Blue Sky Pty Ltd v Brisbane City Council & Anor [2010] QPEC 116 [2011] QPELR 182

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Blue Sky Pty Ltd v BCC & Anor [2010] QPEC 116 PARTIES: Blue Sky Pty Ltd (Appellant) And Brisbane City Council (Respondent) And Stephen John Pellegrino (Co-Respondent) FILE NO/S: BD 2324 of 2004 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court, Brisbane DELIVERED ON: 18 October 2010 DELIVERED AT: Townsville HEARING DATES: 23, 24, 25, 26, 27, 30 November 2009 and 1 December 2009; (Final written submission 28 December 2009). JUDGE: Durward SC DCJ ORDERS: 1. Appeal dismissed CATCHWORDS: ENVIRONMENT AND PLANNING - CULTURAL HERITAGE VALUES - PARK LAND - New Farm Park - Development application to build café, kiosk, restaurant and function room facility on lease area within park boundary - Heritage values - Heritage Place Code - whether size, scale and intensity conflict with heritage values of an historic early 20th century metropolitan park ENVIRONMENT AND PLANNING - ARBOREAL ISSUES - PRECAUTIONARY PRINCIPLE - historic trees and palms - value and protection - presence of tree pathogen "phellinus noxious" - whether trees already infected or will be at risk of infection by work associated with development proposal - whether application of precautionary principle -- 1 of 68 -- 2 appropriate ENVIRONMENT AND PLANNING - AMENITY - noise - patron, service & delivery vehicles, functions - impact upon adjacent residential area ENVIRONMENT AND PLANNING - NOISE MANAGEMENT - whether noise management strategies sufficiently address noise impact on amenity - 'MANAGEMENT STRATEGY FOR FUNCTIONS' - whether proposal effective and enforceable ENVIRONMENT AND PLANNING - TRAFFIC - traffic flow impact on adjacent residential area - non-residential traffic in short cul-de-sac medium density residential street - whether amenity impacts - PARKING - application of parking requirements of City Frame - whether demand on parking impacts on park values - whether impact on adjacent residential area - whether impact on internal ring road of park outside lease area ENVIRONMENT & PLANNING - CONSTRUCTION OF PLANNING SCHEME - CONFLICT - SUFFICIENT GROUNDS - whether conflict with Planning Scheme - whether sufficient grounds to justify approval despite conflict LEGISLATION: City Plan 2000 Ch 3, Ch 5, Heritage Place Code (2003 & 2007), TAPS Policy, TAPS Code, Park Code, Transport Access Parking and Servicing Code Queensland Heritage Register Integrated Planning Act 1997 ss 3.2.3, 3.5.14, 4.1.52, 4.4.(5A) CASES Harderan Pty Ltd v Logan CC [1989] 1 QdR 524; Body Corporate for Kelly's Beach Resort v Burnett SC & Ors [2003] QPELR 614; Bon Accord v Brisbane CC & Ors (2008) 163 LGERA 288; Lane v Gatton SC [1988] QPLR 49; Esteedog Pty Ltd v Maroochy SC [1991] QPLR 7; Telstra Corporation Ltd v Pine Rivers SC [2000] QPELR 350; Leatch v DGNP & WS [1993] 81 LGRA 271; Mansell v Maroochy SC [2008] 122; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast CC (2007) QPELR 356; Aldi Stores v Redland CC [2009] QPEC 27; Weightman v Gold Coast CC (2003) 2 Qd R 441; Woolworths Ltd v Maryborough CC (2006) 1 Qd R 273; Westfield Management Ltd v Pine Rivers SC & Anor (2004) QPELR 337; Luke & Ors v Maroochy SC & Anor [2003] QPELR 447; SDW Projects Pty Ltd v Gold Coast CC & Anor [2007] QPELR 24; Koerner & Ors v Maroochy SC & Ors [2004] QPELR 211; Handley v Brisbane CC & Anor (2005) QPELR 80; Kotku Education & Welfare Society Inc v Brisbane CC & Ors [2005] QPELR 267; Vacuum Oil -- 2 of 68 -- 3 Company Pty Ltd v Ashfield Municipal Council [1956] LGRA8; Attorney General v Cooma Municipal Council [1962] LGRA 111; Broad v Brisbane CC & Anor [1986] 2 Qd R 317; Comkey Pty Ltd v Caboolture SC & Ors [2006] QPELR 399; Tadpoles Early Learning Centre v Noosa SC [2008] QPELR 487;Leda Holdings Pty Ltd v Caboolture SC & Ors [2006] QCA 271; Atkinson v Ipswich CC & Anor [2006] QPELR 550; Hedley Constructions Pty Ltd v Caboolture SC [2006] QPELR 46; Green v Brisbane CC & Anor [2005] QPELR 121; Gold Coast City Council v Hanwell Pty Ltd [2005] QPELR 198; Elborn v Esk SC & Ors [2008] QPELR 24; Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404; Craig Securities Pty Ltd v Brisbane City Council [2006] QPEC; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Rosswallmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; Retirement Properties of Australia v Maroochy Shire Council [2008] QPEC 61 COUNSEL: M Hinson SC and J D Houston for the Appellant T Trotter for the Respondent Ms S C Holland for the Co-Respondent SOLICITORS: Quinlan Miller & Treston for the Appellant Brisbane City Legal Practice for the Respondent Deakins for the Co-Respondent [1] The appeal is about a refusal by the respondent to approve a Development Application made by the appellant for the establishment of a café-restaurant-function room facility in an historic park in Brisbane, New Farm Park. The history of the park and the history of the process that led to the making of the Development Application are important in giving a context to the issues in the appeal. Judgment Index 1. The Issues in the Appeal Page 5 2. History of New Farm Park Page 5 3. The Tender and Negotiation Process: an overview Page 8 4. Background to the current proposal Page 12 5. The Proposed Development Page 13 6. The Development Application Page 15 7. The Decision Notice Page 15 8. Grounds of Refusal Page 15 9. Grounds of Appeal Page 16 -- 3 of 68 -- 4 10. Changes to the Development Application Page 16 11. The witnesses on the hearing of the appeal Page 16 12. The Evidence of Mr Boyle Page 17 13. The Town Planners Page 20 14. Planning Provisions Page 22 15. The Heritage Issues Page 26 16. The Amenity Issues (a) The evidence of co-respondent Mr Pellegrino Page 32 (b) Evidence of Other Neighbours Page 33 (c) Assessing the evidence of other neighbours Page 33 (d) The Noise Issues Page 34 (e) Noise management Plans: discussion Page 37 (f) The Traffic Issues Page 39 17. The arboreal issues Page 46 18. The tree pathogen issue Page 48 20. Construction of the Planning Scheme: discussion Page 52 21. Conflict with the Planning Scheme: discussion Page 53 22. The proper approach to resolving conflict Page 55 23. Codes and Planning Scheme DEO’s Page 55 24. Discussion: Is there conflict? Are there ‘sufficient grounds’? Page 57 26. Conclusion Page 60 27. Orders Page 60 Appendices 1. Extract of Grounds of Appeal. 2. "Management Strategy for Functions". -- 4 of 68 -- 5 The issues in the appeal [2] The issues in the appeal are those matters of disagreement identified in the joint reports of the experts, in the holistic context of the conduct of the appeal and the range of matters which properly flow from the matters of disagreement. In summary the issues are as follows, with some matters being common to a number of the issues: 1. Town Planning, which involves multiple issues including Parkland issues. 2. Heritage values, an amenity issue as much as an issue about heritage per se. It focuses on the scale and intensity of the proposed development but includes the issue of conflict with the Heritage Place Code. 3. The other amenity issues, which include noise issues as they affect the Dixon Street locality, generated from service and delivery vehicles, staff movements, patron movements and function operational noise. It also includes traffic issues including traffic flow and parking in or about Dixon Street, and the ring road within the park, the introduction of non-residential traffic in Dixon Street and its environs and an issue concerning the applicability of the parking requirements for the City Frame. 4. Arboreal issues, including the presence of the tree pathogen "phellinus noxious" and other risks to the health and stability of trees in the park in and around the lease area. 5. Construction of the planning scheme, issues of conflict, sufficient grounds and any application of the precautionary principle. History of New Farm Park [3] The history of New Farm Park is an important contextual theme in this appeal, because much of the evidence reflects the history of and the values ascribed to many aspects of the park. [4] New Farm Park is an historic and long established green space – created in 1914 - at the eastern end of Brunswick Street, New Farm, bordered by Brunswick Street, Sydney Street and the Brisbane River respectively on three sides and comprising an area of 15.0076h. It adjoins the Brisbane Powerhouse arts, dining and entertainment precinct and an urban renewal area of former industrial sites. It has significant cultural, heritage, historical, flora and community values. It is heritage listed by the Respondent. As at the date of the Development Application it was not heritage listed by the State, but it has since been entered on the Queensland Heritage Register, in December 2004. [5] The land use in and around New Farm Park has changed over a long period of time, from its early use as an aboriginal resource and subsequent use as a convict farm, as tenant farms (hence the name ‘New Farm’), a racecourse, the site of elite residences, some suburban sub-division and finally as park land. Those historical features arguably demonstrate the evolution of Queensland's history and the process of the creation of open spaces in Brisbane as the population of the area has grown over time. Redesigns of the park since its establishment arguably demonstrate changes in ‘parks philosophy’ and use over time, with a shift in emphasis from gentile Edwardian ornamental gardens and leisure activities, to barbecues and jogging. -- 5 of 68 -- 6 [6] Nevertheless, there are numerous aspects of the park that have longevity and have provided a continuum of the original and evolving values of the park, not the least being the flora, particularly the Moreton Bay fig trees. Many of the values were the subject of evidence in the hearing and I will refer to them in the course of this judgment. [7] New Farm Park was one of a number of parks or open spaces created by Brisbane City between 1913 and 1925. The original plantings of trees included over 100 jacarandas and poincianas, bougainvilleas and palms. Within a few years of its creation, the park had also been planted with rose bushes, fig trees and Chinese elms. [8] In 1915 a kiosk and a bandstand were constructed in the park. They were built in the Federation Queen Anne style, of timber with a Marseilles terracotta-tiled bell-cast hip roof. The park was one of the first new parks created by the Brisbane City Parks Superintendent, Henry Moore. The bandstand still exists. The kiosk burnt down in 2000. Until that event, the bandstand was one half of the last surviving kiosk- bandstand related group in Queensland. -- 6 of 68 -- 7 [9] From 1948 landscape architect Harry Oakman conducted the first major redesign of the park with a new rose garden layout being developed by 1953. He added new pedestrian paths inside the main drive, lookouts over the rose gardens and planted new trees and shrubs, while maintaining most of the original tree plantings. [10] A library was built in the park in 1975 (in the north east corner, on Sydney Street) despite local opposition to its construction and the loss of open space. From any planning and aesthetic point of view, that development was a gross error of judgment by those responsible for the decision. [11] The Queensland Conservation Council released a report in 1975 that apparently was critical of the condition of parks in Brisbane, one of the criticisms being that there were too many buildings, sports clubs, car parks and roads all of which were said to defeat the purpose of parks as open spaces. [12] Since a 1991 concept plan was developed for the park, jacarandas have been planted around the oval, a rain forest and a half basketball court have been established behind the library, more picnic tables and barbecues have been added near the river and a path was built between the kiosk site and the playground (between the croquet lawns and the drive ring road). The park has been linked to the Brisbane Powerhouse precinct, new entrances to the park have been made and existing entrances upgraded. Interpretative history signs have been added at places in the park. Two tennis courts and a shelter were built on one half of the croquet lawns after 2001. A new ferry terminal has been built. [13] The current park use includes both active and passive use. Active use ranges from sports use, such as soccer, football, croquet, tennis, basketball and boule, to social events and festivals, playground use, weddings, and cycling and jogging. More passive uses include picnics, strolls through the gardens, listening to brass bands every second Sunday, and tourists visiting to witness the jacarandas bloom. [14] The basic Edwardian layout of the park, designed by Henry Moore, remains largely intact today along with remnants from the late 1940s/early 1950s garden redesign undertaken by Harry Oakman. Various structures and rose gardens have also come and gone, but many of the earlier tree plantings remain. [15] New Farm Park currently contains a wide variety of trees, both mature and recent plantings, including jacarandas, poincianas, figs, palms, and coral trees. The central lawn within the jacaranda drive contains the remnants of the post-1948 rose garden arrangements, and an area of rain forest has been planted behind the library. In the shade of the trees near the kiosk site is an understorey of tropical plants, a character of park planting that is a distinct aspect of Brisbane's historic parks and large gardens. [16] In addition to the mature jacarandas and fig trees around the loop drive, other mature tree plantings of note include the various lines of palms, the weeping figs near the river, the banyan figs incorporated in the playground, the Queensland bottle trees shading the Brunswick Street barbecue area, poincianas along Brunswick Street and elsewhere, and remnants of Oakman's massed plantings of frangipanis and bauhinias to form groves in a "wild woodland" manner. -- 7 of 68 -- 8 New Farm Park and Locality The Tender and Negotiation Process: an overview [17] The current proposal for a new and larger kiosk was made in 2004. [18] The respondent originally invited tenders for the design, construction and operation of a replacement facility - café, kiosk, restaurant and function room. Two tenderers responded, including the appellant. This process has some relevance in the context of the changes in development proposals over time. That is the extent of relevance: it is the proposal under appeal that is for assessment, but the development history provides a contextual framework. [19] The respondent’s "tender Documents" (providing for a closing date of 22 June 2001) include a number of statements. Firstly, in the "Notice to Tenderers": In Clause 1: "Brisbane is a city where outdoor living and dining can be enjoyed all year round. Nowhere could these activities be better realised than in New Farm Park, a place where park land space, greenery and visual delight combine uniquely to offer the pleasure of relaxation in natural surroundings. This project presents an opportunity for the establishment and operation of a restaurant/kiosk type facility within the park. The Council is seeking Tenders for: -- 8 of 68 -- 9 (i) the Design and Construction of a Restaurant within New Farm Park in accordance with AS 4300-1995…"; In Clause 4: "The restaurant/kiosk facility will provide a commercial opportunity to the successful tenderer…”; Secondly, in the Functional Specification Cl 2 two building options were provided: "(a) a reconstruction of the original kiosk building on the original kiosk building site at New Farm Park with the addition of a 100 seat function room, or (b) construction of a contemporary restaurant/kiosk building on the site of the proposed lease with provision for functions requiring 100 seats"; and The proposal is to include an indoor dining space (new function room in the case of a proposal under item 2 (a) for 100 people seated (nominally) for functions). Outdoor dining capacity is to be 100 seated. This would ideally allow for separate café and take-away eating areas all utilising existing shade"; and [t]he proposal is to show how all contemporary building proposed respects the heritage nature of the park and the kiosk including the sub-tropical climate of Brisbane. The building should be understated and modest in proportions. The building should not be air conditioned …" [20] The specifications required connection between the place and the park, ability for functions to easily spill out onto the open areas of the proposed lease area, an improved presentation of the kiosk from Dixon Street, noting that it was currently a "back of house" appearance, and recognising the plans to upgrade the Dixon Street entrance and the residential redevelopment, and that the building entrance be easily assessable from Dixon Street, the park ring road and the children's playground. [21] However, the respondent resolved to reject the tender process and to negotiate with the appellant. In October 2002 the respondent resolved a contract with the appellant by way of a lease to design, construct and operate a café, kiosk, restaurant and function room, without seeking competitive bids from industry, pursuant to s 46.2 City of Brisbane Act 1924. On 15 October 2002 the respondent resolved in favour of the Blue Sky Company Pty Ltd on the basis of an offer to provide new premises of 200m2 size. [22] The resolution of the respondent noted that "improvements to the lease access from Dixon Street have been requested by the applicant." I note that Mr Boyle (a Director and the principal of the appellant) said in his statement of evidence that this was not a request but simply an acceptance of the respondent's plans to do such work, as had been referred to in the tender documents. [23] In the "Proposal in Brief" in the introduction to the development application, prepared by the respondent for the respondent and the appellant, the proposal is described, so far as is relevant, as follows: -- 9 of 68 -- 10 "This report describes the proposed development, making comparison with the original kiosk and discusses the impact on New Farm Park and the locality. The building for the Summerhouse is designed in a modern lightweight, open style that sits lightly on the ground nestled amongst mature fig trees so that the trees and parkland remain dominant in the landscape. The new Summerhouse will operate similarly to the operation of the pre- fire kiosk. The area of each component is similar to that of the pre-fire facility. The difference lies in the size of the kitchen, which is enlarged to cater for functions to operate at the same time as the restaurant/café. Previously the kitchen was too small to cater for both areas concurrently. The building's foundation will be situated clear of an Energex easement that traverses the development site and proposed lease area. Although the proposed redevelopment is principally the same as the pre- fire facility in its operation, it has been determined that the changes are sufficient to be defined as a Material Change of Use. Therefore, pursuant to the New Farm & Teneriffe Hill Local Plan the redevelopment requires development approval with Impact Assessment. Subdivision by lease requires Code Assessment." [24] Under the heading "1.2.2 - Land Use" the application contains the following statement: "The area surrounding New Farm Park has been significantly affected by urban renewal with new medium density residential complexes becoming increasingly available …, the establishment of the Brisbane Powerhouse Centre for the Live Arts and the on-going redevelopment of the CSR site. This has further emphasised New Farm as a mixed-use environment with the park as a key focus as well as a regional recreation and cultural destination … The experience that this provides contributes towards a sense of community and vibrant cosmopolitan atmosphere within the area. The green space provided by the park and river views further contributes to a high visual amenity and community focus." [25] The primary vehicle access