E Constructions Pty Ltd v Townsville City Council
[2009] QPEC 141
•20 November 2009
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
E Constructions Pty Ltd v Townsville City Council [2009] QPEC 141
PARTIES:
E Constructions Pty Ltd trading as Concept Designs
(Appellant)and
Townsville City Council
(Respondent)FILE NO/S:
P&E D31/2008
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Townsville
DELIVERED ON:
20 November 2009
DELIVERED AT:
Townsville
HEARING DATES:
17 and 18 February 2009; written submissions 12 March 2009, 25 June 2009 and 19 July 2009.
JUDGE:
Durward SC DCJ
ORDERS:
(1) The appeal is allowed.
(2) The application is approved.
(3) The parties have liberty to apply.
CATCHWORDS:
ENVIRONMENT AND PLANNING - TOWN PLANNING - Development permit - material change of use - development of office building in Neighbourhood Residential Precinct - inconsistent use - economic impact - current approval of child care centre on site - busy intersection - existing use office and caretakers' residence - part of site a former road reservation - conflict with Planning Scheme - whether sufficient grounds justifying approval.
LEGISLATION:
Integrated Planning Act 1997 ss 3.5.5, 3.5.14; Local Government (Planning & Environment) Act 1990 s 4.4(5A)
CASES:
Brown v Moreton Shire Council (1972) 26 LGRA 310; Kentucky Fried Chicken Pty Ltd v Gandtidis (1979) 140 CLR 675; Weightman v Gold Coast City Council (2003) 2 Qd R 441; Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337; Luke & Ors v Maroochy Shire Council & Anor (2003) QPELR 447; SDW Projects Pty Ltd v Gold Coast City Council & Anor (2007) QPELR 24; Tadpoles' Early Learning Centre v Noosa Shire Council [2008] ] QPEC 9; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41; Grosser v City of Gold Coast (2001) 117 LGERA 153; Norris Clarke & O'Brien Pty Ltd v Brisbane City Council [1996] QPELR 262; H A Bachrach Pty Ltd v Minister for Housing (1992) 80 LGERA 230; Broad v Brisbane City Council (1986) 2 Qd R 317; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; Australian Retirement Homes Ltd v Pine River Shire Council & Anor [2007] QPEC 101; Aldi Stores v Redland City Council [2009] QPEC 27; Ansett Transport Industries (Operations) Pty Ltd v Brisbane City Council {1987} QPLR 168.
COUNSEL:
R Litster SC with N Andreatidis for the appellant
J Haydon for the respondentSOLICITORS: Boulton Cleary & Kern Lawyers for the appellant
Townsville City Council Legal Services Office for the respondentThe Appeal
The appellant appeals against the Respondent's decision of 11 December 2007 to refuse its application for a Development Permit - Material Change of Use to develop an office building on a property located at 192 Bayswater Road, Currajong, Townsville and more particularly described as Lots 1 and 2 on S.P. 126577 ("the site"). The site has an area of 2026 square metres and is situated at the south-western corner of the intersection of Hugh Street (an urban arterial road) and Bayswater Road (a sub-arterial road).
The adjoining land to the south is used and occupied by a primary school and to the west is used and occupied by a single detached dwelling. The site is presently used for an office and care-takers residence and the proposed development will require the demolition of those structures. There is a current approval for a child care centre to cater for 75 children.
Reasons for Refusal
The respondent refused the application for the following reasons:
"1. The development is not consistent with the provisions of the City Plan 2005 for the City of Townsville in relation to:
§ The relevant Overall Outcomes of District Code No 4 - Townsville West.
§ The relevant Specific Outcomes and Probable Solutions of District Code No 4 - Townsville West.
2. The development is not consistent with the provisions of the City Plan 2005 for the City of Townsville in relation to:
§ The relevant intents of the Precinct Development Outcomes of the Neighbourhood Residential.
3. The development is not consistent with the provisions of the City Plan 2005 for the City of Townsville in relation to:
§ The relevant Overall Outcomes of the Minor Centres Code.
§ The relevant Specific Outcomes and Probable Solutions of the Minor Centres Code.
4. The proposal is considered to be inappropriate within this locality.
5. The proposal will permit the intensification of an inconsistent use within a residential area, therefore has the potential to have an adverse impact on the residential amenity of the area.
6. The proposal will have an adverse impact on the existing and likely future land uses in the locality."
Grounds of Appeal and the Further and Better Particulars
The Notice of Appeal was filed on 17 January 2008. The grounds of appeal that are in issue are numbered 12 to 18. Further and Better Particulars were provided by the appellant (my summary of those appear in italics after each ground):
“12. As to the first reason for refusal, that the development is not consistent with the relevant Overall Outcomes, Specific Outcomes and Probable Solutions of District Code No.4:-
(a) Overall Outcomes A to C and E to G are not relevant;
(b) As to Overall Outcome D, the development is not proposed in a defined centre, but for the reasons given in Appendix C to the planning report which accompanied the application dealing with Overall Outcome D, and for the reasons in paragraph 18 hereof, the development merits approval;
(c) The development complies with Specific Outcomes SO2 to SO5 and SO8 to SO10;
(d) Specific Outcomes SO6 and SO7 are not relevant;
(e) As to Specific Outcome SO1, the only inconsistency arises from the inclusion of office as an inconsistent use in the Neighbourhood Residential Precinct, but for the reasons given in Appendix C dealing with SO1, and for the reasons in paragraph 18 hereof, the development merits approval.”
Overall outcomes A to C are not relevant because the development relates to office development and will not impinge upon the accommodation needs of permanent residents; E and F are not relevant because the development relates to office development; and G is not relevant because the subject site is not adjacent to Ross River Road. The proposed development complies with SO2 to SO5, SO8 to SO10; SO6 and SO7 are not relevant because the proposal is in respect of an office development and in respect of SO1 there is an existing operational office use on site.
“13. As to the second reason for refusal, that the development is not consistent with the relevant intents of the Precinct Development Outcomes of the Neighbourhood Residential Precinct, the appellant repeats and relies upon paragraph 12(e).”
The further and better particulars for ground 12 are repeated and relied on.
“14. As to the third reason for refusal, that the development is not consistent with the relevant Overall Outcomes, Specific Outcomes and Probable Solutions of the Minor Centres Code:-
(a) that code is not applicable to the development;
(b) in any event, the development is consistent with the code.”
The Minor Centres Code does not apply because the development is a single isolated building comprising two offices; or the development is consistent with the code and complies with each of the relevant Overall Outcomes, Specific Outcomes and Probable Solutions.
