Hackworth v Brisbane City Council

[2007] QPEC 73

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Hackworth & Anor v Brisbane City Council [2007] QPEC 073
PARTIES:	BD 1224 of 2006
JENNIFER HACKWORTH
First Appellant And
RAYMOND POON
Fifth Appellant
V BRISBANE CITY COUNCIL
Respondent And
BRISBANE CITY COUNCIL
Co-Respondent
BD 3384 of 2006
JENNIFER HACKWORTH, SUSAN JANE STEPHENS, RAYMOND POON
Applicants
V BRISBANE CITY COUNCIL
Respondent And
BRISBANE CITY COUNCIL
Co-Respondent
FILE NO/S:	BD 1224/2006; BD 3384/2006
DIVISION:	Planning and Environment
PROCEEDING:	BD 1224/2006 Appeal BD 3384/2006 Originating Application
ORIGINATING	Planning and Environment Court of Queensland
COURT:
DELIVERED ON:	23 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	2 & 3 August 2007 (including a site inspection on 3 August 2007); written submissions received on 1 and 6 August 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	Review at 9:15am on 2 October 2007
CATCHWORDS:	PLANNING LAW – PLANNING AND ENVIRONMENT – bicycle path and fence along border of public golf course – visual amenity – heritage codes – traffic – assessment against codes
COUNSEL:	L A Stephens for appellants T Trotter for respondent
SOLICITORS:	McKelvey & Hu, Lawyers for appellants Brisbane City Legal Practice for respondent

1. Brisbane City Council wishes to construct a bikeway and ancillary fence along the northern boundary of the St Lucia Golf Course[1] (a public ‘pay and play’ course owned and operated by Council). Generally, the bikeway would follow the existing line of Hillside Terrace, St Lucia. The fence is necessary to reduce the risks to users of the bikeway from errant golf balls. After some ambiguity arose as to the proper legal characterisation of the proposal, Council erred on the side of caution and declared it to be impact assessable and, hence, one which required public notification. A group of local residents who object to the proposal commenced proceedings in this Court after a development permit, with conditions, was granted in early 2005[2].

   [1]            More particularly described as Lots 850, 862, and 896 on SL1909 and Lots 885-891 on RP40783, Parish of Indooroopilly

   [2]            Exhibit 6, Tab 5

2. The proposal represents the first of two stages in the construction of an interconnected pedestrian footpath and bikeway linking the University of Queensland, St Lucia campus, with the Jack Pesch Bridge, a car-free crossing of the Brisbane River at Indooroopilly[3]. As an integral part of a city wide strategy to increase walking and cycling in Brisbane[4], the proposal has, on its face, clear community benefits. These proceedings involve a balancing of those broader community interests, as they are encapsulated within City Plan, and what Mr Trotter nicely described as the ‘…narrower, yet sincerely held concerns of local residents’[5].

   [3]            Referred to in the Brisbane Active Transport Strategy 2005-2010 as the UQ Arterial Pathway

   [4]            Brisbane Active Transport Strategy 2005-2010

   [5]            Paragraph 2 Closing Submissions for Respondent, 6 August 2007

3. The hearing involved two related proceedings: the first is an appeal under the Integrated Planning Act 1997 (IPA), s 4.1.28 against the development approval[6]; the second, an originating application seeking declarations[7]. Both proceedings were lodged by the same group of local residents[8] and under a previous order of the Court they were directed to be heard together. The issues raised in the originating application relating to questions whether the proposal, and in particular the fence, was properly assessed can sensibly be determined in concert with the appeal itself.

   [6]            Filed 28 April 2006, now BD1224/2006

   [7]            Filed 21 November 2006, now BD3384/2006

   [8]            At the commencement of the hearing on 2 August 2007 the second, third and fourth appellants were given leave to withdraw

4. The appellants raised another preliminary matter early in the hearing: namely, whether later amendments proposed by Council[9] to the design of the protective fence are minor changes as that term is understood in IPA, s 4.1.52(2). A black, chain-wire fence, running the length of the bikeway at a uniform height of 3m, was originally described in the development application (and was publicly notified). In April 2007, Council informed the appellants of an alternative design under which about 400m of fencing is to be 2.4m high with a 1.2m panel (‘crank’), angling 450 over the bikeway; and, the balance of the length of the fence (over half) will be lowered from 3m to 1.4m in height.

