PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Aspinall & Ors v Brisbane City Council [2015] QPEC 31	
PARTIES:	BENJAMIN ASPINALL, BARBARA BAKER, RAYMOND BAKER, VANESSA BEHAN, PETER BELL, KATRINA CARUSI, PAULA CATTANCH, MICHELLE CATTANACH-REES, JOHN CAZEY, ANN CLARK, GRAHAM CLARK, CRAIG CLYDSDALE, ERICA CLYDSDALE, BRIAN COLEMAN, MARK COMBE, GEM COWLISHAW, MATTHEW CROOK, TONI DILLON, NIGEL DOWLING, RACHEL DURDIN, MONICA FINN, BENJAMIN FITZGERALD, JENNY FAULKNER, ANNE GAMBARO, STEPHEN GAMBLE, CHRISTINE GILLEN, JANEEN HAMBURGER, KEITH HAMBURGER, BRIAN HARMSWORTH, ROSALIND HARMSWORTH, JANET HANDLEY, YVETTE HESSE, JOHN KELLY, PIERETTE KEMPER, ROBERT KEMPER, LAURA KREBS, SCOTT KREBS, KELLEY MACFARLANE, LYN MACFARLANE, ARLYN MANGABET, DES MANNION, SANDRA MANNION, LEON MATTHEWS, BRIDGET MCCULLAGH, MAX MCKILLOP, CHRIS MCMILLEN, DOUG MCMILLEN, ROBYN MCMILLEN, SHAUN MCMILLEN, KATRINA MENGEDE, PAUL MENGEDE, FAYE MISSON, MAREE MUNGOMERY, DAVID NOLAN, JULIE NOLAN, CHRIS NOONAN, MEGHAN NOONAN, CELINE O’BRIEN, CARA PHILLIPS, MARK PHILLIPS, BETTY PYLE, LORETTA SEETO, RON SERDIUK, CAROL SHEFFIELD, MADELINE SHIELD, DAVID SMITH, SHARON SNOWDON, NICK STUART, DENISE TOWELL, MICHELLE TRIBE, MICHAEL WALSH, DARYL WHITTAKER, ROBYN WHITTAKER, MATTHEW WINDSOR
(Appellants)
v
BRISBANE CITY COUNCIL 
(Respondent)
and
BUTTERFIELD PROJECTS PTY LTD (ACN 009832731)
(Co-Respondent)
	
FILE NO/S:	4747/13	
DIVISION:	Planning and Environment Court	
PROCEEDING:	Hearing	
ORIGINATING COURT:	Planning and Environment Court	
DELIVERED ON:	25 June 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	28, 29 August 2014; 1, 2, 3 September 2014	
JUDGE:	Horneman-Wren SC DCJ	
ORDER:	The appeal will be refused. Further hearing adjourned to allow conditions of approval to be formulated.	
CATCHWORDS:	ENVIRONMENT AND PLANNING –ENVIRONMENTAL PLANNING –PLANNING SCHEMES AND INSTRUMENTS –QUEENSLAND –GENERALLY –Where proposed refurbishment of disused aged care facility to construct a multi-unit residential dwelling –where neighbouring residents oppose the proposed developments –where appeal against decision of City Council to approve proposed developments –whether proposed development conflicts with the planning scheme set out in Brisbane City Plan 2000 so as to disallow approval –where Brisbane City Plan 2000 classifies particular area as Low Density Residential Area –whether the proposed development is generally appropriate or inappropriate impact assessable development under the Plan due to classification – where conflict with aspects of planning scheme – where sufficient grounds for approval of development with conditions 

ENVIRONMENT AND PLANNING –ENVIRONMENTAL PLANNING –MATTERS OF CONSIDERATION FROM CONSENT AUTHORITY –MATTERS TO BE CONSIDERED –CONSIDERATION OF PLANNING SCHEMES –Whether the council intended the site be returned to low density residential development requiring significant demolition of existing building –where within reasonable expectation that a building of the same shape and dimensions remain for use as multi-unit dwelling in accordance with City Plan –Whether the building is not consistent with the existing local character –where the building is consistent with local character by virtue of 40 year existence in the locality –Whether building is consistent with the limits for bulk, scale and density of Low Density Residential Area –where planning scheme contemplating future development cannot be said to contemplate present buildings not continuing –Whether ‘existing non-conforming development’ which should be phased to discourage extension or entrenchment of non-complying development –where alteration or removal of structurally sound buildings cannot be required by a planning instrument requires consideration of appropriateness of proposed reuse of the building

Sustainable Planning Act 2009 (Qld), s 314, s 324, s 495, s 326, s 683
Brencorp Properties Pty Ltd & Anor v Pine Rivers Shire Council [1997] QPELR 12
Cox & Ors v Brisbane City Council & Anor [2013] QPELR 874
Hankamer & Ors v Brisbane City Council & Arnor [2013] QPEC 28
Heath & Anor v Brisbane City Council [2008] QPELR 566
Hymix Australia Pty Ltd v Brisbane City Council & Ors [2014] QPEC 35
Lewis v Townsville City Council [2012] QCA 099
SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24
Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPELR 466
T Wrafter & Sons Pty Ltd v Brisbane City Council [1999] QPELR 440
WBQH Developments Pty Ltd v Gold Coast City Council [2009] QPEC 054
Weightman v Gold Coast City Council (2003) 2 Qd R 441 
	
APPEARANCES:	Mr M A Williamson of counsel, instructed by Connor O’Meara Solicitors, for the appellants
Mr J G Lyons, instructed by the Brisbane City Legal Practice, for the respondent
Mr C Hughes QC with Ms N Kefford, instructed by Deacon & Milani, for the co-respondent	
[1]	In the pleasant suburb of Grange, on an island block, sits a disused aged care facility which has fallen into disrepair.  Its owner, Butterfield Projects Pty Ltd, wishes to develop the land and existing buildings to construct a multi-unit dwelling development comprising 35 units.  Numerous residents of the area oppose the proposed development.  They bring this appeal against the decision of the Brisbane City Council to approve it.  The existence of the buildings and whether the proposed development is an appropriate re-use of them  is very much at the centre of this appeal.
The Issues in Dispute
[2]	The issues in dispute were defined by order of the Court on 19 June 2014 to be:
(a)	the issues identified in paragraphs 5 and 6 of the Amended Notice of Appeal;
(b)	the sufficient grounds notified by the Co-Respondent provided on 4 March 2014; and
(c)	the matters raised in sections 5.0.8, 5.1.9 to 5.1.16, 5.4.1 to 5.4.7 and 6.7.11 of the joint report of the town planning experts dated 2 June 2014.
[3]	As conducted by the parties, the case addressed disputed issues narrower in scope than those identified in the order. 
[4]	The town planning experts identify the “key issue” as essentially relating to the scale of the overall development, and whether the retention of the existing buildings and their conversion to apartments, together with an additional carpark structure, is appropriate. Most of the planning issues identified in the Amended Notice of Appeal fall within a consideration of that issue. There are also a number of traffic engineering issues.
[5]	The Court must determine whether the proposed development conflicts with the planning scheme set out in the Brisbane City Plan 2000 and, if so, the nature and extent of such conflict; and whether there are sufficient grounds to approve the development, with or without conditions, notwithstanding any such conflict.
[6]	In many ways, this case resolves itself to a contest between existing character on the one hand, and planned character on the other hand.  In regard to the latter, the appellants contend that the existing built form on the site is discordant with the planned character for the area, and that this discordance will be entrenched with the approval of the proposed development.
The site
[7]	The site is located at 6 Southerden Avenue and 4a Gawler Street, Grange.  Formally, it comprises Lots 3 and 4 on RP136249.  Of those two lots, Lot 3 is presently an access restriction strip owned by Council.  Council has consented to the inclusion of this strip in the proposed development to provide access to the site from Gawler Street.
[8]	The total area of the site is 3,676m2, of which the strip owned by Council comprises only 46m2.  
