Friend v Brisbane City Council

[2013] QPEC 77

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Friend v Brisbane City Council [2013] QPEC 77

PARTIES:

ROBERT FRIEND
(appellant)

v

BRISBANE CITY COUNCIL
(respondent)

And

TRENTHAM HOLDINGS PTY LTD ACN 066 159 984 TRADING AS BT HOTELS AND PROPERTY GROUP
(co-respondent by election)

FILE NO/S:

BD 293/13

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

6^th December 2013

DELIVERED AT:

Planning and Environment Court Maroochydore

HEARING DATE:

30^th September 2013 – 4^th October 2013

JUDGE:

Robertson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

SUBMITTER APPEAL : Council approved mixed use development in Woolloongabba; where submitter appellant raises issues of conflict with City Plan around building height, scale and density, heritage issues; unacceptable amenity impacts particularly in regard to overlooking and shadow;  whether State Government PDA adjacent to the site in Woolloongabba was relevant in the assessment process; weight to be given to Draft City Plan and Temporary Planning Instrument promulgated since approval; whether Woolloongabba Neighbourhood Plan provisions had been overtaken by events; where provisions in Plan are ambiguous inconsistent and/or anomalous

Legislation:

Economic Development Act2012

Integrated Planning Act 1997

Local Government (Planning and Environment) Act1990

Planning and Environment Court Rules 2010

Sustainable Planning Act 2009

Urban Land Development Act 2007 

Cases:

Gracemere Surveys Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] Q.P.E.L.R. 406

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266

Lockyer Valley Regional Council v Westlink Pty Ltd (2012) 191 LGERA 452.

Mackay Shopping Centre Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 29

Main Beach Progress Association Inc v Gold Coast City Council & Anor [2008] Q.P.E.L.R. 675

SDW Projects Pty Ltd v Gold Coast City Council [2007] Q.P.E.L.R. 24

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

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306

COUNSEL:

Mr J Houston for the Appellant

Mr B Job for the Respondent

Mr D Gore QC and Mr D O’Brien for the Co-respondent

SOLICITORS:

Roberts & Kane Solicitors (Appellant)

Brisbane City Legal Practice (Respondent)

Mullins Lawyers (Co-respondent)

1. On 20 November 2012 Council approved an application for a development permit by Trentham Holdings Pty Ltd (Trentham), granting a development permit for a multi-unit dwelling, short-term accommodation, hotel and centre activities (shop, office, restaurant), and a development for reconfiguration of a lot (18 lots into two lots) subject to conditions in respect of Trentham’s land at 2-20 Reid Street, 735-747 Stanley Street and 9 Hubert Street, Woolloongabba.

1. The subject land has a combined site area of 8,635m².  It is the material change of use component of the proposal that is the focus of the appeal. 

1. Presently as part of the site covering a number of lots on the corner of Stanley Street and Reid Street is a locally listed Heritage Place, the Chalk Hotel.  The intent of the reconfiguring of a lot application is to separate the Chalk Hotel and adjoining building along Stanley Street from the rest of the site, which is then intended to be developed for a mixed use development.  Proposed renovations to the Chalk Hotel include removal of the modern extensions to the rear and refurbishment of the adjoining commercial building.

1. The mixed use development involves three towers.  The two towers (towers 1 and 3) facing Reid Street, are situated on a podium which contains car parking, non‑residential uses and residential units.  Tower 2 facing Hubert Street does not have an extensive podium form (compared to the two towers facing Reid Street) but is linked to the podium level retail and pedestrian plaza associated with these towers.  It has units and car parking at podium level facing Hubert Street and does not contain non-residential uses at that frontage.  All three towers are proposed to contain a mixture of residential uses (a mixture of short or long-term accommodation).

1. In the form approved by Council, tower 1 is proposed to be 20 storeys in height and is located directly south of the Chalk Hotel with frontage and vehicular access to Reid Street.  Tower 2 is proposed to be 18 storeys tall and is located east of tower 1 with frontage and vehicular access to Hubert Street, but with the basement linked to that under tower 3, which is accessed from Reid Street.  Tower 3 is proposed to be 12 storeys tall and is immediately south of tower 1 and shares the Reid Street frontage, although with a separate vehicle entrance. 

