Stappen Pty Ltd v Brisbane City Council & Ors

[2005] QPEC 3

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPEC 003

PARTIES:

STAPPEN PTY LTD (ACN 009 857 336)
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and
BERNIE SANFT, TIGA BAYLES, CHRISTOPHER JOHN DUTKOWSKI, TRACIE ANN DEANS, JOHN DAVID DEANS, JOHN FRANKLIN AND ALISTAIR BOAG
Co-Respondents

FILE NO/S:

1291 of 2004

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

19 January 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27, 28, and 29 September 2004; written submissions received from the parties on 6, 8, and 10 October 2004

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING – APPEAL AGAINST REFUSAL OF MULTI-UNIT DEVELOPMENT IN CHARACTER HOUSING AREA IN INNER SUBURB – generally inappropriate development – conflict with Planning Scheme – relevant planning grounds – sufficiency of planning grounds.

Integrated Planning Act 1997
Brisbane City Plan 2000

Cases considered:
Grosser v Council of Gold Coast (2001) 117 LGERA 153
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587

Koerner v Council of the Shire of Maroochy [2003] QPEC 054
Trewhellar v Gold Coast City Council (1981) QPLR 17
Weightman v Gold Coast City Council (2003) Qd R 441
Westfield Management Ltd v Pine Rivers Shire Council (unreported, Planning & Environment Court Brisbane, 14 November 2003, 167/2003).

COUNSEL:

Mr W Cochrane for the Appellant
Mr T Trotter for the Respondent
Mr C Dutkowski in person for himself and on behalf of all Co-Respondents

SOLICITORS:

Brett Codd for the Appellant
Brisbane City Legal Practice for the Respondent
Co-Respondents self-represented

1. This appeal concerns the redevelopment of a present, discordant use in a “character housing” area at Dutton Park – that is, an area containing a number of traditional ‘tin and timber’ houses built before 1946.  The proposal, which involves additions to an existing building on Annerley Road opposite the old Boggo Road jail site, was rejected by Council and is opposed by a number of local residents.  The core of the dispute involves the size and style of the proposed development, and whether it would be in conflict with the relevant provisions of the Town Plan, Brisbane City Plan 2000, and out of character with the existing older homes.

1. The relevant parcel is located at the corner of Annerley Road and Grantham Street, Dutton Park and has frontages to both, with vehicle access from Grantham Street.  It contains 1,801m².  The land slopes almost 6m from its highest point at the street intersection (south-east corner) to its low point in the rear north-west corner.  It presently contains a brick commercial building, in the style sometimes called “modernist functional”, with suspended slab construction resting at ground level at the street intersection but with an excavated and sealed car park undercroft taking advantage of the sloping ground level, so that it is two storeys high where it faces adjoining properties to the west and north.  It was constructed in the early 1970s, and used as a social club in various guises until about 1999.

1. Since then it has been used for professional offices without, it appears, Council approval.  The appellant’s development application firstly sought approval for a material change of use to regularise the office activities, and that was not opposed.  A further redevelopment proposal, which excited this appeal, seeks permission to add two residential storeys above the existing building, containing eight residential units of two storeys each.  These units would have an average floor area of 147m² and, with the existing office structure, result in a total gross floor area (GFA) of 1,770m².  The occupants of the units would use the existing car park (with some alteration), and the professional offices would continue to operate on the existing first level.  At its highest the proposed new building is 12.2m above ground level, and four storeys.  The proposed GFA is 98% of the site area.

1. The existing building and the surrounding area were the subject of an inspection and both it and the proposed development can be readily appreciated from photographs and photomontages appearing in Ex 11, and in Appendix 2 to the report of the architect called by the Appellant, Mr Gough[1].

   [1]Ex 4.

1. The fact the current office use is unlawful has little immediate relevance to the appeal and was not relied upon by the Respondents.  As Row DCJ said in Trewhellar v Gold Coast City Council[2]:

Whilst the action of the Appellant in establishing the use without the approval of the Council cannot be condoned, the commencement of the use without the approval of the Respondent is not a matter which should in any way prejudice consideration of the appeal.

