Concept Five Architects & Anor v Brisbane City Council & Ors [2002] QPEC 69 [2003] QPELR 284

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Concept Five Architects and Welwyn Nominees Pty Ltd as Trustee for the Perrin Family Investment Trust v Brisbane City Council & Ors [2002] QPEC 069 PARTIES: CONCEPT FIVE ARCHITECTS and WELWYN NOMINEES PTY LTD AS TRUSTEE FOR THE PERRIN FAMILY INVESTMENT TRUST Appellants And BRISBANE CITY COUNCIL Respondent And JOSEPH ANDREW ORANGE First Co-Respondent And PETER EVANS Second Co-Respondent And VINCENT STEPHEN BARRY and SHONA LOIS KATHERINE BARRY Third Co-Respondent FILE NO: 1397 of 2000 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 6 November 2002 DELIVERED AT: Brisbane HEARING DATES: 18 February 2002 – 22 February 2002 & 8 April 2002 – 10 April 2002 & 5 August 2002 – 6 August 2002 & 8 August 2002 JUDGE: Judge McLauchlan QC ORDER: Appeal dismissed CATCHWORDS: COUNSEL: Mr S Ure for the Appellant Mr A Skoien for the Respondent The second co-respondent was self-represented The third co-respondent was self-represented -- 1 of 17 -- 2 SOLICITORS: Abbott Tout Solicitors for the Appellant Brisbane City Legal Practice for the Respondent The second co-respondent was self-represented The third co-respondent was self-represented The Appeal [1] This is an appeal from a decision of the respondent made on 16 March 2000 whereby the respondent refused an application made on 28 November 1997 for town planning consent in respect of attached, duplex, and detached houses at land situated at 194 Mayfield Road, Tarragindi. The application was for 33 dwelling units in all, comprising 6 detached houses, 3 attached houses and 12 duplexes. [2] The application was made under the provisions of the Local Government (Planning and Environment) Act 1990 and is to be assessed primarily with reference to the respondent’s 1987 Town Planning Scheme, now a superseded scheme in terms of the Integrated Planning Act 1997. In addition to that the Court is to give such weight to the new planning scheme, Brisbane City Plan 2000, as it considers appropriate. The latter scheme came into force in October 2000, almost three years after the application was made. The Issues [3] A decision notice was given by the respondent under s 3.5.15 of the Integrated Planning Act 1997. The following grounds for refusal were given:- “(i) The proposed development is inconsistent with Strategic Plan objectives 3.2.1 and 3.2.4. In particular, the proposed development fails to retain or restore the habitat and riparian -- 2 of 17 -- 3 amenity of the waterway corridor and natural drainage patterns, it will diminish the special landscape qualities of the site, it will be out of keeping with the character of the locality, and it would detract from the residential amenity of the surrounding area. (ii) The proposed development is inconsistent with Planning Policy 19.22. In particular, the proposed development fails to maintain or enhance the ecological, landscape and hydraulic functions of the waterway through the site. (ii) The proposed development will occasion a detrimental impact on the environment. (iv) Inadequate information has been submitted to enable a proper determination of the likely impact of the proposal on the environment. (v) Inadequate information has been submitted to demonstrate to Council’s satisfaction that stormwater will be effectively managed, as the proposed detention basin structures are not acceptable from an environmental point of view.” [4] Strategic Plan objectives 3.2.1 and 3.2.4 in the 1987 Town Plan, so far as is relevant provide as follows:- “3.2.1 It is intended that the future development of Brisbane will protect the City’s environmental quality and abundance of natural assets – clean air, the river and other waterways, the bay and islands, the bushlands and wetlands. This will be achieved by: 3.2.1.1 …………………………………………………….. 3.2.1.2 Protecting and enhancing the aquatic ecology and the quality of ground and surface water, including all wetlands, waterways and water bodies through: (c) retaining, enhancing and/or restoring the habitat and riparian amenity of waterway corridors, wetlands and foreshores; (d) retaining or restoring natural drainage patterns where practicable;” “3.2.4 It is intended that development will maintain and enhance the unique character and culture of Brisbane, including traditional buildings and the landscape features of the City while catering for the diversity of residents and their cultural associations. This will be achieved by: -- 3 of 17 -- 4 3.2.4.5 Ensuring that people are able to choose their residential location with realistic expectations of the future amenity of the area through: (d) ensuring that the development of land for residential purposes is consistent with the maintenance of an acceptable standard of residential amenity with consideration also being given to any loss of views from surrounding properties;” [5] Planning Policy 19.22 states that in determining whether or not planning approval should be given to any proposal, and the nature of