Sia & Anor v. Brisbane City Council & Ors

Case •

[2009] QPEC 8

•

20 March 2009

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Sia & Anor v Brisbane City Council & Ors [2009] QPEC 8

PARTIES:

HEATHER SIA, IAN HARRISON SMITH, ANNETTE DEBORAH (TAN) SMITH, NORMAN LOVE, DARREN JOHN BUCHANAN, ALEX CALLEGARI, RICHARD ANNING, PAUL LAMB, MERCER PHELPS, PATRICIA EADE, GERALD McCONNELL, JANINE McCONNELL
Appellants

v

BRISBANE CITY COUNCIL
Respondent

and

CBD LAND PTY LTD
Co-Respondent

and

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENTAL PROTECTION AGENCY
Co-Respondent by Election

FILE NO/S:

2269/2008

DIVISION:

Planning and Environment

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2009

JUDGE:

Searles DCJ

ORDER:

1.   Appeal dismissed

2.   Application approved.

3.   Appeal adjourned to permit the Council and the co-respondent to finalize appropriate conditions of approval.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Application for residential development in light industrial area – whether proposed development conflicted with City Plan – character , amenity of area, height, scale and bulk of proposal – whether near public transport – interpretation of Bulimba District Local Plan

Integrated Planning Act 1997 (Qld)

Parcel One Pty Ltd & Ors v Ipswich City Council & Ors (2007) QPELR 474

Baptist Union of Queensland v Brisbane City Council (2003) QPELR 61

COUNSEL:

Appellants – B. Cronin

Respondent – B. Job

Co-Respondent – M. Williamson

SOLICITORS:

Appellants – McInnes Wilson Lawyers

Respondent – Brisbane City Legal Practice

Co-Respondent – MacDonnells Law

Introduction

  1. This is a submitter appeal against the Council’s decision to approve a development application for a material change of use for 35 multi-unit dwellings at 125 Bulimba Street, Bulimba, Brisbane.  The co-respondent by election (EPA) was excused from active participation in the appeal by order of Judge Rackemann on 17 October 2008.

  1. The subject land comprises six lots, Lots 15, 23, 25, 26, 81 and 84 on RP 87060.  The total area is 4,150 m2 and each lot is roughly the same size, namely 691.66 m2.[1]The proposed 35 unit development comprises 11 two-storey townhouses and 24 apartments within what the respondent and co-respondent say is a three-storey building but which the appellants say is four-storey.  The proposed plot ratio is .75.

    [1]Transcript 2.27.8

  1. The land is presently within the Light Industry Area under the City Plan although it is common ground the clear preference of the Scheme is that, upon cessation of industrial activity area, the land be developed for residential use.

Locality

  1. The land has access from both Bulimba Street and Banya Street immediately to the east.  Immediately to the north of the site are existing industrial buildings and to the north of those buildings, still within the Light Industry Area are 12 new detached houses built by the present co-respondent.

  1. In Banya Street across the road and to the north-east of the site are two further large industrial buildings between Banya Street and Johnson Street.  To the north and being the last street short of the Brisbane River is McConnell Street which dog legs into Byron Street.  Relevantly, there is a Light Industrial Area between McConnell Street and the river extending from a little to the west of the line of Johnson Street east along McConnell Street into Byron Street with an eastern boundary at Apollo Road.  There is parkland in Banya Street to the south-east of the block and playing fields immediately west of the site in Bulimba Street.  Further west of that site located between Kenbury and Coutts Streets is an 86 house development on 25,750m2 a former Telstra site.  This is a mix of attached and detached houses, the precise breakup of each not being in evidence, and was described by Ms Roughan the town planner called by the Council as a Tuscan enclave.[2]  That development has a density of one dwelling per three hundred (25,756 divided by 86) compared with the proposed development of one per 120 m2.[3] 

    [2]Exhibit 6, page 3, transcript 2.21.43 and Exhibit `0.

    [3]Transcript 2.27.31, 2.31.3.  The precise calculation for the proposal is one per 1.118.57 m2 .

  1. Apart from that Telstra site development, the park,  playing fields and the industrial land I have mentioned, all the land in the immediate locality of the site is in the Low Density Residential area with a good deal of it covered by a Demolition Control Plan.[4]  There are no apartment buildings between the river to the north until one reaches Brisbane Street, two streets south of the site where there is an apartment building on the corner of Brisbane and Bulimba Streets.[5]  No evidence was given as to the size or density of that building.  Further south and south of Oxford Street there are apartment buildings one example being the Baulderstone/Hornibrook site.[6]

    [4]See Exhibit 6, page 8.

    [5]Transcript 2.55.2.

    [6]Exhibit 6, page 3.

  1. Other features of the locality in which the site is located is its proximity to the river, a golf course, boat ramps, a couple of sailing clubs and, about a block and a half to  its south, Oxford Street Village with shops and cafes.[7]  Mr Venn, the town planner called by the appellants agreed the locality within which the site is located was a very pleasant neighbourhood with a very pleasant residential environment.

    [7]Transcript 2.69-70.

  1. That then attempts to give some feel for the locality.  The nub of the disagreement between the appellants and the respondents and co-respondents is the effect the proposed development will have upon what they see to be essentially a low density residential area with some industrial area.