[9]	The site has frontage to Southerden Avenue, Gawler Street, Days Road and Progress Road. There are no adjoining blocks. All other buildings in the immediate surrounds are separated by those roadways – hence its description as an island block.  
[10]	Access is presently provided via a crossover from Southerden Avenue.  Under the proposed development that access will remain, with additional access provided from Gawler Street.
[11]	The site falls from south to north with levels varying by up to 6.5m. The topography of the site is, perhaps, best illustrated by the fact that the existing building appears as a two-storey building from Days Road, a three-storey building from Southerden Avenue and a three to four-storey building from Gawler Street.  
[12]	The building presently on the site is the remnant structure of an aged care facility which operated there for almost 40 years.  It was approved in stages from 1972 to 1979.  The aged care facility consisted of 70 units and related facilities.  The built structures occupy a gross floor area of 3,335m2, or 91% of the 3,630m2 which comprises Lot 4.
[13]	The aged care facility ceased operating some time ago and the building has fallen into disrepair.  Some work has been performed on the building including the stripping out of the ceilings to the top levels, windows, doors and lightweight partitions, bathrooms and services including plumbing and mechanical plant.  The work has also included some back propping to structural slabs and saw cutting and removal of some brickwork and other structural elements.  
[14]	The structural engineers agree that the existing building is in good structural condition; is suitable for the proposed residential use without detriment to the useful life of the structure of the building; and is not now, nor will it be in the foreseeable future, a candidate for demolition.
Surrounding locality
[15]	The residential area of Grange in which the site is located contains predominantly one to two-storey dwelling houses, many of which are of pre-1946 “timber and tin” character.  Opposite the site on Gawler Street is one house which fronts the street and a further two which have side boundaries to the street.  Those two dwellings front Southerden Avenue and Billington Street respectively.  
[16]	Two houses front Southerden Avenue opposite the site.  One of those is of substantial proportions, presenting a built form of similar linear dimensions to the existing building as it fronts Southerden Avenue.  A child care centre is located opposite the site to the west on Progress Parade.  Opposite the site on the corner of Days Road and Yarradale Street (which extends from Southerden Avenue to the south) is a commercial character building in which an accountant’s office is located.
[17]	Two railway stations, Newmarket and Alderley, are located within approximately 1km of the site; both down significant hills. Around these stations are higher density forms of development including apartments, units and flats.

The proposed development
[18]	The proposal is for the refurbishment of the existing building to create 35 residential units.  Those units would be a mix of one, two and three bedroom over three floors; seven on a lower ground level and 14 on each of a ground and first level.  
[19]	Parking spaces would be provided for 48 vehicles.  Thirty-seven of those, including 10 visitor spaces, would be located on the lower ground level.  This would be achieved through the use of 25 existing car parks and the addition of 12 further car parks in a new parking area to be constructed facing Gawler Street.  The access to the 37 car parks would be via the existing carpark entry on Southerden Avenue.  The further 11 car parks would be at basement level of the new car parking area.  These would be accessed via a ramp entrance off Gawler Street.
[20]	There is to be the demolition of part of the existing building facing Days Road, which will reduce the gross floor area by 479m2 to 2,856m2; or to approximately 77% of the site.
[21]	The refurbishment of the remaining building includes the introduction of design elements that will enhance its appearance.  This will be achieved by providing greater visual diversity in the appearance of the building’s facades through articulation, verandas and fenestration.  The remodelling of the building’s facades, which currently present as relatively uniform, will assist to modulate the length of the building into legible sections that are comparable in width to the horizontal proportions of neighbouring houses.

The legislative framework
[22]	The appeal is by way of hearing anew which must be decided based on the laws and policies applying when the application was made, but the Court may give weight to any new laws or policies the Court considers appropriate.  As the proposed development is impact assessable, it must be assessed against, amongst other things, any planning schemes.  Here, the planning scheme is contained in Brisbane City Plan 2000.  A further planning scheme, Brisbane City Plan 2014, commenced on 30 June 2014 and may be given weight, if the Court considers that appropriate.
[23]	The proposed development must be decided based on the impact assessments.  The decision must not conflict with a relevant instrument, including the planning scheme, unless there are sufficient grounds to justify the decision, despite the conflict.  For this purpose, “grounds” means matters of public interest, and do not include the personal circumstances of the applicant, owner or an interested party.
[24]	Part of the legislative framework within which the appeal must be decided is that s.683 of the SPA provides that a planning instrument, which includes a planning scheme, cannot require lawfully constructed building work to be altered or removed.
Brisbane City Plan 2000
[25]	Under Chapter 3 of the Brisbane City Plan 2000, development which is subject to impact assessment is to be assessed against the whole planning scheme, including any relevant codes or local plans, and cannot be approved if it compromises the achievement of the Desired Environmental Outcomes (“DEOs”) for the area in which the site is located.
[26]	The Desired Environmental Outcomes for all residential areas include that a range of housing types, sizes, tenures and affordability is provided throughout the city to enable residents to remain in their neighbourhood for their entire life if they wish.  
[27]	The site is located in the Low Density Residential Area. The Intent of the Low Density Residential Area includes that the predominant form of development is detached houses, one or two storeys in height.  It is also part of the Intent that other residential developments, such as aged persons homes, will be located in the Low Density Residential Areas.  The intent also provides that:
“Multi–unit dwellings will only be allowed on sites over 3,000m2, at a scale and density commensurate with the Low Density Residential Area.  This will be achieved by strict adherence to a maximum gross floor area of 30% of the site area.”
[28]	The particular Desired Environmental Outcomes applicable to the Low Density Residential Area include that low density living environments predominantly comprise separate houses of no more than two storeys.
[29]	City Plan 2000 also contains, as Chapter 2, the Brisbane Strategic Plan which sets the broad policy of the City Plan and which is a reference point for general development policy.  The Strategic Plan includes Desired Environmental Outcomes and Strategies for the city which set broad policy at a citywide level, and form the basis from which all other provisions of the Plan flow.  The Citywide DEOs are complemented by Area DEOs which provide an increasing level of specificity within the Plan.
[30]	Those Citywide DEOs for the natural environment and waterways include that Brisbane’s environmental quality and natural assets are protected and restored and contribute effectively to no net loss of biodiversity, the management of public health and the social and cultural wellbeing of the community.  One identified citywide strategy to achieve that DEO is the promotion of efficient use of renewable resources and reduction of consumption of non-renewable resources, including through reusing structurally sound buildings.
[31]	Another Citywide DEO is that Brisbane is a safe, healthy and vibrant place to live, offering a wide range of local and regional services, facilities and activities, and diverse housing, community cultural and recreational choices.  An identified strategy to achieve this DEO is enhanced social diversity, choice and accessibility through, amongst many other things, housing diversity and affordability.
[32]	Another citywide DEO is that Brisbane’s land use and built environment promotes its unique environment, such as its timber and tin architecture, topography and urban layout and features a sustainable network of Residential Areas, Centres, employment areas and transport links.  An identified strategy for achieving this DEO is supporting the preferred pattern of urban settlement established by the Regional Framework for Growth Management for South East Queensland 1998 through, amongst other things, maintaining consistency with the preferred pattern in the Plan and infrastructure and development decisions.
[33]	Another identified strategy for achieving this citywide DEO is requiring development to enhance the amenity, environmental and cultural contexts of its locality through, amongst other things, enhancing character by development that is sympathetic to the character of surrounding areas and through consistency by preventing the intrusion of incompatible uses.
[34]	Under City Plan 2000 the Elements of the City comprise various area classifications and their components.  They include a number of residential neighbourhoods, amongst them the Low Density Residential Area.  The Plan sets out strategic directions for the various elements of the city by identifying the challenge for each element and the response under the Plan to each of those challenges.  The components of the response in the residential neighbourhood strategy include meeting realistic expectations of future amenity, and maintaining character.
