Kangaroo Point Residents Association Inc v Brisbane City Council & Anor [2014] QPEC 64

Planning and Environment Court of Queensland|2014-11-19|Before: Property Group P

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Hunter & Ors v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655

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K Page Main Beach Pty Ltd v Gold Coast City Council & Ors [2011] QPELR 406

Lockyer Valley Regional Council v Westlink Pty Ltd [2012] QCA 370; [2013] 2 Qd R 302

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Main Beach Progress Association Inc v Gold Coast City Council [2008] QPEC 37; [2008] QPELR 675

R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22

Robinson v Brisbane City Council & Anor [1987] QPLR 71

Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515

Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242

SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24

Skateway Pty Ltd v Brisbane City Council [1980] QPLR 245

Stockland Development Pty Ltd v Townsville City Council & Ors (2013) 195 LGERA 317

The Purcell Family v Gold Coast City Council [2004] QPEC 9; [2004] QPELR 521

WBQH Developments Pty Ltd v Gold Coast City Council & Anor [2010] QCA 126

Weightman v Gold Coast City Council [2002] QCA 234; [2003] 2 Qd R 441

Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272

Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82

Brisbane City Council Legal Practice for the Respondent

[1] This is a submitter appeal filed 17 January 2014, meaning that the incorporated appellant ("Association") - being the only remaining appellant because the three individuals who were additional appellants discontinued their involvement by Notice filed 12 August 2014 - made a submission in the relevant notification period, being effectively a period from 28 March 2013 to 19 April 2013, during which the public could respond to the original Development Application lodged by the co-respondent, Metro Lambert Street Pty Ltd ("Metro"). There were 140 properly made submissions in all. The essential concern of the appellant was, and is, that the application for the then entitled "Material Change of Use - Multi-unit Dwelling - 253 units and Preliminary Approval for Building Work and Operational Work adjoining a Heritage Place" - and since amended - was in conflict with the relevant planning scheme, in particular, because the proposed development was, and remains, alleged to be excessive in many respects, including height, width, density and reduction in setbacks.

[2] At this introductory stage, it should be noted that the Kangaroo Point peninsula area has been, and remains, the subject, in all relevant plans, of its own specific Local Plan or Neighbourhood Plan.

[3] Given that it is common ground that the land area in question is in a high density residential area with specific performance criteria and specific acceptable solutions, some inevitable misunderstandings could, and did, arise concerning what the respondent, the Brisbane City Council ("BCC"), could approve on the particular site in question.

[4] It is not in dispute that (primarily adopting the written submissions, on this point, of the BCC) the subject land, as presently identified, ("the Site"):

(a) comprises an area of 3,291 square metres, being the combination of 7 different lots (now all vacant land);

(b) has a frontage of 82.27 metres to Lambert Street, Kangaroo Point;

(c) has a frontage of 9.84 metres to Cairns Street, Kangaroo Point;

(d) is situated at 36 to 48 Lambert Street and 67 Cairns Street;

(e) has a relatively steep cross rise of some 7 to 9 metres from the Cairns Street frontage to the south eastern corner of the Site on Lambert Street (Exhibit 21);

(f) is irregular in configuration (being roughly a battle axe shape with the handle being in a north-south direction at the northern extremity of the site);

(g) is contained within the Urban Footprint under the South East Queensland Regional Plan 2009-2031 ("SEQRP");

(h) is designated a Residential Neighbourhood in the Strategic Plan under the Brisbane City Plan 2000 ("CP2000");

(i) is within the High Density Residential Area under the CP2000;

(j) is within the Residential Precinct of the Kangaroo Point Peninsula Local Plan under the CP2000;

(k) is within the Suburban Living Area under the Brisbane City Plan 2014 ("CP2014"), Strategic Framework;

(l) is within the HDR2 - High Density Residential (15 storey) Zone under the CP2014;

(m) is within the Residential Precinct under the Kangaroo Point Peninsula Neighbourhood Plan under the CP2014; and

(n) is within the Kangaroo Point "Growth Node on a Selected Transport Corridor" under the CP2014.

[5] The relevant aspects of what has occurred are:

(a) on 6 November 2008, the BCC approved a large development on the subject land, and on two additional lots on Cairns Street ("Rankeilor 1");

(b) on 7 May 2009, an appeal by the appellant against that approval was dismissed;

(c) on 15 December 2010, the Planning and Environment Court approved certain permissible changes to that approval ("Rankeilor 2");

(d) until 31 December 2015, Rankeilor 2 remains current;

(e) on 14 December 2012, the original Development Application for the proposed development was lodged with the BCC;

(f) on 3 December 2013, minor changes made to the Development Application were approved by the BCC; and

(g) on 9 December 2013, a Decision Notice dated that day of the BCC was issued advising of its decision to approve the changed Development Application ("DA"), with conditions.

Exhibit 37 details those relevant approvals in tabular form (although there is some dispute about the number of storeys designated and although the last column should read "Current Proposal").

[6] As the DA was lodged, assessed, and appealed under the Sustainable Planning Act 2009 ("SPA"), it is the provisions of that legislation that first need to be addressed (in its latest iteration).

[7] As the DA involved "impact assessment", s 314 of the SPA is engaged, pursuant to s 314(1).

[8] By s 314(2) of the SPA the assessment is, to the relevant extent, to be made against, or having regard to, the matters or things set out in s 314(2) and s 314(3). Here, those matters or things are identified by s 314(2)(b), s 314(2)(g) and s 314(3)(b), respectively, as "against" the SEQRP and the CP2000, and "having regard to" Rankeilor 1 and Rankeilor 2.

