Bell v Brisbane City Council [2017] QPEC 26
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Bell v Brisbane City Council & Ors [2017] QPEC 26
PARTIES: KATE PETA BELL
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and
SUNLAND DEVELOPMENTS NO. 8 PTY LTD
Co-Respondent
and
CHIEF EXECUTIVE ADMINISTERING THE
SUSTAINABLE PLANNING ACT 2009
Co-Respondent by Election
FILE NO/S: 2868 of 2015
DIVISION: Planning and Environment
PROCEEDING: Appeal
DELIVERED ON: 10 May 2017
DELIVERED AT: Brisbane
HEARING DATE: 13, 14, 15, 16, 17, 20, 21, 22, 23, 24 June 2016, 27, 28 July
2016, 18 August 2016
JUDGE: Rackemann DCJ
ORDER: The further hearing of the appeal is adjourned.
CATCHWORDS: PLANNING AND ENVIRONMENT – submitter appeal –
proposal for 3 high-rise multi-unit towers, retention and reuse
of a heritage place, open space and other uses on former ABC
site at Toowong – where site in the Major Centre Zone, the
Toowong Centre precinct, covered by a heritage overlay and
designated as both a land mark site and a catalyst site – extent
of centre issues – integration with the Toowong centre –
height – bulk and scale – building separation – setbacks –
infrastructure – heritage – traffic – amenity, privacy,
overshadowing – economic and community need –
architectural quality – landmark – subtropical design – tower-
over-podium vs tower-in-plaza – streetscape and site
activation – building transition – centre legibility – quality of
open space – visual amenity, character and integration – site
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planning generally – nature and extent of conflict and
grounds
COUNSEL: D Gore QC with M Batty for the Appellant
M Hinson QC with N Loos for the Respondent
C Hughes QC with M Williamson, J Lyons and D Jones for
the Co-Respondent
N Kefford for the Co-Respondent by Election
SOLICITORS: Connor O’Meara for the Appellant
Brisbane City Legal Practice for the Respondent
McCullough Robertson for the Co-Respondent
Norton Rose Fulbright for the Co-Respondent by Election
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TABLE OF CONTENTS
Introduction ..................................................................................................... 5
(i) The site .............................................................................................. 5
(ii) The proposal ..................................................................................... 6
(iii) The locality ....................................................................................... 7
The assessment regime .................................................................................... 8
The issues ........................................................................................................ 8
General town planning context ....................................................................... 9
Site specific provisions of the TANP .............................................................. 13
Centre issues .................................................................................................... 18
(i) Centre activities ................................................................................... 19
(ii) Integration with the Toowong Centre ................................................. 23
Height .............................................................................................................. 25
Bulk and scale ................................................................................................. 31
Building separation ......................................................................................... 34
Setbacks ........................................................................................................... 39
Infrastructure ................................................................................................... 40
Heritage ........................................................................................................... 42
(i) Introduction ....................................................................................... 42
(ii) Mapping ............................................................................................ 46
(iii) Statement of significance .................................................................. 47
(iv) Areas of contention ........................................................................... 50
(v) Witnesses and their credit/experience............................................... 50
(vi) Damage to Middenbury .................................................................... 51
(vii) Damage to the fig trees ..................................................................... 54
(viii) The setting of Middenbury ............................................................... 55
(ix) Views to and from Middenbury ........................................................ 58
(x) The proposed addition to Middenbury.............................................. 60
(xi) Compliance with heritage provisions ............................................... 62
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Traffic .............................................................................................................. 63
(i) Introduction ....................................................................................... 63
(ii) Vehicular access from Coronation Drive .......................................... 64
(iii) The form of the access ...................................................................... 68
(iv) Archer Street cycleway access .......................................................... 71
(v) Council’s bikeway planning ............................................................. 72
(vi) The cross-river bikeway.................................................................... 72
(vii) Carpark layout ................................................................................... 73
(viii) Conclusion on traffic ........................................................................ 74
Amenity ........................................................................................................... 75
(i) Appellant’s property ......................................................................... 75
(ii) 20 Archer Street ................................................................................ 80
(iii) Traffic noise ...................................................................................... 81
(iv) Wind.................................................................................................. 82
(v) Lay witnesses .................................................................................... 84
Economic and community need ...................................................................... 85
Architecture, design, visual amenity and character ......................................... 95
(i) Architectural quality ........................................................................ 95
(ii) Landmark ......................................................................................... 96
(iii) Sub-tropical design .......................................................................... 98
(iv) Tower over podium v tower-in-plaza .............................................. 101
(v) Streetscape activation ...................................................................... 102
(vi) Building transitions ......................................................................... 106
(vii) Centre legibility ............................................................................... 108
(viii) Quality of the public open space ..................................................... 109
(ix) Visual amenity, character and integration with the centre .............. 114
(x) Site planning generally .................................................................... 115
Nature and extent of conflict and grounds ...................................................... 118
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5
Introduction
[1] This is a submitter appeal against the respondent’s approval of a development
application by the co-respondent for a material change of use for multiple dwelling,
centre activities and re-use and extension of a heritage place and a preliminary
approval for building work and operational works. The appellant’s family residence
adjoins the subject site to the north. The co-respondent by election’s interest relates
to a heritage place on the site.
(i) The site
[2] The subject site is the former ABC site in Toowong. It:
(a) is located at 600 Coronation Drive, Toowong on land described as lot
13 on RP104400;
(b) has an area of 1.4999 hectares;
(c) has a long frontage to Coronation Drive (approximately 150 metres);
(d) has a shorter frontage (approximately 64 metres) to Archer Street to
the south;
(e) has a long frontage (approximately 136 metres) to the Brisbane River;
(f) is relatively regular in shape, with the exception of the north eastern
corner which has an obtuse angle of intersecting boundaries which
envelop the adjoining parcel of land owned by the appellant;
(g) has been cleared of buildings with the exception of a former residential
building, Middenbury House (Middenbury), which is listed on the
Queensland Heritage Register, and two small utility structures;
(h) is mostly cleared of vegetation with the exception of two large mature
fig trees near Coronation Drive which are listed on the Queensland
Heritage Register and remnants of vegetation around Middenbury and
along the riverbank, and
(i) is in a derelict state and is ripe for redevelopment.
[3] The topography of the site has been altered over the years. In general terms, it falls
from its south western corner along Coronation Drive to the north and to the east
where the site adjoins the Brisbane River. The highest point of the site is where
Middenbury is located (elevated above Coronation Drive). The elevated platform
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upon which Middenbury sits creates a prominent upper level platform on the subject
site.
(ii) The proposal
[4] The development proposal has the following elements:
(a) 555 units with a gross floor area of 49,231.6 m2 comprised as follows:
Dwelling Tower A Tower B Tower C Total
1 bedroom 30 12 142 184
2 bedroom 106 80 104 290
3 bedroom 16 38 19 73
Villa 4 4 2 8
Total 156 134 269 555
(b) combined community use areas and food and drink outlets;
(c) public open space compromising some 53% of the site area;1
(d) a sculpture park within the publicly accessible open space;
(e) private open space of 12.3% of site area;2
(f) site cover of only 31.4%, with a ground level site cover of 28.74%;3
(g) 800 car parks (714 resident and 86 visitor spaces) spread across 4
basement levels;
(h) 680 bicycle spaces;
(i) a public bikeway and pedestrian way, to be kept in private ownership
(protected by easements to be granted to the Council), traversing the
subject land providing a connection to the bicentennial bike way and
across the site, and
(j) the retention and extension of Middenbury and its adapted re-use.
[5] The three residential towers are to be relatively evenly spaced across the site and
identical in architectural expression and design. Designed by the late, internationally
renowned, architect Dame Zaha Hadid, they feature a glazed external finish with a
white sculptured skeletal frame, visible as a deliberate design element. Each of the
1 Excluding areas of planting along the northern and southern boundaries, an area for road widening
and areas to be given over for existing riparian vegetation. See exhibit 52, p 3.
2 Exhibit 52, p 4.
3 Exhibit 52, pp 1-2.
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towers tapers to a narrow base. The widest part of each building is located at
approximately level 5, which is the floor with the greatest tower site cover. The shape
of the buildings has been described as champagne flute like.
(iii) The locality
[6] The site is part of the Toowong major centre. The core of that centre is focused on
High Street, Jephson Street and Sherwood Road, which lie to the west of Coronation
Drive and the railway line. The centre and its immediate area is undergoing rapid
transformation in terms of its built form. A number of recent approvals have been
granted by the Council for high-rise, high density residential development. A number
of approvals have been actioned and construction is under way. The centre enjoys
excellent access to public transport, with rail, ferry and bus services all within walking
distance. The subject site provides the only riverfront site within the centre.
[7] As to development surrounding the subject land:
(a) land to the north is outside the designated centre and presently
comprises mostly low or medium density residential dwellings. This
includes the appellant’s land which is included in the High Density
Residential zone;
(b) land to the south is developed with a 2 storey, local heritage listed
house (St Briavels). A 9 storey apartment complex has been recently
approved on this site (20 Archer Street), located between St Briavels
and the Brisbane River;
(c) further south in Archer Street, development comprises a mix of
residential forms, from older 1 and 2 storey homes of significant
character and amenity to older apartment blocks (3 – 7 storeys) to
high-rise apartments up to 15 storeys (the Aspect development) which
were under construction at the time of the hearing, and
(d) land to the west across Coronation Drive is the “core” of the centre
including the Toowong Tower and department store based shopping
centre, offices and a recently approved 17 storey, mixed use
development. The Toowong Tower has been a prominent feature of
this centre for many decades but much taller development is now
occurring and will likely occur in the centre in the future.
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The assessment regime
[8] The development application was impact assessable and so is to be assessed pursuant
to s 314 of the Sustainable Planning Act 2009 (SPA). Public notification generated
521 submissions, although of those, 502 were not properly made. The overwhelming
majority of submitters were opposed to the development.
[9] The application is to be decided in accordance with sections 324 and 326 of SPA. A
decision on the application must not conflict with a “relevant instrument” unless there
are sufficient grounds to justify the decision. A relevant instrument includes a
planning scheme. Grounds are matters of public interest.
[10] Grounds may be those relevant to the part of the application which is in conflict with
the planning scheme or may be grounds in favour of the application as a whole and
which, on balance, are sufficient to justify approval notwithstanding conflict.4 Whilst
the court must not usurp the local government’s role as planning authority, by
adopting its own planning strategies in preference to those in the planning scheme,5
the discretion to approve a particular proposal notwithstanding conflict (where there
are sufficient grounds) recognises that a degree of flexibility is desirable, in the public
interest, in development assessment. The co-respondent bears the onus of establishing
that the proposed development should be approved and the appeal dismissed.
The issues
[11] The appellant, as she is entitled to do, did not confine her case to issues which directly
affect her family residence. The appellant’s lawyers exhibited considerable diligence
in identifying and putting in issue, compliance with 82 provisions of the planning
documents.6 Helpfully, counsel for the appellant ultimately identified some 37
“central provisions” and acknowledged that, if the appellant’s case was not made
good by reference to some or all of those provisions, it would not be necessary for the
court to consider the remaining 45 provisions with which the appellant also alleged
conflict. Further, the “central provisions” included provisions of the Queensland
Heritage Regulations, which the appellant ultimately did not contend were applicable
4 Weightman v Gold Coast City Council [2003] 2 Qd R 441 [3].
5 Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209, 211.
6 See the list in exhibit 3A.
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to impact assessment. Notwithstanding the identification of the central provisions, the
appellant’s submissions addressed some other provisions which were not central
provisions and, in some instances, not identified issues at all. These reasons deal with
the “central provisions” in the context of the various issues to which they relate.
[12] There is a contest about the nature and extent of the conflict with the planning scheme.
The respondent and co-respondent assert that there are sufficient grounds to warrant
approval despite any conflict which may be found to exist.
General town planning context
[13] The development application was made on 1 September 2014. City Plan 2014
(CP2014) was in force at that date. Under CP2014 the site is:
(a) in an identified growth node on a selected transport corridor;
(b) in the Major Centre zone;
(c) included within the Toowong Centre Precinct of the Toowong –
Auchenflower Neighbourhood Plan (TANP) for which there is a code
which applies to development assessment;
(d) included within Sub Precinct NPP-001C of the TANP;
(e) in the heritage overlay;
(f) designated as one of the landmark sites throughout the city, and
(g) designated as one of the catalyst sites within the TANP area.7
[14] There is a hierarchy of assessment criteria under CP2014, pursuant to which:
(a) the strategic framework prevails over all other components to the
extent of the inconsistency;
(b) state-wide codes prevail over all other components (other than the
strategic framework) to the extent of the inconsistency;
(c) overlays prevail over all other components (other than the strategic
framework and state-wide codes) to the extent of the inconsistency;
(d) neighbourhood plan codes prevail over zone codes, use codes and
other development codes to the extent of the inconsistency, and
(e) zone codes prevail over use codes and other development codes to the
extent of the inconsistency.
7 The other 2 being the Woolworths site and the Wesley Hospital – see figure a.
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[15] Part 3 of CP2014 contains the strategic framework. It includes Theme 5: Brisbane’s
City Shape, which has nine elements including:
Element 5.3 Brisbane’s major centres, and
Element 5.8 Brisbane’s growth nodes on selected transport corridors.
[16] The Toowong major centre is one of eight major centres outside of the Brisbane CBD.
The specific outcomes for major centres include that they:8
accommodate significant population-serving activities and employment;
are well serviced by the city’s public transport and active transport network
which are supported by development;
support an 18 hour economy, and
comprise integrated residential development.
[17] The proposal is for an integrated residential development, with some other uses and
facilities that will support the centre, which is well serviced by public transport and
an active transport network.
[18] The specific outcomes for Brisbane’s growth nodes on selected transport corridors
include that they:9
provide opportunities for a range of more intense urban form, mix of land uses
activities that are tailored to the locality and catchment’s community needs in
accordance with the applicable land use strategies;
provide an integrated urban form and exhibit leading practice in urban and
public domain design and social environmental outcomes, and
are based on railway stations and land within the centre zone which are focus
points of activity, accessibility and employment.
[19] Insofar as the Milton to Wacol transport corridor is concerned, the following
statement is made in CP2014 in relation to Toowong:10
“The Toowong Major Regional Activity Centre will have a strong
commercial office focus due to the centre’s proximity to the city
centre, including via the Centennial [sic] Pedestrian Cyclist Route
along the Brisbane River. High density residential development builds
8 S3.7.4
9 S3.7.9
10 Exhibit 2, p 77.
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11
on the centre’s proximity to the river and the University of
Queensland, St Lucia campus.”
[20] One of the appellant’s issues alleged conflict with this provision on the basis that the
proposal does not have a commercial office focus. The provision however, speaks of
the strong commercial focus of the centre as a whole (which is discussed later and
which this proposal would not compromise). It does not require each development on
each site to have this focus. As for the balance of the provisions, the proposal is for
high density residential development which builds on the proximity of the Toowong
Major Activity Centre to the river and the University of Queensland, St Lucia campus.
It also proposes to augment the pedestrian/cyclist route. Perhaps understandably, this
was not one of the appellant’s “central provisions”.
[21] The Major Centre Zone Code (MCZC) is an applicable code. The purpose of that
code11 is to provide a mix of uses and activities, including residential uses, capable of
serving a subregion. In relation to Toowong (amongst other places), the purpose is to
provide for the mix and intensity of uses and level of economic and social activity
that support its role as an activity core, servicing a sub-regional catchment and
complementing the role of regional centres.12 Multiple dwellings are a form of centre
activity.13 The overall outcomes (OOs) include14 that development is tailored to its
specific location and to the role of the individual centre and is consistent with the
location-specific provisions of the relevant neighbourhood plan.
[22] The purpose of the TANP Code is to provide finer grained planning at a local level
for the Toowong Auchenflower Neighbourhood Plan Area. The purpose of the TANP
Code is to be achieved through OOs including those for each precinct of the
neighbourhood plan area. The code also provides for assessment criteria in the form
of performance outcomes (POs) and acceptable outcomes (AOs). The TANP Code
contains provisions which are specific to the subject site, and also designates the site
as both a landmark site and a catalyst site.
11 S6.2.2.2
12 S6.2.2.2
13 See table SC1.1.2.B – Defined activity groups.
14 OO(4)(b).
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[23] The OOs of the TANP Code include the following with which the proposal is
consistent and in respect of which the appellant’s issues did not allege conflict:15
(f) Higher density development is located in areas with high amenity,
close to major open space or the Brisbane River, or in centres and
around major public transport to promote legible centre structure and
support transit oriented development.
(n) Development enhances the public realm and pedestrian and cycle
movement with a network of parks, arcades and plazas (e.g.
predominantly hard-surfaced open space used by the general public).
(o) Development encourages walking, cycling and public transport as
attractive options for daily travel for residents, employees and
visitors, and improves pedestrian/cycle connections to key
destinations.
(p) Development contributes to the creation of new public spaces and
improves existing public spaces, ensuring casual surveillance,
providing new pedestrian connections and where possible,
integrating with and providing direct access to open space.
(q) The Brisbane River has a renewed focus within the neighbourhood
plan area, and residents, employees and visitors are provided with
easy access to active and passive recreational opportunities that make
the most of this important natural asset.
[24] The ‘public realm’ to which reference is made in OO(3)(n) is defined16 to mean any
publicly accessible streets, pathways, cross-block links, arcades, plazas, open spaces
and any public and civic building and facilities. It is not limited to areas in public
ownership. The proposal includes a significant contribution to the public realm. Other
overall outcomes (with which the appellant contends the proposal conflicts) are
discussed later.
15 The submission for the appellant addressed OO(3)(o), but that is not one of its central provisions or
issues and it is not an objective with which the proposal is in conflict in any event.
16 Table SC1.2.3.B.
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[25] The TANP Code also has OOs for the Toowong Centre Precinct, of which the site
forms part. Those OOs with which conflict is alleged (b, c, d and h) are discussed
later.
[26] Other applicable codes of relevance are:
the Centre or Mixed Use Code (CMUC);
the Multiple Dwelling Code (MDC);
the Road Hierarchy Overlay Code (RHOC);
the Transport Access Parking and Servicing Code (TAPS Code);
the Bicycle Network Overlay Code (BNOC); and
the Heritage Overlay Code (NOC).
[27] Compliance with an applicable code under City Plan 2014 can be demonstrated by
adoption of the acceptable solutions or consistency with the corresponding
performance outcomes or with the purpose and overall outcomes of the code.17
[28] The Queensland Heritage Place State Code (QHPSC) is later discussed in relation to
the heritage issues.
Site specific provisions of the TANP
[29] It has already been observed that the TANP contains provisions which specifically
relate to the subject site.
[30] The OOs for the neighbourhood plan area include the following:
“(3)(k) New development along the river’s edge on the former ABC
site improves public river access and provides appropriate
building design using setbacks, bulk and separation and the
provision of public open space.”
[31] The subject development will improve public river access by providing, for the first
time, public open space on this riverfront site, including public open space along the
river’s edge. The building design is discussed later and for the reasons given, is
appropriate.
17 S5.3.3(1)(d)(i), read with (c)(iii).
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[32] The OOs for the Toowong Centre Precinct (NPP-001) contain provisions which,
whilst not specifically naming the subject site, can only be referring to it, because it
is the only site within the precinct with a river frontage. OO(4)(g) is as follows:
“Development in this precinct extends to and engages with
the river, while providing public spaces that are linked to the
remainder of the precinct by high quality streets and
pedestrian connections.”
[33] The proposal will allow the precinct to extend to and engage with the river. Whilst
the subject site is separated from the balance of the precinct by Coronation Drive and
the railway line, the proposal provides for a very permeable site within which there
is a generous provision of public space to which the streets and pedestrian connections
in the remainder of the precinct can link. That public space will be accessible from
both the Coronation Drive and Archer Street frontages of the site and, as is noted
later, the proposal will improve the quality of the streetscape (including by
improvements required by conditions). There are, beyond the site, pedestrian
crossings at signalised intersections and a pedestrian overpass located to the south of
the subject site, which facilitate pedestrian connection. The proposal does all that
could reasonably be expected to support this OO. It should be noted that the OO was
not one with which conflict was alleged in the appellant’s central provisions or issues,
although it was referred to in submissions.
[34] OO(4)(h) provides as follows:
“Development on sites adjoining the Brisbane River ensures
the public access to the river, and buildings adjoining
riverfront public spaces include a lively blend of retail,
commercial, residential and community uses.”
[35] The subject site provides riverfront public spaces which include a blend of uses. For
the reasons stated later, that blend of the specified uses is not as rich as might be
imagined. The proposal would however, achieve substantial and lively activity on and
through the site to the river in public spaces with residential uses, the repurposed
Middenbury, an historical information/interpretive centre, café and restaurant
associated with it, a sculpture park, pedestrian and cycleway ways, a café closer to
the river and open spaces.
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[36] OO(3)(l) is also site specific, since it relates to Middenbury. It provides:
“The heritage value of Middenbury House is protected and enhanced,
through retention, refurbishment and re-use of its building”.
It is proposed to retain, refurbish and reuse Middenbury. For the reasons discussed
later in relation to the heritage issues, the proposal would achieve that overall
outcome.
[37] PO11, (and its corresponding acceptable outcomes) specifically relates to the subject
site and is as follows:
“PO11
Development on the former ABC site as shown in Figure a:
(a) enhances the pedestrian experience with high-quality building design,
streetscape and waterfront amenities providing a direct and tangible
linkage between Toowong and the river;
(b) provides a new public space with supportive uses to encourage activity
on and occupation of the river’s edge;
(c) maintains the natural quality of the waterfront experience for access
by the general public;
(d) reflects the local culture and heritage of Middenbury House;
(e) provides an arcade between Coronation Drive and Archer Street.
Note – A structure plan prepared in accordance with the Structure planning scheme policy
can assist in demonstrating achievement of this outcome.
AO11
Development on the former ABC site shown in Figure a has a structure plan
which demonstrates:
(a) provision of a riverside open space area a minimum of 3,000m2 and
with a minimum Brisbane River frontage of 40m;
(b) retention and re-use of Middenbury House and retention of the
heritage-listed trees on Coronation Drive;
(c) retention of views to the Brisbane River as indicated in Figure b;
(d) public access to the entire Brisbane River frontage for a minimum
width of 12m;
(e) provision of an arcade to connect to Coronation Drive at Booth Street
from Archer Street;
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(f) activation of the ground storeys of buildings fronting public spaces;
(g) provision of vehicular access to the site that is shared with pedestrian
spaces;
(h) provision of a maximum of 1 vehicular access to the site from
Coronation Drive;
(i) extension of the Bicentennial Bikeway through the site to connect with
Archer Street.”
[38] The proposal substantially adopts the acceptable outcomes. It:
(a) provides more than twice (almost three times) the amount of open
space on this riverfront site, including a frontage18 in excess of 40m;
(b) involves the retention and reuse of Middenbury and the retention of
the heritage listed trees on Coronation Drive;
(c) retains views to the Brisbane River as indicated in Figure b, being a
significant view across the river;
(d) provides public access to the Brisbane River frontage, and
substantially to a minimum width of 12m, although there are
incursions;19
(e) provides an arcade to connect to Coronation Drive from Archer Street
(an arcade is defined20 as a privately owned pedestrian pathway that is
part of a pedestrian network and is publically accessible during hours
of operation);
(f) does not involve activation of the ground storey of the residential
towers which front the public spaces, although it will achieve
substantial activity on the site;
(g) involves both provision of vehicle access and pedestrian spaces;
(h) has only one vehicular access to the site from Coronation Drive, and
(i) provides for the extension of the Bicentennial Bikeway through the
site to connect with Archer Street.
[39] Accordingly, there is substantial adoption of the acceptable outcomes, although there
is some level of departure. That does not in itself create conflict. Consideration needs
to be given to the performance outcome.
18 Which does not need to be continuous.
19 Exhibit 6, p 123; T5-70.
20 Table SC1.2.3.B.
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[40] The appellant sought to make a point about the note to the performance outcome and
the absence of a structure plan. The note simply states that such a plan can assist in
demonstrating achievement of the outcome. A deal of what is, in effect, structure
planning, evidently underlies the formulation of the proposal itself and, as Mr
Schomburgk (the town planner engaged by the co-respondent) pointed out, was, in
effect (if not in name), conducted in the development application process. Further,
the extensive analysis of the proposal in the course of the appeal permits an
assessment as to whether it achieves the performance outcome.
[41] The matters of controversy in relation to whether the proposal meets the performance
objectives are:
(a) heritage issues;
(b) whether the proposal involves “high quality building design,
streetscape and waterfront amenities”;
(c) whether it provides “a direct and tangible linkage between Toowong
and the River.”
(d) the extent to which it provides “supportive uses to encourage activity
on and occupation of the river’s edge”, and
(e) whether it maintains the natural quality of the waterfront experience.
Those matters are discussed later. For the reasons given, I am satisfied that the
proposal appropriately responds to each of those issues.
[42] It has also been noted that the TANP designates the site both as a landmark site and
as a catalyst site. There are 41 landmark sites across the city. They are defined as
those:
“Identified in a neighbourhood plan to accommodate buildings or
developments that attain citywide prominence through a combination
of notable architectural excellence, siting and location.”
[43] For the reasons discussed later, the subject development would, if it proceeded,
achieve citywide prominence through a combination of notable architectural
excellence, siting and location.
