Feros v Brisbane City Council & Anor [2002] QPEC 20 [2002] QPELR 469

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Feros v Brisbane City Council and Stockwell [2002] QPEC 020 PARTIES: VICTOR G FEROS Appellant and BRISBANE CITY COUNCIL Respondent and MARK STOCKWELL Co-Respondent FILE NO/S: 5289 of 2001 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 24 April, 2002 DELIVERED AT: Brisbane HEARING DATE: 4-6 March, 2002 JUDGE: Judge Quirk ORDER: Appeal Dismissed CATCHWORDS: Integrated Planning Act 1997; ss 2.1.23, 3.5.14 COUNSEL: Mr V. Feros appeared self-represented Mr M. Rackemann for the respondent Mr G. Gibson QC & Mr. R. Litster for the co-respondent SOLICITORS: Brisbane City Legal Practice for the respondent Deacons Lawyers for the co-respondent [1] This appeal, by an adverse submitter, is against the respondent’s approval of an Application for Development approval for an integrated apartment building and townhouse complex at West End. -- 1 of 8 -- 2 [2] The subject land occupies an area of a little over 3,300m 2 and is on the north- western corner of Duncan and Kurilpa Streets. To the north-west of the site is the strip of land in which Riverside Drive runs along the bank of the Brisbane River. [3] Historically this part of the city had a primarily commercial/light industrial character and a good deal of commercial development, warehousing and some light industry can still be found in the area. However history has also shown a trend whereby industrial uses (beginning with the more heavier forms) have moved progressively away from the city centre to more outlying areas. The logic of this (as it relates to land values and accessibility for heavy transport) is easy to see. This trend is also reflected in the respondent Council’s planning strategies found in both the now superseded Town Plan and the current City Plan. [4] The design and layout of the proposal can be seen from the material placed before the court. No purpose would be served by a detailed discussion of these matters as the issues raised against the proposal were concerned with wider planning questions. Although the matters raised in the Notice of Appeal were numerous, as the evidence unfolded it became clear that the issues that would prove determinative in the case were:
Alleged conflict with the City Plan;
The proposal’s consistency with a Draft Local Area Plan and the weight that should be attributed to that instrument. [5] In the City Plan the subject land falls within the Light Industry Area designation. The relevant Level of Assessment Table (Chapter 3 pp. 39-41) indicates that a proposal of this kind would be described as “any other material change of use” and -- 2 of 8 -- 3 is thereby deemed to be a development which is “generally inappropriate” and subject to impact assessment. [6] The City Plan, being an instrument drawn under the Integrated Planning Act, adopts a somewhat different approach to earlier relevant legislation. Section 2.1.23 of the Act makes it clear that the extent to which development or land use may be regulated is limited and sub-s (2) provides: “A local planning instrument may not prohibit development on, or the use of, premises”. [7] Section 3.5.14 (which relates to impact assessable development) provides in sub-s (2): “If the application is for development in a planning scheme area, the assessment manager’s decision must not – (a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or (b) conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision”. No conflict with the “desired environmental outcomes” (found in s.3 of Chapter 2) was demonstrated by the evidence given in the appeal. [8] Arguably, in this matter, we are looking at an area that is in transition in land use terms although it would be fair to say that, at this time, we are in the early days of such a transition. In such a case it is important to have regard to what is said by the Strategic Plan which is essentially a forward looking planning instrument. In the City Structure Plan (Map A) the site has been included in the “Residential Neighbourhoods” element of the city and it is important to note that “Industrial Locations” are found elsewhere. It has to be said that s.4.2 of Chapter 2 indicates that areas designated “Residential Neighbourhoods” may not necessarily be intended for exclusive residential use. Section 4.2.2.5 provides: -- 3 of 8 -- 4 “Residential neighbourhoods are to contain a range of services and facilities that serve residents’ needs. These include … smaller industrial areas”. [9] The important matter to note is however that residential use in these areas is certainly not discouraged. Perhaps even more relevant to the situation which faces us is s.4.2.2.7 which provides: “Some parts of residential neighbourhoods are undergoing major change, particularly in inner city areas where land use is changing from industry to other uses. These locations provide opportunities for new residential uses that can often be combined and integrated with commercial development”. [10] Dr Taylor, an experienced Town Planner who was called by the appellant, sought to lay greater emphasis on the “generally inappropriate” description of the proposed development in the “Light Industry Area” designation in the City Plan than was warranted having regard to the more specific provisions of the Strategic Plan dealing with this area and a proposal of this kind. [11] It was sought to make the point that to date no significant residential development is to be found in this part of West End. There are, however, other planned residential developments in the area which are not yet approved or constructed. A moment’s sensible reflection indicates that, if the Strategic Plan suggests that this an area in which transition away from industrial usage to residential uses will