Allen v Brisbane City Council; Sullivan v Brisbane City Council [2009] QPEC 56

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Allen v Brisbane City Council; Sullivan v Brisbane City Council [2009] QPEC 56 PARTIES: Appeal 2788 of 2008 Between TERRY ALLEN (appellant) v BRISBANE CITY COUNCIL (respondent) and TODD BAILEY (Co-respondent) Appeal 2880 of 2008 Between PATRICK MICHAEL SULLIVAN (appellant) and BRISBANE CITY COUNCIL (respondent) and TODD BAILEY (co-respondent) FILE NO/S: 2788/08 and 2880/08 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 23 June 2009 DELIVERED AT: Brisbane HEARING DATE: 16 & 17 June 2008 JUDGE: Andrews SC DCJ ORDER: 1. Appeals dismissed. 2. Application approved. 3. Appeals adjourned to permit the Council and the co- respondent to finalise appropriate conditions of approval. -- 1 of 17 -- 2 CATCHWORDS: PLANNING & ENVIRONMENT – where building works on subject land were suspected by submitter to be unlawful – whether submitter could oppose application for material change of use on ground that prior building works may have been unlawful PLANNING & ENVIRONMENT – where council failed to discuss with submitter the submitter’s objections – whether council failed to perform obligation to consider the objections – whether a failure by council would be relevant to the outcome of the appeal PLANNING & ENVIRONMENT – where on-street parking will increase – whether it is a basis for refusal of the application PLANNING & ENVIRONMENT – whether approval of the application would compromise achievement of desired environmental outcomes for the area - whether approval of the application would conflict with the planning scheme – neither compromise nor conflict found PLANNING & ENVIRONMENT COURT – submitter appeals against approval of an application for a development permit for a material change of use Agtec Holdings v. Kilcoy Shire Council [1999] QPELR 208 Brencorp Properties v. Pine Rivers Shire Council (1997) QPELR 12 SEQ Bond Stores Pty Ltd v Gold Coast City Council [2006] QPELR 747 Woolworths Ltd v. Maryborough City Council [2006] 1 Qd R 273 Integrated Planning Act 1997 (Qld) COUNSEL: The appellant Mr Allen appeared for himself in Appeal 2788 of 2008 and for the appellant in Appeal 2880 of 2008 Job of Counsel for the respondent in each appeal The co-respondent appeared for himself in each appeal SOLICITORS: Brisbane City Legal Practice for the respondent in each appeal [1] These two appeals were heard together. The appeals are by adverse submitters against the decision of the Brisbane City Council (“Council”) to approve, subject to conditions an application for a Development Permit for a Material Change of Use for a Restaurant (Café) not in a Commercial Character Building within the Low Density Residential Area of City Plan 2000 at 19 Orontes Road, Yeronga. The subject land and locality [2] The subject land at 19 Orontes Road, Yeronga has an area of 273m². The land, and the existing building on it, have been used for shop purposes in the past. It adjoins other commercial buildings, and forms part of a collection of shop premises in -- 2 of 17 -- 3 separate ownership. To one side is a chiropractor’s practice and to the other side is the office of the Queensland Little Athletics Association. [3] Residential uses surround the site and other shops. Immediately opposite the site is a public park. Mr Allen’s residence is to the rear. It does not have a common boundary with the subject land, but meets it at a point. [4] Pursuant to the Brisbane City Plan 2000 (City Plan), the land is within: (a) the Residential Neighbourhoods Element of the Strategic Plan; (b) the Low Density Residential Area; and (c) the Stephens District Local Plan Area. [5] The building erected on the land is a “Commercial Character Building”. 1 The Proposed Development [6] The proposed use is defined as a “Restaurant” in City Plan. However, where that use is carried out “in” a Commercial Character Building, it represents “Commercial Character Building Activities”. 2 Accordingly, as a consequence of the distinction between the conduct of the same use “in”, and outside of, the Commercial Character Building, the proposed use therefore represents partly Commercial Character Building Activities and partly a Restaurant. [7] Contrary to the appellants’ grounds’ references to “building extensions applied for in this current application”, no building extensions or work are applied for in the application. Council’s conditions of approval required construction of acoustic panels and an outdoor bin wash down area with a hose cock and a concrete slab falling to a drain plumbed to the BCC sewer. No other building work is proposed. [8] The only submissions received in respect of the development application were from the two Appellants. [9] The approval granted by council includes the following relevant conditions: (a) conditions 1, 2 and 3 require the development to be carried out generally in accordance with approved drawings and documents; (b) condition 5 requires there to be no more than 60 patrons at any time; (c) condition 6 provides that, in the event a liquor licence is obtained, the approval does not permit the service of alcohol to patrons that are not consuming food at the premises; (d) condition 9 imposes requirements in respect of noise levels; (e) condition 10 requires delivery vehicles and/or waste collection