Hankamer v Brisbane City Council - [2013] QPEC 28

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hankamer & Ors v Brisbane City Council & Anor [2013] QPEC 28

PARTIES:

CLARE HANKAMER, BEN HANKAMER, PAUL BUCKINGHAM, DAVID PICKFORD, CAROL ROBERTS, VICKIE PASTELLAS, MICHELLE ATKINSON, VIOLA TEMPLE-WATTS, NATALIE SMITH AND RICHARD SMITH

(Appellants)

and

BRISBANE CITY COUNCIL

(Respondent)

and

METACAP DEVELOPMENTS PTY LTD

(Co-Respondent)

FILE NO/S:

3429/2012

DIVISION:

Planning and Environment

PROCEEDING:

Submitter appeal

ORIGINATING COURT:

Planning & Environment Court, Brisbane

DELIVERED ON:

25 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2013 – 22 March 2013

JUDGE:

Searles DCJ

ORDER:

1.      The appeal is dismissed;

2.      The matter is adjourned to allow resolution of the    conditions package;

3.      Any conditions package should contain the following conditions:-

(a)        that any approval be conditioned with a requirement that the protected vegetation on the land under the Natural Assets Local Law 2003 and the Natural Assets Planning Scheme Policy not be interfered with other than in accordance with the conditions of the approval or under an approval given or an exemption applying under that local law;

(b)        that the Community Management Statement shall be required to contain a provision in its bylaws prohibiting any owner or occupier of a lot within the Scheme from interfering with any protected vegetation or causing or permitting interference with any protected vegetation on scheme land unless such interference is in accordance with a permit issued by the Council or is otherwise an exempt activity under the Natural Assets Local Law 2003; and

(c)        that the Community Management Statement contain a provision in its bylaws requiring that the height of vegetation along the boundary near houses 7, 8 and 9 at all times be kept at an appropriate height to avoid unreasonable shadowing of adjoining properties.

CATCHWORDS:

Submitter appeal – Application for a Development Permit for a multi-unit dwelling and preliminary approval for building work – Low density residential area – Low Density, Character and Low-Medium Density Code – Impact assessable (generally appropriate) – whether “strict adherence” to a maximum gross floor area required – whether Subdivision Code of Brisbane City Plan 2000 applies to assessment of development application – loss of valued urban vegetation and excessive encroachment into Tree Protection Zones – Tree Protection Management Plan – whether project arborist’s report too generalised – setbacks – shadows – amenity – density – width of site frontage – noise – whether strict compliance with City Plan performance criteria required – whether sufficient grounds for approval in event of conflict with City Plan

Sustainable Planning Act 2009 (Qld) ss 241, 314, 324, 326, 493(2).

Land Title Act 1994 (Qld) s 48C(1).

Environmental Protection (Noise) Policy 1997 (EPP Noise) Act.

Environmental Protection Act 1994 (Qld).

Brisbane City Plan 2000—Volume 1

Natural Assets Local Law 2003

Natural Assets Planning Scheme Policy

Noise Impact Assessment Planning Scheme Policy

Subdivision Code

Australian Standard – Protection of Trees on Development Sites

South East Queensland Regional Plan

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337.

SDW Projects v Gold Coast City Council [2007] QPELR 24.

Bell v Brisbane City Council [2005] QPELR 557.

Crane v Brisbane City Council [2004] QPELR 1.

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

Tod v Brisbane City Council (2004) QPELR 170

Nash v Brisbane City Council (2010) QPELR 313.

Jensen Bowers Group v Gold Coast City Council (2011) QPEC 049 at [25].

Gorman v Brisbane City Council (2004) QPELR at [11].

Body Corporate for Kelly’s Beach Resort v Burnett Shire Council [2003] QPEC 23.

Broad v Brisbane City Council (1986) 2 QdR 326.

Wurtulla Investments Pty Ltd v Caloundra City Council [2004] QPEC 073 [73].

COUNSEL:

Appellants: A. Skoien

Respondent: T. Trotter

Co-respondent: B. Cronin

SOLICITORS:

Appellants: Tim Wishart Solicitor

Respondent: Brisbane City Legal Practice

Co-respondent: James Watt & Co, Solicitors

TABLE OF CONTENTS

Appeal
Site and locality
The proposed development
Disputed Issues
Statutory assessment regime
Submitters
City Plan

Expert evidence

Environmental and Landscape
Mr Fletcher – Arborist (Metacap)
Environmental & Landscape Joint Experts’ Report dated 24 November 2012 (Metacap)
Joint report opinion of Mr Ferrier - Landscape Architect
Joint report opinion of Mr Fletcher - Arborist
Joint report opinion of Mr Watson - Ecologist
Unanimous conclusion of environmental and landscape experts
Second Fletcher report – 4 February 2013
Mr Ferrier’s amended landscape design February 2013
Architectural evidence
Mr Wiltshire’s shadow diagrams
Joint report Mr Wiltshire, Mr Pickford – 13 March 2013
Mr Pickford’s individual report
Noise
Report Mr King (Metacap)
Traffic
Traffic Engineering Report – Mr Brian Camilleri
Visualisation of Proposed Development
Report Mr Anguix – Visualisation Artist (Metacap)
Town planning experts’ evidence
Report Mr Brown – 12 March 2013 (Appellants)
Loss of vegetation
Size and bulk of development
Gross Floor Area (GFA)
Inadequate site frontage and site dimensions and driveway locations
Setbacks
Vehicle access and car parking
Noise and light impacts
Lot sizes following building works
Report Mr G Ovenden March 2013 (Metacap)
Statement of Intent – Low Density Residential Area
Residential Design – Low Density, Character and Low-Medium Density Code
Frontage width
Rear boundary setback
Location of driveway
Overall conclusions of Mr Ovenden
Mr Ovenden’s sufficient grounds in the event of conflict with City Plan
Ms Rayment’s report – March 2013 (Council)
Alleged over-development
Gross Floor Area
Width of site frontage
Driveway location
Location of house 11
Character and amenity
Alleged conflict with City Plan
Ms Rayment’s sufficient grounds in the event of conflict with City Plan
Ms Rayment’s overall conclusions

Evidence of Non-expert witnesses

Relevance of Subdivision Code
Application details
Use of Codes
Subdivision Code
Conclusion re relevance of Subdivision Code

Consideration of issues

A. Size and bulk

Appellants’ argument
Character of locality
Criticism of Town Planners’ evidence
Mr Ovenden
Ms Rayment
Metacap’s argument on bulk and size
Council’s argument re size and bulk
Conclusion re size and bulk

B. Density

Appellants’ argument
Metacap’s argument re density
Council’s argument re density
Conclusion re density

C. Width of site frontage

Appellants’ argument re width of site frontage
Metacap’s argument re width of site frontage
Council argument re width of site frontage
Conclusion re width of site frontage

D. Setbacks

Front setback
Appellants’ argument re front setback
Metacap’s Arguments
Re: Front setback
Council’s argument re front setbacks
Conclusion re front setback
Other setbacks
Appellants’ argument
Criticism of Mr Wiltshire’s diagrams
Metacap’s argument
Council arguments re setbacks generally
Conclusion re setbacks generally

E. Noise

Appellants’ argument
Metacap’s argument re noise
Council argument re noise
Conclusion re noise

F. Vegetation/Landscape

Mr Fletcher – Arborist
Canopy retention
Mr Ferrier - landscape architect
Mr Anguix – photo montage expert
Metacap’s argument re vegetation and landscaping
Natural Assets Local Law
Jacaranda tree
Council’s argument re vegetation/landscaping
Conclusion re vegetation/landscaping

G. Amenity generally

Appellants’ argument
Metacap’s argument re amenity
Council’s argument re amenity
Conclusion re amenity

H. Conflict with City Plan

Order

Appeal

This is a submitter appeal against a Negotiated Decision Notice of the Council of 6 August 2012[1] granting the Co-Respondent (Metacap) a Development Permit for a Multi-Unit Dwelling of 11 Units together with Preliminary Approval for Building Work under Section 241 of the Sustainable Planning Act 2009 (SPA) on land described as Lot 6 on SP203276 and situated at 66-68 Gilruth Road, Kenmore Brisbane.

[1]Exhibit 2, pages 641-645.

The proposal was amended from its original and those amendments are to be seen in the printed plan of 1 June 2012[2]. The proposal was further amended[3] at the hearing which I determined was a minor change. That amendment deleted the lap pool and kabana and replaced those features with screen planting and a grassed landscaped area. That latest plan still shows a water feature which was a part of the recreation area comprising the pool and kabana and should have been deleted from the plan. I proceed on the basis that the water feature is not part of the proposal.
[2]Exhibit 4.
[3]Exhibit 5.

Site and locality

The combined site area of the subject land is 4729m² with a frontage of 31.986m and a maximum depth of 107.6m. It is an irregularly shaped block and includes within its boundaries a rectangle of 50m wide and 62m deep totalling 3100m².[4] The land slopes down from a ridge running from the south-east to the north-west with its highest point at 50AHD and its lowest point near the north-east corner at approximately 45AHD.[5] It is within the Low Density Residential Area classification under the relevant planning scheme, Brisbane City Plan 2000 (City Plan).
[4]Exhibit 22, page 2.
[5]Exhibit 13, para 2.2.2.

Presently, there is a single low-set brick house in the middle of the site, surrounded by vegetation and a number of small sheds. It constitutes a larger parcel of land between other houses that front the surrounding roads including Gilruth Road to the south, Louise Street to the west and Belsize Street to the east. According to all the planning experts[6], the house on the site appears to be the original house that once existed on a larger landholding prior to subdivision which is thought most likely to have occurred in the 1970’s.
[6]Exhibit 13, para 2.2.4.

The immediate surrounds of the site to the east, west and south are predominantly large houses on lots generally in the range of 600m² to 1100m², with the area evidencing a mixture of building styles with no consistent style.

To the north, on the northern side of Gubberley Street, is an area of vegetation around a small waterway running east-west and generally dividing the low density residential development around the site from the more intensive residential and commercial development adjacent to Moggill Road.[7] Approximately 750m in a straight line to the north-west of the site is a commercial and retail development near the intersection of Moggill Road and Kenmore Road, and similar facilities also exist at an equal distance to the north-east of the site along Moggill Road. Approximately 700m to the west of the site is Our Lady of the Rosary School and approximately 400m south is the Kenmore South State School.[8]

The proposed development[9]

[7]Ibid para 2.2; Exhibit 8.

[8]Exhibit 13, para 2.2.

[9]Ibid para 3.1

The approval is for 11 residential units, each of which is a detached two level house accessed via a common driveway. Each house is individually designed and is between 140m² and 150m² in floor area. Seven of the houses (nos.1 to 6 and 11) are slab-on-ground designs on the relatively flat, more elevated parts of the site while the remaining four (nos. 7-10) are suspended, cantilevered to avoid the need for significant earthworks. Each house has a double garage and three visitor spaces are provided along the common driveway.[10]
[10]Exhibit 31 - Architectural Plan DA005 revision 6.

The driveway entrance is from Gilruth Road and is 4m from the adjacent property at 64 Gilruth Road at point of entry to the site. The driveway then curves around and towards the northern end of 64 Gilruth Road is 0.484m from that property’s eastern boundary. At that point the driveway then forms a modified T-shape, with the perpendicular line of the T curving towards the proposed location of houses 3, 4 and 5 before straightening to the top cross-bar of the T. The gross floor area (GFA) proposed is 1571.2m² or 33% of the site area. City Plan speaks of 30%.

Disputed Issues

The issues identified as being in dispute are:

(A) Size and bulk;

(B) Density;

(C) Width of site frontage;

(D) Setbacks;

(E) Noise;

(F) Vegetation/landscaping;

(G) General amenity considerations; and

(H) Conflict with City Plan.

Statutory assessment regime

The application is impact assessable and is to be assessed by reference to Section 314 of SPA and decided in accordance with Section 324 and Section 326. The latter provision provides that any decision must not conflict with City Plan unless, relevantly, there are sufficient grounds to justify the decision despite the conflict. Given that it is a submitter appeal, section 493(2) rests the onus on the applicant, Metacap, to establish that the appeal should be dismissed.

Being impact assessable, the application is to be assessed against all relevant parts of City Plan, which include[11]:-
[11]Exhibit 15, para 3.1.3.

(a) The Strategic Plan – Desired Environmental Outcomes (DEOs) and Strategies for the City;

(b) The Residential Design – Low Density, Character and Low-medium Density Code (LMR Code);

(c) Secondary Codes including:-

· Filling & Excavation Code;

· Landscaping Code;

· Services, Works & Infrastructure Code;

· Stormwater Management Code; and

· Transport, Access, Parking & Servicing Code.

Submitters

There were 34 properly made submissions opposing the development.[12] The issues raised in those submissions are dealt with later when dealing with the oral evidence of some of the submitters.
[12]Exhibit 3.

