Brown v Brisbane City Council [2005] QPEC 26 [2005] QPELR 629

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Brown v Brisbane City Council [2005] QPEC 026 PARTIES: SCOT BROWN Appellant v BRISBANE CITY COUNCIL Respondent and STRATAFIELD PTY LTD Co-respondent FILE NO/S: Appeal No 1333 of 2005 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 29 April 2005 DELIVERED AT: Brisbane HEARING DATE: 4, 5, 6, 8 April 2005 JUDGE: Skoien SJDC ORDER: Appeal dismissed. CATCHWORDS: Housing diversity and affordability in Low-Medium Density Residential Area; amenity to be protected; boundary clearance; landscaping; open spaces. COUNSEL: Appellant in person Mr B. Job for Respondent Mr S. Ure for Co-respondent SOLICITORS: Brisbane City Legal Practice for Respondent. MacDonnells for co-respondent. [1] This is an objecting submitter’s appeal against the Council’s approval of Stratafield’s development application for a material change of use of land at Windsor to allow the development of a multi-unit dwelling. Mr Brown is a practicing town planner who resides not far from the site of the application. -- 1 of 13 -- 2 The Site and Locality [2] The site comprises 2 allotments, (lots 1 and 3) at 165 Eildon Road and 41 Silvester Street, Windsor respectively. Together lots 1 and 3 form an “L” shape containing 1,247m2 . The lots have road frontages of 16.093m and 15.088m respectively and each has depths of approximately 40 metres. Lot 1 is orientated from south to north and lot 3 from west to east. The site surrounds land at the corner of the two roads, upon which a small scale mower sales and repair business operates in a “character” building which is likely to remain. An existing detached “character” tin and timber house stands at the frontage of each of the lots. At the rear of each is an area which has some trees. The entire site is relatively level but the neighbouring land slopes upward from each street so that as one moves from each road the site becomes progressively lower than the neighbouring land, reaching its lowest point in the north east corner of the site. [3] In the City Plan the site is contained within the Residential Neighbourhood Element of the Strategic Plan, and has a Low-medium Density Residential (“LMR”) Area designation. It is also located within a Demolition Control Precinct (“DCP”). It is close to a railway station, a bus route and arterial (or sub-arterial) roads as well as schools and shopping centres. The Brisbane central business district is relatively close and easily accessible. [4] The locality is of a predominantly residential nature, comprising a mixture of detached dwellings and unit development. Many of the detached dwellings in the immediate locality are of a pre-1946 character. The overall amenity is that of a pleasant, leafy, residential character. The proposal [5] The proposed development is for the establishment of a multi-unit dwelling on the site. Six residential units are proposed, including the two existing character dwellings which are to be retained. Within the site will be three new two storied buildings to permit, in total, five three bedroom units and two two bedroom units. Each building is to be of the traditional timber and tin style. The gross floor area (“GFA”) of the proposal represents 47% of the site area. Eight car parking spaces are proposed, being six spaces for residents and two spaces for visitors. A one-way access driveway is contemplated with an entrance from Silvester Street and exit to Eildon Road. [6] Various changes have been made to the proposal since its approval by the Council. There was no suggestion that those changes were other than minor for the purposes of section 4.1.52(2)(b) of the Integrated Planning Act 1997 (“IPA”). I find that they were minor changes and will decide the appeal on the amended plans. See IPA s.4.1.52(2)(b). IPA [7] The proposal required impact assessment. Section 3.5.14(2) of IPA provides: “(2) If the application is for development in a planning scheme area, the assessment manager’s decision must not: -- 2 of 13 -- 3 (a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or (b) conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision.” [8] Those tests suggest that there is a distinction to be drawn between the concepts of “conflict” and “compromise”. While paragraph (b) enables the assessment manager to consider whether sufficient planning grounds exist to approve an application which “conflicts” with the planning scheme, no such entitlement is given by paragraph (a) when the application is considered to “compromise” the achievement of a desired environmental outcome (“DEO”). [9] As far as the reference in s.3.5.14(2)(a) to “compromise” is concerned, the Explanatory Notes to IPA provide, in relation to section 3.5.14, that an impact assessment decision must not “threaten” the achievement of a DEO. That accords with the most appropriate definition of “compromise” in the SOED which is “imperil” or “endanger”. So for a development proposal to compromise the achievement of a DEO, it must be of such a nature it will clearly threaten, imperil or endanger the planning outcome which is sought by the DEO. Relevantly that planning outcome is expressed by para (a) to be one for a “planning scheme area” (here the LMR) rather than for a specific site or locality, or, as is the case for para (b), the planning scheme generally. Further, as a consideration of the existence of sufficient planning grounds is not afforded when para (a) applies it is obvious that the provision contemplates a threat to the DEO which is so serious that no regard to ameliorating planning grounds can be had. City Plan 2000 [10] Chapter 3, s.2.5.2 of the City Plan records that Impact Assessment development is assessed against the whole planning scheme, including relevant codes in Chapter 5. This provision reiterates the contents of IPA s.3.5.14(2) (a), discussed in paras [7]-[9] above. In the same section, under the heading “Generally appropriate impact assessable development”, there appears the following provisions: “the level of assessment tables for each Area identify the generally appropriate impact assessable development for which adverse impacts are usually able to be mitigated. Only when those impacts are effectively mitigated will the proposal be approved. A code may be identified against which such a proposal would be assessed to determine its appropriateness. In these cases the proposal is assessed against the whole planning scheme including the relevant Code”. [11] As s.3.5.14(2)(a) of IPA and Chapter 3, s.2.5.2 of the City Plan emphasise, DEOs play a major role in the attainment of desired planning principles for Brisbane. In Chapter 3, s.5.1.1 there appear DEOs applicable to all residential areas which include: “1. A range of housing types, sizes, tenures and affordability is provided throughout the city to enable residents to remain in their neighbourhood for their entire life if they wish. -- 3 of 13 -- 4 2. Housing is predominantly low density, with higher densities in or near Multi-purpose Centres and near public transport. 4. Dwellings have reasonable access to daylight, sunlight and breezes and have privacy.” and in Ch. 2 ss.3.2.2 and 3.5.2 city wide DEOs include (a) DEO 3.2.1 which seeks, among other objectives, to provide housing diversity and affordability through provision of a wide range of housing types and tenures across the City to meet the affordability, life cycle and lifestyle needs of different households; (b) DEO 3.3.1 which endeavours to promote a unique environment, including preservation of the City’s timber and tin architecture. Strategies in support of that DEO include the development of more compact communities that use and re-use land and other resources more efficiently and restrict urban sprawl, and the protection of character buildings; and (c) DEO 3.5.1 by which a compact urban structure is envisaged and varied housing densities so as to help reduce urban sprawl. [12] Section 5.4.2 of Chapter 3 sets out DEOs specifically for LMR areas which are: “1. Low-medium density living environments comprise houses, among multi-unit development at a house-compatible scale, predominantly of no more than 2 storeys. Higher densities and 3 storey buildings occur new Multi-purpose Centres, near public transport and along arterial roads. 2. The Area has a mix of housing types and forms 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. 3. Natural features such as creeks, gullies, waterways and vegetation are retained where they add to the character and amenity of the Area. 4. In Demolition Control Precincts pre-1946 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes. [13] Those DEOs mirror and expand upon the intent of the LMR as expressed in s.5.4.1 of Chapter 3. It is noteworthy that among those expressions of intent in s.5.4.1 is the provision that where the development is close to public transport or on arterial roads a gross floor area of 60% maximum (as opposed to the general maximum of 50%) may be allowed. [14] Within the Strategic Plan (Chapter 2 of the City Plan) there is further emphasis on the provision of a range of housing choices and affordability. See ss.4.2.1, 4.2.2. [15] The Strategic Plan, in my view, also supports the proposition that when considering the question of amenity effects of the proposal, the accent is on the effect upon the existing neighbourhood rather than the amenity of the proposal itself. Thus, s.4.2.2.1 states that: -- 4 of 13 -- 5 “People should be able to choose their residential location with realistic expectations for the future amenity of the area. The Plan’s strategic direction in this regard are to: • prevent intrusion of development that could seriously detract from residential amenity.” and the Plan’s strategic directions are to: “mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy.” and: “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.” [16] That is not to say, of course, that the City Plan encourages slum development or anything approaching that. To be realistic, the provisions of the City Plan (especially the Codes) and the legislation dealing with building standards would prevent that. But leaving that extreme, standards of acceptability vary widely according to financial means and the wide expanse of personal likes and dislikes. A residential development which, for example, has no particularly attractive views, is not handy to shopping, has a southern aspect and does not contain large living areas, or generous recreational open spaces would not attract some buyers or renters. But its reduced sale or rental price would attract others. The City Plan recognises and encourages that. It must be remembered that the buyers or renters of the new residence choose to buy or rent the residence with features (or lack of features) which some other people might consider a detraction. Those features are not foisted upon them. [17] Having made the statements of