PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION: Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22 PARTIES: BODY CORPORATE FOR MAYFAIR RESIDENCES COMMUNITY TITLES SCHEME 31233 (appellant) v BRISBANE CITY COUNCIL (respondent) and THE TRUSTEE FOR THE ATHOL PLACE PROPERTY TRUST (co-respondent) FILE NO/S: 3467 of 2016 DIVISION: Planning and Environment Court PROCEEDING: Planning and Environment Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 26 April 2017 DELIVERED AT: Brisbane HEARING DATE: 23, 24 and 28, 29, 31 March 2017 and 5 April 2017 JUDGE: Kefford DCJ ORDER: The appeal will, in due course, be dismissed. I will adjourn the further hearing to allow for the formulation of conditions. CATCHWORDS: PLANNING AND ENVIRONMENT – appeal against approval of a development application for material change of use – proposed development for re-use of heritage place, office, health care services and food and drink outlet – whether there is conflict occasioned by bulk and scale – whether there is conflict with the planning intent for the Petrie Terrace and Spring Hill Neighbourhood Plan area - whether there will be unacceptable amenity and character impacts – whether cultural heritage significance is protected - whether there are sufficient grounds to approve the proposed development despite conflict with the planning scheme – whether there is a need for the proposed development 2

Sustainable Planning Act 2009 (Qld), s 314, s 324, s 326, s 462, s 493, s 495 Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342; [2007] QPEC 112, approved Arksmead Pty Ltd v Council of the City of Gold Coast [1999] QPELR 322, cited All-A-Wah Carapark Pty Ltd v Noosa Shire Council [1989] QPELR 155, cited Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPELR 614, approved Caltabiano & Ors v Brisbane City Council [2005] QPELR 60; [2004] QPEC 36, approved K Page Main Beach v Gold Coast City Council [2011] QPELR 406; [2011] QPEC 1, approved Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63; [2012] QPELR 354; [2011] QCA 358, applied Newman & Ors v Brisbane City Council & Ors [2011] QPEC 87; [2011] QPELR 786, approved Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480; [2008] QPEC 7, approved Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64, approved Wattlevilla Pty Ltd v Western Downs Regional Council [2015] QPELR 21; [2014] QPEC 047, approved Weightman v Gold Coast City Council [2003] 2 QdR 441; (2002) 121 LGERA 161; [2003] QPELR 43; [2002] QCA 234, applied Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 QdR 273; [2005] QCA 262, applied Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, applied COUNSEL: M J Batty for the appellant J G Lyons for the respondent C L Hughes QC and N Loos for the co-respondent SOLICITORS: Thynne Macartney for the appellant Brisbane City Legal Practice for the respondent Holding Redlich for the co-respondent 3

Table of contents Introduction ...... 3 The subject site ...... 4 The locality ...... 4 The proposal ...... 6 The decision framework ...... 7 The issues ...... 8 City Plan 2014 ...... 9 Petrie Terrace and Spring Hill Neighbourhood Plan ...... 10 Built form: height, bulk, scale, setbacks, transitions and separations ...... 14 Planning intent ...... 24 Architectural, character and heritage impacts ...... 34 Impact of the extinguishment of the residential land use on the heritage values ...... 37 Impact of the built form on the heritage and character significance of Athol Place ...... 41 Amenity and landscaping and reasonable expectations ...... 45 Need ...... 50 Grounds ...... 53 Need ...... 54 Other matters of merit ...... 59 Conclusion ...... 60

Introduction

[1] This appeal is against the decision of the respondent, Brisbane City Council (“Council”) to approve the co-respondent’s development application to facilitate a partial demolition and adaptive reuse of a two storey heritage building, together with the development of a new eight storey commercial office building at 307 Wickham Terrace, Spring Hill.

[2] Mayfair Residences is a 12 storey residential building located opposite the subject site. The appellant is the body corporate for Mayfair Residences, which opposes the development of an eight storey commercial building on the subject site. 4

The subject site

[3] The subject site has an area of 840 square metres. It has street frontages of approximately 16 metres to Wickham Terrace on its southern boundary, 51 metres to Birley Street on its eastern boundary and 16 metres to Penton Lane on its northern boundary.1

[4] The subject site slopes down from a high point on Wickham Terrace (at about RL45.9m) to the rear boundary at Penton Lane (at about RL41.0m). The fall between Wickham Terrace and Penton Lane is the equivalent of about two storeys.2

[5] The subject site contains a two storey Georgian-style terrace house known as Athol Place, which is located on the Wickham Terrace frontage of the site. Athol Place is identified as both a State and a local heritage place.3

[6] Athol Place is currently used for medical consulting rooms on the ground floor (accommodating two to three doctors) and three residential flats on the upper levels (although only one is presently occupied).4

The locality

[7] Wickham Terrace represents the southern edge of the suburb of Spring Hill. As the joint report of the town planners noted, and with which the visual amenity experts agreed, Spring Hill has an eclectic mix of building types and land use. The eclectic mix is a consequence of, in part, its age (being one of Brisbane’s oldest suburbs), sustained evolution by gentrification, the presence of higher density short term accommodation and residential developments and being the home of many health, government and educational institutions.5

[8] The topography of Spring Hill is characterised by a series of ridges, along Wickham Terrace, College Road, Leichardt Street, St Paul’s Terrace and Gregory Terrace, with valleys in between. This undulating topography creates interesting relationships between buildings and contributes to the eclectic nature of the suburb.6

1 Joint Report on Town Planning – Exhibit 5 p 2 [3] and [4]. 2 Joint Report on Town Planning – Exhibit 5 p 2 [5]. 3 Joint Report on Town Planning – Exhibit 5 p 2 [7]. 4 Joint Report on Visual Amenity – Exhibit 4 p 1 [2.5]. 5 Joint Report on Town Planning – Exhibit 5 p 2 [8]; Worroll T2-33/L34 – T2-34/L9; Peabody T2- 76/L29-36. 6 Joint Report on Town Planning – Exhibit 5 p 2 [9]. 5

[9] To the west of the subject site, at 309 Wickham Terrace, is a four storey multi-unit residential building. It presents as three storeys at Wickham Terrace with a partial fourth storey apparent from Penton Lane.7

[10] Further to the west along Wickham Terrace is SOHO Brisbane, a five storey short- term accommodation building, and Hotel Urban, a 15 storey short-term accommodation and mixed use building that reads as 13 storeys from Wickham Terrace but 15 storeys from Penton Lane. Hotel Urban is an unusually shaped building on a curved north-east/south-west axis that extends (via its multi-level parking) through to Lilley Street at the rear. It touches Penton Lane about half way along its length, at which point it has an additional access.8

[11] To the north of the subject site, across Penton Lane, is 87 Birley Street, which is improved by a two storey dwelling house constructed prior to 1946. The dwelling house has frontage to both Birley Street and Penton Lane, but is orientated east west with minimal outlook towards the subject site.9

[12] Penton Lane has a service nature in that it provides access to car parking at the rear of 309 Wickham Terrace, SOHO Brisbane and Hotel Urban.10

[13] To the immediate east, across Birley Street, is 281-287 Wickham Terrace, which is improved by a heritage building known as Bryntirion and a 13 storey residential building known as Mayfair Residences. Bryntirion is a State and local heritage place that has been adapted for use for commercial purposes, including a paediatric dental clinic. Mayfair Residences sits behind Bryntirion and contains ten residential levels, comprising 51 units, and three car park levels.11

[14] Further to the east along Wickham Terrace is Brisbane Private Hospital. In addition to its extensive frontage to Wickham Terrace, Brisbane Private Hospital has a significant frontage to Birley Street, behind Mayfair Residences, which affords vehicular access to some of the car parking at the hospital. The hospital is approximately six storeys in height. It is currently undergoing an expansion focusing

7 Joint Report on Town Planning – Exhibit 5 p 2 [11]. 8 Joint Report on Town Planning – Exhibit 5 p 3 [15]. 9 Joint Report on Town Planning – Exhibit 5 p 2 [12]; Report on Architecture and Visual Amenity by Mr Worroll – Exhibit 6 p 2. 10 Joint Report on Town Planning – Exhibit 5 p 23 [119] and p 24 [132]; Report on Architecture and Visual Amenity by Mr Worroll – Exhibit 6 p 2. 11 Joint Report on Town Planning – Exhibit 5 p 3 [13]. 6

on a rehabilitation facility, wards and theatres, with limited provision for medical consulting suites. Other land uses to the east along Wickham Terrace are primarily focussed around the hospital, including food and drink outlets, pharmacy, medical suits and short term accommodation.12

[15] Across Wickham Terrace, Wickham Park falls away to the south.13

[16] There is little semblance of residential character (in terms of permanent residents) remaining on this part of Wickham Terrace. The immediate locality is characterised by its concentration of medical facilities, including Brisbane Private Hospital, and short-term accommodation.14

The proposal

[17] The proposed development involves:

(a) the partial demolition and adaptive reuse of Athol Place, whereby:

(i) a now dilapidated rear addition to the building, made in 1929, will be removed to expose the rear of the original stone northern exterior of the terrace houses constructed from “Brisbane tuff”;

(ii) some internal walls will be removed; and

(iii) the interior of Athol Place will be used for a combination of consulting rooms, a shop/food and drink outlet and, in the centre of the three terrace houses at ground level, an interpretation centre/foyer showcasing the history of the building and its occupants;

(b) development of a new eight storey commercial office building behind Athol Place for offices and health care services (principally medical consulting rooms) and a rooftop food and drink outlet; and

(c) 23 car spaces, 17 bicycle spaces and one van space across two basement levels.

12 Joint Report on Town Planning – Exhibit 5 p 3 [14]; Report on Architecture and Visual Amenity by Mr Worroll – Exhibit 6 p 2; Joint Report on Visual Amenity – Exhibit 3 p 2 [3.3]. 13 Joint Report on Town Planning – Exhibit 5 p 3 [16]. 14 Worrell T2-34/L24-30. Report on Architecture and Visual Amenity by Mr Worrell - Exhibit 6 p 11. 7

[18] There is to be a pedestrian entry from Wickham Terrace to the ground floor of Athol Place. The proposal also includes a ground level public landscaped terrace between the heritage and commercial buildings. The terrace is accessible from both the interpretation centre and the coffee shop proposed on the ground floor of Athol Place. It is also proposed to be accessible to pedestrians from Birley Street. The terrace design produces separation and space between Athol Place and the new commercial building at the ground and first floors.

[19] Vehicular access to basement level one is via a crossover on Penton Lane and vehicular access to basement level two is via a crossover on Birley Street. The levels operate independently of each other.

The decision framework

[20] The appeal was commenced by the appellant under s 462 of the Sustainable Planning Act 2009 (Qld). Under s 495, the appeal proceeds by way of hearing anew and must be decided based on the laws and policies applying when the development application was made, although the court may give weight to any new laws and policies that it considers appropriate.

[21] Under s 493 of the Sustainable Planning Act 2009, the co-respondent bears the onus of establishing that the appeal should be dismissed and the development application approved.

[22] The development application was made on 7 July 2015. At that time, Brisbane City Plan 2014 (“City Plan 2014”) was in force.

[23] During the hearing, and in the written submissions, passing reference was made to two draft Spring Hill Neighbourhood Plans. The first draft was publicly notified in 2015. The second draft Spring Hill Neighbourhood Plan was amended in September 2016 but must undergo public notification.15 It is unnecessary for either version of the draft to be considered. It was common ground between the parties that the draft planning documents would not change the result in the appeal: they reflect a

15 The Minister for Infrastructure, Local Government and Planning has advised Council that the amendments were considered significantly different from the version of the amendment that was publicly notified and declined to give Council approval to adopt the proposed amendment to City Plan 2014 without the 2016 version first undergoing public consultation. 8

continuation of a similar planning direction as that contained in the current Petrie Terrace and Spring Hill Neighbourhood Plan in City Plan 2014.

[24] As the development application was impact assessable, it is to be assessed having regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with s 324 and s 326. Pursuant to s 326, a decision must not conflict with City Plan 2014 unless, relevantly, there are sufficient grounds to justify the decision despite the conflict.

[25] Conflict means “at variance or disagree with”.16

[26] The word “grounds” is defined in Schedule 3 of the Sustainable Planning Act 2009 as: “1. Grounds means matters of public interest. 2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”

The issues

[27] The appellant initially alleged conflict with more than 70 provisions of City Plan 2014. However, on the first day of the hearing, the appellant amended its notice of appeal, removing allegations of conflict with respect to traffic issues. The appellant also tendered a document titled “Issues”, which identified seven questions (relating to 67 provisions of City Plan) that Counsel for the appellant submitted would require determination. In closing addresses Counsel for the appellant confirmed that the issues for consideration were limited to those dealt with in the written submissions.17

[28] The issues were summarised by the appellant as relating to:

(a) planning intent;

(b) built form in terms of bulk and scale (including density or intensity of the development);

(c) architectural, character and heritage impacts;

(d) amenity and landscaping;

16 Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 QdR 273 at 286 [23]; [2005] QCA 262; Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 at 72 [16]; [2012] QPELR 354; [2011] QCA 358. 17 T5-27. 9

(e) setbacks, transitions and separations;

(f) reasonable expectations;

(g) need; and

(h) sufficiency of grounds to approve notwithstanding conflict.