was described as the Brunswick Street entrance. The Dixon Street entrance was a secondary access. In their report "Vehicle & Pedestrian (Internal Site Movement)" is described as follows: "The ring road is used as a major movement thoroughfare through the park and is shared by both vehicular and pedestrian traffic. Car parking spaces are designated within the park along the ring road with 51 marked spaces and 9 disabled spaces. Spaces are also available along the sides of the ring road. While these spaces are not formally marked it provides sufficient space for approximately 175 vehicles, making a total capacity of approximately 226 spaces. The ring road and car parking areas are made to a suitable urban standard and are well shaded and screened from neighbouring residential areas by the Park's landscaping. -- 10 of 68 -- 11 In addition, a vehicular access point off Dixon Street services not only the Summerhouse but also the adjoining croquet lawns and tennis courts. This access is constructed with a compacted gravel surface and was formed in 1914 in time for the construction of the kiosk …" [26] In City Plan 2000 the components of the original proposal are described as follows: • "Kiosk in a Park: A light structure used for selling food, drinks, souvenirs, fishing bait and other small item convenience goods, and hiring equipment such as bicycles, canoes, fishing rods or binoculars." (Emphasis by the author of the report). • "Restaurant: A use of premises for providing meals or light refreshments on a regular basis to members of the public for consumption on or off the site, e.g. Café, restaurant, theatre restaurant, bistro, milk bar, coffee shop, tea room, takeaway outlet or fast food outlet." (Emphasis by the author of the report). • "Convention Centre: A use of premises for conferences, public or community group gatherings, private functions, trade exhibitions/displays, and associated entertainment and catering, and occasional indoor sporting events." (Emphases made by the author of the report). [27] The author of the report was the City Design Department. The submission of a joint Development Application was at the department's suggestion and arose from the respondent's decision that a Development Application would be necessary. Mr Boyle said in his statement of evidence that the development application was lodged well after its completion because he wanted to finalise the lease arrangements with the respondent. A lease was not subsequently executed. Whether there is any enforceable agreement between the appellant and the respondent is not a matter for me to consider or to determine in these proceedings. [28] The report refers to "2.3.2 - Design Description: Integration with Surroundings" in the following terms: "The design of the Summerhouse will provide easy access to a kiosk style refreshment outlet for park visitors in addition to restaurant/café and private function room facilities. To maintain the local amenity and focus of the park as public open space adjoining the Brisbane River, a low impact, unobtrusive building design that sympathetically inter-relates park and restaurant activities has been created. This has been achieved by: • Limiting the proposed built form to a similar scale and footprint size to the original kiosk area and not adding to existing vehicle oriented spaces. • Locating the proposed building in a similar location to the original kiosk within an existing building envelope between the adjoining public toilets and Merthyr Croquet Club. • Using an open plan and transparent design that combines high cascading skillion roofs, fully translucent glass walls, light weight materials and a combination of semi and unenclosed spaces. -- 11 of 68 -- 12 • Retaining and building between significant trees and incorporating additional landscaping to further blend the building into his surroundings and mitigate noise impacts. • Maintaining an unenclosed open design to the dining area over the electrical easement to provide easy access. These design outcomes ensure that the proposal is appropriate for the parkland/river setting that the built form does not visually dominate the surrounding area or physically reduce the availability of open space. Instead it enables it to have a more integrated presence within the parkland. It ensures that the recreational and cultural values of park and river are maximised." [29] The report describes the "Building Components" in the following terms: "The proposed design for the new Summerhouse consists of the following components: Café, roofed external dining area, open external dining area, takeaway servery, function room, kitchen and service facilities, and service yard." [30] The Development Application was made by the appellant and the respondent after the appellant (then known as Blue Sky Company Pty Ltd) won the right to develop the lease sub division, intended to be the subject of a 30 year lease. Background to the current proposal [31] The original facility (a kiosk - "the Summerhouse") had been opened in 1914-15 and was destroyed by fire on 11 September 2000. It was replaced by a temporary facility in November 2000, subject to an agreement separate from the original lease agreement. Whilst referred to as a "kiosk" in the 1987 Town Plan and City Plan 2000, the original facility operated beyond the more modest activity of a "kiosk": "food and refreshments have been served for consumption elsewhere in the park and for consumption at the kiosk, either as casual dining or ceremonial occasions." (See exhibit 1 at page 10.) [32] The level of activity varied, depending on the business plans and success and successful operators. Prior to the fire in 2000, the Blue Sky Company Pty Ltd operated with the following components: kiosk building (kitchen, servery and indoors dining area), outdoors dining area, marquee, public toilets & metal storage shed. The latter three components survived the fire. [33] The temporary facility was described as operating from (exhibit 1 page 16): • A small "demountable" building used as a combined kitchen and servery (35 m2 ). • A new larger outdoors dining area, (635 m2 ) to replace the indoors dining area lost within the kiosk building and original alfresco dining area which has been sealed off. • The marquee (135 m2 ) spared from the fire which continues to be used for private functions and for general dining use during periods of rain. • The public toilets continue to be shared by the restaurant and park users. -- 12 of 68 -- 13 • One of the metal storage shed (23 m2 ) remains in use in its original location. • The park's public toilets (57 m2 ). • A nearby picnic shelter that has been enclosed and is currently used as an additional storage shed (52 m2 ). [34] Prior to the fire the kiosk operated 9 am - 5 pm Monday and Tuesday, 9 am - 11.30 pm Wednesday to Friday and 8 am - 11.30 pm Saturday and Sunday. [35] Entertainment was described as piped music and for functions, specialty music such as string quartet, DJ and live bands. [36] Servicing was described as follows: "Servicing deliveries and waste removal was conducted from the ring road and from the rear of the kiosk building via the vehicle access via Dixon Street." (See exhibit 1 page 17). [37] The respondent resolved to lease an area in the vicinity of the original kiosk (now demolished and the site having been cleared and filled), to the appellant to re-establish the Summerhouse. The Proposed Development [38] The proposed development is to be a purpose built facility providing a takeaway kiosk located at the front of the leased area and to open on weekends and school holidays to supplement other services. The takeaway service at other times is proposed to operate from elsewhere in the facility. It is intended to be accessible to park patrons without the need to enter the rest of the facility. The facility is to have a deck for casual dining or access to the kiosk and other areas with a capacity to seat up to 120 patrons. It is said to be similar to the capacity of the paved outdoor dining area (excluding the marquee) available in the facility operating from the Summerhouse. There is also a café restaurant to provide dining indoors with the servery forming part of the Bar. It is proposed to have a capacity for up to 80 people and to be open for breakfast, lunch and dinner. It has a dual capacity to function as a café during the day and a restaurant at night. A function room has been designed to accommodate 100 patrons seated or 140 standing up. It is designed to be capable of being fully enclosed and climate controlled. The kitchen and toilets are part of the facility so that in so far as toilet facilities are concerned the proposal is self-contained. Those facilities are situated between the Dixon Street area and the proposed function room. [39] The design is said to take into account existing trees in and around the lease area and an Energex power easement which runs across the lease area and the large fig trees are to be an integral part of the design of the deck and to reinforce the connection between the café and the park. -- 13 of 68 -- 14 Design Development over time Original Layout Layout Post-Fire 2000 Proposed Layout 2003 Current Proposal -- 14 of 68 -- 15 The Development Application [40] A Development Application dated in March 2003 was made on about 11 December 2003 jointly by the appellant and the respondent for a Development Permit for a Material Change of Use, Reconfiguring a Lot (a lease sub-division) and a Preliminary Approval for Carrying out Building Work ("the application") on a lease area of 1,753m², being part of land described as Lot 102/SP102967 Parish of North Brisbane, 15.1075h situated at 137 Sydney Street, New Farm (“New Farm Park”), which is included in the "Parkland Area" classification in Brisbane City Plan 2000. The Decision Notice [41] The Development Application was impact assessable pursuant to s 3.2.3 of the Integrated Planning Act 1997 ("the Act"). By letter dated 31 May 2004 the respondent notified the appellant of the decision to refuse the application (“the Decision Notice”). [42] The Decision Notice contends that: • The types of uses proposed; and • The intended scale of the development, conflict with the various components of the Planning Scheme in its full context and that its location, design and impacts are not appropriate or acceptable." [43] It is in this somewhat unusual context that the evidence in respect of the Development Application in this appeal falls to be assessed. It seems to me that the respondent, whilst an advocate of a development that incorporated more than just a simple refreshment "point of sale and service" but that nevertheless reflected the critical features of the type of facility and service that had previously had existed prior to 2000, found that the proposed development was too intensive and too expansive for New Farm Park. Hence it seems that the co-proponent of a development application proposal has become the opponent of what the application had proposed. Grounds of Refusal [44] The grounds for refusal as set out in the Decision Notice were:- "The council refused the application because the types of uses proposed, exacerbated by the intended scale of development, are contrary to: (a) The intent of the Strategic Plan in relation to the Brisbane Green Space System, the Parkland Area and the Park's Precinct of the New Farm and Teneriffe Hill Local Plan; and (b) The purpose and performance criteria of the Park Code. Furthermore, the application is not demonstrated by reference to the matters prescribed in City Plan (Chapter 3, Section 2.5.2 page 6) that despite the conflict with the intent of the City Plan, the location, design and impacts of this specific proposal are appropriate or acceptable." -- 15 of 68 -- 16 Grounds of Appeal [45] An extract of the relevant grounds of appeal are at Appendix 1 to this Judgment:- Changes to the Development Application [46] Changes to the Development Application were approved by order of Judge Brabazon QC on 02 April 2008 as minor changes pursuant to s.4.1.52(2)(b) of the Act. The proposed development is now in accordance with plans described in an affidavit of Mr Cook filed on 26 March 2008. The changes mainly addressed concerns about the potential impact of the built form of the proposed development on existing trees adjacent to the building envelope; and added five on-site car parking spaces. [47] Mediations were conducted post-April 2008. Further refinement of the plans, to reduce the risk of impact of the proposed development on the root systems of existing trees adjacent to the development were proposed in a further affidavit of Mr Cook filed on 20 November 2009. The parties concurred in proceeding on the basis of the plans as described in the latter affidavit. The witnesses on the hearing of the appeal [48] Affidavit evidence was tendered on behalf of the appellant’s principal Mr Boyle, the Co-Respondent Mr Pellegrino and occupants of neighbouring residential properties Mrs Bickle, Mr Flaskas, Mr Lauritz and Ms McInally. Mr Boyle was cross-examined. [49] The expert witnesses provided reports and testimonial evidence in six areas of speciality: Town Planning - ƒ Mr Kay (Appellant) ƒ Mr Vann (Respondent) ƒ Mr Evans (Co-Respondent) ƒ (Joint Reports April 2008 and February 2009) Amenity issues (a) Noise Issues – ƒ Mr Rumble (Appellant) ƒ Mr Kamst (Respondent) ƒ Mr King (Co-Respondent) ƒ (Joint Reports October 2006, February 2009, March 2009 and August 2009) (b) Traffic Issues – ƒ Mr Kleimeyer (Appellant) -- 16 of 68 -- 17 ƒ Mr Beard (Respondent) ƒ Mr Holland (Co-Respondent) ƒ (Joint Reports November 2006 and February 2009) (c) Heritage Issues – ƒ Mr Riddel (Appellant) ƒ Mr Scott (Respondent) ƒ (Joint Reports November 2007 and September 2008) Arboreal Issues – ƒ Mr Bishop (Appellant) ƒ Mr Hobbs (Respondent) ƒ (Joint Reports March 2009, July 2009 and September 2009) Tree Pathogen Issues – ƒ Dr Galea (Appellant) – two Reports. ƒ (Joint Report September 2009) The evidence of Mr Boyle [50] Mr Boyle is a Director and the principal of the applicant. He has had a long career in the hospitality industry. The details are appended to his statement (exhibit 10). He made observations about a number of historical and business planning matters: ƒ history of the Summerhouse, so far as he knew about it. ƒ negotiations with the respondent about the initial lease of the Summerhouse site. ƒ establishment of his company. ƒ tender process and lease negotiations that followed the September 2000 fire. ƒ history, according to his knowledge, of the Dixon Street "cul de sac" upgrade. ƒ lodgement of the joint Development Application and his contact with the respondent until the issue by the respondent of the Decision Notice. ƒ operation of the temporary facility following the September 2000 fire. ƒ average weekly/daily business projections. ƒ business projections into the future. The weekly projections of patronage logically, it seems to me, start from a base lower than the peak in late 2000, growing through years 1, 5 and 10 from 2870, 3530 to 4035. -- 17 of 68 -- 18 [51] The tender and lease negotiations are referred to in an historical context. That is the only relevance of them. I have, of course, referred to them in a contextual sense earlier in the judgment. However, I regard any matters involving the tender process and the lease, beyond that historical context, to be outside my jurisdiction to determine in this Court: Harderan v Logan City Council [1989] 1 Qd R 524; Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404. [52] The early operational arrangements for the Summerhouse were such that in early 2000 there were about 2,000 to 2,500 patrons per week (averaged over time) and a temporary marquee was erected for individual functions as they occurred. By late 2000 (before the Summerhouse fire), the patronage had increased to about 3,000 per week, including those attending functions and a permanent marquee had been erected. By that time, the operating hours were Sunday 7 a.m. to 4 p.m., Monday 8 a.m. to 4 p.m., Tuesday to Thursday 8 a.m. to 11 p.m., Friday 8 a.m. to Midnight and Saturday, 7 a.m. to Midnight. The Brunswick Street gates were opened and closed by the respondent but Mr Boyle said he also had possession of a key for that purpose. After the September 2000 fire, the temporary facility was down-sized due to operational difficulties and eventually the take-away kiosk was all that remained. [53] The proposed operational hours, according to Mr Boyle, were stated to be ‘maximum’ hours of opening - subject to demand; Sunday to Thursday 8 a.m. to 11 p.m. and Friday and Saturday 8 a.m. to Midnight. Mr Boyle considered that staff would arrive or depart about an hour before opening or an hour after closing, other than those staff that might arrive or depart for operational reasons later or earlier respectively than those times. [54] Mr Boyle explained some misinterpretations in the Development Application regarding patron numbers, which I infer has arisen out of some misunderstanding what the patron numbers and their potential location within the premises actually permit. One example was a total of ‘510’ patrons in a Table at paragraph 2.8.3 ‘operational capacity’ in exhibit 1, that Mr Boyle described as a ‘misconception’. There may be some merit in that description because the words introducing the Table refer to concurrent operations in the several areas of the premises in the context of a ‘theoretical maximum capacity’ of patrons. He said that high traffic areas were not suited to the provision of seating. Hence his figures for seating being less than that estimated by Mr Beard. There had also been a change in physical dimension of the proposed premises over time. [55] He said that the proposal (so far as it was proposed at the time of the trial) was for two areas of the café, deck and function room to be operating at any one time. The numbers of patrons were limited to the maximum serving capacity of the kitchen but within each of those three areas were limited to a maximum of 80 in the café, 120 on the deck and 100 in the function room, including the veranda. In each case all patrons were counted as being seated). The kitchen capacity was for a maximum of 180 "plated" meal services. Where a function might be held with persons standing, other than being seated, the maximum number was 140 patrons which was an equivalent of 100 "plated" meal services. His expectation of the primary use of the function facility, which he said was projected to be 10% – 15% of his core business, was weddings, anniversary-type events and cocktail parties. [56] Mr Boyle referred to the seasonal fluctuations in patronage, winter being the low season and summer (especially in the weeks leading up to Christmas) the peak season. Sunday (followed by Saturday) was the busiest trading day of the week. I noted that -- 18 of 68 -- 19 this was contrary to the evidence of Mr Kleimeyer who regarded summer and winter as being equal. Mr Boyle said that the proposal was for one function per day (including midweek lunches), but inferentially perhaps including or substituting an evening function on the Friday, Saturday and Sunday, as I understand the evidence. [57] So far as access to the site is concerned, the proposal was to limit the Dixon Street access to service vehicles, staff and special circumstances, such as arrival and departure of a bridal party. Historically Dixon Street had been used for service vehicle access to the facility, but ceased in about early 2005 when the marquee and the kitchen were removed. [58] Mr Boyle described in his statement the "Management Strategy for Functions" document prepared with the input of Mr Kleimeyer. In his testimony, he agreed that the function facility would cater for all sections of the community, not just wedding parties. The object of moderating the behaviour of patrons involved the use of staff or security persons. The strategy of ‘escorting’ patrons meant to walk them to the lease boundary. Mr Boyle did not seem to me to have any convincing response to the obvious questions of how the moderation strategy was to work for patrons unwilling to comply with direction about their behaviour or be effective once the patrons had left the lease area, those questions having been asked in the context of the Dixon Street area as much as the ring road in the park. [59] Mr Boyle also referred in his statement to a number of the contentious issues that have arisen out of differing opinions expressed by expert witnesses. So far as is relevant he referred to the cul de sac in Dixon Street and his view that the respondent was obliged to construct it; and the gates at Brunswick Street, which he says historically were opened and closed in a way that facilitated and supported the trading hours of the business and that he expected that would continue. He said that in his experience most people used the gates and that sometimes the gates were opened early or not closed at all. He denied a suggestion that the gate key he had in his possession was for his use only and not for patron access and egress. [60] In so far as the floor area and patron numbers were concerned, the numbers were controlled by the kitchen operational capacity and by other operational needs, the implication being that overcrowding is contrary to good business practice and the necessity for staff movement and greeting of patrons tended against admitting patron numbers that exceeded kitchen operational capacity. [61] He said that the proposed taxi arrangements had been put in place in 1999 (including taxis use at late hours) but had not been utilised since the permanent marquee was removed by the respondent. Taxis in his experience used the Brunswick Street gates and access was via the ring road. The business proposal was that taxis would be directed to use that route and there was an expectation that the restaurant (that is, the business) would be the primary point of contact for patrons requiring taxis. Hence the use of the Brunswick Street gate and ring road by taxis could be controlled. Of course, this objective assumes that taxi drivers would follow directions and that the majority of patrons would use staff to order taxis. [62] Mr Boyle agreed that motor vehicle use far outweighed public transport use. The transport Survey was limited because it did not include the influence of variable weather. The residential locality of the 56 survey respondents showed that about 46% lived in outer suburbs of Brisbane or outside Brisbane. In so far as parking was -- 19 of 68 -- 20 concerned, he agreed that he could not influence the behaviour of drivers in respect of their choice of parking. The Town Planners [63] The town planners, Mr Kay, Mr Vann and Mr Evans identified a number of issues in dispute: 1. Compliance with the relevant City Plan provisions. 