Edwards v Gold Coast City Council
[2004] QPEC 61
•29 October 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Edwards & Anor v Gold Coast City Council & Anor [2004] QPEC 061
PARTIES:
J L EDWARDS AND A P ALEXANDER
(Appellants)
v
GOLD COAST CITY COUNCIL
(Respondent)
and
PALM BEACH DEVELOPMENTS PTY LTD
(ACN 101 716 018)
(Co-Respondent)FILE NO/S:
P & E Appeal No 630 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
29 October 2004
DELIVERED AT:
Brisbane
HEARING DATE:
16, 17, 18, 19 and 20 August 2004; 8 September 2004; and written submissions delivered 17, 24 and 29 September 2004
JUDGE:
Judge Alan Wilson SC
ORDER:
Appeal allowed
CATCHWORDS:
PLANNING LAW – CONFLICT WITH PLANNING SCHEME – proposed development exceeding height limits under former planning scheme – whether conflict also arises under later, IPA planning scheme – nature and extent of conflict – whether favourable planning grounds outweigh conflict
Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990Cases considered:
Broad v Baptist Union and Brisbane City Council (1986) 2 Qd R 317
Baptist Union of Queensland v Brisbane City Council (2003) QPELR 61 at 65
Brencorp Properties Pty Ltd v Pine Rivers Shire Council (1997) QPELR 12
Donald Thallon Surveys Pty Ltd v Brisbane City Council (2002) QPELR 418
Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141
Edgarange Pty Ltd v Brisbane City Council (2002) QPELR 183
Hawkins v Ipswich City Council (1999) QPELR 55
Kentbrock Pty Ltd v Gold Coast City Council (2003) QPELR 587
Vynotas Pty Ltd v Brisbane City Council (2001) QPELR 14
Weightman v Gold Coast City Council (2003) 2 Qd R 441
COUNSEL:
Mr S M Ure for the appellants
Mr J Houston for the respondent
Mr W L Cochrane and Mr M A Williamson for the co-respondentSOLICITORS:
Phillips Fox for the appellants
McDonald Balanda & Associates for the respondent
IPA Law for the co-respondent
The appellants own a small parcel at the north-western corner of a block bounded by the Gold Coast Highway, Fifth Avenue, Cypress Terrace and Fourth Avenue, Palm Beach. The balance (save for another two parcels at the north-eastern corner) has been approved by Council for a Mixed Use Commercial and Residential Development, against which they now appeal. That appeal is brought under s 4.1.28 of the Integrated Planning Act 1997 (IPA), which also provides (under s 4.1.50(2)) that the co-respondent (the developer) bears the onus of proof. The appeal itself is by way of hearing anew (s 4.1.52) and, because the Planning Scheme effective when the Development Application was made was a “transitional” scheme under IPA, sections 6.1.29 and 6.1.30 apply, with the effect the application is to be decided under parts of the preceding legislation (the Local Government (Planning and Environment) Act 1990, sections 4.13(5) and 5(A)).
Under section 4.13(5A), the local authority was required to refuse the Development Application if it was in conflict with any relevant Strategic Plan or Development Control Plan, and there were not sufficient planning grounds to justify approval despite those conflicts. In Weightman v Gold Coast City Council (2003) 2 Qd R 441 (CA) Atkinson J said of similar legislation that it required the decision maker to consider the nature and extent of the conflict; if conflict arose, to identify any planning grounds relevant to it; and, then, determine whether or not the planning grounds in favour of the application were on balance sufficient to justify approving the application notwithstanding the conflicts. Here, (as the developer acknowledges) the proposal involves a number of large buildings several of which are significantly higher than permitted under the old, transitional Planning Scheme, and is also alleged to be in conflict for much the same reasons (although the developer does not concede this) with provisions of the later Gold Coast Planning Scheme, introduced in 2003. There are a number of other issues but in the most part they are associated with these questions concerning height.
