Chelmer Bowls Pty Ltd v Brisbane City Council & Anor [2006] QPEC 40 (2006) QPELR 611

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Chelmer Bowls Pty Ltd v Brisbane City Council & Anor [2006] QPEC 040 PARTIES: CHELMER BOWLS PTY LTD Appellant v BRISBANE CITY COUNCIL Respondent And PETER BARTON CARTER Co-Respondent by Election FILE NO/S: BD1593/05 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 12 May 2006 DELIVERED AT: Brisbane HEARING DATE: 21-24 November 2005; (written submissions from the respondents received 29 November 2005, co-respondent by election on 10 January 2006 and appellant on 8 February 2006, further submissions in reply from co-respondent by election on 10 February 2006 and from the appellant on 15 February 2006) JUDGE: Alan Wilson SC DCJ ORDER: 1 Appeal allowed, subject conditions to be resolved between the Appellant and Respondent or, failing agreement, by further determination 2 Matter adjourned to June 2006 for further mention CATCHWORDS: PLANNING – PLANNING LAW – proposed residential development – associated applications for operational works, reconfiguration, and material change of use – whether -- 1 of 10 -- 2 Desired Environmental Outcomes in City Plan 2000 compromised – whether conflict with City Plan – whether compliant with applicable Codes – whether compliance may be achieved by the imposition of conditions Integrated Planning Act 1997 Brisbane City Plan 2000 Cases considered: Handley v Brisbane City Council [2005] QPELR 80 Jedfire Pty Ltd v Council of the City of Logan [1995] QPLR 41 Leggett v Brisbane City Council [2002] QPELR 285 Mackay Conservation Group Inc v Mackay City Council and East Point Mackay Pty Ltd [2005] QPEC 094 Ryan v Brisbane City Council [2005] QPELR 544 Sinnamon v Miriam Vale Shire Council [2003] QPELR 195 COUNSEL: Mr R Litster for appellant Mr T Trotter for the respondent Mr A N Skoien for the co-respondent by election SOLICITORS: Deacons for the appellant Brisbane City Legal Practice for respondent Carter Capner for co-respondent by election [1] The parcel of land in Chelmer involved in this appeal was formerly occupied by a lawn bowls club which became defunct in 2003. The land was later sold to a private property developer who sought permission to fill it to a higher level and reconfigure the existing seven allotments into eight, which could then be developed for residential use. Council originally refused the application, prompting this appeal, but has now signified it is willing to grant approval, subject to conditions. The co-respondent Mr Carter, who has a residence nearby, has elected to join the proceedings and became the primary opponent of the development. [2] The land, which contains 8,457 sq m, lies to the north east of Wharf Street and Oxley Road at the corner of Rosebery Terrace and Luxford Street. It is enclosed within a loop completed by Queenscroft Street to the south. Much of the land inside that loop is occupied by the Gordon Thomson Park, to the west of the site. The houses on the northern side of Rosebery Terrace sit on deep allotments which rise up from the street, and then descend to the banks of the Indooroopilly Reach of the Brisbane River. The eastern side of Luxford Street also contains some residences, as does Queenscroft Street. Gordon Thomson Park contains about two hectares, which the developer proposes to supplement by contributing land which will extend the park through to Luxford Street. [3] The land is low lying, in a depression which accumulates stormwater to various depths. It was heavily inundated in the 1974 flood. -- 2 of 10 -- 3 [4] It was occupied by Chelmer Bowls Club for some decades until the committee of that club resolved to place it in administration in May 2003. Despite attempts by many members of the local community to convince the administrators that the club could and should continue in existence, it was placed in liquidation in August that year. The proceeds of sale of the club’s land were distributed amongst other lawn bowls clubs around Brisbane. The club building remains, but has been vandalised and partly burnt. Remnants of the greens also remain but the site presents as messy, and unattractive. Otherwise the area has a pleasant, residential amenity. The elevated homes on Rosebery Terrace appear to be generally attractive and large and, by reason of the configuration of the river bank, are situated quite high and well above the subject site. Adjacent houses in Luxford and Queenscroft Streets are on a more modest scale, but are also pleasant and attractive. Gordon Thompson Park is well maintained and obviously suitable for a number of recreation activities. [5] The land, save for that part of it which will be added to the park, is intended to be filled to a depth of about 3 metres, retained by rock and block walls with landscaping. The existing seven allotments would be reconfigured into eight, the smallest being 586 m2 and the largest 1,648 m2 . The additional piece of parkland would be about 8 metres wide and 40 metres