Kangaroo Point Residents Association Inc v Brisbane City Council & Anor - [2014] QPEC 64

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64

PARTIES:

KANGAROO POINT RESIDENTS ASSOCIATION INC
(Appellant)

v

BRISBANE CITY COUNCIL
(Respondent)

and

METRO LAMBERT STREET PTY LTD

(ACN 154 153 821)
(Co-Respondent)

FILE NO/S:

171/2014

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

19 November 2014

DELIVERED AT:

Brisbane

HEARING DATES:

24, 25, 26 and 30 September and 1, 2 and 3 October 2014

JUDGE:

Dorney QC DCJ

ORDER:

That the hearing of this appeal be adjourned for further hearing, if needed, concerning the imposition of appropriate conditions.

CATCHWORDS:

Planning and Environment - submitter appeal - planning authority supporting dismissal - whether conflict - “community expectations” - new plan in force after approval

LEGISLATION CITED:

Sustainable Planning Act 2009, s 36(2), s 314, s 314(1), s 314(2), s 314(2)(b), s 314(2)(g), s 314(3), s 314(3)(b), s 326, s 326(1)(b), s 493(2), s 495(1), s 495(2)(a), Schedule 3

CASES CITED:

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1

Abacus Funds Management v Sunshine Coast Regional Council [2012] QPELR 669

Aria Property Group P/L v Maroochy Shire Council & Ors [2008] QCA 169

Baptist Union of Qld v Brisbane City Council [2003] QPELR 61

Calvisi & Ors v Brisbane City Council & Ors [2009] QPELR 35

Emerald Developments (Aust) Pty Ltd v Brisbane City Council [2003] QPELR 438

Friend v Brisbane City Council [2014] QPELR 24

Gold Coast City Council v K Page Main Beach Pty Ltd (2011) 185 LGERA 55

Hankamer v Brisbane City Council [2013] QPELR 800

Hope & Anor v Brisbane City Council [2013] QCA 198

Hunter & Ors v Canary Wharf Ltd [1997] AC 655

Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116

K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPELR 406

Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302

Mackay Shopping Centres Pty Ltd v Mackay Regional Council [2013] QPELR 661

Main Beach Progress Association Inc v Gold Coast City Council [2008] QPELR 675

R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22

Robinson v Brisbane City Council & Anor [1987] QPLR 71

Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515

Scurr v Brisbane City Council (1973) 133 CLR 242

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

Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245

Stockland Development Pty Ltd v Townsville City Council & Ors (2013) 195 LGERA 317

The Purcell Family v Gold Coast City Council [2004] QPELR 521

WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126

Weightman v Gold Coast City Council [2003] 2 Qd R 441

Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272

Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82

COUNSEL:

Mr A Skoien and Mr M Batty for the Appellant
Mr T Trotter for the Respondent

Mr D Gore QC and Mr B Job for the Co-Respondent

SOLICITORS:

Thynne & Macartney for the Appellant
Brisbane City Council Legal Practice for the Respondent

Corrs Chambers Westgarth for the Co-Respondent

Introduction

This is a submitter appeal filed 17 January 2014, meaning that the incorporated appellant (“Association”) – being the only remaining appellant because the three individuals who were additional appellants discontinued their involvement by Notice filed 12 August 2014 – made a submission in the relevant notification period, being effectively a period from 28 March 2013 to 19 April 2013, during which the public could respond to the original Development Application lodged by the co-respondent, Metro Lambert Street Pty Ltd (“Metro”). There were 140 properly made submissions in all. The essential concern of the appellant was, and is, that the application for the then entitled “Material Change of Use – Multi-unit Dwelling – 253 units and Preliminary Approval for Building Work and Operational Work adjoining a Heritage Place” - and since amended - was in conflict with the relevant planning scheme, in particular, because the proposed development was, and remains, alleged to be excessive in many respects, including height, width, density and reduction in setbacks.

At this introductory stage, it should be noted that the Kangaroo Point peninsula area has been, and remains, the subject, in all relevant plans, of its own specific Local Plan or Neighbourhood Plan.

Given that it is common ground that the land area in question is in a high density residential area with specific performance criteria and specific acceptable solutions, some inevitable misunderstandings could, and did, arise concerning what the respondent, the Brisbane City Council (“BCC”), could approve on the particular site in question.

The Site

It is not in dispute that (primarily adopting the written submissions, on this point, of the BCC) the subject land, as presently identified, (“the Site”):

(a) comprises an area of 3,291 square metres, being the combination of 7 different lots (now all vacant land);

(b) has a frontage of 82.27 metres to Lambert Street, Kangaroo Point;

(c) has a frontage of 9.84 metres to Cairns Street, Kangaroo Point;

(d) is situated at 36 to 48 Lambert Street and 67 Cairns Street;

(e) has a relatively steep cross rise of some 7 to 9 metres from the Cairns Street frontage to the south eastern corner of the Site on Lambert Street (Exhibit 21);

(f) is irregular in configuration (being roughly a battle axe shape with the handle being in a north–south direction at the northern extremity of the site);

(g) is contained within the Urban Footprint under the South East Queensland Regional Plan 2009–2031 (“SEQRP”);

(h) is designated a Residential Neighbourhood in the Strategic Plan under the Brisbane City Plan 2000 (“CP2000”);

(i) is within the High Density Residential Area under the CP2000;

(j) is within the Residential Precinct of the Kangaroo Point Peninsula Local Plan under the CP2000;

(k) is within the Suburban Living Area under the Brisbane City Plan 2014 (“CP2014”), Strategic Framework;

(l) is within the HDR2 – High Density Residential (15 storey) Zone under the CP2014;

(m) is within the Residential Precinct under the Kangaroo Point Peninsula Neighbourhood Plan under the CP2014; and

(n) is within the Kangaroo Point “Growth Node on a Selected Transport Corridor” under the CP2014.

Chronology

The relevant aspects of what has occurred are:

(a) on 6 November 2008, the BCC approved a large development on the subject land, and on two additional lots on Cairns Street (“Rankeilor 1”);

(b) on 7 May 2009, an appeal by the appellant against that approval was dismissed;

(c) on 15 December 2010, the Planning and Environment Court approved certain permissible changes to that approval (“Rankeilor 2”);

(d) until 31 December 2015, Rankeilor 2 remains current;

(e) on 14 December 2012, the original Development Application for the proposed development was lodged with the BCC;

(f) on 3 December 2013, minor changes made to the Development Application were approved by the BCC; and

(g) on 9 December 2013, a Decision Notice dated that day of the BCC was issued advising of its decision to approve the changed Development Application (“DA”), with conditions.

Exhibit 37 details those relevant approvals in tabular form (although there is some dispute about the number of storeys designated and although the last column should read “Current Proposal”).

Statutory Assessment Appellate Regime

As the DA was lodged, assessed, and appealed under the Sustainable Planning Act 2009 (“SPA”), it is the provisions of that legislation that first need to be addressed (in its latest iteration).

As the DA involved “impact assessment”, s 314 of the SPA is engaged, pursuant to s 314(1).

By s 314(2) of the SPA the assessment is, to the relevant extent, to be made against, or having regard to, the matters or things set out in s 314(2) and s 314(3). Here, those matters or things are identified by s 314(2)(b), s 314(2)(g) and s 314(3)(b), respectively, as “against” the SEQRP and the CP2000, and “having regard to” Rankeilor 1 and Rankeilor 2.

In particular, the assessment decision, by s 326(1)(b) of the SPA, must “not conflict with” a relevant instrument unless there are “sufficient grounds to justify” the decision, “despite the conflict”. In the present circumstances the definition of “relevant instrument”, relevantly, identifies the CP2000.

In terms of court processes: s 495(1) of the SPA states that the appeal is by way of hearing “anew”; and s 493(2) states that, in an appeal by a submitter for a development application, it is for the applicant (here, Metro) to establish that the appeal “should be dismissed”. Further, by s 495(2)(a), where, as here, the appellant is a submitter with respect to a development application, this Court must decide the appeal based on the laws and policies applying when the application was made (namely, the CP2000) but may give weight “to any new laws and policies the Court considers appropriate” (here the CP2014, which has been in effect since 30 June 2014).

SEQRP

As it now appears in s 36(2) of the SPA, to the extent to which there is any inconsistency between a regional plan and a local planning instrument, the SEQRP, relevantly, “prevails to the extent of the inconsistency”.

The SEQRP Desired Regional Outcome (“DRO”) 8, under the overall heading of “compact settlement”, seeks a compact urban structure of well-planned communities, supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations which establishes the context for achieving a consolidated urban settlement pattern. In explaining that desired outcome it notes that:

· South East Queensland (“SEQ”) is the third largest urban region in Australia and is experiencing “sustained growth pressure”;

· SEQ has developed historically in “a dispersed, low-density settlement pattern, which has moved outward into the regional landscape” but this “pattern has become unsustainable”;

· in response, the SEQRP “concentrates urban development in the Urban Footprint” and “redirects an increased proportion of new growth to existing communities”;

· the SEQRP’s “balanced approach to settlement ensures the efficient use of land and infrastructure”, doing this “by requiring the efficient use of infrastructure in the city before new infrastructure is built further out”;

· among other areas, “suitable established urban areas” (which must include the Kangaroo Point peninsula) are the “focus for accommodating regional dwelling and employment targets, and would accommodate projected growth to 2031”;

· transport plays “a fundamental role” in SEQ’s sustainability and “is best supported in a compact urban form”;

· provision of housing options “should include a consideration of the costs of access to employment, facilities and services”;

· changing household demographics, including an aging population and “more diverse households”, are “increasing the demand for wider housing choice in SEQ”; and

· the balanced growth approach of the SEQRP provides housing choices for all SEQ residents and accommodates growth at the same time and, in this way, “diverse housing choices help provide affordable housing and can also mitigate the environmental costs of car-dependent development, use infrastructure resources more efficiently, and ensure better jobs to housing balance”.

DRO 8.1, entitled “compact development”, states that its principle is to “conserve land by making the most efficient use of land allocated for urban development”. Its associated policies include:

· accommodating a higher proportion of the growth through infill and “redevelopment of existing urban areas” to meet certain dwelling targets identified in Table 3; and

· focusing high density and mixed-use development in and around regional activity centres and public transport nodes and corridors;

: see 8.1.1 and 8.1.2. The accompanying notes to DRO 8.1 state that, to promote a balanced settlement pattern and more compact development within the Urban Footprint, the SEQRP “requires higher density residential development to be focussed within and around regional activity centres, and public transport nodes and corridors”.

DRO 8.2 is entitled “containing growth”. Its principle is to:

· promote liveability and transport efficiency and reduce car dependence and private vehicle travel; and

· locate urban development in the Urban Footprint, either within or near existing communities to utilise their infrastructure and services, or within existing activity centres and at key locations along planned public transportation infrastructure.

DRO 8.5 is entitled “housing choice and affordability”. Its principle is to provide “a variety of housing options, diverse community needs, and achieve housing choice and affordability”. Its policies include, by 8.5.2, to provide housing choice “through a range and mix of dwelling type, size and location in residential developments”. Its notes state that, with significant population growth, SEQ is “undergoing economic, social and demographic change”, with traditional households of couples with children decreasing and the number of people living alone, without children or as lone parents, increasing. It further notes that this “household change” is “creating demand for more housing options, including more affordable housing” and that understanding these changes and the implications for housing demand and supply “at a local level” can help determine “the type of housing needed in new development”.

