Caltabiano & Ors v Brisbane City Council & Australand Holdings Ltd [2004] QPEC 36

[3] On 9 October 2003 Council approved a proposal for the land involving the construction of 100 detached and semi-detached two and three level townhouses, and three medium rise multi-unit dwellings on the Carindale Street side of the development parcel containing (from north to south) seven, six and five residential levels respectively, and carparking. It is these higher buildings which have attracted most attention from the remaining, and previous appellants. By the time of trial the issues had contracted to:

(a) town planning issues concerning, in particular, the height, bulk and scale of the medium rise buildings;

(b) amenity issues including visual effects, noise, light and air quality;

(c) traffic issues generally, but specially concerning the intersections of Surbiton Court and Winstanley Street, and Winstanley and Dorrington Streets;

(d) stormwater, and whether the co-respondent's proposals constituted "best practice".

[4] On the first day of the hearing I was taken on an inspection of the site, and to many streets in the surrounding suburbs and, in particular, to places represented in photographs which became exhibits[2].

(a) a Development Permit for a Material Change of Use for Multi-Unit Dwellings across most of the site apart from a section along Carindale Street. Those dwellings are generally of two storeys, with some having three, and they feature a range of designs and variations;

(c) preliminary approval for the material change of use for multi-unit dwellings on the land along Carindale Street, which sets the building location and height envelope at five, six and seven storeys; and,

(d) preliminary approval for filling and excavation across that part of the site subject to the Development Permit for Material Change of Use.

[6] Some minor changes have been affected to the plans since these appeals were lodged[3] but they were not the subject of any attack in these proceedings. Indeed, I did not understand the appellants to have any strong objection to the development per se, save the proposed larger buildings on Carindale Street.

[7] City Plan contains four components relevant to matters in this appeal:

(a) the Strategic Plan, which is itself divided into three main components: the Vision, which expresses a broad philosophical basis for the City's future development; Desired Environmental Outcomes (DEOs), and Strategies for the City, defining broad policy directions; and, Elements of the City which outline the broad land use structure;

(b) area and assessment processes, which identify measures affecting the regulation of development and attempt to define the ultimate condition of individual areas, and contain levels of assessment required for different types of development in each area;

(c) the Carindale Major Centre Local Plan, which contains detailed guidance on the preferred development outcomes in a particular locality (and overrides other provisions of the Plan if conflict arises); and

(d) Code provisions including, relevantly and in particular here, the Residential Design - Medium Density Code which contains technical provisions applying to different areas, or types of development.

[8] Both the DEOs and the Vision emphasise the importance of a variety of housing densities which will help reduce urban sprawl and reduce dependency on[4] high density residential locations[5]; and, in the context of Carindale as one of only seven "major centres" in Brisbane, an integrated design and function both within the centre, and between it and its surroundings[6].

[9] Relevantly, Carindale shopping centre contains a large bus terminal at the lower level on Carindale Street, almost opposite the proposed development, and the DEO encourages higher density housing in centres with good public transport of this kind[7].

[10] City Plan describes Carindale as a "major multi-purpose centre area", ie an area in which higher density residential development is encouraged in a way which "integrates and enhances the fabric of the centre". The intent for these centres is identified in their respective local Plans, and the DEO for each of them re-states this desire, promoting "high densities of residential development ... to capitalise on public transport infrastructure investment"[8].

[11] The area classification, however, puts the relevant land in the Medium Density Residential Area. Carinya, immediately to the north, is also included in that area while the balance of the Carindale Centre is included in the Multi-purpose Centre category. To the east, the parkland corridor along Bulimba Creek is in the Parkland Area while detached residential areas still further to the east, and the south, are in the Residential Low Density Area.

[12] Chapter 3, s 5.5 sets out the intent and desired environmental outcomes for the Medium Density Residential Area as follows:

Medium density residential areas are located in near city locations with good access to public transport and centres. Medium density residential areas will accommodate multi unit development up to five storeys. (my emphasis)

Under s 5.5.2 "medium density living environments predominantly comprise medium rise, medium density buildings of no more than five storeys".

