Handley v Brisbane City Council
[2004] QPEC 39
•30 August 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Handley v Brisbane City Council & Pike Mirls McNoulty Pty Ltd [2004] QPEC 039
PARTIES:
ELIZABETH HANDLEY
Appellant
V
BRISBANE CITY COUNCIL
Respondent
And
PIKE MIRLS McNOULTY PTY LTD
ABN 010 370 448Co-respondent
FILE NO:
BD 4025 of 2003
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
30 August 2004
DELIVERED AT:
Brisbane
HEARING DATE:
21, 22, 23, 24, and 28 June 2004
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for residential development on old Milton Tennis Courts site – proposed development categorised as “generally inappropriate” under Planning Scheme – whether proposal is nevertheless an acceptable one having regard to specific criteria in the Planning Scheme – whether conflict with Planning Scheme – whether sufficient planning grounds to approve proposal despite conflict
PLANNING AND ENVIRONMENT – PLANNING SCHEME – CONSTRUCTION OF PLANNING SCHEMES – application of Integrated Planning Act 1997, s 3.5.14(2) when Planning Scheme sets up precise criteria against which “generally inappropriate” development is to be tested
Integrated Planning Act 1997
Brisbane City Plan 2000Cases considered:
Beck v Council of the Shire of Atherton (1991) QPELR 56
Broad v Brisbane City Council (1986) 2 Qd R 317
Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153
Indooroopilly Golf Club v Brisbane City Council (1982) QPELR 12
Koerner v Maroochy Shire Council (2003) QPEC 054
Leggett v Brisbane City Council (2002) QPELR 285
Playfaire Projects Australia Pty Ltd v Council of the Shire of Maroochy (1991) QPELR 87
SEQ Properties Pty Ltd v Maroochy Shire Council (1999) QPELR 36
Weightman v Gold Coast City Council (2002) 121 LGERA 161COUNSEL:
Mr S Keliher for the appellant
Mr T Trotter for the respondent
Mr D Gore QC and Mr Litster for the co-respondentSOLICITORS:
Robert Milne Legal for the appellant
Brisbane City Legal Practice for the respondent
Minter Ellison for the co-respondent
This is a submitter appeal against Council’s approval of the co-respondent’s application to redevelop the former Milton Tennis Courts site for residential purposes. The co-respondent carries the onus, under the Integrated Planning Act 1997 (IPA), of establishing that the appeal should be dismissed[1].
[1]IPA, S 4.1.50(2).
The land is essentially level save for a small portion in the north-east corner on Milton Road. It is presently comprised of 22 allotments containing a total area of 29,250m2 and has frontages of approximately 176 metres along Milton Road, 20 metres to Lucy Street, and 17 to Frew Street. On the north-east side it is bordered by the rear and side boundaries of dwellings in Wight and Lucy Streets, and on the south-west by the rear boundaries of premises in Torwood Street. Just within that south-west boundary there is underground drainage carrying Western Creek (on its journey to the Brisbane River) beneath the site. An indoor bowling alley lies at the west, on Frew Street.
For decades the site contained the major centre for tennis in Queensland and, for older residents of the State, is almost iconic. It was operated by an institution called Queensland Tennis, and contained a centre court with a large grandstand where important international matches were played, surrounded by a number of grass and artificially surfaced courts which were popular and heavily used. There was also a clubhouse building, and squash courts. Some time ago the surrounding courts were removed, and then the grandstand stood forlornly for some years until it, too, was dismantled and the land has been vacant and bare in recent times.
The developer’s application, lodged with the Council on 12 September 2002, sought a development permit for a Material Change of Use for 174 multi-unit dwellings; reconfiguration of the present 22 lots into two parcels; and, associated works. It was approved by Council on 16 April 2003 and a subsequent negotiated decision notice issued on 27 October 2003. During the period of public notification of the application (16 October - 7 November 2002) a total of 99 submissions and one petition were received objecting to it. Only the present appellant has exercised her rights under IPA s 4.1.28.
