Tod v Brisbane City Council

[2003] QPEC 55

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Tod v Brisbane City Council [2003] QPEC 055
PARTIES:	LINDA SUZANNE TOD Appellant v BRISBANE CITY COUNCIL Respondent And KEN DREW TOWN PLANNING Co-Respondent
FILE NO/S:	BD 525 of 2003
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	18 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	12, 14, 15, 19 August 2003
JUDGE:	Robin QC DCJ
ORDER:	Appeal dismissed, conditions varied
CATCHWORDS:	Appeal by adverse submitter against Council approval of multi-unit dwellings (2 “townhouses”) behind pre-1946 cottage on Low-Medium Density Residential site covered by South Brisbane Local Plan – whether proposal complied with Performance Criteria but not with all Acceptable Solutions – alternative means of compliance open – deficiency in frontage overcome by  design of proposal – alleged impossibility of development’s complying with both  noise attenuation requirement of acoustic screen and need to keep overland flow path clear for 1 in 50 years runoff – parking and traffic issues – Integrated Planning Act 1997 s.3.5.13, s.3.5.14.
COUNSEL:	Appellant Ms Tod in person B Job for respondent T Trotter for co-respondent
SOLICITORS:	Appellant self-represented A R Chadwick, Brisbane City Legal Practice for respondent Connor, O’Meara for co-respondent

1. Ms. Tod has ably conducted her own “adverse submitter” appeal against the Brisbane City Council’s approval for a Material Change of Use – Development Permit in respect of land at 11 Brook Street, South Brisbane described as Lot 56 on RP 11691, Parish of South Brisbane, communicated by a Decision Notice under s 3.5.15 of the Integrated Planning Act 1997 (“IPA”) of 19 December 2002. The appellant has owned No 15 Brook Street, which is the site’s immediate eastern neighbour, since 1992, and resides there.

1. The development application of 3 May 2002 proposed the construction of a “multi unit dwelling” consisting of two attached upstairs-downstairs townhouse-style units, each of four bedrooms in the back yard, behind the existing, substantially renovated, four bedroom “workers cottage” constructed close to the front boundary, even closer to the western boundary.

1. Under the Brisbane City Plan 2000, there is a Strategic Plan addressing a time horizon extending to 2011 which “sets out the broad policy of the City Plan.”  It is divided into the “Vision”, identified “Desired Environmental Outcomes” which, again, “set broad policy at a Citywide Level” and “Elements of the City.”  The site and its neighbours, unsurprisingly, come within the Residential Neighbourhoods Element and within the third of the “components” of it, which are:

·Low Density Residential Area

·Character Residential Area

·Low-Medium Density Residential Area

·Medium Density Residential Area

·High Density Residential Area

·Emerging Community Area

·Community Use Area

1. In respect of residential neighbourhoods Ch 2 in 4.2.1 proclaims that:

“In this context of rapid growth and changing lifestyles, the challenge for the City is to ensure an efficient supply of residential land and housing.”

1. The response which follows contains its own “components”, of which parts of the first four might be noted:

“4.2.2.1 Meeting realistic expectations of future amenity

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

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

·allow development that complies with the Plan, irrespective of view impacts unless the views are protected in a Local Plan

·mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy

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

·avoid through traffic in residential locations

·ensure residential neighbourhoods are adequately buffered to mitigate impacts of industrial and other non-residential uses

These community expectations also need to be balanced with expectations of housing choice to meet resident needs during all stages of their life and to meet different lifestyle choices.  These choices are discussed below in 4.2.2.2.

4.2.2.2   Housing choice and affordability

The City’s residential neighbourhoods are to provide sufficient housing choice to enable residents to remain in their neighbourhood through all the stages of their life if they wish.  Housing choice requires a variety of housing types and tenures to be available across the City and to enable access to housing for a wide range of income levels.

4.2.2.3     Higher density housing near public transport

Higher density housing in residential neighbourhoods is to be in locations that can be efficiently served by high quality public transport or that are close to the City Centre.  Higher density housing is encouraged in and around centres and institutions with large numbers of clients, employees or students and services and facilities.  This forms part of a proactive approach to planning for mixed use, higher intensity nodes well integrated with the Movement System, particularly pedestrian, bike and public transport networks.

4.2.2.4     Maintaining character

Each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the City, topography, vegetation, social composition, history and proximity to a local centre.  Development should respect and be compatible with the local character.

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

Provisions apply where pre-1946 buildings will be retained or new dwellings reflect pre-1946 architectural themes.

Demolition Control Precincts are those locations in older suburbs that contain pre-1946 housing with distinctive ‘timber and tin’ architecture.  The precincts contain minimum groups of three houses, and at least two thirds of the precinct contains pre-1946 houses.
Demolition Control Precincts also contain non-residential buildings or structures, which contribute to the character of the area and have a connection with the local community.  These include a variety of building types such as shops, halls, churches, hotels, schools, post offices, banks, police stations, fire stations and hospitals.  These buildings exhibit some, but not all of the following characteristics:

·they demonstrate a community focus

·they contribute to the character of the area where they provide or have provided a variety of services to the community

·they are generally larger in scale than a residential building

·they are generally prominently located and often have landmark qualities

·they are indicative of the aesthetic styles and construction techniques of their construction date

·they assist in providing an understanding of the development of the area.

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

In newly developing suburbs, development is to support the emergence of an identifiable local character, considering aspects such as housing, vegetation, streetscapes, architectural styles, community facilities, open space, places to meet and socialise, bikeways, pedestrian facilities and local features.”

Inevitably, balancing exercises will have to be undertaken in the working out of “components” so expressed.  The site is within a Demolition Control Precinct centred on the area bounded by Gladstone Road, Vulture Street, Stephens Road and Prospect Terrace.

1. One then reaches Ch 3 which “identifies general assessment processes that will affect the regulation of development”.  At p 8, Ch 3 explains the role of Local Plans:

“Chapter 4       Local Plans

The Local Plans do not replace the Area allocations described in Chapter 3, but put forward more locally focused desired land use and built form outcomes for the Local Plan areas.  Local Plans override any parts of the Plan with which they may conflict.

Local Plans may provide additional measures for particular parts of the City where detailed local planning has been undertaken.

A Local Plan may change the level of assessment identified in the level of assessment tables in this chapter.

For the following Local Plans the level of assessment is determined from tables in the Local Plans and not from this chapter:

-City Centre

-Fortitude Valley

-Milton

-New Farm and Teneriffe Hill

-Newstead and Teneriffe Waterfront

-Petrie Terrace and Spring Hill

-South Brisbane.”

1. The South Brisbane Local Plan is presently relevant.  Chapter 3 goes on to identify a couple of dozen further Local Plans subject to their own considerations and continues:

“Some Local Plans contain Codes.  These Codes provide additional and/or alternative Performance Criteria and Acceptable Solutions to the Codes in Chapter 5 and takes precedence over the Codes in Chapter 5.

Chapter 5        Codes and Related Provisions

Codes are listed alphabetically in Chapter 5.  The Codes are the baseline regulations against which proposals are assessed.

All detailed development requirements are expressed in this consistent ‘Code’ format, regardless of whether the proposal is self, code or impact assessable.

They contain Performance Criteria and Acceptable Solutions.  In some cases, usually where no quantifiable Acceptable Solution can be provided, Codes outline the nature of the investigations or process necessary to determine whether Performance Criteria are met …

“For code assessment the Code is the Purpose, Performance Criteria and Acceptable Solutions.  The Acceptable Solutions represent the preferred way of complying with the Performance Criteria.  There may be other ways to comply that meet the Code’s Purpose.  It is up to the applicant to demonstrate how alternative solutions achieve this.  A proposal that fails to comply (except in insignificant details) and cannot be conditioned to mitigate impacts will be refused.