long and run from the southern boundary of the park through to Luxford Street. [6] On the morning the appeal began the co-respondent raised an argument that by reason of the quantity of fill involved the appellant’s Development Application had required referral coordination under the Integrated Planning Act 1997, and the absence of referral and proper compliance with the IDAS provisions of the Act meant the appeal should be dismissed. I rejected that submission in ex tempore reasons given about midway through the first day of the appeal hearing 1 , but deferred, for further consideration, the question whether the appellant might in any event have been able to rely upon another provision of IPA. The deferred question concerned the possibility that s.4.1.5A of that Act might have availed the appellant if the co-respondent’s submissions had been accepted. In view of the conclusions I reached the question is hypothetical and it is unnecessary to say more than that, because the co-respondent’s submission (if accepted) would have doubled the period for public notice (from 15 to 30 days) it is doubtful that s.4.1.5A could have been used to the appellant’s advantage. [7] It is also appropriate, at this juncture, to dispose of the co-respondent’s submission that differences between the Development Plans relied on at the appeal hearing and those included with the original Development Application were not minor changes of the kind envisaged by IPA s 4 1 52(2)(b), which prohibits the court from considering changes to the application on which the decision is being appealed unless they are, in fact, minor. The changes themselves included some setting back and terracing of retaining walls to achieve Code compliance, and a better visual outcome; a reduction in fence heights; an increase in the size of lot 7 by 25 m2 , and lot 8 by 4 m2 ; a reduction of 30 m2 in the proposed park dedication (from 1,776 m2 to 1,746 m2 ); an increase in the number of driveways through the removal of shared driveways, and more regular spacing of those driveways; and, the introduction of a pipe that would drain a depression in Luxford Street. As a matter of scale these variations are insignificant and it is highly improbable they would have attracted an adverse submission that was not provoked by the proposal in its original form. I am 1 T52-53 -- 3 of 10 -- 4 satisfied that under the tests established in this court those changes can only, properly, be described as minor 2 . [8] Council originally refused the application on the grounds that it involved the loss, to the community, of land dedicated for sport and recreation. While Council has abandoned opposition on that basis, it remains a primary argument in the co-respondent’s case. The issues notified by Mr Carter3 asserted a loss of amenity on that basis, and were also critical of some aspects of visual amenity; raised planning issues involving land use, town planning and need; asserted adverse environmental impacts both with respect to flooding, and the importation of large volumes of fill; claimed the development would create traffic problems; and, also alleged conflicts with various provisions of the Brisbane Planning Scheme, City Plan 2000. Some of these issues were not pursued in the final submissions delivered for Mr Carter, which asserted that the matters in dispute could be summarised in this way: (a) Whether the subject land ought to be used for a sport and recreation purpose (or some community purpose) rather than a residential purpose; (b) Whether the proposed residential use of the subject land is out of character with existing development in the area (being detached house residential development) and/or cause adverse visual amenity impacts; (c) Whether the proposed parkland corridor from Luxford Street to Gordon Thomson Park raises concerns about safety and anti-social behaviour; (d) Whether use of fill on the subject land will cause flooding or drainage problems; (e) Whether the proposed driveways for the proposed residential allotments give rise to new safety concerns for vehicles, pedestrians and cyclists using Luxford Street and/or Rosebery Terrace; (f) Whether the requirement to import fill for the proposed development will have an adverse effect upon the amenity of the area surrounding the subject land; (g) Whether the proposal conflicts with the planning scheme (in respect of the matters considered in paragraphs (a) to (f) above); and (h) Whether any adverse impacts from the proposal (in respect of the matters considered in paragraphs (a) to (g) above) can be excused, by way of approval of the subject development application despite those adverse impacts. [9] It is necessary to consider these issues in a way which recognises that, under City Plan and IPA, different tests apply to the three, different applications made by the appellant to Council. In particular, the application for approval for operational works (filling) and for reconfiguration are both code assessable under City Plan, while the