Boland v Clarence City Council
[2018] TASSC 43
•25 September 2018
[2018] TASSC 43
COURT: SUPREME COURT OF TASMANIA
CITATION: Boland v Clarence City Council [2018] TASSC 43
PARTIES: BOLAND, Christopher John
v
CLARENCE CITY COUNCIL
HAND, Marc
FILE NO: 1268/2018
DECISION
APPEALED FROM: C Boland v Clarence City Council [2018] TASRMPAT 4
DELIVERED ON: 25 September 2018
DELIVERED AT: Hobart
HEARING DATE: 7 August 2018
JUDGMENT OF: Blow CJ
CATCHWORDS:
Environment and Planning – Environmental planning – Development control – Control of particular matters – Residential – Dwellings and houses – Meaning of "adjoining lots" and "adjoining buildings".
Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Break O'Day Council v Resource Management and Planning Appeal Tribunal [2009] TASSC 59, 19 Tas R 94, followed.
Aust Dig Environment and Planning [165]
REPRESENTATION:
Counsel:
Appellant: A C Wood
First Respondent: A Walker
Second Respondent: No appearance
Solicitors:
Appellant: C J Boland
First Respondent: Dobson Mitchell Allport
Second Respondent: A Beeson
Judgment Number: [2018] TASSC 43
Number of paragraphs: 42
Serial No 43/2018
File No 1268/2018
CHRISTOPHER BOLAND v CLARENCE CITY COUNCIL and MARC HAND
REASONS FOR JUDGMENT BLOW CJ
25 September 2018
This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal ("the tribunal") constituted by the chairperson, Ms M Duvnjak, and two other members. The appellant, Mr Boland, owns a property at Cremorne, about 27Km from the Hobart CBD. The property is on the corner of Cremorne Avenue and Frederick Henry Parade. It is within the municipal area of the Clarence City Council ("the council"). The appellant applied to the council for a planning permit under the Land Use Planning and Approvals Act 1993 ("the LUPA Act") for the construction of a four-storey building containing five dwellings. The Council refused his application. He appealed to the tribunal, but it dismissed his appeal: C Boland v Clarence City Council [2018] TASRMPAT 4. This is an appeal from that decision. By virtue of s 25(1) of the Resource Management and Planning Appeal TribunalAct 1993, an appeal of this nature can succeed only if the tribunal has erred in law.
In his notice of appeal, the appellant named the tribunal as a respondent to this appeal. That was not appropriate. Where there is a right of appeal from a decision of a court or tribunal, it is inconsistent with the role of the court or tribunal appealed from for it to be a party to the litigation. I therefore ordered at the start of the hearing that the tribunal be removed as a respondent to the appeal. The position is different in proceedings under the Judicial Review Act 2000 and in applications for relief in the nature of prerogative relief, but this is not such a case. The only appropriate respondents in this case were the other parties to the proceedings before the tribunal. The council was represented at the hearing of this appeal but the other respondent, Mr Hand, who had been a party in the tribunal proceedings, chose not to participate.
The property to which this appeal relates is in an area to which the Clarence Interim Planning Scheme 2015 applies. In the proceedings before the tribunal, it was common ground that the permit sought by the appellant could not be granted unless certain criteria, referred to in the planning scheme as "performance criteria", were satisfied. Those criteria related to building height and setbacks from side and rear boundaries. If all of the relevant criteria were satisfied, then the tribunal would have had a discretion to grant a permit. However the tribunal concluded that some of the criteria were not satisfied, and dismissed the appeal accordingly.
In summary, the tribunal's conclusions as to unsatisfied criteria were as follows:
· In its reasons at [65]-[67] it concluded that the building height was not sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by visual impact when viewed from adjoining lots, due to bulk and height, as required by cl 16.4.1.P1(b)(iii) of the planning scheme. In making that finding the tribunal treated the neighbouring properties at 3 Cremorne Avenue and 1 Frederick Henry Parade as "adjoining lots".