The proposal involves a residential precinct with private recreational gardens and facilities, a tennis court and pathways for pedestrians and cyclists, substantial works opening up Western Creek and revegetating it with mangroves and surrounding landscaping, and the provision of public access along the re-exposed creek from Frew Street to Milton Road. The residential aspect involves three apartment buildings, and townhouses. One apartment building planned for the Milton Road frontage is 8 storeys high and would contain 69 units. Another is in the vicinity of the proposed creek rejuvenation area, of 5-6 storeys. The third is closer to the north-eastern boundary at the end of Lucy Street, with 7 storeys. Three townhouses would be situated in the vicinity of the old QLTA Club, to the north-east of the 8-storey structure; and there would be a further eight townhouses to the north-east of the Milton Tenpin Bowling Club, behind existing houses in Haig Road. Plans and drawings appear throughout the experts reports but the proposal may, I am satisfied, be fully appreciated from the scale model (scale 1:200) which is Exhibit 2.
I was taken on an inspection of the site, and then to a number of surrounding streets and areas from which it might be seen, so far afield as the lookout at Mt Coot-tha. Because the scale of the proposed development, and in particular its height, appeared to be at the core of the appellant’s objection this exercise was helpful. So, too, were photo montages prepared by Mr Elliott (Exhibits 10A and 10B) in which he superimposed projections of the proposed buildings on photographs taken from surrounding streets, creating what appeared to be a plausible and convincing representation of the eventual effects on the outlook from those streets.
In written submissions at the conclusion of the hearing Counsel identified the issues as:
(a)loss of land for sport and recreation purposes;
(b) town planning issues including, in particular, the height and character of the proposed development; its effects on visual amenity; and impacts generally on the amenity of the surrounding area (including the reasonable expectations of both the residents of the local community, and the developer);
(c) traffic.
The issues give rise to questions about the construction of the Brisbane planning scheme, Brisbane City Plan 2000 (City Plan) and whether or not the development is in conflict with its provisions; and, if so, whether or not there are sufficient planning grounds to justify approval notwithstanding the conflict[2]. It was also suggested for the appellant that the proposal may compromise the achievement of City Plan’s Desired Environmental Outcomes (DEOs) and might, therefore, run up against IPA s 3.5.14(2)(a) which prohibits approval of a development in the Planning Scheme area which compromises such DEOs as are relevant to that area.
[2]IPA, s 3.5.14(2)(b).
Because this proposal is deemed under City Plan to be ‘generally inappropriate’ the developer is required, under cl 2.5.2, to submit to impact assessment and to demonstrate, inter alia, that its scale and height accord with ‘reasonable expectations’ and DEOs for the area[3]; and, because it is also not in issue that the site is located under City Plan within the ‘Sports and Recreation Area’ classification, that is also something which is said to touch the issue of residents’ expectations.
[3]City Plan vol 1, ch 3, p 6.
Two matters were said by the developer and Council, however, to reduce the importance which should be given to that classification, and to affect the question of expectations. Both matters arise from the history of the site. The first concerns its use and condition in recent years, and the second the fact of a previous preliminary approval for a residential development on the land, around the time City Plan was introduced.
Mr Buckley, the town planner called in the co-respondent’s case, said and I accept that the Milton tennis complex ceased to be used over 10 years ago[4]. Mr Kay (the town planner called by Council) also said, and I have no reason to doubt, that he understood the previous owner, Queensland Tennis, disposed of the land because it was no longer viable to maintain the tennis facility; and, that the city’s modern sporting complexes are presently proposed, and are being developed, elsewhere[5]. Certainly. there was no evidence of any interest by any potential owner or operator in the use of this site for sports or recreation pursuits.
[4]Ex 4 para 3.1.
[5]Ex 17 paras 5.3, 7.3.2.
City Plan was placed on public display around 8 March 1999. On 20 March 1999 a previous owner of the site, Doncaster Holdings Pty Ltd, was granted a preliminary approval for apartment buildings involving 115 units. On 2 June 1999 the present appellant lodged an appeal against that preliminary approval. The appeal was ultimately withdrawn, but not before Council wrote to her explaining the consequences of withdrawal[6]. The preliminary approval then took effect. City Plan was adopted on 24 October 2000 and commenced on 31 October. The present application was lodged on 12 September 2002. Doncaster Holdings preliminary approval lapsed in October 2003[7], three years after City Plan was adopted and one year after the current application was lodged.
[6]Ex 40.
[7]IPA, ss 3.5.19(c) and 3.5.21(2)(a).
