Nash v Brisbane City Council
[2009] QPEC 113
•20 November 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Nash v Brisbane City Council & Anor [2009] QPEC 113 |
PARTIES: | JAMES TASMAN NASH (Appellant) v BRISBANE CITY COUNCIL (Respondent) and COLLEEN ANN WILSON (Co-Respondent) |
FILE NO/S: | BD1163 of 2009 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning & Environment Court |
DELIVERED ON: | 20 November 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 and 20 October 2009 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | Integrated Planning Act 1997 (IPA) s 4.1.28, s 4.1.50(2) Submitter appeal against approval of (among other things) a “single unit dwelling” – proposal failed to meet acceptable solutions for lot size, plot ratio and height in Brisbane City Plan 2000 (Residential Design – Single Unit Dwelling Code) – whether underlying performance criteria satisfied – whether amenity impacts on neighbouring dwelling (sunlight, daylight and privacy) “minimised” – whether proposed building overbearing, inconsistent with low to medium density of locality – whether impacts of a compliant building similar or worse – whether there could be a “compliant building” at all given small size of proposed lot |
COUNSEL: | The Appellant appeared on his own behalf B Job for the Respondent W Cochrane for the Co-Respondent |
SOLICITORS: | The Appellant appeared on his own behalf Brisbane City Legal Practice for the Respondent Robert Milne Legal for the Co-Respondent |
This is an “adverse submitter” appeal by Mr Nash against the Council’s decision notified on 7 April 2009 to grant development permits for material change of use and reconfiguration and also grant preliminary approval under s 3.1.5 of the Integrated Planning Act 1997 (“IPA”) for the carrying out of building work in respect of the co-respondent Mrs Wilson’s 465m2 site at 176 Arthur Street, Fortitude Valley. The proposal involves two “single unit dwellings” one of which is an existing pre-1946 residence constructed close to the Arthur Street frontage. The site is within a Demolition Control Precinct; the existing residence is to be retained, but raised to create a basement of some 45m2. The second single unit dwelling is to be a free-standing structure in the “back yard” that has its own truncated frontage at the “back” of the site to the stub of Wandoo Street, which runs off Doggett Street (a significant thoroughfare in Fortitude Valley running parallel to Arthur Street). The width of the rectangular site generally is about 10.06m. The Wandoo Street road frontage is about 6.8m, the balance of that boundary being constituted by a concrete wall which is part of the “Cosmo” development, as it was described during the appeal (the current name is “Degree”). The reconfiguration will produce Lot 1 of 259m2 fronting Arthur Street and Lot 2 of 206m2, accessed from Wandoo Street. Those are tiny lots, but the locality features numerous examples of single dwellings on similar or smaller parcels.
Notwithstanding that the Council approved (and in the appeal continues to support) Mrs Wilson’s development application (dated 29 October 2007 and made on or about 1 November 2007), it is not for Mr Nash to satisfy the court that the appeal (brought under s 4.1.28) should be allowed; rather, it is for the other parties, the co-respondent, Mrs Wilson in particular, to persuade the court that it should be dismissed: s 4.1.50(2). The court’s conclusion, after careful consideration, is that the appeal should be refused. Mr Nash was self-represented and acquitted himself well, thanks no doubt to his own professional experience and to access to a lawyer in the family. He engaged the services of a town planner, Mr Forsyth. From the court’s point of view, the proceeding ran unremarkably; it is a matter of satisfaction that Mr Nash was able to pursue it to have the Council’s determination reviewed and it may be a matter of relief to him that he has been able to do so without risk as to costs. He made common cause with residents of other units in a two-storey wing of the Cosmo development (who will be the neighbours of the new single dwelling unit which in scale and orientation will be comparable). It is located in what no doubt were formerly the backyards of other pre-1946 dwellings in Arthur Street. Most (if not all) of these other Cosmo residents or owners, who have provided statements to the court (Dr Janet Hammill, Dr Imogen Patterson, Thomas Miers and Victoria Miller, also Emanuel Manov) were adverse submitters along with Mr Nash but did not elect to become parties before the court.
