Grieves v TCC - [2009] QPEC 142

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Grieves v TCC & Anor [2009] QPEC 142

PARTIES:

Donna Grieves
(Appellant)

And

Townsville City Council
(Respondent)

And

HTR Pty Ltd ACN 124 993 951
(Co-Respondent)

FILE NO/S:

P&E 93/2008

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Townsville

DELIVERED ON:

05 November 2009

DELIVERED AT:

Townsville

HEARING DATES:

13, 14 & 28 August, 2008; Written Submissions 16 September, 2008, 10, 26, 27 & 28 October, 2008 and 11 December 2008.

JUDGE:

Durward SC DCJ

ORDERS:

1. Appeal dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING - MULTIPLE DWELLING - TRADITIONAL RESIDENTIAL PRECINCT - Whether proposed development consistent with character and desired environmental outcomes in planning scheme
ENVIRONMENT AND PLANNING - INCONSISTENCY - Whether proposed development inconsistent in height, residential density, setbacks, size and bulk, amenity considerations and planning need
ENVIRONMENT AND PLANNING - EXISTING APPROVAL - Extent to which smaller scale multiple dwelling approved under former legislation and planning scheme relevant on proposed development under new planning scheme

ENVIRONMENT AND PLANNING - INTENT OF PLANNING SCHEME - Proposed development and infill of vacant site among existing multiple dwellings in part of street otherwise providing detached dwellings - relevance of existing multiple dwellings to construction of new legislation and planning scheme
ENVIRONMENT AND PLANNING - CONFLICT AND CONSTRUCTION - Townsville City Plan 2005 - resolution of conflict with planning scheme - construction of legislation and planning scheme
ENVIRONMENT AND PLANNING - JUSTIFICATION - Whether sufficient grounds to approve proposed development despite conflict

LEGISLATION:

Integrated Planning Act 1997 ss. 2.1.23, 3.5.14, 3.5.5; Local Government (Planning & Environment) Act (1990) s. 4.4.5A; Townsville City Plan 2005

Grosser v City of Gold Coast (2001) 117 LGERA 153; Weightman v Gold Coast City Council (2003) 2 Qd R 441;
Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337; Luke & Ors v Maroochy Shire Council & Anor (2003) QPELR 447; SDW Projects Pty Ltd v Gold Coast City Council & Anor (2007) QPELR 24; Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78; Heron Building Group Ltd v Logan City Council & Anor (2002) QPELR 303; Broad v Brisbane City Council (1986) 2 Qd R 317; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Tadpoles' Early Learning Centre v Noosa Shire Council [2008] QPEC 9; Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPELR 126; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 356
Fitzgibbon Hotel Pty Ltd v Logan City Council (1997) QPELR 2008; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; BC for Vogue on Broadbeach v Gold Coast City Council (2006) QPELR 585; Rowley v Caloundra City Council [2008] QPEC 99; Aria Property group Pty Ltd v Maroochy Shire Council [2008] QCA 169 Sia & Anor v Brisbane City Council & Ors [2009] QPEC 8; Coener v Maroochy Shire Council [2001] QPELR 211; Handley v Brisbane City Council [2005] QPELR 80; Kotku Education & Welfare Society Inc v Brisbane City Council [2005] QPELR 267 H A Bachrach Pty Ltd v Minister for Housing (1992) 80L GERA 230; Norris Clarke & O'Brien Pty Ltd v Brisbane City Council [1996] QPELR 262; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41

COUNSEL:

ANS Skoien for the Appellant
RA Quirk for the Respondent
HD Houston for the Co-respondent

SOLICITORS: Wilson Ryan & Grose for the Appellant
TCC Legal Services for the Respondent
Connolly Suthers for the Co-respondent

The appellant (a submitter) appeals against the decision of the respondent to approve a Development Application for a Development Permit for Material Change of Use for a multiple dwelling – a nine unit residential development – at 334 Stanley Street West ("Stanley Street"), North Ward in Townsville, described as Lot 5 on EP 2139 and Part Easement over Lot O on SP 181724, County of Elphinstone, Parish of Coonambela ("the site").

The Site

The site is on the foothills or slope of Castle Hill, a dominant feature in the city.

The issues raised on the appeal are:

Compliance with City Plan 2005
Conflict with the planning scheme
Relevance of existing infrastructure and a 2005 approval
Building height
Setback requirements
Residential density
Streetscape - scope, bulk and visual amenity
Traffic movement
Noise impact
Failure to demonstrate planning need

The currently vacant site of about 1794m² slopes from the rear boundary to the street and a natural gully runs through it. To the north it fronts Stanley Street and to the south an unmade road reserve on the slope of Castle Hill. The street has a split carriageway with allotments abutting it north and south, with the wide median strip separating the development on the north and south sides.

The Objections

The appellant, Mrs Grieves, owns and occupies a unit at 336A Stanley Street. She was a submitter. Mr Murray owns and occupies the residence at 336 Stanley Street. He was not a submitter. These properties share the boundary to the west of the subject site at 334 Stanley Street. A statement from each of them was tendered without a requirement for cross-examination, subject to objections to parts of them put on the record by Mr Houston for the co-respondent.

Mr. Murray

Mr Houston submitted that the obstruction of views was not an issue on the appeal and Mr Murray's references to an analysis of the plans and what he termed "traffic movement" was a matter for expert opinion.

Mr Murray, so far as may be relevant, stated that he had "no objection to further multiple dwellings being constructed in Stanley Street and on the site at 334 Stanley Street", but expressed reservations about the size and bulk of the property development.

Mrs. Grieves

Mr Houston submitted that the expressed limits on street parking availability, over development of the site, increase in volume of traffic, level of noise and expectation as to whether or not there would be an approval of the proposed development, are either matters for expert opinion or otherwise not probative in any way.

Mrs Grieves expressed similar reservations to those expressed by Mr Murray about the size and bulk of the property development and her belief that the site was being over developed. She accepted that development of the nature and extent of six units may be undertaken on the site.

These concerns probably articulate the gravamen of the appeal from her perspective: in simple terms, the property developer was trying to do too much on the site.

That is probably the extent to which the statements are relevant for the purpose of this appeal. Mr Houston's objections are in my view properly made and sound.

Proposed Development

Accommodation blocks comprising 3x bedroom units and 6x4 bedroom units; lower at the front (3 storeys including parking level) and high at the rear (4 storeys); 2 covered parking spaces per unit with adjacent store rooms; access from Stanley Street including consent use of an easement to the north west (part of an existing driveway to an adjoining property); landscaping a verge in front of site and on-site between the two buildings; and relocation of storm water easement and building of new stormwater infrastructure.

2005 Approval

In March 2005 a Development Application was made for a similar but smaller six unit residential development. The Decision Notice in respect of that Development Application was issued 7 March 2005. The approved Multiple Dwelling the subject of that Development Application comprised two buildings similar to those now proposed and the subject of this appeal.

Appeal Grounds

The grounds of appeal were supplemented by further and better particulars (which appear summarised by me, in italics):

1. The development, the subject of the application conflicts with the respondent's town planning scheme.

No sense of place or community or character of the area. Maximum residential density exceeded, stipulated building height requirements exceeded. Stipulated setback requirements exceeded, no promotion of or contribution to the streetscape of the amenity of the surrounding area and excessive bulk and size.

2. The appellant alleges that the proposed development exceeds the height requirements of the respondent's town planning scheme.

Excessive height - from a northern or eastern aspect it appears five or six stories high.

3. The appellant alleges that the proposed development is identified as an inconsistent use within the Traditional Residential Precinct of the respondent's town planning scheme.

Multiple dwellings are an inconsistent use in the Precinct which is specifically for detached dwellings and density height bulk and scale are non-compliant.

4. The appellant alleges that the proposed development has a site density which exceeds the requirement of the respondent's town planning scheme.

Site density is far in excess of the planning requirements.

5. The appellant alleges that the proposed development does not comply with the set back requirements of the respondent's town planning scheme.

The proposed development does not meet the requirements for the front or rear boundary set backs.

6. The appellant alleges that the proposed development is of a size and bulk which exceeds that contemplated by the respondent's town planning scheme.

The excessive height, density and the building design are overbearing and oppressive. Neighbouring properties will have overlooking by the development and a loss of privacy, overshadowing and an overwhelming presence in the street.

7. Sufficient planning grounds have not been identified by the co-respondent or the respondent to justify approval in the light of the conflicts with the respondent's Town Planning Scheme.

The approval of the proposed development is not justified on planning grounds.

8. The appellant alleges that the proposed development will decrease the amenity of the surrounding residential area. The surrounding residential area will be adversely affected by increased noise and traffic resulting from the proposed development.

