Jones v Redcliffe City Council
[2003] QPEC 61
•13 November 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Jones v Redcliffe City Council and Anor [2003] QPEC 061
PARTIES:
ANDREW JONES
Appellant
v
REDCLIFFE CITY COUNCIL
Respondent
And
PANTEX PTY LTD
Co-RespondentFILE NO:
BD 385 of 2003
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
13 November 2003
DELIVERED AT:
Brisbane
HEARING DATE:
30 September 1, 2, 3, October 2003
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed.
CATCHWORDS:
Appeal by adverse submitter – site within Precinct 1 (Administration, Education and Community Facilities) pursuant to Redcliffe Village and Seaside Development Control Plan – private developer purchased site from Queensland Government – site an Heritage listed property (Former Redcliffe Town Council Chambers) – Heritage Council “approved” proposal including 12 storey tower (Multiple Dwelling, Function Room and refreshment service)– proposal conflicts with DCP by reason of commercial and residential uses, height of tower, but is conformable with adjoining Precinct 2a requirements – planning arrangements “overtaken by events” – proposal preserves heritage building – relevance of steps taken by Council towards changing planning scheme requirements which favoured proposal.
COUNSEL:
Appellant – in person
Mr M Rackemann – Respondent
Mr C Hughes SC – Co-Respondent
SOLICITORS:
Appellant – Self represented
MacDonnells – Respondent
Connor O’Meara – Co-respondent
[1] The issue in this appeal is whether there are “sufficient planning grounds” to justify approving the co-respondent’s development application notwithstanding admitted conflict with the provision of the respondent Council’s Development Control Plan for Redcliffe Seaside Village, which forms part of the Consolidated Planning Scheme for the City of Redcliffe and was approved by the Governor-in-Council as recently as 26 August 1999. Redcliffe has a Transitional Planning Scheme as referred to in s 6.1.28 of the Integrated Planning Act 1997 (IPA). Public advertising of the new IPA Scheme is imminent; but s 6.1.29 of the IPA provides that rather than that Act’s provisions applying to the IDAS development application made on 27 August 2002 it must be assessed by reference to relevant matters stated in s 4.4(3) of the Local Government (Planning and Environment Act) 1990 (P&E Act); s 6.1.30 of the IPA renders applicable the provisions of s 4.4(5) and (5A) of the 1990 Act, as Mr Hughes SC, for the co-respondent, identified; their language is replicated in s 4.13(5) and (5A).
[2] Mr Jones brings an adverse submitter appeal under s 4.1.28 of the IPA. Notwithstanding that the Council approved the development application, it is for the co-respondent developer to establish that the appeal should be dismissed, not for Mr Jones to establish that it should be allowed: IPA s 4.1.50(2). The DCP applies to the original Town Centre of Redcliffe, located adjacent to Moreton Bay. The Introduction to the DCP notes that the traditional Town Centre’s role has diminished with increasing competition from other suburban centres, in particular Kippa-Ring. The vision is to develop Redcliffe Seaside Village “as a cosmopolitan tourist oriented Centre which will incorporate a diverse range of retail, commercial, administrative, recreational, cultural and residential facilities.” 1.0 outlines the purpose of the Plan as “to address the economic, visual, circulation and environmental issues facing the Centre” which were identified, inter alia, as “an increase in vacant shops, decline in visitor spending and a reduction in employment opportunities”.
[3] The Land Use Objectives listed in 1.4.1 are:
“i.To strengthen the tourist, civic, retail, administrative and commercial function of the Redcliffe Seaside Village and introduce integrated accommodation, recreational, cultural and entertainment services;
ii.To encourage the development of the Redcliffe Seaside Village as a cosmopolitan village with provision for outdoor dining, pedestrian plazas, arcades and forecourts in appropriate locations;
iii.To create a sustainable retail and commercial centre through the consolidation of these uses in appropriate locations;
iv.To promote higher population densities in the areas with access to public transport, retail and commercial activities;
v.To encourage the creation of a transitional mixed use Precinct comprising commercial, low impact local services and residential uses in streets adjoining the retail core;
vi.To encourage a diverse range of housing and accommodation choice for residents and visitors within the Redcliffe Seaside Village; and
vii.To prevent the intrusion of incompatible land uses in residential areas.”
[4] Implementation is by establishing a single Comprehensive Development zone with a number of supporting precincts:
“The precincts through their intent and guidelines will facilitate the control of development and provide a more flexible approach to both guide and assess development within the DCP area. Bonuses and incentives will also be used to promote the development of preferred land uses.”
[5] 1.7 Key Developments is:
“There are a number of key developments that are sought to be located within the Seaside Village to facilitate its development as a cosmopolitan centre. Bonuses and incentives may be awarded for the following developments in designated areas:
§ Composite buildings which permit retail/commercial development on the ground floor and accommodation on the higher levels;
§Conference facilities (Indoor entertainment);
§Public car park;
·Short-term Tourist Accommodation; and
§ Developments which incorporate pedestrian arcades and forecourts.
Part 4 of this document includes further information relating to bonuses offered for these developments.”
[6] There are four precincts, Precinct 1 - Administration, Education and Community Facilities, Precinct 2 – Retail, Tourism and Commercial Precincts, Precinct 3 – Residential Precincts, and Precinct 4 – Open Space and Foreshore Precinct. Precincts 2 and 3 are divided into Sub-Precincts, namely Precinct 2a – Retail and Tourist Facilities, Precinct 2b – Commercial Activity and Precinct 2c – Commercial and Local Services Frame, Precinct 3a – Medium Density Residential and Precinct 3b – High Density Residential and Mixed Uses. Precinct 2a lies inland from Recliffe Parade extending from one block south of Anzac Avenue to Humpybong Esplanade and may be seen as the commercial heart of Redcliffe. West of Sutton Street the precinct is 2b (then 2c west of Fischer Lane) and 2c south of Anzac Avenue. To the south of Precinct 2 between Redcliffe Parade and Sutton Street lies Precinct 3b, while Precinct 3a lies west of Hutchinson Street, with an additional large part of it west of Humpybong Creek. Precinct 3b contains the closest concentration of medium to high rise buildings in Recliffe: there are at least two existing buildings of nine storey residential units. Another such building is situated very close to the foreshore, east of Prince Edward Parade, which represents a continuation of Redcliffe Parade. This development, which may be replicated by another nine-storey building to the south if an existing approval is taken up, is located outside Redcliffe Seaside Village, which extends only as far north as Klingner Road.