· At [80], it concluded that the building height would not prevent unreasonable adverse impacts on residential amenity on adjoining lots by allowing for a transition in height between adjoining buildings, where appropriate, as required by cl 16.4.1.P1(d) of the scheme. For the purpose of that finding, it treated the buildings at 3 Cremorne Avenue and 1 Frederick Henry Parade as "adjoining buildings".
· At [93], it concluded that the building setback from the frontage was not compatible with the setback of adjoining buildings, as required by cl 16.4.2.P1(b) of the planning scheme.
· At [107], it concluded that the building setback from the frontage did not enhance the characteristics of the site, adjoining lots, and the streetscape, as required by cl 16.4.2.P1(c) of the planning scheme.
· At [115], it concluded that the building setback from the side and rear boundaries was not sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by visual impact, when viewed from adjoining lots, through building bulk and massing, taking into account aspect and slope, as required by cl 16.4.2.P2(a)(iii) of the planning scheme.
Counsel for the appellant submitted that the tribunal erred in its reasons in several respects. Most of those contentions relate to more than one of the relevant provisions in the planning scheme.
Acceptable solutions
Clause 16.4 of the planning scheme sets out criteria against which the proposed development had to be assessed. Each of the relevant subclauses are what the planning scheme calls "applicable standards". In each subclause, the criteria are arranged in two columns – a left column and a right column. The criteria in the left column are called "acceptable solutions". The criteria in the right column are called "performance criteria". The scheme operates in the following way:
· If a proposed development satisfies the criteria in the left column in respect of each "applicable standard", the council must permit the development: cl 8.7.1(b).
· If in respect of any "applicable standard", a proposed development does not satisfy either the criteria in the left column or the criteria in the right column, the council is obliged to refuse a permit. That is implicit in cl 8.9, but not expressly stated.
· If a proposed development satisfies either the criteria in the left column or the criteria in the right column of every "applicable standard", the council has a discretion to grant or refuse a permit: cl 8.8.1(b).
· Generally speaking, applying the criteria in the left column does not involve making a value judgment, but applying the criteria in the right column does involve making a value judgment.
Under the planning scheme, the subject land is in the "Village Zone". The clauses relating to building height and setbacks in the Village Zone read as follows:
"16.4.1 Building Height
Objective:
To ensure that building height contributes positively to the streetscape and does not result in unreasonable impact on amenity of adjoining land.
Acceptable Solutions Performance Criteria A1 P1 Building height must be no more than:
8.5 m
Building height must satisfy all of the following:
(a) be consistent with any Desired Future Character Statements provided for the area;
(b) be sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by:
(i) overlooking and loss of privacy;
(ii) overshadowing and reduction of sunlight to habitable rooms and private open space on adjoining lots to less than 3 hours between 9.00 am and 5.00 pm on June 21 or further decrease sunlight hours if already less than 3 hours;
(iii) visual impact when viewed from adjoining lots, due to bulk and height;
(c) not unreasonably overshadow adjacent public space;
(d) allow for a transition in height between adjoining buildings, where appropriate;
(e) be no more than 9.5 m.
16.4.2 Setback
Objective
To ensure that building setback contributes positively to the streetscape and does not result in unreasonable impact on residential amenity of adjoining land.
Acceptable Solutions Performance Criteria A1 P1 Building setback from frontage must be parallel to the frontage and must be:
no less than 6 m, if fronting South Arm Road
OR
no less than 4.5 m, if fronting any other road
Building setback from frontage must satisfy all of the following:
(a) be consistent with any Desired Future Character Statements provided for the area;
(b) be compatible with the setback of adjoining buildings, generally maintaining a continuous building line if evident in the streetscape;
(c) enhance the characteristics of the site, adjoining lots and the streetscape,
A2 P2 Building setback from side and rear boundaries must be no less than:
(a) 2 m;
(b) half the height of the wall,
whichever is the greater.
