Altitude Corporation Pty Ltd v Isaac Regional Council
[2014] QPEC 15
•1 APRIL 2014
[2014] QPEC 15
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
P & E Appeal No 3576 of 2013
ALTITUDE CORPORATION PTY LTD Appellant
and
ISAAC REGIONAL COUNCIL Respondent
BRISBANE
4.14 PM, TUESDAY, 1 APRIL 2014
JUDGMENT
CATCHWORDS:
Planning and Environment – appeal against council’s decision to refuse a development application for a material change of use to permit a development of multiple dwellings – whether conflict with planning scheme arising from overdevelopment – whether insufficient area for landscaping – whether garage and parking areas dominated street frontage in conflict with planning scheme – whether increased traffic volume would result in adverse amenity impacts – whether sufficient grounds to approve
COUNSEL:
SOLICITORS:
C Hughes QC and M Batty (appellant)
M Williamson (respondent)
McDonald Balanda & Associates (appellant)
King & Company Solicitors (respondent)
HIS HONOUR: This applicant appeal is against the respondent’s refusal of an application for a development approval for a material change of use to permit the development of multiple dwellings on land situated at Mills Avenue, Moranbah. The town of Moranbah was established in 1971 as a mining town and has grown into a community which provides local and district level services. With a population of appropriate 8530 people, it is a significant centre within the region and has the largest population in the subregion.
The subject site is a relatively long and narrow strip of land, located about two kilometres east of the town centre. It has a north/south axis of about 750 metres, which extends from a 40 metre frontage to Mills Avenue, at its northern end to a larger triangular shaped area at its southern end. At about its midpoint, the land is also traversed by an extension of Nonette Street. The site area is about 3.7 hectares.
To the immediate east of the site lies a transmission line easement. Development in the surrounding area otherwise, is generally for residential purposes, in a range of forms and at a range of densities. The western boundary of the site adjoins the rear of residential allotments which front Schifcofske Drive. Those allotments are at the eastern extremity of the Central Highlands Estate, which is an older estate featuring mainly ordinary detached housing on conventional sized allotments. The housing in Schifcofske Drive is generally orientated away from the subject site, so as to front Schifcofske Drive. There is a solid fence which is along the boundary between those houses, and the subject site. The ground level of the development on the subject site will be at a lower elevation than the properties in Schifcofske Drive once the estate is built. In a real sense, the development in Schifcofske Drive turns its back on the subject site.
East of the power line easement lies an extensive and ongoing residential development known as the Isaac Views Estate. Stages 1 to 5 of that development have been completed. Stage 6 is underway with stage 7 to follow. The estate features a range of dwelling types, including multiple dwellings. The density in stage 6 and that likely in stage 7 is markedly greater than in the case of the Central Highlands Estate. The architectural style of buildings in the Isaac Views Estate is unattractive and repetitive. Landscaping is sparse.
Across Mills Avenue to the north lies other contemporary residential medium-density development featuring a range of dwelling types. The development is centred on Barron Court, the development in which was designed, but not constructed, by the appellant. The level of architecture is significantly higher than what one sees generally in the Isaac Views Estate, but the landscaping is also sparse. The newly developing areas to which I refer fell within the jurisdiction of EDQ.
The subject site, falling between a long established residential estate to the west and newly developing residential areas to both the east and north, from which it is separated by a power line easement and Mills Avenue respectively, presents as an obvious potential infill development opportunity. That is particularly so given its inclusion in the urban zone under the relevant Planning Scheme.
There is an existing permit to re-configure the land to create 28 residential allotments plus areas to be dedicated for park. The appellant’s application for that permit was initially refused by the Council but was approved on appeal by this Court, see [2010] QPEC 127. At that time, the development intended for the proposed new lots was detached houses. An operational works approval was also obtained. The appellant has not acted on either of those approvals and the current approval which it seeks is not reliant on either of them.