DRO 8.9 is entitled “integrated land use and transport planning”. Its principle is to ensure new development, relevantly, “utilises existing infrastructure”. The notes to it state that integrating land use and transport: “supports more efficient land and existing infrastructure use; and maintains the environmental benefits of compact development”.

Assessment under CP2000

Chapter 5 of the CP2000 “provides details of Codes used in assessment”. In explaining how to use those Codes, it states that the component designated “Purpose” within that Code explains what the Code “seeks to achieve”.

With respect to Performance Criteria, Chapter 5 states that they provide a statement of the outcome that the Acceptable Solution “must achieve”. In particular, it states that a proposal not complying with an Acceptable Solution “must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met”.

Particularly important here is the statement in Chapter 5 that, relevantly for code and impact assessment, the Acceptable Solutions “represent the preferred way of complying with the Performance Criteria”. It further states that there “may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose”. In particular, it states that it is “the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria”. And lastly, in terms of assessment, it states that a proposal “that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts”.

Chapter 3, in part, sets out how different aspects of the CP2000 are to be understood with respect to Local Plans (defined later in Chapter 3 as providing “more detailed guidance” regarding planning intentions in specific localities as detailed in Chapter 4). In particular, a Local Plan does “not replace” the “Area allocation” described in Chapter 3 but puts forward “more locally focussed desired land use and built form outcomes” for the Local Plan areas. Importantly, Local Plans “override” any parts of the Plan “with which they may conflict”. (Chapter 5, providing details of Codes used in assessment, states that the “level of assessment” in Chapter 3 may be “varied” by the Local Plans in Chapter 4.)

When Chapter 3 deals with “Codes and Related Provisions”, it states that the relevant Codes listed alphabetically in Chapter 5, are “the baseline regulations against which proposals” are “assessed”, contain Performance Criteria and Acceptable Solutions, and “will also be considered for impact assessment where relevant”.

With respect to such impact assessment, Chapter 3 states that development subject to impact assessment requires an application and development permit before development can start and is “assessed against the whole planning scheme”, including relevant Codes in Chapter 5 and any relevant Local Plan Code in Chapter 4. In particular, whether or not the level of assessment is varied by a Local Plan, impact assessable development within a Local Plan area “will automatically be subject to the relevant parts of the Local Plan Code”. Concerning, “generally appropriate” and “generally inappropriate” impact assessable development, Chapter 3 states, with respect to assessing “generally inappropriate impact assessable development”, that the proposal will need to demonstrate that, amongst other things, the character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with “the reasonable expectations and DEOs for the Area in which the land is classified”.

In Chapter 3’s treatment of the level of assessment for High Density Residential Areas, specifically for the Kangaroo Point Peninsula Local Plan (though applicable to others), the level of assessment is determined by checking “this” level of assessment table and “then” checking the level of assessment tables in the relevant Local Plan to determine whether the Local Plan “changes” the level of assessment. Further, where the Local Plan contains a Code, the Code provides “additional and/or alternative” Performance Criteria and Acceptable Solutions to the Codes in Chapter 5 and “take precedence over” the Codes in Chapter 5.

Chapter 3, in dealing with “Impact Assessment” that is “Generally appropriate” in a High Density Residential Area - Multi-unit Dwelling, where there is compliance with the Residential Design – High Density Code, the Relevant Code is stated to be Residential Design – High Density Code. It should be noted that, if the DA did not comply with all provisions of this Code, the level of assessment trigger relating to “Any other material change of use” would be activated and the DA would be considered “Impact Assessment – Generally inappropriate”. To the extent to which it has been submitted that such a characterisation amounts to relevant “conflict”, it is simply development “not specifically envisaged in the area”. This particular Code is surveyed in more detail in the following section of these Reasons - but suffice it to be noted that, if this DA complied with this Code’s Performance Criteria and Purpose, it would be “generally appropriate” development.

Chapter 3, in dealing with a High Density Residential Area (“HDRA”), states that the “Intent” is that development “will be” to a “maximum” block ratio of 1.5, will be “no higher than” 10 storeys and will “address the street”. As to the level of assessment, that is stated to be that contained in those provisions dealing with the High Density Residential Area (referred to above). Its DEOs are, relatively, neutral for this case.

Residential Design – High Density Code (“RD-HDC”)

As earlier observed, and as Chapter 5 expressly states for this Code, when using this Code where it is listed in a level of assessment table in Chapter 3, or a Local Plan in Chapter 4, as a Relevant Code for impact assessment:

·this Code is to be read as being the Purpose, the Performance Criteria and the Acceptable Solutions; (but)

·a Local Plan may include a Code that may vary, or include additional, Purposes, Performance Criteria or Acceptable Solutions.

Bearing in mind that capacity for variation, or addition, the expressed Purpose of this High Density Code is, amongst other things, to “effectively manage impacts of the new development on neighbours” while:

·“encouraging” attractive buildings of a size, intensity and appearance “consistent with” the High Density Area;
·“facilitating” development that is “not more than” 10 storeys in height, spread across the site and orientated towards the street.

Insofar as its Performance Criteria and Acceptable Solutions are concerned, Performance Criteria P2 states that “building size must be consistent with the intentions for the Area” and Performance Criteria P3 states that the “appearance of building bulk must be reduced by design elements”.

The Acceptable Solutions referable to P2 are as follows:

· by A2.1, maximum gross floor area is no more than, relevantly, 1.5 times the site area;

· by A2.2, the site area is a minimum of 800m² and has a minimum frontage of 20m;

· by A2.3, building height at any point is no more than:

§ 30m from ground level to the underside of the ceiling of any habitable room;

§ 10 storeys above ground level; and

· by A2.4, building length is no more than 30m in any direction.

Both P2 and P3 are within the concept of “building size and orientation”. Later Performance Criteria and Acceptable Solutions are referable to the concept of “building appearance and setting”.

Kangaroo Point Peninsula Local Plan (“KPPLP”)

Though expressed in slightly different terms, the Chapter 3 assessment processes concerning Local Plans obviously resonate in the introduction to this particular Local Plan under Chapter 4. Specifically, the Introduction states that this Local Plan contains specific “additional” local planning requirements and that where it “conflicts” with the requirements of the CP2000 this Local Plan “prevails”.

The second part of this Local Plan deals with development “principles”.

By 2.1, it states that the Kangaroo Point peninsula is to be a “convenient” residential area in which people live “at higher densities” than in “most” other parts of the City.

By 2.4, it states that “views to and from” the Story Bridge are to be “protected”. Furthermore, buildings in the “locality” are to be of a scale and height that maintain the “dominance” of the “city centre skyline” and the “significance” of the Story Bridge to the “inner-city skyline”.

By 2.5, it states that “views” are to be “available” to “most” residents.

By 2.7, it states that “proposals are to be responsive” to their site, adjoining development, the “locality” and the City (and the environment as a whole).

Map A indicates the particular precincts of this Local Plan. In that map, the Site (being the subject land) comes within the “Residential Precinct”, although it is noted that it is not within the specified area “with height limits to protect views” in that precinct. This Map also identifies the Local Plan “boundary”.

The third part deals with precinct “intents”.

By 3.3, dealing with the Residential Precinct, it states that the precinct is intended for “high density residential use” in accordance with, first, the Kangaroo Point Peninsula Local Plan Code and, secondly, the “design criteria” of the RD-HDC.

The fourth part deals with “exceptions” to the level of assessment “overriding” the levels of assessment in Chapter 3.

By 4, it states that, as earlier discussed, the trigger for assessment in the level of assessment table is, relevantly, “material change of use”. In that table, for impact assessment in a Residential Precinct, for all development, the Kangaroo Point Peninsula Local Plan Code is the “Relevant Code”. As seen from 4.3, all uses other than the five identified are impact assessable, generally inappropriate.

By the fifth part, the Kangaroo Point Local Plan Code (“KPLPC”) is laid out. This states that this Code provides additional and/or alternative Performance Criteria and Acceptable Solutions to the Codes in Chapter 5 and that they “take precedence over” the Codes in Chapter 5. Again, as earlier noted in the discussion of Chapter 5 for RD-HDC, that variance is also acknowledged there. The stated “purpose” of this Code is to ensure that development in the “Local Plan area” is “consistent with” the Development “principles” and the Precinct “intents” of this Local Plan (discussed above).

Turning then to this Code’s Performance Criteria and Acceptable Solutions, it is particularly to P2, P3 and P4 that attention is directed, although P6 is also relevant. As for the Dockside Precinct, it can be remarked that no Acceptable Solution relates to a building height of greater than 10 storeys.

The Performance Criterion relating to gross floor area is that designated in P2. It states that the building “site” - which must mean “size”, in context, especially that context provided by P1 and P3 - and “bulk” must be consistent with the “high density nature” of the “locality” and retain an appropriate residential scale and relationship with other buildings on the “city skyline”. The relevant Acceptable Solution A2 states that where the area of the site exceeds 3,000m² (as here) the gross floor area (“GFA”) does not exceed 1.25 times the site area.

For building height, Performance Criterion P3 states that new buildings “must” maintain views “to and from” the Story Bridge and “must not extend significantly above” the “skyline envelope” formed by linking the tops of “existing or prospective” buildings in the “vicinity” that comply with the associated Acceptable Solutions, or are of a size and bulk consistent with the “high density nature” of the “locality” and of a residential scale providing a “visual” relationship with other buildings on the “city skyline”. The relevant Acceptable Solutions are listed. A3.1 refers to building height not extending above the planes established by the “maximum building height” contours on Map C or 10 storeys above ground level, whichever is the lower. It must be observed, at this stage, that Map C does not include the relevant Site. What the “(b)uilding height contours” do show are a gradual upward gradation from the river banks to the Story Bridge, with the highest of those being 32.5 AHD. A3.2 refers to building height south of Cairns Street on the eastern side of the Bradfield Highway not exceeding 10 storeys (excluding, relevantly, lift towers and other roof plant rooms). A3.3 and A3.4 deal with areas outside the immediate areas of concern.

For streetscape, Performance Criterion P4 states that building forms must be in keeping with the “existing streetscape”, and that building articulation and design elements are to “address” the street frontage/s. Relevant Acceptable Solution A4 states that no part of a building of two storeys or more above the ground level will be built substantially across or near the 6m building line of the principal frontage of a site, including frontage shown as a “desirable continuous frontage” on the precinct plan. It should also be noted at this point that there is a desirable continuous frontage denoted on Map A referable to relevant frontages both on Cairns Street and Lambert Street.

Although the Performance Criteria designated “Views and Vistas” is inapplicable, the note to the relevant Acceptable Solution A5 indicates that a request for a “view analysis” may be made for any application for development on a site that is within 50m of the Brisbane River and not affected by the limits on height to retain views from or to the Story Bridge.

For boundary clearances, separation and privacy, Performance Criterion P6 states that building setbacks must ameliorate the impacts of buildings on adjacent buildings, and maintain high levels of amenity of dwelling units for people within the “planning” unit, on adjoining sites, and in the public domain.

Finally, “storey” is defined in Chapter 3 as a space within a building which is situated between one floor level and the floor level next above it “and commencing at ground level”. It does not include, for instance, a space that contains only a lift shaft. The definitions set out in Chapter 3 are stated to be included for the reason, among others, “to provide an explanation of the meaning of terms used in the Plan” (i.e. the CP2000).

