Walters & Ors v Brisbane City Council & Anor
[2019] QPEC 3
•18 February 2019
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Walters & Ors v Brisbane City Council & Anor [2019] QPEC 3
PARTIES:
WALTERS & OTHERS
(Appellants)v
BRISBANE CITY COUNCIL
(Respondent)AND
AVEO GROUP LIMITED ACN 010 729 950
(Co-Respondent)FILE NO/S:
239 of 2018
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
18 February 2019
DELIVERED AT:
Brisbane
HEARING DATE:
4, 5, 6 and 7 December 2018 and further written submissions on 29 January 2019
JUDGE:
Kefford DCJ
ORDER:
It is ordered that:
1. By 4pm on 13 March 2019, the Respondent is to deliver a draft suite of conditions to the other parties.
2. The appeal be listed for review at 9.15 am on 27 March 2019.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPEAL – where the co-respondent seeks a development permit for material change of use to redevelop its existing retirement facility with a new retirement facility – where the application is impact assessable – whether the Council approved the development application – where local residents oppose the development – whether the proposed development complies with assessment benchmarks with respect to height, bulk, scale and density – whether amendments to City Plan 2014 should be given significant weight – whether proposed amendments to City Plan are complied with and should be given weight – whether need is a relevant matter that supports approval in this case – whether there are other sound town planning principles that are relevant matters that support approval
LEGISLATION:
Planning Act 2016 (Qld), s 45, s 59, s 60
Planning and Environment Court Act 2016 (Qld), s 45
Planning Regulation 2016 (Qld), s 31
CASES:
Bell v Brisbane City Council & Ors [2018] QCA 84, distinguished
Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPEC 23; [2003] QPELR 614, approved
Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor [2009] QCA 237; (2009) 175 LGERA 126, cited
Isgro v Gold Coast City Council [2003] QPEC 2; [2003] QPELR 414, approved
Parmac Investments Pty Ltd v Brisbane City Council & Ors [2018] QPEC 32, cited
PMM Group Pty Ltd v Noosa Shire Council [2005] QPEC 79; [2006] QPELR 144, approved
COUNSEL:
K Wylie for the Appellants
B Job QC for the Respondent
C L Hughes QC and M Batty for the Co-RespondentSOLICITORS:
QuDA for the Appellants
City Legal – Brisbane City Council for the Respondent
Cooper Grace Ward for the Co-RespondentTABLE OF CONTENTS
Introduction............................................................................................................................ 3
The nature of the Appellants’ concerns.................................................................................... 4
The subject site and the locality............................................................................................... 5
The proposed development..................................................................................................... 6
The proposed use............................................................................................................... 6
The building envelopes........................................................................................................ 7
The design.......................................................................................................................... 8
The issues to be determined.................................................................................................. 11
The assessment benchmarks.................................................................................................. 12
Is there non-compliance occasioned by the height of the proposed development?................... 13
Is there non-compliance occasioned by the density, bulk and scale of the proposed development? 14
Overall outcome (1) of the Low density residential zone code............................................. 17
Overall outcome (3)(b) of the Ashgrove-Grange district neighbourhood plan code.............. 18
Multiple dwelling code....................................................................................................... 18
Overall outcome (2)(e) of the Multiple dwelling code......................................................... 19
Overall outcome (2)(g) of the Multiple dwelling code......................................................... 21
Performance outcome PO5 of the Multiple dwelling code................................................... 22
Performance outcome PO15 of the Multiple dwelling code................................................. 27
Performance outcome PO51 of the Multiple dwelling code................................................. 28
Performance outcome PO52 of the Multiple dwelling code................................................. 29
Impacts on Balun Park.......................................................................................................... 29
Should weight to be given to the amendment to the assessment benchmarks?.......................... 33
Relevance of the existing use – a matter prescribed by regulation............................................ 35
Relevant matters................................................................................................................... 36
Proposed City Plan amendments........................................................................................... 36
Should the proposed amendments be given weight?........................................................... 36
The relevant proposed amendments................................................................................... 37
Does the proposed development comply with relevant proposed amendments to the Low density residential zone code?......................................................................................................................................... 44
Does the proposed development comply with relevant proposed amendments to the proposed Retirement and residential care facility code?............................................................................................................. 48
Conclusion regarding significance of the proposed amendments.......................................... 51
Need.................................................................................................................................... 51
General principles.............................................................................................................. 51
Evidence of need............................................................................................................... 53
Relevance of need............................................................................................................. 57
Sound town planning principles including absence of tangible impact....................................... 66
Conclusion............................................................................................................................ 67
Introduction
Aveo Group Limited (“Aveo”) owns land at 24 Free Street, Newmarket that it presently uses for a retirement village. The current retirement village contains 74 independent living units that are approaching 30 years in age. Aveo seeks to redevelop the subject site with a retirement village containing 255 independent living units and associated facilities.
On 17 October 2016, to facilitate the redevelopment, Aveo made a development application seeking a development permit for material change of use.
On 18 December 2017, Brisbane City Council (“the Council”) approved the application subject to conditions.
On 23 January 2018, the Appellants appealed the Council’s decision. The Appellants are residents of the Newmarket area who had each lodged a submission opposing the proposed development. Their fundamental concern relates to the height, bulk, scale and density of the proposed development.
The nature of the Appellants’ concerns
Mr Wylie articulated the nature and extent of the Appellants’ concerns in his closing address as follows:
“MR WYLIE: Thank you, your Honour. Your Honour, I’ll be relatively brief. The position of my clients has been explained fully within my written outline. The appellants, some of whom are here in the rear of the court today, do not oppose a retirement facility being developed on this site. In that sense, it’s a bit of an unusual case. It’s not a case of “not in my backyard”, people saying that development of any form should not be allowed to proceed on this site. They’ve lived with a retirement facility on the subject site since 1990. What they simply say is that this development is too big, and in particular, the manner in which this development presents to Free Street and to Balun Park is too large.
The case is a simple one, as I indicated. It’s a good location for a retirement facility. That’s why there are the number of concessions that have been identified by Mr Craven. Here, they’ve been recited at length, both in his joint report and also in my learned friend’s written submissions. That’s why there’s no complaint about landscaping or insufficient articulation or screening or setbacks.
HER HONOUR: So there’s no complaint about insufficient articulation?
MR WYLIE: No, your Honour. There’s no complaint about it. This building could not be more articulated. For the same reason that there’s no issues that relate to hard amenity, such as lighting, privacy, noise and traffic. But none of those things overcome the bulk and scale of this development, your Honour. The fact is that this development is and remains within the low density residential zone and the scale of development of this form in this zone is simply [in]appropriate.”
(emphasis added)
As was alluded to by Mr Wylie, the Appellants’ position is consistent with that of the only expert they retained, Mr Craven. Mr Craven was the only expert who suggested the proposed development is inappropriate. Despite holding that opinion, Mr Craven made a number of concessions about the acceptability of the proposed development.
Mr Craven accepted that the proposed development is largely consistent with the Strategic framework in Brisbane City Plan 2014 (“City Plan”)[1]. He acknowledged that it is intended that the City provide for a diverse range of housing forms to meet the needs of a growing population, and to cater for people at all stages of their lives. He acknowledged that there is a growing need for retirement facilities to cater for an ageing population.