The Site
The land to be developed is described as Lot 10 on RP 901040 and Lot 110 on RP 31999, containing 9,819 square metres. The appellants’ land is Lot 121 on RP 31999 and contains 404 square metres. The development site occupies the majority of the block with, by reference to the compass, the Gold Coast Highway to the east, Fifth Avenue to the north, Cypress Terrace to the west, and Fourth Avenue to the south. It is relatively flat and presently contains a mixture of commercial and retail buildings of one-two storeys in height, including a supermarket. These improvements were fairly described as tired and as the town planner Mr Buckley said, “ripe for re-development”.
The buildings on the other side of the Highway are mostly one and two storey and range in function from residential to commercial. To the north, across Fifth Avenue are commercial buildings including offices, a community health centre, and a hotel with a drive through bottle shop. The western side of Cypress Terrace is a residential area, save for a Council carpark at the northern end, and contains one and two storey residences. Similar structures extend for a significant further distance to the west. On the southern side of Fourth Avenue there is a motel and a child-care centre at the eastern, Highway end, with residential buildings (some apparently also used for commercial purposes) through to Cypress Avenue. Low residential buildings stretch further away, to the south.
Some emphasis was placed in the developer’s case upon the proposition that these residential areas to the west and south are in “transition” - that is, that they are generally older and of relatively poor quality or in poor condition and are being, or will most likely be, replaced by new detached dwellings or duplexes. While change of that kind is possible there is no evidence it is occurring in any significant way at the present time and, even if it should happen, the new buildings will on any view be much lower than those proposed in this development.
The Proposed Development
The approved development is of a mixed use type containing multi unit buildings of up to ten storeys. Six residential towers are proposed – three containing eight storeys, one with nine, and two with ten. The plans also show a three storey residential, and a two storey commercial and home office building; two levels of basement carparking accommodating 408 carparks accessed via Cypress Terrace (for the residential component) and Fourth Avenue (for the retail component) and internal retail precincts around a central “spine” at street level incorporating restaurants, cafes and other retail outlets. The developer’s architect, Mr Burns gave lengthy evidence of his efforts (in active consultation with the Council’s urban design officers) to develop the various buildings in ways which, he said, would avoid creating the impression of great height or bulk, and provide architectural distinction and difference; and, indeed, it is the developer’s contention that the proposal is of such high architectural quality that this element is, itself, a major planning ground which helps outweigh any conflicts with the old, or new Planning Schemes.
The Issues
Although the appeal documents identified a wide range of issues they had, by the time the parties delivered written submissions at the end of the hearing, contracted to the questions whether elements of the proposed development were in conflict with either the former, or new Planning Schemes with particular respect to height, setbacks, wall lengths, landscaping, and impacts upon the amenity and character of the area with particular reference to shadowing, visual amenity, and the effects on the appellants’ own land. As part of the issue touching height, the matter of gradation (both Planning Schemes require the stepping down of building heights from the east, to the west of the block) also became important – as, too, did the question of visual amenity, in the context both of the calibre of the proposal itself, and its effects on surrounding areas. The major issues – height, and gradation (and visual amenity and impacts such as shadowing) – fall to be considered on a scale of conflict with the Planning Schemes, and then weighed and balanced against any relevant, favourable planning grounds.
Planning Controls
Under IPA s 4.152(2) this appeal must be decided on the laws and policies applying when the application was made, but the court may give weight to any new laws and policies it considers appropriate. Here, the relevant laws are the former 1994 Planning Scheme of the Gold Coast City Council and the later, 2003 Planning Scheme which came into force on 18 August 2003, some six months after the developer’s application was made, but four months before Council’s resolution to approve it.
It might be thought that when the laws and policies of a Planning Scheme touching a particular parcel change it would be unusual, if not artificial, to give little weight or credence to the altered provisions. In the past, this court has acknowledged that in those circumstances the provisions of a new Planning Scheme may be entitled to considerable weight[1]. It is a reasonable presumption that Planning Schemes are evolutionary and that a later Scheme would usually (but not necessarily) contain a more informed and timely understanding of all the relevant town planning issues. Those considerations alone would ordinarily suggest a new Planning Scheme will attract not insignificant weight. When, as here, the new Scheme becomes effective in the course of deliberations about the proposed development relevant provisions of that new Scheme must attract close attention and considerable weight.
