Rintoul v Brisbane City Council and Greengate Property Group (No 2)
[2013] QPEC 47
•20 September 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Rintoul & Ors v Brisbane City Council and Greengate Property Group (No 2) [2013] QPEC 47
PARTIES:
MATTHEW RINTOUL & ORS
(Appellants)v
BRISBANE CITY COUNCIL
(Respondent)and
GREEENGATE PROPERTY GROUP
(Co-respondent)FILE NO/S:
D4492/2012
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
20 September 2013
DELIVERED AT:
Maroochydore
HEARING DATE:
25-26 July 2013, 29-30 July 2013, 2 August 2013
JUDGE:
Robertson DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT submitter appeal involving an integrated aged care and independent living facility to be developed on land within Community Use Area and containing a Heritage Place namely St Luke’s Church; where land is also partially within a Demolition Control Precinct.
HERITAGE ISSUES whether school on site has heritage values; whether proposal will adversely affect views of the Heritage Place; where proposal involves re-location of pre-1948 house on land to another part of the site and within DCP; whether proposal conflicts with Heritage Code and/or Demolition code.
AMENITY where land is surrounded by a precinct of pre1948 character housing; whether bulk scale and density are such as to unacceptably impact on amenity of surrounding locality; whether proposal has unacceptable impact on character values of surrounding locality
Legislation:
Sustainable Planning Act 1997 (Qld)
Cases:
Calvis v Brisbane City Council [2009] Q.P.E.L.R. 35
Gladstone Ports Corporation Ltd v Queensland Heritage Council [2012] Q.P.E.C 9
Greek Orthodox Community of St George Brisbane v Brisbane City Council & Ors [2012] Q.P.E.L.R 314
Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] Q.P.E.L.R 447
COUNSEL:
Mr J Haydon for the Appellants
Mr T Trotter for the Respondent
Mr A Skoien and Mr M Batty for the Co-respondent
SOLICITORS:
Woods Prince for the Appellants
Brisbane City Council Legal Services for the Respondent
Thynne McCartney for the Co-respondent
On 19 October 2012 the respondent Council (Council) approved a proposed development on land at Taylor Street, Woolloongabba. The Co-respondent developer Greengate Property Group (Greengate) is the proponent.
The land is irregular in shape and has frontages to Taylor Street, Buranda Street and Queen Bess Street, and has an area of 6,621 m2 (the land).
The land is improved by a locally listed heritage place, St Luke’s Catholic Church, which faces Taylor Street, a pre-1946 dwelling at 39 Taylor Street, and a two-storey concrete building constructed in 1948 which is presently used as a community hall by the St Vincent de Paul Society, but which was formerly used as a school.
The development approval is for an integrated retirement and aged care facility contained in four separate buildings of three and four storeys in height. The land is to be reconfigured into three lots one of which will contain the church which is to be retained.
One building (with frontage to Taylor Street) will contain aged care and ancillary features with 48 beds, and the other three will comprise 61 independent living units.
The pre-1946 house in Taylor Street, which is known as “Edwards House” after a former priest, will be relocated to a vacant block within the land on the corner of Queen Bess and Mossgrove Street. The block was previously used as a tennis court in association with the school.
The locality is bounded by the Pacific Motorway 100 metres to the west, Logan Road 300 metres to the south, and the Cleveland-Shorncliffe train line 250 metres to the south and Balaclava Street 500 metres to the north. The site location in its surrounds is well depicted in the aerial photograph figure 2 at page 30 of the first joint expert’s report of the town planners contained in Exhibit 9.
The Princess Alexandra Hospital is in close proximity as is the Mater Hospital.
Planning controls
The land has an “urban footprint” designation under the South East Queensland Regional Plan. Under City Plan 2000 (the Planning Scheme) it is zoned Community Use Area CU2-Community Facilities and part of the land is in a Demolition Control Precinct. It is surrounded by land in the Character Residential Area dominated by, and forming a precinct of, pre-1946 housing.