The scale and bulk of the proposed development does not provide a physical connection between the proposed development and the surrounding buildings.

9. The co-respondent has not demonstrated any community need for this proposed development.

Increase in noise and traffic management and dampening.

10. The appellant may identify other grounds of appeal or particulars prior to the commencement of the hearing of the appeal.

No community need demonstrated and a lack of overwhelming demand for a development of this type in this area.

11. The appellant alleges that the development, the subject of the application, should have been refused by the respondent.

There are too many inconsistencies with the City Plan to justify approval.

12. In the alternative to paragraph 11, the appellant alleges that the application should have been approved with amended conditions

(No further and better particulars given for this item).

Integrated Planning Act 1997

The present development application was lodged under City Plan 2005. A Development Application such as this requires assessment pursuant to s 3.5.5 of the Integrated Planning Act 1997 ("the Act").
"3.5.5. Impact Assessment
(1)   This section applies to any part of the application requiring impact assessment.
(2)   If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following –
(a)the common material;
(b)the planning scheme and any other relevant local planning instruments;
(c)if they are not identified in the planning scheme as being appropriately reflected in the planning scheme –
(i)     state planning polices or parts of state planning policies; and
(ii) for the planning scheme of a local government in the relevant area for a state planning regulatory provision – the provision; and
(iii) for the planning scheme of a local government in a designated region – the region’s regional plan;
(d)any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
(e)if the assessment manager is not a local government – the laws that are administered by, and the policies that are reasonably identifiable as policies applied by the assessment manager and that are relevant to the application;
(f)the matters prescribed under a regulation (to the extent they apply to a particular proposal)."

Desired Environmental Outcomes

The site is shown as urban residential on Map 3.1- Structure Plan supporting the Council’s Desired Environmental Outcomes (DEO).

DEO 3.1 (i) - Settlement Pattern, provides that development will occur in a manner that reflects the structure planned. Implementation strategies for achieving the settlement pattern include:

·Consolidate development around a hierarchy of centres to provide higher levels of access to commercial and community facilities to as many residents of Townsville as possible.
·Prevent the occurrence of unplanned urban sprawl on the City fringes and support the expansion of the urban area in a controlled manner, consistent with a multi nodal pattern (as depicted on Map 3.1).

By way of considering the context of the DEO from a broad perspective, DEO 3.1(e) - Sense of Place and Community provides:
· Ensure new development integrates with the old and respect elements of history.
DEO 3.1(h) - Heritage and Character provides:
· Development complements the prominent character of the City and recognises the need to conserve or enhance areas in places of special aesthetic, architectural, cultural, historic, scientific, social or spiritual significance.

A number of broad strategies are identified for achieving a sense of place and community.

Relevant Codes

The proposed development needs to be assessed against various Codes. For present purposes I need only refer to District Code 2 and the Multiple Dwelling Code in these proceedings. The proposed use is described as an inconsistent use in the Traditional Residential Precinct ("TRP"). The Assessment Table (Table 4.1A) for this precinct shows that a multiple dwelling is impact assessable in this Precinct.

District Code -2 – Townsville Inner Suburbs

The relevant overall outcomes for District Code - 2 (DC-2) in s 4.31 are:
a)          The district is predominantly residential in character, providing for both the permanent and visitor population, and also functions as a frame surrounding Townsville Central City District, accommodating a variety of land uses and building types and styles.
b)         The district provides a variety of residential accommodation, including detached houses, dual occupancies, multiple dwellings and accommodation buildings. Low residential densities occur throughout most of the district with some incursions of medium density housing forms, including the beach side suburb of North Ward, where a higher concentration of medium density residential development is provided in close proximity to The Strand foreshore area.
c)          The significant character housing stock in the district is preserved.
g)The pattern of land use and development ensures residential areas have a pleasant, safe and attractive living environment, provide a variety of residential densities and accommodation styles and cater for the needs of all socio-economic groups
The site is in the TRP. The Overall Outcomes are described at 4.31(1) Specific Outcomes (SO) SO1(a) and include:
·Lands primarily accommodate detached houses on individual lots.
·Non-residential uses serve their local neighbourhood, are associated with residential land use (including such uses as park land, places of public worship and home based business). They do not have significant adverse impacts on residential amenity.
·The maximum residential density of development other than detached houses and dual occupancies was 37 persons per hectare.
·The visual integrity of the ridge lines in the locality is protected.
The height of Buildings and structures are described at 4.32 (2) SO2:
(i) maintains the integrity of the skyline along the major ridgelines connecting Melton Hill to Stanton Hill and Castle Hill;
(ii)is consistent with the preferred character and amenity of the precinct in which it is located; and
(iii)incorporates terraced or stepped built form to protect the ridgeline.
Table 1 lists the maximum height in the TRP as 3 storeys (Fig 1).
The expression Probable Solutions ("PS") is defined in s1.10 of the City Plan 2005 as:
"A probable solution for a specific outcome provides a guide for achieving that outcome in whole or part, and does not limit the assessment manager’s discretion under the IPA to impose conditions on a development approval."
The word "probable" is relevantly defined in the Macquarie Dictionary as "likely": "The Plan", in the use of the term "probable solution", recognises that there may well be other considerations relevant to the issue of compliance with any specific outcome. The probable solution is but one guideline to be considered and called in aid of construction when determining compliance": Rowley v Caloundra City Council [2008] QPEC 99 at [28]

Setbacks and site coverage are described at 4.32 (3) SO3 in the PS:
·PS3.1 – setbacks of buildings from street frontages and boundaries and their site coverage: in summary so far as is relevant, front boundary 6m, side boundary 2m for a building 4.5m to 7.5m; or 2m plus 0.5m for every 3m over 7.5m and site coverage of 50%; and rear boundary 4m.
Residential densities are described at 4.32 (3) SO7 as of a density consistent with the character intended for the locality and provides for a high level of residential amenity.

Multiple Dwelling Code

The Multiple Dwelling Code ("MDC") is described at 6.9. Overall Outcomes are, so far as is relevant, to achieve the following:
(a) Multiple dwellings occur at a density that is consistent with the desired character of the locality and are of sufficient size to meet user requirements.
(b) Multiple dwellings contribute positively to the streetscape and provide a high standard of amenity for residents and neighbours.
Multiple dwellings are defined in Schedule 1 to the City Plan 2005 as:
"[p]remises comprised of 3 or more self-contained dwelling units for short or long term residential purposes …"
MDC-SO2 provides as follows:
"The residential density is consistent within environmental characteristics, character and infrastructure provisions in the locality.
No PS provided."
MDC-SO3 provides as follows:
"Building siting and design takes into account the function of the building, the relationship to adjoining premises, as well as the contextual relationship with the street and locality."
Mr Milford said that the provisions in SO3 - in respect of access parking and street facing units - may be met by the proposed development. Other provisions which were referred to in evidence but which appear not to be controversial include SO6 - texture, colour, roof alignment etc, SO13 - minimisation of direct overlooking to neighbouring properties; and SO14 - noise impacts. These matters were dealt with in the course of evidence but without specific reference to the requirements of the MDC.

The Scope of the Evidence

An inspection of the site was made with counsel after the appellants’ opening and the tender by parties of expert reports.

Evidence in respect of town planning scheme issues in the broad sense was given by three experts: Mr Motti (on behalf of the co-respondent), Mr Milford (on behalf of the appellant) and Ms James (on behalf of the Townsville City Council). They provided separate and joint expert reports.

Evidence for the co-respondent was given on other related issues by Mr Wells (architect), Mr Dederer (on the issue of ‘need’), Mr Holland (traffic) and Mr Brown (noise).

Joint Expert Report

A joint expert report (Appendix E) was prepared by Mr Motti, Mr James, and Mr Milford (with input by Mr Wells). Agreement by all three town planners was reached on the following matters in respect of conflicts with the City Plan:
·The City Plan is a performance based scheme: probable solutions provide one way of achieving the specific outcome of each code.
·The site is included in the TRP, District Code 2 – Inner Suburbs (Map 4.2(a)).
·A Multiple Dwelling in District Code 2 is listed as an inconsistent use within the TRP (which provides for detached houses on individual lots).
·
The maximum residential density within the TRP SO1 of District Code 2 – Inner Suburbs is exceeded.
The town planners agreed with a comment from the architect, Mr Wells, namely that the roof height, rising to the north, provided natural light and cross ventilation to upper floors.

