Stevens v Brisbane City Council

[2005] QPEC 43

PLANNING & ENVIRONMENT COURT
  OF QUEENSLAND

CITATION:

Stevens & Ors v Brisbane City Council & Anor [2005] QPEC 043

PARTIES:

YURI STEVENS, ANTHONY FITZPATRICK,
BEVAN T DUNSTAN, PETA NOELENE ASHWORTH, OWEN SYKES, TUULA SYKES, PAUL DE VERE STEVENS, ROBERT SNEYD, MARY SNEYD,
NOEL SOLOMON, OLIVE WRIGHT, ELIZABETH CHRISTIANSEN, S EUSTACE, R NIXON,
IRENE DAVIES, GUY CORNELIUS, BRUCE TAYLOR,
LINDA ANDERSON, JUSTIN BURSTALL,
JOAN MCCORMACK, BRIAN PENDRIGH,
LAURIE DEAMBROSE, MERVYN STANFORD,
EARL GRAY, FRANK C FIEN, TERRY MCINTYRE, NICOLE MCINTYRE, JOHN KELLY,
ANNETTE KELLY, DAVID TENNYSON,
IDA MCDONELL
Appellants

v

BRISBANE CITY COUNCIL
Respondent

and

NEO LIDO PTY LTD
Co-Respondent

FILE NO/S:

Appeal No BD2925 of 2004

DIVISION:

Appellate

PROCEEDING:

Appeal by adverse submitters

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

1 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18, 19, 20, 21 April 2005, written submissions to 24 May 2005

JUDGE:

Robin, QC, DCJ

ORDER:

Appeal allowed, conditions to be reviewed

CATCHWORDS:

MATERIAL CHANGE OF USE APPLICATION TO MULTI-UNIT DWELLING FROM LOW-MEDIUM DENSITY RESIDENTIAL – ADVERSE SUBMITTERS’ APPEAL – Live issues included traffic (access), setbacks and proper calculation of gross floor area (GFA) – use of narrow lane as sole access for vehicles to development site with a frontage to Moray Street, New Farm considered unsuitable – safety concerns – issues to do with gross floor area included treatment of stairs external to a proposed building and what constitutes a “lobby” (not included in GFA) – no element of public or shared use – site area held to include whole of adjacent parcels proposed to be amalgamated, notwithstanding that new development was to be confined to one of them, whose useful area could be regarded as less than its measured area because of long “handles” providing access to Moray Street and one of the lanes (running parallel), the latter “handle” presently an easement serving multiple dominant tenements and proposed to be dedicated as a road – whether such easement deprived the dominant tenements of “frontage” for purposes of calculating setbacks

Cases cited:
A & I Holdings Pty Ltd v Brisbane City Council [2002] QPEC 072
Colless v Brisbane City Council [1984] QPLR 235, 241
Crane v Brisbane City Council [2003] QPEC 025
Jackson & Ors v Redland Shire Council & Anor [2003] QPEC 062
Livingstone Shire Council v Hooper & M3 Architecture(Architects in Association) & Ors [2003] QPEC 063
Tod v Brisbane City Council [2003] QPEC 055

Walker v Noosa Shire Council (1983) 2 Qd R 86. 90

COUNSEL:

Mr Y Stevens for the Appellants (self-represented)

Mr T Trotter for the Respondent

Mr P J Favell for the Co-Respondent

SOLICITORS:

Mr Y Stevens for the Appellants (self-represented at hearing)

Brisbane City Legal Practice for the Respondent

No solicitors for the Co-Respondent (Direct brief from Kevin Hayes Architects)

1. This is an appeal by 30 or more adverse submitters against the Council’s approval subject to conditions of a development application for:

“Material Change of Use and Carrying Out Building Work (Development Permit and Preliminary Approval) – Multi-Unit Dwelling, Demolition, Building Work on Land Adjoining a Heritage Place and Building Work on the site of a Heritage Place.”

- to quote Council’s Development Approval Package.  The site is at 86-88 Moray Street, New Farm and is made up of Lot 1 on RP 54179 (1108m²) and Lot 2 on RP 54179 (1120m²).  The Appellants’ case was presented by the First Appellant,        Mr Stevens, in person, following the withdrawal of their solicitor on the record.  The 22^nd Appellant, Mr Deambrose has passed away.  At the beginning of the hearing, an order for removal of his name as a party was successfully applied for by Mr Lee, who appeared as Solicitor for the Executor. 

1. Lot 1 contains a large house called “Moana”, constructed in 1886 for Theodore Unmack, a local businessman who was a member of Sir Samuel Griffith’s Cabinet; his original holding of two blocks aggregating 1,690m², purchased in 1885, was more than doubled the following year and extended to Gilbey Lane which runs parallel to Moray Street.  Allom Lovell’s appraisal of Moana, while having little favourable to say about the architects, says that, although smaller than some of its neighbours, it “was clearly a substantial and important house.”  He says:

“Moana is culturally significant as one of the larger masonry residence from the late nineteenth century.  It demonstrates that period of New Farm when the suburb in general and Moray Street in particular accommodated politicians, businessmen and high ranking public servants.  It is one of the few surviving residences from this period of Moray Street’s development. The house has aesthetic value and makes a positive contribution to the streetscape of Moray Street.

The setting of the house with the generous setback from Moray Street has significance.  The small cottage constructed in the early twentieth century [very close to the rear of the eastern side verandah of Moana] is not so important.  Although some changes have been made since its first construction the house is largely intact.

Moana has a special association as the house of Theodore Unmack.”

Moana deserves its inclusion in the Council’s Heritage Register.  Its retention and reversal of alterations (such as enclosing of side verandas to facilitate conversion to flats) are to be welcomed.

1. Subdivision of the Unmack land has been associated with the construction of the   L-shaped Bowman Lane.  The longer section runs from Gilbey Lane towards Moray Street, but not so far.  The lane turns sharply to the east to connect with Langshaw Street.  Its function has been to provide rear access to some properties in Moray Street, as well as to properties in Langshaw Street to the east, and in Locke Street to the west (both streets of substantial width – Langshaw is wider – coming off Moray Street and parallel to each other).  The traditional function of a lane of providing access for horses, now vehicles, at the rear of residences (the 7^th Appellant mentions “nightcarts” in his submission), is the one that has been served here.  Bowman Lane is very narrow (the reserve width is no more than 4m) and carries no services.  The right angle bend, replete with a large telegraph pole and hard vertical surfaces on both sides, presents a real challenge to drivers.  More concerning is the situation where the lane as the stem of a “T” joins Gilbey Lane at right angles.  Buildings, fences and vegetation compromise drivers’ ability to see.  Gilbey Lane is hardly any wider than Bowman Lane.  The Co-Respondent developer’s traffic engineer, Mr Pekol (at transcript p 90) accepted it was “approximately 4m along its length – not wide enough for two cars to pass”.  Both lanes, despite being of single car width only, cater for traffic in both directions.  The lanes, rather than the site’s address of Moray Street are proposed as the sole access to and from the site for five of the seven households envisaged.

The Application

1. The gravamen of the Co-Respondent’s development application was set out in the Executive Summary in Humphreys Reynolds Perkins’ accompanying Town Planning Report:

“A   Site Details

ADDRESS:86-88 Moray Street, New Farm, 4005         

LOT DESCRIPTION:     Proposed Lot 1 on SP160022 (currently Lots 1 and 2 on RP54179)

STRATEGIC PLAN:    Residential Neighbourhoods

AREA:Low-medium Density Residential Area

LOCAL PLAN:          New Farm and Teneriffe Hill Local Plan

TOTAL SITE AREA:     2,238m²

B   Application Details

APPLICATION:        Development Permit: Material Change of use – Multi-Unit Dwelling and Demolition

PROPOSAL:The proposed development has three components.  These are as follows:

·   three new attached houses at the rear of the site near Bowman Lane;

·   refurbishment and extension of the existing rendered masonry dwelling (2 registered flats) at the rear of the site; and

·   demolition of the existing shed/garage at the rear of the site.

DEFINITIONS:        Multi-Unit Dwelling as defined in Brisbane City Plan 2000 – Chapter 3.

OWNERSHIP:         Giorgio and Assunta Luisa Tosoni

APPLICANT:           Neolido Pty Ltd.”