[1]Edgarange Pty Ltd v Brisbane City Council (2002) QPELR 183; Donald Thallon Surveys Pty Ltd v Brisbane City Council (2002) QPELR 418; and, see Baptist Union of Queensland v Brisbane City Council (2003) QPELR 61 at 65
No effort was spared to illustrate the nature and appearance of the development or what was said, by the developer, to be its good features. Mr Burns incorporated, in Exhibit 2, sections which included an analysis of the proposed built form and streetscape perspectives and the court was also provided with photo montages intended to show how it would look from various perspectives. Emphasis was placed upon design features said to ameliorate the effects of height, scale and bulk including variations in colour and design and architectural style, and strategies including the stepping back of higher units in an attempt to reduce the effects of height; and, elements and features described by the architect as “feathering, lightweight elements and fenestration; sunhoods; mansard roof elements; blades and penthouses; tapered foot plates and setbacks; and, butterfly and skillion roofs”.
This emphasis by the developer upon aesthetic and design features was pressed in the particular context of various parts of the later Scheme which speak in very general terms of a requirement that new developments in this area “promote aesthetic improvement” and, in the earlier Plan, achieve “a high function and visual standard”.
Statements of that kind exemplify the breadth and complexity of the issues traversed in modern Planning Schemes, which are invariably large and complex. As this court has remarked, they must be read as a whole and in a way which necessarily involves discriminating between statements in them, some of which might be said to set out fundamental principles and others which, though relevant, may be less determinative. As Skoien SJDC said in Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141 at 143, the correct approach to their construction will:
…emphasise the necessity of reading the Strategic Plan as a whole. That is not to say that one goes in search of an isolated statement anywhere in a document which, when taken out of context, might support an argument. Such a search, in most Planning Schemes, could unearth support for almost any argument. If however a statement can be found which clearly sets out a fundamental principle of the Planning Scheme which argues for or against a proposal, then it is proper to give weight to it even though the proposal relates to land which is specifically dealt with in another part of the document.
In Vynotas Pty Ltd v Brisbane City Council (2001) QPELR 14 Robin QC, DCJ said, in a similar vein at 40:
In a complex appeal such as this, the court should be reading the Planning Scheme as a whole. I have set out extensively passages which I accept are relevant, and have taken into account. The Scheme is bulky, often repetitive, and not devoid of conflicting messages. Provisions which are there which come close to providing ‘appeal for almost any argument’ …
Under the 1994 Planning Scheme Palm Beach is designated as a “District Centre” and that designation applies, as a PDLU, to this site. It is also included in the “Comprehensive Development Zone” and is an area controlled by Development Control Plan No. 3 – Palm Beach Area (DCP). Under that DCP it is included in two Precincts; Precinct 1 – Central, and Precinct 2 – Cypress Terrace. The land to the south and west of the site is allocated, in the main, to the Residential Duplex Dwelling Zone.
The 1994 Scheme propounds the development of these District Centres in a way which achieves “a high function and visual standard” and, for that purpose contains provisions regulating such things as building scale and setbacks, site coverage, landscaped open space and building aesthetics. The respondents properly concede this proposal is in major conflict (by reference to the scale suggested in Weightman) with the provisions dealing with height, residential density, plot ratio, and site coverage, but contend there are sufficient planning grounds to justify approval despite those conflicts.
The 2003 Scheme categorizes Palm Beach as a “Subregional Centre” and this parcel is included in the Palm Beach Local Area Plan (LAP); and, within Precinct 1 – Central of that LAP. It, too, contains specific provisions dealing with the issue of height and, although they are again exceeded the co-respondent contends that, because that excess does not create adverse impacts upon neighbouring sites, the proposal was properly approved by Council.