The ‘primary’ Code applying to the development is indicated in the level of assessment tables.  That ‘primary’ Code may refer to other ‘secondary’ Codes and provisions that are to be interpreted as part of the ‘primary’ Code.

These Codes will also be considered for impact assessment where relevant.”

1. 5.1.1 (Ch 3 p 27) lists Desired Environmental Outcomes which apply to all Residential Areas, closely reflecting 4.2.2.1, set out in [5]. It commences:

“The following DEOs apply to all Residential Areas.  Refer also to DEO’s 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.  Housing is predominantly low density, with higher densities in or near Multi-purpose Centres and near public transport.

3.  Neighbourhoods have a sense of place based on their location, residential nature, heritage, topography, natural environment, built form and proximity to a local Centre.

4.  Dwellings have reasonable access to daylight, sunlight and breezes and have privacy. …”

and is followed by:

“5.2      Low Density Residential Area

5.2.1     Intent

The predominant form of development is detached houses, one or two 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.”

(The above provision is set out for purposes of comparison, keeping in

mind that the site is Low-Medium Density)

1. 5.2.3 confirms that it is the South Brisbane Local Plan which determines the level of assessment. There follows a list of Applicable Codes for various matters or activities, grouped in accordance with whether they call for Self Assessment, Code Assessment, or Impact Assessment.  A pertinent example from the last category is:

“Impact Assessment  Relevant Codes or Policies

Generally appropriate

4.  Multi-unit Dwelling

·   in the Low Density Residential Area - where complying with the Residential Design - Low Density, Character and Low-medium Density Code and on a site over 3,000m²

·   in the Character Residential Area - where complying with the Residential Design - Low Density, Character and Low-medium Density Code and any pre-1946 buildings are retained

·   in the Low-medium Density Residential Area - where complying with the Residential Design - Low Density, Character and Low-medium Density Code.”

Residential Design - Low Density, Character and Low-medium Density Code, and where located in the Demolition Control Precinct:

Residential Design - Character Code.

1. This indicates what the level of assessment would be subject to the effect of provisions of the South Brisbane Local Plan.  One page later one finds the relevant Intent and DEOs:

“5.4      Low-medium Density Residential Area

5.4.1     Intent

The Low-medium Density Residential Area will contain a mix of houses up to 2 storeys and two and three storey multi-united 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.

Parts of the Low-medium Density Residential Area are included in the Demolition Control Precincts.  At these locations pre-1946 architectural character.  Where feasible, development in Demolition Control Precincts will incorporate pre-1946 dwellings at the front of the new development.

5.4.2     Desired Environmental Outcomes

1.   Low-medium density living environments comprise houses, among multi-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 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.”

1. Conformably with the last sentence of 5.4.1, the pre-1946 house is to be retained, indeed, “restored” to reflect housing styles of that era better than it does now; the 50 per cent GFA limit is met,  even taking into account the garages, the 60 per cent limit would be.

1. One then turns to the pertinent parts of the South Brisbane Local Plan in Ch 4, commencing at p 211.  The site is not included in any of the 13 named Precincts, but is dealt with subsequently as one of the residential precincts, which are appropriately mapped.  For purposes of comparison, it is instructive to note 3.14, as well as 3.15, the applicable precinct:

“3.14     Low Rise Residential Precinct

This precinct is of historical significance as the majority of the housing stock is relatively unaltered from its construction in the 1870s to 1900.

It is intended that this precinct be retained as a low density, single dwelling residential area with small allotment sizes and minimal encroachment by larger or higher density residential development.

The existing form, scale of buildings and architectural treatments of buildings should be preserved so that the precinct remains as an example of a ‘turn of the century’ residential area.  New proposals should be of a scale and character complementary to existing buildings and the existing subdivision pattern.  Preferred designs restore missing elements in the street
…

3.15      Low-medium Rise Residential Precinct

This precinct is intended to remain as a closely settled 2 to 4 storey residential area providing a range of accommodation types.

Proposals for 3 storey buildings should take into account:

·whether the site is close to major roads, shopping areas or parks

·the land use, scale and character of adjoining development

·   topography, and whether other sites will lose views or be overshadowed

…”

1. (The site is close to a number of schools, the South Brisbane Institute of TAFE and within easy walking distance of the Queensland University of Technology via the new pedestrian bridge crossing the Brisbane river.  The proposal (two storeys only) appears to conform with the first four “dot points” in 4.2.2.1 (see [5]) particularly in light of some recent revisions by the architect of the external finishes of the two townhouses proposed.)

1. A general table of Applicable/Relevant Codes follows 4.1; C – Where located in Character Residential Area or Low-Medium Density Residential Area deals with Multi-Unit Dwellings under Code Assessment rather than under Impact Assessment in the following way:

“Code Assessment  Applicable Codes

5.      “Multi-unit Dwelling where:

·     In the Character Residential area

·     Complying with the Residential Design-Low Density, Character, and Low-medium Density Code and any pre-1946 buildings on site are retained

·     In the Low-medium Density Residential Area and where complying with the Residential Design-Low Density, Character, and Low-medium Density Code

For all development:

South Brisbane Local Plan Code
AND
Residential Design – Low Density, Character and Low-medium Density Code, and Residential Design-Character Code.”

1. The way in which the foregoing is expressed is a reason for the ability of Mr Trotter, appearing for the co-respondent developer, to describe his client as having “a respectable argument” that the proposal was “Code Assessable”, rather than “Impact Assessable”. The conditions for it to be the former, indicated alongside the “dot points”, allow room for argument. The Council insisted on impact assessment. The application proceeded in that way, so that Ms Tod and other neighbours were entitled to make submissions, and to appeal to the Court. Sections 3.5.4 and 3.5.5 of the IPA, of course, create different regimes, although the assessment manager’s duties under s 3.5.13 (Code Assessment) and 3.5.14 (Impact Assessment) may, on analysis, not be markedly different (the former requiring compliance with codes whereas the latter requires “sufficient planning grounds” to excuse “conflict with the Planning Scheme”).

1. The next point of reference must be the Applicable Codes listed, which are found in Ch 5.  The Character Code commences at p 147.  It states in para 2:

“When this Code is listed in a level of assessment table in Chapter 3 or a Local Plan in Chapter 4 as an Applicable Code for code assessment:

·   the Code is to be read as being the Purpose, Performance Criteria and Acceptable Solutions

·   a Local Plan may include a Code that may vary or include additional Purposes, Performance Criteria or Acceptable Solutions.”

4.2 is:

“Compliance with the Residential Design – Character Code will be achieved in one of three ways:

·   retaining a pre-1946 building at the front of the site.  Any other building at the road frontage will be subject to Parts 2. or 3. in Section 5 below

·   use of traditional materials

·   use of contemporary materials, such as masonry and tile, where a range of character elements are incorporated.”

There is no longer (if there ever was) any issue for the Court in relation to this Code.

1. Next for consideration is the Residential Design - Low Density, Character and Low-Medium Density Code (p 165) whose purpose is identified (in part) as follows:

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

·   ensuring hew 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.”

1. The accompanying tables include the following:

“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 times 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  station, or fronts an arterial route; or is not next to a house

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        station, or

-     fronts an arterial route, or

-     containing a building over 8.5m above ground level or over two storeys is more than 10m from any lot containing a house (where no approval for multi-unit dwelling exists)

A1.3     The site area is a minimum of 600m²  and has a maximum frontage of 17m

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 form

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

Managing light and noise impacts

P20    Noise from the development must not affect existing or likely future dwellings on adjacent land unreasonably.

