Baker v Mackay Regional Council
[2014] QPEC 53
•27 AUGUST 2014
[2014] QPEC 53
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
P & E No 31 of 2013
HELEN HALYNA BAKER and ANOTHER Appellants
and
MACKAY REGIONAL COUNCIL Respondent
MACKAY
12.31 PM, WEDNESDAY, 27 AUGUST 2014
JUDGMENT
HIS HONOUR: This is an applicant appeal against the respondent’s refusal of a development application for a development permit for a reconfiguration of one lot into three in respect of land located at 26 Rural View Drive, Mackay. The development application was code assessable.
As a consequence of the Court’s expert joint meeting and reporting regime, the engineering/infrastructure issues have been resolved. The issues litigated up on the hearing were limited to town planning matters. In the appeal, the appellants bear the onus.
The Court must decide the appeal on the laws and policies that applied when the application was made but may give weight to any new laws or policies the Court considers appropriate. The decision on the development application must not conflict with a relevant instrument unless there are sufficient grounds to justify the decision despite the conflict.
The subject site has an area of approximately 1.982 hectares and a relevantly long frontage, of 210 metres, to the eastern side of Rural View Drive. There is an existing house situated approximately mid-block and in relatively close proximity to the road frontage. The land generally slopes towards the east and affords attractive views from the higher parts of the site.
The proposal is to subdivide the existing lot into three, two of which would be 6600 square metres in area with the third being 6627 square metres. The existing house would be retained on the middle allotment. The proposal if approved would facilitate the construction of two more dwellings, one on each of proposed lots 1 and 3 respectively. Those houses would need to be constructed on proposed building envelopes on each of the lots.
Proposed lot 3 is relatively steeply sloping. The proposed building site commences 10 metres from the road frontage. This would facilitate a house constructed on the higher part of the site which would afford attractive views to the east. Whilst the 10 metre setback affords an area for landscaping, it would be quite obvious that there was a house on that site. The proposed building envelope on lot 1 is set further back from Rural View Drive, but the topography is such that a house in that location would also be readily visible, subject to filtering of views by any vegetation.
The applicable planning scheme is the 2006 Mackay City Planning Scheme, as amended. Within that scheme, the subject site falls within the Mackay Frame locality and is included in the Rural Residential zone. It is common ground that conflict exists between the proposal and the scheme’s provisions in relation to lot size.
The overall outcomes for the rural residential zoned land in the Mackay frame locality include that:
Development for residential accommodation is on large lots, generally of one hectare or more, with other activity being ancillary to the principal use of rural residential living.
Whilst the word “generally” admits of the prospect of some lots being less than the one hectare figure, the Reconfiguration of a Lot Code, which is an applicable code for the purposes of this development application, requires, amongst other things, that each lot is consistent with the minimum area and dimensions set out in table 9-19.1. That table includes a minimum area for rural residential land of one hectare. The proposal is inconsistent with that minimum area, being substantially less than one hectare. It should be noted that, in terms of dimensions, the proposed lots each comply with the minimum frontage and depth requirements, of 60 metres in each case.
The principal issue in the case, therefore, is whether there are sufficient grounds to approve the application, notwithstanding the conflict which arises by reason of the substantial shortfall in the area of the proposed new allotments. In seeking to justify approval notwithstanding conflict from a planning perspective, the town planner nominated by the appellant, Mr Dance, made much of what he saw as the high level of utility and amenity which would be provided by the proposed lots notwithstanding the smaller lot sizes. That must, however, be seen in light of the fact that a different specific outcome of the reconfiguration of a lot code requires each lot to have an area and dimensions such that it offers a high level of utility and amenity for its subsequent use and the use of adjoining allotments, by providing ample opportunity for the separation of uses within adjoining blocks. The specific outcome which requires a minimum area of one hectare is P2, which is an independent specific outcome which is not taken to be satisfied even if P1 can be can be said to be satisfied in the circumstances. Further, and contrary to Mr Dance’s erroneous reference in the joint report, the requirements of P2 in relation to minimum area are not an acceptable/probable solution which merely provides a guide for achieving an outcome. It is instead, itself a specific outcome.
