Green v Brisbane City Council
[2004] QPEC 51
•17 September 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Green v Brisbane City Council & Anor [2004] QPEC 051
PARTIES:
KEVIN GREEN
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
STORY BRIDGE ADVENTURES PTY LTD
Co-RespondentFILE NO/S:
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
DELIVERED ON:
17 September 2004
DELIVERED AT:
Brisbane
HEARING DATE:
10-13 August 2004; written submissions 1 September 2004
JUDGE:
Skoien SJDC
ORDER:
Appeal dismissed.
CATCHWORDS:
Story Bridge Climb; undefined use in City Plan; impact assessable, generally inappropriate; heritage values.
COUNSEL:
W. Cochrane for the appellant
T.N. Trotter for the respondentD. Gore QC for the co-respondent
SOLICITORS:
Williams R Wilson & Assoc. for the appellant
Brisbane City Council Legal Practice for the respondent
Deacons Lawyers for co-respondent
This is an appeal by Mr Green against a decision by the Brisbane City Council made on 1 March 2004 to approve an application by Story Bridge Adventures Pty Ltd (“SBA”) described as "Story Bridge Adventure Walk" and carpark on land located at 10 Wharf Street, Kangaroo Point. The land, the subject of the decision, is a combination of 25 separately described lots of land which together constitute all the land covered by the Story Bridge on the south side of the Brisbane River.
The Application
The proposal involves the facilities and support infrastructure to enable a walk or climb on the superstructure of the Story Bridge for tourists and Brisbane residents. It is convenient to consider the application in a number of stages.
(a)The ground facilities: involve car parking south of Wharf Street with provision for parking for a small bus to the north of Wharf Street. There is a lift north of Wharf Street (and on the western side of the bridge) to take people to the base facility. At the entry point to the lift is a foyer to provide sales of souvenirs and toilet facilities. Fire stairs are to be provided.
(b)The base facility: This is cylindrical in shape about 10 metres in diameter and about 70 metres in length. It is ground supported under the structure of the bridge but some hundreds of metres to the south of the river. It incorporates two interior levels to be used for briefing prospective climbers, storing of any possessions which might fall from them on the climb, change room as well as display areas for information of historical interest. The external finish of the base facility is intended to be of low reflectivity and of a colour which is compatible with the colour of the bridge. A simulated climb is undertaken to confirm the ability of each climber to proceed to the actual climb. They are breath tested to ensure sobriety and each is then harnessed to a continuous static line.
(c)After the base facility: They are then fitted with headset radio receivers and, in hours of darkness, low intensity headlights. They will also wear unobtrusive grey overalls. They then proceed from the base facility to the half-way house. The half-way house will use an existing room already under the bridge and will allow presentations to be made giving specific information to the groups undertaking the climb.
(d)The climb itself: The climbers will proceed on steps or walkups under the south western end of the bridge decking onto steps leading to the south western part of the bridge superstructure on which they will climb to the south western apex where there will be a viewing platform. They will then proceed north along the western top chord of the bridge superstructure to a new transverse walking deck with is about half-way between the southern and northern apexes of the bridge. From there they will progress to the eastern top chord of the bridge structure and back to the southern apex, then to the half-way house, then back to the ground.
This bridge walk would constitute only one of three such facilities in the world, the others being in Auckland, New Zealand and on Sydney Harbour Bridge. SBA expects that in the first year of operation there will be some 35,000 climbers, an increase of about 10,000 for each of the next three years, then a growth of about 7.5% per year until at about year 14 a maximum of 150,000 climbers a year are to be received. Mr Graetz, SBA’s spokesman, gave evidence that SBA’s expectations do not extend beyond that figure.
Each group of climbers will number 12 with a maximum of three groups per hour. There is the potential for the climbs to function 24 hours a day but it is expected that the period from dawn to about 11 pm will contain the bulk of the climbers with dawn and dusk the most favoured times. The individual price for a climb will be (now) about $100. The entire time from arrival of a climber until departure is expected to be about three hours with, as I understand the evidence, about an hour on the superstructure of the bridge.
