George Turner and Phillip Usher Constructions P/L v Brisbane City Council

[2000] QPEC 46

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	George Turner and Phillip Usher Constructions Pty Ltd v. Brisbane City Council & Anor [2000] QPE 046
PARTIES:	George Turner and Phillip Usher Constructions Pty Ltd (ACN 011 008101)  Appellant And Brisbane City Council  Respondent And Michael Leach and Others                   Second Respondent
FILE NO/S:	386 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING COURT:	Brisbane
DELIVERED ON:	22nd August 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Judge Quirk
ORDER:
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This appeal is against the respondent's refusal of an application made in respect of a relatively large undeveloped area of land at Highgate Hill.  The site is vacant except for a fibro cottage in a poor state of repair located on its western side.  The site is a total area of 1.897 hectares and has frontage to Brighton Street to the west and a short frontage street to Derby Street and Beaconsfield Street to the east.  The land is included in the residential B zone and in a residential development area use RDA - R4.

1. The land slopes deeply towards drainage paths the principal one of which crosses the site from north-east to south-west and reaches the Brisbane River which is about 200 metres to the south.  It is fairly heavily vegetated although a good deal of this involves weed infestation.  These matters were dealt with in the evidence of those who considered the environmental implications of the proposal.

1. The council's refusal that gave rise to the appeal was of an application that was made up of 3 elements which were; -

   (i)         the removal of the existing fibro cottage

   (ii)       the reconfiguration of the land into 40 lots

   (iii)      development approval for detached housing on the new allotments.

2. Details of this proposal can be seen from the material before the court although it has now been overtaken by further progress in an effort to achieve a satisfactory planning result. 

1. The council regarded the original proposal as overdevelopment of the site.  Mr Veal, an experienced town planner whom the council consulted in the matter, gave his assessment of it in his written report which was Exhibit 26 before the court.  He pointed out that the major planning objections to the proposal were; 

§  "Excessive density in site coverage of the proposal when compared to the established character of the area

§  The impact of the visual character of the area in particular the visual amenity currently enjoyed by the adjoining residents overlooking the site."

1. In an effort to meet such concerns, a number of suggested reductions in the density of the proposed development have been put forward.  In the end the proposal that the council was prepared to accept as a satisfactory planning outcome involved a reduction in the number of allotments to 29.

1. In a supplementary report (Exhibit 27) Mr Veal had certain remaining reservations about a proposal which had reduced the number of allotments to 31.  These related mainly to the provision of public open space, particularly in the more visually sensitive part of the site (the south western corner) and the utility of allotments fronting Derby Street.  He was also concerned to facilitate longer term development of the area by provision of through site pedestrian linkages.  His concerns have been met in the final modification of the layout which can be seen in Exhibit 32.  Mr Veal, in evidence given to the court, expressed his satisfaction with this layout. 

1. The co-respondents to the appeal who reside locally, continued in their opposition to the proposal even in its amended form, although it was conceded that Exhibit 32 represented a marked improvement upon the original proposal.  The issues in dispute were reduce substantially but there were a number of matters which the co-respondent asked the court to consider as sufficient reasons for rejecting the proposal.  For convenience these matters were set out in Exhibit 28.

1. The principle concern of the co-respondents was amenity impact.  It was contended that the proposal would provide a form of development that was out of character with that of existing development in the area.  In this context particular features of the proposal pointed to were -

"(i)        front set backs;

(ii)rear set backs;

(iii)lack of gabled or hipped roofing;

(iv)single architectural genre;

(v)monotony of frontage width;

(vi)inability to plant between the houses.”

1. In relation to town planning issues, in addition to the evidence of Mr Veal I had the advantage of the opinions of Mr Vann (consulted by the appellants) and Mr Baker who was engaged by the co-respondents.  The design of the housing intended to be part of the proposal was explained by Mr Hayes, an architect with extensive experience in inner city re-development. 

1. It is true that the Strategic Plan, in its generally applicable objectives, places a good deal of importance on the maintenance of appropriate visual amenity and character, but it has to be accepted that the Town Plan has provided fairly specifically for development of the kind here proposed in areas zoned as this is.  Section 7.3.1 of the town plan makes it clear that in areas included in the Residential B zone,

"a variety of residential uses ranging from a relatively low intensity to a quite high intensity"

is anticipated.

