Szylkarski v Brisbane City Council
[2012] QPEC 80
•10 December 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Szylkarski & Ors v Brisbane City Council & Anor [2012] QPEC 80
PARTIES:
MARK SZYLKARSKI, JADON SMITH, JEFF WILLIAMS, BRADLEY HYATT, KIRSTEN FERGUSON, MELISSA TOWNSEND, NATHAN TOWNSEND, CECIL FOX, DEBRA FOX, LYDIA COMMINS, MELVYN PARKER, MONICA PARKER, GREIG BROWN, LORREN BOEN, CHRIS BOEN AND VIRGINIA BOEN
(appellants)v
BRISBANE CITY COUNCIL
(respondent)and
SPECIALIST DEVELOPMENTS PTY LTD
(ACN 153 408 158) AS AGENT FOR CORNELIU ROBERT TELEGARU & CORNELIA TELEGARU
(co-respondent)FILE NO.:
984/12
DIVISION:
Appellate
PROCEEDING:
Appeal Hearing
ORIGINATING COURT:
Brisbane
DELIVERED ON:
10 December 2012
DELIVERED AT:
Brisbane
HEARING DATE:
19-21 November 2012, written submissions to 7 December 2012
JUDGE:
Robin QC, DCJ
ORDER:
Appeal allowed.
CATCHWORDS:
Sustainable Planning Act 2009 s 326
Submitter appeal against Council approval of a multi-unit dwelling in a Demolition Control Precinct – whether proposal compliant with performance criterion that “development size and bulk must be consistent with the low to medium density of the locality” – site the only vacant parcel in a street overwhelmingly characterised by smaller pre-1946 character houses – relevance of acceptable solutions considered – proposal fell short in frontage and in rear boundary setback, excessive in gross floor area - whether grounds established sufficient to overcome conflict with planning scheme
COUNSEL:
Mr M. J. Batty for the appellants
Mr T. T. Trotter for the respondent
Mr B. D. Job for co-respondent
SOLICITORS:
Mr Batty appears by direct brief for the appellants
Brisbane City Legal Practice for the respondent
McInnes Wilson Lawyers for the co-respondent
[1] This is an adverse submitter appeal by local residents against the respondent Council’s approval of a development application for a development permit for a material change of use for the purpose of a multi-unit dwelling and for a preliminary approval to carry out building work for the purpose of a multi-unit dwelling at 22 Goodwin Terrace, Moorooka. The land, a 607 m2 parcel, with a frontage to Goodwin Terrace of about 15.088 m according to sheet 2 of the proposed site plan (appeal book Tab 3), is presently vacant. In City Plan 2000 it comes within the Low-Medium Density Residential Zone and also within a Demolition Control Precinct. It is included in the Moorooka District Local Plan, which does not recognise Goodwin Terrace in the way that some other localities are recognised, such as the Clifton Hill War Service Homes Estate[1] (also listed environmental features, “views” and the Moorvale Shopping Centre). However, inclusion in the Precinct brings a similar kind of protection.
[1]The local plan provides:
“2.1New residential development is to complement the War Workers and Soldier Settlement housing that contributes strongly to the character of the District. To preserve this character, resubdivision of house lots in the Clifton Hill War Service Homes Estates will be strongly discouraged.”
[2] Essentially, the appellants say the proposal is too big, its size and bulk being allegedly inconsistent with the “low to medium density” of the locality contrary to performance criterion P1 in s 4.3 of the Residential Design-Low Density, Character and Low-Medium Density Code in Brisbane’s City Plan 2000.
[3] Beaudesert Road, Moorooka bisects the Moorvale Shopping Centre, a large multi-purpose centre at MP3 Level, coming next in the hierarchy after the Brisbane CBD and higher order centres such as those at Chermside, Mt Gravatt and Indooroopilly. There is a relatively new full-line Woolworths supermarket. The northern end of the Centre coincides roughly with Pampas Street on the east and Durack Street on the west. Pampas Street crosses Goodwin Terrace (which runs parallel to Beaudesert Road in the relevant sections) and forms the stem of a “T” with Koala Road further east which runs parallel to Goodwin Terrace and continues to do so when both veer east a short distance to the south to run parallel to Mayfield Street; to the north there are no more cross-streets. Both Goodwin and Koala terminate at Vendale Avenue, which gives a northern connection to Beaudesert Road.
[4] The Demolition Control Precinct (DCP), based on substantially intact pockets of pre-1946 housing, effectively surrounds the MP3 Centre, it being designated north of Durack and Pampas Streets to and beyond Vendale Avenue and for some distance. On the east, the entire block bounded by Beaudesert Road, Vendale, Goodwin and Pampas is in the DCP, as is every parcel across Goodwin Terrace. The co-respondent developer’s site is the third on the eastern side from the intersection with Pampas Street. The DCP designation continues past Pampas Street on both sides of Goodwin Terrace past the “bend” in it and about two thirds of the way to Weir Street. Although there are numerous properties in Koala Road that may merit the designation, it has not been applied, perhaps because the judgment was made that it was preferable to have the precinct end at the rear boundaries of allotments, which would tend to preserve an intact character for streets as opposed to urban blocks.
[5] In the past a house has stood on 22 Goodwin Terrace (Lot 37 on RP46084), one constructed after 1946, so that the DCP provisions in City Plan designed to preserve pre-war housing would have created no issue in respect of its removal. In 2008, a development approval resulting from a code assessable development application authorised the establishment of a large two storey residence with a gross floor area (GFA) exceeding 300 m3. The currency period (“relevant period”) for that approval issued by the respondent expired 31 [sic] November 2012. In those circumstances, s 3.5.5(3)(d) of the Integrated Planning Act 1997 (IPA) may not require much, if any weight to be given to that approval. Nonetheless, the potential for a similar-sized (or larger) residential building on the site pursuant to the planning arrangements has to be accepted; the Council and the co-respondent make much of that potential, which it can be said bears on the expectations which local residents may reasonably entertain about new development on the only vacant land in their vicinity.
