Calvisi & Ors v Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v. Brisbane City Council & Ors [2008] QPEC 45 [2009] QPELR 35; (2009)164 LGERA 119

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Calvisi & Ors v. Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v. Brisbane City Council & Ors [2008] QPEC 45 PARTIES: FRANCIS JOSEPH CALVISI JOAN CALVISI DIANA GRACE FAVELL (Appellants) v BRISBANE CITY COUNCIL (Respondent) and TOM DOOLEY DEVELOPMENTS PTY LTD (Co-respondent) and URBAN STRATEGIES PTY LTD (Co-respondent) GRAHAM MORGAN, MATHILDE MORGAN (Appellants) v BRISBANE CITY COUNCIL (Respondent) and TOM DOOLEY DEVELPMENTS PTY LTD (Co-Respondent) and URBAN STRATEGIES PTY LTD (Co-Respondent) NORMA UPHAM, PETER UPHAM (Appellants) v BRISBANE CITY COUNCIL (Respondent) and TOM DOOLEY DEVELOPMENTS PTY LTD (Co-Respondent) and URBAN STRATEGIES PTY LTD (Co-Respondent) FILE NO/S: 2594 of 2007, 2618 of 2007 and 2916 of 2007 -- 1 of 49 -- 2 DIVISION: Appellate PROCEEDING: Submitter appeals against development approval ORIGINATING COURT: Brisbane DELIVERED ON: 8 July 2008 DELIVERED AT: Brisbane HEARING DATE: 8, 9, 14-18 April 2008, 29, 30 May 2008; written submissions to 17 June 2008 (co-respondents) JUDGE: Robin QC DCJ ORDER: Appeals dismissed CATCHWORDS: Integrated Planning Act 1997 s 3.2.1 Submitter appeals against Council approval of development application for site in medium density living precinct within the New Farm Teneriffe Hill Local Plan – site adjacent to heritage places (one so listed after Council approved development of a larger, taller building in its place) – site itself contained another heritage place (16 storeys and 13 storeys in height) to be sub- divided off in approved reconfiguration – acceptable solutions in applicable Local Plan code of 5 storeys maximum height and plot ratio of one substantially exceeded by approved tower of 10 storeys – related performance criteria found to be satisfied – Local Plan prevailed over Brisbane City Plan 2000 so that general provisions under which proposal was high density rather than medium density living were not determinative – river views held “maintained” notwithstanding obstruction by the tower – whether the development application invalid for failure to include (1) an area of road to be closed and amalgamated with the site, (2) land owner consents (3) demolition of an undistinguished building on the site (because it was on a “heritage place”), (4) a material change of use to cover intensification of the use associated with the designated heritage place buildings on the site – issues included heritage, architecture, urban design and visual amenity – proposal considered to produce an acceptable “visual relationship” with neighbouring and nearby buildings. COUNSEL: Mr Favell and Mr A Taylor for appellants in 2594 of 2007 Mr Morgan in person Mr Upham in person Mr Hinson SC for respondent Mr Hughes SC, Mr Job and Mr Williamson for co-respondents SOLICITORS: Gail Malone and Associates for appellants in 2594 of 2007 -- 2 of 49 -- 3 Brisbane City Legal Practice for respondent DLA Phillips Fox for co-respondents REASONS FOR JUDGMENT [1] These three submitter appeals challenge the Council’s approval of residential development proposed by the co-respondents on a riverfront site in Moray Street, New Farm, No. 79. If the proposal is implemented, facing the street will be a 3- storey building, behind it on the River, a 10-storey one, said to present to the street as 8-storeys given that the rear of the site falls fairly steeply. The appeals were ordered to be heard together. Two similar appeals, 2556 of 2007 and 2991 of 2007, covered by that arrangement, were filed by Tostino Pty Ltd, as the owner of adjoining land immediately downstream from the site, on which is erected a heritage listed building known as Aville Court. The first co-respondent had contracted to purchase that property at the time when hearing of the appeals commenced, and has subsequently completed its purchase, but may not yet be the registered owner. Mr Lyons QC appeared for Tostino when the appeals were called on to announce that notices of discontinuance had been filed in its appeals, that notice of withdrawal of its submission had been given to the Council and advice that it no longer objected to approval of the development proposed by the co- respondents. [2] The appellants in 2594 of 2007, who were represented by Mr Favell and Mr A Taylor of counsel own the penthouse apartment in a 6-storey building called Bellerive, located across Moray Street from the site. Their views to and across the River to Kangaroo Point will be partially blocked by the 10-storey tower; they seek to restrict the height of it to five storeys, being the prima facie “limit” under the current planning scheme for this part of New Farm. [3] The Morgans own the apartment immediately below in Bellerive; they stand to be affected in a similar way by the proposed tower; they would have no view of water available above it, even at five storeys. The Uphams are not asserting any adverse impact of the proposal by reference to the amenity of Bellerive; they have property interests elsewhere in the New Farm/Teneriffe area and are defending a more general position against tall buildings proliferating in the locality. Mr Morgan and Mr Upham questioned witnesses and made submissions of their own, but generally speaking relied on the case presented by Mr Favell for the appellants in 2594 of 2007. [4] These appeals are replete with issues of a legal or technical kind identified by Mr Favell, such as the legal existence at relevant times of the “site”, and lack of owner consents required for the development application to be valid. While it may be seen as having a continuing physical existence, the site accommodating the proposed buildings is being created by a reconfiguration approved by the Council to subdivide off the upstream part where the landmark Gleneagles Towers (“Falcon House” and “Peregine House”) were constructed in the 1960s; it is being added to by incorporation of land on the riverbank designated public road (a road going nowhere) which at the time of the development application being made was expected to be closed – and now has been closed and amalgamated with the pre- reconfiguration site. Another issue concerns demolition of the Clive Burdeu Centre, a disused nursing home facility on the site, to make way for the proposed new -- 3 of 49 -- 4 buildings; the Centre (whilst said to lack merits of its own) is located on a heritage place, or shares a common site with a heritage place, thanks to the listing of Gleneagles Towers, so that its demolition raises special questions, particularly if it is not duly authorised. While demolition may be thought implicitly included in the approval under appeal, it is difficult to discern here the usual permit to demolish granted on an application in that behalf in the “suite of approvals to facilitate the redevelopment” which Mr Hughes SC for the co-respondents referred to in his opening (transcript p 4 line 24). Unauthorised demolition of a heritage place may attract the penalty that nothing taller may be erected in substitution. Responding in writing to further written submissions provided by Mr Favell in June 2008, Mr Hinson SC for the Council recorded (para 4) that the development application sought a preliminary approval for demolition (building work). I take it that reliance is placed on reference to “Building works on and adjoining a Heritage Place” in exhibit 10C pp 96, 117. [5] The matters referred to in the preceding paragraph will be addressed in due course. The central concern of the appellants is with the bulk of the proposal, the height of the tower in particular. The developer claims an indulgence by reason of the proposal’s location adjacent to Peregrine House (16 storeys); Falcon House (13 storeys) is the somewhat further upstream “neighbour”, being both more remote and on Moray Street rather than on the River; constructed on higher terrain, Falcon House presents as similar in height to Peregrine House, except from close up vantage points on the River side from which storeys can be counted. [6] Building heights have been a matter of concern to residents of New Farm and Teneriffe, numbers of whom have applied pressure over the years to get them restricted. The predecessor of the New Farm Teneriffe Hill Local Plan incorporated in the Brisbane City Plan 2000 was a similarly titled Development Control Plan introduced into the City of Brisbane Town Plan 1987 in 1996, amended in 1998. Mr Buckley’s planning report, relied on by the appellants, describes the planning arrangements then produced as follows: “… at that time [April 1998] the subject land was within a precinct referred to as Precinct 3 – High Density Living. At 3.3 the intent for residential development in the High Density Living precinct states as follows: ‘Residential Development This precinct includes property previously zoned for medium-high residential density uses. It is intended to be developed to the highest densities of any of the precincts in the plan area, taking advantage of high levels of accessibility and visual amenity which characterise the location of land in this precinct. Only a small part of the plan area is included in this precinct. The emphasis in this precinct is to allow for a high density housing character which is well designed and appropriate to Brisbane’s climate. -- 4 of 49 -- 5 Accordingly, while acknowledging that under the previous zoning no height limits applied to development in this area, the intent of this plan is to limit height in the precinct to five storeys with a range of housing types providing a desirable residential living environment. Housing servicing the needs of a wide range of residents, particularly those of an aging population, such as retirement villages, will be encouraged in this area …’ The provisions for building height applied at the time was for buildings to be a maximum of 5-storeys. Gross floor area was not to exceed 1.0.” His view (with which I cannot agree in the end) is that those arrangements have been carried over into the present ones. In that regard the coming into force of provisions of the Integrated Planning Act 1997 (IPA) must be considered. Nothing can be prohibited by a planning scheme. See s 2.1.23(2), also s 6.1.2(3) and s 6.1.9(3A). [7] In the era of no limits on height, not only were Gleneagles Towers constructed, but also other buildings of similar height and greater bulk, such as Bowen Place, of 14 storeys, Princeton Place (133 Moray Street) of 11 storeys and River Manor (16 Moray Street) of 10 storeys. Those are all (like the site) in the major upstream part of the precinct whose north-east boundary steps back from Bowen Terrace to Merthyr Road, whose south-west boundary follows the river as far as Julius Street, then moves away towards Merthyr Road. In another part of the precinct at Griffith Street and Oxlade Drive are more such lofty structures, notably Glenfalloch of 15 storeys and Kiribilli (11 storeys). Nearby is Abbotsford, in Mountford Street (10 storeys). The number of 7, 8 and 9 storey buildings is greater. Bellerive is another development approved in that era. The “Lay” Witnesses and Expectations [8] Exhibits 54 to 61 are affidavits sworn by submitters opposed to the co-respondents’ proposal, none of whom was required for cross-examination. The deponents are Ms Buchan, Ms Pugh, Drs Orazio and Jukasz, Mr and Mrs Hughes, Maaike Vromans and Ms Fynes-Clinton. Exhibit 62 is a longer affidavit of the appellant, Mr Calvisi who was the builder of Waters Edge (referred to elsewhere at paragraph [12]) and (for his family) of Bellerive, as to which he notes, in a passage revelatory of the vagaries and ironies encountered in the planning world the (then): “high density zoning in the area. There was no height limit prescribed but Council was restricting buildings to 10 storeys in height. 3. At about this time the Urban Renewal Task Force and Council were undertaking the community consultation and implementation of the New Farm and Teneriffe Development Control Plan. As a result of that community consultation reduced height limits of 5 storeys were proposed for the New Farm Development Control Plan. -- 5 of 49 -- 6 Although the provisions of the Development Control Plan did not apply to 72 Moray Street at this time, Council sought to restrict the building to 5 storeys. Following discussions with Council we agreed to a 6 storey development instead of the 10 storey development that was permitted. Despite our reduction to 6 storeys Council still would not approve the development and my father appealed against the deemed refusal to the Planning and Environment Court. The application was approved by the Court in 1996. The building was completed in late 2001. 4. In agreeing to restrict the height of our development to 6 storeys, we took comfort in the fact that with the new height restrictions imposing a 5 storey limit in the area, and the elevated position of 72 Moray Street, the views and outlook from my parents’ residence/apartment would not be impacted upon by any future development in the vicinity even if that future development was built to the 5 storey limit.” Ms Pugh resides in another “historical” taller building of 7 storeys. The deponents, among their number refugees from the “concrete jungle” of Kangaroo Point, speak of more than expectation that a 5 storey limit will be enforced, they took it to be an inflexible one, they report assurances attributed to Council officers to that effect, and even, specific to the present application, that there was “no way” 10 storeys would be approved. A number suggest they purchased where they did in New Farm in reliance on a 5 storey limit on development. Establishment of the supposed limit in the mid 1990s was seen as a victory for local sentiment, which sentiment the court is satisfied still persists. There is a local animus against high rise per se, as destructive of the “charm and attraction of this suburb”; more practical or mundane concerns about traffic and parking congestion are ventilated, concern for the safety of elderly residents of Gleneagles Towers. Dwarfing of neighbouring heritage buildings is complained of and the adverse effect of a 10-storey building on vistas of the River, City and Story Bridge. There is an understandable (but inaccurate as a matter of law) view that the approval under appeal sets a precedent. One deponent fears an avalanche of high rise along the River. There is opposition to “erecting taller buildings so we can cram more people in than the area can sustain”. One asserts that in the Local Plan “there is a prohibition on buildings in excess of 10 storeys”. That last proposition, doubtless to the consternation of many (probably most) in New Farm is incorrect. [9] In some respects the concerns about the application are overstated. From Moray Street at ground level there are no vistas whatever. The occupiers of this stretch on the River side have been successful in implementing an apparent collective determination that no passer-by in the street will get so much as a glimpse of the River – so there is nothing to be lost. Fears of this development cramming people in are groundless. The proposal is essentially for one residential unit per floor, which no doubt the market will bear – a marked contrast to Peregrine House and Falcon House, which each provide four modest residences per (smaller) floor. [10] The court is required to take into account submitters’ views, so far as they have been made known. This I have set out to do. The submitters may take some -- 6 of 49 -- 7 comfort from the IPA’s stipulating that in this appeal it is not for the appellants to show that the appeals should be allowed, it is for the co-respondents to show that each appeal should be dismissed: s 4.1.50(2); they have to satisfy the court that their development application deserves approval. [11] In these appeals other approvals are not to be regarded as precedents. Every development application to be considered on its own merits in its context, but it would be unrealistic to ignore entirely the pattern of approvals in the area. This may impact on the expectations that informed people would have of the planning