Ivl Group Pty Ltd v Redland City Council - [2017] QPEC 73

PLANNING AND ENVIRONMENT COURT

CITATION:

IVL Group Pty Ltd & Anor v Redland City Council [2017] QPEC 73

PARTIES:

IVL GROUP PTY LTD

AND

LANREX PTY LTD

(appellants)

v

REDLAND CITY COUNCIL

(respondent)

FILE NO/S:

4807 of 2016

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22, 23, 24, 25 August 2017 with further written submission received to 5 September 2017.

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – applicant appeal against refusal of development application for a material change of use to facilitate the conversion of a public park into the extension of a carpark for an adjacent shopping centre – where park had been dedicated as a condition of the shopping centre approval and separated the shopping centre from residential properties – where park had deficient CPTED design and a history of anti-social behaviour which led the Council to encourage the applicant to enter into a conditional contract to purchase the park and to make the development application – where, in the context of local opposition and a change in council, the council subsequently refused the development application – where significant conflict admitted – whether sufficient grounds – reasonable expectations – extent of CPTED deficiencies and associated behavioural issues – where adequate open space otherwise – where park has values of environmental significance – where notwithstanding its CPTED deficiencies it serve functions of relevance – where proposed carpark would have its own CPTED issues – where no need otherwise for proposed carpark – where grounds not sufficient to warrant a decision to approve.

COUNSEL:

C L Hughes QC with M J Batty for the appellants

B D Job for the respondent

SOLICITORS:

Keir Steele Lawyers for the appellants

Corrs Chambers Westgarth for the respondent

Table of contents
Introduction  4
The proposal  6
The assessment framework  7
The issues  7
The conflict  8
Grounds  11
Submissions, the evidence of residents and reasonable expectations  13
CPTED deficiencies and anti-social and criminal activity  15
Need for open space  28
Utility/amenity of Lot 12 as open space  28
Ecology  30
Buffer  37
Visual character  37
Visual relief to built form  39
Recreation  39

Social impact  40
Noise and light  42
Traffic  44
Historical conditions  45
Conflict and grounds  46
Conclusion  50
Introduction

This appeal is against the decision of the respondent (“Council”) to refuse a development application for a development permit for a material change of use to facilitate the conversion of a public park into the extension of a carpark for an adjacent shopping centre. The proposal is of an uncommon kind and has an unusual history.

The subject land is Lot 12 on SP 147233 (“Lot 12”). It has an area of 9,195m². It is an elongated parcel of land adjacent to the Town Centre Victoria Point Shopping Centre (“the shopping centre”) which is on Lot 11 SP 174597 (“Lot 11”). The shopping centre features a Woolworths supermarket, Bunnings store, retail showrooms, a medical centre, a McDonalds, a tavern, a petrol station and a range of speciality stores. Lot 12 was dedicated to the State, as park, with the Council as trustee in about 2002, pursuant to conditions of approval of the shopping centre. It remains under that regime at present, but the appellant (IVL) has a conditional contract to purchase the park.

Lot 12 has no road frontage. It is a vegetated strip of land, not used for any formal or organised sport or recreation, which separates the rear of the shopping centre to the north from the rear of residential properties which front Sycamore Parade to the south. There is an acoustic fence, constructed pursuant to conditions of the shopping centre approval, on the boundary of Lots 11 and 12. There are fences along the boundary of Lot 12 and the residential properties which front Sycamore Parade. Access to the centre from Lot 12 is via the pedestrian pathway from Teak Lane that runs north/south between the Sycamore Parade houses, through a gate in the acoustic fence, on the boundary of the shopping centre. Another informal access to Lot 12 is possible via the Council parkland at the east of Lot 12. To the west of Lot 12 is an Energex substation. Informal paths exit adjacent to the southern boundary and close to the eastern boundary, from the neighbourhood park to the shopping centre.

There is a history of reports of problematic behaviour linked to the park on Lot 12 and/or the Teak Lane access. That is discussed later. Ultimately, IVL was encouraged by officers and councillors of the Council to acquire Lot 12 and amalgamate it into the centre. That was so notwithstanding that IVL had made it clear that it would only do so on the basis that the land was incorporated into its carpark.

On 15 September 2014, IVL applied to purchase Lot 12. On 8 October 2014, the Council unanimously resolved to surrender its trusteeship of Lot 12, subject to an assurance that public access via Teak Lane, between Sycamore Parade and the centre would be retained. On the same day the Mayor sent a letter to the Minister for Natural Resources and Mines supporting IVL’s application to purchase Lot 12. The Council and the State provided written consent to the lodgement of the subject development application on 26 February 2016 and 21 March 2016 respectively. On 21 March 2016, the appellants executed a conditional contract to purchase Lot 12. The development application was lodged on or about 24 March 2016.

It appears that there was a change of heart from the Council within about a month of the development application being lodged and subsequent to local government elections. On 27 April 2016, the Council, by majority, passed a resolution to advise the department that it had changed its view about relinquishing trusteeship. On 3 June 2016 the State advised to the effect that this did not affect the decision to sell to IVL. It is common ground that, notwithstanding the various Council resolutions, the Council remains trustee of the land and will continue to be so until and unless the conditional contract with the State (the fate of which is dependent upon the fate of the subject development application) is completed.

The Council subsequently, and again by majority, and contrary to the recommendation of its officers, resolved to refuse the subject development application. The Council’s position is consistent with a body of local resident opposition to the proposal.

The appellant no doubt feels somewhat aggrieved by the Council’s change of attitude at a political level and by the rejection of a proposal which it was encouraged to make and which had the recommendation of the Council’s officers. The role of this court however, is not to hold the Council to its initial encouragement, but rather to carry out an assessment of the merits of the matter anew on the evidence before the court.

The proposal

The proposed development is for the conversion of the park into a landscaped carpark within the existing shopping centre which incorporates:

(a) 185 car spaces;

(b) a 3m wide landscape strip along the southern boundary with further landscaping indents up to about 8.1m in width;

(c) acoustic fencing along the southern boundary;

(d) retention of pedestrian access off Teak Lane;

(e) an approximately 15m landscape buffer off the western boundary;

(f) generally speaking, a 3m wide landscape buffer off the eastern boundary, with some acoustic fencing, and

(g) provision for an additional pedestrian access off Sycamore Parade at the eastern end of Lot 12.

The carpark would adjoin the existing “back of house” of the shopping centre, where buildings both are orientated and address their activities away from the carpark.

The assessment framework

The development application was made during the time that the Sustainable Planning Act 2009 (“SPA”) was in force. The development application was impact assessable and so was to be assessed pursuant to s 314 of SPA and decided in accordance with ss 324 and 326. The latter provides that the decision must not conflict with a relevant instrument unless there are sufficient grounds to justify the decision. A relevant instrument includes a planning scheme. Grounds are defined as matters of public interest.

The appellant bears the onus.[1] The appeal proceeds by way of hearing anew.[2] The appeal must be decided based on the laws and policies applying when the application was made but the court may give weight to any new laws and policies the court considers appropriate.[3]
[1]s 493 of SPA.
[2]s 495 of SPA.
[3]s 495 of SPA.

Despite the fact that the Planning Act2016 and the Planning and Environment Court Act2016 have now commenced, those Acts have no role to play in the context of this appeal.[4]
[4]See s 311 of the Planning Act2016 and s 76 of the Planning and Environment Court Act2016.

The issues

The issues in the appeal may be broadly described as:

(a) the nature and extent of conflict with the current Redlands planning scheme;

(b) whether there are grounds to justify a decision to approve development application in the face of conflict with that scheme, and

(c) the weight to be given to the draft planning scheme (and any conflict with that draft scheme).

The appellant concedes that there is obvious, self-evident and significant conflict between its proposal and the planning scheme. Further, there is substantial consistency in planning intent between the relevant provisions of the existing and draft planning schemes. Ultimately, the decisive issue is the sufficiency or otherwise of the grounds relied upon by the appellant to justify a decision to approve the application despite the conflict with the planning scheme. Indeed, as learned senior counsel for the appellant submitted, “this is, clearly, a grounds case”.[5]
[5]T5-4.

The conflict

Pursuant to the current Redlands Planning Scheme, the subject site is included in the open space zone, shown as part of an “Urban Habitat Corridor” for the purposes of the Strategic Framework and as “Bushland Habitat” on the Habitat Protection Overlay Map.