[29] The appellant contends that the proposed development is, in effect, an overdevelopment of the subject site, involving a bulk and scale that exceeds all of the usual measures of development intensity.

City Plan 2014

[30] Under City Plan 2014, the subject site is, relevantly:

(a) located in the High Density Residential (Up to 15 storeys) Zone;

(b) included in the Petrie Terrace and Spring Hill Neighbourhood Plan Area and identified within the High-rise Residential Precinct (NPP-003) and as special area 22; and

(c) subject to the Heritage Overlay, which identifies the subject site as a State and local heritage place.

[31] For impact assessable development, City Plan 2014 requires development to be assessed against all identified codes in the assessment criteria column (where relevant) and the planning scheme, to the extent relevant.18

[32] The codes that are relevant to an assessment of the proposed development in the context of this appeal are the Petrie Terrace and Spring Hill Neighbourhood Plan Code, the High Density Residential Zone Code, the Centre or Mixed Use Code and the Heritage Overlay Code.

[33] Insofar as codes are concerned, City Plan 2014 contemplates that compliance may be achieved by compliance with the acceptable outcome or the performance outcome or the purpose and overall outcomes of the code.19 In a neighbourhood plan code,

18 See s 5.3.3(d) of City Plan 2014 – Planning Scheme Extracts - Exhibit 2A p 76. 19 See s 5.3.3(c) of City Plan 2014 - Planning Scheme Extracts - Exhibit 2A pp 75 - 76. Although this section relates to determining the assessment criteria for code assessable development, it provides guidance on the means of demonstrating compliance with a code. 10

compliance with acceptable outcomes is deemed to achieve the associated performance outcomes and compliance with performance outcomes is deemed to achieve the overall outcomes.20

[34] To the extent there is inconsistency between provisions in the planning scheme, City Plan 2014 relevantly provides that “neighbourhood plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency” and “zone codes prevail over use codes and other development codes to the extent of the inconsistency”.21

[35] The purpose of the Petrie Terrace and Spring Hill Neighbourhood Plan Code is to “provide finer grained planning at a local level for the Petrie Terrace and Spring Hill neighbourhood plan area”.

[36] In light of this purpose and the hierarchy of assessment criteria, the appellant submitted that many of the alleged conflicts with City Plan 2014 fall to be determined by reference to the Petrie Terrace and Spring Hill Neighbourhood Plan.

Petrie Terrace and Spring Hill Neighbourhood Plan

[37] The purpose of the Petrie Terrace and Spring Hill Neighbourhood Plan Code is to be achieved through the overall outcomes.22 They include overall outcomes for the neighbourhood plan area generally (overall outcomes (3)(a) – (f)), overall outcomes for each precinct and sub-precinct (overall outcomes (4) – (9)) and overall outcomes for development in a special area identified in Figure a or Figure b (overall outcomes (10)(a) – (c)).

[38] Overall outcomes for the neighbourhood plan area generally are set out in s 7.2.16.1.2(3) of City Plan 2014 which provides:23 “(a) The neighbourhood plan protects the character of the built environment by restricting the demolition of buildings that have either character or heritage significance. Petrie Terrace and Spring Hill were two of the first parts of the city to be settled and as such, contain some of the oldest buildings and traditional character streetscape in the city. Traditional modest residential dwellings erected on small allotments are the hallmark of Petrie Terrace

20 See s 7.1(6) of City Plan 2014 - Planning Scheme Extracts - Exhibit 2A p 91. 21 See s 1.5 of City Plan 2014 - Planning Scheme Extracts - Exhibit 2A p 14. 22 See 7.2.6.1.2(2) - Planning Scheme Extracts - Exhibit 2A p 94. 23 Planning Scheme Extracts - Exhibit 2A pp 94 – 95. 11

and Spring Hill. These buildings and areas make a significant contribution to Brisbane’s heritage and character and are to be retained. (b) Any new development is to be sympathetic to the scale and character of the original urban development pattern and siting of existing buildings. Development in the identified heritage protection precincts is to retain and reinforce the original character of buildings predominating during the period 1850 to 1920. Proposals in other precincts, subject to building design and character requirements, are to retain and improve upon the existing character by incorporating the main identifiable features, materials and detailing of buildings that predominated during the period from 1850 to 1935. (c) The high level of inner-city residential amenity prevalent in Petrie Terrace and Spring Hill is not to be reduced through commercial expansion, increase in non-local traffic movements, City Centre commuter parking overspill and general deterioration of housing stock. (d) Traditional character is to be protected from unsympathetic proposals in order to attract people to live within walking distance of the City Centre by improving the amenity and attractiveness of the neighbourhood plan area and encouraging an upgrading of traditional housing stock. (e) Higher density residential and commercial development is to be contained to those areas identified as suitable for such uses. The expansion of commercial uses in the neighbourhood plan area outside the City Centre, or other areas well served by both bus and rail, is discouraged in order to reduce impacts on residential areas and the traffic network. (f) Population increase and housing choice is encouraged through providing a range of dwelling types across the residential precincts. Residential and mixed-use development is encouraged in the commercial precincts by allowing residential floor space to be provided in addition to that permitted for commercial use and by creating environments in the commercial areas conducive to residential amenity.”24

[39] The overall outcomes that apply specifically to the High-rise Residential Precinct (NPP-003) are contained within s 7.2.16.1.2(6). They provide:25 “(a) The precinct comprises allotments which are generally larger, road capacities which are greater, services which are readily augmented if necessary and where the amenity, character or available views encourage such uses. Generally, high-rise apartments are to be concentrated in the southern and western residential parts of Spring Hill following the ridgelines along Leichhardt Street and Wickham Terrace.

24 Emphasis added. 25 Planning Scheme Extracts - Exhibit 2A p 96. 12

(b) The precinct is particularly suited to high-rise housing, partly because of its relative closeness to the City Centre, and partly because of its topographic advantages, with ridges along the main roads and most of the remaining land sloping to the north or north-east. (c) Considering the diverse range of existing residential and non-residential uses, and proximity of this precinct to the commercial precincts to the east, it is intended that the precinct develops for a wide range of residential uses. As it is intended that there should be a variety of residential types, and as it is desirable to allow the opportunity to develop the small sites in the precinct, it is also possible to erect low- rise apartments, attached houses or detached houses in accordance with the provisions applicable in the Low-rise residential precinct (Petrie Terrace and Spring Hill neighbourhood plan/NPP-002). (d) The following uses are considered consistent with the outcomes sought for the precinct: (i) theatre if in special area 21 identified in Figure b; (ii) indoor sport and recreation if in special area 6 or special area 20 identified in Figure a; (iii) centre activities activity group if in special area 2 or special area 22 identified in Figure a; (iv) hospital, office and health care services if in special area 8 identified in Figure a; (v) food and drink outlet if in special area 9 identified in Figure a.”26

[40] Overall outcome (10) provides further guidance with respect to development in a special area identified in Figure a (Spring Hill special areas) or Figure b (Petrie Terrace sub-precincts and special areas). It provides:27 “(a) A special area is a number of existing sites that do not comply with the outcomes sought for the precinct in which the site is located. However, where the use is generally well established and accepted by the community, it has been included as a special area to provide for the continuation of the use. Reasonable intensification and expansion of the use is possible provided it is located within the defined boundaries of the special area. (b) Other special areas have been created to provide for the inclusion of alternative purposes or consideration of slightly higher residential intensities, where a particular planning problem has been identified and the potential exists to rectify it by applying more flexible planning provisions.

26 Emphasis added. 27 Planning Scheme Extracts - Exhibit 2A pp 97 – 98. 13

(c) It is intended that all development in special areas complies with the provision of this code pertaining to the precinct and sub-precinct if applicable in which the site is located. However, where the functions and other intrinsic characteristics of the particular purpose or any special circumstances of the special area make such compliance unreasonable, variation is possible provided the development exhibits the built form character intended for the precinct. If for some reason an existing use ceases, the site concerned should be developed under the other provisions of this code that apply in the precinct, and sub- precinct if applicable, in which it is located. However, where lawfully erected existing buildings are demolished, they may be rebuilt provided the new development does not contravene this code to any greater extent.”28

[41] The performance outcomes and acceptable outcomes in the Petrie Terrace and Spring Hill Neighbourhood Plan Code are also divided into general provisions that apply to the neighbourhood plan area (namely performance outcomes PO1 – PO7 and the related acceptable outcomes) and specific provisions that apply to particular precincts and sub-precincts (namely performance outcomes PO8 – PO26 and the related acceptable outcomes). There are no performance outcomes or acceptable outcomes that specifically relate to the special areas.

[42] Performance outcomes PO8, PO9, PO10 and PO11 apply generally to residential precincts and provide as follows:29 “PO8 Development building size and bulk are of a density consistent with the nature of the locality and retain an appropriate residential scale and relationship with other buildings. PO9 Development provides buildings that area of a scale and design generally compatible with those nearby buildings and contribute positively to the amenity and character of the local area. PO10 The building setbacks complement the setbacks prevailing in the street. PO11 Development of buildings is well separated to allow for natural light penetration, air circulation, outlook and privacy.”

28 Emphasis added 29 Planning Scheme Extracts - Exhibit 2A pp 101 – 103. 14

[43] The site requirements for the High-rise Residential Precinct (NPP-003) are in the following terms:30 Performance outcomes Acceptable outcomes PO16 AO16.1 Development uses sites large Development of all existing lots within the enough to accommodate a precinct may be for the purpose of dwelling building form of an house irrespective of site area. appropriate size and bulk. AO16.2 Development of building sites in the precinct have a minimum site area of 1,500m2 and a minimum frontage length of 40m. Note-To provide a variety of residential types and opportunities to develop small sites, development on sites having a lesser area and frontage is acceptable provided such development is consistent with the intent and requirements of the Low-rise residential precinct (Petrie Terrace and Spring Hill neighbourhood plan/NPP-002) and Low-rise residential 4 sub-precinct (Petrie Terrace and Spring Hill neighbourhood plan/NPP-002d).

Built form: height, bulk, scale, setbacks, transitions and separations

[44] There is no contest about the height of the building. It is to be eight storeys. Acceptable Outcome AO1 of the Petrie Terrace and Spring Hill Local Plan Code permits ten storeys.

[45] However, the appellant alleges that the proposed development would be of an unacceptable built form, including with respect to setbacks, transition and separation and that a decision to approve the proposed development would conflict with:

(a) overall outcomes 10(a) and 10(c) and performance outcomes PO8, PO9, PO10, PO11 and PO16 of the Petrie Terrace and Spring Hill Local Plan Code;

(b) overall outcome 5(e) of the High Density Residential Zone Code; and

(c) overall outcome 2(d) and performance outcome PO19 of the Centre or Mixed Use Code.

[46] The appellant also alleges conflict with other provisions of the High Density Residential Zone Code and the Centre or Mixed Use Code. However, the appellant submits that conflict with the provisions referred to in paragraph [45] is determinative

30 Planning Scheme Extracts - Exhibit 2A p 107. 15

of the other alleged conflicts.31 Accordingly, it is unnecessary to consider those other provisions.

[47] Overall outcome (5)(c) of the High Density Residential Zone Code provides:32 “Development provides for a building that incorporates a height and setback that: (i) provides a sensitive transition at the edge of the High density residential zone or zone precinct and adjoining lower density zones or zone precincts; (ii) responds to the existing and intended uses and built form in each particular adjoining zone.”

[48] Overall outcome (2)(d) of the Centre or Mixed Use Code provides:33 “Development ensures that the site area and frontage is sufficient for the scale and form of development and is sufficient to manage the impacts to a lower intensity use or a sensitive use in and adjoining the development.”

[49] Performance outcome PO19 of the Centre or Mixed Use Code provides:34 “PO19 Development ensures that the building bulk and scale is consistent with the intended form and character of the centre, mixed use or local area considering: (a) existing buildings to be retained; (b) existing significant vegetation; (c) significant infrastructure constraints; (d) adjoining existing and proposed building heights; (e) adjoining existing and proposed building setbacks and separation of buildings necessary to ensure impacts on amenity and privacy are minimised; (f) building height transitions where required.”

[50] Mr Peabody (the architecture and visual amenity expert called by the appellant) and Mr Buckley (the town planner called by the appellant) regard the proposal as an overdevelopment of the subject site.

[51] Both Mr Peabody and Mr Buckley placed a deal of reliance upon a comparison between the proposed development and “measurable elements” in City Plan 2014,

31 Written submissions on behalf of the Appellant p 14 [74]. 32 Planning Scheme Extracts - Exhibit 2A p 90. 33 Planning Scheme Extracts - Exhibit 2A p 132. 34 Planning Scheme Extracts - Exhibit 2A pp 138 – 139. 16

namely plot ratio, site cover, setbacks and separation distances.35 The comparison exercise reveals that:

(a) the gross floor area of the proposed development is 2,804 square metres, which equates to a plot ratio of 3.34 and is 5.56 times the gross floor area in acceptable outcome AO8.3;

(b) the site cover is 87.38 per cent, which is 2.91 times the site cover in acceptable outcome AO9.2 for the first two storeys above ground level and 4.37 times the acceptable outcome for the third storey above ground level and above;

(c) the setbacks to the road alignments are 0.250 metres to Birley Street and between 3.385 metres and 1.857 metres to Penton Lane, which is less than the 6 metre setback provided for in acceptable outcome AO10.1;

(d) the side boundary setback is zero for 11.6 metres of the tower elevation and 1.4 metres for the balance, which is less than the minimum side boundary building setback of the greater of 50 per cent of the building height or three metres provided for in acceptable outcome AO11.1; and

(e) the separation between the proposed development and the neighbouring three storey residential building is six metres for facing habitable rooms with windows or balconies and 4.6 metres for habitable rooms or balconies facing non-habitable rooms with windows or blank walls. This is less than the 12 metres and nine metres stipulated in Table 9.3.3.3.E – Building Separation Requirements for a building of three to five storeys. Table 9.3.3.3.E – Building Separation Requirements is called up by acceptable outcomes AO25.1 and AO25.2 of the Centre or Mixed Use Code.

