Scott v Brisbane City Council - [2014] QPEC 11

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Scott & Ors v Brisbane City Council [2014] QPEC 11

PARTIES:

SCOTT AND OTHERS
(Appellants)

v

BRISBANE CITY COUNCIL
(Respondent)

and

PROSRL PTY LTD (ACN 159 369 454)
(Co-Respondent)

FILE NO/S:

2717/13

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court at Brisbane

DELIVERED ON:

3 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

12 to 19 December 2013

JUDGE:

Searles DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING & ENVIRONMENT – PLANNING – Submitter appeal by local residents against the Council’s approval of a development application by the Co-Respondent for the development of a 33 unit Multi Unit Dwelling development, being a 33 townhouse development spread over 10 buildings at 5 Darien Street, Bridgeman Downs.

COUNSEL:

Appellant: M Williamson

Respondent: J Lyons

Co-Respondent: S Ure

SOLICITORS:

Appellant: Connor O’Meara

Respondent: BCLP

Co-Respondent: HWL Ebsworth

Table of Contents

Application

Submitters
Council decision
Proposed development
Minor change
Site and Locality

Site

Locality

Issues in dispute
Statutory Framework
Planning Scheme – City Plan – Relevant Provisions
Desired Environmental Outcomes (DEOs) and Strategies for the City
Residential Neighbourhood
McDowall/Bridgeman Downs Local Plan
Potential Development Areas
Emerging Community Area
Level of assessment – Structure Planning Code
Residential Design – Low-Density Character and Low-medium Density Code
Draft City Plan
Principles of interpretation of Planning Schemes
Examination of issues in dispute

GROUNDS FOR APPEAL
NOTICE OF APPEAL ITEMS
Alleged conflict with Emerging Community DEOs
Joint Planning Report

A. Alleged conflict with City Plan
Is there a conflict with Emerging Community DEOs
Alleged conflict with McDowall/Bridgman Downs Local Plan (MBDLP)
Mr Buckley’s Opinion in Joint Report
Response of Mr Keirpal and Mr Mulcahy re Local Plan
Conclusion re alleged conflict with Local Plan
Alleged conflict with Structure Planning Code
Absence of Structure Plan
Appellants’ Planner’s opinion re absence of Structure Plan
Applicants’ Planners’ response re alleged conflict with Structure Planning Code
Response to absence of Structure Plan
Discussion re Structure Plan
Conclusion re Structure Code
Alleged conflict with Residential Design – Low Density, Character & Low-Medium Density Code

Purpose
Performance Criteria of Character & Low-Medium Density Code
Appellants’ Planner’s opinion re Residential Design – Low Density Character and Low-Medium Density Code
Response of Applicants’ Planners re Residential Design – Low Density, Character & Low-Medium Density Code
Conclusion re alleged breach of Character and Low-Medium Density Code
Generally Inappropriate Development
Appellants’ Planner’s opinion re generally inappropriate development
Applicant’s and Council’s Planners’ Response to generally Inappropriate Development Allegations
Conclusion re generally inappropriate development
Visual Amenity and Character – Report A Chenoweth, December 2013

B – Traffic
Joint Traffic Report
Mr Viney’s (Appellants) opinion – Joint Traffic Report
Mr Holland’s (Applicant) Opinion – Joint Traffic Report
Mr Beard’s (Council) opinion – Joint Traffic Report
Mr Viney Individual Report
Mr Holland – Individual Traffic Report
Mr Beard – Individual Traffic Report
Conclusion re Traffic and Parking

Parking

C – Need
Report – Mr J Norling on Economic and Planning Need
Discussion re need
Conclusion re Need
New draft City Plan
Overall conclusions

Are there sufficient grounds to approve the proposal notwithstanding any conflict?

Order

This is a submitter appeal by local residents against the Council’s approval of a development application by the Co-Respondent (Applicant) for the development of a 33 unit Multi Unit Dwelling development, being a 33 townhouse development spread over 10 buildings at 5 Darien Street, Bridgeman Downs.

Application

The Application was made on 25 October 2012[1] seeking approval for a Development Permit for Material Change of Use for Multiple Dwellings (35 units later amended to 33), Reconfiguration of a single lot into two lots and a new road, and a Preliminary Approval for Carrying Out Building Work. The proposal included the construction of a roundabout on Darien Road to service future development in lots to its north.
[1]Joint Planning Report, Exhibit 3(2), p 918.

Submitters

There were 102 written submissions to the Council focusing generally on the following objections:

· Traffic congestion;

· Pedestrian safety;

· Parking – on street and in proposed development;

· Character and amenity;

· Excessive demand on infrastructure;

· Environmental;

· Size and bulk; and

· Negative impact on property values.

Council decision

By Decision Notice sent to the Applicant on 17 June 2013,[2] Council approved the application subject to conditions requiring, inter alia:-
[2]Exhibit 3(1), p 318.

(a) A variety of complimentary roof covers to provide greater differentiation between the proposed buildings;[3]
[3]Condition 9.

(b) Screening of air-conditioning of other plant enclosures;[4]
[4]Condition 12.

(c) Screening to protect privacy;[5]

(d) Landscaping in accordance with the Landscape Concept Plan prepared by Jeremy Ferrier, Landscape Architect;[6] and

(e) Provision of access, parking and manoeuvring for vehicles on-Site in accordance with planning scheme requirements[7]

[5]Condition 13.

[6]Condition 16; Landscape Concept Plan, Exhibit 3(1), pp 391-392.

[7]Condition 28.

Proposed development

The proposal includes the following features[8]:
[8]Exhibit 3(2), p 918-920, para 3.

(a) Total Site area of 9,412 m²comprising:-

(i) Proposed lot 1 – 2,107 m²;

(ii) Proposed lot 2 – 6,341 m²; and

(iii) Proposed new road and roundabout – 964 m²

(b) Thirty three units each with three bedrooms;

(c) Thirty three units being spread across 10 buildings within lots one and two namely:-

(i) Lot 1 containing three buildings:-

· Building A (units 1-5)

· Building B (units 7 and 8)

· Unit 6 as a stand alone building; and

(ii) Lot 2 containing:-

· Building C – Units 9 to 13;

· Building D – Units 14-17;

· Building E – Units 18-21;

· Building F – Units 22-25;

· Building G – Units 26-29;

· Building H– Units 30-32; and

· Unit 33 a free standing unit

(d) A building height of two levels not to exceed 8.5 m;[9]
[9]Exhibit 3(1), p 326, condition 6.

(e) Site coverage of 3,061 m² (32.5%);

(f) Gross Floor Area (GFA) of 3,168 m² (33.7%) of Site area;

(g) Total open space of 3,863 m² (46.1% of Site area) comprising:-

(i) Communal open space of 1,127 m² (13.5%); and

(ii) Private open space of 2,736 m²an average of 82 m² per unit; and

(h) 51 car parks, with 34 in garages and 17 being uncovered visitor car parks.

Minor change

At the hearing the Applicant made an application for a determination that certain changes to the plans since Council approval constituted a minor change within s 350 of the Sustainable Planning Act 2009 (SPA). These changes, which I determined to constitute a minor change, were:-

(a) An increase in the gap between buildings F and G from 2.7654 m to 4.8 m;

(b) The provision of a different colour palette;

(c) Screening or internalisation of the hot water systems between Darien Street and the buildings and;

(d) Nomination of a refuse bin location for collection purposes.

Site and Locality[10]

[10]Exhibit 3(2), p 917 – Joint Planning Report.

Site

The Site, described as lot 6 on SP224183, is located on the northern side of Darien Street at its intersection with Beckett Road. It has a 190 m frontage to Darien Street, frontage of approximately 35 m to Beckett Road, and slopes some 9% from the North East boundary to the South West boundary on the Darien Street frontage. There is presently a house on the Site near the Darien Street alignment and a handful of trees and shrubs at its rear along the eastern southern boundary.

Locality

The immediate locality largely comprises one and two storey detached dwellings with lot sizes of normal residential lots to the south and west and larger rural lots, some identical in shape and form to the subject Site, to the north. There is another 17 unit town house development called Fairview Villas which is located approximately 180m to the west of the Site. Fairview Villas also gains access from Darien Street.

The following uses adjoin the Site:

· To the north, a detached dwelling;

· To the south, Darien Street with single dwelling houses on its southern side;

· To the west, Albany Creek Road Reserve, a major recreational facility; and

· To the east, Beckett Road

Under City Plan the Site is:-

(a) Within the Residential Neighbourhood’s designation in the Strategic Plan;

(b) Within a Rural Area; and

(c) Subject to the McDowall/Bridgman Downs Local Plan, under which it is identified as a Potential Development Area.

Issues in dispute

The following issues are in dispute:-

A. Whether the Proposed Development is in conflict with City Plan;

B. Whether it will create a traffic hazard or parking problems in Darien Street; and

C. If any conflict with City Plan is found, whether there are sufficient grounds to warrant approval despite that conflict;

Statutory Framework

The appeal is to be determined under SPA. Section 493(2) places the onus on the Applicant to establish that the appeal should be dismissed. The appeal is by way of hearing anew under s 495(1) and is to be decided on the laws and policies applying when the application was made, but the court may, under s 495(2), have regard to, and give appropriate weight to, any new laws and policies.