Assessment

  1. The application required impact assessment and is to be assessed in accordance with Integrated Planning Act (IPA) s. 3.5.5 and decided in accordance with ss. 3.5.11 and 3.5.14.  Section 3.5.14(2) requires that any decision not compromise the achievements of the DEOs for the planning scheme area or conflict with the Planning Scheme unless sufficient grounds exist to approve the application notwithstanding any such conflict. 

Issues

Minor Changes

  1. At the beginning of the appeal the co-respondent made application to facilitate what is said to be a minor change to the development application.  Under IPA s. 4.1.52(2)(b) where, as here, the appellant is a submitter the court must not consider a change to the application the subject of the decision being appealed unless the change is only a minor change.  The amendment is not opposed by any  party.

  1. The changes sought are these:

(a)        the basement plan has been amended[8] to relocate a carpark for people with disabilities from the driveway to an area within the basement;

[8]Exhibit 4, page A 19

(b)        the entry to the basement carpark is to be 6.2 metres wide, which gives effect to a handwritten note made by a Council officer on the approved plan of development;[9]

[9]Exhibit 4, page B 19

(c)        openings are now provided to the basement wall to enhance sight visibility at carpark numbers 8, 9, 10 and 11;

(d)        an architectural feature described as “banding” has been added to the elevations of the building to provide visual interest; and

(e)        two additional plans were prepared by the co-respondent’s traffic engineer to deal with a number of matters arising out of the joint meeting of traffic experts.[10]  The plans were prepared during the course of the joint meeting in response to issues associated with the longitudinal grading of the driveway to the unit block and the width and configuration of the driveway to the unit block.[11]

[10]Exhibit 4, page A 30 and 31

[11]Exhibit 1, Volume 1, page B 3.

  1. I am satisfied that the changes can be fairly described as minor within of s. 4.1.52(2)(b) and grant the application to amend.[12]

    [12]See Parcel One Pty Ltd & Ors v Ipswich City Council & Ors (2007) QPELR 474 and 476-477.

  1. The proposal as explained by Mr Perkins, the town planner called by the co-respondent[13]  will involve the 11 two storey townhouses being located along the western side of the site along Bulimba Street. They will interface with the existing residential housing along the southern boundary of the site in both Bulimba and Banya Streets.  As to the larger three storey apartment building it will be located within the north eastern corner of the site approximate to the existing large industrial buildings adjoining the site to the north.  Access to the apartment building will be along two individual driveways along Banya Street to provide access to townhouses 10 and 11.  The main access to townhouses 3,5,6,7,8 and 9 will be via a driveway from Bulimba  Street leading to an internal driveway traversing the development in an east-west direction.  There will be two further minor access points along Bulimba Street to allow access to townhouses 1, 2 and 4.[14]  A prioritised pedestrian access is also provided from Bulimba Street following the townhouse access driveway.

[13]Exhibit 2, page 4, paragraph 22.

[14]See Plan, Exhibit 2, page 64.

  1. Basement carparking will be provided with 38 spaces including 16 tandem spaces and six visitor carparks.  Additionally 20 carparking spaces will be provided for the townhouses, several being tandem visitor spaces in driveways typical of detached residential dwellings.

  1. The setback distances from the northern boundary of the site will be approximately 6.5 metres for the apartment building and 2 metres for the townhouses.  From the Banya Street eastern boundary 6 metres, from the southern boundary 4 metres and from the Bulimba Street frontage on the western boundary, 6 metres. 

  1. Thirty-one per cent of the site will be landscaped being an area of 1,288 m2 with communal open space provided to the north-western corner of the apartment building comprising a multi function entertainment and recreation area.

  1. The design will seek to integrate with the existing built form in the area with the townhouses proposed along the Bulimba Street frontage being stepped horizontally and vertically to ensure visual integration with the adjoining detached houses.  Finally the deep balconies and a stepped façade are proposed to articulate the building form of the apartment building.

  1. A most helpful manifestation of the development in its final form is provided by Exhibit 3 which is a digital photo montage prepared by Mark Elliott Illustrations.  It   assists one to appreciate the proposal and contains:-

(a)           Figure 01.  This is an aerial photograph of the existing site showing the industrial development to the north and north-east, the detached residential housing to the south, the park I have referred to in Banya Street to the south-east and the sports grounds to the west of the site in Bulimba Street;

(b)          Figure 02.  This is a photograph of the existing site taken from the north-west.  Apart from anything else, it demonstrates to me the significant effect that trees and other vegetation presently have on the softening of the visual impact of the building from the Bulimba Street perspective.  Similar softening does not appear at present in the industrial building to the north of the site either from the Bulimba Street or Banya Street perspective;

(c)           Figure 03.   This is a digital creation of the proposed development after construction taken from the same perspective as Figure 01;

(d)          Figure 04.  This is a photograph taken from a point in Banya Street at the northern boundary of the first industrial building to the north-east of the site and photographing from a south-westerly directing showing that perspective of the site.  One prominent feature is a sizable Telstra transmission tower which is intended to be removed in the proposal;

(e)           Figure 05.  This is a digital creation of the finished development from the same perspective as Figure 05?

(f)            Figure 06.  This is a photograph of the site taken from the park in Banya Street in a north-westerly direction.  It again shows the thick vegetation which buffers the visual amenity of the site in Banya Street;

(g)           Figure 07.  This is a digital reproduction of the finished development from the same perspective as Figure 06.”