2. The scale of the proposed development. 3. Hours of operation and consequent impacts on amenity. 4. Traffic issues related to parking and parking provision and service arrangements. 5. Impact on significant trees and their contribution to the cultural heritage significance of New Farm Park. [64] In so far as the relevant City Plan provisions were concerned, the town planners identified the strategic plan, parkland area, chapter 3 and the issue of whether the proposal was generally an inappropriate impact accessible development, the New Farm and Teneriffe Hill Local Plan, planning goals and the Park Code. They agreed that a commercial intrusion of the nature of the proposed development was not generally intended, except that a kiosk was envisaged in larger parks (such as New Farm Park) but on a very small scale. [65] They considered that a balance was required against the particular nature and role of a park serving a city wide function (such as New Farm Park) and against the historical use of the site for a kiosk/café and related purposes. [66] They agreed that activities in New Farm Park are not to be inconsistent with its predominant uses (park and recreational purposes) and are not to have unacceptable impacts on the amenity of the locality. [67] There was no inconsistency with the Parkland Desired Environmental Outcome 1; the New Farm and Teneriffe Hill Local Plan reinforced the themes considered by them (and referred to above by me) and recognised that a park such as New Farm Park had a significant role for visitors as well as for local residents; the Park Code in so far as AS- A2 was concerned was not complied with (because of the scale and nature of the facilities), although they differed as to the extent of this non-compliance; and New Farm Park Plan 2001 was not relevant to the Acceptable Solutions, but envisaged rebuilding of the café/kiosk and outdoor dining area, although not the function centre aspect. [68] The scale of the proposed development was beyond that which the City Plan generally envisaged in the Parkland Area. Multiple functions (for example, two weddings) utilising the available capacity could be held at the one time. [69] The originally proposed long hours of operation would have unreasonable impacts on nearby residents, particularly in Dixon Street and primarily in respect of the level of noise generated. They considered that there was likely to be some use of Dixon Street and those parts of the park around the facility by patrons and staff. -- 20 of 68 -- 21 [70] Parking was noted to be an issue primarily related to peak periods. [71] Their view was that City Plan intended to protect the contribution of the trees to the heritage values of the park and any significant impact on those issues by the proposal would be inappropriate. [72] Mr Kay did not agree with the view expressed by Mr Vann that the proposed development was of a "significant scale" or "higher intensity". He considered New Farm Park to be "a metropolitan park". Mr Evans had become involved after the initial meetings between Mr Vann and Mr Kay, but the issues in dispute remained the same. [73] Mr Kay considered that even though there was some non-compliance with the provisions of the City Plan, the proposal was nevertheless acceptable. He considered that the facility was a low scale replacement of its predecessor, in the context of the park as a whole. He agreed that there had not been approvals of this nature under City Plan 2000, the Roma Street Parklands Restaurant being state government approved and not requiring assessment under the City Plan, but nor had there been applications for such approvals. [74] Mr Kay considered New Farm Park to be major inner city parkland and it was designated as a Parkland Area under the City Plan. It was within the Brisbane Green Space System (map C of the Strategic Plan). He expressed the view that so far as the Powerhouse Complex to the northeast of the park, where there were live entertainment facilities and two restaurants, "for all intents and purposes, the Powerhouse Complex extends the range of recreational experiences offered in their New Farm locale". He agreed that the proposed development was adjacent to a Medium Density Residential Area (to the north and northeast) that had recently built houses and multi unit dwellings. [75] So far as scale was concerned, he said in evidence that the park was a metropolitan attraction and had diverse community, recreational and social use. He referred to the City Botanical Gardens, Mount Cootha Botanical Gardens and Roma Street Parklands as having restaurants. He considered the scale was small in terms of the parks overall area. [76] Mr Vann considered that the use of New Farm Park was primarily envisaged for its core park activities in a planning context, that is, in formal recreation and protection of heritage values. [77] He considered that there was conflict with the City Plan in respect of DEO 2 (commercial activities of significant scale in the park) and DEO 3 (restaurant and function centre use) which he considered did not constitute "informal and limited formal recreational, cultural and educational activity; he did not consider that the proposed development met the A5 or PC P2 (scale) requirement of the Park Code in respect of impacts of scale, cultural value, landscape biodiversity and commerciality. [78] He identified Planning Impact Assessable Criteria as being character, scale and intensity (noise, traffic and landscape were for others to determine). So far as scale was concerned, he considered the proposed development introduced "substantial new and intensive commercial activity in the park". He agreed that a kiosk was a commercial activity (in the context of DEO 2) but it was a matter of scale and -- 21 of 68 -- 22 "destination" use. He agreed that any change created impact but that it was a matter of whether it was impact significantly and adverse or unreasonable. [79] Mr Evans approached the matter from the view that there were several restaurants in the area or precinct. He questioned whether the proposed development was envisaged in the "recreational intent" of the park purpose. He considered there was conflict with the DEO’s 2 and 3 and with PC P2 of the Park Code. The proposed development did not promote the park's values in the Park Code and did not meet the intent of DEO 2: it had a commercial focus of a restaurant and function room and was not in his view, recreational. He did not consider that the maintenance and promotion, with minimal impacts, of parkland quality was met and that DEO 3 was not intended to provide the management and litigation of uses such as proposed. The scale of the proposed development he considered was beyond expectation. It was more likely to draw people for a facility focused activity rather than for a park associated activity. Planning Provisions [80] The town planners agreed on the relevant provisions of City Plan 2000: • Parkland Area DEO2 • Parkland Area DEO3 • Park Code Purpose and P2 • Section 25.2 of Chapter 3 City Plan [81] The town planners also agreed that the key tests to be drawn from City Plan in relation to the proposal are: • That activities in New Farm Park are not be inconsistent with its predominant uses particularly for park and recreation purposes; • That activities in New Farm Park are not to have any unacceptable impacts on the amenity of the locality. [82] The context in which the key tests are to be applied are, in essence, that the Planning Scheme intend intrusions of a commercial nature in parks, with the exception that a kiosk at a very small scale is envisaged in parks such as New Farm Park; that a balance should be struck between that intention and the particular circumstances of parks serving a city wide function, New Farm Park being within that categorisation; and that there be further balance against the historical use of the site in question for a kiosk or related purpose. [83] New Farm Park is a metropolitan park with a general use for the community providing a recreational and social facility. The history of the park is well appreciated from the references made in the course of this judgment and the historical use of the site of the proposed development has also been well canvassed. [84] Strategy 3.2.2.2 of City Plan 2000 requires the respondent to: -- 22 of 68 -- 23 "Ensure a continuous supply and cater for a balanced range of community facilities, cultural, recreational and sporting opportunities, natural environments and attractive landscapes, to meet community needs through: (c) facilities and infrastructure - high quality park facilities that respect each park's character and are appropriate for potential users …" [85] The respondent has submitted that it is not possible to conclude that the proposed development in any way "respects the park character of New Farm Park". [86] The Parkland Area: the park is within the Parkland Area classification and in assessing generally inappropriate impact assessable development, the proposal needs to show that it accords with the reasonable expectations and DEO's for the area in which the land is classified. [87] The intent of Parkland Area: "[I]s for informal, open air recreation and outdoor cultural and educational activities, and may provide opportunities for informal sports or other events on a casual basis. Activities requiring permanent facilities such as youth clubs, may also be accommodated in this Area, but only where they are located on large tracts of land and the activity occupies only a small part of the surrounding parkland. The land is generally publicly owned." [88] The parkland DEO's are also critical: they are to provide "visual relief from the built environment and a retreat from developed areas"; and to serve "the recreational needs of the City's residents, workers and visitors on local, district and City wide scales"; and to provide "a wide range of informal and limited formal recreational, cultural and educational activities … Qualities valued by residents are to be maintained and undesirable impacts on surrounding land uses are minimised by appropriate location, design and management …" and adverse impacts on biodiversity values are minimised. [89] Section 2.5.2 provides that: "In assessing generally inappropriate impact assessable development … the proposal will need to demonstrate that: ƒ The character, location, sitting, bulk, scale, shape, size, height, density, design, external appearance of the proposal accords with the reasonable expectations and DEOs for the Area in which the land is classified. ƒ The proposal has a positive impact on the landscape, senior quality and streetscape of the locality. ƒ The proposal does not detract from the appearance, environment or amenity of the locality. These issues may relate to issues such as hours of operation, display of goods or release of any contaminate. ƒ The proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of: -- 23 of 68 -- 24 - on site and on-street parking - number and type of vehicle movements - manner of access to the site ƒ The capacity of the road system and the locality is suitable for the proposed activity. ƒ The site has a reasonable level of accessibility by all modes of transport, including pedestrian, cyclists, public transport and private vehicular access, that is appropriate to the proposed activity. ƒ Negative community impacts are not generated, including impacts on: - community identity, cohesion and cultural practices - community health and wellbeing - access to community services and facilities would require to support need - personal safety - housing choice; mix, cost and location - access to an employment and education." [90] The respondent submitted that with the possible exception of the capacity of the road system and the level of accessibility by all modes of transport, the proposal would otherwise seriously offend all of the other issues identified in s 2.5.2. [91] The New Farm and Teneriffe Hill Local Plan: this plan is part of City Plan 2000 and provides more focus upon land use and built form outcomes in the locality. New Farm Park is designated as a "landmark" and there is a desire to encourage the retention protection enhancement of such a designated area. Similarly, historical and cultural significance is a factor and specifically the Parks Precinct (s 3.5) provides that: "It is intended that parks in this precinct (New Farm Park, Teneriffe Park, Merthyr Park and Wilson Outlook Park) be retained and enhanced as important public open space facilities for both active and passive recreation. The Merthyr Bowls Club and the New Farm Bowls Club are to be preserved as fundamental elements of the open space system serving the needs of the local community. Proposals for development need to demonstrate compatibility with existing open space and recreational uses, serving local needs and public function." [92] The respondent submitted that the proposed development was at odds with the local plan. -- 24 of 68 -- 25 [93] The Park Code defines "kiosk" as "a light structure used for selling food, drinks, souvenirs, fishing bait and other small item convenience goods and for hiring equipment such as bicycles, canoes, fishing rods or binoculars." [94] The purpose of the Code is to: ƒ "Ensure the development of parks makes a positive contribution to the community, the environment and the amenity of the area. ƒ Ensure the development of parks does not cause a negative impact on the values of parks and the amenity of surrounding areas. ƒ Ensure the development in parks is appropriate to a park setting. ƒ Ensure that development does not alienate parkland from use by the general public." [95] The respondent says that the proposal does not maximise any park value and that it in fact degrades many other values. [96] In assessing Performance Criteria and Acceptable Solutions, the connection between the two should to be kept in mind: Craig Securities Pty Ltd v Brisbane City Council [2006] QPEC. It is said that an ‘holistic’ (my expression) approach to afford an understanding of the proper intent of the performance criteria is required (at [21] and [22]). The acceptable solutions to performance criteria do not envisage a building or structure of the nature of that proposed in this development. [97] The respondent in oral submissions contended that past use of the site was irrelevant in assessing the proposed development. The appellant in oral submissions contended to the contrary and said that historic use was analogous to similar use and was a relevant consideration. I was referred to Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271, particularly at [29] to [31], although the past use was expressed in terms of previous ‘unlawful use’. [98] I do not think that the town planning issues can be determined without reference to the past use of the site. Indeed, I have already referred to the ‘contextual development’ process and to the history of New Farm Park as relevant matters in providing a framework or context for the assessment in this appeal. [99] However, the range of activity on the site in the Summerhouse, as well patronised as it was, is not in my view comparable to the size, scale and intensity of use of the permanent facility that is envisaged in the proposal. The appellant submitted that the proposal was not inconsistent with DEO 1 and that there was no planning evidence to the contrary; and that the scale of the proposal was determined by the respondent in its tender documents. The respondent’s view may have changed over time. That is not a relevant matter in my opinion. The proposed development must be assessed against the Planning Scheme as a whole. [100] The proposed development, by reason of its size, scale and intensity, is not appropriate for this park setting. It may well be the case that a facility scaled down and without a permanent function room that was designed to service the park user rather than being itself a destination in the park would pass muster. This development proposal does not. In my view it would have a negative impact on the core values of New Farm Park. -- 25 of 68 -- 26 The Heritage Issues [101] The heritage value of New Farm Park is a significant matter and was addressed by two heritage architects, Mr Riddel and Mr Scott. The experts provided a joint report dated 28 November 2007. The park is heritage listed by the respondent and was listed on the Queensland Heritage Register in 2004. [102] Both experts agreed that the proposed building should not damage any significant nearby streets if it is to have no negative impact on the heritage values of New Farm Park (including the construction phase and the operation of the facility). However, they did not agree about the impacts that increased intensity of use in the proposed development would have on the heritage values of the park. Mr Scott considered that "a major shift between the pre-fire use of the kiosk and temporary marquees for functions and the current proposal, was the shift from use of temporary structures to permanent structures. The implication of the previous temporary structures was that they could be removed to re-instate the area of the park they occupied." He considered that this "shift" damaged the cultural significance of the park. Mr Riddel considered that the proposal sought to improve the existing facilities by having