Conroy & Ors v Brisbane City Council & Anor [1993] QPEC 20

.,f';J;•:4~~ 'rfJ! State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Cr0'\\'11. Copies thereof must not be made or sold '"ithout the ·written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE O'SULLIVAN P & E No 250 of 1992 MICHAEL CONROY, SHARON CONROY, JEAN FRANCIS ADELE MACGILLIVRAY, MICHAEL CHRISTOPHER SELLECK, CATHERINE AGNES SELLECK, JOSEPH CARMODY, DAVID TENNANT, ROSEMARY TENNENT, BRUCE GORDON FRANK MITCHELL, SUSAN LEE MITCHELL, PETER GORDON PARSONS, MAXINE BERENICE PARSONS, JEREMY WARD, MARGARET LOUISE WARD and BRISBANE CITY COUNCIL and KENLYNN PTY LTD BRISBANE .. DATE 08/ 04/93 JUDGMENT 1 Appellants Respondent Respondent by Election 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 20 -- 080493 T 1/JB M/T 3446/93 (O'Sullivan DCJ) I HER HONOUR: I publish my reasons. My formal order then Mr . . Trotter will be that the appeal is allowed. 10 ( 20 ( 30 2 JUDGMENT -- 2 of 20 -- ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 250 of 1992 Before O'Sullivan DCJ [Re: ] Conroy & Others v Brisbane City Council & Anor. BETWEEN: CONROY & OTHERS. -and- BRISBANE CITY COUNCIL & ANOR. REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Judgrnent delivered: 7th April 1993 Catchwords: Counsel: Solicitors: Mr T. Trotter (Apellant) Mr M. Rackernann (Respondent) Mr N. Sarnios (Respondent by Election) MacGillivrays Acting Director of Legal Services Gray & Maloney (Appellant) (Respondent) (Respondent by Election) Hearing Date(s): 1,2,3,4th March 1993 and 15th March 1993 -- 3 of 20 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 250 of 1992 BETWEEN: CONROY & ORS. Appellants BRISBANE CITY COUNCIL Respondent REASONS FOR JUDGMENT O'SULLIVAN D.C.J. Delivered the day of 1993 This is an appeal by Objectors against the Respondent's proposal to approve an application for consent for an apartment building at 302 Swann Road, St. Lucia, Brisbane. The Applicant proposes to construct an apartment building comprising 8 two-bedroom units ("the proposal") on 1323 square metres of land described as Lots 11 7 and 118 on RP 23296 Parish of Indooroopilly ("the land"). The land is included in the Residential "B" Zone (with an "R.D.A. 4" designation) in the Respondent's Town Plan. The proposal is for 2 buildings with a covered walkway between them. Four units and car parking are to be housed in the front building and 4 units are to be housed in the rear building. The land has a considerable slope from Swann Road to its northern corner. The frontage to Swann Road is 20.165 metres. The depth of the land is 66 metres. There were 30 Objectors to the proposal, 14 of whom have become Appellants. -- 4 of 20 -- The issues in the 2 Appeal included over-development, overshadowing, overlooking, invasion of privacy, interference with breezes and views, non-compliance with site cover, side boundary clearance and height requirements, inadequate car parking, interference with existing vegetation, traffic safety, inadequate landscaping, noise and amenity. The general contention of the Respondent by Election was that over-compliance with landscaping (56% compared to 30%), over- compliance with rear boundary setback (13.2 metres compared to 6 metres), landscaped car parking decks and the low profile design of the buildings compensate for site cover and side boundary setback relaxations, especially in view of the design constraints arising from the steepness of the land. The general contention of the Appellants was that the proposal is not suitable for the land because of the shape of the land (it is a long thin block) and thus inappropriate relaxations become necessary. The R4 Guidelines: It was not in issue that the proposal has been designed in an attempt to comply with the Respondent's "Draft Residential B R4 Design Guidelines" ( "the Guidelines"). On the front cover of these Guidelines there is a statement that: "The following design guidelines are being distributed for public comment. It would be appreciated if you could forward any comments and suggestions by June 29, 1990 to: Town Planning Branch, Brisbane City Council". It was unclear from the evidence to whom the Guidelines were sent, and whether any public comment was received by the Respondent. A letter from the Council to MacGillivrays & Co dated 31 July 1991 states that the Guidelines were published in April 1990 and distributed widely to the design and development sector and general community. That letter also -- 5 of 20 -- 3 states "It is intended that the Draft Guidelines be presented to the Council later this year for adoption as a Planning Policy". The Guidelines have not been put