Sutton (Qld) Pty Ltd v Redcliffe City Council
[2006] QPEC 32
•11 April 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sutton (Qld) Pty Ltd v Redcliffe City Council [2006] QPEC 032
PARTIES:
SUTTON (QLD) PTY LTD
Appellant
REDCLIFFE CITY COUNCIL
Respondent
FILE NO:
1557 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
11 April 2006
DELIVERED AT:
Southport
HEARING DATE:
16, 17 May and 7, 8, 9, 10 and 11 November 2005
JUDGE:
Rackemann DCJ
ORDER:
APPEAL WILL BE ALLOWED AND THE APPLICATION APPROVED
CATCHWORDS:
COUNSEL:
Mr Hughes SC, Mr M Williamson for the Appellant
Mr Ure for the Respondent
SOLICITORS:
Connor O’Meara for the Appellant
MacDonnells for the Respondent
TABLE OF CONTENTS: Page INTRODUCTION 1 THE ISSUES 4 THE LAW 5 THE TRANSITIONAL PLANNING SCHEME 6 (i) Introduction 6 (ii) The DCP 7 (iii) Clause 25 11 (iv) Streetscape 17 (v) The Mezzanines 20 TLPI AND THE DRAFT PLANNING SCHEME 24 CONCLUSION 28 INTRODUCTION
The applicant for development approval appeals against the Council’s deemed refusal of its application for a development permit for a material change of use, to permit the development of a building, described as being eight storeys in height, on an aggregation of nine parcels of land at Marine Parade, Suttons Beach.
The proposal is comprised mainly of residential apartments but, at ground level, also proposes two home offices, a separate office, a restaurant, retail uses (two general stores and a beauty salon), residents facilities (swimming pool and gymnasium) and other facilities.
The site of the proposed development is situated in the block bounded by Marine Parade, Sutton Street, Sydney Street and Dix Street at Suttons beach. The site is elevated and lies opposite the red cliffs above the popular beach. Magnificent views to Moreton Bay are available from the site. There are a number of multi-unit developments fronting Marine Parade.
The proposed building was designed to be eight storeys, but with mezzanines within a number of those storeys. A mezzanine is not counted as a “storey” under the Transitional Planning Scheme or, indeed, the draft planning scheme. The use of mezzanines in a building at this location increases the amenity for future residents of the building by, in particular, taking greater advantage of the views to Moreton Bay. Another consequence however, is that the building becomes taller, in absolute terms, that if mezzanines had been used in fewer of the storeys or not at all.
Use of mezzanines was first suggested to the developer by members of the Councils own Town Planning Department, who met with a director of the Appellant on 25 September 2003. The suggestion was made on the basis that[1]: -
“It was considered appropriate that we take advantage of the definition of a mezzanine within the planning scheme to gain some additional height for the building which, because of the site’s location and its position in Marine Parade, allowed any development to take advantage of the extensive, uninterrupted views that the site enjoyed.”
[1] Exhibit 2 page 105
The use of mezzanines and, in particular, the consequent height of the building, became controversial when the proposal was publicly notified. The Council obtained legal advice in relation to the interpretation of the definition of “storey” and “mezzanine” in the Transitional Planning Scheme. That legal advice[2] was to the effect that:
[2] Exhibit 2 page 379
1) the scheme does not prohibit more than one mezzanine in a multi-storey development;
2) there appears to be no restriction on the number of the mezzanines that may be accommodated within each storey provided each mezzanine does not exceed 200m2 and;
3) there appears to be no quantifiable limitation on the height of a “storey” in the Transitional Planning Scheme.
None of those propositions were a matter of controversy in the appeal.
The application was subject to detailed assessment in a report[3] by Chris Warren, Director of the Council’s Development and Environment Services Department. That report recommended approval of the application subject to conditions. A subsequent report of Mr Warren, dated the 19 April 2004[4], suggested that the Council continue to assess the application, without readvertising, on the basis of an amended plan, which showed one less mezzanine level and an overall reduction in the absolute height of the building.
[3] Ex 2 page 370
[4] Ex 2 page 499
Notwithstanding the recommendation of Mr Warren, the Council opposes the application.
In the course of the appeal there were some further revisions to the proposal plans, which were accepted as within the meaning of “minor change” for the purposes of the IPA. Those changes were made, at least in part, in order to ensure that the building complied with the eight-storey height limit, at least on the Appellant’s interpretation. On the hearing of the appeal, it was volunteered that a 60,000-litre water tank could be relocated from the roof of the northern tower to the roof of the central tower, to overcome any concern it might otherwise have constituted a ninth storey.
The relocation of the water tank would reduce the maximum height of the building, expressed in metres. It would also reduce the extent of variation in height, at roof level, in the building, but there would still be sufficient variation to create pleasing visual interest[5]. I am satisfied that the relocation would be appropriate and that it would not take the proposal, as amended, beyond the parameters of a “minor change” for the purposes of the IPA[6]. I am minded to impose a condition to that effect.
[5] T237
[6] There was no submission to the contrary in terms of “minor change”
THE ISSUES
The Council remained opposed to the proposal notwithstanding the amendments made in the course of the appeal. The grounds which were ultimately relied upon may be broadly summarised as follows: -
1) The mezzanines, as designed, do not meet the definition of a mezzanine in the planning scheme, with the consequence that, technically, they should be counted as additional storeys with, it was said, consequent non compliance with the development standards for maximum height and plot ratio.