future. While City Plan in terms respects “realistic expectations”, for example in chapter 2 s 4.2.2.1, expectations have always had to confront possibilities of relaxations being granted, land being rezoned, planning schemes being changed. Mr Hayes demonstrated a pattern of approvals to 5 storeys (or lower) in the local and wider New Farm area in recent years (even that represents unwelcome intensity for some deponents). The observation was justly made that there is little remarkable here. In some cases, the sites could accommodate nothing higher, in others the sites backed directly on to others in a lower density residential precinct and would have had to contend with requirements to respect that. Further, by meeting the acceptable solution, developers simplify life for themselves: they have no need to embrace the costs, uncertainty, trouble and delay facing them if they sought to build higher and so were forced to impact assessment. [12] The co-respondents and the Council rely on an emerging pattern being set by less timorous developers who have persuaded the Council to issue approvals for the following: (i) Vietri Apartments, 18 Moray Street (6 storeys) on 443 m2 ; (ii) Altura, 41 Moray Street (6 or even 7 storeys viewed from the river and roof) on 792 m²; (iii) Barker Street Apartments, 75 Barker Street (7 Storeys); (iv) Julius Street Apartments, 10A Julius Street (6 Storeys) on 438m²; (v) Waters Edge Apartments, 33 Griffith Street (6 Storeys viewed from the street and 7 when viewed from the river) on 1118m2 ; (vi) Platinum Apartments, 166 Oxlade Drive (7 Storeys) on 1677 m²; (vii) Aville Court Apartments, 91 Moray Street (6 Storeys when viewed from the river) on 1366m2 , and (viii) Ciel Apartments, 69 Moray Street (8 Storeys) on 1681m 2 . The appellants in 2594 of 2007 and the developer of Waters Edge1 may fairly be seen as related. The instances listed should be enough to disabuse those still harbouring expectations in terms of any inflexible 5-storey limit. But some caution is required. The point is that there is no 5-storey limit. None of the eight instances comes anywhere near 10 storeys. There may be room for argument whether storeys have been counted correctly for the listed projects. In some instances Mr Calvisi’s count and/or Mr Hayes’ count may be different; it can depend on which elevation one looks at. There is no component of Ciel which is 8 storeys – there may be none exceeding 5: the appearance of 8 is given when viewing the whole development from the River. The parties have taken (internally) inconsistent positions about 1 Which has its own history in the court preceding the approval: Hayday Pty Ltd v Brisbane City Council [2006] QPELR 40 and 261. -- 7 of 49 -- 8 numbers of storeys, as to whether what matters is appearance or some objective count. At some point, all have espoused the latter. Barker Street (another Tom Dooley Developments proposal) is said by Mr Calvisi, concerned about its impact on views from Bellerive, to be “maybe 8 storeys (depending on how you count it)”; the approval is under appeal in the court. Barker Street is adjacent to Bowen Place. There is a difference in substance, if not in principle, between exceeding a 5-storey benchmark by one or two and doubling it – as to which it is correctly pointed out that the appearance of 10 storeys is from the River side only; from Moray Street, the tower will present as 8 storeys – which is not to gainsay the awareness people are likely to have, psychologically, of the additional two. Right to a View? [13] There is no right to a view from one’s property in Australian (or British) law. That has been clear since Coke who noted that: “Prospect … is a matter only of delight, and not of necessity, no action lies for stopping thereof, and yet it is a great commendation of a house if it retains a long and large prospect but the Law don’t give an action for such things of delight.” in reporting Aldred’s case (1611) 9 Co. Rep 57(b). See Baalman, No Easement for Prospect, (1942) 16 ALJ 126. It is very much open to question whether, with us, it is possible for there to be any right corresponding with the Roman law servitude of unrestricted view (servitus ne prospectui offendatur) (Ibid). [14] In our own times, in Hunter v Canary Wharf Ltd [1997] AC 655, Lord Goff of Chieveley said at paragraph 8: “As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls. Moreover, as a general rule, a man’s right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour’s enjoyment of his land. The building may spoil his neighbour’s view … nevertheless his neighbour generally cannot complain.” The appellants’ case is that relevant planning controls protect their present views from their properties, which are lots in Bellerive, where the Morgans are on the 5th floor, the Calvisi appellants on the 6th . Their views will be markedly affected by adding a tower of any more than four or five (as the case may be) storeys planted in the way as they look towards Kangaroo Point across the River. The Uphams, as noted elsewhere, are less favourably located in Bellerive, but nevertheless oppose development of the height proposed, or anything exceeding 5 storeys. Local Plan provisions [15] Provisions protecting views are unusual in Brisbane City Plan 2000. Those that try include the Kangaroo Point Local Plan, whose predecessor was considered in Cromar Pty Ltd v Brisbane City Council [1996] QPELR 84; it approaches the issue in different ways from the New Farm Teneriffe Hill Local Plan, containing the -- 8 of 49 -- 9 presently pertinent Code which for the applicable Medium Density Living Precinct provides: Performance Criteria Acceptable Solutions P1 New buildings must maintain views to and from the River and other landmarks identified on Map A – New Farm and Teneriffe Hill, while maintaining a visual relationship with other buildings in the vicinity A1.1 Building height is no more than 5 storeys, and 15 m above ground level to the underside of the ceiling of any habitable room. A1.2 Where the proposal includes removal or demolition without Council approval of a heritage place listed in the Heritage Register Planning Scheme Policy, the height of any proposal on the site is not more than the height of the demolished heritage place. Gross floor area P2 Building size and bulk must be consistent with the medium density nature of the locality and retain an appropriate residential scale and relationship with other precincts in the plan area. A2.1 Gross floor area does not exceed the area of the site. A2.2 Where the proposal includes removal or demolition without Council consent of a heritage place listed in the Heritage Register Planning Scheme Policy, the gross floor area of any proposal on the site is not more than the gross floor area of the demolished heritage place Building design P3 New buildings on a site must be comprised of individual structures A3.1 Spaces between buildings within the site are provided with a separation distance of 5 m A3.2 Building walls within the site do not exceed 10 m in length Street setbacks P4 Street setbacks must be compatible with existing setbacks in the area A4 Building setbacks from the road alignment are not less than 6 m River access P5 Visual and A5 Public access along the -- 9 of 49 -- 10 physical links must be provided to and along the River and ferry terminals and in particular, between Merthyr Park and Oxlade Drive River north of Merthyr Road is provided and pedestrian access to ferry terminals is improved The relevant “landmarks” are the Story Bridge, New Farm Park and the Holy Spirit Church. For the site, P5 may be seen as a dead letter. The Code has the following introduction: “5. New Farm and Teneriffe Hill Local Plan Code This Code provides additional and/or alternative Acceptable Solutions to the Codes in Chapter 5 and takes precedence over the Codes in Chapter 5. The purpose of this Code is to ensure that development in the Local Plan area is consistent with the development principles and precinct intents of this Local Plan. In assessing the appropriateness of a proposal that varies from any Acceptable Solutions of the relevant Code/s or the provisions of this Plan, consideration will be given to: ● the likely social impact and proposed means of mitigating that impact. ● the community benefit, to the extent the variation would assist in the provision of cultural or community uses, special needs housing or low cost housing, enhanced access for people with disabilities, or the retention of places of heritage value or performing an important social function. ● the particular characteristics or needs of the user group/s for which the development is intended.” [16] This follows the Local Plan provisions setting out what is intended for the various precincts, including: “3.3 Medium Density Living Precinct It is intended that this precinct be used predominantly for medium density residential use, taking advantage of the high levels of accessibility and visual amenity that characterise the land in this area. Where possible, development proposals should provide visual and physical links to the river. The opportunity for public access is to be retained along the river frontage of new development in the area north of Merthyr Road. -- 10 of 49 -- 11 New development is to provide car parking in basement or semi- basement areas as far as is practical, to reduce the visual impact of cars on the streetscape. Non-residential uses that provide local community services are encouraged where the proposal is compatible with the surrounding residential neighbourhood. New non-residential uses should be incorporated within a mixed use development where the predominant focus is on the residential component. Existing non-residential uses can continue to be used for appropriate non-residential uses.” There is an Introduction “1 Introduction This Local Plan contains specific additional Local Planning requirements. Where it conflicts with the requirements of the City Plan, this Local Plan prevails. In using this Local Plan, reference should also be made to Section 1.1 – Using a Local Plan at the front of this chapter. 2 Development principles 2.1 Planning goals 1. Encourage the retention and enhancement of the existing social character and sense of community. 2. Encourage a modest population increase. 3. Encourage the retention of New Farm’s characteristic diversity of built form and village feel. 4. Ensure that infill development and redevelopment is compatible with new Farm’s established character. 5. Encourage the retention, protection and enhancement of items of historical, cultural and social and landscape significance. 6. Encourage mixed use activities serving the needs of the local community and local employment/business opportunities. 7. Maintain a diverse mix of housing and encourage the retention and provision of low cost housing. -- 11 of 49 -- 12 8. Minimise significant adverse impacts from residential and non-residential development. 9. Ensure compatibility between land uses and the capacity of the transport network to reduce the need for multiple trips. 10. Encourage the use of alternative modes of travel to the private vehicle, while ensuring safety and convenience for all users including those with disabilities. 11. Provide an attractive and integrated system of public spaces responsive to the needs of residents and visitors.” The “principles” include: “2.2.3 Character and sense of place Desired outcomes 1. The area is distinctively New Farm, attractive and appropriate to its environmental and cultural context. 2. The built form promotes comfort and is of a human scale. Principles 1. Development should contribute to the distinctive and identifiable character and sense of place of both local neighbourhoods and New Farm as a whole. 2. Development should complement the existing urban and landscape characteristics and cultural associations important to New Farm. 3. Significant views and vistas are protected where possible. Buildings are located and designed so they form strong and attractive vistas and memorable landmarks. 4. Development should be compatible with, and appropriate to, its physical, historical and cultural setting.” (2.2.6 is Heritage and cultural identity.) [17] The co-respondents and the Council emphasise “where possible” in 3 immediately above, “predominantly” in the intent described for the precinct. These terms import a degree of flexibility. P1, as for any performance criterion, must be read in its context. That it provides no guarantee of views being preserved unimpaired is clear from reference to the accompanying acceptable solutions. A 5-storey building on a site (where 10 storeys are proposed) will inevitably impair river views from across Moray Street, just as the Gleneagles Towers foreclosed potential views – more pertinently, as other buildings approved and constructed in the precinct since the 5- -- 12 of 49 -- 13 storey standard came in, which exceed that standard, or the 15 m to ceiling standard, do. Other City Plan provisions [18] The planning arrangements for Brisbane are said to be “performance based”. It is expressly provided that acceptable solutions set out are not the only ways of satisfying scheme requirements. Chapter 5 page 3 of City Plan provides: “Performance Criteria and Acceptable Solutions The Acceptable Solutions are in the right hand column of the Code table. In some cases meeting an Acceptable Solution requires compliance with Australian Standards or the Plan’s Planning Scheme Policies. For self assessment a proposal must comply with all specified Acceptable Solutions. For code assessment a proposal that complies with all Acceptable Solutions will be approved. 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. 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. Notes may be included in specific Performance Criteria or Acceptable Solutions highlighting: ● other legislation that may also need to be complied with ● local laws that may also need to be complied with ● the reporting procedures that may assist in demonstrating compliance with particular Performance Criteria or Acceptable Solutions. For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria. A proposal that fails to comply with the Performance Criteria, except in -- 13 of 49 -- 14 insignificant details, will be refused where it cannot be conditioned to mitigate impacts.” [19] Such arrangements may frustrate the understandable expectations of those who consult acceptable solutions in the planning scheme to ascertain what development may be approved in areas of interest to them. Acceptable solutions provide developers with assurance that compliance will procure approval; they can take their chances, if they elect not to comply, in respect of demonstrating that their proposals meet performance criteria. Human nature being what it is, a common pattern is that people will prefer and expect others to comply with acceptable solutions, but appreciate the flexibility of being able to circumvent them by satisfying performance criteria in other ways in respect of development proposals of their own. It is made clear by provisions following those last quoted that Local Plans (whether in respect of self-assessment, code assessment or impact assessment, for the last of which, by 1.1.3, listed relevant codes include the Heritage Place Code, Residential Design–Medium Density Code and Residential Design–High Density Code, are important. “These level of assessment tables and Codes may be varied by the Local Plans in Chapter 4.” The Council and co-respondents argue, and the court ultimately agrees, that relevant performance criteria in the Local Plan are satisfied. The appellants argue that it makes a mockery of the whole notion of the Medium Density Living Precinct which represents the highest residential density recognised in the Local Plan. They rely on general provisions in City Plan Chapter 2 regarding the residential neighbourhoods in Brisbane: “4.2.2 The response Residential neighbourhoods are the most extensive of the City structure elements. They contain the elements that help make Brisbane so livable: the residential areas and related amenities and facilities such as convenience shopping, local parkland, schools, churches, hotels and clubs. The components of the residential neighbourhoods strategy are to: ● meet realistic expectations of future amenity ● ensure housing choice and affordability ● promote increases in density near high quality public transport and close to the City Centre ● maintain character ● provide access to services and facilities ● maintain lands of environmental or scenic value ● discourage isolated subdivisions in developing areas and encourage land amalgamation and forward planning of neighbourhoods ● provide for some mixed use development ● coordinate the orderly and cost effective provision and augmentation of infrastructure. 