Development Watch Inc v Sunshine Coast Regional Council
[2018] QPEC 6
•16 February 2018 (Decision); 26 February 2018 (Reasons)
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Development Watch Inc & Anor v Sunshine Coast Regional Council & Anor [2018] QPEC 6
PARTIES:
DEVELOPMENT WATCH INC
(First Appellant)
and
COOLUM RESIDENTS ASSOCIATION INC
(Second Appellant)
v
SUNSHINE COAST REGIONAL COUNCIL
(Respondent)
and
YAKOLA PARADE PTY LTD ACN 167 675 069
(Co-Respondent)
FILE NO/S:
D 10/17
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Maroochydore
DELIVERED ON:
16 February 2018 (Decision); 26 February 2018 (Reasons)
DELIVERED AT:
Planning and Environment Court, Maroochydore
HEARING DATE:
5 June 2017 to 8 June 2017
JUDGE:
Long SC DCJ
CATCHWORDS:
ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – DEVELOPMENT AGREEMENTS Where the Council approved a development for land the subject of stage 3 of a previously approved development and where stages 1 and 2 have been completed – where development of the final stage has not been undertaken over some 15 years – where the development application sought development permits to reconfigure the lot and for material change of use – where there is an appeal by submitters to the development assessment – whether there is a conflict with the Maroochy Plan 2000, including having regard to acceptable measures provided in the Code for Reconfiguring a Lot – whether despite any conflict, there are sufficient grounds justifying approval of the development
LEGISLATION:
Integrated Planning Act 1997 s 1.3.3
Sustainable Planning Act 2009, ss 7, 232, 238, 314, 315, 321, 326, 397, 462, 493(2), 495, sch 3
CASES:
AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1
Arksmead v Council of the City of Gold Coast [1999] QPELR 322
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPELR 624
Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15
Heath & Anor v Gold Coast City Council [2008] QPEC 33
Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13.
Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41
Kangaroo Point Residents Association v Brisbane City Council [2014] QPEC 64
Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302
Mackay Shopping Centre Pty Ltd v Mackay Regional Council [2013] QPELR 661
Main Beach Progress Association Inc v Gold Coast City Council 2008 QPELR 675
Parmac Investments Pty Ltd v Brisbane City Council & Anor [2008] QPELR 480
Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593
Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355
SDW Projects Pty Ltd v Gold Coast CC 2007 QPELR 24
Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPELR 468
Silverton Ltd v Maroochy Shire Council [1982] QPLR 182
Tanby Gardens Pty Ltd v Livingstone Shire Council [2007] QPEC 97
WBQH Developments Pty Ltd v Gold Coast CC 2010 QCA 126
Weightman v Gold Coast City Council [2003] 2 Qd R 441
Westlink Pty Ltd v Lockyer Valley Regional Council (2014) 198 LGERA 1
Wingate Pty Ltd v Brisbane City Council [2001] QPELR 272
Woolworths Ltd v Maryborough Regional Council (No 2) [2006] 1 Qd R 273
Zappala Family Co Pty Ltd v Brisbane City Council and Ors [2014] QCA 147COUNSEL:
P Hack QC for the appellant (directly instructed)
M Bizzell (president of the Coolum Residents Association Inc) for the second appellant
A Skoien for the respondent
D Gore QC with M Batty for the Co-Respondent
SOLICITORS:
Sunshine Coast Council Legal Services for the respondent
Connor O’Meara for the Co-Respondent
INDEX
Introduction
5
The Appeal
8
General Principles
10
The Issues
12
Construction of the Planning Scheme
18
Traffic and Parking
22
Overview
22
Identification of Traffic Issues
25
Analysis
27
Conclusion
31
Identification & Analysis of On-Site Parking Issues
31
Conclusion
35
Identification of On-Street Parking Issues
35
Analysis
37
Conclusion
39
Overall Conclusions
40
The Planning Scheme – more generally
41
Identification of the issues
41
Relevant Scheme Provisions
51
Analysis
79
Conclusion as to extent and nature of conflict
88
Grounds
91
Overall Conclusion
95
Introduction
[1] This is an appeal pursuant to s 462 of the Sustainable Planning Act 2009 (the “SPA”), against the decision of the Respondent Council (“Council”) to approve a development application (“the Development Application”) seeking a development permit to reconfigure a lot (1 lot into 44 lots) and a development permit for a material change of use (44 detached houses and 510m2 of shops), in respect of land situated at 1808 David Low Way, Coolum Beach (the “Subject Land”).[1]
[1]See the Development Application and Acknowledgment Notice, together with the Negotiated Decision Notice: Appeal Book (Ex 2), documents 6 and 7 (vol. 1) and document 27 (vol. 3).
[2] The Development Application proposes the reconfiguration of the single allotment, which includes the Subject Land, into 44 new allotments and proposes the construction and use of 43 two-storey buildings on the Subject Land. Thirty three of the new buildings would be used exclusively as dwelling houses. Each of the remaining ten buildings (the “SOHO Buildings”) would be used for both commercial use at ground level and residential use above. The Development Application also proposes the use of the forty-fourth allotment for the purposes of a swimming pool and communal open space. Access to the 44 new Lots is to be achieved by:
(a) An internal, two-way access road (“the Proposed Internal Road”), connecting thirty-three of the 44 Lots (including access to the Communal Facilities) to the existing road network; and
(b) Eight driveways directly servicing ten of the 44 Lots (including by the use of two shared driveways) from the existing road network;[2] and
[2]Although the proposal had been for 10 separate driveways.
(c) A pedestrian path running north/south through the Subject Land and connecting at each end with the existing road network.[3]
[3]See the plans of the Proposed Development at Book of Plans, Ex. 1, pp 8-40.
[3] The Proposed Development is to effectively replace previously approved development, being Stage 3 of a development known as “Element on Coolum Beach” and which involved provision for 96 multiple dwelling units (“the Element Stage 3 Development”). Stages 1 and 2 of Element on Coolum Beach (“Element Stages 1 & 2”) have already been developed, on the land fronting David Low Way. Prior to the development of this eastern portion of it, the land was used as a caravan park. On 6 November 2002, the Maroochy Shire Council gave approval (MCU01/0162) for the Element Development, comprising Stages 1, 2 and 3.[4] That approval was given under the 1985 town planning scheme. Stages 1 and 2 were subsequently undertaken and resulted in the three storey mixed use development: Element Stages 1 and 2, comprising retail spaces (banks, restaurants, clothing and other shops) at ground level, with apartments above and behind. The Element Stage 3 Development, as approved in November 2002 and changed, as to conditions, by further approval on 16 July 2003 (CCC03/0007),[5] comprised 96 accommodation units grouped within seven three-storey buildings. That development has never been undertaken and the balance of the land, comprising an area of 1.051 hectares out of the total area of the Subject Land of 1.815 hectares, has remained vacant.
[4]Appeal Book, document 28 (vol. 3).
[5]Appeal Book, document 29 (vol. 3).
[4] The Subject Land is located at 1808 David Low Way, Coolum Beach and is properly described as Lot 103 on SP 159953. The land is bounded by David Low Way to the east, William Street to the north, Heathfield Street to the west and Elizabeth Street to the south. To the east and fronting David Low Way, otherwise known as Coolum Esplanade, is the mixed use development comprising Element Stages 1 & 2. The adjoining land fronting Coolum Esplanade has been developed, to both the north and south, for various commercial purposes, largely with active street frontages (including the use of awnings, display windows and dining areas addressing pedestrian traffic, on the western side of Coolum Esplanade).[6]
[6]See the Land Use Map produced by Mr Perkins at page 8 of his trial report (Ex. 7).
[5] To the north, across William Street, and further north, across Birtwill Street, land has been developed predominantly for commercial purposes, including the larger-scale supermarket based shopping centre between Birtwill Street and Margaret Street. To the south, down to Beach Road, land has similarly been developed predominantly for commercial purposes and non-residential purposes (including the bowls club on the southern side of Elizabeth Street, the public car park south of Elizabeth Street and the collection of community facilities immediately west of that car park).
[6] As was clarified in the course of the hearing, whilst the development application has been styled as seeking approval to reconfigure 1 lot into 44, the obvious intention is to create 45 lots, including a separate lot upon which the Element Stages 1 & 2 development exists. The frontage to William Street directly relating to the Development Application, is unformed and is approximately 107m long. The frontage to Elizabeth Street is a similar length. The related frontage to Heathfield Road is some 96m long.[7]
[7]See the description of the land at Appeal Book, document 6 (vol. 1, p 27).
[7] Seven detached house designs are proposed comprising:
(a) SOHO + house – proposed Lots 1, 2, 3, 4, 9, 16, 22, 23, 24 and 25 ranging in size from 140m2 to 163m2 and comprising 51m2 ground floor retail space, double garage and, except in the case of proposed Lots 9 and 16, a single car space for the retail/commercial tenancy, and 3 bedroom dwelling house above;
(b) AGAVE – proposed Lots 7 (166m2) and 18 (171m2) comprising a three bedroom dwelling with single covered garage;
(c) PANDANUS – proposed Lots 6, 19, 31, 34, 36, 39 and 43 (manager’s unit), ranging in size from 142m2 to 161m2 and comprising a three bedroom house with double covered garage;
(d) ACACIA – proposed Lots 5, 8, 17, 21, 27, 28, 30, 32, 35, 37, 40, 41 and 42, ranging in size from 159m2 to 175m2 and comprising a three bedroom house with double covered garage;
(e) SEAGRASS – proposed Lots 12, 20, 26, 29, 33 and 38, ranging in size from 146m2 to 163m2 and comprising a three bedroom house and single covered garage;
(f) BANKSIA – proposed Lots 10, 13 and 15 (all 163m2), comprising a three bedroom house and double covered garage;
(g) FLAX – proposed Lots 11 and 14 (both 163m2), comprising a three-bedroom house and double covered garage.
[8] Lot 8 is to be accessed directly from William Street. Lots 9, 10, 11, 12, 13, 14, 15 and 16 are to be accessed directly from Heathfield Road and Lot 17 is to be accessed directly from Elizabeth Street. The remaining proposed lots are to be accessed from the internal road, with connection to William Street.
The Appeal
[9] The appeal is brought by submitters in the assessment made by the Respondent Council and the Co-Respondent is the developer, who seeks to uphold the Negotiated Development Approval, finally given by the Respondent on 21 December 2016. The notice of appeal was filed on 27 January 2017. In the hearing of the appeal, the Second Appellant played a lesser role and apart from calling two lay witnesses, simply sought to support or adopt the approach of the First Appellant.
[10] Although no objection or issue was raised in respect of the standing or entitlement of the Appellants to bring this appeal, some criticism is raised in the submissions of the Co-Respondent as to the extent of the evidence provided by them to the Court[8] and the absence of information as to “their reasons for participating in this appeal” or “their objectives as an organisation.”[9] Whilst it may be true that there is an absence of information as to the objectives of each of the Appellants, it is clear that each, as their name indicates, is an incorporated association[10] and has a statutory right of appeal pursuant to s 462 of the SPA, each having made a properly made submission about the development application.[11]
[8]The first appellant called a Town Planner, Mr Adamson, and the second Appellant called only two lay witnesses.
[9]Co-Respondents written submissions at [186].
[10]See Associations Incorporation Act 1981 ss 21 and 29.