   [9]            Exhibit 3

5. The changes proposed do not impress (in the words used in s 4.1.52, and in Sch 10 of IPA) as so different from what was originally notified to the public as to be likely to attract a new, adverse submission from a person who had not previously wished to say anything about the proposed bikeway. The submissions which were received addressing the fence component emphasised the likely impacts on heritage, and visual amenity. The design changes to the fence appear to generally lessen its visibility and would be most unlikely to evoke any additional or different concerns. For these reasons I am satisfied the changes to the development approval are minor, both within the ordinary meaning of that word, and in the sense it is used in IPA.

6. When this development application was lodged in 2005 the IPA Planning Scheme for Brisbane, City Plan, was in force. Amendments to City Plan, relating to the classification of certain development as exempt development, came into effect in July 2006. Four elements of City Plan create the planning context within which the merits of this proposal are to be assessed.

7. First, the St Lucia Golf Course is located within the Sport and Recreation Area, an area intended to be ‘generally accessible to the public’ allowing for limits on access (for example, through the provision of fences) where there is an overall community benefit[10]. Support for this intent is found in Strategy 3.2.2.2 to Desired Environmental Outcome (DEO) 3.2.1 which articulates a citywide desire to ‘provide a balanced range of recreational and sporting opportunities, natural environments and natural landscapes to meet community needs (including publicly and privately owned land)’. The report of Mr Vann, the experienced town planner called by Council, identifies three specific DEOs for the Sport and Recreation Area which, at first blush, will clearly be achieved through this proposal.

   [10]           Exhibit 6, Tab 10, City Plan 2000 Chapter 3, p16, S 3.3.1

8. Secondly, St Lucia Golf Course is also listed as a ‘heritage place’’ under the City Plan Heritage Registered Planning Scheme Policy[11] which, consistent with Strategy 3.2.2.3 to DEO 3.2.1 and the purposes of the Heritage Place Code requires development to respect, and not detract from, the cultural heritage significance of a listed place.

   [11]           Listed 1 January 2004

9. Third, the subject site is within the Toowong-Indooroopilly District Local Plan. Development principle 2.5 of this local plan relevantly anticipates the enhancement of shared pedestrian cycle paths along the reaches of the Brisbane River as an alternative transport network[12]. Council’s desire to lessen reliance on private motor vehicles through the provision of safe and convenient cycle and pedestrian access is also emphasised in Strategy 3.5.2.2 to DEO 3.5.1. Finally, Hillside Terrace is described in City Plan as a District Access Route – although, while functioning in this way, it presently falls short of the current design standards for this designation within the Brisbane transport network[13].

   [12]           Exhibit 6, Tab 13, City Plan Toowong-Indooroopilly District Local Plan, Chapter 4, p 256a, s 2.5

   [13]           Exhibit 10, p3

10. The proper characterisation of the proposal has, as remarked earlier, attracted a deal of argument. Although the original proposal was said to be Code assessable by virtue of the present use of the environs as a park[14], confusion as to its correct characterisation led Council, appropriately, to declare that its own application involved impact assessable operational works, and publicly notify it. Properly made submissions adverse to the proposal were received, giving rise to rights of appeal for those submitters: IPA, s 4.1.28.

    [14]           Park involves the use of premises by the public for free recreation and enjoyment eg. playing field, playground, or ornamental garden areas.

11. It is common ground between the parties that a bikeway, ultimately, is part of the definition of ‘road’ as it appears in the Transport Infrastructure Act 1994. By virtue the provisions of IPA the construction of a ‘road’ is also said to form part of the definition of operational works under City Plan. This was the view shared by the town planning experts[15]. The assessment tables classify operational works within the Sport and Recreation Area, when undertaken on a heritage site, as impact assessable (generally appropriate) with the Heritage Place Code identified as the relevant Code[16].

    [15]           Joint Report of Town Planning Experts dated 23 April 2007, attached to Exhibits 10, and 12

    [16]           Exhibit 6, Tab 10, City Plan Chapter 3, p17

12. The appellants contend, however, that the fence is ‘incidental to and necessarily associated with the use of the land as road (bikeway)’ and is part of the relevant planning unit[17]; and, the alleged impacts of the fence should be assessed against the whole of City Plan, but in particular against the Heritage Place Code[18]. If, however, as Council argues, the fence is properly characterised as self-assessable building work then under IPA, Schedule 8, part 2, item 1 read in concert with Integrated Planning Regulation 1998, s 3(4) and schedule 1, part 4, item 1, the only Codes applicable are those relating to the Building Act 1975. The appellants counter that the effect of City Plan, Chapter 3 section 2.6, means that for self- assessable development the Code is the acceptable solution and, the fence must[19], then, comply with the Heritage Place Code[20]. Council says this approach is flawed; in these specific circumstances the reference to self-assessable development refers to IPA, not to City Plan. (Any inconsistency arising between IPA and the City Plan is resolved in favour of IPA: s 1.3.7.)