1. Other important matters to be noted in relation to the proposed development are that:

(a)        At ground level of the mixed use development, there is a proposed publicly accessible pedestrian path which links Reid and Hubert Streets;

(b)        The total GFA of the development is 31,961m²:  1,270m² non-residential GFA (retail and commercial components); 1,687m² GFA for the Chalk Hotel; and 29,003m² for residential units;

(c)        The residential units consist of 420 one bedroom units and 47 two bedroom units;

(d)        A total of 571 car parking spaces are proposed, along with 550 bicycle spaces; and

(e)        The plot ratio of the development is approximately 3.7.

1. The subject land is predominantly within the Multi-Purpose Centre – MP2 (Major Centre) designation in the Brisbane City Plan 2000 (the Planning Scheme).  However a part of the subject land including the Chalk Hotel with frontage to Reid Street and Stanley Street is within the Multi-Purpose Centre – MP3 (Suburban Centre) designation.

1. At present the site is being used as the Chalk Hotel and car park, a number of commercial buildings, and four detached dwellings.  Surrounding land uses abutting the development south are detached houses, abutting the development south-east are multi-unit dwellings and abutting the development north-east is an office and shop. 

1. The proposal was impact assessable and attracted 199 submissions.  Nine were in support and 190 against.  177 of the adverse submissions were based on a template.

1. On 25 January 2013 a number of the submitters lodged an appeal to this Court.  An Amended Notice of Appeal was filed on 22 February 2013.  A number of the appellant submitters have withdrawn from the proceedings, leaving only one, Mr Robert Friend, as an active participant.

1. The subject land is located in the Urban Footprint of the South-East Queensland Regional Plan 2009-2031.  While the Regional Plan has no requirements specific to the site or proposal, it does, as a general principle, encourage infill development and urban consolidation in the Urban Footprint.  Further, it identifies the subject land as being within a Major Activity Node.  In response to the forecast of sustained high levels of population growth for Brisbane, the Plan envisages uplift in development intensity in inner city areas and along major corridors.  The SEQ Regional Plan relies on the Local Authority Planning Schemes to implement these higher level objectives.

1. Recognising that there is dispute as to its relevance, the joint expert reports from the town planners refer in some detail to a 10 ha site in Woolloongabba which is directly opposite the site across Stanley Street to the north which is under the control of the State Government.  This site was declared as the Woolloongabba Urban Development Area by a Regulation by the then Minister for Infrastructure and Planning on 23 April 2010 pursuant to the Urban Land Development Act 2007.  The Urban Land Development Act 2007 has been repealed and replaced by the Economic Development Act 2012. The Woolloongabba Urban Development Area has now become the Woolloongabba Priority Development Area (the PDA) without any changes to the boundaries. A development scheme for the PDA was approved by the State Government on 15 April 2011 to facilitate the land’s development. There is dispute between the planners as to the relevance of the PDA in the assessment of the proposal here.

1. The subject land is mapped as being within the Residential Neighbourhoods Element of the Strategic Plan within the Planning Scheme.  This broad-brush mapping generally correlates with Area designations, and in the case of Residential Neighbourhoods these include only Convenience (MP4) and Suburban (MP3) Centres.  The City Plan includes the subject land for the most part in the MP2 area designation with a strip along Stanley Street within the MP3 area.

1. The proposed activities fall under the wider definition of “Centre Activities” which includes a range of uses (including residential, commercial, retailing and community uses among others) specifically envisaged and considered appropriate to occur in Centres.

1. The primary assessment Code in this case (and that which sets the level of assessment) is the Woolloongabba Centre Neighbourhood Plan (the Neighbourhood Plan), which was adopted as part of the Planning Scheme in March 2009.  The subject land falls within the Ipswich Road and Stanley Street Corridor Precinct within the Neighbourhood Plan.  Centre activities in the Precinct under the Neighbourhood Plan are identified as being subject to impact assessment and as being “Generally Appropriate” where involving building work and greater than eight storeys on sites greater than 8,000m².  However where Centre Activity proposals do not comply with the Acceptable Solutions for building height and plot ratio, as is the case with the proposed development, the development is identified as “Generally Inappropriate”.  There is dispute as to the proper construction of these and other provisions of the Neighbourhood Plan.