For Mr Green, Mr Cochrane of counsel has submitted that the number of climbers is likely to be far greater than Mr Graetz suggests. However I do not accept that. First, much of what was put to me depends on climbs occurring virtually round the clock and I do not think that such patronage is likely to occur. Second, it seems to me that a purely mathematical approach does not take into account the probabilities. Those probabilities include the fact that adverse weather (for example, heavy rain, electrical storms and extreme heat) will restrict numbers. So will such things as bridge maintenance and established events such as Riverfest. Then there is the fact that the price of a climb is probably beyond the pocket of many people, and the fact that the population of Brisbane (tourists included) is not very big and many people simply would not want to do it. While SBA would no doubt be delighted to have sufficient potential climbers to fill every group for every hour of the day I cannot accept that such a situation will occur.
Mr Cochrane emphasised in his submissions that his client did not oppose the concept of the bridge climb itself but was of the view that the base facility ought to be on the ground rather than elevated. A further suggested alternative was that it should be located under the northern approach to the bridge. I will refer later to the first alternative. As to the second there is no real evidence of the feasibility of locating the facilities at the northern end and anyway it is clear that the Court’s job is to decide whether the proposed development is appropriate on the site applied for, not whether a better one exists elsewhere. See eg SEAQ v Warwick CC 1971 24 LGRA 391, 394; Queensland Adult Deaf & Dumb Society v BCC 1972 26 LGRA 380, 386; Green v Moreton SC 1985 QPLR 328, 330; Castro v Douglas SC 1992 QPLR 146, 158; Barcoo Pty Ltd v Crows Nest SC 1987 QPLR 242, 247; Luke v Maroochy SC 2003 QPELR 447, 458[50]; Fogg “Land Development Law in Queensland” (1987) pp 160-161.
The Bridge
The Story Bridge, the design of which is attributed to JJC Bradfield, spans the Brisbane River and joins Fortitude Valley/New Farm to the north with the long peninsula of Kangaroo Point to the south. The part of the bridge which actually crosses the river and contains its familiar graceful outline (the “cross river spans”) is made up (starting from either end) of a steel cantilever span which rises to an apex, then a descending steel cantilever span, then a central steel suspended span, then a steel cantilever span ascending to another apex, then a descending steel anchor span. This all provides a very pleasing symmetry. The northern steel anchor span commences at the steep northern bank of the river without the need for any approach ramp. However the bank on the south side is low lying and becomes higher only gradually as one proceeds to the south. So it was necessary to construct a long access ramp from the south. The total length of the cross river spans and access ramp is just over one kilometre, that of the cross river spans about 450 metres. About 100,000 vehicles use the bridge each day on the very busy Bradfield Highway.
The southern access ramp begins with concrete wall sides, then there is an exposed reinforced concrete beam and slab, then the road is supported by steel Warren trusses which raise the road gradually until the southern anchor span is reached. This southern approach ramp is about 550 metres long and rises to about 40 metres above ground level.
The Area
The site lies beneath the Story Bridge. The surrounding area is presently undergoing rapid multi-storey residential development. Most of the land in the vicinity is within the High Density Residential Area with a Multi-Purpose Centre in the Wharf Street area with a Park Area applying to Captain Burke Park (at the northern end of Kangaroo Point) as well as the western edge of the peninsula. It is in some ways anomalous that the land actually under the Story Bridge is included in the High Density Residential Area since development in accordance with this classification is effectively precluded by the bridge structure itself. The land is also included within the Kangaroo Point Peninsula Local Plan (“KPPLP”) in Precincts 1 and 3.
