Norfolk Estates Pty Ltd v Brisbane City Council & Body Corporate for Kirribilli Apartments Community Titles Scheme and Ors [2016] QPEC 9

[2] As the application was lodged on 3rd October 2014, it is to be assessed against the relevant provisions of CityPlan 2014 (the Planning Scheme). The site is:

(a) comprises two adjoining allotments having a combined area of 810m²;

(b) has a frontage width of approximately 20 metres and a depth in the order of 40 metres;

(c) adjoins, and gently slopes towards, a dedicated park (known as Merthyr Park) which overlooks the Brisbane River;

[3] As the development application was made under the Sustainable Planning Act 2009 (the SPA), and is impact assessable, it is to be assessed under s 314 of the SPA. It is to be decided in accordance with ss 324 and 326. The Court's decision (as assessment manager) must not conflict with the Planning Scheme unless there "are sufficient grounds to justify the decision". "Conflict" means to be at variance with or disagree with. "Grounds" is defined in Schedule 3 of the SPA, as being "matters of public interest". Norfolk has the onus of proof of establishing that the appeal should be allowed. The appeal is by way of hearing anew, and in this regard the revised plans tendered as Ex 30, which focus on the rooftop terrace configuration, will be considered as part of the assessment as a minor change.

[4] Council set out 15 reasons for refusal in its decision notice and asserts significant conflict with various provisions of the Planning Scheme including the New Farm and Teneriffe Hill Neighbourhood Plan Code (the New Farm Plan); the Multiple Dwelling Code (the MDC); and the Medium Density Residential Zone Code. Council's position is summarised succinctly at paragraph 3 of Mr Williamson's written submission:

"In summary terms, it is the Council's position that the development application should be refused because:

(a) the proposed development is not of a height, bulk and scale consistent with the intended character of the area;

(b) there is no economic or community need demonstrated by the Appellant which warrants approving the proposed development contrary to the deliberate planning strategy expressed at multiple levels in CityPlan 2014 that the site be developed for medium rise, medium-high density residential accommodation; and

(c) a decision to approve the proposed development would conflict with CityPlan 2014 and there are no grounds for sufficient weight to warrant approval despite such conflict."

[5] Mr Job's clients accept Council's position, but focus more on what they submit are unacceptable impacts on amenity, particularly on views from the upper levels of Kirribilli House, a development on the western boundary of the site of 11 storeys which was approved well before the Planning Scheme commenced, and indeed well before the commencement of its predecessor, CityPlan 2000. Mr Job's submission focuses on alleged multiple conflicts with the Planning Scheme in relation to impacts on character, views, light and privacy.

[6] Norfolk's position is that the proposal does not conflict with the Planning Scheme, but, if I find that it does, the conflict is technical and Mr Duane's evidence would persuade me that there were sufficient grounds to justify approval notwithstanding the conflict.

[7] It is important to keep in mind the proper approach to the construction of planning schemes in appeals such as this. In particular, planning schemes should be construed broadly, and as a whole, rather than pedantically or narrowly and with a sensible practical approach, in a way which best achieves their apparent objects and purposes.

[8] For reasons that I will expose, I think that Mr Buckley and therefore Norfolk, have approached construction of the relevant planning scheme provisions here far too narrowly and pedantically, and have not construed (in their opinion and argument) the relevant provisions as a whole. It is true that in the Planning Scheme, the Hierarchy of assessment criteria in Part 1 provide that Neighbourhood Plans prevail over zone codes (such as the Medium Density Residential Zone Code) and use codes (such as the MDC), but only "where there is inconsistency between provisions in the planning scheme". As my reasons will expose, I think the relevant provisions (when read as a whole) are consistent and clearly indicate Councils' intentions for this site. Mr Buckley concentrates (impermissibly I think) on a number of provisions in the New Farm Plan; which, indeed are said to provide "finer grained planning at a local level". This however is not a prescription for overlooking and/or discounting other provisions both in the New Farm Plan and the relevant zone and use codes.

[9] Norfolk's case depends to a significant extent on my acceptance of the evidence of Mr Lindsay Mack, its visual amenity expert, in preference to that of Mr McGowan, who gave expert evidence in this field on behalf of Council. I will deal with that evidence before turning to the Planning Scheme, but to do so it is necessary for me to set out a more detailed description of the proposed development and the locality.

[10] Mr Williamson states in his written submission (which I adopt):

"5. The Visual Amenity experts agreed that New Farm has a relatively heterogeneous character, exhibiting a variety of building types, height, ages and styles apparent within the suburb, and as seen from the Brisbane River. They also agreed that there are a number of components of the existing area which are "unifying elements" of the character, namely a relationship to the river, a number of older (of character) houses and flats; a dispersal of larger buildings, often near to the river and a prominence of mature street trees.

6. Oxlade Drive runs parallel to the Brisbane River. This road has two changes in alignment. The first change occurs at the intersection with Hazelwood Street. The second change occurs at about the western corner of the development described as "Kirribilli".

