Herbert v Brisbane City Council
[2004] QPEC 17
•14 May 2004
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Herbert & Ors v Brisbane City Council & Anor [2004] QPEC 017
PARTIES:
LEONARD SIDNEY HERBERT and PAULINE ALICE HERBERT
and
GREGORY HOWARD NUTTING and SUSAN ANN NUTTING
and
JOHN PETER SOPHIOS and ANGELA HELEN SOPHIOS
and
ANGELO ROSSETTI and ERENE ROSSETTI (Appellants)v
BRISBANE CITY COUNCIL (Respondent)
and
NORRIS CLARKE & O’BRIEN PTY LTD
(Co-Respondent)FILE NOS:
2524 of 2001
2525 of 2001
2526 of 2001
2527 of 2001PROCEEDING:
Appeal
DELIVERED ON:
14 May 2004
DELIVERED AT:
Brisbane
HEARING DATES:
27, 28, 29, 30 April 2004
JUDGE:
Judge Brabazon QC
ORDER:
Appeal Allowed. Set aside the Decision Notice of 12 April 2001
CATCHWORDS:
LOCAL GOVERNMENT – TOWN PLANNING – Appeal against preliminary approval – Attached housing – Compliance with 1987 Brisbane Town Plan – Compliance with Section 6.1.30(2) Integrated Planning Act – Whether strict adherence to Plan required to obtain planning relaxations – Whether reasonable loss of views can occur to neighbours where strict adherence to Plan not observed.
LOCAL GOVERNMENT – TOWN PLANNING – Appeal against preliminary approval – Attached housing – Compliance with 1987 Brisbane Town Plan para. 6.6.6(d) – Whether a three storey dwelling can be within ten metres of a side or rear boundary – Whether the degree of impact on neighbours is such that a relaxation of that provision is appropriate.
LOCAL GOVERNMENT – TOWN PLANNING – Appeal against preliminary approval – Attached housing – Adherence to maximum gross floor area – Court’s discretion to relax development standards for gross floor area.
LOCAL GOVERNMENT – TOWN PLANNING – Appeal against preliminary approval – Application lodged under former development plan – Court’s discretion as to weight of current City Plan – Integrated Planning Act 1997 (Qld) ss 6.1.29, 6.1.30, 4.1.52(2)(a).
Integrated Planning Act 1997 ss 4.1.50(2), 4.1.52(2)(a), 4.1.52(2)(b), 6.1.2(3), 6.1.29, 6.1.30,
Body Corporate and Community Management Act 1997
Cases considered:
Bhat v Brisbane City Council [2003] QPELR 109
Boge v Brisbane City Council [1998] QPELR 244
Cromar Pty Ltd and Cronin v Brisbane City Council [1966] QPELR 84
Norris Clarke & O’Brien Pty Ltd v Brisbane City Council [1996] QPELR 262
Vynotas Pty Ltd v Brisbane City Council [2001] 112 LGERA 206
Weightman v Gold Coast City Council [2002] QCA 234
COUNSEL:
Mr A Heyworth-Smith for the appellants
Mr B Job for the respondent
Mr S Ure for the co-respondentSOLICITORS:
Brisbane City Legal Practice for the respondent
MacDonnells Solicitors for the co-respondent
The Appeal
In Chatsworth Road, near the corner of Henzell Terrace, two old Queensland houses sit side by side. They are built close to Chatsworth Road, and have relatively large back gardens. It is proposed that the back gardens be used to erect a three story residential building. It would contain four attached houses. They would have access to Henzell Terrace, along a driveway which is presently part of the house property closer to Henzell Terrace. Such an increase in density is now a familiar development in Brisbane.
There is opposition from four neighbours. They say that the proposed development will unduly spoil the views of those behind it, is too big and does not comply with the planning schemes. It would be an over development of the land.
This appeal was concerned with issues about the impact on views, the height of the building, its gross floor area, and the provision of open space for its residents, the set backs from side boundaries, and the reasonable expectations of nearby residents.
Changes to the Application
There are some complicating factors. The development application was lodged with Council several days before the commencement of City Plan 2000, on 1 November 2000. Despite the time that has now passed, the application must still be assessed against the requirements of the repealed 1987 Town Plan. The court has to decide the appeal based upon the laws and policies applying when the application was made. However, it may give such weight to City Plan as it considers appropriate. See s.6.1.29, s.6.1.30 and s.4.1.52(2)(a) of the Integrated Planning Act 1997 (IPA).
Secondly, the nature of the application itself has changed. At first, it was proposed that the land should be reconfigured, so that the existing houses would each be on a freehold title, and five attached houses would be on freehold titles.
There were some negotiations with Council. The five attached houses had been proposed, but that was reduced to four. It was also agreed that the attached houses should not have freehold titles, but rather should be the subject of a building format plan under the Body Corporate and Community Management Act 1997 (BCCM).
By the time of this appeal, the proposal was for the two detached houses and the four attached houses to be on one title, under the BCCM. The likely result is that shown in Exhibit 5. There would be a fence between the two detached houses and the attached houses, and the common property around the detached houses would be subject to exclusive use by-laws, in favour of their owners. The Plan shows a narrow pathway on the western side, so that those living in the attached houses could easily reach Chatsworth Road, rather than using the driveway onto Henzell Terrace.
The appellants objected to that last change, saying that it amounted to more than the minor change to an application permitted by s.4.1.52(2)(b) of IPA:
“If the appellant is the applicant or a submitter for a development application, the court must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”
That preliminary point was decided against the appellants, and the appeal proceeded. It was made clear to the parties that the decision about the preliminary point did not have any impact on the merits of the appeal. If the appeal is dismissed, then approval will be for a development different from the original application. It emerged during the subsequent hearing that the difference is not just a matter of title, as it affects the boundaries of the reconfigured lots, and the planning status of the buildings on the land and changes to the planning provisions which apply to those buildings (e.g. detached house, or multi-unit dwelling). It was not submitted that the approval now sought could not be lawfully made – compare Bhat v. BCC [2003] QPELR 109, where the (invalid) approval was given to something that the applicant had not requested, and had been assessed against different codes. Attention was directed to a consequence of the amalgamated titles – that is, the opportunity it gave for greater density as boundary clearances for separate lots do not have the same impact, but that does not mean that there are no constraints against overcrowding on the one allotment. (See below.)