Section 314(3)(b) makes relevant to the court’s assessment of the application, any development approval for the Site. In that regard, by Decision Notice of the Council delivered to the previous owners of the Site on 16 January 2012,[11] Council approved the configuration of the Site from its then and present single lot into 13 lots.
[11]Exhibit 3(2), p 869,

Planning Scheme – City Plan – Relevant Provisions

The proposal is to be assessed against City Plan which is a comprehensive statement of Council’s intentions for the future development of Brisbane. As part of City Plan, the Brisbane Strategic Plan (BSP) sets out the broad policy of City Plan and is a reference point for general development policy. It has three main components:[12]
[12]Exhibit 21, p 7,

(a) Vision – Brisbane the Liveable City;

(b) Desired Environmental Outcomes (DEOs) and strategies for the City which set out broad policy at a Citywide level and which, with their supporting strategies, reflect a balancing of the components of ecological sustainability in the context of the matters dealt with by the Plan; and

(c) Elements of the City which express the DEOs in terms of the overall land use structure dealing with such matters as Brisbane Green Space System, residential neighbourhoods, industrial locations, Centres and the Movement System.

The Strategic Plan addresses a time horizon through to 2011 hence the City Plan review resulting in the Draft City Plan to which I shall later refer.

Desired Environmental Outcomes (DEOs) and Strategies for the City

The DEOs form the basis from which all other provisions of the Plan flow complemented by Area DEOs for the seven broad areas into which the city is divided: Green Space Areas, Emerging Community Area, Residential Areas, Industrial Areas, Centres, Community Use Area and Road Area.[13] These area DEOs provide an increasing level of specificity in relation to development.
[13]Exhibit 21, p 33, City Plan, ch 3, p 3,

Measures to achieve the Citywide DEOs also cascade through City Plan and include Levels of assessment providing guidance on assessment processes and relevant Codes. Within those Codes and related conditions the Purposes, Performance Criteria, Acceptable Solutions and Information Requirements are contained.[14]
[14]Ibid, p 8, City Plan, ch 2, p 4,

One Citywide DEO 3.2.1[15] seeks to enhance social diversity, choice and accessibility through, amongst other things, housing diversity and affordability of providing a wide range of housing types and tenures across the city to meet the affordability, life cycle and lifestyle needs of different households.
[15]Ibid, p 10,

Residential Neighbourhood

The subject Site is within the Residential Neighbourhood designation in the Strategic Plan in relation to which City Plan speaks of[16] the challenge of ensuring sufficient supply of residential land and housing to provide a range of housing choices and support the diversity of people and activities that contribute to a broad social mix in the City. It speaks of people being able to choose their residential location with realistic expectations for the future amenity of the area hence the City Plan’s strategic direction to prevent the intrusion of any development that could seriously detract from residential amenity. Those community expectations need to be balanced with expectations of housing choice to meet resident needs during all stages of their life and to meet different lifestyle choices.

McDowall/Bridgeman Downs Local Plan[17]

[16]Ibid, p 20-21, City Plan, ch 2, p 16-17,

[17]Ibid, p 80, City Plan, ch 4, p 337.

City Plan has 74 Local Plans covering four groups – Older Suburbs, Postwar Suburbs, Outer Suburbs and Specific Localities. The Site is subject to the McDowall/Bridgeman Downs Local Plan (MBDLP) within the Outer Suburbs group under which it is identified as a Potential Development Area. Local Plans override any parts of City Plan in the event of conflict.[18] Within the seven abovementioned broad areas within which the city is divided, the Site falls within the Rural Area as one of the five Green Space areas. Whilst the Local Plan does not replace that Area allocation it puts forward more locally focused desired land use and built form outcomes for the subject area.
[18]Ibid, p 39, City Plan, ch 3, p 27.

Local Plans identify the particular characteristics of the District to be considered in assessing new development proposals, and identify neighbourhoods where specific use or built form outcomes are recommended. Each Local Plan is supported by a map and statements of desirable actions providing a more complete picture of the Council’s long term intentions for each plan area.[19]
[19]Ibid, p 74, City Plan, ch 4, p 5, para 1.2.1.

Potential Development Areas

Of the 74 Local Plans in City Plan, the Potential Development Areas are located only within the 25 Outer Suburbs local plans. These Areas provide potential development opportunities broadly for either residential or industrial purposes taking into account factors such as location, availability of services, housing choice, environmental constraints, amenity and existing patterns of development. The relevant Local Plan indicates the preferred development type and densities taking into account such factors as location, availability of services, housing choice, environmental constraints, amenity and existing patterns of development.

These Areas are intended to provide for a mix of housing types, styles and densities namely:-

(a) Very Low-density Residential;

(b) Low-density Residential;

(c) Low-medium Density Residential; or

(d) As otherwise specified in the Local Plan[20]

[20]Ibid, p 77, City Plan, ch 4, p 289, para 4.2.3.

Sub-paragraph (d) above is the relevant type for present purposes because the MBDLP does not refer to, or indicate a preference for, a type of development by reference to types (a) to (c) above. Rather it specifies that development in the area where the Site is located will be regarded as occurring in the Emerging Community Area and assessed against provisions of that Area in chapter 3 of City Plan.[21] It further provides that proposals must include a mix of larger lot sizes, retain existing vegetation and minimise development in vegetated or other scenically important areas. Where higher densities are proposed they must be located in the cleared parts of the area and must comprise clusters of development surrounded by a high proportion of landscaping and open space.[22]
[21]Ibid, p 80, City Plan, ch 4, p 337, para 2.1.
[22]Ibid, p 80, City Plan, ch 4, p 337.

Emerging Community Area

The Emerging Community Area is generally suitable for urban purposes at some future time.[23] The City Plan provides that all land in this area requires the preparation of a Neighbourhood Structure Plan before development can occur. The range of housing types and opportunities are envisaged to meet different needs, lifestyle choices and housing markets diversity. Land is to be developed in an orderly sequence and in accordance with a Neighbourhood Structure Plan and/or the relevant Local Plan. Development is to be well planned and integrated promoting a sense of place and identity and community safety.[24]
[23]Ibid, p 53, City Plan, ch 3, p 41, para 4.1 – intent.
[24]Ibid, para 4.2.

Level of assessment – Structure Planning Code

It is common ground that the proposal is impact assessable and generally inappropriate in the Emerging Community Area Assessment Table and that the Structure Planning Code is thereby applicable.[25] That assessment regime results from the absence of a Structure Plan having been adopted in accordance with the Structure Planning Code.
[25]Ibid, p 57, City Plan, ch 3, p 45, Table under heading “Generally Inappropriate”.

One of the purposes of the Structure Planning Code[26] is to ensure that Emerging Community Areas are planned and developed in an ordinary and sequential fashion and have necessary infrastructure and services provided in an efficient and timely manner. As to the requirement for a Structure Plan, the Code provides for the adoption by the Council of its own Structure Plan or that provided by an Applicant. It further provides that, on less complex Sites, where preliminary approval is not warranted, an application that contains sufficient detail to fully address the requirements of the Structure Planning Code will be considered to constitute a Structure Plan. A Structure Plan is required to accompany all impact assessable applications including applications for sub-division in the Emerging Community Area.[27]
[26]Ibid, p 106-107, City Plan, ch 5, pp 2 and 7 – 218.
[27]Ibid, para 5.1.

Residential Design – Low-Density Character and Low-medium Density Code

The Residential Design – Low-Density Character and Low-medium Density Code is also relevant[28] because the assessment involves a Material of Change Use for a Multi-Unit Dwelling and is within a Potential Development Area identified in the relevant local plan.
[28]Ibid, p 93, City Plan, ch 5, p 165.

The Purpose of this Code includes the statement that, as the areas in which the Code applies, will contain a mix of (sic) houses and multi-unit development, the purpose of the Code is to effectively manage impacts of the new development on neighbours while encouraging multi-unit development that provides a pleasant living environment for its occupants.

Draft City Plan

According to Council’s planner, Mr Mulcahy, the Draft City Plan was publicly notified from 6 May to 30 July 2013. Mr Mulcahy said that it is anticipated to come into effect sometime in 2014. Under that Plan the Site is retained in the Rural Zone with any development to be treated as if in the Emerging Community Area and is retained as a Potential Development Area in the draft McDowall/Bridgeman Downs Neighbourhood Plan. The only significant relevant variation from the current City Plan is the deletion in the draft of the road link/connectivity intentions within the MBDLP. All planners accepted that this appeared to be an oversight and was likely to be corrected when the final version of the new City Plan is adopted.

Principles of interpretation of Planning Schemes

It is helpful to revisit the principles relevant to the construction of a Planning Scheme enunciated by Britton SC DCJ in Westfield Management Ltd v Pine Rivers Shire Council and Anor[29]:-
[29](2004) QPELR 337 at [18].

(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 QdR 352 at 360; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 73, 75, 78; Harbug Investments Pty Ltd v Brisbane City Council (2000) QPELR 313 at 318.

(b) They should be construed as a whole (Luke v Maroochy Shire Council & Anor (2003) QPELR 447).

(c) They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v Maroochy Shire Council (1995) QPLR 368 at 370; Acts Interpretation Act1954 s.14A).

(d) In the light of the proscription against prohibiting development contained in IPA (s.6.1.2(3));

(e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degee v Brisbane City Council (1998) QPELR 287);

(f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 230);

(g) A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council (supra));

(h) Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;

(i) A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208 at 212).

Examination of issues in dispute

Having given a broad overview of the relevant provisions of City Plan, I turn now to the disputed issues.

A.Alleged conflict with City Plan

The disputed planning issues are conveniently summarised in the below Table copied from paragraph 6.1.1 of the Joint Planning Report[30] by reference to paragraphs of the Notice of Appeal. I shall follow that format.
[30]Exhibit 2(2) p 922.