A20.1  Vehicle movement areas are located a minimum of 3m from any adjoining dwellings, or are provided with acoustic screening to the boundary

A.20.2 Any air conditioning plant is located toward the centre of the site

A20.3  Communal open space is located a minimum of 3m from adjoining dwellings or provided with acoustic screening

A20.4  The development complies with the Noise Impact Assessment Planning Scheme Policy”

The site is close to a railway station, but it appeared to be common ground that the distance criterion in A1-1 was not met. 

1. The frontage of the site (indeed its width generally) is only 15.591 metres.  Although it is not specifically called up, the parties provided the court in a binder entitled “City Plan Extracts” with a copy of the Transport, Access, Parking and Servicing Code (Ch 5 p 255); there was considerable reference to ideas contained in this Code such as:

“Performance Criteria  Acceptable Solutions

P5 Development must not impact adversely on the safety or operations of the road system

A5.1      One vehicle footpath crossing is provided in accordance with the design vehicle table and site access design guidelines in the Transport, Access, Parking and Servicing Planning Scheme Policy

A5.2      A vehicle manoeuvring area is provided on site in accordance with the design vehicle table and servicing layout design guidelines in the Transport, Access, Parking and Servicing

             Planning Scheme Policy so that the design vehicle can enter and leave the site in a forward gear

P6     Access, parking and servicing must not reduce the amenity of lands in the vicinity of the site

A6.1   Vehicular site access is located in accordance with the site access design guidelines in the Transport, Access, Parking and Servicing Planning Scheme Policy

A6.2     Vehicle site access is provided in accordance with Figure d Standard Non-residential Vehicle Crossing, in Section 3.5.2 of the Transport, Access, Parking and Servicing Planning Scheme Policy

Vehicle Parking

The layout of development must achieve adequate provision for on-site vehicle parking that is clearly defined, safe and easily accessible and must be designed to contain potential adverse impacts within the site

          Vehicle parking:

       ·   must not detract from the  aesthetics or amenity of an Area

·   must discourage on-street parking where parking ahs adverse traffic management, safety or amenity impacts

·   must be consistent with convenient pedestrian and cyclist access

A7.1    Parking bays, manoeuvring areas and driveways are designed with the dimensions and to the standards set out in the car parking table and car parking layout design guidelines in the Transport, Access, Parking and Servicing Planning Scheme Policy

A7.2    For development of any of the uses listed in column 1 of the car parking table, on-site car parking complies with column 2 of that table in the Transport, Access, Parking and Servicing Planning Scheme Policy except for non-residential development in the City Centre or City Frame

A7.3  On-site car parking numbers for development in the City Centre or City Frame as indicated in Map A – City Centre and City Frame Areas do not exceed 1 car space for every 200 m²  of gross floor area for any development other than multi-unit dwellings or Short Term Accommodation

A7.4   The number of car parking spaces as required by the car parking table are provided.  Two per cent of that number of car parking spaces are provided as marked and signed areas for motorcycles, with a minimum of 1 space, each measuring 2.5m by 1.35m ”

”

1. Lastly, in this “Cook’s tour” of City Plan 2000, one revisits Ch 4, and the South Brisbane Local Plan Code at p 236:

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

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

The potentially relevant provision is:

“5.16     Low-Medium Rise Residential Precinct and Medium   Rise Residential Precinct

Performance Criteria  Acceptable Solutions

P1    Buildings and structures must not overshadow or physically dominate surrounding land uses and structures

A1     Proposals perpetuate a closely settled 2 to 3 storey residential area providing a range of accommodation types.  Proposals for 3 storey buildings take into account:

·   Whether the site is close to major roads, shopping areas or parks

·   The land use, scale and character of adjoining development

·   Topography, and whether other sites will lose views or be overshadowed

·   The proposed scale, form, character and siting of the development.”

1. The current planning arrangements for the area seek to pursue twin goals of preserving pre-1946 houses likely to be located at the front of their sites and of establishing multi-unit dwellings which, in practical terms, on a typical site will need to be extensions of an existing pre-1946 house or be free-standing behind such a house. 

1. The Council responded to the application with an Information Request under s.3.3.6 of the IPA of 5 June 2002:

“The Council has carried out an initial review of the above application.  However, before it can fully assess the proposal the Council requires that you submit the following information:

1.          Provide amended plan(s) of layout to show the following:

(a)minimum driveway width of 5.0 metres for the first 6.0 metres of the driveway to allow vehicle ingress to and egress from the site at the same time.

(b)privacy screens to all side boundary facing balconies in accordance with A3.1 of the Residential Design – Low Density, Character and Low-Medium Density (RD-LMD) Code;

(c)minimum side boundary setback(s) of 2.0 metres where the overall height of the proposed dwelling units exceeds 4.5 metres in accordance with A8.1 of the Code;

(d)maximum height of 3.0 metres for the proposed built to boundary wall on the east side elevation of the site;

(e)minimum setback of 6.0 metres from the rear boundary for the upper storey of the proposed dwelling units;  and

(f)    combined height of fences/retaining walls.  Please note that the combined height should not exceed 2.0 metres in accordance with A8.1 of the RD-LMD Code.

2.The subject site appears to be affected by an overland flow path.  Therefore, you will need to provide a Hydraulic Report prepared by a Registered Professional Engineer of Queensland which identifies the external catchment as well as determine the width, depth, and velocity of the overland flow path including an appropriate easement over the path.  Also, the report will need demonstrate that there will be no diversion of the overland flow or adverse impact on adjoining properties for all storm events. 

3.Provide survey details which clearly show the extent of any proposed cut, fill, retaining walls, and finished floor and roof levels to RL AHD.  Please note that the extent of excavation work to be carried out at the rear of the site appears to be in excess of 1.0 metres therefore you will need to address the Filling and Excavation Code. 

4.Demonstrate manoeuvring for a minimum five (5) on site car parking spaces, in particular, the double bay garage at the rear of the site in accordance with Transport, Access, Parking and Servicing Planning Scheme Policy.  Please note that the minimum number of car parking spaces required on site is five (5) being three (3) tenant spaces and two (2) visitor spaces in accordance with A16 of the RD-LMD Code.

5.Demonstrate compliance with Performance Criteria P9 of the RD-LMD Code in so far that the existing and proposed dwelling units are provided with sufficient communal and private open space.  Please note that less than 30% of the site area is provided as open space with the existing dwelling unit having less than 35 m²   of groundfloor private open space. 

6.Demonstrate compliance with the Noise Impact Assessment Planning Scheme Policy in accordance with A21.1 of the RD-LMD Code.  Please note that the subject site is within 150 metres of an Arterial Road Corridor being Gladstone Road.

7.Provide floor plans of the existing dwelling unit.  Please note that such plans are required to ascertain the overall gross floor area of the multi unit dwelling.  Also, if any partial demolitions of the pre-1946 dwelling are proposed, then you will need to provide a partial demolition plan and demonstrate compliance with the Demolition Code.”

1. This document collects a number of issues that have continued to be agitated and may be seen as prescient. The qualification might be made that the noise impacts of concern in the appeal have been those dealt with in A20.1, requiring vehicle movements to be separated by a minimum of three metres from any adjoining dwellings, or acoustic screening provided. As will be seen, it is asserted there is an absolute incompatibility between the acoustic fencing indicated and preservation of the overland flow path mentioned in the letter. The letter does not mention that the site’s frontage is only 15.591 metres, falling short of the 17 metres indicated as an Acceptable Solution in A1.3. (See [18].)

1. A survey conducted found an additional seven square metres above the 663 square metre area indicated in the application. The Council advised in its acknowledgment notice pursuant to s.3.2.3(2) of the IPA of 30 May 2002 that the application would be assessed using Impact Assessment Procedures, that public notification was to be carried out in accordance with s.3.4.4(1). Submissions were attracted from Ms. Tod, Mr and Mrs Bonney, who reside at 10 Prospect Terrace, Highgate Hill, immediately behind the site, also Mr and Mrs Szeto, Ms Tod’s neighbours to the east.