Building setback from side and rear boundaries must satisfy all of the following:
(a) be sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by:
(i) overlooking and loss of privacy;
(ii) overshadowing and reduction of sunlight to habitable rooms and private open space on adjoining lots to less than 3 hours between 9.00 am and 5.00 pm on June 21 or further decrease sunlight hours if already less than 3 hours;
(iii) visual impact, when viewed from adjoining lots, through building bulk and massing;
taking into account aspect and slope"
The height of the proposed building exceeds 8.5 metres. The "acceptable solution" in the left column of cl 16.4.1 was therefore not satisfied, and it followed that the tribunal had to consider the "performance criteria" in the right column of that clause. The building setbacks did not satisfy the "acceptable solutions" in cl 16.4.2, and it was therefore necessary for the tribunal to have regard to the "performance criteria" in the right column of that clause.
In the tribunal proceedings, the appellant contended that, even though the development did not satisfy the criteria called "acceptable solutions", the provisions in the left column of the relevant clauses had to be taken into account in making the value judgments required in relation to the "performance criteria". It was argued that the "acceptable solutions" were illustrative of what was reasonable. The tribunal took a different view. The appellant contends that it thereby erred in law.
In the past, there had been conflicting decisions of the tribunal as to this point in relation to similar provisions in planning schemes. In A Rowell v Clarence City Council [2012] TASRMPAT 94 the tribunal, constituted by its then Chairman Mr S J Cooper and two other members, took the view now contended for by the appellant, saying at [13]:
"In assessing whether the applicable Performance Criteria are satisfied the Appellants submitted that the proper approach is to look first at what might have otherwise been permitted as of right (that is to say, in compliance with the applicable Acceptable Solution) and then compare that result with the actual proposal. Such an approach is, in the tribunal's respectful [sic] view, entirely appropriate. Necessarily assessments of matters as imprecise as 'streetscape qualities', 'consistency with Statements of Desired Future Character', 'adequate visual separation' and the like requires [sic] a consideration of what might be reasonably expected – if only to attempt to avoid as far as possible subjective considerations reigning supreme. The reasonable benchmark, as it were, is, in the tribunal's view, to be found in what may be constructed in accordancewith the empirical standards imposed by the appropriate Acceptable Solution."
The opposite view was taken by the tribunal, constituted by its then Chairman Mr G P Geason (as he then was) and one other member, in Henry Design and Consulting v Clarence City Council [2017] TASRMPAT 11. That case concerned a provision in the Clarence Interim Planning Scheme 2015 relating to density of residential development. The tribunal said the following at [31]-[36]:
"31Clause 10.4.1 A1 establishes the magic number of 325 m2/dwelling; it contains no other considerations. It is akin to a bomb which, when detonated by a compliant development, obliterates any and all non-numerical planning considerations peripheral to density - such as existing and proposed development density, compatibility with streetscape, character, urban form and so on. The only matter of any importance is the number.
32An A1-compliant development may be wildly divergent from prevailing density, but the Scheme proclaims it acceptable anywhere in the General Residential Zone, and immune from any considerations of compatibility or other 'impedimenta'.
33It follows then that, contrary to the Appellant's submission, there is nothing in the Scheme indicating or requiring an A1-compliant development to be accepted as being 'in harmony' with the surrounding area. Clause 10.4.1 appears to encourage development densities which could be seen as ruthlessly antithetical to those prevailing in the Zone, rather than harmonious with them. A development meeting A1 is deemed to achieve the objectives of the standard and there is nothing in those objectives relating to the concept of harmony or the determination of compatibility.
34P1 is in stark difference to A1. A failure to comply with A1 opens the door into the murky gloom of the complex test required by P1. The components and requirements of that test are independent of the content of A1. The P1 test only involves a conclusion as to whether the density of one thing (a new development) is 'compatible' with the density of another thing (the 'surrounding area'). Properly viewed, the cl. 10.4.1 objectives do not affect this test.
35An attempt to elevate the A1 density of 325m2 to a factor relevant to the test required by P1 would be invalid. A1 cannot be used to influence or determine the compatibility test.