[44] PO6 of the TANP applies to landmark sites in the TANP. It provides that development
on such a site provide a prominent visual reference and contribution to the city’s
public realm by doing various things, which include exhibiting subtropical
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architectural excellence and respecting the prominence of adjoining or nearby
heritage places. Whether the proposal exhibits ‘subtropical’ architectural excellence
and whether it respects the prominence of Middenbury21 were controversial. For the
reasons discussed later, the proposal satisfies this PO.
[45] There is no definition of a “catalyst site”, but the overall outcomes for the
neighbourhood plan area include as follows:
“(3)(s) structure planning of catalyst sites identified in figure a
addresses the unique characteristics of these sites ensuring
that development integrates with surrounding land, creates an
attractive public realm in an urban environment, provides
public space and retains and reuses onsite heritage
structures.”
[46] The absence of a document called a ‘structure plan’ has already been dealt with. The
proposal has obviously been designed to address the unique characteristics of its site
and to create an attractive public realm and urban environment. It provides public
open space and retains and reuses the heritage building. For the reasons discussed
later, there is a limit on the extent to which it can physically integrate with
surrounding land, including the appellant’s property. The proposal however, creates
a permeable site with visual and pedestrian linkages to the surrounding area. This was
not one of the appellant’s central provisions, or indeed a provision in its issues
otherwise.
[47] It is evident that, notwithstanding the large number of provisions relied upon by the
appellant, there are numerous provisions of the planning scheme or parts of provisions
with which the proposal is consistent or which it supports.
Centre issues
[48] It was submitted, for the appellant, that the proposal is contrary to the intent of
CP2014 because it:
(i) includes limited, if any, centre type uses, and
(ii) fails to integrate with the existing Toowong Centre.
21 Which is on the site rather than adjoining or nearby.
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19
(i) Centre activities
[49] It was pointed out, on behalf of the appellant, that:
the site is included in the Major Centre zone in CP2014;
under the local plan in force at the time of CP2000, the site was in the
residential precinct, which was to be developed predominantly for medium
density residential uses and where retail uses were not supported;
under the TANP however, the site is in the Toowong Centre precinct and not
in the Toowong Residential precinct, the latter of which is intended to form
the primary residential catchment to the Toowong Centre, and
the proposal is nevertheless predominantly for residential uses.
[50] Insofar as the appellant’s “central provisions” are concerned, reliance was placed on:
(i) OO(4)(b) of the TANP Code, which provides that the
Toowong Centre precinct “contains a range of knowledge-
based employment opportunities and takes full advantage of its
strong economic ties to the CBD and surrounding suburbs…”
(ii) OO(4)(c) of the TANP Code, which provides that the
Toowong Centre precinct “contains the greatest intensity and
mix of land uses in the neighbourhood plan area, providing a
focal point for retail, commercial and social activities…”
(iii) OO(4)(h) of the TANP Code which, as has already been noted,
seeks development within the Toowong Centre precinct on
sites adjoining the Brisbane River which ensures, amongst
other things, a “lively blend of retail, commercial, residential
and community uses.”22
(iv) OO(5)(a) of the TANP Code which provides that the Toowong
Residential Precinct (NPP-002) forms the primary residential
catchment to the Toowong Centre.
(v) PO3 of the TANP Code, which provides that development in
centre precincts provides a “balanced mix of residential and
non-residential uses and includes a significant component of
22 Community use is defined in CP2014 as “premises used for providing artistic, social or cultural
facilities and community support services to the public and may include the ancillary preparation and
provision of food and drink”
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20
non-residential centre activities to maximise transit oriented
development outcomes.”
(vi) PO11 of the TANP Code which provides that development on
the subject site, amongst other things, “provides a new public
space with supportive uses to encourage activity on and
occupation of the river’s edge.”
(vii) OO(4)(a) of the MCZC, which provides that “development
delivers a highly diverse range of centre activities…”
[51] Reference was also made to AO2.3 of the TANP. That is an acceptable solution to a
performance outcome which refers to activation, a matter discussed in the context of
design issues.
[52] Whilst the centre is intended to be developed for a mix of land uses, it must also be
acknowledged, as was pointed out for the respondent, that the intended mix includes
high density residential uses in the centre. In that regard:
(i) multiple dwellings are one form of centre activity;
(ii) section 3.7.1(e) of the strategic framework provides that not
only are Brisbane’s major centres vibrant, mixed use
destinations that support an 18 hour economy, but that they
“integrate residential development”;
(iii) section 3.7.4 contains specific outcome 4 that “major centres
comprise23 integrated residential development” and land use
strategy L4 which provides that “higher density residential
development is provided for and will complement, but not
compromise, the core commercial retail and community
functions of the major centre”;
(iv) section 3.7.9 contains land use strategy L3 which, amongst
other things, provides that centres within growth nodes are
intensive nodes of not only commercial and retail activities and
local services and facilities, but residential activities as well,
with a variety of housing types, configurations and sizes;
(v) the purpose of the MCZC is to provide for a mix of uses and
activities, including residential;
23 In this context the word “comprise” should be interpreted to mean “include”.
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21
(vi) OO(4) of the MCZC, upon which the appellant relies, goes on
to provide that development for a residential use in the zone
should, amongst other things, be high density, not compromise
the primary function of the zone as a commercial activity
centre, facilitate urban consolidation and the efficient use of
physical and social infrastructure, support the creation of a
walkable centre, with the potential for residents to live within
walking distance of public transport and facilities within the
centre and provide a wide range of housing sizes;
(vii) OO(4)(c) of the TANP Code, goes on from the part extracted
above, to provide “A variety of residential uses also exists in
the centre and takes advantage of the centre’s proximity to
public transport and the amenity provided by new public open
space and the Brisbane River”;
(viii) the “lively blend” referred to in OO(4)(h) expressly includes
residential uses, and
(ix) whilst PO3 of the TANP Code refers to a “balanced mix” of
residential uses and non-residential uses, that does not require
an even mix or preclude development with a substantial and,
indeed, majority residential component. So much is apparent
from the acceptable outcome, which refers to a maximum of
80% of floor space in individual buildings being occupied by
residential uses. One can therefore expect that a “balanced
mix” can be achieved by development of at least up to 80%
residential (by adoption of the acceptable outcome) and
possibly more, (on a performance based assessment).
[53] There is no basis for excluding development with a substantial and even
overwhelming (up to at least 80%) residential component from this part of the centre
or for supposing that the proposed development will supplant or overtake the primacy
of the Toowong Residential Precinct as the primary residential catchment to the
Toowong Centre.
[54] None of the above is to suggest that the planning documents intend that the subject
site be developed exclusively for residential purposes, nor is it proposed to be
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22
developed in that way. The issue is as to the appropriateness of the limited amount
of non-residential uses proposed.
[55] It was pointed out, on behalf of the respondent, that:
(i) consistently with OO(4)(d) of the TANP Code, it is Sherwood
Road where the majority of retail, community and lifestyle
uses are to be located;
(ii) consistently with OO(4)(e) of the TANP Code, it is High Street
which is to be the focus for non-residential development, and
(iii) the intent for the Woolworths site to be a high quality, high
density “mixed use development”, (consistently with PO10 of
the TANP Code) is not replicated in PO11 for the subject site.
Rather, PO11(b) simply requires provision of new public
space, with supportive uses to encourage activity on and
occupation of, the river’s edge, which the proposal does.
[56] It was submitted, for the respondent and for the co-respondent, that the non-
residential uses at ground level will form part of a “lively blend” and will encourage
activity on and occupation of the river’s edge and is appropriate.
[57] It is unsurprising that development of the subject site, being the only riverfront site
within the centre, is proposed to have a very substantial residential component. The
matters referred to by the respondent might justify a non-residential component of
somewhat lesser scale than for other sites in the centre. I accept that the proposal
includes a blend of residential, food and beverage and community use (Middenbury
and the sculpture park). I also accept that the proposed development will indeed
encourage activity on, and occupation of, the river’s edge given the substantial,
attractive open space to be provided extending down to the river’s edge, in the context
of a site design which provides a high level of permeability through the site, combined
with the uses and attractions to be provided. The area will be lively24 but, it is
debateable however, whether the limited extent of non-residential uses here proposed
fits the description of a “lively blend” in relation to the uses specified in the provision
above. Further it is difficult to conclude that it provides a mix which would fairly be
described as “balanced” or a component of non-residential centre activities which
24 T5-68 L 44–T5-69 L 5.
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23
would fairly be described as “significant” for the purposes of PO3 of the TANP. I
note that Mr McKerrell (the architect called by the co-respondent) thought that
PO11(b) contemplates a wider range of supportive uses than proposed25 and that the
proposal does not involve a “lively blend” of uses nor a significant component of non-
residential centre activities.26 The written submissions for the co-respondent
acknowledged that the proportion of non-residential centre activites proposed is
“modest” and that the proposed blend does not include all of the elements referred to
in OO(4)(h).
[58] Mr Schomburgk also agreed that the proposal does not include a significant non-
residential component. However, he was of the view that an appropriate balance can
nevertheless be achieved across the centre as a whole. That may be so and OO(4)(b)
and (c) do refer to the precinct as a whole whilst OO(4)(a) of the MCZC must be read
with OO(4)(e) which contemplates development for residential use in the MCZC.
OO(4)(h) of the TANP Code however relates to the subject site and PO3 and PO11
of the TANP Code form part of the assessment criteria for particular applications. Mr
Schomburgk’s point about the centre as a whole does not avoid a conclusion that there
is a level of conflict by reason of the limited provision of a non-residential
development in the subject proposal. I find that there is a level of conflict at least with
PO3 and, in my view, also with OO(4)(h) although not with PO11(b). My ultimate
decision in this matter would not however alter, even if I had concluded that there
was a degree of conflict with PO11(b) by reason of there being insufficient supportive
uses.
(ii) Integration with the Toowong Centre
[59] The TANP Code contemplates that the subject site will integrate with and be
accessible from the Toowong Centre. Insofar as the appellant’s “central provisions”
are concerned:
(a) OO(3)(k) of the TANP Code provides that new development along the
river’s edge on the subject site improves public river access, and
(b) PO11(a) of the TANP Code provides that development on the site
“enhances the pedestrian experience with high quality building design,
25 T5-7.
26 T5-9.
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24
streetscape and waterfront amenities providing a direct and tangible
linkage between Toowong and the river.”
[60] The written outline of submissions for the appellant also referred, in this regard to:
(i) OO(3)(o) of the TANP Code, which speaks of “development
encouraging walking, cycling and public transport as attractive options
for daily travel for residents, employees and visitors, and improves
pedestrian/cycle connections to key destinations;
(ii) OO(4)(g) of the TANP Code, extracted and discussed earlier, and
(iii) OO(4)(i) of the TANP Code which provides that “…development
promotes pedestrian movement to and from public transport and
centres”.
None of these provisions however, appear in the appellant’s issues, far less the list of
central provisions, but the development does not, in any event, conflict with them.27
[61] In applying the provisions which are in issue to the subject development, it must be
recognised that the site is physically separated from the remainder of the precinct by
Coronation Drive and the railway line. The proposal cannot undo that. There are,
however, signalised pedestrian crossings on Coronation Drive and a pedestrian
overbridge located to the south of the subject site. In that context, the site offers an
opportunity, taken up by the proposal, to provide a connection through to the river.
Insofar as the central provisions referred to above are concerned:
(a) the proposed development on the subject site does improve public
river access. The proposal is to provide access extending to and along
the river’s edge, in the context of a development which has been
designed to be very permeable (a matter discussed later) and to
designate a large part of the site, extending to the river’s edge, for a
publicly accessible open space providing high quality pedestrian
connections to and through the site from Coronation Drive and Archer
Street, and
(b) PO11(a) focuses upon enhancing the pedestrian experience and
providing a direct and tangible linkage between Toowong and the
river. For the reasons discussed elsewhere, the pedestrian experience
27 The development is well located in relation to walking, cycling and public transport opportunities.
OO(4)(g) is discussed earlier.
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25
is not particularly positive at present and there is no linkage between
Toowong and the river. The proposal would change that by providing
a direct and tangible linkage, through the site, between Toowong and
the river, enhancing the pedestrian experience with high quality
building design (discussed later), streetscape (also discussed later) and
amenities through to the waterfront.
[62] My ultimate conclusion would not have altered even had I found a degree of conflict
by reason of a lack of more extensive waterfront amenities. The amenities and
attractions (including the open space areas themselves) throughout the site, down to
the waterfront will enhance the pedestrian experience and provide a direct and
tangible linkage. The conflict would not be grave.
Height
[63] The appellant contends that the proposal is in conflict with CP2014 by reason of its
height. Central to that contention is A01.1 of the TANP28, which provides as follows:
“A01.1
Development complies with the number of storeys, building height
and minimum site frontage in table 7.2.20.3.3.B.
Note – neighbourhood plans will mostly specify maximum number of
storeys where zone outcomes have been varied in relation to building
height. Some neighbourhood plans may also specify height in metres.
Development must comply with both parameters where maximum
number of storeys and height in metres are specified.”
[64] Table 7.2.20.3.3.B (“the table”) specifies 15 storeys for development of a site of
1500m² or more with a minimum frontage of 36m in sub-precinct NPP-001C. All
three towers in the proposal substantially exceed that number of storeys (2 x 24
28 The appellant’s central provisions also include PO6 of the MDC which provides that development
has a building height that is consistent with the streetscape, local context and intent for the area
having regard to, amongst other things, the predominant height of existing or approved buildings in
the street, and providing appropriate separation and a sensitive transition between houses and higher
scale building forms. The changing face of Toowong, in terms of building height, has been referred
to. Transition is dealt with later. The intent for the area is more fully dealt with in the TANP Code.
Understandably, it is the provisions of the TANP Code with respect to height which were the focus
of this issue. I have found conflict in relation to height. That there is some conflict also with PO6 of
the MDC does not add greatly to a consideration of this issue and does not alter my ultimate
conclusion that approval is warranted notwithstanding conflict in relation to height.
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26
storeys and 1 x 27 storeys). That does not, of itself, establish conflict, because
acceptable outcomes are not mandatory.
[65] The appellant sought to make something of the relatively tall absolute height of the
buildings (2 x approximately 105m and 1 x approximately 114m), as being the
equivalent of the height of more conventionally designed residential buildings with a
greater number of storeys. The absolute heights of the residential towers are increased
by the tapered bases up to the first residential storey and by rooftop elements which,
as Mr McKerrell (the architect called by the co-respondent) noted, are integral aspects
of the architectural design. The TANP Code is however, not one which specifies
height in metres. Its concern is for the number of storeys. That leaves scope for the
incorporation of elements which achieve a variation in terms of absolute height.
Reasonable expectations must include the prospect of such variation and rather than
a height limit in absolute terms.
[66] Since the proposal departs from the acceptable outcome, it is necessary to consider
whether it nevertheless meets the corresponding performance outcome (P01). That
performance outcome relates not just to building height, but scale and form as well
(matters discussed later). It provides:
“P01
Development is of a height, scale and form that achieves the intended
outcome for the precinct, improves the amenity of the neighbourhood
plan area, contributes to a cohesive streetscape and built form
character and:
(a) is consistent with the anticipated density and assumed
infrastructure demand;
(b) is aligned to community expectations about the number of
storeys to be built;
(c) is proportionate to and commensurate with the utility of the site
area and frontage width;
(d) is designed to avoid a significant and undue adverse amenity
impact to avoid affecting adjoining development;
(e) is sited to enable existing and future buildings to be well
separated from each other and to avoid affecting the
development of an adjoining site;
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(f) retains the significant views of Mt Coo-tha or the Brisbane
River.
Note – development that exceeds the intended number of storeys or
building height can place disproportionate pressure on the transport
network, public space or community facilities in particular.
Note – development that is over scaled for its site can result in an
undesirable dominance of vehicle access, parking and manoeuvring
areas that significantly reduce streetscape.”
[67] The first note to that provision refers to pressure on transport network, public space
or community facilities. In this regard, OO(3)(m) of the TANP Code provides that:
“Development achieves a height and density that makes efficient use of land,
but does not overburden local transport, infrastructure, public space or
community facilities”
OO(3)(m) did form part of the appellant’s issues, but was not one of the central
provisions. The proposal does achieve a height and density which makes efficient use
of the site and, for the reasons discussed later, does so without having an
overburdening effect. Indeed, it would make a positive contribution to public space
whilst locating residents conveniently relative to the transport network (without the
network thereby placed under pressure) and without otherwise overburdening
infrastructure.
[68] The concern in the second note is not one which would be realised by the subject
development, which has only one vehicular access to each frontage, locates parking
in the basement levels, and gives over much of the site, at ground level to publicly
accessible open space.
[69] Insofar as height is concerned, attention focused on P01(b) and the identification of
community expectations in relation to the number of storeys to be built. It was
submitted, for the appellant, that community expectations would largely be informed
by reference to the 15 storeys specified in the table which, it was submitted,
substantially sets the reasonable expectations of the community.
[70] I accept that community expectations would be at least in part informed by the table,29
but they cannot necessarily be limited to the height specified in a table referred to
29 See Norfolk Estates Pty Ltd v BCC [2016] QPEC 009 [33].
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28
only in an acceptable outcome. It would be reasonable to expect development up to
the number of storeys specified and possibly something greater on a performance
based assessment.30 Senior counsel for the appellant accepted,31 in the course of oral
submissions, that the “person in the street” would regard some excess above 15
storeys as being a potential, but not the extent of excess here proposed.
[71] Expectations may also be affected by other existing and approved development in the
locality. The area is rapidly transforming with the development of new high-rise
development, but there is nothing to which one could point in this case which would
support a community expectation of the number of storeys proposed by the co-
respondent for this site.
[72] It was submitted, for the co-respondent, that whilst the table might be the start of an
assessment of community expectations, it is far from the end of the matter. It was
pointed out that the 15 storey height specified in the table applies to all land in the
sub-precinct. It was submitted that community expectations as to height must also be
informed by the designation of this particular site both as a landmark site and as a
catalyst site, which, it was contended, “conveys something above the ordinary,
particularly when coupled with the major centre zoning.” It was further submitted
that, in practical terms, to achieve visual prominence, as a landmark site, in this
locality and having regard to other existing, approved and likely future development
in the area, development on the subject land will need to exceed 15 storeys and that,
as a consequence, it is “unrealistic for the community to expect that the height of
development on the subject land would be limited to 15 storeys.”
[73] The height of the proposed development may, in context, assist in enhancing it as a
landmark (a matter discussed later) but, as was pointed out for the appellant, there is
nothing in the provisions relating to the landmark site designation, the catalyst site
designation or the major centre zoning, which gives rise to an expectation of
development on this site being to the number of storeys proposed. Indeed, as was
pointed out for the appellant, there are other neighbourhood plans which provide for
some specified increase in maximum height for landmark sites, but that is not the case
with respect to the TANP Code. That does not mean that landmark sites can never
exceed the height specified in a table referenced in an acceptable outcome, but neither
30 Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64.
31 T12-17.
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29
the landmark site nor the catalyst site designations in this case provide the basis for
an expectation of development to the height of this proposal.
[74] Expectations, insofar as they are affected by the table, would also take into account
what it specifies for other sub-precincts of NPP-001. Whilst 15 storeys is the greatest
height specified in the NPP-001c sub-precinct applicable to the subject site, there are
greater heights specified for other sub-precincts of NPP-001. In particular, for sub-
precinct NPP-001b, a height of up to 20 storeys is specified, and for NPP-001a up to
25 storeys. Further, the overall outcomes for NPP-001 include that “Sherwood Road
accommodates the tallest buildings in the precinct.” Hence the height of the subject
proposal is not only substantially greater than specified in the table for the sub-
precinct within which it falls, but it is also significantly greater than is provided for
in the table for sub-precinct NP-001b, and it also rivals the likely height of buildings
for that part of the precinct which is intended to accommodate the tallest buildings.
[75] It was pointed out, for both the respondent and the co-respondent, that the heights
specified for the other sub-precincts in the table are not inviolate, must be read with
OO(3)(h) (discussed later) and do not prohibit tall buildings elsewhere. That may be
so, but the specified heights for those sub-precincts sit uncomfortably with the notion
of a reasonable expectation of buildings up to the number of storeys here proposed in
sub-precinct NPP-001c.
[76] Even if reasonable expectations are not limited to 15 storeys, I do not consider that
the height of this particular proposal is aligned to community expectations about the
number of storeys to be built. It therefore does not meet P01 in relation to height.
[77] That is not however, the end of the matter. CP2014 permits compliance to be
achieved by meeting the purpose and overall outcomes of the code. Relevantly to
height, OO(3)(h) of the TANP provides:
“Development is of a height, scale and form which is consistent with
the amenity and character, community expectations and infrastructure
assumptions intended for the relevant precinct, sub-precinct or site and
is only developed at a greater height, scale and form where there is
both a community need and an economic need for the development.”
[78] That provision admits of the prospect of development occurring, consistently with the
overall outcome, where it exceeds a height which is consistent with community
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30
expectations, provided there is both a community need and an economic need for the
development. Need is considered later in these reasons, but three things should be
noted about this provision.
[79] First, it requires a community and economic need “for the development” rather than
specifically for the amount by which the number of storeys exceeds community
expectations. Secondly, demonstration of a community and economic need does not
entitle an applicant to approval. There is a residual discretion. As was submitted for
the Council:
(a) if it can be demonstrated that both a community need and an economic
need are present for the development, that then permits a balancing
consideration to take place;
(b) the community need and economic need do not have to be specifically
demonstrated for the amount which is not “consistent” with the
amenity and character, community expectations and infrastructure
assumptions for the relevant precinct, sub-precinct or site;
(c) nor does the community need and economic need have to be
specifically demonstrated for the amount which, for example in the
case of building height, the proposed development exceeds the
building height specified in an acceptable outcome;
(d) community need and economic need must be for “the development” –
meaning the totality of what is proposed;
(e) the balancing consideration that a demonstration of both community
and economic need opens up, is a balancing not just of the community
need and economic need against amenity impacts – it is a balancing
consideration of all positive and negative attributes of the proposed
development (for example, particular community benefits might
weigh in favour of approval even where a proposal is not consistent
with the community expectations);
(f) it is not correct to construe the overall outcome as meaning that if
community need and economic need are established, a development
that is not “consistent” should or will then be approved – there is no
presumption – establishing community need and economic need
simply enlivens a balancing exercise as described above; and
(g) there is a wide discretion.
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31
[80] The proposal’s relative merits (apart from need) are otherwise discussed in the course
of these reasons and in my view warrant the exercise of discretion favourably to the
proposal.
[81] Thirdly, whilst the provision states that a site will “only” be developed at a greater
height, scale and form where there is community and economic need, such provisions
of a planning scheme, whilst deserving attention,32 cannot render nugatory the
statutory discretion to approve notwithstanding conflict with the provisions of a
planning scheme. Senior counsel for the appellant accepted as much.33 The matters
relevant to that discretion are discussed later in these reasons. Even if there were a
conflict with OO(3)(h), this is, in my view, an exceptional case in which the proposal
warrants approval notwithstanding.
Bulk and Scale
[82] There are a number of provisions pleaded by the appellant which assert that the bulk
and scale of the proposed development would be unacceptable. Of those provisions,
the appellant submitted that the most significant is PO19 of the Centre or Mixed Use
Code (CMUC).
[83] PO19, and AO19, provide:
PO19
Development ensures that the building
bulk and scale is consistent with the
intended form and character of the
centre, mixed use or local area
considering:
(a) existing buildings to be
retained;
(b) existing significant vegetation;
(c) significant infrastructure
constraints;
(d) adjoining existing and proposed
building heights;
(e) adjoining existing and proposed
building setbacks and
separation of building necessary
to ensure impacts on amenity
and privacy are minimised;
AO19
Development is contained within the
building envelope for the site by
applying:
(a) the maximum building height;
(b) building height transition
requirements, where required;
(c) front, rear and side setback
requirements;
(d) building separation
requirements;
(e) car parking setback
requirements;
(f) active frontage requirements for
stand-alone shopping centres or
shop or for development in
traditional strip centres or
corridors.
32 Stradbroke Island Management Organisation Inc. v Redland Shire Council (2002) 121 LGERA 390.
33 T12-35, 36.
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32
(f) building height transitions
where required.
[84] The proposed development departs from AO19, and so it is necessary to consider the
development against PO19. It was submitted, for the appellant, that the proposal
conflicts with the provisions for the following reasons:
(i) the bulk and scale of the proposed development is wholly inconsistent with
the bulk and scale of Middenbury;
(ii) inconsistency with the height of the appellant’s house and the approved
adjoining multi storey dwelling at 20 Archer Street;
(iii) inappropriate setbacks and building separation both internal and external to
the site, and
(iv) disregard for building height transition, particularly in respect of Archer
Street.
As is apparent, the appellant’s arguments on bulk and scale overlap with its case about
height.
[85] It is obvious that the proposed towers are much larger and taller than Middenbury,
the appellant’s residence and the approved multi-storey development at 20 Archer
Street. That does not necessarily mean however, that the proposal conflicts with
PO19. As was submitted for the council, PO19 does not require development to be
consistent with the existing buildings to be retained or adjoining existing building
heights. Rather, it requires building bulk and scale to be consistent with the “intended
form and character of the centre…considering” the things in (a) to (f).
