Victor des Forges and Kangaroo Point Residents Association and v Brisbane City Council

THE PLANNING AND ENVIRONMENT COURT

[2001] QPEC 061

PARTIES: PETER DES FORGES Appellant
and
KANGAROO POINT RESIDENTS ASSOCIATION,
KENNETH FLECHER, PAVEL FORMAN,
JURINA FORMA, GAEL PHILLIPS, JAMES
SIMMERS, NERIDA SIMMERS, UNA CRAIG,
BARRY MARANTA, FLORENCE DYER,
DOUGLAS FORBES, VALENTINA ARISTON,
NICHOLAS LAWS, EDNA JOHNSON, JOHN
MOWBRAY, SANDRA DALY, DANIELLE DALY,
SEAN DALY, RAYMOND RIDDELL, BRADLEY
HOLMES AND VANESSA HOLMES Appellants
and
BRISBANE CITY COUNCIL Respondent
and
PRINCIPAL PROPERTIES PTY LTD

Co-Respondent

FILE NOS:

4297 of 2000 4310 of 2000
PROCEEDING: Appeals
DELIVERED ON: 21 September 2001
DELIVERED AT: Brisbane
JUDGE: Judge Brabazon Q.C.
ORDER: Appeals allowed. Order that the development approval
dated 22 September 2000 be set aside
CATCHWORDS: EASEMENTS – substantial interference - impact on
planning approval - Stokes v Hayes Pty Ltd & Willoughby
Municipal Council (1983) 6 APAR 274-275 – Finlayson v
Campbell SC NSW 4 September 1997 and Keefe v Amor
(1965) 1 QB 334 followed – Town Plan and City Plan –
Kangaroo Point Development Control Plan – meaning of
“best balance” – that not achieved – meaning of “balcony” –
impact on GFA.
COUNSEL: Mr R Bowie (solicitor) for the appellants
Mr E Morzone for the respondent
Mr P Lyons Q.C. and Mr M Rackemann for the co-
respondent
SOLICITORS: Minter Ellison for the appellants
Brisbane City Legal Practice for the respondent
Nicol Robertson Halletts for the co-respondent
REASONS FOR JUDGMENT

The Two Appeals

These two appeals have been heard together. They raise identical issues.
On 4 August 1999 Principal Properties made application to the Brisbane City
Council for a material change of use of land at Kangaroo Point, Brisbane. On 22
September 2000 the Council gave development approval, subject to conditions.
These appeals by objectors against the Council’s decision were filed on 25 October
2000. Negotiations between Principal Properties and the Council led to changes in
the proposal. A controversy about the extent of those changes had been dealt with
by this court, before the appeals came on for hearing. During the hearing, further
changes were permitted. The final proposal appears in the revised plans, Exhibit
40.
The site is an amalgamation of five parcels of land. The irregular shape of the land
is complicated by the presence of easements. The result is that three separate zones
are available for development – see Exhibit 42 Plans 1-3.
The land has an immediate frontage to the Brisbane River. Its topography is
irregular, and might be described as a cove, or a bowl, or a ampitheatre. That is, the
land rises away from the river bank and also at each side. Downstream, it is next to
three recently constructed houses – the Mowbray houses. Behind it, on the slope of
the hill, are two older apartment buildings, 24 and 40 Castlebar Street. Behind 40
Castlebar Street is a house, 112 Lambert Street, owned by Mr and Mrs Forman, who are appellants. Further along Lambert Street, on the upstream side of that
house, are three old houses – 102, 98 and 94. Below them, and immediately beside
the development are three recently constructed houses, owned by members of the
Daly family, also appellants. Then, as one reaches the riverbank on the upstream
side, there is an old apartment building at 44 O’Connell Street called the Owen Cox
building. All those properties appear on the above plans.
This proposal involves the construction of three residential towers and a fourth low
building containing a gymnasium and visitors car park, with a tennis court on the
flat roof. See Exhibit 42, Plan 5. As one looks towards the proposal, from the
river, Tower 1 is on the right (upstream), Tower 2 is in the middle and Tower 3 is
on the left (the downstream side, adjoining the Mowbray houses).
The towers are to be set back 20 metres from the highwater mark of the Brisbane
River, to allow a landscaped riparian zone. There will be a public walkway along
the edge of the river.
In this court, the appellants maintain that the proposal is an overdevelopment of the
site with unacceptable impacts on visual amenity, acoustic and visual privacy,
traffic safety, the easements on the land, and the criteria for development set out in
the planning documents. They contend that the excessive scale of the development
would have an undue impact upon the amenity of the area.
These reasons deal with the issues raised during the hearing of the appeals. One
question can be disposed of immediately. During the hearing, the amalgamated site
was treated as being one parcel of land. The intention is to establish a principal body corporate, once the towers are built, with subsidiary body corporates for each
of the three buildings. Apart from the towers, the land will be common property. It
is accepted that the development will take place on one parcel of land.
Section 4.1.50(2) of the Integrated Planning Act says that it is for Principal
Properties to establish that the appeals against the development permit should be
dismissed, and that its proposal should be approved. The appeal is by way of
hearing anew. That is, the court makes a fresh decision on the merits of the case.
Here, as in most cases, the court has the benefit of more extensive evidence
compared to that put before Council. The court’s duty is a traditional one, to give
an impartial and reasoned decision on the evidence. The court is not a town
planning authority, such as the Council. Its task is to interpret and accept the town
planning documents and principles that have been adopted, and apply them to this
land.
Even though the appeal is by way of a fresh hearing, it does not follow that the
town planning scheme in force at the time the appeal is decided is to be applied.
Rather, s.4.1.52(2) of IPA provides that the court must decide the appeal based on
the laws and policies applying when the application was made, though it may give
weight to any new laws and policies that the court considers appropriate.
The Easements
Several easements provide barriers to Principal Properties’ use of its land. They are
graphically illustrated in Plan 1 to Mr McFarlane’s statement – Exhibit 42.
Principal Properties maintains that its current proposal will duly observe the
constraints demanded by those easements. Some residents entitled to the easements
object to the proposal. It is convenient to deal first with the Daly easement. It runs
from Lambert Street to the edge of the Brisbane river, passing in front of the three
Daly houses, 102A, 104, and 106 Lambert Street.
When these appeals started, it was made clear that the Daly family objected to the
developer’s plans, as they then were. Those plans would have seen the level of the
easement altered, opposite their houses. Those objections resulted in the latest
amendment to the proposed development, allowed on 15 June. The details of the
current proposal can be seen in Exhibit 40, Plan R.
The Daly easement was created in 1948. Members of the Gordon family then
owned the Daly land, and the subject land. Reciprocal easements were granted.
They included Easement B. See the plan forming part of Exhibit 29. The Daly’s
rights over Principal Properties’ land derive from the 1948 grant:
“The following easement ... for and free right and liberty ... as registered proprietor ..., their tenants, workmen, servants or agents and all other persons authorised by (them) to go pass and re-pass along over and upon the said servient tenement with or without horses, carts, motor cars and other vehicles ... provided that (they) will at all times use the said right of way in such a manner as not to cause any nuisance to the registered proprietor and others lawfully authorised by them to use the same and will at all times contribute one half of the costs of upkeep of the said servient tenement ...”
The plan shows that the easement runs from Lambert Street to the bank of the
Brisbane River. The current proposal will leave the existing easement undisturbed
until it reaches the end of the three Daly properties. At present, the easement
continues over more or less level ground until it reaches the edge of the river. That ground is level because, probably in the 1980s, the soil was built up well above its
natural level. The result is that the easement continues until it reaches a retaining
wall several metres high at the riverbank. Presently, the easement runs over part of
the front garden of what is known as the Walsh land (recently acquired by Principal
Properties). The Walsh land separates the Daly houses from the riverbank.
If approved, the present development proposal will mean the erection of a vertical
retaining wall along the boundary of the Walsh land. The level of the easement will
then be altered as it runs along the Walsh boundary, as it will slope down to join the
public walkway which is proposed along the edge of the river. It would appear to
be lowered by about 3m at the point where it reaches the river. This is illustrated in
Exhibit 40, Plan R.
The Dalys object, saying that the lowering of the levels, and the path to the water’s
edge, will be an unacceptable interference with their rights to the easement. They
say that they will lose their elevated outlook over the river and that the grassed
slope (as proposed on Plan R) will be unacceptably slippery and dangerous. It is
also said that there will be easier access for criminals who might break into their
houses (they have already had some difficulties of that kind).
It is submitted for Principal Properties that any difficulties with the easement are
not matters for this court. Of course, any question of alterations to the easement, or
issues of abandonment, are for the Supreme Court – see s.181 of the Property Law
Act. At the same time, it would be wrong of this court to ignore the impact on an
easement caused by a development approval. The correct approach that can be seen
in Stokes v Hayes Pty Ltd & Willoughby Municipal Council (1983) 6 APAR 274- 275. There, an assessor of the Land and Environment Court of New South Wales,
in dealing with an easement over land sought to be developed, said:
“(the developer) did not seek to disprove any right of way entitlements, but submitted that such were not matters which should concern either the Council or this court. It was suggested to be a matter for private action between the parties. With respect I do not accept that argument. I think it is a material circumstance of the development site as to how it may be affected by easements of one kind or another.”
The principle to be applied is not in doubt. Those entitled to an easement have a
private right over the servient land which the law will protect. The extent of that
protection is shown in the many reported cases about interference with easement
rights, and particularly rights of way. Two quotations from earlier cases illustrate
the principle:
“whether an obstruction in right of way is actionable or not is a question of degree to be decided in the light of the circumstances of each case in which it arises. The law, I think, is clear. In the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference of the enjoyment of the right of way ... the questions here are whether the existing gate does constitute, and whether the threatened fence would have constituted, such an obstruction as to amount to a real and substantial interference with the easement”. Powell v Langdon 1944 (45) SR (NSW) 136 at 139.
“... it is sometimes thought that the grant of a right of way in respect of every part of a defined area involves the proposition that the grantee can object to anything on any part of the area which would obstruct passage over that part. This is a wrong understanding of the law. Assuming a right of way of a particular quality over an area of land, it will extend to every part of the area, as a matter, at least, of theory. But a right of way is not a right absolutely to restrict the user of the area by the owner thereof. The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required ...” Keefe v Amor 1965 1QB 334 and 347.
Recent decisions adopt those principles. Two decisions of Young J, of the New
South Wales Supreme Court, are notable. See Butler v Muddle 6BPR 97532,
adopting an earlier statement from Zenere v Leate 1BPR 97029:
“The dominant owner has only such rights as are to be found expressly or by necessary implications in the terms of the grant. The servient owner has all the rights of an owner except those which are inconsistent with the exercise by the dominant owner of the rights expressly or by necessary implication conferred on him by the terms of the grant.
“The prime thrust is that the land is still land belonging to the servient owner. The only rights that the dominant owner has are those expressly granted to him, which he has to use in a way that is necessary and thus in a reasonable way. It is not a situation that the dominant tenement can dictate by saying what he wants and compelling the servient owner to comply with his wishes”.
See also Young J’s later decision in Finlayson v Campbell 1997 (NSW Conv.R 55-
825).
It is clear, therefore, that a servient owner may alter the level of the surface of the
easement, provided that does not amount to a substantial interference with the
dominant owners rights of enjoyment. So much appears from the recent decision in
Archer v Timpar Nominees Pty Ltd 1999 (WASC) 20. There, the defendant
lowered the level of a right of way. It was held that it could do so, so long as it did
not impede the plaintiff’s full and free access to its land from the right of way. The
plaintiff succeeded, because that access was unreasonably interfered with.
Some other facts should be kept in mind. For a long time now, the path from the
Daly’s driveway onto this easement has been a rough one. A disabled person, or an
unsteady person, would have difficulty making use of it. Secondly, the members
of the Daly family have been partly mistaken about their rights over the servient
land. They expected that the easement would prejudice the ability of the servient owner to develop the land. However, the above statements in principle show that
provided the Daly’s rights are observed, development might proceed. Thirdly, the
proposal here will bring some benefits with it, even though they may not be benefits
personally appreciated by the Dalys. That is, practical access will be given to the
new public path at the edge of the river and that is likely to lead, in the near future,
to easier access upstream and downstream, including access to ferries. On balance,
it can be seen that the present proposal would lead to an improvement in the use and
value of the easement to both current and future owners of the Daly properties.
It is true that the quite steeply sloping pathway will be unusable by disabled people
and perhaps by the elderly. That is no worse than the present position. All factors
considered, it is apparent that the proposed alterations do not amount to a
substantial interference with the enjoyment of this easement.
Objections by those entitled to other easements can be dealt with shortly. First, as
Plan 1 shows, the owner of 112 Lambert Street is entitled to an easement which
leads to the lower edge of the neighbouring property, 40 Castlebar Street. At the
present time, the benefit of that easement is used by Mr Forman, as the owner of
112 Lambert Street.
As Exhibit 40 shows, the developer intends to excavate the land so that a short
tunnel might be created, to allow refuse vehicles to turn into it. Once the tunnel is
built, its roof will be covered with soil. In effect, the enjoyment of the easement
will not be affected, apart from a short period during construction.
Mr Forman, and any future owners of No 112, are entitled to rights of way over the
land. They are not entitled to stop operations underneath the land. See, for
example, the decision in Williams v O’Brien (1886) NZLR 5 SC 63. As the
headnote puts it, “An easement of right of way does not carry with it the right to sue
in respect of an excavation which does not interrupt free passage over the surface.”
Complaint is also made on behalf of the owners of 40 Castlebar Street. They are
entitled to the access easement leading from their property (a small block of units)
to Castlebar Street. The easement is narrower than the proposed two-lane driveway.
The proposed development, containing 70 units, is predicted to produce a vehicle
movement every one or two minutes, during the busy times of the day. The
proposed driveway will cater for the additional vehicles entering or leaving the
development. It is said that the owners of 40 Castlebar Street will be forced to
travel outside the limits of their easement to reach Castlebar Street, because of the
proposed two-way traffic. They also say that the increase in traffic will amount to
a substantial interference with their rights. At present, they only have to compete
with a few other vehicles a day.
It is difficult to see that their enjoyment of their easement will be interfered with, as
they will be allowed to drive on the ground immediately beside their easement. An
invitation to use the wider driveway cannot amount to an interference with their
rights.
The effect of the evidence of Mr Holland and Mr Mogg is that the peak traffic flows
will not amount to any substantial interference with their passing to and from Castlebar Street and their own garages. That should be accepted. There will be no
substantial interference with their easement.
As the treatment of the easements is no obstacle to the amended development
proposal it is necessary to turn to the town planning issues.
The Planning Schemes
When the application was made the 1987 Town Plan was in force. It had become a
transitional scheme under the provisions of IPA. Then, in October 2000, the new
City Plan replaced the Town Plan. This land, at Kangaroo Point, has been the
subject of detailed planning provisions under both plans. The Town Plan dealt with
the land according to the Kangaroo Point Peninsula Development Control Plan (the
DCP). Under the City Plan, the land falls within the High Density Residential Area
and the Kangaroo Point Peninsular Local Plan. Those documents contain the
planning provisions dealing with this land. The City Plan provisions have not made
any great difference – reference will be made to some differences, below.
These town planning documents are largely the work of town planners. They are
not the work of parliamentary counsel who have to consider a piece of legislation.
If there are any ambiguities or inconsistencies, it is necessary to read the documents
as a whole to discover their planning intent. They should be read and applied in a
practical commonsense way, rather than in an overly technical way. They should
be interpreted in a way which will best achieve their evident purpose.
As this appeal concerns the application of a transitional scheme, s.4.4(5A) of the
repealed Planning and Environment Act continues in force. That is to say, even if a
proposal for development conflicts with a strategic plan, or a DCP, it might still be
approved if it has sufficient planning merit to justify the application, despite the
conflict. In that case, any such conflict should be plainly identified – that approach
can only be applied if the conflict is plain.
It was submitted for Principal Properties that the provisions of the DCP, being part
of the 1987 Town Plan, should be given considerable weight, but that they are not
to be understood as being prescriptive or inflexible in any respect. That is so, it was
submitted, because of the remarks of the judges of the Court of Appeal in Vynotas
Pty Ltd v Brisbane City Council (2001) 112 LGERA 206. There, after examining
certain of the transitional provisions, Mr Justice Davies said this:
“In any event the scheme of IPA appears to be that, so far as it applies to development and use of premises, a transitional planning scheme no longer has binding force but is of persuasive relevance only. Thus s.2.1.23 provides that a local planning instrument, which includes a planning scheme, may not prohibit development on, or the use of premises; and more specifically at s.6.1.2(3) provides that a prohibited use in a formal planning scheme is taken to be no more than an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. These provisions relate only to prohibitions but as prohibitions in formal planning schemes are now no more than policy statements, it is unlikely that the legislature intended the other provisions in such schemes to continue to have binding effect upon development applications under IPA.
It is, however, unnecessary to decide this last point ...”