[1]References to City Plan in this judgment are a reference to version 3.01 unless expressly stated otherwise or otherwise required by the context.
Mr Craven considered the subject site suited to a retirement village development. His opinions were informed by the existence of a retirement village on the subject site presently and the response in the Strategic framework provisions to the need for ageing-in-place accommodation. He agreed with Messrs Perkins and Gaskell, the town planners retained by Aveo and the Council respectively, that the proposed development will provide aged care accommodation that meets the needs of the community and minimises environmental impacts.
Mr Craven agreed with Messrs Perkins and Gaskell that the subject site’s size and its proximity to Enoggera Road make it suitable for upgraded, diverse housing forms. He agreed that the proposed development is consistent with expectations created by the Low density residential zone code. The code anticipates the location of retirement facilities on appropriate sites. He accepted that the subject site’s size and current use for a retirement village makes it eminently suited to such development.
Mr Craven candidly acknowledged many of the positive attributes of the proposed development. He accepted that the interface between the proposed development and residential development along the northern and eastern boundaries, including the Free Street frontage, includes landscaping and some lower rise buildings to provide for a transition in building height. He acknowledged that the transition to the Goring Street properties immediately north was largely well managed. This is achieved by a transition from two storeys nearest the shared boundary to three storeys about 20 metres away.
Mr Craven opined that the subject site is suited to development associated with an existing retirement village, and its redevelopment is within expectations created by City Plan. He accepted that an increase in density over and above that of the current retirement village is within expectations.
Mr Craven accepted that the physical amenity impacts of the proposed development could be managed. He acknowledged that the proposed development was unlikely to create unreasonable amenity impacts in terms of loss of views and shadowing.
With respect to contemporary planning, Mr Craven accepted that the proposed amendments to City Plan acknowledge the need for a more streamlined approach to extending or upgrading residential care and retirement facilities and catering for new facilities. The proposed amendments to City Plan recognise the need for such facilities.
In light of all these concessions, it is unsurprising that Mr Craven acknowledged that the subject site’s attributes create an opportunity for more intensive development, and perhaps taller buildings, than clearly enabled in the Low density residential zone. Mr Craven opined that sections of the subject site towards its centre, and some sections along the park boundary, may be able to accommodate three storey buildings.
The subject site and the locality
The subject site has an area of approximately 23 520 square metres. It has a frontage of 132 metres to Free Street and a frontage of 15 metres to Pine Street.
Along the northern boundary, the subject site directly adjoins four residences. Each is a high set weatherboard clad dwelling house with a corrugated iron roof. The dwelling houses are two storeys in height. A pathway and roadway separate the subject site from residential development to the east. Balun Park flanks the subject site’s western and southern boundaries.
The subject site is part of a discrete area bounded by Enoggera Road to the east, and Enoggera Creek to the north, west and south. It adjoins a cul-de-sac at the end of Free Street. The area contains a range of residential zoned land, including land within the Low-medium density residential (2 or 3 storey mix) zone, the Low density residential zone and the Character residential zone.
Access to this discrete area can be obtained via an all turns signalised intersection at Davidson Street and Enoggera Road. There is also left-in left-out access into Thurlow Street from Enoggera Road.
More broadly, the subject site is located within five kilometres of the Brisbane CBD. It is within 350 metres of Kelvin Grove Road and approximately 750 metres from the closest shopping facilities, being Aldi at Kelvin Grove. There is a range of public transport options within approximately 650 metres of the subject site.
The area is not one with a homogenous residential character. Entering the area from Davidson Street, one is immediately struck by the presence of Saint Ambrose’s school on the north-eastern corner of Davidson Street and Enoggera Road. It is zoned Community facilities. In addition, at the end of Thurlow Street, on the north-eastern corner of Free Street and Goring Street, is an aged care facility. The area also contains a significant amount of low-medium density zoned land. Having regard to the existence and configuration of institutional uses and multiple dwellings as well as detached dwellings, I accept the opinion of Mr Powell that the area has a mixed character.
Proximate the subject site, the locality’s character is influenced by the existing use of the subject site for a dated retirement village containing 74 independent living units. Access to this village is currently via Free Street. The buildings within the village are of a brick and tile style of construction. They turn their back on the adjacent streets and the park, instead addressing the internal road network. The most extensive external presentation of the existing use is along the Free Street frontage.
On the first day of the hearing, I was taken on an inspection of the subject site and its surrounds. The inspection affirmed impressions I gained from photographic evidence that the existing retirement village presents to Free Street as an unsympathetic length of metal fencing over which one can observe little more than a seemingly continuous length of terracotta roof tiles. In combination, the built form layout, brick and tile style of construction and the unsympathetic metal fencing bears no resemblance to adjacent character housing. It does not meet contemporary standards for subtropical design.
The proposed development
At the outset of the hearing, in an attempt to address concerns held by the Appellants, Aveo sought an order to permit the appeal to proceed on the basis of a minor change to its development application. There was no opposition to the order. I granted the order as I was satisfied that the proposed change was a minor change.
The proposed use
The proposed development now seeks a development permit for a material change of use to facilitate a retirement facility with 225 independent living units and ancillary uses and facilities for its residents.
The ancillary uses and facilities include a gym; health and wellness centre with attached change-room; bathroom and multi-purpose area; kitchen and attached indoor communal dining area; lounge and games area; communal BBQ area; administration area for staff; communal eating area (café); cinema; business centre; meeting rooms and consulting rooms for visiting health professionals; greenhouse and planting areas; and a communal bus.
Access is proposed via an eight-metre-wide crossover on Free Street to the internal driveways and the carparking area. A secondary access point to Free Street is available for emergency vehicle access. It will be separated by bollards. No access is provided from Pine Street. The majority of carparking is located at the basement level. Pedestrian access is proposed via a number of entrances along Free Street.
The building envelopes
The use is to be contained in eight separate buildings – one single-storey unit and seven multi-storey buildings of varying height.
The proposed buildings are to be constructed over the top of a single basement carpark that circumnavigates the subject site. The buildings have between two and four habitable floors.
The single-storey unit is an existing unit in the retirement village. It sits adjacent the Free Street frontage, on the northern side of the proposed access driveway. There is no opposition to its built form.
Building ILU A adjoins Free Street at the northern part of the subject site. It is approximately 60 metres in length. Its length is generally oriented east-west, parallel to the northern boundary. At its highest point, the building is three storeys, but the northern half steps down to two storeys. It is setback six metres from the proposed 3.75 metre offset or boundary realignment and 9.75 metres from the current boundary adjoining the Free Street frontage. It is setback six metres from the common boundary with the adjoining residences to the north.
Building 1 is to the immediate south of building ILU A. Its length is oriented in an east-west direction. It also adjoins Free Street. It is four storeys but the eastern part of the building steps down to three storeys. Building 1 is setback more than six metres from the proposed 3.75 metre offset or boundary realignment and more than 9.75 from the current boundary adjoining the Free Street frontage.