36This approach would evict the identified components from the P1 test, and re-tenant P1 with the A1 standard. This would lead to an intractable and paradoxical conclusion. That is, if a development is acceptable because it varies only slightly from 325 m2, the corollary is that one varying significantly from the magic number must approach, or be unacceptable. This could, for example, result in the conclusion that a proposal of very high density may be unacceptable in any part of the Zone - even a part possessing a density high enough to otherwise exhibit compatibility with that development (sensu cl 10.4.1 P1). This would be contrary to the context of the Scheme and the intent of the Clause." [Footnotes omitted.]
The status of "acceptable solutions" and "performance criteria" is dealt with in cl 7.5 of the planning scheme, which is headed "Compliance with Applicable Standards". The relevant provisions read as follows:
"7.5.1A use or development must comply with each applicable standard in a zone, specific area plan or code.
7.5.2…
7.5.3Compliance for the purposes of subclause 7.5.1 consists of complying with the acceptable solution or the performance criterion for that standard."
The word "or" in cl 7.5.3 clearly indicates that the question whether a development complies with an "acceptable solution" and the question whether the same development complies with a "performance criterion" are two completely separate questions. Thus, in determining whether a proposed development complies with cl 16.4.1, it would be utterly inappropriate to consider the "performance criteria" when determining whether the proposed building height exceeded 8.5 metres.
In determining whether a proposed development satisfies a "performance criterion", there is no reason why it should be mandatory for a decision-maker to give any weight to any corresponding "acceptable solution". It may be appropriate on occasions for the council, or the tribunal standing in the shoes of the council, to accept that the authors of the planning scheme considered that satisfaction of an "acceptable solution" would usually promote a relevant objective. On that basis, an "acceptable solution" could sometimes be treated as relevant for the purpose of determining whether a "performance criterion" is satisfied. However relevance and weight would be matters for the decision-maker – either the council or the tribunal. It certainly cannot be said that the "acceptable solutions" in the subclauses that are relevant to this appeal were, as a matter of law, relevant considerations that the tribunal had a duty to take into account when determining whether "performance criteria" were satisfied.
It follows that the tribunal did not err in law by following Henry Design and not following Rowell.
Adjoining lots and adjoining buildings
There are two houses next door to the property in question – at 3 Cremorne Avenue on the west side, and at 1 Frederick Henry Parade on the north side. There are spaces between the buildings on the subject property and each of those houses. The property shares a common boundary with 3 Cremorne Avenue, but not with 1 Frederick Henry Parade. There is a laneway about 3.5 metres wide between the northern boundary of the property and the southern boundary of 1 Frederick Henry Parade. The tribunal treated the buildings on 3 Cremorne Avenue and 1 Frederick Henry Parade as "adjoining buildings" for the purposes of cl 16.4.1 of the planning scheme, and treated those two properties as "adjoining lots" for the purposes of those provisions. Some of the appellant's grounds of appeal contain contentions that the tribunal erred in law in treating 1 Frederick Henry Parade as an "adjoining lot", and in treating the building on that property as an "adjoining building", but there are no corresponding grounds of appeal in relation to 3 Cremorne Avenue. The appellant contends that 1 Frederick Henry Parade is not an "adjoining lot" because of the laneway, and that the building on that property is not an "adjoining building" because adjoining buildings do not have any spaces between them.
Clause 4.1.1 of the planning scheme provides as follows:
"Terms in this planning scheme have their ordinary meaning unless they are defined in the Act or specifically defined in subclause 4.1.3 or in a code in Part E or a specific area plan in Part F."
The Act referred to is the LUPA Act. None of the exceptions specified in cl 4.1.1 applies to the term "adjoining lots" or the term "adjoining buildings".
The word "lot" is defined in cl 4.1.3 of the planning scheme to mean "a piece or parcel of land in respect of which there is only one title other than a lot within the meaning of the Strata Titles Act 1998". That definition plainly makes no difference to the question of the "ordinary meaning" of the term "adjoining lots".