adequate kitchens and food preparation areas as well as its own toilets and "the design responded to the BCC requirements as well as to the trees on its site. The lease area was defined and the numbers of users identified." He considered the intensity of the development was consistent with similar facilities in well used parks "such as the Melbourne botanical gardens" and "did not threaten the cultural significance of the park." [103] They considered the tree numbers and threats to trees in a separate joint report of 12 September 2008. With respect to palm streets in the immediate vicinity of the lease area there were no significant impacts by removal and replacement. The fig tree (ficus elastica) identified in the documents as "T1" was diseased and needed to be removed and the roots and ground fungus treated. A tree of this or a similar species should be planted to replace it. [104] The significance of the trees as part of the cultural heritage of the park was the subject of more detailed evidence from the aborealists and from the plant pathogen expert. There was a meeting between the heritage architects and the aborealists who were at that time engaged by the parties on 22 October 2008. Amongst the issues canvassed were the positioning of the buildings in the proposed development amongst the trees, the management of rainwater caught by the roofs on the site, the low roof reflectivity of the material proposed for roofing, the potential impact of decking under T4 and T5 and management of chemical residue run-off onto the ground and the impact of a proposed cul-de-sac at the end of Dixon Street upon T39 and T40. [105] Mr Riddel in his report referred to there being similar facilities situated in city parks "all over the country. Examples may be seen in the Brisbane botanical gardens and Melbourne botanical gardens, both of which are widely used for functions of all kinds." He expressed the opinion that it was common for food and beverage facilities to be provided for park users. The similar uses in the other locations to which he referred he considered did not have a negative impact on the heritage significance of the parks in which they were located. In his view the use of the park has evolved over time and this was part of the continuing history. It is his view that the design of the new buildings does not impact on the significant plants and trees and that the aesthetic qualities of the place be maintained. It is his view that the proposed development preserves the function of the previous kiosk while meeting contemporary demand -- 26 of 68 -- 27 expectations. The essential nature of New Farm Park he sees as "an idealised landscape which historically has responded to the changing demands of the community it serves." [106] In his heritage report provided to the respondent in March 2003 for Blue Sky Company Pty Ltd, Mr Riddel said, in respect to scale and form, that: "[w]hile being a considerably larger facility than the original kiosk, the new building is fragmented to maintain the scale established by its predecessor. The principle places are enclosed within separate pavilion structures. Their size and modulation relates to the trees amongst which they are positioned, roofs are designed as a series of light floating planes gathered together in an organic arrangement, making reference to their "natural context." The highest section of roof over the reception area signifies the kiosk to the park landscape as did the form of the original building in the less mature landscape. Walls are modulated with glass and masonry panels, the latter resembling garden walls, to maximise transparency and fragment the building mass. Significant spaces are oriented and opened up to accentuate the significant vistas to adjacent park elements." [107] Mr Riddel in cross-examination said that by reference to the table at page 26 of Part A Volume 1 (exhibit 4), he did not have any issue with the 998 m2 area for the proposed development. It may be that the comparison does not reveal very much by way of change to the total area of the building or buildings prior to the fire and following the fire in the temporary facilities. The same area is referred to in the report of traffic engineer, Mr Kliemeyer. [108] However, Mr Riddel later in his evidence said that in respect to the total area of 988 m2, the internal area was shown in exhibit 7A as 502 m2, which was a 100 m2 or 25% increase in the internal area size. Whilst the 988 m2 was stated in the application documents, the corresponding area on exhibit 7A was 727 m2 , a somewhat less area. [109] Mr Riddel agreed that there had been a dramatic increase in population of the immediate area to the north of the site on the former CSR site, redevelopment. He also agreed that the scale and form of the proposed facility made it considerably larger than the original kiosk. With respect to the Brisbane and Melbourne botanic gardens, which were referred to in some of the evidence as providing a comparable development to that proposed by the applicant, that the residential areas in Brisbane, at least were some distance away. He agreed that the continuing health of significant trees in the park was an important heritage consideration and agreed with the respondent's 2001 study conclusion to the effect that the main significance of the park was its early twentieth century character. He agreed that the park had aesthetic, historical and social significance and that there had been changes in park philosophy and the use of the park over time and that the park retained a strong association with the community. [110] Mr Riddel said that he thought that the only heritage issue of significance was that of size and intensity and that the other matters referred to by Mr Scott in his report in paragraph 6.07 (exhibit 13) were not heritage issues. [111] He considered that the roofed areas of the proposed development made the building look bigger in scale but that the impact of size and intensity was a matter of degree to the individual observer. He was referred to Mr Scott's statement in exhibit 13 to the -- 27 of 68 -- 28 effect that most of the angles of view of those buildings made them appear considerably larger than the original kiosk, particularly when viewed from the west and the southwest. However, Mr Riddel said that the difference was that there was more cover, that is roofed area than the old building provided and scale and form depended upon the perspective from which it was assessed. Despite the size of the marquee he believed it was clearly a "temporary" facility by reason of its appearance. [112] Mr Scott says that the park's "[m]ain significance lies with it being a very good example of an early twentieth century park with its bandstand, kiosk and avenues for strolling. It also has aesthetic, historical and social significance" (Theana Gardener, conservation architect in conservation management study - BCC 2001) [113] He expresses a view about the value of the park as being related to but different from its value as a Heritage Place. "The strength of its value as a Heritage Place lies in its ability to demonstrate its origins as a good example of an early twentieth century park." This view is thus contrary to the view expressed by Mr Riddel, which I referred to above. [114] In his report he referred to statements of significance from the Queensland Heritage Register Citation. This refers to the following: A. Change over time, "with a shift in emphasis from genteel Edwardian ornamental gardens and leisure activities, to barbecues and jogging." He considers that the proposed development has an impact on the criteria. B. Rarity (as a new park having been designed by Henry Moore). The proposed development does not impact on the criteria. D. The Edwardian bandstand is a principle characteristic of the "class of place" that is the park. This criterion is not impacted by the proposed development. E. The aesthetic consideration: "the park's vistas, jacaranda drive, river frontage, rose gardens, sub-tropical shrubberies and mature trees including palms, figs and poincianas demonstrate an established sub-tropical garden character and are well appreciated by the public". He considered this criterion to be impacted by the proposed development. F. The creative achievement of the park designers is not impacted by the proposed development. G. Social significance: the long-standing and strong association with the local community and popularity with a broad range of park users. He did not consider this criterion to be impacted by the proposed development. H. The association with persons of note (involved in the creation of the park) - he considers there is some impact on this criterion by the proposed development. [115] Mr Scott referred to a conservation study in 1998 that generated policies for the management of the kiosk which would maintain the heritage values of the building. The "use" of the place as a "small park refreshment kiosk and residence" was considered the most compatible use n order to retain its cultural significance. Uses or activities which confuse or obscure the ability of the place to demonstrate this use should not be permitted and any extension to the existing building should respect its -- 28 of 68 -- 29 original small scale and form, should not alter the scale of the original building and should not impede the view of the front of the building from the park." Mr Scott, in cross-examination, referred to the proposed development affecting only a small part of the park but that the original kiosk was visible from only a limited number of positions which was not the case with the proposed development. in his report he expressed the view that the "substantial increase in building size will alter the landscape character of this section of the park." He identified a number of areas of impact of the proposed development on the amenity of the park: • Not appropriate uses in a parkland area • Size and intensity of use • Noise (traffic, music, patrons, servicing) • Hours of operation • Car parking • Servicing via Dixon Street which is a residential street • Refuse and associated odour [116] Mr Scott said in evidence that all seven items were relevant to a heritage assessment, even though some were the subject of other expert assessments. He considered the scale of the proposed development was bigger than the original kiosk, and that whilst the number of separate buildings helped control the scale, there was a shift from the temporary facility (marquee) to permanent facilities which had a bigger impact and had a bigger and more lasting impact on heritage values even though the numbers of patron seating might be the same. He said that "this proposal is moving away from an ancillary facility for patrons of the park, to a destination facility in its own right." That is, the park hence became secondary to the kiosk, restaurant and function centre which are of a quite different character to what preceded it. He expressed the view that whilst the proposed development was a public facility, it would cater for a select segment of the public" and others would thereby be alienated. He said that: the "constellation of factors associated with the change from a kiosk offering ‘refreshments’ to a large commercial restaurant' function centre, with its associated constant through-put of patrons would be a not-insubstantial change to the character of New Farm Park. This change of character would have a negative impact on the heritage values of the park." [117] The City Plan Heritage Place Code did not permit negative impact on the Cultural Significance of a heritage place subject to a development proposal. The performance criteria are: "P1- the proposal must not damage (or diminish) the cultural heritage significance of the heritage place (or heritage precinct), but provides for its future protection. P2 - the proposal must be based on, and take account of, all aspects of the cultural significance of the heritage place (or heritage precinct). -- 29 of 68 -- 30 P3 - the proposal must protect the fabric and setting of the heritage place (or heritage precinct), whilst providing for its use, interpretation and management. P4 - the proposal must be based on the issues relevant to the conservation of the heritage place, with appropriate opportunity for community comment on their findings (or heritage precinct)." (July 2007 amendments). [118] Mr Scott expressed the opinion that the proposed development would "substantially reduce the cultural heritage significance of New Farm Park" and advocated the replacement of the kiosk with a "small scale refreshments" only commercial outlet with associated covered and shaded seating areas: that is a modern version of the original kiosk. In cross-examination Mr Scott agreed that the park was now a big, inactive park and that there had been change in the land use in the park over time. However, the proposed development in his view was "a change too far" with the size and intensity of use the main issues, followed by amenity impacts. The proposed development altered the character of New Farm Park. He did not agree that the proposal was "simply part of the evolution of history [of] on-going changing use of the park. (T6-20) He agreed that the park was a metropolitan attraction and a tourist attraction. His difference of opinion with Mr Riddel was that it was too great a change whereas Mr Riddel was of the view that the proposal was within acceptable limits so far as cultural heritage was concerned. He agreed that there was no cultural heritage imperative to reproduce the kiosk as it formerly existed simply because that kiosk was now gone. The proposed development "is something more than just support for people visiting the park (T6- 21)." [119] In re-examination Mr Scott expressed the view that the scale (the overall size of the buildings) included all the physical attributes of the building. The proposal (that is, a restaurant and function facility) would change the character of current uses, both active and passive. The proposed development in his view would not be described as a "kiosk." [120] Mr Scott expressed the view that none of those Performance Criteria were met by the proposed development. [121] The parties are agreed as to the trees to be retained (TRP) or removed. [122] Mr Riddel likened the intensity of the development to the Melbourne Botanic Gardens facility. Frankly, evidence of the existence of the facility – without more – is not particularly helpful and I do not regard the comparison to be of any practical assistance to me on the state of the evidence about it. [123] The experts disagree about the impacts of the increased density on the heritage values of New Farm Park. Their approach to the issue differed. In the Queensland Heritage Register two of the seven criteria are relevant. [124] The appellant submitted that the ability to demonstrate the park’s origins as a good example of an early 20th century park has survived despite change and that the proposed development, whilst itself had changed, does not diminish that ability. [125] Scale and size was a primary focus for Mr Scott. He referred to the proposed development as a destination facility as distinct from being a facility ancillary to the -- 30 of 68 -- 31 other uses of the park. In other words, he said the park was supporting the proposal rather than the proposal supporting the park. [126] Mr Riddel said the proposed development was “a considerably larger facility than the original kiosk”. Mr Scott said that the proposed building area is more than twice the pre-fire building area. Both of them are correct in what they say in the holistic sense.’ [127] The marquee was always “temporary” in the sense of it being able to be dismantled and re-erected. The function room, on the other hand, is permanent. [128] The kiosk was ancillary to the primary use of the park. I have no doubt about that. [129] Mr Scott was critical of Mr Riddel because he did not refer to the Heritage Place Code. [130] The Heritage Place Code in place at the date of the Development Application is of primary reference but weight may be given to a new Code if the Court considered it appropriate so to do. The July 2003 Code [131] The purpose of the Code is said to be to “ensure that development does not detract from the Cultural Heritage significance of the Heritage Place.” [132] The performance criteria are: “P1 The proposal must not damage the Cultural Heritage significance of the Heritage Place, but provides for its future protection. P2 The proposal must be based on, and take account of, all aspects of the cultural significance of the Heritage Place. P3 The proposal must protect the fabric and setting of the Heritage Place, while providing for its use, interpretation and management. P4 The proposal must be based on the issues relevant to the conservation of the Heritage Place, with appropriate opportunity for community comment of the findings.” The July 2007 Code [133] The purpose of this Code was amended to include an additional purpose being to “ensure re-use of a Heritage Place is compatible with the premise(s) cultural significance.” [134] Each of the Performance Criteria were amended by the insertion of the words “or Heritage Precinct” after the words “Heritage Place”. Mr Scott did not consider the amendments to be material to the appeal because Heritage Precincts were introduced but New Farm Park is not one of them. -- 31 of 68 -- 32 Discussion [135] The co-respondent proposed a rhetorical question: can the proposed development be accommodated in New Farm Park without damaging the historical and cultural values of the park? He would answer the question in the negative. It is, in the final assessment, a matter of balancing the competing views about that question because it is so far as heritage values are concerned the critical question to be assessed. [136] In my view the significance of New Farm Park as a cultural heritage place is a compelling factor in this appeal. Whilst change has occurred within the park and the use of the park has changed to reflect evolving lifestyles over time, the change sought to be made by the proposed development is too great. It offends the criteria principles in the Park Code and the planning scheme generally. Its size, scale and intensity make it a commercial development in the park that serves its own purpose rather than being subservient to the park, which is the more appropriate purpose. It would have a negative impact on the park values and the cultural heritage of the place in the context of its history and evolution. I consider the proposal to be an inappropriate development in New Farm Park in terms of the planning scheme considered as a whole. The Amenity Issues (a) The evidence of Co-Respondent Mr Pellegrino [137] The co-respondent, Mr Pellegrino has been a resident of Unit 1, 25 Dixon Street since 2000. He developed a three storey/4 unit townhouse complex adjacent to New Farm Park at that location at a time when the area across Dixon Street was undeveloped following the cessation of industrial use in that locality. [138] He describes having experienced disturbance from marquee/function events and from patrons leaving functions in the past - loud and/or drunken and/or boisterous behaviour, slamming of car doors, loud music - and noise from delivery vans. The kiosk burned down in late 2000 and he says there has been reduced activity at the temporary facility since then. [139] He stated that day time activity produced typical but acceptable public noise and atmosphere from within the park and that at night it was very quiet and peaceful. [140] He has views from his unit overlooking the lease site. He expresses concern that an approval of the development application would impact adversely on him and upon his neighbours' amenity: noise and traffic increase due to regular delivery and waste disposal trucks and regular functions generating noise. His concern extends to traffic, parking, arrivals and departures of patrons using Dixon Street and the proximity of the proposed development to the children's playground and