[9] In particular, the assessment decision, by s 326(1)(b) of the SPA, must "not conflict with" a relevant instrument unless there are "sufficient grounds to justify" the decision, "despite the conflict". In the present circumstances the definition of "relevant instrument", relevantly, identifies the CP2000.

[10] In terms of court processes: s 495(1) of the SPA states that the appeal is by way of hearing "anew"; and s 493(2) states that, in an appeal by a submitter for a development application, it is for the applicant (here, Metro) to establish that the appeal "should be dismissed". Further, by s 495(2)(a), where, as here, the appellant is a submitter with respect to a development application, this Court must decide the appeal based on the laws and policies applying when the application was made (namely, the CP2000) but may give weight "to any new laws and policies the Court considers appropriate" (here the CP2014, which has been in effect since 30 June 2014).

[11] As it now appears in s 36(2) of the SPA, to the extent to which there is any inconsistency between a regional plan and a local planning instrument, the SEQRP, relevantly, "prevails to the extent of the inconsistency".

[12] The SEQRP Desired Regional Outcome ("DRO") 8, under the overall heading of "compact settlement", seeks a compact urban structure of well-planned communities, supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations which establishes the context for achieving a consolidated urban settlement pattern. In explaining that desired outcome it notes that:

• South East Queensland ("SEQ") is the third largest urban region in Australia and is experiencing "sustained growth pressure";

• SEQ has developed historically in "a dispersed, low-density settlement pattern, which has moved outward into the regional landscape" but this "pattern has become unsustainable";

• in response, the SEQRP "concentrates urban development in the Urban Footprint" and "redirects an increased proportion of new growth to existing communities";

• the SEQRP's "balanced approach to settlement ensures the efficient use of land and infrastructure", doing this "by requiring the efficient use of infrastructure in the city before new infrastructure is built further out";

• among other areas, "suitable established urban areas" (which must include the Kangaroo Point peninsula) are the "focus for accommodating regional dwelling and employment targets, and would accommodate projected growth to 2031";

• transport plays "a fundamental role" in SEQ's sustainability and "is best supported in a compact urban form";

• provision of housing options "should include a consideration of the costs of access to employment, facilities and services";

• changing household demographics, including an aging population and "more diverse households", are "increasing the demand for wider housing choice in SEQ"; and

• the balanced growth approach of the SEQRP provides housing choices for all SEQ residents and accommodates growth at the same time and, in this way, "diverse housing choices help provide affordable housing and can also mitigate the environmental costs of car-dependent development, use infrastructure resources more efficiently, and ensure better jobs to housing balance".

[13] DRO 8.1, entitled "compact development", states that its principle is to "conserve land by making the most efficient use of land allocated for urban development". Its associated policies include:

• accommodating a higher proportion of the growth through infill and "redevelopment of existing urban areas" to meet certain dwelling targets identified in Table 3; and

• focusing high density and mixed-use development in and around regional activity centres and public transport nodes and corridors;

: see 8.1.1 and 8.1.2. The accompanying notes to DRO 8.1 state that, to promote a balanced settlement pattern and more compact development within the Urban Footprint, the SEQRP "requires higher density residential development to be focussed within and around regional activity centres, and public transport nodes and corridors".

[14] DRO 8.2 is entitled "containing growth". Its principle is to:

• promote liveability and transport efficiency and reduce car dependence and private vehicle travel; and

• locate urban development in the Urban Footprint, either within or near existing communities to utilise their infrastructure and services, or within existing activity centres and at key locations along planned public transportation infrastructure.

[15] DRO 8.5 is entitled "housing choice and affordability". Its principle is to provide "a variety of housing options, diverse community needs, and achieve housing choice and affordability". Its policies include, by 8.5.2, to provide housing choice "through a range and mix of dwelling type, size and location in residential developments". Its notes state that, with significant population growth, SEQ is "undergoing economic, social and demographic change", with traditional households of couples with children decreasing and the number of people living alone, without children or as lone parents, increasing. It further notes that this "household change" is "creating demand for more housing options, including more affordable housing" and that understanding these changes and the implications for housing demand and supply "at a local level" can help determine "the type of housing needed in new development".

[16] DRO 8.9 is entitled "integrated land use and transport planning". Its principle is to ensure new development, relevantly, "utilises existing infrastructure". The notes to it state that integrating land use and transport: "supports more efficient land and existing infrastructure use; and maintains the environmental benefits of compact development".

[17] Chapter 5 of the CP2000 "provides details of Codes used in assessment". In explaining how to use those Codes, it states that the component designated "Purpose" within that Code explains what the Code "seeks to achieve".

[18] With respect to Performance Criteria, Chapter 5 states that they provide a statement of the outcome that the Acceptable Solution "must achieve". In particular, it states that a proposal not complying with an Acceptable Solution "must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met".

[19] Particularly important here is the statement in Chapter 5 that, relevantly for code and impact assessment, the Acceptable Solutions "represent the preferred way of complying with the Performance Criteria". It further states that there "may be other ways of complying with the Performance Criteria while still meeting the Code's Purpose". In particular, it states that it is "the responsibility of the applicant to demonstrate how alternative solutions comply with the Code's Performance Criteria". And lastly, in terms of assessment, it states that a proposal "that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts".

[20] Chapter 3, in part, sets out how different aspects of the CP2000 are to be understood with respect to Local Plans (defined later in Chapter 3 as providing "more detailed guidance" regarding planning intentions in specific localities as detailed in Chapter 4). In particular, a Local Plan does "not replace" the "Area allocation" described in Chapter 3 but puts forward "more locally focussed desired land use and built form outcomes" for the Local Plan areas. Importantly, Local Plans "override" any parts of the Plan "with which they may conflict". (Chapter 5, providing details of Codes used in assessment, states that the "level of assessment" in Chapter 3 may be "varied" by the Local Plans in Chapter 4.)