Although the present proposal involves higher and larger buildings (and more apartments) than was envisaged in the earlier, preliminary approval, this history of the site means its classification in the Sports and Recreation area (and its zoning under previous town plans) now reflects nothing more than the previous existence of a single, well established major use which is no longer in place; and, that for some years there has been no reasonable basis for an expectation on the part of local residents that the land would be returned to its former use, or anything similar. Mr Trotter, for the Council, suggested the previous classification had been carried over into the new City Plan to enable his client to exercise control and close supervision over the inevitable application for a material change of use to residential purposes. While that might seem either cynical or, indeed, risky I am, in any event, persuaded that whatever the basis for the unchanged classification it was discordant with both past and likely future events, and could not form the basis for any reasonable belief or expectation about the latter.
This is a case in which, notwithstanding the caution and restraint the Court must exercise when considering planning policy[8], the unavoidable conclusion is that the Planning Scheme, has, so far as this particular site is concerned, been overtaken (and, indeed, been permitted to be overtaken) by events[9]. In not dissimilar circumstances concerning the old Toowong Swimming Pool (which had also been developed in the early part of the last century but had ceased to operate, partly for reasons of viability) Quirk DCJ said[10]:
More importantly in the context of the appeal it must be recognised that the pool pre-dated the introduction of formal planning controls in the city. The observations of the experienced town planners … that the land’s zoning was more a recognition of history than an exercise in forward planning strategy have considerable force. Their view is that, with the demise of the pool, the importance of the zoning (from a planning perspective) has been considerably diminished.
[8]Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153.
[9]See, eg Playfaire Projects Australia Pty Ltd v Council of the Shire of Maroochy (1991) QPELR 87 at 88; Beck v Council of the Shire of Atherton (1991) QPELR 56, at 59; Indooroopilly Golf Club v Brisbane City Council (1982) QPELR 12, at 30; and, SEQ Properties Pty Ltd v Maroochy Shire Council 36, at 49.
[10]Leggett v Brisbane City Council (2002) QPELR 285 at 287.
The town planner called by the appellant, Mr Brown, quite properly conceded that the loss of sport and recreation land would have been a “dead issue” had an application been made for a development permit in accordance with the preliminary approval[11]; and that, in the future, at least part of the site would ultimately be developed for residential purposes – with the balance being retained to cope with the Western Creek floodway and public access between Frew Street and Milton Road[12]. Those concessions strengthen the conclusion that the present Sports and Recreation classification is largely irrelevant as a planning issue, including associated questions to do with reasonable expectations, or the DEOs.
[11]T244.1-20.
[12]T235.13-27.
There are other reasons for concluding that the classification is a matter to which little weight could be given. The land does not lie within what City Plan describes as the Brisbane Green Space System[13], and can no longer be regarded as one of the “more formal recreational and open space” areas referred to in City Plan cl 4.1.2.2. It is simply illogical that this rather forlorn, privately owned site would form part of that system, a conclusion strengthened by the fact that other parts of City Plan imply that sports and recreation areas are primarily envisaged as public, rather than private facilities. The “Intent” part of the scheme, while not directly distinguishing between public and private property, makes no reference to the latter (but provides that it “… includes public land that is generally accessible to the public”)[14]; and, in the “Acceptable Solutions” for parks, contains requirements more consistent with public, rather than privately owned, land[15]. Further, while both indoor and outdoor “private” sport and recreation are impact assessable, outdoor sports may be only code assessable where the proposed facility is to be used on a non-profit basis[16].
[13]Ex 4, p 9.
[14]Ex 5, p 28.
[15]City Plan vol 1, ch 3, p 17; ch 5, pp 140-142.
[16]City Plan 2000 vol 1, ch 5, p 137.
Relevantly, too, there is an impressive range of recreational spaces and facilities within five kilometres of the site, traversed in Mr Buckley’s evidence[17], and local school based facilities at Gregory Park which, with Milton Park (on the opposite side of Milton Road) provide 3.94ha of parkland in the immediate neighbourhood. Mr Chenoweth, a landscape architect and environmental planner called in the appellant’s case, contended that sporting facilities in the area were under-supplied but, in doing so, ignored private facilities like the Milton Tenpin Bowl in Frew Street. It seemed illogical and unfair to express, as he did, the conclusion that this proposal would cause a serious loss of active recreation opportunities, on land which was privately owned, but to ignore other private facilities.
