Baskerville & Ors v Brisbane City Council & BGM Projects Pty Ltd [2010] QPEC 143 [2011] QPELR 333

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Baskerville & Ors v BCC & Anor [2010] QPEC 143 PARTIES: EARL BASKERVILLE & ORS (appellants) v BRISBANE CITY COUNCIL (respondent) And BGM PROJECTS PTY LTD (co-respondent) FILE NO/S: 3234 of 2010 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 20 December 2010 DELIVERED AT: Brisbane HEARING DATE: 22 July, 20, 21, 22, 23 September 2010 JUDGE: Rackemann DCJ ORDER: The appeal against approval is dismissed. The development application will be approved, subject to conditions, the proceedings are adjourned to determine those conditions. CATCHWORDS: Planning and Environment – Application for reconfiguration from 2 lots and 32 lots in the Emerging Community Area – Submitter Appeal – Where site at interface of Emerging Community Area and Rural Area – Ecological and Landscape Value – Permeability, Connectivity - Integration – Character – Realistic Expectations – where proposal conflicts with part of Neighbourhood Plan adopted post application – Weight to be given to Neighbourhood Plan – Grounds to approve notwithstanding any conflict COUNSEL: J P Houston for the appellants B D Job for the respondent C L Hughes SC with him N Kefford for the co-respondent SOLICITORS: Herbert Geer solicitors for the appellants Brisbane City Legal Practice for the respondent Clinton Mohr Lawyers for the co-respondent -- 1 of 23 -- 2 INTRODUCTION [1] This submitter appeal is against the Council’s approval of the co-respondent’s application for a development permit for the reconfiguration of two lots, in order to create a 32 lot residential subdivision, with a suburban density, at Retreat Street, Bridgeman Downs. The site is described as Lot 12 on RP 77971 (Lot 12) and Lot 2 on RP 131791 (Lot 2). It has an area of a little more than two hectares. It is included within the Emerging Community Area under Brisbane’s City Plan. [2] The broader Bridgeman Downs locality is characterized by residential development of varying densities, including both suburban and acreage/large lot development. Much of the land between Roghan Road to the north, Beams Road to the south and generally east of Retreat Street, is included in the Emerging Community Area. It is serviced and, as one might expect, it is gradually being transformed to suburban densities. There remains however, a significant area of unserviced acreage/large lot development to the west, which remains in the Rural Area. Whilst, in terms of character, development in the rural area is more accurately described as large lot residential than rural, it is unlikely to be transformed to suburban densities in the immediate term, given its lack of services and Rural Area designation. [3] Retreat Street is “L” shaped. Its east-west leg runs west from its intersection with Ridley Road before turning north. The north-south leg terminates at what is, in effect, a cul-de-sac at the northern point of the street. The subject site lies on the eastern side of Retreat Street at its northern end, about the cul-de-sac head. [4] The north/south leg of Retreat Street and the western most end of its east/west leg lie at the interface of the Rural Area, generally to the west, and the Emerging Community Area to the east. It is proposed to subdivide the subject land into 32 lots of the following sizes: Area No of Lots 400 square metres 4 lots 450 square metres to 500 square metres 22 lots 500 square metres to 600 square metres 4 lots 800 square metres to 850 square metres 2 lots [5] Those lot sizes are within the range of what was typically expected in the Low Density Residential Areas of the city. There are only four proposed lots which, being less than 450 square metres, fall within the definition of a small lot, for the purposes of city plan. They are the four at the far eastern end of the site, fronting Dewberry Place which adjoin a proposed pedestrian pathway. At 400 square metres each those proposed lots are of a size which is contemplated in the Low Density Residential Area.1 In the context of City Plan the proposal is not a “high density small lot subdivision,” as described in the appellants’ particulars, although it would be the first subdivision of this density along the north/south leg of Retreat Street. 1 City Plan Ch 5 p 239 -- 2 of 23 -- 3 [6] Access for 25 of the proposed lots is planned to be from Retreat Street via a new road proposed for the subdivision. The remaining seven are to have access from Dewberry Place2 , which fronts part of the site at its eastern end. Land to the east of Dewberry Place has already been developed for suburban residential purposes. ISSUES [7] The issues in the appeal are set out in the Amended Notice of Appeal and the 20 pages of Further and Better Particulars, provided on behalf of the appellants. They are summarized in Exhibit 31 as follows: 1. Integration and compatibility with surrounding land; 2. Landscape and visual amenity, including the issues of significant landscape trees (SLTs under the Natural Assets Local Law 2003); 3. Ecology – Habitat and Fauna Corridors including the issue of tree retention; 4. Permeability and Connectivity, including compliance with the requirements of CPTED; 5. Reasonable expectations of residents, for the reasons set out above; 6. Conflict with the Scheme provisions covering the matters set out above; 7. Weight to be given to the Bracken Ridge and District Neighbourhood Plan; 8. Requirements of the Neighbourhood Plan reflect provisions of City Plan 2000 (eg Integration and Compatibility, Character and Fauna Habitat), but provide greater particularity for the specific area; 9. The proposed development cuts across the provisions of the Neighbourhood Plan; 10. No grounds to justify approval despite the conflict with the Scheme. The issues also took issue with the non-provision of parkland, but that was not pursued on the hearing, after Mr Schomburgk agreed, in the joint report of the town planners, that a monetary contribution could be required in lieu. [8] The issues also included grounds relied upon by the co-respondent to justify approval in the event of conflict with city plan. Not a best design test [9] The character and integration issues lay at the heart of the appellants’ case. While the appellants’ acknowledge that subdivision of the subject site may be expected, given its Emerging Community Area designation, they contend that the design of the planned subdivision, the size of the proposed lots and consequent loss of vegetation are such that it would not sufficiently integrate into its surrounds and would have an adverse impact on the character of the locality. [10] It would appear that the appellants would wish for an alternative plan featuring a lesser total number of lots, each of a larger area, providing a graduation from the acreage/large lots to the west to the suburban development to the east of Dewberry Place. They would also wish there to be greater access from Dewberry Place. The question however, is not whether some better form of development, from the appellants’ perspective, might be possible, but whether the proposal, the subject of this appeal, has sufficient merit to warrant approval. 