“15. As to the fourth reason for refusal, that the proposal is considered to be inappropriate within this locality, the development is appropriate because of the matters in paragraph 18.”
The particulars are those referred to for ground 18.
“16. As to the fifth reason for refusal, that the proposal will permit the intensification of an inconsistent use within a residential area and therefore has the potential to have an adverse impact on the residential amenity of the area; -
(a) The design of the proposal is such that there will be no adverse impact on residential amenity;
(b) The existing use of the land is for offices and the respondent has approved a 75 place child care centre on the land, so that non-residential use of the land is consistent with the present and approved future character of the land and surrounding area.”
There is an existing operational office use on site. There will be no adverse impact on residential amenity. An office use is complementary use; the land is not suitable for residential development having regard to its location, adjacent to a busy intersection and a school; the land is suitable for use for the purpose of offices; the future intended character of the area as demonstrated by the existing approval for a child care centre, includes a non-residential use on the land.
“17. As to the sixth reason for refusal that the proposal will have an adverse impact on the existing and likely future land uses in the locality, the proposal will not have that impact.”
There is no relevant further and better particular.
“18. The application should be approved because:-
(a) The existing character of the area includes an office use on the subject land;
(b) The future intended character of the area, as evidenced by the approval given on 18 July 2006, includes a non-residential use on the subject land;
(c) The land is suitable for the purpose of offices,
(d) Use of the land for the purpose of offices will provide a buffer between residential use to the west and the busy intersection of Bayswater Road and Hugh Street,
(e) Use of the land for the purpose of offices will not have any adverse impact on the existing or likely future amenity of the area;
(f) The land is not suitable for residential development having regard to its location adjacent to a busy intersection and a school;
(g) If there is any inconsistency with City Plan 2005 it is minor in nature and is outweighed by the matters in sub-paragraphs (a) to (f).”
The Appellant objected to providing Further and Better Particulars of ground 18.
The Integrated Planning Act 1997
Section.3.5.14 of the Integrated Planning Act 1997 (‘the Act’) provides as follows:
"3.5.14 Decision if application requires impact assessment
(1) This section applies to any part of the application requiring impact assessment.
(2) If the application is for development in a planning scheme area, the assessment manager's decision must not -
(a) compromise the achievement of the desired and environmental outcomes for the planning scheme area; or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict."
The Witnesses
Town Planning evidence was given by Mr Jeanes for the respondent and Mr Byrne for the appellant, including a Joint Report. Mr Duane gave evidence (subject to the determination by me of objection to admissibility made by the Respondent) on the economic impact of the proposal. A Joint Report on traffic issues by Mr Bailey and Mr Horman was tendered.
The Issue
The proposed office development is in conflict with the planning scheme in a number of respects. The respondent’s position is expressed in the following way by Mr. Jeanes:
"Unquestionably, the key issue in this case is the principle of the use of the land for commercial purposes”;
and:
"... [I]t is evident that the planning scheme seeks to accommodate residential development in the neighbourhood residential precinct with commercial use in centres and non-residential precincts. Indeed, the district code states unambiguously that an office is inconsistent use in the neighbourhood residential precinct. That the proposal is in conflict with the planning scheme cannot be denied”;
and:
"[I]t is said by the appellant in the grounds of appeal and Mr Byrne in our joint report that the land is not suitable for residential use. This is claimed due to its location adjacent to this intersection and the Marian Primary School. Proximity to an intersection does not, of itself, mean that the land cannot be developed for residential purposes. Residential development in such locations is a common occurrence in urban areas. It is not unusual for potential development sites, particularly infill development sites in existing urban areas, to be subject to constraints, for example, noise impacts. Developments in such locations can occur, designed having regard to the site constraints and opportunities.”
The appellant's position is that there are significant constraints to the residential use of the site as a consequence of its location on a heavily trafficked intersection and that the use for the site would be more suitable as an office. Mr Byrne said in his Report that there would not be any unreasonable detraction in amenity of adjoining properties and that the proposed development would provide a visual and acoustic barrier between residential use in Hindley Street and the arterial roads and intersection. The scale of the proposed development was similar to that of a residential dwelling, set backs were acceptable and that the proposal was in essence compliant with all of the relevant performance standards. Approval for an office use would have negligible impact on the future available housing supply in the cities and would be unlikely to have any detrimental economic impact on neighbourhood centres and commercial enterprise within the district.
The Planning Intent and Construction of the Act - Discussion
The construction of the City Plan 2005 against the planning legislation is a matter for judicial determination. The Court must consider the merits of the Development Application against the relevant provisions of the planning scheme.
In Grosser v Council of Gold Coast (2001) 117 LGERA 153, White J referred to the proper approach of the Planning and Environment Court to matters of planning policy. It is a self-limiting approach, at least when considering town planning matters. The reference in Grosser to s 4.4(5A) is to the repealed legislation (Local Government (Planning & Environment) Act 1990). The section, so far as is relevant, is materially the same as s 3.5.14 of the Act: Her Honour stated that it was not the Court’s function to substitute planning strategies those that a planning authority has carefully and properly adopted. She continued:
"[44] It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid …";
and
"[49] Section 4.4(5A) has a simple two-stage process which first requires the identification of conflict with the Strategic Plan then, if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict."
“Conflict" is considered against the substance of the planning scheme, not against a provision in isolation from the whole and the conflict must be plainly evident. In Central Equity Limited v Gold Coast City Council (2007) QPELR 356 Wilson SC DCJ referred to compliance with planning schemes in the following terms:
"[16] Although Ch 2 of the planning scheme specifies that "All Performance Criteria are considered separate and distinct”, in light of the overlap between the matter addressed by the numerous PC in the Codes which are relevant here, it would be excessively mechanical to simply consider each discreetly and, in a case involving purported compliance in a way different from that proposed by the Acceptable Solution, give each a separate positive or negative response. Undertaking the process in that way would also be entirely discordant with ordinary, common modern principles of statutory construction: Project Blue Sky v ABA [1998] 194 CLR 355.
[17] For these reasons it is appropriate to consider compliance with PC concerning matters like site cover in concert with those which touch what are plainly, under the Codes, concerns of a similar type: here, those directed towards setbacks, plot ratios and, (because of the affect the visual elements inherent in amenity issues arising in regard to those topics), landscape."
See also Aldi Stores v Redland City Council [2009]QPEC 27, albeit in a different context of conflict with the planning scheme.
One of the differences between the two legislative provisions is the use in the Act of the expression "sufficient grounds" in lieu of the expression "planning grounds". Hence it is arguable that "sufficient grounds" implies a wider test under the Act.