2) That, even if the mezzanines were compliant and the proposal within the maximum height and plot ratio, the proposal should be refused on the basis that it conflicts with part 3.6 of the DCP and clause 25 of the planning scheme and is unacceptable in terms of its height, bulk scale, design and impact, including its impact on the streetscape.
3) The proposal would offend the Council’s Temporary Local Planning Instrument (TLPI), which was adopted after the application was made, and Councils draft new planning scheme, each of which would now provide a maximum building height of 27 metres, which is exceeded by the proposal.
THE LAW
The application was made on 8 January 2004. Pursuant to section 4.1.52(1) of the IPA, the court is required to decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new law the court considers appropriate. In this case, the relevant law applying when the application was made, was the Transitional Planning Scheme, including the Redcliffe Seaside Development Control Plan (“the DCP”). The TLPI[7] was not in existence at the time the application was made and is a matter of weight only. The Council’s draft planning scheme was not, by the time the appeal was heard, a “new law or policy”[8]. Nevertheless, the court is entitled to have regard to a draft planning scheme in accordance with the Coty principle[9].
[7] On 7 May 2004 a TLPI was made. A further TLPI came into force on 6 May 2005.
[8] I was informed during the hearing that the new planning scheme was due to take effect prior to Christmas
2005.I have not subsequently been informed whether this occurred. If it did, then weight could be given
to it pursuant to s 4.1.52, but that would not have altered the outcome of the appeal.
[9] See Coty (England) Pty Ltd v Sydney City Council (1957) 2LGRA 117, Lewiac P v Gold Coast City
Council (1994) 83 LGERA 224 and Yu Feng Pty Ltd v Maroochy Shire Council and Anor (1996) 92
LGERA 41
In deciding the application under the Transitional Planning Scheme, the court is required to apply the relevant provisions under the now superseded Local Government (Planning and Environment) Act, and in particular, the provisions which required refusal of an application which conflicts with any relevant Strategic Plan or Development Control Plan where there are not sufficient planning grounds to justify approving the application despite the conflict[10]. That requires an identification of the nature and extent of any conflict, a determination of whether there are any planning grounds which are relevant to the part of the application which is in conflict, and which justify approval and, finally, a determination of whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approval notwithstanding conflict[11]. The court is not required to undertake that process however, with regard to the provisions of the Transitional Planning Scheme other than the Strategic Plan and DCP or in relation to any provision of the TLPI or the draft planning scheme.
[10] See section 6.1.30 of the IPA and section 4.13(5)(A) of the P&E Act
[11] See Weightman v Gold Coast City Council and Anor (2002) 121 LGERA 161
None of the above propositions were controversial.
THE TRANSITIONAL PLANNING SCHEME
(i) Introduction
Whether a development is, in the circumstances, appropriate in terms of matters such as height, bulk, scale, design and presentation is something about which reasonable minds may differ. A proper assessment however, does not occur in a vacuum or rely simply on the whim or personal taste of the decision maker. A proper assessment must take account of the relevant planning strategies for the particular area. A given development on a particular site may be appropriate or inappropriate depending on the planning strategies embodied in the statutory planning instruments.
(ii) The DCP
The land falls within the DCP, which is the primary document for the assessment of this application under the Transitional Planning Scheme. A perusal of the DCP reveals the following: -
· Over time the role of the Redcliffe Seaside Village, as the town centre, has diminished as competition from other suburban centres has increased[12].
[12] Clause 1.0 of Part 1 at page 1
· The result of this competition has been an increase in vacant shops, a decline in visitor spending and a reduction of employment opportunities in the village[13].
[13] Clause 1.0 of Part 1 at page 1
· The DCP aims to address this and see the village “be developed as a cosmopolitan tourist orientated centre which will incorporate a diverse range of retail, commercial, administrative, recreational, cultural and residential facilities.”[14]
[14] Clause 1.3 of Part 1 at page 3
· The land use objectives for the DCP include the promotion of higher population densities in areas with access to public transport, retail and commercial activities and the encouragement of a diverse range of housing and accommodation choice for residents and visitors within the village[15].
[15] Clause 1.4.1(iv), (vi) at pages 3-4
· Visual amenity objectives include the enhancement of the image and attraction of the village by achieving a high standard of design and landscaping in new developments, the creation of a high quality streetscape, the creation of boulevards of predominately indigenous trees in key locations and the reinforcement, enhancement and protection, where appropriate, of important view corridors[16].
[16] Clause 1.4.4(i), (ii), (iv) and (vi) at page 5
· To achieve the objectives of the DCP, the DCP area has been divided into four precincts, together with a number of sub precincts.
· The subject site falls within the Residential precincts and, in particular, within the “High Density Residential and Mixed Uses” precinct, which is adjacent to the Council’s key waterfront enhancement sites of Suttons Beach and Settlement Cove. This is the highest density residential precinct.
· Land within that precinct could, prior to the DCP, be developed to a maximum height of 25 metres[17] “however due to market conditions and the size of lots much of the land remains developed with older housing stock”[18].
[17] See Brown T 427
[18] Clause 2.6 at page 32
· The intent is that the precinct may be developed for high rise residential or short term tourist accommodation facilities. Ancillary cafes or restaurant dining components are encouraged in the precinct, to maximise the waterfront location and outlook to Moreton Bay[19].