The Role of the Court
Some basic principles have to be kept in mind. First, the duty of this court is to give an impartial decision on the merits of the application, based on the evidence before it. It often happens that the information before the court is more extensive than the information available to Council. The court is in no sense a town planning authority. That is the role of Council. The court’s duty is to apply the planning schemes to the facts revealed by the evidence. The developer has the task of persuading the court that the application should be approved – IPA s.4.1.50(2). The hearing is a fresh one, so that the court has to reach its own view of the application.
Secondly, while the assessment is first to be made against the provisions of the 1987 Town Plan, the impact of IPA has to be taken into account. Prohibitions in the 1987 Town Plan lose their emphatic quality, and become only expressions of policy. See s.6.1.2(3) of IPA. IPA says that a prohibited use in a transitional planning scheme is to be taken as an expression of policy. See the decision of the Court of Appeal in Vynotas Pty Ltd v. Brisbane City Council (2000) 112 LGERA 206. However, that does not mean that provisions of a transitional scheme can be ignored. Indeed, later decisions of the Court of Appeal show that the consistent application of the planning scheme is important and that the court should be careful and restrained when considering any departure from the provisions of the scheme. See Weightman v. GCCC [2002] QCA 234.
Thirdly, while this application had to comply with the machinery provisions of IPA, it was not to be assessed against the codes, found in City Plan 2000. See s.6.1.30(2) of IPA. That is why the acknowledgment notice in this case, quite correctly, does not mention any codes. See p.28 of the Appeal Book.
The 1987 Town Plan
It is necessary to notice the provisions of the plan which touch on the issues here.
The Strategic Plan recognised the need for increased density of housing, and the preservation of character. See 3.2.2.1 (5th and 6th paras.) and 3.2.2.2(b). Closeness to centres and public transport are factors in favour of increased density – 3.2.2.1(c).
Chapter 7.1 deals with the aims and objectives of the residential zones. This land is in the Residential B zone. Of that it is said:
“This zone is intended for a wide range of accommodation types. These are detached houses, duplex houses or attached houses generally of two stories in height. In some areas walk up apartment buildings of three stories, stepped apartment buildings of four stories and high rise apartment buildings are possible. …” (Emphasis added)
The aim is to promote a high standard of visual amenity in residential areas. See para. 7.1.1.
Consideration will be given to both the standard of new development and its effects on existing residential development and residents in the vicinity. Consideration will be given to both the standard of development and to its effects or existing residential development and residents in the vicinity. Proposals that create an unreasonable loss of views, privacy, air circulation and sunlight for existing residents will be discouraged. (Emphasis added.) As para. 7.1.2 says, with reference to the Residential Development Area R4 (as in this case):
“Side and rear boundary clearances of residential buildings are designed to ensure adequate spacing of buildings to permit a degree of privacy between units in adjacent buildings. The use of private courtyards with attached houses, duplex houses and some low rise apartment buildings also assist in achieving privacy for residents.”
Amenity is also dependent on the quality of design of multiple residence buildings. … In Residential Development Area R4 good design will be ensured by compliance with the performance standards set out as Design Element Objectives of the relevant Local Planning Policy.
The boundary clearance provisions are also intended to ensure acceptable levels of sun penetration at ground level to reduce the likelihood of excessive shadows. …”
There is an emphasis on the provision of an adequate choice among a diversity of accommodation types:
“ … The three story form of apartment building currently caters for and will continue to meet a wide range of demands from the market depending upon location, standard of development and other factors.
Similarly, attached houses and duplex houses can be expected to form a significant proportion of new development in the Residential B zone. …”
Paragraph 7.3.1 deals with the intent of the Residential B zone. There is concern about the preservation of residential amenity for neighbours. Particular attention is paid to this land, which is in Residential Development Area R4:
“Land included in Area R4 is intended to be developed for a variety of low to medium density housing types. Any duplex house, attached house or apartment building may be allowed subject to consent of Council. Such development will require a site of not less than 800 square metres with a frontage of 20 metres or more.
It is envisaged that much of the land in Area R4 will be developed for a mix of detached houses and apartment buildings. It is therefore necessary to ensure that where a duplex house, attached house or apartment building is proposed, a consideration be given to the surrounding residential land uses to ensure that an appropriate standard of residential amenity is achieved.
Such development should be sensitive to overshadowing, overlooking, domination of adjoining sites, landscaping, the streetscape character and traffic operation on and off the site. In these regards, such developers will be required to fulfil a performance standard set out as Design Element Objectives of the relevant Local Planning Policy.
Achievement of these performance standards may preclude developing a site in Area R4 to the maximum allowable gross floor area, or height, or both.
To achieve a satisfactory design and maintain amenity for neighbours, development should provide a mix of unit types and sizes.
…
Where an application for consent to demolish or remove an existing building is refused, any development for the purpose of a duplex house, an attached house, apartment building or tenement building or other use will only be favourably considered where it incorporates the existing building and any extensions or alterations are designed so that they are consistent in style with the existing building.” (Emphasis added.)
Paragraph 7.6 sets out special requirements for detached houses, and attached houses, in these circumstances. Some of those development standards are directly in issue here:
“(d) At all times during which the use or purpose of a … attached house … continues, there shall be provided with respect to that use landscape and recreation area –
(i)of a total area of not less than 30% of the area of the site;
(ii)of which any separate part forms a continuous space having no plan dimension of less than 5 metres;
(iii)… which is not occupied by any building;
(iv)which is open to the sky except to the extent that eaves overhang one side of any separate part thereof by not more than 1.25 metres;
(v)…
(vi)including, in respect of each dwelling unit contained in any … attached house, at least one private court having no plan dimension of less than 5 metres.”
There are some particular development standards where a site is in the Residential Development Area R4:
“(a) the area of the site shall be not less than 800 square metres;
(b)the length of the frontage of the site shall be not less than 20 metres;
(c) site cover shall not exceed 50% of the area of the site;
(d)no building within 10 metres of a side or rear boundary abutting a site containing a single detached house shall contain more than two stories above ground level; otherwise no building shall contain more than three stories above ground level;
(e)the gross floor area of the planning unit shall not exceed 50% of the area of the site, except where the design and layout of the proposed development achieves all the design element objectives of the relevant local planning policy and the site of the proposed development;
(i)…
(ii)has a frontage to D or F type road; or
(iii)…
(iv)the gross floor area of the planning unit may exceed 50% but shall not exceed 60% of the area of the site.”
