Ecofence Pty Ltd v Brisbane City Council - [2013] QPEC 60

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ecofence Pty Ltd v Brisbane City Council and Ors [2013] QPEC 60

PARTIES:

Ecofence Pty Ltd ACN 097636121 (Appellant)      Appellant

v

Brisbane City Council (Respondent)

and

Janis Christine Boyd (Second Co-Respondent by Election)

and

Robert John Baldwin (Third Co-Respondent by Election)  Third Co-Respondenby Election

and

Kelly Sharon Keys (Fourth Co-Respondent by Election)

and

Elizabeth and James Wardrop (Fifth Co-Respondents by

Election)

FILE NO:

BD 4519 of 2011

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15, 16 and 25 October 2012 supplementary submissions to 25 February 2013

JUDGE:

Andrews SC DCJ

ORDER:

Appeal adjourned to a date to be fixed to allow the Respondent to prepare conditions of approval in accordance with these reasons

CATCHWORDS:

Developer’s appeal against deemed refusal of approval for a multi-unit dwelling in a Demolition Control Precinct and in a Low-Medium Density Residential Area – where proposal more than two storey – where street predominantly pre-1946 houses – where five three bedroom units exceeded Acceptable Solutions for GFA and storeys – where skillion roofs noncompliant with Acceptable Solution – where front setback noncompliant with Acceptable Solution – where other multi-unit dwellings in the locality but only one in the street – whether compliant with performance criterion that building height and bulk must complement the predominant scale of pre–1946 houses nearby in the street – whether compliant with performance criterion that building setting must complement the traditional setting of pre–1946 houses nearby in the street – whether compliant with performance criteria that building form must complement the traditional elements of pre–1946 houses nearby in the street – whether compliant with performance criterion that Roof form must reflect traditional roofs in that part of the Demolition Control Precinct – whether compliant with performance criterion that Development size and bulk consistent with the low to medium density of the locality – whether compliant with other performance criteria – relevance of acceptable solutions

Sustainable Planning Act s 326

Agtec Holdings v Kilcoy City Council [1999] QPELR

Chesol Pty Ltd v Logan City Council [2007] QPELR 285

Jensen Bowers Group Consultants Pty Ltd v Gold Coast City Council [2011] QPEC 049

Lewis v Townsville City Council & Ors [2012] QCA 99

Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370

SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24

Simmons v Esk Shire Council [2006] QPEC 101

Szylkarski & Ors v Brisbane City Council & Anor [2012] QPEC 80

Weightman v Gold Coast City Council[2003] 2 Qd R 441

COUNSEL:

J G Lyons (for the Respondent)

SOLICITORS:

Milne Legal for the Appellant
Brisbane City Legal Practice for the Respondent

Background
Was a change to the development application a minor change?

Issues
Three sets of Performance Criteria and Acceptable Solutions are in issue
The Statutory Framework
What must the developer do to satisfy the onus of proof?
Relevance of non-compliance with Acceptable Solutions
The proposed development
What is the front boundary setback of the proposed development?
Community submissions
The land and the surrounding area
Local Plan
Relevant provisions of City Plan
City Plan Chapter 2, the Strategic Plan
City Plan Chapter 3
City Plan Chapter 5
Residential Design—Character Code Performance Criteria and Acceptable Solutions
4.3 Multi–unit dwellings in Low–medium Density Residential Areas Performance Criteria and Acceptable Solutions
5 Part B—General Performance Criteria and Acceptable Solutions for multi–unit dwellings
What code assessable development could be built as an alternative?
Concerns about size, scale, building design and bulk
Front Boundary Setbacks
Building Design Elements
Roof form
Privacy and amenity
Traffic and Parking
Light, fence height, driveways and earthworks
The issue of an unacceptable precedent
Other available sites

Conclusion

Background

This is an appeal by an applicant, Ecofence Pty Ltd, (the developer) against the Council’s “deemed refusal” of a development application (the application) for Multi Unit Dwelling development comprising 5 townhouses over two existing lots in Fanny Street, Annerley (the proposed development).

The subject site is vacant and located at 36-38 Fanny St, Annerley with a width of 20.141m.[1] The two lots are each of 453m². There are many pre-1946 houses built in the street.
[1]Ex. 5 Report of Mr Mulcahy p. 2 s. 3.

Since the appeal was instituted, following some revisions to the proposed plans, the Council has determined to support approval of the proposed development subject to relevant and reasonable conditions. The revisions to the proposed plans mean that, apart from the appeal, the court must first determine whether the proposed development in its current form[2] constitutes a minor change pursuant to s. 350 of the SPA.
[2]As depicted in Ex. 8.

The co-respondents (the submitters) are local residents who remain opposed to approval of the proposed development. The second, third and fourth co-respondents by election appeared in person and without legal representation.

Was a change to the development application a minor change?

There were changes made to the original development application. As a preliminary matter, the Court must be satisfied that the proposed development in its current form, as depicted in Ex. 8, constitutes a “minor change” within the meaning of those words in s 350 of the SPA.

The developer relies upon s 350(1)(d) of the SPA to submit that the changes to the application are minor. The affidavit of Brendan Lawrence Rehbein filed 8 October 2012 describes the changes at paragraphs 12 and 13. The changes primarily result in the reduction of 18 square metres (6%) for landscaping, inclusion of a gable for the vehicle accommodation for townhouse 1 and a decrease in townhouse 1’s open space from 70.1 to 52.1 square metres, a boundary screen acoustic fence where the driveway runs along the western side of the subject site and 1.5 m wide vertical screening to the north-western ends of the western balconies of townhouses 3, 4 and 5. The developer further submitted that it was upon the basis of the latter two changes that the first co-respondents by election chose to withdraw from this appeal, as the screening would enhance privacy and provide a noise barrier for the advantage of their property.

The developer submitted these changes clearly fall within the definition of “minor change” in s350(1)(d) as they result an a development which is not a substantially different development, they do not require referral to any additional referral agencies, and they do not change the type of development approval sought and that the SPA 350(1)(d)(iv) does not apply as the application did require impact assessment. Council also submitted it is a minor change.

Upon the assurance of the representative for the developer that floor levels had not changed, the third co-respondent by election did not argue that the change was not minor. No submitter submits otherwise.

I am satisfied that the proposed changes constitute a minor change.

Issues

The primary issues seem to me to be these. City Plan 2000 (City Plan) provides Performance Criteria and Acceptable Solutions for such a development. The developer must “complement” the predominant scale, the building setting and the traditional elements of pre-1946 houses nearby in the street and must “reflect” traditional roofs and pre-1946 architectural themes externally. It failed to comply with several objectively measureable Acceptable Solutions. The developer must also make development size and bulk consistent with the low to medium density of the locality but it would exceed Acceptable Solutions about storeys and GFA. The developer argues that the development nevertheless complies with Performance Criteria. If there is noncompliance with any of these Performance Criteria, these matters are not capable of mitigation by conditions other than by redesign afresh. Regrettably, measurement of compliance with these Performance Criteria is to be done without easily the comparable objective benchmarks in Acceptable Solutions and is based on criteria more qualitative than quantitative. The expert witnesses disagree on whether there has been compliance with each of these Performance Criteria. The court must assess consistency of size and bulk and must compare scales, settings, traditional elements and roof styles. There are other Performance Criteria in issue, but generally the impacts of noncompliance with those can be mitigated by conditions which do not require redesign afresh.

By order of Jones DCJ[3] the issues in dispute are set out in the Submitters’ Lists of Issues that have now been consolidated into one document.[4] Some have since resolved by agreement.
[3]See paragraphs 1 and 2 of the Order of Jones DCJ made on 23 March 2012: CD 13 Ex. 4, p. 4.
[4]Ex. 2.

As a result of the town planning joint expert report (JER) the issues in dispute have been distilled down to issues regarding:[5]
[5]See s. 6 of the Planning JER: Ex. 3 p. 16.

1. size, scale, building design and bulk;

2. privacy and amenity;

3. front boundary setbacks;

4. traffic and parking; and

5. other issues not yet resolved, in particular:

(a) the issue of precedent; and

(b) other sites that could be used to build such a development.

When considering the issues in dispute (particularly, privacy and fence height) it should be remembered that the first co-respondents by election (Sinnot and Yu) have withdrawn from the appeal. The first co-respondents by election reside on the lower, western side of the proposed development and potential interference with privacy was acute for them, before the change to the development approval.

It is the developer’s contention, supported by Council, that there is no conflict between the proposed development and City Plan; indeed it is the developer’s contention that it is a development of a type specifically envisaged and encouraged in the Low-medium Density Residential Area.

In the alternative, it is the developer’s submission that, should any conflict be found, such conflict would be extremely minor, and there are more than sufficient grounds to justify approval despite such conflict.

Three sets of Performance Criteria and Acceptable Solutions are in issue

The parties’ submissions generally analysed whether the facts raised by the issues in dispute would prevent the development from complying with relevant Acceptable Solutions or otherwise from satisfying relevant Performance Criteria. There are three sets of Performance Criteria and accompanying Acceptable Solutions which are relevant and in issue and they are found in 3 places in City Plan Chapter 5. Some evidence and some submissions appear to have conflated sets so that references such as to P1 or to A1 were ambiguous.