[7] Precinct 1 accounts for the northern part of the DCP area, bounded by Klingner Road in the north, Oxley Avenue in the west, Downs Street in the south, Redcliffe Parade in the east and Humpybong Esplanade in the south-east, also it includes a small area south of and east of Humpygong Esplanade extending to Humpybong Creek to the point where it is piped under the road and under the “Coles Car Park” to Moreton Bay. Excised are a couple of parcels designated 3a. Precinct 1 includes the Redcliffe Court House, Police Station and Police residence, CWA Hall, a school, the new Redcliffe Council Chambers and Cultural Centre and surrounds which are partly used for parking at present. It also includes between the eastern end of Humpybong Esplanade and Irene Street the RSL Club and, north-west of it across Irene Street (more correctly the projection of it towards Moreton Bay, known as Bowling Green Lane) a Bowls Club with two rinks, on a large site leased by the RSL Club from the government. Immediately west of the Bowls Club a three-storey residential development is under construction.
The Site
[8] The site is 185 Redcliffe Parade. It contains 3,470m2. Its northern neighbour is the CWA Hall in Redcliffe Parade, behind which are police premises. Its western neighbour is the Bowls Club - its southern neighbour is the RSL Club, across Bowling Green Lane. Bowling Green Lane does not extend to Redcliffe Parade. According to the title search, exhibit 21, the RSL Club is the owner of the narrow parcel of land at the eastern end of Bowling Green Lane, which appears not be used for the moment. The claim of the RSL Club and the Bowls Club to inclusion in Precinct 1 lies in an arguably indulgent classification of them as community facilities. The claim of the site is based on the location there of the former Redcliffe Council Chambers. It is an example of the work of Sydney William Prior, who arrived in Australia from England in 1911 and studied at the Brisbane Centre Technical College before serving in World War 1, after which he established an architectural practice in Brisbane, following service with the Commonwealth government as a draftsman. A lay person might describe the building as Art Deco, but Mr Riddel, the co-respondent’s architect described it as – “mid-century functional style” (page 88).
[9] In the mid 1990s, the Council Chambers became the first (still the only) heritage listed building in Redcliffe. It was opened on 3 December 1941, following the Redcliffe Town Council’s resolution to erect new Council Chambers in July 1939. The Council moved again to new premises about 1972, Redcliffe in the meantime having become a City. The site was given into the control of the State Government Health Department for use as a Community Health Centre, this leading to considerable alterations inside. For cultural and historical reasons, the building has just claims to recognition and preservation, regardless of its merits (or lack of them) as architecture; both of its former uses support those claims. I note Mr Riddel’s opinion that the building is important for what it says about the Councillors’ view of Redcliffe, as a forward-looking town with an eye to the future, and wishing to acknowledge that in an important public building. As Mr Riddel says, that may invite favourable comparison with more traditional centres such as Brisbane, which preferred to look to the distant past for inspiration in its civic architecture. Unlike the Brisbane City Hall, the Redcliffe equivalent emphasises a style of building which suggests “speed”, being reminiscent, as Mr Riddel suggested, of a locomotive. Mr Riddel gives the following description:
“The former Redcliffe Town Council Chambers is a symmetrical single-storeyed white rendered masonry building with a two-storeyed entrance section. The main façade is curved with stopped parapets which conceal flat roofs. The building incorporates decorative relief shields, glass bricks and stained glass.
The exterior of the building is reasonably intact. Alterations have been made to the interior of the building to adapt it for its present use. The building has been extended at the rear.”
[10] The extensions have been removed, likewise another Council building immediately to the south of the Chambers, which was apparently used as a library.
The Development application
[11] The State Government determined that it no longer required the site and sold it to the co-respondent Pantex Pty Ltd in May or June 2000. Mr Ralph Warner is the principal of the company. It has two businesses, one of development and construction, the other manufacturing. Mr Warner was not among those wishing to see the old Council Chambers preserved. Indeed, Pantex applied to the Heritage Council for authority to demolish. Construction of a six-storey building, essentially if not wholly residential, was contemplated. The Heritage Council said no.
[12] Mr Warner took advice to engage an architect recognised and experienced in conservation architecture, and settled upon Mr Riddel. It was Mr Riddel who came up with the concept of a much taller building, 12 storeys, as part of a composite development which the Council decided to approve with conditions on 11 December 2002. The Development Application Decision Notice is dated 19 December 2002. There followed a Development Application Negotiated Decision Notice dated 9 January 2003, advising modification of some conditions and then Mr Andrew Jones’ Notice of Appeal filed 7 February 2003. The Negotiated Decision Notice advises approval of “the use of the land for purposes of Composite Building consisting of Multiple Dwelling (containing 87) dwelling units), Catering Service (Function Room) and Refreshment Service.”
[13] Mr Riddel’s concept is to provide at the front of the site adjoining the old Council Chambers a “twin” in the sense of a building similar in scale, which will be used for café–restaurant purposes, and incorporate outdoor eating at the very front of the site, where an important Moreton Bay fig is to be preserved. It might be noted that the old Town Hall is enhanced by its own fringe of established vegetation. Behind the two low rise buildings will be a 12 storey tower crossing the site. Mr Riddel has included various features, including the treatment of the roof, to “lighten” the building. There are to be three (formerly two) levels of “basement” parking and, at ground floor level in the tower, a swimming pool/gymnasium next to the commercial uses. There is considerable articulation proposed, and windows, which might otherwise cause glare, are to be recessed. Although Mr Riddel said he had eschewed references to the Council Chambers in the new structures designed by him (which he said would be frowned upon by the Burra Charter), I think there are features of the articulation of the tower, including suggestions visually of superimposed facades of increasing height and features at the front end of the new low rise building, such as some waist height concrete or block walls, which contribute to a pleasing harmony with the Council Chambers building. It is to have a new lease of life as a function centre. Mr Riddel has provided detailed plans and specifications (down to colour schemes) for its refurbishment, against which no adverse comment was forthcoming. Aesthetic judgments emanating from a court are likely to be problematic, but my inclination is to agree with Mr Riddel that a taller tower may represent a less dominating (and more sympathetic) backdrop for the heritage listed building than a squatter one. An analogy may be the “SGIO” Tower as a backdrop to the Uniting Church at the corner of Ann Street and Albert Street in Brisbane. See also Judge Skoien’s decision in Urban Properties Pty Ltd v Brisbane City Council [2003] OPEC031, in which the backdrop to the Customs House was considered, especially at [37] ff.
[14] To all appearances, the tower will present as a building on a back or side street, rather than one fronting Redcliffe Parade. Notwithstanding that the DCP envisages the tallest buildings at Redcliffe being closer to Moreton Bay rather than further back, I agree with Mr Riddel’s suggestion that there is planning merit in having higher development set back further. The constraints of this site, with the heritage listed building at the front, are such that the building of the tower cannot be at the front of the site, unless it goes where the café-restaurant is proposed, and presents as a tall, narrow building.
