Ganter and Ors –v- Townsville City Council and Anor
[2004] QPEC 58
•8 October 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Ganter and Ors –v- Townsville City Council and Anor [2004] QPEC 058 |
PARTIES: | GANTER, Jeoffrey Mishell Appellants Against TOWNSVILLE CITY COUNCIL Respondent JUNIPER DEVELOPMENT CORPORATION PTY LTD Co-Respondent |
| FILE NO: | D19/04 |
| PROCEEDING: | Appeal against Council’s approval of a material change of use application. |
| DELIVERED ON: | 8 October 2004 |
| DELIVERED AT: | Townsville |
| HEARING DATES: | 16, 17, 18, 19 & 20 August 2004 |
| JUDGE: | CF Wall QC |
| ORDER: | Appeal dismissed. |
| CATCHWORDS: | BUILDING CONTROL AND TOWN PLANNING – Material change of use – mixed use development – hotel, units, shops and restaurants – conflict with planning scheme – proposal consistent with draft city plan – significant weight given to draft plan – new direction – urban renewal – size, bulk and height of proposed building – amenity issues – community need – planning grounds sufficient to justify development notwithstanding conflict with planning scheme Legislation: Local Government (Planning & Environment) Act 1990 ss. 4.4 (5A), 4.13 (5A) Cases referred to: |
COUNSEL: | Mr D. Turnbull for the Appellants |
SOLICITORS: | Robert Milne Legal for the Appellant Townsville City Council Legal Services for the Respondent Suthers Taylor for the Co-Respondent |
A. INTRODUCTION
HIS HONOUR: This is an appeal by submitters against the
decision of the respondent to approve an application by the co-respondent for a development permit for a material change of use in respect of land at 69 - 77 Palmer Street, South Townsville.
The site is presently occupied by the Crown Hotel but the hotel is only open for limited periods. The respondent's decision notice is dated the 16th of December 2003 and approval was given for a mixed use development comprising
- multiple dwellings (units)
- hotel
- restaurants
- shops
B. THE PROPOSAL
The proposed development is shown in the photographic representations, Exhibits 17A, B and C and in the plans in Exhibit 3.
The following description of the proposal is taken from Exhibit 6, section 3.
"3.0 THE PROPOSAL
3.1The proposal seeks to demolish all existing buildings and construct a mixed-use complex. The complex will comprise:
· at ground level, an hotel (bars, kitchen, lounge), 2 restaurants, 2 shops, 2 access lobbies, porte cochere, 14 car parks and landscaping;
· outdoor dining areas flowing from within the site onto the re-shaped footpath areas on Palmer Street;
· a basement car park with 107 spaces, accessed by a driveway off Morehead St leading to a ramp down adjacent to the site's eastern boundary;
· above the ground level, units built within two attached "towers", one up to 6 floors and the other up to 8 floors;
· a recreation area including lap pool at level 8; and
· roof terraces on top of the 4 units at level 9.
The following table summarises the various components:
| Use | Number | Gross Floor Area |
| Hotel | 1 | 466m2 |
| Restaurants | 2 | 210m2 |
| Shops | 2 | 200m2 |
| Units - 2 bedroom | 28 | |
| Units - 3 bedroom | 28 | |
| Car parks - ground floor | 14 | |
| Car parks - basemen | 107 |
3.2The building has been "broken" in a visual sense by providing, in effect, two joining "towers", one with 6 storeys of units above the ground floor, and the other with 8 storeys of units above the ground floor. Each "tower" has a separate lobby, lift and stairs on the ground floor.
3.3Similarly, the ground floor has been broken to "open up" the site from the street. The hotel is to the western side of the building while the restaurants and shops are to the east - the two parts divided by a large area (arcade) of pedestrian space to invite passers-by into the complex. This open area is to be paved and includes a water feature and landscaping. The building at ground level is set well back from the property boundary to deliberately "blur" the distinction between the footpath on the road reserve and the pedestrian spaces within the site."
"3.4The units are designed for a mix of tourist accommodation and permanent residential use. In practice, it is expected that the majority will be let through a management system for holiday occupation." "While the individual units will be strata titled and sold individually, those owners who choose to, can place their unit into a common letting pool for tourist accommodation."
The appellants submit that on their interpretation of the relevant definitions in the planning scheme the development is eight and 10 storeys high rather than seven and nine storeys. Nothing turns on this difference as the appellants submit that in either case the size, bulk and height of the development is such that it should not be approved.
Under the respondent's transitional planning scheme only the multiple dwelling component of the proposal is impact assessable.
C. THE SITE
Its location is shown on the aerial photograph, Exhibit 18. It is on the corner of Palmer and Morehead Streets, east of Plume Street and faces Ross Creek to the north. Its rear boundary in part adjoins the appellants' properties which front onto McIlwraith Street. Those properties are old houses likely to be redeveloped in the future. Mr O'Brien's opinion (page 336) was that there is "definitely a reasonable prospect" that they would be redeveloped. Mr O'Brien was the landscape architect and visual analysis witness called by the appellants.
The site comprises six separate but contiguous allotments of a total area of 4,130 square metres. Primary frontage is to Palmer Street and is about 66 metres long. The Morehead Street frontage is about 60 metres long. The eastern boundary is about 50 metres long and the rear boundary about 100 metres long.
The property adjoining the site on its eastern boundary is a large backpackers hostel and next to that is the Metropole Hotel. The owner of the Metropole Hotel supports the proposal. Only the appellants oppose it.
D. THE LOCALITY
The following description is taken from Exhibit 13, section 3.2:
"3.2 Surrounding Land Use
3.5The Subject Land is situated within a district developed for a mix of residential, commercial, hospitality (restaurant and hotel), tourist accommodation and storage (warehouse) purposes.
3.6The character of the district is essentially one of mixed use. The section of Palmer Street to the west of Plume Street has developed as a dining/entertainment precinct accommodating a mix of uses including restaurants, hotels, shops and short-term accommodation. This area is characterised by medium and high-rise residential/accommodation complexes, outdoor dining and an active street life.
3.7A notable feature of those lands located to the north of Palmer Street between Dibbs, Tomlins and Plume Street, is the existing built form which is dominated by a number of multi-storey, high rise residential and commercial buildings ranging in height from seven (7) to ten (10) storeys. These include the Quest and Riveria residential apartment buildings, and the Telstra commercial office tower. Development in this area forms a compact node of high-rise development that corresponds with prevailing height controls that limit buildings to a maximum height of twelve storeys in this part of South Townsville.