4.2.2.1 Meeting realistic expectations of future amenity -- 14 of 49 -- 15 People should be able to choose their residential location with realistic expectations for the future amenity of the area. The Plan’s strategic directions in this regard are to: ● prevent intrusion of development that could seriously detract from residential amenity ● allow development that complies with the Plan ● mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy ● ensure new residential development contributes to pleasant living environments and is designed to integrate with, rather than be segregated from, existing development in the area ● avoid through traffic in residential locations ● ensure residential neighbourhoods are adequately buffered to mitigate impacts of industrial and other non-residential uses. ● protect views from the impacts of development only where nominated in a Local Plan, or where development exceeds the relevant Code’s acceptable solution for building height, and as a result detracts from views from nearby properties.” Italics have been added. For what it is worth, in these appeals it cannot be said that it is the excess over five storeys that detracts from views, given that a five storey structure would detract from the view of the river to the same extent in practical terms. [20] Chapter 3 describes the intent of the high density residential area: “5.6.1 Intent High Density Residential Areas are located close to the City with very good access to public transport and facilities. High Density Residential Areas are in locations with outstanding views to the Central City or Brisbane River. Development will be to a maximum plot ratio of 1.5. Development will be no higher than 10 storeys and will address the street.” The foregoing is apt to describe the present proposal in its context, rather than the corresponding intent for the Medium Density Residential area: “5.5.1 Intent Medium Density Residential Areas are located in near City locations with good access to public transport and centres. Medium Density Residential Areas will accommodate single unit dwellings and multi- unit development up to 5 storeys. On steeply sloping sites development will ‘step down’ the slope. Development will have a maximum gross floor area of 80% of the site area. -- 15 of 49 -- 16 5.5.2 Desired Environmental Outcomes 1. Medium density living environments predominantly comprise medium rise, medium density buildings of no more than 5 storeys. 2. The Area has a mix of dwelling types and sizes at different levels of affordability with adequate safety, privacy, quiet and comfort. New residential developments are well designed and sensitive to the City’s climate and take advantage of attractive views and aspects and address the street. 5.5.3 Level of assessment – Medium Density Residential Area and High Density Residential Area ● this level of assessment table applies to the Medium Density Residential Area and the High Residential Area ● if the site is in a Local Plan area, the Local Plan may change the level of assessment and/or the Applicable/Relevant Codes identified in this table ● for the following Local Plans the level of assessment is determined by checking this level of assessment table, and then checking the level of assessment tables in the relevant Local Plan to determine whether the Local Plan changes the level of assessment ● some Local Plans contained Codes. These Codes provide additional and/or alternative Performance Criteria and Acceptable Solutions to the Code in Chapter 5 and take precedence over the Code in Chapter 5.” The residential design – Medium Density Code (chapter 5) applicable in assessing a material change of use and/or building works for a multi-unit dwelling in a medium density residential area has among its performance criteria an acceptable solution: P2 Building size must be consistent with the intentions for the Area A2.1 Maximum gross floor area is ● up to 0.8 times the site area, where the site area is greater than 1,200 m2 OR ● GFA = (1.2 times site area) – 480, where the site area is less than 1,200 m2 , where GFA and site area are both expressed in square -- 16 of 49 -- 17 metres. A2.2 The site area is a minimum of 800 m2 and has a minimum frontage of 20 m A2.3 Building height at any point is no more than: ● 15 m from ground level to the underside of the ceiling of any habitable room ● 5 storeys above ground level A2.4 Building length is no more than 30 m in any direction” Without reference to chapter 4, the conclusion must be that the proposal would face extreme difficulty in gaining approval. It represents high density development (at the top end of the range), not medium density development. The expert evidence [21] For the appellants, Mr Buckley gave planning evidence, contrary to that of Mr Humphreys for the co-respondents and Mr Brown for the Council. His approach comes down to the proposal being high density residential development under City Plan 2000, which is not acceptable in New Farm, in his view, although in the past it was. He commenced his town planning assessment with this overview: “The principal planning issues in these appeals relate to height, and overall floor space. More particularly, the merits of this application from a planning point turn on the policy intent and provisions of successive planning schemes with respect to building height and profile, and the way that this policy is intended to be implemented. Development applications involving height as an issue impact on an individual’s perception of amenity and character. Throughout Queensland and particularly in areas subject to strong growth, the community’s understanding of impacts of buildings on their familiarity with their local area, and expectations about how a local area may change, are directly related to an understanding of building height. It is the building dimension which is easily understood and because the majority of Australians live in low rise structures, anything above a low rise structure gains the attention of residents and visitors alike more than any other building parameter. It -- 17 of 49 -- 18 generates energy and emotion with respect to particular outcomes in any area. Across two planning schemes extending from the coming into force of the Local Plan for New Farm and Teneriffe Hill under the 1987 Town Plan (in 1998) up to the current regime under Brisbane City Plan 2000, there has been a consistent theme relating to: • the style of living for New Farm; and • building height.” The two “dot points” are related, so that, for example, the height of the proposal is assessed as out of character for New Farm. Mr Buckley concluded: “Both City Plan and its predecessor sought to establish a building profile for New Farm that balanced the aspirations of increased residential densities with enhancing and preserving the special character of New Farm. The special character is acknowledged in the planning documents and is considered to be the determinative planning consideration in these appeals. When the scheme is read as a whole, including an acknowledgment of the differences between Medium Density and High Density Residential development, it is considered the development goes way beyond acceptable variations of the relevant codes. For these reasons, the application is considered inappropriate from a planning point of view.” [22] Reference must be had to Chapter 4 and the New Farm Teneriffe Hill Local Plan in particular whose introduction proclaims it “prevails” if there is conflict with other City Plan requirements. Their precedence is acknowledged in 5.5.3 of City Plan, set out in paragraph [20], in the “dot points”. [23] The appellants say there is no conflict, and that, accordingly, the general provisions for Medium Density Residential areas in City Plan apply. That the developer could comply with both the Local Plan and those general provisions does not mean there is no conflict. It prefers to propose more intensive development, which the Local Plan arguably allows, the general provisions do not. As to building size, the Residential Design Medium Density Code Performance Criterion picks up the “intent” of a 5-storey limit. The Local Plan brings it in only as an acceptable solution, acknowledging that there can be other ways of satisfying the associated performance criterion. The Code specific to the Medium Density Precinct intriguingly avoids use of “Area” with a capital “A” (compare P2 in the general code), referring to “the area” with a lower case “a”, which in my opinion has the same connotation as “the vicinity” in P1 or “the locality” in P2, and is not to be taken as a reference to the “Areas” dealt with in the City Plan generally so as to render applicable planning requirements specific to those Areas by some operation of Local Plan provisions. -- 18 of 49 -- 19 [24] The contention that the proposal under consideration in these appeals would represent high density rather than medium density residential development is true enough, but is beside the point as it is the Local Plan that governs. If “conflict” need be identified, I think that it exists. [25] To describe the proposal as typical high density residential development may be to understate things. Lot 2 is fairly narrow. Mr Hayes demonstrated by exhibit 52 that if the High Density Code acceptable solution apposite was applied in relation to side boundary setbacks, being three metres for (not quite) three levels, then half the building height, there could be nothing above 7 levels and levels 5, 6 and 7 would have be reduced to something like ¾, ½ and 1/3 of their current width. It is fortunate for the developer that the city wide High Density Code (which doubtless encompasses less prescriptive ways of satisfying performance criteria) applies no more than the “medium density” one does. These observations, however, impress on the court just how radical a departure from the preferred acceptable solution is proposed here for meeting the performance criterion. [26] Those views of Mr Buckley’s might on their face seem compelling, but they make insufficient allowance for the performance based nature of City Plan and for the fact that for purposes of these appeals, one really does not get beyond the Local Plan; there is no occasion to resort to the general parts to explain the Local Plan – to explain what is meant by “medium density residential”, for example. [27] Otherwise, setting aside the lay witnesses, the appellants relied on Mr Hayes, who produced separate reports dealing with heritage, architecture, urban design and visual amenity to counter those ranged in a phalanx against him by the co- respondents, Messrs Riddel, Robinson and Simpson and Dr Hassall; less expansively, the Council presented Mr Scott’s reports bearing on heritage and architecture. [28] Exhibit 9 was Mr Holland’s traffic report, dealing with some more mundane issues which (I hope I am right) the court need not resolve: in any event, the evidence is all Mr Holland’s way. No traffic issue stands in the way of the proposal being regarded as acceptable. [29] The relevant Heritage Place Code provisions are: “Performance Criteria Acceptable Solutions P1 The proposal must not damage the cultural heritage significance of the heritage place, but provides for its future protection A1 A report accompanying the application that verifies the proposal has been prepared in accordance with the Australia ICOMOS Charter for the Conservation of ‘Burra Charter’ Places of Cultural Significance 1998 -- 19 of 49 -- 20 P2 The proposal must be based on, and take account of, all aspects of the cultural significance of the heritage place A2 A report accompanying the application that verifies the proposal has been prepared in accordance with the Guidelines to the Burra Charter: Cultural Significance P3 The proposal must protect the fabric and setting of the heritage place, while providing for its use, interpretation and management A3 A report accompanying the application that verifies the proposal has been prepared in accordance with the Guidelines to the Burra Charter. Conservation Policy. P4 The proposal must be based on the issues relevant to the conservation of the heritage place, with appropriate opportunity for community comment on the findings A4 A report accompanying the application that verifies the proposal has been prepared in accordance with the Guidelines to the Burra Charter: Procedures for Undertaking Studies and Reports 3.2.2 Development on land adjoining a heritage place Performance Criteria Acceptable Solutions Operational work or changes to buildings P1 Views of the heritage place identified as significant in the Heritage Register citation must not be impaired by any aspect of the proposal, including landscape and building elements. A1 No Acceptable Solution is prescribed Subdivision P2 The subdivision pattern must not result in buildings that would impair visible attributes of the heritage place identified as significant in the Heritage Register citation. A2 No Acceptable Solution is prescribed” -- 20 of 49 -- 21 [30] Mr Hayes was in the witness box for the last day of evidence (29 May 2008) separated by almost six weeks from the others. There is inevitably a good deal of overlap among the four areas of expertise which he dealt with; there were some advantages in having a single expert and I would pay appreciative tribute to Mr Hayes for the thoughtful and impressive nature of his contribution, from one who has the advantage of long familiarity with and practical experience in life and development in New Farm. He collected a lot of threads together as the hearing came to its end. No disrespect is meant to his counterparts in my use of extensive quotation from his evidence-in-chief as indicating helpfully the considerations for the court (the numbers in square brackets indicate a page in that day’s transcript): “[8] items of urban design are raised as being part of how an area works and they talk about landmarks, they talk about corridors, nodes, edges, and so as you travel along a road you see the edges of buildings, you see landmarks and things like that, … a visual relationship could be to do with being adjacent to a landmark and, as such, you would have to be conscious not to ruin the existing relationship of the buildings that exist. … A building would have some form of, I suppose, connection to adjacent buildings, you know, so that there was a pattern to the visual sense of the buildings side by side. The statutory plans talk about being sympathetic to adjacent buildings as in heritage. If a new building is adjacent to a heritage building the visual relationship must be one of support - rather than an overpowering or a demeaning. [9] Heritage buildings are important … it’s about a cultural background. The existing buildings on Gleneagles, the 2 towers were seen as a pair of buildings and as such one of the landmarks of New Farm. It’s a case not to destroy that sense of landmark, so that would be a - in relationship to height and bulk and scale that would be in relationship to height and bulk and scale adjacent. There is the traditional way of looking at visual relationship with heritage buildings that you don’t block the view of it but a heritage building is more than just a piece of bricks and mortar. It has meaning beyond. [10] A new building should accommodate the scale of the 2 buildings [adjoining it on the south-eastern side] from large to small. It should not destroy the sense of landmark of the original Gleneagles pair. The proposal … is virtually the scale of Gleneagles. It’s, in visual terms on the site elevation … twice the bulk. It’s twice the width. In fact it’s a scale of