[35]	The strategy states that people should be able to choose their residential location with realistic expectations for the future amenity of the area.  The Plan sets out strategic directions in that regard which include to:
•	prevent intrusion of development that could seriously detract from residential amenity;
•	mitigate the effects of new residential development on existing dwellings to ensure access to daylight and sunlight, breezes and privacy;
•	ensure new residential development contributes to pleasant living environments and is designed to integrate with, rather than be segregated from, existing development in the area;
•	protect views from the impacts of development only where nominated in a local plan, or where development exceeds the relevant code’s acceptable solution for building height, and as a result detracts from views from nearby properties.
[36]	In respect of maintaining character, the residential neighbourhood strategy states that each neighbourhood has character derived from its architecture, subdivision and road patterns, location in the city, topography, vegetation, social composition, history and proximity to a local centre.  It provides that a further component of the residential neighbourhoods strategy is to ensure housing choice and affordability through the city’s neighbourhoods, providing sufficient housing choice to enable residents to remain in their neighbourhood through all stages of their life if they wish.  It states that housing choice requires a variety of housing types and tenures to be available across the city and to enable access to housing for a wide range of income levels.
[37]	As already noted, development subject to impact assessment cannot be approved if it compromises the achievement of the DEOs for the area in which the site is located.  For each area, level of assessment tables identify impact assessable development which is either generally appropriate, or which is generally inappropriate.
[38]	For generally appropriate impact assessable development, adverse effects are usually able to be mitigated, and the proposal will be approved only where those impacts are effectively mitigated.  For the assessment process, this requires the identification of any adverse impacts, and the means by which they are to be effectively mitigated.
[39]	Generally inappropriate impact assessable development is not specifically envisaged in the relevant area.  For those developments, the Plan provides that the appropriateness of a proposal in any particular circumstance will be dependent on its location, design and impacts.  To be approved, the proposal will need to demonstrate, relevantly, that:
•	the character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the proposal accords with the reasonable expectations and DEOs for the area in which the land is classified;
•	the proposal has a positive impact on the landscape, scenic quality and streetscape of the locality;
•	the proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of:
-	on–site and on–street parking
-	number or type of vehicle movements
-	manner of access to the site.
[40]	The level of assessment table for the Low Density Residential Area identifies that multi-unit dwelling development will be generally appropriate where it is on a site of over 3,000m2 and complies with the Residential Design – Low Density, Character and Low-Medium Density Code.
[41]	Chapter 5 of the Brisbane City Plan 2000 contains the Codes which set out Performance Criteria and Acceptable Solutions.  The Performance Criteria provide a statement of the outcome that an Acceptable Solution must achieve.  Acceptable Solutions represent the preferred way by which compliance with Performance Criteria can be achieved.  There may be other ways in which compliance may be achieved.  A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met.  
[42]	If a proposal fails to comply with Performance Criteria, except in insignificant details, and it cannot be conditioned to mitigate impacts, it will be refused.
[43]	The Codes relevant to this matter are the Residential Design – Low Density Character and Low-Medium Density Code (“LMR Code”), particularly Performance Criterion P1; and the Transport, Access, Parking and Servicing Code (“TAPS Code”), particularly Performance Criterion P9.
[44]	Performance Criterion P1 of the LMR Code provides:
“Building size and bulk must be consistent with the low density nature of the locality.”
[45]	The associated Acceptable Solutions are:
“A1.1 	Gross floor area is no more than 0.3 times the site area

A1.2 	Building height at any point is no more than 8.5m above ground level and 2 storeys

A1.3 	The site area is a minimum of 3,000m2 and has a minimum frontage of 40m”.  
[46]	Performance Criterion P9 of the TAPS Code provides:
“The layout of development must achieve adequate provision for servicing on site that is clearly defined, safe and easily accessible and
must be designed to contain potential adverse impacts of servicing within the site.

Servicing must be located to discourage on–street loading and must not detract from the aesthetics or amenity of an Area”
[47]	The associated Acceptable Solutions are:

“A9.1 	Servicing facilities are provided on–site in accordance with the design vehicle table in the Transport, Access, Parking and Servicing Planning Scheme Policy

A9.2 	Loading/unloading facilities and associated vehicle manoeuvring areas on–site are designed in accordance with the servicing layout design guidelines in the Transport, Access, Parking and Servicing Planning Scheme Policy”

City Plan 2014
[48]	City Plan 2014 commenced on 30 June 2014. Although then only in draft form, it was considered by the town planning experts.
[49]	Under City Plan 2014 the City is divided into a number of zones. The site is within the Low Density Residential Zone for which there is a Low density residential zone code. 
[50]	The purpose of the Low density residential zone code is to provide for predominantly dwelling houses supported by community uses and small-scale services which cater for local residents. The local government purpose of the code includes: to provide for suburban living in a 1 or 2 storey dwelling house; to provide for other housing types at a house scale to provide housing diversity offering choice to different household types and individuals to suit residents through different life-cycle stages; and to ensure development occurs on appropriately sized and configured lots and is of a form and scale that reinforces a distinctive subtropical character of low rise, low density buildings set in green landscaped areas.
[51]	The purpose of the code is to be achieved through the overall outcomes for the development location and uses and the development form. The development location and uses overall outcomes include that: 
(a)	development comprises dwelling houses of predominantly 1 or 2 storeys in height, on appropriately sized and configured vacant lots, which maintain the low density detached housing suburban identity of the Low density residential zone; 
(b)	development including dual occupancy or a multiple dwelling is not accommodated within this suburban setting unless on a well-located site of over 3000m2; and 
(c)	development for a residential aged care facility or retirement facility, which provides housing diversity and enables people to remain in their local neighbourhood throughout their life cycle, may be accommodated at appropriate locations where height is no greater than 1 or 2 storeys.
[52]	City Plan 2014 includes a multiple dwelling code the purpose of which is to assess the suitability of development to which the code applies. The purpose is to be achieved through overall outcomes including that development: 
(a)	has a site area and frontage width that is sufficient for the scale and form of a multiple dwelling development, to deliver a comfortable living environment with minimal impacts on neighbours; 
(b)	in the Low density residential zone is located on larger sites that are accessible and well serviced by public transport and infrastructure; 
(c)	does not isolate or negatively impact on the development potential or future residential amenity of adjoining sites; 
(d)	 has a bulk, scale, form and intensity that integrates with the existing and intended neighbourhood structure for the area as expressed by zone, zone precinct and neighbourhood plan outcomes and is consistent with, amongst other things, the location and street context of the site; 
(e)	in the Low density residential zone includes a range of detached and attached building forms and is of an intensity that reflects the lower density form and character of that zone;
(f)	is of a height that is appropriate to the strategic and local context and meets community expectations consistent with 2 storeys in the Low density residential zone;
(g)	positively contributes to the immediate streetscape and pedestrian environment with highly articulated building facades and varied roof elements;
(h)	provides parking which is integrated into the site and building and does not negatively impact on the site or adjoining sites or the quality and amenity of the streetscape.
[53]	The assessment criteria under the Multiple dwelling code identify performance outcomes and acceptable outcomes. Performance outcome P05 provides that development is of a bulk and scale that is consistent with the intended form and character of the local area having regard to, amongst other things, existing buildings that are to be retained, and the impact of slope. The acceptable outcomes (AO5) include maximum building heights as specified in Table 9.3.14.3.B. That table specifies the maximum height for development on the Low density residential zone as 2 storeys and 9.5m.
[54]	Performance outcome P06 provides that development has a building height that is consistent with the streetscape local context and intent for the area having regard to, amongst other things, the predominant height of existing approved buildings in the street, and the topography of the area and site slope.
[55]	Performance outcome PO52 provides that development in the Low density residential zone respects the intensity and form of the neighbourhood and demonstrates an appropriate size density. The associated acceptable outcome is that development does not exceed 1 dwelling per 200m2 of site area.
Generally appropriate or generally inappropriate impact assessable development? – Performance Criterion P1 of the LMR Code
[56]	There is dispute between the parties not only as to whether the proposed development conflicts with Brisbane City Plan 2000 in several respects, but also as to whether it is generally appropriate, or generally inappropriate, impact assessable development under that Plan. 