The town planners also agreed about:
·Height, to the extent that the height exceeded that identified in Table 1 of the relevant PS in SO2;
·Site density, setback and inconsistent use - that a multiple dwelling as listed is an inconsistent use, density was exceeded and the PS setbacks in SO3 were not met.
There was no agreement as to:
·whether the development design was responsive to its context and setting;
·whether, by reason of inconsistency with TRP outcomes and the greater density, the development was inconsistent with the desired character for the locality;
·whether through scale, noise and traffic impacts, the residential amenity of the neighbouring residential land use was compromised;
·whether there was a community need established;
·whether there was an inconsistency with SO2 against an alternative design solution that otherwise achieved the desired or expected outcome.
However, in respect of traffic, noise and community need single expert reports were tendered and the witnesses examined.

The Evidence

Mr. Wells

The architect, Mr Wells, stated his conclusions in his report as follows:
"5.0.1 The development proposed for 334 Stanley Street West, Townsville is a high quality multi-residential development providing urban infill between existing multi-level apartment developments.
5.0.2    The cluster of high density development is legible from the street and contained in five sites on the high side of Stanley Street West. The 2005 Approval for high density residential development on subject site adds a sixth site to this cluster.
5.0.3    The subject site is bounded by Castle Hill which dominates the Townsville skyline. The proposed development does not impact on the Castle Hill skyline. It provides a consistency to the existing built form.
5.0.4    The increase in apartment density from six (2005 Approval) to the proposed nine does not detract from the character of the locality or streetscape.
5.0.5    The proposed development does not cause any loss of amenity to the adjoining developments, and provides a positive outcome for the streetscape.
5.0.6    It is my opinion that proposed development provides an appropriate building design and development resolution for the subject site."
Mr Wells described the front building as being 2½ storeys with two apartment levels and a semi-subterranean basement car park, including visitor car bays, storerooms and plant room. There is a recreation area facing to the street. He described the rear building as 3½ storeys with three apartment levels and a car park excavated into the site.

In respect of height (DC-2 SO2 and MDC SO3) he said the integrity of the skyline was not affected and that the multiple dwelling infill character was consistent with SO2(ii) by reference to existing development and the 2005 approval.

He said the character of the immediate area is principally defined by the cluster of higher density development (nos 320 to 336a). The cluster is of itself an essential part of the character of the precinct.

He said the property development maintained a stepped building form (SO2(iii)), consistent with protecting the skyline.

The heights of the two buildings proposed for the site did not comply with the PS. The rear building was 14.4 metres at its highest (RL 59.6 AHD), marginally less than neighbouring property number 336a (RL 60.1 AHD) and not significantly higher than surrounding buildings.

In respect to setback (DC-2 SO3) he said variation to the front setback is due to an angled front boundary line and the extended road reserve. To the east the neighbouring setback is dominated by retaining walls or in one case, a plinth. He referred to the design for the proposed development including a landscape buffer to the front walls. The setback, whilst 1.2 to 4.5 metres over its length is less than the 6 metre requirement, it is compensated by maintaining consistency with the street setbacks. The side setback of the front building complies with the SO. The side setbacks of the rear building exceeded the SO. The rear setback does not impact on the adjacent area, which is the slope of Castle Hill.

He said there was no adverse impact on the streetscape amenity through scale or bulk despite such non-compliance.

In respect of residential density (DC-2 SO1, MDC 00(a) and (b), and SO2) he said there was consistency with the cluster of high density developments between numbers 320 to 336a. It was also, whilst greater than, nevertheless comparable with the density of the 2005 approval.

In respect of streetscape and amenity (DC-2 SO5 and SO6) the proposed development was in a cluster of five existing multi-level buildings. There was a diversified façade and a "considered" landscape design. The scale and height of the front building screened the rear building. The front landscaping improved the pedestrian experience on Stanley Street. There was no overshadowing, the proposed development provided visual infill and connection with the cluster of multi-level buildings, there would be no impact on Castle Hill views, the more substantial development on site is to the rear, there was no impact through "overlooking" and the materials and colours were proposed to add to the visual amenity of the proposed development and the roof forms were varied.

Mr Wells was able to draw and produce to the Court a plan which demonstrated a widening of the driveway to meet the requirements referred to by Mr Holland (infra). He also would draw an awning to comply with the recommendation made by Mr Brown for noise tenuation (infra). He said the property development had no obvious visual impact upon Castle Hill and that the detached dwellings on the south side of Stanley Street had setbacks of less than 6 metres which was not consistent with the requirements in this Precinct.

In cross-examination by Mr Skoien, Mr Wells conceded he had taken no advice from an acoustic engineer with respect to the recreation area. He was questioned about the design and comparisons, RL's and elevations. Mr Wells conceded that the front setback aligned with other unit blocks but not with the detached dwelling to the west of the site. He said that he did not do elevations comparing the proposed development with adjoining developments. He agreed that the building at the rear at number 330 (to the east) was 2.6 metres lower than the building that would be adjacent in the proposed development. He did not agree that the rear building presented what Mr Skoien referred to as a "uniform continuous curtain". He agreed that the proposed development was larger than adjoining developments on both east and west of the site. He agreed that there was no provision for five visitor parking spaces. He was questioned about the slope of the backfill against the basement car park wall in the front building.

Mr. Milford

The application was not supported from a town planning perspective for the following reasons, in summary:
·        The proposal will not contribute to the sense of place of the locality;
·        The proposal does not respond to, recognise, or reasonably conserve views from the street or adjacent properties to Castle Hill;
·        The multiple dwelling does not compliment the character of the locality or the character sought for the locality;
·        The proposal is of a density that is not supported within the locality;
·        The proposal will add to the conception that this part of the precinct is substantially developed for the purpose of multiple dwellings;
·        A multiple dwelling is a land use that is inconsistent with the outcomes sought for the precinct;
·        It is of a height, scale, setback, and intensity that will compromise the amenity of adjoining owners;
·        The proposal will adversely affect streetscape amenity;
·        The development does not provide an orderly or sequenced transition between the adjacent built form;
·        The development is not consistent with the reasonable community expectation of the manner in which the land may be developed;
·        The fact the applicant has a preference for the zone in which the facility should be located is a separate issue to whether the location is an appropriate planning outcome; and
·        There are not sufficient planning grounds to support the proposal despite the conflict.
More specifically, Mr Milford referred to properties on the northern side (other than no 336A) that are detached dwellings and are set back 6m from the road reserve. The multiple dwellings to the east, all 1 to 2 storey (other than the building at the corner of Gregory and Stanley Streets and a 3 storey block to the rear of another block), are set back 4.5 metres. He referred to the 20 parking spaces, 2 within the gated area which he said was an uncommon arrangement (cf Holland, infra).

The height of the proposed development was referred to as follows: the front building - 3 levels including parking, 8 to 11 metres high above natural ground level from Stanley Street, about 1-5 metres from road reserve, 4 metres from the western boundary and with no set back from the eastern boundary; and the rear building: 4 levels, including parking, 14 to 18 metres in total height along the northern facade, set back 1.5 metres from the rear boundary, no set back from the eastern boundary (at the parking level) but three metres (at the accommodation level) and 4 metres from the western boundary.

Mr Milford said there was non-compliance with the DEO: the proposed development was not consistent with surrounding built form in terms of character or scale and did not reflect identification with community and adherent city character. It did not compliment the prominent character of the city and was at odds with the TRP. It was not responsive to Castle Hill and would impede the view of Castle Hill from Stanley Street and from proximate neighbouring properties.

In SO1, whilst there is a mix of multiple dwellings and detached dwellings, the multiple dwellings generally have less scale and density. The approval of the proposed development would lead to a perception that multiple dwelling development is permissible in the TRP.

In SO2, the 4 storeys exceeds the height in the PS. From a distance there is a higher appearance of the built form. No evidence was provided to him concerning the height between the proposed development and neighbouring buildings. The height would affect the view of Castle Hill ridge lines when viewed from Stanley Street or adjacent premises. Hence the integrity of the skyline was compromised.

In SO3, setbacks were below the minimum and in SO5 and SO6 there were no buildings nearby that were over 2 storeys in height and less than the required 6 metre setback at the front.

With respect to the Multiple Dwelling Code, overall outcome (a) involved a perception issue (as referred to previously). The scale and intensity was inconsistent (cf statements of Grieve and Murray, infra). Similar observations were made with respect to scale and intensity under overall outcome (b) and SO2. In SO3, Mr Milford conceded that access, parking and street facing units may meet the probable solution.

Mr Milford concluded that "[T]he proposal substantially conflicts with the planning scheme, and there are not sufficient grounds to warrant the support of the proposal, despite the conflicts."