[2](1981) QPLR 17,18

1. Indeed, Council went further.  It conceded that the use of the existing building for office purposes was a sensible and practical outcome and the building ought not be demolished; and, importantly, that it had no objection to some residential use in association with the office activities – but, it contended, the size and scale of the proposed development was excessive.  In his written submissions Counsel for the Appellant suggested the Respondent Council had indicated a preparedness to accept a development involving six residential units on one, not two additional floors above the existing office premises but I did not understand the Council to have gone so far and, rather, that it might have no objection to something in the vicinity of four additional units, on one extra floor[3].

   [3]  A concession specifically made by Mr  Trotter of Counsel in written submissions in reply to those of the Appellant.

1. Council refused the application for a variety of reasons, centred principally around particular elements of City Plan 2000:  Desired Environment Outcomes (DEOs), both city-wide and concerning, in particular, character residential areas; building criteria applying to structures in residential areas, including Codes applicable to the proposed parking arrangements underneath the building; and, specific criteria applying when a development does not accord with anticipated uses in an area and is categorised, under City Plan 2000, as “generally inappropriate impact assessable development” (the criteria are set out in City Plan 2000, Vol 1, Ch 3 at p 6)[4].

   [4]The full grounds of refusal, 11 in all, appear in Ex 8, Appendix 4.

1. As the case fell out, the primary issues became:

(a)Whether or not the proposal was in conflict with provisions of the Planning Scheme including Desired Environmental Outcomes, both city-wide, and relating to this particular area.

(b)Similar questions of conflict with the particular classification of this area as “character residential”; and, Scheme provisions relating to generally inappropriate impact assessable development.

(c)Car parking.

(d)The extent of the conflict, and whether or not there are sufficient planning grounds to approve the proposal despite any conflict:  Weightman v Gold Coast City Council (2003) Qd R 441.

Questions of possible conflict with the Planning Scheme encompassed matters usually collected under the word “amenity”: namely, the visual impact and affect of the proposed building, its effect on nearby residents in terms of overlooking, privacy and shadowing, and noise; and, the size and scale of the proposed development and whether it “complemented” existing character housing.  The Co-Respondents, local residents, were vigorous in their assertion that the proposal was quite discordant with existing “character residential” housing and was not beneficial to the present tenor of the area, which is to be preserved under City Plan 2000[5].

[5]Ex 13.

1. The Appellant’s case attached particular weight to the location of the relevant property on a busy arterial road, Annerley Road, and the presence nearby of a number of buildings and features on Annerley Road, and Grantham Street and Gladstone Road which, it was said, militated against the conclusion that the area presents or maintains a pristine ‘character residential’ nature.  It was also submitted that other factors supported the proposal: first, that it was sensible and appropriate (and in accord with principles of economic and ecological sustainability, and sound economic development[6], and DEOs) to preserve the existing building, and re-use it in a practical way; and secondly that location of the property, being on the very edge of the character residential precinct, and situated on a major traffic route, and opposite areas intended for quite different use meant that it should be seen not, necessarily, as an integral part of the “character housing” area but, rather, as one where a ”transitional” use could sensibly be permitted. 

   [6]Integrated Planning Act 1997, ss 1.2.1, 1.3.3, 1.3.6.

1. These views were espoused by Mr Buckley, the town planner called by the Appellant and Mr Gough, its architect but discounted by Mr Brown (the town planner called by the Respondent) and Mr Panaretos (the Co-Respondents town planner), and Mr Scott, the architect called by the Council.  The experts differ as to the appropriate methodology or benchmark for assessment of the proposal, the size and scale of any building which should be permitted on the land, and the impacts the proposed development would have upon adjoining owners  There was, at least, consensus that one additional residential floor would not be inappropriate.

1. At present the land is confronted, on the opposite of Annerley Road, with the old Boggo Road jail complex, Dutton Park Police Station and the State Archives.  The Dutton Park Railway Station is 400m distant, and the local State School lies to the north.  Plans are afoot to develop the jail site with modern apartment buildings and the like.  There is a bus stop immediately adjacent to the subject site and the proposed intensive development on the eastern side of Annerley Road, the use of that road as a major transport corridor, and the presence of the railway line, the nearby Dutton Park ferry and, perhaps, a new bridge across to the University all indicate the district, relatively close to the city, is likely to be much more heavily populated in future.