The Council alleged conflict with the following provisions of the current planning scheme:

(a) Desired Environmental Outcome 1 – which seeks to ensure development protects and enhances a wide range of natural ecosystems;

(b) Strategic Framework – Intent – s 3.2.3(7) – in relation to its identification as part of an Urban Habitat Corridor;

(c) the Overall Outcomes of the Open Space Zone Code, particularly (a), (b), (c), (d), (e) and (f);

(d) the Specific Outcomes of the Open Space Zone Code, particularly s 1.1, s 1.2, s 2, s 3.1, s 3.3, s 4.3, s 4.5, s 5.1, s 5.2 and s 5.4;

(e) Overall Outcomes for the Habitat Protection Overlay Code s 5.7.7 (discussed later).

The Strategic Framework reflects the desired environmental outcomes and summarises the approach taken by the Redlands planning scheme to achieve the desired environmental outcomes,[6] but s 3.2.1(2) of the Planning Scheme states that “The Strategic Framework does not have a role to play in development assessment under the Redlands Planning Scheme”. I have therefore placed no weight on the Council’s allegation of conflict with the Strategic Framework.
[6]s 3.2.1(1).

This was not one of those cases which featured lengthy debate about the interpretation of planning scheme provisions in order to establish or avoid conflict. It is unnecessary to rehearse the details of each of the provisions. As was acknowledged in the submissions on behalf of the appellant, increasing the shopping centre use through the provision of additional car parking and landscaping on land zoned “open space” pursuant to the current planning scheme obviously involves conflict. As learned senior counsel for the appellant put it “if one is required to dedicate land for open space purposes, it’s going to go under controls which are going to make it a conflict, or involve conflict, if that land is taken back into a shopping centre”.[7]
[7]T5-1.

Whilst some specific issues, such as the conflict said to arise by reference to light and noise and traffic impacts (discussed later) has been dealt with, the proposal nevertheless flies in the face of what is planned for land so zoned and is in substantial conflict with provisions of the scheme in that regard. It is, amongst other things, a carpark for uses identified as inconsistent uses in the zone.[8] Specific Outcome s 1.1 of the Open Space Zone Code provides that such uses are not to be established on or undertaken in the zone.
[8]Part of the shop use.

The Overall Outcomes for land in the Open Space Zone include that they support the retention and enhancement of habitats and minimise the need to clear native plants, whilst the Specific Outcomes include site layouts that complement existing landscape features, including bushland habitats. Clearing a vegetated park with local environmental significance (discussed later) to turn it into a landscaped carpark for a shopping centre plainly brings the proposal into substantial conflict with the provisions of the scheme in relation to land in the Open Space Zone.

As is discussed later, the ecologists agreed that the site contains values of environmental significance that would be lost as a result of the proposal, such that there is conflict with the scheme’s provisions relating to ecological matters. I note that, consistently with the conduct of the appellant’s case, the town planners’ joint report proceeded on the basis that “the proposed development conflicts with the relevant planning scheme provisions of the site’s zoning, strategic designation, and overlay mapping”.[9]
[9]Ex 7 para 62.

It was submitted for the appellant that whilst the conflict is significant, its gravity could be seen as moderated by what were said to be the shortcomings or limitations of Lot 12 ecologically and as open space. Those matters are considered later.

Pursuant to the draft planning scheme, the subject site is included in the Recreation and Open Space Zone and is mapped as of local environmental significance. There are a number of provisions in the draft planning scheme upon which the Council relied. It is unnecessary to refer to any of them in detail. As has already been noted, they do not reflect any substantial shift in planning intent relative to the provisions of the current planning scheme which apply to the subject application.

Grounds

The grounds relied upon by the appellant include that there is a community and planning need for the proposed development. There was no evidence to suggest any particular need, at present, for an expansion to the shopping centre carpark. At most, it was postulated that additional car parking may allow for some future expansion of the shopping centre, but there was no evidence that such expansion is either currently planned or needed.

Having pointed out that the Southeast Queensland Regional Plan (SEQRP) places Lot 12 within the Urban Footprint and identifies the centre as a Major Regional Activity Centre, it was submitted, for the appellant, that:[10]

“In other words, while there may be no particular present need, there is always a need, in the public interest, to permit planned centres to be able to expand to accommodate the needs of the community as it invariably grows. This proposal assists to accommodate that outcome.”

The fact that the shopping centre has that designation under the SEQRP however, falls short of establishing, of itself, that there is any significant community and planning need, at present, for an expansion of its carpark beyond the area currently set aside, in the planning scheme for centre activities.

[10]Written submissions for the appellant, para 169.

The appellant’s grounds otherwise rely more on an asserted public interest in removing or reducing the reported behavioural problems associated with the use of the park (by turning it into a carpark instead) in light of the asserted limited utility of retaining Lot 12 as a park otherwise. In that regard, the appellant’s grounds otherwise, more fully set out in exhibit 22, may be summarised as follows:

(a) approval of the proposed development will lead to improved amenity and Crime Prevention Through Environmental Design (CPTED) Outcomes, reduce or remove criminal activity and vandalism in the locality, reduce or remove anti-social behaviour from the locality and result in improved lighting outcomes;

(b) IVL has relied upon, and acted in good faith upon, the actions of the Council and the State Government in pursuing the proposed development and this appeal;

(c) the zoning and designation of the land under the planning instruments is not soundly based (or is no longer supportable) and has been overtaken by events;

(d) the land has no relevant environmental or social values or no such values worth preserving in the public interest in light of the serious issues of the Lot in criminal and social terms;

(e) the locality is well-served by alternative open space areas for active and passive recreation and for habitat purposes;

(f) the shape and location of the subject land is such that it cannot reasonably be developed for purposeful recreation or environmental activities;

(g) the proposed development is consistent with the character of the area, the planned future character of the area, is logical and efficient infill development, will not result in unacceptable amenity or social impacts, facilitates outcomes sought by the current and draft planning scheme and the SEQRP and will deliver important social benefits and improvements to the community.

I do not regard IVL’s good faith in pursuing the proposed development and the appeal as justification for granting an approval in conflict with the planning documents. The issue is whether a decision to approve the proposal, which has been pursued in good faith, is in the public interest. I do however, accept that the issue of public safety, in dealing with the anti-social behaviour issues reported in relation to Lot 12, which provoked the Council’s encouragement, to which IVL responded, is one of public interest. The matters raised in the grounds otherwise are dealt with elsewhere in these reasons.

Submissions, the evidence of residents and reasonable expectations

The development application was publicly notified in July 2016 and attracted 31 properly made submissions, 9 of which were in support of the application. A petition opposing the application was also received. An analysis of the submissions by Mr Reynolds[11] showed that of the 14 houses on the northern side of Sycamore Parade adjoining the parkland, 13 objected to the proposal by a separate submission or by signing the petition. Residents from another 18 houses on Sycamore Parade also objected to the proposal. Although Mr Schomburgk (the town planner engaged by the appellant) was of the impression that a number of submissions from local residents were in favour of the proposal, a review of the submissions reveals that not to be the case, with many of those in support having some current or past association with the shopping centre.[12] Mr Schomburgk did not dispute the fact of local resident opposition.[13]
[11]See exhibit 7 para 59(a) as corrected in T4-39.
[12]Exhibit 2, page 308-332 – page 308 – Morrison – property manager of shopping centre, page 311 – Gauci – maintenance contractor for shopping centre, page 319 – Pitt – former contract manager for cleaning contractor for shopping centre, page 322 – Welsh – former member of centre management, page 324 – Zsolczay – security provider to shopping centre – page 327 – Lancini, page 325 – Stubbings – former member of centre management.
[13]T4-15.

The submissions in support of the proposal focused on the history of anti-social behaviour on Lot 12. Those who opposed the development application raised concerns about the loss of the vegetation in Lot 12 and the greenspace, habitat and amenity, including visual amenity, it provides. Concern was also expressed about the loss of a ‘barrier’ to the shopping centre. The level of anti-social behaviour was challenged and concerns were raised about the prospect of anti-social behaviour in the carpark.

Two residents of Sycamore Parade, Mr Green[14] and Mr Hopkins,[15] gave statements of evidence. Their evidence about the extent of anti-social behaviour on Lot 12 is discussed later. Mr Green’s evidence was that he values the reserve very highly as a place for walking, enjoying listening to birds and as a backdrop to his property. Its existence played a key role in his decision to purchase his property. Mr Hopkins also values having the park behind him, particularly the trees and says that it was a major reason in his decision to purchase his property as well. He also made reference to the wide variety of wildlife in the park.
[14]Exhibit 20.
[15]Exhibit 21.

