Australia: 20/13 Hankamer & Ors v Brisbane City Council & Anor [2013] QPEC 28: submitter appeal dismissed

Planning and environment case updates

(Searles DCJ - 25 June 2013)

Submitter appeal – application for a development permit for a multi-unit dwelling and preliminary approval for building work – Low Density Residential Area – Low Density, Character and Low-Medium Density Code – impact assessable (generally appropriate) – loss of vegetation – setbacks – shadows – amenity – density – width of site frontage – noise – whether strict compliance with City Plan performance criteria required – whether sufficient grounds for approval in event of conflict with City Plan

Sustainable Planning Act 2009 (Qld), ss 241, 314, 324, 326, 493(2)

Land Title Act 1994 (Qld), s 48C(1)

Environmental Protection (Noise) Policy 1997 (Qld)

Facts: This was a submitter appeal against Council's decision to approve a development application for a development permit for 11 multi-unit dwellings and preliminary approval for building work on land located at Gilruth Road, Kenmore.

The subject site was located within the Low Density Residential Area classification under Council's Brisbane City Plan 2000 (City Plan).

The issues in dispute were size and bulk, density, width of site frontage, setbacks, noise, vegetation and landscaping, general amenity and conflict with City Plan, particularly the Low Density, Character and Low-medium Density Code (LMR Code).

In relation to size and bulk, the Appellants argued that the existing character of the locality was well established and was intended to have the character of a low density area characterised predominantly by detached houses. The Co-Respondent (Metcap) argued that two storey multi-unit dwellings were clearly envisaged within the Low Density Residential Area and were generally appropriate. Council argued that the proposed development was of a kind and scale specifically envisaged for the Low Density Residential Area and that there was no conflict with City Plan.

In relation to density, the Appellants argued that the density of the proposed development contributed to its overall adverse impacts on the locality and that density was demonstrated by the excessive gross floor area of 33% rather than 30% and the proposed density of 23.25 dwellings per hectare. Metcap argued that the 11 detached dwellings on 4,728m2 equated to a density of one house per 429.9m2 which compared favourably with the minimum lot size of 400m2 for conventional subdivisions. Metcap pointed out that the proposal did not require a dedicated road (as a conventional subdivision would) and that the proposal was commensurate with the low density nature of the Low Density Residential Area, met the relevant Performance Criteria of the LMR Code and would comfortably co-exist in the low density locality despite the marginal exceedance of the gross floor area. Council pointed out that the 11 dwellings were separate and individually designed and that the exceedance of gross floor area was imperceptible, short of studying the subject plans.

In relation to site frontage, the Appellants argued that the proposal's 32m frontage was inadequate. The relevant Acceptable Solution from the LMR Code required a minimum frontage of 40m.

In relation to setbacks, the Appellants argued that the proposal conflicted with Performance Criterion P13 of the LMR Code which required any development not to significantly reduce daylight to open space and habitable rooms in adjacent development with boundary walls limited in dimensions and openings to minimise those impacts.

With respect to noise, the Appellants argued that the proposal would conflict with Performance Criterion P20 of the LMR Code which provided that noise from a development must not unreasonably affect existing or likely future dwellings adjacent to the land. Metcap and Council argued that a proposed acoustic barrier would reduce current noise levels and that Performance Criterion P20 was satisfied.

With respect to vegetation and landscaping, the Appellants argued that the proposed landscaping was not consistent with the established landscape character of the area and did not accommodate the retention of existing vegetation. The Appellants were critical of the evidence given by Metcap's arborist, Mr Fletcher, and argued that the Court should not place any weight on that evidence. Metcap argued that Council's approval demonstrated that Council would issue any necessary permit for the removal of vegetation, that the landscape amenity value had been retained and that the proposed tree removal was not a basis for refusal of the application. Council argued that the vegetation on the site was of a low and imprecise order at best, with character or amenity attributes only. Council also submitted that the loss of existing vegetation would not constitute a ground for refusal of the application.

The Appellants also argued that the proposal would result in significant adverse amenity impacts (visual amenity, loss of privacy and noise). Council and Metcap argued that it was unreasonable to expect that no development would occur on the site and that the proposal was generally appropriate under City Plan. All uses of land would have some impact on neighbours and central to any consideration of amenity impacts was the question of what residents were justly entitled to expect.

The town planning experts engaged for Council and Metcap identified a number of following grounds in favour of approval of the development application if conflict with City Plan was found, including:

  1. The proposal represented logical and efficient consolidation in an urban context which was promoted by the South East Queensland Regional Plan and City Plan.
  2. The proposal would assist in achieving City Plan's objective of a variety of accommodation types that would enable the public to find suitable accommodation through all stages of their lives.
  3. The design was complementary to architectural styles in the locality.
  4. A serious effort had been made to retain trees of value to the community.
  5. The proposal met the performance criterion in relation to bulk and scale.
  6. The proposal had attractively designed buildings and landscaping and would provide a pleasant living environment for its occupants.
  7. The proposal complied with the LMR Code and was therefore generally appropriate in the Low Density Residential Area.
  8. The character, location, siting, bulk, scale, shape, size, height, density, design and external appearance accorded with the reasonable expectations of the Desired Environmental Outcomes for the Low Density Residential Area.
  9. The proposal would present positively within the streetscape and not detract from the appearance, environment or amenity of the locality.
  10. The proposal did not generate greater traffic moment or hazard than reasonably expected in the surrounding locality and was suitable for the capacity of the road system.
  11. The proposal was accessible to both private and public transport and has an adequate level of utilities and infrastructure for the use.
  12. Noise generated by the proposal was within levels expected for the area.
  13. The proposal would not result in unreasonable risk or hazard onsite or to adjoining land.

Decision: The Court held, in dismissing the appeal, that:

  1. In relation to size and bulk, the proposal satisfied the City Plan requirements notwithstanding the small exceedence of gross floor area which was minor and would be imperceptible. City Plan must be read as a whole. A Performance Criterion may be satisfied other than by compliance with the relevant Acceptable Solution and that is what had happened.
  2. One could not transpose the outcome of a standard form of subdivision in terms of bulk, size and density to a situation where an entirely different application was being considered. The focus of the Court must be on the application under consideration, not on some hypothetical alternative which might also be available. The evidence of Council's and Metcap's experts was preferred in relation to the issue of density.
  3. No adverse impacts would flow from the reduced frontage and there was no conflict with City Plan. The proposal satisfied the relevant Performance Criterion.
  4. In relation to setbacks, Performance Criterion P13 was satisfied notwithstanding that the rear setbacks of proposed houses 7, 8 and 9 did not comply with the relevant Acceptable Solution. However, it was appropriate that any approval be conditioned with the requirement that the Community Management Statement be required to contain a provision in its bylaws requiring the height of vegetation along the boundary near houses 7, 8 and 9 at all times be kept at an appropriate height to avoid unreasonable shadowing of adjoining properties.
  5. In relation to noise, Performance Criterion P20 of the LMR Code was satisfied.
  6. In relation to the loss of vegetation, the issues raised by the Appellants pointed out the difficulty of predicting with certainty the future health of retained trees before construction was underway. However, these matters were not sufficient to found a conclusion that Mr Fletcher's evidence should not be relied upon. Nor were they matters which resulted in in non-compliance with the Low-Medium Density Residential Area Code.
  7. The proposed would not detrimentally affect the amenity of the area.
  8. No conflict between the proposal and City Plan had been found. However, if there was a conflict, there were sufficient grounds to justify approval of the application notwithstanding the conflict.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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