The Construction of the Planning Scheme
In Weightman v Gold Coast City Council (2003) 2 Qd.R. 441 the Court of Appeal held that the requirement imposed by s 4.4(5A) of the repealed legislation was mandatory and not merely directory. Atkinson J applied the following test:
"[36] In order to determine whether or not there are sufficient planning grounds to justify proving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:
1. Examine the nature and extent of the conflict;
2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict."
In Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R. 273, the Court of Appeal analysed the issue of conflict between the decision and the planning scheme and the test applied in Weightman:
"[23] 'Conflict' in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike 'compromise' in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that 'the assessment manager's decision must not … conflict with the planning scheme' requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.
[24] Section 3.5.14(2)(b) differs in several respects from s. 4.4(5A) and s. 4.13(5A) of the Local Government (Planning & Environment) Act 1990, provisions which may be regarded as its predecessors. Under those sections the subject of the putative conflict was under the application; here it is the assessment manager's decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the grammatical structure of the two sections is significantly different. These differences mean that care must be used in applying the cases decided under those provisions to the present section."
Fryberg J (with whom Holmes J agreed) referred to the process approved in Weightman in respect to the repealed section. However, he said it would "[be] a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification"; and "[T]he purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case" (at page 286 and 296 respectively).
In Westfield Management Ltd v Pine River Shire Council & Anor (2004) QPELR 337, Britton SC DCJ said with respect to the construction of planning schemes:
"[18] I accept that the following principles apply to the construction of planning schemes:
(a) they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;
(b) they should be construed as a whole;
(c) they should be construed in a way which best achieves the apparent purpose and objects;
(d) in the light of the proscription against prohibiting development contained in IPA (s. 6.1.2)(3);
(e) statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;
(f) a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;
(g) a Strategic Plan should be read broadly and not pedantically;
(h) although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;
(i) a conflict alone may not have the effect of ruling out a particular proposal;
(j) implementation objectives must be read sensibly and in context. They are but a function of the principle objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent."
(Citations have been omitted from the cited passage).
In Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447, Wilson SC DCJ referred to the sufficiency of planning grounds, notwithstanding conflict with the planning scheme:
"[103] IPA s. 3.5.14(2)(b) provides that the assessment manager's decision (or, in this case, the decision of this Court) must not conflict with the planning scheme unless there are sufficient planning grounds to justify the decision. The existence of conflict is a question of law. Any conflict said to arise must be plainly identified but that is a process undertaken by looking at the scheme as a whole, rather than isolated provisions. The word 'sufficient' refers to the weight to be afforded on any particular ground which is advanced as a reason for approval, despite conflict; and the phrase 'sufficient planning grounds' refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which relate to the merits of the application."
See also SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24 at [46] to [48]; and Australian Retirement Homes Ltd v Pine River Shire Council & Anor [2007] QPEC 101 at [19], [20] and [28].
In a case such as this the correct approach requires the Court to consider the decision and to identify the nature and extent of the conflict and to assess, in the context of the planning scheme as a whole, whether there are planning grounds of sufficient weight to justify approval, despite conflict and bearing in mind the proscription in the Act against prohibiting development.
The Planning Scheme
The purpose of the City Plan 2005 is set out in s1.1 as being a framework for managing development in a way that advances the purposes of the Act: That is the achievement of ecological sustainability by:
(a) coordinating and integrating planning at the local, regional and State levels; and
(b) managing the process by which development occurs; and
(c) managing the effects of development on the environment (including managing the use of premises), by -
(a) identifying assessable and self-assessable development; and
(b) identifying outcomes sought to be achieved in the local government area as the context for assessing development.
The City Plan 2005 refers to Desired Environmental Outcomes for the city as a whole and divides the city into Districts and within Districts, Precincts.
Desired Environmental Outcomes
The planners agreed in their joint report that the Desired Environmental Outcomes (DEO), whilst relevant, were not an issue in this appeal. However, Mr Jeanes appeared to resile from this agreement in the course of his evidence.
He said in evidence-in-chief that it was clearly agreed between he and Mr Byrne that the proposal was in conflict with aspects of the relevant planning scheme provisions: the matters relevant to the appeal were whether the proposal would compromise the achievement of the DEO and the relevant planning scheme provisions and whether there were sufficient grounds to justify an approval despite the conflict.
In cross-examination he said that after the Joint Report was signed off and in preparing his own Report he gave consideration as to why an office should be allowed outside an existing centre. He agreed that in the joint report there was no specific reference in a DEO that an office should not be allowed outside an existing centre. He agreed that the decision notice made no specific reference to a DEO and nor did the Joint Report. There followed a series of questions and answers about the latter (T2-8):
"Q: Do you now say - is it now your evidence that there is some compromise of a city wide DEO?
A: There could be.
Q: There could be?
A: Yes.
Q: That's as high as you'll put it?
A: If we were looking at just this particular site, then I would say, 'No. There isn't.'"
This exchange in the course of cross-examination suggested to me that Mr Jeanes had some difficulty in explaining the respondent’s case in the context of the whole planning scheme. I find that he and Mr Byrne reached agreement, without any reservations, in the terms expressed in the Joint Report. Hence there is no relevant issue concerning the DEO.
The relevant planning requirements are in District Code-4 - Townsville West: Overall Outcomes and Specific Outcomes for the Neighbourhood Residential Precinct.
District Code - 4 - Townsville West
The relevant considerations arising from the planning scheme in DC-4 Townsville West in the Neighbourhood Residential Precinct are, as agreed in the Joint Report, Overall Outcomes a, b and d to f, and Specific Outcomes (SO) SO1 to SO6 and SO8, with SO1, SO6 and SO8 involving matters about which agreement could not be reached and there being agreement that SO2 to SO5 are not material to the appeal.
The Townsville West District is a relatively large district, has a sub-regional centre, numerous neighbourhood centres, some local centres, some business and industrial land, some green space, some traditional residential areas and some land for community and government purposes. The Neighbourhood Centre in Hammett Street, south of the site, has been developed in part for multiple dwellings.
The site has historically never been used for strictly typical residential use. Prior to current use as an office/caretaker's residence, it was used as a welfare/training facility by the Catholic Church. Part of the site was a road reserve - Hindley Street continued through to and joined the intersection.
Overall Outcomes
The relevant Overall Outcomes are described as follows:
(a) The district fulfils its established role as a suburban residential area catering primarily for the accommodation needs of permanent residents.
(b) The district accommodates a range of residential accommodation types and styles, including detached houses on individual lots;
(c) Dual occupancies, multiple dwellings, motels, accommodation buildings, aged care and retirement villages.