1. Lot 1 is hatchet shaped, but with two handles, one from the south-west extending to Moray Street in the south, the other from the north-east, extending to Gilbey Lane, having the effect of increasing the Bowman Lane frontage from about 24m to 60m or 70m.  The balance of Bowman Lane south of Lot 1 is 17m or so, taken up by    Lot 2.  The Moray Street handle is said to be 3.66m wide.  Lot 2 represents the extension of Lot 1 to Moray Street, disregarding the 3.66m wide handle, which is a little over 29m long.  The longer eastern boundary of Lot 2 is a little over 49m.  To the east of Moana, which is set well back from Moray Street, and tightly jammed between Moana’s eastern veranda and Bowman Lane (from which there is no setback) is a venerable, but plain worker’s cottage.  It faces Moray Street; its side façade which is right on the Bowman Lane alignment has little visual appeal.  The proposed new attached houses will be close to it, facing Bowman Lane, also with no setback, except for a 0.9m private footpath at ground floor level.  The flats, in a single level pre-1946 house described as the “duplex” during the appeal, are to have an upper storey added.  The shed/garage is a plain timber and tin structure (more attractive than the cottage in my opinion), constructed right on the boundary of the lane.  The attached houses will replace it.

The appeal issues

1. As summarised by Mr Favell (for the Co-Respondent):

“The issues in the appeal are contained in Exhibit 14, the amended notice of appeal.  Grounds 1 to 3 deal with the issues of gross floor area.  Ground 4 deals with adverse impact on the heritage place and neighbouring development.  Ground 5 concerns the issue of setback.  Grounds 6 and 7 concern a traffic issue.  Grounds 8 and 9 which deal with the location of a hydrant booster are no longer relevant.  Grounds 10, 11 and 12 which concern refuse disposal are no longer relevant.  Ground 13 concerns the carrying out of condition 24, namely, the dedication of the existing easement to road way.”

The issues that have gone away are ones where it has been accepted that the complaints of the Bowman Lane community about aspects of the Council’s approval should be accepted by relocating proposed intrusions to Moray Street or Gilbey Lane.  As to Ground 4, the Appellants presented no evidence.  Mr Mulcahy’s evidence supported the proposal, which is far different from its much larger (taller) predecessor which was considered to dominate Moana and other existing development.  There is no basis for the court’s harbouring concerns arising from Ground 4.

Amalgamation – what is the “site”?

1. The Town Planning Proposal Report accompanying the development application referred to the proposed amalgamation of the two parcels constituting the site.  Condition 6 of the Development Approval Package requires amalgamation “prior to site works/building works” commencing.  Paragraph 3.2.1 of the Report describes gross floor area (GFA) as 2,209.47m², representing a plot ratio of 0.54, calculated on the amalgamated site areas.  The amalgamation is a sensible way of overcoming this court’s decision in A & I Holdings Pty Ltdv Brisbane City Council [2002] QPEC 072, in which the then developer appealed the Council’s rejection of its proposal, and Mr Stevens and others were co-respondent adverse submitters. The present Appellants are suspicious about the amalgamation, fearful that if it occurs, it may be reversed by re-subdivision (which it was suggested might be sought on the basis of difficulties that might flow from a body corporate established for the combined site coming under responsibility for maintaining the external fabric of Moana and the adjacent cottage).  The proposal appears to treat Lots 1 and 2 independently.  The latter will continue to accommodate Moana and the cottage, the former will continue to accommodate the duplex and will be the site of the three new attached houses; it may be that widening of the driveway (ramp) to the basement carpark now proposed will push the new building’s southern wall slightly across the boundary.  The proposal as approved segregates car access and parking.  Likewise; services such as garbage collection.  (Somewhat provocatively, full bins for collection were to be placed in Bowman Lane in front of a neighbouring house whose own occupants have been required by the Council to trundle their bins to Gilbey Lane!).  The proposal seems to envisage a greater separation between the lots than exists now, in that the connection of Lot 1 to the frontage of its address of 86 Moray Street, presently an open driveway, is to be closed off by construction of a two car garage for Moana, and reduced to a 1.2m wide pedestrian path, apparently fenced off.  Whether or not intended, this may discourage future occupants of the former Lot 1 from enjoying, otherwise than from a distance, the generous front yard.  The amalgamation is something of a legal fiction. 

1. The court is not free to disregard the amalgamation, as the Appellants contend that it should.  Mr Stevens presented no authorities requiring or permitting the court to treat the application as if the site were Lot 1 only.  It was not for the court to search out such authorities, if any exist.  In practical terms, Mr Kirkwood, an architect who gave evidence in the Appellants’ case is correct in his assessment of the proposal, with the qualification that whether he is right that the attached houses are of four storeys rather than three remains to be seen.  Not only is it the case that (subject to the creeping wall aspect) the proposal can be regarded as relevantly confined to    Lot 1, the planning scheme objective of a relatively open low-medium density residential amenity is going to be frustrated if one looks at Lot 1 on its own.  Mr Kirkwood demonstrates in Appendix B in his Report Ex 15 that it is artificial to regard Lot 1 itself as containing 1,108m².  Useable area is of the order of 785m²; 220m² will be lost by dedication of the Gilbey Lane handle as a public road.  The 103m² of the Moray Street handle will be closed off (except for the pedestrian pathway, slightly less than one-third of its width).  GFA of the proposal based on the 785m² is of the order of 96%; based on 1,108 m², of the order of 68%.

1. It has not been shown that Mr Kirkwood’s argument is one the court is entitled to give effect to, that the court can refuse to recognise the amalgamation.  It is open to a developer to concentrate development in one part of a site; that the site may have been produced by an amalgamation ought not to affect the matter.  Indeed, it would be legitimate for a developer to acquire extra land not for development, but to authorise greater GFA on the adjacent land intended to be developed.

1. In principle, the Appellants may have been able to locate a basis in law for the court’s disregarding the area of the Gilbey Lane handle, not on the basis of the dedication which means it will be lost - for that would ignore the end paragraph of the City Plan definition of GFA, but on the basis that the handle has long been effectively alienated, being already a road and not any “new road” within the paragraph.  No use occurs of the handle associated with Lot 1 other than access like that availed of by the dominant tenements; apparently there is unauthorised use in association with one or more properties fronting Langshaw Street; doubtless they use it in common with the general public (like Counsel and myself on the “view” on 21 April 2005) as part of the general sealed road system of New Farm.  Indeed, a white line is painted where Bowman Lane joins Gilbey Lane dividing the handle/easement from the official road, whose effect (whatever was intended) is surely to direct northbound traffic about to leave Bowman Lane to use the easement.  For all practical purposes, the handle is already severed from Lot 1.  While this court has taken some pride in adopting a “practical” line in other contexts, for this development application and appeal, it has not been shown by the Appellants that the court has the option of ignoring the contribution which the handle/easement makes to the site area of Lot 1.  The ownership of that land must be acknowledged.  Neither the general public nor any particular person could claim any title by adverse possession or use.

1. The Respondent and Co-Respondent were able to point to a similar outcome in Crane v Brisbane City Council [2003] QPEC 025 where it was said at [35]-[36]:

“I should deal, however, with the submissions of Mr Haydon that the amalgamation of the two lots for the purpose of this application is a stratagem to permit over development on the vacant lot.  He argued that if a multi-unit development took place on the vacant lot solely, one would be looking at a considerably smaller building, much more in keeping with the reasonable expectations of the submitting neighbours.  That is true, but that the fact that the three storey building encroaches on to the corner lot ties that lot into the overall development.  It is unlikely that an application to sever that part of the corner lot on which the character house stands would (or should) succeed, so that the combined development will endure.  Added to that is the obvious fact that Paycorp has offered the preservation of the character house as part of its proposed development.  That is an outcome which the Plan actively seeks (see s.5.4.2.3 para [15]).  A planning authority can properly take such a contribution into account in considering an overall development which is, in some respects unusual.”

1. The foregoing conclusion does not mean that the anomalous situation should be quarantined or forgotten.  The practical realities of the situation may be regarded if judgments have to be made about the extent to which the Applicant ought to be granted relaxations of development standards, as the impact of relaxations may be lesser or greater depending on the overall circumstances. 

