Jefflane Pty Ltd v Brisbane City Council
[2002] QPEC 45
•8 August 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Jefflane Pty Ltd v Brisbane City Council [2002] QPEC 045
PARTIES:
JEFFLANE PTY LTD
(ACN 010 324 660)
Applicantand
BRISBANE CITY COUNCIL
RespondentFILE NO/S:
1695 of 2002
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
8 August 2002
DELIVERED AT:
Brisbane
HEARING DATE:
25, 26 July 2002
JUDGE:
Robin QC
ORDER:
Application dismissed
CATCHWORDS:
Application for declaration that development application was code assessable – whether public notification was required under Local Government (Planning and Environment) Act 1990 - categorisation under Particular Development Zone of 1987 Town Plan – qualifications attaching to acceptable purposes in issue – whether proposed development “in accordance with” or “generally in accordance with” identified plans and hence “permitted development” – architectural evidence that external treatment was a significant design change – proposed buildings held not to complement heritage listed buildings as intended by planning instruments.
Local Government (Planning and Environment) Act 1990 – s1.4, s4.3
Integrated Planning Act 1997 – s3.2.5(3), s4.1.21, s4.1.22, s6.1.28
Jefflane Pty Ltd v Brisbane City Council [2002] QPELR 81
Grace Bros Pty Ltd v Willoughby Municipal Council (1984) 44 LGRA 400
R v The Justices of the County of London (1889) 24 QBD 341COUNSEL:
Mr M. Hinson SC for the applicant
Mr P. Lyons QC for the respondent
SOLICITORS:
Kinneally Miley for the applicant
Brisbane City Legal Practice for the respondent
Jefflane’s application is for:
“(a)A declaration that the application made by the Applicant to the Respondent on 21 November 2001 in respect of Lot 3 on RP 8-9878 and Lot 6 on RP 826295 is code assessable;
(b)A declaration that the Respondent should, under s. 3.2.3(2) of the Integrated Planning Act 1997, have given the Applicant an acknowledgement notice stating that the development applied for requires code assessment.
(c)An order that the acknowledgement notice given by the Respondent to the Applicant on 27 March 2002 be set aside;
and
(d)An order directing the Respondent to give the Applicant an acknowledgement notice stating that the development applied for requires code assessment.”
The applicant’s site is an important one in the City of Brisbane. It includes other parcels than those identified; it lies on the eastern side of Petrie Terrace which skirts the Central Business District to the west and is relatively elevated. Facing Petrie Terrace are well-recognized buildings of heritage significance, namely the former Police Barracks (constructed in the 1930’s) and associated “stables” which have in recent times been used for other purposes, notably the Underground nightclub. Behind those structures on the lots referred to in the application, but principally on Lot 3, as the other is used for access purposes, Jefflane has applied to the respondent Council on 21 November 2001 in a Form 1 IDAS Development Application for a Preliminary Approval and Development Permit for an apartment building and carpark. The application included a request that the proposal be assessed against the Superseded Planning Scheme, being The Town Plan for the City of Brisbane in effect immediately before the coming into force of the Brisbane City Plan 2000. It described the subject land as identified in the Planning Scheme to come within Particular Development Zone 282 and Particular Development Zone 284. Only the latter was relevant on the appeal. The application acknowledged that referral co-ordination was triggered because “the subject site includes the second Brisbane Jail and is adjacent to the former Petrie Terrace Police Barracks, Victoria Barracks and Officer’s Quarters.”
The issue is whether the applicant company is correct in asserting that its development application requires code assessment, rather than impact assessment (as the Council contends).
By s. 6.1.28 of the Integrated Planning Act 1997 (IPA) the level of assessment required is dependent (where a Transitional Planning Scheme applies, as here) on whether, under the repealed Local Government (Planning and Environment) Act 1990, public notification was required or not; if it was not, the application is code assessable; otherwise, impact assessment is required. Under the IPA, code assessable applications do not require public notification, whereas those that are impact assessable do.