[86] The intended form and character of the centre and, in particular, that part containing
the subject site, is as provided for in the provisions of CP2014, most specifically in
the TANP. It was contended, for the co-respondent, both during the development
application stage and in the course of the appeal, that a greater number of units, across
5 buildings, could be developed on the site in a code assessable application. None of
the hypothetical scenarios put forward however, were sufficiently resolved to
demonstrate that they met all acceptable outcomes of all relevant codes. I have not
placed weight upon those particular scenarios. It is evident however, given the size
of the site, the development parameters (even as provided for in the various acceptable
outcomes) including as to maximum building height and maximum tower site cover
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33
(50%) and the intentions of the Scheme for the site as otherwise set out in the TANP,
that development of this site, as intended by the planning scheme, will be substantial,
and indeed, of a substantially greater scale than the appellant’s residence or
Middenbury or the approved multi-unit development at 20 Archer Street. Further, as
to the bulk of the towers, it should be noted that the horizontal dimensions of the
towers (which range from between 31.6m and 32m) are comfortably within the 40m
figure specified in AO1.4 of the TANP.
[87] The height of the proposed towers does not speak of over-development in the sense
of trying to fit too much development on the site. Rather, when regard is had in
particular to the very low site cover,34 it speaks of a proposal which arranges
development in a more vertical form, with a building height that would not reasonably
have been expected, rather than too much development or development which is
otherwise too bulky in its form.
[88] That is not to say that existing and proposed development is to be ignored for the
purposes of PO19. It is to be considered, but for the purpose of ensuring that building
bulk and scale is consistent with the intended form and character of the centre. That
is considered later, as are the matters of setbacks, building separation and height
transitions. I accept that there is a level of conflict with PO19, not least by reason of
height, but for the reasons stated herein, I am satisfied that the level of conflict is not
accompanied by any undue impact.
[89] Scale and form are also dealt with in PO1 of the TANP. It refers to the intended
outcome for the precinct and seeks development of scale and form which, amongst
other things:
is proportionate to and commensurate with the utility of the site area and
frontage width;
is designed to avoid a significant and undue adverse amenity impact to
adjoining development, and
is sited to enable existing and future buildings to be well separated from each
other and to avoid affecting the development of an adjoining site.
34 T5-76. Note also the relatively low plot ratio relative to recent approvals in the Toowong Centre. See
exhibit 75 and exhibit 6, para 5.5.3(i).
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34
[90] The proposal takes advantage of its generous site area and frontage width. Building
separation and amenity impact are considered later and I am satisfied that the building
separation is adequate and results in no undue impacts.
Building separation
[91] Building separation is dealt with in PO25 of the CMUC and PO8 of the multiple
dwelling code (MDC). Of those, only the former is included in the appellant’s central
provisions. The provisions are in very similar terms. PO25 of the CMUC (together
with the relevant AO) provides as follows.
PO25
Development ensures that the separation
of buildings within a site and to an
adjoining existing or future building
which includes a residential dwelling:
(a) is consistent with the form and
character intent for the local
area;
(b) is located to provide residential
amenity including access to
natural light, sunlight and
breeze;
(c) provides a degree of visual
privacy via site planning and
design without a reliance on
fixed screening;
(d) reasonably addresses and
considers the amenity of
adjoining residents and future
development potential.
AO25.1
Development ensures that the building
separation within a site and to adjoining
buildings is in compliance with Table
9.3.3.3.E.
AO 25.2
Development ensures that the building
separation to an adjoining residential
building:
(a) complies with Table 9.3.3.3.E;
or
(b) positions the primary balcony or
private open space to street or
rear;
(c) offsets balconies or habitable
rooms so they are positioned
outside the cone of vision of
existing or approved habitable
rooms or outdoor spaces; or
(d) uses moveable or adjustable
screening to regulate privacy
between lots or dwellings which
do not exceed balcony screening
acceptable outcomes.
[92] Table 9-3.3.3.E provides:
Building height
(storeys and m)
Minimum building separation (m)
Facing habitable
rooms with
windows or
balconies
Habitable rooms
or balconies
facing non-
habitable rooms
with windows or
blank walls
Non-habitable
rooms with
windows or blank
walls
-- 34 of 121 --
35
Ground to 4.5m 3 1.5 0 if blank with no
windows
1.5 if non-
inhabitable with
windows
2 storey to 7.5m 9 6 0 if blank with no
windows
3 if non-
inhabitable with
windows
3 to 5 storeys 12 9 0 if blank with no
windows
6 if non-
inhabitable with
windows
6 to 8 storeys 18 12 9
9+ storeys 24 18 12
Podium or roof
terraces
Located to achieve separation in accordance with the
relative level of the podium or roof location as above, along
with design elements to ensure the privacy and amenity of
residents within the site and on adjoining or adjacent sites.
[93] PO8 (and its acceptable outcome) of the MDC proceeds as follows:
PO8
Development separates buildings from
existing or future buildings within a site
or an adjoining site to:
(a) be consistent with the form and
character intent for the local
area;
(b) protect residential amenity
including access to natural light,
sunlight and breeze;
(c) provide visual privacy to reduce
the need for fixed screening.
AO8.1
Development provides building
placement and design that:
(a) complies with Table 9.3.14.3.F;
or
(b) positions the primary balcony or
private open space to face the
street frontage or rear boundary
or adjoining public open space;
(c) offsets balconies or habitable
rooms so that they are positioned
outside the cone of vision of
existing or approved habitable
rooms or outdoor spaces.
Refer to Figure g and Figure h.
Note – This is demonstrated by a site context
plan that includes adjoining and adjacent
buildings and strategies to address separation
issues.
Note – Considered site planning and design and
strategies such as offsetting balconies, the
location of private space, selective screening or
other design elements can reduce building
separation requirements.
AO8.2
-- 35 of 121 --
36
Development with a secondary private
open space or balcony used for drying or
services is located to the side boundary
with fixed screens.
[94] Table 9.3.14.3F is as follows:
Building height Minimum building separation (m)
Facing habitable
rooms or
balconies
Habitable rooms
or balconies
facing non-
habitable rooms or
blank walls
Non-habitable
rooms or blank
walls
Ground and up to
4.5m
3 1.5 1.5m or where
built to boundary
walls permitted –
0.0m
2 storeys and up
to 7.5m
9 6 3
3 to 5 storeys 12 9 6
6 to 8 storeys 18 12 9
9+ storeys 24 18 12
Podium or roof
terraces
Located to achieve separation in accordance with the relative
level of the podium or roof location as above, along with
design elements to ensure the privacy and amenity of
residents within the site and adjoining or adjacent sites is not
negatively impacted
Note – Separation distances are intended to protect amenity and provide for private open spaces on
upper levels that do not require screening for privacy.
Note – Considered site planning and design and strategies such as offsetting balconies, the location of
private space, selective screening or other design elements can reduce building separation
requirements.
[95] Mr Richards (the architect engaged by the appellant) approached the matter on the
basis that, since the proposed towers exceed 9 storeys they must, in order to meet the
acceptable outcomes, have a separation, at all levels, of at least 24m. As Mr Peabody
(the architect engaged by the respondent) pointed out, adoption of the acceptable
outcome, particularly construed in that way, would severely reduce the development
potential of many in-fill sites. Reference to Drawing JER 02A, prepared by Mr
Richards, shows that adoption of a 24 m separation (and allowing for retention of the
view corridor between Middenbury and the river) would leave a relatively small
proportion of the site remaining. Mr Richards accepted that on his approach, the area
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37
left for development of, say, a 15 storey development, would be very severely
constrained35 and that application of the 24m creates what he described as an
“onerous” constraint on development.36 That is difficult to reconcile with the intent
of the planning scheme concerning the efficient use of land. I note that the high-rise
Aspect development does not provide separation distances on the land as envisaged
by Mr Richards’ approach.
[96] AO8.1 of the MDC directs reference to Figures g and h. Figure g is as follows:
It suggests that table 9.3.14.3F is to be applied in a staggered, or ‘wedding cake’
configuration. That is, the 24 metre does not apply until level 9. A reduced separation
is envisaged below that. Table 9-3.3.3.15 should be applied in a harmonious way.
[97] To the extent that the acceptable outcome is not adopted, attention turns to the
performance objective. The appellant relied upon the evidence of Mr Richards to the
effect that the building separations would cause amenity impacts for residents both
internal to the site and on adjoining land.
35 T6-7 L 18, T6-9 L 24.
36 T6-9 L 38.
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38
[98] The 3 towers proposed on the site are reasonably well separated. The separation
between Towers A and B is 34.6m at the narrowest part of the towers and 21.5m at
the widest part of the towers. Whilst the same dimensions are 35.1m and 21.5m
respectively in the case of Towers A and C,37 Mr McKerrell described the separation
as generous. Mr Peabody’s assessment, which I accept, is that:
“I consider there is an acceptable distance between the 3 towers elements to
afford visual privacy between apartments in different towers which is not
dissimilar to the relationships of other tower development in Brisbane.”
[99] Mr Chenoweth also did not consider the proposed buildings to be unacceptably close
to each other.38 There was no significant concern raised about access to light, sunlight
and breezes for units within the proposed development. I consider that Mr Richards’
concerns for amenity of residents on the site reflect an overly conservative
assessment.
[100] Insofar as separation from buildings on adjoining properties are concerned, a note to
table 9.3.14.3 states that considered site planning and design can reduce building
separation requirements. In this case the tapered design of the towers and the
incorporation of a foyer means that the base of the towers are further separated from
buildings on adjoining sites and there will be no units of the towers which directly
face habitable rooms or balconies of existing or approved development from level 9
and above. The lowest habitable levels in the towers are well above the roof of the
appellant’s property. They are vertically as well as horizontally separated.39 Only
some units on a few levels in tower A will face the approved development at 20
Archer Street and those are well below the 9th storey.40
[101] A note to table 9.3.14.3F states that the separation distances are intended to protect
amenity and provide for private open space on upper levels that do not require
screening for privacy. There would be no need for screening for privacy on the upper
levels of the proposal. The potential impact upon the amenity of adjoining residents,
particularly the appellants, is considered later and would not, in my view, be undue.
Consistency with the form and character intent for the local area is considered later
37 Exhibit 7, p 10.
38 T2-69.
39 T2-63, 64, 67 (Chenoweth).
40 I note that the council’s approval package contained some provisions about screening (Condition 18)
which could be varied or augmented in other conditions imposed by the Court if it were thought
appropriate.
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39
in the context of the design issues and, in my view, is established. The performance
objectives are met.
Setbacks
[102] There are a number of provisions of CP2014 which relate to setbacks. The appellant
relies upon PO2 and AO1.2 of the TANP Code as part of its central provisions.
Another “central provision” is OO(3)(k) which speaks of “appropriate” building
design using, amongst other things, setback.
[103] Reference was made to Table 7.2.20.3.3.C. of the TANP Code which sets out
minimum side building setbacks within the centre zones as follows:
Any development
in the zone
Up to 8 storeys 0m 3m for non-
residential
3m for residential
(5m if windows of
habitable rooms
are orientated
towards the
boundary)
Podium 0m 0m (5m if the
windows of
habitable rooms
are orientated
towards the
boundary)
Tower 5m 5m (8m of the
windows are
orientated towards
the boundary)
10m where
adjoining a low-
medium density
residential zone
[104] If the 8m setback were applied to Tower B then the area of encroachment is some 19-
26m2 on each level between 5 and 22 (there is a variation because the building is
shaped). Application of the 10m setback to Tower A would yield an encroachment
area of 41-65m2. In both cases the encroachment is for a length of approximately
10.5m. The setbacks are greater below level 5. The tapered base of the towers
achieves a much greater setback at ground level. By comparison, reference to the
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40
table reveals that the podium of a tower-over-podium design approval could have a
0m or 5m setback depending on whether it had windows of habitable rooms orientated
towards the boundary.41
[105] Two things should be noted in relation to the table. First, it is referenced in an
acceptable outcome. Despite the reference to “minimum” setbacks, the non-adoption
of a setback referred in an acceptable solution does not amount to conflict with the
planning scheme.
[106] Secondly, the table has a note which provides:
“Setbacks on catalyst sites as identified in Figure a are to be determined
through a structure planning process.”
[107] Accordingly, even the table, read in isolation, does not apply the stipulated minimum
to the subject site.
[108] Turning to the performance outcome,42 it was submitted, for the appellant, that the
proposal is in conflict because of its impact on amenity. That is considered later and,
for the reasons given, I do not consider that there would be a significant and undue
impact associated with the setbacks. The performance outcome is achieved.
Infrastructure
[109] Infrastructure is referred to in OO(3)(h) of the TANP Code, extracted earlier when
discussing height, and in the following 2 provisions of the TANP Code:
“OO(3)(m) Development achieves a height and density that makes efficient use
of land, but does not overburden local transport, infrastructure, public
space or community facilities.”
“P01 Development is of height, scale and form that achieves the intended
outcome for the precinct, improves the amenity of the neighbourhood
plan area, contributes to a cohesive streetscape and built form
character and:
(a) is consistent with the anticipated density and assumed
infrastructure demand…”
41 See exhibit 6, pp 124, 138.
42 PO1 of the TANP Code.
-- 40 of 121 --
41
[110] OO(3)(m) seeks to avoid overburdening infrastructure. It formed part of the
appellant’s issues, but not its central provisions. The uncontradicted evidence of Dr
Johnson (the only expert to report on infrastructure) is to the effect that the proposal
would not cause any overburdening effect on water supply or sewerage (subject to
Queensland Urban Utilities requiring some relatively minor upgrades) and that there
is no problem with respect to the management of stormwater. I accept that evidence.
The traffic engineers did not raise any concern about the capacity of the surrounding
road network to accommodate traffic associated with the development.
[111] It was pointed out, for the appellant, that OO(3)(h) and P01 refer to “infrastructure
assumptions” and “assumed infrastructure demand” respectively. It was submitted
that the co-respondent had not established consistency with the relevant assumptions.
[112] S4.2.2 of CP2014 provides as follows:
4.2.2 Development inconsistent with assumptions about future development
Development is inconsistent with the assumptions about:
(a) the type and location of development, if:
(i) for premises completely or partly outside the priority infrastructure
area; or
(ii) for premises wholly within the priority infrastructure area, where the
type of development of the premises as stated in section 4.3.7
(Development categories and planning scheme uses) is not planned
to occur in that location under the planning scheme identified in
section 4.1.3 (Relationship to planning scheme) and Map A1 Priority
Infrastructure Area; or
(b) the scale of development, if the density and demand of the development of
the premises exceeds the planned density and demand for the development
of the premises as stated in section 4.3.10 (Assumed scale of development)
and section 4.3.15 (Planned demand); or
(c) the timing of development, if the development results in trunk infrastructure
being supplied earlier than planned for in the schedule of works for trunk
infrastructure in section 4.6.2 (Schedule of works)
[113] It was submitted, for the respondent, that the court need not examine ss 4.3.10 or
4.3.15 of CP2014, as the appellant had not alleged conflict with the provisions of Part
-- 41 of 121 --
42
4 of CP2014. PO1 and OO(3)(h) were however, in issue. The assumed scale of
development for precinct NPP-001c of the TANP was traversed in Dr Johnson’s
report. The rates in table 4.3.10.1 are not allotment specific. Dr Johnson calculated
that the proposed development would generate a demand of about 1093 equivalent
persons (including a 10% contingency) which is greater than his calculated
proportionate development density for the site (by reference to the assumed scale of
development) of 704 equivalent persons. As he explained, those areas where the
predominant land use is residential exert higher demands than areas of retail and
commercial. Dr Johnson’s report however, shows that the proposed development will
not exert unacceptable impacts on the existing municipal networks.
[114] Mr Schomburgk, in the joint report of the town planners,43 pointed out that the
proposed development seeks to take up less than one third of the assumed multiple
dwelling development in the Major Centre zoned land within the TANP, in
circumstances where the vast majority of land in that zone in Toowong is developed
for commercial uses, with little or no multiple dwellings.
[115] The obvious purpose of provisions of this kind is to ensure that development is not
beyond reasonable infrastructure demands and does not prejudice the planned use of
infrastructure for existing and planned development in the area. Accepting some
inconsistency with the assumptions, the evidence satisfies me that the proposal will
not, in fact, be an unreasonable burden on infrastructure. Further, insofar as OO(3)(h)
is concerned, I have, for the reasons given elsewhere, found that there is both a
community need and an economic need for the development and that the discretion
to approve should be exercised. I am satisfied that the gravity of any conflict in this
regard is relatively slight and is overwhelmed by the merits of the proposal otherwise.
Heritage issues
(i) Introduction
[116] It has already been observed that the TANP contains provisions for the heritage value
of Middenbury to be protected and enhanced, through the retention, refurbishment
and reuse of the building.44 The heritage overlay map in CP2014 maps the whole of
43 Exhibit 5, para 274.
44 OO(3)(l).
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43
the site as a local heritage place. Part of the site, being the State-listed trees,
Middenbury and a view corridor between Middenbury and the river, are a State
heritage place.
[117] The Heritage Overlay Code is an applicable code. The overall outcomes of that Code
include:
“(a) Development on or adjoining a heritage place does not detract
from the cultural heritage significance of that heritage place…”
[118] The relevant performance outcomes include as follows:
“PO1 Development provides for the future protection of the
heritage place and does not damage or diminish its cultural
heritage significance.
Note– where necessary, a heritage impact assessment report is prepared
verifying the proposal is in accordance with the Australian ICOMOS
Burra Charter.
PO2 Development is based on and takes account of all aspects of
cultural significance of the heritage place.
Note– where necessary, a heritage impact assessment report is prepared
verifying the proposal is in accordance with the guidelines to the Burra
Charter – Cultural Significance.
PO3 Development protects the fabric and setting of the heritage
place while providing for its use, interpretation and
management.
Note– where necessary, a heritage impact assessment report is prepared
verifying the proposal has been prepared in accordance with the
guidelines to the Burra Charter – Conservation Policy.
PO4 Development is based on the issues relevant to the
conservation of the heritage place.
Note– where necessary, a heritage impact assessment report is prepared
verifying the proposal is in accordance with the guidelines to the Burra
Charter – Procedures for Undertaking Studies and Reports.”
[119] There are no acceptable outcomes prescribed in relation to those performance
outcomes. The appellant alleges conflict with each of those provisions of the Heritage
Overlay Code.
[120] In addition to its inclusion within the Heritage Overlay Code in CP2014, part of the
site is on the Queensland Heritage Register. The Chief Executive administering the
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44
Sustainable Planning Act 2009 was a concurrence agency for the application. The
Chief Executive was required to undertake the referral agency assessment, having
regard and giving the weight the Chief Executive was satisfied was appropriate, to
the relevant provisions of the State Development Assessment provisions that were in
effect when the application was properly made, namely the State Development
Assessment Provisions Version 1.4 (effective 20 June 2014) and Module 9 of the
Queensland Heritage State Place Code (QHSPC). That code included the following
performance outcome:
“PO1 Development does not destroy or substantially reduce the
cultural heritage significance of a state heritage place unless
there is no prudent and feasible alternative to carry out the
development.”
[121] The Chief Executive’s referral agency response was supportive of approval of the
development subject to the imposition of conditions. It maintains that position in the
appeal.
[122] There was a deal of argument as to whether the appellant’s appeal rights extend to
issues with respect to:
(a) Compliance with provisions of the Queensland Heritage
Regulation 2003 Schedule 2, Queensland Heritage
Regulation 2015 Schedule 2 and Queensland Heritage Place
State Code; and
(b) The adequacy of the assessment by the Chief Executive.
[123] Ultimately, the appellant did not pursue the submission that the Queensland Heritage
Regulation 2003 (QHR 2003) and the Queensland Heritage Regulation 2005 (QHR
2005) are applicable to impact assessment, but maintained that P01 of the QHSPC
was relevant and that, in considering it, some regard can be had to QHR 2003 and
QHR 2005, particularly S5 and P5 which provide as follows:
S5 Development does not adversely affect the character, setting or appearance
of the local heritage place.
P5 The scale, location and design of the development is compatible with the
character, setting and appearance of the local heritage place.
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45
The development is unobtrusive and cannot be readily seen from the
surrounding streets or other public places.
[124] It is unnecessary for me to resolve that debate. The Chief Executive accepts that,
pursuant to s 495(4)(a) of SPA, this court is not prevented from considering and
making a decision about those grounds of appeal that relate to cultural heritage
significance merely because the Council was obliged to impose conditions contained
in the Chief Executive’s concurrence agency response. Further, it acknowledges that
this court is entitled to consider the impact of the proposed development on cultural
heritage significance at least on those grounds of appeal which relate to the Heritage
Overlay Code under CP2014. It was common ground that, from a practical
perspective, there was ultimately little difference between the parties in relation to
matters of principle.
[125] Middenbury is an 1865 villa residence occupying part of the subject site. Although
the subject land has had a long history of occupation and use, it was occupied solely
by Middenbury for a period of only 17 years until 1882, when the adjoining Sidney
House was built. Sidney House was demolished in 1958 to make way for new
buildings for the ABC. The ABC then constructed a number of buildings that were
unsympathetic to the architecture of Middenbury and obscured it from view, but
which remained in place until recently demolished by the co-respondent.
[126] As was pointed out for the co-respondent, whilst Middenbury has been preserved
from demolition, it has, for much of its recent history, not been enhanced by its
surroundings. The proposed development seeks to change that not only by protecting
Middenbury from demolition but also by refurbishing it, enhancing its setting and
making Middenbury available to the public. It also proposes the adaptive reuse of
Middenbury. Adaptive reuse assists in assuring the preservation of a heritage site by
giving the site an active use so as to avoid the possibility of a building falling into
disrepair through underutilisation and neglect. In the present case, the adaptive reuse
will also provide the further benefit of enabling full public access to Middenbury.
The proposed adaptive reuses are as follows:
(i) café;
(ii) restaurant, and
(iii) community facilities which will display historical
information relevant to the subject land and its previous
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46
uses and provide an interpretive facility for the sculpture
park otherwise proposed on the subject site.
(ii) Mapping
[127] There was a debate amongst the heritage experts as to whether the inclusion of the
whole of the subject site as a local heritage place on the heritage overlay in CP2014
is a mistake. The Council had a Heritage Register Planning Scheme Policy under City
Plan 2000. Immediately prior to the commencement of City Plan 2014, the register
had an entry for “Residence Middenbury” which was described as “part” of Lot 13
on RP 104400. The Council file contained a map that showed the Queensland
Heritage Register boundary. There is no Council document which indicates that the
site is considered to have any heritage significance beyond that described in the
Queensland Heritage Register entry or which otherwise gives an explanation for
including the whole of the site within the overlay.
[128] It is ultimately unnecessary to pursue the circumstances as to how the mapping came
to be as it is. All three heritage experts accepted that the Brisbane City Council has
not produced a separate heritage citation for Middenbury and that the council
generally relies on the Queensland Heritage Register entry to the extent that it is also
relevant to the assessment criteria under CP2014. Consequently, it was agreed that
the Queensland Heritage Register statement of significance for Middenbury can be
adopted as the statement of significance at a local threshold of significance for
Middenbury. In short, the content of the cultural heritage significance of Middenbury
is not in issue.
[129] It would be somewhat surprising if there were any local heritage significance attached
to any part of the site beyond that shown as within the boundary on the State Register,
which is intended to protect the heritage significance, the same statement of which
underlies both the State and local mapping. It was pointed out however, that there are
other examples of where the mapping of a local heritage place is more extensive than
the state mapping. In any event, Mr Elliott’s (the heritage expert called by the co-
respondent) opinion, which I accept, is that the heritage significance of the site will
be appropriately protected and enhanced by the proposed development regardless of
the extent of the overlay mapping.45
45 T3-78; exhibit 14, para 34.
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47
[130] Accepting that the whole of the site is mapped as a local heritage place does not lead
to the conclusion that the whole of the place should be left undeveloped (to form the
setting of Middenbury). The provisions of CP2014, when viewed as a whole,
evidence an intention for the site (and indeed the centre of which it forms part) to be
the subject of substantial new development, albeit development which pays due
regard to matters of heritage significance. Further, it does not follow that every square
metre of the site is of equal significance. I accept Mr Elliott’s assessment that
“a walk over the subject site confirms that any heritage values relate to Middenbury
and its relevant surrounds rather than every part of the subject site which contained,
until recently, many buildings used by the ABC which substantially obscured views
to Middenbury and were unsympathetic in their design.”
[131] It is the statement of significance and the assessment of the proposal’s impact upon
matters of significance upon which attention should ultimately focus.
(iii) Statement of Significance
[132] The statement of significance for Middenbury is as follows:
“Criterion A
Middenbury, erected in 1865, is important in demonstrating the evolution of
residential housing and pattern of settlement in Queensland, in particular the early
establishment of villa residences on the suburban periphery of Brisbane in the 1860s.
Through its form, materials, location and setting on the Brisbane River, Middenbury
makes an important contribution to our understanding of residential and social
hierarchies in early Brisbane.
Middenbury is also important for its association with Australian Broadcasting
Corporation (ABC), as a component of its Queensland television and radio production
facilities from 1957-2007.
Criterion D
Middenbury is important in demonstrating the principal characteristics of an 1860s
villa residence in Queensland, through its surviving formal plan, consisting of an
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48
entrance vestibule, large reception rooms, generously sized bedrooms, rear timber
service wings and the high quality workmanship and materials used in its
construction, including fine cedar joinery. Consciously sited in an elevated location,
the brick core with slate roof is surrounded on three sides by timber verandas accessed
by French doors, providing a generous space for entertaining and enjoying the views
to the Brisbane River and CBD.
