Newman & Ors v Brisbane City Council & Ors
[2011] QPEC 87
•30 June 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Newman & Ors v Brisbane City Council & Ors [2011] QPEC 87
PARTIES:
PETER NEWMAN, RENEE TENDYKE AND SCOTT CRAWFORD
Appellants
v
BRISBANE CITY COUNCIL
Respondent
and
ROYAL AUSTRALASIAN COLLEGE OF SURGEONS
Co-Respondent
v
BRIAN STEENDYK
Co-Respondent by Election
FILE NO/S:
2324 of 2010
DIVISION:
Planning and Environment
PROCEEDING:
Appeal Hearing
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Brisbane
DELIVERED ON:
30 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
7-11 March 2011, 27-29 April 2011, 3 May 2011 and 18 May 2011 followed by written submissions to 25 May 2011
JUDGE:
Robin QC DCJ
ORDER:
Appeal be dismissed subject to minor changes to proposal
CATCHWORDS:
Submitter appeal against development approval for a large new building in Water Street, Spring Hill for the Royal Australasian College of Surgeons – in the Local Plan the site fell in the Detached House precinct – no GFA restrictions (by contrast with other precincts) – intended character for Precinct was residential, featuring “traditional built form character” in “unified streetscapes” – site a designated Special Area where “reasonable expansion and intensification of the use is possible” – proposal held to qualify – whether “education” use sought to be expanded was an existing use at all or fell outside the approved use of “administration office” and was unlawful – issues included amenity impacts (noise, headlight glare, traffic, blocking of breezes and sunlight) – whether the proposed building exhibited the requisite character – whether demolition of existing building would end the use so that entitlement to expand was lost and use rights reverted to detached housing – proposal did not comply with acceptable solutions but satisfied relevant performance criteria regarding relationship/compatibility with other/nearby buildings and positive contribution to amenity and character of the local area.
COUNSEL:
Mr T. Trotter for the Respondent
Mr D. Gore QC and Mr J. Houston for the Co-Respondent
SOLICITORS:
Appellants are self-represented
Brisbane City Legal Practice for the Respondent
Shand Taylor Lawyers for the Co-Respondent
Co-Respondent by election is self-represented
The above-named appellants and Bart Pini lodged this appeal on 13 August 2010 against the respondent Council’s decision to approve a development application for a material change of use in respect of the co-respondent’s site in Water Street, Spring Hill which extends from Victoria Street in the north to Union Street in the south. Mr Pini is the immediate neighbour of the site in Victoria Street. He has withdrawn from participation in the appeal. Dr Crawford, who happens to be a member of the co-respondent “College” (the expression used in these reasons to describe the co-respondent “developer”) in whose interest the development application was made, has the residence in Victoria Street immediately west of Mr Pini’s. Mr Newman and Ms Tendyke are the site’s Union Street neighbours. The co-respondent by election, Mr Steendyk is an architect who has premises on the opposite side of Water Street in nearby Isaac Street; he will not be directly affected in that capacity by the proposed development; he is acting to protect his future enjoyment of the character and amenity intended for Spring Hill under the Council’s Petrie Terrance and Spring Hill Local Plan which is the principal planning instrument for the locality and forms part of Brisbane’s City Plan 2000. The central objection to the College’s proposal is that the new building intended is too big and dominating, also at odds with the area’s existing and intended character.
Mr Steendyk and the appellants made common cause. There were suggestions from the co-respondent that they ought to be treated and act as a single litigant speaking through a single voice. Nothing was presented to the court to gainsay the statutory right which a submitter such as Mr Steendyk who is notified of an appeal enjoys to elect to become a co-respondent, as confirmed in Bridge v Redland Shire Council [2007] QPEC 049. See also Allen v Toowoomba Regional Council [2011] QPEC 81 at page 9. In those circumstances, Mr Steendyk was allowed to represent himself independently, cross-examining witnesses separately, for example. Ms Tendyke (who gave evidence) did not seek to play any role at the bar table, except when Mr Newman had to leave late on Day 9. Mr Newman and Dr Crawford, with one minor exception, acted through one or other (but not both) of them in presenting the appellants’ case (cross-examining witnesses, etc.); they and the co-respondent by election contended that the appeal should be allowed and the development application refused; it is for the co-respondent to establish the contrary: Sustainable Planning Act 2009 (SPA) s 493(2). The court indulged Mr Steendyk’s commitment to speak at a conference interstate by allowing him to present his closing address (in writing) after all other parties had presented theirs on the last day of the hearing.
The IDAS Form 1 Development Application identifies the site as lot 1 on RP 126936 containing 1.292 m2, with street addresses of 99 Union Street and 50 Water Street. The site results from an amalgamation at some time in the past of two narrow house blocks with frontage to Victoria Street and a squarish house block with frontages to Union Street and Water Street. 1961 aerial photography shows three individual houses typical of those in the locality, like the appellants’ properties. The Form 1 IDAS Development Application Part D described the proposed use as “Administration, training and continuing professional development of surgeons”, the planning scheme definition as “Office (Administrative functions of professional organisations), and Education Purposes (Post Graduate training in medical theory and professional practices)” with hours of operation Monday to Saturday 7.00 am to 10.00 pm. The existing (current) use of the premises (carried out in an undistinguished 2 storey building constructed in the early 1960s, apparently for the Queensland Cancer Fund) was given as “Administration and training centre for surgeons”. The proposal was described as “2 and 3 storey building for Administration and Education Purposes”. Part D identified the applicable zone/precinct/area as Character Residential, Detached House precinct, Special Area 17 and applicable overlays as the Petrie Terrace and Spring Hill Local Plan.
Those last details serve to explain the dispute. The submitters (as it is convenient to call the appellants and the co-respondent by election) contend that the proposal, to have a GFA of 1030.6 m2 in stage 1 and an additional 623.3 m2 in stage 2 (an extension towards Union Street adjacent to Mr Newman’s residence reducing to 2 storeys only at the Union Street end to match the bulk of that residence) is simply too massive for the Detached House precinct and completely out of scale with the detached houses there. The Council’s decision notice of 25 June 2010 given under s 3.5.15 of the Integrated Planning Act 1997 contained a preliminary approval under s 3.1.5 for carrying out building work and a development permit for the stage 1 and stage 2 material change of use.
Some history of the site
The site is a large one for its locality. The Plan of Subdivision of the Portions 240 and 238 proposed to be brought under the Real Property Act was signed on 26 May 1862. It shows the lot at the corner of Victoria Street and Water Street on which the current building is constructed. The history of ownership and approvals for 99 Union Street, Spring Hill (lot 1 on RP 1269361) made available to the visual amenity experts (see Exhibit 2 of vol 2 tab 8) apparently collects under that address transactions to do with the three titles that were amalgamated in 1970: the lot on the corner of Union Street, originally subdivision 46 of portion 238, RP 10481 (11.28 perches in CT 4431 folio 71), the lot on the corner of Victoria Street, subdivision 16 of portion 240 (19.7 perches in CT 2656 folio 196) and the adjacent lot in Victoria Street, sub-division 215 of portion 240 (19¾ perches, in CT vol 768 folio 132) – ascribing them to the Union Street address. The list of Council approvals includes addition to dwelling in 1951 and 1953, offices alteration and addition in September 1956, office alteration 2 months later and approval for “Office (New)” in 1961, which authorised the now existing building. Aerial photography enables an understanding of what happened on the ground. It shows across Victoria Street a steady expansion of St Joseph’s College, Gregory Terrace (the school being generally referred to as “Terrace” in these reasons) down the hill to Water Street at the expense of more than a score of detached dwellings. 1961 photography shows houses on all three lots that together constitute the site – also the Institute for Child and Youth Mental Health’s large building on the other side of Water Street a little further north. In 1964 its trees on Water Street have been severely cut back, by which date the present office building on the site has gone up. Two houses remained on the adjoining blocks. They are still there in 1969, by which date the RACQ building is up, but have been demolished by the beginning of 1972. By 1970 the Prudential Assurance Company Limited had become the registered proprietor of all three lots and amalgamated them, subject to truncation of the Union Street-Water Street corner. The College in April 1988 became registered proprietor of lot 1 on RP 126936 (CT vol 4507 folio 165), succeeding the Prudential (rather than the Queensland Cancer Fund which purported to sell as registered proprietor: see exhibit 2 vol 2 tab 8 item “H”).
Planning Scheme Provisions
The Local Plan (which in large measure continues a Development Plan for the area that came into effect in 1987) commences:
“Petrie Terrace and Spring Hill Local Plan
1. Introduction
This Local Plan contains specific additional local planning requirements. Where it conflicts with the requirements of the City Plan, this Local Plan prevails. In using this Local Plan, reference should also be made to Section 1.1—Using a Local Plan at the front of this chapter.
2. Development principles
2.1The Local Plan protects the character of the built environment by restricting the demolition of buildings that have either character or heritage significance. Petrie Terrace and Spring Hill were two of the first parts of the City to be settled and as such, contain some of the oldest buildings and traditional character streetscapes in the City. Traditional modest residential dwellings erected on small allotments are the hallmark of Petrie Terrace and Spring Hill. These buildings and areas make a significant contribution to the City’s heritage and character and are to be retained.
2.2Any new development is to be sympathetic to the scale and character of the original urban development pattern and siting of existing buildings. Proposals in the identified heritage protection precincts are to retain and reinforce the original character of buildings predominating during the period 1850–1920. Proposals in other precincts subject to building design and character requirements are to retain and improve upon the existing character by incorporating the main identifiable features, materials and detailing of buildings that predominated during the period from 1850 to 1935.”