Significance of Heritage Council approval
[15] There was controversy as to whether or not the Queensland Heritage Council has approved the proposed new construction, as opposed to work to be done on the heritage building. The controversy must be resolved in favour of the co-respondent’s contention, given that the Heritage Council’s jurisdiction relates to the site, and not just to the relevant building, also the terms of its letter to Mr Warner of 29 October 2002:
“APPROVAL FOR WORKS TO HERITAGE LISTED PROPERTY UNDER SECTION 35(1) OF THE QUEENSLAND HERITAGE ACT 1992 ‘FORMER REDCLIFFE TOWN COUNCIL CHAMBERS, REDCLIFFE’
At its meeting of 17 October 2002, the Development Sub Committee of the Queensland Heritage Council resolved to approve the works at the Former Redcliffe Town Council Chambers, 185 Redcliffe Parade, Redcliffe comprising adaptive re-use of the Former Town Council Building and the construction of a 12 storey building in accordance with the following documents:
· Report for Application under S34 Queensland Heritage Act 1992, Former Redcliffe Town Council Chambers, August 2002.
· Drawings 02/8472/1A; RRA.01-09 inclusive.
Conditions:
1. This certificate is valid for two years from the date of issue.
2. That the Manager Planning, Southern Region, Environmental Protection Agency be informed when the works carried out within the terms of this certificate have been completed.
3. All works and variations to the works to be carried out to the satisfaction of the Manager Planning, Southern Region, Environmental Protection Agency.
4. Prior to works commencing, working drawings are to be submitted to the satisfaction of the Manger Planning, Southern Region, Environmental Protection Agency.”
[16] It must be assumed that if the Heritage Council considered there were any objections to the proposed tower from its perspective, those would have been expressed. It should be noted that Mr Riddel has been appointed to the Heritage Council by the Minister; this happened subsequently to its deliberations in respect of his design.
Admitted conflict with DCP
[17] That Pantex’s proposal conflicts with the DCP is conceded. There are conflicts in respect of the proposed use and the height of the building, having regard to the following provisions of the DCP:
“2.1.3 Table of Development
The following table of development complements the Precinct intent.
Table 3. Table of Development for Precinct 1.
| Column I | Column II | Column III | Column IV |
| Self (Permitted) | Development to Follow Code Assessable Process | Development to follow Impact Assessment Process | Development to (Development |
| Park Particular use | Business identification sign Community services Educational establishment Public car parking | Club Commercial Premises Indoor Entertainment Indoor Sport and Recreation Licensed club Outdoor Entertainment Professional Office Shop (where allied,complementary I, II and III developments) | Development for any purpose not otherwise identified in this Table |
”
2.1.4Development Principles
a. Height: Buildings: 3 storeys maximum
Structure: Performance based
New buildings within this Precinct are limited to a maximum height of three (3) storeys. In assessing the height of new structures the Council shall have regard to:
· the nature and character of the surrounding development;
· the size and dimensions of the site; and
· the number of roads to which the site has frontage and the function of the particular roads.
b. Plot Ratio
There are no plot ratio requirements for this Precinct.
c.Site coverage
There are no site coverage requirements for this Precinct.
d.Setbacks
Developments that have frontage to Oxley Avenue will have a minimum of six (6) metres. The scale of the development proposed, setbacks applicable for nearby development and the proposed building façade will determine setback requirements to other streets. Side and rear boundary distances for residential developments or the accommodation component of developments, are addressed in section 3.1 of this Plan.”
[18] There is also conflict with:
“2.1.1 Precinct Intent
Precinct 1 will become the government administration, educational and cultural focus for the Seaside Village. In order to encourage the consolidation of retail and commercial uses in Precinct 2, retail uses apart from those considered to be minor and ancillary to a preferred use and non-government commercial premises and professional offices, are unlikely to be supported within this Precinct.
2.1.2 Precinct Vision
In addition to the Precinct intent, the Precinct Vision provides a basis for the assessment of developments. The vision for Precinct 1 is based on the following:
i.Provision of an appropriate range of accessible community, cultural and recreational facilities which reflect the needs of the residents;
ii.Creation of a high quality streetscape through design, landscaping, signage, treatment of surfaces and the reinforcement of cultural and natural landmarks in accordance with the requirements in Part 3;
iii.Creation of boulevards of predominantly indigenous trees to further enhance the visual qualities of the Redcliffe Seaside Village;
iv.Development should be orientated towards the open space system where possible and pedestrian and bicycle linkages should be provided to the main activity nodes in other Precincts; and
v.Encourage pedestrian and cycling activity through the creation and maintenance of a safe and integrated pedestrian and bicycle network.
[19] While somewhat artificial scenarios can be devised in which privately owned land, as the site now is, might be used for Column II purposes, or Column III purposes - as to which the disfavour of “non-government” uses may be noted, and although Pantex, with full knowledge, purchased a Precinct 1 site (accepting the risk that it might find itself stuck with the Table of Development and Development Principles set out), I would adopt the approach that the DCP has been overtaken by events in this instance, specifically by the Government’s disposal of the site, as surplus to government requirements. There is not the slightest suggestion that the Council or any governmental or community body of any kind has the slightest interest in the site either as a developer or as lessee from Pantex. It is plain that the inclusion of the site in Precinct 1 followed from its history and its current use when the DCP was devised - the same comment applies to all the lands in the Precinct. There is nothing to indicate that thought was given to what the future of those lands might be. An assumption was made, quickly falsified by events, that then current or similar uses would be carried on there.
[20] It has long been part of planning law that zonings, designations, preferred dominant land uses and the like are subject to change. The steps to be taken are set out in legislation. When they are invoked, as they are, effectively, by this application for a Material Change of Use, examination is called for of the suitability of the site and the proposal for the new (actual or notional) precinct or zoning; here, that is 2a. While Precinct 1 is intended to encourage consolidation of retailing and commercial uses in Precinct 2, that appears to be an acknowledgment of what has happened historically; there is no corresponding indication in the Precinct 2 Intent that it should be proof against expansion:
“2.2.1 Precinct Intent
Precinct 2a will become the primary retail, cultural and tourist activity centre of the Seaside Village. The Precinct is intended to facilitate the establishment of tourist orientated services including convention facilities, cafes, restaurants, outdoor dining, speciality shops and accommodation units, which will also cater for the needs of local residents. Developments and services that emphasise the centre’s link with Moreton Bay and waterfront recreational activities will be encouraged. Opportunities also exist for small scale Commercial premises and Professional offices that are supplementary and complementary to the predominant retail, cultural and tourist function of this Precinct.”
