Lennium Group Pty Ltd v Brisbane City Council & Ors
[2019] QPEC 17
•26 April 2019
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17
PARTIES:
LENNIUM GROUP PTY LTD (ACN 147 434 035)
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)AND
NICOLE JOHNSTON
(First Co-Respondent by Election)AND
NOEL MORRIS
(Second Co-Respondent by Election)AND
NICHOLAS CHARLES READ
(Third Co-Respondent by Election)FILE NO/S:
77 of 2017
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
26 April 2019
DELIVERED AT:
Brisbane
HEARING DATE:
2, 29, 30 and 31 October 2018, 1 and 2 November 2018, 10 December 2018, and further written submissions received 21 December 2018, 12 March 2019, 13 March and 1 April 2019.
JUDGE:
Kefford DCJ
ORDER:
The appeal is dismissed. The development application is refused.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – where the appellant seeks approval for a three storey unit complex with 30 units on part of the Yeronga Bowls Club – where the land is in the Sport and recreation zone – where the land is protected as a local heritage place – where the Council refused the development application – whether the impact of the proposed development on the cultural heritage significance of Yeronga Bowls Club is acceptable – whether the land is still required for sport and recreation uses or community facilities – whether the proposed development will have an unacceptable stormwater impact – whether there are grounds that justify approval of the development application despite conflict with City Plan 2014
LEGISLATION:
Planning Act 2016 (Qld), s 311
Sustainable Planning Act 2009 (Qld), s 314, s 324, s 326
CASES:
GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, approved
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15; [2013] QPELR 711, approved
ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52; [2017] QPELR 1117, cited
SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74; [2007] QPELR 24, approved
United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, approved
Weightman v Gold Coast City Council & Anor [2002] QCA 234; [2003] 2 Qd R 441, applied
Woolworths Ltd v Maryborough City Council (No 2) [2005] QCA 262; [2006] 1 Qd R 273, applied
Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2914) 201 LGERA 82 applied
COUNSEL:
A Skoien for the Appellant
B Job QC and M Batty for the RespondentSOLICITORS:
Colin Biggers & Paisley Lawyers for the Appellant
Brisbane City Legal Practice for the Respondent
Each of the Co-Respondents by Election were self-representedTABLE OF CONTENTS
Introduction............................................................................................................................ 3
The decision framework.......................................................................................................... 4
Should the appeal proceed on the basis of further proposed changes?...................................... 5
Is the impact on heritage values acceptable?............................................................................ 6
Is the proposed use appropriate in the Sport and recreation zone?......................................... 12
Would approval of the proposed development conflict with land use strategy L6.1?............ 12
What is the proper construction of land use strategy L6.1?........................................... 12
Has Lennium Group demonstrated approval of the proposed development would not conflict with land use strategy L6.1?................................................................................................................. 14
Would approval of the proposed development conflict with the Sport and recreation zone code? 22
Would approval of the proposed development conflict with other provisions in the Strategic framework? 23
Conclusion regarding the appropriateness of the proposed use in the Sport and recreation zone? 24
Is there a tension between the heritage provisions and the sport and recreation provisions?..... 24
Does the proposed development adequately cater for stormwater?........................................ 24
Is there a lawful point of discharge?................................................................................... 26
Is there inappropriate reliance on the Barclay Green for storage?........................................ 27
Is there a material error in the extent of the upstream catchment assumed in the modelling?.. 27
Was the modelling methodology adopted by Mr Roads appropriate?................................. 29
Would approval of the proposed development conflict with the Stormwater code?............. 31
Would approval of the proposed development conflict with the Flood overlay code?.......... 32
Conclusion re stormwater and flooding issues..................................................................... 32
Is the built form acceptable?.................................................................................................. 32
The built form of the proposed development...................................................................... 33
What are the allegations of conflict?................................................................................... 33
Would approval of the proposed development conflict with the Multiple dwelling code?...... 34
Would approval of the proposed development conflict with the Low-medium density residential zone code? 40
Would the built form of the proposed development conflict with the Sport and recreation zone code? 41
Would the built form of the proposed development conflict with the Strategic framework?.. 41
Conclusions regarding built form........................................................................................ 42
Is refusal warranted by other issues raised by the residents?................................................... 42
Are there sufficient grounds to justify approval of the development application?...................... 42
What is the nature and extent of the conflict?...................................................................... 42
Are there grounds sufficient to justify approval despite the nature and extent of conflict?...... 44
Conclusion............................................................................................................................ 48
Introduction
The Yeronga Bowls Club sporting facility is one of the oldest bowls clubs in Queensland. It is located on 11 lots. Five of the lots front Querrin Street at Yeronga and contain the bowling green known as the MacGregor Green. The other six front School Road. They contain the clubhouse, and the bowling green known as the Barclay Green.
On 31 March 2017, Lennium Group Pty Ltd purchased the five lots fronting Querrin Street from the unincorporated association known as the Yeronga Bowls Club (“the Association”). Lennium Group wants to redevelop its land by demolishing the MacGregor Green and replacing the sport and recreation use of those five lots with a three-storey building containing 30 dwellings. Lennium Group made a development application to Brisbane City Council to facilitate its proposed redevelopment. The application related to the five lots purchased by Lennium Group, as well as the six lots retained by the Association. No redevelopment is proposed on the part of the land owned by the Association.
The Council refused the application. It contends that two fundamental and insurmountable obstacles stand in the way of an approval of the proposed development. The first relates to the local heritage place status of the Yeronga Bowls Club.[1] The second obstacle relates to the inclusion of the land in the Sport and Recreation Zone.
[1]Where I refer to the Yeronga Bowls Club, I am referring to the sporting facility located on the land. I refer to the Yeronga Bowls Club unincorporated association as “the Association”.
Three residents of the area have elected to join the appeal: Ms Johnston, Mr Morris and Mr Read. They each made a submission during the application process opposing the development. They maintain their opposition to it, even though the appeal has been allowed to proceed on the basis of a change to the application.[2] Lennium Group proposes further changes to the development. They have not allayed the concerns of the three residents, nor of the Council.
[2]The development application originally sought approval for a four-storey unit complex comprising 50 units. On 30 January 2018, the court permitted the appeal to proceed on the basis of a changed application as the change was no more than a minor change.
The issues for me to decide are:
(a) whether the impact on cultural heritage values is acceptable;
(b) whether the proposed use is appropriate given the land is in the Sport and recreation zone;
(c) whether the proposed development adequately caters for stormwater;
(d) whether the built form of the proposed development is acceptable; and
(e) whether the development application should be approved anyway.
The decision framework
The issues must be decided within the statutory framework in the Sustainable Planning Act 2009 (Qld).[3]
[3]The Sustainable Planning Act 2009 was in force when Lennium Group made its development application and filed this appeal. By operation of s 311(2) of the Planning Act 2016 (Qld), the Sustainable Planning Act 2009 continues to apply.