Building ILU D adjoins Free Street and the pathway to Balun Park. It is approximately 75 metres in length. Its length is oriented in a north-south direction, generally parallel to the Free Street frontage. At its highest point, the building is five storeys. At its northern end, the building is no more than four storeys. The additional storey at the southern end is a function of the design of the basement carpark on the southern one-third portion of the subject site. On that part of the subject site adjoining the pedestrian pathway to Balun Park and the park, the basement will extend more than one metre above ground level as defined in City Plan. As such, the protrusion is a storey for the purpose of City Plan. However, the building will present as no more than four storeys in height. This is because the basement protrusion will be disguised by a battered landscape edge. The eastern half of building ILU D is stepped down one storey, providing a transition in height towards the site boundary. That part of the building that adjoins Free Street is setback six metres from the proposed 3.75 metre offset or boundary realignment and 9.75 metres from the current boundary adjoining the Free Street frontage. That part of the building that adjoins the pathway to Balun Park is setback even further, between 10 and 16 metres.
Buildings ILU E and F adjoin the southern boundary of the subject site. They are each approximately 55 metres in length, with their longest axis parallel to the southern boundary. They have a height of five storeys as defined by City Plan. This is because the basement extends more than one metre above natural ground level. As with building ILU D, the basement protrusion will be disguised by a battered landscape edge. The apparent height of the building perceived by a casual observer will be four storeys. In addition, that part of building ILU E that adjoins the eastern boundary is stepped down one storey in height. Both buildings are setback a minimum of six metres from each of the eastern, southern and northern boundaries.
Buildings ILU C and B adjoin the western boundary of the subject site. Their length runs parallel to that boundary. Building ILU C is about 60 metres long. It has a height of between four and five storeys north to south. The change is due to the emerging basement level. Building ILU C is setback a minimum of six metres from the western boundary, but about half of its length is setback approximately 15 metres. Building ILU B is stepped in height from north to south with two, then three, then four storeys. It is setback a minimum of six metres from the northern boundary and approximately 15 metres from the western boundary.
The proposed buildings cover approximately 46 per cent of the subject site. The balance area is predominantly used for landscaping, access, and integrated open space. The total area of communal open space is 4 410 square metres or approximately 15 per cent of the subject site.
The design
The overall built form has been designed to complement the natural contours of the subject site, which fall away from the Free Street frontage towards the parkland and watercourse along the southern and western boundaries. Higher parts of the buildings are positioned along the southern and western boundaries, as well as centrally on the subject site where retirement units are located above communal facilities.
Along the northern boundary, at the interface with adjoining residences, the proposed development is limited to two storeys. Those parts of the buildings nearest the eastern boundary will appear as three storeys in height.
The maximum height of the buildings apparent to a casual observer is no more than four storeys. In those parts of the subject site where the basement extends above ground level, the design approach is for the finished ground levels to gently rise up to the podium level, offering a battered landscape edge. This results in reduction by one storey of the apparent height of the building envelope perceived by a casual observer.
The proposed development incorporates other favourable design elements such as central public spaces; extensive pedestrian circulation pathways and linkages; various garden areas (including the purpose-built greenhouse); landscaping along the boundaries adjoining residential development; and deep planting areas throughout the subject site.
The setback of the multi-storey buildings from the boundaries of the subject site will be no less than six metres and up to approximately 16 metres.
Mr Peabody, the architect retained by Aveo, gave evidence about the design approach adopted for the proposed development.
I accept the evidence of Mr Peabody that the master planning of the proposed development carefully considered the existing road patterns and arranged the building envelopes to encourage visual and physical permeability through the subject site. The setbacks are, in part, the same as that provided for in applicable acceptable outcomes in City Plan. However, as was observed by Mr Peabody during cross-examination, some of the buildings provide greater setback, such as those adjacent the pathway to Balun Park.
I also accept Mr Peabody’s evidence that the design of the proposed development takes account of the subject site’s topography while integrating with the existing built form in the area and neighbouring uses. As Mr Peabody explains in his individual report, it does so by providing a terraced arrangement of building envelopes above finished ground level with:
(a) two storey buildings proximate the adjoining existing dwellings along the northern boundary;
(b) buildings with an apparent height of two and three storeys addressing Free Street and the pedestrian pathway between Balun Park and Free Street; and
(c) buildings with an apparent height of four storeys addressing the Balun Park frontage and the open space and recreation areas proposed at the centre of the subject site.
Mr Peabody also explains that the built form aesthetic of the proposed development is further articulated by a layering of elements, including:
(a) undulating lines of balcony edges;
(b) sweeping rooflines and deep eaves contrast with portal frames;
(c) batten screening arranged in varied pattern, providing privacy and shade;
(d) visual diversity in balustrade treatment;
(e) planter elements offering visual relief and identifying building entries; and
(f) material and colour pallet accentuating the layering in the building form.
His evidence about articulation was unchallenged and I accept it.
Exhibit 3 is a report prepared by Mr Mark Elliott. It contains a series of digital photomontages that illustrate the impact of the design measures adopted.
During cross-examination, Mr Craven made the following observation about the photomontages:
“A photo montage is creating - I don't know if "illusion" is the right word, but it's certainly creating a - it's crafting a situation to produce an effect, and so one is real life and the other one is an artist's impression, which is what it is; it's not fact. And there's more than just that photo to look at. I think we're kidding ourselves if we think that that angle is the way in which the public will see this complex.”
Mr Craven does not have the qualifications possessed by Mr Elliott. He accepts he is not a visual impact expert. I reject his criticisms of the photomontages.
Mr Elliott was not required for cross-examination. In his report, Mr Elliott provides a detailed and cogent explanation of the process he followed to produce the photomontages. He opines that the photomontages represent a reasonable, survey-accurate interpretation of the proposed built form design and the proposed landscaping concept five years after practical completion of the development. The vantage points selected for the photomontages represent viewing locations of concern to the Appellants.
The photomontages accord with the descriptions of the proposed development given by Mr Peabody.
Mr Powell, the landscape architect and visual amenity expert retained by Aveo, regarded the photomontages as reliable in their depiction of the proposed landscaping concept five years after practical completion. During his oral evidence, Mr Powell gave the following evidence about his reliance on the photomontages:
“I take it that you’ve formed the view, as a visual amenity expert, that there will not result in unacceptable visual impacts – there will not be resulting unacceptable visual impacts from this development, and, in forming that view, you’ve relied upon the photo montages prepared by Mr Elliott?‑‑‑Both are correct. Yes.
Is there a difference in terms of assessing visual impact between reliance upon photo montages and examining cross-sections or elevations?‑‑‑Yes. I – I mean, it differs between sites, but the – some of the fundamental differences here are that the – the elevations don’t give you an appreciation of – of depth of plane, such that when verandahs and – and walls are recessed, they don’t give you an appreciation for parallax or angle of view and what you might perceive from those different angles of view in terms of the transition down to the – the front – front of the street. They also don’t appreciate – in circumstances where you have a rather confined visual catchment and where you can’t view them from a long distance, the elevations aren’t read – the proposal isn’t read as the elevations are read, and the montages do a much more successful job.