His Honour then referred also to s.6.1.2.(1) of IPA, “despite the repeal of (the P&E
Act) each former planning scheme continues to have effect in the local government
area for which it was made, subject to subsections (2) and (3)”.
Mr Justice Pincus put the matter this way:
“...apart from that it does not appear to me that the legislature intended, by the language used in Chapter 6 of IPA, to make the provisions of transitional planning schemes absolutely binding, in the decision of development applications.
On the other hand it is important to note that the 1997 Act did not by Chapter 6 create a planless situation. Citizens expect reasonable stability in the law’s treatment of permitted land use. It would be unfortunate if Chapter 6 were used to defeat the reasonable expectations of those who have relied on, and perhaps expended substantial sums of money on the fate of, existing planning arrangements. The degree of flexibility which Chapter 6 contemplates does not justify failure to give considerable weight to planning arrangements, as they existed when Chapter 6 commenced, so far as such arrangements are required to be applied by s.6.1.29(3).”
Mr Justice Thomas agreed with both of his colleagues.
Parts of this DCP say that they have mandatory effect. However, as appears below,
it will make no difference whether or not they are now persuasive only.
The Planning Documents
Much attention was paid to the Kangaroo Point DCP. In para 1.1 it commences by
emphasising the suitability of that planning area for high intensity residential
development.
The maximum intensity of development has been limited to R6, the second highest
intensity for residential development in the City. The nature of R6 development is
explained in s.7.3.1 of the Town Plan.
“...The residential development area R6 is intended to facilitate and encourage the development of high rise apartment buildings. It is intended to consolidate high rise development areas in appropriate locations. This will avoid the undesirable effects of a dispersion of high rise apartments amongst lower scale forms of development.
... There is however an expectation that in higher amenity areas, high rise apartment buildings will predominate ... No height limit is placed on residential buildings in an R6 area. Particular attention will, however, need to be given to environmental and amenity matters such as sun penetration, shadowing, air circulation views, aspects and traffic generation for the benefit of existing and future residents.
Section 1.1 of the DCP says that the reason Kangaroo Point development has been
limited to R6 intensity relates not to amenity impacts but rather to vehicular access
considerations. Paragraph 1.1 states:
“The greatest constraint on residential development is, however, the restricted vehicle access from the peninsular to the arterial road system ... The delays people experience when driving out of the area will increase as redevelopment continues. In order to moderate these delays, the maximum intensity of the residential development has been limited to R6.”
The introduction to the DCP therefore emphasises that the area within which the
site falls is an area which is seen as being ideal for high intensity residential
development in accordance with the R6 designation. It was concern about access
issues which caused the planners to stop short of designating the very highest
intensity designation of R7. Under the City Plan, the entire area is now included in
the High Density Residential Area, the highest intensity residential area
designation.
The expectations in relation to this area, which should be understood by residents,
are that it will be redeveloped for high intensity apartment buildings over time.
That is in fact what has been occurring in Kangaroo Point, in line with the
objectives of the DCP. The area is one which is in transition to high density
residential development. High rise buildings are inevitable.
The aims of the DCP are stated more fully in s.1.3(d). One of those aims is to
“enhance and take full advantage of the unique characteristics of the area”. This is
consistent with the overall aim of the Kangaroo Point DCP to achieve a high
intensity development to capitalise upon these unique characteristics.
The first of the more particular statements of intent underlines the intention to
facilitate consolidation of the city and to attract people to live in the area (sub-
paragraph (e)). This development would further that aim.
Sub-paragraph (g) states that an intention is to:
“...Enable as many as possible to enjoy the spectacular views – by ensuring development will not block the outlook of those crossing the Story Bridge – by protecting vistas for those moving about the area, and subject to other objectives – recognising the desire residents have for views from apartments.”
That statement of intent shows a priority. In the course of achieving high intensity
residential development, the DCP seeks to ensure that development will not block
the outlook of those crossing the Story Bridge. It also seeks to protect vistas for
those moving in the area. Insofar as the views of residents are concerned however,
words such as “ensuring” and “protecting” are not used. Instead, it is provided that
“subject to other objectives” the desire for views from apartments will be
recognised. It is apparent that aims about the views of residents are more qualified.
It can be accepted that the reference to “residents” is not limited to existing
residents. The DCP envisages major redevelopment of Kangaroo Point to take full
advantage of its suitability for high intensity residential development. It envisages
that high rise development will occur on sites, such as the subject site, to take advantage of the views to attract people to the area. This proposal leaves view
corridors for other residents who are more remote from the river. The sufficiency
of those corridors is a major issue here.
In these respects, the planning intent has remained largely unchanged under the
City Plan. Like most local plans, the Kangaroo Point Peninsula Local Plan is
expressed in more abbreviated terms than the equivalent DCP under the Town Plan.
The development principles for the local plan area are set out in s.2. The first
development principle is that:
“The Kangaroo Point Peninsula is to be a convenient residential area in which people live at higher densities than in most other parts of the city.”
Other development principles relate to reduced reliance on cars (2.2), traffic
movement objectives (2.3), views (2.4 and 2.5), heritage matters (2.6) and
responsiveness of design (2.7). Insofar as views are concerned, development
principle 2.4 states “views to and from the Story Bridge are to be protected.” On
the other hand, views for residents are neither ensured nor protected. The
development principle (2.5) merely states that: “views are to be available to most
residents”.
There is an intention to give greater opportunity for the community at large to enjoy
the extensive river frontages to and provide the pedestrian and transport links along
it. This serves both to improve public amenity and to reduce reliance on cars as a
means of transport. Accordingly, s.1.3(i) and (j) of the DCP say that the intentions
are to:
“(i) provide for the public enjoyment of the extensive river frontage – by completing the riverside walkway from the Kangaroo Point cliffs to Mowbray Park;
(j) promote a preference for walking and calm traffic, to improve safety and local amenity, to minimise the unnecessary use of cars and the extent to which extraneous traffic circulates within the area – by improving the permeability of the area with a network of walkways connecting the ferry terminal, a community precinct and the “town square” of Dockside.”
Similarly, Development Principle 2.2 of the Local Plan under the City Plan
provides:
“2.2 Residents of the area should have reduced reliance on cars as a network of bikeways and walkways throughout the area provides convenient connections to ferry terminals and links to a wider network of bikeways and walkways. A riverside bikeway/walkway extends from the Kangaroo Point Cliffs to Mowbray Park. The locality includes continuous public spaces that are safe, comfortable and well landscaped.”
The achievement of those aims relies on the development of riverfront land. The
present proposal is consistent with those aims. It would amalgamate a number of
riverfront lots and develop them, while providing a 20 metre landscaped riparian
amenity within which there would be a public walkway. The proposal would
provide a public link through the amalgamated site from the walkway to Castlebar
Street – see Plan R.
Both the DCP and the Local Plan contain codes which give developers more
specific guidance in relation to design issues. Section 1.5 of the DCP provides that:
“Development throughout the planned area is to be in accordance with the
development code of s.3.0.”
In s.1.3(n) the aim of the DCP is stated to be:
“Have development achieve the best balance in the way it responds to its site, adjoining development, the area of the plan and the city and the environment as a whole – by application of the development code.”
Further, pursuant to s.1.5, it is said that the development code under the DCP does a
number of things. One is stated as follows:
“The Development Code: ...