“2.2.2 Precinct Vision
In addition to the Precinct intent, the Precinct Vision provides a basis for the assessment of developments. The vision for Precinct 2a is based on the following:
[21] The present proposal could hardly fit more neatly into the Precinct 2a Vision:
i.Establishment of the area as a major tourist precinct and cosmopolitan urban village through the expansion and strengthening of the cultural, recreational and retail facilities;
ii.Increase in number of people living within the Precinct to add to the vitality of the centre and provide a population base for local businesses through the development of Composite buildings. Composite buildings provide for a mixture of retail uses on the first two (2) storeys (eg Shops, Refreshment services, Catering services, Indoor entertainments and pedestrian facilities) and Tourist and/or Residential accommodation on the remaining storeys;
iv.Creation of a highly quality streetscape through design, colour, signage, treatment of surfaces and reinforcement of historical landmarks to create a sense of community and cultural identity;
v.Enhancement of the image and attraction of the Precinct through a high standard of design and landscaping in new developments in accordance with the provisions contained in Part 3;
vi.Land uses that include towers are to be subject to particular assessment including overshadowing, glare, wind turbulence and reflection and architectural design to minimise adverse impacts created by such buildings … .”
[22] The proposal is a “composite building” which constitutes a Column II Use if not exceeding six storeys, a Column III Use if not exceeding 12 storeys. Some restrictions not present in Precinct 1 are introduced, such as a base plot ratio for all developments within a Precinct without bonuses, of 3.0:1 (2.2.4(b)).
[23] Part 4 of the DCP deals with development bonuses and concessions. It commences:
“Part 4: Development Bonuses and Concessions
4.0-Introduction
In order to encourage the provision of certain facilities and developments in the Seaside Village, the Plan provides for the awarding of development bonuses in relation to car parking and plot ratios. Bonuses and concession are only relevant when the Council is satisfied that a proposed development is consistent with the intent of the Precinct and all relevant Council Policies and Codes including the Table of Development and strategies contained within this document. The granting of bonuses shall be entirely at the Council’s discretion and shall be determined upon the submission of the relevant development application.
4.1 Car Parking
Car parking requirements for Short-Term Tourist Accommodation, which is consistent with the requirements of Accommodation units outlined in the Planning Scheme [Part 5], may be reduced by a maximum of 40%. This bonus is subject to the submission of a traffic report to the Council as part of a development application for a Short-Term Tourist Accommodation which demonstrates that a reduction in the number of car parks provided will not have a detrimental impact on car parking facilities and circulation in the Seaside Village.
4.2Plot Ratios
A plot ratio is the ratio between the gross floor area of a building and the overall area of an allotment or allotments upon which the building is located. Bonuses relating to plot ratios may be achieved when:
· the use represents a key development;
· streetscape improvement works are conducted; and
· the development contributes to public facilities.
The requirements relating to these elements are outlined in the following Table:
“Table 13. Requirements for Bonus Elements.
Element Description Requirements
Amalgamation Council may grant a bonus in plot ratio where two (2) or more lots are amalgamated to create a minimum area of 1200 sqm. Pedestrian Facilities
(a) Pedestrian
Forecourt
Pedestrian forecourts are the part of a development between the front façade of a building and the road alignment. The pedestrian forecourt shall have minimum area of 200 sqm directly open to sunlight and shall be accessible to the public during hours as determined by the Council [refer to definition in Part 6 for diagram]. Forecourts shall have a landscaped garden and/or buffer along the property alignment Pedestrian Facilities
(b) Pedestrian
Arcade
An internal pedestrian arcade is to be open for use by the public during such hours as determined by the Council, and will have a minimum unobstructed width of 3.5 metres and at least two exist/entry points to a public road. The floor area of the arcade will not be included in the plot ratio calculations. Key Developments Key developments refer to those uses that have been identified in the intent of the Precincts as being preferred activities. There are a number of key developments that are sought to be located within the Seaside Village to facilitate its development as a cosmopolitan centre. Reductions in headworks and increases in plot ratio may be awarded for the following developments in designated areas:
· Short-Term Tourist Accommodation in all areas;
· Composite buildings which permit retail/commercial development on the ground floor and accommodation on the higher levels in Precincts 2a, 2b, 2c and 3b;
· Conference facilities (Indoor entertainment) in Precincts 2a and 2b;
· Public car park in Precinct 1, 2a or 2b; and
Developments which incorporate pedestrian arcades, forecourts and linkages in all Precincts generally in accordance with Map 9.
Streetscape
WorksDevelopment bonuses may be given for:
· landscaping works above those required by the Planning Scheme;
· street furniture (seating, outdoor dining facilities, rubbish bins, lighting, drinking fountains and bicycle racks);
· sculptures; and
· footpath upgrading.
In particular bonuses will be awarded for the provision of the above elements which are provided in accordance with the approved redesign plans for Redcliffe Parade developed by Terrain Pty Ltd.
Public Facilities The Council may approve increases in plot ratio where a development includes a specific public facility component in association with a particular development. Such public facilities include toilets and child-minding facilities etc. ”
Table 14. Plot Ratio Bonuses for Precinct 2a.
Base Plot Ratio without Bonuses Component of
DevelopmentBonus Plot
Ratio
Maximum
Plot Ratio with Bonuses
3.0:1
Amalgamation of blocks
Arcade
Key Developments
Pedestrian forecourts
Public Facilities
Streetscape Works0.4:1
0.8:1
0.8.1
0.8:1
0.3:1
0.4:15.4:1
”
[24] It is worth noting provisions in Part 5 of the DCP:
“Part 5: Strategies for the Council to Address the Vision
5.0Introduction
The Council has identified a number of strategies to assist in the development of the Redcliffe Seaside Village as a cosmopolitan tourist orientated centre with a diverse range of facilities. These strategies are applicable to all or a number of the Precincts and comprise a series of actions which should be implemented to achieve the plan’s vision.”
The Economic Development Strategy in 5.2 indicates that the Council should seek to, inter alia:
“4.Provide incentives and concessions for the development of high quality tourist accommodation and conference facilities;
5.Encourage the establishment of kiosks, cafes, outdoor dining areas and restaurants along the foreshore [Figure 5] to promote attendance by visitors and locals and allow for improved expenditure patterns within the Seaside Village;
6.Enhance opportunities for economic growth, through residential, commercial development and/or redevelopment.”
One page further on, 5.2.2 states:
“5.2.2 Evaluation Indicators
To measure the success of the strategy the following outcomes are sought:
·Decrease in the number of vacant buildings in the Seaside Village;
· Increase in visitor and domestic spending;
· Increase in day-trippers and short-term tourists;
·Number of development applications for key developments (ie Composite Buildings);
·Increased level of market confidence for the expansion of existing businesses and the attraction of new complementary businesses within the Plan area;
·Increase in the number of Home occupation – Category 2 business establishing within the DCP area;
·Increase in community-driven economic development initiatives; and
·Increase in the employment opportunities available in the Plan area.”