The appeal proceeds by way of hearing anew.[4] Lennium Group bears the onus of establishing that the appeal should be allowed, and the development application approved.[5]
[4]Sustainable Planning Act 2009, s 495.
[5]Sustainable Planning Act 2009, s 493.
In this case, the application is for three development approvals. They are:
(a) a preliminary approval for building work;
(b) a development permit for material change of use to facilitate demolition of the MacGregor Green and a change from use for sport and recreation to use for multiple dwellings; and
(c) a development permit for reconfiguration of a lot, to create a 1.5-metre wide easement from Querrin Street to the clubhouse.
The development application is to be assessed against Version 3.01/2016 of Brisbane City Plan 2014, being the version of City Plan in place when the development application was made on 24 May 2016.[6]
[6]Sustainable Planning Act 2009, s 314.
The Council also seeks to rely on its recently amended Sport and recreation zone code, which may be given such weight as I consider appropriate.[7]
[7]Sustainable Planning Act 2009, s 495(2)(a).
If the development application conflicts with City Plan, it cannot be approved unless there are sufficient matters of public interest to justify approval despite the conflict.[8]
[8]Sustainable Planning Act 2009, s 326 and the definition of “grounds” in Schedule 3.
Should the appeal proceed on the basis of further proposed changes?
Lennium Group wants the appeal decided on the basis of a changed development application. In January 2018, the court permitted the appeal to proceed on the basis of changes identified by the town planner retained by Lennium Group, Mr Greg Ovenden, in paragraph 16 of his affidavit sworn on 6 December 2017. Lennium Group now wants to make four further changes, namely:
(a) correction of an error in the shadow diagrams;
(b) the connection of six slimline roofwater tanks to the 125,000 litre underground detention tank (to increase stormwater detention capacity for the proposed development);
(c) the relocation of two columns in the basement carpark adjacent to parking spaces to enable appropriate movements and separation between the carparking spaces and the columns; and
(d) the provision in the basement parking of appropriate room above car parking spaces adjacent to services in the basement carpark.
I am satisfied that those changes, in addition to the changes identified in the affidavit of Mr Ovenden, would not result in “substantially different development” to that which was before the Council at the time of its decision. I am also satisfied that the changes sought by the Appellant constitute no more than a minor change[9] and that it is appropriate for the appeal to be determined on the basis of the changes.[10]
[9]Sustainable Planning Act 2009, s 350.
[10]Sustainable Planning Act 2009, s 495(2)(b).
Is the impact on heritage values acceptable?
The acceptability of the impact on the heritage significance of the heritage place is to be assessed by reference to the Heritage overlay code and the Strategic framework.
The Council alleges approval of the proposed development would conflict with performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code, and the code’s purpose. It also alleges conflict with s 3.4.1(1)(c) of the Strategic framework, as well as specific outcome SO19 and land use strategy L19.1 and L19.3 in s 3.4.2, Element 2.1. Ms Johnston, Mr Morris and Mr Read join in those allegations.
Performance outcome PO1 of the Heritage overlay code requires development:
(a) to provide for the future protection of the heritage place; and
(b) not damage or diminish the heritage place’s cultural heritage significance.
Both requirements must be met.[11]
[11]GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33; [2018] QPELR 1079, [83]-[90].
The heritage place mapping identifies the entire area of the 11 lots on which the Yeronga Bowls Club is presently situated as a heritage place.
The Council led evidence from Mr Kennedy, a heritage architect. He is of the view that the statements of significance in the Council’s heritage citation identify the cultural heritage significance of the heritage place. I accept that the Council’s heritage citation for the Yeronga Bowls Club informs the cultural heritage significance of the heritage place in this case.[12]
[12]ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52; [2017] QPELR 1117, [57]-[67]. This was not in dispute between the parties. Lennium Group submitted that the determination of the heritage issues would largely turn on the proper construction of the heritage citation. It also submitted that the cultural heritage significance of the land was identified in the statement of significance.
Lennium Group submits that the focus of the statements of significance is the continuous operation of the Association over the last 105 years, and the addition of specifically identified fabric.
The first statement of significance relates to the importance of Yeronga Bowls Club in demonstrating the evolution or pattern of the local area’s history. It identifies the significance of the heritage place as “a bowls club that has operated on the same site since 1913 and has evolved over the years to meet the changing needs of the club and its members”. I do not regard this as attaching significance to the continued operation of the Association for two reasons.
First, in construing the statement of significance, it is appropriate to have regard to the context in which it appears.[13] Immediately before the statements of significance, the citation provides a summary of the heritage value of the heritage place. It is apparent from the first sentence of the summary that the “Yeronga Bowls Club” is the “sporting, leisure and social facility”, not the Association. This construction is supported by the final sentence of the summary, which refers to the “club” as a “venue”.
[13]Mr Elliott accepted the citation, as a whole, assists in understanding the statement of cultural heritage significance.
Second, the mere existence of the Association does not “demonstrat[e] the evolution or pattern of the local area’s history”. The fabric of the heritage place does. The Yeronga Bowls Club sporting facility officially opened in 1913. During cross-examination, Mr Richards accepted that the MacGregor Green plays a part in the history of the place. He acknowledged that the official opening of the club involved the MacGregor Green. It was the first formal green. It was in place at the inception of the Yeronga Bowls Club and was the principal part of the initial development of the sporting facility. The start of the bowling use involved the MacGregor Green. The MacGregor Green has remained a part of the place since the commencement of activities. Mr Richards also accepted during cross-examination that the clubhouse did not open until two years after the establishment of the use on the MacGregor Green. It was initially constructed in 1915 in the middle of the land. It was later relocated to towards the School Road frontage. Having regard to an extract from the Sunday mail on 10 July 1932, Mr Richards accepted the second green, being the Barclay Green, was constructed about 20 years later in 1932.
The second reason the heritage place is identified to be of cultural heritage significance is its importance in demonstrating the principal characteristics of a particular class of cultural places. In terms of the criterion, the citation records the heritage place to be significant “As an example of a sporting and social facility that has operated in Yeronga from the pre-World War 1 era to the present day”. The focus is on the facility, not the Association.
The third statement of significance focuses on the special association with the life and work of a particular person, group or organisation of importance in the City’s and local area’s history. With respect to this aspect of the Yeronga Bowls Club’s significance, the citation refers to the “shed and pavilion built for, and continuously occupied by, the Yeronga Bowling Club for more than 95 years, with a memorial drinking fountain (1942) and commemorative gates and decorative fencing built in 1969”. The Yeronga Bowling Club is the “organisation of importance in the City’s and local area’s history” with which the heritage place has a special association. The fabric of the heritage place is significant because of the “special association” with a group. The cultural heritage significance identified in this statement is not the continued operation of the Association itself.
