Lilley v Brisbane City Council

[2003] QPEC 67

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lilley & Ors v Brisbane City Council & Anor [2003] QPEC 067

PARTIES:

CATHY LILLEY, IAN LILLEY, GREGORY HEWSON, LESLEE-ANNE HEWSON, JOAN WOOD, COLIN WOOD, JOHN DOUGLASS, ROSS LOVELL, HEATHER WAREHAM, JAMES DUNSTER, MARIA LUISA LOALDI FERRARIS, AMANDA ROSENFELD, JOHN DASH, LISA DASH, KARL SCOTT, CARL ROCHE, CATHERINE ROCHE, MARGARET REES, BARBARA TUCKERMAN
Appellants

v

BRISBANE CITY COUNCIL
Respondent

and

ANGLICAN CHURCH GRAMMAR SCHOOL
Co-Respondent

FILE NO/S:

138 of 2003

DIVISION:

Planning and Environment

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

22 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4, 5, 6 and 7 November 2003

JUDGE:

Judge Quirk

ORDER:

The appeal is dismissed

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – town planning – appeal against council approval – existing use – rowing shed – expansion of rowing facilities – conflict with planning instruments – amenity – noise – traffic – heritage

COUNSEL:

Mr M. Rackemann for the Respondent
Mr C. Hughes SC and Mr S ure for the Co-Respondent
Mrs C. Lilley (Self Represented) for the Appellants

SOLICITORS:

Brisbane City Legal Practice for the Respondent
Deacons for the Co-Respondent

1. This appeal, by adverse submitters, is against the respondent’s granting of approvals necessary to allow re-development of the rowing shed used by the Anglican Church Grammar School at Mowbray Park.  It has to be said, at the outset, that the proposal does not involve a change of use in the generally understood sense but the demolition of a structure which has outlived its usefulness and a replacement of it by a new, more attractive, effective and safe rowing shed complex.

1. The area upon which the rowing shed stands is the subject of a lease.  There will be no changes in any real sense to the land upon which the structures stand.  A modest increase in the leased area is contemplated to allow the more convenient manoeuvring of trailers moving boats to and from the site.

1. School rowing activities at Mowbray Park commenced in the mid 1930’s.  The shed, in its present form, is a simple rectangular wooden structure with a terracotta tiled roof.  The evidence, made very clear by an on-site inspection, is that it is over-crowded and able to provide only sub-standard toilet and changing facilities for the rowers.  The intended structure will, in its design and the provision of a mezzanine area, improve the utility of the shed substantially.  Competently designed landscaping is also intended.

1. In the appeal the school carries the onus of showing that the proposal should be approved.  However, as the evidence was given, it became clear that many of the concerns being expressed by the submitters arose from the very presence of Churchie rowers on the Mowbray Park shores of the river.  Even though the point was made that an approval in this case might “entrench” the use it has to be appreciated that success by the appellants would not necessarily mean an end to rowing activities on the land.

1. There were however a number of matters raised in the appeal that must be considered.  Broadly speaking the important issues were:

(1)alleged conflict with the relevant planning provisions and general planning issues;

(2)amenity issues (particularly noise);

(3) traffic issues; and

(4)heritage issues.

1. Because of the site’s long history as a venue for school rowing, the validity of these activities (in a planning control sense) is provided by existing use rights rather than any formal planning approval.  An important consequence of this is that this approval process presents an opportunity to put in place a suite of conditions to ensure an appropriate planning result where no such controls have, to date, existed. 

1. The subject application is one for a material change of use being, in this case, a material change in the intensity or scale of the existing use of the premises (s 1.3.5(c) of the Integrated Planning Act.  The Act (s 6.1.28) required the application to be processed in accordance with IDAS but assessed and decided having regard to the matters to which regard would have been given under the repealed Act including application of s 4.4(5) and (5A) of that Act (see s 6.1.29 and 6.1.30 of the IPA.).  The application must be decided on the basis of the provisions of the 1987 Town Plan although the court may give such weight as it considers appropriate to the provisions of City Plan (s 4.1.52)(2)(a)). 

1. In the Town Plan, Mowbray Park is included in the Open Space Zone.  In some of the planning assessments made the use was thought to be within the definition of “educational establishment”.  The result of this would be that it was a “prohibited use” in the Town Plan.  When one looks at the definition of educational establishment, incongruities at once become apparent as they often are when one has to struggle to find a place for a particular use in the defined terms of a Scheme.  A sensible reading of the definition suggests that it is intended to refer to schools and uses directly associated and located with school premises

1. While this is a rowing shed used by a school located some distance away, there any comparability with the school (in a planning sense) ends. As I see it the use fits more comfortably within the definition “outdoor sport and recreation”.  However, it is not necessary to dwell long on these difficulties.  Under the IPA (s 6.1.2)(3), the fact that the use might be prohibited in a former planning scheme is taken merely to be an “expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”  Even if the proposal was seen as an “educational establishment” an examination of what impacts this might have on the Plan’s strategies is called for. 

1. The Open Space Zone is “intended primarily to be used for informal and casual recreational pursuits”.  Other uses were allowed subject to consent and the suitability of those uses is determined by reference to a number of specified matters which include those that were discussed in this case.  These were questions to which planning consultants Dennis Mulcahy (for the school) and Dennis Brown (for the Council) gave close attention.  For reasons explained in their evidence they concluded favourably.  An unfavourable assessment was made by Mr Baker (consulted by the appellants).  General traffic questions were discussed in the evidence of Messrs Holland (for the school), Beard (for the Council) and Brameld (for the appellants).  All of these gentlemen are experienced traffic engineering consultants.