Other aspects of CP2000

Chapter 2, besides outlining city wide strategies to achieve city wide DEOs (which include 3.2.2.4 and 3.3.2.2 sets out the Elements of the City (which provide physical form to such DEOs and supporting strategies). Residential Neighbourhoods are discussed, as follows:

· in 4.2.1: the identified challenge, among others, is stated to result from the increasing interest being “shown in inner city living”, with this trend being “assisted by a renewed interest in and focus on the Brisbane River” and, in common with the rest of Australia, “the composition of households is changing through changed economic conditions, lifestyles and demographic trends” such that, if people “are to be able to choose the kind of dwelling that suits their needs at different times in their life”, housing provision must reflect these changes, which leads to the specific “challenge for the City” to ensure a “sufficient supply” of residential land and housing that can, amongst other things, provide “a range of housing choices to meet the widening spectrum of needs and desires of the community” and “support the diversity of people and activities that contribute to a broad social mix in the City and therefore to its character and liveability”;

· in 4.2.2: the response to the identified challenges refers to residential neighbourhoods being the “most extensive of the City structure elements”, such that the components of the residential neighbourhood’s strategy are to, amongst other things: meet “realistic expectations” of future amenity; ensure housing choice and affordability; and promote “increases in density near high quality public transport and close to the City Centre”; and “maintain character”;

· in 4.2.2.1: the response specifically addresses meeting realistic expectations of future amenity and includes the “prevent(ion)” of the intrusion of development that could “seriously detract” from “residential amenity” and the “mitigat(ion)” of the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy, with such “realistic community expectations” having a need to be “balanced” with “expectations” of housing choice “to meet resident needs during all stages of their life and to meet different lifestyle choices”;

· in 4.2.2.2: the response is to include such residential neighbourhoods providing sufficient housing choice to enable residents to remain in their neighbourhood through all stages of their life if they wish and that housing “choice requires a variety of housing types and tenures to be available across the City and to enable access to housing for a wide range of income levels”;

· in 4.2.2.3: the response states that high density housing in residential neighbourhoods is to be in locations that can be efficiently served by high quality public transport or “that are close to the City Centre” and that high density housing is “encouraged” in and around centres and institutions with large numbers of clients, employees or students and services and facilities, forming part of a proactive approach to planning for mixed use higher intensity nodes well integrated with the Movement System, particularly “pedestrian, bike and public transport networks”;

· in 4.2.2.4: the response states that each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the city, topography, vegetation, social composition, history and proximity to a local centre and that development “should respect and be compatible with the local character”;

· in 4.4.2.2: concerning strategies for “Multi-purpose Centres” – it being noted that proximate to the Site is the Dockside Town Centre and the Community Convenience Centre Precinct, as well as the CBD - the response to the relevant challenge concerning such centres is that such centres “will increasingly act as the focal points” for, amongst other things, higher density residential locations; and

· in 4.5.2.1: concerning the City’s Movement System, after noting the “challenge” and the general “response”, it is stated that the identified major elements are integrally linked with other elements of the CP2000, which aim to improve transport outcomes “through better land use planning”, including provisions that: “encourage high residential densities in locations with high accessibility to public transport; encourage the provision of bikeways and pedestrian ways, linked to Centres and to public transport”; and “support more efficient use of land in residential development”.

Aspects of CP2014

The Kangaroo Point peninsula neighbourhood plan map NPM–011.1 shows the subject Site to be within precinct NPP-001 (which is designated “Residential”). Cairns Street forms its northern boundary and its south-eastern boundary is the western side of Park Avenue.

Figure (g) contains an identification of an “area with height limits to protect views”. This appears to be almost identical to the one in Map A in the CP2000.

Under Table 1.2.1, dealing with zones and precincts, it is noted that the residential zones category identified as “high density residential” contains two precincts, one of an up to 8 storeys zone precinct and one of an up to 15 storeys zone precinct. Table 5.5.4 deals with the level of assessment for high density residential zones. Where a neighbourhood plan does not “specify” building height, the zone height applies. That is dealt with, in detail, at 6.2.1.4 (concerning the high density residential zone code). In particular, the purpose of this code is to provide for a range of well-designed, location-responsive, high density, medium to high rise multiple dwellings of “up to 15 storeys” in well-located parts of the city, suited to a diverse community and capitalising on the high density residential zones, strategic location and amenity, and proximity to key destinations: see s 6.2.1.4(2)(b). The specified purpose of the code “will be achieved through overall outcomes” for (besides “development location and uses” and “development form”) those precincts, relevantly, of an up to 15 storeys zone precinct: see s 6.2.1.4(3)(c). It is further stated that the “development location and uses” overall outcomes are that development meets the building height “requirements” of the “multiple dwelling code” or “an applicable neighbourhood plan”: see s 6.2.1.4(4)(i).

The “development form” overall outcomes are that development for a residential building is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the high density residential zone and the relevant zone precinct, and is consistent with the “location-specific provisions in a relevant neighbourhood plan”: see s 6.2.1.4(5)(a). An “up to 15 storeys zone precinct” overall outcome is for development that provides a residential building that has the “greatest height and density” in the city outside the Principal centre zone: see s 6.2.1.4(7).

Part 7 deals with neighbourhood plans. Under 7.2 (dealing with neighbourhood plan codes) is 7.2.11.1 which covers the Kangaroo Point peninsula neighbourhood plan code (“KPPNPC”). This is the code applicable to the residential precinct “Kangaroo Point peninsula neighbourhood plan/NPP-001”. With respect to “purpose”, the stated purpose of the Kangaroo Point peninsula neighbourhood plan code is to provide “finer grained planning” at a local level for the relevant “area”: see s 7.2.11.1.2(1). This purpose “will be” achieved “through overall outcomes including overall outcomes for each precinct”: see s 7.2.11.1.2(2). In particular, the overall outcomes for the Kangaroo Point peninsula neighbourhood plan include that the Kangaroo Point peninsula neighbourhood plan area is a convenient residential area “where higher density living is more prominent than in many other parts of Brisbane”: see s 7.2.11.1.2(3)(a). Another overall outcome is that views “to and from the Story Bridge are protected” and that buildings are of a height and scale that maintain the dominance of the “city centre skyline” and the significance of the Story Bridge to the “inner-city skyline”: see 7.2.11.1.2(3)(d). Also, the overall outcomes include one that views are available to “most” residents in the neighbourhood plan area: see s 7.2.11.1.2(3)(e). Again, the overall outcomes include one that development is of a height, scale and form which is consistent with the amenity and character, “community expectations” and infrastructure assumptions intended for the relevant precinct, sub-precinct or site, and is “only developed” at a “greater” height, scale and form “where there is both a community need and an economic need for the development”: see s 7.2.11.1.2(3)(f). Particularly with respect to the relevant residential precinct NPP-001, the overall outcome is that this precinct contains high density residential development with a building size and bulk, built form and layout that maintain views “to and from” the Story Bridge and the Brisbane River. That precinct covers not only the subject site but also substantial areas identified in Figure g as areas “with height limits to protect views”. What were “Vistas” in the CP2000 are now designated “View corridors”; but still do not bear upon areas other than those that are close to the Story Bridge and its southern exit.

Table 7.2.11.1.3.A states the criteria for assessable development. Dealing with performance outcome P01, it states that development is to be of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:

· by (a), consistent with anticipated density and assumed infrastructure demand;

· by (b), aligned “with community expectations about the number of storeys to be built”;

· by (d), designed to avoid a significant and undue adverse amenity impact to adjoining development.

The relevant acceptable outcome A01 is for development that ensures that the number of storeys and building height comply with Table 7.2.11.1.3.B. Thus, it leaves open an argument that this neighbourhood plan does not “specify” a building height, being simply dealt with in an “acceptable outcome”. In turn, that table, referable to development of a site on the eastern side of the Bradfield Highway which is south of Cairns Street, states that the number of storeys is 10, although the building height is “not specified”. This is in contrast to the adjoining Dockside precinct contained in plan NPP-004, particularly the dockside D1 sub-precinct (which has the number of storeys at 10 but the building height at 30m) and the dockside C1 sub-precinct (which also has the number of storeys at 10 and the building height at 30m).

Proposed development

Metro contends that the approved plans show a 20 storey development. As has been observed, under the CP2000 the definition of “storey” is linked to the term “ground level”, though the definition itself appears to be more directed towards subdivision. Since the building which provides the controversy faces Lambert Street, since its principal pedestrian access is from Lambert Street, and since that access is directly onto the base of the building, it is not – in the absence of any definition requiring any other conclusion – other than practical to describe it in a meaningful way as a 20 storey tower.

Nevertheless, acknowledging that the quite significant change in levels on the Site may add to any potential difficulties, and since the exact number of storeys does not have to meet any precise measurement for present purposes, I accept that the reduced level measurement (“RD”) provides the best way of comparing existing buildings, particularly those on the Kangaroo Point peninsula. The Site itself is large in the context of Kangaroo Point.

From the town planners’ joint perspective: the proposal has a GFA of 17,408m²; it contains 214 units; the maximum height of the building is 83.15m AHD to the top of the lift overrun; the roof of the rooftop plant and private terraces is some 2.4m AHD lower; and the plot ratio of the proposal is 5.29.

I accept Metro’s summary of its proposal as appearing in the town planning joint expert report (“JER”) as:

· incorporating a podium containing seven two-storey “town homes” facing Lambert Street;

· showing that the podium contains the entry lobby for the apartments and other facilities including reception, manager’s office, mail room, communal meeting room, residents’ gym, bicycle storage and 9 apartments;

· having, above the podium, a tower containing the remaining 205 apartments;

· having a dwelling unit mix of 121 one bedroom apartments, 81 two bedroom apartments, 1 two bedroom town homes, 5 three bedroom apartments and 6 three bedroom town homes;

· a rooftop plant room and 3 rooftop terraces;

· having car parking provided in the basement with access from Cairns Street; and

· having setbacks which are described in detail in the town planning JER (set out in paragraph [4.1.11]).

The details of the Council approval of the DA involved the following recommendations to Council:

· that the proposed frontage setback met the Performance Criterion by being in keeping with the existing streetscape and building articulation, with design elements that addressed the street frontage;

· that the town homes enhanced the existing character and scale of the streetscape;

· that the tower provided sufficient articulation and design elements to address the Lambert Street frontage;

· that the proposal achieved development of the highest standard with a well‑articulated tower;

· that the proposal met Performance Criterion P2 of the KPPLPC; and

· that the building height was supported, based upon the town home design responding to the residential scale of the streetscape, and the tower responding to the city skyline.

The BCC’s grounds for approving the application were that the proposal:

· was consistent with the general intentions of the CP2000;

· advanced the intent and development principles of the KPPLP;

· would not detrimentally affect the amenity of the neighbourhood;

· contained land which was within close proximity to public transport networks; and

· did not cause conflict with the state planning policies, planning regulation provisions or the SEQRP.

Issues

Apart from issues of interpretation (which obviously affect the remaining issues), the following issues remain in contention at a primary level:

(a) whether the BCC’s approval conflicts with the CP2000; and

(b) if so, whether there are sufficient grounds to justify the approval, despite the conflict.

Those primary issues necessarily incorporate the issue as to the regard, or weight, to be given to the CP2014, in light of any inconsistency with its provisions.

The Association, after referring to both the Notice of Appeal filed on 17 January 2014 and the Further Grounds of the Appellant dated 19 February 2014 – acknowledging that a small number of those issues had been resolved prior to hearing – summarised the remaining issues as:

(a) height;

(b) bulk and scale;

(c) streetscape;

(d) character;

(e) views;

(f) setbacks;

(g) other specific amenity impacts (including shadowing);

(h) reasonable expectations;

(i) intangible amenity;

(j) nature and extent of conflict; and

(k) grounds.

