Mills and Ors –v- Townsville City Council and Anor
[2003] QPEC 8
•21 March 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Mills & Ors –v- Townsville City Council & Anor [2003] QPEC 008
PARTIES: Christopher Anthony Richard MILLS, Nerolie Ann MILLS, Ian James LAMONT, Margaret Jean LAMONT, Robin Henry HARRISON, Lena Norma HARRISON, Allan Edward EVANS, and Vivien Clair EVANS
Appellants
TOWNSVILLE CITY COUNCIL
Respondent
RSL (QLD) WAR VETERANS’ HOMES LTD
(ACN 010 488 454)Co-respondent
FILE NO: 396/2002
PROCEEDING: Appeal
DELIVERED ON: 21 March 2003
DELIVERED AT: Townsville
HEARING DATES: 10, 11 & 12 March 2003
JUDGE:
CF Wall QC
ORDER: Further hearing of appeal adjourned to a date to be fixed to allow the parties the opportunity to reconsider the design in light of these reasons.
CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING – TOWN PLANNING– COUNCIL APPROVAL – CONSENT
LOCAL GOVERNMENT – TOWN PLANNING
Appeal against decision to approve nursing home – affect on amenity of locality – wh proposed development out of character with local area– wh application conflicts with strategic plan – size, height and design of building – perceptions of neighbouring residents – considerations relevant to assessment.
Case referred to:
Broad v Brisbane City Council (1986) 59 LGRA 296Legislation referred to:
Strategic Plan s 2.15.1, s 2.16.1, s 12.1COUNSEL: Mr DGH Turnbull - Appellants
Mr R Quirk – Respondent
Mr M Hinson SC with Mr B Job – Co-respondentSOLICITORS: Chris Mills Solicitor – Appellants
City Solicitor – Respondent
Thynne & Macartney – Co-repondent
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HIS HONOUR: This is an appeal by submitter objectors
against a decision of the Townsville City Council to
approve the co-respondent's application for a 30-bed
nursing home on land at Rowes Bay, Townsville.
The appellants are neighbouring residents. They do not
oppose a nursing home per se or a 30-bed nursing home and
recognise that there is a need for one. They oppose the
present proposal because they contend that by reason of
the size, bulk and height of the proposed building as a
consequence of which it is said to be institutional in
appearance, it is incompatible with the residential amenity
of the area. They do not object to the construction of a
nursing home. Rather, their case is that the present
proposal or design will detrimentally affect the amenity
of the local area to an unreasonable degree.
They refer to the "great continuous bulk" and height of the
proposed building and the fact that in their view, it is
"much too big", so much so that it will unreasonably
interfere with the amenity of the area. They do not dispute
that the nursing home is residential in nature or contend
that it need "look like a house". Rather, they object to
its size, which, they submit, is too big. They disclaimed
any intention to obstruct and are willing to cooperate to
any extent reasonably necessary to achieve a nursing home
development compatible with the surrounding area.
The onus of proof is on the co-respondent.
Details of the proposed nursing home and its immediate
location are shown in Exhibits 2A and 2B, as is the land
involved in the application. The respondent's planning
scheme is a transitional planning scheme.
The proposal is objected to on two main grounds:
Conflict with the strategic plan
Adverse effect on the amenity of the local area or
neighbourhood and residents in the respects contended
for in paragraphs 4(ii) and 6(i) and (ii) of the
amended notice of appeal as amplified during the
hearing of the appeal.
Those paragraphs are in the following terms:
"4. The proposed development will have an
unacceptable affect on the amenity of the
locality particularly having regard to:-
(ii) the size, scale, shape, facade, appearance and
building design which are incongruous with the
character of the surrounding residential area."
6. The reports and accompanying information provided
with the application were inadequate to
demonstrate:-
(i) the height of the proposed buildings on the
subject land in relation to existing/proposed
ground levels;
(ii) the height of the proposed buildings on the
subject land in relation to the height of the
residential dwellings on adjoining properties."
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The development application proposes a 30-bed nursing home.
The accompanying report by Brazier Motti (part of Exhibit 1)
provides the following particulars which are of relevance to
the issues raised in the appeal:
The part of Rowes Bay to the south-east of the site has
been developed for residential purposes on traditional
sized allotments
Adjoining land to the west contains a retirement
village (the RSL villas or complex). This is of a
domestic residential style
The proposed building has a "further development area
under the main building" designed to accommodate
"further beds" subject, though, to a separate
development application in the future
"While the proposed development is adjacent to
dwellings,...the generous setbacks and landscape
treatments will ensure that there is little measurable
impact on those properties"
The proposal compliments the retirement village, and
"The proposed development will contribute to the
established amenity of the area"
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Many of these statements are disputed by the appellants.
The application prompted many submissions and objections
from local residents, including the appellants. Only
Mr Lamont and Mrs Mills gave evidence, but their evidence
was consistent with the grounds of objection voiced by other
submitters. Those grounds, from Exhibit 1, include,
relevantly to the issues raised in the appeal:
The unprecedented height of the building for the area
and its domineering character
Provision for duplication of capacity
The proposed building in a residential area will
detract from the aesthetic appeal of the suburb, will
look odd, will have adverse impacts upon the
residential nature of the area, is not compatible
within the suburb
The size, bulk, character and design of the proposed
building
The proposed building is out of character, not only
with the existing RSL complex, but also with the
adjacent homes; three levels will overwhelm the
adjacent properties
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The social impact on the suburb
The affect on the quiet community aspect of Rowes Bay
The building would tower over existing residential
homes. It would be a large monstrosity, totally out
of place in Rowes Bay, an eyesore, totally out of
harmony with the residential homes
The building would physically block air flow to nearby
homes
10. The scale and concept of the building is simply
inappropriate, and
11. Visual amenity in that the proposed design is not in
keeping with the existing character of the area
There have been some changes to the building plans since
these objections, but not so much as to detract from their
substance.