1. The western side of Annerley Road, including the subject land is not (as a view, and the photomontages, confirm) overwhelmingly redolent of the expected features of a “character residential” area.  Travelling north from the Annerley/Gladstone Road intersection there is a hospice conducted by the Multiple Sclerosis Society, a Ribbetts restaurant and takeway shop, the subject property, three fairly dilapidated older houses, a large vacant site formerly occupied by a biscuit factory and, down to the railway bridge across Annerley Road to the north, a series of residential properties over two blocks interspersed with a shop, and a small block of units.

1. The streetscape on the southern side of Grantham Street also differs considerably from what might ordinarily be expected in a “character housing” precinct.  It contains properties owned by the Multiple Sclerosis Society and a large car park and industrial site operated by Canon.  The north side contains some traditional housing but as the photomontages, again, show there are a number of “non-character” intrusions including apartments, and new brick houses.  Of the 15 properties on the north side of Grantham Street between Annerley Road and Lochaber Street to the west, only about eight appear to be of the classic pre-1946 design or construction and a number have undergone substantial modifications to their building fabric and detailing so that, it is fair to conclude, the majority do not evince the classic “tin and timber” aspect. 

1. The next street to the north, Walton Street, does however contain housing incorporating these features and it is clear that a number have been the subject of renovation to restore them to something like their original structure – the opening out of enclosed front verandas, the use of traditional colours and the like.  There is less indication of this occurring in Grantham Street but it is, of course, a steady and ongoing process, and not unlikely there.  Nevertheless for present purposes the Appellant’s submission that Grantham Street does not present or maintain anything approaching an appearance of relatively pristine character residential development must be accepted.

1. The Appellant also sought comfort from streetscape on nearby Gladstone Road, at the south-western boundary of the character residential precinct and, as the view confirmed, very little character residential property remains on the north side of Gladstone Road and the development there is, in the major part, multi-unit dwellings of up to four storeys on, again, a major arterial road and, it was submitted, serving as a form of transition to the character residential properties behind it, to the north.

1. City Plan 2000 is a large and complex document which, inevitably, contains a number of provisions touching this area, and this property.  The proper construction of planning schemes promulgated under the Integrated Planning Act 1997 is an exercise involving, inevitably, questions of weight and emphasis to be given to different parts of the Scheme in which, again almost inevitably, parties are usually able to find supportive statements. The proper approach to their analysis was considered by Skoien SDCJ in Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313, at 318:

It is appropriate to set out some recorded judicial comments in relation to the application of statements in planning documents, which include Strategic Plans:-

(a) It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare that an express imprimatur or injunction can be found in them for a particular proposal. Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law by s.2.15(9) of the Local Government (Planning and Environment) Act 1990 [see now s.2.1.23 of IPA] are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected. So such statements should be read broadly.” Degee & Anor. v. Brisbane City Council & Anor [1998] QPELR 287 at p289.

(b)   A strategic plan only sets out broad desired objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted (see Lewiac Pty Ltd v. Gold Coast City Council [1994] 83 LGERA 224 at p230; the interpretation of the strategic plan ought to involve a “common sense approach” (see Z.W. Pty Ltd v. Hughes & Partners Pty Ltd [1992] 1 Qd.R. 352 at p360); in interpreting a strategic plan the document should not be read too narrowly; it should be read broadly rather than pedantically; and one should adopt a sensible practical approach (see Yu Feng Pty Ltd v. Maroochy Shire Council [1996] 92 LGERA 41 at p.73, 75 and 78); to enliven the provisions of s. 4.4(5A) [of the P&E Act] a conflict must be plainly identified and, in any event, such a conflict alone may not have the result of ruling out a particular proposal (by virtue of s.4.4(5A) see Fitzgibbons Hotel Pty Ltd v. Logan City Council [1997] QPELR 208 at p212.[7]

[7]  And see the other cases collected by Britton SC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council (unreported, Planning & Environment Court Brisbane, 14 November 2003, 167/2003).