Disputed Issues

  1. Mr Williamson, counsel for the co-respondent has usefully summarized the issues[15] as:

    [15]Co-respondent written submissions, page 2

(a)        whether the proposal is in conflict with the Council’s Planning Scheme, in particular:

(i)          whether the proposal compromises Citywide DEOs;

(ii)        whether the proposal compromises DEOs specific to Residential Areas;

(iii)        whether the proposal is in conflict with provisions of the Strategic Plan dealing with the Residential Neighbourhoods element; and

(iv)       whether the proposal is in conflict with a Residential Design Code;

(b)        whether the proposal is three or four storeys in height;

(c)        what are the reasonable expectations for development and amenity in the area;

(d)        whether the proposal will have an unacceptable impact on character/sense of place;

(e)        whether the proposal will have an unacceptable impact on the amenity of the area as a consequence of increased traffic movements;

(f)         whether the proposal is an over-development of the site; and

(g)        in the event conflict is established with the Planning Scheme, whether there are sufficient grounds to justify approving the application notwithstanding such conflict.

ARE CITY-WIDE DESIRED ENVIRONMENTAL OUTCOMES COMPROMISED?

  1. The relevant DEOs relied upon by the appellants are[16]:-

    [16]Exhibit 5, tab 2 pages 6-8R;

“3.2  Community Life Health & Safety

3.2.1Desired environmental outcome

Brisbane is a safe, healthy and vibrant place to live, offering a wide range of local and regional services, facilities and activities and diverse housing, community, cultural and recreational choices. 

3.2.2Citywide strategies to achieve the DEO

3.2.2.1   Enhance social diversity, choice and accessibility through:-

(a)   Housing diversity and affordability – a wide range of
housing types and tenures across the city to meet the
affordability, life cycle and life style needs of different
households


       
       
       

(b)  Integration – new development that integrates with
existing development


       

(c)    Social diversity – development that supports a wide

social and cultural mix and Brisbane’s ageing population

(d)Accessibility – equitable access to Centres, services,

facilities, electronic service information, transport and
green space

…

3.2.2.4 

Protect and Enhance the scenic landscape and promote the
city’s unique sub-tropical character through:


             

(e)   Sympathetic development – buildings, structures and
landscaping that complements the surrounding
character and style in both urban and rural areas


       
       

3.2.2.5

Provide for effective community consultation and


 

participation in projects of significance to the City or local area through:

a)   Plan formulation – consulting and facilitating participation early in plan formulation

b)   Information – informing communities and stakeholders about proposals and how to participate in the planning and development process

c)   Development proposals – consulting the community on significant development proposals

d)   Impact mitigation - consulting on a proposal’s potential impacts and reasonable measures to relieve likely negative impacts

e)   Feedback - community feedback on policy and development outcomes

3.3      Land use in built environment

3.3.1Brisbane’s land use pattern and built environment promotes its unique environment, such as its timber and tin architecture, topography and urban layout, and features of sustainable network or residential areas, centre, employment areas and transport links.

…

3.3.2.2

Requires development to enhance the amenity, environment
and cultural context of its locality through;


           

(a) human scale – urban areas, Centres and facilities
designed to a human scale


      

(b)  character buildings – protecting existing buildings that
contribute to the City’s character


      

(c)  enhancing character – development that is sympathetic 
to the character of surrounding areas


      

…

(g) consistency – preventing the intrusion of incompatible 
uses; and   


      

(h) sense of place – development that creates a feeling of
belonging and places with a distinct character.”


      

  1. The appellants say that the proposal conflicts with the Citywide DEOs and the supporting strategies designed to achieve those DEOs in the following respects:-

(a)        the introduction of an apartment building as proposed is not needed to achieve housing diversity envisaged in Strategy 3.2.2.1(a) above.   This is because there is already a multi unit area within Bulimba, on the corner of Bulimba and Brisbane Streets which I have already identified, and the Baulderstone/Hornibrook development south of Oxford Street already caters for that housing diversity;

(b)        the proposal does not provide sympathetic development because it is at odds with the demolition control of timber and tin housing and the low density residential character of the area;

(c)        there has been no community feedback on any Council proposal to allow the integration of apartments into the area;

(d)        the proposal is in conflict with the timber and tin architecture which is so dominant in the area; and

(e)        the proposal does not enhance the amenity, environment and cultural context of the locality because of its height, bulk, density and built form.[17]

[17]Appellant’s written submissions paragraphs 46 and 52.

  1. Mr Perkins and Ms Roughan, the town planner called by the Council both dismissed the suggestion of a conflict with the Citywide DEOs.  Further, even Mr Venn the appellants’ town planner agreed that:-

“It is unlikely that a single development of this type would compromise of itself a DEO of this nature in a city context”.[18]

[18]Transcript 2.92.35-38.

  1. Turning to the appellants’ grounds:-

There already exists a multi-unit area within Bulimba.(a)        

I can see nothing in the city-wide DEOs which would support an argument that they are intended only to apply to part of a suburb or area and that once one section of such a suburb or area had experienced diverse housing, further diversity in other areas is not to be considered;

(b)The proposal will be at odds with the timber and tin housing and the low density residential character of the area.       