(d) Retail and commercial land uses occur within defined centres, which are developed consistent with the parameters of the centre's hierarchy.
(e) Two industrial nodes at Charles Street, Aitkenvale and Keane Street, Currajong accommodate a mix of storage, light and service industries.
(f) Community, education and special uses are consolidated and their adverse impacts on the amenity of adjacent residential areas are minimal and adequately managed.
In the planning scheme "office" is defined as follows:
"Premises used wholly or primarily for administration, clerical, technical, professional or other business activity, including pathology laboratories, where no goods or materials are made, sold or hired on the premises."
Joint Report
In the Joint Report the planners were able to agree on a number of issues, namely that the DEOs whilst to be considered did not raise any relevant issues for the site; and the Overall Outcomes and Specific Outcomes for DC-4 West Townsville that were relevant. The critical issues were agreed as being the suitability of the site for residential purposes, a commercial use in an out of neighbourhood centre location, whether the proposed development would serve the community directly and the impact of the proposed development on the amenity in a residential precinct. Any conflict with the minor centres code was considered to be immaterial.
The town planners did not agree with respect to the issue raised by Mr Jeanes of potential encroachment or proliferation of non-residential uses that might follow an approval of this development. Mr Jeanes considered there was insufficient justification for office use, that the compromise of the planning scheme was fundamental and that, at least impliedly, the existing approval for the child care centre was not relevant. Mr Byrne considered residential use on this site as being unsuitable, considered the recent approval of a non-residential child care centre use as being a relevant factor, considered the proposed development as having a benign impact on the amenity of the residential neighbourhood and considered that residential use of the site was constrained by the heavily trafficked intersection. He considered that a child care centre had a greater impact than did the proposed development. Mr Jeanes agreed that there would be greater traffic movements if a child care centre had been constructed on the site.
The Grounds of Appeal – Evidence and Discussion
1.Ground 12 – Overall Outcomes, Specific Solutions and Probable Solutions.
In respect of the Overall Outcomes paragraph (a), Mr Byrne said that the location of the site at a busy intersection is a significant constraint to residential amenity and therefore the viability of development of the site for residential purposes. He said that a non-residential use (office) currently existed on the site and that there was an existing approval for a child care centre. The potential residential accommodation within the physical constraints of the site would be no more than two detached dwellings for seven multiple dwelling units. I note that there is a caretaker's residence associated with the existing office on the site. Mr Byrne argues that the planning approval for a child care centre is indicative of a view by the respondent that the site is not strategically important as a source of supply of land for residential purposes.
In respect of Overall Outcomes paragraph (b), Mr Byrne added to the observations he made in respect of paragraph (a), that the development of residential accommodation on the site would be compromised by poor amenity, namely the traffic on a busy intersection and the proximity of commercial businesses at the intersection.
In respect of Overall Outcomes paragraph (e), he said that the proposed development was negligible when measured against the defined centres where retail and commercial development would still occur. The proposed use was business oriented rather than retail. There were very few small office facilities in any of the Neighbourhood Centre Precincts. A professional person occupying the proposed office or part of it would potentially provide a service to local residents or business operators.
In respect of Overall Outcomes paragraph (f), Mr Byrne referred to the Marian School immediately south of the site, the current approval for the child care centre and the likelihood of increased traffic flows and associated noise impacts arising from the current approval which would not arise from the proposed development.
The relevant Specific Outcomes and Probable Solutions for DC-4 Townsville West, in the Neighbourhood Residential Precinct, are as follows:
SO1 (b) provides as follows:
· Lands primarily accommodate low to medium density residential land use and uses which directly service residents in the locality (such as parkland, places of worship and home based business), which do not have significant adverse impacts on residential amenity.
· Housing is predominantly in the form of detached houses and dual occupancies, with multiple dwellings, accommodation buildings, motels, and retirement villages where located on roads with a status on the Road Hierarchy Map 3.2 of major collector street, sub arterial, arterial or highway.
· Residential development other than detached houses and dual occupancies is located within easy walking distance of shopping and/or school facilities, and/or close to major public open space.
The word ‘primarily’ is relevantly defined in the Macquarie Dictionary Second Edition as "first or highest in rank or importance". The use of that word in SO1 (b) clearly does not exclude other uses.
In respect of SO1(b), the planners in the joint report (paragraph 6.2) agreed that the proposal, in isolation, would not give rise to an unacceptable impact on the existing level of amenity. Mr Byrne expressed a view that there was "no clear rationale as to why [various land uses] are classified as 'inconsistent'". That observation might be correct, however such rationale is a matter for the planning authority and not for the Court: See HA Bachrach Pty Ltd v Minister for Housing (supra): Norris Clarke & O’brien Pty Ltd v Brisbane City Council [1996] QPELR 262; and Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41.
Mr Byrne expressed the view that the proposed development would have a "benign impact" on adjoining and nearby residential uses and that the land was unsuitable for residential use, hence any inconsistency was not on the face of it determinative of the appropriate use of the site. He referred to the existing use of the site as an office providing architectural services not having given rise to any significant adverse impact on the residential amenity of Hindley Street or the surrounding locality. The design of the proposed development was such that it was of a similar scale to and would have the appearance of two separate detached dwellings. The traffic and noise constraints would be significant in respect of the amenity of a residential development.
The word ‘inconsistency’ as applied to developments does not mean that an inconsistent use would never be permitted. As Wilson SC DCJ said in Tadpoles Early Learning Centre v Noosa Shire Council [2008] QPELR 493:
“[38] [i]t is also important, in this case, not to be overwhelmed by the reference to this use as ‘inconsistent”, or for the need for impact assessment. Planning Schemes are documents intended both to reflect, and guide existing and future development. To read them in any other way would be unrealistic.”
His Honour was dealing with a planning scheme that contained the defined term ‘incompatible’. The respondent submitted that the cited passage was therefore distinguishable from this case because of the different language in City Plan 2005. I recognise the point made by the respondent, but I do not agree to the extent submitted. The passage has a more general application and accords, with repect, with common sense.
SO6 provides as follows:
"The pattern of land use ensures residential areas are safe and attractive living environments that have high levels of amenity and provide a variety of residential densities and accommodation styles, catering principally for the needs of permanent residents and for all socio-economic groups."
In respect of SO6, Mr Byrne said that the proposed offices would contribute to a safe and attractive living environment and would have negligible impact on the supply of land for residential use.