1. The Scheme contains a number of Residential Area classifications[8] of which the “character residential” is the most limited and comprises only about .6% of the area of Brisbane, generally older residential areas close to the city centre.  These areas are subject to demolition control and are addressed in these terms:

   [8]Ch 3, Pt 5.

The different residential areas reflect different living environments envisaged in different parts of the city … an important characteristic of the city’s older suburbs is the “timber and tin” architecture[9].

A DEO specific to these areas[10] says:

The character residential area will primarily accommodate pre-1946 houses.  New houses, single unit dwellings or multi-unit dwellings will incorporate the pre-1946 dwelling in the development wherever possible and will reflect pre-1946 architectural themes.   Additional development will be at Low Intensity and at a compatible scale to existing dwellings, at a rate of one dwelling per 300m² of site area and a strict adherence to a maximum gross floor area of 50% (my emphasis).

[9]Ch 3, p 27.

[10]Ch 3, Pt 5.1, DEO 4.

1. There is a clear emphasis, in the Intent[11] and the DEOs[12] for the character residential areas, on new buildings being of no more than two storeys and “strongly” reflecting the city’s pre-1946 character housing.  This emphasis does not appear in any of the other categories of residential area, and plainly reveals that significant weight is to be given to the maintenance of the character of these areas.

   [11]Ch 3, Pt 5.3.1, p 32.

   [12]Ch 3, Pt 5.3.2.

1. Otherwise, City Plan 2000 provides that a proposal subject to impact assessment, as here, is to be assessed against the whole Planning Scheme including relevant Codes in Ch 5, and “cannot be approved if it comprises the achievement of the DEOs for the area in which it is located”[13].  Where, as here, the particular proposal is not specifically envisaged in a particular area it is to be assessed against particular criteria[14] as “generally inappropriate impact assessable development”:

   [13]Ch 3, s 2.5.2.

   [14]Ch 3, p6.

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

·     The character, location, siting, 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 the amenity of the locality.  These effects may relate to issues such as hours of operation, display of goods or release of any contaminant.

…

·     Where the proposal is of a nature or a scale not reasonably expected in the area in which the land is classified, that sufficient land is dedicated for public open space to offset or mitigate impacts.

…

·     Negative community impacts are not generated, including impacts on:

-community identity, cohesion and cultural practices

-community health and wellbeing

…

-housing choice, mix, cost and location.

1. The proposed premises would be used for mixed purposes and the definitions of “office”, “multi-unit dwelling” and “mixed use” premises (incorporated in City Plan on 1 July 2004, but plainly relevant here)[15] make it clear the criteria set out above apply and, also, that the proposal is subject to assessment against certain Codes – here, the Residential Design – Low Density, Character and Low-Medium Density Code and, because the property is located in a demolition control precinct, the Residential Design – Character Code[16]. 

   [15]Mr Brown’s report Ex 8 pp 4-5.

   [16]Ch 3, p 31.

1. The Codes (Low Density, Character and Low Medium Density) relevantly provide:

As the areas to which this Code applies will contain a mix of houses and multi-unit development, the purpose of this Code is to effectively manage impacts of the new development of neighbours while:

·     Ensuring new development is compatible in scale and design with neighbouring houses.

·     Retaining pre-1946 dwelling in character residential areas with new developments at low intensity in keeping with pre-1946 architectural themes.

·     Retaining pre-1946 dwellings or ensuring new development in demolition control precincts is in keeping with pre-1946 architectural themes.

·     Encouraging multi-unit development that provides a pleasant living environment for its occupants (my emphasis).

1. The Character Code[17] is intended to:

·     Encourage development in demolition control precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing.

·     In conjunction with the Demolition Code, ensure that precincts of pre-1946 houses are retained and re-development in those precincts complements the pre-1946 houses (my emphasis).

[17]Ch 5, p 147.