[17]T137-143.
It was contended for the appellants that the proposal compromised a number of DEOs, in a way identified and summarised in Mr Brown’s report[18]. Ultimately the appellant submitted that, while that kind of compromise would be rare[19] it may yet have occurred here; but, in any event, the question did not require determination because of the presence of other conflicts with the Planning Scheme which, in the absence of countervailing planning grounds sufficient to justify approval, compelled refusal.
[18]Exhibit 18, para 6.4
[19]Koerner v Maroochy Shire Council [2003] QPEC 054.
The particular DEOs identified by Mr Brown are clauses 3.2.1 which, in Strategies 3.2.2, 3.2.4, and 3.2.2.5 encourages the provision of parks and facilities including privately owned open space, protects scenic landscapes and visual buffering, urges “sympathetic” development, and requires community consultation and participation in projects of significance; 3.3.1, which looks to Brisbane’s land use patterns and buildings and promotes its “unique sub-tropical environment” and, through Strategy 3.3.2.2 requires development to enhance the “amenity, environmental and cultural context of its locality”; and, 3.5.1 which aspires to an efficient transport system and, in Strategy 3.5.2.1, looks to “integrate the movement system with the land use pattern …”.
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 (IPA 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[20].
[20]Koerner (supra); Luke v Maroochy Shire Council (2003) QPELR 447
Even if that approach to the question of compromise involves an analysis which is too broad, the evidence of Mr Buckley[21] and Mr Kay[22] establishes, as I am satisfied, that there is in truth no perceptible compromise here. Mr Kay concludes, and I accept:
[21]Ex 4, pp 10-13.
[22]Ex 17, pp 17-26.
(a) that there is no compromise of DEO 3.2.1 because there is a sufficiency, if not an abundance, of parks and sporting facilities in the immediate vicinity;
(b) as to DEO 3.3.1, this proposal satisfies its goal by providing a sustainable network of residential areas, centres, employment areas and transport links and in fact improves the choice of housing available in a predominantly residential area; and,
(c) the objectives of DEO 3.5.1 are met because the site is proximal to a busy main road and a railway line and, hence, good public transport facilities and will encourage less reliance on private vehicles.
The evidence of Mr Chenoweth (an expert in visual amenity, called by the appellant) and Dr Lamb (who has similar expertise, and was called in the developer’s case [23]) confirms what the view, Mr Elliott’s photomontages, and the model suggest: that the proposed buildings have an attractive design and exhibit a degree of architectural merit, with a number of interesting features; that the landscaping treatment is also appropriate, and will be attractive; that the appearance of the development from Milton Road will be pleasing, and appropriate to a frontage on a very busy road near the city; and, generally, that the proposal would provide a high amenity for an urban development. Mr Brown acknowledged the proposal had been generally designed to comply with the provisions of City Plan’s high density/medium density codes[24] and agreed with Mr Buckley that it showed “good manners” in terms of the setbacks of the larger scale development with respect to primary impacts of privacy, and overshadowing[25].
[23]Ex 6.
[24]Ex 18, para 6.6.3.
[25]T218.40.
Mr Brameld, the expert in traffic called for the appellant, raised some amenity issues arising out of an increase in traffic volumes but did not contradict the evidence of Mr King that any increase in noise levels would be effectively imperceptible to local residents[26].
[26]Ex 11, p 1.
Ultimately, Mr Chenoweth’s evidence manifested two primary concerns: the loss of sports and recreation land, and the height of the buildings[27] and it is fair to say that questions of height and scale, and possible effects on the surrounding suburbs – i.e. potential impacts upon the ‘character’ of the area – became the primary issues. Mr Chenoweth and Dr Lamb differed principally about the building heights which should be permitted, and the extent of the area which should be chosen to consider the visual context of the proposed development, and its impact. (These were also the principal areas of difference between the Town Planners[28].)
[27]T205.
[28]See, e.g. Mr Buckley at T149.35, and Mr Brown at T216, and 218.