SO8 provides as follows:
"Non-residential uses are located, designed and operated to avoid significant adverse change to amenity (in terms of light, noise, dust, odours, traffic conditions or other physical conditions) experienced by occupants of
(i) associated, adjoining or nearby residential uses; and
(ii) other types of non-residential development."
With respect to SO8, Mr Byrne said that the proposed development would act as a buffer between the intersection and residential property to the west of the site and that it would not impact the safety or the amenity of the living environment within the locality of the site. Mr Jeanes did not agree that a "buffer", if necessary, would be provided by a commercial development, because it could just as easily be provided by a residential development.
Mr Jeanes did not agree that the Marian Primary School to the south of the site would have an unacceptable impact upon residential amenity on the site. He said that it was "not uncommon for residential development and educational uses to be located adjacent to each other. Schools in predominantly residential areas, particularly primary schools, are a familiar feature in urban areas."
SO2 - building height, SO3 - setbacks and site coverage, SO4 - building design and SO5 - residential densities are applicable but not an issue on the appeal.
2.Neighbourhood Residential Precinct – Precinct Development Outcomes
An ‘office’ is an inconsistent use in the Neighbourhood Residential Precinct.
Mr Jeanes maintained that the proposal would represent an encroachment of the commercial uses to the north of Bayswater Road, incongruous to the residential character to the south that prevails. He said that the planning scheme sought to consolidate uses such as offices in commercial centres, not residential areas. He said that the planning scheme promoted centres of economic activity within the city and the consolidation of existing industrial and business activity areas on a nodal basis which recognised interdependences between activities, the promotion of public transport use and consolidation of such development to provide higher levels of access to commercial and community facilities. In so far as the proposed use providing a direct service to residents in the locality, he considered that this was intended in the planning scheme to be service only to a local catchment area rather than for a wider area.
Mr Byrne considered that the site was unique and hence suitable for development for office purposes. He based this opinion on the location and the present use of Hindley Street, the present three dwellings and school opposite in Hindley Street and the site where an existing professional office has existed since 1997. The car parking was located in such a way that it was contained on the site and did not intrude pedestrian movement.
In evidence-in-chief Mr Jeanes thought there had been some discussion with Mr Byrne about economic viability in respect of the proposed development. However, for the reasons that I have given (infra) regarding economic impact, I do not rely on such evidence as there may be about that issue.
He said that land in proximity to intersections in busy roads has been re-developed for residential purposes in the past. He said that he was "not sure" he would agree with Mr Byrne that the site was 'unique."
Minor Centres Code3.
In so far as the Minor Centres Code is concerned, the planners agreed in the Joint Report that whilst the code was applicable and that there were inconsistencies identified, that "[s]ubject to consideration of impacts upon amenity" if the proposed development was acceptable on all other grounds the conflict with the minor centres code would not be material. The only matters that were considered relevant were SO7 (shelter along the principle facades of the buildings, there only being an awning on the principle street frontage) and the width of a landscape strip on the boundary with the adjoining residential property.
‘Inappropriate Use’ within locality 4.
Mr Jeanes agreed that the planning scheme makes provision for the introduction of non-residential uses within the neighbourhood residential precinct and that adverse impacts on residential amenity were a very material consideration. He said the proposed development had no direct impact that is unacceptable (in terms of noise or disturbance) but believed that an approval for an office on the site would change the assessment criteria for further development proposals.
He agreed that traffic noise would be a constraint in developing a residential development proposal for the site but he said "[I]'m not convinced that it can't be used for residential use." He said the constraints were the three road frontages - two arterial roads and one local street. He said that elsewhere in the planning scheme area, old residential uses contained and new residents were developed despite there being on sites adjacent to major roads or busy intersections.
He agreed that the definition of "office" was broad and that the proposed development was within the definition. He said that the planning scheme had moved away from offices being part of houses and sought to consolidate such use into existing centres. He said the visual impact of the proposed development would be different to a residential use in a residential precinct but he agreed that there was no specific reference to this in the joint report. He agreed that there would continue to be opportunities within the neighbourhood residential precinct for the introduction of uses that directly serviced residents in the locality, such as detached housing, dual occupancies and multiple dwellings.
Mr Byrnes said that the neighbourhood centre and the surrounding housing stock in the precinct did not seem to be undergoing much in the way of urban renewal and that one would have to have compelling reasons to establish a commercial development in any of the neighbourhood centres. He agreed that the Planning Scheme sought to have non-residential development grouped in precincts. He agreed that this assisted in accessibility but added that it also served as a segregation to avoid potential conflict and land uses.
Intensification of inconsistent use5.
In respect to amenity, Mr Jeanes said that:
"6.35 [I]t is asserted by the appellant and Mr Byrne that the proposal would not give rise to adverse impacts upon amenity and certainly not in the context of the approved child care centre. It is agreed that in terms of noise and disturbance the proposed use, in isolation, is unlikely to give rise to such impacts that the living conditions of existing residents would be compromised to a degree that this would be objectionable. However, residential amenity and impacts thereon, is not simply a matter of noise and disturbance" and that "[T]he proposed use would fundamentally change the character and nature of this residential precinct. I consider land use and character as a contributing factor in the amenity of the locality."
However, Mr Jeanes agreed in cross examination that the joint report (at 6.2) did not qualify the agreed position "[t]hat the development in isolation would not give rise to an unacceptable impact on the existing level of amenity in this residential precinct" (cf his report at 6.35 above). Mr Jeanes says the proposed development took development away from the existing neighbourhood centre which was about 700 metres to the south. He agreed that there was no office space and there were no vacancies in the existing centre. There were some industrial uses there "which are possibly more appropriate in an industrial area." The neighbourhood centre was not at capacity from a planning perspective in his view. The proposed development would remove the opportunity for inter-relationships for multiple trip journeys and for co-location of similar facilities that is in the planning scheme: that is, the "impact" of the proposed development on existing centres would be a negative factor in that context.
In cross-examination Mr Jeanes said that there no examples of a site next to a school at the end of a cul-de-sac at a major intersection. He said one looks at the character of an area and how a development would fit within the character of the area; at the planning scheme designations; and at the site specific circumstances, including existing uses (such as, in this case, offices).
He said the child care centre approval was still current and would present, from the Bayswater Road and Hugh Street perspectives, as similar in size to the proposed development. The proposed development had fewer car park spaces (and a break between the two buildings) than the child care centre, which is one building plus covered play areas. In re-examination Mr Jeanes was asked to compare the floor area of the child care centre approval and the proposed development and concluded that the proposed development was slightly greater in floor area. In the child care centre, all vehicular movement was through Hindley Street. He agreed that there would be a significant increase in traffic on Hindley Street and some noise generation from that approved development.
