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[2015] QPEC 54
General information, not legal advice.
Planning and Environment Court of Queensland
2015-11-06
Original judgment source is linked above.
[1] This is a submitter appeal against Council's decision to approve (subject to conditions) a development application by the Co-Respondent (BA) for a development permit for material change of use for a Multi-Unit Dwelling (15 units) and preliminary approval to carry out building work (Development Application) in respect of land described as Lot 17 and 18 on RP42245 situated at 40-42 Donaldson Street, Greenslopes (Site). The development application was lodged on 28 March 2014, when City Plan 2000 (CP2000) was still in operation, and some three months prior to 1 July 2014, when City Plan 2014 (CP2014) came into force. The Development Application is to be assessed against the provisions of CP2000 in terms of s 495(2) of The Sustainable Planning Act 2009 (SPA), but the court may give weight to any new laws and policies considered appropriate. That raises for consideration the relevance of the provisions of CP2014.
[2] Of the 15 residential units proposed, 11 will be two bedroom and 4 three bedroom units. The Gross Floor Area (GFA) of the proposed development is 1,479m2, on a land area of 1,348m2, giving a GFA of approximately 109% of the site area.[1] The building is proposed as a 3 storey structure with a maximum building height of 9.5m above ground level to the underside of eaves; though there is an issue as to the number of storeys. Mr Brown, the Appellants' town planner, considers that in some respects the building will present as a 4 storey building. Frontage to Donaldson Street is 25.2m along its southern boundary, and vehicular access is proposed from Donaldson Street to a basement/ground level car park. The proposed development has been designed for one unit at ground level to obscure the car parking area, and 24 car parking spaces are proposed: 20 to be dedicated for resident use, and four for visitors.
[3] At the hearing, the Co-Respondent applied to change the approved plans by reconfiguring the level three entrance from the lift for units 14 and 15 by removing an eastern part of level three and the roof, amending the ridgeline of the roof to align with the northern end of the lift, and amending the north eastern section of the roof by providing a minor diagonal 3° slope to the east.[2] It was not opposed, and I found that it constituted a minor change and ordered accordingly.
[4] The site is located in Greenslopes, some 5km southeast of the Brisbane CBD, accessed via Logan Road and well served by public transport by virtue of that main arterial road and its proximity to the Brisbane CBD. The site is on the eastern side of Logan Road in a locality that has a hilly topography and a residential character. It is in close proximity to the Greenslopes Mall, on the corner of Logan Road and Sackville Street. This centre is identified as a corridor hub/growth node under CP2014 and is a prominent non-residential land use in a locality.
[5] Immediately adjoining the site to the east and west are existing dwelling houses, but the land immediately adjoining the site to the north contains an existing 3-storey unit development, Cromwell Court at 33 Curd Street. The town planning experts agree that this building was erected either in the late 1960s or early 1970s.
[6] Two house allotments to the east of the site is a 3 storey dwelling at 46 Donaldson Street. Apart from those 3 storey buildings, the immediate locality contains mainly 2 storey dwellings mostly in attached houses. There is a 2 storey dwelling at 29 Donaldson Street which appears to the planning experts to have been developed in the 1990's.
[7] Peppered through the wider locality are multiple unit developments of 2- and 3-storey height so that the land use in the local and wider locality cannot be said to be homogeneous.
[8] Under CP2000, the site is located within the Low-medium Density Residential Area (LMDR Area) and the Holland Park-Tarragindi District Local Plan (Local Plan). Within that local plan site is identified in the Hillside Character Precinct.
[9] Under CP2014, the land is in the Low-medium Density Residential Zone (2 or 3 storey mix Precinct) and in the Holland Park-Tarragindi District Neighbourhood Plan. Within that neighbourhood plan is included within the Hillside Character Precinct (NPP-008).[4]
[10] Broadly speaking, the disputed issues as identified by the town planners in their joint report[5] are these:-
[11] The subject development application is impact assessable, and is to be assessed in accordance with SPA s 314(2) and (3) and decided in accordance with ss 324 and 326. While the appeal is a submitter appeal, BA bears the onus of establishing that approval should be granted and the appeal dismissed.[6] The appeal is by way of hearing anew.[7] Any decision must not conflict with the Planning Scheme.[8]
[12] There were 27 submissions received by Council, of which it considered 21 valid and six invalid.[9] All submissions objected to the proposal.
[13] Of those submitters who elected to become Appellants, affidavit evidence was received from Colleen Canniffe, Richard Fetherston, Virginia Prowse, and Dallas Nichol. None of them was cross-examined. A summary of the issues raised in those affidavits is:-
[15] Ms Morrissy and Mr Buckley identified relevant provisions of CP2000 they say are relevant to the appeal. Those provisions are set out in Schedule A.
Opinions of Ms Morrissy and Mr Buckley in Joint Planning Report
[16] Mr Buckley and Ms Morrissy point to a range of housing types and sizes envisaged in the Residential Areas generally, in both the Low-medium Density Residential Area (LMDR Area) and in the Holland Park-Tarragindi Local Plan area, with higher density housing envisaged in or near multi-purpose centres, near public transport and along arterial roads. Further, they say residential buildings larger than houses are anticipated in both those areas provided they co-exist comfortably with neighbouring houses; are compatible in scale and design with neighbouring houses; and are of a size and bulk consistent with the low to medium density of the locality. They say the peppering of the wider locality with multiple dwellings is an indication of the way CP2000 has been implemented. Units are mixed with detached houses, with the multiple unit developments having varying degrees of exposure and visibility depending on their context.
[17] Mr Buckley adds that the locality is not homogeneous, in that the proposed development is not the first of its kind and will be a continuation of the relatively small proportion of land in the area being developed for multi-unit residential purposes as the Intent of the LMDR Area anticipates.
[18] Ms Morrissy agrees that the proposal complies with the principles of the Intent of the LMDR Area, given that the locality already accommodates a mix of houses, single unit dwellings and multiple dwellings, as evidenced in Figure 8 of the Joint Report.[12] It involves a 3 storey built form in an area that already accommodates 3 storey residential buildings, further the site is located in close proximity to the Greenslopes Shopping Mall, a district centre, and bus stops on Logan Road, an arterial road, thus being well placed to provide increased residential densities. Ms Morrissy's above comments stand notwithstanding that the proposed GFA of 109% will exceed the maximum GFA of 50% or 60% in close proximity to public transport or an arterial road in the Intent of the LMDR Area paragraph 5.4.1.
[19] Mr Buckley agrees with Ms Morrissy that compliance is achieved, notwithstanding the GFA exceedance, observing that in some cases an indication of a high GFA reflects an inability to meet other performance criteria, such as, height, lack of landscaping, tight car parking or a single "fat" building. As to the current proposal, however, he says the setting on the site and its height are within reasonable expectations and the proposed building's presentation to all boundaries, particularly the street, displays a high design quality.
[20] As to the proposed development being able to comfortably co-exist with neighbouring houses, being of a scale and design consistent with neighbouring houses and being of a size and bulk consistent with the low to medium density of the locality, both Ms Morrissy and Mr Buckley agree that:-
[21] As to the bulk and scale of the proposed building, both Ms Morrissy and Mr Buckley agree that it has been reduced by the adoption of most of the methods listed in the acceptable solutions that correspond with the requirement for residential development to be compatible with traditional character houses, namely:-
[22] As to provisions of the Residential Design - low Density Character and Low-medium Density Code, raised by the Appellants in the grounds of appeal, Ms Morrissy and Mr Buckley say:-
(a) the size and bulk of the proposed development is consistent with the low to medium density nature of the locality for reasons already stated;
(b) front building setbacks to Donaldson Street are varied, ranging from 3.4m to 12.6m which desirably, does not reflect a consistent or uniform front setback;
(c) complementing the existing variable setbacks, the proposal will have varied setbacks of 6m, 8m and 10m respectively to Donaldson Street;
(d) potential for overlooking and privacy issues has been addressed through the location of private screens to balconies, the imposition of a private screen condition of approval;
(e) whilst some overshadowing of neighbours' houses will occur, particularly during the winter solstice (21 June) at 9am, the sun shadow diagrams submitted with the application indicates the loss of sunlight will be short lived as shadowing is well reduced by 12pm. On this basis, the proposed development will not significantly reduce daylight to open space or habitable rooms in adjacent developments; and
(f) waste disposal and collection areas are located within the basement car park area, will be unobtrusive and unlikely to have adverse impacts on neighbouring properties.
[23] For all the above reasons, Ms Morrissy and Mr Buckley considered that on balance, the proposal has been designed to co-exist comfortably with neighbouring houses and meets the intended planning outcomes for a multiple dwelling located in the LMDR Area and Hillside Character Precinct of the Local Plan of CP2000.
[24] As to whether the proposal will achieve the intended character planned for the subject site, Ms Morrissy and Mr Buckley observed that, where a development is to be located on major ridge lines in the Holland Park-Tarragindi Local Plan Area, as here, it must be designed to be sympathetic to existing streetscape and/or traditional character so as to minimise visual impact and protect significant views and vistas. It must also be compatible with traditional character house scale. Having said that, however, they make the point that, in their view, the proposed multiple dwelling is not thereby required to replicate or imitate traditional housing scale or building form; the test is one of compatibility rather than replication or imitation. I agree with that view.
[25] In their view, the proposal demonstrates compatibility with traditional housing scale by virtue of these features:-
(a) the detailed and broken up design of the Donaldson Street façade giving the appearance of two attached houses/identifiable elements, an important aspect of the Hillside Character Precinct NPP-008 within which it will be located;
(b) segmenting of the side elevations of the building through recesses giving the building an appearance of three attached buildings;
(c) the adoption of a house compatible building height which does not significantly exceed surrounding building height resulting in it not being visually prominent or out of character in the locality;
(d) building height and bulk is reduced through the articulation of all elevation through:-
• distinct floor levels, recesses to increase building setbacks, balconies, overhangs, sunhoods, batten balustrading and privacy screens;
• the incorporation of the third storey at the rear of the development within the roof space;
(e) adoption of clearly distinguishable parts similar in scale to houses; and
(f) a proposed building height which will not dramatically interrupt the rhythm of stepping rooflines in Donaldson Street.
[26] In their view, the above identified features are integral to the design and form of the building and are not merely superficial as suggested by Mr Brown. Further, whilst the finished product will be of a scale bigger than any house in the area, it does not render it unacceptable because multiple dwellings are contemplated in the area and its appropriateness is to be determined, not by the sum of its parts, but their design relationship to each other and the overall quality.
[27] Accepting that the issue of the existence or otherwise of any conflict with CP2000 is a matter for the court, Ms Morrissy and Mr Buckley agree that the only one area where a conflict could arise, is the GFA exceedance, but both consider that any conflict thereby found would be minor. In that event they say the following grounds in the public interest would justify approval notwithstanding any such conflict:-
(a) there is a need for the proposed development;
(b) it would not be out of character with the surrounding development but rather a part of the anticipated character of the area;
(c) no unacceptable amenity outcomes will flow;
(d) the site is well located with close and convenient access to shopping facilities, employment, health and education facilities and public transport;
(e) it would contribute towards the achievement of desirable town planning objectives in City Plan 2000 and City Plan 2014 and the South East Queensland Regional Plan;
(f) it incorporates high quality architectural features which will make a positive contribution to the character of the area; and
(g) will contribute towards affordability and diversity of housing in the area.
[28] After identifying the relevant provisions of CP2014, Mr Buckley and Ms Morrissy made the following comments in relation to that plan:-
(a) there is no significant change in planning intent for the Holland Park-Tarragindi Local Plan Area;
(b) given the site is in a Low-medium Density Residential Zone (2 or 3 storey mix precinct) and Donaldson Street has a reserve width of 15.5m, the applicable assessment table identifies a multiple dwelling of 3 storeys and 11.5m in building height as Code assessable where any part of the site is within 400m walking distance of a dedicated public access point or a railway or bus way station;
(c) as with CP2000, the current plan evidences an intent of the Low-medium Density Residential Zone for a mixture of dwelling types such as houses, duel occupancies and multiple dwellings, a mix of residential built form including 2 and 3 storey buildings and higher density and larger built form locations within easy walking distance of a public transport node, near public transport and near large centres or key destinations.
(d) notably, the Overall Outcomes for the relevant zone which is specific to the 2 or 3 storey mix precinct relevant here is the recognition that residential uses other than a dwelling house are to be of a "scale and bulk that co-exists with an adjoining dwelling house, even though it might have a bulk and scale greater than a dwelling house";
(e) the Multiple Dwelling Code paragraph 9.3.14 includes similar tests to those in CP2000.
[29] In their view, CP2014 does not introduce any additional provisions or tests that would result in any proposed development being in conflict with the applicable intended planning outcomes.
[30] Mr Buckley makes the further observation that the Multiple Dwelling Code in CP2014 will have the effect of creating greater separation between multiple dwellings in the future in subject areas. He points to what he describes as an almost complete abandonment of the concept of Gross Floor Area as a regulator of formal of residential land use with that concept being irrelevant in 95% of new multiple dwelling developments in Brisbane. In place of reliance upon the GFA is a focus on separation of proposed buildings from existing buildings over and above boundary setbacks. He sees this provision (PO8-Multiple Dwelling Code) requiring greater separation between multiple dwelling buildings will result in fewer multiple unit developments resulting in the favouring of large sites such as the subject site for such development.
Mr Buckley's Individual Report 14 April 2015**[14]**
[31] In his individual report, Mr Buckley reinforces his view in relation to CP2014 and concludes that the proposal has significant merit; there being no town planning matters warranting refusal. He considers it achieves a desirable built form, fitting comfortably within the site and the broader local context without creating any unacceptable impacts on the amenity of surrounding developments. He points also to the rigorous assessment process of council leading up to the eventual approval, concluding that, in his view, the development should be approved.[15]
Opinions of Mr Brown Expressed in Joint Planning Report
[32] Mr Brown referred to the Intent of the Low-medium Density Residential Area,[16] stating that: "this area will contain a mix of houses up to 2 storeys and 2 and 3 storey multi-dwellings and single dwellings and that any new development must be designed to co-exist comfortably with neighbouring houses to be reflected in the intensity and scale of development and a strict adherence to a maximum (gross) floor area of 50% rising to 60% if located in close proximity to public transport or on arterial roads."