The first set is in the “Residential Design—Character Code Performance Criteria and Acceptable Solutions” (Character Code). The developer relies on its expert’s opinions and submits with almost no further elaboration that the development would comply with each of P2 to P7 of the Character Code. It does not contend that it would comply with P1.[6] Compliance with P1 is unnecessary as compliance with all of P2 to P7 inclusive is an alternative to compliance with P1. The developer further submits with respect to the Character Code that there is specific compliance with Acceptable Solution A2.2 and a deemed compliance with P2.[7]The submitters, between them, made written submissions about alleged noncompliance with P2, P3 and P5 and A3.1 and A5.1. The relevant parts in issue of Performance Criteria and Acceptable Solutions in the Character Code are set out below.
[6]SUBMISSIONS ON BEHALF OF THE APPELLANT [46]
[7]SUBMISSIONS ON BEHALF OF THE APPELLANT [47]

The second and third places are each within the “Residential Design-Low Density, Character and Low-medium Density Code” (LMR Code). The LMR Code sets out Performance Criteria and Acceptable Solutions in two places, namely in 4 Part A 4.3 Multi–unit dwellings in Low–medium Density Residential Areas (LMR Code: first set) and on the next page in 5 Part B—General Performance Criteria and Acceptable Solutions for multi–unit dwellings (LMR Code: second set).

The developer submits that it would comply with LMR Code: first set at Performance Criterion P1[8] and from LMR Code: second set with Acceptable Solution A16[9] and by inference with P16. The developer made no particular submission about compliance with or the relevance of the other 30 Performance Criteria.
[8]SUBMISSIONS ON BEHALF OF THE APPELLANT [34]
[9]SUBMISSIONS ON BEHALF OF THE APPELLANT [48]

The submitters, between them, made written submissions about alleged noncompliance with LMR Code: first set P1 and A1.1 and A1.2.

The submitters, between them, made written submissions about alleged noncompliance with the LMR Code: second set. They submitted noncompliance with Performance Criteria P1 (and Acceptable Solution A1), P4, P12 (and Acceptable Solution A12) and P13. The developer made no specific submissions as to these alleged non-compliances.

The relevant parts of the LMR Code: first set and the relevant parts of the LMR Code: second set are each set out below.

If the development would not satisfy the disputed Performance Criteria and would result in a conflict with City Plan the next issue would be whether planning grounds justify approval despite such conflict.

The developer would rely upon the following grounds to justify approval if the court should find a conflict with City Plan:

1. The subject site is well located, being close to high levels of public transport services;

2. The proposal is a sensible response to the site, and one which takes advantage of the site’s proximity to high levels of public transport services;

3. The proposed development is precisely what City Plan encourages within a Low-Medium Density Residential area and is therefore within the reasonable expectations of the community;

4. The proposed development assists in reaching SEQRP targets;

5. Each unit being three bedrooms allows for an improved choice of product to be presented to the market rather than if some had been smaller. As such these units are more likely to attract families, which is completely within keeping with the residential character of the street.

The Statutory Framework

The Council received the application on 5 April 2011.[10] The Sustainable Planning Act 2009 (the SPA) was in force.
[10]Ex. 4 p. 1 paragraph 3 of the Notice of Appeal.

The appeal:

1. was commenced pursuant to s. 461 of the SPA;

2. is by way of hearing anew;[11] and

3. must be decided based on the laws and policies applying when the application was made, although the Court may give weight to any new laws and policies that the Court considers appropriate.[12]

[11]Section 495 of the SPA.

[12]Section 495(2)(a) of the SPA.

The developer bears the onus in establishing that the appeal should be allowed.[13] The development is impact assessable. The Court must:

1. assess the application in accordance with s. 314 of the SPA; and

2. decide the application in accordance with ss. 324 and 326 of the SPA.

[13]Section 493(1) of the SPA.

Council reminds the court of the words of Quirk DCJ in Agtec Holdings v Kilcoy City Council [1999] QPELR at 212-213 that:
…as must be said repeatedly in this jurisdiction, whether the desires and expectations of local residents should prevail over the desire of a land owner to use his land as he chooses can be decided only against the background of the statutory planning controls in place.
Reasonable expectations of a local resident must depend on existing town planning controls. So too must the desire of a developer. In this case the desires and expectations of the parties must be decided against the background of the SPA s 326(1)(b).

The SPA provides rules which bind this court in determining whether to approve this application. The relevant rules in this proceeding are:
326 Other decision rules
(1)The assessment manager’s decision must not conflict with a relevant instrument unless -
…
(b)There are sufficient grounds to justify the decision, despite the conflict;
…
For this appeal, the only statutory planning control that is a “relevant instrument” within the meaning of the SPA s 326(1) is City Plan.

The term “grounds” in the SPA s 326(1)(b) is defined in Schedule 3 of the SPA and means matters of public interest but does not include the personal circumstance of an applicant, owner or interested party.

What must the developer do to satisfy the onus of proof?

The threshold issue in the SPA s 326(1) is whether there is a conflict with the planning scheme. The significance of a conflict with the planning scheme is not part of the threshold issue.

In this appeal, provisions of the SPA s 326(1) mean the developer bears the onus of proof that the decision to approve would not conflict with City Plan. Conflict with a provision or with several provisions of a planning scheme may not amount to conflict with a planning scheme as a whole. The SPA s 326(1) is concerned with a conflict with a relevant instrument and not with conflict with a provision of a relevant instrument. If a provision is significant in the scheme then a decision in conflict with that provision is more likely to be also in conflict with the scheme. One may conflict with a provision of City Plan in isolation without conflicting with City Plan as a whole.

The developer’s onus of proof is affected by City Plan for an impact assessable application such as this, where compliance with Performance Criteria is an issue. City Plan provides:
“For … impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code's Purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code's Performance Criteria. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.”
Accordingly, City Plan contemplates that a developer may depart from Acceptable Solutions while meeting Performance Criteria. Further, City Plan contemplates approvals for developments which fail to comply with Performance Criteria if the failure is in insignificant details which can be conditioned to mitigate impacts.

The submitters emphasised the consequences for the developer’s onus of that provision of City Plan. The submitters argued that the developer did not do sufficient to discharge this onus. The argument was, in effect, that where the developer elected not to use an Acceptable Solution and applied to use another way of complying with a relevant performance criterion to meet the Code’s Purpose the developer had an onus to “demonstrate how alternative solutions comply with the Code's Performance Criteria” while still meeting the “Code’s Purpose”. The submitters argued that the expert witnesses supporting approval did not supply a methodology for their opinions or explain how the developer’s solution complied with a Performance Criterion, or, if not complying, how the development mitigated the effects of noncompliance. I infer that the criticism is that the expert evidence tended to skip from a description of the proposal’s alternative solution to an opinion that it complies with the Performance Criterion. Such a skip would omit: the step of explaining how it complies with the Performance Criterion or the Code’s Purpose; the alternative step of saying that it if it does not comply with a Performance Criterion but that the details are insignificant and why they are insignificant; the alternative step that the proposal adequately mitigates the effect of noncompliance and how it does so.

If the developer does not satisfy its onus that there is no conflict with City Plan, it may still succeed, but only if the developer satisfies the onus of proof that there are sufficient grounds to justify the decision, despite the conflict with City Plan.

If there developer must establish that there are sufficient grounds to justify the decision, there are decisions which inform the approach this court must take.[14] If the court identifies a conflict with City Plan, as a whole, the court should then follow three steps: firstly, examine the nature and extent of the conflict; secondly determine whether there are any matters of public interest[15] (but not including the personal circumstance of the developer or interested parties) which are relevant to the part of the application which is in conflict with City Plan; and thirdly determine whether the matters of public interest in favour of the application are, on balance, sufficient to justify approving the application notwithstanding the conflict.
[14]Weightman v Gold Coast City Council[2003] 2 Qd R 441 at [36] per Atkinson J with whom McMurdo P agreed at [14] and Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 per Holmes JA at [25]
[15]SPA s 326(1)(b)

Once conflict with a provision also amounts to conflict with the planning scheme then the SPA s 326(1)(b) requires the court to determine whether there are sufficient grounds to justify the decision. The significance of a conflict is relevant to the next issue which arises when performing the duty imposed by the SPA s 326(1)(b). If conflict with the scheme exists, the significance of that conflict is relevant to the sufficiency of grounds to justify a decision in conflict with the scheme.

If the conflict is not significant, that consequence is likely to be relevant to issues created by the SPA s 326(1)(b), namely whether there are sufficient grounds to justify the decision despite the conflict with the planning scheme.

Relevance of non-compliance with Acceptable Solutions

As will be seen below, in several respects, the proposed development would not comply with Acceptable Solutions in City Plan. It need not comply. Regarding similar provisions in the Gold Coast Planning Scheme 2003 Rackemann DCJ observed:[16]
The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.
It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a ‘relaxation’ or a ‘dispensation.’ It is another way of achieving compliance with the relevant performance criterion.
[16]SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24 at [47]-[48]
However, inconsistency with an Acceptable Solution may indicate the extent to which a proposal may be incompatible with the desired intent and purpose of the relevant code.[17]
[17]Jensen Bowers Group Consultants Pty Ltd v Gold Coast City Council [2011] QPEC 049 at [25] followed in Szylkarski & Ors v Brisbane City Council & Anor [2012] QPEC 80 at [32]

The proposed development

The Proposed Development comprises 5 townhouses.[18] Two of the townhouses are to face north to Fanny Street and adjoin so that, together, they are designed to be of a scale similar to that of large single house. They are each two storey. A driveway on the western boundary of the site leads back to three townhouses behind and orientated to face west.[19] The three behind are each more than two storey. They each have basement car accommodation partly below ground line and partly above with two storeys above that basement. The proportion of the basement storey below ground differs for each of the three rear townhouses from about 65% to 81% below the ground line as defined by City Plan. The ground line rises as the site progresses from front to back. So, the tops of the three townhouses at the rear are higher than the two at the front. No townhouse exceeds 8.5m above the ground line as defined by City Plan. I accept the evidence of Mr Mulcahy that planned building height is under 8.5 m at the highest points and in some cases, such as side eaves, is well under. I accept also his recommendation to ensure this by a reasonable condition.[20]
[18]As can be seen in Ex. 8.
[19]As can be seen in Ex. 8 on p. 7 (drawing H482-DA-07).
[20]JER p20/35 Ex 3 p32

As the ground line rises from north to south on the subject site, a consequence is that the townhouses behind become significantly higher than the two facing the street, while being within 8.5 m above ground line. Next behind the two in front is townhouse three. The top storey floor of townhouse three is on a level above the level of the second storey ceiling of townhouses 1 and 2. The next townhouse heading uphill to the south is townhouse 4. Its top storey floor level commences higher still and just below the level of the roof apex of the two townhouses fronting Fanny Street.