Lennium Group submits that the clubhouse and a bowling green is the crucial fabric required to protect the cultural heritage significance of the heritage place. It submits the existence of the Association (as a going concern), and the fabric specifically identified in the citation, demonstrates:
(a) the evolution of Yeronga’s history (through the creation of the Association in 1913 by members of the local Yeronga community);
(b) the principal characteristics of a pre-World War I bowls club (being a clubhouse and bowling green); and
(c) the relationship of the Association with the local community of Yeronga and its history.
In respect of the heritage issue, Lennium Group led evidence from historian Mr Richards and heritage architect Mr Elliott. The Council led evidence from historian Dr Blake and Mr Kennedy. They all agree that “the principal elements that contribute to the [cultural heritage] significance of the place” are the MacGregor Green, the clubhouse, the Barclay Green, the memorial fountain, the commemorative gates, and the dedicated seats.
Despite agreeing that the MacGregor Green is a principal element that contributes to the significance of the heritage place, Mr Elliott considered that the proposed removal of the MacGregor Green would not diminish the heritage significance of the heritage place. (He considered the approval of the proposed development complied with all applicable provisions in City Plan.)
In explaining his opinion, Mr Elliott placed considerable focus on “commercial” considerations, in particular the membership and financial viability of the Association. He did so despite acknowledging that such considerations play no part in assessment under City Plan or the Burra Charter. The continuity of the use by the Association weighed heavily in Mr Elliott’s consideration of the impact of the proposed development on the cultural heritage significance of the heritage place. During cross-examination, he confirmed it was material to his conclusions about compliance with the Heritage overlay code.
Mr Richards also placed considerable emphasis on the continued operation of the Association “as a going concern” in forming his opinions about the impact of the proposed development.
The Council says Messrs Elliott and Richards’ reliance on commercial considerations is a significant flaw in the opinions they express about compliance with the Heritage overlay code. Lennium Group defends its experts’ reliance on such matters. It submits, considered “sensibly and pragmatically”, the proposed development involves the provision of funds to the Association to aid it in reorganising itself to continue its operations into the future, if that is possible. As such, it submits that the proposed development positively recognises and aids the achievement of the objectives of the cultural heritage significance of the heritage place.
I am not persuaded that the relevant cultural heritage significance is the continued operation of the Association for the reasons provided in paragraphs [21] to [25] above. Even if my construction of the statement of significance is incorrect, and the continued operation is of cultural heritage significance, Messrs Elliott and Richards’ reliance on that issue is misguided. The evidence does not demonstrate that approval of the proposed development would aid the continued operation of the Association. That part of the land occupied by the MacGregor Green has been sold. The sale was not conditional upon receipt of development approval. The Association has received the proceeds of sale in return for the transfer of ownership. As such, the future prosperity (or operation) of the Association does not rise or fall on the approval of the proposed development. A decision to approve the proposed development does nothing to assist the continued operation of the Association or its continued use of the balance of the land.
When Mr Elliott’s references to commercial matters are stripped from his analysis in the Joint Expert Report, little remains. Aside from commercial considerations, Mr Elliott formed his opinion by reference to applications for redevelopment of other bowls clubs. He appears to suggest that the Council’s position in this appeal is inconsistent with its position about redevelopment of other clubs. One of the difficulties with Mr Elliott’s evidence in that regard is that only some of the sites referred to by Mr Elliott were heritage places, and none of them have been developed. The most puzzling “example” referred to by Mr Elliott concerned the Tarragindi bowls club. The decision of the Council with respect to that club provides no assistance in determining whether there are acceptable heritage impacts associated with the proposed development. That decision involved application of a former policy “initiative” that was never implemented and never formed any part of City Plan. The policy was ultimately withdrawn. Further, that development application did not involve a heritage place, and the proposed redevelopment was for a different use to that sought here, namely aged care and retirement living development. For the Mowbray park site, a development application was not progressed, let alone assessed or decided.
Mr Elliott’s attempts to justify his reliance on the other bowls club sites were unconvincing. His evidence, on this issue in particular, impressed me as argumentative and lacking in impartiality. During his oral testimony, Mr Elliott presented as an advocate for his client’s cause.
I prefer the evidence of Mr Kennedy with respect to the impact of the proposed development on the cultural heritage significance of the heritage place. He performed a far more orthodox, and appropriate, assessment. He provided cogent explanations for his opinions. I also accept the evidence of Dr Blake.
Mr Kennedy and Dr Blake opine that approval of the proposed development would diminish the cultural heritage significance identified in the first statement of significance in the heritage citation. As was explained by Dr Blake, with whom Mr Kennedy agrees, the MacGregor Green demonstrates the beginnings of the club. It is “the primary evidence of the operation of the club since 1913”. With the removal of the MacGregor Green, there would be no evidence of the operation of the club on the land since 1913. The clubhouse only provides some evidence of the early history, given it has been relocated and extensively modified. The Barclay Green was constructed much later.
In relation to the second criterion in the heritage citation, although a clubhouse and bowling green are principal characteristics of a bowls club, the culturally significant characteristics of this bowls club are not so limited. The heritage place is significant “As an example of a sporting and social facility that has operated in Yeronga from the pre-World War 1 era to the present day”. The MacGregor Green is the only remaining pre-World War I element of cultural heritage significance. I accept the opinion of Mr Kennedy and Dr Blake that demolition of that green would substantially diminish the Yeronga Bowls Club’s ability to demonstrate its cultural heritage significance.
For those reasons, the proposed development conflicts with performance outcome PO1 of the Heritage overlay code. It involves the wholesale destruction of a principal element of the heritage place and its replacement with something entirely discordant with the heritage values of the place. It does not protect the heritage place. It diminishes its cultural heritage significance.
Performance outcome PO2 of the Heritage overlay code seeks development to be based on, and to take account of, all aspects of the cultural heritage significance of the heritage place.
Mr Richards accepts the MacGregor Green is “significant fabric in itself”. He acknowledges that the proposed development does not protect that fabric. Despite that, he is of the opinion that the proposed development complies with the requirement that development take account of all aspects of cultural heritage significance. During cross-examination, Mr Richards was given several opportunities to explain how he maintains that opinion in light of his acknowledgment that the proposed development would result in the loss of a principal element of significance. No rational explanation was provided. Rather, Mr Richards repeatedly asserted that the fabric of the heritage place was not the dominant consideration. To his mind, the operation of the Association on the land since 1913 was the dominant consideration. He regarded the continued operation of the Association as sufficient to tip the balance in favour of approval.
Dr Blake considers that the proposed development does not take account of one of the most significant elements of the heritage place because it proposes the removal of the MacGregor Green. He says, as the original green built in 1913, the MacGregor Green is an essential element in demonstrating the significance of the place. Mr Kennedy is of a similar opinion.