[13] The site is located within the Carindale Major Centre Local Plan boundary and falls within the Centre Residential Precinct, which includes Carinya. The Residential Precinct is "to be developed for medium density residential uses to take advantage of its location close to various centre activities and public transport facilities." Development principles relevant to the site (and the proposed development) include:

2.2 The centre is to contain a range of functions that complement one

another and combine to create an integrated mixed use centre, with

strong retail, office, residential, community and entertainment uses, and

2.5

The centre is to provide a high level of urban amenity, and feature

landscaped buildings and streetscapes. Quality architectural treatments and landscaping are to reduce the centre's impact on surrounding residential areas and also improve pedestrian comfort.

[14] Chapter 4, s 5 of City Plan identifies Code provisions relevant to the residential precinct in the Carindale Major Centre. The Code touches height and density in relation to each of the three Centre Precincts. In the context of gross floor area it provides that building size and bulk must be "consistent with the highly urban character of a major centre core". As to building height, it requires that building size must be "consistent with the Precinct's highly urban character" and maximum building height must not exceed "34 m AHD or 10 storeys, whichever is the lesser". Section 5.3 contains supplementary performance criteria relating to building height and, relevantly here, provides:

P2 Building height - building size must be consistent with the Precinct's role as a transition area between the centre core and surrounding residential areas.

A2 Building height within 20 m of Winstanley Street does not exceed three storeys. (my emphasis)

[15] As the evidence fell out at the hearing and as each of the appellants conducted his case (including final written and oral submissions) it is apparent the issues in dispute have contracted further: the primary issue becomes whether the development complies with the relevant provisions of City Plan and, in particular, whether the larger buildings on Carindale Street may exceed five stories. Questions of visual amenity are associated with that issue. Traffic issues also remained a vivid concern, particularly with Mr Millar, and Mr Hohnen. Other amenity issues - noise, light and air quality - appeared to pale as matters in dispute, and the question of storm water management effectively disappeared.

[16] The evidence of a senior hydraulic and environmental engineer, Mr Martin Giles[9], which was essentially untested, clearly established that the co-respondents' proposals for storm water management systems on the site, and disposal into Bulimba Creek, were acceptable and reflected best practice. His evidence is persuasive that the issue should be resolved in the co-respondents' favour.

[17] The same conclusion attaches to evidence from a senior engineer, Mr Paul King, concerning the amenity issues of noise, lighting and air quality[10]. Again, his evidence seemed to be implicitly accepted by the appellants. I accept his conclusions that noise levels from persons living in, or traffic associated with the development will not adversely impact either the Carindale Centre or surrounding residential areas in an adverse way; similarly, lighting associated with the development or surrounding streets will have no adverse impact; and, the propesed higher buildings on Carindale Street would not cause a "canyon" effect between them and the shopping centre on the opposite side which would impede air flow patterns in or around that street, or result in adverse disposition of exhaust emissions.

[18] As to traffic, Mr Millar was particularly concerned about the intersection of Surbiton Court (on the eastern side of the proposed development, running approximately parallel to Bulimba Creek) and Winstanley Street, to the south. He presented a video recording he had made himself, with a lively commentary, of traffic at that intersection around the morning peak hour. Mr Hohnen was concerned by the prospect of excessive parking in Winstanley Street, particularly on days when buses leave directly from the Transit Centre for major sporting events elsewhere in Brisbane; and, traffic on Winstanley Street generally and at the intersection of Winstanley Street and Donnington Street, which intersects with Winstanley Street from the south.

[19] No expert was called about traffic by the appellants but Mr Holland and Mr Beard, both very experienced traffic engineers, gave evidence for the respondent and co-respondent and each concluded that, apart from some minor issues which could readily be solved by adjustment to road layout and markings, and signage and the like, there were no traffic grounds adverse to the development, warranting its refusal. In particular, they addressed and satisfactorily allayed any concerns about matters concerning pedestrian and traffic movement and parking in Carindale and Winstanley Streets[11].

[20] They were also of the view that increases in the usage of Surbiton Court and Winstanley Street (including its intersection with Donnington Street) could be satisfactorily managed within the present road layout, with acceptable degrees of saturation and queuing. Both saw Mr Millar's video of the Surbiton/Winstanley intersection and concluded that it affirmed rather than contradicted their conclusions. That was an opinion readily acceptable to the lay observer, too; and their evidence otherwise persuades me the issue of traffic should be determined in the co-respondents' favour.