City Plan

Relevant extracts from City Plan are contained in Annexure A.

Expert evidence
Environmental and Landscape
Mr Fletcher – Arborist (Metacap)

A Tree Protection Management Plan (TPMP) dated 4 December 2011[13], prepared by Mr Fletcher, an Arboricultural Scientist, was lodged with the application. He is the principal of Tree Science Pty Ltd, the company appointed project arborist for the proposed development.
[13]Exhibit 2, page 719.

Mr Fletcher was engaged to undertake an assessment of all trees on the site with a diameter at breast height (DBH) of over 150mm. He reports that the procedures and presentations in his report adhere strictly to good practice standards of the Australian Arboricultural Industry set out in the relevant industry standard, Australian Standard – Protection of Trees on Development sites – AS4970-2009.[14] Appendix 3 to his report is a Landscape Concept Plan prepared by Landscape Architect Mr Jeremy Ferrier.
[14]Exhibit 30.

The key objectives[15] of the TPMP are:
[15]Exhibit 2, page 724, para 2.

· establishment of a Tree Protection Zone;

· construction techniques for proposed buildings, fencing, hardstand areas and retaining/terracing walls;

· proposed inspection program for the project arborist during construction;

· proposed tree protection measures during on-site work;

· paving recommendations;

· recommended pruning works, including proposed canopy lifting and root works;

· recommended ground surface treatment within the Tree Protection Zone; and

· post construction management and maintenance recommendations.

The purpose of the TPMP is to[16]:-
[16]Ibid para 2.1.

(a) Demonstrate that any impacts to the nominated/protected trees has been assessed and relevant work methods have been put in place to either remove, mitigate or reduce such impacts to a lower level (as practical) for trees proposed for retention;

(b) Identify additional feasible mitigation measures that may be implemented during construction works to retain and protect trees proposed to be removed;

(c) Provide guidance on the protection of the retained trees, the protection materials to be used and the method/s of installation;

(d) Identify requirements for the short and longer term management requirements of retained trees;

(e) Nominate a strategy for impact assessment for additional works not previously considered, that may be required as detailed design progresses; and

(f) Define responsibilities.

This TPMP resulted in the assessment of 42 trees with 29 nominated for removal, 10 for retention and two palm trees for possible transplanting.[17] Those trees are tabulated in a tree inventory.
[17]Ibid para 1.3.

Environmental & Landscape Joint Experts’ Report dated 24 November 2012 (Metacap)

A Joint Environmental and Landscape Experts Report was prepared by Mr Fletcher, Mr Jeremy Ferrier (Landscape Architect) and Mr Justin Watson (Ecologist) on behalf of Metacap. There were no areas of disagreement amongst those experts and each expressed the following opinions:

Joint report opinion of Mr Ferrier - Landscape Architect

Mr Ferrier had prepared the earlier referred to landscape concept plan in Mr Fletcher’s report and a plant palette and existing tree schedule[18] lodged with the application. In his view those drawings showed a well-balanced plan preserving the existing amenity of the site through the retention of existing trees where possible while proposing extensive new planting to address the requirements of the Council’s Landscape Code of providing a landscape solution that will quickly blend the proposed development in with its surrounding neighbourhoods.
[18]Exhibit 2, pages 83-4.

Mr Ferrier identified a number of desirable outcomes of the proposed development from a landscape architectural perspective, namely:

(a) Ample greenspace along the side and rear boundaries to ensure a substantial buffer of screening vegetation could be established between the development and neighbouring properties;

(b) Setback of the proposed houses from the front boundary to allow for tree and understorey planting providing a green interface with the street, thus keeping the character of the existing landscape;

(c) Incorporation of planting pockets along the length of the driveway to facilitate the planting of shade trees to cool and shade the hard surfaces of the development; and

(d) Retention of a significant number of the existing trees to assist, from day one, the visual harmonisation of the proposed development within its existing environment and to provide the backbone to augment the proposed new plantings recommended by him.

I note, at this point, that Mr Ferrier’s opinion in relation to the retention of existing trees related only to the retention of 10 of 42 trees as outlined in Mr Fletcher’s report of 4 December 2011.[19] At the time of this joint report, Mr Fletcher’s later survey of 4 February 2013 had not been completed.
[19]Exhibit 2, page 719, para 1.3. As will be seen in a later report from Mr Fletcher, a later assessment of 54 trees resulted in a recommendation for retention of 24 (44%).

Mr Ferrier then turned to the Landscape Code in City Plan and, by reference to four Performance Criteria therein, expressed the opinion that the proposed landscape design applied with all Performance Criteria in that Code. Mr Ferrier’s evidence is uncontentious.

Joint report opinion of Mr Fletcher - Arborist

Mr Fletcher said his assessment considered the broad policies of the management of urban trees within Australian Standard AS4970-2009 - Protection of Trees on Development Sites. In his view, his TPMP identified the following appropriate tree management strategies and design and supervision requirements:-

(a) assessment of any impacts to the nominated/protected trees, relevant work methods put in place to either remove, mitigate or reduce such impacts to as low a level as practical for a retained tree;

(b) identification of additional, feasible mitigation measures during construction works to retain and protect trees proposed to be removed;

(c) provision of guidance on the protection of retained trees, the protection materials to be used and the methods of installation;

(d) identification of requirements for short and longer term management of retained trees;

(e) nomination of a strategy for impact assessment for any additional works not previously considered which may be required as detailed design progresses; and

(f) the definition of responsibilities for all involved in the development.

As to the Earthworks Plan, Mr Fletcher said it demonstrated a considered approach to the construction around retained trees to ensure their structural integrity. By using alternative construction methods such as suspended slab, timber suspended flooring and cantilevered floor sections he considered that the health of the relevant trees would not be compromised.

As to the trees to be retained, he considered they would provide a wide range of benefits and identified the most important benefits of the site’s urban forest addressed when considering trees to be retained. These considerations were:-

• microclimatic regulation;

• soil and water management;

• air quality control;

• carbon storage;

• biodiversity conservation; and

• aesthetic values.

Mr Fletcher said that it was not possible to set specific targets for the quantity or quality of the urban forest due to a lack of relevant quantitative information but, notwithstanding that, he expressed the view that the tree canopy cover of the retained trees, which is directly related to environmental quality, would be around 40% which would further promote the value of the urban forest.

As to the retained trees, Mr Fletcher further said that the effects of urban consolidation on them had been considered and that the ongoing supervision of the project arborist would ensure, not only their survival, but that they thrive for years to come. As to trees nominated for removal, he said they were insignificant specimens with little or no amenity value and that the proposed development provided adequate opportunities for the planting of large, long-lived screening trees to meet neighbourhood landscape amenity expectations.

Joint report opinion of Mr Watson - Ecologist

Mr Watson expressed the following opinions:-

(a) The site was mapped as Valued Urban Vegetation (VUV) under the Natural Assets Local Law 2003 (NALL)[20] but was not mapped by the State as supporting remnant vegetation or any species of conservation value under the Vegetation Management Act 1999 and the Nature Conservation Act 1992. There is no essential habitat under the former Act mapped on the site;
[20]Exhibit 21.

(b) From a purely ecological perspective the site has limited value, with no eucalypt species, which are fairly common on larger blocks and hilltops in Brisbane’s western suburbs. It was apparent that none of the original native vegetation had been retained and that all the trees/vegetation had been planted over the years, with a preponderance of weed and non-native flora species;

(c) The site supports a few large trees which would provide some fauna habitat, and the landscape design proposed retains significant canopy trees including Leopard Ash, Leopard tree and a jacaranda which maintains a visual and landscape feature. That retention also retains ecological value through the provision of resources for fauna by way of nesting, denning[21], roosting and foraging resources;
[21]Not defined in Shorter Oxford Dictionary but presumably related to Denn defined as a woodland pasture in south-east England, especially for swine.

(d) The landscape plan of Mr Ferrier will allow for a significant planting exercise to ensure the offset of weeds/exotic plants to be removed by the replacement with more appropriate, suitable native species producing an obvious ecological benefit; and

(e) The location and type of retained trees allows for a continued linkage across the site for transient species to move through the site and locality.

Unanimous conclusion of environmental and landscape experts

Messrs Fletcher, Ferrier and Watson expressed the unanimous opinion that, if the development proceeded in accordance with Council conditions and approved management plans, there should be no conflict with the Council’s policy/codes, and City Plan’s objectives relative to their respective areas of expertise would be achieved. They concluded:-

(a) the site supports a range of invasive, non-native and weed species;

(b) trees of landscape and visual amenity have been identified for retention and have been incorporated into the landscape design;

(c) trees unsuitable for retention (impractical, invasive, unhealthy and structurally unsafe) have not been retained within the development design;

(d) limited ecological values currently exist on the site;

(e) the proposed landscaping will allow for significant enhancement of the vegetation and visual features of the site;

(f) the proposed landscaping, removal of weed species and significant tree retention will allow for the retention and enhancement of ecological values within the subject site and the locality; and

(g) management measures can and will allow for the protection of vegetation during construction activity.

Second Fletcher report – 4 February 2013

Subsequent to the commencement of the appeal, Mr Fletcher undertook a further vegetation survey and prepared another report.[22] In this survey the number of trees assessed was increased from 42 to 54. The number of trees to be retained was increased from 10 to 24. Those trees are identified in a further tree retention plan prepared by Mr Ferrier.[23]
[22]Exhibit 12.
[23]Drawing 2011-096-SK03 issue B in January 2013 exhibited to the second report. In this report Mr Fletcher concluded that the trees to be retained could be preserved within the context of the proposed residential development.

Mr Ferrier’s amended landscape design February 2013

Appendix 1 to Mr Fletcher’s second report contains Mr Ferrier’s new tree retention plan and his Landscape Architecture Overview.[24] In relation to the amended landscape design Mr Ferrier made the following points:-
[24]Also Exhibit 16.

(a) New planting of shade trees, upright screen trees and palm groves as well as the retention of existing trees will ensure a green canopy is quickly established over much of the site;

(b) The plants selected match the vegetation type in neighbouring gardens;

(c) The landscape design shows a well-balanced plan preserving the existing amenity of the site through the retention of existing trees where possible with extensive new plantings which will address the requirements of the Council’s Landscape Code.

Architectural evidence

Expert evidence was given by Mr Wiltshire, Architect (Metacap) and Mr Pickford (Appellants), one of the Appellants. He is a registered builder, AutoCAD Training Manager and lecturer at South Brisbane T.A.F.E College from 1986-2006 and an architectural and design draftsman.

Mr Wiltshire’s shadow diagrams

Mr Wiltshire prepared 12 shadow diagrams of the site.[25] These 12 diagrams show:-
[25]Exhibit 17. This is a letter from Mr Wiltshire to Mr Ovenden, town planner, dated 8 February 2013 referring to the enclosure of six shadow diagrams, three for the summer solstice measured on 22 December (presumably 2012) and three for the winter solstice measured on 21 June (presumably 2012). Each of the measurements for each solstice is at 9am, 12 noon and 3pm respectively. However, the diagrams attached to this letter in the exhibit number 12 and are dated 6 March 2013. They could not have been in existence at the date of the letter 8 February 2013. No point was taken on this and I assume the earlier dated letter contained earlier diagrams superseded by the enclosed ones.

(a) three plans of shadowing from trees to be removed at winter 9am, winter 12pm and winter 3pm respectively;

(b) shadowing cast by the proposed development at those same times;

(c) the equivalent summer shadowing by trees to be removed at the above times;

(d) the summer shadowing of the proposed development at the above times; and

(e) the shadowing of the trees to be retained at the above times.

Joint report Mr Wiltshire, Mr Pickford – 13 March 2013

Mr Wiltshire and Mr Pickford prepared a joint report dated 13 March 2013.[26] It annexes the above six winter solstice diagrams of Mr Wiltshire referred to above. They agreed those shadow diagrams were an accurate depiction of the potential shadow impact on the site. They then expressed their opinions on the following issues:-
[26]Exhibit 14.

(a) Amenity of the Locality – Character

Mr Pickford considered that the proposed development presented a more contemporary building design than the surrounding adjoining building types of predominantly post war 1950’s and 1960’s single storey dwellings and hence did not reflect the character of the area. He agrees the suburb was a mix of single storey and two-level detached houses.

Mr Wiltshire said there was a wide and diverse range of building styles throughout the suburb and that the suburb appeared to be going through a regenerative phase involving renovation of houses to modernise and, in some cases, to provide an improved streetscape appearance. He agreed there were still ample examples of the 1950’s and 1960’s low style dwellings in the vicinity of the site;

(b) Streetscape – Amenity – Character

Mr Pickford thought the development appeared too high in the landscape considering that both adjoining detached houses were low rise single storey and that the development was thereby out of character with the streetscape and area.