[33] He referred also to Desired Environmental Outcome (DEO) 1[17], which allows for higher densities and 3 storey buildings near public purpose centres, public transport and along arterial roads. Finally, he referred to the purpose of the LMDR Code requiring new developments to be compatible in scale and design with neighbouring houses, and to Performance Criterion P1, for multi-unit dwellings in Low-medium Density Residential Areas[18], as requiring development size and bulk to be consistent with the low to medium density of the locality.
[34] Mr Brown sees the locality as comprising predominately 2 storey detached houses and multi-unit developments, generally consistent in character with detached house development on separate allotments. As to the 3 storey multiple dwelling developments, he says, "for the most part, they occurred prior to the introduction of CP2000". As to the proposed development, he considers its bulk and scale, when compared to the surrounding predominant form of development, to be in conflict with P1 of the LMDR Code as not being a development of size and bulk consistent with the locality. Likewise, he considers it in conflict with the purpose, being incompatible in scale and design with neighbouring houses.
[35] Mr Brown further concluded that the substantial dimensions and scale of the proposal, given the size of the site and characteristics of the locality, rendered it in conflict with Development Principle 2.3 of the Local Plan. That principle speaks of any new development being sympathetic to existing streetscapes and/or traditional character of the district and contributing to the distinctive and identifiable character and sense of place of the local neighbourhood and district as a whole.
[36] Again, Mr Brown finds conflict between the proposal and Performance Criterion P1 of the Hillside Character Precinct,[19] which speaks of residential development being compatible with traditional character house scale; to be designed and sited to retain and reinforce the predominant development pattern and form of the area being separate allotments whether or not the site area exceeds predominant lot sizes or is an amalgamation of allotments; with tradition character house scale uniformly spaced and consistently stepped across well treed hillsides when viewed from the visual catchment.
[37] In Mr Brown's view, the conflict with P1 stems from the following:
(a) While located on two lots, the built form does not continue to reflect the traditional subdivisional patterns and includes separate allotments. In that regard, he points to the multi-unit developments at 20 and 24 Bindaree Street[20] and 80 Plimsoll Street, Greenslopes[21] He considers those developments as compatible in scale, height and bulk in terms of P1, compliant with the Local Plan and reflecting the rhythm of the surrounding detached house development. He considers those developments each present as a number of separate buildings, as does 29-31 Donaldson Street.
(b) Given the proposed building length of 44m, its width extending to 20m and the site cover of approximately 55%, all under one roof, the proposal does not retain a traditional scale of built form, presenting as a single large building on the site.
(c) The building footprint is much greater than traditional housing adjacent lots.
(d) The setbacks from the basement to both side boundaries is inadequate to provide for deep planting landscaping with large trees/shrubs along its full length, resulting in the treed hillside character not being maintained. From Donaldson Street the hillside will present as dominated by a relatively large bulky building, occupying the majority of the site.
Hillside Character Precinct - Performance Criterion P2
[38] Mr Brown regards the proposal as also conflicting with Performance Criterion P2 of the Hillside Character Precinct, which provides for any residential development to be compatible with traditional character houses when viewed from the visual catchment as to height, scale and proportions.[22] He acknowledges that the proposal has utilised many of the design elements in the corresponding Acceptable Solutions A2.2 of P2, but regards these as superficial design treatments which do nothing to alter the bulk and scale of the building to alleviate the conflict with P1. He points to A2.2, which refers to building height exceeding the prescribed Acceptable Solutions, which are to be found in the Residential Design - Low Density Character and Low-medium Density Code[23], where Acceptable Solution A1.2 refers to a building height, at any point, to be no more than 8.5m above ground level and 2 storeys. The proposal has a maximum height of 10.8m at the northern corner and the building. It is 3 storeys in height within the definition of ground level in CP2000, but 4 storeys under CP2014.
Hillside Character Precinct - Performance Criterion P4
[39] Next, Mr Brown considers that the proposal also conflicts with Performance Criterion P4 of the Hillside Character Precinct, which provides that a development along ridgelines is not to dominate the skyline and must contribute to a consistent rhythm and sense of scale along the ridgeline when viewed from the visual catchment. In Mr Brown's view, the proposal will be the largest building in the locality and unsympathetic to its surroundings, hence the conflict.
Hillside Character Precinct - Performance Criterion P6
[40] Finally, Mr Brown considers the proposal in conflict with Performance Criterion P6 of the Hillside Character Precinct by virtue of its overall size and scale and its setting. P6 speaks of residential developments being designed to retain or reinforce the landscape character and physical setting of the locality and to break up building bulk so that the development appears, relevantly, as separate buildings consistently spaced along major ridgelines.[24]
[41] Contrary to the view of Ms Morrissy and Mr Buckley, Mr Brown considers the proposal conflicts also with CP2014, in the following respects:-
• The site is within the Low-medium Density Residential Zone (2 or 3 storeys Mix Zone Precinct). The purpose of the Low-medium Density Residential Zone Code is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings[25] to be achieved through the following relevant Overall Outcomes for:-
(a) development location and uses;[26]
(c) zone precincts, including the 2 and 3 storeys ix precinct zone.[28]
Overall outcome 4(d) requires development to co-exist with dwelling houses, duel occupancies or multiple dwellings. Mr Brown considers that the excessive bulk and scale of the proposal, relative to surrounding development, renders it in conflict with overall outcome 4(d).
Overall outcome 5[29] speaks of the height, bulk, scale and form of any development being tailored of its specific location and site characterises, with a building height and bulk responding to the nature of adjoining dwellings and their site characteristics (shape, frontage, size, orientations, slope and nature). Further, adjoining sites are to have sufficient privacy and good access to sufficient daylight, sunlight and breezes to enable intended use of indoor and outdoor spaces. Mr Brown says the proposal is in conflict with those overall outcomes when its excessive size and discordant character is compared with the predominant character surrounding it. He sees the proposal as one building comprising multiple dwellings with substantial dimensions of height and length particularly, resulting in its excessive size.
The relevant Zone Precinct Outcomes Mr Brown identified[30] are 7(a)-(d) which speaks of development being of no more than 2 storeys, or 3 storeys in height where located within easy walking distance of a public transport node (undefined), located on suitable sites, in accessible locations near to public transport and larger centres or key destinations. Scale and bulk must be such as to co-exist comfortably with adjoining dwelling houses, even if the bulk and scale are greater than a dwelling house. Height and setbacks are to provide a sensitive transition for adjoining dwelling house or land or residential development to incorporate setbacks and landscaping to contribute to a cohesive and compatible human-scale streetscape. Finally, any development must respond by protecting view corridors, reinforcing a green landscape character and responding to the surround character and architecture.
[42] Mr Brown considers that the proposal conflicts with the above outcomes, especially he says, because the building is a 4 storey building under CP2014. It conflicts with outcomes 7(a)(i) (3 storeys where located within easy walking distance of a public transport node), 7(c) (scale and bulk co-existing comfortably with adjoining dwelling house even if of larger scale and bulk) and 7(d) (design height and setbacks to provide a sensitive transition at the edge to adjoining dwelling house or land). Again, Mr Brown says that attempts, through design features, to mitigate impacts, does not change the fact that the proposal presents as a very large building and will be overbearing in its setting, out of character with neighbouring detached dwellings and, more generally, with the predominant character of the wider locality, comprising of smaller and lower buildings, including multiple dwellings.
Multiple Dwelling Code - Overall Outcomes**[31]**
[43] Next Mr Brown points to Overall Outcomes 2(e), 2(h)(v), 2(l)(ii) and 2(q) of the Multiple Dwelling Code. These provisions deal with the bulk, scale, form and intensity being integrated with the intended neighbourhood structure for the area (2(e)), ensuring a high level of amenity for adjoining residents including access to natural light, sunlight and breezes (2(l)), mitigation of amenity impacts including protecting personal privacy through appropriate separation of buildings and screening (2(q)). Brown considers that the proposal conflicts with all of these outcomes.
[44] He relies upon Performance Outcomes PO5, PO6, PO8 and PO11[32] to found his opinion. These deal with bulk and scale being consistent with the character of the local area and street (PO5), building height consistent with streetscape, local context and intent for the area, having regard to the predominant height of existing and approved buildings in the street and the provision of appropriate separation and sensitive transition between houses and higher scale building forms (PO6). PO8 deals with separation from existing buildings, to be consistent with the form and character intent for the local area and the protection of residential amenity, including access to natural light, sunlight and breeze. Finally, PO11 deals with a requirement that the side boundary setback minimise the development's impact on amenity and privacy of neighbours, contribute to the rhythm and pattern of the streetscape and provide for natural light, sunlight and breezes. In Mr Brown's view the dimensions and form of the proposal renders it simply too large to satisfy the above assessment criteria, resulting in it having unacceptable impacts upon adjacent properties with the result that it conflicts with the above provisions of the Multiple Dwelling Code.
Holland Park-Tarragindi Neighbourhood Plan - City Plan 2014
[45] Mr Brown sees the proposal as conflicting also with Overall Outcomes for Hillside Character Precinct NPP-008 within which the site is located.
[46] The Overall Outcomes relied on are 11(a), 11(b) and 11(c)[33] which deal with the maintenance of hillside character through sympathetic development, minimising visual impact within its visual catchment, contribution to a consistent rhythm and sense of scale along the ridgeline of residential development to provide for the appearance of traditional character houses uniformly spaced and stepped across well-treed hillsides with compatible building height, bulk and proportion. Again, the conflict Mr Brown identified relates to the proposal's size, scale and overall dimensions in its setting.
Assessment Criteria for Hillside Character Precinct NPP-008[34]
[47] Mr Brown also considers that the proposal conflicts with Performance Outcomes PO17, PO18 and PO22 of the Assessment Criteria for the Hillside Character Precinct NPP-008. PO17 speaks of residential development being compatible with traditional character house scale and design and sited to retain and reinforce dominant development pattern and form of separate allotments (whether or not exceeding predominant lot sizes in the area or amalgamation of allotments), buildings of traditional character house scale uniformly spaced and consistently stepped across well-treed hillsides when viewed form the visual catchment. PO18 speaks of height, scale and proportions of any development being compatible with traditional character houses when viewed from the visual catchment and PO22 calls for the design of residential development to retain or reinforce landscape character and the physical settings of the locality, breaking up the building bulk so as to appear as a collection of separate buildings uniformly sited on well-treed hillsides or separate buildings consistently spaced along major ridgelines. Once again, Mr Brown's conclusion as to conflict with the above criteria rests on his opinion that the proposal presents as one building of substantial proportion, out of character with the surrounding detached house development and not presenting as a collection of separate buildings.
[48] Mr Brown concluded his assessment of the proposal against CP2014 by returning to what he considered to be the existing form and pattern of development in the locality. That, he says, predominately comprises 2 storey detached houses and 2 storey multiple dwelling developments, generally having an appearance consistent in scale and form with detached housing on separate allotments. He says any three level multi-unit development within the locality represents a relatively small proportion of the total development within the Hillside Character Precinct. He refers to Figures 8 and 9 of the joint report[35] prepared by Ms Morrissy. Figure 8 identifies multiple dwelling sites in the relevant precinct NPP-008. Figure 9 identifies 3 storey residential buildings within the precinct and is to be read with Figure 9(b) containing a series of photographs of the buildings on those sites. Table 3 to the report comprises of Mr Brown's comments on each of the P1 sites identified in Figure 9.
[49] Mr Brown acknowledges that Figure 8 shows 30 existing multiple dwelling sites currently developed within the precinct. Figure 9 identifies 12 multiple unit dwelling developments of 2/3 storeys or 3 storeys in height, two of which front Logan Road and/or are immediately adjacent to the Greenslopes Shopping Mall. Figure 9 also includes eight detached houses, four being 2/3 storeys or 3 storeys and four being 2 storeys in height.
[50] He considers that development, since the introduction of the City Plan 2000 Holland Park-Tarragindi Local Plan, has the form, pattern and scale consistent with the intent of the Hillside Character Precinct with the more recent development generally at a house compatible scale and having the appearance of a collection of separate buildings. That accords with the view expressed by Mr Buckley and Ms Morrissy above.[36]
[51] In conclusion in relation to CP2014, Mr Brown expressed the view that the intent and purpose of the Holland Park-Tarragindi District Local Plan under CP2000, including the Hillside Character Precinct, is essentially unchanged by the neighbourhood plan for Holland Park-Tarragindi in CP2014. The particular circumstances and character of this part of Greenslopes are, in Mr Brown's view, reflected in the local planning instruments in both CP2000 and CP2014. He sees those intentions as reflected in multiple dwelling developments that have taken place in more recent years since CP2000 came into effect in 2003. He contrasts that with the older Cromwell Court at 33 Curd Street, Greenslopes[37] which he says was built in the 1970's. He does not accept that events have overtaken the planning intent in those two planning schemes so as to reduce the importance of height, scale and bulk as substantial issues for adjoining residents and within the wider locality. Mr Brown repeats that the proposal does not appear as a collection of separate buildings, is not compatible with traditional character house scale, nor designed and sited to retain a dominant development pattern and form of development on separate allotments. It conflicts with both planning schemes and he puts that these schemes are the proper foundations of the reasonable exceptions of the community in this locality for residential development.