[57]	The appellants, in their written submissions, contend that the level of assessment table for the Low Density Residential Area dictates that the proposed development is generally inappropriate impact assessable because it does not comply with the LMR Code, particularly Performance Criterion P1.
[58]	The appellants then contend that the proposal does not satisfy each of the three matters identified in Chapter 3, s 2.5.2 as matters required to be demonstrated before generally inappropriate impact assessable development can be approved.  They contend that the first two matters cannot be satisfied because of conflicts arising with respect to character, bulk, scale and density of the buildings; and that the third matter cannot be satisfied because of the traffic generated by the development.
[59]	The respondent Council contends, as its primary position, that the development is generally appropriate impact assessable.  It takes that position because, it says, the proposed development is compliant with the LMR Code.  Essentially, it contends that whilst the proposal exceeds the 30% gross floor area referred to in the acceptable solutions to Performance Criterion P1, failure to comply with an acceptable solution does not render a proposed development non-compliant with the Code if the relevant performance criterion is otherwise achieved. For reasons developed elsewhere in its submissions it contends Performance Criterion P1 is achieved.
[60]	Council’s secondary position is that even if it were to be determined that the proposed development was generally inappropriate impact assessable, it may still be approved.
[61]	For its part, Butterfield says that this issue, and another, were not particularised by the appellants as allegations of conflict with City Plan 2000.  Notwithstanding that, Butterfield was content to deal with the issue, its late introduction not causing it embarrassment, because the conflict with Performance Criterion P1 of the LMR Code alleged by the appellants concerns the size and bulk of the buildings, which are issues Butterfield had otherwise dealt with in its case.
[62]	The question as to whether the proposal is generally appropriate, or generally inappropriate, impact assessable development tends to demonstrate, however, a certain circularity in the impact assessment process.  
[63]	All impact assessable development is to be assessed against the whole of the planning scheme, including any relevant codes. That requires a consideration of the DEOs; both those which apply generally citywide and those which apply to the particular area in which the site is located.  Measures to achieve DEOs are said to “cascade through the Plan” in certain ways, including as levels of assessment, which are to provide guidance on assessment processes and relevant codes. The levels of assessment are set out in the level of assessment tables.
[64]	An assessment against the whole of the planning scheme will also involve a consideration of City Plan’s Residential Neighbourhood Strategy to meet realistic expectations of future amenity.
[65]	Therefore, even if it were considered that there was compliance with the LMR Code, in that the proposal satisfied Performance Criterion P1 for multi-unit dwellings in low density residential areas because the building size and bulk were consistent with the low density nature of the locality and, as a result, the development was impact assessable generally appropriate, that would not exclude further consideration of the reasonable expectations and DEOs for the area.  However, those matters are to be given further consideration in the particular context of generally inappropriate impact 
assessable development as set out in s 2.5.2.
[66]	In order to determine whether the proposed development is generally appropriate or generally inappropriate requires first a determination of whether it complies with the LMR Code; particularly Performance Criterion P1 for multi-unit dwellings in low density residential areas.  Once that issue is determined the context in which other issues such as reasonable expectations of future amenity and DEOs are to be considered, or further considered, will be exposed and understood.
[67]	It is, therefore, convenient to commence with the consideration of whether the proposed development is in conflict with Performance Criterion P1 of the LMR Code.
[68]	In order to satisfy this performance criterion, the building size and bulk must be consistent with the low density nature of the locality.  It is uncontentious that the proposed development does not satisfy this performance criterion by meeting or adopting the acceptable solutions.  It meets neither the Gross Floor Area limit of 30%, nor the building height restriction of 8.5 m.
[69]	Butterfield submits that by referring to “the low density nature of the locality” P1 is expressed in terms different to Performance Criterion P2 in each of the Residential Design-Medium Density Code and the Residential Design-High Density Code.  Each of those provide that “building size must be consistent with the intentions for the area”.
[70]	In identifying this distinction in the language used in the codes I do not understand Butterfield to be contending that Performance Criterion P1 in the LMR Code excludes any reference being had to the planned character for an area.  Rather, Butterfield submits that it is a matter of emphasis; the emphasis being upon consistency with the low density nature of the locality, as opposed to intentions for the area.
[71]	The appellants submit that the low density nature of a locality takes its meaning from the Low Density Residential Area provisions of chapter 3 of City Plan 2000, particularly the intent in s 5.2.1 and DEO 1 in s 5.2.2.
[72]	Dealing first with s 5.2.2, the Desired Environmental Outcomes for the Low Density Residential Area have little bearing on matters.  The desired environmental outcome that low density living environments predominantly comprise separate houses of no more than two storeys reflects the intent expressed in s 5.2.1.  Predominantly does not, however, mean exclusively. 
[73]	The achievement of this DEO would not be compromised by the approval of the proposed development. The integrity of the DEO would not be endangered. A predominance of separate houses of 1 to 2 storeys can still be achieved. Indeed, given that the development involves the reuse of buildings which were formerly used as an aged care facility, it is difficult to see how approval of the proposal would result in separate houses being any less predominant than was formerly (and presently) the case.
[74]	In respect of s 5.2.1, similarly, in my view, nothing turns on the prescription that the predominant form of development is detached houses, one or two storeys in height.  Again, predominant does not mean exclusive.  The statement of intent itself makes that clear. Other forms of development are expressly contemplated: aged persons homes and multi-unit dwellings.
[75]	The statement in the intent that multi-unit dwellings will only be allowed on sites over 3,000m2 at a scale and density commensurate with the low density residential area, and that this will be achieved by strict adherence to a maximum floor area of 30% of the site area, is not to be read literally, such that any exceedance of the 30% GFA requirement cannot be approved.  It is not to be applied as an inflexible standard.
[76]	Nonetheless, even allowing for flexibility, the gross floor area of this proposed development, being 77%, substantially exceeds the scale and density intended for the low residential area.  As the appellants contend, and as was conceded by Mr  Schomburgk the town planning expert called by Butterfield, it is akin to Medium Density Residential Development under the City Plan.  A similar concession was made by Mr Ovenden, the town planning expert called by the Council. 
[77]	Butterfield admits conflict with the intent to the extent that the intensity of the gross floor area for the proposal is of a range expected and promoted by the Medium Density Residential Area rather than the Low Density Residential Area.
[78]	This establishes conflict with the intent for the Low Density Residential Area set out in s 5.2.1. In my view, the conflict of this proposed development with the intent for the Low Density Residential Area is substantial.  It exceeds the gross floor area limit by a factor of 2.5.
[79]	However, that does not compel the conclusion that, in terms of Performance Criterion P1 for Multi-Unit Dwellings in Low Density Residential Areas, this building’s bulk and size is not consistent with the low density nature of the locality.  Nor, more generally, that the nature and extent of the conflict with the Planning Scheme, when read as a whole, is major or substantial.
[80]	In my view, Performance Criterion P1 has as its focus, in assessing the consistency of a building’s size and bulk, the particular locality, and the low density nature of that locality.  The language used in the performance criterion seems quite deliberate.  It does not, as it might easily have done if it were intended, refer in a general way to the low density nature of the Low Density Residential Area.  It requires consideration of the particular locality.
[81]	The low density nature of this locality includes the existing built form within the locality, and particularly the building presently on the site.  That built form has been a visually prominent element of the visual context of this particular locality for over 35 years.  
[82]	The visual amenity experts agree that the nature of the locality includes its inherent character, and that the nature of this locality includes the contribution made to it by the existing building. They also agree that as the proposal will not significantly alter the existing visual context, it will preserve its inherent character.
[83]	Therefore, there is merit in the Council’s primary position that the proposed development complies with the LMR Code and, as such, is impact assessable generally appropriate development.  
[84]	However, Mr Hughes of Queens Counsel on behalf of Butterfield, in conceding a level of conflict with the Planning Scheme in respect of the buildings’ gross floor area and height, urges that the Court consider the application on the basis of whether there are grounds for approval notwithstanding such conflict, rather than having the matter determined on the issue of whether or not conflict exists, that being, as he put it, a matter upon which minds might differ.  