What the appellant now seeks is an approval to develop 28 buildings of attached houses yielding a total of 103 dwelling units on the subject site. The proposed buildings have similarities, but there are to be eight different types, which variously are composed of between two and four double storeyed, three bedroom, single garage attached houses. The architectural expression varies across the eight building types, and each type includes treatments including variations in colour, texture and fenestration as well as in set backs and alignment to the street. Extensive landscaping is also proposed.
The multiple dwellings are to be accessed from a new public road off Mills Avenue and from Nonette Street, which would intersect with that new road. The multiple dwellings are to be located exclusively on the western side of that road. Habitable rooms will be set back a minimum of 20 metres from the transmission line corridor to the east. That results in a greater than usual set back of generally about 10 metres, between the buildings and the proposed new road. The area between the proposed buildings and the proposed new road would feature landscaped areas together with driveways. Many of the driveways are to be shared, such that the number of crossover points onto the new public road is significantly fewer than the number of attached houses.
The new public road is to end in a cul de sac. There are to be two driveway crossovers at the head of the cul de sac, which ultimately will provide access to five buildings containing 17 attached houses in the larger triangular-shaped part of the site towards its southern end. There are to be two public park areas together with an area of communal open space, the latter of which is to be located on the north-western corner of the Nonette Street intersection with the proposed new road.
The issues in the appeal are contained in the respondent’s amended consolidated list of issues and may be summarised as: (1) conflict with the Planning Scheme arising from alleged overdevelopment of the site, insufficient area to provide for planting and the generation of traffic volumes in Nonette Street, which would adversely affect amenity, (2) insufficiency of grounds to justify approval notwithstanding conflict.
It was the respondent’s position at the commencement of the hearing that there were also traffic engineering issues which would warrant refusal of the application. Those issues were ultimately resolved during the course of the evidence, subject to the imposition of appropriate conditions of approval. Those conditions would include a condition as to minimum four-metre wide driveways in locations indicated by the expert traffic engineers.
The Department of Transport and Main Roads was a concurrence agency for the proposed development. The Department notified the respondent that it was of the view that the proposed development could be approved subject to conditions. The appellant does not oppose those conditions. Similarly, Powerlink was an advice agency for the proposed development. Powerlink also requested certain conditions attached to any approval, and the appellant does not oppose those conditions either.
The development application was made during the currency of the Sustainable Planning Act. Being a code assessable application, it is to be assessed having regard to section 313(2), (3) of the SPA and decided in accordance with sections 324 and 326. Section 326 provides that an assessment manager’s decision must not conflict with a relevant instrument unless there are sufficient grounds to justify the decision. A relevant instrument includes a planning scheme. Under section 493(1) of SPA, the appellant bears the onus of establishing that the allotment application ought to be approved and that this appeal should be allowed.
Before descending to the detail of the provisions of the Planning Scheme with which the Council contends there is conflict, it may be noted that, in general terms, further residential development, including by way of multiple dwellings, is anticipated and encouraged within the urban area of Moranbah. The Mackay, Isaac and Whitsunday Regional Plan took effect on 8 February 2012 and seeks to provide the framework in which growth, change, land use and development will occur in the region. Page 28 of the Regional Plan, under the section “Regional Narrative”, provides principles relevant to the proposed development of the town or Moranbah. The document states in part:
The majority of Isaac’s population growth to 2031 will be accommodated in Moranbah due to the availability of employment opportunities and increasing levels of urban services and infrastructure…
Moranbah has the potential to expand its role in the mining industry through continued mining exploration, development, processing and other value-adding activities. The growth of the town relies heavily on the availability and affordability of residential and industrial land, and the continued viability of the mining sector, including the availability of skilled employees for the broad community...
Moranbah also has the capacity to accommodate a significant proportion of growth through infill development. Appropriate locations for infill should be identified and subsequent planning undertaken to accommodate a range of housing types. High densities should be located within close proximity to the established town centre.