Individual Report of Mr Brown dated 13 April 2015
[52] In Mr Brown's individual report of 13 April 2015,[38] he repeats his earlier views that the character and scale of the proposed building is inconsistent with the locality and broader planning area. In his view, the appearance and presentation of the proposed building is to be considered from both the immediate locality, in relation to adjacent development, and from nearby streets, particularly Donaldson Street. He considers that CP2000 and CP2014 intend, essentially, the same form and scale of development for Precinct 8 to reflect compatibility with traditional character house scale, design and siting to retain and reinforce the predominant development pattern of the hillside locality. The proposal being one large building 43m in length and up to 4 storeys in height illustrates the conflict with PO19 of the Neighbourhood Plan Code[39] which speaks of development being designed, sited and landscaped to minimise the impact of incompatible building bulk. That Performance Outcome has no corresponding Acceptable Outcome.
[53] Mr Brown acknowledges that nothing may turn on what he describes as a technical or legalistic construction of the planning scheme to precisely calculate the particular number of storeys in the proposal but says it is still necessary to determine the height of the proposal, both in storeys and absolute terms, to enable comparison with existing and intended development in the locality. He sees the real issue as how the proposed building presents in terms of height, bulk and scale.
[54] In Mr Brown's view the plans the subject of the minor change order shows[40] the proposal is a 4 storey building under both CP2000 and CP2014. He refers particularly to drawing number A3-100[41] and takes issue with the opinion expressed by Mr Buckley and Ms Morrissy[42] that the third storey of the proposed building, where the site is at the highest contour elevation, is incorporated within the roof space area.[43] In his view when sections 1 and 2 on that plan are considered together the height of what he says is level four, of 10m and slightly higher in parts above ground level, does not present as being within roof space but presents as an additional fourth storey.[44] That, coupled with the 3m northern boundary clearance, exacerbates the impact of bulk and scale upon neighbouring residential properties by extending the highest levels of the proposed building on the site adjacent to those neighbouring properties.[45]
[55] Mr Brown concluded his individual report by saying that the proposed development substantially conflicts with both CP2000 and CP2014 and exceeds the reasonable expectations of the site to be derived from the provision of those two plans.
Grounds Relied Upon in Event of Conflict with Planning Scheme
[56] As to the grounds proposed by Mr Buckley and Ms Morrissy, as being sufficient grounds in the event a conflict with the planning scheme is found, Mr Brown says there are not sufficient grounds to approve the application despite what he sees as a substantial conflict with the clear planning strategy in both CP2000 and CP2014. In support of that view he makes seven points:-
(a) no need has been established for the form of development proposed;
(b) the proposal is out of character with surrounding development, both existing and intended;
(c) the size and scale of the proposal in terms of its overbearing nature in the locality and likely shadowing would bring adverse amenity impacts;
(d) attributes of the site, namely access to shopping, employment and public transport, remain the same independently of the scale and size of the proposal;
(e) the relevant local planning instruments applying to the locality are an outcome of the intentions of City Plan 2000, City Plan 2014 and the South East Queensland Regional Plan;
(f) architectural features do not overcome the inherent conflict with the planning scheme and will be present in the event of a complying building; and
(g) the contribution towards affordability and diversity of housing in the locality could be similarly achieved with a compliant building consistent with the character and scale of character of detached housing in the locality.
The Evidence of Mr R Olsson - Visual Amenity and Architecture Expert
[57] Mr Russell Olsson, visual amenity and architecture expert, provided a report dated April 2015[46] and gave evidence. In a very carefully thought out report, he firstly identified grounds relied upon by the appellants, including the further issues raised at trial by Mr Brown and addressed each of those issues seriatum. Set out below are those issues and Mr Olsson's response to them.
[58] The proposal is generally inappropriate and in conflict with the Intent of the Low-medium Density Residential Area of CP2000 due to:-
[59] Mr Olsson considers the development co-exists comfortably with neighbouring houses given that:-
(a) its height is acceptable, it is no more than 3 storeys in height and is on a site located a short distance from public transport services;
(b) the street, side and rear setbacks create a built form compatible with surrounding houses;
(c) potential privacy issues are resolved through setbacks, window designs, balcony screening and landscape screening;
(d) it is compatible with the surrounding house forms when viewed within the visual catchment;
(e) the design is of high quality and fits comfortably with its surrounds, particularly given that the catchment includes a variety of dwelling types of varying design and appearance;
(f) whilst the GFA is greater than .5 times the site area the above design strategy results in an acceptable development within its context which will ultimately provide a high quality built form comfortably co-existing with its surrounds; and
(g) no unacceptable amenity impacts result and it would support the character of the area.
[60] The proposal does not meet DEO1 of the Low-medium Density Residential Area in CP2000 because it is not of a house-compatible scale and does not ensure the area is predominately no more than 2 storeys.
[61] DEO1 allows of a 3 storey house compatible scale building here multi-purpose centres, near public transport and along arterial roads. The proposal is of a house compatible scale given:-
(a) It has a similar scale to existing houses in Donaldson Street and is 3 storeys in height and, when viewed from Donaldson Street, the roof edge of the house to the east of Lot 19[47] is approximately the same height as the highest point of the proposed roof as viewed from Donaldson Street. This is achieved by the proposed car park being at a lower level than the base of the existing house on Lot 19 which house has its lowest floor level raised above ground level. The house on Lot 20[48] is of similar height and scale as that on Lot 19 and of the proposal.
(b) The proposal is designed with its roof pitching down towards the side boundaries to minimise height differences with neighbouring houses.
(c) The house on Lot 16[49] addresses Holland Street and the rear of the house is approximately 12m from the western side of the proposed building, with its ridge at floor level of level two of the proposal. The proposal has its pitched roof down towards the existing house. The combination of the building separation and sloping roof creates acceptable transition of built form. Ms Strasser's garage is an auxiliary building to the house and visually separates the proposal from the house on Lot 16.
(d) Level 3 of the proposal, the topmost level, is substantially setback from Donaldson Street and is in the centre of the block. The slope of the land results in it being two and a half to three storeys above natural ground level towards the rear of the proposal. It is setback 5.9m to 6.8m from the western boundary and 4.5m to 5.4m from the eastern boundary, which setbacks substantially reduce the overall scale of the proposal relative to adjoining houses.
(e) The 3 storey proposal merely replaces a 3 storey house historically located on the site.[50]
(f) The proposal will be consistent with existing built form in the area comprising a mix of 2 and 3 storey houses and multi-unit dwellings and will be located a short walking distance from high frequency bus services along Logan Road, Chatsworth Road and at Greenslopes Mall.
[62] The proposal conflicts with the Intent of the Hillside Character Precinct of the Holland Park-Tarragindi Local Plan because it is not of compatible building height, bulk or proportion.
[63] The proposal is compatible in height, bulk and proportion to development in the Hillside Character Precinct given the following:-
(a) Its height is compatible with houses in Donaldson Street as a result of houses on Lots 19 and 20 having their ground level raised above ground level on a base (Lot 19) or above a garage (Lot 20) and their roof ridges are similar in height to the proposal when viewed from Donaldson Street.
(b) Building height in the precinct follows the topography. The proposal steps down the hill from the northwest to the southeast and in that line the land falls 3m and the building steps down 1 storey, thus maintaining a relatively consistent relationship with the hillside, reinforcing the topography.
(c) The proposal's bulk is minimised by stepping the building plan and elevation to make a highly articulated overall built form, further modulated with a range of balcony types and building materials and colours to create a range of small scale elements in all elevations. The Donaldson Street building frontage is divided into a series of bays stepping from the south towards the east and ranging from a distance of 6m to 10.6m from the street boundary. This results in the creation of two wider bays and one narrower bay, the former containing units 1, 2 and 8 and each being approximately 8m wide, 9m with roof eaves. Those widths are similar to the widths of many houses in the precinct. For instance, houses on lots 12, 13, 19 and 20[51] are all 8m to 10m in width as are others in Curd Street, Holland Street and Donaldson Street.
(d) Whilst the proposed building is wider overall than houses in the precinct, the bays facing Donaldson Street are similar in width to many houses in the area and assist in breaking down the scale of the development, resulting in it fitting appropriately with its surrounds and contexts.
(e) Bays include open balconies, vertically proportioned solid walls with punched windows, and vertical and horizontal screening to balconies and windows. The roofs are also broken into three distinct parts, each with a different orientation resulting in the building being broken down into different but complimentary forms, thus minimising the appearance and bulk and relating the scale of the building to houses in the Hillside Precinct.
(f) Other multi-unit developments in the precinct have similar proportions, height and bulk as the proposal so it is not unique to the area.
[64] The height, bulk, scale and design of the proposed development is contrary to the community's reasonable expectations of the Low-medium Density Residential Area.
[65] The Intent of the Low-medium Density Residential Area in City Plan 2000 contemplates 3 storey multi-unit dwellings and land in that Area is located close to public transport networks or centres. The height, scale, bulk and design of the proposal is consistent with that Intent, with the bulk being substantially reduced with steps and setbacks in plan and elevation to create a series of discrete segments. The architecture includes environmental design elements such as horizontal and vertical batten screens and window hoods providing sun protection. The reasonable expectations of community is to be assessed against the fact that the locality contains a mix of multi-unit dwellings and large houses, often 3 storeys in height, which is unsurprising given the proximity to the Brisbane CBD. For the above reasons the proposal comfortably satisfies the reasonable expectations of the community.
[66] The proposal presents as a 4 storey building to Donaldson Street and will be significantly out of character with the immediate locality.
[67] As is evident from the perspective drawing number AO-000[52] the proposal presents to Donaldson Street as a 3 storey building, not a 4 storey building. No point in the building is more than 3 storeys above ground level with the height being 3 storeys above ground level at any point as the building steps down the hill. Level three at the top floor is set back 20.4m from Donaldson Street, it denies a reading of the building as 4 storeys from Donaldson Street.
[68] The proposal conflicts with the Holland Park-Tarragindi District Local Plan, Hillside Character Precinct including Performance Criteria P1, P2 and P3 and does not meet corresponding Acceptable Solutions because it is not compatible with traditional character house scale.
(a) The proposal is in scale and compatible with traditional character houses as its forms are clearly articulated in plan and elevation to create forms at the scale of existing houses. Importantly, to be "compatible" does not mean to be "identical" or "the same". Mr Olsson repeats his earlier statements that the two wider bays facing Donaldson Street being approximately 8m wide (9m with roof eaves) are similar to the widths of many houses in the precinct as outlined above.
(b) Further, articulations give a visual break between the front and middle apartments, namely recessing of the lift lobby from the façade which is glazed and screened. Blade walls are projected on either side of units 3 and 9 to create a clearly expressed 2 storey box.
(c) On the northeast façade a blade wall is projected next to the terrace of units 6 and 12 to visually separate them from units 5 and 11. Similar vertical blades terminate the side balconies of units 5, 11, 4 and 10 to further articulate the side façades so that each 2 storey stack of apartments is expressed as a discrete built form, assisting in relating the proposal to the scale of the existing houses in the area.
(d) The following elements, materials and colours further break down the scale of the building, namely different roof pitches, balcony balustrades, vertical and horizontal slat screening, window hoods, lightweight cladding materials which relate to the existing timber and tin character of traditional houses in the area.
(e) As to the previous house on the site[53] it was a square brick building 19m wide in the same width as the proposal but lacking the benefit of stepped street elevation or lightweight materials to breakdown its overall scale. In contrast the proposal is an attractively designed building compatible with its surrounds.
[70] The proposed building footprint, size, boundary setbacks and siting in relation to adjoining development does not reflect the predominant development pattern and form of development in the area.
(a) the building footprint is broken down into discrete bays as already described.
(b) the setbacks from the front and side boundaries reflect the predominant development pattern and form of development in the area. The setback from Donaldson Street relate to existing house setbacks in Donaldson Street and in the southwest corner the proposed setback from the street is 6m whereas the house on Lot 16 is setback approximately 3m with its garage set back approximately 9m from Donaldson Street. It can be seen then that the proposed setback of 6m is an average of the house and auxiliary garage building setbacks of Lot 16 (Mr Strasser), its primary setback being the house.
(c) The proposed setback of the southeast corner from Donaldson Street is 10.5, the same as the setback of the house on Lot 19 (Appellant Cannife) to Donaldson Street. The proposal makes a transition between the two existing house setbacks by the use of discrete bays in the street façade, already referred to.
(d) As to the setbacks from Holland Street to the houses on Lots 12 (Appellant Hood), 13 (Appellant Alford) and 14[54] (Appellant Nichol) they range from approximately 6m to 10.5m, similar to the setbacks of the proposal to Donaldson Street.
(e) The proposal's side boundary setbacks range in distance from the front to the back of the site. At the front of the site near Donaldson Street the side setbacks relate to existing side setbacks between houses in the area which are generally 1m to 3m. Lots 19 and 20 in Donaldson Street are setback 1m to 2m from side boundaries creating separations between dwellings of 2m to 4m. In Curd Street the side setbacks range from 1m to 2m creating separations between dwellings of 2m to 4m. The proposal has a minimum side setback of 2.2m from the southwest boundary in units 1, 2 and 8 creating a separation of approximately 3.93m between the proposal and the garage on Lot 16. The living rooms and bedrooms of units 1, 2 and 8 have side setbacks of 3m creating a separation to the garage on Lot 16 of approximately 4.38m this being consistent with separations and setbacks in the area.
(f) As to units 7 and 13, they have a minimum side setback of 3m from the north eastern boundary representing a separation of approximately 4.7m between the proposal and the house on Lot 19, again consistent with separation and setbacks in the area. The side setbacks increase further towards the centre of the site in response to the existence of rear yards in existing houses, resulting in setback of 4.5m to the wall and 3.61m to the balcony on units 3 and 9 creating an overall separation distance between the proposal and the rear façade of the house on Lot 14 of approximately 11.4m, sufficient to achieve privacy between the two buildings. Additionally, the master bedroom of units 3 and 9 have a window sill of 1.5m from the floor preventing any potential overlooking of the house or rear yard of Lot 14. The terrace and balconies of those two units are screened in front of the living room windows to avoid overlooking.