· recognizes that the measures needed to satisfy one objective may
conflict with those needed to satisfy another.

· aims to achieve the optimum balance in the way the various
design objectives are achieved;
· indicates the objectives likely to be of most importance and the
balances and compromises which may be appropriate;
· acknowledges that the design objectives can often be achieved
in alternative ways.
In certain circumstances, the achievement of the design objectives of the Development Code may preclude the development of a site to the maximum allowable gross floor area.” (emphasis added)

The reference to “best balance” and “optimum balance” does not mean that a
developer must achieve perfection or select the best alternative in order to satisfy
the DCP. Suggestions that Principal Properties might have arrived at a better result
(particularly from the point of view of the objectors) is not necessarily to the point.
One of the important aims of town planning is to provide reasonable expectations
for residents and developers alike and to create criteria against which the
acceptability of a proposal may be judged. A settled approach to development in
general, is to reject the idea that a proposal which is acceptable against a detailed
development code, can nevertheless be found to be unacceptable because there
might be some other complying design which a particular person or group regards
as being superior. As this court said in GBW Developments Pty Ltd v Brisbane City
Council 199 QPELR 359 in dealing with the Kangaroo Point DCP:
“It may be that, from the (objector) appellant’s perspective, a better result might have been obtained but that in itself is not a sufficient reason for refusing the application”.
That is, it is undesirable that a developer or an objector has to estimate, in advance,
what the ultimate decision maker might or might not regard as perfection. The
level of uncertainty and subjectivity introduced by such an approach cannot be
intended by a reference to “best balance”.
The DCP says that the “best balance” from a planning point of view is achieved “by
application of the development code”. It is the application of the development code
which is the mechanism whereby the desired planning outcome is to be achieved.
Similarly, the DCP states that it is the development code which aims to achieve an
“optimum balance”. The provisions say that the appropriate planning outcome in
relation to a given proposal is achieved by having due regard to the development
code. Similarly, s.1.3(m) seeks to ensure that development forms public spaces
which are “continuous, sensible, legible, responsible and vital” by application of the
development code. A developer does not have to discover some unique solution for
each site. Rather, the proposed solution has to respect all the requirements of the
DCP – especially the development code.
The equivalent provision of the Kangaroo Point Peninsula Local Plan under the
City Plan no longer refers to “best balance” or “optimum balance” but simply
provides in s.2.7 that:
“Proposals are to be responsive to their site, adjoining development,
locality and the city and the environment as a whole.”
and that, for the residential precinct in which this site is located that:
“This precinct is intended for high density residential use in accordance with the Kangaroo Point Peninsula Local Plan Code and design criteria of the Residential Design – High Density Code”.
The Development Code - Overview
Section 3.1 sets out the components of the Development Code and the way that they
relate to each other. There are twenty “elements” to the Development Code. Within
each of the elements there are (in order of importance):

(a) design objectives for that element, to be considered;
(b) mandatory requirements for certain elements. It is not every
requirement which is stated to be a “mandatory requirement” nor
does each element contain a “mandatory requirement”. The
Development Code states that mandatory requirements “will not be
varied unless a variation is specifically provided for within the
Code”.

(c) requirements, which may be varied, either where the circumstances
warrant or this court is satisfied that the relevant design objectives
can be achieved suitably in an alternative manner.

(d) desirable solutions. They should be achieved unless the court agrees
that the design objective can be satisfied in an alternative manner or
where to achieve the desirable solution would conflict with another
objective having greater importance. As with the requirements, the
desirable solutions can therefore be departed from in some
circumstances even where the consequence is that the design
objective will not be satisfied – so long as they can be satisfied
suitably in an alternative manner.

(e) considerations, which provide further information.

The development code is not, in itself, an inflexible document, apart from its
reference to mandatory requirements. It seeks to provide guidance by setting out
various objectives and indicating ways in which they may be met. It contemplates
that stated requirements and desirable solutions might be departed from even if the
departure would lead to a non-fulfilment of the relevant design objective. The Code
contemplates that some design objectives will have “greater importance” than
others and that, perhaps, not all design objectives will be satisfied all the time. The
intention clearly enough is that all design objectives are to be considered, and that
usually they will be satisfied, if only in a suitable, alternative way.
An assessment of the proposal against the various elements of the Development
Code should now be considered. It will be helpful to consider in turn its provisions,
as they apply to this development.
Site Area and Frontage (3.2)
The objective is to ensure that sites are large enough for pleasing, neighbourly and
functional development in accordance with the remainder of the Code.
This is a significant site, because of its size. Its development will affect Kangaroo
Point as a whole. It can be expected that any development will last up to 50 years.
In this case, the developer proposes to amalgamate a number of lots, previously
held in separate ownership, into a relatively large site, which is some ten times that
of the minimum area of 840m2. It also complies with the frontage requirements. It
has a frontage of 34.19m to Castlebar Street and 10.52m to Lambert Street (though the frontage to Lambert Street is unusable), and all vehicle access is via Castlebar
Street.
The frontage does not include the riverbank (see definitions of “alignment” and
“frontage”, which require a road frontage). As the frontage to Castlebar Street
would largely face a wall beside the tennis court (see Exhibit 67) it is hardly an
impressive frontage. However, that is a minor consideration, overall. It is really a
consequence of the constraints of the site.
Site Cover and Site Features (3.3)
There are five design objectives in 3.3.1, only the first of which has any relevance
to the appeal. There are no mandatory requirements. The relevant objective is
supported by the three “requirements” stated in 3.3.2. Only (a) is relevant – “Site
cover is not to exceed 40% of the area of the site (where the calculation of site
cover excludes that part of the site covered by projections such as eaves, awnings,
balconies, or the like).”
A point was sought to be made by the appellants in relation to Planning Policy 7.10
which relates to site cover for land in the Residential B zone with an RDA of R6 or
R7. The policy speaks of a general expectation that high rise development will
warrant a lower site cover (generally not exceeding 15%) to minimize the impact of
building bulk and scale. See Exhibit 10A.
That policy is irrelevant to the assessment of a proposal pursuant to the
Development Code:

(a) the Policy does not, on its face, purport to apply to the DCP area;
(b) the DCP does not refer to the Policy (compare 3.20.2(a) of the
Development Code which refers to Planning Policy 18.06);

(c) the DCP, unlike the Town Plan, has its own provisions in relation to
site cover – so the reason for the policy does not apply in the case of
the DCP.

(d) Policy 7.10 was adopted on 23 June 1987. The current DCP was
substantially later, apparently intended to supersede any effect the
policy might have had.

It is common ground that, however measured, the site cover of these proposed
buildings does not exceed 40% of the land. The highest estimate is 36%, arrived at
by Mr Robinson and Mr Matovic. They are correct, as a matter of definition, to
include the tennis court building and the podiums in the calculation. In practical
terms, the 860m2 of landscaped or terraced areas, which are presented as outdoor
areas and spaces around the buildings, do not have a real impact on the design
objectives.
On the other hand, it should be kept in mind that because of the constraints of the
irregular site, the three towers are placed on land which is less than the total area of
the site. That is to say, the tennis court building is only 1½ stories high, while the
20m riparian area is open space.
The requirement in 3.3.2(a) should be noted – the calculation of site cover excludes
that part of the site covered by “projections such as eaves, awnings, balconies or the
like”. It seems that the architects have based their calculation of site cover on the whole of the footprint of the buildings – that is, the footprint made by the outside
columns, and not by the smaller area of the weatherproof walls of the buildings.
That inclusion of the balconies needs to be considered in relation to the issue of
gross floor area, considered below.
Intensity of Development (3.4)
There are two design objectives:

“(a) to achieve the aims of the Plan in a way which results in a quality
residential environment;
(b) to encourage the amalgamation of sites and the better
development possible on larger sites, while allowing higher
intensities on larger sites”.

Those design objectives are supported by two relevant mandatory requirements –
(b) and (d). They allow a gross floor area of 1.25m2 for each square metre of site
area for sites exceeding 3,000m2 in area and an additional bonus of 0.25m2 for sites
providing public pedestrian access way in accordance with s.3.18.2 and 3.19.2 of
the Development Code. (Section 3.18.2 relates to a requirement that a developer
provide a public access along the frontage of the river whereas s.3.19.2 refers to the
voluntary provision of access linkages in the “general vicinity” of the three
locations shown on Plan 2 of the DCP).