Under the heading “Residential” it provides, in part, as follows:
Housing affordability has become an issue across the subregion, particularly at Moranbah…This is due to the limited availability of unconstrained land, lack of housing choice and very strong demand for housing…
A range of housing options assists in attracting long-term residents and building sustainable communities. Ensuring a range of housing options (e.g. non-resident worker accommodation, townhouses and low-density dwellings) provides the community with housing diversity…
To achieve affordable housing across the subregion, an adequate supply of land must be available to accommodate a wide range of lot sizes and dwelling types. Consideration can be given to residential densities of 30 to 60 people per hectare in some communities such as Moranbah…to further alleviate market supply pressures.
For its part, the Planning Scheme, in the Community Wellbeing Desired Environmental Outcome, notes that Moranbah is characterised by a “strong and growing permanent resident population”. The strategies in support of that DEO include that:
Increased opportunities are created for a larger proportion of the mining (and related) workforce and their families to permanently reside in the Shire’s towns through:
- the designation of sufficient urban land to accommodate expected population growth,
- the encouragement of medium density, small lot and other forms of permanent housing to increase housing choices available within the Shire’s towns; and
- limitations on the size of accommodation facilities for non resident workers.
The Urban Zone accommodates a range of residential activities and community oriented activities, within which:
…A mix of “dwelling units” which provide for permanent accommodation is predominant.
The Planning Scheme includes certain land, including undeveloped land, in the Urban Zone. That zone applies to the subject site. The proposal is for three bedroom townhouses of a kind which could be expected to be appropriate for permanent accommodation. Much of the existing development within Moranbah is of a single detached dwelling house kind. The proposal would provide further medium density stock to increase the housing choices available. There are no separate zones for detached houses on the one hand and multi-unit developments on the other. Both forms are accommodated within the Urban Zone.
It has already been noted that the development application is code assessable. The relevant applicable code is the Urban Zone Code which consists of a statement of purpose and a table of performance criteria and corresponding acceptable solutions. The planning scheme provides that:
For assessable development - code assessment:
(i)the code is the purpose, performance criteria and acceptable solutions; and
(ii)acceptable solutions are probable solutions and are one way of achieving compliance with the performance criteria;
(iii)an acceptable solution for a performance criterion provides a guide for achieving that criterion in whole or in part and does not limit the assessment manager’s discretion under the IPA to impose conditions on a development approval.
The Council raises no issue with the proposal’s compliance with the vast majority of the performance criteria. Ultimately, conflict was alleged with just four; namely PCs 5, 16, 18 and 30. It may be noted that, while asserting that the proposal represents overdevelopment, there was acceptance that it meets, and in some cases very comfortably meets, the measurable acceptable solutions in relation to matters such as site cover, open space provision, building set backs (subject to one minor and uncontroversial aspect) and height. Non-compliance with some or all of those provisions is often regarded as a potential sign of overdevelopment. That is not the case here. The provisions relied upon by the Council are more qualitative in terms of their requirements.
PC30 relates to the provision of vegetated buffers to an electricity transmission line easement. In particular, the performance criteria provides as follows:
Vegetated buffers adjoining an “electricity transmission line easement” are maintained to provide:
(a) a visual buffer to the easement; and
(b) a separation distance from the easement.
It has already been observed that the proposal is to set back the habitable rooms of buildings by 20 metres from the easement. Within that 20 metres, there will, of course, be some hardstand areas, particularly by way of driveways and the new road however, there are also significant areas which can support planting in order to replace trees which will be lost in implementing the development and to provide other new plantings. The proposal of the appellant in this regard is to:
(a)preserve, as far as practical (having regard to the development), as many of the existing trees as are suitable for preservation (that is other than those dead, dying or otherwise unsuitable trees);
(b)to plant three trees for every tree removed (other than dead, dying or otherwise unsuitable trees);
(c)to plant at least 336 trees (calculated as three trees for each tree removed, based on a total of 112 trees which may be removed);
(d)the inclusion on a detailed landscape management plan of a notation of:
(i)the existing trees to be removed (including the dead, dying or otherwise unsuitable trees);
(ii) the existing trees to be retained;
(iii) general location of the 336 new trees to be planted.