[52] As is noted, these “measurable elements” appear in acceptable outcomes in the Petrie Terrace and Spring Hill Local Plan Code and the Centre or Mixed Use Code.

35 Mr Peabody’s opinions with respect to over-development and detrimental visual impact were all premised on the extent to which the “measurable elements” were exceeded. See Joint Report on Visual Amenity - Exhibit 3 at para 7.4.9, 7.4.14, 7.4.20, 7.4.23, 7.4.33 and 7.4.41. With respect to Mr Buckley’s opinions, see Joint Report on Town Planning - Exhibit 5 at para 46, 85, 87, 146, 162(c), 173 and 200. 17

[53] In K Page Main Beach v Gold Coast City Council [2011] QPELR 406; [2011] QPEC 1, Rackemann DCJ observed at 412 [36]: “A proposed building which exceeds the acceptable solution as substantially as this one does would ordinarily attract somewhat closer scrutiny than one which exceeded the designation to only a minor extent, but ultimately the test is not whether the proposal approximates the acceptable solution, but rather whether it meets the performance criterion.”36

[54] Although those observations relate to the Gold Coast planning scheme, they are apposite here. Acceptable outcomes provide quantitative standards that, if complied with, demonstrate the acceptability of a proposal without the need to have regard to the specific circumstances of the site or the locality in which the development is proposed. Compliance with the acceptable outcomes is not mandatory under City Plan 2014. Compliance with a code can also be demonstrated by compliance with either performance outcomes or the purpose and overall outcomes of a code.

[55] Here, the proposed development substantially exceeds many of the quantitative standards in the acceptable outcomes. As such, it must be scrutinised in terms of its compliance with either the performance outcomes or the purpose and overall outcomes of the relevant codes.

[56] Performance outcomes PO8, PO9, PO10, PO11 and PO16 of the Petrie Terrace and Spring Hill Local Plan Code, overall outcome 5(e) of the High Density Residential Zone Code and overall outcome 2(d) and performance outcome PO19 of the Centre or Mixed Use Code are qualitative in their terms. Each calls for consideration of the proposed development in the context of the existing development around the subject site.

[57] With respect to the consistency and compatibility of the proposed development with the development in the locality, the appellant relies on Exhibits 19, 20 and 31. Those exhibits provide a numerical analysis of the “measurable elements” of the proposed development compared to those of surrounding developments.

36 Footnotes omitted. 18

[58] The numerical analysis reveals the following site cover and plot ratio for surrounding developments: Development Site cover Plot ratio Proposed development 87.38% 3.34 x site area Hotel Urban 61 – 71% 2.9 – 3 x site area Soho 49% 1.8 x site area 309 Wickham Terrace 40% Mayfair Residences and Bryntirion 48% Brisbane Private Hospital 72% Tower Mill 67%

[59] Exhibit 21 indicates that the side elevation of the proposed development that faces 309 Wickham Terrace has a surface area of approximately 800 square metres, of which approximately 35 square metres is a cut-out for a green wall.

[60] Similarly, when considering the built form issues in the context of the existing building to be retained on the subject site, Athol Place, the appellant submits the excessive size, bulk and scale is best represented by the fact that the proposed development would result in an approximately seven-fold increase in gross floor area.

[61] With respect to comparisons based on metrics or numerical analysis, Rackemann DCJ observed in Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64 at [53]: “Whilst such comparisons may be of some utility, as a starting point, their limitations must be acknowledged. The exercise focuses on certain existing development only and does not assist in understanding the likely visual presentation of the proposed building viewed in perspective and in context.”

[62] Those observations are apt in this case. Here, the photomontages prepared by Ms Renata and the approved plans provide valuable assistance in understanding the likely visual presentation of the proposed building and assessing its appropriateness. The photographs in the reports37, confirmed by a site inspection, also assist in forming an impression of the locality.

[63] The photomontages depict the proposed development as it would be perceived from the opposite side of Wickham Terrace (proximate to the intersection with Birley

37 See, in particular, Book of Documents Volume 1 - Exhibit 1A pp 59 - 64 and 182; Joint Report on Town Planning - Exhibit 5 pp 38 and 78 – 82; Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 pp 8 and 9; and Statement of Evidence of Mr Lynch - Exhibit 7 pp 2 and 3. 19

Street); a balcony on the south-western corner of Mayfair Residences; and the rooftop terrace on top of the building at 400 George Street in the city.

[64] Reference to the photographs and the photomontages demonstrates that:

(a) development in the locality includes tall and bulky buildings juxtaposed with much smaller buildings, including heritage buildings, such as occurs with the Mayfair Residences and Bryntirion;38

(b) Penton Lane has a service nature that is dominated by the 15 storey Hotel Urban;39 and

(c) the proposed development, viewed from a distant vantage point, is consistent with the existing modulated skyline in the locality – as much was also agreed by the visual amenity experts, including with respect to the view that would be gained from the ridge of Gregory Terrace.

[65] The visual impact will, however, differ depending on the vantage point of the viewer. Each of the town planners and the visual amenity experts considered the relationship of the proposed development to Athol Place / Wickham Terrace, Birley Street, Penton Lane, 309 Wickham Terrace and Mayfair Residences.

[66] Mr Peabody considered that the tower element of the proposed development will be over-scaled for the subject site, would crowd Athol Place and will be physically and visually dominating and overbearing on Birley Street and Penton Lane, particularly given the minimal setback, limited articulation and topography. He considered that the tower element would be perceived to its greatest detriment from the existing two storey residence on the northern side of Penton Lane. He also considered there to be detrimental visual impact from the other vantage points, with the building appearing as an out of character rectilinear envelope when viewed from locations such as Mayfair Residences. Mr Buckley expressed similar concerns, particularly in relation to the lack of setback and “building to building ‘open space’” in circumstances where Penton Lane separates the high-density precinct from the low-rise residential precinct.

38 See the photo of Mayfair Residences and Bryntirion at Joint Report on Town Planning - Exhibit 5 p 38. 39 See the photos at Joint Report on Town Planning - Exhibit 5 p 78. 20

[67] Mr Worroll considered the building form appropriate for the area given the eclectic building types and styles in Spring Hill. He also considered that the two storey terrace area will provide relief to the building envelope and form along Birley Street. Mr Worroll also noted that the proposed vertical layering of the building form and the articulation of the building through the use of a variety of building elements and finishes would reduce the scale of the building.

[68] Whether the ultimate outcome is acceptable in responding to the performance outcomes and overall outcomes with respect to height, bulk, scale, setbacks, transitions and separations is an evaluative judgment on which minds might differ.40

[69] I consider that there is no conflict with performance outcomes PO8, PO9, PO11 and PO16 of the Petrie Terrace and Spring Hill Local Plan Code, overall outcome 5(e) of the High Density Residential Zone Code and overall outcome 2(d) and performance outcome PO19 of the Centre or Mixed Use Code, and that the ultimate outcome is acceptable, for the following reasons:

(a) as was acknowledged by Mr Peabody, the field of view of an observer at each of these identified closer vantage points would include an existing bulky, tall building.41 To the west, Hotel Urban cannot be blocked from view, either from Wickham Terrace or from Penton Lane42. To the east there is Mayfair Residences, the Brisbane Private Hospital and the Tower Mill;

(b) the tower element is set back between 19 to 22 metres from Wickham Terrace and I accept the evidence of Mr Worrell that the view of the proposed commercial tower from Wickham Terrace:

(i) will be filtered in many placed by the mature existing tree canopy along the southern side of Wickham Terrace; and

(ii) when approaching from the west, will be impeded by the existing buildings along Wickham Terrace;43

40 Caltabiano & Ors v Brisbane City Council [2005] QPELR 60 at 64 [24]; [2004] QPEC 36; Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64 at [62] 41 Peabody T4-3/L22-36. 42 See Joint Report on Town Planning - Exhibit 5 p 78 Photo 1. 43 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 p 2. 21

(c) the setback to Athol Place is appropriate and allows for Athol Place to be read independently of the proposed commercial building;44

(d) with respect to the impact on, and relationship with other buildings in, Birley Street:

(i) the western side of Birley Street contains buildings of various typologies which have zero setback to the street edge, including Athol Place;45

(ii) the setback is sympathetic to the character and the original development pattern and siting of other buildings in the Spring Hill area, which were characteristically positioned close to the street frontage;46

(iii) the courtyard or two storey terrace between the old and the new buildings provides considerable relief in the building form when viewed from the street;47

(iv) on the eastern side of Birley Street there is a six metre wide landscaped path with established mature trees and landscaping approximately three to four storeys high, the canopy of which will partially filter the view to the upper levels of the proposed development;48

(v) I accept the evidence of Mr Worrell that there will be minimal or no views from inside of Bryntirion to the proposed development (due to the solid awnings which span two thirds the length of the western façade of the building) and there will be minimal views from the gardens of Bryntirion (due to the presence of large established trees to the western street edge of Bryntirion);49

44 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 pp 2 and 5. The relationship with Athol Place will be discussed in further detail later. 45 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 p 2. 46 Joint Report on Town Planning - Exhibit 5 p 21. 47 Joint Report on Town Planning - Exhibit 5 p 21. 48 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 p 2. 49 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 pp 8 - 9. 22

(vi) there is a 15 metre separation between the proposed development and the western wall of Mayfair Residences along Birley Street;50

(e) Penton Lane has a service nature in that it is primarily used for loading and vehicular access to the rear of the majority of buildings on the lane, most of which face away from the lane;51

(f) with respect to the dwelling on the northern side of Penton Lane, the significance of the impact is reduced given:

(i) the house is oriented towards Birley Street, with the view from the front of the house being to the tower of Mayfair Residences and the view from the rear of the house being the multi-level carpark and tower of Hotel Urban. None of the submissions made about the development application opposed the development on the basis of potential impact on this dwelling52;

(ii) the design of the façade fronting Penton Lane is one that involves greater setback for the first two levels, particularly proximate to the intersection with Birley Street,53 with the tower cantilevered above. At street level, the proposed development incorporates landscaping for about one-quarter of the frontage with deep planting on the corner and shrubs on the other side of the driveway and garage door;54

(iii) there is approximately 12 metres physical separation, which provides adequate natural ventilation and light penetration;55

(g) with respect to the adjoining site to the west:

(i) the residential building contains four dwellings per level that are oriented with primary outlooks to Wickham Terrace and Penton Lane;56

50 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 p 2. 51 See photos at Book of Documents Volume 1 - Exhibit 1A pp 60, 61 and 62 and Joint Report on Town Planning - Exhibit 5 p 78. 52 Book of Documents Volume 2 - Exhibit 1B pp 487 – 503. 53 See Worroll T2-54/L35-38. 54 Book of Documents Volume 2 - Exhibit 1B p 626. 55 Joint Report on Town Planning - Exhibit 5 p 135. 56 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 p 3. 23

(ii) the existing residential building at 309 Wickham Terrace is positioned towards Wickham Terrace, whereas the proposed commercial building is positioned towards Penton Lane, which helps offset any potential adverse amenity impacts;57

(iii) visual relief is provided in the central part of the proposed development by a two storey terrace that allows light penetration and ventilation from the east to the neighbouring property and a green wall that provides an attractive visual screen. The location of the terrace is proximate to a considerable length of the adjoining apartment block to the west: Mr Peabody’s diagram in Exhibit 21 does not take account of this;58

(iv) the plan of the proposed building incorporates the building lift core and the amenities on the western side, thereby addressing any potential overlooking or privacy issues;59

(h) Mr Peabody’s calculations of site cover, in Exhibit 21, do not assist in understanding the likely visual presentation of the proposed development. The calculations do not convey the sense of openness and space at the lower levels that will be provided by design elements such as the two storey terrace and the cantilevering of the upper levels of the building. These design elements, particularly the terrace, contribute positively to the amenity and character of the local area and ameliorate potential impacts that might otherwise be present with a building that has extensive site cover and small setbacks. In any event, the site cover of the proposed development is not dissimilar to, and is compatible with, the site cover of other nearby developments such as Hotel Urban and Brisbane Private Hospital60;

(i) although the subject site is smaller than other lots in the locality, its three street frontages afford an opportunity to achieve a building form of a size and bulk

57 Joint Report on Town Planning - Exhibit 5 p 25. 58 See Book of Documents Volume 2 - Exhibit 1B pp 623 and 627. A comparison of the plans, particularly the location of the 11 600 mm length of wall that forms the western wall of the lift core and amenities, allows one to appreciate the location of the terrace proximate to the adjoining apartment block. See also the survey plan at Book of Documents Volume 1 - Exhibit 1A p 174. 59 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 p 3. 60 Exhibit 31. 24

consistent with others in the locality.61 The three street frontages provide sufficient extra space around the site for the circulation of air and light and to ensure an absence of unacceptable impact in terms of overshadowing, overlooking and privacy; and

(j) the proposed development is consistent with the existing modulated skyline in the locality and its bulk, form and scale is in keeping with the locality.