The JER of the town planning experts states that the following remain relevant in the CP2000:

(a) in Chapter 2 – Strategic Plan:

(i) desired environmental outcomes (“DEOs”) and city wide strategies to achieve the DEOs: 3.2.2.1, 3.2.2.4, 3.3.2.2, 3.3.2.4, 3.5.2.1, 3.5.2.2;

(ii) Elements of the City for Residential Neighbourhoods: 4.2.1, 4.2.2, 4.2.2.1, 4.2.2.2, 4.2.2.3;

(b) in Chapter 3 – Areas and Assessment Processes:

(i) Impact Assessment: 2.5.2; and

(ii) High Density Residential Area: 5.5.3, 5.6;

(c) in Chapter 4 – Local Area Plan (being the Kangaroo Point Peninsula Local Plan):

(i) Development Principles 2.4, 2.5 and 2.7;

(ii) Performance Criteria P2, P3, P4, P6 and P9;

(d) in Chapter 5 – Codes and Related Provisions:

(i) Residential Design – High Density Code: the Purpose, and P2 and P3.

Concerning the CP2014, that JER states that the following remain relevant provisions:

(a) in Performance Outcomes: PO1, PO2, PO3, PO4, PO6 and PO8;

(b) in Overall Outcomes: 7.2.11.1.2(3)(d), (e), (f) and (g);

(c) in Table of Assessment: 5.5.4 (High Density Residential Zone);

(d) in Zones: 6.2.1.4 (High Density Residential Zone Code);

(e) in Strategic Framework:

(i) Theme 2 – “Brisbane’s Outstanding Lifestyle”;

(ii) Theme 5 – “Brisbane’s City Shape”.

Interpretation of policy, plans and schemes

A useful starting point for such interpretation is to consider the approach of de Jersey CJ, with whom Muir JA and Douglas J agreed, in Stockland Development Pty Ltd v Townsville City Council & Ors.[1] There, after noting that the first instance approach to the application of the scheme to the developer’s proposal involved “a correct interpretation of the language of the scheme” and “a factual conclusion as to the absence of conflict”, de Jersey CJ stated that it was a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which should characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: at 324 [25]-[26].
[1] (2013) 195 LGERA 317.

But that approach does not mean that the same general principles which apply to statutory construction do not apply to the construction of planning documents. This was the concern of the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors.[2] There, Morrison JA, with the concurrence of McMurdo P and Douglas J, authoritatively stated that the correct approach to statutory interpretation must begin and end with the text itself, while at the same time bearing in mind that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, using “context” in its widest sense: at 95 [55] (with citations omitted). Where the flexibility and fluidity must then occur, consistently with Morrison JA’s analysis, is by appreciating that such documents need to be read in a way which is practical, to be read as a whole, and to be read as intending to achieve balance between outcomes: at 95 [56]. In this understanding of such need, Morrison JA expressly adopted statements by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council,[3] to the effect that: planning schemes, and the definitions found in them, often lack clarity, contain ambiguities, and sometimes appear contradictory; and attempts to make sense of them gives rise, on occasions, to “expressions of judicial exasperation”: at 96 [57].
[2] (2014) 201 LGERA 82.
[3] [2013] 1 Qd R 1.

Noting that s 326 in SPA refers to both “grounds” and “conflict”, the latter must be, as the authorities require, “plainly identified” and the former has the wider aspect of, simply, “grounds” which now prevails in the SPA. As defined in Schedule 3, it means matters of public interest but does not include personal circumstances of an applicant, owner or interested party.

In dealing with the issue of justification in the contest between “sufficient grounds” and “conflict”, the Court of Appeal has, again, recently weighed in on what had been an ongoing debate about what Weightman v Gold Coast City Council[4] stands for. In Lockyer Valley Regional Council v Westlink Pty Ltd[5] Holmes JA, with White JA and Atkinson J (the original proponent of the approach) agreeing, announced that there was no warrant in the provision itself for applying different weight to different grounds, because to do so would be to impose an entirely artificial set of fetters on the decision-making required, with the importance of the ground depending on what it is and not where it falls in the three-step approach: at 322-323 [21].
[4] [2003] 2 Qd R 441.
[5] [2013] 2 Qd R 302.

An understanding of what looms large here (namely, a resolution of the way in which the specific provisions of the Acceptable Solutions, in particular, have any role to play in the finding of whether relevant Performance Criteria are complied with) was dealt with in SDW Projects Pty Ltd v Gold Coast City Council.[6] Although this was a decision of this Court at first instance, the Court of Appeal’s understanding of the propositions enunciated in the decision obviously bear upon that resolution. In SDW Projects, Rackemann DCJ canvassed the code provisions of the planning scheme under scrutiny which he identified as being similar to other codes in other statutory planning schemes. The similarity of the code here to there gives especial importance to his conclusions. He held that while acceptable solutions indicate a “desirable” way to “ensure” compliance, they are not the “only” solutions and that this is to be contrasted with performance criteria which are, generally, outcome focussed and, generally, ought not to be interpreted as requiring adoption of the acceptable solution “or even as requiring an alternative solution to be akin to the acceptable solution”: at 30 [47]. Additionally, he held that it is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code, noting that, under the performance based approach, the acceptance of an alternative solution does not represent a “relaxation” or a “dispensation” but rather is another way of achieving compliance with the relevant performance criterion: at 30 [48].
[6] [2007] QPELR 24.

In K Page Main Beach Pty Ltd v Gold Coast City Council & Ors,[7] Rackemann DCJ relied upon his earlier exposition, amongst others, in SDW Projects: at 412 [36]. Another such authority was WBQH Developments Pty Ltd v Gold Coast City Council & Anor,[8] on appeal. There, Fryberg J, speaking for the Court, stated that what the judge at first instance had written was “undoubtedly correct” in concluding that compliance with acceptable solutions “is not mandatory”: at [35]. Nevertheless, it is important to understand that it was further held, in that appeal, that the existence of a relevant “intent” does not conclude the question of conflict, which necessarily follows from the fact that compliance with performance criteria will satisfy the provisions of the code, notwithstanding non-compliance with a corresponding acceptable solution: at [37]. He added the further rider that, while the weight to be given to such an intent may be small, it is the task of the judge to evaluate all relevant matters in the exercise of the judgment of this specialist court: also at [37].
[7] [2011] QPELR 406.
[8] [2010] QCA 126.

The main decision in the Court of Appeal in K Page Main Beach is Gold Coast City Council v K Page Main Beach Pty Ltd[9] was given by de Jersey CJ, with whom Muir JA agreed. Chesterman JA agreed with the conclusions of the Chief Justice and the orders that he proposed. In his analysis of the primary decision, de Jersey CJ observed that the approach taken by the Gold Coast City Council (which had refused the primary application and which had applied for leave) “verges” on presenting the designated height, provided in an overlay map, as “a controlling constraint rather than as a guide” – while specifically noting that the applicant would disclaim such a position: at 59 [20]. Importantly for present purposes, he went on to note that the planning scheme “could have mandated that position, but has not, and has chosen to leave undefined the extent to which height should feature in the process of impact assessment”: also at 59 [20]. In particular, de Jersey CJ referred to Fryberg J’s decision in WBQH Developments (noting that other members of the Court had concurred): at 60 [24].
[9] (2011) 185 LGERA 55.

Interpretation of some contentious CP2000 Provisions

Before embarking on a determination of what Development Principle 2.5 (concerning views) means by such being “available” to “most” residents, it is necessary to resolve the meaning of the immediately previous Development Principle 2.4 about views “to and from” the Story Bridge. In context, 2.4 as a whole must concern all of the KPPLP area, since this principle extends to dealing with the relationship between such an area and city centre (and inner-city, to the extent, if any, that it is different) skyline.

The first aspect of this anterior question then is what is meant by “locality”. Given that the particular concern is with the “Local” plan dealing with the whole of the Kangaroo Point peninsula, it must lead to the resolution that the locality is the whole area that this specific Local Plan embraces. This is, agreeably, consistent with its context.

The later use of “locality” in Development Principle 2.7 [that proposals are to be responsive to their site, adjoining development, the locality and the City (together with the environment as a whole)] shows that the concern there is with an increasing scale of area, in which “locality” is totally consistent with the resolution just expressed.

Any attempt to read down “locality” where it appears in Performance Criteria P2 and P3, in the absence of any more specific elaboration in those Criteria, would appear to negate the initial Development Principle 2.1 which acknowledges that (presumably the whole of) the “Kangaroo Point Peninsula” is a convenient residential “area” in which people live “at higher densities than in most other parts of the City”. Hence, the reference in Performance Criteria P2 to the “high density nature” of the locality is simply a reference to the fact that the peninsula contains High Density Residential Areas, at the very least insofar as it involves the Residential Precinct. That precinct, from Map A, includes not only the area south of Cairns Street but also the area adjacent to, and under, the Story Bridge structure itself. As the precinct intent for the Residential Precinct states, this precinct is “intended” for “high density residential use” in accordance with the KPLPC and “design criteria” of the RD-HDC. For what moment it has, the expression is used differently by Mr Olsson and Mr Buckley, on one part for the Association, and Mr Brown, on the other part for Metro. Quite obviously, their individual views can, at best, be only an indicative feature of the way that such “experts” commonly use them. But the very nature of their dispute shows, at its base, ambiguity and therefore needs an interpretative solution.

The next matter is the use of the differing expressions “city centre skyline” and “inner-city skyline”. In Development Principle 2.4 both terms are used. Where a word is used consistently in legislation, it should be given the same meaning consistently; and, in a complementary way, where different terms are used, the intention is to change the meaning: see Statutory Interpretation in Australia, Pearce and Geddes (7^th edition) at [4.6]. But as the text goes on to acknowledge, it is necessary to bear in mind that a change in language may be forced by context and that the approach to both ways is readily rebuttable: see [4.7]. The use of “dominance” concerning the city centre skyline and the use of “significance” (referable only to the Story Bridge) concerning the inner-city skyline appear to show that different considerations (but concerning the same skyline) are undertaken. The dominance referred to is that of the skyline of the buildings in the city centre (at times, designated as the CBD) as compared with buildings in the “locality” (constrained by scale and height in that usage). On the other hand, the significance, in terms of the scale and height of buildings in the locality, is of the Story Bridge in its visual association with the inner-city skyline. The use in Performance Criteria P2 and P3 of the slightly different term, the “city skyline”, appears to be nothing other than a reference to the skyline of the same “city centre” buildings. The reasons for this are not only the reference in Development Principle 2.4 to the dominance of the “city centre” buildings – reflecting the “purpose” of the KPLPC to ensure that development is “consistent with” such development principles – but also that the reference to “city skyline” buildings in both Performance Criteria P2 and P3 are preceded by almost identical wording, suggesting that at least between P2 and P3 there is a necessity for consistency. And that consistency extends to being consistent with Development Principle 2.4 because the relationship, which can only be visual, must be one of domination by the city centre buildings.

Again, to the extent that it matters, Mr Olsson for the Association, although at times vacillating in this view, finally concluded that at least the “city centre skyline” and “inner-city skyline” referred to the skyline of the CBD.