2 There will also be an easement -- 3 of 23 -- 4 The legislation and the planning scheme [11] This appeal was instituted on 22 January 2010, after the commencement of the Sustainable Planning Act 2009. By reason of s 819 of the IPA however, the appeal is to be heard and decided under the now superseded Integrated Planning Act (IPA) as if SPA had not commenced. It is for the co-respondent to establish that the appeal should be dismissed3 . The decision must not 4 : (a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or (b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict. The development application was made on 5 January 2009 and so must be decided on the basis of the laws and policies applying as at that date, although the court may give such weight as it considers appropriate to any new laws or policies.5 Brisbane’s City Plan 2000, as amended to that point, is the applicable town planning scheme. [12] City Plan was prepared under the Integrated Planning Act (“IPA”) and seeks to advance the purposes of IPA, which is related to ecological sustainability. That, in turn, seeks to strike a balance that integrates the protection of ecological processes, economic development and social well being6 . City Plan seeks to do that by pursuing certain citywide Desired Environmental Outcomes and supporting strategies which include the following: • Maintaining and restoring the city’s biodiversity through, amongst other things, restricting development in environmentally sensitive areas and incorporating measures to mitigate and manage adverse development impacts; 7 • Enhancing social diversity, choice and accessibility by providing for a wide range of housing types and tenures across the city to meet the affordability, life cycle and lifestyle needs of different households, whilst ensuring that new development integrates with existing development, 8 protecting and enhancing the scenic landscape and promoting the city’s unique subtropical character through, amongst other things, providing for visual buffering and sympathetic development that is development which complements the surrounding character and style;9 • Achieving a safe, secure, equitable and comfortable city by, amongst other things, designing buildings, public places, pedestrian way and bikeways to facilitate casual surveillance and help reduce the risk and fear of crime, 10 3 S 4.1.50 IPA 4 S 3.5.14 IPA 5 S 4.1.52(2)(a) of the IPA 6 S 1.3.3 IPA 7 S3.1.12.1 8 S3.2.2.1 9 S 3.2.2.4 City Plan 10 S3.2.2.8 City Plan -- 4 of 23 -- 5 • Requiring development to enhance the amenity, environmental and cultural context of its locality by, amongst other things, development that is sympathetic to the character of surrounding areas, is legible and creates a sense of place. [13] The citywide DEOs and their supporting strategies are expressed in very general terms. In order to discern how those objectives are sought to be achieved across the city, one must go to the more detailed provisions of City Plan. [14] The DEO’s are expressed, in a spatial context, by the elements of the city. Those elements include: • Brisbane green space system • Residential neighbourhoods • Industrial locations • Centres • Movement system • Native title • Heritage Those elements are in turn, comprised of area classifications and their components. The Rural Area, for example, forms part of the Brisbane Green Space System which also includes the Parkland Area, Sport and Recreation Area and the Environment Protection Area. The subject site is not in any of those areas. The Emerging Community Area, on the other hand, together with the Low Density Residential Area and other residential areas are included within the “Residential Neighbourhoods” element of the city, which is primarily concerned with achieving an efficient supply of residential land and housing. [15] City Plan recognises, in so far as the Residential Neighbourhoods element is concerned, that11 : “In this context of rapid growth and changing lifestyles, the challenge for the city is to ensure an efficient supply of residential land and housing that can: • Provide a range of housing choices to meet the widening spectrum of needs and desires of the community. • Support the diversity of people and activities that contribute to a broad social mix in the city and therefore to its character and liveability. • Encourage affordable housing through the retention or provision of low cost housing, special needs housing and caravan parks. 11 S 4.2.1 of City Plan -- 5 of 23 -- 6 The critical elements are liveability, residential character, safety, servicing and accessibility – developing a sense of community.” [16] Reference to the provision of a “range of housing choices” to meet a widening spectrum of needs and desires” suggests that, when City Plan speaks of “residential character” and “developing a sense of community”, it is not seeking suburbs of homogenous development. In responding to the challenges of development in the residential neighbourhoods, City Plan provides as follows, in so far as housing choice and affordability is concerned12 : “The city’s residential neighbourhoods are to provide sufficient housing choice to enable residents to remain in their neighbourhood through all stages of their life if they wish. Housing choice requires a variety of housing types and tenures to be available across the city and to enable access to housing for a wide range of income levels.” [17] City Plan does not seek to provide an absolute protection from any kind of real or perceived impact on amenity, rather it seeks to promote “realistic” expectations and, in that regard, to:13 “ • Prevent intrusion of development that could seriously detract from residential amenity. • Allow development that complies with the plan. • Mitigate the effects of new residential development on existing dwellings to ensure daylight and sunlight, breezes and privacy. • Ensure new residential development contributes to pleasant living environments and is designed to integrate with, rather than be segregated from, existing development in the area. • Avoid through traffic in residential locations. • Ensure residential neighbourhoods are adequately buffered to mitigate the effects of industrial and other non residential uses. • Protect views from the impacts of development only where nominated in the local plan or where development exceeds the relevant code’s acceptable solution for building height, and as a result detracts from views from nearby properties. These community expectations also need to be balanced with expectations of housing choice to meet resident needs during all stages of their life and to meet different lifestyle choices …” 12 S 4.2.2.2 of City Plan 13 S 4.2.2.1 of City Plan -- 6 of 23 -- 7 [18] In this case there is no real suggestion of an undue specific amenity impact. The amenity concern relates more to a perceived detrimental impact on character. The maintenance of character is dealt with in s 4.2.2.4 of City Plan which acknowledges that: “Each neighbourhood has character derived from its architecture, sub-division and road patterns, location in the city, topography, vegetation, social composition, history and proximity to a local centre. Development should respectfully be compatible with the local character.” [19] In so far as newly developing suburbs are concerned, City Plan provides: “In newly developing suburbs, development is to support the emergence of an identifiable local character, considering aspects such as housing, vegetation, streetscapes, architectural styles, community facilities, open space, places to meet and socialise, bikeways, pedestrian facilities and local features.” [20] In so far as the Emerging Community Area is concerned, s 4.2.2.6 provides, in part, as follows: “Development in Emerging Community Areas is to be orderly, well planned, and will provide a diverse range of housing types and supporting uses. New subdivision and development is to achieve good urban design outcomes, connectivity in roads and open space and support local character identified in any relevant local plan (chapter 4). Isolated sub-division is inappropriate and new development will conform with local plans and detailed Neighbourhood Structure Plans …” [21] The statement of intent for the Emerging Community Area provides, in part, as follows: “The emerging community area is generally suitable for urban purposes at some future time. These areas have not been fully investigated and may contain pockets of land unsuitable for development because of scenic or environmental constraints. All land in this area requires the preparation of a neighbourhood structure plan before development can occur.” [22] The Desired Environmental Outcomes for the Emerging Community Area include the following: “1. A range of housing types and opportunities are provided to meet different needs, lifestyle choices and housing market diversity. 