Mr Wiltshire thought it acceptable to present a two-level detached house to the street as was proposed noting that the adjoining detached houses had the right to add an additional level to those houses if they wished. As to the height and type of landscaping he deferred to other experts;

(c) Construction management

Mr Pickford expressed concern with the protection of the retained trees during the construction phase and said that all best efforts to protect those trees could not be achieved.

Mr Wiltshire thought the construction site could be managed so as to limit congestion to the street and deferred to other experts in relation to the management of the flora;

(d) General

Mr Pickford raised the issues of non-compliance with City Plan in relation to the front setback to Gilruth Road and the exceedance of gross floor area over City Plan requirements. He also noted the proposed houses were all two-storey, and all except house 1 had no roof overhangs. He regarded their density as excessive.

Mr Wiltshire deferred to the town planners on the above issues.

Mr Pickford’s individual report

Mr Pickford provided a further report by way of Statement of Evidence[27]. He firstly commented on the approved plans[28] and then detailed his reasons for concluding that the subject development would be accompanied by adverse character and amenity impacts on the area. They are:-
[27]Exhibit 24.
[28]Exhibits 4, 5 and 31.

(a) The Lot sizes proposed range from 285m²to 424m² which averages about half the size of the surrounding properties which have an average size of about 600m² to 800m²;

(b) The minimum rear boundary clearances are all reduced from the relevant Acceptable Solution in City Plan and the separation distances of the houses range from 2.494m to 1.388m. He said in a standard residential development the setback from side boundaries would be 1.5m for each house to a height of 4.5m and 2m for a height of 4.5m to 7.5m resulting in separation of buildings of at least 3m (to a height of 4.5m) increasing to 4m (to a height of 7.5m) and then 5m above that[29];
[29]Exhibit 24, para 3.3.

(c) The consequence of the small separation distances between the buildings is that the houses will appear more closely together and a denser configuration perhaps appearing as a single mass of development rather than spaced houses sensibly intergraded with neighbouring dwellings;

(d) House 1 is not in keeping with the 50’s and 60’s character of the area with a token pitched roof to the stairwell. Further, it is not set back an appropriate distance from Gilruth Road. The house to the west of the development is setback 8.9m from its road frontage and the one to the east 6.7m. To complement these setbacks, house 1 should be set back 6.24m from the front boundary instead of the proposed 4.8m;

(e) The proposed landscape vegetation will not allow casual surveillance from the street; and

(f) The proposed uniform two-storey houses are not envisaged by City Plan which speaks of one and two-storey houses, nor are they at a compatible scale and design with neighbourhood houses so as to complement the scale of buildings in the street.

Mr Pickford then referred to the topography of the land noting that the highest ridge line surrounding the development is 54.74m, whereas the site reaches 57.3m. This results in a difference between the height of the site and surrounding land in many parts of the site of at least 2m. To then construct houses at or near a maximum of 8.5m in height contrasts with the height of adjoining houses which vary between one and two storeys and 4.5m and 7.5m in height. This all results in an increase in the bulk and scale of the development.

Mr Pickford attached to his report five drawings from various angles seeking to demonstrate that the proposal involves too many houses too close together and too close to adjoining properties. Those features are exacerbated by the almost uniform height of the proposed houses, both as to their two storeys and absolute height. He concludes that the proposal constitutes an over development of the site as too dense, too bulky and of a scale out of keeping with the existing low density development in the area. As a consequence, the character and amenity of the area will be adversely impacted.

Noise
Report Mr King (Metacap)

Mr King, Senior Engineer with MWA Environmental, provided a report.[30] He recorded noise levels between 31 January 2013 and 5 February 2013 and concluded that those noise measurements demonstrated that the area had background noise levels (L90) of an average suburban residential area. He addressed the following issues:-
[30]Exhibit 18 on noise amenity on behalf of Metacap.

(a) Residential noise

He concluded that the development proposed would not result in an unacceptable impact upon the residential amenity, and the proposed GFA of 33% rather than the City Plan requirement of 30% would have no perceptible difference in noise levels to surrounding residents;

(b) Car movements on site

Mr King concluded that the development would not result in an unacceptable impact upon residential amenity as a result of vehicle movements and that the above exceedance of GFA would have no perceptible difference in noise levels to surrounding residents;

(c) Refuse collection truck on site

He said that the movement of refuse collection vehicles on the site would be at a slow speed due to the site geometry so that the resultant noise from refuse collection would be the same character as experienced by existing residents from normal kerbside collection. Accordingly the refuse collection would not result in any unacceptable noise impacts at offsite locations.

From those the above findings Mr King concluded that the proposed development could be constructed with no adverse amenity impacts in terms of noise and adjacent residential properties notwithstanding the imperceptible exceedance in the GFA of 3%. He considered that the appropriate acoustic amenity outcomes would be achieved if a 1.8m high acoustic barrier was constructed along the common boundaries to the property at 64 Gilruth Road, the house immediately adjacent to the entrance from Gilruth Road.

Traffic
Traffic Engineering Report – Mr Brian Camilleri

Mr Camilleri provided a traffic engineering report[31] expressing the following opinions:-[32]
[31]Exhibit 20.
[32]Ibid para 11.

(a) The proposed development would generate seven vehicles per hour during peak periods representing less than 1% of the existing traffic movements along Marshall Lane where 70% of the development traffic is expected to head to gain access to schools, shopping centres and major arterial roads. Marshall Road has ample spare capacity to cater for this additional traffic;

(b) The development access was in accordance with the Council Planning Scheme Policy;

(c) The proposed onsite parking arrangements satisfy Council requirements in terms of parking supply and geometric design standards and are considered suitable;

(d) The proposed development layout shows that all service vehicles would be able to access and exit the site in a forward gear in accordance with Council requirements;

(e) Existing public transport facilities and services along Gilruth Road are adequate for the needs of the proposed development. No additional facilities would be required although a standard condition of approval would be the construction/repair and reinstatement of pedestrian footpaths across the frontage of the site subsequent to construction activity on it.

Visualisation of Proposed Development
Report Mr Anguix – Visualisation Artist (Metacap)

Mr Anguix of Blackshoe Studios Pty Ltd provided a series of three dimensional images[33] of the following aspects of the finished development:-
[33]Exhibit 19.

(a) Proposed street frontage looking into the site from Gilruth Road;

(b) The Gilruth Road frontage at a 1.5m eye level;

(c) Driveway landscaping showing screen planting in the south-west boundary;

(d) Driveway landscaping near the frontages to houses 3, 4 and 5; and

(e) Right frontage panorama from Gilruth Road.

Town planning experts’ evidence

Three town planners gave reports, namely Mr Denis Brown (Appellants)[34], Mr Gregory Ovenden[35] (Metacap) and Ms Natalie Rayment[36] (Council). They all contributed to an earlier joint report of 11 December 2012.[37] There is no need for me to go through the joint report in detail as the disputed issues raised therein are addressed in the individual reports.
[34]Exhibit 23.
[35]Exhibit 15.
[36]Exhibit 22.
[37]Exhibit 13.

Report Mr Brown – 12 March 2013 (Appellants)

It is convenient to commence with Mr Brown’s report which considers the areas of disagreement with the others in the joint report.[38]
[38]Exhibit 23, para 1.

Unresolved issues identified in Mr Brown’s report are:-

Loss of vegetation

Mr Brown annexed to his report[39] drawings illustrating the extent of clearing and other disturbance works on the landscape necessitated by the proposed development. He says the resultant loss of vegetation from the proposed development puts it in conflict with the following provisions of City Plan:-
[39]Ibid 17.

(a) Section 4.2.2 of the Strategic Plan[40] speaks of meeting the realistic expectations of future amenity and maintaining character of residential neighbourhoods;
[40]Exhibit 6, page 21; City Plan, Ch 2, page 17.

(b) DEOs 2 and 4 for Residential Areas[41];
[41]Exhibit 6, pages 45-47; City Plan, Ch 3, pages 27-29.

(c) The intent of the Low Density Residential Area[42];
[42]Exhibit 6, page 47; City Plan, Ch 3, page 29.

(d) The DEO for the Low Density Residential Area[43] and;

(e) Performance Criterion P5 of the Residential Design – Low Density, Character and Low-medium Density Code[44] (LMR Code).

Overall, as I understand Mr Brown’s evidence on this point, he is concerned about the extent of the removal of existing significant vegetation and the impact the construction of the proposed houses will have on the canopies of the retained vegetation.

[43]Ibid.

[44]Exhibit 6, page 87; City Plan, Ch 5, page 168.

Size and bulk of development

As to the overall size and bulk of the proposed development Mr Brown thinks it excessive given the low density nature of the locality. He reaches that conclusion having regard to the height and length of the proposed buildings and the relationship of each to the other, noting that the close spacing between many of the proposed dwellings and the topography of the site relative to the adjacent land exacerbates the impact of the size and bulk of the proposed development.

Gross Floor Area (GFA)

Mr Brown’s view is that the 3% exceedance of the 30% GFA in City Plan[45] would have flow on consequences with other aspects of the development. It is given extra significance by the character and intent provisions relating to Residential Areas and the Low Density Residential Area.
[45]See Annexure A DEO s 5.2.1; LMR Code P1, A1.1.

Inadequate site frontage and site dimensions and driveway locations

Mr Brown considers the 32m site frontage onto Gilruth Road is inadequate for the design and layout of the development. Given the layout of the proposed 11 houses, the access road from Gilruth Road is inappropriate given that it is located only 0.484m from the adjoining boundary of 64 Gilruth Road. This unreasonably impacts upon that property and insufficient attention has been paid to these impacts.

He considers the combination of the inadequate site frontage and the location of the proposed houses produces an unsatisfactory outcome for 64 Gilruth Road, the residence of the Appellant Ms Roberts’ property. Despite the planting foreshadowed in the current landscape architect’s plans seeking to mitigate any undesirable impacts upon the Roberts’ property, Mr Brown considers that the layout remains conceptually flawed because it does not take into account the existing amenity of the Roberts’ property and the adverse impact the development will have on it. These consequences, he says, flow from the fact that the site frontage of 32m is insufficient to allow for a layout to address the problem.

Setbacks

Mr Brown expressed concerns as to the reduced setbacks which he says are necessitated for the number of houses proposed on the development. Those setbacks, he says, will impact adversely upon neighbouring properties. He detailed the setbacks which will present adverse amenity impacts upon neighbours. Before detailing his opinion I should mention that I have inserted the existence of the setbacks referred to by Mr Brown, which are not detailed in his individual report. I have taken them from Exhibit 5. His concerns with setbacks are:-

(a) House 11 is unreasonably close to the boundary of the Roberts’ property to the south (3.856m) and is unreasonably close to the western boundary (0.533m);

(b) The eastern boundary setbacks of houses 3 (4m), 4 (1.872m) and 5 (2.734m) are inadequate;

(c) The western boundary setback of house 10 (2.231m) is inadequate given the height of the patio;

(d) The setbacks of house 9 (to the north, 2.118m; to the west, 3.908m) are inadequate; and

(e) The setbacks of house 7 to the north (3.679m) and east (4.5m) are inadequate.

Even with the retention of vegetation as proposed, Mr Brown considers that the abovementioned adverse impacts flowing from reduced setbacks would remain.

Vehicle access and car parking

Mr Brown points to Performance Criterion P17 in the LMR Code which provides:-

“P17 Vehicle access and parking design and location must minimise impacts on neighbouring dwellings. Noise disturbance must be mitigated by parking area location and fencing.”

In his view the proposed location of the access driveway from Gilruth Road to the development is unacceptably close to the Roberts’ property as is the visitor car park located on the western side of that access driveway[46] resulting in adverse impacts upon that property. Although Mr Brown did not mention house 11 in his individual report he did raise a concern in the joint report[47] as to the proposed location of house 11 relative to existing development, that is the house immediately north of the Roberts’ property and the first house on the left (west as one enters the development via the driveway from Gilruth Road).

[46]See Exhibit 5, Visitor Figure 2.

[47]Exhibit 13, para 4.1.25.

Noise and light impacts

Mr Brown points to Performance Criterion P20 of the LMR Code which states:-

“P20 Noise from the development must not affect existing or likely future dwellings on adjacent land unreasonably.”

He considers that the abovementioned unacceptably close location of the access driveway and the visitor car park on the Roberts’ property would result in unacceptable impacts of noise and traffic and car parking movement upon that property.

Lot sizes following building works

Mr Brown commences on this issue by comparing the proposed development with a standard format subdivision of land in which case, he says, lot sizes closer to 800m² would be more in keeping with the existing character of the neighbouring area consistent with the lot sizes on adjoining land. That would enable the retention of a greater proportion of established vegetation. He said lot sizes of 400m² to 450m² are more in keeping with the minimum lot size intended for the Low Density Residential Area. He included[48] an alternate proposal following a standard format subdivision which showed that the resultant individual lots were far smaller than the minimum lot size of 400m² in the LDR Area. That notional subdivision shows lot sizes ranging from 305m² to 424m², with 10 of the 11 lots less than 400m². Further drawings[49] show further alternative development proposals with minimum lot sizes of 400m² and 450m² respectively.
[48]Exhibit 23, app 3.
[49]Ibid apps 4 and 5.