And I take it that montages also include something near to your heart – the landscaping treatment included in the development?‑‑‑That’s correct. Yes. It can’t – the – the landscape treatment can’t be ignored, but it isn’t – it isn’t the gamut of the – the – the reason why I – I find the – the proposal acceptable.”
I accept the evidence of Mr Elliott with respect to the reliability of the photomontages. They provide a helpful demonstration of the proposed development in its final form from the identified vantage points.
The issues to be determined
The ultimate issue to be determined is whether the proposed development should be approved, approved subject to conditions or refused.[2] That decision is to be based on[3] an assessment carried out:
[2]Planning Act 2016, s 60(3).
[3]Planning Act 2016, s 59.
(a) against the assessment benchmarks applying at the time the development application was properly made;
(b) having regard to any matters prescribed by regulation;
(c) against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise; and
(d) giving the weight considered appropriate to any amendment to the assessment benchmarks.[4]
[4]Planning Act 2016, s 45.
The changes made to the development application at the commencement of the hearing have not allayed the Appellants’ concerns. Nevertheless, on the second day of the hearing, the Appellants abandoned a number of issues.[5] Still further issues were abandoned in the Appellants’ written submissions[6] and during the closing address.[7] In response to a request for submissions addressing other alleged non-compliances, the Appellants provided further written submissions in which they abandoned yet further issues.[8] Mr Wylie explained that the Appellants position was not a concession that there was compliance with particular provisions. Rather, the Appellants took the pragmatic, and commendable, approach that those provisions that remain would dictate the outcome of the appeal and, as such, it was unnecessary to litigate the issue of compliance with the other provisions.
[5]T2-65 – T2-66.
[6]Outline of Argument for the Appellants [14a)].
[7]T4-25.
[8]Supplementary Outline of Argument for the Appellants [2].
The remaining assessment benchmarks that the Appellants rely on to oppose the proposed development are:
(a) strategic outcome 3.5.1(1)(d) and specific outcome SO1 and land use strategy L1.2 for Element 5.6 Brisbane’s Greenspace System, each of which is contained in the Strategic framework;
(b) overall outcomes (1) and (4)(c) of the Low density residential zone code;
(c) overall outcome (3)(b) of the Ashgrove - Grange district neighbourhood plan code; and
(d) overall outcomes (2)(e), (g) and (h) and performance outcomes PO5, PO15, PO51 and PO52 of the Multiple dwelling code.
The Appellants contend that assessment against these assessment benchmarks demonstrates that the proposed development is of an unacceptable height, density, bulk and scale.
The Appellants also contend that the court should give weight to overall outcomes (4)(b) and (5)(a) of the Low density residential zone code in the current version of City Plan.
Aveo contends the court should have regard to the current lawful use of the premises. This is a matter prescribed by s 31(1)(f) of the Planning Regulation 2016 (Qld).
Aveo also contends the court should have regard to a number of relevant matters. They include amendments to the planning framework in City Plan proposed by the Council, the need for the proposed development, the absence of hard amenity impacts and the absence of unacceptable visual impacts.
It is Aveo’s position that although there is some departure from the assessment benchmarks in force at the time the development application was properly made, they do not warrant refusal when one has regard to the need for the proposed development and the Council’s proposed amendments to City Plan. Aveo submits that the proposed amendments to City Plan will remove the applicability of a number of the assessment benchmarks from which the proposed development departs and introduces other benchmarks that support the redevelopment of the existing retirement facilities as proposed.
It is the Council’s position that despite the proposed building heights that exceed those contemplated in the Low density residential zone, the proposed development is appropriate when one has regard to a range of relevant matters. The Council notes, in particular, the absence of tangible impact associated with the non-compliance. The other relevant matters referred to by the Council involve considerations of need for the proposed development; the fact that the Council has prepared relevant amendments to City Plan that are in the very late stages of implementation; and the application of sound town planning principles generally.
Aveo bears the onus of establishing that the appeal should be dismissed.[9]
[9]Planning and Environment Court Act 2016, s 45(2).
The assessment benchmarks
Version 3.01 of City Plan was in effect at the time the development application was properly made. Assessment of the proposed development must be carried out against that version.[10]
[10]Planning Act 2016, s 45(6).
The subject site is included in the Low density residential zone of City Plan. It is also included in the Ashgrove – Grange district neighbourhood plan area.
Pursuant to s 5.3.3(1)(d) of City Plan, impact assessable development must be assessed against all identified codes in the assessment criteria column (where relevant), as well as against the balance of City Plan, to the extent relevant.
The provisions of City Plan that the Appellants contend are of significance for the outcome of this appeal are identified in paragraph [55] above. Having regard to the identified provisions, the issues raised by the Appellants broadly relate to alleged non-compliances associated with:
(a) height;
(b) density, bulk and scale; and
(c) impacts on Balun Park.
Is there non-compliance occasioned by the height of the proposed development?
The Appellants allege that the height of the proposed development results in non-compliance with overall outcome (4)(c) of the Low density residential zone code, and overall outcome (2)(h) of the Multiple dwelling code. They relevantly provide as follows:
“6.2.1.1 Low density residential zone code
(4) Development location and uses overall outcomes are:
(c)Development for other housing types, being a residential care facility or retirement facility, which provides housing diversity and enables people to remain within their local neighbourhood throughout their life cycle, may be accommodated at appropriate locations where height is no greater than 1 or 2 storeys.”
9.3.14 Multiple dwelling code
(2)The purpose of the code will be achieved through the following overall outcomes:
(h)Development is of a height that is appropriate to the strategic and local context and meets community expectations consistent with the following:
(i) …
(viii) 2 storeys in the Low density residential zone.”
(emphasis added)
Aveo concedes that, by virtue of its height, the proposed development does not comply with overall outcome (4)(c) of the Low density residential zone code and overall outcome (2)(h) of the Multiple dwelling code.
The Appellants also submit that the height of the proposed development results in non-compliance with performance outcome PO5 of the Multiple dwelling code,[11] which states:
[11]The allegation that the height of the proposed development resulted in non-compliance with performance outcome PO52 of the Multiple dwelling code was abandoned during the closing address. The Appellants still allege non-compliance in the context of bulk and scale.
“PO5
Development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to:
(a) existing buildings that are to be retained;
(b) significant infrastructure or service constraints such as tunnels;
(c) existing and proposed building heights in the local area and street;
(d)adjoining buildings and separation of buildings necessary to ensure imp the impact of slope acts on residential amenity and privacy are minimised;
(e) the impact of slope.”
(emphasis added)
The Appellants submit “it is … patent that there is plain non-compliance” with performance outcome PO5. The Appellants submissions do not clarify how the height of the proposed development results in “plain non-compliance”. The evidence on which the Appellants rely does not clarify the basis for the submission.
Height is but one aspect that informs the bulk and scale of development. It is the bulk and scale of the proposed development that is to be consistent with the intended form and character of the local area, not its height alone. I will deal with compliance with this provision further below as part of the consideration of the bulk and scale of the proposed development.
Is there non-compliance occasioned by the density, bulk and scale of the proposed development?