application for preliminary approval for material change of use (MCU) is impact assessable. For the former, then, IPA sections 3.5.4 and 3.5.13 apply and require that the applications be assessed against applicable codes, and may be refused only if the court is satisfied that the development does not comply with 2 Sinnamon v Miriam Vale Shire Council [2003] QPELR 195, at 198; Ryan v Brisbane City Council [2005] QPELR 544, at 546-7 3 Exhibit 1, A102-105 -- 4 of 10 -- 5 those codes, or that compliance cannot be achieved by imposing conditions. The MCU component, however, attracts sections 3.5.5 and 3.5.14 and the latter, importantly, requires that the decision must not compromise the achievement of the Desired Environmental Outcomes (DEOs) for the area, or conflict with City Plan unless there are sufficient planning grounds to justify the decision. [10] Another overarching aspect involves the weight, if any, to be given to the Council’s decision, at the time of hearing, to approve the application with conditions. There is authority, which I accept, that the Council’s position should be accorded respect and commands some weight, particularly when resolving alleged conflicts occasioned by the code assessable components of the Development Application. In Mackay Conservation Group Inc v Mackay City Council and East Point Mackay Pty Ltd [2005] QPEC 094 at [56], Judge Robin QC said: [56] This is an adverse submitter appeal: all appeals in the court are a “hearing anew”; such an appeal, like a development appeal against refusal of a development application, is approached in practice in a particular way. Having regard to the onus provisions of section 4.1.50, the applicant is called on to make the case for the approval sought from the beginning; it is not at all a case of showing that the Council’s decision under appeal was right or was wrong. This does not mean, in my opinion, that the opinion of the Council should simply be ignored. Note the respect paid the Council’s fixing of building levels in Daikyo (North Qld) Pty Ltd v Cairns City Council [2003] QPELR 606. In a different context in which the local government’s stance was seen as perhaps too timorous, Cooroy Golf Club Inc v Noosa Shire Council [2005] QPEC 016, Judge Brabazon QC said: [154] If this appeal were to be decided by choosing between the planner’s conclusions, then the appellants would be successful. There is much that is persuasive in Mr Ryter’s report, as there is in the submissions for the appellants. [155] However, in deciding whether the planning grounds in favour of the application are, on balance, sufficient to justify approval despite the conflict, the status of Council’s planning intentions has to be kept in mind. The Council is the planning authority for the Shire. It has consistently and emphatically set out its intentions with regard to this land. Even if the Council’s views are really a counsel of perfection with respect to the catchment area, and if it is taking an overly cautious approach when that might not be necessary, respect still has to be paid to Council’s declared intentions. Even though the appellants have been largely successful in showing that the Council’s fears about water quality are probably exaggerated, that is not enough. For example, Council’s view is that a potential danger is to be avoided, by having no additional subdivision on this land. If the Council takes that approach, then it is not this court’s role to refuse to follow it. … The planning arrangements here very much leave it open what constitutes a comprehensive resort development. The Council, as the planning authority, have obviously determined that such a development is proposed by the co-respondent. I think some weight can be placed on that view, just as some weight might have been placed on the contrary view, if it had been espoused by the Council. There is no suggestion that views which were eccentric, outlandish or demonstrably wrong would be accorded similar respect. [11] The land was included in the Sport and Recreation Area designation when City Plan was promulgated in the year 2000. Relevantly however, it was also included within the Residential Neighbourhoods area, and was not identified as part of the Green Space System Element. It also falls within the Walter Taylor South District Local Plan which contains specific, additional local planning requirements and is -- 5 of 10 -- 6 intended to prevail to the extent of conflict with the requirements of City Plan4 . Under that Local Plan this land, unlike other nearby parcels including the Gordon Thompson Park is not designated as open space nor identified for retention, or for particular redevelopment (although it has recently been the subject of consideration during development of a Draft Concept Plan for Gordon Thomson Park which, on its face, contemplated residential development on the subject parcel5 ). [12] City Plan does not disclose how or why this land came to be designated for sport and recreation. In any event, the planning