3.8The section of Palmer Street to the east of Plume Street while also of mixed-use character is generally characterised by uses of lesser scale and intensity, of predominantly one (1) to four (4) storeys in height. Uses in this area of Palmer Street include low-rise residential apartments, short-term accommodation, residential dwellings, restaurants and commercial premises. This area is characterised by a less active street life, with a lower number of restaurants and associated outdoor dining facilities.
3.9Land to the south of the Subject Land, having frontage to McIlwraith or Morehead Streets is developed for a mix of residential, community (preschool) and warehouse (storage) uses."
E. THE ISSUES
As litigated these were the planning scheme and the extent to which the proposal conflicts with the scheme, urban renewal, height, bulk and scale, traffic and amenity. The latter two by themselves would not, the appellants conceded, warrant rejection of the proposal. Height was the main issue and was the area of primary conflict with the planning scheme. Urban renewal was related to these issues.
F. PLANNING SCHEME
This is a transitional planning scheme (Exhibit 10) and was gazetted in 1994. It is soon to be replaced by the draft city plan, Exhibit 11. Being a transitional scheme the application must be refused if it conflicts with the relevant strategic plan or the development control plan and there are not sufficient planning grounds to justify approving the application despite the conflict; sections 4.4(5A) and 4.13(5A) Local Government (Planning and Environment) Act 1990.
The strategic plan designation of the land is tourist and entertainment which designation "covers areas with major tourist and entertainment potential needed to provide for the requirements of the population and visitors to the city". The relevant development control plan is DCP4 (South Townsville) Precinct 1 (Palmer Street) and the zoning is special development.
The proposal (subject to its height) meets the objectives of the tourist and entertainment designation and the intent of the special development zone. At the hearing most attention was directed to DCP4.
DCP4
The aim of DCP4 is to provide for the revitalisation of South Townsville as an "inner city village". This is related to the objectives of the Building Better Cities Program. The objectives of DCP4 include:
- encourage new development which complements but does not imitate the existing character of the suburb
- provide for the further development and enhancement of Palmer Street and Ross Creek as the focus for accommodation and tourist facilities
I will refer to the evidence in relation to urban renewal shortly.
The maximum height of buildings in this part of Palmer Street is four storeys (sections 3.5, 6.1, Table 6.1 and figure 2) and the present proposal clearly conflicts with this limit.
The character of Precinct 1 is dealt with in section 5 and the following statements are relevant:
"SECTION 5 - PRECINCT CHARACTER
5.1 PRECINCT 1 - PALMER STREET
This precinct is focussed on Palmer Street and the Ross Creek waterfront. It is intended that it be developed further as a low to medium rise tourist/commercial and mixed use area fulfilling the needs of tourists and residents of the City. This precinct enjoys easy access to the City Centre, Flinders Street East, marina and bus terminal, and these attributes should be exploited. The preferred future character of Palmer Street is that of a "main street" with composite buildings containing tourist/commercial activities at ground level with residential and/or commercial above and pedestrian movement protected by verandas or awnings over footpaths.
Properties with frontage to Palmer Street should devote the ground floor to specialised shops, commercial activities, restaurants, support services and local recreation facilities with residential and/or other commercial occupation being limited to the first floor level and above.
Restaurants and cafes in particular will be invited and expected to "spill" onto the footpaths with outdoor dining, street planting, planter boxes, attractive signage and other quality street furniture. To achieve the proposed streetscape it is desirable that at least the street level have a zero setback to any Palmer Street alignment. This arrangement is also preferred for the first floor provided current building codes are satisfied. The scale of the streetscape shall be maintained when developing above the first floor level, with a setback being six metres or the height of the building in metres divided by two (2), whichever is greater.
Design of new buildings must respect the historic character of the area which is displayed most particularly by hotels such as the Australian, the Shamrock and the Metropole. Choice of materials, colours and signage must reflect the underlying architectural vernacular of the area however imitating the existing structures is not desirable.
Full on site parking provision will be required for any part of a building designed or used as commercial premises. Relaxation of parking requirement may be permitted for residential, retail or restaurant components of a building. In determining whether to relax parking requirements, the Council shall have regard to the exact nature of the residential use, on-street parking opportunities and contribution made by the development to streetscape and overall objectives of the Development Control Plan."
The DCP also envisages "a mixed commercial/tourist area overlooking Ross Creek, retaining pockets and some isolated examples of traditional commercial and residential built form" and new residential developments should harmonise "with traditional buildings through reinterpretation of the qualities of those buildings. Relevant qualities include bulk, scale, height, relationship to streetscape and materials."
The DCP also envisages that the "landscape character of the precinct shall be developed as an urban landscape of pedestrian priority and at a pedestrian scale." See the "Landscape Character" and "Built Form" sections at page 8 of DCP4.
A somewhat different approach is reflected in the draft City Plan to which I will refer shortly.
The other specific requirements of DCP4 to which attention was directed at the hearing are:
Setback (DCP4 section 5.1(b))
The extent to which the building does not comply is referred to in Exhibit 3 paragraph 7.3 and Exhibit 13 paragraphs 6.32 to 6.39. Perhaps the main reason for most of the non-compliance is that the setback requirements do not "envisage a building of the height proposed" as is pointed out by Mr Bullen, the appellants' town planner, in Exhibit 13 paragraph 6.37.Site cover (DCP4 section 5.1(c))
The extent of non-compliance is referred to in Exhibit 3 paragraph 7.3 and Exhibit 13 paragraphs 6.40 and 6.41 and mainly relates to the building above levels 1 and 2.Non-compliance in both of these respects results, according to Mr Bullen, in a building of excessive scale and bulk which would be inconsistent with the intent of the DCP and an over-development of the land; see Exhibit 13 paragraphs 6.38 and 6.41.
