Gorman v Brisbane City Council

[2003] QPEC 35

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Gorman & Ors v Brisbane City Council & Anor [2003] QPEC 035
PARTIES:	BARBARA ANN GORMAN, PETER ERNEST GORMAN, ANGELA JANE ROBINSON, CHRISTINA JOSEPHINA BELL, GRAHAM LEONARD BELL, LYNETTE BOWNMAN, RICHARD ALAN BOWMAN, JAMES BARRY RYAN and ELIZABETH ANN RYAN Appellants v BRISBANE CITY COUNCIL Respondent CBD PROPERTIES (AUST) PTY LTD Co-Respondent
FILE NO/S:	4407 of 2002
DIVISION:	Planning and Environment Court
PROCEEDING:	Submitter appeal
ORIGINATING COURT:	Brisbane Planning and Environment Court
DELIVERED ON:	31 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	2, 3 and 4 June 2003
JUDGE:	Quirk DCJ
ORDER:	The appeal must be dismissed
CATCHWORDS:	BUILDING CONTROL AND TOWN PLANNING – town planning – submitter appeal – appeal against council’s approval for a material change of use – compliance with relevant code/s - traffic - over-development - character
COUNSEL:	Mr J Haydon for the appellants Mr B Job for the respondent Mr R Litster for the co-respondent
SOLICITORS:	Gormans Lawyers for the appellants Brisbane City Legal Practice for the respondent MacDermotts for the Co-respondent

1. This appeal by adverse-submitters is against the Council’s approval of an application for a material change of use of land at Lutwyche.  The subject land lies at the end of Colton Avenue, which is a cul-de-sac.  The land’s rear boundary adjoins the Kedron Brook reserve.

1. The proposal is for a multi-unit dwelling comprising four units.  The plan of layout and design of the project is found in material placed before the Court.  The appellants made their position clear.  They accept that under the provisions of City Plan a proposed development of this nature could be anticipated but a four unit proposal was seen as over-development of the site and unacceptably out of character with what exists in the area.  If the development was reduced to three units and suitably conditioned, their opposition would be withdrawn.

1. The proposal is one which is impact assessable. Assessment of the application is one which must be conducted under the relevant provisions of the Integrated Planning Act and City Plan, a planning scheme prepared under that Act. Section 3.5.14(2) of the Integrated Planning Act provides:

“If the application is for development in a Planning Scheme area, the Assessment Manager’s decision must not:

(a)         Compromise the achievement of the desired environmental outcomes for the Planning Scheme area; or

(b)         Conflict with the Planning Scheme unless there are sufficient planning grounds to justify the decision.”

1. There was some discussion regarding the use of the verbs “compromise” and “conflict”. I see no serious practical difficulties in that regard. The explanatory notes to the Integrated Planning Act suggest that compromise should be read to mean “threaten”.  “Conflict” has a meaning which is not difficult to understand. 

1. City Plan is a carefully structured planning instrument in which desired environment outcomes (DEO’s) are stated and form the basis from which other provisions of the Scheme flow.  Elements of the city are identified and one of these is “residential neighbourhood”.  The subject land is found in a residential neighbourhood. City Plan divides residential neighbourhoods into five differing residential areas.  The subject land is included in a “Low-Medium Density Area”. 

1. In such an area multi-unit buildings are subject to impact assessment but are regarded as being “generally appropriate”.  The intent of the Low-Medium Density Area (s.5.4.1) recognises that it will contain a mix of houses up to two storeys and two and three story multi-unit dwellings.  It is noted that land in such an area is generally located in those parts of the city that are close to public transport networks or centres.  It is anticipated that, during the life of City Plan, a relatively small proportion of the Low-Medium Density Residential Area will be redeveloped for multi-unit residential.  Accordingly, new development must therefore be designed to co-exist comfortably with neighbouring houses.  In this context measures controlling gross floor area and the like are in place.

1. The relevant Level of Assessment table is found at s.5.2.3 and indicates that the proposal should comply with the Residential Design and Low-Density Character and Low-Medium Density Code.  How these codes are to be applied is set out s.1.1 of Chapter 5.  It is provided that, for appropriate impact assessment, a proposal that complies with all acceptable solutions will be approved subject to:

(a)            Being able to be conditioned to mitigate any potential adverse impact;

(b)            Meeting the Code’s purpose;

(c)            Meeting the Plan’s DEO’s.

1. The relevant DEO’s are set out in s.5.4.2 as follows:

“1.      Low-medium density living environments comprise houses, among multi-unit development at a house-compatible scale, predominantly of no more than two storeys.  Higher densities and three 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.

3.          Natural features such as creeks, gullies, waterways and vegetation are retained where they add to the character and amenity of the area.

