Green v Brisbane City Council & Australand Pty Ltd
[2001] QPEC 75
•11 December 2001
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Green v Brisbane City Council and Australand Walker Pty Ltd [2001] QPEC 075
PARTIES:
KEVIN GREEN Appellant
And
BRISBANE CITY COUNCIL Respondent
AndAUSTRALAND WALKER PTY LTD Co-Respondent
FILE NO/S:
333 of 2001
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
DELIVERED ON:
11 December 2001
DELIVERED AT:
Brisbane
HEARING DATE:
24, 25 October 2001, 13, 14 November 2001
JUDGE:
Judge Robin QC
ORDER:
Appeal dismissed, conditions to be varied
CATCHWORDS:
Submitter appeal against Brisbane City Council approval of Development Application for proposed Apartment Building and Attached Houses in Lots 9 and 7 respectively which were separated by a street – relevant planning instrument was Kangaroo Point Peninsula Development Control Plan – Development Code in DCP contained 20 “elements” to be considered, each associated with design objectives, desirable solutions, mandatory (and other) requirements, and considerations – DCP acknowledged conflicts might arise between indicated measures, expressly aimed for best balance or optimum balance and acknowledged design objectives (whose relative importance would vary from site to site) can often be achieved in different ways – issues included traffic, streetscape, visibility of parking, setback, noise, views and private outdoor living and recreation space – no issues as to most “elements” – main issues concerned amenity of future residents within Lot 7 – acceptable to leave matters to the market and “consumers” – some development conditions should be changed, but appeal otherwise unsuccessful.
Integrated Planning Act 1997
Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206
Victor des Forges and Kangaroo Point Residents’ Association v Brisbane City Council and Principal Properties Pty Ltd 4297 and 4310 of 2000, 21 September 2001
GPW Developments Pty Ltd v The Brisbane City and Furzur Pty Ltd (1999) QPELR 357
Cooloola Golf Club Inc v The Council of the Shire of Noosa 49 of 1997, 8 March 2001
Dubay v City of Brighton (1988) 30 APA 217
Kwok v Brisbane City Council (2001) QPEC 050
Broad v Brisbane City Council (1986) 2 Qd R 317
Herbert v City of Geelong (1989) 38 APA 10
DHG International Pty Ltd v Council of the City of Gold Coast (1994) QPLR 107
Lewis v Mareeba Shire Council (2000) QPELR 432
Edwards v Douglas Shire Council (2000) QPELR 375
Mitchell Ogilvie (Mitchell Ogilvie Menswear) v Brisbane City Council (2000) QPELR 414COUNSEL:
Mr J. Haydon for the appellant
Mr M. Rackemann for the respondent
Mr M. Hinson SC and Mr R. Litster for the co-respondentSOLICITORS:
Hunt & Hunt for the appellant
Brisbane City Legal Practice for the respondent
Allens Arthur Robinson for the co-respondent
REASONS FOR JUDGMENT
The appellant Mr Green complains of the Brisbane City Council’s approval of an application for a Development Permit for a Material Change of Use and Preliminary Approval for the Carrying out of Building Work for the purposes of Apartment Building and Attached Houses at 10 Holman Street and 15 Anderson Street, Kangaroo Point. The co-respondent’s two sites are separated by Anderson Street.
The aggregate “site” area is 6,902m2. The larger parcel, which it is convenient to refer to as Holman Street, although it has a long frontage to Anderson Street, is Lot 9 on Crown Plan No 885002. To the east it extends to the Brisbane River. To the south it adjoins another large riverfront site upon which is constructed Yungaba, a heritage listed building with an interesting history for much of its life as a migrant reception centre. There is a short frontage on the south to Anderson Street where it heads to the east after running generally southwards from Holman Street. The western frontage is to Anderson Street, and the northern frontage to Holman Street, across which is located Captain Burke Park. The park occupies the northern tip of Kangaroo Point and is dominated, like the site, by the Story Bridge. The approved development proposal includes arrangements to secure public access to the riverfront which would ensure completion of a riverfront walk intended to be an important public facility on eastern and western sides of Kangaroo Point, linking in the park. Facing the public path will be a building containing low rise apartments (called villas) and behind it two more substantial buildings, one of seven storeys, the other of eight. Roof heights are limited to ensure the protection of views to the east from the Story Bridge as required by the Kangaroo Point Peninsula Development Control Plan. Forty residential tower units and eleven villa style units nearer the river are proposed.
The appeal has been more concerned with the co-respondent’s proposal for that part of the “site” west of Anderson Street, Lot 7 on registered plan No 885001. The area of Lot 7 is 943m2. The Anderson Street frontage is approximately 56m and the depth of the allotment is approximately 17m. The shallow depth presents difficulty for the design of the “high intensity residential development” for which the Development Control Plan (Section 1.1) describes Kangaroo Point as “in most respects … ideal”. Relaxations have been sought and approved in respect of boundary clearances for the proposed eight terrace houses in every aspect. Lot 7 adjoins the Yungaba site in the south. Across the boundary in this location is an undistinguished residential building of a couple of storeys. (Although no firm plans for its future exist, the expectation was referred to of development of the Yungaba site so as to generate 33 dwelling units, access to which would be by Anderson Street.) The rear of Lot 7 does not extend quite far enough to the west to fall under the Story Bridge. There is a narrow strip of land on the western boundary extending from the Yungaba site to Holman Street which would make up the difference. The real property description appears to be Lot 4 on RP 52454; it may be that Lot 2 on a different plan accounts for the northern end, bordering Mr Green’s property (see Exhibit 1). It is presently vegetated, with “what happens to be growing there – weeds species” according to Mr Robbins, providing a screen of sorts for the Council storage yard which is on the land under the Story Bridge proper, but not constituting a landscape screen as envisaged for this strip in the Kangaroo Point Peninsula Landscape Master Plan (Exhibit 11). It seems the Council owns this narrow strip, and that its spending priorities have not allowed the Master Plan’s implementation there yet; prudence probably dictates waiting until the future of the land to the east is known.
The remaining private land east of the Story Bridge is the appellant, Mr Green’s. It is occupied by a house and represents a notional extension of Lot 7 along the balance of Anderson Street to Holman Street. Exhibit 1 suggests the area is 334 m2.