7. The site is located on the southern side of Oxlade Drive and:

(a) comprises two adjoining allotments having a combined area of 810m²;

(b) has a frontage width of approximately 20 metres and a depth in the order of 40 metres;

(c) adjoins, and gently slopes towards, a dedicated park (known as Merthyr Park) which overlooks the Brisbane River;

8. The site adjoins land to its east that is developed with a four storey multiple dwelling. The adjoining development is known as "Edgewater".

9. Beyond Edgewater to the east there are a mix of dwelling types on the southern side of Oxlade Drive including:

(b) multiple dwellings up to 5 storeys in height (7 in number); and

(c) multiple dwellings over 5 storeys and up to 9 storeys in height (4 in number).

10. The site adjoins land to its west that is developed with a high rise multiple dwelling apartment complex known as "Kirribilli". Kirribilli is 11 storeys in height. It was approved and constructed will before CityPlan 2014 took effect.

11. Existing development to the west, and north-west, of Kirribilli includes:

(b) a multiple dwelling of seven storeys reducing to five storeys at its western boundary (known as Platinum); and

(c) a high rise multiple dwelling of fifteen storeys (known as Glenfalloch).

12. The town planning witnesses agreed that a reasonable description of the character of the southern side of Oxlade Drive and Griffith Street was as follows:

"predominantly medium rise, medium density residential area ... and contains mostly multiple dwellings although some single dwellings remain."

14. There is a contrast in development form either side of Oxlade Drive and Griffith Street. The town planning witnesses agreed that the character of the northern side of Oxlade and Griffith Street could be described as follows:

"Opposite the site on the northern side of Oxlade Drive the profile and density is markedly different. It is an area of predominantly low rise medium density residential development containing both detached houses and multiple dwellings as well as ... small scale non-residential uses."

16. The Appellant's case emphasises the existence of the high rise buildings in Oxlade Drive, particularly Kirribilli. Only one of the high rise developments, 166 Oxlade Drive (Platinum), was approved after CityPlan 2000 took effect.

17. An interesting feature of the existing character is the manner in which tall buildings respond (in terms of bulk and scale) to adjoining sites with existing low rise buildings. The existing high rise buildings (namely Glenfalloch, Platinum and Kirribilli etc) respond to existing low rise buildings in one of two ways:

(a) first, the taller buildings are separated from the existing buildings by a significant setback distance - Glenfalloch is separated from an adjacent four storey building by the Sydney Street Road Reserve, Kirribilli is setback in excess of 14 metres from its boundaries (those boundaries are common to land developed with two storey dwellings); or

(b) second, the taller buildings are designed to achieve an appropriate transition to the adjoining structure - Platinum was designed and constructed to provide a building which is seven storeys in height that, halfway across its width, reduces to a five storey building, which in turn shares a common boundary with land developed with a two storey dwelling."

[11] As I have noted above, there is a dispute as to whether the rooftop terrace falls within the definition of "storey" in the Planning Scheme. By reference to the revised plans (Ex 30), Mr Skoien and Mr Richardson submit (at 2.22 of their written submission) that the rooftop terrace does not constitute a "storey". They do not refer to that part of the definition which states:

"A rooftop structure on or part of a rooftop that does not solely accommodate building plant and equipment is a storey".

[12] It does seem tolerably clear to me that this area comes within that part of the definition, particularly when one has regard to elevation drawings in Ex 30. However, I agree with Mr Williamson, that whether the proposal is 9 or 10 storeys is not fundamental to the outcome, as the 10th level of the proposal which will be visible will be read as a storey irrespective of the definition in the Planning Scheme.

[13] The proposal is designed so that the upper four accommodation levels have been stepped in, reducing the scale of this part of the proposed building when viewed from Merthyr Park and Oxlade Drive, and limiting the view impacts on the residents of both Edgewater and Kirribilli. The facades have significant articulation, differences in built form, and varied treatments designed to overcome the appearance of a tall building. The proposed treatment of balcony profiles in the upper levels on the western façade is designed to reflect the curve of Kirribilli.

[14] As I have noted, it is agreed that the height will be 31.5 metres. Mr McGowan prepared Ex 14 (I infer) during the hearing. It purported to broadly calculate dimensions (relevant to height, bulk and scale) of buildings (including the proposal) above 5 storeys for the area between Oxlade Drive, Merthyr Park, Sydney Street and Turner Avenue.

[15] Those calculations (relevantly in relation to the proposal and Kirribilli) were not significantly disputed by Mr Mack. The proposal will be 30 metres long and 15 metres wide. Kirribilli, which has 11 storeys is 37.5 metres long and 17 metres wide though differently aligned upon its much greater area, so that its 37.5 metre length faces Oxlade Drive and the river. Setbacks for the proposal are much less than for Kirribilli. The site is 809m² with a GFA of 2592m²; Kirribilli has an area of 2,947m², and GFA of 5514m². The plot ratio of the proposal is 3.1:2, whereas Kirribilli's is 1.87 approximately.