The Cosmo development is on a large site comprising the northern half of the notional city “block” bounded by Arthur Street, Wandoo Street, Doggett Street and James Street (it lacks any frontage to James Street). The four “worker’s cottages” or modern reproductions fronting Arthur Street (with site areas similar to proposed Lot 1 and proposed Lot 2) now operate as part of the mixed development now constructed. With the exception of the appellant’s wing, which has a 3m setback from the boundary with the site, the building is constructed right to the street alignment with commercial uses at ground level, residential uses above. The “wing” is two storeys, the building fronting Doggett Street four storeys, reducing to three in between. While other units in the development may have outlooks to both north (strictly, north-east) and south, the submitters’ units look only north. They have the advantage at present of a pleasant prospect across backyards bereft of construction (other than a carport and chook house), where there are substantial trees to boot. Beyond the site is an aggregation serving to extend the “unimproved” backyard prospect of what appear to be single detached residences but which the court is given to understand for planning purposes are multi-unit development on a single parcel owned by the Queensland Housing Commission. The Cosmo site, relevantly, is so characterised as well.
Mr Nash owns and resides in the top back unit of the two storey wing which has lofty ceilings under a sloped roof which rises to a maximum height at the Doggett Street end comparable with what is proposed for the new single dwelling unit, which will have three storeys. That may be seen as a transition from the four-storey development on the eastern side of Doggett Street on both sides of Wandoo Street down to three storeys and then to two storeys for Arthur Street and beyond, where established development is overwhelmingly residential. All of it accords with the relevant (James Street) intent in the planning scheme which, at the time of the development application relevantly provided in s 3.5:
“This is the transitional precinct between the retail, business and entertainment dominated Valley Heart and the predominantly residential area of New Farm. It is intended that the mix of commercial, retail, residential and recreational uses continue with a strong emphasis on new residential uses.
…
Commercial, retail and food and drink outlets are to be focused on Brunswick, James and McLachlan Streets clustering around established nodes. Residential uses are to dominate towards the boundary with New Farm. The inclusion of a residential component in the redevelopment of any non-residential site is encouraged where impacts are appropriately addressed.
Infill development, re-use of buildings and the retention of multiple narrow frontages is preferred over large scale redevelopment. New buildings should be low rise (generally two storeys) and have high quality architecture to reflect the urban location. Visual links to the City, the Central Brunswick site and Teneriffe are to be preserved and important streetscape elements promoted.”
The following Code provides:
“Performance Criteria
P1Building form must be appropriate to the scale and function of the Local Plan area and precinct character.
Acceptable Solutions
A1.1Where development is located in a Multi-purpose Centre, building height does not exceed 4 storeys and 14.4m above ground level.
A1.2Where development is located in the Low-medium Density Residential Area, building height does not exceed 2 storeys and 8.5m above ground level.”
Apropos the three-storey aspect, Mrs Wilson, the developer, relies on “generally” in the intent and on the performance criterion P1 in the Code being satisfied notwithstanding that Acceptable Solution A1.2 is not.
In similar vein, in Brisbane City Plan 2000 Vol. 1, Chapter 3, Section 5, sets out general provisions including Desired Environmental Outcomes for the five different Residential Areas of the City, the pertinent one of which is Low-Medium Density Residential Area. The list of DEOs applicable to all residential areas commences:
“4.1.1…
The following DEOs apply to all Residential Areas. Refer also to DEOs for each specific Area.
1.A range of housing types, sizes, tenures and affordability is provided throughout the City to enable residents to remain in their neighbourhood for their entire life if they wish.
2.Houses are located on new vacant lots that comply with the minimum size requirements provided in the Plan and the subdivision does not occur of existing or approved buildings including houses, so as to maintain the character and amenity of residential neighbourhoods and the expectation of residents.
3.Housing is predominantly low density, with higher densities in or near Multi-purpose Centres and near public transport.
4.Neighbourhoods have a sense of place based on their location, residential nature, heritage, topography, natural environment, built form and proximity to a local Centre.
5.Dwellings have reasonable access to daylight, sunlight and breezes and have privacy.
6.Houses on small lots are of a size and scale that ensures amenity impacts on other dwellings and their private open space is minimised.”
Number 5 will be noted. The proposal gains assistance from number 3, the Cosmo development serving to satisfy the locational requirement. The intent of the particular Low-medium Density Area is:
“5.4.1 Intent
The Low-medium Density Residential Area will contain a mix of houses up to 2 storeys and 2 and 3 storey multi-unit dwellings and single unit dwellings. Land in this Area is located in those parts of the City that are close to public transport networks or centres.
During the life of this plan, a relatively small proportion of land in this area will be redeveloped for multi-unit residential. New development must therefore be designed to co-exist comfortably with neighbouring houses. This will be reflected in the intensity and scale of development and a strict adherence to a maximum gross floor area of 50%, or 60% if in close proximity of public transport or on arterial roads.