[21] Under City Plan, the Carindale major centre is to be the primary centre serving the eastern sector of Brisbane. It extends for approximately 600 metres in a north-south direction, and covers an area of approximately 24.3 hectares. Its main focus is the Westfield Carindale Shopping Centre, the largest in Brisbane outside the City centre, containing a range of large department stores and 261 other specialty shops and retailers, and a cinema complex. The highest part of the shopping centre, the upper parapet of the cinema complex, is at RL41 metres. That part of the complex is slightly to the north of the northern edge of the development parcel adjacent to Carindale Street, opposite the proposed apartment buildings. To the south and also on the opposite side of that street are multi level car parks rising to RL27.5 metres.

[22] The shopping centre, cinema complex and car parks dominate the landscape for a considerable distance, particularly to the east and north. During the inspection I was taken to places in a number of suburban streets on the eastern slopes rising from Bulimba Creek, and views from all of them affirmed impressions from photographic evidence that the shopping centre is, as Mr Vann, a town planner, described it: "an extremely large structure containing a jumble of components of varying heights and appearance, which combine to make it both dominant and intrusive".[12] Another experienced town planner, Mr Humphreys, described the centre in similar terms, which I also adopt:

These photographs demonstrate the bulkiness and prominence of the existing shopping centre within these vistas. The protruding nature of the shopping centre is exacerbated by the presence of surrounding low-density residential development, which characterises this part of Carindale. The experience surveyed by most residents in surrounding streets, is that of a limited view to the site particularly obstructed by vegetation and topographical aspects.

[23] The appellants suggested that the view of the car parks from the east was not unpleasant, their rather stark structural features being ameliorated by vegetation planted along Carindale and Winstanley Streets but, although an aesthetic judgment is involved, that conclusion was not borne out on the inspection, which was of particular assistance. So, too, were photographs and conceptual analyses and photo montages prepared by an architect, Mr Powe[13] and Mr Gamble, a landscape architect[14]. Mr Humphreys[15] and Mr Vann[16] both concluded the medium rise apartment buildings immediately opposite the commercial centre on Carindale Street would block out relatively unattractive views to the centre from the south and east (Mr Humphreys) and screen its unattractive façade (Mr Vann).

[24] Questions of visual amenity are inherently subjective and can be nebulous[17] but the overwhelming impression here, confirmed by the lengthy inspection and the very helpful photo montages showing a visual projection of the proposed buildings and their effect in the "view shed" to the east is one of improvement, by a masking of the relatively blank, uninteresting and monolithic character of the commercial centre; and I am persuaded the issue of visual amenity is something which tells quite strongly for, rather than against, the co-respondents' proposed development in its present form.

[25] Mr Caltabiano is a Brisbane City Councillor and conducted his appeal in a thoughtful and intelligent fashion which placed particular emphasis on the reference to five storeys in the "Intent" section for the Medium Density Residential (MDR) area set out in City Plan, Chapter 3. He argued the reference to "up to" five storeys meant that, on a proper construction of these parts of City Plan, the planning scheme imposed, or powerfully suggested, a height limit which should not be exceeded.

[26] In the course of his submissions Mr Caltabiano also argued that the co-respondents' landscape architect, Mr Gamble, had concurred with the proposition that buildings lower than six and seven, or even five storeys along Carindale Street would provide a "better vista" but even a cursory reading of the question to Mr Gamble from Mr Caltabiano which gave rise to the answer upon which the he relies[18] shows that the witness was simply agreeing that sketches and photo montages were only examples or exploratory designs, and nothing more. In short, I agree with the submission of Mr Gore QC that no benefit flows to the appellants from this part of Mr Gamble's evidence[19].

[27] Mr Caltabiano also sought comfort from the parts of City Plan Chapter 4 s.5 which address height and density in each of the three centre precincts, and the reference to building height not exceeding 34 metres AHD or 10 storeys, whichever is the lesser. He contended that the fact the proposed five, six and seven storey buildings would reach 34, 38 and 41 metres AHD meant the northern most building (where ground level is at 14 metres AHD) would exceed the MDR code[20] by a proportion of 80%. Properly calculated the figure is less and, in any event, irrelevant, because the co-respondents' proposal does not seek to reach anything like 41 metres AHD.