St Luke’s Church is listed in the Planning Scheme Heritage Register as a Heritage Place. Exhibit 14 is a series of two aerial photographs on which Mr Perkins (Town Planner for Council) has superimposed the land areas within the land which are:
(a) The subject of the Heritage Place listing, and
(b) covered by the Demolition Control Precinct.
The appeal
The Development Application was impact assessable. There were 78 properly made submissions, of which 48 were in favour. Those against predominantly were from residents either adjoining the site at various points, or in very close proximity to it. This is understandable as they will be most affected by the proposal.
Exhibit 20 is a very helpful map prepared by Mr Waugh (town planner for the appellants), which shows the location of the residences of the adverse submitters.
A number of those submitters appealed against the Council decision on 15 November 2012. The grounds focused primarily on the issue of over development and conflict with the Planning Scheme. A number of appellants have withdrawn, and there has been a change of solicitors.
In their first joint report the planners, Mr Perkins, Mr Waugh and Mr Vann (for Greengate) summarised the issues in the appeal as raised by the remaining appellants in their Material Facts and References. These are that, the proposal:
(a) Is inconsistent with the scale, height and bulk of the surrounding area and is not within reasonable expectations for development of the area;
(i) Does not have adequate setbacks or landscaping;
(ii) The bulk, scale and density is incompatible with the surrounding Character Residential Area and will compromise amenity;
(iii) Causes overshadowing and reduces available light to neighbours;
(iv) Does not include provision of outdoor space for physical activity;
(v) Has poor access to public transport and is not located in an established centre.
(b) Does not enhance the heritage building on the site;
(i) The scale, height and bulk of the proposal reduces the cultural significance of a church;
(ii) The proposal was not prepared in accordance with the Burra Charter Places of Cultural Heritage Significance 1998.
The urban design and visual amenity experts met on 2 April 2013. The appellants did not retain an expert in these areas, so the experts, Mr Curtis (urban design and visual amenity) retained by Council, and Dr Hassall (visual amenity – landscape architecture), and Mr Olsson (urban design) both retained by Greengate, met on that day and subsequently, and produced a joint report dated 30 April 2013 designed to address issues of overshadowing, impacts on amenity, and provision of outdoor space for physical activity, and called for further information from Greengate. Greengate responded with further information, and amendments to the Plans the subject of the Decision Notice, designed to address some of the issues raised by the appellants were produced, and are contained in Exhibit 8B. The changes to the plans the subject of the Decision Notice are set out in full in Exhibit 52.
No party or expert contends that these proposed changes are other than minor changes in the sense in which that term is used in the Sustainable Planning Act 1997 (the SPA), in that the changes do not lead to a substantially different development. I am satisfied that the proposed changes are minor; and, as a consequence the appeal will be determined on the basis of an assessment of the changed plans set out in Exhibit 8B.
As a consequence of these joint meetings, and the joint meetings of the town planners and heritage architects, the issues in the appeal narrowed. The issues remaining can be generally characterised as follows:
(a) The heritage value of the old St Luke’s school;
(b) The proposal is over development of the land in the sense that it would lead to unacceptable impact on amenity of surrounding residents, and on character and heritage values both on the land and in relation to the surrounding area. This last point relates to a dispute among the heritage experts as to the impact of the proposal on the Heritage Place (the Church);
(c) The proposed removal of the priest’s house, not only compromises heritage and character values, it also will have impacts (e.g. overshadowing) on amenity on its new neighbour in Buranda Street. (In this regard, as is common in the older suburbs of Brisbane, the name of the street changes from Buranda to Mossgrove somewhere at or near the intersection of that street with Queen Bess Street).
In the appellants’ submission, with these issues in mind, the proposal conflicts substantially with various Planning Scheme provisions, which conflict is not overcome by grounds.
Greengate has the onus of establishing that the appeal should be dismissed.
Discussion
As the proposal is impact assessable, it is to be assessed against the whole of the Planning Scheme.