2. Land is developed in an orderly sequence, and in accordance with a neighbourhood structure plan and/or local plan. -- 7 of 23 -- 8 3. Land is developed in a sustainable manner to reflect the general form of the city by integrating development sites, community infrastructure, green spaces and important natural features. 4. Significant historical, architectural, topographic, landscape, scenic, social, recreational and cultural features and associations as well as fauna and flora habitats, fauna movement corridors, wet lands and waterway corridors, are protected and enhanced incorporated into the overall development of the area. 5. Development is well planned and integrated with surrounding land uses and is supported by local centres and basic community facilities. 6. Development does not impinge on existing or intended use of adjacent areas. Buffer areas are provided. Any interim uses do not prejudice future development. 7. Roads and other transport corridors are co-ordinated and interconnected to ensure pedestrian, bike, public transport and private vehicle accessibility between neighbourhoods, centres and other locations, providing a range of services and facilities. 8. Urban design promotes a sense of place and identity and community safety …” [23] The following (at least) may be observed in relation to those provisions: 1. In achieving the overall ecological sustainability balance across the city, the planning role of the subject land is as part of the residential neighbourhoods of the city, which are to provide an efficient supply of residential land and housing, rather than as part of other elements of the city, such as the Brisbane Green Space System. 2. As part of the Emerging Community Area, the realistic expectation is that the site forms part of land which is considered generally suitable for future urban purposes, which includes residential subdivision at suburban densities. 3. Nevertheless, the land must be studied in order to determine whether it contains a pocket (or pockets) of land which is unsuitable for development. 4. Development for suburban residential purposes should occur in an orderly sequence and in a way which integrates the development with the surrounding area, rather than being segregated or isolated from it. 5. The plan of subdivision should provide appropriate accessibility and safety. -- 8 of 23 -- 9 6. Development should support the emergence of an identifiable local character, but in a way which provides for diversity, rather than homogeneity. 7. Development should be consistent with “realistic expectations” concerning future amenity. [24] At the time the application was made there was no local plan for the area. Indeed, there was no local plan in force during the assessment of the application, its decision or even at the time that this appeal was instituted. On 9 March 2010 however, the council adopted a Bracken Ridge and District Neighbourhood Plan, (the Neighbourhood Plan) covering an area which includes the subject site. The Neighbourhood Plan had been in preparation for some time. The council’s resolution to prepare a Neighbourhood Plan for the area dates back to December 2006. An initial draft was released for informal public comment in December 2007, but it was not until January 2009 that a draft was the subject of formal public notification. The subject Development Application had been made by the time public notification commenced. In June 2009 the council resolved to proceed with the Neighbourhood Plan, subject to amendments made after consideration of public submissions. In September 2009 the council provided responses to public submissions but, as is already been noted, it was not until 9 March of this year that the council resolved to adopt the Neighbourhood Plan. [25] The Neighbourhood Plan divides the area in to a number of precincts. The intention for the various precincts (or parts thereof), variously include future residential, non residential and rural areas. The subject site falls within Bridgeman Downs Residential Precinct which, as the name suggests, contemplates future residential subdivision. In relation to Retreat Street in particular, the statement of intent for that precinct provides, in part, that: “Orderly subdivision of emerging community areas in Retreat Street will facilitate a transition from rural to higher intensity allotments consistent with low density residential areas”. [26] The subject proposal would result in a residential subdivision in to allotments of a density consistent with the Low Density Residential Area. In general terms, it is consistent with the intent for that precinct. There is however, a level of conflict, because the proposed allotments fronting Retreat Street, which are proposed to be a little more than 800 square metres each, fall within a cross hatched area on Map E of the Neighbourhood Plan, in which it is intended for there to be minimum lot sizes of 2500 square metres. That is dealt with later. The Neighbourhood Plan also maps the habitat and biodiversity values for the area. That is also discussed later. [27] In deciding this appeal the court may give such weight as it considers appropriate to the Neighbourhood Plan. Given that it has come in to force and that it represents the councils more detailed planning for the particular area (something which was previously missing from City Plan for this area) and which will guide the development of the newly established suburban residential area, it is deserving of consideration and of some weight. [28] It is evident that there is a level of consistency, at least at a general level, between the proposal and the intent for the precinct within which it falls. It is equally -- 9 of 23 -- 10 apparent however, that there is at least an area of conflict, dealing with the more detailed provision concerning the size of allotments fronting Retreat Street. The weight to be given to that particular provision, in the context of determining this appeal, is dealt with in greater detail below but, as has been said in the past 14 , the question of weight must take into consideration issues of fairness to the co- respondent, given that the Neighbourhood Plan was only adopted after this application was made, processed, decided and indeed after this appeal was lodged. Ecological value and landscape trees [29] The two allotments which comprise the subject land are currently “improved” with a house on each lot. The greater part of the allotments, to the rear of the houses, are no longer actively used, but were previously used for fruit growing and grazing. The rear parts of both lots are now dominated by weeds and pasture grasses. Those trees which presently exist are a mixture of native and exotic species. [30] City Plan, as it existed at the time the application was made, did not indicate any particular environmental significance for the subject land although, as has been observed, the intent for the Emerging Community Area admitted of the prospect that some land within it may be unsuitable for development. The recently adopted Neighbourhood Plan, is one of the local plans for the outer suburbs. Such plans seek to identify and map waterway corridors, habitat areas and ecological corridors and landscape features15 . The Neighbourhood Plan maps lot 12 as having habitat and biodiversity values, but the joint expert inspection carried out by the ecologists did not identify any significant native trees on lot 12. It is evident that the mapping in the Neighbourhood Plan is inaccurate. Similarly, there is inaccuracy in the mapping under the council’s Natural Assets Local Law 2003 on lot 12. [31] The ecologist agreed that the subject