It was submitted for Principal Properties, that the proposed development is
encouraged by this element of the DCP. It does achieve amalgamation of a number
of separate and smaller parcels of land as encouraged by the DCP. One criticism of the proposal, made by the appellants, is that in so doing the developer will be able
to build Tower 1 on the Walsh land. The DCP seeks to realise the development
potential of the Kangaroo Point area and to obtain higher quality residential
development by the amalgamation of sites. It encourages this by permitting higher
intensities on larger sites. Riverfront sites are also eligible for an additional bonus
to allow an even higher level of intensity if a pedestrian access is provided. In
those circumstances, the permissible GFA is calculated on the area of the site before
the deduction of the walkway. So, the DCP envisages development on the retained
land at a plot ratio of more than 1.5 times the area of the retained riverfront land. In
that context, to the extent that the development proposal, by amalgamation and
integrated development, unlocks the potential of the Walsh property, it is something
which is encouraged by the DCP.
Here, the proposed intensity of development at 1.5m2 for every 1m2 of site area is
made possible by the DCP. The DCP is structured in a way which allows higher
intensities for amalgamated sites and for sites which can provide public access in
accordance with s.3.18.2 and 3.19.2. (The Local Plan Code under the City Plan
continues the approach (s.5.1-A2.2)).
While the bonus may be expressed in discretionary terms, the reference to Plan 2 of
the DCP shows that the subject site is, in practice, the only site which is capable of
providing the intended Castlebar Street pedestrian linkage to the riverwalk. The
riverwalk is shown as going through the area which is now the subject of the
Mowbray residences, which have been developed without providing such an access.
Whilst the granting of a bonus necessarily allows for larger development with
greater bulk and potential to impact on views, contrary to the wishes of the
objectors, the DCP in providing bonuses gives priority to the community benefits to
be obtained by amalgamation and the provision of public walkways rather than to
any concept of restricting the intensity of development for riverfront sites for the
benefit of those more remote from the river.
The amalgamation does facilitate the development of the site in an integrated way
and has the benefits of which Professor Brannock spoke - the proposal does set out
to achieve a high quality residential environment, on a difficult site. The design
does integrate the building, landscaping and car parking – at least from the new
residents’ point of view. The development of three distinct towers allows the
developer to offer a product mix which is responsive to different needs of the
community, from those looking for prestigious one apartment per floor
accommodation (Tower 1) to those in the market for the different product mix
provided by the units in the other towers. It was assumed, and no doubt rightly so,
that the project would be attractive in the market place.
There were two criticisms made of the proposed pedestrian access-ways, as part of
the attack on the granting of the bonus. One related to the RL 3.5 proposed at the
corner of the Mowbray residence. That complaint does not raise any inconsistency
with the DCP or, indeed, any other provision of the Town Plan. The level of Mr
Mowbray’s house and pool are elevated well above the riverwalk (see Exhibit 64,
Exhibit 6, Elsewhere, below Shaftston House, and in front of the Dundrenan
approval downstream, the RL’s vary. There is no difficulty with the RL 3.5.
The second criticism related to lack of disabled access at the remainder of Castlebar
Street. The criticism is misplaced. The DCP map is clear (as is Map A of the Local
Plan in the City Plan) that the bonus is available for a link through the site to the
street frontage. The pedestrian link is not shown as extending up Castlebar Street.
There is no suggestion that a development must construct disabled access in
Castlebar Street (or other parts of Kangaroo Point) in order to be eligible for the
bonus. The access will be available to the elderly and disabled residents and
visitors to the land and those elderly or disabled persons who arrive at Castlebar
Street other than by walking from more remote places. In any case, the topography
of the area does not allow disabled access at every part of the riverside walkway.
The town planners and architects assumed that 3.4.2(d) allowed one bonus of
0.25m2. The lawyers (though not Mr Bowie) were inclined to suggest that two
bonuses might be available – one for the riverside walkway, and one for the
pedestrian access to it. While the language of (d), combined with sub-sections
3.18.2 and 3.19.2 is far from clear, the purpose is clear enough – to reward the
volunteer who provides the pedestrian access to the walkway, with one bonus of
0.25m2.
The site area is 8090m2. With 1.5m2 of floor area being allowed for each 1m2 of
the site, there is a permitted GFA of 12,135m2.
Mr Michael Standley is the architect responsible for the current plans. As his first
report and his evidence reveal, his first calculations showed that the permitted GFA
was slightly exceeded. Then, after the plans were altered to accommodate the Daly
easement, and for certain other changes, he re-calculated the floor areas which would conform to the limit of 12,135m2. See his table, Exhibit 40. As he puts it,
“the plans are not dimensioned, however if the plans were altered to conform with
this table there would be no observable difference to the plans or a finished building
constructed in accordance with them.”
He meant that the external dimensions of the outer columns of the building would
not change, but that the floor areas inside the waterproof walls of the building
would contract slightly in area. As can be seen from the plans and the computer-
generated elevations, each building is surrounded by strong columns, even where
there are areas of blank wall, rather than balconies, inside that framework. Note the
above reference to the architects’ measurements of site cover, where the footprint of
the buildings was taken to be around the perimeter of the columns.
Mr Standley deliberately excluded two areas from his GFA calculation. They are
the gymnasium inside the tennis court building, and the entertainment room and
gym on level 1 of Tower 1. Together those areas amount to about 360m2. It is
necessary to take into account the definitions of “gross floor area” and “landscape
and recreation area”, which appear in the Town Plan:
“GROSS FLOOR AREA” with respect to a building, planning unit or development for some purpose means the sum of the plan areas of all floor levels (inclusive of the plan area of all walls, windows, columns, elevator shafts, and the plan area of all internal and external stairs, landings, ramps, escalators, or other means of access between levels, at or between each level) in the building, in all buildings contained in the planning unit or all buildings to which that development relates, as the case may be, excluding –

(a)

the area (inclusive of the plan area of all walls and columns) of Any lift motor room or air conditioning or other mechanical or electrical plant and equipment room;
(b) the area of any private balcony, whether roofed or not;
(c) the area of any roof deck;
(d) the area of any lobby at ground storey level;

(e)

the areas (inclusive of the plan area of all walls and columns) at any ground storey of all rooms associated with landscape and recreation area in relation to development for some residential purpose to the extent that the sum of all such areas does not exceed five per centum of the landscape and recreation area provided within the site;
(f) the areas (inclusive of the plan area of all walls and columns) –

(i)

in the Central Business Zone, at or below ground storey level;
(ii) in any other zone, at any level,
of all space used or intended for use for the parking of motor vehicles where that parking of motor vehicles is incidental to and necessarily associated with use of some premises;
For the purpose of this definition an outdoor space which is situated in
or on a building and which is –
(A) in the nature of a projection from the side of a building, whether
or not such projection is cantilevered or supported partially by posts, braces or columns, shall be deemed to constitute a balcony;

(B) situated wholly and immediately above an enclosed storey or a storey used for car parking shall be deemed to constitute a roof deck. (emphasis added)
“LANDSCAPE AND RECREATION AREA”, with respect to a development for some residential purpose, means so much of the site for that development and any structural decks of buildings on the site as is provided or used as any one o more of –
(a) lawn, garden, rockery, pathway. Hedge or other landscaping;
(b) a swimming pool;
(c) a tennis court;
(d) a children’s play area, sand pit or the like; and

(e)

an entertainment or recreation area, whether or not it includes barbecues, refreshment tables or the like,
and which is not also provided or used as an area for –
(i) the parking or standing of a vehicle;

(ii) the passage of a vehicle;
(iii) clothes drying;
(iv) a refuse bin pad or shelter;
(v) an incinerator;
(vi) vehicle and gardening maintenance; or
(vii) home handyman facilities.

It is submitted for Principal Properties that clause (e) means that the above spaces
should be excluded from the GFA calculation as they are recreation areas. The
starting point is the definition of “landscape and recreation area”. It refers to parts
of “the site” for development. The word “site” is itself defined, to refer to the land that is being developed. Overall, it seems clear enough that the definition of
“landscape and recreation area” is meant to refer to outdoor areas.
One then turns to sub-paras to para (e) of the definition of “gross floor area”. The
exclusion does not refer to recreation areas. Rather, it refers to “... all rooms
associated with landscape and recreation area ...”. For example, a changing room
for the tennis court or swimming pool might be included. There seems no reason to
exclude the gym and indoor space – it is not enough just to call it an “entertainment
room”. The 360m2 must be included.
There was a controversy at the hearing about the size of the balconies on the three
towers. In particular, it can be seen from a typical floor plan of Tower 1 that the
area of the balconies exceeds the internal living areas. On each floor, the balconies
are about 190m2 in area, while the units are about 160m2. In all, over the three
towers, balconies take up about one-third of the area of the built form. As Mr
Matovic described them, they are “very generous” in area.
Before this application was made, a previous definition of “gross floor area”
included balconies that exceeded a certain area:
“the area of that part of any private balcony, whether roofed or not, directly accessible only from one dwelling unit which is within 2.5m of the back wall of that balcony to the extent that the sum of all such areas does not exceed 15% of what would be the gross floor area but for this paragraph.”
That definition was then amended to remove a private balcony from the calculation.
The present definition was also enlarged by the addition of the last paragraph,
which would seem to emphasize the concept of a balcony, by deeming a certain structure to constitute a balcony – that is, “an outdoor space which is situated in or
on a building and which is ... in the nature of a projection on the side of a building
whether or not such projection is cantilevered or supported partially by posts,
column braces or columns ...”. (Note the similar provision in the City Plan)
Section 3.14, (Outdoor Living and Recreation Space), deals with a relevant design
objective in 3.14.1:
“To have private outdoor living areas large enough for outdoor eating and passive recreational pursuits so residents can enjoy the city’s sub-tropical climate.”
A requirement, in 3.14.2(a), is that units should have (in this case) a balcony of not
less than 10 square metres in area and 2.5 metres in width.
While that is a minimum balcony area, it is not necessarily sufficient especially in
the present market place for high quality units. There has been a noticeable trend in
recent times, particularly in high quality residential developments, for the provision
of larger balconies. It can be accepted that the demand is consistent with good town
planning, because of the desirability of private outdoor spaces to take advantage of
the climate, which encourages their use for most of the year. The repeal of the
above provision, which included large balconies in the calculation of GFA, has
encouraged that trend. For these towers, it can also be accepted that small
balconies would not be attractive in the market. (Illustrations of the sizes of
balconies in other recent buildings can be seen in Exhibit 65)
The word “balcony” is not defined. No reference was made to any definition of it,
in a similar town planning scheme. However, the following definitions can be seen
in the Macquarie and the OED (2nd Ed):
“Balcony – a balustraded or raised and railed platform projecting
from the wall of a building”.
“Balcony - a kind of platform projecting from the wall of a house or room supported by pillars, brackets or consoles and enclosed by a balustrade – the similar structure at the stern of large ships – in theatres, the open part above the dress circle, between that and the gallery”.
It should be noted that the idea of a projection from the side of a building is picked
up in the present definition of GFA.
References to balconies, or the like, can be seen elsewhere in the planning
documents. For example the above definition also refers to “a roof deck”. The
DCP in para 3.7.2 refers to “verandahs; balconies; balustrades.” Section 3.14.2
says that units should have private outdoor living space provided by a balcony not
less than 10m2 in area and 2.5m wide, or by “a court”, of certain dimensions. (See
also the decision in McGrath Corporation v Brisbane City Council (2000) QPELR
267 where a similar reference is made to a balcony projecting from a building.)
Mr Standley’s statement, (Exhibit 25B) shows that the balcony areas in those
towers remain outdoor spaces, notwithstanding the shutters or screens found on
many of them, (see the elevations). Their areas are distinguishable from the
balance of the building. The external finish of the building ends before the
balconies start. They are not weatherproof, even where shutters are fitted. They are
not all enclosed by shutters. The principal structural elements of the building are
the external columns, and the balconies are constructed within the building frame
made by those columns.
It was submitted on behalf of the appellants, at least with respect to Tower 1, that
the outdoor spaces are not “balconies”, as they did not project from the building –
that is, they were part of the building, and so ought to be included in the GFA
calculations.
That submission should be accepted. The typical floor Plan for Tower 1 shows that
the outdoor spaces envelop the single unit on each floor. They would be better
described as wrap-around verandahs. They are not projections from the side of the
building. Over the 11 similar floors of Tower 1, they contribute an additional GFA
of about 2000m2. Even if that conclusion is not correct, then it should still be found
that the developer has attempted to take an unreasonable advantage of the exclusion
of balconies from the GFA calculation by designing a building whose impact is
greatly increased by its dominant outdoor spaces. That conclusion is reinforced by
the architects’ assumption that the site cover (despite the exclusions in 3.3.2(a))
included the whole footprint of the towers. The balconies on Tower 2 and Tower 3
might just be recognised as such. They are still generous.
Overall, the result is that the three towers together are considerably bulkier than Mr
Standley’s GFA would indicate. (On the other side of the ledger, it should be noted
that the definition of GFA in City Plan has changed. It now excludes the area of the
external walls, when they were included under the Town Plan. The difference for
the three Towers was variously estimated at between 300-800m2. It is a minor
change, which would not be noticeable. In a rough way, that difference could be
balanced out against the additional 360m2 mentioned above.)