vehicles to “occur” between 7am and 7pm. This condition will require amendment to reflect the agreement reached in mediation that all deliveries must be via the street entrance to the land, and occur between 7am and 6pm; 1 Refer definition of “Commercial character building” – Ex.3, Chap. 3, p.67 and the Scheme mapping extracts, Exs. 8 and 9 2 Ex. 3, Chap 3, p.67 -- 3 of 17 -- 4 (f) condition 11 restricts the hours of operation to between 7am and 8pm; (g) condition 12 requires certification that mechanical exhaust and ventilation equipment is adequately noise-attenuated in accordance with the Council’s Noise Impact Assessment Planning Scheme Policy; (h) condition 13 requires the erection of a 1.8 metre high acoustic barrier as indicated on the approved site plan. That condition also requires amendment to reflect the plan referred to in the mediation agreement which plan has been accepted by the co-respondent. [10] The approved plans depict 2 on-site carparking spaces located off the access easement on the land’s north-western boundary. There is agreement between the parties that there should be only 1 off-street space. Other carparking is to be found on-street. The Appellants’ Issues [11] Notwithstanding that the notices of appeal seek reversal and rejection of the approval, the terms of a mediation agreement have limited the issues3 . The Mediation Agreement provided: “1. The appellant does not object to the use of the premises as a restaurant subject to the remaining issues in the appeal being addressed. 2. The co-respondent will agree to a condition that all deliveries must be via the street entrance and be accepted only between 7am and 6pm. 3. The appellant will not raise acoustics of the restaurant use as an issue if the co-respondent erects a 2,100mm wall in the place indicated on the attached plan. The wall may include a frosted glass, self-closing door. 4. If the co-respondent erects the wall referred to in paragraph 3 of this agreement, the appellant will not take issue with the location, or provision of, toilet facilities. 5. As to the exhaust fan, the appellant accepts that any acoustic issues with the fan can be addressed but the visual amenity remains an issue in the appeal.” [12] Two potential ambiguities appeared in the Mediation Agreement with its attached plan. That plan shows the subject land. On that plan appear two carparks. One of the carparks has been crossed out. The appellants and co-respondent indicated to me that this should be interpreted as showing an agreement that there should be only one carpark on the land. The respondent council indicated that it would abide the agreement. The second ambiguity issue concerned paragraph 3 in the Mediation 3 Mediation Agreement dated 27 March 2009 contained within section 1 of Exhibit 2 -- 4 of 17 -- 5 Agreement. It refers to a wall to be erected “in the place indicated on the attached plan”. That place was not obvious from the photocopy plan which appears as part of the Mediation Agreement within Exhibit 2. It was accepted that paragraph 3 of the Mediation Agreement does not refer to each proposed acoustic wall but only to the acoustic wall proposed to run approximately north to south. [13] It was ordered that the issues in dispute in Appeal 2788 of 2008 are those identified in paragraphs 1 to 13 of the Notice of Appeal 4 . With respect to Appeal 2880 of 2008, it was ordered that the issues in dispute are those listed in the Notice of Appeal filed 15 October 2009 5 and reference to that Notice of Appeal reveals five grounds. Mr Allen, the appellant in Appeal 2788 of 2008 appeared in both appeals. In his own appeal he appeared for himself. In Mr Sullivan’s appeal Mr Allen appeared as Mr Sullivan’s authorised agent. By Mr Allen, both appellants accepted that the issues in the two appeals are limited to the thirteen grounds set out in Mr Allen’s Notice of Appeal. The appellants withdrew their reliance upon grounds 7, 8 and 13. [14] The remaining 10 grounds of appeal are: 1. The bulk of the building development work, which is the subject of this development approval application, was carried out unlawfully, by a previous owner, in 2002. 2. Brisbane City Council made a serious error when in 2002 it requested that an application by the owner at the time, to carry out that work, be withdrawn, citing that approval was not necessary. 3. At no time since this property was sold in 2002, up until the current application was made in 2008, has there been any required statutory notification to residents of the surrounding area that a development application was going to be applied for. Therefore no provisions were made for adjacent residents to object to any development plans. 4. The building extensions applied for in this current application fall well outside the provisions of the Commercial Character legislation for the granting of a business licence to a freehold owner of residential zoned property is the use of the existing building for restricted business use. 5. At no stage throughout the period of this current development application has the Respondent contacted the Appellant, as the immediate residential neighbour, by telephone nor in person. No one from Brisbane City Council has discussed the long list of objections to the application, forwarded to the Council by the Appellant in the due time. However, during the application time very lengthy discussions have taken place, and have been recorded, between Council and the development applicant. 