on public exhibition. The significance of this has been consistently recognized in a long line of authorities in this Court and in the Local Government Court. The Guidelines have not been adopted as Planning Policy by the Respondent. Mr. Kay, the Town Planner who was formerly in the employ of the Respondent and who is now a Town Planning Consultant engaged by the Respondent, said: "To my knowledge they've still languished in their draft form". He agreed that they are "still on trial". It was clear from the evidence that the Respondent requests applicants to have regard to the Guidelines. This is specifically stated in the letter of 31 July 1991. Mr. Tait, the Architect engaged by the Respondent by Election, put it this way: "The Council will neither accept nor approve an application for an apartment building that is not so prepared ( to comply with the Guidelines)". Mr. Kay opined that this practice may have been the result of a direction from the Respondent's Assessment Committee. The various Town Planners who were called to give evidence expressed different views on the Guidelines. Mr. Kay saw them as "a planning tool" in the assessment of the proposal. He said: "The draft design guidelines are read in conjunction with the Town Plan and other planning policies and provide the basis for selective relaxation of the Town Plan requirements". Mr Vasdekis, who was engaged by the Respondent by Election, said: 11 In order to achieve the aims of the guidelines the intention is that relaxation would be considered to the provisions of the Town Plan in relation to prescribed side boundaries and site cover". Mr Piggott, who was engaged by the Appellants, said "Brisbane City Council has prepared draft design standards for R4 -- 6 of 20 -- 4 developments to compare building design. These guidelines are draft only and do not have the same weight as the development standards set out in the Town Plan. Nevertheless, the draft design guidelines are used by Council officers in assessing R4 development applications". In Feros v Brisbane City Council and Kallinosis (Unreported - Quirk D.C.J. 14.12.92) there was evidence that the Guidelines are generally well-received and widely resorted to within the development industry. The evidence in this Appeal did not suggest that the Guidelines have generally been well- received: indeed, a number of the Town Planners who gave evidence expressed reservations about the Objectives, Criteria and Relaxations in the Guidelines. It may be that parts of the Guidelines (for example, the Aims} are unobjectionable but the evidence does not allow me, nor is it appropriate for me, to undertake a paragraph-by-paragraph examination of the Guidelines. On the evidence presented to me, I am unable to find that the Guidelines as a whole reflect sound town planning principles. Mr MacGillivray, one of the Appellants, gave evidence that he was unaware of the existence of the Guidelines until June-July 1991. He gave evidence that had he been aware of the Guidelines at the time, he would not have purchased his property in December 1990. I am unable to accept the proposition that the basis upon which the Guidelines should be approached is that they do no more than indicate how the discretion to offer relevant relaxations might be exercised by employing proper town planning principles. I consider that it is not possible to reconcile the provisions of the Town Plan and the Guidelines, and indeed in important respects relevant to this appeal they are directly inconsistent. -- 7 of 20 -- 5 In view of the lack of public input, the lack of formal adoption by the Respondent, and my finding that they do not reflect sound town planning principles, I am unable to give the Guidelines any weight. I have therefore not reached any concluded view as to whether the proposal complies with the Guidelines, with or without relaxations. I consider that the appropriate question is whether the proposal complies with the Town Plan and the formal planning documents of the Respondent. I reach this view reluctantly because I am mindful of the expense and inconvenience to which the Respondent by Election may have been put in its attempts to comply with the Guidelines. However, I consider that there is no justific- ation at law for the Respondent to insist on compliance with the Guidelines. Moreover, I consider it is unhelpful for the Respondent to do so because developers and residents alike are unable, by reference to the Town Plan and formal planning documents of the Respondent, to ascertain with any certainty or particularity whether a proposed development will be approved. Land Use: A single detached dwelling is