[21] When Chapter 3 deals with "Codes and Related Provisions", it states that the relevant Codes listed alphabetically in Chapter 5, are "the baseline regulations against which proposals" are "assessed", contain Performance Criteria and Acceptable Solutions, and "will also be considered for impact assessment where relevant".

[22] With respect to such impact assessment, Chapter 3 states that development subject to impact assessment requires an application and development permit before development can start and is "assessed against the whole planning scheme", including relevant Codes in Chapter 5 and any relevant Local Plan Code in Chapter 4. In particular, whether or not the level of assessment is varied by a Local Plan, impact assessable development within a Local Plan area "will automatically be subject to the relevant parts of the Local Plan Code". Concerning, "generally appropriate" and "generally inappropriate" impact assessable development, Chapter 3 states, with respect to assessing "generally inappropriate impact assessable development", that the proposal will need to demonstrate that, amongst other things, the character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with "the reasonable expectations and DEOs for the Area in which the land is classified".

[23] In Chapter 3's treatment of the level of assessment for High Density Residential Areas, specifically for the Kangaroo Point Peninsula Local Plan (though applicable to others), the level of assessment is determined by checking "this" level of assessment table and "then" checking the level of assessment tables in the relevant Local Plan to determine whether the Local Plan "changes" the level of assessment. Further, where the Local Plan contains a Code, the Code provides "additional and/or alternative" Performance Criteria and Acceptable Solutions to the Codes in Chapter 5 and "take precedence over" the Codes in Chapter 5.

[24] Chapter 3, in dealing with "Impact Assessment" that is "Generally appropriate" in a High Density Residential Area - Multi-unit Dwelling, where there is compliance with the Residential Design - High Density Code, the Relevant Code is stated to be Residential Design - High Density Code. It should be noted that, if the DA did not comply with all provisions of this Code, the level of assessment trigger relating to "Any other material change of use" would be activated and the DA would be considered "Impact Assessment - Generally inappropriate". To the extent to which it has been submitted that such a characterisation amounts to relevant "conflict", it is simply development "not specifically envisaged in the area". This particular Code is surveyed in more detail in the following section of these Reasons - but suffice it to be noted that, if this DA complied with this Code's Performance Criteria and Purpose, it would be "generally appropriate" development.

[25] Chapter 3, in dealing with a High Density Residential Area ("HDRA"), states that the "Intent" is that development "will be" to a "maximum" block ratio of 1.5, will be "no higher than" 10 storeys and will "address the street". As to the level of assessment, that is stated to be that contained in those provisions dealing with the High Density Residential Area (referred to above). Its DEOs are, relatively, neutral for this case.

Residential Design - High Density Code ("RD-HDC")

[26] As earlier observed, and as Chapter 5 expressly states for this Code, when using this Code where it is listed in a level of assessment table in Chapter 3, or a Local Plan in Chapter 4, as a Relevant Code for impact assessment:

this Code is to be read as being the Purpose, the Performance Criteria and the Acceptable Solutions; (but)
a Local Plan may include a Code that may vary, or include additional, Purposes, Performance Criteria or Acceptable Solutions.

[27] Bearing in mind that capacity for variation, or addition, the expressed Purpose of this High Density Code is, amongst other things, to "effectively manage impacts of the new development on neighbours" while:

"encouraging" attractive buildings of a size, intensity and appearance "consistent with" the High Density Area;
"facilitating" development that is "not more than" 10 storeys in height, spread across the site and orientated towards the street.

[28] Insofar as its Performance Criteria and Acceptable Solutions are concerned, Performance Criteria P2 states that "building size must be consistent with the intentions for the Area" and Performance Criteria P3 states that the "appearance of building bulk must be reduced by design elements".

[29] The Acceptable Solutions referable to P2 are as follows:

• by A2.1, maximum gross floor area is no more than, relevantly, 1.5 times the site area;

• by A2.2, the site area is a minimum of 800m2 and has a minimum frontage of 20m;

• by A2.3, building height at any point is no more than:

▪ 30m from ground level to the underside of the ceiling of any habitable room;

• by A2.4, building length is no more than 30m in any direction.

[30] Both P2 and P3 are within the concept of "building size and orientation". Later Performance Criteria and Acceptable Solutions are referable to the concept of "building appearance and setting".

[31] Though expressed in slightly different terms, the Chapter 3 assessment processes concerning Local Plans obviously resonate in the introduction to this particular Local Plan under Chapter 4. Specifically, the Introduction states that this Local Plan contains specific "additional" local planning requirements and that where it "conflicts" with the requirements of the CP2000 this Local Plan "prevails".

[32] The second part of this Local Plan deals with development "principles".

[33] By 2.1, it states that the Kangaroo Point peninsula is to be a "convenient" residential area in which people live "at higher densities" than in "most" other parts of the City.

[34] By 2.4, it states that "views to and from" the Story Bridge are to be "protected". Furthermore, buildings in the "locality" are to be of a scale and height that maintain the "dominance" of the "city centre skyline" and the "significance" of the Story Bridge to the "inner-city skyline".

[35] By 2.5, it states that "views" are to be "available" to "most" residents.

[36] By 2.7, it states that "proposals are to be responsive" to their site, adjoining development, the "locality" and the City (and the environment as a whole).

[37] Map A indicates the particular precincts of this Local Plan. In that map, the Site (being the subject land) comes within the "Residential Precinct", although it is noted that it is not within the specified area "with height limits to protect views" in that precinct. This Map also identifies the Local Plan "boundary".

