Coral Sea Developments Pty Ltd v Cairns City Council

[2000] QPEC 13

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Coral Sea Developments Pty Ltd v Cairns City Council [2000] QPE 013
PARTIES:	CORAL SEA DEVELOPMENTS PTY LTD (Appellant) v CAIRNS CITY COUNCIL (Respondent)
FILE NO/S:	No. 4580 of 1999
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	2nd March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2000
JUDGE:	Quirk DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. This appeal is against the respondent’s refusal of an application for the re-

   configuration of land near Edmonton. The land occupies an area of nearly 16

   hectares and is located near the intersection of Mt Peter and Petersen Roads. It is

   included in the Residential 2 Zone in the relevant Town Planning Scheme.

2. The proposed re-configuration will yield 23 allotments each of an area of

   approximately 4,000 square metres. Much smaller allotment sizes are permitted in the Residential 2 Zone and the size and configuration of the allotments was the

   matter which gave rise to controversy in this appeal.

3. The appellant’s position, as explained by its Town Planning Consultant, Mr

   Robinson, was that an earlier application for subdivision providing more

   conventional and smaller sized allotments had been made in respect of this parcel of

   land but had (to use his own words) languished for a number of reasons. He stated:

   “It became clear to the applicants that the market for conventional sized residential allotments had deteriorated substantially. Allotments were on the market in the subdivision north of Petersen Road including resales at prices less than new lots in this estate would cost to produce.

   During the same period it had become clear that the market for small acreage rural residential allotments close to the city were still reasonably strong. The applicants determined that there was a small niche market for fully serviced residential allotments of around 4,000 square metres in size. Such a subdivision would not be wildly profitable but it did represent an opportunity to meet market demand while producing a product which could be sold now for more than the cost of production”.

4. The application was refused on the grounds that:

“1. The proposal is not consistent with the surrounding
subdivisions;

2.          The proposal does not adequately provide for the orderly development of the subject land.

3.          The proposed re-configuration does not incorporate generally accepted sound urban designed principles”.

Later Ground 1 was amended to read:

“The proposal is not consistent with the planning of the area indicated by the site’s Residential 2 Zoning and Urban Designation in the Strategic Plan which requires that the land should be developed at Urban density”.

1. Essentially the Council’s complaint was that the larger lot sizes were inconsistent

   with the Town Planning Scheme’s intent for closer urban settlement in the area.

   The Statement of Intent for the Residential 2 Zone is introduced by the words:

   “The intent of the Residential 2 Zone is to facilitate the building of communities that are sustainable, safe and stimulating. Good subdivision design is critical to the future functioning of the residential area in terms of safety for people, traffic and property, as well as ensuring that the potential for vandalism and other anti-social activities is minimized”.

   Later in the intent it is stated:

   “This Zone will not only allow for high densities in the Residential 1 Zone but will allow for more innovative housing solutions which in turn will increase housing choice for the community”.

2. Provisions regulating allotment size are found in Part E of the Town Planning

   Scheme. Table E-1 indicates that, in the Residential 2 Zone, relevant standards are:

   “As determined by Provision 3.1.3”.

3. That provision provides relevantly:

   “The following Lot sizes are deemed to meet the objectives and
   performance criteria for the R.2 Zone;

   Allotments with an area greater than 450 square metres capable of containing a rectangle suitable for building purposes measuring 10 metres by 15 metres”.

   There is no question that the proposal meets that requirement.

4. Other than in respect of allotment size and its potential for further subdivision, there

   was really no serious criticism of the proposed layout. At one point it was

   suggested that it might have been preferable (from an environmental perspective)

   that areas allocated for open space provide better access to Stoney Creek. While

   there might be some merit in this suggestion it would not, on my view of the

   evidence, amount to a sufficient reason for rejecting the proposal.

5. Mr Humphreys, an experienced Town Planning Consultant, was called by the

   respondent Council and summarized his opposition to the proposal in this way.

   “The proposal is unacceptable on three counts:-

   1.           It is inconsistent with planning for this area, that for good strategic reasons, contemplates urban density residential development of this site within the current planning period;

   2.          The juxtaposition of that proposed form of development with zoning entitlements is likely to lead to disorderly development with higher density residential development intruding into the proposed low density setting;

   3.           The proposed design does not allow satisfactory ultimate form of urban development upon re-subdivision of the allotments currently proposed”.

6. As to the first of these grounds considerable reliance was placed on the Strategic

   Plan. In the Strategic Plan the subject land is in an area designated Urban.

   Attention was drawn to the housing strategy which is found in s.6.2. Objective 1 is:

   “To identify broad hectare land appropriate for residential housing

   and higher density residential development”.

