Fima and Associates as Agents for TMK Pty Ltd v Toowoomba City Council

[2003] QPEC 69

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Fima & Associates as Agents for TMK Pty Ltd v Toowoomba City Council [2003] QPEC 069
PARTIES:	FIMA & ASSOCIATES AS AGENTS FOR TMK PTY LTD Appellant v TOOWOOMBA CITY COUNCIL Respondent
FILE NO:	BD2992 of 2003
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	22 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2003
JUDGE:	Quirk DCJ
ORDER:	I am prepared to allow the appeal and grant the extension sought subject to the condition which the appellant is content to accept.
CATCHWORDS:	BUILDING CONTROL AND TOWN PLANNING – town planning – appeal against council refusal to extend currency period
COUNSEL:	Mr M. Rackemann for the Appellant Mr S. Ure for the Respondent
SOLICITORS:	Connor O’Meara for the Appellant Toowoomba City Council Solicitor for the Respondent

1. This appeal arises out of the appellant’s request (made under s 3.5.22 of the Integrated Planning Act) for an extension of the currency period of a development approval for a multi-storeyed accommodation unit complex in Toowoomba.  The relevant parcel is located in the Mt Lofty area and is on the northern side of Stuart Street.  It slopes to the west, enjoys extensive views of the city in that direction and overlooks the sporting oval known as Heritage Park.  The subject approval was given on 23 February 1999.  On 12 March 2002 its currency period was extended to 12 May 2004.  Accordingly the approval is still current.  The request under consideration was made on 10 June 2003 and seeks to extend the currency period to 14 September 2005.

1. It has to be noted that the original proposal involved a number of allotments.  The part of it with which we are concerned (an 8 storeyed building containing 30 accommodation units) occupied part of Lot 4 which has a total area of 8703m².  There were two further components of the proposal which were called Stages 2 and 3.  The former involved eight accommodation units in three storeys over a semi-basement car park on the remainder of Lot 4.  The latter comprised five two storey units in the style of townhouses.  It was to be located on two allotments adjoining Lot 4.

1. The components of the proposal involving Stages 2 and 3 were separately approved on 14 September 1999.  In September of 2002 an application was made for an extension of the currency period.  This was granted with the result that the approval for Stages 2 and 3 will not lapse until 13 September 2005.

1. In the meantime the applicant has lost the opportunity to acquire the allotments on which Stage 3 was planned.  Its intentions are now confined to Stages 1 and 2.  As Mr Challenor, the appellant’s town planning consultant pointed out in his evidence, the loss of these two allotments will necessitate an adjustment to the access arrangements to Stage 2 but an appropriate resolution of this should present no real difficulty.

1. As was explained by Thomas Knox, a principal of the appellant, who has for a number of years been active in commercial and residential development on a substantial scale in Toowoomba, market considerations and programming delays with other projects stood in the way of the commencement of this proposal.  However he now wishes to go ahead with it and, in June of 2003 sought an extension of the currency period to 14 September 2005 to bring it in line with the extension given in respect of Stages 2 and 3.  It is now intended to carry out what was formerly described as Stages 1 and 2 as one development.

1. In the consideration of this matter it has to be remembered that the lapsing of approvals is governed by s 3.5.21 of the Act.  For an approval involving a Material Change of Use the currency period of four years (unless otherwise provided for by the approval) is allowed (s 3.5.21(2)).  Sub-section (1) requires that, with a Material Change of Use, the change of use must “happen” before the end of the currency period.  Some assistance in how “happens” should be understood can be had from McDonald v Douglas Shire Council (2003) QCA 203 in which it was held that use of land as a resort had not “commenced” even though works and (incomplete) construction had been carried out.

1. Accordingly if this development is to proceed a currency period sufficient to allow necessary planning, design and preliminary works together with construction and other development work to be completed prior to its expiration would be called for.  Although a currency period extension to 14 September 2005 is sought, the appellant would accept as a condition to any extension that construction commence by no later than 31 December 2004.

1. A decision on a request to extend a currency period is governed by s 3.5.23.  Most specific guidance as to how the relevant discretion should be exercised is found in this section.  It has to be said however that a flexible rather than a rigid approach to currency periods emerges when Division 5 of Chapter 3 is read as a whole.  Longer periods for more complex projects are expressly contemplated by the explanatory memoranda. 