[70] I consider that there is, however, a level of conflict with performance outcome PO10 of the Petrie Terrace and Spring Hill Local Plan Code. The conflict is occasioned by the minimal setback of the tower element to Penton Lane.

[71] While the conflict could not be described as trivial or technical in nature, I consider it to be towards the lower end of the scale for the reasons already identified in paragraphs [69](e) and [69](f) above.

[72] Compliance with overall outcomes 10(a) and 10(c) of the Petrie Terrace and Spring Hill Local Plan Code are considered as part of “Planning intent” below.

Planning intent

[73] The appellant submits that the proposed development is in conflict with the planning strategy for the land. The submission is premised on an interpretation of the Petrie Terrace and Spring Hill Neighbourhood Plan Code summarised by the appellant in written submissions as follows:62 “(a) at a threshold level, the high-rise residential precinct of the Neighbourhood Plan seeks for residential uses to be located within that precinct pursuant to Overall Outcomes 3(e), 3(f) and 6(b); (b) further, due to the size of the land in this instance, the residential use sought by the Neighbourhood Plan is a low intensity residential use, pursuant to Overall Outcome 6(c), PO/AO 16 and (as a result of those provisions) Overall Outcome 5(a), (e) and (f); (collectively, (a) and (b) are the “general rule”) However: (c) due to the historical use of the land, pursuant to Overall Outcomes 6(d) and 10, a possible exception to the general rule is provided for the land to be used for centre activities,

61 In K Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPELR 406; [2011] QPEC 1 Rackemann DCJ, at 422 [118], took account of the additional space that comes with having three street frontages in assessing the acceptability of a proposed development. 62 Written Submissions on behalf of the Appellant p 12 [60]. 25

provided the requirements of Overall Outcome 10 are met (“the exception”); (d) pursuant to the terms of Overall Outcome 10, it is submitted that to qualify for “the exception” a proposed development must be: (i) limited to a “reasonable intensification and expansion of the use”; and (ii) exhibit a “built form character intended for the Precinct”.”

[74] It was pointed out, on behalf of the appellant, that the proposed development does not comply with AO16.2 given that the area of land is only 840 square metres. That is so. It was submitted, however, that having departed from AO16.2, the combined effect of overall outcome (6)(c) and the note accompanying AO16.2 is to limit development on the subject site to a low intensity residential use consistent with overall outcomes (5)(a), (5)(e) and (5)(f).

[75] Although a note is part of the planning scheme,63 there are a number of reasons why the interpretation contended for by the appellant is not accepted.

[76] First, the note is contained within an acceptable outcome in circumstances where compliance with an acceptable outcome is not mandatory.

[77] Second, where the drafter of the planning scheme has intended for a note to have broader application, the drafter has included the note in:

(a) the performance outcome, such as in PO1 of the Petrie Terrace and Spring Hill Neighbourhood Plan Code where there are separate and distinct notes for PO1 and for AO1;64 or

(b) in the part of the code that deals with application, such as in s 7.2.16.1.1 of the Petrie Terrace and Spring Hill Neighbourhood Plan Code65 and 9.3.3.1 of the Centre or Mixed Use Code66; or

(c) in the part of the code that deals with the purpose of the code, such as in s 6.2.1.4 of the High Density Residential Zone Code.67

63 See s 1.3.2(3) of City Plan - Planning Scheme Extracts – Exhibit 2A p 14. 64 Planning Scheme Extracts – Exhibit 2A p 98. 65 Planning Scheme Extracts – Exhibit 2A p 94. 66 Planning Scheme Extracts – Exhibit 2A p 132. 67 Planning Scheme Extracts – Exhibit 2A p 89. 26

[78] Third, the words within the note are directly referrable to AO16.2: the note refers to development “on sites having a lesser area and frontage” and the acceptable outcome sets a minimum site area and a minimum frontage length. By way of contrast, neither performance outcome PO16 nor overall outcome (6)(c) contains a measurable standard that would permit the word “lesser” to be ascribed relevant meaning.

[79] Fourth, the second sentence of overall outcome (6)(c) does not adopt prescriptive language that is apt to give rise to a clearly identifiable conflict, such as that contained in the note to AO16.2.68 Instead, it refers to the desirability of allowing the opportunity to develop small sites and, in that context, presents an option, being the possibility of erection of low-rise apartments, attached houses or detached houses in accordance with the provisions applicable in the low-rise residential precinct. The language connotes a possible, but not mandatory, outcome.

[80] Further, and in any event, overall outcome 6(c) must be read together with overall outcome (6)(d), which nominates particular non-residential uses that are considered consistent with the outcomes sought for the High-rise Residential Precinct.

[81] With respect to the “general rule”, the appellant submits that, when overall outcomes (3)(e), (3)(f), (6)(b) and (6)(c) are read together, there is a clear planning strategy for land in the High-rise Residential Precinct to be used for residential purposes. It is alleged that the proposed development conflicts with that strategy.

[82] When the provisions relied on by the appellant are read in the context of overall outcomes (3)(a) to (f) and (6)(a) to (d), a fuller picture of the intended character of the locality emerges. These overall outcomes:

(a) place importance on protection of the character of the built environment in terms of buildings of traditional building character or heritage significance, with any new development to be sympathetic to the scale and character of the original development pattern and siting of existing buildings; and

68 If it was the intention of the drafter to limit development on small sites to a low intensity residential use, it would have been necessary to use clearer language than that of desirability and possibilities. One example of where the overall outcomes contain such clear language is overall outcome (4)(d)(ii) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code - Planning Scheme Extracts – Exhibit 2A p 95. 27

(b) seek to ensure residential amenity is not reduced and that the amenity and attractiveness of the neighbourhood plan area is improved; and

(c) encourage a choice of dwelling types, as well as commercial development, provided higher density residential and commercial development is contained to those areas identified as suitable for such uses.

[83] There are a number of areas identified in the Petrie Terrace and Spring Hill Neighbourhood Plan Code as suitable for commercial development. They include the commercial precincts and sub-precincts, as well as a number of special areas identified in Figure a and Figure b.

[84] The subject site is identified as special area 22 on Figure a within the Petrie Terrace and Spring Hill Neighbourhood Plan Code. As such, pursuant to overall outcome (6)(d), development of the subject site for uses within the centre activities activity group is considered consistent with the outcomes sought for the High-rise Residential Precinct. Centre activities uses include, but are not limited to, those uses proposed for the subject site, namely food and drink outlet, health care services, office and shop.

[85] Overall outcome (10) provides further guidance with respect to the intensity of development in a special area.

[86] The appellant submits that the effect of overall outcome (10) is to only permit a reasonable intensification and expansion of historical uses of the land. It is submitted by the appellant that overall outcome (10)(b) is of no moment as no party to the appeal conducted their case on the basis that overall outcome (10)(b) applied and there is no evidence of a “particular planning problem” that would enliven its operation.69

[87] In Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, Morrison JA observed at 94 [52] that “[t]he same principles which apply to statutory construction apply to the construction of planning documents.” As such, it is necessary to consider the context of the provisions that are being construed.70

69 These submissions were provided on 10 April 2017 in response to a request by me, o n5 April 2016, for submissions on this issue. 70 Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82 at 95 [55]; [2014] QPELR 686; [2014] QCA 147. 28

[88] At 95 [56] of that judgment, Morrison JA also observed that: “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 whole and as intending to achieve balance between outcomes.”71

[89] Relevant to the context in which the text of overall outcome (10) should be considered are the other provisions in the Petrie Terrace and Spring Hill Neighbourhood Plan Code that deal with special areas. Those provisions include:

(a) Figure a of the Petrie Terrace and Spring Hill Neighbourhood Plan Code, which is titled “Spring Hill special areas” and includes special areas identified as SA 1 to SA 13, SA 15 to SA 17, SA 19, SA 20 and SA 22;

(b) Figure b of the Petrie Terrace and Spring Hill Neighbourhood Plan Code, which is titled “Petrie Terrace sub-precincts and special areas” and includes special areas identified as SA 4, SA 14, SA 18 and SA 21;

(c) overall outcome (4)(d), which nominates uses considered consistent with the outcomes sought for the Detached House Precinct if the uses are located in special area 21 or special area 14. Overall outcome (4)(d)(ii) only nominates a parking station use as consistent where “the car parking structure is no greater than 6.2m in overall height and the upper deck is no greater than 5.2m in height, with a side boundary clearance of 1.5m and perimeter screening of 1m height”;

(d) overall outcome (5)(f), which nominates uses considered consistent with the outcomes sought for the Low-rise Residential Precinct if the uses are located in special areas 3, 5 to 7, 10, 13 and 20; and

(e) overall outcome (6)(d), which nominates uses considered consistent with the outcomes sought for the High-rise Residential Precinct if the uses are located in special areas 2, 6, 8, 9, or 20 to 22.

71 Footnotes omitted. 29

[90] Consideration of those provisions reveals that:

(a) while Figure a and Figure b identify special areas 1 to 22, the text of the Petrie Terrace and Spring Hill Neighbourhood Plan Code contains no specific reference to special areas 11, 12 and 15 to 19;

(b) in some instances, uses nominated as consistent uses are narrow in compass. One such example is the land identified as special area 8 on Wickham Terrace, which contains the Brisbane Private Hospital and is nominated for use for “hospital, office and health care services”; and

(c) in other instances, uses nominated as consistent uses are broad in compass. Examples include the land identified as special area 2 and special area 22. Special area 2 is 281-287 Wickham Terrace, which contains a residential use in the 13 storey residential building known as Mayfair Residences and health care services in the heritage place known as Bryntirion. Special area 22 is the subject land, which has historically been used for residential and health care services uses. Overall outcome (6)(d)(iii) identifies “centre activities” as a consistent use for both sites.

[91] Further, with respect to overall outcome (10)(b), it seems arguable that the subordinate clause “where a particular planning problem has been identified and the potential exists to rectify it by applying more flexible planning provisions” is relevant only to areas identified for “consideration of slightly higher residential intensities” and not also to those identified to provide for “alternative purposes”. “Flexible” means “susceptible of modification or adaption”. That is a concept that sits comfortably with the concept of “intensities”, which can be delivered at various gradations along a spectrum. By way of contrast, a “purpose” or “use”, as opposed to its intensity, is a fixed concept: a development will either be for a particular permitted “purpose” or “use” or it will not. Further, an interpretation that does not qualify the identification of special areas for “alternative purposes” allows balance to be achieved between outcomes that, in some instances, provide for uses that are narrow in compass, even though the use would fall within a broader definition such as “centre activities”, but in other instances permit uses that are broad in compass and, in fact, much broader than the existing well established use of the site. 30

[92] The text of overall outcome (10), considered in that context, would indicate that special areas identified in Figure a and Figure b in the Petrie Terrace and Spring Hill Neighbourhood Plan Code comprise:

(a) existing sites that do not comply with the outcomes sought for the precinct in which the sites are located but which are identified as special areas because they contain a use that is “generally well established and accepted by the community”, as referenced in overall outcome (10)(a);

(b) areas identified to provide for alternative purposes to those which are generally encouraged in a precinct, as referenced in overall outcome (10)(b); and

(c) areas identified to provide for consideration of slightly higher residential intensities where a particular planning problem has been identified and the potential exists to rectify it by applying more flexible planning provisions, as referenced in overall outcome (10)(b).

[93] Overall outcome (10)(a) relates to those special areas identified because they are existing sites containing well established uses. The provision permits a reasonable intensification and expansion of the established use “provided it is located within the defined boundaries of the special area”. There is no such limitation on the use of sites that are identified to provide for alternative purposes.

[94] The special area designation for the subject site areas is one that identifies the land and provides for its use for centre activities. Although the definition of “centre activities” includes uses that reflect the existing uses on the subject site, it also encapsulates a much broader range of uses.

[95] Uses permitted as part of “centre activities” are caretakers accommodation, child care centre, club, community care centre, dwelling unit, educational establishment, emergency services, food and drink outlet, function facility, health care services, indoor sport and recreation, office, parking station (if bicycle parking), place of worship, sales office, service industry (if less than a gross floor area of 100m2), shop, shopping centre, short-term accommodation, substation, telecommunications facility (if a broadcasting station or television station), theatre and veterinary services.

[96] For the reasons set out in paragraphs [87] to [95] above, it seems arguable that the subject site is one that has been identified as a special area to “provide for the 31

inclusion of alternative purposes” pursuant to overall outcome (10)(b). If that is correct, redevelopment of the subject site would not be limited to a “reasonable intensification and expansion” of existing uses.