Obviously, the proposal does not accord with reasonable expectations concerning development on Lot 12, given the planning scheme provisions. Indeed, as was submitted for the respondent, what is proposed is the antithesis of what would ordinarily be expected. Mr Schomburgk accepted that “ordinarily the conversion of an open space area to the shopping centre carpark is not within anyone’s reasonable expectations” such that there would need to be very good reasons to do it.[16]
[16]T4-25.

Similarly Mr Reynolds (the town planner engaged by the respondent) said in the joint report that “the loss of the open space is well beyond the reasonable expectations of the residents adjoining the existing parkland. Even a cursory review of the planning scheme establishes an expectation of open space adjoining these houses. The site condition, reinforces the expectation, that the bushland character will be retained in the long term. The proposal is in stark contrast with this reasonable expectation.”

CPTED deficiencies and anti-social and criminal activity

A primary justification for the proposed conversion of public parkland to shopping centre carpark extension is the asserted public interest in removing or reducing the level of risk associated with the inherent CPTED deficiencies of the park. That calls for an assessment of the nature and extent of those deficiencies, the seriousness of their consequences, the extent to which the proposal will likely resolve the issue and a balancing of that issue with other considerations.

The overall outcomes for land in the Open Space Zone include the creation of open space areas that are safe and comfortable for users.[17] More particularly, the overall and specific outcomes in relation to built form and design seek to maximise CPTED principles.
[17]4.16.7(d)(i)(b).

Lot 12 has a number of deficiencies from a CPTED perspective. The experts who were engaged to examine open space, CPTED and urban design issues (Mr Alston by the appellant and Mr Byrne by the respondent) agreed that the park has in its location, design and use a number of observable attributes that, in the eyes of current knowledge and practice of CPTED, are less than desirable and likely to facilitate or fail to lessen potential problems.

The CPTED experts noted that the site examinations revealed as follows:

“a. The tall acoustic fence along much of the VPTC (shopping centre) boundary prevents visual surveillance into the Reserve from the Town Centre;

b. The parts of the retail precinct that are closest to the acoustic fence are rear service spaces with functionally single-storey or industrial scale buildings (with few service doors and no upper-level windows on their southern faces) that are orientated in their address and activities away from the Reserve;

c. The height and construction of backyard fences of the adjoining houses on the southern side which face the other way towards Sycamore Parade (and the design of structures in some backyards close to their rear boundaries, none of which appear to make an attempt to interact) therefore similarly prevent or make unlikely passive visual surveillance into the Reserve;

d. While many domestic rear yards or gardens have gates in the back fences, possibly (from site inspection) only one seemed used (although a dwelling just passed the western end had what appeared to be two actively used gates or openings);

e. While there are lengthy east-west views along the informal path close to the domestic back fences, the nature and extent of low to mid-level vegetation towards the northern boundary in various parts makes views (even from close by) into or through some parts of the Reserve difficult;

f. Public lighting is limited to two seemingly small lights on a single pole close to the path connecting Teak Lane to the gateway into the retail precinct and (although our inspections have been in day-time) we presume most of the Reserve is a rather dark place at night, unless there is spillage without difficult shadowing from the Town Centre or houses in some places;

g. The Teak Lane axis gateway offers limited surveillance (such as helping “warning” of others) from either direction for pedestrians passing through that point;

h. The informal east/west path does not connect with other formal pedestrian paths or spaces at the western end intended for pedestrian connectivity across the Energex land (for example, towards traffic lights on the main road) and so perhaps discourages greater use;

i. Similarly, the path at the eastern end where it meets Sycamore Parade Park makes no directed pedestrian connection towards Sycamore Parade (although that might practically reflect the variety of choices across the park’s gentle terrain for pedestrians);

j. The informal path along the eastern side does not connect physically with any path into the car-parking area of the retail precinct and so perhaps discourages some and prevents those relying upon wheelchairs or using prams from using it (who must instead rely upon the Teak Lane access to the west).”

The experts went on to observe that

“The Reserve therefore, by its design, development and management, has observable CPTED-related issues within its shape and edges:

a. poor active and passive surveillance in many places which therefore must force reliance for that principally from those within or passing through the space (and residents whose attention may have been sufficiently captured by sounds to move to investigate),

b. poor lighting,

c. “hidden” places created within the corridor (by vegetation rather than shape) which arguably have encouraged and facilitated informal gatherings or even “camps” for anti-social activities, and

d. five points of access in, across and out of the space, which are both desirable for legitimate users and to the advantage of illegitimate users.”

The CPTED experts went on to observe that there were factors which might serve to lessen the number of people passing across the park, including:

· the absence of legible, practical, legal and “territorially public” connection at the western end;

· what appears by inspection to seem a lack of encouragement for pedestrian “visitor/shopper” movement to and from (or through) the retail precinct for residents of the neighbourhood;

· the lack of path, ramp and/or steps at the north-eastern corner or any clear pedestrian connection to the retail “front-of-house” including the major supermarket tenancy;

· the visual and physical quality of the spaces around the Teak Lane gate, and

· the physical environment and aesthetic quality for pedestrians between that gate and the “front-of-house” of the shops.

In his evidence in chief, Mr Alston attested that, “from a CPTED open space point of view, it’s hard to get a worse site”.[18] He regarded it as an unsafe place for public activity.[19] Mr Byrne, in cross-examination, accepted that the site had difficulties in terms of the CPTED principles of surveillance,[20] territoriality,[21] and vulnerability.[22]
[18]T3-7.
[19]T3-8.
[20]T3-44.
[21]T3-44. See also the evidence of Ms Morrison as to complaints received by centre management about Lot 12 issues.
[22]T3-47.

In the joint expert report, Mr Byrne pointed to the availability of strategies to improve the park from a CPTED perspective. Indeed he set out a list of some 17 potential measures for consideration. Counsel for the Council however, made it clear that the respondent, whilst not ruling anything out, is not committed to ensuring any of those. Mr Reynolds also spoke of the potential for increased management over time, depending on Council budget allocations. In the circumstances however, and given the history, the matter should be considered on the assumption that, should the development application be refused, the park will not necessarily be materially better or more effectively managed than is currently the case. The management currently consists of a rubbish collection on a contract basis each Monday. There is also a contractor for weed management and limited vegetation management that may be necessary in the range of 4 to 8 times a year and mowing is carried out periodically.[23]
[23]T4-40.

Mr Powell, who was called by the appellant as an expert in relation to social planning, pointed to the following factors as, in his view, increasing the prospects of the site attracting anti-social behaviour:

· the site is in a locality of relative socio-economic disadvantage and high unemployment including high youth unemployment;

· a school is in close proximity, such that the site is amenable to truants (although Mr Powell had not contacted the school and could not point to anything to show the prevalence of truants visiting the site)[24];

· the site is secluded, but close to a main road and major facilities (via the shopping centre)

[24]T1-52.

As was recorded in the joint report of Mr Alston and Mr Byrne, the proposal had its origins in the frustration of unsuccessful attempts (including by trial of multiple actions) over time to deal with complaints of a variety of anti-social behavioural issues concerning the park. A small number of residents maintained frequent correspondence with Council and others in this regard.

Ms Morrison has been the shopping centre manager since November 2003. She set out in her affidavit some of the strategies which, as property manager of the centre, she, in consultation with Council officers, caused the centre to implement and fund, to seek to address the issues.

As the joint report also records however, there are now differing views about the prevalence and seriousness of anti-social behaviours. With the proposal for the park to be replaced by a carpark, residents have stopped complaining, or report that problems have now diminished.[25] Since the residents’ complaints stopped in about 2014, the centre management has increased its surveillance of the park area, instructing its security guards to incorporate Teak Lane in their walk around the site and to report incidents.[26] The appellant contends that the anti-social behavioural issues are ongoing, notwithstanding the fall-off in resident complaints.
[25]Ex 10, para 105.
[26]T1-92.

The most comprehensive information about reported incidents in the park comes from the affidavit of Ms Morrison. She gave a comprehensive record of incidents that she can recall or identify.[27] These include disclosure from the Council.[28] Further, the appellant also made an information request to the Queensland Police Service for police investigations, complaint reports and material of any type related to any matters in Lot 12, including any resident surveys or activities.[29] Reports obtained were included in the material. Such incidents are of concern to centre management as some such activity impacts upon the centre or its customers and dealing with the issues is an ongoing drain on its resources. Ms Morrison also expressed a concern about the effect upon the reputation of the centre and its attractiveness.
[27]T1-81.
[28]T1-105.
[29]T1-102.