located on the land and is occupied by the current owner. Immediately to the west is a 12 unit apartment building called "Amersham Mews". This was approved prior to the Guidelines. Immediately to the east are the residences of four of the Appellants, Mr and Mrs Conroy (fronting Swann Road) and Mr and Mrs MacGillivray behind them to the north. Further east along Swann Road, further west along Swann Road and on the southern side of Swann Road are single detached dwellings. On the northern side of the land the predominant use is apartment buildings approximately 60 apartment -- 8 of 20 -- 6 buildings ( and 15 detached houses) are located in the block bounded by Carmody Road, Swann Road and Bishop Street. The existing apartment buildings in the area generally are shown in Figure 2 of the report of Mr Piggott. In the immediate vicinity, behind the land in Bishop Street, moving west, there are apartment buildings comprising 4, 10, 27 and 9 units respectively. Mr Vasdekis considered, and I accept, that the character of the area on the northern side of Swann Road is changing from single detached housing to accommodate apartment buildings. Zoning: In the vicinity of the land the subject of this appeal, land to the north of Swann Road is in the Residential "B" Zone. Land to the south of Swann Road is in the Residential "A" Zone. There is therefore a sharp contrast in zoning between the northern and southern sides of Swann Road. The land is in the Residential "B" Zone. Zone is as follows: The intent of this "Land included in the "Residential B" Zone is intended to provide for a variety of residential uses ranging from a relatively low intensity to a quite high intensity. This zone includes the only land in the residential zones where apartment buildings are allowed. The "Residential B" Zone is divided into a number of Residential Development Areas from RDA R2 to RDA R7. Each RDA determines the intensity of development allowed in that part of the "Residential B" Zone. To ensure that an adequate level of amenity is achieved, permissible building type, site cover and site area is prescribed for each RDA". Compliance with development standards: The reasonable expectations of residents in the Residential "B" Zone must include a consideration of the Statement of -- 9 of 20 -- 7 Intent for that Zone, and thus "a variety of residential uses ranging from a relatively low intensity to a quite high intensity". There must therefore be reasonable expectations that an apartment building may be developed on the land. This was conceded by the Appellants. However, Mr Piggott contended that there is also a reasonable expectation that should such development occur, it would be consistent with the requirements of the Town Plan which are aimed at protecting the area's residential amenity but not permitting over~development. Mr Kay contended that a "six-pack" would satisfy the development standards of the Town Plan, but this would have a far greater impact on the adjacent amenity than the proposed development and hence compliance with development standards does not of itself ensure protection of amenity. He considered that a more appropriate approach is to consider each development on its merits ( particularly with respect to design) and on-site considerations. As I indicated in Oliver and Brisbane Citv Council and Forrest (1991) Q.P.L.R. 210, rigid application of the development standards of the Town Plan is not appropriate. Rather, it is a matter of looking at the nature and extent of non-compliance and the resultant impact on amenity. This means that it is not necessary to accept either a "six- pack" (which may comply with the Town Plan) or a proposal which may comply with the Guidelines, but rather to assess whether the proposal is justified on its merits. Trees: The evidence of Mr Flynn, Managing Director of the Respondent by Election and Mr Vasdekis is that the existing significant trees will be retained. However, Mr Tom, a Consulting -- 10 of 20 -- 8 Arborist, gave evidence that some of the significant trees on the land (he nominated the Poincianas in particular) would die as a result of root disturbance due to raised soil levels and earthworks. He was also concerned about the large Jacaranda on the MacGillivrays' land. He suggested that tree surgery, especially careful advance root pruning, would be essential. Miss Plant, an Arboriculturist with the Respondent, considered that the significant trees can be retained. She suggested various measures to minimise the impact of construction of the proposal on the significant vegetation. I consider that any potential problems can be sufficiently solved by that imposition