It can be accepted that there is a strong theme running through the Planning Scheme, commencing in the Strategic Plan and the Desired Environmental Outcomes, which focuses on protecting and promoting the City’s “unique environment, such as its timber and tin architecture”, and protecting character buildings and enhancing character of areas surrounding development.
In cross-examination of the planners, Mr Haydon confirmed that there has been a long term intention expressed in various iterations of the Planning Scheme to protect character and heritage values going back decades. This was no doubt designed to control removal of character residential buildings, particularly those of pre-1946 construction which surround the land the subject of the appeal; and to protect places and precincts having heritage and cultural significance.
As I have noted, the proposal is to be assessed against the whole of the Planning Scheme including relevant Codes in Chapter 5 and any relevant Local Plan Code in Chapter 4.
It is accepted (by reference to 2.5.2 in Chapter 3) and the Table of Assessment in the Community Use Area – CU2 – Community Facilities, that this proposal is generally inappropriate on this land. The proposed used is not caught by the definition of “Community facilities” in the Definition section of Chapter 3 of Volume 1 of the Planning Scheme, and is more appropriately defined as a ‘Multi-unit dwelling’”.
As the planners note in JER1, the proposal is not a typical multi unit dwelling, as it is designed to meet a specific need for older people, and involves supporting community style uses not commonly found in multi-unit dwellings e.g. communal dining, and indoor and outdoor communal recreation. As they noted, the development is not consistent with the Community Use – Community Facilities (CU-2) Area as it does not fall within the definition of “Community facilities” as “the provision of cultural, social or community services e.g. community centre, community hall, youth club, library, church or public building”. Mr Waugh’s real concern, which he has clearly articulated throughout, is with conflict (in his opinion at many levels of the Planning Scheme), including in the Community Use Area and Codes with the requirement that the built form be consistent in scale, height and bulk with that of the surrounding area.
The site is governed by the East Brisbane/Coorparoo District-Local Plan. Development principles 2.1, 2.2 (Significant character housing and streetscapes are to remain where possible) and 2.7, are engaged, as is Precinct Intent 3.4 which refers specifically to “non-residential uses such as St Luke’s”. The Intent is that if such uses “cease or relocate, residential development may be encouraged”. I agree with Mr Trotter that the proposed development does not conflict with any of these relevant statements in the Local Plan provisions.
With these Local Plan provisions in mind, all planners, appropriately in my view, agree that the proposed use is an acceptable land use for the land as a residential use in an area surrounded by residential uses.
As between Mr Waugh on the one hand, and Mr Perkins and Mr Vann on the other, there is dispute as to the relevance of certain Codes in the assessment process. Chapter 5 of Volume 1 of the Planning Scheme, pages 3 to 5, provides guidance to an assessment manager in the use of the Codes. Therein, a distinction is made between a “primary” Code which “is a Code listed as an Applicable or Relevant Code in the Level of Assessment Table”; and a “secondary” Code which “is a Code called up in a ‘primary’ Code”. The Level of Assessment Table for a Community Use Area such as the land does not specify any Code for this proposed use; so resort is then had to the summary table in s 1.3 of Chapter 5 Volume 1 as “a guide to the range of Codes that are likely to be considered in assessing the application”.
The summary table indicates which Codes are applicable to a particular proposal. That table provides:
Code
Generally Applies to
Particular Location or Circumstances
Community Use[1]
Material change of use for the use given in a Community Use Area on the Planning Scheme Maps
In a Community Use Area or community uses in other areas.
Demolition
Building work for the demolition
…. of a building except for minor demolition work
On a site in the DCP where any part of the building was constructed in or prior to 1946
Heritage Place
Building work (including demolition)
Reconfiguring a lot …
On a premises that includes a heritage place or is part of a heritage precinct or on a premises adjoining a heritage place or a heritage precinct
Residential Design
- Character
Material Change of use and/or building work for a house or multi-unit dwelling
In the Demolition Control Precinct
Residential Design
- Low Density, Character and Low Medium DensityMaterial Change of use and/or building work for a multi-unit dwelling
In
· a Low Medium Density Residential area
· a Low Density Residential Area
· A Character Residential Area
· A Centre
Residential Design
- Special Needs
Material Change of use and/or building work for a residential development for people with special needs who may require care due to reasons of age or health
Transport, Access, Parking and Servicing Code
Material Change of use for building work
[1]Community Use is not defined, however, “community facilities” is “a use of premises for the provision of cultural, social or community services, eg: community centre, community hall, youth club, library, church or public building.”