1. The Stanley Street and Ipswich Road Precinct, has as part of its Intent, a stated intention for six to eight storey development and also envisages a sliding scale of development intensity under which larger lot sizes are able to take advantage of greater yields. There is a clear tension in this part of the Plan to which later reference will be made. As part of Trentham’s case, it contends that the Neighbourhood Plan has been overtaken by events to the extent that it fails to take into consideration, the substantial land use, urban design and built form implications associated with the PDA and subsequent adoption of the Development Scheme by the State for that area , and internal inconsistencies, particularly in respect of establishing the level of assessment when dealing with site area, height and gross floor area , as well as failing to clearly document Council’s planning intentions in relation to these issues.  Mr Kay, the expert town planner who gave evidence on behalf of Council, did not specifically agree with Mr Ovenden, the town planner for Trentham, in the first joint expert report that the Neighbourhood Plan had been overtaken by events; but by the time of the second joint expert report he had come around to that point of view.  In addition to the PDA, Mr Kay opines that the Kangaroo Point South Neighbourhood Plan promulgated after the Neighbourhood Plan is also relevant to this issue.

1. The town planners met for a second time and produced a supplementary joint expert report, essentially because the appellant was given leave to file a Further Amended Notice of Appeal dated 15 August 2013 relating to two events which had occurred after the commencement of the appeal.  On 7 July 2013 Council adopted a Temporary Local Planning Instrument 01/13 (TLPI) which was gazetted on 8 July 2013, which the planners agree is designed to facilitate the protection of residential buildings constructed prior to 1911.  The planners agree that there are three buildings on the subject site that are identified as being subject to the TLPI, being 14, 16 and 18 Reid Street, Woolloongabba.  I will refer to the terms of the TLPI later in these reasons.  The Further Amended Notice of Appeal dated 15 August 2013 asserts that the proposed development conflicts with, or has potential to conflict with, the TLPI. 

1. In addition, a further ground was added to the effect that it was appropriate for the Court to give weight to the provision of the Council’s Draft City Plan which was on public display between 9 May and 30 July 2013, particularly to the extent that those provisions may provide an indication of the Council’s future planning intent for the area covered by the Neighbourhood Plan.

1. The issues in dispute can be summarised as follows:

(a)        The appellant asserts conflict with provisions of the Planning Scheme in respect of:

(i)         height and bulk of the proposed residential towers;

(ii)       location of buildings and site layout;

(iii)      intended streetscape character and amenity, having regard to:

A.        intended building form and design;

B.         the intended character of Hubert Street; and

C.         provisions relating to pre-1900 buildings;

(iv)       adverse impacts on residential amenity as a result of:

A.        inadequate setback of the proposed towers;

B.         the location and height of the podium;

C.         overshadowing;

D.        overlooking and consequent impacts on privacy; and

E.         inadequate landscape buffering;

(v)        failure to provide a mix of commercial and residential uses in dwelling choice; and

(vi)       failure to provide an east-west traffic connection through the site.

1. The appellant also asserts that Trentham has failed to establish that there will be no adverse impacts on the street and road network, and that onsite traffic arrangements are unacceptable, but acknowledges these are not grounds for refusal and could be addressed by conditions. 

1. The appellant also wishes to be heard, in the event that his appeal is dismissed, on these conditions, particularly the provision of a Construction Management Plan, staging plans, and further landscape plans to address issues relating to screening and visual amenity impacts.  This issue will be dealt with later in my reasons.

1. Trentham’s primary position is that there is no conflict with the Planning Scheme; in the alternative it asserts that any conflict can be overcome by grounds.  Council is strongly supportive of Trentham’s position.

The decision making framework

1. As the development application was lodged on 5 May 2011, it is the Sustainable Planning Act 2009 (the SPA) that sets the statutory assessment regime against which the development application is to be assessed.  The appeal is by way hearing anew, and the Court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate:  s 495(1), (2)(a) of the SPA.  Trentham has the onus of establishing that the appeal should be dismissed:  s 493(2) of the SPA. 

1. The court must assess the development application in accordance with s 314 of the SPA which relevantly provides:

“314 Impact assessment—generally

(1) This section applies to any part of the application requiring impact assessment.

(2) The assessment manager must assess the part of the application against each of the following matters or things to the extent the matter or thing is relevant to the development—

…

(b) the regional plan for a designated region, to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme;

…

(e) a temporary local planning instrument;

…

(g) a planning scheme;

…

(3) In addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess the part of the application having regard to the following—

(a)         the common material;

(b) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;

(c)         any referral agency’s response for the application.”

