Kokoris v Brisbane City Council

[2001] QPEC 45

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Kokoris & Anor v. Brisbane City Council & Ors [2001] QPE 045
PARTIES:	KOKORIS and ANOTHER Appellant and BRISBANE CITY COUNCIL Respondent and G. MOURGINOS and OTHERS Co-Respondent
FILE NO/S:	Appeal No. 4600 of 2000
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	8 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	28, 29, 30, 31 May 2001
JUDGE:	Senior Judge Skoien
ORDER:	Appeal dismissed
CATCHWORDS:	Integrated Planning Act 1997; refusal of application for material change of use; large apartment building; non- compliance with residential density criteria in 1987 Town Plan; character and style.
COUNSEL:	Mr. J. Haydon for the appellant and the co-respondents Mr. C. Hughes for the respondent
SOLICITORS:	Eliadas & Associates for the appellant Brisbane City Legal Practice for the respondent.

1. This was an appeal against the Council’s refusal to give preliminary approval to an

   application by Mr and Mrs Kokoris for a material change of use and the carrying

   out of building work. The application was made under s.3.1.5(1) of the Integrated

   Planning Act 1997.

The Applicable Law

1. The development application was lodged on 30 June 2000 at a time when the

   Brisbane City Town Plan 1987 was still in force as a “transitional planning scheme”

   (IPA, s.6.1.3). Accordingly, the judgment of this court is to be based on the laws

   and policies applying when the application was made, that is the 1987 Town Plan

   and the Local Government (Planning and Environment) Act 1990 (IPA,

   s.4.1.52(2)(a)). However the court may give weight to such new laws and policies

   as are considered appropriate (ibid). In effect this application is to be treated as if it

   were an application to re-zone the land under the P & E Act.

The Site

1. The site is roughly rectangular, containing 1701m², with a 30m frontage to the

   southern side of Dornoch Terrace, Highgate Hill and a depth of about 60m which is

   some 20m more than the depth of the two adjoining blocks and indeed any of the

   blocks on the southern side of Dornoch Terrace. It drops steeply downhill from the

   road, falling vertically about 15m over the 60m depth.

2. There already stands on the site a two-storied brick house which, regrettably, has

   not been maintained in its original form and condition. Mr and Mrs Kokaris are

   progressively restoring it and when they have done so it will be a very gracious

   example of a good quality house of its type, (circa. 1895). It is a “character” house

   which lies within the declared Heritage and Character Building Area.

3. The house is set back about 6m from Dornoch Terrace. It is 14.37m wide and

   13.1m deep. Because of the slope of the land, when viewed from Dornoch Terrace

   it is not obviously a two-storied building. It presents almost as a single-storied

   house.

The Neighbourhood

1. Dornoch Terrace (a designated Type D – District Access Road) runs along the top

   of a ridge in a roughly east-west direction. Depending on the precise position of the

   viewer there are quite extensive views to the north (to the central business district of

   Brisbane), to the south and to the west towards Mt Coot-tha. All land in the

   relevant neighbourhood is zoned Residential B under the RDA R4 designation.

2. The immediate and obvious dominating feature of Dornoch Terrace is Torbreck, a

   fourteen storey apartment building which stands on the northern side of the street

   and about 100m to the east of the site. It is a tower block built in the style of the

   1960’s and is quite unlike any other building anywhere within a relevant distance.

   Almost opposite Torbreck is Highview, a three-storied brick building, said to be art

   deco in design. About 50m to the west of the site on the north side of Dornoch

   Terrace is a large three-storied brick apartment building called “Tania”. Directly

   opposite the site is a small park.

3. Otherwise Dornoch Terrace is lined with detached residences. They differ in age

   and architectural style but each is obviously a residence typical of its particular era.

   Thus to the immediate east of the site is a wooden house which is somewhat run

   down and, so far as the evidence goes, not a particularly noteworthy addition to the streetscape. To the immediate west of the site is a large red brick house. No

   particular attention was paid in the evidence to the other detached houses.