The possibility of relaxation of the above standards was in issue in this case. As para. 7.6.15 says:
“(a)the Council may relax any development standard as set out in paragraphs 7.6.2 to 7.6.13 of this subsection other than a development standard relating to maximum gross floor area of any development;
(b)for the purpose of this paragraph, any relaxation of any development standard in Residential Development Area R4 shall be given on the basis of the performance standard set out as Design Element Objectives of the relevant Local Planning Policy.”
Planning Policies
Considerable mention was made of any policy that might affect this application. Local authorities have for a long time adopted policies about particular matters. Writing in 1987, Professor Fogg described their status in his book Land Development Law in Queensland (p.169). Such policies were not binding on the local authority, or on the court. Each application was still to be considered on its merits.
Then, in 1990, the Local Government (Planning and Environment) Act gave more formal recognition to such policies. Section 1A.4 dealt with local planning policies. They had to be recorded in a register of local planning policies. They are to have application throughout the planning scheme area. Previous policies, before 1990, are taken to have been policies made by local governments.
Traditionally, such policies have not been regarded with the same strictness that a provision of the Town Plan might require. See, for example, the decision in Norris Clarke and O’Brien Pty Ltd v. BCC [1996] QPELR 262. While the policy is a town planning instrument, a more flexible approach may be taken to its application. It is the substance of a policy rather than its form that is important. The planning objectives upon which the policy is founded must always be recognised and where feasible applied.
In this case, there was a good deal of attention was paid to the policies that might apply to this application. The town planner, Mr Fletcher, was strongly inclined to apply, by analogy, Planning Policy 7.35, which deals with the development of apartment buildings in Residential Development Area R4. He found it curious that there was no such policy dealing with the development of attached houses in Area R4 at least in 2000.
Literally, there is no doubt that the policy does refer only to apartment buildings, which are separately defined. The policy does not apply in this case, as the developer and Council submitted.
However, there are some short policies that do touch on present issues. Planning Policy 7.06 deals with the height of attached houses. It says that such houses greater than 8.5 metres in height require consent. Council may relax that requirement and deem houses higher than 8.5 metres to be permitted. Guidelines are established under which relaxation will be more favourably considered:
“(i)the height and design of the house is likely to accord with the legitimate expectations of adjoining owners;
(ii) only a minor part of the building exceeds 8.5 metres in height;
(iii)the site of the proposed detached house adjoins land used for other than residential purposes; and
(iv) adjoining residential buildings exceed two stories in height.”
Relaxation is less likely to be favourably considered where:
“(i)the proposed relaxation will result in a loss of existing or future amenity in terms of privacy, overshadowing and outlook and;
(ii)the proposed relaxation will significantly effect the existing skyline of the area, particularly where the site is on a prominent ridgeline.”
That 1990 policy had been preceded by a 1987 policy dealing with the height of residential buildings, such as detached houses. In that case, in considering whether the relevant development standard will be relaxed to allow for a higher building, consideration will be given to matters such as:
“(i) the height of other residential buildings in the locality;
(ii)where the site adjoins land which contains a non-residential building;
(iii) …
(iv)the topography of the land, particularly regarding overshadowing or overlooking of other residential buildings; and
(v) the area of the site.”
In 1987, Planning Policy 7.08 was adopted, dealing with the provision of private courts to attached houses. It referred to s.7.6.2(e)(vii) –
“The requirement that no private court have a planned dimension of less than 5 metres.”
The policy deals with that requirement this way:
“In certain instances a court having a lesser dimension may be considered provided that the court is not less than 25 square metres in area and any dimension is not less than 4 metres. Lesser dimensions will be favourably considered only where the dimension or shape of the site makes the provision of a larger dimension impractical. …”
The Site
The provisions gave rise to some controversies in this case. First, what is the “site” that is relevant? Is it the whole of the land, including the existing detached houses, or is it just the area of the land on which the attached houses are to be built?
The expression “site” is defined at p. 30-179 of the Town Plan:
“With respect to development, means the land within the City on which development is, or is proposed to be, carried out where that land comprises the whole or part of
(a) one allotment or
(b) more than one allotment …”
See also the definition of “development” – it includes both building on land, and the use of that land. The definition of “planning unit “is also helpful –
“(a) With respect to development being the erection of a building on or other structure on land, the land which constitutes the site for the purpose of that development together with all buildings or other structures on that land upon the completion of that development, whether or not all buildings and other structures the non that land are the subject of that development.
(b) …”
The two detached houses covered five allotments. The application described each of those five lots as comprising the “land subject to the application”. The first proposal, which involved the reconfiguration of the five lots into two lots for the detached houses, and five lots for the attached houses, is set out in the application. If the application in its present form is approved, then the land will be amalgamated into one lot, subject to a community title. That arrangement will give effect to an aim of the Town Plan, which is to preserve character housing.
Mr Fletcher was inclined to think that the site in the present controversy was limited to the land covered by the attached houses – 715 square metres in area. As a matter of definition, there is really no doubt the development site includes the whole of the land, an area of 1439 square metres.
(If the site is the whole of the land, then it was conceded that several of the development standards would be satisfied – the area of the site is more than 800 square metres, the length of the frontage to Chatsworth Road is more than 20 metres, and the site cover is less than 50%.)
Landscape and Recreation Space
A significant controversy concerned the extent of landscaping and recreation space that is provided for residents of the attached houses.
The evidence reveals that a proposal like the present is now quite common in Brisbane – that is, a combination of detached housing and attached housing on the one title. The detached housing is there because of the need to preserve the character of the area. The attached housing is provided because there is a demand for higher density living. Where there is a community title, then there will usually be a by-law to give the owners of a detached house an exclusive right to use its immediate surrounds. What impact should this form of development have on the calculation of landscape and recreation areas? The town planners recognised the difficulty of applying para. 7.6.2(d) (see above) to these new forms of development.
In the present case, there can be seen that the approved plans provide for an 1800mm timber fence between the attached houses and the two detached houses. See drawing DAO1 at p.37 of Mr Vann’s report. It is also very likely that the detached houses will be surrounded by areas of exclusive use – see Exhibit 5. It is hard to imagine them being attractive to prospective purchasers without such an exclusive use by-law.