(g) The side setbacks of the proposal increase further towards the rear of the site in response again to the existence of rear yards in existing houses. It is setback 5.9m to the wall and 5.1m to the balcony of units 4 and 10, creating an overall separation distance between the proposal and the rear façade of the house on Lot 13 of approximately 14.5m, again sufficient to achieve privacy between the two buildings. Again, bedrooms one and two of units 3 and 9 have a windowsill height of 1.5m from the floor to avoid any potential overlooking of the house or rear yard of Lot 13, and again, the balcony of unit 10 has screening to achieve the same purpose.
(h) As to unit 14 on level 3 the side setback increases at the rear of the block again for the same reasons as outlined above. Setback is 5.9m to the side wall of the living room and 5.1m to the balcony of unit 14 and 9m back to the window wall of the dining room creating overall separation distances between the rear façade of the houses on Lots 13 and 14 and the proposal of approximately 14.5m and 18m respectively, again sufficient to achieve privacy between the buildings.
The side windows to the living room of unit 14 has a windowsill height of 1.5m from the floor, and the dining room window's sill height of 1.3m, avoiding the reality of overlooking the rear yards of Lots 13 and 14. Further, the section of overlooking has been mitigated by the design of the roof form with roof cladding wrapped over unit 14 to create a mansard roof with high level dormer windows, thus reducing the overall visual scale of the proposal and the perception of being overlooked.
(i) On the northeast boundary there is lesser visual impact on Lot 19 compared to Lots 13 and 14 due to the topography which is not as steep in the existing landscape separation which provides a greater buffer on Lot 19. In response to those different conditions the proposed side setbacks with Lot 19 are slightly smaller, though with the same design strategies of screen balconies, windows and high windowsills to avoid overlooking.
(j) The rear bound setback is 5.48m to the rear wall of the proposal and 3.8m to the balcony which are acceptable given that the existing building in Curd Street is an apartment building and there is a substantial landscape buffer at the rear of the site which will be reinforced with further landscaping in the proposal. The existing Curd Street apartment building is setback approximately 16.2m from the rear boundary which when coupled with the proposed setback from the rear boundary to the balcony creates a building separation of 20m, more than sufficient for visual privacy. The proposal's deep soil planting for landscaping will allow substantial screen planting at a range of heights to be achieved.
(k) Screen planting in deep soil is provided to all side and rear boundaries which will place the proposed building in a landscaped setting when viewed from adjoining properties. When coupled with the above mentioned privacy strategies, this landscaping will provide further privacy to the proposal and adjoining buildings and will reflect the landscaped character of the Hillside Precinct.[55]
[72] Proposed development height, scale and proportions are not compatible with traditional character housing when viewed from the visual catchment.
[73] Mr Olsson commences to answer this issue by repeating that, again, for a development to be compatible with traditional character houses it does not have to be identical or the same as those houses. He makes the following points to found his opinion that the proposal is compatible with traditional character houses when viewed from the visual catchment:-
(a) View Figure 1[56] on drawing A2-305 in the Joint Planning Report is a photograph viewing the proposal from the southwest in Donaldson Street and demonstrates that the proposal will be screened by landscape but even if visible from that point would be compatible with its surrounds, given its sympathetic design. View 2[57] shows the proposal would not project through the landscape canopy on the ridgeline. These views demonstrate the compatibility of the proposal with the traditional character houses when viewed from the visual catchment.
(b) Views 1, 2, 3 and 4, and drawing A2-301[58] further demonstrates the compatibility of the proposal with traditional character houses. View 1 is the view from Bindaree Street and shows the existing landscape setting and that the topmost floor is not visible from Bindaree Street because the floor is setback and Bindaree Street falls away from the site towards the southeast. View 2 shows that the proposal is consistent with the skyline silhouette of the house on Lot 16, Donaldson Street. The roof slope to the side boundary and the setback top floor demonstrates its compatibility with neighbouring houses.
(c) View 3 demonstrates how the mansard roof minimises the appearance of bulk at the rear of the site and assists in visually relating the proposal to the existing house forms in Holland Street which it compliments.
(d) View 4 (wrongly marked view 3 on the exhibit) shows that whilst the proposed top floor and mansard roof would be visible without landscaping, the proposed landscaping would screen those features from view.
[74] The proposal is not designed to appear as a series of separate blocks, each of a size and scale similar to that of a traditional character house.
[75] The proposal has been designed to appear as a series of separate blocks, each of a size and scale similar to that of a traditional character house. This has been addressed above in paragraph [69].
[76] The proposal conflicts with the Residential Design Low-medium Density Code including Performance Criteria P1, P4, P12, P13 and P22 and does not meet corresponding Acceptable Solutions because it is not of a size and bulk consistent with the locality.
[77] This has been dealt with above in paragraphs [59] to [62]. The proposal is of a size and bulk consistent with the locality.
[78] The Gross Floor Area of the proposal is far greater than 0.5 times the site area.
[79] Accepting that the proposed GFA is greater than 0.5 times the site area, design strategies employed have resulted in a proposal acceptable in relation to Performance Criteria P1. That conclusion is based on the proposal's acceptable height, being no more than 3 storeys, its short distance from public transport services, with street, side and rear setbacks rendering it compatible with surrounding houses, and potential privacy issues resolved through setbacks, window design, balcony screening and landscape screening resulting in the proposal being compatible with surrounding house forms when viewed from the visual catchment. It is still an acceptable development despite the exceedance of the GFA of 0.5 times the site area.
[80] The proposed building height exceeds 8.5m and 2 storeys.
[81] Whereas the proposal is nominally above 8.5m from natural ground level, its proposed built form is consistent with the low-medium density nature of the locality which contains a number of 3 storey buildings, one being the apartment building at the rear of the side in Curd Street. In contrast to that Curd Street apartment building and other 3 storey brick buildings in the area, the proposal is well articulated and employs lightweight cladding and metal roof materials characteristic of traditional homes in the precinct. It relates well to the topography as it steps down the hill, minimising the appearance of built form when viewed from a distance within the visual catchment. Apart from a small corner of level three and the lift overrun, the building sits below the 9.5m height plane. Those elements exceeding 9.5m are setback well from Donaldson Street and are acceptable within the views from the visual catchment. The proposal complies with Performance Criteria; the size and bulk is to be consistent with the low to medium density nature of the locality.
[82] The front building setback does not complement the setbacks prevailing in the street.
[83] This has been addressed in paragraph [71] above.
[84] Habitable spaces of the proposed development will directly overlook dwellings on the adjacent land.
[85] Potential overlooking of dwellings on adjoining land is avoided by the employment of design strategies such as site setbacks, high level windows, screened windows and balconies and substantial planting of various heights to the side and rear boundaries in deep soil, dealt with above in paragraph [71].
[86] The proposed development will significantly reduce daylight to open space and habitable rooms of adjacent development.
[87] The proposed building retains daylight to the houses and rear yards of Lots 13, 14 and 16 for at least three hours per day between 9am and 3pm on 21 June with marginal overshadowing of the rear yard created at 12 noon by the rear fence of Lots 13, 14 and 16. There is no overshadowing between 12 noon and 3pm. This is an acceptable outcome. There is overshadowing of the rear facades of the houses and rear yards on those lots at 9am on 21 June but there is no overshadowing of these areas at 9am on 21 December. The shadow will progressively diminish at 9am for every month between June and December. This is an acceptable outcome. The side setback of units 3, 4, 9, 10 and 14 of the proposal in the centre of the block is greater than the minimum standard and is intended to minimise the overshadowing of the adjoining properties. The provision of at least three hours of sunlight between 9am and 3pm in midwinter and the progressive reduction of shadow at 9am from June to December is an acceptable outcome. In summary, the outcomes are more than satisfactory.
[88] Waste disposal and collection areas of the proposed development will adversely impact on neighbouring properties.
[89] Refuse storage will be on-site in the basement and bulk bins collected on-site b7. No adverse effects on neighbouring properties will result. The waste collection measures are consistent with multi-unit dwellings standard practice. Furthermore acoustic impacts were assessed and considered acceptable during the development application assessment process and Council has advised that waste and recycling collection can be made from the site.
[90] The proposed development conflicts with Residential Design Character Code including Performance Criteria P1, P2 and P3 and does not meet corresponding Acceptable Solutions because the proposed roof form does not complement the roofing style of pre-1946 houses nearby in the street.
[91] The proposal contains roof and wall materials which complement the pre-1946 buildings in the precinct. The roof and gutters are metal, the range of pitchers from low pitch to steeper pitch. The walls, majority of bedrooms and lift overrun are clad in lightweight cladding and balcony balustrades and walls on the upper levels also have lightweight cladding which will complement the timber and tin materials of nearby houses.
[92] The building height and bulk of the proposed development does not complement the predominant scale of pre-1946 houses nearby in the street.
[93] The building height and bulk of the proposal does complement the pre-1946 houses nearby as set out in paragraphs [60] to [63] above.
[94] The proposed development does not complement the traditional setting of the pre-1946 houses nearby in the street.
[95] The proposal does complement the traditional setting of the pre-1946 houses nearby as set out in paragraphs [61], [63] and [69] above.
[96] The proposed development conflicts with Residential Design Low-medium Density Code including Performance Criteria P1, P4, P12, P13 and P22 and does not meet the corresponding Acceptable Solutions because it is not of a bulk and size consistent with the locality.
[97] The bulk and size is consistent with the locality as set out in paragraphs [61] and [62] above.
[98] Performance Criterion P4 provides that development along ridgelines does not dominate the skyline and must be designed as to contribute to a consistent rhythm and sense of scale along the ridgeline when viewed from the visual catchment.
[99] View 1 and View 2 on drawing A2-305 previously referred to, show context views towards the site. View 1 shows the proposal would be screened by landscaping and viewed from the southwest perspective in Donaldson Street. View 2 shows the proposal would not project through the landscape canopy on the ridgeline, this demonstrates that the proposal would not dominate the skyline when viewed from the visual catchment. Figures 1 to 8 in Mr Olsson's report[59] show that the proposed building would not dominate the skyline when viewed from Curd Street, Holland Street, Donaldson Street and Bindaree Street.
[100] Performance Criterion P6 of the Hillside Character Precinct provides that residential development must be designed to retain or reinforce the landscape character and physical setting of the locality and designed and situated to break up building bulk such that the development appears as a collection of separate buildings uniformly sited on well-treed hillsides or separate buildings consistently placed along major ridgelines.
[101] The proposed building is designed within a landscape setting with vegetation in the Donaldson Street front setback and in deep soil areas to the southwest, northwest and northeast boundaries. The building is broken up by stepping and elevation, previously referred to, to make a highly articulated overall built form. When viewed from Donaldson Street the front façade is broken into three narrow bays stepped to create a smaller scale set of forms. The overall form and length of the building is not visible in its entirely from Curd Street, Holland Street and Donaldson Street with only partial views available which are not dominant in relation to the ridgeline.
4(a) development comprises a mix of low and low-medium rise, low-medium density development
4(d) development provides for co-existence of dwelling houses, dual occupancies or multiple dwellings
5(a) development for a residential building is of a height, bulk, sale and form which is tailored to its specific location and to the characteristics of the site within the low-medium density residential zone and the relevant zone precinct;
(b) development provides for a building that has a building height and bulk that responds to:
(ii) site characteristics including the shape, frontage, size, orientation, slope and nature of adjoin dwellings
(d) development supports sub-tropical character by ensuring that:
(i) the building form, spacing orientation and design ensure dwellings are well designed and sensitive to the city's climate;
(ii) residents on the site, as well as residents of existing and future dwellings on adjoining sites, have sufficient privacy and good access to sufficient daylight, sunlight and breezes to enable the intended use of indoor and outdoor spaces;
(e) development provides quality private and public open spaces and landscaping, including deep planting that softens the scale of the dwellings
[103] The proposal successfully co-exists with existing houses and apartment buildings in the locality, which has been already set out, and includes a mix of 2 and 3 storey multi-unit dwellings and houses.
[104] The 2 or 3 storey mixed zone precinct outcomes include:
a) Development comprises a mix of low-medium rise, low-medium density residential buildings:
(i) Of no more than 2 storeys, or of no more than 3 storeys in height where located within in easy walking distance of a public transport node;
(ii) Located on suitable sites, in accessible locations, near to public transport and larger centres or key destinations.
(b) Development for residential uses are predominantly of dwelling houses, dual occupancy, apartment and row-house style multiple house dwellings.
(c) Development for residential use other than dwelling house is of a scale and bulk that co-exists comfortably with an adjoining dwelling house, even though it might have a bulk and scale greater than a dwelling house.
(d) Development design, height and setbacks provide a sensitive transition at the edge of the site to an adjoining dwelling house or land in a low density zone or zone precinct.
(e) Development for residential use other than for a dwelling house incorporates setbacks and landscaping which contribute to a cohesive and compatible human-scale streetscape.
(f) Development responds to characteristics, such as protection of view corridors, reinforces a green landscape character and responds to the surrounding character and architecture.
[105] See paragraphs [59] and [61] above dealing with City Plan 2000.
[106] Holland Park - Tarragindi Neighbourhood Plan
PO18 Development for residential use achieves height, scale and proportions that are compatible with traditional character houses when viewed from the visual catchment.
PO19 Development is designed, sited and landscaped to minimize the impact of incompatible building bulk.
PO22 Development for residential purposes must be designed to maintain or reinforce the landscape character and physical setting of the locality and designed and situated to break up building bulk such that development appears:
(a) as a collection of separate buildings uniformly sited on well-treed hillsides;
(b) or separate buildings consistently spaced along major ridgelines.
[108] Mr Olsson generally agrees with Mr Buckley's comments as to the existence of sufficient grounds to overcome any conflict with City Plan 2000. He considers that the proposed development would not be out of character with surrounding development, would not result in any unacceptable amenity impacts, results in efficient and well-designed built form and would make a contribution to the overall built form of the locality, especially given the unattractive appearance of a number of other unit developments in the locality.