There were also letters supporting the proposal, mainly on
the grounds of need. Some were from residents of the RSL
villas. Some of the submitters did not object to a one
level 30-bed nursing home, which, it was said, would
possibly not conflict with the existing amenity of the
suburb. This effectively is the position of the appellants.
JUDGMENT
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Mr Chris Schomburgk is a town planner who was retained by
the Council to report on the application. His conclusion
was expressed in the following terms in his report to the
Council (and this seems to have been accepted by the Council
in reaching its decision to approve the application):
"It is considered that the proposed development will
not significantly impact on the amenity of the
adjoining areas as the nursing home complex has
been appropriately sited and designed to ensure
the character of the local area will not be
reduced."
The Planning Scheme
The land is situated in the residential preferred dominant
land use area and the Strategic Plan allows in certain
circumstances "limited small scale intrusions of compatible
non-residential uses" (section 2.15.1). There is no
Development Control Plan applicable to the area. The
adjacent land is in the Residential 2 zone. The subject
land is zoned Special Purpose (Retirement Village and
Nursing Home). A nursing home such as is proposed is not a
non residential use, so the nursing home does not conflict
with this part of the Strategic Plan.
In a residential area, such as the present, the Strategic
Plan provides (section 2.15.1) that "the maximum height of
residential and other buildings will be two storeys above
ground level. In certain circumstances, three storeys above
ground level will be permissible. The scale of new
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buildings will be required to have regard to style and
character of adjacent buildings".
The first objective for the residential area (section
2.16.1) is "to promote a high standard of amenity."
To implement this objective, the Strategic Plan provides as
follows so far as is relevant to this appeal:
"(c) The Council will ensure that proposed
buildings, structures and other aspects of
any development would be compatible with the
desired character of the area
(i) The Council will ensure the creation of a
pleasant and vibrant environment and a
continuation of the distinct lifestyle that has
resulted from the influences of the climate,
geographic location, history, uniquely
Australian landmarks and natural assets of the
city and the region."
In considering these provisions, it is relevant to have
regard to the fact, as the respondents submit, that the
zoning of the subject land specifically allows construction
of a nursing home. Mr Mackenzie, the appellant's town
planner, also conceded that the zoning of the land is a
relevant circumstance in determining whether three storeys
should be permitted. The proposed building is three
storeys. I do not think that there is any conflict with
the Strategic Plan in this respect.
It is nevertheless necessary, though, as part of the task of
balancing the relevant factors, circumstances and competing
interests to consider the scale of the proposed building in
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the context of the style and character of adjacent
buildings, its compatibility with the desired character of
the area and its effect on the environment of the area. In
any event, it is conceded that these are normal planning
issues relevant to an assessment of the current proposal.
Paragraph 7 of section 2.15.1 of the Strategic Plan is in
the following terms:
"The 'Old Queenslander' character of much of the
existing housing, deals that new development in
those older areas will harmonise with the existing
streetscape, where appropriate. Council will take
into consideration the scale, bulk, setback and side
boundary clearance of proposed buildings and the
landscape treatment of the site."
Properly considered, I think this paragraph is restricted to
new development in older "Old Queenslander" areas and the
present area is not that. That is not to say, though, that
considerations of "scale, bulk, setback and side boundary
clearances" are not in any event relevant matters to
consider on general amenity grounds. This was also conceded
by the respondents.
The remaining part of the planning scheme to which reference
was made is section 12.1 dealing with the intent of the
Special Purpose zone. So far as is relevant, that provides
as follows:
"The Special Purpose Zone is intended to cater for
public purposes. Land included in this zone
comprises the following:
a) Land owned by the Crown and used or intended
for use by a State or Commonwealth Government
instrumentality for some public purpose, such
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as education, health, railways or defence. The
use of such land is effectively beyond the
control of Council. It is the responsibility
of the authority concerned to ensure that
development of such land is compatible with
surrounding areas and meets development
requirements.
d) Land owned or under the control of a private
organisation and used mainly for religious
purposes, hospital, education purposes or
purposes associated with the provisions of care
for aged, infirm or disadvantaged persons."
As written, the second paragraph of paragraph (a) would
appear to be limited to that paragraph and not also apply
to paragraph (c), but again the respondents conceded that it
is relevant in any event to consider whether the proposed
building is compatible with surrounding areas.
Whilst I am not satisfied that the present application
conflicts with the Strategic Plan, the provisions of the
Strategic Plan that I have referred to are nevertheless
relevant in the overall assessment process. Mr Schomburgk
agreed and in paragraph 2.2.3 of his report, Exhibit 12,
said:
"Notwithstanding this (that is the absence of
conflict with the Strategic Plan) it is good
planning practice, reflected also in other parts of
the scheme, to ensure compatibility with surrounding
development."
Amenity
This became the principal issue at the hearing.
JUDGMENT
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The subject land comprises a total area of about 1.7842
hectares and is relatively flat and vacant with no
significant vegetation. Land to the south-east of the site
across Havana street is residential, as is land to the
north-east fronting Palm Street. It is a pleasant seaside
suburb. The RSL villas and complex to the west do not
detract from the residential nature and feel of the area.
The existing RSL facility is all single storey. Apart from
this facility, the predominant form of housing in the area
is single family dwellings.
The subject land and some of the houses in Palm Street
are shown in the photographic exhibits, including Exhibits
3 and 2A, and the strip photo, part of Exhibit 11. The
photographic montage in Exhibit 2A depicts what part of
the proposed nursing home may look like in comparison
with nearby and adjacent houses, but it is a limited
representation only, determined in perspective terms by
the position occupied by the viewer opposite Havana Street.
Each photograph in the Exhibit 2A montage was also taken
from a position in front of the house photographed.