[11]See s 462(1) and Schedule 3 (definitions of “application”, “person”, “properly made submission” and “submitter”) of the SPA. It was common ground that each had made such a submission. See Appeal Book, documents 10 and 11 (Vol 2).
[11] It is at least difficult to understand what relevance the contentions of the Co-Respondent may have in determining the merits of this appeal and in respect of which the Co-Respondent bears the onus of persuasion. Each of the properly made submissions of the Appellants sought to raise issues as to conflict with the planning scheme and on the hearing of the appeal, the First Appellant called an experienced town planner to support such contention. The Second Appellant relied upon some statements of lay witnesses, which ultimately may be seen, consistently with the absence of any attempt by either Appellant to rely on this material, in respect of the issues to be determined by the Court. In this context, the Co-Respondent also sought to point out that the only submitters objecting to the proposal during the public notification phase were the Appellants and that on the other hand, there were 186 submissions made in support of the proposal,[12] and that the development application attracted a letter of support from “Coolum Business and Tourism”.[13] Similarly to the Co-Respondent’s criticism of the position of the Appellants, that entity and its objectives are not otherwise identified, and the Co-Respondent acknowledges that the Court does not normally place weight on the number of individual statements or submissions.[14] In any event, there is little weight that could be given to the bare number of supportive submissions here, when it is noted that many of them contain such similarity of statement as to positive features of the proposal and which are reflective of evidence and contentions put forward by the Co-Respondent, so that the prospect of some common underlying motivation or campaign cannot be ruled out. There could be no suggestion of any abuse of process. However, in this context, the Co-Respondent only sought ultimately to engage the point noted in Kangaroo Point Residents Association v Brisbane City Council:[15]
[12]See Ex 16.
[13]Exhibit 2, Appeal Book, Volume 1, p. 349
[14]For example, see: Page Main Beach Pty Ltd v Gold Coast City Council [2011] QPELR 406.
[15][2014] QPEC 64 at [176].
“While “realistic” expectations do, to some extent, at least, depend upon the expectations of the local community, a selection of expectations of particular opponents to a development does not necessarily inform the true content of such expectations”.
As will be discussed further below and despite the submissions of the First Appellant in respect of the engagement of the concept of “reasonable expectations” in a subjective sense and as held by other landholders or residents in the vicinity,[16] the essence of the Appellant’s contention is that any sense of reasonable expectation as to the acceptable use of the Subject Land is to be found objectively and as Mr Adamson contends, upon the basis of maintaining consistency with the planning scheme.[17]
General Principles
[16]Reference is made to Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 342 at [40]: See first appellant’s written submissions at [123]-[127] and Co-Respondent’s submissions at [143]-[147].
[17]First appellant’s written submissions at [127] and respondent’s submissions at [2.18]-[2.22].
[12] Accordingly and pursuant to s 493(2) of the SPA, the onus is upon the Co-Respondent, as the applicant for development approval, to establish that the appeal should be dismissed.
[13] While the Development Application was lodged after Maroochy Plan 2000 (“MP2000”) ceased to have effect,[18] the Co-Respondent requested that the Development Application be assessed against that superseded planning scheme. Council agreed to accept the Development Application as a “development application (superseded planning scheme)” under the SPA and to assess the Development Application under MP2000.[19] Pursuant to s 315 of the SPA, Council was required to assess and decide the Development Application only against MP2000 (disregarding the subsequent planning scheme). And pursuant to s 495 of the SPA, this Court is similarly required to assess and decide the Development Application only against MP2000 (disregarding the subsequent planning scheme).
[18]The Sunshine Coast Planning Scheme 2014 commenced on 21 May 2014.
[19]See the Acknowledgement Notice at Appeal Book, document 7 (vol. 1, pp 350-4) and sections 95 and 96 of the SPA.
[14] As the appeal is by way of “hearing anew”, the assessment process and therefore potential issues are framed by s 314 of the SPA. This is because that section “applies to any part of the application requiring impact assessment”[20] and:
[20]S 314(1).
(a) the application sought development approval of two types of assessable development, being reconfiguring a lot and making a material change of use of premises (Detached House);[21]and
(b) MP 2000 requires impact assessment for each type of development.[22]
[21]See ss 7 and 238 and the definition of “assessable development” in Sch. 3 of the SPA.
[22]See s 232 of the SPA and MP2000, Vol 1 at p 33, Chapter 4.1(2) (Ex. 3, p 33). MP 2000; Vol 1 at p 93-99, Chapter 4.4 Table of Development Assessment for Material Change of Use in Centre Precincts – Village Centre (Ex. 3, pp 42-48) and Vol 1 at pp168-169 and 170-172, 5.4 Table of Development Assessment for Lot Reconfiguration – Centre Precincts (Ex. 3 at pp 96-97 & 99-100).
[15] The definition of “impact assessment” in Schedule 3 of the SPA is relevantly as follows:
“impact assessment means the assessment of the following by the assessment manager under section 314 …..—
(a) the environmental effects of proposed development;
(b) the ways of dealing with the effects.”
The term “environment” is also defined in Schedule 3, but in a non-exclusive manner:
“environment includes—
(a) ecosystems and their constituent parts including people and communities; and
(b) all natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony, and sense of community; and
(d) the social, economic, aesthetic and cultural conditions affecting the matters in paragraphs (a), (b) and (c) or affected by the matters.”
In this matter and as will become apparent, it is the environmental effects of the proposed development as referred to in sub-paragraphs (c) and (d) which are particularly engaged.
[16] Subsection 314(2) of the SPA lists the “matters or things” against which the application must be assessed. However in bringing this appeal and framing the issues to be determined, the Appellants do not suggest anything other than “a planning scheme” (s 314(2)(g) of the Act) as requiring consideration.
[17] Additionally, s 314(3) of the Act relevantly requires that the application be assessed “having regard to”:
(a) The “common material”, a term also defined in Schedule 3 and which includes, in addition to the material received in the IDAS process and any approval for the development that has not lapsed, “an infrastructure agreement applicable to the land the subject of the application”; and
(b) Any development approval for, and any lawful use of, the premises the subject of the application.
[18] Reference should also be made to s 326(1)(b) of the Act. It requires that the assessment manager’s decision must not conflict with a relevant instrument (eg; a planning scheme: see s 397(2)(d) and (5) of the Act) unless, relevantly, “there are sufficient grounds to justify the decision, despite the conflict”. The term “grounds” is defined in Schedule 3 as meaning, for the purposes of s 326(1)(b), “matters of public interest” but it “does not include the personal circumstances of an applicant, owner or interested party”.
[19] Conflict must be plainly identified.[23] In Woolworths Ltd v Maryborough City Council (No 2),[24] it was determined in respect of s 3.5.14(2)(b) of the Integrated Planning Act 1997 and in relevant respects the pre-cursor to s 321(1)(b), that
“’Conflict’ in this context means to be at variance or disagree with”.
[23]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 212 and Parmac Investments Pty Ltd v Brisbane City Council & Anor [2008] QPELR 480 at [20].
[24][2006] 1 Qd R 273 at [23].
[20] Also and for the Co-Respondent, it is correctly pointed out that it has been recognized that it is not the function of this Court to conduct an inquiry as to whether a better proposal might be possibly formulated or to insist that the land be put to better use, or to refuse an approval on the basis that a proposed use is not the best possible use of the land.[25] Rather and as noted in Wingate Pty Ltd v Brisbane City Council,[26] the Court is only required to determine whether the proposal before it is acceptable, having regard to the statutory constraints.
The Issues
[25]See: Heath & Anor v Gold Coast City Council [2008] QPEC 33 at [23] and the cases there referred to, and Silverton Ltd v Maroochy Shire Council [1982] QPLR 182 at 183F.
[26][2001] QPELR 272 at 276.
[21] Although the Co-Respondent bears the onus of persuading the Court that the proposed development should be approved, that is in the context that it has already been subjected to an assessment process and obtained the approval of the Respondent Council. Accordingly, the issues to be determined are typically informed by reference to that assessment, albeit that they may be enlarged upon in evidence given and submissions made to the Court and usually are primarily identified in the case presented by an Appellant. In this instance and although it may be noted that a wider ambit of issues was identified in the particulars provided by the First Appellant,[27] the issues requiring determination may be identified by first noting the contentions in the final submissions of the First Appellant.
[27]See Ex. 6.
[22] The First Appellant contends, broadly, that the proposal does not meet the expectation that land in the village centre precinct is to be used primarily for retail and commercial facilities, in order to meet the demand of residents and visitors and in providing the requisite certainty to developers, investors and the general public and in providing for expected growth as a tourist centre.[28] Although reference is made to authorities touching on the concept of satisfaction of the reasonable expectations of residence, as an aspect of amenity and thereby a relevant town planning consideration,[29] primary reliance is placed on the evidence of the town planner called by the First Appellant, Mr Adamson, as to such an expectation being based on consistency with the Retail and Commercial Centres Hierarchy and the Statement of Desired Precinct Character in MP2000 (the later statement being in s 3.11.4 of Volume 3 and relating to these specific precinct in which the land is located).[30]
[28]First appellant’s written submissions at [48].
[29]First appellant’s written submissions at [123]-[127].
[30]First appellant’s written submissions at [127].
[23] More specifically, it is contended that upon an overall assessment of MP 2000 and more particularly those aspects relating particularly to the Coolum Beach Planning Area and the Coolum Beach Village Centre, the proposal conflicts with the scheme in that:
(a) There is fragmentation of the Village Centre by the use of land available for commercial development;[31]
[31]First appellant’s written submissions at [61].
(b) It is not consistent with the desired character of the precinct or locality, particularly in that the proposal is not for the type or scale of development that is envisaged by the Code for Town and Village Centres;[32]
[32]MP2000, Vol 4 at pp 269-280, Chapter 5.1 (Ex. 3, pp 161-172).
(c) It does not meet the performance criteria of the Code for Reconfiguring a Lot[33] and particular attention is drawn to;
[33]MP2000, Vol 4 at pp 399-418, Chapter 8 (Ex. 3, pp 173-192).
(i) The proposal for a multiplicity of lots in sizes ranging from 140m2 to 175m2 (with road frontages of 10-11 metres), in the context of the provided acceptable measure of a minimum lot size of 1200m2 and minimum frontage of 40 metres, as not providing an environmental outcome that is consistent with the desired character of the precinct and the diverse and changing needs of the community;
(ii) The contended failure to safely and conveniently provide for the vehicular parking and pedestrian movement;[34]
[34]First appellant’s written submissions at [112]-[122].
(d) It does not meet the performance criteria in the Code for Transport, Traffic and Parking,[35] particularly as to:
[35]MP2000, Vol 4 at pp 111-126, Chapter 2.4 (Ex. 3, pp 145-160).
(i) Providing for both on-site and on-street parking; and
(ii) The location of driveways so as to minimise adverse impacts on the external traffic system, most particularly in respect of pedestrian movement[36].
[36]First appellant’s written submissions at [62]-[94].
[24] And it is further contended that there are no sufficient grounds warranting approval, despite such conflict.
[25] Whilst it will be necessary to come back to these contentions and the responses of the Respondents, in a more detailed discussion, for present purposes it suffices to note that the Co-Respondent broadly contends that:
(a) The proposed development is for an entirely appropriate use;
(b) No conflict with MP2000 arises; and
(c) Alternatively and if a different conclusion as to conflict with MP2000 is reached, there are sufficient grounds to nevertheless warrant the approval of the Court.