Height and Views from Public Places (3.5)

The design objective in dispute is paragraph (c) which provides “To retain an
appropriate residential scale and relationship with other buildings on the city
skyline”. The mandatory requirement does not apply to this land.
The design objectives are also supported by “requirements”, which require these
buildings to be no more than 12 storeys in height or 33m above the ground
excluding:

· lift towers and other plant rooms;
· a penthouse storey not exceeding 50% of the average area of typical floors of
a tower; and
· where on sloping land, a basement storey, up to 50% of which extends above
the ground.

Those requirements may be varied. However, “no building should extend
significantly above the skyline envelope formed by linking the tops of existing
buildings in the vicinity (which are not more than 12 storeys or 33 metres)” – see
3.5.4. So, these buildings may be of a greater height than 12 storeys or 33m so long
as the design objectives are suitable achieved (see s.3.1).
The “ampitheatre” created by the topography affects the scale of the buildings (see
Exhibit 6, page 12). That is, the lower elevation of the site assists in reducing the
relative height of each of the towers.

[106] The appellants contended that the proposal does not have an appropriate

relationship with other buildings on the city skyline because of its location near the
river rather than on the ridge of Kangaroo Point. It was said that, when viewed
from the river, the buildings would appear taller than similar sized buildings
developed further away on the ridge. While it is true that buildings close to the
river will appear, to those viewing them from the river, to be somewhat taller than
similar sized buildings located further back, that perception will vary depending
upon the particular location from which the buildings are being viewed. The
elevation assessment carried out by Mr Standley is not sensitive to those variations
and is, admittedly, the conventional way of demonstrating compliance with the
exercise described in s.3.5.4(a).

The proposed towers would not be the only high-rise buildings to be located on the
riverfront at Kangaroo Point. The recent approval of the Dundrenan building, on
the downstream side of Shaftston House, demonstrates that high-rise towers on the
riverfront are an acceptable future form of development as the area transforms into
a high intensity residential area in accordance with the intent of the DCP. The
height of the proposal is consistent with that building. There is no support in the
DCP for the idea that land close to the river should be limited to low-rise
development. The illustrations in the DCP show to the contrary (see Figure 9 on
DP-167).
It was submitted for Principal Properties that the conventional approach to identify
the skyline is the correct one. That is to say, it is determined as if viewed from a
great distance; from infinity that produces a true elevation. The DCP has elsewhere
identified that it wants views of particular places (the Story Bridge, the Central Business District, New Farm and Merthyr; and views of the Story Bridge from the
Kangaroo Point Cliffs) protected. For the skyline, there is no nomination of a
location from which it is to be identified. It was submitted that, unless one accepts
that the elevation is to be determined from infinity, it becomes difficult to identify
the location or locations from which the skyline is to be determined. For example,
the riverside walkway will be a public place. As one walks past the buildings they
will interrupt any skyline. The same is true for a person nearby on the river.

On the other hand, Mr Robinson thought that the buildings at 48 O’Connell Street,
15 Castlebar Street, Silver Quays, and 64 Thorn Street formed the skyline, and it
would be reasonable to build to those levels. While he qualified his answer by a
reference to buildings on the same topography, it can hardly matter whether the
base of buildings are at the same levels. Mr Robinson prepared Exhibit 34 which
showed the skyline envelope from the point of view of a spectator at New Farm,
and on the river. His additions to Exhibit 34 during his evidence demonstrates that
from New Farm the buildings will appear to be no higher than Dundrenan. That
was a building which, he said, sat within the skyline downstream of these proposed
buildings. He had already said that the proposed buildings are almost within the
same skyline formed by Dundrenan and other buildings upstream.
The approval of the Dundrenan building is significant. It really shows that the
height of these buildings, also on the riverfront, would not be out of scale with other
existing or prospective buildings. Even if the proper approach is to consider the
views from across the river, rather than infinity, it does not demonstrate a breach of
3.5.4(9).
There was some debate about the extent to which the buildings required variations
to the requirements of s.3.5.3. One of the arguments related to the ground level
from which the measurements should be taken - specifically whether the lobby level
of Tower 1 was property regarded as a “basement storey” which was 50% or more
below ground level. The expression “the ground” is not defined. It should be taken
to be the natural ground level before development started. See MLC Properties v
Camden Council (1997) 96 LGERA 52 . .
Secondly, there was debate about the meaning of the word “basement”. Again, it is
not defined. Its meaning here should simply be taken from the principle meaning
given to it in the Macquarie – “A storey of a building partly or wholly
underground”. That is its traditional meaning. It need not be complicated by the
fact that modern buildings often have many levels underground, particularly for car
parking. In this case, the sloping ground on the western and southern sides of
Tower 1 means that it has a basement level.
A good deal of attention was paid to the extent to which that level was above
ground. If less than 50% is above the ground, then that level need not be counted as
part of the height of the building.
The effect of the sloping ground around Tower 1 can be seen graphically in the
elevations. It can also be seen on the level 1 Plan, revision R. (Exhibit 40). From
the point of view of the Daly houses, it can be seen that much of the upstream side
of level 1 will be covered by ground. Mr Standley explained that at least 50% of
the entry level would be below ground. The reports of Mr Matovic and Kay were
to the same effect. Ultimately Mr Robinson, who was concerned about the issue, seemed to accept that approach. On all the evidence, it should be found that level 1
of Tower 1 will be more than 50% covered by the ground. In the result, those
looking at the building from the river will see 13 storeys, while those looking at the
building from behind will see less than 12. However, the 50% requirement pays no
attention to the aspect that is above or below ground.
When Tower 1 is regarded as a 12-storey building, it can be noted that its height is
250mm above the limit of 33m.
Tower 2 and Tower 3 are to be built on relatively flat ground. Each will be,
according to the definition, 13 storeys high. That is, each penthouse must be
included as a storey, because it is more than 50% of the area of the typical floors.
Tower 2 is 57% of that area, while the penthouse for Tower 3 is 67%. The
appearance of the penthouses can be seen from the elevations – they are stepped
back somewhat from the line of the units below.
The comparable requirements in the City Plan should be noted. There is no precise
height limit, but buildings are not to exceed 10 storeys. There is, therefore, a
reduction in the permissible height by two storeys. Of the several relevant
differences between the Town Plan and the City Plan, that difference is the most
notable.
Therefore, it can be seen that the three buildings exceed the height requirements by
relatively narrow margins, and that they do so without obviously exceeding the
skyline envelope. The thrust of the present provision is to retain an appropriate residential scale. A residential scale, in this context, relates to the height of the
buildings. By itself, it is not a large excess.

Streetscape and Security (3.6)

The DCP deals with the relationship between a proposed development, and the
adjacent streets and public places. There are eight design objectives. There are no
mandatory requirements. There are a number of requirements stated in s.3.6.2 and
a number of supporting considerations in 3.6.3. Not all are relevant here.
Unlike many buildings, the development does not have the usual effect on
streetscape, in practical terms. That is a consequence of the lot configuration and
the fact that the only structure close to a street frontage is the tennis court/car park
which is largely underground. The site is not included within the areas of desirable
continuous frontages on Plan 2 of the DCP. In terms of public places, its
relationship is with the river, the public walkway along the riverfront and the access
path between Tower 3 and the Mowbray residences.
The appellants complain that the proposal fails the streetscape requirements as it
presents the public with a car park/gymnasium/tennis court set back only 2m from
the road frontage as the street address of a major development. That complaint is
linked to the observation that the proposals for Castlebar Street do show a reduction
in the on-street parking, (See Exhibit 6B). However, while the access to this
development is rather restricted, and unusual in that there is no frontage in the
typical sense, it is difficult to see that the appearance of a tennis court, on the top of a quite low building near the entrance, is undesirable. See the tennis court
elevations, Exhibit 57. The car park is enclosed, and that is desirable.
In so far as the requirements are concerned:

(a) the buildings and structures have been set back the required 20m
from the high watermark of the Brisbane River;

(b) while the site has frontages to Castlebar and Lambert Streets, the
configuration of the site is such that it does not have a continuous
road frontage in the typical sense. It is not shown as a “desirable
continuous frontage” in Plan 2. The requirement has no practical
application to this site;

(c) the lower three levels of the south-eastern side of Tower 3 do exceed
30m to a relatively small degree (4.5m). That elevation has been
broken up by use of balconies and recesses and is separated from the
public access by landscaping. It is difficult to see that members of
the public using the access between Stage 3 and the Mowbray
residence would perceive, much less be offended by, the length of
the building. It was not suggested that they would. While Mr
Mowbray may complain about Stage 3, the provision is not
concerned with surrounding residents. This is not a significant issue.

Architectural Treatment (3.7)

There are two design objectives supported by four desirable solutions. There are no
mandatory requirements and no requirements. The goal is to achieve “responsive
residential architecture, scaled to human habitation” and “well detailed, sculptured yet functional buildings suited to the City’s sub-tropical climate and outdoor
lifestyle.”
By the end of the appeal, there was no issue about these objectives – it was
apparently conceded that they had been met (at least if each tower were considered
alone, and apart from other issues). The list of desirable solutions shows that the
proposal adopts many of these. There are no complaints about any discouraged
“flush, curtain walls and reflective glass”.
Mr Robinson was critical of the style and proposed colours of the towers but his
views are outweighed by those who commended their architectural merit. Overall,
the towers would be seen by many as quite handsome buildings containing many
traditional elements.
In this regard “preferred architecture” includes the use of verandahs, balconies,
louvres and other screening devices which are all features of the subject proposal.
Further, variation has been introduced by the different orientation of each of the
towers. Tower 1 is orientated at an angle to the other two towers. Tower 2 has its
longest side facing the river whereas Tower 3 has its shorter side facing the river.
Each building features steps and recesses in its walls as well as balconies of
different proportions and a variation of louvres and screening devices. The
“horizontality” of the buildings had been reduced by the use of columns. The
integrated design has the advantages spoken of by Mr Chenoweth (Exhibit 6, page
10, s.3.5.10, see also T68/10), including the enhancement of area definition, and the
introduction of design coherence in the locality. The tops of the buildings have
been sensitively designed so as to “emphasise the determination of the tower, add interest to the City skyline and avoid a roofscape marred by inconsiderate
placement of mechanical plant and utility structures”. While criticism was, at first,
levelled at the design on the basis that it would produce a “wall of development”
when viewed from the river, the perspectives (Exhibit 42A) demonstrate that this
clearly was not the case, as Mr Robinson accepted.