[28] Further, the reference to 34 metres AHD in the Centre Core Precinct is, plainly, an historical mistake. It is carried over from the 1987 Town Plan and could not have been intended, for obvious reasons: first, because the lowest part of the shopping centre is about RL10, there would be no occasion on which 10 storeys would be possible so the reference to that number of storeys is superfluous; secondly, compliance would create an oddity in the Centre Fringe Precinct where the building height might reach eight storeys under an exceptional solution but at the northern end of the Centre Core Precinct, be limited to six storeys; and, thirdly, there was power to relax the limit of 34 metres AHD under the 1987 Town Plan[21] and it is not sensible now to couple the 34 metres AHD with an impossible, greater height rather than a relaxation power for that greater height.

[29] There was also debate concerning the supplementary performance criteria in s.5.3 at A2, limiting building height within 20 metres of Winstanley Street to three storeys. The evidence left it unclear whether or not the southern most of the three higher buildings, of five storeys, encroached upon this 20 metre limit. Mr Humphreys was adamant it did not[22] and Mr Vann said[23]:

The preliminary approval envisages buildings up to five storeys in Apartment Zone 3, which is within 20 metres of the roundabout at the intersection of Carindale and Winstanley Streets. To the extent that this roundabout is considered part of Winstanley Street, this aspect of the proposal is not consistent with this acceptable solution. However, this is considered to be a technicality rather than a substantive point. The overall development involves buildings of only two storeys along Winstanley Street and these extend more than 20 metres from that street. Proposed Apartment Zone 3 fronts Carindale Street and is further away from existing houses on the south side of Winstanley Street than the northern extent of these two storey buildings along Winstanley Street. It is considered that this built form outcome would achieve a transition sought by the local plan.

[30] Even if it is assumed the southern apartment building lies within 20 metres of Winstanley Street (and I do not think that is a safe assumption) the conflict is, as Mr Vann concludes and I accept, no more than a technical breach in the sense that non-compliance is not a matter of great moment in regard to the planning scheme. Should it be necessary to determine whether, despite that conflict, sufficient planning grounds nevertheless exist to justify approval of that part of the development, I am satisfied strong grounds are available to the co-respondent, manifested in these reasons in respect of the amenity issues and, in what now follows in what I perceive to be strong support for a development of this kind in City Plan.

[31] Planning schemes like City Plan are not documents which ordinarily attract, or easily admit, strict construction. The principles have recently be collated by Britton SC, DCJ in Westfield Management Ltd v. Pine Rivers Shire Council[24], and include the propositions that the planning documents should be construed broadly and with a sensible, practical approach rather than pedantically or narrowly; as a whole; and, importantly here, in a way which best achieves their apparent purposes and objects.

[32] There are clear indicia that City Plan does not fix five storeys as the maximum building height above ground level for this site. Two different analyses support this conclusion, and were advanced separately by the town planners Mr Vann, and Mr Humphreys. This court is entitled, but not obliged to accept uncontradicted expert evidence[25] but in the absence of concrete adverse evidence will not lightly disregard the views of both these witnesses, each of whom has a wealth of experience as a town planner and whose reports have previously aided this court on many occasions. That is not to say their views have been accepted without further consideration, because they involve the construction and interpretation of legal documents as much as town planning issues; but, rather, I am persuaded that the experts' reading of City Plan patently accords with a reasonable analysis of the relevant parts of it.

[33] First, as Mr Vann said, under the general MDR Code the limit of five storeys is contained in an "acceptable solution": A2.3[26]. Those acceptable solutions represent, however, only one way of complying with the performance criterion[27] and it must therefore follow that the five storey limit is not immutable. Secondly, the reference to five storeys in the DEO for the MDR area[28] is, again, not determinative. The DEO says, only, that MDR living environments will "predominantly" comprise buildings of no more than five storeys, leaving open the possibility of occasional excess; and, the reference in P2 to the "intentions for the Area" must refer to the particular part of the MRD area in question and require, then, an analysis of the proposal with reference to this particular site.