Mr Jeanes agreed that an office was a more benign and acceptable use "within the context of this land juxtaposed with the houses and the school", if that were the only planning consideration. However, he said that a child care centre was a use that one would expect to see in a residential area and, depending on the type, some educational establishments would be appropriate in residential areas. What may be appropriate in a residential area depended on the circumstances, but the circumstances in which an inconsistent use might be approved was likely to be limited. He agreed that uses "not typical" to a residential area would include an educational establishment and an office. He believed that the proposed development would be an intensive use of the site even though the occupation of the office tenancies might only accommodate perhaps 15 people.
Mr Jeanes said a child care centre such as currently approved would complement the residential purpose. He agreed that the school and traffic on Hindley Street are impacts on the use of the site to residential purposes.
In cross-examination Mr Byrne agreed that one can develop any land for residential purposes but said that this particular site would be heavily constrained by poor amenity. In so far as the arterial roads were concerned he agreed they were intended for inter-suburban travel and that that was an attraction on this site for an office because of the passing traffic. He agreed that in order to access the site people would have to use the residential street, Hindley Street. However, he said that in Hindley Street there were only three residential premises to the south of the site and they were opposite the school so that the users of Hindley Street would either be going to or from the school, those three residences or, in this proposal, the office buildings.
He agreed that schools and child care centres would be expected to be found in residential areas. He agreed that because of the width of the arterial roads the development on one side of either road was quite separate from development on other side. However, he said that there was a connection between the core industry and business facilities over the road because of a close, physical relationship and there would be a likelihood that those existing uses would utilise the services of the office tenants, whatever they may be. As to the scale of the office buildings he said the proposal was on a domestic scale and would present to the street in a similar way to a dwelling. The only difference would be by way of advertising on the principal street frontages.
Adverse Future Impact6.
Mr Jeanes said that residential development was not precluded by the City Plan in respect of housing on "higher order" roads. He said that to discard land in those areas (adjacent to or on busy intersections) as unsuitable for residential purposes would be wrong in principle. He asserted that to abandon such sites for residential purposes would have "extensive implications for the centre's hierarchy, planning scheme outcomes sought and the amenity of existing residential areas." He said that certainly should not be permitted on an ad-hoc basis.
Mr Jeanes also thought it a "distinct possibility" that further non-residential uses might be proposed in the location and undermine residential amenity in the "context of character."
Mr Byrne's evidence was that approval of the proposed development would not act as a precedent simply because future applicants for non-residential uses within the residential precinct would be assessed on the individual merit of the proposal.
Summary of Other factors7.
Mr Jeanes concluded his Report with the following statement:
"8.9 Having regard to the matters above it is not concluded that there are sufficient grounds to justify an approval despite the conflict with the planning scheme. The proposal is fatally conflicting with and would compromise the outcome sought by the planning scheme."
He said in cross-examination that an office development was not likely to create an unsafe residential environment. He was not prepared to say if the design was an attractive one or not. He agreed that it was single storey in height and had less traffic impact than the currently approved child care centre. He agreed that a residential development on the site was more likely to face Hindley Street than overlook the intersection. He agreed that his opinions (expressed in his report), that the proposed development was "fundamentally at odds with the planning scheme" and "fatally conflicting" was a use of very strong language.
He said he believed that an approval of the proposed development would conflict with the fulfilment of the district role of an established residential area catering for the needs of permanent residents. However, he agreed that the district would continue to accommodate a range of residential types and styles - including detached houses on individual lots - even if the proposed development was approved; they might include dual occupancies, multiple dwellings and even a motel or an aged care or retirement village. However, he still queried whether the proposed development actually fulfilled the planning intent.
With respect to the intersection of Nathan Street and Fulham Road, on the four corners of the intersection there was respectively residential development behind a high fence, a retirement village, a service station and the "Centro on Nathan" shopping centre respectively. The latter was in a neighbourhood residential precinct. He was not aware of the basis upon which the approval of the shopping centre was made.
In response to questions asked by me, Mr Jeanes said that the Centro Nathan Shopping Centre was part of the Neighbourhood Residential Precinct and that across Fulham Road on another corner of the intersection there was a Neighbourhood Centre. He was not able to say whether the shopping centre may have been considered part of that Neighbourhood Centre, even though the latter was across the road.
Amenity and Character
The concept of amenity is one which is subjective in nature. In Broad v Brisbane City Council (1986) 2 Qd.R. 317, de Jersey J said (at 326):
"[t]he concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one's perception of amenity."
In Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112, Dodds DCJ said:
"[40] A persons' right to put their land to any lawful use they wish is, in these more enlightened times, tempered by town planning considerations, one of which is amenity. Consideration of amenity in a town planning context is not in the abstract. It is informed by the planning controls applying in the area under consideration and the notion of reasonableness … proposed development will often affect existing amenities. What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other land holders in the vicinity given the sorts of uses permitted under current town planning controls. While the subjective views of those whose amenity may be affected by proposed development are not to be ignored, in the final analysis the question must be answered according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not effected by some special sensitivity or eccentricity. The weight to be accorded to subjective views can only be judged in light of all of the evidence about the subject …"
In Tadpoles' Early Learning Centre v Noosa Shire Council [2008] QPEC 9, Judge Wilson SC referred to amenity in terms of the nature of the proposed development. In that case the proposed development was described by His Honour as a "very large building indeed, one which is quite out of character with the other buildings in the neighbourhood" in an area which had, as he also said "… the general appearance of a quiet street of detached houses".
Traffic Issue
The traffic consultants, Mr Bailey and Mr Horman, provided a joint report in which they agreed on all relevant issues. That agreement has been adopted by the parties to the appeal. By way of summary, they concluded as follows:
"(a) The traffic impact of the office complex on the residential amenity of the area is low to very low;
(b) The traffic impact of the office complex on the residential amenity of the area is considerably less than what the assessed impact of the previously approved child minding centre would have been; and
(c) Traffic issues are not a substantial consideration in this matter."
Mr Duane and the Objection to his Evidence
Mr Duane is an economist, not a town planner. His evidence was led at the hearing of the appeal, subject to my determination as to whether his report should be admitted in evidence and his testimony taken into account, because of objections by the respondent to his evidence. The objections are that his evidence is directed to areas outside his field of expertise; is otherwise irrelevant or addresses matters beyond the disputed issues; and that if he was permitted to give town planning evidence there would be two experts giving evidence in the same field for the same party, contrary to rule 33 of the Planning and Environment Court Rules 2008 (‘the Rules”).