principle (city-wide and specific to particular areas) which I have set out, the City Plan then descends in Chapter 5 into particularity. It does this by creating a Code for each Area, setting up certain performance criteria and in respect of each performance criterion, acceptable solutions. In Ch 5, s.1.1 explains how to use the Codes thus: “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 … 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 -- 5 of 13 -- 6 insignificant details, will be refused where it cannot be conditioned to mitigate impacts.” [18] The applicable code in this instance is the Residential Design – Low Density, Character and Low-Medium Density Code (the “LMR Code”): to be found in Ch. 5, s.4.3 (Ch. 5 pp. 167 et seq). The Issues [19] The issues in the appeal, as it was finally argued, can be summarised under four broad headings: conflict with City Plan; amenity of proposed residents; amenity of neighbours; and over development. Conflict with City Plan [20] Many of the grounds raised by Mr Brown, while nominally addressing other principles, in fact fall conveniently under this heading. [21] An approach adopted by Mr Brown throughout the evidence and in his submissions is that the Council demonstrably failed to give adequate consideration to Stratafield’s proposal. In my view that would not, even if established, amount to a valid ground of appeal because of the nature of the appeal. It is an appeal by way of hearing anew (IPA s.4.1.52). That means that the court must make its own decision on the propriety of the development and in this Stratafield bears the onus of proof (s.4.1.50). [22] Irrespective of that, the material which was referred to in the course of the appeal did not lead me to doubt that the Council had given proper attention to the development application. There was no unusual haste in the processing of the application. Council officers made a series of requests for further information. Ultimately the report of the responsible planning officer, although in summary form, indicated that attention had been given to all relevant matters. This is supported by the fact that in all but a handful of matters the proposed development complied with the acceptable solutions laid down by the applicable Codes. [23] Mr Brown’s case was critical of a “tick the box” approval which, it was said, was adopted by the Council. It was argued that a detailed site analysis ought to have been carried out in order to advance the purpose of IPA. It was submitted that a fully Code-compliant development might still “fail to achieve the broader outcomes identified by the Planning Scheme with respect to the purpose of the Code, the DEOs established for the Residential Area designations and the City wide DEOs prescribed by the Strategic Plan”. [24] Mr Brown failed to provide an example of a fully Code-compliant development which would contain those fatal defects. Furthermore the provisions of Ch. 5, s.1.1 (cited in para [17] above) set out what the City Plan (which is a statutory instrument) says about the matter. It is true that it preserves the over-riding importance of the purpose of the Code and the City Plan’s DEOs but it is clear that achievement of the Performance Criteria -- 6 of 13 -- 7 (generally by meeting all Acceptable Solutions) and if necessary by the application of conditions to mitigate any potential adverse impacts, will result in a successful development application. The accent is on compliance with the Performance Criteria, as the last sentence of s.1.1 makes clear. [25] Having discussed these issues in his written submissions Mr Brown, as I understand them, does not identify any Code purpose or DEO which the development proposal fatally compromises except to submit that this development will not be a good neighbour to adjoining development, that it fails to create acceptable standards of amenity for its proposed residents, that the site is too narrow and the development is inappropriately planned. These particulars can, I think, be dealt with as aspects of the general discussion of the disputed issues and it is first appropriate to turn to the question of compliance with the Codes. Compliance with the Codes [26] (a) Frontage Performance Criterion P1 of the LMR Code provides: “Development size and bulk must be consistent with the low to medium density of the locality”; and Acceptable Solution A1.3 provides: The site area is a minimum of 600m 2 and has a minimum frontage of 17m2 . [27] This site area is more than twice the minimum specified but each frontage is slightly less than the minimum specified (see para [2] above). But as Ch. 5, s.1.1. (see para [17] above) makes clear, there may be alternative acceptable solutions and Mr Dang, Stratafield’s consultant planner, pointed to reasons why the site’s reduced frontages nevertheless provide acceptable solutions. First, there is the minor extent of the shortfall. Second, there is the large overall area of the site. Third, the two existing buildings maintain the existing streetscape, with the new buildings to be largely shielded from view from the streets, so there is unlikely to be a sensation of building bulk when viewed from the streets. Fourth, the one-way traffic proposal allows for a narrower driveway than might otherwise be necessary or desirable. [28] Then, despite the site being narrower than is specified, it is wide enough to permit the proposed dwelling houses to cover only 47% of the site, 3% less than the general