Single unit dwellings are intended to encourage appropriate density and provide increased housing choice within neighbourhoods, whilst minimising impacts to residential amenity. Single unit dwellings also encourage the retention of character houses by allowing their retention on a very small freehold lot and their integration in development sites.
Parts of the Low-medium Density Residential Area are included in the Demolition Control Precincts. At these locations pre-1946 ‘timber and tin’ housing will be retained and new development will reflect pre-1946 architectural character. Where feasible, development in Demolition Control Precincts will incorporate pre-1946 dwellings at the front of the new development.
Building envelopes for houses on small lots are defined so that amenity impacts to nearby dwellings and their private open spaces are minimised, in terms of maintaining access to sunlight, daylight and privacy. The building envelopes also seek to increase safety from fire hazard, maximise private landscaped space for new houses and avoid overbearing development that would occur if the bulk and setbacks of houses were out of scale or character with houses on adjoining lots.
5.4.2 Desired Environmental Outcomes
1.Low-medium density living environments comprise houses, among multi-unit and single unit development at a house-compatible scale, predominantly of no more than 2 storeys. Higher densities and 3 storey buildings occur near Multi-purpose Centres, near public transport and along arterial roads.
2.The Area has a mix of housing types and forms at different levels of affordability with adequate safety, privacy, quiet and comfort. New residential developments are well designed and sensitive to the City’s climate.
3.Natural features such as creeks, gullies, waterways and vegetation are retained where they add to the character and amenity of the Area.
4.In Demolition Control Precincts pre-1946 ‘timber and tin’ buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.”
As a matter of interpretation, I think it is clear that single unit dwellings, like multi-unit dwellings up to three-storeys are intended, whereas houses are intended only up to two-storeys. I agree with the suggestion of Mr Venn (the co-respondent’s planning expert) that the consideration required towards “neighbouring houses” in terms of this intent is not required for the proposal’s neighbours, which are multi-unit dwellings. This follows from the definitions provided in Chapter 3 Section 10:
“House: a use of premises principally for residential occupation by a domestic group or individual/s, that may include a secondary dwelling, whether or not the building is attached, but does not include a single unit dwelling.
…
Single unit dwelling: a use of premises as a principal place of longer term residence by a household, domestic group or individual/s, whether or not in a building that is attached or detached, and the dwelling (including any land and building/structures that may be associated with the dwelling or part of the dwelling) is contained entirely on a lot that has:
· An average width of less than 10m and/or an area less than 400m2 (but does not include small corner lots with a minimum lot size of 350m2 as provided by Table 2 Lot Layout in the Subdivision Code), or
· An area less than 600m2 (excluding access way) if a rear lot.
For the purposes of applying this definition and corresponding provisions in the Plan, the term freehold lot is a Standard Format Plan only. Excluded from this definition are lots subject to Community Titles Schemes, Building Format and/or Volumetric Format Plans.
The definition of single unit dwelling does not apply to:
· Any existing dwellings approved as another use (e.g. an existing house on a lot below the sizes stated above). Extensions or alterations to these existing dwellings will be assessed according to the relevant provisions for that use (e.g. an extension to an existing house on a lot below the sizes stated above will be assessed as a small lot house), or
· Houses or multi-unit dwellings on existing vacant lots of the size stated above.”
Thus far, the planning instruments in my view are welcoming of the proposal. The appellant’s case is based squarely on the provisions of the applicable Residential Design – Single Unit Dwelling Code. It might be noted that no issues arise in respect of the single unit dwelling to be constituted by the pre-1946 house fronting Arthur Street which is to be raised (although the creation thereby of an additional 45m2 or so of basement space underneath is relied on in support of the contention that the plot ratio of the overall development is excessive). The Code thus relied on commences:
“
Performance Criteria Acceptable Solutions Building size, design and setting P1 Single unit dwellings minimise amenity impacts to neighbouring dwellings and their open space in terms of:
· Access to sunlight and daylight
· Privacy
Building size, bulk and height must be consistent with the low density nature of the locality (if in the Character Residential Area) or low to medium density nature of the locality (if in the Low-medium Density Residential Area)
Building size, bulk and height must not create overbearing development for neighbouring dwellings and their open space.
Buildings include an appropriate balance of built form and landscaped open space.