Main Street is the primary access road from the south serving this locality and park, and a network of local roads leads from it to provide access to the park, the river and residential development throughout the area. The eastern side of Main Street, between the street and the area under the Bradfield Highway, is dominated by non-residential uses including the Story Bridge Hotel (between Rotherham Street and Baildon Street), offices and restaurants (between Baildon and Wharf Street), and other commercial/industry buildings including the Radio 4EB facility, located north of Wharf Street. Some further commercial/industry type uses also exist west of Main Street between Holman Street and Wicklow Street, close to Captain Burke Park. East of Main Street, Holman Street, Wharf Street and Baildon Street lead to dead-ends but serve extensive areas of residential development (including the Dockside development). The eastern end of Wharf Street also contains some office/commercial buildings.
The other important land use in the vicinity is the property known as Yungaba, a historic building originally used as the main immigration point into Queensland, and which has been used for a variety of government and public purposes over recent decades. Yungaba is between Anderson Street and Wharf Street east of the Bradfield Highway. It is the site of a current development application for multi-unit dwelling development including the conversion of the existing buildings.
This part of Kangaroo Point is well known in Brisbane, and attracts people to enjoy its riverside atmosphere, the facilities offered by Captain Burke Park, riverside walk/cycle ways, entertainment venues such as the Story Bridge Hotel, the Jazz Club (located on the western river frontage south of Holman Street) and restaurants and cafes in the area and of course the views of the bridge, the river and the City centre.
In summary, the area is a high density, inner city, mixed use area, the character of which is dominated by the Story Bridge and Bradfield Highway.
The Issues
Whilst the issues raised in the Notice of Appeal are many, the appeal really revolved around the following matters:
(a) Residential Amenity;
(b) Cultural Heritage;
(c) Planning.
Amenity
This issue related to the possibility of unacceptable noise being created by climbers on the bridge and by traffic associated with those climbers, of visual nuisance, of on-street parking congestion and of loss of privacy.
Mr King, an acoustic engineer, gave evidence on behalf of SBA. He was the only expert called on the question of noise.
His evidence was that from each likely noise source there was an appreciable margin of safety. It must be remembered that this region has a high ambient noise level from the heavy flow of traffic on the bridge. Even though he conceded to Mr Cochrane that there could be occasions on which climbers or vehicles associated with them could produce noise which, in other localities, might be annoying it was clearly his belief that in this locality those occasions would probably be rare and, given the ambient noise level, quite unlikely to be annoying to anyone.
In any event, as a sensible precaution, Mr King has prepared a noise management plan which SBA is prepared to accept as a condition of any approval. I am satisfied that the proposal will not cause noise nuisance.
The visual nuisance issue was but lightly advanced. On any view the likelihood of nuisance being caused by the sight of climbers or any lights associated with them would be remote indeed.
On-street parking congestion related to the use of this facility was again not a serious issue. Two traffic engineers, Mr Beard and Mr Holland (whose evidence I accept on the point), considered that any overflow from the available car park would be likely to be infrequent and minor. Furthermore, they saw the use by SBA of an area, previously ear-marked for a car park as not constituting any serious loss of parking spaces for the area. In fact, they saw practical advantages in that it would discourage opportunistic inappropriate use of it by workers in the CBD for all-day parking.
The question of loss of privacy of nearby residents was dealt with carefully by Mr Butler, a consultant town planner. As it is, pedestrians cross the bridge along walkways on both the eastern and western sides and are closer to neighbouring residences than would be the climbers. The climbers would, of course, be generally on the move. Their interest would be much more likely to be city wide than directed to nearby buildings. I agree with Mr Butler that any loss of privacy in a relevant way would be minimal.
In the light of Mr Green’s attitude to the bridge climb activity itself (see para [6]) I must say that I found the issue of amenity to be rather a difficult one for him to argue, once the possibility of extreme numbers of climbers is dismissed.
Heritage Issues
Two experts in the field gave evidence, Mr Allom on behalf of SBA and Mr Veal on behalf of Mr Green. Of the two I prefer the evidence of Mr Allom whose methodology was, I considered, superior and who was able both in chief and in cross examination to make his points more clearly and cogently.