maximum and 13% less than what might arguably be permitted (see para [13] above). Finally, as elevations of the proposed dwelling houses reveal, the finished effect, as viewed from adjoining land, will be of buildings of generally suburban dimensions which do not loom over neighbours. [29] It is true that, with an extra metre (or two) of width there could be deeper landscaping, particularly along the western boundary. But on the evidence of Ms Neales, Stratafield’s consultant landscape architect, I accept that it is possible to provide plantings along much of that boundary which will provide a visual screen of the commercial building to the west. -- 7 of 13 -- 8 [30] In my opinion, it is appropriate to take a pragmatic approach to this question of allotment width to concentrate on what practical effort any deficiency has (Cf. Tod v BCC (2004) QPELR 170 at [36]-[37]). I am satisfied that the matters raised by Mr Dang provide acceptable solutions and that the widths of the site in this case satisfy performance criterion P.1. (b) Rear Boundary [31] Whether a site has one or two rear boundaries, and if only one, which, can be a vexed question. Does this site have one rear boundary, no rear boundary or two rear boundaries? [32] On the map, the rear of lot 1 abuts the southern boundary of lot 3, and lot 3’s rear boundary abuts the neighbouring land to the east of the site. So it may be that, strictly speaking, there is one rear boundary, the latter. However if one takes the amalgamated site, while it might be argued that there are now two rear boundaries, that to the east and another to the north, I think that would be wrong. It is difficult to see how a site can have two rears. Furthermore, how is it that a boundary which was once the side boundary of lot 3 can be transformed into a rear boundary? [33] While I lean towards the view that there is one rear boundary, the rear of lot 3 (i.e. abutting the land to the east) I do not need to make that finding. It favours the appellant’s case that both boundaries be described as “rear” because Acceptable Solution A13.3 provides: “The minimum rear boundary set-back is 6m. Note, minimum set- backs do not apply to eaves and sun-shading devices.” and permitted site boundary set-backs, being considerably less, do not present a problem here. In fairness to the appellant’s case I will assume the site to have the two rear boundaries I have identified. Unit 4 in the northeastern corner of the site encroaches to about 4.2 m. of the northern boundary and as close as 0.2 m (mostly 3m) of the eastern boundary. [34] But Performance Criterion P.13, that the Acceptable Solution is designed to support, is: “Development must not significantly reduce daylight to open space and habitable rooms in adjacent development”. “Boundary walls must be limited in dimensions and openings, to minimise the impact on neighbours”. [35] Unit 4 will be built on land which is considerably lower than the neighbouring land. No specific criticism of Unit 4 was based on the second paragraph of Performance Criterion P13 and it is obvious that the walls which are adjacent to the boundaries will have no real impact on neighbours because of the height differential. The side wall of the existing dwelling on lot 1 encroaches, but it was not suggested that this house, which the City Plan -- 8 of 13 -- 9 clearly seeks to retain and which has been there in that position for many years, amounts to an impediment to the development. And as to the first paragraph of P13, Unit 4 is to the south of one and the west of the other neighbouring allotment and a considerable distance from the house on each, which could not possibly be deprived of sunlight by Unit 4 when built on the site. In these circumstances I consider that the positioning of Unit 4 is an acceptable solution and that Performance Criterion P13 will be achieved. (c) Height of Retaining Walls [36] Performance Criterion P8 provides that: “The location, height, extent and materials of retaining walls must be designed to minimise visual impact” and Acceptable Solution 8.1 provides: “combined height of retaining wall and fence does not exceed 2m.” [37] In the vicinity of units 4 and 5 there is to be a stepped retaining wall with, on top of it, a fence of 1.5m. In total, this would exceed 2m. But the overall height would be visible only to the occupants of units 4 and 5. The neighbours would see simply the 1.5m fence at the rear of their allotments and would not see the retaining wall at all. I see what is proposed as an alternative acceptable solution. [38] In the context of the provisions of the City Plan which, as I have said (para [15]) stress the amenity of the existing neighbours, the planned retaining wall complies with both P8 and Acceptable Solution 8.1 If the effect of the wall on the occupants of units 4 and 5 should be relevant, then it seems to me that the proposed light coloured stone and landscaping would provide an alternative acceptable solution. In this connection I refer to para [16] above. (d) Landscaping Code [39] As Mr Job, for the Council, has pointed out, condition 13 of the approval requires submission of a detailed Code-compliant landscape plan for approval before site works commence. So at this stage detailed consideration of the landscaping which is proposed is really premature (cf. Crane v BCC (2004) QPELR 1 at [29]). However, as it has been raised, evidence given, and submissions made on it, it is appropriate to deal with it. [40] Mr