Dee & McKnoulty v Brisbane City Council & Anor [2002] QPEC 77 [2003] QPELR 343

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Dee & McKnoulty v Brisbane City Council & Anor [2002] QPEC 077 PARTIES: DEE & McKNOULTY Appellants v BRISBANE CITY COUNCIL Respondent and GEOFFREY THOMAS Co-respondent FILE NO/S: P& E Appeal No.3931 and 3932 of 1999 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 19 December 2002 DELIVERED AT: Brisbane HEARING DATE: 16-18 September 2002 JUDGE: Judge Quirk ORDER: Appeal dismissed CATCHWORDS: COUNSEL: Mr W Everson for the appellants Mr M Rackemann for the respondent Mr R Traves for the Co-respondent SOLICITORS: McCullough Robertson for the appellants Brisbane City Legal Practice for the respondent Minter Ellison for the co-respondent [1] These appeals, by submitters against the respondent’s decision to grant a permit for a material change of use and a preliminary approval for building work namely -- 1 of 7 -- 2 extensions to an existing dwelling on riverfront land at Yeronga, were heard together for convenience. [2] The application was made and dealt with by the Council prior to the introduction of City Plan. The former Town Plan was the Transitional Planning Scheme under the Integrated Planning Act. Under the Town Plan the subject land was included in the Residential B Zone. Ordinarily, construction of the kind contemplated would not have required Town Planning consent but because part of the existing residence (and the intended extensions to it) are within 20 m of the river’s high water mark, the development is permissible development (s 7.3.4.1). [3] It is noted that under City Plan the proposal would be code assessable rather than impact assessable (although the relevant codes appear more stringent). In any event the parties to the appeal presented their cases against a background of the applicable provisions of the Town Plan and I agree that it would be appropriate to determine the case principally upon that basis. [4] The appellants raised something of a threshold question in that it was suggested that the proposal was, in reality, not an extension but inevitably involved a demolition and rebuilding. A good deal of time was spent in examining the design of the proposal (although admittedly this is at a relatively embryonic stage). The appellant sought to show that there would be substantial practical difficulties or at least inordinate expense in carrying out the work which the proposal involved. [5] To support these contentions, evidence was called from the well known and respected architect, Robin Gibson who was the architect to the existing residence on the land. For reasons which he outlined, Mr Gibson has serious concerns about the -- 2 of 7 -- 3 feasibility of what was proposed and also evidenced some distaste for the design of the new residence. [6] One would ordinarily not treat lightly the views of someone of Mr Gibson’s eminence but the matters of which he spoke are not determinative of the presence case. It is not for this court to instruct the co-respondent where his best interests lie either in matters of taste or in respect of the cost of the proposal. [7] He has taken the advice of his architect, Mr Murray whose view it is that the extensions can be carried out as indicated in the proposal, important features of which are:
the original building footprint is retained;
the original slab is retained;
the original walls will substantially be retained although, of necessity, structural alterations will be required so that the weight of an additional storey may be borne. [8] Apart from some modifications to the ground floor area there will be a second storey but this is hardly an unusual feature of a proposal which involves “extensions” to an existing dwelling. Mr Murray’s evidence was that there would be considerable savings in extending as opposed to rebuilding the dwelling. I am not prepared to reject his evidence. In any event the proposal put forward is entitled to be considered on its merits which must be tested having regard to existing planning controls and acceptable planning practice. An approval of this proposal -- 3 of 7 -- 4 would not open the way for another which would involve an entirely different concept. [9] Another matter which took up some time but proved to be really inconsequential was a debate about the exercise of identifying where the “20 metre setback” line ran. In this area some commonsense is necessarily called for. The Council, in dealing with such matters, has settled on an approach which involves taking a distance of 20 metres from the relevant AHD along the property side boundary and plotting a line parallel to the existing river line. Whatever other message might be argued for, the practicality of this approach is plain enough. [10] Again, as far as the really determinative issue is concerned, it did not appear to matter much. The co-respondent’s principal witness on the question of view impact, Mr Chenoweth, explained that whatever approach was adopted would have little consequence for the opinion which he formed. [11] The results of his study of the impact of the proposal upon the views of neighbours are methodically and graphically set out in his report. His evidence was not seriously challenged and I accept it. This material indicates that while the new residence will not be any closer to the river than the old one, the addition of a second