The Appellants submit, in addition to height, the proposed buildings also have a bulk and scale that is discordant with the receiving environment, and the unambiguous scheme intentions for the locality. The Appellants allege that the density, bulk and scale is inconsistent with overall outcome (1) of the Low density residential zone code, overall outcome (3)(b) of the Ashgrove-Grange district neighbourhood plan code, overall outcomes (2)(e) and (g) of the Multiple dwelling code and performance outcomes PO5, PO15, PO51 and PO52 of the Multiple dwelling code. Those provisions state:
“6.2.1.1 Low density residential zone code
(1)The purpose of the Low density residential zone code is to provide for predominantly dwelling houses supported by community uses and small-scale services and facilities which cater for local residents.
7.2.1.4 Ashgrove / Grange district neighbourhood plan code
7.2.1.4.2 Purpose
(3) The overall outcomes for the neighbourhood plan area are:
(b)Low density housing will dominate outside of these corridors and will maintain identified housing and precincts of distinctive local character such as Ashgrovian housing and the Lind Street, Gray Street and Greene Street area at Newmarket.
9.3.14 Multiple dwelling code
9.3.14.2 Purpose
(2)The purpose of the code will be achieved through the following overall outcomes:
(e)Development has a bulk, scale, form and intensity that integrates with the existing and intended neighbourhood structure for the area as expressed by zone, zone precinct and neighbourhood plan outcomes, and is consistent with:
(i) the location and street context of the site;
(ii) its proximity to an activity centre, higher capacity public transport services, or other community facilities;
(iii) the capacity of infrastructure.
(g)Development in the Low density residential zone or Infill housing zone precinct of the Character residential zone includes a range of detached and attached building forms and is of an intensity that reflects the lower density form and character of these zones.
9.3.14.3 Assessment criteria
The following table identifies the assessment criteria for assessable development.
Table 9.3.13.3.A–Criteria for assessable development
Performance outcomes
Acceptable outcomes
PO5
Development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to:
(a) existing buildings that are to be retained;
(b) significant infrastructure or service constraints such as tunnels;
(c) existing and proposed building heights in the local area and street;
(d) adjoining buildings and separation of buildings necessary to ensure the impacts on residential amenity and privacy are minimised;
(e) the impact of slope.
AO5
Development is contained within the building envelope for the site created by applying:
(a) the maximum building height in Table 9.3.14.3.B;
(b) front, rear and side boundary setback requirements in Table 9.3.13.3.C;
(c) car parking boundary setback requirements in Table 9.3.13.3.E;
(d) building separation requirements in Table 9.3.13.3.F;
(e) acceptable outcomes for building height transition where required.
Refer to Figure b and Figure c.
Note-This acceptable outcome can be demonstrated by the preparation of a building envelope plan, elevations and sections.
PO15
Development has a building depth and form that must be articulated to:
(a) ensure that the bulk of the development is in keeping with the form and character intent of the area;
(b) provide adequate amenity for building residents in terms of natural light and ventilation
(c) provide opportunities for dual aspect dwellings.
Refer to Figure k.
AO15.1
Development where in the Medium density residential zone, Low-medium density residential zone, in the Infill housing zone precinct of the Character residential zone or Low density residential zone, the maximum length of a wall in any direction is 30m with substantial articulation provided every 15m.
Note—Substantial articulation is a full building separation of 6m or a change in building line of plus or minus 2m for a length not less than 5m.
AO15.2
Development where in the High density residential zone, the maximum length of a wall in any direction is 50m with substantial articulation provided every 15m.
Note—Substantial articulation is a full building separation of 6m or a change in building line of plus or minus 2m for a length not less than 5m.
PO51
Development in the Low density residential zone supports neighbourhood structure, and a lower intensity residential character and integrates with adjoining sites through:
(a) a mix of dwelling types and building forms such as freestanding dwelling houses and townhouses;
(b) dwelling houses addressing existing streets;
(c) the proportion of dwelling houses increasing for larger sites;
(d) connection to the existing or proposed local street and park network;
(e) legible and direct pedestrian and cyclist access to surrounding and future community facilities in the area such as schools, parks, neighbourhood shops and public transport;
(f) appropriate development interfaces to side boundaries and adjacent sites;
(g) new public roads and parks as appropriate to the scale of the site.
Refer to Figure a.
AO51.1
Development is not vertically stacked in an apartment form but is attached or freestanding and visually recognisable as such, by variation in the dwelling size, materials, textures, colours and built form features.
AO51.2
Development in the form of a free-standing dwelling house is located on an existing street frontage and provides a transition to adjoining dwelling houses.
AO51.3
Development provides connections to existing road, park and pathway networks.
AO51.4
Development is within 60m of a public road.
AO51.5
Development applies rear boundary setback requirements to side boundaries.
AO51.6
Development on sites of 7,000m2 or greater:
(a) includes public roads, spaces or footpath connections in accordance with a neighbourhood plan;
(b) is not gated.
If in the Low density residential zone or the Infill housing zone precinct of the Character residential zone
PO52
Development in the Low density residential zone or the Infill housing zone precinct of the Character residential zone respects the intensity and form of the neighbourhood and demonstrates an appropriate site density.
AO52.1
Development in the Low density residential zone does not exceed 1 dwelling per 200m2 of site area.
AO52.2
…
(emphasis added)
The Appellants rely on five observations in support of their submissions.
First, building ILU D has a length of some 75 metres from north to south.
Second, in cross-examination, Mr Peabody accepted that the appearance of the proposed development would be quite different in bulk and scale to the detached houses to the east of Free Street.
Third, buildings ILU E and F have lengths addressing Balun Park of approximately 55 metres each, and buildings ILU C, ILU A and building 1 similarly have lengths of approximately 60 metres.
Fourth, Mr Perkins readily accepted, both in the joint expert report and in cross-examination, that the proposed development was not low rise or low density. He also confirmed that the proposed buildings will be significantly larger than what is currently on site and would be significantly larger than surrounding development.
Fifth, in cross-examination Mr Gaskell confirmed that the form of development could not be described as small-scale, low density or low rise, and described the development as being “medium-rise”.
The Appellants submit, “Without more, the proposed development would result in non-compliance with density, bulk and scale provisions of City Plan.”
This submission ignores that the provisions relied on by the Appellants call for an evaluative judgment, not just a quantitative analysis. I will consider each of them in turn now.
Overall outcome (1) of the Low density residential zone code
The Appellants’ written submissions emphasised the reference to “small-scale services and facilities”.
The Appellants’ submissions do not identify any plainly identified non-compliance with this provision. The provision does not contain a requirement with which each development in the Low density residential zone must comply. Rather, it outlines the purpose of the code.
Overall outcome (1) does not prevent development that is not low density residential uses. It specifically contemplates community uses; small scale services which cater for local residents; and facilities which cater for local residents. This is apparent when the provision is read in context. Two pertinent observations can be made in that regard.
First, s 6.2.1.1(3) of the Low density residential zone code explains that the purpose of the code will be achieved through the overall outcomes.
Second, overall outcome (4)(c) specifically contemplates development for a retirement facility. It contains a limit on height, but it does not purport to give any direction as to the scale of such uses in the Low density residential zone. In that respect it can be contrasted with overall outcome (4)(h), which speaks of “small-scale non-residential uses” and stipulates a gross floor area of less than 250 square metres.