6. The applicant for this approval is currently advertising this property for sale. It is described as being suitable for a 65 seat restaurant. In granting the approval the Respondent has totally failed to take into account the impact that car parking will have on adjacent resident, which will be consideration 4 Order, 26 February 2009. 5 Order made 20 March 2009. -- 5 of 17 -- 6 if 65 people are ever seated on the premises at one time. There could be well in excess of 20 vehicles parked in surrounding streets. Residents already have a parking problem caused by the businesses located either side of these premises. 7. (Notice of appeal ground 9)Part of the unlawful work carried out by the previous owner in 2002 was a very large commercial extractor fan mounted on the roof of the house. It produces an excessive amount of noise. The required acoustic panels will do nothing to stop that noise. 8. (Notice of appeal ground 10)Currently all three of the premises, adjacent to this property, access one single shared 200mm pipe, to one common access point to the Brisbane City Council sewerage facilities. No amount of modification to the sewerage arrangements in this property alone will change the very restricted access through adjacent properties. 9. (Notice of appeal ground 11)By allowing the applicant to shift their current wash down facility closer to our property the potential for vermin is significantly increased, as well as the noise after 8pm. 10. (Notice of appeal ground 12)The applicant has demonstrated that they are not seeking development approval to open a restaurant, but rather to help in their efforts to sell the property. The Assessment Regime Assessment pursuant to the IPA [15] Pursuant to the IPA: (a) the Appeals are by way of hearing anew 6 ; (b) the Co-respondent bears the onus7 ; (c) the Appellants’ rights of appeal are only in respect of the part of the approval relating to the assessment manager’s decision under s.3.5.14 of the IPA (namely the impact assessable component of the development application) 8 . The Appeal has, however, proceeded on the basis that the proposal as a whole is being considered. That simplified approach is in the Appellants’ favour. [16] As the relevant part of the application required impact assessment it is to be assessed in accordance with s.3.5.5 of the IPA, and decided in accordance with ss.3.5.11 and 3.5.14. It is the latter, and in particular subsection (2), which requires that any decision in respect of the application must not compromise the achievement of the DEO’s for the planning scheme area; or conflict with the planning scheme, unless there are sufficient grounds. “Grounds” are defined in Schedule 10 of the IPA as meaning matters of public interest, and not the personal circumstances of an 6 s.4.1.52(1) 7 s.4.1.50(2) 8 s.4.1.28(1) -- 6 of 17 -- 7 applicant, owner, or interested party. “Conflict” means “at variance or disagree with”. 9 [17] No particular conflict is identified in the appellants’ grounds or submissions. “Generally inappropriate” development [18] Notwithstanding the scheme’s identification of the (outside seating component) of the proposal as being a “generally inappropriate” impact assessable development, that does not amount to a kind of prohibition. The scheme admits of the prospect of approvals being sought and obtained in response to impact assessable applications for such uses 10 . Reasonable Expectation [19] The reasonableness of professed expectations is to be judged by reference to the statutory planning controls11 . Put another way, whether the desires and expectations of local residents should prevail over the desire of a landowner to use its land as it chooses, can only be decided against the background of the statutory planning controls in place 12 . In that regard, City Plan gives express guidance as to what constitutes “realistic” expectations of future amenity under City Plan, including that development which complies with City Plan will be allowed. 13 City Plan [20] Impact assessment is assessed against the whole planning scheme, including “relevant” codes 14 . The relevant planning scheme in this case is City Plan. The Strategic Plan [21] City Plan contains a strategic plan in chapter 2. within that strategic plan the Residential Neighbourhoods provisions identify the “challenge” associated with development in the City. They provide, in particular, that: “The key issue raised by the community in the preparation of the B2011 Plan is the desire to protect the City’s unique character. This is addressed in the Character Housing and Commercial Character Building provisions…” 15 . [22] The components of the Residential Neighbourhoods strategy include meeting “realistic” expectations of amenity and the maintenance of character 16 . It seeks to 9 Woolworths Ltd v. Maryborough City Council [2006] 1 QdR 273 at [23] 10 SEQ Bond Stores Pty Ltd v Gold Coast City Council [2006] QPELR 747 at [27] 11 Eg. Brencorp Properties v. Pine Rivers Shire Council (1997) QPELR 12 at 16 12 Agtec Holdings v. Kilcoy Shire Council [1999] QPELR 208 at 212-213 13 City Plan chapter 2 s.4.2.2.1in exhibit 3 tab1. 