GROUNDS FOR APPEAL	NOTICE OF APPEAL ITEMS
EMERGING COMMUNITY DEOs	6(a) (i) (ii) (iii) (iv) 6(b) (ii)
MCDOWALL / BRIDGEMAN DOWNS LOCAL PLAN	6(b) (i)
STRUCTURE PLANNING CODE	6(b) (x) & (xi)
RESIDENTIAL DEISGN – LOW DENSITY CHARACTER & LOW-MEDIUM DENSITY CODE	6(b) (iii)-(ix)
GENERALLY INAPPROPRIATE IMPACT ASSESSABLE REQUIREMENTS	6(c), 6(e), 6(f), 6(g)
NEED	7

Alleged conflict with Emerging Community DEOs[31]

[31]Exhibit 21, p 53.

The Appellants allege the proposed development will compromise or, in the alternative, conflict with DEOs 2, 5, 6 and 8 of the Emerging Community DEOs and the Intent of the Emerging Community Area. Those DEOs and Intent provide:

“4.1 Intent
The Emerging Community Area is generally suitable for urban purposes at some future time. These Areas have not been fully investigated and many contain pockets of land unsuitable for development because of scenic or environmental constraints. All land in this Area requires the preparation of a neighbourhood structure plan before development can occur.
Small Sites that do not adjoin developed areas remain undeveloped.
Interim uses that are incompatible with residential uses are not encouraged.
The general location of the Emerging Community Area throughout the City is indicated on Map B—Emerging Community Area. Reference should be made to the Scheme Maps to determine the exact Area classification of a parcel of land.
The planning scheme will be reviewed at regular intervals to reclassify developed Emerging Community Areas to the most appropriate Area.
“4.2Desired Environmental Outcomes
…
2. Land is developed in an orderly sequence, and in accordance with a neighbourhood structure plan and/or Local Plan.
…
5. Development is well planned and integrated with surrounding land uses, and is supported by local centres and basic community facilities.
6. Development does not impinge on existing or intended use of adjacent areas. Buffer areas are provided. Any interim uses do not prejudice future development.
…
8. Urban design promotes a sense of place and identity and community safety.”

Joint Planning Report

In the Joint Planning Report,[32] Mr Buckley, (Appellants), summarised his opinion in relation to this asserted compromise/conflict in these terms:-
[32]Exhibit 2(2) p 913 at p 924 para 6.2.10.

“1.Whilst there is no doubt that the area to the north of Darien Street will be developed, the provisions of the Emerging Community Area do not suggest an open invitation for higher density forms, nor for development to proceed without appropriate planning.
2.The most detailed planning guidance is provided by the Local Plan. No serious structure planning has occurred within the meaning of City Plan.
3.The form of housing for the Area as prescribed by the Local Plan is very clear.
4.The subject development is quite unlike what is intended, in terms of unit/housing yield, layout and use arrangement; in many ways it is maximising development potential with little acknowledgment of the direct guidance provided by the Local Plan.
5.There is simply no sensitivity evident in the layout and the final likely built form outcome.”

Response of Applicant’s and Council’s Planners re Emerging Community DEOs

In answer to Mr Buckley, the planners for the Applicant and Council, respectively Mr Kierpal and Mr Mulcahy, make the following points[33]:-
[33]Ibid paras 6.2.2-9.

(a) the proposal provides for development in an orderly sequence with a new road connection to provide access and services to the land to the north of the Site and infills the land between Beckett Road and the access to the parkland to the west;

(b) the Potential Development Area in the Local Plan in which the Site is located, together with the Site’s location, warrants higher densities due to the proximity to Beckett Road, access by a traffic light controlled intersection and the bus route/bus stop very close nearby in Beckett Road;

(c) the Site is generally cleared land with no vegetation of any significance which would constrain development of the land;

(d) one of the strategic components for Residential Neighbourhoods in City Plan[34] requires sufficient housing choice to enable residents to remain in their neighbourhood through all stages of their life if they wish, requiring a variety of housing types and tenures, to enable access to housing for a wide range of income levels. This is also reflected in the Intent of the Low Density Residential Area, the area allocation on the south side of Darien Street as well as the applicable Residential Design Low Density, Character and Low-medium Density Code[35] which provides for multi-unit dwellings in Low Density Residential Areas generally at a plot ration of 30 per cent with the proviso that the building bulk and scale must be consistent with the Low Density nature of the locality;
[34]Exhibit 21, p 21, City Plan, Chapter 2, p 17, para 4.2.2.
[35]Ibid, p 94.

(e) whereas the housing south of the Site was developed in the last 10 to 25 years with predominantly detached housing, lot sizes in that period reduced in size due to a variety of considerations including housing choice, affordability, lifestyle and infrastructure utilisation. The present proposal for multi-unit dwellings is consistent with Emerging Community Area DEO 1, which speaks of a range of housing types and opportunities to meet different needs, lifestyle choices and housing market diversity;

(f) in conformity with DEO 5, the development is well planned and integrated with surrounding land uses manifested by the provision of the road connection to the north and the addressing of the Darien Street frontage with residential buildings of a size and bulk consistent with the Low Density Residential character of the locality;

(g) in conformity with DEO 6, the development facilitates the development of the land to the north and does not impinge on the use of adjacent areas to the south or otherwise. Being a two level townhouse development, it is compatible and an acceptable residential use in a Low Density Residential area. It does not require a buffer and is not an interim use;

(h) as to DEO 8, this is met as the proposed building design, overall promotes a sense of place and identity at the intersection of Darien Street and will have no adverse effect on the community safety. The dwellings address Darien Street and will provide passive surveillance of it and increase pedestrian movement on the footpath. The bulk and scale is consistent with the Low Residential area.

(i) as to the Intent for the Emerging Community Area, this also is met as the neighbourhood structure plan is effectively prepared to the required degree by the adoption of the Local Plan. The specific local structure in map A of the Local Plan identifying development areas, environmental and scenic constraints, open space, park network and additional neighbourhood access roads was considered in the application process and reflected in the provision of the road connection to facilitate development of land to the north of the Site;

(j) nothing would be gained by the preparation of the former local structure plan consistent with paragraph 5 of the Structure Planning Code[36] which provides that on less complex Sites where a preliminary approval is not warranted, an application that contains sufficient detail to fully address the requirements of the Code will be considered to constitute a Structure Plan;

[36]Exhibit 21, p 107.

Is there a conflict with Emerging Community DEOs

The meaning of conflict was considered by Fryberg J in Woolworths Ltd v Maryborough City Council and Anor[37] where his Honour said:

“[23]‘Conflict’ in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike ‘compromise’ in para (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not… conflict with the Planning Scheme’ requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.”

[37](2005) QPEC 262.

I prefer the evidence of Mr Kierpal and Mr Mulcahy to that of Mr Buckley on this issue. Although not the first development of this type in the area, it seems to me that, whilst different in style from most other housing in the area south of Darien Street, nevertheless it presents as a housing type contemplated by the Scheme and sympathetic to and harmonious with the area. There is no doubt the Scheme contemplates appropriate multi unit development. There are existing residences in the locality which are larger than the four unit modules in the subject proposal as can be seen from figure 6 of Mr Chenoweth’s report.[38]
[38]Exhibit 16.

I do not agree with Mr Buckley’s suggestions that the proposal represents an unreasonable exploitation of the Scheme provisions for high density development in that it is being treated as an open invitation, as he calls it, for high density development, unmindful of appropriate planning requirements. The proposal manifests careful planning as the application attests to. I also reject Mr Buckley’s view that the proposal exhibits a lack of sensitivity in its layout and built form. Minds may differ on the end product but there can be no doubt that careful thought has been directed to that product. True it is that the yield of 33.7% exceeds the Low Density Residential Area requirement of 30% but that does not change what I see to be a consistency with the bulk and scale of nearby dwellings in the area. As to the absence of a formal structure plan I shall shortly deal with that issue but its absence does not change my view.

The proposed road provides integration with land to the north. The landscaping on boundaries generally but particularly along the open style fence to Darien Street will, in time, provide acceptable integration with the surrounds. I shall deal further with the question of the absence of a Structure Plan, type of housing contemplated by the Local Plan and landscaping shortly.

The Appellants say that the failure of the Applicant to provide a photo montage or architectural elevations showing the presentation to Darien Street together with landscaping is a defect in their case and they say the architectural perspective[39] is incomplete as it does not show the proposed landscaping. Whilst a photo montage and architectural drawings may have added to the evidence, I am satisfied that the evidence is sufficient to form an appreciation of the finished product. The proposal does not conflict with the Emerging Community DEOs.
[39]Exhibit 16, p 22.

Alleged conflict with McDowall/Bridgman Downs Local Plan (MBDLP)

The Appellants assert the proposal compromises or conflicts with s 2.1 of the MBDLP which, relevantly, provides:-[40]

·   “Development must be in accordance with Map A – McDowall/Bridgeman Downs North;
·   Proposals must include a mix of larger lot sizes, retain existing vegetation and minimise development and vegetated or other scenically important areas.
·   Where higher densities are proposed they must be located in the clear parts of the area and must comprise clusters of development surrounded by a high proportion of landscaping and open space.”

[40]Ibid, p 80, City Plan, Chapter 4, p 337.

The conflict is said to arise because the development does not include a mix of larger lot sizes, does not retain existing vegetation, does not minimise development in vegetated areas, is not located in the clear part of the area and does not comprise clusters of development surrounded by a high proportion of landscaping and open space.

Mr Buckley’s Opinion in Joint Report

In the Joint Report Mr Buckley focuses on need for a mix of larger lot sizes, the retention of vegetation, the minimisation of development in vegetated or other scenically important areas and the necessity for clusters of development surrounded by a high proportion of landscaping and open space. In his view the development is reflective of two walls of development with no clusters and little green space surrounding the clusters relied upon. He says the green space on the layout is only on its edges. As to the figure of 46% average for landscaping relied upon by the Applicant it must be expected to include the area of the new road in the Site given the approved plans show that, conservatively, at least two thirds of the Site is building or hard stand driveways. Whilst Mr Buckley acknowledges some high density development may be supportable in the subject area the form of the development proposed is different to that of detached housing in other parts and in other Areas of City Plan.