1. Elsewhere, the Planning Scheme provides broad, city-wide Desired Environmental Outcomes emphasising such things as sympathetic development, enhancing the character of existing, surrounding areas, preventing the intrusion of development that might seriously detract from residential amenity, and ensuring new residential development integrates with existing development.  Each of the town planners emphasised elements of these broad-scale DEOs including, for the Appellant, those which place weight upon development which enhances the efficacy of transport links, and social and housing diversity and variety and, for the respondent, others which place importance upon maintenance of neighbourhood character, and preventing the intrusion of discordant development which might detract from residential amenity.  Mr Trotter of Counsel, for the respondent, sought to draw a distinction between DEOs which apply on a city-wide basis and those which are particular to the character residential area, and it is logical that the latter are entitled to greater weight. 

1. In both, however, there is emphasis upon “sympathetic” development which “complements” the existing housing character and much time was devoted in the evidence of the architects, Mr Gough and Mr Scott, to the question whether this proposal achieves that end.  Their disagreement had two elements:  the extent to which new buildings in a “character residential” area should use the building and design techniques and style of pre-1946 housing; and, whether or not this building could be said to ”complement” that style.  Mr Scott, who has considerable experience with heritage housing fairly conceded that it was appropriate to retain the existing building and that factor placed some inhibition upon matters of style and design, but ultimately concluded that it failed a test of compatibility with homes of traditional character.  Mr Gough, not surprisingly, thought he had achieved the desired balance between old and new styles and materials.  He deplored “blind replication” as inimical to the natural pattern of human development, and architecture.

1. These are interesting questions, but not the primary ones here.  Mr Gough’s evidence and the photomontages persuaded me that he has done his best to achieve a complementary effect and, indeed, that the proposed building involves clever, interesting and attractive features which go a good way to meeting the complementary requirement in the sense that they call up or evoke, without slavishly imitating, the older buildings.  More problematic and troubling, however, is the bulk and scale of the building which, at its highest point, exceeds by 50% the height limits imposed by the Codes and is well above limits upon the density of development.  On the higher, Annerley Road side the effect is not dramatic but from the lower properties on Annerley Road and in Walton and Grantham Streets the proposed building presents as very high, with the effect that it looms over the surrounding, lower character housing.  It is this excess of size and scale which tells against a finding that the proposal truly complements existing housing, or the designation for the area and, I am satisfied, it fails to comply with DEOs 3.3.2.2 and 5.3.2.2[18]

   [18]and, see, City Plan 2000 Vol 1, Ch 2, p 17, s 4.2.2.1.

1. The Appellant reasonably pointed to the fact that the demolition of the existing building and its replacement with new character residential housing complying with the relevant Codes would permit the construction of six residential units which, in accordance with those Codes, might be built as close as 1.5m to adjoining properties; and, the Appellant contended, design features of the new building, and landscaping and proposed fencing meant that, comparatively, this proposal would involve less intrusion for the neighbours. The submission (while relevant in the sense that the preservation of the existing building must entitle the Appellant to the benefit of a degree of flexibility in the application of the requirements of the Planning Scheme) ignores the effects of height, size and scale upon which the Scheme plainly places considerable importance[19].  While these parts of the Scheme[20] cannot be absolutely prescriptive, they provide a clear guide to the criteria which, the Planning Scheme anticipates, will ordinarily apply in areas of this kind.

   [19]Ch 5, pp 147-150, and 165.

   [20]The ‘Acceptable Solutions’

1. The designation of the area within the character residential classification, overlaid with demolition controls, reveals a clear and strong intent in City Plan 2000 to preserve the existing character of the area.  Significant non-compliance with suggested limits on height and density indicates, firstly, that the proposal faces serious hurdles before it could be described as having a positive impact on the streetscape[21] or that could establish that it “accords with the reasonable expectations and DEOs for the area in which the land is classified”; and, secondly, that when the question of conflict with the Planning Scheme arises the discrepancy is likely to be categorised as of a serious, or significant kind.

   [21]Generally inappropriate impact assessable uses.