[38] The third part deals with precinct "intents".

[39] By 3.3, dealing with the Residential Precinct, it states that the precinct is intended for "high density residential use" in accordance with, first, the Kangaroo Point Peninsula Local Plan Code and, secondly, the "design criteria" of the RD-HDC.

[40] The fourth part deals with "exceptions" to the level of assessment "overriding" the levels of assessment in Chapter 3.

[41] By 4, it states that, as earlier discussed, the trigger for assessment in the level of assessment table is, relevantly, "material change of use". In that table, for impact assessment in a Residential Precinct, for all development, the Kangaroo Point Peninsula Local Plan Code is the "Relevant Code". As seen from 4.3, all uses other than the five identified are impact assessable, generally inappropriate.

[42] By the fifth part, the Kangaroo Point Local Plan Code ("KPLPC") is laid out. This states that this Code provides additional and/or alternative Performance Criteria and Acceptable Solutions to the Codes in Chapter 5 and that they "take precedence over" the Codes in Chapter 5. Again, as earlier noted in the discussion of Chapter 5 for RD-HDC, that variance is also acknowledged there. The stated "purpose" of this Code is to ensure that development in the "Local Plan area" is "consistent with" the Development "principles" and the Precinct "intents" of this Local Plan (discussed above).

[43] Turning then to this Code's Performance Criteria and Acceptable Solutions, it is particularly to P2, P3 and P4 that attention is directed, although P6 is also relevant. As for the Dockside Precinct, it can be remarked that no Acceptable Solution relates to a building height of greater than 10 storeys.

[44] The Performance Criterion relating to gross floor area is that designated in P2. It states that the building "site" - which must mean "size", in context, especially that context provided by P1 and P3 - and "bulk" must be consistent with the "high density nature" of the "locality" and retain an appropriate residential scale and relationship with other buildings on the "city skyline". The relevant Acceptable Solution A2 states that where the area of the site exceeds 3,000m2 (as here) the gross floor area ("GFA") does not exceed 1.25 times the site area.

[45] For building height, Performance Criterion P3 states that new buildings "must" maintain views "to and from" the Story Bridge and "must not extend significantly above" the "skyline envelope" formed by linking the tops of "existing or prospective" buildings in the "vicinity" that comply with the associated Acceptable Solutions, or are of a size and bulk consistent with the "high density nature" of the "locality" and of a residential scale providing a "visual" relationship with other buildings on the "city skyline". The relevant Acceptable Solutions are listed. A3.1 refers to building height not extending above the planes established by the "maximum building height" contours on Map C or 10 storeys above ground level, whichever is the lower. It must be observed, at this stage, that Map C does not include the relevant Site. What the "(b)uilding height contours" do show are a gradual upward gradation from the river banks to the Story Bridge, with the highest of those being 32.5 AHD. A3.2 refers to building height south of Cairns Street on the eastern side of the Bradfield Highway not exceeding 10 storeys (excluding, relevantly, lift towers and other roof plant rooms). A3.3 and A3.4 deal with areas outside the immediate areas of concern.

[46] For streetscape, Performance Criterion P4 states that building forms must be in keeping with the "existing streetscape", and that building articulation and design elements are to "address" the street frontage/s. Relevant Acceptable Solution A4 states that no part of a building of two storeys or more above the ground level will be built substantially across or near the 6m building line of the principal frontage of a site, including frontage shown as a "desirable continuous frontage" on the precinct plan. It should also be noted at this point that there is a desirable continuous frontage denoted on Map A referable to relevant frontages both on Cairns Street and Lambert Street.

[47] Although the Performance Criteria designated "Views and Vistas" is inapplicable, the note to the relevant Acceptable Solution A5 indicates that a request for a "view analysis" may be made for any application for development on a site that is within 50m of the Brisbane River and not affected by the limits on height to retain views from or to the Story Bridge.

[48] For boundary clearances, separation and privacy, Performance Criterion P6 states that building setbacks must ameliorate the impacts of buildings on adjacent buildings, and maintain high levels of amenity of dwelling units for people within the "planning" unit, on adjoining sites, and in the public domain.

[49] Finally, "storey" is defined in Chapter 3 as a space within a building which is situated between one floor level and the floor level next above it "and commencing at ground level". It does not include, for instance, a space that contains only a lift shaft. The definitions set out in Chapter 3 are stated to be included for the reason, among others, "to provide an explanation of the meaning of terms used in the Plan" (i.e. the CP2000).

[50] Chapter 2, besides outlining city wide strategies to achieve city wide DEOs (which include 3.2.2.4 and 3.3.2.2 sets out the Elements of the City (which provide physical form to such DEOs and supporting strategies). Residential Neighbourhoods are discussed, as follows:

• in 4.2.1: the identified challenge, among others, is stated to result from the increasing interest being "shown in inner city living", with this trend being "assisted by a renewed interest in and focus on the Brisbane River" and, in common with the rest of Australia, "the composition of households is changing through changed economic conditions, lifestyles and demographic trends" such that, if people "are to be able to choose the kind of dwelling that suits their needs at different times in their life", housing provision must reflect these changes, which leads to the specific "challenge for the City" to ensure a "sufficient supply" of residential land and housing that can, amongst other things, provide "a range of housing choices to meet the widening spectrum of needs and desires of the community" and "support the diversity of people and activities that contribute to a broad social mix in the City and therefore to its character and liveability";