The Council indicated that if the court determined code assessment was appropriate, it would proceed accordingly, without any necessity for the court to go beyond making the first declaration sought, to make other orders “about” it: see ss. 4.1.21 and 4.1.22 of the IPA. It was common ground that Jefflane, as applicant, bore the onus of proof.
When it transmitted to the applicant its acknowledgement notice indicating that the application would be assessed using impact assessment procedures, the Council in accordance with s.3.2.5(3) of the IPA elected to proceed as Jefflane had requested and assess under the Superseded Planning Scheme.
Under s. 15.2 of the Town Plan, development in a Particular Development Zone is categorized as permitted, permissible or prohibited. Mr Hinson SC, who appeared for Jefflane, referred the court to s. 4.3 and definitions of “permitted use”, “permissible use” and “prohibited use” in s.1.4 of the repealed Act. An application for permitted development need not be publicly notified under that Act and would be code assessable under the IPA (s.6.1.28(3)(a)).
The applicant submits the development it applied for is permitted development under Column 2 in the Table of Development in s.15.2, arguing that it is development “for any other purposes or purposes with qualifications applicable to the particular zones.” Those purposes and the qualifications are set out in the zone description created under ss. 4.1.5(e) to (g) of the Superseded Planning Scheme. The relevant purposes are “apartment building” and “carpark” and there is no dispute that the development applied for comes within those categories. The issue in the application concerns the “qualifications”, some of which relate to carparking spaces, hours of operation and carpark use, gross floor area, and height and are not in issue. The qualification in issue requires development, if it is to be “permitted development”, to be “in accordance with ... Plan No. 566 SD 03”.
The Particular Development Legend for Particular Development (PD) Zone 284 is:
“Apartment building, business premises, child care centre, education establishment, garden centre having a gross floor area not exceeding seventy square metres, indoor sport and recreation having a gross floor area not exceeding 250 square metres, service industry, light industry having a gross floor area not exceeding 800 square metres, licensed club, place of assembly, public building, radio station, restaurants, shops where limited to ground storey of any building, veterinary surgery having gross floor area not exceeding seventy square metres, welfare premises, youth club and car park for not more than 295 vehicle spaces between the hours of 6 p.m. and 6 a.m. daily, where the planning unit for any development;
(A)has a total gross floor area not exceeding 13,210 square metres;
(B)does not contain any building of a height in excess of sixty metres above natural ground level;
(C)is in accordance with plan No. 566 SD 03; and
(D)....”
The best copy of Plan 566 SD 03 (hereafter SD 03) that the parties could obtain became Exhibit 2. It and some other plans referred to in the Legends for other PD’s, notably 282 and 283 refer to other plans in the series, which came about in the course of protracted consideration of the future of Jefflane’s land in Petrie Terrace involving it and the Council. The parties executed a Rezoning Deed dated 31 July 1990 which was varied by two Deeds of Variation both of 21 May 1993. The Rezoning Deed recorded the parties’ intention that Jefflane develop its land “generally in accordance with” nominated plans, including SD 03. See the Third Schedule Part I Item A and Second Schedule Paragraph 2(iv). In Jefflane Pty Ltd v Brisbane City Council [2002] QPELR 81, McLauchlan Q.C., D.C.J. determined that, for purposes such as the present, there is no difference in meaning between “in accordance with” and “generally in accordance with”. I accept that proposition, which Mr Hinson sought to support by adding a reference to R v The Justices of the County of London (1889) 24 QBD 341. At 345, Matthew J said that when the matter went back to the Justices:
“…they may consider the provision that the building is to be ‘in accordance with the plans’, to mean, ‘in substantial accordance’ with the plans. Departure from the plans will not divest the Justices of their power to sanction so long as the building is substantially that which was originally proposed to be erected.”
In the application determined by Judge McLauchlan Q.C., the issue was the one which concerns me, but in a different factual context. His Honour determined that an application for development approval for a commercial building on the same site required impact assessment. Parking issues were a complication not reflected here. The departure from Plan SD 03 which led to the outcome was relatively gross: the Plan called for the ground floor of the new building to be essentially open, affording views through it of the Police Barracks building in a context of provision of gardens and/or trees.