Mr Green’s submission to the Council, urging rejection of the application, repeatedly suggested that the two parts of the co-respondent’s site should be amalgamated and on the basis of a land swap whereby Anderson Street would be relocated further west. Doubtless Mr Green envisaged that his property would be involved in such a swap and relocation, which might well enhance prospects of its redevelopment, and perhaps in association with the co-respondent’s land holdings. If planning matters were completely at large, such a suggestion appears to offer many advantages: there might no longer be two shallow or narrow blocks in an isolated location; residential development would be moved (at least across a street) away from the Council storage depot; better development utilising a larger site might be possible. Arrangements might be made to incorporate Mr Green’s property (wherever finally located) in a larger proposal: the present proposal for Lot 7, if it goes ahead, will possibly lead to a “bitty” streetscape in Anderson Street, which may be a less pleasing outcome than, for example, a terrace development extending the full length of the street, whether on the eastern or western side. Time need not be devoted to such considerations. The Council and the court alike are restricted to considering proposals which are put up in respect of particular sites. Mr Haydon, who appeared for Mr Green, made it clear he was not pursuing the suggestions made in his client’s submission, and that there was no basis on which he was entitled to do so.
The co-respondent’s IDAS development application is dated 16 May 2000. It was common ground that the planning instrument against which it had to be assessed was the Kangaroo Point Peninsula Development Control Plan as amended to 4 September 1998. The co-respondent bears the onus of establishing in the court that its application should succeed. I agree with the parties that the DCP is the planning instrument by reference to which the fate of the appeal should be decided. There is no occasion here to explore the implications of dicta of Davies JA and Pincus JA in Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206 in relation to a transitional planning scheme’s being “of persuasive relevance only” or “not absolutely binding,” which were considered in paragraphs 34 and 35 of Judge Brabazon QC’s reasons in Victor des Forges and Kangaroo Point Residents’ Association v Brisbane City Council and Principal Properties Pty Ltd (4297 and 4310 of 2000, 21 September 2001), which preceded his Honour’s analysis of the DCP.
The Aims of the Development Control Plan are set out in s1.3:
“The overall objective is to promote the development of the area for R6 intensity housing, in a way which will:
(a) be environmentally sustainable;
(b) contribute to the overall liveability of the City;
(c) be most enjoyable and convenient for residents; and
(d) enhance and take full advantage of the unique characteristics of the area.
More particularly, the intentions are to:
(e) foster sustainable development, facilitate the consolidation of the city and a reduction in the use of cars – by attracting people to live in the area and use the ferries;
(f) to ensure the activities allowed in the area are conducive to the comfort, interest and enjoyment of residents – by limiting the extent and nature of non-residential development.
(g) enable as many as possible to enjoy the spectacular views – by ensuring development will not block the outlook of those crossing the Story Bridge – by protecting vistas for those moving about the area, and subject to other objectives – recognising the desire residents have for views from apartments;
(h) recognise both the importance of the Story Bridge as a city landmark and the relevance of the peninsula on the skyline of the city – by protecting certain views of the area and moderating the height of development;
(i) provide for the public enjoyment of the extensive river frontage – by completing the riverside walkway from the Kangaroo Point cliffs to Mowbray Park;
(j) promote a preference for walking and calm traffic, to improve safety and local amenity, to minimise the unnecessary use of cars and the extent to which extraneous traffic circulates within the area – by improving the permeability of the area with a network of walkways connecting the ferry terminals, a community precinct and the ‘town square’ of Dockside;
(k) improve the safety, comfort and ambience of pedestrian places – by providing for surveillance from adjoining buildings – by planting shade trees, improving pavements and co-ordinating landscaping in accordance with the Kangaroo Point Peninsula Landscape Master Plan;
(l) acknowledge the cultural need for continuity with the past - by recognising and facilitating the retention of the places having most heritage significance;
(m) ensure development forms public spaces which are continuous, sensible, legible, responsive and vital – by application of the Development Code;
(n) have development achieve the best balance in the way it responds to its site, adjoining development, the area of the Plan and the city and the environment as a whole – by application of the Development Code.”
The Development Code is further explained as follows:
“1.5 Regulation of Development
Development throughout the planned area is to be in accordance with the Development Code of Section 3.0. However, different requirements apply in different parts of the planned area and, particularly as they might affect height, they result in markedly different forms of development.
Certain provisions are included specifically for the small amount of non-residential development to occur in the area, in general, however, non-residential development is to be compatible with and largely satisfy the requirements for residential development.
The Development Code:
§ identifies the elements to be considered in the design of development;
§ establishes design objectives for those elements;
§ recognises that the measures needed to satisfy one objective may conflict with those needed to satisfy another;
§ aims to achieve the optimum balance in the way the various design objectives are achieved;
§ indicates the objectives likely to be of most importance and the balances and compromises which may be appropriate;
§ recognises that the relative importance of the objectives also depends on the circumstances of a site, which must be considered on a case by case basis; and
§ acknowledges that the design objectives can often be achieved in alternative ways.
In certain circumstances, the achievement of the design objectives of the Development Code may preclude the development of a site to the maximum allowable gross floor area.”
The acknowledgement that conflicts may arise is noted, likewise that balancing exercises may be necessary, with a view to achieve the best or optimum balance. I agree with Mr Hinson SC’s submission, bolstered by reference to Judge Brabazon’s reasons, paragraph 57ff, that use of such concepts does not mean a developer must achieve perfection or select the best alternative in order to satisfy the DCP. His Honour referred to “a settled approach to development in general (being) to reject the idea that a proposal which is acceptable against the detailed development code can nevertheless be found to be unacceptable because there might be some other complying design which a particular person or group regards as being superior” and the statement in GPW Developments Pty Ltd v The Brisbane City and Furzur Pty Ltd (1999) QPELR 357,359 (another Kangaroo Point case) that:
“it may be that from the Appellant’s perspective a better result might have been obtained but that in itself is not a sufficient reason for refusing the application.”
In this appeal, the Council seemed to me to support the co-respondent’s application with unusual enthusiasm, which may well be attributable to the opportunity it offers to complete an important link in the riverside walkway. This has led me to approach the Council’s evidence and arguments with some caution. Nevertheless, I think Mr Rackemann, who represented the Council, was correct in his submission that, where a balancing exercise is called for, as here, and where conflicts between objectives are expected, the court should not be distracted by the appellant’s focus on Design Objectives and associated Requirements (as to which there may be actually or arguably non-compliance or “conflict”) from recognising the importance that what matters is “the code overall and when you look at this on anybody’s case this development, whatever component you look at, is very substantially in accordance with the code whatever view you take of the evidence.” (p.357). What is called for was said to be “an overall assessment”. Mr Rackemann was critical of the appellant’s case for concentrating on “requirements” and on claims the co-respondent’s proposal did not meet particular requirements. (He asserted that, in respect of the live issues in the appeal, there is no formal allegation of non-compliance with any design objectives in the development code or indeed with any mandatory requirement.) The Council’s argument was that if a requirement were unsatisfied, this was “perfectly acceptable” if the design objective was satisfied in another way. Mr Rackemann argued there was a remaining possibility that “you don’t even comply with the design objective but there are particular circumstances of the case which warrant forgiveness anyway”. Reliance was placed on what Judge Brabazon said in Des Forges:-
“The development code is not, in itself, an inflexible document, apart from its reference to mandatory requirements. It seeks to provide guidance by setting out various objectives and indicating ways in which they may be met. It seeks to provide guidance by setting out various objectives and indicating ways in which they may be met. It contemplates that stated requirements and desirable solutions might be departed from even if the departure would lead to a non-fulfilment of the relevant design objective. The Code contemplates that some design objectives will have “greater importance” than others and that, perhaps, not all design objectives will be satisfied all the time. The intention clearly enough is that all design objectives are to be considered, and that usually they will be satisfied, if only in a suitable, alternative way.”
