Allaries & Ors v Brisbane City Council & Anor [2002] QPEC 46 [2003]1 QPELR 104

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Allaries & Ors v Brisbane City Council & Anor [2002] QPEC 046 PARTIES: ELIZABETH ALLARIES, DENVER BEANLAND, AND RAYMOND POON (appellants) v BRISBANE CITY COUNCIL (respondent) AND TAIWAN INVESTMENT MANAGEMENT PTY LTD (co-respondent) FILE NO/S: 814/02 DIVISION: Planning and Environment Court PROCEEDING: Appeal DELIVERED ON: 8 August 2002 DELIVERED AT: Brisbane HEARING DATE: 31 July, 1 August 2002 JUDGE: K S Dodds DCJ ORDER: Appeal dismissed CATCHWORDS: ENVIRONMENT AND PLANNING – COUNCIL CONSENT AND APPROVAL – APPLICATIONS – submitters’ appeal against respondent’s approvals of co- respondent’s application for a development permit for material change of use for multi-unit dwelling, demolition and filling, and for preliminary approval of operational work on seven suburban lots. Issues: amenity – privacy, increased traffic, increased sewage, increase in flood levels due to filling. Integrated Planning Act 1997, sections 3-5-30, 4.1.50(2) COUNSEL: T Trotter for respondent A Skoien for co-respondent -- 1 of 8 -- 2 SOLICITORS: Brisbane City Legal Practice for respondent Clapins Lawyers for co-respondent R Poon and D Beanland in person [1] This is an appeal by submitters against the respondent’s approval (with conditions) of an application by the co-respondent for a development permit for a material change of use for multi-unit dwelling and for preliminary approval of operational work. [2] The subject land comprised a total of seven suburban lots which may be referred to as 270, 272, and 276-284 Indooroopilly Road. In the vicinity Indooroopilly Road may be described as running north-south. Lambert Road from the west joins Indooroopilly Road just to the north of the subject land. There is a roundabout at the junction. Each lot used to contain a detached house. If and when development is completed the co-respondent intends there to be 14 houses on the 7,764 m2 combined area of the subject land. [3] The history should be briefly explained. [4] In October 2000, the co-respondent applied to the respondent for a development permit for a material change of use for multi-unit dwelling, demolition and filling, and for preliminary approval of operational work with respect to lots 270, 276, 278, 280, 282, and 284. For convenience I will refer to this as Stage 1. The application was approved with conditions. There was an appeal to the Planning and Environment Court by submitters who included the present appellants. On 7 November, 2001 that appeal was dismissed by consent and the application approved subject to slightly amended conditions. [5] The co-respondent having acquired lot 272 made the application the subject of this appeal in March 2001. This application related to the entire area, namely the land the subject of the earlier application and lot 272. It was approved with similar conditions to that applied to the earlier approval. For convenience I will refer to this as Stage 2. [6] A requirement of the respondent in approving both Stage 1 and Stage 2 was that the land the subject of the approval be filled to 7.10 metres AHD the 100-year ARI level Brisbane River (A Q100 flood event Brisbane River). [7] The location and make-up of the subject land can be described by commencing at the roundabout of Lambert Road and proceeding south on Indooroopilly Road. Lots on the eastern side of Indooroopilly Road included 256, 258, 270, 272, 276, 278, 280, 282, and 284. Access to lot 270 from Indooroopilly Road was a narrow access way (referred to as an easement) between lots 258 and 272, lot 270 being immediately to the east of and adjacent to lot 272. That access way also provided access to a lot 260 which was located immediately to the east of and adjacent to lots 256 and 258, to a lot 266 which was located immediately to the east of and adjacent to lot 260 and to a lot 268 which was located immediately to the east of and adjacent to lot 270. Lots 278 and 282 were each located immediately to the east of and adjacent to lots 276 and 280 and lots 280 and 284 respectively. Access to lot -- 2 of 8 -- 3 278 from Indooroopilly Road was via a narrow strip of land between lots 276 and 280. Access to lot 282 from Indooroopilly Road was via a narrow strip of land between lots 280 and 284. There was no lot 274. [8] The issues in the appeal were: privacy, overhead power and other service lines, sewage infrastructure, traffic, stormwater management, and flooding. Privacy [9] The issue articulated in the appeal was a concern to the occupier of lot 258 a Dr Nave. He gave evidence in the appellant’s case but was not an appellant. He said that was because he was overseas when submissions were to be made about the second stage application. His particular concern was the privacy of his swimming pool which was located on his land towards its north-west corner. The construction of two-storey houses on the land which had been lot 272 filled to the same level as the Stage 1 land would result in those houses being that much higher relative to his land. He acknowledged that condition 8 of the approval required fixed external privacy screens or fixed obscure glass to all side windows which had a sill height less than 1.5 metres above floor level. He thought 1.5 metres was insufficient and presumably was concerned to be assured windows which may overlook his pool included side windows referred to in the condition. [10] Whilst it may have been the case that absent the present development, demolition of the old and construction of a new detached dwelling house on what was lot 272 may not have required impact assessment, in the present circumstances impact assessment was required. Given the height differential between his property and a house to be