[16] At 3 of their joint expert's report (Ex 6) Mr Mack and Mr McGowan wrote:

"New Farm as a suburb has a relatively heterogeneous character, exhibiting a variety of building types, heights, ages and styles apparent internally (as seen from streets and residences), and as seen from the Brisbane River. This mixed character is evident to varying degrees at all experiential scales throughout the suburb. The consistent unifying elements include: a relationship to the river; a number of older (often character) houses and flats; a dispersal of larger buildings, often near to the river; a prominence of mature street trees."

[17] In paragraph [10], I have set out paragraph [10] of Mr Williamson's submission, which is a quote from paragraph 13 of the planner's joint expert report which is an apt description of the character of the part of the surrounding locality on the riverside of Oxlade Drive. With the exception of Platinum (166 Oxlade Drive) which adjoins the 15 storey heritage listed Glenfalloch (172 Oxlade Drive), all of the buildings above 5 storeys in that part of the locality along the riverside of Oxlade Drive the subject of Ex 14, were approved prior to City Plan 2000. Platinum is 7 storeys on its boundary with Glenfalloch, and steps down to 5 storeys beside a 2 storey house on its eastern boundary.

[18] The description of the character of this part of the locality adopted by all planners, accords with the designation in the New Farm Plan map, and the Zoning Map in the Planning Scheme as Medium density residential (or living).

[19] Contrary to the Planning Scheme, and without support from the planners or Mr McGowan, Mr Mack seeks to divide the Medium density residential zone on the riverside bounded by Merthyr Road, Griffith Street/Oxlade Drive to Turner Avenue into what he describes as "3 sub precincts:

• The Griffith Street Sub Precinct, between Merthyr Road and Sydney Street

• The Middle Sub Precinct between Sydney Street and slightly East of Sargent Street

• The Eastern End Oxlade Drive Sub Precinct, between slightly East of Sargent Street".

"6 ... that the Middle Sub Precinct has a relatively clear and attractive character which is largely defined by: a clear distinction between low rise development on the north side of Oxlade Drive, and medium-high rise on the southern side; a general consistency of building height along the southern side which is interrupted by a number of older high rise buildings; a generally fine-grain established by the street layout and allotment sizes; the park and river edge; and the street trees along Oxlade Drive, are less significant in this sub precinct then the other two listed above, rendering this part of the Street with a more open feel (refer to Figure 5 - Figure 8). At 11 storeys, Kirribilli is a prominent building and something of a landmark for the area, although it makes little positive contribution to the local character and amenity.

7 ... that the impact of Kirribilli and the other larger scale buildings in sub precinct (sic) together with the more openness of the area give this portion of this Street a higher density, multi-unit feel".

[21] On the whole of the evidence, including the photographs and photo montage evidence, there is no support for Mr Mack's approach either from the Planning Scheme, or from a visual amenity point of view. I accept Mr McGowan's opinion that a person passing through the whole of this part of the locality would not assess the character as 3 distinct sub-precincts but rather "collectively as part of a wider visual experience", and I do not accept Mr Mack's opinion that any part of the local area, when viewed collectively, has "a higher density, multi-unit feel". I agree with Mr Williamson that Mr Mack has not only incorrectly designated the relevant locality by reference to character, and indeed amenity, he has adopted a very narrow approach to this issue which finds no support in the Planning Scheme.

[22] In oral submissions on 15.2.16, Mr Skoien sought to support Mr Mack's approach by reference to the New Farm Plan map. The map does provide for sub-precincts but not in this precinct. I regard the map, and other provisions in the Planning Scheme relating to the neighbourhood covered by the map, as being contrary to Mr Mack's approach, not supportive.

[23] In relation to the bulk, scale and height issue, I prefer Mr McGowan's opinion to that of Mr Mack. There was much debate as to whether the proposal was as high as Kirribilli or lower. Mr Mack's opinion was variously, that the proposal would assist "to reconcile the 11 storey Kirribilli apartments to the prevailing character"; "is restorative in its nature bridging between the bulk and scale of the buildings to the east of the site and Kirribilli"; "has been carefully framed to visually link with other medium rise development within the area whilst also linking with its taller neighbour". Whether the proposal is as high as Kirribilli or whether it is just below Kirribilli in height, the evidence overwhelmingly establishes that it will present, in terms of height, in particular, as very similar to Kirribilli, and as a high rise residential development proposal in a medium density zone.