14 Ex.3, Tab 2 – Chapter 3, p.6, s.2.5.2, 2 nd bullet point 15 Ex. 3, Tab 1 - Chapter 2, p.16, s.4.2.1, last para 16 Ex. 3, Tab 1 - Chapter 2, p.17, s.4.2.2 -- 7 of 17 -- 8 prevent intrusion of development that could “seriously detract” from residential amenity, and to allow development that complies with the Plan17 . [23] Specific provision is made for Commercial Character Buildings as follows: “These shop and office buildings add to the City’s character and liveability through their architectural form and style. Generally they were built before 1946, built to the alignment and incorporating an awning on timber or cast iron posts. The Plan encourages a range of commercial and retail activities in commercial character buildings. The granting of commercial and retail activity use rights will encourage their renovation and re-use” 18 . Area Provisions [24] The Low Density Residential Area within which the subject land is located is one of five different Residential Areas in the City. Although those areas are intended to be comprised mainly of dwellings, it is recognised that they will also accommodate activities servicing local neighbourhood needs, including shops, childcare centres and other community facilities19 . There are a range of Area based DEOs for the Residential Areas generally 20 which relevantly include DEO 9 - that non-residential development does not result in excessive intrusive noise or on-street parking congestion, or operation during hours that interfere with residential amenity. [25] The Level of Assessment Table for the Low Density Residential Area confirms that Commercial Character Building Activities for Restaurants require “notifiable” code assessment, and that a Restaurant falls within the default “any other material change of use” category and is therefore identified as generally inappropriate impact assessable development. Such development is said to be “not specifically envisaged” in the Area21 . In terms of the subject proposal however, that should be read in the context that City Plan “encourages” a range of commercial and retail activities in commercial character buildings, and that the use of a commercial character building for a restaurant use ordinarily requires a notifiable code application. The generally inappropriate “trigger” in this instance is the use of the outdoor area as it is not “in” the commercial character building. [26] The appropriateness of a generally inappropriate development is dependant upon its location, design and impacts. City Plan contemplates approvals being sought and obtained for such developments. The specific criteria for a “generally inappropriate” contained in s.2.5.2 of chapter 3 of City Plan relevantly include: (a) that the proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of both on-site and on-street parking, the number or type of vehicle movements, and the manner of access to the site; (b) noise generated by the proposal is within levels expected for the Area in which the land is classified; and 17 Ex. 3, Tab 1 - Chapter 2, p.17, s.4.2.2.1 18 Ex. 3, Tab 1 - Chapter 2, p.22, s.4.4.2.5 19 Ex. 3, Tab 2 - Chapter 3, p.27, s.5 20 Ex. 3, Tab 2 - Chapter 3, p.27, s.5.1.1 21 Ex. 3, Tab 2 - Chapter 3, p.6, s.2.5.2 -- 8 of 17 -- 9 (c) the disposal or storage of wastes and other materials will not result in visual blight, environmental degradation or nuisance. The Local Plan [27] Local Plans put forward more locally focussed desired land use and built form outcomes for Local Plan areas, and override any parts of the Plan with which they may conflict22 . In the subject case, the Stephens District Local Plan contains nothing relevant. Use of City Plan Codes [28] Chapter 3 of City Plan provides guidance with respect to the general assessment processes under it, and the IPA. In approving assessable development, conditions of approval may be placed upon a proposal to ensure compliance with a code requirement or provision, or to mitigate impacts23 . [29] Performance Criteria provide a statement of the outcome the Acceptable Solution must achieve. A proposal which does not comply with Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met. Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria whilst still meeting the Code’s purpose. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts. 24 Commercial Character Building Code [30] Whilst impact assessable development is to be assessed against City Plan as a whole, the Code which is identified as the “relevant” Code for Commercial Character Building Activities is the Commercial Character Building Code25 . Its Purpose is relevantly to: (a) “facilitate the retention and viable reuse of Commercial Character Buildings for a wide range of Commercial Character Building Activities that do not adversely impact on the amenity of the locality”; and (b) “ensure the reuse of Commercial Character Buildings does not create a major on-street parking problem or traffic hazard”. [31] The Performance Criteria and Acceptable Solutions of the Code include: “P2 Sufficient carparking must be available both off and on-street to meet the needs of the proposal without • causing a major on-street carparking problem; • creating or exacerbating an existing traffic hazard”. 