4. However it was commonly accepted and my inspection confirmed, that the relevant

   stretch of Dornoch Terrace (except for Highview, Torbreck and Tania) contains

   houses of a residential character but of different architectural styles. Indeed, even

   Tania, in the opinion of the architect, Mr Matovic, is somewhat residential in

   character (even though it is a large building) and reflects to some extent the sort of

   architecture used in the house to the immediate west of the site. I thought that to be

   a valid comment.

5. Of particular relevance is the fact that recently this court has permitted the

   development into residential lots of a substantial area to the south of the site (“lot

   5”). Hitherto this area has been a heavily overgrown steep gully, no doubt

   considered impractical for development in any form. Now it seems highly probable

   that on lot 5 some 28 houses will be built, 5 of them on allotments which actually

   adjoin the site.

6. It appears likely that conditions of that development will dictate the types of houses

   to be built on the various allotments in lot 5. Other conditions will require the

   establishment and maintenance of landscaping on the common boundary with the

   site to a depth of 6m. The only evidence on the nature of that landscaping is that

   Mr Toon, the landscape consultant for Mr and Mrs Kokoris, has selected trees for

   landscaping the adjoining area of the site which are compatible with the

   landscaping on lot 5.

The Proposal

1. The proposal of Mr and Mrs Kokaris is to retain the house and to build an

   apartment building behind it. That building will be set back about 24m from

   Dornoch Terrace (ie., about 4m behind the house). It is to contain ten units, one of

   which is to be occupied by Mr and Mrs Kokaris and their family, who will also

   retain the occupancy of the house, at least for the foreseeable future.

2. The building will have three habitable levels, with two car park levels below and a

   roof deck above. The roof deck itself is to have a roof (a “flying roof”) and is to be

   partly walled. The building will be about 23m wide and about 28m deep. At the

   front it will be about 13.8m high, from the ground to the top of the third habitable

   level (that is, four stories) and about 17m high from the ground to the flying roof

   (that is, five stories). A particular feature is a two-storied glass façade in the centre

   of the front of the building extending from the floor of the third habitable level to

   the flying roof. The slope of the land will leave at the rear of the building a void

   below the two car park floors with a height somewhat greater than a floor height so,

   at the rear, the overall height of the building will be that of a seven-storey building.

3. Landscaping is proposed along the eastern, western and southern boundaries. The

   depth available along the eastern and western boundaries varies from nil to only

   two metres. At the southern boundary the depth will be 4m.

Applicable Planning Principles

1. Under the 1987 Town Plan, the site and the land in the relevant vicinity was

   contained in the residential B zone, designated RDA R4. It is relevant therefore to

   look at the provisions relating to that designation. I do that, not in order to see if the

   proposal complies exactly. This is, after all, notionally a re-zoning because the

   proposal does not comply with some mandatory statutory requirements in the Town

   Plan for an R4 area. Therefore, a combination of s.6.1.30(3)(a) of IPA and

   s.4.1.4(5A) of the P&E Act require me to consider whether there are planning

   reasons which justify the proposal notwithstanding any conflict which may emerge

   with the provisos of the 1987 Strategic Plan.

2. The Strategic Plan has a number of provisions which I regard as relevant. They

   are:-

(a) Section 3.2.4.1 which seeks to identify, maintain and enhance the

scenic and visual amenity of the City through, inter alia:

“(d) ensuring development complements the character

and style of the surrounding area”

(b) Section 3.2.4.5 which seeks to ensure that people are able to choose

their residential location with realistic expectations of future amenity

of the area by inter alia, providing that:

(b) … . spot zoning will continue to be avoided;

(d) The development of land for residential purposes is

consistent with the maintenance of an acceptable standard of

residential amenity with consideration also being given to any loss of

views from surrounding properties;

(c) Section 3.3.2.1, the Statement of Intent for Urban areas which (in the

fifth and sixth paragraphs) provides that amendments to the Town

Plan to allow housing densities higher than currently allowed will

only be considered where a site meets certain criteria (close to

significant transit nodes such as railway stations, busway stations,

ferry terminals and city express bus stops) in and around the Central

City and other centres or institutions and where the impacts of

development are adequately mitigated.