It is common ground amongst the planners that the following Codes are called up:
(a) The Demolition Code;
(b) The Heritage Place Code;
(c) The Residential Design-Character Code;
(d) The Residential Design Special Needs Code; and
(e) The Transport, Access, Parking and Servicing Code.
Although Mr Vann agreed in the first joint expert reports (as did Mr Perkins) that the Residential Design – Low Density, Character and Low-medium Density Code was one of a number of “key” Codes, Mr Trotter and Mr Skoien submit that it is not. There is also disagreement amongst the planners about the applicability of the Community Use Code.
In the circumstances here, resort must be had therefore to the words of the Codes themselves, and in particular, the Application section, to see if they are applicable to the assessment of this proposal. Schedule 3 of the SPA also assists in the definition of “Applicable Code”:
“‘Applicable Code’ for development, means a code, including a concurrence agency code, that can reasonably be identified as applying to the development.”
In Greek Orthodox Community of St George Brisbane v Brisbane City Council & Ors [2012] Q.P.E.L.R 314 at 321 [55], Dorney QC DCJ observed:
“In any event, the ‘Application’ section at the beginning of the Demolition Code is a ‘guide’ to the circumstances in which that Code is likely to be considered in assessing an application, where no specific Relevant Codes are identified in the Level of Assessment Table for Impact Assessable Development. For example, in the Level of Assessment Table where there is no Code listed for ‘any other material or change of use’ one may then go to the ‘Application’ section of a relevant Code. However, in this case the Heritage Place Code is specified and it does not call up the Demolition Code.”
As I understand Mr Haydon’s argument, he submits that other Codes including the Community Use Code are also relevant or “called up” on a proper construction of the Planning Scheme. Mr Trotter submits, as does Mr Skoien, that the “better view”, based on the application of well recognised principles for construing Planning Schemes: Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] Q.P.E.L.R 447; and more generally for construing statutory instruments : Gladstone Ports Corporation Ltd v Queensland Heritage Council [2012] Q.P.E.C 9, [21]; is that the Community Use Code, the Residential Design, Low Density, Character and Low-medium Density Code, and the Residential Design Character Code are not strictly applicable and the application should not be refused on the basis of conflict with these Codes.
Both Mr Vann and Mr Perkins regard the Community Use Code as being applicable, indeed as being “the primary guidance for determining reasonable expectations for the site”, along with the Residential Design Code – Special Needs Code. On a proper construction of the Application section of the former Code, I agree with Mr Waugh that the Code does not apply because, despite being in a Community Use Area in the Planning Scheme, the proposal is not caught by any of the dot points in the Application section.
It is of little moment in any event, because the issues raised on the appeal in relation to “scale, height and bulk” in relation to “surrounding buildings” and adverse impacts on amenity, raised in the Performance Criteria are also called up for consideration by an assessment manager in the Purpose section and Performance Criteria 3 in the Residential Design – Special Needs Code which definitely applies.
Despite the positions taken by Mr Vann and Mr Perkins at JER1 to the effect that the Residential Design, Low-Density Character and Low-medium Density Code is applicable, I am persuaded that, on a proper construction of the Application section of the Code, it does not reasonably apply to this proposal. I agree with Mr Trotter that the qualifying paragraph:
“Where a proposed multi-unit dwelling is located within the Demolition Control Precinct the proposed building will also be subject to the ‘Residential Design-Character Code.”,;
is a reference back to the Areas described above which do not include a Community Use Area. The site is not in a Character Residential Area, one of these listed in the Application section.