Mr Brown considers the proposal will unacceptably impact upon neighbouring properties, with specific conflicts with the intended character of the area arising from the layout and intensity of the proposal. In his view the development will involve excessive clearing and impacts upon several neighbouring properties, and exhibit numerous symptoms of overdevelopment, with consequential adverse impacts upon the character and amenity for local residents. That, he says, is contrary to the reasonable expectations of those residents.

Report Mr G Ovenden March 2013[50] (Metacap)

[50]Exhibit 15.

Mr Ovenden in his individual report addressed the issues in dispute with Mr Brown. He sees no conflict between the proposal and the DEOs of City Plan and says that the development assists in achieving those DEOs by achieving an infill development within an established urban context capitalising on current extensive public investment in infrastructure and at the same time providing a range of housing choice to meet the needs and desires of the Kenmore community. He considers the proposal presents a well considered response consistent with the planning framework established under City Plan and the South East Queensland Regional Plan.

Statement of Intent – Low Density Residential Area

Mr Ovenden said the Statement of Intent for the Low Density Residential Area[51] contemplates multi-unit developments on sites over 3,000m² with scale and density commensurate with the LDR Area. He pointed to the following section of that Statement of Intent:-

“The predominant form of development is detached houses, 1 or 2 storeys in height. Other residential development such as aged persons homes will also be located in the Low Density Residential Area. Multi-unit dwellings will only be allowed on sites over 3,000m², at a scale and density commensurate with the Low Density Residential Area. This will be achieved by strict adherence to a maximum gross floor area of 30% of the site area. Minimum lot size in established areas will be 400m², except in the Demolition Control Precinct where the minimum lot size will be 450m². No provision is made for the subdivision of existing or approved houses.” (Emphasis added)

[51]Exhibit 6, page 47; City Plan, Ch 3, page 29.

As to the above reference to “strict adherence to a maximum gross floor area of 30% of the site area”, Mr Ovenden acknowledges the proposal has a site area of 4,729m² with a GFA of 33% or 150m² above the 30%, hence it does not strictly comply. But he says that the Statement of Intent in this respect must be considered in the broader context of City Plan. He considers the GFA exceedance to be marginal and that the proposal satisfies the DEOs of the LDR Area. He points to the separate houses each not exceeding two storeys, the maintenance of the sub-tropical character with the houses set in green landscaped areas. Importantly he says that the proposal must also be assessed against the LMR Code in which Acceptable Solution A1.1 speaks of a gross floor area of no more than .3 times the site area (30%). On the basis that Performance Criteria may be satisfied other than by the demonstrated Acceptable Solutions, Mr Ovenden says that, notwithstanding the 3% exceedance of the GFA, the proposal does meet the Performance Criterion P1[52] as to building size and bulk and that it is consistent with the low density nature of the locality.
[52]Exhibit 6, page 85; City Plan, Ch 5, page 166.

Mr Ovenden included a series of photographs in his report[53] depicting the built form character of the surrounding area. In his view the predominant housing form in the pocket of Kenmore where the site is located is older single storey residences generally on large allotments but that this is undergoing a change to new two storey houses and extensions/renovations to houses surrounding the subject site.
[53]Exhibit 15, app 3.

He refers also to three multi-unit developments north of the site, namely:-

(a) The western end of Grubbery [sic] Street some 220m north of the site;

(b) Two along Marshall Lane approximately 220m and 440m respectively north east of the site, the northern most having been approved in December 2008 (Stage 1 currently for sale) and June 2010 (Stage 2 yet to be developed). This land was developed for a mixture of apartments and attached houses with an overall GFA of .6 times the site area, despite it being included within the LDR Area and in the same area designation as the subject site.

Mr Ovenden points to the definition of multi-unit dwelling in City Plan[54] and notes that it covers a variety of housing forms ranging from a single dwelling used by separate households (e.g. a boarding house) up to a multi-storey apartment tower and says that the proposed development is one of the lowest density forms of the multi-unit dwellings contemplated. In separate detached houses he says the form of development is entirely appropriate and will complement the surrounding detached houses.
[54]Exhibit 6, page 64; City Plan, Ch 3, page 74.

Residential Design – Low Density, Character and Low-Medium Density Code

As to Performance Criterion P1 of the LMR Code requiring building size and bulk to be consistent with the low density nature of the locality, Mr Ovenden says the proposed 11 detached dwellings very much represent an acceptable form of low density housing for the site, with each being well-sized without being excessive in scale in terms of internal spaces and overall bulk, designed to suit a family or persons interested in independent living without the desire or capacity to maintain a conventional housing lot. The density of one unit per 429.9m² (site area 4,729m² ÷ 11 houses) compares favourably, he says, with the minimum lot size of 400m² for conventional subdivision in the Low Density Residential Area. In his view a freehold subdivision of the land seeking to maximise yield would be potentially far less sympathetic to the protection of landscaped character values in this development.

Frontage width

Despite the 32m frontage being 8m less than that prescribed in the Code[55], Mr Ovenden says that the overall width of the site is closer to 54m once it steps in from the street, and that the street width of 32m is sufficient frontage to establish a house facing the street and accommodate the driveway, consistent with the maintenance of the character of the area. Likewise, with appropriate screen fencing, the driveway location and the siting of the 11 houses are both acceptable in a low density area.
[55]Exhibit 6, page 85, Acceptable Solution A1.3; City Plan, Ch 5, page 166.

As to Mr Brown’s alleged conflict with P2 of Section 4.1 of the LMR Code, Mr Ovenden says there is no conflict because the applicable Acceptable Solution is satisfied in the following manner:-

·     The development includes all detached housing;
·     The development is as connected to the neighbourhood as possible having regard to the single road frontage and surrounding detached dwellings. It is not possible nor beneficial to provide additional pedestrian or vehicular connectivity through the site;
·     The site is a form of infill development, being surrounded by detached dwellings. On this basis development of the site does not reduce the legibility or access to nearby facilities and services; and
·     Private open space is located at the rear of each dwelling, accessible only through the dwelling whereas communal open space is open to residents and clearly located at the north eastern end of the driveway.

As to Mr Brown’s opinion that there is a conflict with Performance Criterion P2 of Section 5 of the LMR Code[56], which requires larger developments to be integrated with the neighbourhood and to form part of the local street network, Mr Ovenden sees no conflict. He points to the elevations of each house[57] which evidences that house 1 has large windows facing Gilruth Road while the other houses have similar windows facing the internal access road.
[56]Exhibit 6, page 87; City Plan, Ch 5, page 168.
[57]Exhibit 31.

As to the alleged conflict with Performance Criterion P4 in Section 5 which requires that the front setback must complement the setbacks prevailing in the street, Mr Ovenden again says no conflict arises because the relevant Acceptable Solution A4.1[58] is satisfied. A4.1 provides that in established areas, as this site is, the front setback is to be within 20% of the average setback of adjoining buildings. He points out that the only front setback to the street is between house 1 and Gilruth Road on the southern boundary of the development, and that front setback is between 4.8m and 5.3m[59].
[58]Exhibit 6, page 87; City Plan, Ch 5, page 168.
[59]Exhibit 13, para 5.1.19.

To understand Mr Ovenden’s argument as to compliance with A4.1, it is helpful to set out the relevant section of the town planners’ joint report[60]:

“House 1 & House 2
5.1.18 – Houses 1 and 2 are approximately 5.2m from the eastern boundary with a further setback to the adjoining house. The upper level setbacks are arguably more relevant because they potentially provide opportunities for overlooking. House 1 is over 9m from the boundary at the upper level. One of the retained trees (a jacaranda) separates house 2 from the boundary.
5.2.19 – P4 of the LMR Code states that the front setback must complement the setbacks prevailing in the street and offers an acceptable solution that any setbacks in established areas be within 20% of the average setback of adjoining buildings. The house to the north is set back approximately 6m (not withstanding the carport is closer to the street), which creates an ‘acceptable range’ of between 4.8m and 7.2m. The front setback for house 1 is between 4.8m and 5.3m which is entirely within this range.”

As I understand the derivation of the 4.8m and 7.2m above referred to, they, respectively, represent 80% of the six metre setback of the house to the north (4.8m) and of the nine metre upper level setback of house 1 (7.2m).

[60]Exhibit 13.

Rear boundary setback

Performance Criterion P13 of the LMR code[61] provides that the development must not significantly reduce daylight to open space and habitable rooms in adjacent development, and boundary walls must be limited in dimensions and openings to minimise the impact on neighbours. Mr Ovenden acknowledges that there is non-compliance with Acceptable Solution A13.3 in that the rear/northern boundary setbacks of houses 7, 8 and 9 do not comply with its six metre setback requirement. He points out that the northern boundary is irregular in its alignment providing the opportunity for a staggered building configuration for houses near that boundary. There is currently a dense cluster of bamboo along the majority of this boundary which will be replaced by screen landscaping. In view of the siting and configuration of the adjoining houses to the north of the site and the topography which falls away north of the northern boundary[62], his opinion is that there will be no adverse amenity impacts caused by the siting of houses 7, 8 and 9. All other houses comply with the side boundary and frontage setback requirements of the LMR Code.
[61]Exhibit 6, page 89; City Plan, Ch 5, page 170.
[62]See Exhibit 5.

Finally, in relation to P13, Mr Ovenden points to the shadow diagrams of Mr Wiltshire[63] which include the superimposition of the proposed dwellings in the shadow diagrams evidencing that the additional shadowing impact resulting from the development is not significant. He notes that the shadow diagrams do not include the impact of shadows from existing trees on the adjoining house sites or shadows associated with the proposed perimeter landscaping. In his opinion the proposal complies with P13.
[63]Exhibit 17.

Location of driveway

In relation to Mr Brown’s opinion that the location of the driveway in relation to house 11 results in a conflict with the purpose of the LMR Code and the DEOs of the Strategic Plan, Mr Ovenden disagrees. He says the siting of the driveway adjacent to the Roberts’ property is compliant with Performance Criterion P20 which provides that noise from the development must not affect existing or likely future dwellings on adjacent land unreasonably. In his view, Acceptable Solutions A20.1 and A20.3 are satisfied in that the siting of dwellings on the adjacent land is more than three metres from the common boundary. As to house 11, its building setbacks are compliant with the LMR Code.

Overall conclusions of Mr Ovenden

Mr Ovenden summarised his conclusions:

(a) The proposed multi-unit dwelling represents a well considered design which complies with the strategic plan and the wide range of applicable code previsions under the Brisbane City Plan 2000;

(b) The proposed development will comfortably co-exist with the adjoining houses and is complementary to the established landscape and built form character in this part of Kenmore. The tree retention strategy for the site has been well thought through with detailed investigations into the values of all existing vegetation on the site;

(c) The proposal has been assessed against provisions of the City Plan. It complies with the overall outcomes sought through the Strategic Plan and is consistent with multi-unit development intended to occur in the Low-medium Density Residential Area.

(d) The proposal has been assessed against applicable codes and complies with all Acceptable Solutions except three in the LMR Code. In such circumstances it is appropriate to demonstrate compliance with the respective Performance Criteria and, for the reasons expressed, compliance has been demonstrated; and

(e) Approval is warranted in accordance with the conditions which have previously been set by the Council.

Mr Ovenden’s sufficient grounds in the event of conflict with City Plan

Notwithstanding his above conclusions, Mr Ovenden said that if it was determined by the Court that there is a conflict with City Plan it would rely upon the following matters in the public interest, which reflect sound town planning principles for multi-unit development and are consistent with the objectives for such development in City Plan 2000:

(a) The proposal represents logical and efficient consolidation (i.e. infill development) in an urban context which is promoted by the South East Queensland Regional Plan and the City Plan as providing more compact, self-contained communities that capitalise on existing and planned infrastructure provision and restrict urban sprawl with its inherent inefficiencies;

(b) The proposal will assist in achieving the Planning Scheme’s objective of a variety of accommodation types that will enable the public to find suitable accommodation through all stages of their lives;

(c) The design is complementary to architectural styles in the locality; and

(d) A serious effort has been made to retain trees of value to the community, which together with the removal of weeds and additional plantings proposed on the site has resulted in a well considered design and a sustainable development outcome for the site.

Ms Rayment’s report – March 2013 (Council)[64]

[64]Exhibit 22.

Ms Rayment had the following to say.

Alleged over-development

Ms Rayment disagrees with Mr Brown that the proposal represents an over-development resulting from the low density nature of the locality, the GFA exceedance, with the site frontage and the location of the driveway adjacent to the Roberts’ property. Appendix 3 to her report[65] is an aerial photograph showing the density in development footprint of houses in the area of 500m around the site. In her view, the proposed dwellings are commensurate with the low density nature of the Low Density Residential Area and the locality.
[65]Exhibit 22, page 38.