The word "building" is defined in s 3 of the LUPA Act, as follows:
"building includes —
(a)a structure and part of a building or structure; and
(b)fences, walls, out-buildings, service installations and other appurtenances of a building; and
(c)a boat or a pontoon which is permanently moored or fixed to land."
Because that definition is included in the LUPA Act, it follows that cl 4.1.1 does not require that the word "buildings" be given its ordinary meaning where it appears in the relevant clauses. However it would be ridiculous to treat the term "adjoining buildings" in the relevant clauses as including fences. Despite the inapplicability of cl 4.1.1, there is no reason for the word "buildings" not to be given its ordinary meaning in the relevant clauses.
The word "adjoining" has been given a loose meaning by courts in a number of planning cases. In Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, the New South Wales Court of Appeal had to consider the meaning of the word "adjoins" in a piece of subordinate legislation relating to the siting of housing for aged or disabled persons. The granting of development consent for the purpose of such housing was not permitted unless "the land is within or adjoins land zoned for urban uses". The Court held that a proposed development site that was across a road from land that was zoned for urban uses adjoined the land so zoned within the meaning of the relevant clause. It appears from the judgment of Kirby P (as he then was) at 433 that counsel conceded "that the word 'adjoins', in its various forms could mean either physical contiguity or close physical proximity, depending upon the context". His Honour considered the context and purpose of the relevant provision, and said the following at 434:
"Roads and roadside reserves exist as a normal feature of urban development. In the present case there was no separate development between land undoubtedly zoned for urban use and the proposed development. But even if there were no strict abutment, because of the lack of physical contiguity, there is still a sufficient proximity to bring the proposed development within the word 'adjoins' in the context of cl 11(2)(a). Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word 'adjoins' is no exception. Whereas originally it might well have connotated immediate physical contiguity, nowadays that idea tends to require the use of the adverb 'immediately', such as 'immediately adjoins'. That adverb would not be necessary if the word itself invariably connotated immediate physical proximity."
Glass JA, with whom Mahoney JA agreed, took the same view, saying the following at 443:
"The trial judge ruled that the word 'adjoins' in the statutory phrase 'adjoins land zoned for urban purposes' is used in its loose sense of 'is near to' and 'is neighbouring on' rather than its exact meaning 'is conterminous with'. So construed the subject land which is separated from urban land zoned for urban uses by no more than a public road adjoined such land. Mr Hemmings argued for the construction of 'adjoins' as meaning 'abuts' or 'is contiguous with'. ... In my opinion the word 'adjoins' is currently used in both senses and must take its colour from the context in which it appears."
The same interpretation of the same clause was adopted by Bignold J in the Land and Environment Court of New South Wales the previous year in Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276.
In Break O'Day Council v Resource Management and Planning Appeal Tribunal [2009] TASSC 59, 19 Tas R 94, Porter J had to consider the meaning of the term "adjoining lots" in a provision in a planning scheme relating to the adjustment of title boundaries in a subdivision. He concluded at [22] that a wide meaning of "adjoins" should be adopted, having regard to the context of the clause under consideration. At [21] he referred to four more reported New South Wales cases in which the loose meaning of "adjoins" was adopted.
Clause 16.1.1 of the planning scheme sets out six "Zone Purpose Statements" relating to the "Village Zone", as follows:
"16.1.1.1To provide for small rural centres with a mix of residential, community services and commercial activities.
16.1.1.2To provide for residential and associated development in small communities.
16.1.1.3To ensure development is accessible by walking and cycling.
16.1.1.4To allow for a small shopping precinct that may include supermarket, tourism related business and a range of shops and rural services.
16.1.1.5To allow for office based employment provided that it supports the viability of the centre and the surrounding area and maintains an active street frontage.
16.1.1.6To provide for the efficient utilisation of existing reticulated services in serviced villages."