Ms Morrison reports that the issues associated with Lot 12 include:

(a) assaults and fighting;

(b) fires;

(c) drug taking;

(d) drunken and disorderly behaviour;

(e) paint and glue sniffing;

(f) vandalism;

(g) intimidation of residents;

(h) soliciting;

(i) graffiti;

(j) loitering;

(k) persons being trapped within the area;

(l) truancy;

(m) dumping of rubbish.

Ms Morrison referred to 2 reports of assaults which were notified to police in 2014 and 2016 respectively. Reference to the police documents[30] however reveal that the 2014 incident related to an incident in “a public laneway which adjoins residential houses” (suggesting that the location was the laneway) in which a juvenile offender used offensive language and physically assaulted his friend. The matter was dealt with as a public nuisance. The second was recorded as an assault occasioning bodily harm, and although recorded[31] in the police report as occurring in Sycamore Parade Park, was believed by Ms Morrison to have occurred in Lot 12 since the incident report referred to a distraught girl having come into a tenancy of the shopping centre[32] and there was a subsequent police enquiry about the availability of CCTV footage.
[30]Exhibit 19, vol 2, page 529.
[31]Exhibit 19, vol 2, page 523.
[32]Exhibit 19, vol 2, page 534.

It was submitted, for the respondent, that an analysis of the material exhibited to Ms Morrison’s affidavit paints a rather less concerning picture than the appellant suggests. It was pointed out that a substantial proportion of the incidents have been reported as occurring in the laneway or around the gate, where an access will remain with the proposal. Ms Morrison pointed out[33] that the entirety of Lot 12 is often referred to as Teak Lane, so there is some lack of certainty of location about the reports of at least those incidents which, by reason of their content, are not specific to the lane/gate.
[33]T2-40.

There is also a number of incidents which are related to maintenance (e.g. dead tree branch caught amongst other trees) or other non anti-social issues.

There is however, a range of other reported incidents in relation to the park. A number of reports, including of recent times, relate to graffiti, litter, evidence of alcohol consumption and drug taking. Indeed I note that Mr Alston and Mr Byrne found a disused syringe on or near the park during one of their site inspections. Mr Moffitt also found syringes on his first inspection which led him to decide against sending his team out to do spotlight searches as night.[34] There have been past incidents of fire, including one of recent times.
[34]T2-10.

Two residents, Mr Green and Mr Hopkins saw the issues in the park as minor. Mr Hopkins saw past problems with “youth smoking, carrying on, and sometimes drinking alcohol and being noisy” as not happening anymore and he has no current concerns although he occasionally sees a bit of graffiti, mainly during school holidays. Mr Green says that current issues are minor and generally no more than bad language of those using the access to the shopping centre. He has experienced some graffiti, which he regards as minor. He has no concerns in allowing his children to walk through the park. Counsel for the respondent relied on that evidence, the absence of recent complaint from any neighbour and the absence of any expression of concern or interest in the matter from the police. The evidence of Ms Morrison however, satisfies me that there is a level of continuing anti-social behaviour associated with Lot 12. Indeed counsel for the respondent accepted,[35] in the course of submissions that the site has problems as far as anti-social behaviour is concerned. Further, as Mr Byrne accepted,[36] with the park in its current configuration and subject to its current management, there will be a continuing risk of future antisocial behaviour. That must however, be weighed with other considerations.
[35]T5-18.
[36]T3-51.

Lot 12 is not the only place where there is a risk of anti-social behaviour. The shopping centre has file notes of all instances of anti-social behaviour and criminal behaviour in the centre itself that are known to management or are reported to it.[37] In addition to guard reports, management has file notes of incidents within the centre itself.[38] Incidents within the centre itself are the subject of a separate file note.[39] Centre management is not, however, provided with details of what goes on at the tavern in terms of police incidents, nor at McDonalds.[40] The only file notes within Ms Morrison’s affidavit were those to do with Lot 12.[41] Unsurprisingly however, Ms Morrison acknowledged that graffiti, vandalism, drug use, alcohol consumption, discarded syringes and the theft and dumping of shopping trolleys were all issues encountered in the shopping centre.[42]
[37]T1-88.
[38]T1-86.
[39]T1-87.
[40]T1-102.
[41]T1-86.
[42]See T1-88, 98, 99.

It has already been observed that the proposal retains a Teak Lane connection, so that any anti-social behaviour from those using that connection (possibly, for example, having come from the tavern) will not be eliminated by the proposal. Further, as Mr Byrne pointed out, the proposed carpark into which Lot 12 is proposed to be converted, would also have its own CPTED deficiencies and potential for anti-social behaviour issues.

It has already been noted that the proposed carpark is to be positioned in a ‘back of house’ area, where buildings and activity are orientated away from the carpark. The area is service and vehicle orientated, with no apparent incentive for pedestrians to be or to linger (other than to park). The joint report of the traffic engineers recorded[43] that it is expected that the parking area, if constructed, will predominantly be used as staff parking[44] and will have a relatively low turnover compared with existing car parking areas. Further, the location of the parking at the rear of the buildings in combination with the low turnover will, they agreed, result in limited casual surveillance of the area which is not ideal in terms of safety and security, although they also agreed that the level and frequency of surveillance would increase compared to that which is able to be provided for the existing park use. Acoustic fencing will prevent surveillance from adjoining residences.[45]
[43]Exhibit 8, paras 11-12.
[44]Ms Morrison confirmed the intention for the area to be used for staff parking, although not exclusively so – T2-37.
[45]T3-15.

Further, the consensus seems to be that the levels of the carpark would generally correspond with those of the park, in which case there will be a retaining wall in existence close to the rear of the back of house, potentially affecting lines of sight.

There is no CCTV[46] and there is to be no restriction of after-hours access.[47] Ms Morrison’s evidence was that night time patrols are random (twice a night) at the back of house.[48]
[46]T1-97.
[47]T2-37.
[48]T2-35. There are 3 patrols, 1 of which is a lock check and the other 2 are random checks. Loggers are place at different parts of the site. A logger could be installed to ensure that the random patrols went to that area.

Mr Shomburgk, although supportive of the proposal, fairly acknowledged that the proposal has its own CPTED issues and was “not desirable”[49] in its location from that perspective.
[49]T4-27.

Mr Byrne’s evidence, based on his experience which includes having been the principal author of the State’s CPTED Guidelines, was that:[50]
[50]Exhibit 10, para 116.

“… On balance, the proposed new car-parking area would, have qualities that reduce or challenge the in-principle potential for stronger management and control (associated with the clarity and interests of their ownership). The new rear space would:

· have poor surveillance with little or no support from adjoining buildings or monitored CCTV and from likely reduced third-party pedestrian presence (either eliminated east-west movement or potentially discouraged on connections such as Teak Lane);

· …

· if used for staff parking, create increased vulnerability for vehicles and perhaps associated staff;

· seem likely to decrease engagement by adjacent residents or others in the neighbourhood in support of the safety and use of the locality;

· not remove the more recent late-night anti-social behaviours associated with the tavern; and

· quite possibly facilitate a different array of anti-social behaviours within the rear-of-site space.”

Further, Mr Byrne considered that the new car parking would both:[51]

“• inherit CPTED problems that are inherent in the existing layout of retail precinct (which earlier lined up back-of-house service spaces along the boundary with the Reserve) and increase the area affected without addressing that situation”

[51]Exhibit 10, para 118.

Mr Byrne considered that there would be a significant change if the proposal proceeded, but potentially little or no significant relative or important improvement. He conceded that the current CPTED problems would disappear because the change would be so dramatic,[52] but that there would potentially be a different array of behaviours.[53] He considered that there would be a change to the type of anti-social behaviour, such as vehicle-facilitated or related anti-social behaviour such as hooning or other anti-social activity which occurs elsewhere in the precinct, but which would find the increased seclusion of the expanded rear parking area attractive.[54] In his testimony he explained:[55]

“We can talk about CCTV, we can talk about surveillance and intervention but there are activities that are more car based, motorbike based, vehicle based that use the openness of it or use the ability to get away quickly for a different range of activities. We hear talk of drug dealing in car parks or shopping centres and things like that. Now, if somebody is coming from the tavern at night in the early hours of the morning, at the moment they come through a very narrow little space between the buildings into Teak Lane across the vegetated space, that’s a risk in itself but there may well be others in the vicinity of the car park which, if it becomes a car park, who also present a question there, once it becomes likely that somebody’s walking that way. So I can’t actually say to you this is better than that. They are different and I cannot predict – I would be surprised if anybody would predict absolutely that this is 60 per cent better than that, they are different.”