to training grounds for junior sports clubs within the park. He stated that parking space availability Dixon Street was already compromised by nearby commercial businesses and by park users. He expressed the view that the property development would have a real impact on parking. [141] He described Dixon Street as being a quiet residential street with good night lighting and New Farm Park is a popular inner city open "space for people." -- 32 of 68 -- 33 (b) Evidence of other neighbours [142] Ms Bickle resided at 16 Dixon Street, overlooking the park and the lease site since March 2005. In her affidavit she stated that parking was a regular problem in Dixon Street. She expressed concerns about noise, gathering of boisterous patrons waiting for transport and disturbance at night including music and noise from the proposed development. She expressed a view that the park was a family attraction and that the proposed development was inappropriate in that location and would be destructive of amenity. [143] Mr Flaskas purchased a house in Binkimba Street in October 2007, opposite the children's playground in the park. He moved into that property in October 2009 but had previously lived nearby in a rented unit. [144] In his affidavit he described current parking space problems in the streets in the locality. He stated that on evenings when Powerhouse events were held and the fortnightly farmers' market and weekends with park visitors placing pressure on parking availability. He described cars parking against the one-way traffic direction and on footpaths in the locality. He expressed concern that the proposal would exacerbate this problem and that there would be noise generated from music, amplified speeches, patrons and traffic. He described having experienced similar disturbance from his occupation of a house next to a function venue at Victoria Park Golf Course. He described the experience as one of "mayhem", induced by alcohol consumption. He expressed the view that the tranquillity of the park would be ruined by the proposed development. [145] Mr Lauritz has owned Unit 3, 25 Dixon Street since August 2000 and is an immediate neighbour of Mr Pellegrino. He has lived at that address since late 2003. In his affidavit he expressed concerns about multiple noise, traffic and car parking concerns and the proposed hours of operation of the facility. He described streets in the locality and the ring road in the park being fully parked-out at weekends. He stated that Powerhouse events increased the parking pressure as did the cinema complex and farmers' markets. He said that Dixon Street was well lit and accommodated turning vehicles. The Brunswick Street entrance closed early and the implication in his affidavit is that this made Dixon Street a viable alternative access and egress point to and from the park He sated that the current park use did not create any disturbance of concern. [146] Ms McInally has resided at 8 Hopetoun Way since June 2005 opposite the tennis courts in the park. In her affidavit she states that there is a traffic issue currently with "gridlock" on the narrow Hopetoun Way as parking spaces are sought by visitors. The street is well lit at night and she expresses concerns that the proposed development will increase parking pressures and that there will be an increase in what she describes as "anti-social behaviour", and noise generated from the venue. She states that patrons returning through her locality from Powerhouse functions are a current source of such noise. She expresses no objection to what she refers to as a "typical" kiosk: that is, " a 'tea room' type facility catering for park users operating in daylight hours." (c) Assessing the evidence of other neighbours [147] I have been asked to deal with the evidence of the witnesses who were not required to attend the hearing for cross-examination on their statements. It appears from -- 33 of 68 -- 34 submissions that they were available had it been considered necessary to cross- examine them and that I should regard their evidence as evidence of their perceptions of impacts upon them, quite apart from any visual impact, of the operation of the proposed facility, primarily it would seem from the other evidence noise and traffic (including parking) issues. So far as the noise issue is concerned, the appellant's case is that the proposed noise management strategy would address concerns about that issue quite adequately and that so far as traffic and parking was concerned, the emphasis was on the use of the Brunswick Street entrance to the park, rather than Dixon Street and hence the impact upon residents of that street and of nearby streets in the new urban redevelopment area would be minimised. [148] I will take into account the views of those witnesses who provided statements but were not cross-examined on the basis that it is a matter of what weight can properly be given to their statements in the context of the whole of the evidence. The view expressed by them is a proper consideration for the Court. However, their evidence is an expression of their own views and is not assessed as representing the views of divers others in their residential community. (d) The Noise Issues [149] The Application was supported by a noise assessment report prepared by Ron Rumble Pty Ltd. that identified six noise issues. Those noise issues, if not properly dealt with, could potentially cause unacceptable noise impacts on neighbouring residences: (i) plant noise, (ii) noise from external dining areas, (iii) noise from entertainment, (iv) noise from deliveries and waste collections, (v) noise from outdoor service activities, (vi) noise from patron departures at night. [150] The report concluded that subject to the imposition of appropriate development conditions, each of the potential noise problems could be dealt with so as to avoid adverse noise impacts. [151] No noise issues were mentioned in the Decision Notice. However, the town planning experts had expressed concern about potential impact of noise on nearby residents, particularly in Dixon Street, arising from the daily hours of operation of 7 a.m. to 1 a.m. (contrary to the noise assessment report, but as stated in the town planning report that supported the application). [152] The first joint report of the noise experts dated October 2006 was predicated on operating hours of 8 a.m. to 12 midnight. There being no areas of disagreement, the noise experts Mr Rumble and Mr Kamst agreed as follows: “(i) The six noise issues considered in the original noise impact report are the appropriate and applicable issues to consider in this instance. -- 34 of 68 -- 35 (ii) The noise assessment methodologies used in the original report are in accordance with the relevant Council Planning Policy and are appropriate. (iii) Each and all of the potential noise problems considered in the noise report could be avoided through the imposition of appropriate development conditions. (iv) The specific noise concern raised by the town planning experts to the possible disturbance of nearby residents in Dixon street, presumably by patrons to the restaurant who have parked in Dixon street and are departing after 1 a.m. The noise experts agree that patrons parking in Dixon Street should be discouraged by using boom gates, pedestrian fences and gates to control access to and via the back-of-house service areas” (my underlining). [153] In the second joint report dated 17 February 2009 Mr King joined the other experts. There was one change to the agreement that deleted the sentence underlined above and substituted the following: “(iv) [T]he noise experts agree that patrons from the Summerhouse should be prevented from parking in Dixon Street and disturbing residents with their late night departures. This could be achieved using suitably designed fencing and gates which could be locked at 10 p.m. (Security staff currently lock various doors and gates throughout the park at different times and signs to this effect are prominently displayed. Gates to Dixon Street could be managed in the same way).” [154] In the third joint report dated 20 March 2009 six issues were addressed: the currency of ambient noise levels (the January 2003 data continued to be relevant), noise from outdoor patrons and from entertainment, deliveries, collections and outdoor services and the effect of public parking on residential amenity. It was agreed that licensing and/or Council conditions could meet these concerns, including garbage collection hours limited to 7 a.m. to 6 p.m. and other utility activities hours limited to 7 a.m. to 10 p.m. and other services limited to the park ring road. [155] The relevant appeal issue in the third joint report was the potential noise generated by patron departures in Dixon Street. The agreed response was expressed as follows: “The particular concern is noise from loud and boisterous behaviour of patrons departing the venue and walking to their cars or taxis in Dixon Street. This would relate primarily to function type events i.e. wedding receptions. Consequently our recommendations to date have been to prevent access/egress directly to Dixon Street after 10 p.m. This was envisaged to be achieved by the use of fencing and gates.” [156] The report referred to a parking survey that indicated a high level of demand for parking in Dixon Street and that this could be a disincentive for patrons to park in Dixon Street and reduce the level of pedestrian access. Nevertheless the recommendation for fences, gates and signage was maintained. -- 35 of 68 -- 36 [157] In the fourth joint report dated August 2009, that recommendation was considered further by the three noise experts in light of the unfavourable view expressed by the Respondent. A document titled “Management Strategies for Functions” was prepared by the Appellant. The points of agreement are relevant: “i. The measures proposed in the management strategy are used by other venues to assist in the control of noise impacts generated by patrons departing late at night. ii. The successful implementation of such measures would assist in reducing the risk of adverse noise from patrons exiting to Dixon Street. iii. With a management approach, there is no certainty of success. There is still a finite risk that patrons could circumvent the control measures and/or security staff could be less than diligent. iv. The fence and gate option offers a more “robust” solution, and if it was possible to implement, it would still be the favoured solution.” [158] The experts disagreed as follows: “a) Mr King and Mr Kamst do not support the management approach as it does not ensure that noise events will not occur. b) Mr Rumble holds the view that there are no 100% guarantees when you are trying to control the actions of people, and that the proposed management strategy reduces the risk to an acceptable level.” [159] Hence the noise issue for my determination is the "management" of noise caused by unruly patrons departing late at night and causing disturbances to residents of Dixon Street. The implication flowing through (from the manner of expression of this issue in the earlier reports) is that such patrons would have parked their motor vehicles in or otherwise arrived in and entered accessed the facility from Dixon Street. [160] Mr Boyle, in his evidence, referred to a management strategy for functions designed to address the issue identified in the joint report of the noise experts in respect of possible noise impacts in Dixon Street as a result of unruly behaviour by patrons leaving functions at the proposed development after 10 p.m. and walking to their vehicles or taxis parked in Dixon Street. [161] The strategy adopts a methodology to control the noise risk by a combination of physical deterrents to minimise the probability of patrons parking in Dixon Street, pro- active advice to patrons to reinforce the preferred and more convenient parking provisions and taxi access via New Farm Park (that is, using the ring road) and management initiatives to moderate the behaviour of all departing patrons. [162] The appellant’s noise management strategy was devised by Mr Rumble on the basis of the following premises: (a) Pre-emptive advice to all intending function patrons on access and parking arrangements, -- 36 of 68 -- 37 (b) Physical disincentives to deter access to the premises via Dixon Street, and (c) Security staff (supplemented by restaurant staff) to organise and co- ordinate departures, including if necessary, escorting patrons to their vehicles should they ignore steps (a) and (b) above and park in Dixon street. [163] Mr Rumble says this strategy is commonly used by licensed premises and that in his experience as an observer it will work successfully. [164] The “Management Strategy for Functions” is set out in full at Appendix 2 to this Judgment. (e) Noise Management plans: discussion [165] The appellant contends that the only noise issue in dispute is whether potential noise from patrons leaving a function after 10 p.m. into Dixon Street "can be adequately controlled by measures such as those in the "management strategy for functions"". [166] The experts referred to the discouragement of patron parking in Dixon Street by use of boom gates, pedestrian fences and gate, to control access to the rear of the premises. However, they disagreed as to the effectiveness of a noise management strategy. The appellant submitted that the only issue in respect of noise for the consideration of the Court is the amenity impact of noise upon Dixon Street; that is, despite what the respondents say by reference to residents in Hopetoun Way, that locality has not been identified as being relevant to the issues for determination on this appeal. My approach to this matter is to deal with impacts involving Dixon Street. One or more of the residents who provided statements (that were not the subject of cross-examination) reside in streets other than Dixon Street. [167] However, the reality is that whatever view I have about amenity impacts arising from noise as they affect Dixon Street, affect equally areas in an incidental manner areas adjacent to Dixon Street, without it being necessary for me to specifically address issues that might have an impact beyond Dixon Street. [168] The appellant argues that there is no need for patrons to use Dixon Street to park, there being adequate parking available on the ring road and that patrons would prefer to enter by a front entrance to the premises rather than pass by the rear of the premises in order to gain entry; and that whilst there is limited parking available in Dixon Street, the further residential development envisaged in the vicinity would more likely attract parking by residents or visitors to those premises, rather than public parking associated with the park. [169] The taxi and taxi management issue I have already addressed. [170] The noise management strategy proposed by the appellant is said to "assist in ensuring there is no disturbance of residents in Dixon Street" (see ‘Management Strategy for Functions’ in Appendix 2). [171] Mr Rumble has been involved in noise management plans in the past. He says noise management is quite common. The appellant's submission is that there are no issues that cannot be addressed by appropriate conditions. -- 37 of 68 -- 38 [172] The appellant referred to a number of cases in which noise management plans have been considered by the Court. However, what might work or potentially work in one environment may not be effective in another. Each case must be considered in it’s own context and environment. [173] The respondent's submission is that the acceptability of noise impacts must be judged against the planning background of the case, particularly the heritage values and the reasonable expectations of residents, based on the provisions of City Plan 2000. [174] Mr Kamst did not believe that the noise management strategy met the agreed position of the noise experts. Mr King recommended the "gating-off" of Dixon Street access after 10 p.m. The context is that any form of access would simply be barred after that time. There are implications for users of the park generally in adopting such a proposal. [175] The appellant submitted a number of authorities that were said to be comparable. [176] In Comkey Pty Ltd & Anor v Caboolture Shire Council & Ors [2006] QPELR 399, the Court considered a development application for a development permit for a material change of use for a shopping centre and a tavern. The Court accepted control measures directed to substantially eliminating irresponsible patron behaviour. However, the development in that case was a large scale commercial retail centre which included a tavern premises. The management issue was directed to the possibility of irresponsible patron behaviour at the tavern. A tavern is a completely different type of premise than from the proposal in this case. It included limiting trading hours, no loud musical entertainment, implementing a behaviour management plan, late evening closure of a drive-through bottle shop and provision of a courtesy bus. I do not see that the plan in that case as being in any way comparable to a plan for the purposes of the proposed development in this case. The tavern in that case was with the shopping centre located on a green field site of degraded land in a special rural zone and incorporated in acoustic barrier fence and any residential areas were located on the other side of the shopping centre complex from the tavern. [177] In Atkinson v Ipswich City Council & Anor [2006] QPELR 550, the proposed tavern development was made subject to a package of controls to reduce the incidents of irresponsible behaviour and to ameliorate likely noise levels to acceptable levels. The tavern proposal was ultimately refused because of its size and locality. [178] In Hedley Constructions Pty Ltd v Caboolture Shire Council [2006] QPELR 46, reference was made to a package of controls, including a behaviour management plan directed to substantially eliminating noise from irresponsible patron behaviour. The proposal was refused on other grounds. [179] In Body Corporate for Kelly's Beach Resort v Burnett Shire Council [2003] QPELR 114, Judge Skoien SJDC at [60] – [61] accepted a noise management plan where it was contended that the amenity of the area might be affected adversely traffic, noise and ‘intrusion’ into the lives of local residents by guests of the appellant. His Honour said: “So the test is not whether the amenity would be degraded but whether it would be unreasonably degraded.” [180] The appellant also referred to Green v Brisbane City Council & Anor [2005] QPELR 121; Gold Coast City Council v Hanwell Pty Ltd [2005] QPELR 198; and Elborn v Esk -- 38 of 68 -- 39 Shire Council & Ors [2008] QPELR 24 where the Court dealt with noise management plans or conditions directed to managing potential noise sources. Discussion [181] Enforceability of the noise management strategy is a very significant issue in my view. The noise management plan is proposed because there is as a matter of fact a real risk of unacceptable noise. The strategy would not have been devised had the appellant not been aware that it was an issue that needed to be addressed from the outset. The plan relies on patron co-operation and good and consistent management supervision. Patrons more likely than not would arrive at the premises by some form of transport, most probably by private motor vehicle and only be on foot from where they alight from the transport for the distance between that point to the entry to the premises. [182] It is unsatisfactory to rely on enforcement if there are natural difficulties associated with it, particularly if it becomes an "enforcement nightmare". [183] The premises are not constructed with noise reduction in mind it seems. They are premises which include integrated open areas. There may be some form of noise buffering supplied by building orientation, by closing windows and doors or by vegetation screens. [184] The management of the premises have authority only over the leased area. The escorting of patrons, as envisaged in the strategy, is fraught with enforcement difficulties. Mr Rumble in fact envisaged patrons being escorted by security personnel to the lease boundary. Neither management nor any security personnel would have any authority over patrons in the park or in Dixon Street or nearby locations. It is open to ask the question how many staff would be necessary to attend to enforcement at any given time or otherwise generally during the course of any activity in the premises. The evidence and the plan do not address that issue. [185] Whilst there may have been noise management plans approved or adopted by the Courts in the past, as I have observed the Court has to carefully analyse the circumstances in which such plans were proposed and the environment that they were designed to address. (f) The Traffic Issues [186] The traffic engineers, Mr Kleimeyer (for the appellant) and Mr Beard (for the respondent) made two joint reports. In the first joint report dated 09 November 2006, they identified two points of disagreement: 1. Mr Kleimeyer considered that the provision of five on-site parking spaces complied with the Transport Access Parking and Servicing Code and was consistent with P7 in the Planning Scheme Policy. The original tender did not require re-establishment of existing parking spaces. 