scheme does not appear to contain any proscription against land in that category being re-allocated for some other use, in the circumstances applying here (which, again, include an abandoned use; no sign of replacement with a similar use; designation within the Residential Neighbourhoods element, and, an absence of any mention in the Green Space system or Local Plan). It is true that clause 4.1.2.1 of City Plan6 suggests that some smaller areas which have recreational value may not be shown, but other open space and recreational facilities (including Gordon Thomson Park) are specifically identified, and reinforced in the Local Plan. [13] Evidence from town planners Mr Vann and Mr Dang, and Mr Chenoweth (an architect with expertise in questions of visual amenity) was persuasive that Chelmer already benefits from many other recreational facilities including nearby lawn bowls clubs, most of which are recognised in the Local Plan. This land has now, of course, passed into private ownership and has not provided any facility for sport and recreation for some years. It is impossible to avoid the conclusion, in those circumstances, that the present classification of the site was one which reflected nothing more than the historical intention of the owner of the land at the time City Plan was promulgated. As this court has said on other occasions, with the demise of that historical use, the importance of the designation may be diminished7 . That is unsurprising. In any town plan for an existing area there will always be some parts reflecting and tacitly acknowledging the present intentions and wishes of the owners of particular sites with existing, established uses. [14] Nothing in City Plan provisions dealing with the intent for the Sport and Recreation area suggests that when a sports or recreational use ceases on a particular site in that category, it must be replaced with another of the same kind - an absence which contrasts with provisions touching other, not dissimilar uses: for example, those pertaining to Community Uses, which specifically provide that when an existing community use on a parcel within that designation lapses, its replacement should be another community use8 . [15] The MCU, being impact assessable, is described in City Plan chapter 3 as “generally inappropriate” depending, however, on its location, design, and impacts; and the applicant must establish (“demonstrate”) 12 things including, relevantly here, that the proposal accords with the reasonable expectations and DEOs for the area; has a positive impact on the landscape, scenic quality and streetscape of the locality; does not detract from the appearance, environment or amenity of the 4 City Plan ch 4, p 257 5 Exhibit 5, pars 42-46, and Exhibit 8, par 4.3.3 6 Chapter 2, p 14 7 Leggett v Brisbane City Council [2002] QPELR 285; Handley v Brisbane City Council [2005] QPELR 80 8 City Plan, ch 3, p 61 -- 6 of 10 -- 7 locality; and, does not generate greater traffic movement or hazards than might reasonably be expected. [16] Mr Vann and Mr Chenoweth gave convincing evidence, confirmed during an inspection by the court, that a development of this kind will be consistent with, and complement the existing, surrounding development. That is unsurprising: the proposal simply involves the introduction of residential development into an existing residential area, with allotments compatible with the existing subdivision pattern. The proposed access arrangements are also similar to and compatible with access to all nearby lots on Rosebery Terrace, Luxford Street and Queenscroft Street. The evidence points, generally but strongly, to the conclusion that the criteria under which an applicant might defuse the ‘generally inappropriate’ categorisation have been amply met. [17] Nor is there any apparent conflict with other, relevant parts of City Plan. Indeed, the intent for residential neighbourhoods appears to encourage just this kind of development – here, high quality residential development close to convenient shopping, local parkland, schools, churches, hotels and clubs and a good transport system. It would also avoid through-traffic in residential locations, and protect views and, if properly done, maintain character9 . [18] There was no evidence suggesting the development would attract other, actual traffic problems. Mr Holland, a traffic expert called by the appellant, gave evidence on this aspect which was uncontested and consistent with plain observation and good sense. Eight residential lots are hardly likely to create measurable additional traffic, and that change occurs in the not insignificant context that the operation of the bowls club, or some other sport and recreation use on the land, would give rise to significantly more vehicle traffic. [19] The report from, and evidence of the town planner engaged by the co-respondent, Mr Panaretos, raised a myriad other, alleged conflicts with parts of the Planning Scheme but many were of little moment. An example is his attempt to