[25] It is unsurprising that the Council has reacted to the co-respondent’s proposal with enthusiasm. From the point of view of revitalising the DCP area, its merits are clear. Unfortunately, experience has shown that equivalent developments in Precinct 2a proper are difficult to secure. On the Coles Car Park site, at the northern extremity, an approval for a nine-storey (or similar) development was granted but has lapsed. This may or may not have something to do with engineering difficulties to do with that site’s straddling the outlet of Humpybong Creek to Moreton Bay. Elsewhere in Precinct 2a sites tend to be much too small to permit development. The evidence indicates, in a general way, that issues to do with owners’ conflicting wishes and to do with durations of tenancies and the like mean that, while medium rise development in Precinct 2a may be seen as inevitable, it may well take many years to eventuate on the ground.
Possible changes in planning arrangements
[26] The Council’s enthusiasm for the present proposal is indicated by the steps it has taken towards getting the DCP amended to include the site and the RSL Club site in Precinct 2a, after experiencing difficulties with the State Government relative to the old Council Chambers. The Minister for Local Government and Planning by letter of 24 April 2003 indicated that:
“In accordance with Schedule 1 of the Integrated Planning Act 1997 (IPA), I have considered State interests in regard to the proposed Planning Scheme amendment. I therefore advise, in accordance with section 11(2)(a) of Schedule 1 of the IPA, Council may notify the proposed amendment.”
[27] Notification subsequently occurred, attracting public submissions in considerable numbers, almost all of which were opposed to the amendment, for reasons which, in part, may indicate opposition to the co-respondent’s project; there was a general opposition to Redcliffe’s becoming another “Gold Coast” with high rise buildings. A careful review of the public’s submissions required by the Schedule was conducted by the Council’s Director – Development & Environment Services. It recommended that the Council, having considered the submissions, should resolve to proceed with the proposed planning scheme amendment as notified. This, however, did not happen, the Council resolving on 16 July 2003 “that consideration of this amendment to the Redcliffe Seaside Village Development Control Plan be deferred until the IPA Planning Scheme Public Consultation Period has closed.”
[28] Mr Jones contended that this resolution was tantamount to abandonment by the Council of the proposal to amend the DCP, having regard to the three possibilities allowed it by s 16 of Schedule 1, namely:
“(a) proceed with the proposed Planning Scheme as notified; or
(b) proceed with the proposed Planning Scheme with modification; or
(c) not proceed with the proposed Planning Scheme.”
[29] In my opinion the deferral ought to be read as no more than the terms of the Council’s resolution state. The point of Mr Jones’ argument was to deny weight to the proposed amendment as indicating the likely future planning arrangements for the land, for purposes of application of the “Coty” principle.
[30] Appendix B to the Planning Report of the co-respondent’s planner, Mr Buckley consists of extracts from the draft IPA Planning Scheme for Redcliffe which is shortly to be advertised to invite public submissions, having passed muster with the Department after review in respect of State interests. The site is included in the 12 Storey zone together with existing Precinct 2a, the RSL Club site and the CWA Hall. In the draft zoning proposal, those three parcels, likewise the Council’s area bounded by Irene Street, Oxley Road, Downs Street and Humpybong Esplanade and the area south-east of Humpybong Esplanade mentioned in para [ 7 ] become Frame Business zone, and within it, A11. According to the document, for purposes of Material Change of Use in the Frame Business zone, Consistent Uses include Accommodation unit in the impact assessment category “in Preferred Use Areas 10 and 11 where not on ground floor and the height of the building [is] four storeys and above”. Multiple dwelling is dealt with on the same basis, likewise Food service, in respect of which there are no refinements regarding the height of the building. Inconsistent Uses in Preferred Use Areas 10 and 11 include “Accommodation unit – where located on the ground floor.” Also included in the proposed Preferred Use Area 11 is the Bowls Club land. The new arrangements proposed are tailor-made for the proposal. One would expect them to be given weight in application of the Coty principle. Mr Jones’ argument was that the weight to be accorded them is greatly reduced, if there is any weight at all, because advertisement of the proposal for the new Town Planning Scheme, while imminent, has not yet occurred. Cases such as Ingram v Maroochy Shire Council [1983] QPLR 139, 146 and Robe v Calliope Shire Council (1974) 30 LGRA 1, 2 and others I considered in UgarinPty Ltd v Logan City Council [2003] QPEC 047 in my opinion, indicate that even at this preliminary stage some weight may nevertheless be given to the proposal. In the present circumstances the weight tends to be increased having regard to the series of deliberate steps the Council as planning authority has taken in the last three years or so, all calculated to introduce changes which favour and would facilitate the co-respondent’s proposal. Oddly, part of the appellant’s case relied on the new draft Scheme, which introduces a height restriction not only in storeys, but by reference to a 39 metre height limit; it is contended that the proposed building exceeds that height, this being disputed by Mr Riddel. Mr Hughes was content, for purposes of this appeal, to regard Coty as requiring that any development proposal not “cut across” new planning arrangements. In the circumstances, it may well be appropriate to incorporate a condition to the effect that the 39 metre height limit would be respected. There are possibilities, as I understand it, if Mr Riddel is wrong about the height, to excavate deeper than is presently envisaged.
[31] (These factors are also relevant in relation to an argument as to whether the top floor of car parking now proposed as part of a three-level parking facility is truly a “basement” or not. It protrudes above the ground less than one metre, a benchmark apparently established in Brisbane, but is closer to protruding far enough to be a storey in the lower-lying south-east of the site (where what might be thought an unsightly appearance of a car park is likely to be camouflaged by buildings in front). There are no equivalent definitions or guidelines as to what is a basement in Redcliffe. It is obvious that, where a site slopes, the amount of protrusion above ground level of a level basement will vary.)
[32] Other parts of the proposal for including the site in Frame Business zone include the following:
“4.5.7 Assessment Criteria
Specific Outcomes Probable Solution
(A) GENERAL – WHERE DEVELOPMENT IS LOCATED ANYWHERE IN THE ZONEd) A plot ratio of 1.7:1 for the part of the development that is above 2 storeys and where the development is between 9 and 12 storeys and for any residential component of the building (C) WHERE DEVELOPMENT IS LOCATED IN PREFERRED USE AREA 11–BUSINESS AND OFFICES SO7 The preferred uses are business premises in mixed use buildings with accommodation units and multiple dwellings. PS1 Business premises are located on the ground level. "
[33] Success of this appeal does not depend on any rezoning or change of precinct for the site. Every indication is that if planning arrangements are to change, they will change in some way(s) highly favourable to the development. There is nothing, really, to the contrary, although Mr Jones is able to point a good deal of public opposition to medium or high rise buildings in the locality, which, having regard to local government elections scheduled for March next year, may possibly change the Council’s direction. I would regard that as too speculative for the Court to act upon and am comfortably satisfied that the planning future of the land will be consistent with the direction the Council has been pursuing to date.