[19] Clause 2.6.1 at page 32
· The “vision” for the precinct includes the following[20]:
[20] Clause 2.6.2 at page 32
“(i) Increase in the population catchment for local businesses through the amalgamation of allotments for Residential developments;
…(iii) Enhancement of the image of the Precinct through achieving a high standard of design and landscaping in new developments;
(iv) Creation of avenues of predominately indigenous trees to enhance the visual qualities of the precinct.
…”
· “An increase in lot sizes through land amalgamations” is one of the outcomes which is sought and which will be considered in evaluating the effectiveness of the DCP land use strategy[21].
[21] Clause 5.1.2 at page 63
· Both the permissible gross floor area and the extent of site coverage are a function of the site area. Briefly expressed, the larger the site, the greater the permissible floor area and extent of the permissible development ‘footprint’.
· Where a proposal includes amalgamation, the permissible percentage site cover can also be increased by up to an additional five per cent as a “bonus”[22].
· The maximum building height is expressed as eight “storeys”[23]. Under the Transitional Planning Scheme, a mezzanine not exceeding 200m2 in floor area is excluded from the definition of “storey”[24]. The previous absolute height limit of 25 metres does not feature in the DCP. Indeed the DCP imposes no absolute height limit on buildings within the precinct.
· There are a number of design requirements which relate to all precincts[25]. These relate to matters including building orientation and views[26] and use of material and finishes[27], frontage design[28] and landscaping[29]. Buildings should contribute positively to the streetscape.
· Insofar as building orientation and views are concerned, DCP map 3 shows the Marine Parade Frontage as part of the major view corridor from Marine Parade towards Moreton Bay. That view corridor is not depicted as extending across the subject site to sites further removed from Moreton Bay. The DCP encourages buildings which overlook Moreton Bay to be orientated to address that feature[30], encourages variety in materials and finishes to provide suitable visual interest[31] and requires that building façades not be continuous in form but should, where appropriate, include changes in setback distance from road frontages, insets, changes in wall/face angles and curvature as well as variation of building materials and finishes[32]. All buildings should be designed to be attractive and large expanses of blank walls are to be avoided, particularly in visually prominent locations[33].
· A high standard of landscaping is required for all new developments. Highly visible areas are to be landscaped to provide a high degree of visual interest[34].
· The precinct, within which the subject site falls, extends, in a linear way, along Marine Parade. Properties further inland of the subject site, including Sutton Street, are contained within the Medium Density Residential Precinct, which has a maximum height of between three and six storeys depending upon whether development bonuses are awarded. Map 3 does not show any major view corridor extending from that precinct to Moreton Bay across the High Density Residential and Mixed Uses Precinct fronting Marine Parade.
· Within the High Density Residential and Mixed Uses Precinct, the DCP requires development to be designed in accordance with part IV clause 25 of the planning scheme, except where that clause conflicts with the provisions of section 2.6.4 of the DCP[35].
[22] Clause 4.2.6 at page 61
[23] Clause 2.6.4(b) at page 34
[24] See page 20 of the Redcliffe Consolidated Planning Scheme 1996
[25] Clause 3.6 at page 44
[26] Clause 3.6.1 at page 44
[27] Clause 3.6.2 at page 46
[28] Clause 3.6.3 at page 46
[29] Clause 3.6.4 at page 49
[30] 3.6.1
[31] Clause 3.6.2
[32] Clauses 3.6.1 and 3.6.3
[33] Clause 3.6.3
[34] Clause 3.6.4 at page 49
[35] See clause 2.6
The DCP is not one which seeks to preserve the status quo. It seeks to address the diminished role of the seaside village, and resultant increase in shop vacancy rates, decline of visitor spending and reduction in employment opportunities, by fostering the development of the village as a cosmopolitan, tourist orientated centre with a diverse range of facilities. It seeks to do so by encouraging new development, including new high density, high rise[36] residential development, within precinct 3(b), on the elevated Marine Parade frontage looking out, over the red cliffs of Sutton Beach, to Moreton Bay. In the same precinct it encourages the greater development made possible by lot amalgamation in order to attract an increased population catchment. Change by way of new and substantial development is clearly both contemplated and encouraged.
[36] Eight storey development might generally be regarded as medium rather than high rise development, but it
is referred to, in the context of the DCP, as high rise in Clause 2.6.1
In a number of respects, the subject proposal is of the kind encouraged by the DCP. It: -
1) proposes a high density residential development in the precinct designated for such development;
2) proposes not just residential development, but also other components, including a ground level restaurant dining component, as specifically encouraged in the intent for the precinct;
3) proposes the amalgamation of allotments to create a larger site for residential development, as encouraged by the DCP, in order to increase the population catchment;
4) is orientated towards the major view corridor to Moreton Bay and takes advantage of that outlook;
5) will have on-site landscaping and street plantings, to contribute to the avenues of trees envisaged by the DCP, and promote a high degree of visual interest for the main pedestrian route along Marine Parade;
6) incorporates a range of design measures to ensure that its façade is not continuous in form and large expanses of blank walls are avoided. Indeed, it has been designed to present as five components two of which are closest to the Marine Parade frontage and three which are closest to the Sutton Street frontage. The façade to each street frontage is broken up, although more extensively so with respect to the Marine Parade façade. Viewed from an angle the development, although one building, would present similarly to an aggregation of separate buildings;
7) is of a high standard of design and would make a positive contribution to the streetscape. It compares well with the standard of design in the locality. Mr Powe expressed the view that the proposal represents a significant advancement in architectural design for Redcliffe. Streetscape issues are discussed further later in these reasons.