both of those buildings put together rather than a single one. … And then when put in context with both its adjoining neighbours it creates a kind of lopsided clutter in a way. … I could say it retained a visual relationship which was poor, as opposed to a good visual relationship. -- 21 of 49 -- 22 And I take it you take the criteria to be something – a requirement or a criteria to maintain something other than a poor relationship? – I – I feel … that most things try to make things better rather than worse. [11] Once the Local Plan is compromised to the extent of doubling what would be an expectation then I feel that this performance criteria would be a very poor solution for the increased height. It doesn’t offer a positive solution to that performance criteria. [15] Thank you. Mr Hassell, in his evidence, I think, was talking about a loss of nine degrees out of 270 degrees of views if the proposed tower went ahead. Are you able to comment on that? -- It’s sounds like a little bit nine degrees but in point of fact it depends on where your relative position is and say, for example, this photograph on page 18 of this report, it shows that, in fact, the loss of view is probably more like 20 per cent – or 25 per cent or something like that but it is also more significantly – and it’s right in the mid point of your view, you know, so therefore it’s like going to the football and having a post in front of you because the post is not taking up much of your view but it’s actually – it’s ruining your day at the football because you – although you can look around it and you can see bits and pieces you’ve always got this post in front of you and so it would not be considered a good seat. [16] 170 Oxlade drive was probably the first building to be granted an approval which had a seven storey component and a five storey component and so it had the five storey component adjacent to the adjoining building and had the seven storey component adjacent to Glenfalloch which is another high rise heritage building and it was built at a similar time to Torbreck and it’s a 14-storey building and so while it was a seven-storey building there was no compromise of its landmark status as a large modernist block beside the ferry and so that building then probably was the first one to significantly argue a performance-based solution rather than the acceptable solution of the five storeys and that was based on the fact that across the road was zoned LMR which was three storey max so the extra two storeys probably had no impact on views as such. [23] Thank you. Mr Riddel, when he was commenting on your heritage report, said that the impacts which you mention are not really heritage impacts. Are you able to make any comment about that? -- Yes, … I suppose, it’s the difference between a high technicality and the sort of essence of what heritage building is. I think Mr Riddel … argued the fact that the statement of significance did not say that the sidewall, I think, of Watsonia and Aville were of particular significance, I think. I’m not entirely sure of this because I’m going back to six/seven weeks ago when we were going through those things carefully– and so my sense of looking at impacts on the heritage buildings takes into account the heritage code but also other parts of the City plan which make reference to, in the beginning the -- 22 of 49 -- 23 local character thing to development principles and – so what I’ve done is I’ve combined those sort of development principles which make reference to heritage and – heritage and character and in some ways – you can define it and you can say that heritage and character aren’t the same but character and heritage are, I believe, very connected because … they both come from the same desire of a community to have respect for things which, they believe, are important within their localities and heritage, it’s like high church and low church. You know, so there’s a [24] gradation of – by some people held of the importance of the exact high level significance of heritage versus what its sense of place is and so I talk about the impacts of the proposed development overshadowing it and impacting on the adjoining heritage buildings but if I was to take exact significance statement as set out in the City plan it may not refer to that exactly … so in some ways, as I said, I believe that heritage is about the building and I think a comment was made that – you have see heritage for it to be heritage. Now that’s one way of looking at heritage in an isolated academic way but for communities and for neighbours, heritage is about buildings which people like – so, for example, that means that you could have a heritage building and you could totally cover it with a new building. Totally bury it inside a new building and it would still be heritage but the new building would be okay as well under that guise but in terms of, I believe, what I believe is the more common approach to heritage is that is about the essence of the building itself and the enjoyment of that building is part of streetscape in the local area … the City plan now there is a heritage code and then there was also an adjoining heritage code. So it’s seen now as important within the City plan legal framework that if you build on a site adjoining a heritage building that it has to be taken into consideration, its impact on that heritage building and rather than saying that the heritage building doesn’t have to be seen to be strict heritage. And does this proposal have an impact on adjoining heritage buildings, in your view? – I believe that the style of this development creates an impact on the smaller scale adjoining buildings. … I believe that the sense of overpowering on that is quite strong and it does have an impact and, in fact, I think is quite strong and it does have an impact and, in fact, I think Mr McDonald in his original heritage report which was part of the application to the council, he makes reference that it will have impact although then later on he says that the impact is not too great.” Heritage – Demolition of a Building on a Heritage Place [31] One of the asserted defects in the development application relied on in the appellant’s case is that “as made and advertised [it] did not make application to -- 23 of 49 -- 24 demolish a building erected in a heritage place.” It was contended that the approval suffers the same defect. The proposal depends on removal from the site of the Clive Burdeu Building. Any heritage merit it may have has escaped notice. At relevant times, it shared lot 5 with the Gleneagles Towers which had been constructed nearly three decades earlier. They are a heritage place, of whose heritage value the Council Heritage Citation says: “Gleneagles is culturally significant as an innovative and award winning example of high rise accommodation for retirees in Brisbane which provides evidence of changing trends in housing for the elderly and demonstrates an important phase of development in the suburb of New Farm and the city of Brisbane during the 1960s.” the significance being further down described more expansively: “This is a place of local heritage significance and meets one or more of the local heritage criteria under the Heritage Register Planning Scheme Policy of the Brisbane City Plan 2000. It is significant: 1. as it demonstrates a significant change in Brisbane’s development patterns during the 1950s and 1960s from predominantly detached dwellings and low-rise flats to an increasing amount of high rise accommodation in the inner suburbs. It is important in demonstrating the evolution or pattern of the City=s or local area=s history; and 2. as the first high-rise accommodation in Brisbane for the elderly which provides evidence it provides of changing trends in the provision of accommodation for retirees in Brisbane during the 1960s. It is important in demonstrating the evolution or pattern of the City=s or local area=s history; and 3. As an innovative solution to the demand for suitable accommodation for retired residents in a central location which was awarded the Royal Australian Institute of Architects Building of the Year in 1965. It is important in demonstrating a high degree of creative or technological achievement at a particular period.” [32] It was very much part of the appellants’ case that views of the “Twin Towers” as a grouping ought to be protected to remind people of their contribution to the character and history of New Farm. Of present interest is whether lot 5 as such is a heritage place, if so whether the Clive Burdeu Centre somehow constitutes a heritage place whose removal or demolition without Council’s approval or consent may attract penalty type consequences that, if Acceptable Solutions A1.2 and A2.2 have to be complied with, new development may not be any greater in height or GFA. Trees have been recognised as heritage places, for example Hoop Pines at St Paul’s School, Bald Hills and fig trees in Allpas Parade, Shorncliffe, pine trees at Sunnybank Railway Station, Bunya pines at Manly West and the whole of -- 24 of 49 -- 25 Sherwood Arboretum, likewise a wall and garden in the Read House at Royal Esplanade, Manly. Except in such cases, I am not persuaded that a site can be treated as a heritage place. There is room for exceptions, such as the Holy Name Cathedral Site or Queens Gardens – St John’s Church Reserve, but not in present circumstances. In my opinion, in the Schedule to the Council’s Heritage Register Planning Scheme Policy, the heritage place is what is listed in the left column, details of street address and real property description are there to assist locating the heritage place. They are not themselves the heritage place. Here the demolition or removal caught would be of Peregrine House or Falcon House. [33] It is the case that Part E of the IDAS form 1 development application, identifying the application in the first boxes as for “preliminary approval – building works on and adjoining a Heritage Place” did not complete the next boxes by referring to a development permit for demolition of the Clive Burdeu Building, which was integral to the whole proposal, as no-one could have doubted. The accompanying town planning report in 1.1 Overview identified the four components of the proposal: “The proposed development contains in essence 4 components: 1. Removal of the Clive Burdeu building; 2. Reconfiguration of the lot from one lot into two; 3. Provide for a proposed 10 storey residential block fronting the river; and 4. Propose a secondary smaller a 3 storey residential and amenities building facing Moray Street. The existing aged care accommodation contained within the Gleneagles towers will be retained and provided with enhanced landscaping area. The main area of the site upon which the Clive Burdeu building is situated was not part of the original Gleneagles site. The two towers were originally built on 2 lots with an area of some 4000sqm and the Churches of Christ then purchased the adjoining southern lot to build the nursing home. As part of that redevelopment, part of the original basement car parking area was demolished and a new parking area constructed. The demolition of the Clive Burdeu building will not affect the heritage integrity of the two towers. Current occupants of the Clive Burdeu building will be relocated to a new upgraded facility at Mitchelton while tenants of Gleneagles will remain. The Reconfiguration component is to divide one (1) lot into two (2) lots. The result will be the creation of two separate lots one of which will house the existing Gleneagles Towers located on prosed (sic) lot 1 (3202 sqm) while the second proposed lot 2 (2217 sqm) will house the proposed Multi Unit Dwelling. In essence, the reconfiguration will simply see the lot acquired to allow the erection of the Clive Burdeu building to be returned as a separate lot, as it was in 1992.” [34] It should be noted that the Gleneagles Towers site is being reduced by some 800 m2 , which has consequences that may be of relevance, for plot ratio, for example. The -- 25 of 49 -- 26 appellants argued that there was and might be a material change of use here that should have been applied for, and was not. This issue in planning and heritage aspects is considered in detail at [67] below. The Report goes on to note that the portion of road adjacent to Lot 2 was “intended to be incorporated into the site at a later date”. Exhibit 27 indicates an accretion of 279 m2 , also that incorporation of the balance of the road will add 321 m2 to Lot 1. The reconfiguration will affect the side boundary setback of Peregrine House. [35] In its decision notice incorporating the approval appealed against the Council has required the demolition in question. Condition 47 is: “Architecture Timing 47 Partial Demolition of Building Demolish the Clive Burdeu building in Prior to Accordance with Drawing’s No. 06-103 commencement ED004 Issue A dated 20/12/2006 and 06-103 ED005 Issue A dated 20/12/2006 PROOF OF FULFILMENT Certification submitted to the Architect, Development Assessment confirming that the partial demolition of the subject building has occurred in accordance with the approved drawing. GUIDELINE The condition is imposed to ensure that only the approved partial demolition is possible as a result of the development approval. For any enquiries about this condition, please contact Architect, Development Assessment.” To make assurance doubly sure the condition is replicated at condition 70. Other conditions are premised on the demolition taking place, for instance condition 15, whereby replacement landscaping in the same location must be finally designed to suit the relevant Council officer, then implemented and certified to be compliant. It might be difficult to show that the Council had not consented to demolition of the building. [36] The Heritage Place Code in City Plan 2000 (chapter 5 page 89) expressly applies to assessing building works (including demolition), reconfiguring a lot or operation of work on premises that includes a heritage place or on premises adjoining a heritage place. For the former, acceptable solutions as set out in terms of reports being provided verifying compliance with the Burra Charter principles. For the latter, there is a paucity of acceptable solutions to the performance criteria, which essentially relate to views of (and from) heritage places not being impaired. An appropriate report covering all heritage issues of an architect, Ivan McDonald, accompanied the application. It persuaded the Council as assessment manager, and subsequently its heritage and architecture expert, Mr Scott, who gave evidence in the appeal. The Gleneagles Towers get recognition as a heritage place on the premises, and in view of the reconfiguration, may get it as an adjoining heritage place, as well (without any reduction of protection implied). Mr McDonald had to -- 26 of 49 -- 27 consider, in the latter category, the site’s downstream neighbours, both heritage listed: the 3-storey Watsonia facing Moray Street, whose citation states: “This is a place of local heritage significance and meets one or more of the local heritage criteria under the Heritage Register Planning Scheme Policy of the Brisbane City Plan 2000. It is significant: 1. as it demonstrates the pattern of residential development in Brisbane, and in particular New Farm, during the interwar period when substantial numbers of flat/apartment buildings were constructed, it is important in demonstrating the evolution or pattern of the City’s or local area’s history; and, 2. as an existing example of a inter-war Spanish mission style apartment block, it is important because of its aesthetic significance; and, 3. for its associations with politician Arthur William Fadden and architectural firm Chambers and Ford, it has a special association with the life or work of a particular person, group or organisation of importance in the City’s or local area’s history.” and Aville Court which was constructed behind (on the River) on a battleaxe block at about the same time: “This is a place of local heritage significance and meets one or more of the local heritage criteria under the Heritage Register Planning Scheme Policy of the Brisbane City Plan 2000. It is