[85]	Given that the co-respondent, who carries the onus of proof on the appeal, urges the court to deal with it on that basis, and given that it is the respondent Council’s secondary position that even if conflict exists it is not, in this case, an impediment to approval, it is appropriate to assume conflict with Performance Criterion P1 of the LMR; examine its nature and extent applying the considerations relevant to generally inappropriate development; consider the nature and extent of any other conflict with the scheme also applying those considerations; and determine whether there are planning grounds in favour of the application which are, on balance, sufficient to justify approving the application notwithstanding that conflict.
The nature and extent of any conflict
Conflict arising from the size and density of the proposed development
[86]	The conflict of the proposed development with Performance Criterion P1 of the LMR Code has already been addressed. Proceeding on the basis that the proposal does not comply with that performance criterion, and is thus generally inappropriate impact assessable, consideration must be given to whether the character, location, siting, bulk, scale, shape, size height, density, design and external appearance accord with the reasonable expectations and DEO’s for the area in which the land is classified. That, in turn, involves a consideration of other provisions of City Plan with which the appellants allege the proposal conflicts; particularly s 4.2.2.1 relating to reasonable expectations, and s 4.2.2.4 relating to maintenance of character. These considerations are interrelated.
Desired Environmental Outcomes
[87]	Dealing first with the DEO’s, DEO 1 at s 5.2.2 has also been addressed above. In my view, the area in which the site is located would still comprise, predominantly, separate houses of no more than 2 storeys if the proposal were to be approved. When the site was operated as an aged care facility the area comprised predominantly, but not exclusively, separate houses. It will remain so comprised.
Reasonable Expectations as to Future Amenity
[88]	In respect of the reasonable expectations for the area, the Elements of the City provide that people should be able to choose their residential location with ‘realistic’ expectations as to future amenity and, to that end, the Plan’s strategic directions include to prevent the intrusion of development that would ‘seriously’ detract from residential amenity.
[89]	The Appellants submit that the reasonable expectations of the community are informed, principally, by the planning scheme.  In this regard, the appellants advance what can fairly be described as their central argument: that the policy intention of council, as expressed in the planning scheme, is that the site be returned to low density residential development, and that to achieve that it is intended that there will be a change on the site after the cessation of the aged care use. That change will involve significant demolition of the existing building. 
[90]	A number of the appellants who provided statements spoke directly of their expectation that the redevelopment of the site would involve the demolition of the whole, or a substantial part, of the buildings.
[91]	The reasonableness of the expectations of the appellants is to be judged by reference to the planning scheme; but not exclusively so. The statutory planning controls against which those expectations are to be judged include s 683 SPA. Those controls also include that development in conflict with a planning scheme may be approved if there are sufficient grounds to justify it.
[92]	In Brencorp Properties Pty Ltd & Anor v Pine Rivers Shire Council Quirk DCJ observed:
“…the reasonableness of professed expectations (including of course those of the land’s owner) can be judged only by reference to the statutory planning controls. While residents of the area may well have expected (and hoped) that the development of the subject land would be at a level no more intense than reflected in the present zoning, that a rezoning such as this could be favourably considered was not a matter that could reasonably be ruled out.”
[93]	Although made in the context of a rezoning case under earlier legislation, his Honour’s observations are apposite here.
[94]	The amenity of this area has for almost 40 years included the presence of this building and, for most of that time, its use as an aged care facility. This is not only the shared opinion of the joint visual amenity experts, but a fact also recognised in the statements of the various appellants; even if described as a “big ugly building”, or “unsightly”. 
[95]	There was not, however, a unanimity of view amongst the resident appellants as to how the existing building affected the visual amenity and character of the area. One appellant who had been a resident of Southerden Avenue for in excess of 20 years stated that the building had never been, and was not currently, accepted by residents as a desirable part of Southerden Avenue’s streetscape. Whereas the evidence of the appellant who is the longest term resident of Southerden Avenue, having been a neighbour of the site since 1971 and who has thus experienced the building in situ for the entire period that it has been there, refers to she and her husband initially having had no objection to there being an aged care facility in the street because it was relatively new and attractive for its time. She also considered that as time passed the facility blended in with its surrounds even further. 
[96]	That there would be continued use of the existing building would have formed part of the reasonable expectations of the residents, and of Council.  There is no evidence upon which it could be found that there was any expectation of a cessation of the operation of the aged care facility. Many of the residents referred to their expectations that it would have continued in operation indefinitely, and even in one case that he and his wife would take up residence there.
[97]	Taking into account these matters, it would have been within the reasonable expectations of anyone considering that location that there would continue to be a building of that shape and of those dimensions on this island block.
[98]	Given that the demolition of the existing building could not be compelled, even upon the cessation of its then present use as an aged care facility, it would not have been beyond the reasonable expectations of a person considering that locality that there would remain a built form of that shape and of those dimensions – even in a disused and potentially derelict state.
[99]	It follows that it would be part of the reasonable expectations of a person considering that locality that the built form, which could not be required to be demolished or otherwise reduced in its dimensions, might be redeveloped so as to be put to a different use.
[100]	Given that the City Plan contemplates multi-unit dwellings as being a use to which land in the Low Density Residential Area may be put, it would be within reasonable expectations that this was a use to which this built form may be put. 
[101]	In circumstances in which the building has been on the site for decades and used throughout that period as a residential aged care facility, this proposal is not intrusive development that could seriously detract from residential amenity.
[102]	This conclusion is supported when other strategic directions under s 4.2.2.1 in regard to meeting reasonable expectations of future amenity are considered. The reuse of a building without increase of its size (in fact with decrease) or change of its shape will not alter or impede the access of other existing dwellings in the vicinity to daylight, sunlight or breezes. One appellant stated that, from the perspective of himself and his neighbours to the south-west of the site, “…the cooling effect of the predominant north-easterly summer breezes would be significantly impacted upon by the retention of this large building”.   He states that he recently renovated his home, including retrofitting passive cooling features that rely on those breezes for summer cooling. That evidence rather demonstrates that the building does form part of the existing amenity. To the extent that the building blocks breezes, it has done so for 40 years. The reliance currently placed upon those breezes for cooling of other dwellings in the vicinity will not be impacted by the retention of the building. That the breezes might be enhanced if the existing building were to be removed is not to the point. That is not what s 4.2.2.1 of City Plan is directed towards in terms of mitigating the impacts of future development on residential amenity. 
[103]	Some appellants expressed concerns that the amenity of the area will be adversely affected by the units being occupied by tenants or “renters”. It was considered that features such as the building’s density, some of the units being small, and their being poorly lit would lead to such occupancy by tenants. The concerns included that these tenants may only be resident for a short term and be unlikely to have time to integrate with the surrounding community and foster a caring relationship with their neighbours, and that the height and density of the building will bring “many strangers (and their friends) into the area”. Not only does this evidence appear somewhat prejudiced, it does not accord with the expert evidence of Mr Schomburgk, which I accept. Mr Schomburgk considered them to be quite attractive units, many with expansive views. He considered that they would be attractive to permanent residents.
[104]	Privacy, as referred to in s 4.2.2.1, may be affected to some degree. Several of the residents  who provided statements, and whose houses are in the immediate vicinity of the site, expressed concerns about adverse impacts upon their privacy from residents within the proposed development overlooking their properties. However, as the evidence of at least two of those residents made clear, the impact upon privacy which they fear will occur arises not so much from any increased ability to overlook their properties that the development will create, but as a consequence of greater utilization of balconies by the residents of the units as compared with the residents of the aged care facility. The balconies on the aged care facility allowed overlooking, but were less often used by the residents than the appellants believe they will be used if the proposal is approved. Greater use of the balconies is not an impact which would be caused by the approval of the development. Because the balconies existed on the building when used as an aged care facility, it must have been within the appellants’ expectations that those balconies might be used by whomever occupied or visited the residences. The presence of such balconies on the proposed development, or their extension, cannot be said to occasion any significant adverse effect upon privacy.