[26] The Respondent Council supported these contentions, including by placing particular emphasis on the absence of any conflict with MP2000,[37] which may be noted to be a departure from its earlier decision, in which it found grounds to approve the development despite identified conflict with MP2000. That is a consideration that necessarily detracts from the submission of the Co-Respondent that the fact of prior rigorous assessment and approval by a Council is a relevant factor of discerning weight in the determination to be made by this Court, at least as far as the determination as to any conflict with MP2000 is concerned.[38] And in any event and consistent with the de novo nature of the rehearing that is conducted in this Court, the real significance lies in the persuasiveness of any support lent by the Council in that rehearing. As observed by Robin DCJ in Mackay Shopping Centre Pty Ltd v Mackay Regional Council:[39]
“Although this appeal is a rehearing, in which the Co-Respondent must establish before the court a case for approval of its proposal (that is that the appeal should be dismissed), uninfluenced by the Council’s favourable determination, the Council is the planning authority, and its persistence in advocating strongly for the proposal in the appeal is a factor the court is entitled to take some notice of in line with certain judicial utterances ... A developer with council support would usually be in a better situation. Of course, what counts in the end is the persuasiveness of the Council’s case, from the standpoint of assisting the developer to satisfy the onus the developer bears.”
[37]Respondent’s written submissions at [1.36].
[38]Co-Respondents written submissions at [42(a)] and [45].
[39][2013] QPELR 661 at [44].
[27] In the circumstances of this case, it may be noted that the position taken by the Respondent Council in this appeal is different to that taken in the assessment phase. That phase was concluded by the negotiated decision notice issued on 20 December 2016.[40] That decision notice reflected the assessment as to the conditions of the approval after negotiations engaged as a consequence of the initial approval of the development application, given on 29 June 2016.[41]
[40]Appeal Book, document 27 (vol. 3, p 723).
[41]Appeal Book, document 16 (vol. 2, p 474).
[28] Each decision notice is indicative of an approval upon the finding of sufficiency of grounds despite conflict with the planning scheme. In each instance the notice contains the same statement of:
“15. REASONS/GROUNDS FOR APPROVAL DESPITE CONFLICT WITH SCHEME.
1. The previous approval for the Element utilised this vacant southern land for medium density residential purposes. The proposed changed is for a lower yield of medium density residential development.
2. The proposed residential development will introduce some additional floor space providing commercial uses, consistent with the intent of the planning scheme.
3. The current body corporate arrangements are highly restrictive and limit the achievement of the new planning scheme objectives.
4. The proposal is consistent with the originally approved land use, but simply achieves a lower yield of residential development.
5. The proposed development continues to account for the parking required in respect of the earlier existing stages of the Element development and which has been temporarily provided at grade on this vacant land.[42]
[42]Appeal Book, document 16 (vol. 2, p 492) and document 27 (vol 3, p 741).
[29] Although not expressly identified, in either notice, the perception of conflict with the planning scheme would appear to be reflected in the recommendation of the Respondent’s Senior Development Planner.[43] Leaving aside some matters that were made the subject of conditions of approval and in concentrating on issues that were agitated in this appeal, the following may be noted from the executive summary of that report:
[43]Appeal Book, document 15 (vol. 2, p 453).
“The land is located within the Village Centre Precinct in the Maroochy Plan 2000, which intends to be the core of the Coolum Beach tourist and business area and accommodate a range of business, retail, entertainment and community uses and provide a range of goods and services to the local population. The proposed development is a small lot residential sub-division containing only a small component of home offices and is inconsistent with the strategic intent of the planning scheme and the intent for the Coolum Beach Village Centre.
The proposed sub-division results in the fragmentation of centre zoned land with lot sizes that would be unsuitable for any other purposes over the long term. Therefore, the proposal would compromise the possibility of the land ever being able to be used for its intended purpose, to the detriment of the broader Coolum community into the future.
The development results in the loss of public on-street car parking and has not proposed to provide the parking (24 spaces) that is required on this land as a requirement of the Element approval.”[44]
[44]Appeal Book, document 14 (vol. 2, p 454).
[30] As far as the references to the Element or pre-existing approval for the third stage of that development and the conditions in respect of the provision of car parking therein is concerned, it is only necessary to note that the materials relating to the negotiated decision notice disclosed that:
(a) Negotiations occurred in relation to a requirement of that pre-existing approval, which in effect required the provision of “23 visitor parking spaces…located in the undercover basement” to “remain as common property in the ownership of the body corporate”. And for the facilitation of the staging of the development, further allowed that: “temporary on-site car parking is permitted”;[45]
[45]See Notice: Change to or Cancel Conditions, dated 16/07/2003, conditions 10B and 11, at Appeal Book, document 29 (vol. 3, pp 811-12).
(b) Some further context is to be found in indications from those acting in the interests of the existing body corporate for the Element Stages 1 and 2. Those indications were as to views as to the absence of impetus, since 2003, towards moving to stage 3 of that approval, despite various changes of ownership of the site (including as to opined infeasibility issues) and the need for separation of a distinct development on the balance of the land and if necessary, a separate building management statement or community management statement. In addition, there were firmly indicated objections to any emphasis on or significant “retail” development on the balance of the site;[46]
[46]Appeal Book, document 25 (vol. 3, pp 702-4).
(c) The ultimate resolution of this issue effectively lay in the following steps:
(i) Conditions in the approval requiring the submission of any proposed community management statement, for endorsement by the Council “at the same time as submission of the sub-division plan to council for compliance assessment;[47]
[47]See conditions 9 and 10 in both the approval granted on 29/6/16 (see Appeal Book, document 16 (vol. 2, p 476)) and the negotiated approval granted on 20/12/16 (see Appeal Book, document 27 (vol. 3, p 727)). It would appear that the particular need for a community management statement may be related to the proposed internal common property, which allows for the internal road and the proposed swimming pool and related facilities.
(ii) After negotiations in respect of adjustment as to the requirement for visitor carparks, in consequence of the scale of the development then proposed for the balance of the site,[48] on 9 December 2016, the execution of a deed by Cube Develop Pty Ltd trading as Cube Developments, the Co-Respondent Yakola Parade Pty Ltd as trustee for the Elizabeth Street Development Trust and the Respondent Council (“Infrastructure Deed”), in respect of payment of infrastructure contributions for car parking and requiring the payment to Council of a contribution in the sum of $266 000, for the “short fall of 7 car parking spaces provided in the development application;”[49]
[48]Such recalculation being expressly allowed by condition 11 of the pre-existing approval: see Appeal Book, document 29 (vol. 3, p 81).
[49]Appeal Book, document 26 (vol. 3, p 705).
(iii) The approval, on 22 December 2016, by the Respondent Council of a request to make a change to the existing approval, to add the following to cl 11:
“Counsel may consider the payment of an agreed monetary contribution in lieu of the provision of car parking as part of the future assessment of any changes to the proposed staging and configuration of the development”.[50]
[50]Appeal Book, document 31 (vol. 3, p 847).
[31] Although and as will be seen subsequently, the submissions for the First Appellant seek to refer to this context, in respect of the impact of the proposed development as far as car parking in the Coolum Village Centre Precinct is concerned, it is otherwise, correctly, pointed out for the Co-Respondent, that both the joint expert reports on traffic and also town planning issues make reference to the original requirement of the existing approval and that the Court is aware that those contextual agreements and decisions were made the subject of a separate originating application by the Appellant,[51] which has been discontinued. Although it will be necessary to return to the submissions for the First Appellant as to an effect of this context as an impact of the proposed development, it may be noted that, as submitted for the Co-Respondent, there remains no other relevance in the contextual agreement and decision.[52] And as pointed out for the Respondent, with the determination of the application for change to the pre-existing approval, there remains no issue as to any potential conflict of the proposed development and that pre-existing approval for the site.[53]
[51]Ex. 17.
[52]Co-Respondent’s written submissions at [181].
[53]Respondent’s written submissions at [2.3].
Construction of the Planning Scheme
[32] As was most recently confirmed by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council and Ors,[54] the usual principles of statutory construction are applicable to the interpretation of construction of planning schemes. In particular, the following extracts from Project Blue Sky Inc v Australian Broadcasting Authority,[55] were approved:[56]
[54][2014] QCA 147 at [51]-[52].
[55](1998) 194 CLR 355 at [69]-[71], [78] (footnotes omitted).
[56]Zappala Family Co Pty Ltd v Brisbane City Council and Ors [2014] QCA 147 at [52].
“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”
…
[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …”
[33] In Zappala, it was then further observed:
“[53] This Court, in AAD Design, endorsed that ‘the established principles and canons of statutory construction should be applied’ when construing planning documents.
[54] Chesterman JA took the same view, adding:
“[37] The starting point in the task of construing statutes and like instruments remains, I think, that explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-5:
‘It is an elementary and fundamental principle that the object of the court, in interpreting a statute, “is to see what is the intention expressed by the words used”: River Wear Commissioners v Adamson. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v JH Nelson Pty Ltd. Of course, no part of a statute can be considered in isolation from its context – the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking “nothing remains but to give effect to the unqualified, words”: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union. There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Ltd … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature.”
[55] The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the “modern approach to statutory interpretation …(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense ...”
[56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.
[57] As was said by Chesterman JA in AAD Design:
“Planning schemes, and the definitions found in them, often lack clarity, contain ambiguities and sometimes appear contradictory. The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation. Nevertheless, Mr Hinson submits that the court should approach the task of construction in the manner described by Thomas J (with whom Ryan and McKenzie JJ agreed) in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360:
“To arrive at the so-called proper construction of such provisions involves a good deal of guess-work. In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well as obscure (cf. Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157, 162; Brown v Idofill Pty Ltd (1987) 64 LGRA 218, 227; Tainui Pty Ltd v Brown (1988) 65 LGRA 22, 27).”
[58] However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC.”[57] (citations omitted).[58]
[57]Zappala Family Co Pty Ltd v Brisbane City Council and Ors [2014] QCA 147, at [53]-[58].
[58]See AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1.
[34] An essentially consistent conclusion was expressed in Luke & Ors v Maroochy Shire Council & Westpac Developments:[59]
“The proper method of construction is that adopted in the authorities set out above, involving identification of those parts of the planning scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole, and, by that process, to discover whether or not the proposed development accords with the scheme.”
[59][2003] QPELR 447 at [60] and in respect of an analysis of the same planning scheme.
[35] As may be discerned from the outline of issues above, the appropriate construction of the planning scheme and the determination of any conflict with the scheme, is critical to the determination of this matter. It is convenient to first consider that question in respect of the issues identified in relation to traffic and parking.
Traffic and Parking
Overview
[36] The issues raised in respect of traffic and parking impacts of the proposed development involved reference to the Code for Transport, Traffic and Parking, in MP 2000,[60] and in particular:
[60]First appellant’s written submissions at [62]-[66].
(a) The following statements of purpose in s 2.4 of that Code:[61]
[61]MP2000, Vol 4 at p 111, Chapter 2.4 (Ex. 3, p 145).
“(b) Achieve safety for all road users, particularly for the most vulnerable road users (children, pedestrians and cyclists), taking account of society's reasonable expectations;
……
(d) Ensure that development does not unreasonably compromise the capacity and legibility of the road and street system or diminish the amenity of nearby land uses; and
(e) Achieve on-site parking, access, circulation and servicing areas that are safe, convenient and sufficient to meet the needs of expected users, with minimal impact on the external road and street network or adjacent sites.”