These questions of amenity, including visual amenity, fall to be considered in a context which must, fairly, include the proposed redevelopment of Western Creek. The works there involve an area on the Landscape Master Plan called “Public Open Space” containing about 8,000m2. The existing underground stormwater pipes would be replaced with an open landscaped urban creek system providing usable parkland for the local community with pedestrian footpaths, seating areas, playground equipment and a feature timbered deck. The total cost is estimated at $350,000. The site and the surrounding residential areas are also prone to frequent “nuisance” flooding and the engineering works will significantly reduce that recurring problem for homes upstream of Milton Road. It is easy to concur with the witnesses, Mr Collins and Dr Johnson, who both thought this part of the proposal involved a significant community benefit[29]. With some qualifications, Mr Brown generally conceded that the maintenance of this open space at the cost of the development itself (as Council requires) does attract an advantage to the community[30].
[29]Ex 15, p 8; T37.5.
[30]T246.10-20; .50-55.
Further afield, the surrounding areas to the west and south-west and, to a lesser extent, the north and south of the site feature what is called “tin and timber” character housing of a type seen as particular to Queensland, and to be cherished. Mr Chenoweth’s view was that the taller, bulky modern buildings in the development would be highly visible and intrude upon views from many parts of the immediate locality and, hence, detrimentally affect that particular character.
This ignores, however, the size of the site itself (it is a large parcel, like the nearby State School, Brewery and Suncorp Stadium); its long frontage on Milton Road, a major arterial road; conversely, its very short frontages to Frew and Lucy Streets which carry relatively insignificant traffic volumes; and, in truth, its relatively small exposure to view points within the immediate neighbourhood (a conclusion supported during the inspection, and by Mr Elliott’s photomontages). There are also, relevantly, topographical features, (trees and large buildings to the north and east) which would reduce the impact of the height of the buildings; and very large tall buildings to the south-east on Dunmore Terrace (which can be seen from many parts of this “viewshed”), which would have the same effect.
I agree with Dr Lamb that the site is situated at an interface between various urban forms of development, rather than surrounded by and isolated within one particular character area[31]; and, that:
[31]Ex 6, p 12.
… the site has a surprisingly small exposure to existing streets. This is because it is largely landlocked between the creek reserve to the south-west and the rear of properties in Torwood Street, by the Milton Bowling Centre, by housing that fronts Haig Road and by the lack of access from Lucy and Frew Streets.
… the primary exposure of the apartment building component of the development
… is to Milton Road, however this road has a transitional character in the vicinity of the site, with larger industrial and commercial buildings immediately to the north-east and views to the south-east containing many other taller buildings, including multi-storey apartments.… the development is largely locked away from adjacent streets and does not have a substantial streetscape presence, other than on Milton Road which has an urban and intensely developed character.
The “immediate locality” identified by Mr Chenoweth and drawn by him on Exhibit 36 had, I thought, the disadvantage that it ignores land directly opposite the site to the south-east across Milton Road, and the north-east on the other side of Baroona Road when, on any fair analysis from a standpoint within the viewshed, and logically, it is unrealistic to exclude the high buildings to the south-east, the Brewery, and the high tree line to the south-west of the Brewery. The inclusion of these areas in the arena in which visual amenity is to be considered shows that, in a broad but reasonable context, the subject site is in the area of transition described by Dr Lamb between the taller buildings and structures and topography to the north, and the detached residential and medium density development located generally to the west and south.
Ultimately the debate appeared to contract even further, to a difference of a few storeys in height, with both Mr Chenoweth[32] and Mr Brown[33] acknowledging that development to a height of 4-5 storeys would not be inappropriate. That is clearly so: but the use of suitable scale in which to consider impact, and the attractive features of this proposal, means the difference is not determinative.
[32]Ex 19, paras 4.3.6, and 5.3.
[33]Ex 18, para 7.5.
Mr Brameld was concerned about the effect of increased traffic in Torwood Street, and at the intersection of Frew Street and Haig Road. While it was clear from his evidence, and that of Mr Beard and Mr Eppell, that Torwood Street is carrying considerably more traffic than might ordinarily be expected, the construction of a roundabout at its intersection with Haig Road will ameliorate some existing problems. As Mr Beard said, and I accept, the increase would be less than the usual threshold of 5 per cent seen as sufficient to prompt concern, or more dramatic changes. Both Mr Beard and Mr Eppell also thought the increases would in any event be less than Mr Brameld postulated, with each plausibly suggesting that residents in the proposed development would enter the site via Baroona and Haig Roads which is a simpler, safer and more direct route. Their evidence was persuasive that this is not a case in which it can reasonably be concluded that the development would not exacerbate the existing situation in an unacceptable way; or, that the proposal would materially worsen the traffic in the area.