[34] As Mr Gore QC said in his oral submissions[29]:

And in this particular case this medium density residential area is opposite a large bulky commercial building different from - we can say with confidence, different from any other particular site in the city. There might be other MDR sites which are adjacent to a major centre, be it Indooroopilly or Toowong ... but it will then be a different structure ... and the particular circumstances of that site won't duplicate the circumstances ... across Carindale Street from the subject site. And it is those very particular circumstances which justify the conclusion that the two planners have that these particular residential buildings satisfy the performance criterion.

[35] In the alternative, as Mr Humphreys approached the matter the Carindale Local Plan Code takes precedence over the general MDR Code[30] and contains precinct-specific height criteria and acceptable solutions for each of the three precincts in the local plan[31]. As he pointed out each of the criteria and the acceptable solutions descend through the three precincts, but the provisions relating to the centre residential precinct specifically avoid a numerical building height for the entire precinct (save for the reference to height within 20 metres of Winstanley Street).

[36] It is also relevant that the general MDR Code becomes nothing more than an acceptable solution for Criterion B1 (and is not, in fact, mentioned at all in P2). As Mr Vann observed, in an interesting aside, a close analysis of these provisions suggest that the specific height requirements for the Centre Residential Precinct may simply be met by a developer who does nothing more than satisfy Acceptable Solution A2 (ie, limiting building height within 20 metres of Winstanley Street) and otherwise building heights across the balance of the site are, apparently, unrestrained.

[37] Both methods of analysing City Plan vis a vis this development proposal traverse sections of the Scheme which are relevant to the issues in this appeal and, I am satisfied, show that on a proper analysis the five storey height limit contended for by the appellants does not prevail, and ought not be imposed.

[38] The only remaining issue concerns the word "transition" in P2, requiring building size to be consonant with a "transition area" between the Centre Core and the surrounding residential areas. All the appellants and Mr Hohnen in particular were concerned that the proposed higher buildings along Carindale Street which abutted, to the east, much lower buildings on the balance of the development site were not "transitional" within the true meaning of that word which, rather, should be construed in a way which suggested a more progressive, and less abrupt drop in height from, as I understood the questions and submissions, the highest peak of the shopping centre down to the ground level surrounding Bulimba Creek.

[39] That is not an unsurprising contention, but the photo montages which were intended to give an approximate visual impression of the likely effect of the proposed buildings did not jar in the sense the change from higher to lower buildings appeared to be too abrupt. Rather, I agreed with Mr Vann who said[32]:

These buildings have the effect of maximising site density closest to the major centre facilities and bus interchange, while allowing development on the balance of the site which is of a height and scale to provide an appropriate transition to surrounding low density residential areas.

[40] Mr Humphreys put the matter in slightly different, but also readily acceptable terms in his oral evidence[33]:

... It's a relatively thin element at the end of this rather massive commercial building, and then it goes down into a lower rise form of residential development. So it's a sharp edge if you like which then grades into a continuous area of residential development which achieves a scale at its edges comparable with that of the surrounding residential areas and a comfortable relationship with the Bulimba Creek catchment. It's character is going to be more articulated and pleasant in appearance than what is on the western side of Carindale Street and in that respect it is going to be a suitable transition from what is really a pretty unsightly and massive commercial complex to an area where a higher value is placed on visual amenity and pleasantness of place. So that's the way I am looking at the question of whether or not a suitable transition has been created between the Centre Core and the surrounding residential areas and the height is really quite suitable in achieving that transition. It's closer to the higher elements of the centre and lower closest to the low density residential area south of Winstanley Street. It's not an overwhelming urban form.

[1] 3978, 4016, 4018, 4019, 4020, 4021, 4022 and 4068 of 2003

[2] A key to the sites and photographs from them is contained in Exhibit 3B, Appendices to the report of Mr Gamble, architect

[3] Particulars are set out in the report of Mr Vann, town planner, Exhibit 10 page 4 para 3.0

[11] Mr Holland, Exhibit 5; Mr Beard, Exhibit 11

[17] Broad v. Brisbane City Council (1986) 59 LGRA 296 per Thomas J at 299, de Jersey J at 305.

[21] Exhibit 15, p.10-80, s.10.3.4.2(e)

[25] Makita (Australia) Pty Ltd v. Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 730; and generally Cross on Evidence (Australian. Ed) at para. [29075].