22 Ex. 3, Tab 2 - Chapter 3, p.9, 1 st column 23 Ex. 3, Tab 2 - Chapter 3, p.5, s.2.5 24 Ex. 3, Tab 2 - Chapter 3, p.10, 1st para and Chapter 5, p.3, s.1.1 25 Although the town planners’ joint report identifies the Centre Design Code as a code which is relevant to the matter, that is not in fact the case, other than by reference to the Scheme as a whole -- 9 of 17 -- 10 [32] The corresponding Acceptable Solution (A2) provides: “The proposal does not create a major on-street carparking problem or traffic hazard, or exacerbate an existing traffic hazard”26 . [33] Relevantly also, Performance Criterion P3 requires the activity must be “compatible with a residential environment”. That performance criterion is deemed to be complied with if the requirement of the corresponding Acceptable Solution that “the activity does not involve the sale of items or the provision of services that are restricted to people over 18 years of age (other than tobacco products)” is met. That Acceptable Solution is complied with by the proposed restaurant activity. [34] Performance Criterion P4 requires the hours of operation to be suited to a residential environment. That is complied with in the subject case by reference to the Acceptable Solution which specifies hours of operation being limited to 6am to 8pm. The approval condition 11 specifies hours of operation 7:00am – 8:00pm. Compliance with City Plan [35] The matters above reveal the following intent: 1. the preservation of character in the City, including of Commercial Character Buildings is a particularly important objective; 2. accordingly, the City Plan positively encourages the use of Commercial Character Buildings with a view to their renovation and re-use; 3. although the outdoor component of this proposal constitutes “generally inappropriate” development, and whist amenity issues need to be considered, expectations are important in terms of the assessment of impacts. Such expectations must be “realistic”; 4. from a car parking perspective, the encouragement which is offered for the use of Commercial Character Buildings extends to avoiding only “major” on-street parking problems. [36] Mr Kay, a town planning expert elaborated upon what he considered to be realistic or reasonable expectations from his professional perspective in his evidence in chief. In that regard he was guided by the clear intent of City Plan that a wide range of non-residential uses are contemplated in Commercial Character Buildings, and also by the context of the subject site, involving as it does its location adjoining other non-residential uses. Whilst that context would preclude a number of the uses included as “Commercial Character Building Activities”, he considered that one would “have to expect” the use of the subject land for non-residential purposes. [37] The appellants do not allege any particular conflict between approval of the proposal and the City Plan. The town planners for the other parties did not identify any town planning issue in their joint report. There is no plainly identified conflict. The proposal is for a development which is positively supported by City Plan. 26 Ex. 3, Tab 4 - Chapter 5, p.60 -- 10 of 17 -- 11 First Ground [38] The first of the 10 grounds of appeal requires explanation. The application approved, subject to conditions, does involve some building work. The major part of it will be the construction of acoustic panels. The appellants explained that the reference in the first ground of the notice of appeal to “the bulk of the building development work” is not intended to refer to prospective building work. Instead, it refers to building and renovation work performed in about 2002 by a person who owned the land before the co-respondent had any interest in the land. The appellants submitted that the building work was carried out unlawfully by the previous owner. They submitted that the council had offered to the co-respondent to retrospectively make the unlawful building work lawful. The submission was supported by reference to a letter from the council27 which provides, so far as is relevant: “Condition (8) Infrastructure Contributions Planning Scheme Policies – has not been deleted as the proposed Restaurant in a Commercial Character Building and outdoor dining area is assessable development and was not existing and lawful on the subject site prior to the application…” [39] I do not accept that the council was offering to retrospectively make lawful building work which had been unlawfully performed. Properly understood, the council was indicating that the proposed use was not lawful. The council was not indicating that earlier building work was unlawful. The council’s advice concerned use of the site and not building works. [40] This ground is without merit. Second Ground [41] The second of the 10 grounds was explained. The appellants challenge the correctness of a decision made in 2002 by the Brisbane City Council to advise the owner at that time of the land that approval was not necessary to carry out building work on the land. One building work item of particular concern to the appellants is a large exhaust fan mounted on the roof of the premises in 2002. The appellants expressly declined to submit that it was illegal. 