In his individual report[41] he expands on this and says that, as the area is an outer suburb, the intended development form is quite different to an older suburb or one adjoining a centre or on an important public transport network. Those areas are featured in Local Plans for older and near centre suburbs. He gives the examples of the Everton Park Local Plan promoting mixed use focussed on the Centre and the Lutwyche Road Corridor Neighbourhood Plan which promotes higher densities based on rail and bus infrastructure and proximity to a centre.
[41]Exhibit 15.

Response of Mr Keirpal and Mr Mulcahy re Local Plan

In response to Mr Buckley, Messrs Mulcahy and Kierpal make the following points. As to the requirement for a mix of larger lot sizes, the proposal forms part of the immediate catchment area and meets this requirement. Mr Kierpal says it is appropriate to view the proposal in the context of surrounding allotments and not in isolation. That includes lots to the west of Beckett Road to the south up to Saturn Crescent, lots to the east and south east along Peterson and Parkview Place and park land adjoining those respective streets, together with the lots to the north west adjoining Darien Street.

Mr Kierpal conducted a comparison of 201 lots within the subject catchment identifying the community title lots (175m² to 278m²) and standard sized allotments (450m² to in excess of 1,200m²) all within the Low Density Residential classification.[42]
[42]Exhibit 21, p 926.

The results were:
Lot size  No. of Lots
Community title lots (175-278m²)  17
400-550m²34
551-700m²60
701-90m²67
901 m² plus   23
  Total  201

Mr Mulcahy accepts Mr Kierpal’s lot analysis summary and makes the point that the reconfiguration component of the application does include larger lot sizes proposed for multi-unit dwelling use and the above analysis shows that the lots in the local area are principally larger lot sizes. He says that, given the strategic intent of City Plan and of the Proposed Development Areas for local plans in outer suburbs that there be a mix of housing types, styles and densities the provision of some multi-unit dwellings is appropriate to facilitate that intended mix and choice;

They both agree the Site does not contain vegetation of any significance and the proposed development will include landscaping in accordance with the landscape concept plan of Mr Jeremy Ferrier, Landscape architect.[43]
[43]Exhibit 2(1), p 391.

As for failure to minimise development in vegetated areas, the land overall, in the local context, could not be regarded as a vegetated area as is evidenced by the aerial photographs in the joint report. [44] Further the Site is generally cleared land which does not contain suitable vegetation for retention so that it could not be said that the development is not located in the cleared part of the Site.
[44]Exhibit 2(2), p 935.

As to the requirement for clusters of development surrounded by a high proportion of landscaping and open space, the design comprises 10 separate buildings on two lots separated by a new road with landscaping areas predominantly orientated to the external boundaries. The percentage of open space and landscaping will be approximately 46% orientated to the public domain as illustrated by the Ferrier Landscape Concept Plan. Private open spaces will exceed the minimum requirement of 35m² per unit to between 47m² and in excess of 150m². The court yard areas are predominantly orientated north/south for favourable solar orientation.

In his individual report[45] Mr Buckley is, as above stated, clearly not impressed with the 46% open space and landscaping argument, making the points that the communal open space areas and the driveway and car parking and manoeuvring space are nothing more than landscaping beds which are disjointed and on the whole individually very small. Further, he says, they will be adversely affected by pits for power, services and NBN so that the utility will be significantly compromised. In his view the graphic of the proposal highlights its failure to attribute to the requirement of the Local Plan of clusters of development surrounded by a high proportion of landscaping and open space.
[45]Exhibit 15, para 24, Buckley Individual Report.

Conclusion re alleged conflict with Local Plan

Again I prefer the evidence of Mr Kierpal and Mr Mulcahy to that of Mr Buckley, though I do not agree with Mr Kierpal’s view that reference to a mix of lot sizes entitles one to look beyond the boundaries of the proposed site. Even allowing for Schemes to be read broadly and not pedantically, the Scheme words here are clear that the mix of lot sizes must be included in the proposal. In any event, I am satisfied that the requirement for a mix of large lots is met by the subdivision of the subject land to the two lots proposed, 2107m² and 6341m² respectively. I am also satisfied that the land is cleared of any vegetation suitable for retention and that the proposed development will take place on the cleared part of the Site.

The proposed development also satisfies the requirements for clusters of development in the MBDLP. The Sixth Edition of The Shorter Oxford English Dictionary defines a cluster as a compact group of other similar things. The verb cluster is defined as to arrange in a cluster, group closely.

Doubtless minds may differ on what constitutes a more attractive cluster but competing views in that regard will not detract from the plain meaning of that word. The 10 buildings the subject of this proposal constitute a cluster of development as foreshadowed by the Local Plan.

Finally I am satisfied, having regard to condition 16 of the approval – Landscape Architecture and Open Space Planning,[46] when read with the Landscape Concept Plan of Mr Jeremy Ferrier,[47] that the landscaping proposed will be adequate to buffer the built form of the development from its surrounds. Of course, as with any development the raw form of the built form will be visible until the landscaping rose to the appropriate stage of maturity.
[46]Exhibit 2(1), p 328.
[47]Ibid, p 392.

Alleged conflict with Structure Planning Code

The Appellants further assert conflict with the Purpose of the Structure Planning Code[48] in that:-
[48]Exhibit 21, p 106, City Plan, ch 5, p 217.

(a) it does not ensure that the Site and those Sites to its north will be developed in an orderly and sequential fashion and have necessary infrastructure and services provided in an efficient and timely manner;

(b) it does not ensure the creation of sustainable communities including the co-location of compatible land uses;

(c) it is a sporadic and out of sequence sub-division;

(d) it creates uncertainty for landowners and residents as to the type and location of future land uses and transport infrastructure; and

(e) is of an intensity that is inappropriate to the on-Site and local development constraints.

Absence of Structure Plan

Further, it is said, there is a conflict with the Intent of this Code because a Structure Plan did not accompany the Development Application given that paragraph 5.1 relevantly provides:-

“A Structure Plan will be required to accompany all impact assessable applications including applications for subdivision in the Emerging Community Area …”

Appellants’ Planner’s opinion re absence of Structure Plan

Mr Buckley believes a Structure Plan should have been included with the application, firstly because the present proposal is completely different from the previous approved application for the Site. Secondly, if the Code was applied by the Council, there should have been consultation and considerations of a range of important matters such as traffic, visual amenity, character and consideration of other options for the development of this Site. In other words the Local Plan including a Structure Plan should have guided the form of planning, but instead the application seeks a new direction not contemplated in the Local Plan and not displaying the sensitivity needed at this particular location. To Mr Buckley’s mind, relationships between buildings’ expected development form and density are all relevant as well as the question of height, and he points to the fact that between Beckett Road and the new proposed roundabout there are only three breaks in the proposed development form over a distance of approximately 100 metres. He says this has no comparison to surrounding developments.

Applicants’ Planners’ response re alleged conflict with Structure Planning Code

As to the alleged conflicts with the Purpose of the Code, Mr Kierpal says:

(a) grounds (a) and (d) above outlined are satisfied as the proposal has been designed in consideration of the broad context of the area and will be undertaken in an efficient, orderly and sequential fashion enabling integration with the surrounding community, existing community uses, service and infrastructure networks and the road network within the area. The proposal also provide for the sequential development of the allotments to the north. Mr Mulcahy agrees;

(b) the Site is in the northwest corner of the Beckett Road and Darien Street intersection which is signalised with the district sports facility to the west, existing housing development to the south and to the north further lots identified for potential development under the Local Plan. The Site is devoid of any significant vegetation and has a gentle grade across the allotment to facilitate a seamless interface with Darien Street to the south and potential development lots to the north. Consistent with section 6.1.3 of the Code it is within an emerging community area and is land used primarily for residential purposes with good access to public transport, local parks, schools, shops and community facilities, allowing integration with the community and service/infrastructure networks;

(c) the proposal satisfies the Code’s purpose by facilitating the co‑location of compatible land uses and providing certainty to the type of future and location of land uses and ensuring the scale and density can be catered for by current or future infrastructure requirements; and

(d) the proposed two storey residential townhouse development will provide a housing product and choice consistently accepted in the area and surrounding suburbs which would integrate with the existing conventional detached housing to the south of Darien Street.

Response to absence of Structure Plan

As to the alleged failure to provide a Structure Plan, Mr Kierpal says that, in essence, the Structure Plan for this current application was predetermined by the work done for the application previously approved by the Council in relation to the subject Site. That previous application included a new road and roundabout opposite Palmetto Place facilitating access to allotments in the Potential Development Area under the Local Plan including map A defining the critical development aspects of the area and nominating the neighbourhood access route and the existing road networks. In Mr Kierpal’s view, any Structure Plan which may have been submitted with the application would essentially retain the same road network regardless of the land uses proposed in the Plan. In other words, the only effect of such a plan would have been to show a different mix of multiple dwellings, traditional, subdivisional allotments still likely to be achieved through subsequent development applications in relation to land to the north of the Site.

On the issue of the provision of a Structure Plan, Mr Mulcahy expressed the view in the joint report that it should have been included in the application if only to consolidate the development considerations and local constraints and opportunities in a single document. But, in any event, he says the application documentation for the current proposal considers all relevant factors including the Local Plan, road and infrastructure connection to the adjoining land to the north and interface with Beckett Road so that no benefit would have followed by the inclusion of a Structure Plan as part of the application. He repeats and relies on the Code provision relaxing the requirement for a Structure Plan on this complex Site.