The Development Code begins with s3.1 Introduction:
“The Code comprises:
§design objectives for each of the elements to be considered;
§mandatory requirements for certain elements, which are of such importance that they will not be varied unless a variation is specifically provided for within the Code;
§requirements, which will be varied only where the circumstances warrant or the Council is satisfied that the relevant design objectives are achieved suitably in an alternative manner;
§desirable solutions, which should be achieved unless the Council agrees that the necessary measures would conflict with those needed to satisfy objectives having greater importance, or the relevant design objective can be satisfied suitably in an alternative manner; and
§considerations, providing further information on the priority to be given to certain design objectives in certain circumstances, indicate where variations could be appropriate, suggest alternative ways design objectives may be met, and propose possibilities which are desirable but not required by the Code.
Note that an application for a variation of a development standard in accordance with Sub-Section 24.5 of the Town Plan, is not required by non-compliance with a desirable solution. The Council may, however, require compliance as a condition of approval where a desirable solution is reasonable under the circumstances, and is not prejudicial to the achievement of more important design objectives.”
It is unnecessary to decide in this appeal whether Design Objectives, Mandatory Requirements, Requirements, Desirable Solutions and Considerations come within a strict hierarchy in accordance with the order of their “dot points” above, in particular whether a Mandatory Requirement may be overlooked because the immediately preceding Design Objective appears to be achieved (assuming there could be such a case).
There are 20 “elements” under the Development Code, namely Site Area and Frontage, Site Cover and Site Features, Intensity of Development, Height and Views from Public Places, Streetscape and Security, Architectural Treatment, Compatibility with Heritage Buildings, Climatic Response, Noise, Views for Residents, Boundary Clearances Separation and Privacy, Overshadowing, Outdoor Living and Recreation Space, Landscaping, Required External Works, Riverside Public Access and Park, Other Pedestrian Access Ways, Parking and
Vehicular Access and (lastly) Vehicular Access to Main Street. Overwhelmingly, the co-respondent’s proposal addresses those elements and the Design Objectives amplifying them. The only Design Objectives as to which an issue was raised related to Noise (- to protect habitable rooms from excessive noise, particularly that caused by traffic on the Story Bridge – DCP 3.10.1), Outdoor Living and Recreation Space (- to ensure communal outdoor recreation space is provided for residents – DCP 3.14.1(b), also to have private outdoor living areas large enough for outdoor eating and passive recreational pursuits so residents can enjoy the city’s sub-tropical climate – DCP s14.1(a)) and Vehicular Access (- to ensure convenient and safe vehicular access is provided for residents – DCP s3.20.1(a)). Generally, as noted, the appellant’s objections to the proposal related to Requirements or Desirable Solutions. The criticisms can now be dealt with in turn.
Traffic Issues
Traffic issues relate mainly to the major Holman Street development, although in relation to the terrace houses some concern was expressed about entrances to proposed parking areas, vehicle manoeuvring spaces and safety of entries or exits to or from the parking areas. Mr Stewart Holland produced a report for Mr Green which makes a number of valid points that have commanded acceptance that traffic arrangements should be changed. Direction of traffic through the porte cochere near the bend in Anderson Street should be reversed, and the complicated arrangements proposed to deal with converging accesses to upper and lower car park floors (which physically represent a continuation of Anderson Street) will be improved by abandoning a proposed give way sign and convex mirror in favour of ensuring that there are unimpeded sight lines available to drivers using each of the two-way “upwards” and “downwards” ramps. It is now thought that remote control devices to trigger car park security doors are preferable to arrangements whereby drivers must manoeuvre to depress a control set in a wall or pillar.
Mr Holland only had one point which he considered warranted refusal of the co-respondent’s application. Condition 27(a) of the Council’s Development Approval Conditions, which precludes refuse collection vehicles reversing along Anderson Street, cannot in practical terms be achieved. The porte cochere change should alleviate difficulties of such vehicles or furniture vans (not referred to in any condition) reversing more than is necessary.
Although Mr Viney and Mr Brameld (or those calling them) appeared to me to belittle Mr Holland’s report on the basis of his relative inexperience, I have found Mr Holland’s views useful in identifying issues. In the end, I accept the combined view of the others that the likely traffic volumes, even as they may be affected by the most intensive redevelopment of Yungaba that is likely, mean that the potential for “vehicular conflict” or other dangerous situations to arise falls well within what is experienced and tolerated every day generally and in the present circumstances is acceptable.
I think Mr Holland is correct in his view that there ought to be a turning circle provided, of the kind the court was shown in nearby streets east of the Story Bridge and its approaches, which are possibly becoming a minor feature of Kangaroo Point. Such a turning circle is probably better located at the bend in Anderson Street, rather than at the eastern end. I accept that the short east-west section is a public road, even though its function in the immediate future will be as a private road servicing the proposed development, but there seems no good reason for - and every reason against encouraging general traffic to move along Anderson Street, which is, of course, a dead end and marked as such, when there is no point to that movement.
With the changes referred to above, I am satisfied there is no unacceptable compromise of pedestrian safety. Nor is there any unacceptable impact on future vehicle access to “the old Evans Deakin site within Yungaba” south of Anderson Street. A submission to the Council from the Department of Public Works in relation to this matter (Exhibit 2 page 138) expressed concern that access to the proposed development not adversely impact upon the potential for future vehicular access via Anderson Street to the Yungaba property and sought assurance “that this would be taken into consideration, prior to allowing the development to proceed”. At the worst, there is a possibility of access from the eastern tip of Anderson Street being rendered more difficult, but I see nothing unacceptable about this. I am sure any difficulties could be alleviated by suitable arrangements within the Yungaba site which will, in any event, be easily accessible from Anderson Street otherwise.