Counsel for the Respondent, in the course of submissions, relied upon what were asserted to be conflicts with the planning scheme, particularly with the DCP, as a consequence of conflict with clauses 25(1), (6) and (10) of the planning scheme and clause 3.6 of the DCP (concerning streetscape).
(iii) Clause 25
Clause 25 contains many provisions. Those relied upon in the Respondent’s submissions were the following: -
“25(1) multiple dwellings shall be designed and constructed to achieve the following objectives –
To encourage character and density of development commensurate with the intent of the zone in which the development is proposed.To maintain and where possible enhance residential amenity both internal and external to the site.
· …
· To take proper account of the topography, drainage patterns and physical character of the site and surrounds
· To provide for adequate day lighting, ventilation and natural climate control, in particular to ensure that, wherever possible indoor living areas, courtyards, balconies and other forms of private open space have a northerly aspect
· …
(6) Amenity requirements
(a) The Table of Zones in Table 5 hereto, specifies building heights in various zones
(b) In considering any application to erect a multiple dwelling, the Council shall have regard to the following matters: -
(i) The existing and future amenity of the locality;
(ii) Whether the locality is suited to the proposed height of the building, having regard to the Council’s planning intent for the area and existing buildings and approvals;
…
(v) The architectural merit of the building design
(vi) Such other matters as the Council may consider to be relevant.
(10) Aesthetics
(a) In order to protect and enhance the amenity of development in the City, development shall not be carried out if, in the opinion of the Council, it would: -
By its design, orientation or external cladding have or be likely to have detrimental effect on the amenity of the area generally surrounding or immediately abutting the development; (examples include: visual monotony, the building(s) appearing stark or austere or creating significant reflection problems – heat or glare).
(b) Where the Council considers that the design of a building will result in any of the concerns in (a) above or such other concerns as reported by the town planner, Council may require the plan to be modified by altering the design, the height of the building, its location on the land, the materials used in the external finishes, off-setting walls or such other measures in order to improve the aesthetics of the building.”
There are, of course, other provisions in clause 25 which were not ultimately controversial. One of the provisions of clause 25(1) seeks to have multiple dwellings designed to “take advantage of pleasant views wherever possible,” something which is evident in the design of the subject proposal.
Clause 25 also contains provisions in relation to shadowing. That was initially a matter of some debate, but was adequately dealt with in the evidence of Mr Hudson[37]. Mr O’Brien confirmed that, in his opinion, there was no potential difficulty with shadowing[38]. I am satisfied that the proposal would not offend the provisions in relation to shadowing and Counsel for the Respondent did not assert to the contrary in the course of submissions.
[37] T188
[38] T469
The issue concerning provision of adequate day lighting, ventilation and natural climate control can be disposed of relatively briefly. The provision encourages “wherever possible” a northerly aspect for indoor living areas, court yards, balconies and other forms of private open space. The provision is obviously for the benefit of the future residents of the proposed development. In this case, the most desirable aspect is obviously that to the east overlooking Moreton Bay. It has already been noted that the DCP and, indeed, clause 25 encourages development to take advantage of that aspect. To fail to do so would obviously be foolish and would tend to degrade, rather than improve, the internal amenity for residents. I am satisfied that the proposal would provide adequate day light, ventilation and natural climate control. I do not think conflict arises by reason of the failure to adopt the general preference for a northerly aspect. If that were thought to cause conflict then, for the reasons already explained, there are sufficient planning grounds to justify approval notwithstanding such conflict. Further, I am satisfied that the planning grounds in favour of the proposal overall, as referred to herein, would warrant approval notwithstanding. Mr Brown, who had drawn attention to the issue, confirmed that he did not raise it as a reason for refusal[39].
[39] T435
Insofar as the provisions of clause 25 otherwise, the Respondent submitted that the proposal was grossly out of character with existing and likely future development in the locality and would detrimentally impact upon amenity as a consequence of its height, length, overall bulk and lack of proportionality with adjacent buildings. In assessing those issues I have had the benefit of evidence from a number of witnesses as well as a number of visual aids, including a model, a hologram, photomontages and “perspectives” (showing relative massing) and photographs of exercises using balloons. I also had the benefit of an inspection of the site and the locality.
While I was assisted by a consideration of the evidence of each of the experts, ultimately I prefer the evidence of the Appellant’s witnesses to those of the Respondents. The Respondent’s witnesses, including Mr O’Brien, generally placed too much weight on the maximum dimensions of the single building and their relativity to those of existing buildings and the new 27 metre height limit, and too little weight on the planning intent reflected in the DCP, and the measures adopted in the design of the subject proposal to deal with its size and proportions.
In light of the DCP, it could hardly be said to be beyond reasonable expectations to find that: -
1) Development of this nature is proposed on this site in the High Density Residential and Mixed Uses Precinct.
2) Site amalgamations, as encouraged by the DCP, are proposed to achieve a larger overall development on a larger site than those developments which have occurred on smaller sites, without taking up the DCP’s encouragement to amalgamate to the same extent, or at all.
3) It is intended to orientate the building to Marine Parade and to use mezzanines in some storeys to take fuller advantage of the views to Moreton Bay.
4) Buildings in the area will not be of the same absolute height, given the absence of a height limit, expressed in metres, in the DCP and the concessional treatment given to mezzanines.