As White DCJ said in Our Stuff Pty Ltd v Douglas Shire Council [2007] QPELR 268 at 271:
The determination of appropriate allotment sizes for a particular locality or zone is one of the many important planning strategies which a local authority may adopt in order to regulate the intensity and form of development in a particular area or zone.
Whilst counsel for the appellant pointed out that the extent of conflict in this case was limited to the area provisions, that does not mean that the conflict is of no great moment. The provisions in relation to minimum area obviously form an important component of the town planning provisions under the relevant planning scheme. This is not to say that an approval can never be given for a reconfiguration which does not conform to the minimum requirements. There is always the opportunity to establish that approval is warranted in a particular case notwithstanding.
Mr Dance referred to two instances where lots with areas considerably less than one hectare have been created elsewhere, but that does not constitute any sort of precedent for approval of the subject application. As Mr Dance conceded, the situation and circumstances of those allotments were quite different to the subject.
Mr Perkins referred to the prospect of an approval of this application creating undesirable development pressure for other like subdivision in the rural residential estate centred on Rural View Drive. It is not appropriate to refuse a meritorious proposal on the basis that it might provoke a future application for something which is inappropriate. On the other hand, one does not carry out assessment of a proposal in a manner which is divorced from its context, nor is it appropriate to approve an unmeritorious proposal on the basis that it is just one exception. Such an approach may well change the context within which future applications are to be assessed. The correct approach, as this court has often said, is to assess each case on its merits.
There is no suggestion of any pending change to the provisions which refer to a minimum site area of one hectare. In the course of last year, the council formulated a draft planning scheme which was publicly exhibited. The scheme is not anticipated to take effect until 2015 and there are steps to be taken between now and then in terms of its progression. The draft scheme carries forward the planning intent for the site and the rural residential estate of which it is a part. It retains the land in the Rural Residential zone, which is a zone intended to provide for low intensity residential development on large semi-rural sites in certain locations. Those locations expressly include:
…within urban areas, where it is intended to retain the character and amenity of large sites. Examples include…Rural View…
The criteria for assessable development in the rural residential zone includes an acceptable outcome AO5.2 which states that:
The maximum residential density is the equivalent of one dwelling per every one hectare of site area.
The reconfiguration of a lot code in the draft scheme includes performance outcome 8, which requires that each lot complies with, amongst other things, the minimum lot size identified in table 9.4.4.3.B. That table indicates a minimum lot size of one hectare for land in the rural residential zone.
The appellant therefore can gain no comfort from reference to the draft planning scheme. It may be noted that the appellant lodged a formal submission in relation to the draft planning scheme which advocated for a reduced minimum lot size of 4000 square metres, but it was not submitted by counsel for the appellant that there is any suggestion that that suggestion has been taken up.
The proposal finds itself in the position of being inconsistent, not just with the minimum lot size referred to in the planning scheme, but with the actual size of allotments in the Rural View Drive rural residential estate. Rural View Drive is the only road which provides access to and through the residential estate. Rural View Drive commences at the termination of Rudd Street, which passes through a newly developing residential estate of conventional density which now adjoins the eastern extremity of the rural residential estate and with which the subject site has a common boundary. The Rural View residential estate was developed almost four decades ago as an estate of 20 allotments, each of which were just shy of two hectares in area. With changing planning regimes over time, approvals have been obtained to split some of those allotments in two, so as to produce some allotments which are just over, and some allotments which are just under one hectare in area. The smallest allotment within the estate is now 9227 square metres, and there are now 29 lots.
The proposal would be the first subdivision to split one of the parent lots into three and would result in allotment sizes which are substantially smaller than either the one hectare in the planning scheme or the allotment sizes which, in fact, prevail throughout the estate. In short, there is nothing in either the planning scheme or in the subdivision layout of the estate which would give any expectation of the subdivision of lots into areas as small as is proposed in this case.