Mr Vann would include all of the common area, and all of the available spaces, even if less than the minimum five metres. That would produce an area of 475 square metres, which amounts to 33% of the total site area. On that approach, the minimum recreation and landscape requirement is satisfied.
Mr Vann had in mind Policy 7.08, which allows courtyards of four metres minimum dimension to be included, provided they amount to 25 square metres in area. These four courtyards would qualify, according to that more relaxed standard. However, Mr Vann did not make it clear why he would also include the narrow strips around the attached houses and the detached houses, much of which are less than 5 metres in width. If the usual standard is applied, then it is hard to escape the conclusion reached by Mr Fletcher:
“Apart from the landscape strips around the margins of the site there is effectively no common landscape and recreation area … On the basis that no part of the landscape and recreation area has the dimension of five metres or more it would be treated as having no landscape and recreation space for the purpose of assessing compliance with the minimum. Whilst that seems somewhat of an extreme view, it does highlight a situation in which landscape and recreation space has to be regarded as grossly deficient.
Whilst the proposal does not comply with the acceptable solution, the question arises as to whether it could be seen to comply with the Design Element Objective to ensure maximum utilisation of landscape and recreation areas (a reference to policy 7.35). In my opinion the areas provided are so deficient that one could hardly expect them to be utilised at all and so I conclude that it does not comply with the performance standard.
That is hardly surprising in a situation where on a small site the application seeks to establish a gross floor area over 50%, greater than permissible. The additional area of the site occupied by the additional units/floor space and its associated requirements for parking, visitor parking and vehicle manoeuvring result directly in the loss of what would otherwise be available for landscape recreation area. Looked at simply, it represents the inevitable outcome of overdevelopment.
…
There are areas which would have a dimension of at least 5 metres and I assess these areas to total about 248 square metres, which amounts to just over 17% of the expanded site area, and this is located mostly in the front yards of the detached houses.
…
Accordingly, I conclude that there is not compliance with landscape and recreation area requirements in the application over the expanded site, whether in terms of the development standards or on a performance basis and the non-compliance extends across all aspects of the requirements.”
Is it right to look at the site of the attached houses only? The attached houses will be separated from the detached houses by an 1800mm timber fence. Exclusive use rights will probably prevent any physical use of the common area beyond that fence. While such exclusive use rights do not amount to a subdivision, their practical effect will be the same for the occupants of the attached houses (see the definition of “reconfiguring a lot” in s.1.2.6 of IPA).
It was suggested that this land would be the subject of different uses, being detached housing and attached housing, and that the provision of open space should be considered only with respect to the land occupied by the attached houses – an area of 715 square metres rather than 1,489 square metres. If that were true, then Mr Fletcher’s observations would become even more pertinent. However, the reference to an area which is “not less than 30% of the area of the site” would seem to preclude such an approach. Rather, it is better to regard the situation as an anomaly, which may receive attention in later plans.
In any event, Mr Fletcher’s opinion should be accepted – there is nothing like compliance with the requirements of the Town Plan, if the 5 metre requirement is observed.
The Ten Metre Provision
Paragraph 6.6.6(d) of the Town Plan says that only two story buildings should be within ten metres of a side rear boundary, where that site contains a single detached house. As this is a three story building, there is, in effect, a prohibition on building within ten metres of a side or rear boundary, where there is a detached house on the adjoining land.
The prohibition applies in this case to each side boundary. It can be illustrated by looking at the Plan, DAO1. There is no difficulty with the front and rear boundaries, which exceed ten metres. However, on each side of this land, near to Chatsworth Road, there are single detached houses. Number 47 is next to Henzell Avenue. The wall of the proposed Unit 4 is 2.5 metres from the boundary. The same position applies on the other side, where Number 41 occupies the land beside detached house B on the subject land. Once again, there is a 2.5 metre clearance from Unit 1 to that boundary.
It is necessary to take into account the slope of the land, to appreciate the relative impacts on Number 47 and Number 41. As Plan DAO1 shows, Unit 4 is on the highest part of the land while Unit 1 is on the lowest. The land is falling diagonally across the subject site so that, of all the affected neighbours, Number 41 is in the lowest position. The floor level of Number 41 is about one floor below the ground floor of Unit 1. Elevation DAO6 shows the view of Unit 1 from the point of view of an observer standing somewhat behind Number 41. The distance between the back corner of Number 41 and the front corner of Unit 1 is about six metres. The eaves of Unit 1, at that point, are 9.5 metres above the natural ground. The eaves at the edge of Unit 1, at 47.07, are about 4.2 metres higher than the peak of the roof of Number 41.
Mr Vann, who was generally in favour of the development, recognised that this was an aspect of the proposal. As he observed, the intent of the provision was to deal with the impacts of the proposed development on existing houses on the properties to the side in terms of privacy, overshadowing and overlooking.
He was in favour of a relaxation of this requirement, for these reasons:
(a) The ten metre clearance is only required in the case of detached houses on neighbouring land. If the properties to the side contained units, there would not be a problem.
(b) In any case, a two story building up to 8.5 metres high could be contained within ten metres, according to the same provision. This building, at the lower corner, is only about a metre higher than that.
(c) The house on the higher corner, adjoining Henzell Terrace, is significantly higher than the subject land.
(d) The sloping nature of the site, together with the height and location of the adjoining houses (that is, they are towards Chatsworth Road, in line with detached houses A and B) means the proposed building does not cause significant issues about privacy, overlooking or overshadowing. The end wall of Unit 1 is designed to minimise the effect of overlooking.
(e) No submissions were made by the owners or occupiers of Number 41 and Number 47 objecting to this proposal.
(f) Insofar as views enjoyed by neighbours at the rear are concerned, the effect is the equivalent of an 8.5 metre detached building, already allowed by other provisions.
(g) The height of the attached houses is consistent with the stepped nature of development along the slope down from Henzell Terrace.
A town planner, Mr Kay, called on behalf of the Council, put the matter this way:
“That part of the attached house within ten metres of the side boundary is so located that it will not cause loss of light or air to the house on the adjoining properties as it is located adjacent to (their) rear yards. Building width facing those boundaries is only ten metres. In my opinion, this is an instance where this provision could have been relaxed.”