Car parking (DCP4 section 7.4 and section 16 of the planning scheme)
192 spaces are required. All sides agreed that a relaxation of this requirement is appropriate. The issue is the extent of that relaxation. 121 car parks are proposed. The appellants contend that 127 should be provided and the co-respondent says a relaxation to 120 is appropriate.Shadows
Section 17.2.6 of the planning scheme requires that shadows cast by a proposed development "should not block out reasonable provision of sunlight to adjoining dwelling units, both to indoor and outdoor living areas". The council does not have a policy relating to shadows. Mr O'Brien, for the appellants, concludes (Exhibit 14, page 29) that the shadow effects of the building would "block out reasonable provision of sunlight to adjoining dwelling units". Much of this would be due to the height of the building. The appellants sensibly conceded that this issue by itself would not be sufficient to reject the proposal if the other aspects were resolved favourably to the co-respondent.
Plot ratio (DCP4 section 5.1(d))
This should not exceed 2:1. The proposed development plot ratio will be 2.12:1. This was not a significant issue at the hearing.Relaxation provisions
(i) Building height
Section 6.2 of DCP4 provides:"6.2 VARIATION
(a)The maximum height of elevation in Table 6.1 may be varied by Council, where:-
(i)the additional height provides for a visually interesting roof line; and
(ii)the addition height would be in keeping with the existing streetscape.
(b)The maximum number of storeys and height of elevation in Table 6.1 may be varied by Council, under the following circumstance: -
(i)where the difference in height between existing buildings and new developments shall be no more than one storey when viewed from the public street.
(ii)the building, both in bulk and scale, has been designed to address the street both visually and functionally.
(iii)the provisions of the Residential Design Guidelines have been satisfied.
(iv)the particular development proposal satisfies all other requirements of the Development Control Plan and offers exceptional improvement to the streetscape or opportunities for heritage preservation."
(ii) Car Parking
Section 7.4 of DCP4 provides, so far as is relevant:
"7.4 CAR PARKING
Carparking requirements for any development within the planned area shall be strictly as required by Section 16 of the Planning Scheme subject to the following:-
(a)within Precinct 1, in order to reduce the conflict between pedestrian and vehicle traffic on footpaths, the access to on site car parking areas on properties which are on the southern side of Palmer Street should be limited where possible to McIlwraith Street. Alternatively, Council may require and accept a contribution in lieu of the required car parks in accordance with Subsection 16.3.2 of the Planning Scheme.
(b)within Precinct 1, in connection with development which provides for predominantly residential use, the Council may relax parking requirements in relation to the residential part of the building where it considers that the particular nature of the use does not warrant full compliance with the Planning Scheme."
Section 16.2.3 of the planning scheme provides:
"16.2.3 MODIFICATION BY COUNCIL
The Council may dispense with or modify all or any of the parking requirements if it considers that dispensation or modification is justified, having regard to:-
(a)the location of the site with respect to existing or proposed public car parking stations, available carparking areas or a high level of pedestrian accessibility;
(b)the particular circumstances of the proposed use, including hours of operation, anticipated intensity, and maximisation of the efficiency and safety of the car parking area;
(c) the existing uses on the site;
(d) the levels or depth of the allotment;
(e)vehicle access, whether it is inconvenient or hazardous;
(f)the provisions of any Development Control Plan affecting the site: and
(g)the proposed layout and size of car parking bays."
(iii)General
Section 10 of DCP4 provides:
"SECTION 10 - IMPLEMENTATION
Notwithstanding the provisions of this development control plan, the Council may consent to a modification or dispensation of any of the provisions of the plan where such a modification or dispensation is necessitated by the exceptional circumstances of the particular case, which may include unusual site characteristics, shape and utility of a site, special features of a particular development, a major amalgamation of land parcels, or nature and character of adjoining buildings."
G. DRAFT CITY PLAN (Exhibit 11) - WEIGHT TO BE GIVEN
TO IT
This has been "forwarded to the State Government for final sign-off prior to adoption." (Mr Schomburgk, Exhibit 6, paragraph 5.6.1)
On the 16th of December 2003 the council resolved to amend the draft plan in the respects set out at pages 176 to 181 of Exhibit 3. The amendments included increasing the building height in Palmer Street east of Plume Street from six to eight storeys. The current limit is four storeys.
Mr Schomburgk was General Manager, Planning Services for the Department of Local Government and Planning between 1997 and 1999, and has knowledge of the departmental approval process. He expects final approval of the draft plan to occur later this year. He does not think the amendments make the plan significantly different from what was advertised and understands that the changes were as a result of public submissions received during the public notification period; see pages 234 and 255. Some further amendments of a "relatively minor nature" were made in about June this year. He thinks the process now "should be a relatively tick and flick exercise". He considers it highly improbable that the Government will adopt an adverse attitude to the increase in building height as "that would not be considered to be a matter of State interest", rather a matter "left to the local Government to determine". He conceded it was "not set in concrete and that the Minister could do whatever she likes"; pages 256 - 257. I accept this evidence.
All witnesses agreed that weight should be given to the draft plan; Mr Schomburgk said "considerable weight" and Mr Bullen "appropriate or some weight". A balancing exercise is involved. Mr Bullen's very recent inquiries about approval of the draft plan indicated that "some State agencies were yet to sign off on the amendments"; page 481.
Mr Turnbull for the appellants agreed that the issue was what weight should be given to the draft plan.
In my view considerable weight should be given to the draft plan. It is, I find, likely to be approved by the end of the year. Mr Turnbull conceded that it is "self-evidently a new direction in planning and it has a different approach to assessment in particular", and that I should give it whatever weight I think is appropriate; pages 508 to 509.
H. DRAFT CITY PLAN PROVISIONS
The draft City Plan includes
(a) a city-wide Structure Plan
(b)Desired Environmental Outcomes (DEOs) on a city-wide basis
(c) a series of District Plans covering the city
(d) overall and specific outcomes on a district basis
(e) codes for development within districts.The subject site is within the Urban Residential designation on the Structure Plan and within District 1 - Townsville Central City on the District Plans map. Within this district the site is within Precinct 4 - CBD Tourist Core Precinct.
Various codes in the City Plan will apply given the proposed uses including the Multiple Dwelling Code, the Landscaping Code, the Parking and Access Code and the Works Code.
The maximum building height for all of the southern side of Palmer Street, including the subject site, is eight storeys. For all of McIlwraith Street it is four storeys.
The draft plan is a performance based planning scheme. The Codes set out the Overall Outcomes for the District, Specific Outcomes (SOs) for each precinct and then offer probable solutions (PSs) for each Specific Outcome.
