   Maddison and Mr Baron. The flow will not be along an access route to or from the

   development so it will not be necessary for people to come into contact with it. The

   depth of the flow will be only about 300 mm.

3. The appellants raised safety issues in relation to the possibility of children, in a

   Q100 year flood event, being endangered by the proximity of the building

   development to the flooded creek. To refuse the development for that reason would

   be akin to refusing it because of the proximity of Logan Road with its heavy traffic,

   equally dangerous to children. One must assume that the guardian of a child will be

   reasonably careful of the child's safety.

4. Finally, while there was some evidence that the works on the site (especially the

   works at the creek) would produce a very small reduction in flood storage on the

   site there was no satisfactory evidence of any resulting detriment from that to any

   downstream property. Indeed the work will reduce flood levels and some velocities

   to the advantage, particularly, of the buildings across Mott Creek to the south east

   of the site.

Conclusion

1. The co-respondent has satisfied the onus cast on it by s.4.1.50(2) of the Integrated

   Planning Act. The two appeals will be dismissed. However before ordering that I

   want to have the developer and the Council try to agree the conditions I

   foreshadowed in para. [22] above, so I adjourn the further hearing of the appeals to

   a date to be fixed.