The nursing home will in fact extend behind all of number
46 (Mills) and behind nearly half of number 48 (Lamont)
as is apparent from the drawing, Exhibit 11A. I agree with
Mr Turnbull, counsel for the appellants, that Mr O'Toole's
montage minimises the visual impacts of the building and
does not give a clear or accurate view in all respects of
how the building will look when constructed.
JUDGMENT
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The Palm Street houses shown in the photographs just
mentioned are representative more of the type of houses
built in that part of Palm Street north of Havana Street.
Rowes Bay as a suburb, is residential in appearance and
style of housing. The predominant form of housing in the
area, apart from the RSL villas, is single family dwellings.
The RSL villas are residential in use and appearance.
The history behind the present application and aged care
design considerations are described by Mr O'Toole, the
co-respondent's architect, as follows in his report,
Exhibit 9:
"The site for the RSL Aged Care complex has been
in existence since the early 1990s when the
land was zoned 'Special Purposes' - Retirement
Village and Nursing Home.' The application is
the final stage of development of the
Retirement Complex which commenced in the early
1990s with independent Living Units (low care)
followed up by Hostels in mid 1990s (mid level
care) and now finally, a Nursing Home (high
care).
...
A Nursing Home incorporates a number of Residents
and Staff as well as activities and functions that
require it to be different in size and scale to a
'Typical' residential dwelling.
Aged Care is a 'life-cycle' process and the
buildings designed to accommodate each stage of
care reflect this process.
Initially, residents in a Retirement Complex are
quite mobile and independent so occupy semi-detached
self-contained 'independent living units'. These
units include their own separate kitchens,
dining/living and bedroom areas as well as an
attached garage or carport.
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As the level of care increases, relative to loss
of mobility and the ability to care for themselves,
residents move to large multi-bedroom homes called
Hostels. Cooking, living and dining areas in these
buildings become communal but residents still retain
a reasonable level of independence, but very few
retain motor vehicles at this time in their lives.
Finally, as mobility and the ability to care for
themselves is lost, or significantly impaired,
residents are accommodated in larger Nursing Homes.
Though residential in form and detailing, these
buildings are larger complexes set up to maximise
the medical care of the residents in an efficient
manner. Residents are accommodated in individual
wards cared for by medical and domestic staff. The
need for larger bedrooms, specialist treatment
rooms, sterilising suites, wide clearance hallways
and other support functions results in larger
complexes connected to the smaller hostels and
independent living units via secure covered links.
Because many of the residents are bedridden or
wheelchair bound, it is important to maximise the
opportunity for outlook and access to cooling
breezes from the Home. This limited mobility also
means that evacuation in the event of cyclonic
winds, flooding or storm surge is not preferred
and that the Nursing Home be designated as a Natural
Disaster - Safe Haven."
The proposed nursing home is described in the following
terms at pages 3, 5, 6 and 9 of Exhibit 9:
"The style of the Nursing Home, being itself
an accommodation facility, is, in my opinion,
residential in appearance employing pitched gable
and hip roofs, supported on coloured rendered
concrete block walls.
The Nursing Home is two storey in appearance
(excluding loft plant rooms).
Unlike a number of the adjacent dwellings the
proposed development will sit level with the
Palm Street footpath.
...
The appearance of the building when constructed will
be a two (2) storey structure with bands of windows
and first floor balcony handrails delineating the
levels, and two (2) 'loft' plant rooms projecting
through the ridge of the second storey roof.
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...
The building by definition is three storeys, however
because of its design it has the appearance of a 2
storey building and it interfaces with its
neighbours as such.
...
It is my opinion that the overwhelming majority
of homes (including those of the majority of the
Appellants) are two storeys in height and are large
homes by comparison to typical suburban dwellings,
being some 350-400 square metres in floor area due
to the value of the blocks and their owners' desire
to maximise frontage and height in relation to
breezes from and views to the Coral sea.
The highest design of the new Nursing Home was
undertaken by myself to achieve similar outcomes
to those afforded the adjacent Palm Street dwellings
- that is: an elevated sea view and exposure to the
prevailing sea breezes off Cleveland Bay. Also, as
a responsible planning contingency I have included
an undercroft to accommodate future growth should a
need arise.
It should also be pointed out that any enclosing of
the undercroft for any future use will have no
impact on the scale, bulk, style or setback of the
Nursing Home, as these works will be:
a. wholly contained within the envelope of the
proposed building; and
b. concealed behind courtyard and perimeter screen
fencing; and
c. screened by landscaping.
...
I have employed a number of strategies to mitigate
any perception of bulk in relation to the building
design:
The Footprint (plan form) of the building has
been stepped in and out along Havana Street
such that the projecting wings (bedroom
clusters) are separated by landscaped and
timber fenced courtyards, such that the layout
mirrors the separation of the detached housing
across the opposite side of Havana Street.
I have designed the Nursing home such that
either end of the building steps up from a
single storey (ground level) Amenities facility
to the two storey (high set) Accommodation
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wings containing the single bedrooms of
individual residents.
To further reduce the perception of bulk of
the proposed development the building's
airconditioning plant is to be concealed
inside 'loft' plant rooms (this kind of plant
is usually exposed to view and noise emissions
on the roof or side walls of buildings).
These plant rooms are contained within the
slope of the second storey roofs of the
building. This technique has increased the
cost of the building but improved the amenity
of surrounding residents and mitigated any
issues of plant and equipment noise and
appearance external to the building.
The design also includes generous overhangs
and shaded balconies and terraces to articulate
building appearance at the second storey. At
the first storey, (ground level) there are
curved roof forms, a shaded Porte Cochere and
inset garden beds that have been included to
vary the length and form of external walls;
and
To minimise the impact of bulk on the nearest
neighbour in Palm Street I have setback the
building in excess of double the minimum
requirement of six (6) metres to maintain views
from this neighbour's dwelling on the front
deck and side windows.