[97] However, none of the parties preferred this interpretation of overall outcome (10)(b). The parties all conducted the case on the basis that the subject site was not identified for use for alternative purposes, rather it was identified to provide for reasonable intensification and expansion of existing well established uses.72

[98] Assuming then that the subject site is identified as a special area because it is an existing site containing well established uses, overall outcome (10)(a) of the Petrie Terrace and Spring Hill Neighbourhood Plan permits a “[r]easonable intensification and expansion of the use is possible provided it is located within the defined boundaries of the special area”.

[99] The appellant submits that the proposed development would not be a reasonable intensification and expansion of the use because it would result in the number of doctors practicing at the land increasing from a maximum of two to three doctors to 20 to 30 doctors and possibly even more.

[100] In Newman & Ors v Brisbane City Council & Ors [2011] QPEC 87; [2011] QPELR 786, Robin QC DCJ considered the identical phrase as it appeared in the Petrie Terrace and Spring Hill Local Plan in Brisbane City Plan 2000. The provisions dealing with special areas in that local plan are otherwise in remarkably similar terms.

[101] Robin QC DCJ took a broad approach to the test of what is “reasonable” with respect to expansion and intensification. He considered that:

(a) “one should expect that reasonable expansions of any business should be permitted to meet a changing economic climate as long as they do not unduly interfere with the rights and amenities of neighbouring land owners”, but this does not mean that no impacts are to be suffered, or that the only impacts to be considered are impacts outside the site: at 800 [21] – [22];

(b) “it is a reasonable approach to provide for more than immediate needs only”: at 800 [23];

72 Further submissions were invited on this issue on 5 April 2017 and received on 10 April 2017. 32

(c) the intensification and expansion is not limited to intensification of use within an existing building where the provision chooses to draw no such distinction: at 801 [26] and [28]; and

(d) “reasonableness is not judged by consideration of effects on neighbours alone; the impact on the character and amenity of the Spring Hill locality in general must be considered, given that the essential raison d’etre of the Local Plan is to protect and enhance them”: at 801 [29].

[102] The considerations referred to by Robin QC DCJ involve qualitative considerations of town planning impacts, rather than a quantitative analysis of the extent of increase in GFA or employee numbers or other such metrics. Although Robin QC DCJ was considering City Plan 2000 and land in a different precinct, the considerations referred to are relevant here. Ultimately, compliance with the Petrie Terrace and Spring Hill Neighbourhood Plan Code can be demonstrated by compliance with the overall outcomes and purpose of the code. Those provisions do not contain standards set by reference to metrics, rather the essential raison d’etre of the code is the protection and enhancement of the character and amenity of the Spring Hill locality.73

[103] The proposed development is located within the defined boundaries of the special area. It represents a “reasonable intensification and expansion” given:

(a) the designation covers the whole of the subject site, not just that small part (approximately one third) that is currently improved by Athol Place: it includes the under-developed and under-utilised at-grade car park that covers most of the subject site;

(b) the uses that comprise the proposed development are specifically contemplated and acknowledged to be consistent uses by virtue of the designation of the subject land as special area 22;

(c) the “centre activities” uses that are acknowledged to be consistent uses in special area 22 are far broader in compass than the existing uses (being “health care services” and “offices”);

73 See my earlier observations at paragraph [82]. 33

(d) the land is included in the High Density Residential Zone and the High-rise Residential Precinct in the Petrie Terrace and Spring Hill Neighbourhood Plan Code, in which a ten storey building is within contemplation;

(e) for the reasons outlined in paragraphs [64] and [69] above, the effects on the neighbours are not unacceptable and the character and amenity of the Spring Hill locality in general is protected and enhanced, particularly by the proposed refurbishment and revitalisation of Athol Place and the incorporation of a two storey terrace; and

(f) the proposed development does not bring with it the planning negatives typically associated with non-residential uses that the code (particularly overall outcomes (3)(d) and 3(e)) seeks to guard against, namely unacceptable impacts on the traffic network, unacceptable increase in non-local traffic movements, city centre commuter parking overspill and general deterioration of housing stock.

[104] For those reasons, I do not consider there is conflict with overall outcome (10)(a) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code.

[105] Overall outcome (10)(c) notes that it is intended that all development in special areas complies with the provisions of the code relating to the precinct and, if applicable, the sub-precinct in which the site is located unless “the functions and other intrinsic characteristics of the particular purpose or any special circumstances of the special area make such compliance unreasonable”, in which case variation is possible “provided the development exhibits the built form character intended for the precinct”.

[106] As is noted in paragraph [70] above, I consider that the proposed development does not comply with performance outcome PO10 of the Petrie Terrace and Spring Hill Local Plan Code because of the minimal setback of the tower element of the proposed development to Penton Lane.

[107] However, I consider that compliance with performance outcome PO10 would be unreasonable, insofar as it requires the building setback to Penton Lane to complement those prevailing in the street given:

(a) the subject site has three street frontages; 34

(b) the primary frontage from which the development will be viewed is Wickham Terrace;74

(c) Penton Lane has a service nature;75 and

(d) there are no unacceptable adverse impacts occasioned by the conflict.

[108] The appellant submits that, on the basis of its contentions with respect to built form and conflict with performance outcomes PO8, PO9 and PO16 of the Petrie Terrace and Spring Hill Neighbourhood Plan Code and PO19 of the Centre or Mixed Use Code, the proposed development does not exhibit “the built form character intended for the precinct”. For the reasons explained in paragraph [69] above, I disagree.

[109] I do not consider there is conflict with overall outcome (10)(c) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code.

Architectural, character and heritage impacts

[110] The appellant alleges that the proposed development will have unacceptable architectural, character and heritage impacts and therefore be in serious conflict with the following provisions of City Plan 2014:

(a) overall outcomes (2)(a) and (2)(b) and performance outcomes PO1, PO2, PO3 and PO4 of the Heritage Overlay Code;

(b) overall outcomes (3)(a), (3)(b) and (10)(c) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code; and

(c) overall outcomes (2)(i) and (2)(r) and performance outcomes PO13, PO19, PO25 and PO32 of the Centre and Mixed Use Zone Code.

[111] The relevant provisions of the Petrie Terrace and Spring Hill Local Plan Code are set out in paragraphs [38] and [40] above.

74 Report on Architecture and Visual Amenity by Mr Worroll - Exhibit 6 p 7. 75 See photos at Book of Documents Volume 1 - Exhibit 1A pp 60, 61 and 62 and Joint Report on Town Planning - Exhibit 5 p 78. 35

[112] Overall outcomes (2)(a) and (2)(b) of the Heritage Overlay Code provide:76 “(a) Development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values. (b) Re-use of a heritage place is compatible with its cultural heritage significance, including any Aboriginal cultural values and retains its heritage significance.”

[113] Performance outcomes PO1, PO2, PO3 and PO4 of the Heritage Overlay Code provide:77 “PO1 Development provides for the future protection of the heritage place and does not damage or diminish its cultural heritage significance. PO2 Development is based on and takes account of all aspects of the cultural significance of the heritage place. PO3 Development protects the fabric and setting of the heritage place while providing for its use, interpretation and management. PO4 Development is based on the issues relevant to the conservation of the heritage place.”

[114] Overall outcomes (2)(i) and (2)(r) of the Centre or Mixed Use Code provide:78 “(i) Development for a building exhibits subtropical design elements and a visually appealing street edge that continues local character form such as traditional strip shopfronts, where appropriate, to contribute to Brisbane’s character and identity. (r) Development, particularly on landmark sites, retains and supports site features, such as views, heritage, significant vegetation and significant corner sites, and provides character and design elements to strengthen local identity and city distinctiveness.”

[115] Performance outcome PO19 of the Centre and Mixed Use Zone Code is set out in paragraph [49] above. Performance outcomes PO13, PO25 and PO32 provide:79 “PO13 Development enhances the role and function of the centre or mixed use area as a place of economic and community activity considering its strategic location, form and character intent and the catchment which it services, through its overall structure and integration in its location with use and site planning including building, open space, landscape and parking which: (a) retain or respect valued site features;

76 Planning Scheme Extracts - Exhibit 2A p 126. 77 Planning Scheme Extracts - Exhibit 2A pp 126 – 127. 78 Planning Scheme Extracts - Exhibit 2A p 133. 79 Planning Scheme Extracts - Exhibit 2A pp 136 – 137 and 140 – 143. 36

(b) reflect local valued streetscape forms, features and character; (c) contribute to the desired character and form of the local area; (d) align buildings and towers to the street pattern and respects the community of street facades; (e) are transit supportive; (f) connect with the neighbourhood or local structure; (g) provide direct and convenient site access for pedestrians and cyclists to local transport networks, key destinations and public transport facilities; (h) provides for safe vehicle access; (i) provides opportunities for integrated access and parking with adjoining developments; (j) locates uses to minimise impacts on adjoining residents; (k) assists with mitigation of air and noise quality impacts on the health and amenity of building occupants and residents. PO25 Development ensures that the separation of buildings within a site and to an adjoining existing or future building which includes a residential dwelling: (a) is consistent with the form and character intent for the local area; (b) is located to provide residential amenity including access to natural light, sunlight and breeze; (c) provides a degree of visual privacy via site planning and design without a reliance on fixed screening; (d) reasonably addresses and considers the amenity of adjoining residents and future development potential. PO32 Development of buildings is finished with high-quality materials, selected for their durability and the contribution they make to the character of the centre or mixed use area.”

[116] Some of the architectural and character issues raised by these provisions have already been addressed, such as the issue of separation of buildings. The appellant’s submissions focused on the heritage issues and stated that the court is called to consider:

(a) whether extinguishing the residential use of Athol Place would cause an unacceptable heritage and character impact; and

(b) whether the built form of the proposed development, particularly the commercial tower, would cause an unacceptable impact on the heritage and character significance of Athol Place.

[117] Athol Place is identified as both a State and local heritage place. The Queensland Heritage Register contains a citation for Athol Place. Council has not produced a separate heritage citation for Athol Place and all of the heritage experts agreed that, 37

for the purposes of an assessment against the planning scheme, it is appropriate that reference be had to the Queensland Heritage Register entry for the heritage place.80

Impact of the extinguishment of the residential land use on the heritage values

[118] Mr Elliott, the heritage expert called by the appellant, considered that the extinguishment of the original residential land use of Athol Place, which has continued on the subject site for more than 150 years, represents an unacceptable impact on the cultural heritage significance of the place.81

[119] On this issue, Mr Elliott placed considerable reliance on the proposed removal of the circa 1929 alterations and additions, which he said would “generate a discontinuity in the historical narrative aligned to the subject site while also effectively erasing any trace of a significant period of prior ownership by the Ryan family between the 1920s and the 1970s”.82 He considered the additions to be of cultural significance and worthy of retention.83 Mr Elliott was also of the view that, in evaluating the heritage significance of Athol Place, the period of occupation by the Ryan family was significant84 and that the occupation by Dr Bancroft was not.85

[120] The period of occupation by the Ryan family, and their conversion of the property into six flats, is part of the history of Athol Place recorded in the Queensland Heritage Register. However, as was acknowledged by Mr Elliott during his oral testimony, the 1929 extensions were not given any prominence in the statement of heritage significance.86

[121] Athol Place was entered in the Queensland Heritage Register on 21 October 1992.87 Section 20(4) of the Queensland Heritage Act 1992 (Qld), as it applied at the time, provided: “An entry in the Heritage Register in relation to a registered place must- (a) adequately identify the place-

80 Joint Report of Heritage Experts - Exhibit 4 p 2. 81 This opinion was expressed numerous times in the joint report. See, for example, Joint Report of Heritage Experts - Exhibit 4 pp 14 and 18. See also Elliott T3-51/L33-47. 82 Joint Report of Heritage Experts -Exhibit 4 p 19. 83 See Joint Report of Heritage Experts - Exhibit 4 pp 21 and 37. 84 Elliott T3-52/L38 – T3-53/L10 and Joint Report of Heritage Experts - Exhibit 4 p 13 and Elliott T3- 62/L5-12. See also Elliott T3-58/L30 – T3-60/L8. 85 Elliott T3-53/L12 – T3-54/L12 and Exhibit 27. See also Elliott T3-58/L30 – T3-60/L8. 86 Elliott T3-58/L41-45. 87 Joint Report of Heritage Experts - Exhibit 4 p 41. 38

(i) by reference to a certificate of title or an official plan of survey; or (ii) by survey information that enables its boundaries to be clearly and accurately ascertained; and (b) contain a description of the place; and (c) contain a statement of the history of the place; and (d) contain a statement of the heritage significance of the place related to the criteria in this Act by which its heritage significance is determined.”

[122] It is clear from s 20 that the matters by which the heritage significance of a place are to be determined is limited to the statement of the heritage significance. This is not the approach adopted by Mr Elliott.

[123] The statement of heritage significance in the Queensland Heritage Register provides:88 “Criterion A The place is important in demonstrating the evolution or pattern of Queensland’s history. Built soon after the opening up of Wickham Terrace, Athol Place is significant as one of the earliest stone terrace houses with Georgian elements built in Brisbane. Criterion B The place demonstrates rare, uncommon or endangered aspects of Queensland’s cultural heritage. It is one of the few surviving original residential buildings left along this street, and is indicative of the type of house once common when this was a residential area. Terrace houses, though numerous, were not as common in Brisbane as they were in southern capitals. The demolition of many of their number has increased the rarity of early examples still extant. As most two storey terrace houses in Brisbane were built in brick or timber, the stone construction of Athol Place increases its significance. Criterion D The place is important in demonstrating the principal characteristics of a particular class of cultural places. The building is a fine example of its type and contributes to the streetscape of Wickham Terrace including Bryntirion on the adjacent corner of Birley Street. Criterion E The place is important because of its aesthetic significance. The building is a fine example of its type and contributes to the streetscape of Wickham Terrace including Bryntirion on the adjacent corner of Birley Street.