[6] The proposal is for five units in a single building which is so articulated that it presents as three. The site falls away to the east from Goodwin Terrace. Unit 1, at the front, is a two-level one addressing the street (as City Plan requires) and, consistently with the terrain, having its ground floor slightly lower; the street elevation exhibits features of pre-1946 housing designs, such as multiple gables and finishes having the appearance of chamferboard and natural timber (“western red ceda [sic] walls”). Behind, at ground level, is covered parking for six vehicles, one for each unit, one for visitors. Immediately behind unit 1, above the parking, and about a half-floor higher is unit 2, a small one bedroom unit of two levels, one of which is described as a mezzanine. Except for a roofed verandah/balcony on the northern side of lot unit 2, once one gets to it, that is an end of gabled roof forms or, “chamferboards” apart, much homage to pre-1946 styles. Unit 3, at the same level as unit 2 and immediately abutting it, is a single storey, above parking. Units 4 and 5 are of two storeys and share what presents as a single semi-detached structure adjoining unit 3 and representing the widest part of the built form with minimum setbacks of 2 m on each side. This third built element is divided north-south, as opposed to east-west. The falling terrain means that it is the upper levels of units 4 and 5 that continue the floor level of unit 3, the balance of their living areas being underneath.
[7] An argument was made for the appellants that the proposal was for a three storey building, which might be the conclusion if one took the lower levels of units 4 and 5 which continue towards Goodwin Terrace as parking areas as a storey and then identified two higher storeys in unit 2. Nothing can be gained by describing one of its levels as a mezzanine, given that City Plan, unlike counterparts in some other local government areas, has definitions whose effect is to make this particular “mezzanine” a storey. I think it unrealistic to portray this proposal, large as it is, as containing three storeys. It will not present from any location as having three storeys; at the most, one could identify in unit 2 two storeys above parking. In any event, the appellant’s case conceded that identifying a third storey would mean no more than that the proposal might have to be examined more carefully. City Plan appears to invite three storeys in appropriate circumstances.
[8] It is unnecessary to set out at any length City Plan provisions establishing a strong theme of encouraging more dense residential development in proximity to major centres and public transport of a high standard. A few of the pertinent desired environmental outcomes are:
“3.2 Community life, health and safety 3.2.1 Desired Environmental Outcome
3.2.2 City wide strategies to achieve the DEO
3.2.2.1 Enhance social diversity, choice and accessibility through:
…
3.2.2.4 Protect and enhance the scenic landscape and promote the City’s unique subtropical character through
…
Brisbane is a safe, healthy and vibrant place to live, offering a wide range of local and regional services, facilities and activities and diverse housing, community, cultural and recreational choices
(a) housing diversity and affordability - a wide range of housing types and tenures across the City to meet the affordability, life cycle and lifestyle needs of different households
(b) integration - new development that integrates with existing development
(c) social diversity - development that supports a wide social and cultural mix and Brisbane’s ageing population
(d) accessibility - equitable access to Centres, services, facilities, electronic service information, transport and greenspace
…
(a) scenic landscapes - …
(b) views - …
(c) visual boundaries - …
(d) visual buffering - …
(e) sympathetic development - buildings, structures and landscaping that complement the surrounding character and style in both urban and rural areas
…
3.5 Access and mobility 3.5.1 Desired Environmental Outcome
3.5.2 Citywide strategies to achieve the DEO
3.5.2.1 Integrate the Movement System with the land use pattern to maximise efficient use and enhance accessibility of the Movement System through:
3.5.2.2 Promote a pattern of development that reduces private motor vehicle dependency and increases potential for use of public transport, cycling and walking through:
Brisbane has an efficient transport system that promotes a compact urban structure and less reliance on private motor vehicles, and enables people and goods to move safely, economically, equitably, comfortably and conveniently
(a) housing density - a variety of housing densities that will help reduce urban sprawl
(b) journey to work - closer location of employment and housing to help improve the time and distance of journeys to work and increase use of public transport, cycling and walking as journey to work modes
…
(a) public transport usage - encouraging development in locations that support the accessibility, convenience and efficiency of public transport, including higher density housing and mixed use development in Centres and other locations well served by public transport
(b) transit - transit lanes, bus lanes and busways in strategic locations throughout the City and enhancement of passenger ferries
(c) access to transport modes - development to provide effectively for public transport usage (where appropriate), cycling and walking, incorporate easy and convenient access to these modes and avoid safety hazards”
[9] Chapter 3 of City Plan introduces some more specific DEOs:
“5. Residential Areas
Residential Areas are the main component of Residential Neighbourhoods in the Strategic Plan.
The Plan has 5 different Residential Areas:
· Low Density Residential Area
· Character Residential Area
· Low-medium Density Residential Area
· Medium Density Residential Area
· High Density Residential Area
...
The different Residential Area reflect different living environments
envisaged in different parts of the City. Accordingly the scale and intensity
of built form will vary between Areas and Council will regulate
development through minimum lot sizes for houses, make no provision for
the subdivision of existing or approved buildings involving a house,
minimum site area and intensity for multi-unit and single unit dwellings and
controls on demolition or removal of pre-1946 housing.
An important characteristic of the City’s older suburbs is the traditional
architecture. Demolition Control Precincts are locations in the older suburbs
where pre-1946 housing is still dominant. Specific provisions apply in the
Demolition Control Precincts to preserve and complement much of this
architectural character, by requiring:
· an application for demolition of a building
· compliance with the Residential Design-Character Code for new residential development.
...
5.1 General provisions
5.1.1 Desired Environmental Outcomes
The following DEOs apply to all Residential Areas. Refer also to DEOs for
each specific Area.
1. A range of housing types, sizes, tenures and affordability is provided throughout the City to enable residents to remain in their neighbourhood for their entire life if they wish.
2. Houses are located on new vacant lots that comply with the minimum size requirements provided in the Plan and the subdivision does not occur of existing or approved buildings including houses, so as to maintain the character and amenity of residential neighbourhoods and the expectation of residents.
3. Housing is predominantly low density, with higher densities in or near Multi-purpose Centres and near public transport.
4. ...