(b) Some aspects of the performance criteria and noted acceptable measures for the stated purposes, in particular noting that site access requirements performance criteria P2[62] requires that “driveways are located so as to minimise adverse impacts on external traffic systems”, with an acceptable measure described as:
[62]MP2000, Vol 4 at p 114, Chapter 2.4(3) (Ex. 3, p 148).
“A2.1 The number of site access driveways is minimised (usually one), with access to the lowest order road to which the site has frontage, consistent with amenity impact constraints, and located in accordance with the requirements of planning scheme policy No. 6-transport traffic and parking”.
(c) It is also pointed out that performance criteria P2 provides, under the heading “(5) Pedestrian Facilities”,[63] that provision be made:
[63]MP2000, Vol 4 at p 115, Chapter 2.4(5) (Ex. 3, p 149).
“for the safe and convenient movement of pedestrians on-site and between public pedestrian facilities and on-site activity nodes”.
And in respect of car parking, it is noted that the code prescribes performance criteria as follows:
“P1 on-site car parking areas are provided with adequate capacity to accommodate peak parking demands;
“P2 carparks and their site access systems must be designed to provide safe and convenient parking and circulation for all the different users of the facility;”[64]
(d) It is also noted as common ground that Schedule 2 to the Code[65] details the minimum on-site car parking requirements as respectively requiring two spaces per dwelling or detached house (which may be provided in tandem) and that shops require one space per 20m2 of gross floor area and additionally that planning scheme policy No 6 requires that on-street parking must be provided at a minimum of two spaces per three detached dwellings[66].
[64]MP2000, Vol 4 at p 117, Chapter 2.4(7) (Ex. 3, p 151).
[65]MP2000, Vol 4 at p 120, Chapter 2.4 (detached house) (Ex. 3, p 154), Vol 4 at p 122, Chapter 2.4 (shop) (Ex. 3, p 156).
[66]MP2000, Appendices, Maroochy Shire Planning Scheme Policy No. 6 at p 171 (Ex. 3 at p 242).
[37] The submissions of the Co-Respondent point out the reality that the expert evidence on traffic engineering issues and these matters generally, as adduced for the Respondents, is not, unlike the evidence from town planners in this case, contradicted by any such evidence called by the Appellants. But and as is correctly contended for the First Appellant, the question is as to whether the Court accepts any part of that evidence and then what benefit is obtained in the Court’s assessment as to whether any conflict with the relevant aspects of the planning scheme, is established.
[38] In any event, it may be noted that there are differences that emerged in the evidence of each of the Respondent’s experts, on matters that are in issue and that there are a number of valid criticisms raised for the First Appellant as to the evidence of the expert called by the Co-Respondent: Mr Viney. Some of those will be touched upon in due course, but for present purposes it may be noted that Mr Viney’s evidence came without the benefit of some of the detailed analyses included by way of the traffic and car parking survey, as undertaken by Mr Pekol, notwithstanding that Mr Viney ultimately had access to that material. As will be noted, Mr Pekol, the expert called by the Respondent, has in contradiction of some of the views expressed by Mr Viney, identified some short comings in compliance with some of the noted requirements of the planning scheme, but has proposed options as acceptable solutions, which in each case are accepted by the Co-Respondent as appropriate conditions of any approval grated by this Court.
[39] Moreover, Mr Viney’s evidence presented an appearance of greater generalisation and less consideration of detail, as might be explained by his references to having limited time in the preparation of his report after returning from being overseas.[67] For instance and unlike Mr Pekol, he had little practical understanding of the relative traffic demands of the street network around the proposed development and had only attended to inspect the locality, on a Sunday about 2 weeks before giving evidence.[68] Accordingly, it would not be appropriate to give any substantial weight to the evidence of Mr Viney, at least in preference to that of Mr Pekol and particularly where there are departures from that evidence. And even in respect of matters where they are in agreement, it may be appropriate to primarily have regard to and assess the evidence of Mr Pekol.
[67]T2-15.37 and 2-16.26.
[68]T2-14.25-2-15.2.
[40] The submission for the First Appellant sought to implicitly engage the evidence of Mr Adamson by drawing attention to the explicit assertion in the Statement of Desired Precinct Character for the Coolum Beach Village Centre Precinct, at s3.11.4 of MP 2000, that:
“Vehicular parking is a major issue in this Precinct”.
[41] By contrast, the Co-Respondent contends that in the context of the evidence of the traffic experts, “the appellants’ case on traffic issues evaporated” having regard to Mr Adamson’s concession “that he would defer to the traffic engineers on traffic engineering issues”.[69] However, that aspect of Mr Adamson’s evidence should be noted in full context:
[69]Co-Respondent’s written submissions at [149].
“If we go to your individual statement, exhibit 10, to page 15, you there deal with the provision of parking, correct? Yes.
And as a general proposition, in the practice of your profession, you would defer to a competent traffic engineer on these issues? Yes.
And you’re well familiar with Mr Viney as a competent traffic engineer? Yes, I am.
And you’re well familiar with Mr Pekol as a competent traffic engineer? Yes.
And do you accept that, being an independent expert, you would say to his Honour in these proceedings that you would defer to the opinions of each of those gentlemen? Cer – cer – yes, I would, certainly in – in terms of – of traffic impacts, required car parking numbers and things certainly of a traffic engineering nature. But – but as a town planner, I’ve still got some concerns about the configuration of the development on the land and – and – and the loss of public parking, taken up by some of the driveways, really because of the nature and type of the use of the land.
Well, you accept in the body of your individual statement that with Mr Pekol’s changes, there is compliance with the requirements of MP2000 about the number of spaces that ought to be provided? Overall, that’s correct, yes.
Yeah. So when, in your statement at page 16, in paragraph 67, in the third-last line, you speak of an overall loss of eight parking spaces, what you really mean to say is that with a different design, there could have been eight further on-street spaces; isn’t that a more accurate way of putting your position? That’s – that’s correct, yeah. That’s correct.”
Identification of Traffic Issues
[42] Ultimately, in respect of traffic issues, and whilst there was no abandonment of the general expression of concerns as to impact on general vehicular movement on and into the local streets and particularly Heathfield Road, the particular emphasis in the Appellant’s submissions was in relation to impact on pedestrian safety and particularly in terms of the provision for direct vehicular access to the lots fronting Heathfield Road. The point is exemplified by noting another of the First Appellant’s valid criticisms of the evidence of Mr Viney. That is, in his conclusion as to the proposed design being consistent with normal property access in residential areas:
(a) First this was premised on reference to the overall frontage length of the Subject Land proposed development being 300 metres, when as pointed out for the First Appellant, the particular concern is with the collection of driveways in Heathfield Road and over a frontage of approximately 91 metres.[70] That is, as proposed, 8 driveways giving access to 15 parking spaces for proposed lots 9 to16.[71] Also and as noted in respect of another validly criticised contention by Mr Viney, there is capacity in the other instances for additional car parking for lot occupants in those areas external to the double car ports, on each lot. Otherwise it may be noted that there are only two further lots with proposed driveway access directly to the street network. That is lots 8 and 17, being, respectively, the lot in William Street and Elizabeth Street, closest to the intersection with Heathfield Road;
[70]Ex. 4 at [9].
[71]Each lot provides for a double car port or two car parking spaces, except for lot 12 where the proposal is for the second space to be by tandem parking in the area external to the incorporated carport but not on the adjacent footpath or driveway.
(b) Secondly, it is correctly contended that this is not a proposal for development in a residential area as contemplated in the scheme, notwithstanding the residential aspects of it. However that contention is complicated by understanding that the Heathfield Road frontage of the Subject Land constitutes the western boundary of the Coolum Beach Village Centre Precinct, at that location, and that the boundary continues in an easterly direction at the corner and along the frontage of the Subject Land in Elizabeth Street, until it precedes Southwood and immediately adjacent to the Coolum Beach Bowls Club and along the western boundary of that property. Further and whilst the position is different on both sides of Heathfield Road, between Williams and Birtwill Street, on the opposite side of Heathfield Road to the Subject Land, and whilst there remains some obvious past residential development, there is related indicia of commercial uses of those properties. However and in Elizabeth Street and on the southern side, to the west of the bowls club, there is distinctly residential development constituting the border of development which is continued in both directions and on the northern side of Elizabeth Street, to the west of Heathfield Road, the same observation applies, once an observer moves past the immediate uses as churches.
Analysis
[43] These concerns are not to be lightly dismissed. Whilst it is a local road and not in the nature of a thoroughfare for traffic, such as the nearby David Low Way or Coolum Esplanade, it is correct to note that Heathfield Road, in particular, provides a significant link with other parts of the locality and particularly between Elizabeth and Birtwill Streets, with the latter street evidencing substantial aspects of concentration of commercial development. That includes a major supermarket and shopping complex, which development has occurred within the Coolum Beach Village Centre Precinct. And there is separate commercial development both to the east and west of Heathfield Road, on the southern side of Birtwill Street.
[44] Also, some recognition of the issue is reflected in the proposal of Mr Pekol, which is accepted by the Co-Respondent as a modification to be subject of a condition to any approval, to reduce the number of separated driveways on Heathfield Road from eight to six. That is to be achieved by having combined driveways for respectively lots 12 and 13, and lots 14 and 15. Whilst it is correct to point out that this proposal does not address the potential number of vehicles that may be driven across these driveways, nor the extent to which the footpath has driveways which may be traversed by those vehicles, Mr Pekol’s explanation for this should be noted. First, there was the following evidence in chief:
“Now, in paragraph – dealing with the issue of pedestrians, paragraph 68 of his report, exhibit 10, Mr Adamson expresses some views about the combining of crossovers in Heathfield Street to provide a crossover for, in effect, two dwellings rather than just the one?‑‑‑Yes.
Is that something which you consider to be, firstly, a negative aspect of the proposal or neutral or otherwise?‑‑‑No. In fact, the recommendation was put forward so that the application could comply more fully with the planning scheme. The planning scheme’s quite specific about providing the opportunity to joint or aggregate driveways, where they’re very close to one another. And I guess the logic behind that, from a traffic engineering perspective, is that it sends a clearer message to pedestrians that they – that they have a driveway – a single wider driveway to cross rather than two narrower driveways. And keeping in mind also that the recommendation only applies to two driveways and the net result is a reduction in the number of driveways in Heathfield Street – Heathfield Road. Sorry.
Now, in terms of the number of driveways and obviously the consequent use of the driveways by vehicles, as we know, in a reversing gear from both locations, does that cause you any concern as a traffic engineer in terms of movements, either pedestrians or vehicles in the – either Heathfield Street or in Williams Street and Elizabeth Street in those instances?‑‑‑No, that’s a typical arrangement for how vehicles enter and exit detached dwellings. It would be very rare, particularly on small lot sizes like this, to have the sort of facility where vehicles would be able to turn around on-site and drive out forward…”
Then in cross-examination, there was the following exchange:
“But of those 10 points, many of them would be adjacent to each other, wouldn’t they?‑‑‑No, well, that was the whole idea of amalgamating the ones that – that I recommended. Because in those – for those two pairs of units in the approved plan, the driveways for those pairs of units were so close together that it made more sense, from a traffic engineering perspective, to amalgamate them into one, rather than keep them as two separate driveways that might’ve only been a metre apart.
But I just don’t understand what difference it makes if the volume of traffic’s going to be the same. There’s a smaller driveway – a smaller width of driveways over the whole of the street. You accept that?‑‑‑Yes.