take place, one development will necessarily have to lead that transition. Provided it is not inconsistent with the local authority’s planning for the area there is nothing in this that should weigh against its appropriateness. [12] In my view of the matter the Draft Local Area Plan for this part of the city is of considerable importance. It is an instrument that is specifically contemplated by the City Plan and the public notification stage has now been completed. In the Draft -- 4 of 8 -- 5 Local Area Plan the land falls within the Riverside South Precinct and more particularly within Sub-Precinct (a) (the area extending from Davies Park to Kurilpa Street). [13] The expressed intent for that area is: “In the short to medium term, this sub-precinct may be suitable for medium intensity mixed commercial and residential development. However, any such change of use must be consistent with the Council approved structure planned detailing acceptable building height setbacks and landscaping requirements”. While it is true that an “approved structure plan” may not yet be in place, I am satisfied on the evidence given that matters relating to acceptable building height, setbacks and landscaping requirements are not such as to warrant this proposal’s rejection. [14] The intent of the Draft Local Area Plan for this Sub-Precinct is supported by a Supplementary Table of Development which provides the following “generally appropriate” impact assessable development: “• Office, where a minimum of 30% of gross floor area is used for residential purposes; • Multi Unit Dwelling; • Industrial Activities not identified in Schedule 1 or Schedule 2 Industrial Areas”. (The lastmentioned Schedules relate to medium to heavier types of industrial activities). [15] In the appellant’s case, a determined attack was made on the Draft Local Area Plan. The planning philosophy supporting it was strongly criticized by Dr Taylor and it was suggested that the proposal ought not be approved until the Local Area Plan was formally part of the City Plan. While it is true that the Local Area Plan will be -- 5 of 8 -- 6 of more binding status at that stage, it is quite another thing to say that, in making an assessment of this proposal (as I must) the Draft Local Area Plan should be accorded little if any weight. [16] The Local Area Plan has obviously been the subject of substantial attention by the Planning Authority. While this attention may not be of a kind that has pleased the appellant, it is not to the point to say (as did Dr Taylor) that a better planning approach was open to the Council (and this Court). It is for the elected planning authority to formulate its planning strategies and it is not for this Court to embark upon a comparative assessment of those strategies and others which, it is claimed, might have more appeal. [17] It was even suggested that the Draft Local Area Plan was “diametrically opposed” to the provisions of the City Plan. That statement however ignores important and relevant provisions of the Strategic Plan to which I have already referred. [18] Some suggestion was made that the site was inconvenient in terms of public transport, access to shopping facilities and the like. In this context one must be realistic. The proposal is intended to (and will) provide attractive high quality riverfront residential opportunity. It is a little naive, in my view, to suppose that those interested in residing there would be confused, in any unreasonable way, regarding the matters raised against the proposal and would not properly and carefully consider them. [19] Mr Kamst, an experienced acoustic engineer believed it unlikely that noise from non-residential activities in the area would make the site inappropriate for the proposed use. Nor am I satisfied, on his evidence, that the proposal would result in unreasonable constraints being placed on existing non-residential uses. -- 6 of 8 -- 7 [20] A final matter must be discussed. It was suggested in the appellant’s case (after evidence from the respondent and co-respondent was completed) that a condition whereby the Council required a road connection from Kurilpa Street through to Riverside Drive be constructed should be deleted. [21] The provision of such a link is something contemplated by the Draft Local Area Plan. In the Statement of Intent for the relevant precinct the following appears: “The existing road pattern limits pedestrian accessibility through this precinct to Riverside Drive. New development may be required to provide additional road links and public thoroughfares between Montague Road and Riverside Parklands”. [22] Again this is a planning strategy which the elected Planning Authority has sought to adopt. Such a condition is not resisted by the co-respondent and there is nothing in the evidence which would support my ruling that the condition be deleted. [23] It was also suggested that a further Condition of Approval should be imposed requiring: “A contribution of $200,000 – as offered by the co-respondent and formally accepted by the respondent, be made for affordable housing, such moneys to be allocated to a project or projects located within 400 metres of the intersection of Boundary and Vulture Streets, West End or in the suburb of South Brisbane”. [24] While there may well be some social merit in such a suggestion, it was not something subject to appropriate examination in the evidence given in the appeal. Whether the contribution is made by the co-respondent and accepted by the respondent is a matter between those parties. I am not prepared to make any ruling on the point. -- 7 of 8 -- 8 [25] On the whole of the evidence I am satisfied that the application is one that should be approved. The required onus has accordingly been discharged and the appeal must be dismissed. -- 8 of 8 --