It would be quite wrong to ascribe a Character Residential type description to any part of the land, as it is designated in the Planning Scheme as a Community Use Area, part of which is in a Demolition Control Precinct.
For similar reasons I am not persuaded that the Residential Design – Character Code is applicable. The Code “only applies to Residential Areas in the Demolition Control Precinct (all Character Residential Areas are included in the Demolition Control Precinct).”
The issues discussed
Heritage issues
The appellants’ position (based primarily on the evidence of Mr Kennedy) is:
(a) That the old school building (part of which is on the lots on which the church is located), has heritage significance in itself, and its demolition will detract from the cultural heritage significance of the church;
(b) The development itself will impact on the church to an unacceptable extent, because of its size, and affect on the aspect of the church from Taylor Street;
(c) Relocation of the priest’s house conflicts with the Demolition Code.
St Luke’s Church
Mr Kennedy is of the opinion that the school itself has heritage significance and its demolition will detract from the fabric and setting of the Heritage Place i.e. the church. The starting point is to appreciate that it is the church that is the Heritage Place listed on the Heritage Register and the object of the listing, as all the heritage architects acknowledge. This accords with what his Honour Judge Robin QC said in Calvis v Brisbane City Council [2009] Q.P.E.L.R. 35 at 50 (in para [32]):
“… in my opinion, in the Schedule to the Council’s Heritage Register Planning Scheme Policy, the Heritage Place is what is listed in the left hand column, details of street address and real property description are there to assist locating the Heritage Place. They are not themselves the Heritage Place.”
The Planning Scheme contains a Heritage Register Planning Scheme Policy and makes a distinction between a Heritage Place and a Heritage Precinct. Schedule 1 to the Policy contains a list of Heritage Places and Heritage Precincts. The Policy gives close guidance to the process for entry in the Register, and sets out criteria for entry in the Heritage Register which is based on the Burra guidelines (referred to at page 5 of JER Exhibit 9 and contained in Exhibit 39).
Essentially, Mr Kennedy undertakes a Burra assessment of the old school building in his trial report, and concludes that, in his opinion, it has cultural heritage significance. I do not intend to exhaustively analyse all of Mr Kennedy’s reasons. It can be accepted that he has accurately recorded the history of the site, but I much prefer the evidence of Mr Elliott and Mr McDonald to the effect that:
(a) The old school does not have the values ascribed to it by Mr Kennedy; and
(b) It was considered by the Council when the church was being assessed under the Policy, and was not deemed then to be of sufficient cultural heritage significance to be included, for example, in a Heritage Precinct which included the church.
Initially I thought the appellants were going to mount some sort of argument along the lines that Council did not consider the school when assessing the church under its Policy. To that end the whole Council file was tendered by Mr Haydon. Clearly the object of the assessment was the 1937 church. The citation itself, which is annexed to the joint expert’s report Exhibit 9 at page 21, refers to the school on a number of occasions. At the time it included St Luke’s on the Register, Council, if it had thought the school had culturally significant values, could have listed the whole site on the Register as a Heritage Precinct. Mr Trotter and Mr Skoien referred to many such examples in the Register. Council did not, despite knowing of the school and knowing its history.
I agree with Mr Skoien that Mr Kennedy’s approach is akin to asking this Court to as it were, put itself in the place of the Council, and make an independent Burra type assessment of the school now. This would be an error of law, as a long line of authority confirms: see authorities cited at footnote 97 to paragraph 114 of Mr Skoien’s written submissions.
As both Mr Trotter and Mr Skoien note, because the school was constructed in 1948 and is in a Demolition Control Precinct, it could be demolished now at any time as exempt development under the Planning Scheme.