of a condition implementing the proposals of Mr Tom and Miss Plant and a condition that a suitably qualified person be engaged to advise prior to and during construction. Overlooking Mr. Tait contended that overlooking is not significant taking into account the following factors: Overlooking from the upper level units to the common area between the two eastern dwellings is no worse than from the present detached house and will be no doubt improved by the provision of the required landscaping; the lower level units have floor levels below all neighbouring living area floor levels; the preservation of the existing significant trees on site offers better than normal privacy, especially for the MacGilli vrays' residence; the buildings are designed to have no significant windows from living areas facing the side boundaries. I find that overlooking will not be of sufficient magnitude of itself as to warrant refusal of the application. -- 11 of 20 -- 9 Shadowing: This was an issue raised in respect of the Conroys' residence. Mr Piggott conceded that the proposed development does not exceed the requirements of the Respondent's Policy 24.01. I have considered the evidence concerning shadowing and perused the Shadow diagrams tendered in evidence. I do not consider that the shadowing from the proposed development likely to be experienced by the Conroys is of such a magnitude of itself as to warrant refusal of the Application. Amenity-Interference with breezes and views and noise: I accept that the proposed development will have some impact on the breezes and views of the Conroys and the MacGillivrays, and that the proposed development will lead to some noise being heard at those residences. However, I do not consider that these adverse impacts are of themselves of such magnitude as to warrant refusal of the application. Height of the buildings: There was considerable evidence given by Architects and Surveyors as to the height of the buildings, and in particular whether they exceeded 9. 5 metres, as required by the Town Plan. I am satisfied that the Plans now show a proposed building which does not exceed 9. 5 metres. In any event, I consider that 9. 5 metres maximum height could become a condition of approval. I am not persuaded by the evidence that any relaxation would be warranted pursuant to Planning Policy 7.07, or by the application of general town planning principles. -- 12 of 20 -- 1 0 Car Parking: Section 18 of the Town Plan provides that for the proposal there be car parking spaces on-site at the rate of 2 spaces for each of the 8 units and that of the total number of car parking spaces provided, at least 25% of the spaces are to be made available for visitor parking. The Respondent included as a condition of approval that the proposed development have 8 owner car parks and 8 visitor car parks. Most of the witnesses seemed to consider that this number may be excessive. Mr Mogg, who was engaged by the Respondent, considered that the Respondent would be likely to be prepared to change the condition of approval from 8 to 6 visitor bays. Policy 7.6.2 of the Respondent requires 14 bays - 8 owner bays and 6 visitor bays. The Respondent by Election contended that the proposal for 14 bays is adequate. I find that the evidence supports the Respondent's proposed condition of 16 parks. There was a possibility raised of 2 bays being in tandem for each of 2 units: I find that this may present some practical problems but these are not of sufficient magnitude as to warrant refusal of the Application. Traffic: The Appellants raised a number of matters related to traffic. The principal matter was the lack of sight line from the land towards the west. Mr Lawson, a Surveyor engaged by the Respondent by Election, calculated a sightline of 114 metres. Mr Brameld, who was engaged by the Respondent by Election, considered it to be in excess of 100 metres, which is well in excess of the minimum standards of the Respondent. Mr -- 13 of 20 -- 1 1 Williamson, the current occupier of the house on the land gave evidence that he does not consider entering or leaving his property to be dangerous. Mr Mogg, who was engaged by the Respondent, and Mr Brameld, considered that the sightline was satisfactory, based on their respective interpretations of the prescribed sight distance from a point 3 metres behind the "edge of the through carriageway" in the Respondent's Policy 18.06. Mr Brameld considered that if that Policy were applied strictly, there would be no approved driveways in St. Lucia. I accept that vehicles travelling along Swann Road are likely to be travelling more towards the median than the kerb. Mr Mogg