Fortier Pty Ltd v Noosa Shire Council

[2000] QPEC 64

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Fortier P/L v Noosa Shire Council [2000] QPE 064
PARTIES:	FORTIER PTY LTD (ACN 071 705 685) Appellant v THE COUNCIL OF THE SHIRE OF NOOSA Respondent
FILE NO/S:	669 of 2000
DIVISION:	Appeal
PROCEEDING:
ORIGINATING COURT:	Planning and Environment Court
DELIVERED ON:	29 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	9 and 11 September 2000
JUDGE:	Senior Judge Skoien
ORDER:	Appeal dismissed.
CATCHWORDS:
COUNSEL:	Mr M Hinson S.C. for the appellant Mr T Trotter for the respondent
SOLICITORS:	Barwicks Wisewoulds for the appellant Wakefield Sykes for the respondent

1. This is an appeal from the Council’s refusal of an application by Fortier for a material change of use of land at McKinnon Drive, Tewantin.

Factual Background

1. The land is part of a site zoned Special Residential pursuant to a Plan of Development and the application seeks to modify the Plan of Development to increase the number of allowable lots from 126 to 144, an increase of 18 lots.  The current zoning resulted from a previous approval by the Council to rezone the land from the Rural zone to the Special Residential zone to allow for the subdivision of the land into 126 lots of minimum area 1500 square metres.

1. The first stage, comprising 44 allotments (all of which exceed 1500 m5 in area), has been developed and 15 dwelling houses have been constructed or are under construction.  On my inspection of the site I thought that they tended to be spacious houses, which, because of the relatively large allotments are able to give the impression of being set in gardens of generous size. This first stage comprises that part of the estate to the west of the central entrance road (Noosa Banks Drive) and contains forty four lots.  The second stage of the development (the one with which this appeal is concerned) is to the east of Noosa Banks Drive and has open parkland on its northern, eastern and southern sides.  In broad terms it is designed in two concentric circular developments.

1. This application is for the modification of the second stage which currently comprises the balance eighty-two lots of the designed one hundred and twenty-six.  The material change is to the internal allotments within a circular collector road.  Allotments around the perimeter differ only marginally from the previous approval.   These are all considerably larger than 1500 m5 but the rear of them, being within the Q100 flood line, cannot be built on.  They do, however, have ample building platforms towards the road frontage, on which large houses can be built.

1. Under the proposal for the second stage, while the overall average size of the allotments will be 1500m², some sixty-six lots will be smaller.  Fifty-three of those lots will be of areas ranging from 1017m² to 1250m².

The issues

1. While there were six grounds of rejection of the application which became the issues in the appeal, they can realistically be reduced to one, that is the effect of the changes which would be wrought by the proposed additional lots on the character on the estate.  That was the point which was argued on the appeal.

Strategic Plan

1. The intent of the Special Residential zone is set out in s.2.3.5 of the Strategic Plan, materially as follows:-

“This zone caters for specific residential developments, which may be appropriate upon particular sites, but where such developments do not strictly accord with the provisions pertaining to the conventional residential zones.  The nature, intensity and character will not exceed that of the surrounding area.”

1. For this development the obvious and relevant way in which this development varies from the conventional residential zones is the specified minimum size of the allotments, 1500m5.  That is considerably larger than the usual residential zone allotment, though smaller than the typical rural residential allotment.  As to the last sentence of s.2.3.5, I do not know how the “nature” or “character” of a development can “exceed” a surrounding area.  However the reference to the “intensity” can quite easily be seen to relate to the size of allotments.  A development containing lots of 1000m5 (for example) can be said to be more “intense” than developments containing lots of 1500m5.

