Crane v Brisbane City Council & Anor [2003] QPEC 25 [2004]1 QPELR 1

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Crane v Brisbane City Council & Anor [2003] QPEC 025 PARTIES: RAYMOND L AND LYNDAL I CRANE Appellant v BRISBANE CITY COUNCIL Respondent And PAYCORP PTY LTD Co-Respondent FILE NO: 691 of 2003 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 10 July 2003 DELIVERED AT: Brisbane HEARING DATE: 10,11,12 June 2003 JUDGE: Skoien SJDC ORDER: Appeal dismissed CATCHWORDS: Multi-unit development over two existing allotments; preservation of character house; applicability of Assessment Codes; traffic; amenity COUNSEL: Mr J J Haydon for appellants Mr M E Rackemann for respondent Mr C L Hughes SC for co-respondent SOLICITORS: Nathan Lawyers for appellants City Legal Practice for respondent Hemming & Hart for co-respondent [1] This is an appeal by objecting submitters against the decision of the Council to allow a material change of use to permit a multi-unit dwelling on land in Rode Road, Nundah. -- 1 of 16 -- 2 The Site [2] The site contains two adjoining lots, a roughly square lot at the corner of Rode Road and Windsor Street on which a house stands which contains 700m 2 and a vacant rectangular lot fronting the western side of Rode Road which contains 633m2 . When it is necessary to distinguish between them I will call the former “the house lot” and the other “the vacant lot”. Together they make up an L shaped site, the corner lot comprising the base and the vacant lot the upright. The site has a total frontage to Rode Road of about 48m and to Windsor Street of about 20m. It slopes gently down from the Rode Road frontage towards the south. Rode Road runs roughly east-west. Windsor Street joins Rode Road from the south, forming a T junction. [3] The corner lot has on it a two storey wooden house of considerable charm and is a “character” house within the meaning of Chapter 3 of the City Plan. It is about 100 years old. However it is not included in either the Council or State Heritage Registers. [4] The site is within a Low-Medium Density Residential Area (LMDRA) and is also within a Demolition Control Precinct. It is about 500m from the Nundah Shopping Centre and the railway station. The Locality [5] The locality is developed predominantly with residential uses. Immediately to the west along Rode Road is the non-character house of Mr and Mrs James, then a character shop, then other detached houses. To the east there are some houses but -- 2 of 16 -- 3 quite near the site are a few three storey multi-unit dwellings and further afield quite a few two storey multi unit dwellings. [6] In Windsor Street there is a two storey non-character house beside the corner lot, in which the appellants, the Cranes, live. Beside that, further to the south, is a three storey multi-unit dwelling of no particular charm and next again is a two storey multi-unit dwelling directly opposite which are more of the same. So in the area there is a sprinkling of two and three multi storey unit dwellings. The demolition control area, which is on both sides of Rode Road begins just to the east of Windsor Street and extends well to the west of the site. [7] The locality has a pleasant amenity contributed not only by detached houses but also by the two and three storied multi-unit dwellings which in Rode Road have in the main been designed so as to fit in with traditional Brisbane housing concepts. [8] Rode Road may have begun life as a local access road but for many years has been an arterial road and will remain so. However it is ill suited to carry that status, being undulating and narrow. At the site, and generally, it is about 13m from kerb to kerb, and has a 60km/hr speed limit. It is heavily trafficked. For most of its length, certainly in the vicinity of the site, it is bordered by residential allotments which have vehicular access directly onto the roadway. It is unlikely ever to become more than a two way, two lane road with extra lanes possible only at major intersections. [9] Windsor Street and the other streets which join Rode Road in proximity to the site are local access roads. -- 3 of 16 -- 4 The Proposal [10] It is proposed to retain the existing character house on the corner lot and to construct a multi-unit dwelling comprising seven residential units that will stand almost entirely on the vacant lot but will encroach a little onto the corner lot. Thus, including the house, there will be a total of eight residential units. The multi-unit dwelling is to be three storeys in height. A total gross floor area (GFA) of approximately 799m2 (including the existing house) is proposed which is 60% of the site area. Carparking is to be provided on-site within the ground floor/basement level of the three storey building with the existing car parking to the house to remain. In total 13 spaces have been provided for the residential units (including the house) including three designated visitor spaces. Vehicular access to the proposed three storey building is proposed to be via a new vehicle crossover from Rode Road, and to the