Further on, one comes across:-
“3 Precinct intents
This Local Plan uses precincts and sub–precincts to define areas of discrete land use character and building bulk, structuring development intensities to minimise conflicts at the boundaries. It comprises three residential precincts (the Detached House, Low Rise Residential and High Rise Residential Precincts) and three commercial precincts (the Low Rise Commercial, High Rise Commercial and Police Barracks Precincts).
Map A—Spring Hill Precincts and Map B—Petrie Terrace Precincts define either the precincts or sub–precinct areas where relevant.
3.1 Detached House Precinct (DH)
The Detached House Precinct is intended as a heritage and character protection precinct that preserves the area’s unified streetscapes featuring traditional built form character and buildings of similar age and generally high integrity. It comprises residential areas featuring cohesive and homogeneous character, suffering little from the intrusion of other forms of development and relatively isolated from the effects of traffic and non–residential development. These areas are unsuitable for higher intensity residential proposals and are buffered from the highest intensity residential and commercial areas by a ring of less intensive uses. As such, residential proposals in the precinct are intended to be in the form of detached houses no greater than two storeys in height strongly reflecting the typical Petrie Terrace and Spring Hill character of 1850 to 1935 housing. Existing traditional character buildings are to be retained wherever possible in preference to new buildings.
Any new proposals within the precinct, including the erection of new houses, restoration, rehabilitation, repairs, alteration or additions, are to be carried out in a style and using materials consistent with the traditional character of the precinct. To ensure the design and appearance of new construction is in accordance with these intentions, erection of new houses, or external additions or alterations to existing dwellings, are subject to the Performance Criteria and Acceptable Solutions of this Local Plan.
The development requirements recognise the practical difficulties of rebuilding on the existing small sites located in areas with narrow and closely spaced roads and sloping terrain. As such, there are no minimum site area requirements for detached houses. The erection of the same type of houses that were originally built, subject to compliance with the requirements of the Local Plan Code, is encouraged. However, the subdivision of existing allotments is not considered to be appropriate.”
Reading thus far, one would be wondering how the College’s proposal won approval. Intents for the other precincts (and sub-precincts) follow. After the Police Barracks precinct is covered in 3.6, one comes upon:
“3.7 Special Areas
Map C—Spring Hill Special Areas and Map D—Petrie Terrace Special Areas indicate the Special Areas of this Local Plan.
There are a number of existing uses throughout the Local Plan area that do not comply with the Intent of the precinct in which the sites are located. However, where these uses are generally well established and accepted by the community, they have been included as a Special Area to provide for the continuation of the use. Reasonable intensification and expansion of the use is possible provided it is located within the defined boundaries of the Special Area. Other Special Areas have been created to provide for the inclusion of alternative purposes or consideration of slightly higher residential intensities, where a particular planning problem has been identified and the potential exists to rectify it by applying more flexible planning provisions.
It is intended that all proposals in Special Areas comply with the provisions of the Local Plan Code pertaining to the precinct in which the site is located. However, where the functions and other intrinsic characteristics of the particular purpose or any special circumstances of the site make such compliance unreasonable, variation is possible provided the proposal exhibits the built form character intended for the precinct. If for some reason any existing use should cease, the site concerned should be developed under the normal provisions that apply in the precinct in which it is located. However, where lawfully erected existing buildings are destroyed, they are able to be rebuilt provided the new development does not contravene the Local Plan Code to any greater extent.
4 Level of assessment
This Local Plan is subject to the following level of assessment tables and is not subject to the levels of assessment in Chapter 3. A preliminary approval may change the level of assessment identified in this table. The trigger for assessment in the level of assessment tables is material change of use and/or building work (associated with a use or structure specified in the level of assessment table) unless otherwise specified. Any renovations or extensions to a building that are stated in the Residential Design—Character Code and/or the Residential Design—Small Lot Code as not requiring assessment will require assessment under this Local Plan.”
The College’s proposal is limited to its site which corresponds with Special Area 17 which justifies itself as “reasonable intensification and expansion”.
The Local Plan Code begins with 4.1 General – unless specified in a particular precinct for this Local Plan. Categorisation into development that is self-assessable, code assessable, impact assessable (generally appropriate) or impact assessable (generally inappropriate – the “in” appears to have been inadvertently omitted in A) with applicable or relevant codes specified in the adjacent column occurs by reference to localities, namely Parkland Area, Character Residential Area or Low-Medium Residential Area, Medium Density Residential Area or High Density Residential Area, Multi-Purpose Centre. 4.2 is Detached House precinct (where some specific provision is made for Special Areas 4, 14 and 21). 4.3 Low Rise Residential precinct makes special provision for Special Areas 3, 4, 5, 6, 7, 13, 16, 19, 20 and 21. 4.4 High-Rise Residential precinct and 4.5 Low-Rise Commercial precinct make specific provision for one or more Special Areas but for the High-Rise Commercial precinct and Police Barracks precinct there are no such references.
The Petrie Terrace and Spring Hill Local Plan Code (Chapter 4 p 172) commences:
“5. Petrie Terrace and Spring Hill Local Plan Code
This Code provides additional and/or alternative Acceptable Solutions to the Codes in Chapter 5 and take precedence over the Codes in Chapter 5.
The purpose of this Local Plan Code is to ensure that development in the Local Plan Area is consistent with the Development Principles and Precinct Intents of this Local Plan.
This Local Plan Code may also change the level of assessment by the setting out of Acceptable Solutions that will require consideration under an alternative level of assessment.
5.1 General
| Performance Criteria | Acceptable Solutions |
| Access, parking and servicing | |
| P1 Vehicle access and parking must be provided, designed and located to ensure convenient and safe parking and vehicular access that does not detract from the aesthetics or amenity of the area | A1.1 For the purpose of a House: · a minimum of one carparking space is provided OR · where the area of the site is less than 200m² and it would be impracticable to require a carparking space, no on–site carparking is required A1.2 Any activity in Sub–precinct HC1 provides · not more than 1 carparking space per 125m² of gross floor area for non–residential development or the non–residential part of a development in a mixed use development · not less than 1 carparking space per dwelling unit and not more than 1.5 spaces per dwelling unit for residential development or the residential part of a mixed use development A1.3 No more than 20 carparking spaces are provided for non–residential activities in the High Rise Commercial Precinct, where alternative access is not possible and the site has a frontage of less than 40m to the following roads: · Boundary Street · Leichhardt Street · Little Edward Street · Turbot Street · Upper Edward Street · Wharf Street · Wickham Street” |
Under Performance Criteria and Acceptable Solutions, 5.1 General, P1 requires convenient and safe parking and vehicular access that does not detract from the aesthetics or amenity of the area. The acceptable solutions in A1.5 indicate that unless access cannot be reasonably provided from some other road frontage, vehicle access is not provided directly from or within nine metres of an intersection with (among other thoroughfares) Water Street. Those provisions explain the taking of access for the proposal from Victoria Street at the maximum remove possible from Water Street.
There follows (at p176):
5.2 Residential Precincts - General
| Performance Criteria | Acceptable Solutions | ||||||||||||||||||||||||||
| Gross floor area | |||||||||||||||||||||||||||
| P1 Building size and bulk must be of a density consistent with the nature of the locality and must retain an appropriate residential scale and relationship with other buildings Note: Proposed buildings in the Detached House Precinct are not subject to gross floor area requirements of Codes in Chapter 5 | A1.1 The gross floor area in Sub–precinct LR1 does not exceed 0.6 times the site area A1.2 The gross floor areas in Sub–precincts LR2, LR3 and LR4 are:
A1.3 The gross floor areas in the High Rise Residential Precinct are:
A1.4 In Sub–precinct LR3, the gross floor area for that part of the building used for non–residential purposes does not exceed 50% of the maximum allowable gross floor area for the site | ||||||||||||||||||||||||||
| Site cover | |||||||||||||||||||||||||||
| P2 Buildings must be of a scale and design generally compatible with those of nearby buildings and must contribute positively to the amenity and character of the local area | A2.1 Site cover in the Low Rise Residential Precincts does not exceed: · 050% of the area of the site, | ||||||||||||||||||||||||||
| Building height and number of storeys | |||||||||||||||||||||||||||
| P3 Buildings must be of a scale and design generally compatible with those of nearby buildings and must contribute positively to the amenity and character of the local area | Code Assessment A3.1 Building height above ground level and numbers of storeys in the residential precincts does not exceed:
A3.2 Buildings in the Detached House and Low Rise Residential Precincts do not exceed the eaves height specified in A3.1 of this Section, except for a pitched roof that may extend to the specified ridge height, provided: · the roof pitch does not commence above the specified eaves height · no part of the roof exceeds a maximum pitch of 45º An additional attic storey built into the roof space is appropriate provided the building maintains the appearance of having the number of storeys referred to in A3.1 of this Section for detail in calculating compliance and other exceptions to A3.1 of this Section Refer to Figure b Impact Assessment A3.3 Building height above ground level in the Detached House and Low Rise Residential Precincts does not exceed:
| ||||||||||||||||||||||||||
| Street frontage setbacks | |||||||||||||||||||||||||||
| P4 The building setback must complement the setbacks prevailing in the street | A4.1 A 6m minimum building setback from the road alignment is provided on all alignments in the High Rise Residential Precinct and to the following road frontages in all other residential precincts: · Water Street A4.2 A 4m minimum building setback is provided on all other road frontages in the Detached House and Low Rise Residential Precincts A4.3 Open verandahs, balconies, carports and ancillary buildings may extend up to 2m into the building setback, and bay windows by not more than 0.75m in the Detached House and Low Rise Residential Precincts A4.4 Buildings fronting Water Street in sub–precinct LR3 may extend to the front alignment | ||||||||||||||||||||||||||
| Side and rear boundary clearances | |||||||||||||||||||||||||||
| P5 Buildings are well separated from each other to allow for natural light penetration, air circulation, outlook and privacy | Code Assessment A5.1 Boundary clearances in residential precincts are not less than the following:
| ||||||||||||||||||||||||||
It is noteworthy that development is more lightly regulated in the Detached House precinct than in other precincts – producing (arguably) anomalous consequences favourable for the College’s proposal. This appears to have much to do with recognition of the existing character of the area, the Precinct Intent in the final paragraph explaining why “there are no minimum site area requirements for detached houses”. The note in P1 emphasises that general GFA requirements do not apply. So it is not to the point that the GFA proposed here (said to be 1.28 times site area) would be problematic in other precincts, even commercial ones. For P4, it is only the Water Street frontage that calls up an acceptable solution of a 6 metre set back from the street. Side boundary clearances in the Precinct are only 1.5 metres. That can reduce to zero for impact assessment under A5.5.