1. At the risk of some repetition, but to indicate that the court appreciates the submitters’ concerns, I set out, first, Ms Tod’s objections:

“Vehicle Movement. Parking. Noise

P17The space allowed for manoeuvring cars appears to be below standard. The design of the cars to manoeuvre within the space available must be shorter than a standard model. This will invite visitors and residents alike to park on the street creating congestion. Alternatively the noise from these cars manoeuvring on site will increase due to the difficulty of negotiating the space.

Al 7.1 The development does not provide for screening of noise and light from cars onsite. The existing house is low set (approximately one metre off the ground and not high set as indicated on the .original application) and will experience considerable impact from the onsite flow of traffic. Unit I will also suffer this impact.

Al 7.3 The visitor's car parking bay is not visible from the street so it is unlikely it would be readily utilized (even if it were possible to manoeuvre within this space).

Al 7.4 I have serious concerns about the noise impact on my property. The acoustic report does not take into account the additional noise create by the awkward manoeuvring or the impact of sound bouncing on hard surfaces. This is of particular concern as I have the main bedroom located approximately 30 cm from the fence line. This room sits almost at ground level.

P15 There is very minimal space provided for vegetation to soften the impact of the driveway which will create heat and glare and amplify the noise of cars manoeuvring in the tight space allowed for this purpose.

Inadequate Private Open Space

P9A9.1 and A9.3 The existing house has less than 35 square metres of private open space if a minimum dimension of 3 square metres is taken into account. The calculations on the plan must be taking into account the driveway to arrive at a figure of 742 square metres. Unit 1 also has than 35 square metres of open space. Balconies and part of the western boundary are under 3 metres.

The private open space is also poorly aspected with most of it facing the west or south. The north and east are poorly utilized in this development plan.

Imposition on Boundaries

P13A13.3 The rear boundary exceeds the minimum setback of 6 metres

A13.l The western boundary exceeds the minimum setback of 2 metres for the upper level

Poor Environmental Design

P14A14.l Units are poorly orientated to the north not because the site has problems as indicated in the report's response but because the developer is aiming to maximise the financial potential of the property thus losing sight of the climatic impacts and lifestyle preferences in Queensland. The site has a superb northern aspect which could be taken advantage with a sympathetic design.

A14.2 The Unit living areas do not take advantage of the northern aspect of the site. The garages all occupy the most favourable space. Living areas are orientated to the west and will most likely require air conditioning to be habitable in the summer.

A14.4 Ventilation in the downstairs area of Unit 2 is very poor given that it will miss the north easterly breezes almost entirely. Bedrooms 1,2,3 also are not orientated to the breezes. Unit 1 has similar problems. The upstairs bedroom balconies face the roof of the existing dwelling and the hard surface driveway both of which will create significant heat in summer.

Garbage Bins

P22A22.1 The developer proposes to place the garbage bins in the garages. I have concerns that residents will be unwilling to place their garbage in a closed area during summer months. No place for bins has been allocated to the existing residence. Bins may be left in the street permanently as is happening with a similarly dense development across the road in Brook Street.

Garage- Abutting Eastern Boundary

A13 I have concerns that the garage will require excavation to a depth greater than 1 meter. I do not consider the plans to be a true reflection of the excavation required and this will certainly impact negatively on the vegetation I have growing on my side of the proposed garage site should an excavation take place.

Stormwater Drainage

I have concerns related to the overland flow path of the stormwater runoff The proposed development runs almost full length east to west Water running down the hill from the south east will pool in this corner creating potential problems on site. Has a pump been included in the plan to cater for this sometimes massive runoff.

4.3 Multi-unit dwellings in Low-medium Density Residential Areas

Bulk and Size of the Proposed Development

P1A1.1 A1.2 "Whilst the design has remained under the 8.5 meter allowance and the 50% GFA in all other respects the development lacks sympathy with the surrounding environment. The design is not in keeping with the tin and timber character of the area and the bulk stands out as excessive and obtrusive against other housing in the street.

Al.3  The site area is supposed to have a frontage of 17 metres. The site is only 15.591 wide.

Summary

It is my belief that the proposed development is totally unsuitable to the site. Perhaps the most critical problem is that the site is not wide enough to accommodate the needs of such a dense development Issues around parking and associated noise, poor environmental design and use of aspect, the limited and poorly aspected private open space, imposition on boundaries, stormwater runoff and excavation all relate back to a fundamental flaw - the site is too small to manage two, four bedroom townhouse alongside the existing low set house.

I understand that Council are considering changes to the Town Plan to ensure that backyard developments are sympathetic to the existing design elements in the streetscape. I welcome this type of innovation and hope that such proposed changes may be considered when assessing this application. If the development were to go ahead we would be left with a building which is not only an eyesore detracting from the heritage value of the area but also dwellings which are unsympathetic to our Queensland lifestyle. Where do children play and where is the space for vegetation to soften the summer glare and heat?”

1. A truncated version  of the Szetos’ objection is:

“1. The development does not appear to meet the minimum required area for private open space …

2.  P 14 … refers to the living environment … Both of the Units have their living areas facing the west and Unit 2 in particular will have very poor ventilation in the living area. … Air conditioning units will have to be installed to create a manageable living environment.

3. The Units … are bulky and are not in keeping with the surrounding architecture …

4. Car parking looks to be problematic. Cars will have difficulty manoeuvring … 12 bedrooms on the site and very little outdoor space total would suggest that the Units and House will not be used by families. … We are worried about the noise of cars coming and going with so many people potentially living on the site.

4. … it is likely garbage bins will be left out in the street. This is unsatisfactory and unsightly.

5. The site has a frontage of 15.591 in width. A1.3 says that the minimum frontage should be 17 metres. The site it too narrow …”

and the Bonneys’ objection, similarly abbreviated, was:

1.  General comments and broad objections

… There are no multi dwellings in the near vicinity.

The proposed design is at odds with the character of the area as:

1. It is a multiple level, multiple dwelling of modern design;
2. It eliminates the yard area characteristic of the area;
3. It is a high rise building in a predominantly low rise area;
4, The area is predominantly a mix of pre and post war architectural themes of low intensity and diversity, The new development is not compatible in size and design with the neighbouring houses.

2. Specific objections under the Code.

Section 4.3 Part A: Performance criteria Pl

… two, four bedroom, 2 storey units … is not consistent with the present low density nature of the locality, regardless of the present residential area zoning,

Pl: Al.3 The block frontage is 15.597 metres … The requirement is 17 metres …

Section 5 Part B:          

Performance Criteria P1

P1: A 1.1 The design … will be seen as a large, single, bulky construction … that will show little variation in building form …

Pl: A 1.2 Roof pitches are all steeply raked skillions compared to the surrounding gables and hip roofs.

Performance Criteria P2

P2: A2   The clear intent of P2 is that the development must be orientated to the street … Only one balcony faces the street and this is fully screened as it directly overlooks the existing residence.

Performance Criteria P3

P3: A3.1 … The encouragement of the use of the balconies will promote the intrusion on our privacy, particularly with the minimum set back being reduced to 4 metres as proposed,

Full screening of the balconies will increase the appearance of bulk …

P3: A3.2 The unit 1 balcony that is street facing is a fully screened balcony in direct contravention to this Acceptable Solution under the Code.

Performance Criteria P9

P9: A9.1 The minimum 30% open space requirement is not met …

Performance Criteria P13

P13: A 13.3 The rear setback is 4 metres to the first floor balconies and 4.5 metres to the full rear wall of the two storey Unit 2. This is a clear contravention of the code and reinforces the bulky character of the development compared to all neighbouring properties. All adjacent properties in Brook Street are single dwelling cottages and Queenslanders located at the front (northerly end) of the allotments.