land does not have any remnant vegetation as defined in the Vegetation Management Act and, consistently with that observation, it is mapped as non-remnant in the current certified regional ecosystem maps. [32] It was agreed that the exotic trees on the subject land have little or no ecological value, irrespective of their SNV status under the Natural Assets Local Law. [33] There was some disagreement as to whether any of the trees on lot 2 qualified as SNV, but it was agreed that some canopy elements provide a “stepping stone” function for the more mobile native fauna. It should be noted that there is an east/west band of native trees with canopy connectivity, likely to provide the main route for wildlife movement, to the south on the subject site. In this context, the larger native trees on lot 2 are likely to serve a complementary role, by providing some additional “stepping stone” movement opportunities. [34] The proposal would involve the removal of exotics and some of the native trees and their replacement with street tree planting of native species together with plantings in the Retreat Street reserve, and the offset planting of propagules in non residential locations, such as nearby nature reserves. Such a strategy has the potential for a net gain, ecologically, including for the stepping stone function of the native vegetation on the site. 14 Hervey Bay City Council v BGM Projects Pty Ltd [2009] 1 Qd R 130 per Fryberg J at 142 15 See chapter 4 page 287 and at chapter 4 page 304a. -- 10 of 23 -- 11 [35] Attention focused upon the way in which that strategy should be carried out and, in particular, those trees which should be retained and those which could be removed. [36] Neither the City Plan, in its form as at the date of the application, nor the Neighbourhood Plan suggests that the site has significant landscape features. Dispute about the proposed Concept Plan, from a landscape perspective, also focused upon certain disputed trees for removal. [37] The trees, the loss or potential loss of which were ultimately controversial are as follows: (a) Tree 48 – Forest Red Gum (Eucalyptus tereticornis); (b) Tree 55 – Watkins Fig (Ficus watkinsiana); (c) Tree 56 – Forest Red Gum (Eucalyptus tereticornis); (d) Tree 62 – Mango (Mangifera indica); (e) Tree 71 – Poinciana (delonix regia) [38] In considering the importance of those trees in the landscape, it should be acknowledged that the relevant visual catchment is very limited, given the location of the subject site at the northern end of a long cul-de-sac street. The landscape of Retreat Street more generally can be described as having something of a manicured appearance, with exotic planting. As Mr O’Brien pointed out, the tall trees which are currently visible on other lots on the eastern side of Retreat Street are sufficiently obvious and the distribution is such that the loss of some large trees from the subject site will not change the character of the street as a whole. Further, as the arborists agreed, some existing native trees should be removed for reasons relating to their condition. The landscape is proposed to be embellished by the planting of street trees. (i) Tree 48 [39] This tree was identified in the first joint report of the ecologist as having high habitat and stepping stone values and should, subject to the advice of the arborist, be retained. The second joint report of the arborist said, in relation to this tree, that it: “is suitable for retention in conjunction with suitable design of surrounding infrastructure, i.e. roadways, storm water, sewers, pipe power and telecommunication services and earthworks. There is no arboricultural basis as to why this tree cannot be retained”. [40] The co-respondent’s landscape concept plan shows tree 48 being retained, but subject to the following note: “Retention of 48 is dependant on acceptability of suitable road design and appropriate T and RPA (Tree and Root Protection Area) to allow development of lots 22 and 23”. [41] Tree 48 is worthy of retention and the evidence presently suggests that it can be retained. There is no compelling evidence that it must be removed in order to construct infrastructure. It should be required to be retained. The developer is, of course, at liberty to make application to change any approval if problems are later identified. It is both unnecessary and inappropriate for me to speculate upon what the outcome of any such future application might be. -- 11 of 23 -- 12 (ii) Tree 55 [42] Tree 55 is a large native strangler fig on the northern boundary of the site. It has value, but its root system has serious implications not only for the development on the subject site but also for neighbouring properties as well. This was recognised in the written submissions on behalf of the appellants as follows: “While the appellants support the retention of the tree if possible, the uncertainty as to the effectiveness of methods to control the roots seem to make the tree inappropriate in the emerging residential community and accept that the benefits of an appropriate level of replacement planting in a more suitable location is an appropriate course”. [43] That is a realistic and appropriate concession. (iii) Tree 56 [44] Tree 56 is a Forest Red Gum. The first arboriculturalist joint report described it as “lopped some years ago. Poorly attached re-growth. Deadwood poor form”. It was given a “C” category, which is described as follows “those trees of low quality and value” with a note that such trees “will usually not be retained where they would impose a significant constraint on development”. [45] In the second arborist joint report it was said: “Tree 56 should not be adversely affected by the current allotment layout and may be considered for retention. The specimen exhibits evidence of previous lopping and as such may be structurally compromised. Further assessment via aerial inspection is recommended if the tree is retained”. Its value was described in the joint report of the landscape and visual amenity experts as being part of a “cluster which is also seen from the street”. The tree was also one identified in the first joint report of the ecologists as being worthy of retention. Under cross-examination Mr Olsen accepted that the tree had some value.16 In their second joint report the ecologists accepted that was dependant on closer arborcultural inspection of the upper limbs. Since the tree could be retained, the issue of its loss or retention is more one about the conditions of any approval, rather than an issue about which the application should be approved or rejected. The proposal would not be unacceptable if removal was justified by reason of its condition or the constraint it would impose on development. It was pointed out, on behalf of the appellants however, that no inspection has been undertaken in order to confirm that the tree is structurally compromised. [46] For the co-respondent it was pointed out that the structural condition of the tree is unknown, its value not as great as others and, given its location, may well create some complication for the house and driveway location on the relevant proposed 16 T1-23. -- 12 of 23 -- 13 allotment. Given it has some value however, I do not consider that a sufficient basis has yet been shown for its removal. That is perhaps something which could be further considered in the context of settling conditions, if further evidence emerged as to its structural soundness and/or the likely extent of imposition on a future owner. (iv) Tree 62 [47] The mango tree is visually pleasant, but is not a native species and its removal and replacement with a native species would be a positive ecological outcome. Further, its retention is likely to affect the utility of proposed lot 32. As Mr Rousseaux, the landscape architect employed by the council pointed out, having regard to the size of the tree, its location, the properties of Mango trees (including the fruit drop and leaf litter associated with them) it is appropriate to remove that tree and replace it with a Tulipwood to the south western corner of lot 32 in the proposed plan of development. I accept that is so. (v) Tree 71 [48] Tree 71 is a Poinciana. The landscape and visual amenity experts agreed, in their first joint report, that its retention is desirable. On the other hand, the tree is not of a sufficient size to have SLT status and is not prominent in the streetscape.17 It is an exotic species. Its loss is in favour of compensatory planting which would have a net benefit in ecological terms. I also note the evidence of Mr Tom 18 to the effect that the tree is susceptible to injury as a consequence of its highly exposed root system. It also overhangs the boundary and is susceptible to damage on the neighbouring property. On balance, I consider that its removal is justified, notwithstanding its landscape value. (vi) Planting [49] I have already noted the ecological benefits which would accrue from the removal of exotic species and the planting of native trees. For reasons discussed later, I consider that would be reasonable to require an even greater amount of planting, for character and visual amenity reasons. That will also, over time, add to the ecological benefit of the proposal and offset its impact on the landscape. (vii) Larger lots [50] It was submitted, on behalf of the appellants, that larger lots would allow for greater vegetation and thus preserve to a greater extent the capacity for a movement corridor through the site. While larger lot sizes than those proposed might provide scope for some further vegetation within each allotment, I am satisfied that larger lots are not necessary in order to satisfactorily protect and enhance the site’s values. PERMEABILITY, CONNECTIVITY AND INTEGRATION [51] It has already been observed that City Plan intends that new suburban residential development, such as is proposed, be orderly and achieve connectivity and integration. Isolated subdivision is generally inappropriate. What City Plan seeks in terms of integration, in the context of the Emerging Community Area, can be 17 Exhibit 13 par 167-178 and appendix F. 18 See T2-42. -- 13 of 23 -- 14 gleaned from section 6.1.3 of the Structure Planning Code provides, in part, that: (my underlining) “The application must demonstrate integration, namely: • compatibility of surrounding uses (existing and proposed) with the proposed use/s • how the proposal fits into the overall road hierarchy and transport network and how the street network will encourage the emergence of a co-ordinated neighbourhood… • that consideration has been given to the potential for the subdivision and co-ordinated and integrated development of adjoining Emerging Community…Areas • that the proposal does not prejudice the development of adjoining sites by shifting unreasonable costs of infrastructure on to adjoining properties, such as parks, stormwater management facilities, roads and bridges • how the proposal implements the requirements of applicable Local Plans…” [52] The residential use proposed is not incompatible with the surrounding uses, which are also residential. While there is an issue about the size of allotments, and whether that will have an adverse affect on character (discussed later), there is no incompatibility of the uses. [53] The proposal utilises both the Retreat Street frontage (for most of the lots) and the Dewberry Place frontage (for some of the lots) for access purposes. Each of those frontages are appropriate access points, in terms of the street network. Further, the proposed internal street network provides points of connection for future potential development, both north and south of the subject land. The internal road system, together with the proposed pedestrian path between lots 12, 13, 16 and 17, provide for pedestrian connection between Retreat Street to the east and Dewberry Place to the west and, from there, to through to the bus route on Ridley Road. The proposal is not “isolated”. [54] The proposal is quite unlike the gated communities in introverted estates referred to in the Structure Planning Code as being inappropriate. While Mr Schomburgk contended that there should be a road connection from the internal road system to Dewberry Place, that is not, in my view, necessary in order for the proposal to achieve an appropriate level of permeability, connectivity or integration. I note that the version of the draft neighbourhood plan, as of 2007, showed a future connection from Retreat Street to Dewberry Place, that does not feature in the plan as adopted. [55] The proposal, by reason of the features already referred to, has given consideration to the potential for the subdivision and co-ordinated and integrated development of adjoining emerging community areas. There is also no suggestion that the proposal would prejudice the development of adjoining sites, by shifting unreasonable costs to adjoining properties. -- 14 of 23 -- 15 [56] There was no local plan at the time this application was made. The conflict between it and the Neighbourhood Plan’s provision regarding minimum lot sizes along the Retreat Street frontage is dealt with later. [57] The proposal represents orderly development. There was no suggestion that the development is, in any way, premature. [58] I am satisfied that, leaving the character issue to one side, the proposal achieves satisfactory permeability, connectivity and integration. Cpted issues [59] It was suggested that the proposed pedestrian path would be unsafe, but the pathway: (a) would provide a valuable asset as a local pedestrian link, allowing a more direct connection to the nearest bus stop for those on the northern leg of Retreat Street; (b) Is unlikely to be a point of congregation. [60] While Mr Rousseaux thought that better arrangements might be available, I accept that the proposal is an acceptable outcome, subject to a condition requiring lighting, as suggested by Mrs Wellington and Mr Brown. I do not think that the fears raised on behalf of the appellants are such as should lead either to the refusal of the application or any requirement that the otherwise beneficial proposed infrastructure be deleted. Character, visual amenity and reasonable expectations [61] A primary concern of the appellants is the effect which they fear the proposal would have on the character of their neighbourhood. In this regard, particular reference was made to the disparity between the size of the lots proposed and the existing allotments in Retreat Street, particularly on its north/south leg. [62] The existing character of the area in general and Retreat Street in particular, (including its north/south leg) is mixed. It features variations in house size, age, front fencing, gardens, street trees and set backs. Whilst one can appreciate the width of the allotments from Retreat Street, the full extent of their depth is not always as easily perceived. Many houses have substantial high front fencing and impressive entry gates on to the street frontage. As Mr Schomburgk said, there is something of the “grandiose” apparent in relation to a number of the properties. [63] As it has been previously noted, the subject site lies near the head of the cul-de-sac at the northern most extremity of Retreat Street. The visual character of that end of the street is affected by the cluster of properties, with substantial fencing and impressive entry gates, which access that part of the street. [64] Whilst the properties on the western side of the north/south leg of Retreat Street are generally acreage blocks, there are three exceptions, each of which are about 1000 square metres. One of those is also situated about the cul-de-sac head, immediately opposite lot 2. At street level it is difficult to observe much about the house, its set back or character otherwise, because the street presentation