Gross Floor Area

1. City Plan 2000 provides the following definition:

“Gross floor area:  the total area of all floor levels in the building on the site to which the development relates, measured to the inside of the external walls, including:

·      all internal walls, windows, columns and elevator shafts all internal and external stairs, landings, ramps, escalators or other means of access between levels

but excluding the area of:

·      any lift plant, motor room or air conditioning or other mechanical/electrical plant and equipment room

·      any private balcony, where not used as a Restaurant, Shop, Club, Hotel or Nightclub, whether roofed or not. A balcony includes any outdoor space in or on the building that is a projection from a building, whether or not it is cantilevered or supported partially by posts, braces or columns

·      any roof deck, where not used as a Restaurant, Shop, Club, Hotel or Nightclub.  A roof deck includes any outdoor space in or on the building that is situated wholly or immediately above an enclosed storey or a storey used for carparking

·      any lobby at ground storey level

·      all rooms on the ground storey of a residential development associated with landscape and recreation where the total area of these rooms is no more than 5% of the site’s total landscape and recreation area

·      areas used or intended for storage associated with a residential use where on an enclosed level on which carparking is also provided for that residential use no part of which is more than one metre above ground level

·      areas used or intended for the parking of motor vehicles, where the parking is incidental to, and necessarily associated with, the use of some premises

For the purpose of calculating allowable gross floor area, the area of a development site includes the area of any new road widening or corner truncation required as part of the development and as a condition of the development permit.”

1. The final paragraph was added as at 1 July 2004.  There has been much dispute about the correct calculation of the GFA of the Applicant’s proposal.  It seeks to transfer available GFA from one part of the amalgamated site (present Lot 2) to the other (present Lot 1), not just by the conventional means of concentrating development there, but by reducing the GFA of Moana.  That can be done by reopening verandas that have been enclosed, and like exercises.  Moana is a difficult building for which to assess GFA, especially at roof level, given the complicated roof forms which produce slanting walls in rooms at the top level, large parts of which fail to reach the accepted 2.1m height for habitable areas.  The Appellants have not raised any issue about the accuracy of the GFA calculations in respect of Moana as it will be.  That is not to say that the calculation is correct.  Council officers who stamped the appropriate plans to indicate approval by “red pen” amendments crossed out, without replacing them, the assertions about GFA incorporated in the plans.  The importance of preserving Moana is such as to justify some leeway or indulgence in calculating its GFA.

1. The proposed development, as stated, includes three attached dwellings facing Bowman Lane, each of four levels, but capable of being assessed as three storeys, notwithstanding the doubts expressed by the Appellants’ architect, Mr Kirkwood.  The contribution of this building towards aggregate GFA was the subject of a number of separate disputes, in the end not as to measurements or calculations, but as to whether identified areas should be counted or not.  The Applicant’s architect, Mr Hayes conceded a slight excess of GFA over the 55% “acceptable solution”.

The Lobbies

1. Each of proposed dwellings 5, 6 and 7 (the new houses) at its lowest habitable level, that is the intended “ground storey”, contains an area at the top of stairs leading down to Bowman Lane which area faces the private lift incorporated in that dwelling and is designated “lobby”.  The applicant’s contention is that each such area is excluded from GFA calculations as a lobby at ground storey level.  The surveyor, Mr O’Brien contends that none is a lobby within the City Plan definition of GFA.  His approach (from Transcript p 21) is that:

“… if you’ve got a hotel or a large building, it’s very easy to say what is the lobby of a building, …, where there’s more than one person, or one owner, utilising a public space.

…City Plan, … is specific in that internal and external stairs are included in GFA and where these are a means of access between levels.  It appeared to me that once there were stairs introduced into a single unit dwelling that these are, then any notion that the lobby extended further, was taken out.

…

…I was willing to concede the two square metres at the entry as shown on entry on the plans, could be construed as a lobby.”

He had immediately before opined that where the steps started, between the entry level and the open space between the lift and the internal stairs was the border between what was GFA and what was not.  There is no definition of lobby, which, according to the Macquarie Concise Dictionary (2^nd) is “a corridor, vestibule, or entrance hall, as in a public building, often serving as an anteroom”.  The counterpart Oxford Australian Concise publication offers:

“porch, ante-room, entrance-hall, corridor; (in House of Commons etc.) large hall open to public used esp. for interviews between MPs and others, (also division ~) one of two corridors to which members retire to vote; body of those who lobby.”

1. The “complete” Oxford publication, replete with helpful examples of usage in context, offers:

“ 1.        A covered walk, cloister (in a monastery).
  …
  2.a.  A passage or corridor connected with one or more apartments in a building, or attached to a large hall, theatre, or the like; often used as a waiting-place or ante-room.
…

3. spec. a.  In the House of Commons, and other houses of legislature, a large entrance-hall or apartment open to the public, and chiefly serving for interviews between members and persons not belonging to the House; also (more fully division lobby), one of the two corridors to which members retire to vote when the House divides.”

1. In my opinion, to be a lobby an area must have some aspect of being available to the public or of being available for common use by more than a single person or a single household (disregarding special cases of those privileged or obliged to inhabit palaces, mansions and the like, who would expect a certain amount of non-family usage).  Like Mr O’Brien, “I’m not convinced that a lobby exists in a single unit dwelling.”

1. The express purpose of restricting GFA is to control “building size and bulk”.  The case for exclusion of aboveground areas enclosed within the walls of a building should be scrutinised carefully.  It seems anomalous that buildings of the same proportions having an identical arrangement of internal levels should have different GFAs because of the way in which a space is described.  If the Applicant is right, exemption from inclusion in GFA would be available for multiple ground floor level areas designated lobby, even for the whole floor.  It would hardly be practical for the Council to police the use being made of every lobby large enough to be used as a bedroom, sitting room or play area, etc.

1. Final calculation of GFA at the point where a building permit is required will be determinative.  The Applicant should be bound by a condition that in calculation of GFA permitted by the planning arrangements, any lobby included within a “dwelling” must be included, subject to the minor concession Mr O’Brien made.  He made other concessions regarding some external window sills and a lift area which he had thought protruded.

1. It is convenient at this stage to note the provisions of the New Farm and Teneriffe Hill Local Plan:

“2.1    Planning goals

1.Encourage the retention and enhancement of the existing social character and sense of community.

2.       Encourage a modest population increase.

3.Encourage the retention of New Farm’s characteristic diversity of built form and village feel.

4.Ensure that infill development and redevelopment is compatible with New Farm’s established character.

5.Encourage the retention, protection and enhancement of items of historical, cultural, social and landscape significance.

…

Planning principles

…

Accessibility

…

Principles

1.Increased intensities of residential, commercial, retail and community uses are to focus on major public transport stops and routes.

2.There is to be safe, comfortable and convenient access for pedestrians, cyclists and people with disabilities both within and to/from New Farm and Teneriffe Hill.

3.The street system should be clear, formalised and highly interconnected.  Rear lanes are encouraged.

…

Character and sense of place

Desired outcomes

…

2.      The built form promotes comfort and is of a human scale.

…

Heritage and cultural identity

…

Principles

1.Development should conserve and enhance areas, places and items of historical and cultural significance.

2.Development should retain and recycle buildings of historical or cultural value in a way …

Social planning principles

…

Provide opportunities for and encourage the retention of low cost and special needs housing

…

3.Opportunities are provided for the relaxation of acceptable solutions where these can be shown to be beyond the needs of the particular group, e.g. parking for pensioner units.

…”

I am not persuaded that the encouragement of rear lanes extends to use of them as the sole vehicular access to developments, event to the point of cutting off access by an existing frontage to a major street.

Stairs – Storage

1. It may be useful to state the court’s views on another group of GFA-related issues which were examined in some detail in the appeal.  Mr O’Brien indicated that his opinion, which has been generally accepted by me, may understate GFA, by not including two external staircases which give access from the basement carpark to the open air in the vicinity of the duplex near the north-western and south-western corners of Lot 1.  He says they may be regarded as integral to the building.  I think Mr Hayes’ approach is correct, that the “external stairs” included in the GFA by the definition must be “in the building”, as the introductory part of the definition requires.  The stairs, while part of the basement level, emerge in locations remote from the visible vertical walls, and would not appear to an observer to be part of the building.  At ground level, there is no sensible way to bring in the stairs by measuring “to the inside of the external walls”.  Mr Hayes is also justified in redesignating areas in the carparking level (previously called “stairs” by him and as such requiring to be counted) as “storage”.  The excisable storage is under the stairs; Mr Hayes has claimed no more than the penultimate dot point in the definition of GFA allows.  Finally, there is a contest as to whether, for stairs that have to be counted, there is brought in the appropriate part of each level or “storey” consumed by stairs, or whether, as Mr Hayes would have it, all that comes in is the aggregate area of the stair treads.  This is a matter of impression.  I prefer Mr O’Brien’s view, which he says is conformable with lift wells being brought to account for each level they serve, rather than counted once only.  This approach is consistent with regarding the purpose of GFA calculations as helping to give a reliable idea of how big a building is and looks.