Although there are no limitations as to the
aesthetics or height of buildings designed within
the Special Purposes zone, responsible design
principles dictate that an Aged Care Nursing Home
in a residential area should be residential in
appearance and sympathetic to the surrounding built
form.
...
In summation, it is my opinion that the proposed
Nursing Home at Rowes Bay satisfied or exceeded
the following planning limitations as to its design:
5.1 Although not limited by height restrictions in
the Special Purposes Zone, the majority of the
building is two storeys and has its ground
floors set level with the Palm Street footpath.
5.2 Those components of the building that exceed
two storeys are limited to equipment plant
rooms which do not exceed 20 per cent of the
first floor area and therefore do not
constitute a storey. The purpose of these
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plant rooms is to improve the acoustic and
visual amenity of the surrounding residents.
5.3 Building setbacks to both street frontage and
side boundaries are at least double those
required by Statute for Residential Zone 1.
There are no minimum setback requirements
for Special Purposes zone.
5.4 The Architectural Design has incorporated
residential building elements such as timber
paling fences, bay windows, gable and Hip
roofs in keeping with the forms of the
surrounding houses.
5.5 The building construction has exploited
building materials such as rendered masonry
block, domestic window framing and profiled
metal sheet roofing sympathetic to the
detailing of the surrounding housing."
I cannot agree with Mr O'Toole that the style of the nursing
home is residential in appearance. Like Mr Blucher, the
appellants' architect, I think there is a distinct
institutional or large building character to it which will
make it appear quite out of character with the residential
nature of the area. This is because of its height and
associated large plant rooms.
When pressed in cross-examination by Mr Turnbull as to
whether he conceded that the building is institutional in
appearance as distinct from residential in appearance,
Mr O'Toole said, "No, I believe the building is probably
more akin to a multi residential development, I suppose."
I here detected almost reluctant acquiescence in
Mr Turnbull's proposition. To be fair, though, to
Mr O'Toole, apart from this answer, he was consistent in
his description and support of his design. In some
respects, though, I felt that he was obstinately reluctant
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to concede the obvious. I felt he had allowed what he
considered to be the residential type features of his design
to mask the objectively obvious bulk, scale and height and
non residential nature of the building.
Mr Mackenzie, the appellants' town planner, expressed a
similar view to that of Mr Blucher. In his report, Exhibit
11, he said:
"Whilst a Nursing Home is considered to be a form
of residential development, there is a distinction
between, and potential for conflict with other forms
of residential housing. The density, layout and
appearance of the proposed development is
non-residential and institutional in nature."
It is, I think, implicit in Mr O'Toole's report and his
evidence that some observers could perceive the bulk of the
building to be a matter of some concern, such as to require
the alleviating design strategies he has adopted and which
he also described in his evidence. Rather than reducing the
perception of bulk, I think that the "loft" plant rooms
highlight that perception and give it substance. Further,
I am not satisfied that the present design is in fact
residential in appearance and sympathetic to the surrounding
built form or the character of the Rowes Bay area.
Mr O'Toole would only concede in cross-examination by
Mr Turnbull that there are three storey elements in the
building, that there are floor cross sections through the
building where there are three storeys contained within the
roof space. For planning purposes, the parties agreed that
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it is a three storey building. I have not overlooked the
amenity and safety considerations which influenced
Mr O'Toole's design. I do not consider, though, that they
outweigh the adverse impact which the design will have on
the surrounding area.
I am unable to agree with Mr O'Toole's opinion, page 34 of
the transcript, that the building has the appearance of a
multi-residential development, not an institutional
development. What is proposed is a large building of a
distinctly non-residential character. Mr O'Toole recognised
(page 37 of the transcript) the need or desirability of
"blending" the building in with the residential amenity of
the area, but notwithstanding admirable efforts on his part,
I do not consider this to have been achieved.
Mr O'Toole was professionally passionate in his support
of his design and somewhat imperious and dogmatic when
responding to criticism of it. I thought he was a little
reluctant to concede the obvious when shown various
photographs and plans. At all times he attempted to
minimise the appearance of the building or at least its size
to the extent, I thought, of underestimating what it would
look like and how it would appear. He did not make
concessions when I thought concessions were warranted,
for example, the view of the eastern facade of the building
which would be apparent from the rear of the Mills and
Lamont houses at least.
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In comparative terms, when the two plant rooms are included,
the relative height of the building is 11.15 metres compared
to the Lamont house height of 8.52 metres. The two large
plant rooms measure approximately 14 metres by 14 metres or
196 square metres, slightly less than the floor area of one
level of the Mills house. Mr O'Toole agreed (page 61 of the
transcript) that each plant room is like a single storeyed
version of the Mills house, a metre in each direction
smaller. One would be seen from Havana Street and two from
Palm Street. Mr Blucher described them as "equivalent to a
residential dwelling in size" (Exhibit 11).
They are designed to house major large scale equipment,
air-conditioning plant for communal areas, the main intakes
for fresh air into the air-conditioning system and the
exhaust for the air-conditioning system and the toilets and
pan rooms. They also contain storage area, hot water units,
mechanical and electrical switchboards, lift over-runs for
the trolley lift, some computer hubs and reserve space for
additional or duplicated plant should the second stage
enclosing the undercroft for 30 additional nursing beds be
built.
This perhaps highlights the basic problem with the current
design of the building. The building is over-designed and
much larger than is necessary for a 30-bed nursing home and
this has caused its incompatibility with the surrounding
area. It is important not to lose sight of the fact that
what was applied for was a 30-bed nursing home, but what was
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effectively designed and approved was a nursing home which
is intended for future expansion within the existing
building footprint or envelope.