Buildings in the Character Residential Area must be of a domestic scale and be consistent in height with neighbouring houses. Any additional part of a building over 8.5m and/or 2 storeys in height above ground level must not:
· Result in a loss of views or outlook
· Reduce visual amenity of an area, particularly where the site is on a prominent ridgeline
A1.1 Gross floor area (calculated as an aggregate of all single unit dwellings only on the site)
Where in the Character Residential Area:
…
Where in the Low-medium Density Residential Area:
· 0.5 times the site area
OR
· 0.6 times the site area where the site has frontage to a road with a reserve width of 15.5m or more, and:
· any part of the site is within 200m radius of any pedestrian entry to a railway or busway station, or
· any part of the site fronts an arterial route, or
· no part of the site is next to a house (where no approval for multi-unit dwelling or single unit dwelling exists)
Note: Gross Floor Area may exceed the above percentages on an individual lot providing that the total GFA of all single unit dwellings, when calculated over all proposed single unit dwelling lots, does not exceed the maximum.
A1.2 The site area is a minimum of:
Where in the Character Residential Area:
…
Where in the Low-medium Density Residential Area:
· 600m2 and has a minimum frontage of 17m
A1.3 Building height at any point is no more than:
Where in the Character Residential Area:
…
Where in the Low-medium Density Residential Area:
· 8.5m above ground level and 2 storeys
OR
· 9.5m above ground level to the underside of eaves and 3 storeys where the site has frontage to a road with a reserve width of 15.5m or more, and any part of the site:
o Is within 200m radius of any pedestrian entry to a railway or busway station, or
o Fronts an arterial route, or
o Containing a building over 8.5m above ground level or over 2 storeys is more than 10m from any lot containing a house (where no approval for multi-unit dwellings or single unit dwelling exists)
”
None of the acceptable solutions is met. That is so notwithstanding that the plot ratio of 0.6 is available (both Arthur Street and Wandoo Street reserves exceeding 15.5m and the final dot point in A1.1 being satisfied) and that the concessional 9.5m height limit is available (for the same reasons). The site falls short of the 600m2 benchmark by 135m2; even if aggregating the two street frontages were permissible there will be a shortfall in street frontage. If the Acceptable Solutions were satisfied, the performance criterion P1 would be taken as satisfied (even if it were not). Here, the co-respondent must satisfy P1 in some other way. The impacts of the proposal upon the access to “sunlight and daylight” enjoyed by Mr Nash’s dwelling are significant, likewise those on the other three dwellings in his wing, as I have called it, and more so for those on the lower level. Shadow modelling has been conducted for the “worst case” on the shortest day of the year. I am content to accept Mr Forsyth’s estimate that there will be a loss of three hours of sunlight per day. By early afternoon, loss of direct sunlight is because of other parts of the Cosmo development. Although provided with dictionary definitions of both, I am inclined to think that sunlight and daylight are to be dealt with as a combination. Daylight, in a sense, will not be lost at all, although there may be some dimming effect. What is lost is direct sunlight on the walls and balconies of the units and the intrusion of sunlight into the interior at times (and also loss of the associated brightness). I accept that the sunlight and daylight presently available are highly valued by Mr Nash and Dr Hammill in particular and that the loss of this part of their present amenity to a considerable extent will be a huge disappointment, possibly devastating, to them. (Dr Hammill was eloquent in her statement (likewise during the court’s inspection) as to the disruption the proposal will cause to the present arrangements which are both highly suitable to her and valued by her.)
On the other hand, they must accept that some residential development on the area of proposed Lot 1 was inevitable: they had only to stroll round the locality to observe that most backyards were being filled in with (presumably) single unit dwellings. The comparison to be made is not between the proposal and no development on proposed Lot 1, but between the proposed development and what might have been anticipated. This is why a notional “compliant” structure, one allegedly complying with Acceptable Solutions for P1 has been presented. On the evidence, its amenity impacts as regards access to sunlight and daylight are the same as (maybe slightly worse than) the proposal’s.
I understood Mr Forsyth’s position (and Mr Nash’s) to be that the “compliant” building (for which shadow modelling has been done for comparison purposes) is not compliant because of the site area aspect (and perhaps, in a more technical way, the minimum frontage aspect as well). Nothing can be done about the site area. Again, I prefer the opposing analysis, particularly Ms Morrissey’s, in which the site area is regarded as irrelevant to the exercise, given that, whatever the area of the site, the building on it should be treated as exactly the same building located on exactly the same ground as is proposed. One can theorise that additional square metres might be acquired for the site in a location remote from the house, for example at the Arthur Street end, or by acquisition of part of the stub of Wandoo Street (subject to provision of easements to permit the clearance of the Cosmo development’s industrial waste bins which occurs at the front gate of the proposed new single unit dwelling). I reject the notion that the size of the site precludes a case based on a “compliant” building. The compliant building exercise acknowledges a deficiency in setback in the proposal from and above the point where the southern wall attains a height of 7.5m. There ought to be a further 0.5m to produce a setback of 2.5m. Although that may be provided, its effects are cancelled out in the “compliant” building by the provision of complying eaves and gutters above – which are permitted to intrude into the basic 2 metres setback.