conditions to attach to any approval, Council will have regard to the contents of the “Strategy Plan for the Management of Brisbane Waterways” and shall ensure that certain objectives are implemented. These objectives include the following:- “(B)(i) To ensure that physical development is set back from waterways to allow for the preservation and rehabilitation of vegetated riparian zones for physical and ecological processes, the maintenance of species and the establishment of wildlife corridors. For the development of currently undeveloped properties, as a general rule the setback will be 30m from the top of the high bank, although up to 60m may be required where sites are assessed to be of special ecological significance. The setback can vary on a site specific basis depending on individual circumstances such as presence of existing vegetation, flooding conditions, size and importance of the waterway and intensity of development proposed.” [6] Strategic Plan Map 1 identifies at a strategic level a preferred dominant land use pattern for the City, and includes the site in the Urban Area Preferred Dominant Land Use (PDLU). Section 3.3.2.1 of the Strategic Plan states that it is intended that the Urban Areas of the City will be predominantly developed for Urban purposes. Section 3.3.2.2 refers to the Social and Character aspects of the Urban Areas as follows: “(a) Social mix -- 4 of 17 -- 5 A social mix of the City and its local communities is made up by the diversity of people that reside there and take part in its community activities. It is intended to maintain the contribution social mix makes to the character and liveability of the City by assessing development proposals to ensure that, as appropriate to the type of development proposed, it: (i) is designed to integrate with, rather than be segregated from the existing development in the area; (ii) promotes access to the range of services, facilities and activities required to support the social and cultural needs of residents; or (iii) contributes to a range of housing in existing and newly developing areas to meet the affordability, life cycle and lifestyle needs of differing household. (b) Character … Development will be required to respect and be compatible with the character of the neighbourhood in which it is located, particularly in developed areas.” [7] The site is included within the residential A Zone. The intent of the Residential A Zone states that land included in this zone is intended to remain as an area of low density residential development. The predominant form of development in this zone will be for detached houses not more than two storeys in height. The site is in Residential Development Area R1. In relation to this the Intent states that attached houses and duplex houses may be approved subject to the consent of Council. Such development must comply with the requirements set out in para 7.6.3 for R1 development. [8] Section 7.6.3 sets out the RDA R1 requirements as follows:- “(a) The area of the site shall be not less than 5,000m 2 ; (b) Site cover should not exceed 35 per centum; -- 5 of 17 -- 6 (c) No building shall contain more than two storeys above ground level; (d) The gross floor area of the planning unit shall not exceed 30 per centum of the area of the site; (e) No part of: (i) A duplex house or attached house; or (ii) Any other structure other than a fence, used for a purpose of a duplex house or attached house; above the level of adjoining ground shall be within a distance measured on a horizontal plane – (i) of 2.5m; or (ii) equivalent to half the height of that part, whichever is the greater, from a side boundary of the site; and (f) No part of: (i) a duplex house or attached house; or (ii) any other structure other than a fence, used for the purpose of a duplex house or attached house; above the level of adjoining ground shall be within a distance measured on a horizontal plane of 6m from the rear boundary of the site.” [9] In addition to the alleged failure to comply with provisions of the Strategic Plan in the 1987 Town Plan there is also alleged non compliance with the Strategic Plan in City Plan, particularly the desired environmental outcomes and strategies for the natural environment and waterways and in particular sections 3.1.2.1, 3.1.2.2 and 3.1.2.3. Section 3.1.1 states as a desired environmental outcome, that “Brisbane’s environmental quality and natural assets are protected and restored and contribute effectively to no net loss of biodiversity, the management of public health and the social and cultural wellbeing of the community. These qualities and assets include aspects such as the City’s rivers and creeks, wetlands, bushlands and forested hills.” Section 3.1.2.1 states a Citywide strategy to achieve the DEO, which is to maintain and restore the City’s biodiversity through: -- 6 of 17 -- 7 (a) natural assets - identifying, assessing, protecting and restoring the City’s significant natural and semi-natural environments, fauna and flora habitats and ecological processes and linkages; (b) development