Mr Duane provided two reports, the second report being a supplementary report which confined his opinion to relevant matters in the appeal. A number of specific objections were made in addition to the overall objection to the reception of his evidence. They have been identified in correspondence (Exhibit 4) and adopted in submissions by Mr Haydon.
The report from Mr Duane seems to have arisen from discussions between the town planners and an initial position agreed by them that they would be assisted by some evidence concerning the effects of the loss of land for residential purposes; the provision of a commercial use on a site that was out of a residential centre location; and whether the proposed development as an office would directly serve residents in the locality as is envisaged by the planning scheme (Exhibit 2).
In cross-examination Mr Jeanes agreed that he did not have the expertise to analyse the availability of office space in existing centres. Sourcing such information was one consideration in his co-signing the letter about Mr Duane's report. However, Mr Jeanes was instructed by the respondent to not consider any opinions expressed by Mr Duane for the purpose of the appeal and he did not consider Mr Duane’s reports. The relevant correspondence (part of Exhibit 3) shows that the respondent took the view that if the town planners in their joint report could not agree on everything, in effect, so be it. They were not required to do so and the areas upon which they had sought further assistance, inferentially at least, would thereby remain as unresolved issues for determination by the Court. That seems to me to be to be a perfectly reasonable view for the respondent to take, regardless of the view that a witness for a party might initially prefer and is consistent with the purpose of a joint report as set out in rules 21, 25 and 26 of the Rules.
The appellant submits that the evidence is relevant. The reports by Mr Duane were directed to an "economic impact assessment of the proposal." The appellant referred to the joint view expressed by the town planners that they would be assisted by information about that subject and to the statement by Mr Jeanes in the joint report (Report paragraph 2.7) that "it has not been demonstrated that…the proposal would not have an adverse impact upon the role of existing centres and that the proposal would directly serve residents in the locality." To some extent Mr Byrne addresses these issues and the respondent takes issue with those opinions as well, on the ground that they are outside his field of expertise. The respondent referred to Brown v Moreton Shire Council (1972) 26 LGRA 310, to the effect that private economics is immaterial and irrelevant (in the context of Mr Duane's opinion about rental affordability in the Neighbourhood Centres). The appellant submitted that the authorities relied upon by the respondent were not relevant because they dealt with quite different issues (subdivisions and private expenses and retail competition). I have agreed with the submission with respect to those matters. I think that a reference to the authorities really is not helpful in determining the admissibility of Mr Duane's report. To the extent that Mr Byrne and Mr Jeanes have referred to matters of economic impact I do not rely upon the opinions expressed by them in that regard.
In Brown, Mylne DCJ said (at 313) that:
"The appellant's husband in giving evidence stated that if the appellant was required to do the works required as a condition of subdivision, it would be uneconomic to sell the blocks - 20-acre blocks at the price at which buyers were prepared to pay, namely, $6,500 approximately. As counsel for the respondent has carefully pointed out, the economics of subdivision is immaterial: see Lloyd v Robinson (1962) 107 CLR 142 at 155; Anthony George Pty Ltd v Gosford Shire Council [No 2] (1968) 16 LGRA 165.”
The issue in Brown is different. I do not think Mr Duane’s brief was directed to or that his evidence was about private economics or to the economics of the proposed development, in the sense referred to by Mylne DCJ.
Mr Haydon also referred to Kentucky Fried Chicken Pty Ltd v Gandtidis (1979) 140 CLR 675 at 681. However, the relevant issue there was competition between retail facilities. That was not the issue addressed by Mr. Duane.
The respondent submitted that the disputed issues did not include questions of need and demand and economic impact. I agree generally with that submission. However, those issues were initiated by the town planners in the first instance and such of Mr Duane's evidence as I have admitted does not in my view warrant the exclusion of it on the basis of the content of the grounds of appeal. The evidence admitted is complimentary to the issues raised in the appeal grounds.
In his first Report, Mr Duane addressed three issues. The first issue was whether the site was an appropriate site for residential development. I regard this part of his Report as being directed to town planning issues, it is beyond the expertise of the witness and offends rule 33 of the Rules. The second issue concerned potential impact on commercial centres. The lack of vacancies at neighbourhood and local facilities were addressed and Mr Duane concluded (Report paragraph 2.9) that there was likely to be a continuing demand for office space in the twin cities (as they then were) as a result of continuing population growth. I regard this part of his report as being directed to town planning issues, it is beyond the expertise of the witness and offends rule 33 of the Rules. In any event, I found the statistical information difficult to interpret in the context of this appeal. The third issue was whether the proposed non-residential use would service residents in the locality. Mr Duane suggested a definition of "the locality" of his own making, namely as a 2 km diameter circle (as I understand his evidence) from the site. He draws a conclusion based on demographic information that the proposed development would service residents in the locality. The ‘locality’ defined by Mr Duane no doubt suited his analysis. However, the word ‘locality’ does have a relevance to town planning and is used in the planning scheme. It is not a technical word requiring definition. The definition proffered by Mr Duane is not relevant to any consideration of ‘locality’ that may arise in this case: HA Bachrach Pty Ltd v Caboolture Shire Council ((1992) 80 LGERA 230, at 235. The ‘locality’ in the planning scheme is really as Mr Jeanes stated, the ‘local catchment’, which whilst variable from case to case is more likely to be primarily centred on the District.
Nevertheless, I regard this issue as having complimented the town planning issues, even though I have rejected Mr Duane’s definition of ‘locality’. To that limited extent, even though it is equally a town planning issue, it is relevant in the appeal.
In the supplementary Report, Mr Duane revisited his conclusions in the first report but confined himself to "office" as defined in the planning scheme. He otherwise confirmed the opinions he expressed in the first report. To the limited extent that I have found his evidence admissible, he opined that it would "reasonably be expected to be used by residents but also nearby businesses in the “locality." There was no evidence on the appeal what form the tenancies might be. There are no prospective tenants of any particular type envisaged at present. However, the office design and the number of tenancies potentially will attract small professional businesses that more likely than not will provide a direct service to residents in the locality. I agree with Mr Byrne’s evidence in that regard.
To the extent that his evidence relates to the consideration of direct service to residents and with the qualification I have made about ‘locality’, I am prepared to admit it on the appeal and take it - to the extent that the qualification renders it useful or of any weight - into account. In so far as the balance of the reports and testimony are concerned, I rule the evidence inadmissible.