4.          In Demolition Control Precincts pre-1946 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.”

1. DEOs 3 and 4 have no real application to this case.  The proposal will have minimal impact upon the character and amenity of the Kedron Brook reserve and the subject land is not in a Demolition Control Precinct. 

1. It cannot be seriously suggested that the proposal is in conflict with DEO 1.  The subject land is near public transport (Lutwyche Road being an important northern artery) and the Lutwyche shopping village, a facility of regional significance, is nearby.  The appellant’s Town Planning Consultant acknowledged that the only part of the development which comprises more than two storeys (Unit 1) was of no concern in terms of impact upon the area’s character.

1. Whether the proposal constitutes “multi-unit development at a house-compatible scale” is a matter of judgment.  Both Mr Schomburgk (Consultant to the co-respondent) and Mr Kay (the council’s Consulting Town Planner), each of whom are experienced planners, were firmly of the view that it was and I accept their assessments.  As was pointed out in evidence, compatibility is not equivalent to replication and although the areas character is presently dominated by Low-Density Residential development, that is clearly not a position that City Plan intends to maintain.

1. As to DEO 2, there was no plausible suggestion that any conflict arose between the proposal and those objectives.  The issues of safety, privacy, quiet and comfort have been respected and the development has been appropriately designed.  It will achieve a mix of housing types. 

1. The codes relevant to the assessment of this application are part of Chapter 5.  The performance criteria and acceptable solutions are dealt with in s.4.3. Of the identified acceptable solutions, concerns existed in respect of only three matters namely:

·     Minimum street frontage (Part A, A1.3)

·     Frontage setback (A 4.1)

·     Rear setback (A 13.3)

1. In accordance with City Plan it is therefore necessary to ask whether, in these respects, the proposal represents an “alternative solution” which satisfies the relevant performance criteria.  As was explained by Messrs Schomburgk and Kay whose evidence I accept, in this respect it is relevant to take account of the somewhat irregular shape of the allotment, it’s position at the head of a cul-de-sac and it’s common boundary with the Kedron Brook reserve.  I accept their assessment that the proposal offers an appropriate “alternative solution” which satisfies the relevant performance criteria.

1. Some issues were raised in respect of the Transport Access, Parking and Servicing Code.  The appellate’s consultant Mr Hulbert raised concerns regarding the width and gradient of the driveway and the manoeuvring spaces out of unit 4’s garage and  in-between units 1 and 3.  Mr Hulbert, in drawing attention to these matters, did not appear to go so far as to say that they amounted to non-compliance with the performance criteria of the Code.  Mr Williams, who was consulted by the co-respondent, and gave evidence which I accept, was of the opinion that these problems were not unusual in a development of this kind.  For reasons which he explained in his evidence and in his report there were insufficient traffic related grounds to refuse the application and the proposal complied sufficiently with the relevant codes to traffic access, parking and servicing.  It was noted that the number of spaces provided by the proposal exceeded that required by the code. 

1. An issue also seemed to be raised regarding the Landscaping Code. As this code contemplates, the council imposed a condition of approval requiring the submission of a detailed landscaping plan for approval prior to works commencing on the site.  Before me, the co-respondent submitted plans which demonstrated satisfactory compliance with the condition and with the Code.  In that respect evidence was given by Ms Neale who confirmed the landscaping proposed for the site complied in all respects with the purpose, performance criteria and acceptable solutions.  In that respect her evidence was not seriously challenged.

1. In the appellant’s case an attempt was made to demonstrate inconsistency with parts of City Plan by selectively choosing passages that were of a wide application and suggesting that the proposal did not comply with these general objectives.  That approach was, in my view, quite fallacious in that it ignored the manner in which the City Plan is framed.  The Codes for the particular areas of the City are City Plan’s derivative from those statements of general application.  Where, as in this case, the Codes have been sufficiently respected, it is unrealistic to suggest that it would have been better to achieve the generally applicable objectives in another way.  This would add an element of confusion to the community’s expectations that would be quite inappropriate.

1. A number of local residents gave evidence and expressed opposition to the proposal on the basis that it was over-development and unacceptably out of the character with that which prevailed in the locality namely an area of low-density single unit dwellings which are generally well kept and attractively land-scaped.  As I have already stated, the maintenance of such a character exclusively is not something anticipated by City Plan.  While one can understand the views of these residents, the reasonableness of their expectations must be judged by reference to the planning controls in place.  On the whole of the evidence I am satisfied that the proposal is sufficiently compliant with those controls to warrant approval.

1. Accordingly, I find that the onus of showing that the application is one which should be approved has been discharged and the appeal must be dismissed.  Since the council’s decision some minor modifications have been made to the proposal and these are reflected in Exhibit 8.  The order disposing of the appeal should indicate this.