The overall outcomes sought to be achieved for the Townsville Central City District are listed on pages 100 and 101 of the draft plan. No argument was directed to these. The proposed building here satisfies SO1(k) first dot point and it was not suggested it did not.
Building Height is dealt with in SO2 and so far as is relevant that provides as follows:
"(2) BUILDING HEIGHT
SO2 The height of buildings:
(i)is consistent with the desired character and amenity of the locality;
(ii)creates a skyline that provides variation and interest."
The major change here compared to the current planning scheme is the emphasis on desired rather than existing character and amenity of the locality.
The first probable solution for building height (PS2.1) is that the building height does not exceed eight storeys. Probable solutions are "a guide for achieving" the relevant specific outcome in whole or in part (section 1.10). Curiously, but not surprisingly, a probable solution is defined as "a possible means by which the applicable specific outcome...can be met".
The definition further provides that "the solutions are mandatory for self-assessable development and referred to by council for assessable development".
Apart from height the proposal complies with SO3 dealing with "Setbacks, Site Coverage and Plot Ratio".
Residential density, SO5, is exceeded but in my view the proposal is nevertheless consistent with SO5 in that it will be of "a density consistent with the character intended for the locality and (will provide) for a high level of amenity". Mr Bullen, Exhibit 13 paragraphs 6.57 - 6.62, and Mr Schomburgk, Exhibit 6 paragraphs 5.6.12 and 5.6.13, provide details of the extent of the excess. The reference by Mr Bullen in paragraph 6.59 to PS7.2 should be a reference to PS5.2. In my view the proposal satisfies the criteria listed in PS5.2 but even allowing for such an increase the residential density still exceeds that referred to in PS5.1.
Whilst other alleged conflicts were referred to these two, I think, are the main ones. They are the two to which Mr Bullen devoted most attention in his report, Exhibit 13.
I. URBAN RENEWAL - REVITALISATION AND BROADER ISSUES
Much evidence was devoted to this issue and it is clearly relevant under DCP4 and the draft city plan and both the draft plan and urban renewal/revitalisation are relevant to whether there are sufficient planning grounds to justify approving the application despite conflict with the planning scheme.
The principal witness for the co-respondent in this area was Mr Trevor Reddacliff. His report is Exhibit 5. Realistically there was not much difference of substance between his evidence and that of the appellants' town planner, Mr Bullen. Where there is difference I prefer Mr Reddacliff who I thought was more experienced. He also adopted a less site specific approach and emphasised the broader aspects of urban renewal taking into account the overall position of the Palmer Street precinct and its relationship to the CBD which is what the draft city plan does. I thought also that Mr Reddacliff was better able than Mr Bullen to place the Palmer Street revitalisation in the context of the Building Better Cities Program referred to in DCP4 and to explain how each is related.
I also prefer the evidence of Mr Schomburgk and Mr Chenoweth to that of Mr Bullen and Mr O'Brien because I though that the views of the former were more consistent with those of Mr Reddacliff and more reflected what is contemplated for this particular area by the draft plan and what is understood by urban renewal in the context of that plan.
In the context of this appeal the terms "renewal" and "revitalisation" are interchangeable and really mean the same thing.
South Townsville in general and the Palmer Street precinct in particular is presently undergoing much change and development activity is happening at a fairly rapid pace. The draft city plan recognises this.
Mr Reddacliff is intimately involved in the process, not as a developer but as Chairman of the Townsville CBD Task Force which is responsible for "revitalisation of the inner city region (which includes Palmer Street) by master planning, preparation of development strategies and negotiation with stakeholders and landholders"; see Exhibit 5 for further details. I am satisfied that he is well qualified in this area and I accept his evidence. He supports the present proposal. The CBD Task Force produced the CBD Masterplan and the draft City Plan reflects the "vision" of that plan; see Appendix C, Exhibit 7. The draft city plan includes the Palmer Street precinct in the CBD or city centre area.
There was no dispute about Mr Reddacliff's evidence that urban renewal is specifically aimed at revitalising the inner cities of major metropolitan and regional centres by using new catalysts which will encourage people to live, work and spend their leisure time in an inner city environment. Developments such as the present provide a "destination" and are "part of a tourist/residential environment". For Palmer Street the issue is street not allotment development which will cater for market demand as it is emerging and will emerge. This is not to lose sight of the necessity to consider each proposal on its own merits and in accordance with relevant local authority planning documents.
Mr Reddacliff supports the 9-7 or 10-8 storey design of the present building rather than 8-8 as the former has a softer, more acceptable aesthetic appearance. It also "provides for a visually interesting roof line"; see DCP4 section 6.2(a)(i).
Mr O'Brien agreed that the different tower heights proposed do create a skyline providing "some variation and interest"; page 327.
Such developments also require what Mr Reddacliff called a "reasonable critical mass" where a destination is created, here a mixed-use environment combing residential and tourist accommodation, hotel, restaurants and shops. It is designed to encourage visitor patrons and provide on site facilities for residents, temporary and permanent.
Mixed use is a "fundamental of urban renewal" and "catalyst developments" such as the present will stimulate further development not just in Palmer Street but also in McIlwraith Street where the height limit increases to four storeys under the draft city plan. The process involves "creating a new community and adding strength to an existing community".
There are taller buildings in the Palmer Street precinct west of Plume Street and I thought the appellants approach unnecessarily compartmentalised Palmer Street by accepting that urban renewal was a generally desirable concept but only to some extent east of Plume Street. Mr Reddacliff spoke of "designing a street and a catalyst for growth in the future".
Implementation of a master plan such as Mr Reddacliff is undertaking and the promotion of development such as the present, involves doing so in a responsible way sensitive to the surrounding environment and having regard to the local authority planning scheme.
It is important not to get too carried away by the utopian vision promoted by urban renewalists. Their views are clearly deserving of consideration but that must be in the context of the relevant documents that govern town planning and the controls and limits which are of necessity placed on that process. Likewise, to the extent that critical mass involves the economics of a particular proposal, economics should not be allowed to control or influence decision making and applications such as the present are not to be determined by reference to such matters. To proceed, a particular proposal must be acceptable according to proper town planning principles including urban renewal in appropriate cases. Mr Reddacliff has regard to the economics of particular developments but such considerations are not relevant to the planning issues I have to consider.