There is one preliminary question: whether the later Scheme envisages a higher order function than the earlier and, if so, of what nature. The 1994 Scheme speaks of a District Centre providing shopping facilities for surrounding residential neighbourhoods and including a district level shopping centre of up to 12,000 square metres, but the 2003 Scheme contemplates the “Subregional Centre” providing retail facilities of up to 40,000 square metres including a discount department store, for a catchment area of 40,000-60,000 people. Although the town planner called by the co-respondent, Mr Buckley, thought these designations were “fairly similar”, I think it is obvious the later Scheme involves an increase in scale, and that will affect such matters as the community’s reasonable expectations about the kind of development which might be permitted under the later Scheme and, hence, how the impacts of the proposal are weighed.
Height
Under the former DCP the eastern portion of the site lies in Precinct 1 and a smaller section on the western side in Precinct 2[2]. Clause 20.1.2 of the DCP sets out “Visual Amenity Objectives” which require that the height of buildings be limited:
…so as to achieve a gradation in the townscape and urban character of the area and to ensure that the buildings complement surrounding developments and do not have an adverse effect on the amenity of the are
[2]Exhibit 3, Palm Beach Central Area Development Control Plan Area Map, Part 20-2
Clause 20.2.4 imposes maximum building heights which “…shall not be exceeded in any circumstances”. In Precinct 1, the building height is seven storeys, and in Precinct 2, three storeys. The purpose of these strict height limits is explained thus:
20.3.1. …to ensure that buildings do not have an adverse visual effect on the low rise areas to the west and are compatible with developments to the north and east
20.4.1.…this Precinct (Precinct 2) constitutes the interface between the residential area to the west and to the core of the commercial area to the east. Consequently it is intended that this Precinct be developed in a manner which will complement the commercial area while not affecting the amenity of the residential area
…
The height of buildings within this Precinct is limited to three (3) storeys so as to ensure that buildings are compatible with residential developments to the west … residential densities have been limited to a low to medium density so as to ensure a transition from the higher density areas to the east and the lower density areas to the west.
Under the developer’s proposal there are three buildings of ten, nine and eight storeys in Precinct 1, notwithstanding that the height limit of seven storeys may not be exceeded “in any circumstances”. Even greater conflict appears in Precinct 2 where part of one building of ten storeys, and a building of eight storeys lie within the Precinct area despite the absolute height limit of three storeys.
Under the 2003 LAP, the following goals are expressed:
2.4…the height of buildings will not have an adverse effect on the amenity of low rise areas to the west and south of the Precinct, and building height will be compatible with buildings to the north and east of the Precinct.
…
3.1 …a gradation in the townscape and urban character must be achieved. There is a transition in height of buildings from medium rise to the east over to low rise to the west (my emphasis)
Elsewhere, the LAP provides for maximum building heights which effectively coincide with those prescribed by the former DCP.
It was nevertheless contended that the absence of any adverse impacts on neighbouring sites, and the gradation of the buildings incorporated in the design meant the developer had satisfied the relevant Performance Criteria in the new Scheme, and the proposal was not in conflict with it.
Those contentions cannot prevail. As designed, the proposal places its largest buildings close to the western and southern boundaries, in plain opposition to the requirement for a transition in height from medium rise to the east, over to low rise to the west. While IPA generally turns its face against absolute prescriptions in Planning Schemes the use of terms like “maximum building heights” suggests, as the town planner called by the appellants Mr Reynolds said, that the limit here is at the “high end of the certainty scale when it comes to interpreting the IPA Planning Scheme”[3]. As to gradation, the transition on the western side is at least abrupt, if not dramatic. On no view can it be said to be consistent with notion of a transition from east to west. So much was fairly admitted, in fact, by the appellants’ architect[4]. (It is also unsurprising that the co-respondent sought to have the height limits on this site increased before the 2003 Scheme was introduced. The Council carefully considered that question, but declined to do so[5].)