The Proposed Development has:[21]

1. a gross floor area (GFA) of 59.99% of the site area; and

2. site coverage of less 48.9% of the site area.

[21]Ex. 8 drawing H482-DA-01

There would be two vehicle crossovers to the street. One crossover servicing garages to townhouses 2, 3, 4 and 5 is against the western boundary to the site and the other, servicing the garage for townhouse 1 is towards the eastern boundary.

The frontage to Fanny Street is about 20.14m. There was an issue about whether wheelie bins for five units would create a hazard where two crossovers are provided for. Crossovers at their widest should leave about 8.4 metres between them at kerbside. Excluding crossovers, the space at kerbside for fortnightly, orderly placement of 10 wheelie bins for routine collection of bins for general refuse and for recycling would be sufficient. Mr Veal raised the prospect of a third specialist bin being used also. The specialist bins of which he writes are presumably the bins available upon request for garden waste. Wheelie bins are 550mm wide. If one of 15 hypothetical bins was placed at the kerb between the eastern boundary of the subject site and the eastern boundary of the crossover servicing townhouse 1 there would be sufficient room at kerbside between the two crossovers drawn to scale in exhibit 8 for 14 bins. Whether 14 would be too crowded for convenient collection I am unsure. These are townhouses with limited gardens. Specialist bins are a discretionary expense. I am satisfied that it would be unlikely that the occupants of all 5 townhouses would require space for three bins and would be uncooperative about placing such bins as they have in the space available.

What is the front boundary setback of the proposed development?

What is the front boundary setback of the proposed development? Mr Perkins reports of a “proposed 6 metre front boundary setback”. Mr Mulcahy reported there was a “ proposed setback of the building front wall (of 6m and 7m) with a single garage element on the boundary”. Mr Veal reported that “one section… is built to the front alignment and is not set back in accordance with the requirements of the City Plan…” and that the “front setback is not within 20% of the average setback of adjoining buildings”. The transcript reads as if in opening its case the developer’s solicitor submitted: “A street setback is - was added in the original set of plans but not included in the final set of plans”. Reference to the affidavit of Mr Rehbein[22] shows that the front boundary setback was not removed. The affidavit shows that it was only a “street setback diagram” which was not included in the final set of plans.
[22]Doc 27 at A-3

The Council submitted:
The proposed setback of the building front wall (of 6m and 7m) with a single garage element on the boundary.

The developer submitted:

issues with respect to…setback must be interpreted in light of the planning scheme provisions. The two primary codes discussed above contain provisions about each of these aspects of the development, and it is submitted that the proposal complies with these provisions.

The new plans in Mr Rehbein’s affidavit show the front setback of townhouse 2 is 6m at its north-western corner. The front boundary setback steps back a little as the front wall of townhouse 2 progresses east and steps back a little more for townhouse 1. I infer that the step backs take the setback to the front wall to 7m.

There is car accommodation proposed for one vehicle on the northern boundary and towards the eastern boundary of the subject site. Mr Veal must intend to refer to the car accommodation when observing “one section… is built to the front alignment…” It would be for townhouse 1. An elevation shows that at its face, about half of that car accommodation is below ground line as defined by City Plan.

Changing plans meant that expert reports were not always given on correct premises. The front entry to townhouse one is on the eastern side of the car accommodation for townhouse one. The latest plans show an enclosed entry setback 2 m from the front boundary. As an interruption to setbacks, it is lower, narrower, set back further than and abutting the gabled car accommodation. The car accommodation, rather than the enclosed entry, is the more prominent of the interruptions to setbacks at ground level.

Community submissions

Council received 74 submissions. 34 submissions were received from residents of Fanny Street, 8 from residents in streets adjoining or parallel to Fanny Street. I accept that:
Concerned members of the community who go to the trouble of making submissions are entitled to expect that not only the local government but, if there is an appeal, the court will give them appropriate consideration. So far as the court is concerned, it is constrained by the evidence presented. However, the established practice of putting submissions before the court…is presumably to ensure that the court is cognisant of community concerns, which are not necessarily going to be opposed to a development.[23]
[23]Simmons v Esk Shire Council [2006] QPEC 101 at [5] per Robin QC DCJ
In this case community concerns are consistent with the concerns evident in the arguments of the submitters who are and have been parties.

Community grounds of objection to the proposal can be summarised into those concerning: density; traffic and parking; the proposal’s ability to complement the pre-1946 character of the surrounding streetscape; earthworks; bin collection; and the proposal’s non compliance with acceptable solutions and performance criteria. One submitter discussed the proposal’s compliance with the purposes of the ‘Residential Design – Low to Medium Density Code’. A summary of this particular objection will follow a consideration of the other, most popular grounds upon which submitters have objected.

A number of submissions discussed density – in particular, in relation to Performance Criterion P1 of the Residential Design – Low Density, Character and Low-Medium Density Code. This included arguments about building bulk, that the three storey proposal would be overwhelming and likely dominate the streetscape, that are no existing three storey developments in Fanny Street. It was argued that the appearance and bulk of the building is not reduced by design elements as the development extends to the front and eastern side boundaries. One submitter maintained that although the developer argues the size and bulk of the development is consistent with the low to medium density of the locality, it fails to demonstrate how.

About 86% of submissions raised traffic and parking issues demonstrating a belief and concern that parking and congestion is currently a major problem in the street and will increase if the proposal were approved. Emphasis was placed on the following factors as contributing to the existing problem: the narrowness of the street, the expansion of parking restrictions in adjacent areas and the use of the street as a parking facility by train users.

All submitters were concerned about the proposal’s ability to complement the pre-1946 houses in the street. Some noted that about 85% of Fanny Street is made up of pre-1946 dwellings. It was argued that the proposal: contains low pitched and flat roofs; the building’s footprint is greater than surrounding dwellings; the materials do not complement those in the street; the development – unlike others in the street, will be built to the front and eastern boundary, and the development fails to include extensive eaves and sunhoods as found in pre-1946 houses nearby. In terms of roof forms, all residents maintained that the proposal fails to satisfy P5, and A5.1 of the Residential Character Code arguing the skillion and flat rooves proposed do not reflect the traditional roofs found in the Demolition Control Precinct and that the eaves are not of similar proportion to those of houses nearby.

Almost all submitters discussed issues that relate to Acceptable Solutions within Part A 4.3 in the Residential Design – Low Density, Character and Low-Medium Density Code. It was argued that the proposal does not satisfy:

oA1.1 as: it has a GFA of 0.599, Fanny Street is less than 15.5m wide, the subject site is not within 200m of a pedestrian entry to a railway or busway station, no part of the site fronts an arterial route; and the site is not adjoined by houses on all boundaries;
oA1.2 as: the proposal is for a three storey development.

The Acceptable Solutions in 5 Part B of the Residential Design – Low Density, Character and Low-Medium Density Code were raised. It was argued the proposal offends:
oA12 as: the development overlooks adjoining properties;
oA9.1 as: the amount of open space provided is only 22% of the total site area;
oA4.1 as: the proposed front set back is closer than 20% of the average setback; and
oA14.1 to A14.4 as three dwellings are orientated due west.

Arguments of non-compliances were raised in relation to Performance Criteria in 5 Part B of the Residential Design – Low Density, Character and Low-Medium Density Code. They were: Privacy – P12, Site Access – P16, Orientation – P14. Arguments of non-compliance were raised in relation to Building Height – P2, in the Residential Character Code.

Concerns regarding privacy related to three of the units overlooking adjoining properties east and west. It was argued that although screening may be seen as a potential solution to this problem it would add inappropriately to building bulk.

Submitters also argued that the dual crossover proposed, is inconsistent with P16 as it would result in a loss of kerbside parking utilised by existing residents, and an increased number of vehicles reversing into the already congested street. It was argued that P14 has not been complied with as three residences will face due west, and therefore will not be exposed to a pleasant and manageable living environment, and P2 is not complied with as the building is three stories.

Two other general concerns were raised among submitters regarding earthworks and bin collection, however these concerns were not specifically related to provisions within City Plan. There was concern regarding a lack of adequate documentation regarding earthworks and concern about impacts to existing retaining walls. The bin collection issue involved the proposition that the existing kerb frontage would be inadequate to accommodate both general waste and recycling bins associated with the development when required – i.e 10 bins.

o One submitter argued non-compliance with the purposes of the Residential Design – Low to Medium Density Code generally raising the arguments used by others when discussing Performance Criteria and Acceptable Solutions.

Additionally, some objections were based on an argument that the development would set a detrimental precedent for the area.

The land and the surrounding area[24]

[24]See s. 2 of the Report of Mr Perkins Ex. 3; para 3 of the Report of Mr Mulcahy Ex. 5; and s. 4 of the Planning JER: Ex. 3 pp. 14-16.

