Ward & Associates Pty Ltd and Buckley Vann Town Planning Consultants v Brisbane City Council and Ziegenfuz

[2002] QPEC 9

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ward & Associates Pty Ltd and Buckley Vann Town Planning Consultants v Brisbane City Council and Ziegenfuz [2002] QPEC 009

PARTIES:

WARD & ASSOCIATES PTY LTD
AND   BUCKLEY VANN TOWN             
PLANNING CONSULTANTS  Appellants
And
BRISBANE CITY COUNCIL  Respondent
And
JILL ZIEGENFUZ  
  Co-Respondent

FILE NO/S:

2976 of 2001

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

13 March, 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5-7 December, 2001

JUDGE:

Judge Quirk

ORDER:

The appeal is allowed

CATCHWORDS:

Integrated Planning Act ss.4.1.52, 4.4(5)&(5A), 6.1.30(3)(b)

COUNSEL:

Mr B.Cronin for the appellants

Mr T. Trotter for the respondent

SOLICITORS:

Corrs Chambers Westgarth for the appellants

Brisbane City Legal Practice for the respondent

1. This appeal is against the respondent’s refusal of an application for planning approval for development of an area of land at Hendra. As can be seen from the material, the land is quite irregularly shaped and, for a developer, the site is not an easy one.  To the north it adjoins the limited access way of the east-west arterial road.  To the east it borders Hedley Avenue and an established industrial area .  A channel which drains (to Schulz Canal) a wider area to the southwest of the subject land separates a relatively small part of it (which fronts Hedley Avenue) from the balance area.  Immediately to the south of the bulk of the subject land is the recently developed Tea Tree Grove estate.  To the northwest a narrow tongue of land leads past the playing fields of the Hendra Secondary College and meets Widdop Street. 

1. The development application sought approval for material change of use and reconfiguration of the subject land to:

·   Create proposed Lot 400 for park purposes (area 2.887 hectares).

·   Create proposed Lot 300 (area 5844 m²⁾ for industrial purposes with frontage and access to Hedley Avenue.

·   Create Lot 200 (area 5.444 hectares) to provide for a community title scheme comprising 118 dwelling units in the form of 42 detached houses, 4 duplex houses, 17 attached houses, community facilities and manager’s residence.

·   Provide for access to the site through the adjoining Tea Tree Grove residential estate.  This will involve acquisition of a small part of that estate to provide frontage to McIntyre Street.

1. A plan of development indicates the location of the various elements of the proposal including the intended parklands which include a combined pedestrian/bicycle and emergency access way.  Vehicular access to the estate will be to McIntyre Street.

1. The Council’s disinclination to support the proposal (at least that part of it which involves residential development) appears to have been influenced to some extent by the history of the subject land.  In October 1995 an application was made to include the land in the General Industry zone.  The application was withdrawn following public notification.  In December 1991 an application to rezone the land to the Light Industry zone was conditionally approved.  An appeal was lodged in respect of some of the conditions of approval but remains undetermined.

1. It was explained, through its Planning Consultant Mr Dennis Brown, that the Council would prefer to see the land developed for industrial purposes and access to and from it be via Hedley Avenue.  It was believed desirable that the Tea Tree Grove development be the northern limit of residential development in this area.  It was said that, had residential development of the subject land been contemplated, greater connectivity through the Tea Tree Grove Estate would have been required at the time of approval of that development.

1. While one can see some planning force in these suggestions, the position is that the land owner wants to develop the land in a manner reflected by this proposal.  Whether he should be allowed to do so must be decided by reference to the law which governs the matter (in particular the formal instruments of planning control) and the merits of the case.

1. The application was lodged in February of 2000. At the time the 1987 Town Plan was in force. The Town Plan was a “Transitional Planning Scheme” within the meaning of Chapter 6 of the Integrated Planning Act.  Accordingly s.6.1.30(3)(b) of the Act requires that the application (being one for which a rezoning would have been required under the repeal legislation) must be decided under s.4.4.(5) and in (5A) of that legislation.