The next matter springs from the question: what does Performance Criteria P3 mean when it refers to “the vicinity”. While that, to some degree at least, depends upon how the whole of P3 can be deconstructed into its individual sub-components, the use of a term which is different from “locality” must distinguish it to some extent from that latter term. Quite obviously, it depends on context: see Emerald Developments (Aust) Pty Ltd v Brisbane City Council[10] at 440 [11]. The context here is determining the nature of “skyline envelope” formed by linking the tops of existing, or prospective, buildings of a particular kind. That specific context suggests a narrower meaning than “locality”. Even so, is the limit to be determined by simply looking at the carved out southern part of the Residential Precinct? There is no particular reason why it should, because the KPLPC in 5.1 simply refers to the Local Plan area “General(ly)” (while appreciating that the other “building” precincts are separately considered). I therefore conclude that all existing, or prospective, buildings are in the vicinity if they have a proximate relationship with the “new” building under scrutiny. Acceptable Solutions A3.1 to A3.4 do not undermine that conclusion. Besides being acceptable solutions only – with all that entails – the different solutions do not, for instance, cover all areas in Map A which are within the Residential Precinct.
[10] [2003] QPELR 438.

As earlier foreshadowed, Performance Criterion P3 needs to be parsed (while recognising the limitation on any overly strict grammatical construction). This is because of the necessity to determine what part of P3 is associated with another part, or other parts.

From Metro’s perspective, the maintenance of views to and from, the Story Bridge apart, the remainder of P3 is contended to be the alternative limbs of either a new building not extending significantly above the skyline envelope or a new building being of a size and bulk consistent with high density and being of a relevant residential scale. That puts the comma – which is the only one in all of those words – as the break point between those two alternatives.

For its part, the Association appears, in its final submissions, to accept that the maintenance of views applies to all limbs but seeks to associate the remaining part of P3 which is before the comma with the last clause of P3 and have the whole of that part after the comma as the second alternative limb.

To start with, the reference to the maintenance of views must be seen as a different component from what follows. Therefore, it is the first limb. If so, such a new building “must” comply also with what then follows, or at least some part of it. One possible construction, given the similarity between the words that follow the comma and the words that appear in the Performance Criteria P2, when taken in conjunction with Acceptable Solution A2, is that the true alternatives are those that comply with an associated Acceptable Solution or those that would fall within P2 – though this time not in a consideration of GFA but, rather, “Building Height”. It is not possible, despite contentions to the contrary, to ignore the headings to P2 and P3, respectively - and so much is obvious when one has reference to the Acceptable Solutions to each. A2 clearly refers to GFA and A3.1 to A3.4 (inclusive) definitely refer to “height”. Undoubtedly, in the end, both are relevant; but each has its own part to play.

But, given that P3 involves a determination of building height in terms of performance criteria, I find that the skyline envelope can only have a relationship with existing buildings or with prospective buildings where the latter comply with an associated Acceptable Solution, because otherwise it would be necessary to look at that envelope in terms of all existing or “prospective” buildings that had already so complied or would do so. If that were to be the meaning then it would be ignoring the reality of existing buildings that have complied, instead, with the Performance Criteria or the requirements of previous Plans. It makes no sense to ignore them - and to the extent that historical development of such provisions is an aid, the 1987 KPPDCP, by 3.5.4(a), separated “existing” from “prospective” buildings. That would then, being totally before the comma, become the first alternative of the second limb.

The consequence of that interpretation is that it is unnecessary to look at the skyline envelope if the building here fits P3, in its second alternative of its second limb.

The last matter that arises for interpretation is the difficult one of what is meant by “views” when the term is used in different parts of the KPPLP.

In Development Principle 2.4 such views (which are those to be “protected”) are limited to those “to and from” the Story Bridge.

In Development Principle 2.5 views (expressed in an unqualified way) are to be “available” to “most residents”.

And in Performance Criteria P3 the particular views “must” be “maintain(ed)”, though such are views “to and from” the Story Bridge, again.

Some assistance is able to be extracted from Map A. It must be of some significance that it identifies an area “with height limits to protect views” (emphasis added). It cannot be ignored that, for that area so identified, both previously, and subsequently, it was also so designated. As for earlier, Plan 2 in the 1987 Kangaroo Point Peninsula Development Control Plan used words which are strikingly similar. Additionally, an “aim”, as can be seen by a particular overall objective and a particular intention, was stated to recognise both the importance of the Story Bridge as a city landmark and the relevance of the peninsula on the “skyline” of the city “by protecting certain views of that area and moderating the height of development”. As for after, CP2014, in Figure g, using the identical words of Map A, designates exactly the same area surrounding the southern exit of the Story Bridge along the Bradfield Highway.

Both “protected” and “protect” resonate with earlier decisions which use a close analogue (namely, “preserve” or its derivatives). An example of this is Robinson v Brisbane City Council & Anor[11] where Quirk DCJ, an experienced Judge of the predecessor to this Court, undertook an historical examination of the Kangaroo Point area and noted that on 15 November 1983 the BCC had formally adopted a policy resolution that read, in part, that “the existing views from the Story Bridge to the Central City and Brisbane River are of very great significance to the City and should be preserved”: at 73. Of course, that provides nothing more than a permissible reference point in the development of the legislative history relevant to these provisions: see Hope & Anor v Brisbane City Council[12] at [25]. But it has significance in the interpretation of the otherwise extraordinarily wide potential “meaning” of such “views” in Development Principle 2.4 and Performance Criteria P3, and in giving context to Map C in Acceptable Solution A3.1. Contrary to the Association’s submissions, I do not conclude that the structure of the 1987 KPPDCP with its different wording, but similar approach to certain views being protected and retained and other views being provided, is not a useful historical aid of the relevant kind.
[11] [1987] QPLR 71.
[12] [2013] QCA 198.

That approach does, as Metro has contended, have particular resonance with the “note” to Performance Criterion P5; and, therefore, an absence of “anticipated difficulties”. P5 does not otherwise arise for consideration here.

What is the outcome of such an analysis? Aided by Map A, in particular, though also by Map C (entitled “Maximum Building Heights”), it is a principled construction to interpret the “protection”, or “maintenance”, of views “to and from” the Story Bridge as relevant to views along a generally east-west sight line (i.e. to and from both sides of this Bridge), with particular reference to such views to and from the CBD. By examples such as the absence of any reference to “residents” (such as in Development Principle 2.5), it is not confined to residents. But, this is not to downplay the importance of views to and from the Story Bridge for observers in nearby suburbs such as New Farm or for people walking, or riding, or taking ferry rides along, or on, the Brisbane River - in fact, it is entirely consistent with that interpretation.

The notion that views of themselves are not protected unless by statutory intervention, whether that be by primary or subordinate legislation, is inherent in the Common Law: see Hunter & Ors v Canary Wharf Ltd[13] at 685. An examination of it was undertaken by Robin QC DCJ in Calvisi & Ors v Brisbane City Council & Ors.[14] He expressed the following opinions:
[13] [1997] AC 655.
[14] [2009] QPELR 35.

· no person has the right to a view from one’s property in Australian (or British) law;

· it is very much open to question whether it is possible for there to be any right corresponding with the Roman law “servitude of unrestricted view”; and

· in our own time (citing quoted authority), it has been stated that “a man is entitled to build on his own land ... may spoil his neighbour’s view”;

: at 39-40 [13-14].

Thus, if there is to be a restriction on that Common Law position, it must be stated with some clarity. A blanket conclusion that all views from anywhere to and from the Story Bridge are to be protected (or maintained) does not work on a practical level. This is obvious from the very fact that Acceptable Solution A3.2 permits the erection of a building on this very land up to and including ten storeys. Paraphasing the conclusion reached by Robin QC DCJ on somewhat similar wording in Calvisi, on an analysis of all relevant CP2000 provisions, any expectation that a particular Acceptable Solution would be satisfied is ill founded, since the particular Performance Criteria cannot be construed as “pursuing” intact all relevant views which “could be enjoyed across or around a building complying with” that Acceptable Solution: at 55 [48]. Additionally, as a practical measure, buildings erected on various parts of the Dockside Precinct will, inevitably – as they did in the past – restrict views, sometimes obviously severely, that residents to the south of them (i.e. within the southern Residential Precinct) might previously have had of, or to, the Story Bridge. As for a resolution of Development Principle 2.5, particularly when the availability is restrained by “most”, that must be satisfied here, both because of the matters just canvassed and because no evidence has been led of the likely unavailability of “views” simpliciter, in the context where Kangaroo Point is effectively surrounded on 3 sides by the Brisbane River and is close to the CBD and New Farm and where, at worst, some residents will lose part of their panorama.

It is my alternative conclusion that, particularly given the actual evidence in this case, the very limited number of views - and those being simply of residents or their guests and not numerous other members of the public - that would be affected by such a building exceeding 10 storeys on the Site, such as to the upper levels of “Rivera Gardens” and of the “Story Apartments”, engenders a conclusion that the proper interpretation of protection and maintenance of views does not extend its protection that far. But, if views of that kind were to be within the grasp of those provisions, then, for reasons later developed, there would be, still, sufficient grounds to justify the decision, particularly given the relative insignificance of that conflict, in particular.

Weight given to BCC’s approval

In Scurr v Brisbane City Council[15] Stephen J, with whom Barwick CJ, McTiernan, Menzies and Gibbs JJ agreed, outlined the principle that a decision on a planning issue was one to which the Court “would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority”: at 257.
[15] (1973) 133 CLR 242.

In this Court in Wingate Properties Pty Ltd v Brisbane City Council[16] Brabazon QC DCJ identified the Scurr principle as permitting “weight” to be placed “on an approval by a local authority, as that represents an expression of the views of the response of the planning authority”: at 276 [22]. Earlier, in R v Brisbane City Council; ex parte Read,[17] in the then Full Court, McPherson J (as he then was) remarked that the principle did give rise to a consideration of the weight to be attached to the relevant Council decision: at 28.
[16] [2001] QPELR 272.
[17] [1986] 2 Qd R 22.

More recently, local first instance decisions applying the principle were made by Robin QC DCJ and Robertson DCJ in Mackay Shopping Centres Pty Ltd v Mackay Regional Council[18] and Friend v Brisbane City Council,[19] respectively.
[18] [2013] QPELR 661.
[19] [2014] QPELR 24.

Nevertheless, as remarked by Robin QC DCJ in Mackay Shopping Centre, what counts, in the end, is the persuasiveness of the Council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears: at 689 [44].

It should be noted that the BCC, as the “responsible planning authority”, has made submissions which are distinctly harmonious with those made by Metro. That regard is recognised.

Need

At least under the CP2000, it is necessary to understand that, for need to be found, the “basic assumption” must be proved that there is in existence at the time of the application a latent unsatisfied demand on the part of persons affected by the planning scheme which has not been met at all, or is not being adequately met, by the scheme (in its present form): referred to by Carter DCJ when considering a number of earlier decisions, particularly with respect to rezoning, in Indooroopilly Golf Club v Brisbane City Council[20] at 34-35. He added, with reference to identified authority, that there is a relationship between the existence of a demand and the satisfaction of a need: at 36. Later, in Roosterland Pty Ltd v Brisbane City Council,[21] it was held that need, in planning terms, is a relative concept, “not connoting present urgency” but rather relating to the “general well-being of the community”: per Skoien DCJ at 517. It was added that it is not the sole, or even the most important, criterion to be considered and must yield to the decisive effect of amenity and other town planning considerations: also at 517, referring to Skateway Pty Ltd v Brisbane City Council.[22]
[20] [1982] QPLR 13.
[21] [1986] QPLR 515.
[22] [1980] QPLR 245.