[24] The "bridging" argument advanced by Norfolk falls away, when one has regard to the rough outlines drawn by Mr Mack on Ex 18, a series of photographs taken by him from Mowbray Park across the river during the hearing. The markings were placed on the photographs by Mr Mack during cross-examination by Mr Williamson. They graphically demonstrate why Mr Mack is wrong when he opines, as he has in relation to the proposal, that it provides an appropriate link (in a visual amenity sense) between Kirribilli and the 4 storey Edgewater. The photographs also show how Platinum, with 7 storeys to the Glenfalloch side and 5 storeys on its eastern boundary, provides a "visual link", in its impact on character. Mr Mack was cross-examined about p. 2 of Ex 14 (prepared by McGowan). He argued that the sequence of views from Oxlade Drive towards the subject site was consistent with his own work. He agreed that the model of the proposal superimposed on those view photographs (with the exception of View 2) was fair, although the model was not presented with its architectural features. He thought View 2 (with model inserted) was misleading.

[25] His response is Ex 17. In my opinion, there is not much difference. Whichever exhibit you look at, it undermines Mr Mack's opinion both in relation to creating a visual link with existing high rise buildings, and being consistent with prevailing character. The fragility of his opinion (and Norfolk's argument based on it) was exposed by Mr Williamson in cross-examination. Mr McGowan had taken Figure C from Ex 8 (Mr Mack's trial report), and removed the top 4 storeys which are depicted in Ex 19 as sky, as the proposal would appear if it was 5 storeys. Mr Mack struggled to justify his opinion that when viewed from the perspective depicted in his Figure C (along with other Figures set out in Ex 8) that the proposal can be seen as "visually bridging the gap ... (with) ... Edgewater and achieving a coherent visual statement." His photos (with model inserted) in Figures A, B, C, and D do nothing of the sort. Ex 19 graphically supports this conclusion. Without the top 4 storeys, the proposal would visually bridge the gap between Kirribilli and Edgewater, and (to use Mr Williamson's words) produce a pleasant graduation. I will discuss some of the other evidence on this topic when dealing with the debate over the relevant planning scheme provisions.

[26] There is no conflict with the strategic framework provisions of the Planning Scheme and none is asserted in Councils' reasons for refusal. The purpose of the Medium density residential zone code is (relevantly) to:

"(b) Provide for well designed, location responsive, high density, medium rise multiple dwellings of up to 5 storeys, in well-located parts of the city to provide housing diversity and capitalise on the zone's strategic location and amenity ...": 6.2.1.3(2)(b).

[27] In its written submission, Norfolk refers to this purpose as an "intent", and highlights the words "high density" but omits the words "up to 5 storeys". Mr Skoien assured me in the oral submissions on 15.2.16 that the omission was not deliberate. With the words included however, it is hard to justify the submission that the proposal is "well supported" by this discrete provision.

(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 Medium density residential zone.

(b) Development comprises medium rise, medium-high density residential buildings of predominantly apartment style multiple dwellings, 3 to 5 storeys in height.

(c) Development provides for a building to have a building height and bulk that responds to:

(ii) site characteristics, including the shape, frontage, size, orientation and slope.

(d) Development responds to local characteristics, such as protection of view corridors, reinforces a green landscape character and responds to the surrounding character and architecture by having a lower height and/or smaller bulk than the High density residential zone, acknowledging this zone's role as a transition area between higher and lower rise/lower density zones".

[29] Given the issues in dispute, the focus of the planners was on the New Farm Plan. As I have noted, one of its purposes is to provide "finer grained planning at a local level". Consistent with the principles relating to the construction of planning schemes, such a provision does not obviate the need for the assessment manager to consider other relevant provisions of the Planning Scheme.

[30] Mr Williamson anticipated that Norfolk would argue that there was inconsistency between the provisions of this Plan and the MDC and the Medium Density Residential Zone Code.

[31] In this regard, he set out from 73 - 83 of his written outline a detailed submission to the effect that there was no inconsistency between the New Farm Plan and the more general provisions of the Planning Scheme in the applicable zone and use Codes. The principal submissions of Norfolk exchanged in November 2015 with Council did not suggest inconsistency. Then in Norfolk's reply to Mr Williamson's submissions it is stated:

2.38 The Appellant, contrary to the contentions in the Respondent's Submissions at paragraphs 73 to 73 (sic), does not advance a primary submission that there is clear inconsistency in City Plan 2014. Rather, the MD Code 2014, MR Code 2014 and the Neighbourhood Plan Code 2014 permit the Proposed Development, for the reasons advanced in the Appellant's Principal Submissions dated 25 November 2015. Properly construed, the provisions are quite capable of working together, but, in any event, the Neighbourhood Plan Code 2014 prevails to the extent of any inconsistency."

[32] It was therefore surprising that in oral submissions on 15.2.16 Mr Skoien said this:

"At the end of the day, it's ultimately our submission that if your Honour were satisfied that the Neighbourhood Plan supported the proposal, that is, that there was no conflict between the Neighbourhood Plan and the Proposed Development, then, on the issues that have been raised here, in effect, there could be no conflict with the planning scheme whatsoever, because any conflict with the Multiple Dwelling Code or the Medium Density Zone Code would be reliant upon provisions which are themselves inconsistent with the provisions of the Neighbourhood Plan."