Criterion E
Middenbury is important for its aesthetic value as an elegant and well-composed villa
residence designed to take advantage of its elevated position on the bank of the
Brisbane River. Encircled by verandas on three sides and orientated to capture
surrounding views, the house demonstrates picturesque qualities, standing out from
its surroundings when viewed from the river and the opposite bank at West End.
Two large fig trees, the only surviving elements of Middenbury’s former gardens, are
a landmark feature along Coronation Drive and make a significant contribution to the
streetscape.”
[133] With respect to those matters of significance, if the proposal proceeds;
(i) Middenbury will be retained and will continue to be an
example of a villa residence established on the suburban
periphery of Brisbane in the 1860s.
(ii) Middenbury will retain those aspects of the form, or formal
plan, that are important for demonstrating ‘the evolution of
residential housing’, ‘the principal characteristics of an 1860s
villa residence in Queensland’, ‘its aesthetic value as an
elegant and well-composed villa residence’ and its
‘picturesque qualities’ and that contribute to ‘our
understanding of residential and social hierarchies in early
Brisbane’ namely:
the entrance vestibule;46
large reception rooms;47
46 T4-34 ll 29-37.
47 T4-34 ll 39-40.
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49
generously sized bedrooms;48
timber verandas on three sides;49 and
French doors accessing the timber verandas.50
(iii) Middenbury will retain those aspects of the materials that are
important for demonstrating ‘the evolution of residential
housing’, ‘the principal characteristics of an 1860s villa
residence in Queensland’, ‘its aesthetic value as an elegant
and well-composed villa residence’51 and its ‘picturesque
qualities’, namely:
(i) fine cedar joinery with high quality workmanship;52
(ii) a brick core;53
(iii) a slate roof;54 and
(iv) timber verandas.55
(iv) Middenbury will continue to occupy its elevated location on
the site;56
(v) Middenbury will have a setting that involves a generous space
(greater than that protected by the boundary of the State listing)
for entertaining and enjoying the views to the Brisbane River
and CBD;
(vi) Middenbury will be a house with picturesque qualities that
stands out from the modern buildings that surround it (and are
proposed to surround it) when viewed from the river and the
opposite bank at West End;
(vii) the two large fig trees will be retained as a landmark feature
along Coronation Drive that make a significant contribution to
the streetscape, and
48 T4-34 ll 42-43.
49 T4-35 ll 1-3.
50 T4-35 ll 5.
51 T4-35 ll 41-43.
52 T4-36 ll 12.
53 T4-36 ll 14.
54 T4-36 ll 16.
55 T4-36 ll 22-27.
56 T4-34 ll 45-46.
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(viii) the proposed use of Middenbury will allow the general public
to experience Middenbury as a useable building suitably re-
purposed.
[134] The proposed development does involve the demolition of the rear timber service
wing, but Mr McDonald (the heritage expert called by the appellant) conceded that
there was no unacceptable reduction of cultural heritage significance of Middenbury
as a consequence of that change.57
(iv) Areas of Contention
[135] Notwithstanding the above, Mr McDonald was opposed to the proposed development
for the following 5 reasons:
(a) the significant fabric of Middenbury is likely to be damaged by the
proposal;
(b) the significant fig trees are likely to be damaged and their future
survival threatened;
(c) the proposed towers will not provide an adequate and appropriate
setting for Middenbury;
(d) views between Middenbury and the Brisbane River and West End and
between Middenbury and Coronation Drive will be impaired by the
proposal, and
(e) the proposed rear addition to Middenbury is an unsympathetic and
inappropriate form of development that will detract from the
appearance and expression of Middenbury as an 1860s villa residence.
(v) Witnesses and their credit/experience
[136] In considering the heritage issues, the court had the benefit of the evidence of three
heritage experts namely Mr McDonald, Mr Elliott (called by the co-respondent) and
Mr Lynch (called by the co-respondent by election). Each was accepted as an expert,
but there were challenges to the credibility of Mr McDonald and to the extent of Mr
Lynch’s experience.
57 T4-34 ll 45-46.
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[137] Mr Lynch is an architect with not insignificant experience in heritage matters and has
sufficient expertise to give opinion evidence. It was pointed out, for the appellant,
that he had never written a heritage impact report or an expert conservation
management plan and was neither familiar with, nor a member of, the International
Council of Monuments and Sites. He may not be as experienced as the other
witnesses, but it was not suggested he was not qualified to give opinions. Ultimately
it is the consideration of the cogency of the content of his evidence which is of greatest
importance.
[138] Mr McDonald was criticised on at least two bases. First was his less than entirely fair
visual representation of the presentation of the gap between two of the residential
towers which provides a view corridor to the river from Middenbury. The second was
his less than completely convincing explanation as to why he saw the proposed towers
as unduly impacting upon the cultural heritage significance of Middenbury, when he
was supportive of a recently approved tall building adjacent to Customs House in the
CBD. It is unnecessary for me to say more about either of those matters however. I
am not prepared to draw a conclusion that Mr McDonald was doing anything other
than expressing his honestly held views in relation to the subject matter. It is, again,
the cogency of those views upon which I have ultimately focused.
(vi) Damage to Middenbury
[139] It is proposed that Middenbury sit over a newly constructed 4 level basement carpark.
It was agreed, in the joint report of the heritage experts, that there is a risk of damage
to Middenbury’s significant building fabric in constructing that basement, but there
was disagreement about the magnitude of the risk. Mr Elliott, with whom Mr Lynch
agreed, expressed the opinion that the risk resulting from the proposed suspension of
Middenbury above the basement excavation and construction can be appropriately
mitigated through the preparation and execution of appropriate structural support and
dilapidation monitoring strategies. He pointed to the recent successful
implementation of such strategies on a masonry heritage building known as Collins
Place in South Brisbane. Mr Lynch gave evidence of his involvement in another
project where engineering techniques were used to preserve the façade of the building
at 333 Ann Street, which had been propped up and retained for approximately 15
years in anticipation of redevelopment. Mr McDonald however retained concerns,
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on the basis that Middenbury is a face brick building and, in his view, more prone to
cracking in a way which produces irreparable damage.
[140] In order to deal with those concerns, the co-respondent called a structural engineer,
Mr Simovic, whose firm was involved in the Collins Place project and has provided
a quote to suspend Middenbury to facilitate the proposed construction of the basement
carpark. His evidence was that the process utilised for the underpinning, supporting
and stabilisation of Collins Place:
(a) is not an untested development method in the construction industry;
(b) is well understood by structural engineers, and
(c) is able to be utilised in the development of the former ABC site to
ensure that the heritage building Middenbury is not damaged.
[141] Further, his evidence was that Middenbury can be successfully supported and
stabilised during construction of the proposed development to ensure it is not
damaged by construction activity either adjacent or below. While there may be a
number of possible options for construction of the basement building below
Middenbury, one of the options is using a methodology set out in his statement, which
he believes would be successful because:
(a) Middenbury’s construction is similar to that of Collins Place, with
both structures possessing brick walls and a lightweight veranda;
(b) Middenbury is a one-storey house, whereas Collins Place is a complex
two-and-a-half storey building;
(c) the construction methodology mitigates the risk of any damage to the
brick façade of Middenbury;
(d) the scope of works includes the restoration of any penetrations in the
brick façade which may be required to enable installation of temporary
structural steel elements, and
(e) the construction methodology can be modified to suit the differences
between the buildings and respond to the different specifications of
the sites, however the basic principles will still apply.
[142] He regarded the suspension of Middenbury as a less complex task than was the case
for Collins Place because Middenbury:
is lighter;
has a more simple rectangular shape;
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53
is only one storey, and
will have more room about it.
He does not consider that there are any unacceptable risks in the case of
Middenbury.58
[143] It was pointed out, in the course of cross-examination, that Middenbury has a slate
roof, rather than an iron roof as was the case at Collins Place. Mr Simovic fairly
conceded that involved a higher risk, but not one which unduly concerned him given
that, in the case of Collins Place, deformation of the supports of the building was
limited to 1mm to 2mm.59
[144] As to Middenbury having a face brick exterior, Mr Simovic explained that it is the
mortar that gives the brick wall its strength and that the rendered finish, as in Collins
Place, is more brittle and would show up cracks more readily. He did not consider
that this was an issue of concern.
[145] Mr Simovic acknowledged that the two chimneys at Middenbury would be brittle but
attested that, as was the case at Collins Place, they can be appropriately supported in
place by steel bracing.
[146] Mr Simovic has not yet investigated the footings of Middenbury, but that did not give
him any concern.
[147] The suspension of Middenbury would obviously involve some degree of risk but I am
satisfied, on the basis of Mr Simovic’s evidence, that the risk is manageable and
acceptable. The detail design of the process for suspending Middenbury is,
understandably, yet to be done, but I am satisfied that it is capable of being done.
Here, before any building work can occur, it will be necessary to obtain a building
permit, and the Chief Executive will be a concurrence agency for that application. As
part of that application process, it can be expected that detail design will be provided.
Mr Simovic confirmed that such a process was followed for Collins Place, with input
from heritage architects in the proposed construction process. Further, there could be
conditions of any approval of the subject application which ensure that an appropriate
plan for the works is formulated and executed.
58 T10-22.
59 T10-24.
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54
[148] It was also submitted, for the appellant, that the exercise of suspending Middenbury
during construction involves “butchering” the building in an unacceptable way. The
building will be interfered with to some extent in the process. Middenbury will be
lifted and placed on temporary piers for some months while its current footings are
removed and the soil below excavated and the basement levels constructed before it
is then placed on its new slab, in lieu of its existing footings. During the process, the
walls of the building will be left in place. The flooring will be removed so that trusses
can be inserted through the walls, to the extent that they extend below the level of the
floor. The flooring can then be reinstated. The temporary removal of verandas is an
option, but Mr Simovic’s evidence is that that is not necessary. There is nothing in
the citation which suggests that the heritage significance of Middenbury is related to
its footings. None of the work in order to temporarily suspend Middenbury amounts
to a “butchering” and would not, I am satisfied, significantly detract from the heritage
significance of Middenbury, particularly once the works are completed.
(vii) Damage to the Fig Trees
[149] It is common ground that the fig trees have significance and should be retained. There
is an existing retaining wall between the fig trees and Coronation Drive. The co-
respondent does not propose to remove the fig trees. The conditions of approval
require their retention. The concern raised about the trees results from what the co-
respondent contends is a tension between the conditions which require retention of
the trees and another condition, which requires land dedication to facilitate a possible
future road widening in Coronation Drive. An amended traffic and access plan, which
had been disclosed by the co-respondent, contemplated a change to the existing
retaining wall in a way which would reduce the setback to the trees.
[150] The appellants were permitted to tender a report from an arborist which expressed a
concern about the incursion of a new retaining wall within the root zone of the trees.
As was submitted for the other parties however, the risk is not one which arises
because of the subject proposal. Rather it is one which might arise depending upon
future decisions by the council as the road authority.
[151] The council has three competing priorities that may impact upon the location of any
retaining wall near the root base of the fig trees:
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55
(a) the first is a desire to preserve full-width separated pathways for
pedestrians and cyclists along the Coronation Drive frontage of the
site;
(b) the second is a desire to preserve the heritage listed fig trees, and
(c) the third priority is a long term desire to widen Coronation Drive
which impacts upon the available verge width to provide a segregated
pedestrian and cyclist path and, in turn, a location where retaining wall
supporting the root base of the fig trees.
[152] The council will ultimately decide how that balance is to be struck. The risk to the
trees is not a fait accompli. It only arises should the council elect, at some time in the
future, to add an extra through lane in Coronation Drive and to reconfigure the
pedestrian and cyclist path in a way that requires removal of the existing retaining
wall. Whether such a road widening will even be necessary will depend upon a
number of things, including what happens on the other side of Coronation Drive and
the wider traffic scheme that the council elects to adopt.
[153] No change to the retaining wall is required by the subject proposal. The council does
not submit that any change to the retaining wall is necessary for traffic reasons. The
conditions of any approval ought not mandate or authorise such a change. Further,
the evidence demonstrates that it is possible to provide the dedication sought by
council conditions, retain the existing retaining wall proximate to the fig trees and
provide suitable pedestrian and cyclist paths.60
[154] In the circumstances, the potential future risk to the fig trees is not a sound basis for
refusing the subject application.
(viii) The Setting of Middenbury
[155] Mr McDonald’s view is that the proposed towers do not provide an adequate and
appropriate setting for Middenbury. In this context, he saw the site as currently
providing a generosity of space around the building, which he saw as an important
aspect of an 1860s suburban villa residence. It was submitted, for the appellant, that
the height, bulk and scale of the proposed development will overwhelm Middenbury
60 See evidence of Douglas.
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56
and reduce it to a minor and insubstantial element of the site, with consequent adverse
heritage impacts.
[156] There can be no doubt that the proposal will affect the setting within which
Middenbury sits on the subject land. The issue is whether that results in a significant
and unacceptable impact on the cultural heritage significance of Middenbury.
[157] There are a number of things which should be noted in relation to the setting of
Middenbury. First, the setting within which Middenbury sits on the subject site has
been an evolving one over the course of history. As has already been observed, prior
to the recent demolition of the ABC buildings, it had only been the principal building
on the site for some 17 years in its approximately 150 year history.
[158] Secondly, the context beyond the subject site in which Middenbury is set has evolved
and is rapidly changing, with substantial existing and likely future development.
[159] Thirdly, the heritage provisions of CP2014 could not sensibly be read or applied as if
directed to retaining the site or its surrounds to the way they were in the 19th century.
As the heritage experts agreed in their joint report, the current planning controls
facilitate tall buildings generally within the precinct. That includes on the subject
site, where buildings of at least up to 15 storeys can be expected. In that context, Mr
McDonald’s observations that “high-rise towers generally form no part of a historic
villa setting” and that conservation management plans done in 1984 and 2009
recommended only medium-rise (up to 5 storeys) buildings on the site, do not take
appropriate account of the contemporary planning context.
[160] The evolution in the physical setting and the planning context was, on the other hand,
acknowledged by Mr Elliott and Mr Lynch. Mr Elliott conceded that Middenbury no
longer looks like a 1860s villa on a hill on an estate with nothing about it, but pointed
out that “quite a lot of water [has] passed under the bridge” and its setting will be
different from what it was in 1860.61 He referred to a ‘natural tension’ between
heritage provisions and the development intentions of CP2014. In responding to the
contention that the new buildings will dominate and the cultural heritage significance
of Middenbury would thereby be overpowered, Mr Lynch said as follows:62
61 T3-69.
62 T3-95.
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57
“They’ll be dominant buildings from a distance. I – I really am quite
impressed, however, the way Middenbury has now been in this development
given its own standalone setting again. It’s given a – a – an extremely large
piece of the site. It looks to my eye to be – without measuring it, inaccurately
– somewhere around a-third of the site, with – with – with road curtilage and
pathways around it, so that – Middenbury could not expect, in my view, in
2016 to have prominence in terms of viewing to it from any great distance.
You’d have to get close, because it’s a single-storey building. But once you
do get close to it, it’s going to be extremely prominent”
“…I absolutely don’t see how – how they impact upon its cultural heritage.
They – they have some impact upon the appearance of its setting; and
obviously the setting is changed considerably by – by tall towers now
framing it. It will be framed with tall towers on the other side of Coronation
Drive, and – and as you’re seeing, up Archer Street there’ll also be code-
assessable 15-storey buildings which will also be around Middenbury. So I
think that is simply the reality of – of – of – of where Middenbury finds itself
in – in 2016. But even this view – if you were walking down the street, sure,
the big towers – you know, are going to attract your eye; but – but
Middenbury is given a – a very prominent position on that site.”
[161] There is no doubt that the proposed residential towers would constitute a very
prominent landmark, and be much taller than Middenbury, but it does not follow that
Middenbury will necessarily be overwhelmed in a way which negatively impacts
upon its heritage significance. The proposal is, as Mr Elliott and Mr Lynch
concluded, quite respectful of Middenbury.
[162] The proposal maintains Middenbury’s historical location and orientation and sets it
within a generous area of publicly accessible open space on an elevated part of the
site. The towers are both sensitively placed and have tapered bases. The result will,
as Mr Elliott said, be that Middenbury “remains a significant feature on the subject
site and a focal point of the proposed development within the publicly accessible
riverside recreation space”. Similarly, Mr Peabody described the proposal as
celebrating the retention of Middenbury, by surrounding it with open space.63 It will,
of course, be of a completely different scale from that of the residential towers but,
as Mr Elliott said, “the careful siting and tapered built form at the base of the proposed
towers will serve to visually highlight the retained heritage building within its original
riverside setting and frame views towards Middenbury both from the river and West
End”. Indeed, Middenbury will, as Mr Lynch said, have prominence restored and, as
63 Exhibit 6, para 5.3.3(i).
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Mr Elliott attested,64 it and the towers will both have prominence, but for different
reasons. Further, as Mr Chenoweth (the visual expert retained by the co-respondent)
attested65 the contrast of the towers draws attention to the relatively small charming
heritage building that is Middenbury. He said:
“…Your Honour, this is a subjective area but I think that if you – the
proposed extension and the sculptural forms of the building here to me don’t
compete with the heritage building. They’re quite different in terms of the
colour – the white versus the red – the roof form, the small scale of
everything with the Middenbury building including the chimneys and the
post-supported awnings. Everything about that building, to me, in this
context indicates it’s being treated respectfully. I use the word “a little gem.”
It’s being treated as if it’s something very important and it’s drawing
attention to it through the contrasting colours, contrasting in form and scale
but all – at the same time it gives plenty of space around it for people to see
it and appreciate it. Now, that’s the view from Archer Street. If one has a
look at the previous page – 107 – you can see there that in fact Middenbury
will be on a hill and you walk – as it is now – so it will have its own setting
on its own hill and the framing by the three towers will be set back from it.
But it will relate to it because it’ll have this cultural extension. There’s an
outdoor café like a skirt around it. So I think they – again, it’s a very elegant
solution how they’ve designed here to draw attention to the building and I
don’t think it’ll be subsumed at all.66
[163] As Mr Elliott attested,67 the proposed new buildings, being a landmark piece of
architecture by an internationally renowned architect, are quite different from
Middenbury, but both have merit and will each have particular points of interest and
each will be prominent for different reasons.68
[164] I prefer and accept the evidence of Mr Elliott and Mr Lynch that the proposal would
not impact upon the setting of Middenbury in any way which has a significant undue
impact upon its heritage significance.
(ix) Views to and from Middenbury
[165] Mr McDonald expressed the opinion that views between Middenbury and the
Brisbane River and West End and between Middenbury and Coronation Drive will
be unacceptably impaired by the proposal.
64 T3-65.
65 T2-14, 16, 21.
66 T2-21.
67 T3-61.
68 T3-65.
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59
[166] So far as views to and from the Brisbane River and West End are concerned, the
proposed development provides a viewing corridor to the river and West End which
is wider than that required by the State Heritage listing and also provides an additional
corridor for views north to the CBD. It should be noted that figure b of the TANP
also showed one significant view corridor generally from Middenbury to the river and
that OO(r) sought the retention of that.69 The precise location of the corridor and its
width cannot be discerned from the TANP, but the corridor to be provided by the co-
respondent, I am satisfied, is sufficient and that the OO is met.
[167] Mr McDonald’s evidence focused upon inclusion of the whole of the subject site
within the heritage overlay in CP2014 and on his view that “both historically and
currently, the site allows expansive views to and from the Brisbane River which
Towers A & B of the proposal will not retain but will substantially restrict”.
[168] There is nothing in the statement of significance in the heritage citation which
requires provision or retention of expansive views to and from the Brisbane River.
The citation does refer to the setting of Middenbury on the Brisbane River and to the
fact that the timber verandas accessed by French doors provide a generous space for,
amongst other things, enjoying views to the Brisbane River and CBD, but that is not
to say that the heritage significance of Middenbury requires unrestricted panoramic
views.
[169] Insofar as what could be seen from Middenbury, Mr McDonald placed considerable
emphasis on a 1933 photograph which he later acknowledged was not illustrative of
the views that were available from Middenbury.70 Further, his analysis ignored the
significant quantity of vegetation that historically existed between Middenbury and
the river.71 As a consequence, even in the years prior to the ABC buildings, the view
of the river from Middenbury would not have been an unrestricted panoramic view.
[170] Insofar as views to and from Middenbury generally are concerned, Mr McDonald
considered that Middenbury has recently “retrieved its lost visual prominence”. He
tended to dismiss the former ABC buildings on the site as a “relatively small piece of
a continuum of history”. As earlier noted however, there was only ever a short period
of time during which Middenbury was the principal building on the site. Within 17
69 See also AO1.6.
70 T4-43,44
71 T2-23 (Chenoweth).
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60
years of it being built, Sidney House was built on the site. Sidney House remained
on the site for 76 years, at which time it was demolished to make way for the new
ABC buildings, which remained on the site for 51 years. Further, as has already been
noted, the evident intent of CP2014, of which the heritage overlay forms part, is for
the subject site to be the subject of significant development as part of a major centre.
The retention of Middenbury’s cultural heritage significance is intended to be
achieved in the context of that further development of the site. In such circumstances,
it is unsurprising that there would be some interruption of views to and from
Middenbury compared to a hypothetical situation in which Middenbury remained as
the only building on the site. Further, it is unsurprising that there would be some
interruption of view, as between Middenbury and the river, compared to that notional
scenario, given that Middenbury is located on an elevated part of the site which is
removed from the Brisbane River’s edge and closer to Coronation Drive.
[171] I am satisfied that the proposed development appropriately respects and preserves
views to and from Middenbury. It both complies with the view corridor requirements
of the state listing and utilises sensitive design and treatment, including the tapered
base of the towers. Further, as has been noted, the proposal retains Middenbury in its
current location on an elevated part of the site and places it within a generous publicly
accessible open space which will facilitate views to and from Coronation Drive.
Some issue was taken with the proposed extension of Middenbury as viewed from
Coronation Drive. That is discussed below.
[172] The overall result will be that Middenbury will retain a river location and setting and
continue to enjoy views of the Brisbane River and CBD. I am satisfied, consistently
with the evidence of Mr Elliott and Mr Lynch, that to the extent that the development
impacts upon views to and from Middenbury, it does not do so in a way which
significantly detracts from its cultural heritage significance.
(x) The Proposed Addition to Middenbury
[173] The proposed development involves the construction of an addition to the rear of
Middenbury. The addition is of a modern design, which is sympathetic to the modern
design of the proposed towers, and is unlike the form or architecture of Middenbury
otherwise. It is of substantial size. It would not obstruct views of Middenbury to/from
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61
the river, West End or the CBD, but would have some restricting effect on views
to/from Coronation Drive. Mr McDonald’s view is, in effect, that the extension is too
large and too modern and will unacceptably diminish the cultural heritage
significance of Middenbury.
[174] Article 22 of the Burra Charter 2013 provides guidance on how additions ought to be
approached so as to ensure they do not unacceptably diminish the cultural heritage
significance of a building. It states:
22.1 New work such as additions or other changes to the place may be acceptable
where it respects and does not distort or obscure the cultural significance of
the place, or detract from its interpretation and appreciation.
22.2 New work should be readily identifiable as such, but must respect and have
minimal impact upon the cultural significance of the place.
[175] As Mr McDonald acknowledged,72 notwithstanding its scale, the proposed extension
would be readily identifiable as an addition, lightly attached, and reversible. Further,
even with the addition in place one will still be able to appreciate those aspects of
Middenbury which give it significance as described in the statement of significance.
[176] I prefer and accept the evidence of Mr Elliott that the visual contrast between the
“old” and the “new” work does not diminish the cultural heritage significance of
Middenbury, but rather helps to draw attention to the considerable heritage and
aesthetic values of Middenbury and would be a “talking point” that will assist the
public in appreciating the evolution of the site.73 I am satisfied that the proposed
addition:
(a) does not distort or obscure the cultural significance of the place, or
detract from its interpretation and appreciation;
(b) is readily identifiable as such, and respects and has minimal impact
upon the cultural significance of the place, and
(c) does not substantially reduce the cultural heritage significance of the
heritage place as identified in the statement of significance, or
unacceptably reduce the ability for that significance to be appreciated.
72 T4-49, 50.
73 Exhibit 14, para 36.
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(xi) Compliance with the Heritage Provisions
[177] For the reasons discussed, I prefer the evidence of Mr Elliott and Mr Lynch to that of
Mr McDonald. Insofar as the various provisions relating to heritage are concerned, I
find as follows:
1. The proposal would achieve OO(3)(l) of the TANP because the heritage value
of Middenbury would be protected and enhanced, through retention,
refurbishment and re-use of the building.
2. The proposal is consistent with OO(3)(r) of the TANP by retaining a
significant view of vista identified in figure b from Middenbury.
3. The proposal is consistent with PO6(d) of the TANP in that it respects the
prominence of Middenbury.
4. As to PO11 and the corresponding acceptable solutions, the proposal:
(i) retains and reuses Middenbury and retains the heritage listed
trees on Coronation Drive (AO11(b));
(ii) retains a view from Middenbury to the river, as shown in
figure b (AO11(c)), and
(iii) reflects the local culture and heritage of Middenbury. Whilst
the new building and structure are of a different and modern
design, the development includes the refurbishment and
adaptive re-use of Middenbury. Further, the more modern
components of the development do not, for the reasons given,
detract from Middenbury’s cultural heritage significance.
5. The proposal achieves the purpose of the HOC that:
(i) development on or adjoining a heritage place does not detract
from the cultural heritage significance of a local heritage place,
and
(ii) re-use of a heritage place is compatible with its cultural
heritage significance.