In the Queensland Court of Appeal decision in Intrafield Pty Ltd v Redland Shire Council[23] – considering those decisions just mentioned, amongst others - it was held that such cases indicate that need is “a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account”: at [20]. In the circumstances there considered, the findings (said “to be open” as not supporting a conclusion of satisfaction of the requirement of need) were that the existing facilities were adequate and that the proposal would do no more than give a choice which some might choose to avail themselves of: at [20]-[21].
[23] [2001] QCA 116.

Height/ Size and Bulk

Metro contends that the argument that the reference to the 10 storey height limit at the Site is to be part of the consideration undertaken in determining whether there is an applicable Performance Criterion is “incorrect”. This argument of the Association is based upon the notion of planning “intent”. The Association’s argument is that such an intent is made clear by a range of provisions included in the “higher order provisions” of the CP2000 and then “cascading through to the more specific provisions contained” in the KPPLP.

The response by, primarily, Metro is that that reference to 10 storeys in the relevant Acceptable Solution is itself an indicator that a building with more than 10 storeys “does not involve any necessary conflict”.

Before dealing with the extent to which any such planning intent impacts on the resolution of this issue, it is necessary to consider other aspects of the many references to height contained in the various documents. The context is one of “high density residential” area and use.

The following conclusions can be drawn with respect to the references to 10 storeys in the High Density Residential Area provisions (including those incorporated by reference) in the CP2000:

· the KPPLP, in Chapter 4, “prevails” where it conflicts with the “requirements” of the CP2000;

· the expressed Residential Precinct “intent” in the KPPLP is that this precinct is intended for high density residential use in accordance with KPLPC and the “design criteria” of the RD-HDC; and

· in determining the applicable “design criteria” in the RD-HDC, there is no explicit adoption of the plot ratio and maximum height limitations which are otherwise expressed in the “Intent” which is expounded in Chapter 3 of the CP2000 concerning the High Density Residential Area (contained in 5.6.1), noting that the RD-HDC itself is in Chapter 5 and that, in contrast with its Acceptable Solutions A2.1 and A2.3, Performance Criterion P2 refers to “building size” being “consistent with” it, only.

What, then, are the relevant “design criteria” in the RD-HDC? It seems reasonably obvious that the use of “criteria” directs attention to the relevant Performance Criteria in the RD-HDC insofar as they can be attributed to matters of design. In any close scrutiny of RD-HDC, specific reference to 10 storeys is not contained in any Performance Criteria but, rather, appears - as just seen - in Acceptable Solution A2.3 to Performance Criterion P2 and in the “purpose” of this Code. An approach to distinguishing between criteria and solutions must be correct, because of the use of “criteria” as the relevant expression. Although the RD-HDC contains “design” in its title, its incorporation by the KPPLP could, if it wished to include everything in this Code, simply refer to the Code itself, without any qualification - which, clearly, it does not, unlike its associated reference to the KPLPC. Given that approach, it is difficult to see that any reference in the discussion of the “purpose” of the RD-HDC is a “design criterion”, since the stated purpose is to “effectively manage impacts of the new development on neighbours” while “facilitating” development of “not more than 10 storeys in height” and “while” “encouraging attractive buildings of a size, intensity and appearance consistent with the High Density Area” (emphasis added, because of its resonance with KPLPC’s P2, particularly in the context of alternative Performance Criteria taking precedence over all the Codes in Chapter 5).

Turning, then, to possible design-based Performance Criteria in the RD-HDC, it should be noted that both its Performance Criteria P2 and P3 are within a separate section dealing with “building size and orientation”, whereas later Performance Criteria (specifically P7 to P14, inclusive) are within a section headed “building appearance and setting”. But, perhaps, too much should not be made of that difference.

Considering Performance Criterion P2 (which states that building size must be consistent with the “intentions for the Area”), first, the area must be the HDRA and the “intentions” for it may, arguably, incorporate the “Intent” in Chapter 3 dealing with such areas. But the problem with that is that any adoption of the express references to height (or to plot ratio) still has the eventual effect that the “precinct intents” of the KPPLP prevail to the extent of conflict. This conflict would exist because, while Acceptable Solution A3.2 in the KPLPC refers to not exceeding 10 storeys, its corresponding Performance Criterion P3, given the cases extensively surveyed earlier, can contemplate buildings which exceed such a limit but otherwise comply. In Hankamer v Brisbane City Council,[24] Searles DCJ, considering a not dissimilar provision, rejected an argument that a reference to the “intent” reflected an intention to impose an inflexible requirement generally, on the basis that such inflexibility was unwarranted, in circumstances where it was accepted that performance criteria applied: at 830-1 [116].
[24] [2013] QPELR 800.

To the extent that there can be discerned that some additional “intent” is shown (beginning with Performance Criteria providing a statement of what Acceptable Solutions must achieve, though to the intent for HDRA and to the Purpose in the RD-HDC, and on to the relevant Acceptable Solutions), the weight to be given to such an intent is clearly “small”, if only as a result of all of the analyses just undertaken (including that flexible language is used, such as “encouraging” and “facilitating”, in the absence of any prohibition). Therefore, it cannot be that any existence of any such relevant intent would conclude the question of conflict. If it were found to exist after so many sidelinings (perhaps from the side wind of community expectations), it would be simply a factor in the determination - and it would be a minor one.

Quite obviously this raises the issue of how far the DA complies with Performance Criterion P3 in the KPLPC – because, if it does not, then relevant conflict can emerge.

The expression “size and bulk”, as interpreted, are contained in both the Performance Criteria P2 and P3. I accept that the many photographs in Exhibit 7B, described as “base” photographs in Metro’s written submissions, demonstrate that the “vicinity”, as interpreted, contains many large and high buildings. Additionally, Exhibit 1, which places the proposed development on the Site in position, shows how it fits into the whole of the Kangaroo Point peninsula locality: see, also, Exhibit 30, page 1.

The photo montages in Exhibit 7B seek to visually place the proposed development on the Site in the context of visual observations from many different positions in the surrounding areas, both near to the Site and far from it.

I accept that the proposed development, in its podium/tower form, is arced on at least three sides by densely developed sites and that it is placed in a street block in which four other buildings (which are not small buildings) are situated. I also accept that the shape and slope of the land in its connection with Cairns Street allows for a basement car park where the entrance to it does not intrude upon the streetscape.

The evidence is that the height of the proposed building is RL 77.6 (to the roof terrace level). It is to be noted that the Rankeilor 2 approval has an RL of 70.6 and that it is wider in the top section of the building. The heights of other developments in this part of the precinct include: “Silver Quays” at 68.6; “Marquise” at 63.6; and “The Point Hotel” at 63.1. Additionally, outside the immediate Residential Precinct, heights of other buildings include: “Bridgeport Apartments” at 77.6; “The Docks on Goodwin” at 71.4; three “Dockside Towers” at 85.9, 86.9 and 75, respectively; and the prospective towers at “Dockside Gardens” at 73.4 and 67.8, respectively.

“Silver Quays” is described as a 17 storey building. Other buildings just noted, including those at Dockside, do exceed present Acceptable Solutions. In the visual amenity JER, Mr Olsson, called in evidence by the Association, described such buildings as “anomalous”, as did Mr Buckley in the town planning JER (although he used different wording).

This is consistent with the approach in Friend (per Robertson DCJ): at 45 [73].

The second limb of Performance Criterion P2 is that the building size and bulk retain an appropriate residential scale and relationship “with other buildings” on the city skyline. As earlier concluded, the city skyline is a term which is interchangeable with the inner-city skyline and city centre skyline.

The appropriate residential scale and the appropriate relationship must both be with “other buildings” on the city skyline. This follows from the almost identical use of similar words in Performance Criterion P3. There is no particular reason identified why they should address different concerns within the sub-set of concerns of each criterion. The focus is not on just one such building, as it is directed to a “relationship”.

Consequently, then, on such scale and relationship, the density of the proposed building on the Site (as exemplified by Exhibit 30, page 1) easily achieves such a scale and relationship with the city skyline buildings [which are identified on page 2 of Exhibit 30 (also being part of Exhibit 6)]. To the extent that there is a requirement for a “residential” connection, it can be seen from the very many “Apartments” referred to in that photograph that there is no concern that could be expressed of that kind.

Finally, what effect, if any, does the “design criteria” of RD-HDC have on Performance Criterion P2? Noting the “precedence” effect of the exclusion of the Codes of Chapter 5, the only specific reference to “design” (apart from “solar design” and “retaining walls”) in RD-HDC in its Performance Criteria is in its Performance Criterion P3 (which is that the appearance of building “bulk” must be “reduced” by “design elements”). Its reference to “Figures a and b” pick up, specifically in Figure a, the excluded “10 storeys” limitation, and in Figure b, building “height” minimisation aside, the building “length” being “broken up”. The proposed development in the DA, especially by the “town homes” incorporation, seeks to do that. In Acceptable Solution A5 in the RD-HDC, a number of “design” elements are mentioned. Again, to any extent they have relevance, aspects of them have also been introduced effectively.

To the extent that any additional “intent” - already discussed above - is discerned here (by reason of the cascading provisions on size and bulk down to their local application in the present planning instruments), again, its influence, given the primary attention to Performance Criteria, has the effect that its weight is small.

As to the weight to be given to the CP2014 with respect to Performance Criterion P2, I reach the same conclusion as I did concerning P3 (namely, that there has been no material departure in the applicable planning intent from under the CP2000). Thus, like P3, overall compliance with P2 is satisfied.

Setbacks, overshadowing and privacy

The matters of setbacks, overshadowing and privacy can be blended into this further discrete consideration of visual amenity. As Metro has submitted, the higher order provisions of both the CP2000 and the CP2014 encourage the development of high density residential buildings in this Residential Precinct. As noted, those provisions state that expectations are to be “realistic” and that housing choice and diversity are to be provided. Furthermore, it is only development which could “seriously detract” from amenity which is stated to be “prevented”. The BCC’s approval of Rankeilor 2 is also, as Metro contends, an additional factor.

In considering setbacks, the tower is not seen to be a problem. The focus is on the setbacks of the “town homes” that front Lambert Street. Metro acknowledges that those setbacks are between 0.00 metres and 6.27 metres from such frontage. Despite that, I accept that, from the perspective of the street, such homes are recessed “within attractive and interesting roof structures”. I also note that the conditions of approval require both landscaping to be carried out on the road reserve and the submission of a landscaping plan for approval by the BCC. The landscaping requirements in the Landscaping Code in the CP2000 have not been in issue in this case.

The Association has highlighted Acceptable Solution A4. The corresponding Performance Criterion P4 states that the building form must be in keeping with the “existing” streetscape and that “building articulation and design elements” are to “address the street frontage”. The definition of “streetscape” in the CP2000 is, as Metro contends, extremely broad. The definition begins by stating that it is the “collective combination of urban form elements that constitute the view of a street and its public and private domains”. The specific elements that are then identified as being included are: buildings, roads, footpaths, vegetation, median strips, open spaces and street furniture. In turn, the impact of such elements which “may” affect a streetscape are stated to include: scale and configuration of the built forms; the location and width of paths; the amount and type of vegetation; and the presence and location of activity modes. Intriguingly, “setback” is not a specifically identified “element” or “impact”.

From my own personal observation on taking a view of the Site, I am able to better understand the photographs that have been taken of the “streetscape” of, in particular, Lambert Street. I accept that it is diverse. As to the existing buildings, it includes some towers and other built forms which do vary widely in size, design and age. There are open car parks. There is some high fencing. The vegetation is variable. The setbacks range widely and include several buildings with some parts having close proximity to the street. There is, on occasions, a poor demarcation of public and private spaces and, as well, there are openings to undercover parking which indirectly face the street: see, for example, Exhibit 33.