1. The Council in refusing to grant the extension gave the following as its reasons for so doing:

1.          The proposal is Stage 1 of a stage development approval;

2.          A previous extension has already been granted for Stage 1 until 12 March 2004;

3.          Council reasonably expects the development to be undertaken within five years of its original approval;

4.          Council’s new planning scheme took effect in March 2003 and has implications for the nature of development considered acceptable for the subject land.

1. The relevance of ground 1 to the consideration of this matter is tenuous.  Notwithstanding the reference to the concept of staging in the original proposal, the subject approval was not, in the true sense, a “stage development approval”.  Each approval was a discrete approval.  If the ground was meant to infer that an approval of an extension would lead to a further drawing out of a stage development it would be wrong.  The position of the appellant is that what was called Stages 1 and 2 would now be completed together.

1. Similarly ground 2 is of questionable relevance other than indicating the fact that the approval remains valid until March of 2004.  Ground 3, aside from purporting to be a statement of what the Council’s expectations might be puts in issue the reasonableness of those expectations and this is the determinative question in this application.

1. Ground 4 raises considerations which are clearly relevant to the matter.  In dealing with it some guidance might be had from analogous situations in other areas of the law where extensions of prescribed time limits may be allowed.  It is generally accepted that some material must be provided to show:

·     what has given rise to the need for an extension and whether any extension is, in the circumstances reasonable; and

·     whether the extension will give rise to undue prejudice to other interested parties.

Accordingly the case calls for an examination of:

·     the circumstances that have given rise to the need for an extension of the currency period; and

·     any prejudice to the community’s interests in the proper planning of this area that might arise from the extension.

1. The appellant’s evidence on the first of these matters was understandable and plausible.  The realities are that development on this scale is very much driven by commercial considerations.  As was pointed out this was not a case where the approval was obtained simply to create a valuable asset to be retained in anticipation of its disposal at a more opportune time.  I accept the appellant’s evidence in this area as a satisfactory explanation of the need for the extension and that the extension sought is consistent with a reasonable time span for the completion of the proposal.

1. The issues of real importance in the appeal focus upon the express planning strategies for the area.  The new planning scheme for Toowoomba came into effect in March of this year.  Assessments of the impact of the proposed development in areas that are important in a town planning sense were carried out by two experienced consultants, Mr Challenor and Mr Humphreys.  The telling feature of the proposal is its visual presence as an eight storey structure in the area in which it is to be located.

1. At the time when the approval was first granted, a now superseded town planning scheme was in place.  In that scheme the subject land was in an area governed by Development Control Plan No 2.  The stated intent for this development control plan included a statement that:

“It is the intention of this DCP to ensure the values of the community are realised and that thoughtful planning and design will create unit developments which contribute in a positive way to the streetscape and quality of life of the community”.

1. The importance of impact upon streetscape is re-stated in cl 2(2) of the DCP which provides:

“Where the consent, approval or determination of Council is required with respect to a development, or a particular aspect of a development, Council is to consider the following:

(a)        height, bulk, siting and orientation of any proposed building;

(b)        extent to which the building and landscaping complements the positive elements of the streetscape;

(c)        location, extent, treatment and quality of proposed landscaping areas;

(d)        location and layout of proposed carparking areas;

(e)        location of proposed access points; and

(f)        the existing and likely future amenity of the area.

Having particular regard to the likely impact of the development on –

(A)       existing and likely development on adjoining sites;

(B)       the streetscape;

(C)       the scale and character of existing development in the area;

(D)       the degree of privacy retained by residents;

(E)       any other matter considered relevant by Council.”

1. Relevant performance criteria generally require that building height from the street frontage is to reflect the height of adjacent development although it is accepted that:

“Council may approve of alternative design elements where the particular circumstances demand”

Such circumstances include but are not limited to those where the site represented a transition between residential and non-residential development.  Implementation criteria for an objective relating to visual and acoustic privacy and security picked up the question of building height.  Criterion (d) (performance criterion (i)) refers to a maximum building height of two storeys.

1. Prior to the approval, the assessment made by Council officers recognised possible tension between the proposal and some of these provisions.  It was noted that:

“The issue of streetscape is of particular relevance in this instance given the nature of the site and the surrounding land uses.  The site is located in the Mt Lofty area and is elevated.  The adjoining residential development south of the subject site is composed mostly of single-storey dwellings on the elevated side of Stuart Street.  The subject land adjoins large open space areas of the Heritage Oval to the west and north of the site.  Through the north of the subject site is Horn Park.”