• in 4.2.2: the response to the identified challenges refers to residential neighbourhoods being the "most extensive of the City structure elements", such that the components of the residential neighbourhood's strategy are to, amongst other things: meet "realistic expectations" of future amenity; ensure housing choice and affordability; and promote "increases in density near high quality public transport and close to the City Centre"; and "maintain character";

• in 4.2.2.1: the response specifically addresses meeting realistic expectations of future amenity and includes the "prevent(ion)" of the intrusion of development that could "seriously detract" from "residential amenity" and the "mitigat(ion)" of the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy, with such "realistic community expectations" having a need to be "balanced" with "expectations" of housing choice "to meet resident needs during all stages of their life and to meet different lifestyle choices";

• in 4.2.2.2: the response is to include such residential neighbourhoods providing sufficient housing choice to enable residents to remain in their neighbourhood through all stages of their life if they wish and that housing "choice requires a variety of housing types and tenures to be available across the City and to enable access to housing for a wide range of income levels";

• in 4.2.2.3: the response states that high density housing in residential neighbourhoods is to be in locations that can be efficiently served by high quality public transport or "that are close to the City Centre" and that high density housing is "encouraged" in and around centres and institutions with large numbers of clients, employees or students and services and facilities, forming part of a proactive approach to planning for mixed use higher intensity nodes well integrated with the Movement System, particularly "pedestrian, bike and public transport networks";

• in 4.2.2.4: the response states that each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the city, topography, vegetation, social composition, history and proximity to a local centre and that development "should respect and be compatible with the local character";

• in 4.4.2.2: concerning strategies for "Multi-purpose Centres" - it being noted that proximate to the Site is the Dockside Town Centre and the Community Convenience Centre Precinct, as well as the CBD - the response to the relevant challenge concerning such centres is that such centres "will increasingly act as the focal points" for, amongst other things, higher density residential locations; and

• in 4.5.2.1: concerning the City's Movement System, after noting the "challenge" and the general "response", it is stated that the identified major elements are integrally linked with other elements of the CP2000, which aim to improve transport outcomes "through better land use planning", including provisions that: "encourage high residential densities in locations with high accessibility to public transport; encourage the provision of bikeways and pedestrian ways, linked to Centres and to public transport"; and "support more efficient use of land in residential development".

[51] The Kangaroo Point peninsula neighbourhood plan map NPM-011.1 shows the subject Site to be within precinct NPP-001 (which is designated "Residential"). Cairns Street forms its northern boundary and its south-eastern boundary is the western side of Park Avenue.

[52] Figure (g) contains an identification of an "area with height limits to protect views". This appears to be almost identical to the one in Map A in the CP2000.

[53] Under Table 1.2.1, dealing with zones and precincts, it is noted that the residential zones category identified as "high density residential" contains two precincts, one of an up to 8 storeys zone precinct and one of an up to 15 storeys zone precinct. Table 5.5.4 deals with the level of assessment for high density residential zones. Where a neighbourhood plan does not "specify" building height, the zone height applies. That is dealt with, in detail, at 6.2.1.4 (concerning the high density residential zone code). In particular, the purpose of this code is to provide for a range of well-designed, location-responsive, high density, medium to high rise multiple dwellings of "up to 15 storeys" in well-located parts of the city, suited to a diverse community and capitalising on the high density residential zones, strategic location and amenity, and proximity to key destinations: see s 6.2.1.4(2)(b). The specified purpose of the code "will be achieved through overall outcomes" for (besides "development location and uses" and "development form") those precincts, relevantly, of an up to 15 storeys zone precinct: see s 6.2.1.4(3)(c). It is further stated that the "development location and uses" overall outcomes are that development meets the building height "requirements" of the "multiple dwelling code" or "an applicable neighbourhood plan": see s 6.2.1.4(4)(i).

[54] The "development form" overall outcomes are that 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 high density residential zone and the relevant zone precinct, and is consistent with the "location-specific provisions in a relevant neighbourhood plan": see s 6.2.1.4(5)(a). An "up to 15 storeys zone precinct" overall outcome is for development that provides a residential building that has the "greatest height and density" in the city outside the Principal centre zone: see s 6.2.1.4(7).

[55] Part 7 deals with neighbourhood plans. Under 7.2 (dealing with neighbourhood plan codes) is 7.2.11.1 which covers the Kangaroo Point peninsula neighbourhood plan code ("KPPNPC"). This is the code applicable to the residential precinct "Kangaroo Point peninsula neighbourhood plan/NPP-001". With respect to "purpose", the stated purpose of the Kangaroo Point peninsula neighbourhood plan code is to provide "finer grained planning" at a local level for the relevant "area": see s 7.2.11.1.2(1). This purpose "will be" achieved "through overall outcomes including overall outcomes for each precinct": see s 7.2.11.1.2(2). In particular, the overall outcomes for the Kangaroo Point peninsula neighbourhood plan include that the Kangaroo Point peninsula neighbourhood plan area is a convenient residential area "where higher density living is more prominent than in many other parts of Brisbane": see s 7.2.11.1.2(3)(a). Another overall outcome is that views "to and from the Story Bridge are protected" and that buildings are of a height and scale that maintain the dominance of the "city centre skyline" and the significance of the Story Bridge to the "inner-city skyline": see 7.2.11.1.2(3)(d). Also, the overall outcomes include one that views are available to "most" residents in the neighbourhood plan area: see s 7.2.11.1.2(3)(e). Again, the overall outcomes include one that development is of a height, scale and form which is consistent with the amenity and character, "community expectations" and infrastructure assumptions intended for the relevant precinct, sub-precinct or site, and is "only developed" at a "greater" height, scale and form "where there is both a community need and an economic need for the development": see s 7.2.11.1.2(3)(f). Particularly with respect to the relevant residential precinct NPP-001, the overall outcome is that this precinct contains high density residential development with a building size and bulk, built form and layout that maintain views "to and from" the Story Bridge and the Brisbane River. That precinct covers not only the subject site but also substantial areas identified in Figure g as areas "with height limits to protect views". What were "Vistas" in the CP2000 are now designated "View corridors"; but still do not bear upon areas other than those that are close to the Story Bridge and its southern exit.