The site is not within or adjacent to the demolition control areas   As will become apparent, I  consider that the proposal will not compromise the character of the area notwithstanding the significant incidence of low density residential housing in the area;

Community feedback.(c)           

There was no evidence led or argument advanced on this;

Conflict with the dominant timber and tin architecture in the area.(d)          

As will become apparent I do not find the proposal to be at odds with the concept of the promotion of timber and tin architecture.  Whilst there is still a significant presence of that type of housing in the area, it is clear from a physical inspection that there are houses of contemporary architecture, style which sit comfortably within the area

The proposal fails to enhance the amenity(e)           because of height, bulk, density and built form.

As will become clear I do not accept that the proposal fails to enhance the amenity of the area by reference to its height, bulk, density and built form.

  1. I am unable to see that the proposed development would conflict with any of the city-wide DEOs and find that there is no such conflict.

IS THERE A COMPROMISE OF DESIRED ENVIRONMENTAL OUTCOMES FOR RESIDENTIAL AREAS?

  1. The appellants rely on DEOs 2, 3 and 4 relating to residential areas[19] which provide:

    [19]Exhibit 5, tab 4 pages 27 and 28

“5.1.1     Desired environmental outcomes
The following DEOs apply to all Residential A areas.  Refer
             Only to DEOs for each specific Area.

(1)…

(2)Houses are located on new vacant lots that comply with the minimum size requirements provided in the Plan and the subdivision does not occur of existing or approved buildings including houses, so as to maintain the character and amenity of residential neighbourhoods and the expectation of residents.

(3)Housing is predominantly low density, with higher densities in or near multi-purpose centres and near public transport.

(4)Neighbourhoods have a sense of place based on their location, residential nature, heritage, topography, natural environment, built form and proximity to a local centre”.

  1. Paragraph 5 of the City Plan[20] identifies the Residential A area referred to in paragraph 5.1.1 above.  Relevantly paragraph 5 provides:-

    [20]Exhibit 5, tab 4

“5.         Residential Areas

Residential Areas are the main components of Residential Neighbourhoods in the Strategic Plan.

The Plan has 5 different Residential Areas:

·Low density residential area;

·Character residential area;

·Low-medium Density residential area;

·Medium density residential area;

·High density residential area.”

  1. Whilst it is true that the site is located in the Residential Neighbourhood element of the Strategic Plan[21] that does not mean the site is within a Residential Area for the purpose of DEOs applicable to Residential Areas.  Clearly it is not.  It is within the Light Industry Area.  Accordingly the DEOs relating to Residential Areas are of no application to this site.  So for that reason alone, no conflict can arise between the proposal and Residential Area DEOs.

    [21]See Exhibit 2, page 9, paragraph 35 and page 36

CONFLICT WITH STRATEGIC PLAN

  1. The appellants rely upon the Residential Neighbourhoods provisions of the Elements of the City section of the Strategic Plan.  As I have said, the site is within the Residential Neighbourhood element of the Strategic Plan so these provisions are relevant.[22]  The plan provides that the Elements provide a broad expression of how the City’s structure should develop to achieve the DEOs, Citywide and specific to the Areas.[23]

    [22]Exhibit 2, paragraph 35 and page 36.

    [23]Exhibit 5, tab 2, page 13, paragraph 4.

  1. The Residential Neighbourhood provisions[24] record the challenges facing the city including:-

    [24]Exhibit 2, tab 2, page 15 paragraph 4.2

(a)        increasing interest in inner city living with its lower transport costs and better access to a growing range of urban attractions and facilities;

(b)        a renewed interest in and focus on the Brisbane River;

(c)        changing composition of households through changing economic conditions, lifestyles and demographic trends resulting in need for housing to reflect the ability in people to choose the kind of dwelling that suits their needs at different times in their life;

(d)        a major challenge of land fragmentation with large areas of Brisbane’s fringe having been subdivided into small holdings presenting a major impediment to orderly growth, efficient provision of infrastructure and planning for new neighbourhoods; and

(e)        in the above context of rapid growth and changing lifestyles the challenge for the City is to ensure an efficient supply of residential land and housing that can:-

·provide a range of housing choices to meet the widening spectrum of needs and desires of the community;

·support the diversity of people and activities that contribute to a broad social mix in the City and therefore to its character and liveability;

·encourage affordable housing through the retention or provision of low cost housing;

  1. The appellants particularly rely upon three sections of the Elements of the City Section of the Strategic Plan – ss. 4.2.2.1, 4.2.2.3 and 4.2.2.4[25] which relevantly provide:-

    [25]Appellants’ submissions paragraphs 24-26

“4.2.2.1   
Meeting realistic expectations of future amenity

People should be able to choose their residential location with realistic expectations for the future amenity of the area.  The Plan’s strategic directions in this regard are to:-

·prevent intrusion of development that could seriously detract from residential amenity; and

·ensure new residential development contributes to pleasant living environments and is designed to integrate with, rather than be segregated from, existing development in the area.

These community expectations also 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.

4.2.2.3 
Higher density housing near public transport

Higher density housing in residential neighbourhoods is to be in locations that can be effectively served by high quality public transport or located close to the City Centre.

4.2.2.4
Maintaining character

In older suburbs, the unique character is derived mainly from topography, urban layout and ‘timber and tin’ architecture.  Much of this ‘timber and tin’ housing will remain and new development will reflect traditional design elements while allowing for innovative design responses.”

  1. Section 4.2.2.4 also speaks of Demolition Control Precincts in those locations in older suburbs that contain pre-1946 housing with distinctive traditional architecture.  It also provides that through Local Plans, Council will consult with residents of the older suburbs in progressively amending the Plan to better protect pockets of traditional houses. As I have said, such a DCP is in operation in a significant part of the locality of this site. 