control - restricting development in environmentally sensitive areas and incorporating measures to mitigate and manage adverse development impacts. [10] Section 3.1.2.2 states a further strategy in the following terms:- “Enhance the aquatic ecology and the quality of ground and surface water, including wetlands, waterways and water bodies through: (a) water areas - retaining, enhancing and/or restoring the habitat and riparian amenity of waterway corridors, wetlands and foreshores (e) development control - avoiding inappropriate development on land adjoining water bodies, waterways and wetlands. [11] The respondent also contends that the proposal conflicts with desired environmental outcome No 2 in s 5.2.2 in Chapter 3, which states:- “Neighbourhoods have a distinctive subtropical character where low rise buildings are set in green landscaped areas. Natural features such as creeks, gullies, waterways and vegetation are retained.” [12] Development for multi-unit dwellings within the Low Density Residential Area is subject to the Residential Design – Low Density Character and Low Medium Density Code, which, in turn directs attention to a series of “secondary” Codes including the Biodiversity Code, the Stormwater Management Code and the Waterway Code which may be relevant to the assessment of the proposal. It is the respondent’s position that the proposal conflicts with each of these Codes. [13] Apart from the issue of compliance or non-compliance with the planning documents there are town planning issues in relation to amenity impacts upon adjoining -- 7 of 17 -- 8 residents as a result of the intensity of the development along the western boundary of the subject land (ie around the Playfair Street cul de sac), and further amenity impacts at the north eastern corner of the subject land in relation to the construction of units 1-4 in the vicinity of the overland flow path and the loss of vegetation on the north eastern boundary of the overland flow path. There are also safety issues to be considered by reason of the close proximity of units 1-4 to the overland flow path. [14] There are, in addition, water issues in relation to the adequacy of the proposed stormwater drains along the western boundary of the subject land, and the adequacy of the treatment of the stormwater from the proposed development, and there are environmental issues concerned with loss of vegetation on the north eastern boundary of the overland flow path, loss of vegetation types on the site, the narrowing of the access to and from Toohey Forest as a result of the proposed construction of units 32 and 33, and the location of parts of the proposed development within the gully, such as the construction of the road bridge on the north western side of the gully, the construction of stormwater pipes and armouring at two locations on the northern side at the base of the gully the construction of the pedestrian foot bridge, and the edge effects of the construction process (ie the disturbance of soil and vegetation beyond the edge of the footprint of the proposed development as it is shown on the Plans of Development. The Site [15] The site has an area of 20,915m 2 . It is a strangely shaped area of land due to the fact that it is substantially surrounded by residential development in the form of -- 8 of 17 -- 9 detached housing and that there is a gully system running through the site and occupying a large portion of it. The streets surrounding the site are Pallaranda Street to the north of the site, Windmill Street to the east, Mayfield Road which is partly formed and partly consists of a road reserve to the south, and Strathfield Street and Playfair Street on the west. Residential development surrounding the site proceeds up to this gully or up to land generally speaking to the west of the gully which also forms part of the site. There is, as indicated residential development in Pallaranda Street and in Windmill Street but none at the intersection of those two streets, where the site has a frontage of 54m. There is also no residential development in the road reserve which is part of Mayfield Road, where the site has a frontage of 73m, this being the location of the factual connection between the site and Toohey Forest. [16] The land in general slopes from the south western corner to the north eastern corner and the gully which has been mentioned runs from the south of the subject land to the north eastern corner. At least two branches of the gully exist at the southern end of the site and they combine to form a single gully falling towards the north eastern end of the site and terminating before the corner in a flattish area which has been called the “overland flow path”. There is a further area of gully in the north western portion of the site which is to be dedicated as a conservation area. Water from the gully is presently piped below the overland flow path. [17] The proposed residential development upon the site occurs between the existing residential development to the west and north and the gully which lies on the