house at its existing crossover in Windsor Street. There is a bus stop in Rode Road just to the west of the planned crossover and a pedestrian refuge in the centre of Rode Road just to the east of the planned crossover. No parking is permitted in Rode Road adjacent to the site. Application Procedure [11] The Integrated Planning Act 1997 (IPA) provides the overall statutory planning framework for the State of Queensland. The Brisbane City Plan 2000, which came into force on 30 October 2000, should accordingly be read in conjunction with IPA. Sections 3.5.4 and 3.5.5 of IPA set out the provisions for assessing and deciding applications. As the applicant is proposing to establish a multi-unit dwelling an Impact Assessment (Generally Appropriate) Development Application is required. -- 4 of 16 -- 5 Public notification was carried out and submissions were received. There are no State Planning Policies relevant to the subject site. The development application does not require the involvement of referral agencies or trigger referral coordination. The City Plan [12] Section 2.5.2 of Chapter 3 of the City Plan requires development which is subject to impact assessment to be: “assessed against the whole planning scheme, including relevant Codes in Chapter 5 and any relevant Local Plan Code in Chapter 4.” As will be seen there is a relevant Code in Chapter 5. [13] The Strategic Plan (Chapter 3 of the City Plan) sets out the following Desired Environmental Outcomes (“DEOs”): a) s.3.2.2.1(a), “housing diversity and affordability – a wide range of housing types and tenures across the City to meet the affordability, life cycle and lifestyle needs of different households” b) s.3.2.2.1(b), “integration – new development that integrates with existing development” c) s.3.3.2.1(b), “efficiency – more compact, self-contained, smart, networked communities that use and reuses land and other resources more efficiently and restrict urban sprawl” d) s.3.3.2.2(b), “character buildings – protecting building that is sympathetic to the City’s character” e) s.3.3.2.4(c), “development mix/intensity – higher intensity development and mixed uses in accessible locations” f) s.3.5.2.1(a), “housing density – a variety of housing densities that will help to reduce urban sprawl.” -- 5 of 16 -- 6 [14] Specific provision is made in Chapter 3 for LMDRA, within one of which the site lies. Thus the intent of those areas is expressed in s.5.4.1:- “The Low-medium Density Residential Area will contain a mix of houses up to two storeys and two and three storey multi-unit dwellings. Land in this Area is located in those parts of the City that are close to public transport networks or 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 a strict adherence to a maximum gross floor area of 50%, or 60% if in close proximity of public transport or on arterial roads” [15] In Chapter 3, s.5.4.2, the LMDRA provisions outline a number of DEOs describing the expected physical future form of development. They include:- “1. Low medium density living environments comprise houses, among mult- unit development at a house-compatible scale, predominantly of no more than 2 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. In Demolition Control Precincts pre-1946 buildings are largely retained and new buildings reflect many of the Precinct’s architectural themes.” [16] The City Plan provides an assessment table for the LMDRA and states that development for a multi unit dwelling in that area is “generally appropriate impact assessable development where it complies with the Residential Design – Low Density, Character and Low-Medium Density Code and any pre-1946 buildings are retained”. See Chapter 3, p.31. This clearly emphasises the importance of that Code, which I will call the “L-M Density Code”. It is contained in Chapter 5, pp.165 et seq. The provisions relating to the LMDRA specifically are at pp.168 et seq. -- 6 of 16 -- 7 [17] The L-M Density Code comprises a number of elements which include the purpose, performance criteria and acceptable solutions. In Chapter 5, p.3 which explains the use to be made of the various Codes, this appears:- “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 whilst 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 insignificant details, could be refused where it cannot be conditioned to mitigate impacts.” The Issues [18] These can be considered under the headings of Statutory Compliance, Overdevelopment, Traffic and Amenity. Statutory Compliance [19] Mr Dang, the consultant planner called by Paycorp made the point that the proposed development is on Rode Road, an arterial road that has a regular Council bus service. It will comply with the three storey height and 60% GFA/site density which is permissible in such a location and it retains a character house as part of the development. See paras. [14] and [15]. [20] The design of the proposed three storey building is made relevant by s.3.2.2.1(b) (para [13]) and s.5.4.1 (para [14]). As to architectural themes, opinions can differ but the evidence of Mr Ferro, the architect of the