Terrace Houses
For purposes of the appeal I accept Mr Haydon’s argument that the proposed development has to be looked at as two separate developments, Holman Street (which he characterised as apartments and villas) and Anderson Street (which he characterised as terrace houses). It may be that one development is approved, the other not. Cf the differing outcomes of the combined applications relating to a golf course and residential development in Cooloola Golf Club Inc v The Council of the Shire of Noosa (49 of 1997, 8 March 2001). There was some evidence about the current marketing by the co-respondent, which appears to relate to Holman Street only (Exhibit 33 in particular). It may be that the terrace house proposal does not proceed. Looking at the larger picture, as noted elsewhere, it may be preferable if some revised development incorporating Mr Green’s land happens instead. Such considerations do not relieve the court from having to assess the Anderson Street part of the combined development here.
I agree with Mr Haydon’s point that, even if, analysed individually, various elements of the development may appear acceptable, it is the combined effect and cumulative impacts that the court must assess and have regard to. Mr Haydon submits the conclusion is that the Anderson Street development should not be allowed to proceed. The decision whether or not that is the ultimate conclusion is one which, in practical terms, I have felt constrained to defer until the separate issues are evaluated. I agree with Mr Hinson, for the co-respondent, that the court should restrict its consideration to those issues which have been raised and persisted in by the appellant.
Boundary Setbacks
The appellant asserts the approved development fails to comply with the DCP in having insufficient boundary setbacks. As to the street alignment, the Requirement (in s3.6.2(a)(i)) is that no part of a building or other structure above the level of the ground, other than eaves, awnings, screens and the like, is to be within a building line 6m from a street alignment. Mr Robbins, an architect and
town planner, who gave expert evidence for the appellant described the 6m building line as “compromised by the intrusion of significant structures such as balconies, courtyards, walls and carports containing required car parking. These structures visually intrude into the streetscape giving an appearance of cluttered space and over-development of the site.” He did not accept that the Consideration in s3.6.3(a), whereby verandahs, balconies, unroofed terraces, pergolas and the like may be approved within a building line, assisted the proposal. The proposed pergolas, to accommodate vegetation, extend very close to the street alignment. Part of the idea of them is to screen parked vehicles and to an extent to minimise their visual impact. They are broken up by a total of three (double) driveways on to lot 7, but contribute, in Mr Robbins’ view, to giving an appearance of a long bulky building. Judge Roder’s decision in Dubay v City of Brighton (1988) 30 APA 217 in which a single carport within the building line was rejected was referred to. The objections summarised in the headnote, namely that:
“(a) have the air of an object protruding out of the façade of the existing house and extending for a considerable distance towards the street alignment;
(b)break up the general pattern and the relative harmony of the frame of development in the locality;
(c)disturb the balance of the existing house as viewed from a street
connecting with the frontage street;
(d)affect detrimentally the pleasant environment and the amenity of the residential area; and
(e)alter the character of the residential area.”
indicate how different are the present circumstances where, essentially, the only other building is Mr Green’s house, which in both Holman Street and Anderson Street comes extremely close to the building alignment. (I do not suggest that the continued existence of this 50-year-old dwelling constitutes a justification for new development’s following suit.) Reference was also made to 3.6.3(e) which provides that where an outdoor living area faces a street “it is appropriate to provide a solid fence or the like up to 1.8m high to provide privacy or attenuate noise”. This provision appears to me relevant to respond to the appellant’s argument referred to in Exhibit 16 Schedule 1(a) where it is stated that, “if the front walls of the courtyard are taken as the front of the building, then the setback is only 4.4m.” It is worth noting that Exhibit 5 was an elaborate model of the co-respondent’s proposal (supplemented by Exhibit 5A, a model of Mr Green’s house), which considerably eased the burden of visualising the approved plans (which are the material on which the court must act) “as constructed”. Except in very minor (identified) aspects, there was no suggestion the models were inaccurate or misleading.
Side and Rear Boundary Clearances
Side and rear boundary clearances are dealt with in the DCP in s3.12.2:
“No part of a building is to be closer to a side or rear boundary or a site than 10 metres, except for any part having:
(a) a blank wall directly facing a side boundary which is:
(i)not closer to the boundary than 6 metres;
(ii)not longer than 15 metres; and
(iii)not closer to a similar wall on the same side of a site than about 30 metres; or
(b)a blank wall directly facing a side boundary which is:
(i)not higher than 9 metres;
(ii)not closer to the boundary than 2 metres;
(iii)not longer than 15 metres; and
(iv)within about 25 metres of a frontage; or
(c)an exterior wall or balcony which is in a screened situation in relation to an existing or prospective building on an adjoining site:
(i)not higher than 9 metres; and
(ii)not closer to a side or rear boundary than 6 metres.”
The appellant relies on (c)(ii) and points to side boundary clearances of 2 metres being approved, and rear boundary clearances of nil (alleviated by sections cut back to permit some entry of light and air). The side boundary clearances are justifiable under (b) because the walls in question have been designed to come within the definition of a blank wall in (a) of the apposite Considerations in s3.12.4, which also defines a “screened situation” in (b), and by way of inviting further relaxation provides in (c) that “Screens, sun shading devices, awnings, eaves and the like, may extend up to approximately 1m closer to a boundary than the clearances listed in 3.12.2 and 3.12.3”. The final Consideration (in 3.12.4) is:
“(f)Consideration will be given to a blank wall being built along or close to a side boundary where, for example, it is not more than three stories high and would face a similar wall on an adjoining site, or it is desirable and likely that a building on the adjoining site will be similarly built along or close to the same part of a boundary.”
Mr Robbins deals with the rear boundary situation as follows:
“ The requirements of s.3.12.2 also address rear boundary clearances. Section 3.12.2 does not allow or contemplate zero boundary setbacks. In the proposal, zero setbacks are indicated to the western boundary of the site containing the attached dwellings.
The provisions of s3.12.4(f) are noted. If this is to be relied on to support a blank wall being built along the boundary of the subject land, then a presumption must be made that such wall “would face a similar wall on the adjoining site”. Assessment of the subject proposal must, as a consequence, contemplate the construction of buildings on the boundary of the adjacent site to the west. Not only because the DCP states that this should be a consideration in granting any relaxation of the stated boundary setbacks, but also for reasons of consistency should such an application be made.
In its most obvious interpretation, the phrase “a similar wall on the subject site” can be taken to imply the construction of as building on the adjacent site having a wall representing a mirror image of the rear wall of the proposal. That is, with similar boundary clearances and wall profile.
The current use of the adjacent site is for storage. Under normal town planning considerations the visual and noise impacts of such a use are considered to be detrimental to residential uses. Enclosure of stored material and its associated access areas within a building, subject to a well designed building form, reduce or eliminate these impacts. At the same time, there would appear to be no restraint for a storage building to be constructed right up to the boundary of the subject land. Such a wall would, indeed, be similar (in its use of zero building setback) to that proposed by the Applicant.