Realistic expectations of future amenity

  1. Mr Venn considered the proposed development was inconsistent with the reasonable expectations of the residents as evidenced by the level of adverse submitter responses to the proposal.[26]   He said that the intensity of development anticipated by residents of the Bulimba/Banya Streets facility was low-density residential.[27]  He made that latter statement after he summarized his opinion of the character of the local area in these words:-

“In summary, the character of the local area in the main, and of Bulimba and Banya Streets in particular, is one of a quiet neighbourhood of modest, but well maintained single detached dwellings in the traditional style fronting wide but low-trafficked residential streets equating to the residential intensity encapsulated by the provisions of the planning scheme as Low Density Residential.  (LR)  To the casual observer, the residents enjoy an environment that is devoid of any residential intensity greater than the ubiquitous ‘timber and tin’ styled home on a single block.  There is a complete absence of Medium Density (MR) development in this part of Bulimba north of Oxford Street and, other than a minor component in the ‘old Telstra site’ (which is also remote from the subject site), a confinement of Low-Medium Density Residential (LMR) designated land to a band within 300m of the Oxford Street retail strip (compared to the subject site of 820m distant).”[28]

[26]Exhibit 7, paragraph 4.15.2.

[27]Exhibit 7, paragraph 2.5.3.

[28]Exhibit 7, paragraph 2.5.7

  1. That description of the character of the subject area makes no mention of the industrial development though Mr Williamson said the first sentence above should be read in context and that throughout his report he talked about the light industry.[29]

    [29]Transcript 3.9.5.

  1. Mr Venn’s description of the character of the area is consistent with his evidence which was to the effect that any assessment of the proposal should be done against the background of the surrounding Low Density Residential area and that the industrial development the area was in transition to residential development and should be seen as such.

  1. On the issue of community expectations, Mr Perkins referred to s. 2.25.2 of the City Plan dealing with Generally Inappropriate Impact Assessable Development which this proposal is,[30] and acknowledged the requirement that the proposal must accord with the reasonable expectations of the area. In that regard he said the current land uses provided for on the site and in the immediate locality and those uses envisaged by the Planning Scheme were significant considerations in framing people’s reasonable expectations. In his view it would be reasonable for the residents’ future expectations for land uses currently provided for on the subject site and in the immediate locality, and those envisaged by the planning scheme to include three considerations. Firstly continued use for industrial purposes, redevelopment for light industry purposes or finally, redevelopment into residential uses as envisaged by Precinct 3.1 of the Bulimba District Local Plan (Local Plan) in which precinct the site is located (see later)[31].  Although the Local Plan  expresses a preference for the redevelopment of light industrial areas to residential development upon cessation of industrial uses, it was not in dispute that the subject industrial land could continue to be used  for industrial purposes into the future.  Apart from the obvious obligation to comply with the law, there is no prohibition on such use.

    [30]See Exhibit 5, tab 4, page 40 “Any Other Material Change of Use” in the Light Industry Area

    [31]Exhibit 2, page 28, paragraph 82.

  1. Of course any such expectation as to future amenity here under consideration must be more than a fervent wish.  It must be based on a full and impartial understanding of all aspects of the planning controls.[32]  In the result, I prefer the evidence of Mr Perkins on the issue of the reasonable expectation as to future amenity.

    [32]See Baptist Union of Queensland v Brisbane City Council (2003) QPELR 61 at 80, paragraph 129.

Increases in density near high quality public transport and close to the City Centre.

  1. As outlined above in the provisions relating to Residential Neighbourhoods, s. 4.2.2.3[33] provides for higher density housing in residential neighbourhoods to be in locations that can be efficiently served by high quality public transport or are close to the city.  Mr Perkins gave evidence that the site had a good range of access to public transport in that it had very convenient access to a bus service and was within walking distance of two CityCat ferry stops, Oxford Street and Apollo Street.[34]  He said that in terms, of the range of public transport options, it was better serviced than a lot of areas and whilst not the best site in the city it scored well in terms of public transport.[35] As well as the CityCats there are bus stops in McConnell Street.[36]  There was extensive cross-examination by Mr Cronin of Mr Perkins in relation to the time it would take to walk to the respective CityCat terminals.  Mr Perkins estimated the distance of both routes at roughly 800 metres and it took Mr Perkins 9 ½ minutes to walk it.[37]  It was put to him that Mr Alex Callegari one of the appellants who lives at 64 Banya Street, Bulimba, had walked two different ways to Oxford Street terminal, the shortest of which via Henderson, Brisbane and Quay Streets was 1.36 kilometres, taking him 13.5 minutes and the other along the river on McConnell Street through Vic Lucas Park and on to Quay Street, a distance of 2.6 kilometres which took him 18.5 minutes.[38]  Notwithstanding that, Mr Perkins adhered to his view that the distance of 840 metres to get to the Apollo Street ferry terminal could still be said to be near public transport.[39]

    [33]Exhibit 5, tab 2, page 17.

    [34]Transcript 1.35.4.

    [35]Transcript 1.44.10.

    [36]Transcript 1.43.35.

    [37]Transcript 2.12.5.

    [38]Exhibit 7B, transcript 2.12.15-50.

    [39]Transcript 2.13.20.