Both the Story Bridge and the nearby Yungaba are places of cultural heritage significance, both being listed in the Heritage Register established under the Queensland Heritage Act 1992. Both are identified as a “Heritage Place” in the City Plan (Schedule 1: Heritage Register Planning Scheme Policy).
As required under s.34 of the Heritage Act, SBA’s application to the Brisbane City Council was forwarded to the Queensland Heritage Council. The Brisbane City Council, of course, approved the application. As the Heritage Council did not decide the application within the statutorily specified time, its approval is deemed (s.34(4)).
I do not consider that the fact that the Heritage Council’s approval was “deemed” rather than actual, in some way weakens it. It cannot be supposed that the Heritage Council would have failed to realise the importance of any proposal which could conceivably threaten the heritage value of the Story Bridge, perhaps the most outstanding landmark of the city. Certainly there is nothing before me to suggest that the Heritage Council ignored the application. On the contrary it sought and received from SBA further information on the proposal. The implication, I think, is that it accepted the information as satisfactorily supporting the proposal.
Of course the fact that the Brisbane City Council and the Heritage Council have approved the proposal from the heritage aspect does not bind me nor absolve me of the duty to reach my own conclusion on the matter.
To begin with Yungaba, the proposal does not of course threaten the views of the river or the Story Bridge from Yungaba, nor conversely. It was however suggested that the proposal will degrade the view from Yungaba through the Story Bridge, taking the southern ramp as part of the bridge.
There was no satisfactory evidence of any such degradation or indeed that the proposal (in particular the base facility) will be visible from Yungaba. Indeed on my inspection of the site I rather doubted that it would. I conclude that the heritage value of Yungaba would not be degraded by the proposal.
On the question of the Story Bridge and any effect on its heritage value the emphasis was on the base facility and to some extent on the lift to it and the fire stairs. At once it must be recognised, as the tendered photos demonstrate and my inspection of the site confirmed, from many points of the compass it will be invisible because of the presence of vegetation or buildings. And it must also be recognised that the underside of the approach ramp is heavily cluttered by the presence of buildings. I seriously doubt that the presence of the base facility would be noted by many people unless they were looking for it. Its metal skin will be of an unobtrusive colour and will be unlikely to reflect light. As its architect Mr Robinson said, those who do see it would probably recognise it as being distinct from the bridge. I accept the value (as Mr Robinson and Mr Allom both said) of not trying to disguise it as part of the bridge but rather to create a sympathetic shape and, in this case, an interesting one. Nor would the lift nor the fire stairs particularly draw the attention of a viewer.
When considering to what extent the proposed structures would be visible it is legitimate to ask “What is the likely object of interest to the viewer?”.
In my opinion it is clearly the symmetrical structure of the cross river spans described in para [7] which would be the focal point, attracting the gaze because of its grace and symmetry. Indeed I wonder whether many viewers would even be aware that the supports of the southern ramp are constructed in the style of the bridge. It is likely that only those who are under that ramp or in its neighbourhood would think of it as part of the bridge. I would also think that northbound people who use the bridge would regard it as beginning at the point where the above-road superstructure begins.
That my lay view of “the bridge” is a widely held one is supported by almost all of the designs and logos for the bridge which are collected by Dr O’Connor in his seminal study of it, ex 8. See chapter 6, including the text. Dr O’Connor at p.53 of his study refers to the cross river spans as “The Main Spans”. His “Townscape Analysis” in chapter 5 emphasises that section of it as do the photographs (figures 34-39) which illustrate the chapter.
Cultural heritage is of course not just what the experts decide it is; it is also what sufficient numbers of interested lay people say it is. In the instance of the Story Bridge it is my view that many lay people would regard the cross river spans as the outstanding landmark which forms part of their cultural heritage. There will be some who recognise that the southern ramp is part of the bridge but to my mind they would most likely (while recognising its utility) regard it as merely a supporting feature, or an adjunct, to the landmark. As Mr Beard, who although a specialist traffic engineer is also a qualified and experienced civil engineer, graphically put it, the southern ramp could collapse without affecting the stability of the cross river spans. They, on the other hand, are an integral whole. But lest I am wrong in that assessment, I turn to the expert evidence of Mr Allom.