5) The proposal is much larger and taller than the adjacent and nearby older housing stock or the smaller scale developments in the Medium Density Residential Precinct on the opposite side of Sutton Street.
It should be noted that there is already variation among existing buildings and this is evident among the existing multiple dwelling developments, as well as between that development and the older housing stock.
The Respondent contended that, theoretically at least, one could take undue advantage of the DCP’s encouragement for amalgamation, absence of a height limit expressed in metres (either for a building or a storey within a building) and concessional treatment of mezzanines, to propose an enormous building (which could, at least theoretically, be in excess of 50 metres in height) with mezzanines on every level, across an enormous site (a hypothetical example of a 100 lot amalgamation was referred to), designed in a way which would have a significant adverse effect in context, contrary to clause 25. The Respondent contends that the subject proposal crosses the line of acceptability, but I am, on balance, satisfied that it does not.
Much was made of the maximum dimensions of the building, being 37.64 metres in height above ground level (which dimension does not take account of the relocation of the water tank), 87.5 metres long and 43.8 metres deep.
A direct comparison of those dimensions with the height and dimensions of adjoining buildings is however, somewhat misleading. The building would not be of a uniform height, nor would those parts of the building at the maximum height be seen from all perspectives. I have already noted that the building has been broken up to present as five components. The two components closest to Marine Parade have a maximum height of approximately 28.5 metres and constitute the bulk of the building as seen from Marine Parade. Those elements of the building which exceed that height are the upper portions of the three components which are closest to Sutton Street, are set back significantly from Marine Parade and constitute only a portion of the building footprint. As was pointed out in the Appellant’s case, the variation provides pleasing visual interest compared with an entirely flat roof design. Further, the height of the building steps down, including as it approaches the side boundaries. Insofar as the length of the building is concerned, it should be noted that the development would not present a flat, austere or featureless façade to either street frontage. The building is broken up and there are substantial variations in setback.
The measures incorporated into the design of the building, in my view, render comparisons such as Mr O’Brien’s comparison of the subject with the Redcliffe City Hospital, of little, if any, assistance. It should also be noted that the low rise nature of the area surrounding the hospital differs from the existing and intended built form in the subject area.
Mr Cox said that his difficulty with the bulk of the proposal was not so much due to the volume of the building, but its arrangement[40]. It was suggested that a larger (amalgamated) site does not have to support a single building as large or bulky as the subject. A developer could, it was said, choose to develop an amalgamated site for a number of separate towers or for separate towers over a common podium. Particular reference was made to Figure 7 at page 3-30 of the draft planning scheme, which shows an example of the latter. Mr O’Brien also produced a preliminary sketch of an alternative form of development.
[40] T380
While I have no difficulty with the concept of a building designed in that way, it is not something which the DCP necessarily requires, nor do I think it is necessary in order for the subject proposal to be acceptable in the circumstances. The visible breaks in such designs would be observed from a limited range of viewing positions. As the visual amenity experts agreed in their meeting[41], separate buildings would also have a “united” appearance, except when viewed from a limited number of locations directly opposite the space between the buildings. The proposed building has been heavily articulated and treated and is appropriate.
[41] Exhibit 29A, para 2
While each of the visual aids have their limitations, I found the model and Mr Van Pelt’s photo montages to be of the most assistance. They assisted me in forming the conclusion that, whilst larger and taller than existing development in the locality, the proposal, as designed, is not out of character or inappropriate having regard to the matters in clause 25 of the planning scheme or, indeed, otherwise. I also do not consider that the proposal is in conflict with the Built Environment Objective in the Urban Environmental Goal of the Strategic Plan, to which Mr Brown referred.
In discussing these issues I have not traversed every design detail evident in the proposal, but I am satisfied that the building, as designed, will be both attractive and appropriate in its context, having regard to the relevant planning intent.
Reliance was placed upon the 27 metre height limit for eight-storey development in the TLPI and draft planning scheme in relation to the future amenity of the locality. That is dealt with later but, for the reasons discussed, I do not consider that the proposal would have an undue impact upon the future amenity of the locality, even assuming strict compliance, in the future, with the 27 metre limit. The proposal would exceed the nominated height, but would be compatible.
(iv) Streetscape
Part 3.6 of the DCP provides, in part, that “buildings throughout the village should contribute positively to the streetscape.” Part 3.6 goes on to deal with a number of specific matters including building orientation and views, materials and finishes, frontage design and landscaping. As has already been noted, the development appears to respond well to those provisions.
Mr O’Brien expressed the opinion that the proposal would be inconsistent with and weaken the streetscape for a number of reasons, most particularly set out on page 13 of his report. A number of those reasons relate to the relative height, length and scale of the building. For the reasons already given, I do not consider that the proposal is inappropriate in relation to those matters.
In other respects, Mr O’Brien gave too much weight to matters of difference between the subject proposal and existing development.
Mr O’Brien drew attention to the fact that the building has been orientated with its widest façade presenting to Marine Parade and Sutton Street. That is unsurprising given the size, shape and orientation of the site. It has already been noted that the Transitional Planning Scheme (including DCP) encourages development which takes advantage of the site’s waterfront location and outlook to Moreton Bay. The DCP also encourages site amalgamation. It is within reasonable expectations that, as one takes up that encouragement, by amalgamating allotments along Marine Parade to achieve a larger site with a longer frontage to Marine Parade, the length of building façade to that frontage will also potentially grow, unless a “separate tower” alternative is adopted (something the DCP does not necessarily require).