Gross Floor Area

Ms Rayment calculates the exceedance of the 30% GFA in Acceptable Solution A1.1 of Section 4.1 of the LMR Code as between 3.6% and 3.79% or 154.4m² to 179.7m² but regards that exceedance as minor and inconsequential for the following reasons:

(a) Averaged over the 11 houses the exceedance average is 14m² to 16.3m² per house. Given that there is no precise GFA exceedance per house and it varies from house to house the additional GFA is spread out across the site and all houses in similar but not necessarily equal proportions. That produces a different visual impression to one situation where the exceedance was applied in full to one large multi-unit dwelling. Given the spread of GFA, the exceedance is unlikely to have a perceptible impact;

(b) The spread of the 11 houses across the large site area further diminishes any ability to visually perceive the extra GFA which, given the large site, results in a slightly larger floor plate without detrimentally affecting the achievement of reasonable boundary setbacks and overall height;

(c) Given that, of the 11 houses, only one is positioned at the street frontage, this diminishes even further any ability to visually perceive the extra GFA;

(d) GFA of 30% could be achieved on the exact same building envelope with no change to the building size, bulk or physical appearance if, for instance, an area the approximate size of the ensuite and central area housing the desk and linen cupboard on the upper level of each house was converted to a void area. In that case, the GFA of each house would be reduced by approximately 15m²without any change to the building envelope or physical size and shape of the development. Alternatively, the same result could be achieved if an additional tandem car space was located behind part of the garage on the ground level;

(e) In comparison with a multi-unit development, houses on standard lots do not have a maximum GFA Acceptable Solution. Rather, the Queensland Development Code sets out its Acceptable Solution site cover of 50% for houses which the subject proposal is not likely to exceed. Further, as the additional GFA does not result in the change of the number of dwellings proposed, there is no change to the proposed density. A higher number of dwellings of a smaller size could be achieved within the Acceptable Solutions, namely, 14 dwelling units of 100m² floor area or 18 dwelling units of 75m² floor area. The final density is dependant on the size of each dwelling unit proposed; and

(f) The proposed houses are attractively designed, the landscape design meritorious and the proposal is as attractively designed as any other in the locality.

Ms Rayment also considers Performance Criterion P1 of the LMR Code dealing with size and bulk is consistent with the low density nature of the locality because the design and placement of units give them the appearance, bulk and scale more consistent with houses within the locality than multi-unit dwellings. Further, the height of only two storeys is compatible with other houses in the locality and complies with Acceptable Solution A1.2. The use of design elements including verandas, recesses, variations between materials and texture, variation in building form, heights and roof forms each contribute to a reduction in the appearance of building bulk and satisfies Acceptable Solution A1.1 of Section 5 of the LMR Code. Further, she says, it is a reasonable expectation that the site will be developed for multi-unit dwellings of appropriate designs and that the GFA of a larger site will be potentially higher than the equivalent GFA on a smaller site given the ability to internalise potential amenity impacts and to maximise internal setbacks. For those reasons, the proposal co-exists comfortably in the low density locality despite the GFA exceedance.

Ms Rayment agrees with Mr Ovenden that the reference in the Statement of Intent for the Low Density Residential Area to “strict adherence to a maximum Gross Floor Area of 30% of the site area” must be read in context against the LMR Code which specifies the 30% GFA as an Acceptable Solution only. In Ms Rayment’s opinion, despite the GFA exceedance, the proposal achieves the broader Intent of City Plan.

Width of site frontage

As to the 8m deficit in the 32m frontage to Gilruth Road, Ms Rayment points to the irregular shape of the site at an average width of over 40m, a maximum of 54m with that widest section extending for 48.3m or 44.88% of the site depth. The majority of the site depth is over 50m wide. As is evidenced in Figure 1 in her report[66], the site configuration readily achieves a standard 50m x 62m rectangle through the centre of the site comprising over 3100m²with a width of at least 50m increasing to 54m for its majority.
[66]Exhibit 22, page 2.

Ms Rayment concludes that the smaller frontage is sufficient for the scale and form of the development and is in fact an advantage as it allows one house to be constructed at the site frontage thus assisting in diminishing the overall scale of the proposal.

Driveway location

Ms Rayment refers to the 0.484m distance between the driveway and the boundary of the Roberts’ property as a pinch point but points out that the driveway meanders through the site resulting in the setback from the Roberts’ property ranging from over 4m down to that pinch point of 0.484m. This provides sufficient opportunity for landscape screening along the property boundaries.

Location of house 11

In Ms Rayment’s view, house 11 is sited acceptably because the boundary setbacks range from 0.533m to 4.598m, with the closest point being to the solid garage wall which could have been built to the boundary in residential areas. In her view the proposal achieves Acceptable Solution A13.1 of the LMR Code which allows a side boundary setback less than 1.5m where the wall is no more than 3.5m high and no more than 15m long. The relevant garage wall with a setback of 0.533m is approximately 3.35m high and 6.2m long and the rest of the wall is set back approximately 3m which is in excess of the 2m and 2.5m for walls up to 7.5m and 10.5m in height respectively set out in A13.1.

Character and amenity

Ms Rayment considers the proposal is consistent with and will have no unacceptable adverse impacts on either the character or residential amenity of the area.

Alleged conflict with City Plan

Ms Rayment in her report discusses all Sections of City Plan said by Mr Brown to give rise to a conflict and concludes the proposed development complies. Hence no conflict arises with the possible exception of the tension between the reference to strict adherence to the maximum GFA of 30% in the Statement of Intent for the Low Density Residential Area and that 30% figure presenting as an Acceptable Solution in A1.1 of the LMR Code.

Ms Rayment’s sufficient grounds in the event of conflict with City Plan

But even if that conflict is found, Ms Rayment considers it minor and technical only and that sufficient grounds exist to approve the proposal despite the conflict. Those grounds are:-

(a) The proposal meets the performance solution in relation to bulk and scale;

(b) The proposal has been designed to complement the locality in which it is situated;

(c) It has attractively designed buildings and landscaping and will provide a pleasant living environment for its occupants;

(d) It complies with the LMR Code and is therefore identified as generally appropriate development in the Low Density Residential Area;

(e) It promotes the achievement of the citywide DEOs by contributing positively to providing housing choice and diversity and the Low Density Residential DEOs by maintaining the predominant building form, set within green landscaped areas and retaining indentified vegetation; and

(f) Housing choice and diversity is actively encouraged for low density areas under City Plan on sites of sufficient area, particularly in localities with good access to transport, community services, commercial facilities and public parkland.

(g) The character, location, siting, bulk, scale, shape, size, height, density, design and external appearance accords with the reasonable expectations of the DEOs for the Low Density Residential Area;

(h) It will present positively within the street scope and not detract from the appearance, environment or amenity of the locality;

(i) It does not generate greater traffic movement or hazard than reasonably expected in the surrounding locality and is suitable for the capacity of the road system;

(j) It is accessible to both private and public transport and has an adequate level of utilities and infrastructure for the use;

(k) Noise generated by the proposal is understood to be within levels expected for the area, and conditions of approval together with notations on the plans include the provision of an acoustic fence for the driveway and communal recreational area;

(l) It will not result in unreasonable risk or hazard onsite or to adjoining land; and

(m) It will not result in negative community impacts and will increase housing choice within the area.

Ms Rayment’s overall conclusions

Ms Rayment expressed her overall opinion that proper planning supports the proposed development because:

(a) It is consistent with the SEQ Regional Plan land use designation;

(b) It is consistent with the Strategic Planning designation for the Brisbane City Plan as a Residential Neighbourhood in which there should be housing choice;

(c) It is consistent with the DEOs for the Low Density Residential area;

(d) It is situated in an area designated for low density multi-unit dwelling development on sites over 3000m²;

(e) It is Impact Assessable (Generally Appropriate) and is therefore clearly envisaged to occur in the area;

(f) It is compliant with the applicable codes; and

(g) It can be conditioned to minimise any potential adverse amenity impacts.

As a further step, Ms Rayment assessed the proposal on the hypothetical basis that it was Impact Assessable Generally Inappropriate rather than Generally Appropriate, as it is, and concluded that, even in those circumstances, it did not offend the criteria referable to a Generally Inappropriate Development.[67]

[67]Exhibit 22, para 3.5.49.

Evidence of Non-expert witnesses

Six of the 34 submitters gave evidence including Mr Pickford who gave expert evidence which I have already addressed. Ms Pastellas, Mr Hankamer, Mrs Roberts, Dr Lehnert and Mr Buckingham also gave evidence. A bundle of the submissions made by each of the ten submitters is in evidence.[68]
[68]Exhibit 3.

The issues raised by all submitters in their written submissions and the oral evidence of the abovementioned may be summarised as follows:

(a) 11 dwellings is inconsistent with a low-density residential area;

(b) The development conflicts with the character of the surrounding area;

(c) The site is home to significant wildlife and flora. The development will require removal of trees and natural vegetation and will inevitably affect the site’s flora and fauna. This is in conflict with Kenmore’s green environment;

(d) The development contradicts the Brisbane City Council’s pro-environment policy;

(e) Kenmore’s substandard public transport, specifically the lack of a train line, must be addressed prior to any development taking place, otherwise there will be an increase in congestion;

(f) Gilruth Road is already dangerous owing to a ‘bottleneck’ shape and a crest which creates poor visibility. The added traffic from 11 dwellings, and the resulting increase in street parking causing narrowed street access, will further reduce road safety;

(g) The dwellings are located too close to the boundary of the submitters’ properties and will cause an unreasonable increase in noise and pollution. Of particular concern are the vehicles and garbage trucks which will access the site via the driveway;

(h) The close proximity of the dwellings to the boundary, and the angle in which they overlook the surrounding residencies, will create an unacceptable invasion of privacy;

(i) The development will block the breezes and natural light currently enjoyed by the submitters;

(j) Stormwater runoff is an issue for some residents as the site sits atop a hill. An increase in density combined with the removal of canopy cover may exacerbate this issue;

(k) The dwellings are two storey and don’t have pitched roofs and so are incongruent with the surrounding 1960s/1970s dwellings.

Relevance of Subdivision Code[69]

[69]Exhibit 39.

The Appellants rely on the relevance of the Subdivision Code to found one of the asserted conflicts with City Plan. It is convenient to deal with that issue at the outset.

Application details

The application before the Court is for a material change of use of premises and associated building work to the erection of 11 freestanding houses as a multi-unit dwelling in place of the existing single house on the site.[70] It is not an application for subdivision of land. The Level of Assessment for this multi-unit dwelling proposal is to be found in City Plan Chapter 3, para 5.2.3[71]. The Codes relevant to that Impact Assessment are described as:

Residential Design – Low Density, Character and Low-medium Density Code, and where located in the Demolition Control Precinct: Residential Design – Character Code.

The subject site is not in a Demolition Control Precinct. Significantly, there is no mention of the Subdivision Code as a relevant Code.

[70]Exhibit 2, page 8.

[71]See Exhibit 6, pages 47 and 50 Impact Assessment - Generally Appropriate.

Use of Codes

City Plan[72] relevantly sets out how to use codes in these terms:-
[72]Exhibit 6, page 70.

“Sub paragraph 1.1 how to use the Codes – Codes may used in either self-assessment, code assessment or impact assessment. The lvel of assessment table in Chapter 3 determines the level of assessment that applies to development in different Areas. However, this may be varied by the Local Plans in Chapter 4.
A ‘primary’ Code is a Code listed as an Applicable or Relevant Code in the level of assessment table.
A ‘secondary’ Code is a Code called up in a ‘primary’ Code.”

The site is not in a Local Plan Area.

When one turns to the Residential Design – Low Density, Character and Low-medium Density Code[73], there is a list of secondary Codes used in Impact Assessments. Thirteen secondary Codes are set out but again there is no reference to the Subdivision Code.
[73]Exhibit 6, page 84.

Subdivision Code

The opening paragraph of the Subdivision Code[74] is, relevantly, in these terms:
[74]Exhibit 39.

“Figure 1 – Application:
This Code applies to development applications for reconfiguring a lot. This Code will be used in assessing all types of subdivisions, ranging from a single site (where no streets are created) to new residential communities as well as other lot reconfiguration.
This Code will be used to assess applications for single unit dwellings, as the application must involve a combined material change of use (whether or not including building work) component with an associated reconfiguring of a lot component. …
Section 5 of this Code applies to all subdivisions unless specifically addressed elsewhere in Section 6. …
Section 6 of this Code applies only to specific types of subdivisions that may occur in any Area including:
·community title development in Residential Areas;
·…
·…”

Paragraph 6.2 of the Subdivision Code is relied upon by the Appellants in asserting the Code’s relevance and is, relevantly, in these terms:

“6.2 – Community title subdivision
Where the subdivision of land is proposed under a Community Management Scheme, and is not a subdivision of existing or approved buildings, the development will comply with the general design elements set out in Section 5, except as varied in this Section.
If buildings are to be constructed prior to the reconfiguration of lots, assessment of the proposal will be undertaken as part of a material change of use application. Reconfiguration of the lots can be assessed simultaneously or subsequently as Code assessable development against the relevant parts of this Code.