It is this over-design which makes the building large, bulky
and high and out of character with the locality. This has
also led to the proposed ground floor administration area,
436.6 square metres, being larger than it need be for a
30-bed nursing home combined with the area necessary to also
administer the existing RSL facility.
Mr O'Toole agreed that he had allowed for future development
by providing the undercroft. No criticism can be levelled
at Mr O'Toole for this because his brief (or part of it, see
page 65 of the transcript) indicated that what the
co-respondent ultimately intended in respect of
the building when it was fully developed was a 60-bed
nursing home, not a 30-bed nursing home. He said that the
plans he prepared are reflective of the brief that "I was
given." It is that brief which is productive of the amenity
problems.
To be fair to Mr O'Toole, the impression I got was that
he was being expected to justify his design by reference
to factors which may not have seemed as significant in the
design stage as they now are. To this extent, he was being
asked for an ex post facto justification by reference to
factors other than those of a purely architectural nature.
I think that Mr O'Toole has done the best he could,
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consistent with but also limited by his brief, to make a
non-sympathetic building sympathetic with the surrounding
area. He has not, however, in my view, succeeded.
The other reasons relied on by Mr O'Toole for his design
were also, in my view, in the nature of hindsight
justification for a building of the present dimensions.
Mr O'Toole also said that his brief did not specifically
call for a respite centre in the building design. He said
it was "one of the options, one of the alternatives". The
respite centre is "predominantly for the convenience of
people in the villas who might have perhaps a spouse who is
not capable of going shopping, so that spouse is left in the
respite centre and then the other person goes shopping."
The present design was criticised as effectively being that
for a 60-bed nursing home under the guise of a 30-bed
nursing home and I think there is substance in that
criticism. Mr O'Toole agreed that the style and bulk of
the proposed nursing home was not similar to the existing
RSL buildings which are smaller, semi-detached single
storeyed residences.
Mr Blucher accepted the heights in Table 1 of Mr O'Toole's
report, but was nevertheless of the opinion that the "bulk
of the building will still be extremely large in comparison
to the surrounding houses". Mr O'Toole's response to this
was as follows (Exhibit 9A):
"Should not be compared to houses. It should be
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compared to other 'Special Purposes' buildings such
as schools, hospitals, etc, which sit beside houses
on S P Zones and also are much larger than joint
dwellings."
That may be so, but it does not conceal the fact that this
building is much larger in scale than is required for a
30-bed nursing home and for that reason, it is out of kilter
with and not compatible with the surrounding area, even
accepting that many of the houses in the area are two
storeyed or high set. Mr O'Toole almost, but not quite,
agreed with Mr Turnbull's proposition that if the building
was reduced in bulk by removing the undercroft, that would
improve the amenity of the area when he said, "No, not
necessarily," "No, I don't think so," and, "I don't think it
offends the amenity of the area as it stands."
Mr O'Toole's somewhat circuitous response was that if there
was a problem with amenity, the proposal would not have been
approved "and I don't think there is a problem, hence it was
approved." (Page 84 of the transcript). In my view, it was
approved because the Council failed
to give proper consideration to the amenity aspects.
Mr O'Toole's position is probably encapsulated in the
following question and answer during cross-examination
by Mr Turnbull:
"I was wondering if you could assist him
with anything else that in your opinion might
be favourable to the appellants. You can say
nothing favourable to the appellants about that
issue of reducing-----?-- Well, if the surrounding
houses were single storey, which they're not, then
I think a development on this site that was single
storey would be an equitable amenity solution. The
houses around this are large homes, 450, 500 square
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metres, over two storeys. They are not small
dwellings. They are not single storey. We have
a predominantly two storey development set amongst
predominantly large two-storey houses. I don't
believe it impacts upon the amenity. I think if
it was dropped to single storey, the two-storey
dwellings would then overlook the RSL nursing home
and they would impact on its amenity. I think the
amenity is neutral at the moment."
To some extent this misunderstands the position in that it
is the effect on the amenity of the surrounding area which
is the issue, not the effect which the surrounding area will
have on the proposed development. Had this been understood
by Mr O'Toole, his answer as to neutrality would probably
have been different.
Mr O'Toole considered in fact that the loft plant rooms
improved "the amenity of the area because they conceal the
plant from view, from acoustic noise complaints, from
corrosion, from becoming debris in cyclones". I cannot
accept this evidence. The plant rooms are a major part of
the bulk, scale and height problems related to the current
design.
Mr Blucher's opinion, based on elevation comparisons, is
that the bulk and scale of the proposed development will
dwarf nearby residential dwellings. I agree. I also agree
with his conclusion as expressed in section 5 of his report,
Exhibit 11:
"The size, bulk, and height of the proposed building
is not compatible with the character and scale of
the existing surrounding residential development of
the area.
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The proposed building will have a dominant visual
impact due to its bulk and height.
Removal of the third level structures would
significantly diminish the bulk and height impact
of the building."
In his response report, he says the following, also in
relation to the plant rooms:
"The third level containing the plant rooms,
projects through the roof of the second level. The
walls projecting through the lower sections of the
roof visually add the third level and they
contribute significantly to the perceived scale and
bulk of the building, as compared to surrounding
residences."
I agree with those statements.
I prefer the opinions of Mr Blucher to those of Mr O'Toole.
I found Mr Blucher's opinions to be measured, balanced and
more objective than those of Mr O'Toole.
The town planners involved in the appeal all more or less
generally deferred to the architects as to building design
considerations, but in the case of those giving evidence
for the respondents, this I think produced a relatively
broad brush approach to the amenity issues raised in the
appeal. This was perhaps more apparent in their evidence
than their reports.