The fact that the façade is longer than achievable on other sites does not, of itself, make the development inappropriate, either in terms of streetscape presentation or otherwise. It is, of course, necessary to assess the appropriateness of the particular façade and the way it is treated, including the way it responds to the provisions of clause 3.6.3 of the DCP concerning frontage design. I have concluded that the design, in this case, is appropriate. I do not consider that the proposal is inappropriate simply because it, unlike the buildings on some other smaller sites, presents its wider façade to Marine Parade and Sutton Street[42].
[42] It should be noted that “Seabrae’ to the north, also presents its longest façade to the same streets, as can be
appreciated from the aerial photograph at page 33 of Exhibit 4B
Mr O’Brien also drew attention to the greater setbacks from the street provided for in the subject development. That is a point of difference in comparison to other existing development, but not one which leads me to conclude that the proposal would have a negative impact upon the streetscape. Indeed, the generous setbacks are matters which Mr Van Pelt rightly relies upon as one of the factors which will improve the building’s contribution to the streetscape[43].
[43] Exhibit 5A, page 16
Mr O’Brien also criticised the proposal as not being respectful of the “Redcliffe coastal visual character.” That is a somewhat imprecise notion, but it is evident that the building is both designed and orientated in a way which responds to its coastal location. It is difficult to see that, in an architectural sense, its response to its location is either inferior to existing development in the village or inappropriate. I reject Mr Cox’s description of the proposal as presenting as a commercial rather than as a residential building[44].
[44] T346
There were other matters to which Mr O’Brien referred, but none lead me to the conclusion that the proposal would detrimentally affect the streetscape.
Mr Van Pelt pointed to the existing variation in the streetscape and some of the deficiencies in its elements[45]. Leaving to one side the magnificent views available to Moreton Bay from Marine Parade, I accept Mr Van Pelt’s assessment that neither the streetscape of Marine Parade nor Sutton Street is “markedly delightful”[46]. His view, which I accept, is that the proposal, given its architectural treatment, setbacks, and proposed landscaping on site and along the street frontages[47], would represent a “major improvement” on existing development[48]. I am satisfied that it would make a positive contribution to the streetscape.
[45] T242-244
[46] See, for example, pages 1 and 2 of Exhibit 30
[47] The landscape plan appears at page 10 of Exhibit 5B. Some reference was briefly made to the fact that it
contemplates street planting on the eastern side of Sutton Street rather than the western side where
DCP Map 8 shows an intent for an avenue of trees. This was not something relied upon by Counsel
for the Respondent in submissions at the end of the case. It could be cured by a condition requiring
planting on the other side of Sutton Street, but I do not think that is called for. It would seem desirable
to provide planting directly outside the development. The conflict, if there be one, is minor, would be
justified (given the desirability of planting adjacent to the development) and would, in any event, be
overwhelmed by the planning merits of the proposal, as a whole, which justify its approval
notwithstanding.
[48] T245
(v) The Mezzanines
The Respondent’s contention that the proposal exceeds the number of storeys and the permissible plot ratio of the DCP ultimately centred upon the question of whether the mezzanines fit within the relevant definitions of the DCP.
There were some other differences in the calculation of gross floor area. Such calculations can be quite technical. It emerged that Mr Cox was at some disadvantage to Mr Hudson (the draftsperson responsible for the amended proposal plans), in interpreting the plans and included some areas which should have been excluded from the calculation. The areas of difference between them, save for the mezzanine issue, narrowed in the course of the trial. Accepting Mr Cox’s calculations otherwise, I am nevertheless satisfied that, the mezzanine voids to one side, the proposal could be conditioned to otherwise meet the maximum plot ratio requirement at the detailed design stage. Submissions at the end of the hearing focussed on the primary area of difference, namely the mezzanines.
Insofar as the mezzanines are concerned, the Appellant’s approach was to exclude them from the calculation of the number of storeys, but to include the physical floor area of those mezzanines in the calculation of Gross Floor Area (“GFA”). That may be a conservative approach. GFA is defined, for the purposes of the DCP, to be the sum of the floor areas of all storeys[49]. It has already been noted that, for the purposes of the planning scheme, a storey does not include a mezzanine (not exceeding 200 m2)[50]. It is arguable that the floor area of a mezzanine, not being part of a “storey”, should not be included in the calculation of gross floor area for the purposes of calculating the maximum permitted plot ratio.
[49] DCP page 86
[50] Consolidated Planning Scheme page 20
It may be noted that the draft planning scheme also provides that a storey does not include a mezzanine[51]. Unlike the DCP, it defines GFA as the sum of the floor areas of all storeys and mezzanines.
[51] Exhibit 8A, page 7-29
The Respondent contends that the so-called “mezzanines” in the subject proposal are not mezzanines as defined and, in any event, exceed the 200 m2 limit on levels 6 and 7. Further, it is said that if the mezzanines be storeys, then their floor areas should be measured as “the gross area measured over the enclosing walls”[52] of those storeys, even though the physical floor area of a mezzanine may be considerably less, having regard to the void between the end of the mezzanine and the wall of the building. Consequently, it was said that the building offends both the maximum height and maximum plot ratio provided for in the DCP. If, on the other hand, the mezzanines are compliant, then, subject to the relocation of the water tower, the building does not exceed either the maximum height or maximum plot ratio[53].
[52] See definition of “floor area” at page 8 of Consolidated Planning Scheme
[53] It was conceded that in paragraph 74 of the Respondent’s submissions that “if they are true mezzanines
the area of the void is not taken into account.”