In the course of his evidence Mr Bishop, an expert in arboricultural and landscape issues called by the respondent, conceded that suitable landscaping could be achieved. He raised doubts however, as to whether the appellant would be able to plant as many trees as it was offering to be obligated to do. He pointed to a range of issues which might potentially create issues with respect to tree planting, survival and growth. As Mr O’Brien, the expert called by the appellant, pointed out however, the issues which were raised by Mr Bishop are those which are commonly encountered and managed in the process of achieving appropriate landscaping on a development site.
Whilst the appellant was criticised for not producing a more detailed plan to establish, with absolute certainty, where the retained trees are, where the new trees will be planted and to demonstrate that such planting is feasible in all respects, it must be remembered, as Mr O’Brien pointed out, that the final detailed landscaping plan necessarily involves interaction with those responsible for the engineering works on the site and is best addressed at the operational works stage. Mr O’Brien’s evidence was that the locations for the new trees shown on the plans that were produced had been chosen having regard to the location of trees likely to be retained. Whilst he has not done the detailed landscaping plan for the subject proposal, he was confident that the issues to which Mr Bishop referred would be manageable without sacrificing achievement of the plantings which had been offered by the appellant.
On balance, I am satisfied that it is more likely than not that the plantings that have been offered will be able to be implemented. I have already noted that, in any event, even with his misgivings, Mr Bishop concedes that appropriate landscaping can be achieved, even if the exact number of trees offered cannot be achieved. In the circumstances, I think that this is a matter which can be left to the formulation of conditions to be imposed on any approval. And, if necessary, there can be further consultation between the landscape experts to formulate an appropriate proposal in that regard prior to any approval being finalised. I do not consider that there is conflict between the proposal and PC30.
PC18 relates to garages and car parks. The performance criteria and corresponding acceptable solutions are as follows:
| PC18 Garages and car parts | For “multiple dwellings”: (a) are located a minimum of 1m behind the main building line; and (b) have a maximum internal width of 6m or 50% of the frontage width of the dwelling unit to which they relate, whichever is the less. |
The proposal does not adopt the acceptable solution. The garages are not located a minimum of one metre behind the main building line. Indeed, they are generally in front of that line. Further, there are two building types which do not comply with subparagraph (b). The court is therefore called upon to consider whether the performance criterion is nevertheless met. In considering that, I was urged, by counsel on behalf of the respondent, to have regard for the fact that, far from adopting the acceptable solution, the proposal does the opposite, in terms of pushing the garages forward. That is a relevant consideration to bear in mind however, there are other aspects which, in this case, have the effect that the garage and parking structures or areas do not dominate the street frontage.
The phenomena of domination is common enough. One example is where one has a single storey house with a double garage on, or very close to, the street frontage with a front fence either side. In such circumstances, often one can see very little other than the front fence and a large garage dominating the street frontage. Whilst that is not the test against which acceptability must be assessed, it is an illustration of the type of undesirable effect to which provisions of this kind are directed.
In this case, there are a number of factors which combine to guard against a dominating effect of the garage and parking areas. Firstly, the multiple dwelling buildings are set back to a greater extent than is usual from the street frontage itself. At around 10 metres, they are some seven metres back from the set back that would otherwise be required. So the garages are certainly not as physically proximate to the street frontage. I appreciate that the driveway provides a parking area, but it is not enclosed and does not have a carport. It is simply a driveway. Further, any vehicle pulling up on the driveway is immediately in front of the garage itself and so does not increase the width of the area taken up by the garage and parking area.