Compatibility with Heritage Buildings (3.8)

The one design objective is “To achieve responsive design on or next to heritage
places”.
The object site might just be said to be “next to” the heritage place of Shaftston
House. It is “in the vicinity” as the desirable solutions put it. There is a significant
buffer between the proposed site and Shaftston House formed by the Mowbray
residences, Castlebar Street and vegetation on the north-western side of the
Shafston House property. As Professor Brannock pointed out, this proposal will
have no impact upon the heritage significance of Shaftston House.
The presence of Shaftston House has not been seen elsewhere as being an
impediment to high-rise development in the immediate vicinity. The University
Mansions are nearing completion to the rear of Shaftston House.
The Development Code states that where a heritage place like Shaftston House is
to be isolated amongst newer development, it is appropriate for the newer
development to provide a contrasting setting (see s.3.8.12(a)). This differs
markedly from its provisions for a proposed building amongst a group of heritage places, where the building should be of a design which is compatible with, but does
not imitate the heritage places. The Development Code does not suggest that in a
case like this, there is to be some “graduation” from the heritage place to this
development, which is some distance away. (It should also be kept in mind that
Shaftston House stands on its own substantial grounds).
While some may regret the presence of more high rise towers not far from Shaftston
House, the DCP is no reason to actively discourage them, or this project.

Climatic Response (3.9)

There are two design objectives aimed at maximizing comfort for future residents
of the development and conserving energy. There was no issue about those
objectives – it appears that they are adequately met.

Noise (3.10)

The design objective is:
“To protect habitable rooms from excessive noise, particularly that
caused by traffic on the Story Bridge and arterial streets.”
The objective is not supported by any requirements, mandatory or otherwise. There
is no suggestion that the primary concern, traffic on the Story Bridge and arterial
streets, is a concern.
The suggested departure from this section of the DCP relates to sub-paragraph (d)
of the “desirable solutions” which says:
“Activities which generate noise, such as swimming pools, tennis courts, vehicle access ways, service equipment areas, and rubbish disposal areas, should be located away from outdoor living areas and habitable rooms, particularly the outdoor living areas and habitable rooms of existing or prospective developments on adjoining properties”.
In this respect, the objectors point to the proximity of the tennis court to existing
properties at 24 Castlebar Street, and to the Daly houses.
The appellants submit that the location of the tennis court and the access ways do
not comply with this requirement. Rather than containing such activities and their
impacts within the site, it is said that they are placed where the impacts are passed
on to the existing residents rather than to the residents of the proposed development.
In particular, it is noted that the residents at 24 Castlebar Street and those residing
in the apartments on the southern end of 40 Castlebar Street will be most affected.
For example, Mrs Johnson has bedroom windows on the side of 40 Castlebar Street,
which look directly towards the tennis court. All the residents of 24 Castlebar
Street are above the tennis court. It is pointed out that there is already a half tennis
court behind 24 Castlebar Street, and the noise from this court will add to an
existing problem. The distances are short – for example, Mrs Johnson’s windows
at 10m from the tennis court fence. Likewise, the balconies of the residents of 24
Castlebar Street are also only about 10m from the court.
The members of the Daly family complain about the closeness of the garbage
collection points to the front of their houses. The house closest to Lambert Street is
the nearest to the turning and collection area for the garbage truck – a distance of
about 20 metres.
It should be noted, that the tennis court is proposed for daytime use only – there
will be no lights.
The submissions for the developer attempted to minimize the impact of the tennis
court. Mr Rumble, an expert on noise, did not express any great concern about 24
Castlebar Street. Both he and Mr Kamst, also a noise expert, were not concerned
about 40 Castlebar Street. By comparison with the planning approach to night-time
tennis courts, the average noise from this court was within acceptable limits, during
the daytime. Further, it is pointed out that 24 and 40 Castlebar Street are not
“adjoining properties” being separated by distance and elevation. However, in fact,
they are quite close.
Mr Kamst thought that the noise from the court would be unacceptable from the
point of view of the residents at 24 Castlebar Street. Clearly enough, that opinion
should be accepted.
The vehicle access ways should pose no difficulty. The garbage collection noises
will be noticeable, no doubt, but overall should not be frequent or loud enough to
concern the residents of the Daly houses. It is the tennis court which remains a
problem. Overall, it must be said that the location of the tennis court is not a
desirable solution – particularly from the point of view of the residents at 24
Castlebar Street. It might also be noted, that the tennis court is not much further
away from the rear bedrooms in Tower 3. It is also quite close to the rear of the
Mowbray residences – but because of the level of those buildings, the garden walls,
and their orientation towards the river, that should not be a difficulty for them.
It is said in the submissions for Principal Properties, that concern about noise from
the tennis court could lead to a condition which would prevent the roof of the car
park being used for the purposes of a tennis court.
Views for Residents (3.11)
There is only one design objective:
“Subject to the need to satisfy other design objectives, to provide opportunities for development to maximize views for residents.”
As counsel observed, there are several things to note about that design objective:

(a) At common law, there is no right to preserve a view. The proper
result here depends on an application of these town planning
provisions, which are the basis of residents’ reasonable expectations
about views.

(b) It is expressed to be “subject to the need to satisfy other design
objectives”. It is the only design objective in the DCP with that
qualification. It is in contrast to the design objectives stated in
s.3.5.1(a) and (b), which are unqualified in their intention to retain
views to and from the Story Bridge. This is an indication that the
DCP puts a lower priority on this design objective than others in the
DCP, including the objectives which encourage high intensity
residential development, particularly along the riverfront.

(c) The design objective is not to prevent development from having a
significant impact on existing views or to maximize views. It is,
rather, to “provide opportunities” for development to maximize
views.

(d) Residents are not limited to residents of the properties more remote
from the river. The DCP envisages (obviously enough) the
development of riverfront land itself to take advantage of the views.
The DCP allows for riverfront land to be developed to greater
intensity than that possible on sites more remote from the river.
Read in context, s.3.11 of the Development Code is not seeking to
limit or restrict the development of riverfront land for high intensity
residential development including high-rise development. Indeed,
the illustration of Figure 9 contemplates tower development along
the river’s edge.
(Note the link to the aim in 1.3(g) of the DCP – the desire for views
is “subject to other objectives”).

It is inevitable that the encouragement of intense development along the riverfront
will have a substantial impact upon views available to those more remote from the
river. The DCP does not seek to protect or preserve the views from such properties.
Rather, the desirable solution is stated in s.3.11.2:
“As far as is reasonably possible, buildings close to the river should be designed and located to provide view corridors for buildings (existing and prospective) further from the river (Figure 9).”
Where a development is within 50m of the river, a view analysis is required. It is to
show, “how views from existing and prospective buildings further from the river
would be affected by the proposed development, on the realization that the most
desirable views are not necessarily directly towards the river”.
The approach in the City Plan is much the same. The design objective stated in
s.3.11.1 has been replaced with Performance Criteria 5 which reads as follows:
“Buildings close to the river must be designed and located to provide view corridors for existing and prospective development further from the river, and vistas for people moving about the local area.”
No particular acceptable solution is provided, except in relation to certain specified
vistas. The requirement for a view analysis found in the DCP has been relegated to
a note, to the effect that such an analysis may be requested.
The expression “as far as reasonably possible” does not say that a developer must
limit the size of a building to achieve the absolute best possible result for residents
more remote from the river. The desirable solution is expressed in a more qualified
way.
Figure 9, and the note to that figure confirms that developers are encouraged to
provide view corridors in the way towers are placed on an allotment. New towers
are to be positioned to provide view corridors “where location of existing buildings
and sites permit”. Here, the available land does not exhibit the regular development
pattern shown in Figure 9. The scope for providing view corridors will be affected
by the location, form and orientation of existing buildings and the constraints of the
site. The location of the three towers within the site is a response to those
constraints. The issue is – does it sufficiently take account of the aim to provide
view corridors for others “where the location of existing buildings and sites
permit”? The proposed development exploits the development potential of the
amalgamated riverfront land to provide the opportunity for 70 households to enjoy
the views of the river from a high quality development. They will have outstanding views. That is the result of the DCP’s provisions, about encouraging high rise
development. An obvious consequence will be the destruction of the views, and
probably the property values, enjoyed by other residents. Riverfront land is
valuable, as it has the best view. The DCP contains the conditions on which this
exchange of valuable benefits takes place. It is clear that the extent of the
remaining views depends on other criteria being satisfied – such as site cover and
GFA criteria. Once that is done then the extent of the remaining views is a
secondary consideration.

(The view corridors required in this proposal have no apparent link to the minimum
10m building separation required to protect certain vistas corridors shown on Map 2
(see s.3.3.2(b) of the DCP and Map A (in the Local Plan. It is clear that a 10m
separation will have quite different impacts, at varying distances, and varying
angles of sight.)

Views from Other Properties

It is necessary to consider in turn the impact on the surrounding properties. It is
best to start with the Mowbray houses, on the downstream side, then traverse the
ridge in an arc, arriving back at the riverbank on the upstream side.

The Mowbray Houses

The views from the Mowbray houses are preserved, because the towers are sited
more than 20m back from the river’s edge. The Mowbray houses themselves are designed to look towards the river, rather than towards the proposed buildings.
They will still have their very good views of the river.
24 Castlebar Street
This is an older, four-storey unit building on elevated ground directly behind and
above the proposed tennis court. Its car park is on level 1. Most of the views from
level 2 are obscured by the dense tree canopies in front. The views from levels 3
and 4 show increasing views of the river – see Mr Matovic’s photo 6.
Number 24 Castlebar Street will gain some views by the reduction in the tree
canopy. Views to the north-east from level 1 will be gained, and to the north-west
from levels 3 and 4. Understandably, Tower 3 and the edge of Tower 2 will present
substantial obstacles, particularly to the potential residents of a redeveloped 24
Castlebar Street. Only those with units on the western side will be able to see
between the towers – see Mr Standley’s view analysis. Those on the eastern side
should have a view, partly obscured by trees, over the Mowbray residences. Some
view should be available along the line of the public access way, if the vegetation
does not grow too high.
There are plans to place trees in the gap between Tower 3 and Tower 2. That is
proposed as being desirable to break down the built form of the towers. It also
likely to block, over time, the views from the lower levels of 24 Castlebar Street.
40 Castlebar Street
This is the 4-storey building located directly behind the proposed Tower 2. Once
again, there is a dense tree canopy in front of it. At the present time, only level 4
gives glimpses of distant views to New Farm.
The proposal will open up the site to views not previously available. However they
are not great. The relative angle between Tower 2 and Stage 1 means that they
block all views to the north. An observer at the eastern end of the building will
have a view corridor between Tower 2 and Tower 3 – see Mr Standley’s view
analysis. That corridor is only available to residents on the eastern half of the
building. Those on the western half will have no view of the river. (There is no
prospect of 40 Castlebar Street being redeveloped to a greater height. Number 112
Lambert Street, immediately behind, has the benefit of a “light and air” easement
which restricts building to the present height.)
112 Lambert Street
The owners, Mr and Mrs Forman, are appellants. They presently enjoy views of
the river from the deck on the north-eastern corner of the house. (The deck can just
be seen as the faint triangular outline on Plan 2 of Mr Chenoweth’s report.) They
overlook 40 Castlebar Street, having the benefit of the above easement. All the
views from that verandah will be blocked by Tower 2 and Tower 1. A narrow view
between Tower 2 and Tower 3 may be available from the south-eastern corner of
the house. It may be supposed that any redevelopment of the site would have a slightly wider view corridor. In effect, they will lose all the views that they now
enjoy.
94-102 Lambert Street
These three old houses are shown on Mr Standley’s view analysis. At least 98 and
102 presently enjoy good river views. With the erection of Stage 2, they would
have narrow views of the river. The view from 94 Lambert Street would be
blocked by the first Daly residence.
If those three properties were developed together then it could be expected that
there would be narrow views between Stage 1 and Stage 2 and also some views to
the north, between Tower 1 and 46 O'Connell Street. In short, the development will
mean, assuming that the three sites are amalgamated, that while a seven-storey
building at present would have very good views, this proposal would leave it
without reasonable river views.
The Daly Houses
These three houses are 102A-106 Lambert Street, and are generally to the west of
Tower 2. They have been recently built. The views of the occupants will be
substantially affected. They are graphically illustrated in the B&P survey’s report.
See Figure 20 and the following photographs. The impact of the proposed
buildings is seen on photographs 22-27. (The removal of the medium size tree with
the yellow foliage, near the power pole, will open up some view, which is presently
obscured by it). An excellent view will become a moderate view corridor between two large towers. The orientation of the houses is towards the position where high-
rise buildings would be built, inevitably.
Beau Rivage
This is a substantial unit building, on rising ground to the west of the proposed
development. At present, its occupants enjoy spectacular views – see B&P
Survey’s Figure 15 and the following photographs. Towers 2 and 3 will blend
together to obscure the bend in the river, downstream, though there will remain a
significant view between the upstream edge of Tower 1 and “The Figs” building
which is even further along the upstream bank. See the pink view corridor on Mr
Standley’s view analysis.
It should also be appreciated that Beau Rivage occupants have other views, from
the western side of their building. As well, views are retained to the south of the
development, and to the other side of Kangaroo Point.
46 O’Connell Street
This is a small apartment building known as “Dolphin Court”. Its views will be
significantly reduced, both of the river and along the downstream bank, past
Shaftston House. See Figure 1A to the B&P’s survey report, and the following
photographs. It is right to say that the views of its residents will be devastated.
There will remain a small view corridor between Tower 1 and Tower 2, and there
will also be views, at least to the unit closest to the river, past an existing large tree.
It is likely that redevelopment of the Dolphin Court site would see its reorientation
to provide views in a more north-easterly direction, over the Owen Cox building
and the two-storey low-rise apartments in front of Silver Quays.
The Figs
This is a new unit building at 40 O’Connell Street. The impact on its views is seen
in Figure 10 of the B&P’s survey report. The proposed development will block
substantial views to the bend of the river downstream and along the riverbank past
Shaftston House. However, substantial views will also remain past the edge of
Tower 1, over the Owen Cox building.
Boundary Clearances, Separation and Privacy (3.12)
These are key issues in these appeals.
There are two design objectives:

(a) to prevent buildings on adjoining sites being unduly close and
oppressive in the way they block neighbours’ daylight and exposure
to the sky; and

(b) to provide privacy for the internal and external living spaces of
dwelling units, from people in:

(i) buildings on adjoining sites;
(ii) units on the same site; and
(iii) streets and other public and common spaces, i.e. the

avoidance of “shopfront-living”.

There are no mandatory requirements. The design objectives are supported by
requirements and design solutions which may be departed from where the design
objective can be suitably addressed in another way. That is what the developer
intends to do. Are its intentions acceptable? It is submitted for the developer that
the design solution proposed achieves similar or better results in terms of fulfilling
the design objectives than the requirement or desirable solution contemplated in the
DCP.
The requirements in s.3.12.2 deal with boundary clearances and establish a range of
complying circumstances:

· The basic rule is that a building, with no screening or privacy measures, must
not be located within 10 metres of a side or rear boundary;

· An exterior wall or balcony may be within 6 metres of a boundary where that
wall or balcony is up to 9 metres in height and separated from the boundary by
landscaping (see s.3.12.2(c) and 3.12.4(b));
· Up to a 15 metre long blank wall of up to 9 metres in height may be within two
metres of a side boundary (s.3.12.2(b));
· Up to a 15 metre long blank wall of any height within six metres of the side
boundary – s.3.12.2(a). (A “blank wall” includes walls with windows which are
screened with fixed louvres – s.3.12.4(a)(ii)

Tower 1 is set back 6 metres from the common boundary with Ms Danielle Daly’s
residence. Because of the angle of Tower 1, it is the very corner of the building
which is set back 6 metres. That section of the building comprises a “blank wall”
not longer than 15 metres and is compliant with s.3.12.2(a) of the requirements. As
the walls then angle away from the boundary, they continue to be blank until they are about 10 metres from this boundary. The terrace of Tower 1 is about 10 metres
away from the Daly boundary, at its closest. There is compliance with the
requirement. It does not matter that the nearest Daly residence is set back only 2m
from its boundary.
The 10 metre requirement is departed from in Tower 1, in relation to the setback
from the northern boundary to 44 O’Connell Street – the Owen Cox building. The
setback of the balconies to that boundary varies from 6.1 metres to 8.5 metres. It is
submitted that the setback has no undesirable impacts in terms of the design
objectives. The development at 44 O’Connell Street consists of a five storey
apartment building located forward (towards the river) of Tower 1 and is oriented
towards the river. The present orientation and staggered relationships of the
buildings provides some privacy. As a further attempt to provide privacy, fixed
shutters are to be fitted to levels 1 to 6 of Tower 1 on that side. It was not
suggested that there was any particular impact on 44 O’Connell Street. The
reduced setback to that boundary, it is said, has some positive results, as there is a
greater separation and a wider view corridor between Stages 1 and 2. That
submission reveals the difficulty of fitting these three towers onto the land.
The Owen Cox building might be redeveloped, with a different building on it, to a
greater height and different orientation. The developer asks for a relaxation of the
10 metre requirement. It is not insignificant.
Tower 2 is set back 6.45 metres from the common boundary of the Daly residences.
At that point, the tower, at its typical floor levels is broken up into separate
balconies, front and rear. The Stage 2 building is separated from the Daly residences not only by the boundary set back but also by the driveway to the Daly
residences and the significant degree to which the Daly houses are themselves set
back from the common boundary. As a result, the separation between the Stage 2
building and the actual Daly residences is substantial varying from 17.5 metres to
21 metres. The first Daly house – from Lambert Street – is closest but is largely
situated to the rear of the Stage 2 building. The present building separations
approximate those contemplated by the requirements in respect of high-rise
buildings without any particular privacy measures. However, the prospect of a
redevelopment of the Daly properties cannot be ignored – they are three houses on
valuable land.
The developer proposes to ensure privacy by fitting fixed screens to the first six
levels of Tower 2. That will prevent any direct privacy problems from those levels.
It will be possible for those living on higher levels to open their shutters and look
down, onto the Daly properties. That is a consequence of the development of these
high-rise buildings which are not set back 10 metres from the property alignment.
Also, the distance to the Daly residences is not the test – it is the distance to their
boundary. While the houses are new, future redevelopment of this land could see a
larger building, closer to the boundary. As Tower 2 does not have blank walls
facing the Daly residences, there is non-compliance.
The balconies on the south-eastern side of Stage 3 are set back 6 metres from the
common boundary of the first Mowbray residence. Those balconies face the side of
Mr Mowbray’s residence which, as can be seen from the photographs, has been
designed to ensure privacy. His side wall consists mainly of a masonry wall with
some small windows and a larger, but visually obscure, glass brick section. A similar design has been applied to each of the Mowbray residences which are
separated, one from the other, by only two metres (having been built under the
small lot code).
To guard against any privacy concerns, the developer proposes fixed shutters to the
first three levels. Upper levels, to which moveable shutters are to be fixed, are
higher than, and therefore do not directly look into the Mowbray residence.
However, as Mr Standley’s diagrams show, occupants on those levels look over the
front areas and pools of those three houses.
The developer has attempted to eliminate any direct privacy considerations. Mr
Mowbray referred to the ability of people on the lower levels, leaning over the edge
of their balcony and looking back at the Mowbray residence. It was submitted the
degree of privacy which is afforded by the proposal, which is set back from the 20
metre riparian line and adopts fixed screening on the lower levels of the building,
provides a superior results in terms of privacy than would apply for a building, built
to the requirements, with a 10 metre boundary clearance but without shutters,
extending forward to the 20 metre setback from the Brisbane River. There is some
force in that submission. About 2.5 metres of the Mowbray balconies would be
sheltered from view.
The DCP encourages a public accessway to be provided in the area and requires
adjacent buildings to address that pathway and provide casual surveillance of it.
The design response to these competing objectives “has been particularly well
handled”, it is submitted.
Understandably, Mr Mowbray pointed to oppressiveness in a psychological sense.
Mr Robinson, the architect, observed that the 6 metres allowed little space for
landscaping as the public access way takes up 3 metres. The full 10 metres would
provide an opportunity for more substantial and effective landscaping. Mr Robinson
argues that it is important to have a 10 metre setback, because landscaping will be
included in it. It is true that that is not what the Development Code says. It
imposes no requirement for landscaping in a 10 metre setback area. However,
landscaping is shown on the developer’s plan (Plan R), so it can be assumed that it
would be retained in a larger gap between buildings.
Mr Buckley referred to oppressiveness in a general sense relating to the scale of the
building. It is true that the tall part of the building is set back from the riverfront
alignment of Mr Mowbray’s house and accordingly, from his outdoor terrace and
pool. The design objectives in s.3.12.1 are concerned with buildings being “unduly
close and oppressive”. They are concerned with oppressiveness “in the way they
block neighbour’s daylight and exposure to the sky” and with the provisions of
privacy. While efforts have been made to use louvres to achieve privacy, they are
limited in their application. A significant relaxation is sought by the developer.
The tennis court/carpark building encroaches within the usual setback from its
southern boundary with the undeveloped finger of land which separates the subject
site from 24 Castlebar Street. The carparking structure is cut into the earth at that
boundary to effectively create an underground structure at that point. It has no
effect on the achievement of the design objectives set out in s.3.12.1. (See the
sections of the carpark, and the objections (Exhibit 5). The impact of this technical
disregard for setbacks is negligible.
Section 3.12 also deals with the separation between buildings within the same site.
Section 3.12 has no requirements, mandatory or otherwise, in relation to that
separation. It does however, nominate a desirable solution in s.3.12.3(b). That
desirable solution contemplates a number of options to protect the future amenity of
future residents of the subject proposal. The desirable solutions contemplate:

· units, directly facing each other, separated by a distance of 20
metres or more;
· units, no more than 9 metres high, which are directly facing each
other but separated by a distance of 12 metres and by
landscaping (see 3.12.3(b)(93) and 3.12.4(b));
· the exterior wall or balcony of a unit directly facing the blank
wall of another without any particular building separation. In
this regard, a “blank wall” includes a wall with windows fitted
with louvres to protect privacy (s.3.12.4(a)(2)).