It was pointed out that the allotments in the estate, whilst being approximately one hectare or more in size, do not comply with the current requirements in relation to the dimensions of the lots and, in particular, do not comply with the provisions which set a minimum frontage of 60 metres. Indeed, the estate, even when first developed, had allotments of just shy of two hectares which did not have such frontage. The allotments which have been created by subsequent subdivision have been permitted, notwithstanding, notwithstanding that they have significantly smaller frontages than 60 metres.
As Mr Perkins, the town planner nominated by the respondent, pointed out and as is evident from the plans in evidence, the development on many of those lots is, however, towards the rear of the lots, with the result that there has not been an undue erosion of the apparent very low density of development within the estate. Indeed, the topography of the estate and the positioning of the houses is such that it accentuates the apparent low density nature of the estate.
Rural View Drive has something of a oval shape, with its longer sides running in a north-south direction. As one approaches Rural View Drive from Rudd Street, the road rises as one moves from east to west across the northern end of Rural View Drive. As one proceeds in an anticlockwise direction, one then moves in a north to south direction, through the western side of the estate, with the land rising on the left-hand side, towards the most elevated part of the estate, whilst the land on the right-hand side, or western side, is at a lower level.
The allotments on the western side of the estate are still predominantly of close to two hectares in area, with the houses set generally at the back of the allotments, such that the considerable size of the allotment, the considerable setback and the intervening vegetation makes the housing difficult, if not impossible, to see. On the left-hand side, towards the east, the houses are also well set-back from the road, and the land is steeply rising. The location of those houses is to be expected, because owners naturally seek to locate at the highest elevation, so as to obtain the best views. The result, however, is that, as one enters the estate, as I have indicated, one does see housing at the northern end, but quickly enters a long stretch of Rural View Drive, where, by reason of a combination of allotment size, house location, vegetation and topography, the impression is one of very low intensity development.
As one proceeds to the southern end of Rural View Drive, the housing on the more elevated parts of the site remain to the left of the driver being to the north and again, are set well back from the road. Housing on the right-hand side, or southern side, has a mixture of locations. However the houses on lot 8 on SP159747, lot 5 on RP730309 and lot 30 on SP208025 are all located towards the rear of allotments, in locations which are significantly removed from the road, and there is intervening vegetation.
As one then turns the corner before heading north in the eastern part of the estate, one encounters, on the right-hand, or south-eastern corner of the site, some of the newly created allotments which are close to, but just under, the one hectare size. The house on lot 30 on SP208025 is located towards the rear of the property, with intervening vegetation. The house on lot 29 on SP208025 is located much closer to the road, on a site which is, at this stage, relatively bare, whilst a new house has been constructed on lot 28 on SP170028, which is much further removed from the road than is the house on lot 29. Those houses, together with the house on the eastern side, as one turns the corner, on lot 27 on SP170028, have a somewhat more clustered appearance than one generally gets elsewhere. However, the spacing between them is still greater than would be the case for the housing within the subject site, if it were subdivided and developed for two additional dwellings.
As one continues the journey, by proceeding in a northwards direction on Rural View Drive through the eastern portion of the site, the housing on the left-hand side is again located very significantly away from the road and towards the more elevated parts of the site, where the greatest views can be reached. Hence, although there is somewhat of a cluster of houses on the most elevated part of the estate, when looked at a from a bird’s-eye view, that has little effect on the amenity and apparent intensity of development in the rural residential area, because of the typography and the setbacks from Rural View Drive and intervening vegetation.
A significant proportion of what lies on the right-hand side of the road, or the eastern side, is the subject site. It has a house which is adjacent to the road, but the elongated frontage of the site means, in its current configuration, it contributes to the apparent low intensity nature of the estate. North of the subject site lie two properties, one of which is just greater than one hectare and one of which is just under.
Overall then, not only is the estate within a zone which contemplates development at low intensity with lot sizes of generally one hectare or more and not only does the estate, in terms of its current form, generally comply with that intention, but the
typography, house placement, setbacks and vegetation combine with the lot sizes to create the impression of something which is even less intensive than one might be led to expect from a bird’s eye view.