Mr Hinson’s written submission contains the following:
“The word ‘accordance’ means harmony, conformity, correspondence or consistency. It is not synonymous with ‘identity’ which means exact likeness. The expression ‘in accordance with’ does not require exact or precise replication in every respect. Whether or not a building is in accordance with or generally in accordance with a plan involves questions of fact and degree in which the whole of the building and the whole of the plan must be compared. see Mt Barker Properties Ltd v Mt Barker District Council (2001) 115 LGERA 190 at 204 [24]. A planning approval requiring that development be in accordance with or generally in accordance with a plan authorises work specified in the plan and immaterial variations: Lever Finance Ltd v Westminster London Borough Council [1971] 1 QB 222 at 230B-C. Materiality is to be judged by planning criteria, not by reference to architectural style criteria see Grace Bros Pty Ltd v Willoughby Municipal Council (1984) 44 LGRA 400 at 406, Firefast Pty Ltd v Gold Coast City Council [1999] QPELR 200 at 202D-E and Pine Mountain Court Pty Ltd v Valente [2000] QPELR 265 AT 266-267.”
The QPELR decisions apply Grace Bros, in which Wootten J. said at 406:
“The use of the words “generally in accordance with” are obviously intended to allow for some deviation from the drawings referred to in the interim development orders. The reasons for allowing some latitude are obvious. The significance of any particular deviation will depend on the criteria by which it is judged. In this case we are concerned with town planning. From that point of view it seems to me that the alterations required by condition (ix) are not such that the consent is to a development not generally in accordance with the relevant plans. The alterations required to the outlines of the building are minor. They have some impact on the internal space available but it is not, in my view, significant in the overall context of the development. Only the northeastern corner of the development is affected. I do not accept the plaintiff’s contention that the Myer delivery and despatch centre is a car parking structure. Even if it were, I would still not think that the consequential variations would take the consent outside of the orders.”
Mr Hinson’s submissions continued:
“9. In summary, the approach to be adopted in determining whether a proposed building is in accordance with or generally in accordance with a plan is:-
(a)to look at the whole of the building and the whole of the plan, and not to confine attention to individual elements in isolation from the whole of which they form part;
(b)to look at the substance of the matter not its mere form i.e. to look at similarities as well as dissimilarities or differences with a view to reaching an overall conclusion about whether the building (as a whole and not merely parts of it) is in accordance or generally in accordance with the plan (as a whole and not merely parts of it);
(c)to judge the materiality or immateriality of any differences by reference to relevant criteria being planning criteria.
10.In addition, it is important to bear in mind that Plan SD 03 is
conceptual in form, is not a complete representation of a building (it contains no north or west elevation) and has internal inconsistencies. It has been consistently recognised by the courts than there is a need for some flexibility in comparing an approved plan and a finally settled design: see Firefast at 202D, Grace Bros at 406 and Lever Finance at 230B-C; see also Buderim Private Hospital Pty Ltd v Maroochy Shire Councill [1996] QPELR 251 at 254A-B.
11. That such flexibility is desirable is reflected in this case in the
Council’s approval of an office building which is not an exact or precise replication of what is shown in Plan SD 03 but is a variation on that plan.”
I do not accept the submission that planning criteria supplant architectural criteria in the present circumstances, still less the suggestion thrown out that Jefflane ought to succeed because the only town planner to express a view, Mr Reynolds, was of the opinion that the building proposed was in accordance with Plan SD 03. Just as planners on occasions defer to others with relevant expertise, such as traffic or acoustic engineers, there may arise circumstances in which the considerations are truly architectural. The opinions offered by the applicant’s architect, Mr Biscoe, and the Council’s, Mr Kennedy, were highly relevant. In the end, I find those of Mr Kennedy the more cogent and demanding of acceptance. As it happened, those were strongly bolstered by Mr Parker, who is the architect responsible for Exhibit 2, perhaps more correctly for the more extensive plans referred to when Exhibit 2 was prepared.