Mr Brameld was also concerned about vehicles turning right from Haig Road into Frew Street in close proximity to a roundabout at the Haig Road/Bayswater Street intersection but Mr Eppell suggested a change in the road design which, Mr Beard agreed, would improve the Frew Street/Haig Road intersection and Mr Brameld was prepared, at least, to accept as beneficial one change[34] which could be undertaken at any time. I accept the evidence of Mr Eppell and Mr Beard that there are no traffic issues which would prohibit the development.
[34]T264.50.
City Plan Vol 1, Ch 3, cl 2.5.2 provides that, in assessing “generally inappropriate impact assessable development” for which (as here) there is no specific Code the development proposal must demonstrate that:
• The character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with the reasonable expectations and DEOs for the area in which the land is classified;
· The proposal has a positive impact on the landscape scenic quality and streetscape of the locality;
· The proposal does not detract from the appearance, environment or amenity of the locality;
· The proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality;
· The capacity of the road system in the locality is suitable to the proposed activity;
· The site has a reasonable level of accessibility to all modes of transport;
· An adequate level of utilities is available;
· Noise generated by the proposal is within levels expected for the area;
· The proposal does not result in unreasonable risk or hazard on site or to adjoining lands;
· Where the proposal is of a nature or scale not reasonably expected in the area, that sufficient land is dedicated for public open space to offset/mitigate impacts;
· The disposal or storage of wastes does not result in visual blight;
· Negative community impacts are not generated including impacts on:
- community identity, cohesion and cultural practices
- community health and wellbeing
- access to community services
- personal safety
- housing choice
- access to employment and education.
The Appellant did not of course rely upon all of these matters as the source of conflict with the planning scheme. For those which are relevant, the question is whether aspects of the proposed development are in conflict with them and, if so, whether or not there are sufficient, relevant planning grounds to, nevertheless, justify approval - the process explained by the Court of Appeal in Weightman v Gold Coast City Council (2002) 121 LGERA 161. For the reasons already explored, I do not think there is any scope for concluding that the proposed development involves an obvious and significant cutting across of any of the three citywide DEOs, or that in light the history of the site that it does not accord with reasonable expectations. The matter upon which the expert witnesses called for the Appellant focussed primarily – the height of the apartment buildings - is a question of scale and might, ultimately, be said to give rise to conflict with the Sports and Recreation classification but, again for the reasons set out, that is not a designation which can carry marked weight in the balancing exercise because it is, now, largely an historical anomaly.
The opening up and revegetation of Western Creek mean the proposal has, in that aspect, a positive impact on the scenic quality of the locality; and in combination with the interesting and attractive design of the planned buildings, the entire proposal enhances rather than detracts from landscape and streetscape. What the first three criteria really address is the aspect of planning law usually called ‘amenity’ (and the word is used in the third criterion). The evidence of Dr Lamb, Mr Buckley and Mr Kay is persuasive that, when all the relevant factors are weighed, this proposal has a positive, rather than adverse, effect on the amenity of the locality, its appearance and environment.
As to traffic and the capacity of the local road system, the fourth criterion is couched in negative terms and is not, in light of the expert traffic evidence I have accepted, breached; and, I am satisfied the road system is suitable in the sense it can manage increases brought about by the development.
The sixth criterion – accessibility to a variety of modes of transport – is clearly a factor highly favourable to the proposal. No point is taken about the seventh, eighth or ninth criteria.
The question of reasonable expectations falls, again, to be considered in light of the fact the site is classified in the Sport and Recreation Area, but in circumstances where that classification is no longer tenable. Certainly, no public open space is ‘dedicated’ but, in a realistic appreciation of the sensible future uses for the site, the Council has not sought that but instead accepted a highly beneficial plan for Western Creek which mitigates flooding, renders the area attractive, and provides access.
No issue is taken about the eleventh point. As to the twelfth, it was suggested the proposal would result in negative community effects ‘due to impacts upon community identity and cohesion’. The submission is not readily comprehended: if it reflects the view that the development site and its inhabitants will damage ‘community identity’ the argument must rely on the proposition that residents of the ‘tin and timber’ or ‘character’ houses will feel different or estranged from the occupants of the new buildings. Certainly, the concept of amenity can include nebulous feelings of discomfort or displeasure[35] but, as the discussion of the areas surrounding this site set out earlier shows, a reaction of that kind would be unrealistic, and extreme.