  1. Mr Venn agreed the CityCat service was high quality public transport, probably the highest form of quality in terms of passenger desirability, but  did not think  the site was efficiently served by the ferry service  which he said was a function of where the ferry terminals were located.[40]  He thought the distance of 800 metres was a longer walk than what was generally contemplated and it could not be said that the site was near the CityCat terminals.[41]  As to the proximity of the site to the City Centre, he agreed it was close but not particularly close.[42]  He said the bus service for the site provided a bus every half hour.[43]

    [40]Transcript 2.83.40, 2.84.10.

    [41]Transcript 2.84.25-40.

    [42]Transcript 2.85.40.

    [43]Transcript 2.84.15.

  1. My sense of the evidence on this issue is that the quality of the public transport system is high in terms of the type of transport provided although the site does appear to be a little further away than what, according to Mr Venn, one would normally expect to be a reasonable distance to a public transport facility.  Having said that, I do not think the distances are such as to seriously detract from the quality of the transport service.  I am satisfied the site can be said to be near public transport of a high standard.

Maintaining Character

  1. I have already set out in paragraph 32 above, Mr Venn’s view of the character of the area.  In support of that opinion he pointed to the following[44]:-

    [44]Exhibit 7, paragraph 2.5.1 by reference to Figure 9, Exhibit 7, page 65 and Figure 4, page 60.

(a)A predominance of single detached dwellings on single and double small lots within the Low Density Residential Area;

(b)A high percentage of the dwellings referred to in (a) being within the Demolition Control Precinct designation of City Plan;

(c)Twelve recently constructed detached dwellings on small lots in Bulimba and Banya Streets north of the subject site within the Light Industry Area.”  These are the houses constructed by the present co-respondent I have earlier referred to.[45]

[45]Paragraph 4 above

(d)Nine other detached dwellings on conveniently sized allotments fronting McConnell Street within the Light Industry Area.

(e)Two large office/warehouse developments in the Light Industry Area between Banya and Johnston Streets;

(f)A comparatively small (by today’s standards) self storage facility immediately adjacent to the subject site within the Light Industry Area and comprising ten (10) separately titled storage units extending between Bulimba and Banya Streets;

(g)Two storey office premises between self storage sheds and new small lot detached dwellings referred to in (c) above fronting Banya  Street and within the Light Industry Area;

(h)A large area of parkland (Johnston Park) within the Park Area between Banya, Johnston and Lang Streets immediately to the south of the Light Industry Area;

(i)A considerably larger area of parkland within the Sport and Recreation Area west of Bulimba Street and extending to Kenbury Street and between Merry Street in the north to Simpson Street in the south. 

Note:  I cannot identify Simpson Street on any figure in evidence and think that should refer to Thompson Street which is to the south of the sportsground to the west of the site;

(j)The relatively recent residential development of the former Telstra site (referred to in submissions of residents as the Portside Development) between Kenbury and Coutts Streets comprising 85 dwellings on small lots – some attached townhouses and some detached dwellings within a mainly low density residential area with a smaller proportion (approximately 1/5th) within the Low-Medium Density Residential Area fronting Coutts Street and, hence, remote from the subject site;

(k)‘Upmarket’ detached housing on the northern side of McConnell Street and on the western side of Quay Street and giving frontage to the Brisbane River; and

(l)Other than for the two large warehouse premises referred to in paragraph (e) above, re-development of the Light Industry Area to one of residential use has proceeded in the past and appears likely to soon envelop the remaining industrial premises between Bulimba and Banya Streets referred to in (f) and (g) above.

  1. The last sub-paragraph of the last paragraph evidences Mr Venn’s opinion earlier referred to that the remaining industrial activity in the Light Industry Area to the north of the site will soon give way to residential development.  It is consistent with his evidence[46] that the industrial uses to the north of the site will probably cease in the short term although acknowledging that involved speculation on his part.

    [46]Transcript 3.7.5

  1. I have no evidence before me in relation to existing industrial uses in the locality to support any view firstly that there is any intention on the part of the owners/users to cease operations or secondly if such was  in prospect when that might occur.  I proceed on the basis that the industrial activity in the area will continue as a feature of the area.  In any event, on the issue of character, Mr Venn was clearly of the view that the development was antithetical to the maintenance of the character of the area as he saw it.

  1. Mr Perkins not surprisingly did not agree with Mr Venn.  His view was that the character of the area is not one of a traditional residential precinct and points to the industrial buildings to the north east of the site.  As to the impact of the proposal on the character he made the point that the site is not within the Demolition Control Precinct which protects pre-1946 housing nor is it within or adjoining any such area.   His view was that, whilst the surrounding residential area to the south of the site is low density, that was not to say that future densities should be limited to or replicate the pattern of existing development particularly given that the Bulimba District Local Plan is silent about future densities which latter point was common ground.[47]

    [47]Exhibit 2, pages 23 and 24.

  1. Ms Roughan agreed with Mr Perkins that the character of the locality should be considered in the context of not only nearby housing but also the longstanding industrial development in the north and east.  In her view it was not a predominantly residential environment but one of a mixed use character.[48]  All experts agreed that the proposed development would be an improvement on the industrial use.[49]

    [48]Exhibit 6, page 17, paragraph 6.2.

    [49]Experts Joint Report, Exhibit 6, page 37, 3rd dot point under Areas of Agreement.