Mr Schomburgk's initial report to the Council contained the
following passages at pages 12, 13, and 16:
"Amenity and Aesthetics
In general the Planning Scheme indicates that
development should not detrimentally affect the
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amenity of the area generally surrounding or
immediately abutting the development or place undue
restriction on the future development of land in the
vicinity.
...
Building Height
The Planning Scheme does not contain any height
limitations for new developments within the Special
Purpose Zone. However, new development should not
be out of character with their surroundings. The
proposed nursing home is generally two storeys in
height, however the main building will have a height
that is equivalent to a three storey building
(approx 11 metres). This maximum building height
is only proposed for a small section of the building
and will be well separated for all adjoining
boundaries. The additional height has been included
as an architectural feature so that plant equipment
can be stored internally, to improve natural
ventilation and increase natural lighting
opportunities.
The building materials proposed reflect the
Queensland style and the building is well
articulated breaking up its appearance. While
the nursing home development is larger than many
of the adjoining residential dwellings it is not
considered out of character with the surrounding
area.
...
The higher part of the building contributes to
providing an aesthetically pleasing and quiet
building."
In her report, Exhibit 15, Miss Koloi, the Council's
planning officer, generally agreed with these statements,
but had some additional comments to make. She disagreed
with Mr Schomburgk as to height, considering the building by
definition to be a four storey development. In his report
prepared for the appeal, Exhibit 12, Mr Schomburgk appears
to concede four storeys. The appeal was conducted, though,
on the basis of three storeys.
Miss Koloi's additional comments included the following at
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pages 7, 8 and 9 of her report:
"Amenity and Aesthetics
...
I believe that the design, orientation and external
materials of the proposed structure are unlikely to
have a detrimental effect on the amenity of the
area.
Whilst it is acknowledged that the proposed
development is larger than the adjoining residential
dwellings I do not consider it to be out of
character with the surrounding built form.
...
Building Height
...
There are no height limitations imposed within the
Special Purposes Zone and no Development Control
Plan exists specifically for the Rowes Bay area.
Accordingly, I believe it is reasonable to allow
the proposed structure in this locality as it
appropriately reflects the heights of surrounding
buildings, ie, it does not significantly protrude
into the skyline above other buildings, and more
importantly it does not abuse the no height
limitations of the zoning.
Amenity
...
I do not believe that the design, orientation and
external materials of the proposed development are
likely to have a detrimental effect on the amenity
of the area.
Whilst it is acknowledged that the proposed
development is larger than the adjoining residential
dwellings I do not consider it to be significantly
out of character with the surrounding area."
In his report, Exhibit 12, Mr Schomburgk agreed that
considerations of scale and bulk are "relevant in a town
planning sense", but said "they would need to be considered
in light of the prevailing zones and land uses in the
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locality." (Paragraphs 3.3.4 and 3.3.5).
In evidence, Mr Schomburgk agreed that the Strategic
Plan required that the development be compatible with the
surrounding residential area. He agreed that the building
would be "very large" and that such a structure behind the
houses in Palm Street would be "unusual for Rowes Bay
where... the building form is predominantly single detached
houses". He also agreed that the issue "clearly fundamental
to this case and to many other cases where we are talking
about large buildings is the effect on amenity." He
conceded that "a smaller building designed to similar sort
of design criteria would have a lesser impact undoubtedly."
Finally, he agreed that the residents of Havana street would
be faced with a building "on a scale and size which dwarfs
the more modest of the residences in that street," but
considered it would not be dissimilar to what they should
have expected given the zoning of the site.
In relation to the fact that the building is designed for
future expansion, the following passage from his evidence
is illustrative:
"The inclusion of the undercroft in this particular
proposed building causes you no concerns, having
regard to the increase in bulk which is produced by
its-----?-- No, I was asked to and have assessed
the application in front of me, which included the
undercroft. I'm clearly aware that the undercroft
is intended for future expansion. As a planner,
that gives me some comfort, in fact, that the worst
impacts we are dealing with in this case here at
some future stage, if we were able to achieve
licences for the extra 30 beds or whatever, they
can be accommodated efficiently from the building
point of view and without any greater impacts than
JUDGMENT
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what we have already seen here. So, we are seeing
here, in my view, the worst case and I'm satisfied
as a planner that the worst case is satisfactory.
All right. So, the worst is over and the worst
is satisfactory; is that what you are saying,
basically?-- Yes. I'm saying this is the worst
case that they will ever see and I'm satisfied that
the outcomes are satisfactory."
This is suggestive of an assessment of a nursing home of a
scale, bulk and height much larger than is warranted by the
application with consequential amenity issues.
In her evidence, Miss Koloi agreed as to the obvious
significance of the difference in bulk, size and height
of the development and the surrounding houses, but
nevertheless believed it to be compatible with the
surrounding area. She also, however, seemed to have
approached the assessment of the application on a "not
the worst case" or "it could have been worse" basis. She
gave this evidence:
"But don't you have to address the issue of the size
of this building, its affect on the amenity of the
surrounding area?-- From an assessment point of
view, we look at the provisions of the planning
scheme and the Strategic Plan-----
Mmm?-- -----and as I said, the applicant could have
proposed a six storey development, just a round
figure-----
Right?-- -----and Council take into consideration
the residential 2 properties next door and across
the street and what is - basically makes up Rowes
Bay. We would have tried to negotiate a better
development outcome for the amenity of the residents
in Rowes Bay on Palm Street and on Havana street to
get a development that we have approved already.
So, I don't believe that the - the main bulk of the
building being two storey with protruding three
storey elements is that out - out of character with
what is there at the moment, considering what they
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could have applied for."
The remaining town planner supporting the development
was Mr Dance. For present purposes, he expressed his
conclusions as follows in his report, Exhibit 4:
"As a consequence of the zoning, there are few
performance standards or 'codes' that direct use
of the land. For instance, there are no density
or height limitations as apply in the residential
zones. Nevertheless, it is useful to have some
reference to residential standards as a general
guide, to ensure that development is compatible
with nearby residential use. In my opinion, the
proposal does represent a suitable response to the
relevant residential performance standards.