The Appellants argue that the operation of the Subdivision Code is attracted by the opening sentence of the second paragraph above which, it is said, expressly captures the present situation where buildings are proposed prior to reconfiguration of a lot. They further say that the application of this Code is not expressed to be limited to circumstances where any reconfiguration of lots application also fell for assessment. As I understand what the Appellants are seeking to say it is this. The present application does not involve an application for reconfiguration of a lot but it does involve material change of use and associated building work which latter work will be carried out before the titling to the development is finalised. At some time in the future an application for a building format plan will be made.

The Appellants say that if Metacap proceeds to use a building format plan of subdivision, that will necessarily involve the division of the land into 12 lots with 11 houses, and the at balance lot common property. Hence it would involve a subdivision of land attracting the Subdivision Code. Importantly, they go on to say that if that wasn’t the situation and Metacap proposed to subdivide an existing building the situation may be different. There is no evidence of what Metacap might do in the future and this argument seeking to attract the Subdivision Code is founded on speculation to that extent.

Conclusion re relevance of Subdivision Code

I do not accept the Appellants’ argument. The opening words of the first paragraph of Section 6.2 of the Subdivision Code could not be clearer in expressing the concept that Section 5 applies only to the subdivision of land, except as varied in Section 6.2. Interpretation placed on the second paragraph of Section 6.2 does not amount to a variation of the type contemplated in the first paragraph so as to trigger the operation of the Code. The Subdivision Code has no relevance to the assessment.

Level of assessment tables
The first column of the level of assessment tables lists the types of development that are assessable against the planning scheme and in each case the second column lists the Applicable/Relevant Codes.
In some cases the level of assessment table requires only material change of use, operational work, building work or reconfiguration of a lot to be assessed against the planning scheme. If the level of assessment table does not specifically refer to one of these components, any material change of use and/or building work (associated with a use or structure specified in the level of assessment table) will need to be assessed against the planning scheme (other than minor building work and any other exempt development).
Assessment of building work against the planning scheme results in preliminary approval for building work. A subsequent development permit for building work will be issued only when the building has been assessed against the Building Act.
Where a material change of use, reconfiguration of a lot or building work is identified as assessable development, the application will also be assessed for building, operational, plumbing and drainage works as regulated by the Plan such as carparking, landscaping and
stormwater drainage, to the extent necessary to mitigate any potentially negative impacts.
Some Local Plans will change the level of assessment. Where this occurs it is stated in the Local Plan and the level of assessment tables of this chapter.”
“4Elements of the City[191]
[191]City Plan Ch 2, page 13; Ex 6 page 17.
4.2.2     The response
Residential neighbourhoods are the most extensive of the City structure elements. They contain the elements that help make Brisbane so livable: the residential areas and related amenities and facilities such as convenience shopping, local parkland, schools, churches, hotels and clubs.
The components of the residential neighbourhoods strategy are to:
•            meet realistic expectations of future amenity
•            ensure housing choice and affordability
• promote increases in density near high quality public transport and close to the City Centre

•            maintain character
•            provide access to services and facilities
•            maintain lands of environmental or scenic value
• discourage isolated subdivisions in developing areas and encourage land amalgamation and forward
planning of neighbourhoods

• provide for some mixed use development
• coordinate the orderly and cost effective provision and augmentation of infrastructure.

4.2.2.1 Meeting realistic expectations of future amenity
People should be able to choose their residential location with realistic expectations for the future amenity of the area. The Plan’s strategic directions in this regard are to:
•prevent intrusion of development that could seriously detract from residential amenity
• allow development that complies with the Plan
• mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy
• ensure new residential development contributes to pleasant living environments and is designed to integrate with, rather than be segregated from, existing development in the area
• avoid through traffic in residential locations
• ensure residential neighbourhoods are adequately buffered to mitigate impacts of industrial and other non–residential uses
• protect views from the impacts of development only where nominated in a Local Plan, or where development exceeds the relevant Code’s Acceptable Solution for building height, and as a result detracts from views from nearby properties.

These community expectations also need to be balanced with expectations of housing choice to meet resident needs during all stages of their life and to meet different lifestyle choices. These choices are discussed below in 4.2.2.2.
4.2.2.2Housing choice and affordability

The City’s residential neighbourhoods are to provide sufficient housing choice to enable residents to remain in their neighbourhood through all the stages of their life if they wish. Housing choice requires a variety of housing types and tenures to be available across the City and to enable access to housing for a wide range of income levels.
…

4.2.2.4 Maintaining character
Each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the City, topography, vegetation, social composition, history and proximity to a local centre. Development should respect and be compatible with the local character. In older suburbs, the unique character is derived mainly from the topography, urban layout and ‘timber and tin’ architecture. Much of this ‘timber and tin’ housing will remain and new development will reflect traditional design elements while allowing for innovative design responses. Whilst ‘timber and tin’ housing is a distinctive feature of Brisbane’s traditional building character, other less common housing styles and materials, such as masonry construction, are important and worthy of retention.”
“5 Residential Areas[192]
[192]City Plan Ch 3, page 27; Ex 6 page 45.
Residential Areas are the main component of Residential Neighbourhoods in the Strategic Plan.
The Plan has 5 different Residential Areas:
•            Low Density Residential Area
•            Character Residential Area
•            Low–medium Density Residential Area
•            Medium Density Residential Area
•            High Density Residential Area.
The general location of the Residential Areas throughout the City is indicated on Map C—Residential Areas. Reference should be made to the Scheme Maps to determine the exact Area Classification of a parcel of land.
The different Residential Areas reflect different living environments envisaged in different parts of the City. Accordingly the scale and intensity of built form will vary between Areas and Council will regulate development through minimum lot sizes for houses, make no provision for the subdivision of existing or approved buildings involving a house, minimum site area and intensity for multi–unit and single unit dwellings and controls on demolition or removal of pre–1946 housing.
An important characteristic of the City’s older suburbs is the traditional architecture. Demolition Control Precincts are locations in the older suburbs where pre–1946 housing is still dominant. Specific provisions apply in the Demolition Control Precincts to preserve and complement much of this architectural character, by requiring:
•            an application for demolition of a building
• compliance with the Residential Design— Character Code for new residential development.

Planning Scheme Maps show Demolition Control Precincts. Residential Areas will be comprised mainly of dwellings. However, Residential Areas will also accommodate activities servicing local neighbourhood needs, such as shops, child care centres and other community facilities. Incompatible activities such as industry and service stations will be excluded from Residential Areas.

5.1 General Provisions
5.1.1 Desired Environmental Outcomes
The following DEOs apply to all Residential Areas. Refer also to DEOs for each specific Area.
1.…
2.Houses are located on new vacant lots that comply with the minimum size requirements provided in the Plan and the subdivision does not occur of existing or approved buildings including houses, so as to maintain the character and amenity of residential neighbourhoods and the expectation of residents.
3.Housing is predominantly low density, with higher densities in or near Multi-purpose Centres and near public transport.
4.Neighbourhoods have a sense of place based on their location, residential nature, heritage, topography, natural environment, bill of form and proximity to a local Centre.

5.2 Low Density Residential Area
5.2.1 Intent

The predominant form of development is detached houses, 1 or 2 storeys in height. Other residential development such as aged persons homes will also be located in the Low Density Residential Areas. Multi–unit dwellings will only be allowed on sites over 3,000m², at a scale and density commensurate with the Low Density Residential Area. This will be achieved by strict adherence to a maximum gross floor area of 30% of the site area. Minimum lot size in established areas will be 400m², except in the Demolition Control Precinct where the minimum lot size will be 450m². No provision is made for the subdivision of existing or approved houses.
Single unit dwellings are not appropriate in the Low Density Residential Area, as the very small lot sizes are considered to be inconsistent and incompatible with the intended subdivision for the Area.
Building envelopes for houses on small lots are defined so that amenity impacts to nearby dwellings and their private open spaces are minimised, in terms of maintaining access to sunlight, daylight and privacy. The building envelopes also seek to increase safety from fire hazard, maximise private landscaped space for new houses and avoid overbearing development that would occur if the bulk and setbacks of houses were out of scale or character with houses on adjoining lots.
Groups of buildings in the Low Density Residential Area are included in Demolition Control Precincts. In these locations pre–1946 housing will be retained and new development will reflect pre–1946 architectural character.
5.2.2 Desired Environmental Outcomes
1.   Low density living environments predominantly comprise separate houses of no more than 2 storeys.
2.   Neighbourhoods have a distinctive subtropical character where low rise buildings are set in green landscaped areas. Natural features such as creeks, gullies, waterways and vegetation are retained.
3.   In Demolition Control Precincts pre–1946 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.”
5.2.3 Level of assessment—Low Density Residential Area, Character Residential Area and Low–medium Density Residential Area[193]
[193]City Plan Ch 3, page 29; Ex 6 page 47.

Impact Assessment

4. Multi-unit Dwelling

• in the Low Density Residential Area—where complying with the Residential Design—Low Density, Character and Low–medium Density Code and on a site over 3,000m²
Residential Design—Low Density, Character and Low–medium Density Code, and where located in the Demolition Control Precinct: Residential Design—Character Code

Multi-unit dwelling:[194]
[194]City Plan Ch 3, page 74; Ex 6 page 64.

“A use of premises as the principal place of longer term residence by several discrete households, domestic groups or individuals irrespective of the building form. Multi-unit dwellings may be contained on one lot or each dwelling unit may be contained on its own lot subject to Community Title Schemes. Examples of other forms of multi-unit dwelling include boarding house, retirement village, nursing home, orphanage or children’s home, aged care accommodation, residential development for people with special needs, hostel, institution (primarily residential in nature) or community dwelling (where unrelated people maintain a common discipline, religion or similar). The term multi-unit dwelling does not include a house or single unit dwelling as defined elsewhere.”

“Codes and Related Provisions[195]
[195]City Plan Ch 5, page 1; Ex 6 page 69.

1Introduction

This chapter provides details of Codes used in assessment. The Codes give guidance on specific aspects of development that apply to different Areas or types of development. The Codes are listed alphabetically for ease of use.
1.1 How to use the Codes
Codes may be used in either self assessment, code assessment, or impact assessment. The level of assessment table in Chapter 3 determines the level of assessment that applies to development in different Areas. However, this may be varied by the Local Plans in Chapter 4.
A 'primary' Code is a Code listed as an Applicable or Relevant Code in the level of assessment table.
A 'secondary' Code is a Code called up in a 'primary' Code.
In cases where no specific Relevant Codes are identified in the level of assessment table for impact assessable development the Application section at the front of the Code provides a useful guide to the circumstances in which the Code is likely to be considered in assessing an application.
The Codes contain the following components.
Application
This component states when the Code will apply in self or code assessment, and when the Code may be considered in impact assessment.
Where a Code is called up as a ‘secondary’ Code by some other Code, the Code is to be read as part of that other Code.
Using this Code
This component describes how the Code will be used in either self, code or impact assessment, either as a 'primary' Code or as a 'secondary' Code.
This section may include references to other legislation and Council local laws that may need to be complied with. These references are for guidance only and it should not be implied that these references are inclusive of all other legislative or local law requirements.
This section may also include a glossary of terms. These terms modify a definition within Chapter 3, but only for that Code, or are used to explain the meaning of terms that are used in the Code.
Purpose
This component explains what the Code seeks to achieve.
Performance Criteria and Acceptable Solutions
The Acceptable Solutions are in the right hand column of the Code table. In some cases meeting an Acceptable Solution requires compliance with Australian Standards or the Plan's Planning Scheme Policies.
For self assessment a proposal must comply with all specified Acceptable Solutions.
For code assessment a proposal that complies with all Acceptable Solutions will be approved.
For appropriate impact assessment a proposal that complies with all Acceptable Solutions will be approved, subject to:
• being able to be conditioned to mitigate any potential adverse impacts

•            meeting the Code's purpose
•            meeting the Plan's DEOs.
The Performance Criteria are in the left hand column of the Code table. They provide a statement of the outcome that the Acceptable Solution must achieve. A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met.
Notes may be included in specific Performance Criteria or Acceptable Solutions highlighting:
•            other legislation that may also need to be complied with
•            local laws that may also need to be complied with
• the reporting procedures that may assist in demonstrating compliance with particular Performance Criteria or Acceptable Solutions.

For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code's Purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code's Performance Criteria. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.”