  1. On the issue of character I prefer the views expressed by Mr Perkins and Ms Roughan to that of Mr Venn.  To my mind the character of the area is one of mixed uses and cannot be described simply as a low density residential area.

  1. I do not see that the proposal will have an adverse impact on the character of the area.

CONFLICT WITH THE RESIDENTIAL DESIGN CODE

  1. It was common ground that there were no particular design guidelines for residential redevelopment of land in a Light Industry Area, that there was no definitive Residential Area classification to be complied with by the co-respondent and that the Local Plan does not provide any guidance on development intensity.  Even so, Mr Venn considered that the absence of any such prescription demanded that the subject application be considered against what he considered were legitimate norms for the local area around the subject site which he identified as Low Density Residential.  On this view the proposal would fall to be assessed against the Residential Design-Low Density, character and Low-medium Density Code.[50]  This argument parallels that which Mr Venn developed in relation to the interpretation of the Local Plan to which I shall shortly refer.

    [50]Mr Venn’s report Exhibit 7, page 18; Exhibit 5, tab 8 (relevant code)

  1. But Mr Venn’s argument for the application of that Code is met with a threshold difficulty in paragraph 1 of the Code itself which, relevantly, provides:-

“1.Application

This Code will apply in assessing a material change of use and/or building work for a multi-unit dwelling in:

·a Low-medium Density Residential Area

·a Low Density Residential Area

·a Character Residential Area

·a Centre

·a potential development area as identified in a Local Plan.

On its face the Code is clearly inapplicable to the subject site which is located within a Light Industry Area. 

  1. That is not to say that the lack of application of that Code validates a runaway assessment of the application in “an arbitrary fashion or in an unstructured, unplanned way a concern Mr Venn had.”[51]  Neither Mr Perkins nor Ms Roughan suggested this.  Mr Perkins acknowledged[52] that notwithstanding the  inapplicability of the subject residential design code, the building size and bulk had been carefully configured so that the lower, smaller two storey townhouse buildings along the western and southern boundaries of the site interface with the existing residential housing at that point and the larger three storey apartment building was positioned away from those houses and near the larger existing industrial buildings to the north and north-east in Banya Street.  This layout was adopted to achieve integration of the proposal with the existing neighbourhood to avoid residents of the proposed development overlooking dwellings on adjoining land.[53]

    [51]Mr Venn’s report, Exhibit 7, page 18, page 4.1.1.

    [52]His report Exhibit 2, page 15, paragraph 53.

    [53]Exhibit 2, page 16, paragraph 54.

  1. Ms Roughan, whilst of the view that the proposal had to be assessed by considering the City Plan as a whole,[54] and rejecting the applicability of the prescriptive requirements for land in Residential Areas, nevertheless acknowledged, when dealing with Residential Area DEOs that she would have regard to and did have regard to those DEOs to enable her to understand the nature of the residential development on the southern interface of the site and more generally throughout the area.[55]

    [54]Exhibit 6, page 12, paragraph 4.5; transcript 2.37.5.

    [55]Transcript 2.38.5.

  1. This issue was approached by Mr Perkins and Ms Roughan against the background of the reality that, whilst the surrounding area contained low residential housing, its land usage was mixed, including industrial uses.

IS THE PROPOSAL THREE OR FOUR STOREYS?

  1. The appellants suggested that the building was not a three storey but rather a four storey building because the basement extends above the natural ground level.[56]

    [56]Transcript 2.50.25.

  1. Given that this issue arises because of Mr Venn’s application of the abovementioned Residential Design Code, which I have found to be inapplicable to the assessment of the proposal, there is no need for me to deal with this issue.

  1. In any event, if the issue was alive I indicate that I would regard the building as a three storey building having regard to the definition of “storey” in the Planning Scheme.  Further, Exhibit 2, the photo montage shows that the building is a three storey building notwithstanding the fact that part of the basement area extends above the ground level.

Increased traffic volumes

  1. There was some evidence that the proposal would decrease the industrial traffic to the site but increase the residential traffic.  Mr Venn was of the view that any adverse impact would not be unacceptable and would not be a reason for refusal of the proposal.[57]  There is nothing to support the view that any increased traffic volumes would have an adverse impact on the amenity.

    [57]Transcript 2.105.40-55.

OVER-DEVELOPMENT OF THE SUBJECT LAND

  1. Mr Venn considered the proposal represented a considerable over-development of the site in its locational context for these reasons[58]:-

    [58]Exhibit 6, page 31, paragraph (xi) of joint report of experts.

“(a)it represents a population density of more than three times that represented as typical of the local and wider area;

(b)the apartment building is a four storey building in an area typified by buildings of one and two storeys;

(c) the proposed building is to exceed 11.5 metres in height which is three metres higher than the Low Density Residential Areas Acceptable Solution limit and more than three metres higher than typical buildings of the local and general area;

(d)a gross floor area is proposed of almost 0.9 which equates to a higher level than that of Medium Density Residential Area (Acceptable Solution 0.8) and exceeds by a considerable margin that which characterises the Low Density Residential Areas (0.3) and the Low-medium Density Residential Area at 0.5 or 0.6 if favoured by  particular locational advantages (which the subject site does not share);

(e)the bulk of the apartment building, being the only one in this locality is considerable and out of character;

(f)there is no justification for increasing the size, height or density such that it is inconsistent with the character of the area.

  1. It is obvious from the above foundations for his view, that Mr Venn was relying upon the Residential Design Code which I have found to be inapplicable.