Nothing I have said should be read as a finding that evidence of economic impact is generally inadmissible or irrelevant in planning cases. Quite to the contrary, I have no doubt that economic experts may give relevant evidence in planning cases, particularly in respect of planning need. However, this was not the focus of Mr Duane’s Reports. In my view he addressed planning issues in his analysis rather than economic issues, save for the limited evidence that I have admitted.
Given the findings that I have made about Mr Duane's evidence, I do not need now to address the specific objections raised by the respondent.
Current Approval and Existing Use
The current approval for a child care centre and the existing use as a professional office and associated caretaker's residence are relevant matters so far as the comparative analysis is concerned. The history of the site is somewhat unusual, part of it having been a road that connected Hindley Street to what is now the major intersection and within a road reserve. To that extent the existing use is a matter relevant to a determination of the appeal, subject to the requirement that the Court assess at the development application afresh and on its own merit. Hence it is not simply a matter of referring to what may have been approved in 1997 so far as the existing use is concerned, under a different planning regime; or of making an assessment of the merit of the development application on the basis of the current approval for the child care centre. Those matters are not determinative of the exercise of discretion and the analysis required in the assessment of the proposed development must stand or fall on the merit of the development application itself.
Other Submissions
Mr Haydon addressed me in oral submissions about a case that he said involved similar principles to this appeal: Ansett Transport Industries (Operations) Pty Ltd v Brisbane City Council {1987} QPLR 168. The Court considered an amenity issue of a proposal to develop a fast food restaurant in a residential area on Moggill road in Brisbane’s western suburbs. Moggill Road was a busy major arterial road. The respondent Council wished to restrict such development to established groups of commercial development. The appellant argued that the land was unlikely to be used for residential development because of its location and its inferior amenity, it being significantly affected by road traffic noise. The development would present as a reasonably attractive non-residential building. The respondent conducted a survey to establish that residential development on major arterial roads continued to occur. The land did not form part of an established, discrete or compact group or cluster of commercial development. The respondents planning policy was that fast food stores not be developed in a random distribution along such major arterial roads.
Whilst the Court did not approve the development, it was a special type of commercial development. The respondent’s policy was understandable. I consider that the development in that case is distinguishable from proposed development in this appeal. The latter is a more benign and understated development with an appearance not unlike a residential development and on a one-off site on a busy major arterial intersection.
Onus of proof
The onus of proof is carried by the appellant who must persuade me that there are sufficient grounds to justify an approval of the development application despite conflict with the planning scheme.
Findings in Respect of the Grounds of Appeal …….
In respect of the grounds of appeal, I make the following findings:
Ground 12 - Overall Outcomes (a) to (c) and (e) to (g) are not applicable and in respect of Overall Outcome (d) the development, whilst outside a neighbourhood centre, nevertheless merits approval. The only Specific Outcome that is relevant is SO1. Whilst there is inconsistency in a proposal for an office on this site in a Neighbourhood Residential Precinct, I find that despite conflict with the planning scheme the proposal should be approved, there being sufficient grounds to justify that decision.
Ground 13 - My findings are the same as in respect of Ground 12.
Ground 14 - I find that the Minor Centres' Code is not applicable. The proposed development is consistent with the Code.
Ground 15 - For reasons that I have referred to in the Conclusion, the development is appropriate within the locality.
Ground 16 - Whilst there is an intensification of use on site there is not in the broader view of the planning scheme an intensification of an inconsistent use within a residential area and I find that there will be no adverse impact on residential amenity because, amongst other things, of the built form and the current approval and existing use and history of the site, including part of the site having been a former road and/or road reservation.
Ground 17 - I find that an approval of the proposal would not have an adverse impact on existing and likely future land uses in the district and any future proposal for any other site would be assessed on its merits. The site has particular features which more likely than not will set it apart from similar development applications for sites elsewhere in the district.
Ground 18 – For reasons that I have referred to in the Conclusion, the Development Application should be approved.
Conclusion
I agree with Mr Byrne that the site, even if not "unique", is a one-off site because of its own specific features. Part of the site is a former road and/or road reserve. Hindley Street has some time ago been formed into a cul-de-sac on the northside of the major intersection so that it no longer has connection with the arterial roads. The existing use, whilst it does have a residential component, is primarily an office use. The current approval is for a non-residential use, namely a child care centre. In my view the child care centre despite its having similar floor area or covered structure areas to the proposed development, has a greater visual presence and would almost of necessity involve greater traffic movement and people activity than the proposed development. Whilst there may be some synergy between the establishment of a child care centre in proximity to the school and both those uses are not uncommon in residential areas, the child care centre in my view would have a greater impact on residential neighbourhood amenity than the proposed development.
I have visited the site with the parties on an inspection. I have had the benefit of town planning advice from the town planners and traffic experts. The site is not attractive for residential development - either detached dwellings, dual occupancies or multiple dwellings.
In my view an office development, whilst an inconsistent use, on balance is an appropriate use in the particular circumstances of this site, for a number of reasons:
· The proposed development is not likely to impact on neighbourhood centres from a planning or economic perspective. I have formed that view on the whole of the evidence.
· The proposed development is not likely to impact on the availability of land for residential development in the district;
· Both the existing use and the current approval are substantially or would be of a non-residential use;
· I do not consider the site as being one which would be attractive for residential development;
· The proposed development does not have the traffic impact that the current approval would have;
· The built form of the proposed development is attractive, low-key design - even with moderate and reasonable advertising signage – that fills in a gap in the streetscape that will not be out of keeping with the competing corner areas of the major intersection nor with the residential neighbourhood within the district;
· An approval of the proposed development would not lead to other applications either being made or relying upon this approval because each development application must be considered on its individual merit and the particular circumstances of this site are likely to make any comparison irrelevant;
· The potential type of tenancies in the proposed development I think are more likely than not to directly serve residents in the locality simply because the size of the proposed development and the number of separate offices (potentially three in number) lend themselves to the type of service provision that would achieve that purpose in the planning scheme;
· The child care centre has a greater visual presence and a greater traffic and activity level than the proposed development it is likely to have;
· The development would not adversely impact on the amenity of the Neighbourhood Residential Precinct;
· The development would not detract from the character of the residential neighbourhood;
· The conflict with the Minor Centres code is not material;
· The proposal does not amount to ‘ad-hoc’ development.
In my view the conflict with the planning scheme in respect of an inconsistent use in this Neighbourhood Residential Precinct is minor. There are sufficient grounds to justify the approval of the Development Application despite such conflict. The appeal should be granted. The parties should have liberty to apply, if the necessity arises, about the imposition of conditions on the approval and/or costs.
Orders
(1) The appeal is allowed.
(2) The application is approved.
(3) The parties have liberty to apply.
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