[109] Concluding his report Mr Olsson expresses the view that the proposed development has been expertly and thoughtfully designed to comfortably sit within its urban context which includes multi-unit developments and houses of comparable height and scale to the proposal. He considers the proposal will provide a superior built form than other buildings in the locality and meets the requirements of both CP2000 and CP2014.
Evidence of Mr Mark Elliott - Architectural Photo Illustrator
[110] Mr Mark Elliott of Mark Elliott Illustrations swore an affidavit in support of the minor change application[60] and gave evidence. He used architectural computer modelling to produce a photo montage, which he described as a photorealistic impression of the development proposal, from two positions in Bindaree Street.[61]
[111] His work also contained photographs of the area including an aerial location photograph.[62] I found Mr Elliott's work very helpful to gain an appreciation of the proposal beyond architectural drawings.
[112] Mr Handley, a director of BA, gave evidence[63] of four developments in proximity to the subject site, three of which being undertaken by BA and an associated company, Mosaic Developments. Those three are:-
(a) 46-48 Latimer Street, Holland Park - approximately 350m from the subject site;
(b) 32-40 Latimer Street, Holland Park - approximately 450m from the subject site; and
(c) 28 Chatsworth Road, Coorparoo - approximately 700m from the subject site.
Properties (a) and (b) are still under construction, and (c) was completed a little under 12 months ago.
[113] The height and plot ratios[64] of each of those buildings is:
[114] At the conclusion of the trial the parties delivered comprehensive written submissions which I shall now deal with.
[115] The Appellants submitted, correctly in my view, that this appeal is essentially concerned with the question of the bulk, scale and form of the proposed development and how it will sit within the area and whether it will offend any of the provisions of CP2000 or CP2014. As to the latter I consider that it is important to consider it given the closeness in time of the lodgement of the development application on 28 March 2014 to the introduction of the 2014 plan on 1 July 2014. In the end result, the experts agree that the local plans under both plans have not changed significantly.
[116] The Appellants' position is that the evidence of Mr Brown should be accepted which would lead to finding that the proposal has a bulk, scale and location conflicting with the LMDR Area under CP2000, the Desired Environmental Outcomes for that area, the LMDR Code in CP2000 and with the Local Plan under CP2000. As to CP2014 the Appellants say bulk, scale and location conflicts with the Low-medium Density Residential Zone Code, the Multiple Dwelling Code and the Holland Park-Tarragindi District Neighbourhood Plan Code.
[117] Consistent with that evidence, the Appellants say that significant adverse impacts upon the character and amenity of the locality, the streetscape, its residence and upon the character of the broader locality will result. This overbearing nature of the proposal constitutes a substantial conflict with both CP2000 and CP2014 and no grounds exist to justify approval given that conflict.
[118] They submit the proposal presents from at least three sides as a 4 storey building and its high density is manifested by the Gross Floor Area (GFA) of 1479m2 on a land area of 1349m2 representing 109% of the site area. This it is said is twice as dense as the intended development in the LMDR Area, referring to Acceptable Solution A1.1 which speaks of a GFA of 50% or 60% in some circumstances as outlined above.
[119] Further, the proposal is substantially more dense than the development on adjoining land and all other developments surrounding it and is inconsistent with the reasonable expectations for development on the site.
[120] The Appellants submit that the evidence supports the following findings:-
(a) As to absolute height the proposal exceeds 8.5m above ground level in significant respects and it has not been established that it does not exceed 9.5m above ground level.
(b) Under both City Plan 2000 and City Plan 2014 the building is partly 3 storeys and partly 4 storeys. The Co-Respondent has not established that it will not present as a 4 storey building.
(c) As to the Locality, the existing character of the built form is predominately 2 storey traditional character housing and that is the intended character of the built form under both City Plans 2000 and 2014.
(d) The proposal conflicts with intent of the LMDR Area under City Plan 2000 because it is not designed to co-exist comfortably with neighbouring houses given its size, bulk and scale and its exceedance of maximum GFA of 50% or 60% which is intended to be strictly adhered to.
(e) It conflicts, the Appellants say, also with Desired Environmental Outcome 1 not being of house-compatible scale and not predominately no more than 2 storeys.
(f) It conflicts also with the intent of the Hillside Character Precinct, not being of compatible building height, bulk or proportion and not retaining or enhancing the hillside character by minimising visual impact in the visual catchment, including public and private locations, near and far, that can view the site and any development upon it. Its presentation is contrary to the community's reasonable expectations for the LMDR Area.
(g) It conflicts with the Local Plan Code for the Hillside Character Precinct and the Performance Criteria P1 and P2 and fails to meet corresponding Acceptable Solutions because of its incompatibility with traditional character house scale. Its proposed footprint size boundary setbacks siting fails to reflect the predominant development pattern form of the area. Its height, scale and proportions are not compatible with traditional character houses when viewed from the visual catchment and its design does not render it appearing as a series of separate blocks, each of a size and scale similar to a traditional character house.
(h) It conflicts with the Residential Design Low-medium Density Code Perform Criteria P1 and P13 given its size and bulk, GFA exceedance, exceedance of 2 storeys and 8.5m in height and the significant reduction in daylight to open space and habitable rooms of adjacent development will cause.
(i) It conflicts with the Residential Design Character Code Performance Criteria P1, P2 and P3 in that its roof form does not compliment roofing styles of pre-1946 houses nearby, its height and bulk does not complement the predominant scale of those house types in the street and does not compliment the traditional setting of those type of houses nearby in the street.
(j) It results in a significant and unreasonable interference with, and impact upon, the amenity of adjoining residents and is beyond what would be reasonably contemplated by residents of the area, having regard to City Plan 2000.
[121] The findings in relation to CP2014 the Appellants contend for, are these:-
(a) There is a conflict with the Purpose of the Low-medium Density Residential Zone Code because the proposal could not be said to form a transition between adjoining developments. On the contrary, it stands out starkly incompatible.
Categorisation of Extent of Conflict with City Plan 2000 and City Plan 2014
[122] The Appellants say that the above identified conflicts are substantial and none of the grounds relied upon by the BA, individually or collectively, would justify approval of the development. I shall deal with this submission further when dealing with the relevant grounds.
[123] The Co-Respondent focused early in its submissions on the true role played by Acceptable Solutions under CP2000 and Acceptable Outcomes under CP2014. It instructive to refer to the authorities relied upon. In SDW Projects Pty Ltd v Gold Coast City Council,[68] when dealing with a planning scheme of similar structure to those under consideration, the Court said:-
"[47] Statements to similar effect can be found in other IPA planning schemes which adopt performance based codes. Performance Criteria are generally outcome focused, while the Acceptable Solutions indicate a 'desirable' way to 'ensure' compliance. The Acceptable Solutions however, are not the only solutions. Performance Criteria Generally ought not be interpreted as requiring adoption of the Acceptable Solution, or even as requiring an alternative solution to be akin to the Acceptable Solution.
[48] It is not legitimate to regard departure from the acceptable solutions as necessarily indicating non-compliance with the Code. In this regard, Acceptable Solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach the acceptable of an alternative solution does not represent 'a relaxation' or a 'dispensation'. It is another way of achieving compliance with the relevant Performance Criterion."
[124] The next authority was K Page Main Beach Pty Ltd v Gold Coast CC,[69] in which height was an issue. The proposal read as a 7 storey building with a partial 8th storey, but under the planning scheme, was technically 10 storeys. The relevant overlay map in the scheme described the maximum building height for the area in which the site was located as 3 storeys. Compliance with that maximum building height was an Acceptable Solution to the Performance Criterion that dealt with height. At first instance, the application was approved, with the trial judge noting[70] that the proposed development which exceeds the designation on the overlay map might (or might not) be acceptable, depending upon the result on impact assessment. The Council sought to appeal but was denied leave,[71] and in the Court of Appeal's judgment, Chief Justice de Jersey, with whom Muir JA agreed, said:-
"[17] It is the substantial disparity between the height of this proposal, and the height specified in the overlay map, which founds the applicant's challenge: the specified height being a 'clear articulate [ion] [of] the desired outcome. Has His Honour misconstrued the Scheme, and thereby erred in law, by approving a development reflecting disparity of this order?
[18] (The developer) submitted there was nothing in the Scheme to warrant a conclusion that the height specified in the overlay map, while still relevant, should be accorded any particular weight in the process of impact assessment, let alone the substantial weight upon which the applicant's approach would appear to pend. The Scheme could have provided, but does not, that in that process the designated height should be given substantial weight.
[20] The approach taken by the applicant verges on presenting the designated height in the overlay map as a controlling constraint rather than as a guide, although the applicant would disclaim such a position. The Scheme could have mandated that position, but has not, and has chosen to leave undefined the extent to which height should feature in the process of impact assessment."
[125] The Co-Respondent relied on three further decisions[72] where applications were approved not withstanding noncompliance with Acceptable Solutions. There can be no doubt that the point made by the Co-Respondent as to the role played by Acceptable Solutions is correct.
[126] The Co-Respondent points to the vigorous assessment undertaken by Council prior to approval. Council issued an Information Request on 6 May 2014[73] calling for a significant redesign to address issues raised. By letter of 13 June 2014[74] the Co-Respondent gave a detailed response. Council, by letter of 22 August 2014,[75] particularised its further concerns about the scale and bulk of the proposal not being consistent with the prevailing development pattern and form in the locality. By letter of 12 September 2014,[76] the Co-Respondent addressed those concerns and advised that the proposal had been revised in the light of them. Council prepared a summary of all submissions which is Annexure A to this judgment. Finally, by letter of 23 October 2014,[77] Council advised of its approval. It has supported the Co-Respondent in this appeal.
[127] The Co-Respondent pointed to authority supporting the proposition that, whereas an appeal of this nature is a rehearing to be determined uninfluenced by the Council's favourable determination, nevertheless, Council's support for the proposal in the appeal is a factor the Court is entitled to take into account.[78] I have so taken it into account.
[128] Performance Criteria P1 to P4 of the Hillside Character Precinct of the Holland Park-Tarragindi District Local Plan Code[79] deal with residential development compatibility, height, scale and proportions minimisation of incompatible building bulk and non-domination of the skyline, all of which are to be assessed when viewed from the visual catchment. That concept is also contained in the Hillside Character Precinct of the Local Plan[80] which speaks of the retention and enhancement of the hillside character through sympathetic development minimising visual impact within its visual catchment.[81]
[129] The Co-Respondent submits that the visual catchment for the site is confined to near views in the immediate vicinity in Donaldson Street, views up Bindaree Street and some limited views from further south in Percival Terrace.[82]
[130] The Co-Respondent pointed to Desired Environmental Outcome 1[83] which recognises that higher densities in 3 storey buildings will occur near multipurpose centres near public transport and along arterial roads. It points to the Greenslopes Mall and Chatswood Road Convenience Centre, both of which, it says, are multipurpose centres which the subject site is near, and to the abundance of public transport on Logan Road.
[131] The Co-Respondent submits that any assessment of the height, bulk and scale of the proposal must be made against the background of the explicit encouragement in both CP2000 and CP2014 of multi-unit development and a proper assessment of the development in the locality around the site, a number of which are similar in height, bulk and scale, including multi-unit dwellings and dwellings 9.5m in height with 3 storeys.[84]
[132] Properly considered, the Co-Respondent says, the locality exhibits a mixed character, including a variety of residents with a number of multiple dwellings, the number of which latter buildings are poorly designed, significant in scale, reflecting no attempt to reduce bulk and failing to orientate to the streets. In proximity to the site there are 14 multi-unit dwellings in the Hillside Precinct acknowledged by Mr Brown[85] as generally boxy in appearance leading Mr Brown to concede that when compared with the proposal "it might be quite good architecturally",[86] although Mr Brown, in the same breath made the point that, in terms of scale the proposal, in many instances it was of a different order to those existing buildings.
[133] Finally on the issue of bulk and scale, the Co-Respondent submitted that the evidence of Mr Buckley, Mr Olsson and Ms Morrissy would be accepted by the Court as persuasive in demonstrating compliance with CP2000 in terms of bulk, height and scale.
[134] The Co-Respondent relies again on the evidence of Mr Buckley and Ms Morrissy[87] to express the view that there is no significant adverse change in the planning policy from CP2000 to CP2014 but point to four changes which, it is said are supportive of the proposal:-
(a) The removal of the Low-medium Density Residential Zone Code in City Plan 2014 and the removal of all reference to GFA as a measure of assessment of the proposal. Mr Buckley[88] said that the use of the GFA as a regulator of design and form of residential land in Brisbane have been almost totally abandoned to the extent that, for 95% of new multiple dwelling development in Brisbane, GFA will be irrelevant. The Co-Respondent argues that that approach properly addresses the question of whether a proposed development will sit comfortably in its surrounds or will cause acceptable amenity impacts which cannot be determined by a single criteria of GFA. Against that background the Co-Respondent argues that no weight should be given to the plot ratio exceedance because the proposal fits comfortably in its surrounds and there are several other developments in the locality with comparable plot ratios.
(b) The Co-Respondent points to the increase in height of multi-unit dwellings under City Plan 2014, rising from 8.5m or less to comply with an Acceptable Solution under City Plan 2000 to 9.5m under City Plan 2014. Indeed under the latter 3 storey buildings of 9.5m or less are code assessable. The present proposal is below 9.5m in all placed except the lift overrun.
(c) Even if the Court was to find that the 9.5m exceedance at the lift overrun constituted a fourth storey, the Co-Respondent submits the finding would have a very limited role in the overall assessment of the merit of the proposal. The proposal is compatible with its surrounds and is a 3 storey building under City Plan 2014.[89] Rather than focusing on the number of storeys, the important consideration according to the Co-Respondent is the total height of the building irrespective of the number of storeys because the former determines any amenity impacts and character matters. Further, irrespective of compliance with any definition in either City Plan 2000 or City Plan 2014 deeming it a fourth storey, it will not present as a fourth storey because the development is only 3 storeys in any one place as the photo montages of Mr Elliot[90] demonstrate.