28 That was appropriate as there was no reliable evidence about the lawfulness of that aspect of building work done in 2002. Mr Allen in evidence asserted generally that building work done in 2002 was unlawful. Mr Allen’s honesty was not challenged by any party and I accept his honesty. His opinion on that matter of law is not of any persuasive force. There is no evidence to allow me to conclude that building work performed in about 2002 was carried out unlawfully. The lack of such evidence is not an impediment to my determination of the appeals. The appeals do not require a determination the legality of building works done in 2002. There is nothing in the IPA which makes legality of prior building work a relevant consideration to the subject proposal for approval of a material change of use.29 [42] This ground is without merit. 27 Exhibit 6. 28 T2-55 line 22 29 In ss.3.5.5 and 3.5.15 IPA -- 11 of 17 -- 12 Third Ground [43] The third of the 10 grounds was explained. The appellants submit that the advertisement of the application failed to alert readers of an important matter. The important matter was alleged to be that the application was to obtain approval for unlawful building work done previously. I reject that submission. The application was not for the approval of prior building work. [44] The only requirements in respect of public notification of development applications are those contained in Chapter 3, Part 4 of the IPA. The Court has declared its satisfaction with those requirements by way of its Directions Orders30 . There is no challenge to that. [45] This ground has no merit. Fourth Ground [46] The appellants explained the fourth of the 10 grounds. Their concern was that an impact assessment should have been performed before a prior owner did building work in 2002 and another impact assessment should have been performed before the current owner moved the front door of the premises on the land at some time since 2002. It was explained that the phrase “building extensions applied for” referred to in the fourth ground are not proposed building extensions but building works previously done. [47] There is no evidence to allow me to conclude that building work performed in about 2002 or since was carried out unlawfully. The lack of such evidence is not an impediment to my determination of the appeals. The appeals do not require determination of the legality of building works done in 2002. There is nothing in the IPA which makes legality of prior building work a relevant consideration to the subject proposal for approval of a material change of use.31 Fifth Ground [48] The fifth ground is self explanatory. The appellants further submitted that the Council had failed to take due care and to exercise due diligence. The evidence relied upon was the Council’s failure to respond to Mr Allen about detailed submissions he sent. Council may have acknowledged to Mr Allen receipt of the submissions but neither consulted with him nor advised him of any deliberations being made. The failure to engage with Mr Allen in any way which showed to him that the council considered his submission led to Mr Allen’s frustration with and distrust of council. [49] The only relevant obligation upon council in this regard is to consider all properly made submissions in respect of the development application 32 . There is no evidence that consideration of Mr Allen’s submission did not occur. [50] I do not find that council failed to consider Mr Allen’s submission. A failure by the court to make a finding on this point does not have any effect upon the merits of 30 Ex.2, Tab 1 31 In ss.3.5.5 and 3.5.15 IPA 32 ss. 3.5.4 and 3.5.5 IPA -- 12 of 17 -- 13 these appeals. The appeals are hearings anew. The court stands in the shoes of council and determines the application made by the co-respondent irrespective of whether the council has previously considered all properly made submissions. Sixth Ground [51] The sixth of the grounds refers to carparking. It was orally explained that the appellants are also concerned with traffic and safety of children. The reference within the ground to an advertisement describing the property as suitable for a 65 seat restaurant became the subject of evidence. A real estate agent currently advertises the subject land for sale on the internet. The advertisement advises that the café has “seating for approximately 65 patrons” and suggests that the property “is destined to become a of Brisbane’s café hotspots” (sic). [52] The appellants submitted, in effect, that the advertisement is evidence sufficient to support findings that: (a) Neither the co-respondent nor any subsequent owner of the subject land will abide the condition that there be no more than 60 patrons at any time; (b) The co-respondent intends to attract custom from outside the local area; (c) A café on the subject land will not be viable unless it encourages custom from outside the local area; (d) Those matters will lead to increased traffic in the area and increased need for carparking. [53] The appellants tendered photographs33 which show the extent of on-street parking congestion when the restaurant the subject of the application is not operating. The photographs show that there can be 12 or so cars parked on-street within 60 metres, or so, either side of the boundaries of the subject land. Those cars are parked on both sides of the wide Orama, or Orsova and Orontes Roads. The appellants submitted that the photographs show a parking problem. I reject that submission. The need for some persons to walk the short distances involved is not inconvenient. The roads are wide enough for cars to park on both sides and to enable traffic travelling in opposite directions to pass. [54] The appellants