1. Other Codes also touch parking requirements and traffic experts, Mr Brameld and Mr Beard, disagreed whether the existing parking arrangements could be adapted in a way which would satisfy the requirements of the occupants of the eight residential units, and meet those Codes.  Mr Beard’s views, while in accord with the terms of the Scheme requirements seem to me to involve a very technical and pessimistic view of existing parking arrangements and their amendment and Mr Brameld’s evidence persuaded me that, although the car parking layout is inevitably constrained by the existing built form it can fairly and sensibly be adapted in a way which would make it workable.  I was not persuaded any difficulties which might arise in respect of parking constituted a serious conflict with the terms of the Planning Scheme.

1. The Integrated Planning Act 1997 s 3.5.14 provides, relevantly:

…

…

(2)     If the development is for a development in the Planning Scheme area the Assessment Manager’s decision must not –

(a)compromise the achievement of the Desired Environmental Outcomes for the Planning Scheme area or

(b)conflict with the Planning Scheme unless there are sufficient planning grounds to justify the decision.

1. The sub-section distinguishes between DEOs and their possible “compromise”, and “conflicts” with the Scheme.  Of the former, it has been said that City- or Shire-wide DEOs, being very broadly based, may rarely be the subject of compromise[22] but, here, there are specific DEOs applying to this area[23] and I accept that, as Mr Trotter submitted, it is appropriate to distinguish between the weight to be given to them as opposed to the broader, city-wide provisions.  This analysis is supported by the Scheme[24], which makes reference to these narrower DEOs in these terms:

These DEOs describe the desired end state for all land in the relevant area.  Impact assessable development in the area must not compromise the achievement of the DEO for that area.

Mr Trotter submitted that, when these “local”, specific DEOs affect a proposal the word “compromise” has a meaning closer to “conflict”.  The actual word used cannot be ignored, but I accept that when there is an appearance of a compromise of the specific, smaller scale DEOs for a particular area more weight and importance should be attached to that than would ordinarily be attracted by the large scale, city-wide DEOs appearing in earlier parts of City Plan 2000.

[22]Koerner v Council of the Shire of Maroochy [2003] QPEC 054, at para [25].

[23]Integrated Planning Act 1997, s 2.1.3.

[24] Ch 3, p 7

1. The impact of the proposal and the degree of seriousness of any conflict with Planning Scheme provisions was said by Mr Buckley to be diminished because existing development in the vicinity is not homogenous, and because the property is at the very edge of the character residential area, warranting a different approach.  Both propositions involve fundamental principles of planning law.  Ultimately the exercise involves discerning, from the verbiage of the Scheme, the degree of importance it attaches to compliance with particular principles, requirements or Codes and, then, analysis of the particular proposal within that regimen.  This is another way of expressing the test suggested by Atkinson J in Weightman[25], which requires an identification of the nature and extent of any conflict and, if it arises, an attempt to identify any planning grounds which might be relevant to it and, finally, whether those planning grounds outweigh the degree of conflict.

   [25]Supra.

1. For historical reasons it is rare to find an area which perfectly reflects the character and amenity which planning schemes ascribe to it.  Planning Courts are shown, in the majority of cases, concrete examples of structures and developments which are plain aberrations from the designations attached to particular locales and often, as here, presented with a multiplicity of factors and elements in a district which, fairly, lead expert witnesses to advance opinions of the kind presented for the Appellant here.  In the face of those opinions and the evidence of discordant development  which vividly confronts the court, the critical question becomes the weight to be given to planning schemes which, as these aberrations and extraneous factors show, must be said to involve aspirational elements in the sense that they are predicated upon or, in a sense, anticipate or predict an homogenous character for an area when the reality falls short of that.

1. Recent decisions make it clear, however, that if these “real-world” factors and discrepancies are to be taken into account that will, ordinarily, only occur if the local authority has itself diverted from the intent expressed in the Planning Scheme, or the subject land has been given a designation that was, and remained invalid[26] and, otherwise, planning schemes under the Integrated Planning Act 1997 are acknowledged to reflect not just present use, but future planning intent and aspirations and, for that reason, the proper approach of this court to matters of planning policy must be one of restraint[27]. 