Urban renewal is about change but in a matter such as the present the nature and extent of change is governed by the relevant planning scheme or schemes.
Mr Reddacliff would not accept Mr Turnbull's criticism that the present proposal would have "far too abrupt an effect" on the existing streetscape of Palmer Street east of Plume Street. The building will clearly tower over others at the moment but I think it is nevertheless consistent with the draft city plan and its intent for this area. That plan itself will abruptly increase building height from four to eight storeys and there is likely to be a streetscape of built form of a pocket nature initially but that I think is inevitable with such a height increase.
I also have no doubt that the building will act as an urban renewal catalyst for further development as the type envisaged by the draft plan. There is at present an application before the council for a nine storey multiple dwelling and restaurant on land in Palmer Street east of Plume Street next to the Transit Centre; see Exhibit 18. I am unable to accept that only buildings gradually increasing in height above four storeys should be initially allowed in this part of Palmer Street. Nor do I think that the heritage values of the Metropole Hotel or the existing built form of Palmer Street east of Plume Street will be adversely affected by the present development. There is no suggestion that the Metropole Hotel will not stay and be representative of buildings of its style and character, just as the Shamrock Hotel and the Australian Hotel are.
The built form is already slowly changing from old to new, small to larger and this process is likely to continue. The existing Crown Hotel is not an original building and nor is the backpackers hostel between the subject site and the Metropole Hotel. The entire streetscape of Palmer Street is changing with suitable older heritage type buildings being retained and renovated but existing quite comfortably alongside newer and larger mixed use developments and hotels. The present proposal is part of that changing scene and in my view is not inconsistent with the Cultural Heritage Features Code in section 5.15 of the draft city plan. The draft plan also reflects the changes happening in Palmer Street and to that extent it has overtaken the current planning scheme including DCP4. It reflects the "momentum in Palmer Street" (Mr Reddacliff, page 116) and seeks to build on and continue that process. In his paper 'Changing Residential Density ... Why So Hard?', Exhibit 5C, Mr Reddacliff said,
"The trend towards the concept of urban renewal is known in demographic terms as the big shift. It is interesting to reflect on these statistics - 100 years ago 10% of our populations lived in the inner metropolitan area, today 50% and alarmingly 75% in 2025. So the demand is real and driven by the need of close proximity between residence and workplace."
The appellants accept a "reasonably large scale development" on the subject site but "want a development that would allow some access to breeze and some glimpses of views from anything they do on their land, a building that is smaller in scale, bulk and height which addresses the streetscape more reasonably and has a gap or some separation between the two towers". They propose four storeys for the eastern tower and six for the western; pages 117 and 118. To this extent they accept that building height should be approached by reference to the draft plan rather than the current planning scheme.
Without knowing any details of what type of development (if any) the appellants have in mind for their land it is difficult to comment on their position other than generally. They do not have a northern view or sea breezes at the moment and even with a development such as they propose for the subject site still will not have them other than some possible rear views if there was a gap in the towers. Their view at the moment is of McIlwraith Street and realistically any development on their land will face that street. The preferred building height limit for their land under the draft plan is four storeys and for the subject land eight storeys. The draft plan contemplates developments of different sizes on these adjoining sites. Conceding that it is not for the Court to redesign the proposal but simply to pass judgment on it Mr Turnbull submitted that as designed the proposal should be rejected.
As an architect Mr Reddacliff regards the proposed building as "attractive" and "as making a positive contribution to the character and streetscape of this part of Palmer Street". I agree. I think the podium or ground floor level tries to "bring in" Palmer Street and its design is such as to encourage pedestrian visitors and patrons.
Whilst this is not precisely the type of streetscape with zero setback that DCP4 aims for it is, I consider, a satisfactory compromise. In fact, Mr Bullen supported the ground floor design as having "active uses" - restaurants - in close proximity to the street. He considered that aspects of the development, particularly the podium level, contributed to the vibrancy which is an integral part of urban renewal; page 476. His main complaint was that the residential component was "excessively large" and he thought the critical mass benefits could be achieved by a "much lower scale development". Mr Turnbull conceded that "arguably, functionally the podium addresses the street".
I also think that the developers have endeavoured by the design to soften the external appearance of the residential and hotel components of the land. Even Mr Bullen conceded that the varied roof level was preferable to a single flat roof; page 502.
It will certainly be a large and noticeable building more so because of its position in Palmer Street but I do not think it will have the unacceptable or unreasonable town planning consequences postulated by the appellants.
Mr Bullen, Exhibit 13 paragraphs 6.10 - 6.12, takes the view that the proposed development is not compatible with the character, appearance and reasonable amenity expectations of persons in the surrounding locality and is incompatible in terms of scale and development intensity and for these reasons constitutes an over-development of the land. I am unable to agree. The surrounding locality in my opinion is not just the Palmer Street-Morehead Street-McIlwraith Street area but encompasses the Palmer Street precinct and on that basis the development is compatible and of a type consistent with what the draft City Plan seeks to encourage. I think that Mr Bullen in paragraph 6.30 of his report has sought to unduly compartmentalise the Palmer Street precinct and overlook its incorporation in the CBD Tourist Core Precinct by the draft City Plan. Further, DCP4 describes the precinct as "focussed on Palmer Street and the Ross Creek waterfront" not just Palmer Street west of Plume Street. I am unable, for these reasons, to accept Mr Bullen's opinion (Exhibit 13, paragraph 7) that "the proposal is well removed from areas which either are developed or are intended to be developed for uses of comparable height and scale". Mr Bullen, in his report, was proceeding on a new height limit of six rather than eight storeys under the draft plan. Further development is, in fact, planned in Palmer Street east of Plume Street and that part of Palmer Street is in fact intended to be developed in a manner such as is proposed here. It is not quite correct in my view to categorise this part of Palmer Street as "essentially a very low rise environment" and even if it is that will change under the new plan. I will deal later with the other amenity aspects which have influenced Mr Bullen in his conclusion. Generally those were based on the reports of Greg O'Brien, Exhibit 14, William Huson, Exhibit 15, and Brett McClurg, Exhibit 16.