As I have already noted in paragraph [68] above, Aveo concedes that the proposed development does not comply with overall outcome (4)(c) of the Low density residential zone code. There is no other allegation of non-compliance with overall outcomes of that code.
Approval of the proposed development, despite the non-compliance with overall outcome (4)(c), would not prevent the Low density residential zone in this area providing for predominantly dwelling houses supported by community uses and small-scale services and facilities which cater for local residents.
Overall outcome (3)(b) of the Ashgrove-Grange district neighbourhood plan code
The Appellants submit if the proposed development is approved, low density housing could not be said to dominate the part of Free Street opposite the proposed development. The Appellants note that Mr Gaskell accepted as much during cross-examination.
Overall outcome (3)(b) of the Ashgrove-Grange district neighbourhood plan code should be considered in the context of overall outcome (3)(a). Overall outcome (3)(a) refers to development being underpinned by regionally significant transport infrastructure, focused along the Ferny Grove railway corridor, Enoggera Road and Waterworks Road. They are the “corridors” referred to in overall outcome (3)(b). Low density housing is to dominate outside of those areas.
In his closing address, Mr Wylie submitted that in this case the relevant area to be considered should be limited to the part of Free Street opposite the development and also the part of the Balun Park from which the development is observable.
I reject Mr Wylie’s submission. It is not supported by the words of the provision, and Mr Wylie did not identify any principle of statutory construction to support the submission. He also did not identify any sound town planning reason to construe the provision in such a narrow manner. None of the town planning experts opined that the provision should be approached in that way.
The provision expresses an objective or general principle. It does not use words of prescription or proscription. It is one of broad and general application that gives great flexibility to the Council when approving developments.[12]
[12]See Gracemere Surveying and Planning Consultants Pty Ltd v Peak Downs Shire Council & Anor [2009] QCA 237; (2009) 175 LGERA 126.
The proposed development is not a use that is intended to dominate, but it is not expressly excluded. Approval of the proposed development could not be said to have the result that low density housing would not dominate outside the identified corridors, nor in this particular locality.[13] It will not change the current predominance or otherwise of detached houses in the locality, given the existing use.
[13]See paragraphs [15] to [22] above.
Multiple dwelling code
The Appellants rely on those matters referred to in paragraphs [74] to [79] in support of their allegation of non-compliance with overall outcomes (2)(e) and (g) and performance outcomes PO5, PO15, PO51 and PO52 of the Multiple dwelling code.
The Appellants focus is on a quantitative comparison of the length of some of the proposed buildings to the bulk and scale of the detached houses to the east of Free Street, as well as a quantitative comparison of the density of the proposed development to that presently on site and in the surrounding development.
The requirements contained in these provisions are not set by reference to metrics, rather they require a qualitative consideration of the proposed development.
Overall outcome (2)(e) of the Multiple dwelling code
Overall outcome (2)(e) of the Multiple dwelling code requires the proposed development to have a bulk, scale, form and intensity that integrates with the existing and intended neighbourhood structure for the area as expressed by zone, zone precinct and neighbourhood plan outcomes. It also requires the bulk, scale, form and intensity to be consistent with the location and street context of the site, its proximity to an activity centre, higher capacity public transport services, or other community facilities, and the capacity of infrastructure.
As I have already identified, the intended neighbourhood structure for the area expressed in the zone code and neighbourhood plan outcomes is not exclusively low density residential housing. The zone contemplates the provision of development with the bulk, scale, form and intensity associated with retirement facilities, albeit at a height of no more than one to two storeys.
The existing neighbourhood structure, including the location and street context of the subject site, are described in paragraphs [15] to [22] above.
Having regard to the matters outlined in paragraphs [36] to [52] above, I am satisfied the proposed development involves a well thought out design that achieves the outcomes sought with respect to integration and consistency with location and street context. The photomontages prepared by Mr Elliott demonstrate this well. The proposed development only adjoins detached housing on one boundary. It provides appropriate transitions to surrounding built form. It will sit in a well landscaped setting.
The subject site’s proximity to centres and public transport services is outlined in paragraph [19].
In my view it is not axiomatic that the closer a retirement facility is to a shopping centre, the easier it is for residents to access it. This point was highlighted well during Mr Wylie’s cross-examination of Ms Wells (the retirement and aged-care consultant retained by Aveo). I note, in particular, the following exchange:[14]
[14]T2-36/L24-32 and T2-37 – T2-38/L35.
“Now, a recurring theme of the larger developments – and when I say “larger developments”, I’m talking about developments of more than 150 units – is that they’re extremely close to either a supermarket or a shopping centre; would you accept that?‑‑‑Not necessarily. I think some are, some aren’t.
But if we can take, for example – are you familiar with the WMB Wheller On The Park development?‑‑‑Yes, I am.
…
MR WYLIE: Ms Wells, it is the case that this development is directly opposite the Chermside shopping centre?‑‑‑That’s correct.
And so, compared to the subject site, it would be much easier for residents to access services associated with the shopping centre?‑‑‑I would not agree with that. I actually know this development quite well and work for this provider, and many of the residents in the retirement village there are quite frail aged and need assistance to get across to that shopping centre. So I think it doesn’t necessarily matter whether the shopping centre is located next door or a kilometre down the road; it’s about: that’s the shopping centre that’s familiar to people. Most people will still need, as they age, some assistance to access these services. Some people may be able to access them on their own, and some people may need assistance to access the services. So I understand that crossing that road can be quite scary for a number of frail aged people.
But for many – you said before that there’s going to be a range of mobility – within the patrons, they’re going to have ranges of mobilities?‑‑‑They have ranges in mobilities, yes.
And there are people that are living here that would be able to access that Chermside shopping centre quite easily?‑‑‑There would be, but I think, equally, just as there would be able to who would be able to access the shopping centre at Newmarket as well. So you have people that are very mobile, and people that are very frail and need assistance. So you have a range of people for any development.
Ms Wells, are you suggesting that many people will be able to walk the 800 metres from the proposed site to the Newmarket shopping centre?‑‑‑I’m not suggesting that many will be able to. I don’t know, because I don’t know what the resident profile will look like, but it is my experience that there will be a combination of people who would be able to do it and who would not be able to do it; just as, in Wheller Gardens, there would be a combination of people who can cross that road and can’t cross that road. If people have slight dementia, that road is an inappropriate road for somebody to cross from a retirement village without assistance.
But you’d certainly accept that, for some residents with reasonable levels of mobility, the closer they are to a shopping centre, the better. You’d accept that?‑‑‑No, I wouldn’t accept that.
Okay?‑‑‑I’d accept that they could walk – maybe walk to it, but it doesn’t mean that it’s better.
Well, it means that they’re not reliant upon other people, such as a community bus. It means that they can be more independent, doesn’t it?‑‑‑For some people, that might be the case. I don’t think in the main, no.
That might be quite important to them, wouldn’t it?‑‑‑For some people, that might be important.
And for those people that it is important, being within 100 to 200 metres of a shopping centre may make life a whole lot better, wouldn’t it?‑‑‑For some people, that’s what they might choose.
Yes?‑‑‑But I’m saying, I think that would be a smaller number of the resident population rather than a majority.