[52]T3-60.

[53]T3-60.

[54]Ex 10, para 114d.

[55]T3-55.

Mr Byrne seemed to struggle somewhat with his view as to where the balance lay when confronted with the fact that the Council was not committed to his recommendations for the improvement of Lot 12.[56]
[56]See for example T3-56, 57; T3-59, 60.

It was pointed out, for the appellant, that notwithstanding its deficiencies, the carpark would be a more open area with greater levels of lighting, activity, and surveillance than the park. Mr Alston, for his part considered that there was a significant advantage, in converting Lot 12 from a publicly owned and largely unmanaged space to one with private assets which could reasonably be expected to be managed, on a day to day basis, by centre management during daylight hours and security surveillance at night. That would also overcome ambiguity about responsibility for the space (territoriality).

I accept that the park is poor in CPTED terms and that its deficiencies, in this respect, have likely contributed to its ongoing incidence of anti-social behaviour. I also accept however that the proposal has its own significant deficiencies in CPTED terms. It is likely, by reason of the matters to which Mr Alston referred, to have some advantage, but it is a case of a proposal to replace a park with CPTED problems with a carpark with CPTED problems in the context of a retained Teak Lane connection.

Need for open space

The Redland City Council Open Space Strategy 2026 (developed in 2012) undertook a major review of the need for open space across the City. The Strategy considered recreation park needs and the availability of open spaces for activities at a Neighbourhood Catchment level. The subject site is in Neighbourhood 39.

The only activity shortfall noted in the Strategy for this Neighbourhood was that there were no teenage-focused facilities in the neighbourhood.

Adjacent to the subject site is the 13,493m² Sycamore Parade Park which is a full-sized Neighbourhood Park. Mr Alston and My Byrne agreed that there is no need or value in another Neighbourhood Park that is adjacent to an existing full-sized park as there are no expected activities that cannot be catered for in the Sycamore Parade Park. A larger park will require resources to maintain it so unless it is meeting a need then there is no open space planning case to add additional land to the Sycamore Parade Park.

Sycamore Parade Park has clear open grass areas for approximately half the space with the other half remaining uncleared. The two settings within the park offer children the opportunity for nature play experiences in the bushland half as well as formal play on the playground in the cleared portion of the park.

Additional bushland experiences are available in Parklands Court Bushland Refuge some 500-600m from the subject site.

While the Redland City Council Open Space Strategy 2026 does note a need for additional sporting open space, the experts agreed that the subject site is not suitable for that.

Mr Alston and Mr Byrne were in agreement that the area is well served by alternative open space areas for active and passive recreation. The active and passive recreation needs of the community can adequately be met without Lot 12, although that does not, in and of itself, warrant the destruction of Lot 12 as open space.

Utility/amenity of Lot 12 as open space

Notwithstanding that the proposal includes landscaping, it will effectively extinguish Lot 12 as open space. The appellant’s case is, in effect, that Lot 12 has no sufficient value as open space to warrant its retention as open space in the circumstances. This was a key area of divergence between the town planners.

Mr Reynolds did not consider that the CPTED issues materially negated the open space functions that the site provides. He was criticised, by the experts called by the appellant, for saying that anti-social behaviour ought, to some degree, be reasonably expected in an urban setting, but he explained that the key point was whether such matters have devalued the open space to the point where it has been negated.[57] He did not consider that it has, and pointed to the values which this park provides (discussed below).
[57]T4-42.

Mr Schomburgk on the other hand, expressed the view in the joint report that the site’s park/open space values are only negative values. As he acknowledged in cross-examination however, that view put to one side the site’s ecological values and that if it were determined that the site had such values, that would be a matter to be weighed against approval.[58] He also acknowledged, in the course of cross-examination, that there are legitimate users of the open space for recreation purposes during daylight hours[59] and that the site serves as a visual buffer.[60] On reflection he conceded that his statement about the site having only negative values could not stand “in total”.[61]
[58]T4-20.
[59]T4-20.
[60]T4-20.
[61]T4-21.

It has been noted that Mr Schomburgk erroneously thought that a number of submissions from residents were in favour of the proposal. He confirmed that this understanding was material to his overall opinion; and agreed that if it were established that he was incorrect in his understanding, that would represent an erosion of his overall conclusion;[62] and also that if, contrary to his understanding, from the local residents’ perspective there was no support for what is proposed, that would be a very important factor in the balancing exercise.[63] Consideration of the submissions confirms that he was indeed incorrect.[64]
[62]T4-32.
[63]T4-35.
[64]Exhibit 2, pp 303–341.

It was contended, for the respondent, that Lot 12, in its current form, has at least the following values or functions:

1. Ecological value;

2. Function as a buffer;

3. Contribution to visual character;

4. Role in providing visual relief to the built form; and

5. Provision of opportunities for passive recreation.

(i) Ecology

Under the current planning scheme the site is shown as part of Bushland Habitat on the Habitat Protection Overlay. In the draft planning scheme, the site is mapped in the Environmental Significance Overlay as having Local Environmental Significance.

The ecological values of Lot 12 were examined by Mr Moffitt (engaged by the appellant) and Dr Watson (engaged by the respondent). They found that the site supports a variety of native flora, with limited weed species. Several large mature canopy trees exist throughout the site. Vegetation on Lot 12 contains both mature and regrowth trees over a variably disturbed lower strata. A recent survey of trees with a diameter at breast height of greater than 300mm found some 153 such trees on the subject site, of which some 109[65] were identified as koala habitat trees. Growth and development of the vegetation has improved the conserved vegetation’s qualities since it was set aside as park. The tree species and associated vegetation provide habitat (foraging, nesting, denning etc.) resources for a number of native fauna, particularly more mobile species.
[65]T2-23.

The site lies in an urban context, but there are potential fauna linkages/connections within the local landscape[66] as well as larger areas of habitat, most notably, the Eprapah Creek Reserve, within the broader landscape.[67] With the exception of the shopping centre development, the local landscape linkages appear to be similar to that which existed when the park was dedicated.[68]
[66]Exhibit 9, p 30.
[67]Exhibit 9, p 29.
[68]Exhibit 9, para 37.

The ecologists agreed in their joint report that the site contains values that are of environmental significance. Dr Watson supported the Council’s (ecology) mapping as an accurate representation of the values associated with the site. Mr Moffitt agreed that the vegetation and habitat values of the site are both locally significant[69] and was in agreement with the site’s designation of local environmental significance under the draft planning scheme.
[69]T2-13.

The ecologists also agreed in the joint report that the site’s values would be lost as a result of the proposed development,[70] resulting in conflict with elements of the current and draft planning schemes. Some further landscaping was subsequently incorporated into the proposal, but Mr Moffitt did not cavil with the proposition that there would still be little meaningful ecological outcome achieved by the proposal.[71] Dr Watson did not see it as a significant ecological improvement.[72]
[70]Exhibit 9, para 112.
[71]T2-19.
[72]T2-24.

In his joint report, Mr Moffitt expressed the opinion that the impact of the proposal was sufficient to warrant an offset[73] to address the loss of locally significant biodiversity values. Mr Moffitt agreed with the following:[74]
[73]Exhibit 9, para 109.
[74]T2-16, 17

(a) as a general concept, the type of offset arrangement that he had in mind would be one consistent with the Queensland Offsets Policy;

(b) offsets are intended to be used as a tool for circumstances where there is an unavoidable impact on significant environmental values; and

(c) the framework which applies to development involving offsets in the Policy is one of “avoid” – “mitigate” – “offset”. What that means, is that in designing development, impact should be avoided wherever possible. Then, and only then, if it can’t be avoided, it should be carefully managed and mitigated.

No offset was proposed and, in the course of submissions, learned senior counsel for the appellant confirmed that none was to be proposed. It was only in his individual statement of evidence, after his joint report, that Mr Moffitt proffered the opinion that the environmental values of the site are not so great as to mandate offsets and, in that regard, went on to say that the court may decide that the community interest is sufficiently served by the proposed development resolving the anti-social issues that presently occur. He acknowledged however[75] that his shift of position, in that regard, involved matters outside the areas of his expertise.
[75]T2-16.

Given the agreement between the ecologists that Lot 12, in its current state, has ecological value which would be lost by reason of the proposal, it is unsurprising that they also considered that the proposal would conflict with aspects of the planning documents in relation to ecological concerns.