We may never know why the Legend refers only to Plan SD 03. Mr Parker’s evidence was that other plans had been prepared. Be that as it may, ultimately, only one plan is mentioned in the Legend. The intent provisions for Particular Development Zones, it may be noted, include the following:
“These zones are intended to apply to lands on which only a particular type of development may be carried out, such development being usually set out in detail and required to meet specified criteria.”
Plan SD 03 shows the site divided into four zones, A, B, C (the one presently relevant) and D. The Police Barracks are located on A, the stables on B. Zone C and the balance of Zone A have a grid superimposed in the Plan, indicating with precision the location of the footprint of the building envisaged, and the site coverage. There are six floor plans. The ground floor plan shows only a lobby occupying about one-fifth of the footprint, and pillars supporting the construction above. All other floors are marked “office”, the first and second having their own plans, the former including in the middle of the eastern side of the building a “void” extending vertically the “open” space of the ground floor. Floors 3 to 9 have a common layout, adding a feature not present on lower floors of balconies protruding on north, south and east about the middle of the particular façade; these floors were referred to as the “shaft” of the building. Above them Floors 11 and 12 dispense with the protruding balconies but replace them with six balconies occupying “voids” in truncated corners of the “T” shaped building, creating “open” areas and a more “open” appearance for the building. The top floor, Floor 13, built on that effect with the balconies encroaching further into a space enclosed on lower floors. The architectural style was identified as “palazzo”, having a reference to Italian Renaissance buildings, “stretched” to take advantage of the greater number of storeys feasible, if not required, under modern conditions, the three elements of base, shaft and top being easily identified. A prominent cornice marks the transition from base to shaft. Apart from plans mentioned already, SD 03 contains a perspective showing the eastern and northern frontages, a south elevation and an east elevation. All are marked “not to scale” but the elevations show a building height of 60 metres from which dimensions may be scaled without too much trouble. Mr Biscoe described the drawing as “very schematic and sketchy in its presentation and minimal in detail (with) no notations on the drawing that define what the materials are ... no dimensions”.
Mr Parker was “the design architect and part of the team that produced” SD 03, the elevations on which he said were taken from further elevations. Asked (at p.54) whether this “schematic design drawing” represented the last word in the design of the building “down to ultimate detail” he said:
“The schematic design process is coming to with the initial concepts and developing those concepts into a form that’s an acceptable form for presentation, .. to client, council and others. It’s intended to indicate relatively comprehensively the form of the building both in plan and elevation.”
He confirmed 60 metres was the overall height of the building above ground level.
Mr Parker said (p. 65) with reference to the eastern elevation of Jefflane’s approved office building in particular (the comment would apply equally to the proposed accommodation building):
“It’s not the same solid base that I was considering reflecting part of the character of the Barracks building”.
At page 57 Mr Parker identified Plan SD 03 as “a compilation of a series of plans which were considered appropriate – because of the requirement to provide a drawing for the PD approval ... a compilation of a series of drawings that were considered most appropriate to depict the proposed building design.” His view of the glazed curtain wall proposed is that it was “not consistent with SD 03”. He identified the size of the windows he had depicted in the base as 1200 millimetres square, likewise the windows in the shaft adjoining the corners as 1200 millimetres square, with other windows in the shaft 1800 millimetres square. In the approved commercial building, the windows were enlarged; in the accommodation building they are enlarged further, to 1950 millimetres square for all windows in the shaft and top; the windows proposed to be visible in the base, being those not replaced by the curtain wall, are elongated vertically. The amount of glass in the building has increased enormously, depriving it of the original effect of being a substantial masonry structure, particularly at all corners. Further, a lot of the windows are proposed to be openable. Mr Parker considered that a treatment of the building in which one might have a number of openings at random places in various parts of the facade was a significant change in the design. (62-63)
Ordinarily, the court ought not to become the arbiter of architectural taste or pronounce against a building because it is considered, from an academic kind of standpoint, a less than optimum adaptation of the palazzo or some other style to a modern building. Of course, there might be special cases, in which the relevant planning instruments were so prescriptive and detailed that there was no room even for argument that a proposed building accorded with a particular plan. This is not such a case.