Impacts on the Church
The Heritage Place Code clearly applies. The Purpose of the Code is to:
“· Ensure that development does not detract from the cultural heritage significance of a Heritage Place. …”
In 3.2.2 Development on land adjoining Heritage Place … Performance Criteria Acceptable Solutions are set out:
| Performance Criteria | Acceptable Solutions |
| Operational work or changes to buildings | |
| P1 Views of the heritage place or heritage precinct identified as significant in the Heritage Register citation must not be impaired by any aspect of the proposal, including landscape and building elements. | A1 No Acceptable Solution is prescribed |
| Subdivision | |
| P2 The subdivision pattern must not result in buildings or structures that would impair visible attributes of the heritage place or heritage precinct identified as significant in the Heritage Register citation. | A2 No Acceptable Solution is prescribed |
The Heritage architects agree that the “visible attributes” or “views” referred to in P1 and P2 are the views and “visible attributes” of the church from Taylor Street. The appellants submit that, because of its height and bulk, the development will unacceptably impair the view of the church from Taylor Street.
Of all relevant experts only Mr Kennedy gave evidence that it would. I comfortably prefer the evidence of Dr Hassall, Mr Curtis, Mr McDonald and Mr Elliott to the contrary. The most striking piece of evidence in support of this conclusion is the montage, Exhibit 33, prepared by Dr Hassall. The camera he used was a digital camera akin to the human eye. He acknowledged that a montage can never completely replicate the human observer; but gave evidence that this montage represented very closely the view of the church from the point marked in Taylor Street on the document itself. With the new landscaping agreed to by Greengate and included in Exhibit 8B, the church will be framed by the buildings on either side, and still be the prominent feature of that view, and the point to which the eye of a person walking up Taylor Street from Logan Road will be naturally drawn. The colours used, and design features, including articulation, very cleverly disguise what are undoubtedly big buildings, causing the church still to be surrounded by sky and prominent. The comparison between Mr Kennedy’s photograph of the church now which is reproduced in Exhibit 33, confirms my firm conclusion that the proposal does not conflict with the Heritage Place Code.
As noted earlier, the Planning Scheme in various higher level provisions, emphasises the importance of retaining places of cultural heritage significance. The specific provisions of the Codes provide the detailed directions for assessment. Where the proposal is not in conflict with the Code, it would be very rare indeed for these higher order provisions containing more general statements to be offended if at all. There is no conflict with these higher order planning provisions in relation to this issue.
The priest’s house
The Demolition Code applies because the proposal to move the house to another location on the site, albeit still within a Demolition Control Precinct, is building work for “the demolition, partial demolition, removal or repositioning of the building …” … “on a site in the Demolition Control Precinct where any part of the residential building was substantially constructed in or prior to the end of 1946, …”. It is common ground that the house to be removed was constructed prior to the end of 1946. The purpose of the Demolition Code is to:
“· Protect the residential buildings that give the Residential Areas in the Demolition Control Precinct their traditional character and amenity;
· Protect the non-residential character buildings in the Demolition Control Precinct that contribute to the general character of the locality and provide or have provided a variety of services to the community;
· Ensure the preservation of non-residential character buildings or structures where they form part of a character landscape;
· Ensure the preservation of buildings where they form an important part of a streetscape where the buildings and streetscape were constructed and/or established in or prior to the end of 1946;
· Ensure the contribution of houses constructed prior to the end of 1946 that reflect design styles and materials other than ‘timber and tin’ architecture as recognised and retained in the Low Density Residential Area and Character Residential Area;
· In conjunction with the Residential Design – Small Lot Code ensure that houses moved on to small lots are consistent with the requirements for houses on small lots;
· Allow demolition or removal of post-1946 residential buildings or structurally unsound buildings;
· Retain traditional commercial character buildings;
· In conjunction with the Residential Design - Character Codes, ensure that precincts of houses constructed in or prior to the end of 1946 are retained and redevelopment in these precincts complements the houses constructed in or prior to the end of 1946;
· Retain low cost housing in the form of boarding houses.