Why does that improve safety?‑‑‑Okay. So that improves safety for two reasons. In terms of pedestrians, by having a narrower – a single, narrower driveway, rather than two wider ones, it minimises the pedestrian crossing distances across the driveways, so it minimises the time that – think of – this way. it minimises the time that the pedestrians are actually on the driveways if those – if those driveways are narrower. So that’s the first benefit. And the second benefit is, as I was trying to explain – maybe I haven’t – I haven’t explained it properly. Put it this way. If we could amalgamate all the 10 driveways into one driveway, then the same number of cars would out of one driveway and meet the traffic on Heathfield Road at a single point. I guess that would be almost the ultimate in terms of traffic safety.
That’s what was in the original stage 3 element. The single exit and entrance?‑‑‑Yeah. Possibly. Of course, the – the – the best way to guarantee traffic safety is not to have the access at all, and we all walk and cycle everywhere, but given that we have to accommodate these cars somewhere, we have to find a – a solution that – that provides an acceptable level of – of safety, and by combining the driveways for the – the two pairs of – of – of units, we’re able to reduce the number of conflict points from 10 to 8. So they’re – they’re the two benefits.”
[45] The Co-Respondent points to authorities which have noted the difficulty of an approach to traffic arrangements that tends towards achievement of perfection or best outcome, rather than arrangements that are reasonable or acceptable.[72] More specifically and importantly, it may be noted that such an approach is expressly encompassed within those aspects of the planning scheme upon which the Appellants place reliance and by reference to which the Appellants seek to establish conflict. For instance, the need to meet “reasonable [societal] expectations” in respect of the safety of road users and the need to ensure that development “does not unreasonably compromise the capacity and legibility of the road and street system”.[73]
[72]Co-Respondents written submissions at [167]-[169]. See: Jedfire Pty Ltd v Council of the City of Logan and White [1995] QPLR 41 at 43, Parmac Investments Pty Ltd v The Brisbane City Council [2008] QPELR 480 at [16], Serbian Orthodox Church School Congregation Sveti Nikola v Brisbane City Council [2012] QPELR 468 at 474 K and Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593 at [20]-[22].
[73]MP2000, Vol 4 at 111, Chapter 2.4 (Ex. 3, p 145).
[46] Moreover, there is the need to have regard to the effects or impact of the whole proposal, notwithstanding that an important feature of it may be the frontage of the Subject Land to Heathfield Road. As both Respondents correctly point out, the evidence of both Mr Viney, and more particularly Mr Pekol, recognizes that the conditions of approval for the development will have the significant consequence of the provision or construction of pedestrian pathways surrounding the Subject Land and as well a pedestrian walk way through the Subject Land connecting William and Elizabeth Streets.[74]
[74]Co-Respondent’s written submissions at [157] and Respondent’s written submissions at [2.12]-[2.13].
[47] It should also be noted that the views expressed by Mr Adamson as to traffic and parking issues, from a town planning perspective, are encapsulated in the following passage in his separate statement to the Court:[75]
[75]Ex. 10 at [67]-[70].
“67. Under Part 3.11.4, it is specifically stated that vehicular parking is a major issue in this Precinct. There is a recognised need for public parking, providing it does not interrupt views to the beach and is designed to be unobtrusive from the street. In my opinion, these are unusual site specific provisions to be included in a planning scheme, which highlights the importance of this issue at this location. It is suggested that given the overall loss of 8 parking spaces due to the access driveways, this is likely to worsen the provision of public parking in the locality, which is contrary to the planning scheme (Part 3.11.4).
68.It is also noted that at TEJER 16, additional design changes have been suggested to some of the access driveways serving the Detached Houses, as shown shaded on TEJER Appendix C. In my opinion, this worsens the streetscape appearance of the development given the combined driveways for Lots 12 & 13 and Lots 14 & 15. This results is(sic) in a continuous span of concrete of about 9m in width at the boundary, which is akin to an industrial or commercial development. This is caused by the nature and type of the development, being for small lot housing comprised of 43 Detached Houses on 43 separate allotments, each having individual access points, either internally or externally. This is not the type of development expected in the Village Centre Precinct, which would have limited access points and at ground or basement car parking.
69.In contrast, the approval Element Stage 3 Development provides for an integrated access and basement car parking system with Stages 1 & 2, while providing 96 Accommodation Units. Under this approval, the density is more than double the current proposal and there is no increase in the number of driveways. This is because of the integrated nature of the Element Development as a whole, which utilises the existing access driveways for Stages 1 & 2, located in William and Elizabeth Streets. Under this scenario, there is no loss of on street parking fronting William Street, Heathfield Road and Elizabeth Street. From a town planning perspective, this is more desirable in terms of limiting access points and maintaining public parking. Further, the basement parking can be used by visitors and patrons in an integrated manner.
70. In my opinion, the proposed development will have a significant adverse impact upon public parking and is not a desirable town planning outcome for land included in the Village Centre Precinct.”
[48] Accordingly, it may be seen that apart from noting the incidental consequence of some multiplicity of driveway access to the surrounding streets because of the small lot nature of the proposal and the purported relationship of this consideration to his view as to this not meeting expectation as to type of development in the Village Centre Precinct, a particular focus is upon the undesirable town planning outcome in terms of what was stated to be “a significant adverse impact upon public parking”.
Conclusion
[49] In the context of the evidence before the Court, it should not be concluded that the proposed development, including the design of Heathfield Road frontage, does not meet reasonable societal expectations as to safety for road users, including pedestrians, or unreasonably compromises the capacity or legibility or the local road and street system, or that the location of the driveways as proposed by Mr Pekol is not such as to minimise the adverse impacts on external traffic systems, in the context of the development as proposed.
Identification and Analysis of On-Site Parking Issues
[50] The issues raised in respect of parking relate to both on-site and on-street parking and in the first instance are framed by Mr Adamson’s identification of some short comings:[76]
[76]Ex. 10 at [59]-[66].
“59. Since the preparation of the JER, I have been provided with and reviewed the JER prepared by the traffic experts (TEJER). The traffic engineers have agreed (TEJER 20) under the Code for Transport, Traffic and Parking (Part 2.4) the development is to provide:
· Detached dwellings: 43 dwellings x 2 spaces per dwelling
= 86 spaces;
· Shop: 510m2 x 1 space per 20 m2 = 25.5 or 26 spaces;
Consequently, the proposed development is to provide a total of 112 spaces.
60. The proposed development currently provides for 111 car parking spaces (TEJER 22); however the majority of these spaces (91) are provided for the Detached Houses, a number of which are in tandem and could only be used with the Detached Houses. Consequently, the spaces are not allocated on the land in proportion to the demand of the uses being proposed, which is acknowledged by Mr Viney at TEJER 22.
61. With respect to the individual shop components, 1 additional space is provided for 8 of the proposed shops on Lots 1-4 and Lots 22-25 (SOHO A & B), refer Attachment 1. However, no additional parking is provided for the shops on Lots 9 & 16 (SOHO C) (Attachment 1). In effect only 8 spaces are provided for the 10 shops. A further 12 visitor spaces are provided internally to the development as a whole. Consequently, even if all of visitor spaces provided are taken up by the shop component, there is a shortfall of 6 spaces for the shop component.
62. Mr Pekol seeks to remedy this situation (TEJER 21) by providing an additional 8 on-site visitor spaces, on the internal ring road, but located over the proposed bio-retention swale area of the development, shown in green on Appendix C (TEJER). From a stormwater management perspective it might be of some concern that a substantial portion of the internal bio-retention swale system will now to(sic) be used to provide an additional 8 visitor parking spaces. While this increases the total number of carparks provided internally to the development, in my opinion this does not overcome the parking issue associated with the shops on Lots 9 & 16 (refer SOHO C-Attachment 1) and availability of parking for the shop component, given the nature of the development, with the parking being located within a private residential housing development.
63. In my opinion, the majority of visitor spaces provided internally to the proposed small lot housing development, will be utilised by residents and their visitors, given the development proposes a private internal rode, as labelled on Attachment 1. While the total number of parking spaces provided (TEJR Appendix C) might technically meet the requirements under Schedule 2 of Code 2.4, minimum on site car parking requirements, the allocation of the spaces is not proportionate to the location of the uses on the subject land.
64. Of particular concern, no spaces are provided on site for the proposed shops on Lot 9 & 16 (SOHO C), with 2 spaces being provided for the Detached House. It is not appropriate that the operator of the shop and or patrons park in tandem behind the parking spaces for the Detached Houses. Further, there is no internal access provided from the visitor parking to these Detached Houses (Lots 9 & 16). Consequently, the operator and or patrons of the shops (SOHO C), would need to park internally to the development in one of the visitor spaces and then walk out of the site onto the public roadway to access the shops. From a town planning perspective this is not an appropriate town planning response for a new retail and commercial development located in the Village Centre.
65. At TEJER 23, the traffic engineers have undertaken an on street parking survey on the 21st and 22nd April 2017. It is noted that the surveys were not undertaken during a peak holiday period and is not necessarily a reflection of the peak holiday demand period for the locality.
66. Under part 4.12 of the Planning Scheme Policy No. 6, on street parking is to be provided at a minimum rate of 2 spaces per 3 Detached Houses. This equates to an additional 29 on-street spaces. While it is acknowledged that the amended proposal plan shows 31 on street spaces (TEJER – Appendix C) this does not account for the loss of the on-street parking fronting the development, which currently amounts to 39 existing spaces.”
[51] The submission for the First Appellant as to a conclusion that the on-site parking requirements of the Code for Transport, Traffic and Parking are not satisfied, is as follows:[77]
[77]First appellant’s written submissions at [75]-[82].
(a) Whilst it is accepted that Mr Pekol has correctly identified the requirement for a total of 112 on-site car parking spaces and also the requirement of 86 of those spaces for the 43 detached dwellings, that leaves only 20 visitor car parking spaces to meet the required provision of 1 such car parking space for each 20m2 of gross shop floor area, [78] and therefore, as further correctly identified by Mr Pekol, a shortfall of 6 such spaces;
[78]Ex. 1, Doc. 7, p 8. Noting the spaces marked V1-V12 and 8 additional spaces adjacent to and behind each of the SOHO Lots 1-4 and 22-25, respectively.
(b) In that regard a particular and validly criticised aspect of the evidence of Mr Viney, is that he purported to identify the provision of 111 on-site car parking spaces, but upon a potentially unrealistically assumption that an additional 5 such spaces are to be found in a tandem situation in front of the garages for Lots 9-14, [79] on the Heathfield Road side at the site. Such an expectation is not only inconsistent with the approach of Mr Pekol, but also assumes the availability of such space on what is proposed to be separately owned and used dwelling lots, except perhaps in respect of the SOHO Lot 9, where there is also at least the prospect of separate occupation rights as to the residential and commercial components. In any event, the position of the Co-Respondent is acceptance of Mr Pekol’s position and his proposal to site an additional 8 visitor car parking spaces adjacent to the internal road on the site, as a condition of approval;[80] noting also Mr Pekol’s additionally accepted proposal of conversion of the space that had been marked V5 in exhibit 1, document 7, p8, so as to provide for the requirement of 1 disabled parking space. Further and in support of the viability of that proposal, reliance is placed on the statement of an engineer, to confirm an expectation that the proposed reconfiguration can be achieved, in the operational works application, as a certifiable design outcome as to the integration of the additional parking and the pre-existing design intent of use of that part of the site for a joint water quality/on-site detention facility;[81] and
[79]As represented in exhibit 1, Doc 7, p 8.