  1. Mr Perkins in his report[59] outlined the indicators of negative impacts resulting from over-development namely:-

    [59]Exhibit 7, page 22

(a)        insufficient setbacks;

(b)        insufficient provision of landscaping/private open space;

(c)        insufficient on-site parking;

(d)        complaints about the development being overbearing;

(e)        overshadowing and loss of daylight;

(f)         loss of privacy;

(g)        loss of breezes; and

(h)        loss of opportunity to articulate building form.”

None of these were said by Mr Venn to be present

I am satisfied that the evidence does not establish over-development either by reference to those negative impacts or otherwise.  I agree with and accept the evidence of Mr Perkins and Ms Roughan as reflected in the joint experts’ report[60] that the size of the site and its location provides one of relatively limited opportunities to provide higher density development and greater housing choice within the locality.

[60]Exhibit 6, page 32

BULIMBA DISTRICT LOCAL PLAN

  1. The site falls within Precinct 3.1 of the Local Plan.  As I have said it is not contentious that the Local Plan envisages residential re-development upon the cessation of industrial activity in the area. The Statement of Intent for Precinct 3.1 provides:-

“3.1Residential uses, with public parkland along the entire river frontage, will be preferred for the industrial area near Johnston and McConnell Streets, if industrial activities cease or re-locate.”

  1. It is also common ground that the Local Plan contains no specific control over residential re-development in Precinct 3.1, whereas there are quite detailed requirements in relation to Precincts 3.2 (Department of Defence Land) and Precinct 3.3 in which the Baulderstone/Hornibrook land is located.

  1. Mr Venn interpreted the omission of any such requirements for Precinct 3.1 as evidencing an intention on the part of the drafters of the plan that any such re-development would be governed by the type and density of existing development in the area.  He expressed his view in these terms[61]:-

“The subject site is included within the Bulimba District Local Plan Area.  As may be gleaned from the Precinct Map (refer to Figure 6 attached) the scope of the BDLP is quite limited – concerning itself only with specific land issues associated with the existing industrial areas (which are quite inconsistent with the surrounding development character) and the future treatment of major areas of parkland and open space corridors.  By its omission or avoidance of provisions related to residential uses, one could conclude that the Council’s Strategic Planning Department is comfortable with the land pattern and residential density and character that is the Bulimba area.”

[61]Exhibit 7, page 12, paragraph 3.5.1.

  1. In response to a question from me seeking to understand his view and by reference to those two larger areas in Precincts 3.2 (Defence) and 3.3 (Containing Baulderstone/Hornibrook land) Mr Venn explained[62] that the two situations were quite different in that Precincts 3.2 and 3.3 were of considerable size compared to the subject site which was quite an intact area.  He said  he thought the planners said to themselves in relation to Precinct 3.1, “Well we don’t envisage that anybody’s going to march” – “there’s plenty of low/medium density residential area there, we don’t evisage the development will be overtly different from the surrounds” – “the character of the surrounding area”.

    [62]Transcript 2.64.40-60 and 2.65.1-25

  1. It is a novel approach but I can see no basis for such an interpretation of the Local Plan. The drafters clearly intended some level of control over Precincts 2 and 3 and made provision in the Plan for that.  Had they intended the outcome advanced by Mr Venn, it would have been a simple matter for them to have provided for it in the plan.  Within the Planning Scheme the Local Plan is the most detailed element of the Plan and s.4.2.4 of the Strategic Plan provides:-

“Through Local Plans, Council will consult with residents of the older suburbs in progressively amending the Plan to better protect pockets of traditional houses.”

That lends force to my view that had the Council intended the outcome for which Mr Venn contends, consistent with the Planning Scheme it had the opportunity of consulting with residents and then making provision in the Local Plan.  There is no evidence of either.  I reject the interpretation contended for by the appellants.

REASONABLE EXPECTATION

  1. I have already dealt with this issue.

IMPACT ON CHARACTER

  1. I have already dealt with this issue.

BUILDING BULK, SCALE AND HEIGHT

  1. The appellants contend that because of the bulk, scale and height of the proposed building it would be inappropriate in the area.  The co-respondents point to two existing large dwellings in the area, one at 30 and 32 Banya Street[63] and the other at 81-87 McConnell Street.[64]    Mr Perkins said[65] that there were a number of dwellings with substantial site coverage given their height.  He regarded 81-87 McConnell Street as the biggest.

    [63]See photographs Exhibits 11 and 12

    [64]To be found just about the “N” in McConnell Street in Exhibit 2, page 67.

    [65]Transcript page 1.37

  1. The 30-32 Banya Street property is a partly completed house of contemporary Queensland architecture not timber and tin and Mr Perkins said it exhibited a very high site coverage.[66] 

    [66]Transcript 1.37.45

  1. From my observations from the site viewing of both the McConnell Street and Banya Street properties I agree with Mr Perkins that they display substantial bulk.  For the reasons articulated by Mr Perkins in his report,[67] I do not regard the bulk, height and density of the proposal as inappropriate for the area or in conflict with any aspect of the City Plan.

    [67]Exhibit 2, pages 17-20 together with the photo montage Exhibit 2.

  1. For the above reasons I can find no conflict with the Planning Scheme.  The appeal is dismissed and the application approved.  I adjourn the appeal to permit the Council and the co-respondent to finalize appropriate conditions of approval.


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