Mr Skoien then confirmed with me that this was not his client's position, either in its principal submission or in its reply to the specific argument on this topic advanced by Mr Williamson. His argument, as I perceive it now, is that on the key issue of height, bulk and scale, there is inconsistency, in that the Zone and Use Codes call for "a different test", to use his words, than that in the New Farm Plan, and therefore the Plan provisions must prevail. He says, for example, that the Zone Code calls for an up to 5 storey in height test, and the New Farm Plan does not. In my view, this approach is yet another example of Norfolk's attempt to have the Court focus only on the (2) provisions in the New Farm Plan in accordance with Mr Buckley's approach. In my view, when read as a whole there is no inconsistency in the sense that the relevant provisions in the Codes and the New Farm Plan dealing with height, bulk and scale lack harmony or are self-contradictory or at variance.

[33] When these provisions are read as a whole there is harmony as between the New Farm Plan and, the Medium Density Residential Zone Code and the Multiple Dwelling Code. This can be discerned by a proper reading of the provisions referred to in my reasons. To take the narrow and restrictive approach of Mr Buckley is to ignore the consistency as between provisions in the New Farm Plan and the Zone and Use Codes particularly relating to development being "medium rise" or intended to be predominantly medium density in nature; and even taking PO1 on its own, it is hard to escape the logic of the argument made by Mr Williamson and Mr Job, and the opinion expressed by Mr Brown, that community expectations about the number of storeys to be built would be in part informed by the reference in AO1 to Table 7.2.14.1.3.B. Mr Williamson again anticipated that Norfolk would rely on Judge Robin QC's decision in Calvisi & Anor v Brisbane City Council & Ors [2008] QPEC 45; [2009] QPELR 35 in support of its inconsistency argument. Although the case is in Norfolk's list of authorities, this argument was not advanced.

[34] His Honour was considering a proposal at Moray Street, New Farm against the now repealed 2000 Planning Scheme. The site was included in the Medium Density Residential Area and the Medium Density Living Precinct of the New Farm and Teneriffe Hill Local Plan. The issues were similar to those in this appeal, namely bulk, height and scale. The Local Plan at that time does not include an analogue to PO1 or s 7.2.14.1.2(3)m in the 2014 New Farm Plan. His Honour did find inconsistency and held that in those circumstances "it is the Local Plan that governs". The key difference is that PO1 (in (b)) refers specifically to "storeys" in relation to community expectations, rather than in the 2000 Plan, limiting itself to the specification of storeys as an Acceptable outcome. I agree with Mr Williamson that the key point of difference between the New Farm Plan and the Zone and the Use Code provisions, is that the former permits of an opportunity to exceed the height, bulk and scale intended for the area where an economic and community need is demonstrated for the proposed development.

[35] Mr Buckley however did focus on 7.2.14.1.2(3)(m) in the overall outcomes provisions. Indeed he regarded the New Farm Plan essentially as the determinative planning document in the case. He did so because of what he opined was inconsistency between it and the zone and use codes (particularly in relation to specific height provisions). In cross-examination, he conceded that absent this provision, the proposed development conflicted with the planning scheme. The provision is in these terms:

"(m) 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."

[36] Regard must also be had to 7.2.14.1.2(6)(a) and (b), the overall outcomes for the Medium density living precinct in which the site is located:

"(6) Medium density living precinct (New Farm and Teneriffe Hill neighbourhood plan/NPP-003) overall outcomes are:

(a) This precinct is predominantly medium density, taking advantage of the benefits of high accessibility and visual amenity that characterise this area.

(b) Development provides visual and physical links to the river."

[37] The Criteria for assessable development in the Plan area are also of relevance, keeping in mind always that in performance based schemes such as this, Acceptable outcomes are one way of achieving the relevant Performance outcomes, and other outcomes or solutions may achieve the relevant outcome. Mr Buckley (and Norfolk) concentrated on PO1. Mr Buckley could only point to 7.2.14.1.2(3)m and this Performance Outcome upon which he relied:

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 with 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 avoids 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 set out in Table 7.2.14.1.3.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 parametres where maximum number of storeys and height are specified.

[38] AO1 takes the reader to Table 7.2.14.1.3.B where the reader discovers that the maximum building height in the Medium density living precinct in the New Farm Plan area is 5 storeys and 15 metres.

[39] The Court is also required to consider PO7 in the Medium Density living precinct which relates to views to and from the river, and again the visual relationship with other buildings in the vicinity, and AO7 again refers the reader back to Table 7.2.14.13.B; and PO8 which refers to building size and bulk in this precinct being consistent with "the medium density nature of the locality". AO8 refers to a gross floor area equal to the area of the site (i.e. 1:1) whereas the gross floor area of the proposal is 2592m² (3.2:1).