Setback of attached houses from Bowman Lane

1. Mr Kirkwood was criticised for his assertion that the attached houses presented a “sheer” wall of 20m or so length right on the boundary of Bowman Lane, here only 3.6m wide, in that at lane level, a 0.9m footpath will be provided giving street access via short staircases to the lowest habitable level of the houses (the ground storey).  The next level will be constructed right to the street alignment (necessitating Department of Natural Resources consent for projecting eaves or awnings, which has been obtained, overcoming one of the appeal grounds); the top level is to be set further back.  The Appellants’ contention is that City Plan Ch 5 Table 5 Pt B General Performance Criteria and Acceptable Solutions for multi-unit dwellings (p 168) applies:

“P4     -     The front setback must complement the setbacks prevailing in the street.

-A4.1    In established Areas, the front setback is within 20% of the average setback of adjoining buildings.

-A4.2    In newly developing areas, the setback from a street frontage is a minimum of 3m.”

1. Mr Kirkwood says the requirement is:

“If Acceptable Solution A4.1 were taken literally, calculated on the average setback of the Cottage and 9 Locke Street (0m – 20m) – ie within 20% of 10 metres, an 8 metre setback.

Applying Acceptable Solution 4.2, Bowman Lane could be classified as a newly developing area, therefore a minimum setback of 3 metres would be applicable.

-It would appear that the general performance criteria and acceptable solutions for multi-unit dwellings of the Brisbane City Plan have been disregarded in this approved Application.

-Absence of a setback is more usually confined to CBD locations and to “high street” shops and mixed developments, not to low-medium density living developments in narrow residential back lanes.

-…

-Comparison may be made with the recently erected house at No. 3 Bowman Lane, its only street frontage, where setbacks were required and exist.

-…”

1. As for the New Farm and Teneriffe Hill Local Plan, for the relevant Low-Medium Density Living Precinct, it provides:

“5.3      Low medium Density Living Precinct`

Performance Crit    Performance Criteria  Acceptable Solutions

Building height

P1   The height of new buildings must be consistent with the existing lowrise residential form and character

A1  Building height is no more than 2 storeys

    An existing building, when retained as part of a development, may exceed 2 storeys

    A 3 storey proposal is appropriate where the design is consistent with this Local Plan and the relevant Code/s, when:

·   The allotment at the appointed day is larger than 1,000m² and has a frontage greater than 20m, or

·   The allotment has a frontage of at least 20m and is adjoined by multi-unit dwellings or premises approved for multi-unit dwellings on two boundaries, or

·   The site is a corner site and the new development is located a minimum of 10m from any existing detached houses on adjoining allotments, or

·   The proposal includes a minimum of 30% of dwelling units as low cost or special needs housing

Gross floor area

P2   Building size and bulk must be as compatible as possible with that of detached housing and the scale and character of the street

A2  Gross floor area does not exceed:

·   40% of the site area where the proposal  includes removal or demolition without Council approval of a heritage place listed in the Heritage Register Planning Scheme Policy

·   60% of the site area where:

-    the premises is intended to be used for a retirement village, or

-    the proposal includes a minimum of 30% of dwelling units as low cost or special needs housing

·   55% of the site area may be permitted where:

-    the allotment at the appointed day is larger than 1,000m² and has a frontage greater than 20m, or

-    the allotment has a frontage of at least 20m and is adjoined by multiple dwellings or premises approved for multiple dwellings on two boundaries, or

-    the site is a corner site and the new development is located a minimum of 10m from any existing detached houses on adjoining allotments

50% of the site area in all other circumstances”

1. In 5.4, for the Medium-Density Living Precinct (when more intensive development is to be expected), there are additional performance criteria:

“5.4      Medium Density Living Precinct

Performance Crit     Performance Criteria  Acceptable Solutions
Building height
P1   …	…
Gross floor area
P2   …	…
Building design
P3   …	…
Street setbacks
P4     Street setbacks must be compatible with existing setbacks in the area	A4  Building setbacks from the road alignment are not less than 6m
River access
P5   …	…”

5        New Farm and Teneriffe Hill Local Plan

This Code provides additional and/or alternative Acceptable Solutions to the Codes in Chapter 5 and takes precedence over the Codes in Chapter 5.

The purpose of this Code is to ensure that development in the Local Plan area is consistent with the Development principles and Precinct intents of this Local Plan.”

1. It would seem odd if in the Low-Medium Density Living Precinct, no or lesser setbacks were required.  I reject the contention that there is no requirement just because 5.3 is silent, and accept the Appellants’ contention.  Mr Kirkwood’s analysis in Ex 15 at p 9, set out above, is correct, in my view.

1. I accept that in Adeline Lane, on the northern side of Brunswick Street, there is a relatively recent multi-unit development which appears to be built to the street alignment.  Mr Hayes’ report offers a photograph, among a collection of photographs showing development to the boundary in lanes in New Farm.  Apart from Adeline Lane, like the Bowman Lane workers cottage, it is old development.  That cottage has a Moray Street frontage, as noted elsewhere.  The other “adjoining building” is Mr Stevens’ residence on a double block Nos 7-9 Locke Street.  The only Bowman Lane “frontage” belongs to No 3 Bowman Lane, a site subdivided off from a Locke Street parent parcel to Mr Stevens’ immediate north.  There, within the last 10 years or so the Council required a setback which seems to be one of 3m from the handle/easement.  Mr Kirkwood understandably castigates what he calls the “reckless and irresponsible precedent on the part of the Brisbane City Council” in now approving a “nil” front setback for the attached houses.  From pp 273-74 of Ex 1, a compilation of documents entitled “Appeal Background”, in part of the Council’s internal Report and Recommendation on Development Application (1 July 2004 – p 271 ff) one gathers that the front setback was never seen as an issue.  One then finds at 273 “submissions, representations and public consultation” which purports to assess the “key issues raised by the submitters”:

“Side boundary setback

The proposed blade wall and eaves overhang along the western boundary of the refurbished duplex does not comply with the setback requirements of the Residential Design – Low Density, Character and Low-Medium Density Code (should be setback 2 metres instead of 1.5 metres).  The setback of these elements is considered acceptable as they are considered architectural features that benefit the design of the building and provide adequate screening and privacy between the duplex units.  It is also relevant to note that no submissions were received from the neighbouring property along this alignment to the west.”

“SUBMISSIONS, REPRESENTATIONS AND PUBLIC CONSULTATION

The proposal is considered overdevelopment of the site – ie. Inadequate setbacks to the neighbours.

The proposal has been amended to ensure the proposed side boundary setbacks to the northern boundary of the site comply with the acceptable solutions of the Plan.

The proposal also complies with the side setback requirements in relation to the western boundary of the site with the exception of a blade wall and an eaves overhang associated with the refurbished duplex.  The setback of these elements is considered acceptable as they are considered architectural features that benefit the design of the building and provide adequate screening and privacy between the duplex units.  It is also relevant to note that no submissions were received from the neighbouring property to the west.

The basement car park level is 1.5-1.8 metres above ground level and therefore constitutes an additional storey, which is not appropriate.

The height and scale of the townhouse development is considered acceptable in the current streetscape of Bowman lane.  It is relevant to note that a 1.5-2 metre  high blank wall (podium car park level) has been constructed to the front boundary of the site directly opposite the proposal over Bowman Lane.”

1. The very first submission from Mr Dunstan (7 August 2003, p 9) is a single page document not in a standard form, which states the front setback issue prominently:

“3.No reasonable setback is proposed to Bowman Lane which itself is only 3.66 metres wide.”

The next (Paul de Vere Stevens at 210) calls the Council’s attention to Point 4 regarding “front setback” – as does Mr Yuri Stevens’ (at 218) and another submission (author not identified) at 263 and one faxed “Attention Anthony Lane” at 268.  What might be called the standard form submissions complain of “inadequate setbacks”.  It is difficult to understand why this would be construed as expressing concern about side setbacks only.  Mr and Mrs Sneyd’s submission at 247, self-evidently the product of independent thought, says:

“There will be no setback to Bowman Lane.  The examples of garages and the existing cottage built to the alignment can not seriously be extrapolated to justify the building of a three storey residence on the alignment of this 3.66m wide lane.  Moreover, there are very substantial setbacks for all other properties along the side of Bowman lane to be fronted by the proposed development.”

At 256-57 is another submission in similar form lacking signature or letterhead to identify the sender.  It is stamped “received 11 Aug 2003”.  It appears that the Council did not notice or did not take seriously this issue.  The court cannot be expected to assume that it gave any proper consideration to it.