Secondly, the multiple dwelling buildings are all two storey, with a substantial part of the façade at the second storey level. This means that the garage occupies a lesser proportion of the building façade than would be the case in a single level building of the same width.
Thirdly, only a single garage is provided to each dwelling unit.
Fourthly, there is proposed to be substantial landscaping in the areas between the building façade and the street frontage.
The architect for the proposal also pointed out that he had treated the façades of the building in a way which he thought minimised any potential for dominance. Ms Roughan, the town planner who was called by the council rather thought that those design elements tended to exacerbate the situation. On the site inspection, I was taken to the development in Barron Court which incorporates some of the same design features, so that I could better understand the evidence. It seems to me that the design features certainly do not exacerbate the situation.
The overall effect of the factors to which I have referred to are such that I am satisfied that the garage and parking areas are sited and designed in a way that they do not dominate the street frontage. And so there is no conflict with PC18.
PC5 relates to transport movements. It provides as follows:
Transport movements associated with the “use” protect the residential amenity of the locality and do not exceed those normally associated with “residential activities” in this locality.
There is an acceptable solution provided for non-residential activities but no acceptable solution for residential activities. Counsel for the respondent rightly conceded that the reference to residential amenity being protected should be read not as requiring an absolute protection, but an acceptable or reasonable level of protection. That is consistent with the approach of this court to similar provisions in many other cases.
The concern in relation to residential amenity was in relation to the existing residents of Nonette Street. It was pointed out that, whilst those residents would reasonably expect that the subject site could at least be developed for detached housing as contemplated by the previous approval, they should not necessarily expect a multiple dwelling development, since the acceptability of such development on any particular site is subject to qualifications and code assessment under the planning scheme. It was pointed out that the subject proposal would generate traffic movements which are multiples of the traffic movements which would be generated by detached housing development.
That may be true, but the proposal would not result in multiples of the total traffic experienced in Nonette Street. That street, of course, carries some existing traffic volume, the extent of which is unknown, since there was no count taken of that. What is known, however, is that there is a substantial volume to be generated from the urban zone which lies to the east of the existing residents of Nonette Street and which would be expected to filter substantial traffic volumes into Nonette Street as development is achieved. This includes not only the subject site, but, of course, the Isaac Views Estate. It was common ground amongst the traffic engineers that the contribution of the subject site to ultimate traffic volumes in Nonette Street is likely only to be in the order of 10 per cent.
There was some dispute about whether the ultimate traffic volumes on Nonette Street would be expected to exceed the guideline for environmental capacity in reference documents. However, as Mr Williams conceded, that is something of a nominal figure, rather than a precise test on what is acceptable and unacceptable in amenity terms.
It seems to me that the reasonable expectation of existing residents on Nonette Street is that traffic volumes in their street will be substantially increased over time as a result of residential development of the urban zone area. The contribution of the subject development to that traffic volume is low and I do not consider that it would have any significant undue impact. And in particular, I do not think that the transport movements associated with the use fail to protect residential amenity of locality or exceed those normally associated with residential activities in the locality. There will, as I say, be only a modest increase in movements and those movements will be associated with the proposed residential activity, which is an activity which, whilst
not guaranteed to be acceptable on every parcel of land within the Urban zone, is certainly an activity which is expected to be able to be located within the Urban zone on appropriate sites.
The final performance criterion with which there was said to be conflict is PC16, for which there is no acceptable solution specified. The performance criterion relates to streetscape and landscaping and provides as follows:
The street, building and landscape design achieves:
(a) Scale, form and materials which are consistent with the character of surrounding development, and add visual interest and allow differentiation between dwelling or accommodation units when viewed from the street;
(b)the creation of residential environments with clear character and identity;
(c)optimisation of such features on the site as views, vistas, existing vegetation and landmarks;
(d)environments which discourage anti social behaviour and promote safety; and
(e)sufficient open space to complement the landscape character of the neighbourhood.
