VG Projects Pty Ltd v Brisbane City Council [2016] QPEC 15

[2] The issues in the appeal generally relate to the height, bulk and scale of the proposal, its consequent impact, particularly in relation to character and amenity (including visual amenity) and the sufficiency or otherwise of any grounds to justify approval in the event of conflict being found with the applicable planning scheme provisions. As a result of mediation, the parties agreed that there are no traffic, noise or wind impact issues which warrant refusal of the application.

(a) is on the southern (river) side of Oxlade Drive

(b) has a frontage to parkland, which separates its rear boundary from the river

(d) is regularly shaped and slopes gently towards the river

(e) is currently occupied with 3 detached houses, which would make way for the proposal, if approved

[4] The proposed multi-unit development would be composed of:

i) 65 units (with a mix of 2, 3 and 4 bedrooms);

[5] The proposed building is of a substantial size, featuring:

iv) 9 storeys of units (ground storey plus 8 levels) plus a roof deck;

viii) a plot ratio of approximately 3.75 times the site area

[6] It is fair to describe the proposal, in general terms, as a high rise, high density residential development.

[7] The proposal was amended for the hearing, including by increasing the setbacks of the top 2 levels so as to reduce their visibility, prominence and perceived height.

(a) landscaping and a building entry statement along the northern façade to address Oxlade Drive;

(b) a 1.8 metre wide strip of deep planting along part of the eastern boundary;

(c) landscaping along the southern façade to address Merthyr Park;

(d) a landscaping strip along the southern elevation of level 2;

(e) a landscaping strip along the western, northern and eastern facades of level 7; and

(f) a landscaping strip along each façade of level 8 and the roof level.

[9] The site lies in the inner city suburb of New Farm, which is an interesting and diverse inner city suburb. The planning documents speak of the suburb's "characteristic diversity of built form and village feel".

[10] That part of New Farm within which the subject falls includes both sides of Oxlade Drive from the bowls club to the intersection with Sydney Street. This part of Oxlade Drive is not a straight road. It has two changes in alignment, being:

(ii) at about the western corner of the development described as Kirribilli.

The second change in alignment is more pronounced than the first and impacts on the extent to which buildings located west of a building called Kirribilli are able to be viewed from a location which is proximate to the subject site. The change in alignment has the potential to obscure views from the site to development located to the west of Kirribilli.

[11] Oxlade Drive is a tree lined street. Consequently, as Mr Powell pointed out, pedestrians views of the proposal would, depending on their position, be filtered by vegetation.

[12] Development in the locality is predominantly low to medium rise residential development, although there is also some high rise development. There is a diversity in architectural styles.

(a) was commenced pursuant to s. 461 of the Sustainable Planning Act 2009 (the SPA) and is to be determined under the provisions of that Act;

(c) must be decided based on the laws and policies applying when the development application was made (in this case City Plan 2000), although the Court may give weight to any new laws and policies that the Court considers appropriate (in this case City Plan 2014).

[14] The appellant bears the onus in establishing that the appeal should be allowed.

(a) assess the application for the Proposed Development in accordance with s 314 of the SPA; and

(b) decide the application for the Proposed Development in accordance with ss 324 and 326 of the SPA.

[16] Pursuant to s 326 of the SPA the decision to be made in this appeal must not conflict with the Council's now superseded planning scheme City Plan 2000 unless there are "sufficient grounds" to justify that decision despite the conflict. The word "Grounds" is defined in Schedule 3 of the SPA in respect of s 326(1) as:

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

[17] It has already been noted that the development application was made during the life of City Plan 2000. Under that plan the site was within:

ii) the New Farm and Teneriffe Hill Local Plan (the Local Plan), and

iii) the Medium Density Living Precinct within the Local Plan.

[18] A Multi-unit dwelling is listed as Impact Assessable (generally appropriate but only where complying with the Residential Design - Medium Density Code) in the MDRA. The level of assessment is not altered by the Local Plan.

[19] The MDRA is the second highest density of the 5 "Residential Areas" for which City Plan 2000 provided, in order to reflect different living environments encouraged in different parts of the City. The stated intent of the MDRA is as follows:

Medium Density Residential Areas are located in near City locations with good access to public transport and centres. Medium Density Residential Areas will accommodate single unit dwellings and multi-unit development up to 5 storeys.

On steeply sloping sites development will 'step down' the slope. Development will have a maximum gross floor area of 80% of the site area.

[20] The Desired Environmental outcomes (DEO's) for the MDRA include the following

1. Medium density living environments predominantly comprise medium rise, medium density buildings of no more than 5 storeys.

2. The Area has a mix of dwelling types and sizes at different levels of affordability with adequate safety, privacy, quiet and comfort. New residential developments are well designed and sensitive to the City's climate and take advantage of attractive views and aspects and address the street.

[21] This may be contrasted with the intent for the High Density Residential Area (HDRA), as follows:

High Density Residential Areas are located close to the City with very good access to public transport and facilities. High Density Residential Areas are in locations with outstanding views to the Central City or Brisbane River.

Development will be to a maximum plot ratio of 1.5. Development will be no higher than 10 storeys and will address the street.

[22] The proposal enjoys a location with good access to public transport and a centre and is obviously otherwise well positioned for a multi-unit development. It also offers a mix of dwelling sizes, addresses the street and takes advantage of attractive views and aspects. At 9 storeys however, it is much taller than is contemplated in the MDRA Intent. It also has a plot ratio significantly greater than is referenced in the Intent provisions of both the MDRA and the HDRA.

[23] That is not however, necessarily fatal. DEO 1 of the MDRA refers to what the living environment 'predominantly' comprises. Further, the statements of Intent must be read in conjunction with other provisions of the planning scheme, to see what scope exists for development, on a particular site, which exceeds the height and plot ratio referenced in the Intent.

[24] The Residential Design - Medium Density Code (the MDC) applies in assessing a material change of use and/or building work for a multi-unit dwelling in a MDRA. The stated purpose of the MDC includes as follows:

The purpose of this Code is to effectively manage impacts of the new development on neighbours while:

• encouraging attractive buildings of a size, intensity and appearance consistent with the Medium Density Area

• facilitating development that is up to 5 storeys in height, spread across the site and orientated towards the street

[25] Again, in terms of size, the proposal does not sit comfortably with this statement of purpose although, for the reasons stated later, it is the provisions of the LP in relation to height and bulk on which attention should ultimately focus.

[26] The MDC contains 29 performance criteria and corresponding acceptable solutions. The latter represent the preferred way of complying with the performance criteria. An applicant can however, propose an alternative solution to meet the relevant performance criterion.

[27] It was alleged variously by the respondent and first to fourth co-respondents by election that the proposal fails to meet the following performance criteria:

• P2 - Building size must be consistent with the intentions for the Area

• P3 - The appearance of the building must be reduced by design elements

• P5 - Building elevations must visually balance the height of the building

• P15 - Habitable spaces must not directly overlook dwellings on adjacent land

• P16 - Development must not significantly reduce daylight to open space and habitable rooms in adjacent development

- Dwellings must receive daylight and allow passage of cooling breezes through habitable rooms

[28] Section 5.5.3 of City Plan 2000, which applies to the MDRA and the HDRA, provides, in part as follows:

Some Local Plans contain Codes. These Codes provide additional and/or alternative Performance Criteria and Acceptable Solutions to the Codes in Chapter 5 and take precedence over the Codes in Chapter 5.

[29] Similarly, the Local Plan provides as follows:

This Local Plan contains specific additional local planning requirements. Where it conflicts with the requirements of the City Plan, this Local Plan prevails.

[30] The Local Plan does include a Code (the LPC) which, relevantly, contains performance criteria and corresponding acceptable solutions in relation to building height and gross floor area. Those provisions are different from P2 of the RDMC. It is the provisions of the Local Plan and, in particular, the relevant provisions of the LPC, on which attention should focus in relation to the issues of building height and size[2].

[31] Insofar as the other provisions of the MDC are concerned:

(i) I accept that the appearance of building bulk would be reduced by design elements and that the proposal incorporates features intended to help balance the height of the proposal, but, for the reasons discussed alter, the height and bulk of the proposal remain inappropriate

(ii) It was ultimately not contended on behalf of the first to fourth co-respondents by election that overlooking (as with impacts on views and the impact of the front setback) warrants refusal of the application.[3]

(iii) Reduction of daylight remained an issue for the 1st to 4th co-respondents by election. There are 3 acceptable solutions to P16. They relate to side setbacks (A16.1), the dimensions of built-to-boundary walls (A16.2) and rear setbacks. In assessing the impact of the proposal in this respect it is appropriate to have regard to the extent of impact relative to a proposal which meets the acceptable solution (and so is taken to meet the performance criterion).

In his statement of evidence, Mr Powell relied on shadow diagrams to observe as follows:

With regard to overshadowing, Figures 11 to 16 (Vol. 2) demonstrate that the overshadowing impacts of the proposal, over and above existing and deemed-to-comply shadowing impacts, are likely to be largely limited to the roof areas of adjacent buildings. The earlier proposal (prior to the amendments dated 13th July 2015), also achieved this, but the increased upper level setbacks of the revised proposed have reduced impacts further.

...because of the - the site's location on the southern side of Oxlade Drive, it is unlikely to cause any significant overshadowing to the northern side, the lower density residents in the north. To the south, because of that copse of vegetation, the proposal is unlikely to significantly exacerbate the overshadowing that would otherwise be caused by a five-storey building and that vegetation combined. And in terms of the - the side properties, the figures in my - in volume 2 of my statement broadly demonstrate that the impact of overshadowing over - over a five-storey building are likely to be predominantly confined to the rooftop areas of the adjacent buildings.

Counsel for the first to fourth co-respondents by election was critical of the appellant's attempts to deal with this issue. He submitted as follows:

"101. The final set of shadow diagrams produced were included in Mr Powell's trial report. Those diagrams demonstrated that:-

(a) the proposed development would have increased shadow impacts over and above a compliant building on Merthyr Park in winter at 12 noon; and

(b) the proposed development would have increased overshadowing impacts, over and above a compliant development, at 3pm in summer in respect of Ms Wood's house. This diagram demonstrated that the proposed development would shadow both of Ms Wood's balconies at 3pm in summer, whereas a compliant development would not.

102. In addition to the above, it is submitted that it is noteworthy that:

(a) Mr Powell did not produce the shadow diagrams himself;

(b) Mr Powell did not produce a shadow diagram for the afternoon winter period for the development proposal before the Court. This was despite the fact that Mr Powell produced both morning and afternoon diagrams for the summer;

(c) the afternoon shadow generated by the proposed development was shown to be the shadow that would generate the greatest overshadowing impact on Ms Wood's house (in the previous versions of the diagrams); and

(d) Mr Powell conceded in cross-examination that there were differences in the diagrams presented in the development application as compared to the joint report and his trial report

Whilst Mr Powell did not himself prepare the shadow diagrams, his evidence, which I accept, is that he checked them on the model "and to my mind the latest ones are the appropriate angle of incidence".

Whilst he did not produce a shadow diagram for a winter afternoon, his evidence was that the summer 2 pm diagram (which was produced) would be the closest approximation to that.[5]

Mr Powell acknowledged that the shadow diagram for a summer afternoon shows increased shadow impacts for the adjacent Wood residence (compared with a 'complaint' building), but observed that the shadowing from the Wood house itself would cover their rear balcony and opined that, with a shallower setting angle, the winter afternoon shadow would be "somewhere back" from the summer afternoon shadow.[6]

Whilst the proponent could have been more thorough in dealing with the issue, I am nevertheless satisfied, of Mr Powell's evidence, that there is compliance with P16.

(ii) development principles, which include planning goals and planning principles

The planning goals include the following (adopting the numbering from the Local Plan):

3. Encourage the retention of New Farm's characteristic diversity of built form and village feel

4. Ensure that infill development and redevelopment is compatible with New Farm's established character

8. Minimise significant adverse impacts from residential and non-residential development

[33] The proposal would provide for some increase in population. Whether it is in a building of too great a height, size and bulk is dealt with later. It would provide for that increase by adding to the unit component of the mix of housing and by adding units of varying sizes. Its impact on character and amenity is considered elsewhere.

[34] The Local Plan states that development should support the achievement of the planning principles. Those principles relate to matters which include character and sense of place. The desired outcomes for that planning principle are as follows:

"1. The area is distinctively New Farm, attractive and appropriate to its environmental and cultural content

2. The built form promotes comfort and is of a human scale"

The principles in support of those outcomes include

"4. Development should be compatible with, and appropriate to, its physical, historical and cultural setting".

The second of those outcomes and the fourth principle were controversial, given the height, bulk and scale of the proposal.

[35] Greater guidance on the intended height, bulk and scale of development in this part of New Farm is gained from the more detailed planning for different precincts. As has already been noted, the subject site falls within the medium density living precinct (MDLP), the intent for which includes the following:

"It is intended that this precinct be used predominately for medium density residential use, taking advantage of the high levels of accessibility and visual amenity that characterise the land in this area. Where possible, development proposals should provide visual and physical links to the river".

[36] The proposal is a residential use, which takes advantage of the high levels of accessibility and visual amenity on offer, particularly the visual amenity provided by the river. It is not fairly characterised as medium density, but that is not necessarily fatal, since the intent speaks only of what is to predominate.

[37] The LPC contains the most detailed guidance in relation to building height, size and bulk in the following provisions.

maintaining a visual relationship with other buildings in the vicinity

A1.1 Building height is no more than 5 storeys,

any proposal on the site is not more than the height of the demolished heritage place

P2 Building size and bulk must be consistent with the medium density nature of the locality

and retain an appropriate residential scale and relationship with other precincts in the plan area

A2.1 Gross floor area does not exceed the area of the site

[38] The proposal is obviously very greatly at variance to acceptable solutions A1.1 and A2.1. In this regard it is almost twice as high as A1.1 provides and has more than three times the plot ratio in A2.1. Whilst, under City Plan 2000, the acceptable solutions represented the preferred way of complying with the Performance Criteria[7], departure from an acceptable solution does not, of itself, establish conflict with the corresponding performance criterion. That the parameters in A1.1 and A2.1 are incorporated as acceptable solutions only means that there is an opportunity for an applicant to seek to establish that a proposal of a greater height and/or gross floor area nevertheless meets the relevant performance criteria. In such circumstances reasonable expectations must admit of at least the possibility of development of some greater height/density. There is however, nothing in either of the performance criteria which gives any encouragement to the vicinity or locality transitioning to a high rise/high density built environment.

[39] Whilst the height of the proposal would have some impact on some views, it was not seriously contended that the proposal is in conflict with the first limb of P1 and I am satisfied that it is not. It was the second limb of P1 and the whole of P2 which were the focus of debate.

[40] It was contended, on behalf of the respondent that the proposal is not in conflict with these parts of the LPC, because the height, bulk and scale of the development nevertheless meets the performance criteria, particularly having regard to the other buildings in the vicinity (for P1) and building size and bulk in the locality (for P2).

[41] P2 does not specifically refer to the provisions of the planning scheme dealing with the medium density residential area. It focuses on the medium density nature of the "locality". The appellant contended that the proposal meets P2 having regard to what exists in the locality.

[42] I respectfully adopt the approach of Robin QC DCJ in Calvisi v Brisbane City Council,[8] to the effect that the visual relationship in P1 should be construed to mean a relationship which is pleasing, sympathetic, supportive, harmonious or complementary. The "relationship" required in P2 is an appropriate relationship.

[43] His Honour also observed that building height cannot necessarily be considered in isolation from building size and bulk.[9] I accept, as Jones DCJ did in BTS Properties (Qld) Pty Ltd v Brisbane City Council & Ors,[10] that P1 relates to building height alone but, as Jones DCJ also said "clearly in considering P2 and A2.1, the height of a building, would be a relevant consideration in assessing 'building scale and bulk'".[11] For example, the size and bulk of a building of a given length and width is obviously prone to increase if that length and width is expressed over a greater number of storeys.[12]

[44] In Calvisi it was also said, in relation to P2, that "the performance criterion is accepting what is currently in the locality as 'medium density'".[13] It would however, in my respectful view, be going too far to regard P2 as, in effect, deeming all existing development in the locality to be of, or even to be consistent with, the medium density nature of the locality. The provision refers to the nature of the locality. It is quite conceivable that a locality would exhibit a particular overall nature, even if there are some discordant elements within it.

[45] It is necessary to assess the other buildings in the vicinity, the medium density nature of the locality and other precincts in the plan area in order to evaluate how the proposal responds to P1 and P2 of the LPC. What is required is an evaluative, factually based, process to determine compliance with the performance criteria.[14] I was assisted in my understanding of the evidence by a site inspection.

[46] It was common ground that the relevant locality and the relevant vicinity includes both sides of Oxlade Drive from the Merthyr Street Bowls Club to the intersection with Sydney Street. The river (southern) side of that street is in the MDLP. The opposite (northern) side however, is the Low-Medium Density Living Precinct (LMDLP), the intent precinct for which provides in part, that "the scale and character of proposals must be compatible with detached housing".

[47] Unsurprisingly, given the different precincts which apply, the existing development on the river (southern) side of Oxlade Driveextends to a greater height, bulk and scale to what exists on the other side. In evaluating the relationship which the proposal would achieve with other buildings in the vicinity and with buildings in other precincts, it would be wrong to expect development on the river side of the street to replicate the height, scale and density of that on the other side of the street, in a different precinct. That is not to say however, that the northern side of the street is irrelevant. P1 refers to buildings in the 'vicinity' and P2 extends to the retention of an appropriate residential scale and relationship "with other precincts in the plan area".

[48] Development on the northern side of the street is composed of buildings which are predominately two storeys in height, with some three storey development and one four storey development. Development on the southern side of the street (excluding the subject site) is composed of:

[49] There is a numerical predominance of buildings of two to six storeys on the southern side of the relevant part of Oxlade Dr. It is, however, the existence of a limited number of higher rise buildings upon which the appellant places particular reliance.

[50] It was pointed out, in opposition to the proposal, that the taller buildings, particularly 102 Oxlade Drive (nine storeys), Kirribilli (11 storeys) and Glenfalloch (15 storeys) are historical, in the sense that they predate a shift in planning strategy to that embodied in City Plan 2000. The tallest building approved in the vicinity since City Plan 2000 is the Platinum Apartments, which step from five to seven storeys in height, with the seven storey component proximate to the adjacent taller GlenFalloch. The older tall buildings:

(i) do form part of the relevant vicinity and locality and should not be ignored,[15] but

(ii) do not create a precedent for approval of buildings of the same height under the planning scheme provisions which apply to this proposal, and

(iii) do not, by their existence, necessarily create a reasonable expectation of approval of further buildings of the same height.

[51] It was pointed out, for the appellant, that the existing older tall buildings are spaced at about 130m intervals and separated from one another by intervening lower rise development. Mr Powell saw the visual relationship to be achieved by the proposal as relating to a pattern of:

"The broad walling effect of existing development up to six storeys tall on the southern side of Oxlade Drive, punctuated, at approximately uniform intervals, by taller development."

[52] Mr Powell saw the proposal as maintaining and enhancing that "rhythm". Similarly, Mr Schombergk expressed the following opinion:

"As I have noted above, the Medium Density Area/Zone includes a number of taller buildings interspersed along the length of Oxlade Dr and Griffith St, often at relatively regular intervals. The proposed building will simply add to that dispersal, as evidenced in the plans provided in the Visual Height Analysis plans attached to that application. The proposed building will, in my opinion, contribute to and become a part of that character, and not detract from it. The proposed building, therefore, maintains "a visual relationship with other buildings in the vicinity" (Local Plan s5.4, P1)."

"The visual relationship that occurs in 'the vicinity' can be described as a 'stepping rhythm' or 'saw tooth rhythm' whereby taller buildings are broken up by smaller buildings including houses. Approval of the proposed development is consistent with the existing character in this regard and would add to it in a way that is 'pleasing, sympathetic, supportive, harmonious or complementary'."

[54] It should be observed that, to the extent to which the proposal would respond to an existing pattern, it would do so by extending that pattern, since there is currently no building taller than six storeys between the Merthyr Bowls Club and 102 Oxlade Drive.

[55] I am not satisfied that the proposal will achieve a pleasing, sympathetic, supportive, harmonious or complementary relationship with other buildings in the vicinity in this way. I consider that Mr Powell and Mr Schombergk drew too much comfort from the existing taller buildings. Buildings in the vicinity are typically low to medium rise. As Mr McGowan pointed out, the tall buildings are few in number. The casual observer moving along Oxlade Drive would, at any particular point, typically see only one or two of those buildings amongst an urban field in which buildings of up to six storeys predominate. As Mr McDonald opined, the few taller buildings dispersed in the vicinity do not create a pattern or rhythm to which the proposal would create a pleasing visual relationship. Rather, they appear as unsympathetic visual intrusions. Similarly, Mr Brown placed more weight on the predominant built form at up to around 5-6 storeys.

[56] I accept that there are, of course, significant differences in height between buildings at either end of the predominant 2-6 storey range, however, the proposal would, I am satisfied, by reason of its substantial further height, create a poor relationship with what predominates in the vicinity. That is so notwithstanding the recess at the highest levels.

[57] Further, as was pointed out on behalf of the Council, and as indeed was also observed in Norfolk Estates Pty Ltd v Brisbane City Council & Anor,[16] the existing high rise buildings generally respond to existing low rise buildings by either having significant setbacks or, in the case of Platinum Apartments, being designed to achieve a transition in height. The existing proposal is neither significantly setback nor effectually transitional, notwithstanding the extent of recess.

[58] The conclusion that the proposal would not maintain a visual relationship that is pleasing, sympathetic, supportive, harmonious or complementary applies having regard to the existing development in the vicinity on the southern side of the street. That assessment is only reinforced to the extent to which any weight is given to the development on the northern side of the street.

[59] The appellant sought to get some comfort from the approval, including in recent times, of tall development in a different part of the MDLP, but that is well removed from the vicinity of the subject site.

[60] The situation here differs, factually, from that which applied in Calvisi. There, in approving a ten storey proposal on a riverfront site in Moray Street, Robin QC DCJ was influenced by the graduation that the proposal would achieve. Having described Platinum Development as having achieved a 'pleasing gradation' his Honour observed[17]

Here, the gradation is from the sixteen storeys of Peregrine House to ten to six for the approved redevelopment of Aville Court. As in the case of Platinum, there is (roughly) a clear gradation. Should Aville Court not be redeveloped, the proposed ten storey tower would fit neatly in a straight line from the high point of Peregrine House to that of "Cosmopolitan", a new six storey building downstream of Aville Court. Aville Court at its present height would be dominated by Cosmopolitan and (even) a five storey building upstream. While respectful of Mr Hayes' opinion, I am persuaded by the evidence of his counterparts that the proposal, in its height, will result in a visual relationship with its upstream and downstream neighbours being achieved which can be adjudged pleasing, complementary, etc.

[62] The subject situation is also different (both in relation to the applicable planning scheme provisions and in relation to the facts) from K Page Main Beach Pty Ltd v Gold Coast City Council[18]. In that case I was satisfied that a high rise development (which would 'read' as eight storeys but be the equivalent of ten storeys in height) in a part of Main Beach where tall buildings proliferated satisfied a performance criterion which focused attention on "the predominant residential character of the surrounding area".

[63] The factual circumstances in the subject case are closer to (although not the same as) those which applied in Norfolk Estates Pty Ltd v Brisbane City Council & Ors[19] in which this Court recently refused a proposal, described as being either nine or ten storeys, at 140 and 142 Oxlade Drive, adjoining Kirribilli. That case was decided under the provisions of City Plan 2014, which are discussed later, but include performance criteria corresponding to P1 of the LPC. The developer unsuccessfully sought to justify the height of the proposal on the basis that it would "visually link with other medium rise development within the area whilst also linking with its taller neighbour". It should be noted, however, that the conclusions in the subject case are based on the evidence in this case, rather than on any assessment of different evidence given in Norfolk Estate's case, or any other case.

[64] A consideration of P2 requires an assessment of the medium density nature of the locality with which the proposal's bulk and scale must be consistent. The appellant again placed reliance on the older taller/large buildings within the locality. As has already been observed, however, it should not be assumed that each and every building within the locality is of, or consistent with, the relevant medium density nature.

[65] It is the size and bulk of the predominant two to six storey developments which are most influential in giving the locality, as a whole, its medium density nature. It is of that nature notwithstanding those existing buildings upon which the appellant placed much reliance. The proposal is, I am satisfied, inconsistent with the medium density nature of the locality.

[66] The proposal would still be in conflict with P2 even if greater weight were given to the taller/larger developments. It has already been observed that the proposal responds to its context in a different way to the existing taller buildings within the locality. Further, as Mr McDonald pointed out in the joint report, the proposal is neither a tall slender tower nor a wide low building. Rather, the subject proposal has a relatively large footprint and expresses that footprint over so many levels as to result in a building of a combined length/width/height which is very substantial, even in comparison with other tall development.[20] For example, the proposal has more than four times the gross floor area of the nearest tall building, being the nine storey development at 102 Oxlade Drive and is much longer and wider than it.

[67] It is, of course, not unexpected that development on the subject site could have a larger footprint and achieve greater gross floor area than an existing development on a smaller site. The appellant has the advantage of a relatively large site created by amalgamation. There is nothing necessarily untoward about that. However, the appellant not only seeks to make use of the greater site area to propose a relatively long and wide building, but proposes to express that length and width over so many storeys that the resulting proposed built form is very large, not only in absolute terms (an indication of which is the gross floor area) but also relative to its site area (an indication of which is the plot ratio).

[68] The façade of the proposal is dominated by dark coloured glazing. This is not to everyone's taste and led some submitters to refer to the building as "commercial"[21] or even "Gold Coast office block"[22] in appearance. Leaving matters of taste to one side, the cladding of the building does not sufficiently (if at all) deal effectively with its size and bulk.

[69] The proposal does incorporate some design features which attempt to reduce, or to mitigate to a degree, the impression of its size and bulk and to give the proposal an element of comfortable human scale. In this respect it utilizes measures which are more sophisticated than in the older tall buildings in this part of Oxlade Drive.

[70] Reference has already been made to the setback of the upper part of the proposal. That will obscure that part of the building when a pedestrian is close to the front of the building, but will not prevent the building's full height from being appreciated as one views the building from other perspectives.

[71] The building does feature a combination of balconies, recesses and variations both in material and building form (it has a curved façade), but I am not satisfied that those things have a sufficiently mitigating effect to render as acceptable the size and bulk of the proposal.

[72] In terms of the proposal's ability to "engage with passers-by and converse with the streetscape", Mr Powell pointed specifically to the following:

• "The consolidation of three driveway crossings into one, which will create two visually perceivable zones: pedestrian interaction and pedestrian/vehicle interaction;

• The location of the main gatehouse near the centre of the property frontage, which will visually connect passers-by to the building lobby via the entry courtyard; and

• The retention of the large existing street tree and planting additional trees, with the front courtyards and within the streetscape, which will frame the lower three to four storeys of the building from the building entry."

[73] Whilst those features and, indeed, the extent of street trees, may assist in introducing an element of human scale, it is difficult to describe the built form of the proposal overall as promoting comfort and being of a human scale. Mr Powell overestimated the effectiveness of the design elements. I prefer the assessment of Mr McGowan and Mr McDonald.

[74] For the above reasons I am satisfied that the proposal conflicts with planning principle 2.2.3, particularly desired outcome 2 and principle 4 and with P1 and P2.

[75] There was some debate about the effect of the proposal would have on the "village feel" of New Farm (referred to in section 2.1(3) of the Local Plan). I accept that there are various things which contribute to that "feel". One of those, however, is the built form and, for the reasons given, the proposal is at odds with what the Local Plan envisages in terms of the contribution of the built form in this vicinity or locality. In this respect too, I prefer the assessment of Mr McGowan and Mr McDonald to that of Mr Powell.

[76] City Plan 2014 commenced on 20 June 2014. It is deserving of some weight. The overall planning strategy of City Plan 2014, as it relates to the subject site, is similar to that of City Plan 2000.

(c) Neighbourhood Plans (including Precincts and sub precincts)

(2) The New Farm Neighbourhood Plan (the Neighbourhood Plan).

(iii) The Medium Density Residential Code (MDRC2014)

(v) The New Farm Neighbourhood Code (the Neighbourhood Code).

[80] The Neighbourhood Code prevails over any other Codes to the extent of inconsistency.

[81] The assessment criteria for zones are contained in the relevant zone code. The stated purpose of the MDRC 2014 is, in part, to provide for a range and mix of dwelling types, including multiple dwellings. The purpose of the code is to be achieved through overall outcomes for;

[82] The development form overall outcomes include the following:[23]

(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 in the High density residential zone, acknowledging this zone's role as a transition area between higher and lower rise/lower density zones.

[83] I respectfully adopt the construction of (b) by Robertson DCJ in Norfolk Estates.[24]

[84] The proposal does not sit comfortably with those outcomes. In particular it:

(a) is of a height, bulk and scale which is not appropriately tailored to the location of the site;

(b) is not medium rise and is much higher than the 3 to 5 storeys referred to.

(c) is not of a height and bulk that responds, in a positive or appropriate way, to the nature of adjoining dwellings. The proposal would dominate the 2 storey residence adjoining to the east and is well out of scale, in bulk and height with even the 5 storey development to the west[25];

(d) does not respond to the surrounding character and architecture by having a lower height and/or smaller bulk than in the High density Residential Zone. It may be noted that The High Density Residential Code provides for an up to 8 storey precinct - where residential buildings are predominately 5 to 8 storeys, and an up to 15 storey precinct - where residential buildings are predominately 9 to 15 storeys.[26]

[85] The purpose of the Multiple Dwelling Code is to assess the suitability of development to which it applies. The purpose is to be achieved through overall outcomes which include:

(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:

(iii) 5 storeys in the Medium Density Residential zone.

[86] The proposal well exceeds 5 storeys, which is treated as the reasonable expectation in the zone. For the reasons given elsewhere, the proposal also does not integrate with the existing and intended neighbourhood scheme for the area.

[87] It is unnecessary, for present purposes, to descend into any great detail with respect to the various performance criteria and acceptable solutions of the MDC 2014. Those referred to in the issues raise matters which, to the extent they remained controversial, are dealt with elsewhere. It should be noted however, that counsel for the first to fourth co-respondents by election drew attention to the reference, in PO6, to solar access to key public places. He did so to draw attention to the proposals shadowing of the park. Having regard to the shadow diagrams however, I do not consider that impact to be undue.

[88] The overall outcomes for the neighbourhood plan area include:

(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.

[89] For the reasons given elsewhere, I do not consider that the proposal is of a height and scale which is consistent with amenity and character or community expectations. Further, it has not been established that its greater height and scale is justified by community and economic need for the development.

[90] The subject site falls within the Medium Density Living Precinct (MDLP 2014) in the Neighbourhood Plan. The overall outcomes for that precinct include that:

"This precinct is predominately medium density, taking advantage of the benefits of high levels of accessibility and visual amenity that characterise this area"

[91] It was pointed out, on behalf of the appellant that the outcome speaks of the precinct being "predominately" medium density. That however, gives no particular encouragement to any higher density.

[92] The performance criteria for the MDLP 2014 include PO7 and PO8, which are in identical terms to P1 and P2 of the LPC in City Plan 2000. As to the corresponding acceptable solutions, AO7 refers to table 7.2.14.1.3.B, which nominates a maximum building height for the MDLP2014 of 5 storeys and 15 metres. AO8 reflects A2.1 of the LPC. The proposal does not adopt the acceptable solutions and, for the reasons discussed earlier in the context of the LPC, does not meet the performance criteria.

[93] The code also includes PO1 which is of general application (ie not limited to a particular precinct). It provides as follows:

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 to avoid affecting the potential development of an adjoining site.

Note - Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.

Note - Development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.

Development complies with the number of storeys and building height in Table 7.2.14.4.3.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 the height in metres. Development must comply with both parameters where maximum number of storeys and the height in metres are specified.

[94] It was pointed out, on behalf of the appellant, that the height of the proposal would not have the particular adverse consequences referred to in the first note. That does not however, purport to be an exhaustive list of the potential issues relating to height.

[95] PO1 is, at least in part, forward looking. It refers to the "intended outcome for the precinct", and consistency with "anticipated" density. Further, as Robertson DCJ pointed out in Norfolk Estates, a difference between the provisions of City Plan 2000, as considered in Calvisi, and the City Plan 2014 is that PO1 refers specifically to "storeys" in relation to community expectations. His Honour did not consider there to be any 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-contradicting or at variance". He saw the key point of difference between the Neighbourhood Plan Code and the zone and use codes as being 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".[27]

[96] Insofar as community expectations about the number of storeys is concerned, reference to the planning scheme provisions consistently support an expectation of development to 5 storeys on land in the relevant zone, and neighbourhood plan precinct. It must be accepted that there is at least the possibility of consideration of a proposal for something greater since:

(i) table 7.2.14.1.3B is only specifically referred in the acceptable solutions to PO1 and PO7 of the neighbourhood plan code and

(ii) 7.2.14.1.2(3)(m) of the neighbourhood code contemplates development of a greater height, scale and form where there is a community and economic need

[97] For the reasons given earlier, I do not consider that this proposal is justified by PO1 or PO7. For the reasons given later, I do not consider that a sufficient community and economic need has been established for the development.

[98] Reference was also made to PO9 which provides as follows:

Development on larger sites comprises 2 or more individual structures, rather than 1 large structure.

Development has a minimum separation distance between buildings of 5m within the site.

Development has a maximum building wall length of 10m.

[99] Its closest analogue in the LP under City Plan 2000 was

New buildings on a site must be comprised of individual structures

Spaces between buildings within the site are provided with a separation distance of 5m

Building walls within the site do not exceed 10m in length

[100] Attention focused more on PO9 in the Neighbourhood Plan than on P3 of the LPC, perhaps because it more clearly articulates a requirement for more than the individual structure. The subject proposal would conflict with PO9 if it is applicable. The parties were, however unable to point to any provision of City Plan 2014 which gives guidance on what constitutes a larger site. That is problematic, because the expression is both relative and imprecise. It is at least desirable for the applicability of a given performance criterion to be determined with a degree of certainty.

[101] I was informed that the Council treats 'larger sites' as a reference to sites of greater than 3000 m², but could point to no basis in the planning scheme provisions to that effect. The evidence suggests that the subject site is relatively large in the context of this part of New Farm, but it is unnecessary for me to reach a concluded view on the applicability of PO9, because my decision is not dependent on whether conflict with this provision is established.

[102] The issues of amenity and of reasonable expectations have been dealt with in the course of the consideration of the planning scheme provisions.

[103] I accept that the proposal would not result in any undue direct amenity impact, such as noise, wind, undue loss of access to daylight, undue overlooking and the like. That is not to say however, that the proposal would have no undue impact on amenity.

[104] The concept of amenity extends to less tangible impacts, such as impact upon visual amenity and perception of character. It is evident from the lay witness statements that these are matters of genuine concern. [28] For the reasons already discussed, I am satisfied that the proposal would, by reason of this height and bulk have an undue adverse impact.

[105] Mr Schombergk put forward the following as grounds to justify approval of the proposal in the event of conflict with the planning scheme

(i) The planning schemes, including the current City Plan 2014, have been overtaken by events - those events being the approval and development of buildings in excess of 5 storeys. That is, both the planning authority and the Court have allowed other approvals beyond 5 storeys in height in this planning area/zone/locality;

(ii) The subject site sits within an elongated "finger" of Medium Density zoned land, extending from Merthyr Rd to the Bowls Club along the riverfront. As such, it must be expected that development on this side of Oxlade Drive will differ in form and height to that on the northern side, which is in the Low-medium density zone;

(iii) The subject site sits along a stretch of the riverfront where there is already a number of similarly tall buildings. The proposed building will sit within that context, in a location that is similarly separated from other taller buildings, creating an appropriate streetscape/river-scape;

(iv) All of the surrounding area north and east of Oxlade Drive is subject to the Traditional Building Character Overlay of the 2014 scheme. The subject site is not so affected, meaning that, again, a different built form for this side of Oxlade Drive must be reasonably expected;

(v) The subject site is uniquely large in this part of New Farm, enabling a development comprising a range of unit types;

(vi) The "usual suspects" for unacceptable impacts from developments such as this are traffic, noise, overlooking, privacy, and the broad concept of general amenity. None of those are of concern in this case (in my opinion). This leaves the issues of height, bulk and built form generally, matters that are to some degree subjective, but for which I accept the opinions of Mr Powell (in the Joint Report of Visual Amenity experts);

(vii) The proposed development is relatively unique in that it seeks to offer a mix of unit types, catering to a range of purchasers. 4-bedroom units are rare in New Farm and this development offers a "point of difference" not found elsewhere in the locality, enabling families to living in the area, in addition to the singles, couples and small family units catered to by the 2- and 3-bedroom units;

(viii) Providing this mix of unit types, which includes 2-storey town houses, is unique in New Farm and satisfies the Council's and the State's desires to encourage a diversity of housing in close proximity to the full range of services;

(ix) The proposed development does not give rise to any unacceptable negative impacts on its neighbours, the streetscape or the locality as a whole.

[106] In this regard (adopting the same paragraph numbering)

(i) The planning schemes have not been overtaken by events by reason of the approval of buildings in excess of 5 storeys. Both planning schemes[29] admit of the prospect of development exceeding 5 storeys, where relevant tests are satisfied. Development approved since City Plan 2000 came into effect has not overtaken those strategies. In particular, insofar as the subject vicinity is concerned, there has been only one development of in excess of 5 storeys approved since City Plan 2000 commenced. The effect of that has been discussed earlier. The continued currency of the relevant planning strategies are reflected in the provisions of the recently introduced City Plan 2014.

(ii),(iv) It must be accepted that development on the southern side of Oxlade Drive will differ from that on the northern side, which is in a different precinct. That however, does not justify the present proposal.

(iii) For the reasons given earlier, the proposal does not achieve an appropriate relationship with development on the southern side of Oxlade Drive in this vicinity/locality

(vi), (ix) Amenity conflicts are dealt with earlier. The proposal would have an undue impact on amenity in terms of visual amenity and perception of character.

(v), (vii), (viii) The proposal would add to the stock of units available in New Farm and would do so by offering a variety of unit sizes, but for the reasons discussed below in considering Mr Duane's evidence, I am not satisfied that a community or economic need of any real significance has been established and certainly not one which justifies approval of the subject proposal notwithstanding conflict with the planning scheme.

[107] Mr Duane, an economist, expressed the opinion that there is a "strong potential and clear community and economic need for the subject development" for a variety of reasons. Those reasons included:

(i) the need for diversity and choice of household product in multi-unit developments, given the predicted rapid growth expected in Brisbane, including the inner city are

(ii) the efficiencies to be gained by multi-unit development in an inner city location, in terms of achieving a compact form of settlement and maximising the efficient use of infrastructure

(iii) the mix of unit sizes to be provided, particularly the three and four bedroom apartments, would provide diversity and choice for families in a market where there is a proliferation of one and two bedroom apartments

In summary, the subject development represents a rare opportunity to consolidate residential development in a location which provides a high degree of residential amenity and which is served by significant levels of private and public infrastructure, supporting residential uses.

The subject development represents an opportunity that contributes to the stated planning objectives, particularly in the South East Queensland Regional Plan, of accommodating significant population growth in infill development in locations served by all necessary infrastructure and, in particular, public transport. Increasing population density in such areas not only achieves planning goals but achieves greater economic efficiency in terms of the use of existing and proposed infrastructure which in turn benefits the community generally.

[109] Mr Duane saw the location as a good infill opportunity and saw benefits, from an economic perspective, in maximising the development potential in those circumstances. He confirmed that, from an economic perspective, he thought that it was a case of the more the better, in terms of development of the site. So that, in terms of economic efficiency, the proposal would be justified if it was even higher.[30]

[110] There is no doubt that New Farm, by reason of its many advantages, including its inner city location, existing infrastructure and amenity presents as an area which is attractive for residential development and in respect of which there are economic and planning benefits to be obtained from appropriate further development. There are various provisions in the planning scheme documents (a number of which were referred to in the written submissions for the appellant) which are consistent with that.

[111] That is not to say however, that more development is always better development or development which meets a community need in an appropriate way. The efficiencies and other benefits to be obtained from further development must, if of course, be balanced with other considerations, including appropriate respect for character and visual amenity. That balance is struck in the planning scheme documents.

[112] In the case of New Farm, the Local Plan encouraged a "modest" population increase, whilst ensuring that infill development and redevelopment is compatible with established character. The strategic intent for City Plan 2014 adopts a planning horizon of 2031 and seeks to provide for growth within that planning horizon. It states, amongst other things, that:

"The growth capacity of Brisbane has been incrementally increased through Council's Neighbourhood Planning process which began in 2006".

Against that background, the relevant planning strategy for New Farm in the Neighbourhood Plan in City Plan 2014 is not substantially different from that in the Local Plan under City Plan 2000.

[113] The evidence does not establish that the relevant planning strategies have left a latent unsatisfied demand and community need which would justify the subject proposal in the face of conflict.

[114] That the proposal would be well located, promote efficient use of infrastructure and provide choice to the market are benefits which could be offered by any residential project in New Farm, including by one on the subject site which did not conflict with the planning scheme.

[115] There are, of course, existing and approved development within the area studied by Mr Duane (which included Fortitude Valley and Newstead) to address the residential market. The following exchange occurred in the course of Mr Duane being cross examined:

"MR WILLIAMSON: Mr Duane, what table 4.2 and, indeed, table 4.3 reveal is that in the local area you have examined, there is development on offer which provides a range of bedroom numbers?Yes.

There's on offer a range of developments which will provide different price points?Yes.

There's a range of development which will provide diversity to the public?Yes, they will.

The diversity will include development which is close to employment nodes, correct?Yes, they will.

All the varied benefits that you bestow of the subject site would apply equally to the developments identified in your local area; correct?In varying degrees, yes.

Yes. And the same could be said for table 4.3?Correct."

[116] As was submitted for the respondent (footnotes omitted);

The Appellant's case with respect to need is appropriately characterised as the proposal will provide "more" medium density development in an accessible location. This can be accepted. However, the point loses its force once it is appreciated that a code assessable development application for a multiple dwelling on the land could include a five storey building that:

(c) could provide units overlooking the Brisbane River and Oxlade Drive;

(d) could provide a mix in terms of dwelling sizes - i.e. one, two, three and four bedroom units;

(e) provide a mix of units taking up all the benefits of the New Farm locality.

Further, the need case loses its 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) this is a marker where there is no competition, mix or choice - Mr Duane accepted that there was sufficient activity in the area he described as the "local area" (by reference to table 4.2 and 4.3 of his report) to provide choice, diversity and mix of housing types (Transcript T2-17, Line 27 to Line 45); and

(c) the market is in some way suffering from a lack of choice, diversity and mix of housing in New Farm.

[117] I am not satisfied that there is an economic and community need of any real significance for the subject proposal and certainly not one which would justify approval notwithstanding conflict. In my view there are insufficient grounds otherwise to approve notwithstanding conflict.

[118] I regard the 'grounds' case as relatively weak. It is insufficient to justify approval notwithstanding the extent of conflict which I have found. Indeed in my view, it is insufficient to warrant approval even if the extent of conflict had been more confined. In particular, although I have found conflict with both P1 and P2 of the LPC[31], I would have reached the same conclusion about the insufficiency of grounds had I only found conflict with one or the other of those.

[119] The appellant has failed to discharge its onus. The appeal is dismissed.

[1] Preparation of the judgment was delayed in part due to a period of extended special leave as a result of a serious medical incident.

[2] see Calvisi & Ors v Brisbane City Council & Ors [2008] QPEC 45; [2009] QPELR 35 at 46.

[3] written outline on behalf of the 1-4 co-respondents by election para 107.

[10] [2015] QPEC 47.

[12] In Mr Powell's statement of evidence, he said that "the perceived bulk of the proposal... is likely to be perceived in relation to building height".

[14] Gold Coast City Council v K Page Main Beach Pty Ltd [2011] 185 LGERA 55 at paras [24]-[25].

[15] K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPELR 406 at 414.

[16] [2016] QPEC 9.

[18] (2011) 180 LGERA 278.

[19] [2016] QPEC 9.

[20] see the concession made in submission T4-57.

[29] although it should be noted that the s 326 is not triggered by conflict with City plan 2014 which is only a matter of weight in this case.

[31] and with their counterparts under City Plan 2014.