significant: 4. as it demonstrates the pattern of residential development in Brisbane, and in particular New Farm, the character of which is significantly defined by buildings of this type, during the interwar period when substantial numbers of flat/apartment buildings were constructed. It is important in demonstrating the evolution or pattern of the City’s or local area’s history; and 5. as an example of 1930s up-market, purpose-designed flat construction in the New Farm area. It demonstrates rare, uncommon or endangered aspects of the City’s or local area’s cultural heritage; and 6. as the place demonstrates one of the three main types of purpose designed flat buildings that were constructed in Brisbane during the interwar period. These were the bachelor flat, moderate rental blocks, and, in this example, the prestigious architect-designed block. It is important in demonstrating the principal characteristics of a particular class of cultural places; and -- 27 of 49 -- 28 7. as it makes an important aesthetic contribution to the Moray Street streetscape, urban fabric of New Farm, the Brisbane river-scape and the views and vistas provided by RiverWalk. It is important because of its aesthetic significance; and 8. for its association with prominent Brisbane architectural firm Chambers and Ford. It has a special association with the life or work of a particular person, group or association of importance in the City’s or local area’s history.” [37] The citation for Aville Court is dated January 2004; the date of entry shown in the Policy Schedule is 1 July 2003. It is common ground that the listing came too late to affect a development application which resulted in a development approval being granted for a multi-unit building on the site of 5-storeys from the street or 6-storeys from the River – although in absolute terms, the level of the 6th storey component is lower by a full storey: (see exhibit 78) on 26 November 2004. The approved proposal retains most of the side walls (nothing else) of the original 1936 building. [38] Exhibit 78 is a development approval issued on 26 May 2008 by a private building certifier for the demolition of the remainder of Aville Court. The currency period for the Council approval will run out next November unless extended. It cannot be known at this stage what will happen, in particular whether Aville Court in its current state will be demolished or belatedly get the protection that the heritage listing now potentially gives it. [39] The first co-respondent is now the owner of Aville Court; it will be making the relevant decisions.2 In my opinion it is entitled for purposes of these appeals to abandon whatever rights may attach to Aville Court in respect of amenity impacts of the subject development, including rights to protection of existing views from it. It is not being suggested that views of Aville Court from elsewhere, which it has been determined that the public interest requires be protected, can likewise be abandoned; it was a predecessor in title who obtained approval for the disappearance of the southern (i.e. River) and northern walls of the building. In those circumstances, the examination which occurred of impacts of the proposed 10- storey towers on protected views (indeed, impacts more generally, extending to shadowing and the like) was, strictly, irrelevant. There was debate about the interference with the views of the Story Bridge from Aville Court by the open riverfront balconies of the proposed tower, which on the River side extend forward of the building. The extent of interference with views will depend on what furniture, plants, screens and the like are placed on the balconies. It was pointed out that implementation of the proposal would serve to open (to some minds, improve) views from the relevant existing windows in Aville Court by removing vegetation, in particular some very large celtis growing on the river bank – the landscaping proposes vegetation of modest height towards the River, to ensure that tower residents are spared the affliction of unwelcome vegetation in their sightlines. Postulating an owner of Aville Court as determined to preserve views as the 2 According to items in the Sunday Mail newspaper of 15 and 22 June 2008 supported by photographs (material not put in evidence in the appeals) the demolition has taken place. -- 28 of 49 -- 29 appellants are, and calling in aid the extra consideration due a “heritage place”, I am (narrowly) persuaded that the proposal should be adjudged acceptable in this regard. I am a little troubled by impacts on views to Aville Court. The montages prepared are restricted to a single fixed viewpoint; they do not allow for a person wanting to enjoy a view through an opening to move about so as to take full advantage of the opening. In the same way, people moving around the streets of New Farm or along the floating walkway are able to change vantage points and perspectives, and, without too much trouble, enjoy after all a vista which from some location(s) may have been lost or impaired by the development. For what it is worth, the court’s opinion is that the façade of Aville Court facing the River3 is really the one of significance. [40] Circumstances alter cases, perhaps; Mr Scott’s advocacy of moving the tower 6 m to the north to protect the heritage related views from Aville Court is a counsel of perfection inconsistent with the equanimity with which he approached the complete blocking of views to the Story Bridge (the relevant designated landmark in this context) in respect of another proposed development which was going to have a far more severe impact on views from the heritage listed building in Julius Street, “Ainslie”: “Because the proposed new building maintains the footprint of the residence at existing levels, and the units over step back, the intention is to maintain the cross-river views from both existing Units 3 & 4, to the South West. The longer view to the North West Story Bridge would be obscured by the proposed building. To some extent the proposed balconies to Units 3 & 4 should compensate for the loss of some of their existing view. Existing Units 3 & 4 have access to light and ventilation for a full 180º to the North West. While these windows provide excellent light and ventilation for their flats all year round, these windows need to be protected from too much light and heat on hot sunny afternoons. The new building will reduce the amount of light and ventilation entering the end windows of these two units but this will not reduce their amenity below current BCA standards nor in my opinion would it make Units 3 & 4 in any way unpleasantly dark or airless. … ‘Syncarpia’ was designed to address the street with light and ventilation from three sides of each flat/apartment. Any casual views that have existed across other people’s back yards have always been vulnerable to being blocked by building work occurring in those other properties. I think it is unfortunate that views from ‘Syncarpia’ enjoyed by the residents of that building might be blocked by the proposed building at 10 Julius Street but I do not think that blocking of views from existing buildings is relevant to assessing this application against relevant codes in City Plan and against relevant assessment criteria of the Queensland Heritage Act.” 3 Now gone – see footnote 2. -- 29 of 49 -- 30 [41] Mr Hayes, who did not support the 6 m northwards relocation, which would disadvantage the appellants, was equally unsympathetic to claims that the proposed development (which his firm designed) should respect Ainslie’s views: “Issue • The proposed building is contrary to the Performance Solution that requires new buildings to maintain views to and from the River and other landmarks identified maintaining a visual relationship with other buildings in the vicinity. Response The new building’s amended design does not compromise the views and vistas to landmarks identified in the Local Plan nor does it interfere with the relationships between building in the immediate context of the site. There is no obligation to preserve views over adjacent property of these landmarks where development is generally within the requirements set for that land under City Plan. In the case of the proposed building depicted in the amended design, it complies with the City Plan.” So he advised in a response to submissions dated 15 June 2006. [42] A similar issue was raised belatedly about views to New Farm Park which might be lost from the riverfront balconies in Peregrine House, a heritage place. A 10-storey tower, for most levels, would stand in the way of views available by looking backwards, away from the adjacent reach of the River, from those balconies. To the extent these may be available, no concern about them has been expressed by the co- respondents, the first of which would appear to be the representative of Peregrine House and associated interests. There was no opportunity to prepare montages of the kind found in exhibit 5B which might assist in evaluating the appellant’s assertions in this regard. I do not think the issues in the appeal should be allowed to be expanded in all the circumstances. [43] It may true that views of and from Aville Court would be better preserved by relocating the proposed tower. The suggestion to relocate further back from the River emerged very late, too late for montages to be prepared like that as in exhibit 5B illustrating the effect on views from Bellerive, which would obviously suffer more from relocation, as a tower 6 m closer would appear more dominating, and obscure a greater portion of the views available (including views of sky). There will be further negative effects on Watsonia, which otherwise is offered the prospect of a view corridor towards the Story Bridge being opened up once the Clive Burdeu building is demolished, as there was to be a court with landscaping and a swimming pool between the two buildings proposed by the co-respondents linking the wider “open” area between Peregrine House and Falcon House (where there is some low construction). On the site itself there would be more clutter, the swimming pool -- 30 of 49 -- 31 would probably have to be relocated to the riverfront; at lower levels in the tower re-allocation of rooms internally may be required to avoid the gloom resulting from closeness to a two-storey vertical wall (hardly a significant factor standing alone). The views available from the front of the tower would be markedly less spectacular, being impinged upon by Peregrine House (upstream) and Aville Court (downstream). The two buildings in the site, it is said, would read as one from Moray Street. Views of the Gleneagles Towers “grouping” from the east would be curtailed further. It is suggested (and recorded in a note in exhibit 33B) that there would have to be a major redesign of Moray Street building, and the frontage generally, including car parking and relocation of common facilities. There is no attraction in the suggestion; the limited benefits to Aville Court do not in my opinion outweigh the negatives; the suggestion now becomes insupportable if one returns to no longer ignoring that the owner of Aville Court is opposed. Assessment Against New Farm, Teneriffe Hill – Plan Code 5.4 [44] There are twin aspects of P1. It incorporates the notion of building height being considered: not only is this suggested by AS1 (notwithstanding that the relevant quest is to find an alternative solution); the heading is “Building height”. One aspect is the maintaining of views, the other “maintaining a visual relationship with other buildings in the vicinity.” If either aspect is predominant, it would be the former one. The pertinent meaning of maintain (Oxford English Dictionary Online) is: “II To (cause to) continue, keep up, preserve”. The many examples given in nine categories of more refined meanings rather suggest that “maintain a view” (view in the sense of something to be appreciated visually) is an unorthodox usage. It seems obvious that the views are ones across a site that a new building there might disrupt, rather than views to be enjoyed from the site. The question arises whether each relevant view is to be absolutely unimpaired, so that a slim flagpole, say, would offend – or whether some impairment is to be tolerated, with recourse to some “standard” such as what is “reasonable”. That AS1 identifies 5-storeys/15m (plus roof structure) as the “preferred way” of complying with the PC makes the absolutist approach unsupportable. In common parlance, a “view” need not be expansive - a sliver is enough to support assertions that a property has a view of ocean, harbour, lake or river – literally there is a view “to” the river, however narrow it be, provided a sight line to the water is available. It would seem unreasonable to hold P1 satisfied in this regard by leaving open a narrow sight line, in place of an existing wide or expansive vista. The decision maker, now the court, is therefore driven to determine what is acceptable or reasonable, which will in almost all cases allow a range of legitimate outcomes, rather than there being a restriction to an all or nothing outcome or to one particular position in the middle. Mr Brown’s evidence at p 557 in another context about the impossible administrative burden of trying to preserve all views to the designated landmarks from all locations merits serious consideration. [45] Notwithstanding strictures that have been pronounced against developers justifying their proposals by arguing that a fully compliant one would be worse, I think it is legitimate here for the co-respondents to present the worst case of a 5-storey building satisfying AS1 from the standpoint of preserving existing river views. I am inclined to accept Mr Calvisi’s approach that a river view comprehends more than -- 31 of 49 -- 32 water, that it includes a view of the banks and whatever may be floating on or built over the water. Mr Hayes challenged the co-respondent’s 5-storey simulations in respect of views from the 6th level of Bellerive, asserting that his geometry exercise (said to be based on actual levels) indicated to him that additional (or at least some) water could be seen from eye level for a standing person, contrary to what had been suggested. Mr Hughes put it to him that on the basis of approved levels for Bellerive, the assertion could not be supported. All of this was left too uncertain to permit conclusions to be reached by me; no submissions were made as to whether the case for preserving Bellerive’s views is restricted to those available, if there is any difference, to what approvals supporting the construction would offer. [46] Consistently with the approach indicated, on the basis of the photo montages in exhibit 5B, I would assess the loss of river view from Bellerive as about a fifth of the view downstream from Peregrine House, looking directly across to the River, rather than accept the lower estimates advanced. There is an additional view available between that building and Falcon House which will be unaffected. Also unaffected are panoramic views downstream. [47] It should be noted that, although one witness suggested that the views to be “maintained” were ones the general public might enjoy, the appeals were conducted on the assumption that views from private property are intended to be protected. Excepting views to the Story Bridge for Aville Court, the proposal has no effect on views of designated landmarks from Bellerive, Aville Court or Watsonia (it may enhance those of Watsonia in respect of the Story Bridge). There is an interesting respect in which expectations of keeping views have been raised higher. It is clear that the designers of Peregrine House anticipated and allowed for similar development on the downstream side, where the 10-storey tower is now proposed. There is evidence that that was in fact the case, confirmed by the essentially “blank” wall on the eastern side; it is also what one would expect in the ordinary run of human affairs – that your neighbours might do on their land what you have done on yours. P1 offered for the first time some prospect that views to the east would not be taken away, from higher levels, at least. [48] A cruel irony of