6. The proposal is consistent with PO1, PO2, PO3 and PO4 of the HOC.
7. The proposal is consistent with PO1 of the QHPSC because it does not detract
or substantially reduce the cultural heritage significance of Middenbury.
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Traffic
(i) Introduction
[178] The site’s primary frontage is to Coronation Drive, a heavily trafficked arterial road.
To the north lies the signalised intersection of Coronation Drive and Booth Street. To
the south lies the unsignalised intersection with Archer Street (to which the subject
site also has a frontage). Further to the south lies a signalised intersection with High
Street.
[179] The proposal, insofar as concerns vehicular, cycle and pedestrian access, is as
follows:
(i) a single left in, left out vehicular access point for the subject
development to Coronation Drive;
(ii) a single access point for the subject development to Archer
Street;
(iii) works in Coronation Drive to construct a deceleration lane
leading to the proposed new site access;
(iv) further works on Coronation Drive to provide a dedicated
turning lane for vehicles travelling outbound on Coronation
Drive seeking to turn left into Archer Street;
(v) the construction of a public cycle way and pedestrian path
through the development site, linking between Archer Street
and Coronation Drive, and
(vi) the provision of onsite car parking.
[180] No issue was taken with the Archer Street vehicular access. Further, it was common
ground that:
the proposed improvements for vehicles decelerating to turn into Archer
Street would represent an improvement over the current situation,74 and
the section of cycle way/pedestrian path through the site is appropriate from
a traffic engineering perspective.75
74 T7-73.
75 T7-93.
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64
[181] The joint report of the traffic engineers featured criticisms of the original proposal by
both Mr Holland (who was retained by the appellant) and Mr Beard (who was retained
by the Council). Mr Douglas (the traffic engineer retained by the co-respondent)
thereafter produced an amended plan in order to address some of those issues.
[182] The remaining areas of dispute may be summarised as relating to:
(a) whether any vehicular access should be permitted from Coronation
Drive;
(b) if so, whether an acceptable access has been proposed, or could be
required by way of condition;
(c) issues relating to the bikeway/pedestrian path. In particular:
(i) the safety of the access points;
(ii) whether it cuts across the Council’s bikeway planning, and
(iii) whether it precludes plans for a cross river bikeway, and
(d) whether the internal design and layout of the carpark is satisfactory.
(ii) Vehicular access from Coronation Drive
[183] It was submitted for the appellant, consistently with the evidence of Mr Holland, that
the proposal’s reliance on vehicular access to Coronation Drive makes it
unacceptable. That was said to be so notwithstanding that AO11(h) of the TANP
contemplates vehicular access to the site from Coronation Drive. In this respect it
was submitted, for the appellant, that such contemplation should yield to the
provisions of the Road Hierarchy Overlay Code (“RHOC”). It has already been noted
that, pursuant to the hierarchy of assessment criteria under City Plan 2014, overlays
prevail over other components of the scheme (other than the Strategic Framework and
state-wide codes) to the extent of inconsistency.
[184] The only provision of the RHOC which forms part of the appellant’s central
provisions is overall outcome 2(b) which provides as follows:
“Development accessing roads is consistent with and does not
compromise the Road Hierarchy in its use, function, flow, or capacity
by buses, pedestrian and cyclists”.
[185] That provision does not contain a prohibition on access to an arterial road, but rather
focuses upon whether development would be inconsistent or would compromise the
things referred to.
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[186] The appellant’s outline of submissions placed reliance upon AO4 of the RHOC, even
though it is not one of the central provisions or issues. That acceptable outcome
provides that that development protects a planned infrastructure corridor identified
on an infrastructure corridor plan in accordance with the infrastructure design
Planning Scheme policy. That policy, in turn, specifies that direct lot access to an
arterial road is not permitted. AO4 is, however, only an acceptable solution. The
non-adoption of it does not amount to a conflict with the Code. The corresponding
performance outcome (which is also not formally in issue) is that the development
protects a planned infrastructure corridor on an infrastructure corridor plan. It is open
to the applicant to demonstrate that its development meets the performance outcome,
even if it does not do so in accordance with the policy referred to in the acceptable
outcome.
[187] The appellant’s central provisions include provisions of the Transport Access Parking
and Servicing Code (“TAPS Code”). The Neighbourhood Plan Code prevails over
that Code to the extent of any inconsistencies. The appellant relies upon OO(2)(e) of
the TAPS Code which provides as follows:
“Development provides site access arrangements to ensure that any
adverse impacts on other development, the transport network and
those who use it, are minimised to maintain amenity of the area and
the safety and efficiency of the transport system.”
That overall outcome does not contain any express prohibition upon access to arterial
roads.
[188] Similarly, the appellant’s central provisions include OO(5)(g) of the MCZC (which
also yields to the TANP to the extent of inconsistency) which provides:
“development provides vehicular access arrangements that minimize
impacts on surrounding land and protect the functionality of both local and
higher order road networks.”
That also does not contain any express prohibition on access to an arterial road.
[189] The appellant also relied upon PO1 of the TAPS Code which provides that:
“Development is designed:
(a) to include a technically competent and accurate response to the
transport and traffic elements of the development;
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(b) in accordance with the standards in the transport, access,
parking and servicing planning scheme policy;
(c) to ensure the efficient operation and safety of the development
and its surrounds.”
[190] The policy referred to in PO1 provides that if a site has more than one road frontage,
the major access should be from the minor road rather than the major road, although
that preference is subject to a number of qualifications including where traffic
generated by the development would compromise the amenity of the minor road and
where access cannot satisfactorily be taken from the minor road. It was submitted,
for the co-respondent, that it would be at least difficult for a service vehicle to access
the subject land via Archer Street because of topography and otherwise it would seem
both inefficient and inequitable to load all the traffic onto Archer Street in
circumstances where the TANP contemplated some access from Coronation Drive. It
may be noted that the appellant’s case otherwise raised an issue about the impact of
traffic noise on Archer Street (discussed later), which the access to Coronation Drive
serves to reduce. It was pointed out that the policy contemplates access from a major
road and provides that such access should be restricted to left in left out, which is
what is proposed here.
[191] Whilst there is some force in the co-respondent’s contentions in this regard, they fall
short of demonstrating no conflict. Further, the policy contains a table (Table 2.2.4B)
which, in terms, provides that direct lot access to an arterial road is precluded.
[192] There is some tension between those parts of the TAPS Code and the fact that the
TANP Code contemplates, via an acceptable solution, that there may be an access to
Coronation Drive. For the reasons which follow however, any conflict in this respect
is not accompanied by a significant adverse consequence and the relevant overall
outcomes are not prejudiced.
[193] As Mr Holland conceded, the proposed access to Coronation Drive would have no
adverse impact on public transport or the capacity of Coronation Drive.76 Leaving to
one side, for the moment, the form of the access itself (discussed later), the only safety
issue raised by Mr Holland with respect to an access to Coronation Drive related to
the potential for vehicles exiting the subject site to move from the left hand lane to
76 T7-88.
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the right hand land in order to execute a right hand turn at the intersection of
Coronation Drive and High Street. In particular, he was concerned that the right hand
turn flows freely and at speed in circumstances where the driver would move into the
path of a vehicle that may not be seen.
[194] Whilst Mr Holland’s concern is understandable, it must be acknowledged that the
very same manoeuvre already occurs where vehicles exit Archer Street and/or private
properties located to the south of Archer Street. There is no data to suggest that this
manoeuvre is currently causing significant safety issues.77 Access from the subject
development site represents a safer arrangement, because the manoeuvre would occur
significantly further away from the High Street intersection.
[195] It should also be noted that residents and visitors to the subject land would have also
had the opportunity to use the Archer Street egress and drive to the intersection at the
southern end of Glen Road and take a traffic signal controlled right hand turn onto
Benson Street before driving inbound and turning left to High Street instead.
[196] In the circumstances, I prefer the evidence of Mr Beard and Mr Douglas to the effect
that the issue raised by Mr Holland does not represent an undue risk.
[197] Mr Holland was also concerned that the efficiency of Coronation Drive would be
affected by vehicles slowing in the through lane heading south to access the
deceleration line. When pushed in cross-examination about this however, he stopped
short of expressing a view as to its significance.78 As was submitted for the co-
respondent, the reality is that motorists who utilise Coronation Drive at present,
travelling in a southerly direction, already need to make provision for, and
accommodate, vehicles slowing to enter Archer Street and private properties to the
south of Archer Street. The subject proposal represents an improvement to the
efficiency of Coronation Drive in that it will provide for two deceleration lanes clear
of through movements on Coronation Drive.
[198] To the extent that having an access point in Coronation Drive results in any conflict
with the planning scheme provisions, I am satisfied that it is a conflict which is not
accompanied by any significant adverse effect and would not prejudice the overall
outcomes of MCZC, RHOC or the TAPS Code.
77 Although some lay statements refer to some incidents.
78 T7-87.
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(iii) The form of the access
[199] The dispute among the traffic engineers about the form of the access centred upon
two issues: firstly, the length of the deceleration line and secondly, whether the access
should be in the form of a driveway or an intersection.
[200] Initially, the proposal showed a 27 metre deceleration lane. All traffic engineers
agreed that was too short. There was disagreement about whether an AUL (55
metres) or an AULS (40 metres) standard was appropriate. In AULS the “S” stands
for “short”. Implicit in the concept of an AULS is that 20 percent the deceleration
occurs in the through lane before a motorists enters the deceleration lane itself. A
deceleration lane of 55 metres permits “quite comfortable” braking.79
[201] The TAPS policy and City Plan 2014 are silent about the appropriate lengths of such
lanes, deferring to Austroads. Mr Douglas relied on the road planning and design
manual supplement which he thought overruled Austroads. The dispute about the
hierarchy of the documents (i.e. the conceptual justification for various length
deceleration lanes) assumed lesser importance than the opinions of the engineers
about the safety considerations that were site specific.
[202] Mr Holland contended that a 55 metre deceleration lane was required. He said that
anything shorter should not occur where there was, he thought, reduced visibility to
the turn treatment.80 Mr Holland’s 55 metre standard is one that cannot be achieved
given the fixed location of the Booth Street lights and heritage listed fig trees, neither
of which can be relocated. It is, in the circumstances, necessary to consider the
acceptability of a shorter deceleration lane.
[203] As to sight distances, there was some initial disagreement amongst traffic engineers
about what the sight distance was and where it was measured from. Mr Holland
however accepted that if an access driveway was relocated 12 metres further south,
he would be content in relation to sight distance.81
79 T6-69.
80 Exhibit 11, para 3.61 at p 6.
81 T7-77.
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[204] Further, Mr Holland’s concerns were based on the notion that traffic on Coronation
Drive, at the commencement of the deceleration lane, would be travelling at the speed
limit (60 km/hr). At the time of any significant turning movements however,
Coronation Drive is likely to be a low speed environment. Further, the lights at Booth
Street will themselves slow vehicle movements at peak hours (when the pedestrian
demand to cross Coronation Drive is likely to be high). In the circumstances, I prefer
the evidence of Mr Beard and Mr Douglas that a 55 metre site distance is not required.
[205] Mr Beard considered that a 40 metre deceleration lane would be acceptable, based on
his preferred layout. Mr Beard’s acceptance was dependent upon the deceleration
lane being measured from the start of the taper to the start of the turn – and no less.
His evidence was that if a vehicle was travelling at 50 km/hr (rather than 60 km/hr),
a 40 metre deceleration lane permits all of the deceleration to be complete within the
lane.82 His evidence, which I accept, was that the actual speed environment on
Coronation Drive meant that whilst there were occasions when vehicles would be
travelling 60 km/hr, speeds would be very low (and frequently stopped) during the
afternoon peak.83
[206] Ultimately, Mr Douglas did not differ greatly from Mr Beard in relation to
deceleration lane lengths. The deceleration lane proposed by him is slightly shorter
than that suggested by Mr Beard because of the different approach of the two
engineers to the design of the access. Mr Douglas could not accommodate the 40
metre deceleration lane because to do so would involve moving the intersection
proposed by him further to the south and therefore into the tree zone.84
[207] The debate between Mr Holland and Mr Beard on the one hand and Mr Douglas on
the other as to the appropriate form of the access related to matters of pedestrian and
cyclist safety. In short, there was a debate about which form of access would
minimise the potential for conflict between vehicles using the access and pedestrians
and cyclists proceeding along the bikeway in Coronation Drive.
[208] Mr Douglas proposes the site access to be constructed as an intersection, reinforced
by give way signs if necessary, so that pedestrians and cyclists yield to motorists
coming off Coronation Drive into the access. He pointed out that cyclists currently
82 T6-94.
83 T6-93.
84 T6-94.
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negotiate the intersection at Archer Street, which has a similar arrangement and
considered that a consistent approach would avoid confusion and achieve an
appropriate degree of safety. He pointed to a lack of evidence of any significant
difficulties at the Archer Street intersection85 and the fact that, with a cycleway
proposed through the site, the proportion of cyclists using the Coronation Drive
frontage to the site should reduce.
[209] Mr Beard and Mr Holland, on the other hand, considered that a (narrower) driveway
access should be preferred with the result that motorists would need to slow, negotiate
the physical geometry of the driveway and give way to any pedestrian or cyclist. They
did not consider that it would introduce confusion, since it is not uncommon for
private apartment developments to have driveway-style accesses and such accesses
are well understood. Indeed they saw potential confusion in reversing the priority
which would ordinarily apply at a driveway. As Mr Beard attested:86
“I’ve always tried really hard not to introduce confusion in this sort of
situation. So when you’ve got a traffic regulation that says that the
cars have to give way to the cyclists and pedestrians to enter and leave
private property, most people know that rule so when you try to
interfere with that rule I think that’s precisely when you create
confusion… I think the entry volume during the pm peek is more
likely 80 or 100 vehicles an hour. But 80, 100 vehicles per hour, you
want to be careful with it and I would be adopting the most cautious
approach which is to reinforce the natural priority; don’t try to reverse
it.”
[210] Mr Douglas was also concerned that, with an access driveway, service vehicles may
have difficulty turning into and out of the driveway at the same time (because of the
narrower configuration of an access driveway). As Mr Beard attested however, in
such circumstances the truck entering would only have to wait for a moment out in
the deceleration lane for the existing vehicle to depart. Cars could turn in and out of
the driveway simultaneously. Further, a vehicle pausing to turn left into the site on
Coronation Drive is most unlikely to cause queuing outside of the deceleration lane.
[211] The difference among the traffic engineers, in this respect, comes down to a matter
of traffic engineering judgement. Whilst the basis for Mr Douglas’ opinion is
understandable, ultimately I prefer the approach of Mr Holland and Mr Beard in this
respect. It seems to me that, consistently with their evidence, the safety of pedestrians
85 Although some of the lay witnesses spoke of some incidents.
86 T6-99.
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and cyclists is best protected by adopting a form of access which puts the onus upon
motorists to give way to the cyclists and pedestrians. Any approval should be subject
to a condition requiring Mr Beard’s preferred access, which also achieves a slightly
longer deceleration lane compared with Mr Douglas’ proposal.
(iv) Archer Street cycleway access
[212] It has already been noted that the TANP promotes the continuation of the Bicentennial
Bikeway through the subject site. Mr Holland had no difficulty with the form of that
cycleway within the subject site or with its connection point to Coronation Drive,
subject to the design being “tidied up” adjacent to the Booth Street traffic signals,
which, Mr Holland conceded, was something which could be conditioned.87 The
remaining area of contention focused upon the cycle access to Archer Street. The
proposal is for cyclists heading towards the subject site on the western side of Archer
Street to cross to the eastern side of Archer Street before it turns left at the “elbow”
and then to proceed to the cycleway on the subject site. Mr Holland’s concern is that,
rather than cross at that point, cyclists would instead cross at the point of the elbow,
which creates a danger because of sight distance.
[213] As Mr Beard and Mr Douglas pointed out, conditions could be imposed requiring the
treatment of the road at that elbow with a double centre line and rumble strips to
discourage crossing at that point. Mr Holland maintained a residual concern based
upon his view that cyclists would act in disregard of their own safety and attempt to
turn, at speed, over the double centre line and over the rumble strips and into a
driveway intended for vehicles, rather than use the marked bike path. He
acknowledged that he was not prepared to give cyclists “any credit for having any
road sense at all.”88 Whilst one should adopt a conservative approach when it comes
to safety, in my view Mr Holland’s approach was overly conservative in this regard.
The proposals suggested by Mr Beard and Mr Douglas adequately deal with the risk
and should be part of the conditions of any approval.
87 T7-92.
88 T7-69.
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[214] The appellant belatedly made some point about the fact that the proposal envisages
that a cycle path will be constructed within land to be dedicated on a neighbouring
site (20 Archer Street). The co-respondent owns the neighbouring site. Whilst that
site was not included in the subject application, it is not unlawful for the court to
impose a condition stating that the proposed development should not commence until
that cycle path has been dedicated and constructed. The appellant stopped short of
contending to the contrary. The co-respondent is willing to accept such a condition.89
(v) Council’s bikeway planning
[215] CP2014 includes a bicycle network overlay code. The acceptable solutions to that
code refer to a bicycle network overlay map. That map shows the existing bikeway
along the Coronation Drive frontage of the site as a “primary cycle route subcategory”
and also shows a “secondary cycle route subcategory” intended to be provided over
the subject site. The appellant suggested that the proposed cycle route provided
across the subject site would be inconsistent with that map because it would likely
become the primary cycle route.
[216] The reality is that cyclists will make a choice as to which route they wish to use. If
the majority of cyclists choose to cross the subject site rather than continue along
Coronation Drive, then they will do so because the new pathway is seen as being
more attractive, more efficient and perhaps safer. If that occurs the Council may well
choose to change the priorities in its bicycle network overlay map. In any event, the
map is referenced in the acceptable outcomes to PO1 of the bicycle network overlay
code. That performance outcome is that “development contributes to the safe and
efficient provision and operation of the bicycle network.” I am satisfied that the
proposal will do that even if its popularity results in it performing the role of a primary
cycle route.
(vi) The cross-river bikeway
[217] The bicycle network overlay map also shows a potential future primary cycle route
crossing the river and entering the site to join up with the primary and secondary cycle
89 Exhibit 21B.
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routes. The proposal does not make any express provision for that potential future
project. The other traffic engineers asked Mr Beard to enquire as to the intentions for
that project. His hearsay evidence was that there is no current intention to proceed
with the cross-river link. There is no evident progress towards it. In any event
however, Mr Beard’s evidence90 was that the proposed development does not
preclude provision of such a project should it ever proceed. Even the appellant’s
submissions state that “such an issue of itself may not be sufficient for the proposed
development to be refused.” In truth it has no significant merit. The submission that
the Council’s attitude in relation to this issue “again emphasises the win at all costs
attitude adopted by the BCC, to the detriment of the community at large” is unjustified
and unfortunate.
(vii) Carpark layout
[218] The appellant’s outline of submissions addressed PO15 of the TAPS Code, even
though it is not a central provision or a formal issue. PO15 of the TAPS Code provides
as follows:
“Development provides a carpark layout which allows for onsite
vehicle parking that:
(a) is clearly defined, safe and easily accessible;
(b) is designed to contain potential adverse impacts within the site;
(c) does not detract from the aesthetics or amenity of an area;
(d) discourages on street parking if parking has an adverse traffic
management, safety or amenity impact;
(e) is consistent with safe and convenient pedestrian cyclist movement.”
[219] The acceptable outcome references the standards in the Transport Access Parking and
Servicing Planning Scheme Policy (“TAPS Policy”). Whilst some point was made
about the need for design changes to the circulation system,91 the primary point was
that the residents’ car parking bays in the proposal, at 2.4m wide, are narrower than
the 2.6m width referred to in the policy.
[220] There are a number of things which should be noted about this issue.
90 T7-56.
91 Exhibit 11, para 3.87. This is a matter that can be left to the conditions stage.
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[221] First, it involves a departure from the acceptable solution. It is still open to the
applicant to demonstrate compliance otherwise with the performance outcome.
[222] Secondly, it is an issue of convenience rather than safety.
[223] Thirdly, it relates only to the residents’ car parking bays. The visitors’ spaces are to
be provided at 2.6m in width.
[224] Fourthly, neither the performance outcome nor the acceptable outcome feature in the
central provisions upon which the appellant relies.
[225] Fifthly, in terms of convenience, there is a balance to be struck, in terms of
convenience, between the width of the spaces and the number of spaces provided. In
this case, whilst the width of the spaces is narrower, the proposal is to provide well
in excess of the number of carparks which will be required. That is an understandable
approach in an environment where on street parking is obviously quite limited.
[226] Sixthly, even Mr Beard, who would prefer the 2.6m wide spaces, accepted that there
was a balance to be struck, and did not contend that the co-respondent’s proposal was
unacceptable.
[227] Seventhly, even if wider carparks were required, Mr Beard’s evidence was that that
could be done simply by slightly reducing the available number of carparks provided,
given the substantial excess. Alternatively, the basement could be required to be
made larger to accommodate the increased width with the same number of carparks.
Ultimately then, it is a question which goes to conditions rather than approval/refusal.
[228] On balance, I consider that, given the paucity of on-street parking, the proposal of the
developer to provide a greater number of carparks than is required by the policy is of
greater benefit than requiring 2.6m wide parking widths.
(viii) Conclusion on traffic
[229] There are no traffic issues which, in my view, call for refusal of the development
application. To the extent that there is any conflict with provisions of CP2014, they
are not accompanied by any undue consequences and their gravity is overcome by the
merits of the proposal.
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Amenity
(i) The appellant’s property
[230] PO1(d) of the TANP Code refers to development which “is designed to avoid a
significant and undue adverse amenity impact avoid affecting to adjoining
development”. OO(5)(j) of the MCZC is that development is sensitively designed and
operated to avoid or mitigate any potential adverse impacts on an adjoining use. Other
provisions of CP2014 discussed in these reasons also relate to amenity.
[231] The appellant claims that the proposal would have an undue adverse effect on her
amenity. The appellant’s property is composed of six contiguous parcels of land, five
of which enjoy direct river frontage. Five of the lots were purchased by the Bells in
May 2006 with a further (non-riverfront) adjoining lot purchased in May of 2013.
Although the land is included in the High Density Residential Zone and designated
for development up to 15 storeys, the appellant’s family has, instead, elected to
develop the land for their architecturally designed residence.
[232] The appellant’s house is a one storey dwelling featuring an open plan layout. It is
located towards the south western corner of the site, close to the adjoining boundary
with the subject site. It is orientated north and east taking advantage, as one would
expect, of the river and city views. It is also oriented towards generous recreational
areas which feature grassed open space, a tennis court, a pool and a further building.
Accordingly, the house, although proximate to the boundary of the subject site to the
south, effectively turns its back on that site and orientates itself in other directions
over the recreation areas. Further, the back of the house, proximate to the boundary
with the subject site, has been dug in to its site and backs onto a retaining wall. The
house is therefore at a lower elevation than the subject site. There is no current visual
connection to speak of between those in the appellant’s house and the subject site.
[233] The appellant’s claim that one of the key factors which weighed heavily in favour of
purchasing the property was its high level of privacy and her claim that she has a
concern about overlooking from the subject site must be placed in context in relation
to the situation of the site and reasonable expectations concerning future
development.
[234] Although the appellant described the site of her family residence as a “hidden oasis”,
the reality is that it has a high level of exposure to the east, including to the Brisbane
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River (which is obviously a key contributor to the appellant’s high level of amenity).
As the appellant conceded in cross-examination, her property can readily be seen by
those travelling on the CityCat service for example, although she took some comfort
from the fact that they were “fleeting” views.92 Further, reasonable expectations
would include that the subject site (which the Bells unsuccessfully sought to purchase
before it was acquired by the co-respondent), would likely be redeveloped in the
future for substantial development including development with the potential to
overlook the appellant’s property. The reasonable expectation, consistent with
CP2014, is that such development could involve development up to 15 storeys in
height and possibly higher (subject to impact assessment). Further, any development
of any significant height on the subject site would be expected to take advantage, as
the appellants have done, of the river and city views. The sweep of such views from
the subject site extends over the appellant’s property.
[235] That is not to say that development of the subject site should be insensitive to privacy
for its neighbour. The appellant’s central provisions include PO58 of the CMUC,
which provides that:
“Development minimises direct overlooking between buildings and to
adjoining residential uses not located within the centre or mixed use area
through site planning, building design, screening and landscaping.”
[236] The fact that the proposed buildings are taller than would reasonably be expected does
not necessarily mean that there are a greater number of units which would look out
across the appellant’s property than could potentially be achieved by a 15 storey
development. That would depend upon the design and orientation of the particular
proposal.
[237] The towers on the subject site are not orientated exclusively in one direction. The
towers express themselves in all directions, with the consequence that there are units
on each floor which are not orientated towards the appellant’s property. The units in
the proposed towers are well above the roof level of the appellant’s house and those
from which occupants could possibly be overlooking, offer attractive views to the
river and city.
92 T10-58.
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77
[238] To overlook the appellant’s property, it would require a resident of one of those units
with the potential to overlook the appellant’s property to choose to lean over their
balcony and look down on the appellant’s property, rather than out over it, to the river,
city or other places. It is possible that a resident may do that from time to time,
although they could also do so from a 15 storey building.