(d) The third change in City Plan 2014 is the addition of Overall Outcome 7(c)[91] to the 2014 Low-medium Density Residential Zone Code provides:-
"Development for a residential use other than a dwelling house is of a scale and bulk that co-exists comfortably with an adjoining dwelling house, even though it might have a bulk and scale greater than a dwelling house." (my emphasis added)
This provision, it is said, supports approval of the application even if the Court forms the view that the height, bulk and scale of the proposal is greater than nearby dwelling houses.
(e) The fourth change in City Plan 2014 relied upon is s 6.2.1.2(7) of the Zone Code which is in these terms:-
"2 or 3 storey mix zone precinct overall outcomes are:
(a) development comprises a mix of low-medium rise, low-medium density residential buildings:
(i) of ... 3 storeys in height where located within easy walking distance of a public transport node;"
Whilst a public transport node is not defined the Co-Respondent submits that that term would include the Greenslopes Mall Centre.[92]
[135] The Co-Respondents then addressed some issues raised by the Appellants which it says involve errors of principle for the assessment of height, bulk and scale of the proposal. They point firstly to the evidence of Mr Brown in the town planning joint report[93] where he said that the 3 storey multiple dwelling development in the area is, for the most part, development which occurred prior to the 2000 Planning Scheme, comparing the more recent development which he said was generally at a house compatible scale having the appearance of a collection of separate buildings.[94]
[136] The Co-Respondent says that reliance on the fact a development may have been proved under an earlier scheme is not the proper approach but, rather the Court must take into account what is on the ground. In that regard the Co-Respondent referred to The Purcell Family v Gold Coast City Council[95] where the Court said:-
"The development that lends character to this area is there on the ground and there is every indication that it will remain there for some considerable time. To suggest that its influence upon the area's visual amenity should be disregarded because it was approved prior to the planning controls we are considering here is, as I see it, a little unrealistic. To do so would attribute to the area a character which it simply does not have... I believe the development that is place in this particular part of Marine Parade is important because the determinative matter as identified in the Performance Criterion is whether the proposal is in keeping with the predominant residential character of the surrounding area. As I have indicated I am persuaded by the evidence that it would be."[96]
[137] As to any argument that only land with an identical zoning designation could be considered when addressing the compatibility of the proposal with the surrounding locality, the Co-Respondent pointed to Main Beach Progressive Association Inc. v Gold Coast City Council[97] where the Court said:-
"It was submitted on behalf of the Appellants that the assessment of character should take place by reference to that part of the area which is within the same designation on the overlay maps. I do not consider that the assessment is necessarily so confined. PC6 speaks of 'the surrounding area' I am not inclined to read down that language."
[138] As to the Appellants' reliance upon the Intent statement for multi-unit dwellings in the Low-medium Density Residential Area of CP2000[98] which speaks of strict adherence to a maximum GFA of 50%, the Co-Respondent submits that Intents are a guide to the planning scheme but do not carry the same weight as Desirable Environmental Outcomes for the area within which a particular site is located. It follows that limited weight should be given to this Intent provision, which is consistent with an earlier statement[99] where the Court held that such an interpretation:-
"Would visit an inflexibility upon the interpretation of the Plan which is not warranted. City Plan must be read as a whole... a Performance Criterion may be satisfied other than by compliance with the relevant Acceptable Solution. That is what happened here."
Similarly, in KPRA v BCC[100] the Court, in holding that the weight to be given to such an intent is clearly small, said:-
"It cannot be said that existence of any such relevant intent would conclude the question of conflict. If it were found to exist after so many sidelinings (perhaps from the side wind of community expectations), it would be simply a factor in the determination - and it would be a minor one."
[139] In conclusion on the issue of height, bulk and scale the Co-Respondent submits that there is compliance with both CP2000 and CP2014.
[140] In relation to the CP2000 Residential Design - Character Code[101] the Co-Respondent criticises the approach of the Appellants in focusing only on conflict with Performance Criteria P1, P2 and P3 and says that P1 to P7 of those criteria are relevant given that the Code expressly provides[102] that compliance with the Code will be achieved in one of two ways, namely:-
[141] In relation to Performance Criteria P2 to P7 requiring new development to use materials that compliment building materials used in pre-1946 houses and for the height, bulk and setting to compliment pre-1946 houses the Co-Respondent makes three points:-
(a) the requirement for compatibility does not require duplication or replication[103] rather, the provisions seeks to achieve a design of modern buildings sympathetic to older buildings;
(b) assessment of any proposed development requires consideration of the locality as a whole and its mix of residential development including multi-unit dwellings, some poorly designed, larger houses and character housing, against the further background that multi-unit developments are explicitly encouraged in the area under both the 2000 and 2014 Schemes;
(c) finally, the only evidence of an architect was from Mr Olsson and his conclusions, as outlined above, are pointed to and relied upon.
[142] The Co-Respondent submits that the proposal is consistent with the reasonable expectations for the use and development of the site. There will be no offsite amenity impacts and no one has suggested that it would result in unacceptable noise, traffic, odour or other noticeable offsite amenity impacts. As to overshadowing and waste collection, the evidence of Mr Buckley, Mr Olsson and Ms Morrissy adequately addressed those issues. As to rubbish collection any issue can be dealt with by conditions. According to Mr Olsson there would be no unacceptable loss of daylight to adjoining properties.
[143] Reasonable expectations are met because both the 2000 and 2014 Schemes encourage multi-unit development and as the joint report of town planners showed, a range of housing types and sizes are envisaged, higher density housing near centres, public transport and along arterial roads and with residential buildings, larger than houses being anticipated in the area.
[144] Further, it is said, reasonable expectations are met due to the historical use of the land, presently vacant, which until recently contained a house of significant size[104] which, the Co-Respondent says, could hardly be described as visually pleasing, in contrast with the proposal which will be.
[145] Under City Plan 2014 the site could be developed to a height of 9.5m, 2 storeys and be code assessable. The proposal satisfies that height requirement, albeit of 3 storeys. Finally on the question of reasonable expectations the Co-Respondent relies upon the evidence of need relevant to which is the proximity of the site to Greenslopes Mall, Greenslopes Hospital, Logan Road convenience Shopping Centre and Logan Road itself, and nearby parks and schools.
[146] The Council supports the Co-Respondents opposition to the appeal, and while detailed submissions have been received from Council, I see no utility in going through those, given that they accord with, and support, the submissions of the Co-Respondent.
[147] This appeal has brought sharply into focus the challenges to authors of planning schemes in seeking to give appropriate consideration to the past whilst planning for the future. Throughout the various relevant provisions of both plans under consideration one finds concepts of "compatibility", "co-existing comfortably with", "consistent with", "must compliment", "reflect", "sympathetic to" and the like. All of these expressions are consistent with the principles of interpretation of statutory planning schemes later referred to. They connote concepts of compromise and tolerance, rather than inflexibility, which are necessary to balance the multiplicity of interests of members of the various sections of the Brisbane community.
[148] In considering all the evidence I have come to the view that, in the event of a conflict, I prefer the evidence of those expert witnesses called by the Co-Respondent and Council, namely Mr Buckley, Mr Olsson, Mr Elliot and Ms Morrissy to that of Mr Brown.
[149] I consider Mr Brown's comments about 3 storey multi dwelling developments occurring under previous planning schemes to be an incorrect approach to the consideration of the character development of the area.
[150] As to the pattern of development in the area, Mr Brown seems to narrow his focus to those developments since the introduction of City Plan 2000. This is to be seen in his evidence that the locality comprised predominately 2 storey detached houses and multi-unit developments, with 3 storey multi-unit developments for the most part occurring prior to City Plan 2000.[105] The correct approach, as above submitted by the Co-Respondent, is to have regard to what is on the grounds irrespective of the scheme under which any development was approved.
[151] In my view Mr Brown also gave undue weight to the mandatory wording of the Intent of the Low-medium Density Residential Area[106] which speaks of strict adherence to a maximum GFA of 50% or 60% if in close proximity to public transport or on arterial roads. As the authorities relied upon by the Co-Respondent show, that wording is not to be regarded as determinative of any conflict with the planning scheme, but rather is simply a factor to be taken into consideration.
[152] Finally, I refer to Mr Brown's evidence as to the various design elements employed by the Co-Respondent to address the built form of the proposal. Mr Brown acknowledged their existence but whereas all other experts considered them to be positive features in addressing the issue of built form, Mr Brown classified them as superficialities making no difference to the bulk of the proposal. Accepting, of course, that Mr Brown is entitled to his opinion, I considered his peremptory dismissal of any contribution by those design elements as unjustifiably dismissive.
[153] Without diminishing the assistance gained from any of the expert witnesses, I found the evidence of Mr Olsson particularly illuminating and helpful in arriving at my decision. I regard the exercise he undertook to have comprehensively addressed all the concerns raised by the Appellants. I am satisfied that the Co-Respondent has satisfied the onus of establishing that there is no conflict with CP2000 in this proposal. The concern expressed by Mr Buckley and Ms Morrissy as to a possible conflict arising because of the GFA exceedance is not, in my view, a conflict. If it is, it is very minor. Nor do I find any conflict with CP2014.
[154] CP2000 is to be read as a whole, broadly rather than pedantically or narrowly and construed in a way which best achieves its apparent purpose and object.[107] When one accepts that the schemes' references to maximum heights, number of storeys, maximum GFA, setbacks are not imperators determinative of the suitability of the proposal but, rather, only some of the many factors to be considered in the broader consideration of the proposal in its context.
[155] There is no need for me to repeat the various conclusions reached by the experts whose evidence I have preferred. Suffice it to say I accept them as appropriate conclusions supported by the evidence and their respect reasons in support. I consider the proposal is one which will sit very comfortably in the locality, co-existing and compatible with existing development.
[156] Lest I be wrong in finding no conflict with CP2000 I turn now to consider the grounds relied upon by the Co-Respondent on the assumption that a conflict does exist.
[157] Any decision of the Court must not conflict with the planning scheme, CP2000, unless there are sufficient grounds to justify the decision despite the conflict.[108] Conflict means to be "at variance or disagree with"[109] and must be plainly identified.[110] Ground is defined in Schedule 3 to SPA as meaning matters of public interest and not including personal circumstances of an applicant, owner or interested party.
Ground Relied Upon by Co-Respondent in the Event of a Conflict
[158] Mr Buckley articulated these grounds in the joint town planning report and they are set out earlier in this judgment at [27].
[159] As to the ground of need, evidence was led by the Co-Respondent from Mr Duane, an economist,[111] who concluded that there is a strong potential and clear community and economic need for the subject development for a variety of reasons including projected rapid growth of the suburbs around the subject site over the next 20 years resulting in a need for diversity and choice of household product in multi-unit development. Multi-unit development on the site, being an inner city location, will help reinforce a compact form of settlement resulting in improved efficiencies and use of existing infrastructure in the surrounding area. Mr Duane considered the site to be well located to infrastructure, pointing to the importance of the efficient use of infrastructure in growth areas to ensure a sustainable economic return. Finally he concluded that, given the strength of the demand for residential apartments/units in the area, the proposal would not impact on the ability of other sites to be redeveloped for multi-use development in the area.
[160] The grounds relied upon by the Appellants to establish a conflict are set out in paragraph [121] above and essentially the Appellants say the conflicts with the Scheme flow from the following:-
[161] The Appellants say that none of the grounds advanced by the Co-Respondent could justify approval, individually or collectively.
[162] As to need, the Appellant rejects Mr Duane's evidence. In their view he has elevated the potential population forecasts to, in effect, second guess the planning regime, particularly City Plan 2014 which was recently introduced. Further they say that if Mr Duane's argument is correct then it must apply to all land within the Low-Medium Density Residential Area to the intent that all that land needs to be considered for greater intensity of development than that desired by City Plan 2014. In their view the need arguments advanced by Mr Duane amount to no more than a suggestion that the current planning strategies have been overtaken by events or are otherwise inappropriate. Whilst people will buy units in the proposal if it is constructed, the marketability of the finished product does not constitute need in either an economic or planning sense.
[163] Other arguments advanced are all dealt with above in articulating the conflicts identified by the Appellants, except for reference to Southeast Queensland Regional Plan. In the Appellants' view the proposal will not contribute towards the achievement of desirable town planning objectives stated in either City Plan 2000 or City Plan 2014 or the SEAQRP such is the provision of housing choice and diversity, encouragement of housing of this type near public transport, efficient use of land and public infrastructure. To the extent that the proposal might contribute towards achieving Desired Regional Outcome 8 and targets for new dwellings and the same could be said about a multi-unit development on the site with appropriate density and bulk.
[164] Accepting that the proposal may incorporate high quality architectural features is no basis for suggesting that these features make a positive contribution to the character of the locality which could be said about a complying multi-unit development. Finally, they say there is no evidence that the proposal will contribute towards affordability and diversity of housing in the Locality in any significant way and none of the grounds relied upon are sufficient to justify approval despite the conflict with City Plan 2000 given that the proposal also conflicts with City Plan 2014.
[165] If any of the matters raised by the Appellants do constitute a conflict with CP2000, I consider any such conflict would be minor, and that the grounds relied upon by the Co-Respondent are sufficient to approve the proposal notwithstanding any such conflict.
[166] The result of this judgment is that the appeal is dismissed which I so order. I shall hear the parties on any necessary consequential orders.
Residential Areas are the main component of Residential Neighbourhoods in the Strategic Plan.
The general location of the Residential Areas throughout the City is indicated on Map C - Residential Areas. Reference should be made to the Scheme Maps to determine the exact Area Classification of a parcel of land.