Insofar as DEO1 is concerned Dr Watson took a rather broad view of the provisions whereas Mr Moffitt reflected upon the particular subparagraphs. He nevertheless conceded some conflict with that part of the DEO which seeks to ensure that development protects and enhances a wide range of natural ecosystems, including koala habitat ((a)(i)(e)) and locally significant patches, corridors and mosaics of bushland that support wildlife throughout the city ((a)(i)(f)) and species of native flora and fauna ((a)(ii)).

DEO1(a)(i)(e) speaks of protecting and enhancing koala habitat, in order to meet a net gain that will assist in the long term retention of a viable koala population. There are, as has been noted, a substantial number of koala habitat trees on site which would be lost by reason of the development. Dr Watson found some evidence of scratches on a number of trees along Cleveland-Redland Bay Road, the subject site and to the east, and whilst there was debate about the connections for koala, it is common ground that there is sufficient connectivity for koala use of the site. However, most of the site, and adjoining areas of the shopping centre are mapped as “generally not suitable” by the Koala State Planning Regulatory policy and the negative result of scat surveys suggests low use of the site by koala. Mr Moffitt also pointed out, and Dr Watson appeared to accept that the proposed carpark will be a low-speed environment where the threat of vehicle strike is low and the landscaping can be designed to create a passage for koala movement. In the circumstances, whilst the site does provide Koala Habitat and would likely be used by koala from time to time and the proposal would have a detrimental effect, rather than ‘protect and enhance’ to meet a net gain, I accept that the loss of the site is unlikely to significantly affect the long term retention of the koala population.

In relation to impact on native fauna and flora (DEO1(a)(ii)), Mr Moffitt considered that the proposed development would cause only a very minor impact on threatened species and that species predominantly affected by the proposal would be urban inhabitants that are common in the urban and peri-urban landscapes of the locality. The provision however extends to species of native fauna and flora that range from internationally to locally significant and threatened to common species. Mr Moffitt acknowledges conflict.

Insofar as the protection and enhancement of a locally significant patch of bushland is concerned (DEO1(a)(i)(f)), Mr Moffitt acknowledged that the site contains trees that, in context, could be considered of local significance, but considered the degree of conflict to be minor because he saw the environmental values to be affected as being at a relatively low level of significance (i.e. a small patch of urban vegetation). In his testimony, he explained:[76]

“I would say that as far as local values, it’s got greenspace values, but it’s got nothing of particularly high ecological significance. There is nothing that stands out to me, like a – a threatened plant or threatened plant community or a particularly high fauna habitat values that would lead me to conclude that it’s anything more than a reasonably minor impact.”

[76]T2-10.

This is something of a theme of Mr Moffitt’s approach. He acknowledged that the site has values of ecological significance, that they are at least of local significance, and, in his view of moderate value,[77] but sees the loss of those values as creating nothing more than a minor conflict, because the site is not, in his view, of particularly high ecological significance or possessed of higher order values or performing an important corridor role. In relation to the latter, he drew attention to the location of the site as at the end of a habitat area without connection beyond its western edge.
[77]Exhibit 9, para 93.

The DEO seeks relevantly to protect and enhance locally significant patches, corridors and mosaics of bushland that support wildlife throughout the city. Leaving to one side any debate about whether it serves an important corridor function, the subject land, as Dr Watson said, is vegetation at a local scale which supports a diversity of habitats and floral species which would be considered one of the locally significant patches and mosaic of bushland that supports wildlife throughout the city. That Mr Moffitt might consider its ecological value as no higher than moderate does not lead to the conclusion that its retention is unimportant or that its destruction results in only minor conflict.

It has already been noted that Mr Moffitt agreed, from an ecological perspective, with the designation of the site under the draft planning scheme. Under that draft scheme the purpose of the environmental significance overlay code is to avoid or minimise and mitigate significant impacts on matters of, amongst other things, local environmental significance. Further, the purpose of that code is said to be achieved by overall outcomes which include that impacts on matters of local environmental significance are minimised and mitigated. Mr Moffitt acknowledged conflict with the purpose of that code.

Dr Watson saw value in the vegetation on Lot 12. In his view, the value of a connected patch of bushland such as this should not be underestimated, particularly in a developed landscape. I accept that the site has value in its local context. I do not accept Mr Moffitt’s characterisation of it as being of low significance.

Dr Watson and Mr Moffitt addressed themselves to whether there was conflict with the Strategic Framework, but as noted earlier, the Strategic Framework does not have a role in development assessment under the Redlands Planning Scheme.

Unsurprisingly there was agreement that the proposal conflicts with the provisions in relation to the open space zone. There was disagreement about the extent of the conflict, but as Mr Moffitt acknowledged, the tree clearing and destruction of the site’s existing habitats brings the proposal into conflict with at least aspects of Overall Outcomes 4.16.7(2)(c) and (e) and Specific Outcomes 3.1, 4.3 and 5.2.

There was also agreement that the proposal conflicts with the overall outcomes for the Habitat Protection Overlay Code which are as follows:

“(a) to ensure uses and other development identify, protect and provide for the long-term management and enhancement of Environmental and Habitat Values;
(b) to ensure uses and other development are designed, sited and managed to protect Environmental and Habitat Values and achieve a net gain through enhancement plantings and offsets;
(c) to ensure the maximum retention of native vegetation through innovative design solutions of uses and development located in:
(i)        areas previously cleared of vegetation;
(ii)       areas not suitable for vegetation enhancement;
(iii)      areas of least environmental significance on the lot.
(d)to ensure uses and other development are designed and located at an appropriate scale and level of intensity to protect environmental and habitat values;
(e) the Outcomes for each of the following Habitat Categories is met:

Bushland Habitat
Outcome: The preservation and management and net gain of large mainland areas of the City where habitat values remain.
Action 1: Protect, maintain and improve the existing extent of remnant and non-remnant vegetation by preventing clearing or fragmentation of viable habitat areas and incorporating adequate buffers to prevent degradation from edge effects;
Action 2: Ensure enhancement plantings are undertaken as part of the development process.”

As Dr Watson pointed out, the nature of the proposal is such that it is simply not possible to comply with those outcomes. Mr Moffitt rightly accepted conflict but pointed to the reference to “net gain” in subparagraph (b) as envisioning the use of offsets (which are not proposed) and considered that the gravity of the conflict should be considered in light of the site’s local, rather than higher order significance.

The experts also similarly went on to find conflict with the provisions of the draft planning scheme in relation to ecological matters. As has been observed, the draft scheme does not take a markedly different approach and the substantive issues have already been discussed.

I am satisfied that the subject site does contain values of environmental significance. Those values have not been overtaken by events. Indeed, the growth and development of the vegetation has improved its qualities since it was set aside as park. The values are not insignificant, at least at a local level, and would be compromised in the event that the proposal were to proceed. I do not regard the conflicts, even putting the disputed ones to one side, as minor.

(ii) Buffer

The provision of a buffer between housing and the proposed shopping centre was one of the three roles[78] Mr Byrne identified the park as having since its inception. Mr Schomburgk agreed that the park forms a buffer between the detached shopping centre and the detached housing.[79] Mr Reynolds also referred to the site as providing a buffer separation by distance.[80]
[78]The other 2 being as environmental habitat and as open space.
[79]T4-16.
[80]Exhibit 7, para 58(a).

Leaving to one side the visual presentation of the buffer (discussed below) I accept Mr Byrne’s evidence that one of the impacts of the proposal for adjoining residents may be a much reduced sense of separation from the shopping centre, albeit that I accept that ‘hard’ amenity impacts of the proposal, such as noise and light can be ameliorated to a reasonable degree.

(iii) Visual character

The extent of vegetation in Lot 12 has been noted.[81] It includes trees well over 30m. The majority would be in the 20m to 25m range.[82] Mr Reynolds pointed to the roles of the site in forming a visual backdrop.[83]
[81]Exhibit 9, p 6, para 22. See also Watson, T2-23.
[82]Watson, T2-23 ll 28-39.
[83]Exhibit 7, para 58(a).

Mr Powell agreed that the vegetation, and its buffering effect has a certain attractiveness to it, and that the existing residents would enjoy the view of a heavily vegetated backdrop above their fence.[84]
[84]T-32 l 14, T1-49 ll 32-37.

Mr Schomburgk agreed that the park contributes to the character and amenity of the locality because it is a vegetated backdrop to the houses along Sycamore Parade.[85] The outlook that the residents on the southern side of the park enjoy is one of an attractive, shady band of trees.[86] Associated with that, he accepted that the residents used their backyards and appreciated the value of the amenity that the park and its vegetation provided them.[87] He accepted that the park presented a positive visual character.[88]
[85]T4-16 ll 25-27.
[86]T4-16 ll 38-39.
[87]T4-17 ll 1-9.
[88]T4-20 ll 1-5.