“Residential Design—Low Density, Character and Low–medium Density Code[196]
[196]City Plan Ch 5, page 165; Ex 6 page 84.
3Purpose

As the Areas to which this Code applies will contain a mix to houses and multi–unit development, the purpose of this Code is to effectively manage impacts of the new development on neighbours while:
• ensuring new development is compatible in scale and design with neighbouring houses
• retaining pre–1946 dwellings in Character Residential Areas, with new development at low intensity in keeping with pre–1946 architectural themes
• retaining pre–1946 dwellings or ensuring new development in Demolition Control Precincts is in keeping with pre–1946 architectural themes
• encouraging multi–unit development that provides a pleasant living environment for its occupants
• encouraging low cost and special needs housing such as boarding house or aged care accommodation by allowing an increase in gross floor area and a reduction in on–site carparking where the low cost and special needs housing does not compromise local amenity, is secured for at least 10 years and is administered by a housing cooperative, Government or Council agency or charitable organisation
• ensure that multi–unit development does do not impact adversely on landscape or ecological values.”

Part A—Performance Criteria and Acceptable Solutions

4.1 Multi-unit dwellings in Low Density Residential Areas

Performance Criteria Acceptable Solutions

P1     Building size and bulk must be consistent with the low density nature of the locality
A1.1    Gross floor area is no more than 0.3 times the site area

A1.2    Building height at any point is no more than 8.5m above ground level and 2 storeys

A1.3    The site area is a minimum of 3,000m²and has a minimum frontage of 40m

P2     Larger developments must integrate with the neighbourhood and form part of the local street network
A2.1    Development on a site over 3,000m²:

•   includes some houses, particularly near road frontages, with the proportion of houses increasing for larger sites

•   is connected to and part of the neighbourhood rather than a separate semi–private enclave

•   is integrated with the existing or proposed local street network

•   provides for legible and direct access for all residents to surrounding and future community facilities in the area such as schools, parks, neighbourhood shops and public transport

•   clearly defines public, communal and private open space

          Refer to Figure a

Part B—General Performance Criteria and Acceptable Solutions for multi-unit dwellings

Performance Criteria Acceptable Solutions

Building design and setting

P1     The appearance of building bulk must be reduced by design elements
A1.1    The building bulk is reduced by a combination of:

•   verandahs

•   recesses

•   variation in materials, colours, and/or textures including between levels

•   variation in building form

          Refer to Figure d

A1.2    Roofs include pitches, gables or skillions

A1.3    Services structures and mechanical plant are screened or designed as part of the building

P2     The development must be orientated to the street and facilitate casual surveillance of the street

Note: north or north–east facing windows, balconies or decks may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code where this will significantly improve passive solar design

A2      Building has large windows or balconies facing the street

          Refer to Figure d

P3     Screening and partial enclosure of balconies is limited to provide privacy for neighbours and comfort for residents without resulting in unattractive buildings or an appearance of excessive bulk or restricting opportunities for passive surveillance of the street
A3.1    Screening of balconies is limited to the side and rear boundaries and the sides of balconies between those units where needed to prevent noise and overlooking of other units or dwellings and recreation areas

A3.2    Street frontages of balconies are not screened or enclosed by shutters, glazing, louvres, or similar permanent structures

P4     The front setback must complement the setbacks prevailing in the street
A4.1    In established areas, the front setback is within 20% of the average setback of adjoining buildings

A4.2    In newly developing areas, the setback from a street frontage is a minimum of 3m

P5     Landscaping must be consistent with the established landscape character of the area and accommodate the retention of existing vegetation, including street trees A5      Established trees are retained where removal is not required to site new buildings

P6     The development must include landscaping that contributes to a pleasant and safe environment and integrates well with the neighbourhood
A6.1    Landscape design allows the overlooking of the street and pedestrian entry areas

A6.2    Landscape design emphasises a clear pedestrian entry point

P7     Fencing and walls must:

•   assist the development to be orientated towards the street

•   assist safety and surveillance of the street and entry areas

•   enable use of private open space abutting the street

•   assist in highlighting entrances

A7.1    High solid front fences are avoided so that each dwelling unit can observe the street

A7.2    Height of fences/walls on any road alignment does not exceed:

•   1.5m if 50% transparent

•   1.2m if solid

A7.3    Solid front fences/walls above 1.2m high are provided only on arterial or suburban routes and:

•   living areas can maintain surveillance of the street

•   fences longer than 10m have gates, indentations or detailing to provide visual interest

•   the fences are limited to 60% of the frontage where private open space fronts the street

P8     The location, height, extent and materials of retaining walls must be designed to minimise visual impact

A8.1    Combined height of retaining wall and fence does not exceed 2m

A8.2    Retaining walls are set back from any boundary and are stepped or terraced, so that landscaping can soften visual impact

P9     Development must provide sufficient communal and private open space for residents needs
A9.1    A minimum 30% of the site is provided as open space each with a minimum dimension of 2m

A9.2    A landscape area of minimum dimension of 2m is provided along the full frontage of any road frontage (excluding crossover and pedestrian access only)

A9.3    For a ground floor dwelling, ground floor private open space is provided with:

•   minimum area of 35m²

•   minimum dimension of 3m

A9.4    For a dwelling unit above ground level, private open space is provided as a balcony with a minimum dimension of 3m

P10   Communal open space for clothes drying and common recreation facilities must be provided where a significant proportion of dwellings do not have access to ground floor private open space A10     Where more than 25% of dwellings do not have access to ground floor private open space, communal open space for clothes drying and common recreation facilities is provided with at least one continuous area a minimum of 50m² with a minimum dimension of 4m

Performance Criteria Acceptable Solutions

Privacy and access to sunlight

P12   Habitable spaces must not directly overlook dwellings on adjacent land

        Note: north or north–east facing windows, balconies or decks may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code where this will significantly improve passive solar design

A12     Where habitable room windows look directly at habitable room windows in an adjacent dwelling within 2m at ground floor level or 9m at levels above ground floor, privacy is protected by:

•   sill heights a minimum 1.5m above floor level

          OR

•   fixed opaque glazing in any part of the window below 1.5m above floor level

          OR

•   fixed external screens

          OR

•   fencing to a minimum 1.5m above ground floor level (only applies to overlooking from windows at ground floor level)

          OR

•   achieving the privacy solution shown in Figure e

          OR

•   where screening of decks is required, it is solid translucent screens, perforated panels, or trellises that are permanent and durable and have a maximum of 25% openings

          Refer to Figures e, f, g and h

P13   Development must not significantly reduce daylight to open space and habitable rooms in adjacent development
A13.1 The side boundary setback, except for a wall built to the boundary, is a minimum of:

•   1.5m for a wall up to 4.5m high

•   2m for a wall up to 7.5m high

•   2m plus 0.5m for every 3m (or part of 3m) over 7.5m height for a wall over 7.5m high

•   less than 1.5m where the wall is no more than 3.5m high and no more than 15m long

A13.2 A wall built to a side boundary has:

•   a maximum height of 3m, unless it abuts a higher existing or simultaneously constructed wall

•   a maximum length of 15m where it does not abut an existing boundary wall

Note:
Where a wall built to the boundary has a height less than 2m measured on the adjacent property, it can extend the full length of the boundary, less any front or rear boundary setback

A13.3 Minimum rear boundary setback is 6m

          Note: minimum setbacks do not apply to eaves and sun shading devices

P17 Vehicle access and parking design and location must minimise impacts on neighbouring dwellings

        Noise disturbance must be mitigated by parking area location and fencing

A17.1 Vehicle parking is:

        • screened to minimise reflection of car headlights onto dwelling windows and attenuate noise

        • lit at night

        • separated from habitable windows to minimise noise and fumes disturbance

A17.2 Vehicle parking structures            are designed and located:

        • behind the building setback, or

        • behind or below the building so they are not visually dominant from a public street

        Refer to Figure k

        • to be compatible with overall building design in terms of height, roof form, detail, material and colours

        • as close as possible to the dwellings to be served

A17.3 The location of visitor    parking is discernible from        the street

A17.4 Acoustic screening is            provided next to any vehicle            movement or vehicle parking            areas along the side or rear            boundary

        OR

        A 2m wide vegetated buffer is provided next to any movement or parking areas

           along the side or rear            boundary

Performance Criteria

Acceptable Solutions

Managing light and noise impacts

P20 Noise from the development must not affect existing or likely future dwellings on adjacent land unreasonably

A20.1 Vehicle movement areas are located a minimum of 3m from any adjoining dwellings, or are provided with acoustic screening to the boundary

…

A20.4 The development complies with the Noise Impact Assessment Planning Scheme Policy

“Noise Impact Assessment Planning Scheme Policy[197]
[197]City Plan app 2, page 159; Ex 37.

1    Introduction
Generally, this planning policy is called up by the following Codes for impact and code assessable development:
•            Industrial Amenity and Performance Code
•            Residential Design Codes
•            Centre Amenity and Performance Code
•            Service Station Code
•            Subdivision Code
•            Structure Planning Code.
The Noise Impact Assessment Planning Policy (NIAPSP) seeks to assist with the decision making process for management of noise impacts through the planning process. The policy will be used to determine the noise impacts of, and on, development, to help achieve better planning outcomes by addressing potential noise impacts at the design stage.
The policy recognises that consideration of the potential impacts of noise at the planning stage is more effective than noise mitigation following development.
The policy identifies the legislative approach to noise, provides noise criteria that can be used to determine noise impacts from noise immissions and emissions.
The policy is further supported by noise planning guidelines and technical papers, which provide further guidance on the application of NIAPSP. They are more specific and provide interpretation of policy objectives outlined in this policy.
…
3Noise Sources

3.1 Noise emission & immission
In order to achieve the NIAPSP objectives, noise impacts must be assessed in terms of the effect that a development will have on the receiving environment. The receiving environment is both adjacent development (noise emission) and the internal environment of the proposed development (noise immission).
• noise emission is the noise emitted outwards (ie. the noise generated by the development).

Noise Emission should be considered for alldevelopment, with all potential sources of noise identified, quantified and mitigated in the planning and design stages. These sources include, but are not limited to, sound from industry, outdoor entertainment areas, car parks, drive–throughs attached to commercial development, and standard building equipment such as air conditioners, pumps and generators.
• noise immission is the noise received by the development when it is immersed in an ambient sound environment (ie. noise received by, or impacting on, the development from the surrounding environment).

For noise sensitive developments (especially residential development) this is sound from sources such as industry, road, air and rail traffic noise. Certain commercial developments may also be sensitive to external noise sources.
Another impact to consider is the future constraining effect on the land use of the surrounding area. For example, an industrial area generally creates noise from day–to–day operations. Development of a noise sensitive land use next to an area likely to generate noise, now or in the future, will have a constraining effect on the noise generator unless noise control is implemented to ensure appropriate noise levels at the development.
3.2 Intrusive noise
The EPP Noise and NIAPSP refer to Intrusive Noise. It is the intrusiveness of noise on the internal and/or external receiving environment of the development that the NIAPSP seeks to limit.
Intrusiveness can be measured by the increase in level of various noise measurement parameters or descriptors used to describe acoustic amenity. The change should not be such as to detrimentally alter acceptable levels of acoustic amenity, nor such as to impact on the well– being and environmental values of the community and individuals.
The intrusiveness, or impact, of noise emission can be assessed in a number of ways. The method will depend on the sensitivity of the receivers of noise from the development and the character of the ambient noise level without the development, compared to the character of noise level with the development. Situations may arise where the existing noise levels are already too high for an area, in which case, it may be prudent to ensure that the development does not make matters worse.
The nature and character of noise can relate to its frequency/repetitiveness, duration, level, tonal characteristics, impulsiveness or vibration and whether it is steady, fluctuating, intermittent, or any combination of these.”

“6 Planning assessment methodologies
6.1 Considerations when applying the assessment methodologies
6.1.1 Noise emissions and background creep

One of the aims of the policy is to prevent background creep, i.e. the progressive increase in background noise levels as new noise emitting activities locate in the area. To achieve this aim, the outside noise levels arrived at after applying the above emission assessment methodologies must not exceed the levels detailed in the table below:”

6.1.2 Environmental Protection (Noise) Policy limits

The EPP Noise specifies noise levels (planning levels) that may be used as a guide in deciding a reasonable noise level. These planning levels will be considered by Council, when determining the appropriateness of noise attenuation measures. However, they will not be used as limiting criteria.
There are variations to some criteria stated in the EPP Noise in the NIAPP. For example, the planning levels for roads and railways are not necessarily applicable to the planning issues involved in determining the land use allowed next to those beneficial assets. In some cases, the second and third methodologies may be the most appropriate.
However, planning decisions should strive to ensure that outdoor recreation areas are not exposed to unreasonable noise from existing surrounding land use. If the existing land use is:
• a beneficial asset such as a railway corridor, it is necessary to comply with recommended levels for those uses prescribed in the EPP Noise
• a non–beneficial asset, compliance should be with the acoustic quality objective of 55dB(A) Leq 24hrs”

“Natural Assets Planning Scheme Policy[198]
[198]City Plan app 2, page 123; Ex 38.