Discussion re Structure Plan

Whilst s 5.1 of the Structure Planning Code[49] requires a structure plan to accompany all impact assessable applications including those for subdivision in the Emerging Community Area the preceding paragraph 5 – Planning Framework – provides:

“Council may adopt a Structure Plan by:
·   Preparing, on its own intuitive or in partnership with others, a Structure Plan that is incorporated into the Plan, or
·   Granting a preliminary approval to a development application that incorporates as Structure Plan, or
·   On less complex Sites where a preliminary approval is not warranted an application that contains sufficient details or fully address the requirements of this Code will be considered to constitute a Structure Plan.”

[49]Exhibit 21, p 207.

It can be seen then that an application will be deemed to constitute a Structure Plan where:

(a) The Site involved is a less complex one;

(b) Preliminary approval is not warranted; and

(c) The application contains sufficient detail to fully address requirements of the Code.

Again I accept the evidence of Mr Kierpal and Mr Mulcahy as to the sufficiency of the application resulting in it being a deemed structure plan. No serious particularised challenge was made to their evidence that the matters ordinarily to be expected in a Structure Plan were not contained in the documentation for the prior approval and the present application. I accept that the preparation of a formal Structure Plan was unnecessary and that the application constitutes a Structure Plan within the Scheme. I also prefer their evidence on the other issues raised in relation to the Structure Code. Mr Buckley says the proposal leads in a new direction not contemplated by the Local Plan. This is consistent with his earlier opinion as to the applicant seeking to treat the Scheme contemplation of identity development as an open invitation. I do not accept this reading of the proposal as to that or any other of his concerns expressed.

Conclusion re Structure Code

I find no conflict with the Structure Code

Alleged conflict with Residential Design – Low Density, Character & Low-Medium Density Code

Purpose

The Appellants say the proposed development conflicts with the Purpose of this Code because:-

· The development is not compatible in scale and design with neighbouring houses, in particular, the neighbouring houses in the Low Density Residential Zone in Darien Street to the south of the land; and

· There is no evidence that the development does not impact adversely on landscape or ecological values.

The Purpose of this Code is, relevantly, expressed in these terms:

“As to the Areas to which this Code applies will contain a mix of (sic) houses and multi-unit development, the purpose of this Code is to effectively manage impacts of the new development on neighbourhoods while:-
·   Ensuring new development is compatible in scale and design of the neighbouring houses;
·   …;
·   …;
·   encouraging multi-unit development that provides a pleasant living environment for its occupants;
·   …; and
·   ensure that multi-unit development does not impact adversely on landscape or ecological values.”

Performance Criteria of Character & Low-Medium Density Code

The Appellants also allege conflict with certain performance criteria in ss 4.1, 4.3 and 5 of the Code, namely:-

o Section 4.1 – Performance Criteria

§ P1 – Building size and bulk must be consistent with the low density nature of the locality

§ P2 – Larger developments must integrate with the neighbourhood and form part of the local street network

o Section 4.3 – Performance Criteria

§ P1 – Development size and bulk must be consistent with the low to medium density of the locality

o Section 5 – Performance Criteria

§ Building design and setting

§ P1 – The appearance of building bulk must be reduced by design elements

§ P2 – The development must be orientated to the street and facilitate casual surveillance of the street

· Note: North or north-east facing windows, balconies or decks may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code where this will significantly improve passive solar design

§ Car accommodation and vehicle access

§ P16 – Vehicle access and parking must be safe and convenient for residents, visitors and service providers

· Resident and visitor parking provision must be provided according to:

o the number, size and type of dwellings proposed

o the availability and acceptability of kerbside parking adjacent to the Site

o local traffic or parking management

o the likely preference of the occupier or target market

· Note: Resident parking provision may be reduced from the rate specified in the Acceptable Solution where public transport is available within a reasonable walking distance or where low demand is indicated[50]

[50]Exhibit 21, pp 94-99.

As to Performance Criteria P1 of s 4.1 the allegation is that there is a conflict because the building size and bulk is not consistent with the low-density nature of the locality in particular:-

· Gross Floor Area is 0.33.7 times the Site area; and

· part of the building height exceeds 8.5 m above ground level.

This was not pursued and the approval clearly requires non exceedence of 8.5 metres.[51]

[51]Exhibit 3, page 326, condition 6.

As to Performance Criteria P2 of s 4.1 it is said the conflict arises because the development does not integrate with the neighbourhood and form part of the local street network in particular it:-

· Does not include any houses;

· is not connected to or part of the neighbourhood and forms a separate semi-private enclave; and

· is not integrated with the existing or proposed local street network.

As to Performance Criteria P1 of s 4.3 it is said the development conflicts because its size and bulk is not consistent with low to medium density, nature and amenity of the locality.

As to Performance Criteria in s 5 the Appellants say the conflicts arise this way:-

1. Performance Criteria P1 – no real effort has been made to reduce the appearance of the building’s bulk by design elements.

2. Performance Criteria P2 – the development is not orientated towards the street.

3. Performance Criteria P16 – the vehicle access and parking is not safe and convenient for residents, visitors and service providers.

Appellants’ Planner’s opinion re Residential Design – Low Density Character and Low-Medium Density Code

Mr Buckley does not seem to attribute much importance to this Code. In the Joint Report[52] he acknowledges that, whilst the above grounds are in the Notice of Appeal, he does not believe this Code is determinative of the merits of the application. In his view the form of development anticipated by the Local Plan favours an outcome quite different to a similar styled development in land to which these (types of) codes ordinarily apply so that relative comparisons are of minor assistance.

Response of Applicants’ Planners re Residential Design – Low Density, Character & Low-Medium Density Code

[52]Exhibit 2(2), p 930, para 6.5.1.

Mr Kierpal agrees with Mr Buckley that this Code is not determinative of the merits of the application but says it is the primary Code against which the application is to be assessed so that compliance with it is a key aspect of the proposal suitability. Mr Mulcahy accepts also that the Code is not determinative but is relevant. As to the alleged conflict with the Purpose of the Code Mr Kierpal considers the proposal satisfies that purpose as to scale design and impacts associated with landscape or ecological values. He considers that the proposed two storey residential townhouse development provides a compatible housing product which is accepted consistently in a Low Density Residential area, surrounding neighbourhoods and suburbs and intergrades with conventional housing. Mr Mulcahy agrees with him.

As to Performance Criteria P1 and P2 of Section 4.1 of the Code Mr Kierpal acknowledges that the gross floor area of the proposed development is 33.7% which is 3.7% in excess of the 30% referred to in Acceptable Solution A1.1,[53] but says that the Code does not specify and allow for GFA for units located within the Emerging Community classification. Hence the GFA exceedence does not breach any specified limits in the Code. Having said that however Mr Kierpal and Mr Mulcahy both acknowledge that whilst the land is within the Emerging Community designation the prevailing Area classification for established urban development in the area is Low Density Residential. Nevertheless they say, despite the 3.7% exceedance in GFA, the proposal still meets Performance Criteria P1 that the building size and bulk will be consistent with the Low Density nature of the locality. In that regard Acceptable Solutions A1.2 and A1.3 are met in that building height will not exceed 8.5 metres or two storeys and the minimum Site area of 3000m² and minimum frontage of 40 metres will be met.
[53]Exhibit 21, p 94, City Plan, ch 5, p 166.

As to Section 5.0 P1 Mr Kierpal considers the proposal demonstrates compliance with Acceptable Solution A1.1 given that the design ensures the reduction in appearance of building bulk with a variety of elements achieved by articulated forms of recesses and projections thus varying the building plane of each of the multiple dwellings. That articulation is achieved through the use of materials, overhangs and other specified aesthetic elements.

As to the reduction of building bulk at the proposed roundabout intersection this has been achieved by separating units 6 and 23 as detached dwellings at the focal point of the access road. Further, utilisation of roof forms to encourage angular panes creating separation from vertical and horizontal elements and the use of window and doors to separate material form further reducing building bulk.

As to Section 5 P2 Mr Kierpal says that the proposal complies with it given that buildings A, H, G and F all address Darien Street and provide passive surveillance to that street. The townhouses are designed to have the kitchen, living and alfresco areas orientated to the courtyards which interface with Darien Street, thus facilitating that casual observance.

There is one aspect raised by Mr Kierpal where he acknowledges that Acceptable Solution A13.1 is not met by units 1 and 8 in that their setback from the side boundary of 1.95m falls short of the requirement of 2m in circumstances, which obtain here, where the boundary walls are in excess of 4.5m. Having said that, Mr Kierpal considers that this 5cm variation is unlikely to have any impact on the residential amenity of the area given that there is a driveway to the parkland at the rear along the subject boundary. The Appellants do not rely on this as a ground of conflict.

Conclusion re alleged breach of Character and Low-Medium Density Code

I accept the evidence of Mr Kierpal and Mr Mulcahy. The only possible conflict with this Code is the setback noncompliance raised by Mr Kierpal relating to the 5cm short fall in the setback from the side boundary of units one and eight as outlined above. The Performance Criteria on P13 to which Acceptable Solution A13.1 relates is in these terms[54]:-

“P13 Development must not significantly reduce daylight to open space inhabitable rooms in adjacent development.
Boundary walls must be limited in dimensions and openings, to minimise the impact on neighbours.”

[54]Exhibit 21, p 98.

This is not an issue raised in the Appeal hence it is reasonable to infer that P13 has complied with notwithstanding the minor noncompliance with A13.1. It is trite to say that Acceptable Solutions are not the only way to satisfy Performance Criteria.

I am satisfied that no conflict arises as a result of this irregularity but if I am wrong I regard it as a very minor one with no impact at all on the surrounding area or any of its occupants.

Generally Inappropriate Development

The following provisions of City Plan are relevant to the Appellants’ alleged conflict:

“2.2 General assessment procedures[55]
[55]Ibid, p 36.