88 Joint Report of Heritage Experts - Exhibit 4 pp 43 – 44. 39

Criterion H The place has a special association with the life or work of a particular person, group or organisation of importance in Queensland’s history. Athol Place’s significance is enhanced by its association with Alexander McNab, the successful early Brisbane developer who built and owned it for many years. This was the residence of his son Alexander, the prominent solicitor, and was at one time the surgery of Dr Joseph Bancroft, the pioneer physician.”

[124] The appellant submits that the use of Athol Place for residential purposes forms an important part of its cultural heritage significance. In this respect, the appellant highlighted each reference to “house”, “dwellings”, “residential” and “residence” in the citation and referred to the definition of house in the Macquarie Dictionary as “a building for people to live in, usually one which is self-contained and designed for a single family”. The appellant submits that there will be an unacceptable impact on the cultural heritage significance of the place as the approval of the proposed development would result in, for the first time since its construction, Athol Place not being used at all for residential purposes.

[125] The references to “house” “dwellings”, “residential” and “residence” must be read in context. It is apparent from their context that the cultural heritage significance of Athol Place is not tied to its use as a residence, rather it relates to its appearance as a residence. On this issue, I accept the evidence of Ms Woods. She observed:89 “Ms Woods is of the opinion that the discontinuation of residential land use of the subject site will not have an adverse impact on the identified basis of cultural heritage significance for Athol Place. • The ‘use’ of Athol Place as two storey terrace houses is not included as being of cultural heritage significance. It is its form as a row of early and original two storey terrace houses that is significant because the form is rare (particularly being of stone), it demonstrates the principal characteristics of a particular class of cultural places (even though the original rear out buildings have been demolished in 1929) and it has aesthetic significance being a fine example of its type which contributes to the streetscape of Wickham Terrace. • The original use of the building as two storey terrace houses was short lived. By 1866 one terrace was known to have been used as consulting rooms by Dr. Joseph Bankcroft. The building was also used by the Brisbane Girls High School as a boarding house prior to their move to Cumbooquepa at South Brisbane in 1919. By 1929 the property was converted to six flats. By 1972 it was owned by engineers and then used for Doctors’ rooms from 1979. It is not so much the change of uses to date, or the future changes of use that

89 Joint Report of Heritage Experts - Exhibit 4 pp 13 – 14. 40

will have an impact on the building, but the alterations to the building fabric of the place that has had an adverse impact on the place. The 1929 changes, which included the removal of the rear out buildings and the construction of the timber extension which is present today, and the 1980 alterations have had a significant adverse impact on the cultural heritage significance of the place. The new use for commercial offices will allow many of the previous intrusive alterations to be reversed and it will allow maintenance and conservation of the original building fabric which will preserve the building for future generations. • Under the Burra Charter, Article 7 notes that where the “use” of a place is of cultural heritage significance it should be retained. Athol Place has not been used as two storey terrace houses since before 1929, and in part from 1866 when a commercial tenancy for Dr Joseph Bankcroft was first implemented. • Under the Burra Charter Article21 (sic) Adaptation, Adaptation is acceptable where the adaptation has minimal impact on the cultural heritage significance of the place. • The adaptation of Athol Place from Doctors’ consulting rooms and residential flats above, to commercial offices has minimal impact on the cultural heritage significance of the place.”

[126] During cross-examination Mr Elliott accepted that:

(a) while the retention of residential use of the building would be optimal,90 the proposal was a compatible adaptive re-use;91

(b) if the proposed development is approved, the building will still have the appearance from Wickham Terrace - the important streetscape - of three terrace houses;92

(c) the 1929 extensions destroy the opportunity for a proper examination of the original rear (or northern external) walls of the building, that is the Brisbane Tuff walls with casement windows. They turn the original rear external walls of the building into internal walls;93

(d) the removal of the 1929 extensions will:

90 The test for the court is not whether the development is “optimal”, but whether the proposal conflicts with the planning scheme. 91 Elliott T3-61/L24-34 and Elliott T3-77/L23-25. 92 T3-61/L20-23. See also Joint Report of Heritage Experts - Exhibit 4 p 13 where Mr Elliott accepts that “Athol Place was originally constructed as a series of connected residential dwellings and retains the external appearance of this type of development irrespective of the actual land uses presently operating within the heritage place.” 93 Elliott T3-62/L39-45. 41

(i) improve the aesthetic appeal of Athol Place by giving some views of the northern original wall;94 and

(ii) allow the removal of visually intrusive elements from the periphery of Athol Place, which will enable the reinstatement of its original built form as a prestige series of terrace houses.95

[127] For those reasons, I do not consider that the cessation of residential use of Athol Place, or the removal of the circa 1929 alterations and additions, will result in conflict with the Heritage Overlay Code.

Impact of the built form on the heritage and character significance of Athol Place

[128] The appellant submits that the size and scale of the proposed commercial tower with its curtain glass façade, as against Athol Place, will conflict with City Plan 2014. In particular, the appellant refers to the requirements in overall outcome (3)(b) and (3)(d) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code, which require development to be sympathetic to traditional character. Similar character considerations arise with respect to the alleged conflicts with the Centre and Mixed Use Zone Code.

[129] In support of its submission, the appellant again refers to the metrics of the proposed development that, it says, demonstrate that the proposed commercial tower would overbear and unacceptably impact on the cultural heritage significance of Athol Place.

[130] The metrics reveal that:

(a) the proposed development would have a gross floor area of 2,804 square metres, compared to the existing 423 square metre gross floor area of Athol Place;

(b) the plot ratio would increase from approximately 0.50 to approximately 3.34;

(c) the proposed development will rise above the ridgeline of the existing Athol Place by more than 16 metres; and

94 Elliott T3-64/L27-30. 95 Elliott T3-71/L21-25; Elliott T3-65/L29-31; Elliott T3-72/L39-42; Elliott T3-71/L39-40. 42

(d) in terms of the proposed commercial tower, the proposed development would be eight storeys in height compared to the current two storeys of Athol Place.

[131] These metrics are not, however, conclusive. It is necessary to consider the effect of the proposed commercial tower on Athol Place when viewed in context to determine whether the proposed development is sympathetic.96

[132] Mr Elliott considered that the commercial tower would serve as a visually imposing, contemporary backdrop immediately behind the heritage place when it is being viewed from its primary Wickham Terrace street frontage.97 As such, he believed the commercial tower would have an unacceptable impact on the setting of Athol Place.98

[133] However, as Mr Elliott acknowledged, constructing the proposed building behind Athol Place will not result in Athol Place no longer being read as colonial terrace houses.99 This appearance is an important aspect of the cultural heritage significance of Athol Place.100

[134] The significant corner positions of both Athol Pace and Bryntirion on Wickham Terrace, separated by Birley Street, are also maintained and their relationship unaltered.101

[135] When viewed in context, the setting of Athol Place in Wickham Terrace is not unacceptably altered. Athol Place is built boundary to boundary. As was observed by Ms Woods, Athol Place does not have the luxury of open space to either of its sides and, looking at it from Wickham Terrace, you are not aware of the open space to the rear.102

[136] Further, Spring Hill contains an eclectic mix of buildings, including many tall buildings. The backdrop of the proposed building is not dissimilar to the surrounding

96 Article 22.1 of the Burra Charter provides that “new work such as additions or other changes to the place may be acceptable where it respects and does not distort or obscure the cultural heritage significance of the place, or detract from its interpretation and appreciation.”: Exhibit 23, p 7 Article 22.1. The heritage experts agreed that the Burra Charter provides relevant assistance: Joint Report of Heritage Experts - Exhibit 4 p 4 [17]. It is reference in notes to PO1, PO2, PO3 and PO4 of the Heritage Overlay Code: Planning Scheme Extracts – Exhibit 2A pp 126 - 127. 97 Joint Report of Heritage Experts - Exhibit 4 p 21. 98 Joint Report of Heritage Experts - Exhibit 4 p 21. 99 Elliott T3-76/L36-38. 100 See Criterion A, B, D and E – Joint Report of Heritage Experts - Exhibit 4 p 43. 101 See Criterion D and E – Joint Report of Heritage Experts - Exhibit 4 p 44. 102 Woods T3-43/L1-7. 43

mid-rise buildings, others of which can be seen as part of the backdrop to Athol Place (depending on the position along Wickham Terrace from which Athol Place is viewed).103

[137] The proposed development will also improve the interpretation and appreciation of the heritage significance of Athol Place. In particular:

(a) as is noted in paragraph [126] above, the proposal will enhance the cultural heritage significance of the place by removing the 1929 rear additions;

(b) the retention and conservation of the stone core and the proposed maintenance of the roof, timber joinery, chimney and significant walls will protect the place for future generations;104

(c) the connection to the commercial building proposed at the rear will assure the long term maintenance of Athol Place;105

(d) the proposed development includes a publicly accessible interpretation centre in the original building that will include material about the association with Mr McNab and Dr Bancroft, who are referenced in the statement of heritage significance, as well as information that will assist in the demonstration of the evolution and pattern of Queensland’s history. It will also include all of the history of Athol Place, including the occupation and alterations by the Ryan family;106 and

(e) the landscape proposal for the Wickham Terrace frontage will be improved by installation of a new garden that has been carefully designed to be sympathetic to the cultural heritage significance of Athol Place.107

103 See, for example, Photomontage Methodology Report - Exhibit 9 pp 15 and 16. See also the photographs at Statement of Evidence of Mr Lynch - Exhibit 7 p 2 and Photomontage Methodology Report - Exhibit 9 p 11. 104 Joint Report of Heritage Experts - Exhibit 4 p 32. 105 Joint Report of Heritage Experts - Exhibit 4 p 15. 106 Joint Report of Heritage Experts - Exhibit 4 p 17 and T3-29/L28 – T3-30/L7. 107 Joint Report of Heritage Experts - Exhibit 4 p 30. 44

[138] These improvements are not distorted or obscured by the new additions. In that regard:

(a) the proposed commercial building to the rear is separated from Athol Place, by about 12 to 15 metres, with only a narrow, light weight, reversible bridge connection between the existing and proposed building. The bridge allows access and egress requirements to be fulfilled without the incorporation of fire stairs and a lift into the original building fabric;108

(b) the verandah and walkway to the rear of Athol Place are proposed in a contemporary architectural style and modern materials, which will not distort or obscure the cultural significance of the place or detract from its interpretation or appreciation;109

(c) the space between the proposed commercial tower and Athol Place is designed to enable greater separation between the buildings at the ground and first floors, which correspond to the floors in Athol Place;110

(d) the new work is clearly identifiable as contemporary architecture that is separate to the 19th century construction of Athol Place;111

(e) the commercial tower is “reversible” – it can be demolished and rebuilt without impacting on the heritage significance of Athol Place;112 and

(f) the new building sits within the original land holding, protecting the early pattern of sub-division.113

[139] I am satisfied that the architectural design and built form of the proposed development, and its character impact, would not conflict with City Plan 2014 as alleged.114

108 Joint Report of Heritage Experts - Exhibit 4 p 32 and Woods T3-29/L28 – T3-30/L7. 109 Joint Report of Heritage Experts - Exhibit 4 p 32. 110 Joint Report of Heritage Experts - Exhibit 4 p 32. 111 Joint Report of Heritage Experts - Exhibit 4 p 23. 112 Joint Report of Heritage Experts - Exhibit 4 p 32. 113 Joint Report of Heritage Experts - Exhibit 4 p 27. 114 A number of the findings I have made in relation to the architectural and heritage issues rely on the opinions expressed by Ms Woods and Mr Lynch. Many of them, such as the restoration benefits and the proposed maintenance and interpretation centre, are matters that are, in any event, evident from other sources, such as the plans. To the extent that the findings are reliant on the opinions of Ms Woods and Mr Lynch, I note that I do not accept the submissions of the appellant that their evidence is not persuasive and ought be given less weight. 45

Amenity and landscaping and reasonable expectations

[140] The appellant alleges that the proposed development will have unacceptable amenity and landscaping impacts and therefore be in conflict with the following provisions of City Plan 2014:

(a) overall outcomes (3)(c), (3)(d) and (6)(a) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code;

(b) overall outcome (4)(k) of the High Density Residential Zone Code; and

(c) overall outcomes (2)(a), (2)(b), 2(c), 2(j), (2)(o) and (2)(q) and performance outcomes PO1, PO13, PO18, PO21, PO23, PO24, PO25, PO29, PO33, PO35, PO53, PO56 and PO58 of the Centre and Mixed Use Zone Code.