5. Dwellings have reasonable access to daylight, sunlight and breezes and have privacy.
...
5.2 Low Density Residential Area
5.2.1 Intent
The predominant form of development is detached houses, 1 or 2 storeys in
height. Other residential development such as aged persons homes will also
be located in the Low Density Residential Areas. Multi-unit dwellings will
only be allowed on sites over 3,000m², at a scale and density commensurate
with the Low Density Residential Area. This will be achieved by strict
adherence to a maximum gross floor area of 30% of the site area.
Minimum lot size in established areas will be 400m², except in the
Demolition Control Precinct where the minimum lot size will be 450m².
No provision is made for the subdivision of existing or approved houses.
...”
[10] Greater density of housing is acceptable in the Character Residential (CR) Area, as indicated in the:
“5.3.1 Intent
The Character Residential Area will primarily accommodate pre-1946 houses. New houses, single unit dwellings or multi-unit dwellings will incorporate the pre-1946 dwelling in the development wherever possible and will reflect pre-1946 architectural themes. Additional development will be at low intensity and at a compatible scale to existing dwellings, at a rate of 1 dwelling per 300m2 of site area and a strict adherence to a maximum gross floor area of 50%. Minimum new lot size will be 400m2 except where associated with a single unit dwelling. No provision is made for the subdivision of existing or approved houses.”
[11] The site is part of the next Area dealt with - and not in Character Residential:
“5.4 Low-medium Density Residential Area
5.4.1Intent
The Low-medium Density Residential Area will contain a mix of houses up to 2 storeys and 2 and 3 storey multi-unit dwellings and single unit dwellings. Land in this Area is located in those parts of the City that are close to public transport networks or centres.
During the life of this plan, a relatively small proportion of land in this area will be redeveloped for multi-unit residential. New development must therefore 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.
Single unit dwellings are intended to encourage appropriate density and provide increased housing choice within neighbourhoods, whilst minimising impacts to residential amenity. Single unit dwellings also encourage the retention of character houses by allowing their retention on a very small freehold lot and their integration in development sites.
Parts of the Low-medium Density Residential Area are included in the Demolition Control Precincts. At these locations pre-1946 ‘timber and tin’ housing will be retained and new development will reflect pre-1946 architectural character. Where feasible, development in Demolition Control Precincts will incorporate pre-1946 dwellings at the front of the new development.
Building envelopes for houses on small lots are defined so that amenity impacts to nearby dwellings and their private open spaces are minimised in terms of maintaining access to sunlight, daylight and privacy. The building envelopes also seek to increase safety from fire hazard, maximise private landscaped space for new houses and avoid overbearing development that would occur if the bulk and setbacks of houses were out of scale or character with houses on adjoining lots.
5.4.2Desired Environmental Outcomes
1.Low-medium density living environments comprise houses, among multi-unit and single unit development at a house-compatible scale, predominantly of no more than 2 storeys. Higher densities and 3 storey buildings occur near Multi-purpose Centres, near public transport and along arterial roads.
2.The Area has a mix of housing types and forms at different levels of affordability with adequate safety, privacy, quiet and comfort. New residential developments are well designed and sensitive to the City’s climate.
3.Natural features such as creeks, gullies, waterways and vegetation are retained where they add to the character and amenity of the Area.
4.In Demolition Control Precincts pre-1946 ‘timber and tin’ buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.”
It will be noted that the statement of maximum GFA is accompanied by the injunction that there be “strict adherence”. The planning expert engaged by the appellants Mr Buckley, set considerable store by this. As against that, the other parties and their experts contend there is a flexibility introduced in the Intent for the Low-Medium Density (LMD) Area by the reference to the alternative case admitting a 60 per cent maximum (in the circumstances indicated as a new maximum also requiring strict adherence) and that strictness was not called for in applying the relevant codes. There is no such alternative in the Low Density Residential or CR Areas, but exceptions are expressly contemplated in respect of lot size. There was disagreement as to the weight that should be accorded to provisions like these in statements of intent for Areas in interpreting the codes which are made applicable to particular development proposals.
[12] In many planning schemes, codes have the express purpose of seeking to achieve the intent for areas, but that is not the situation here. The Residential Design-Character Code (applicable to residential areas in the DCP in assessing material change of use for a house or multi-unit dwelling) has the following purpose (Chapter 5, page 147):
“3. Purpose
The purpose of this Code is to:
·encourage development in Demolition Control Precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing
·In conjunction with the Demolition Code, ensure that precincts of pre-1946 houses are retained and redevelopment in those precincts complements the pre-1946 houses.
4.Assessment guidance – explanation of traditional character
Building form and scale
The predominant traditional building form of pre-1946 housing is a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintain the street appearance of lightweight supports to upper floors and reflect the layout of upper floor verandahs. Roof forms are medium pitched pyramids, hips or gables.
Refer to Figure a.
Street context
Building form can detract from the character of the street if it conflicts with the established patterns of roof shape and pitch, the relationship between floor and ground levels, and the traditional concept of lightweight verandahs attached to a solid core.
Refer to Figure b
The traditional scale of a street was first established by its subdivision pattern of 16, 24 or 32 perch lots, with 10, 15 or 20m frontages respectively. This pattern was reinforced by the traditional building form of a single level house elevated on stumps. This created a reasonably uniform scale, accentuated by consistent stepping of the levels of adjoining buildings in Brisbane’s hilly suburbs, and by uniform spacing between houses in the flatter suburbs.
The sense of scale of a street can be diminished if buildings are introduced that significantly exceed the surrounding building height, present large unarticulated facades to the street, or interrupt the rhythm of stepping roof lines in a sloping street.
Refer to Figure c.
Scale can also be affected by introducing buildings and lots that are significantly smaller than the prevailing building sizes and subdivision pattern.
Two narrow buildings can be combined with a zero lot line to give a single building form under a unified roof in scale with surrounding buildings. The extra width can be used internally or better utilised as outdoor space. Individuality can be provided through detailing and colours.
Refer to Figure d.
