Bell & Ors v Brisbane City Council & Gardiner [2005] QPEC 24 [2005] QPELR 557

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bell & Ors v Brisbane City Council & Gardiner [2005] QPEC 024 PARTIES: LUCY and ANDREW BELL; BEULAH and ROBERT ANDERSON; PAUL and SALLY WALKER; LINDSAY EADON; CARMEL MACARTHUR; REGINALD and SHIRLEY O’BRIEN, PETER BROWN; STEPHANIE THOMSON; and SHARON and IAN DRIVER Appellants v BRISBANE CITY COUNCIL Respondent and NEIL and LESLEY GARDINER Co-Respondents FILE NO: BD2636/2004 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court, Brisbane DELIVERED ON: 13 April 2005 DELIVERED AT: Brisbane HEARING DATE: 29 & 30 March 2005 JUDGE: Alan Wilson SC,DCJ ORDER: 1 Appeal dismissed 2 Otherwise adjourn the matter to 9.15am on 22 June 2005 for review (or such earlier date as the respondent and co- respondent may agree). CATCHWORDS: PLANNING LAW – PRELIMINARY ISSUE – whether change to approved plans are minor changes – Integrated Planning Act 1997, s 4.1.52(2)(b) PLANNING LAW – SUBMITTER APPEAL – MULTI- UNIT DWELLING – AMENITY – TRAFFIC – COMPLIANCE WITH CODES – whether conflict with planning scheme CASES CONSIDERED: Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 216 Bell v Noosa Shire Council [1983] QPLR 311 Papas v Brisbane City Council [2001] QPELR 446 -- 1 of 7 -- 2 Tod v Brisbane [2004] QPELR 170 COUNSEL: Mrs Lucy Bell, Appellant, appeared on her own behalf; Appellant Mrs Beulah Anderson made oral submissions at the conclusion of the hearing Mr W L Cochrane for the respondent Brisbane City Council Mr G R Allan for the co-respondents SOLICITORS: Appellant Mrs Bell represented herself Brisbane City Legal Practice for respondent John H Harris for the co-respondent [1] This is a submitter appeal against Council’s grant of a development permit involving a material change of use, and preliminary approval for building work for a multi-unit dwelling on two parcels at Wambool Street, Bulimba, with conditions. The original appellants were more numerous but some withdrew before the hearing and only Mrs Bell appeared throughout. Two others made written and oral submissions at the end of the hearing. [2] The site, comprised of Lot 84 on RP 12589 and Lot 1 on RP 12617, Parish of Bulimba, was formerly occupied by two dwelling houses which have been demolished. It contains 1,518m2 and has a frontage of almost 30m to Wambool Street. It is on an elevated ridgeline above Oxford Street at Bulimba, and slopes down from the Wambool Street frontage with a fall of approximately 4m to its rear, western boundary. It also slopes, more gently, from south to north across the site. It is located within an established residential area containing a mixture of houses and unit developments. To the north, in and around Brisbane Street, the area is characterised by older housing. To the south the Oxford Street business area is within comfortable walking distance. [3] As an inspection of the site and the locality showed, the character of Wambool Street in this vicinity is significantly influenced by existing brick and tile unit developments which appear to have been built in the 1970’s and 80’s. One immediately adjoins the site to the south and west, and there is another across the road. This mixture of development types means the section of the street around the site does not exhibit a coherent streetscape or a strong, unified building theme. [4] The proposal involves the construction of a multi-unit development in three buildings, incorporating a total of seven units, with a single point of access from Wambool Street. Building height does not exceed 8.5m above natural ground level. The buildings will be separated by a central driveway and visitor car parking spaces. There is a retaining wall and landscaping proposed at the rear, western boundary. The plans have changed slightly from those attached to the development approval, and those propounded now appear in Appendix 2 to the report of a town planner, Mr Ovenden.1 [5] The changes involve the relocation of three recycling bins; provision of an access door in one unit from a garage to a courtyard; the reconfiguration of courtyards in three units, but with no change to the overall courtyard area for all three; and a minor (11cms) change in setback at one point. One any view, the changes are minor within the meaning of the term as it is used in the Integrated Planning Act 1 Exhibit 2 -- 2 of 7 -- 3 (1997) (IPA), whether the test is that used, variously, in this court in Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 216 or in Papas v Brisbane City Council [2001] QPELR 446. The changes are, in the scheme of this proposal, most unlikely to have attracted additional submitters and they are also, overall, very small changes to the original plans and, in that sense, ‘minor’ within the usual meaning of that word. [6] The development will consist of 4 x 3-bedroom units, and 3 x 2-bedroom units with onsite parking for 14 vehicles (10 tenants and 4 visitors). Five of the seven units have balconies on the upper levels and all have private access to small grassed courtyard areas. [7] The issues notified in the appellants’ Notice of Appeal were many and various. A number were based upon a misunderstanding of IDAS (the assessment scheme under IPA) or of the development process under the relevant planning scheme, Brisbane City Plan 2000 (CityPlan). At trial the primary issues had condensed to: (a) planning issues – in particular, whether the proposed medium density development was in conflict with any part of the planning scheme, and met the required codes; (b) matters conveniently collected under the heading of amenity – the effects of the development on surrounding residences and their privacy, the streetscape, stormwater runoff, landscaping and the loss of old vegetation; and, (c) traffic. The planning issues included allegations of excessive building height; excessive overlooking of adjoining residences; inadequate setbacks; and the insufficiency of proposed landscaping for ameliorative purposes viz a viz these drawbacks. [8] Evidence about