Under City Plan the subject site is: in a Demolition Control Precinct and is within the Low-Medium Density Residential Area (LMR Area) and is within the Stephens District Local Plan Area.

The local context is shown in Figure 1 in the report of Mr Perkins (Ex. 3 p. 10). In particular the subject site is:

1. on the southern side of Fanny Street approximately halfway between Warwick Street (to the east) and Hastings Street (to the west);

2. approximately 165m to the west of the junction of two major roads being Ipswich Road and Annerley Road; and

3. conveniently located close to public transport. Bus services on Ipswich Road and Annerley Road are between 225 and 300 metres away. Fairfield Railway Station’s entry is in Equity Street at the western end of Fanny Street.

The pedestrian entry to the railway station is at about a 255 m walk from the proposed development. This measurement is relevant but not decisive because an Acceptable Solution refers to being within a 200m radius. It was not established to be within that 200m radius.

The location of the remaining submitters is shown in Ex. 4 on p. 18. They are near neighbours. The neighbours with the greater privacy issue have withdrawn their objection. The site also abuts a retirement village on the corner of Dudley Street and Warwick Street.

The site is also conveniently located close to a multi-purpose suburban centre including a supermarket and is from 300 to 500 metres from a number of community facilities such as a library and state school.[25] In a broader context the site is also located close to major employment hubs including the Brisbane CBD.[26]
[25]Ex. 3 Report of Mr Perkins p. 4 s. 20.
[26]Ex. 3 Report of Mr Perkins p. 4 s. 21.

At its eastern end, Fanny St meets Annerley Road which has a ribbon of commercial development along it nearby. At its western end, it meets Equity St, which runs alongside the railway line. The majority of the nearby streets are zoned Low-medium Density Residential and comprise a mixture of single pre-1946 houses and multi-unit developments.

There are 42 buildings in Fanny Street, 38 of which are pre-1946 character houses. There is one 1950’s style unit block. That unit block is on the same, southern side of Fanny Street as the subject site. However, the unit block is well set back from the street alignment. It is separated from the subject site by eight houses. There are also two post-1946 detached houses in the street. The street is an example of a pre-1946 streetscape little changed by post-1946 development. About 90% of the streetscape consists of pre-1946 houses. Surrounding streets generally retain lesser proportions of pre-1946 houses.

All houses in Fanny Street are of one or two storeys, including any garage below. Some, at the eastern end on the southern side, have detached garages at the front and two storeys built behind and from a higher ground level than the garage’s.

The setbacks of for the pre-1946 houses on the southern side of Fanny Street vary. The subject site is on the southern side of Fanny Street in a block bounded by Hastings Street to the west and Warwick Street to the east. The houses in that block each have a generous setback from Fanny Street. Their setbacks can be contrasted with those of the houses on the southern side of Fanny Street in the block bounded by Hastings Street to the east and Equity Street to the west. The pre-1946 houses in that part of the southern side of Fanny Street are built close to the street alignment because the land slopes away at the rear of their house blocks making generous setbacks impractical. The houses opposite on the northern side of Fanny Street have more generous setbacks.

Fanny Street slopes generally down from the Annerley Road or eastern end to the Equity Street or western end.

The setbacks have relevance for this appeal. A deal of cross-examination was devoted to the issue of establishing that setbacks in the area of the subject site were more generous. They are.

There is in evidence a setback plan.[27] It was tendered by Mr Baldwin. While the developer made no admission as to its accuracy, the evidence suggests it was prepared for the developer and that a copy was created for the developer and submitted by the developer with the original plans. For the only relevant contest about setbacks, it favours the developer for arguably reducing the setbacks for the houses on either side of the subject site to 9.1m and 8.6m. There is a suggestion from a submitter that it is inaccurate to an extent and in places for having been compiled from an aerial photograph. The only critical component for the issues in this case seems to be the measurements of setback for houses on the southern side of Fanny Street in a block bounded by Hastings Street to the west and Warwick Street to the east and the only real issue concerns the setbacks of two of those being for No 40 and No 32, which are the closest neighbours for the subject site. It was put by submitters in cross-examination of Mr Mulcahy that the setbacks for No 40 and No 32 were actually 11.025m and 9.15m. That suggestion was not accepted and no evidence was given of its accuracy by any person who alleges to have measured the two setbacks. No evidence was given of the specific inaccuracy of any part of the setback plan.
[27]Exhibit 10.

There seems no prejudice to any party if I rely on the document as otherwise being generally accurate.

Houses on the southern side of Fanny Street are a mixture of houses with generous setbacks to 9.1 m or so for No40 and houses with setbacks as little as 1.8m. The houses with little setback are almost exclusively confined to their own precinct, on the southern side of Fanny Street, west of the intersection of Fanny and Hastings Streets and closer to the Equity Street western end.[28] In that precinct, the setbacks of the houses are generally about 2.5 metres.
[28]AB doc 9 town planning report pg 76 Street setback diagram.

As one ascends Fanny Street from its western end, the houses on one’s left hand side have more generous setbacks, generally more than 5 metres but varying from 8.4 m to the smallest, 2.1m, across the road from and north east of the subject site.

As one ascends Fanny Street from its western end, the 14 or so houses on one’s right hand side to the intersection of Fanny and Hastings Streets have limited setbacks, varying from about 1.6 to 4.6 metres but 12 of the 14 are set back 2.6 metres or less. When one reaches the precinct on the southern side of Fanny Street, between Hastings Street at the western end and Warwick Street at the eastern end, being the block containing the subject site, the setbacks become generous- 6.7m, 9.1m, the vacant subject site, 8.6m, 6.3m, 8m and 6.9m.[29] The subject site and these four houses to its east generally slope up from north to south, so that their land slopes up from their front boundary to their rear boundary. The setbacks of the first three of these four houses are each interrupted by a one storey garage built at the front boundary for one car. The first interruption is currently on the north eastern boundary of the first of these four houses. These four houses are each two storey and built from a higher ground level than the three ground level garages. As a consequence, the garages (and the block fence of the first house) do not dominate and do not conflict with the generally uniform and generous setbacks of the four houses east of the subject site or the setbacks of the two west of the subject site, or the stepped rooflines.
[29]AB doc 9 town planning report pg 76 Street setback diagram.

As a consequence, the proposed development will share the southern side of Fanny Street between Hastings and Warwick with two neighbouring houses to its left and four to its right, each of which have generous setbacks.

Immediately across the road from the subject site are two pre-1940s houses. The one to the north-west is generously set back 5.6m, the one to the north-east 2.1m.

Mr Mulcahy reported of the setbacks:
There are a range of setbacks in Fanny Street, to both the main buildings and to carports and garages, and as a result, there is no ‘prevailing’ setback. The proposed setback of the building front wall (of 6m and 7m) with a single garage element on the boundary is considered to complement the streetscape of Fanny Street generally.
Mr Perkins reported of the setbacks:
I note that the subject site is located in an established area – unusual however in that there is no consistent or uniform front setback evident along Fanny Street (as a whole)… The development application includes a ‘Street Setback Diagram’ which demonstrated that houses to the east and west of the subject site have front boundary setbacks less than 2.0m (approximate) on the southern side of Fanny Street (not including the properties immediately to the east which feature large retaining walls and garages built to the Fanny Street boundary – effectively a “0 metre setback”)

I accept as accurate the observations that the street as a whole has no “prevailing”, “consistent or uniform” front setback. The Street Setback Diagram does not suggest that houses to the east of the subject site have front boundary setbacks less than 2.0m (approximate) on the southern side of Fanny Street. It suggests front boundary setbacks of no less than 6.3 metres, consistently with the boundaries visible at inspection. Mr Perkins may have intended to refer to the garages which are built at the about the front boundary, though that is inconsistent with his reporting further about the garages to the east and the retaining wall. I conclude that Mr Perkins was mistaken in referring to the 2.0m setbacks east of the site and on the southern side of Fanny Street. As for his opinion that the “properties immediately to the east which feature large retaining walls and garages built to the Fanny Street boundary”, I conclude that the topography sloping north to south at those properties tended not to reduce the feature of the garages and retaining walls and that the setback of the elevated houses behind remained obvious.

Road reserve width is relevant to at least the issue of building size and bulk and is expressly made relevant to Acceptable Solution A1.1 of Part A 4.3 in the Residential Design – Low Density, Character and Low-Medium Density Code.

The street is a narrow 13.5m wide. The two houses opposite the subject site have no provision for car parking. The street is often congested with parked cars. Commuters parking cars to walk to public transport facilities in Ipswich Road at the eastern end and to the railway station at the western end add to the congestion.

The street is two way immediately outside the subject site. Further east, from Annerley Road it is one way westbound to the corner of Fanny and Warwick where a No Entry sign prevents traffic from entering Fanny Street in a westerly direction.

The developer relies on the planned character of the locality in addition to the existing character. For Fanny Street, this multi-unit development’s size and bulk would be unusual. With the exception of one building, Fanny Street is low density. Density in nearby streets generally increases with a higher proportion of multi-unit dwellings. Those streets remain of low to medium density. Where reference to “locality” or the Development Control Precinct is relevant for an issue in this appeal I accept it is proper to consider other streets in the “locality” or in the “Development Control Precinct” or in “surrounding areas” when City Plan calls for it and to look in the “District” when the Local Plan calls for it. Some nearby streets have a greater proportion of multi-unit dwellings than Fanny Street. It is also legitimate to consider the planned character of an area.[30] There is no evidence of existing approvals which would alter things in Fanny Street. Multi-unit dwellings are permitted in Fanny Street. It is permissible to introduce more density to Fanny Street, subject to the provisions of City Plan. I must take that into account.
[30]Lewis v Townsville City Council & Ors [2012] QCA 99

Local Plan

The subject site is included within the Stephens District Local Plan Area.