[3]T 404.36
[4]T 109.20
[5]Exhibit 1, Appeal Book, Volume 2 page 36
The significant excess in building height, the placement of the higher buildings in positions in contradistinction with the requirements of the Scheme, and what might, not unreasonably, be called an adventurous approach to requirements about gradation present obvious hurdles to the co-respondent’s attempts to establish an absence of adverse impacts on surrounding properties. In an attempt to surmount them, the developer submitted that this proposal would nevertheless be in keeping with the character of the likely redevelopment of the surrounding area, and was attractive and illustrated a high standard of urban design and of visual amenity. The first proposition is, essentially, hypothetical and faces the difficulty that, even if redevelopment occurs in the surrounding streets, it will be on a low scale of only one-two storeys. The second is appropriately considered as, in the face of the clear conflicts with both Planning Schemes, at best a favourable planning ground to be balanced, later, against what I am satisfied is clear conflict with the 2003 LAP.
Inevitably, other parts of the Scheme might also be said to touch these issues. Under the LAP, PC 13 provides that buildings should be:
… sited to complement the subregional activity centre character and the built form of the surrounding area, and to reduce potential conflicts between uses having regard to a site analysis …
While there can be no doubt this proposal was the product of a long and complex, and thoughtful, design exercise and is said to reflect and address the inevitable difficulties confronting an architect attempting to design and site any new development, and could be said for those reasons to complement the subregional centre character, PC 13 must be read in light of the earlier provisions which have plain height limitations and requirements for gradation and cannot be construed as strongly supportive of this proposal.
Other Design Elements: Landscaping, Setbacks and Wall Lengths
The DCP provides that to achieve “visual amenity objectives” any development with a frontage to street must devote a significant proportion of the site (at least 30 per cent) to landscaping, at ground level, adjoining the street frontage. It is clear these provisions apply to a mixed use development of this type: DCP Clauses 20.1.2(a)((iii), 20.2.6, 20.3.6, 20.4.6 and 20.7.4. The short fall here is, as the respondents concede, about one half, but reliance is placed upon the high standard of what is proposed, and the presence of additional landscaping at an upper, podium level and, also, the presence of an internal gym for the use of residents plus the vehicular and pedestrian access provided through the site, and its retail facilities, as factors warranting relaxation of the Scheme requirements.
The LAP also contains guidelines about the quantum of landscaping, but the various provisions make it difficult to ascertain which, or which combination, might apply here. It was suggested for the developer that its proposal was compliant with relevant Performance Criterion[6] some of which involve a judgment whether what is provided is of a high standard and achieves such things as enhancement of “the streetscape” and “visual links”. The evidence of the landscape architect called for the developer, Mr Franzmann encouraged favourable conclusions about these matters but I am satisfied that the Performance Criteria and other parts of the Planning Scheme dealing with landscaping[7] envisage considerably more open, landscaped areas than are provided in this proposal and it is one which is in conflict with the DCP and the LAP in that respect.
[6]PCs 18, 19 and 20 of the Palm Beach LAP Place Code; PCs 11 and 24 of the High Rise Residential & Tourist Accommodation Code; PCs 1 and 3 of the Landscape Work Code; and, PC 3 of the Retail and Related Establishments Codes
[7]Exhibit 1, Volume 2, pp 84-103
Setback Provisions in the DCP[8] require that in Precinct 1 all buildings must be set back one-three metres below two storeys, and six metres above that height, and three and six metres in Precinct 2. Both may be relaxed. The proposal is in plain breach of these provisions in a number of respects, summarized in the evidence of the architect called by the appellants, Mr O’Brien[9], with consequences he described as exacerbating the impact of shadowing on adjoining properties and, vividly, a “… monstering of the … adjoining residences by the … proximity of the high buildings”.