Relevantly, Performance Criteria P1 and P6 are engaged.:
| Performance Criteria | Acceptable Solutions |
| Where a residential building: P1 The building: · must not represent ‘traditional building character’, or · must not be capable of structural repair, or · must not contribute positively to the visual character of the street Note: ‘Traditional Building Character’ is described in Section 4 of this Code | Where a residential building: A1.1 The building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946 OR A1.2 An engineering report must be submitted demonstrating that the building is structurally unsound and not reasonably capable of being made structurally sound OR A1.3 The demolition of a building will not result in the loss of: · traditional building character within the Demolition Control Precinct where in a Low Density Residential Area or Character Residential Area, or · traditional ‘timber and tin’ building character within the Demolition Control Precinct where in a Low-medium Density Residential Area OR A1.4 The street has no traditional building character |
It is immediately obvious that the proposal to “demolish” i.e. move the priest’s house from its present location, is in conflict with some of the dot points set out in the Purpose section above (particularly dot points 4 and 9) and, at least P1 in the performance criteria. The real question is the extent of the conflict.
The proposal is that the house be relocated in its present form (with some minor technical improvements) to a site still in the Demolition Control Precinct (so still protected by this Code), on the corner of Mossgrove and Queen Bess Streets. This will of course involve a loss to the visual character of Taylor Street, but, in my opinion will commensurately contribute to the visual character of Mossgrove and Queen Bess Street which (like Taylor Street) is made up of predominantly pre‑1946 houses.
Bother Mr Trotter and Mr Skoien make a good point relating to Mr Kennedy’s evidence, which I think may have affected the approach of the appellants on this issue and on other issues. Mr Kennedy did not seem to appreciate that the house in its new location would still be protected by the Demolition Code. More generally, and probably not fairly attributable to only Mr Kennedy, the appellants have also approached the proposal on the basis that it is in a Character Residential Area when it is not. This is a relevant matter when considering the reasonable expectations of residents affected by the proposal by reference to Planning Scheme controls.
The setbacks proposed for the relocated house are not controversial. Although P6 is probably not engaged, I nevertheless would hold that the relocation proposal does not conflict with it.
I am satisfied that the relocation of the priest’s house involves only a minor conflict with dot point 4 in the Purpose section of the Code and P1. I prefer Mr McDonald and Mr Elliott’s evidence on the heritage aspects of the relocation, and agree with the evidence of Mr Vann and Mr Perkins as to the Planning Scheme implications. Mr Skoien submits there is no conflict with the Code, essentially for the reason that the house in its location at the end of Taylor Street does not contribute in any significant extent to the importance of that streetscape. He also relies on the evidence of Mr Kennedy and Mr Elliott as to the heritage implications. In my opinion, on a proper construction of the Code provisions referred to above, these features affect the degree of conflict rather than whether a conflict in fact exists.
Overdevelopment, Visual Amenity and Amenity generally
The appellant’s case in relation to this disputed issue has a number of facets, not all necessarily compatible. Whatever Code is applied, as I have noted earlier, the Planning Scheme when read as a whole, not surprisingly emphasises the need for development to be of a density, bulk and scale compatible with surrounding Residential Areas and not compromise local amenity (see for example P3 in the Residential Design – Special Needs Code). It can be accepted that the Planning Scheme recognises such controls as important across the City.
The changes to the proposal recommended by the urban design and visual amenity experts, as incorporated in Exhibit 8B, did meet a significant number of the concerns of the appellants relating to the issues of density, bulk and scale and amenity impact, at least having regard to the evidence of Mr Waugh. He fairly acknowledged that ultimately his real concern was with the height of the proposal (as it contributed to bulk and scale), and what he regarded as unacceptable amenity impact on character of the surrounding locality.
The submitters who have provided affidavits have wider concerns. In Gillion Pty Ltd v Scenic Rim Regional Council & ors [2013] QPEC 15, I quoted with approval from the judgment of Dodds DCJ in Ackland Pastoral Co Pty Ltd v Rosalie Shire Council & ors [2008] Q.P.E.L.R. 342 at [40]. It can be accepted that the concerns of the residents are genuinely held. Their evidence was not challenged. However, a person’s subjective views as to amenity impacts, must be considered in the light of what can be discerned to be the reasonable expectations of residents informed by the Planning Scheme controls for the locality under consideration. In this case, the land is in the Community Use – Community Facilities (CU-2) Area which could be developed (without any input from surrounding residents) for other uses which could have similar amenity impacts to the proposal.