    [17]           Exhibit 12, Report of Town Planning Evidence prepared by Philip G Fletcher, paragraph 5.3, p7

    [18]           Exhibit 12, Report of Town Planning Evidence prepared by Philip G Fletcher, paragraph 5.2, p 6

    [19]           Section 3.1.4(3)(a)

    [20]           Exhibit 12, paragraph 5.4, p 7

13. At one pole of this argument, the fence component of the proposal becomes impact assessable – not the preferred position for Council (although it seems of no great moment because an appeal to this Court is by way of hearing anew[21]). At the other, the Codes relied on by the appellants are not applicable to the assessment of the fence. The argument is arid; in any event, for reasons which follow I am satisfied the proposal does, in fact, comply with the Heritage Place Code. The most appropriate and fair resolution is to assess the impacts of the fence against the whole of the planning scheme, including the Codes. Evidence called by the respective parties is more than sufficient to permit that approach.

    [21]           Section 4.1.52(1)

14. The parties agree the remaining issues in dispute arising from this planning regime are visual amenity, and impacts; impacts on the heritage values of the site; issues arising from the fact the proposal is said to be part of a larger bikeway system, but for which no other detail is available; and, impacts on informal and recreational access to the golf course[22]. Issues relating to traffic were also notified.

    [22]           Joint Report of Town Planning Experts dated 23 April 2007, attached to Exhibits 10 (and 12)

15. Construction of a new built element along Hillside Terrace will, it must be accepted, affect the visual amenity of local residents, and users of Hillside Terrace and the golf course. Inspection of the site, the helpful photomontages prepared by Mr Elliot and the evidence of Mr Vann were, however, persuasive that there will be minimal interference with existing vegetation; and, that the plain transparency of the fence mean eventual effects on outlook will be minimal, and fall a long way short of establishing persuasive grounds for refusal.

16. An existing fence/cage, adjoining the second tee and close to Hillside Terrace and of a much greater height than the proposed protective fence, did not impress as imposing or dominating; rather, it presented as inconspicuous or transparent[23]. Visual impacts will, I am satisfied, be minimal. When balanced against the obvious ecological and social benefits of this proposal to the wider community, and the fact the use is on public land, on or near a golf course, and largely below Hillside Terrace, the appellants’ claims about the visual effect of the fence (and the path) seem exaggerated, even shrill – and, certainly, unsustainable.

    [23]           Mr Scott in his oral evidence commented that the existing examples of ‘black-wire netting fencing’ were ‘encouragingly transparent’: Exhibit 8, s 2.34(c), p 11

17. A conservation management study undertaken in 2002 identified five criteria said to establish the St Lucia Golf Course as a site of local heritage significance, now listed under the Heritage Register of City Plan[24]. The purpose of the Heritage Place Code under City Plan, Section 3, is to ‘ensure that development does not detract from the cultural heritage significance of a heritage place or heritage precinct’[25]. The four Performance Criteria, when read in light of the overall purpose of the Code, are understood to require the proposal to be assessed against the statements of significance, and in light of the principles of the Burra Charter, to meet this purpose. Mr Scott, the architect called for the respondent, clearly and helpfully articulated this approach[26], and I accept it is the correct one. Although the Burra Charter is expressly mentioned in the Acceptable Solutions, it does not form part of City Plan and is only relevant to this extent. There is agreement between the architects retained by the parties that relevant Criteria 1, 2 and 3 will not be adversely affected by the proposal. Disagreement remains with respect to Criterion 4, calling up the aesthetic values of the site; and Criterion 5 – the importance of public access to the site.