It was not suggested by the respondent that the proposal fails to meet (b) to (e) inclusive. The only part of the performance criterion in issue was subparagraph (a). It might be mentioned, in this context, that the appellant also relied on other provisions of the planning scheme which, whilst not limited in their implementation to PC16, are more closely related to this PC than perhaps to others that were relied upon by the respondent in this case. The other provisions include section 3.3(2)(d) of the strategies in support of the Community Wellbeing DEO, which provides:
All forms of “residential activities” (including accommodation intended for visitors and temporary residents) are required to be designed to integrate with the surrounding urban environment and to be of a high quality urban design.
Reliance was also placed on the following provisions of the Purpose of the Urban Zone Code:
(3) Within the Urban “Zone”, the “development”:
…
(b) is located designed and operated in a manner that is consistent with the surrounding residential scale, form, character and amenity.
…
(4) Within the Urban “Zone”, the following are appropriate “uses”:
…(c) “accommodation building”, “bed and breakfast premises”, “caravan or relocatable home park” or “multiple dwelling” where they:
– are of a scale, form and character that is consistent with surrounding development;
– are suitably integrated with the surrounding locality and designed to promote connectivity to the wider community;
– promote a high level of residential amenity and safety within and external to the site.
Before descending to the issue of whether the scale, form and materials of the proposal are consistent with the character of the surrounding development, I will first deal with the issues of integration and whether the urban design is high quality and whether it’s consistent with the promotion of a high level of residential amenity and safety within and external to the site.
Insofar as amenity is concerned, it was not suggested that the proposal would have any “hard” amenity impacts of any significance. The only hard amenity impact suggested was related to the increase of traffic in Nonette Street, with which I have already dealt. I am satisfied that the proposal promotes a high level of residential amenity and safety.
Whilst there was criticism of the quality of the urban design outcome which would be associated with the proposal, I am satisfied, on a combination of the evidence of Mr O’Brien, Mr Cumming and Mr Venn that the proposal satisfies that description.
Insofar as integration is concerned, there could be no legitimate criticism of the level of physical integration which is proposed. The nature, location, and configuration of the site is such that there are limited opportunities for physical integration. Nevertheless, the development is to be integrated into the surrounding locality by the construction of a new public road, which will give access to Mills Avenue and also via the connection to Nonette Street. This will assist connectivity to the wider community.
Returning then to the to the specific terms of PC16(a), it will be noted that the PC relates not just to the built form, but to the street, building and landscape design. In that context, it requires the scale, form and materials to:
– be consistent with the character of the surrounding development;
– to add visual interest;
– to allow differentiation between dwelling or accommodation units when viewed from the street.
Ms Roughan, the planner who was called by the Council, was somewhat critical of the design of the proposal and the similarity of its built form. I am satisfied,
however, that what the appellant proposes is, to adopt the description in the written outline for the appellant:
... a high quality townhouse product where architectural forms have been carefully thought out to create variety, visual interest, human scale and depth through the composition and detailing of the exterior envelope. The proposed development has been designed to have articulation including overhangs and building projections to provide shading of exterior walls to improve the thermal performance of the building and to provide deep shadow on the exterior for articulation. Further, a variety of materials and colours are proposed.
Not only has the development achieved a relatively high quality of design, but it has, relevant to PC16, by the number of different building forms and the distinguishing features between them, achieved both visual interest and differentiation in the likely presentation when viewed from the street.
Perhaps the issue which most explains the difference between Ms Roughan on one hand and Mr Venn on the other, relates to the issue of consistency with the character of the surrounding development.
Ms Roughan saw the development, by reason of the scale and form of the built form and also by reason of the extent of the landscaping, as being out of character with the surrounding development. I will deal firstly with the issue of landscaping.