Appellants Town Planning objections to the proposal
[34] In this appeal, the reports in evidence contributed by the three town planning experts who gave evidence were clear and helpful. They were Mr Buckley for Pantex, Mr Brown, an independent planning consultant brought in by the Council for purposes of the appeal and Mr Simonic, who was engaged by Mr Jones. There is also a high quality internal Council Planning Report located at p 141 ff of the “Appeal Book” (Exhibit 5). This recommended approval on the following grounds:
“(a)The proposal while inconsistent with the current designation of Precinct 1 of the Redcliffe Seaside Village Development Control Plan warrants approval despite the conflict with the DCP as
(i) It allows for the adaptive re-use of the heritage listed old Council Chambers.
(ii) The site is subject to an amendment by the Council to the DCP which would include the site in Precinct 2a and due weight should be given to the amendment process.
(iii) The proposal would not be inconsistent in terms of character with the adjacent RSL development and development envisaged for the remainder of Precinct 2a.
(b) The proposal would not:
(i) Create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network that can not be managed through appropriate measures;
(ii) Detrimentally affect the amenity of the neighbourhood; or
(iii) Create a need for increased facilities.
(c) The situation, suitability and amenity of the land in relation to neighbouring localities is considered acceptable.”
… subject to [listed] conditions”.
[35] In some appeals, I have found internal local government planning reports of this kind the most helpful ones, perhaps because, as Mr Hughes put it (p 360), at that relatively early stage there may be “more light and less heat as far as the debate is concerned”. In most appeals, the need for caution to be exercised in regard to such reports is clear, given that the authors of them are usually not available for cross-examination. The author of this one may well have been exposed to (even if not been infected by) the enthusiasm for proposals such as the present clearly harboured by the Council and expressly set out in the DCP. That report had quoted a somewhat expanded list of “planning grounds” favouring the development application provided to the Council by the developer:
“(a)There is a need in a planning sense to facilitate an economic basis to continue the viability of the former Council Chambers building and this project delivers that;
(b)The project subject of the application has been reviewed, and has been subject to public notification by the Queensland Heritage Council and has received approval;
(c)Whilst it represents a change in land use type and intensity to that existing on the site, the proposal would not be out of character with development in what is effectively a central business district location;
(d)It is in the public interest that the proposed site be adaptively reused and contribute to the vitality of the city and to the locality; and
(e)It is understood that in all other aspects the proposed development can comply with the relevant provisions of the planning scheme.”
(f)The Council has flagged its intention to amend the scheme, and has already supported the approval of the Heritage Council of this very proposal.”
[36] Those are the proferred “planning grounds” potentially useful under the P & E Act provisions to which Mr Simonic responded in his report, Exhibit 11. While I took him to accept that, in principle, planning grounds along those lines might be invoked, he expressed the view that excessive weight had been placed upon them, and each of them, from the point of view of supporting the co-respondent’s present proposal. As to (a), it is the association with a 12 storey development that he questioned:
“The use of the site as a function/conference centre could be linked to the cultural intent of the Precinct and be developed in its own right or in association of a lower rise more appropriate development for its locality.”
[37] As to (b), his point, correctly made, is that the approval obtained from the Queensland Heritage Council results from an assessment against the provisions of the Queensland Heritage Act 1992, and not the IPA:
“The fact that the proposed development does not compromise the heritage status of the listed building does not constitute sufficient grounds for the approval of the overall development.”
If the meaning of this is that Heritage Council approval, standing alone, is insufficient, I would agree. In my opinion, the Heritage Council’s approval of what is approved for the site where a heritage listing building is constructed does constitute a planning ground favouring the development application which may be considered along with any others.
[38] Mr Simonic rejected proposition (c) by reference to the character of existing development, in particular the central business development of Redcliffe. That, as he points out, is characterised by low rise strip development. He says that the development of a 12 storey composite building outside the established and designated business centre to the north will dominate the skyline and detract from the unique character of the area, as well as causing an extension of the strip or linear nature of the commercial area, thereby reducing the integration of facilities. He interpreted the proposed tower as having height in excess of 45 metres, well in excess of the 39 metre limit for 12-storey development contained in the proposed IPA Planning Scheme draft. (In this regard I would prefer the evidence of the architect.)
[39] Mr Simonic’s observations about height are reflected in views of many local people. There is clearly a conflict between those attitudes and the planning future for Precinct 2a in the DCP. It is inappropriate for the Council or the court to disregard the DCP, while it exists, on the basis that it encourages the coming of unwanted change in Redcliffe. At present, both immediately south of Precinct 2a and north of it (beyond Precinct 1) construction to nine storeys is permitted, and has already occurred. Buildings of those dimensions already contribute to the character of Redcliffe in a way which cannot be ignored. In my opinion, Precinct 2a should be regarded as having an existing low rise character, which will inevitably move towards a character increasingly featuring medium rise buildings. It is wrong to identify its character solely by reference to the rather elderly commercial development presently there.
[40] Mr Simonic disputed (d) on the basis of the “strong opposition, clearly demonstrating the public interest not being served by higher density development associated with Precinct 2a type provisions” following notification of the proposed amendment to the DCP; he thought re-use of the site in more appropriate form and scale would better serve the public interest. Assuming that the public interest coincides with what the public want (and is not necessarily demonstrated by relative numbers of submitters pro - and con -), it seems to me there are various ways of attempting to gauge it, including reference to the DCP and the views of the elected local government.
[41] As to (e) Mr Simonic said:
“It is understood that in all other aspects the proposed development can comply with the relevant provisions of the planning scheme.”
[42] Mr Simonic’s points are well made, but I regard them as essentially technical, rather than substantial. To the extent that required relaxations, in relation to setbacks, landscaping and the like, are forthcoming, in my opinion there is compliance with planning scheme requirements in this context. It was properly conceded in the appellant’s case that the preservation of the old Council Chambers, which effectively quarantines a large part of the site from new development, in the public interest, gives rise to a sympathetic case for relaxations. As to the basement, it is noted elsewhere that Redcliffe has no definitions. Subject to height recommendations being respected, I think a building which meets the definition of a 12 storey one may be accepted as such, notwithstanding that it may appear from some viewpoints to have an extra storey. As to (f), the point is the one noted elsewhere that, arguably, “Council has not proceeded with the amendment to the DCP and as such the provisions of Precinct 1 should be applicable.”