allege conflict with the SEQ Regional Plan and a suggestion, in it, that there might be a significant increase in density in population in the form of a major centre within walking distance of the site which is, as yet, unreflected in City Plan. It is difficult to see how the subject development, which (as he conceded) is likely to provide high quality infill in exactly the kind of location envisaged in the Regional Plan, does not accord both with it and with City Plan’s intent for residential areas. [20] The same conclusions apply to his attempts to establish conflict with the Green Space system, and Residential Neighbourhoods areas. Nor did his evidence identify actual conflict with the DEOs; rather, he addressed provisions that might implement their city wide strategies (by which it is intended to achieve them) but that is not to the point of establishing some material compromise under IPA s.3.5.14(2)(a). For the sake of completeness, the evidence simply does not make out any conflict with the Walter Taylor South Local Plan. [21] The question of fill falls to be determined on a different basis – code assessment – and the Filling and Excavation Code has, overall, its Performance Criteria satisfied under the amended proposal which largely conforms to the associated Acceptable 9 City Plan, ch 2, pp 16-17, par 4.2.2 -- 7 of 10 -- 8 Solutions. Even if that were not so any matters falling short of compliance are plainly ones which could, in any event, be readily addressed through appropriate conditions as contemplated by IPA s.3.5.13. Some particular aspects of this and other codes were specifically addressed, and require a specific traverse. [22] An attack was mounted against the appellant’s ability to comply with Performance Criteria P1, and P3 of the Filling Code. The first provides that filling and excavation must not impact adversely on visual amenity, or the stability of the land. The filling of this land will not create an adverse visual impact, as both inspection by the court and the evidence of Mr Chenoweth established conclusively. There does not now appear to be any suggestion of a risk to the stability of the area. [23] P3 requires that filling must not cause any increase in flooding or drainage problems, and that was a matter which consumed a great deal of hearing time. The hydraulics experts called by the parties, Mr Roads and Mr Henwood addressed the potential effects of flooding, and of additional fill, in great detail. That is not unexpected - the land is low lying, and has flooded badly in the past. It was clear, from their evidence, that the park currently operates as something of a basin at times of heavy rain or flood events and the natural depression collects water until the Council drainage system can dispose of it. Relevantly, this did not appear to trouble the Council’s officers and I am generally satisfied that the proposal incorporates changes to the drainage scheme which should deal more quickly with intermediate flood events; and, that on the most pessimistic view there might be a small increase in flooding in Gordon Thomson Park during the most extreme rainfall. [24] Despite the detail to which this evidence descended there was no evidence that privately owned property would be affected and, ultimately, Mr Henwood was (properly and reasonably) prepared to concede that with some additional works it should be possible to ensure there would be no worsening of the present flood risk. Even without that evidence I was not persuaded the appellant could not satisfactorily address P3. As with the other Performance Criteria, absolute compliance is not mandatory and all that is required is that there be sufficient information to demonstrate that they have been met. The appellant has, then, satisfied the onus in respect of the flooding issue but the matter can be put beyond doubt by, simply, including in the conditions of approval a requirement that such works be undertaken in the proposed park area as are necessary to ensure there is no worsening of flood events. [25] Mr Panaretos also raised, albeit faintly, a claim of conflict with the House Code concerning the potential height of new dwellings on the filled land, but the court is not asked to approve a building height that will not conform. Other suggestions of conflict with the City Plan Subdivision Code fall to be considered on the basis the reconfiguration is code assessable, and is intended to occur in the face of an existing, not dissimilar, subdivision pattern. There was also reference to Performance Criteria for neighbourhood design10 but I am, again, satisfied from an inspection and Mr Chenoweth’s evidence that the proposal is most likely to be consistent and compatible with the existing layout of the neighbourhood, and with its visual amenity and character, and no conflict arises. (It seems, in any event, that these provisions would not apply to a subdivision, on this scale11 ). Nor is there 10 City Plan, ch 5, pp 230-231 11 City Plan, ch 5, p 227 -- 8 of 10 -- 9 substance in the suggestion that Performance Criteria P5 for lot layout12 is not met, or that there is any conflict with Performance Criteria relating to public open space – an allegation which is advanced notwithstanding that the area is, plainly, well serviced by parks; the proposal adds measurably to the size of the park; and, integrates with it in important respects. [26] Some attention was devoted during the cross-examination of Mr Holland to the traffic levels associated with trucks delivering the fill intended to be placed on the site. Again, this aspect of the case derives from the Filling and Excavation Code and, in particular, its Performance Criteria 7 which requires that traffic generated by filling or excavation must not impact on the amenity of the surrounding area. The Acceptable Solutions provide that truck movements should not occur for longer than four weeks, nor exceed 20 movements per day and the evidence did establish that is likely to be considerably exceeded here. Importantly, however, compliance with these Acceptable Solutions is not mandatory and these performance criteria call for a value judgment13 . In any event, and in truth, the proposal involves a common temporary management issue that can and should be the subject of appropriate conditions imposed by Council to minimise impacts from noise, dust and traffic movement and the like, as contemplated by IPA s.3.5.13(4). At worst, matters relating to this aspect of the application involve nothing more than surmountable inconvenience, and not actual conflict with part of the Planning Scheme. [27] The co-respondent also pressed a submission that the new park corridor to Luxford Street creates a risk to users from muggers and the like but the passage itself is wide, and will be bordered by dwellings on both sides. There was no evidence Gordon Thomson Park is already a gathering place for miscreants and indeed that would be surprising in a residential neighbourhood of this character. Any risk – which must on any view be minor – can be ameliorated with lighting and landscaping. [28] The co-respondent’s case also contained an assertion that the application should be refused in the absence of any evidence establishing need for residential development of this kind. It was not pursued in final submissions and is also absent, in any event, from the provisions of City Plan which set out what a developer must show to attract approval for impact assessable development which is generally inappropriate. (It was required when City Plan was originally conceived, but later withdrawn14 ). The evidence of Mr Vann and Mr Dang amply demonstrates this is appropriate land for additional residential development, in a highly desirable location. [29] Another point concerned the proposed driveways for the new residential allotments, and safety concerns for vehicles, pedestrians and cyclists using Luxford Street and Rosebery Terrace. Mr Holland’s evidence, mentioned earlier, was persuasive this was not, in truth, a material factor in an area which will remain a quiet, residential one. There was no evidence to support the allegation and it ignores the fact of seven existing allotments which, if filled (under an application which would be code assessable) would require not dissimilar access. On any view the proposal conforms to the ordinary expectations for established residential areas. 12 Chapter 5, p238-9 13 Jedfire Pty Ltd v Council of the City of Logan [1995] QPLR 41, at 43 14 Exhibit 7 -- 9 of 10 -- 10 [30] In the absence, as I have found, of any compromise of the DEOs, or conflict with City Plan in relation to the MCU it was not incumbent upon the appellant to attempt to meet the test in IPA s.3.5.14 by establishing sufficient planning grounds to justify the decision. While, in those circumstances, the exercise becomes hypothetical it would have been relevant and material that the proposal involves, as Mr Panaretos accepted, a residential development in an area which is desirable and attractive and already features dwellings of a high calibre; and, that the development is to occur in the context of an unattractive, disused site which does not suggest itself as appropriate for any other conceivable sport and recreation use, and was not available for parkland. [31] It follows that each component of the development application, as presently proposed, should be assessed as required by IPA and approved, subject to the imposition of appropriate conditions by the respondent including, for the reasons give earlier, conditions minimising the impact of the process of filling the land, and ensuring there is no worsening of flood levels in Gordon Thomson Park. I will adjourn the matter to enable the appellant and the respondent to settle those conditions, and others which may be necessary. The appellant’s written submissions also raised the costs of the preliminary point argued on the first morning of the hearing about which further submissions will be received, if necessary. -- 10 of 10 --