[80]These are respectively marked as V21-28 in Ex. 1, Doc. 6, p 7.
[81]Ex. 15.
(c) In this context, it is then contended that:
(i) A fundamental problem which is thereby demonstrated is the eliding of the two quite different proposed uses, for detached dwellings and shops, in the provision of a combined requisite total of car parking spaces;
(ii) That the particular difficulties in respect of the visitor car parking spaces referable to the shops, is that they are accessible only from the internal road, when the frontage of the shops is to the surrounding streets and that no specifically related such spaces are provided for the SOHO Lots 9 & 16 (as they are respectively located on the intersections William and Elizabeth Streets with Heathfield Road). The contention is that this is an unsatisfactory and practically unrealistic proposal, as described by Mr Adamson and in terms of expectation of utilisation of use by visitors to those shops and particularly those in the SOHO Lots 9 & 16; and
(iii) The proposed solution is only based upon the stated “expectation” of the engineer, Mr Green, that a “suitable design outcome” will be achieved.
Conclusion
[52] As to the last contention, it need only be noted that the Co-Respondent’s concession is as to the acceptance of a condition of the approval, which will necessarily be as to satisfactory achievement of the necessary outcome and at this stage, the relevance of Mr Green’s evidence is to demonstrate only the feasibility of such an outcome. The proposed visitor carparks are sufficiently proximate to the locations they are intended to support and it is not a question as to whether or not they are optimally so located.
[53] Again and in the context of the development as proposed, it should be conclude that no particular conflict nor unacceptability of outcome is proposed, as far as on-site parking is concerned.
Identification of On-Street Parking Issues
[54] In relation to the issue of on-street parking, the First Appellant’s submissions commence with reference to the acknowledgment in MP2000, at 3.11.4, that, “vehicular parking is a major issue in this Precinct.” The particular consideration noted by Mr Adamson, effectively as to the reduction of the total available area for car-parking along the street frontage, largely consequential to the proposed driveways, is sought to be supported by reference to the report of the Respondent’s Senior Development Planner, prepared prior to the decision notice dated 29 June 2016, as follows:
“The current site has 12 delineated on-street car parking spaces along Heathfield Road, and unmarked on-street parking along Elizabeth Street (approximately 12 spaces) and Williams Street (approximately 15 spaces). There is also an existing onsite car park of about 27 spaces. This totals approximately 66 spaces. As a result of new driveways, the site entrance, and the loss of the onsite carpark, the proposed development would reduce this parking to the following: 5 spaces on Heathfield Road, 6 spaces on Williams Street and approximately 14 (unmarked) spaces on Elizabeth Street, resulting in a total of 25 on-street spaces. Overall, this would result in a loss of approximately 41 public parking spaces (14 of those on the street) in Coolum’s village centre.”[82]
[82]Appeal Book, document 14 (vol. 2, p 466); noting that the reference to the existing on-site carpark area of about 27 spaces, is acknowledged to relate to the provision of a temporary parking arrangement in accordance with the pre-existing approval for stage development of the Element site, prior to the approved changes that have been noted above in para [30].
And also by reference to a draft local area parking plan, published by the Respondent in March 2017 and which included apparent results of some prior analysis of parking occupancy in and around the Coolum Beach Village Centre Precinct.[83] The following submissions were made:[84]
“(85) Neither Mr Viney nor Mr Pekol suggested that this ‘major issue’ had eased since then. On the contrary, the council’s own study (Exhibit 13) suggested that Heathfield Road in the vicinity of the proposed development was operating at 90-100% capacity during weekdays and that on-street car parking in William Street is little better.
(86) The survey undertaken by Mr Pekol confirms that view. Despite its obvious shortcomings, it demonstrates that demand for parking in the adjoining streets will exceed supply even without consideration of any demand created by the proposed development.”
[83]Ex. 13.
[84]First appellant’s written submissions at [85]-[86].
[55] From these premises, some further propositions are made:
(b) that “Precincts have been defined on the basis of… the distribution of existing and preferred future land uses” and to “establish each locality’s context and role within the Planning Area, and the desired future local character.”[153]
[153]MP2000, Vol 1 at p 8, Chapter 2.2 (3) (Ex. 3, p 8).
And, in Volume 2:
(a) to the key issues noted as “dictating the planning strategy in the identified Retail and Commercial areas” which include:
“the demand for additional retail and commercial floor space in planned centres because of the likely continuation of high population growth in the short to medium term;” and
“the need for a clear policy on the location of centres in order to create certainty and clear expectations for the community and investment by the private and public sector.”[154]
[154]MP2000, Vol 2 at p 18, Chapter 4.2 (Ex. 3, p 107).
(b) as a more specific strategy for Village Centres that:
“development with a Village centre which fragments the centre or creates a focus away from the established centre in that locality will not be supported”;[155] and
[155]MP2000, Vol 2 at p 19, Chapter 4.3.3 (Ex. 3, p 108).
(c) the emphasis on maintenance of the integrity of the Retail and Commercial Centres Hierarchy as:
“…a basis for containing the growth and function of centres, limiting their spread into residential areas in which they play a fundamental role and facilitating the concentration of certain uses in highly accessible and appropriately serviced areas.”[156]
[156]MP2000, Vol 2 at p 20, Chapter 4.4.1(Ex. 3, p 109).
And more specific statements, referrable to Village Centres, that:
“…Council will not support applications seeking to expand the area of an existing centre unless such areas are fully and satisfactorily utilised. Support is not envisaged for retail or commercial development, other than a General store, in areas outside the Village centres.”[157]
[157]MP2000, Volume 2, 4.4.1 p 21 (20) (Ex. 3 at p 110).
And more specifically to this Village Centre:
“The existing David Low Way based facilities at Coolum are the Village centre. Retail and commercial activities in Coolum Breach will be concentrated between Beach Road in the south and Margaret Street in the north, to be consistent with the Coolum Beach Village centre Precinct in the Coolum Beach Planning Area in Volume 3 of this Planning Scheme”.[158]
[158]MP2000, Volume 2, 4.4.1, p 21 (23) (Ex. 3 at p 110).
[92] Further and in Volume 3, the vision statement for Planning Area No 11 – Coolum Beach, includes:
“…The Coolum Beach township will continue to develop as an attractive coastal village, with a growing number of boutique eateries, shops and tourist facilities. The township will have a compact village centre and will provide only a limited range of goods and services to meet the immediate needs of residents and visitors to the locality...”[159]
[159]MP2000, Volume 3, 3.11.2 (1), p 199 (Ex. 3 at p 131).
[93] And finally at this juncture, to note that in Volume 4 in the Code for Reconfiguring a Lot, a specifically stated purpose of the Code is achieving an outcome where:
“ (b) The diverse and changing needs of the community for a range of good quality housing and accessible community and commercial facilities, and local employment opportunities are met…”[160]
[160]MP2000, Volume 4, 8 (b), p 399 (Ex. 3 at p 173s).
[94] In this particular context, some criticisms directed at the evidence of Mr Adamson may be seen as potentially superficial. In particular that:
(a) it is “hard to resist the conclusion that [his] views are based on some personal (or professional) preference for some other form of development”; or
(b) that he “considered that the Subject Land could be maintained for some higher or better use” and that should play no part in the assessment process.[161]
Rather, the question is as to whether the proposal is in conflict, or at variance, with the scheme by reference to the intended role of the Village Centre Precinct as the reserved location of the commercial and more intensive residential uses, within the Planning Area. And to consider that question in the further context, as Mr Adamson specifically recognised, of the statements of intention as to such concentration and avoidance of fragmentation of the Village Centre Precinct, both in terms of the type of development permitted in the precinct and so as to contain such development within the precinct.[162]
[161]See respondent’s written submissions at [2.16] and cf: the Co-Respondent’s written submissions at [97] – [98] and [100] – [104] (also [54]-][58]).
[162]MP2000, Vol 2 at p p13-14, Chapter 3.5.5 (7th dot point), Chapter 3.5.6; Vol. 2 at p 19, Chapter 4.3.3 (7th dot point), Vol. 2 at pp 20-22, Chapter 4.4.1 (including [20] under the heading “Village Centres”) (Ex. 3, pp 109-111 and Volume 3 at p 199-200, Chapter 3.11.2.
[95] Notwithstanding these considerations, if the analysis is conducted in the manner that is effectively contended by the Respondents and so that the implications of the lot sizing and the Code for Reconfiguring a Lot is effectively put aside, it may not be appropriate to find that the proposed development conflicts with MP2000. That is particularly because:
(a) A ‘Detached Dwelling’ is recognised as a preferred and acceptable use in a Village Centre Precinct;[163]
[163]MP2000, Vol 3 at p 201, Chapter 3.11.4 (Ex. 3, p 133) and Vol 1 at p 98 (Ex. 3, p 47)
(b) It may be accepted, consistently with the views expressed by the town planners called for the Respondents, that provisions expressing preference for mixed use development are capable of having application upon the basis of centre wide considerations, rather than upon the basis of land use at any and every site within the Precinct.[164]
[164]cf: Exhibit 4, TPJER at p 11, [64]-[65] and [68]-[69].
Accordingly, the proposal may be seen as meeting such expectations, both when considered in the context of the entire village centre and also when considered in the context of the entire development of lot 103.[165] And seen as particularly consistent with the following inclusion in the statement of the “General Intent for Centre Precincts”:
[165]MP2000, Vol 3 at p 11, Chapter 2.3(3) (last para), Vol 3 at p 201, Chapter 3.11.4 (1) (fifth para) (Ex 3, p133)
“… a mix of non-residential and residential premises within the Centres is expected, including sites or buildings with shops or other commercial uses at the front and dwellings behind”;[166]
[166]MP2000, Vol 3 at p 11, Chapter 2.3(3) (last para) (Ex. 3, p 125).
(c) Although the proposal may be seen as a primarily residential development, it is not in contest that the SOHO aspects may been seen as consistent with the otherwise undefined statement that:
“Shop-top residential uses may also be considered consistent with the intent and desired character of the Precinct where appropriately sited and designed.”[167];
[167]MP2000, Vol 3 at p 201, Chapter 3.11.4 (under the heading ‘Preferred and Acceptable Uses’) (Ex. 3, p133)
(d) Further and whilst the proposal is as to only limited commercial development (10 x SOHO lots, each at 51m2), it is not appropriate to consider that as being only a token proposal. However and quite apart from an inability to construe the scheme as requiring any commercial mix in the development of the Subject Land, such a mix may also be seen in conjunction with the existing Element Stages 1 & 2 development and such an outcome also may be seen to be supported by the specific notation in the “Statements of Desired Precinct Character” for the “Coolum Beach Village Centre” that the:
“… section of David Low Way known as the Coolum Esplanade …. will be the focus for the Village and accommodate a variety of shopping and dining experiences for the local community and tourist population”.[168]
[168]MP2000, Vol 3 at p 201, Chapter 3.11.4(1) (first and second paras) (Ex. 3, p 133).