this matter is that the former lot 44, which corresponds with the land where the co-respondent’s development will be constructed, was in the Calvisi family from as long ago as 1959 and remained so until 1987 when it was transferred to the Churches of Christ in Queensland. See exhibit 46. One does not know whether the expectation then was of more Gleneagles Towers or of the Clive Burdeu buildings specifically. The range of expectations fluctuates. On analysis of all relevant City Plan provisions, any expectation that AS 1.1 would be satisfied is ill founded. In my opinion P1 cannot be construed as preserving intact all views to the River which could be enjoyed across or around a building complying with AS 1.1. [49] The view aspect is only half of the story. As much time was devoted in the appeal to the other requirement of P1 of “maintaining a visual relationship with other buildings in the vicinity”; in context, this relates to building height, rather than other kinds of relationship, such as architectural style. Some interpretation of “maintaining a visual relationship” is required. A new building will necessarily destroy the pre-existing visual relationship and replace it with a new one. If buildings can be looked at together, they necessarily have a visual relationship. P1 must be intended to require more than the creation of some visual relationship. The -- 32 of 49 -- 33 focus, for the moment, is on height. I take what is required to be maintained is a visual relationship that is pleasing, sympathetic, supportive, harmonious or complementary. There must be room for notions of reasonableness which, among other things, would indicate to my mind that a range of outcomes is usually likely to be acceptable, because reasonable minds may differ; however, a bare rule of reasonableness not qualified any further is not likely to be helpful. Mr Hayes is plainly right in suggesting that a visual relationship of dominance is problematic. The “Platinum” development adjacent to Glenfalloch places its 7-storey component next to the taller Glenfalloch and its 5-storey component on the outside; the design has created a pleasing gradation. Glenfalloch dominates, but nothing could be done about that on the limited site. Here, the gradation is from the 16 storeys of Peregrine House to 10 to 6 for the approved redevelopment of Aville Court. As in the case of Platinum, there is (roughly) a clear gradation. Should Aville Court not be redeveloped, the proposed 10-storey tower would fit neatly in a straight line from the high point of Peregrine House to that of “Cosmopolitan”, a new 6-storey building downstream of Aville Court. Aville Court at its present height would be dominated by Cosmopolitan and (even) a 5 storey building upstream. While respectful of Mr Hayes’ opinion, I am persuaded by the evidence of his counterparts that the proposal, in its height, will result in a visual relationship with its upstream and downstream neighbours being achieved which can be adjudged pleasing, complementary, etc. These are matters for judgment; mine may well have been that a marginally less lofty tower may have been somewhat more pleasing. I am fortified by the evidence presented against the appellants in avoiding marginal redesign of the development proposal – which is something I think the court ought to eschew if the effects are substantial, for example in reducing the number of apartments to be provided, as opposed to, say, requiring increased landscaping. It was not suggested that the design of the proposal was such that its architectural appeal would suffer from some vertical truncation. [50] The height issue should not be considered in isolation from the P2 issue of gross floor area in this context. Mr Hayes is right, again, in his approach of considering all dimensions of the proposal when he assesses the visual relationship to be produced – as to which he concludes the proposal is sufficiently massive, considered from all angles, to dominate Gleneagles Towers, let alone Aville Court and Watsonia. Here, too, I reject Mr Hayes’ final assessment. There is a wealth of material in photo montages and computer-generated three dimensional views of the proposal to assist in making the assessment. Most useful is the model exhibit 7, prepared by or under the direction of Mr Hodgkinson, who describes in exhibit 6 how it was prepared. I am satisfied that exhibit 7 gives a reliable impression of the proposal in its context. The model covers a wide area of the “Moray Street Precinct at New Farm”. It was possible to insert alternative components representing Aville Court as it is and as it would be if redeveloped according to the approved plans. The model and the other visual aids referred to, together with the net impression produced by the evidence of the expert witnesses, persuades me that the proposal is acceptable in the sense of satisfying P1. Also that it satisfies P2. [51] Once again, the acceptable solution is not complied with. Exhibit 67 represents Mr Hayes’ plot ratio and GFA calculations. It hardly matters whether they are precisely accurate: -- 33 of 49 -- 34 “PLOT RATIO CALCULATIONS 79 MORAY STREET NEW FARM Area (m 2 ) GFA (m 2 ) Plot Ratio Original Gleneagles Development (1960s) (lots 42 and 43) 3951 6,227 1.58 Gleneagles & Clive Burdeu (less road) 5419 7,538 1.39 Gleneagles as per application (less road) 3202 6227 1.94 New Building on new block as per application (less road) 2217 3558 1.60 Gleneagles + proposed development on amalgamated site as per application (less road) 5419 9785 1.81 Gleneagles + proposed development on amalgamated site (incl. road) not in original application 6019 9785 1.63” The exceedance over A2.1 (see [15]) is large but, fully aware of that, the court determines that the performance criteria are satisfied. There is another low density “precinct” in the general area, diagonally across Moray Street, and remote from the site, especially the tower. There is no comparison with the common situation in the suburb where only fence lines separate residential precincts of different densities. While it would be straining things to describe the tower on its own as constituting “medium density”, in size and bulk it is “consistent with the medium density nature of the locality”; I think the performance criterion is accepting what is currently in -- 34 of 49 -- 35 the locality as “medium-density”. What is “residential scale” would depend on the context, and is probably changing over time. Much bigger buildings are accepted as exhibiting residential scale, in my judgment. [52] The foregoing issues have had to be considered in the heritage context and the broader “urban design” context. Again, the model and other material covering the same ground provided valuable assistance. To the extent that anyone may want opportunities to behold and enjoy the heritage listed buildings on neighbouring sites (and, for the Gleneagles Towers, as a grouping) in my assessment, little is lost. There will be many vantage points from which the proposal’s presence can be ignored (that observation would apply at least to views from Bellerive, which form the foundation of the appeals – views significantly impaired in a way those enjoying them at present will reasonably regret, but which I find is acceptable in terms of the applicable planning provisions). More broadly, when one is contemplating the Local Plan area more generally, whether its skyline or its “feel” (village or otherwise) in the streets or in the residences, the proposal is acceptable, and was properly evaluated by the Council as such, for all its exceedance of acceptable solutions. Architecture [53] It has been not necessary to say much about architecture. In that regard, the merit of the design is accepted; it is unnecessary to wax lyrical about architectural merit, as in Cromar (supra), in which that quality could purchase allowances or relaxations. That is not a feature here. It has not been suggested that the Council has been seduced by questionable claims of architectural merit into accepting a proposal which otherwise might have been rejected (I do not doubt that examples of that happening could be located in our planning history). In deference to Mr Hayes I will set out his summary of opinion found in his architecture report, exhibit 21. “4. Summary of Opinion In the mid 1990s the Brisbane City Council’s Urban Renewal Taskforce established the basis for the New Farm Teneriffe Hill Local area Plan. This plan changed the parameters for development on the Moray Street area from High Density to medium density, initially to 6 storeys maximum and subsequently to a 5 storey maximum. It is this concept of Medium Density development which underlies most of the issues in this Appeal. This proposed development is an attempt to undermine the Local Area Plan and the City Plan 2000 by achieving a High Density Development as defined in the City Plan without having to comply with the extra strictures of the High Density Code such as side boundary and rear boundary increased setbacks. If the proposed development was to comply with the acceptable solution of side boundary setbacks in the City Plan 2000 there would be no building able to be constructed up to 10 storeys. As a result of this ‘High Density’ by stealth a number of grave amenity issues occur in relation to neighbouring buildings without the controls of the High Density Code. These include -- 35 of 49 -- 36 • A proposed building which is 10 storeys and with a plot ratio of 1.6 in a medium density Designated Area • Overdevelopment of the existing Gleneagles site due to an adverse reconfiguration application generation a GFA in excess of 1.9 plot ratio and less than appropriate side boundary setbacks • Increased overshadowing of neighbouring due to lesser side setbacks • A proposed building which does not comply with ‘acceptable solution’ setbacks on all 4 boundaries • A landscaping revegetation programme which is compromised by both lack of deep planting on Moray Street and building dominated river bank • Lack of privacy for adjoining neighbours • Unnecessary diminution of interesting views for surrounding neighbours • Unnecessary diminution of views to and from the River and the Story Bridge by the public in Moray Street • Creating unnecessary overshadowing of the River walkway in Winter time • Creating a precedent for over development in this highly sought after area of New Farm and as such creating a detrimental effect on existing ‘character’ The proposed development at 79 Moray Street is essentially at odds with the philosophy of this current planning scheme and complies more with the planning schemes of the 70’s and 80’s, which was rejected by community standards in the 90’s and again in 2000. these standards were based on perceptions of urban design that were translated into ‘character’ components in the New Farm and Teneriffe Hill local area plan. It is my opinion that the greatest impact of the Court refusing this appeal is that a precedent will be established for the total disregard of City Plan 2000 in an area which was one of the first in Brisbane to establish a modern Local Area Plan which encouraged development, but retained a context of what the community felt was worthy of preservation. This precedent could lead to the destruction of that community context.” [54] (The point about the setback on the River side is that it is now asserted that the requisite 20 m ought to be measured perpendicularly to the River. There has been a practice, apparently general in Brisbane, of measuring it along property boundaries which, in this locality, are at a 45 degree angle to the riverbank, so that the perpendicular distance is considerably less than 20 m. If that accepted approach were now to be considered erroneous, it would seem unfair to make an example of the co-respondents over it. The proposed setback is entirely consistent with that of adjoining properties. The 45 degree feature has the result of producing interesting varying building lines along the river, in marked contrast to (and a huge improvement upon) the walls of development which one encounters on some -- 36 of 49 -- 37 downstream sections, particularly on the other side of the river, where the side boundaries of properties do run more or less perpendicular to the River.) [55] Not all of the ten architecture “dot” points attracted attention during the hearing of the appeals. There may be some overstatement in them. Without wishing to suggest that there is an unacceptable lack of privacy for adjoining neighbours, I would observe that, as things have fallen out, it is the first co-respondent whose attitude matters here; these are not circumstances where neighbours committed to their location are having their amenity impaired; potential residents of the future would be able to look at the development and then determine whether to commit to Moray Street or not. Mr Hayes’ broad assertion that expectations are being frustrated is met by Mr Hinson SC’s blunt observation that, when City Plan 2000 is considered as a whole, those expectations were mistaken. Did the development application include relevant land and related consents? [56] I proceed to deal with some of the more “technical” arguments presented by the appellants. Mr Favell submits that the application was fatally flawed because of the absence of necessary consents of owners of relevant land. The power of the Council to receive an application that is not a properly made one with the consequence that it is taken to be a properly made application under s 3.2.1(9) of IPA is not available in respect of missing written consents: see sub-section (10)(a)(i). The following three dot points essentially reproduce the arguments set out in a written opening: • The application was made in respect of Lot 5 on RP848259 located at 79 Moray Street, New Farm. Lot 5 on RP848259 was the amalgamation of the abutting parallelograms of Lots 42, 43 and 44 on Registered Plan 8634 (each extending from the street to the river) less a portion of land which was dedicated to road on the amalgamation. That portion dedicated to road was a portion fronting the Brisbane River. • The approval has been given over Lot 5 RP848259 but Lot 5 on RP848259 no longer exists and instead the land the subject of the application and approval has been included in a new lot description which is made up of Lot 5 on RP848259 and the area of land which was previously dedicated to the roadway and now called Lot 5 on SP 209155. The application envisaged lot 5 on RP848259 becoming lots 1 and 2 on SP 195113. An area of land on which the two towers (Falcon House and Peregrine House) are located was envisaged to be lot 1 above and the new building site lot 2. The approval has been given in anticipation of SP 195113 creating 2 separate titles for lot 1 and 2 from Lot 5 on RP848259. That cannot now occur because there is no lot 5 on RP848259 in existence. • This raises a question for this court which has been recognised in the report from Mr Humphreys provided to the applicants on 4-4-2008 wherein Mr Humphreys premises his conclusions on the basis of the land the subject of the application and approval being Lot 5 on RP848259 plus the dedicated roadway. That was not the subject of the application nor was it the subject of the approval given by Council. The owners of the road did not consent to this application and whilst the applicant arguably had a power of attorney from the then owner -- 37 of 49 -- 38 of what was lot 5 RP848259 that power was not exercised and accordingly the owners of the land did not consent to the application being made. [57] Reference was made to Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444; 156 LGERA 322 as establishing that there is no power in the court to overcome any absence of consent by use of s 4.1.5A (cf Oakden Investments Pty Ltd v Pine Rivers Shire Council (2002) 15 LGERA 256). In Fawkes, the applicant had not complied with the “mandatory … requirement for an accurate description of the land” set out in s 3.2.1(2)(a), erroneously taking the view that only a penthouse proposed to be enlarged was involved, rather than the whole site where it was located; the consequence was that insufficient consents were obtained. Although the Council had sent an acknowledgment notice, this did not commit it to the proposition that the application was properly made – a proposition it had always denied; the steps required by the equivalent of the present s 3.2.1(9) had not been followed. [58] The “land” mentioned in s 3.2.1(2)(a) by s 1.3.8(j) is “the land that is the subject of the application”, being the land to be developed. Provided there is clarity as to the “metes and bounds” of that land, I do not think (at least in circumstances like the present ones) that anything turns on changes in the real property descriptions; the land remains the same. Reconfiguration, with which would necessarily lead to new real property descriptions, was an integral part of what was applied for. Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348, also reported as Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476; [2000] QCA 506 establishes that there is no difficulty arising from the application referring to lot 5 when physical development is to be restricted to the smaller lot 2 to be carved out of lot 5; it is legitimate to incorporate detail in documents accompanying the application which are available for inspection by interested persons. [59] As for the road area, which, as a matter of history, had been dedicated in anticipation of a road being established along the River, there is no longer any public requirement for it, given the construction of the floating walkway at New Farm. No development (some landscaping there was envisaged) was proposed on the road area. Its inclusion in the curtilage of the development may be seen as positive in “improving” plot ratios and possibly reducing the scope of any indulgences that might be sought in that regard, but was in no way crucial to or a necessary part of the application. Future amalgamation of the road area with the site (specifically the part abutting Lot 2) was expressly referred to at various places in the town planning report accompanying the application. See exhibit 10C, for example at page 118, recounting the “history” outlined above, page 125, page 135 (where the assertion of plot ratio falling from 1.6 to 1.425 is made) apropos P2 in the New Farm and Teneriffe Local Plan Code 5.4, and 141 in relation to P16 (Development must not significantly reduce daylight to open space and habitable rooms in adjacent development). However, in my view, the road area was not (and does not need to be) part of the development application. [60] There is a further reason why the amalgamation need not be included in the development application. Mr Hinson SC, for the Council, had contended that the amalgamation did not constitute development for IPA purposes because of the exception in Schedule 8 Part 1 Table 3 Item (b) for “amalgamation of two or more lots”. Mr Favell’s riposte in court is neatly spelled out in the later written submissions: -- 38 of 49 -- 39 “ROAD AMALGAMATION 19 The applicant relied on the inclusion of the road reserve in the total land area for the purposes of reducing the GFA from 1.6 to 1.4 with the effect of making the building seem less non compliant with the acceptable solution of 1. 20 The fact that at the time the application was made the applicant did not have control over the road reserve did not prevent the applicant from including the road reserve in the description of the land the subject of the application. All that was needed to properly include it was the owner’s consent or support which in this case was Department of Natural Resources. 21 The applicant relies on s.3.5.28 IPA which is set out below. 3.5.28 Approval attaches to land (1) The development approval attaches to the land, the subject of the application, and binds the owner, the owner’s successors in title and any occupier of the land. (2) To remove any doubt, it is declared that subsection (1) applies even if later development (including reconfiguring a lot) is approved for the land (or the land as reconfigured). 22 Development is defined in s1.3.2 as follows: Development is any of the following— (a) carrying out building work; (b) carrying out plumbing or drainage work; (c) carrying out operational work; (d) reconfiguring a lot; (e) making a material change of use of premises. 23 The following definitions (s1.3.5 IPA) are relevant. reconfiguring a lot means— (a) creating lots by subdividing another lot; or (b) amalgamating 2 or more lots; or (c) rearranging the boundaries of a lot by registering a plan of subdivision; or -- 39 of 49 -- 40 (d) dividing land into parts by agreement (other than a lease—… lot means— (a) a lot under the Land Title Act 1994; or (b) a separate, distinct parcel of land for which an interest is recorded in a register under the Land Act 1994; … 24 A road is not a lot as it is neither under the Land Title Act, nor is it a parcel of land for which an interest is recorded in a register under the Land Act 1994. S 276 of the Land Act describes the registers to be kept under the Land Act. A road is not unallocated State Land. 25 As such it is not a parcel of land for which an interest is recorded in a register under the Land Act 1994. 276 Registers to be kept by chief executive The chief executive must keep the following registers— (a) the leasehold land register; (b) a register of reserves and trustees of trust land; (c) a register of licences and permits; (d) a register of unallocated State land; (e) a register of State housing leases; (f) registers about land prescribed under a regulation; … … unallocated State land means all land that is not— (a) freehold land, or land contracted to be granted in fee simple by the State; or (b) a road or reserve, including a national park, conservation park, State forest or timber reserve; or (c) subject to a lease, licence or permit issued by or for the State, other than a permit to occupy under this Act issued by the chief executive. 26 The amalgamation which has taken place pursuant to s 109(2) of the Land Act falls outside of the definition of reconfiguration in IPA and accordingly also outside of the definition of development for the purposes of s.3.5.28.” Whether the amalgamation “has taken place” as asserted was not the subject of particular attention. The assertion is no doubt based on the title created on 16 -- 40 of 49 -- 41 October 2007 (dealing no. 711084517, 12/10/07) in the Appeal Book Volume 3 (4 or 5) Exhibit 10D at page 541. This is based on a new plan of Lot 5 SP 209155, cancelling Lot 5 on RP848259 (ibid, page 540). Both postdate the Council’s development approval of 10 August 2007 (ibid page 454ff). As at the date of that Approval (which may survive this appeals intact), the amalgamation was something for the future independent of (albeit contemplated in) the development application. I have difficulty coming to grips with, let alone detecting merit in a submission that such a subsequent event vitiates the antecedent approval. [61] Mr Hinson changed ground, as the transcript revealed: “MR HINSON: Under 108 of the Land Act, ‘If the Minister permanently closes a road the road is permanently closed by the registration of a plan of subdivision.’ Section 109 says, ‘If the Minister is satisfied that the road being permanently closed is of an adequate area to be used as a lot, the road must be shown as a lot on the plan of subdivision and may be dealt with as unallocated State land.’ Subsection (2) says, ‘If the Minister is not [so satisfied] the road must be amalgamated with adjoining unallocated State land or, if there is no unallocated State land, the land of an adjoining owner.’ So the road is closed by registration of a plan of subdivision which amalgamates it with the adjoining parcel. If that is [to be] assessable development, somebody has to point to some provision in either schedule 8 or City Plan which makes it so. There is no such provision in schedule 8 or City Plan which makes it so. There is no such provision in City Plan. Therefore having regard to section 3.1.2 of IPA, if it is not made assessable, it is exempt. … MR HINSON: … If this land is added to an existing lot that is not in terms of the definition of reconfiguring a lot, amalgamating two or more lots. It is amalgamating one lot with something that is not a lot. It is just not a reconfiguration as defined. If it is not a reconfiguration as defined it is not development. If it is not development it can’t be assessable development. (Transcript for 30 May 2008, pages 89-90).” [62] This argument appears to me a correct one. Mr Favell said nothing about it in the written submissions he had leave to present by 6 June 2008 (principally to deal with Mr Hughes’ late formulation of “minor changes” that might be made to the application). An instance of a road held not to require inclusion in a development application is Queensland Investment Corporation v Gold Coast City Council [2001] QPELR 83. Consent of the Churches of Christ in Queensland [63] Restricting attention to Lot 5, in the IDAS Form 1 Development Application, the applicant is shown as “Tom Dooley Developments c/- Urban Strategies Pty Ltd” in a block bearing the signature “Tom Dooley” against the date 14.12.06. The next block, “land owner’s consent”, has a schedule apt to accommodate in columns the owner’s name, the owner’s signature and the date. The name (correct when given) -- 41 of 49 -- 42 is the Churches of Christ in Queensland, the date 14.12.06; against signature, in writing which would appear to be Mr Dooley’s, one reads “please refer to attached form”. The reference is to a letter copied at page 94 of exhibit 10C: “8 December 2006 Mr Tom Dooley Tom Dooley Developments 438 Brunswick Street FORTITUDE VALLEY QLD 4006 Dear Tom, The Churches of Christ in Queensland sale to TDD Developments (Moray No.2) Pty Ltd Premises: 79 Moray Street, New Farm I refer to the contract dated 5 October 2006 between The Churches of Christ in Queensland (the Church) and TDD Developments (Moray No.2) Pty Ltd (Purchaser) for the sale and purchase of the land located at 704 Moray Street, New Farm, Brisbane, described as Lot 5 on RP 848259 and registered under title reference 18594071 (the Property). I confirm that the Church appoints you as its attorney in relation to executing any forms or other documents required in order to lodge and process any development application to facilitate the reconfiguration or material change of use of the Property. Yours sincerely [signature] Robert Warwick Capital Development Director Churches of Christ Care Churches of Christ in Queensland” [64] The appellant’s argument that the power of attorney (apparently conceded to have been effectively granted) was not exercised is rejected. It is the case that Mr Dooley could have placed his signature on the Form 1 a second time, as attorney. The point of s 3.2.1(3) and (10)(a)(ii) is to ensure that the assessment manager has before it written material establishing as a fact the owner’s consent. The letter quoted, which is recent, indeed refers the relevant land, and to “reconfiguration or material change of use”, reflecting or foreshadowing the language of sub-section (3)(a) and the application dated 14 December 2006 is adequate to serve that purpose. Assuming for the sake of argument that forms are in existence which were meant to be and 4 (Sic) – in the circumstances the other descriptions indicate that the development site is the subject of the letter. -- 42 of 49 -- 43 could have been adopted, in my opinion it is the substance of the matter of a written consent which should be looked to. In respect of Lot 5, enough was provided. Cf Petrie v Burnett Shire Council [2001] QPELR 510. [65] I am not attracted to the proposition that Mr Dooley was required to sign the application twice, although at the same time am mystified as to why he did not do so. Company directors have been held personally liable as guarantors of company obligations, although their signatures were appended only in association with the fixing of the seal of the company for the document creating the obligations and were missing in the specific additional execution sections included for the guarantors: Delaney v Purves [1930] QWN 6, approved and followed by Mahoney JA as one of the majority in the Court of Appeal in Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909 at 922. Single signatures served a double purpose. In first instance matters in the Supreme Court of New South Wales, there was a similar outcome in NEC Information Systems Australia Pty Ltd v Lynton, Wood J 17 April 1985, BC 8500877, but a contrary one (where the signature was construed as limited to attesting sealing by the company) in National Commercial Banking Corporation of Australia Ltd v Cheung [1983] 1 ACL 326 and in Clarke Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 where, however, the reasoning in NEC v Lynton was preferred to that in Cheung: see 170ff. [66] Here all the circumstances show both actual and imputed intention by Mr Dooley to formally communicate the owner’s written consent to the application. It is inconceivable that the Church could establish that it did not consent; more to the point, the court is well satisfied, as the Council presumably was, that the application satisfied s 3.2.1(3) in that it did “contain or be supported by, the consent of the owner”. The formalities should not be treated as any more exacting than those required to render a person liable as guarantor of another’s obligations. Should an MCU for Gleneagles Towers have been applied for? [67] One of the reasons assigned in written submissions for the appealed decision’s being “not an approval given in respect of a properly made application” is that: “c. the application did not address the change in intensity or scale of the use in respect of the Gleneagles Towers (see definition of ‘material change of use s 1.3.5) and as such unless the making of the material change of use was in accordance with IPA then the use is not lawful. (S 1.3.4);” expanded as follow in Mr Favell’s final written submission: “2 The appellants submit that even if the changes sought by the First Co- Respondent are made they are not enough because there also needs to be an application made for a material change of use in respect of the land on which the towers remain. What will happen by virtue of the application sought must be a change of intensity for the Gleneagles buildings and site when the Aged care use over lot 5 is being removed. It is submitted that to ignore the effect the application has on the use of Gleneagles and not include all the land in the application fails to state in appropriate detail the proposed use -- 43 of 49 -- 44 in one application and fails to make all the land involved in the use the subject of the application. It is misleading and piecemeal.5 10 It is submitted that the changes are not minor, because if they were included in a properly made application, they would have required the identification of different parcels of land, different advertising and public notification details. A properly made application should have included an application for the reconfiguration of the road, amalgamation and a material change of use to the aged care facility use. Those matters are not minor changes.” There is a tradition (at least outside CBDs) of taller buildings being acceptable only on larger sites, conformably with requirements for setbacks of half the height and the like: small sites could not accommodate tall buildings. There is no difficulty about a proposition that in principle, a reduction in the curtilage of a building may bring about an intensification and therefore a change in use. From one standpoint, having the residents of 98 accommodation units on 3,200 m2 of land represents more intensive or higher density residential development of that land than if there remained 4,000 m2 of land. In presently relevant planning instruments (unlike those encountered in some other local government areas), density of residential development is a matter of building heights, having no necessary relationship with population; density is the same whether there be four (or 10) households per floor or one. Here, any calculated change in intensity will be without effect in the practical world. There is not the mixture of increased intensity in some aspects, reduced intensity in others encountered