1. The Town Plan also contains this relevant matter:-

(a) Figure 7.1.1 (the Heritage and Character Building Area Map) read in

conjunction with ss 7.3.6.1, 7.3.6.3 and 7.3.6.4 which makes

removal or demolition of the existing house permissible

development, and lays down strict laws for the giving of that

permission;

(b) Section 7.3.1, the Statement of Intent for the Residential B Zone and

in particular the last sentence under “Intent” which states that

building type, site cover and site area are prescribed to “ensure that

an adequate level of amenity is achieved”;

(c)	The provisions for RDA R4 which:
(i) acknowledge a mix of detached houses and apartment

buildings and impose the requirement that any proposal for

an apartment building give consideration “to the surrounding

residential land uses to ensure… an appropriate standard of

residential amenity is achieved”;

(ii)        require that apartment buildings should be sensitive to

“overshadowing, overlooking, domination of adjoining sites,

landscaping, the streetscape character… ”;

(iii)       require development to “fulfil the performance standards set

out” in the relevant local planning policy (in this case

planning policy No. 7.35) which includes:

“The intent of this Policy is to provide guidance on the development of apartment buildings in Residential Development Area R4. The paramount aims are to avoid developments which give the impression of over development and discord with the streetscape when located next to detached dwellings. The Policy aims to encourage developments which are of good quality design and which result in a positive contribution to the streetscape and residential amenity for surrounding land.”

(iv)       indicate that these performance standards may preclude

development of an R4 site reaching “the maximum allowable

gross floor area or height or both”.

(d) the provisions of s.7.6.6 which set out the development standards for

a building in the R4 area. They are important in order to determine

what expectations could reasonably have been held of the types of

buildings which would be built in the area, that is, expectations as to

amenity. These include provisions requiring that a building in the

R4 area have:

(c)	maximum 50% site cover;
(d)	no more than two storeys within 10m of a side or rear

boundary and otherwise no more than three storeys

above ground level;

(e)	gross floor area of no more than 60% of the site area;
(f)	side boundary setbacks with respect to the height of

the building above ground level which should be 4

m. (or 5 m. in places); and

(g) a rear boundary clearance of 6m.

1. The Council has a policy (no. 7.07) which provides five guidelines for when the

   relaxation of the Town Plan requirements about residential building height is under

   consideration. Mr. Haydon, counsel for Mr. and Mrs. Kokaris, did not argue that

   any of them assisted his clients’ case. Indeed one of them which particularises

   shadowing or overlooking other residential buildings is very much against that case.

   As exhibit 23 demonstrates in mid-winter there will be shadowing of five of the

   allotments which abut the site, three of them, seriously. It is probable that the

   proposal fails to comply with policy 24.01 which deals expressly with shadowing

   and sunlight penetration but it is not necessary to decide that. Obviously the

   building will overlook the surrounding residences and I do not consider that the

   proposed screens over windows will overcome that.

Impact of the Building

1. The proposed building fails to comply with the development standards for the R4

   area (see para [17](d) above) in a number of major ways. Rather than having a

   maximum of three stories (indeed just two within ten metres of side or rear

   boundaries) to an observer on Dornoch Terrace the front of the building presents as

   a four storied structure. To an observer to the east or west the front presents as a

   five storied structure which progressively rises until at the rear it presents as a seven

   storied building, an appearance it also gives to an observer from the south. It has a gross floor area of well over 60% of the site area (1820 m² instead of 1020 m²), a

   requirement which is not relaxable, hence the necessity, under the old law, for a re-

   zoning. The side boundary clearances vary from zero to only 2 m. and the rear

   boundary clearance is only 4 m. Finally, the site coverage is minimally too great,

   an excess which of itself presents no impediment to the proposal.

2. While I am sure Mr. Toon is a well qualified and skillful landscape architect, I

   remain unsatisfied that the trees he intends to plant can disguise the presence and

   height of the building from the south, east or west. The height of the building at the

   rear (to the roof deck) will be some 22m. above ground level and some 28 m. to the

   flying roof. The maximum height of the trees to be planted along that boundary is

   said to be 25-30 m. Even at maximum height I am not satisfied that they would

   disguise the fact that a building of this size stands on the land. Moreover Mr. Toon

   said they would take five to ten years even to reach enough height to screen the two

   car parks and some twenty years to reach maximum height. So for a very long time

   there would be no screening at all of most of the building. Finally, while some

   assistance may be given by trees planted along the 6 m. landscape buffer to be

   provided in lot 5, I cannot be satisfied of the extent of that and it must be

   remembered that they will be planted on ground even lower than the ground level of

   the southern boundary of the site.