The special provisions for the Detached House precinct begin as follows (at p181):
5.3 Detached House Precinct
| Performance Criteria | Acceptable Solutions |
| Building design and character | |
| P1 New buildings or additions to existing buildings must be compatible and in character with the building types that predominated during the period 1850 to 1920 New buildings and extensions to existing buildings must not be replicas, but rather incorporate such basic design features, materials and detailing that give them an external appearance of being in the same design idiom | A1.1 Plan Form—A building, or extensions to existing buildings, incorporates an orthogonal plan form with outside walls aligned to reflect those of adjoining buildings. Refer to Figure d A1.2 Roof Design—Building roofs are comprised of a dominant, symmetrical and steeply pitched portion but may also feature steeply pitched gables and hips, with or without secondary lean–to sections. Their design is to be consistent with roof types illustrated in Figures e and f but not those depicted in Figure g Roofs are constructed from corrugated A1.3 External Walls—External walls are sheeted in wide–profile weatherboards, chamferboards or other lightweight materials. Brick and masonry construction is only acceptable where: · it is rendered and painted · lightweight sheeting is also incorporated in the external wall detailing · the building does not include other features alien to the building types which predominated from 1850 to 1920 A1.4 Windows and Doors—The windows and doors contained in any external wall of a building that is visible from the street or other public place are compatible with the design and type detailed in Figure i. The design and placement of windows and doors in visible external walls: · emphasises openings that are of vertical proportions · includes a higher ratio of wall area to window or door · is of a style and construction and incorporate materials sympathetic with the building types that predominated between 1850 and 1920 Windows and doors of timber construction are preferred. However, powder coated aluminium windows may be acceptable where they are consistent with other window and door requirements A1.5 Verandahs—Buildings incorporate an open verandah that overlooks the road frontage of the site and extends across the front elevation, except where a projecting bay of the building prevents this, of a style compatible with the design depicted in Figure j Where the verandah is above the ground, it is timber framed and decked, with the area underneath open except for the provision of timber battens, screen curtains or valances between stumps or posts 4: Local Plans The verandah incorporates balustrades of timber or steel rail with infill of either timber framing, dowelling or decorative metal. Any timber latticework or louvres is located above the balustrade railing. Any steps or stairways to verandahs are to be timber framed, decked and balustraded in a like manner to the verandah Post supports are constructed from timber. Other lightweight supports such as metal posts are acceptable provided they are designed and detailed to reflect the scale and form of timber Where it is proposed to enclose an existing verandah or construct a new building without open verandahs, the enclosed area is detailed as if it could serve as a verandah in keeping with the manner suggested in Figure k. Balustrading, louvres and latticework is retained to form part of the enclosure and the external materials are lightweight and distinct from the remainder of the building A1.6 Fences—Any fencing along a road frontage is between 0.75m and 1.5m in height and constructed in open style similar to timber pickets and complimentary to the type detailed in Figure l A1.7 Colour Schemes—All buildings, ancillary buildings and fences are painted in a colour scheme compatible with the schemes that predominated from 1850 to 1920 Note: minor variations from the character requirements are possible where it is demonstrated that the variation is reasonable and would not substantially detract from the intent of the design requirements Major variations are possible where it is an extension or addition to a prior building and the style and character of the building is such that it would be unreasonable to require compliance with the design requirements |
The proposal does not comply with acceptable solutions. By way of example, its skillion roof is of an “inappropriate type” (figure g), rather than an “appropriate” or “compatible” one (figures e, f). The ridge height exceeds 12 metres (by up to half a metre) and the eaves height exceeds 7.5 metres. The external walls and “verandahs” do not comply with acceptable solutions. The College sets out to defend its proposal as compliant with performance criteria, which it is entitled to do. It is regrettable that the planning scheme (like others in this respect) does not more prominently impress upon local residents that they are not entitled to expect development to comply with acceptable solutions, that the point of them is to ease the way for developers who choose to comply with them. Such developers are taken to comply with performance criteria, however obvious it may seem in particular cases that they do not.
The level of assessment table for the Detached House precinct is:-
4.2 Detached House Precinct
| Code Assessment | Applicable Codes |
| Any of the following purposes where not exceeding the gross floor area and complying with the code assessment Acceptable Solutions of the Petrie Terrace and Spring Hill Local Plan Code: 1. Education Purposes in SA4 where character buildings and significant trees are retained 2. House | For all development: Centre Amenity and Performance Code House Code |
| Impact Assessment | Relevant Codes |
| Generally Appropriate | |
| Any of the following purposes where not exceeding the gross floor area and complying with the impact assessment Acceptable Solutions of the Petrie Terrace and Spring Hill Local Plan Code: 1. Carpark in SA14 2. Education Purposes in SA4 where character buildings and significant trees are retained 3. House House Code 4. Indoor Sport and Recreation (theatre) in SA21 where existing detached character houses are retained | Impact Assessment Relevant Codes House Code |
Limited codes are called up there. The site is not in SA 4, nor is the proposal for a house or multi-unit dwelling. Given that, the Residential Design – Character Code which provides in 1A application:
“This Code will apply in assessing material change of use and/or building work for a house or multi-unit dwelling” (Chapter 5, p147)
is inapplicable.
Much was said about “heritage” during the hearing, but there is no occasion to refer to the Heritage Place Code. The Local Plan has numerous references to that code where development is proposed of a Heritage Place or within a Heritage Precinct, or of land adjoining one or other. Reference to the Council’s relevant listings shows a number of Heritage Places in the general locality, none of which adjoins the site. Nor does it adjoin a Heritage Precinct as listed, notwithstanding that the Intent for the Detached House precinct identifies it as a “heritage and character protection precinct”. The key is the lack of capitalisation, something bemoaned by Mr Mainwaring, the submitters’ visual character expert; nonetheless, he placed considerable emphasis on heritage and character aspects in his criticisms of the proposal.
The tables in the Local Plan, which provide the effective regulation of development, are carefully drafted to employ the expressions “Heritage Place” and “Heritage Precinct”, referring to listings in the Heritage Register. It is not permissible to cobble together a reference to “Heritage Precinct” obtained by ignoring the separation of those words by other words in the Detached House precinct Intent. Dr Crawford argued that the Heritage Place Code applies by force of its own terms:
“This Code will apply in assessing building work (including demolition). Reconfiguring a lot or operational work where:
·on a premises that includes a heritage place
·within a heritage precinct
·on a premises adjoining a heritage place
·on a premises adjoining a heritage precinct
Citations need not be prepared prior to inclusion of sites in the Heritage Register.”
Capital letters are not used (at least in the version of the Heritage Place Code tendered as Exhibit 4D). Nonetheless, the comments regarding “Heritage Precinct” above apply. A separate aspect of Dr Crawford’s argument was that the College’s site adjoins a heritage place, namely the school well known as and described in these reasons as “Terrace”. The school is a Heritage Place (albeit by virtue of buildings remotely located near Gregory Terrace), but it is across Victoria Street from the site. I agree with Mr Gore QC, for the College, that, relevantly, premises are “adjoining” only where they share a boundary. It is the case that the co-respondent and its consultants did not at all set out to comply with the Heritage Place Code.
A central aspect of Mr Mainwaring’s approach was to emphasise the “fine-grained” and modest scale of the Detached House precincts in the heart of this part of Spring Hill which he understands to be protected by buffering against the high rise commercial development of the “bookends” at Boundary Street (typified by the Main Roads building) and towards Brunswick Street (typified by the Energex Building) and the similar (but less dominating) development along St Paul’s Terrace and Gregory Terrace (beyond which is Victoria Park). The CBD skyline adds to the impact of intensive commercial development for anyone looking in that direction across Boundary Street or St Paul’s Terrace. The idea is that that buffering is provided by LR1, LR2 and LR3 areas, with the implication that anything in DH is intended to be of more modest scale. The proposal conflicts with that notion, which was express in 2.3.2 of the Development Plan of 1987. Understanding the history has its uses, but is of very limited weight in applying the regulatory provisions of the Local Plan which has replaced the Development Plan without replicating entirely notions of buffering, “gradation of intensities” (see 2.2.11) and the like in relevant statements of intent, except that the Detached Housing precinct itself is to “be buffered from the highest intensity residential and commercial areas” and the LR1 precinct is intended to provide a “transition from” Detached Housing: 3.2.1.