   [26]Grosser v Council of Gold Coast (2001) 117 LGERA 153, per White J at 165.

   [27] Grosser (supra) at 163.

1. It cannot be said the designation of this area for character housing is invalid or has been overtaken by events merely because some discordant structures have, in the past, been permitted, or that they signify a diversion from the planning intent for the district.  Once that is acknowledged, it must follow that the provisions of the planning scheme are entitled to their full weight and effect.

1. I am satisfied that the height and gross floor area and, therefore, the size, bulk and scale of the proposed building is in conflict with provisions of City Plan 2000 relating to residential areas, the intent and Desired Environmental Outcomes for the character residential area and the Codes relating to Residential Design – Low Density, Character and Low Medium Density Code.  The limits placed upon the scale of buildings in this character residential area are clear and the degree of conflict with these provisions is, plainly, serious.

1. There are some matters, fairly categorised as planning grounds[28] which are said to be relevant to areas of conflict and, by the Appellant, to overcome them.  The Appellant referred, again, to the “transitional” nature of the properties on Annerley Road itself (like Gladstone Road) and various existing developments in the area which are not consonant with the Planning Scheme designation for the district, but these are better described as factors which might affect the degree of seriousness of any conflict with the Planning Scheme rather than supportive planning grounds, which the test requires.  Otherwise, the Appellant advanced these specific grounds:

   [28]  As to the meaning of the term “planning grounds”, see Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587 (at 592).

(a)the proposal involves the recycling in an environmentally sound way of an existing building;

(b)the streetscape in which the proposal will be located is a far from pristine character residential area with the presence of the Canon Distribution Centre, the Multiple Sclerosis Society and Ribbets on the eastern side of Annerley Road being prominent in intruding into the residential character and the developments of Boggo Road and the police station on the eastern side of Annerley Road being influential in any perception of the proposed development;

(c)the proposal involves an increase in height of a building which is set back further from adjoining residential uses to the west than would be achieved by any complying development under the current City Plan 2000;

(d)the proposal does not result in any substantial off-site traffic conflicts or impacts on amenity from motor vehicles.  It is acknowledged that there is some difference between the traffic engineers as to on-site conflicts with traffic and parking but those are not matters which have an impact on the wider community;

(e)the proposal represents an opportunity to provide a sensible transitional “barrier” between the high intensity use of Annerley Road and the rather quieter low-intensity use on the north side of Grantham Street;

(f)the proposal represents a sensible use of an existing resource;

(g)the proposal involves a lower impact use on the subject site than the use which has previously been approved, namely that of a licensed club.  The site and the proposal for utilisation of it is well-positioned to take advantage of existing public transport as well as the proposed development on the Boggo Road site which is intended to facilitate utilisation of the Green Bridge project adopted by the Brisbane City Council;

(h)the proposal represents an element of improved residential housing choice on a location closer to the central business district and other inner city, commercial and retail areas;

(i)the proposal represents a development consistent with the notion of higher densities of development for residential purposes in or near to the CBD on sites which have good access to public transport.

1. Of these (a), (f), (h) and (i) gain varying level of support from parts of the Planning Scheme; (c) and (d) are essentially neutral, I think, in the sense that there is no evidence of any serious existing adverse impact, although the suggestion that development might sensibly go up, rather than out towards the boundaries does not find favour in the Planning Scheme; (b) and (e) manifestly rely upon the existing discordant uses, which, for the reasons given earlier, are not a basis for supporting the proposal; and there is no evidence that a barrier between Annerley Road and the character housing area is essential, or even necessary (or that, if it is, the same cannot be achieved by a compliant structure); and, (g) is redundant, there being no suggestion the premises might be reused as a licensed club.

1. The balancing exercise required by Weightman involves weighing the seriousness of the conflict against the strength of relevant, supportive planning grounds.  Here, the conflict is, I am satisfied, towards the major end of the scale.  Those planning grounds which might be said to be relevant and favourable sit palely against the quite significant conflict and, even viewed in the most generous light, fall short of compelling the view that they overcome that conflict.  The appeal should be dismissed.