In its reasons at [46], the tribunal said, "The parties agreed that Cremorne was a hamlet, established as a seaside shack area, and in transition with older style dwellings being updated, or demolished and rebuilt into generally larger dwellings." That is consistent with the relevant properties being located within a "Village Zone", one of whose purposes is, in the words of cl 16.1.1.1, "To provide for small rural centres …". The clauses in the planning scheme relating to building height and setbacks that are the focus of this appeal related only to the Village Zone. The word "adjoining", when it appears in those clauses, should be interpreted with that context in mind.
Clause 16.4 is headed "Development Standards for Building and Works". Clause 16.4.1, which is entitled "Building Height" states its "objective" as follows:
"To ensure that building height contributes positively to the streetscape and does not result in unreasonable impacts on amenity of adjoining land."
Clause 16.4.2, entitled "Setback", states its "objective" as follows:
"To ensure that building setback contributes positively to the streetscape and does not result in unreasonable impacts on residential amenity of adjoining land."
In hamlets, villages and small rural centres, it is uncommon for residential buildings to be contiguous. Residential lots in such places are sometimes separated by narrow laneways like the laneway that runs along the northern boundary of the subject property. The clauses in question are concerned with streetscapes and the impact of proposed developments on the "amenity" or "residential amenity" of other land. If the appellant's contentions are correct, those clauses should be construed so that they would not apply when two residences were separated by a narrow laneway, and the provisions as to adjoining buildings would apply only to contiguous buildings. Such results would be entirely inconsistent with the context and purpose of the clauses. Clause 4.1.1, when it applies, requires only that words be given their "ordinary" meaning, and that is not necessarily a literal meaning. Having regard to the authorities as to the meaning of "adjoining" and the context and purpose of the relevant clauses, it is clear that the tribunal did not err in law by giving the word "adjoining" a wide meaning where it appears in those clauses.
The future-with, future-without test
The appellant contends that the tribunal had a duty, in determining whether the proposed development satisfied certain of the relevant "performance criteria", to consider and make findings about the present state of certain matters, amenities and characteristics relating to the subject property, and the likely future state thereof if the development proposal were approved. Counsel submitted that, in other words, the tribunal was obliged to engage in the necessary fact-finding by applying a "future-with, future-without" test. The appellant's counsel submitted that there were four provisions of the planning scheme to which this test should have been applied, and was not:
· Clause 16.4.1.P1(b)(iii), which required the building height to be sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by visual impact when viewed from adjoining lots, due to bulk and height.
· Clause 16.4.1.P1(d), which required the building height to allow for a transition in height between adjoining buildings, where appropriate.
· Clause 16.4.2.P1(c), which required the building setback from the frontage to enhance the characteristics of the site, adjoining lots and the streetscape.
· Clause 16.4.2.P2(a)(iii), which required the building setback from the side and rear boundaries to be sufficient to prevent unreasonable adverse impacts on residential amenity on adjoining lots by visual impact, when viewed from adjoining lots, through building bulk and massing, taking into account aspect and slope.
When considering the visual impact that the proposed building would have on 3 Cremorne Avenue, having regard to its bulk and height, for the purposes of cl 16.4.1.P1(b)(iii), the tribunal said at [66]:
"The Tribunal finds that the building will loom over the rear garden at 3 Cremorne Avenue and the 26.6m long and 7m high eastern elevation wall will dominate the views from the kitchen and living areas which are orientated towards the deck and rear yard. Whilst the view is currently impacted by the existing boundary wall and part of the site's existing building's roof, given the 7.6m setback and roof sloping away from the rear yard, the impact is very different to that of the Proposal. In assessing the impact of the Proposal, what is currently on the site is not a relevant matter per se."
Counsel for the appellant submitted that findings as to the existing characteristics of the subject property were necessary to enable the tribunal properly to assess the impacts of the proposed development, and that, by treating the existing characteristics of the property as irrelevant, it thereby "blinded itself to any realistic assessment of the impacts of the proposal". I was not referred to any authority to support the proposition that the existing characteristics of the site are a relevant consideration. The focus of the "performance criteria" in the relevant clauses is on the impact of a proposed development on streetscapes and "adjoining lots". The focus is on the proposed future situation, not a comparison between the proposed future situation and the present situation. It must follow that the tribunal did not err in law in failing to take into account the existing characteristics of the site, however awful they might be.