The term “mezzanine” is defined in the Transitional Planning Scheme as follows:
“Mezzanine – means that space within a room and which is situated between an intermediate floor erected within the room and the surface immediately above, which is the floor level, ceiling or roof.”
The Respondent contends that the “mezzanines” in the subject proposal do not meet the definition because they are not within the controlling “room” and there is no “intermediate floor erected within the room.” It was pointed out, that while the mezzanines overlook the “living/dining” room below, the floor of the mezzanines is to be constructed immediately on top of other rooms, including the minor bedrooms and kitchen.
The argument that the mezzanines were more than 200 m2 relied upon aggregating the areas of mezzanines in more than one unit. That would seem to depart from the approach of focusing upon the “space within a room”, which is the focus of the Respondent’s primary argument.
The Appellant submitted that the mezzanines could still meet the definition by reference to the room to which the mezzanine would be open, notwithstanding that the floor of the mezzanine was to be built on top of other rooms. That is, one can have an “intermediate floor” within a room to which it is open, even though that floor is built on top of other rooms. It was also submitted that there was no basis to aggregate mezzanines in different units for the purposes of the 200 m2 limit and that counting “voids” as floor space for the purposes of the calculation of GFA was contrary to a purposive approach to construction.
The Appellant’s contentions, in relation to the definition of mezzanine and the calculation of the 200 m2 floor area for mezzanines, are not without merit and their acceptance would make it unnecessary to consider the question about whether “voids” should be counted in the calculation of gross floor area, since the Respondent did not suggest that was so in the case of compliant mezzanines[54]. It is, however, unnecessary for me to reach a concluded view on the construction issues, since I am satisfied that the application ought be approved even if the Respondent’s interpretation were accepted.
[54] That is consistent with the Respondent’s approach to calculating the floor area of a storey by reference to the area over the enclosing walls, rather than to physical floor space. The Respondent did not concede that the physical floor space of a compliant mezzanine should not be counted, but the Appellant’s calculations include that area in any event
I note that the definitions are proposed to be changed in the draft planning scheme in a way which would seem to make it irrelevant to consider whether a mezzanine is a space within “a room” or whether there is an “intermediate floor erected within the room” or whether a mezzanine is greater than 200 m2. Under the draft scheme, mezzanine is defined, relevantly, by reference to “a floor level constructed in between a floor of a dwelling unit … and the surface immediately above the floor”, where that floor level has an area that is no more than 75 per cent of the area of the floor below and adjoins a void in the dwelling unit with a clearance of at least 3 metres from the edge of the mezzanine to the wall of the dwelling unit[55]. Further, the exclusion of a mezzanine from the definition of a “storey” in the draft planning scheme is not subject to a qualification as to the floor area of the mezzanine[56].
[55] Page 7-27 of Exhibit 8A
[56] Page 7-29
The mezzanine issue has a significant numerical effect on the calculation of the m of storeys and gross floor area and, in turn, on a conclusion as to whether there would be compliance with the provisions of the DCP with respect to maximum height[57] and plot ratio, but the argument is more technical than substantive. The building is no higher (either in absolute terms or in the perceived number of storeys), longer or wider than it could or would be if compliant mezzanines were used in the same number of storeys, as is permitted. Indeed, the Appellant sought an opportunity to modify the internal design of the units to achieve compliance, if that were necessary to gain approval, but it is difficult to see what that would achieve. It would not change the visual presentation of the building or alter the impacts of which the Respondent complains. Indeed, the Respondent confirmed that it would remain opposed to the development, on those grounds, even if the mezzanines were compliant.
[57] If the proposal exceeds eight storeys, then it also falls within column IV of the table of development for
the precinct, being the table for development which is inconsistent with the intent of the precinct and
accordingly, within the “prohibited uses” column v of the Table of Uses for the Comprehensive
Development Zone. That, in turn, triggers s.6.1.2(3) of IPA and affects which provisions of the Repealed
Act are relevant to the decision (s.6.1.30) such that, for example, the applicable “approval notwithstanding
conflict” provisions are those in s.4.4(5A) rather than the identically worded s.4.13(5A), but none of this
would, in the circumstances, change the outcome of the appeal.
The mezzanines, as currently designed, serve their intended function and would take advantage of the site’s outlook to Moreton Bay, for the main bedroom and main living areas in the relevant units, to the benefit of the amenity of proposed residents[58]. Mezzanines which were smaller or inserted into the space above, rather than open to and overlooking, those living areas are only likely to offer a reduced, rather than an enhanced, internal amenity, for no apparent material benefit otherwise.
[58] Powe T 226 ll 48-54
In the circumstances I am satisfied that there are sufficient planning grounds related to the point of alleged conflict, to justify approval, notwithstanding any conflict. Further, even if that were not so, I am satisfied that the planning grounds in favour of the application, as a whole, as discussed herein, are, on balance, sufficient to warrant approval, notwithstanding the conflict alleged to arise by reason of the mezzanines not conforming with the definition.
TLPI AND DRAFT PLANNING SCHEME
It was submitted for the Respondent that the 27 metre height limit for eight-storey development, as referred to in the TLPI and the draft planning scheme, should be seen to reflect what was intended for the area in any event, pursuant to the DCP. It is difficult to read that into the Transitional Planning Scheme.