constructed on a filled lot 272, I do not consider Dr Nave’s concern an unreasonable one in the circumstances. Any windows in dwellings constructed on the land which was lot 272 which would potentially allow a view of Dr Nave’s swimming pool area should be the subject of a screening condition similar to condition 8 without the 1.5 metre sill above floor level limitation. Such a condition in my opinion is both relevant to and reasonably required as a consequence of the development in terms of section 3-5-30 of the Integrated Planning Act 1997 (IPA). Overhead power and other service lines [11] A condition of both approvals required underground reticulation of electricity within the subject development. The issue apparently was with overhead lines external to the subject development and in particular in the access way between lots 258 and 272. The notice of appeal said these would be close to houses presumably those to be constructed on what was lot 272. There was no evidence from the appellants to advance this ground of appeal. To the contrary, evidence in the co- respondent’s case, exhibit 2, was to the effect that the power lines existing on the access way would be no closer to new detached houses than other power lines and services to existing residents in Brisbane. Sewage infrastructure [12] In the notice of appeal it was asserted the system was overloaded and failing. There is a pumping station adjacent to Sandy Creek near the junction of Lambert Road and Indooroopilly Road. In the notice of appeal it was asserted that pollution of Sandy Creek was regularly occurring and offensive odour was emanating from the -- 3 of 8 -- 4 pumping station. In submissions by one of the appellants, Mr Poon, he said this continued to occur regularly. [13] From the co-respondent’s side evidence touching on this was put before the Court in a civil engineering report of Saunders & Partners authored by a Mr Potiphar, a civil engineer, exhibit 3. To the extent the report deals with this it says enquiries with the respondent’s engineering staff indicate there is sufficient capacity and the pumping station is of adequate design for current and additional demand from the subject development. It also says those staff had informed that an overflow problem as a result of power failure had existed. To alleviate this a standby generator had now been installed. [14] The evidence put before me does not allow for any other conclusion than the sewage system has adequate capacity to handle any extra load from the subject development. However I accept what Mr Poon says about offensive odour emanating from the area of the pumping station from time to time. Perhaps there is a gap between a sewage engineer’s opinion about the adequacy of the carrying capacity of a system for engineering purposes and the olfactory observations of residents near the subject pumping station. Without a doubt any escape of offensive odour will continue to generate complaints from nearby residents including no doubt new residents in the subject development. Traffic [15] Mr Mogg, a senior engineer of transport and traffic with the respondent gave evidence about this, exhibit 6. Where there were seven houses there will be 14 post-development. The increase in traffic generated will be insignificant in terms of the road system in the vicinity. [16] There was no evidence about traffic concerns from the appellants’ side of things other than Dr Nave’s observations. [17] The notice of appeal referred to traffic using Indooroopilly Road and Lambert Street having increased considerably. The roundabout at the junction was unsafe to residents’ observations with frequent accidents, and near-misses. Residents considered a reduction in speed limit to 50 kilometres an hour should be introduced, footpaths should be widened, cycle lanes should be provided, pedestrian crossings should be provided on Indooroopilly Road and Lambert Street at the intersection, traffic-calming devices should be introduced, and existing problems should be rectified before increasing the number of dwellings in the vicinity. [18] There was criticism of the design of the roundabout from the appellants because it did not sufficiently slow traffic along Indooroopilly Road. Dr Nave spoke of traffic being able to and coming through the roundabout at excessive speed and of frequent accidents and near-misses. [19] Mr Mogg conceded that some tightening up of the roundabout, particularly at its exit, south along Indooroopilly Road could be beneficial to slowing traffic on Indooroopilly Road. According to Mr Mogg, transport records do not record many accidents at the intersection. I do not regard that is conclusive for many relatively minor collisions with property damage would in all likelihood not involve police and not find their way into transport records. -- 4 of 8 -- 5 [20] The sorts of concerns referred to in the notice of appeal in Dr Nave’s evidence and articulated by Mr Poon in speaking from the Bar table can be understood. It seemed to be accepted that people attending the University of Queensland use Indooroopilly Road and that it is regarded as a major traffic carrying road. Traffic measurements Mr Mogg had done which he used in his evidence appear to have been taken during university holidays and may be under-representative. I had an inspection in the company of the parties. Indooroopilly Road in this vicinity is not a particularly wide carriageway. There are residences on both sides of it in the vicinity of the development and to the north and south of it. There are a number of bends. Visibility ahead is not particularly good. [21] An advantage accruing from the development will be that multi accesses to Indooroopilly Road over the frontage of the development which had existed will, after development, be reduced to one about halfway