Local Plans put forward more locally focused desired land use and built form outcomes for the Local Plan Areas than are contained in the Areas in Chapter 3 of City Plan.[31] Local Plans identify the particular characteristics of the district that are to be considered in assessing any development proposals and identify neighbourhoods where specific land use and built form outcomes are recommended.[32]
[31]Ex. 1 p. 68: Chapter 4 p. 3, s. 1.1 of City Plan.
[32]Ex. 1 p. 70: Chapter 4 p. 5, s. 1.2.1 of City Plan.

Local Plans override any parts of City Plan with which they may conflict.[33]
[33]Ex. 1 p. 42: Chapter 3, p. 9 of City Plan.

The Stephens District Local Plan Area is divided into precincts.[34] The subject site is not identified in any particular precinct. The only provision that may be relevant is development principle 2.1 which provides:[35]
Character housing, including the traditional Queenslander or worker’s cottage on a single allotment with an established garden, is to be complemented by residential development that respects the existing streetscapes, character and amenity of the District.
[34]Ex. 1 pp. 74 and 77: Chapter 4, p. 253, s. 3 and p. 256 of City Plan.
[35]Ex. 1 p. 74: Chapter 4, p. 253 of City Plan.

Relevant provisions of City Plan

The parties’ arguments require reference to diverse parts of City Plan.

City Plan Chapter 2, the Strategic Plan

Within City Plan Chapter 2 is the Strategic Plan. Within it are three components. The third “Elements of the City” is said to express the Desired Environmental Outcomes for the City in terms of overall land use structure, for example “Residential Neighbourhoods”. Relevant extracts from that part of the Strategic Plan are:
4.2 Residential Neighbourhoods
4.2.2.4 Maintaining character
Each neighbourhood has character…
Much… ‘timber and tin’ will remain and new development will reflect traditional design elements while allowing for innovative design responses..
…
Demolition Control Precincts are those locations in older
suburbs that contain pre–1946 housing with distinctive
traditional architecture.
A precinct contains either:
• a minimum group of 3 houses, and at least two thirds
of the precinct contains pre–1946 houses
OR
• a building built prior to 1900
OR
• properties of local significance identified in a Local
or Neighbourhood Plan.
Council, in support of its submissions particularly emphasised from the Strategic Plan that:
It envisages sufficient housing choice to enable residents to remain in their neighbourhood through all stages of their life if they wish.[36] That aspiration is reflected in DEO 1 for all Residential Areas.[37]
Housing choice requires a variety of housing types and tenures to be available across the City and to enable access to housing for a wide range of income levels.[38]
The Strategic Plan makes clears that Demolition Control Precincts are those locations in older suburbs that contain pre-1946 housing with distinctive traditional architecture[39] and in relation to maintaining character relevantly provides:[40]
[36]Ex. 1 p. 21: Chapter 2 p. 17, s. 4.2.2.2 of City Plan.
[37]Ex. 1 p. 44: Chapter 3 p. 27, s. 5.1.1 of City Plan.
[38]Ex. 1 p. 21: Chapter 2 p. 17, s. 4.2.2.2 of City Plan.
[39]Ex. 1 p. 21: Chapter 2 p. 17, s. 4.2.2.4 of City Plan.
[40]Ex. 1 p. 21: Chapter 2 p. 17, s. 4.2.2.4 of City Plan.
“In older suburbs, the unique character is derived mainly from the topography, urban layout and ‘timber and tin’ architecture. Much of this ‘timber and tin’ housing will remain and new development will reflect traditional design elements while allowing for innovative design responses.” (emphasis provided by counsel)

City Plan Chapter 3

Relevant extracts from City Plan Chapter 3 are:
2.5.2 Impact assessment
Development subject to Impact Assessment:
…
cannot be approved if it compromises the achievement
of the DEOs for the Area in which the site is
located
…
5.4 Low–medium Density Residential Area
5.4.1 Intent
The Low–medium Density Residential Area will
contain a mix of houses up to 2 storeys and 2 and 3 storey
multi–unit dwellings and single unit dwellings. Land in
this Area is located in those parts of the City that are
close to public transport networks or centres.
During the life of this plan, a relatively small proportion
of land in this area will be redeveloped for multi–unit
residential. New development must therefore be
designed to co–exist comfortably with neighbouring
houses. This will be reflected in the intensity and scale
of development and a strict adherence to a maximum
gross floor area of 50%, or 60% if in close proximity of
public transport or on arterial roads.
…
Building envelopes for houses on small lots are defined
...
The building envelopes also see to…avoid overbearing development that would occur if the bulk and setbacks of houses were out of scale or character with houses on adjoining lots.
…
5.4.2 Desired Environmental Outcomes
1. Low–medium density living environments comprise
houses, among multi–unit and single unit development
at a house–compatible scale, predominantly of no
more than 2 storeys. Higher densities and 3 storey
buildings occur near Multi–purpose Centres, near
public transport and along arterial roads.
2. The Area has a mix of housing types and forms
at different levels of affordability with adequate
safety, privacy, quiet and comfort. New residential
developments are well designed and sensitive to the
City’s climate.
…
10 Definitions
10.1 Introduction
Definitions are included in the Plan for the following
reasons:
…
• to provide an explanation of the meaning of terms
used in the Plan
…
10.2 List of definitions
...
Ground storey: where a building contains more than
1 storey, the ground storey is the one closest to ground
level (where the distance between ground level and the
ceiling, measured at the middle of the face of the front
wall of the building, is greater than the distance between
ground level and the floor). The term Ground Storey
is not applicable when determining the overall height
of a building in storeys
…
Storey: a space within a building which is situated
between 1 floor level and the floor level next above it
and commencing at ground level, or if there is no floor level above, the ceiling or roof, above, but not a space that contains only:
• a lift shaft, stairway or meter room, or
• a bathroom, shower room, laundry, watercloset or
other sanitary compartment, or
• a combination of the above
For the purposes of this definition a mezzanine is a
storey
The term ‘Ground Storey’ as defined elsewhere in this
section is not applicable when determining the overall
height of a building in storeys

City Plan Chapter 5

Relevant extracts from City Plan Chapter 5 are:

1.1 How to use the Codes
…
Performance Criteria and Acceptable Solutions
…
A proposal not complying with an Acceptable Solution
must provide sufficient information to demonstrate
how the corresponding Performance Criterion has
been met.
…
For … impact assessment the Acceptable Solutions
represent the preferred way of complying with the
Performance Criteria. There may be other ways of
complying with the Performance Criteria while still
meeting the Code's Purpose. It is the responsibility of
the applicant to demonstrate how alternative solutions
comply with the Code's Performance Criteria. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.
…
Residential Design —Character
Code
…
3 Purpose
The purpose of this Code is to:
• encourage development in Demolition 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 complements the
pre–1946 houses.
4 Assessment guidance—explanation of
traditional character
Building form and scale
…Roof forms are medium pitched pyramids, hips or gables.
…
Street context
…
The sense of scale of a street can be diminished if
buildings are introduced that significantly exceed the
surrounding building height, present large unarticulated
facades to the street, or interrupt the rhythm of stepping
roof lines in a sloping street.
…
Setting
The traditional setting of houses in the older suburbs
is a fairly uniform building line…
The setting of new buildings can detract from the
character of a street if garages dominate…or setbacks conflict with the established settings.
…
4.2 Compliance with the Residential
Design—Character Code
Compliance with the Residential Design—Character
Code will be achieved in one of two ways:
• Use of traditional materials as detailed in P1, or
• Use of contemporary materials with character
elements as detailed in P2 to P7 inclusive.

Residential Design—Character Code Performance Criteria and Acceptable Solutions

From Chapter 5 the Residential Design—Character Code Performance Criteria and Acceptable Solutions, (Character Code) so far as they are in issue are:

Performance Criteria	Acceptable Solutions
1. Use of traditional materials
P1 …	A1.1 …
OR
2. Use of contemporary materials with character elements
P2 The building height and bulk must complement the predominant scale of pre–1946 houses nearby in the street Refer to Figure g	... OR For multi–unit dwellings: A2.2 Buildings that are taller or wider than the type of building prevalent in the street consist of clearly distinguishable parts similar in scale to existing pre–1946 housing Refer to Figures g and h
P3 The building setting must complement the traditional setting of pre–1946 houses nearby in the street Notes: This traditional setting usually involves a single width driveway and a fairly uniform building line *This Performance Criterion does not apply to rear access lots*	A3.1 Buildings are set back from any road alignment (excluding eaves, awnings, stairs and garage) within 20% of the average front setback of the nearest pre–1946 buildings fronting the same street Additional requirements for house/s (including small lot houses) A3.2 Garages are setback from any road alignment in a position similar to garages located on sites of pre–1946 houses nearby in the street A3.3 The crossover width is a maximum of 3m ...
P4 The building form must complement the traditional elements of pre–1946 houses nearby in the street Note: This traditional building form usually comprised a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintained the street appearance of lightweight supports to upper floors and reflected the layout of upper floor verandahs	A4.1 The building includes a solid core with attached or integrated lightweight verandah or balcony structures A4.2 Different floor levels are distinguished with the use of entries, windows and balconies A4.3 Where the building is located at the front of the site, living areas, verandahs and windows are orientated towards the street Refer to Figure i Additional requirements for houses (including small lot houses): ...
P5 Roof form must reflect traditional roofs in that part of the Demolition Control Precinct	A5.1 Predominant roof forms will include one or more of a combination of pyramids, hips or gables of a similar pitch and proportions to those of pre–1946 houses nearby in the street In a sloping street where the rhythm of stepping levels and roofs is a characteristic of the streetscape, that stepping is maintained Refer to Figure c A5.2 The building includes eaves that are of similar proportions to eaves on pre–1946 houses nearby in the street A5.3 Roof materials are similar to the roof materials on pre–1946 houses nearby in the street
P6 External elements, materials and detailing must reflect pre–1946 architectural themes, and reduce building bulk and form a transition with the external landscape	A6.1 External elements such as lightweight verandahs and stairs, eaves, overhangs, sunhoods, lattice screens and batten panels are evident to reflect those of pre–1946 houses nearby in the street and are sufficient to cast shadows and provide three–dimensional effects Refer to Figure j A6.2 Where masonry is used it is rendered and/or painted and used in conjunction with other more lightweight materials, particularly to define upper and lower levels. For houses (including small lot houses) these lightweight materials predominate

