Woodhead v Brisbane City Council
[2006] QPEC 92
•8/09/2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
| CITATION: | O’Kelly v Brisbane City Council & Anor |
| Woodhead v Brisbane City Council & Anor [2006] QPEC 092 | |
| PARTIES: | MICHAEL BARRIE O’KELLY (Appellant) AND BRISBANE CITY COUNCIL (Respondent) AND DIGITAL GRAPHICS IMAGING (QLD) PTY LTD |
(Co-Respondent)
RONALD JOHN WOODHEAD (Appellant)
AND
BRISBANE CITY COUNCIL (Respondent)
ANDDIGITAL GRAPHICS IMAGING (QLD) PTY LTD
(Co-Respondent)
| FILE NO/S: | 3743 of 2005 and 3721 of 2005 | |||
| DIVISION: | Planning and Environment Court | |||
| PROCEEDING: | Preliminary Issue | |||
| ORIGINATING | ||||
| COURT: | Brisbane | |||
| DELIVERED ON: | 8 September 2006 | |||
| DELIVERED AT: | Maroochydore | |||
| HEARING DATE: | 30 August 2006 | |||
| JUDGE: | Judge J.M. Robertson | |||
| ORDER: | ||||
| Declare: | ||||
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| And: | ||||
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| CATCHWORDS: | PLANNING AND ENVIRONMENT – preliminary issue for determination; calculation of gross floor area. | |||
| Legislation: | ||||
| Integrated Planning Act 1997 | ||||
| COUNSEL: | Mr W. Everson (for the appellant) Mr B. Job (for the respondent) | |||
| SOLICITORS: | McCullough Robertson Lawyers (for the appellant) Brisbane City Legal Practice (for the respondent) The co-respondent self represented (by Mr Kennedy) |
I am asked to decide a preliminary point of law which concerns the application of the definition of “gross floor area” in Chapter 3, page 69 of the City Plan to certain areas of the proposed development which involves an application by the developer Digital Graphics Imaging (Qld) Pty Ltd for a development permit for a material change of use (centre activity – multi-unit dwelling for four units) and preliminary approval to carry out building work on and at 331 Waterworks Road Ashgrove. The preliminary point arises in the context of submitter appeals by Michael O’Kelly and Ronald Woodhead, who have limited appeal rights for the reason that the proposed development relies for its access on easements traversing the appellants’ land.
It is common ground that as the proposed development is within an area designated as a MP4 Centre, it is code assessable pursuant to the Centre Design Code of Brisbane City Plan 2000 providing the maximum gross floor area (“GFA”) does not exceed .75 of the site area. The relevant Performance Criterion 1 at page 36 Chapter 5 of the City Plan refers to the scale and bulk of (the development) being consistent with planned or existing buildings in the locality. If this requirement is exceeded, the proposed development becomes impact assessable and generally inappropriate pursuant to s. 7.2.3 of the Centres provisions of the City Plan.
Central to the appellants case is the contention that the proposed development constitutes an over development of the site because of its size and bulk.
This is not the first time this particular issue has been before this Court. The same argument was made in relation to the original plans which (I infer) were lodged with the application which was approved by the Council on 6 September 2005. In due course, it was ordered by consent on 8 March 2006 by Judge Robin QC that the GFA of the proposed development exceeded .75. In response, the developer co- respondent submitted amended plans.
The parties identified two preliminary points and orders were made that these points be determined by way of a preliminary hearing. The first of these, that the amended plans comprise a change to the application which was not minor was not actively argued, and the only issue debated is whether or not the GFA of the proposed development as depicted in the amended plans exceeds .75 of the site area.
At the commencement of the preliminary hearing it was sensibly agreed that the relevant experts meet in informal conclave with a view to narrowing the issues in dispute between the parties. This was quite successful.
The parties agreed to work from a table prepared by Mr Trevor Bacon on behalf of the appellant, a working copy of which is now Exhibit 1. In the informal conclave, Mr Bacon and Mr Stoneley (on behalf of the co-respondent) identified the areas in dispute and those agreed.
Mr Bacon is a quantity surveyor and a licensed CAD (computer-aided design) operator. His measurements were taken from AutoCAD files supplied to him by designers on behalf of the co-respondent. Mr Stoneley, who is an architect, and also a licensed CAD operator has not however measured all of the disputed areas. For the purposes of this preliminary argument, it follows that I accept Mr Bacon’s evidence as to measurements to be ascribed to the areas which are to be included in the calculation of the GFA.