1. The front “setback” proposed contributes to an impression of the building as greater in bulk and scale than would be gained if it had some setback.  Mr Kirkwood said at 309:

“… - it does, in my mind, look overcrowded because the bulk of the building that is put there, the new building, is right on the very narrow lane frontage and because it is like that and is not adopting a setback that is compatible with the other buildings that are in Bowman Lane and especially at number 3, which is a recent building built in Bowman Lane where setbacks were required.  This has a very severe frontage to Bowman Lane.”

That half or thereabouts of the basement will be above ground level reinforces the impression, likewise the concentration of built forms on Lot 2. 

1. The court’s approach that the General Performance Criteria and Acceptable Solutions – Multi-Unit Dwellings in the Residential Design – Low Density Character and Low Medium Density Code applies (5.3 in the Local Plan made silent) was that taken in Jackson & Ors v Redland Shire Council & Anor [2003] QPEC 062. Against Mr Kirkwood’s view that the “newly developing” area provision or the precedent of No 3 Bowman Lane may be relevant, it was said that nothing about No 3 is relevant because it is a land locked block (presumably approved by the Council) lacking any street frontage. There is nothing to be gained by resolving this issue. This is a respect in which the Applicant (maybe the Council, too) relies on the existence for the moment of the handle/easement, which is going to disappear, as it does in the GFA issue; there are other aspects in which it is contended that the dedication can be relied as producing a public benefit, notably for those who may drive across, park or obtain services along it; here, the dedication is relied on as something which will happen.

1. The Council’s planning witness, Ms Rayment dealt with the issue in her report dated 22 March 2005, after Mr Kirkwood’s had earlier highlighted it.  Her approach is that the Stevens’ residence at 7-9 Locke Street has no frontage to Bowman Lane, and cannot be considered an adjoining building.  If she intended for purposes of A4.1 to suggest the side setback of the cottage is relevant, but the rear setback of the Stevens’ house is not, this would seem an unwarranted distinction.  There is the further suggested distinction, that the cottage has a street frontage to Bowman Lane (although it addresses Moray Street), whereas the other building does not, given the land title situation and intervening handle/easement.  Only a person who knew what the title search showed would analyse the situation in this way.  Anyone else would regard the back yard as extending to Bowman Lane, taking the easement/handle to be part of the lane, which is how it functions.  The development proposed will bring the title into harmony with the existing practicalities.  While the court is compelled to bring in the land to be dedicated in calculating GFA, in the absence of any compelling feature in this different context, it could be seen as totally unrealistic if it declined to acknowledge the proposed legal situation (which will “regularise” the long standing realities/practicalities.  There is no injustice in assessing the proposal in terms of the streetscape it sets out to create.  It is not an attractive proposition that the consequences of the anomalous nil side setback of the cottage should be allowed to expand.  Though located on Lot 2 across the boundary with Lot 1, the cottage will contribute significantly to the impression of severe overcrowding on the latter if the proposal goes ahead.  While Lot 1 already has a shed/garage, (not the only example of a garage abutting the lane), it remains the case that the proposal’s façade is many times bulkier than the aggregate of structures presently in or very near the perimeter of the lane.  The present ambience of the lane, the Gilbey Lane arm in particular, is open, and leafy.  The cottage apart, the impression is that significant buildings are set well back.  It is fortunate for the amenity that the very large seven storey apartment building at 81 Langshaw Street presents to both arms of Bowman Lane a very large grassed “backyard”, albeit at an artificially high “ground” level, as noted in the Council’s Report quoted above.

Storeys

1. The number of storeys is important because of P1 in s 5.3 of the Local Plan.  A1 declares a three storey proposal appropriate in the circumstances, given the site size and frontage, the first “dot point” being satisfied.  Mr Kirkwood contends, based on Mr Viney’s views as to what must be done to produce an acceptable ramp (namely, raising the carpark basement level), that the purported basement carpark level will turn out to be and should be treated as the ground storey.  He says that, with three storeys above that, the attached houses were of four storeys. 

1. City Plan provides the relevant definitions:

“Ground level:  where documentary evidence is available, the level of the land at the time of registration of the plan of survey.  Where such evidence is not available, the ground level is the level shown on Council’s City of Brisbane Orthophoto Maps dated 1980 and 1981

Ground storey:  where a building contains more than one storey, the ground storey is the one closest to ground level (where the distance between ground level and the ceiling, measured at the middle of the face of the front wall of the building, is greater than the distance between ground level and the floor)”

1. Common experience is that many buildings have a ground floor elevated well above ground or street level.  The definitions can obviously be useful for development on sloping sites, if ground level can be identified appropriately.  This site falls quite gradually towards Bowman Lane.  The building is designed to have the measurement from carpark floor to ground level exceed the measurement from ground level to ceiling by one tenth of a metre, 1.4m as compared with 1.3m: see  Ex 28.  But for the definition, it would be reasonable to assess the building as       3½ storeys, by reference to what is visible.

1. The Appellants’ case is that if the ramp accessing the carp park level is to meet applicable standards, the floor of that level will have to be raised to an extent which will bring it within the definition of ground storey.  The definition of storey in City Plan is:

“Storey:        a space within a building which is situated between one floor level and the floor level next above it and commencing at ground level, or if there is no floor above, the ceiling or roof above…”

The Ramp

1. The importance of adequate sight lines for drivers, pedestrians (quadrupeds included) and cyclists wherever vehicles are entering a road by an ascending ramp is obvious.  In the vertical plane, the drivers of such vehicles will naturally be looking upwards rather than straight ahead, and may fail to see everything they should see from a safety point of view.  The relevant Australian Standard, which the Council adopts, is AS2890.1 (2004), s 3.3, which Mr Pekol writes in Ex 7:

“… is intended to minimise potential problems associated with crossing the footpath and entering the traffic stream, by ensuring that vehicles exiting a car park do so on a relatively flat grade, thereby maximising their view of the footpath and road ahead.

Given that there is no footpath crossing at the site’s Bowman Lane access, the relevance of this section of the standard is confined to the ability of vehicles leaving the car park to see cars in Bowman Lane.

To help facilitate drivers’ vision as they exit a car park, Section 3.3(a) of AS2890.1 (2004) stipulates that the first 6m of the parking ramp be no steeper than 1:20.

In this instance, the proposed ramp grades (starting at property boundary) are:

Level for 3.66m;
1:10 for 2m;
1:5 for 4m and
1:10 for 2m.

While these do not comply strictly with Section 3.3(a) of AS2890.1 (2004), the cross-section shown in Attachment C clearly demonstrates that the proposed solution is in fact superior (in terms of keeping the driver’s eye level) than the strict application of the AS2890.1 (2004) grades.

Thus, the proposed ramp grades adjacent to the Bowman Lane property boundary are consistent with the intent of AS2890.1 (2004).”

1. Exhibit 21 illustrates this diagrammatically.  Mr Viney’s criticisms must be accepted, that (a) the property boundary is not the appropriate point to measure from, as most vehicles will be turning left, not into Bowman Lane proper, but into the easement (ie, the solution claims credit for 3.66m of 1 in 20 or better gradient which would not be used) and (b) pedestrians, in the absence of footpaths, will be using the road proper and the need for drivers to see them (and smaller vehicles, especially motor cycles) remains:  Mr Viney has marked in Ex 21 the likely position of a pedestrian in the lane. 

1. The design of the ramp (which is a “tight” one, given the short distance available to drop to basement floor level) has been improved by widening it from 3.7m to 4.5m or 4.6m.  The Standard in s 3.2.2 requires 5.5m to permit two vehicles to pass; traffic volumes contemplated of 30 or more vehicle movements per hour at peak hours will not be encountered.  The width is adequate, even though two vehicles will not be able to pass, or pass comfortably.  The Standard does not apply in respect of width.  There is insufficient justification for circumventing or adapting it in respect of grade – which would not present any issue if Moray Street access were availed of.

The Easement

1. The only documentary evidence the court has about the easement is a copy of the registered Transfer of Right of Way executed by Mr Unmack on 13 December 1913, presented as the source of the rights of the Appellants’ witness Ms Melinda Jones, as owner of No 3 Bowman Lane.  It relates to an area of 8.7 perches and is limited to rights to pass and to authorise others to pass with or without vehicles etc.  The court was told by the Co-Respondent developer’s Counsel, Mr Favell (p 21 of the transcript) that the dominant tenements are the properties on the western side of Bowman Lane, between Lot 1 and Gilbey Lane.