is dominated by a tall brick front fence and extensive vegetation between that fence and house. The street -- 15 of 23 -- 16 frontage of the property immediately opposite lot 12 features a tall solid masonry white fence. [65] In the east-west leg of Retreat Street there are a number of acreage properties, but also three properties of about 2370 square metres and one of 3015 square metres. The Dress Circle Court residential subdivision, on the southern side of the east-west leg of Retreat Street, features suburban sized allotments which vary from 700 to a little more than 800 square metres. It directly adjoins acreage allotments, including land in the Rural Area designation under City Plan. [66] Realistic expectations must take into account the provisions of the planning scheme concerning the future character of the locality. Given the Rural Area designation of the land to the west of Retreat Street, it is unlikely to be further subdivided in the near term. That is confirmed by the Neighbourhood Plan which includes that land within the Bridgeman Downs Precinct which are: “Areas of unserviced land in Bridgeman Downs… (which) will not be considered for urban development during the life of this Neighbourhood Plan”. [67] While included within the Rural Area, the Neighbourhood Plan acknowledges the area has developed as “large residential lots with onsite water and sewerage services”. Indeed, it is the lack of appropriate infrastructure, on the western side of Retreat Street which impedes the consideration of this area for closer residential settlement. The Neighbourhood Plan however, indicates that this might change. In particular, it provides: “In the event that a comprehensive infrastructure scheme is provided, then council will review the area classification designation where consistent with the aims of the Bridgeman Downs Residential Precinct”. [68] Those infrastructure difficulties do not however, affect land on the eastern side of Retreat Street which, in accordance with its Emerging Community Area designation and its inclusion within Bridgeman Downs Residential Precinct, is intended for orderly subdivision for higher intensity allotments, consistent with the low density residential areas. That is what the proposal is [69] It will be seen therefore, that the planning intent for the different sides of Retreat Street are different and realistic expectations concerning future character and amenity must take that into account. Change is to be anticipated. Homogeneous development, on both sides of the street, is not. As Mr Schomburgk accepted, there is nothing particularly unusual about seeing housing at different densities across the street from each other. Indeed, in the east/west leg of Retreat Street it occurs even on the same side of street. The proposed development should be sympathetic with the emerging character. [70] Assessed on the basis of the provisions of the City Plan in force at the time the application was made, the proposal would not have an inappropriate affect on character or unreasonable impact upon amenity. The presentation and impacts of the proposal fall within reasonable expectations. given the planning scheme provisions at the time. [71] The appellants point, in particular, to the provision of the Neighbourhood Plan which provides that, in an area cross hatched on Map E, minimum lot sizes of 2500 -- 16 of 23 -- 17 square metres are intended to be achieved. The area cross hatched runs along the eastern side of the north/south leg of Retreat Street north, of the 3115 square metre corner block. It is only the front part of those allotments which is so cross hatched. There is nothing to indicate that the major parts of the allotments are inappropriate for subdivision into higher densities, consistent with Low Density Residential Areas. [72] By that provision, the Neighbourhood Plan evinces an intention to soften the change on either side of Retreat Street in a way which will see the eastern side of the north- south leg of Retreat Street developed, in the future, for lot sizes similar to those which appear on the northern side of the western part of the east-west leg of Retreat Street. It is appropriate to take that into account in considering the emerging character of the street. [73] The co-respondent’s response to this was to amend its initial proposal, in order to soften that interface, albeit not in the manner now required under the Neighbourhood Plan. [74] It has already been noted that the subject site currently consists of two allotments each of which is improved with a house with access from Retreat Street. The proposal, in accordance with the application as made, saw the subdivision into 34 lots with 3-4 lots (Lots 1, 2, 31 and 34) on the Retreat Street frontage, together with the new internal access road. That was not inconsistent with the draft of the Neighbourhood Plan, then in existence, which did not have the cross-hatched area or any requirement for 2,500 square metre blocks fronting the eastern side of Retreat Street. [75] By the time the application was decided, the Council had decided to amend the then draft Neighbourhood Plan to include the cross-hatched area, but nevertheless approved the subject application. Although the council did not formally notify everyone of that proposed change, the co-respondent came to know of it at some point and amended its plan, to reduce the number of proposed lots to 32 and to have only two lots, each in excess of 800 square metres on the Retreat Street frontage. Hence, the two houses which currently access the Retreat Street frontage from the site would be replaced with a residential subdivision which, apart from the new access road (which would be reasonably anticipated19 ) also featured only two allotments, with one house on each, along the Retreat Street frontage. [76] The smaller of the two proposed new lots fronting Retreat Street has its wider dimensions to that street. The street frontage of that lot would be 26 metres. Further, in the course of the appeal, the applicant volunteered a condition requiring the development on each of those lots to be orientated to Retreat Street, and set back six metres from the property alignment. The proposal also incorporates street tree planting on the Retreat Street frontage. Further conditions, requiring even more street tree planting, as well as appropriate fencing and planting within those allotments may also be reasonable. 19 Mr Schomburgk did not contend that some access to Retreat Street was unacceptable. -- 17 of 23 -- 18 [77] Subject to the conditions referred to, I accept that development fronting Retreat Street and the houses to be constructed on them, would not have an undue impact on the existing or emerging character and would constitute an alternative, but reasonably effective way of achieving appropriate integration in terms of character. [78] That allotments substantially less than 2,500 square metres can make a positive contribution to the character of Retreat Street is perhaps exemplified by the property immediately opposite Lot 2. Mr Schomburgk, the town planner engaged by the appellants, saw that property as making a positive contribution to the street, notwithstanding its size. He put this down to its fencing and landscaping which, he thought, “gives an impression of some sort of grandeur behind it”. Appropriately treated, proposed Lots 1 and 32 could also, I am satisfied, make a positive contribution. [79] It was submitted, on behalf of the appellants, that the lot immediately opposite Lot 2 was viewed in the context of other larger sites. So too will proposed Lots 1 and 32. Until such time as development occurs on adjoining land within the Emerging Community Area there will be acreage blocks on either side. When subsequent development occurs, the Neighbourhood Plan (which would not simply be a matter of weight in the determination of such applications) will still mean that Lots 1 