proposed development which described his intentions is confirmed by my layman’s eye. The design in many ways reflects the traditional pre-1946 designs prevalent in the precinct and many other parts of the city. The Rode Road elevation displays a roof line broken by six -- 7 of 16 -- 8 gables. Tin and timber are visible, for example on the six traditional window awnings. Different building materials and four balconies are used to soften the appearance of the front wall. The fence is also softened by the insertion of wood panels. [21] The east elevation of the three storey building (the wall facing the Crane’s residence) has been designed to break up the severe outline of the building by the use of different types of materials, including lightweight cladding. The fact that the roof is corrugated metal is obvious. Mutual privacy between the two buildings is provided by the use of timber screens over the windows. The carpark is screened from view. Similar techniques are used on the west elevation. [22] The proposed development is designed to have a mix of three bedroom and two bedroom units, which is what is required by s.5.4.2.2 (para [15]) and s.3.5.2.1(a) (para [13]). [23] The provision set out in para [17] above is a clear statement that the acceptable solutions which are laid down in the applicable Code is the approach which the City Plan prima facie requires. I find it difficult to see how, that being so, an applicant who complies with the applicable Code, should reasonably expect to have the application measured against some other criteria unless, which is unlikely, the applicable Code contains a provision which is quite inconsistent with the City Plan read as a whole. In this appeal no such inconsistency was revealed. [24] This view of the importance of the L-M Density Code is emphasised in Chapter 5, p.165 (which sets out the L-M Density Code) where this appears:- “1. Application This Code will apply in assessing a material change of use … for a multi unit dwelling in …. a LMDRA.” -- 8 of 16 -- 9 and also “2. When this Code is listed in a level of assessment table in Chapter 3 … for impact assessment:-
the Code is to be read as being the Purpose, Performance Criteria and Acceptable Solutions.” [25] I accept the evidence of Mr Dang and Mr Kay, the consultant planner called by the Council, that in almost all respects this application complies with the acceptable solutions given by the Density Code. In their view, the exceptions are minor and the proposed alternative solutions are reasonable. I accept their evidence and do not think it necessary to set out details of these minor exceptions. [26] That is not the end of the matter however, because in Chapter 5, p.3, dealing with Performance Criteria and Acceptable Solutions, the City Plan states:- “For appropriate 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.” [27] I accept the submissions of Mr Rackemann for the Council that this provision does not re-open the question of compliance with acceptable solutions from a merit point of view. What it does do, in my opinion, is to leave open matters outside the performance criteria such as considerations of traffic and amenity. [28] In his report and oral evidence, Mr. Brown, the consultant town planner called by the Cranes, endeavoured to make the point that the City Plan, viewed as a whole, contained principles which were offended by the proposed development. However I am unable to see any principles he identified which are not referred to in the specific provisions relating to the LMDA. With one exception (compliance with the landscaping Code), his evidence consisted of his opinions on the effect of the -- 9 of 16 -- 10 development on amenity (both generally and specifically relating to the Cranes), whether the proposal amounts to overdevelopment of the site and whether the proposed three storey building was compatible with the streetscape of Rode Road and the neighbourhood. These are all matters of fact on which I have preferred the evidence of other witnesses. [29] So far as the Landscaping Code is concerned, (it being a secondary code), as Mr. Kay points out, consistent with the Code itself a condition of the Council’s approval was that a landscape plan be submitted. There is no reason to believe that a suitable plan cannot be prepared. Further consideration now of this aspect of the matter is premature. [30] Owing to an apparent hiatus in the relevant sections of the City Plan, it is difficult to say which of the various boundaries of the site is the rear boundary. Looking at the site as the combination of the two lots, I would say as a matter of common sense that it is the southern boundary of the vacant lot. If it is also the southern boundary of the corner lot, it would be the fact that for a few metres beside the proposed three storey building the boundary clearance is less than is prescribed. Ultimately, Mr. Haydon for the appellants accepted that if this is the case it becomes an amenity question. [31] In my view Paycorp has complied with the statutory requirements other than for minor matters