(The south-west elevation shows that the end of the building is 10.5m, and 13m at the first floor as there is a wall to the veranda)
Mr Fletcher’s views are complicated by the fact that he took into account Planning Policy 7.35, which does refer only to apartment buildings. Otherwise, Mr Fletcher put the matter this way:
“ … In my opinion, there is nothing in the circumstances proposed which can be seen to reduce the impact below that normally expected. Indeed, in my opinion the impact is greater than would be expected on average. The land falls in such a way that the floor level of the ground floor of attached house (Number 1) is significantly above the floor level of the house on the site immediately adjacent to the west (Number 41). … In other words the ground floor level is already one floor above that of the adjoining house six metres away. In my view there is nothing about that spatial relationship which justifies the relaxation to allow three stories which in the circumstances would have an impact equivalent to that of four stories. On the eastern side the attached house (Number 4) would be about 4.5 metres from the dwelling on the adjoining land (Number 47) at its closest point and the floor level of Number 4 would be about 41.8 metres AHD and the floor level of the high set dwelling is about 42.6 metres AHD – there is nothing in that relationship to support a relaxation. The relationship with the houses being retained is similar or worse and those houses are closer to the attached house, the easternmost house (House A) being only two metres from the wall of the attached house … I cannot conclude that on a performance basis the solution proposed is equivalent in impact to that of a building two stories in height at all points ten metres of a boundary of a site containing a detached house. …”
Plainly, the development standard in para. 7.6.6(d) is substantially infringed. Mr Fletcher’s view more realistically reflects the impact of the proposed building.
The Amalgamated Site
The creation of an allotment, subject to a community title plan, has meant that the attached houses are built closer to the existing houses. That is to say, separate lots would have meant that the usual provisions about front and rear boundary clearances would have had to be observed. In this case, a minimum rear boundary clearance of 6 metres at least would have been required, if not 10 metres.
It can be seen from the Plan DAO1 that about 5 metres separates the rear wall of the house (not including the steps) from the edge of the attached houses. It can also be seen that attached house A is closer, being about 2 metres away at its closest point.
Mr Fletcher’s views about those distances should be accepted:
5.19“As to the proposed subdivision it would be easy to regard it simply as means for facilitating the proposal and to take the view that it does not have a separate impact in respect of the intent of the Plan … that approach is perhaps a little too simplistic."
In this case the boundary between the attached house and the house shown as House A … is located so close to the (attached) house that is to suggest that it very nearly coincides with the external wall of the house. The location of the boundary then allows the attached house to be located such that even if it complies with the required boundary clearances, the separation between the attached house and the detached house will be inadequate by any reasonable standard. Indeed, the external wall of the third storey would be only two metres from the external wall of the house and the edge of the roof of Unit 3 would be only one metre away; and because of the difference in levels between the floor level of the detached house and the ground floor of the attached house it is equivalent to a four storey building. In the circumstances the location of the subdivision boundary contributes to this undesirable situation. To that extent then I consider that the subdivision is inconsistent with the intent of the Plan in respect of the spacing of buildings which is an aspect of amenity referred to in Objective 7.1.1 (see above) and the “domination of adjoining sites” in the intent of the R4RDA (see above) … The (proposal) is not considered to conflict with the intent in respect of air circulation but in respect of sun penetration it is considered to conflict with the intent as a result of the impact of being three storeys in height close to the western boundary. The subdivision is considered to conflict with the intent of the Plan in respect to the impacts on amenity associated with an inadequate spacing of buildings and a domination of adjoining sites.”
Gross Floor Area
The gross floor area of the existing and proposed buildings will be 54% of the area of the site.
Mr Vann thought that the limit was 60% rather than 50%, because Chatsworth Road is a Type D road. He thought, and it was submitted, that the status of the Type D road was sufficient to elevate the maximum from 50% to 60% - see para. 7.6.6(e)(ii). The actual provision is this:
“The gross floor area of the planning unit shall not exceed 50% of the area of the site, except that where the design and layout of the proposed development achieves all the design element objectives of the relevant local planning policy and the site of the proposed development … has a frontage to a Type D road. … the gross floor area of the planning unit may exceed 50%, but should not exceed 60% of the area of the site.” (emphasis added.)
The meaning of the emphasised exception, and the meaning of the relaxation provisions, are closely linked. The relaxation provisions are these below:
“Para. 7.6.15
(a)The Council may relax any development standard as set out in paras. 7.6.2 to 7.6.13 of this subsection other than a development standard relating to maximum gross floor area of any development;
(b)For the purposes of this paragraph, any relaxation of any development standard in Residential Development Area R4 shall be given on the basis of the performance standards set out as Design Element Objectives of the relevant Local Planning Policy.” (emphasis added.)
Paragraph 7.1.2, dealing with the aims and objectives of the residential zones, seems to contain the first reference to Design Element Objectives. That paragraph deals with the need to protect general non-visual amenity, particularly in residential areas. It should be noticed:
“Side and rear boundary clearances for residential buildings are designed to ensure adequate spacing of buildings to permit a degree of privacy between units in adjacent buildings. The use of private courtyards with attached houses … also assists in achieving privacy for residents.
Amenity is also dependent on the quality of design of multiple residence buildings. Good quality design will ensure that building bulk and size, orientation of walls, balconies and windows, roof configuration, onsite services and car parking result in a positive contribution to the character of the neighbourhood and the streetscape.
In Residential Development Area R4 good design will be ensured by compliance of the performance standards set out as Design Element Objectives of the relevant Local Planning Policy.
The boundary clearance provisions are also intended to ensure acceptable levels for sun penetration at ground level to reduce the likelihood of excessive shadows. …” (emphasis added.)
There is then a mention of a planning policy in connection with residential development in the R4A area. See p.7-21B. It is then mentioned in connection with Residential Development Area R4:
“Such development should be sensitive to overshadowing, overlooking, domination of adjoining sites, landscaping, the streetscape character and traffic operation on and off the site. In these regards, such development will be required to fulfil the performance standards set as Design Element Objectives of the relevant Local Planning Policy.
Achievement of these performance standards may preclude developing a site in Residential Development Area R4 to the maximum allowable gross floor area, or height, or both.” (emphasis added.)
There is a similar reference in para. 7.6.5A, dealing with Area R4A.