If a building were constructed on the adjacent land to the west utilising a zero boundary setback, then the provision of adequate light and air to the habitable rooms of the proposed attached house is doubtful. Refer Figure 3 – Light and Ventilation Considerations.
Alternatively, were the adjacent western site to be used for residential purposes, the use of the area closest to the boundary would be constrained by its location under the edge of the Story Bridge structure above. The potential for objects to fall from the bridge structure is real. Consequently, probably the best use for this area is for car parking or storage provided such uses were protected within a building constructed up to the boundary. There would, as a result, be a similar impact on light and air provisions to the proposed development.
Section 3.9 of the DCP seeks an appropriate development response to Brisbane’s sub-tropical climate, particularly to maximise the comfort of residents in summer. Where air conditioning of buildings is not proposed, and there is no evidence that it is in this proposal, then the achievement of good ventilation to maximise residential comfort on hot summer days is good design responding to climatic requirements. This desirability of cross ventilation is reinforced by its inclusion as a desirable solution under section 3.9.3 of the DCP.
The proposed building design, by use of a zero boundary setback for over 60% of the rear boundary restricts the extent of available openings to achieve cross ventilation to a significant degree. This restriction is further increased for ground floor living areas by the use of courtyard walls on the eastern side of the buildings fronting Anderson Street.
The potential even for this low level of cross ventilation will, in the event of a building being constructed in a similar location on the adjacent site to the west, be reduced even further. This will result in the creation of still areas within the proposed dwellings that will be uncomfortable to most people, severely degrading residential amenity. The effect would be to restrict cross ventilation as sought under provision 3.9.3(d).
Use of a zero building line for over 60% of the total building length will restrict space around the building on the land, particularly from the north when looking south. Lack of space around buildings of a residential nature will, in turn, lead to a perception of over and inappropriate development of the site.
The use of a zero lot line in this instance is inappropriate, will severely degrade residential amenity, and is bordering on a situation deemed under Parts 3.8.4 and 3.8.5 of the Building Code of Australia (BCA) to potentially be adverse to health and amenity considerations. Copies of BCA parts 3.8.4 and 3.8.5 are included as Appendix B to this Report.”
This well reasoned approach is beside the point in the circumstances of this case. In practical terms, it is not presently possible to contemplate that anything other than storage sheds would be built on the site of the Council storage yard. It is separated from the proposed terrace houses by the strip of land earmarked for landscape screening in the relevant landscape master plan. The Council appears to be the proprietor of all land to the west and one would not think it in the least likely it would, having approved the co-respondent’s proposal, embark on development of its own which seriously compromised the amenity of the proposal. The present is a “one off” kind of situation in which a nil setback appears sensible; it is difficult to gainsay the suggestion Mr Green would reasonably anticipate a similar indulgence. It will be recalled that Requirements as contained in the 3.12.2, for example, may be varied where the circumstances warrant or the Council is satisfied that the relevant design objectives are achieved suitably in an alternative manner. The Design Objectives here are set out in 3.12.1:
“(a)to prevent buildings on adjoining sites being unduly close and oppressive in the way they block neighbours daylight and exposure to the sky; and
(b)to provide privacy for the internal and external living spaces of dwelling units, from people in:
(i)buildings on adjoining sites;
(ii)units on the same site; and
(iii)streets and other public and common spaces, ie. The avoidance of ‘shopfront-living’.”
The proposal meets those objectives. I do not accept Mr Robbins’ view that whilst individual waivers may be arguable for each boundary, those sought and given here “point to a clear over-development of the site.” He gave unchallenged evidence that a taller development could be accommodated on the site, and suggested that eight residential units more spacious than the proposed terrace houses could be provided in four floors of two each above a ground level car park, for example. A number of witnesses agreed that in high density residential areas, there is a trade-off insofar as a taller building will account for less of the site and vice versa. Despite one’s impression that Kangaroo Point is dominated by high rise, there is, on closer examination, a mix of high rise and low rise development (which is satisfying in its way), even if consideration is limited to new developments. It will not be overlooked that the “villas” proposed for Holman Street are low rise.
Non-compliance with the DCP on the basis of inadequate provision of private outdoor space has already been noted as a respect in which the appellant points to a Design Objective not achieved. The Requirements in 3.14.2 are:
“(a)Units should have private outdoor living space directly accessible from a living room, provided either as:
(i)a balcony not less than 10 square metres in area and 2.5 metres wide; or
(ii)a court not less than 35 square metres in area and 2.5 metres wide, clearly defined as being for private use.
(b)30 per cent or more of the ground level of any site used for residential purposes is to be provided as common landscape and recreation area.”
Here, the largest proposed balcony is only 4.5m2 in area. The courtyards proposed for six cases of the eight fall well short of 35 m2, being either 17.5 m2 or 14 m2 according to Mr Robbins, who excludes balcony areas from consideration as potential additions because none has a width of 2.5m or more. There is a rationale for the disregarding of the private outdoor living space requirement in 3.14.3, set out above, which is applicable given the proximity of Captain Burke Park and the Riverside Walkway. I agree with Mr Robbins that the overall effect on the residents will be the provision of “constrained and pokey outdoor spaces”, but not that residents would necessarily see this as “a low standard of residential amenity” or have “a clear perception that too much has been squeezed on to the land”. This seems to me a matter for individual judgment.
The same comment may be made in relation to outdoor living and recreation space, of which there is none proposed for the terrace houses, a defensible arrangement having regard to 3.14.3. There will be some people with no interest whatever in having access to “communal outdoor recreation space”, who may be pleased to become residents of such premises.
Views
The same comment is applicable in respect of Views for Residents, of which there are none for practical purposes, although occupants of the end terrace houses may be favoured to an extent over occupants of the others. The relevant design objective in 3.11.1 is modest:
“(a) subject to the need to satisfy other design objectives, to provide opportunities for development to maximise views for residents.”
The following Desirable Solution, again limited by introductory words (“As far as is reasonably possible”) refers to provision of view corridors for buildings (existing and prospective) away from the river. The reality is that not everyone can have a river view. Unexceptionable development, such as the proposed apartment buildings here, necessarily destroys views from land further removed from the river. Only those who can do without views (or cannot afford them) are likely to contemplate acquisition of one of the terraces.