But for that smaller number, it would make a difference?‑‑‑It may make a difference.
So your is evidence that it makes – you’re unable to form any opinion as to whether or not it’s better to be closer to a shopping centre or not?‑‑‑I think it’s important that you have access to a shopping centre.
Yes?‑‑‑The proximity of it is – whether it’s across the road or 800 metres down the road, I don’t think is as important, because people will access that shopping centre in many ways. There could be people who are quite mobile that don’t want to cross a busy road, just as there are people who are quite mobile who don’t want to walk down the road to a shopping centre in the heat, for instance. So I think it is a range of people in a retirement village, and so long as they can access the shopping centre that’s familiar to them and known to them, that’s what’s important.
Access to a shopping centre from the proposed site will be difficult for many, won’t it?‑‑‑I don’t think so, no.
Is that because of the bus?‑‑‑That can be a bus, that can be because of their home care help, that can be because of their family, it can be because of their friends. It can be exactly the way they might access it in their current residential home before they move into the retirement village.”
The traffic engineers also considered it relevant that the proposed development includes a range of community facilities on-site for use of residents and guests. Those services include a gym, health and wellness centre with attached change-room, bathroom and multi-purpose area, lounge and games area, café, cinema, business centre, meeting rooms and consulting rooms for visiting health professionals.
Having regard to the evidence of Ms Wells and the traffic engineers, I am satisfied that the proposed development, while having a greater intensity than that predominantly sought for the Low density residential zone, is consistent with the subject site’s proximity to centres and public transport services. As was noted by Mr Perkins, the larger scale of the retirement facility enables the provision of a community bus.
Dr Johnson gave evidence about the infrastructure capacity, other than that related to traffic. He was not required for cross-examination. Dr Johnson’s report provides a cogent analysis with respect to infrastructure capacity and he opines that there are no engineering infrastructure or flooding and drainage issues that warrant refusal. He says the civil engineering aspects of the proposed development are straight-forward and non-controversial. I accept his evidence.
With respect to traffic engineering infrastructure, both traffic engineers (one retained by Aveo and one retained by the Council) agreed daily traffic volumes would remain within acceptable parameters on the local streets near the subject site. They also agreed that the proposed development will not have unacceptable impacts on traffic and parking for local residents and users of the neighbourhood.
In 25 years-time, Australia will need four times the amount of aged care accommodation now available, a trend that will almost certainly be mirrored in Brisbane.”
(emphasis added)
Mr Duane opines that, consistent with the trend recognised in the Taskforce report, inner-suburban areas have experienced a sharp decline in the number of over 65-year-old residents between 2011 and 2016. This reflects the high cost to accommodate elderly persons in inner-city areas, pushing residents to relocate from those communities. This opinion was not challenged, and I accept it.
Mr Duane also opined that there are many challenges facing the provision of suitable facilities to accommodate the elderly. The Australian population is ageing and the number of residents requiring aged-care and retirement facilities will increase substantially over time. Many Australians wish to age-in-place within the communities they have lived in most of their lives. There are increasing expectations around the standard of living for older people as the “baby boomer” population ages. This will likely impact on the size, location and quality of aged care developments sought to be provided and support services likely to be included in new facilities. However, supplying affordable accommodation is difficult, particularly the provision of quality accommodation in highly sought-after areas. There are constraints to supply due to a number of issues, including planning and financial issues. These constraints are particularly relevant in inner-city areas, where the value of land has resulted in higher density development targeted at a younger population. Mr Duane’s opinion in this regard was unchallenged and I accept it.
In my view, the provision of adequate facilities for the purpose of aging in place are of significant importance to the community. They are critical to the wellbeing of an important group in the community. The need for retirement facilities, in light of the absence of specific provisions directed to facilitating their provision, is a compelling matter favouring approval of the proposed development.
The Appellants submit, in addition to need for the development being a relevant matter, it is a relevant matter to consider that a smaller form of development could satisfy the need. In this context, the Appellants rely on four matters.
First, the Appellants refer to evidence given by Mr Peabody. In his supplementary report, Mr Peabody notes that a development of the subject site limited to two storeys would result in a loss of 126 independent living units, leaving a development with 129 independent living units. He also accepted during cross-examination that there was no reason why a development of that nature and scale could not be designed and constructed.
Second, the Appellants refer to the evidence of Mr Kordic. He confirmed in cross-examination that Aveo has not undertaken any analysis of options to refurbish the existing facility. He accepted that Aveo currently operate facilities with between 100 and 150 independent living units, and that they can still be functional and suitable.
Third, the Appellants refer to evidence of Mr Duane and Ms Wells to the effect that there are suitable retirement facilities being constructed in a “horizontal” form.
Fourth, the Appellants rely on the evidence of Ms Wells that, while a larger facility would offer a greater range of services and facilities, an appropriate level of service can be provided to facilities with between 100 and 150 independent living units. They submit a more modest development could fulfil all of the functional requirements of a facility proposed by Aveo.
I do not regard the Appellants submissions as persuasive for four reasons.
First, Mr Peabody is an architect. His evidence is to be understood as such. His opinion is not a reflection on whether it is economically feasible to demolish the existing facility and re-develop the subject site with a more limited facility.
Second, the Appellants submissions misstate the overall effect of Mr Kordic’s evidence.
Mr Kordic’s evidence on refurbishment during cross-examination was as follows:
“Renovation of aging retirement facilities must be a common recurring activity within your industry, is it not?‑‑‑It is. So we – when a resident leaves they are reinstated often, which would mean retiling and repainting and things. The amount of work those units need to bring them up to a modern standard is substantial.
Yes?‑‑‑And the community facilities is – is – I’m not sure how you’d update that currently.
But, with respect to the units, there’s no reason why they couldn’t be renovated, is there?‑‑‑It would almost be easier to knock them down and build them again because there’s steps and thresholds all the way through. You would have to look – like, they need new kitchens, new bathrooms, new steps, concrete [indistinct] they would take a lot of work. It’d probably be almost as cheap to build a new one.
But it’s not something that you’ve analysed at this stage, is it?‑‑‑No, we haven’t analysed completely renewing the units.”
Mr Kordic’s evidence on the possibility of smaller facilities during cross-examination was as follows:
“Accepting, as you say, that more residents means more options, the fact remains that it’s still – Aveo can operate functional and high quality residential facilities with between 100 and 150 units, can’t they?‑‑‑They can. But they will have a smaller social aspect and a smaller care perspective and possibly higher costs associated with that, and that’s cost to the resident too, not Aveo because the residents have to pay for those services as a pool-type system.”
The impact of undertaking a refurbishment rather than the proposed facility was further clarified by Mr Kordic in re-examination as follows:
“Mr Kidic, my learned friend put a suggestion to you, which you rejected, that you could refurbish the existing units. Can I just ask you this. If you refurbish the existing units, would that address the level changes across the current site at Newmarket?‑‑‑No, it wouldn't. What you'd have is a new unit sitting in a substandard relationship to the other units and to the community centre.
Would it provide all-weather access to garages?‑‑‑No, it wouldn't.