in Herston Kelvin Grove Residents Action Group v Brisbane City Council [2001] QPELR 382, or the one metre plus height increase (with no increase in storeys, floor area or unit numbers) in Martin v The Whitsunday Shire Council [2001] QPELR 348. There was found to be no material change in identity or scale in Martin (350) although “the views of others … will be further adversely affected with a consequent interference in residential amenity.” In the circumstances, while acknowledging the change in intensity, the court can feel satisfied it is not material. Focussing on the alleged material change of use of the Gleneagles Towers, if there be one, it is in respect of the current use’s continuing (as the court is told it will) on a reduced site; the plot ratio will become a bigger number, as well as the number of residents anticipated per square metre; that is, certain calculations relative to the use will produce a different result, without anything happening in the towers changing. Their relationship to Lot 2, the land being sub-divided off, will change, with the replacement of the building there by new ones, but that does not affect the use of Lot 1. It is only “(iii) a material change in the intensity or scale of the use” that produces a “material change of use”, not every change. It is a question of fact and degree: Maroochy Shire Council v Barnes [2001] QPELR 475, 482. There, intensification without an approval was held a development offence, one in respect of which orders were made. Should such an outcome be thought to threaten, or if this court’s conclusion is thought unsafe, application can be made for a material change of use to get things regularised. There is no “Pioneer” point here. Separate 5 Ogilvie v Brisbane City Council [2000] QPELR 414; Lewis v Mareeba Shire Council [2000] QPELR 432 -- 44 of 49 -- 45 material change of use applications may be made in respect of the same land: Brisbane City Council v Cunningham [2001] QCA 294. [68] Exhibit 37 is the impressively simple approval of the Council’s Registration Board dated 1 February 1962 for “a Multiple Dwelling Class ‘A’” (two buildings each of 14 floors) on three roods 36.1 perches, on sub-sections (i.e. Lots) 42 and 43. The Council’s main concern was for off-street car parking, one space being required for each of the 98 dwelling units. Exhibit 38 is the Council’s notification of conditions of development of 4 August 1992, for lots 42, 44 for the purposes of Aged Care Facility; (f) represents a considerable revision downwards of the carparking requirements to 37 spaces for residents, 8 for visitors, plus manoeuvring room for a fire service vehicle and standing for an 8 tonne truck. This approval led to the building of the Clive Burdeu Centre. The three lots were amalgamated into Lot 5. [69] Bound up with the issue of material change of use of Gleneagles is the heritage aspect of the reconfiguration/dismemberment of Lot 5, the whole of which, Mr Favell asserts, is a heritage place. He calls in aid Mr McDonald’s statement that “should the proposed lot reconfiguration be approved, it is recommended that the Gleneagles heritage register boundary be altered to accord with the newly created Gleneagles’ lot and that the newly created south eastern lot be removed from the BCC Heritage Register.” (See paragraph 36 of the final submission.) The focus in this part of the submission was on demolition of the Clive Burdeu building, considered as part of a heritage place. If it is implied that Heritage Place should be kept intact in the absence of appropriate development approvals granted upon appropriate application, it should be noted that: (a) In my opinion the application relied on here clearly contemplated all of the development currently proposed. (b) The resulting decision notice is apt to approve all of that contemplated development, subject to the conditions incorporated. As to (a), there is authority for the court treating a development application as including what it necessarily seeks (e.g. the demolition): Lagoon Gardens Pty Ltd v Whitsunday Shire Council (2006) QPELR 490 at [16]. Care has to be taken with that approach for example where the IPA requires matters to be expressly set out: Stockland Developments Pty Ltd and Thuringawa City Council [2007] QCA 384. [70] Mr McDonald’s report amply addressed those matters. He included the heritage citation for Gleneagles, which notes at page 3: “Advantages of the one acre New Farm site included extensive river frontage and impressive views of the river and Story Bridge, its location in a prestigious residential suburb, proximity to city amenities and the commercial centre of Fortitude Valley and good rock foundations. The complex consisted of two towers: Falcon House (13 stories) closest to the Moray Street frontage and Peregrine House (16 stories) at the rear of the site near the river. This complied with the height restriction for buildings under the prevailing planning scheme of 132 feet above natural ground level. Tall point blocks allowed the maximum areas for gardens and communal areas and provided a -- 45 of 49 -- 46 large number of units. Falcon House contained 44 double units and a Matron’s unit and office. Peregrine House consisted of 53 units and a Savings Bank branch. Both buildings featured communal roof terraces and lounges at ground level. A single storey recreation building linked the towers. This included a recreation room, utility room, toilets, river view terrace, courtyard and covered accommodation for 30 cars. A dedicated chapel was also included in the complex.” Having noted at 4.1 of his report that Lot 5 exceeded the original site in area, he proceeded in s 5 to consider this proposal’s “impact on significance”: “5.1 Reconfiguration The reconfiguration of the existing lot would recreate a new lot to contain Falcon House, Peregrine House and the Dining/Activities Hall which would be similar to Gleneagles’ original site prior to the recent development of the Clive Burdeu building. There would be no change in the relationship of these buildings to the existing Moray Street, Brisbane River and north-western boundaries. The new south-eastern boundary of the proposed Lot 1 would be located 3 metres away from Peregrine House. This distance is considered adequate to retain a visual separation between Peregrine House and any new development on the adjacent lot, taking into consideration that a new adjacent building will have its own side boundary setback. Both the historical and creative significance of Gleneagles will remain unchanged since, by itself, the proposed lot reconfiguration would impose no visual or physical change to Gleneagles. The proposed lot reconfiguration would impose only an imaginary line on the site and would not facilitate any particular form of development that could not be applied for on the current lot configuration. It is therefore considered that the proposed lot reconfiguration will have no impact on the cultural heritage significance of Gleneagles. The impact on any existing or adjoining heritage places of new buildings on the proposed Lot 2 is addressed in Section 5.3 below. Should the proposed lot reconfiguration be approved, it is recommended that the Gleneagles’ heritage register boundary be altered to accord with the newly-created Gleneagles lot and that the newly-created south-eastern lot be removed from the BCC Heritage Register as it would no longer contain any buildings of cultural heritage significance and would be unnecessary for Gleneagles’ curtilage. -- 46 of 49 -- 47 5.2 Demolition The Clive Burdeu building proposed for demolition was constructed in the early 1990s and did not form part of the original Gleneagles development. The BCC Heritage Register entry describes this building as an additional single-storey building facing Moray Street and acknowledges that it was part of later changes to the Gleneagles buildings. The Clive Burdeu building is a modest, modern building. It makes no conscious design response to the original buildings, has no intrinsic architectural significance …” The Council was justified in accepting these views, which the court is persuaded to accept on the merits. They are borne out by the “heritage experts” heard from, Messrs Riddel, Scott and Hayes. Bertholme [71] Except for the evidence including information about it, the appeals did not involve issues for the decision about Bertholme, immediately upstream of Gleneagles Towers, and an adjoining Heritage Place, if lot 5 be regarded as the development site, rather than proposed lot 2. No party made submissions about Bertholme, which is included in the Queensland Heritage Register as well as the Council’s. Mr McDonald’s report accompanying the application in 5.3.4 notes its significance: ● as a rare surviving example of the type of riverside residences built in New Farm in the late nineteenth century; ● for its unpainted stone walls and decorative front fence which give the house a distinctive texture and an impression of strength; ● as the home of the Moreton Club, Brisbane’s premier private club for women; ● for its association with Andrea Stombuco, the first owner and one of Brisbane’s most flamboyant architects of the 1880s boom period. and comments: “The proposed development will have no visual impact on the cultural heritage significance of Bertholme as the new tower and low-rise building are proposed to be located on the other side of the Gleneagles towers which are immediately adjacent to Bertholme. Notwithstanding this lack of impact, there are no views identified as significant in the heritage register citation for Bertholme which need to be protected and, therefore, there are no significant views which will be impaired. Specifically, no views of Bertholme from the river are identified as significant nor are views from Bertholme to the river CBD.” -- 47 of 49 -- 48 Amendments [72] During addresses, at page 70 of the transcript for “day 9”, the co-respondents (by Mr Hughes) indicated that “we want to seek to formally amend the application – to tick a box and add the words “demolition of Clive Burdeu building”; at page 74 he referred to an amendment to make a “second minor change … to the property description which … will bring inclusion of the road closure area”. Applications in such respects have been long foreshadowed and were described in paragraph 39 of written submissions handed up earlier in the day as “proposed (if ultimately considered necessary)”. The precautionary approach was persisted in; it was sought to amend the development application “if we needed” (page 76). My question (77), “can I get from your submissions the precise words that you want to go in the order if you get that far?” was answered, “no”. [73] Mr Favell produced detailed written submissions on 10 June 2008 (after a long week-end) responding to the “changes to the application”; they are helpful in restating the technical arguments relied on; they culminate in a concluding submission that the changes sought are not minor under s 4.1.52(2)(b) of IPA, that the original development application was not properly made and should be refused. I was reminded of a statement in Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481 at [6] that ordinarily an application to include additional land in the development application “would be given short shrift. It is basic to planning applications that the subject land be identified. One would not expect (except in cases of the most minor or obvious omissions) that a development approval could be extended under the section relied on to cover additional land.” In “exceptional circumstances” there, the proceeding was allowed to go on as one seeking an approval in respect of the extended site. I agree with the appellants that the change sought is not to the description of the land but to the land, by the inclusion of additional land, but I am uncertain of the import of the assertion that s 3.5.28 of IPA (referred to in Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 at 484, reported also as Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348 at 353 does not assist the co-respondents in respect of “road amalgamation” (paragraph 27). That amalgamation throughout has been, and I think remains independent of the application for development upon proposed lot 2. Another potential difficulty in retrospectively including the road area is that it converts the site to a riverfront one which may come within the purview of the Coastal Protection and Management Act 1995 so that the Environmental Protection Agency comes in as a concurrence agency: Hayday Pty Ltd v Brisbane City Council (2006) QPELR 261. [74] It is not proposed that development of the road area, except by the amalgamation, occur; that is subject to the further possible exception that landscaping conditions including removal of celtis etc. may relate to that particular area. This strikes me as a consideration extraneous to a development proposal for lot 2. [75] It’s not necessary here to make a decision whether the amalgamation aspect represents minor change, because in my view it is unnecessary to change the application; at this point the co-respondents are yet to formulate a proposed order describing amalgamated sites in any event. [76] I would be reluctant to risk creating problems by changing the application to bring in new land now. I accept that what has happened may have got out of order the -- 48 of 49 -- 49 creation of lots 1 and 2 (which must not only be approved, but also be implemented and legalised by registration) and amalgamation of the closed road. Theoretically, there may be room for argument as to how the road area is allocated between lots 1 and 2. This may be a fanciful notion, given that the commonsense proposal of continuation of the straight line boundary to the river is propounded by the owner, and that no other person has any proper interest. There has not been an argument about this, but it should not be shut out of an opportunity to make appropriate submissions. It may turn out that the Karreman extraordinariness exception is appropriate, if anything needs to be done to preserve the validity of the approval; it will not be every day that a development site is extended and its calculated impacts theoretically mitigated by the closing of an adjacent road. [77] As for the tentative request to include a specific demolition component in the development application in respect of the Clive Burdeu building, I am disinclined to require, or permit that, as it seems unnecessary. That is the Council’s view, confirmed in Mr Hinson’s final written submissions of June 2008. The applicant has not demonstrated that it would face any inappropriate burden if it had to seek some approval in terms permitting (as opposed to a condition requiring) demolition. I am willing to entertain submissions in that regard. The self-represented appellants [78] There can be no doubting the genuineness of the written closing submissions of the Uphams and Morgans, which range fairly wide and sometimes in emotive terms. There is argument against Mr Dooley’s Barker Street proposal; which has Council’s approval, and a complaint that he “just keeps getting more and more” – as irrelevant as Mr Hughes’ repeated suggestions that his past developments exhibit high architectural or other qualities (hardly a basis for approving this one, which must succeed or fail on its own merits). The expressed concerns about precedents being set are understandable. I would endorse the complaint that lay people are likely to be misled by City Plan (and its counterparts elsewhere) into construing acceptable solutions as enforceable limits on development, which they are not, as becomes clear when one reads what is said of them in other physically remote parts of the planning scheme. Ideally, some prominent “warning” should be printed directly adjacent to the acceptable solutions. Mr Favell has comprehensively covered the arguments available to all appellants, effectively bearing the standard even if, contrary to my assessment, the Morgans and the Uphams, as lay people, found it difficult to mount and present their own appeals. Conclusion [79] The foregoing reasons lead to the conclusion that all three appeals should be dismissed. -- 49 of 49 --