[239] As Mr Chenoweth93 and Mr Peabody pointed out, contrary to the fears of the
appellant,94 residents of the higher floors are less likely to look directly down upon
the appellant’s property than residents of lower floors. As Mr Peabody said:95
“Whilst I acknowledge that there is an opportunity from any room or
balcony in a building to have a potential to view into an adjoining
property, it is my opinion that the potential for more invasive
overlooking is greater at the lower levels of the building where an
individual is in close proximity to the adjoining property and the
foreground is within their general cone of vision. At higher levels of
the building, it is my opinion that there is a tendency to look out
towards the horizon and borrowed landscape, which is within an
individual’s general cone of vision, rather than look downwards.”
[240] There are a number of matters of relevance to privacy at the lower levels of the
development. Reference has already been made to the height differential between the
appellant’s house and the subject site. Further, the tapered nature of the base of the
towers means that the base of the towers is set further back from the appellant’s
property. There is also a significant height differential between the appellant’s house
and the first level of units in the towers. Further there is landscaping to be provided
to the common boundary and, depending on the noise protection option adopted,96
acoustic barriers to manage noise impacts which, if required for privacy, can be
opaque. There is no privacy issue with the villas.
[241] In the circumstances there is, as Mr Richards conceded,97 no potential for overlooking
from people in the proposed units into the appellant’s house. The only potential for
overlooking relates to those in the towers overlooking the recreation areas which, as
have been observed, could reasonably expect to be overlooked to some extent in any
event by development on the subject site. I do not consider that the extent of
overlooking from the subject proposal is undue having regard to reasonable
93 T2-52, 53.
94 T10-63.
95 Exhibit 6, para 6.1.27.4(f)
96 Discussed later.
97 T6-22.
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expectations and, with the features of the design including those which prevent
overlooking into the appellant’s house and overlooking from the lower levels of the
development, the proposal minimises direct overlooking. I am satisfied that PO58 of
the CMUC is satisfied.98
[242] Insofar as overshadowing is concerned, it would also be unreasonable to exclude from
reasonable expectations that development, as envisaged by CP2014, may cast some
shadow on at least part of the appellant’s property at some time. The evidence of Mr
McKerell and Mr Peabody was that the shadows which would be cast by the subject
proposal are acceptable. Mr Richards disagreed.
[243] Mr Richards prepared shadow diagrams to compare the shadows which would be cast
by the subject proposal for what he described as a “code compliant” alternative. His
alternative was not however fully code compliant, nor did it assume development to
the full extent of the acceptable outcomes.99
[244] Mr Richards’ scenario takes the footprints of the proposed Towers A and B and
pushes them closer together, so as to achieve a building separation of 24m to the
northern boundary, notwithstanding that, in doing so, he prejudices the viewing
corridor for Middenbury. By taking the building footprint of the subject proposal and
moving it so that it is entirely beyond the 24m separation distance, he has ignored the
“wedding cake” approach to the application of the separation distances and has not
had any regard to whether the particular levels directly face any habitable rooms. By
adopting the building footprint of the proposed towers, he has not considered towers
to the full width of 40m provided for in AO1.3 (which could cast wider shadows than
the subject towers). In addition, he has not adopted a tower-above-podium approach,
for which he otherwise advocates and which, consistently with the TANP, could see
a 4 storey podium located closer to the appellant’s property.100 Even putting those
matters to one side however, I accept Mr Peabody’s evidence to the effect that the
comparison which Mr Richards made does not warrant a conclusion of unacceptable
overshadowing.
[245] On 23 June at 9.00am the proposal would not cast any shadow on the appellant’s
property. At 3.00pm, as Mr Richards conceded, Towers A & B would have no impact
98 T10-17, 58 (Perkins).
99 T6-17.
100 See exhibit 6, p 138.
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upon the appellant’s property whilst Tower C would have only a minimal impact over
and above his comparison.101
[246] As for 23 December, Mr Richards did not suggest that the proposal would have any
undue impact prior to 2.00pm in the afternoon. Thereafter, Tower C, which complies
with boundary setbacks, would cast a greater shadow than if it were pushed back so
as to achieve a 24m building separation from the appellant’s house. The effect would
be to extend the shadow onto a part of their generous private recreation area which
would otherwise not be in shadow.
[247] Moreover, the analysis shows that even if Mr Richard’s comparison were accepted,
there is, in effect, no difference in the winter months, whilst the difference in the
summer months is limited to some additional overshadowing to a part of the otherwise
generous recreation space in the later part of the afternoon by reason of one of the
towers only. In the course of cross-examination even Mr Richards was slow to
express the view that that was unacceptable.102 I am satisfied that it is not. I am
satisfied that the proposal will not have an unacceptable impact of overshadowing,
having regard also to the conservative nature of Mr Richard’s comparison.
[248] The proposal will, in terms of its height, bulk and scale, dominate the Bell residence,
but that would be the case with any potential high-rise development up to 15 storeys
on the subject site. Because their single storey home is on land within the high-density
residential zone and adjoining land in a major centre, the appellants should reasonably
expect that nearby development, including on the subject site, will be of a much
greater height, scale and bulk than their own.
[249] Concern was initially raised in relation to acoustic impacts. As the first report of the
acoustic experts records, the subject site and surrounding uses are located in a highly
urbanised environment with existing noise from traffic, principally from Coronation
Drive, activities on the Brisbane River (including ferries, boats and other river related
activities) and overflying aircraft. The noise monitoring revealed that the locality,
including the subject site and the Bell property, is highly noise-affected by traffic on
Coronation Drive.103 The joint expert report of the acoustic engineers records their
agreement that the proposed development will not result in unacceptable acoustic
101 T6-19.
102 T6-20,21
103 T8-58.
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impacts at the appellant’s property subject to the imposition of appropriate conditions,
which include shielding the appellant’s property from potential groups of people in
the eastern open space areas by either:
construction of a 3m high acoustic barrier above the finished ground level of
the open space area between the outdoor use area and the appellant’s property;
or
using that area for landscaping purposes only rather than as an area available
for public use.
[250] It was submitted, for the appellant, that the Bells would suffer from a loss of perceived
amenity because, for example, of the fear of being overlooked. Perceptions of
amenity are of relevance,104 but are not necessarily given determinative weight.105
They do not require rejection of a development simply because an existing resident
is implacably opposed to it or harbours a fear of a particular amenity impact. In this
case, the nature of the component of the development which is of concern (high-rise
residential dwelling units) is of a kind which could reasonably be expected and the
specific amenity impacts relating to its height and form (including as to privacy) have
been the subject of assessment and, in my view, are not unreasonable. Visual amenity
and character issues are considered later and I am satisfied that the proposal would
also not have an undue impact in that regard. I would not be minded to refuse the
development on the basis of the appellant’s perception that her amenity will be unduly
affected.
[251] I am satisfied that the proposal would have no undue impact upon the amenity of the
appellant’s property.
(ii) 20 Archer Street
[252] Mr Richards did not express any concern about overshadowing for the approved
development at 20 Archer Street. Tower A, which is closest to the approved
development at 20 Archer Street, is set back further from the river and does not
prevent future residents of that development from enjoying river views. It has already
been observed that the tapered base of the towers means that the lower sections are
set further back from 20 Archer Street and that there will be no units in the subject
development facing the units in the lower levels of 20 Archer Street. It has already
104 Broad v Brisbane City Council & anor [1986] 2 Qd R 317.
105 Ibid 325 (de Jersey J).
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been noted that the design of the towers is such that not all units on each floor
orientated towards any direction. Direct overlooking opportunities will be limited to
some units on a small number of floors well below the 9th storey.106 The proposal’s
impact upon 20 Archer Street has been minimised. I note that the co-respondent owns
the site of that approved development and future residents would, of course, purchase
in the knowledge of the subject proposal. I am satisfied that the proposal would have
no undue impact upon the amenity of 20 Archer Street.
(iii) Traffic noise
[253] The only unresolved issue at the time of the joint expert report on acoustics was the
impact of additional traffic noise in Archer Street and Glen Road. That was due to
uncertainty about traffic volumes.
[254] For the purpose of the hearing, Ms Richardson prepared a report in which she
concluded that the traffic noise levels generated on Archer Street and Glen Road by
reason of the subject development would be less than by the previous longstanding
use of the site by the ABC. That remained the case, notwithstanding an upward
revision of the numbers at trial. The appellant challenged the relevance of
comparisons with levels associated with a use that has long ceased and I have not put
weight on that.
[255] Ms Richardson was cross-examined about whether appropriate noise criteria would
be exceeded if Mr Beard’s projection of 2000-3000 vehicle trips per day generated
by the proposal were to be realised. She acknowledged that the “base criteria” level
for the L10 would be exceeded in Archer Street if more than 2000 vehicles per day
used Archer Street, but not if the trips were distributed between Coronation Drive and
Archer Street,107 as would be likely in the subject proposal, with its 2 access points.
[256] Further, the concern for the amenity of Archer Street should be seen in the context of
the traffic noise-affected nature of the locality and the inevitability of increases in
traffic on Archer Street and Glen Road having regard to development which is
occurring, and is likely to occur, in the area consistently with the planning provisions.
It may be noted that the appellant’s case, whilst attempting to make something of
106 Screening conditions could be incorporated if thought appropriate.
107 T8-60.
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traffic noise in Archer Street also contends, for traffic reasons, that there should be
no access to Coronation Drive.
[257] Ultimately, even the appellant’s written submissions acknowledged that “acoustic
issues may not amount to a reason to refuse the proposed development of itself”. I am
satisfied that there is unlikely to be any undue impact.
(iv) Wind
[258] The appellant’s central provisions include PO16 of the MDC which provides as
follows:
“Development of a building 8 storeys and over ensures that the design
mitigates the impacts of ground-level wind acceleration on pedestrians and
building occupants”
[259] There is no specified acceptable outcome for buildings of more than 15 storeys in
height. A note calls for a wind impact report by a suitably qualified professional.
[260] This issue was considered by Mr King (for the appellant) and Dr Johnson (for the co-
respondent). They agreed that:
(a) the development application material submitted by the co-respondent
contained no specific study or assessment with respect to wind
amenity matters; and
(b) wind amenity matters are an impact that should be assessed by a
preparation of an appropriate report to address the requirements of
CP2014.
[261] There was disagreement as to whether that should occur before any approval of the
subject application has been given, or in the performance of conditions of any
approval. Mr King contended for the former, in case measures need to be
implemented to deal with wind also affected the assessment of the proposal from
another perspective. Dr Johnson contended for the latter.
[262] The experts agreed that wind will be able to be addressed. In that regard they said:
“The experts further agree that it is likely that the development can achieve
acceptable outcomes with respect to ground level amenity both on and off
the site on the basis of implementation of engineering measures such as
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awnings and/or built form or similar physical measures which can include
dense vegetated areas forming part of the design and construction of the
development.”
[263] Dr Johnson pointed out various features of the development, particularly the
“roughness” of the buildings, their symmetry and narrowness relative to height which,
in his view, means that it is more likely than not that there will be no need for any
measures. He did not, however suggest that a detailed assessment is unnecessary nor
did he exclude the possibility of some measure being required. He considered it better
to delay such a report for the following reasons: 108
“So while I undoubtedly agree with Mr King that a wind assessment is
necessary on the site, in my opinion it is not necessary to carry out that until
there is quite a degree of certainty about the development proceeding. A wind
analysis exercise is a reasonably complicated and expensive process. One
would want to carry that out on the basis of using the final design of the
building so that appropriate measures could be put in place if necessary. The
other element that’s affected in that regard is that there’s quite a degree of
other development occurring within the vicinity of this particular site. So it
would be sensible for a wind analysis to take account of the most up to date
information available in terms of potential impacts on wind. In that regard I
see no reason why you would carry out an analysis at an earlier stage of the
design process. It would be better left until, in fact, perhaps, approval had
been granted for the development through this process.”
There is merit, from a practical perspective, in Dr Johnson’s view.
[264] Although one cannot now know with certainty whether any measures would be
required and if so precisely what they would be, Dr Johnson gave evidence that the
measures which would be required are all, in the present context, “low intensity”
relatively minor items to be constructed in and around the buildings by way of
additions, without affecting the design of the buildings themselves. He spoke of
awnings, walls and vegetation.
[265] In the circumstances it would appear that not only can PO16 be satisfied, but that it
is likely to be able to be satisfied consistently with development which is generally
in accordance with the plans before the court. That provides a basis for the approach
contended by the co-respondent, of imposing a condition to require the assessment to
be carried out at the detailed design stage, prior to the issue of a building approval.109
The better course in my view however, is, if I am otherwise minded to dismiss the
108 T10-45 ll 33-44.
109 SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24 [24].
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appeal and approve the development application, to indicate that the assessment
should be carried out at this time, before a final order is made,110 to determine the
specific measures (if any) which would be required to be incorporated by conditions.
(v) Lay witnesses
[266] The 10 lay witness statements raise a number of issues primarily related to potential
amenity impacts and whether such impacts are acceptable. The submitters have
properties which are variously within the Major Centre, High Density Residential
Zone or Medium Density Residential Zone.
[267] It was submitted, for the co-respondent that:
While the lay statements undoubtedly reflect the honestly held views of the
persons who wrote them, the statements:
(a) highlight the inherently subjective nature of a number of the matters
raised in the statements;
(b) are at odds with the planning intentions for the locality, and
(c) tend to ignore the reality that (whether that is good or bad) the
residential amenity, and the character of Toowong is changing, and
will continue to change, in a direct response to the recent planning
scheme provisions guiding development in the area.
[268] There are some examples of that and some respects in which the views expressed do
not find support in the expert evidence. In other respects however, the statements
reflect concerns of relevance to the issues in dispute including with respect to height,
scale, bulk, character and the like.
[269] To the extent that the statements raise matters of relevance, those issues have been
examined elsewhere herein. The statements do not cause me to conclude that there
are any other particular properties which are subject to undue amenity impacts not
otherwise considered.
110 Cf Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333 [15] [100]
[105].
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Economic and community need
[270] In considering the level of economic and community need for the proposal, the court
had the benefit of evidence from three economists, Mr Brown (who was engaged by
the appellant), Mr Shimmin (who was engaged by the Council) and Mr Dimasi (who
was engaged by the co-respondent).
[271] As Mr Dimasi pointed out, there is a considerable economic and community need for
the subject site to be developed and a significant economic and community disbenefit
from the past, and any significant future, delay in realising the site’s development
potential. He referred to this as an opportunity cost.
[272] The subject site has been vacant for a decade, having been vacated by the ABC in
2006. It has since stayed effectively derelict notwithstanding that it is, under the
current planning provisions, within the centre and both a landmark site and a catalyst
site. There is, I accept, a substantial economic and community disbenefit in the site
remaining in its current state.
[273] Further, I accept Mr Dimasi’s point that it would be economically inefficient and
would impose an economic and community disbenefit if efficient development were
to be refused with the consequence of the site remaining vacant until what some might
regard as a “perfect” development can be achieved, whatever that might be. That,
however, cannot be taken too far. It would be the antithesis of proper planning to
allow the “opportunity cost” argument to justify permitting any form of development
whatsoever, no matter how unacceptable otherwise, simply in order to get something
developed promptly on the site. In this case however, the proposal would not only
facilitate the meaningful development of the site, but would do so in a way which
addresses economic and community need.
[274] Need is, as Mr Shimmin and Mr Dimasi pointed out, a broad concept, and extends
beyond simply the current market for residential apartments. It connotes the idea that
the wellbeing of the community or some part of it can be better or more conveniently
served by providing the means for ensuring the provision of the proposed facility.111
What constitutes a need will vary from case to case.
111 Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245, 250.
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[275] The proposal would result in excess of a thousand residents on a site on the doorstep
of the major centre. That would have flow-on benefits for the Toowong major centre,
particularly in terms of increasing the population of its catchment, and the level of its
activity and vibrancy. Indeed it was a matter of agreement amongst the economists
that the high density residential components of an activity centre are important
ingredients in achieving vitality insofar as promoting and aiding an 18 hour centre
economy and experience.
[276] The proposal would also deliver a significant area of public open space and enable
the public freely to access the river as part of the Toowong major centre. Further, it
proposes, within that area, a high quality public realm, bike paths and walkways, the
retained, rejuvenated and repurposed Middenbury, a café/restaurant associated with
that and a café nearer the riverfront. That, together with the additional residents on
the subject site, will serve to activate this part of the Toowong centre and improve the
wellbeing of the community. As Mr Shimmin and Mr Dimasi concluded in the Joint
Report:112
“…a need exists if the wellbeing of the community is enhanced,
including subsectors of the community at large. In this instance,
consideration of the extent to which the wellbeing of the community
is enhanced goes beyond the nature of the housing proposed and the
development itself, and would include the community benefits
associated with the form of development on the subject land (e.g.
public realm and access to the river, bike paths etc.), its linkages and
synergies with the major centre zone as a whole (i.e. highly
complementary), and flow on benefits in terms of viability of service
provision (e.g. public transport usage), and the vitality of the centre
which it would be part of (i.e. adding vitality to the centre and its
prospects as an 18 hour economy).”
[277] Mr Brown expressed a concern that visitors might feel uncomfortable about using the
open space. The concern is discussed later and is unfounded.
[278] The planning scheme envisages more than a “stock standard” development for the
subject site. It seeks development which, amongst other things, achieves a city-wide
prominence and acts as a catalyst. The economic experts rightly agreed that the
subject site is strategically important, and that there is a community expectation that
a high-quality development with a high level of amenity, particularly public realm,
would be established on the site and that there is also an expectation that development
112 Para 4.143.
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should achieve architectural excellence and attain citywide prominence. The subject
development would, I am satisfied, achieve all of those things.
[279] The economic experts also agreed that, as a “catalyst site” the development should
lead to or facilitate the setting of new benchmarks for the Toowong centre and its
continued renewal and vitality. Mr Shimmin saw the proposal as having value in that
regard for the following reasons:
(i) it will highlight that the Toowong major centre is attracting
considerable investment;
(ii) it will highlight that the Toowong major centre is evolving
purposefully as a multifaceted activity centre;
(iii) it will signal that the endeavours of government and planners
to achieve urban consolidation, transport oriented
development (“TOD”), and an 18 hour economy and
experience, are being successfully realised;
(iv) it will represent modern, new and regenerative “lifting the bar”
in creating a new development benchmark in the Toowong
major centre, and indeed in inner Brisbane as well;
(v) it will provide a population base which will support further
employment uses of public transport service in the centre, and
(vi) it will provide a population base which will support current
commercial uses within the centre.
[280] Mr Brown pointed out that Toowong is otherwise attracting considerable investment,
is a multifaceted centre and that transport orientated development does not always
need to be residential centric. He left the issue of whether the development would
create a new development benchmark for others. I am well satisfied that the
development would “lift the bar” in terms of setting a quality-of-development
benchmark in the Toowong major centre. Whilst the observations of Mr Brown
otherwise in this respect have some validity, the subject proposal would serve
significantly to highlight the matters to which Mr Shimmin referred.
[281] Mr Brown’s concern in relation to need focused upon what he saw as an inadequate
demonstration of need for the extent of residential development proposed to be
provided on the subject site and the failure of the proposed development to
accommodate what he saw as the need for retail and commercial uses to be
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accommodated on the site, given a need, over time, for more such development set
against the limited development opportunities within the centre. Mr Dimasi and Mr
Shimmin, on the other hand, saw the site as particularly suited to residential
development, less so (or not at all) for development focused on non-residential uses
and considered that the need for more retail and commercial floor space is relatively
modest and can be accommodated otherwise.
[282] The site is obviously attractive for residential development. The economists agreed
that key attributes of the site for residential development are that it:
is located within the Toowong major centre zone;
is located adjacent to the Brisbane River and on the “northern”
side;
is situated adjacent to the major public and active transport
corridor, including rail, ferry and bus and the bicentennial
bikeway, and
has a sufficiently large site to provide a high level of amenity.
[283] Mr Shimmin and Mr Dimasi saw a residential development on the subject site as
particularly desirable. Mr Brown did not cavil with the proposition that the subject
site is highly attractive for residential development, although he favoured greater
retail and commercial components.
[284] As earlier noted, dwelling units are a form of centre activity. It has already been
observed that the provisions of CP2014 would facilitate a substantial degree of
residential development (and indeed a development the vast majority of which is
residential) consistently with AO3 of the TANP Code.
[285] In assessing the need for the proposed residential component of the development on
the subject site, Mr Brown focused upon an assessment of supply and demand within
the Toowong SA2 area. He pointed to:
(i) expectations of a modest projected population increase over
the next 10-20 years;
(ii) what he considered to be a disproportionately large part of that
demand which would be taken up by the subject development;
(iii) recent declines in both the total value of unit sales and median
sale price of units in Toowong;
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89
(iv) relatively stable rents (indicating in his view an easing of
demands);
(v) an increase in vacancy rates, and
(vi) the extent of approvals and potential development otherwise
within the Toowong area.
[286] Mr Brown also pointed to concerns about the apartment market in the inner city area
of Brisbane in general. In short, his proposition was that there is a level of oversupply
in the high-density residential apartment market at present, both in the locality and
more broadly inner Brisbane.
[287] Mr Shimmin pointed out that population projections for areas as small as SA2 are
notoriously inaccurate for a range of reasons. Mr Dimasi and Mr Shimmin considered
that Mr Brown was too narrowly focused upon Toowong SA2. Further, they were
critical of Mr Brown in placing too much weight on short-term fluctuations in market
conditions and in giving too little weight to the particular advantages of the subject
development which would differentiate it in the market.
[288] As Mr Dimasi and Mr Shimmin pointed out, the question of need for the proposed
units within the subject site cannot effectively be addressed simply by pointing to
population forecasts and the number of high-density residential apartments which are
available or approved. Such analysis overlooks the relative scarcity of truly
comparable residential developments to the subject, which enjoys the advantages of:
a waterfront location;
adjacency to a major centre, with all forms of public transport
immediately available;
a large site with generous open space and a high-quality public
realm to be provided, and
forming part of an iconic architectural statement.
[289] Mr Shimmin reasonably described the proposal as being equivalent to the best high
density residential living environments in inner Brisbane and which would be
differentiated from the supply of high density residential apartments currently being
built or proposed throughout the inner west of Brisbane. He saw an undersupply, or
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potential undersupply, of truly comparable development not only in Toowong, but in
the inner west and Brisbane’s inner sector as a whole.113
[290] The combination of attributes which the subject development offers means that, as
Mr Shimmin and Mr Dimasi opined, the residential apartments to be offered on the
subject site will have very wide appeal to many segments and will draw from a broad
spectrum, including all parts of the Brisbane metropolitan area generally as well as
from interstate. Mr Dimasi and Mr Shimmin’s evidence is that there has proven to
be ready demand for projects elsewhere with some or all of the characteristics which
are offered in the proposed development. They consider that the subject proposal
would address a need for such development.
[291] Mr Brown considered that the existing and proposed developments in Toowong
already offer a range of choice, but I accept the evidence of Mr Shimmin and Mr
Dimasi to the effect that the combination of attributes offered by the subject site offers
something which is not truly comparable.
[292] Mr Shimmin and Mr Dimasi were criticised for relying on a qualitative assessment
which lacked a substantial quantitative basis upon which to draw a conclusion of
need. As Mr Shimmin opined however,114 the demand for the type of development
proposed tends to be somewhat supply-led.
[293] On balance, I prefer the opinions of Mr Dimasi and Mr Shimmin to that of Mr Brown
with respect to the need for the residential units proposed on the subject site, because
the former gave appropriate weight to the particular attributes of the subject
development.
[294] It was submitted for the appellant, on the basis of Mr Brown’s evidence, that approval
of the proposal would prejudice the need for the subject site to be used for retail and
commercial office space purposes. Mr Brown was concerned that there would be a
need for further development for such purposes in the future, that there is a limited
availability of centre zoned land, and that the subject site and the Woolworths site (in
the core of the centre) are the significant redevelopment sites within the centre.
113 Exhibit 10, paras 2.6, 2.6
114 Exhibit 10, para 1.148.
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[295] The level of need for the subject site to be given over to significant commercial office
space development is relatively weak notwithstanding that the Toowong Centre has
a relatively strong commercial office focus. Mr Brown looked at the employment
projections for Toowong SA2 which indicates that over the next 20 years there is
predicted to be an additional 1,734 workers in commercial office (or similar)
accommodation. Adopting an employment density of 1 worker per 15 m² floor space,
Mr Brown calculated the need for an additional 26,006 m² of floor space over 20
years. Whilst Mr Dimasi considered that the ratio of 1 worker per 12.5 m² would
have been more reasonable, he pointed out that even adopting Mr Brown’s rate, the
future office floor space demand, expressed as an annual average would only be
around 1,300 m². That does not mean that 1,300 m² of space would be developed
each and every year. As Mr Brown pointed out, the supply of space can be “lumpy”.
Mr Dimasi’s observations nevertheless point to a relatively modest incremental
growth in underlying demand.
[296] Further, that level of demand may be compared with the extent of existing vacant
floor space both in Toowong and at the much larger (in terms of commercial space)
centre at Milton. The smaller Toowong office market currently has a vacancy rate of
around 10 per cent, with more than 8,000 m2 of vacant floor space available. The
much larger Milton centre has a vacancy rate of about 20 per cent, yielding some
46,000 m2 of vacant floor space in relatively close proximity to Toowong.