Performance Criteria P14

P14: A 14.4 Prevailing wind direction is from the north and north-east. Orientation of the development is south with the main living areas on the ground floor. The external accesses are to the south and west and will not receive direct breezes. The proposed car parking and garages will block prevailing, cooling winds in summer.

Similarly for the first floor orientation where Unit 2 has only one northerly facing window. Unit 1 has two north or easterly openings, however the openings and balcony to bedroom 2 will be shielded by the roof of the existing dwelling's pitched roof.

P14: A 14.1 The site shape is a north/south rectangle that can allow either northerly or southerly orientation. The fundamental design is flawed by the orientation away from the north.

P14: A 14.2 The living areas are orientated to the south and west with both units having only one opening to the west in the living areas. Consequently, the living areas will be dark and will require artificial lighting during the day to support the natural lighting because of the southerly orientation.

Glass windows on the western side will increase the heat loading of the dining areas in summer, potentially requiring air conditioning of the units. No allowance has been made in the design for the location of these air conditioning units should they be required. Shading of these windows to reduce heat loading will also increase the need for artificial lighting. The overall design is not energy efficient.

Performance Criteria P1 6

P1 6: A 16 … Brook Street … has a 2 hour parking limit, to prevent congestion in inner city streets. This development will be in opposition to the intent of the parking limitations by not adequately addressing off street parking facilities for the three dwellings that will share the allotment.

Performance Criteria P1 7

P17: A 17.3 …… it is unlikely that the two car parking bays will be utilised, as they would appear to be inadequately sized and inappropriately located. …

P19: A 19 The location of the rear of the units within 4 metres of the rear boundary will impact significantly on our quality of life should any external lighting be installed on the southern side of the development. This will be in addition to the impact of internal lighting spilling over from the southern aspect balconies.

Performance Criteria P20

P20: A20.2 … Provision of air conditioning should be made in the development proposal with appropriate acoustic screening to prevent noise impact in a predominately quiet, residential area.

P20: A20A The development is increasing the dwelling density of the allotment by 150% or the equivalent of three dwellings within the area normally occupied by one dwelling in the surrounding area.  The potential for noise increase impacts is quite high. 

Performance Criteria P22

P22: A22.1 Garbage bin storage (two wheelie bins per dwelling … has not been catered for …”

1. Mr. Trotter suggested (p.23) that “Ms Tod’s real complaint is the planning designation of the site rather than the proposed development”.  The objections tend to bespeak understandable unease at the introduction of eight additional bedrooms in a new building in the back yard next door.  They mention a number of respects in which the ambience of the locality will change, which can hardly said to be improvements, except that they play their part in accommodating the influx of population into south east Queensland in an area where that would readily be seen as appropriate, given its location close to the centre of Brisbane.  Everyone must accept what follows from the site’s (and its neighbours’) inclusion in the Low-Medium Rise Residential Precinct. 

1. Ms Geue (at p.52) was invited to contemplate the possibility of townhouses being constructed in the back yards of the area generally.  She gave the architect’s answer:

“I think it would be preferable to knock down the timber and tin houses and build blocks of units, which would achieve the same densities of dwelling but lose the original character of the street.”

She was prepared to be optimistic about amenity even if her client’s development were replicated in surrounding back yards:

“Primarily because we’re designing a whole environment such that their landscapes spaces are actually part of where they live rather than just the back yard, that’s largely ignored at the moment, and on the assumption that other developments that surround it would be equally responsible, everyone ends up with useful outdoor spaces rather than neglected outdoor spaces and it in fact enhances those developments”.

1. Ms Tod’s planning expert, Mr Panaretos, preferred a solution in which owners of adjoining sites would be given strong inducements (if not forced) to amalgamate them.  For the moment, it appears that City Plan 2000 encourages what might otherwise be thought a curious pattern of residential development in which, if this site and proposal are a guide, most residents of an area will be living in multi-unit dwellings behind a “timber and tin” cottage, and gaining their street access along a narrow driveway which will (almost inevitably) be close to the cottage, and to the side boundary of the site (and whatever development may be located near to that boundary).  There already exists a handful of such “front and back” arrangements in Brook Street, including one directly across it from the site. 

1. During the appeal hearing, a view was had of Brook Street, the site and Ms Tod’s property.  Brook Street exhibits an interesting mix of highly disparate housing styles.  No building there is particularly modern and a fair number of the houses are very old in Brisbane terms.  There are 18 or 19 buildings on each side, some with another structure behind.  On the south, where the site is, there are no obviously large buildings, there are two multi-unit residential buildings at the western end, where Brook Street joins Gladstone Road.  At the other end of the street, on the northern side, there is one large apartment building (Yale), consisting of two compact floors of accommodation above parking.  The other “new” building at No. 20 has only one floor of flats, but with its pitched roof, is, visually, more of an intrusion upon the streetscape than Yale.  The co-respondent’s planning expert, Mr. Vann, embarked on the invidious exercise of grading the residences.  Some have been beautifully maintained, others, to use Ms. Geue’s word, have been “neglected”.  Although in many instances located in old “houses”, there is already a substantial element of “multi-unit dwellings” in Brook Street.  Ms. Tod’s is one of the properties where privacy has been provided by mature trees in the front yard.  There is only one house (No. 25) located towards the rear of its site. 

1. Ms. Tod having availed herself of her right to institute the appeal, it is not for her to establish that it should succeed, but for the co-respondent to establish that it should be dismissed: IPA s.4.1.50(2). The proposal has been amended in various respects since the Council's information request and the submissions, indeed, since the Decision Notice itself. Ms. Geue’s latest drawings are dated July 2003. For purposes of the appeal (and the IPA) the changes can be regarded as “minor”; they improve or attenuate the impacts of the development. One of the new units will now have three bedrooms only. An extension to the original cottage will be removed, so that it is reduced to three bedrooms; while it is presentable enough as it is (as shown in Exhibit 13A), there are now proposed changes illustrated in Exhibit 13B (reopening of a veranda to be provided with timber railings, replacement of a brick front and part-side fence with a timber one, and incorporation of more sympathetic (or pleasing) doors and windows) which will make a positive contribution to the streetscape. The townhouses will now have external finishes much more in harmony with the appearance of the cottage and surrounding houses. The deficiency of frontage remains. This, however, is not necessarily insurmountable, as “Acceptable Solutions” are not identified as the only means of satisfying Performance Criteria.

1. The rational way in which to approach an appeal such as this is to focus on the issues the appellant raises, and not for the court itself to find other issues.  Three qualified town planners have assessed the proposal, Mr. Vann (called by the developer), Mr Kay, the Council's outside planning consultant, and Ms Tod’s planner, Mr Panaretos, who arrived at a less supportive conclusion than his professional colleagues:

“At 670m2,  the site is large enough to accommodate a multi unit development.  But the proposed development fails to recognise the unique constraints of this particular site.  The three significant constraints are:

(a)An existing house at front of the lot to be retained which dictates that vehicle traffic is forced toward the side boundary;  combined with

(b)A narrow allotment, narrower than the prescribed Acceptable Solution;  and

(c)A significant stormwater overland flow channel, limiting layout options and dictating a broad, unobstructed path from the development site to the appellant’s land.

The combination of these three constraints results in a layout which can not satisfy the Purpose of the Low Density, Character, Low-medium Density Code.  Consequently, the proposal is Impact Assessable Generally Inappropriate, and it has failed to demonstrate satisfaction of, or compliance with:

·     The criteria listed for determination of Generally Inappropriate land uses in Chapter 3 of City Plan; 

·     Desired Environmental Outcomes for the Low Medium Residential Area.