[96] In the context of Mr Adamson’s concession as to the quality and acceptability of the proposed built form, the town planning evidence is of consistent assistance in that respect and it would be inappropriate to conclude that the proposed built form would not be such as to “enhance the character and amenity of [the] environs”.[169] On the contrary, it should be concluded that it is likely to be both commensurate and compatible with the existing Element Stages 1 & 2 development, which will have both the more intensive residential and commercial components, consistently with the expectation of focus towards the Coolum Esplanade. And similarly, and in respect of the absence of features such as active frontages (particularly leaving aside the SOHO lots), again the obvious focus in that regard is on Coolum Esplanade.
[169]MP2000, Vol 4 at p 273, Chapter 5.1 (Ex. 3, p 165).
[97] Neither would it then be appropriate to conclude that the expectations of the scheme in respect of the commercial role of the Precinct, or the inclusion of it in a Tourist Node, would not be met, by inclusion of this proposed development in it. Although and as will require further reference later,[170] there is evidence before the Court as to some considerable interest in the pre-sold lots in the development and mainly for purposes of more permanent residence, it should not be assumed that no part of the development would be supportive of visitor accommodation or tourism objectives. Also some permanency of residence in the Precinct is not to be regarded as in conflict with the objectives of the Precinct, including desirable outcomes in respect of economic sustainability.[171] And the Strategic Plan in relation to retail and commercial activities expressly recognises, as one of the key issues dictating the planning strategy “in the identified Retail and Commercial areas” (which expressly includes the “Tourist Centre” at Coolum, as part of a “Retail and Commercial Centre’s Hierarchy” and as one of a number of such centres, described as “primarily satisfying the needs of tourists”):
“the need for the Shire’s retail and commercial services to cater for tourists as well as resident population, reflected in the relatively high retail floor space per capita ratio and the need for centres to absorb downturns in turnover during off peak times”.[172]
[170]See para [112] below.
[171]MP2000, Vol 2 at p 6 (Ex. 3A).
[172]MP2000, Vol 2 at p 18, Chapter 4.2 (first and third dot points) (Ex. 3, p 107).
[98] Therefore and if the implications of the lot sizing and Code for Reconfiguring a Lot is so put aside, the statements as to the “relatively small scale” nature of expected development in the Precinct and the references to the expectation of “small scale” as to both the village centre and some types of development,[173] as are emphasised in the submissions of the Co-Respondent,[174] are of significance to the expectation of satisfaction of all elements of relevant policy and intent in MP2000, including the elements relating to reservation and potential future uses of the Village Centre Precinct, and the balancing of tensions that arise in that respect. Although and as made clear at an earlier point in Volume 3 and as a statement of “General Intent for Centre Precincts”, the Village Centre Precincts “are expected to have premises that remain relatively small scale”, as compared, for instance, to that which is preferred and accepted in the higher order Precinct of “Town Centre Core”, this is to be considered in the context of the broader statements of expectation as to the concentration of the expected commercial and higher density residential development within the Village Centre Precinct.[175] Notwithstanding notation that the proposed development achieves only about 61% (43/70) of the preferred maximum residential density for the area of land on which it is situated,[176] in the absence of any indication of any intended or desired or preferred minimum aspect of relative scale, that balancing exercise more readily engages the consideration as to acceptability (rather than the prospect of better options) and would tend to confirm a conclusion to which I would be inclined: that the Co-Respondent would have satisfied the onus that the appeal should be dismissed on the contended basis of absence of clear conflict with MP2000.
[173]MP2000, Vol 3 at p 199, Chapter 3.11 (second and third dot points) and 3.11.2(2)(a) (Ex. 3 p131), p 132, Chapter 3.11.3 (1)(a) (Ex. 3, p 132) and p 201, Chapter 3.11.4 (1) (first and second paras) (Ex. 3, p 133).
[174]Co-Respondent’s written submissions at [81] and T4-49.45 – 4-50.29.
[175]MP2000, Vol 3 at p 11, Chapter 2.3 (3) (second para) (Ex. 3, p 125).
[176]MP2000, Vol 3 at p 202 (Ex. 3, p 134).
[99] However and from the summary of Mr Adamson’s conclusion,[177] and indeed the adoption of his evidence in the submissions for the First Appellant,[178] it may be discerned that particular emphasis is placed upon the individually titled and small lot nature of the proposal. And for the reasons already noted, it is neither conceivable nor appropriate that this matter may be approached without particular reference to the implications of the proposed lot sizing and dimensions and the Code for Reconfiguring a Lot.
[177]See [67] above.
[178]See [11] above.
Moreover and in this broader context, it may be immediately noted that a different complexion is put upon the expectation engendered as to the scale of development in the Village Precinct and in terms of the desired character of the Precinct. When the planning scheme, including the Code for Reconfiguring a Lot, is relevantly and holistically considered, it is discernible that such a result is indeed at variance with the scheme and particularly, having regard to preferred lot configuration, as an aspect of the desired character of the Village Centre Precinct.
To so conclude, does not offend the principles in respect of reliance upon acceptable measures contained in Codes. It may be accepted that, as contended for the Co-Respondent:[179]
[179]Co-Respondent’s written submissions at [127] – [128].
(a) Compliance with an acceptable measure is not to be regarded as mandatory;[180] and
[180]Main Beach Progress Association Inc v Gold Coast CC 2008 QPELR 675 at [89]; WBQH Developments Pty Ltd v Gold Coast CC 2010 QCA 126 at [35]
(b) The performance based approach to planning schemes admits the prospect of alternative solutions which may comply with the planning scheme by meeting the performance criteria and that the test is not necessarily even whether the proposal approximates the acceptable measure.[181]
[181]SDW Projects Pty Ltd v Gold Coast CC 2007 QPELR 24 at [48] and Kangaroo Point Residents Association v Brisbane CC 2014 QPEC 64 at [73]
However the application of such broadly expressed principles must depend on individual circumstances, as was the subject of analysis by Dorney QC DCJ, in Kangaroo Point Residents Association v Brisbane CC.[182] Two things may be particularly noted. First the correct identification of the qualifications in the earlier cited propositions, as to “generally” not interpreting planning schemes so as to require the adoption of acceptable measures or solutions, and that “it is not legitimate to regard departure from an acceptable solution as necessarily indicating non-compliance with the code”, providing it is an alternate way of achieving compliance with the relevant performance criterion. Moreover, there is particular reference made to the following observations of the Court of Appeal in WBQH Developments Pty Ltd v Gold Coast City Council & Anor:[183]
[182][2014] QPEC 64 at [73] – [74].
[183][2010] QCA 126 at [34] – [37], in the judgment of Fryberg J and with whom, the other members of the Court agreed.
“[34] WBQH submitted that her Honour failed to recognise that the reference to articulating “the desired outcome of density and built form …” in the relevant Land Use Theme was consistent with the statement in Part 7 of the Planning Scheme that “it is desirable that impact assessable development comply with the Acceptable Solutions”. It submitted that properly construed, the Planning Scheme did not require that the maximum building height in the OM6 maps be treated as prescriptive.
[35] In my judgment nothing in the passage quoted suggests that her Honour treated the maximum building height as mandatory or prescriptive. On the contrary, she expressly recognised the true function near the beginning of her reasons (citations omitted):
“[7] Its failure to meet AS1 triggered impact assessment, instead of code assessment of the project. However, that does not establish a conflict with PC1. Compliance with acceptable solutions is not mandatory. If WBQH can demonstrate an alternative solution meets PC1 there is no conflict.”
What her Honour wrote was undoubtedly correct.
[36] As WBQH correctly conceded, that does not mean that the content of an acceptable solution is irrelevant. It may indicate what the planning scheme desires or prefers as development in the particular area. It takes but a small inference from such a conclusion to find that the intent of the Scheme is to favour such development in that area. I reject WBQH’s submission that an express statement of desire is irrelevant in indicating a planning scheme intent. Under the heading “Planning Intent” this Planning Scheme expressly asserts that the overlay maps articulate the desired outcome. Moreover the Scheme makes a development impact assessable if it does not comply with the map. For an applicant to have to jump through the extra hoops and pay the extra fees consequent upon that classification is not an indication of favour toward applications of that class.
[37] Of course the existence of such an intent does not conclude the question whether there is conflict between the proposal and the Planning Scheme. That necessarily follows from the fact that compliance with performance criteria will satisfy the provisions of the code notwithstanding non-compliance with a corresponding acceptable solution. The existence or otherwise of such a conflict must be determined on all of the evidence and on the proper construction of the Planning Scheme as a whole. The weight to be given to the intent may be small. It is the task of the judge to evaluate all relevant matters in the exercise of the judgment of a specialist court.” [184]
[184]It may be noted that although not expressed in the same precise terms, there are statements in MP2000 to similar effect to that noted in [34] of this extract and as to the desired compliance with acceptable measures. See para [87], above and particularly the provisions at (4)(a) and (e) under the heading “Acceptable Measures”.
Rather, it is to understand that in the context of the significance of the reconfiguration of the lot to this development proposal, the Code for Reconfiguring a Lot assumes some contextual importance, as is otherwise made clear by reference to some specific provisions in Volume 2 of MP2000 and which also identify the potential importance of lot configuration and scale in respect of the stated strategies and policies.[185]
[185]See Volume 2 at 3.3.5, 3.4.1, 3.5.2 (Implementation Strategy 2) and 3.5.5. See [80] above.
Further the stated purposes of this code include, amongst others, achievement of the following outcomes:
“(a) Lot reconfiguration facilitates the creation of safe, convenient, functionally efficient and attractive environments, which are consistent with the desired character of the precinct in which the development site is situated;
….
(k) The local street system safely and conveniently provides for the functions of traffic flow, property access, vehicle parking, pedestrian and cycle movement and public transport;”[186]
[186]MP2000, Vol 4 at p 399 (Ex. 3, p 173).
Moreover and to the extent that it is recognised that attention is to be given to the relevant performance criteria in such a code, it is to be noted that the particularly critical criterion is as to lot size and dimensions that achieves consistency with the desired character of the precinct. The contextual influence of the acceptable measure is in determining not only the desired character of the precinct, as referred to in this Code, but also the cognate and similar assertions in other relevant parts of the planning scheme, including those relating to the desired or intended scale of development in this Precinct.
Conclusion as to extent and nature of conflict
Accordingly it should be concluded that in this context, the statement of an acceptable measure as to lot size and dimensions “consistent with” the stated “minimum lot size and frontage”, respectively 1200m2 and 40m, provides relevant context to assessing the intent of the performance criteria and the expression of “the desired character of the Precinct” in the Scheme more generally. In those circumstances, the extent of proposed departure from the stated minimums is obviously significant (frontages of 10 to 11m and sizes ranging from 140m2 to 175m2), relevant and not consistent with achievement of the performance criteria. Although there was little attention paid to it in the course of the hearing, that conclusion may also be seen to be contextually supported by the very next performance criteria, which relevantly provides:
“P2 Small residential lots (of less than 600m2) are created only where:
(a) They are within easy walking distance of a centre; and(b)Where the development will be consistent with the desired character for the precinct in which the land is situated;
…”[187]
[187]MP2000, Vol 4 at p 406 (Ex. 3, p 180)
There was reference to it for the Respondent,[188] but with particular attention to sub-paragraph (a) and an attempt to make a virtue of the location of the proposed development within a centre, as a matter of consistency with that aspect of the performance criteria. However, the problems with such a contention are that these performance criteria are capable of being applicable across all precinct classes and it is only by application of the acceptable criteria and Table 8.2, as that table is engaged by such criteria, that the discernment of intent for each precinct class is discerned; and the next sub-paragraph expressly makes it clear that consistency with the intended or desired character for the precinct in which the land is situated remains as an aspect of this performance criterion. And further, a contextual reference back to the primacy of P1 and the particular application of that performance criterion to a Village Centre Precinct class is found in footnote 15 to P2, as follows:
[188]T4-16.9-38
“Applicants should also be aware that residential lots smaller than the minimum stated in Table 8.2 will only be favourably considered where they comply with P1.”[189]
[189]MP2000, Vol 4 at p 406 (Ex. 3, p 180)
Also and once this is recognized, there is engagement of the broader consideration of the other references to preferred or desired scale of development in this Precinct, the balance to be achieved in respect of the indications as to reservation of use in the Precinct and the more abstract question, as has been noted above, as to the remaining potential for consideration of the impact of the proliferation of driveways in order to provide vehicular access to the multitude of proposed lots. However it is important to note that, in that respect, the statements of purpose and desired outcome are relevantly in terms of “convenience” and that, as has already been found, there is no unacceptable impact identified as actually arising from the proposal, including in respect of safety. Also it is of relevance to again note that this proliferation of driveways occurs at or near the western boundary of the Coolum Village Centre Precinct in MP2000.