[297] Mr Dimasi acknowledged that need for commercial office space (as with the need for
residential development) cannot be resolved based only on short term considerations,
but considered that the available information provides a “much deeper level of
understanding than simply short-term market conditions” and suggests that no
prudent owner or developer would risk investment capital on the provision of a
landmark office building in Toowong at any time in the foreseeable future.115
[298] Given the relatively small size of the Toowong office market, the magnitude of
incremental growth in demand and the extent of vacant space, I accept the opinion of
Mr Dimasi that the potential achievement of high, let alone premium, office rentals
(consistent with a landmark/catalyst development on the subject site) for a
115 Exhibit 10, p 99.
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commercial office orientated development on the site at any time in the foreseeable
future is a “dream”116 and that:117
“The provision of a landmark/catalyst development on the subject site,
focused around office uses, given all of these circumstances, is
therefore unrealistic, at best. No reasonable developer will be able to,
or could afford to, implement an office development on the subject
site and reasonably expect to achieve an acceptable level of return on
the investment, at any time in the foreseeable future.”
[299] None of that is to deny that there will be a requirement for additional commercial
office floor space in the future but, as Mr Shimmin pointed out, the commercial office
demand in Toowong is limited, can absorb vacant space over the next decade and can
be accommodated in new developments otherwise.
[300] I accept the opinions of Mr Shimmin and Mr Dimasi that the demand for office floor
space in Toowong is likely to increase only modestly in the foreseeable future, against
the background of a market which is already oversupplied, not just in Toowong but
also in the nearby and much larger Milton office precinct. Whilst development of the
subject site could potentially include some office component, the delivery of suitable
landmark/catalyst development on the subject site, which is focused on providing
substantial office floor space, is remote and highly unlikely for many years into the
future.
[301] Retail uses within the Toowong major centre are located west of Coronation Drive
and the railway line. In particular, they are located within Toowong Village and along
High Street and Sherwood Road. The retail floor space provision within the Toowong
major centre is little over 40,000 m2 with retail activities concentrated within
Toowong Village, which itself is anchored by the David Jones department store. By
comparison, the Indooroopilly major centre comprises in excess of 100,000 m2 of
retail floor space, anchored by two department stores located in the Indooroopilly
Shopping Centre.
[302] As Mr Dimasi pointed out, the main trade area for the Toowong centre is relatively
small, particularly in population terms because of:
the limitation of the trade area to the east by the Brisbane River, and to the west
by Mount Coot-tha;
116 Exhibit 10, para 5.93.
117 Exhibit 10, para 5.94.
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the existence, a relatively short distance to the south, of the large regional centre
at Indooroopilly, and
the existence, a short distance to the north-east, of the Brisbane CBD.
[303] Whilst the socio-demographic profile of the trade area population is conducive to
above average retail expenditure, even Mr Brown’s calculations suggest that there
may be a need for only an additional 15,546 m2 of retail floor space over the next 20
years at an average of 777 m2 per annum. That indicates a relatively modest demand
for additional retail floor space within the Toowong major centre.
[304] As Mr Dimasi and Mr Shimmin pointed out, even if an additional 15,546 m2 of retail
floor space is required over the next 20 years, that space can otherwise be
accommodated within the Toowong major centre. It should be noted, in this respect,
that the OOs for the Toowong centre precinct in the TANP Code include as follows
(emphasis added):
“(4)(d) Sherwood Road serves an active frontage – primary function
where the majority of retail, community and lifestyles uses are
located…
(4)(e) High Street is the focus for non-residential development,
accommodating a mixture of retail and commercial
development at ground level and providing a high quality
pedestrian experience.”
[305] Obvious candidates for the provision of further retail development include, as Mr
Shimmin pointed out, the Toowong Village centre. Mr Dimasi pointed out that it
recently underwent a refurbishment and upgrade but the owners did not see fit to add
substantial additional retail floor space at this time. The Woolworths site is another
obvious candidate. It is a catalyst site intended for a mixed-use development. There
are also a range of other smaller sites which could be redeveloped although, as Mr
Brown pointed out, the fragmentation of their titles creates some hurdles in that
regard.
[306] Moreover, the need for further retail floor space is modest and can be accommodated
by development in the core of the centre, west of the railway line, which is where the
focus for non-residential development, including the majority of retail development,
is intended to be located.
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94
[307] There was a dispute about the prospects of realising retail development on the subject
site and the desirability of doing so. Mr Dimasi and Mr Shimmin were influenced by
its location to the east of Coronation Drive and the railway line and so, physically
isolated from the core of the centre. As a consequence, Mr Dimasi considered that
speciality stores would be highly unlikely to prove successful on the site whilst
standalone big box anchor type uses (e.g. free standing supermarket) are very low
rent paying uses. In the circumstances Mr Dimasi considered that it would prove
extremely difficult to deliver an appropriate retail development on the subject site
which could both trade successfully in a development which serves as a
landmark/catalyst and also provides the appropriate level and quality of open space
and linkage to the Brisbane River that is required for the site.
[308] Mr Brown’s opinion was that, notwithstanding the site’s location to the east of
Coronation Drive, it may well be able to be developed successfully for some forms
of retail development. In particular, he thought that its riverside location would make
it conducive to retail uses that have a lifestyle focus or a range of specialty retail uses.
He considered that the separation from the remainder of the centre was not fatal and
pointed that there are centres which have sub-precincts fulfilling different roles and
functions.
[309] Mr Shimmin did not discount the prospect of riverside retail uses, especially food and
beverage outlets, and lifestyle uses in general, but considered that the more those uses
were provided on the subject site the more it would fragment the retail component of
the Toowong major centre. He considered that the inclusion of retail uses in the core
area of the centre, primarily along or adjacent to High Street, which would serve to
concentrate activity, enhance the vitality of High Street and facilitate an 18 hour
economy and experience is currently a higher priority.
[310] I accept that there will be a need for further retail development in the centre in the
future. I also accept that the subject site would be suitable for some retail uses and I
do not discount that a greater retail component could be workable on the subject site,
but it is unlikely that a large retail focused catalyst/landmark development would be
achieved on the subject site, at least in the short to medium term. There would be
public disbenefit in quarantining the subject site in the meantime in the hope that there
might be a build-up of demand, over the longer term, to excite such a proposal. The
retailing which could realistically occur on the subject site can be accommodated in
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the core of the centre and that would be beneficial to the vitality of the centre in a
retail sense, and the achievement of the objectives for High Street and Sherwood
Road.
[311] I am comfortably satisfied that there is an economic and community need for the
development as a whole, including the residential component. I am satisfied that the
need is significant and is not outweighed by any competing need for the site to
accommodate substantial retail and commercial development. I am satisfied that
refusing the subject development in the hope that a different proposal, with a much
more substantial retail and/or commercial focus being put forward, is likely to be to
the community disbenefit.
Architecture, design, visual amenity and character
(i) Architectural quality
[312] The proposal features architecture of the highest quality. The late Dame Zaha Hadid,
achieved much in her celebrated career. Her architectural practice is renowned for
sophisticated, dynamically articulated and sculptural architectural and urban space
solutions. Dame Zaha’s work, as Mr Richards explained, typically has a strong visual
style with, amongst other things, tapering forms and curving. Mr McKerrell rightly
described the architectural expression and design elements of the residential towers
as “exhibiting a high level of design skill and scholarship” and as demonstrating a
“very high quality of external architectural expression…”118 Mr Peabody rightly
described the design of the towers as “remarkably excellent” and testified119 that:
“in my opinion and I – with particularly the design of the towers, they are
multi-dimensional towers which I think in itself is fantastic. Now, what I
suggest by that is there really is no back end to all three towers. They will
be perceived, and rightly so, they are perceived from all various different
avenues and aspects from around the city and from the local environment
and they don’t necessarily have a back that has a core, you know, the normal
sort of blank wall of a lift or a stairwell or the like. So in that regard, they
address all aspects as a – and they orientate to all aspects. They – as has been
remarked, they are very sculptural in their form, incredibly unique and quite
visionary, in my mind, and yet are able to achieve, you know, the open
balconies which unfortunately seems to be overlooked on a number of tall
118 Exhibit 6, p 19.
119 T5-54.
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buildings in our city at the moment where balconies tend to be enclosed more
often than not at the moment which, I think, personally, is a bit of a shame
and goes totally against our subtropical design direction for our environment.
So the open balconies are embraced in the scheme; they’re incorporated into
the sculptural structural form that, you know, extends from - effectively,
when you perceive it, they extend from below ground and grow up and then
encapsulate the plant rim and again, as a tower, the fact that the building
envelope extends up and embraces and, you know, encapsulates the plant
rim on the top I think is a fantastic gesture to the completeness of the design
of the towers.”
[313] Mr McKerrell attested that:120
“My consideration of these buildings is that I believe them to be striking and
bold. I believe that they show a lot of scholarship, your Honour. I think that
she’s done a good job insofar as creating a new approach to apartment
building, and I think that we in Brisbane and Queensland would benefit from
that new contribution to the architectural scene, and it would be a pity to see
those buildings not built. It is different. It is a – as I mentioned, a fresh
approach to the form of an apartment – a high-rise apartment building.”
[314] The architectural design will not necessarily be to everybody’s personal taste, but it
is an example of exceedingly high quality architectural expression by an important
and acclaimed architect and will make a positive contribution in an architectural
sense.
[315] The appellant’s contention, consistently with the evidence of Mr Richards, is that the
proposal nevertheless fails to appropriately address its locational and planning
contexts. Mr Richards expressed the view that the proposal is more of a strong visual
representation of the design vocabulary and style of the architect than a considered
response to the context of the site.121
(ii) Landmark
[316] It has already been noted that the TANP designates the site as a landmark site and
that such sites are defined, in CP2010, as those “identified in a neighbourhood plan
to accommodate buildings or developments that attain citywide prominence through
a combination of notable architectural excellence, siting and location”.
[317] The TANP contains more specific provisions about landmark sites within the
neighbourhood plan area. PO6 provides as follows:
120 T5-44.
121 Exhibit 6, p 103.
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“PO6
Development on a landmark site provides a prominent visual reference
and contribution to the city’s public realm by:
(a) exhibiting sub-tropical architectural excellence through
design, treatment and articulation;
(b) defining the site and its setting through building form,
expression, silhouette, scale, materials and landscaping;
(c) reinforcing a sense of arrival to the neighbourhood plan area,
precinct or sub-precinct by marking a node, an intersection or
major connection point in the city;
(d) respecting the prominence of any adjoining or nearby heritage
places or local landmarks;
(e) incorporating public art that is integrated with the
development’s design response to the public realm.”
[318] I am comfortably satisfied that the proposal involves “notable architectural
excellence” which, in combination with its siting and location, will attain “citywide
prominence” and act as a “prominent visual reference”. Not only is the architectural
expression of the built form of high quality, but as Mr McKerrell said, it features
“striking, bold and attractive architectural forms”. Even Mr Richards described the
proposal as both striking and having visual interest, albeit that he thought that it was
out of context. The use of high quality, bold and interesting architecture, which Mr
McGowan (the visual expert engaged by the respondent) rightly described as “highly
recognisable and memorable” will significantly contribute to the achievement of
citywide prominence as a prominent visual reference. That will also be assisted by
the fact that the architect has adopted an approach of providing three tall, relatively
slender towers sited generally towards the northern and eastern parts of the site, which
will serve to broaden the area of its visual influence as a prominent visual reference
and contribute towards its attainment of citywide prominence. The proposal also
satisfies PO6(b) to (d).
[319] It was pointed out, for the appellant, that there are seven landmark sites in the TANP
area, at locations with varying topography and visibility from beyond. This, it was
submitted, reveals that there is no intention that development of a landmark site is to
be visually prominent from the CBD or otherwise from locations well removed from
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the site. It was pointed out that the landmark sites are located on corners consistently
with the intention, in PO6(c) of the TANP, for them to reinforce a sense of arrival to
the neighbourhood plan area and, consistently with PO6(b), to define the site.
[320] I accept that not all landmark sites are intended to be developed for buildings of
heights which can be seen from great distances, but it is relevant to have regard to the
opportunities presented by a particular site to achieve citywide prominence as a
prominent visual reference. In this case, the site is not only a riverfront site, and
indeed, the only riverfront site within the centre and at the arrival point to the centre
along Coronation Drive but, as Mr Chenoweth pointed out, it is located at the western
end of the river’s Milton reach. This presents the potential to provide a significant
visual reference for the Toowong major centre. The proposal realises that potential
by proposing a building with architectural expression, height and siting to enable it
to be a significant visual reference in the context of what will be a proliferation of
high rise buildings in the area. Further, it does so in a way that, as Mr McGowan
pointed out, ties the centre to Coronation Drive and to the river.
[321] It should also be noted that PO6 requires development on a landmark site to provide
not just a prominent visual reference, but also a contribution to the city’s public realm
by, in particular, incorporating public art that is integrated with the development
design response to the public realm. As discussed elsewhere, the adoption of a more
vertical built form in this case is accompanied by a greater than otherwise reasonably
expected contribution of publicly accessible open space which would make a
significant contribution to the public realm, including by incorporating public art (the
sculpture park) that is integrated with the development’s design response to the public
realm.
[322] I accept the evidence of Mr McGowan and Mr Chenoweth that the proposal provides
an exemplary response to landmarking on the subject site.
(iii) Sub-tropical design
[323] It has already been observed that the development exhibits architectural excellence.
It was contended, for the appellant, consistently with Mr Richard’s evidence, that it
is not an example of “sub-tropical” architectural excellence for the purposes of
PO6(a) of the TANP.
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[324] Mr Richards was looking for what might be regarded as a somewhat traditional or
“first principles” approach. He was looking for more rectangular, longer, narrower
building forms, orientated north/south. Longer sides would face north/south, enabling
shorter sides to face east/west with internal spaces orientating to the north and south
more than to the east or west, so as to minimise heat loads of low sun angles in the
mornings and afternoons. He was also looking for facades with larger windows to
the north/south and for horizontal screening on all of the facades where the sun angles
are generally higher. On the west and east, he was looking for facades that were more
closed with smaller, more vertical windows or vertical screening for lower early
morning and especially the hotter late afternoon sun. He was critical of the use of the
same façade treatment on every orientation of the proposed towers and the use of full
height glazing elements, with no sun shading.
[325] Insofar as building orientation is concerned, it would be surprising if, on the western
side of the river, a development sought to minimise its exposure to the east (towards
the river) notwithstanding sun exposure. The plethora of relatively new apartment
buildings on the opposite side of the river which are orientated towards the western
sun is testament to the attractiveness of views to the river and Mt Coot-tha beyond.
[326] It is difficult to see how it is in the appellant’s interest to advocate for buildings on
the site which are orientated more to the north, when that is the direction of the
appellant’s property. By orientating units around the towers, the architect has avoided
presenting a visually unattractive traditional “rear” of a building in any direction for
the development on this prominent landmark site.
[327] CP2014 does not define the expression sub-tropical design, and there are a number of
measures which are available to address Brisbane’s sub-tropical climate. Insofar as
the towers are concerned, that is most obviously done by incorporation of open
balconies which are embraced in this scheme but, as Mr Peabody pointed out, not
always in residential towers. Each balcony is shaded by the floor above and the
glazing to external balconies is set back from the extremity of the facades. The
buildings are articulated. They are, as Mr McKerrell pointed out, far from simple
glass towers.
[328] Insofar as Mr Richards’ criticism of the use of glazing, Mr McKerrell rightly pointed
out that there are many examples in sub-tropical Brisbane and elsewhere of high rise
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apartments with a substantial extent of glazed facades where the type of glazing, the
use of screens and blinds as well as air conditioning, deal with the heat load.122 These
could be matters addressed in conditions.123
[329] Insofar as the orientation of the building is concerned, Mr McKerrell noted that sun
protection must be balanced with desirability of orientating apartments to capture
attractive views. Insofar as the uniform presentation of facades is concerned, he
opined that, “I do not consider that it is necessary in the design of tall structures to
make substantial changes to the facades, except for predominantly blank core walls
which would not apply where views are paramount in apartment buildings. To escape
the sun’s rays would most likely entail fixed horizontal screening to a substantial
portion of the façade which would negate the views and would not be appropriate for
apartment design. The use of motorised screens activated with sensors on the outside
or inside of the glazed suite is as effective”.
[330] I accept that the towers, as designed can adequately deal with heat loading.
[331] Further, the response of the development to the sub-tropical climate is not limited to
that part of the development constituted by the towers. As Mr McKerrell said: 124
“In my opinion the site planning offers a considerable extent of
landscape spaces for vegetation to provide shade. The first habitable
floor (RL23.60) is raised above the general landscaped open space
without significant loss of views from shade trees. I note that the
approved development retains existing vegetation adjacent to the river
to capture the natural environment and enhance the riverfront public
area. The large fig trees to Coronation Drive further create the sub-
tropical appearance of the site.”
[332] Mr Richards accepted that sub-tropical design involves consideration of topography,
the diversification of the built environment, its integration with nature, the use of
vegetation, the provision of open space, a diversity of open space and the use of that
open space. He accepted that the proposal respects the topography of the land,
provides diversity in terms of the building environment, provides physical and visual
access to the river, provides a significant area of open space within which vegetation
122 Exhibit 13, section 3.3.
123 I note that the council’s approval package contained conditions (19, 86) dealing with the light
reflectivity and solar (heat) reflectivity.
124 Exhibit 13, para 33(e).
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will be incorporated, offers a diversity of open space compared with what is presently
available and involves a level of use of that area.125
[333] Whilst PO6 of the TANP Code is concerned with development on the site, I also note
that the council’s approval package contains conditions which require streetscape
improvement works along the Coronation Drive frontage of the site, which is to be
treated as a subtropical boulevard.126
[334] I accept Mr McKerrell’s testimony127 that the proposal (appropriately conditioned)
meets the description of sub-tropical architectural excellence through design,
treatment and articulation. Even if there was thought to be a level of conflict in this
regard, the merits of the architecture in assisting to provide a landmark which
provides a prominent visual reference, and contributes to the city’s public realm and
its overall merits are such as to warrant approval notwithstanding a lack of the further
sub-tropical design features for which Mr Richards was looking.
(iv) Tower-over-podium v Tower-in-plaza
[335] Mr Richards assessed the proposed development on the premise that the preferred
character of built form in the Toowong major centre comprises a podium and tower
design. He referred to a number of provisions of CP2014 in that regard.128 It may be
accepted that the TANP envisages and accommodates a tower-over-podium design
response and contains provisions which relate to proposals of that kind (see e.g. PO1,
AO1.5, PO4 and AO4) but does not, in terms, mandate such a design solution. The
proposal is for a “tower-in-plaza” form which must be assessed on its merits.
[336] A tower-over-podium design, whilst perhaps more easily meeting some of CP2014’s
provisions, would not be without its complications and issues on the subject site. For
example, as Mr McKerrell indicated in his evidence:
(a) podium designs would need to deal with the varying platform
levels;
(b) podiums would need to terminate before reaching
Middenbury, which would disconnect the podium from the
balance of the centre;
125 T6-29, 30
126 Condition 25.
127 T5-10. See also T2-58 (Chenoweth); exhibit 15, para 3.2.1(c).
128 Exhibit 60
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(c) podiums would need to provide openings for access and the
bikeway.
[337] The tower-over-podium response is unlikely to provide the same opportunities for the
creation of public open space and permeability through the site to the river, that are
offered by the tower-in-plaza form. Further, it would appear unlikely that there would
be any tower-on-podium development on adjoining land with which such
development on the subject site could link as part of a continuous podium. 129
(v) Streetscape activation
[338] It was submitted for the appellant that, largely as a result of its adoption of the tower-
in-plaza design response in preference to a tower-over-podium, the proposal finds
itself in conflict with the provisions of CP2014 relating to streetscape activation.
Insofar as the central provisions are concerned, the appellant relied particularly on
PO2 and PO11(a) if the TANP which provide as follows:
“PO2
Development:
(a) actively contributes to a vibrant and safe streetscape;
(b) provides a highly active frontage with a high proportion of
openings in windows that support their functioning at streets
with:
(i) high levels of on-street activity;
(ii) pedestrian movement and strong integration between
the footpath and adjoining ground level spaces;
(iii) seamless integration between indoor and outdoor
spaces;
(iv) a building design that results in sensitive massing and
articulation that creates human scale;
(c) creates safe and enjoyable pedestrian environment to minimise
the interruption of vehicular crossovers and entries.”
“PO11(a)
Development on the former ABC site as shown in Fig A:
129 T5–82, 83, T6-35.
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(d) enhances the pedestrian experience with high quality building design,
streetscape and waterfront amenities providing a direct and tangible
linkage between Toowong and the river.”
[339] It was submitted, for the appellant, that the proposal fails each of the outcomes
because:
(a) the proposed development does not create any streetscapes;
(b) there are no windows to support the functioning of streets;
(c) there is no on-street activity (and therefore neither vibrancy or safety);
(d) there are no indoor spaces that seamlessly integrate with outdoor
spaces;
(e) the proposed development does not exhibit any sensitive massing and
articulation or human scale elements.
[340] It is common ground that the proposal does not adopt the acceptable solutions for
these performance criteria. It was acknowledged, on behalf of the co-respondent:130
“Put bluntly, however, the innovative, interesting, design proposed
here was not necessarily contemplated by the authors of this scheme
who anticipated rightly or wrongly, but did not mandate, a more
traditional tower on podium design (which, as discussed herein, would
not have opened up the site and the river to the public).”
[341] What must be considered is how the proposal responds to the performance outcomes
and whether there are grounds to warrant approval notwithstanding any conflict.
[342] PO11(a) has been dealt with earlier.
[343] The existing streetscape at the frontages of the site are not of high quality. As Mr
Chenoweth said:131
“Apart from the large fig trees, the existing street frontages of
Coronation Drive and Archer Street have no particular streetscape
character or pattern. The Coronation Drive frontage to the site is not
particularly attractive as a streetscape or pedestrian environment and
is not ‘activated’ save for the pedestrian and cyclist use of the
footpaths.
[344] As Mr McGowan said:132
“Coronation Drive in the vicinity of the subject site has a fairly low
quality streetscape being dominated by traffic and the fairly inactive
130 Written submissions on behalf of the co-respondent, para 136.
131 Exhibit 7, p 6.
132 Exhibit 7, p 16.
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podium levels of the Toowong Village, and having no discernible
consistency (in terms of building scale, rhythm or permeability). The
subject site as it exists and when it accommodated the ABC
headquarters would have made little positive contribution to the
streetscape.”
[345] The subject proposal represents a significant improvement. As Mr McGowan went
on to say: 133
“the proposal by contrast will present a highly permeable and
attractive frontage which will invite people into the site (and the
expansive commons on offer) and will reconnect them with
Middenbury and the river, thereby creating a distinct memorable sense
of place. While such openness may be somewhat unusual for an inner
urban location, it will work in this instance where the scale and
significance of the site (and the quality of the proposed public realm)
justify deviation from the norm”.
[346] As was submitted for the co-respondent, the proposed development will create its
own attractive streetscape, especially in relation to the open space that will
incorporate the fig trees adjacent to Coronation Drive. Middenbury will also
positively contribute to the streetscape and Middenbury, in its final form, will provide
some activation of Archer Street. The proposal will, I accept, positively contribute to
the streetscape and its vibrancy and attract activity and pedestrian movement from
the street into the site. As has already been noted, the respondent’s approval package
contained conditions134 requiring streetscape works to the road reserve pavements of
the site’s frontages to both Coronation Drive and to Archer Street, with the former to
be treated as a sub-tropical boulevard. The proposal also features high quality design
and amenities including to the waterfront which, together with the streetscape, will
provide a direct and tangible linkage between Toowong and the river.
[347] The proposal would, I am satisfied, contribute to a safe streetscape and pedestrian
environment. It proposes only 1 vehicular crossover on each street frontage and
would provide a pleasant environment which would not only be enjoyable but, for the
reasons discussed earlier in the context of the traffic issues, safe as well in relation to
the interaction of pedestrians and vehicles. The streetscape improvement works have
been referred to. The respondent’s conditions package also required pedestrian
lighting for the full street frontage of the development.135
133 Exhibit 7, para 30.13.
134 Condition 25.
135 Condition 24.
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[348] The proposal is not consistent with PO2(b), which contemplates a frontage with
highly active built form with specified features. It was submitted, for the respondent,
that PO2(b) should be understood as referring to activation where buildings are
proposed on the streetfront, rather than as requiring such an approach. It seems to me
however, that the provision requires activation in a particular way. Whilst the subject
proposal does not achieve those things in the way contemplated by PO2(b), as was
submitted for the co-respondent:
“In any event, with respect to PO2(b) the subject proposal will provide
a highly active frontage to Archer Street and Coronation Drive. It will
be active in the sense that the subject land will be activated by
significant residential population coming and going, by visitors
enjoying the open space and river connection and Middenbury, and by
cyclists, pedestrians and runners moving through the subject land.
This activation will give the site a vibrant public sense of place. The
site with its resident population, bicycle path, footways, public spaces
and access to the river will indeed be highly active and this will be
obvious from the external street frontages.
There will be significant levels of activity on the proposed bicycle path
through the site which will provide a safe and convenient means of
access through the subject land for cyclists.
Pedestrian movement through the site will also be safe and convenient
providing connection to the Toowong major centre core or, indeed, the
open space along the river.
The combination of the pedestrian and cyclist activity will serve to
provide a high degree of activation along the internal ‘arcade’ and the
frontages of the site.”136
[349] The towers are obviously not of human scale, nor are they located on the street
frontage. Rather, the street frontage would be relatively open and would not be at all
pedestrian unfriendly. It would invite pedestrians to enter the site for the publicly
accessible open space, the (human scale) Middenbury and the facilities otherwise to
be offered on site.