...
In my view, the development will not adversely
affect the amenity of the area. In any case, any
assessment of the likely impact on amenity should
be made against the reasonable expectations of the
neighbours. The reasonable expectations of the
neighbours should most certainly acknowledge the
zoning of the land and the probability that the RSL
facility would extend on this area, and within the
parameters allowed in the Special Purposes Zone.
...
I believe the building constitutes a three storey
building. Nevertheless, the building is
functionally a two storey building, and, in my
opinion, interfaces with its neighbours as such.
...
In my opinion, as a town planner rather than an
architect, there is no prevailing architectural
style evident in the area and thus, the development
could not be said to be incongruous with the
character of that surrounding residential area.
In my opinion, the development will not have a
detrimental effect on the amenity of the locality.
As mentioned earlier, any impact on amenity must be
measured against the reasonable expectations of the
public. The reasonable expectations of the public
should be formulated in light of the provisions of
the planning scheme and all of the local
circumstances including the existing pattern of
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development.
...
The height and scale are appropriate in the context
of the site area, setbacks and the height of
adjoining development.
...
The proposed development is obviously compatible
with the development in the area. It is of a modern
and innovative style and is at least the equal of
the surrounding built environment.
...
In my opinion, the development will do nothing to
reduce the lifestyle enjoyed by residents in the
area. In fact, the development will provide the
last development infill for the locality so that
residents can be assured that there will be no
further change to the character of the area for the
foreseeable future."
The last quoted opinion of Mr Dance is consistent with the
"this is bad as it will get" approach of Mr Schomburgk and
Miss Koloi. I also think too much weight is placed on the
"reasonable expectations" of the neighbours. Their
reasonable expectation surely is that what is applied for
and approved is consistent with the planning scheme and
normal town planning principles.
In his reply to the report of Mr Mackenzie, Mr Dance said:
"The fact that the building can be taken to be three
storeys as defined by the scheme does not preordain
that it is incompatible with the character of the
area. No part of the building is so high or
obtrusive as to be incompatible with the existing or
desired character of the surrounding area.
...
The Strategic Plan anticipates two, but in some
circumstances, three storey buildings in the
Residential area. It also expects that the scale
of new buildings should have regard to the style
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and character of adjacent buildings. I believe the
development proposal does this.
The building will obviously change the views of the
neighbours but certainly not to an unacceptable
degree. It is relevant that the adjoining
neighbours have developed so as to maximise views
towards the ocean, rather than to the site.
I do not believe that the development will have any
greater effect on privacy than might be caused by
conventional, two storey dwellings. Neighbours
should at all relevant times have had a reasonable
expectation that the land would be developed for
this purpose.
...
I am of the opinion that the effect of the
development on the local area will be minimal and
within the expectations that could be reasonably
maintained by the neighbours."
In evidence, Mr Dance appreciated the issue raised by this
part of the appeal. He said:
"I think the issue to be determined is - is whether
the building has such an adverse effect on the
amenity of adjoining property that it should not
be permitted.
...
The issue, from the planning point of view, is
simply whether the building has so severe an effect
on amenity that it shouldn't be approved."
He described the newer Palm Street houses as large by Rowes
Bay standards, taking advantage particularly of the outlooks
which are towards the sea. Most of the rest of Rowes Bay
houses are more modest high set and low set houses. The
surrounding area, of course, also includes the latter
housing. He agreed that looking from Palm Street in the
vicinity of the Mills and Lamont houses, the nursing home
would appear as a large building, considerably larger than
the nearby houses.
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He also agreed that the undercroft area of the building is
more than twice the size of the Mills land. The undercroft,
however, according to Mr Dance, presented as "a valuable
opportunity through a separate application process to expand
the development". Mr Dance's view was that the building
would clearly impact on existing residences but not to an
impermissible level given the distance between the building
and the residences and the required landscaping. He
conceded, though, that the view from the back of the Mills
and Lamont houses would be "substantially an unbroken wall
of a building, but it would be mitigated by what he
described as the generous landscaping." I am unable to
agree.
Notwithstanding that each of Mr Schomburgk, Miss Koloi and
Mr Dance said they appreciated the size of the proposed
building, I have reservations about whether they really
appreciated its size in relation to the purpose applied for
or the very large dimensions of the two loft plant rooms.
In amenity terms, I prefer the evidence of Mr Mackenzie
supported as it is by Mr Blucher, and the two appellants,
who gave evidence, Mr Lamont and Mr Mills. I accept the
evidence of Mr Mackenzie and Mr Blucher as to the nature
of the eastern facade of the building which would be
presented to the adjoining houses and above them.
Mr Mackenzie was at pains to point out that what is involved
here is a 30-bed nursing home and to emphasise the complete
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incompatibility in planning terms of the present proposal in
achieving that objective.
In my view, the amenity of the area generally and in the
immediate vicinity of the development will be adversely
affected by a building of this size, bulk and height. It
will be at odds with and clearly out of character with the
surrounding area. It will not be compatible. The plant
rooms will not be aesthetically pleasing. The building is
too big for the purpose applied for to the extent that
adverse amenity impacts will inevitably accrue.
By reason of its scale, bulk, size and height, the proposed
building is not compatible or sympathetic with the
surrounding area or within the total local environment.
It will be visually intrusive and nearby houses will suffer
from dominating effects as a result. It will, I think,
adversely impact upon the appearance of the locality. That
locality has an attractive, albeit mixed residential quality
to it. The building will, I think, sit above rather than
within that environment.