Indeed, to achieve a yield of three dwelling units on site, the designer is forced to adopt a compromised layout, squeezing vehicle manoeuvring into inadequate space against the eastern side boundary and failing to respect the amenity of the neighbouring property.

In addition, the inadequate vehicle manoeuvring space results in either:

·     Multiple turning movements for cars, compounding the impact of noise and fumes;  or

·     Multiple car reversing movements onto Brook St at a point where sight lines are compromised creating a dangerous conflict with pedestrians.  Brook Street is a street popular with pedestrians, especially children, due to the proximity of three schools and shops.”

1. It is a situation in which compliance with Applicable Codes must be examined at two stages, the first of them being in determining the level of assessment.  Code assessment is permitted under Chapter 4 (See p.217 and [14] above) only for proposals “complying” with the Code indicated.  The consequence of non-compliance is that Impact Assessment is called for in accordance with Relevant Codes or Policies.  Under Impact Assessment, Generally appropriate (p.218), are eight items, including Child Care Facility, Shop or Office less than 250 square metres GFA, and Short Term Accommodation where fronting an arterial route.  Under “Impact Assessment, Generally inappropriate” one finds:

“1.        Demolition or removal of a Heritage Place

2.          Reconfiguring a lot (other than subdivision of existing or approved buildings) where any resulting lot is less than 400m² or any resulting rear lot is less than 600m² (excluding access way)

3.          Any other material change of use.”

1. The categorisation of a use as generally inappropriate necessarily raises the “bar” from the point of view of sufficient planning grounds or other appropriate extenuating circumstances being identified to justify approval notwithstanding conflict with planning instruments.  It is a somewhat inexplicable movement from one extreme to the other to find the use of Multi-Unit Dwelling, which is code assessable and clearly desired in the locality, becoming impact assessable and classified “generally inappropriate” on the same site, potentially on the basis of some modest or arguable non-compliance.  I am inclined to agree with Mr. Trotter’s submission that “the development should be considered as requiring code assessment under the Local Plan.  It would be a tortured construction of the planning documents to conclude that the development was generally inappropriate and requiring impact assessment.”  That the parties may have accepted (with more or less willingness) that the proposal required impact assessment does not conclude the matter:  the categorisation of the proposal as “generally inappropriate” in my view raises a question as to the correctness of the concession. No one has suggested that a determination in favour of Code assessability deprives Ms Tod of her right to have her appeal heard in the ordinary way.  The exercise of public notification has clearly been fruitful already.  Ms Tod and the other submitters raised matters which had not occurred to the Council.  I am satisfied that in consequence the proposal has been considerably improved, indeed that it has been rendered more perfectly compliant with the Residential Design – Low Density, Character, and Low-Density Code and Residential Character Code.  (Generally, it may be salutary to establish a system in which immediate neighbours, at least, are informed of development proposals, and afforded an opportunity to make submissions to the assessment manager as to whether such Codes are being complied with in circumstances like these;  it is the neighbours, not the assessment manager, who must live with the consequences – and “two heads may be better than one.”)

1. Compliance with the former Code is a condition of the developer’s gaining the advantage of Code Assessment.  Strictly, once it is determined what are the Applicable Codes on that basis, one of them being that same Code, the other the Residential Design-Character Code, compliance must be looked at for a second time. This has an Alice in Wonderland aspect.  The appellant’s case was that the compliance issue is looked at more strictly in the first examination, in which she and Mr Panaretos would have it that there can be no leeway allowed, in particular that Acceptable Solutions must apply, it not being open to show that Performance Criteria are met by use of other methods.  In my opinion, this approach is over-technical; compliance, in both examinations, should be looked at in a more practical way.  Substantial compliance ought to be sufficient.  The myriad instances where “No acceptable solution is prescribed” tend to confirm that where acceptable solutions are indicated, this is not done to exclude other ways of satisfying Performance Criteria. 

1. I understand the force of Ms Tod’s argument that the 17 metre width called for as an Acceptable Solution is important.  Mr. Vann and Mr Kay could see no justification for that dimension which, historically, seems to represent a reduction from 20 metres formerly prescribed in an analogous context;  Mr Panaretos suggested a justification in terms of 17 metres as the effective frontage of typical pre-1946 houses taking into account the width of a driveway and including conventional set-backs and landscaping. The wisdom and appropriateness of the dimension was said to be demonstrated by the difficulty that has been encountered in fitting the proposal on to a narrower site.  There are difficulties in providing adequate side set-backs; the provisions for car parking and manoeuvring on site are extremely cramped;  a consequence is that driveway, manoeuvring areas and some parking are jammed against Ms Tod’s boundary and that use of them will tend to impair her amenity. The significance of width is underlined by reference to specific dimensions in Acceptable Solutions 17.4 and A20.1 and A20.3 (Chapter 5 p.172) in respect of a two metre vegetated buffer and three metre set-backs in respect of vehicle movement areas and communal open space, as Ms Tod’s written outline of argument states;  however, in each case acoustic screening is specifically an Acceptable Solution.

1. Accepting such observations does not lead the court to accept the conclusion Ms Tod and Mr Panaretos urge.  The court is justified in taking a pragmatic approach here.  The existing cottage on the site is generously set back from Ms Tod’s boundary to the east.  That  is where the driveway has always been located, and where it must be continue to be located if the cottage is to be preserved.  In contrast, the set-back of the cottage on the west side is miniscule.  If there had been another 1.41 metres width to play with, one imagines it would have been allocated to that cramped boundary.  A reasonable separation between the cottage and the house to the west is provided by that house’s driveway – again one running close to the fence.  The proposed townhouses will be sited well to the west, where set-backs are problematic or minimal.  As it happens, the adverse impacts flowing from restrictive width will be suffered principally by future occupants of the site and No 9 to the west, from where no adverse submission was forthcoming, notwithstanding the availability of an opportunity to make one, presumably.  I have concerns of my own that, should No. 9 be developed as No. 11 is to be developed, the generous back yards of Brook Street may come to look and be very crowded.  However, strictly, success of the co-respondent’s application does not set a precedent requiring success of any other application.  It may turn out that success of a development application for No. 11 has the consequence that neighbouring owners are not permitted to replicate the new construction because it would not “respect” or would unduly impair the amenity of what goes upon No. 11. 

1. In that vein, it is worthy of note that the single circumstance most responsible for creating concerns regarding Ms Tod’s amenity is that parts of her residence, in particular the main bedroom, are erected extraordinarily close to the western boundary.  Indeed, the recent survey tends to show that Ms Tod’s building encroaches on the site, just as some existing improvements on the site encroach on No. 9, to the west.  If it comes to assessing impacts on neighbours, notwithstanding that respect has to be given to existing development, it seems only commonsense that the eccentric location of a main bedroom near to or encroaching across a boundary ought not lightly be allowed to stifle development next door.

Traffic Matters – Parking and Manoeuvring of Vehicles.