along the frontage of the subject land with Indooroopilly Road. The access way between lots 258 and 272 will of course remain for access to lots 260, 266, and 268. [22] On the evidence before me, additional traffic generated by the development or the design of the development itself does not require refusal of the application or any conditioning over and above that already imposed by the respondent in its approvals. It is a matter for the responsible authority to strike the right balance between the safety of residents in the area, users of Indooroopilly Road and Lambert Street, vehicular, cycle, and pedestrian, and a perceived need to have vehicular traffic moving unimpeded at a particular speed on these streets. Stormwater and flooding [23] Stormwater quality was not an issue in the appeal. The issues were: local catchment flooding and flooding from the Sandy Creek catchment. [24] The area of the subject land is low-lying. Sandy Creek runs in a westerly direction from the east towards the eastern side of the subject land where it appears to curve slightly to the north and then proceed westerly again on the northern side of lot 256. It meets Indooroopilly Road at about the roundabout at its junction with Lambert Street. At this point pipe culverts are provided under Indooroopilly Road which, it seems to be accepted, are the cause of some backing up during major flows due to their limited capacity. It then proceeds westerly to the Brisbane River. [25] It was not in dispute that pre-development the subject land could be an overflow path for water making its way to Sandy Creek in local catchment flooding or in major flooding. As already mentioned, the approval of the applications required the subject land be filled to a level above the Q100 flood event Brisbane River. Such a flood in the Brisbane River is a very considerably more significant flood event than a Q100 flood event local catchment or Sandy Creek catchment. [26] The understandable concern of the appellants as set out in the notice of appeal, in the evidence of Dr Nave, and articulated by Mr Poon from the Bar table related to the worsening of flood events on other property in the vicinity because of the filling of the subject land. [27] Considerable attention was paid to this issue in the evidence put before the Court by both the co-respondent and the respondent and to some extent by the appellants. In -- 5 of 8 -- 6 the co-respondent’s case, evidence was given by Mr Potiphar (exhibit 3) about local catchment flooding, and by Mr Roads, a civil engineer (exhibit 4) about Sandy Creek catchment flooding. In the respondent’s case, Mr Collins, a civil engineer, gave evidence (exhibit 7) generally about flooding including Brisbane River local catchment and Sandy Creek catchment flooding. In the appellants’ case, Mr Boys, a civil engineer gave evidence (exhibit 9). All of these witnesses appeared to have expertise and experience in hydrology, hydraulics and flooding. [28] Mr Boys was somewhat limited in that he had been consulted only shortly before the hearing and had not undertaken any detailed investigations of his own. He had read the reports of Mr Potiphar, Mr Roads, and Mr Collins but had not had an opportunity to discuss with them their conclusions and investigations upon which those conclusions were based. He raised questions about some conclusions they had reached and about the investigations upon which those conclusions rested. [29] So far as Brisbane River flooding is concerned, I find that the filling of the subject land would have no appreciable effect on water levels on adjacent land. That is because in a major Brisbane River flood, the area of the subject land is quite insignificant storage. [30] So far as local catchment flooding is concerned, I find that the filling of the subject land will not cause any increased flooding to adjacent land in a Q100 flood event local catchment. I accept Mr Potiphar’s evidence that this sort of flooding will be contained by the road. [31] Sandy Creek catchment flooding occurs when water travelling west in Sandy Creek to the Brisbane River exceeds the capacity of the creek’s system to discharge it into the River. As already mentioned, the capacity of the culverts under Indooroopilly Road contribute to flooding. Water backs up and moves north and south along Indooroopilly Road and in the event of overtopping the road constraints, into adjoining property. [32] I accept the evidence of Mr Roads and Mr Collins. Mr Roads modelled a Q100 flood Sandy Creek catchment. Mr Collins formed opinions similar to Mr Roads. He considered Mr Roads’s investigations and results and generally supported his conclusions. He queried whether Mr Roads’s predicted flood levels may be too high since his modelling in effect had assumed water levels in Sandy Creek in a Q100 flood event Sandy Creek catchment from the respondent’s 1997 Sandy Creek flood study. That study had all the flow in such an event down the main channel of the creek whereas Mr Roads’s modelling applied 4m3/sec across the subject land and the effect of blocking that forcing it elsewhere. [33] The evidence of Mr Roads and Mr Collins was that before the subject land was filled, except in very severe flood events Sandy Creek catchment (greater than Q50), Sandy Creek would not break out down Indooroopilly Road and across the subject land. A small overflow may occur in a Q100 flood event in that catchment (between 2 and 5 m3/sec Mr Collins, 4m2/sec Mr Roads, but with low velocity. The effect of blocking the overflow through the site and forcing it elsewhere would have only a minimal effect in terms of increasing water levels probably resulting in an increase of flood level immediately downstream of Indooroopilly Road of the order of one or two centimetres diminishing to zero at 75m downstream. There