Feros v Brisbane City Council & Anor [1992] QPEC 90

J IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 213 of 1991 BETWEEN: VICTOR GEORGE FEROS Appellant BRISBANE CITY COUNCIL Respondent LUCAS KALLINOSIS Respondent by Election REASONS FOR JUDGMENT QUIRK D.C.J. Delivered the 14- ti-. day of December 1992 This appeal by an objector is against the respondent's proposal to approve an application for consent to an apartment building development on land on the northern side of Gray Road, Hill End. The land is an area of a little over 800 square metres and has a frontage of 21.4 metres from which it slopes fairly steeply upwards to its rear boundary. The subJect land (as is surrounding land) is included in the Residential "B" Zone (with an "R.D.A. 4" designation) in the Town Plan. At present allotments in the area carry detached dwellings of an old style and of varying guali ty. Some, especially those on allotments to the north of the subject land and which front Dornoch Terrace are quite attractive -- 1 of 10 -- 2 examples of Queensland housing. While some of the dwellings have been converted into flats, the more modern style of unit development has yet to enter into the immediate area notwithstanding the land's zoning. The proposal involves a three storied apartment building containing four units. It is broken into two components each of which is orientated towards the land's frontage to enjoy views to the south and the Brisbane River. The front section is set back 2.5 metres from the side boundaries and the rear section has a zero setback from those boundaries. boundary setback is proposed to be 3 metres. The rear A full description of the proposed development is to be found in the ~ material exhibited in the Appeal and in the assessments of the Town Planning Consultants and Architect who gave evidence. Although there was considerable discussion regarding the proper description of the architectural style employed, it does not seem to me to be a matter of major importance. It would be fair to say that it has a distinct Mediterranean flavour and (to borrow Mr Humphrey's words) "it evokes among other things, links to Greek architecture and Greek culture" and it was deliberately sought by the proprietors of the land who intend to use it as an abode for themselves and other members of their family. It was not seriously disputed that the design was a thoughtful and commendable one. The issue in the appeal was whether it was an appropriate one for this site. The appellant, who is also a Town Planning Consultant of considerable experience, owns and resides upon land some -- 2 of 10 -- 3 allotments away to the north-east of the subject land. However, Mr Feros and members of his family own other land in the area• His mother is the owner• of land which adjoins immediately to the east. Other nearby residents objected and gave evidence at the hearing of the appeal. made in opposition to the proposal were that; The main points 1. It constituted over development of the site and the relaxations which the planning authorities needed to (by reason of the relevant provisions of the Town Plan) and were prepared to allow were not warranted; 2. It would result in intrusion of privacy, overlooking and loss of views; 3. Having regard to "the architectural expression and the placement size and extent of the development" the proposal would have a significant adverse and undesirable effect on the character and amenity of the area generally and the immediate area in particular. I have to say, without any hesitation, that the views expressed by the appellant and other objector witnesses were put forward with sincerity and conviction. One must respect their entitlement to those views and to any opinions which they hold regarding what is appropriate development in the area in which they live. The difficult task that faces the planning authority in this Court is to resolve, in as reasonable and just a way as possible, conflicts that arise between the wishes of the landholder to develop his property in a way which pleases him and the interests of other inhabitants of the area. As has been said so often in this -- 3 of 10 -- 4 Court, the necessary judgments must be made against the background of the relevant provisions of formal planning control, which, in this case, are found in the Town Plan for the City of Brisbane. The zoning and R.D.A. classification for the subject land and its surrounds conveys a reasonable expectation of re- development for medium density inner city housing and this was readily acknowledged by the appellant. The Town Plan contains, in Clause 7.6.6. certain performance standards applicable to development in R.D.A. R.4 areas. However, the opportunity to offer relaxation in respect of these standards is provided for in Clause 7. 6. 1 5. The matters in regard to which relaxation is required in this case involve site cover and rear and side boundary clearances. In more recent times, in an effort to get away from repetitively uninteresting forms of unit development that resulted from efforts to maximise development yield while remaining within performance standards, the planning authority has made public a set of "Draft Residential B. R. 4 Design Guidelines". The status of this document is anything but clear and is well short of that of a formally adopted policy. However, the evidence suggests that it has been generally well received and widely resorted to within the development industry and while Mr Feros explains that he had difficulties relating some of the stated "criteria" in the Guidelines to their aims. He was prepared to concede that: "The aims, intents and objectives of the guidelines are supported as statements worthy of and consistent with well held town planning principles". -- 4 of 10 -- 5 Mr Humphreys (the Town Planning Consultant called by the Respondent by Election) and Mr Lee ( an Architect and Town Planner called by the Respondent Planning Authority) agreed with this view and it seems to me 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 principles. exercised by employing proper town planning Mr Feros and Mr Vasdekis ( his colleague who is also a qualified Town Planning Consultant) contended that the proposed design was inappropriate for the area and not in conformity with that contemplated by the guidelines. Attention was drawn to the fact that a "flat roofed" design had been chosen and the point was made that not only was this atypical of the area but also in conflict with that part of the guidelines in which the following passage appears: "Aim 1 : To encourage design to the surrounding which contributes streetscape. which is complementary residential area and positively to its' Criteria (a) The roof of the principal building to incorporate steep pitched gables and hips with or without secondary lean to sections. Relaxation Relaxation Council is proposal is appropriate will be considered where of the op1.n1.on that the well designed and that it is in the area. Whatever compliments they might have been prepared to pay to this design (looked at in isolation) both Mr Feros and Mr vasdekis were firmly of the opinion that -- 5 of 10 -- 6 it was not one which was 'appropriate. in the area' . 