eastern part of the land. The proposal has the appearance, to me, of being “squeezed” between these barriers. -- 9 of 17 -- 10 The Gully [18] The gully, which is an ephemeral watercourse, constitutes an important constraint upon development on the site. The disputed issues in the appeal comprise, broadly speaking, town planning issues, water issues and environmental issues. The environmental issues, in general, relate to the gully and the need to protect it. There is debate about the extent to which the gully possesses flora and fauna values, including the extent to which it has value as a habitat, but it is not suggested by any party to the appeal that the gully itself does not require protection in the event of development upon the site. Indeed, the appellants’ proposal is not only to protect but to rehabilitate the gully. The appellants’ broad proposal for protection of the gully, is to remove the weed which allegedly at present infests the waterway and to re-plant the gully in some measure with native plants, and to protect the gully and the flora therein by dense plantings from the top of the western bank of the gully down the side of the gully to a specified distance. This method of protection is not acceptable to the respondent and its expert witnesses who say, in effect, consistently with the planning documents, that proper protection of the gully system requires a buffer of at least 10m in width between development and the top of the bank on the western side of the gully. The appellant’s ecological witness, Mr James Warren, states in his report:- “Most of the land surrounding and downstream from the subject site has been developed for residential purposes. The ephemeral gully descends into an underground storm water network beneath subdivided land for a significant distance before re-emerging as part -- 10 of 17 -- 11 of the broader waterway system of Sandy Creek. Effectively the site is isolated from lower parts of the waterway system. It is intended to retain the upper portions of the waterway that runs through the site in a manner that will enhance the ecological values of the gully (Queensland Building and Construction Group 2000).” Subsequently in his report, Mr Warren concludes (inter alia): “The potential for adverse impacts on the ecological landscape and hydraulic functions of the waterway (ephemeral watercourse) is minimal given that there will be no development within the gully system and proposed dwellings have been relocated at an increased setback from the gully. The proposed development incorporates a significant rehabilitation component, which is likely to enhance the ecological, landscape and hydraulic function of the ephemeral intercourse.” Dr Coral Rowston, the ecological witness for the respondent states in her report that: “The gully system is one of the significant attributes of the site. The vegetation within and immediately adjacent to this system is riparian in nature, containing plant species typically found along waterways and drain lines. Riparian habitat is considered important for a number of reasons including:
habitat for species reliant on riparian areas and their associated water resources (i.e. frogs and a number of bird species),
refuges for native animals in times of environmental stress such as drought and fire,
protecting water quality through provision of shade, uptake of organic matter and enhancing sedimentation,
stabilisation of banks and assisting in the prevention of damaging erosion events,
provision of linear strips allowing the movement of wildlife.” [19] It is clear that no one suggests that any development should occur within the gully itself, that is below the top of the bank line and that the absence of any such development is fundamental to the appellants’ case. This throws into sharp relief the necessity for that line to be established by satisfactory evidence. There are in evidence plans showing the top of the bank at the southern end of the site and along -- 11 of 17 -- 12 the western bank. Unfortunately these plans do not show the same information. Exhibit 3 includes a sketch plan which purports to identify the top of bank line on the western side of the gully, subject to two areas where alternative top of bank lines are given. It may be that it was intended to lead evidence to establish which of these lines was the true top of bank line, but in fact in the hearing of the appeal no surveyors were called with a view to establishing this. However during the course of the hearing a concession was made on behalf of the appellants that if it should be thought that the correct line, in the areas mentioned was the western-most line then that position would be accepted by the appellants with the possible consequent loss of some units from the development. [20] Since neither side apparently intended to call any surveyors or other witnesses relevant to the question where the western top of bank line should be located, it seemed to be understood that at the commencement of the hearing all parties were content with the position as portrayed