Materials and detailing
The character of the older suburbs is influenced by elements such as eaves, sunhoods, verandahs, lattice screens and batten panels that cast shadows and provide three-dimensional effects. Character is also derived from the relatively limited range of materials available at the time of construction. This provided a unifying theme of painted timber walls and corrugated steel roofing.
These lightweight external elements reduce building bulk and form a transition with the external landscape. They make an appropriate response to the local climatic conditions of strong sun and high rainfall.
The traditional character of a street can be diminished by styles that do not incorporate shade-forming elements and that present a flat façade to the street. These styles also have poor environmental qualities.
Refer to Figure e.
Setting
The traditional setting of houses in the older suburbs is a fairly uniform building line, with individual front gardens punctuated by a pedestrian path and single width driveway.
Front fences are usually low and reasonably transparent with timber paling or wire. This facilities a clear view of buildings from the street and assists surveillance of the street from houses and front yards, resulting in streets that feel safe and welcoming.
The setting of new buildings can detract from the character of a street if garages dominate, or if fencing, orientation or setbacks conflict with the established settings.
Refer to Figure f.
Note: a useful guide to renovating and extending character buildings is the Council brochure, ‘Looking After the Queensland House’.
4.2Compliance with the Residential Design-Character Code
Compliance with the Residential Design-Character Code will be achieved in one of two ways:
·Use of traditional materials as detailed in P1, or
·Use of contemporary materials with character elements as detailed in P2 to P7 inclusive.”
[13] Here, the developer seeks to satisfy P2 to P7, rather than P1. They are:
“Performance Criteria Acceptable Solutions 2. Use of contemporary materials with character elements P2 The building height and bulk must complement the predominant scale of pre-1946 houses nearby in the street
Refer to Figure g
For houses (including small lot houses):
A2.1 Where the topography is generally flat, the eaves height is within 20% of adjoining eaves heights
OR
For multi-unit dwellings:
A2.2 Buildings that are taller or wider than the type of building prevalent in the street consist of clearly distinguishable parts similar in scale to existing pre-1946 housing
Refer to Figures g and h
P3 The building setting must complement the traditional setting of pre-1946 houses nearby in the street
Notes: this traditional setting usually involves a single width driveway and a fairly uniform building line
This Performance Criterion does not apply to rear access lots
A3.1 Buildings are set back from any road alignment (excluding eaves, awnings, stairs and garage) within 20% of the average front setback of the nearest pre-1946 buildings fronting the same street
Additional requirements for house/s (including small lot houses)
A3.2 Garages are setback from any road alignment in a position similar to garages located on sites of pre-1946 houses nearby in the street
A3.3 The crossover width is a maximum of 3m
Additional requirements for sites that contain pre-1946 building/s:
A3.4 Pre-1946 building/s are located at the front of the site
A3.5 Building/s built prior to 1900 are reused, refurbished and retained
P4 The building form must complement the traditional elements of pre-1946 houses nearby in the street
Note: this traditional building form usually comprised a solid core with attached or integrated verandahs raised above the ground on timber supports. Enclosed areas under houses generally maintained the street appearance of lightweight supports to upper floors and reflected the layout of upper floor verandahs
A4.1 The building includes a solid core with attached or integrated lightweight verandah or balcony structures
A4.2 Different floor levels are distinguished with the use of entries, windows and balconies
A4.3 Where the building is located at the front of the site, living areas, verandahs and windows are orientated towards the street
Refer to Figure i
Additional requirements for houses (including small lot houses):
A4.4 The ground floor of the building gives the appearance of a lightweight support to the upper floor and reflects the layout of upper floor verandah or balcony structures
P5 Roof form must reflect traditional roofs in that part of the Demolition Control Precinct A5.1 Predominant roof forms will include one or more of a combination of pyramids, hips or gables of a similar pitch and proportions to those of pre-1946 houses nearby in the street
A5.2 The building includes eaves that are of similar proportions to eaves on pre-1946 houses nearby in the street.
A5.3 Roof materials are similar to the roof materials on pre-1946 houses nearby in the street
P6 External elements, materials and detailing must reflect pre-1946 architectural themes, and reduce building bulk and form a transition with the external landscape A6.1 External elements such as lightweight verandahs and stairs, eaves and batten panels are evident to reflect those of pre-1946 houses nearby in the street and are sufficient to cast shadows and provide three-dimensional effects
Refer to Figure j
A6.2 Where masonry is used it is rendered and/or painted and used in conjunction with other more lightweight materials, particularly to define upper and lower levels.
For houses (including small lot houses) these lightweight materials predominate
P7 Front fencing must reflect pre-1946 architectural styles and complement the building design A7 Any front fences are compatible in materials, height and transparency with other fencing on sites of pre-1946 houses nearby in the street
Note: traditional fences are usually low and reasonably transparent with timber paling or wire”
I have not found it necessary to attempt to work out the intricacies of the implications of references in italics to Figures, which illustrate various types of housing.
[14] City Plan says much about “character” in various places. However, I took all parties to accept that it involves the four components identified in the Residential Design-Character Code, namely:
1. building form and scale:
2. street context which has its own “scale (… first established by its sub-division pattern of 16, 24, 32 perch lots, with 10, 15 or 20 metre frontages respectively … single level house(s) elevated on stumps … created reasonably uniform scale … accentuated by uniform spacing. The sense of scale of a street can be diminished if buildings are introduced that significantly exceed … or … are significantly smaller than the prevailing building sizes)”:
3. materials and detailing and:
4. setting.
[15] For present purposes, it may be assumed that the developer has satisfied requirements of the character code, although this is contentious. Value judgments about what is “complementary” can be very difficult. There appears to be compliance with A2.2 and A4.1, A4.2 and A4.3. I do not regard P2 as satisfied, but compliance with A2.2 means that it is taken to be satisfied. There are greater problems for the proposal in the Residential Design-Low Density, Character and Low-Medium Density Code, whose purpose purports to be set out in the following:
“3. Purpose
As the Areas to which this Code applies will contain a mix [of] houses and multi-unit development, the purpose of this Code is to effectively manage impacts of the new development on neighbours while:
·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 housing such as boarding house or aged care accommodation by allowing an increase in gross floor area and a reduction in on-site carparking where the low cost and special needs housing does not compromise local amenity, is secured for at least 10 years and is administered by a housing cooperative, Government or Council agency or charitable organisation
·ensure that multi-unit development does do not impact adversely on landscape or ecological values.”