planning matters was received from Mr Ovenden and Mr Kay, town planners, and about traffic from Mr Holland. Mrs Bell presented some notes of her own of a conversation she had with a town planner in which certain deficiencies in the plans were alleged. She did not call the planner and the document was ultimately admitted as her own statement, over objection about its obvious hearsay elements. The statement did not contradict the evidence of Mr Ovenden concerning compliance with the relevant codes and its untested, hearsay nature means it can be accorded no weight. [9] Prior to CityPlan this land was contained within the Residential B zone of the former planning scheme with a residential development allocation of R3, which envisaged multi-unit development. It is now placed, in CityPlan, in a low-medium density residential area for which the Desired Environmental Outcomes 2 are: 1. Low-medium density living environments comprise houses, among multi- unit and single-unit development at a house-compatible scale, predominantly of no more than two storeys. Higher densities and 3-storey buildings occur near 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. 2 CityPlan chapter 3, clause 5.4.2 -- 3 of 7 -- 4 4. In demolition control precincts pre-1946 buildings are largely retained and new buildings reflect many of the precincts’ architectural themes. [10] CityPlan includes a statement of intent for development in this area, in these terms: The low-medium density residential area will contain a mix of houses up to two storeys and 2- and 3-storey multi-unit dwellings and single-unit dwellings. Land in this area is located in those parts of the city that are close to public transport networks and centres. During the life of this plan, a relatively small proportion of land in this area will be redeveloped for multi-unit residential. New development must therefore be designed to co-exist comfortably with neighbouring houses. This will be reflected in the intensity and scale of development and strict adherence to a maximum gross floor area of 50%, or 60% if in close proximity of public transport or on arterial roads.3 [11] In broad terms, this site and the surrounding area is contained within a residential neighbourhood identified under CityPlan. These are the most extensive elements of the city structure and are designated as suitable for varying forms of residential development, ranging from low to high density. Various parts of CityPlan contain broad strategic statements about these areas 4 . Clause 4.2.2 identifies the components of a strategy for residential neighbourhoods which, also, include broadly stated propositions designed to ensure housing choice and affordability while maintaining the amenity and character of individual areas.5 These residential strategies are also affected, in some parts, by Local Plans but, here, the Bulimba District Local Plan has no relevance. Mr Ovenden said, and I agree, that while the site is elevated it cannot be regarded as being in a visually prominent location, and none of the development principles of the local plan are directly relevant to its assessment. [12] CityPlan then descends to Codes, providing detailed performance criteria and acceptable solutions for multi-unit developments in areas including the low-medium density residential area. Compliance with these Codes is the preferred way of mitigating impacts and, as Mr Ovenden again said, and I accept, the degree of compliance with their purposes and provisions, in relation to design elements, is a strong indicator of realistic amenity expectations and character outcomes associated with new development. Each town planner assessed the proposal against the relevant Codes – Mr Ovenden, in a helpful table in which he set out the particular Performance Criteria, its Acceptable Solution under CityPlan, and his assessment whether or not the relevant aspect of the proposal was in accord with the suggested Solution or, otherwise, satisified the Criteria.6 [13] Both he and Mr Kay concluded that the proposal is in a locality which is strategically well placed for multi-unit development, being close to the CBD as well as the thriving local centre at Oxford Street, and to the public transport network including City Cat and ferry services. Both found there was a high level of compliance with almost all acceptable solutions and, where minor variations had been proposed, the proposal nevertheless satisfied the relevant performance criteria. That high level of compliance pointed to the conclusion, reached by Mr Ovenden and with which I agree, that the development satisfied Desired Environmental 3 CityPlan chapter 3, clause 5.4.1 4 CityPlan chapter 2, clauses 3.2.1, 3.2.2.1, 3.3.1, 3.3.2.1, 3.3.2.2 5 CityPlan chapter 2, clauses 4.2.2.1, 4.2.2.2, 4.2.2.3, 4.2.2.4 6 Exhibit 2, Appendix 3 -- 4 of 7 -- 5 Outcomes for areas in this category, and complied with CityPlan’s policies and strategies for development of residential neighbourhoods. [14] Mr Ovenden helpfully undertook, in his report, a traverse of the general grounds of objection which he extracted from the appellants’ (with respect) rather diffuse Notice of Appeal and, in s.6.0 of his report7 showed why each objection was without substance or materiality, or was unsupported by CityPlan. His assessment, and that of Mr Kay, showed the proposal is a form of development contemplated by CityPlan for the area; and meets CityPlan’s aims of providing diversity and choice of residential accommodation. [15] The only exception related to retaining walls and proposed treatments of them which would screen them in a way which, Mr Kay concluded, satisfied the relevant performance criteria (P8) although not strictly meeting the acceptable solution (A8.1). It is acknowledged that those solutions provide but one, suggested method of satisfying the criteria: Tod v Brisbane [2004] QPELR 170 per Robin QC, DCJ at 186. Mr Ovenden’s analysis8 addressed P8 and Acceptable Solutions A8.1 and A8.2 and is persuasive that, although the combined height of the retaining wall and fence