Mr Milford agreed in cross-examination that the preferred character and amenity for this TRP must be informed by the Overall Outcomes for DC -2. The interruption with the ridgeline of Castle Hill would be evident when one was in close proximity to the buildings. From a long distance he could only speak in general terms from the water on the Bay. The issue with the proposed development was its physical bulk and scale and on-site intensity. He conceded that there can be instances of multiple dwelling uses that will be compatible with the preferred character and amenity of a TRP.

He was cross-examined at length about the issue of ‘character’: He said that the proposed development did not complement the character of its surroundings. He agreed that in Stanley Street there was a separation of the north and south sides; that the buildings on the northern side were about 10 metres below those on the southern side; that the southern side had the multiple dwellings; and that the new detached dwellings on the northern side were “quite large houses”. He denied that in his planning analysis he was applying a more flexible approach to the other buildings, for example in respect of setback. Mr Milford also appeared to disagree with the evidence of the objectors with respect to ‘perceptions’ about an approval for a multiple dwelling on the site (by reference it seems to the 2005 approval).

Ms James

Ms James stated that from a planning point of view, it was considered appropriate to incorporate recommended conditions (to which she referred in the course of her report) and her assessment of the application against the city plan 2005 indicated that the application should be approved subject to that requirement.

Ms James considered that the DEO in the District Code was satisfied: there was consistency with the surrounding area and the site did not have cultural or heritage value. Whilst the multiple dwelling was an inconsistent use, the proposal amounted to an alternative solution. There was no incompatibility with the TRP. The latter "primarily" accommodates detached housing, but multiple dwellings are not excluded.

The proposed 125 persons per hectares was significantly higher than the SO but the proposal had a density within the range of other developments in Stanley Street. The height of the buildings produced a stepped form reflecting topography and maintaining the integrity of the skyline: "it is considered that the surrounding developments are a reflection of the desired character for the precinct and that the proposed development is consistent with the surrounding area".

Bulk and scale were reduced by the split-building design and the stepping back of the built forms. A range of materials were being used and conditions were recommended to be imposed in that respect together with colours. She considered that the proposed development complimented the existing streetscape.

In the Multiple Dwelling Code she expressed the view that the proposed development was consistent with the desired character of the locality. Approval was justified, despite conflict with SO1(a): whilst residential density in the TRP is exceeded, there was consistency with residential density of the surrounding area; the proposed development was responsive to the topography of Castle Hill and integrated with developments in the surrounding area and streetscape, the DEO was not compromised; and there would be produced a consolidation of urban built form that increased infrastructure offerings.

Ms James referred to the large footpath area in front of the site as being "unique" in the streetscape. She confirmed in cross-examination that the parking requirements for the proposed development were nine spaces for residents and five spaces for visitors, a total of 14. in the course of the evidence of other witnesses, there seemed to be a different understanding of the requirements but I accept that the numbers referred to by Ms James are correct. The consequence of that is that the number of car parking spaces in total exceeds the requirements substantially.

In cross-examination by Mr Skoien, Ms James was questioned about the property development in comparison with neighbouring properties in respect of their respective bulk, scale, height, set back and stepping. She maintained her position that there were comparable building forms in those respects in Stanley Street. Mr Skoien also questioned her about a comparison between the proposed development and the hypothetical alternative two detached dwellings which could be built on the site.

Ms James said that the 2005 approval "gives an intent for the site." She was cross-examined upon a comparison of the 2005 approval with the proposed development.

Finally, Ms James iterated that the development application had been assessed against the planning scheme.

Mr. Motti

Mr Motti deferred to other experts with respect to amenity considerations (scale, need, noise and traffic). Mr Motti said that the property development had extensive views across the city and Cleveland Bay. It provided an "infill" in existing development. The residential density was consistent with the environmental characteristics, character infrastructure provided in the locality: that is, multiple dwelling development in a range of building forms.

The height was consistent with that of the 2005 approval and was from a wide perspective, not significantly higher than the surrounding buildings. It did not conflict with desired environmental statements and it complimented surrounding uses and natural features. He accepted that there was conflict with the City Plan 2005 SO1 TRP and District Code 2. The 2005 approval was for a similar building four man scale. The proposed development was stepped up the road rise and had strong road frontage landscaping. It did not compromise the established pattern of development and contributed to the available stock of housing styles appropriate to inner city living. He considered that the proposal responded to topography and hillside location, addressed local amenity and overall was consistent with the planning outcomes for the city. He expressed the view that to the extent there were conflicts there were sufficient grounds to justify approval of the property development.

Mr Motti also referred in testimony to a dis-engagement of the north and south sides of the road by its width and the distance of the vegetated median strip. He said set backs along Stanley Street varied. He did not consider that the integrity of the TRP was eroded. Forms of residential development other than the detached dwellings were not excluded. The southern side of the street from Gregory Street to Kennedy Street has a number of established multiple dwellings. Topography and immediate congruent development along the street were relevant considerations and the site was unique and distinguishable from other relatively flat sites in the city. He thought the gully was a constraint that might have limited suitability and affordability for a detached dwelling.

Mr Motti did not agree with Mr Skoien that as between the two planning schemes there was a great change in this locality. He maintained that the 2005 approval established relevant parameters in respect of set back, building location and height. He agreed that the highest point of the building to the west side was comparable to the existing building on the west side (no 336A) but agreed that on the east side it was 2.5 to 3 metres higher than the existing building to the east (no 330). However he disagreed that the scale and bulk was out of keeping with the streetscape. He referred to no 326 in Stanley Street where a retaining wall and fence presented in his view a "hard face to the street". He considered that the number of units (whether 6 or 9) simply led to amenity considerations.

He agreed with Mr Quirk in cross-examination that there was minor conflict but that multiple dwellings in this location were generally a compatible use. There was no conflict with or compromise of the DEO.

Mr. Holland

An assessment of peak hourly traffic numbers showed flows "typical of traffic flows encountered on residential collectors streets" and pedestrian and cyclist use was greater than the vehicle numbers: "the increase in the traffic flows is due to the development will not be more than 5 vehicles per hour in Stanley Street and 1 vehicle per hour in Kennedy Street."

He assumed that the development had 20 dedicated parking spaces with 5 parking spaces capable of being designated for visitor parking (there are in fact 4, 2 in the secure area and 2 outside). The approval condition required a minimum of 20 parking spaces on site, 5 of which were capable of being for visitors. The driveway should and could be widened to 5.5 metres within the available width of the easement to improve access.

Stanley Street was not a major collector street. The increase in traffic flows were insignificant and well within accepted limits.

With respect to the visitor car parks within the gated (secure) area there was a need for a condition that there be an intercom device or something similar provided. That this was an increasingly utilised option in such property developments and in this case was in a practical sense, acceptable.

The landscaping of the verge would eliminate the open drain and provide a safer and more comfortable footpath linking the existing footpaths.

In cross-examination by Mr Skoien he agreed that there was little scope for on-street parking. There was discussion of the dual role of one of the outside car parks as a wash down area. He did not consider that there would be a conflict if a general expectation of greater visitor use occurred after dusk. He referred to the need for 5 visitor car parks on-site. One additional car park could be sited to the rear of the development. The driveway at the intercom point was of a satisfactory gradient and traffic movement on the driveway was not a matter of particular concern to him, whilst not perfect it was not unacceptable.

In re-examination Mr Holland said that any parking on the street would add to the parking already used by persons who left their vehicles there whilst climbing up and down Castle Hill.

Mr. Brown

Mr Brown concluded that "the level of noise emitted by each of these sources of noise will be of no material concern or can be easily dealt with by the application of appropriate conditions or by minor or caustical upgrade to the design of the development."

(i) Noise from construction was manageable by control of hours of construction in accordance with legislation.

(ii) (iii) Noise from non-site movement of vehicles was of no material significance to the neighbouring properties to the east or west. The 2005 approval provided for 15 parking spaces and use of the easement for access. The proposed development provided for 20 parking spaces and use of the easement for access. The noise level generated by traffic movement on-site would remain consistent regardless of the type of development. There was more than the minimum separation of the sources of traffic noise and the neighbouring properties.

(iv) An application of emission standards could control machinery and plant noise. The main source of machinery noise was ducted air conditioning units were plant was contained within the car park.

(v) Noise from residents using balconies and courtyards would be no more than that generated from outdoor areas of detached dwellings on-site. "The total area of recreational space for the proposed development may not vary greatly from the total area of the recreational spaces that would be likely to serve 2 detached residences on the site."

(vi) The shared recreational area may require construction of a roofed partial enclosure to attenuate potential noise levels (exhibit 8 drawing). Adjoining properties are in close proximity to this area where recreation is likely to be of a more active nature.