and 32 will likely be seen in the context of allotments of the order of 2,500 square metres. Properly treated, proposed lots 1 and 32 will be sympathetic. I appreciate that the lot sizes, viewed in plan form, will be appreciably smaller, but visual character is rarely perceived from a birds eye view. [80] Some point was sought to be made that the existing houses on the eastern side of the north/south leg of Retreat Street are set back more than 6 metres from the front boundary. There is no guarantee that those houses and those setbacks will remain, as further development occurs, but in any event, I am satisfied that the proposed development can achieve a sympathetic character with the setbacks proposed. [81] Mr Schomburgk suggested that it was not just the appearance of the lots fronting Retreat Street that was important. It became clear that Mr Schomburgk’s principal concern was not so much about the appearance of the two properties to front Retreat Street, but rather the houses that would lay behind them. He accepted that the fronting allotments “themselves may be able to be conditioned to fit in”, but he pointed out that the adoption of larger lot sizes on Retreat Street would push the smaller allotments in the development further away from the Retreat Street frontage. He confirmed that in the event of approval, he would support conditions requiring a greater degree of landscaping and some front fencing to assist in the presentation of the two proposed lots to front Retreat Street but he would also wish for those lots to be larger, so as to push the smaller blocks further to the east. He saw that as being important in obviating what he considered would be the sight of “cheek by jowl” housing, stretching along the internal road system. [82] Comparisons were sought to be drawn with development in Wimbleton Circuit, which fronts Beams Road, in a different part of the suburb. The first ‘leg’ of Wimbleton Circuit begins with one lot of only 316 square metres and 12 metres -- 18 of 23 -- 19 frontage on the northern side and one of 312 square metres with a 15 metre frontage on the southern side. There is then a row of properties, on either side of the street, with areas of between 300 square metres and frontage of between 9.5 metres and 15.8 metres. [83] I do not consider that Mr Schomburgk’s concerns, in this regard, warrant refusal of the application. There would only be a very limited area, at the northern extremity of Retreat Street, from which a view down the new internal access road would be obtained. Any such view would be affected by the fact that the land falls from west to east and that the view of future housing will be screened, to some extent, by the proposed street planting. [84] It is difficult, in any event, to describe what is proposed as “check by jowl”, particularly on the northern side of the access road. As one looked down the access road on that northern side, one would observe the longest dimension of the 836 square metre Lot 32 (at about 26 metres) followed by the road surface of the internal cul de sac followed by two lots with frontages to the internal road of 27.1 metres and 24.3 metres respectively, before the houses are again broken up by the road surface of the north-south leg of the proposed internal access road. That could not in my view, be described as “cheek by jowl”. [85] The situation is somewhat different on the southern side of the proposed new access road where, following the 19.55 metre frontage of Lot 1 to the internal access road, there would be a series of further allotments with frontages of typically 15 metres before one gets to the north-south leg of the internal access road. As has been observed, however, the visual impact of that would be softened by the proposed street planting and, in my view, it would be reasonable to impose, by way of condition, an obligation for even more planting. I do not consider that the proposal, in its intended form, will present itself to Retreat Street as the housing in Wimbleton Circuit presents itself to Beams Road. [86] In context, and given: (i) the location of the development at the northern most end of Retreat Street, about a cul de sac which features a cluster of fences, gates and access ways, (ii) the location of a 1,000 square metre block (approx) immediately opposite the subject site, (iii) the limited very visual catchment of the development, (iv) the proposal to limit development on the Retreat Street frontage to two allotments plus the access driveway,(v) the ability, by way of condition to achieve an appropriate and sympathetic streetfront presentation, (vi) the lot layout on the northern side of the internal road system and (vii) the ability to soften the visual presentation of development further into the site, by street tree planting, I am satisfied that the proposal would be sympathetic to the existing emerging character of the locality, Retreat Street and this part of Retreat Street. In this respect I prefer the evidence of Ms Wellington and Mr Brown to that of Mr Schomburgk. Indeed, I prefer Mr Brown’s evidence more generally. [87] Counsel for the appellants pointed out that a consideration of character is not limited necessarily to a consideration of what can be seen. As was established in -- 19 of 23 -- 20 Broad v Brisbane City Council20, more subjective considerations can come into play although the weight to be given to such considerations is ultimately a matter for the court and may not be decisive. [88] I accept that, following this development, the residents of Retreat Street will no doubt be aware that there is a suburban subdivision of greater density than currently exists in this part of Retreat Street and may be able to detect things such as increased pedestrian and traffic movement in their street. They will also experience it if they walk through the internal road in order to see one of their new neighbours or to use the newly provided pedestrian way. None of that however, is beyond the scope of realistic expectations. Both City Plan in the form in which it existed when the application was made as well as the subsequent Neighbourhood Plan, envisage subdivision of the subject land to suburban residential densities including densities of the kind proposed, at least over the majority of the land. That could be expected even if the 2,500 square metre provision in the Neighbourhood Plan is enforced. There should be nothing objectionable about knowing that there is a diversity of allotment sizes available for people who want to live in this part of Brisbane on more modest properties at a more modest price. [89] Counsel for the appellants, in contending that significant weight should be placed upon the 2,500 square metre provision in the Neighbourhood Plan, submitted that the proposal would significantly cut across that provision, given that it only applies to a limited number of allotments. Indeed, the subject site would make up some 40 per cent of the street frontage of Retreat Street to which the cross-hatched area applies (although, as I have noted allotments in the order of 2500 square metres exist south and east along the same side of Retreat Street). That is a relevant consideration. However, it must be balanced with considerations of fairness to the co-respondent, who made its application well before this provision came into effect or was proposed, and given the fact that it has demonstrated that it can achieve a sympathetic interface between the different designations and integrate the proposal, in a character sense, by an alternative means. I do not accept that approval of this application will render the enforceability of the neighbourhood plan futile. On balance, I am not prepared to give the 2,500 square metre provision of the Neighbourhood Plan decisive weight in this case. That does mean that it should not be decisive for future applications lodged subsequently to it coming into force. Conflict and