Mr Bullen's views on urban renewal are I consider slightly limited by his emphasis on "a decaying or declining urban environment" consisting of "properties ripe for development" and for the reasons advanced by Mr Reddacliff I think that the concept in demographic and practical terms is broader than that. Mr O'Brien also emphasised "dereliction or sliding towards dereliction". To be fair to Mr Bullen though, he did say the subject site is currently under utilised and "ripe for redevelopment" and that "urban renewal done properly is a good thing for the community". He agreed with the urban renewal concept of creating a destination which is what this proposal aims initially to achieve but thinks that here the destination is "more collectively Palmer Street". I think it is a combination of both.
On the basis that a mixed use development attracts people to a destination and this one will do that, it has, he conceded, "those attributes which are all associated with good urban renewal". He thought the mixed use components of the development were appropriate and that a development of the type proposed but of a reduced size would be beneficial to the area. He said the mixed use nature was not inconsistent with the strategic plan and was consistent with the type of use expressed in DCP4 but so far as DCP4 is concerned it is, he considered, outside the desired development outcomes such as height. He agreed that "this area of South Townsville is an area in transition as far as development is concerned...where old developments are being knocked over and new modern developments are occurring" and the increase in building height from four to eight storeys "is one, but only one way, that outcome could be achieved"; pages 502 and 502. He agreed that the draft city plan is relevant to a consideration of whether there are planning grounds sufficient to warrant approval of this development, in particular because it increases building height from four to eight storeys, the proposed development would be code assessable with no opportunity for public objections and it represents a clear change in planning direction for this area of Palmer Street by reason of the increased building height, an increase in site density from 2:1 to 4:1 and its inclusion in the CBD.
Urban renewal involving modern mixed use development is also such a planning ground. These matters have influenced my view that considerable weight should be given to the draft plan.
Mr Bullen agreed that as a general planning proposition need, in terms of general community benefits, can override impacts on amenity. In other words a development that has impacts on amenity may still be approved if in the balancing exercise there are more community or public benefits associated with the development; page 501.
Mr Turnbull described urban renewal as "probably the key issue" in the appeal; page 526. He sought to criticise Mr Reddacliff because he dealt in generalities rather than strategic level or coalface issues, is an architect not a town planner, and was in effect a "facilitator" entrusted by the council and the State Government to get thing moving.
I am satisfied as to Mr Reddacliff's qualifications and experience in this field and, subject to what I have already said, prefer his evidence to that of Mr Bullen. That is not to say though that his evidence supplants the need to have regard to all of the planning aspects of the development; it does not.
Whilst the proposed building in size, bulk and height does exceed the current planning scheme in significant respects, the co-respondents have, I consider, established planning grounds sufficient to warrant approval of it.
J. VISUAL AMENITY AND RELATED ASPECTS
A building of the size, height and bulk as that proposed will clearly have visual amenity effects but in my view for the reasons already given these are not unacceptable. I agree with Mr O'Brien, Exhibit 14, that the building may to an extent appear "monolithic" (subject though to Mr Chenoweth's evidence on this aspect, at pages 169 - 171) and somewhat "out of character with the immediate surroundings to the site" but that is, I consider, an inevitable consequence of a height increase such as is proposed by the draft city plan.
In fact, Mr O'Brien agreed that where there is such an increase the first buildings following the change are likely to be somewhat intrusive. That is commonsense. Also the draft plan emphasises desired character and amenity over present character and amenity. In my view the proposed development is consistent with the character of the area as contemplated by the draft plan. Mr Chenoweth frankly agreed that the building would "pretty much" be out of character with the immediate surrounding area. He continued (at page 172):
"Well it's out of character because it's the first of a proposed revitalisation, so that’s inevitably going to be out of character and for that reason it's not unacceptably out of character, it's what the planning intention is for the area to - to be changed in its character."
At page 194 he said:
"On that point there's two things that I'd like to say in response. One is that I don’t think that there's anything about the change between DCP4 and the current planning scheme that indicates that the urban renewal is taking a cautious approach. I think that quite the opposite, it's quite a dramatic change. And secondly that the protection in DCP4 about the surrounds of existing buildings of historic character, do seem to have been the planning intention at that time and seem to me to have been quite deliberately changed in the draft city plan."
Dealing with SO2 (the specific outcome in the draft plan relating to building height) he said (at page 196):
"The specific outcome is that the height of the buildings is consistent with the desired character. So, if one is to have a desire as expressed through the planning scheme that an area be eight storeys, generally then the first cab off the rank is always going to be an abrupt change."
And at page 198 he said:
"I think it's very important that specific outcome SO2 does not refer to the need for something to be consistent with the existing character and amenity of the locality - it's quite specific. It's consistent with the desired character and amenity of the locality, not the existing character of the immediate neighbouring buildings."
This evidence is consistent with my view of the matter and the changes which the draft plan intends to bring about.
Like Mr Bullen, Mr O'Brien has in my view sought to unduly compartmentalise Palmer Street and to ignore its incorporation in the CBD under the draft City Plan. Further, I do not think that the "character difference" referred to by Mr O'Brien in Exhibit 14 paragraph 4.5 is of the magnitude he postulates. Palmer Street has a mixed - old and new - character which is progressively extending along the street east of Plume Street and that process will, in my view, continue. The draft plan also clearly contemplates some view interference, depending upon where one is standing, with dominant geographic visual features. That is already the case in the Palmer Street precinct west of Plume Street.
The proposed development will clearly tower over nearby properties with light, view and shadow effects but again that is something which is an inevitable consequence of the height increase proposed by the draft plan. The size of the development is also a consequence of the area of land available for development - six separate but contiguous allotments - and to this extent can be justified on the basis that the site is to that extent "unusual" and consists of a "major amalgamation of land parcels" within DCP4 section 10. In my view a building of a size acceptable to the appellants would also cast shadows over nearby properties and affect their light and views perhaps not though to the same extent as this development, as is apparent from Exhibit 14 paragraphs 6.4, 6.5 and 6.6.
Mr O'Brien agreed that the height of the proposed building is "generally consistent" with the draft plan and that in visual terms one should take into account that future planning links the Palmer Street precinct with the CBD. He also agreed that the combination of uses contemplated by the development are supported by both the current and draft planning schemes and that in the tourist core CBD precinct proposed by the draft plan "a zero setback is seen as acceptable". Likewise the draft plan for this are contemplates a "fairly intense level of development".