in Exhibit 3. [21] During the hearing however it transpired that Exhibit 3 required some modification in relation to the top of bank line at the southern end of the site and this was achieved, after an adjournment for that purpose by the production of Exhibit 25. The result of this was to add to the gully at the Mayfield Road end, that is, to define a new line for the top of the gully in that area closer to Mayfield Road, if fill is to be taken into account in identifying the top of bank line. The Exhibit did not alter the line for the top of the bank as it had previously appeared in other respects. [22] Subsequently, in the course of the respondent’s case the appellant tendered a further plan showing the top of the bank line, which became Exhibit 33 in the proceedings. -- 12 of 17 -- 13 The Exhibit is a survey which was conducted in 1997, being the year in which the application in the present case was made. The survey appears to have been tendered because on the sixth and seventh days of the hearing the appellants produced further evidence in relation to water issues, which evidence relied upon spot level surveys in the vicinity of the overland flow path in the north eastern corner of the site. Following a request for disclosure and production of the survey upon which that further evidence was based, the appellants disclosed a survey of the subject site by Dawson Fisher Stewart, dated 20 February 1997. The Exhibit shows a location for the top of bank line for the entirety of the western side of the gully. The line sits either on, or to the west of, the top of bank line depicted in Exhibit 3, and runs generally along the western edge of the two shaded areas of doubt on Exhibit 3. [23] The appellant has objected to the use of this plan as evidence relevant to the location of the top of bank line at the south western end of the gully, and along the western bank of the gully. Broadly speaking the objection is based upon an alleged agreement between the appellants and the respondent to the effect that the top of bank line would be taken to be as shown in Exhibit 3, subject to the two areas of doubt shown thereon. The second objection is on the basis that the survey plan was tendered only in relation to water issues and not in relation to the location of the top of the bank line. The contention with respect to an agreement between the appellants and the respondent depends on matters set out in an affidavit sworn by Mr Perrin exhibiting a number of items of correspondence. It does not appear to me that this material establishes any such agreement as is alleged. It no doubt reflects an understanding between the parties as at the commencement of the hearing which has already been referred to, and an expectation that there would be no survey evidence called in the case apart from Exhibit 3, but it does not seem to me to go -- 13 of 17 -- 14 beyond that. As is pointed out on behalf of the respondent, this expectation did not prove to be correct in relation to the south western end of the gully and, in any case, the further evidence was tendered by the appellants, not the respondent. Further, there is no reference in the transcript to the document being tendered subject to any qualification, such as that it should be treated as relevant only to water issues and not to the issue of where the top of the bank line should be located. Moreover, Mr Skoien, who appeared for the respondent, made it clear in his examination of Mr Collins in relation to Exhibit 33 that the respondent was treating the Survey Plan as relevant to the issue of the true location of the top of the western bank. No objection was made to that on behalf of the appellants, or in respect of Mr Skoien’s intimation to the Court that an overlay would be prepared showing the top of bank line in relation to the proposed development. [24] It is true that the 1997 survey was made some time ago but I see no reason why its value should be lessened by that, or by the circumstance that the subsequent survey was carried out by the same firm. The 1997 survey was made at a time when the land would have been less heavily vegetated, the present heavy vegetation being the reason why the line cannot presently be determined with certainty along the whole of its length without the removal of vegetation. [25] No surveyors were called by either party so that the Court did not have the benefit of any professional assistance for the purpose of understanding and giving appropriate weight to each of Exhibits 3, 25 and 33. [26] In my view the conclusion is inescapable that the 1997 Survey Plan is now evidence before the Court on the issue of the true top of bank line. It is plain that the survey -- 14 of 17 -- 15 plan (Exhibit 33) is relevant to that issue. It is also admissible evidence in relation to that issue. There is no judicial discretion of which I am aware, to reject relevant and admissible evidence before the Court because of any agreement between the parties that such evidence should not be given. The fact, if it were a fact, that the evidence came before