Chapter 5 continues:

Residential Design—Low Density, Character and Low–medium Density Code

…
3 Purpose
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 neighbours while:
• ensuring new development is compatible in scale
and design with neighbouring houses
• retaining pre–1946 dwellings in 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
…
4 Part A- Performance Criteria and Acceptable Solutions
…
4.3 Multi–unit dwellings in Low–medium Density Residential Areas Performance Criteria and Acceptable Solutions.

4.3 Multi–unit dwellings in Low–medium Density Residential Areas Performance Criteria and Acceptable Solutions

From Chapter 5 the Multi–unit dwellings in Low–medium Density Residential Areas Performance Criteria and Acceptable Solutions at 4.3, (LMR Code: first set) so far as they are in issue, are:

Performance Criteria

Acceptable Solutions

P1 Development size and bulk must be consistent with the low to medium density of the locality

A1.1       Gross floor area is no more than:
• 0.5 times the site area
OR
• 0.6 times the site area where the site has frontage to a road with a reserve width of 15.5m or more, and:
- any part of the site is within 200m radius of any pedestrian entry to a railway or busway station, or
- any part of the site fronts an arterial route, or
- no part of the site is next to a house (where no approval for a multi–unit or single unit dwelling exists)
   Refer to figure n
A1.2       Building height at any point is no more than:
• 8.5m above ground level and 2 storeys
   OR
• 9.5m above ground level to the underside of eaves and 3 storeys where the site has frontage to a road with a reserve width of 15.5m or more, and any part of the site:
- is within 200m radius of any pedestrian entry to a railway or busway station, or
- fronts an arterial route, or
- containing a building over 8.5m above ground level or over two storeys is more than 10m from any lot containing a house (where no approval for a multi–unit or single unit dwelling exists)
A1.3       The site area is a minimum of 600m² and has a minimum frontage of 17m

5 Part B—General Performance Criteria and Acceptable Solutions for multi–unit dwellings…

5 Part B—General Performance Criteria and Acceptable Solutions for multi–unit dwellings

From Chapter 5 at 5 Part B the General Performance Criteria and Acceptable Solutions for multi–unit dwellings (LMR Code: second set) so far as they are in issue are:

Performance Criteria

Acceptable Solutions

Building design and setting

P1 The appearance of building bulk must be reduced by design elements

A1.1 The building bulk is reduced by a combination of:

• verandahs

• recesses

• variation in materials, colours, and/or textures including between levels

• variation in building form

Refer to Figure d

A1.2 Roofs include pitches, gables or skillions

A1.3 Services structures and mechanical plant are screened or designed as part of the building

P2 The development must be orientated to the street and facilitate casual surveillance of the street

Note:
North or north–east facing windows, balconies or decks may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code where this will significantly improve passive solar design

A2 Building has large windows or balconies facing the street

Refer to Figure d

P3 Screening and partial enclosure of balconies is limited to provide privacy for neighbours and comfort for residents without resulting in unattractive buildings or an appearance of excessive bulk or restricting opportunities for passive surveillance of the street

A3.1 Screening of balconies is limited to the side and rear boundaries and the sides of balconies between those units where needed to prevent noise and overlooking of other units or dwellings and recreation areas

A3.2 Street frontages of balconies are not screened or enclosed by shutters, glazing, louvres, or similar permanent stuctures

P4 The front setback must complement the setbacks prevailing in the street

A4.1 In established areas, the front setback is within 20% of the average setback of adjoining buildings

A4.2 In newly developing areas, the setback from a street frontage is a minimum of 3m

P12 Habitable spaces must not directly overlook dwellings on adjacent land

A12 Where habitable room windows look directly at habitable room windows in an adjacent dwelling within 2m at ground floor level or 9m at levels above ground floor, privacy is protected by:

• sill heights a minimum 1.5m above floor level

• fixed opaque glazing in any part of the window below 1.5m above floor level

• fixed external screens

• fencing to a minimum 1.5m above ground floor level (only applies to overlooking from windows at ground floor level)

• achieving the privacy solution shown in Figure e

• where screening of decks is required, it is solid translucent screens, perforated panels, or trellises that are permanent and durable and have a maximum of 25% openings

Refer to Figures e, f, g and h

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 minimise 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 no 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 sun shading devices

What code assessable development could be built as an alternative?

It is appropriate for the court to compare the proposed development with code assessable development which would be permitted on the subject site and to which submitters would have no liberty to lodge a submission against approval.[41] I accept the evidence of Mr Mulcahy that:
“In terms of bulk and scale, it is noted that a detached house on each of the two existing lots, built in accordance with the ‘acceptable solutions’ of the Residential Design – Small Lot Code, may have a wall height of 7.5m above natural ground level at a distance of 1.5m from the side boundary with a 25m building length. Such development would require a Code assessable development application and would have considerably greater impact on the adjoining houses as a result of bulk and scale than the proposed development.”
Further, it is permissible to build a single house on each lot which could result in a gross floor area in excess of 0.77 times the site area. There were concerns raised about the fact that the two front townhouses by being joined presented a bulkier appearance than was desirable. It is also permissible for two single houses to be built with no gap separating them. The front setback for each could be brought to 6m without having to be linked to 20% of the average setbacks of the immediate neighbours on either side.
[41]Newing & Ors v Silcock & Ors [2010] QPEC 49, 692 at 709.

Concerns about size, scale, building design and bulk

Size and bulk issues require reference to at least the Character Code[42] P2 and A2.2 and LMR Code: first set[43] P1 A1.1 and A1.2.
[42]Residential Design—Character Code
[43]4.3 Multi–unit dwellings in Low–medium Density Residential Areas

The difficulty which arises when making this assessment of fact about size and bulk was nicely described in an exchange between the submitter Mr Baldwin and the planner, Mr Mulcahy, as follows:[44]
So I mean, one of the difficulties that I suppose we've all had is to formulate a picture in our minds of what this proposal would look like if it was built, and that's probably one of the contentious points. We weren't provided any - with any pictorials of that so how do you do that? How do you formulate that mental picture?‑‑ Well, by interpreting the plans. I mean, it's - it's part of the town planner's work over - over many years is to understand plans and put them into a - into a 3D in your mind. Some people understand plans, some people don't. It's a matter of just experience in doing that.
[44]T3-23
Mr Veal observed that the proposed development would be “too large and too bulky”[45]among other criticisms for this site. Mr Perkins regards it as consistent with surrounding residential development. Mr Mulcahy reported that size and bulk is consistent with the low to medium density of the locality.
[45]See p. 34 of the Planning JER: Ex. 3 p. 46.

Although Mr Veal stated (at p 21 of Ex 3) “The proposed town house development does not comply with the Residential Design – Low Density, Character and Low-Medium Density Code (Performance Criteria P1 – P7, Part 4”, it is clear from his ensuing discussion of P1 to P7, that he was referring to P1 to P7 of the Character Code.[46]
[46]Residential Design—Character Code

I need not consider noncompliance with P1 of the Character Code as the developer made clear that it seeks to establish its compliance with the alternative of P2 to P7 of the Character Code. P7 is not in issue.

With only one multi-unit dwelling in Fanny Street and with about 90% of the streetscape consisting of pre-1946 character houses, Fanny Street is not representative of the locality. The surrounding streets have more multi-unit dwellings and fewer pre-1946 character houses. Several Performance Criteria require comparison of the development with things nearby. Not all those things to be compared are within Fanny Street. Indeed, the focus which City Plan prescribes in its various relevant Performance Criteria is sometimes required to be narrower than the whole of Fanny Street and sometimes wider. It varies from a focus upon houses nearby in the street to a focus to include the locality and even a focus to include the Development Control Precinct.

Building height and bulk must complement the predominant scale of pre-1946 houses nearby in the street[47]but development size and bulk must be consistent with the low to medium density of the locality. Development size and bulk refers to the whole of the development. Building height and bulk in P2 of the Character Code permits reference to individual buildings within a development to assess individual heights and bulk for the purpose of assessing how scale complements nearby pre-1946 houses.
[47]Character Code P2

Thus, when assessing consistency of development size and bulk, one may look beyond houses nearby in the street and may look to the locality. However, when assessing building height and bulk for the purpose of assessing complementary scale, one is confined comparing only pre-1946 houses and only those nearby in the street.

From the LMR Code: first set[48] Acceptable Solution A1.1 is not complied with. It provides that:
Gross floor area is no more than:
• 0.5 times the site area
OR
• 0.6 times the site area where the site has frontage to a road with a reserve width of 15.5m or more, and:
[48]4.3 Multi–unit dwellings in Low–medium Density Residential Areas
- any part of the site is within 200m radius of any pedestrian entry to a railway or busway station…
The gross floor area is 0.6 times the site area instead of 0.5. It is not within 200 metres radius of the pedestrian entry to the railway station.