"Residential amenity"
The appellant contends that the tribunal adopted too wide an interpretation of the term "residential amenity", which appears in the "objective" at the beginning of cl 16.4.2. He contends that the tribunal erred in its reasons at [45] in taking into account too wide a range of matters. That paragraph of the tribunal's reasons reads as follows:
"'Amenity' is defined in the Scheme to mean 'in relation to a locality, place or building, any quality, condition or factor that contributes to making the locality, place or building harmonious, pleasant or enjoyable.' The Tribunal must consider the impact of the Proposal on the residential amenity of the Adjoining Properties caused by the visual impact due to the bulk and height of the Proposal. The Tribunal accepts the submission of the Joined Party [Mr Hand] that an assessment by the tribunal must be made having regard to all parts of the adjoining lots and viewpoints from within them."
The definition quoted by the tribunal appears in cl 4.1.3 of the planning scheme. There is no definition of "residential amenity". Essentially the definition of "amenity" refers to a "quality, condition or factor". It makes no sense to add the adjective "residential" so as to treat "residential amenity" as meaning "any residential quality, residential condition or residential factor" with certain consequences. Bearing in mind that the clause in question applies only to the Village Zone, the term "residential amenity of adjoining land" should be interpreted as meaning "amenity of adjoining land as residential land".
Counsel for the appellant drew my attention to the "objective" contained in cl 16.3.2, which relates to visitor accommodation in the Village Zone. It reads, "To ensure visitor accommodation is of a scale that accords with the residential character and use of the area". He submitted that "residential amenity" must mean something different from "residential character". He submitted that the tribunal erred in law in failing to make a distinction between the two concepts, confusing "residential amenity" with local character.
I disagree. The planning scheme's use of language, though not as strange as that of some such instruments, is not so precise that two different expressions may not have similar meanings. The tribunal did not attempt a definition of "residential amenity". It took into account the likely impact of the proposed development on the streetscape and the neighbouring properties as required by the relevant clauses. There is nothing in its reasons to suggest that in any respect it erred in doing so as a result of the meaning it attached to the term "residential amenity".
A continuous building line?
The appellant's final contention concerns cl 16.4.2.P1(b), which provides that the building setback from a frontage must "be compatible with the setback of adjoining buildings, generally maintaining a continuous building line if evident in the streetscape". The tribunal made a finding, at [93], that the first limb of par (b) was not satisfied, in that the building setback from the frontage was not compatible with the setback of adjoining buildings. It went on to make a finding, at [96], that there was no building line evident along Frederick Henry Parade. However it interpreted the paragraph in question as imposing two requirements – first that the setback from the frontage must be compatible with the setback of adjoining buildings, and secondly that, if a continuous building line was evident in the streetscape, that building line was to be generally maintained.
The appellant contends that the tribunal erred in law by treating par (b) as though it contained two discrete criteria. His counsel submitted that it was wrong for the tribunal to invoke and apply par (b) at all once it made a finding that there was no building line evident along Frederick Henry Parade.
I disagree. The sentence structure of cl 16.4.2.P1 is such that the principal requirement of par (b) is that the "Building setback from frontage must … be compatible with the setback of adjoining buildings". That requirement is modified by the addition of a subsidiary requirement about the building setback that applies only if a continuous building line is evident in the streetscape, namely that that building line is to be generally maintained.
However it makes no difference if I am wrong about that. The tribunal did not err in law in relation to any other requirement of the planning scheme. If it erred in law in regarding cl 16.4.2.P1(b) as applicable, that can make no difference to the outcome of this appeal because the tribunal correctly identified several other relevant "performance criteria" that were not satisfied.
Conclusion
For these reasons, I have decided to dismiss the appeal.
1
0