Maintenance of Character
[105]	Nor, in those circumstances, could it be found that the proposed development is disrespectful of, or incompatible with, local character. As s 4.2.2.2 of City Plan makes plain, local character is derived from a number of sources, including architecture subdivision and history. The existing built form on the site forms very much a part of the architecture and history on this subdivision within the locality. The character of the locality is to a considerable degree formed by the long term presence of this built form. Nothing about the proposed development would impact in any significant way on any of the sources of character identified in City Plan. The architecture and vegetation associated with the development will, in fact, improve those elements of character.
[106]	The appellants submit that the present building is discordant with, and in stark contrast to, the predominant character of the area. They contend that it is well recognised that existing buildings may be discordant with predominant local character. They contend that such a finding was the “key foundation stone” in WBQH Developments Pty Ltd v Gold Coast City Council. That case concerned an application by a developer to construct a 13 storey building at the southern end of Palm Beach on the Gold Coast. Nearby the proposed development site were two existing buildings of, respectively, 26 and 18 storeys. Those two buildings had been constructed at a time when approval was not required. Since their construction, successive planning schemes had imposed a height restriction of 7 storeys.
[107]	The relevant performance criterion being considered was that all buildings were required to be constructed to a height which complemented “the distinctive local character of the coastal part of the city”. 
[108]	Her Honour, Judge Kingham DCJ, observed:
“Under those schemes no further buildings of that nature at this end of Palm Beach have been approved. Whether any were applied for is not in evidence. The fact is a broad policy intention has been repeatedly endorsed by council and there has been no departure from it. The impact the existence of these building may have on the application of the current planning scheme must be considered in that context.”
[109]	The appellants contend that there are similarities with the development being proposed in this case. They contend that the policy intent of council has been repeatedly endorsed, without departure, in the planning schemes. That intent, they contend, is to return the land which comprises the site to low density residential development.
[110]	The appellants also rely upon subsequent observations by her Honour that the two tall buildings stood in contrast to the predominant built form and were discordant features which clashed with, rather than complemented, local character. They contend that this is precisely the case they advance here. To that end, they say that they are not ignoring the existing structure, rather they contend that it is not consistent with the existing character. 
[111]	There is a significant, indeed fundamental, distinction between this case and that considered by Kingham DCJ. The case before her Honour did not involve an application for the re-use or redevelopment of either of the existing discordant buildings, which could not be required to be removed; but rather an application to approve a further building which itself would clearly be in substantial conflict with the planning scheme.
[112]	The present application is not one in  which a developer points to the existence of the present built form on this site as establishing, or informing, the local character such that another proposed development, otherwise in conflict with the planning scheme, may be approved for another site in the locality. It is not a case in which it is said that building B will be consistent with local character because of the existence of building A in the locality. It is a case in which it is said that building A itself is consistent with the local character because of its own existence within that locality for 40 years.
Height Bulk and Scale
[113]	The appellants contend that the proposed, and the existing, building are inconsistent with the limits for bulk, scale and density of the Low Density Residential Area stated in the 2000 and 2014 planning schemes. 
[114]	As already noted, it is central to the appellants’ case that the planning scheme calls for change on the site which will result in demolition of the existing building, at least in part. The appellants rely particularly on evidence of Mr Buckley, given under cross-examination, in which he said that partial demolition was one of a number of options available. Mr Buckley went on to say that the planning scheme advocated a greater intervention and a greater change to the existing structure than what is being proposed.
[115]	If Mr Buckley’s interpretation of the planning scheme were accepted, it leads inexorably to the destruction of existing structures. Insofar as partial demolition is an ‘option’, the only other option which accorded with his interpretation would be complete demolition. Indeed, this is recognised in the appellants’ submissions. They say that “it is axiomatic that significant partial demolition of the existing building would be required to comply with the planning scheme, or to make any sensible and genuine attempt to comply”.
[116]	That the appellant’s approach to the application contemplates that there will be demolition of all or part of the existing built form was also apparent from the cross-examination of Mr  Schomburgk.  He had given evidence that one of the questions in considering reasonable expectations was whether the building in its current form should continue.  It was put to Mr Schomburgk by counsel for the appellants that the clear answer to that question was provided by the planning scheme.  The answer as provided by the planning scheme, so it was put, was that a built form with the bulk, height and scale of what was on the land at the moment was not contemplated to continue. 
[117]	Whilst Mr Schomburgk accepted that the Planning Scheme did not contemplate a built form of that bulk, height and scale, he thought that whether the planning scheme contemplated that such an existing built form was not to continue was a different concept.  
[118]	I agree.  In my view, a planning scheme which contemplates future development of a particular scale or density cannot be said, because of that, to contemplate existing buildings which conflict with that scale or density should not continue to exist in their present form.  This is particularly so in light of s 683 of the Sustainable Planning Act. It would be to conclude that a planning scheme, as a planning instrument, could contemplate, or indeed require, the very thing that it is expressly prohibited from doing. 
[119]	In my view, the absence of any provisions specific to this site in the Grange District Local Plan contained in City Plan 2000 should not be taken to be an indication of council’s intention that there would be demolition of this building, or some part of it, after the aged care facility ceased operation. The appellants submit that the Grange District Local Plan provides no guidance to the adaptive reuse of any buildings in the local plan area, let alone the subject land. This, they contend, is in stark contrast to that which is provided in other local plans and neighbourhood plans.
[120]	The fact that the building on this site has not been identified for its heritage or character value, the preservation of which is reflected in a plan for, or encouraging of, its adaptive reuse is not to be equated with an intention that it not be reused. Local plans do not, and one would not expect that they would, address potential future reuse of all buildings or precincts in the area.
[121]	There is also a flaw in the reasoning of Mr Buckley as it relates to density under City Plan 2014.  He says that the density achieved by 35 units in the proposed development is about twice that which ought be achieved under City Plan 2014.  However, in the absence of demolition, in terms of scale and bulk, even if there were only 18 units in the redevelopment, which would comply with the acceptable outcome of one unit per 200m² under City Plan 2014, the size, shape, scale and bulk of the building would be the same. The units would just be larger.
[122]	Therefore, Mr Buckley’s conclusion that this acceptable outcome under City Plan 2014 leads to the same answer as the gross floor area acceptable solution under City Plan 2000, but by a different route or by applying different mathematics,  is not correct. The gross floor area prescription in City plan 2000 limits density by restricting the area of the site which the built form may occupy. The units per area prescription in City Plan 2014 limits density by restricting the number of units, but not the area of the site which they may occupy.  Both may work to limit the number of people who reside in the development, but by quite different means and with potentially very different outcomes as to size, shape, scale and bulk of the built form.
Entrenchment of non-conforming development
[123]	Mr Buckley’s opinion that there should be demolition of, at least some, of the existing built form is also based on his view that there “is a well established planning philosophy that existing non-conforming development is phased out. This philosophy discourages the extension or entrenchment of non-complying development.” 
[124]	Butterfield contests that there is such a philosophy. It emphasises that this is not an application for approval to continue an existing lawful non-conforming use, but an application to re-use buildings which were lawfully constructed and which are not candidates for demolition. Mr Schomburgk supported this view. He said that in town planning non-conforming uses had always been spoken of, not non-conforming development.  
[125]	Because of that distinction, Butterfield submits that authorities concerning existing non-conforming uses need to be considered with caution. In any event, it submits that the principle against entrenching existing non-conforming uses is not absolute and inflexible, and will yield in an appropriate case.
[126]	In my view, Mr Buckley’s opinion in this regard, focussing as it does on what he describes as non-conforming development, is based upon an incorrect premise. It assumes that the existing built structure and the use to which it was put was such that it was previously existing non-conforming development. It could only be upon such an assumption that it could be said that  such non-conforming “development” would be “entrenched”. This is particularly evident from paragraph 29 of Mr Buckley’s statement where in speaking of the phasing out of non-conforming development he says, “Here, we are half way there – the use has been abandoned”.
[127]	The use of buildings as an aged care facility within the Low Density Residential Area was contemplated by City Plan 2000. The evidence does not establish that the buildings were non-conforming development prior to the cessation of that use. Indeed, if they were to be returned to that use, the evidence does not establish that they would be non-conforming development.