1. The Court must decide the development application in accordance with ss 324 and 326 of the SPA.  The Court’s decision must not conflict with a relevant instrument (which relevantly in s 326(2) refers back to s 314(2)), unless there are sufficient grounds to justify the decision, despite the conflict.  “Grounds” are defined in Schedule 3 of the SPA as “matters of public interest”, and do “not include the personal circumstances of an applicant, owner or interested party”.  Although decided in relation to a similarly worded provision in the now repealed Local Government (Planning and Environment) Act 1990, the so termed designated three step process mandated by the Court of Appeal in Weightman v Gold Coast City Council [2003] 2 Qd. R 441 has been affirmed recently in Lockyer Valley Regional Council v Westlink Pty Ltd (2012) 191 LGERA 452 although as the Court noted the concept of “grounds” has a wider meaning than “planning grounds” which was the term used in the earlier legislation.

Construction of Planning Schemes

1. Construction of relevant instruments, and in this case predominantly the Neighbourhood Plan, is at the heart of the dispute in this case, so it is timely to restate principles of statutory construction applicable to Planning Schemes which are applicable in this case.  In setting out these principles, I have omitted citations as these are set out in final submissions:  see para [48] of Mr Houston’s submission:

(a)        They should be construed broadly rather than pedantically or narrowly, and with a sensible, practical approach;

(b)        They should be construed as a whole;

(c)        They should be construed in a way which best achieves the apparent purpose and objects;

(d)        As the Planning Scheme was prepared under the now repealed Integrated Planning Act (the IPA), recognition should be given to the proscription in that Act against prohibiting development;

(e)        Although Planning Schemes have the force of law, they are not drawn with the precision of an Act of Parliament.

1. In this case, as I will demonstrate shortly, the Neighbourhood Plan is indeed not drawn with the precision of an Act of Parliament.  Even the appellant’s planner, Mr Gaskell, seemed to accept that there were real internal inconsistencies although it was only in his oral evidence in cross-examination that he seemed to reach this conclusion.  Where planning provisions are worded vaguely, or flexibly, and/or where there are no clear or definitive criteria by which the Court can determine whether there is conflict between a proposal and the Planning Scheme, a Court has great width in the decision making process:  Gracemere Surveys Pty Ltd v Peak Downs Shire Council (2009) 175 LGERA 126 at [30].

1. As Mr Job observed in his submission, much of the dispute in this appeal focussed upon Codes; particularly the Neighbourhood Plan Code  It is not a case where there are substantial factual disputes. 

1. The Codes in the Planning Scheme adopt a series of Performance Criteria and Acceptable Solutions.  Much of the dispute between the planners focussed on the Performance Criteria and Acceptable Solutions in the Neighbourhood Plan Code and in particular P4.1, which is set out below in these reasons.

1. It is well-established that in performance-based schemes such as this one, the Acceptable Solutions do not prescribe limits, or to put it another way, are not proscriptive of other solutions which may satisfy the outcomes contemplated by the Performance Criteria.  This approach to using Performance Criteria and Acceptable Solutions in Codes in Planning Schemes such as this Planning Scheme is recognised in Chapter 5.1.1.

1. In SDW Projects Pty Ltd v Gold Coast City Council [2007] Q.P.E.L.R. 24 at 30, in relation to a similar “performance based” structure, Rackemann DCJ noted:

“The Performance Criteria are generally outcome focussed, while the Acceptable Solutions indicate a ‘desirable’ way to ‘ensure’ compliance. The Acceptable Solutions however, are not the only solutions.  Performance Criteria generally ought not be interpreted as requiring adoption of the Acceptable Solutions, 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.”

1. His Honour made statements of principle to similar effect in Main Beach Progress Association Inc v Gold Coast City Council & Anor [2008] Q.P.E.L.R. 675 and in K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] Q.P.E.L.R. 406 at 410.

1. Trentham, and to a lesser extent Council, are critical of the approach of Mr Gaskell (town planner for the appellant) on the basis that he has adopted a pedantic, impractical approach to discerning the meaning of relevant parts of the Neighbourhood Plan, and has approached compliance with the Acceptable Solutions in the Neighbourhood Plan as being of much greater importance than compliance with Performance Criteria .

Some preliminary issues

1. As the appeal progressed, a number of disputed issues assumed less importance in the appellant’s argument as identified by Mr Houston in his final submissions.  I will deal with some of those issues first. 