According to Exhibit 15, such a policy was adopted on 18 October 1994. It is titled “Design of Residential Development On Land in Residential B Zone and RDAR4”. It refers to Design Element Objectives and, among other things, deals with site planning, landscape and recreation areas. Then, on 4 February 1999 it was amended so that its provisions only applied to the development of apartment buildings. “Apartment buildings” and “attached houses” are separately defined in the Town Plan. That change is not explained, but it is clear enough.
It was not suggested that planning policies 7.06, 7.07 or 7.08 had any impact in this context. It was submitted on behalf of the developer and Council that the absence of a planning policy such as 7.35 made no difference. That is, it was submitted that, in para. 7.6.6, reference would simply be made to the frontage to Chatsworth Road, overlooking the fact that there was no relevant local planning policy. Likewise, in considering the relaxation of a development standard, the discretion would simply be at large, so that para. 7.6.15(a) would be read alone, without any reference to (b).
It is hard to accept that submission. The provisions of the Town Plan, mentioned above, assume that there will be, or may be, a relevant Town Planning policy. The potential expansion of the gross floor area, from 50% to 60%, depends on the first condition, that the design and layout of the proposed development achieves all the Design Element Objectives of the policy. Such a provision can be seen as an encouragement to achieve the objectives, in which event the 10% “bonus” is allowable in certain circumstances. It appears to be a condition precedent to the consideration of the other conditions, such as the status of the road, or the nearness of a railway station.
In considering a relaxation, it is apparent that it is a general discretion in most cases. See para. 7.6.15(a). However, there is a special requirement in the case of a potential relaxation of any development standard in the R4 area. That shall be given on the basis of the performance standards set out as Design Element Objectives, of the relevant Local Planning Policy. That is, the discretion is to be exercised only on the basis of the standards required by the Design Element Objectives. If they do not exist, then no discretion arises. The relaxation provision does not say that a relevant local planning policy is only one matter that may be taken into account. It is an essential matter.
The approach to construing these town planning provisions should not be a fussy or technical one. The purpose is to discover the true meaning of the planning documents. Inconsistencies of language, and awkward expressions, should not be used to detract from the search for the evident purpose of the provisions. In this case, the meaning of the document is clear enough to any reader. There is a strong emphasis in achieving such design element objectives as may be found in a local planning policy. If they are achieved, then the gross floor area may be increased, and, in the case of the R4 area, relaxations of development standards may be approved. If they do not exist, then a relaxation cannot be considered.
The Views
Understandably, all of the submitters (with the exception of Mr and Mrs Sophios) were very concerned about their loss of views.
Detached houses A and B, and the four proposed attached houses, all look directly towards the Brisbane CBD. It is about five kilometres away, to the northwest. As the elevation shows, the living areas on the top floors of the attached houses look out over the lower roofs of the existing detached houses, to the front and to each side. The views are panoramic, and include an arc to the west which includes Mt Coot-tha.
At present, Dr and Mrs Nutting, Mr and Mrs Herbert, and Mr and Mrs Rossetti all enjoy extensive views over the city and Mt Coot-tha. The relative positions of their houses, to the rear of the subject land, can be understood by looking at Figure 11(a) to Mr Vann’s report, p.55. The three detached houses facing Chatsworth Road look directly towards the CBD. The living areas of Units 1, 2, 3 and 4 will look directly towards the CBD. On that plan, the Nutting house is on the corner of Henzell Terrace. It can be seen that Unit 4 is in front of the left hand half of the Nutting house as one looks towards the city.
Next to the Nutting’s is the Herbert’s house. It is positioned pretty much directly behind the four attached houses. Then, further to the southwest, is the Rossetti’s house. There is only a metre or so of overlap between the right hand edge of their house and the left hand edge of Unit 1. That plan also illustrates, as do other plans and the photographs, the slope of the land down the hill. That is to say, the Nutting’s house occupies the highest land on the corner next to Henzell Terrace. The land then falls diagonally away so that the Herbert’s and Rossetti’s are lower.
Exhibit 12 contains two sections which graphically illustrate the relative impact of the new building. The relatively tall Nutting house appears in Section AA. A person of average height standing at ground level (a story below the first floor) will look over the roof of the new building and see the CBD, at a level slightly above ground level. That section also illustrates the relative height of the proposed building, compared to the house on the corner shown by the dotted line, and the detached house which is to be retained here, as House A. Section AA shows Unit 4, which is the highest of the four attached houses.
Section BB shows the view from the Herbert’s front balcony. That view is almost three metres lower than the view from the Nutting’s front garden. Looking over Attached House 1, the lowest of the new houses, that view would intersect the CBD at about the 25th story of the CBD buildings. At present, all of the CBD can be seen – see photograph Exhibit 13.
The Rossetti view is similar to the Herbert’s, though further towards the west.
The relative positions of the submitters’ houses can be seen in the photographs at pp. 64-65 of Mr Vann’s report. The Nutting house is at 42 Beanga Street, on the corner of Henzell Avenue. It appears as a two story house from the street, and as a three story house when looked at, from the position of the proposed development – see photograph 14. Photograph 6 then shows the Herbert and Rossetti houses further down the slope to the west – the Rossetti’s is painted white.
The photographs also helpfully show the impact that existing vegetation has on the views from those three houses. Exhibit 13 is a day time view from the Herbert’s balcony. The frangipani trees in the foreground of the photograph are at the bottom of their garden, near the fence of the proposed development. Exhibit 10 shows the view from their sitting room at night time.
One photograph of Exhibit 10 shows a reasonably accurate portrayal of the roof of proposed Unit 2, obstructing the view to about the 25th story of the city buildings.
The views from the Nutting’s residence are the least affected. That is, there will still be significant City views uninterrupted by Unit 4. There is also quite dense vegetation at the bottom of their garden. At its present level, the roofs of houses 3 and 4 will protrude somewhat above the vegetation. It is true that their city views will be compromised somewhat. Extensive views will still remain.
The views from the Herbert house will be the most affected. Exhibit 9 shows an accurate enough overlay of the roof line on an enlarged version of the photograph which is Exhibit 13. Note that the slanted lines should stop at the top of the wall of frangipani, as the lower parts of the building will be hidden by that foliage. The views from the balcony of that house will no longer be a complete view of the CBD. However, the higher buildings at the centre will protrude above the roof, as will buildings further towards the west. The views towards Mt Coot-that will remain.