would be no increase upstream of Indooroopilly Road. For the peak period, likely -- 6 of 8 -- 7 to be in the order of fifteen minutes, it would increase water levels at lot 258 by about 40 mm, at lot 256 by about 20 mm, and at lot 260 by about 10 mm. [34] Prior to filling and development of the subject land, lot 260 is the only one predicted to have overflow (lower floor) flooding in such an event in the order of 50 mm. The level of lot 258 suggests that in a Q100 flood event Sandy Creek catchment flood water level, if unimpeded, would intrude on the lot and possibly the dwelling. The lot has a low brick or block wall at its frontage with Indooroopilly Road and returning for a distance along the sides of the lot at right angles which, while not providing an entire barrier, would inhibit the movement of flood water into that lot. An increase in the level of flood water of 40 mm at this lot, if unimpeded, would intrude on the habitable floor level of the dwelling. However, I accept the evidence of Mr Collins and Mr Roads that the wall I have referred to will sufficiently inhibit floodwater over the relatively short peak period of the design flood event that flooding over habitable floor level should not occur. [35] The filling which has already occurred as a result of the Stage 1 approval has in any event had the effect of blocking 70 percent to 80 percent of the hypothetical flow path of a Q100 flood Sandy Creek catchment across the subject land. All the expert witnesses considered that if that fill was to remain it was preferable to fill the area of lot 272 to the same level. [36] The possibility exists that in a Q100 flood event Sandy Creek catchment, with the subject land filled, there may be some leakage of water from Indooroopilly Road down the access way between lots 250 and 272. To prevent this in the extreme event being considered, Mr Roads suggested raising the level of the access way about 400 mm possibly by means of a graduated hump in the access way at some convenient point along its length. [37] City Plan 2000 contains a filling and excavation code which applies, inter alia, in assessing a material change of use and/or operational work for filling of the extent involved on the subject land (exhibit 13 is an extract). Its purpose is, inter alia, to ensure that filling does not adversely impact on flooding of - - adjoining land. Performance criteria of the code includes that filling must not cause any increase in flooding problems. An acceptable solution is there be no filling within the flood regulation lines, or if there are no flood regulation lines within the Q100 flood event. [38] A Sandy Creek flood study by the respondent was concluded in February 1997 and a flood regulation line was applied to land on each side of Sandy Creek. The subject land, except for a small portion of it at its eastern extremity which has not been filled and will not be developed, is outside the flood regulation line. [39] On the evidence before me, I find that the probabilities are that the filling and development of the subject land will have a very minimal, if any, effect on flood levels at adjoining properties in a Q100 flood event Sandy Creek catchment. The flood event which in reality poses a problem to those properties is a severe flood event in the Brisbane River causing the river level to back up. [40] This being a submitter appeal, the co-respondent must establish that the appeal should be dismissed: section 4.1.50(2) IPA. -- 7 of 8 -- 8 [41] I find it has done so. The issues raised have been addressed by appropriate investigation and evidence. Considerable investigation has been undertaken into flooding and the effect thereof on neighbouring properties in an extreme flood event in the local catchment and the Sandy Creek catchment due to filling the subject land. Lawful filling to the required level has already occurred on the subject land except for lot 272. The evidence is that it is preferable that lot 272 be filled to the same level. The minor increases in flood levels in the area of some neighbouring properties in the design flood event do not require the development be prevented from proceeding including two new dwellings on what was lot 272. [42] Some additional conditions however should be attached to the approval to require that:
windows, balconies, and/or verandahs in any house to be constructed abutting the access way to and from Indooroopilly Road located on the northern side of the subject land so located that they overlook that part of lot 258 between the dwelling thereon and Indooroopilly Road have fixed external privacy screens or fixed opaque glass up to 1.8 meters above floor level.
the level of the access way to and from Indooroopilly Road located on the northern side of the subject land is to be raised about 400 mm at a convenient point and for a safe distance to provide a barrier to water moving from Indooroopilly Road into that access way and/or into lot 258. [43] The only other matter arises from some alterations to plans for those of the proposed dwellings on the subject land other than lot 272 and which are adjacent to lot 272. The alterations were made at the time of the consent order in the Planning and Environment Court on 7 November, 2001 and related to parts of those proposed dwellings which encroached beyond the boundaries of lot 272. There appears to be no point to them if the area of lot 272 becomes part of the subject land to be developed. [44] The appeal is dismissed. The application with construction of dwellings 8, 9, 11, and 12 as indicated on plan drawing number A.HD.02/10(B) at page 88 of Exhibit 1 will be approved subject to the conditions attached by the respondent to its decision notice with respect to the application and to additional conditions as indicated above. -- 8 of 8 --