[56] Table 7.2.11.1.3.A states the criteria for assessable development. Dealing with performance outcome P01, it states that development is to be 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:

• by (a), consistent with anticipated density and assumed infrastructure demand;

• by (b), aligned "with community expectations about the number of storeys to be built";

• by (d), designed to avoid a significant and undue adverse amenity impact to adjoining development.

[57] The relevant acceptable outcome A01 is for development that ensures that the number of storeys and building height comply with Table 7.2.11.1.3.B. Thus, it leaves open an argument that this neighbourhood plan does not "specify" a building height, being simply dealt with in an "acceptable outcome". In turn, that table, referable to development of a site on the eastern side of the Bradfield Highway which is south of Cairns Street, states that the number of storeys is 10, although the building height is "not specified". This is in contrast to the adjoining Dockside precinct contained in plan NPP-004, particularly the dockside D1 sub-precinct (which has the number of storeys at 10 but the building height at 30m) and the dockside C1 sub-precinct (which also has the number of storeys at 10 and the building height at 30m).

[58] Metro contends that the approved plans show a 20 storey development. As has been observed, under the CP2000 the definition of "storey" is linked to the term "ground level", though the definition itself appears to be more directed towards subdivision. Since the building which provides the controversy faces Lambert Street, since its principal pedestrian access is from Lambert Street, and since that access is directly onto the base of the building, it is not - in the absence of any definition requiring any other conclusion - other than practical to describe it in a meaningful way as a 20 storey tower.

[59] Nevertheless, acknowledging that the quite significant change in levels on the Site may add to any potential difficulties, and since the exact number of storeys does not have to meet any precise measurement for present purposes, I accept that the reduced level measurement ("RD") provides the best way of comparing existing buildings, particularly those on the Kangaroo Point peninsula. The Site itself is large in the context of Kangaroo Point.

[60] From the town planners' joint perspective: the proposal has a GFA of 17,408m2; it contains 214 units; the maximum height of the building is 83.15m AHD to the top of the lift overrun; the roof of the rooftop plant and private terraces is some 2.4m AHD lower; and the plot ratio of the proposal is 5.29.

[61] I accept Metro's summary of its proposal as appearing in the town planning joint expert report ("JER") as:

• incorporating a podium containing seven two-storey "town homes" facing Lambert Street;

• showing that the podium contains the entry lobby for the apartments and other facilities including reception, manager's office, mail room, communal meeting room, residents' gym, bicycle storage and 9 apartments;

• having, above the podium, a tower containing the remaining 205 apartments;

• having a dwelling unit mix of 121 one bedroom apartments, 81 two bedroom apartments, 1 two bedroom town homes, 5 three bedroom apartments and 6 three bedroom town homes;

• having car parking provided in the basement with access from Cairns Street; and

• having setbacks which are described in detail in the town planning JER (set out in paragraph [4.1.11]).

[62] The details of the Council approval of the DA involved the following recommendations to Council:

• that the proposed frontage setback met the Performance Criterion by being in keeping with the existing streetscape and building articulation, with design elements that addressed the street frontage;

• that the town homes enhanced the existing character and scale of the streetscape;

• that the tower provided sufficient articulation and design elements to address the Lambert Street frontage;

• that the proposal achieved development of the highest standard with a wellarticulated tower;

• that the proposal met Performance Criterion P2 of the KPPLPC; and

• that the building height was supported, based upon the town home design responding to the residential scale of the streetscape, and the tower responding to the city skyline.

[63] The BCC's grounds for approving the application were that the proposal:

• was consistent with the general intentions of the CP2000;

• advanced the intent and development principles of the KPPLP;

• would not detrimentally affect the amenity of the neighbourhood;

• contained land which was within close proximity to public transport networks; and

• did not cause conflict with the state planning policies, planning regulation provisions or the SEQRP.

[64] Apart from issues of interpretation (which obviously affect the remaining issues), the following issues remain in contention at a primary level:

(a) whether the BCC's approval conflicts with the CP2000; and

(b) if so, whether there are sufficient grounds to justify the approval, despite the conflict.

[65] Those primary issues necessarily incorporate the issue as to the regard, or weight, to be given to the CP2014, in light of any inconsistency with its provisions.

[66] The Association, after referring to both the Notice of Appeal filed on 17 January 2014 and the Further Grounds of the Appellant dated 19 February 2014 - acknowledging that a small number of those issues had been resolved prior to hearing - summarised the remaining issues as:

(g) other specific amenity impacts (including shadowing);

[67] The JER of the town planning experts states that the following remain relevant in the CP2000:

(i) desired environmental outcomes ("DEOs") and city wide strategies to achieve the DEOs: 3.2.2.1, 3.2.2.4, 3.3.2.2, 3.3.2.4, 3.5.2.1, 3.5.2.2;

(ii) Elements of the City for Residential Neighbourhoods: 4.2.1, 4.2.2, 4.2.2.1, 4.2.2.2, 4.2.2.3;

(b) in Chapter 3 - Areas and Assessment Processes:

(ii) High Density Residential Area: 5.5.3, 5.6;

(c) in Chapter 4 - Local Area Plan (being the Kangaroo Point Peninsula Local Plan):

(ii) Performance Criteria P2, P3, P4, P6 and P9;

(d) in Chapter 5 - Codes and Related Provisions:

(i) Residential Design - High Density Code: the Purpose, and P2 and P3.