1. There was debate between the expert town planning witnesses, Mr. Buckley for Fortier and Mr. Venn for the Council and between Mr. Hinson S.C. for Fortier and Mr. Trotter of counsel for the Council, about the meaning of “the surrounding area”.  As the circumstances of this case show, it cannot be taken to relate only to the area outside the particular development in question.  The bulk of the area surrounding this second stage is rural.  All of the area surrounding the development as a whole (the first and second stages) is rural.  In the rural zone development is much less intense and by definition it is not residential at all.  So the “surrounding area” in this case cannot be taken to be the rural zone around the Special Residential zone development taken as a whole. In the consideration of the initial development as a whole.  For consideration of this appeal, the “surrounding area” must be restricted to the only relevant area adjacent to and affected by the proposed variation, that is, the first stage.

1. In section 23 of the Strategic Plan which deals with detached housing in the Tewantin locality, there appears this:-

"The area along McKinnon Drive in the north of the locality, has allotments of more than 1,500 m² in an open space setting including Tewantin State Forest and extensive areas between Cooroibah Creek and Wooroi Creek.

These neighbourhoods have separate identities which are an important element of the residential character of the Tewantin locality valued by its residents."

To me, this represents a clear expression of intent that the minimum size of the allotments in the relevant area is worthy of preservation.

1. Section 23.1.3, which identifies the strategic intent with respect to the detached housing area contains this relevant provision:-

"23.1.1.3 -        It is intended to provide for the consolidation, as well as the limited expansion of Tewantin's detached housing area.  This will be achieved while maintaining the distinct character and identify of individual neighbourhoods by:

-     Containing urban detached housing to the Detached Housing and Semi-Detached and Attached Residential designations.

-     Maintaining allotment sizes and densities consistent with the character of the particular neighbourhood."

1. Again I read this as literal expression of the expression of intention to which I referred in para. [10]. Both s.27.7.3.4 and s.27.7.4.3 set out aims which emphasise the maintenance of the character of the residential neighbourhood.

The Effect of the Proposal

1. I start with the point that the Strategic Plan, for the Special Residential zone, in the provisions I have discussed in paras. [7] - [12], expresses an intent to preserve the character of existing developments in the Special Residential zone and recognises that the zone is to contain lots of minimum size of 1500 m5.  It is trite to observe that except in the rarest of cases such expressions of intent are not taken to be absolute and very rarely do circumstances exist which would demand that.  But at least it states a standard which a party who wishes to depart from it must make out a case for doing so.

1. Such a case might be based on such things as land topography, efficiency of provision of utilities, aesthetics, for example.  I cannot, however, accept that a proper reason might simply be the increase in the number of allotments for reasons unexplained but obviously able to be divined.  This is such a case.  No reason for the increase was given and no probable advantage to be gained from an increase in lots with the consequence that the clear intent of the Strategic Plan in lot size, was advanced.

1. In the light of that, and bearing in mind the onus which Fortier undoubtedly bears, I would dismiss the appeal.  However I should deal with the factual issues generally.

1. Mr. Buckley and Mr. Venn gave conflicting evidence on the question whether the development as originally permitted would be different in character than as proposed.  Of course it goes without question that the character would be more “intense” than the character of stage 1, if pure numbers of allotments and allotment size were the sole yardstick.

1. I accept however that the relevant considerations cannot be as strict as those.  Otherwise a single allotment of less than 1500m5 (or at least a small knot of such sized lots) although forming a tiny part of the overall development would be fatal.  On the other hand a sizeable ghetto of small lots, even though the overall average remained over 1500m5, could not be acceptable.  The proper test must be wider than that, and must be related to the general effect of the more intense development.

1. The general effect of this modification is not so minute on the one hand, or so dramatic on the other, that reasonable minds could not possibly be left in doubt.  I would concede that reasonable minds could differ on this central question.  However I have come to the conclusion on the balance of probabilities that its effect is not inconsequential, that it would change the character of the development.  The sheer number of the reduced sized allotments (most notably 53) and the amount of that reduction (most notably 483m5 - 250m5), would make it difficult to think otherwise.  The central node of the second stage when built on, would surely present a “tighter” or more intense form of development than the development in stage 1 or the outer circle of stage 2.

Conclusion

1. The appeal will be dismissed.