2.5.2 Generally inappropriate assessable development

…
In assessing generally inappropriate impact assessable development, or generally inappropriate impact assessable development for which there is no specific Code, the proposal will need to demonstrate that:

· the character, location, sitting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with the reasonable expectations and DEOs for the Area in which the land is classified

· the proposal has a positive impact on the landscape, scenic quality and streetscape of the locality

· the proposal does not detract from the appearance, environment or amenity of the locality. These effects may relate to issues such as hours of operation, display of goods or release of any contaminant

· the proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of:

- on-Site and on-street parking

- number or type of vehicle movements

- manner of access to the Site

· the capacity of the road system in the locality is suitable for the proposed activity

· the Site has a reasonable level of accessibility by all modes of transport, including pedestrian, cyclist, public transport and private vehicular access, that is appropriate to the proposed activity”[56]

“4 Emerging community area[57]
[56]Ibid, p 36.
[57]Ibid, p 53.

Relevant Codes[58]
[58]Ibid, p 56.

Impact Assessment
Generally appropriate
1… Where in accordance with the structure plan that has been adopted in accordance with the Structure Planning Code (unless the level of assessment has been changed by the adopted or approved Structure Plan):
…
15. Multi-unit Dwelling	Residential Codes
Generally inappropriate
1. …
2. …	Subdivision Code and Structure
3. Reconfiguring a lot where any resulting lot is less than 10ha where no structure plan has been approved	Planning Code
4. Any other material change of use	Structure Planning Code

The Appellants firstly allege that the proposed reconfiguration of the land from one lot into two lots and a new road renders it generally inappropriate development. This is accepted by the Applicant and Council given it involves the reconfiguring of a lot within paragraph 3 of the above box where no structure plan has been approved.

The Appellants further allege that the proposal is generally inappropriate development in the Emerging Community Area because:

(a) it will create a traffic hazard in Darien Street;

(b) the scale, size, bulk and density of the development is out of character with the overwhelming character of existing development in the locality, being single detached dwellings on either conventional sized or larger allotments, resulting in adverse impacts on the existing and future amenity of the locality; and

(c) the design of the development does not address Darien Road contrary to the style and nature of development in the locality and the car parking is inadequate and poorly designed.

Appellants’ Planner’s opinion re generally inappropriate development

Mr Buckley considers that the generally inappropriate status of the proposal ought to be determinative of the final assessment of the proposal when one has regard to traffic, the location, siting and external appearance of the proposal, conflict with the DEOs and reasonable expectations of the Area within which the proposal is situated, streetscape and amenity.

Applicant’s and Council’s Planners’ Response to generally Inappropriate Development Allegations

As previously stated Mr Kierpal considers that, in terms of height, bulk and scale the proposed townhouses are generally consistent with the surrounding Low Density Residential Area and complimentary in scale with the surrounding detached houses and town houses. For those reasons he considers the proposed multiple dwellings are consistent with the Generally Inappropriate Impact Assessment Criteria outlined above.

Mr Mulcahy agrees with Mr Kierpal making the point that the proposal provides a logical connection to the Potential Development Area Land to the north of the Site. In his view the proposal is of a scale, size, bulk and density compatible with the low density nature of the locality on the basis of the design changes he recommends as outlined above. Mr Kierpal agrees.

As to the Appellants’ concern that the development will not address the street in the style and nature of other developments in the locality, Mr Mulcahy agrees with the previously expressed view that it does address Darien Street with a patio, kitchen and bedroom windows.

Conclusion re generally inappropriate development

Again I accept the evidence of Mr Keirpan and Mr Mulcahy. There is no conflict with the scheme in this regard.

Visual Amenity and Character – Report A Chenoweth, December 2013

Mr Chenoweth, a visual amenity and character expert, provided a report[59] on behalf of the Appellants. Without seeking to repeat his every point, he made the following observations:-
[59]Exhibit 16.

(a) Given that the MBDLP does not specify an allowable residential density or range of allotment sizes for development within Potential Development Areas in the Rural Area, that Local Plan complements the general requirements for Local Plans for Outer Suburbs (LPOS).[60] Given the requirement that proposals in the subject area must include a mix of larger lot sizes[61] which are not defined, large lot sizes refers to the upper end of the size range in LPOS,[62] namely 5 to 12 dwellings per hectare or up to 16 dwellings per hectare where the Local Plan so provides. This is equivalent to lot sizes from 450 to 1,000m², possibly up to 1,500m².[63] Hence the Local Plan encourages the remaining undeveloped parts of Bridgeman Downs to be developed mainly at low residential densities with a mixture of allotment sizes ranging from 450 to 1,000m², that is, detached houses on various sized allotments. Acknowledging that the Local Plan also contemplates higher density development, any such development must be in cleared parts of the area and comprise clusters of development, surrounded by a high proportion of landscaping and open space;
[60]Exhibit 21, p 75-77.
[61]Ibid, p 80, para 2.1.
[62]Ibid, p 77.
[63]I do not agree with these calculations. According to Instant Metric Reckoner (Peter W Fyfe, Summit Books, 2^nd edition, 1976), a hectare is the equivalent of 10,000m². Dividing dwelling numbers 5, 12 and 16 into that figure, one arrives at 625m², 833m² and 2,000m² as the equivalent of Mr Chenowith’s 450m², 1,000m² and 1,500m².

(b) This provides a guide to the intended character of those remaining undeveloped areas of Bridgeman Downs in that a denser development such as townhouses can only satisfy this part of the Local Plan on Sites large enough to have a cluster of townhouses surrounded by a substantial proportion of the Site dedicated to open space. Further the intention is that the overall density of residential dwellings is likely to be similar to that of a detached dwelling estate with a mixture of densities because any higher densities will be surrounded by open space to offset the higher density;

(c) “High proportion” in relation to landscaping and open space means a higher proportion than that for a detached residential allotment of five to 16 dwellings per hectare (normally 50% on average including all private residential gardens and yards);

(d) If a proposed cluster of medium density development that incorporates approximately 25% landscaped open space internally (excluding paved roads and driveways), it still needs to be surrounded by additional landscaping and open space. As to the built form, as seen from an adjacent street, the increased density would be offset by wider setbacks and denser vegetation, having the effect of screening or softening the streetscape interface with the existing character of the surrounding area;

(e) The proposal involves almost double the density of residential development encouraged by the Local Plan as outlined above, and the resulting density would not be hidden or surrounded by landscaping and open space but rather would be in full view of all those who live and drive along Darien Street. The proposed townhouses, in a line along Darien Street, would have insufficient setback to allow any larger trees or the provision of effective landscaping to surround or soften the higher density development;

(f) A sensitive approach to new development on the Site would be detached house developments allowing a transition to higher densities further north, if appropriate. The uniformity, scale and design of the proposed development will contrast unsympathetically with the character of existing houses in the area, presenting as a barracks-like line of uniform buildings. As the Site is near the gateway to the north-western part of Bridgeman Downs and on a slight hill, it is more suited to a transitional form of development with detached houses varying in design, fencing and landscaping fronting Darien Street and any higher densities on Sites further north meeting the requirement for clustering.

As a result, Mr Chenoweth believes the proposed development achieves neither the intentions of the Local Plan with respect to residential development density nor the Residential Design – Low Density, Character and Low-medium Density Code and should be refused.

Cross-examination of Mr Chenoweth

Under cross-examination Mr Chenoweth agreed:

(a) That the impression one gets of the homes in the estate on the southern side of Darien Street in the Palmetto Place area is that they are large houses occupying a significant part of the allotments upon which they are constructed;[64]
[64]This is demonstrated very well by Exhibit 23 showing approximate building footprints of buildings south and west of the site in Darien Street. T3.51.15.

(b) The fence along the Darien Street boundary, rather than being solid, is an open-style fence with transparent pool type sections to allow for casual surveillance of the street thus increasing public safety and turning the development to face the street.[65] The landscaping along that boundary provides for rounded canopy trees providing softening of the building forms along Darien Street and to shade each of the courtyards. A mix of shrubs, clumping plants and ground cover as proposed will provide filtered views to the Darien Street frontage and that the Council condition of approval provided for a minimum two metre landscape strip around the Site boundary;[66]
[65]T3.54.4-10.
[66]T3.53.45-46; T3.54.1.

(c) As to landscaping along boundaries, the landscaping plan provides for the planting of Columnar trees at three metre intervals where possible, being upright trees like a Cyprus, some Lilly Pillies but not a spreading shade tree such as a Poinsettia or Poinciana.[67]
[67]T3.52.15-37.

(d) That the proposed public Open Space provided for in the proposal is 2453m², more than 212% of the requirements of the relevant code;[68]
[68]T3.56.33.

(e) The statement in his report that the proposal involves almost double the density of residential development encouraged by the Local Plan is based on an incorrect calculation in that he excluded the proposed roadway when the scheme[69] expressly required it to be included.[70] As a result his calculation of 37 dwellings per hectare for the proposal should have been 35 dwelling per hectare;
[69]Exhibit 21, p 77.
[70]T3.58.7 – 18.

(f) The Planning Scheme contemplates town houses or multiple dwellings in the Emerging Community Area with a yield in the Low Density Residential Area of 25 multiple unit dwellings or single unit dwellings per hectare with a contemplation of up to 40 dwellings per hectare;[71]

(g) The 17 unit multi unit development Fairview is 180 metres to the west of the Site and has a density of 31 units per hectare;[72]

(h) As to his statement that there would be insufficient setback on the Darien Street frontage to allow any larger trees or provide effective landscape to surround or soften the high density. The amended plans for the proposal[73] shows setbacks varying from the smallest of 6.151 metres for unit 29 to 9.365 metres for unit 24.[74] He agreed 6 metres is the minimum setback requirement under the Scheme but did not know the equivalent for multiple dwellings.