which had been satisfactorily dealt with. Overdevelopment [32] This is a matter which has been covered in my discussion of Paycorp’s compliance with the acceptable solutions to the performance criteria. -- 10 of 16 -- 11 [33] I should deal, however, with the submissions of Mr Haydon that the amalgamation of the two lots for the purpose of this application is a stratagem to permit overdevelopment on the vacant lot. He argued that if a multi unit development took place on the vacant lot solely, one would be looking at a considerably smaller building, much more in keeping with the reasonable expectations of the submitting neighbours. [34] That is true, but the fact that the three storey building encroaches onto the corner lot ties that lot into the overall development. It is unlikely that an application to sever that part of the corner lot on which the character house stands would (or should) succeed, so the combined development will endure. Added to that is the obvious fact that Paycorp has offered the preservation of the character house as part of its proposed development. That is an outcome which the Plan actively seeks (see s.5.4.2.3, para [15]). A planning authority can properly take such a contribution into account in considering an overall development which is, in some respects, unusual. [35] Looked at objectively, I do not consider that the site is to be over-developed by this proposal. -- 11 of 16 -- 12 Traffic [36] None of the three expert traffic engineers who were called suggested that from a traffic point of view, the development (so far as the multi storey building is concerned) would be ideal. The proposed crossover is closer than is desirable to the pedestrian refuge and to the intersections of Windsor Street to the east and Kinmont Avenue to the west. If a vehicle were manoeuvring in the car park close to the entrance when another vehicle arrived that vehicle may have to stand briefly across the footpath. The driveway capacity and the existence of “no standing” signs in Rode Road outside the site would create difficulties when a furniture van had to be loaded or unloaded. The time taken for a rubbish truck to pick up and empty the ten bins allocated to the development complex would be likely to cause Rode Road traffic to come to a halt. If the units should have a large number of visitors, they would have to park in adjacent streets such as Windsor Street or Kinmont Avenue. [37] These defects have to be viewed in the context of the number of expected traffic movements to and from the site, the fact that Rode Road, although arterial, is also a local access road for the hundreds of residences which line it and the fact that the site (in particular the vacant lot) will certainly fulfil some form of residential use, thereby generating traffic in any event. On the evidence the number of car parks and their design are adequate. The event of a vehicle having to queue over the footpath is likely to be rare. So would be the involvement of a furniture van and on these occasions it could stand safely at the kerb for the duration of its stay, as would happen on any local access road. The defects relating to the proximity of nearby intersections and the pedestrian refuge are unlikely to cause danger, given reasonable driving practices. Delays caused by rubbish trucks once a week would be brief and unlikely to pose a problem. Drivers are accustomed to such delays. -- 12 of 16 -- 13 [38] The above paraphrases the views of Mr Beard and Mr Viney, whom I accept on the point. There is no basis for regarding the issue of traffic as a reason to refuse the application. Amenity [39] That amenity is a relevant concept is made clear by s.5.4.1 of Chapter 3 (cited in para [12] above) which talks of the new development being designed to co-exist comfortably with neighbouring houses, as well as the warning in Chapter 5, p.3 (cited in para [26]) about mitigation of potential adverse impacts. And see also s.5.4.1 of Chapter 3 (cited in para [14]). [40] On the question of amenity it seems to me that two areas have to be considered. One is the amenity of the wider area, which would encompass all those residences the views from which include the site and perhaps even also those who might live somewhat further afield but who regularly pass the site. The other is the amenity of the immediate neighbours, the Cranes and the James. [41] As to the wider amenity, the first and highly important consideration is that the character house is to be retained. To my mind a proposal which involves the retention of such a charming and historic house must, by that fact alone, receive tacit support. That retention is even more important when one realises that, with all of its qualities, as it stands now it is by no means a certainty that someone who applied to demolish and remove it would fail receive that approval. Such a person would argue, perhaps successfully, that the house does not form part of a character streetscape, because so many buildings of different styles and ages stand in close proximity to it. I think it quite likely that some