I prefer the evidence of Dr Blake and Mr Kennedy on this issue. The loss of the MacGregor Green, and its replacement with multiple unit dwellings, fails to ensure that the proposed development either is based on, or takes account of, all aspects of the cultural heritage significance of the place. As such, the proposed development is in conflict with performance outcome PO2 of the Heritage overlay code.
Performance outcome PO3 of the Heritage overlay code requires development to protect the fabric and setting of a heritage place while providing for its use, interpretation and management.
As I have already noted, all of the experts agree that the MacGregor Green is one of the principal elements that contributes to the significance of the place. It is significant fabric. In the Historians’ Joint Expert Report, Mr Richards acknowledges that “the proposed development will alter the site by developing the MacGregor Green for a new use.”
The proposed development protects some of the fabric of the heritage place. It would see the relocation, and restoration, of the memorial drinking fountain. The fountain is to be moved to that part of the land not sought to be redeveloped for units. Lennium Group also proposes the restoration and minor relocation, in Querrin Street, of the commemorative gates referred to in the third criterion in the statement of significance. The proposed development is to include fencing along the frontage of Querrin Street that acknowledges the decorative fencing built in 1969. The decorative fencing is referred to in the third criterion of the statement of significance.
In terms of setting, Mr Elliott acknowledges the proposed development will also substantially change the setting of the heritage place when viewed from the Querrin Street frontage of the land. He does not consider this to be material. He notes Lennium Group proposes to provide a pedestrian easement from the northern pedestrian gates on Querrin Street through the redeveloped northern portion of the land and connecting with the retained facilities on the balance of the subject site. He regards the maintenance of the continued land use over the balance of the land as sufficient.
The protection of the drinking fountain, gates, and decorative fencing, and the provision of access to the sporting facility from Querrin Street, are commendable aspects of the proposed development, but they are insufficient to demonstrate compliance with performance outcome PO3.
I accept the evidence of Mr Kennedy and Dr Blake on this issue. Mr Kennedy opines that the proposed development would not protect the fabric and setting of the Yeronga Bowls Club. His view is informed by the proposed demolition of the MacGregor Green, which is fabric he regards to be of considerable cultural heritage significance. He also considers that use of the MacGregor Green is crucial to understanding its cultural heritage significance. In terms of setting, Mr Kennedy considers the location of the proposed multiple unit dwelling on the MacGregor Green would destroy the existing open setting. Dr Blake was of a similar opinion. I accept the views of Mr Kennedy and Dr Blake.
For those reasons, a decision to approve the proposed development would conflict with performance outcome PO3 of the Heritage overlay code.
Performance outcome PO4 of the Heritage overlay code requires development to be based on the issues relevant to the conservation of the heritage place.
As I have already noted, the second criterion of the Statement of Significance included in the Brisbane City Council Heritage Citation says that the heritage place is significant as “an example of a sporting and social facility, it has operated in Yeronga from the pre-World War 1 era to the present day”.
The initial fabric of the heritage place was the MacGregor Green. Its destruction would not allow the proposed development to be based on the issues relevant to the conservation of the heritage place. The only physical link that the heritage place has to the pre-World War 1 era as an operational bowls club is the MacGregor Green. The destruction of that element of the heritage place conflicts with performance outcome PO4.
The purpose of the Heritage overlay code is to, amongst other things, implement the policy direction in the Strategic framework.
Section 3.4.1(1)(c) of the Strategic framework intends that “Brisbane’s character elements and built cultural heritage are appreciated, protected and managed.” Similarly, specific outcome SO19 and land use strategy L19.1 and L19.3 seek to protect Brisbane’s important buildings and places. These provisions indicate a clear policy to protect and enhance places of importance to Brisbane’s history that have cultural heritage significance. For the reasons set out in paragraphs [16] to [52] above, the proposed development does not accord with this planning intent and is therefore in conflict with the Strategic framework. As such, the proposed development is discordant with the identified purpose of the Heritage overlay code. It does not assist in the implementation of the policy direction of the Strategic framework.
For reasons provided above, a decision to approve the proposed development would also conflict with overall outcomes (2)(a) and (2)(b) of the Heritage overlay code. Those overall outcomes require that development on a heritage place does not detract from the cultural heritage significance of the heritage place, and that re-use of a heritage place is compatible with, and retains, the place’s cultural heritage significance.
Lennium Group has not demonstrated that the impact on heritage values are acceptable.
Is the proposed use appropriate in the Sport and recreation zone?
The Council alleges that the proposed development involves an inappropriate use of land in the Sport and recreation zone. It alleges that approval of the development would conflict with the Strategic framework, in particular land use strategy L6.1 for Element 2.4 in s 3.4.5. It also alleges conflict with overall outcomes (4)(a), (b) and (h) of the Sport and recreation zone code and the purpose of the code. Ms Johnston, Mr Morris and Mr Read join in those allegations. Ms Johnston also alleges conflict with strategic outcome 3.4.1(1)(p) of the Strategic framework and each of the residents allege conflict with a number of additional provisions in the Strategic framework.
Would approval of the proposed development conflict with land use strategy L6.1?
The dispute between the parties about compliance with land use strategy L6.1 is twofold. It relates to:
(a) the proper construction of land use strategy L6.1; and
(b) whether Lennium Group has demonstrated that approval of the proposed development would not conflict with land use strategy L6.1.
What is the proper construction of land use strategy L6.1?
Land use strategy L6.1 for Element 2.4 in s 3.4.5 of the Strategic framework requires:
“Development protects the land used for privately owned sport and recreation facilities, such that:
(a) the sport and recreation use is retained;
(b)if redeveloped, the land is re-used for another form of sport or recreation use;
(c)the land is only used for another purpose where it can be demonstrably shown that the use has been relocated within the locality or is absolutely not required by the Brisbane community any longer.”
The Council submits this provision sets a very high bar for redevelopment of sport and recreation zoned land. It says it requires Lennium Group to demonstrate that the part of the land to be used for multiple dwellings is absolutely no longer required:
(a) not just in the locality but by the Brisbane community;
(b) for bowls, whether social or otherwise;
(c) for any of what is a broad range of sport and recreational activities; and
(d) for the even broader range of uses that are “community facilities”.
Lennium Group submits land use strategy L6.1(c) permits land to be used for another purpose where it can be demonstrably shown that the use:
(a) has been relocated within the locality; or
(b) is absolutely not required by the Brisbane community any longer.
In oral submissions, Mr Skoien said this strategy promotes and encourages reuse of land for purposes other than sport and recreation.
Lennium Group says the Council’s approach involves two errors. First, it is not the land that must absolutely be no longer be required, rather it is the use. Second, the Council’s position ignores that the provision admits of an alternative, namely that the use has relocated.