It was submitted, on behalf of the appellant, that the elongated frontage of the site and the proposal for building location envelopes within the new lots are important considerations in considering the acceptability of its proposal. The elongated frontage permits a subdivision proposal which features three sites, each of which would comply with the 60 metre minimum referred to in the planning scheme, but which has not been followed in other reconfiguration applications within the estate. Mr Dance emphasised that this elongated frontage permitted the creation of allotments which would have no greater apparent density than hypothetical ones which might comply fully with the requirements. In that regard, he was comparing the presentation of the proposed new allotments to the presentation of notional allotments with the same frontage but greater depth, so as to achieve the one hectare area with a 60 metre frontage.
While the depth of the site is such as to enable the appellant to achieve compliance with the minimum depth requirements, it is not sufficient to enable it to do so whilst achieving allotments of one hectare or thereabouts. The application of the development standards in this case, if one were to extend to this site the same discretion that has been exercised elsewhere for allotments which are very close to, but less than, the minimum requirement, would facilitate a maximum of one additional dwelling. The proposal for a third allotment will produce a noticeable difference and a difference which creates, as Mr Perkins attested, somewhat of a greater sense of clustering of houses in this part of the estate.
In that regard, it must be remembered that the situation and typography is such that the houses on the allotments can be expected to be built in locations which take advantage of the views to the east and therefore development could reasonably be expected to the uppermost edge of the designated building envelopes. As I have already observed, the existing house which is on proposed lot 2 is located close to the road and is very evident from it. The additional house which would be on proposed lot 3, set back 10 metres from the road would, even with some landscaping, be quite obvious. The building envelope on lot 1 is currently readily visible from Rural Drive. Even if one assumes landscaping, it would be no secret that there were three houses on the parent parcel after subdivision and development.
Whilst I acknowledge the benefits of the frontages which can be achieved and the benefits of nominating building location envelopes, and whilst I also acknowledge that the separation between the dwellings would be sufficient to achieve good amenity for the residents of those dwellings, nevertheless, the subdivision would result in somewhat of a clustering in this location, would result in spacings between buildings which are significantly less than occurs on many of the allotments within the estate and somewhat less even than the houses in the south-eastern corner to which attention was paid in the course of cross-examination of Mr Perkins.
Counsel for the appellant emphasised that the use of area as a determinant of density did not necessarily achieve an appropriate result. However, in this case, it seems to me that, having regard to the situation and circumstances of the subject allotment, that allowing reconfiguration to allotments of this size will have some detrimental effect on the amenity of the estate as perceived as one moves through it along the road. It could not be pretended that the result would be dramatic or that it would completely destroy the very pleasant amenity of the estate. However, it would have, in my view, an incremental and adverse eroding effect.
In coming to that view, I have been mindful that, as one looks out across the site, the much more dense development of the standard residential areas to the east are in plain view. However, the eastern part of the estate is not intended, by the planning documents, as some form of transition area in which development at densities somewhere between that of the standard residential development to the east and that of the rural residential densities in the estate otherwise are foreseen. The planning strategy is one which relevantly reflects an intended demarcation between the treatment of the rural residential estate, including the eastern part of it, and the more intense urban residential development to the east.