The area of relevance, in this regard, is those units which face each other between
Stages 2 and 3. The developer has separated those units by a minimum of 12
metres and has provided moveable louvres so that any resident concerned about
overlooking has the means by which to prevent that occurring. There is non-
compliance, as the “desirable solution” is not satisfied. It is submitted that the
louvres provide an appropriate level of amenity to the future residents of the
proposal and meets the design objectives. Reference was made to Figure 14 at DP-
168 which shows “solid walls or screens” between units which are obviously closer
than 20 metres apart. However, the acoustic amenity of the occupant in Towers 2 and 3 will be affected by the closeness – their units will receive more noise from
their neighbours.
Over-Shadowing (3.13)
The design objective is to have winter sunshine reaching the outdoor living areas
and living room windows of all building units. The requirement, in 3.13.2(a) is that
“buildings should not overshadow the living room windows of units of an existing
or prospective development on a nearby site for more than one hour between 10.00
a.m. and 2.00 p.m. on 22nd June.”
Several diagrams, and a good deal of evidence, explained the overshadowing effect
of this proposal. The analyses (Exhibits 21 and 32) demonstrates that the
requirement is met for all building units, except 40 Castlebar Street (and possibly)
the closest Mowbray residence.
At present, the living areas of 40 Castlebar Street are overshadowed by the existing
vegetation around that building. That building has deep balconies such that the
shadow angle at 11.00 a.m. results in sun penetrating the living areas for a distance
of 1.5 metres, in any case. The shadow analysis by Mr Matovic illustrates the
extent of shadow on the building from the proposed development.
It seems likely that 40 Castlebar Street would be overshadowed by most forms of
high rise development on the site. The present design of the buildings, with Tower
2 having its longest sides parallel to the river, does reduce the impact.
The other possible concern is with the closest Mowbray residence. It has a glass
brick window on its otherwise blank wall facing the side of Tower 3. Because
Tower 3 is set back from the front of the Mowbray residence, its shadow is cast on
that wall. The glass brick section will be in partial shadow at 1.00 p.m. and full
shadow at 2.00 p.m. The shadow will first start to fall on the window between
11.00 a.m. and noon. However, the glass bricks are not a “living room window” –
they illuminate part of the open plan interior of the residence, including a stairwell.
It should also be kept in mind that a high rise building which is set further back
from the boundary could well have the same effect, in any case.

Overall, in the context of the whole development, the overshadowing of 40
Castlebar Street should be regarded as a minor complaint.
Outdoor Living and Recreation Space (3.14)
The minimum requirements for a balcony have already been dealt with. The other
requirement, the 30 per cent or more of the ground level of any site is to be
provided as common landscape and recreation area, is satisfied in this case.
Landscaping (3.15)
There is no issue about this requirement. If the development is approved,
landscaping can be dealt with in accordance with Condition 31.
Required External Works (3.16)
There is no real issue about these matters. Mr Chenoweth’s plans (Exhibit 6B)
demonstrate that it is possible to have alternative ways of achieving a suitable result
in the layout and design of Castlebar Street.
Access for the Disabled (3.17)
This was a live issue. The design objective is “to provide convenient and equitable
access for the disabled.”
It was submitted for the appellants that the public access to the river was not
accessible to the disabled, and that Principal Properties should not receive the
benefit of a bonus about the GFA. However, it appeared that the objection was
based on the observation that Castlebar Street is too steep to provide access for the
disabled to this land. That may be true – Castlebar Street is quite steep, and it has,
or would have after landscaping, very limited public parking. However, the DCP
provision applies to the development site, and not to a public street. On the land
itself, adequate provision for disabled access has been provided. There are two
carparking spaces reserved for the disabled and ramps link the terraces between
buildings. There is such a link between the carparking spaces and the entrance to
Tower 1, the most distant building. (On the assumption that handrails would be
fitted, in due course)
Riverside Public Access and Park (3.18)
Other Pedestrian Access Ways (3.19)
These requirements have been mentioned above. There are no other issues.
Parking and Vehicular Access (3.20)
There were some issues at the hearing about traffic. Various matters were raised,
including the number of visitor carpark spaces. Finally, it was clear enough that all
the usual requirements of carparking on site have been met, with some additional
spaces, because of the limited on-street parking.
At the end of the day, the most serious concerns were those raised by Mr Mowbray.
It did appear that insufficient attention had been paid to cars entering and leaving
the Mowbray residences, especially the residence close to Tower 3. Fortunately,
some further consideration by the traffic engineers showed that the difficulties
could be overcome easily enough. Exhibit 18B shows the drawings of Mr Holland,
the traffic engineer, to overcome the difficulties. The wide footpath opposite the
first residence, in particular, will allow the drivers of vehicles reversing out to stop
and then look both ways, before executing a three point turn. The same applies to
the third Mowbray residence, closest to Shaftston House. It will have the protection
of an unused part of Castlebar Street immediately next to the existing bank.
The Complaints
The application, in its original form, resulted in 369 submissions objecting to it. At
the hearing, twelve residents gave evidence, expressing their various concerns.
They included Mrs Favell, who lives at New Farm, on the riverfront, almost directly
across from this land.
The neighbouring residents, above all, expressed great disappointment at the impact
on their views. There is no reason to doubt their natural upset about views. No
doubt some were concerned about the impact on the value of their property. Others
will clearly suffer in a personal way. Mr Forman is now an elderly artist, having
settled at Kangaroo Point after being forced to flee his native Czechoslovakia. His
view of the water reminds him of their house in their homeland – it overlooked a
lake. All that will be lost to him because of the rear of Tower 2. He complains
bitterly about the plans to put a high rise building next to the water, compared to his
observations of urban development in other parts of the world. He may well be
perfectly right about that. Unfortunately, this DCP has taken a different approach.
Some of the complaints arise out of a misunderstanding about the impact of the
Daly easement. That is, Principal Properties has been able to acquire the Walsh
land, and integrate it into this development. As explained above, the easement is
not an inevitable obstacle to the development, as some of them had assumed it to
be.
The complaints which cause the greatest concern are those related to the bulk and
oppressiveness of the towers. Mr Mowbray, for one, expressed great concern about the limited boundary setback of Tower 3. The 40 per cent reduction in the usual
separation distance was important to him. There was certainly strong feeling to his
opposition – he was unpersuaded about the benefits that the present setback of
Tower 3 from the riverfront provided to him.
Others noted that, as they looked towards the river, two of the towers would present
as a single wall – for example, to Dr Phillips. Ms Danielle Daly expressed great
concerns about the lack of privacy from the closeness of Tower 2. From the point
of view of the Daly houses, the location of Tower 2 and Tower 3 forms a solid
barrier across the site to the south-east. The occupants of those houses will
undoubtedly feel hemmed in by the towers.
Even though some of the residents did not presently enjoy expansive views
(particularly because of the vegetation at the present time) they were unpersuaded
that slivers of distant views between the towers would be an improvement.
From the point of view of the objectives of the DCP, the most significant
complaints are those which relate to oppressiveness, the reduced separations, and
the loss of privacy. The loss of views may be kept in mind.
Overview
The above examination of the way in which the Development Code has been
observed shows that this development has usually been successful in achieving its
aims. In some cases, the departures are not significant.
There are some matters of considerable concern. They are the intensity of
development and the boundary clearances, separation and privacy. The very large
“balconies” on Tower 1 effectively make the GFA larger than the DCP expects. The
effect of the extensive use of shutters (introduced to lessen the impact of the
closeness of the towers to each other, and to some of their boundaries) combined
with the strong elements of the vertical columns, is to make the buildings wider and
more solid in appearance. That is, they are relatively bulky compared to the size of
their internal living areas. The buildings are hardly “transparent” between the
balconies, especially when one looks above or below a direct line of sight.
The separation distances, in several significant respects, are less than those
expected by the DCP. It is true that the extensive use of shutters, and the location
of the towers, has some benefit – for example, Tower 3 being set well back, away
from the front of the Mowbray houses.
To those considerations might be added the excessive height and number of storeys
(by themselves not great, as explained above). In that context, some weight should
be given to the City Plan, where it puts the maximum height at 10 storeys.
It should not be forgotten that Principal Properties is prepared to accept conditions
which would see the omission of the tennis court, and also that the GFA be reduced
by the sum of the recreation areas in dispute.
While views are a secondary consideration, they should not be ignored. A
consequence of the size and closeness of the towers, is that views are reduced. In considering the consequences of that, the impact on many other residents can be
taken into account.
It is obvious that much effort and skill has been put into achieving an acceptable
result on a difficult site. It is a complex situation. There have been substantial
views expressed for and against the proposal. At the end of the day, the views of
Mr Robinson and Mr Buckley, the town planner, should be accepted, because of
the particular factors set out above. This proposal “pushes the envelope too far” as
Mr Buckley put it. Mr Robinson’s evidence was to the same general effect. They
were right. The design objectives of the DCP have not been sufficiently met,
particularly because insufficient regard has been paid to the actual intensity of the
development, to boundary clearances, separation, privacy and the consequential
effects on views. The “best balance”, as explained above, has not been achieved.
The legitimate expectations of the surrounding residents have not been sufficiently
respected.
The appeals are allowed. The development approval of the Brisbane City Council
is set aside.

FILE NOS:	4297 of 2000 4310 of 2000
PROCEEDING:	Appeals
DELIVERED ON:	21 September 2001
DELIVERED AT:	Brisbane
JUDGE:	Judge Brabazon Q.C.
ORDER:	Appeals allowed. Order that the development approval dated 22 September 2000 be set aside
CATCHWORDS:	EASEMENTS – substantial interference - impact on planning approval - Stokes v Hayes Pty Ltd & Willoughby Municipal Council (1983) 6 APAR 274-275 – Finlayson v Campbell SC NSW 4 September 1997 and Keefe v Amor (1965) 1 QB 334 followed – Town Plan and City Plan – Kangaroo Point Development Control Plan – meaning of “best balance” – that not achieved – meaning of “balcony” – impact on GFA.
COUNSEL:	Mr R Bowie (solicitor) for the appellants Mr E Morzone for the respondent Mr P Lyons Q.C. and Mr M Rackemann for the co- respondent
SOLICITORS:	Minter Ellison for the appellants Brisbane City Legal Practice for the respondent Nicol Robertson Halletts for the co-respondent

·	aims to achieve the optimum balance in the way the various design objectives are achieved;
·	indicates the objectives likely to be of most importance and the balances and compromises which may be appropriate;
·	acknowledges that the design objectives can often be achieved in alternative ways.

(a)	design objectives for that element, to be considered;
(b)	mandatory requirements for certain elements. It is not every

(a)	the Policy does not, on its face, purport to apply to the DCP area;
(b)	the DCP does not refer to the Policy (compare 3.20.2(a) of the

“(a)	to achieve the aims of the Plan in a way which results in a quality
residential environment;
(b)	to encourage the amalgamation of sites and the better
development possible on larger sites, while allowing higher
intensities on larger sites”.

·	lift towers and other plant rooms;
·	a penthouse storey not exceeding 50% of the average area of typical floors of
a tower; and
·	where on sloping land, a basement storey, up to 50% of which extends above
the ground.

·	An exterior wall or balcony may be within 6 metres of a boundary where that
wall or balcony is up to 9 metres in height and separated from the boundary by
landscaping (see s.3.12.2(c) and 3.12.4(b));
·	Up to a 15 metre long blank wall of up to 9 metres in height may be within two
metres of a side boundary (s.3.12.2(b));
·	Up to a 15 metre long blank wall of any height within six metres of the side
boundary – s.3.12.2(a). (A “blank wall” includes walls with windows which are
screened with fixed louvres – s.3.12.4(a)(ii)

·	units, directly facing each other, separated by a distance of 20
metres or more;
·	units, no more than 9 metres high, which are directly facing each
other but separated by a distance of 12 metres and by
landscaping (see 3.12.3(b)(93) and 3.12.4(b));
·	the exterior wall or balcony of a unit directly facing the blank
wall of another without any particular building separation. In
this regard, a “blank wall” includes a wall with windows fitted
with louvres to protect privacy (s.3.12.4(a)(2)).

[2001] QPEC 61

21/09/2001