   Objective 2 after setting out a number of obvious planning merit, indicates, in

   Implementation Provision (a):

   “Council has established a desirable population density of 10-12

   dwellings per hectare in the new residential areas of the plan area”.

   Great emphasis was placed upon this statement. The Council’s case

   appeared to suggest conflict with this provision in that the proposed layout

   would produce something in the order of 1.9 dwellings per hectare.

7. I have great difficulty in accepting that the statement found in Implementation

   Provision (a) should be read to impose a requirement that no land within the “new

   residential areas of the plan area” may be re-configured unless the result would be

   allotments of a size likely to provide 10-12 dwellings per hectare.

8. Given a sensible construction the statement really does no more than record that the

   Planning Authority, in looking ahead to the ultimate development of these areas

   (and making necessary plans for infrastructure and the like) sees them as having a

   desirable ultimate population density of 10-12 dwellings per hectare.

9. In his assessment of the matter Mr Humphreys appeared to read the Strategic Plan

   as expecting that these population densities should be achieved within the life of the

   Strategic Plan and that to produce (in this proposal) a lower density form of

   development as frustrating these objectives.

10. It is true that Implementation Provision (a) of Objective 1 states:

    “Council has identified land appropriate land for residential housing for the life of this Strategic Plan on the Urban Residential Housing Strategy Diagram A-5”.

    That however is not the same as saying that all of this land is expected to

    be taken up in that time. As Mr Robinson points out in his evidence,

    history indicates otherwise. He observed:

    “It has been variously estimated that there is sufficient land within the Urban designation and the Residential Housing designation to meet the growth needs of the Cairns community for a period of between 20 and 30 years. This is neglecting the need for a substantial land bank and taking into account trends in consolidation and subdivisional patterns. In 7 to 10 years time from 1996 (the theoretical life of a normal Town Planning Scheme) it was never possible or even likely that the whole of the Urban designation and the Residential Housing Area designation would be used”.

11. It has to be remembered that statutory planning controls cannot (and are not

    intended to) compel development of land. Their purpose is to control such

    development if and when it occurs.

12. It would of course be relevant if this proposal could be shown to preclude the

    eventual achievement of the expected population densities but that is not a

    necessary consequence of it.

13. All parties recognized that there is a possibility (if not a probability) of future

    subdivision of these allotments when the market conditions warrant it. In this

    context it is certainly valid to ask whether the layout proposed here would

    necessarily preclude further subdivision of the subject land in an appropriate and

    orderly way.

14. Indeed the applicant was asked to provide an indication of how such re-subdivision

    might occur. Having done so the applicant found its indicated layout subject to

    substantial criticism on the grounds of allotment configuration, the high proportion

    of “rear access allotments” and the like.

15. Before me there was also considerable discussion about various possibilities for re-

    subdivision of this proposal and the merits and demerits (in urban design terms ) of

    these. I felt there was an air of unreality about this exercise in that conditions at the

    time when re-subdivision might be called for can not be reliably predicted.

    Relevant facts will then include the development that has taken place on the land

    and the wishes of individual owners at that time.

16. What is important (and I accept the evidence of Mr Robinson on the point) is that

    the possibilities for future subdivision are not really limited to unacceptable extent

    and, perhaps more relevantly, the power to approve or refuse any proposal for re-

    subdivision is retained by the Planning Authority.

17. Mr Humphreys may well be correct in pointing out that it would be easier to

    achieve the best possible design if one was “starting from scratch” with a large un-

    subdivided parcel. But it is not the case that Town Planning proposals are required

    to demonstrate that they achieve the best possible result in a planning sense.

    Fundamentally land owners may develop their land as they see fit provided that

    there is sufficient compliance with statutory planning control.

18. Mr Humphreys suggested that this Town Planning Scheme intended a subdivision

    producing allotments of this order to be provided in areas designated Low Density

    Residential. The intent for this area is:

    “Areas identified as the Low Density Residential Preferred Dominant Land Use on the Strategic Plan Maps are appropriate for larger lot subdivisions and provide for residential living on allotments with a rural or semi-rural character and amenity but with the provision of a limited range of services, infrastructure and access. These are permanent residential areas of a high standard of amenity and may include uses which in the opinion of the Council do not detract from that amenity”.

19. Mr Robinson responded that the market at which this estate will be aimed is likely

    to reflect a requirement for larger sized allotments with a higher standard of urban

    services and amenity than might be available in the areas designated Low Density

    Residential.

20. Be that as it may, I do not see this proposal as being in conflict with the Strategic

    Plan in that it would not, as I understand the evidence, stand in the way of the

    eventual development of the land as the Strategic Plan envisages. I am satisfied, for

    the reasons which I have stated, that sufficient control over this eventual

    development is retained by the Planning Authority.

21. I find that the onus of showing that the application is one that should be approved

    has been discharged and the appeal is accordingly allowed.