As one looks straight out from the Rossetti’s first floor, the view is unaffected. However, their view to the right is affected and some of the CBD views will be lost.
The question is, how does the Town Plan regard those losses of views? It is necessary to look at the Plan’s provisions, as the general law gives no rights to the protection of views, there is a good explanation of that basic proportion, in CromarPty Ltd Cronin v BCC [1966] QPELR 84.
It is impossible to have a town planning scheme which encourages both dense development and the complete preservation of existing views. As para. 7.1.1 of the Town Plan says:
“… Consideration will be given to both the standard of development and to its effects on existing residential development and residents in the vicinity. Proposals that create unreasonable loss of views, privacy, air circulation, and sunlight for existing residents will be discouraged …” (emphasis added).
That appears to be the only provision dealing with views. Messrs Vann and Kay thought the loss of views was not unreasonable. Mr Fletcher took a different view, after referring to the objective in para. 7.1.1:
“Without seeking undue precision I consider this to mean at least the protection of views can be expected if the views are somewhat special, the extent of the impact substantial and the expectations well informed about the development that might reasonably occur.
Applying that to the instant case, in my opinion the view is outstanding and the impact on the most valued aspect of the views is more than substantial. A well-informed owner in my view would have expected under the old planning regime that a three story apartment building could have been constructed on the land at a level close to that of Chatsworth Road and that it would not have impacted upon views. The same well informed owner would reasonably in my view have expected that under the more recent planning regime a two story building of relatively modest proportions could have been built at the rear but again this would not preclude views of the city. An informed resident would not expect that the Council would approve a three story building complying with virtually none of the town plan development standards, with no habitable space at the ground story and all of its habitable space disposed in two stories elevated in such a way as to obtain city views from both levels at the expense of precluding the views of the neighbours. I consider that to represent an unreasonable loss of views in circumstances where informed neighbours would have had realistic expectations being able to retain their views.”
So, if Mr Fletcher is right, it is not just the actual impact on the view that is considered, but rather the impact in proportion to the reasonable expectations of the neighbouring residents.
Much attention was paid, by those in favour of the development, to the impact that the building of a detached house on the subject land might have in any case. Exhibit 11 shows an existing approval to erect a new detached house immediately behind detached house A. As Sheet 930-51 shows, it is built as close to the rear boundary as possible. It uses the same driveway as that proposed for the attached houses. It is also apparent, that if another detached house were to be built behind existing house B, then the existing approval would have to be altered, so that the driveway could service both houses.
It was pointed out that the roof of the detached house would have a greater impact on views than the attached houses which are further down the slope. See Exhibit 12, showing an impression of the barrier of an 8.5 metre roof, six metres away from the rear boundary.
Those looking from the Nutting and Herbert houses, in particular, would see the southeast elevation of the approved house. Its ridge line is about 12 metres long. That may be compared to the ridge lines of the attached houses, which amount to some 27 metres in length.
The Character Buildings
It is necessary to note two ways in which the proposal does comply with the requirements of the Plan. That is, the two old Queensland houses, which are character buildings, are appropriately preserved. The view of the proposed development from Chatsworth Road is not unduly obtrusive. That is because the land is rising and a pedestrian on either side of Chatsworth Road would not see much of the new building. Note the surveyors’ illustrations at annexures 6, 7, 8 and 9 of Exhibit 3.
It is now necessary to turn to the provisions of City Plan.
City Plan
The strategic aim is now to promote increases in density near high quality public transport and close to the city centre, while maintaining character. See para. 4.2.2. At the same time, 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 include (see para 4.2.2.1):
· prevent intrusion of development that could seriously detract from residential amenity;
· mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy;
· …
· …
· 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 (see para. 4.2.2.1 of Chapter 2). (emphasis added.)
Para 5.1 speaks of the Desired Environmental Outcomes – in all residential areas. They include 5.1.1(4) –
“Dwellings have reasonable access to daylight, sunlight and breezes and have privacy.”
This land is in the Low Medium Density Residential Area. As para. 5.4.1 of Chapter 3 says:
“Intent
The low-medium density residential area will contain a mix of houses up to two stories and two and three story multi-unit dwellings.
…
During the life of this plan, a relatively small proportion of land in this area will be developed for multi-unit residential. New development must therefore be designed to co-exist comfortably with neighbouring houses. This will be reflected in the intensity and scale of development and the strict adherence to a maximum gross floor area of 50%, or 60% if in close proximity of public transport or on arterial roads.” (emphasis added.)
The intent of this area is set out in s 5.4.1, Chapter 3, p 32:
(a) it expressly acknowledges that the area will contain a mix of
houses and two and three storey multi-unit dwellings;
(b) it confirms that such areas are located close to public
transport centres;
(c) it requires that development designed to co-exist
comfortably with neighbouring houses that is to be “…
reflected in the intensity and scale of development and a
strict adherence to a maximum gross floor area of 50% or
60% if in close proximity of public transport …”
Para 5.4.2 deals with the Desired Environmental Outcomes:
“1.Low-medium density living environments comprise houses, among multi-unit development at a house-compatible scale, predominantly of no more than two stories. Higher densities and three stories occur near multi-purpose centres near public transport and along arterial roads.” (emphasis added.)
It can be noted that there is a multi-purpose centre at the intersection of Chatsworth Road and Logan Road. See the Local Plan at Chapter 4, p.709, and Map 1/3. It is about 250 metres away. There is also good bus transport on Logan Road.
The residential areas will 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, minimum site area and intensity for multi-unit dwellings and controls on demolition or removal of pre-1946 housing. See Chapter 3, p.27.
This land is within the Holland Park-Tarragindi Districts Local Plan. However, it is notable that while the local plan specifically protects certain views, it says nothing about views from this land.
The Residential Design – Low Density Character and Low-Medium Density Code will apply. See Chapter 5, p.165. Its purpose is to have areas that contain a mix of houses and unit development. The purpose of the Code is to effectively manage impacts of 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 …
· encouraging multi-unit development that provides a pleasant living environment for its occupants;
· …”
This proposal amounts to a multi-unit dwelling in the low-medium density residential area. See Chapter 5, p.167. The performance criterion is that “development size and bulk must be consistent with the low-medium density of the locality.” Three acceptable solutions are then provided. A1.3 is satisfied here – the site area is above 600 metres as a minimum frontage of more than 17 metres. It is Acceptable Solutions A1.1 dealing with the gross floor area, and A1.2, dealing with side boundaries, that are relevant here.