The different Residential Areas reflect different living environments envisaged in different parts of the City. Accordingly the scale and intensity of built form will vary between Areas and Council will regulate development through minimum lot sizes for houses, make no provision for the subdivision of existing or approved buildings involving a house, minimum site area and intensity for multi-unit and single unit dwellings and controls on demolition or removal of pre-1946 housing.
An important characteristic of the City's older suburbs is the traditional architecture. Demolition Control Precincts are locations in the older suburbs where pre-1946 housing is still dominant. Specific provisions apply in the Demolition Control Precincts to preserve and complement much of this architectural character, by requiring:
• compliance with the Residential Design - Character Code for new residential development.
Residential Areas will be comprised mainly of dwellings. However, Residential Areas will also accommodate activities servicing local neighbourhood needs, such as shops, child care centres and other community facilities. Incompatible activities such as industry and service stations will be excluded from Residential Areas.
The following DEOs apply to all Residential Areas. Refer also to DEOs for each specific Area.
1. A range of housing types, sizes, tenures and affordability is provided throughout the City to enable residents to remain in their neighbourhood for their entire life if they wish.
3. Housing is predominantly low density, with higher densities in or near Multi-purpose Centres and near public transport.
5. Dwellings have reasonable access to daylight, sunlight and breezes and have privacy.
The Low-medium Density Residential Area will contain a mix of houses up to 2 storeys and 2 and 3 storey multi-unit dwellings and single unit dwellings. Land in this Area is located in those parts of the City that are close to public transport networks or centres.
During the life of this plan, a relatively small proportion of land in this area will be redeveloped for multi-unit residential. New development must therefore be designed to co-exist comfortably with neighbouring houses. This will be reflected in the intensity and scale of development and a strict adherence to a maximum Gross Floor Area of 50%, or 60% if in close proximity of public transport or on arterial roads.
Single unit dwellings are intended to encourage appropriate density and provide increased housing choice within neighbourhoods, whilst minimising impacts to residential amenity. Single unit dwellings also encourage the retention of character houses by allowing their retention on a very small freehold lot and their integration in development sites.
Parts of the Low-medium Density Residential Area are included in the Demolition Control Precincts. At these locations pre-1946 'timber and tin' housing will be retained and new development will reflect pre-1946 architectural character. Where feasible, development in Demolition Control Precincts will incorporate pre-1946 dwellings at the front of the new development.
Building envelopes for houses on small lots are defined so that amenity impacts to nearby dwellings and their private open spaces are minimised, in terms of maintaining access to sunlight, daylight and privacy. The building envelopes also seek to increase safety from fire hazard, maximise private landscaped space for new houses and avoid overbearing development that would occur if the bulk and setbacks of houses were out of scale or character with houses on adjoining lots.
1. Low-medium density living environments comprise houses, among multi-unit and single unit development at a house-compatible scale, predominantly of no more than 2 storeys. Higher densities and 3 storey buildings occur near Multi-purpose Centres, near public transport and along arterial roads.
2. The Area has a mix of housing types and forms at different levels of affordability with adequate safety, privacy, quiet and comfort. New residential developments are well designed and sensitive to the City's climate.
4. In Demolition Control Precincts pre-1946 'timber and tin' buildings are largely retained and new buildings reflect many of the Precinct's architectural themes.
See 5.2.3 - Level of assessment - Low Density Residential Area, Character Residential Area and Low-medium Density Residential Area.
Chapter 4 - Holland Park-Tarragindi District Local Plan
2.1 The locality is to maintain a vibrant, diverse and safe living environment through the provision of a variety of housing types, employment opportunities, and recreational and community facilities.
2.2 A mix of housing densities and types are to be provided to serve the needs of the community, especially the District's young adult and elderly populations. Groupings of pre-1946 character housing will be protected and higher density development in proximity to major employment nodes and public transport will be encouraged.
2.3 New development is to be sympathetic to the existing streetscapes and/or traditional character of the District. Development should contribute to the distinctive and identifiable character and sense of place of both local neighbourhoods and the District as a whole.
2.4 Significant views and vistas are to be protected. Development proposed in visually prominent locations such as major ridgelines and hilltops is designed to achieve minimal visual impact. Development forms that require cut and fill and disturbance of vegetation are to be avoided.
This precinct indicates the presence of steeper residential areas containing traditional character housing and significant ridgelines. Hillside character is derived from the relationship of buildings to their physical setting. Traditional character housing built following an historic subdivision pattern and located on well-treed hillsides results in a unique character of important visual significance in the local context. This hillside character is to be retained and enhanced through sympathetic development that minimises visual impact within its visual catchment.
Residential development in particular, is to provide and/or incorporate:
• the appearance of traditional character houses uniformly spaced and stepped across well-treed hillsides
• construction methods, such as posts or piers, that minimise the amount of alteration to site topography
• design and siting that responds to the physical setting and minimises impacts to existing vegetation and sufficient area between buildings for the provision of trees and landscape requirements.
5 Holland Park-Tarragindi District Local Plan Code
This precinct indicates the presence of steeper residential areas containing traditional character housing and significant ridgelines. Hillside character is derived from the relationship of buildings to their physical setting. Traditional character housing built following an historic subdivision pattern and located on well-treed hillsides results in a unique character of important visual
significance in the local context. This hillside character is to be retained and enhanced through sympathetic development that minimises visual impact within its visual catchment.
Residential development in particular, is to provide and/or incorporate:
• the appearance of traditional character houses uniformly spaced and stepped across well-treed hillsides
• construction methods, such as posts or piers, that minimise the amount of alteration to site topography
• design and siting that responds to the physical setting and minimises impacts to existing vegetation and sufficient area between buildings for the provision of trees and landscape requirements.
Development along major ridgelines in the precinct should contribute to a consistent rhythm and sense of scale along the ridgeline when viewed from the surrounding visual catchment.
with traditional character house scale and designed and sited to retain and reinforce the predominant development pattern and form of:
site area exceeds predominant lot sizes in the area or the site is an amalgamation of allotments
• buildings of a traditional character house scale uniformly spaced and consistently stepped across well treed hillsides when viewed from the visual catchment
A1.1 Building footprint size, boundary setbacks and siting in relation to adjoining development reflects the predominant development pattern and form of development in the area
A1.2 Buildings feature orthogonal plan forms with outside walls aligned to those on adjoining allotments or within the development
proportions must be compatible with traditional character houses when viewed from the visual catchment
A2.1 Large buildings are designed to appear as a series of separate blocks, each of a size and scale similar to that of a traditional character house, using either physical separation and/or:
• significant recesses and projections of the exterior wall plane
• roof geometry incorporating significant variety e.g. pitched roofs of minimum 27.5 degree pitch
• elevational and roof treatment using a variety of materials, colours and finisheS compatible with traditional character houses to achieve the appearance of separate blocks
A2.2 Building heights exceeding the prescribed Acceptable Solution are only possible where:
• use of traditional character elements or site-responsive construction methods has resulted in non-compliance with the
storeys are incorporated into a building form appearing to comply with the prescribed Acceptable Solution e.g. where 2 storey development is prescribed, any third storey is incorporated into a
Note: site-responsive construction methods, such as posts or piers minimise the amount of alteration to site topography. Traditional character elements are pitched roofs of a minimum 27.5
Acceptable Solution is only possible where the development is designed to reduce building bulk in accordance with A2.1
A2.4 Eaves heights reflect the predominant development pattern and form of development in the area:
treatment above ground level without variation, articulation or openings is no more than 10m
dominate the skyline and must be designed and sited to contribute to a consistent rhythm and sense of scale along the ridgeline when viewed from the visual catchment
Landscape character, physical setting and topography
replacement vegetation on the site of advanced size and maturity where significant vegetation is removed
A5 Buildings or other structures, driveways and hardstand areas are designed and sited to maximise the retention of vegetation on the site. Significant vegetation removed as a result of the development is replaced with vegetation of advanced size and maturity that contributes to the special character of the area
Note: trees featuring a trunk diameter width of 250mm or greater measured at 1m above ground level are considered significant vegetation.
Advanced size and maturity is vegetation of 100 litre minimum stock size planted in sufficient quantity to achieve a total canopy area of 50% of
the removed vegetation when mature. Vegetation considered to contribute to the special character of the area is identified in the Holland Park-
Tarragindi District Local Plan Preferred Plant Species List
P6 Residential development must be designed to retain or reinforce the landscape character and physical setting of the locality and designed and situated to break up building bulk such that development appears:
• separate buildings consistently spaced along major ridgelines
A6.1 Communal open space and ground floor private open space required for residential development is provided at a minimum dimension of 5m
• 6m to any adjoining site's front or rear boundary in the case of rear allotments Car parking and manoeuvring areas are located at least 3m from rear boundaries and
the setback is planted to provide a dense landscape screen
Note: in the case of corner lots, the rear boundary is that boundary which abuts other rear
structures, driveways and hardstand areas must be designed and sited to minimise cut and fill disturbance on the site
minimise disturbance to the landscape, such as post and pier type foundations
• slab-on-ground foundations only on those parts of a site with gradients less than 1 in 8 and where no cut and fill is required or cut and fill is minimal
• benching, cut and fill, or construction of retaining walls of a minor nature only and designed so as not to be noticeable after construction has been completed
• driveways and hardstand areas only on those parts of a site with gradients less than 1 in 4
Note: cut and fill is considered to be of a minor nature where fill does not exceed 1m and/or the combined height of any retaining wall and fence does not exceed 2m
A7.2 Retaining walls are set back from any boundary and are stepped or terraced and are landscaped to soften visual impact
Chapter 5 - Residential Design - Low Density, Character and Low-medium Density code
As the Areas to which this Code applies will contain a mix to houses and multi-unit development, the purpose of this Code is to effectively manage impacts of the new development on neighbours while:
• ensuring new development is compatible in scale and design with neighbouring houses
• retaining pre-1946 dwellings or ensuring new development in Demolition Control Precincts is in keeping with pre-1946 architectural themes
• encouraging multi-unit development that provides a pleasant living environment for its occupants
4 Part A - Performance Criteria and Acceptable Solutions
4.3 Multi-unit dwellings in Low-medium Density Residential Areas
P1 Development size and bulk must be consistent with the low to medium density of the locality
• 0.6 times the site area where the site has frontage to a road with a reserve width of 15.5m or more, and:
- any part of the site is within 200m radius of any pedestrian entry to a railway or busway station, or
- any part of the site fronts an arterial route, or
- no part of the site is next to a house (where no approval for a multi-unit or single unit dwelling exists)
5 Part B - General Performance Criteria and Acceptable Solutions for multi-unit dwellings
P1 The appearance of building bulk must be reduced by design elements
A1.3 Services structures and mechanical plant are screened or designed as part of the building
P2 The development must be orientated to the street and facilitate casual surveillance of the street
Note: north or north-east facing windows, balconies or decks may be permitted to provide lesser levels of
privacy than would otherwise be allowed by this Code where this will significantly improve passive solar
A2 Building has large windows or balconies facing the street
P3 Screening and partial enclosure of balconies is limited to provide privacy for neighbours and comfort for residents without resulting in unattractive buildings or an appearance of excessive bulk or restricting opportunities for
A3.1 Screening of balconies is limited to the side and rear boundaries and the sides of balconies between those units where needed to prevent noise and overlooking of other units or dwellings and recreation areas
screened or enclosed by shutters, glazing, louvres, or similar permanent stuctures
is within 20% of the average setback of adjoining buildings
A4.2 In newly developing areas, the setback from a street frontage is a minimum of 3m
established landscape character of the area and accommodate the retention of existing vegetation, including street trees
A5 Established trees are retained where removal is not required to site new buildings
P6 The development must include landscaping that contributes to a pleasant and safe environment and integrates well with the neighbourhood
A6.1 Landscape design allows the overlooking of the street and pedestrian entry areas
• assist safety and surveillance of the street and entry areas
• enable use of private open space abutting the street
A7.1 High solid front fences are avoided so that each dwelling unit can observe the street
A7.3 Solid front fences/walls above 1.2m high are provided only on arterial or suburban routes and:
• living areas can maintain surveillance of the street
frontage where private open space fronts the street
P8 The location, height, extent and materials of retaining walls must be designed to minimise visual impact
A8.1 Combined height of retaining wall and fence does not exceed 2m
boundary and are stepped or terraced, so that landscaping can soften visual impact
communal and private open space for residents needs
A9.1 A minimum 30% of the site is provided as open space each with a minimum dimension of 2m
A9.2 A landscape area of minimum dimension of 2m is provided along the full frontage of any road frontage (excluding crossover and pedestrian access only)
A9.3 For a ground floor dwelling, ground floor private open space is provided with:
A9.4 For a dwelling unit above ground level, private open space is provided as a balcony with a minimum dimension of 3m
P10 Communal open space for clothes drying and common recreation facilities must be provided where a significant proportion of dwellings do
A10 Where more than 25% of dwellings do not have access to ground floor private open space, communal open space for clothes drying and common recreation facilities is provided with at least one continuous area a minimum of 50m2 with a minimum dimension of 4m
P11 Buildings built prior to 1900 must be retained whether in a Demolition Control Precinct or not
A11 Buildings built prior to 1900 are reused, refurbished and retained
P12 Habitable spaces must not directly overlook dwellings on adjacent land
Note: north or north-east facing windows, balconies or decks may be permitted to provide lesser levels of
privacy than would otherwise be allowed by this Code where this will significantly improve passive solar
directly at habitable room windows in an adjacent dwelling within 2m at ground floor level or 9m at levels above ground floor, privacy is protected by:
• achieving the privacy solution shown in Figure e
• where screening of decks is required, it is solid translucent screens, perforated panels, or trellises that are permanent and durable and have a maximum of 25% openings
P13 Development must not significantly reduce daylight to open space and habitable rooms in adjacent development Boundary walls must be limited in dimensions and openings, to minimise the impact on neighbours
A13.1 The side boundary setback, except for a wall built to the boundary, is a minimum of:
• 2m plus 0.5m for every 3m (or part of 3m) over 7.5m height for a wall over 7.5m high
• a maximum height of 3m, unless it abuts a higher existing or simultaneously constructed wall
• a maximum length of 15m where it does not abut an existing boundary wall
Note: where a wall built to the boundary has a height less than 2m measured on the adjacent property, it can extend the full length of the
boundary, less any front or rear boundary setback
Note: minimum setbacks do not apply to eaves and sun shading devices
P14 Development must achieve a pleasant, attractive and manageable living environment Dwellings must receive daylight and allow passage of cooling breezes through habitable rooms
Note: north or north-east facing windows, balconies or decks may be permitted to provide lesser levels of
privacy than would otherwise be allowed by this Code where this will significantly improve passive solar
A14.1 The optimal number of units are orientated to within 20o either side of north
A14.2 Orientation of main living area windows to within 20o either side of north is maximised
A14.3 The majority of private open space has good access to sunlight
A14.4 Window placement and internal layout allows cross-ventilation
P15 Garages, driveways and parking structures must not visually dominate the street frontage Vegetation must soften hard stand areas
A15.1 Carparking is located underground or within a building
A15.2 Vehicle movement areas are broken up by alternative materials, patterns, or threshold treatments. Crossovers are a minimum width of 3.5m
P16 Vehicle access and parking must be safe and convenient for residents, visitors and service providers Resident and visitor parking provision must be
• the availability and acceptability of kerbside parking adjacent to the site
• the likely preference of the occupier or target market
Note: resident parking provision may be reduced from the rate specified in the Acceptable Solution where public transport is available within a reasonable walking distance or where low demand is indicated
• where qualifying for a subsidy for aged persons or persons with disabilities accommodation under any law, 1 car space per 3 dwellings
P17 Vehicle access and parking design and location must minimise impacts on neighbouring dwellings Noise disturbance must be mitigated by parking area location and fencing
• screened to minimise reflection of car headlights onto dwelling windows and attenuate noise
• separated from habitable windows to minimise noise and fumes disturbance
A17.2 Vehicle parking structures are designed and located:
• behind or below the building so they are not visually dominant from a public street - Refer to Figure k
• to be compatible with overall building design in terms of height, roof form, detail, material and colours
• as close as possible to the dwellings to beserved
A17.3 The location of visitor parking is discernible from the street
A17.4 Acoustic screening is provided next to any vehicle movement or vehicle parking areas along the side or rear boundary
A 2m wide vegetated buffer is provided next to any movement or parking areas along the side or rear boundary
P18 Vehicle access to the site and neighbouring sites must not impede the traffic flow on arterial routes
convenient vehicle access to dwellings and the street network
A18.1 The proposal does not use an arterial route for vehicle access to the site
A18.2 Vehicle access is provided to abutting sites that only have frontage to an arterial route, to facilitate access to the abutting site via an alternative street
requirements of the AS4282 - Control of theObtrusive Effects of Outdoor Lighting
P20 Noise from the development must not affect existing or likely future dwellings on adjacent land unreasonably
A20.1 Vehicle movement areas are located a minimum of 3m from any adjoining dwellings, or are provided with acoustic screening to the boundary
A20.2 Any air conditioning plant is located toward the centre of the site
minimum of 3m from adjoining dwellings or provided with acoustic screening
A20.4 The development complies with the Noise Impact Assessment Planning Scheme Policy
P21 Exposure of new dwellings to noise must be minimised
A21.1 Noise impacts on dwellings located within 150m of a Centre, Industry Area, rail corridor, road corridor (suburban routes, motorways and arterial routes) or within a noise exposure of 20ANEF or greater are
mitigated to comply with the requirements of the Noise Impact Assessment Planning Scheme Policy
P22 Waste disposal and collection areas must be unobtrusive, and adverse impacts on neighbouring properties must be mitigated
A22.1 Garbage bin storage and collection areas are located on site and are screened from view
A22.2 For buildings of ten or more units, on-site bin storage:
• is located where it can be accessed by refuse collection services
Chapter 5 - Residential Design - Character Code
This Code only applies to Residential Areas in the Demolition Control Precinct (all Character Residential Areas are included in the Demolition Control Precinct).