2. Mr Beard considered that the proposed development was contrary to P7 and the purpose of the Code. He considered (so far as is within his expertise) that there would be a significant increase in the demand for public parking in and around New Farm Park and that other park users would be discouraged from visiting the park because of the increased congestion of in-park and on-street parking spaces. -- 39 of 68 -- 40 [187] The second joint report dated 12 February 2009 also involved Mr Holland (for the co- respondent). All of the engineers were uncertain about the proposed capacity of the development. [188] Mr Kleimeyer confirmed his view about P7 and compliance with the Code by the provision of five parking spaces on-site (within the requirement of one parking space per 200 m2 of gross floor area, in this case 988 m2 ). [189] Mr Holland and Mr Beard considered that because the proposed development was impact assessable it was to be assessed against the whole of the Planning Scheme, including P7 of the TAPS Code, Table 12 of the TAPS Policy and Dot Point 4 of s 215.2 of Chapter 3 of the Planning Scheme: that is, 79 on-site parking spaces or more. They also considered that: • The proposed development would generate substantial parking demand; and • The practicality of closing off Dixon Street to pedestrian access at night (the recommendation by the noise experts) was uncertain and that other parking problems including set-downs and pick-ups could be generated in Dixon Street. [190] Mr Kleimeyer considered that the internal ring road in New Farm Park was the primary parking provided and that anecdotal and survey evidence demonstrated patron parking on the ring road and surrounding streets, the Powerhouse car park but not Hopetoun Way (or inferentially Dixon Street). He also considered public transport and pedestrian access to be relevant. [191] He considered that any nett car parking demand generated by the proposed development should be measured against the previous kiosk demand for the site. That measurement demonstrated a nett level of demand of less than 79 parking spaces and a capacity for existing spaces to absorb the extra demand. Set-downs and pick-ups were more appropriate at the Brunswick Street pedestrian entrance to the park. Mr Holland and Mr Beard were also concerned about the increase in traffic movements and associated noise in Dixon Street, which they described as a medium density residential dead-end street. [192] Hence the issues, in summary, in respect of traffic were: 1. Substantial parking demands. 2. Traffic movements and parking problems (including set-downs and pick- ups) in Dixon Street. 3. Whether there is compliance with the TAPS Code, including its Purpose. 4. Whether there would be an unacceptable impact on users of the park (in the holistic sense). [193] Mr Kliemeyer considered that the estimate of 40 vehicles per week for commercial or service delivery would range over a number of sizes and purposes and be mainly daytime traffic. He did not consider the number to be high and that this was a matter of volume and degree. He agreed that vehicle movements and access and on-site parking were live issues in the proposal. He considered that Brunswick Street was well known and more likely to be the chosen route and entrance to the park for patrons -- 40 of 68 -- 41 using the proposed development. When asked if he could think of any examples of a short residential road such as Dixon Street being used for a volume of traffic such as was estimated, he could not nominate any comparative example. He agreed that optimising public transport use was an aspirational approach of traffic engineers. The vehicles that parked on grass verges within the park were included in the survey numbers because that was an existing situation. So far as winter and summer park use was concerned, he did not consider there was any seasonal difference in parking demand. [194] Mr Holland considered that the use of a local access street such as Dixon Street by service vehicles in the manner proposed, was quite different from the use of other streets with a different configuration and adjacent environment. [195] Chapter 5 of City Plan (Codes & Related Provisions) which was tendered as exhibit 22 tab 14 provides as follows: “Performance Criteria and Acceptable Solutions … The Performance Criteria are in the left hand column of the Code Table. They provide a statement of the outcome that the Acceptable Solution must achieve. A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met. … For Code and Impact Assessment the Acceptable Solution represent the preferred way of complying with the Performance Criteria. …” [196] Under the TAPS Code (exhibit 22 tab 15), the Acceptable Solutions Performance Criterion P7 (Vehicle Parking) include: “A7.2 For development of any of the uses listed in column 1 of the car parking table, on-site car parking complies with column 2 of that table and the Transport, Access, Parking and Servicing Planning Scheme Policy, except for non- residential development in City Centre or City Frame. A7.3 On-site car parking numbers for development in the City Centre or City Frame as indicated on Map A – City Centre and City Frame Areas do not exceed 1 car space for every 200 m2 of gross floor area for any development other than a multi-unit or single unit dwellings or Short Term Accommodation.” [197] New Farm Park is in the City Frame (exhibit 22 tab 15). The proposed development complies with the Acceptable Solutions A7.2 and A7.3. However the respondent and co-respondent dispute the relevance of performance criterion P7. The property is not associated with commuter travel. The City Frame Provisions are so associated. The -- 41 of 68 -- 42 applicant says that upon a proper construction of the City Plan and particularly Map A (exhibit 22 tab 15 p 258) PC7 of the TAPS Code is applicable and relevant. [198] The introduction to chapter 5 (Codes & Related Provisions) also provides: “Performance Criterion and Acceptable Solutions … For appropriate impact assessment a proposal that complies with all Acceptable Solutions will be approved, subject to: • Being able to be conditioned to mitigate any potential adverse impacts. • Meeting the code’s purpose. • Meeting the plan’s DEOs.” [199] Hence the appellant says the proposed development can be conditioned to mitigate any potential adverse impacts, such as noise. [200] The purpose of the TAPS Code is described as follows: “3 Purpose The purpose of this Code is to: • Ensure that the development utilises all relevant transport modes, including walking, cycling and public transport, it does not impact adversely on the efficiency and safety of transport corridors or diminish the amenity of nearby land uses. • Ensure that car parking spaces and associated manoeuvring areas provided on a development site are designed to be safe and functional and meet the reasonable requirements of the development activity. • Ensure that adequate provision is made for service vehicles to meet the reasonable requirements of the development.” [201] The applicant says that New Farm Park is serviced by a variety of public transport modes, there is existing parking within the park itself and that the proposed development provides five additional spaces. Hence the parking requirements of City Plan are accommodated. City Plan DEO 3.5.1 (Access and Mobility) which refers to reducing reliance on the use of private motor vehicles, is achieved in the development proposal. [202] The appellant referred to Bon Accord v BCC & Ors (2008) 163 LGERA 288 where compliance with P7 of the TAPS Code was considered by the court. In effect the court -- 42 of 68 -- 43 held that by reason of the development site’s proximity in that case to public transport (rail and bus interchange) a construction of the code converts what would otherwise be a minimum rate for the provision of car parking becomes more than the maximum. His Honour Judge Rackemann said “the evident intention is to limit, rather than maximise, on-site car parking providing in relation to centre activities in a centre close to public transport facilities of the kind described.” The development in that case was a new shopping centre in the Sandgate Town Centre which included a full size supermarket. However, the respondent and co-respondent refute the relevance of the Bon Accord case because it was a code assessable development and not an impact assessable development as is the case here. In my view that is a significant distinguishing factor. [203] The appellant submits that the property development meets the Acceptable Solution for vehicle parking and complies with the purpose of the TAPS Code. It was submitted that the proposed development provided a facility (or part of it at least) for use of park users who would otherwise be in the park in any event. [204] The experts have adopted an increase in parking demand of between about 40 and 80 spaces, depending on the methodology used, if one assumes some people would be in the park in any event. The appellant referred to Mr Holland’s assessment of a shortfall in parking availability on Sunday afternoons and submitted that could not justify refusal of the proposal. [205] In so far as the issue of amenity was concerned, it was submitted that 40 service trips per week and the nature of delivery vehicles and waste and recycling collection was so low as to be of no concern. On the other hand, the respondent’s approach to that issue is that the proposed development is a commercial development with access via a median density residential street. Dixon Street was a relatively short medium density street. None of the three experts could provide an example in recent times of an approval being granted for this type of use at the end of the local access street. The co- respondent referred to the traffic movements as amounting to a dramatic increase in the context of Dixon Street as described. Both respondents referred to the proposed development as being a “destination” in itself as distinct from being a facility supporting other in the park. They submitted that a substantial number of patrons would use Dixon Street and Hopetoun Way to the detriment of the amenity of those areas and that the increased movement would most likely be late at night. The respondents submitted that the traffic issue was such that a refusal of the Development Application was justified on the basis of the City Plan and City Frame: “(1) Section 4.2.2.1 (City Plan) Meeting Realistic Expectations of Future Amenity People should be able to choose their residential locations with realistic expectations for the future amenity of the area. The Plans’ strategic directions in this regard are to: ƒ Prevent intrusion of development that would seriously detract from residential amenity. ƒ … ƒ Avoid through traffic in residential locations. -- 43 of 68 -- 44 (2) Section 2.5.2 Impact Assessment (City Plan) ƒ The character, location, sitting, bulk, scale, shape, size, height, density, design and external appearance must accord with the reasonable expectations and DEO’s for the area in which the land is classified. ƒ … ƒ The proposal does not detract from the … amenity of the locality … issues such as hours of operation. ƒ The proposal does not generate greater traffic movement …than is reasonably expected in the surrounding locality by reason of: - On-site and on-street parking. - Number or type of vehicle movements. - Manner of access to the site. - … ƒ Noise generated by the proposal is within levels expected for the area in which the land is classified. (3) Park Code Purpose ƒ Ensure that development of parks makes a positive contribution to … the environment and amenity of the area. ƒ Ensure that the development of parks does not cause a negative impact on … the amenity of surrounding areas. (4) The Transport, Access, Parking and Servicing Code P7 of the performance criteria ensures: ƒ Adverse impacts must be contained within the site. ƒ Parking must not detract from the amenity of the area ƒ Must discourage on-street parking where there are … amenity impacts.” [206] The respondents submit that because the proposed development is impact assessable is impact assessable generally in appropriate development it will need to demonstrate -- 44 of 68 -- 45 those impact assessment criteria above referred to and that for amenity reasons, the traffic issues alone in respect of the development application warrant a refusal of it. Discussion [207] New Farm Park has an existing car parking problem (parking on grass verges). There is evidence of parking in connection with use of the park, in nearby residential streets. The closing times of the gates at Brunswick Street are not a matter under the control of the applicant. The use of public transport for access to or egress from the proposed development is doubtful and private motor vehicle use or taxi use is more likely. [208] Amenity is sometimes expressed in terms of expectations of residents as well as other users of the neighbourhood precinct. It relates to “the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by” (or the park user in this case): Vacuum Oil Company Pty Ltd v Ashfield Municipal Council [1956] LGRA 8, at 11. [209] The concept of amenity is one which is subjective in nature. In Broad v Brisbane City Council (1986) 2 Qd.R. 317, de Jersey J wrote (at 326): “[t]he concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use of which a particular sire is or may be put, may affect one’s perception of amenity”. [210] In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112, Dodds DCJ wrote: “[40] A persons’ right to put their land to any lawful use they wish is, in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness…proposed development will often affect existing amenities. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other land holders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not affected by some special sensitivity or eccentricity. The weight to be accorded to subjective views can only be judged in light of all of the evidence about the subject…” [211] “Character” is to be broadly construed. In Rosswallmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73, his Honour Judge Robertson wrote: “[40] ‘Character’ when used in this Planning Scheme and in others, has a wide meaning and must be considered in the context in which the -- 45 of 68 -- 46 term is used in the Scheme…”[C]haracter is (relevantly) defined in The Macquarie Dictionary as “the aggregate of qualities that distinguish it one…thing from others”. [212] In Tadpoles’ Early Learning Centre v Noose Shire Council [2008] QPEC 9, Judge Wilson SC referred to amenity in terms of the nature of the proposed development. In that case the proposed development was described by his Honour as a “very large building indeed, one which is quite out of character with the other buildings in the neighbourhood” in an area which had, as he also said “…the general appearance of a quiet street of detached houses”. [213] The parking issue is a difficult one in this case. The surveys that were made were not particularly comprehensive and I do not consider thy have much weight. Mr Kleimeyer did not consider that there were seasonal differences in use and parking demand. That seems to be contrary to objective expectation in my view. I have no doubt that the proposal would generate increased private motor vehicle and taxi traffic either on the Ring Road or in the Dixon Street locale. I do not think the ‘rear of premises’ aspect of the development would detract patrons from using Dixon Street as a place of access and egress for the proposed facility, particularly if the Brunswick Street gate closure impacts on time available to be spent in the facility. I do not regard the gate issue to be a matter that is currently resolved or certain. Similarly, I do not consider the potential cul de sac works in Dixon Street to be a concluded matter at present. I do not think there can be any reasonable objection to the number of service or commercial vehicles that might use Dixon Street. It is a matter of perception by individuals and I would not refuse the DA on that basis. [214] However, the parking issue is one which, applying the unacceptability test, is sufficiently unacceptable to warrant a refusal of the proposed development. The character of Dixon Street and its environs has changed dramatically in recent years with the urban renewal developments and this is an issue that impacts in a negative way upon the amenity of the area. The arboreal issues [215] Mr Hobbs and Mr Bishop met on three occasions. Dr Galea was present to assist on the third occasion with respect to the tree pathogen issue. These issues are inextricably tied to the tree pathogen issue. [216] After the first meeting there were no points of disagreement between the two experts. Discussion appears to have focussed on the work done and information compiled by other experts at an earlier stage of the proceedings, in the historical context, and about the production of a tree protection and management plan with information about preferred construction methods for the proposed development. The experts agreed that the trees and palms that were to be retained should be checked for the presence or absence of any fungal pathogen. Some discussion focussed on plans for the reconstruction of the end point of Dixon Street at the boundary to the lease area. [217] By the time of the second meeting and the joint statement of the two experts in April 2009, it was apparent that tree 1 was infected with the pathogen, "phellinus noxious" (“PN”) and that the pathogen had been found in numerous locations within the park. The experts concluded that the consequences of construction and use could be managed, reduced and treated but the consequences of the pathogen could not. They -- 46 of 68 -- 47 agreed that the complexity of attempting to resolve free management issues for the site was greater because of the presence of the pathogen. [218] On this occasion there were matters of disagreement. Those matters included the party responsible for the pathogen problem and consequently the remediation of it, whether the installation of screw piles within the root zones of trees 4 and 5 would facilitate further spread of the pathogen, and the unknown materials to be used for roofing on the structure made the issue of heat and light reflection into the canopy of the trees an issue. [219] Mr Hobbs was not convinced that the pathogen was a total killer of all trees. He considered there were still significant risks associated with the building design and construction, particularly in the light of the presence of the pathogen. Mr Bishop was of the view that a properly managed construction programme would meet any design