Parking for Terrace Houses
All parking will be provided in front of the terrace houses. For six of them there will be covered garages entered by driving straight in from the street (such garages sit at the end of each double driveway); garages for the remaining two townhouses are proposed to be set at right angles and accessed by one or other of the shared driveways. These account for two of the “pergola” car parking spaces ranged lengthwise along the street alignment; the other two are allocated as a second car parking space to two of the townhouses. In addition, there are two open visitor car spaces along the street alignment in which vehicles will park side-on to Anderson Street. The Design Objectives for Parking and Vehicular Access in the DCP are:
“3.20.1 Design Objectives:
(a) to ensure convenient and safe parking and vehicular access is provided for residents, visitors, emergency and service vehicles;
(b) to have parking provided at a rate consistent with the Council’s intention to increase the use of public transport; and
(c) to locate and design parking and vehicle access areas in a way which is compatible with the other design objectives of this Code. (s30.20.1.)”
The appellant focuses on non-compliance with one of the nine Requirements:
“(f) Parking should be located below a building, or possibly behind a building, so as not to be visible from a street or other public place and, in accordance with the streetscape and security design objectives, and where feasible, the entrances to undercover parking should not face a street.”
There are issues relating to location of the parking and the entrances. While provision for parking behind the building on the shallow site could possibly be made, this would seem difficult to achieve and costly in terms of land required to permit access and necessary manoeuvring. Parking could also be provided as an exclusive use of the ground level. Commonsense suggests either alternative would be costly.
The second aspect of the parking point arises under the Requirement of DCP s3.6.2(g) that developments are to be designed with a minimum of the area in front of the building being used for parking and driveways. For purposes dealing with the point it is convenient to adopt the appellant’s summary in the book of issues (with an objectors’ location map) which he and his advisors compiled to identify and explain the limited number of still live issues selected from the considerably larger number appearing in the Notice of Appeal (Exhibit 16):
“approximately one third of the area in front of the building is used for parking. This proportion is elevated from drawing DD-51B as follows. There are three double driveways. Each is of the same width as the areas on either side of each driveway containing a pergola, a hedge and trees. Of each pergola/hedged/treed area approximately one half of that area is occupied by the pergola which covers a carpark. The proportion of one third is calculated using ratios as follows.
Pergola/hedged/trees areas x Pergola area = 6 x ½ = 6 = 1 (Pergola/hedged/treed areas Pergola/hedge/treed (6 + 3) 1 18 3
+ driveways) area
The proportion of 1/3 cannot, by any stretch of the imagination, be described as “a minimum”.
Secondly, on the matter of driveways the pergola/hedgedtreed areas occupy the following proportion of the total area in front of the building.
6= 6 = 2
6 + 39 3
The remaining one third is used for driveways. Again this proportion of 1/3 cannot be described as “a minimum”.
The parking areas and driveways occupy (1/3 + 1/3 =) 2/3 of the area at the front of the proposed building. This parking area/driveways domination will be an “undesirable contribution to streetscape” as quoted from the notation to FIGURE 2 on page DP-164 of the DCP.
In summary, it is submitted that the Development Application does not comply with this sub-section of the DCP.”
The DCP contains a number of figures illustrating the dos and don’ts under the current philosophy of avoiding massive visual impacts in streetscapes of parked vehicles, parking facilities and access to them. The two figures in the DCP which specifically allude to parking (Figure 2 and Figure 3) plainly represent much taller residential buildings which would be associated with greater numbers of vehicles. The appellant also relied on Figure 4, which illustrates lower buildings, still considerably taller than the proposed terrace houses, but with the caption “height limits to retain views from the Story Bridge cause spread development, which usually addresses a street in a desirable manner”, raising some question whether the point of Figure 4 is parking, notwithstanding that it exhibits an exemplary arrangement in which, in a two building development (probably about three times the size of the terrace houses proposed here) the only impact of parking on the streetscape is a single driveway. Figures 2, 3 and 4 illustrate Design Objectives set out in 3.6.1 for the element Streetscape and Security, only one of which refers specifically to cars:
“(g)to minimise the extent facilities for cars detract from residential and pedestrian amenity.”
Given the physical constraints of Lot 7, the proposal for parking is acceptable, in my view. Speaking broadly, the design objectives in 3.6 Streetscape and Security are achieved, likewise the design objectives in the related element 3.20 Parking and Vehicular Access:
“(a)to ensure convenient and safe parking and vehicular access is provided for residents, visitors, emergency and service vehicles;
(b)to have parking provided at a rate consistent with the Council’s intention to increase the use of public transport; and
(c)to locate and design parking and vehicle access areas in a way which is compatible with the other design objectives of this Code.”
The pergola arrangements will provide some screening of parked vehicles, although probably not to the extent of rendering passers-by oblivious of them. No more than two visitor vehicles will be parked close to the street alignment without pergola screening.
It is convenient here to note the appellant’s argument that inconsiderate persons may park on the driveways, blocking access to or from designated car parking spaces. I think this is a general risk of modern life which would be no more troublesome here than in other circumstances. I think it is reasonable to assume that considerateness will be the rule. The evidence suggests that on that basis any parking in the driveways would not prevent manoeuvring of vehicles moving to or from designated parking spaces at right angles to the driveways. In this regard the appellant has asserted non-compliance with a Design Objective (3.20.1)(a)), but he has not made it out.
Wheelie Bins
Constraints on Lot 7 are such that the court became involved in considering the minutae of locations where wheelie bins might be stored. While at first blush this might have an appearance of absurdity, it was a serious point. One of the Design Objectives relating to the Streetscape and Security is 3.6.1(h):
“to provide the servicing needs in developments in a way which is not prejudicial to the appearance of developments, streets, or other public places.”
The appellant relied on the Requirement in 3.6.2(h) that areas for storage bins should not be closer than 6m to a public place: it appears to offer the alternative of bins “otherwise screened by walls that are compatible in appearance with those of the principal buildings on the site.” The appellant’s case suggests residents will store wheelie bins in their modest courtyards as remotely as possible from their front entries, and therefore on the side of the courtyard closest to Anderson Street (presumably behind a wall). On this basis the distance between a wheelie bin and Anderson Street would be 4.4m. A number of witnesses exercised ingenuity in identifying other discrete locations for wheelie bins in garages (not compromising access to vehicles parked there) and under staircases. While putative residents might at times regret that wheelie bins were not smaller, or that one of them could not be adapted to serve the function of two, I do not regard this feature of the proposal as unacceptable, assuming that there will be rational consumers opting for lifestyle choices involving more propinquity with wheelie bins than may be welcomed generally.