of the submitters who objected to the proposed development were not aware of the risk to which the house was subject. -- 13 of 16 -- 14 So the retention of the character house importantly helps to preserve the existing amenity. [42] In my view the wider amenity would not be degraded by the erection of the three storey building. A residential building of some sort will certainly be built there. In all probability (if this application should fail) it would be a multi-unit building with a minimum of four units and possibly more. What Paycorp plans, of course, is larger than that but it seems to me that a reasonable nearby resident might well consider the extra size to be balanced by the retention of the corner lot character house, provided, as the City Plan requires, it can co-exist comfortably with neighbouring houses. Finally, as I have said, the Rode Road elevation drawings show that the building is designed to fit in with traditionally designed houses. (See para. [20]). [43] As to the amenity there are two neighbouring houses to consider, the James’s to the west and the Crane’s to the south. [44] The best assistance I can get to form a view of the likely effect on the James’s house is the Rode Road streetscape as shown on the architect’s elevation drawings. Because the James’s house is high set and stands uphill of the vacant lot the pitch of the house’s roof will be above the floor level of the third storey of the proposed building, to my eye, about a metre higher. The distance between the wall of the James’s house and the wall of the second storey of the three storey building, according to the scale, is about seven metres, a generous distance. Looking at the elevation drawing, the three storey building does not loom over the James’s house. Nor, incidentally, does it loom over the character house on the corner lot which is itself quite a tall house. Finally, as Rode Road runs east/west, it is likely that in winter the James’s house would still receive a fair share of early morning sun and -- 14 of 16 -- 15 by 10.00am be virtually unaffected by the building. This is borne out by the shade drawing produced by Mr. Ferro, exhibit 24. [45] The effect on the amenity of the Crane house would be greater. As I have said the three storey building has been designed with windows screened to provide mutual privacy and in other respects the finished wall has been softened so as not to be unsightly. In this connection one must bear in mind that at least a two storey building on that lot would be virtually inevitable, so the Cranes cannot complain that their current view across the vacant lot would be taken from them. [46] It is obvious that the three storey building will be high compared with the Crane’s house. In estimating its height I regret to say that I am not assisted at all by Mr Brown’s pole height experiment as set out in his report, exhibit 10. The poles were not stationed at any relevant place and I am unable to imagine what they would demonstrate if they had been. [47] The shade diagram produced by Mr Ferro shows that the morning mid-winter sun enjoyed by the Crane house would hardly be affected by the development because the only building shading it then would be the existing character house. At midday the Crane’s back yard pool would be partly in shade and that shade would increase in the afternoon. However Mr Crane does not swim in the winter months. It seems obvious that in the warmer months there will be very little loss of sun. [48] Undoubtedly the construction of the three-storey building will to some extent degrade the amenity presently enjoyed by the Cranes. But four points have to be made. First, any development at all on the vacant block would to some extent do that. Second, a householder must reasonably be taken to bear in mind that an adjoining lot will possibly be put to a lawful compatible use and this development is -- 15 of 16 -- 16 within that range of contemplation. Third, I do not consider that the degradation of the amenity will be substantial. The Cranes appear to co-exist amicably with the three-storey apartment block to their immediate south. Finally, I think it likely that a very important part of the Cranes’ amenity is directed to the east and north. That sector will be unaffected and the long-term preservation of the northern amenity is to a considerable extent brought about by this development which retains the house on that adjoining lot. Conclusion [49] In my view the application materially complies with the provisions of the City Plan. To the extent that there is a conflict I consider that it does not compromise the achievement of any DEO and further there are sufficient planning grounds to justify the acceptance of the application, particularly the compliance with those statutory provisions calling for diversity of types of accommodation, the use of land within an existing suburb (reducing urban sprawl), the preservation of the character house, and location of the development on a public transport network and close to the Nundah centre. [50] The appeal is dismissed. -- 16 of 16 --