1. Under the Town Plan, the bulk of the subject land was included in the Non-Urban zone. In October of 2000 the City Plan was introduced . Section 4.1.52 of the Integrated Planning Act requires that the Court:

“Must decide the appeal based on the laws and policies applying when the application was made, that may give weight to any laws and policies the Court considers appropriate.”

1. In the City Plan, the site is primarily included in a Rural area though the proposed access driveway through the Tea Tree Grove Estate is included in a Low Density Residential area.

1. In the 1987 Strategic Plan the land was designated Urban.  In the current Strategic Plan it is included in the Residential Neighbourhood designation.  Aside from the matter of “connectivity” to which attention must be given, there is nothing in the provisions of the existing and superseded planning schemes relating to those zonings or designations which would appear to stand in the way of the proposal’s approval.

1. Mr Brown, in his evidence, drew attention to certain passages of the planning documents which call for residential development of this kind to be properly integrated with and not separated from existing surrounding development.  The matter of “connectivity” was clearly an issue in the appeal and the subject of extensive debate.  Other issues raised included:

·     The adequacy and utility of the land to be set aside for park purposes.

·     Where the proper attention had been given to social planning issues including crime prevention through environmental design.

1. While there is no question that the passages in the planning documents to which Mr Brown referred call for an appropriate level of convenient and safe accessibility, the extent to which this should be achieved if a proposal is to be approved, remains a matter of judgment.

1. It is quite true that, in the planning scheme reference is made to the desirability of an estate’s being connected to and part of its neighbourhood rather than being a separate and semi-private enclave.  The extent to which this is able to be done depends largely on the physical characteristics of the site which dictate, to a substantial extent, the manner in which these objectives may be implemented.  Little difficulty is presented when one is dealing with a “green fields” area but such is not the case here and the physical constraints of the site have already been referred to. 

1. Nevertheless, as mentioned, by arrangement with the proprietors of the Tea Tree Grove Estate, a small portion of that land will be required to provide a vehicular connection to McIntyre Street.  A pedestrian and cycleway will lead from Widdop Street across the strip of land adjoining the playing fields to eventually link up, through the proposed parkland, to McIntyre Street.  The link to Widdop Street is also to be capable of providing emergency vehicle access.  A further pedestrian link to parkland leading to “The Avenues” Estate will be available.

1. In my view of the evidence, to describe the proposal as an isolated, separated or semi-private enclave is a little extreme.  It seemed to be suggested, in this context, that had vehicular link to Pring Street been present, the perceived difficulties might have been overcome.  What real difference, in a practical planning sense, this would have made for either the residents of the estate or those of the surrounding area is not easy to see.  As was pointed out numerous comparable situations can be found in other parts of the city where no real social disadvantage is apparent.  On this point Mr Priddle was satisfied that the proposal represents a satisfactory planing result and I prefer his view.  I find that lack of connectivity does not provide a sufficient basis for rejecting the proposal.

1. Adequacy and suitability of parkland was made an issue.  That land allocated for park and open space purposes can serve a wide range of functions hardly warrants explanation.  As well as providing visual relief, active and passive recreational opportunities it may be useful to the community in a variety of ways.  In this case some 32% of the site area is intended to be given over for park purposes.  As well as providing a through link from McIntyre Street to Widdop Street and the Toombul Shoppingtown which is a short distance beyond, the area to be dedicated will:

·     Secure and preserve an areas to the north-east of the site which is said to have the attributes of a wetland (this was a matter to which considerable importance appeared to be attached in the pre-lodgement negotiations.

·     Secure and rehabilitate an area through which an existing open drain passes and which serves an area far wider than the immediate area including the subject land.

·     Provide a variety of smaller recreational and parkland areas which will have a buffering function in respect of the arterial roadway and the adjacent industrial uses.