The difficulty is that existing development supported by the Special Area provisions belies the seductive description. It may be a guide to intended character but it gives no idea of actual character or of a character which has much chance of being achieved in the future. Mr Gore may have slightly overstated things when he seized on the case of Terrace to submit that the uses in the Special Areas are conceived of as ones that will be there for ever. One could hardly associate notions of permanence to that extent with the protection of parking areas, for example. However, the College’s long history and functions make it appropriate to attach little weight to any thought that the use may be short-lived and give way to the detached housing style of development desired for the Precinct.
Petrie Terrace and Spring Hill Development Plan (1987)
The precursor of the Council’s Local Plan was the Petrie Terrace and Spring Hill Development Plan which was gazetted on 13 June 1987 (No. 57). The objectives were to reverse the decline in population in the relevant area and attract people to within walking distance of the CBD by improving amenity and encouraging the upgrading of housing, to limit the expansion of commercial development outside the CBD and to generally adopt the objectives applying to the rest of Brisbane on the understanding that to some extent they were liable to be satisfied in a different manner because of the particular characteristics of these inner city suburbs. Provision was made for Special Areas as follows in 1987:
“2.2.2 Special Areas
There are a number of existing uses which do not comply with the primary intent of the precinct in which they are located. The provisions of the Plan which apply to existing non-conforming uses are also relevant to the application of the Development Plan. However, non-conforming uses which are well established and in respect of which there is no intention that they should cease, have been included in a Special Area.
A Special Area provides for the intensification and expansion of particular uses within defined boundaries. If for some reason the existing use should cease, the site concerned may be developed under the normal provisions that apply in the precinct in which it is located, without the need to amend the Plan.” (Page 1275)
There followed at page 1279:
“3.1.7 Intent for Special Area SA12
The existence of the Queensland Cancer Fund premises is recognized, and its continuance and reasonable future development facilitated within the boundaries of the Special Area. In the event of such use ceasing, and not being replaced with an essentially similar use, it is intended that the site thereafter be developed in conformity with the normal provision of Precinct DH1.”
Upon the College acquiring the property, it made an application to the Council for consent for its disclosed purpose namely “Administration Office Australasian College of Surgeons, the Private Hospitals and Nursing Homes Association of Australia, and other Medical Colleges of an essentially similar nature”. It was stated that “approximately” ten persons would be engaged in the proposed use. The application came before the Council’s Registration Board in September and November 1988 when it was approved on the basis that the proposal would accord with the general planning intentions of the Town Plan, would not create or increase a traffic problem, would satisfy the provisions of the Town Plan and current Council policies, that the site was suitable for the proposed “use”, and that the “proposed uses are essentially similar to the existing non-conforming use; …less objectionable and will have a less detrimental effect on the locality”. The development was to be generally in accordance with plans of layout that had been forwarded to the Council on 6 April 1988.
In 1992 when Planning Scheme amendments were in the air, the College wrote to the Council asking that the Intent for Special Area 24 be changed to the following:
“3.1.7 Intent for Special Area SA24
The existence of the Royal Australasian College of Surgeons premises is recognized, and its continuance and reasonable future development facilitated within the boundaries of the Special Area. In the event of such use ceasing, and not being replaced with an essentially similar use, it is intended that the site thereafter be developed in conformity with the normal provision of Precinct DH1.”
That language found its way into the Council’s Development Plan. See Queensland Government Gazette 16 October 1992.
“Reasonable” Expansion, etc.
The “reasonable future development” or “intensification and expansion” provided for in 1987 is now “reasonable intensification and expansion”, which may be picking up doctrines about reasonable expansion of non-conforming uses developed in South Australia (District Council of Mt Barker v Palma BC 200201865; [2002] SASC 104 at [19] [48] and [69]) and North America: see McGeehan v Zoning Hearing Board of Springfield 407 A. 2d 56; Mueller v City of Phoenix 435 P. 2d 472 and a number of decisions of the Ontario Municipal Board including Toronto Airways Limited v Town of Markham (1975) 4 OMBR 372 in which the town was compelled to change the permitted use of some 70 acres to Transportation for the purposes of extending an airport runway by some 1200 feet. The site was designated Rural but a general aviation facility had been established around 1945 and then recognized within the Agricultural designation. It became one of the busiest facilities of its kind in Canada; movements per year were expected to increase from 1973 by 80,000 movements to 260,000 by 1980; on the basis of the expansion happening, 20,000 multi engine aircraft would be handled rather than 14,000. It was expected that future development would include seven new buildings for offices and other aircraft-related uses to service the industry. The principal issue was noise. The Board said at [22]-[23]:
“22. Two main points were advanced by the ratepayers. They are concerned with the present airport use and its operation which is detrimental to the enjoyment of their property, and secondly, there is a growing fear about the ultimate use and character of the airport if the runway extension is granted.
23. It should be noted that the Buttonville airport is an established use, developed originally about 1945 and recognized by the agricultural designation of the Official Plan and relevant land use control by-law. As much as the residents would like to see this facility moved to another location, the owner of the property has vested rights which are recognized by the municipality as well. Also, one should expect that reasonable expansions of any business should be permitted to meet a changing economic climate as long as they do not unduly interfere with the rights and amenities of neighbouring land owners.”
In my opinion, the test expressed in the last sentence of the quotation indicates one aspect of the test which the assessment manager is called on to apply in working out the effect of the Intent for the Special Area that “reasonable intensification and expansion of the use is possible provided it is located within the defined boundaries of the Special Area”. I would not accede to the proposition that no impacts are to be suffered, or the proposition that the only consideration is effects or impacts outside the site, so that the interests of the College may be disregarded. The College’s situation may be taken into account. It is conceivable that if it wished to conduct on the site the entirety of the training of future surgeons in Queensland, necessitating a much larger building, that would not qualify as “reasonable” expansion or intensification of the use, having regard to the peripheral or supplementary role of the premises in that regard to date and also the primacy of the “administration” use.
The building is approaching its half-century; the College (launched in Dunedin in 1927, four years before becoming “Royal”) has been active there for about half that time. The evidence is that the proposal is appropriate to accommodate the College’s accustomed activities for the next few decades. A new building is a major venture for a non-profit organisation such as the College. It is a reasonable approach to provide for more than immediate needs only. In that aspect, what is envisaged is “reasonable intensification and expansion”. It was suggested that stage 2 may not be required for another 10 years or so.
The reasonable expectations of neighbours of a ‘fine-grained’ detached housing character would necessarily have changed:
· when the Council approved the present building on subdivision 16 on 28 June 1961
· when the present building was constructed there – aerial photography shows it was up by 1 August 1964 (at that time and still on 1 September 1969 the detached dwellings next door in Victoria Street (subdivision 15) and Water Street (subdivision 6) still remained in place)
· when the Prudential Assurance Company Ltd became registered proprietor of all three parcels in March 1970 and the parcels were amalgamated into a single one subject to a dedication for road purposes at the corner of subdivision 16
· when the two detached dwellings were removed – before 1972
· when the whole of the amalgamated parcel was designated a Special Area in the 1987 Development Plan, the implementation of the objectives being expressed as follows in the Intent:
“2.2.2 Special Areas
There are a number of existing uses which do not comply with the primary intent of the precinct in which they are located. The provisions of the Plan which apply to existing non-conforming uses are also relevant to the application to the Development Plan. However, non-conforming uses which are well established and in respect of which there is no intention that they should cease, have been included in a Special Area.
A Special Area provides for the intensification and expansion of particular uses within defined boundaries. If for some reason the existing use should cease, the site concerned may be developed under the normal provisions that apply in the precinct in which it is located, without the need to amend the Plan.”
(notwithstanding the comforting words at the end).
· when those arrangements were essentially confirmed in City Plan 2000, nothing being included that would somehow control development on the site (now Lot 1, coextensive with the Special Area) to restore the “fine-grained” pattern of development desired for the Plan area more widely or (relevantly) to limit the dimensions of new buildings in the Detached Housing precinct. (The “comforting words” remain.)
Those factors make it difficult to characterise the intensification or expansion applied for now as not reasonable on the basis of expectations of the site that might reasonably be held in any quarter, notwithstanding the tension with the Local Plan’s “Development principles” and Intent for the Detached Housing precinct.
I do not see how, in the present circumstances, there can be found unreasonableness on the basis of the general intent for the Local Plan area. There appears to have been no distinction drawn between the College’s use of its site and its building, as there well might have been: it would have been sensible enough to permit intensification of use within an existing building, while precluding further building. The last sentence of the Special Area Intent may embody the notion that a replacement building should not be bigger than the present one. However, in the 1980s and 1990s, for SA12 and SA24,[1] recognition was given to the premises (i.e. building) and reasonable future development was “facilitated within the boundaries of the Special Area”, which can only refer to expansion of the existing building,[2] construction of additional building(s) or replacement by a bigger building. I think that the present 3.7 covers at least those cases.
[1]In the Gazette for 13.6.87, SA12 “recognized” the Queensland Cancer Fund “premises”. The College’s “premises” were recognized by amendment of 16.10.92 as SA24.
[2]This use of “premises” is consistent with that in SA20 which in 1987 and when 1992 and 1993 amendments were shown referred to an office “conducted within an existing dwelling house” and allowance made for “modification of the premises for that use provided that modification does not adversely affect the amenity of nearby properties.”.
Replacement of school buildings and construction of new buildings, typically bigger, has happened at Terrace and was contemplated by the Special Area provisions. The current Intent appears to be an amalgam of the former Intents for the College’s site, where the notion of “reasonable future development” appears, and for Terrace’s, which provides for “expansion” and “intensification”, conformably with paragraph 2.2.2:
“3.1.6 Intent for Special Area SA3
The continuance of prior uses for the St Josephs Christian Brothers College is suitably protected in Special Area SA3. However, any proposed expansion or intensification will be assessed in the light of the desired residential character of the precincts in which it is located. Future development is subject to Design Code B, or Design Code B as varied in that action may be appropriate in the light of the nature and functions of the building concerned. Due regard should be given to the primary Intent, which is to maintain the visual residential character of the precincts, bearing in mind their proximity to the historic protection precincts.”