Mr Brown described the awning in cross-examination as being a solid structure as distinct from, at least by implication, shade cloth or sails. The close proximity of residential neighbours on the site he considered would tend to act as a brake on the generation of high levels of noise, through mutual behaviour checks between neighbours.

Mr. Dederer

Mr Dederer said that North Ward was a desirable residential area and the demand for multiple dwelling residences was strong and continued to be strong, particularly in well located sites in and around the CBD. The proposed development was likely to be met by high market demand at the upper end of the market. He said in cross-examination that his analysis was from a demand perspective not a planning perspective.

The Planning Intent and Construction of the Act - Discussion

The construction of the City Plan against the planning legislation is a matter for judicial determination. The Court must consider the merits of the Development Application against the relevant provisions of the planning scheme.

A number of the witnesses referred to the "planning intent" of the respondent and to construction of the planning scheme: Ms James, Mr Motti and Mr Milford. However such opinions by town planners are an irrelevant consideration: H A Bachrach Pty Ltd v Minister for Housing (1992) 80L GERA 230; Norris Clarke & O'Brien Pty Ltd v Brisbane City Council [1996] QPELR 262 and Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41.

The 2005 approval which commenced under the repealed legislation (Local Government (Planning & Environment) Act 1990) and was processed in a transitional period in the early stage of the adoption of the City Plan 2005, after the commencement of the Act.

Was there a change in the respondent's planning intent with the commencement of the City Plan 2005? A multiple dwelling is an inconsistent use in the TRP. In my view the 2005 approval does not give the appellant a "leg-up" in the assessment of the proposed development, which must be considered against the Act, and the City Plan 2005. What passed muster under the repealed legislation is irrelevant. The 2005 approval and the timing of that development application is merely peripheral information. It has such relevance as might be afforded it on a simple comparative basis, as is the case with the existing developments in Stanley Street, in the context of the planning scheme. It remains for the Court to assess the proposed development on its merits against the relevant provisions of the City Plan 2005.

In Grosser v Council of Gold Coast (2001) 117 LGERA 153, White J referred to the proper approach of the Planning and Environment Court to matters of planning policy. It is a self-limiting approach, at least when considering town planning matters. Her Honour continued:
"It is not this Court's function to substitute planning strategies … for those which a Planning Authority in a careful and proper has to adopt (sic) …"
Her Honour stated that:
"[44] It is well recognised that a town planning appeal Court made part from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid …", and
"[49] Section 4.4(5A) has a simple two-stage process which first requires the identification of conflict with the Strategic Plan then, if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict."
"Conflict" is considered against the substance of the planning scheme, not against a provision in isolation from the whole and the conflict must be plainly evident. The reference in Grosser to s 4.4(5A) is to the repealed legislation. The section, so far as is relevant, is materially the same as s 3.5.14 of the Act.

In Central Equity Limited v Gold Coast City Council (2007) QPELR 356 Wilson SC DCJ referred to compliance with planning schemes in the following terms:
"[16] Although Ch 2 of the planning scheme specifies that "All Performance Criteria are considered separate and distinct, in light of the overlap between the matter addressed by the numerous PC in the Codes which are relevant here, it would be excessively mechanical to simply consider each discreetly and, in a case involving purported compliance in a way different from that proposed by the Acceptable Solution, give each a separate positive or negative response. Undertaking the process in that way would also be entirely discordant with ordinary, common modern principles of statutory construction: Project Blue Sky v ABA [1998] 194 CLR 355.
[17] For these reasons it is appropriate to consider compliance with PC concerning matters like site cover in concert with those which touch what are plainly, under the Codes, concerns of a similar type: here, those directed towards setbacks, plot ratios and, (because of the affect the visual elements inherent in amenity issues arising in regard to those topics), landscape."
The corresponding section to s.4.4(5A) in the repealed legislation is s.3.5.14 of the Act which provides as follows:
"3.5.14 Decision if application requires impact assessment
(1)       This section applies to any part of the application requiring impact assessment.
(2)       If the application is for development in a planning scheme area, the assessment manager's decision must not -
(a)       compromise the achievement of the desired and environmental outcomes for the planning scheme area; or
(b)       conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict."
One of the differences between the two legislative provisions is the use in the Act (in its most recent form) of the expression "sufficient grounds" in lieu of the expression "planning grounds". It is arguable that "sufficient grounds" implies a wider test under the Act.

In Weightman v Gold Coast City Council (2003) 2 Qd.R. 441 the Court of Appeal held that the requirement imposed by s 4.4(5A) of the repealed legislation was mandatory and not merely directory. Atkinson J applied the following test:
"[36]   In order to determine whether or not there are sufficient planning grounds to justify proving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:
1.        Examine the nature and extent of the conflict;
2.        Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3.        Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict."
In Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R. 273, the Court of Appeal analysed the issue of conflict between the decision and the scheme and the test applied in Weightman:
"[23] 'Conflict' in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike 'compromise' in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that 'the assessment manager's decision must not … conflict with the planning scheme' requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.
[24] Section 3.5.14(2)(b) differs in several respects from s. 4.4(5A) and s. 4.13(5A) of the Local Government Planning & Environment (Act) 1990, provisions which may be regarded as its predecessors. Under those sections the subject of the putative conflict was under the application; here it is the assessment manager's decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the grammatical structure of the two sections is significantly different. These differences mean that care must be used in applying the cases decided under those provisions to the present section."
Fryberg J (with whom Holmes J agreed) referred to the process approved in Weightman in respect to the repealed section. However, he said it would "[be] a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification"; and "[T]he purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case" (at page 286 and 296 respectively).

In Westfield Management Ltd v Pine River Shire Council & Anor (2004) QPELR 337, Britton SC DCJ said with respect to the construction of planning schemes:
"[18] I accept that the following principles apply to the construction of planning schemes:
(a)       they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;
(b)       they should be construed as a whole;
(c)       they should be construed in a way which best achieves the apparent purpose and objects;
(d)       in the light of the proscription against prohibiting development contained in IPA (s. 6.1.2)(3);
(e)       statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;
(f)        a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;
(g)       a Strategic Plan should be read broadly and not pedantically;
(h)       although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;
(i)        a conflict alone may not have the effect of ruling out a particular proposal;
(j)        implementation objectives must be read sensibly and in context. They are but a function of the principle objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent."
(Citations have been omitted from the cited passage).
In Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447, Wilson SC DCJ referred to the sufficiency of planning grounds, notwithstanding conflict with the planning scheme:
"[103] IPA s. 3.5.14(2)(b) provides that the assessment manager's decision (or, in this case, the decision of this Court) must not conflict with the planning scheme unless there are sufficient planning grounds to justify the decision. The existence of conflict is a question of law. Any conflict said to arise must be plainly identified but that is a process undertaken by looking at the scheme as a whole, rather than isolated provisions. The word 'sufficient' refers to the weight to be afforded on any particular ground which is advanced as a reason for approval, despite conflict; and the phrase 'sufficient planning grounds' refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which relate to the merits of the application."
In SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24, his Honour Judge Rackemann referred to the use of the codes in planning schemes:
"[46]    The codes in the 2003 planning scheme follow a familiar 'performance based' structure, similar to codes in other IPA planning schemes. The codes commence with a statement of purpose. The codes also identify the development to which applies and then contain 'development requirements,' which are set out in a table of Performance Criteria and Acceptable Solutions. The planning scheme provides that:
'Development proposals must comply with the performance criteria to meet the objectives of the planning scheme and ensure that the DEOs are not compromised.
…
It is desirable that code assessable development comply with the acceptable solutions to ensure that each performance criterion is met. However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criteria, to Council's satisfaction. Where no acceptable solution is provided for a performance criterion in the code, the development must provide its own solution to meet that particular performance criteria.'
[47]     Statements to similar effect can also be found in other IPA planning schemes which adopt performance based codes. The performance criteria are generally outcome focussed, while the acceptable solutions indicate a 'desirable' way to 'ensure' compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.
[48]     It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a 'relaxation' or a 'dispensation'. It is another way of achieving compliance with the relevant performance criterion."
The appellant placed some reliance on Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78 where (so far as is said to be relevant) his Honour Judge Rackemann said:
"[18] [I]t does not provide a satisfactory basis for allowing the current appeal. The role and function of the Court, in an appeal of this kind, is limited. This appeal is not an appropriate vehicle for reconsidering the correctness of the zoning of the area generally under the previous planning scheme or whether it should have been maintained in the current planning scheme. The decision to change the zoning when the new planning scheme took effect was taken by the responsible planning authority in the scheme making process. The Court's task is to consider the subject development application in the context of that planning scheme and, in particular, the applicable codes. It might be noted that, to the extent the appellants were aggrieved by the change brought about by the new scheme, they had the right to make a development application superseded planning scheme. It was common ground that the subject application is not of that kind."
In my view the latter statement is a re-affirmation of the principles established in the line of authority (some of which I have specifically cited and referred to) about the role of the Court in the construction of planning schemes. The factual circumstances and the issues in Engwirda were different from those in this appeal. There is no issue of or challenge to the content or correctness of the City Plan 2005.