In my opinion the purpose of the code is to “effectively manage impacts of the new development on neighbours”. One wonders whether “while” should not be read as “by”.
[16] The performance criteria and acceptable solutions come in two parts, the first setting them out separately for different Residential Areas, of which the applicable one (which exhibits a certain similarity to P2, discussed immediately above) is:
“4.3 Multi-unit dwellings in Low-medium Density Residential Areas
Performance Criteria Acceptable Solutions P1 Development size and bulk must be consistent with the low to medium density of the locality A1.1 Gross floor area is no more than:
· 0.5 metres the site area
OR
· 0.6 times the site area 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 or busway station, or
- any part of the site fronts an arterial route, or
- no part of the site is next to a house (where no approval for a multi-unit or single unit dwelling exists)
Refer to Figure n
A1.2 Building height at any point is no more than
· 8.5m above ground level and 2 storeys
OR
· 9.5m above ground level to the underside of eaves and 3 storeys 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 or busway station, or
- fronts an arterial route; or
- containing a building over 8.5m above ground level or over two storeys is more than 10m (where no approval for a multi-unit or single unit dwelling exists)
A1.3 The site area is a minimum of 600m2 and has a minimum frontage of 17m”
[17] The requirements are more onerous in the lower density residential areas, consistently with the relevant Intents. The proposal has GFA of about 0.54 or a little more times the site area. Thus it fails to meet the first dot point of A1.1. It fails to meet the second, notwithstanding that Goodwin Terrace has a sufficiently wide reserve, because none of the additional requirements introduced by dashes is satisfied (one would be enough). Beaudesert Road is an arterial road, but, of course, the site does not front it.
[18] Although certain drawings in evidence are capable of being construed to show some minimal exceedance of the 8.5 m height limit, for purposes of A1.2 it is accepted that this aspect can be controlled by a development condition.
[19] As to A1.3, the site is large enough in area, but its frontage is inadequate by almost 2m. What a developer must do is satisfy the performance criterion. If it meets the acceptable solutions, it is deemed to do so, regardless of whether one would have said otherwise that the criterion was satisfied. On the other hand, even where acceptable solutions are not achieved, the judgment may be made that the related performance criterion is. Examples are Tod v Brisbane City Council [2004] QPELR 170; [2003] QPEC 65 and Nash v Brisbane City Council [2010] QPELR 313 where frontages fell short of acceptable solutions. Nash had the special feature of access to the proposed new dwelling(s) in the backyard of a pre-1946 house being obtained from a street “stub” as the rear - but in those proposals, the existing traditional house enriching the streetscape was already there, so that the proposals neither were affected by nor affected the “frontage”. It was correctly pointed out that, here, if the site were different, and had a 17 m frontage, a wider building may have been proposed, so that there would have been no increase in side setbacks or some other outcome resulting in a more open amenity.
[20] It is not particularly useful to go further investigating possible conflict, but to get a clearer idea of the dimensions of the conflict there might be noted that the Code also contains:
“5 Part B – General Performance Criteria and Acceptable Solutions for multi-unit dwellings
Performance Criteria Acceptable Solutions Building design and setting P1 The appearance of building bulk must be reduced by design elements A1.1 The building bulk is reduced by a combination of:
· verandahs
· recesses
· variation in materials, colours, and/or textures including between levels
· variation in building forms
Refer to Figure d
A1.2 Roofs include pitches, gables or skillions
A1.3 Services structures and mechanical plant are screened or designed as part of the building.
P2 The development must be orientated to the street and facilitate casual surveillance of the street
Note: north or north-east facing windows, balconies or decks may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code where this will significantly improve passive solar design
A2 Building has large windows or balconies facing the street
Refer to Figure d
P3 Screening and partial enclosure of balconies is limited to provide privacy for neighbours and comfort for residents without resulting in unattractive buildings or an appearance of excessive bulk or restricting opportunities for passive surveillance of the street A3.1 Screening of balconies is limited to the side and rear boundaries and the sides of balconies between those units where needed to prevent noise and overlooking of other units or dwellings and recreation areas
A3.2 Street frontages of balconies are not screened or enclosed by shutters, glazing, louvers, or similar permanent structures
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
P5 Landscaping must be consistent with the established landscape character of the area and accommodate the retention of existing vegetation, including street trees
A5 Established trees are retained where removal isnot required to site new buildings P6 The development must include landscaping that contributes to a pleasant and safe environment and integrates well with the neighbourhood A6.1 Landscape design allows the overlooking of the street and pedestrian entry areas
A6.2 Landscape design emphasises a clear pedestrian entry point
Performance Criteria Acceptable Solutions Privacy and access to sunlight P12 Habitable spaces must not directly overlook dwellings on adjacent land
Note: north or north-east facing windows, balconies or decks may be permitted to provide lesser levels of privacy than would otherwise be allowed by this Code where this will significantly improve passive solar design
A12 Where habitable room windows look directly at habitable room windows in an adjacent dwelling within 2m at ground floor level of 9m at levels above ground floor, privacy is protected by:
· sill heights a minimum 1.5m above floor level
OR
· fixed opaque glazing in any part of the window below 1.5m above floor level
OR
· fixed external screens
OR
· fencing to a minimum 1.5m above ground floor level (only applies to overlooking from windows at ground floor level)
OR
· achieving the privacy solution shown in Figure e
OR
· where screening of decks is required, it is solid translucent screens, perforated panels, or trellises that are permanent and durable and have a maximum of 25% openings
Refer to Figures e, f, g and h
P13 Development must not significantly reduce daylight to open space and habitable rooms in adjacent development
Boundary walls must be limited in dimensions and openings, to minimise the impact on neighbours.