It is undeniable that what is proposed by way of landscaping with the subject proposal is more extensive than what will be found in the existing development in the surrounding area. As Mr O’Brien said in his trial report (exhibit 7):
In visual and landscape terms the proposal will represent a far better outcome than what presently exists on the site where there is a relatively sparse and in part unhealthy stand of trees in front of the 5 to 6ft high continuous colour bond fence lying along most of the length of the western boundary of the site. Here, the development proposes not only visually interesting modern townhouses, but landscaping which will rival and probably exceed any streetscape landscaping in the suburbs of Moranbah.
I have already noted that the landscaping in the area of Barron Court and the Isaac Views Estate is sparse.
In looking at the subject site, however, it is necessary to bear in mind its atypical context. In particular, the site adjoins the electricity transmission line easement. By reason of PC30, there is an obligation for sites in that context to provide a visual buffer to the easement. That is most likely to be done by way of landscaping. Indeed, in the context of the operational works approval previously given to the appellant, in respect of the earlier reconfiguration approval, the Council approved a landscaping plan, which contained significant vegetation.
Given the positive obligation to provide a vegetated buffer, it is surprising, then, that the Council would assert that, in providing a effective and substantial buffer to comply with PC30, the applicant was unacceptably falling foul of PC13, by reason of the generally substandard landscaping which is otherwise seen in the locality. Further, the extent to which the proposal, in terms of its landscaping, is out of character with the surrounding development, is by reason of the fact that it would provide a quality, standard and effect which is superior to the efforts which are seen in other nearby development.
In the circumstances, it seems to me, therefore, that, if the landscaping is the source of conflict with PC16, then the particular context of the site and the fact that any inconsistency is an inconsistency which will bring a benefit to the area, by raising the standard, provides sufficient grounds for approval, notwithstanding the conflict.
Moving, then, to the scale, form and materials of the built form. In this regard, it is not so much the materials but the scale and form of the development which is in issue. In looking at this issue, one again needs to have regard to the atypical context of the site. The site fronts the power line easement, rather than any conventional form of development. While it has a visual connection with the Isaac Views Estate further to the East, that estate is, as Ms Roughan pointed out, separated from the proposal by distance. Similarly, whilst at least the northern parts of the subject site have a visual connection with the Barron Court development, it is separated by Mills Avenue.
The site does adjoin the Schifcofske Drive residences, but has no effective relationship with the development in that street. As has already been observed, the development in that street turns its back on the subject proposal and is visually obstructed by a relatively continuous solid fence. Whilst Ms Roughan put a high degree of weight upon what she saw as the inconsistency between development of the proposal of the subject site and the residences in Schifcofske Drive, it seems to me, for the reasons which I have given, that she placed too high a weight on the development in that particular part of the locality.
When one then looks at the situation of the subject site in context, it is immediately evident that this site is, to a large extent, separated, if not isolated, from surrounding residential development by a variety of the electricity easement, Mills Avenue and by the orientation of the Schifcofske Drive residences and the fencing at the rear. The site does not, therefore, have a strong relationship with other residential development in the surrounding area. That is not to say that the surrounding development should be ignored, but one must recognise that the relationship between this site and that development is nowhere near as strong as it would be, for example, if the site was in the middle of one of the other estates.
Further, the configuration of the site is such that, if it is ever to be developed for residential purposes, whether for detached houses or attached houses, it is necessarily going to support an elongated development pattern, because of the elongated nature of the site. The only practical development solution to the site is to propose, as the appellant has done not only in this case but in its previous development proposal, for a new road to be constructed proximate to the electricity easement and for
development to be contained on one side of the road only. Therefore, almost inevitably, the development of the site, consistently with the zoning is going to result in an elongated development form of housing, of whatever kind, on one side of the road.
When looking at the context of the surrounding area, it must be acknowledged that there is no single development form which is uniform in the area. The Schifcofske Drive residences are predominantly older detached dwelling style development and stand in stark contrast to the type of development that one sees in the Isaac Views Estate. It is impractical to suggest that the development on this site should attempt to mirror all other development in the surrounding area, when that development itself is so mixed and where the context of those estates is different.