Notwithstanding some expressions of disapproval of the in terrerom argument that a fully compliant development would be worse than the proposal being considered by the court (for example, in Upham v Brisbane City Council [1993] QPLR 318 at 321) I think there are cases (and this is one) in which the argument can appropriately be presented. Indeed, the terms of some planning schemes specifically encourage it.
Here, the proposal fails to meet not only the area and frontage Acceptable Solutions but also the more generous allowances in Acceptable Solutions for building height (by something in the order of 0.15m for the ridgeline of the roof – whose form was agreed to be what was expected of a residential building in the locality) and plot ratio. As to the latter, the 0.6 benchmark is well exceeded. A ratio of 0.78 had been adopted by the planners. Mr Nash contended that a basement area in the new single unit dwelling had been excluded, that the correct figure was 0.81. However, Ms Morrissey has performed recalculations, which I’m inclined to accept, that the 0.78 should be revised to 0.7 to take account of changes to the plans settled upon during mediation which the parties agreed were a minor change, not precluding the court’s dealing with the development application as changed in this appeal. Excluding the basement areas in both buildings, Ms Morrissey’s revised plot ratio is still narrowly in excess of 0.6. The ratio is calculated taking into account the GFAs of both single unit dwellings. Disregarding the basement area proposed for the pre-1946 dwelling was justified on the basis that it was not a necessary part of the proposal and could be treated as the subject of some future application. I think this is a legitimate approach in present circumstances. As far as the new single unit dwelling is concerned, confidence was expressed that the basement could be incorporated in the plans in such a way that it would not be counted towards GFA.
Such exercises merely serve to reduce the extent of exceedance beyond acceptable solutions. Mr Cochrane and Mr Job did not contend that the acceptable solutions (or any of them) would be met. In principle, perhaps, the nearer one gets to compliance with the specified solutions the less daunting may be the task of showing that the associated performance criteria are met. Here, the court is persuaded that they are met. The evidence of Mr Simpson, a distinguished architect is a considerable support for Mrs Wilson’s case. While the court may derive some comfort from the accolades he delivers the design for a handsome appearance and clever solutions to the problems posed by the site and the Wilson family for their enterprise and daring in planning to live in this project in Fortitude Valley, these aspects are not really part of the issues for the court. Mr Simpson is in a position to present expert opinion regarding the meeting (or otherwise) of relevant performance criteria. His opinion confirms that building size bulk and height are consistent with the low to medium density nature of the locality (as the locality presently is) and is not “overbearing development for neighbouring dwellings and their neighbouring space”. The “space” on the appellant’s side is a 3m strip for a pedestrian access to Wandoo Street which traverses the northern side of the wing (ground floor level of which is a metre or so above ground) and accommodates tall screening vegetation along the boundary with the site. It has also confirmed that the proposal is of a domestic scale, consistent in height with all neighbouring structures; it is not the height over 8.5m or two storeys which blocks views or outlook or reduces visual amenity: those outcomes are consequences of building within the benchmarks. Apropos the first-mentioned criterion of minimising amenity impacts on neighbouring dwellings in terms of access to sunlight and daylight, Mr Simpson relies on the shadow modelling done by others (which Mr Nash accepted as accurate) and the comparison with a “compliant” building; he praises the proposal for its placement of windows, which maintains privacy of neighbours, just as he commends the proposed “green wall” on the appellant’s side; this is a wall or curtain of vegetation supported by parallel, horizontal or vertical wires fixed close to the wall of the house.
In a context such as the present, to “minimise” adverse impacts is not to avoid them entirely, which would be impractical in a low to medium density residential area. The assumption is that a site capable of residential development will be turned to account for that purpose. In a recent discussion of the implications of minimising certain kinds of development in a different context see Gracemere Surveying and Planning Consultants v Peak Downs Shire Council [2009] QCA 237, where leave to appeal the decision at [2009] QPEC 476 was refused.
The appeal should be dismissed.
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