A13.1 The side boundary setback, excerpt for a wall built to the boundary, is a minimum of:
· 1.5m for a wall up to 4.5m high
· 2m for a wall up to 7.5m high
· 2m plus 0.5m for every 3m (or part of 3m) over 7.5m height for a wall over 7.5m high
· Less than 1.5m where the wall is no more than 3.5m high and no more than 15m long
A13.2 A wall built to a side boundary has:
· a maximum height of 3m, unless it abuts a higher existing or simultaneously constructed wall
· a maximum length of 15m where it does not abut an existing boundary wall
Note: where a wall built to the boundary has a height less than 2m measured on the adjacent property, it can extend the full length of the boundary, less any front or rear boundary setback
A13.3 Minimum rear boundary setback is 6m
Note: minimum setbacks do not apply to eaves and sun shading devices”
Generally, the proposal fares well in relation to these performance criteria. The designer deserves a good deal of credit for the response to the site in its context. Some changes have been made to the proposal to improve it. I do not accept the criticism that because only Unit 1 at the front and the Unit 2 balcony behind address Goodwin Terrace that P2 is not satisfied. There is room for argument about P12 and P13. Mr Batty, for the appellants, expressed consternation when Mr Ovenden revealed that he had been sent shadow diagrams, which he produced to the court. They had never been disclosed. I was unimpressed by the purported justification that shadowing was not an issue: it seems to me that it was an issue by reference to paragraph 5(f) of the notice of appeal which asserts there is no evidence that the development will not significantly reduce daylight to open space and habitable rooms in adjacent development. There was inconclusive discussion about the implications of quoted references to either “daylight” or “sunlight” in City Plan (sometimes they appear side by side); shadowing is mentioned much less frequently. It remains the case that there was no evidence about these matters. Although admitted into evidence against objection, the shadow diagrams were not explained or vouched for by any witness. It is impossible to regard them as showing anything except that they were brought into existence (and obviously ought have been disclosed). I do not think it necessary to decide whether a Jones v Dunkel inference can be drawn against the co-respondent in this respect, as argued by Mr Batty, in the way that happened in Caloundra City Council v Taper Pty Ltd [2003] QLEPR 558 at [65]. P13 has not been shown by the co-respondent to be satisfied - as to which it bears the onus.
[21] Aerial photographs were used to make the point that so far as roof forms are concerned, there are other allotments in Koala Road and Goodwin Terrace which exhibit almost as great a spread as the proposal’s. These include the site’s neighbours, the eastern one in particular. In no case is there anymore than a single detached dwelling, the other roof forms being attributable to garages, sheds and the like and perhaps (in the neighbour’s case) shelter for pets, or the like. Such structures would be the equivalent of a single storey at the most. The bulk of the agglomerations in my opinion bears no comparison to the proposal which throughout is two storeys, and close to the maximum permissible 8.5 m (not reflected anywhere else in the “locality”), that height extending for the most part to the minimal side boundary setbacks. There are qualifications that ought to be made to this generalisation, for the gabled roof over unit 1 and the wider setback on the western side, which is necessary to permit vehicles to access the parking places under units 2 and 3.
[22] Much was made of the bulk of the house approved for the site in 2008, against which the neighbours could not be heard to complain. Overlay exercises were carried out by Mr Buckley, and tested by Mr Ovenden, who revealed a couple of errors (omitting a garage attached to the house, built to the boundary and in the elevation allocating an incorrect front setback). Nonetheless, Mr Buckley’s point is well made. The proposal is far bulkier and more dominating. It was pointed out that an even larger house (indeed one up to 600 m2 GFA) would satisfy relevant standards for setbacks, height and GFA. Multi-unit dwellings in the Area are regulated differently from houses; this one does not comply with the standards, at least insofar as those are indicated by acceptable solutions.
[23] The proposal does not meet the minimum rear boundary setback of 6 m set in A13.3. Part of the “rear” wall on the north is built out to the edge of the eave, creating an intrusion of about half a metre into the setback. The implications of that for the neighbours at the rear (who were submitters and are appellants) cannot be said to be great. Nevertheless, the co-respondents are put in the position of not being able to contend that P13 is deemed satisfied. Setting aside “deeming” possibilities, the co-respondent, which bears the onus, has not persuaded me that P13 is satisfied.
[24] I find it concerning that the accredited consultants who examined the proposal and evaluated the submissions (“57 lawful submissions and 7 unlawful submissions”) under the Council’s fast-track “Risksmart” process in their report of 24 January 2012 (fourth page) write:
| “ISSUE | SUBMISSION | COMMENTS | REACTION |
| DENSITY | |||
| GFA>50% | 7, 8, 11, 19, 20 26, 30, 34, 35 36, 37, 38, 40, 41, 48, 53, 54, 56 | The submission(s) object that the GFA of the proposal exceeds 50%. P1: Development size and bulk must be consistent with the low to medium density of the locality. The proposal is consistent with the scale of development in the locality because it complies with the height requirements, and the setback requirements of the code. Thus it can have no overbearing impact as the wall heights and setbacks are complying. The proposal is also considered to be of the same scale and size as a large single residence when viewed from the street. There is an existing large house approved for the site (ref: A002109637) which has front façade dimensions similar to the proposal” | We see no point in forcing any change as it will not result in a reduction in building size and bulk. |
I do not understand how it could be contended that the setback requirements of the code which relevantly appear in A13.3 are complied with. It is true that on the twelfth sheet under “rear setback” it is said that the rear boundary setback “complies with the performance criterion” there being acknowledged a “minor rear boundary setback encroachment created by the bathrooms and cupboards on the upper level of units 4 and 5” and that on the tenth sheet, apropos complaints of “loss of light” there is noted “compliance of the proposal with height and side setbacks”.