Lennium Group accepts it has not demonstrated that the existing lawn bowls use is absolutely not required by the Brisbane community. It accepts the lawn bowls use is required. However, it says the use in question, being the Yeronga Bowls Club, has not ceased and will not need to be relocated as it will continue on the Barclay Green. Alternatively, Lennium Group says if the use in question is to be construed only as the bowling use of the MacGregor Green, then that use has relocated to the adjoining Barclay Green. In such circumstances, it says there is no conflict with the Strategic framework.
Sub-paragraph (c) of land use strategy L6.1 is to be read in the context of the whole provision.[14] It is also to be read in the context of City Plan as a whole and as intending to give effect to harmonious goals.[15]
[14]Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 94 [52], 95 [55] and [56].
[15]Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 94 [52], 95 [55] and [56].
The overall planning objective, to which each of the sub-paragraphs are directed, is that “development protects the land used for privately owned sport and recreation facilities”.
The first mechanism for protecting the land is by retaining the sport and recreation use. Overall outcome (4)(e) of the Sport and recreation zone code provides a useful example of the type of development proposal that would comply with this provision, namely a proposal for a compatible land use, such as a food and drink outlet. That is an example of an additional use of the land that complements the leisure and recreation experience of users and retains the sport and recreation use of land.
The second mechanism provided in land use strategy L6.1 contemplates redevelopment of the land. In those situations, the provision requires the land to be re-used for another form of sport or recreation use. This is unsurprising given redevelopment for a use other than sport and recreation would likely alienating the land from the finite pool of land available for sport and recreation purposes. A mechanism that limits redevelopment opportunities to those involving another sport and recreation use is consistent with, and supported by, the purpose statement in s 6.2.3.1(2)(c) and overall outcome (4)(h) of the Sport and recreation zone code. Those provisions seek the maintenance of privately-owned sport and recreation land as part of the network of community facilities and uses, and require the land to be re-used for sport, recreation, cultural or community facilities or services should the current activity cease. The planning outcome sought is also consistent with specific outcome SO31 and land use strategy L31 for Element 4.2 in s 3.6.3 of the Strategic framework. Specific outcome SO31 seeks enhancement of Brisbane’s existing sporting and recreational facilities. The associated land use strategy L31 indicates that this can be achieved by development maximising the use of existing sport and recreation facilities, including through the development of compatible mixed uses.
The third mechanism for the protection of the land for sport and recreation is that provided for in sub-paragraph (c). The grammatical structure of this provision is difficult. However, the planning purpose is apparent when sub-paragraph (c) is read in its context. The focus of the land use strategy L6.1 is the protection of sport and recreation land from alienation for other purposes. Consideration of the broader planning context[16] supports that statutory construction. Sport and recreation zoned land is a valuable community asset. Once lost, it is gone forever. The provisions of the Sport and recreation zone code are unambiguous in their intent. They seek to protect land in the Sport and recreation zone for sport and recreation purposes, including by maintaining the role of privately-owned sport and recreation zoned land. To permit land to be lost to sport and recreation uses because the Brisbane community no longer requires a particular form of sport or recreation is not a strategy that would achieve the associated specific outcome, namely that Brisbane has enhanced sport and recreation facilities.[17]
[16]The broader planning context includes s 3.4.1 strategic outcome (1)(p) of the Strategic framework, s 3.4.5 Element 2.4 specific outcome SO1 and land use strategies L1.3 and L1.5, s 3.4.5 Element 2.4 specific outcome SO2 and land use strategy L2.2, s 3.4.5 Element 2.4 specific outcome SO8 and land use strategy L8.1, s 3.6.3 Element 4.2 specific outcome SO31 and land use strategy L31 of the Strategic framework. See also the purpose in s 6.2.3.1(1) and (2) of the Sport and recreation zone code and overall outcome (4)(e) of the Sport and recreation zone code.
[17]Section 3.1(3)(f) of the Strategic framework records that, for the purpose of describing the policy direction for the planning scheme, the Strategic framework is structured to provide land use strategies for achieving the associated specific outcomes.
For those reasons, I do not accept Lennium Group’s construction of land use strategy L6.1.
Has Lennium Group demonstrated approval of the proposed development would not conflict with land use strategy L6.1?
The Council submits approval of the proposed development would conflict with land use strategy L6.1 and the conflict is profound.
During oral submissions, Mr Skoien submitted that the proposed development complies with sub-paragraph (a) and the first limb of sub-paragraph (c) of land use strategy L6.1. He submitted that the sport and recreation use will be retained as the Yeronga Bowls Club will be retained following approval of the proposed development. Lennium Group also submits that, if the relevant use is that of the MacGregor Green, that use will be relocated to the Barclay Green.
Lennium Group’s submissions are premised on its position that the proposed development, considered “sensibly and pragmatically”, involves the provision of funds to the Association to aid its reorganisation and continued operation.
These submissions ignore the evidence and inappropriately conflate Lennium Group’s planning proposal with its private economic decision to purchase part of the subject land prior to obtaining a development approval. That part of the subject land occupied by the MacGregor Green has been sold. The sale was not conditional upon receipt of development approval. The Association has received the proceeds of sale in return for the transfer of ownership. The future prosperity of the Association does not rise or fall on the approval of the proposed development. A decision to approve the proposed development does nothing to assist the continued operation of the Association or its continued use of the balance of the subject land. Lennium Group’s speculative financial decision is not relevant to whether a decision to approve the proposed development would comply with City Plan. The approval or refusal of the proposed development is immaterial to the ongoing operation of the Association. Lennium Group seeks to pursue its redevelopment regardless of whether the Association continues to operate.[18]
[18]There is some doubt as to whether the Yeronga Bowls Club will continue. A letter of support from the Association provided with the development application indicated that the Association intended to use the funds from the sale of the MacGregor green to refurbish the club house and to otherwise invest the money in perpetual trust to fund ongoing operations and maintenance of the Barclay green and club house development. However, Mr Morris’ cross-examination of Mr McClelland revealed that, despite having the sale proceeds for almost 18 months, the Association has taken very few of the actions referred to in the letter. Further, the reports of the President and Treasurer record that the sale of the MacGregor green has made it hard to attract new members. No doubt, the Association’s rejection of applications for new membership over the last four years has not assisted.
There is no link, in terms of town planning or otherwise, between approval of the proposed development and the bowls use on the balance land. The proposed development does not advance any condition or other planning mechanism to provide for the ongoing bowls use. It does not, for example, propose the creation of a community title scheme with the Barclay Green and clubhouse in common property and a condition requiring the maintenance of the use of the bowls club on the common property. The absence of a link between the proposed development and the retention or relocation of the use was confirmed by Mr McClelland during cross-examination. He acknowledged that the Association has the money in the bank and will retain it regardless of whether the proposed development is approved.