[35]Broad v Brisbane City Council (1986) 2 Qd R 317 at 319, 320, 325 and 326; Bad Girls Maroochy Pty Ltd v Chief Executive, Dept of Tourism, Racing and Fair Trading (2004) QLR 21 August, 2004
In an interesting analysis designed to reflect the Weightman test Counsel for the appellant included in his written submissions a diagram showing, on either side of a fulcrum, factors said to be favourable, and adverse to, this proposal. The weightiest adverse matter was said to be the height of the buildings. While I agree the Weightman test may be performed in this way I was also impressed by the sensible approach to these criteria adopted by the experienced town planners, Mr Buckley[36] and Mr Kay[37], who addressed the question of conflicts on the basis that the criteria, while very important, were not necessarily to be construed as intended to be prohibitive, and were also plainly designed to allow scope for a local authority to accommodate an approval in the face of conflict with some other provisions in the Planning Scheme when the proposal had, as here, many attractive aspects.
[36]Ex 4, pp 11-12.
[37]Ex 17 pp 8-13.
Mr Brown adopted a stricter approach but ultimately conceded that if a narrow view was taken of the first criterion it would be impossible to build even a single house on this large site. He then purported to fall back upon the establishment of ‘sufficient planning grounds’ as the only proper path to approval, but was obliged to acknowledge that grounds of that kind could exist in respect of the construction of apartment buildings on this site[38].
[38]T254.1-8.
I am not, ultimately, persuaded that conflict does arise here. If it does so, it must fairly be categorised as minor. Even if an assumption of conflict is made, whatever its level and strength, there remain a number of very strong planning grounds, more than sufficient to justify approval. The following, which are relevant to any of the postulated areas of conflict, are taken largely from the evidence of Mr Buckley at T149-151:
(a)the development provides a positive contribution to local landscape, amenities and appearance, as its setting and edge treatments (large setbacks, tree retention, western creek improvements) are consistent with its own existing and former special character;
(b) there are no measurable unacceptable impacts on local amenity;
(c)the floor space density (at less than the MDR acceptable solution) is consistent with local expectations;
(d)it has highly accessibility to public transport, both rail and bus, and to places of employment, where walking and/or cycling to and from work is realistic, and so assists with the achievement of relevant city wide DEO’s-
.strategy 3.1.2.3 implementation paras (e), (f)
.strategy 3.5.2.1 implementation para (b)
.strategy 3.5.2.2 implementation paras (a), (c)
(e)there is significant community benefit with the hydraulic solution proposed by this particular development following its own development process;
(f)there is an improvement to local connectivity (Milton Road to Frew Street) and additional, attractive open space;
(g)the site is peculiar in size, location and orientation, and these elements have been appropriately taken into account in the design so as to strike an appropriate balance between urban consolidation and respecting and complementing existing development;
(h)the proposal, with its residential component, will contribute to the achievement of various DEO’s including-
.strategy 3.2.2.1 implementation paras (a), (d).
Other favourable planning grounds may also be identified. The existence of the preliminary approval in 1999, combined with the closure of the Tennis Centre over a decade ago means the classification of the site for Sports and Recreation purposes can no longer be regarded as having any forward planning strategy. Nor can the decision of Council to allow the site to remain in a particular designation be regarded as a deliberate one in the circumstances; clearly, it had already been decided that residential use was appropriate. There is also evidence of strong demand for housing of this kind in the area, with real benefits in planning terms because of the efficient local public transport system[39].
[39]Ex 25.
The proposed development is also attractive, and meritorious and contributes in a significant way to the architectural and housing diversity sought to be achieved by the Planning Scheme. It will provide a useful and pleasant, and interesting open space area adding to the visual attractiveness of the locality and ameliorating flood problems.
Finally, although it is something which does not itself constitute a favourable planning ground, there is one other matter which is relevant to the balancing exercise prescribed under IPA and explained in Weightman: there was no evidence presented at the hearing from any local resident seeking to advance or justify concerns about amenity impacts, or loss of recreation space.
For these reasons, the appeal is dismissed.
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