[25] Notwithstanding that appeals like the present are a hearing anew, so that the court must determine the merits of the development application for itself, whatever the Council made of them, the view of the Council, as planning authority, demands some respect. The extent to which that remains so where Risksmart is used may be different. The consultants mentioned were one and the same as those who submitted the impact assessable development application seeking Council’s approval on 16 November 2011. Their report of 24 January 2012 even contains a full conditions package to accompany the recommended approval. It appears that the Council nominated a team of three to examine matters on its behalf. It is unknown to what extent the team were sceptical and/or vigilant. The final conditions package was different, although clearly modelled on the one proffered. Some of the changes reveal attention to minute detail, such as an attempt to correct the grammar in the guideline in condition 4. One must ask about the wisdom of outsourcing part of the assessment exercise in what seems to me a fairly sensitive context of a proposal for, effectively, the first multi-unit dwelling in what amounts to an intact pocket of pre-1946 detached dwellings which attracted numerous submissions and did not comply with acceptable solutions for applicable performance criteria.[2]
[2]Use of Risksmart albeit not in respect of the development being considered by the court, attracted criticism (for leading to an inappropriate approval) in Newman & Ors v Brisbane City Council [2011] QPELR 786; [2011] QPEC 087; see [86].
[26] Considering the “neighbourliness” of the proposal, which may have relevance under either of the codes considered, from among those supportive of the proposal came acknowledgement of confirmation of the favourable view taken being derived from “architectural perspectives” included in Appendix B to the joint experts’ report, Exhibit 3. These purport to show the proposal in context alongside its eastern and western neighbours. No witness was presented to explain the process by which they were created or to vouch for their reliability. Mr Batty was able to demonstrate by use of photographs that the “perspectives” do not accurately present the situation. In particular, they misrepresent the western neighbour, effectively presenting it as much more bulky than it is. I accept Mr Trotter’s point that photographic tricks or quirks (deliberate or inadvertent) may give a misleading impression. Mr Batty’s exercise, however, effectively demolished the “perspectives”. They are somewhat coy in depicting the proposal by eschewing anything like a full view of the sides, to give an appreciation of the length of it, whereas the adjacent side view of Mr Williams’ house (the western one) shows the entire side, including a two-storey flat roofed extension at the back and vacant space beyond. The architect, Mr McDonald I understood to suggest that it was the street facing façade of a building that overwhelmingly determined its contribution to streetscape and the way in which observers would appreciate it. I do not think that is entirely right. Compare Barnes v Southern Downs Regional Council (No. 2) [2012] QPELR 96; [2011] QPEC 119. The architectural perspectives presumably all pre-suppose a particular vantage point from which things are seen, which may well have been one flattering to the proposal to the extent of being misleading. Mr Job is correct in his “Reply” submissions of 7 December 2012 to cavil at suggestions in the appellants’ case that in an appeal such as the present high quality photo-montages depicting a proposed development accurately in its surroundings or evidence of a visual amenity expert are, in effect, mandatory. The costs implications of that for litigants might be considerable.
[27] Mr Job and Mr Trotter and the experts engaged by their clients have failed to persuade me in terms of P1 that the proposal’s size and bulk are “consistent with the low to medium density of the locality”. There were different views as to what constituted the locality, ranging from that part of the DCP area in Goodwin Terrace north of Pampas Street to Moorooka generally. It is intriguing that P1 uses the expression “low to medium density” whereas, apparently everywhere else, the expression is “Low-medium Density”. The reference in P1 might be to the actual density of the locality (which may be thought most likely), or to the intended density, or to a combination of the two. It does not really matter which is correct. There is only one multiple unit dwelling in the whole swathe of DCP containing the site, just about as remote from it as it could be. The site is also the only vacant parcel. Mr Batty got Mr McDonald to complete Exhibit 26, allocating the 22 houses in Goodwin Terrace west of Pampas Street to the categories Pre 1946 Character House, Post 1946 Sympathetic Character House and Non Character House. It may have been unreasonable to expect Mr McDonald to do this on the basis of photographs, but his allocating 17 to the first column gives a pretty good indication of the street character which, if City Plan has its way, is likely to endure.
[28] I agree with Mr Buckley that the proposal is simply too big, trying to “shoehorn” too much onto this Low-Medium Residential Density site in a way that is inevitably out of scale with surrounding development that is likely to remain in place in the long term.
[29] I find there is conflict with the planning scheme, and generally as identified by Mr Buckley, although I do not find the assistance he has found in the Moorooka Local Plan. It is enough to identify the conflict with P1 in the Residential Design-Low Density, character and Low-Medium Density Code.
[30] The issue the court next must consider is whether grounds exist sufficient to outweigh the conflict and justify approval of the proposal for purposes of s 326 of the Sustainable Planning Act 2009. The proposal has much to commend it. It is consistent with broad “themes” in City Plan in higher order provisions. As Mr Adamson, the planner engaged by the Council summarises, the proposal would provide alternative housing choices well located near convenience shopping, public transport and recreational open space. The Moorvale MP3 Centre has much more than convenience shopping to offer. There are medical and dental services, parliamentarians’ offices, restaurants, and the like. Generally, infill developments like this which introduce denser residential use are to be welcomed in appropriate locations (such as this) in south east Queensland. A balancing exercise is involved. The co-respondent, which bears the onus in this regard, even with the enthusiastic support of the respondent Council, has failed to satisfy me that the balance falls in favour of the proposal. It is an unsatisfactory outcome in some ways but the co-respondent no doubt appreciated the risk it was taking in exceeding acceptable solutions in a number of respects, all of which, bar street frontage (which on its own might have been overcome) were avoidable. Mr Adamson and Mr Overden (called by the co-respondents) agreed there were other themes in City Plan requiring new development to be sympathetic to its area and limit impacts on neighbours. See Mr Batty’s written Reply submissions.
[31] Unsurprisingly perhaps, the parties and their witnesses urged rather different approaches to how City Plan should be “read as a whole”, as all accepted was needful. Mr Buckley was on his own in wanting to take Code references in acceptable solutions (4.3 A1.1 and A1.2) to a condition of increased GFA as a percentage of site area - or of permissible height increasing by a metre to 9.5 metres - that a site be within 200 metres radius of a “busway station” to incorporate the scheme definition of busway, which is not satisfied here, however excellent the bus service along Beaudesert Road may be. (There is no evidence of the frequency of services.) His colleagues, on the basis of reference to more general provisions in City Plan encouraging greater densities on sites closer to quality public transport, either rail or bus, assert that use of the term “busway” should not be taken too seriously – indeed, that the mere inclusion of the site in the Low-Medium Density residential area bespeaks an acknowledgement that there is sufficiently “close proximity” to public transport. The particular performance criterion is about building size and bulk (being consistent with the low to medium density of the locality).