[40] PO10 (in the Medium density living precinct) is concerned with setbacks "which are compatible with existing setbacks in the area". AO10 refers to a minimum set back of 6 metres from any road alignment. The setback proposed is less than that for both the front wall and balconies.

[41] The MDC, sets out the Purpose of the Code at 9.3.14.2 of the Planning Scheme will be achieved through a number of overall outcomes, including (e), (h)(ii) and (iii):

"(e) Development has a bulk, scale, form and intensity that integrates with the existing and intended neighbourhood structure for the area as expressed by zone, zone precinct and neighbourhood plan outcomes, and is consistent with:

(ii) its proximity to an activity centre, higher capacity public transport services, or other community facilities;

(h) Development is of a height that is appropriate to the strategic and local context and meets community expectations consistent with the following:

(i) 15 storeys in the Up to storeys zone precinct of the Higher density residential zone;

(ii) 8 storeys in the Up to 8 storeys zone precinct of the High density residential zone;

(iii) 5 storeys in the Medium density residential zone."

9.3.14.3.A sets out the Table of criteria for assessable development within areas covered by the Code. In relation to the MDC, the proposal does not comply with Acceptable Outcomes in relation to height (AO5), front set back (AO5), side set back (AO5), rear set back (AO5) building separation (at levels 3 - 5) (AO5), and site cover (AO14). PO5 provides that "development is (to be) of a bulk and scale that is consistent with the intended form and character of the local area ...". I agree with Mr Williamson that properly construed, this provision requires the assessment manager to take a prospective approach to what is "intended", having regard to the Planning Scheme viewed as a whole.

[42] At 3.11 of their trial submission, Mr Skoien and Mr Richardson refer to an observation of Judge Searles in a recent decision which deals generally with the issues covered above relating to setbacks, building height etc. His Honour was saying no more than that these provisions are to be considered by the Court as part of the overall assessment of the proposal against the whole of the Planning Scheme provisions that are relevant to the assessment.[1] Whether it supports the sweeping submission in that paragraph is doubtful. As Mr Williamson notes in his submission, the Acceptable Solutions referred to above in both the New Farm Plan and the MDC, are relevant to what the Council considers is the preferred way of complying with the planning scheme, and these relate to building height, setbacks, gross floor area, site cover, building height transitions, and are generally associated with Performance outcomes that focus on height and scale, building separation, community expectations and amenity including views to and from the river.

[43] As noted above, this is not to say the Acceptable Solutions are determinative, or mandatory or prescriptive to use the terminology in the jurisprudence. Conventionally, a proposal that complies with an acceptable solution will satisfy the performance outcome; but that does not of itself preclude a proposal that might comply with the performance outcome by another solution or solutions. If Norfolk could demonstrate that its proposal meets (for example PO1), despite not complying with AO1, there would be no conflict with that performance outcome.[2]

[44] As I have noted, Mr Buckley focuses on 7.2.14.1.2 (3)m, and I agree with him that this purpose for the New Farm Plan area does permit buildings of a greater height and scale in the area. However, when that provision is read as part of the whole of the relevant provisions in the Planning Scheme, it is clear to me that development may only depart from what is intended where there is both a community need and an economic need for the development. This is what Mr Williamson refers to as the exception to the rule.

[45] Norfolk also relies on PO1 in the New Farm Plan. The use of words such as "intended' and "anticipated" are again prospective in effect. Mr Skoien and Mr Richardson seek to gain comfort from the use of "predominantly" in the Medium Density Residential Zone Code, overall outcomes for development from 6.2.1.3(5) (b), and in the Purpose provisions of the New Farm Plan Code at 7.2.14.1.2.(6)(a).

[46] I accept that "predominantly" does not mean "exclusively". I do not accept that the word in the Medium Density Residential Zone Code (at 6.2.1.3(5)(b)) qualifies only "apartment style multiple dwelling". Properly construed it contemplates that development comprises "medium rise, medium-high density residential buildings of predominantly apartment style multiple dwellings, 3 to 5 stories in height" (my emphasis). The addition of the comma after "dwellings" does not add or detract from its clear meaning. To do otherwise is to take an overly pedantic and technical approach to construction.

[47] As can be seen from the extracts from the Planning Scheme set out above, the Medium density residential zone code refers (at 6.2.1.3(5)(d)) to the "protection of view corridors"; the New Farm Plan refers to "development of a height, scale, and form which is consistent with the amenity ... , community expectations ... intended for the relevant precinct ..."; it refers (in PO1) to development "of a height and scale and form that ... improves the amenity of the ... area ...", and is "aligned with community expectations about the number of storeys to be built ..."; is "designed to avoid a significant and undue adverse amenity impact to adjoining development"; and PO7 refers to development that "ensures new buildings (in the Medium density living precinct in the Plan area) maintain views to and from the river ...".

[48] The jurisprudence in relation to amenity and community expectations is well known and I will not repeat it here. Although amenity and community expectations may involve a consideration of the subjective views of people most affected by the proposal (here Ex 13 containing 11 statements mainly from owners, residents or occupiers of units in Kirribilli), ultimately the task for the Court is an objective assessment of impacts informed by the provisions of the Planning Scheme.

[49] By far the most impact on views of the river will be upon residents within the eastern units of Kirribilli. In my view, a fair and objective reading of the Planning Scheme would lead residents of Kirribilli to an expectation that the scheme strongly favoured development on the site of up to 5 storeys or 15 metres. Those community expectations would also be reasonably that a higher building e.g. the Platinum section on the boundary with Glenfalloch may be developed but only in quite defined circumstances e.g. a demonstration of community and economic need, and a building that did respond to the characteristics of adjoining building, as Platinum clearly does to Glenfalloch. Those reasonable members of the community would also note that the eastern side of Glenfalloch contains very few windows, therefore no real possibility of interference with existing views of the river.

[50] For the purposes of this analysis, I will concentrate on the statement of Mr Peter Jensen, which statement is behind Tab 5 in Ex 13. He and his partner Myra Poon (third Co-respondent by election, and her statement is behind Tab 8), reside in Unit 801 on the ninth level of Kirribilli. His unit was visited on inspection, and he permitted the visual amenity experts to visit his unit, take photographs and to assess the impact on his views to the river of the proposal. He also took his own photographs, some of which are incorporated into his statement. He decided in 2009 to purchase an apartment in New Farm. It is helpful to quote from his statement which was not challenged:

"2. I considered a number of apartments in New Farm, Unit 801/150 Oxlade Drive stood out because of the amount of light it received, the views it enjoyed, and the fact (as I saw it) that those features would not be built out in the foreseeable future. I have subsequently married, and now live in Unit 801 with my wife ...

4. In deciding whether to purchase the apartment, I considered what might eventually be built at 140 - 142 Oxlade Drive. The vendor's real estate agent, Mr Peter McDonald, said a town plan had been introduced in 2000 which imposed a five-storey limit on buildings along the river side of Oxlade Drive, although a developer could ask the Brisbane City Council for a "relaxation".

5. The statement that there was a general five-storey limit was consistent with my observations of Oxlade Drive. Most of the buildings on the river side of Oxlade Drive were five storeys or less. The only buildings on Oxlade Drive to the east of Kirribilli that were more than five storeys appeared to have been built prior to 2000. The only buildings on Oxlade Drive to the west of Kirribilli that are more than five storeys are Platinum (which I have since learnt was built in approximately 2007) and Glenfalloch. Platinum is to the immediate east of Glenfalloch which is fifteen storeys. Platinum consists of two towers. The tower closest to Glenfalloch is seven storeys. The tower beside that is five storeys. The rapid return to five storeys - from fifteen to seven to five - suggests to me that any development on 140 - 142 Oxlade Drive would make a proportionately rapid return to five storeys if all other things were equal, i.e., any such development would be approximately six storeys if all other things were equal. However, all other things are not equal. Firstly, there are almost no windows on the eastern side of Glenfalloch apart from a communal stairwell. The Platinum development therefore did not affect the light, views, privacy, etc of the apartments on the eastern end of Glenfalloch. In contrast the apartments on the easterly end of Kirribilli have expansive windows on the east, and they enjoy all the consequential amenities. Secondly, the Platinum site is larger than 140 - 142 Oxlade Drive.

6. For those reasons, I expected any future development at 140 -142 Oxlade Drive to be confined to five storeys".

[51] Both experts agreed that the proposal would affect views to the river. Clearly, there would be impacts on views of the river from a 5 storey building, so the experts concentrated on the impact on views from levels 7 - 11 of Kirribilli. Mr Mack acknowledges in the joint experts report that the views from the units which have balconies have almost 360º views, which includes Mr Jensen's unit.

[52] Mr Mack's opinion (simply put) was that the impact on views of residents from levels 7 - 11 was minor. Having considered the evidence (including the photographs) and visited Mr Jensen's unit and another on level 7 during the inspection, I completely agree with the submissions made by Mr Job at [38] of his trial submission:

"Presently, residents within the eastern units of Kirribilli enjoy impressive views to the east through the bank of windows that line the building's eastern edge. The views take in the bend of the River as it flows east near Mowbray Part to north at Hawthorne. The views are pleasant throughout the day, and also at night. The expansiveness and attractiveness of the views is illustrated in Mr Brown's photographs (ex. 21). Mr Mack ultimately agreed that the view depicted in Figure 11 of the JER reflected the view from about the centre of the living area, near the "mouth" of the hallway. It is therefore representative of the view that a resident obtains every time he or she enters the unit."