submitted that on-street parking is a problem because bus patrons park their cars in the area using the parking spaces around the park. While I accept that bus patrons may do so, I do not accept that either the photographic evidence or Mr Allen’s evidence establishes that the current parking is a problem. [55] The appellants submitted that other parking and traffic issues exist. It was submitted that some persons park unlawfully at the intersection by failing to keep sufficient distance from the intersection. It was submitted that large freighter trucks drive past the subject land along Orontes Road to turn around the park. I accept these submissions. While there was no evidence of truck and bus numbers I assume that that the appellants’ evidence would have been that the numbers are as was suggested by Mr Allen when he cross-examined Mr Beard, namely that each day, past the subject land, there are 35 bus journeys and 20 freighter trucks pass to turn 33 Contained within Exhibit 11 -- 13 of 17 -- 14 around the park. On that assumption, Mr Beard said that he would not revise his opinions. [56] The appellants submitted, in effect, that if the application is approved the proposed scale of the restaurant was too great and that there would inevitably be non- compliance with Performance Criterion P2 that: “Sufficient carparking must be available both off and on-street to meet the needs of the proposal without: 1. causing a major on-street carparking problem; 2. creating or exacerbating an existing traffic hazard.” [57] Mr Beard was the only traffic engineer to consider the matter. He noted: “The local street network around the subject site carries very low traffic volumes at moderately low speeds – there is no through traffic. … all of the streets have 12 to 12.5 metre wide pavements in 20 metre wide road reservations. Consequently, there is an abundance of on-street parking available, since the streets are wide enough for parking both sides with two traffic lanes in the middle” 34 . [58] He concluded that the on-street parking demand would be “easily accommodated” on Orsova Road and Orontes Street adjacent to the site and the triangular park opposite. Parking demand for the restaurant was estimated at 15 cars. The park perimeter alone could accommodate that total parking demand. The streets are wide enough for parking both sides, so residents (and their visitors) opposite the park will still be able to park on-street. Against that background it was Mr Beard’s opinion that: “... there is no reasonable prospect of the subject development causing or contributing a major on-street parking problem”. 35 [59] Mr Allen’s cross-examination regarding a probable prohibition of parking within 10 metres of any intersection did not alter Mr Beard’s opinion in that regard. He noted that there would be “still plenty of parking” within the 150 metre walking distance of the premises which he regarded as convenient. [60] Overall Mr Beard concluded that there was no traffic engineering reason for refusal of the proposal. Scenarios involving bus and truck movements which were put to him by Mr Allen in cross-examination did not give rise to any concern on Mr Beard’s part in terms of traffic congestion, safety, noise or general amenity. He regarded the 20 freighter trucks which currently pass as undesirable and the proper subject of a traffic control device elsewhere which the council can introduce. [61] Insofar as carparking is concerned, I reject the appellants’ submission and find that the proposal complies with the Commercial Character Building Code. It does not 34 Beard Report, s.2 35 Beard Report, p.3, s.4.1 -- 14 of 17 -- 15 compromise DEO 936 of the Low Density Residential Area in that the proposed use of the outdoor area will not result in on-street parking congestion. I do not regard lawful on-street parking in the wide nearby streets as compromising the desired environmental outcome that here should be no on-street parking congestion. I reject the Council’s submission that the DEO refers to “excessive on-street parking congestion” preferring the interpretation that the adjective “excessive” which is in the DEO is not used to describe “congestion”. I do not regard the anticipated on- street parking as either congestion or excessive congestion. Having regard to the proposed use of the outdoor area for seating, and its generally inappropriate impact assessment, I regard the proposed use as satisfying the criterion that it not create greater traffic movement or hazard than is reasonably expected. Seventh Ground [62] The seventh ground (notice of appeal ground 9) is affected by compromise. The appellants no longer object to noise. Matters relating to acoustics are the subject of a mediation agreement. The appellants retain the ground because they submit that the extractor fan is inappropriately large and ugly. They submit it should have been dealt with by the Council and that it should be replaced with an aesthetically better solution. [63] There is no evidence that the building work which involved the construction of the extractor fan was unlawful. [64] No submissions were made by either party as to whether this appearance of the exhaust vent on the roof was a proper basis for rejection of the application or for a screening condition. [65] I do not regard it as requiring either. The impact is insignificant from Mr