Mr Haydon’s submissions of law as to intangible amenity impacts, encapsulated in phrases such as “sense of place”, which derive from extensive jurisprudence on this important planning issue, including Broad v Brisbane City Council [1986] 2 Qd. R. 317 at 316 can be accepted. However, this aspect of amenity is also informed by reasonable expectations based on actual planning controls.
The point can be demonstrated quite well by reference to Dr Hassall’s overshadowing modelling evidence, based on the plans in Exhibit 8B. The amended Shadow Studies are contained in Exhibit 47. Using modelling techniques not challenged, Dr Hassall set out to reflect (no pun intended) in diagrammatic form the shadowing that could be expected from the proposal as amended in Exhibit 8B, with shadowing that could be expected from a Code compliant proposal on the site. Overshadowing is of course an aspect of amenity impact. The modelling he uses does not take into account existing or proposed vegetation, such as mature trees, etc., which obviously affect overshadowing in reality. This would include the two large existing fig trees on the northern boundary that are to be retained as a result of the input from the appellants and Dr Hassall. This modelling shows very little difference between the overshadowing from the proposal, and overshadowing from a theoretical Code compliant proposal on the land.
I accept the evidence of the Urban Design and Visual Amenity Impact experts that the proposal as depicted in Exhibit 8B will have no unacceptable amenity impact. I am not persuaded that the proposal, as regards bulk, scale and density, conflicts with the Planning Scheme.
I should mention some cross-examination of Dr Hassall and other experts on the height of the priest’s house once relocated to the corner of Mossgrove and Queen Bess Streets. It was said that Mr Waugh had scaled the height as depicted in Exhibit 8B as exceeding 8.5 metres. Mr Waugh seemed to debunk any concerns about height of the house in his evidence, but, as Mr Trotter observed, the proposal can be conditioned to ensure that the height does not exceed 8.5 metres, the height that would be expected of a Code compliant house built on that lot.
Mr Skoien has made submissions concerning traffic and parking issues which had previously been notified as a disputed issue but withdrawn by the appellants’ solicitor in March. As Mr Skoien notes, Mr Waugh nevertheless did opine that the proposal had a shortfall in parking provision by reference to the Transport Access, Parking and Services Code. This issue was not pursued before me. Out of an abundance of caution, Mr Viney ( Greengate’s traffic expert), was asked to prepare a supplementary report (Exhibit 32) which was not challenged. I am satisfied that the proposal does not conflict with the Code.
Resolution
It would follow that I have determined that the proposal, insofar as it relates to the relocation of the priest’s house, is in minor conflict with the Planning Scheme. This conflict is readily overcome by the uncontested evidence of economic need from Mr Duane, and aged care expert Mr Huckerby. Because of the ageing population in Australia, there is clear and overwhelming need for facilities such as these, particularly close to the CBD, which has not traditionally been where such facilities develop because of a lack of affordable land. On the basis of this evidence, I am satisfied that the local need for such facilities, particularly sited so conveniently to public transport and major hospitals, is just as strong. In my view, the effect of the evidence of these witnesses was not undermined by cross-examination. It is not surprising that there may be times when people in the independent living facilities may have to wait for a place in the aged care facility onsite, but this does not undermine the ageing in place objective of the proposal, or affect the present need for it. Given my conclusions on amenity impacts of the proposal, the appellants’ arguments about need giving way to other town planning considerations falls away. It may be that the authorities referred to by Mr Haydon in support of this aspect of his submission have to be read down in the light of the Weightman decision, but it is unnecessary for me to consider that further.
The need established for the proposal is a sufficient ground in itself to overcome what is minor conflict with the Planning Scheme. The appeal is dismissed.
2
1
1