Would it provide a range of the different types of units which both you and Ms Wells, I think, have spoken about? That is, one, two and three-bedroom configurations?‑‑‑No, they would be predominantly exactly the same design.
Would it provide the type of communal areas, including wellness areas, hair salons, medical consultation, fitness centre, swimming pool?‑‑‑No, it wouldn't, and there wouldn't be enough people there to actually pay for the running costs of those, even if you did put them in.”
Ms Wells gave similar evidence of the difference between the proposed development and a smaller development. During examination in chief, she said:
“MR HUGHES: And the final question I wanted to ask is, if we go to page 9 of your report, exhibit 10, in paragraph H, you say that to maintain the vibrancy of the amenities – and you’ve set out a number of the amenities in your report – at a retirement village requires a reasonable intensity of development. Can you explain what you meant by that?‑‑‑What I mean is scale – to be able to provide quality independent living that enables ageing in place, we need a whole range of services to be delivered to do that. So scale gives us great access to services. It gives us reduced-cost services. It gives us diversity of choice, and importantly, it provides a lot of opportunities and efficient service delivery. So an example would be the more residents you have – and I have witnessed this in many retirement villages – the more residents you have, the more diverse the social programs and interests might be. It means that you’ll be able to access a lot more social programs rather than a restrictive range of social programs. You’d be able to find people that had the same interests as you in those programs. It also means that there would be more volunteers volunteering to deliver services to assist their neighbours, to help them age in place. It provides a bigger community to provide all those services. It also means that you would be able to have diversity of choice by a range of doctors visiting, or doctors visiting more frequently to the site. So giving people choice in times and access to things. It also means that you may be able to have a chef on site to deliver food in the cafe, and that may be full time, rather than perhaps not being able to have one at all, or only having one one day a week. It also means that you could deliver care more efficiently. So the more the scale of the village, the more residents, it means that you could have somebody on site to be able to deliver care services, and it would be a 24/7 arrangement. So it just provides that scale to deliver more services, more efficiently, with a large range of diversity of choice.
Finally – based on your experience, 255 independent living units, perhaps averaging, as it develops, 1.3 persons per unit, does that give you a sufficient scale to expect that variety of services, the extended services you’ve spoken about?‑‑‑Yes, it does, and it would be my experience that, in the larger retirement villages, there is that vibrancy and people are able to access what they want in modern retirement villages because of that level of scale.”
(emphasis added)
The importance of a facility of a scale to provide a range of services was explained by Ms Wells during cross-examination as follows:
“With respect to ageing in place – Aveo and other providers do offer facilities that provide residential care as well as retirement living, don’t they?‑‑‑Yes, they do.
And this development is not going to be providing that service, is it?‑‑‑This development, by being a modern ageing-in-place environment, will be able to replace residential aged care for many of its residents. It will not be able to replace residential aged care for all of its residents, but an older facility is unable to do that, but a new facility is able to do that. The expectation of the modern consumer is that they can age in place to high levels, and increasingly, in line with policy direction, we’re going to see that people want to be able to age in place in the retirement villages and will expect to do so. But we need modern environments to enable that to happen.
…
You’d expect, for the larger developments, that it would be more appropriate to have that advanced care as part of the same development, wouldn’t you?‑‑‑No, I would not. Not necessarily. Most – look, to be honest, most seniors – nobody chooses to access residential aged care. It normally happens in a crisis situation, where people go off to hospital and they can’t go home again. If you have a modern retirement village that enables this ageing in place and has the scale of services, when somebody goes off to hospital, and they’re in something like a modern retirement village that has those services, they can go back home again, because the services are in their home, whereas they can’t necessarily go back to a residential home in the suburb; they would then have to go to residential aged care. So having this sort of development with the level of services would enable people to, perhaps for many people, never access residential aged care that otherwise perhaps would’ve accessed residential aged care. It can be as simple as having a fall in your home because your home isn’t designed to age in place – it has trip hazards, etcetera, that will send you to hospital and then residential aged care. These buildings are designed to minimise such risks.”
(emphasis added)
Ms Wells also gave evidence as follows:
“But you would – do you accept that the way that the Commonwealth is moving is that they’re more willing to provide service or trying to provide service to people wherever they live?‑‑‑That’s correct. If – if – however, those level of services can only provide so much service in a person’s home. A person’s home doesn’t have access to health and wellbeing onsite. It doesn’t have doctors visiting onsite, dental visiting onsite, allied health onsite – it doesn’t have those things in somebody’s residential home. So it can only enable a person to age in place to a certain level.”
(emphasis added)
The facility proposed is one that provides a particular level of service, including access to health and wellbeing onsite. Having regard to the evidence of Mr Kordic and Ms Wells identified above, I am not persuaded that a more modest development, in horizontal form or otherwise, could fulfil all of the functional requirements of the facility proposed by Aveo or address the need identified by the experts.
Sound town planning principles including absence of tangible impact
The Council submits the following sound town planning principles, referred to by Mr Perkins and reflected in the opinions expressed by Mr Gaskell, are supportive of approval of the proposed development.
(a) The provisions of City Plan with which there was conflict did not reflect the importance of providing aged care accommodation in locations that are appropriately serviced in accordance with the State Planning Policy.
(b) The site is exceptionally large given its location in close proximity to the CBD, and within the inner-city area of Brisbane. It is therefore one of a very limited number of sites of that size that are physically suitable for the proposed development.
(c) The site is currently used for a retirement facility, and the proposed development provides for the redevelopment of the existing facility that is dated in form, materials, fencing, design and environmental performance.
(d) The proposed development provides for an appropriate co-location with the park, and provides opportunities for surveillance, use and potential embellishment.
(e) The scale of the proposed development provides an ability for it to support a range of facilities and services not currently available to residents, and not capable of being provided given the existing low density and development form.
(f) The South East Queensland Regional Plan 2017 and State Planning Policy 2017 are not appropriately reflected in City Plan.
(g) There is a demonstrated need for the proposed development, and a lack of suitably zoned land in the locality generally, and in a higher density residential zone specifically, which is able to cater for the identified need.
(h) The proposed development is consistent with the Strategic framework, read as a whole.
(i) The proposed development can be established on the subject site without causing unacceptable impacts on the residential amenity of existing residents of the locality.
(j) There are positive planning benefits to be derived from the timely provision of a conveniently located retirement facility. They include creating an enhanced sense of community and a well serviced community.
(k) The proposed amendments to City Plan express the Council’s preferred statutory approach to give effect to its “well-telegraphed policy” promoting the development and aged care housing in Brisbane.
I accept the opinions of Mr Perkins and Mr Gaskell in this regard. These are relevant matters that sound in favour of approval of the proposed development.
Conclusion
For the reasons set out above, Aveo has discharged the onus and the appeal will, in due course, be dismissed.
I will give the parties an opportunity to formulate an agreed suite of conditions of approval and order as follows:
(a) By 4 pm on 13 March 2019, the Respondent is to deliver a draft suite of conditions to the other parties.
(b) The appeal be listed for review at 9.15 am on 27 March 2019 either for the purpose of making final orders in the appeal or, failing agreement between the parties, for the purpose of making directions to facilitate the resolution of any dispute with respect to the suite of conditions of approval.
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