In seeking to justify approval notwithstanding conflict, Mr Dance considered the following matters of relevance:
ŸThe subject land is on the eastern periphery of the estate and enjoys a very long road frontage; the proposed lots will have a frontage that complies with the Scheme and will have a regular shape that is functional;
ŸThe proposed lots will still constitute “large lots” and in my view, do not lose the character of being rural residential; they can provide more than enough space for large gardens and other activities characteristic of rural residential living;
ŸVery high amenity would clearly be enjoyed at residences constructed on the lots because of their size, their orientation and views, and their proximity to services generally;
ŸThe generous separation distances that can still be achieved between building envelopes on the lots and adjoining development, thus ensuring continuation of their own amenity;
ŸThe general compliance with other overall outcomes for the zone, that are achieved or can be assured through conditions;
ŸThe changing circumstances of the land which place it at an urban development edge, with the benefits of most high order services being at hand;
ŸThe addition of two lots into the rural residential market of the Mackay region would be of no significance to the overall reserve capacity in the market, for lots of this type;
ŸWater is now proposed to be supplied via roof water collection and tank storage. The council maintains a policy about tank water supply for dwellings and conditions can be imposed which would ensure provision of adequate supply and fire-fighting capacity;
ŸResident expectations have evidently adapted to some changing circumstances over time – lot sizes and frontages. The variation embraced by this particular proposal will have no consequence to the amenity enjoyed elsewhere in the estate, and could be expected to be accepted by residents as they have accepted other change.
In the reference to the addition of two lots being of no significance to the overall reserve capacity in the market, as well as the reference to water supply, are references to issues which were raised, but resolved or abandoned in the course of the appeal.
I have dealt with the observation that the land is at the eastern periphery, as well with the significance of the compliance of the proposed lots with the frontage requirements.
I acknowledge that the proposed lots are still quite large lots by the standards of ordinary urban residential subdivision, but they are significantly smaller than the size of allotments generally anticipated in the Rural Residential zone, pursuant to the planning scheme, and significantly smaller than those which prevail in the estate of which the subject site forms a part.
I accept that the allotments would provide a high level of amenity for those who decided to purchase the allotments and build their homes there and that the separation distances with adjoining allotments would not unduly impact upon the amenity of the residents of those allotments. However, as I have observed, the incremental increase in the number of houses in this part of the estate would, in my view, have an effect upon the overall character and amenity of the area.
I have already dealt with the extent of conflict with the planning scheme.
The changing circumstances of the land do bring the benefits of the estate being close to higher order services. However, I do not regard that as justifying the departure from the scheme’s provisions with respect to the site area sought in this case.
No doubt if these allotments were created the residents would have to accept them over time. However, I do not consider that there is anything about the planning scheme or the circumstances of the site as it currently stands that would given an expectation of subdivision in the way which is currently applied for.
In the submissions for the appellant, the Court was also urged to consider that:
(b) The area of the lots in question remain significant and up to 66 per cent of the “permitted” minimum.
(c) That the proposed development otherwise accords with the scheme such that failure to comply with the lot area has no perceptible consequence.
(d) To the extent that the approval will involve the addition of one more house to the inferred outlook of the Rural View houses, this is affected by the presence of far more substantial housing development to the immediate east.
(e) That Rural View’s character is maintained.
I have already dealt with each of those matters. For the reasons that I have already given, I consider that the lot size in question is significantly less than that referred to in the planning scheme; that the failure to meet the minimum lot size in this case will have a perceptible consequence, namely the creation of an additional dwelling compared to the situation if the allotment were subdivided into two lots of approximately one hectare each. I have also concluded that the proposal would have some detrimental impact on Rural View’s character. Whilst I have acknowledged the effect of the substantial housing development to the immediate east, as I have already indicated, the fact of that housing does not call for an intensification of development within the rural residential estate to the extent that is here proposed and that does not justify permitting a transitional allotment size.
For the reasons that I’ve already given, I accept Mr Perkins’ conclusions that:
(a) Development of lots of between 6,600 m2 and 6,627 m2 (as proposed by the Appellant) is notably more intense than established rural residential development in this locality;
(b) Lots of this size do not reflect the existing scale or intensity of established rural residential development in this locality, which features many lot sizes in excess of one hectare and with the smallest lot 9,227 m2;
(c) These characteristics are augmented by substantial building setbacks from the street in many cases, which with the vegetated nature of many of the lots contributes to a very spacious, low density overall character; and
(d) The proposed reconfiguring will adversely impact on the established large lot, low intensity rural residential amenity and the reasonable expectations of residents of the locality, conveyed by both the existing and draft planning schemes.
The appeal is dismissed.
______________________
0
0
0