[71]T3.58.20-46

[72]T3.59.5-15.

[73]Exhibit 6.

[74]T3.59.20-44.

Conclusion re visual amenity and character

In the result I am satisfied that the proposal will have no adverse visual amenity or character impact upon the area.

I do not accept Mr Chenoweth’s formulaic approach to the interpretation of the Scheme in relation to the meaning of the term “larger lot sizes” in limiting densities to between five and twelve (and possibly sixteen) dwellings per hectare. Apart from that, as I have footnoted above I do not agree with his calculations on lot sizes. But in any event Mr Chenoweth accepted that for a multi-unit development in a residential area 40 dwellings per hectare will be suitable in appropriate circumstances. His preference is for higher density multi-unit developments to be on larger blocks containing detached dwellings of 5 to 16 per hectare in density because, he says, on the larger lots the additional space will allow the higher density to be surrounded by open space. But he accepts that up to 40 dwellings per hectare is contemplated in the Scheme, in excess of the 35 dwellings per hectare proposed.

B – Traffic

Three experts gave evidence on the traffic issues, Mr Viney (Appellants), Mr Beard (Council) and Mr Holland (Applicant). They provided a joint report and individual reports.

Joint Traffic Report[75]

[75]Exhibit 2(2), p 907.

It is common ground amongst the experts that Darien Street is classified as a Neighbourhood Access street in Council’s road hierarchy. Such a street, which is not expected to be used as a bus route, has a carriageway width requirement of 7.5m. If it is to be used as a bus route, it must have a 11m width and provision for parking on each side of the road. Council’s road hierarchy overlay does not distinguish between these two scenarios for Darien Street which is generally constructed to have an 11m wide carriageway between Beckett Road and Park View Place after which it becomes a 7.5 m wide street.[76]
[76]See UBD map, Exhibit 3(1), p 278 for orientation.

It is also common ground that the Transport and Traffic Facilities Planning Scheme Policy recommends that the environmental capacity of a neighbourhood access – Bus Route Street – is 3,000 vehicles per day maximum whereas for a non bus route street 750 to 3,000 Vehicles per day. Darien Street currently provides the sole point of access to an existing residential catchment of about 320 dwellings and the sporting fields to the west of the Site. Based on the standard detached residential dwelling traffic generation rate of 10 vehicles per day per lot it theoretically carries in excess of 3,000 vehicles per day. As will be seen later a traffic count commissioned by Mr Holland places the figure at 2,324 vehicles per day.

Finally as to agreed matters, there is a large undeveloped parcel of land within the Darien Street catchment which is planned by Council as an easterly extension of Wendon Way Road link with Canopus Street upon development of that land in the future. That will provide a second point of access to/from the Darien Street catchment and significantly reduce traffic loadings on Darien Street.

Mr Viney’s (Appellants) opinion – Joint Traffic Report

Mr Viney says the Site should not be permitted to be developed more intensely than for detached residential dwelling until the abovementioned Wendon Way access link is completed. He said that whilst some Authorities accept up to 5,000 vehicles per day traffic in a residential street that permits direct vehicular access to/from abutting property, the most commonly recommended range is 2,000 to 3,000 vehicles per day. This is normally referred to as the environmental capacity. In Mr Viney’s view high traffic flows in residential streets reduce the level of safety for residents, reduce residential amenity resulting from noise and other impacts of increased vehicle usage making it difficult for residents to enter the traffic stream or cross the road.

As to the above mentioned Council policy of 3,000 vehicles per day for a bus route designated street, Mr Viney says that Darien Street is close to that figure now and it is uncertain as to when the future link to Canopus Street will be constructed. Having regard to the traffic count commissioned by Mr Holland, to which I shall shortly refer, Mr Viney says that, together with another count in 2011 by CRG Consultants, the Darien Street peak daily flows are between 2,500 and 3,000 vehicles.

Mr Viney also says that evaluation of the impact of the development on increase in traffic flow in Darien Street should also take into account the likely extension of medium to high density residential development of the land to the north of the Site. Further the proposed major expansion of the sports fields accessing Darien Street and to the west of the Site should be taken into consideration. He says the Council is proposing a major expansion of the facility with the construction of an additional senior football (soccer) field and an increase in parking spaces from 68 to 158 with estimated week day training sessions to increase from 6 to 16, involving and increase in the number of players per session from 72 to 200.

Finally Mr Viney expressed concern about the impact of the increased onstreet parking demand in Darien Street resulting from the proposal given that only one car space per occupant of each three bedroom unit is proposed. Given the area’s remoteness from easily accessible services and facilities and the inevitable overflow of parking demand from the expansion of the sports facility, he considers onstreet parking will increase.

Mr Holland’s (Applicant) Opinion – Joint Traffic Report

As to the daily theoretical traffic flow of 3,000 vehicles per day under Council Traffic Policy firstly Mr Holland says Darien Street is already slightly over that figure based on 10 vehicles per day per allotment. (320 dwellings - 3,200 movements). He then refers to a week long traffic count from Darien Street east of Palmetto Place he commissioned with Austraffic identifying the actual daily traffic flow in Darien Street. That survey indicated an existing average daily flow of 2,324 vehicles per day.

Mr Holland says the standard daily traffic generation rate for medium density development is six vehicles per day per unit which, with 33 proposed units would generate a daily traffic flow of 200 vehicle movements per day. That compares with 130 per day associated with the previously approved 13 lot residential subdivision on the Site. He considers the overall increased volume of traffic generated by the proposal would be insignificant and unnoticeable to residents, within the daily variation in traffic flows using Darien Street during a week.

Adding that figure of 200 vehicles per day to the existing Austraffic count of 2324 vehicles per day results in 2524 vehicles per day, still significantly less than the policy limit of 3000 vehicles per day.

As to the proposed Wendon Way/Canopus Street link, Mr Holland says it is not a matter of if that will occur but rather when, so that a small increase in traffic as a result of this development would be acceptable. In his view, even if the traffic flows slightly exceeded the 3000 vehicle per day policy limit that would not cause practical issues for users of the street. He instanced, the example some years ago of Ipswich City Council introducing a standard residential road cross section having direct residential driver access of having a limit of 5000 vehicles per day. That, he says essentially had the same properties as the Council’s Neighbourhood Access – Bus Route Policies.

Mr Beard’s (Council) opinion – Joint Traffic Report

Mr Beard expressed the view that reliance by the subject residential precinct on a single point of access is temporary because Council’s planning for the second access route is clear and in his view sensible traffic planning. On a temporary basis Mr Beard says the traffic generated by the proposed development of around 200 vehicles per day compared with the figure of 130 for the previously approved development of the Site will be of no consequence to the handful of houses between the proposed roundabout and Beckett Road. It would be neither significant nor noticeable adding that the proposed roundabout should marginally lower vehicle speed in that section of Darien Street and provide for additional on-street parking spaces clear of the traffic lanes.

Mr Viney Individual Report[77]

[77]Exhibit 17.

Mr Viney in his individual report again casts doubt on the proposed Wendon Way/Canopus Street future link saying it is uncertain whether it will be available in two years or 20 years. The additional 200 vehicles per day flow in Darien Street points to the Council’s requirement for the current approval that a new road to the north be constructed which he sees as anticipation of similar density residential development to the north.

He does not see any difficulty with the physical capacity of Darien Street to accommodate the additional traffic generated by redevelopment of the land to the north. Rather the concern is as to amenity and safety issues exemplified by residents encountering greater difficulty and delay in reversing from their properties. Even though that would only affect six existing homes in Darien Street, only four of which have direct lot access from that section of Darien Street between the new road opposite Palmetto Place and Beckett Road, nevertheless those residents could reasonably hold an expectation that Council would not increase traffic flow before the new link is constructed. That issue was compounded by two further factors namely the acceptance by Council of future higher density development of land to the north and the Council’s proposed major extension of the sports fields.

Mr Viney considers the internal car parking layout of the proposal to be inadequate and he previously mentioned this in the joint report. He says that given that each unit has three bedrooms and are likely to be occupied by couples rather than single owners or tenants, two car parking spaces rather than one is a higher probability of parking requirement. On that basis the existing proposed 51 car parking spaces to service 33 units is likely to exceed 60 spaces having regard to the requirements of occupants and their visitors.

Mr Viney acknowledges that the Site has good access to public transport with a reasonably frequent bus service between the Aspley Hyperdome and Brisbane City along Beckett Road but this does not warrant approval for the higher intensity development proposed. Distances to shopping, medical and school facilities would still make the Site reliant on car travel. Apart from those issues he says five of the 17 visitor spaces are poorly designed and do not encourage use by visitors being awkward to use and being at a 90 degree angle requiring significant reverse manoeuvring to turn around.

Mr Holland – Individual Traffic Report[78]

[78]Exhibit 9.

Mr Holland repeated his view expressed in the Joint Report as to the acceptability of the traffic impact of Darien Street. As to any impact resulting from the potential future development of the land to the north he said traffic issues would normally be assessed at the time of any such proposed development. But even if traffic flows exceeded 3,000 vehicles per day as a result of any such future development, that would not be sufficient to warrant traffic safety or traffic operational concern for the four houses in Darien Street that would be impacted. The additional volumes generated by the present proposal (200 vehicles per day) have no noticeable consequence and the proposed new roundabout would improve options for the four impacted houses to gain access to their home for the reasons he detailed.[79] No traffic related grounds exist to warrant refusal of the application.

Mr Beard – Individual Traffic Report[80]

[79]Ibid, p 4.

[80]Exhibit 13.