In contrast, approval of the proposed development could affect the continued use of the MacGregor Green. At the time of the hearing, Lennium Group was permitting the Association to use the MacGregor Green pursuant to a lease. Under the lease, the Association had to pay $1 per year. It was also responsible for maintaining the land, and was liable for any rates. As Lennium Group now owns that part of the land occupied by the MacGregor Green it cannot be, nor is it, assumed that the Association will continue to be permitted to use the MacGregor Green for bowling. Renewal of the lease is a commercial matter for Lennium Group. However, as long as the green is preserved, the possibility remains, as slim as that possibility may be.[19] Approval of the proposed development and redevelopment of the land removes the possibility.
[19]Correspondence from the Appellant to the Yeronga Bowls Club dated 20 August 2018 indicated that when the current lease expires, a new lease is proposed at $33 000 per annum plus GST plus outgoings. Mr McClelland indicated the Yeronga Bowls Club intended to reject the offer.
With respect to relocation, Lennium Group has failed to “demonstrably show” that the use “has been relocated”. At the time of the hearing, the MacGregor Green was still being used for bowls. As such, I reject Lennium Group’s submissions with respect to retention and relocation of the use. Consequently, even if I accepted the construction of land use strategy L6.1 for which Lennium Group contends, it has not demonstrated compliance with the provision.
Approval of the proposed development will result in the historic Macgregor Green being replaced by a multiple unit dwelling. The sport and recreation use of that land is not retained. Approval of the proposed development would also not result in that land in the Sport and recreation zone being reused for sport, recreation, cultural or community facilities or services, due to the replacement of the MacGregor Green with a multiple unit dwelling.
Accordingly, the proposed development does not comply with sub-paragraphs (a), (b) or the first limb in sub-paragraph (c) of land use strategy L6.1.
Lennium Group and the Council called evidence from park and recreation planning experts to assist the court in determining whether the land proposed to be developed is absolutely no longer required by the Brisbane community for sport and recreation purposes. Mr Mason was called by Lennium Group and Mr Alston was called by the Council.
In their joint expert report, the experts compared the available supply of sport and recreation and open space zoned land within a two-kilometre catchment (but excluding land on the western side of the Brisbane River) to the “required supply”. The available supply included the Yeronga Memorial Park, which is a large park that has a wide variety of existing facilities and sport and recreation opportunities situated about 450 metres from the land. The “required supply” was calculated by reference to the desired standard of service contained in the draft Local Government Infrastructure Plan. On the basis of their analysis, the experts opined that there is enough open space land in the catchment of the land and that the land is not required for a public recreation or sporting park. I do not accept their opinion for five reasons.
First, the comparison of the “required supply” of trunk park infrastructure to the current supply shows a current deficit of approximately nine hectares of public sport and recreation zoned land in the catchment. Given the Council has not indicated an intention to acquire any additional land for open space within the catchment area, the deficit supports the need to retain other sport and recreation opportunities that presently exist, such as that on privately owned land.
Second, the analysis of the “required supply” of trunk park infrastructure is based on the estimated 2016 catchment population. During cross-examination, Mr Mason confirmed that the analysis did not provide for an increase in population. The experts did not have the population projections for the long term. In those circumstances, the opinion of the experts about the adequacy of the supply for the projected future population to 2036 is inherently unreliable. Increases in the population of the catchment in the coming years will exacerbate the extent of the shortfall already identified by the experts. Mr Mason accepted this.
Third, the analysis ignores that the purpose of the Local Government Infrastructure Plan is to integrate infrastructure planning with the land use planning identified in the planning scheme. The Council’s land use planning in City Plan informs its infrastructure planning, including plans for acquisition of additional land for open space within the catchment area. The land use planning includes a clear policy objective, evident in the Strategic framework and the Sport and recreation zone code, that privately-owned land in the Sport and recreation zone will be maintained for sport and recreation purposes. The maintenance of sport and recreation land reduces the need for acquisition of further land for that purpose.
Fourth, the experts’ opinion was informed by their assumption that the area of the subject land (which they say is 2 275 square metres) does not meet the minimum land area according to the Council’s desired standard of service for local informal recreation park, being 5 000 square metres. I do not accept the validity of this assumption. The minimum land area in the Council’s desired standard of service for local informal recreation park relates to public parks. It does not apply to privately owned sport and recreation land. Further, and in any event, the area of the subject land, being the whole of the Yeronga Bowls Club, is 5 230 square metres. If anything, the Council’s desired standard of service reinforces the importance of maintaining the whole of the subject land for sport and recreation, rather than fragmenting the available parcel by approving the proposed development.
Fifth, even if I were to accept the analysis, it is insufficient to demonstrate compliance with land use strategy L6.1. That provision requires Lennium Group to demonstrate there is no need in Brisbane, not just within a two-kilometre catchment.
Lennium Group otherwise seeks to discharge its onus on three other bases. First, it submits there are two lawn bowls greens within Yeronga Memorial Park, in public ownership, that have fallen into disuse, are currently in disrepair (as bowling greens) but that can be used for the purpose of lawn bowls, or some other sport or recreation use, if there is any need for such use. Second, it submits that a lawn bowls use of the MacGregor Green is not viable. Third, it submits the MacGregor Green is not suitable for alternative sport and recreations uses.
Ms Johnston cross-examined Mr Mason about the possibility of use of Yeronga Memorial Park. During the cross-examination, Ms Johnston drew Mr Mason’s attention to two letters she had received from the Council. They indicate that the Yeronga Memorial Park is a heritage property and is State land held in trust by the Council. They suggest that a Land and Conservation Management Plan precludes the establishment of additional leases or licences over the park. Mr Mason acknowledged that the park was a heritage listed park. He did not know whether there were restrictions over use of the Yeronga Memorial Park.
Lennium Group has not established that the two lawn bowls greens within Yeronga Memorial Park could be used for the purpose of lawn bowls or some other sport and recreation use.[20] Further, even if Yeronga Memorial Park was available for use, that does not establish that the subject land is absolutely no longer required for bowls.
[20]No evidence was led by Ms Johnston to establish the truth of the contents of the letters. They are, however, sufficient to put in issue the fact that there may be restrictions on the use of Memorial Park. Ms Johnston has met the evidential burden. It is for Lennium Group to discharge the legal burden.
Mr Mason gave evidence about the viability of the lawn bowls use. He was of the view that the sport of lawn bowls was in serious decline. His view was informed by data compiled under the auspices of the Australian Sports Commission and the Australian Bureau of Statistics, including surveys undertaken in 2003, 2006 and 2010 and a 2013 report. That data does not accord with the more recent information available from Bowls Australia.