Allen’s premises having regard to the generally aesthetically unappealing views available from within his house in the direction of the exhaust vent. Eighth Ground [66] The eighth ground (notice of appeal ground 10) was explained by the appellants. The appellants do not submit that sewerage pipes under the subject land are inadequate. The appellants submitted that sewerage pipes servicing the proposed restaurant and the premises beside it run downstream to join sewerage pipes servicing the Queensland Little Athletics Association offices and that sewerage pipes from Mr Allen’s home also join with the pipe servicing Queensland Little Athletics Association offices. There was once a discharge of sewage within Mr Allen’s land. His evidence was that he was told by a plumber who cleared the line in effect that there was a blockage at some unidentified place that was not below Mr Allen’s land but was caused by something downstream from it. If that plumber’s opinion was correct the blockage was not on or under the subject land. The appellants do not allege that the blockage was caused by a problem on the subject land. The appellant’s concern is that 60 people may use the premises on the subject land on occasions of peak capacity and imply that increased patronage may lead to an increase in the number who use the toilet facilities. The appellants are unaware as 36 Exhibit 3 behind tab 2 chapter 3 page 29. -- 15 of 17 -- 16 to whether any inspection or investigation has been done by Council to consider the possibility that sewerage will not be adequately disposed of. [67] The application does not involve the installation of additional toilets. The proposal complies with the Services, Works and Infrastructure Code, and particularly Performance Criterion P 1 by reason of its compliance with Acceptable Solution A 1. The Council does not raise any issue with regard to this matter. [68] No admissible evidence was led to support the submission that investigations are required. [69] The submission implies that the toilet at the subject land will be used more often if the application is allowed. I infer that patrons will use it serially. I am not persuaded that its use more times each day will have an adverse impact. Ninth Ground [70] The ninth ground (notice of appeal Ground 11) raises issues of vermin and noise. The washdown facility referred to is a facility required by Council as a condition of approval. The condition requires an ‘on-site refuse bin washing facility’ for food outlet refuse bins and the area must be provided with a tap, paved with an impervious material, graded and drained to a sewer subject to the requirements and recommendations of Brisbane Water. It is not required to be enclosed and is not proposed to be enclosed. The site proposed for this outdoor facility is closer to Mr Allen’s house than a washing facility which is currently on the subject land. It has been brought about 2 m closer to the subject land and the propose floor pad for the washdown area has been increased in size. The closest part of the proposed floor pad seems to be about 1.5 m from Mr Allen’s house. [71] The appellant’s made no submissions as to why the washing facility would create or increase a vermin problem would increase by shifting the wash-down area. The appellant’s called no evidence on the vermin issue. I do not accept that vermin will increase. I do not find that the movement will cause an adverse impact related to vermin. [72] With respect to noise, shifting the washdown area would bring the activity of bin washing closer to Mr Allen’s home. There is no evidence as to the noise it has or will create. However, in accordance with conditions of approval, there is now a condition that a 1.8 m acoustic barrier be constructed adjacent to the proposed bin wash-down area. It will be ideally positioned for the abatement of noise from that area for any occupant of Mr Allen’s home. [73] I am not satisfied that there will be any adverse impact from the proposed movement of the washdown area. Tenth Ground [74] The tenth ground of appeal relates to the appellants’ concern that the co-respondent is advertising the subject land for sale. The appellants apprehend that a new purchaser will ignore the conditions of approval, will allow more than 60 patrons and will remain open longer than the approved hours. They rely on an advertisement by the respondent’s real estate agent which falsely states that the premises will seat 65 and upon a conciliatory letter to Mr Allen from the respondent suggesting all -- 16 of 17 -- 17 noise will have finished by 9 pm as revealing an intent by the respondent and any purchaser from him to ignore the conditions of approval. I am not satisfied of an intent on the respondent’s part to breach conditions. I am not satisfied that the conditions will be breached by any person. This ground is not established. Conclusion [75] Subject to the conditions contained in the Decision Notice from Council amended to reflect the matters agreed at mediation I find that approval does not compromise the achievement of the desired environmental outcomes for the planning scheme area and does not conflict with the Planning Scheme. The appeal is dismissed and the application is approved. I adjourn the appeal to permit the Council and the co- respondent to finalise appropriate conditions of approval. -- 17 of 17 --