Acceptable solution A1.2 is not complied with. It provides that:
A1.2 Building height at any point is no more than:
• 8.5m above ground level and 2 storeys
OR
• 9.5m above ground level to the underside of eaves and 3 storeys where the site has frontage to a road with a reserve width of 15.5m or more, and any part of the site:
- is within 200m radius of any pedestrian entry to a railway or busway station…
The developer’s case is that building height would be below 8.5m above ground level for any building but the building height at places would exceed 2 storeys. That can be made the subject of conditions. The submitters maintained that the height would exceed 8.5 m. Submissions went as far as suggesting 9.5m. Their certainty about that result may have influenced their individual opinions about bulk.

An exception permitting a three storey building and a greater height above ground level than 8.5m arises when road width is 15.5m. That exception does not arise as road width is 13.5m. That road width pre-condition suggests that one significant vice sought to be avoided is an overbearing building facade. Significantly, I accept the evidence that the higher townhouses 3, 4 and 5 which are the only ones more than 2 storeys, will not be visible from the front of townhouses 1 and 2. The sight line from the street prevents this. Those three townhouses at the rear will not present as three storey to the street. There is a limited exception to this. If one stands at the western crossover and looks south down the level driveway cut into the rising ground line, one will probably see the western facades of the three rear townhouses and see that they are three storey. As one walks west from the crossover, the reality is immediately hidden by a screen fence to be built on the western boundary and the western facades visible above the fence could just as easily be confused with those of a two storey building built on the rising ground line obvious in that area. To neighbours they will not present as 3 storey because much of their basements are in the space proposed to be excavated below ground line. There will be no effect on streetscape to the north of the subject site from the height of the rear townhouses. It is possible that the higher rear townhouses will be visible from further west in Fanny Street for those on the street and looking east. If so, the visible parts would be towards the rear of the subject site and no more than 8.5m above ground line.

The intent for the Low-medium Density Residential Area[49] refers to “strict adherence to a maximum gross floor area of 50%, or 60% if in close proximity of public transport or on arterial roads”. “Close proximity” is not defined in the intent or elsewhere. That intent can be contrasted with Acceptable Solution A1.1 which specifies a 200 metre radius as one of the conditions for a gross floor area of 0.6 times the site area. The intent for the area is to allow up to 60% GFA if in close proximity of public transport. A radius of 200 metres is not the defined measure of close proximity. Compliance with that radius is not the only way of complying with P1. The relatively close proximity to public transport is relevant even though the 200 metre radius is exceeded. It remains an important fact that this site is in close proximity to public transport.
[49]Set out in City Plan Chapter 3 at 5.4.1.

The issue is whether the Developer can “demonstrate how alternative solutions comply with the Code's Performance Criteria” while still meeting the “Code’s Purpose”. P1 of LMR Code: first set provides that:
Development size and bulk must be consistent with the low to medium density of the locality.
I accept that “locality” includes Fanny Street but is more than Fanny Street. Inspection and the evidence of Mr Perkins and Mr Mulcahy satisfied me that development size and bulk would be consistent with the low to medium density of the developments in surrounding streets. Mr Veal did not contend otherwise. His concern was with consistency with the size and bulk in the street rather than the locality. But as for this P1 of the LMR Code: first set the developer has satisfied its onus.

Moving to P2 of the Character Code,[50]it provides:
The building height and bulk must complement the predominant scale of pre–1946 houses nearby in the street
[50]Residential Design—Character Code
Mr Veal regards the building as much higher than the surrounding pre-1946 houses. He may have had the relative height of the rear townhouses 3, 4 and 5 in mind. They are to be higher than townhouses 1 and 2. However no building may exceed 8.5m above ground line. Mr Mulcahy is of the view that the proposed development achieves P2.

The height and how the proposed development will present from the street is depicted in Ex. 13. Importantly the proposed development will present as a 2 storey building from the street and the townhouses behind are below the sightline of persons standing in the street opposite the front of townhouses 1 and 2.

Mr Veale reports that the building bulk is much greater than the bulk of surrounding pre-1946 houses. The bulk of the whole development of 5 townhouses is. I do not accept that the bulk of any individual building is “much” greater. The combined northern façade of townhouses 1 and 2 appears wider than its neighbours’ on east and west, but with a roof line that maintains the stepped roof form of the house to its east and to its west.[51] It appears from the street as lower than the house it replaced. Acceptable Solution A2.2 specifically envisages multi-unit developments which may be “taller or wider than the type of building prevailing in the street” and deems P2 to be complied with if such buildings “consist of clearly distinguishable parts similar in scale to existing pre-1946 housing”.
[51]Ex 8 drawing H482-DA-12

The height and bulk of the front façade of the proposed development relative to other houses on the same side of Fanny Street can be seen in Ex. 8 on p. 12 (Plan H482-DA-12 Issue D). Insofar as bulk may be partly comprised of the gabled car accommodation protruding beyond the front façade of townhouse 1 to the northern boundary, car accommodation to the boundary is enjoyed by other houses east of the subject site. That feature complements the houses to the east whose blocks slope up from north to south. I am satisfied that the garage to townhouse 1 will not dominate.

The part of the proposed development with the capacity to create the dominant impression of bulk and to interfere with the stepping roof lines is the part most visible from the street, townhouses 1 and 2 and not the three town houses higher and behind.

I am satisfied that the buildings to be introduced will not significantly exceed the surrounding building height, present large unarticulated facades to the street, or interrupt the rhythm of stepping roof lines in this sloping street.

I accept that the proposed building height (so long as the height of each remains under 8.5m) and bulk would complement the predominant scale of pre–1946 houses nearby in the street.

Front Boundary Setbacks

Two sets of Performance Criteria are relevant; Performance Criteria P3 in the Character Code and the similar P4 in the LMR Code: second set.

Performance Criteria P3 in the Character Code provides:
The building setting must complement the traditional setting of pre–1946 houses nearby in the street
Notes: this traditional setting usually involves a single width driveway and a fairly uniform building line …
This Performance Criterion does not apply to rear access lots
Acceptable Solution A3.1 is not complied with. I have described the setback of the subject site in detail above[52]A 6m setback for the subject site is not within 20% of the average front setback of the nearest pre–1946 buildings fronting the same street, that is, of its neighbours. Those nearest neighbours are on the east and west on the same side of the street. Excluding car accommodation for 32 Fanny Street, the average setback is 8.85m if one relies upon the best available evidence in exhibit 10. To be within 20% the setback should have been 7.2m rather than 6m. I note the setbacks of the 5 nearest houses across the street average less than 4.5m. I note the setbacks of the pre-1946 houses on the same side as the subject site, if the subject site is constructed, would become, from west to east: 6.7m, 9.1m, subject site of 6m, 8.6m, 6.3m, 8m and 6.9m. I accept that the nearest neighbours of the subject site are the odd ones out in the street for their generous setbacks. If evidence consistent with a submitter’s unsworn opinion had been given the setbacks of these odd ones out may have been established as 11.025m and 9.15m. The consequence would have been that the noncompliance with A3.1 would have been found to be by about 2m instead of by about 1.2m.
[52]What is the front boundary setback of the proposed development?

Acceptable Solution A3.2 presumes garages will be set back from the street. That has not occurred east of the subject site. There will be a literal non-compliance with A3.2 though the garage setting for townhouse one actually complements the settings to its east.

Acceptable Solution A3.3 will not be complied with. There will be two crossovers whose total width exceeds 3 m.

I am nevertheless satisfied that building setting would complement the traditional setting of pre–1946 houses nearby in the street.

I am also satisfied that there would be compliance with P4 in the LMR Code: second set whose requirement was to complement setbacks prevailing in the street. If the street is broken into parts or is or unbroken, there would be compliance.

Building Design Elements

Performance Criteria P4 in the Character Code provides:
The building form must complement the traditional elements of pre–1946 houses nearby in the street
Note: this traditional building form usually comprised a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintained the street appearance of lightweight supports to upper floors and reflected the layout of upper floor verandahs
The ground floor does not give the appearance of of a light weight support. I accept that for the reasons explained by Mr Mulcahy and Mr Perkins, the proposed development’s building forms achieve the requirements under P4 to “complement” traditional elements of the pre-1946 houses nearby in the street, in particular through the use of articulation, verandahs, eaves, overhangs and a car port that incorporates a gabled roof.

Performance Criteria P6 in the Character Code provides:
External elements, materials and detailing must reflect pre–1946 architectural themes, and reduce building bulk and form a transition with the external landscape
P6 raises similar issues to those in the LMR Code: second set at P1 which provides:
The appearance of building bulk must be reduced by design elements
The Proposed Development would use lightweight materials, verandahs, a gable, overhangs and eaves, achieving compliance with both of those Performance Criteria.

Roof form

Performance Criteria P5 in the Character Code provides:
Roof form must reflect traditional roofs in that part of the Demolition Control Precinct
The roof forms would be predominantly skillion. Flat roofs are not the traditional roofs found in the Demolition Control Precinct. But the argument for the developer is that it combines flat roofs to reflect traditional roofs and adequately. Pairs of flat roofs join without actually forming an apex. Their pitches would be a little shallower than the pitches of neighbours’ roofs.