[8]Clause 20.3.8, 20.4.8
[9]Exhibit 14
The later LAP contains more general criteria, simply requiring that setbacks contribute to an “interesting street perspective and to the visual amenity” of the area and be appropriate for its “local character”[10]. As Mr Burns said, these do not provide an empirical formula and, in the additional light of the relaxations permissible under the former Scheme it is appropriate to consider the question of conflict here in the context of visual impact, about which I found the evidence of Mr Reynolds (the town planner called in the appellants’ case) and Mr O’Brien persuasive, because it was in accord with the strong impression gained from the visual aids. Mr Reynolds said[11]:
Combined with the significant height and width and the number of towers along each frontage, the minimum setback proposed will cause an overbearing visual impact on Fourth Avenue, to the detriment of the street’s character and that of adjoining low density residential area. This physical form of development exceeds that which the community could have reasonably expected on this site.
[10]Performance Criterion 5,6
[11]Exhibit 13, para 5.4.18
Mr O’Brien’s equally strong views placed the non-compliance with setback requirements in the context of the height excesses and, appropriately, pointed out that they might have been more readily forgiven had the taller buildings been contained within Precinct 1 under the old Scheme or, under the new one, appropriately placed further to the east. These conclusions, again, accord with the impressions which spring from the photo montages and confirm the conclusion that non-compliance with the setback provisions gives rise to significant conflict with both Schemes.
DCP provisions contain a requirement that horizontal lengths of wall on one plain be not greater than 15 metres, subject to appropriate relaxation[12]. On Fourth Avenue one wall is 42 metres long, and on Fifth Avenue there is another 40 metres long at ground level, and 23 metres long at the level immediately above. As Mr O’Brien conceded, however, the presence of residential foyers and some landscaping on both frontages, and retail shopfronts on Fifth Avenue would ameliorate the effects of the non-compliance (which had probably been exacerbated by a lack of detail in the design drawings). Under the LAP, Performance Criterion 7 simply requires that building and frontage design contribute to interesting street perspectives and visual amenity. I accept that, in the context of the overall design, relaxations under the DCP may have been appropriate, and design features might create compliance with the LAP; but, in the context of the primary issues of height, scale and bulk the non-compliance with the DCP limits presents as another area of conflict with the Planning Scheme, albeit at the lower end of the scale, because the excess lengths exacerbate the impact of the other areas of excess – height, want of setbacks, and inadequate gradation.
[12]Clauses 20.3.8, 20.4.8 and 20.7.4; ss 4.1.6.9.4
The appellants also raised questions of plot ratio and residential density in the appeal and, ultimately, submitted that conflicts with planning provisions about them, while not as significant as those concerning such matters as height nevertheless had some contributory influence. The Council conceded that the proposed development involves plot ratios greater than those permitted under the DCP in Precinct 2, and prescribed residential densities were exceeded in both Precincts. The DCP does, however, make some provision for the granting of “bonus” floor space where development involves the perceived benefits of land amalgamation and unique building design. These elements mean that these conflicts are, at worst, relatively minor although they must also be seen as adjunctive to and part of the primary conflicts concerning height, and scale.
Amenity
The principal amenity impacts in relation to the proposed development are visual effects, and the consequence of shadowing on adjoining properties. The appellants also raised issues concerning traffic, and noise, and the particular effects the proposal would have upon the appellants’ own land.
The traffic engineer called by the appellants, Mr Brameld, did not go so far as to suggest the proposal ought to be refused on the basis of traffic impacts and the evidence of another expert, Mr Healy, showed any increases in traffic flow would not have unacceptable effects. Mr Brameld also raised issues about headlight glare as vehicles left the residential carpark in Cypress Terrace but the effects seem to be minimal and unlikely to significantly trouble the owners of the one residence likely to be in the line of fire, as it were. Mr Brameld was also concerned about the noise and effects of construction traffic but, as Mr Healy pointed out, that could be adequately dealt with by a Development Condition requiring a Management Plan.
Although the possible impacts of noise were also raised by the appellants, and by Mr Brameld and Mr Reynolds, the evidence of the expert Mr Carter satisfactorily established that all aspects of the development would comply with recommended noise criteria and no adverse impacts were apparent.