Clause 25(6)(a) of the Transitional Planning Scheme, extracted above, specifies height limits in various zones by reference to Table 5. Table 5, in turn, specifies the maximum height of buildings above ground level for different zones either by way of a specified number of storeys or a specified number of metres[59]. Those different control mechanisms are used selectively. In the case of the Residential B and C zones, maximum height is expressed by reference to storeys. In the Residential D zone, General Business “B class” zone and Special Business zone, the maximum height of buildings is, instead, specified as a number of metres above ground level. In the case of the Comprehensive Development zone, in which the subject site is located, the height is specified by reference to the DCP. The relevant DCP, in this case specifies height by reference to storeys rather than metres, which is a change from the previous position which applied to the land, as alluded to in the DCP itself. It is difficult to infer an intention in the transitional planning scheme that development in this area be limited to a specified height in metres.
[59] Page 57
It is true that the subject development would exceed the 27-metre height referenced in each of the TLPI and the draft planning scheme. Mr O’Brien carried out an exercise of colouring those parts of the elevation of the building above the frame extending to the top of the components closest to Marine Parade, as seen from different vantage points[60]. That frame, at about 28.5m, marginally exceeds the new 27m limit, but Mr O’Brien thought that acceptable in terms of height[61].
Mr O’Brien’s exercise however, was affected by errors, which saw him colouring parts of the building which would be below that height.
[60] Exhibit 31
[61] T463
It was pointed out, on behalf of the Appellant, that it could not be assumed that no building would be approved, under the new planning scheme, if it exceeded 27 metres in an eight-storey area. That is because the draft planning scheme does not purport to prohibit someone from making an application for such development and, in any event, there is an ability, under the IPA, to make an application (superseded planning scheme).
It was further pointed out that the draft planning scheme contemplates a variation of building heights along Marine Parade, including buildings of up to 12 storeys in height adjacent, or in close proximity, to shorter buildings. A perusal of the draft Building Heights Plan in the draft planning scheme shows that the site on the southern corner of Marine Parade and Anzac Avenue is designated for development to 12 storeys and 39 metres. It immediately adjoins the eight storey (27m) areas to the south which includes the subject site. There are three other areas, further to the north along Marine Parade, which are also designated as 12 storeys (39m). Other properties in that area are generally of smaller individual lot sizes (as can be seen from the cadastral base on the plan) and are designated for 6-12 (21-39 metres) or 3-12 storeys (12-39 metres). The only real explanation proffered for the large variation in the nominated building height permitted on those sites was that the draft scheme recognised the potential for the taller development which might be achievable on larger sites (subject to site amalgamation).
The draft scheme clearly envisages further change and development. As Mr Buckley said,[62] the area will continue to evolve as an area of taller buildings. The draft planning scheme envisages the development of buildings along Marine Parade which are taller than either the existing development or the subject proposal and admits of the prospect of a significant variation in height between adjacent buildings.
[62] T301
Even if attention was focused only on the eight-storey (27 metre) designated area and even if it was assumed that the TLPI and subsequent new planning scheme effectively prevented future development in excess of 27 metres in that area, I would not be inclined to refuse the subject application. The subject application is entitled to be determined on the laws and policies which existed at the time it was made. While the TLPI and draft planning scheme are relevant, they are not, in this case, determinative.
The proposal, if approved and developed, would, on the stated assumptions, be higher than existing or future development in that part of Marine Parade so designated, but I do not consider that the development would cut across the planning strategies in a way which would render them nugatory or their future implementation substantially more difficult. It is possible to have that effect where, for example, a new high-rise building is proposed in an area which is to be limited to low-rise development in the future. But that is not the case here. The proposed building would be higher than, but not incompatible with, buildings designed to the limits in the subsequent planning documents.
I do not consider that the proposal would ‘sabotage’ the ‘gradation’ in maximum building height designations along Marine Parade. Future development in the subject precinct will be governed by the new planning instruments and the draft scheme contemplates development, in the area to the north, up to 12 storeys and 39 metres, which exceeds the height of the subject proposal, as modified.
Counsel for the Respondent relied on conflict with other parts of the draft planning scheme, other than the height maps (and clause 4.3.3). The provisions referred to however, raise substantially similar issues. They mainly relate to issues of height, scale, design and impact on character, amenity and streetscape, which have otherwise been considered.
I do not consider that the proposal ought be refused on the basis of departure from the content of the TLPI or draft planning scheme.
CONCLUSION
For the reasons stated, I consider that the appeal ought be allowed and the application approved. The proposal was obviously designed with the Transitional Planning Scheme, particularly the DCP, in mind and to take up the encouragements it offered. They are the primary documents against which the proposal ought be assessed. While the Respondent alleged conflict with parts of those documents, I consider that there are sufficient planning grounds to justify approval, notwithstanding the conflict alleged, even if it be made out. While the proposal departs from the TLPI and the draft planning scheme, I am not prepared to give those documents decisive weight in the circumstances and I do not consider the proposal will render the planning strategies embodied in them nugatory or significantly more difficult to implement in the future.
The proposal represents a well-designed building which takes up the encouragements of the DCP, including with respect to the amalgamation of allotments, and would, in the respects identified, materially advance the objectives of the DCP, be compatible having regard to existing and likely future development and character in this area, make a positive contribution to the area and ought be approved.
The appeal will be allowed and the application approved, subject to conditions, including a condition requiring relocation of the water tank. I will, at this stage, simply adjourn the proceedings to allow for the formulation of conditions.
- - - - -
0
2
0