11 Mr Humphreys and Mr Lee disagreed but it became clear that the source of conflict was a difference in definition of "the area" and what was appropriate for it. The assessment of Mr Feros and Mr Vasdekis was based on the "streetscape" to be found in Gray Road which is presently made up largely of high set wooden single unit dwellings of the older style. Both Mr Humphrey and Mr Lee rejected this approach. Mr Humphreys made the point that "the character of the part of Gray Road in which the site is located is unremarkable (and insignificant in terms of built form and landscape character) and not such that it should have a determining influence on the style of new development". He went on to say that: "The proposed development is characteristic of a style of architecture that is observable in the West End area and reflects its cultural heritage; it would provide a relevant and characteristic building which will enhance the future character of the area. More specifically, the proposed development represents an appropriate manifestation of the cultural heritage of the area, and a legitimate expression of the Greek ancestry of the owners of the property. It will result in the addition of a well designed building, which will provide a reminder of another era and culture, and add a desirable element of diversity to the architectural character of the area, rather than merely re-iterate consistent, ordinary, architectural features". It therefore appears to be a matter of perspective and while I understand the view put forward by Mr Feros and other residents of the area (particularly Mr Tsikleas who I thought gave me the benefit of his views in a very even handed and articulate way) in view of the expectations that should reasonably be entertained because of the land zoning and the R. D. A. designation, it seems to me appropriate to allow the -- 6 of 10 -- 7 existing character of Gray Road t a· t t· th o ic a e e nature of future development in the area. I also regard as sound and persuasive, Mr Humphreys more circumspect view of the architectural character of this part of the city as it should be seen to influence future development in the area. The matter of boundary clearances is one of major concern to Mr Feros. He was particularly alarmed at the proposal's "zero setback" f th •d bo d • f rom e si e un aries or the rear section of the apartment building and the prospect of a wall which would have a maximum height of five metres and run along the rear portion of the eastern boundary. In fairness it should be noted that, due to the fall in the land, the height of the wall will diminish considerably as one goes further back along the boundary but Mr Humphreys was prepared to acknowledge that it would have a somewhat dominating effect on the property adjoining to the east and this is certainly consistent with the apprehensions of the current occupier Miss James. Again, to be fair, it must be recognized that the adjoining property is narrow and its existing dwelling is built very close to the boundary but the matter of boundary clearances is not something that can be lightly set to one side. Mr Feros clearly took a very traditional view of the matter and placed considerable emphasis on the importance which has, over a very long period in town planning, been attached to the provision of adequate separation between buildings. He made the point in this way; " The provision of space-separation between individ~al residences and residential allotments derived originally from a public health concern and the need to secure full access to air and light and to secure -- 7 of 10 -- 8 privacy. These desirable attributes lessened with the passage of time. They continue to remain relevant to the residents living within communities." are in no way remain and will well being of He questioned the consistency of the guidelines' apparent tolerance of "zero setback" and its stated aim; "to ensure a reasonable measure of visual privacy between neighbouring buildings". Mr Humphreys, on the other hand, was prepared to take a less conservative view of the matter and accepted that the town planning approach reflected in the guidelines was an appropriate response to changing circumstances in the provision of housing in urban (particularly inner urban) areas. He saw potential disadvantages associated with "zero setbacks" on side boundaries being off set by other benefits that would flow from a more flexible approach to design and layout. In particular he referred to advantages in terms of visual privacy gained by orientating apartment buildings across allotments rather than along them. In this particular case he pointed to the removal from side boundaries of the movement of vehicles to and from the site and other attractive features of the layout which included the more effective use of private open space by future residents of the development. The broken form also led to a lessening of parent building bulk. Mr Humphreys added that the respondent's approach to this proposal was consistent with recent trends in relation to housing design that are evident in town planning in many other parts of the country. -- 8 of 10 -- 9 There is obviously a good deal of substance in each of the competing points of view but it seemed to me that a resolution of this particular question of boundary clearances came down to a choice between the more conservative approach advocated by Mr Feros and the more innovative approach adopted by the planning authority ( as reflected in the guidelines) which both Mr Humphrey and Mr Lee were prepared, as Town Planners, to support. It would also seem to me that the contest is not one that could be set specific to this application that involved questions of broader planning philosophy and technique which are, in my view, more appropriately settled by an elected planning authority than by this Court in dealing with an individual case. For that reason I would not be prepared to allow the appeal on the basis that relaxations which the planning authority has been prepared to offer this development in relation to boundary clearances are unwarranted. While not wanting to be repetitive, I want to emphasize that it is not simply a case of applying the guidelines simply because they are there. I have treated them as being no more than an expression of what is seen as appropriate town planning practice. Had Mr Humphreys and Mr Lee not been prepared to support them on that basis they would have been ignored. On the whole of the evidence and after a close consideration of the case which was carefully prepared and presented by the appellant, I have concluded that the onus of -- 9 of 10 -- 10 showing that the appeal should be allowed has not been discharged. The appeal is accordingly dismissed. -- 10 of 10 --