The development as proposed and appropriate reuse
[128]	Once it is accepted that in order to change the shape and reduce the dimensions further demolition is necessary, one starts to approach consideration of some more preferable development than that being proposed.  The court is not permitted to approach the application on that basis.
[129]	Mr Buckley’s evidence tends to encourage such impermissible consideration of hypothetical, alternative proposals.  Mr Buckley observes that “modifications to the building in addition to or as alternative to full redevelopment as suggested by Mr Schomburgk is another realistic option”.  He goes on to suggest that “Removing parts of the building to achieve less GFA, an attempt to integrate for example, as called for by the code, may well result in a more acceptable development”. (emphasis added)
[130]	A number of appellants also express preference for development not being proposed.
[131]	Avoiding being distracted into considering alternative development not being proposed, and accepting that s 683 SPA provides that alteration or removal of these structurally sound buildings cannot be required by a planning instrument, the consideration very much focuses upon whether this proposed reuse of the building is appropriate.
[132]	Mr Williams of counsel for the appellants suggested to Mr Schomburgk that the balance struck by the planning scheme is overwhelmingly in favour of protecting residential amenity rather than reusing the structure as proposed. Implicit within that suggestion is the, at least partial, demolition of the existing built form.  In terms of the shape and dimensions of the existing structure, its bulk, height and scale, there is no reuse which might be proposed which would accord with the intent for development in the low-density residential area set out in paragraph 5.2.1 of City Plan 2000.  
[133]	Mr Schomburgk emphasised that, in his view, the relevant issue is what impacts the density will have, and whether the proposal will detract, to any unacceptable degree, from the amenity of this locality.  Mr Schomburgk’s approach is consistent with the assessment required by City Plan 2000 of generally inappropriate impact assessable developments.  It provides that the appropriateness of a proposal in any particular circumstance will be dependent on its location, design and impacts.  
[134]	Counsel for the appellants sought to test this by suggesting that in order to assess the extent of such impacts the base line from which the assessment must commence is the height, bulk and density limits prescribed for low-density residential development in the City Plan.  In my view, such an approach to assessing the impacts on amenity, particularly visual amenity, is flawed.  
[135]	To approach the issue of impact upon amenity on the basis of a built form which accords with the prescriptions the height and gross floor area referred to in the statement of intent or acceptable solutions for multi-unit dwellings in a low-density residential area as set out in City Plan 2000, is artificial.  It is to use as a basis for comparison, and thus assessment of impact, a built form that neither presently exists, nor is proposed.  It is also to ignore that which does exist and which has existed for 40 years.   
[136]	The impact upon amenity is to be measured by the change from the existing to the proposed.  It would be a different consideration if the site under consideration were a greenfield, undeveloped site, or one upon which the proposal itself contemplates that any existing structures are to be demolished and building started afresh, or are to be retained and increased in size and bulk.  
[137]	An example which tends to demonstrate that Mr Schomburgk’s approach of assessing impacts of the development should be favoured is found in the appellants’ submission that the impacts on amenity include a visual impact, “namely the impact of the bulk and scale of an unintended land use and the activity associated with it.” The appellants acknowledge that this submission is contrary to the views of the visual amenity experts.
[138]	The appellants do not develop how the visual amenity will be adversely impacted by the activity associated with the use of the land as units. In respect of the impact of the bulk and scale, however, these are not functions of the intended use; but of the existing built form. The change in use makes no difference to the bulk and scale. The only impact, as identified by the experts, is the improvement in appearance of the building which will make it more compatible in scale and design with the neighbouring houses. It is also to be borne in mind that those experts identify that the actual direct visual impact of the existing building is limited to the streets which bound the site, although a somewhat greater local visual catchment area is identified because of the building’s extended influence due to its contribution to the broader neighbourhood character and legibility. Mr Schomburgk was also of the opinion that there was limited direct visual impact with the building only being visible from the residences of about 10 of the appellants.
[139]	The appellants submit that where the exceedance is as great as it is here, the proposed development stretches beyond the flexibility inherent in City Plan. They submit that the approach which should be taken here is analogous to that taken by the court to the question of conflict in Stappen Pty Ltd v Brisbane City Council & Ors where Judge Wilson SC (as his Honour then was) said:
“[25]… More problematic and troubling, however, is the bulk and scale of the building which, at its highest point, exceeds by 50% the height limits imposed by the Codes and is well above limits upon the density of development. … It is this excess of size and scale which tells against a finding that the proposal truly complements existing housing, or the designation for the area and, I am satisfied, it fails to comply with DEOs 3.3.2.2 and 5.3.2.2.
[26]… The submission (while relevant in the sense that the preservation of the existing building must entitle the Appellant to the benefit of a degree of flexibility in the application of the requirements of the Planning Scheme) ignores the effects of height, size and scale upon which the Scheme plainly places considerable importance19. While these parts of the Scheme20 cannot be absolutely prescriptive, they provide a clear guide to the criteria which, the Planning Scheme anticipates, will ordinarily apply in areas of this kind.
[27]… Significant non-compliance with suggested limits on height and density indicates, firstly, that the proposal faces serious hurdles before it could be described as having a positive impact on the streetscape or that could establish that it “accords with the reasonable expectations and DEOs for the area in which the land is classified”; and, secondly, that when the question of conflict with the Planning Scheme arises the discrepancy is likely to be categorised as of a serious, or significant kind.” (emphasis as per the appellants’ written submissions at para 141)
[140]	However, when closely analysed, his Honour’s judgment is more supportive of approval than refusal of this development. The development in Stappen was in a character housing area. It had been constructed as a social club in the 1970’s and used as such until 1999 when it commenced being used, without approval, as professional offices. The application to the court was for a material change of use to regularise the discordant use. That was not opposed. The application also sought permission to add two storeys above the existing building. Those storeys would comprise eight, two storey residential units. The proposed GFA was 98 per cent of the site area.  At its highest, the building would stand 12.2m and four storeys. The council, which opposed the development, had conceded that the use of the existing building for office purposes was a sensible and practical outcome and that the building ought not be demolished. Indeed, the council had no objection to some residential use in association with the office purposes; it would have been prepared to accept four units occupying one additional storey. The town planning experts had agreed that one additional residential floor would not have been inappropriate.
[141]	His honour’s observations about bulk and scale and about significant non-compliance with suggested height and density limits must be understood in the context in which they were made. Particularly, they ought not be considered as applicable, at least not directly so, to an exceedance of height and density limits by an existing built form. What his Honour was considering was an exceedance which would be created by substantial increases to the existing built form. As noted, some, but more limited, increases to the existing built form would not have been viewed in the same way. Here, there is no increase at all. In fact there is a decrease. 
[142]	The extent of the conflict with the gross floor area limits in the intent for the Low Density Residential Area is substantial. However, it is substantial as a direct result of the existing building being reused. In my view, the reuse of the building is a sensible, practical and appropriate outcome. It is a far more appropriate outcome than the demolition of structurally sound buildings – even if such could be required; which it cannot be.
Traffic Engineering Considerations
[143]	The appellants do not advance any traffic engineering grounds as being sufficient to warrant refusal of the application. They do identify three issues which are relevant to the proposal’s assessment. They identify these issues as being the manifestation of the overdevelopment of the site; it being of insufficient size to contain the impacts of development as contemplated by the planning scheme.
[144]	The first of the identified traffic issues is an alleged conflict with Performance Criterion P9 of the TAPS Code because the proposal does not provide for onsite servicing. There are a number of separate aspects to this issue. 
[145]	The proposal provides for on street refuse collection on Southerden Avenue. Mr Viney, the traffic engineer called by the appellants, was of the view that an area needed to be set aside onsite for refuse collection. He considered that this was not only what is required by the TAPS Code, but accorded with usual practice. On the other hand, Mr Pekol, the expert called by Butterfield, was of the view that the proposed arrangements were consistent with waste collection which would have occurred when an aged care facility was operated on the site. Further, he considered the plan to use 3 to 4 bulk bins would minimise the time taken to collect waste. 