Accordingly, it is really no surprise that the development on this site is, at some levels, different from what one sees in the locality. It will be, and of necessity will be, an elongated residential development, fronting one side of the new access road with significant landscaping not otherwise prevalent in the locality, in order to provide the vegetated buffer which is required by the planning scheme. To the extent that difference is said to create some tension or conflict with the performance criteria, in my view, the particular context of the site, together with the merits of the proposal otherwise, provide a sufficient ground to approve, notwithstanding conflict.
A particular matter of complaint by Ms Roughan was that the proposal is to be exclusively for multi-unit development, rather than for a mix of building types.
It was pointed out that, when one looks at other components of the surrounding area, one finds a mixture. That is undeniably so, but there is nothing in the planning scheme which expressly requires that a mixture of housing types is to be achieved in each and every individual development within the urban zone or within a particular surrounding area.
It seems to me that, when one looks at the surrounding area, insofar as it consists of residential development, it consists of a range of different residential forms and densities. The proposal will simply add to that mix by providing a further component of multi-unit development. In the context of that mixed character, it seems to me that the proposal can be said to be consistent in the relevant sense. It adds to the mix, albeit that it does not contain a mix within the development itself.
Even had I concluded, however, that there was a relevant inconsistency by reason of the failure to provide for a mix within the development, then I would have concluded that there were sufficient grounds to warrant approval, notwithstanding conflict. In that regard, the consequence of the non-compliance would be found to be minor, given what I have already said about the particular and atypical context of the site and the extent to which it lacks a strong relationship with the surrounding development. Set against that is the considerable merit in the proposal otherwise in achieving a high degree of compliance with the planning scheme provisions otherwise and in responding to its context by proposing high quality landscaping and urban built form. It does so whilst providing additional housing stock of a kind which is promoted, in a general sense, within the urban areas of Moranbah. It does so in a way which will add to the mix of housing types available within Moranbah more
generally. It does so by providing a higher than standard density of residential development in a location which is reasonably proximate to the town centre in an in-fill location which takes advantage of existing infrastructure and contributes to a compact urban form.
It would also do so whilst avoiding any undue amenity impacts, whilst providing an improvement in visual and landscape terms, both on the presentation of the site as it exists at the minute and when compared with other development in the locality more generally. It will also provide casual surveillance opportunities and contribute a modest amount of additional open space and parkland for the community.
I am not persuaded that the proposal amounts to an over-development of the site. It is development which will provide a useful and efficient use of the site, the advantages of which I have referred to, whilst providing a good standard of internal amenity and no unacceptable effects on external amenity. I have already noted that the appellant has relied upon the extent to which the development is well within the measurable development standards in the relevant code.
It was asserted by the respondent that the fact that the communal open space, adjacent to Nonette Street, is to accommodate not only communal facilities but detention basins and a sewer pump station was an indication of over-development. I do not agree. The sewer pump station is a very modest piece of equipment which is easily landscaped. The grassed areas which serve as detention basins are not inappropriate for use. That is particularly so in relation to the shallower of the two but, in any event, the use of even the deeper one is not something which is unique to this development. The ability to use open space areas for detention purposes is common enough and does not, in my view, indicate over-development.
Moreover, the proposal is for a use of a kind which is anticipated within the relevant zone, subject to qualifications and to code assessment. A fair-minded assessment against the relevant code reveals a very high level of compliance, if not full compliance. To the extent to which there is arguable conflict, for the reasons I have indicated, it seems to me that there are sufficient grounds for approval, notwithstanding the conflict. The result will be the delivery of development which is of a high quality, which will be landscaped to a high quality and which will have the benefits which I have otherwise indicated. The appeal will be allowed in due course, subject to the preparation by the parties of appropriate conditions of approval, and I will hear from the parties in that regard.
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