storey will have some impact on views from adjoining residences. It is noteworthy that any views affected will be oblique rather than directly to the river. [12] The other matter of consequence in this appeal is to decide what is the appropriate “yardstick” to determine whether the new situation would represent an unacceptable worsening of the position of the adjoining owners. To put it another way, at what -- 4 of 7 -- 5 point would an acceptable imposition upon neighbours become so unacceptable that the relevant application should be refused. [13] This is a question which must be answered by reference to relevant planning controls. The necessity for town planning consent has arisen because of the location of part of the proposal within the 20 metre riparian setback. Provisions relating to this setback appeared in a number of passages in the Town Plan. Section 19.9 (supported by planning policy 19.06) sets out a general provision that for land located upstream of the William Jolly Bridge, the erection of a building or structure within the 20 metre setback is unlikely to be approved. Section 19.9 of the Town Plan however, does not apply to land included in a residential zone for which specific provisions apply in s 7 (see s 19.9.4). Section 7.3.4.1, while making development within the right period setback permissible, does not contain any particular pre-requisite or pre-condition to the granting of such an approval. [14] Such guidance as is to be had in respect to the exercise of the relevant discretion is found in the Statement of Aims and Objectives of the residential zones and in particular in s 7.1.9 which reads as follows: “A 20 mere setback of any swimming pool, building or other structure from the high water mark of the Brisbane River is to be provided. The setback is to maintain a green space buffer and vista along the River and ensure that views of the Brisbane River and the 20 metres on either side will only be impeded by trees and other natural landscape elements. It is expected that properties fronting the River should incorporate substantial landscaping on river frontages. Town Planning consent approval may be granted for development within 20 metres of the high water mark of the Brisbane River only in instances where that development will not obstruct or impede or otherwise adversely affect views from or across the River or from adjoining properties to the River. Hence, existing and future residents will be able to choose their place of residence with: -- 5 of 7 -- 6
confidence that their views of the Brisbane River and the 20 metres on either side will only be impeded by trees and other natural landscape elements; and
an expectation that any building or structure to be constructed within 20 metres of the Brisbane River must not adversely affect the views enjoyed by residents from adjoining properties to the River.” [15] It would seem fair to say that the major planning objectives that emerge from these provisions involve:
a community benefit flowing from the provision of a treed and landscaped area along the riverbank to a depth of 20 metres;
a benefit to the residents of adjoining properties in that their views to the river (and of the landscaped buffer) should not be adversely affected. [16] Of the first of these matters, there has to be accepted that the approval of the existing dwelling compromised the green space buffer to some small extent. The present proposal would not result in any further intrusion upon it and, on the contrary would, by reasons of the conditions of approval, strengthen the integrity of the buffer by the carrying out of further landscaping. I am well satisfied on the evidence that this proposal would not adversely impact upon the specific community benefit to an extent that would call for its rejection. [17] It is the second of the mentioned matters that is of most concern to the appellants. However having considered the evidence given on the point, I prefer the assessment of Mr Chenoweth which indicates that the added impact of the proposed extensions (when compared to a “compliance structure”) is minimal. This was a view that was shared by the Council’s Planning Consultant, Mr Kay. Provisions such as this one -- 6 of 7 -- 7 must be sensibly construed. If the words “obstruct or impede or otherwise adversely affect” were understood in an absolute way there would be few examples of development within the 20 metre zone that could be approved. [18] Section 7.1.9 places emphasis on views “to the river” and while I accept that the question of adverse effect upon views of the vegetated buffer are not to be ignored it appears to me that, in this case, the splendid views to the river enjoyed by adjoining properties have not been impaired in any important way and any adverse impact that might occur would not be such as to warrant the proposal’s rejection. [19] Questions were also raised in respect of “overlooking” and invasion of privacy. Here again I believe it is valid to compare what is here proposed with what might otherwise lawfully occur. The fact that adjoining residences have been constructed well back from the 20 metre zone has also exacerbated any difficulties that might arise in this area. [20] On the whole of the evidence I am satisfied that the onus of showing that the application is one that should be approved has been discharged. The appeal is accordingly dismissed. -- 7 of 7 --