[146]	Whilst Mr Pekol was also of the view that off-site refuse collection was consistent with Council’s Subdivision and Development Guidelines for Refuse Collection,   he conceded in cross-examination that in terms of Performance Criterion P9 on street refuse collection failed to contain potential adverse impacts of servicing within the site and resulted in that servicing not being located so as to discourage on street loading. 
[147]	Mr Beard, called by the Council, considered the arrangement not ideal, but not unacceptable. Mr Pekol and Mr Beard agreed that a condition could be imposed limiting the times during which waste collection could be performed; they suggested between 7am and 5pm Monday to Friday.
[148]	A similar issue exists in relation to the provision to be made for servicing by large rigid vehicles (LRV’s) such as furniture removal trucks. All the traffic engineers recognised the desirability of having onsite LRV accommodation. Mr Pekol and Mr Beard shared an acceptance that this would be difficult to achieve whilst retaining the existing building. Mr Viney considered that this would have been achievable by using currently existing vacant ground with access off Gawler Street, but that this vacant land had been subsumed into the new structure.
[149]	Mr Pekol’s plans identify two preferred positions for LRV servicing, being the same location as for refuse servicing, or a location on Days Road immediately in front of an existing bus stop. A third location was included onsite at the suggestion of Mr Viney. It would require a second access to be constructed off Gawler Street and could be achieved with the loss of only one onsite car parking space. Even with the loss of that space, the minimum requirements for car parking would be met. 
[150]	Notwithstanding that Mr Pekol expresses a preference for the Southerden Avenue location, he recognises the added benefit that the onsite location would provide of being able to be used for refuse collection as well. Mr Pekol also expresses a preference for the Southerden Avenue location over the Days Road location because it would not impact the operation of the Days Road bus stop.
[151]	In my view, the identification of the potential for impact upon the existing bus stop militates against the Days Road location being preferred. However, I am of the view that the onsite location is achievable and preferable to the Southerden Avenue location. It would see both LRV and refuse servicing contained within the site. That must be beneficial to the amenity of the area, particularly on Southerden Avenue itself. When the onsite collection is also achieved, Butterfield’s objection to a requirement for onsite accommodation because it is unrealistic, unnecessary and unreasonable in light of the infrequency of LRV visits falls away. It is also somewhat inaccurate for Butterfield to say that it was not supported by Mr Beard. Mr Beard’s position was that he considered each of the proposed locations satisfactory.
[152]	Onsite location would remove the conflict with the TAPS Code; Performance Criterion 9 would be met.
[153]	Approval of the development should be conditioned upon refuse and LRV servicing being provided onsite in accordance with position C on Drawing SK005 in exhibit 8.
[154]	The second traffic engineering issue which the appellants raise concerns the width of 8 car parking spaces adjacent to walls along the southern wall of the lower ground floor. Those spaces do not comply with the Australian Standards; they are 2.59m wide, 11cm narrower than the required 2.7m. The TAPS Code is more onerous. Table 16 to the TAPS Code, which is called up as an acceptable solution to the relevant performance criterion,  requires the spaces to be 2.9m wide when adjacent to walls. The 8 spaces are therefore 31cm narrower than this requirement. The appellants submit that the failure to meet these requirements is a consequence of the proposed development being of a scale and density too intense for the existing site.
[155]	Butterfield takes issue with the appellants’ interest in this design issue; it being a matter which will affect only residents and their visitors, and it being agreed by the experts that it would have no off site impacts. However, it is, in my view, legitimate for opponents of development to identify deficiencies in design, particularly if it is conflict with the planning scheme, even if it may be said that those particular deficiencies will not have any impact upon them or upon the amenity of the area. It may be that it is only those who oppose the development who will draw attention to such deficiencies.
[156]	The difficulties associated with the narrowness of the car parking spaces goes beyond matters of mere convenience for the residents. The evidence established that there may be the need for a vehicle to stop in the driveway to load after exiting, or to unload before entering, a parking bay. This requirement, potentially, raises safety considerations. It might involve young children having to stand in the car parking area, unattended, whilst the vehicle is manoeuvred in or out of the parking bay. 
[157]	Such safety concerns are greater than those about residents’ vehicles may sustain some damage as a consequence of the car parking spaces being narrower than required under the TAPS Code or the Australian Standard. They would not, however, cause me to either refuse the proposed development or to require the reconfiguration of the carpark. The conflict with the planning scheme is very much at the lower end. 
[158]	It is appropriate, though, that a condition of approval be that appropriate signage be placed in the carpark warning the drivers of vehicles travelling in either direction of the possibility of children in the area and requiring the exercise of caution.
[159]	The third traffic engineering issue concerns vision and a proposed one way curved circular aisle in the area of the carpark near the body corporate office. A walkway leads into the car parking area with the body corporate office on the left hand side as one approaches the carpark. Visibility for pedestrians entering the carpark is to be improved by providing 1m x 1m sight splays at the carpark end of the walkway as depicted in Drawing SK003 to the Second Joint Traffic Engineering Report.
[160]	A more complex issue concerns the one way circulation aisle itself. Mr Pekol considered a one way aisle was acceptable. This view was not shared by Mr Beard or Mr Viney, both of whom considered that an acceptable solution could be achieved by removing and re-positioning some existing columns and relocating the electrical plant room. This would permit a second narrow aisle to be developed. Butterfield concedes that this would be achievable at a cost.
[161]	In my view, the solution offered by redeveloping that area of the carpark in accordance with SK004 is highly desirable and would add considerably to safety. Much more so than the inclusion of a “No Parking. Manoeuvring Only” bay as proposed by Mr Pekol. The approval of the development should be conditioned upon the remodelling of the carpark area in accordance with SK004.
Sufficient Grounds
[162]	I do not consider the substantial conflict with the gross floor area limits in the intent for the Low Density Residential Area to warrant the refusal of the proposed development. There are, in my view, sufficient town planning grounds upon which the development should be approved. Those grounds have been identified above in the discussion of the various objections of the appellants to the development. They may be summarised as being that the conflict identified is a function of the existing, structurally sound built form on the site, the reuse of which in the manner proposed is appropriate. Its reuse will not adversely impact upon the amenity of the area, and will in fact make improvements to that amenity. Its reuse as multi dwelling units is a use contemplated by both City Plan 2000 and City Plan 2014. It will provide housing diversity in the area which will also facilitate the potential for residents of Grange to remain in their neighbourhood throughout their lives. In my view, again for the reasons set out, the grounds for approval set out in exhibit 4 have been established by the co-respondent. 
[163]	In terms of the qualities which must be demonstrated by generally inappropriate impact assessable development, for the reasons set out above, I am of the view that its character, location, sighting, bulk, scale, shape, size, height, density, design and external appearance do accord with the reasonable expectations and DEOs for the area in which the land is classified.  Furthermore, the proposal will have a positive impact on the landscape, scenic quality and streetscape of the locality.  On all the evidence it will present as a more attractive and less intrusive structure than either its present dilapidated form or the form which it took when operating as an aged care facility.
[164]	It is not to the point, when considering whether there are sufficient grounds to justify the approval of the application notwithstanding conflict, that a proposal for a building which complied with the criteria set out in the City Plan would also achieve those grounds.  In my view, in considering whether there are sufficient grounds to approve the particular development proposal one ought not be distracted into considering whether there may be other developments which, if proposed, would also achieve the outcomes identified as grounds justifying approval, but without the conflict with the planning scheme.  To be distracted in that way would, in my view, invert the reasoning process.  One would no longer be considering those outcomes as sufficient grounds for approval, notwithstanding conflict, because there would be no conflict in the first place.  The identified matters would simply be desirable positive outcomes flowing from a compliant development.
[165]	Therefore, there are sufficient planning grounds to justify the approval of the application notwithstanding its conflict with the Planning Scheme. 
Disposition
[166]	The appeal will be refused and the development application will be approved with conditions as identified in these reasons. 
[167]	The further hearing of the appeal will be adjourned to allow conditions of approval to be formulated.