The potential effects of shadow were illustrated in drawings prepared by Mr Burns[13]. The tall buildings will cast shadow across buildings in Fourth Avenue including the Childcare Centre, and also affect some homes in Cypress Terrace at certain times including winter. Mr Burns conceded five of the buildings did not comply with the 1994 Scheme provisions in relation to shadowing but the respondents nevertheless contended the effects were relatively minor, and appropriate subjects for relaxation. The architect called by the appellant, Mr O’Brien thought excess height and inadequate setbacks militated against relaxation and, in the face of the developer’s choice to exceed the height limits and place the buildings in positions discordant with the clear intent of the planning schemes, I am not persuaded it should have the benefit of any dispensation.
[13]Exhibit 2C
The plans and photo montages also illustrate quite significant visual effects upon the appellants’ own property and, I am satisfied, apparent conflict with s 20.7.7(b) which requires the integration of new structures with adjoining facades, and the avoidance of obvious inconsistencies between adjoining developments. It is difficult to imagine how this proposal could have more effectively alienated the appellants’ property, both physically and aesthetically; and, as Mr Reynolds pointed out (and Mr Buckley agreed) it would be rendered quite unsuitable for residential development. The proposal plainly impacts, adversely and seriously, upon the appellants’ property in the context both of its present use, and potential future development.
Matters as broad as questions involving visual impacts, considered in the context of the amenity of an area, involve wide ranging and subtle criteria[14] and, of course, the reasonable expectations of the affected community – judged in the context of statutory planning controls[15]. Relevantly here, submissions from the community were, in the majority, supportive but those who lodged adverse submissions[16] focussed squarely on the height of the buildings, and their visual intrusion and other effects.
[14]Broad v Baptist Union and Brisbane City Council (1986) 2 Qd R 317 per Thomas J at 319
[15]Brencorp Properties Pty Ltd v Pine Rivers Shire Council (1997) QPELR 12; Hawkins v Ipswich City Council (1999) QPELR 55
[16]Exhibits 26-30; 32
While the respondents acknowledge major conflict with the DCP, they contend that exceeding the maximum height limitations under the LAP does not trigger conflict of the same order because the excess simply attracts a need for impact assessment, and an understanding of that would temper and limit community expectations. That is correct, but a careful, lay reader of the large and complex 2003 Scheme would reasonably conclude that maximum building heights, and emphasis on a transition from medium rise in the east to low rise in the west, would be matters to which considerable weight must be given. That conclusion seems to me to both define, and reflect the nature of community expectation in the context of the present Planning Scheme, and this proposal.
The Degree of Conflict
A determination of the degree of conflict in cases involving non-compliance with parts of Planning Schemes must depend not only on the degree of departure from the stated criteria, but also on impacts. Here, there are plain and significant conflicts with the provisions of the DCP dealing with height, gradation, setbacks and landscaping. I am also persuaded that the proposal is in significant conflict with the preferred character of Precinct 1 in the LAP and in particular with PC 1 (height), PC 2 (adverse impact on neighbouring sites), and other criteria dealing with building siting, setbacks and landscaping and, ultimately, visual amenity (as a product of the other conflicts). On any view many if not all of these conflicts are at or near the higher end of the scale envisaged as part of the exercise of analysis discussed in Weightman. The Court of Appeal did not categorize the matters which might constitute “planning grounds” but, in context, the expression must mean relevant town planning considerations, the view taken by McLaughlan QC, DCJ in Kentbrock Pty Ltd v Gold Coast City Council (2003) QPELR 587 at 592. The respondents rely, primarily, upon aspects of the location and design of the buildings in the proposed development said to both ameliorate the effects of additional height and, indeed, provide actual beneficial effects on the amenity of the area.
Some parts of the DCP and the LAP clearly encourage the consolidation of smaller parcels and the redevelopment and upgrading of the amalgamated land and that has occurred here, on a site which is “ripe for redevelopment”. Additional beneficial features include the provision of shopping and eating facilities for the public, and access through walkways across the site so private land is made available for public use. The proposal provides an opportunity to consolidate and upgrade the District Centre, and enhance “pedestrian permeability”. Finally, it is said that the design of the proposal represents a high standard of visual, urban and landscape features constituting a “positive betterment” for the area.