Consistent with my view are the opinions of Mr Chenoweth and Mr King that there is a diversity of built form. Besides different heights and ages, they state that there is a range of styles, setbacks, landscaping and appearance, both when viewed from the street itself and from a distance. In summary, they opine that there is “considerable diversity”. As for addressing the street frontage, the town homes certainly do; and Exhibit 7B demonstrates that there is, from the perspective of the tower as well, a substantial addressing of the street frontage: see pages 61 and 62.

In a consideration of issues such as this, matters of fact, degree and judgment are involved: see Main Beach Progress Association Inc v Gold Coast City Council[27] at 690 [98].
[27] [2008] QPELR 675.

The requirement for building forms to be “in keeping with the existing streetscape”, therefore, is a fairly flexible concept insofar as it concerns Lambert Street (even if restricted to this particular street as a whole, because, if it were to be narrowed to the immediate area, there would be no logical restraint on surrounding streets not affecting such a “scape”). I accept the view of Mr Chenoweth and Mr King that the proposed town homes (which will be two storeys only) will enhance and enliven the streetscape, particularly with the podium/tower combination being setback further from the street. There is, also, no doubt that the building articulation and design elements of these town homes address the street frontage in a way that accords with a “continuous frontage”: see Map A. Since there is no imposed limitation of any six metre setback, in the particular circumstances here, I conclude that the street frontage does reflect “a scale consistent with detached dwellings in the locality”: see the visual amenity JER, per Mr King. I reject the contrary opinion expressed by Mr Olsson (when he stated that the “homes” do not reduce the overwhelming scale of the tower with its “degraded setback”).

This matter also pulls into consideration Performance Criterion P6. Again, it has no specific setback limitations, which Acceptable Solution A6 does (being, that no part of the building is to be closer than 10 metres to a side or rear boundary of site - except for irrelevant exceptions). But, considering that this deals with boundary clearances, separation and privacy - apart from the issue of privacy which will be dealt with soon - there is nothing which establishes that the setbacks for this proposed development do not ameliorate the impacts of this building on adjacent buildings, or do not maintain high levels of amenity for the dwelling units of people within the planned units, on adjoining sites and in the public domain.

As for overshadowing, given the Acceptable Solution A 3.2 would, here, permit 10 storeys above ground level, overshadowing is an inevitable outcome. This is a conclusion bolstered by the various photographs, particularly those taken from the air. There is nothing, even in the RD-HDC which prohibits shadowing of adjoining properties. The highest it goes, at least in its Performance Criteria, is that in Performance Criterion P17 it is stated that dwellings “must receive adequate daylight and allow passage of cooling breezes through habitable rooms”.

When the overshadowing evidence is analysed carefully, Exhibit 28, in particular, shows considerable overshadowing already by existing buildings - and by a designation of the shadow extent of the proposed development were it to be limited to 10 storeys. In particular, given what overshadowing can and could occur from both such sources, I accept that the additional impact is in no way exceptional (or, other than minor), while acknowledging that, at times, particularly in the morning in winter, parts of two buildings to the south would have some affectation. But, by 12pm – and obviously earlier as the diagrams implicitly demonstrate – that would be totally removed. The effect of summer shadowing may seem to be a potential benefit to reduce, especially, the 3pm (and later) afternoon heat. I am in no way convinced that the additional shadows which would be cast by the proposed tower raises any conflict, even acknowledging the qualifications extracted during cross-examination about the modeling, particularly with respect to the plot ratio of such a 10 storey building. The height is, of course, the major feature of any over-shadowing.

With respect to the CP2014, there are provisions similar to the CP2000, which refer to reasonable access to daylight and sunlight, while the HDR Zone Code recognises an expectation of overshadowing. With particular reference to the KPPNPC, Performance Outcome P01 requires a design “to avoid a significant and undue adverse amenity impact on adjoining development.” That would not be breached here.

Lastly, the approval in Rankeilor 2 is a matter to which regard has been paid as well.

As for privacy, Mr Olsson was concerned with potential breaches of that concerning occupants of the various “town homes”. It was widely recognised that, both in our southern capitals and in many inner city residential areas in Europe, street front apartments, or rooms, are commonplace. In addition, Exhibit 34 shows not dissimilar potential privacy concerns. They are, I find, in reality, a matter of personal choice. Additionally, Figures b and c in the KPPLP refer to “many” windows providing, in fact, potential casual surveillance of the street.

As for overlooking (in terms of privacy), there is a three metre wide planting zone, for screening, along the north-western and northern boundaries. Furthermore, as Metro contends, there would be more than 17 metres between the boundary and the adjacent “Dunholme” building. To the extent that there might be other identified instances as constituting a problem, a condition requiring screening is an obvious simple resolution, especially where the conditions of approval require appropriate screening. As for the existing developments in Cairns Street and the lower part of O’Connell Street, not only is the back of such developments turned towards the Site but also they have relatively few balconies or living rooms oriented south or south-west.

For all such additional matters, any additional intent derived from, in particular, the Acceptable Solutions, is, yet again, small in this aspect of evaluation and, therefore, of minor significance.

Character

Although the Association has sought to make much of this particular component of the residential neighbourhood strategy, and although Mr Buckley has discerned some aspects of a “local” character (in Exhibit 16), I do not consider that it gives rise here to some kind of “special” amenity. The aspects so discerned are those which have been largely canvassed in connection with the Performance Criteria in the CP2000. It is a stretch to say that the proposed development - in a locality of many modern high rise and high density buildings (substantially comprising units) - has nothing that fits with Kangaroo Point as a whole, or even with this vicinity, especially noting 4.2.2.4 in Chapter 2. There is nothing of relevance in the CP2014 which weighs against this.

Amenity (generally)

In Baptist Union of Qld v Brisbane City Council[28] Brabazon QC DCJ, in dealing with the interplay between amenity and the expectations of local residents, held that, from a planning point of view, “their expectations must be reasonable in light of all the planning provisions applying” to the land in question: at 80 [129]. He added that, in principle, expectations should be “based on a full and impartial understanding of all the aspects of the planning controls” (emphasis added). The higher order provisions of the CP2000 dictate that expectations for the future amenity of an area be “realistic”, needing to be “balanced” with expectations of housing choice requiring “a variety of housing types and tenures”: see 4.2.2.1 in Chapter 2. It also states that the Plan’s strategic directions are to “prevent intrusion ... that could seriously detract from residential amenity”.
[28] [2003] QPELR 61.

Accordingly, I am little helped by Mr Buckley’s analysis of what an informed view of reasonable expectations are when I have found against so many of his basic tenets. Also, to the extent that the CP2014 essentially reflects the CP2000, it does not provide particular comfort for anyone misunderstanding the nature of performance based assessment. It is impossible to totally ignore the approval which is Rankeilor 2 in light of statutory instruction to pay regard to it, noting that it results from a Court determined “permissible change”. Exhibit 4B also demonstrates how successive planning “maps” since 1987 have reinforced the content contained in them as an abiding factor. As for the CP2014: first, it is, at the very least, arguable that for Kangaroo Point there is the ability to make a code-assessable application for a 15 storey building (and, therefore, a factor in determining reasonable expectation); and, secondly, both 6.2.1.4(7) and 7.2.11.1.2(3)(f) must have also, now, an effect on the generation of present expectation and, therefore, inform the reference in Performance Outcome PO1 to alignment with “community expectations” about the number of storeys. Its “note” acknowledges only that exceeding the intended number of storeys “can” place disproportionate pressure - rather than “will” so place it - in a context where there is no expressed height limit.

As “intangible amenity” has not been agitated in evidence, I decline to consider it. Even if I were to, I would find that it adds nothing to the extensive considerations already undertaken which show that the amenity of the neighbourhood would not be detrimentally affected by the DA.

Association’s witnesses

Before canvassing such evidence, I note that Robin QC DCJ in Calvisi stated, there:

· that concerns which were expressed about precedents being set were “understandable”; and

· that he endorsed the complaint that lay people were likely to be misled by the City Plan (and its counterparts elsewhere) into construing acceptable solutions as “enforceable limits on development” – which they were not – as becomes clear when one reads what is said of them “in other physically remote parts of the planning scheme”, adding that, ideally, some prominent “warning” should be printed directly adjacent to the acceptable solutions;

: at 66 [78].

I dismiss any argument that seeks to argue for a finding that, since there was no cross-examination of any of the witnesses whose statements form Exhibit 17, this must lead to an acceptance of their views, particularly as to expectations. First, their views on legal issues are irrelevant. Secondly, none of them was proposed as an expert witness for whom an opinion so expressed was admissible evidence.

While “realistic” expectations do, to some extent, at least, depend upon the expectations of the local community, a selection of expectations of particular opponents to a development does not necessarily inform the true content of such expectations.

There is no doubt that explicitly, or implicitly, very many of the Association’s witnesses mistakenly understood the relationship between acceptable solutions and performance criteria (such as noted in Calvisi). There were also misconceptions about what existing development, and approvals, meant. Additionally, concerns were raised which did not become issues in the appeal, such as those concerned with traffic, car parking, noise, interruptions of breezes, and impact upon property values. These concerns, although held by me to be irrelevant, are nevertheless understandable. Similar circumstances were noted in The Purcell Family. It was there remarked that the balancing between “competing aspirations” of those living in the area to continue to enjoy it as it is and those who, equally understandably, wish to develop the land to its best advantage can only be done “by reference to the statutory planning controls in place”: at 523 [7].

With respect to the relevance of the number of objections, in Indooroopilly Golf Club (where there were more than 4000 objections) it was held:

· that the sheer numerical strength must be given some consideration; but

· that it is trite to observe the objections have to be relevant; and

· that, although there might be a marshalling of objectors, “as might be expected”, with a consequence of such energetic organising involving many people saying similar things, that was not to say that those who objected were not genuine and sincere in their objection;

: at 39.

Because of the way in which this case was run, including the choice not to cross-examine any of the Association’s lay witnesses, I am not going to infer any adverse inferences regarding the Association itself. As it appeared to me, the Association was not asserted to be some trojan horse for other unidentified interests, particularly where the case it ran, involving the number of persons who were willing to give statements which became evidence, shows that there was an interest in submitting significant opposition to the proposed development from their personal perspectives.

In summary, I have read and brought into my general consideration those views expressed in Exhibit 17 which are relevant to the issues that I have dealt with in detail here. In doing so, I acknowledge that considerable opposition is revealed by the number, and to a lesser extent by the nature, of such objections.

Evidence and effect of “need”

It is, as Metro contends, a fair summary of Mr Duane’s evidence that it is his opinion that Kangaroo Point – using Mr Duane’s own words – “will be one of the most desirable and best locations for a facility of this type”.