1. In his evidence (see Part 7.1 of his report Exhibit 4) Mr Priddle went through those parts of the planning document which refer to the provision of parkland and demonstrated the proposal’s consistency with them.  He concluded that what is here proposed will be entirely suitable for its intended use and will cater for a diversity of functions commensurate with the needs of the local community.

1. Criticisms levelled at the intended parkland were somewhat lame.  It was pointed out that part of it might be subject to flooding.  At such times much of the adjoining area (including the parking area of Toombul Shoppingtown) would be inundated and the need for a throughway for cyclists and pedestrians would be marginal.  It was suggested that the cycleway was somehow insufficiently convenient or safe (being too close to fencing) but, as was pointed out, if this is so (and it is not at all clear that it is) it is readily capable of correction.

1. It was said that the proposed parkland would be subject to noise from the arterial road.  That may be so but in this context its value as a buffer must also be remembered and its role has never been intended to be that of a haven of tranquillity.  Assertions that the parkland would be difficult to maintain lost a great deal of momentum as the evidence unfolded as did concerns the drainage path might be prone to siltation when it was remembered that this drain serves a wide area and its maintenance is, in any event, clearly a community responsibility.

1. Mr Chenoweth, a Landscape Architect and Town Planner with particular expertise in environmental matters, was satisfied with the proposed parkland as such and made the following points:

·     The linear open space, with opportunities for safe walking, cycling, exercising dogs and garden strolling around an attractively landscaped wetland, together with the existing and proposed recreation facilities available within easy walking distance, will meet the needs of the residents of the proposed development.

·     The proposed parkway through landscaped open space is also likely to benefit the residents of adjoining areas, and may find the additional opportunities convenient for recreational or access purposes.

·     Other parts of the proposed open space area have been designed for functional purposes of drainage, wetland and screening, these areas would also add topographic variety and visual interest.

·     Together with other nearby park and recreation opportunities including both public and private facilities, the leisure needs of the future residents of the proposed development will be well catered for.

1. Mr Chenoweth concluded that the open space, recreation and landscape aspects of the proposed development were satisfactory and met appropriate performance requirements for approval.  I accept his evidence I and would not rule against the proposal on the ground of inadequacy or utility of the provision of parkland.

1. The final issue that was pursued with any real vigour was that of public security.  It is perhaps an unfortunate reflection on society that it seems now necessary in town planning to take the likelihood of criminal and anti-social activity as a given.  The Council now has a Local Planning Policy (19.20) and a draft Crime Prevention Through Environmental Design (CPTED) Policy which deals with the matter of public safety.

1. For the respondent the matter was considered at great length by Dr Sarkisian whose detailed examination is found in Exhibit 14.  I respect her efforts and the trouble to which she has gone to identify areas of possible concern.  However the matter was also considered by the experienced practitioners Messrs Priddle and Chenoweth who, for the reasons which they explained, concluded that the easily accessible areas of parkland have been sufficiently designed for safety and surveillance.  Every possible measure has been taken and the design of the landscape, the relationship between buildings and open space to incorporate the principles of CPTED, consistent with Brisbane City Council draft policy.  The proposed development will also assist CPTED with respect to the adjacent and secondary college grounds, through public use, lighting and the maintenance of the existing unkempt area along the college’s northern and north-eastern boundary fence lines.

1. The difference in the competing approaches was, in my appreciation of the evidence, attributable to the more conservative approach of Dr Sarkisian and the more practical and even-handed assessment of Messrs Priddle and Chenoweth.  I would not wish to be seen as playing scant regard to the matter of public safety and I respect the efforts of the planning authority to see that it is a matter which is given appropriate attention.  However a fair and just result for all concerned is called for and I am satisfied that the appellant has made out a sufficiently strong case on the issue of pubic safety.

1. On the whole of the evidence I find that the onus of showing that the application is one which should be approved has being discharged.  The appeal will accordingly be allowed.