[141] The appellant accepts that the findings in respect of the issues of planning intent, building form, character and setback will largely inform the result in respect of these issues.115

[142] The submissions of the appellant, therefore, focussed on:116

(a) overall outcomes (3)(c), (3)(d) and (6)(a) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code, which make it clear that Petrie Terrace and Spring Hill currently enjoy a high level of residential amenity and that it is intended that the amenity be protected;

Mr Lynch’s expertise was not challenged, only the extent of his experience. He is an experienced architect who has spent considerable time researching and analysing the historical value and significance of Athol Place. His extensive architectural experience makes him well placed to express opinions about whether the design of the commercial tower is sympathetic to Athol Place. As for the evidence of Ms Woods, I don’t accept that she failed to provide a rational explanation about the difference in her concerns about focal lengths in the photomontages in this case as compared to in the matter of James Russell Architects Pty Ltd v Brisbane City Council & Anor [2016] QPEC 43 at [47]. The difference in her views stemmed from the lack of distortion in the photomontages in the current case as compared to those in the “fish-eye” images used in the other case. As for her “struggle to explain the decision of Council” with respect to the refusal of demolition of a pre-1946 house at the corner of Birley Street and Penton Lane, that is unsurprising given she was first informed of the matter in the witness box and explained she would need to walk the street to make an assessment. 115 Written submissions on behalf of the Appellant p 28 [140] and [146]. 116 Written submissions on behalf of the Appellant p 28 [141] – [145]. 46

(b) overall outcome (4)(k) of the High Density Residential Zone code, which provides that:117 “Development reflects and supports the level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a high density predominantly permanent residential environment.”

(c) similar provisions in the Centre or Mixed Use Zone Code, such as overall outcome (2)(a) that provides:118 “Development involving a new use in an existing building is appropriate for its location and does not negatively impact on the amenity of the local area or adjoining residents.”

[143] In Wattlevilla Pty Ltd v Western Downs Regional Council [2015] QPELR 21; [2014] QPEC 047, Robertson DCJ observed at 45 [96]: “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.”

[144] In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342; [2007] QPEC 112, Dodds DCJ summarised the approach to be taken as follows at 348 – 349 [40]: “… Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness. Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91. Proposed development will often affect existing amenity. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landholders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered “according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity”. The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject …”

117 Planning Scheme Extracts - Exhibit 2A p 89. 118 Planning Scheme Extracts - Exhibit 2A p 132. 47

[145] As anticipated by the appellant, the issues of amenity have largely been dealt with in the course of consideration of building form, character, setback and planning intent. So too have matters relevant to the issue of reasonable expectations.

[146] For reasons already discussed, I am satisfied that the proposed development is not unacceptable in terms of its built form or its character. It will not result in any undue direct amenity impact in terms of loss of access to daylight, overlooking or loss of privacy.

[147] As for reasonable expectations, it is impossible to ignore that the subject site is specifically identified in the Petrie Terrace and Spring Hill Local Area Plan for use for “centre activities”.

[148] Statements of evidence were received from a number of individuals opposed to the development.119 They are all either residents living in, or owners of, units in Mayfair Residences. It is clear from the statements that the proposed development is seen as one that would detract from the “residential nature” of the local area, particularly because of the residents’ fear of impact from the proposed rooftop food and drink outlet. Despite the residents describing the area as “primarily residential” and as having a “suburban feel”, many recognised the existence of commercial uses in the area, particularly hospital and specialist medical services.

[149] As was observed by Skoien SJDC in Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPELR 614 at 622 [60]: “It is trite to recall that probably all uses of land have some adverse effects on the occupants of a neighbouring residence. Even the most desirable neighbour must occasionally create noise or other activity which to some extent, even minor, is an annoyance to others. Less desirable neighbouring residences may be the site of barking dogs, noisy children, over-loud television or stereo sets, over-frequent lawn mowing, a noisy vehicle. Human activities which disturb others may be annoyingly early or annoyingly late. The perfect neighbour does not exist except for the most tolerant person. So the test is not whether the amenity would be degraded but whether it would be unreasonably degraded.”

119 Appellant’s Bundle of Lay Witness Statements - Exhibit 14. 48

[150] As for other direct amenity impacts, such as impact from outdoor lighting, air emissions and noise, the development is proposed to be conducted in accordance with the conditions contained in the decision notice.120 The conditions include:

(a) condition 20, which limits the operation of the proposed development to between 6 am and 8 pm (with the exception of the roof top food and drink outlet which can operate between 6 am and 10 pm);121

(b) condition 22, which controls the outdoor lighting provided for the food and drink outlet;122

(c) condition 33, which controls air emissions, including food/cooking odours;123

(d) condition 35, which limits amplified music at the approved food and drink outlet to low level background music that is not audible at onsite or nearby sensitive uses and provides that speakers are not permitted to be located at any areas that are external to the confines of the building or at any alfresco/outdoor dining areas;124

(e) condition 37, which requires acoustic screening for any external dining or outdoor dining area of the food and drink outlet;125 and

(f) condition 64, which makes it clear that a liquor license is necessary to supply or sell liquor and the development approval does not exempt the premises from any additional liquor licensing requirements.126

[151] These conditions all control the impacts of the rooftop food and drink outlet. Accordingly, I am satisfied that there are no undue adverse impacts from that part of the proposed development that warrant refusal of the proposed development.

[152] For reasons discussed earlier when dealing with built form, planning intent and character, I am also satisfied that the built form will not have an unacceptable adverse

120 As is apparent from the absence of a conditions appeal, the co-respondent is content to accept the conditions proposed by Council. This was also confirmed in the Co-respondent’s Submissions at pp 47 - 48 [160] – [162]. 121 Book of Documents Volume 2 - Exhibit 1B p 601. 122 Book of Documents Volume 2 - Exhibit 1B p 601. 123 Book of Documents Volume 2 - Exhibit 1B p 606. 124 Book of Documents Volume 2 - Exhibit 1B p 607. 125 Book of Documents Volume 2 - Exhibit 1B p 607. 126 Book of Documents Volume 2 - Exhibit 1B p 622. 49

impact on less tangible aspect of amenity such as visual amenity and perception of character.

[153] The appellant’s written submissions also briefly addressed conflict with:

(a) PO1 of the Centre or Mixed Use Code, which deals with hours of operation;

(b) PO35 of the Centre and Mixed Use Code, with respect to Mr Perkins’ (town planning expert called by the co-respondent) concession that the proposed development does not provide shelter for pedestrian movement; and

(c) PO53, PO54, PO56 and PO58 of the Centre and Mixed Use Code, which deal, broadly, with the issue of landscaping.

[154] With respect to the hours of operation, the appellant confirmed that noise impact is not raised as a reason for refusal. The appellant does, however, request that the discrepancy between the conditions of approval that regulate operating hours and PO1 of the Centre or Mixed Use Code be dealt with at the conditions stage. Counsel for the co-respondent acknowledged that this would be a matter that ought sensibly be dealt with at conditions stage. I agree.

[155] With respect to the conflict with PO35 of the Centre and Mixed Use Code127, the appellant accepted that the conflict is not anything more than a technical conflict that is of no significance, other than as an indicator of over-development of the site. The conflict is of no moment given compliance with a code can, instead, be achieved by compliance with the overall outcomes of the code.

[156] With respect to the landscaping criteria, I do not accept that there is conflict with:

(a) performance outcome PO53(d),128 as the landscaping proposed at the Wickham Terrace frontage and in the proposed two storey terrace area, including the green wall, will contribute substantially to the site amenity of building occupants, users, residents and adjoining residents. The public will have access to the terrace area from Birley Street, and an opportunity to enjoy

127 Planning Scheme Extracts - Exhibit 2A pp 143 – 144. 128 Planning Scheme Extracts - Exhibit 2A p 150. 50

the amenity of the area as part of the food and drink outlet use on the subject site; 129

(b) performance outcome PO54(d),130 as the Wickham Terrace frontage incorporates deep planting that is planted into the natural ground with no underground development;131

(c) performance outcome PO56,132 as the landscaping on the Wickham Terrace frontage provides shade and pedestrian comfort and visual amenity. The landscaping proposed in the terrace area also provides visual amenity;133 and

(d) performance outcome PO58,134 as the development minimises direct overlooking between buildings and to adjoining residential uses through site planning and building design. As such, it is not necessary that landscaping be used to achieve that end.

Need

[157] The issue of need is relevant to:

(a) first, whether there is conflict, as alleged by the appellant, with overall outcome (4)(q) of the High Density Residential Zone Code and performance outcomes PO13 and PO16 of the Centre and Mixed Use Zone Code; and

(b) second, whether there are sufficient grounds to overcome any conflict found to exist with City Plan 2014. This second question is considered below as part of “Grounds”.

[158] Overall outcome (4)(q) of the High Density Residential Zone Code provides:135 “Development for any other non-residential use serves a local community facility need only such as a child care centre or a substation.”136

129 Book of Documents Volume 2 - Exhibit 1B p 689. 130 Planning Scheme Extracts - Exhibit 2A pp 150 – 151. 131 Book of Documents Volume 2 - Exhibit 1B p 689. 132 Planning Scheme Extracts - Exhibit 2A p 152. 133 Book of Documents Volume 2 - Exhibit 1B p 689. 134 Planning Scheme Extracts - Exhibit 2A p 152. 135 Planning Scheme Extracts - Exhibit 2A p 90. 136 Emphasis added. 51

[159] Performance outcome PO13 of the Centre and Mixed Use Zone Code is set out in paragraph [115] above. Performance outcome PO16 provides:137 “Development provide a land use mix which: (a) supports the intended function of the centre or mixed use area; (b) does not prevent commercial or employment growth; (c) includes: (i) complementary uses such as retail, employment, residential and community facilities; (ii) uses that provide for the everyday needs of the local community; (iii) a fine grain of uses particularly on active frontages and adjoining public footpaths and spaces; (iv) residential uses in centre including live-work configurations”.138

[160] The only expert evidence with respect to need was that given by Mr Duane, an economist called by the co-respondent. Mr Duane accepted that the proposed development would serve more than a local need.139

[161] On the basis of that concession by Mr Duane alone, the appellant submits there is conflict with PO16 of the Centre and Mixed Use Zone Code and overall outcome (4)(q) of the High Density Residential Zone Code.140

[162] Council submits that as the provisions of the Petrie Terrace and Spring Hill Neighbourhood Plan Code prevail over the High Density Residential Zone Code, there is no requirement that any centre activities on the subject site serve a local need only.141 Council further submits that to limit uses to those that serve a local need only would seem inconsistent with the current, and long-standing, use of the subject site and the planning intent for the subject site as expressed in the Petrie Terrace and Spring Hill Neighbourhood Plan Code.

[163] Overall outcome (4)(q) limits the type of non-residential uses that can occur in the High Density Residential Zone to those that serve “a local community facility need only”. “Community facilities” is a defined activity group that is limited to cemetery, club, child care centre, community care centre, community residence, community use,

137 Planning Scheme Extracts - Exhibit 2A p 138. 138 Emphasis added. 139 Duane T2-16/L8-22. 140 Written submissions on behalf of the Appellant pp 38 – 39 [210] and [213]. 141 Submissions on behalf of the Respondent Council p 38 [194]. 52

crematorium, educational establishment, funeral parlour, emergency services, health care services, hospital, major sport, recreation and entertainment facility and place of worship.142 This is a vastly different group of uses to that permitted as part of the “centre activities” activity group.

[164] Further, even if one were to look at the other overall outcomes in the High Density Residential Code that permit other types of non-residential uses, such as overall outcomes (4)(m), (4)(n) and (4)(p), the extent of uses contemplated are not as extensive as those permitted in the “centre activities” activity group.

[165] As such, I consider that there is a clear inconsistency between overall outcome (4)(q) of the High Density Residential Zone Code and overall outcomes (6)(d)(iii) of the Petrie Terrace and Spring Hill Neighbourhood Plan Code. In those circumstances, pursuant to section 1.5(d) of City Plan 2014, overall outcome (6)(d)(iii) prevails.

[166] In relation to the provisions of the Centre or Mixed Use Code, Council submits that they do not support a finding of conflict as the subject site is not a “centre” but a site upon which centre activities are appropriate. I do not consider that argument to be persuasive. It is clear from section 9.3.3.1(1)(b) of the Centre or Mixed Use Code143 that the code applies to impact assessable development that is for a use of a commercial or retail nature. It does not only apply to “centres”.

[167] However, when considering whether there is a conflict with PO16 of the Centre or Mixed Use Code, it is important to consider the provision, and the code, in context. In this regard:

(a) the Centre or Mixed Use Code applies to all impact assessable development for a use of a commercial or retail nature;

(b) unlike the provision with respect to non-residential uses in a residential zone, PO16 does not require that the proposed use provide only for the everyday needs of the local community. That is unsurprising as the provision would pose a significant hurdle to any commercial use in Brisbane that serves other than only a local need; and

142 Planning Scheme Extracts - Exhibit 2A p 225. 143 Planning Scheme Extracts - Exhibit 2A p 132. 53

(c) PO16 refers to the needs of the “local community” not “residents”. “Community” is defined in the Macquarie Dictionary as “all the people of a specific locality or country; a particular locality, considered together with its inhabitants”.

[168] The “local community” in this particular locality is not only comprised of permanent residents, but also hospitals and other medical facilities. There are also many hotels in the area.144 The Petrie Terrace and Spring Hill Neighbourhood Plan Code encourages the continuation of those mixed uses in the locality.