the Court in breach of any such agreement would not, in my view, entitle the Court to reject it, even if the evidence had been tendered by the respondent. The evidence would certainly not be rendered inadmissible by any such agreement. The Court has an obligation to take into account in determining any issue in a proceeding before it, all evidence which is admissible and relevant to that issue, at all events in proceedings where there is a public interest to be considered, and not just the private interests of the parties. Where there are only private interests to be considered the parties may presumably agree facts for the purpose of the proceedings; but it does not follow that such an agreement will be enforced against a party who wishes to take advantage of relevant and admissible evidence tendered contrary to such an agreement, although such conduct may no doubt result in appropriate adjournments and costs orders being made. It is interesting to note the provisions of section 191 of the Evidence Act 1995 (C’wth) which are as follows:- “ 191 (1) In this section: agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed. (2) In a proceeding: (a) evidence is not required to prove the existence of an agreed fact; and (b) evidence may not be adduced to contradict or qualify an agreed fact; unless the court gives leave. (3) Subsection (2) does not apply unless the agreed fact: (a) is stated in an agreement in writing signed by the parties or by lawyers representing the parties and adduced in evidence in the proceeding; or -- 15 of 17 -- 16 (b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.” There is no corresponding or similar provision in the Evidence Act 1977 (Qld), but in any event, it was not put to the Court in any way, during the hearing, that there was any agreement as to the location of the top of bank line along the southern and western boundaries of the gully. [27] There is also the circumstance that the appellants had a duty to disclose the document to the respondent as a document directly relevant to an issue in the proceedings, and this was not done until April 2002, the hearing having commenced on 18 February, 2002. The Uniform Civil Procedure Rules, 1999 came into force on 1 July 1999. Had that obligation been complied with, it may be doubted that there would have been any such “understanding” in relation to survey evidence, as has been mentioned. [28] Whether per incuriam or otherwise, the evidence was tendered without qualification. Even if the tender had been qualified it does not necessarily follow that the Court would have been free to ignore it with respect to any matter in relation to which it was relevant and admissible. [29] The top of bank line is shown in Exhibit 33 in a position such that, if the evidence is accepted, development with respect to units 13, 14, 15, 16, 17, 18, 32 and 33, or associated infrastructure would be inside the gully. It is not suggested that the Court would not refuse an application which had this consequence. The position now with respect to evidence on that subject is such that the Court is quite unable to determine where the top of the bank line runs along the western edge of the gully and consequently is unable to determine the juxtaposition of the gully and the -- 16 of 17 -- 17 development proposed. It is the obligation of the appellant to satisfy the Court that the appeal should be allowed and the application approved. In the present state of the evidence in relation to the western boundary of the gully the appellants are quite unable to do that, except that the Court would be entitled to determine the position in relation to the gully by drawing the inference most adverse to the appellants. That, by itself, provides a strong reason for dismissing the appeal. The protection of the gully from the effects of the proposed development is an issue of considerable importance in the case. [30] Even apart from the issue of development within the gully itself, I am not persuaded that the dense planting on the western side of the gully proposed by the appellant would provide protection comparable to the buffer proposed by the respondent. I have formed a tentative view that the issues of water quality and drainage can probably be satisfied by the appellant, with appropriate conditions, but it is likely that this would prejudice the planting of a suitable barrier to reduce the loss of amenity to residents of Mayfair Street. I think there are significant amenity effects upon those residents in that eventuality, as there are also upon residents in the north- eastern area of the site arising from the removal of vegetation, and to a lesser extent the proximity of the development to residents of Windmill Street. [31] In view of the situation in relation to the survey evidence relevant to the precise location of the gully within the site, I do not think it is necessary or appropriate to form a considered view on these matters, or to turn to a detailed consideration of the environmental issues in the appeal. [32] The appeal is dismissed. -- 17 of 17 --