[43] Mr Simonic went on to consider the potentially relevant planning ground of “need” (cf s 4.4(3)(b) of the P & E Act) in a more conventional way:
“The applicant and Council have failed to demonstrate sufficient planning grounds to approve the development. The issue of need has also not been addressed. The underdevelopment of the current Precinct 2a land is testimony to this. No 12 storey high rise development has taken place in Precinct 2a or any other part of the City. The identification of a Strategic Development Site Number 2 (Coles Car Park) to the south of Humpybong Esplanade, provides ample opportunity for development similar to that proposed in a more appropriate location. Had there being an urgent need for this type of development, similar developments would have taken place in areas identified as being appropriate (Precinct 2a).”
[44] I respectfully disagree with the view that the lack of such developments in Precinct 2a is an indication of the lack of “need”. My reading of the DCP is that it proclaims the need clearly in more than one place, enough, I would have thought, to establish the need. The non-emergence of medium rise development in Precinct 2a is, my view, attributable to the difficulty of assembling suitable sites and of locating a developer willing to commit resources to an expensive development whose profitability is uncertain. A medium rise development comparable to the proposal was approved for the Coles Car Park site, but the approval lapsed. The enthusiasm for the Pantex application which the Council have shown on a site in Precinct 1 which is not far removed is no less than one would expect. The court should not second-guess the identification in the DCP of (effectively) a planning need for such a development, in the interests of revitalising Redcliffe Seaside Village. No doubt the Council is hopeful that, if it succeeds, the project will be a catalyst for similar developments in the existing Precinct 2a.
[45] Mr Simonic’s report goes on to discuss other issues raised in the appeal grounds alleging adverse impacts of the proposal. The first is that it involves the part destruction of the heritage listed building, something which Mr Simonic regarded as not a town planning issue; in any event, this is something that has happened already, with the blessing of the proper authorities; no more of the heritage listed building will be lost. The complaint as to built form and height of the proposal being inconsistent with the character and built form of the surrounding area (dealt with already above), is mentioned again, next that the development “would result in unreasonable glare to and overlooking of nearby buildings”. The glare point was not pursued, nor the next point that the building proposed will cause overshadowing of the beach and a culturally significant landmark, namely the site of the first settlement in Queensland, but it was noted that “increased overshadowing is likely to occur over the Captain Cook Park east of Redcliffe Parade (and First Settlement Memorial Wall in late afternoon)”.
[46] The developer may be counted fortunate in that neighbouring uses are such that “overlooking” is not a problem. To the south (separated by Bowling Green Lane and the allotment representing the imaginary continuation of it to Redcliffe Parade), is the back of the RSL Club, and its goods entrance in particular; to the west is the Bowls Club (the claim that shadowing might harm the grass of part of the eastern rink by depriving it of sunlight was not made good – there seemed to be a corresponding issue for the western rink created by the three storey residential development being constructed there); to the north is the Police Precinct (in the west) and the CWA Hall in the east. Anxiety has been expressed by users of the Hall, focussing on the disruption and nuisance that is feared while the development is constructed – an example of the (apparently unavoidable) annoyance that neighbours have to put up with if there is development of any kind next door.
[47] The next ground covered is that “the development proposal will result in an unreasonable and a detrimental impact on the amenity of the area” which is related in part to traffic matters next raised. Mr Jones (who made it clear that he did not contend that the adverse impact he fears upon the amenity of his family residence at 3 Prince Edward Parade would justify refusal of the application on its own) complains of the visual intrusion of a large building to the south of his residence which he will not be able to ignore when he looks out from his front balcony or the rear balcony which he hopes the Council will permit him to construct shortly. To a considerable extent, I think, Mr Jones is complaining that what he will be forced to look at is at odds with his idea of what Redcliffe is and ought to be. No doubt, Redcliffe will grow skywards all around him. Across Prince Edward Parade and slightly to the north (probably closer than the site, though this doesn’t matter) is an established nine storey apartment building. There is noted elsewhere the current approval for another one across Prince Edward Parade much closer. Mr Jones is grateful that street trees obscure the existing (and he hopes will obscure any new) building. Had the Coles Car Park development gone ahead, or should it be revived, at the northern end of existing Precinct 2a, Mr Jones would be offended by the unwelcome sight of it when he looked out. I agree with Mr Buckley and Mr Brown that it is only a matter of time before such development happens. There was some mention of the desirability of transitional zones of reducing building height, a common requirement, presumably based on a theory that it is better to come upon a high rise precinct gradually, rather than suddenly. The DCP does not espouse this notion, which does not fit comfortably with the present (and expected future) ability of developers to construct eight or nine storey buildings in the precincts or zones north and south of central area. The impact of the proposal on the planned amenity of the area would be neither unreasonable nor detrimental. While Mr Jones’ and his supporters’ views are entitled to respect, adjoining landowners (whose interest may well be to have their own land dealt with in a similar way to the site) appear to be supportive of the proposal. I think the prospect of a mixed use composite building located adjacent to the Precinct where such development is strongly desired, with the qualification that it is separated by the commercial-type use of an apparently flourishing RSL Club, is of such benefit to the area in planning terms as to outweigh the disappointment of those local people whose tastes and attitudes favour smaller scale development.
Traffic and parking
[48] Mr Graham gave evidence in the appellant’s case regarding parking and traffic issues. He has had a long and active association with the Bowls Club. He said nothing regarding the proposal for a lay-by or set down area in Redcliffe Parade which will apparently entail the loss of two parking spaces there. It is likely to be used by people having a business on the site, and also other destinations nearby. Mr Graham’s concern was about the problems of what was described as the Irene Street-Bowling Green Lane “intersection “, which was regarded as extending a considerable distance inland along Irene Street, at least to the Bowls Club’s western entrance. Irene Street curves gently to the south at about the western boundary of the site, widening there by reason of the continuation of it in a straight line as Bowling Green Lane. Those two streets and Redcliffe Parade are the sides of the triangular RSL site. At the western end is a considerable expanse of road pavement to be traversed by pedestrians moving between there and the Bowls Club or the Coles Car Park area. Mr Graham, whose evidence I accept, claimed there had been many minor accidents and near misses involving vehicles. He spoke of difficulties encountered in egressing the Bowls Club from its western entrance and a (presently closed) more easterly entrance between the two rinks, emphasising the patience that was required while a safe opportunity to enter Irene Street was awaited. He spoke of parking pressures there, vehicles parking and buses stopping in situations which impaired visibility. He said that the afternoon sun was a particular problem for drivers heading west along Irene Street. He is apprehensive about the addition of traffic associated with what is now a 74 unit residential building (it was originally proposed to be more than 100, and approved by Council as 89) and the associated convention, conference and café uses. There is scope for conflict between vehicles executing right hand turns from the site and the Bowls Club into Bowling Green Lane and traffic executing right hand turns from the eastern end of Irene Street into Bowling Green Lane. I am personally inclined to agree with Mr Graham, but am faced with evidence from Mr Stuart Holland and Mr Beard, who assure the court that there is no reason to harbour concerns regarding traffic movement or safety in their professional opinions, which I am not prepared to reject. They say that the traffic environment will ensure that vehicle movements there are occurring at low speeds. They point to locations in the “intersection” suitable to provide refuge for pedestrians crossing. They are correct in describing as irrelevant to the present application the unusual use of the intersection made by a forklift which, perhaps a couple of times a day on average, transfers goods from a cold room the RSL Club has established on the Bowls Club site to the Bowling Green Lane goods entrance of the RSL Club itself. Mr Graham regards the forklift driver as engaged in a dangerous activity, and has told him as much. He told the court that the forklift driver used a registered vehicle for use on the road, contrary to assumptions made by the traffic experts. If there are any relevant planning or other issues arising from the forklift activities, they plainly relate to use by the RSL Club of its sites, and are irrelevant to Pantex’s application.