[68] Concerning the CP2014, that JER states that the following remain relevant provisions:

(a) in Performance Outcomes: PO1, PO2, PO3, PO4, PO6 and PO8;

(b) in Overall Outcomes: 7.2.11.1.2(3)(d), (e), (f) and (g);

(c) in Table of Assessment: 5.5.4 (High Density Residential Zone);

(d) in Zones: 6.2.1.4 (High Density Residential Zone Code);

(i) Theme 2 - "Brisbane's Outstanding Lifestyle";

[69] A useful starting point for such interpretation is to consider the approach of de Jersey CJ, with whom Muir JA and Douglas J agreed, in Stockland Development Pty Ltd v Townsville City Council & Ors.[1] There, after noting that the first instance approach to the application of the scheme to the developer's proposal involved "a correct interpretation of the language of the scheme" and "a factual conclusion as to the absence of conflict", de Jersey CJ stated that it was a mistake to think that the construction of town planning schemes can or should be attended by the precision and certainty which should characterise the construction of contracts and statutes, because good town planning, basic principles aside, depends on a large element of fluidity and flexibility: at 324 [25]-[26].

[70] But that approach does not mean that the same general principles which apply to statutory construction do not apply to the construction of planning documents. This was the concern of the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council & Ors.[2] There, Morrison JA, with the concurrence of McMurdo P and Douglas J, authoritatively stated that the correct approach to statutory interpretation must begin and end with the text itself, while at the same time bearing in mind that the modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, using "context" in its widest sense: at 95 [55] (with citations omitted). Where the flexibility and fluidity must then occur, consistently with Morrison JA's analysis, is by appreciating that such documents need to be read in a way which is practical, to be read as a whole, and to be read as intending to achieve balance between outcomes: at 95 [56]. In this understanding of such need, Morrison JA expressly adopted statements by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council,[3] to the effect that: planning schemes, and the definitions found in them, often lack clarity, contain ambiguities, and sometimes appear contradictory; and attempts to make sense of them gives rise, on occasions, to "expressions of judicial exasperation": at 96 [57].

[71] Noting that s 326 in SPA refers to both "grounds" and "conflict", the latter must be, as the authorities require, "plainly identified" and the former has the wider aspect of, simply, "grounds" which now prevails in the SPA. As defined in Schedule 3, it means matters of public interest but does not include personal circumstances of an applicant, owner or interested party.

[72] In dealing with the issue of justification in the contest between "sufficient grounds" and "conflict", the Court of Appeal has, again, recently weighed in on what had been an ongoing debate about what Weightman v Gold Coast City Council[4] stands for. In Lockyer Valley Regional Council v Westlink Pty Ltd[5] Holmes JA, with White JA and Atkinson J (the original proponent of the approach) agreeing, announced that there was no warrant in the provision itself for applying different weight to different grounds, because to do so would be to impose an entirely artificial set of fetters on the decision-making required, with the importance of the ground depending on what it is and not where it falls in the three-step approach: at 322-323 [21].

[73] An understanding of what looms large here (namely, a resolution of the way in which the specific provisions of the Acceptable Solutions, in particular, have any role to play in the finding of whether relevant Performance Criteria are complied with) was dealt with in SDW Projects Pty Ltd v Gold Coast City Council.[6] Although this was a decision of this Court at first instance, the Court of Appeal's understanding of the propositions enunciated in the decision obviously bear upon that resolution. In SDW Projects, Rackemann DCJ canvassed the code provisions of the planning scheme under scrutiny which he identified as being similar to other codes in other statutory planning schemes. The similarity of the code here to there gives especial importance to his conclusions. He held that while acceptable solutions indicate a "desirable" way to "ensure" compliance, they are not the "only" solutions and that this is to be contrasted with performance criteria which are, generally, outcome focussed and, generally, ought not to be interpreted as requiring adoption of the acceptable solution "or even as requiring an alternative solution to be akin to the acceptable solution": at 30 [47]. Additionally, he held that it is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code, noting that, under the performance based approach, the acceptance of an alternative solution does not represent a "relaxation" or a "dispensation" but rather is another way of achieving compliance with the relevant performance criterion: at 30 [48].

[74] In K Page Main Beach Pty Ltd v Gold Coast City Council & Ors,[7] Rackemann DCJ relied upon his earlier exposition, amongst others, in SDW Projects: at 412 [36]. Another such authority was WBQH Developments Pty Ltd v Gold Coast City Council & Anor,[8] on appeal. There, Fryberg J, speaking for the Court, stated that what the judge at first instance had written was "undoubtedly correct" in concluding that compliance with acceptable solutions "is not mandatory": at [35]. Nevertheless, it is important to understand that it was further held, in that appeal, that the existence of a relevant "intent" does not conclude the question of conflict, which necessarily follows from the fact that compliance with performance criteria will satisfy the provisions of the code, notwithstanding non-compliance with a corresponding acceptable solution: at [37]. He added the further rider that, while the weight to be given to such an intent may be small, it is the task of the judge to evaluate all relevant matters in the exercise of the judgment of this specialist court: also at [37].