As Mr Reynolds confirmed from his inspections, from walking along the fence of the northern side of the allotment, it is a pleasant environment.[89] The lay witness evidence is to the same effect.[90]
[89]T4-41.
[90]Green, exhibit 20 para 10-11; Hopkins, exhibit 21 para 11.

The experts called by the appellant pointed to the landscaping proposed as part of the carpark. Indeed, in the joint planning report, Mr Schomburgk, while accepting that the park currently provides a visual buffer between the houses along Sycamore Parade and the shopping centre, opined that an “effective” buffer would be retained and enhanced by the landscaping proposed as part of the carpark. In contrast to the recommendations of Mr Powell who confessed that he lacked expertise in such matters, Mr Moffitt recommended a range of native species planted in 5L pots. He considered that they would be likely to achieve a height above the 2.4m acoustic fence in about 3 years with proper care,[91] and you “might get some to 3m”.[92] Dr Watson considered though that “that’s quite fast or optimistic growth”.[93]
[91]T2-10.
[92]T2-20 ll 16-27.
[93]T2-32 l 20.

The landscaped strip proposed along the southern boundary is dramatically different from the wide landscaped area full of substantial mature trees across rear fences of varying heights. As Mr Schomburgk ultimately accepted, it will result in a “very different look”[94] in which the visual screen will not be as dominant. [95] That is likely to be so even allowing for the landscape trees to mature over time.
[94]T4-17.
[95]T4-18.

(iv) Visual relief to built form

Associated with its attractiveness, and in addition to visual character, this strip of land provides visual relief to the built form, particularly that of the shopping centre and its unattractive “back of house”. Mr Schomburgk agreed that was the case.[96] That is an identified function of land within the zone.[97] The vegetation in Lot 12 is a significant marker in the urban fabric between residential and commercial development for the local residents. That is one of the functions of open space intended by the Planning Scheme, and from first principles.[98]
[96]T4-16 ll 31-33.
[97]Exhibit 5, p 61, s.4.16.7(2)(d)(i)(c).
[98]Reynolds, T4-41 ll 38-42.

(v) Recreation

The site has 5 points of community access, both formal and informal. The only formal entry point is that via Teak Lane. It provides a pedestrian path which crosses the park to a gateway into the shopping centre (i.e. the second access). It is also possible to enter from the west across the Energex land. A fourth point of access is from Sycamore Parade Park to the east. The fifth access is an informal path connection at the south-eastern corner of the centre.[99] Through maintenance and community use, informal paths exist adjacent to the southern boundary, near the residents’ fences, and close to the eastern boundary from the neighbourhood park to the centre.[100]
[99]Exhibit 20, pp 9-10, paras 29-33.
[100]Exhibit 10, p 11, para 38.

The size and shape of the park and its vegetation does not lend the site to sporting pursuits or other active (“kick and throw”) type recreation. The linear shape of the site does however provide a walking connection between Sycamore Parade Park and Teak Lane, which people may find more pleasant than walking along the road.[101] It also provides people in the neighbourhood with passive recreational opportunities of observing, or even just experiencing, the natural environment of the park.[102] There is evidence of passive recreational activity in the reserve including from the lay witnesses.[103] Mr Schomburgk, Mr Reynolds, Mr Byrne, Mr Alston and Mr Powell all accepted and had observed legitimate users of the park such as people walking through it.[104]
[101]Exhibit 10, para 172.
[102]Exhibit 10, para 190.
[103]Green, exhibit 20, para 12; Hopkins exhibit 20, para 13, exhibit 21, para 10.
[104]T4-35, T4-41, T1-32, T3-15.

That use should be seen in the context of the CPTED deficiencies of the site. Mr Alston expressed the concern that if the general public are not safe or do not have confidence in their safety or their children’s safety then they will not use the land and it will become the sole domain of those undertaking anti-social behaviour.[105] Notwithstanding these deficiencies with the site and the lack of formal walking tracks within the space (apart from the Teak Lane access) however, it is evident that there continues to be a level of legitimate daytime use of the open space.
[105]Exhibit 11, para 38.

Social impact

Mr Powell was engaged by the appellant to provide a social impact assessment. Mr Powell has no planning qualifications. He holds a Bachelor of Arts. Having formed the view that the characteristics of the site make it a high risk location for anti-social behaviour and public safety issues to continue, he concluded that, whatever amenity benefits are provided by a “narrow wooded strip of land located between 14 residential backyards and the shopping centre” are overridden by broader considerations of negative amenity and public safety risk.

As was revealed in cross-examination however, his work was less than thorough and I did not give his evidence much weight. As an example, and perhaps most surprisingly, when asked whether he had seen the submissions lodged in response to the development application, his response was “I’ve seen a couple. I don’t recall reading every submission that was made at the time”. He could not recall whether the couple he had read were supportive or not.[106] Instead his approach was that “I try to give voice to…the broader community, which in some respects is…voiceless” in undertaking his balancing exercise.[107]
[106]T1-40.
[107]T1-40.

Mr Powell’s methodology identified that he had conducted interviews with key stakeholders. This was however, limited to centre management and a council safety officer some 18 months prior. He said he relied on media coverage for the views of neighbours. He also relied on media coverage to suggest complaints about safety issues but cross-examination revealed that to refer to the Redlands area generally.[108]
[108]T1-45.

Mr Powell had not concerned himself with where past issues had occurred within the site. Indeed he was unaware that there had been issues associated with the Teak Lane pathway.[109]
[109]T1-48.

Ultimately he saw the social impact issue as a trade-off between the risks of anti-social behaviour associated with leaving the park in its current form and the visual and acoustic benefits which it provides to the residents. He endeavoured to carry out an assessment of the visual amenity implications of the proposal, but was not qualified to do so.[110]
[110]He is not a visual amenity expert (see T1-54), or an expert in trees or their growth rates (see T1-55).

Social impacts were also considered by Mr Byrne in the Open Space, CPTED and Urban Design joint report. He fairly acknowledged that some, especially those focussed on the shopping centre and its management and care of the retail precinct may take a positive view of the so called ‘permanent solution’ to the ‘unmanaged risk’ posed by Lot 12. On the other hand, he considered that there would be others who would perceive the changes as negatively affecting their amenity. In his view, the physical changes to Lot 12 would likely bear upon their sense of amenity with the most intense impact probably felt by the immediately adjacent residents. Those impacts include matters considered elsewhere such as a reduced sense of separation from the shopping centre.

Noise and light

Issues of noise and light were examined by Mr King, who was engaged by the appellant.

In his initial statement of evidence, Mr King concluded that:

(a) the proposed development will not create a noise source which is uncharacteristic in the area;[111]
[111]Exhibit 14, p 6, para 17.

(b) the fact that noise from the existing centre is audible to nearby locations does not preclude approval of the proposed development. Compliance with noise standards is not reliant upon a use being inaudible. In the context of the existing noise environment the change associated with the proposed development is not significant;[112]

(c) the activity on lot 12, if the proposed development is approved, will be subject to supervision and control by the shopping centre owner. At present, lot 12 is an elongated, isolated strip of land that does not enjoy the benefit of any formal supervision on a regular basis.[113]

[112]Exhibit 14, p 8, para 26.

[113]Exhibit 14, p 8, para 26.

It was ultimately the conclusion of Mr King that the proposed development would not result in unacceptable amenity impacts from noise and lighting at adjacent residential uses. Mr King said that from an acoustic engineering perspective, the proposed development could be approved with reasonable and relevant conditions relating to noise and lighting.[114]
[114]Exhibit 14, p 9, para 31.

Mr King also prepared a supplementary statement of evidence.[115] That statement of evidence was directed towards responding to comments made by the two council lay witnesses, along with matters raised in the town planning joint report by Mr Reynolds.
[115]Exhibit 14, p 9.

The lay witness statement of Mr Hopkins raised concerns relating to acoustics and breezes. In response, Mr King was of the opinion that:

(a) a 2.4 metre high acoustic barrier could be constructed from suitable materials that appear residential in nature, such as overlapped timber palings;[116]
[116]Exhibit 14, p 3, para 9.

(b) in respect of breezes, it was his experience that a barrier of 2.4 metres in height is not a significant obstruction to ambient breeze flows;

(c) with the proposed noise barrier in place, noise from the existing shopping centre would in fact be reduced at residences in Sycamore Parade;[117]

(d) the 2.4 metre acoustic barrier would provide adequate control of noise from the carpark of the proposed development.[118]

[117]Exhibit 15, p 3.