Schedule 1 Valuable ecological features

A. Areas, species and communities
1. Areas and species prescribed under the Nature Conservation Act 1992 and Nature Conservation (Wildlife) Regulation 1994, including areas subject to an Interim Conservation Order, and areas and/or species subject to a Conservation Plan.
2. Areas identified as of conservation significance under the Coastal Protection and Management Act 1995.
3. Areas identified as of conservation significance under the Integrated Planning Act 1997.
4. Areas identified in Section 1 of the Environmental Impact Assessment Planning Scheme Policy as impact assessable uses likely to require an Environmental Impact Assessment Report.
5. Areas within or adjacent to sites identified in Schedule 2 of this Policy.
6. Areas identified in State Planning Policy 1/97 Conservation of Koalas in the Koala Coast or areas of conservation significance identified in another State Planning Policy.
7. Endangered species/communities and areas of ecological significance identified in the Commonwealth Environment Protection andBiodiversity Conservation Act 1999.
8. Communitiess and/or ecosystems classified as ‘endangered’ or ‘of concern’ in the Queensland Environmental Protection Agency document Conservation Status of Queensland’s Bioregional Ecosystems (Sattler and Williams, 1999).
9. Areas being in holdings or having a common boundary with protected areas as defined under the Nature Conservation Act 1992 or a State Forest or Timber Reserve.
10. Habitat areas or features supporting 1 or a group of Significant Fauna Species, Significant Flora Species, and/or Significant Vegetation Communities as identified in Schedules 3, 4 and 5 of this Policy.
11. Areas of ecosystem diversity, including wetlands, waterways and coasts.
12. Habitat areas supporting a wide range of flora and fauna genera, species and/or communities, including bushlands of generally intact structure and composition, generally greater than 2ha in area.
13. Habitat areas supporting species and/or communities with high levels of endemism or with highly restricted distributions.
14. Habitat areas supporting species and/ or communities with high levels of representativeness.
15. Habitat areas supporting relict and/or ancient species and/or communities.
16. Habitat areas or species or communities at the limit of their geographical distribution.
17. Areas acting, or with the potential to act, as ecological corridors between habitat areas.
18. Areas acting, or with the potential to act, as movement corridors for significant species identified in this Policy.
19. Areas identified as places of natural heritage significance in the Heritage Register Planning Scheme Policy.
20. Areas subject to environmental and scenic constraint as identified in Local Plans.
21. Areas identified as Waterways, Waterway Corridors or Wetlands in the Waterway Code or Wetland Code and as indicated on the Planning Scheme Maps, and the flora and fauna species/communities and ecological processes supported by these areas.

22. RAMSAR sites.
23. Areas declared as Fish Habitat Areas under the Fisheries Act 1994.”

“Subdivision Code[199]
[199]City Plan Ch 5, page 227; Ex 39.
1        Application
This Code applies to development applications for reconfiguring a lot. This Code will be used in assessing all types of subdivisions, ranging from a single site (where no streets are created) to new residential communities as well as other lot reconfiguration.
This Code will be used to assess applications for single unit dwellings, as the application must involve a combined material change of use (whether or not including building work) component with an associated reconfiguring of a lot component.
…
Section 5 of this Code applies to all subdivisions unless specifically addressed elsewhere in Section 6. Compliance with these general design elements is required to achieve an acceptable level of performance in planning, design and development.
Section 6 of this Code applies only to specific types of subdivisions that may occur in any Area including:
•            community title development in Residential Areas;
•            rearranging the boundaries of a lot;
•            creating access easements;
•            dividing land into parts by lease;
•subdivision of existing and approved buildings, including proposed

• single unit dwellings;
• volumetric subdivision.
...”

“6.1 Dividing land into parts by lease and subdivision of existing or approved buildings (including proposed single unit dwellings), whether or not including land
A key principle of this Code is that if buildings are approved, they and the land can be separately titled either in freehold or community title.
The provisions in this Code relating to subdivision of existing or approved buildings do not apply to the subdivision of a House in the Residential Areas. A house (including the main dwellings, plus any secondary dwelling or ancillary/outbuildings) in a Residential Area is always strictly to remain on its sole lot.
A subdivision proposal that does separate these components of a house and includes them on individual title is inappropriate and incompatible development and is highly unlikely to be supported. This ensures that the expectation of residents for a high standard of residential amenity is protected.
Where reconfiguration is proposed in conjunction with an application for a use or uses that require assessment, the reconfiguration application will not be approved until the use application has been determined.
Where the development permit for reconfiguration relies on the construction of approved buildings/single unit dwellings, Council will only seal the plan of survey when the buildings/single unit dwellings have been built to lock–up stage.
Reconfiguration to create the freehold lot for a single unit dwelling must be assessed in an integrated manner with the associated material change of use component, and therefore the reconfiguration application will not be approved until the use application has been approved. A single unit dwelling must be contained entirely on its own freehold lot including open space, carparking and services.
Where the proposed development of single unit dwellings involves:
• more than 10 dwellings/lots (except for the conversion of a multi–unit dwelling to single unit dwellings) and/or
• the creation of new public streets Section 5 of this Code will apply to the assessment of the proposal, excluding minimum lot sizes. This ensures compliance with design elements to achieve an acceptable level of performance in planning, design and development.”

“6.2Community title subdivision
Where the subdivision of land is proposed under a Community Management Scheme, and is not a subdivision of existing or approved buildings, the development will comply with the general design elements set out in Section 5, except as varied in this Section.
If buildings are to be constructed prior to the reconfiguration of lots, assessment of the proposal will be undertaken as part of a material change of use application. Reconfiguration of the lots can be assessed simultaneously or subsequently as Code assessable development against the relevant parts of this Code.”

CITATION:	Hankamer & Ors v Brisbane City Council & Anor [2013] QPEC 28
PARTIES:	CLARE HANKAMER, BEN HANKAMER, PAUL BUCKINGHAM, DAVID PICKFORD, CAROL ROBERTS, VICKIE PASTELLAS, MICHELLE ATKINSON, VIOLA TEMPLE-WATTS, NATALIE SMITH AND RICHARD SMITH (Appellants) and BRISBANE CITY COUNCIL (Respondent) and METACAP DEVELOPMENTS PTY LTD (Co-Respondent)
FILE NO/S:	3429/2012
DIVISION:	Planning and Environment
PROCEEDING:	Submitter appeal
ORIGINATING COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	25 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2013 – 22 March 2013
JUDGE:	Searles DCJ
ORDER:	1. The appeal is dismissed; 2. The matter is adjourned to allow resolution of the conditions package; 3. Any conditions package should contain the following conditions:- (a) that any approval be conditioned with a requirement that the protected vegetation on the land under the Natural Assets Local Law 2003 and the Natural Assets Planning Scheme Policy not be interfered with other than in accordance with the conditions of the approval or under an approval given or an exemption applying under that local law; (b) that the Community Management Statement shall be required to contain a provision in its bylaws prohibiting any owner or occupier of a lot within the Scheme from interfering with any protected vegetation or causing or permitting interference with any protected vegetation on scheme land unless such interference is in accordance with a permit issued by the Council or is otherwise an exempt activity under the Natural Assets Local Law 2003; and (c) that the Community Management Statement contain a provision in its bylaws requiring that the height of vegetation along the boundary near houses 7, 8 and 9 at all times be kept at an appropriate height to avoid unreasonable shadowing of adjoining properties.
CATCHWORDS:	Submitter appeal – Application for a Development Permit for a multi-unit dwelling and preliminary approval for building work – Low density residential area – Low Density, Character and Low-Medium Density Code – Impact assessable (generally appropriate) – whether “strict adherence” to a maximum gross floor area required – whether Subdivision Code of Brisbane City Plan 2000 applies to assessment of development application – loss of valued urban vegetation and excessive encroachment into Tree Protection Zones – Tree Protection Management Plan – whether project arborist’s report too generalised – setbacks – shadows – amenity – density – width of site frontage – noise – whether strict compliance with City Plan performance criteria required – whether sufficient grounds for approval in event of conflict with City Plan Sustainable Planning Act 2009 (Qld) ss 241, 314, 324, 326, 493(2). Land Title Act 1994 (Qld) s 48C(1). Environmental Protection (Noise) Policy 1997 (EPP Noise) Act. Environmental Protection Act 1994 (Qld). Brisbane City Plan 2000—Volume 1 Natural Assets Local Law 2003 Natural Assets Planning Scheme Policy Noise Impact Assessment Planning Scheme Policy Subdivision Code Australian Standard – Protection of Trees on Development Sites South East Queensland Regional Plan Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337. SDW Projects v Gold Coast City Council [2007] QPELR 24. Bell v Brisbane City Council [2005] QPELR 557. Crane v Brisbane City Council [2004] QPELR 1. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Tod v Brisbane City Council (2004) QPELR 170 Nash v Brisbane City Council (2010) QPELR 313. Jensen Bowers Group v Gold Coast City Council (2011) QPEC 049 at [25]. Gorman v Brisbane City Council (2004) QPELR at [11]. Body Corporate for Kelly’s Beach Resort v Burnett Shire Council [2003] QPEC 23. Broad v Brisbane City Council (1986) 2 QdR 326. Wurtulla Investments Pty Ltd v Caloundra City Council [2004] QPEC 073 [73].
COUNSEL:	Appellants: A. Skoien Respondent: T. Trotter Co-respondent: B. Cronin
SOLICITORS:	Appellants: Tim Wishart Solicitor Respondent: Brisbane City Legal Practice Co-respondent: James Watt & Co, Solicitors

Performance Criteria	Acceptable Solutions
Building design and setting
P1 The appearance of building bulk must be reduced by design elements	A1.1 The building bulk is reduced by a combination of: • verandahs • recesses • variation in materials, colours, and/or textures including between levels • variation in building form Refer to Figure d A1.2 Roofs include pitches, gables or skillions A1.3 Services structures and mechanical plant are screened or designed as part of the building
P2 The development must be orientated to the street and facilitate casual surveillance of the street Note: north or north–east facing windows, balconies or decks may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code where this will significantly improve passive solar design	A2 Building has large windows or balconies facing the street Refer to Figure d
P3 Screening and partial enclosure of balconies is limited to provide privacy for neighbours and comfort for residents without resulting in unattractive buildings or an appearance of excessive bulk or restricting opportunities for passive surveillance of the street	A3.1 Screening of balconies is limited to the side and rear boundaries and the sides of balconies between those units where needed to prevent noise and overlooking of other units or dwellings and recreation areas A3.2 Street frontages of balconies are not screened or enclosed by shutters, glazing, louvres, or similar permanent structures
P4 The front setback must complement the setbacks prevailing in the street	A4.1 In established areas, the front setback is within 20% of the average setback of adjoining buildings A4.2 In newly developing areas, the setback from a street frontage is a minimum of 3m
P5 Landscaping must be consistent with the established landscape character of the area and accommodate the retention of existing vegetation, including street trees	A5 Established trees are retained where removal is not required to site new buildings
P6 The development must include landscaping that contributes to a pleasant and safe environment and integrates well with the neighbourhood	A6.1 Landscape design allows the overlooking of the street and pedestrian entry areas A6.2 Landscape design emphasises a clear pedestrian entry point
P7 Fencing and walls must: • assist the development to be orientated towards the street • assist safety and surveillance of the street and entry areas • enable use of private open space abutting the street • assist in highlighting entrances	A7.1 High solid front fences are avoided so that each dwelling unit can observe the street A7.2 Height of fences/walls on any road alignment does not exceed: • 1.5m if 50% transparent • 1.2m if solid A7.3 Solid front fences/walls above 1.2m high are provided only on arterial or suburban routes and: • living areas can maintain surveillance of the street • fences longer than 10m have gates, indentations or detailing to provide visual interest • the fences are limited to 60% of the frontage where private open space fronts the street
P8 The location, height, extent and materials of retaining walls must be designed to minimise visual impact	A8.1 Combined height of retaining wall and fence does not exceed 2m A8.2 Retaining walls are set back from any boundary and are stepped or terraced, so that landscaping can soften visual impact
P9 Development must provide sufficient communal and private open space for residents needs	A9.1 A minimum 30% of the site is provided as open space each with a minimum dimension of 2m A9.2 A landscape area of minimum dimension of 2m is provided along the full frontage of any road frontage (excluding crossover and pedestrian access only) A9.3 For a ground floor dwelling, ground floor private open space is provided with: • minimum area of 35m² • minimum dimension of 3m A9.4 For a dwelling unit above ground level, private open space is provided as a balcony with a minimum dimension of 3m
P10 Communal open space for clothes drying and common recreation facilities must be provided where a significant proportion of dwellings do not have access to ground floor private open space	A10 Where more than 25% of dwellings do not have access to ground floor private open space, communal open space for clothes drying and common recreation facilities is provided with at least one continuous area a minimum of 50m² with a minimum dimension of 4m