A.  The TLPI

1. The TLPI commenced on 8 May 2013 and will cease to have effect on 7 May 2014.  The planners correctly agreed at their second joint meeting, that the TLPI is designed to protect residential buildings constructed prior to 1911, which would include three buildings on the site at 14, 16 and 18 Reid Street. 

1. The purpose of the TLPI is stated to be to “provide for the assessment of the removal or demolition of any residential building constructed prior to 1911”.  It is stated that that purpose will be achieved through two overall outcomes:

“     •     Development ensures the residential buildings constructed

prior to 1911 are protected and retained.

•Development ensures that the removal of demolition of

residential buildings constructed prior to 1911 only occurs

when they are structurally unsound or not capable of being

made structurally sound.”

1. The TLPI goes on to state that it applies to assessing building work involving the removal or demolition of residential buildings constructed prior to 1911 in relation to particular identified lots.  The three houses on Reid Street proposed to be removed as part of this development fall within the scope of the TLPI.  Importantly, however, the TLPI goes on to state that it “does not apply to residential buildings on land to which a current approval applies which by the nature of such approval permits the demolition of residential building/s to which the TLPI would otherwise apply”. 

1. On a proper construction of the TLPI, it does not apply to the subject development as there is a Council “approval” in place which contemplates the removal of the subject houses.  While that approval is yet to take effect because of this appeal, there is nonetheless an approval: s 339 of the SPA.

1. As Mr Job notes in his submission the reference to “current approval” in the TLPI does not require that the approval has taken effect. 

1. Mr Houston concedes that the TLPI should not be given such weight as to effectively determine the appeal against Trentham.

1. On a proper construction of the TLPI and having regard to the uncontested evidence of Mr McDonald (heritage expert for Trentham), I am satisfied that the TLPI should be given no weight in the assessment process. 

B.  Heritage Issues

1. This issue relates to a disputed issue dealing with the same three buildings which on the basis of Mr McDonald’s research were all built prior to 1900.  The issue raised by the appellant but not actually pursued, was that demolition or removal of these three buildings conflicts with Performance Criteria P1 in the Residential Design – High Density Code.  P1 is certainly in mandatory terms:

“Buildings built prior to 1900 must be retained (whether in a Demolition Control Precinct or not).”

1. This highly proscriptive approach is not supported by the Purpose Provisions of the Code and, as Mr McDonald noted, is unusual in the Planning Scheme as it (inconsistently with the Scheme read as a whole) does not permit of a performance based assessment.  As he points out, the Demolition Code in the Planning Scheme which, in performance criteria P7 deals specifically with pre 1900 buildings in the context of the Code’s overall purpose to control building removal and development, allows for the performance based test of the building’s structural soundness to be considered. 

1. I agree with Mr McDonald that on a proper reading of the Code, and particularly its stated objects, no planning conflict with the Code can be said to arise.  There was never any issue about impacts on the heritage listed Chalk Hotel; nor is any argument advanced that there is conflict with the Planning Scheme in relation to the other heritage places on an adjacent site (see Fig 1, p 3, Ex 6).

C.  The height of towers 2 and 3

1. This is a preliminary issue of fact.  As noted earlier, Council approved the development on the basis that tower 2 was 18 storeys and tower 3 was 12 storeys.  Based on Mr Gaskell’s evidence, the appellant’s position at the start of the appeal, was that tower 2 was in fact 20 storeys and tower 3, 13 storeys.  The relevant definitions in City Plan are as follows:

“‘Storey’ is defined as being:
‘a space within a building which is situated between one 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 meeting room, or

·A bathroom, shower room, laundry, water closet or other sanitary compartment;

·A combination of the above.

For the purposes of this definition a mezzanine is a storey’.”

1. “Ground level” is defined in the Planning Scheme to mean:

“… the level of the land at the time the original estate was subdivided, and the roads through the estate created, as determined by a licensed cadastral surveyor using best evidence.
Best evidence should be based on the most appropriate of the following sources:

-‘as constructed’ plans lodged with the Council at the time of subdivision and held by Council’s planning custodian; or

-surveyed spot levels from Council’s sewer maps (BCC Department of Works Detailed Plan).