Details of his evidence are as follows:

· from an economic perspective, the non-development of the Site would represent an “inefficient economic outcome”, with the usual position being that economic outcomes of that type inform planning outcomes;

· there would be a “clear community and economic need” and a “strong demand” for such a development (as the DA represents) in the market because:

§ the inner area for Brisbane, including the suburbs immediately around the Site, are predicted to grow rapidly over the next 20 years, thus becoming “one of the fastest growing areas” in Australia;

§ projections by the Queensland Government lead to the conclusion that growth of some 4,200 people is required within the Kangaroo Point area to 2031, requiring some 2,200 dwellings;

§ in such a rapid growth area, the need is for diversity and choice of household product in multi-unit developments;

§ the socio–economic profile of the area is one of a high proportion of single persons and couples (many of whom are professionals who live and work close to the CBD) who demand a large number of one and two bedroom apartments;

§ multi-unit development in such an inner city location will help reinforce “a compact form of settlement”, resulting in improved efficiencies in the use of existing and proposed infrastructure throughout the surrounding region, to an overall community benefit;

§ of the proximity of the Site to major infrastructure (which includes, within the surrounding area, shopping centres, commercial office buildings, public transport, hospitals, schools, educational facilities and sporting facilities, along with development including a supermarket of 1,900 m² within the “Dockside Gardens”);

§ the efficient use of such infrastructure in a rapid growth area is important to ensure a sustainable economic turn; and

· Metro is an experienced operator in supplying affordable housing in one and two bedroom units in a market where much higher priced units are otherwise available, in circumstances where affordable housing is an important part of the strategy for housing in the inner city area.

Although Mr Duane’s evidence was not challenged by any competing expert, he did concede certain matters in cross-examination, which included:

· that the number of new individuals coming to live in the Kangaroo Point area was based on the assumption that such individuals will reside by 2031;

· that there was no analysis of any supply in respect of suburbs other than East Brisbane and Kangaroo Point;

· that Exhibit 41 demonstrated that 188 units were not taken into account by his analysis (i.e. 8.5% of the predicted dwellings to be provided by 2031); and

· concerning the report by Colliers International, dated 2013, annexed to Exhibit 12, that there was a later Landmark White Report in 2014, referring to a possibility of “an oversupply” - but he sought to answer that by stating that Kangaroo Point did not have the “same level of supply brought forward” as happened in the rest of the inner city Brisbane market.

In more general terms, the Association’s criticism of Mr Duane is centred on:

· that the CP2014, which explicitly had provided for the population growth figures being taken into account in the preparation of it, meant that the relevant growth is already catered for – though that is weakened by provision 7.2.11.1.2(3)(f);

· that there was no “on the ground” evidence considered;

· that there could be a large supply of residential units, comparable to those that would be in the proposed development, situated in other suburbs such as New Farm, Fortitude Valley, West End and Woolloongabba - although this was left as a possibility only;

· that, taking Mr Duane’s evidence at its highest, 42% of the apartments to be provided to 2031 have already been supplied on Mr Duane’s figures, thereby leading to the inference that the market is not currently undersupplied;

· that the “ups and downs” of supply and demand are normal, and are to be expected, for any residential housing market; and

· that Mr Duane was not qualified to give expert evidence of a town planning expert kind.

From a combination of the concessions in cross-examination and the submissions just canvassed, the Association’s contention is that there has been no demonstrated need for the proposed development and, therefore, that it cannot be a ground capable of overcoming conflict with the planning instruments.

It must have always been clear to the Association that Mr Duane was to give evidence of need. It was the Association that chose not to have a competing expert. Given that Mr Duane was the only expert, and that there was no challenge to his expertise or experience, I have to determine to what extent his expert knowledge, in his field of expertise, has assisted me in understanding need in this case. Within their field, experts can legitimately rely on statistical information (provided its source is generally recognised in that field) and then use it in a peer-acceptable manner.

Insofar as the CP2000 is concerned, while I accept that the proposed development will, indeed, give a choice (which such persons who are identified by Mr Duane might well chose to avail themselves of), I am also satisfied that there is a latent unsatisfied demand on the part of such persons that the CP2000 is not adequately meeting in this locality. I accept that, from an economic perspective, Kangaroo Point is well - if not very well - located in infrastructure terms (having 3 ferry services to it and within a short distance of bus stops on Shaftson Avenue) and, being in a high density residential area, maximum efficient use ought to be made of such infrastructure. This is despite there being some merit in what the Association contends (namely, that demand in the future can be catered for by further developments). But that does not gainsay the existence of a present need for present growth (evidenced by the high percentage already of the supply being demanded) - recognising that demand is not the sole criterion of need. Those matters mean that there is an overall benefit to the community in this locality. In relative terms, I accept that the need here reflects the utilisation of basic and expected facilities which can be met without unacceptable impacts on amenity or other factors militating against approval. If the objection that an apartment (or unit) building is a “generic” product and as such cannot constitute a local need, one is led to wonder what DRO 8 of the SEQRP addresses when speaking of “housing choices” or “options”. Here, because I have found that there is no conflict, the weight to be given to need is not overly significant, though I would have, otherwise, found that it had significance if such conflict did exist because, then, it would become part of a balancing process rather than merely an additional reason for approval.

With respect to the CP2014, there is a different approach, though perhaps of significance mainly in terms of primary assessment. As referred to, one of the overall outcomes in that instrument for the KPPNP Area is that a development of a “greater height, scale and form” can be undertaken “where there is to be both a community need and an economic need for the development” (emphasis added). Given what “need” has in the past contemplated, it may well be that the requirement to establish both a community and an economic need has just split what was otherwise a unified concept. To the extent that it has present relevance, the use of the two aspects of need seems to reflect simply two aspects of that one concept – and that is no different from the present approach. If so, then the CP2014 does support this DA in terms of “greater” height, scale and form. Furthermore, in terms of infrastructure, Kangaroo Point is identified in the Strategic Framework as a “Growth Node” (Map SFM-003), with a Strategic Intent stating that Brisbane has “provided for the most significant additional residential growth” predominantly within “Growth Nodes” on “Selected Transport Corridors”: see 3.2.1. Shaftston Avenue is part of a “Selected Transport Corridor”. These “Growth Nodes” on “Selected Transport Corridors” are stated to provide “opportunities” for a “range of more intense urban form”, mix of land uses, and activities “that are tailored to the locality” and the catchments’ “community needs”.

Conflict (and, if so, grounds)?

A summary of the findings and conclusions that I have reached means that I have determined that approval of the proposed development in the DA will not give rise to any “relevant” conflict with the CP2000, because there has been overall compliance. That conclusion, of necessity, takes into account the conglomeration of all issues relevant to a determination of conflict. It is the sum, in balance, of all determinations made on separate aspects of each of those issues. It is also apparent that that is so by giving weight to the CP2014, especially concerning continuing community expectations.

Even so, should it be found that conflict does exist, then I would still have found that there would be sufficient grounds to justify an approval, despite such conflict. As to the level of conflict, it would be of a minor nature (for the reasons that have otherwise influenced my decision).

In particular, the reasons why I would do so in that event, are:

· with respect, particularly, to community expectations, having a 17 storey building in “Silver Keys” and having an existing development approval in Rankeilor 2, it also being noted that development of a similar scale has been approved since 2008 (in circumstances where it has not been demonstrated that no weight be given and where Abacus Funds Management v Sunshine Coast Regional Council[29] only tentatively rejected a “lapsed” approval as providing such a ground: at [67]);
[29] [2012] QPELR 669.

· the proposed development being consonant with desirable town planning objectives in the CP2000 and the CP2014, together with the SEQRP, because of:

§ the requirement to provide housing choice and diversity across Brisbane, particularly in a desirable inner-city location;

§ the role of increased height of such housing in well-located areas, near high quality public transport;

§ the efficient use of land in the Kangaroo Point peninsula area;

§ the efficient use of public infrastructure;

· the relative insignificance of the loss of actual views of the Story Bridge (if that were to be a matter of conflict);

· achieving more locally-focused principles and intents, to the extent relevant, of the Kangaroo Point peninsula local plan by:

§ in a convenient residential area, having people living at higher densities than in most other parts of Brisbane;

§ development on Lambert Street, as Map A in the KPPLP intends, having a desirable continuous frontage;

§ reduced reliance upon cars, acknowledging the convenience of public transport and accessible walkways and bikeways;

§ using this part of the Residential Precinct for “high density” residential development;

§ supporting the town centre in the Dockside Precinct and the community convenience centre in the Community Convenience Centre Precinct;

· achieving the objects of the SEQRP (DRO 8), being an efficient form of infill development taking advantage of this desirable location;

· achieving a superior planning outcome with respect to design, height and scale of the proposed development in comparison with the Rankeilor 2 approval;

· contributing to the character of the locality by incorporating design features of significant merit;

· having close and convenient access to public open space and public transport and the proposed bridge to link Kangaroo Point and the CBD (identified in the Brisbane City Centre Master Plan 2014 and in the CP2014);

· having close and convenient access to employment, cultural, dining, educational, sporting and retail precincts;

· including sustainability measures in line with the requirements of the CP2000 and Queensland Development Code; and

· the “need” just discussed.

Summary

As indicated, by either route, it is my conclusion that the appeal should be dismissed. Thus, for all the reasons in this decision, Metro has discharged its onus. But, given that conditions relevant to mitigating impact yet need to be finalised, it is appropriate, as sought by Metro, that the appeal be adjourned for further hearing, if needed, to determine those conditions.

CITATION:	Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64
PARTIES:	KANGAROO POINT RESIDENTS ASSOCIATION INC (Appellant) v BRISBANE CITY COUNCIL (Respondent) and METRO LAMBERT STREET PTY LTD (ACN 154 153 821) (Co-Respondent)
FILE NO/S:	171/2014
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court
DELIVERED ON:	19 November 2014
DELIVERED AT:	Brisbane
HEARING DATES:	24, 25, 26 and 30 September and 1, 2 and 3 October 2014
JUDGE:	Dorney QC DCJ
ORDER:	That the hearing of this appeal be adjourned for further hearing, if needed, concerning the imposition of appropriate conditions.
CATCHWORDS:	Planning and Environment - submitter appeal - planning authority supporting dismissal - whether conflict - “community expectations” - new plan in force after approval
LEGISLATION CITED:	Sustainable Planning Act 2009, s 36(2), s 314, s 314(1), s 314(2), s 314(2)(b), s 314(2)(g), s 314(3), s 314(3)(b), s 326, s 326(1)(b), s 493(2), s 495(1), s 495(2)(a), Schedule 3
CASES CITED:	AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1 Abacus Funds Management v Sunshine Coast Regional Council [2012] QPELR 669 Aria Property Group P/L v Maroochy Shire Council & Ors [2008] QCA 169 Baptist Union of Qld v Brisbane City Council [2003] QPELR 61 Calvisi & Ors v Brisbane City Council & Ors [2009] QPELR 35 Emerald Developments (Aust) Pty Ltd v Brisbane City Council [2003] QPELR 438 Friend v Brisbane City Council [2014] QPELR 24 Gold Coast City Council v K Page Main Beach Pty Ltd (2011) 185 LGERA 55 Hankamer v Brisbane City Council [2013] QPELR 800 Hope & Anor v Brisbane City Council [2013] QCA 198 Hunter & Ors v Canary Wharf Ltd [1997] AC 655 Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPELR 406 Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 Mackay Shopping Centres Pty Ltd v Mackay Regional Council [2013] QPELR 661 Main Beach Progress Association Inc v Gold Coast City Council [2008] QPELR 675 R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22 Robinson v Brisbane City Council & Anor [1987] QPLR 71 Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515 Scurr v Brisbane City Council (1973) 133 CLR 242 SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245 Stockland Development Pty Ltd v Townsville City Council & Ors (2013) 195 LGERA 317 The Purcell Family v Gold Coast City Council [2004] QPELR 521 WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272 Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82
COUNSEL:	Mr A Skoien and Mr M Batty for the Appellant Mr T Trotter for the Respondent Mr D Gore QC and Mr B Job for the Co-Respondent
SOLICITORS:	Thynne & Macartney for the Appellant Brisbane City Council Legal Practice for the Respondent Corrs Chambers Westgarth for the Co-Respondent