used this "travelling line" for his calculations. I accept the evidence that the sightline of drivers exiting the land may be affected by vegetation in front of "Amersham Mews" and by parked cars. They may need to take care, for example by driving forward until the front bumper bar crosses the kerb line, hesitating until they can see around the landscaping, and then proceeding. I accept the distinction made by Mr Brameld that this is not a situation where sight distance is restricted by the geometry of the road. Rather, it is a matter of drivers taking care before entering the roadway. I note that the proposed driveway is to be graded to the standard stated in the Respondent's Planning Policy 18.06. I accept that there is the possibility of parked cars in Swann Road in front of the land and in front of Amersharn Mews, although this will be minimized by the Respondent's condition of approval that there be 8 visitor car bays. -- 14 of 20 -- 1 2 I consider that any potential problems concerning sightline can be overcome to a satisfactory degree by pruning of problematic vegetation and/ or careful driving on the part of persons exiting the land. If there is non-compliance with Policy 18.06 (which depends on the interpretation given to parts of it), then the strict requirements can be relaxed without causing unacceptable traffic safety problems. I find that Swann Road is a sub-arterial road with a significant volume of traffic, with short sharp peaks related to the timing of lectures at the University of Queensland. I find that the additional traffic generated by the proposal is insignificant in relation to that volume. I find that the existence of the U turn around the median almost in front of the land may present some traffic safety problems, but I do not consider that the number of cars likely to attempt this· manoeuvre is likely to create such a traffic hazard as to warrant refusal of the application. In any event, the Respondent or the responsible Authority can erect a "NO U turn" sign if this were to become warranted. I consider that traffic volume and traffic safety problems do not of themselves warrant refusal of the Application. Landscaping: The Appellants and the experts they engaged criticised the Plans of the Respondent by Election for their lack of detail about landscaping. During the hearing of the Appeal, the Respondent by Election remedied this by tendering a detailed Landscape Plan prepared by Landscan. This Plan shows that a part of the land is designated for landscaping, the size of which complies with the requirements of the Town Plan. However, the Appellants are concerned about the location of the proposed landscaping. The majority of the land nominated landscaping is at the rear of the land, where there is a 6 -- 15 of 20 -- 13 metre fall. This area may nevertheless be capable of some passive recreation use, although this may involve considerable expenditure. I find that the usefulness of the rear recreat- ion area to future residents of the proposed apartments, and its contribution to the visual amenity of adjoining owners, is limited by its location. Length of buildings: Policy 7.01 of the Respondent provides for 30 metres maximum. (This contrasts with the Guidelines' requirement of 20 metres.) The proposed development provides for front to rear walls, excluding the gap between the two buildings, of 41 metres. Messrs Tait and Kay considered that relaxation is justified because the proposal provides for two buildings, recesses, a step in the building, indented walls and planters. Mr Tait said "Great care has been taken architecturally to make the side facades both relate in scale and texture to the Guideline requirements". I accept that this may be so, but as I have already indicated the appropriate test is whether the proposal complies with the Respondent's formal planning documents and if not, whether relaxation is justified. I am not persuaded from the evidence that relaxation is justified. Side boundary setbacks: Paragraph 7.6.6 of the Town Plan requires side boundary setbacks of 3 metres or½ building height. The proposed development does not comply with this requirement to the following extent: -- 16 of 20 -- 1 4 According to the eastern elevation, the setbacks are (a) zero metres for approximately 9.5 metres in length, and varying in height up to a height of 2. metres ( b) the setback of 2. 258 metres for approximately 6 metres in length and varying in height from 3.5 metres at one end to 2.5 metres at the other end (c) there is a planter setback of approximately 1.2 metres for approximately 6 metres, of 1 metre in height. According to the western elevation there are setbacks of (a) zero setback of 9 or 10 metres in length at a height from 3 metres tapering down to zero and (b) approximately 2. 