So far as the character of the area is concerned he considered the backpackers hostel between the Metropole Hotel and the subject site to be a "visually unattractive building", an unattractive feature of South Townsville. I agree. His evidence as to the incompatibility of the development with the Metropole Hotel suffers somewhat from his failure to consider the comparable position of the Shamrock Hotel and the building next to it which in my view does not in real terms detract from the heritage appearance of the Shamrock Hotel. Realistically, there is not much "character" in the immediate locality of the subject site apart from the Metropole Hotel and the old Pasini's restaurant next door but around the corner.
K. ACOUSTIC ASPECTS
The appellants' witness here was Mr Huson whose report is Exhibit 15. I found him to be reasonable, not extreme, in his opinions and to be perhaps more aware of or realistic about the likely concerns of and impacts on neighbouring properties of noise likely to emanate from various sources associated with the development (see Mr Turnbull at page 459) than was the co-respondent's witness, Mr King, whose report is Exhibit 9.
I accept Mr Huson's evidence as to the desirability of an acoustic screen or barrier, notwithstanding the criticism levelled at him by Mr Hughes SC for the co-respondents that he had not been to the site before he wrote his report. He had been there before he gave evidence. Such a screen or barrier would also minimise, to its obvious limited extent, ground level visual impacts of the building. On these aspects I also accept the evidence of Mr Bullen which was consistent with the views of Mr Huson. I am unable to accept the contrary view advanced by Mr Schomburgk.
In my view approval of the proposal should be subject to the construction of an acoustic barrier or fence such as was put to Mr Huson by Mr Turnbull at page 438, namely one of 4 metres in height commencing at a point near the Morehead Street frontage of the property extending along the rear boundary to a point 20 metres from the eastern boundary where it would reduce to 2 metres in height and at that height extend to the eastern boundary. I agree with Mr Huson, page 460, that a 2 metre high fence would not sufficiently attenuate noise from the building.
There should also be a condition limiting garbage collection to between 7 a.m. and 6 p.m. The co-respondent did not take issue with such a condition. Such a condition would reduce associated noise impacts. Garbage collection should also be limited to the point referred to in Exhibit 16 page 8 (in front of car parking spaces 1 - 12). See also Exhibit 3 page 77 (Palmer Street level) and page 84. The turnaround bay should also be clearly marked. The clearance height should be 6.5 metres. The co-respondents agreed with such a condition as did their traffic expert, Mr Holland. It is also satisfactory to the appellants.
I also accept Mr Turnbull's argument that there should also be a condition which ensures appropriate acoustic treatment of all plant.
L. TRAFFIC ISSUES
These are in a fairly narrow compass.
Mr Holland, report Exhibit 8, considers 120 car parking spaces are appropriate. Mr McClurg, report Exhibit 16, says there should be 127. I prefer Mr Holland whose approach I thought a little more practical than Mr McClurg's. The difference between the two is in relation to the shops, restaurants and hotel car parking component. Mr Holland opts for 38 spaces; Mr McClurg for 45. Mr McClurg's figures are based on standard restaurant/hotel patronage figures and do not allow for, or give sufficient credit for, the residential component of the development; that is, occupants patronising the hotel and/or restaurants without having to drive there. Both experts agreed that a relaxation from the 192 spaces required by the planning scheme was appropriate. The extent of their disagreement was limited to seven spaces.
I also prefer Mr Holland to Mr McClurg on bus parking, visitor parking, Morehead Street parking and queuing. Again, I thought his approach was more practical and represented a more realistic consideration of the issues.
So far as visitor parking is concerned I think it is appropriate to count the 10 secured visitor parking spaces. They are in fact for visitors and the fact that they will be not as easily accessible as others is not a sufficient reason, in my view, to exclude them from the count.
M. HEIGHT AND AMENITY - REMAINING ISSUES
It is desirable that I refer to the evidence of Mr Schomburgk, report Exhibit 6, and Mr Chenoweth, report Exhibit 7. I accept their evidence. They, more than the appellant's equivalent witnesses, recognised the need to approach the proposal on the basis that the transitional planning scheme is almost at an end and the draft plan is about to come into effect. They, as I do, consider that significant or considerable weight should be given to the draft plan. There will always be proposals which effectively fall between two such planning schemes and whilst primary consideration must be given to the existing scheme it is impossible not to give weight to the new (draft) scheme and evidence in relation to it when considering whether and to what extent existing scheme provisions should or should not be varied, relaxed, modified or dispensed with to the extent allowed by the existing scheme.
The very advanced nature of the draft plan can clearly amount to a sufficient planning ground to justify approval of a particular application despite conflict with the existing planning scheme.
Under the draft plan the subject area is not intended to stay as it is and to this extent the current planning scheme has been overtaken by current developments. It is not realistic to ignore this state of affairs and consider the present application on the basis that most emphasis should be placed on the existing planning scheme and non-compliance with that scheme. The present proposal is consistent with the character of Palmer Street as contemplated by the draft plan.
Mr Schomburgk's relationship with Mr Staley was tested by Mr Turnbull with emphasis on the fact that for some time Mr Staley, now employed by the respondent, was employed, like Mr Schomburgk, by the C and B Group and contracted to the respondent. I am not satisfied that this has led to any lack of objectivity on the part of Mr Schomburgk. I accept him as an objective impartial expert whose opinions are not coloured in any way by prior relationships with parties or witnesses.
I also accept the evidence of Mr Chenoweth as to the impracticability of a view corridor between the two buildings and the likely impact of the development on adjoining properties. He also referred to the obvious fact that the draft plan, in increasing building height to eight storeys, does not indicate that the development potential ought to be considered differently in different parts of Palmer Street.
Mr Staley, the town planner called by the respondent, supported the application. He recommended approval to the council even though he conceded before me that he may not then have considered all relevant issues and may have been somewhat careless in some of the expressions he used in his memorandum to the council, Exhibit 3 pages 98 - 102. the issues were however thoroughly aired before me.
N. ARE THERE PLANNING GROUNDS IN FAVOUR OF THE APPLICATION NOTWITHSTANDING CONFLICT WITH THE PLANNING SCHEME?
I consider there are.
The application is to be refused if:
(a)the application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application despite the conflict.
See section 4.4(5A) Local Government (Planning and Environment) Act 1990.