[169] The evidence of Mr Duane establishes that the food and drink outlet that forms part of the proposed development would provide for the workers in the area, the visitors and even the local residents.145

[170] In those circumstances, I consider there is no conflict as alleged.

Grounds

[171] As noted earlier, the decision about the development application must not conflict with a ‘relevant instrument’ unless there are sufficient grounds to justify the decision despite the conflict.

[172] In Weightman v Gold Coast City Council [2003] 2 Qd R 441; (2002) 121 LGERA 161; [2003] QPELR 43; [2002] QCA 234 at [36], in considering a similar requirement to s 326 of the Sustainable Planning Act 2009, Atkinson J observed: “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; 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.”

[173] This test was discussed and reaffirmed by the Court of Appeal, with respect to s 3.5.14(2)(b) of the Integrated Planning Act 1997 (Qld) in Lockyer Valley Regional

144 Report on Architecture and Visual Amenity by Mr Worrell - Exhibit 6 p 11; Statement of Economic Evidence of Mr Duane – Exhibit 8 pp 11 – 15. 145 Duane T2-5/L41 - T2-6/L1-9. 54

Council v Westlink Pty Ltd (No 3) [2013] 2 Qd R 302; (2012) 191 LGERA 452; [2013] QPELR 188; [2012] QCA 370 at [18] – [21]. It was also reaffirmed as applicable to s 326 of the Sustainable Planning Act 2009 in Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147 at [118].

[174] Having regard to the conclusions I have reached above, while the conflicts could not be described as trivial or technical in nature, I consider them to be towards the lower end of the scale. They relate to inadequate setbacks to Penton Lane and a failure to provide shelter for pedestrian movement (which the appellant accepted was no more than a technical conflict). For the reasons given, I have concluded that the conflicts otherwise alleged are not established.

[175] Had I found a greater level of conflict, as alleged by the appellants, I would nevertheless have concluded that there are sufficient grounds to warrant approval. The conflicts alleged by the appellant generally relates to overdevelopment of the subject site. Had I accepted the appellant’s submissions, there would have been a material conflict with the text of City Plan 2014. However, the gravity of the conflict would need to be assessed in light of my findings about an absence of unacceptable adverse consequences in terms of direct and indirect amenity and character impacts. The conflicts would also need to be weighed against the grounds advanced by the co- respondent and the merit of the proposal.

[176] The grounds relied on by the co-respondent can be broadly described as need and other matters of merit.

Need

[177] The only need expert to give evidence in the proceeding was Mr Duane. The appellant submits that his evidence does not establish a need for the proposed development for numerous reasons. They are, in short, as follows:146

(a) neither Mr Duane’s analysis of uses around other hospitals, nor the floor space demand analysis, demonstrates that there is a need for the proposed development sufficient to overcome any conflict with the applicable planning instrument. In this regard, the appellant observes:

146 Written Submissions on behalf of the Appellant pp 39 – 43. 55

(i) the analysis had no regard to City Plan 2014;

(ii) the neighbourhood plans and other planning provisions that apply around each of the hospitals differs;147

(b) the demand analysis for floor space undertaken by Mr Duane:

(i) was based on the whole of south-east Queensland and, accordingly, any need that exists could not be allocated to a particular location;

(ii) assumed a figure of 25 square metres per health worker, which could not be regarded as conservative in light of other studies;148

(c) Mr Duane’s analysis effectively ignored the issue of supply and, as has been observed by this court in the past, while there may be some demand for a certain proposal, an objective view may reveal that there is not a community need in the planning sense.149 The failure is said, by the appellant, to be telling where office uses in the District Centre Zone, the Mixed Use Zone and the Petrie Terrace and Spring Hill Neighbourhood Plan area can, in large part, be established as code assessable or self-assessable uses;

(d) Mr Duane acknowledged he had not seen any expressions of interest;

(e) Mr Duane conceded that an appropriately scaled and sized development on land would achieve similar benefits to the proposed development; and

(f) in the event the Court accepts that the land is to be used for residential purposes, it is notable that Mr Duane did not undertake any residential needs analysis.

147 See Bundle of Further Planning Scheme Extracts – Exhibit 16. 148 See City of Sydney CBD Precinct Summary Report 2012 – Exhibit 17 and The Evolving City Report 2009 – Exhibit 18. 149 Arksmead Pty Ltd v Council of the City of Gold Coast [1999] QPELR 322 at 330; All-A-Wah Carpark Pty Ltd v Noosa Shire Council [1989] QPELR 155 at 157. 56

[178] With respect to the second last of the appellant’s criticisms, the observations of Rackemann DCJ in Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64 at [77] - [79] are particularly pertinent:150 “[77] There is also a need for the other components of the proposal. It has already been noted that the planning schemes support a strong focus on medical related facilities in this sub-precinct. Mr Duane’s analysis led him to the conclusion that there is, indeed, a demand for medical related services in the locality. The need is enhanced by the proximity of the PA hospital and other existing hospitals. The medical suites to be offered in the proposal will go some way to meeting that need. It was submitted, for the respondent, that such facilities could be provided elsewhere in the sub-precinct. That may be true, but it does not mean that the subject proposal would not assist in meeting a need. In any event, and as Mr Duane pointed out, there is an obvious convenience, for the aged, in having their residential facilities co-located with medical services. [78] There is a need for more trained aged care workers generally. That the facility would be in close proximity to the PA hospital also means that it is well placed to respond to an emerging trend of training facilities in close proximity to major medical facilities. Again it was submitted, for the Council, that such services do not need to be included in this building. There may be no absolute necessity, in that regard, but as Mr Duane pointed out, the co-location of such facilities with aged care offers the opportunity for beneficial practical training at the same site as the theoretical training. [79] It was submitted, on behalf of the respondent, that the need could be addressed (albeit to a lesser extent) by a development of acceptable height and that the appellant had not explained the necessity for the number of storeys proposed. There is of course, as Mr Duane pointed out, a benefit in maximising, within acceptable limits, the extent to which development meets the identified need. More fundamentally, it should be remembered that the Court is considering the acceptability of the proposal before it, rather than choosing between that and a hypothetical proposal offering similar advantages to this mixed use proposal but at a lesser height. Whether such an alternative proposal, with a similar level of benefit, would be brought forward in the event the subject proposal were rejected is speculative.”151

150 It is acknowledged that the observations related to a different neighbourhood plan and a needs analysis by Mr Duane that demonstrated a need in the catchment area itself. Those differences do not detract from the general propositions espoused by Rackemann DCJ, and emphasised in bold, that I consider to be relevant here. 151 Emphasis added. 57

[179] Even if all of the other criticisms by the appellant of Mr Duane’s evidence were accepted, I consider that the co-respondent has, nevertheless, demonstrated a level of need for the proposed development.

[180] As was observed by Skoien SJDC in Body Corporate for Kelly’s Beach Resort v Burnett Shire Council & Ors [2003] QPELR 614 at 621: “[49] Need, in planning terms, usually raises the question whether the proposed facility will add something desirable to the relevant area, to the benefit of those who live there. See for example Fitzgibbon Hotels Pty Ltd v. Logan CC (1997) Q.P.E.L.R. 208; Harburg Investments Pty Ltd v. BCC (2000) Q.P.E.L.R. 313. [50] That is not the case here, at least in the strictest sense. The residents in the immediate area are probably unlikely to derive much practical benefit from Kelly's Beach Resort, although the possibility should not be totally disregarded. I would be surprised if occasional patronage of the restaurant by local residents, many of whom live within walking distance, did not occur, especially if the cuisine is notably good. It seems that the tennis court use is not restricted entirely to guests of the resort. Finally, local residents may find the resort occasionally provides very convenient accommodation for their visiting friends and relatives. I do not, however, suggest that this “need” is of weighty moment. [51] However the planning concept of need is not necessarily restricted to a consideration of the needs of the immediate locality. The relevant area can be larger than that. It can encompass the surrounding suburb, or even the whole shire. The material benefit can be the economic benefit which a development can bring to that larger area. This is emphasised in Aim 4 of the Strategic Plan (see para. [44]). Rather than “need” a more appropriate title for this issue might have been “Regional Economy”.”152

[181] Further, as was submitted by the co-respondent, when a proposed development involves the provision of essential services (such as food and groceries, which are the necessities of life) the bar to establish community or planning need ought not be set too high: Parmac Investments Pty Ltd v Brisbane City Council & Ors [2008] QPELR 480 at 484 – 485 [30]; [2008] QPEC 7. It is appropriate here to regard the provision of health care services in a similar light, particularly when City Plan 2014 indicates a deliberate planning decision to provide an opportunity for the provision of “centre activities”, including health care services, on the subject site.

[182] A significant benefit that the proposed development will bring to the community is that it provides for the co-location of health care services within a flat, short walk to

152 Emphasis added. 58

Brisbane Private Hospital. The evidence of Dr Cohen highlighted the importance to the community of this benefit. He explained that many of his patients, and other patients such as those of a cardiologist, have limited mobility. For any incline, the distance that patients can walk halves.153

[183] The co-location of facilities has other synergistic benefits for patients. Patients could see a doctor, fulfil their scripts at pharmacies and get help with allied health services such as physiotherapy, counselling and the like in one location.154

[184] There is also a general need for specialists to undertake their private practice consulting surgeries close to the theatres and the wards located in private hospitals. This is because medical specialists undertake many surgical operations, as well as seeing patients, during the day. Co-location also allows a number of specialists in one location to take advantage of significant infrastructure such as medical imaging.155

[185] While Brisbane Private Hospital is expanding, the amount of floor space available within the hospital for medical specialist consulting rooms is decreasing.156 As was noted by Mr Duane, hospitals may not wish to accommodate medical specialist rooms “because those sorts of facilities can be provided in buildings nearby, whereas things like wards and beds can’t be. So there would be priority for, what I’ll say, more traditional hospital uses rather than consulting suites if that was where there was some demand that they thought they could service.”

[186] As was noted by Mr Duane, other than being located within Brisbane Private Hospital itself or in Bryntirion, “you couldn’t get any closer” to the hospital than the subject site.157 In light of the matters referred to in paragraphs [181] to [185] above, this is an important consideration in terms of the community benefit of the proposed development.

153 Cohen T2-64/L19-37. 154 Statement of Economic Evidence of Mr Duane - Exhibit 8 p 29 [4.14]. 155 Statement of Economic Evidence of Mr Duane - Exhibit 8 pp 29 – 30 [4.14]; Duane T2-7/L7-11. 156 Brisbane Private Hospital documentation – Exhibit 15. See also Duane T2-7/L45 – T2-9/L44. 157 Duane T2-31/L38-40. 59

Other matters of merit

[187] The co-respondent relies on a number of matters of merits identified by Mr Perkins to justify approval of the proposed development, namely:158 “1. The proposed development will allow for the adaptive reuse of Athol Place. 2. The site is located within walking distance of the Brisbane CBD and two main rail stations serving the CBD and wider metropolitan area. 3. The site’s strategic locations is recognised by the Draft Spring Hill Neighbourhood Plan and identified as an area where significant future growth is intended. 4. The proposed development will provide modern office accommodation, health care services, shop and food and drink outlet uses which will provide a service to nearby workers and residents. 5. The proposed development is able to be accommodated without significant adverse impacts on adjacent sites and will not compromise the potential measurable future redevelopment of the adjoining site. 6. A hypothetical redevelopment of an amalgamated site, including 307 and 309 Wickham Terrace, would have very similar overall impacts (potential greater setbacks but also a greater building height of 15 storeys) compared to the proposed development and a subsequent redevelopment of 309 Wickham Terrace.”

[188] With respect to ground 1 above, the appellant submits that such an outcome could also be achieved by a development that is of a far reduced intensity of built form. Similarly, it is submitted that any form of development would be within walking distance of the Brisbane CBD and key infrastructure. As is noted in paragraph [178] above, such matters are speculative given there is no certainty about the type of development that may be advanced in the event the subject development is refused.

[189] As for the other grounds:

(a) I put no significance on ground 3 for the reasons explained in paragraph [23] above;

(b) ground 4 has been considered as part of the issue of need;

(c) ground 5 has been considered already in relation to whether there is conflict and the nature and extent of any conflict; and

158 Joint Report on Town Planning – Exhibit 5 p 32 [197]. 60

(d) I put no significance on ground 6 given its speculative nature.

Conclusion

[190] While I have concluded that the proposal is in conflict with some performance outcomes in City Plan 2014, I consider there are sufficient planning grounds to justify approval despite the conflict.

[191] The proposed development is one of substantial merit.

[192] The subject site is particularly suitable for development of this kind. It allows for the co-location of medical services within a flat, short walk of Brisbane Private Hospital. The subject site is also one that can absorb a considerable extent of appropriately designed development without having undue impact, particularly as a consequence of the three street frontages and the qualities of Penton Lane.

[193] The revitalisation and adaptive re-use of Athol Place is also a powerful ground in support of the proposed development. Athol Place is currently shut off from public enjoyment. The proposed development will open it up and restore the components that are of heritage value.

[194] I am satisfied that the co-respondent has discharged its onus. The appeal will, in due course, be dismissed. I will adjourn the further hearing to allow for the formulation of conditions.