does, at its highest, exceed two metres (it reaches 2.9 metres, reducing to two metres) their design, involving stepping, and their location towards the rear of the property, means their visual impact is not significant and is ameliorated by appropriate landscaping adjacent to the site boundaries. I accept his conclusion that this design satisfies A8.2. [16] Other issues raised by the appellants were shown, on examination, to have little relevance. One related to an assertion that one of the two parcels comprising the site contained a house which, at the time of its demolition last year, was on the verge of being included in a demolition control precinct which would have prevented demolition or removal. While there was evidence that council had mooted this possibility in correspondence around mid-2004, there was no evidence it had gone any further. I am satisfied that at the relevant time the only approval required for demolition was building approval, which the co-respondents received. [17] The proposal has a gross floor area of 759m2 which is 0.5 of the site area, a height of two storeys and a site area below the required ratio. The only evidence presented showed a building height of not more than 8.5m above ground level which satisfied the relevant performance criteria P1 of the Code. 9 [18] The appellants raised the previous destruction of vegetation onsite and possible future removal of the little which remains around the borders. The evidence showed that as part of council’s assessment a council ecologist inspected the vegetation question and concluded it did not reflect any species which were significant in the locality. Importantly, the proposal incorporates a detailed landscaping plan. Another concern of the appellants, about drainage, had been addressed in appropriate conditions. [19] The town planners were cross-examined by the appellants about the courtyards on the western boundary to be used by the unit owners in that building, and addressed concerns about the occupants’ ability to overlook, in particular, the neighbouring 7 exhibit 2, pp 15-18 8 exhibit 2, appendix 3, pp 4-5 9 Chapter 5, clause 4.3, page 167 -- 5 of 7 -- 6 back yards of properties to the west and north. In the course of approval Council amended the plans in some respects to enhance privacy aspects. These courtyard areas for the three units at the west are not common areas and will be used, in each case, by only one household. Overlooking is an inevitable and recurring concern on many sites on Brisbane’s many hills but it does not, here, involve unusual or unacceptable impacts or, indeed, any which are not expected features of low-set medium residential density development. [20] Nor was there any evidence to suggest other elements traditionally collected under the heading of amenity – noise, nuisance, appearance and like matters – were affected in a way which created adverse impacts, or compromised or created conflicts with the provisions of CityPlan (including its Secondary Codes). [21] This is a case in which the historical designation of the area under CityPlan obliges residents to anticipate that parcels will be put to any or all of the “as of right” uses and indeed has the potential to be developed, with the consent of the local authority, for other more intense purposes, subject to discretionary considerations. As Skoien SJDC remarked in Bell v Noosa Shire Council [1983] QPLR 311, at 313: Some general remarks can appropriately first be made. Because the proposed use is a consent use, it obviously is one which, in the overall scheme of the town plan, should be permitted in an appropriate case. Otherwise it would have been made a prohibited use. In my opinion an appropriate case is one in which one can give effect to the ancient right of a landowner to use his land for any lawful use he desires while at the same time protecting the modern rights (given by town planning schemes) of other landowners in the vicinity not to have the enjoyment of their land detrimentally affected to an unreasonable extent. The qualification “to an unreasonable extent” is obviously an unnecessary one, because any development of land almost certainly will have some detrimental effect on any land in the vicinity. Under a town planning scheme a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which that land may be put as of right. He must also be taken to contemplate that such a parcel of land may come to be put to one of the uses permitted with the consent of the local authority. Those are the expectations which he must be taken to have in relation to that parcel of land … the consent use was always possible; the real question is whether if the proposed use is established on the subject land it will substantially degrade the area, whether it would unreasonably disrupt the lives of the occupants of the neighbourhood. [22] As to traffic, the evidence of an experienced traffic engineer, Mr Holland, established on-site parking was adequate (subject to a minor re-design of the entranceway – which is, again, a minor change on any view) and there would be no unacceptable impacts on traffic flows in the street which are, presently, well below accepted limits. Mrs Anderson’s concerns about parking in the street reflect the growth of the Oxford Street area and new multi-unit developments elsewhere nearby but, as Mr Holland said, are still well short of capacity. The driveway for this development is near the crest of the ridgeline but sufficient distance from it to meet the criteria set up in CityPlan’s Transport, Access Parking and Servicing Planning Scheme Policy, Table 7. [23] There is no evidence the proposal involved a compromise of the DEOs for the planning scheme area, or of conflict with the planning scheme which compelled refusal: IPA, s 3.5.14. -- 6 of 7 -- 7 [24] I signify the appeal should be refused but also, for the moment, adjourned to allow the appellant and the Council to settle conditions concerning the minor changes discussed earlier, and the changes to the entrance layout suggested by Mr Holland. -- 7 of 7 --