Chenoweth, a landscape architect and Mr Darroch, a town planner (who is in fact a business associate of Mr Brown) expressed some concern about the trees which were to be removed but really, only one large tree was identified by Mr Brown in his cross examination of Ms Neales. Ms Neales described it as “stressed”. It is important, in my opinion, that no expert described it, or any other tree, as “significant”, the term used in Acceptable Solution A2.2 which I assume should be interpreted in its secondary meaning of “important”. It is also noteworthy that Acceptable Solution A2.1 seeks the retention of -- 9 of 13 -- 10 trees “wherever possible” which clearly is well short of a blanket injunction on their removal. All in all I find that no significant vegetation is to be removed. [41] Performance Criterion P9 is: “Acoustic barriers and long fences along road frontages and within the development must be screened.” and Acceptable Solution A9.1 provides: “Recessed areas, at least 1.2m deep, are provided at regular intervals along the fence line, over a minimum of 25% of the length of the fence.” and Acceptable Solution 9.3 provides: “Trees, shrubs and ground covers are planted within these recesses.” [42] It is evident that the proposed development does not comply with A9.1 or A9.3. None of the fences will have recesses. However, the fences along the eastern, southern and northern boundaries will be landscaped and will display pleasant trees and shrubs. The western boundary will have landscaping for about half of its length and a wooden acoustic wall of 1.8m in height along the other half (to reduce noise from the commercial building). Although the space available for the bamboo which is proposed as part of the landscaping is very limited I accept Ms Neales’ evidence that her experience has been that with irrigation it will grow and survive. [43] In my view what the Performance Criterion P9 is designed to avoid is the creation of developments hemmed in by stark walls and fences. That is not likely to be the result in this development. Given the overall length of the boundaries and the quantity and quality of the landscaping which is planned I consider that an acceptable solution is proposed. (e) Open Spaces [44] In the LMR Code the following Performance Criterion appears: “P9. Development must provide sufficient communal and private open space for residents’ needs.” and Acceptable Solution A9.1 is: “A9.1. A minimum 30% of the site is provided as open space each with a minimum dimension of 2m.” [45] Although in the course of the evidence this issue was dealt with in some detail, Mr Brown’s ultimate written submissions did not emphasise it. I should however deal with it, -- 10 of 13 -- 11 partly in deference to the fact that Mr Brown, being a layman, may perhaps have overlooked it when preparing his submissions. [46] I accept the evidence of Mr Dang that the proposal complies with the Code with respect to the provision of 30% of the site as open space with a minimum dimension of 2m and private open space of a minimum area of 35m2 with a minimum dimension of 3m for each of the dwellings. The plans are dimensioned and, as the evidence ultimately established, comply with the Code. [47] The principal difference between the approach of Mr Dang, Mr Kay and Ms Neales on the one part, and Mr Darroch on the other part, was that Mr Darroch did not recognise as open space the area of the courtyards under the small overhangs of the building above, or the vegetated areas in the retaining walls. Both these areas contribute to the enjoyment of the units, whether in an active or a passive way and are properly regarded as open space. [48] A relevant factor to take into account in assessing the provision of open space is that the 30% open space nominated by Stratafield as an acceptable solution is calculated by reference to areas which are properly private to the individual dwelling units. A substantially larger area would be available for active recreation. The driveway occupies a large area and would be a practical place for children to play, having regard to its low speed environment and the fact that only some 35 vehicle movements per day are likely. [49] I accept the evidence of Ms Neales that the landscaping proposed for the areas of community open space and private open space will be attractive and in keeping with the landscaped character of the area. As to the criticism levelled by Mr Chenoweth about the suitability of one or two of the varieties of plants she has chosen, given that the final landscaping plan is to be submitted to the Council before site works commence (see para [39]) she will have the opportunity to revise and perhaps refine the plan she tendered before me. [50] According to Ms Neales (and I thought at least tacitly accepted by Mr Chenoweth) none of the trees which are to be removed are ‘significant’ and would not make any great contribution to the character of the area. In any event it is evident that the creation of any development of the type proposed (which the city Plan broadly sanctions) would threaten most, if not all, of them. [51] It is also the fact that Ms Neales’ landscaping plans make provision for the use of storm water for the benefit of the plants and trees to be incorporated in the landscaping. Amenity of Proposed Residents [52] While I have decided that it is the amenity of the neighbours of the proposal which is to be most jealously protected (paras [15]-[16]), I do not