In fact Mr Allom agreed that both the Burra Charter and good conservation practice require that judgments be made on which parts of a culturally significant object are more and which are less significant and that there can be areas of greater and lesser importance. He agreed with me that vandalism to the arm of the Mona Lisa would be less culturally damaging than vandalism to her face. Furthermore he agreed that most people would regard the cross river spans as of greater townscape value than the approach ramp.
That is not to say that Mr Allom was prepared to ignore the section of the ramp where the base facility will be located and the lift and fire stairs will be. He emphasised that they were part of the culturally significant whole. But he considered that part of the whole to be of less importance and furthermore, he did not consider that the proposed structures offended that part’s heritage significance either by application of the lay approach or the accepted approach of experts.
Mr Allom spent some time giving his view of what the Burra Charter is and how it should be applied. He did so persuasively and I accept him on the point. As he said it lays down that the first thing that should be done is to determine the cultural importance of the subject, then to set policies in respect of it and then to reach a decision about what is proposed. Thus it defines a practice rather than a set of rules. All I need do is to record my acceptance of his evidence that, on the proper application of the Burra Charter and of the proper approach to heritage questions, the proposal is acceptable.
Thus not only from a lay point of view but also on the evidence of Mr Allom, I find that the proposal does not degrade the important cultural heritage significance of the Story Bridge.
City Plan
It was common ground that, considered as a whole, the proposal is not a defined use in the City Plan, with the consequence that it comes within the “impact assessable – generally inappropriate” category (City Plan, chapter 3, s.5.5.3). However that is not a category which necessarily deals with incompatible uses. City Plan in Ch. 3, s.2.5.2 describes it as development that is “not specifically envisaged”. In this particular case, that language is appropriate to describe this unusual use where, world-wide, there are only two existing examples. It would have been an example of extraordinary prescience had the drafter of City Plan foreseen a proposal of this kind.
Further, notwithstanding its unforeseen nature, there are features of the proposal which indicate reasonable consistency with some local provisions. For example, the proposed carpark is in the MP4 Convenience Centre Area, is in the Community Convenience Centre Precinct in the Kangaroo Point Peninsula Local Plan (“KPPLP”), and is generally in the location shown for a carpark in the Landscape Masterplan (which is itself referred to in the KPPLP).
Then the climb component of the proposal between Wharf Street and Holman Street, being “over” land in the Residential Precinct under the KPPLP, essentially fits the definition of “outdoor sport and recreation” for which the level of assessment is “impact assessment – generally appropriate” in the Residential Precinct under the KPPLP. See City Plan, Chapter 4, s. 4.3.
I accept the argument that the proposal will promote some of the development principles in the KPPLP in a positive way which was not (and could not have been expected to be) specifically envisaged by the drafter of City Plan. It will add to the range and extent of views from the Story Bridge (compare development principle 2.4 of the KPPLP) and as an addition to the bridge is directly responsive to its specific site and location (compare development principle 2.7).
In his report, Mr Robbins, the appellant’s consultant town planner conceded that acceptable solutions P1 to P5 in the KPPLP Code were apparently complied with. These solutions relate to criteria dealing with consistent building bulk (P2), the maintaining of views to and from the bridge (P3), building form in keeping with the existing streetscape (P4).