3. I am satisfied that from considerable areas to the south of the site the building will

   be quite obvious and will tower over anything else in the immediate vicinity. It

   cannot be expected that the inhabitants of those areas will orientate their living areas and their gaze away for this building, nor should they be expected to. It will

   also be visible as a very high building from some areas to the east and west.

4. Even from Dornoch Terrace, on the evidence of Mr. Matovic (which I accept) the

   building will dwarf the existing house and nearby houses. Further, I accept his

   evidence that the building, particularly with the glass centrepiece, will have an

   appearance which is at least in part non-residential.

5. Thus from all directions, the building is too wide, too long and, especially, too high.

   I have reached that conclusion conscious of Mr. Haydon’s submission that I should

   not decide the matter simply on the basis that the dimensions of the building exceed

   the R4 guidelines. I have not. Rather I have assessed the overall effect of this

   building in this area which is almost entirely in the R4 designation and which, other

   than for Torbreck, contains buildings which do not offend that designation. I regard

   Torbreck as a unique feature of the area and something of an anomaly. It was built

   long before residential density provisions came into force. I certainly do not regard

   it as a feature encouraging the establishment of more large or tall buildings in the

   area.

6. The failure of the building to be in sympathy with its surrounding area is caused

   primarily by its size, its bulk and height. It is also related to the fact (which may be

   another way of stating the same thing) that its character and style are quite unlike

   anything else in the area, a point made by Mr. Matovic. It is not close to a transit

   node. It is thus in very serious conflict with the provisions of the Strategic Plan set

   out in para [16] and the provisions of the Town Plan set out in para [17] and contrary to the policies referred to in para [18]. To my mind its creation on the site

   would be an unreasonable detriment to the amenity of the area.

7. There is a suggestion in the evidence that if this proposal does not proceed an

   alternative proposal in which the existing house will be demolished could find

   favour with the Council. To some extent that is an in terroram argument because

   the evidence and my inspection establish that the house is a very valuable asset to

   the area, indeed to the wider community. The evidence demonstrates that it can be

   restored to its former beauty (“grandeur”, Mr. Haydon called it) and in the light of

   that evidence I find it difficult to accept that its existence is under serious threat. As

   Mr. Matovic said in evidence it is not beyond the skill of an architect to design an

   R4 designation building in conjunction with the house. Whether some expansion of

   the R4 limits could be permitted which would yet be sympathetic to the existing

   character and style of the area I am, of course, unable to say, but Mr and Mrs

   Kokoris may be disposed to explore that.

8. It was also suggested that this development should be considered favourably

   because this is the only site in the relevant stretch of Dornoch Terrace with

   sufficient land or side boundary clearances to permit it. I am not sure, from a

   perusal of the maps and plans, that this is really so but in any event it does not

   provide a warrant to go ahead with a development which is unacceptable.

9. It was said by Mr. Buckley, the planning consultant called by Mr. and Mrs.

   Kokoris, that the nature of the site is a mix of R4 and R5 characteristics so as to

   justify this development, thereby providing a balance of housing choices. I cannot

   accept that. If the site were to be developed in some way compatible with R5 designation I would expect a stepped down type of building such as appears in

   exhibit 28.

10. Mr. Buckley’s report, exhibit 1, contains some extracts from the City Plan 2000

    dealing with Low-medium and Medium Density Residential Areas. I pay some

    attention to them (see para [2]) but see nothing in them to offer any particular

    support to this proposal. If anything they tend to discourage it. The most relevant

    is the Low-medium Density area provisions because the site is now within that

    description. Low-medium density buildings are to be of two to three stories and the

    development standards are mostly the same as those for the old R4 designation.

    Medium-density buildings are to be only up to five stories and, on steeply sloping

    sites will step down the slope.

11. I am unable to find any sufficient planning grounds to justify this proposed

    development despite the conflict I have found with the strategic plan (P&E Act,

    s.4.4(5A)).

Conclusion

1. The appeal is dismissed.