The applicant referred to Heron Building Group Ltd v Logan City Council & Anor (2002) QPELR 303, as a case that determined similar issues, particularly residential density. The application involved a rezoning and a reconfiguration of a single Lot into nineteen Lots. One of the grounds relied on to justify approval of the application was that previous developments had higher densities than those permitted and hence that should extend to the subject application. The Court rejected that approach. The planning scheme intent or strategy was clear and it was not open to the Court to disregard it:
"[d]eparture from clearly expressed planning strategy … involves wider questions to which the respondent must bear in mind when it considers the future planning of the area" (para 17).
This appeal is distinguishable from Heron on both a factual and an issue basis. Multiple dwellings are not prohibited in the TRP, the residual density is one live issue and I have dealt with that elsewhere in this judgment. The issue of need is also dealt with elsewhere in this judgment. It remains that each case, including this case, falls to be determined on its merits.

Mr Houston was critical of Mr Milford's approach to the issue of conflict: that is, his reference to the Precinct rather than to the broader considerations of the City. I agree with Mr Houston and with Mr Quirk in their submissions about the DEO. The DEO, in my view, are an expression in an holistic sense: the quality, attribute, community, or character of the City expressed as "the cultural diversity and identity of the Community and inherent City character." The broad view expressed in the DEO is easily ascertained by reference to DEO 3.1(h) and the number of broad strategies clearly extending beyond the precincts that are provided in a planning scheme (supra).

In my view the intent of the respondent, if that is what is expressed in DC-2SO1 and the TRP, is that it "primarily" accommodates detached houses on individual lots. However, by implication multiple dwellings are not excluded. In fact they exist in what has conveniently and appropriately been called "a cluster" on the same side of Stanley Street as the site, albeit developed prior to the commencement of City Plan 2005.

The site is currently vacant. It was vacant before the commencement of City Plan 2005. It has a major development impediment in the form of a significant drain crossing the property south to north on an easement. The precinct already has a variety of residential accommodation of different building types and styles. There is no issue of the preservation of significant character housing stock. The precinct is predominantly residential in character.

The intent in SO1(a) to which I have referred does not exclude multiple dwellings. It is, through the use of the qualifying word "primarily" a statement of general intent. As his Honour Senior Judge Skoien said in Fitzbiggon Hotel Pty Ltd v Logan City Council [1997] QPELR 208 (at page 212), "[T]o each general proposition there will be particular exceptions." That simple statement remains relevant regardless of the planning scheme to which it is applied.

In my view the fact that the proposed development is a multiple dwelling is not a factor that alone requires an approval to be refused. I do not consider that a multiple dwelling is a matter of conflict with the planning scheme for this precinct. That is not to say, of course, that a multiple dwelling on another site within the precinct would not be in conflict. However, there are particular features of this site which, in my view, justified that finding. There are other considerations, of course, and it is necessary to address those.

Submissions and Discussion

(a)Amenity Issues - Character, Traffic, Noise, Shadowing and Overlooking

The appellant did not call specific evidence in respect to these issues, save for the evidence of Mr Milford about character, but relies on these matters in a general sense in the submission about the visual impact and bulk and scale of the proposed development, it seems to me.

Mr Motti and Mr Milner both were prepared to accept the evidence of Mr Holland and Mr Brown, as experts in their specific areas.

The concept of amenity is one which is subjective in nature. In Broad v Brisbane City Council (1986) 2 Qd.R. 317, de Jersey J said (at 326):
"[t]he concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one's perception of amenity."
In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112, Dodds DCJ said:
"[40] A persons' right to put their land to any lawful use they wish is, in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness … proposed development will often affect existing amenities. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other land holders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity. The weight to be accorded to subjective views can only be judged in light of all of the evidence about the subject …"
"Character" is to be broadly construed. In Rosswallmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73, his Honour Judge Robertson said:
"[40] 'Character' when used in this Planning Scheme and in others, has a wide meaning and must be considered in the context in which the term is used in the Scheme…"[C]haracter is (relevantly) defined in The Macquarie Dictionary as "the aggregate of qualities that distinguish it one…thing from others."
In Tadpoles' Early Learning Centre v Noosa Shire Council [2008] QPEC 9, Judge Wilson SC referred to amenity in terms of the nature of the proposed development. In that case the proposed development was described by His Honour as a "very large building indeed, one which is quite out of character with the other buildings in the neighbourhood" in an area which had, as he also said "… the general appearance of a quiet street of detached houses".

It seems to me that this issue falls to be determined by reference to the evidence of impact, such as it might be, upon neighbouring properties in the context of the proposed development in light of the character of the locality in which it is to be built.

(b)Traffic

With respect to traffic matters, he submitted that there was inappropriate provision for onsite visitor car parking and that the shared driveway, because of the configuration of the entry to the secure car parking under the front building would lead to conflict with vehicles using the driveway to access the adjacent property. He also submitted that there was a non-compliance issue in that there were only four visitor parking spaces rather than five as required in the planning scheme and that one of those four spaces was also a wash-down bay. He also submitted that the location of two of the four parking spaces in the secure area was unacceptable and that there was some concern about the intercom system in that it would need to be connected, inferentially, to all of the units in both of the buildings if it were to work properly.

So far as that latter matter is concerned, it does not seem to me that that was an issue canvassed in the evidence. Mr Skoien submitted that the traffic impacts at whatever level they may be were a direct consequence of the intensive development of the site.

In so far as traffic was concerned, Mr Quirk submitted that the widening of the driveway as recommended by Mr Holland was achievable and the number of car parks was, in his submission, compliant with the minimum number required and that so far as traffic noise was concerned there was simply no issue on the evidence.

So far as the parking is concerned, the City Plan required 14 parking spaces (9 + 5 visitor spaces) and the proposed development has 20 spaces. I do not think that there is any issue about non-compliance in that respect.

The location of visitor car parking spaces in the secured basement area was not a ground of appeal. However, it seems to me that it is neither unreasonable nor inappropriate for those parking spaces to be located within the secured basement area of the front building. There was evidence that it was not an uncommon practice in other cities, for example, in the Gold Coast, in combination with an intercom connection. See BC for Vogue on Broadbeach v Gold Coast City Council [2006] QPELR 585 per Griffin DCJ at [18 to 25].

(c)Noise

In so far as noise impacts were concerned, Mr Skoien relied on what he expressed as being the potential increase which would have a negative effect on neighbouring properties.

Mr Quirk submitted that the proposed development would not create any unacceptable intrusions into the privacy of those in the surrounding properties. He supported the imposition of the conditions recommended by Mr Brown so far as noise was concerned and submitted that the noise levels would not be of such volume so as to create an unacceptable impact on neighbours.

Each of the issues identified by Mr Brown in his report were addressed in evidence and Mr Houston's submission was that, subject to the construction of the acoustic awning recommended by Mr Brown, all of the other issues dealing with the potential source of noise were of no material significance. The noise from mechanical plant and equipment could also be remedied in accordance with an appropriate condition.

(d)Need

Mr Dederer gave evidence about the level of demand for accommodation such as that to be provided in the proposed development. He based his opinion on an industry view rather than upon planning views. I accept that the question of need in a case such as this is the "planning need" rather than the need of the market. Mr Skoien submitted that there was no basis for any finding of any need for the proposed development.

However, the evidence of Mr Dederer was that there was likely to be a high market demand for the type of development proposed: that is, at the higher end of the market. Mr Dederer's evidence really is a component of the broader concept of community need which was addressed by Mr Motti in his report where he referred to the proposed development contributing to the variety of available residential accommodation in the District and otherwise complimenting housing style and urban renewal close to the CBD. The community need was not addressed by Mr Milford and Mr Motti was not cross-examined about that particular matter. Need does not necessarily have to be established in order to have a development approved. It is merely one factor amongst many.

In Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126, the Commission Punity or planning need was described as follows (at 131):
"Need in cases such as this, does not mean pressing need, critical need, widespread desire, or anything of that nature. A thing is needed if its provision taking all things into account, improves the physical well-being of the community."
See also Skoien DCJ in All-A-Wah Car park v Noosa Shire Council (1989) QPLR 155 (at 157 to 158); and Luke & Ors v Maroochy Shire Council & Anor (supra)
Need is a "relative concept to be given greater or lesser weight depending on all of the circumstances which the planning authority was to take into account": Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 at 354. I do not consider need in the planning sense as being a matter of great weight, in the circumstances, as a factor in the determination of this appeal.