Although, on a strict view, the proposal involves non-residential development in the designated Residential Area and in the KPPLP Residential Precinct, Mr Butler and Mr Vann were each of the view, as set out in their reports that it was an anomalous situation for the land under the Bradfield Highway to be included in such an area. In considering those views I note that in cases such as Yu Feng Pty Ltd v Maroochydore SC 2000 1 QdR 306, 340, 345; Noseda Petroleum Pty Ltd v City of Mt Gambier 2000 108 LGERA 331, 337, 341 it has been said that planning instruments should be read in a broad practical way, more flexibly than a statutory instrument, and in cases such as Burmah Fuel (Qld) Pty Ltd v Redland SC 1995 QPLR 103, 106; Fitzgibbons Hotel Pty Ltd v LoganCC 1997 QPELR 208, 212 it has been said for there to be conflict with the planning scheme (for the purposes of IPA s. 3.5.14(2)(b)), there must be conflict as such, and it must be plainly identified.
City Plan provides that the appropriateness of generally inappropriate impact assessable development will be dependent on “its location, design and impact” (Ch. 3, s.2.5.2). In his report Mr Butler lists the 13 criteria given in Chapter 4, s.4.4.2 of City Plan for the assessment of a proposal said to be generally unacceptable for the High Density Residential Area and the Multi Purpose Centre MP4 – Convenience Centre and persuasively concludes that the proposal is consistent with each of them.
Under s.3.5.14(2)(a) of IPA, an approval must not “compromise the achievement of the Desired Environmental Outcomes (DEO’s) for the planning scheme area”. For this to occur –
“…there would, it is clear, have to be an obvious and significant cutting across of (the) DEO in such a manner that its achievement on a (City) wide basis had plainly been compromised.” Koerner v Maroochydore SC 2004 QPELR 211, 215[25].
I accept Mr Gore’s submission that the proposal will assist in achieving a number of the DEOs and supporting strategies. To borrow and adapt part of Mr Vann’s summary as set out in his report, the proposal:
(a) adds to the range of recreational opportunities available in the City, consistent with strategy 3.2.2.2;
(b) promotes cultural diversity by attracting visitors and residents to a culturally important structure and to inform present and future communities of the historical value, role and function of the structure, consistent with 3.2.2.3(c);
(c) achieves this in a way which protects the scenic landscapes and views of this important part of Brisbane, as intended by 3.2.2.4(a) and (b);
(d) is consistent with 3.4.2.1(a) as it helps implement the council’s Economic Development Strategy;
(e) is consistent with 3.4.2.1(c) as it widens the range of cultural and leisure facilities in the City, for tourists, visitors and residents;
(f) achieves the intent of 3.5.2.1 and 3.5.2.2.(a) by locating a tourist attraction of this nature in Kangaroo Point, which has high quality access to public transport systems.
With respect to the Heritage Place Code, for the reasons given by Mr Allom, the proposal satisfies the acceptable solutions in s.3.2.1, or alternatively, independently of the acceptable solutions, satisfies the performance criteria.
Taking all of the above into account it is difficult to see a conflict with City Plan in circumstances where this particular use was not envisaged for any area in any part of the City, where the primary components of the use can barely be described as being actually situated on the land and it is unlikely that the land over which the proposed development is to occur would ever be used for residential purposes or was ever intended by the drafter of City Plan to be used for such purposes. That it is considered under City Plan chapter 3, s.5.5.3 to be generally inappropriate is undeniable but it is difficult to see, when the nature of the proposal is examined carefully against all relevant provisions of City Plan any real lack of appropriateness on this site. Indeed in my view one is driven to the conclusion that it is an appropriate development and not in conflict with City Plan.
If that conclusion should be wrong, then pursuant to IPA s.3.5.14(2)(b) I must look to see whether there are nonetheless sufficient planning grounds to justify an approval.
In my view there are sufficient planning grounds. They are set out in detail in paras [42] and [47] but it is possible to summarise them. The proposal, without offending the heritage values of the Story Bridge, without any adverse effect on amenity, without placing any strain on city infrastructure, will add to the diversity of interests offered by the City to residents and visitors alike. It will do this by increasing the awareness of people to the importance and heritage value of what is probably the City’s most prominent landmark.
Conclusion
The appeal is dismissed.
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