[75] The main decision in the Court of Appeal in K Page Main Beach is Gold Coast City Council v K Page Main Beach Pty Ltd[9] was given by de Jersey CJ, with whom Muir JA agreed. Chesterman JA agreed with the conclusions of the Chief Justice and the orders that he proposed. In his analysis of the primary decision, de Jersey CJ observed that the approach taken by the Gold Coast City Council (which had refused the primary application and which had applied for leave) "verges" on presenting the designated height, provided in an overlay map, as "a controlling constraint rather than as a guide" - while specifically noting that the applicant would disclaim such a position: at 59 [20]. Importantly for present purposes, he went on to note that the planning 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": also at 59 [20]. In particular, de Jersey CJ referred to Fryberg J's decision in WBQH Developments (noting that other members of the Court had concurred): at 60 [24].

Interpretation of some contentious CP2000 Provisions

[76] Before embarking on a determination of what Development Principle 2.5 (concerning views) means by such being "available" to "most" residents, it is necessary to resolve the meaning of the immediately previous Development Principle 2.4 about views "to and from" the Story Bridge. In context, 2.4 as a whole must concern all of the KPPLP area, since this principle extends to dealing with the relationship between such an area and city centre (and inner-city, to the extent, if any, that it is different) skyline.

[77] The first aspect of this anterior question then is what is meant by "locality". Given that the particular concern is with the "Local" plan dealing with the whole of the Kangaroo Point peninsula, it must lead to the resolution that the locality is the whole area that this specific Local Plan embraces. This is, agreeably, consistent with its context.

[78] The later use of "locality" in Development Principle 2.7 [that proposals are to be responsive to their site, adjoining development, the locality and the City (together with the environment as a whole)] shows that the concern there is with an increasing scale of area, in which "locality" is totally consistent with the resolution just expressed.

[79] Any attempt to read down "locality" where it appears in Performance Criteria P2 and P3, in the absence of any more specific elaboration in those Criteria, would appear to negate the initial Development Principle 2.1 which acknowledges that (presumably the whole of) the "Kangaroo Point Peninsula" is a convenient residential "area" in which people live "at higher densities than in most other parts of the City". Hence, the reference in Performance Criteria P2 to the "high density nature" of the locality is simply a reference to the fact that the peninsula contains High Density Residential Areas, at the very least insofar as it involves the Residential Precinct. That precinct, from Map A, includes not only the area south of Cairns Street but also the area adjacent to, and under, the Story Bridge structure itself. As the precinct intent for the Residential Precinct states, this precinct is "intended" for "high density residential use" in accordance with the KPLPC and "design criteria" of the RD-HDC. For what moment it has, the expression is used differently by Mr Olsson and Mr Buckley, on one part for the Association, and Mr Brown, on the other part for Metro. Quite obviously, their individual views can, at best, be only an indicative feature of the way that such "experts" commonly use them. But the very nature of their dispute shows, at its base, ambiguity and therefore needs an interpretative solution.

[80] The next matter is the use of the differing expressions "city centre skyline" and "inner-city skyline". In Development Principle 2.4 both terms are used. Where a word is used consistently in legislation, it should be given the same meaning consistently; and, in a complementary way, where different terms are used, the intention is to change the meaning: see Statutory Interpretation in Australia, Pearce and Geddes (7th edition) at [4.6]. But as the text goes on to acknowledge, it is necessary to bear in mind that a change in language may be forced by context and that the approach to both ways is readily rebuttable: see [4.7]. The use of "dominance" concerning the city centre skyline and the use of "significance" (referable only to the Story Bridge) concerning the inner-city skyline appear to show that different considerations (but concerning the same skyline) are undertaken. The dominance referred to is that of the skyline of the buildings in the city centre (at times, designated as the CBD) as compared with buildings in the "locality" (constrained by scale and height in that usage). On the other hand, the significance, in terms of the scale and height of buildings in the locality, is of the Story Bridge in its visual association with the inner-city skyline. The use in Performance Criteria P2 and P3 of the slightly different term, the "city skyline", appears to be nothing other than a reference to the skyline of the same "city centre" buildings. The reasons for this are not only the reference in Development Principle 2.4 to the dominance of the "city centre" buildings - reflecting the "purpose" of the KPLPC to ensure that development is "consistent with" such development principles - but also that the reference to "city skyline" buildings in both Performance Criteria P2 and P3 are preceded by almost identical wording, suggesting that at least between P2 and P3 there is a necessity for consistency. And that consistency extends to being consistent with Development Principle 2.4 because the relationship, which can only be visual, must be one of domination by the city centre buildings.

[81] Again, to the extent that it matters, Mr Olsson for the Association, although at times vacillating in this view, finally concluded that at least the "city centre skyline" and "inner-city skyline" referred to the skyline of the CBD.

[82] The next matter springs from the question: what does Performance Criteria P3 mean when it refers to "the vicinity". While that, to some degree at least, depends upon how the whole of P3 can be deconstructed into its individual sub-components, the use of a term which is different from "locality" must distinguish it to some extent from that latter term. Quite obviously, it depends on context: see Emerald Developments (Aust) Pty Ltd v Brisbane City Council[10] at 440 [11]. The context here is determining the nature of "skyline envelope" formed by linking the tops of existing, or prospective, buildings of a particular kind. That specific context suggests a narrower meaning than "locality". Even so, is the limit to be determined by simply looking at the carved out southern part of the Residential Precinct? There is no particular reason why it should, because the KPLPC in 5.1 simply refers to the Local Plan area "General(ly)" (while appreciating that the other "building" precincts are separately considered). I therefore conclude that all existing, or prospective, buildings are in the vicinity if they have a proximate relationship with the "new" building under scrutiny. Acceptable Solutions A3.1 to A3.4 do not undermine that conclusion. Besides being acceptable solutions only - with all that entails - the different solutions do not, for instance, cover all areas in Map A which are within the Residential Precinct.

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