A difficulty that arises as to any assistance that may be gained from the evidence in the further characterisation of the conflict, is that the nature of the identified conflict is not to be regarded as having the extent of implication as contended by Mr Adamson and providing the basis upon which he has expressed any views on this topic. For example, it is only to the extent of the implications of the proposed lot configuration, that a development that otherwise meets the expectation of the scheme as to mixed use in this Precinct,[190] could result in fragmentation of the Centre and there is also the difficulty in reconciling Mr. Adamson’s concession that the existing vacant land has the effect of fragmentation of the Centre.[191] That difficulty also tends to underscore the problematic nature of the concept of fragmentation within a Village Centre, particularly when it is accepted that a mix of uses is intended across the centre rather than in any sense of homogenised development on all sites within the centre. On the other hand, there is a ready understanding of a concept of fragmentation of such a centre that may occur if development of the kind intended for the centre occurs outside of it.
[190]See para [98], above.
[191]T3-31.20-25.
In any event, the submissions for the First Appellant are directed at the weight to be attached to some propositions as to grounds put forward by the Respondent Council and by reference to some further evidence provided by Mr Perkins.[192] However and as is correctly pointed out, those matters are calculated to address the issue upon an inappropriate basis that the extent of the conflict is properly characterised as “the very low end of the scale, being technical in nature.”[193] The submissions for the Co-Respondent express a similar contention.[194] However and in each case, the contentions are not divorced from the primary position of these parties and are effectively premised on the assumption that the lot sizing considerations are largely inconsequential.[195]
[192]Ex. 7.
[193]First Appellant’s written submissions at [132]-[133].
[194]Co-Respondents’ written submissions at [193]
[195]Co-Respondents’ written submissions at [199] – [201].
For the reasons given, there is no warrant to regard the conflict as being technical or so minor as to be inconsequential. The point is that the consideration of the preferred lot dimensions means that the balancing of the various aspirations of the strategic plan, for this Precinct in MP2000, demands that more particular weight be given to the statements of intended reservation of the Precinct for the commercial and more intensive residential development. That is so notwithstanding the inclusion of Detached Dwellings as a preferred or accepted use in the precinct. The potential tension that might arise was the subject of an exchange with Mr Adamson, in cross-examination.[196] As he recognized, such a use is allowed and at least acceptable, but perhaps only upon an impractically large lot size, consistently with the weight he thought appropriate to be ascribed to reservation of the land for future and more intensive uses. The appropriate conclusion is that the consideration that a Detached Dwelling is a preferred use in the Village Precinct has lessened weight when the acceptable measure as to a minimum lot size is given weight in determining the appropriate balance of competing considerations in determination of the desired character of the Precinct.
[196]T3-26.22-43.
Grounds
Having so identified the existence and nature or extent of conflict with the planning scheme, it is then a question as to whether 326(i)(b) of SPA is engaged on the basis that “there are sufficient grounds to justify the decision despite the conflict.”[197] That requires regard to be had to “matters of public interest” which “does not include the personal circumstances of an applicant, owner or interested party”.[198]
[197]See: Weightman v Gold Coast City Council (2002) 161 LGERA 173, Woolworths Ltd v Maryborough Regional Council (No 2) [2006] 1 Qd R 273 at 28 , Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2013] QPEC 15 at 19 and Zappala v Brisbane City Council (2014) 201 LGERA 82.
[198]SPA, Schedule 3 (definition of ‘Grounds’).
Notwithstanding the breadth of the potential application of it, some weight may be given to the circumstance that the proposed development is of a type that is explicitly encouraged by the South East Queensland Regional Plan,[199] as the pre-eminent planning document for South East Queensland.
[199]Cf: Westlink Pty Ltd v Lockyer Valley Regional Council (2014) 198 LGERA 1 at [13] and [45]
Another of the matters contended is expressed to relate to “need” for the development.[200] That contention relies on evidence to the effect that the proposed development has been carefully designed to ensure that it can cater for both investors and owner occupiers,[201] and had attracted immediate interest in the market and by the time of the hearing, had been 80% pre sold, with 23 of those 34 sales being to individuals who are local residents of the Sunshine Coast.[202] A particular feature of the evidence of this enthusiasm for the proposed development, is the identified locational features of the proposed development, including that it is within walking distance to patrolled beaches, supermarkets, restaurants and cafes, surf and bowls club and other public amenities such as post office, banks, doctors and public transport.
[200]Co-Respondent’s Written Submissions at [208(a)] and [211]-[221].
[201]Ex. 8, at p.16 [10].
[202]Ibid at p.16 [11]-]12] and p.17 [14].
For the First Appellant, it is correctly pointed out that in the present context “need” is referable to improvement of some availability in a community and as a matter of improvement of the general wellbeing of that community.[203] And that the concept is to be distinguished from and is not synonymous with “demand”.[204] However, the significance that the Co-Respondent seeks to put on this evidence, is as described in Indooroopilly Golf Club v Brisbane City Council. The Court said,
[203]Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPELR 624, 632 at [50].
[204]Arksmead v Council of the City of Gold Coast [1999] QPELR 322 at 330, Tanby Gardens Pty Ltd v Livingstone Shire Council [2007] QPEC 097 at [29].
“It was submitted also that “need” should not be equated with “want” or “desire”. The question however is not one of mere semantics. If it can be shown, as indeed it has been in this case, that there is a demand, say, for residential allotments of a particular quality which is reflected in their ready acquisition by buyers, that surely is of some relevance in assessing the “need” for the rezoning which will make possible that type of residential development”[205]
[205][1982] QPLR 13 at 35.
More particularly and from there, the further developed (and acceptable) contention is that the proposed development will contribute towards achieving Desired Regional Outcome 8 of the SEQRP (including principles 8.1, 8.2 and 8.5):
(a) as it represents an efficient form of infill development which takes advantage of its location, particularly by providing housing choice and diversity in this local government area and precinct and proximate to critical infrastructure and services;
(b) the design of the proposed development as independent small houses, provides a diverse residential offering meeting (at least demand) in the market; and
(c) approval of the proposed development will be an improvement to the general amenity of the local area, in the development of a site that has been vacant for a very long time.
As is also correctly contended for the Co-Respondent, it is necessary, pursuant to s. 314(3)(b) of SPA, to have regard to existing development approval for the premises, which for the part of the land subject to the proposed development is for 96 accommodation units grouped within 7 buildings, 3 storeys in height. And that is so, notwithstanding the reliance in the assessment phase of an appearance of some reluctance to pursue that development. However, it does not follow that the submission that the proposed development would be far superior to that existing development approval, in terms of character, amenity and mix of uses, should be entirely accepted.[206] As was conceded by Mr Adamson, there is the issue that this approval, which was granted under a previous scheme, is now inconsistent with the maximum residential density for the Subject Land, intended under MP2000. Otherwise and as noted by Mr Adamson, the Subject Land is well suited for a mixed use development, comprising retail and commercial uses and residential accommodation, including for visitors, as an integrated development which would allow for basement on-site parking, limitation of access points to the surrounding road network and maximization of related on-street parking.[207]
[206]Co-Respondents’ written submissions at [203].
[207]Ex. 10, at [78].
However, the other considerations that have already been discussed above and on the basis of putting the lot sizing considerations aside and indicative of the potentially positive contribution of the proposed development to the protection and enhancement of amenity currently enjoyed in and around the Precinct, also deserve weight in the balance against the nature and extent of the identified conflict, including any potentially detrimental impact in respect of convenience of pedestrian movement around the site. Once again it may be noted that the concern of the Court is with acceptability rather than perfection of the proposal and the final point which is correctly emphasized is that the proposed development would not result in any unacceptable offsite amenity impacts. This is a relevant matter of public interest.[208]
[208]See: Lockyer Valley Regional Council v Westlink Pty Ltd [2013] 2 Qd R 302 at [25].
The last point also figures in the submissions of the Respondent, as does reference to the long period of absence of development of the Subject Land, notwithstanding the existing approval and some 15 years, or more, elapsing from the development of Element Stages 1 & 2. As well, particular attention is drawn to the benefit of the formalization of the William Street frontage (consistently with what has been noted above as to the prior public identification of this issue)[209] and the conjunction with the pedestrian link through to Elizabeth Street.
[209]See para. [57], above.
Even when the perspective of prospective subsequent redevelopment is included, it should not be concluded that the effect of the indication of intent in MP2000 to reserve the Village Centre Precinct for more intensive mixed uses, is for indefinite such reservation, within the life of MP2000 or otherwise. The long period of inaction in respect of the site may, in the circumstances, be taken as being indicative of the prospective need not yet being reflected by actual demand, whereas there is noted demand for the proposed development. From the perspective of public interest, it is at this point that it must be kept in mind that the identified balance as the desired character of the Precinct, is influenced by the statement of an acceptable measure and that there is no identified basis to conclude that this Village Centre Precinct is not otherwise meeting the expectations of MP2000 or would otherwise lack capacity to do so into the future.
In the circumstances, it should be concluded that there are sufficient matters of public interest to warrant approval of the proposal, despite the extent of conflict with MP2000. In particular, in that:
(a) there is demand for the proposed development and it will contribute towards achieving Desired Regional Outcome 8, including principles 8.1, 8.2 and 8.5,[210] as it represents an efficient form of infill development which takes advantage of its location and it will add to accommodation choice and diversity in the locality, and particularly by the utilization of long underutilized land;
[210]With no apparent or identified conflict with principles 8.7 or 8,8; cf: T3-10.25-47.
(b) there will be no unacceptable impacts on surrounding amenity;
(c) it will involve mixed use development, including relative density greater than nearby residential areas, in close proximity to (but not detracting from) the focal point of the Centre, including shops, restaurants and cafes, and with close proximity to the beach and exhibiting a high quality of design, in a way which adds to the amenity and character of the locality, predominantly in a positive way; and
(d) the Village Centre Precinct is spatially extensive and there is no basis for conclusion that it is otherwise incapable of fully satisfying the role and function assigned to it by MP 2000.
Overall Conclusion
Accordingly and as indicated on 16 February 2018, the intention of the Court is to dismiss the appeal and to make the necessary orders on 16 March 2018, by which time it is expected that the parties will have sufficient time to consider these reasons and to formulate the necessary conditions of approval, including those noted to have been accepted additional conditions.
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