Some of these beneficial effects cannot be gainsaid and the question becomes whether they are, on balance, sufficient to justify approval notwithstanding identified conflicts.
Mr Burns has plainly put considerable effort into design features intended to make the buildings distinctive and attractive, and to lessen the effects of their height. Those efforts are commendable but they fall to be considered in the context of the siting of high buildings in positions which directly contradict the obvious planning intent expressed in both Schemes and have, I am satisfied, the unfortunate effect of maximizing the effects of height.
The design devices intended to minimize those effects and reduce the impacts of height were not, despite Mr Burns’ best efforts, persuasive and the opinions of Mr O’Brien coincided with those to which I was compelled: in particular, that viewed as a whole the effect of having separate buildings did not achieve the fragmentation and distinction Mr Burns hoped; that the various buildings had not been satisfactorily positioned with respect to the amenity of the surrounding area; and, while obviously the product of considerable expertise, they were not of such a high design calibre as to overcome those adverse impacts.
I also found Mr Reynolds’ view – that the master plan for the development was fundamentally wrong because the buildings were in the wrong place – persuasive. As he said:
…the density on the site is fundamentally in the wrong location…they haven’t treated Fifth Avenue with appropriate intent as under the Local Plan and the DCP…because of the inadequacies of just the fundamental layout of this proposal it’s my view…that no sort of colouring or feathering or cornice treatments or landscaping can really adequately compensate for those fundamental layout problems that this design has.[17]
[17]T 406.8-25
The provision of good quality, and publicly usable spaces at ground level carries an obvious benefit but, as Weightman emphasizes, favourable planning grounds must have some relevance to those parts of the application from which conflict arises. There is no evidence that the quality of the ground level spaces which have been provided is contingent upon the allowance of additional building height. The same may be said of the fact that significant, additional residential density is provided adjacent to a District Centre: it is not established that a compliant development could not also achieve that density. The respondents also advanced the proposition that consolidation of the District Centre was a favourable outcome but, again, there is nothing to suggest a proposal which complies with planning controls about height, placement and gradation could not have the same beneficial effect by improving retail, commercial, tourist and community services for Palm Beach. Nor, save for the replacement of old buildings with new ones, will this proposal improve the streetscape of the Palm Beach area in a way which might not have been achieved by a compliant proposal.
My acceptance of Mr O’Brien’s conclusion that the proposal did not demonstrate an especially high standard of visual urban design or landscaping is not intended as a criticism of Mr Burns’ efforts or any attempt to impinge upon areas of specialist architectural design, and matters of aesthetics. On any view many parts of the proposal appear to be attractive and interesting but, overall, I agree with Mr O’Brien that they do not comprise sufficient justification to forgive the major areas of non-compliance, and conflict.
Finally, it was suggested in the developer’s submissions that the absence of any other site in the Palm Beach LAP area capable of accommodating a mixed use development of this sort is a favourable, albeit not determinative factor, but the proposition fails for the same reason as some others: the absence of evidence that a satisfactory mixed use development on this site can only be achieved in a way which involves significant conflict with planning controls. In this context, some criticism was advanced of the appellants’ failure to suggest an alternative plan or design which could address what was said to be the siting difficulties they raised. I do not think there is a burden upon the appellants to prepare and proffer a compliant design. Mr O’Brien said and I accept that a compliant development could readily be designed and that seems, almost, self evident. Certainly the developer did not advance evidence suggesting some particular aspects of the site, and the planning controls affecting it, necessitated non-compliance or made a compliant design particularly onerous.
Conclusion
The proposal is in clear conflict with important parts of the former DCP, and those conflicts are not extinguished by planning grounds favouring it. It is also in conflict, I am satisfied, with provisions of the later LAP with impacts which are not, again, outweighed by any relevant favourable planning grounds. The appeal is upheld.
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