Mr Lyons’ written submissions contain the following in relation to this topic:
“23. There are a number of changes proposed in the Applicant’s residential development, which are apparent when comparing it with Plan SD 03. Those which are uncontroversial, may be summarised as follows:-
(a) the introduction of a glass curtain wall on the eastern elevation of the base (see Kennedy, Exhibit 7, Figs. 4A and 4B)
(b) introduction of larger windows at the eastern end of the northern and southern elevations of the base (see Kennedy, Exhibit 7, Fig. 5A, lower right corner and Fig. 6A, lower left corner of elevation)
(c) elongation of the balance of the small windows in the base of the building (see for example Kennedy, Exhibit 7, Figs. 5A and 5B)
(d) reduction in prominence of the cornice above the base (apparent in Kennedy, Exhibit 7, Figs. 4A and 4B)
(e) increase in size of windows at the corners of the building on floors 3-9 (see Kennedy, Exhibit 7, Figs. 8 A and 8B)
(f) introduction of a glass curtain wall on southern elevation, surrounding the balconies (see Kennedy, Exhibit 7, Figs. 8A and 8B)
(g) reduction in height of the building, without a proportional reduction in its other dimensions.
24. In addition, the proposal includes balconies in many places not indicated in Plan SD 03. On their outer edge, sliding glass panels are proposed (within the facade of the building). Further, Mr Kennedy infers from Plan SD 03 that on the western facade, in the central section of the building, there would be no significant provision of windows. That is in contrast with the proposed western elevation of the residential development. (see Kennedy, Exhibit 7, Fig. 9)
25. The site is an important site. It is located in a heritage area, being adjacent to the Police Barracks at Petrie Terrace, It is in close proximity to the CBD, and is somewhat more elevated, so that it will be visible from many parts of the CBD. It is also adjacent to busy roads, which add to its importance.
26. Under the 1987 Town Plan, the Particular Development zone was intended to apply to lands on which the development could be ‘set out in detail and required to meet specified criteria’.
27. In the circumstances, it is not surprising that the zoning made quite specific provision for the appearance of the building. Mr Kennedy is right to say the changes are significant. The base will provide a less neutral and passive element to viewscapes which include the adjoining heritage buildings. The design of the building identified in Plan SD 03 required that the structure clearly distinguish the base, shaft and top of the building. This has been significantly eroded. While the use of colours might for a time offset this, that is not what the drawing called for. The building has also lost some of its elegance and is more squat because of the reduction in height.
28. Plan SD 03 carefully identified the locations of balconies, showing their effect in the elevations and perspective. They presented an orderly appearance to people looking at the building. Otherwise, the facades of the building were generally uninterrupted. The proposed development introduces a multitude of balconies, adjacent to living rooms and bedrooms, with openable glazing. (see Exhibit 4, pp.2. 3 and 10) These will tend to introduce punctuations or voids in the facades, not intended by Plan SD 03 (An appreciation of their effect is assisted by the photographs which became exhibit 11). Mr Kennedy said that this change would have a major impact. It is submitted that he is correct.
29. It is no answer to say that Plan SD 03 represents a commercial building, whereas the zone description identifies an apartment building as a permitted use, subject to qualifications. One of the qualifications is compliance with Plan SD 03. The form of apartment building which is permitted development is one which complies with Plan SD 03 and accordingly which has the features which that drawing shows. Under the 1987 Town Plan, a proposed residential development which differed from Plan SD 03 required impact assessment.”
I find myself in agreement with those submissions, except in minor respects. As to paragraph 24, whether or not one agrees with Mr Kennedy’s inference, Plan SD 03 showed no western elevation or facade, so that the drawing of inferences is somewhat problematic. The court, in my view, is not entitled to reject the western facade, except insofar as its rejection of larger windows than SD 03 contemplates, particularly around corners, and in the base, necessarily follows from the way in which the northern, eastern and southern elevations are judged.