I accept the evidence of Mr Brown and Mr Holland and the recommendations they have made which I find are acceptable and more likely than not will work. In my view there will be no unacceptable impact.

(e)Height

Mr Skoien submitted that there was no pictorial or photographic evidence showing the relationship of the proposed development within the context of the streetscape of Stanley Street, the adjoining developments and the appearance of Castle Hill. I disagree with that submission. In my view looking at the evidence as a whole, those contextual relationships are adequately described both in the other documentary and testimonial evidence.

Mr Skoien submitted that the proposed development would "stand taller than the existing development on either side" of Stanley Street. He referred to the greater height of the rear building in comparison to the adjoining properties to the east and west. He referred to the comparable height of the front and rear building in the proposed development, the rear building being in a sense level at its base with the top of the front building. He was also critical of the base level of the front building, which one ignores the sloping fill applied to the bottom half of the bottom parking level, commenced above the height of the footpath. He said the proposed development would lack any form of human scale. He submitted that the balance of the bulk and scale of the proposed development would be unique in the precinct and out of character with it.

The two performance criteria in issue with respect to height are in DC-2 SO2 and MDC, SO3. In my view reference to the integrity of the skyline if it refers to ridge lines is irrelevant because the proposed development does not have any relevant impact. The stepping in the built form in the proposed development seems to me to comply with the SO and whilst there are differences in the heights as between the proposed development and the adjoining multiple dwelling structures, the height is not so great as to create an incongruous or irregular impact.

The appellant submitted that it relied upon PS 2.1 of DC-2 SO2: that is, the site has a 3 storey maximum height. The use of the word "maximum" may tend to be misleading: S2.1.23(2) of the Act provides that a planning scheme "[m]ay not prohibit development on, or the use of, the premises; and; [t]he description of a height or a site coverage as a maximum" does not impose an absolute prescriptive limit: Aria Property Group Pty Ltd v Maroochy Shire Council [2008] QCA 169 at [54] per Muir AJ (with whom the other members of the Court agreed. The definition in City Plan 2005 of "storey" does not include a basement car park where any part of the ceiling is not higher than one metre above ground level. There was a good deal of time spent in cross-examination in a debate whether the front building in the proposed development was 2 storeys, 2½ storeys or 3 storeys in height.

It seems to me that whatever the outcome of that debate is and regardless of whether there is an area of fill as part of the slope between the footpath and the front of the basement part of the building, the building is regardless of the definition of "storey", 3 storeys in height. In Sia & Anor v Brisbane City Council & Ors [2009] QPEC 8, his Honour Judge Searles rhetorically referred to the height of the proposal under consideration, that is, "three or four storeys." He said:
"[52]   The appellants suggested that the building was not a three storey but rather a four storey building because the basement extends above the natural ground level.
[53]     Given that this issue arises because of Mr Venn's application of the above mentioned Residential Design Code, which I have found to be inapplicable to the assessment of the proposal, there is no need for me to deal with this issue.
[54]     In any event, if the issue was alive I indicate that I would regard the building as a three storey building having regard to the definition of "storey" in the Planning Scheme. Further, Exhibit 2, the photo montage shows that the building is a three storey building notwithstanding the fact that part of the basement area extends above the ground level."

I agree with that conclusion. The factual matter considered by his Honour is not dissimilar to the discussion that took place in this case.

In so far as the rear building is concerned, it does not comply with the PS. There is some comparability between the highest point of the rear building and that of the adjoining building to the west (number 336a) on the RL measurement. However, the multiple dwelling properties on this side of Stanley Street rise from east to west as the gradient of Stanley Street increases up the hill. Whilst there may be some variation in height and the PS is not met, nevertheless the issue of height is not a factor which mitigates against the proposed development in its position as an infill in an established multiple dwelling part of the street and the height of the proposed development, is consistent with the character of that part of the streetscape.

(f)Density

The proposed development does not comply with DC-2 SO1. Mr Houston submitted that the appellant's submission that there was non-compliance with the overall outcome (a) of the MDC. He submitted that the proposed development complied with the requirement for density that is consistent with the desired character for the locality in the context of that character being reflected in the existing and improved developments for multiple dwellings. Mr Houston's submission was that any conflict could properly be characterised as only minor, given that the density requirements were exceeded in multiple dwellings within that part of the precinct.

Main Beach Progress Association Incorporated & Ors v Gold Coast City Council & Anor [2008] QPEC 307, Rachemann DCJ observed:
"[89] [c]ompliance with acceptable solutions is not mandatory. The "performance based" approach to codes in IPA planning schemes admits of the prospect of alternative solutions which may comply with the planning scheme, by meeting the performance criteria. Because the development requirements only reference the overlay maps in the acceptable solutions, the designations cannot be regarded as absolute maximums, notwithstanding the heading to the building height map. It is for this reason that I observed in Cass v Gold Coast City Council & Anor, that use of the word "maximum" may, unfortunately have a tendency to mislead. Mr Bain QC, for the Council, went further by describing the headings as "inappropriate" and the maps as "indicative only." The maps are not however, irrelevant. They are referenced in the acceptable solutions. While admitting of the prospect of other solutions, the planning scheme regards it as "desirable" that impact assessable development comply with acceptable solutions to ensure that t he performance criteria is met, although there is also the prospect of an alternative solution."

(g)Setbacks

The respondent submitted that Mr Milford had not addressed the performance criteria in respect to DC-2 SO3 and SO5(c) and that Mr Milford had made a number of errors in his evidence concerning this issue. It was submitted on behalf of the respondent and co-respondent that the appellant relied primarily on non-compliance with the PS. It is the front boundary which it seems to me was the main focus in the evidence. However, in Stanley Street there are a number of existing residential dwellings that do not meet the 6 metre setback from the front boundary. The proposed development has at its front a very wide footpath area and road reserve which provides a visual and real setback from the bitumen road and the building alignment at the front is within an acceptable consistency with the multiple dwellings to its east. Whilst the front setback requirement is not met, the extent depends upon the alignment of the road reserve, the development of the landscaping planned at the front reduces the significance of any non-compliance with the setback requirement. In my view there is no adverse impact on the streetscape amenity in so far as setback is concerned.

Specific Findings: The Evidence

I prefer the evidence of Mr Motti and Ms James to that of Mr Milford. I considered that Mr Milford had difficulty explaining the planning rationale for his opinions and that he applied a more rigid measure against the proposed development than with other buildings or considerations in the TRP. There were errors in the report of Mr Milford but I do not regard that as being critical in the assessment of his substantive evidence. The opinions expressed by Mr Motti and Ms James exhibited a more objective and common sense view of the planning issues. I accept the evidence of Mr Wells The building design addresses the planning requirements in a common sense and sympathetic (to surroundings, the character of the precinct and amenity issues) manner and the building design succeeds in its aim of complementing the streetscape and providing a suitable and appropriate infill on a difficult development site to complete the existing cluster of multiple dwellings on the side of Stanley Street that is dominated by Castle Hill. I have previously made findings about the evidence of Mr Holland and Mr Brown.

Findings: the Appeal Grounds and Further and Better Particulars

In the course of the cross-examination of witnesses by Mr Skoien objection was taken to questions about matters said not to have been identified in the appeal grounds. However, the further and better particulars are in many respects not entirely responsive to the grounds and this may have been the basis upon which the questions to which objection was made were asked in cross-examination. There was also reference in submissions about matters being addressed outside the boundaries of the appeal as identified in the Grounds of Appeal, as further and better particularised. In any event, I have been conscious of the content of the Grounds of Appeal as particularised, in my assessment of the evidence and the submissions of Counsel.

My findings on the appeal grounds and further and better particulars are numbered to reflect the Grounds and Further and Better Particulars as numbered 1 to 12 in paragraph [14]. As I have observed, some of the Further and Better particulars are not entirely responsive to the corresponding grounds:

1. I disagree. Whilst ‘maximums’ are exceeded in respect of density and some heights, and some setbacks are less than the minimums provided, I do not regard those matters as amounting to a substantial conflict with City Plan 2005, for the reasons stated elsewhere. I find that the proposed development has a sense of place or community or character of the area, again for the reasons stated elsewhere. In my view it contributes to the streetscape and amenity of the area. I do not accept that there is an excessive bulk or size.