…”

1. Quite late in the piece, Trentham obtained and supplied to the other parties a copy of the 1923 sewerage plans for the area (pp 55-56, Ex 1) which do show that the natural ground level for the land abutting Hubert Street on which tower 2 is located, was substantially higher in 1923 than that which can be seen on the site today.  On inspection it was readily apparent that that part of the site that addresses Hubert Street has been the subject of substantial excavation to create what is the apparent ground level today.  I agree with Trentham that when these facts are taken into account, it is apparent that the lower two levels marked as B1 and B2 on the plans for tower 2 are in fact below the ground level as that term is defined in the Planning Scheme.

1. Mr Gaskell asserts that tower 3 is 13 storeys, either because of the roof structures that are intended to cover services, or because a very small part of the level “Basement 2” appears to be above ground level in the plan.  The roof structure is clearly not “within a building” and does not satisfy the definition of “storey” in the Planning Scheme.  I also agree that the definition of “storey” cannot be construed to cover a small gap or void that potentially exists between ground level and the top of Basement 2.

1. Mr Gaskell still appeared to defend his interpretation in cross-examination despite having access to the sewerage plans and revisiting the site.  I do not accept his evidence.  Mr Job supports what is the correct conclusion and that is that tower 2 on the plans is 18 storeys and tower 3 is 12 storeys.  Mr Houston does not contend otherwise in his final submission.

Mr Gaskell’s evidence

1. A spirited attack was made on Mr Gaskell’s credibility and reliability on the basis of an alleged lack of impartiality.  If made out, the suggestions would potentially undermine the integrity of the performance of his duty under the PEC rules.  If the Court concluded that he was not fully objective, this would seriously undermine the weight to be given to his opinion.

1. Late in cross-examination of Mr Gaskell, Mr Gore QC established a number of facts:

(a)        Until 2010 Mr Gaskell and his wife had lived since 1995 in Woolloongabba Hill which is part of the Neighbourhood Plan  area and which overlooks the site and from where most of the adverse submitters come from (see Ex 20);

(b)        Mr Gaskell’s wife is an equal shareholder in his town planning business;

(c)        His business operates from Catherine Street in Woolloongabba;

(d)        His wife made an adverse submission;

(e)        He gave his wife advice as to the contents of the submission;

(f)        Her submission at p 371 of Ex 20 can clearly be seen to be in very similar terms to the appellant’s submission at p 321.  In fact the last three paragraphs are identical;

(g)        He had informed the appellant’s solicitors that his wife was a submitter but had not disclosed that to anyone else.

1. It is not clear from the evidence whether he disclosed to the lawyers his role in assisting his wife to prepare her submission in relation to town planning issues.

1. He agreed with Mr Gore that it would have been prudent to disclose his wife’s involvement to the other parties.  It is not suggested that Mr Gaskell deliberately failed to disclose these details.  It would have been relatively simple to work out (as Mr Gore’s instructors did), that his wife was a submitter. 

1. The argument is that for these reasons, and for two other reasons, his evidence should be given little weight as he has not been objective and he has in effect become wedded inappropriately to his client’s case.

1. The argument is articulated as follows in Trentham’s closing submission:

“101.First, Mr Gaskell did not in truth present as a balanced and objective witness.  On the contrary he adopted positions which were at the extreme end of various spectra in the case:

(a)Although the height of the towers (particularly towers 1 and 2) as described in the Council’s approval was to be a major issue in any event, he sought to portray two of the towers as being even higher (in number of storeys); for one of the towers (tower 2) he maintained that position in oral evidence, despite the assistance the developer’s case obviously got from the 1923 sewerage plans, and the City Plan definitions of ‘storey’ and ‘ground level’; for the other tower (tower 3) he relied only upon a void in basement 1, but there was no reference to that consideration in the first JER (only reference to the prospect that the roof structures on tower 3 may comprise an additional storey);

(b) He asserted conflict with nearly every provision in the Woolloongabba Centre Neighbourhood Plan that had any possible application to the development, as well as conflict with many provisions in three other elements of City Plan;

(c) He maintained that two substantial planning instruments (the WUDA Development Scheme and the Kangaroo Point South Neighbourhood Plan) were irrelevant to an assessment of the subject application;

(d) Despite the long (if anything, overly long) list of ‘grounds’ identified by others, Mr Gaskell was at pains seek to prove that not one of them qualified as a sufficient ground;

(e) Although the other two planners identified, and were influenced by, inconsistencies and poor drafting appearing in the Woolloongabba Centre Neighbourhood Plan, Mr Gaskell had remained silent on these issues in his written reporting, and his views about the matter started to emerge in his oral evidence.