In the RDA-4, a:

"a variety of low to medium density housing types"

is intended to be developed. 

The proposal is consistent with those intents.

1. Because of the lot size of the majority of the allotments the development is a "small lot" subdivision.  It is true that 3 of the 29 lots are not small lots and only 11 of the 29 lots require impact assessment.  The import of these exceptions is not great in that, as the case was presented, the development was put forward as an entity considered as such. 

1. Planning policy 7.29 is relevant as it deals in some details with small lot housing development and the erection of houses following demolition.  That relevance is underlined by s.24.3A which provides that the component of the application which is "subject to public comment" may be refused only if;

"the application does not comply with the policy and its approval would compromise the achievement of the intent of the zone".

In a case where it is demonstrated that a particular proposal conforms with the requirements of such a policy it would, in my view, be very difficult to reject it in favour of some other preferred approach to the protection of an area's visual amenity and character.

1. I am satisfied on the evidence given that, in the design of the proposal, appropriate attention was given to this policy and the result achieved is consistent with it.  The design elements were fully explained in the evidence of Mr Hayes and, even to an untrained eye, a consistency with the illustrations in the "Design Code for Houses in the Heritage and Character Building areas" is apparent. 

1. Mr Baker thought that the proposals showed an inappropriate leaning towards "contemporary architectural styles" at the expense of "traditional vernacular styles" and was not sufficiently complimentary to the traditional housing found in this part of the city.  While Mr Baker is entitled to his opinion on these matters, I found his criticisms a little harsh in view of the policy’s calling for ;

"emphasis on contemporary design solutions that embody principles of good climatic design and street address". 

As he explained, Mr Hayes had these matters in mind when designing the proposal.

1. Aside from the matters of set back, particulars given of  the proposal as being "out of character" are not directly supported by the fairly detailed requirements of the policy.  The "set backs" question was fully explored in evidence and, in my view of it, satisfactorily dealt with by Mr Hayes.

1. As to complaints regarding the density of the proposal, the land zoning has to be accepted.  No particular density provisions are contained in the policy and furthermore, a small lot subdivision will rarely achieve the residential density level of other forms of development that might be anticipated in the Residential B zone.  As was demonstrated in the appellant's evidence, the proposal's density is by no means inconsistent with that of existing development in the general area.  In respect of the impact upon the area's character, its topography gives the subject land a somewhat "self-contained" quality and it has to be accepted that the impact of what is developed on the land upon the street scapes in the surrounding areas will be correspondingly tempered.

1. Some loss of vegetation will no doubt occur and this was a matter of concern to individual co-respondents whose evidence was received by the court.  Those who have lived for sometime near a large undeveloped area are inevitably and understandably disappointed when development occurs and flora and fauna are lost.

1. However, expectations regarding the future of undeveloped areas must be based on the provisions of the Town Plan.  I believe that Mr Veal was correct in his view that the compromise which has produced a 29 lot development and a relatively substantial area of parkland in the more visually sensitive part of the site is a satisfactory planning result.

1. Utility of some allotments and the adequacy of private open space was the subject of discussion but in the end I preferred the view of Mr Hayes on the matter.  Steep slopes will occur and this will influence the extent to which allotments can be used for private recreation.  Whatever difficulties exist in terms of slope will be apparent to purchasers and those who chose to live here will do so trading off those limitations against other attractions that the area has.  That there are those content to reside on steeply sloping land is apparent with other residential development that has occurred in the Highgate Hill area. 

1. The adequacy of visitor parking was examined by Mr Brammeld who expressed satisfaction with it.  His view that the proposal "easily satisfies" the policy's objectives of "sufficient safe and convenient" parking and access for residents and visitors.   

1. The matter of the placing of fill on the land which had concerned some of the co-respondents was adequately dealt with in engineering evidence.  Access to proposed allotments 27 and 28 were examined and it was accepted that appropriate reconfiguration of the Derby Street carriageway would satisfactorily deal with any problems of access to those allotments. 

1. On the whole of the evidence I am satisfied that the onus of showing that a development in line with Exhibit 32 should be approved has been discharged.  The appeal will accordingly be allowed but, at this stage, adjourned to enable appropriate conditions for approval to be settled.