[118]Exhibit 15, p 4, para 6.

Mr King also considered the statement made at paragraph 60(b) of the town planning joint report by Mr Reynolds.

In that paragraph, Mr Reynolds alleged that the proximity of traffic and lighting to residences, if the proposed development is approved, will have adverse amenity affects.

Mr King replied, based on his knowledge of the site and his experience, that the use of the proposed carpark with a 2.4 metre high acoustic barrier in place will not result in unacceptable amenity impacts at existing residences.[119] Similarly, in terms of lighting, it was the opinion of Mr King that lighting impacts could be managed to prevent light spill or glare to adjacent residences.[120]
[119]Exhibit 15, p 4, para 9.
[120]Exhibit 14, p 8, para 27.

I accept Mr King’s evidence and am satisfied that the noise and lighting impacts of the proposal would not be unacceptable.

Traffic

The traffic issues in the appeal were effectively resolved. On 21 August 2017, the traffic experts completed a supplementary joint report which considered the amended plan of development.[121] The position of both experts in the joint report was that there are no grounds for the proposed development to be refused for traffic engineering reasons.[122]
[121]Exhibit 28.
[122]Exhibit 28, p 2, para 11.

The experts did however recommend that should the proposed development be approved, conditions should be imposed that make provision for a number of small matters.

IVL accepts the recommendations of the experts. Should the proposed development be approved, IVL accepts that the conditions agreed to by the experts should be imposed.

Historical conditions

The Council alleges that the proposed development is inconsistent with the conditions and terms of the preliminary approval and the MCU approval. Particularly, the Council alleges that:[123]
[123]Exhibit 22, p 13.

(a) the proposed development is not consistent with condition 2 of the existing preliminary approval as amended by subsequent order made by the Court on 12 December 2006 which required the dedication of Lot 12 for community purpose (park); and

(b) the proposed development would necessarily result in non-compliance with the terms of the existing development permit.

Condition 2 of the preliminary approval provides:[124]
“The area of land designated “Conservation Area” shall be dedicated to the Crown/State for Community Purposes (Parks) free of cost with Redland Shire Council as trustee. This action shall occur prior to commencement of any works on site or no later than 12 months of the date of this approval, whichever is the earlier.”
[124]Exhibit 19, p 29.
IVL acknowledges that approval of the proposed development may be inconsistent with the terms of condition 2 of the preliminary approval and also that approval of the proposed development would necessarily result in non-compliance with the terms of the existing development permit.

IVL accepts that should it be successful in this appeal, it will be necessary for it to apply for a permissible change to both the preliminary approval and the MCU approval. It was common ground that this does not prevent this court from considering this appeal.

Conflict and grounds

As was observed at the outset, this is a ‘grounds case’. The proposal sits in clear and significant conflict with the planning scheme. Key to the grounds said to justify a decision to approve the development application is the public interest in closing a small park, in an area where there is otherwise adequate sporting and recreational open space and where the park in question has CPTED deficiencies and ongoing anti-social behaviour issues.

The proposal to do so however not only squarely conflicts with the planning scheme and runs counter to reasonable expectations concerning development, but would result in the destruction of a park which, notwithstanding its CPTED deficiencies, continues to serve useful functions. It does so not only in providing a level of legitimate informal daytime recreational use, but in providing a buffer to the shopping centre, which provides physical separation, visual relief and attractive visual character and amenity. Further, the park, even on the evidence of the appellant’s own ecologist, has ecological values of local significance which would effectively be lost, without offset, as a result of the proposal. Those values would be compromised in order to develop an extension to a shopping centre carpark which:
(i) is not otherwise needed, and
(ii) would have its own significant CPTED deficiencies, whilst retaining the Teak Lane connection.
As to the specific grounds relied upon by the appellant, as set out in exhibit 22:

1. It is asserted that there is a community and planning need for the proposed development. There is no established need for the carpark. I have rejected the argument that the prospect that an expansion of the carpark might one day allow for a public expansion of the shopping centre establishes a present need to expand the boundaries of the land given over to centre activities. Otherwise the need comes back to the extent of the community need to address the CPTED and anti-social behaviour issues with the park.

2. It is contended that the proposed development will lead to improved amenity and CPTED outcomes, remove or reduce criminal activity, vandalism and anti-social behaviour and improve lighting outcomes for the land. The CPTED issues have been discussed. For the reasons which have been given, the proposal, whilst having some advantages, has its own significant CPTED problems and proposes to replace a CPTED deficient park with a CPTED deficient carpark in the context of a maintained Teak Lane access. Further, notwithstanding the CPTED deficiencies, the park continues to serve functions of value and to provide aspects of positive amenity.

3. It is said that, in pursuing the development, the appellant acted in good faith and relied upon actions of the Council and the State Government leading up to it entering into a contract to purchase the land and making the development application. It was submitted that there is a public interest in the decisions of local governments being consistent, accountable, transparent and merit based. It was pointed out, for the Council, that the appellant’s contract is conditional (it has not actually acquired the land) and that the Council’s change of view is understandable in the context of a change in the make up of the Council and the expression of community opposition to the proposal. In any event, the role of this court is to carry out a rehearing on the merits on the basis of the evidence called before it.

4. It was contended that the zoning and designation of the land under the planning instrument is not soundly based and has been overtaken by events. That has not been found to be the case. The site has environmental attributes consistent with its designation. It is deficient in CPTED terms, which has contributed to a history of anti-social behaviour and Mr Reynolds was prepared to concede that, if things were being done again there is a chance that they would be done in a different way,[125] but Lot 12 still serves functions of relevance to its zoning.
[125]T4-53.

5. It was contended that the land has no relevant environmental or social values or no such value worth preserving in the public interest. For the reasons discussed, I do not accept that.

6. I accept that the locality is well served by alternate open space areas for active and passive recreation, but that does not necessarily warrant the loss of the subject site. There are also other areas which provide habitat, but the site has environmental values of local significance.

7. It is said that the shape and location of the site is such that it cannot reasonably be development for purposeful recreation or environmental activities. I accept that the site is not suitable for sporting activities or more active recreation (“kick and throw” type activities), but it continues to be used for a level of legitimate recreational use and it has environmental value.

8. (a) It is asserted that the proposal is consistent with the current and future planned character of the area. Mr Schomburgk explained that by reference to the character of the carparks in the shopping centre, but the current and planned future character of the area feature Lot 12 as open space.

(b) It is said that the proposal is logical and efficient infill development, but that assumes that the site is available for infill development and ought not be retained as a park.

(c), (d) and (f) relate to amenity and social impact or benefits, which have already been dealt with.

(e) relates to the argument that the proposal will facilitate the planning outcomes of the SEQRP on the basis that providing carparks which are not needed now might one day enable future expansion of the shopping centre which is not currently planned. That is not a ground which justifies currently expanding the land which the planning instrument has identified for centre activities.

On balance I find myself short of being persuaded that the grounds are sufficient to warrant a decision to approve the development application in the face of the clear and significant conflict with the planning scheme.

Conclusion

For the reasons given, the appeal is dismissed.

CITATION:	IVL Group Pty Ltd & Anor v Redland City Council [2017] QPEC 73
PARTIES:	IVL GROUP PTY LTD AND LANREX PTY LTD (appellants) v REDLAND CITY COUNCIL (respondent)
FILE NO/S:	4807 of 2016
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	23 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	21, 22, 23, 24, 25 August 2017 with further written submission received to 5 September 2017.
JUDGE:	Rackemann DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – applicant appeal against refusal of development application for a material change of use to facilitate the conversion of a public park into the extension of a carpark for an adjacent shopping centre – where park had been dedicated as a condition of the shopping centre approval and separated the shopping centre from residential properties – where park had deficient CPTED design and a history of anti-social behaviour which led the Council to encourage the applicant to enter into a conditional contract to purchase the park and to make the development application – where, in the context of local opposition and a change in council, the council subsequently refused the development application – where significant conflict admitted – whether sufficient grounds – reasonable expectations – extent of CPTED deficiencies and associated behavioural issues – where adequate open space otherwise – where park has values of environmental significance – where notwithstanding its CPTED deficiencies it serve functions of relevance – where proposed carpark would have its own CPTED issues – where no need otherwise for proposed carpark – where grounds not sufficient to warrant a decision to approve.
COUNSEL:	C L Hughes QC with M J Batty for the appellants B D Job for the respondent
SOLICITORS:	Keir Steele Lawyers for the appellants Corrs Chambers Westgarth for the respondent