Grounds [90] In their further amended notice of appeal the appellants contended that the proposed development would compromise the achievement of a number of desired environmental outcomes and conflict with a number of other provisions of City Plan. It was contended that there are no grounds that would justify approval notwithstanding that conflict. [91] The city wide desired environmental outcomes (and supporting strategies) relied upon related to the natural environment and waterways, integration, visual buffering, sympathetic development, design for safety, enhancing character, 20 [1986] Qd R 317. -- 20 of 23 -- 21 legibility and sense of place. For the reasons given, I do not consider that the proposed development would compromise the achievement of any of those to the city wide desired environmental outcomes. [92] The appellants also relied upon a number of desired environmental outcomes for the emerging community area, which appear in part 4 of chapter 3 of City Plan. Those desired environmental outcomes are set out earlier, and for the reasons which I have given, I do not consider that the proposed development would compromise the achievement of any of them. [93] The appellants also relied upon the desired environmental outcomes for the Residential Areas in part 5 of chapter 3. While the subject site does not fall within the “residential areas”, it is proposed to be developed in a way which would be consistent with development in the Low Density Residential Area. It is therefore appropriate to have regard to the desired environmental outcomes for such areas. Those relied upon by the appellants are as follows: “2. Houses are located on new vacant lots that comply with the minimum size requirements provided in the plan and the subdivision does not occur of existing or approved buildings including houses, so as to maintain the character and amenity of residential neighbourhoods and the expectation of residents. 4. Neighbourhoods have a sense of place based on their location, residential nature, heritage, topography, natural environment, built form and proximity to a local centre. 6. Houses on small lots are of a size and style that ensures amenity impacts on other dwellings and their private open space is minimised.” [94] It has already been observed that there are only four “small lots” in the proposed development and they are at the less contentious eastern end of the development. They will not have any undue amenity impacts on other dwellings and their private open space. For the reasons stated, the proposed development will respect the neighbourhoods existing and emerging “sense of place”. The proposed new lots comply with the minimum size required as provided in City Plan as at the time the application was made. While there is a degree of conflict with the size of lots fronting Retreat Street which are sought in the new neighbourhood plan, that plan is a matter of weight only and, for the reasons which I have given, I do not consider that the 2500 m2 provision ought to be given determinative weight in this case. [95] I do not consider that the proposal would compromise the achievement of the desired environmental outcomes relied upon by the appellants. [96] The appellants relied upon s 4.2.2.6 of chapter 2 of City Plan, dealing with the Emerging Community Areas. That provision is set out earlier. For the reasons I have given, I do not consider that the proposal conflicts with that provision having regard to the form of City Plan as of the date the application was made. That provision refers to development which conforms with the local plans. There was no -- 21 of 23 -- 22 local plan in existence at the time the application was made. I have otherwise dealt with the weight to be afforded to the new neighbourhood plan. [97] The appellants asserted conflict with the first two performance criteria of the Biodiversity Code to provide as follows: “P1 Ecological features and processes on or adjacent to the site, including those identified in the natural assets planning scheme policy, must be protected, managed and restored, where necessary, to ensure their long term viability. Note: Brisbane City Council ecological assessment guidelines provides guidance on demonstrating compliance with this part of the code. P2 Ecological corridors within or adjacent to the site must be identified and retained to create, maintain and/or improve connectivity between habitat areas and to allow wildlife movement between habitat areas.” [98] For the reasons which I have given, I consider that the proposal is acceptable from an ecological perspective. Indeed, I am satisfied that it holds the promise, over time, of achieving a net gain in terms of the site’s ecological significance. I do not consider that there is conflict with the nominated performance criteria. To the extent that the removal of any of the disputed trees creates an arguable area of conflict, I have identified grounds which would warrant the removal of those trees (and any associated conflict). Further, the gravity of any arguable conflict created by removal of such trees is, in my view, overwhelmed by the merits of the proposal as a whole otherwise. [99] The appellants also relied upon certain performance criteria of the Sub-division Code in chapter 5 of City Plan. The provisions relied upon relate, relevantly, to issues such as integration, neighbourhood identity, integration, permeability, streetscape and landscape, safety, security, biodiversity to the appropriate size of lots, the design of small lots and appropriate movement networks design. These issues have been discussed earlier and, for the reasons which I have given, I do not consider that the proposal is in conflict with those provisions. [100] The appellants’ issues made reference to the Natural Assets Local Law 2003. That is not part of the planning scheme, but has been had regard to in the assessment of the value of the vegetation and the acceptability of tree removal. [101] The appellants also rely on certain aspects of the Structure Planning Code. The issues raised in this regard are issues, such as orderly development, impact on natural features, existing character and movement systems and the like, which have already been considered. I am satisfied that the proposal is not in conflict with the structure of planning code. [102] Moreover, I find that the proposal will not compromise the achievement of the plans DEO’s. I also find that the proposal does not conflict with the provisions of the planning scheme otherwise relied upon. There is some conflict with the neighbourhood plan, but that is a matter of weight only in the context of this appeal. -- 22 of 23 -- 23 [103] Had there been conflict with the planning scheme, I would have had to consider whether there were grounds to justify approval notwithstanding that conflict. I accept that the following matters, identified on behalf of the co-respondent, would have been relevant to assessing the overall merit of the proposal notwithstanding any conflict: (a) The net ecological benefit achieved by removal of exotic species from the site. (b) The valuable asset provided in the local pedestrian link, which improves pedestrian connectivity between this part of Retreat Street and the bus stop on Ridley Road. (c) The future dedication of additional road reserved for Dewberry Place. (d) The increase in diversity of lot size available in the locality. (e) The efficient use of land (and infrastructure) in the emerging community designation achieved by the proposed development. Conclusion [104] I am satisfied that the co-respondent has discharged its onus in establishing that the appeal against approval of the application ought to be dismissed. The application will be approved, but subject to somewhat different conditions. I will adjourn the further hearing of the proceedings in order to permit time for those conditions to be agreed or determined. -- 23 of 23 --