Acceptable Solution A.1.1 says that the gross floor area is to be no more than 50% of the site area. An increase to 60% may be allowed, but its conditions are not satisfied in this case. Paragraph 8.1.2 says that, where a three story building has building heights of no more than 9.5 metres above ground level to the underside of the eaves (that is this case) then a building over two stories is more than 10 metres from any lot containing a house, where no approval for multi-unit dwellings exist. Therefore, it can be seen that the acceptable solutions for gross floor area and setbacks from the side boundary have not been achieved. The requirements are the same as in the Town Plan.
City Plan has a marked change with respect to the provision of sufficient communal and private open space for residents needs. The minimum is still 30% of the site, but the minimum dimension is reduced to two metres. Ground floor private open space (the courtyards) may have minimum dimensions of three metres. Balconies can provide open space, as long as there is a minimum dimension of three metres. That is a major reduction, compared to the 1987 requirements. Even if the area of the attached houses alone were considered, the open space would amount to 30%, judged by those criteria.
Because this application was lodged just before the introduction of City Plan and long after its advertisement, and because a considerable time has now passed, considerable weight should be given to the City Plan provisions. The only real difference between them is to the provision of open space – it would now be regarded as satisfactory. The issues with regard to gross floor area, set backs from the side boundary, overcrowding and the impact on views will remain.
Indeed, it can be seen para 4.2.2 of Chapter 2 closely links the protection of views to cases where development exceeds the relevant Code’s acceptable solutions for building height. That is close to saying that views will be protected where the planning provisions about building heights give rise to a reasonable expectation that new development will not spoil them. It is also an example of an acceptable solution being given a particular status, so that it is not just one way in which a performance objective can be achieved. Generally, it should be appreciated that the acceptable solutions are not the only ways in which satisfactory performance criteria can be achieved.
The Council approval
The court reaches its own view of the merits, independently of the Council’s decision. Sometimes it is said that respect should be shown to the views of Council.
In this case, it is interesting to note that only one relaxation is mentioned in the letter of approval. See p.75 of the Appeal Book. It says that a relaxation has been approved with respect to the clothes drying area. It seems that there was a change from a communal area of 40 metres square to the individual drying areas in the courtyards. No other relaxation is mentioned.
During this hearing, the question of clothes drying was touched on, but then not mentioned again because it was regarded on all sides as being too trivial to bother about. On the other hand, the Council has made no mention of the undoubtedly significant matters of the gross floor area and the building setback to the boundaries.
The decision by the Council’s delegate, of 5 April 2001 (p. 73 of the Appeal Book) is to the same effect. It reports that there is satisfaction that the application accords with “relevant standards” but it does not say what those standards are.
In the delegate’s report, mention is also made of the relaxation of the requirement for landscape and recreational space. It was thought that about 15% of the site was provided as private open space, bearing in mind the requirement that no dimension of less than five metres was acceptable. If that requirement were put to one side, then the total areas would be 33%.
The report also indicates that the requirement for site boundary setbacks was 2.5 metres, so that no relaxations were sought. However, that was an error – 10 metres was required and a relaxation was sought.
Conclusions
If the complaints about views were considered in isolation from the development standards, then they would certainly be dismissed. It is quite possible to be sympathetic to the neighbours to the rear who presently enjoy splendid views, and would have them obstructed by this development. However, the degree of obstruction is not such that, standing alone, their complaints could be upheld. Provided that the development in front of them were to follow the development standards, then they could not complain.
However, their complaints can be taken into account where the development standards have not been followed. In this case, the gross floor area is 4% above the 50% which is to be strictly regarded as the limit. The failure to pay attention to the side boundary setbacks means that a three storey building of much greater bulk than that allowed by each planning scheme has now been approved. The closeness of the attached houses cannot be overlooked.
When those factors are combined, it is difficult to see that any relaxation should be considered. Each factor in isolation might have attracted a relaxation.
Much attention was paid to the possibility of a complying, detached house up to 8.5 metres high being erected even closer to the neighbours’ boundary fences. That is true. However, it is unlikely that the single detached house, which is presently approved, or some combination of two attached houses, would have the same impact on views. There would not be the same long roofline, of about 27 metres, to obstruct their view.
In any event, arguments about the effect of complying development are not greatly to the point. The fact of the matter is that both town plans have provided for different considerations to apply to three storey multi-unit dwellings. Attention has to be paid to the way in which their development has been described, and restricted.
In favour of the application, is the retention of the two character houses and the relatively low visual impact that the building would have to pedestrians on Chatsworth Road. It also does provide additional higher density housing, which is obviously in demand, and the need for which is recognised by both town plans. Controls in respect to frontage, minimum area and site cover have all been achieved.
Overall, it can be seen that the proposal simply tries to put too large a building into a relatively small space. It is too wide, the gross floor area is excessive, and it is too close to the detached houses. The end result is that the neighbour’s views are obstructed in ways in which they would not have expected. There is overdevelopment and domination of the neighbouring buildings.
It will be apparent from these reasons that the opinions of Mr Fletcher have been preferred to those of Messrs Vann and Kay. That is because his report showed a more thoughtful approach to the impacts of this development, and what the planning schemes said about it. The relaxations sought should not be given (that is so, even if the schemes give a discretion to do so).
Appeals such as this depend on their individual merits. Because counsel referred to it, mention may be made of a decision of this Court in Boge v Brisbane City Council [1998] QPELR 244. As in this case, there was opposition to a development behind an existing residence. The proposal included the retention of the old building, which was to be relocated close closer to the roadway. It was to be refurbished to provide a duplex house. A new structure of three dwelling units was to be built towards the rear of the land, with its own driveway. The disputed issues focused on the impact that the proposal would have on the character and amenity of the area which its residents were entitled to expect would be retained, and whether special attention had been given to relevant development standards in the Town Plan.
It is notable that the new building was to be two storeys in height, and that the relaxations sought were indeed minor. The relaxations were allowed, and the development was approved. That situation can be usefully compared to this one, where the building is three storeys in height, and the relaxations sought are not in such a minor category.
The appeal is allowed. The decision notice of 12 April 2001 is set aside.
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