If the Queensland Cancer Fund and later the College were intended to be confined to the existing 1960s building, that could have been stipulated easily; instead the availability of the whole amalgamated site within the Special Area was acknowledged as open for expansion. The particular case of an entirely new, bigger building after demolition of the present one creates tension with what the Intent says about it being “destroyed” to the extent of the greater size of the new building being likely to contravene the Local Plan more. If there is indeed a prohibition in this regard, in my view it has to yield to the broader underlying intent that expansion is to be accepted. I think it is a correct approach to regard demolition (destruction) and replacement as a single exercise or phenomenon in this context. As in the Buttonville Airport case, the College as owner of the site has vested rights, or at least reasonable expectations of its own; there is authority for construing planning instruments which may be ambiguous favourably to it. See Matijesevic v Logan City Council [1984] 1 Qd R 599, 605 and Re LDCM Investments Ltd v Town of Newcastle (1975) 8 OR (2nd) 504, 510-11, cited in Friends of Currumbin Association Inc v Gold Coast City Council [2006] QPELR 657 at [33].
In the present context, reasonableness is not judged by consideration of effects on neighbours alone; the impact on the character and amenity of the Spring Hill locality in general must be considered, given that the essential raison d’etre of the Local Plan is to protect and enhance them. The “dot points” above are of relevance in this regard for assessing what the reasonable expectation of Mr Steendyk, for example, as well as close neighbours, might be. As a general proposition, they would apply to him.
I reject the submitters’ contention that the opposition of themselves and many other submitters amounts to a reason for rejecting the proposal, by showing that it is not for “uses … accepted by the community”. The contention picks up the justification for Special Areas set out in the Intent in the Local Plan (in contrast with the Development Plan) which in my view is no more than a pronouncement that, as a matter of history, particular non-complying uses had been accepted. There is no requirement that the acceptance be ongoing. Nor does it matter whether the “community” referred to is that of Spring Hill or a wider Brisbane or Queensland community. Terrace is not the only school in the vicinity with a student body coming from homes scattered far and wide. Local people may well prefer that the educational institutions be relocated, especially at pick-up times, although it was suggested that the ensuing lack of noisy activity until the next morning would be welcomed. The primary school excepted, the educational institutions do not serve the local community.
In a similar way, the College is there to serve interests different from and much more general than those of the local community. They would gain the same benefit from the College’s activities wherever they occurred. The College has every justification for wishing to retain its site, which is conveniently located for its and its members’ purposes. As a general principle, one is entitled to do as one wishes with one’s own land, unless the law interferes. For purposes of the appeal, I am willing to proceed on the basis that the College is not an ideal neighbour, that activities on the site may impair the tranquillity of evenings and, more important, that it is proposing for its site a building which many would regard (issues about the design being sympathetic aside) as dominating and out of scale in its undoubted impacts on the amenity of its direct neighbours, in particular; they would clearly have a more open and pleasant amenity without the proposed new building, especially given that it will do away with the gap which has historically been there between Lot 16 and Lot 6 (more correctly, between buildings on them). As a general rule, I would think that all construction is unwelcome to neighbours. The court can sympathise with the neighbours in this case, and indeed with Dr Crawford, one house away. However, the question for the court is whether there are in the Local Plan any controls which protect their amenity in the way they would wish. On a proper analysis, there are none. They have to confront the serious limitations in prescriptions in the Planning Scheme for their Precinct and, more importantly, the Special Area designation of the site.
I reject the notion that a demolition with a view to redevelopment for an expanded use amounts to the original building being “destroyed” for purposes of the Special Areas Intent, notwithstanding that “destroyed” includes “demolished”. To hold otherwise would make a mockery of the preceding stipulation that “reasonable intensification and expansion of the use is possible”. Terrace has been allowed to replace existing buildings with much larger ones, something which in my opinion is both expected and accepted. Even if that approach is wrong, and we have reached the issue of what may replace an existing building, the submitters confront the huge difficulty (one that may be a consequence of defects in the drafting of the Local Plan) that in the Precinct proposed buildings (generally) are not subject to GFA requirements of ch 5 codes. How then can GFA as such, whatever the increase, “contravene the Local Plan Code to any greater extent” – or at all? The submitters’ exercise of illustrating alleged excessive GFA and site cover based on “Precinct Intent and permitted densities” which propounds permitted densities by comparison with site area (0.6 for LR1, 1.04 for LR2, LR3 and LR4 and ranging from 1.04 to 1.5 for the Commercial precincts) cannot be accepted. The 0.5 ascribed to the Detached House precinct appears to be derived from the “50% of the area of the site” for site cover in LR1, applicable where there are no ancillary buildings, and a notion that the Detached House precinct ought to be at least as “open” as LR1. The site cover for the proposal is 48% or thereabouts.
Water Street and the Detached Housing precinct Intent
In and around the site, there is a gulf between the Intent of the Detached Housing precinct and existing development, in Water Street especially. The Intent in 3.1 indicates what is meant by “unified streetscapes”.
There is a general definition of “streetscape” that identifies the relevant components:
“Streetscape: the collective combination of urban form elements that constitute the view of a street and its public and private domains. These elements include buildings, roads, footpaths, vegetation, amenities, open spaces and street furniture. The impact of these elements which may affect a streetscape include scale and configuration of the built form, the location and width of paths, the amount and type of vegetation and the presence and location of activity nodes.”
A unified streetscape might be the result of all manner of unifying features, such as fencing, treatment of footpaths, similar trees planted at regular spacings and the like, rather than streets of houses with uniform fronts as in cities like Bath, with which Spring Hill is not comparable in this regard; the variety of “traditional” housing adds to its particular charm. Its streetscapes are “unified” by reason of the buildings’ “traditional built form character” and being “of similar age and generally high integrity”. In this context it does not matter that the streetscapes may be rather a muddle, likewise the distribution of roof forms as one observes them looking up or down from or to Water Street or across the “valley”. The “cohesive and homogeneous” character of the residential areas is likewise one exhibiting a lot of diversity.[3] Nevertheless, it is easy enough to spot “intrusions” which are out of character. I would think that what Mr Mainwaring called the fine grain of development (i.e. detached dwellings on small lots) is key to the concept of that part of Spring Hill described in the Intent for the Detached Housing precinct.
[3]According to Cambridge Dictionaries On-line, “cohesive” means “united and working together effectively”; homogenous means “consisting of parts or people which are similar to each other or of the same type.”
I would not agree with those who say Water Street, while geographically the heart and spine of the Precinct, does not have a residential character; it has a mixed character with a large residential component; it has a rather different residential character from that of the side streets, which are much narrower; as well as much quieter. According to Mr O’Brien’s Exhibit 7, on the opposite side of Water Street from the site there are 10 pre-1946 timber and tin houses (including the one diagonally opposite the present building on the site) with a similar number on the other side (some buildings appear to be uncategorised) and two “character” timber and tin corner shops, one opposite the site in Union Street, the other across Rogers Street from Terrace. There are at least eight post-1946 detached houses and as many post-1946 multi-residential buildings, some (including those directly opposite the site) of three storeys. I agree with Mr O’Brien and Mr Chenoweth that Water Street is different because it exhibits a “cluster” of large lots at the base of the valley. There is some force in Mr Mainwaring’s view that it is the small scale residential development on the hillsides that remains dominant. In the end, however, I think that the different character of Water Street, with its unfriendly narrow median strip, has to be recognised - and that the proposed development should be recognised as one presenting primarily to Water Street amid a “cluster” of buildings of similar proportions.
The Detached Housing precinct in Spring Hill (covering all parts of 25 “city blocks”) is centred on Water Street. To the east it extends to St Paul’s Terrace, excluding parcels of land with a boundary street frontage and a couple of smaller lots in Rosa Street. Further north, the block bounded by Water Street, St Paul’s Terrace, Quarry Street and Love Street is LR1 (Lower Residential 1), likewise the southern side of Quarry Street. From Love Street, all of St Paul’s Terrace is LC1 (Low Rise Commercial) with LR1 behind as a buffer for the DH precinct which extends to both sides of Kennigo Street. West of Water Street there is a low rise motel on an L-shaped site designated LR1 with frontages to Kennigo Street and Warry Street. The DH precinct which never extends as far as Gregory Terrace (essentially all LR2) is bounded by Warry Street and Bathgate Street at its furthest extent. Kennigo Street (one of the few to cross Water Street and keep its name – the others are Warry, Rogers and Isaac) and Hill Street next to the south are DH Streets, but Park Street and Kinross Street are LR1. Royal Avenue and Hipwood Street form a crescent which is DH at the Water Street ends on both sides, as is Rogers Street for all corners of its intersection with Water Street. The balance of the DH precinct, which continues unbroken to the south along Water Street is bounded by York Parade, Mulgrave Drive, Victoria Street and Water Street. St Joseph’s College, Gregory Terrace (“Terrace”) bounded by the eponymous Terrace, Rogers Street, Water Street and Victoria Street covers three precincts, LR2 on Gregory Terrace, DH on Water Street and LR1 in the middle.