[49] Mr Holland has accepted minor changes proposed to the car parking layout by Mr Beard, to permit more convenient parking of a large vehicle on the site, at the cost of one car park. They agree that parking provision on site is adequate.
[50] There have been suggestions that the gymnasium and swimming pool on the site may at some stage be adapted to be used in a commercial way, for patrons coming from outside the site. Allowing for this eventuality may explain the surplus of parking to be provided, over what is strictly required. Whether or not the planning permission necessary to authorise that new use of the site will be forthcoming, should it be applied for, is an irrelevant consideration for purposes of this appeal. Given Mr Holland’s and Mr Beard’s evidence, there are no traffic or parking issues which ought to concern the court here. It might be noted that although the site has a considerable frontage to Redcliffe Parade, there are restrictions in the DCP against enjoyment of access from there. If use is to be made of the site, access has to be via the other frontage to Bowling Green Lane. In the circumstances, it would seem unfair to preclude or limit the development by reference to these traffic considerations, notwithstanding some traffic features which may be less than ideal, such as the entrance to the site being located opposite the RSL Club goods entrance.
“Landscaping”
[51] The developer’s uncertainty as to how the development might fare extends to identifying the most appropriate mix of tourist accommodation and accommodation for permanent residents. The number of “twin key” apartments, which are seen as the best adapted to short-term occupancy, has been changing. The lots can be expected to end up in multiple ownership, and what happens to each of them will be decided by the owner(s) from time to time. Reception facilities for use in management of short-term accommodation will be available, apparently in the function centre. The mix of residential uses is of some significance, in that it affects the amount of “landscaping” to be provided. The provision can be smaller for each accommodation unit used for tourist or equivalent short-term occupancy. Should there be no such use at all, there could be something like an 11.5% shortfall. The planning scheme requirements are unusual, in that it is not provision of conventional landscaping that is required, but a composite of landscaping and recreational space, which includes areas such as the swimming pool and balconies. I agree with the planners’ opinions that the proposed development’s being open to Captain Cook Park and the wide expanse of Moreton Bay, coupled with the contribution the development makes in respect of the old Council Chambers, supports the limited relaxation which might (in a worst case scenario) be required.
Changes to the development application
[52] As indicated above, Pantex has sought to make changes to its development application since Council’s approval, not only in respect of reducing the number of units. Mr Buckley’s Planning Report (Exhibit 1) in Appendix A summarises the changes, which are illustrated in the plans in Exhibit 4. Mr Jones has raised no point about any of the changes. I agree with Mr Buckley’s view that none of them is material, that neither individually nor collectively do they represent a different proposal that might have provoked adverse submissions, had the opportunity to make them been available. As Mr Buckley says, the external relationship of the proposal to its surrounds is essentially the same. See paragraph 3.1 of Exhibit 1. The court’s order should make provision for the changing of the application, and the 39 metre height limit mentioned.
Conclusion
[53] Otherwise, the appeal should be dismissed. While this may be an unwelcome outcome from Mr Jones’ point of view, it is essentially harmonious with the existing DCP, if it is accepted that the inclusion of the site in Precinct 1 has been overtaken by events (namely the passing of it into private ownership, which I am inclined to think constitutes a planning ground favouring the development application, although I have felt no need to place any weight on such a ground). While it is theoretically possible that the site might be assigned to some Precinct other than 2a, that would involve creation of a small island subject to requirements considerably at odds with those applying all around it. Nothing about the development cuts across what seems likely to be the planning future of the site, whether that occurs through amendment of the DCP or adoption of the IPA compliant Planning Scheme. The process cannot be fairly be seen as one in which the developer has wholly carried the day. It has been compelled, against its own inclinations, to preserve the heritage listed place, requiring both expenditure of funds and modification of the development it might have preferred.
[54] It is convenient to note the planning grounds identified by Mr Buckley as justifying the approval of the development application notwithstanding conflict with the DCP. I am in agreement with his summary:
“1. With respect to planning documents applicable to the locality:
(a) the existing planning documents, which include the subject land in a precinct for government and other community uses (and which, therefore, limit development to three storeys) have been overtaken by time and events, and in particular by the fact that the subject land is now in private ownership;
(b) on the balance of probabilities future planning documents (namely relevant development control plan and the future town planning scheme for the City of Redcliffe) will include the subject land in a precinct or area which facilitates and indeed encourages the development of residential accommodation development, including such development in buildings up to twelve storeys in height.
2. Likely future development in the locality will include medium rise buildings facilitated by planning scheme provisions which include:
(a) with respect to the area to the south, provisions which support buildings to a height of twelve storeys; and
(b) with respect to the north, provisions (particularly in the nearby Residential D zone) which support buildings to eight storeys in height.
3. The proposed development includes the preservation and enhancement of the former Council chambers:
(a) such preservation is desired by the Queensland Heritage Council and will benefit the general public as a whole;
(b) the proposed development is supported by the Queensland Heritage Council; and
(c) the proposed development will allow funding to preserve this heritage listed Council chambers for the benefit of the public as a whole.
4. The proposed development will have no unacceptable impact on adjoining properties or nearby properties and will in fact enhance the amenity of the locality.
5. The proposed development will add to the locality a building of considerable architectural merit which will enhance the built form and the amenity of that locality.
6. The proposed development will provide opportunities for both:
(a) permanent or semi-permanent residential development; and
(b) accommodation for tourists;
both of which are matters of public interest and important in Redcliffe.
7. The proposed development fits within the character both contemplated by, and promoted by, present planning documents and likely future planning document for this locality.
All these grounds strongly support approval of the application.”
As indicated, I would be prepared to add “need”.
[55] The appeal must be dismissed. It is appropriate that the parties be allowed an opportunity to formulate further orders giving effect to the matters indicated in paragraph [52].
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