2. Whilst ‘maximums’ are exceeded, that is not a in my view a non-compliance of any significance, if indeed it is at all. I do not accept that the heights give an appearance of five or six storeys high. That is factually incorrect and not supported by any or any credible evidence.

3. I find that Multiple Dwellings are not excluded in the TRP. I repeat my findings in respect of height, bulk and scale.

4. Site density does exceed the maximum, but is consistent with the site density of other Multiple Dwellings in the Precinct.

5. I refer to my finding about setbacks made in respect of Ground 1.

6. I do not agree that the building design is oppressive, overwhelming or overbearing. I find that overlooking and overshadowing have been adequately addressed in the building design and that there is no loss of privacy or amenity for neighbouring properties.

7. I find that there are sufficient planning grounds to justify approval, for the reasons stated including those that follow.

8. I find that there is a ‘physical connection’ between the proposed development and the surrounding buildings. I do not accept that there are any issues concerning traffic movement, parking or noise, all of which are addressed by the design and by the conditions recommended by Mr Holland and Mr Brown which I infer are accepted in their entirety by the appellant.

9. I find that there has been established, at least inferentially on the whole of the evidence, a planning need for the proposed development. In any event, I do not regard this issue as a significant matter for my determination.

10. No finding required.

11. There were proper and sufficient planning grounds for the approval of the application by the Respondent and I find that the development application was assessed against the planning scheme by the respondent.

12. The recommendations of Mr Holland and Mr Brown are now conditions in this Decision.

Justification

It is arguable that there is a conflict with DC-2 SO1, but not with the fact that the proposed development is a multiple dwelling. Rather the conflict is with respect to the height, density and amenity issues.

"Grounds" is relevantly defined in the Act for the purposes of s3.5.14 to mean "matters of public interest" and does not include the personal circumstances of an applicant, owner or interested party.

In Koerner & Ors v Maroochy Shire Council & Ors [2004] QPELR 211, Wilson SC DCJ distinguished s 3.5.14(2)(a) with (2)(b) of the Act:
"[25] [T]here is, then, a distinction between compromising the achievement of DEOs and conflicts with the Planning Scheme. For a development to compromise the achievement of a DEO there would, it is clear, have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised. The first part of the section, concerning DEOs, looks to the macrocosm of the entire planning area and the possibility that the "vision" for it is, as a whole, adversely affected. The other looks, comparatively speaking, to the microcosm of particular parts of the Strategic Plan and involves a much more pedantic exercise."
In Handley v Brisbane City Council & Anor (2005) QPELR 80, his Honour considered issues of amenity, community expectation in the broad context. In reference to the Brisbane City Council Planning Scheme, he said:
"[19] These city-wide DEOs are expressed in very general terms and are to be considered with reference to the 'Planning Scheme Area' which, here, constitutes the whole of the city of Brisbane (RPA s 2.1.2). This wide scope means the occasions in which a development proposal compromises the achievement of a DEO will not be common, because it will be rare to see an individual development having a noticeable effect upon the achievement of a DEO for the entire Planning Scheme area."
In Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267, his Honour again dealt with the DEOs in the broad context:
"[26] There is, then, inherent difficulty in the proposition that a small development proposal on a small parcel can yet compromise city-wide DEOs. That difficulty is compounded here by other 'city-wide strategies' which appear to promote social and cultural diversity, and non-discriminatory access to public and private development (3.2.8). only by taking an extreme view of particular, selected phrases in the DEOs could it be argued that there is a discernible conflict between this proposal, and the generalised in-principle "contents".
Such conflict with the City plan 2005 as may exist is minor. Despite conflict, there are sound and strong planning grounds to justify approval of the proposed development. Those grounds include the following:
·     The site is a limited-use site in respect of detached dwellings, with the large drain across it.
·     It supplies an urban infill of a vacant site between other multiple dwellings.
·     It completes an established cluster of multiple dwelling development and consolidates that urban built form.
·     The design is sympathetic to other multiple dwelling developments and to the streetscape.
·     There is substantial landscaping at the site frontage and on the road reserve.
·     There is no impact on the ridge line of Castle Hill.
·     The design provides a stepping effect, in reality, up the hill.
·     Any appearance of size is mitigated by placement on site, design, building form and landscaping.
·     There is no unacceptable amenity impact on neighbouring properties.
·     The proposed development is attractive from an external perspective, in its location.
·     There are minimal and restricted openings on the eastern and western sides of the buildings to limit overlooking onto neighbouring properties.
·     There is a minimisation of over-shadowing.
·     The density will be comparable to other multiple dwellings in Stanley Street.
·     It adds to the housing choice in a residential area with close proximity to the CBD.
·     It is responsive to the DEO.
·     It integrates with existing developments in the streetscape.
·     It responds to the immediate topography in the context of the dominating backdrop feature of Castle Hill.

Conclusion

I find there are sufficient grounds to approve the development application despite any conflict - to the extent that it exists - with the planning scheme, subject to the imposition of conditions reflecting the recommendations of Mr Holland (driveway access) and Mr Brown (recreation area roof).

The appeal should be dismissed.

Orders

1. Appeal dismissed.

CITATION:	Grieves v TCC & Anor [2009] QPEC 142
PARTIES:	Donna Grieves (Appellant) And Townsville City Council (Respondent) And HTR Pty Ltd ACN 124 993 951 (Co-Respondent)
FILE NO/S:	P&E 93/2008
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court, Townsville
DELIVERED ON:	05 November 2009
DELIVERED AT:	Townsville
HEARING DATES:	13, 14 & 28 August, 2008; Written Submissions 16 September, 2008, 10, 26, 27 & 28 October, 2008 and 11 December 2008.
JUDGE:	Durward SC DCJ
ORDERS:	1. Appeal dismissed
CATCHWORDS:	ENVIRONMENT AND PLANNING - MULTIPLE DWELLING - TRADITIONAL RESIDENTIAL PRECINCT - Whether proposed development consistent with character and desired environmental outcomes in planning scheme ENVIRONMENT AND PLANNING - INCONSISTENCY - Whether proposed development inconsistent in height, residential density, setbacks, size and bulk, amenity considerations and planning need ENVIRONMENT AND PLANNING - EXISTING APPROVAL - Extent to which smaller scale multiple dwelling approved under former legislation and planning scheme relevant on proposed development under new planning scheme ENVIRONMENT AND PLANNING - INTENT OF PLANNING SCHEME - Proposed development and infill of vacant site among existing multiple dwellings in part of street otherwise providing detached dwellings - relevance of existing multiple dwellings to construction of new legislation and planning scheme ENVIRONMENT AND PLANNING - CONFLICT AND CONSTRUCTION - Townsville City Plan 2005 - resolution of conflict with planning scheme - construction of legislation and planning scheme ENVIRONMENT AND PLANNING - JUSTIFICATION - Whether sufficient grounds to approve proposed development despite conflict
LEGISLATION:	Integrated Planning Act 1997 ss. 2.1.23, 3.5.14, 3.5.5; Local Government (Planning & Environment) Act (1990) s. 4.4.5A; Townsville City Plan 2005
Grosser v City of Gold Coast (2001) 117 LGERA 153; Weightman v Gold Coast City Council (2003) 2 Qd R 441; Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337; Luke & Ors v Maroochy Shire Council & Anor (2003) QPELR 447; SDW Projects Pty Ltd v Gold Coast City Council & Anor (2007) QPELR 24; Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78; Heron Building Group Ltd v Logan City Council & Anor (2002) QPELR 303; Broad v Brisbane City Council (1986) 2 Qd R 317; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Tadpoles' Early Learning Centre v Noosa Shire Council [2008] QPEC 9; Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPELR 126; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 356 Fitzgibbon Hotel Pty Ltd v Logan City Council (1997) QPELR 2008; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; BC for Vogue on Broadbeach v Gold Coast City Council (2006) QPELR 585; Rowley v Caloundra City Council [2008] QPEC 99; Aria Property group Pty Ltd v Maroochy Shire Council [2008] QCA 169 Sia & Anor v Brisbane City Council & Ors [2009] QPEC 8; Coener v Maroochy Shire Council [2001] QPELR 211; Handley v Brisbane City Council [2005] QPELR 80; Kotku Education & Welfare Society Inc v Brisbane City Council [2005] QPELR 267 H A Bachrach Pty Ltd v Minister for Housing (1992) 80L GERA 230; Norris Clarke & O'Brien Pty Ltd v Brisbane City Council [1996] QPELR 262; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41
COUNSEL:	ANS Skoien for the Appellant RA Quirk for the Respondent HD Houston for the Co-respondent
SOLICITORS:	Wilson Ryan & Grose for the Appellant TCC Legal Services for the Respondent Connolly Suthers for the Co-respondent