1. Mr Watson, who gave expert evidence for the appellant, was highly critical of the cramped parking and vehicle manoeuvring areas proposed.  Mr. Holland, the developer’s expert, said the parking arrangements were adequate on the basis of compliance with the Australian Standard.  They fall short of Council standards which apply in larger developments, particularly those which the general public may have rights or opportunities to access. Mr Watson emphasised the limited space available for manoeuvring of vehicles to permit them to enter and leave the site forwards, rather than reversing.  He regarded this as a safety issue for users of Brook Street.  On the figures for such usage presently available, I do not consider there need be such concern.  I think common experience is that reversing out of private driveways in Brisbane is very much the rule rather than the exception.  In the not too distant future, should a lot more of Brook Street be developed in the same way as the site, there may be congestion.  Potential future developments might be frustrated or compelled to incorporate appropriate arrangements.  Market forces can be relied on to ensure that those who do not feel competent to cope with tight parking, 30 metre reverses and so on, will not become residents of the site.  The five parking spaces provided may well prove inadequate to accommodate the vehicles of inhabitants of the 10 bedrooms that will be on site, which may well all be occupied by licensed drivers.  Those unable to park on the site will have to take their chances of finding parking on the street, and potential problems if the two hour limit is enforced. They may be tempted to use the (minimum) amount of private open space on the site.  It is not just a case of market forces and consumer choices sorting things out here:  the five spaces to be provided comply with relevant guidelines – and one ought not to overlook the fairly strong policy that is evident of discouraging use of private motor vehicles in this area.

1. The more significant aspect of the introduction of enormously increased vehicle movements to the site (presently confined to a driveway and rudimentary carport half way along the boundary) lies in the threatened interference with neighbours’ amenity.  Depending on the characteristics and habits of ultimate residents, Mr Holland’s prediction of six vehicle movements per household per day, giving a total of 18 (that is only three instances of a vehicle going out and returning per household per day) may well turn out too modest:  Mr Watson estimated as many as 10 movements per household per day, which accords more with testimony I have heard in other appeals and may prove closer to the truth. I think it pretty well inevitable that Ms. Tod will be aware of normal vehicle movements, engines starting, car door slams and the like as they happen in increased numbers.  That awareness is likely to limit the overall attenuation effect of particular noises resulting from proposed acoustic fencing along the boundary.  The acoustic experts, Mr. King and Mr. Thorne, reached a good deal of common ground, including the effect of leaving a 100 millimetre gap at the bottom of the acoustic fence (to accommodate storm runoff) which was estimated at a loss of 1 dB attenuation.  Mr. King was more disposed than Mr. Thorne to regard Ms. Tod as sleeping undisturbed notwithstanding 10 to 15 noises in the night.  (Mr. Thorne thought it took only two to three noises to wake a person, after which he or she might be considered disturbed, and possibly annoyed.) 

1. The impacts Ms. Tod dreads (and I accept dreads genuinely, notwithstanding that she gave no evidence) are, it seems to me, the kind of thing to be expected from the City Plan’s encouragement of more intense residential development in the area.  If Mr Panaretos was intending to assert that a much increased population density was sought only in certain designated areas, for example fronting Vulture Street and Gladstone Road, I cannot agree with him.  I am afraid that, properly interpreted and applied, all of the comforting language implying preservation of existing amenity has to accommodate (in multiple senses) considerably increased numbers of inhabitants, and their motor vehicles – and, in most cases, in  what may have been to date quiet back yards.  I must regard the noise impacts to be anticipated as acceptable (assuming an appropriate acoustic screen), applying the relevant tests. 

1. One attenuation measure which the developer offered during the appeal, and which ought to be required, is “non-squeal” driving surfaces.  So far as the acoustic screen is concerned, in the vicinity of Ms. Tod’s bedroom, on the evidence, that ought to be 2.4 metres high, rather than the two metres at one time suggested, which would be a sufficient height closer to the street alignment.  Ms. Tod is suggesting a three metre high acoustic screen in the central part, with the top metre of glass, for reasons of admitting light to her property.  The justification for the last 600 millimetres of height is the noise that will be emitted by vehicles in the parking places towards the western side of the site (separated from the boundary only by open space about a car’s length in width).

1. Concern was expressed regarding the visual impact of such a high screen (it is perhaps to be hoped that such screens do not become the rule along side and back boundaries in residential areas). The parties’ conduct of the matter suggests that the co-respondent was offering to do whatever the court thought reasonable.  In the circumstances, the court ought to go along with Ms. Tod, should she persist in her wishes, as she has done in a supplementary submission posted to the court.   I do not know whether the relevant provisions permit such a screen – which would certainly be no higher than other structures found on boundaries, such as tennis court fencing.  The supplementary submission, received on 9 September, invites the court to require that the developer should pay for air-conditioning of part of her house if persuaded this was necessary to reduce the import of vehicle noise to an acceptable level.  I do not seriously consider this suggestion – which is at once new in the appeal and novel in principle, even though the co-respondent’s solicitors response raised no objection. 

Drainage Issues – Impact on the Acoustic Screen

1. The hydraulic report required by the Council identified the catchment for overland water flow on to the site.  Brook Street was said to take its name from a “brook” once located there.  Dorchester Street (north of Brook Street and parallel to it) is said to be higher.  Runoff from only a handful of properties on the northern side of Brook Street would get to the site. Most of the catchment area is to the west of Gladstone Road, bounded by Dornoch Terrace, Hampstead Road and a line running roughly from the western end of Julia Street at Hampstead Road to Gladstone Road opposite the midpoint of the Dorchester Street-Brook Street block.  East of Gladstone Road the catchment has its southern tip where Dornoch Terrace becomes Gloucester Road. The sub-catchments here, as one comes down the hill, are only eight or nine house block widths across. These four subcatchments (likewise the large one west of Gladstone Road) are divided by “sags” in the roads which have the effect of penning overland flow and reducing flow on to the site.  There is one such “sag” in Gladstone Road affecting the flow path from Julia Street.  There are three of them (in Emily Street, Audenshaw Street and Prospect Terrace) affecting the flow path down towards the site from Gloucester Road east of Gladstone Road.

1. The two flow paths join at about No. 3 Brook Street, three allotments west of the site.  Combined, they reach the Brook Street alignment at the front of the site.  There may be some impact, other things being equal, at Ms. Tod’s boundary.  At present, a block or concrete wall about 30 centimetres in height runs towards the boundary, the last couple of metres having a higher brick fence (proposed to be removed in restoration of the cottage).  There never seems to have been any difficulty of water being dammed on the site.  It would not be too difficult for water to get around the short length of brick fence (down the driveway on the site) or even across the low wall at times of high flow.  However, the solid acoustic screen poses a problem, given its significant height.  The hydraulic experts, Mr. Farr for the appellant – a ‘last minute’ witness, and Mr. Hawthorne for the co-respondent, are constrained by a set of conservative principles insisted upon by the Council, and doubtless many other authorities, to do their exercises focusing on the consequences of a 1 in 50 year event on assumptions that (a) the sags have no effect and (b) the commercial development in Gladstone Road ought to be considered as removed, creating no impedance whatever to overland flow.  I do not think the court should presume to know better, however unrealistic those assumptions might appear.  The work that has been done, strangely, contemplates that water will not pass under Ms. Tod’s house, which, at least at the front, is on stumps.  There is, it seems, unwillingness to accept that spaces under houses will remain unobstructed.  It is common sense, I suppose, that people may store things there, or close them in. 

1. The point of the local government’s concern is to ensure that living areas in new development, even in a 1 in 50 year event, are well clear of overland flows.  It is the interests of prospective occupants of the townhouses on the site that concern us here.  While Mr. Hawthorne considered a 100 millimetre gap for the northernmost 15 metres or so of acoustic screen would alleviate concerns about the theoretical rush of water, Mr. Farr considered the gap ought to be 200 millimetres and perhaps longer.  This would presumably interfere greatly with the acoustic efficiency of the screen.  I took the appellant’s case to be that the developer was faced with a dilemma that could not be resolved: he could not both leave the overland flow path unobstructed and provide the appropriate noise attenuation measures called for by the relevant Code. 