The DH Precinct is Divided
The Spring Hill Detached Housing precinct is cut into halves by a wide swathe of non-residential development in the form of Brisbane Central Primary School in St Paul’s Terrace, the Institute east of Water Street and Terrace (whose main grounds extend to the Gregory Terrace boundary of the Local Plan Area across LR1 and LR2 precincts) west of Water Street. The non-residential uses on that side include the site and the shop across Union Street and another shop across Rogers Street, so that there are effectively three blocks of non-residential development. It should be accepted that the location of timber and tin shops in traditional housing areas is now seen as felicitous and (visually, at least) sympathetic. The much broader part of the swathe across Water Street lies to the north and extends to Love Street (now across LR1 land). Centred on Quarry Street (LR1 on both sides) it faces Rogers, Hipwood, Royal, Kinross and Spark Streets on the other side. Like Terrace (SA4) and the site (SA17) it is all within Special Areas (SA4, SA5 or SA20 – disregarding the SA6 north of Love Street). If the RACQ building is set aside, it is a well treed park-like area, and not only in the heritage listed Bedford Playground (LR1) at the south west corner of Water Street and Love Street which covers most of the city block. The point is that this swathe of terrain of which the site is a part exhibits none of the traditional “fine grained” residential character which is Spring Hill’s (particularly, the Detached Housing precinct’s) main feature. Non-residential uses presumably occur in the several buildings that appear to be those of the Lady Gowrie organisation.
Opposite the site on DH land is the Terrace Manual Arts Building, with a footprint similar to that of the building presently on the site, but with a larger GFA, because it has three storeys, the highest placed rather discreetly amid roof forms, being, below, the awning over the distinctive wide verandah surrounding the middle level, and above a hip roof with gables; its windows are shaded by generous curved hoods mimicking older tin ones that add to the impression of a complex roof form in a large building which strives to incorporate features of the traditional built forms of the area.
The College relies on this building as a significant part of the built environment for purposes of applying performance criteria its proposal seeks to satisfy such as in the Local Plan Code 5.2 Residential precincts – general in respect of gross floor area, site cover and building height and number of storeys. The performance criteria and acceptable solutions are set out in paragraph [9] above. For GFA, the requirement (P1) is that building size and bulk “must be of a density consistent with the nature of the locality and must retain an appropriate residential scale and relationship with other buildings”. The proposal does not have a residential scale (subject to the observation that in nearby streets there are buildings of similar size which have been converted to residential uses); nor does the present building, so that on the site, there is nothing of the desired character to be “retained”. In my view, this tends to remove the “residential scale” aspect. It would have been easy to stipulate “exhibit” or “display” rather than use “retain”, which is strongly suggestive of a notion of keeping close to what is there already. There seems to be an assumption of existing residential scale, which is belied by the circumstances here. For a stationary observer wishing to compare the scale of the project with its residential neighbours in the side streets (presumably by standing at equal distance from them on the other side of the road), the relationship is not, in my judgment, an unacceptable one, so that there is some success achieved by way of appropriate residential scale. What remains of P1 is a requirement that size and bulk of the proposal be such that it has an appropriate relationship with other buildings. That requirement is not limited to relationships with residential buildings.
For site cover (P2) and building height and the number of storeys (P3), it will be recalled that the performance criterion is the same:
“Buildings must be of a scale and design generally compatible with those of nearby buildings and must contribute positively to the amenity and character of the local area.”
The nearby buildings include the remaining detached houses (the subject of discussion immediately above); they also include existing larger structures. The Terrace Manual Arts building is of considerable significance in being located, like the site, in the DH precinct. In a similar category is the Institute for Child and Youth Mental Health which has a large site occupying the northwest part of the area immediately east of Water Street and Rogers Street to a notional projection eastwards of Hipwood Street, the balance of that area belonging to the Heritage listed Brisbane Central Primary School in St Paul’s Terrace. The Institute’s L-shaped building has a large footprint (exceeding that of any existing or proposed construction on the site); its bulk is not easily appreciated from the street as it is set at a 45 degree angle to Water Street on a generously landscaped site. The primary school buildings, benefiting from similar landscape surrounds, may be large too, but have no present relevance, given the remoteness from Water Street and the site.
Immediately north of the Institute at the corner of Water Street and Quarry Street is another large Terrace building of three storeys, to which a fourth has been added, set well back from Water Street and not easily observable from there. This rather striking structure with its arc of distinctive white pillars at the corner supporting an upper level above a very wide setback at street level became familiar to many Brisbanites as the RACQ building. It is in the LR1 precinct, like its relatively lofty neighbour in Quarry Street, the Salvation Army’s Pindari Hostel. While not in the DH precinct, the RACQ building immediately abuts that Precinct and is relevant, in my opinion, as a nearby highly dominant feature of the Water Street landscape. The Terrace Manual Arts building in the DH precinct is as dominant, or nearly so.
In Victoria Street, whose streetscape is intended to be protected, Terrace occupies the whole block, exhibiting larger building forms of distinctive style. At least one witness thought the gesture of a pitched roof atop a three storey masonry building looked odd. The typically packed appearance of the school buildings will be exacerbated by a new four (or five) storey building nearing completion on LR1 land opposite Dr Crawford’s residence. Surmounting three “general learning” levels atop the “Terrace Shop” at ground level is a roofed “rooftop terrace”, whose floor is at RL 41.00.
The submitters’ case regarding the other large structures discussed is that, like the present building on the site (also large), they all pre-date not only the Local Plan but also its predecessor, the Petrie Terrace and Spring Hill Development Plan of 1987. The argument runs that it is illegitimate to refer to them, that where consistency or compatibility is called for under the Local Plan, that should refer to the character intended or desired by the Local Plan, not to what may exist for historical reasons. The big buildings in the area that were in existence when the Development Plan commenced in 1987 cannot satisfy the desired character under the Precinct Intent nowadays, but that they would not be approved now does not support the argument that they ought to be ignored. It is unlikely that any of them will cease to exist, probably even more unlikely that if they should cease to exist, they would be replaced by detached or low density housing.
I do not accept that the existing developments discussed above can be disregarded. The reality is that they will endure for a long term – it was suggested that Terrace will be there “forever”. Maybe it will be. Its 1987 Special Area designation made no reference to the possibility of the activities of the school ceasing. The court cannot proceed on any assumption that the use will cease. Mr Bell considers the overriding effect of the Special Area provisions to be quite limited and that expansion of the favoured use is possible only “so long as [the premises] continue to exhibit the built form character intended for the precinct”. I disagree with that approach, which I think unjustifiably imposes a notion relevant to new proposals in the second paragraph of 3.7 on “expansion”, etc., which is dealt with in the first paragraph without any “character” requirement attached.
Terrace’s new “Year 7 learning centre”, 16.79 metres in height and with a GFA of 2,455 m2 replaces a post-1946 three-storey education building (see Exhibit 20). The significance of it is in its being the result of a recent approval. The submitters argue there should not have been an approval. Their expert planner, Mr Bell came under criticism for lack of candour in a letter of protest which he sent to the Council in what he said was an (unsuccessful) attempt to elicit a response that could be used in evidence in this appeal – in that the letter did not disclose his having been engaged by the submitters.
Despite its (“Detached House”) designation, the geographic heart of the Detached House precinct, where the site lies, has been taken out, so to speak (or was never there in the era of the Development Plan and the Local Plan) by reason of bulky non-residential buildings already there and also east of Water Street by reason of open space, in both respects at variance with the intended character, and likely to endure. The situation is made worse from the point of view of intended character by some of the development on the eastern side of Water Street, the taller residential structures in particular. The site lies within this problematic area, with the consequence that for present purposes there is nothing of the intended character on the site or in that area to be protected.
Local Plan Development Principles
2.1 is about protecting what is there. The existing College building has no character or heritage significance; demolition of it raises no issue.[4] 2.2,[5] which Mr Bell, for one, says is not being achieved, is about new development. The site is within an “identified heritage precinct”, being so identified in 3.1, although not affected by the Heritage Place Code. The view that the proposal is not sympathetic to the scale and character of the existing development pattern or sympathetic to the siting of existing buildings – likewise the view that 1850-1920 character is not retained or reinforced - is easily reached, although opposing views might be ventured. Some gestures of sympathy have been made, particularly as to “character” and in setbacks from the side streets and from the Newman and Pini residences, and in the restriction to two storeys in height alongside the former (which has a deck that appears to have no setback on that side). The relatively slim Union Street and Victoria Street elevations (the former, particularly) are not glaringly out of scale with existing structures there. The modest proportions of the Pini residence have to contend with the Terrace school buildings across Victoria Street. Of course, buildings are not assessed in terms of any single elevation, but rather in terms of the whole as revealed on moving past – which will reveal a relatively massive structure 47.65 metres long in Water Street, mostly 12 or more metres high. (In the end I do not think anything turned on the use made of the somewhat artificial concept of “natural ground level” as defined in the City Plan to establish that the height may be more like 12.5 metres: I am persuaded that in practical terms the building will be restricted to 12 metres in height). Those dimensions are reflected in existing three storey structures facing across Victoria Street and Water Street, albeit in the latter case in three separate residential buildings largely curtained by vegetation. Across Union Street is a traditional timber and tin shop built to both street alignments, whose neighbour is a timber residential building.
[4]2.1 states “The Local Plan protects the character of the built environment by restricting the demolition of buildings that have either character or heritage significance. Petrie Terrace and Spring Hill are two of the first parts of the City to be settled and as such, contain some of the oldest buildings and traditional character streetscapes in the City. Traditional modest residential dwellings erected on small allotments are the hallmark of Petrie Terrace and Spring Hill. These buildings and areas make a significant contribution to the City’s heritage and character and are to be retained.”