The information produced by Bowls Australia indicates that although, on a State-wide basis, lawn bowls has suffered some decline in membership numbers, participation in social lawn bowls programs grew by approximately 20 per cent between 2010 and 2017. In the last 12 months, 417 072 individuals participated in social programs, such as barefoot bowls. Nationally, over the period of 2010 to 2017, participation increased at an annual average rate of 3.9 per cent. There was 5.9 per cent growth in total participation numbers for bowls nationally in the past year. In the last 12 months, total participation nationally increased from 633 865 to 671 316.
Having regard to the Bowls Australia Annual Reports, it seems the national growth of bowls has largely been driven by an increased focus on school programs (such as the “Junior Jack Attack” program) and “Jack Attack”. “Jack Attack” is a short format product for social bowls.
Mr Mason accepts that there has been a “startling rise” in social participation in bowls. He accepts that there is a clear intention on the part of Bowls Australia to engage with a younger membership base, and that such a focus is likely to lead to growth in the game over the short term. This renewed interest in the sport is occurring in a context where the number of bowls clubs is diminishing.
In light of the more recent available data about participation in lawn bowls, I am not persuaded that Mr Mason’s views about the decline of the sport are soundly based.
Lennium Group submits the perilous financial position of the Association over the last few years clearly reflect the difficulties that have faced lawn bowls in Australia, particularly Queensland, in recent times. It also submits that the uncontested evidence indicates that the Association does not need the MacGregor Green to continue to operate, now or in the future, and that the MacGregor Green has been a financial burden upon the continued operation of the Association. Lennium Group relies on the statement of Mr McClelland in support of these submissions.
Mr McClelland has been the Chairman of the Association for over four years. He says that membership has been in steady decline, and he considers it unlikely to improve. He also attests to the decline in the financial situation of the Association in recent years and suggests that the sale of the MacGregor Green was necessary to obtain funds to refurbish the clubhouse so as to attract new members.
I accept that in recent years the Association has experienced financial difficulties. During cross-examination Mr McClelland accepted that when he was elected as Chairman in June 2013, the Association had turned a profit in the order of $50 000. In subsequent years under Mr McClelland’s stewardship, the Association sustained increasing losses. In 2014, the Association sustained a loss of $26 000. Those losses ballooned to $56 000 in 2015, $62 000 in 2016, $110 000 in 2017 and $130 000 in 2018.
In terms of the need for both greens, Mr McClelland says the Barclay Green is the primary green. It is used approximately two days per week to host bowls and other club events. The MacGregor Green is used occasionally to host barefoot bowls events for non-members. Mr McClelland says it is rare for both bowling greens to be used at the same time. He says it is not necessary to have both bowling greens available to the Association, even if membership were to improve in future years, and that there is no reason why the additional demand could not be accommodated on a single bowling green. This would save maintenance costs.
I have grave concerns about the reliability of a number of aspects of Mr McClelland’s evidence, particularly the evidence contained in his written statement. Mr McClelland’s general demeanour during his oral testimony was one of belligerence. In particular, I am unable to accept Mr McClelland’s evidence that the intention of the sale was to allow the Association to continue to operate and to restore and enhance the clubhouse and other facilities in the hope of attracting new members, as opposed to allow him to be repaid the $30 000 he loaned the Association.
Mr McClelland’s evidence of the intentions of the Association are consistent with those expressed in a letter dated 6 September 2016 that accompanied the development application. In that letter, the Treasurer of the Yeronga Bowls Club provided a list of ways the Association intended to use funds from the sale to refurbish the clubhouse and attract new members and visitors. The letter also said that the Management Committee intended to place the excess funds in perpetual trust and to use the annual interest earned to fund ongoing operations and maintenance of the Barclay Green and clubhouse. However, the actions of the Association do not support the statements made in this letter. Despite the unconditional receipt of $1.1 million from sale of the MacGregor Green in March 2017, a perpetual trust fund has not yet been established. Further, the only refurbishments that have been undertaken to the clubhouse are small things such as fixing the door to the ladies’ toilets. The Association has re-painted the hall, but that was undertaken because of a specific grant obtained for that purpose. The Association has no current plans to undertake the other works referred to in the letter, such as upgrading the kitchen, repairing the hall or establishing a coffee lounge to add an extra revenue stream.
Further, Mr McClelland’s evidence is inconsistent with the Bookkeeper’s Report in the Yeronga Bowls Club Inc 105th Annual Report and Financial Statement to 31 March 2018. That report indicated that the sale of the MacGregor Green provided funds needed to pay outstanding creditors and an unsecured loan provided by Mr McClelland.
During cross-examination by Mr Job QC, Mr McClelland admitted that although the members of the Association are not averse to barefoot bowls, no active steps have been taken in recent times to promote it. In fact, the Association has taken no active promotional steps of any form of late. It does not have a business or marketing plan to promote the Association or increase its membership. To the contrary, over the period of Mr McClelland’s stewardship, when the Association started to sustain losses and was in an increasingly precarious financial position, Mr McClelland rejected over 20 applications for membership. He rejected them because he said the names of the individuals made it obvious that the people were not interested in bowling, despite their declaration to the contrary in their application. He also said that new memberships to the Association were of no value “at the moment”.
The attitude of the Association to new members is highlighted by the minutes of the Yeronga Bowls Club Inc Management Committee meeting on 13 September 2018. It records that the Management Committee resolved:
“That any one who has become a full member not be eligible to take any money held with YBC to any other club from the date of the sale to Lennium Group which took place on 30 March 2017.”
It also records that a motion was passed “That all nominations for membership be suspended until further notice.”
Mr McClelland confirmed that if the Association folds, its finances, including those funds received from the sale of the MacGregor Green, would be divided amongst the full members. This appears to be the current intentions of the Association.
In a report prepared in May 2016, Mr Mason made three recommendations to the Association about how it could improve its long-term viability and improve the recreation opportunities available to the local area. He recommended that the Association prepare a strategic/club development plan, incorporate a multi-purpose program area capable of catering for community meeting/activities, and pursue a potential long-term integration with the Yeronga Services and Community Club. None of these recommendations have been implemented. During cross-examination, Mr McClelland acknowledged that the Association did not explore any options other than sale of part of the land. It did not, for example, explore the possibility of leasing part of the subject land or seeking a tenant. Instead, the “leadership committee”, comprised of Brett McClelland, Luke Kambouris, Marian Wilson and Dean Boyd, decided to sell the MacGregor Green to Lennium Group. It did so without taking the issue to the other members of the Association, or even the management committee.[21] Given the evidence of Mr McClelland about his management of the Association, it is unsurprising that none of Mr Mason’s recommendations have been pursued.
[21]Mr McClelland accepted during cross-examination that the Constitution of the Association provides for the business and operations of the Association to be controlled by a management committee of 10 or 11 people and does not make any provision for a leadership committee.
(e) the conclusion, to be gleaned from Mr Norling’s evidence, that there is a need for further multiple dwellings in Yeronga (as a Future Growth Node) that cannot be accommodated by the current capacity for supply of multiple dwellings.