The numbered areas in Exhibit 1 in turn relate to a set of the revised plans which are exhibited to Mr Bacon’s affidavit sworn 30 August 2006 and filed by leave on that day, and marked “THB-6”. In those plans Mr Bacon has marked in a green boundary the areas that he and the appellants say should be taken into account in measuring GFA. He has numbered each area from 1-36, and these numbers correspond to the handwritten and printed numbers on the left hand side of each page of Exhibit 1. For the purposes of this preliminary point, I am prepared to accept the areas agreed as constituting GFA and the measures of Mr Bacon relating to those areas, except that in relation to Areas 12-19, I am required to determine which of the two measurements taken by Mr Bacon and Mr Stoneley comply with the definition of GFA in the City Plan.
Relevantly, GFA is defined in the City Plan as:
“… the total area of all floor levels in the building on the site to which the
development relates, measured to the inside of the external walls, including:
• all internal walls, windows, columns, … •
all internal and external stairs, landings, ramps … or other means of access between levels;
but excluding the area of:
•
any private balcony … whether roofed or not. A balcony includes any outdoor space in or on the building that is a projection from the building, whether or not it is cantilevered or supported partially by posts, braces or columns;
•
any roof deck … (which includes any outdoor space in or on the building that is situated wholly or immediately above an enclosed storey or a storey used for car parking;
… • areas used or intended for the parking of motor vehicles.”
DISPUTED AREAS
Areas 12-19
The issue here is whether the measurement end point for the purposes of determining GFA is the “face of structural block and stud framing” (Mr Bacon) or the “face finished wall / plasterboard lining” (Mr Stoneley). The difference (in area) can be understood when one has regard to the Wall Type Plans at page 15 of Exhibit DRS. 3 to Mr Stoneley’s affidavit filed by leave on 30 August 2006. In my opinion, if any meaning is to be given to the terms “external” and “internal” in the GFA definition, then Mr Bacon’s approach should be preferred. It seems to me that the only commonsense construction of the definition is that the measurement is to be to the inside of the external wall, irrespective of the type of face or finishing to the internal wall.
| Area 1 | |
| [12] | This is an area at the bottom of the stairs leading up from the car parking storey to the ground floor. The appellant submits that this is a “landing … or other means of access between levels”, while the co-respondent argues that this is part of an area “used for the parking of motor vehicles …”. There was some evidence that cars may back into this area when accessing the car park. “Landing” is not defined in the City Plan but is defined in the Macquarie Dictionary as “the floor at the head or foot of a flight of stairs”. The area is clearly a landing and probably within the definition of “other means of access between levels”, and should be included in the calculation of GFA. |
| Area 5 | |
| [13] | Similar reasoning applies to this area, so it should be included, subject to what I say about areas 6 and 7 later. |
Areas 9, 10, 11 and 32
Areas 9, 10 and 11 are part of the podium area (Townhouse 1) and entrance area (Townhouses 2 & 3) which it is argued by the appellant should be included in the GFA calculation. It is submitted that these areas, although having other purposes in the overall design, also fall within the definition of “… landings, ramps … or other means of access between levels”. There is, I think, some merit in Mr Everson’s argument that a purposive approach to the definition supports this approach particularly when the .75 requirement is an acceptable measure attributed to performance criteria which specifically focuses on issues of scale and bulk.
I don’t agree with Mr Job that these areas should be excluded because of the requirement in the first paragraph of the definition to measurement to the inside of the external walls. This would not make sense because the definition does contemplate the inclusion in GFA of external stairs which may not be surrounded by external walls. Each area has one boundary which abuts an external wall in any event. I agree with him that areas 9, 10 and 11 do also have a “private balcony” purpose, however I prefer Mr Everson’s submission particularly having regard to the purposive approach to construing the GFA definition. Although to some extent similar arguments could apply to Area 32, nevertheless I agree with Mr Job that as this area is at the same level as the ground storey of Townhouse 4 and is located directly above the carpark storey, it is more appropriate to exclude it from the GFA calculation.
Areas 6 and 7
I must confess to some confusion about what was agreed in Exhibit 1 about these areas with Area 5. Although against Area 7 in Exhibit 1 is the word “disagree” it seems that this is misleading. Mr Everson cross-examined Mr Stoneley about this and I set out the relevant passage from the transcript:
“MR EVERSON: Excuse me, your Honour. There is one other item that's been brought to my attention. My learned friend Mr Job took you to some notes that appear in Exhibit 1 dealing with areas 5 and 6. Those areas are indicated on the middle – the final two pages of the plans annexed to Mr Bacon's most recent affidavit. Have you got those?-- Yes, I have.