As Mr Justice Thomas said in Broad v. Brisbane City Council
and Another (1986) 59 LGRA 296 at 298 to 299:
"...the ultimate inquiry is an objective one at the
same time recognising that it involves wide-ranging
and subtle criteria that may affect different
individuals in different ways."
In this inquiry, the views and perceptions of ordinary
people living in the area are relevant. I do not think
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enough weight or consideration has been given to those views
up to now.
The size, bulk and height of the building is, in my opinion,
due to or contributed to by the following design features in
particular:
The undercroft area
The loft plant rooms
The size (not the fact of) the administration area and
its location, and
The respite centre, which is not an integral part of a
nursing home, and its location.
Setbacks and landscaping and broken facades are not
sufficient to detract from or mitigate the otherwise
unacceptable and adverse amenity impacts the building
will cause. The building, notwithstanding the efforts of
Mr O'Toole, will jar and be incompatible with the character
of the area. It will certainly adversely affect the
existing back views of some of the residents of Palm Street,
but some interference with those views is likely to be
inevitable, even with the smaller scale development.
The building will be domineering in size, bulk and height to
an impermissible extent and it need not be so. As currently
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21032003 T1-5/vlcr M/T TSVDC1/2003 (Wall DCJ)
designed, it is oversized for its purpose. It will have an
effect on the surrounding area and adjacent and nearby
houses and residents sufficiently severe and adverse as to
warrant refusal of the application.
I accept the evidence of Mr Lamont and Mrs Mills as to their
perceptions and concerns about the proposal. They are
consistent with the submissions of other residents who
objected during the assessment stage. I should mention
though, that little if any weight can be placed on their
expectations other than that all relevant planning matters
would be appropriately considered. Mr Mackenzie agreed that
it is reasonable to expect that a nursing home would be
constructed on the subject site and that is clearly so.
Mr Quirk for the Council properly conceded that the nursing
home would be located in what is basically a residential
area, even though it would be in its correct zone. He also
agreed that as a general planning consideration, it is
relevant to determine whether the proposed building would
be compatible with the character of the area; that
compatibility, style, character, zoning, amenity should all
be considered and that what was involved was a "balancing
exercise". Clearly the zoning confers a right to construct
a nursing home, but the various other factors are also
relevant in the assessment process, each receiving more or
less weight depending on the circumstances. Mr Quirk
conceded that the size and bulk of the nursing home is
relevant to whether it should be approved.
JUDGMENT
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I recognise, as was submitted by Mr Hinson SC for the
co-respondent, that section 2.15.1 of the Strategic Plan
provides that "regard" only had to be the "style and character
of adjacent buildings" and that this does not import a
requirement that the new building replicate or duplicate the
adjacent buildings. There is, though, a recognition that
compatibility and sympathy with the residential nature of
the area are factors which are also involved in the
balancing exercise.
Like Mr Quirk, Mr Hinson also conceded that matters such as
built form, size, scale, shape, facade, appearance and
design are relevant to consider in the normal impact
assessment process. These all have the potential to impact
on amenity and are relevant to a determination whether the
particular development will have an unacceptable impact on
the amenity of the surrounding area.
In the present case, for the reasons I have given, I
consider the nursing home as presently designed will have an
unacceptable impact on the amenity of the surrounding area,
or alternatively the co-respondent has not satisfied me that
it will not have such an effect.
Amenity is the benchmark by which other discreet issues are
considered and assessed. Traffic, noise, setbacks,
landscaping, roads, access, design, size, bulk, height,
appearance, views, ridgelines, building envelopes, verandas,
JUDGMENT
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21032003 T1-5/vlcr M/T TSVDC1/2003 (Wall DCJ)
footpaths, open space, recreational areas and the like are
all more or less relevant by reference to amenity in that
they are factors by which the affect which a proposal will
have on the community and the surrounding area and how it
will fit into and impact on that environment is measured.
The most important part of that environment is the
community: the people, the families, the businesses which
live and work and coexist in it. They are in fact the
environment, the area, the envelope or the footprint in
which a proposal must take its place, fit into and be
compatible with.
Mr Hinson put it correctly when he submitted that ultimately
the decision should be concerned with the community's
welfare and the community's interests, not just the
interests of the applicant for development approval or the
submitters against development approval. Planning schemes
are community documents which must be interpreted by
reference to the relevant community. They do not exist
in a vacuum divorced from the community which generate them.
They order that community.
Development cannot exist in a vacuum. Rather it must take
its place in an ordered environment in which others already
have or will have their place. The positions, perspectives,
rights and obligations of all parties must be understood and
considered in the balancing exercise which is involved in
planning decisions. The intent, aims and objectives of
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21032003 T1-5/vlcr M/T TSVDC1/2003 (Wall DCJ)
planning schemes are not to be regarded as mere motherhood
statements to be narrowly interpreted in pursuit of the
positive or the negative objective.
Whether a particular proposal is compatible with the
existing environment involves a genuine balancing exercise
in which the views of the people living in that area and
the area itself are to be properly considered. The views
of the local residents are not to be cursorily or quickly
rejected by a technical reference to planning scheme
provisions which are thought to permit or not impede a
development. Platitudinal dismissal of those views by
passing reference to setbacks and landscaping will often not
be acceptable because upon scrutiny, they may be exposed as
attempts to mask incompatibility. I am not of course
suggesting that the views of local residents should always
or necessarily be acted upon, rather that they be properly
considered in the balancing exercise.
In these circumstances, the co-respondent has not discharged
the onus resting upon it. I consider that the appeal should
be allowed, but rather than now formally making such an
order, the parties have agreed that I should adjourn the
further hearing of the appeal to allow them an opportunity
to reconsider the design of the nursing home in the light of
what I have said. That, I think, is a sensible suggestion.
The only order I will make at this stage then is that the
further hearing of the appeal be adjourned to a date to be
fixed.
JUDGMENT
38
0
0
0