1. It must be kept in mind that the land in question is subject to a lease to the school from the Council. The lease is not under review in these proceedings.  To suppose that the strategies of the planning authority would be seriously prejudiced by use of the land consistently with the terms of the lease is a little unrealistic. 

1. Conflicts with the Strategic Plan which the appellants sought to raise seemed to come down to an assertion that both the existing and proposed use encroach into the park and this diminishes the capacity of the park to provide for the needs of the local community at a time when population (and the need for private open space) is increasing.  Mr Baker pointed to s 3.2.3.5 of the Strategic Plan which seeks to provide for “a wide range of high quality usable public open spaces offering a variety of environments and activities that cater for the diverse range of recreational and sporting needs of the community.”

1. However on the evidence given it is difficult to judge the proposal (seen for what it really is) as having any substantially detrimental effect upon the utility of Mowbray Park for the community.  It has to be said again that we are not here dealing with the introduction of a use but a re-arrangement of the facilities intended to allow appropriate continuance of a use which has been in place for well over half a century.

1. When considering the Strategic Plan’s intent to cater for community demand for recreational facilities along the river it would, in my view, be wrong to pretend that this very large and long established school is not part of that community.  If it has to be noted, the location of a rowing shed at a river bank location could hardly be unexpected.

1. Attention was drawn to the Strategic Plan’s reference to “greenspace corridors”.  Remembering the nature of the proposal it is hard to identify offence to these provisions.  On the evidence of the experts in the area of visual impact (Messrs Chenoweth and Kay) the proposed new shed and its attendant landscaping will be a marked improvement for those using the riverbank as a corridor.  On the evidence given I see no conflict arising between this proposal and the relevant provisions of the Town Plan. 

1. Turning to City Plan 2000, it has to be remembered that its applicability is a matter of weight. The appellants, in their case, referred to many of the provisions and codes from City Plan.  They were, in the main, matters which did not really involve substantial departures from the strategies of the superseded planning instrument.  The Desired Environmental Outcomes for the parkland areas and the codes application to the assessment of development in a park area were identified and considered.  It is true that a structure of the dimensions here intended is not contemplated by the acceptable solutions in the particular code but that is by no means the end of the matter.  The relevant performance criteria must be taken into account as must the purpose of the code.  On the evidence given no substantial offence to these provisions emerged.

1. One matter of substance is the appearance in City Plan of tighter controls in respect of areas of heritage importance.  The Heritage Place Code requires that consideration be given to the effect of any development on the cultural heritage significance of its location.  “Mowbray Park and East Brisbane War Memorial” is a listed heritage place.  The listing recognises the presence of the school’s rowing shed.  It is noted that:

“The boathouse, and the retaining wall and steps associated with the former baths, are evidence of the park’s riverside community recreational role”. 

1. There is no suggestion in the listing that the structure of the shed is itself of such architectural merit or interest as to warrant its retention.  This was confirmed by Mr Buchanan, an expert in this area, he carefully explained that it was the “recreational activity that it represents and its association with the school” that were important rather than the physical elements of the shed.  In this respect I prefer his evidence to that of Mr Richards who was called by the appellants.

1. This approach is reflected in the approach of the Heritage Council to whom the matter was referred and whose deliberations were placed before the court (Exhibit 45).  Recognising the importance of the continuing of the rowing use in the park being maintained, it supported demolition and replacement of the building “as a way of maintaining the use of the park as a base for rowing”.  Whilst the finding of the Council is not binding in this appeal, it must be accorded considerable weight.

1. With respect to amenity and traffic matters, again the appellant’s concerns flowed from the use of this part of the park by the school’s rowers rather than the re-building of the shed to enable the continuance of an existing use.  Evidence was given of what was seen as less than sympathetic and at times high-handed responses by those in authority at the school to reported concerns.  It was conceded however that in recent times things had changed for the better and the present Master-in-Charge of Rowing (Mr. Manifold), who gave evidence, presented as a responsible and thoughtful person who has endeavoured to foster harmony between the school’s rowing activities and the area’s residents.

1. Noise impacts were examined by experienced acoustic engineers, Mr Winders and Mr Kamst.  This is hardly a quiet area being dominated by traffic noise from Lytton Road.  The assessments of these experts indicated that rowing activities are being carried out with noise contained at acceptable levels.  This would seem to support the account of recent effective management given by Mr Manifold.

1. Passenger vehicles bringing rowers to the shed via Laidlaw Parade have been a problem for residents and attention has been given by school authorities to this difficulty.  Firm instructions have been given that parking and “drop-off” should occur only at the public parking area at the western end of Mowbray Park.  Some effort was made to suggest that the use of this park by those associated with rowing would disadvantage commuters seeking to use the nearby CityCat pontoon.  Aside from the problem of deciding who had the better entitlement to use the carparking, the evidence pointed to its really being a non-issue in that use by rowers is largely finished before commuters arrive in any strength.

1. It is true that narrow local street patterns have presented difficulties particularly in regard to the movement of boats on trailers to and from the site when this is required by regattas.  While there was a good deal of debate on the point no accidents or damage to these valuable boats appears to have occurred to date.  It does not seem to be a matter which would warrant the proposal’s rejection.

1. As to the suggestion of “entrenchment”, this pre-supposes that rowing activities by the school are, in themselves unacceptable.  The evidence does not suggest this is so and there is no real basis for suggesting that school rowing is something that should be phased out.  Indeed this would be quite contrary to opinions expressed in relation to the heritage importance of Mowbray Park.

1. The case for the appellants was presented thoroughly and with conviction.  I respect and understand the opinions which they have expressed.  However, for the reasons which I have stated I have not been able to see, in the evidence, any justification for the proposal’s rejection.  I find that the onus for showing that the application is one which should be approved has been discharged and the appeal is accordingly dismissed.