102.The further reason why the concern is heightened is the fact that there were two other experienced planners who gave evidence contrary to that of Mr Gaskell on the very wide range of technical issues that Mr Gaskell had raised in opposition to the development.  For the sake of emphasis, the position would be different if Mr Gaskell’s evidence was supported by another expert, or not contradicted by another expert, or if there were large areas of common ground between the various experts; rather, the fact that Mr Gaskell’s evidence is contrary to the weight of the evidence (using the traditional expression) tends to reinforce the possibility that he has not approached the issues in the appeal in a truly independent way.”

1. Firstly, I agree with Mr Gaskell that it would have been prudent to disclose to the other parties the fact that his wife was a submitter.  He should also have disclosed that he played some part in advising her as to the contents of the submission.  It would have also been prudent for the appellant’s solicitors to notify the other parties of their knowledge of these matters.

1. Mr Gaskell certainly presented as a witness with strong opinions to the effect that the proposal should not be approved.  It is a very big step to then say, therefore, because of the personal matters, he has not been impartial.  The fact that two other planners disagree with most of his evidence is not supportive of Trentham’s argument.  It is very common for town planners to disagree strongly about what particular Planning Scheme provisions mean, or which apply.  It does not follow that they are biased.  It is often the case (as is the case here) that the critical assessment instrument, the Neighbourhood Plan, is pregnant with inconsistencies and anomalies.

1. In his evidence Mr Gaskell did not present in any way as a zealot; nor did he exhibit frustration and irritation such as that exhibited by Mr Kay when being gently cross-examined by Mr Houston.

1. I am not prepared to find that his evidence lacks objectivity.  As will be seen from my reasons following, I disagree with many of his opinions, but surely that occurs in most appeals of this kind. 

The Neighbourhood Plan

1. It is important to approach the Neighbourhood Plan on the understanding that as this proposal is Impact Assessable it is to be assessed against the whole of the Planning Scheme to the extent to which other provisions are relevant.

1. Trentham asserts that the Neighbourhood Plan contains a number of significant anomalies and inconsistencies, a number of which have been repeated in the Draft City Plan to which reference will later be made.  The centrality of the Neighbourhood Plan  to the assessment process here is demonstrated clearly by both references in the Planning Scheme generally to Local Plans (which are synonymous with Neighbourhood Plans), and in the Introduction to the Neighbourhood Plan  itself.

1. In the Introduction, after referring to the Plan containing “additional planning requirements” it is stated:

“Where it (i.e. the Neighbourhood Plan) conflicts with the requirements of the City Plan (it) prevails.”

1. This predominance is reflected in similar terminology in S 1-1 of the Planning Scheme – using a Local Plan in the introduction to the Local Plan Provisions in Ch 4, p 3 of the Planning Scheme.

1. This does not mean that if on a proper construction of the Planning Scheme as a whole, consistent statements in the South East Regional Plan (SERP), the PDA (to the extent to which it is relevant), and the higher order provisions of the Planning Scheme itself are not relevant if (as one would expect) there can be found a logical connection between Planning Intent in the Neighbourhood Plan and these other instruments.  This would follow if it was found that these higher order provisions do not conflict with the Neighbourhood Plan itself, and if, as Trentham contends, the Neighbourhood Plan contains relevant drafting anomalies.  It is not necessary for me to set out all these higher order provisions.  They are not contentious and were referred to by Mr Gore in his opening.  The Planning Intents are necessarily couched in general terms but a number of themes are replicated.  Brisbane’s population growth with required increased employment and residential growth will be achieved through renewal in areas in and around the CBD is an important focus.  Emphasis is also placed on High Density Residential Development being located in Major Centres (MP2) “to capitalise on Public Transport Infrastructure Developments”. 

1. The Scheme promulgated for the PDA describes it as “a highly visible inner city location only two kilometres from the CBD”.  It refers to it being a gateway site into the city connecting Kangaroo Point South and Woolloongabba communities.  If, as a matter of proper construction, the Neighbourhood Plan can be read as connecting with, and complimenting such statements of planning intent, then it would be difficult to regard it as irrelevant, as Mr Gaskell does in his approach.

1. Special reference is made in the Planning Scheme to Local Plans for older suburbs such as Woolloongabba at p 7, Ch 4, Vol 1 of the Planning Scheme. 

1. Because of its centrality the assessment process, I will set out those parts of the Neighbourhood Plan that are relevant: