Planning and Environment Court of Queensland

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION: Petty & Ors v Brisbane City Council & Anor [2018] QPEC 2 PARTIES: ALANA PETTY, DAVID BELL, JASON DAVIS, ASHLEY STAUNTON AND JOSEPH GRIFFIN (appellants) AND BRISBANE CITY COUNCIL (respondent) AND SINTRA DEVELOPMENTS PTY LTD ACN 132 603 171 (co-respondent) FILE NO/S: BD 1238 of 2017 DIVISION: Planning and Environment Court, Brisbane PROCEEDING: Hearing of an appeal ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 7 February 2018 DELIVERED AT: Brisbane HEARING DATE: 20, 21, 22, 23 and 24 November 2017 JUDGE: RS Jones DCJ ORDER: 1. The appeal is allowed. 2. I will hear further from the parties as to any consequential orders.

CATCHWORDS: APPEAL AGAINST APPROVAL OF DEVELOPMENT APPLICATION – where appellants local residents of the suburb of Camp Hill – where the respondent, the Brisbane City Council, approved development of a multi-unit development – where proposed development involved reconfiguration of a lot (four lots into two) – relocation and refurbishment of a pre-1946 heritage residential dwelling – where proposed development involved 16 units over three storeys WHERE CONFLICT WITH CITY PLAN 2014 CONCEDED BY DEVELOPERS AND BRISBANE CITY COUNCIL – where appellants alleged a number of conflicts

2 with the city plan 2014 – where substantive conflicts concerned with conflicts with the Strategic Framework – conflict with the Traditional Building Character (Design) Overlay Code – where conflict alleged with the Low-Medium Density Residential Zone Code – where conflict alleged in respect of the Multiple Dwelling Code – where substantive dispute is whether the proposal is in conflict with City Plan 2014 by reference to its intended height, bulk and scale WHERE DEVELOPER AND BRISBANE CITY COUNCIL CONCEDE SOME CONFLICT WITH CITY PLAN 2014 – whether conflicts sufficient to warrant refusal in the absence of sufficient grounds – where respondent and co-respondent contend sufficient grounds exist to warrant approval notwithstanding conflict Integrated Planning Act 1997 Planning Act 2016 Planning and Environment Court Regulations 2016 Statutory Instruments Act 1992 Sustainable Planning Act 2009 AAD Design Pty Ltd v Brisbane City Council [2013] 1 QdR 1 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Australian Capital Holdings Pty Ltd & Ors v Mackay City Council [2008] QCA 157 Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 Gerhardt v Brisbane City Council [2017] QCA 285 Grosser v Council of the City of Gold Coast [2001] QCA 423 Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271 Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPEC 29 Meridien AB Pty Ltd v Jackson [2013] QCA 121 Newing & Ors v Silcock & Ors [2010] QPELR 692 Platinum Design Architects v Brisbane City Council [2016] QPEC 58 Wattlevilla Pty Ltd v Western Downs Regional Council & Anor [2014] QPEC 47

Weightman v Gold Coast City Council [2003] 2 Qd R 441 Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273 VG Projects v Brisbane City Council [2016] QPELR 404 Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QPELR 686

COUNSEL: Mr M Batty for the appellants Mr J Lyons for the respondent Mr M Williamson with D Whitehouse of counsel for the co- respondent SOLICITORS: King & Co for the appellants Brisbane City Legal Practice for the respondent Broadley Rees Hogan for the co-respondent

[1] This proceeding is concerned with an appeal against the respondent’s decision to approve, among other things, the development of a multi-unit dwelling complex at Camp Hill. For the reasons set out below the orders of the court are: 1. The appeal is allowed. 2. I will hear further from the parties as to any consequential orders.

Background and site details

[2] By Decision Notice dated 1 March 2017 the respondent, the Brisbane City Council, approved the co-respondent’s, Sintra Developments Pty Ltd (“Sintra”), development application subject to conditions. A number of the local residents who lodged properly made submissions in opposition have appealed against that decision (the appellants).

[3] The subject land is situated at 7 and 11 Annie Street, Camp Hill. Camp Hill is a relatively inner-city suburb located approximately 5km south east of the Brisbane CBD. The land is more properly described as Lots 39, 40, 41 and 42 on RP 13124. In total the land comprises 1620m² and is presently occupied by two detached dwellings. Each of those dwellings extend across two allotments. City bound and outward bound bus stops are in close proximity on Old Cleveland Road.

[4] It is not in dispute that the relevant planning scheme is the City Plan 2014 (“CP 2014”). Under CP 2014, the land is most relevantly situated within: (a) the Suburban Living Area (“SLA”); (b) the Low-Medium Density Residential Zone (two or three storey mixed zone precinct) (“LMDRZ”); and (c) an area subject to the Traditional Building Character Overlay Code (“TBCO Code”).

[5] The proposed development that was approved subject to conditions involved a number of components. First, the reconfiguration of the four existing lots into two lots. Second, the demolition of a relatively nondescript single unit dwelling and the relocation of a pre-1947 traditional building. Both heritage architects, Mr McDonald for the appellants and Mr Scott for Sintra refer to pre-1947 dwellings, whereas CP 2014 refers to dwellings constructed in 1946 or earlier. Nothing turns on the different descriptions used. It is proposed to relocate this dwelling onto the proposed 316m² lot (Lot 1) which would be located in the north-western corner of the subject land.

Following its relocation, refurbishment work is also to be carried out. The third and most significant element of the proposed development is that a combined two and three storey multi-unit complex would occur on the remaining 1301m² lot (Lot 2).

[6] It should be noted here that Mr Batty, counsel for the appellants, drew my attention to the fact that the respondent had already given approval to relocate and refurbish the pre-1947 dwelling. The earlier approval of that part of the overall proposal separate to the consideration of the proposal to develop the 16 unit development, is of no consequence in my view. That step was clearly but a preliminary step in achieving the final desired outcome. In this context, I agree with the evidence of Ms Rayment that this was but a “component of this proposal.”1 Also, on 20 October 2017 this court was concerned with an application made by Sintra for orders that proposed changes to the development were minor changes for the purposes of s 350(1) of the Sustainable Planning Act 2009 (“SPA”). That those minor changes occurred are also of no consequence. The nature and extent of the changes did not affect the opinions of those experts who prepared their reports based on the original plans and drawings.

[7] It is uncontroversial that notwithstanding the introduction of the Planning Act 2016 and Planning and Environment Court Regulations 2016 that this proceeding is to be determined under the provisions of the SPA. Under that Act, the onus lies with Sintra to satisfy me that the appeal ought be refused.2 The appeal is by way of a hearing anew.3

The proposed development and the alleged conflicts

[8] A broad description of the proposed development has already been outlined above. However, it is appropriate to give some more details at this stage. What is proposed, given its urban location, is relatively extensive. It involves car spaces for 28 motor vehicles and a number of provisions for bicycles at a basement level. Access is to be gained via Annie Street. There are no traffic issues associated with the development. The first floor contains six units, four of which run back from Annie Street in a north to south direction. The remaining two units run east-west and will be located, to an extensive extent, behind the pre-1947 dwelling when relocated. Landscaping including deep-planting is also planned and that will be dealt with as a separate issue

1 T3-86 ll 8-9. 2 SPA s 493. 3 SPA s 495(1).

below. The second floor largely mirrors what is proposed on the first floor. The third floor, the most controversial element of the proposal, is limited to four units situated above those four units on the first and second floors that run in a north to south direction from Annie Street.4 That is, there will be no third floor development behind the relocated pre-1947 dwelling.5 The upper floors will be serviced by both a stair case and a lift.

[9] Annie Street is one street removed from the major arterial road, Old Cleveland Road. Apart from two extremely dated circa 1970 three storey unit developments which lie immediately to the east of the subject land, the surrounding locality could fairly be described as being dominated by well-kept (or in the process of being renovated) large single unit dwellings, many of which are of a pre-1947 character. In this context I accept Mr McDonald’s evidence that within Annie Street, “there is a strong sense of traditional building character established by the substantial majority of pre-1947 houses (15 of 20 properties or 75%).”6

[10] A helpful depiction of the built form within Annie Street and its surrounds are also set out in Mr McDonald’s report.7

[11] In the appellant’s Notice of Appeal, it is asserted that the development should be refused because:8 “The proposed development would result in an unacceptable built form, in terms of its height, bulk, scale, density and size and would therefore be in conflict with the following provisions of City Plan 2014”. (Emphasis added).

Thereafter, it is asserted that the proposal is in conflict with the following parts of CP 2014: (i) the Strategic Framework; (ii) the Traditional Building Character (Design) Overlay Code; (iii) the Low-Medium Density Residential Zone Code (LMDRZ Code);

4 Units 301, 302, 303 and 304; Exhibit 22, p 931. 5 See Exhibit 22 and Exhibit 1 V3, pp 928, 929, 930 and 931; Exhibit 22 and Exhibit 1 V3, pp 934, 935, 936 and 939. 6 Exhibit 16, p 7, para 2.3.3. 7 Ibid, pp 8-11. See also report of Mr Scott at Ex 9, pp 13-18. 8 Notice of Appeal, para 11.

(iv) the Multiple Dwelling Code (“MD Code”).

[12] Helpfully, the parties were in agreement that there were seven substantive issues involved in this proceeding. The first six of which went to the issue of whether conflict existed and the seventh to grounds for approval notwithstanding conflict. Accordingly, the agreed seven issues could be summarised as follows:9 1. The issue of height, bulk, scale and size. 2. Unacceptable heritage and character impacts. 3. Failure to sufficiently meet required sub-tropical design outcomes. 4. Landscaping and associated amenity impacts. 5. Unacceptable setbacks and separation. 6. That the proposal was contrary to reasonable expectations of the residents. 7. Economic and community need/sufficient grounds.

[13] Not surprisingly, there are areas of overlap and that is particularly so in respect of the first and sixth of those issues.

[14] According to Mr Batty, the approval of this proposal fell within the 2% where the Council “got it wrong.” It was also quite clear by the appellants’ reliance on the decision of this court in Platinum Design Architects10 that there were three substantial planks to their case which they contended were either independently or in combination fatal to the development as proposed. First, because not being sufficiently proximate to a public transport node, the inclusion of a third storey was in material conflict with CP 2014. Second, and directly related to the first matter, elements of the proposed development impermissibly exceeded the prescribed maximum height of 9.5m above natural ground level. Third, by reference to the bulk of the proposal in particular, that the proposal impermissibly is in material conflict with the traditional building character and lot size of the locality.

[15] Mr Williamson, senior counsel for Sintra, acknowledged that as the subject land is not within, or sufficiently proximate to, a public transport node and that elements of the proposal included three storeys and exceeded 9.5m, it was in conflict with s 7(a)(i) of the LMDRZ Code: “2 or 3 storey mix zone precincts overall outcomes are:

9 T1-24 ll 5-15; see also Exhibit 12. 10 Platinum Design Architects v Brisbane City Council [2016] QPEC 58.

(a) Development comprises of 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 to a public transport node.”

[16] However, Mr Williamson, together with Mr Lyons, counsel for the respondent, contended that when looked at objectively, the level of conflict did not warrant refusal as there were sufficient grounds to warrant approval notwithstanding that conflict. In that context, Mr Williamson went so as to catagorise this proceeding as a “grounds case”11 and tendered a document containing the grounds relied on.12 More will be said about those matters below.

Some general principles

[17] Pursuant to s 80 of the SPA, a planning scheme is a statutory instrument under the Statutory Instruments Act 1992. Accordingly, the construction of planning documents must begin with the consideration of the text used and the application of the ordinary principles of statutory interpretation. As was observed by Muir JA in Meridien AB Pty Ltd v Jackson,13 the starting point for those principles may be extracted from the judgment of the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:14 “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy…” (Citations omitted).

11 Written submissions on behalf of the co-respondent, p 25, para 100. 12 Exhibit 13. See also Ex 4 at pp 31-33. 13 [2013] QCA 121. 14 (2009) 239 CLR 27 at [47].

[18] In the more recent decision of Gerhardt v Brisbane City Council,15 the Court of Appeal said:16 “The relevant principles of statutory construction were articulated by Morrison JA in Zappala Family Co Pty Ltd v Brisbane City Council & Ors: ‘…The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed… … However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not

15 [2017] QCA 285. 16 At [31].

correspond with the literal or grammatical meaning …”17

[19] However, it has been repeatedly recognised that planning schemes need to be read as a whole and as intending to achieve a balance between often conflicting desirable outcomes. In Newing & Ors v Silcock & Ors,18 Rackemann DCJ said: “The court has taken a similar approach to the interpretation of provisions dealing with other kinds of impacts.

This approach is also consistent with the well settled principles of construction of planning schemes, which are largely the work of town planners, not parliamentary counsel. Those principles include that they should be construed broadly, rather than pedantically or narrowly and with a reasonable, practical approach. Given the nature of planning schemes, it should not readily be inferred from the absence of an express qualification that the relevant provision requires no impact at all, no matter how insubstantial, trivial or insignificant.

That applies even though a qualification may be expressed in other parts of the planning document…” (Citations omitted).

[20] In Lockyer Valley Regional Council v Westlink Pty Ltd19 the Court of Appeal relevantly said: “…planning schemes should be construed broadly, rather than pedantically or narrowly, and with a sensible, practical approach…” (Citations omitted).

[21] To a similar effect was the judgment of the Court of Appeal in Zappala Family Co where it was said:20 “The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a

17 See also AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1 per Chesterman JA. 18 [2010] QPELR 692 at [62]-[63]. 19 (2011) 185 LGERA 63. 20 [2014] QPELR 686 at [56].

whole and as intending to achieve balance between outcomes…” (Citations omitted).

[22] When construing planning instruments it is of course necessary to consider not only those provisions that work against a proposal but also those that would support its approval.

[23] Bearing those principles in mind, it is then necessary to turn to the issue of conflict and sufficient grounds. Section 326(1) of the SPA relevantly provides: “326 Other decision rules (1) The assessment manager’s decision must not conflict with a relevant instrument unless— (a) the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or (b) there are sufficient grounds to justify the decision, despite the conflict…”

Here of course, this court stands in the position of the “assessment manager”. Sufficient grounds for the purposes of s 326(1)(b) means matters of public interest and does not include the personal circumstances of an applicant, owner or interested party.21

[24] In Weightman v Gold Coast City Council22 Atkinson J (with the other members of the court agreeing) said: “In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s. 4.4(5A)(b) of the P & E Act, the decision maker should: 1. Examine the nature and extent of the conflict; 2. 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;

21 SPA Schedule 3. 22 [2003] 2 Qd R 441 at [36].

3. 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.”

[25] In addition to articulating the necessary “tasks” to be considered in cases involving conflict, Her Honour expanded:23 “The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of Gold Coast is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only…

The first task required of the decision maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere on the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys...

The second question the decision maker has to consider is whether there are any planning grounds on which to approve, or which militate against approval of, that part of the application which is in conflict with the planning scheme. The nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.

The decision maker should then consider other aspects of the development and determine whether they are consistent with proper

23 At paras [35]-[37], [44]-[46].

planning grounds. Those are the planning grounds which apply whether or not the conflict exists.

It is only after consideration of all of these matters that the decision maker is able properly to assess whether or not the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.” (Emphasis added).

[26] In Woolworths Ltd v Maryborough City Council (No 2)24 Fryberg J (with McMurdo P and Holmes J as she then was agreeing), when considering the then provisions of s 3.5.14 of the Integrated Planning Act, expressed the view that “conflict” in this context means to be at variance or disagreement with and, that in resolving a contest between conflict and grounds of justification, it may not be necessary for the decision maker to formally identify and set out each area of conflict and that “the purely mechanical application of the Weightman dictum should be avoided…”

[27] However, more recently the Court of Appeal endorsed the three step approach adopted in Weightman in Lockyer Valley Regional Council where it was said:25 “The Council’s attempt at construing Weightman so as to add another layer of explication to Atkinson J’s explanation of the section (in its earlier form) should be rejected. There is no warrant in s 3.5.14(2)(b) itself for applying different weight to different grounds. To do so would be to impose an entirely artificial set of fetters on the decision- making required. The importance of the ground must depend on what it is, not where it falls in the three-step approach in Weightman.”

[28] The section referred to in Lockyer Valley is a reference to the relevant provision under the then Integrated Planning Act 1997 which has been repealed and replaced by s326 of the SPA.

Reasonable expectations

[29] Before going on to deal with what I consider to be the most central issues in the case, it is appropriate at this stage to deal with the appellants’ expectations submissions.

24 [2006] 1 Qd R 273 at [55]. 25 [2012] QCA 370 at [21].

[30] It was submitted on their behalf that the reasonable expectations of residents in the locality would have been informed by two matters in particular, the provisions of CP 2014 and the previous decision of this court, Platinum Design Architects.

[31] The concept of reasonable expectations was considered in Wattlevilla Pty Ltd v Western Downs Regional Council & Anor26 where it was said that: “The standard of amenity that residents are entitled to enjoy or expect is to be assessed objectively having regard to the Planning Scheme and its intent for development of the area.”

[32] That observation is, with respect, not only correct but also uncontroversial. As to the decision of this court in Platinum Design, as was properly recognised by Mr Batty, it is not binding upon me. That said, I can understand how it might have provided some input into what the local residents might expect to occur in any street. In this context, the neighbour immediately to the rear, Ms Petty, said:27 “In considering my participation in this appeal as an Appellant, I have had regard to the decision of the court in the matter of Platinum Design Architects v Brisbane City Council.

The decision of the Court in that matter informed the reasonable expectations I have of development which is acceptable for the subject site, given the similar treatment of the subject land and the parcel considered in that appeal, under CityPlan 2014.”

[33] To a similar effect was the evidence of Mr Bell. It is unnecessary to repeat what Mr Bell said in his statement28 as it is in identical terms to that expressed by Ms Petty.

[34] It is neither necessary nor desirable to deal any further with Platinum Design in my view other than to note that based on that case the local residents might have expected that what was likely (but not definitely) to occur in Annie Street was a two storey multi-unit development not exceeding 9.5m in height. And, overall a building not of the height proposed. In the appellant’s written submissions it was said that the

26 [2014] QPEC 47 per Robertson DCJ. 27 Exhibit 17, paras 12 and 13. 28 Exhibit 19, paras 24 and 25.

proposed development failed to meet reasonable expectations for various reasons.29 In my view the most significant of those being:30 “In the present case, the Appellants submit that the proposed development is inconsistent with the “reasonable expectations” that land owners in the locality would have for the Land. That is because, as noted above, the proposed development is in conflict with the applicable planning instruments in many respects, including in respect of height, bulk, scale and character matters. Submissions in respect of each of those matters have been made above. However 3 further points warrant emphasis. … Second, it is submitted that Annie Street itself has a special amenity, one that is characterised by an abundance of low intensity (and) detached character housing. Most of the houses in the locality were constructed prior to 1946. The reasonable expectations of residents, including the Appellants, should be assessed the background of that character and amenity.

Finally, the lay witness statements of the Appellants make it clear that the amenity of the locality is a significant attraction for those people to have their homes in this location and that they hold rational and reasonable concerns that the proposed development will degrade that level of amenity…”

[35] As I have already indicated, the evidence of Ms Petty and Mr Bell reinforce that the two central issues are the heritage and character and the height, bulk and scale issues. As both of those issues are to be dealt with in detail below, I do not consider it necessary to explore them any further under this heading other than to note that the reasonable expectations would need to have regard not only to those aspects of CP 2014 that might work against the proposed development, but also those that might work in its favour. In that context, s 6.2.1.2(2)(c) of the LMDRZ Code provides:31

29 Written submissions on behalf of the appellants, para 93. 30 Ibid, paras 89, 91 and 92. 31 Exhibit 10, p 98.

“The purpose of the Low-medium density residential zone code is to provide for a range and mix of dwelling types including dwelling houses and multiple dwellings supported by community uses and small-scale non-residential services and facilities that cater for local residents.

(2) The local government purpose of the code is to: … (c) provide for a mix of dwelling types including dwelling houses, 2 to 3 storey low rise multiple dwellings (such as apartments and row houses) and dual occupancy in the two or three storey mix zone precinct, to provide housing diversity and a sensitive transition both to adjoining sites that contain dwelling houses and between busier roads or centres and lower density residential areas.”

[36] Being in the relevant zone, the possibility of three storey development occurring would have to be seen as at least a possibility in appropriate circumstances. It is not in issue that the subject site is not within easy walking distance of a “public transport node” for the purposes of s 6.2.1.2(7)(a)(i) of the LMDRZ Code. 32

Sub-tropical design/privacy etc.

[37] On balance, the evidence of Mr Scott together with the concession made by Mr McDonald, to the effect that, to the extent there may be conflict it would not warrant refusal,33 satisfies me that no genuine conflict exists in respect of sub-tropical design. I am also satisfied that the proposal would have no adverse impacts on amenity in respect of overshadowing, privacy or in the sense of the proposal being over-bearing of its neighbours.34

Landscaping and amenity

32 Exhibit 10, p 102. 33 Also written submissions on behalf of the appellants, paras 84 and 85. 34 T4-36 – T4-38 ll 1-6 per Mr Vann. Also evidence of Mr Peabody.

[38] According to the appellants there are three amenity and landscaping issues relevant to a consideration of this proceeding. They are:35 (i) open space; (ii) deep planting; and (iii) amenity generally.

[39] In summary it is submitted that the proposed development “would result in significant open space and amenity impacts.”36 In respect of these issues, I agree with the characterisation of the appellant’s concerns given by Mr Williamson, that the three real issues: (i) the assessment of the quality of proposed private open space (Overall Outcome (“OO”) 5(e) of the LMRZ Code,37 OO 2(n) of the MD Code38 and Performance Outcome (“PO”) 28 of the MD Code); (ii) the nature and extent of the proposed deep planting (AO30, PO30 of the MD Code); (iii) the extent of site coverage impacting on the overall proportion of open space and landscaping available on the site after construction. PO14 of the MD Code, AO14 and AO5.

[40] Dealing with each of those matters in turn, in reality the first of the matters raised against the proposal is really only concerned with the two south-eastern ground floor units (units 103 and 104). The totality of the evidence of the architects and visual amenity experts leaves me sufficiently satisfied that any conflict that did exist would not be sufficient to warrant refusal. Indeed Mr McDonald was quite unequivocal that this was not a matter that would warrant refusal.39

[41] As to the second matter, PO30 of the MD Code requires that deep planting must:40 (a) be open to the sky with access to light and rainfall; (b) contain subtropical tree species that, at maturity, would be complimentary in scale and height to the building form;

35 Written submissions on behalf of the appellants, para 71. 36 Ibid, para 81. 37 Exhibit 10, p 101, s 6.2.1.2(5)(e). 38 Ibid, p 124 s 9.3.14.2(2)(n). 39 T4-88 L 32-35. 40 Exhibit 10, p 143.

(c) soften the impact of the building in hardstand areas; (d) provide shade and informal recreation spaces that are easily accessible for building occupants; (e) be located to retain existing site features such as significant vegetation and the like.

[42] The last of those matters is not relevant in the context of this proceeding and, as I understand the evidence of the relevant experts, the first and second matters were not ones of concern. PO30(d) requires not only that the deep planting provides shade and informal recreation spaces, but it must also be “easily accessible for building occupants”. The appellants contend that the existence of the proposed retaining walls at the rear would defeat that object.41 The other substantive complaint made is that some of the deep planting areas would not be used exclusively for landscaping purposes, but would also be treated as, and counted towards, the overall availability of functional private open space.

[43] As to the first of those matters, the appellants are correct. During the course of his cross-examination Mr Powell, the landscape architect relied on by Sintra, said:42 “The retaining walls closest to the rear of the back left units are about 1.7 metres high. It steps down to a retaining wall behind that of about 1.2. The retaining wall to the right hand steps down from about 1.5 to 0.3 metres, and then a retaining wall on the far-left hand side grades up from about 0.2 of a metre to 0.8 of a metre.”

[44] Mr Powell also accepted that at the rear of the site the presence of the 1.7 metre retaining wall would not make the planting easily accessible to the occupants of the proposed development. He accepted that in respect of this planting it would not be possible for a person to gain access to it and take advantage of it, for example by way of sitting in the shaded areas.43 Accordingly, at first blush the proposed landscaping would appear to be in conflict with PO30(d) and also PO28 insofar as it is concerned with “functionality”.

[45] However, in his court report, after considering a number of matters, he said:44

41 Exhibit 29 as marked. 42 T3-47 L 45. 43 T3-51 ll 20-25. 44 Exhibit 7, p 8, para 3.6.

“Accordingly, in setting aside the three-dimensional configuration of open space for the time-being (which is addressed at issue 3b) it is my opinion that the proposed two-dimensional (plan-based) areas for landscaping, deep planting and private open space comply with, or substantially exceed, the minimum areas and dimensions anticipated by Acceptable Outcomes AO28.1(a) and AO30.2(a) of the Multiple Dwelling Code and are therefore likely to satisfy the area requirements applicable to the corresponding Performance Outcomes PO28 and PO30 of the Multiple Dwelling Code.”45

[46] Turning to the last of the substantive matters raised by the appellants this context, PO14 of the MD Code provides:46 “Development ensures that the proportion of buildings to open space and landscaping on a site: (a) is in keeping with the intended form and character intensity of the local area and immediate streetscape; (b) contributes to modulation of the building form; (c) supports residential amenity including access to natural light, sunlight and breeze; (d) supports private outdoor subtropical living; (e) provides for communal open space; (f) provides for deep-planting areas to retain significant vegetation and protect or establish large subtropical shade trees.

[47] AO14(a) provides, in respect of the Medium density residential zone and the low- medium density residential zone, as an acceptable solution that in a character residential zone maximum site cover should not exceed 45%.

[48] The evidence establishes that the site cover of the proposed development exceeds 45%. Mr Powell expressed the view that it could be in the order of between 53.4% and 57.8% of the total site area.47 Even higher values could be arrived at if calculated

45 See also T3-54 – T3-56. 46 Exhibit 10, p 132. 47 T3-52 L 45.

under a different methodology.48 It was Mr McDonald’s opinion that the site coverage would be in the order of 57.8%.49

[49] That an acceptable outcome is not met is not necessarily fatal in a performance based planning scheme. Insofar as the proportion of landscaping is concerned, Mr McDonald’s concerns could be summarised as being about the extent of the site coverage and the resulting disproportionate relationship between the built form and the landscaped areas.50 On balance, I am persuaded by the evidence of Mr Powell that the real objectives of PO14 have been met. Notwithstanding the issues of accessibility and functionality addressed above, when looked at objectively there would be an appropriate balance between the built form and landscaping and open space.51

[50] The remaining issues of the softening of impacts52 and street character53 and modulation of built form54 are dealt with below when addressing the topics of heritage and character impacts and height bulk and scale.

[51] I accept the evidence of Mr Powell on these matters and am satisfied that there is no genuine conflict with PO28 or 30, or any other relevant part of the MD Code. And, to the extent that there may be any conflict it would be both technical and minor and could not warrant refusal. The same can be said in respect of any allegation of conflict concerning PO14 of MD Code.

Setbacks and separation

[52] It is contended on behalf of the appellants that the proposed development is in conflict with PO8 of the MD Code.55 Its objectives are to ensure setbacks and separations are: first, consistent with the form and character of the local area; second, to protect amenity by reference in particular to, natural light and breezes; third, to provide (or protect) privacy without the need for fixed screening.

48 T3-53 L 15. 49 Exhibit 3, p 8, para 29(b). 50 Exhibit 3, p 8, paras 29(b) and (c); written submissions on behalf of the appellants, para 79. 51 Exhibit 3, pp 12-13 and Exhibit 7, pp 14-15. 52 PO30(c). 53 PO14(a). 54 PO14(b). 55 Exhibit 10, p 129.

[53] The expert witnesses relied on by Sintra were unanimous in their opinions that each of these objectives were met. Mr McDonald agreed that there was no conflict in respect of either set back from the front boundary nor the side boundaries.56 As already identified, in respect of the rear setbacks, there are no concerns about privacy, overshadowing or interruption with breezes or natural light. In the Joint Expert Report of the visual amenity experts, Mr McDonald reported:57 “(a) it is noted that the proposed setback of 4.5m to rear balconies and 5m to rear walls is less than the minimum acceptable outcome of 6m to rear balconies and 6m to rear walls for the 3-storey component of the building (as per Table 9.3.14.3.C); (b) it is noted that the proposed setback of 5m to rear walls is less than the minimum acceptable outcome of 6m to rear walls for the 2-storey component of the building (as per Table 9.3.14.3.C); (c) the external balconies of rear units 203, 204, 205, 206 & 303 rely on rear boundary landscaping and two existing large fig trees on the rear boundary of the adjoining 10 Dorothy Street to provide screening to rear adjoining houses. These latter trees may be under threat of damage from basement excavation and may not provide reliable screening to rear adjoining houses. (d) the proposal presents a very wide rear façade (at 34.7m) to the rear adjoining houses at 6-8 & 10 Dorothy Street; and (e) although only two storeys in height above ground at any point, the combination of a very wide rear façade at less than minimum setback will present a large area of wall with active, unscreened balconies that will appear very close to rear adjoining houses.”

[54] Having regard to the issues concerning amenity addressed immediately above and taking into account the proposed landscaping, I do not consider that Mr McDonald’s concerns expressed in paragraphs (c) and (e) are warranted. The latter is discussed in more detail below. Consistent with his views expressed in (d) it would appear that,

56 T4-68 L 27 and T4-69 ll 9-24 (POs 9 & 11). 57 Exhibit 3, p 6, para 23.

by reference to his cross-examination, Mr McDonald’s most serious concerns about the rear setback were associated with its contributions to the height, bulk and scale of the proposal.58 This also seemed to be the only concern of Mr Vann, the town planner relied on by the appellants.59

[55] In conclusion on this topic, I am satisfied that insofar as there may be any conflict concerning the rear boundary, the conflict is technical and so minor as to be an irrelevant consideration. That is particularly so, given the absence of any adverse impacts on light, breezes and privacy, etc. The potential contribution to height, bulk and scale will be addressed below but otherwise there are no conflicts concerning setbacks and separation.

Heritage and character matters

[56] Clearly the most serious allegations of conflict are concerned with the bulk and scale, and, by necessary implication, the height of the proposed development. That issue is considered separately below.

[57] After addressing the issues of height, bulk and scale, Mr Batty went on to say that there were “3 further character issues that necessitate consideration…” Those three issues were:60 (i) the roof form of the proposed development “by reference to PO7 of the Design Code”; (ii) the size of the proposed lots “by reference to SO4 and L4 of Table 3.7.6.1 of the Strategic Framework”; (iii) Compliance otherwise with the Strategic Framework “by reference to SO2, SO3, L2 and L3 of Table 3.7.6.1 of the Strategic Framework”.

[58] I will deal with the first two of those matters under this heading but consider the third ought to be more appropriately dealt with when dealing with the extent of the proposed development.

The roof form

58 T4-71 ll 1-43. 59 Exhibit 4, p 28, para 109. 60 Written submissions on behalf of the appellants, p 15, para 53.

[59] Section 8.2.22.2(2) of the Traditional Building Character (Design) Overlay Code (TBC Code) identifies its objectives are to be achieved through the following outcomes:61 “(a) Development reflects or strengthens the traditional character and traditional building character through compatible form, scale, materials and detailing.

(b) Development retains and complements a precinct of houses constructed in 1946 or earlier.” (Emphasis added).

[60] PO7 provides:62 “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.”

AO7.1 and AO7.2 respectively provide:63 “Development provides roof forms which are one or more of a combination of pyramids, hips or gables of similar pitch and proportions to those of dwelling houses constructed in 1946 or earlier nearby in the street; and

Development includes eaves that are of similar proportions to eaves on dwelling houses constructed in 1946 or earlier nearby in the street”.

[61] A comparison between what is proposed64 and the roof pitch typically associated with a pre-1947 dwelling would tend to reveal clear conflict with the object of PO7. On this issue Mr Scott gave the following description:65 “…the multiple dwelling component of this proposal…has a large and relatively simple roof form with carefully considered details such as generous eaves and variously sloping roof plains to provide shadow to the walls and a variety of roof edge lines, appropriate to its task of being seen from street level, with viewers looking up to the roof edge.

61 Exhibit 10, p 110. 62 Exhibit 10, p 113. 63 Ibid. 64 See e.g. Exhibit 22, p 934. 65 Exhibit 5, p 9, para 23.2(b).

As a viewer moves along the street looking at the multiple dwelling component of this proposal, the variety of prominent roof edge lines would be readily apparent and the shadows and the three dimensional effects they achieve would, I think, convince that viewer that this building has been designed to sit comfortably in this street with its predominance of pre-1947 houses and to look more compatible with that character than the flat roof edge of the unit building immediately to the east of the subject site… and the flat and thick roof edge of the unit building second to the east from the subject site…”

[62] It is also tolerably clear that by reference to the roof pitches of a number of houses and other dwellings, in particular the two multi-unit dwellings to the east of the proposed development, it could not be said that there was but one roof design and, in particular, roof pitch, adopted by all pre-1947 dwellings.66 And, as Mr McDonald accepted, PO7 requires the roof to complement, not replicate, a pre-1947 roof.67

[63] Mr Scott also refers to the fact that the proposed development does include a structure which will have a roof form that matches pre-1947 roof forms in Annie Street. That of course being the dwelling house that is proposed to be relocated. In my view that consideration is not a particularly persuasive one. If anything, the reference to the proposed relocated dwelling might tend to highlight the difference between the roof design of a pre-1947 house and what is proposed.

[64] I can readily accept that great care has been given to designing a roof structure that would, as far as practicable, be sympathetic to the pre-1947 character and, has been designed in such a way as to minimise its visual impact on any passer-by. However, I am not satisfied that the proposed roof could sensibly be said to compliment the traditional roof forms and therefore is in conflict with PO7 of the TBC Code. It seems tolerably clear to me that the main design goal for the roof design was to keep it as close as possible to the height of 9.5m. The conflict with PO7 of itself would not be sufficient to warrant refusal. That said, I consider that it is not an irrelevant consideration that the lift structure will extend to a height of in the order of 2.3m

66 See e.g. Exhibit 9, pp 13-18. 67 Exhibit 2, p 11, para 24.1.

above the roofline, albeit setback from the street.68 More will be said about this matter below.

Lot sizes

[65] In my view nothing of significance turns on this aspect of the appellant’s case. The surrounding area and, in particular, that part of the location surrounded by Annie Street, Glanosmond Avenue, Dorothy Street and Dorothy Lane reflects various lot sizes and dwelling/lot coverages. Two relatively small lots facing Dorothy Lane, each accommodating a single unit dwelling, are located on the south-western end of that lane. Both of these lots being, generally speaking, square in shape. Directly behind those lots are two dwellings located on long and narrow lots located on the north-eastern corner of Dorothy Lane and Annie Street. Thereafter there are a number of dwellings located on single lots or spanning over two lots.69

[66] In respect of the 319m² lot, which would accommodate the relocated pre-1947 dwelling, there is little likelihood that any person walking these streets would identify any meaningful difference between the size of that lot and the two lots located on the south-western end of Dorothy Lane. That is particularly so when the 319m² lot will present to the street with a fairly typical street frontage. In this context, as I understood the evidence of Mr Vann, the town planner relied on by the appellant, his major concern was not so much about the proposed 319m² lot, either in respect of its area or shape, but more about what was to occur at the rear of that lot, being the extension of the multi-unit development component.70

[67] Indeed in this context in response to a question from me, the following exchange occurred:71 “Q: So does it come down to this: there’s nothing wrong with the proposed lot 1. It’s what’s going on around it?

A: That’s probably a fair way of saying it, your Honour, yeah. Yeah, for lot 1 by itself, and if the other one had a, you know, a – a sort of more regular built form which happened to have

68 For a visual representation see Exhibit 22, p 935. 69 See Exhibit 28. 70 See generally T4-31 – T4-38. 71 T4-41 ll 15-20.

the L-shape, that’s, you know – that would be right.

Q: So in that context, the proposed lot 1 is – is – you know, fits in with the overall pattern, where you say you part company with Mr Williamson is its – what’s going on around it?

A: Yeah that’s right, your Honour, in terms of scale, height.”

[68] In this context though, Mr Vann accepted that the two storey component located to the south would be largely obscured from Annie Street because of the relocated pre- 1947 house.72 I did not understand that Mr McDonald was asked to express an opinion on this aspect of the appellants’ case.

[69] I am also satisfied on the evidence that nothing really turns on the size of the proposed Lot 2 of 1301m². The appellants relied on SO4 and L4 of Table 3.7.6.1 of the Strategic Framework.73 SO4 provides: “The local character which is typically defined by features such as consistent block size and house spacing, an established road pattern, a predominance of detached housing, the presence of mature vegetation and gardens and by local topography is maintained.

L 4.1 and L 4.2 respectively provide: ‘Infill development is limited to instances where the resulting lot size reflects that which predominates in the neighbourhood; and

The siting, scale and lot coverage of new housing is consistent with the existing neighbourhood character of well-spaced houses and vegetated backyards.” (Emphasis added).

[70] Neither the Specific Outcomes nor the Land Use Strategies mandate either lot size or shape. To the observer walking along the surrounding streets, this lot would not present to the street as being materially different to a number of the lots that accommodate larger homes, particularly those fronting Dorothy Street and Glanosmond Avenue. And, as already discussed, the rear part of the lot which

72 T4-41 ll 25-27. 73 Exhibit 10, p 81.

extends to the west will be largely obscured by the proposed 319m² lot. Insofar as that “L” section of proposed Lot 2 might present to Dorothy Lane it would be largely of no significance being two lots removed from that street.

[71] On the evidence before me I am satisfied that no genuine conflict arises in respect of the issue of lot sizes and insofar as there may be any conflict, it is both technical and minor.

Height, bulk and scale

[72] In respect of this issue, three matters loom particularly large. First, the locality has a strong sense of being dominated by timber traditional character dwellings. However, unlike the situation to the west which, north of Old Cleveland Road, contains a large area in the Character Residential Zone, the subject area is zoned Low-Medium Density (two or three storeys).74 The third matter is that while the northern side of Annie Street between Dorothy Lane and Glanosmond Avenue is made up of single unit dwellings of a traditional character, the southern side has been corrupted by the introduction of two unattractive circa 1970s unit blocks, each of two storeys, and a non-descript post-1947 dwelling of no significance.

[73] Height, bulk and scale of course consists of three fundamental inputs. Length (or frontage), breadth (or depth) and height. Because of the evidence of the architects in particular, it is necessary to deal with each of those elements separately.

[74] That conflict exists is accepted by all parties however, the characterisation of that conflict differs. According to the appellants, the conflict is “significant”.75 According to Sintra, the conflict with respect to the LMDRZ Code, is “…fairly characterised as something other than a technical” conflict.76 The respondent’s position is:77 “It is accepted that there is conflict with City Plan in relation to height and that conflict is stark and clear. Plainly the proposed development is not within easy walking distance of a public transport node and exceeds two storeys.

74 See Exhibit 11, sheet 2. 75 Written submissions on behalf of the appellants, p 24, para 101. 76 Written submissions on behalf of the co-respondent, p 20, para 83. 77 Submissions on behalf of the respondent council, p 32, paras 150 and 151.

Accordingly, there needs to be notable matters of public interest to overwhelm the conflicts.” (Emphasis added).

Length/frontage

[75] Before giving consideration to the actual dimensions of the proposed development, it is appropriate to deal with two related topics before doing so. First, the debate concerning the way the proposal would present to the street. Second, the issue of whether the proposed development constitutes “a sensitive transition both to adjoining sites that contain dwelling houses and between busier roads or centres and lower density residential areas.”78

[76] Turning to the first of those two matters, the frontage to Annie Street is of the order of 18m in length and, for the most part, 9.5m in height. The extent and significance of the exceedance of 9.5m height is discussed in more detail below. There would be some presence to Dorothy Lane, but that would be limited to about 13m to 14m of the two storey component setback from that lane by the two existing dwellings on the corner of Annie Street and Dorothy Lane. That presentation to Dorothy Lane is of no significance.

[77] According to Mr McDonald, the architectural elements adopted by Sintra were largely ineffective and the frontage to Annie Street would not present in an appropriate form having regard to the surrounding architectural forms. And, in particular, the pre-1947 dwellings.

[78] Both Mr Scott and Mr Peabody, the architects relied on by Sintra, were clearly of the opinion that the design of the proposal would present as a well-considered and appropriate design response to the surrounding architectural forms. In this context, the evidence of Mr Scott was:79 “The bulk of the proposed multiple dwelling at 11 Annie Street has been broken into smaller components, as seen by a viewer in the street, by a large number of architectural devices including:  steps in its form, both horizontally and vertically

78 Section 6.2.1.2(2)(c) of the LMDRZ Code: Exhibit 10, p 98. 79 Exhibit 9, pp 9-10, paras 5.03-5.05; Exhibit 2, pp 7, 9 and 10 per Mr Peabody.

 generous eaves to provide shadow to the walls and variously sloping roof planes to provide a variety of roof edge lines, appropriate to its task of being seen from street level, with viewers looking up at the roof edge rather than at the volume of roofs apparent on shorter pre-1947 houses in the street  prominent verandah elements with a modern version of traditional lightweight detailing to provide 3 dimensional effects to the prominent front elevation of the building, areas of light and shade, solid and void, projecting and recessed wall elements  areas of walls with different finishes, materials and detailing  window hoods, battening, semi-transparent fencing, and landscape elements including trellises …

The scale of the proposed multiple dwelling… has been controlled by its form being broken into smaller components, as be seen by a viewer in the street… Scale can be seen in two ways – either as relative size of a building compared to adjacent buildings or the relative size of components of a building when compared with similar components on adjacent buildings…”

[79] Mr Peabody gave evidence to similar effect.80 Neither Mr Peabody nor Mr Scott, in respect of this topic, were shaken in cross-examination in my view. On the other hand, I found aspects of Mr McDonald’s evidence on this topic less than convincing and at times verging on being adversarial. At one stage he compared the architectural treatment as being the equivalent of putting lipstick on a pig.81 That comparison was not only unfair but also inappropriate. Mr McDonald accepted on more than one occasion that appropriate materials were being contemplated.82 He also accepted that the design was not without its “positives”.83 Overall, I was left with the very clear impression that Mr McDonald’s concerns about the way the proposed development

80 Exhibit 8, p 5, paras 6.3, 6.4, 6.5 and 6.6. 81 T4-61 ll 33-40. It was Mr Vann who first used this phrase in the context of height, bulk and scale but said he did not want to “apply it particularly here”: T4-35 ll 6-15. 82 T4-62 ll 42-47. 83 T4-63 ll 5-30.

would present to Annie Street was largely, if not entirely, dominated by his concerns about its overall dimensions and, in particular, its height. His consideration of the design and architectural appearance (as opposed to size) seemed to be very much of secondary importance. That came through in both his oral and written evidence.

[80] Leaving aside those elements of the proposal that exceed 9.5m in height, a matter discussed below, I am satisfied that it would present in a well-considered manner largely sympathetic to its surrounding built environment.

[81] Turning next to the issue of transition, I have no difficulty in accepting the evidence of Mr Peabody and Mr Scott to the extent that the proposal, insofar as its height does not materially exceed 9.5m, would provide a well-considered transition with the buildings to the east. The roof height of the proposal and the two unit blocks to the east is clearly complementary.84 For some inexplicable reason in this context, Mr McDonald seemed to be unable to distinguish between the concepts of height and the number of storeys involved. More will be said about this below. That said, he did not consider that there was any difficulty associated with the relationship of the two storey component and the houses immediately to the south, nor in respect of the pre- 1947 dwellings to the west.85 Mr Vann, in my view, was far more reasonable in this regard in that he readily accepted the relative relationship between the proposal and the buildings to the east, at least insofar as the 9.5m element of the proposal was concerned.86 In that context Mr Vann was expressly asked to exclude the “lift overrun”.87

[82] In respect of the three storey component Mr McDonald expressed concerns about the relationship between its height in comparison to that of the pre-1947 house to which is to be relocated and to those “across the street.”88 Again, Mr McDonald’s views on this matter were greatly influenced by his concerns about the dimensions of the proposed development.

[83] Bearing in mind the zoning of the land, any multi-unit development is likely to be more dominant in respect of height, being in the order of 9.5m, when compared to a

84 Exhibit 8, p 5, paras 6.1 and 6.2; also see Exhibit 22, p 934. 85 T4-67 ll 19-32; T4-72 ll 40-47; T4-73 L 1. 86 T4-24. 87 T4-24 L 12. 88 T4-83 ll 6-23.

single unit dwelling. Indeed, the planning scheme recognises that consequence but seeks to limit the extent of variation of built form by requiring “…a sensitive transition…” on balance, again leaving aside the height issues exceeding 9.5m, I am satisfied that the proposed development would provide a sensitive transition to the built environment to the north, south east and west.

[84] Turning then to the actual dimensions of the proposal, the three storey frontage to Annie Street will be at or about 18m, and its depth along its eastern boundary at or about 25m. Its total width along its southern extremity at or about 34.5m.89 It is uncontroversial that the three storey component of the building running from the north to south from Annie Street (units 101 to 304) would be predominantly, but not entirely, 9.5m in height.90

[85] The stated purpose of the MD Code is to assess the suitability of development to which the Code applies. That purpose is to be achieved through a number of identified Overall Outcomes. Table 9.3.14.3A of that Code sets out criteria for assessable development. PO6 relevantly provides:91 “Development has a building height that is consistent with the streetscape local context and intent for the area having regard to…”

AO6.2 provides:92

“Development in the 2 or 3 storey mix zone precinct of the Low- medium density residential zone where adjoining a lot containing a dwelling house (where no approval for development other than a dwelling house exists) has a building height within 10m of the common boundary that does not exceed 9.5m or 2 storeys.

[86] Those elements of the roof per se, that exceed 9.5m are of no real significance in my view. They exceed 9.5m to only a relatively minor extent and of themselves could not reasonably be considered to create genuine conflict with the relevant provisions of PO6 of the MD Code, or any other relevant provision of CP2014. That is, they of themselves would not warrant refusal. However, of significance is that a roofed

89 T3-44, per Mr Powell. 90 See Exhibit 22, p 945 “Current Version”. 91 Exhibit 10, p 127. 92 Ibid at p 128. See also Exhibit 10A, p 11.

section of the fire stairs is at an elevation of 10.8m and, even more significantly, a part of the lift structure towards the rear of the three storey component stands at 11.8m.

[87] In respect of its eastern elevation I consider that, by reference to its length, it does not raise any potential issues of conflict. Its length from Annie Street will be largely screened by the two storey unit block to the east93 and be moderated to some extent by design features. The landscaping along the rear boundary will also largely disguise and limit the impact of the eastern wall on the residents of those houses facing Dorothy Street.

[88] As to the rear length of the building, it in its own right does not raise any meaningful negative visual amenity issues in my view. To a material extent it will be hidden from view from Mr Davies’ property and that to the immediate east by existing vegetation.94 But, more importantly, by the proposed landscaping, including the deep planting. That landscaping will also materially lessen the visual impact of the rear wall on the land owned by Ms Petty. In this context it is also relevant that the vast bulk of the proposed development adjacent to Ms Petty’s property will be two storeys and less than 9.5m in height.

[89] Of course, as already identified, the bulk and scale of the proposal cannot be determined by reference to only two dimensions. It is the addition of bringing height into the equation that gives the full picture of the end product. And, by reference not only to the experts relied on by the appellant, but also the written submissions, it is clear that height was the dominant theme.

[90] Not surprisingly, when the overall size of the proposal was put to a number of the witnesses called to support Sintra’s case, a number of significant concessions were made. Some examples include Mr Scott accepting the obvious, namely that in terms of volume it would be the largest in the street.95 Mr Schomburgk made a similar observation.96 The most significant concession in this regard came when being cross- examined about PO5 of the MD Code,97 in the context of the dominance of detached

93 See e.g. Exhibit 22, p 941. 94 See Exhibit 28. 95 T3-6 L 15. 96 T2-48 L 30; T2-49 ll 10-15. 97 Exhibit 10, p 127.

character houses.98 The following exchange took place between Mr Batty and Mr Schomburgk:99 “Q: Again, can I suggest to you that focusing on page 15, the comparison, just as an example, between 1 and 3 Annie Street and the proposed development, given the overlay that applies in this locality, and given the actual on the ground, detached housing character of the street, that you would concede that the development is of a bulk and scale – nothing else, just bulk and scale - that is not consistent with the intended form and character of the local area?

A: Look, that – that may be right. The intended form and character, if you take into account the lot sizes, etcetera, that are intended, it’s bigger than that. So to that extent, it’s not inconsistent. The bulk and scale – yeah, look, I’m – I’m not sure. There – it’s not – on just bulk and scale, you’re – as I said, you’re probably right, yes.” (Emphasis added).

[91] PO5 of the MD Code, among other things, sets as a criteria that “development is of a bulk and scale that is consistent with the intended form and character of the local area…” To a similar effect in s 3.4.1(1)(j) of the Strategic Outcomes100 that speak of integrated housing choices being in a form appropriate to the locality.

[92] Table 3.7.6.1 of the Strategic Framework also sets out a number of specific outcomes and land use strategies. SO3 encourages but does not prescribe or mandate “small scale” multiple dwellings. Land use strategies L 2.2 and L 3 also speak of the strategy or objective of such development being small scale.101 For the purposes of L 2.2 the proposed development is “infill development”.

[93] The term “small scale” is not defined in CP 2014. Nothing turns on that in my view. Terms such as “bulk” and “scale” also appear in important provisions of CP 2014.102 They are also not defined but that omission in no way diminishes the importance of

98 T2-49 ll 30-45. 99 T2-50 ll 1-10. 100 Exhibit 10, p 15. 101 Exhibit 10, p 81. 102 E.g. MD Code, PO7 at Exhibit 10, pp 128-129.

those elements of a proposed development in the assessment process. According to Mr Williamson, the term small scale “is a distraction and doesn’t give rise to plainly identified conflict with the planning scheme.”103

[94] While I agree with the latter part of that submission, I do not accept it to be a distraction. Given its locational context, the proposed development could not be described as small scale. That of itself does not give rise to conflict, but it is still a relevant consideration. It is, as Mr Vann pointed out, indicative of a tension with or lack of accordance with the relevant strategic intent of CP 2014.104

[95] In the JER of the architects, Mr Peabody stated:105 “…the proposal is considerate to the placement of building envelopes, and the associated scale and bulk to coexist comfortably with existing adjoining dwelling houses. This includes the detached dwelling element of the proposal adjoining the two storey… detached dwelling on 3 Annie Street; and the southern portion of the multiple dwelling element of the proposal which, due to the existing topography and approach to recessing the proposal at the south-western corner of the site shall be perceived by the adjoining dwelling houses on Dorothy Street as essentially a two storey building envelope and other pre-1947 character houses in the street.”

[96] I consider that to be a largely well founded opinion. The proposed development has a number of attractive features and meets many of the objectives and desired outcomes under CP 2014.

[97] In this context, as already observed, I also had a number of difficulties understanding aspects of the evidence of Mr McDonald and Mr Vann concerning the relationship between height and the number of storeys fronting Annie Street. As has been already identified, s 6.2.1.2(7)(a)(i) of the LMDRZ Code identifies as an overall outcome that in the two or three storey mix zone precinct such development is to be no more than two storeys unless within walking distance of a public transport node. The proposal is not so located.

103 At p 7, para 27. 104 Exhibit 4, p 12. 105 Exhibit 3, p 17, para 29.2(b).

[98] Mr Vann’s opinion was really to the effect that if not within easy walking distance to a transport node, then no three storey development ought be approved.106 If this was correct, most of the area designated for two or three storey development in this precinct would in fact not be suitable for anything other than two storey development. Such an outcome would not only seem to be inconsistent with the land use designation given to this part of Camp Hill but also with other aspects of Mr Vann’s evidence. By way of example, he accepted three storey development could be considered low rise development.107 And, in respect of PO6, which is concerned with building height being consistent with the streetscape and AO6.2108 in respect of the reference to a “9.5m or 2 storeys”, Mr Vann seemed to be hardly concerned about height at all. According to him “---essentially---a two storey building can be as tall as a three storey building depending on how it’s designed. So it’s really about the third storey- --that’s the issue at hand here (emphasis added).”109

[99] Also in this context, in the JER of the town planners, Mr Vann reported:110 “The difference between two and three storeys is most noticeable, particularly at the street, and it is this attribute, rather than total height, that places a development at odds with the streetscape rather than (be) complementary to it…” (Emphasis added).

[100] In this context Mr Vann considered that while it might be possible to design a three storey building at or about 9.5m that would compromise the development’s capacity to deal with matters such as flooding, topography and features such as rooflines that would add visual interest and accord with traditional character. According to him, the 9.5m height restriction was not “an invitation to squeeze in another storey.”111 Here there is no issues concerning flooding or topography. There are ramifications concerning roof design and they have already been dealt with.

[101] I am unable to accept that a three storey unit development that did not have any adverse impacts on amenity or infrastructure and otherwise complied with the

106 T4-18 ll 37-39; T4-25 ll 26-30; T4-50 ll 3-12. 107 T4-9 L 35. 108 Exhibit 10, p 127-128. 109 T4-25 ll 30-35. 110 Exhibit 4, p 16, para 57. 111 Ibid, para 58. Mr Vann’s concerns regarding roof design can also be found at T4-29 ll 40-47; T4-30 ll 1-10.

primary objects and outcomes of CP 2014,112 must be refused solely on the basis that it was not within easy walking distance of a transport node. To interpret CP 2014 in such an inflexible way would be contrary to the underlying philosophy of a performance based planning scheme. Also, had the respondent intended to mandate that three storey development could only occur in close proximity to transport nodes, it could have readily provided for that in the drafting process. That said, the language used in that code reveals a very strong indication that the starting point in the decision making process is that 3 storey development should be limited to those types of areas identified.

[102] On its face, the proposed development is in clear conflict with s 6.2.1.2(7)(a)(i) in that it involves a three storey multi-unit development, that is not within easy walking distance of a public transport node. However, that such a conflict exists need not necessarily be fatal.

[103] I will turn then to the evidence of Mr McDonald on this topic. He also considered that “there was a significant difference between the impact of a 2 storey building and a 3 storey building, especially in relation to such factors as human scale streetscape interference with nearby and adjoining detached dwellings.”113

[104] Unfortunately, Mr McDonald was unable to provide a rational explanation or basis for that opinion. Initially his evidence was to the effect that the additional floor must almost inevitably involve extra height which in turn generates extra bulk.114 However, when reminded that the proposal would largely present to Annie Street as being 9.5m in height, his concerns, were to an extent similar to that of Mr Vann and seemed to end up focusing on the inability to design a roof that would complement (but not replicate) a traditional character roofline.115

[105] In respect of the issues of the number of storeys and height, both Mr Vann and Mr McDonald seemed to have failed to fully appreciate the relevant distinction between the two, for the purposes of the provisions of CP2014, insofar as was relevant to this proceeding.

112 By way of examples height, streetscape, heritage and character values. 113 T4-75 ll 30-45; T4-76 ll 1-22. 114 T4-79 ll 28-47; T4-80 ll 1-33. 115 T4-80 ll 33-47; T4-81.

[106] The LMDRZ Code, insofar as it is relevant to the number of storeys, is more concerned with the level of development involved. The greater the density (i.e. 3 storeys), the greater the emphasis on proximity to public transport nodes. PO5 and PO6 on the other hand, have as their focus, height, bulk and scale, in the context of the proposed development being consistent with concepts such as the form, character and streetscape within the local area.

[107] Returning to the subject proposal, as I have already indicated, but for the lift structure and roofing over the fire stairs it would, for all intents and purposes, satisfy the relevant provisions of CP 2014 insofar as they are concerned with height (as opposed to storeys), bulk and scale and consistency with the streetscape at the local level.

[108] However, the height exceedance concerning the lift and the roof structure could not sensibly be described as being minor. The roof structure exceeds the 9.5m criteria by 1.3m but, even more significantly, the lift structure exceeds it by 2.3m. Indeed it even exceeds the height criteria for three storey structures (11.5m) in Table 5.5.2 of the Low-medium density residential zone.116 The roof and the lift structures place the proposal in material conflict with PO6 of the MD Code. That is so for two reasons: first, because it is, insofar as it is relevant in this context, a three storey building that exceeds 9.5m in height; second, I agree with Mr McDonald, that those elements that exceed 10m would be inconsistent with, and out of character for the local area.117

[109] It was submitted that insofar as these elevated sections of the proposed development were concerned, they were “centrally located on the site and removed from adjoining development”.118 While I can accept that they are so located, they would nonetheless be clearly visible from Annie Street and to the residents to the immediate east and west.119 By reference to the plans the situation to the south would be even more stark.120 The proposed landscaping is unlikely to have any meaningful ameliorative effect in this context and it would be wrong to place too much emphasis on the existing vegetation on Mr Davis’ property as a solution to the problem.

116 Exhibit 10A, p 11. 117 Exhibit 3, p 7, para 27; Exhibit 5, p 15, para 31.1(b). 118 Written submissions on behalf of the co-respondent, p 6, para 21. 119 See generally Exhibit 22, p 935-936. 120 Exhibit 22, p 936.

[110] For the reasons given, notwithstanding that I consider that Sintra has gone to considerable time, effort and, no doubt, expenditure to produce an attractive unit development which would in many respects sit comfortably within its location, the issues of height to which I have just referred places the proposed development, to use Mr Lyons’ words, in stark and clear conflict. In its current form, the proposal is in conflict with CP 2014 in respect of height,121 and the number of storeys involved122 also, but to a much lesser extent conflict exists concerning roof design.

[111] Having identified serious conflicts with important provisions of the planning scheme it is then necessary to consider whether sufficient grounds exist to warrant approval notwithstanding the conflict.

Grounds

[112] While not the only ground relied on by Sintra, the questions of the need for and the economic opportunity this proposal offered were two of the more substantive grounds relied on. To address these issues, Sintra relied on the evidence of Mr Duane, an economist. No other party called economic evidence. That said, Mr Batty cross- examined Mr Duane quite extensively.

[113] Mr Duane’s conclusions concerning this issue were set out in his report:123

“CONCLUSIONS 8.1 Overall, the research in relation to economic need indicates there is strong potential and economic need for the subject development for a variety of reasons, including: a. The Brisbane LGA, including the suburbs immediately around the subject site, are projected to grow over the next 20 years. In a growth area, there is need for diversity and choice of household product in multi-unit developments such as that proposed. b. The location of the site means that unit and townhouse development will help reinforce a compact form of

121 MD Code, PO6 and AO6.2 at Ex 10, pp 127-128. 122 56.2-1.2 7(a)(i) at Ex 10, p 101. 123 Exhibit 6, pp 49-50.

settlement, resulting in improved efficiencies and use of existing infrastructure in the surrounding area. c. The proposed site is well located to infrastructure, and the efficient use of infrastructure in rapid growth areas is important to ensure a sustainable economic return. d. The proposal is for 16 units/townhouses comprising two and three storeys. In view of the surrounding development in the area, there is a reasonable expectation from the local community that a new development approval would be similar to these approvals. While some of these matters include town planning issues (beyond my discipline), I am able to say as an economist that pressure to maximise (within reason) the development site such as the subject land will continue given it is difficult to amalgamate larger parcels of land and the scarcity of future development land within the Coorparoo area. 8.2 In summary, the subject development represents an opportunity, of which there are a limited number, 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. 8.3 The subject development represents an opportunity that contributes to the stated planning objectives, particularly in the South East Queensland Regional Plan 2009 and 2017, 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.

8.4 The subject proposal represents orderly development within the suburb of Camp Hill.” (Emphasis added).

[114] Those conclusions were reached after an analysis of seven considerations. First, existing and planned growth.124 Second, what Mr Duane described as the “missing middle housing” situation in suburbs such as Camp Hill.125 Third, population trends and projections.126 Fourth, the level of supply of accommodation of the type proposed.127 Fifth, Queensland Treasury’s Residential Land Development Activity profile.128 Sixth, the locality of the site and, in particular, its proximity to existing infrastructure.129 Lastly, the public/community attitudes affecting market and planning need.130

[115] It is not necessary to go into Mr Duane’s evidence in detail however, some particular aspects need to be addressed. The first matter is that the question of need was not solely limited to strict commercial drivers. That is, a consideration of the supply and demand situation in isolation. As Mr Duane emphasized on more than one occasion, it was not only an object of the planning scheme but in the community’s broader interest to have a variety of choices of accommodation types available. That is particularly so within areas intended to incorporate some form of multi-unit accommodation. The “missing middle houses” component is, speaking broadly, a reference to the fact that in Camp Hill and other suburbs in the general locality there was a low proportion of development of the type proposed.131 As I understand his evidence, that situation has existed from between at least 2012 to 2017.132 Those two propositions were not seriously challenged. Nor was the fact that Camp Hill as a location offered a number of attractive features for its residents. In particular in this context, Mr Duane referred to the availability of public transport and the proximity of parks, schools, hospitals, cafes, retail outlets, entertainment facilities and of course employment nodes including, in particular, access to the CBD.

124 Ibid, pp 10-15. 125 Ibid, pp 16-23. 126 Ibid, pp 24-38. 127 Ibid, pp 39-41. 128 Ibid, pp 42-44. 129 Ibid, pp 45-47. 130 Ibid, p 48. 131 T2-67 ll 1-24. 132 See generally Exhibit 6A.

[116] Where Mr Duane was most seriously challenged was in respect to the actual level of demand for a multi-unit residential development of the type proposed. In this context, Mr Duane was taken to paragraph 4.5 of his report which stated: “On this basis, within the local study area, an average of 477 new dwellings (houses and apartments, etc.) have been supplied over the past 9 years. This level of supply can be compared with ongoing demand for 116 dwellings which would likely be demanded based on official population projections over the period from 2011 to 2031. This indicates that actual supply delivered in each year being well above projected ongoing demand, reflective of the popularity of the area close to existing infrastructure, jobs and other entertainment and recreation facilities.” (Emphasis added).

[117] Not surprisingly, Mr Batty put to Mr Duane that this indicated that there was a material excess of supply. And, by inference, no real demand at all for the proposed development, particularly in circumstances of very low growth predictions.133 In response to this proposition, Mr Duane said:134 “You’re providing choice and competition, so it’s just not a simple supply and demand equation. There’s choice and diversity that also need to be taken into account because theoretically a supermarket could do all the sales volumes that’s needed in an area. That doesn’t provide choice and convenience and, so, it’s more than just demand. It’s – economics is demand and supply. Need overlays a number of other factors on top of that.”

[118] On balance, I consider that Mr Duane’s evidence does not establish any meaningful economic need for development of the type proposed.135 Also, the evidence strongly suggests that it is more likely than not that any economic need in the more traditional sense could, if not entirely then largely, be met by compliant development. Mr Duane conceded this would be the case when cross-examined by Mr Batty in respect of his consideration of the infrastructure and other services available to the site.136 Having regard to the totality of the evidence, it seems tolerably clear to me that Mr Duane’s

133 T2-77 ll 1-14; T2-80 ll 38-40. 134 T2-79 ll 40-45; also T2-65 ll 40-47; T2-66 ll 1-24. 135 In the sense where there is a shortfall in supply causing inconvenience or having other negative community consequences. 136 T2-84 ll 7-17.

concession in that regard would be equally applicable in respect of each of the other matters he considered relevant in determining the level of need.

[119] As Mr Duane pointed out a not insignificant purpose of the LMDRZ is to provide for diversity of housing.137 That is true. But for the same reasons, that diversity could also be achieved by compliant development.138

[120] However, consistent with Mr Duane’s conclusions,139 Mr Williamson submitted that Mr Duane’s evidence in particular, established that the proposed development would provide a community benefit as it represents a relatively unique “economic opportunity”.

[121] Sintra’s list of sufficient grounds relevantly states in this context: “3. The subject development represents an economic opportunity to develop a 1,620m² inner city site, which are limited in number, in a manner which will: (a) assist in achieving he infill development targets identified in the South-East Queensland Regional Plan; (b) reinforce a compact form of settlement, resulting in improved efficiencies and use of existing infrastructure; (c) provide a high degree of amenity; and (d) be served by significant levels of public transport infrastructure.”

[122] I accept that the objects identified above would be met by the proposed development. In this context I was referred to the observation of Rackemann DCJ in VG Projects v Brisbane City Council where his Honour said:140 “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.”

137 S6.2.1.2(2)(c) at Exhibit 10, p 98. 138 Exhibit 13, ground 4. 139 Also Exhibit 13, para 3. 140 [2016] QPELR 404 at [114].

[123] As already indicated, I can readily accept that the proposal achieves the objectives identified. That said however, it is of some significance that his Honour specifically referred in that passage to the fact that the proposal was not in conflict with the planning scheme.

[124] Mr Williamson provided flesh to paragraph 3 of Sintra’s sufficient grounds case in his written submissions141 and in his oral submissions. In response to a query from me concerning what the public interest component might be, Mr Williamson responded:142 “His Honour: Yes. What's the public interest element.

Mr Williamson: Because it - your Honour, it's attached to what we say is the development of the land which in 1620 square metres in size which is limited in number. That's the economic opportunity. That's really what underlies Mr Dwayne's report; that is, you might be able to find 400 square metres of land – might - in Camp Hill and you put four multiple dwellings on it and, yes, they will be achieved, contribute towards the infill, reinforce the compact form, provide a high 30 degree of amenity, close to public transport.

But our point is here we have a site which is amalgamated, or in one ownership, more correctly, and will be amalgamated, effectively, in due course. Sites of that size are limited in number. It presents an opportunity to reinforce a compact form of settlement. It does make efficient use of infrastructure more than a compliant proposal would. It provides a high degree of amenity and significant levels

141 Written submissions on behalf of the co-respondent, paras 106 to 121. 142 T5-7 ll 22-47; T5-8 ll 1-15.

of public - and access to significant levels of public and private infrastructure. So it's the size of the site coupled with the benefits that - economic benefits that flow with it. And I don't say that that's - I don't say that that's to demonstrate a need; what we say is it demonstrates an economic opportunity and the economic opportunity of the site is - and pursuing that economic opportunity is not a matter of private economics. It's a matter which is reflected in the planning scheme. And what underlies a lot of the planning strategies includes the efficient use of public and private infrastructure.

Your Honour, with respect to, then, the issue of grounds, effectively, the submissions made against our client's grounds case is that the case is weak. And, effectively, all the grounds that are advanced either can be achieved by client proposal or are not grounds at all. And, your Honour, we don't accept that that's a fair characterisation of the grounds in exhibit 13. And first and foremost, it's difficult to say that the relocation, refurbishment of the pre-1947 dwelling on the land as part of the proposal is anything other than in the public interest. That's clearly a matter contemplated by the planning scheme and it's a matter that's supported by the council in its submissions and we embrace those submissions…”

[125] On balance though, the evidence before me leads me to conclude that all of those objects and the introduction of diversity of choice and the meeting of the “missing middle housing” situation could be largely met by a compliant two storey multi-

residential unit development. Such a development would be likely to produce in the order of 12 units and the four additional units, while making more efficient use of the land and infrastructure does not constitute a major community benefit in my opinion.

[126] I will now deal with the balance of the grounds relied on but not necessarily in order.

[127] Those grounds concerning issues such as housing choice and diversity and the efficient use of land and infrastructure143 have already been dealt and require no further consideration. The same can be said in respect of those matters raised associated with the land proximity to various facilities including the Brisbane CBD.144 In respect of the relocation and refurbishment of the pre-1947 dwelling,145 the proposed development would result in a desirable outcome. In the present situation the subject dwelling is separated from the two character dwellings at the eastern end of Annie Street by the relatively non-descript post-1947 house. The relocation would result in an uninterrupted cluster of three character houses.

[128] While there can be no doubt that would be a desirable outcome it needs to be considered in the context that the existing pre-1947 dwelling is already largely protected under CP 2014. That is, its existence is not dependent upon this proposal proceeding.

[129] As to grounds 6 and 7, for the reasons given, while the proposed development may in many respects be consistent with low and low-medium density housing in the area, I am unable to accept that that is the case in respect of height. Further, I am not persuaded that its height, significantly above 9.5m, would not affect the “rhythm” of and sit comfortably in and make a contribution to the streetscape.

[130] As to grounds 8, 9, and 10, I accept that the proposal will have no adverse impacts by way of overshadowing, access to daylight, sunlight and privacy etc (ground 8). The same can be said in respect of the locational attributes of the site (ground 10). However, the height of the proposal is not within the reasonable expectations of the relevantly located surrounding residents.

143 Grounds 4 and 5. 144 Ground 10. 145 Grounds 1 and 2.

[131] I would add, finally, in respect of grounds 6 to 10, that I have some reservations about whether they could all truly be described as “grounds” for the purposes of s326 of SPA. And, even if they are properly so described, they are not particularly persuasive. The location of the land is not a consequence of the proposed development and otherwise these “grounds” really only reflect what would be expected from any compliant low medium density development.

[132] This was a finely balanced case. Indeed, one of the more difficult cases of this type I have had to determine. It is also one in my view about which reasonable minds may well differ. However, on balance, I have concluded that the grounds are not sufficient to outweigh the conflicts that would arise. To put it perhaps another way, in circumstances where, as is the case here, to allow the development to proceed would impermissibly cut across formally expressed planning strategies for the future.

[133] It is well recognised that this court should adopt a “self-limiting approach, at least when considering town planning matters…”146 That it is not the function of this court to substitute planning strategies has also been stated in a number of cases. In Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors147 the court said: “It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane. It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper (sic) has chosen to adopt…. Adopting the phraseology of those cases which deal with non- derogation (sic) principle, I feel that to allow this appeal would be to, ‘cut across’, in quite (sic) unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.”

[134] In Australian Capital Holdings Pty Ltd v Mackay City Council,148 Muir JA (with Holmes JA, as she then was and White J, as she then was, agreeing), after citing with approval a number of cases and, in particular, Grosser v Council of the City of Gold

146 Grosser at [38]. 147 [1990] QPLR 209 at 211. 148 [2008] QCA 157.

Coast149 also went on to cite with approval the reasoning of Jerrard JA in Leda Holdings Pty Ltd v Caboolture Shire Council & Ors:150 “Those authorities were cited to show that conflict between a development application and strategic plan was often fatal to the application, even prior to the introduction of s 4.13(5A) and its counterparts in 1992…(As has been said repeatedly, this Court is not the planning authority for this area and it is my view that it would be inappropriate for the court to approve a proposal which is squarely in conflict with the formally expressed planning strategies of that authority…the Strategic Plan and the Strategic Plan Map are legitimate planning tools adopted by a Local Authority for the future planning of the Local Authority Area … There may be cases where a departure from the Strategic Plan could be justified; where, for example, the planning strategies which it represents, having been overtaken by events (or for some other reason), clearly no longer have any application; or where it can be demonstrated plainly the land has been given a designation on the basis that was and remains invalid…” (Citations omitted).

[135] White J (as she then was) after agreeing with the reasons for judgment of Muir JA in Australian Capital Holdings went on to say:151 “(I) agree with his Honour in finding that there were insufficient planning grounds to justify approval of the development application by the Judge below departing, as he did, from the well-established principle that a planning court ought not substitute its own preferred planning strategies in place of carefully developed schemes of the planning authority, particularly where the schemes have recently been reviewed.”

[136] The clear planning strategy involved here is that the more dense three storey multi- unit development should be located within easy walking distance of a transport node.

149 (2001) 117 LGERA 153 at [55]. 150 [2006] QCA 271. 151 At [73].

This strategy is, among other things, intended to reduce adverse traffic/parking outcomes152 by encouraging the use of public, as opposed to private, transport.153

[137] In this context, it is necessary to say something about the fact that not only did the respondent approve the proposed development, it actively participated in these proceedings in support. Those matters are relevant and have to be taken into account but they are by no means determinative. As Robertson DCJ observed in Mackay Shopping Centre Pty Ltd v Mackay Regional Council,154 “…what counts in the end is the persuasiveness of the Council’s case…”

[138] It was tolerably clear that the most influential ground that the respondent considered justified approval was the creation of a “node” of three character houses. Otherwise I was simply referred to the other ground set out in Exhibit 13.155 It was also apparent to me that in focussing on the “stark and clear” conflict concerning height, the respondent otherwise failed to have sufficient regard to the conflict with the overall outcome contemplated by s 6-2-2.2(7).

[139] Given the attention already given to the issues of conflict and grounds, I do not consider it necessary to say more than that, on the evidence before me, the respondent has either underestimated the level of conflict and/or overstated the benefits advanced in favour of the proposal.

Orders

[140] For the reasons set out the orders of the court are: 1. The appeal is allowed. 2. I will hear further from the parties as to any consequential orders.

152 No traffic related issues arose in the proceeding. 153 E.g. See s 6.2.1.2(4)(c) of the LMDRZ Code. 154 [2013] QPEC 29. 155 Exhibit 10, p 99.