Mr Beard in his individual report expressed the opinion, as did Mr Holland, that no traffic engineering consideration could reasonably justify a refusal of the application. The increase of 200 vehicles per day would not cause traffic volumes in Darien Street to exceed the desirable maximum of 3,000 per day. While Darien Street remains the sole access route any problems will remain minor and within acceptable limits. As to any traffic issues relevant to possible future development Mr Beard agrees with Mr Holland that those issues must be addressed at the time of the application for such development and not at this point.

Conclusion re Traffic and Parking

I do not see that the traffic issues identified would justify refusal of the application. I accept the evidence of Mr Beard and Mr Holland on these issues where they conflict with Mr Viney. However I do not detect a great difference of opinion amongst the three experts except for the concern Mr Viney has as to the approval of the proposal prior to the construction of the proposed Wendon Way/Canopas Street future link enabling a new connection to Saturn Crescent. The absence of an application to develop the land to the north of the Site leads to his uncertainty as to when that link will be constructed. But I do not see that the present application should be delayed pending construction of that link. But for that, Mr Viney conceded that the specific issues of environmental capacity and probable increased on-street parking would not usually be sufficient to warrant refusal of the proposal on safety or capacity grounds.[81]
[81]Exhibit 17, p 5, para 35 (Viney Report).

Parking

Mr Viney accepts that the proposal complies with the required parking under the Councils Transport, Access, Parking and Servicing Planning Scheme Policy[82] but despite this says it is likely to be inadequate given the particular location. That concern is not sufficient to impact on the approval of the proposal given the compliance with Council policy requirements.
[82]Ibid, para 27.

C – Need

The final ground of appeal relied on by the Appellants is that the development is not needed. Mr Buckley expressed the view that no genuine need could be identified for this form of higher density development in the locality that could not be reasonably met by many other opportunities elsewhere. In response Mr Kierpal and Mr Mulcahy say the proposal is consistent with the DEOs for Residential Areas and the strategy for Residential Neighbourhoods in City Plan namely to ensure housing choice and affordability particularly, they say, in an area characterised by only the one form of residential housing, namely single detached houses on large lots. They say the underlying intent of the proposed development is to provide housing choice facilitating an option of downsizing for existing or nearby residents wanting to remain in the suburb but move from a larger house. Further it seeks to provide affordable entry opportunities for younger home buyers in the area.

Report – Mr J Norling on Economic and Planning Need

Mr Norling of Norling Consulting Pty Ltd business and property economics expert gave evidence for the Applicant on the issue of need. He provided a comprehensive report[83] describing the proximity of the suburb to the Brisbane CBD (16 kilometres) Chermside Major Centre (six kilometres containing the largest shopping centre in Queensland, Westfield Chermside, Prince Charles Hospital and a large number of community facilities) and explained how Carseldine’s development resulted in it more recently being dominated by large residential allotments occupied by what he said had been described as “McMansions”. He sees the suburb as in transition from large rural residential lots to more dense residential development, the majority in the form of detached dwellings on allotments of between 650 and 800 m².
[83]Exhibit 10.

He identified exceptions to this housing trend by identifying six developments of greater density than such detached dwellings namely:-

(a) Aveo Bridgeman Downs, a very large retirement village (with adjoining nursing home) on Ridley Road;

(b) Notting Hill Terraces, a large townhouse complex on Albany Creek Road;

(c) Bridgeman Greens, a medium sized townhouse complex on Albany Creek Road;

(d) Bridgeman Manors; a small townhouse complex on Myrtle Crescent (and backing onto Albany Creek Road);

(e) Fairview Villas, a small townhouse complex with access from Darien Street (200m from the subject sight) and Wendon Way; and

(f) Savannah Square, a small townhouse complex adjoining Aveo Bridgeman Downs on Ridley Road.[84]

[84]Exhibit 10, paragraph 27 (a)-(f).

Mr Norling analysed the Bridgman Downs residential market, demography and socio-economic characteristics, concluding that there is a strong level of economic community and planning need for the proposed development on the subject Site for the following reasons:-

(a) There is a strong level of demand for living in Bridgeman Downs due to its locational proximity to employment and necessary services and as evidence by the sales that have occurred to date in the suburb;

(b) It responds to the broad demographic changes that are occurring in a society that is ageing and featuring greater proportions of non-traditional family households;

(c) It contributes to the provision of a wider housing choice in Bridgeman Downs, specially in circumstances where the existing housing stock is dominated by detached dwellings;

(d) It would contribute to the achievement of the South East Queensland Regional Plan’s requirement for Brisbane City to accommodate an additional 156,000 dwellings by 2031;

(e) It would enhance housing diversity, integration and affordability by providing a potentially less expensive housing product than the one that dominates the area; and

(f) Demand for the proposed development is demonstrated by the successful completion of other townhouses in Bridgeman downs, such as Notting Hill Terraces, Bridgeman Greens, Bridgeman Manors, Fairview Villas and Savannah Square. In a wider sense, it has also been demonstrated by the mix of development that has successfully occurred at Fitzgibbon, a suburb having similar locational features to Bridgeman Downs.

Discussion re need

The Appellants submit that the report of Mr Norling is of no assistance because it fails the test in Williams McEwans Pty Ltd v Brisbane City Council[85] where it was held at a town planning and community need, where it can be demonstrated that at the time of the application,:

(a) There is in existence an unsatisfied laden demand; and

(b) That demand is not being met, or adequately being met by the planning documents in their present form.

[85](1981) QPLR 33 at 35.

Mr Norling they say dealt only with the issue of demand but not that of supply. Even then the need evidence, it is said does not prove that departure from the local plan in terms of building form is required to meet an identified need and that the need can only be met by the present proposal and not a compliant one. Submission of course is predicated upon there being a departure from the Local Plan and that the proposal is non-compliant.

In AJ P Rowe v Livingstone Shire Council & Ors[86] Senior Judge Skoien discussed authorities dealing with concept of planning need and said:
[86](2005) QPEC 034 at [23] – [25].

“[24] Planning ‘need’ does not, (contrary to what Mr Rowe appeared to submit) mean pressing need. Rather:
‘ ‘Need’ in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature. A thing is needed if its provision, taking all things into account improve the physical well-being of the community. See Cutprice Stores Retailers & Ors v Caboolture Shire Council (1984) QPLR 126-131’ (Primegroup Properties Ltd v Caloundra City Council & Darracott & Ors (1995) QPLR 149.

And:
‘Need in planning terms is a relative concept. It does not connote pressing urgency but rather relates to the general well-being of the community. A use would be needed if it would, on balance, improve the service and facilities available in a locality. See Rooster Land Pty Ltd v Brisbane City Council (1986) 23 APA D 58 at 60’ (Primegroup Properties Ltd v Caloundra City Council & Darracott & Ors (1995) QPLR 149.

And:
‘Fundamentally, it appears to me to have been accepted that the issue of need may be decided in favour of a proponent where it is shown that the community’s (as distinct from the proponent’s) interest would be advanced by making the amendment sought. Calligars & Ors v Bundaberg City Council & Ors (2002) QPELR 213.’”

That was a case where need was expressly called up by the then P&E Act as a matter to be considered on a re-zoning application.

Conclusion re Need

The statements demonstrate that need is a broad concept. I do not accept that Mr Norling’s evidence is without weight given the reasons he gives for his opinion which demonstrate to me that, on balance, the proposal would in his opinion improve the services and facilities available in the area by the provision of a more diverse, affordable style of housing. I am satisfied that the Applicant has established a need in the relevant sense.

New draft City Plan

It is common ground that the new draft City Plan does not alter the planning for the Site’s locality. I need not deal further with it.

Overall conclusions

As will be evident from each of my conclusions I am satisfied that the Applicant has demonstrated that the proposal does not conflict with City Plan. But lest I be wrong I shall now consider whether there are sufficient grounds to justify approval of the application.

Are there sufficient grounds to approve the proposal notwithstanding any conflict?

SPA s 326 prohibits any approval decision which is in conflict with the Planning Scheme and the sufficient grounds to justify the decision of approval exist despite the conflict. Schedule 3 of SPA provides that Grounds means matters of public interest and does not include the personal circumstances of an Applicant, owner or interested party.

The position of the Applicant and Council is that there is no conflict. That is what I have found. However, in the event of a conflict, the Applicant submits that the significant planning need found by Mr Norling to exist would constitute a matter of sufficient interest to warrant approval. In addition to that the Applicant says that the creation of the new roundabout and road leading to the land to the north of the Site will facilitate the future development of that land avoiding a multiplicity of access points to Beckett Road. This positive planning outcome is said to also constitute a matter of public interest. I agree with that. In summary if a conflict with the scheme exists, it is a very minor one. I am satisfied that there are sufficient grounds being matters of public interest to justify approval.

Order

The appeal is dismissed.

CITATION:	Scott & Ors v Brisbane City Council [2014] QPEC 11
PARTIES:	SCOTT AND OTHERS (Appellants) v BRISBANE CITY COUNCIL (Respondent) and PROSRL PTY LTD (ACN 159 369 454) (Co-Respondent)
FILE NO/S:	2717/13
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court at Brisbane
DELIVERED ON:	3 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	12 to 19 December 2013
JUDGE:	Searles DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	PLANNING & ENVIRONMENT – PLANNING – Submitter appeal by local residents against the Council’s approval of a development application by the Co-Respondent for the development of a 33 unit Multi Unit Dwelling development, being a 33 townhouse development spread over 10 buildings at 5 Darien Street, Bridgeman Downs.
COUNSEL:	Appellant: M Williamson Respondent: J Lyons Co-Respondent: S Ure
SOLICITORS:	Appellant: Connor O’Meara Respondent: BCLP Co-Respondent: HWL Ebsworth