Noise
It is a Design Objective in DCP 3.10.1 (a) to protect habitable rooms from excessive noise, particularly that caused by traffic on the Story Bridge (and arterial streets). On the basis that noise is transmitted along lines of sight, concern was not related to ordinary traffic noise of the kind contemplated in the Desirable Solutions which envisaged, for example, noise sensitive areas like living rooms and bedrooms facing away from a noise source, buffered by less noise-sensitive parts such as bathrooms. There is no line of sight from Lot 7 to traffic on the Story Bridge. The concern related to noise generated when traffic crosses expansion joints on the bridge – the graphic description “tyre slap” was used. The court’s inspection confirmed such noise is noticeable underneath the bridge and on adjacent sites. There are relevant Australian Standards here, and the Council has imposed a condition which defines the maximum noise level which can be tolerated. The noise experts were agreed the level could be achieved by use of appropriate building materials and design techniques, but with doors and windows closed. The appellant’s case was if the development were to be allowed to go ahead, there must be a condition requiring provision of air conditioning in the terrace houses. Consistently with his general approach in this appeal that the market should be trusted and tested, Mr Rackemann submitted it should be left to purchasers to decide whether or not they wanted air conditioning, perhaps after occupying their terrace houses for a time. Mr Hinson said his client was prepared to submit to a condition requiring air conditioning. I am more attracted to Mr Rackemann’s approach. I do not think the court should too lightly exercise compulsion (at a concomitant cost) in a matter best left to the judgment of the persons whose amenity is sought to be protected.
I have reached the view that a condition would be appropriate in terms of the Requirement in s3.9.2(c) in relation to the element of Climatic Response to the effect that:
“Where habitable rooms are not air conditioned, buildings are to be designed to provide for the future installation of air conditioners in a way which retains the architectural integrity of the building.”
During the appeal it emerged that consideration has already been given to identifying suitable locations for air conditioning units. Although I accepted Mr Hinson’s general argument that the court should limit its consideration to objections pursued by the appellant in this appeal, none of which related to Climatic Response, I think it is entirely appropriate, given the nature of the DCP and its emphasis on achieving a best or optimum balance and the inter-relations of elements and their design objectives in the development code, to resolve an issue raised under one element by adopting a solution suggested under another one. The court was told that Mr Green’s house has no (or no functioning) air conditioning, which is suggestive of there being those who can tolerate “tyre slap” – one more confirmation of the desirability of leaving the noise/air conditioning issue to be resolved by the ultimate consumers.
Part Closure of Holman Street
Holman Street is presently trafficable by vehicles as far as the Brisbane River in the east. The proposal as approved provides for the exclusion of traffic for the last few metres in the east (by movable bollards of some kind) and the landscaping of that area, which would remain available to pedestrians. Some closure would be inevitable if the riverside walkway were continued to Captain Burke Park in that location. The notice of appeal contends that the approved development does not apply with the DCP as inadequate consideration has been given to the effect on the public’s use of the area, including Captain Burke Park, as result of this partial closure of Holman Street. It is also asserted that the Council has acted beyond its powers in approving road closures as part of the approval. The reference in schedule 10 of Exhibit 16 is to DCP 3.16.2 (a) which refers to external works required in relation to frontages of sites. Schedule 10 complains that the relevant drawing suggests approximately two thirds of the Holman Street frontage of Lot 9 running back from the Brisbane River is to be closed. Doubt is cast on whether procedures for closure of the road have been gone through. The appellant’s substantive point is “that Holman Street must remain open through to the Brisbane River in order to provide public access to, and public parking for, Captain Burke Park.” It is not at all clear that any road has been closed. Schedule 10 of the Integrated Planning Act 1997 defines road as having the same meaning as in the Transport Infrastructure Act 1994, and helpfully sets out the definition under the latter in a footnote:
“ Under the Transport Infrastructure Act 1994-
‘ “road” means-
(a) an area of land dedicated to public use as a road; or(b) an area that is open to or used by the public and is developed for, or has 1 of its main uses, the driving or riding of motor vehicles; or
(c) a bridge, culvert, ferry, ford, tunnel or viaduct; or
(d) a pedestrian or bicycle path; or(e) a part of an area, bridge, culvert, ferry, ford, tunnel, viaduct or path mentioned in paragraphs (a) to (d).’
As presently advised, I think that a road is no less one because its use may be limited to cyclists or pedestrians. If there does occur any unlawful closure of a road, no doubt the ordinary remedies are available to any concerned person to rectify the situation. It does not seem appropriate for this court to decide a development application on the basis of a point of this kind, which has not been properly argued. Particularly is this so, given the terms of Exhibit 37, a letter recently obtained by the co-respondent’s solicitors from the Queensland Department of Natural Resources and Mines which is the relevant State authority. The letter advises that “as roads are under the control of Brisbane City Council through legislation, this Department does not oppose the proposed works being carried out as approved by Brisbane City Council and has no interest in whether the works are performed or not.
General
An unusual feature of this appeal has been that the concerns expressed by Mr Green have little or nothing to do with his own amenity or the amenity of others in and about Holman Street and Anderson Street (excluding those who reside in the co-respondent’s project). It is not said he will lose views, or be shut out from the sky. Mr Hinson sought to take forensic advantage of a table Mr Green incorporated in his submission to the Council opposing approval by it of the Development Application documenting “some 50 aspects of the Development Application that directly, or indirectly, conflict with the stated design objectives and requirements of the DCP”. (See Exhibit 2 pages 146 – 216 for the objection – the table is pages 148-49). The table offered Mr Green columns in which he could place a tick to show whether the conflict would be resolved by an amalgamation of the applicant’s sites (ticked in 46 instances of the 50) and another column in which he could indicate whether the conflict was significant. As to the terrace houses, there was no claim of significance in relation to site cover, streetscape: building appearance, garbage bins, delineation of units, roofscape, car parking for visitors, car parking for residents, car parking: visibility from the street, or car parking: under cover parking entrances. I do not consider Mr Hinson’s point as one that destroys, or even weakens the appellant’s case in the appeal. This jurisdiction is one in which litigants may well find they are precluded from pursuing the arguments they feel most strongly about, so that they are driven to resort to other arguments which might assist them to achieve the desired outcome, even though, until fully advised, they had not thought it necessary or appropriate to run with those arguments.
Mr Haydon in his closing address relied on decisions in this court in which development applications were rejected because, in one case the plan of the house unreasonably affected the amenity of the area: Kwok v Brisbane City Council (2001) QPEC 050, per Judge Skoien and in another (Des Forges, per Judge Brabazon QC) “the legitimate expectations of the surrounding residents have not been sufficiently respected.” In such cases, the court may be expected to be sympathetic to the interests of those who already are residents of an area, whose amenity is going to be destroyed by some inappropriate new development. That is not the case made here or, if it is the case sought to be made, it is far from being made out. It is not to the point in this case to refer to the expansive view of the concept of amenity confirmed in Broad v Brisbane City Council (1986) 2 Qd R 317.