258 for approximately 6 metres in length and tapering in height from 5.0 metres to 3.5 metres. The extent of the non-compliance is illustrated by various coloured markings on Exhibit 36. Mr Tait conceded that in terms of the Town Plan these are very substantial relaxations. Concerns were expressed that zero setbacks necessarily lead to problems arising from access limitations. I find that the proposed setbacks on the eastern boundary will lead to the construction of buildings which will have an unacceptably bulky appearance and will be too close to the neighbours, especially the Conroys. I find that the relaxat- ions sought will have an unacceptable impact on the amenity of the Conroys and the MacGillvrays as well as being out of character with the area. The proposed development attempts to comply with the Guidelines by providing windows above a level of 1 . 5 metres above floor level and maximum length of 15 metres, and for all windows from significant living spaces facing towards the front and rear of the land. This contrasts with the -- 17 of 20 -- 15 requirements of the Town Plan which provides for full windows in walls within 4.5 metres of and facing the side boundaries. The Respondent by Election placed some emphasis on the measures reflected in its Plans to screen the side boundary balcony walls and the patio areas with vertical louvres, and planters and by other means. Mr Kay sought to justify the walls to the driveway on the basis that they serve to enclose the vehicle manoeuvring and parking areas, which will have the effect of containing noise and other pollution from vehicles and as such will ameliorate any adverse aspects on the amenity of adjoining owners. It emerged from the evidence that consideration of the proposal points to a conflict between two competing principles, namely the importance of privacy ( offered by a wall with few, or screened, balconies and windows) on the one hand and the desirability of a pleasing, not bulky, appearance on the other hand. I find that the relaxations sought are not justified, by reference to the provisions of the Town Plan or by reference to town planning principles. Site Cover: Section 7.6.6 of the Town Plan requires a site cover of 30%. This is significantly lower than the figure of 50% in the Guidelines. Section 7.6.15 provides for relaxation of development standards. The calculations of site cover by the various witnesses varied, from 50%-56.9% with the landscaped decks, to 38%-49.2% without the landscaped decks, eaves and balconies. In arriving at the figure of 38%, Mr Kay excluded eaves, balconies, partial basement carparks and landscaped decks over -- 18 of 20 -- 16 driveways. He sought to justify this as follows: open driveways and carparking areas are not included in the calculation of site cover; it is preferable to cover the majority of exposed areas with a landscaped deck which adds to amenity; eaves, balconies and landscaped decks assist with the appearance of the building for both intending residents and adjoining residents. I accept this evidence. I find that Mr Kay's approach to the calculation of site cover is reasonable. This results in a site cover figure of approximately 38%, which is in excess of the Town Plan requirement of 30% and a relaxation is necessary. Planning Policy 7.25 of the Respondent provides for relaxation in certain circumstances, which include compliance with other development standards and loss of existing or future amenity of adjoining sites in terms of privacy, overshadowing and outlook. Mr Kay emphasized design, orientation, streetscape, large areas of outdoor recreation space and minimisation of overlooking. I am not satisfied from the evidence that the relaxations sought have sufficient merit based on sound town planning principles. I consider there will be a loss of existing or future amenity for the residents of adjoining land. Summary: I find that the relaxations sought for site cover, length of buildings, side boundary clearances and car parking spaces are not warranted and that the proposal is not acceptable from a town planning viewpoint. I find that it will have an unacceptable impact on the amenity of neighbours in a number of important respects, which I have already outlined. They include, but are not limited to, the bulkiness of the buildings and the location of the recreation area. -- 19 of 20 -- For the reasons I have Respondent by Election has Appeal is allowed. 17 outlined, I consider that not discharged its onus. the The ( . I -- 20 of 20 --