1. In respect of easement rights, the Council’s submission states:

“EASEMENT RIGHTS

41. Clearly, approval of the proposal depends on certain other consents and permissions being obtained.  This factor ought not to influence the outcome of this appeal and it is in the face of established authority for this Court to pre-judge the outcome of such subsequent applications.  From a planning perspective however, it is clear that benefits will flow to persons presently enjoying easement rights as a result of such future dedication.”

There was discussion about whether the dominant tenement owners could object to the easement being dedicated as a public road during Mr Favell’s opening, at pp 21-22 of the transcript, and reference to an application under the Property Law Act 1974 if any of them did. He offered to take the court:

“… to the law in that regard, but in our submission it’s not so much a question here, because it can be conditioned here,  and whether the applicants get it by application to the Supreme Court or otherwise at a later time – if they can’t fulfil the condition, then they don’t go ahead.”

Ms Jones has resisted giving consent to dedication of the easement as a public road for the moment (338).  If consent to the dedication is necessary, the propositions put up may extend the law as so far developed.  The doctrine that necessary consents of  a public body being outstanding does not stand in the way of approval of a development application has not been extended to cases where a private owner is concerned.  See Walker v Noosa Shire Council (1983) 2 Qd R 86, 90. Colless v Brisbane City Council [1984] QPLR 235, 241 concerned an express provision in the Ordinances of the City under which it was sufficient for a developer to show ability to bring about the drainage easement required by application under s 180 of the Property Law Act.

1. There has been no opportunity to go into whether any consent is necessary in this context, or whether an application by the developer here under s 181 might be necessary, or capable of being successfully defended. Mr Favell’s submissions forwarded under cover of a letter dated 13 May 2005, in para 44 ff, present persuasive arguments that his client might make an application under the section. No supporting authority is cited, but most likely none exists. He argues that the issue is irrelevant. Not all of those who might wish to argue the issue are parties in this appeal. There is nothing here comparable with provisions like the Ordinance mentioned, or ss 22, 56 or 58 of the Standard Building Regulation 1993, which expressly stands in the way of approval. Cf Livingstone Shire Council v Hooper & M3 Architecture(Architects in Association) & Ors [2003] QPEC 063. It is not shown any easement owner other than Ms Jones might have reservations about consenting to the dedication. What she has done in the past is decline to facilitate dedication by a former owner of Lot 1 on the basis of some benefit accruing to him such as payment for the land and closing off of the Langshaw Street arm of Bowman Lane by the Council. See p 400. The development application should not be refused on the basis that the dedication condition cannot be implemented. The amended Notice of Appeal asserts that the easement owners will not consent, but evidence of that is lacking.

Why not Moray Street access?

1. From Moray Street, the ramp to a basement level would be longer, exacerbating such difficulties as might arise if opposed vehicles were unable to pass.  (Against this consideration, there is room for a 5m ramp and run outs, which would allow convenient passing.)  The amenity of Moana was legitimately invoked by Mr Hayes as a relevant consideration.  A common driveway to Moray Street serving all households on the amalgamated site bar the cottage would run the length of the veranda on the western side of Moana adjacent to the large main public room of the house.  It is true that the amenity enjoyed from that room and the veranda will be impaired by the proximity of the driveway, even when it is not in use.  Imagined objections to its use by those fortunate to occupy Moana would not sit terribly consistently with the case made that the same amount of traffic in Bowman Lane would not be noticed.  The Council’s submission asserts (para 26) that the proposed development is integrated and relies on the entirety of the site, that there is “one development over the entirety of the site”, rather than each site being a separate “planning unit” (31); if a vehicular access to Moray Street is denied to occupants of what is presently Lot 1, if they have no more than the confined, fenced off pedestrian access, integration appears to be minimal, indeed reduced, apart from the legal formalities of the title.  Mr Beard is correct that the question for the court is acceptability of Bowman Lane access.  It is not acceptable.  I respectfully agree with Senior Judge Skoien’s approach in A & I Holdings that with the Moray Street alternative available, there is no imperative or merit about turning to the unacceptable in order that good use may be made of Lot 1.  It is acknowledged that the proposal considered by his Honour was a larger one than that now under consideration, and probably would have generated more traffic.

Council’s Submissions

1. The intent of the Low-Medium Density Residential Area designation, as Mr Trotter for the Council says:

“ … makes it plain that this area’s proximity to the City and public transport networks and centres is an important factor.  The intent records that the area is intended to contain “a mix of houses up to two storeys and two and three multi-unit dwellings”.  New development is intended to be designed “to co-exist comfortably with neighbouring houses.  This will be reflected in the intensity and scale of development and a strict adherence to a maximum gross floor area of 50% or 60% if in close proximity of public transport or on arterial roads.”

As he notes, the site is within a Demolition Control Precinct, where pre-1946 buildings are “largely retained”. 

1. Mr Trotter referred to the purpose of the Residential Design - Low Density Character and Low-Medium Density Code of:

“•    ensuring new development is compatible in scale and design with neighbouring houses

•     retaining pre-1946 dwellings in Character Residential Areas, with new development 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

•     encouraging low cost and special needs house … (City Plan Ch 5 p 165).”

1. By P1 “Development size and bulk must be consistent with the low to medium density of the area”.  A1.1 specifies GFA within 0.5 of site area; it contemplates 0.6 in defined circumstances none of which is encountered here, namely, where the site:

“•   … has frontage to a road with a reserve width of 15.5m or more, and any part of the site:

-is within 200m radius of any pedestrian entry to a railway station, or

-fronts an arterial route, or

-is not next to a house.”

1. Mr Trotter is correct that what does come out of this is that multi-unit dwellings up to three storeys are contemplated in this area.  The more specific Local Plan provisions should prevail.  While they do not in terms contemplate multi-unit dwellings (indeed, contain indications that they do not), under the IPA, as it is often said, “nothing is prohibited”.  Recent development in the surrounding area, a good deal of which is the product of Mr Hayes’ designs, confirms that the planning provisions have been applied as if multi-unit dwellings were permitted.  Earlier planning arrangements permitted the large apartment building at 81 Langshaw Street, a smaller one between Mr Stevens’ place and No 3 Bowman Lane and also some of the development on the northern side of Gilbey Lane; such large buildings have not been permitted since the 1987 Town Plan came into effect.  Other larger buildings, even older, lie more or less opposite the site between Moray Street and the river.  Blocks of flats there, currently undergoing refurbishment, and the acquisition by them of neighbours by infill development are part and parcel of the wide diversity of housing types characteristic of and adding interest to New Farm.

Traffic

1. The main points made by the submitters and by Ms Jones related to traffic in Bowman Lane and Gilbey Lane.  There is no space for footpaths.  A narrow private footpath is at the rear of 81 Langshaw Street (signed to indicate its status, and perhaps discourage use of it) runs along the remote part of the Gilbey Lane arm adjacent to the blank wall (rising to the podium constituted by the carpark roof) which is noted in the Council’s Report of 1 July 2004.  The proposed 0.9m wide “footpath” on the other side of the lane (another private one, presumably, as no land is to be dedicated in this location) will be shorter (at both ends).  Pedestrians must share the narrow lanes with vehicles.  The safety concerns are real.  They extend beyond safety of pedestrians to concerns about vehicles colliding with vehicles or hard things on or beside the lanes.  The nature of them does make this a low speed environment without a necessity for traffic calming, at least for drivers familiar with the area, although Ms Jones’ evidence establishes (and identifies) to my satisfaction local vehicles whose drivers are insufficiently careful.  Strangers may well lack the knowledge (or fail) to appreciate in time that they must be very careful.

1. In this appeal, I prefer the assessments of Mr Viney, who was called for the Appellants.  It was asserted by the other parties that he accepted the proposal would not lead to any noticeable increase of traffic in Bowman Lane.  The proposition is correct in the sense that it will remain a quiet thoroughfare, without much traffic, and a low speed environment generally – there will continue to be exceptional cases of irresponsible or ignorant drivers.  However, I cannot accept Mr Pekol’s opinion, relied on in the developer’s case, that traffic generated by this proposal will have “no measurable impact on the operation of either Bowman Lane or Gilbey Lane”   (p 61).  There will be added all traffic movements associated with three new attached houses, each having four bedrooms and it appears a double garage, and the units in the duplex, asserted to have one bedroom each, presently, which are to be enlarged to three bedrooms; these units presently have alternative access by Moray Street.  I would expect something near a doubling of the traffic in Bowman Lane were the proposal to go ahead.  No one suggested that traffic issues should preclude any development in Bowman Lane.  The proposal may be seen as going beyond what is to be expected on a site of 785m² in a Low-Medium Density Residential Precinct.