The case that is argued is that the co-respondent, specifically in relation to the terrace houses, is proposing a cramped, sub-standard development, and that those who will suffer are the future residents. Typical of the case made is Mr Robbins’ comment that “the overall effect on the residents will be the provision of constrained and pokey outdoor spaces providing a low standard of residential amenity and a clear perception that too much has been squeezed on to the land. That is, the land has been over-developed.” The question is whether what has been done is acceptable, given the constraints. Mr Robbins says Lot 7 “is considered to provide a poor level of residential amenity due to its location. Consequently, the opportunities to create a development consistent with the stated aims of the DCP (section 1.3) are severely constrained.” He goes on to refer to domination of the site by the visual bulk of Story Bridge, screening from the river by higher development proposed to the east, the Council storage yard on the west. He says “poor visual outlook will be compounded by degraded access to light and air as a result of surrounding and overhead development. The foregoing considerations result in a poor level of residential amenity to which the design response proposed provides no significant improvement.” Mr Robbins may be seen as on the right track, although he may be making too much of it. I am not rejecting the more favourable views of other experts. The difficulty for the appellant’s position is that the site should not be allowed to be sterilised. The alternative proposals suggested in general terms by Mr Robbins would, I think, be much more costly to develop and offer only marginal, if any improvement – there would be no improvement in views, for example. I would expect the co-respondent, if it decides to proceed with the terrace house project, to have no difficulty in locating eight purchasers who would be happy to live there. There will be people willing to trade off space (especially outdoor space, in which they may have no particular interest) for convenience and other advantages.
I acknowledge that it is open to this court (as it was open to the Council) to reject a development proposal on the basis that it is substandard in the amenity available to putative residents. Mr Haydon referred me to Herbert v City of Geelong (1989) 38 APA 10, where the Tribunal’s reasons at page 16 state:
“2. Occupier amenity
The appellant did not adequately address this issue. This tribunal is of the view that the occupier’s amenity of the proposed development is not adequate to satisfy the requirements of the locality. Private open space for proposed units 1 and 2 although technically meeting the requirement does not in fact meet them as it is separated. Each unit should have the minimum area in one contiguous locality which should include both the private open space and a service yard. The omission of unit 2 would permit unit 1 to be better located at the front of the site facing Balliang Street and permit private open space and service yard satisfying the criteria under both heads to be contiguous.
The proposed visiting carparks located in front of units 3 and 4 are in the tribunal’s view an intrusion on to the occupiers’ privacy. They would tend to be used by those occupiers rather than generally be regarded as visitor carparking. It is therefore considered that the visiting carpark be relocated in the area formerly occupied by unit 2. The relocation of those carparks will increase those units’ privacy.”
In this Court there is DHG International Pty Ltd v Council of the City of Gold Coast (1994) QPLR 107. There, concern was felt that proposed tourist accommodation might come to be used for long term accommodation – for which it could be considered unsuitable. Quirk J said at 109:
“It is important to remember that rights which flow from an approval of this kind are not personal to an owner. The planning authority and this Court must always have in mind that a proposal must be examined on the understanding that the ownership of land may change at any time for any number of reasons.
The consequences for the community of the planning decision however endure and the assessment of a proposal should not be influenced in any major way by considerations personal to an applicant.
It is more important to look at the proposed development itself, its design and other features to assess whether the probabilities are that it will function in the way that it is contended. The planning authority (and the Court) must also be alert to other uses (and their effect on the community) that might be made of the land without the need for any further town planning consent.
In this context I was impressed by the evidence of Mr Humphreys. As he pointed out, an approval of the proposal would put in place a development that was fundamentally of a residential kind. Despite the disincentives to which Mr Holland drew attention, there is no doubt that there are members of the community who would, if circumstances dictated it, use the facility for other than short term use. No planning controls would be in place to prevent this and the result would be, one which, in the opinion of both town planning consultants who gave evidence, unacceptable.I am satisfied that the concerns of the Local Authority in relation to this proposal are justified and that the very real possibility of this residential development being used for other than short term tourist accommodation stands in the way of its approval.”
Consideration of the cumulative effect of concerns, which individually might not render a development proposal unacceptable, led to success of a submitter appeal in Des Forges; here, it does not, for Holman Street or Anderson Street.
The co-respondent has satisfied the onus which it bears of establishing that its proposal, whether or not the absolute best that could be devised, represents an acceptable use of its site(s). The nature of the DCP is such that, in my opinion, conflict with it is not established, so the court does not get into the exercise contemplated by s4.13(5A) of the Local Government (Planning and Environment) Act 1990 of seeking countervailing planning grounds. The court is directed to this by sections 6.1.28 and 6.1.30(3) (b) of the IPA; the relevant planning instruments (the Town Plan for the City of Brisbane 1987 (as amended from time to time) and the associated Kangaroo Point Peninsula Development Control Plan (discussed extensively above) constitute a transitional planning scheme: Section 6.1.3 of the IPA.
Did the Application require consent of the road owner?
The last issue requiring resolution is a fundamental one, relating to Holman Street. The road reserve was not included as land to be developed pursuant to the Development Application which, accordingly, does not include any consent of the Department of Natural Resources. In the appellant’s submission, the Development Application was not properly made, having regard to s3.2.1 of the IPA. This provides in sub-section (3) that the approved form (in which each application must be made):
“(a) must contain a mandatory requirements part including a requirement for –
(i) an accurate description of the land, the subject of the application; and
(ii) the written consent of the owner of the land to the making of the application.”
Although sub-section (8) allows the assessment manager to treat as properly made an application which was not (after consideration), sub-section (9) enacts that this indulgence cannot apply unless the application contained the written consent of the owner of any land to which the application applied.
The application and approval identify work to be done in Holman Street, specifically by way of landscaping. As noted above, the DCP in the Development Code deals in 3.16 with the element of Required External Works. It is a common and accepted requirement of development proposals that works off the site proper be constructed, for example, footpaths. I know of no basis on which it could be said that in such case a footpath was “land, the subject of the application” or “land to which the application applies”, assuming there is any different connotation. In my opinion the situation is completely different from one in which construction integral to a developer’s proposal is going to occur on land other than the developer’s. Compare Lewis v Mareeba Shire Council (2000) QPELR 432, Edwards v Douglas Shire Council (2000) QPELR 375 and Mitchell Ogilvie (Mitchel Ogilvie Menswear) v Brisbane City Council (2000) QPELR 414. In this case, I think the External Works are of a kind which generated no necessity for inclusion in the Development Application of any consent from the “owner” of the Holman Street Road Reserve. The case may be distinguished from Edwards, for example, where (perhaps through inadvertence) a porte cochere was shown in the plans as partly constructed on the Macrossan Street road reserve in Port Douglas.
These reasons will be distributed to the parties to afford them an opportunity to work out suitable orders to achieve the court’s intended outcome that, essentially, the appeal is unsuccessful, but revised conditions have been shown to be appropriate.
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