This Code will apply in assessing material change of use and/or building work for a house or multi-unit dwelling. Where a Centre Activity on a site in the Demolition Control Precinct, the Centre Design Code (P14/A14.2 and P20/A20 in particular) will be considered in assessing the character of new development, rather than this Code.
• encourage development in Demolition Control Precincts to reflect or strengthen pre-1946 housing character through compatible form, scale, materials and detailing
• in conjunction with the Demolition Code, ensure that precincts of pre-1946 houses are retained and redevelopment in those precincts complements the pre-1946 houses.
P1 Buildings use materials that complement the building materials used predominantly in pre-1946 houses nearby in the Demolition Control Precinct
Buildings have roof forms that complement the roofing styles of pre-1946 houses nearby in the street
A1.1 Buildings use traditional materials consistent with those most commonly used in pre-1946 houses in that part of the Demolition Control Precinct, including sloping roofing with eaves of similar proportions to pre-1946 houses nearby in the street
Additional requirements for sites that contain pre-1946 building/s:
A1.2 Pre-1946 building/s are sited at the front of the site at the street frontage
A1.3 Building/s built prior to 1900 are reused, refurbished and retained
complement the predominant scale of pre-1946 houses nearby in the street
Where the topography is generally flat, the eaves height is within 20% of adjoining eaves heights
Buildings that are taller or wider than the type of building prevalent in the street consist of clearly distinguishable parts similar in scale to existing pre-1946 housing
P3 The building setting must complement the traditional setting of pre-1946 houses nearby in the street
Notes: this traditional setting usually involves a single width driveway and a fairly uniform building line
This Performance Criterion does not apply to rear access lots
Additional requirements for sites that contain pre-1946 building/s:
A3.4 Pre-1946 building/s are located at the front
A3.5 Building/s built prior to 1900 are reused, refurbished and retained
traditional elements of pre-1946 houses nearby in the street
Note: this traditional building form usually comprised a solid core with attached or integrated verandahs
raised above the ground on timber supports. Enclosed areas under houses generally maintained the street
appearance of lightweight supports to upper floors and reflected the layout of upper floor verandahs
A4.2 Different floor levels are distinguished with the use of entries, windows and balconies
A4.3 Where the building is located at the front of the site, living areas, verandahs and
Additional requirements for houses (including small lot houses):
A4.4 The ground floor of the building gives the appearance of a lightweight support to the upper floor and reflects the layout of upper floor verandah or balcony structures
P5 Roof form must reflect traditional roofs in that part of the Demolition Control Precinct
A5.1 Predominant roof forms will include one or more of a combination of pyramids, hips or gables of a similar pitch and proportions to those of pre-1946 houses nearby in the street
stepping levels and roofs is a characteristic of the streetscape, that stepping is maintained
P6 External elements, materials and detailing must reflect pre-1946 architectural themes, and reduce building bulk and form a transition with the external landscape
For houses (including small lot houses) these lightweight materials predominate
reasonably transparent with timber paling or wire
Table 7.2.8.1.3.A - Criteria for assessable development
Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:
(a) consistent with the anticipated density and assumed infrastructure demand;
(b) aligned to community expectations about the number of storeys to be built;
(c) proportionate to and commensurate with the utility of the site area and frontage width;
(d) designed to avoid a significant and undue adverse amenity impact to adjoining development;
(e) sited to enable existing and future buildings to be well-separated from each other and to avoid affecting the potential development of an adjoining site.
Note - Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.
Note - Development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.
Development complies with the number of storeys and building height in Table 7.2.8.1.3.B.
Note - Neighbourhood plans will mostly specify a maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.
(4) Development location and uses overall outcomes are:
(a) Development comprises a mix of low and low-medium rise, low-medium density residential development.
(d) Development provides for co-existence of a dwelling houses, dual occupancies or multiple dwellings.
(a) Development for a residential building is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Low-medium density residential zone and the relevant zone precinct.
(b) Development provides for a building to have a building height and bulk that responds to:
(ii) site characteristics, including the shape, frontage, size, orientation, slope, and nature of adjoining dwellings.
(d) Development supports a subtropical character by ensuring that:
(i) the building form, spacing, orientation and design ensure dwellings are well designed and sensitive to the city's climate;
(ii) residents on the site, as well as residents of existing or future dwellings on adjoining sites, have sufficient privacy and good access to daylight, sunlight and breezes to enable the intended use of indoor and outdoor spaces.
(e) Development provides quality private and public open spaces and landscaping, including deep planting that softens the scale of the dwellings, provides spaces for outdoor activity areas and encourages outdoor living."
(7) 2 or 3 storey mix zone precinct overall outcomes are:
(a) Development comprises a mix of low-medium rise, low-medium density residential buildings:
(i) of no more than 2 storeys, or of no more than 3 storeys in height where located within easy walking distance of a public transport node;
(ii) located on suitable sites, in accessible locations, near to public transport and larger centres or key destinations.
(b) Development for residential uses are predominantly a mix of dwelling houses, dual occupancy, apartment and row-house style multiple dwellings.
(c) Development for a residential use other than a dwelling house is of a scale and bulk that co-exists comfortably with an adjoining dwelling house, even though it might have a bulk and scale greater than a dwelling house.
(d) Development design, height and setbacks provide a sensitive transition at the edge of the site to an adjoining dwelling house or land in a lower density zone or zone precinct.
(e) Development for a residential use other than for a dwelling house incorporates setbacks and landscaping which contribute to a cohesive and compatible human-scale streetscape.
(f) Development responds to local characteristics, such as protection of view corridors, reinforces a green landscape character and responds to the surrounding character and architecture.
Development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to:
(b) significant infrastructure or service constraints such as tunnels;
(c) existing and proposed building heights in the local area and street;
(d) adjoining buildings and separation of buildings necessary to ensure impacts on residential amenity and privacy are minimised;
Development is contained within the building envelope for the site created by applying:
(a) the maximum building height in Table 9.3.14.3.B;
(b) front, rear and side boundary setback requirements in Table 9.3.14.3.C;
(c) car parking boundary setback requirements in Table 9.3.14.3.E;
(d) building separation requirements in Table 9.3.14.3.F;
(e) acceptable outcomes for building height transitions where required.
Note - This acceptable outcome can be demonstrated by the preparation of a building envelope plan, elevations and sections.
Development has a building height that is consistent with the streetscape local context and intent for the area having regard to:
(a) proximity to high-frequency public transport services;
(b) the predominant height of existing or approved buildings in the street;
(c) providing appropriate separation and a sensitive transition between houses and higher scale building forms;
(g) solar access to key public spaces and adjoining buildings.
Development has a maximum building height that complies with:
(b) if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.B.
Development in the 2 or 3 storey mix zone precinct of the Low-medium density residential zone where adjoining a lot containing a dwelling house (where no approval for development other than a dwelling house exists) has a building height within 10m of the common boundary that does not exceed 9.5m or 2 storeys.
Development separates buildings from existing or future buildings within a site or on an adjoining site to:
(a) be consistent with the form and character intent for the local area;
(b) protect residential amenity including access to natural light, sunlight and breeze;
(c) provide visual privacy to reduce the need for fix screening.
(a) minimises the impact of development on the amenity and privacy of neighbouring existing residents;
(b) contributes to the rhythm and pattern of the streetscape in keeping with the intended neighbourhood character;
(c) provides for natural light, sunlight and breezes;
Development provides building placement and design that:
(b) positions the primary balcony or private open space to face the street frontage or rear boundary or adjoining public open space;
(c) offsets balconies or habitable rooms so that they are positioned outside the cone
of vision of existing or approved habitable rooms or outdoor spaces.
Note - This is demonstrated by a site context plan that includes adjoining and adjacent buildings and strategies to address separation issues.
Note - Considered site planning and design and strategies such as offsetting balconies, the location of private space, selective screening or other design elements can reduce building separation requirements.
Development with a secondary private open space or balcony used for drying or services is located to the side boundary with fixed screens.
Development provides a side boundary setback that complies with:
(b) if no neighbourhood plan applies or no requirements are specified in the neighbourhood plan, the requirements set out in Table 9.3.14.3.C.
Table 9.3.14.3.B - Site requirements and building height for a multiple dwelling, retirement facility or short-term accommodation
[2] Exhibit 32, p 2; affidavit of Mr C Buckley paragraph 9.
[11] Exhibit 17 (13/4/2015) and Exhibit 7 (14/4/2015) respectively.
[15] Exhibit 3, volume 1, tabs 9 and 10 shows that Council issued a detailed Information Request of 6 May 2014 calling for a significant redesign. Further, by letter of 22 August 2014 Council still considered the scale and bulk not consistent with the prevailing development pattern and form of the locality. Only after all issues were addressed did the approval issue.
[20] Ibid p 69. See also T-5.46.20-25; T-5.73.45-46; T-5.74.7-40.
[21] Ibid p 59. See also T-5.48.30-37; T-5.75.15-40.
[40] Exhibit 32; Exhibit 5 p 6, Table figure 1: Proposal Plans Subject of Minor Change Order.
[44] See also plan number A2-100. Exhibit 32 p 18.
[47] Appellant Colleen Canniffe - Exhibit 2 p 4.
[48] Appellant Sarah Graham - Exhibit 2 p 4.
[49] Louise Strasser - Exhibit 2 pp 4 and 9 - originally an Appellant.
[50] Exhibit 6 - photographs of the previous house.
[55] See Exhibit 3(1) P 211 for Revised/Final Landscape Concept Plan.
[61] Ibid pp 50 and 52; see also Exhibit 31, book of amended plans and photo montages, pp 18 and 21.
[63] Affidavit 14 April 2015 - Exhibit 10.
[64] Ratio of the Gross Floor Area of the building on the site to the area of the site. City Plan 2000 definition, chapter 3, p 72.
Alford & Ors
Brisbane City Council & Anor [2015] QPEC 54
(1973) 133 CLR 242