and construction concerns. [220] The third meeting, involving the addition of Dr Galea, was probably the meeting of primary importance. The experts agreed that T1 was the most likely source of the pathogen on the site and that the status of T4 and T5 was unknown. Removal of T1 was agreed, in a way that did not cause excessive damage to the root system of T4 and T5. Dr.Galea made recommendations as to the work method involved in the excavation of the below ground components of T1. [221] The experts disagreed on a number of matters: Mr Hobbs disagreed with Dr Galea that a method of treatment control or management of the pathogenic disease was scientifically proven. Mr Bishop supported Dr Galea's report. Mr Hobbs did not consider that T4 and T5 had declined in the period from his first inspection in 2006 and September 2009. Mr Bishop disagreed. He considered that the development could proceed providing systems were put in place to reduce the risk to trees to an acceptable level and that the deck area could be installed and maintained over the root zone of the trees at acceptable risk to T4 and T5. Mr Hobbs held a contrary view. There was considerable discussion about the pathogen. One of the discussion points was the management of Energex's requirement to install the additional conduits in the electricity easement which runs through the tree and root protection zones of T1, T4, T5 and T10. Mr Hobbs considered that the proposals would not comply with the protection of trees on construction sites in terms of AS4970-2009. [222] Mr Bishop said that the vast proportion of root mass of the ficus is in the top 600 to 700 centimetres of soil. In the lease area soil comprises an overlay of material on organic (root zone) area on heavy clay. In some places there was a multi layer root system. [223] In so far as the screw piles were concerned, and in response to the objections of Mr Hobbs, Mr Bishop said that the template was not the Australian standard but the British standard and that encroachment into the TPZ would mainly be by the screw hole piers. He considered the encroachment would be less than 2 per cent and therefore complied with the Australian standard. [224] So far as the Energex conduit tunnelling was concerned he said it was controlled and gave rise to minimal risk. The proposed development is built over the easement hence the directional tunnelling is required. It involved a soil vacuum with a gurney which produced a slurry mixture that was sucked up by the vacuum. He considered it to be a -- 47 of 68 -- 48 contained process. It is open to Energex to do this work regardless of whether the proposed development proceeds. I doubt that the work method could be other than that described in these proceedings, in this area of the park, inlight of the knowledge of PN in this area. Mr Hobbs' report (Exhibit 15) focussed on the presence of PN due to the complexity that the presence of the tree pathogen added to the analysis of the site. [225] Mr Hobbs was concerned that the proposal involved activities that would disturb the soil within the area occupied by T1 and the TPZ of the trees to be retained - screw piles, heavy machinery, disturbance of soil in landscaping, removal of trees not to be retained, conduit installation in the Energex easement, the decking being a "cover" above the ground, the café building being erected over the root system, access points, maintenance and cleaning with chemical products which might produce run-off into the soil - all of which he considered to be likely to increase the risk of spreading PN. [226] His concern about PN was that was no known disease management strategy scientifically proved to be effective in the prevention, control or eradication of PN. The pathogen was easily spread by contact contamination. [227] He expressed concern that AS4970-2009, particularly with respect to encroachments that exceeded 10 percent within the TPZ, was not being complied with. I have already made observations about the response of Mr Bishop to this concern. [228] Mr Hobbs considered that disruption to natural vegetation and heat radiation from hard surfaces into the canopy with consequent potential changes to micro-climates, was a matter of concern. He formed the opinion "that the construction and operational activities associated with the proposal the subject of this appeal and the established presence of phellinus noxious within the lease area to be developed, conspire to present an unacceptable risk to the trees and palms that are to remain on the site. Accordingly I cannot support the proposal in its current form." The tree pathogen issue [229] Dr Galea, a plant pathologist, gave evidence about the presence of the tree pathogen PN in New Farm Park had the implications of its presence for the proposed development, particularly with respect to Tree 1 and the potential association of that tree with trees 4, 5, 10 and 13 and otherwise generally in New Farm Park. He held joint meetings with the arboreal experts, Mr Hobbs and Mr Bishop. So far as plant pathology matters were concerned, Mr Hobbs expressed disagreement with Dr Galea whilst Mr Bishop deferred to Dr Galea's expertise. [230] The condition of Tree 1 (a Ficus) had deteriorated in the period September 2006 to November 2007, when it was in effect dying or already dead. Dr Galea considered that this rapid decline, in the absence of other environment causes, pointed strongly to the possibility of disease caused by a fungal pathogen. Certainly he considered the tree was dead and had been so for a significant period of time, when he expected it in July 2009. After his inspection, he formed the view that PN was responsible for the death of the tree and that the whole root system was most likely colonised by the pathogen. He was certain that given the close proximity of Trees 4 and 5 to Tree 1, Trees 4 and 5 have, at their outer margins, made physical contact with the roots of Tree 1 and these roots have therefore come into contact with PN. He thought it was less likely that Trees 10 and 13 which were significantly further away from Tree 1, had come into direct contact with the diseased roots of Tree 1. -- 48 of 68 -- 49 [231] He considered that testing for the disease in trees in the park would be a relatively straight forward procedure, once access had been gained to the trees' roots systems. -- 49 of 68 -- 50 [232] He described PN as a wood rotting fungus. Its primary mode of action was to invade the roots of trees, to kill that root tissue to establish an infection base and then to progressively grow along the length of those roots towards the trunk from where it kills a tree by destroying the region of the tree's trunk below the bark responsible for growth of new wood and the veins responsible for the flow of sap and water. From this infection trunk the fungus then grows outwards along the existing root system towards the periphery of the tree, where if roots are in contact with roots from neighbouring trees, it invades those trees and the infection then progresses as described through the plant population. The pathogen can be spread by air borne spore dispersal but the risk of that occurrence was considered by Dr Galea to be a low risk. [233] He considered that control of the disease was a problem if it was not acted upon quickly. The removal of an infected tree was a method of managing the spread of the pathogen but required carefully a planned and executed system of removal. Such a systematic approach was still susceptible to being defeated because there was no absolute guarantee that the disease would not spread or have been spread from the diseased tree to neighbouring plant population. [234] In his report, Dr Galea referred to a draft work methodology statement and tree retention and protection plan. He also in the course of his report made recommendations with respect to the proposed methods of construction of elements of the building development. He did not consider the risk that the installation of screw piles would increase the risk of the spread of PN and that it was the lack of action by the respondent to remove Tree 1 from the site in a timely and appropriate manner which has posed the most significant threat to other trees on site and those adjacent to Tree 1. [235] Dr Galea provided a second report (exhibit 9) wherein he set out points of disagreement with the arboreal experts. Dr Galea considered that the risk of damage to T4 and T5 by PN was significant in that it was likely that without some form of intervention, they would eventually succumb to the disease and die. The type of intervention that might be used depended upon a closer examination of the route systems of those two trees. He did not consider that the lifting of existing road base and pavers would increase the risk of damage to Trees 4 and 5 beyond that which already existed. The work methodology statement set out in his view an appropriate methodology for removing the hard areas, without creating an unacceptable risk to existing route systems. He agreed with the arborists that the root system of T1 not be traced and excavated as he had initially thought it could. To do so probably would not significantly contribute to a means of saving Trees 4 and 5. He expressed the view that without an appropriate intervention programme, PN would eventually kill Trees 4 and 5 and continue to move towards other trees adjacent to them and similarly infect and kill them. Hence Dr Galea had a difference of opinion with respect to Mr Hobbs regarding T4 and T5. [236] The tree retention and removal program has been agreed between the parties. T1 is on the western boundary of the lease site and is, as I have indicated, already dead. [237] Removal of T1 and a clean up of the site, thus reducing the potential for spread of the pathogen, can be done independently whether the property development proceeds or not. The respondent submitted that the development of the site would have an unacceptable impact on the health and survival of T4 and T5. The applicant says that the impact such as it might be will have no affect on T4 and T5. T4 and T5: if they are -- 50 of 68 -- 51 already affected by the pathogen, they are likely to remain so affected. If they are not already affected by the pathogen, then the odds are that they are likely to be in any event. The screw piles process does not increase the risk of infection and the Energex ‘tunnel’ which is anticipated to be at one to two metres depth (most likely 1.8 metres deep) is unlikely to have impact because there is unlikely to be major roots at that depth. Accordingly the appellant says those processes are not a risk to the health and survival of the trees. [238] Mr Hobbs who was called as an expert by the respondent says that the risks are too high. He expressed concern that any disturbance of the soil within the TPZ would considerably increase the risk of PN contamination of the remaining trees and palms. The appellant submitted that he is too cautious and that he focused on PN almost exclusively in his consideration of the issues. On the other hand, Dr Galea is said to be the qualified expert on PN and the appellant his opinion should be accepted: that the development creates no additional risk of the spread of PN. Risk [239] The appellant referred to a number of authorities dealing with the issue of how risk is to be assessed by the court. The respondent submitted that the cases are of limited relevance. The risks considered where perceptions or subjective concerns in those cases. The risks here were real risks the trees in this case were of significant heritage value: Lane v Gatton Shire Council [1988] QPLR 49; Esteedog Pty Ltd v Maroochy Shire Council [1991] QPLR 7; and Telstra Corporation Ltd v Pine Rivers Shire Council [2000] QPELR 350. [240] In assessing a proposal that has an element of risk, even serious risk, the court should take a robust view, in accordance with the evidence about the risks, on the balance of probabilities, with due regard being given to the potential for minimising or eliminating, so far is practicable, the realisation of the risk. Assessment of risk is not and cannot be made on the basis of a guarantee that the risk will not be realised. Discussion [241] I accept the evidence of Dr Galea in preference of the evidence of Mr Hobbs. Both of the experts are well qualified in the field and Mr Hobbs has a long and impressive record in dealing with arboreal issues. However, Dr Galea I regard as being a qualified expert specifically in relation to PN. I am satisfied that the proposed development does not create an additional risk of the spread of PN. [242] Whilst Dr Galea recommended further investigations rather than a tracing of the root system of T1, which carries a level of risk, I never the less am satisfied that the risk of the spread of PN is not a matter alone upon which the court could reasonably justify refusing the Development Application. Precautionary Principle [243] The respondent submitted that I should apply the precautionary principle: Leatch v Director General National Parks and Wildlife Service [1993] 81 LGRA 271. I do not think that the scientific uncertainty, to the extent that there is any, about the further spread of PN in the circumstances that I have described is sufficient to justify the application of the principle: Mansell v Maroochy Shire Council [2008] QPELR 122. -- 51 of 68 -- 52 Construction of the planning scheme: discussion [244] In Westfield Management Ltd v Pine River Shire Council & Anor (2004) QPELR 337, Britton SC DCJ said with respect to the construction of planning schemes: "[18] I accept that the following principles apply to the construction of planning schemes: (a) they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach; (b) they should be construed as a whole; (c) they should be construed in a way which best achieves the apparent purpose and objects; (d) in the light of the proscription against prohibiting development contained in IPA (s. 6.1.2)(3); (e) statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate; (f) a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved; (g) a Strategic Plan should be read broadly and not pedantically; (h) although planning documents have the force of law they are not drawn with the precision of an Act of Parliament; (i) a conflict alone may not have the effect of ruling out a particular proposal; (j) implementation objectives must be read sensibly and in context. They are but a function of the principle objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent." (Citations have been omitted) [245] The construction of the planning scheme in the context of the planning legislation is a matter for judicial determination. The Court must consider the merits of the Development Application against the relevant provisions of the planning scheme. The proposed development is impact assessable and is therefore assessed against the whole of the scheme. [246] In Grosser v Council of Gold Coast (2001) 117 LGERA 153, White J referred to the proper approach of the Planning and Environment Court to matters of planning policy. It is a self-limiting approach, at least when considering town planning matters. The reference in Grosser to s 4.4(5A) is to the repealed legislation (Local -- 52 of 68 -- 53 Government (Planning & Environment) Act 1990). The section, so far as is relevant, is materially the same as s 3.5.14 of the Act: Her Honour stated that it was not the Court's function to substitute planning strategies those that a planning authority has carefully and properly adopted. She continued: "[44] It is well recognised that a town planning appeal Court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid …"; and "[49] Section 4.4(5A) has a simple two-stage process which first requires the identification of conflict with the Strategic Plan then, if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict." Conflict with the planning scheme: discussion [247] "Conflict" is considered against the substance of the planning scheme, not against a provision in isolation from the whole and the conflict must be plainly evident. In Central Equity Limited v Gold Coast City Council (2007) QPELR 356 Wilson SC DCJ referred to compliance with planning schemes in the following terms: "[16] Although Ch 2 of the planning scheme specifies that 'All Performance Criteria are considered separate and distinct', in light of the overlap between the matter addressed by the numerous PC in the Codes which are relevant here, it would be excessively mechanical to simply consider each discreetly and, in a case involving purported compliance in a way different from that proposed by the Acceptable Solution, give each a separate positive or negative response. Undertaking the process in that way would also be entirely discordant with ordinary, common modern principles of statutory construction: Project Blue Sky v ABA [1998] 194 CLR 355. [17] For these reasons it is appropriate to consider compliance with PC concerning matters like site cover in concert with those which touch what are plainly, under the Codes, concerns of a similar type: here, those directed towards setbacks, plot ratios and, (because of the affect the visual elements inherent in amenity issues arising in regard to those topics), landscape." [248] See also Aldi Stores v Redland City Council [2009] QPEC 27, albeit in a different context of conflict with the planning scheme. [249] One of the differences between the two legislative provisions is the use in the Act (in its most recent form) of the expression "sufficient grounds" in lieu of the expression "planning grounds". It is arguable that "sufficient grounds" implies a wider test under the Act. -- 53 of 68 -- 54 [250] "Grounds" is relevantly defined in the Act for the purposes of s3.5.14 to mean "matters of public interest" and does not include the personal circumstances of an applicant, owner or interested party. [251] In Weightman v Gold Coast City Council (2003) 2 Qd.R. 441 the Court of Appeal held that the requirement imposed by s 4.4(5A) of the repealed legislation was mandatory and not merely directory. Atkinson J applied the following test: "[36] In order to determine whether or not there are sufficient planning grounds to justify proving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should: 1. Examine the nature and extent of the conflict; 2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; 3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict." [252] In Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R. 273, the Court of Appeal analysed the issue of conflict between the decision and the planning scheme and the test applied in Weightman: "[23] 'Conflict' in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike 'compromise' in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that 'the assessment manager's decision must not … conflict with the planning scheme' requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision. [24] Section 3.5.14(2)(b) differs in several respects from s. 4.4(5A) and s. 4.13(5A) of the Local Government (Planning & Environment) Act 1990, provisions which may be regarded as its predecessors. Under those sections the subject of the putative conflict was under the application; here it is the assessment manager's decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the -- 54 of 68 -- 55 grammatical structure of the two sections is significantly different. These differences mean that care must be used in applying the cases decided under those provisions to the present section." [253] Fryberg J (with whom Holmes J agreed) referred to the process approved in Weightman in respect to the repealed section. However, he said it would "[be] a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification"; and "[T]he purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case" (at page 286 and 296 respectively). [254] In Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447, Wilson SC DCJ referred to the sufficiency of planning grounds, notwithstanding conflict with the planning scheme: "[103] IPA s. 3.5.14(2)(b) provides that