    [24]           The Australia ICOMOS Charter for Places of Cultural Significance 1999 and its guidelines, Cultural Significance, Conservation Policy, and Procedures for Undertaking Studies and Reports

    [25]           Exhibit 6, Tab 12, City Plan Chapter 5, p 90

    [26]           Exhibit 8, Report on Heritage Issues of M Scott, s 2.02, p 2

18. The aesthetic significance of the golf course was said, again, to be adversely affected by the construction of the protective fence but for reasons already explored, its actual visual impact will be minimal. Golf courses are, by their nature, landscapes which not infrequently change their form, and appearance: over time, tees will be moved; vegetation modified, and built features, like fences and protective barriers or cages, may be added and removed. Inspection left real doubt, too, that aesthetic significance of a high order attaches to this particular edge of the golf course; it is not unattractive, but nothing about the outlook to it from Hillside Terrace impressed as special, or so imbued with aesthetic values as to make any alteration to it inconceivable, or even wrong. It is pleasant – nothing more – and it will be no less so if a bicycle path goes through it.

19. Outside its formal use as a golf course, the site provides an open space for local recreation. Unrestricted and informal access, an attribute of cultural significance to be preserved, is reflected in Statement 5 which says, relevantly, that the golf course is ‘valued by the local and wider community as a place for informal recreation and for organised sport’. Incorporated in the fence design are a series of self-closing gates and vehicle access points. The appellants’ claims that this slight limitation upon access to the fairways will restrict informal recreation, detracting from the site’s significance as a heritage place, were unconvincing. A notified condition of the development permit provides for 24 hour unrestricted access for visitors to the golf course. It does not seem unreasonable or onerous to specify where pedestrians are able to enter a golf course and, as the appellants had to concede, their right of access has to be balanced against the dangers and inconvenience to golfers of having residents wandering the fairways during play[27].

    [27]           T130, ll 28-30

20. This common-sense conclusion is buttressed by the clear statement of intent for the Sport and Recreation Area under City Plan, and the overwhelming fact that the primary use of this site is for a sporting facility. I am satisfied, and the evidence establishes, that the proposal complies with the Heritage Place Code and, in doing so, will not detract from the cultural significance of the golf course.

21. The proposed bikeway and fence are also said to have unacceptable traffic engineering impacts. The joint report of traffic evidence identifies a high degree of disagreement between the experts retained for the parties. At its nucleus are concerns the bikeway will not be fit for its proposed purpose because it does not demonstrate any connectivity with existing bike routes, and proposed alternative routes (and will be under-utilised); and, will be unsafe for pedestrians and cyclists.

22. Hillside Terrace is currently used as an on-road bicycle route, an attribute consistent with a District Access Route designation. There are, however, no bicycle lanes on the road and the evidence of Mr Beard, a very experienced traffic engineer, indicated that it is not wide enough to support them. Mr Beard also identified other design limitations on the road itself (the absence, for example, of pedestrian footpaths) and his evidence was persuasive that Hillside Terrace falls far short of being able to provide the acceptable design elements and standards for new District Access Routes. An off-road, shared pedestrian and bicycle path of the kind proposed is, in Mr Beard’s opinion, an acceptable compromise allowing Hillside Terrance to continue its dual function as a district transport route, and in providing safe access for local residents[28].

    [28]           Exhibit 10, Report of Colin Beard, p3

23. It was asserted by the appellants that the bikeway, if constructed, would be underused and disconnected from other, existing paths – something, it was said, of a ‘piecemeal’ project. No evidence was adduced to support the proposition. It was accepted by both experts that Hillside Terrace, as a bike route, is enjoyed by cyclists of varying experience and, in all likelihood, those cyclists who wish to travel at high speeds will continue to use the road. Notwithstanding this acceptance Council is facilitating, through the staged construction of bicycle paths across the City, a cultural shift in the methods the citizens of Brisbane use to commute, for all purposes.

24. A separate bikeway is an attractive option and, I accept, will be a popular and well used addition to Hillside Terrace. The development of an integrated system of alternative, sustainable transport routes can only occur in stages. Council’s strategy to achieve these ends until 2010 is publicly available, and plainly coherent. The mere fact its components – bikeways of different kinds –will be developed in stages does not detract from its benefits or militate against the development of one stage. The plain benefits of the proposal mean any remaining traffic considerations (lighting, signage, access etcetera) can and should, sensibly, be the subject of conditions of approval.

1. During the hearing a slight further variation to the path, taking it a little further from Hillside Terrace at the western end, was mooted. It impressed as sensible, and capable of being achieved with no offence to the Codes discussed earlier. There seems no reason why, subject to any necessary further conditions thrown up by the deviation, it cannot be incorporated. Otherwise, these reasons dictate that the appeal and originating application must be dismissed.