1. Mr. Farr suggested that the bottom part of the acoustic screen could be hinged, a solution he had known adopted in various locations.  He expressed doubts as to its long term effectiveness, on the basis that the long term adequate functioning of the hinge could not be vouched for.  Also, he suggested that the swing-space required would have to be on the site.  Here, that would embarrass the co-respondent, because there may not be sufficient room, given the constraints of the site, which is required to have a five metre wide driveway for the first six metres in from Brook Street. The swing-space will be needed east of the screen. I think that, in this respect, the court can have confidence in the ability of engineers to work out a solution.  I would be willing to indicate a preference for the hinge arrangement, and partly because the parameters under which the hydraulic experts are required to work, in my opinion, tend to overstate the depth of overland flow that will actually be experienced in this location.  I would not be inclined to require the swing-space to be accommodated on the site.  I would expect the occasions when it was needed to be so rare (I would think non-existent) that it would not be unreasonable to expect Ms. Tod or her successor to permit a certain amount of swing into No. 15 Brook Street in the event that the 1 in 50 year phenomenon actually comes about in accordance with the worst case assumptions we are required to make. That is subject to a point in the supplementary submission that ought to be accepted – namely that the swing space should not require alteration of established buildings on No. 15.  It is not unreasonable, either, to expect the residents of the townhouses to look after their own interests by ensuring that the hinges remain functional.

1. Although the present development application is Code Assessable (see IPA s.3.5.13(3)(b), or Impact Assessable (see s.3.5.14(2)(a)), the assessment manager’s decision (now, relevantly, the court’s) must not compromise the achievement of the desired environmental outcomes for the Planning Scheme area. In the former case, the assessment manager’s ability to refuse the application arises only if:

“(a)       the development does not comply with the applicable Code; 

and

(b)compliance with the Code can not be achieved by imposing conditions.” (s.3.5.13(4)).

The flexibility that exists is underlined by subsection (2) whereby:

“The assessment manager’s decision may conflict with an applicable Code if there are sufficient grounds to justify the decision, having regard to the purpose of the Code.”

1. Where impact assessment is required, there is no corresponding inhibition against refusal, but one encounters the relatively familiar provision in s.3.5.14(2)(b) that the decision must not “conflict with the Planning Scheme, unless there are sufficient planning grounds to justify the decision.” It is not enacted that the “sufficient grounds” referred to in the earlier section must be “planning” grounds. I do not think the distinction matters in this appeal, if there is a meaningful distinction.

1. Mr Panaretos has helpfully organised the various conflicts, non-compliances and compromises (or threats) for the achievement of DEOs posed by the present proposal, in his opinion.  First, he says, in relation to Part 4 of the Strategic Plan:

“Paragraph 4.2.2.1 is titled Meeting realistic expectations of future amenity  and states:

People should be able to chose their residential location with realistic expectations for the future amenity of the area.  The Plan’s strategic directions in this regard are to [amongst other things]:

·     Prevent intrusion of development that could seriously detract from residential amenity …

·     Mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy

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

The approved plan fails to satisfy this basic test for new development, as it relates to the existing adjoining residence at # 15 Brook Street.  Noise and disturbance generated by the approved development will have an unacceptable impact on that adjoining residence for the reasons given later in this report.”

1. Next, in respect of the Intent of the Low-Medium Density Residential Area, having noted 5.4.1 and 5.4.2, set out above at [10]:

“It is apparent from these statements that new development should be restricted to land of sufficient size and shape so as to integrate into the existing fabric of established areas and be designed to co-exist with minimal impact on neighbouring properties.

The Level of Assessment table for Low Medium Density Residential Areas states that multi unit dwellings are Impact Assessable Generally Appropriate where complying with the Residential Design – Low Density, Character and Low-medium Density Code.  Otherwise, they are Impact Assessable Generally Inappropriate.

According to that table, such development will be assessed against the following codes:

·Residential Design – Low Density, Character and Low-medium Density Code;  and where located in the Demolition Control Precinct:

·Residential Design – Character Code

In this case, the level of assessment specified in the local plan overrides the above level of assessment.  This is discussed below.”

I take it that, if it mattered, his opinion would be that the proposal’s design is deficient. 

1. Turning to the South Brisbane Local Plan, Mr Panaretos seizes on the tacit concession that the proposal is Impact Assessable (with which he says he agrees).  He says that:

“The proposed development cannot achieve the purpose of the [Residential Design – Low Density, Character and Low-Medium Density Code], nor can it comply with certain Performance Criteria and Acceptable Solutions, as demonstrated .. below, and is therefore ‘inappropriate’ development”.

He goes on:

“As a consequence, the onus is on the proponent of the development to demonstrate that the development satisfies all those criteria listed in Section 3 of the City Plan, as a prerequisite to approval.  These unusual level of assessment provisions place particularly significant emphasis on compliance with the detailed provisions of the code, and any departure from the code must be comprehensively justified.”

1. Assuming that his rigid approach is the correct one, he proceeds to apply that Code:

“The stated purpose of this code is as follows:

3  Purpose
             As the Areas to which this Code applies will contain a mix to 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 law 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 …

(The bold type is his emphasis.)

1. There followed comments on Performance Criteria P1, P3, P13, P17, P20 and P22 and related Acceptable Solutions A1.3, A13.3, A17.1, A17.4, A20.1 and A20.4.  Mr Panaretos’ conclusion is that:

“Non-compliance with the above Code is critical as it changes the level of assessment from Code Assessable development to Impact Assessable Generally Inappropriate.  It also demonstrates, in conjunction with accompanying traffic and acoustic reports, the failure of the proposal to protect the adjoining property from unreasonable impacts.”

1. Although Mr Panaretos refers to other Codes, the only one that adds to the case made by him is the Transport, Access, Parking and Servicing Code, as to which he relies on Mr. Watson.  In my opinion, this last Code is not shown to be applicable in the present context of relatively small scale residential development. 

1. Summarising it, Mr Panaretos has identified what must be counted adverse impacts on the proposal’s neighbours and on Ms. Tod in particular.  Those have to be considered, however, in the context of a future for South Brisbane, and Brook Street in particular, calling for much more intensive development, which will necessarily change the character and amenity of the traditional “one living unit per parcel” of the area.  I do not think it is appropriate for the court either to welcome or regret that Ms. Geue’s brief may have been to crowd as much development on to the site as possible, rather than design something more spacious.  In the end, I agree with the conclusion of Mr. Kay, the Council's planning expert:

“The subject proposal relates to the development of a 3 unit Multiple Dwelling including the retention of an existing house on the site on land in the Low-medium Density Residential Area and the Low-medium Rise Residential Precinct of the South Brisbane Local Plan. This is a form of development contemplated by City Plan for this locality.

The proposed development does not conflict with provisions of the Strategic Plan.

The proposed development provides an outcome that does not compromise the Desired Environment Outcomes of the Scheme applicable to the Area in questions.

The development proposed satisfies the Acceptable Solutions for the relevant Code with minor exceptions.  The Acceptable Solutions are the preferred way of meeting the Performance Criteria.  In my opinion, the minor non-compliance with the Acceptable Solutions is not such that it would warrant refusal of the application as the relevant Performance Criteria are met.”

If “conflict” as referred to in the IPA provisions does exist, the departures from what might constitute strict compliance are so minor that planning grounds sufficient to justify a decision to approve the proposal notwithstanding have been demonstrated.

1. Similar issues have been considered in recent decision in the court to which Mr. Job referred me, namely Crane v. Brisbane City Council (2003) QPEC 025 and Gorman v. Brisbane City Council (4407 of 2002, 31 July 2003, Quirk DCJ).  In such scenarios, although judges are likely (as I do) to feel sympathy with adverse submitters advancing genuinely-held and most reasonable concerns, in the end the judgment to be made has to be a balancing of the conflicting considerations presented by the City Plan. 

1. The appeal ought to be dismissed.  However, before final orders are made, it is appropriate that the parties have an opportunity to consider these reasons and attempt to formulate an appropriate draft order.