the assessment manager's decision (or, in this case, the decision of this Court) must not conflict with the planning scheme unless there are sufficient planning grounds to justify the decision. The existence of conflict is a question of law. Any conflict said to arise must be plainly identified but that is a process undertaken by looking at the scheme as a whole, rather than isolated provisions. The word 'sufficient' refers to the weight to be afforded on any particular ground which is advanced as a reason for approval, despite conflict; and the phrase 'sufficient planning grounds' refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which relate to the merits of the application." The proper approach to resolving conflict [255] In a case such as this the correct approach requires the Court to consider the decision and to identify the nature and extent of the conflict and to assess, in the context of the planning scheme as a whole, whether there are planning grounds of sufficient weight to justify approval, despite conflict and bearing in mind the proscription in the Act against prohibiting development. Codes and Planning Scheme DEOs [256] In SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24, his Honour Judge Rackemann referred to the use of the codes in planning schemes: "[46] The codes in the 2003 planning scheme follow a familiar 'performance based' structure, similar to codes in other IPA planning schemes. The codes commence with a statement of purpose. The codes also identify the development to which applies and then contain 'development requirements,' which are set out in a table of Performance Criteria and Acceptable Solutions. The planning scheme provides that: -- 55 of 68 -- 56 'Development proposals must comply with the performance criteria to meet the objectives of the planning scheme and ensure that the DEOs are not compromised. … It is desirable that code assessable development comply with the acceptable solutions to ensure that each performance criterion is met. However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criteria, to Council's satisfaction. Where no acceptable solution is provided for a performance criterion in the code, the development must provide its own solution to meet that particular performance criteria.' [47] Statements to similar effect can also be found in other IPA planning schemes which adopt performance based codes. The performance criteria are generally outcome focussed, while the acceptable solutions indicate a 'desirable' way to 'ensure' compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution. [48] It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a 'relaxation' or a 'dispensation'. It is another way of achieving compliance with the relevant performance criterion." [257] In Koerner & Ors v Maroochy Shire Council & Ors [2004] QPELR 211, Wilson SC DCJ distinguished s 3.5.14(2)(a) with (2)(b) of the Act: "[25] [T]here is, then, a distinction between compromising the achievement of DEOs and conflicts with the Planning Scheme. For a development to compromise the achievement of a DEO there would, it is clear, have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised. The first part of the section, concerning DEOs, looks to the macrocosm of the entire planning area and the possibility that the "vision" for it is, as a whole, adversely affected. The other looks, comparatively speaking, to the microcosm of particular parts of the Strategic Plan and involves a much more pedantic exercise." -- 56 of 68 -- 57 [258] In Handley v Brisbane City Council & Anor (2005) QPELR 80, his Honour considered issues of amenity, community expectation in the broad context. In reference to the Brisbane City Council Planning Scheme, he said: "[19] These city-wide DEOs are expressed in very general terms and are to be considered with reference to the 'Planning Scheme Area' which, here, constitutes the whole of the city of Brisbane (RPA s 2.1.2). This wide scope means the occasions in which a development proposal compromises the achievement of a DEO will not be common, because it will be rare to see an individual development having a noticeable effect upon the achievement of a DEO for the entire Planning Scheme area." [259] In Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267, his Honour again dealt with the DEOs in the broad context: "[26] There is, then, inherent difficulty in the proposition that a small development proposal on a small parcel can yet compromise city-wide DEOs. That difficulty is compounded here by other 'city-wide strategies' which appear to promote social and cultural diversity, and non- discriminatory access to public and private development (3.2.8). Only by taking an extreme view of particular, selected phrases in the DEOs could it be argued that there is a discernible conflict between this proposal, and the generalised in-principle "contents". Discussion: Is there conflict? Are there ‘sufficient grounds’? [260] Section 3.5.14 of IPA provides as follows: "(2) If the application is for development in the Planning Scheme area, the assessment manager's decision must not - (a) compromise the achievement of the desired environmental outcomes for the Planning Scheme area; or (b) conflict with the Planning Scheme, unless there are special grounds to justify the decision despite the conflict." [261] One town planner addressed strategy 3.2.2.2 of the Strategic Plan and concluded that the development proposal would "enhance achievement" of the strategy. The strategy in question appears in Chapter 2 of City Plan 2000. The strategy seeks to: "Cater for a balanced range of recreational and sporting opportunities, natural environments and attractive landscapes to meet the community needs through: (a) parks and facilities - a wide range and equitable distribution of high quality, useable parks and recreation facilities; (b) park diversity - parks and recreation facilities of different types and scales, containing different land forms, fauna, communities, vegetation types and features, and maximising opportunities to protect cultural, recreational, ecological and aesthetic values. -- 57 of 68 -- 58 (c) facilities and infrastructure - high quality park facilities that respect each parks' character and are appropriate for potential users." [262] Mr Kay also considered that the development proposal satisfied the location and occupational criteria of the intent of the Parkland Area: "The Parkland Area is for informal open air, recreation and outdoor cultural and educational activities, and may provide opportunities for informal sports or other events on a casual basis. Activities requiring permanent facilities, such as youth clubs, may also be accommodated in this Area, but only where they are located on large tracts of land and the activity occupies only a small part of the surrounding parkland. Land is generally publicly owned." [263] The provisions in the strategy and in the parkland area are general statements of intent and accordingly cast in very broad terms. It seems to me that many development proposals might in the general sense meet the strategy or intent of the parkland area but nevertheless might, given their particular location and the specific nature of the proposed development in such a case be otherwise an unacceptable development in their particular set of circumstances. I do not consider that Mr Kay's opinion expressed in this regard is significant in the circumstances of the subject proposed development in New Farm Park. [264] Mr Kay has expressed the opinion that DEO 2 does not preclude a restaurant and function facility in a park of a metropolitan scale. Whilst as a general statement that may be correct, it remains a statement made in a very broad context and without specific reference to the development proposal or the parkland in question. Mr Vann described the restaurant and function room as having a primary purpose of a commercial facility rather than a facility ancillary to recreational use. Those contrasting views raise the issue of how one might construe "recreational needs". The appellant referred to the construction of recreational needs in the context of planning schemes, the fact that there are restaurants situated in metropolitan parks and that New Farm Park had been the subject of change over time. [265] Whilst it is arguable that the proposed development has been designed to address or minimise unacceptable or undesirable impacts, that of itself does not answer the issue as to whether the proposed development is in conflict with the relevant planning provisions. [266] In Chapter 3 s 2.5.2 of City Plan, a number of considerations are listed as criteria for impact assessable development: the development proposal must be assessed against the whole planning scheme. I have referred to the criteria that the proposal needs to address in assessing inappropriate impact assessable development, at [89]. Those criteria within the context of the planning scheme as a whole, contribute to informing me in determining the issue of conflict. Recreational Needs [267] Recreational needs are not to be narrowly construed: Attorney-General v Cooma Municipal Council [1962] NSWR 663 (at 666-667). However, the construction needs to take into account all of the planning provisions relating to a particular site. In this -- 58 of 68 -- 59 case New Farm Park is subject to heritage listing and the heritage values of the park are a significant factor. I agree with the thrust of the submission made on behalf of the respondent which was critical of the approach that if the park was big the facility could be bigger. If that is the thrust of the appellant's submission in its reference to restaurant or function room facilities in other parks, then I think that is far too a simplistic approach. Conflict and Sufficient Grounds [268] In my view, the proposed development is in significant conflict with a number of provisions of City Plan 2000 including the following: • The scale and intensity of the development which impacts adversely on the heritage values of the park and the amenity considerations for adjacent residential areas. • Those amenity considerations include traffic issues (parking primarily), noise (primarily hours of operation). [269] Are there sufficient grounds to approve the proposed development to proceed despite conflict with the city plan? The exercise that I must engage is to weigh the nature and extent of the conflict against other factors: Retirement Properties of Australia v Maroochy Shire Council [2008] QPEC 61, per Dodds DCJ: "[45] Conflict with the Planning Scheme will result in the appeal being dismissed unless there are sufficient matters of public interest to justify approval of the proposal despite the conflict. That is because a decision to allow the appeal and approve the application must not conflict with the Planning Scheme unless there are sufficient grounds to justify the decision. The approach to this balancing process was described in Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161 and adapted to IPA in Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273, 286 per Fryberg J. The nature and extent of the conflict must be considered. Then there is required a determination whether there are matters of public interest, relevant to the aspects of the proposal and conflict with the Planning Scheme and whether the conflict may be justified on these grounds. Finally there is required a determination whether those matters of public interest in favour of the proposal on balance are sufficient to justify a decision approving of the proposal despite the conflict. More recently in Australian Holding Pty Ltd & Ors v Mackay City Council & Ors [2008] QCA 157 Muir JA with whom the other members of the Court agreed, described the processes identifying the grounds which may justify approval, assessment of the role and importance to the Planning Scheme of the provisions which would be infringed should the proposal be approved, the adverse consequences, if any which might flow from such infringement and the competing merits and weight of the grounds relied on to justify approval. The appellant maintains that there are sufficient grounds in the evidence of town planner, Mr Kay. It characterises the conflict as being 'at the minor or lower end of the spectrum'. Mr Van and Mr Evans of -- 59 of 68 -- 60 course express a quite contrary view. The respondents submitted that the matters characterised as being 'grounds' were really arguments advanced to establish that there was no conflict with the Planning Scheme, rather than being matters for consideration as 'sufficient grounds'. " [270] The proposed development has a commercial purpose. It is a facility which is not merely ancillary to the other uses of the park but rather extends well beyond that. I would have no doubt that a café with appropriate seating areas and a kitchen/bar from which food and beverages could be served would meet the modern day vision of a park "kiosk". However, the facility is significant in its scale and intensity and the permanent function room is such that the whole of the proposed development as a complex is a destination, as some witnesses have described it, rather than a facility which supports other uses within the park. The heritage values and the concerns of the nearby residents are in my view significant matters and none of the grounds advanced by the appellant as being "sufficient grounds" are capable of meeting that expression. Indeed, I disagree with the appellant's submission that "if there is conflict, it is at the minor or lower end of the spectrum." It is not. The conflict is significant. There are no sufficient grounds to approve the proposed development despite the conflict with the Planning Scheme. Conclusion [271] The proposed development substantially conflicts with the Planning Scheme. I refer particularly to the heritage values of New Farm Park, including the size, scale and intensity of the proposed development, and to the other amenity issues that I have discussed. There are no sufficient grounds to approve the Development Application. Accordingly the appeal should be dismissed. Orders 1 Appeal dismissed (NB: Appendices 1 and 2 attached) -- 60 of 68 -- 61 APPENDIX 1 EXTRACT OF GROUNDS OF APPEAL “10 In particular, but without limitation, the Application should be approved for the reasons set out below:- (a) The Respondent has failed to have proper regard to the intent of the Strategic Plan in relation to the Brisbane Green Space System in that the proposal will not adversely impact on the New Farm Park's ability to provide active and passive recreational opportunities; (b) The Respondent has not given any sufficient weight to the elements of the proposal which are consistent with and complement the recreational and cultural value attributed to New Farm Park; (c) The respondent has failed to give any or any sufficient weight to the matters raised by City Design in section 5.3 of its report entitled; Re-establishment of the Summerhouse Restaurant/Café/Function Facility at New Farm Park "in support of the Application ("the Report"), which identifies how the proposal is consistent with the intent of the Strategic Plan;" (d) The Respondent has failed to give any or any sufficient regard to the expert reports submitted by the Appellant in support of the Application, which demonstrate that the proposal is consistent with the intent of the Strategic Plan, the Parkland Area and the Park's Precinct of the New Farm and Teneriffe Hill Local Plan and the purpose and performance criteria of the Park Code and all relevant aspects of any other relevant planning documents, including but not limited to the following:- (i) Heritage Report in support of the Redevelopment of the New Farm Park Kiosk - New Farm Brisbane, February 2003; (ii) New Farm Park Plan 2001; (iii) Geotechnical Investigation Summerhouse Redevelopment - New Farm Queensland - January 2003; (iv) Erosion Hazard Assessment; (v) Tree Health and Protection - January 2003; (vi) Proposed Summerhouse Café/Restaurant & Function Centre New Farm Park - Assessment of Noise Impacts; and (vii) Summerhouse Restaurant Survey of Patrons - Travel Survey; -- 61 of 68 -- 62 (e) The Respondent has failed to have proper regard to the intent of the Parkland Area in that permanent facilities may be accommodated in the Area where they are located on large tracts of land and only occupy a small part of the surrounding parkland; (f) The Respondent has failed to give any or any sufficient weight to the elements of the proposal which are consistent with and complement the Desired Environmental Outcomes of the Parkland Area; (g) The Respondent has failed to give any or any sufficient weight to the matters raised in section 5.4 of the Report, which identify how the proposal achieves the relevant Desired Environmental Outcomes; (h) The Respondent has failed to have proper regard to the intent of the Park's Precinct at the New Farm and Teneriffe Hill Local Plan in that the proposal is consistent with the open space value of New Farm Park and enhances its active and passive recreational values; (i) The Respondent has failed to give any or any sufficient weight to the matters raised in section 5.5 of the Report, which demonstrate that the proposal is consistent with the Planning Goals and Principles of the Local Plan and the intent of the Park's Precinct of the Local Plan; (j) The Respondent has failed to have proper regard to the purpose of the Park Code and has failed to give any weight or any sufficient weight to the elements of the proposal which achieve the purpose of the Park Code; (k) Further, with respect to the Park Code the proposal is in conformity with the following Performance criteria:- (i) General; (ii) P1 - The proposal must be appropriate for parkland settings; (iii) P2 - The type and form of the proposal must maximise one or more park values, i.e. recreational or cultural education habitat, ecological landscape or corridor; (iv) P3 - Access circulation and parking facilities; (v) P7 - The nature and type of noise generated must be within the realistic expectations of any affected residences. (l) Further, the Respondent has given no or no sufficient weight to the fact that the subject proposal is being made to replace an existing facility which was destroyed by fire and in particular:- -- 62 of 68 -- 63 (i) The Respondent has given no or no sufficient weight to the fact that the proposed development is of a size and scale which is commensurate with the existing facility prior to its destruction by fire and also with the temporary facility that replaced the existing facility following the fire; (ii) The Respondent has given no or no sufficient weight to the fact that the proposed development proposes similar if not identical uses to those of the existing facility prior to its destruction by fire; (iii) The Respondent has given no or no sufficient weight to the fact that prior to its destruction by fire the existing facility enjoyed substantial community support and was regarded by the community as a positive adjunct to utilisation of New Farm Park; (m) Further, with respect to those matters set out in the City Plan of Chapter 3, section 2.5.2, page 6, the Appellant says that: (i) There is no conflict with the intention of the City Plan; (ii) To the extent that there is any conflict with the City Plan, such conflict is minor and is more than offset or compensated for by the contribution the proposal would make to community well-being, meeting a need for dining facilities in the New Farm Park Area, a continuation of a well-established function centre primarily accommodating weddings in the Parkland setting, the provision of Kiosk products and generally adding to the opportunity to enjoy visits to the New Farm Park; (iii) The proposal has a positive impact on amenity and meets an already demonstrated community need; (n) There is no or no sufficient town planning or other reason to warrant refusal of the application." ## -- 63 of 68 -- 64 APPENDIX 2 -- 64 of 68 -- 65 -- 65 of 68 -- 66 -- 66 of 68 -- 67 -- 67 of 68 -- 68 -- 68 of 68 --