[5]2.2 states “Any new development is to be sympathetic to the scale and character of the original urban development pattern and siting of existing buildings. Proposals in the identified heritage protection precincts are to retain and reinforce the original character of buildings predominating during the period 1850–1920. Proposals in other precincts subject to building design and character requirements are to retain and improve upon the existing character by incorporating the main identifiable features, materials and detailing of buildings that predominated during the period from 1850 to 1935.”
The site’s uphill neighbours are faced with a new structure which, if its impacts are not a “monstering of the … adjoining residences” (per Mr O’Brien in Edwards & Alexander v Gold Coast City Council [2005] QPELR 226, at [29]) deprives them of a gap between the two Water Street residences which were still there 50 years ago to allow breezes, light and views through; the current building is similarly “sympathetic” in so far as constructed entirely within the former lot occupying the corner of Water and Union Streets. The former lot adjacent in Victoria Street and the one at the corner of Union Street have for decades been kept vacant and used for car parking following demolition of the houses on them.
The neighbours could hardly complain or feel badly done by if redevelopment of the three lots were to occur separately to the maximum extent allowed by the Local Plan. Indeed, an exercise to illustrate that scenario was done: see the hypothetical cross sections for detached house development, Drawing DA24 in the “Appeal Book” Exhibit 2 vol 3 tab 9. In other contexts, one might be able to say that Mr Newman and Ms Tendyke’s household could not complain if their residence with its negligible setbacks were replicated next door on the site. That is not a scenario requiring contemplation in this context, given the controls and restrictions that the Local Plan provides for. The College’s planning expert, Mr Reynolds improved on Drawing DA24 by presenting in Exhibit 46 towards the end of the hearing a series of “worse cases” of detached housing development complying with Local Plan requirements including an L shaped building embracing the northern and eastern boundaries of the Newman property which would close off sight lines and spaces for breezes that might normally be expected of detached houses in the traditional serried ranks. Less drastic in effect (but still likely to lead to loss of open amenity) would be a subdivision which provided two Water Street lots on the site having roughly equal frontages, with a view to producing a lot on the Union Street corner with a more usable area than reverting to the 1862 boundaries offers (11.28 perches less the corner truncation). A new house of similar shape with setbacks complying with acceptable solutions would preclude views from the Newman household across Water Street and shut out breezes from that direction; it would disrupt the traditional subdivision pattern of open space provided by backyards down the middle of a block from one end to the other.
In my view, the proposal is less sympathetic (and worse for the neighbours, including Mr Pini) than such subdivision scenarios. But is probably too late to entertain notions of subdivision of the site in any event, for at least two powerful reasons. First is the amalgamation of the three former lots, which occurred as long ago as 1970 and included truncation of the Union Street corner. The second is that City Plan 2000 in the Local Plan regulates the site in ways that accommodate the proposal before the court. In this regard one notes the lack of certain controls applicable elsewhere within the Detached Housing precinct and, more importantly, the Special Area designation of the site. From within the submitters’ camp, the notion emerged that upon demolition of the existing building new development should be what the Local Plan intends, namely three detached houses. If only for economic reasons, that is not going to happen, as some witnesses opined. No doubt the Precinct Intent in 3.1 whereby “a sub-division of existing allotments is inappropriate” could be overcome. With the site still amalgamated, there are no controls to prevent straddling of the former lot boundaries by a single building. In the Detached Housing precinct, GFA controls are expressly excluded, doubtless a concession made (in terms that may now be revealed to be inappropriately general) to acknowledge the special situation of small sites in the Precinct.
Alleged Mistakes by the Planning Experts: Special Areas
On 18 May 2011, at a mention to review the situation following receipt of Mr Steendyk’s written submissions, he contended for the first time that assertions contained in the expert planning evidence supporting the development proposal to the effect that the Special Areas in the Local Plan of present relevance were unprecedented and indeed not replicated in City Plan 2000 and any similar plans were wrong. He brought to light an apparent instance of expert fallibility, perhaps not by his reference to the Special Intent precincts in 4.2 of the Acacia Ridge/Archerfield Neighbourhood Plan, but more clearly so in respect of the Ithaca District Local Plan, the Milton Local Plan and the Mount Coot-tha Local Plan. Following reverse order:
Of the contending views, the court prefers that of the majority in this instance.
The CPTED aspect concerns a stairwell leading to the basement proposed at the Union Street/Water Street corner which it is suggested would provide a location for nefarious activities that Ms Tendyke has observed on the site already from time to time, and her (and Mr Newman’s) concern that provision of an area for deep planting of screening trees along their rear boundary may provide a platform facilitating entry to their premises from the site by miscreants. (This screening aspect provided another instance of the submitters’ seeking to have things both ways. Screening was at once required to make the new building less noticeable and perhaps to deal with headlight glare, but condemned as being a barrier in the way of breezes – and perhaps for being oppressively close to the boundary. One cannot avoid having some sympathy for a developer seeking to ameliorate impacts on neighbours who seems to get it wrong whatever is done). Such considerations are certainly not ignored by the court, but they are not weighty enough to stand in the way of approval of the proposal, other things being equal. The College and its advisors are and ought to be encouraged by the court to devote some thought (and undertake appropriate investigations) regarding such issues; it is encouraging that they have paid heed to Mr Newman’s attempt to demonstrate (and document by photographs) that headlight-glare may be a genuine concern.
Another subject for consideration is suggested by Mr Chenoweth’s view that improvements to the design as it stands might be possible, although he would not require them to be satisfied in respect of a performance criterion that calls for a positive contribution from a proposal. An issue in the appeal is whether there is relevantly a positive contribution if a proposal offers an outcome better than what is on the site at the moment, which this proposal, in my view, on any reasonable approach, does. In my opinion, what is required is a building or proposal that, on its own merits and regardless of comparisons with anything else, can be seen as good. I accept the view of Mr Chenoweth that it passes that test. One reads in the joint report.
“3.2.8 AC does not dispute that a building on the subject site which addresses and activates all street frontages would be a better Urban Design solution, but acknowledges that this would be difficult to achieve where there are three frontages. He considers that the proposed development achieves a pleasant and acceptable appearance to both Water Street and Union Street, although the Water Street frontage could be improved by additional articulation. AC also considers that the appearance of the frontage to Victoria Street will be unavoidably (and acceptably) impacted by the driveway, sub-station, SRV bay and carpark exhaust, but notes that these are consequences of a basement carpark with a ‘hidden’ rear vehicle access point, and that on balance this has reduced the potential visual impacts of a surface parking lot or a large basement carpark door on the street.
3.2.9 GO’B knows of no stated requirement under the Planning Scheme for a building of the proposed type to provide pedestrian access to and to activate every street to which it has frontage. The proposed building provides direct pedestrian access to Water Street and provides fenestration and articulation to both Water and Victoria Streets. If the Court considered it necessary to provide some fenestration to Union Street GO’B would not oppose it but considers that the articulation to the 2 storey south west facing end of the building is satisfactory. AC regards the issues of fenestration and articulation as architectural issues outside his area of expertise. However, in terms of visual impacts as seen from external viewpoints, AC considers that the RACS development as currently proposed has a satisfactory form and appearance but would be improved further by additional articulation to the Water Street frontage and additional fenestration to the Union Street frontage.”
Mr Steendyk considers that “the proposed building does not contribute positively in the manner described above for the manual arts building” of Terrace. The conflicting views heard in this case indicate that aspects of personal taste are unavoidably going to intrude. There are many features of the building which are gestures to the existing built character of the area. Anyone inclined to spend some time looking for these will find the building of interest. By the time of the last day of the hearing, the new Terrace year 7 building had been freed from its covered external scaffolding, revealing a structure uncannily like the proposal. It may have been “fast-tracked” and not provided any inspiration or justification for the proposal at the time of the relevant development application; however, it ought not to be ignored now. Mr Mainwaring and the submitters would argue that this large structure is irrelevant because it is located in LR1, rather than the Detached Housing precinct. The building is so close (directly across the road from Dr Crawford) that it would be unrealistic to ignore it.
The visual amenity experts are to be commended for requesting that “oblique montages showing the development context with Water Street and its elevated backdrop should have been provided for such a sensitive development application”. Those montages, now prepared by Mr Elliott, to my mind confirm the opinions of Mr O’Brien and Mr Chenoweth. It is unfortunate that fig 3 was prepared too early to show the new Terrace structure unveiled and to invite preparation of a further montage centred on Victoria Street featuring it.
“Misdeeds” of the developer
There seemed to be suggestions implicit in the submitters’ cases that the appeal ought to succeed as a punishment or lesson to the College for things done wrongly or improperly by it. One is the alleged unlawful carrying on of an education activity on a site approved only for an “administration office”, allied with which was the failure in the current application to acknowledge that the education use had been conducted unlawfully; it seemed to be suggested that not doing so concealed important aspects of the application. It was submitted that opportunities to regularise the use for education (if indeed it was going on, which the submitters appeared to contest), were not taken up, for example in 1992, when the College got itself recognised in the then relevant Special Area provision as the occupier, rather than the Queensland Cancer Fund. In truth the evidence is that to a sufficient extent the College has been carrying out the education function on the site from its early days there.