[32] Just as reference to a more general provision of City Plan served to explain detailed ones in acceptable solutions, it was contended by Mr Buckley in particular that they could be consulted to get a better idea of what the general provisions were driving at in requiring the new development to be complementary, or sympathetic to or consistent with what is existing or desired in Area or precinct. Judge Wall said in Jensen Bowers Group Consultants Pty Ltd v Gold Coast City Council [2011] QPEC 049 at [25]:
“It does not follow that merely because a particular proposal appears to be inconsistent with suggested acceptable solutions to particular performance criteria it must be rejected. It may though indicate the extent to which the proposal may be incompatible with the desired intent and purpose of the code and relevant development requirements.”
[33]
I agree with that sentiment. I do not regard it as inconsistent with Judge Rackemann’s approach (referring to the Gold Coast Planning Scheme) in SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 074; [2007] QPELR 24 at [46 – 48]:
“[46] The codes in the 2003 Planning Scheme follow a familiar “performance based” structure, similar to codes in other IPA planning schemes. The codes commence with a statement of purpose. The codes also identify the development to which each applies and then contain “development requirements,” which are set out in a table of Performance Criteria and Acceptable Solutions. The planning scheme provides that:
‘Development proposals must comply with the performance criteria to meet the objectives of the planning scheme and ensure that the DEOs are not compromised.
...
It is desirable that code assessable development comply with the acceptable solutions to ensure that each performance criterion is met. However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criteria, to Council’s satisfaction. Where no acceptable solution is provided for a performance criterion in the code, the development must provide its own solution to meet that particular performance criterion.’
[47] Statements to similar effect can also be found in other IPA planning schemes which adopt performance based codes. The performance criteria are generally outcome focussed, while the acceptable solutions indicate a “desirable” way to “ensure” compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.
[48] It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a “relaxation” or a “dispensation”. It is another way of achieving compliance with the relevant performance criterion.”
[34] Again I find myself in agreement with my colleague. The crux is whether performance criteria are satisfied. If they are not, there is conflict with the planning scheme and the issue becomes whether there are sufficient grounds within s 326 of the Sustainable Planning Act 2009 to justify a decision to approve the proposal.
[35] My impression was that those supporting the proposal wished to sit on both sides of the fence, so to speak, and rely on satisfied acceptable solutions to deem the related performance criterion satisfied to that extent, whether or not it truly was satisfied; the next step was to overcome other acceptable solutions not being satisfied by contending that the performance criterion was satisfied. I doubt that this approach is sound. Either acceptable solutions are met in full (taking the benefit of alternatives that may be available) OR the performance criterion must be shown to be fulfilled. I do not accept that the deemed satisfaction of P2 in the Residential Design-Character Code gives the co-respondent any help in showing that P1 in the Residential Design-Low Density, and Low-Medium Density Code is satisfied, however similar their terms or intent may be.
Sufficient grounds?
[36] The Council’s submission was that there was no conflict with City Plan, if there was it was “textual only and of no consequence”. Sufficient grounds were alleged to exist for that conflict not standing in the way of approval in “the architectural merits of this proposal and the important areas of consistency with other parts of the scheme”. The co-respondent’s submissions were similar, relying on the site’s proximity to Beaudesert Road which is an arterial route, “easy access” to public transport, proximity to Moorvale Shopping Centre and to existing recreational parkland. It is true that planning objectives of City Plan and its DEOs would be promoted by the proposal: housing choice and diversity, reducing urban sprawl, encouraging use of public transport and land use integration in this specific location. The proposal is in a category of “generally appropriate” development.
[37] I accept that the “grounds” put up have validity. The question is whether they outweigh the conflict. A finding of conflict might have been avoidable, had the only conflict been related to the dimensions of the site, frontage in particular, about which the developer could do nothing.
[38] There was no need for the “strict” gross floor area limit stated in terms of percentage of site area involved to be exceeded, or to build within the standard rear setback, the former aspect being the more serious in my view, notwithstanding what a “complying house” might achieve. I acknowledge that nothing in the acceptable solutions requires a finding of conflict with P1 but the co-respondent’s impressive, clever design throws up a challenge by combining these two indications that the proposal might be too bulky with the further indication that the frontage may be too short. Whether one bears those indications in mind or forgets about them and considers P1 in isolation, it is not complied with. The co-respondent has failed to prove that it is, that being the critical point. There is conflict with the City Plan. It seems to me that the purpose of the Code as identified above, which I think is directed to ensuring that new development represents a sympathetic neighbour to what is there, makes a finding of conflict inescapable. It is unnecessary to consider further the other City Plan provisions which Mr Batty contends are not shown to be complied with.
[39] So far as grounds for over-riding that conflict are concerned, the proposal stands in a worse position, as effectively the first multi-unit dwelling in relevant part of the Development Control Precinct. It would stand out in a challenging way not only in that regard, but as in a class of its own in bulk and scale.
[40] The matter bears some similarity to Gorman v Brisbane City Council [2004] QPELR 29 in which there were concerns regarding acceptable solutions (not quantified in the reasons) as to street frontage and front and rear setbacks. Submitters contended the proposal, for four units, was overdevelopment. The appeal failed. The site was not in a Demolition Control Precinct. At [11] Judge Quirk said:
“Whether the proposals constitutes ‘multi-unit development and a house-compatible scale’ is a matter of judgment. ... two experienced planners were of the view that it was and I accept their assessments. As was pointed out in evidence, compatibility is not equivalent to replication and although the area’s character is presently dominated by Low Density Residential development, that is clearly not a position that a City Plan intends to maintain.”
[41] Here, the corresponding expert evidence that I have found more compelling was that adduced by the appellants.
[42] The appeal should be allowed and the development application refused.
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