1. Disregarding the duplex, Mr Viney anticipates a “modest” increase of approximately 12 trips per day and one peak hour vehicle trip; he says it will be “undesirable” to increase traffic usage of the lanes, “particularly usage of the Bowman Lane approach to Gilbey Lane” because of:

   “5.3.1  Inadequate Sight Distance

   There is inadequate sight distance available at the Bowman Lane/Gilbey Lane intersection for a driver to safely exit from Bowman Lane.  Adequate sight distance is important at intersections to preserve safety for both pedestrians and occupants of vehicles.  The property on the south-east corner of the intersection contains landscaping along the Gilbey Lane alignment that restricts visibility to the right for a driver in Bowman Lane (restricted to 12-15 metres for a driver located 3.0 metres from the Gilbey Lane kerbline).

   To the left, the sight distance is also restricted to approximately 12-15 metres by an existing fence (the fence has been truncated by the owner to improve visibility but could legally be constructed to the property corner which is a right angle).

   …

   The minimum sight distance acceptable under Council’s policy (Transport, Access, Parking and Servicing Planning Scheme Policy – see extract of Table 7 at Appendix 3) is 40 metres.  The 40 metre minimum sight distance may be accepted:

   Where it can be satisfactorily demonstrated that there is no practical alternative and public safety will not be unreasonably compromised.

   The intersection does not even meet the minimum sight distance standard of 20 metres visibility for a circulation road within a carpark (see Table 14 of the policy at Appendix 3).

   Travel speeds in Gilbey Lane would be lower than the legal limit permitted but significantly higher than what would be expected in a carpark.

   Clearly, the intersection is sub-standard in terms of sight distance and should have minimal use.  Certainly no additional traffic should be forced to use the intersection by accepting the design proposed with three new residents’ and two visitor car spaces proposed to have access from Bowman Lane.

   An alternative egress intersection exists for residents of Bowman Lane at the Bowman Lane/Langshaw Street intersection.  However, this involves use of the narrow section of Bowman Lane and the right angle bend which is not only difficult to negotiate (even for an 85^th percentile car) but also has unsatisfactory sight distance because of the wall constructed to the boundary of the corner allotment. Damage to walls and fences in the vicinity of the bend is apparent and demonstrates the difficulty in using the lane.  Damage to vehicles and property due to the tight geometry would naturally increase if the proposal proceeded as currently designed.  Importantly, with vehicle access to Bowman Lane, there is no satisfactory alternative travel route that residents can adopt to avoid the sight distance and narrow lane problems.

   Poor sight distance is a concern at other intersections with Gilbey Lane (eg Locke Street) and consequently any increase in use of the lane should be resisted. 

   The conclusion is that, based on sight distance considerations alone, the site access should be to Moray Street.  It is noted that measures (eg the use of convex mirrors) to overcome the lack of sight distance at intersections with Gilbey Lane have been suggested to Council at various times and have been rejected.  Appendix 4 details recent correspondence about this matter between Council and Mrs Sykes, a resident of Locke Street.

   …

   5.3.2    Inadequate Width of the Laneway Network

   The narrow nature of the lane system causes vehicle/vehicle and vehicle/pedestrian conflicts.  Between Bowman Lane and Langshaw Street, Gilbey Lane has a 3.9 metre wide carriageway between the face of the kerb on the north eastern side and the face of the brick columns of the fence on the south-western side.  The kerb on the north-eastern side is 260mm from a small wall.  Consequently, this section of Gilbey Lane:

   ·      Is a two-way roadway with a legal speed limit of 50km/hour but with a carriageway width suitable for one car only (5.5 metres is the accepted minimum two-way street width);

   ·      Has no footpath for pedestrians or services (power poles and light standards intrude into the available width) and no safe refuge for pedestrians when confronted with an approaching car or truck.

   Any increase in use of the lane-way is undesirable.  The proposed development would increase traffic flows by a modest amount in practice but the poor standard of the laneways is such that even this increase should not be permitted.

   Vehicle/vehicle conflict could be resolved to an extent by making Gilbey Lane operate one-way (after consultation with local residents).  However, there are disbenefits of converting to one-way operation including:

   ·      It would encourage an increase in travel speed which would be undesirable since the problems of inadequate sight distance at intersections and lack of pedestrian facilities would remain;

   ·      Disregard for the one-way designation;

   ·      The need to maintain signage and enforcement;

   ·      The additional travel distance required for some trips.

   …

   5.3.3    Use by Non-Residents

   i.     Refuse Collection

   …

   The amended plan SK03 deletes the previous bin location in Bowman Lane such that the bins will be collected from Moray Street.

   ii.    Furniture Delivery

   …

   … all service and trade vehicles (larger than a medium sized car) would be required to reverse along Bowman Lane to the Gilbey Lane intersection to leave the site.

   iii.   Visitors

   It would not be appropriate to encourage visiting drivers, unfamiliar with the lane system and its deficiencies, to use the visitor spaces proposed in the basement carpark.

   5.3.4   

   The deficiencies of the laneway system are exacerbated by the substandard access and site layout.  …

   a)  Ramp Gradient

   The carpark level proposed is RL 12.54.  The level of the laneway where the access ramp commences is RL 13.79 a difference of 1.25 metres.  The ramp down from the  laneway should commence descending from the proposed new road boundary not the existing road boundary.  This point is indicated by interpolation of levels given on the plan to be higher than RL 13.79 and consequently, the level difference would, in practice, be greater than 1.25 metres.  The distance available to change levels is 8 metres.  This is an inadequate distance to provide ramp grading acceptable to Council’s policy or to Australian/New Zealand Standard AS/NZS 2890.1:2004.

   The Standard requires that the first 6 metres of driveway be at a maximum grade of 5% (1:20) and that steep ramps have transition sections (typically 2.0 metres long) at sharp grade changes.

   To provide acceptable ramp grading with access to Bowman Lane, it would be necessary to raise the carpark level. 

   b)  Ramp Width

   The approved plans show a 3.6 metre wide ramp (between walls). The amended plans show a ramp that is 4.5 metres wide between the side boundary and the structure (ie still a one-way width driveway used two ways).  As a retaining wall will need to be constructed on the side boundary, the width of the constructed ramp between walls will be less than 4.5 metres in practice.

   This width does not comply with either Council policy or AS/NZS 2890.1:2004.

   c)   Sight Distance

   Drivers leaving the driveway have inadequate visibility to any traffic using Bowman Lane from south to north.

   The volume of this traffic is extremely low and the speed would also be expected to be low.  However, the driveway intersection is 30 metres from the bend in Bowman Lane and 60 metres from the Gilbey Lane intersection and speeds of between 20 and 30 km/hour would be expected.

   Figure 2 below shows the limited extent of visibility of a driver (negotiating a steep ramp under the proposed design) to the right.”

1. Mr Beard was cautious in arriving at his view in support of the proposal.  He gave evidence in support of the Council’s rejection of the development application considered in the previous appeal of A & I Holdings.  He demonstrated, and the court found that access via the site’s frontage to Moray Street along the “handle” leading to it, which could have been widened, was far preferable.  The failure of that appeal, except so far as some demolition gained approval, turned on the issues of traffic and GFA.  Mr Beard did not support the Council’s decision to approve the present application from his traffic engineering standpoint, but felt able to do so after some modifications were agreed to between Council and the developer:

“… dealing with the development of the rear portion of the site, the original development proposal was a larger development for a start and probably the most important distinction was that it didn’t rely on dedication of that section of Bowman Lane, which currently functions as if it’s part of Bowman Lane. … I’m not quite sure why, … because it isn’t really usable in any way.

…

… but they didn’t dedicate.  As well … there was a much higher risk of visitor parking, there was no pedestrian access to Moray Street.  It was actually going to be addressed to the lane …”

…

… We still had the refuse collection occurring in Bowman Lane.  … we were still talking about the fire hydrant facilities being in Bowman Lane.

…

… the sight distances were satisfactory.”  (Transcript 126-27).

1. It then emerged that he and Mr Pekol had misinterpreted Mr Hayes’ architectural plans and that a gap they summised existed below “ground” floor level was not there for road users to see through:  See pp 132-33 of the transcript where it was accepted that Mr Viney’s interpretation was correct.  This led to a series of revisions of the plans to transpose a bedroom and a patio, then shave back a corner.