Now, I understand that the essential difference between you and Mr Bacon is that if one goes to the area showing area 6, there is a small part of area 6 or about a third of the area 6 that extends above the line that runs through the middle of the page. Are you familiar with what I'm talking about?-- I can see the area you're referring to.
Yes. All right. Now, I understand that in the course of discussions there was an agreement reached, and that's in respect of this area, for the sake of trying to round things out and that's recorded in item 7. Item 7 is on the same page on the other side of the internal staircase. Do you see item 7 down the bottom?-- Yes.
It's in between items 10 and 9?-- Yes, I can.
And I understand that it was agreed that item 7 be removed from the calculation to offset the over-representation of item 6; is that correct?-- With - with the provision that we would be able to recheck those areas, but, yes.
Yes. So, broadly speaking, Mr Bacon conceded that a third of area 6 was inappropriately included?-- Well, we didn't discuss how much was over.
All right. But-----?-- We - we agreed that there was an error in what was measured.
And for the purposes of the exercise-----
HIS HONOUR: Sorry, Mr Everson, where do you get a third from?
MR EVERSON: I'm looking at the top of the stairs - I beg your pardon, your
Honour. I'm looking at the top of the stairs. It's much less than a third.HIS HONOUR: Much less than a third.
MR EVERSON: I've been selling my client seriously short there. Thank you for your attention to detail there, your Honour. Look, essentially for the sake of trying to reach an agreement today there was a tradeoff between part of item 6 and 7, wasn't there? And that's why you've got "item 7 out - agree" recorded in Exhibit 1?- - What was actually agreed was that it would appear that item 6 as measured by Mr Bacon had included item 7 in his area itemised as 6 and so, therefore, he was including 7 twice. That's - that was the assumption that we reached and that we would need to recheck those areas.
I'm just going to put this to the witness. Excuse me, your Honour, I just want to get this right. I'm going to put this to you very carefully. It was agreed that 7 was properly part of the calculation?-- That's correct.
But that as a result of the double-up of area 5, to try and achieve some sort of rough accuracy 7 would be excluded to offset that doubling up?-- That's correct.”
It became a little confusing when Mr Job cross-examined Mr Bacon on this issue, however given that I have determined that Mr Bacon’s Area 5 should be included, I am content to proceed on the basis that although both experts agree that Area 7 should properly be included in the calculation of GFA, it should be omitted to offset Mr Bacon’s agreed error in relation to Area 6. Rather than move away from Exhibit 1 to Mr Stoneley’s calculations to which Mr Job later referred in cross-examination of Mr Bacon, I am content to allow the whole of Areas 5 and 6 as measured by Mr Bacon to be included in the GFA calculation, but that Area 7 be excluded. It is technically unsatisfactory but comes about because of the urgency which attended the conclave on the hearing day.
CONCLUSION
It follows that the GFA is to be calculated by reference to my amended part copy of Exhibit 1 which is set out below, and which is amended in accordance with my findings set out above.
Area Measurement 1. 1.96 2. 1.627 3. 2.91 4. 3.54 (I accept that the area of the top tread should be included) 5. 1.24 6. 5.56 8. .63 9. 4.62 10. 4.12 11. 10.76 12. 38.65 13. 38.35 14. 38.59 15. 40.29 16. 47.55 17. 44.73 18. 46.75 19. 47.58 33-36 2.76 Total 382.217
It follows that the GFA of the development set out in the revised plans exceeds .75 of the site area, when one has regard to the agreed site area of 475.49m².
The most significant change made to the original plans was the removal of external access stairs to the rooftop terrace of each of the 4 proposed townhouses and replacement with a foldaway ladder. I am satisfied that the change is minor in the sense in which that expression used in s. 4.1.52(2)(b) of the Integrated Planning Act 1997 has been construed by this court.
The appellants sought to ventilate another preliminary issue relating to the lawfulness of the ladders. They argued that the ladders fail to comply with the Building Code of Australia. In my opinion, this issue is best left for the merits appeal where it will be possible for the court to consider this and, if approved, the approval can be appropriately conditioned to ensure that the access ladders comply with the law. There is dispute on the present evidence which was not addressed in cross-examination, and it is simply not possible (or appropriate) for me to determine this in a preliminary way.
I will allow the parties liberty to apply by telephone in relation to these reasons by notice given to the other parties within 7 days.
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