[350] The proposal does find itself in some level of conflict with PO2, but exhibits
significant merit in the way that it addresses the streetscape.
136 Exhibit 24, p 5, para 8.
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(vi) Building transition
[351] It was submitted, for the appellant, that the proposal finds itself in conflict with
CP2014 by making no attempt to step down the height of the towers to provide
transition.
[352] Reference was made, in the outline of submissions for the appellant, to PO3 and A03
of MDC. PO3 provides, relevantly, as follows:
“PO3 Development for a large style multiple dwelling contributes
to neighbourhood structure and integrates with the existing
neighbourhood through:
…
(e) building height and setback transitions to an adjoining
existing dwelling house and areas of lower density
residential development.”
[353] The acceptable outcome provides that a development on a site of this size will be in
accordance with a structure plan. The issue about the absence of a formal structure
plan has already been dealt with.
[354] It may be accepted that the building height of the proposed towers proximate to the
appellant’s property do not feature a step-down or transition. It must be remembered
however, that a significant height differential is to be expected, given that the
appellant’s land, which is within the High Density Residential Zone, adjoins land in
the Major Centre Zone and the Toowong Centre Precinct. The potential amenity
impacts on the appellant’s land have been examined and found not to be undue.
Further, PO3 of the MDC does not form part of the appellant’s central provisions.
[355] PO21 of the CMUC Code, which is one of the appellant’s central provisions provides
relevantly, as follows:
PO 21
Development… where sharing a common
boundary with… premises in the low-
medium density residential zone…
provides buildings that are reduced in
bulk and form to provide a transitional
form of a compatible scale which protects
the amenity of lower density residential
AO 21.1
Development… where sharing a
common boundary with premises in
the low – medium density residential
zone… provides a building height
transition which complies with:
…
(b) the following:
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areas bordering centre or mixed use areas
by:
(a) stepping down in
height and scale;
(b) minimising impacts
including those
from overlooking
and visual
dominance;
(c) maintaining
adequate levels of
natural ventilation
and light
penetration to a
habitable room,
balcony and private
open space.
(i) the building height
within 10m of the
common boundary
is no more than 1
storey greater than
the maximum
acceptable outcome
for building height
on the adjoining
site;
(ii) the building height
within 20m of the
common boundary
is no more than 2
storeys greater than
the maximum
acceptable outcome
for building height
on the adjoining
site;
(i) all structures,
except adjoining
boundary fences,
set back a minimum
of 4m from the
common boundary;
(ii) an acoustic and
visual screen fence
of 2 m height is
provided on the
common boundary.
[356] Insofar as the subject site is concerned, PO21 applies only to transition to the
adjoining property at 20 Archer Street which, unlike the appellant’s property, is in the
Low-Medium Density Residential (up to 3 storeys) Zone. The tower closest to 20
Archer Street does not step down in height and scale towards the boundary with the
adjoining property but that property:
(i) is owned by the co-respondent;
(ii) has, notwithstanding its zoning, been approved for a 9 storey
development, and
(iii) will not be unduly affected by the proposal.
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[357] The extent of conflict by reason of not adopting building height transition in the
towers is not accompanied by an unacceptable adverse amenity impact. The conflict
is not grave.137
(vii) Centre legibility
[358] It has already been observed that the proposed towers are higher than would
reasonably be expected and indeed, would rival the height of development likely to
be developed in Sherwood Road, which is intended to accommodate the tallest
buildings in the precinct in order to improve legibility, and reinforce the primacy of
the centre and its role as a transit oriented centre.
[359] The advantages of adopting a more vertical building form, in terms of providing a
landmark and freeing up open space at ground level, have already been referred to. It
is relevant to also consider however, the extent to which development of the height
proposed on the subject site would affect the purposes for which the TANP provides
that Sherwood Road it to accommodate the tallest buildings.
[360] Whilst the three towers on the subject site might rival the height of a particular future
building or buildings in Sherwood Road, it must be remembered that it can reasonably
be expected that sub precinct (a) generally may be developed, in accordance with the
maximum building height table, to 25 storeys on sites of 1500m² or greater. It would
be reasonable to expect a cluster of tall buildings, reinforcing that sub precinct, within
the core of the centre. I accept Mr Chenoweth’s evidence to the effect that the
proposed development of three residential towers on the banks of the Brisbane River
will not detract from the Toowong Centre but will instead reinforce it and act as a
marker.138 Similarly, Mr McGowan said as follows:139
“Mr McGowan believes that if and when there is an intensification of
taller buildings along Sherwood Road (whether or not they are taller
than the proposal) the intensification itself (along with other ques such
as architectural expression, streetscape, building grain, activation,
etc.) can be employed to establish the primacy of the Sherwood Road
and the centre of the precinct. While the proposed development, as a
prominent landmark development, will always attract the attention of
people travelling through or around the locality, that does not mean it
will upset any desired structure for the area. To draw a comparison, it
137 T10-16, 17 (Perkins).
138 Exhibit 15, p 9.
139 Exhibit 7, p 19.
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109
would be clear that, although there are a number of tall and identifiable
buildings around the periphery of the CBD (1 Williams Street, Meriton
Towers at Herschel Street (Infinity) and Ivory Street (Soleil)) there is
a primary core (Queen Street and Reddacliff Place) that is expressed
through visually accessible open space, a legible street hierarchy, a
finer grain of built form, architectural expression and so on.”
[361] Mr Schomburgk140 saw the proposal as consistent with the reasons, stated in OO(4)(d)
for the intent that Sherwood Road accommodate the tallest buildings in the precinct
(i.e. to improve legibility and reinforce the primacy of the centre and its role as a
transit-orientated centre).
[362] I am satisfied that the height of the buildings proposed on the subject site would not
undermine the objectives sought to be achieved by the provisions of the TANP which
state that Sherwood Road accommodates the tallest buildings in the precinct.
(viii) Quality of the public open space
[363] Although the proportion of the site to be given over to public open space is
unquestionably generous, Mr Richards was critical of its quality. In that regard he:
(i) suggested that the open space would have a private rather than
public character;
(ii) suggested that it featured too little vegetation and shelter and
would not maintain the “natural quality” of the waterfront
experience, as required by PO11(e) of the TANP Code;
(iii) took issue with the amount and configuration of open space
provided at the river’s edge, and
(iv) questioned the ease of access, across the site to the river,
including by reference to the need to access different levels.
[364] In that regard:
(i) the contention that the open space would be perceived to be of
a private character is, I am satisfied, without substance. The
open space is to be retained in private ownership and control,
but:
140 T9-4.
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A. titling arrangements will not likely be on the minds of
those who would otherwise be attracted to use the
space;
B. conditions of any approval will require the area to be
publicly accessible. The respondent’s approval
package included conditions141 requiring the provision
and maintenance of “unimpeded and safe 24-hour
public access through the subject site, including urban
common areas…” and the installation and management
of a suitable system of lighting, to operate from dusk to
dawn, within all areas where the public may gain
access.;
C. the nature and extent of the space, its openness, its
permeability and its accessibility from the public
streets, the public cycleway through the site and the
provision of a range of facilities, for the public’s use
and enjoyment, make it unlikely that potential users
would perceive it as having a private character. As Mr
McGowan said:142
“Further, in response to Mr Richards’
concerns about the publicness of the open
space, the open spaces designated as public
open spaces will, in my view, clearly feel
public as they will be associated with the more
public aspects of the site (Middenbury and the
proposed café, the street edge and the heritage
listed fig trees, and the river). Further, the site
will be highly activated by the significant
residential population coming and going to the
site, by visitors enjoying the open space and
river connection, and by cyclists, pedestrians
and runners moving through the site. This
activation will give the site a vibrant public
sense of place.”
Similarly, as Mr Chenoweth attested143
“I think it will be very much a public site given
that the – and I think the public open space will
141 See Conditions 6, 10, 72 and 77.
142 Exhibit 24, para 8.
143 T2-13.
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be usable – be usable because it’ll have a – it
will attract use through having the heritage
building, through having cafés and outdoor
restaurants. It’ll have the river front; it will
have a sculpture garden; it will have a
bikeway going through it so everything about
the areas designated as public open space, I
think, will be successfully used by people and
successfully distinguished from those areas
that are private open space. So I think they’ve
achieved the primary aim of dealing with
public open space associated with residential
buildings which is getting that demarcation
clear as to what’s private and what’s public
and I think they’ve done that very well here.”
D. Mr Richards’ concerns that the relationship of the
towers with the open space will lead to confusion as to
the public nature of the open space, or make people
uncomfortable about its use by, for example, residents
of the villas claiming “some dominion” over the open
space between their villas and the river is, I am
satisfied, unfounded. I accept Mr Peabody’s evidence
that there is no incompatibility.144 Mr McGowan’s
evidencewas that the proposal: 145
“…has generally located private spaces above
the public ground plane (on top of the
podiums). The mere fact that a residential
tower adjoins an open space does not, in my
view, confine that open space as private and
belonging to the tower, as implied by Mr
Richards. In instance where the line between
public and private space may be less well
defined, the distinction can be made sharper
by a range of detailed design responses.”
(ii) the use of predominately hard-surfaced open space should
hardly be a surprise given OO(3)(n) of the TANP Code which
requires development to enhance the public realm and
144 T5-72.
145 Exhibit 24, para 9,
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112
pedestrian cycle movement with a network of parks, arcades
and plazas (e.g. predominately hard surfaced open space used
by the general public). In any event, as Mr McGowan pointed
out in his further statement of evidence,146 the proposal
incorporates a mix of hard stand plaza areas, turfed park
spaces, garden beds, as well as numerous feature trees and
screen trees throughout the site. Insofar as the natural quality
of the waterfront experience is concerned, the proposal is to
protect and enhance the riparian vegetation.147
(iii) It was submitted, for the appellant, that the towers are too close
to the riverfront and ought to have left more of that area for
open space. As has already been noted, complaint was also
made, in the context of the heritage issues, about the alleged
lack of respect for Middenbury which is towards the south-
western part of the site, further removed from the river’s edge.
AO11(a) refers to the provision of a “riverside” open space
area of a minimum of 3000m² and with a minimum Brisbane
River frontage of 40m. That is an acceptable outcome only. It
is perhaps debatable whether that envisages all of the 3000m²
to be on the River’s edge. I note that AO11(d) by comparison,
refers to public access to the entire Brisbane River “frontage”
for a minimum width of 12m (into which there is some
incursion in the case of the proposal). In any event, so far as
the performance outcome is concerned, it is evident that the
proposal provides an extensive amount of public open space
on this riverside site, including substantial open space adjacent
to the river’s edge. The public open space otherwise
appropriately and beneficially extends to other areas of the site
including around the retained, refurbished and repurposed
Middenbury and the sculpture park.
(iv) the design approach deals with the differing levels of the site
and would achieve a sense of permeability through the open
146 Exhibit 24, p 4.
147 See exhbit 1, p 109, area 13.
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space areas of the site. As was pointed out for the appellant a
pedestrian using the north-western access on Coronation
Drive, will not see all of the open space at the levels down to
the river’s edge. Such a person would however, be aware of
the location of the river, see the opportunity to walk towards
it, using the generous open space and will have a sense of
connectivity.148 Traversing the open space does involve
negotiating level changes. The appellant focused on the route
from the north-western Coronation Drive access which
involves, amongst other things, the use of stairs and a section
which is not open air. I accept however, Mr Peabody’s
evidence that the proposal represents a clever solution which
integrates the levels and still brings you from Coronation Drive
or Archer Street up to Middenbury and then back down to the
river frontage”149 and Mr McGowan’s assessment150 that
“despite substantial variation in topography across the site, the
design has managed to maintain a sense of openness and
connectivity between the variety of open spaces.” I also note
that the proposal includes equitable access arrangements for
those with disabilities.
[365] The appellant made a point that not all of the open space may be able to be traversed
(e.g. areas of planting or where there is riparian vegetation to retained) but, as
McGowan pointed out,151 that is not uncommon for areas of public open space.
[366] The public open space is, I am satisfied, generous in terms of quantity and appropriate
in terms of configuration and treatment. I accept Mr McGowan’s assessment,152 that
the open space contribution would be a significant resource for the Toowong
community and that the public access to the river will be a significant attraction to
many and effectively enhance the amenity in the entire core precinct, by reconnecting
Toowong with the river.
148 T5-72, 73.
149 T5-75.
150 Exhibit 24, p 9.
151 T2-99.
152 Exhibit 24, para 7.
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114
(ix) Visual amenity, character and integration with the centre and surrounding land
[367] The experts called by the respondent and co-respondent saw benefit in the distinctive,
striking, bold and interesting form of the proposal. Mr Richards, on the other hand,
saw it as underlining his view that the development does not fit with its context.
Further, he saw it as a private residential development beside the centre, rather than
an extension of the centre onto the subject site.
[368] The proposed towers are for residential uses, but the site will not be, and will not be
perceived to be, a private residential development divorced from the centre. The
ample public open space, with its improvements and facilities, including the
repurposed Middenbury, with its café/restaurant and information facilities, the
sculpture park, the café closer to the riverfront and the extension of the bicycle way
through the subject site will, as Mr McGowan stated, clearly give a public feel to
much of the site and achieve vibrancy and activity across the site. The extent to which
the development, through its permeability, offers a physical connection between the
Toowong Centre and the Brisbane River has already been noted. As Mr McKerrell
pointed out however, it will also establish a visual connection with the centre to the
Brisbane River, while the towers will provide a visual reference to the other principal
sectors of the major centre at High Street and Sherwood Road.153
[369] Insofar as an integration with the surrounding area is concerned, it has already been
noted that there is no call for physical integration (such as a shared vehicular access
way or the like) with the appellant’s property, which is used as a domestic dwelling
house, or to physically integrate with any other property. The proposal does however,
for the reasons discussed, open up the site and integrate it with the surrounding area
in terms of providing visual, cyclist and pedestrian access into and through the site.
[370] Insofar as the character of the area more generally is concerned, it must be
remembered that Toowong is undergoing a rapid transformation consistently with the
planning intent for that area. Its built form is increasingly being characterised by high
rise contemporary developments. The proposal will have a distinctive design, and be,
as Mr McKerrell attested,154 refreshing in terms of apartment building design, but that
does not make it inconsistent with the emerging and intended character of the area.
153 T4-93.
154 T4-44.
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115
In that regard I prefer the opinions of Mr Chenoweth and Mr McGowan to those of
Mr McDonald, who gave too little weight to the changing character of the area and
the potential for the proposal to fit with that intended and emerging character.
(x) Site planning generally
[371] The merits of the proposal are not limited to the architectural quality of the particular
towers. As Mr McKerrell and Mr Peabody emphasised, the proposal involves not
only innovative architecture but also meritorious master planning across the site.
[372] The site is one which challenges the designer to respond to a range of opportunities,
constraints and town planning aspirations. These include dealing with the site, its
topography (including changes of levels), road frontages and context, whilst realising
the potential of the site to achieve efficient development and rising to the challenge
of the site’s landmark and catalyst designations in a way which provides a prominent
visual marker of architectural excellence, respects Middenbury and its view corridor
to the river, retains the fig trees adjacent to Coronation Drive, does not place an undue
burden on infrastructure or create undue traffic impacts offsite, accommodates the
onsite vehicular movements and car parking without them dominating the ground
level, extends the bicentennial bicycle path through the site, makes a positive
contribution to the public realm, connects the centre to the river, provides activity and
vibrancy and does not unduly adversely impact on its neighbours.
[373] As Mr Peabody said, the design approach:
opens up the site to the Coronation Drive and Archer Street frontages, offering
a welcome relief to the existing hard edged built form;
establishes a new connection, both physical and visual, between the Toowong
Centre and the Brisbane River;
establishes a new dynamic public open space;
provides a landscape context for Middenbury which can be viewed, accessed
and enjoyed by the greater community.
[374] In the course of his testimony he said:155
“At the ground plain, in my opinion, this is just an outstanding solution to an
incredible site. The fact that, as I’ve noted, you know, approximately 50 per
155 T5-55.
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116
cent is handed over to public open space. Beforehand - and I’ve lived in
Brisbane for 20 years – but I was not aware Middenbury existed as a
building. Obviously, it was enveloped by the ABC site. Obviously the ABC
site has been demolished, or the buildings have been demolished and
suddenly that Middenbury is there for the public to actually perceive and
understand and now participate in and use and that, I think, is an excellent
gesture of the site which, I suggest, may not be achievable if you took a
podium-and-tower-type approach. I would be concerned that it would
become – the site would become more congested whereas, at the moment,
it’s incredibly permeable. You – standing on Coronation Drive and, your
Honour, I understand you would have had a site visit, but standing on
Coronation Drive you don’t see the river. You see the river if you look north
along Coronation Drive and you know the river’s there. I think anybody
who’s in that destination knows that the river’s there but what this site offers
is an opportunity that there’s a sense of permeability and there’s a connect
with across the river to the bank on the West End. You see through the site.
You know that there’s a vast distance there and, even when you imagine
where the towers will be, that permeability will exist and it leads your eye
and it leads your, you know, connectivity to the river and to the river edge
and the riverscape which includes the West End and the buildings on the
other side and I think that’s just a fantastic solution. It’s – I described – I’m
not too sure who to, but I describe this as almost like a – a gap in your smile,
insofar as in a reverse way. This site offers – by being so open, it’s actually
like a gap along the – the built form edges of Coronation Drive, which, in
itself, is – and to the – to the north of the site, you know, you’ve got the – the
fences of the existing residences and the like and to the south you’ve got,
you know, a higher-density sort of podiums building up to the new building
that’s under construction at the moment, which was referenced to earlier, the
Aspect site, and – which is at that node of the – the intersection and so this –
the – the – the approach of the design, in my mind, has really offered an
opportunity, just a breathing space, a bit of elbow room, and – and to that
extent is attributed to by, I guess, the vision of the design to create slender,
taller towers and give away a lot more land to open space, public and private
open space.”
[375] Further, the proposal deals appropriately with its context and its neighbours and
indeed, the other matters referred to above. Mr McKerrell’s conclusions,156 which I
accept, include:
(b) the master planning of the site has been skilfully executed with the
creation of a substantial landscape to showcase the refurbished
Middenbury (with extension) by introducing a conveniently located
and accessible bikeway and pedestrian access;
(c) the master planning has introduced attractive public and private access
pathways around the site and to the river’s edge to capture important
vista;
(d) the siting of the three residential tower structures is thoughtfully
conceived so as to minimise adverse effects from shadowing and
overlooking onto the neighbouring properties;
156 Exhibit 6, para 10.1.
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117
(e) the development further showcases the striking tower designs with
sculptural organic forms commencing at the ground level and rising to
the rooftops with considered and innovative architectural design
elements to complete the composition.
I consider that the height of each tower is acceptable and the
architectural composition formed by the three towers on the site
complimented by the emphasis given to Middenbury and the generous
public landscaped areas, visitors and access to the river, to be an
exciting and complimentary development which will create
considerable interest and support.
…
(g) the proposal has been thoughtfully planned for residents, visitors and
service vehicles so as to remove the parking utility areas from public
view.”
[376] In his testimony, Mr McKerrell said:157
“Well, your Honour, I think the authors have done an excellent job in
developing a scheme for this site – a proposal for the site. I’m really
impressed with the way that they’ve handled the master planning, the way
that they dealt with those issues I mentioned on Friday such as the access
points, the dealing with the access to the river, the sensitivity and the respect
for Middenbury, the open space to the site and dealing with the whole
concept of the site, and that is not to include a podium but to open it up so
it’s a landscaped site to get a greater vision into the site to actually open up
Middenbury to the public, to actually invite the public into the site. And
then, as well as that, I think they’ve done a very good job with the heights of
the buildings and the association back to the major centre. Together with
that I think that they’ve set out to do and have done very well putting this
site as a landmark development. They have striking buildings; they are
prominent buildings and I think that they will stay prominent whilst the
Toowong Centre is, as we know it, at the 15-storey mark according to the
code. As well as the architecture, as I mentioned before, I was really
impressed to see that architecture. It’s a totally different approach to what
we had been adopting for apartment buildings and I thought that was
refreshing. I thought that was going to be a good catalyst insofar as
resurrecting development and making it more exciting to develop in this
precinct just outside of the city frame. So I have lots of – I can see lots of
merit in the scheme. I think it’s a quality scheme. It’s – I can’t compliment
it enough, your Honour. I think it’s been a difficult site to deal with and
they’ve done an extremely good job…”
He described the architectural design and site planning response in relative terms as
“top of the class”.158
157 T5–46, 47, see also T4-87, 88.
158 T5–47.
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118
[377] I agree with Mr Peabody and Mr McKerrell that there is substantial merit in the way
in which the designers have responded to the diverse opportunities, constraints and
aspirations of the site in its context.
The conflict and grounds
[378] There was debate about the nature and extent of any conflict with CP2014. These
reasons have discussed the central provisions, alleged conflict with which the
appellant relies upon, in the context of the matters to which they relate. It is
unnecessary to catalogue the findings which have been made and which are recorded
earlier.
[379] I am satisfied that the proposal does not conflict with the Strategic Framework.
Indeed, for the reasons given earlier, the proposal supports some aspects of the
Strategic Framework.
[380] I am also satisfied that, notwithstanding the large number of provisions with which
the appellant alleges conflict, there are many provisions of CP2014 with which the
proposal is either consistent or positively supports or achieves. Those provisions have
been discussed in the course of these reasons.
[381] I am also satisfied however, for the reasons which have been given, that although the
conflict is not as great as was alleged by the appellant, there is a level of conflict with
a number of provisions, or parts of provisions of relevance to the assessment of the
subject application. The level of conflict is, I accept, significant.
[382] I have found that the proposed towers are of a height which exceeds reasonable
expectations,159 that the built form does not have an active built form edge to the
streetscape or at ground level (in the case of the towers) and the development does
not contain a balanced mix of uses or include a significant component of non-
residential centre activities. It has insufficient non-residential uses in order to avoid a
finding of some conflict on that account.
[383] Those matters are influenced by the adoption of a tower-in-plaza design response,
rather than the tower-over-podium approach. As was submitted for the respondent
159 Although I have also found that there is an economic and community need – see OO(3)(h).
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and co-respondent however, the appellant’s design response serves useful purposes,
in the public interest, in the present context.
[384] The decision to adopt a more vertical (higher and relatively slender) design response
does not speak of over-development. Rather it is a different configuration, which
results in much greater space at ground level than would otherwise be expected. Site
cover is much lower than what would reasonably be expected. Further, the tapered
base of the towers has the effect of further opening up the site at ground level, even
within the building footprint.
[385] The co-respondent has not only achieved a highly open site at ground level, but
proposes to turn much of that to the public benefit, by designating it as public open
space, with improvements to be incorporated. This open space:
(i) is much greater in area than could be expected, given the
acceptable outcomes in the TANP;
(ii) is to be improved with pedestrian and cyclepaths, open spaces,
landscaped areas and a sculpture park in what will be an area
of high amenity;
(iii) makes use of the generous public open space to make a
substantial positive contribution to the public realm;
(iv) is to be complemented, at ground level, by the retained,
refurbished and repurposed Middenbury (with its publicly
accessible interpretive centre, café and restaurant) and a
separate café closer to the river’s edge, for use by the public;
(v) will create an attractive and pedestrian friendly environment
and a high degree of permeability through the site and to the
river’s edge, and
(vi) will be active and vibrant.
[386] Further:
(i) the relative openness of the proposed development, at ground
level, assists in achieving a response to Middenbury which
respects its prominence and provides an appropriate setting for
that heritage place, and
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120
(ii) the greater permeability through the site, to the river’s edge,
assists in extending the centre, physically and visually, to the
river.
[387] The adoption of a more vertical built form, in conjunction with the site location,
building siting and adoption of a bold, interesting, architectural design of the highest
quality by a world renowned architect also capitalises on the potential to achieve city-
wide prominence as a visual reference.
[388] For the reasons discussed earlier, it is difficult to see how the community would be
substantially advantaged by the provision of substantially more non-residential uses,
particularly if those were provided, as the appellant would have it, in a podium spread
further across the site. That is only likely to reduce the scope for providing the
beneficial public space which is offered by the subject proposal. Further, for the
reasons previously discussed:
(i) The need for further retail or commercial uses at this time is not particularly
great and can be accommodated elsewhere, particularly in those parts of the
centre which TANP provides should be the focus of such uses.
(ii) The proposal will otherwise generate activity and vibrancy.
(iii) The proposal will otherwise improve the streetscape, and produce a pedestrian
friendly environment.
(iv) Would support the transit-orientated nature of the centre, locating a significant
resident population within the centre proximate to a range of transport facilties
[389] The respects in which the proposal is otherwise in conflict with the planning scheme
have been discussed. Any conflict is not accompanied by an undue effect. The
amenity impacts of the co-respondent’s proposal have been assessed and found to be
acceptable.
[390] Senior counsel for the appellant accepted160 that the quality of the architecture is
relevant, although he submitted that it should not carry the day.
[391] Economic and community need have been discussed earlier. For the reasons given,
there is a need for the development potential of the site to be realised and a need for
160 T12–36.
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the development proposed. The development would also be the instigator of further
activity within the centre.
[392] The merits of the proposal generally have been discussed earlier and are substantial.
[393] On balance, I am satisfied that there are sufficient grounds, in the public interest, to
approve the proposed development notwithstanding conflict with the planning
scheme.
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Official source: https://www.sclqld.org.au/caselaw/QPEC/2017/026