Platinum Design Architects v Brisbane City Council [2016] QPEC 58

[4] It is uncontentious that the development application was made and determined pursuant to City Plan 2014. The land is located within a large precinct in the Low-medium-density-residential zone ("LMDR zone").[5] Accordingly the LMDR zone code applies. It is uncontroversial that it is within the 2 or 3 storey mix zone precinct.[6] The land is also within the Bulimba district neighbourhood plan area and subject to the Dwelling house character overlay and the Traditional building character overlay.[7] Accordingly the appropriate overlay codes apply. The proposed development is designed to have a maximum height of 9.5 metres and rise to three storeys above natural ground level. It has a site cover of 56.8 per cent.[8] It is designed so that it presents to the street as a two storey development with the third storey behind it at the centre of the land. Traditional design elements give the superficial appearance of connected character dwellings at the front of the land with car parking accessible underneath.[9]

[5] The respondent asserts that the proposed development, being three storeys, conflicts with City Plan 2014. The respondent contends that the third storey component of the proposed development and the extent of excavation contemplated by the proposed development creates significant adverse impacts by way of:[10]

3. The failure of the proposed development to compliment the traditional character of Dover Street;

4. Inconsistency with the streetscape local context and intent for the area; and

5. The failure to provide a sensitive transition to adjoining sites.

[6] The appellant asserts that the design issues identified above do not constitute conflicts with City Plan 2014 and submits that the proposed development is appropriately located having regard to nearby public transport nodes. Alternatively numerous largely spurious or inconsequential grounds are nominated. The appellant submits that these grounds are sufficient to justify approval of the proposed development despite any conflict with City Plan 2014.[11]

[7] The appeal is to be determined pursuant to the provisions of the Sustainable Planning Act 2009 ("SPA"). The decision must not conflict with a relevant instrument unless there are sufficient grounds to justify the decision, despite the conflict.[12] A relevant instrument includes a planning scheme.[13] The appeal is by way of hearing anew.[14] The appellant bears the onus of establishing that the appeal should be allowed.[15]

[8] At the heart of the alleged conflicts with City Plan 2014 is whether or not the third storey of the proposed development can be justified under provisions which provide for more intense development in proximity to public transport. In this regard, Element 5.8 of the Strategic framework provides for Brisbane's Growth Nodes on Selected Transport Corridors. Specific outcome, SO1 states:

"Growth Nodes on Selected Transport Corridors provide opportunities for a range of more intense urban form, mix of land uses and activities that are tailored to the locality and catchment's community needs in accordance with the applicable land use strategies."[16]

The nearest Selected Transport Corridor is the Brisbane East Rail transport corridor and the nearest Growth Node is the Morningside railway station.[17]

[9] In the LMDR zone code it is relevantly stated:

(a) Development for a residential building is of a height, bulk, scale and form which is tailored to its specific location and to the characteristics of the site within the Low-medium density residential zone and the relevant zone precinct.

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

(ii) the site characteristics, including the shape, frontage, size, orientation, slope, and nature of adjoining dwellings.

(c) Development provides for setbacks which suitably buffer a residential use from an activity in an adjoining non-residential zone.

(d) Development supports a subtropical character by ensuring that:

(i) the building form, spacing, orientation and design ensure dwellings are well designed and sensitive to the city's climate;

(ii) residents on the site, as well as residents of existing or future dwellings on adjoining sites, have sufficient privacy and good access to daylight, sunlight and breezes to enable the intended use of indoor and outdoor spaces."[18]

[10] In the 2 or 3 storey mix zone precinct where the land is situated, overall outcomes include:

(a) Development comprises a mix of low-medium rise, low-medium density residential buildings:

(i) of no more than 2 storeys, or of no more than 3 storeys in height where located within easy walking distance of a public transport node;

(ii) located on suitable sites, in accessible locations, near to public transport and larger centres or key destinations.

(c) Development for a residential use other than a dwelling house is of a scale and bulk that co-exists comfortably with an adjoining dwelling house, even though it might have a bulk and scale greater than a dwelling house." [19]

[11] The Bulimba district neighbourhood plan code also includes within its purpose a statement that "Development is of a height, scale and form which is consistent with the amenity and character... intended for the relevant precinct...."[20]

[12] In the Traditional building character (design) overlay code, there are two Performance outcomes which are particularly relevant. PO3 states:

"Development has a building form and bulk which complements the predominant traditional scale of a dwelling house constructed in 1946 or earlier nearby in the street."[21]

"Development provides roof forms which complement traditional roof styles of dwelling houses constructed in 1946 or earlier that are located nearby in the street in terms of roof pitch and proportion."[22]

[13] There are a number of provisions of the Multiple dwelling code which deal with height being consistent with the street scape. Although these provisions are identified by the respondent as areas of conflict with City Plan 2014, I am of the view that the height of the proposed development in metres is not of concern. Other provisions that refer to the presentation of buildings are too general in their terms to offer any meaningful guidance.

[14] As noted above, the decision of the court must not conflict with City Plan 2014 unless there are sufficient grounds to justify the proposed development despite the conflict.[23] The term "grounds" is defined in Schedule 3 of SPA in the following terms:

2. Grounds does not include the personal circumstances of an applicant, owner or interested party."

[15] The approach to be undertaken by the court in examining whether conflict with the planning scheme arises and whether there are any grounds to justify the proposed development despite the conflict was recently summarised in the following terms:

"In Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) the Court of Appeal endorsed the three stage test which had previously been pronounced in Weightman v Gold Coast City Council which requires the court to:

1. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
2. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict."

The test now applies with the term "grounds" as defined above being substituted for the former term "planning grounds"." [24]

[16] The most fundamental conflict with City Plan 2014 asserted by the respondent is that set out in paragraph (7)(a)(i) of the LMDR zone code which requires that the proposed development be of no more than 2 storeys unless it is located "within easy walking distance of a public transport node."[25]

[17] Regrettably, the term "public transport node" is not defined in City Plan 2014 which, given the extensive gestation process which is mandated prior to a planning scheme becoming law,[26] is something of a mind-boggling oversight. The respondent submits that the term should be interpreted as referring to a Growth Node on a Selected Transport Corridor consistent with Element 5.8 of the strategic framework. If this interpretation is correct, the nearest public transport node is Morningside railway station which is, uncontroversially not within easy walking distance of the proposed development. Conversely, the appellant submits that there are four inbound and five outbound bus stops within approximately 400 metres of the land which offer frequent services to different parts of the city and that accordingly, the proposed development is located within easy walking distance of a public transport node.[27]

[18] A node has many definitions depending on its context. The definition most appropriate to the context before me is "a centring point of component parts."[28] It is clear that a bus stop or even a choice of discreet bus stops does not constitute a public transport node.

[19] Having regard to the applicable principles of statutory interpretation, as discussed by Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council & Ors[29] that planning schemes "need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes", it is apparent that the reference is intended to be to a Growth Node on a Selected Transport Corridor. Accordingly, the proposed development is not located within easy walking distance of a public transport node and, being three storeys in height, this represents a significant conflict with City Plan 2014.

[20] Turning to character and design issues. Two architects gave evidence, Ms Anderson who was called by the appellant and Mr Scott, who was called by the respondent. The proposed development contemplates significant excavation in order to lower it. Accordingly Mr Scott concedes that it is technically only two storeys at the front, close to Dover Street.[30]

"...any exceedance in the height of the proposed development in the number of storeys only exists in the middle of the proposed development and it meets the absolute height requirements of Brisbane City Plan 2014 (i.e. 9.5m above ground level) and ... there are no significant character impacts that arise from the three storey component because the third storey component is not prevalent when viewed from the streetscape."[31]

[22] Mr Scott was of a very different view, he stated:

"...the front of the revised proposal is still closer to the street, wider and taller than its neighbouring buildings and the 3 storey height of the proposal, back from the street front, will be visible from some vantage points in the street such that an interested viewer would be aware that the bulk and scale of the proposal is not compatible with the predominantly traditional character of the street, despite changes to wall cladding materials and finishes, steps in the side walls and other measures the design architect has employed to try to control the scale and bulk of the proposal."[32]

[23] Mr Scott was particularly critical of the roof design. He observed:

"In side elevation the roofs (sic) step in a haphazard way to accommodate the large floor area of the proposal, stepping up the site as the ground level rises, resulting in a form incompatible with the predominantly traditional character of the street."[33]

[24] To demonstrate this, Mr Scott prepared a photomontage which showed a collection of roof forms which was entirely out of character in terms of the streetscape when the proposed development was viewed higher up on the opposite side of Dover Street.[34] Mr Scott further stated:

"...this proposal is bigger, more bulky and more box-like than anything in this street and is not compatible with the very strong traditional character of the street.

The detailed design of the front balconies and gables, side elevation wall steps and changes in material and rear elevation roof forms do not sufficiently break up the scale and bulk of this proposal to make it compatible with the very strong traditional character of the street."[35]

[25] I accept the evidence of Mr Scott and his criticisms of the proposed development from an architectural perspective. Furthermore, the substantial excavation of the land to ensure that the proposed development does not exceed prescribed height limits means that unit 3 at the rear of the proposed development is substantially below ground level.[36]

[26] Accordingly, the proposed development does not comply with paragraph (5) of the LMDR zone code because it is not of a bulk, scale and form which is tailored to its specific location and the relevant zone precinct. Furthermore, it does not have a bulk that responds to the nature of adjoining dwellings and it does not, so far as unit 3 is concerned, provide good access to daylight, sunlight and breezes to enable the intended use of indoor and outdoor spaces. Similarly, there are significant conflicts with PO3 and PO7 of the Traditional building character (design) overlay code. Firstly, the proposed development does not have a building form and bulk which compliments the predominant traditional scale of a dwelling house constructed in 1946 or earlier nearby in the street, and secondly it does not provide roof forms which compliment traditional roof styles of dwelling houses constructed in 1946 or earlier located nearby in the street in terms of roof pitch and proportion for reasons expressed by Mr Scott.

[27] Each of these conflicts arises as a consequence of the appellant attempting to accommodate a third storey in the proposed development in circumstances where there is no warrant for it in City Plan 2014.

[28] As noted above, the appellant nominates a number of grounds which it submits justify approval of the proposed development despite the significant conflict which I have identified with City Plan 2014. These are:

"(a) any exceedance in the height of the Proposed Development in the number of storeys only exists in the middle of the Proposed Development and meets the absolute height requirements of City Plan 2014 (i.e. 9.5m above ground level);

(b) there are no significant character impacts that arise from the three storey component of the Proposed Development;

(c) there are no significant amenity impacts that arise from the three storey component of the Proposed Development

(d) a compliant development involving either a detached house across both lots or two houses on the two lots comprising the subject land would involve height, bulk, scale, site cover and setbacks that are equal to, or greater than, the Proposed Development;

(e) there are three storey multiple dwellings that have been approved and constructed in the street and the local area;

(ii) is an appropriate response to the steep topography of the site.

(g) the absolute height and setbacks of the Proposed Development is consistent with the heights of adjoining dwellings;

(h) the third storey component of the Proposed Development:

(i) does not result in any additional relevant density of the development; and

(ii) enables the Proposed Development to minimize impacts from the proposed density of development in respect of parking and setbacks;

(i) the Proposed Development involves units and facilities that meet the requirements for Ageing in Place (notably reasonably sized apartments, a lift, generous parking, inner-City location and close proximity to a wide range of desired services);

(j) the Proposed Development will involve an efficient use of existing infrastructure;

(k) the Proposed Development would be located in close proximity to high frequency public transport (including different modes of transport);

(l) the Proposed Development would involve a positive contribution to the character of the area and the streetscape, particularly in light of the poor contribution to such matters made by the existing dwelling on the subject land;

(m) the Proposed Development accommodates the topography of the subject land, allowing for off-street parking with secure garage setback from Dover Street, rather than any built to boundary carports or garages;

(n) the Proposed Development has been designed to allow for casual surveillance and activation of the streetscape; and

(o) the Proposed Development provides landscaping by way of deep planting that exceeds requirements by 39% (112.6m² rather than 81m²) and exceeds communal open space requirements by 50% (62m rather than 40.5m)."[37]

[29] In the context of the legal definition of the term "grounds" quoted above, it is evident that many of the purported grounds are spurious or inconsequential. I will nonetheless deal with them in turn:

(a) this does not come within the definition of "grounds" in SPA;

(b) having regard to the evidence of Mr Scott, which I accept, this ground is not made out;

(c) having regard to the evidence of Mr Scott, which I accept, this ground is not made out;

(d) to the extent that this is a legitimate ground, it is a weak ground having regard to the extent of the conflict with City Plan 2014;

(e) while it is true that evidence was placed before me of other three storey multiple dwellings which had been approved and constructed in the vicinity of the proposed development, it was not submitted to me that the planning controls on the land had been overtaken by events. In my view they merely "signify a diversion from the planning intent for the district."[38] Given the fact that City Plan 2014 is a contemporaneous statement of planning intent for the land, it cannot be submitted, and indeed it was not, that the planning intent for the land has been overtaken by events. There is no merit in this ground;

(f) to the extent that this is indeed a ground, it is not made out given the evidence of Mr Scott, which I accept;

(g) this does not appear to come within the definition of "grounds" in SPA, and if it does it is an incredibly weak ground;

(h) this ground is not made out given the evidence of Mr Scott, which I accept;

(i) just because the proposed development contemplates large units with a lift and on site parking does not mean that this ground should be accorded any particular weight;

(j) the respondent submits that this ground is not made out at all as the proposed plot ratio for the land pursuant to City Plan 2014 is 0.75,[39] whereas the plot ratio of the proposed development is "just over one".[40] Accordingly it is submitted that the proposed development seeks to utilise infrastructure at a density in excess of what is planned for in City Plan 2014. To the extent that it is asserted that this is an efficient use of existing infrastructure, I find this ground particularly weak;

(k) given the number of bus stops in the vicinity and the frequency of their services, this ground is relevant and meritorious;

(l) to the extent that this is a ground, it is a particularly weak one given the design issues identified by Mr Scott in his evidence, which I accept;

(m) to the extent that this is a ground it is not a strong ground;

(n) this is a neutral issue as it merely demonstrates compliance with a design requirement in the planning scheme;

(o) to the extent that this is a ground it is a particularly weak ground.

[30] The conflicts with City Plan 2014 identified above are significant. The legitimate grounds in favour of the proposed development, as a whole are, on balance insufficient to justify approving the development application in its current form, notwithstanding the conflicts.

[31] The third storey of the proposed development brings about a direct conflict with the LMDR zone code. In seeking to accommodate such a large development on the land numerous other conflicts with provisions addressing the intended bulk and scale of development on the land arise. The legitimate grounds in favour of the proposed development, as a whole, are on balance, insufficient to justify approving the proposed development notwithstanding the significant conflicts with City Plan 2014.

[6] Written Submissions on behalf of the appellant, para 2.13(b); Written Submissions on behalf of the respondent, para 25(b).

[24] Kissane & Ors v Brisbane City Council [2016] QPEC 57 at [28].

[27] Written submissions on behalf of the appellant, para 3.17-3.28 and Exhibits 28 and 29.

[28] Macquarie Concise Dictionary, Fourth Edition 2006.

[29] [2014] QCA 147; (2014) 201 LGERA 82 at [56].

[38] Stappen v Brisbane City Council [2005] QPEC 3; [2005] QPELR 466 at [34].