A5.1 provides, in part “Predominant roof forms will include one or more of a combination of pyramids, hips or gables of a similar pitch and proportions to those of pre–1946 houses nearby in the street…” One gable has been added for character. Otherwise, there is no contest to the objective correctness of the criticism of Mr Veal that the roof forms are generally low pitched skillion roofs which were not a traditional pre-1946 roof form and that there is no pyramid or hipped roof.

I accept the submission of Council that the focus is upon the word “reflect”. It is not necessary that the roof form will be a traditional roof form. I accept the evidence of Mr Mulcahy that “it is well accepted that skillion roofs with eave overhangs are an appropriate solution for a 2012 building in a demolition control precinct.”[53] That the 2 skillion roofs which join at the front of Fanny Street will present together as a moderately pitched roof as can be seen in Ex. 8 on p. 7 (Plan H482-DA-07 Issue D). The issue is not to determine whether there is a better design capable of fulfilling a performance criterion, but whether a proposal fulfils a performance criterion.
[53]See p. 4, s. 18 of Mr Mulcahy’s report: Ex. 5.

P5 is satisfied.

Privacy and amenity

Building height continued to be described in some of the submitters’ submissions, even after the evidence, as 9m. A condition can alleviate that concern.

Height has relevance to amenity issues too. Height affects views. Loss of westerly views would occur for the Boyd and Baldwin property and but will be alleviated given the alignment of their front verandah and the building setback of the proposed development.

Council emphasised in submissions that City Plan provides that its strategic directions include to:[54]

protect views from the impacts of development only where nominated in a Local Plan, or where development exceeds the relevant Code’s acceptable solution for building height, and as a result detracts from views from nearby properties.
(underlining added by counsel for Council)

[54]Ex. 1 p. 21, Chapter 2, p. 17 s. 4.2.2.1 of City Plan.

I accept Mr Perkins’ opinion that “under City Plan the loss of City views is not a relevant planning consideration – particularly when building height compliance is being proposed and achieved.” [55]
[55]See p. 20 in s. 7.2 of the Planning JER: Ex. 3 p. 32.

Provisions of City Plan that deal most directly with privacy and overlooking are Performance Criteria P12 and P13 of the LMR Code: first set. The Proposed Development complies with the Acceptable Solutions for these Performance Criteria.[56]
[56]See pp. 20-21 in s. 7.2 of the Planning JER: Ex. 3 pp. 32-33.

There is reason for concern about privacy for the neighbours on the east and west of the subject site. The neighbours to the west are no longer appearing as submitters do to steps promised to address their privacy problems. The proposed development complies with the rear boundary setbacks required by City Plan.[57]
[57]See Ex. 1 p. 100: Chapter 5, p. 171 A13.3 of City Plan; see also pp. 21-22 in s. 7.2 of the Planning JER: Ex. 3 pp. 33-34.

The Proposed Development has “been designed so that habitable spaces do not directly overlook dwellings on adjacent land and proposed units within the development.”[58] The Proposed Development uses design elements including opaque glass and screening devices in an attempt to achieve an appropriate privacy outcome.
[58]See p. 20 in s. 7.2 of the Planning JER: Ex. 3 p. 32.

Townhouse 5 is located at the rear of the Proposed Development.

The submitters resident to the east are concerned about the windows in townhouse 5 and the possibility of overlooking occurring from the rear of the proposed development into the entertaining area of the Boyd and Baldwin property.

The impacts of noncompliance with P12 can be mitigated by conditions. I accept Mr Mulcahy’s evidence and recommendation about this. Development conditions should be imposed to require screening to units 3, 4 and 5 to prevent overlooking.[59] The Council has standard conditions about this, which should be imposed.[60]
[59]See p. 21 in s. 7.2 of the Planning JER: Ex. 3 p. 33.
[60]See p. 21 in s. 7.2 of the Planning JER: Ex. 3 p. 33.

Traffic and Parking

In the present case a number of concerns about parking, congestion and other general traffic issues emerged. No Performance Criteria are breached.

The Proposed Development located conveniently to public transport and the parking spaces will exceed the parking requirements under City Plan by almost 60%.[61]
[61]See p. 25 of the Planning JER: Ex. 3 p. 37.

If two houses were constructed, one on each lot, there would be two crossovers.

Light, fence height, driveways and earthworks

The neighbours to right and left do not argue that there is noncompliance with P13 or its Acceptable Solutions.

There is concern about the location of the proposed driveways resulting in unacceptable amenity impacts. As Mr Perkins observes “the residential amenity of adjoining properties will be enhanced through landscaping and boundary fencing.” [62] As Mr Mulcahy observes the proposed development complies with an Acceptable Solution about driveway location by way of acoustic fence of 2m in height being located on the side boundaries.[63] Accordingly there are no unreasonable amenity impacts arising from the location of the proposed driveways.
[62]See p. 29 of the Planning JER: Ex. 3 p. 41.
[63]See p. 29 of the Planning JER: Ex. 3 p. 41.

Mr Perkins and Mr Mulcahy are of the view that the Proposed Development complies with all relevant codes and guidelines for filling, excavation and fencing.[64]
[64]See p. 30 of the Planning JER: Ex. 3 p. 42.

Concerns appear really to be that there is a lack of detailed design. These are matters that will be appropriately dealt with at the building approval stage and are matters that go to whether building works approvals would be granted, not whether a planning approval would be granted.

The issue of an unacceptable precedent

Submitters and the community are concerned that approval of the proposed development would set a “regrettable precedent” for other new developments in Annerley and the surrounding suburbs and the street. That is not a matter I may take into account. In Chesol Pty Ltd v Logan City Council [2007] QPELR 285 Rackemann DCJ observed at [66]:

“As the Court has observed on previous occasions, each case must be assessed on its individual merits. Such an assessment does not generally create a precedent for other approvals. Statements of principle may have precedent value, but if the subject proposal is approved it will be on the basis of its individual merit…”.

It was on that same basis that I approached the case of Szylkarski & Ors v Brisbane City Council & Anor [2012] QPEC 80 about which the parties made appropriate submissions. It was a case decided on different facts and accordingly is not a precedent for me other than on matters of law.

Other available sites

It is not this Court’s function to determine whether a better site exists for a particular proposal but rather simply whether approval should or should not be given for the particular use proposed on the particular site. The Court does not perform a “best sites” test.

Conclusion

It is unnecessary for me to deal with the positive planning grounds asserted by the developer. I am satisfied that the decision to approve would not conflict with City Plan.

My conclusion is premised on the maximum building heights being, as presented for the developer, under 8.5m and that conditions incorporating the recommendations of Mr Mulcahy in Ex. 5 at p. 6 can achieve that outcome. Subject to receipt of conditions of approval which incorporate the recommendations of Mr Mulcahy in Ex. 5 at p. 6, and which require screening to units 3, 4 and 5 to prevent overlooking[65]and the Council’s standard conditions about this[66] I propose to approve the application.
[65]See p. 21 in s. 7.2 of the Planning JER: Ex. 3 p. 33.
[66]See p. 21 in s. 7.2 of the Planning JER: Ex. 3 p. 33.

It is appropriate to adjourn the appeal to allow the Council to formulate conditions of approval in accordance with these reasons.

CITATION:	Ecofence Pty Ltd v Brisbane City Council and Ors [2013] QPEC 60
PARTIES:	Ecofence Pty Ltd ACN 097636121 (Appellant) Appellant v Brisbane City Council (Respondent) and Janis Christine Boyd (Second Co-Respondent by Election) and Robert John Baldwin (Third Co-Respondent by Election) Third Co-Respondenby Election and Kelly Sharon Keys (Fourth Co-Respondent by Election) and Elizabeth and James Wardrop (Fifth Co-Respondents by Election)
FILE NO:	BD 4519 of 2011
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	18 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	15, 16 and 25 October 2012 supplementary submissions to 25 February 2013
JUDGE:	Andrews SC DCJ
ORDER:	Appeal adjourned to a date to be fixed to allow the Respondent to prepare conditions of approval in accordance with these reasons
CATCHWORDS:	Developer’s appeal against deemed refusal of approval for a multi-unit dwelling in a Demolition Control Precinct and in a Low-Medium Density Residential Area – where proposal more than two storey – where street predominantly pre-1946 houses – where five three bedroom units exceeded Acceptable Solutions for GFA and storeys – where skillion roofs noncompliant with Acceptable Solution – where front setback noncompliant with Acceptable Solution – where other multi-unit dwellings in the locality but only one in the street – whether compliant with performance criterion that building height and bulk must complement the predominant scale of pre–1946 houses nearby in the street – whether compliant with performance criterion that building setting must complement the traditional setting of pre–1946 houses nearby in the street – whether compliant with performance criteria that building form must complement the traditional elements of pre–1946 houses nearby in the street – whether compliant with performance criterion that Roof form must reflect traditional roofs in that part of the Demolition Control Precinct – whether compliant with performance criterion that Development size and bulk consistent with the low to medium density of the locality – whether compliant with other performance criteria – relevance of acceptable solutions Sustainable Planning Act s 326 Agtec Holdings v Kilcoy City Council [1999] QPELR Chesol Pty Ltd v Logan City Council [2007] QPELR 285 Jensen Bowers Group Consultants Pty Ltd v Gold Coast City Council [2011] QPEC 049 Lewis v Townsville City Council & Ors [2012] QCA 99 Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24 Simmons v Esk Shire Council [2006] QPEC 101 Szylkarski & Ors v Brisbane City Council & Anor [2012] QPEC 80 Weightman v Gold Coast City Council[2003] 2 Qd R 441
COUNSEL:	J G Lyons (for the Respondent)
SOLICITORS:	Milne Legal for the Appellant Brisbane City Legal Practice for the Respondent