suggest that the amenity of the residents of the new units is to be ignored. It can confidently be said that the City Plan promotes, for them, developments which, within the limits of affordability and choice of habitation, (paras [11]-[14]) reasonably attempt to make the best of the site. -- 11 of 13 -- 12 [53] In this regard the criticisms levelled by Mr Brown and his colleague Mr Darroch mainly related to the sunlight available to the units. [54] It was suggested during the evidence that some would receive too much western sunlight in summer, although this was not really emphasised in final submissions. However I record that in my opinion the proposed tree plantings will provide shade to Unit 1 and to Unit 4 which will also receive shade from Unit 5. It seems to me that Units 2 and 3 will benefit from the bamboo to be planted which, on the evidence of tendered photographs, can prosper. [55] A great deal of emphasis was placed on lack of sunlight to the rear courtyards of Units 4 and 5 in the winter months. It is the fact that the actual paving of those courtyards will receive little sunlight in winter but whether that will be complete shade depends somewhat on the thickness of vegetation on the adjacent boundary fences. However it is obvious that some direct sunlight would fall on people sitting or standing in parts of the courtyard. Considerable sunlight would be available to the living rooms facing onto the courtyard through their sliding glass doors. The upper floors of each unit would of course have no barrier shading them from winter sun. All in all, I cannot conclude that those units would be starved of winter sunlight. Their relative lack of winter sunlight would no doubt reduce to some extent their sale or rental prices, to the benefit of the incoming residents and in furtherance of City Plan provisions. All in all I cannot find, in this issue, a conflict with the City Plan. Amenity of the Neighbours [56] As I think I have sufficiently discussed in these reasons, the size and scale of the proposed development, the site’s level being below that of much of the neighbouring land, the code- compliant site cover and gross floor area, the landscaping, the fact that the building to the west is a commercial one and the preservation of the two frontage buildings all go to make me confident that there will be no unreasonable detriment to the existing amenity. Added to that is the very minor traffic generation to be expected. Over Development [57] This has been sufficiently debated in the earlier parts of these reasons. I find that the site cannot be said to be over-developed. Summary [58] A broad thrust, if not the chief thrust, of Mr Brown’s argument was that a development application should not be approved unless it represents a step forward in urban planning. I think that Utopian approach puts too high a duty on developers and moreover could encourage them to advance personal, perhaps idiosyncratic, ideas of excellence at the expense of the provisions of the City Plan. And it ignores the fact that the City Plan is the statutory embodiment of the vision which the elected representatives of the residents of Brisbane have enunciated after exhaustive professional assistance and contribution from the public. Each successive planning scheme and each successive amendment to it has -- 12 of 13 -- 13 represented a considered re-assessment and, we should accept, a considered improvement in the vision for the development of the City and the physical well-being of its inhabitants. So I see no philosophical difficulty in simply deciding an application according to whether it has complied with the City Plan. If it does in all respects it should be allowed. If it does not, then s.3.5.14(2) of IPA applies, as to which see paras [7]-[9]. Conclusion [59] I accept the evidence of Mr Dang and Mr Kay. There has been no compromise of the desired environmental outcomes for the planning scheme. There are some minor matters which might arguably amount to conflicts but I have great difficulty in describing them so highly. For convenience I set out and adopt the summary given by Mr Kay in his report: “The proposed development provides an outcome that is consistent with the Intent for the Area in which it is located and Desired Environment Outcomes applicable to the Area in question as well as meeting the purpose of the relevant Codes. The development proposed satisfies the Acceptable Solutions for the relevant Codes with minor exceptions. Those exceptions relate to width of the site and possible non-compliance with a 6 metre rear boundary setback. The variations to the Acceptable Solutions are such that, in each case the Performance Criterion is still met. In my opinion, the minor variations are not such that would warrant refusal of the application. The development proposed will be consistent with the balance that City Plan seeks to achieve with the various objectives of seeking housing alternatives, housing choice, reduction in urban sprawl, increasing densities in appropriate locations, maintenance of existing amenity and the efficient use of existing urban infrastructure. In my opinion, there is no conflict with the provisions of City Plan and this proposal does not compromise the achievement of the DEOs. However, if there is found to be conflict, that conflict would be minor and would not warrant refusal of the application.” [60] Stratafield has met the required onus of proof. The appeal is dismissed. -- 13 of 13 --