There is a dispute between the town planners about whether the land is in a Future Growth Node under City Plan. Strategic Framework Map 3 is Brisbane Selected Transport Corridors and Growth Nodes Strategic Framework Map. It contains an indication of Future Growth Nodes. The map is not cadastral. Either way, it is apparent from land use strategy L1.3 under Element 5.8 of the Strategic framework that Future Growth Nodes are intended to be the subject of a future neighbourhood plan, or a comprehensive planning process that involves a local area and precinct approach, community consultation and consideration of the planning matters consistent with the scope of a neighbourhood plan prepared by the Council. As such, in isolation this factor does not establish a planning need.
The matters referred to in sub-paragraphs [291](b) to [291](d) are also not indicative of a planning need in circumstances where the land was not included in the Low-medium density residential zone.
Finally, the evidence does not support Lennium Group’s submission, noted in sub-paragraph [291](e) above, that a planning need can be gleaned from Mr Norling’s evidence. In his individual report, Mr Norling concluded that there was no planning need for the land to accommodate multiple dwellings. He opines that City Plan has more than sufficient capacity to accommodate demand for about 40 years and it has not identified the land as intended to accommodate multiple dwellings.
Mr Norling’s conclusion was expressed on the basis that the catchment, in which the land is located, has the capacity to develop 2 225 further multiple unit dwellings. This is the equivalent of about 40 years supply of multiple unit dwellings; a supply which is well beyond the life of the current City Plan and the next planning scheme.
Lennium Group submits that Mr Norling’s opinion is founded on five key errors.
The first error alleged by Lennium Group relates to Mr Norling’s reliance upon statistical areas identified by the Queensland Government Statistician Office for the purpose of population projections in the locality. Lennium Group submits that Mr Norling has treated the projections as driving town planning, rather than town planning driving the predictions.
The second alleged error is Mr Norling’s reliance upon erroneous population growth rates projected by the Queensland Government Statistician Office to identify the projected level of demand for new dwellings to 2036. The alleged error appears to relate to the fact that the statistical area used by Mr Norling includes other localities, namely Yeerongpilly and Tennyson.
The third alleged error is Mr Norling’s use of a 25 per cent discount rate to be applied to potential development or re-development of land in the Yeronga statistical area.
The fourth error alleged by Lennium Group is Mr Norling’s reliance upon just three large developments as a source of supply. That supply equates to more than three-quarters of Mr Norling’s predicted supply.
The fifth alleged error is Mr Norling’s failure to give any real consideration to the designation of Fairfield, Yeronga and Yeerongpilly as Future Growth Nodes under City Plan at the time of the preparation of his report and the fact that his conclusions do not cater for the change to City Plan which has identified Yeerongpilly as a Growth Node (rather than a Future Growth Node) under City Plan. Lennium Group submits this has particular relevance to Mr Norling’s reliance upon the supply expected to come from the Yeerongpilly Green development, which Mr Norling relies upon to deliver more than half of the supply of multiple dwellings to service any demand.
I do not accept that Mr Norling’s use of Yeronga statistical area 2 is a basis on which I should reject his opinions. The opinion is not founded on a purely mathematical calculation. In drawing conclusions from that data, Mr Norling has brought his experience to bear. He acknowledged that caution must be adopted in using the statistical areas at the level that he has used them. I am not persuaded that he did not apply the appropriate degree of caution in his use of that data, particularly given he accepts that there is an underlying demand for additional multiple dwellings in Yeronga. He accepts that it is a popular place to live.
When cross-examined about his demand analysis and the growth rates adopted, Mr Norling provided a credible explanation for his reliance on growth rates higher than that experienced over the last ten years. It takes into account its application to an elevated population. I accept Mr Norling’s explanation.
Mr Norling explained that in considering the demand for multiple dwellings, he took into account that City Plan seeks greater density near transport.
The other focus of the cross-examination of Mr Norling related to his analysis of the supply under City Plan. His analysis was based on information contained in Table 4 of his report. The cross-examination does not persuade me to reject Mr Norling’s opinions. Mr Norling confirmed that, even removing all of the supply noted in this table from his calculations, there would still be 30 years of supply available to the market; and even if available supply was 30 years not 40 years, Mr Norling was of the opinion that there would still be no planning need for the proposed development.
I do not accept that Mr Norling’s adoption of a general discount of 25 per cent for potential development or re-development of land in Yeronga statistical area 2 is erroneous or without foundation.
Some of the land in Table 4 may have difficulty achieving the extent of development assumed due to development constraints such as flooding. However, on the flip side, some of the houses included in both Mr Norling’s Table 4 and included in the Heritage overlay could potentially be developed for multiple unit dwellings. Not all houses in the overlay are pre-1946 homes or possess the requisite traditional character. Further, even where a dwelling may possess traditional character, there is sometimes potential for further development on the relevant land at the rear.
Mr Norling allowed for a 25 per cent discount. I am satisfied with his explanation as to its basis and consider it to be appropriate in this location. I place little store in the fact that he adopted a different discount figure in an analysis about the supply of land in a different part of Brisbane. The differences only seek to highlight that Mr Norling has brought his experience to bear. He provided a plausible explanation of the reasons for the differences.
I also do not accept that Mr Norling’s evidence should be rejected because of his reliance on three developments to provide 1 675 dwellings. The developments are yet to come to fruition. However, there is no evidence to suggest that Mr Norling’s assumptions about them are flawed.
In any event, Mr Norling’s consideration of available “supply” did not allow for the increased density of residential development that may occur in any of the growth nodes within his identified catchment area. As was explained by Mr Norling, if his analysis was changed to reflect the designation of Fairfield, Yeronga and Yeerongpilly as a Future Growth Node under City Plan and Yeerongpilly as a Growth Node, this would result in greater supply than had been predicted by him.
In the circumstances, I do not accept Lennium Group’s submission that Mr Norling has overstated the level of supply that could be provided by development or redevelopment of land in Yeronga.
There is no evidence that City Plan has made insufficient provision, in either Yeronga or more generally, for development of the type proposed. Mr Ovenden agreed with that proposition in cross-examination. City Plan is only four years old. It has been prepared with a 20-year horizon.
I accept Mr Norling’s opinion that there is no evidence of any unsatisfied demand on the part of City Plan for land sufficient to accommodate 30 units that is not being met by City Plan in its present form.
In the circumstances, no planning need for the proposed development has been demonstrated.
Lennium Group has not demonstrated that there are sufficient grounds to warrant approval of its proposed development in light of the identified conflict with City Plan.
Even if I were to accept that the proposed development provides benefits as suggested by Lennium Group, I am not satisfied that approval of the proposed development strikes an appropriate balance given the nature and extent of the conflicts.
Conclusion
Lennium Group has not discharged the onus. The appeal is accordingly dismissed.
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