It was later observed that:

“It is considered that the Stuart streetscape is not a normal intact residential streetscape given the size of the subject site (8073 m²) which is relatively under developed, the adjoining parkland to the north and the large retirement village opposite the site which backs on to Stuart Street.  The proposed building has been designed and sited having regard to the existing topography and the landscape elements to minimise impacts on the Stuart streetscape.”

1. After noting that the proposal does not satisfy certain of the performance criteria found in the DCP, the assessment referred to the Council’s discretion to approve alternative design elements on allotments and locations between residential and non-residential land uses and that the subject land fitted this description. 

1. In dealing with these matters the assessment opined:

“The proposed development is considered to be of a high standard of construction and design which has regard to the existing landscape elements which dominate the streetscape and the skyline of this location.  The building will clearly be visible from Stuart Street however it should not detract from the existing streetscape.  Further it is considered that a well designed building on a large well landscaped site could contribute in a positive manner to the existing streetscape at this location.”

1. In a physical sense little has changed in the area since the initial approval.  Mr Challenor agreed with the assessment made by the Council planning officers and believed that their observations were just as relevant in present circumstances.  Mr Humphreys did not share these views and believed, for reasons which he explained, that the visual impact of the proposal upon the area’s streetscape, and its general visibility were not acceptable in planning terms.  He clearly did not support the Council’s approval of the earlier application and further believed that there has been a firming of opposition to development of this kind in the Council’s formal planning instruments.

1. Following initial approval, but before the first extension, the DCP was amended to expressly include the possibility that unit development might exceed two storeys (and extend to eight storeys) provided certain things could be demonstrated.  Such matters included that the building should not intrude above the skyline from certain points and should be contained within the existing tree canopy.  Mr Challenor expressed the opinion that these circumstances existed here.

1. At the time of the extension the planning officer who reported in favour of it observed:

“The proposed use remains in accordance with the Council’s forward planning documents.  In particular, the proposal satisfies the provisions of DCP No 2 – Accommodation, Unit Development including the performance criteria applicable to unit development above two storeys introduced subsequent to the approval.”

1. In the current planning scheme the subject site is included in the Mixed Housing zone.  The provisions relating to this zone appear in s 4.7 of the scheme.  The statement of intent indicates that the zone is intended to provide choice of housing types locations and densities including provision for higher residential development than traditional housing.

1. A part of the statement of intent upon which reliance was placed by the respondent contemplates:

“A predominant housing type of single and two storey detached houses.  Buildings of greater than two storeys are preferred only in the Kitchener Street part of the office residential precinct”.

The subject land is not included in this identified area.

1. However a reading of the scheme as a whole indicates that while buildings of more than two storeys are not the “preferred” elsewhere such development is not entirely ruled out in other areas of the Mixed Housing zone.  If one refers to the assessment table appearing in s 4.7.2 it can be seen that dwelling units greater than 8.5m in height are subject to impact assessment and are accordingly “notifiable” applications.  What is important is that development which falls within the “impact assessable” column falls into two categories.  When an asterisk appears, the development is not only impact assessable but is “not preferred”.  What this denotes is explained in s 4.5.2(4) of the scheme which provides:

“Not preferred” designation indicates Council’s general policy position that the nature and normal operational characteristics of the use and its potential impacts are likely to be inappropriate and inconsistent with the intent of the zone, the scheme strategies and the DEO’s.”

1. In the Mixed Housing zone assessment tables, multiple units greater than 8.5m in height are impact assessable.  They do not however fall into the “not preferred” category.  Accordingly such development is not regarded as “likely to be inappropriate or inconsistent with the intent of the zone, the scheme strategies or the DEO’s.  The status of such development is comparable to that which required town planning consent under the previous scheme.

1. In the determination of this appeal I see this as a matter of some importance.  While I have respect for the views of My Humphreys and do not, for a moment, reject his opinion on the merits of the proposal as untenable, I believe that there is also considerable force in the views expressed by Mr Challenor and that it would be unjust to deny an extension in this case when controls that were in place at a time when the initial approval was given and later extended have not been subject to any substantial change in the new planning regime.

1. These considerations distinguish this case from one such as Seymour CBD Pty Ltd v Noosa Shire Council (2003) QPELR 473 where the changes in planning controls were quite marked.

1. I am satisfied on the evidence given in this case that an extension of the currency period sought is not only reasonable but would not prejudice the implementation of the planning scheme in any important way.  I am prepared to allow the appeal and grant the extension sought subject to the condition which the appellant is content to accept.