1. Mr Beard told Mr Stevens at 135:

“…– in my opinion it would still be desirable for them to redevelop this site with access entirely via Moray Street, that’s desirable, but Council has to deal with the application that’s before it and in my view the current application is not unacceptable, the previous one was.”

and at 139:

“… there’s no traffic engineering reason why the use of Bowman Lane is preferable.  It really is a case of is it acceptable or not.”

He was not particularly enamoured of the developer’s proposal for the use of convex mirrors to overcome inadequate sight lines.  He thought them unnecessary, and was doubtful that the Council (which has the final say) would agree to them (129-30).  I accept Mr Viney’s criticisms of the mirrors, especially in the rain, which Ms Jones corroborated from her personal experience.

1. The extent to which the developer has gone, with Mr Pekol’s assistance, to overcome traffic related problems, even since the Council’s Decision Notice of 2 July 2004, and during the appeal itself is praiseworthy.  There are continuing improvements, but not to the extent of persuading the court that the proposal is acceptable.  The lane and narrow roadways system of New Farm which Mr Hayes highlights in a map (Fig 4) and at p 6 in his Report (Ex 9) contributes to the charm and character of New Farm, and is a reminder of its history; as he says, it requires “compromises”, as do “the narrow streets and lanes of European cities.”  Indeed, the “planning principles espoused by the Local Plan regarding 2.2.1 Accessibility spell out that ‘rear lanes are encouraged’.”  As noted already, it is not clear that they are encouraged as exclusive means of access.  In any event, this is an insufficient justification for the court’s adding to the risks that presently exist by endorsing the proposal before it.  Mr Viney was right to hold out at the conclave.  The proposal gives up the access that the present Lot 1, where the new development is to be accommodated, enjoys or might avail itself of to Moray Street; it transfers GFA from Lot 2 to Lot 1.  The sound planning decision is to preserve and use, and if necessary enhance the Moray Street access.  One making Bowman Lane the sole access for new development of the scale proposed is not acceptable.

Melinda Jones’ evidence

1. Ms Jones, who owns and resides at No 3 Bowman Lane was not an appellant; she lacked standing, as she was not a submitter, which she had been in respect of the application in A & I Holdings.  It seemed this was in some way being held against her.  She had been sent notification as an adjoining owner in her married name of Mrs Fitpatrick; it was sent registered post, addressed to Bowman Lane at a time when her husband was living there but she was living at Greenslopes.  I accept her evidence that she did not become aware of the application.  The submission in Ex 1 at p 251 is from Anthony Fitzpatrick of 3 Bowman Lane, doubtless the Second Appellant.  Ms Jones’ evidence is accepted.  She shares the mystification of others (including Mr Dunstan) that the immediate future of the site was not resolved by the decision in A & I Holdings.  She was able to confirm from her own observations and experience the substandard and potentially hazardous conditions for pedestrians and vehicular traffic in Bowman Lane and Gilbey Lane.  Her involvement in a collision at the intersection earlier this year gave the lie to the traffic experts’ belief that there had been no such collisions.  She happens to have a lifetime’s knowledge of the local area.  If it matters, I think her assessment that the character of New Farm changes as one crosses Brunswick Street is correct, and consistent with what was seen on the “view”.  She told of the frustrations which followed the discovery upon purchase of 3 Bowman Lane with building plans that it was land locked.  The easement was not available to bring in services, for which other arrangements had to be made; there was no entitlement to park or leave a wheelie bin in front of her place – the Council required her bins to be left in Gilbey Lane.  She was subjected to criticism for her ungenerous attitude in not wanting the dedication of the easement, which would lead to general parking becoming available on the easement area (if there were not made other arrangements, which would presumably require some obstruction by signs regulating parking) – producing unwelcome competition for space which her family and other visitors apparently arrogate to themselves at times.  In this regard, I think she is no different from the ordinary person who would almost certainly be displeased to have local traffic and parking pressures exacerbated, especially when this court has found (in A & I Holdings) that the use of the bigger, more suitable site access by Moray Street should be used.  Ms Jones confirmed the difficulty large vehicles have accessing and using Bowman Lane.  She instanced service vehicles replacing the gas bottles she is compelled to use because reticulated gas cannot be got to No 3.

What should happen?

1. Mr Stevens did not contend that success in the appeal should mean the development application is rejected, so that the developer or someone else is left to start all over again.  The site, considered as Lot 1, or as both lots, is underutilised and may be seen as ripe for further development.  Any expectations that it might be left as it is, as a curtilage to enhance Moana, is romantic, and hardly realistic.  There is no point in clinging to some hope that an owner might emerge who would sterilise the valuable land in Lot 1.  The planning/traffic issues arise in respect of a parcel of land that is effectively no more than 800m².  The court has only recently dealt with such issues, albeit in relation to a different developer and a somewhat different and larger proposal. It is important that, if possible, some progress towards redevelopment of Lot 1 occurring be achieved in this application and appeal; the outcome should be a development permit for the material change of use.  Conditions can be attached to deal with aspects that have been troublesome.

1. The parties will be afforded the opportunity of resolving conditions co-operatively, so that the court is presented with a united front; if necessary the court’s decision about particular suggested conditions may be sought.  The live issues in the appeal have been few, have not included any flowing from Moana’s heritage status, for example.  The court, already faced with many changes to the application as earlier defined by the Council’s decision notice and incorporated conditions, is willing to consider changes to the development application.  The circumstances are such that a broad view of what is a “minor change” for purposes of s 4.1.52(2)(b) of the IPA may be taken.  For example, given what was proposed for the duplex, and its essentially concealed location, demolition and construction of a new building could well be acceptable – allowing freer use of Lot 1, at basement level and above.  I would regard switching access to Moray Street as a “minor change”.

1. The site presents unusual challenges.  Preservation of Moana is important, and also ensuring that, so far as possible, new development does not detract from the contribution that house makes to New Farm.  Mr Hayes’ approach, is very different from that taken in A & I Holdings, which was to demolish all improvements on Lot 1 and replace them with a building large enough to dominate Moana.  He has come up with a design retaining all of the pre-1946 construction, apart from the shed/garage, so that the site contains four separate structures, five if the two car garage proposed for Moana which would cut off Lot 1 from its Moray Street handle, is counted.  That satisfies a number of the desiderata quoted from the Local Plan.  Others may not be satisfied:  the proposal may involve more than a “modest population increase”.  It would not be entirely unexpected if further consideration saw the developer advised to approach the court to change conditions set by it in this appeal.

1. My views include that a developer of the combined site is entitled to some indulgence for saving Moana, as in transferring GFA from it to new development, especially by works that may reinstate the house as it originally was, and in calculating GFA of what is preserved, given that the architecture of 1886 was less concerned than we are, nearly 120 years later, with maximising functional, usable space.  As things stand, I am not inclined to favour granting “relaxations” from compliance with acceptable solutions specified in City Plan.  It is accepted that other means may be found of satisfying performance criteria; however, a cautious approach ought to be adopted.  In my opinion, citizens of the city, and near neighbours of a development site in particular, are entitled to expect that things will not be made significantly worse for them by the granting of relaxations by the Council.  The Council and the court ought to consider impartially (that is, without any tendency to favour a developer) proposals for relaxations.  There ought to be none here in respect of the GFA acceptable solutions (except as indicated already), this largely because of the artificiality of the “site area” brought into the calculation.  It seems to me there is some artificiality, too, in the developer’s case that the overall development of the aggregated site is “integrated”.  The condition which the court will require of Moray Street access will go some distance towards preserving integration.  It may be that a proposal would be acceptable which permitted Bowman Lane access to the extent that it could be available to the amount of traffic that would be generated by the amount of “rear” development that might have been expected on Lot 1.  Number 3 Bowman Lane is an example of such development.  I do not suggest it is the only kind of development that would have been anticipated.  As at present advised, I would not favour relaxations in respect of setback or height of new development, whether measured in storeys or otherwise.  The conditions ought to make clear that GFA includes any area (whether or not designated a lobby) both wholly within and having access to it controlled solely from within a single dwelling unit. 

1. Mr Hayes told the court he could redesign the attached houses, in particular, to produce strict compliance with GFA standards by widening verandas, for example.

1. This is not one of those contexts in which relaxations are necessary to permit useful development on a site which otherwise could not be developed, where there is a deficiency in stipulated frontage, but a site has the required area, say:  See Tod v Brisbane City Council [2003] QPEC 055. In my opinion, the situation is very different where the relaxation sought is not to make some reasonable development possible, but to make a larger one possible, by inclusion of additional dwelling units, for example – at least where this would have an impact unlikely to be welcomed by local residents other than the developer.

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