The other aspect concerns a montage or montages prepared by agents of the College in presenting the proposal to local people. The montages used purport to show the new building in its streetscape. Presumably deliberately, they distort the scale, making the proposal appear more of a minnow in its context than the whale which it really is. It was done rather clumsily. The inspiration or motivation for this exercise was not explored. The images went in part to the Council, as well as being shown to the local people, whose attitudes the College’s agents went to considerable trouble to ascertain and influence. Plenty of submitters were not misled by these distorted depictions of the proposal. Some may have been misled and dissuaded from putting in submissions. The court has no concern that any point that might have been made about the size of the proposal has been lost. The “monstering” point has effectively been made and received consideration, first in the Council, and now in the appeal. The representation presented to the Council at p. 27 of the MarCom Communication “Pre-DA Lodgement Phase consultation report” of the Water Street frontage as envisaged is rather less egregious than what was produced to inform the local people. See Exhibit 2 folder 3 p. 191. What the Council was shown as a montage of “Proposed building showing height in relation to surrounding buildings” still shows the height of the two storey section (misleadingly) as roughly the same as that of the corner shop opposite, but has been cropped so as not to show the whole length of the shop and to deprive the viewer of an impression that the proposed building is not much more than twice the length whereas the true length would probably be more than three times that of the shop. What is alleged to be the comparison can be seen in attachment RT-4 to Ms Tendyke’s affidavit Exhibit 39. There is now room for three vehicles to park in front of the stage 2 extension, not only two. Going by cars depicted parked, the MarCom report to the Council would suggest that the new building will be not much longer than the present one and no taller!
Even if there were anything nefarious in these aspects, I am unaware of any practice or doctrine in the court that would require a development proposal otherwise acceptable to be rejected on the grounds that the developer was itself or vicariously responsible for actions of which the court disapproved. I am, of course, aware of Bunnings Building Suppliers Pty Ltd v Redland Shire Council [2000] QPELR at 193, where Senior Judge Skoien deplored manipulation of public opinion and steps taken with a view to precluding adverse submissions. His Honour left for later cases examination of the ramifications of such conduct which, I hasten to say, could not reasonably be said to be reflected here.
There were even intimations of future inappropriate dealings with the site that it was hinted the College might engage in. One was a suggestion that the College might get its new building up and then transfer it to Terrace to permit expansion which the school may well desire to pursue. Much was made of the co-operation said to exist between the two institutions by way of sharing of parking facilities. I can understand the “foot in the door” argument being made, but there is no more here than speculation which cannot inform the court’s decision. There is the hurdle of the requirement to protect no more than the particular use permitted by the Special Area approved use while it continues, which may not easily be overcome. (The evidence does not reveal what was involved in Terrace taking over for its purposes the Special Area containing the RACQ building.) The other fear for the future expressed arose out of contentions that statements in some documents before the court indicated that the College made its premises available on an occasional basis to outside bodies, such as the medical school, and might (or did) charge fees for use of their facilities. We have no idea whether the fees were merely nominal and might not even have covered costs, let alone involve any money-making aspect. The court has no concern that the College is pursuing some undisclosed agenda of establishing or continuing a use of letting out rooms in its building for profit. To do so would be a development offence, and may well result in complaints if it occurred (especially occurred in a way that caused nuisance to anybody), leading to enforcement action by the Council. This court ought always to take pause if concerned that a use applied for is not intended to be seriously pursued, but to be a cover for some other use. That is not this case at all. There is not the slightest reason to doubt the genuiness of the College’s assertions regarding what it envisages for its site.
Exhibit 17 is the “Submission Summary” from the Council’s internal planning report used in assessment of the application. The summary establishes that submissions covered essentially everything examined in this appeal, including storey and height issues, GFA, bulk and scale, alleged excessive length and lack of sympathy in character and scale and respect for the original urban development pattern, lack of “positive contribution”, insufficient separation between buildings and negative impacts on daylight, air circulation, breezes, outlook and privacy, also overshadowing of solar panels on a neighbouring residence, inappropriate roof type and an alleged history wherein the College “have operated evening training illegally”. With rather less enthusiasm, the court reaches the same conclusion.
The response as per Exhibit 17 may seem a little peremptory. It relies heavily on the Special Areas provisions regarding expansion or intensification of the existing (“existing/lawful”) use, considering the expansion reasonable, and rejecting submitter contentions to the contrary. Lacunas in the planning scheme as it applies are noted, for example in respect of GFA, possibilities of requiring refurbishment of the existing building, regulating the inconveniences and disruptions locally in the construction period. There was at least one error in asserting that acceptable solutions in respect of building height are met; generally speaking, the view taken was that “the proposal is considered to meet the requirements of the Local Plan in terms of height, setbacks and character and achieve an appropriate performance solution for this site”.
Water Street setback
For practical purposes there is no setback, although some provision is made for plantings for modest landscaping.[8] This aspect was not raised in the submissions, according to exhibit 17, a document of a kind which in my experience is usually a reliable guide to the content of submissions. Although reduced a little, the setback is consistent with that of the existing building. Further, it is consistent with that of the shop across Union Street which is built to the boundary. The same is the case for the shop to the north on the corner of Rogers Street. Water Street is a wide thoroughfare, especially for Spring Hill and nothing is lost by the lack of setback. Providing the 6 metre setback would preclude development of any useful kind. While there are more issues for the development application than the internal planning report may have noted, the outcome proposed is shown to be an acceptable one.
[8]Such was the detail canvassed during the appeal that the impact of provision for soil on the utility of some car parks was explored; as would be expected, the traffic engineering evidence was persuasive that appropriate minor adjustments could readily be made to preserve the landscaping provision.
The Appellants’ Closing Submissions
The appellants provided a succinct written closing statement.
Decisions in the court were collected which show:
· rejection of a proposal for a three-storey eight unit apartment building in New Farm adjacent to a Heritage Place (A&I Holdings Pty Ltd v Brisbane City Council [2002] QPEC 72)
· rejection of a large motel with 68 units in a GFA of 50% of site area in the proposed Particular Development Zone, whereas only 49 rooms were possible with the 35% GFA limit prevailing in the relevant Inner Residential Zone, the site being in the Character Residential Area (Butterfield Projects Pty Ltd v Brisbane City Council [2002] QPELR 128 – the proposal failed because of parking problems and failure to show “need”)
· rejection of a large new house (an admirable example of contemporary design) with a roof of flat appearance and a square façade considered to be unacceptable in the designated Heritage and Character Building Area in Wilston (Kwok v Brisbane City Council [2002] QPELR 65) and
· an “inappropriate development in Spring Hill north of Boundary Street”: Harold Samson v Brisbane City Council [1999] QPEC 34. The proposal refused was for the “prohibited” use of existing premises in Precinct LR3 under the Development Control Plan as a hotel subject to a general liquor licence and a proposed “adult entertainment theme” in an existing modern 2-3 storey building at the corner of St Paul’s Terrace and Boundary Street.
The greatest reliance was based on Stappen Pty Ltd v Brisbane City Council [2005] QPEC 3; [2005] QPELR 466 for the proposition at [34] that:
“It cannot be said the designation of this area for character housing is invalid or has been overtaken by events merely because some discordant structures have, in the past, been permitted, or that they signify a diversion from the planning intent for the district. Once that it is acknowledged, it must follow that the provisions of the planning scheme are entitled to their full weight and effect.”
Judge Wilson noted at [18] that the Intent for the character residential areas emphasises new buildings being no more than two storeys and “strongly” reflecting the city’s pre-1946 character housing:
“This emphasis does not appear in any of the other categories of residential area, and plainly reveals that significant weight is to be given to the maintenance of the character of these areas.”
The unsuccessful developer appellant in its case attached particular weight to the location of its site on Annerley Road, and the nearby presence of buildings and features contended to militate against the conclusion that the area was exhibiting a pristine “character residential” nature: see [9]. The difficulty in way of these arguments is that neither the heritage nor the character residential provisions apply here. See [13] and [14] above.
The submission was critical of the College’s development relying heavily on “two technicalities” as they were called, the GFA exemption and “the absence of reference to commercial development”, which I take to refer to the circumstance that restrictions placed on new development relate only to residential development, and, for the most part, new houses. As is said elsewhere, the court must take the planning documents as they are. It is not a justification for reworking them that the express rationale for the GFA exemption, namely that it is to save the potential for small lots, has no application here. As was submitted, the site does not exhibit “difficult terrain”. It is, however, a narrow site.
I do not accept that the proposal is “development not anticipated by the City Plan” as “commercial development in the Detached Housing precinct”. This was said to bring in Strategic Plan provisions which have been “violated” in nominated respects. In my view, the Special Area provisions do anticipate development of the kind proposed.
The amenity arguments relate in particular to Mr Newman’s residence and are considered elsewhere. The particular aspect of headlight glare was dealt with by a demonstration documented in photographs which added sufficient colour to the complaint of “headlight glare as vehicles pass over the gutter to access the car park driveway” to induce the College to consider a solution in terms of a hood of some kind. I disagree with the implied contention that need must be established, but agree that the planning argument said to favour the development that it is part of an educational precinct or educational hub is irrelevant.
Conclusion
The appeal fail except to the extent of changes to the proposal that may eventuate from the College’s expressed willingness to consider the headlight glare aspect and from reconsideration of other aspects mentioned in these reasons such as arrangements for air-conditioning equipment and the CPTED issues. See [58] above and MR Chenoweth’s suggestions noted in [85]. Before orders are made the appellants and the co-respondent should explore these matters.
“… The term “reduced level” has a long history of accepted usage in surveying, engineering, architecture and the building industry. This terminology related to the distance above or below a specific datum surface, and had real meaning when datums were widely scattered and not related to one another. With the advent of the Australian Height Datum there is an increasing tendency to discuss “heights” rather than “levels”, e.g. finished floor height. See AS 1100, Part 101-1984.
8.2 The Australian Height Datum (AHD)
On 5th May 1971 the Division of National Mapping, on behalf of the National Mapping Council of Australia, carried out simultaneous adjustment of 97,320 kilometres of two way levelling, holding mean sea level for 1966-1968 fixed at zero at thirty tide gauges around the cost of the Australian continent. …”
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