Nor should the court, apropos Paragraph 27, too readily condemn the proposal because the building now proposed is “more squat”. The explanation of the reduction in height is that residential use, doubtless for economic reasons, is regarded as calling for lower ceiling heights than a commercial use; some eight metres of the 60 metres proposed are to be lost. Notwithstanding that, as I understand it, under City Plan 2000, the maximum height ordinarily permitted on the site might be even less than that of the residential building proposed, its squatness caused unhappiness to a number of witnesses. It seems to me that the same dissatisfaction might not be felt when one contemplates what the view of the building might be from some distance away, for example, from the Victoria Bridge. Mr Biscoe’s interesting computer simulations of views from various locations persuaded me of that. In my view, the court ought not to reject the building on the basis of an opinion that it is “less elegant” than something else. As a general rule I would interpret a specified height as a maximum, rather than a minimum, and not regard a building as non-compliant merely for failing to reach the maximum.
Otherwise, I am in agreement with Mr Lyons’ submissions. I consider that the building now proposed will not serve to complement the heritage listed buildings in the location in the way the relevant planning instruments intend. In SD 03 the barracks and stables are specifically depicted on the site plan, perspective and elevations. What is proposed is not, in my view, “in accordance with” or “generally in accordance with” SD 03. It follows that the advantage of code assessment, which “accordance” would have justified, is not available to the applicant.
The above conclusion is not affected by the applicant’s ability to point to “apartment building” being permitted development. While Mr Parker was clear that the design encapsulated in SD 03 was not for an apartment building, and that he would have designed differently for a development of that kind, as to floor layouts, and perhaps shape (55), upon my assessment of the evidence, there was no reason why an apartment building could not be designed that was in accordance with Plan SD 03. In particular, it was not suggested that there was any necessity for a residential building to incorporate the vastly increased glazing. (It may well be that marketing of the project would be assisted by the increased window size, but that seems to me not a planning consideration the court ought to give effect to in an application such as this.)
Following Judge McLauchlan’s decision, the applicant obtained the Council’s approval (on a code assessment basis) of an office building for the site. This occurred in November 2001. (Exhibit 1 records the Queensland Heritage Council’s approval (on conditions) of the office building.) Jefflane submits that approval has a double significance, firstly illustrating the acceptability (to the Council) of a certain amount of variation from the building depicted in Plan SD 03, secondly as representing a development which it is lawfully entitled to carry out. This is argued to be relevant in the sense of indicating what Jefflane might reasonably expect now.
I agree with Mr Lyons’ submission that the November 2001 approval of an office building is no justification for determination that the residential proposal is code assessable. He identified a number of respects in which the two proposals differed:
“......
(a)the window treatment in the glass curtain wall on the eastern facade appears to be different (see Bewley, Exhibit DB1, p.119);
(b)there is a differentiation in the size of the windows on the corner of the building, between floor 9 and the floors above (see the elevations in Bewley, Exhibit DB1, pp.117-119);
(c)in the residential proposal, the height of the building has been reduced;
(d)openable glazing adjacent to internal balconies would not be expected in the commercial development;
(e)the treatment of the western façade is obviously different.”
The differentiation in window sizes involves more glazing in the residential proposal. It is enough to say that, in my view, (b), (d) and (e) preclude Jefflane’s making the use sought to be made of the November 2001 approval. The most significant of the differences is, I think, (e). In the office building, the western facade, which will form the backdrop against which the heritage listed Police Barracks building will be seen, was very plain. In particular, in the shaft, rising above the base, whose scale was such as to replicate the Barracks building, was, in its central portion, essentially masonry, with small diamond shaped features (apparently mirroring decoration in the Barracks building) which, if they were windows, would have served to admit a small amount of light into services areas in the office building; in the apartment building proposal, as is customary, services are relocated to the interior, the tiny diamonds are replaced by large amounts of glazing, consistently with proposals for the other elevations of the building, and, perhaps, common ideas of what a well fenestrated residential building usually would have. In my opinion, this western elevation is dramatically different from that of the approved office building, just as it is dramatically different from the elevations (not including the western, of course) depicted in SD 03.
The application is dismissed.
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