[53] Mr Browns' photographs show accurately the expansiveness of the views and their quality. It is axiomatic, that even with a 5 storey building on the site, views from the residents on the eastern side of Kirribilli up to level 6 will be lost to some extent. Reliance on some general observations of Mr Buckley about loss of view generally, referred to at 3.40 of Mr Skoien and Mr Richardson's submission is not particularly helpful. By the time he wrote his trial report (Ex 8), Mr Mack retreated from the simple description of minor (therefore acceptable) impact on views, to this remarkable observation:

"6.5.3 The proposed development will recalibrate part of this 360 degrees view".

[54] Mr Mack was cross-examined at length by Mr Job on this topic. The cross-examination was prolonged by Mr Mack's apparent inability to make proper concessions. The opinions he expressed in the JER that the view impacts (of the river) on residents such as Mr Jensen would be minor, or that their views would be "recalibrated" in his trial report simply crumbled in cross-examination.

[55] In Ex 23, Mr Job had Mr Mack draw (in rough terms) the outline of the built form on Figure 11, a photo taken by Mr Mack showing the view from Mr Jensen's unit across the site. Exhibits 24 - 28 are copies of the Locality Plan from the Revised Plans, on which Mr Job had Mr Mack sketch view lines from various parts of the unit on level 9. He conceded that his Figures in the JER, upon which he based his opinion, did not represent actual views because he had digitally pasted a number of photographs together in order to obtain a panorama. There is no suggestion that he did this for any improper reason, nevertheless he had to concede (albeit a little reluctantly) that the representations were not accurate. In his trial report, in Figure H, and using a blended photograph, he attempted to justify his opinion (in Figure 1) by digitally removing the part of the view that will be removed by built form from Mr Jensen's unit. What he excludes from Figure 1, is any removed sky view, thus leading to a completely misleading impression of the extent of impact.

[56] As he had not attempted to model the view impacts (as he had done with streetscape and character), Mr Job had him draw in the view lines on a copy of the Locality Plan. This evidence again considerably undermines the evidence of Mr Mack on this discrete issue.

[57] I accept the evidence of Mr McGowan, that the impact of the proposal on views to the river of residents from levels 7 - 11 will be unacceptable, unwelcome and significant. I reject Mr Mack's evidence to the contrary.

[58] As to privacy and overshadowing, and loss of light, I think the use of privacy screens on the western side of the upper levels and other treatments, to be undertaken by Norfolk do not lead to unacceptable impact, except to note that on my interpretation of the Planning Scheme, reasonable members of the community would not expect a building of this height on this site.

[59] Contrary to the submission of Norfolk, I hold that the proposed development conflicts with the Planning Scheme at all levels as discussed above, and the conflict is significant. I find that because of its height, and scale in particular, but also its bulk, the proposed development will present not as medium density, but as a high density high rise building (see 6.2.1.4(3)(c)) of the High density residential zone code), which is inconsistent with the amenity and character of the locality, and with community expectations and with the intended outcome for the medium density living precinct in the New Farm area. It will not maintain views to and from the river to an acceptable level, nor does it establish an acceptable relationship, or transition between it and Kirribilli to its west and Edgewater to its east. To use the terminology of the Medium density residential zone code, it fails to respond appropriately to adjoining buildings.

[60] Norfolk relies upon the evidence of Mr Duane to support its submission that there is a community and economic need for the proposed development. Mr Duane conceded, as he had to, that a 5 storey building on the site (which would be Code assessable), could provide between 5 to 8 units depending on their configuration. He concedes that the proposal will involve an additional 10 to 12 people being accommodated on the site. By reference to a provision in the MDC, Mr Buckley appeared to accept that maximisation of infrastructure involves considerations of much larger populations than are under consideration here.

[61] I accept the submission made by Mr Williamson at 126 of his trial submissions:

"In truth, the Appellant's need case loses any genuine force once it is appreciated that there is no evidence to suggest that:

(a) the Planning Scheme makes insufficient provision, either in New Farm or in the inner northern part of Brisbane generally, for medium density development to accommodate predicted population growth to the year 2031 - supply and demand are tracking in line;

(b) there is a market where there is insufficient competition, mix or choice - table 4.3 and 4.4 of Mr Duane's report suggests otherwise; and

(c) the proposal involves directing population growth away from identified growth nodes and a selected transport route corridors (Fortitude Valley and Bowen Hills - these areas are located in the inner north Brisbane area and are earmarked as growth areas)."

[62] As Mr Duane acknowledged, a compliant proposal on the site, will provide choice, as well as for what he described as "high end of the market" need for 3 bedroom units in this highly desirable location, albeit on a smaller scale. Clearly the proposal will respond to some need for 3 bedroom units albeit to a very minor extent, but given the degree of conflict focussed on height, bulk and scale, the need established is not sufficient to justify approval notwithstanding conflict.

[1] Alford & Ors v Brisbane City Council [2015] QPEC 54.

[2] Main Beach Progress Association v Gold Coast City Council & Anor [2008] QPEC 37; [2008] QPELR 675; K Page Main Beach Pty Ltd v Gold Coast City Council v Ors [2011] QPELR 406.