The correct approach to this issue is to:
(1)determine the nature of the conflict;
(2)determine whether there are any planning grounds relevant to that part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; and
(3)determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
See Weightman v. Gold Coast City Council and Anor (2002) 121 LGERA 161 at 166-167 and 174-175.
Some of the respects in which the application may conflict with the planning scheme are referred to in Section F of these reasons. Others are referred to elsewhere in these reasons.
The planning scheme should be construed in accordance with the principles conveniently summarised by Judge Britton SC in Westfield Management Ltd v. Pine Rivers Shire Council and Anor, unreported, 14th of November 2003, as follows:
"(a)They should be construed broadly rather than pedantically or narrowly with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd.R. 352 at 360; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 AT 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313 at 318;
(b)they should be construed as a whole (Luke v Maroochy Shire Council & Anor (2003) QPELR 447;
(c)they should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v. Maroochy Shire Council (1995) QPLR 368 at 370; Acts Interpretation Act 1954 s 14A;
(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 (Degee v Brisbane City Council (1998) QPELR 287;
(f)a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224 at 230;
(g)a Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council (supra));
(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 (Fitzgibbon's Hotels Pty ltd v Logan City Council (1997) QPELR 208 at 212); and
(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 (Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527 at 528)."
I say "may conflict" and "alleged conflict" because I am inclined to agree with Senior Judge Skoien that in general there may be no conflict with a particular provision if the requirement is relaxable or can be dispensed with, varied, or modified under the provisions of the planning scheme. See Fitzgibbons Hotel Pty Ltd and Ors v. Logan City Council and Anor [1997] QPELR 208 at 212.
Dealing firstly with the areas of alleged conflict. They are:
(1) Height
It is possible to be literally satisfied in terms of DCP4 section 6.2(b)(ii) and (iv) but I have considerable reservations about whether doubling the allowable height of four storeys can ever amount to a "variation". I doubt that it can.
Without deciding whether the circumstances listed in paragraph (b) are (like paragraph (a)) conjunctive or are disjunctive the proposed building is clearly more than one storey above the allowable limit.
Mr Hughes SC conceded that the conflict represented by the height of the proposed building was too great to justify a modification or dispensation under DCP4 section 10 and for present purposes I consider that to be a proper concession.
(2) Car Parking
The parties are agreed that a dispensation of the requirements are justified and in this respect one or some of the factors listed in DCP4 section 16.2.3 have been satisfied.
(3) Site Cover
(4) Setback
(5) Plot Ratio
(6) Adverse Amenity Affects
(7) Sunlight and Shadows
(8) Noise
To the extent to which there is a conflict these fall to be considered under DCP4 section 10. For the reasons already given I consider that the circumstances of this particular application are "exceptional" to the extent necessary to justify the necessary modification or dispensation. Those circumstances include the unusually large site characteristics, the shape and utility of the site, the special features of the development related as they are to urban renewal and the major amalgamation of land parcels involved in it.
Mr Turnbull conceded that urban renewal is capable of amounting to an exceptional circumstance for the purposes of section 10 as did Mr Bullen. Mr Staley agreed and also said that the amalgamation of land parcels involved in the present application also amounted to an exceptional circumstance. Mr Bullen agreed but said that the size, height and bulk of the proposed building detracted from the extent to which the present application could be said to be such a circumstance.
If section 10 applies to the present application as I think it does, then the application, in these respects, would not conflict with the planning scheme.
Should I be wrong in this conclusion, and in any event in the case of building height, it is necessary to determine the remaining two questions postulated in Weightman. The prime area of conflict would be height, the others being related to that.
Before I do that I should mention the following matters so far as the draft plan is concerned. Mr Bullen agreed that it could be demonstrated that a specific outcome could be achieved in ways other than those mentioned in the probable solutions for that outcome. Urban renewal could be one of those ways. He also agreed that by the use of "desired" rather than "existing" SO2 directs attention to ensuring that the height of a building is consistent with what the planning scheme as a whole envisages for a particular area. He said also that this particular outcome should be balanced against other considerations. In my view the proposed building is consistent with the desired character and amenity of the area/locality and will provide a skyline that provides variation and interest. In his report, Exhibit 7, Mr Chenoweth said at paragraph 4.1.6:
"4.1.6 The proposed development conforms to the draft codes in that its 7 and 9 storey building height represents an average of 8 storeys, but with a stepped built form and open pergolas on the roofs to provide additional interest and variety. In terms of visual impacts and urban design, the variation in roof form is preferable to a uniform building height, and from the viewpoint of observers in Palmer Street, there is little perceived difference between a building of 8 storeys and one of 9 storeys."
I agree with these comments.
As to residential density the density proposed or suggested by the draft plan is a probable solution only. The other factors that I have already referred to justify the increased density involved in the present application which in comparative terms - such as those referred to by Mr Schomburgk in Exhibit 6 paragraph 5.6.12 - are not, in my view, particularly significant.
In my view the preponderance of the evidence would support approval of the application notwithstanding a degree of conflict or difference with some of the probably solutions referred to in the draft plan should that plan be in force.
Returning now to the current planning scheme the following are in my opinion the relevant planning grounds justifying approval of the present application - some of which were mentioned by Mr Hughes SC -
1.The building both in height, bulk and scale has been designed to address Palmer Street both visually and functionally.
2.The proposal offers exceptional improvements to the streetscape.
3.The unusual site characteristics including shape and utility.
4. The special features of the development including mixed use residential, shops and restaurants fit well with the area/locality.
5. The major amalgamation of land parcels involved in the application which enables an integrated or mixed development of the type proposed.
6. The current planning scheme is almost past its use-by date and, in this particular part of the city, has been "overtaken by time and events including the detailed planning for the urban renewal of South Townsville (referred to by Mr Reddacliff) and the adoption of the integrated Planning Act 1997 and its requirement that no development be prohibited by a planning scheme and that all development be subject to a performance based (or impact) assessment."
7. The current planning scheme is a transitional planning scheme under IPA.
8.The draft planning scheme will shortly be in force. That plan provides that the proposed development will be code assessable and will not involve submitters or submitter appeals. The draft plan represents a significant change in planning direction in this area and the proposed development is entirely consistent with that new direction. Of particular relevance is that part of the draft plan which
(a)increases the height "standard" from four to eight storeys
(b)increases the density of site cover from 2:1 to 4:1
(c)includes the subject land in the Townsville CBD
(d)promotes this type of development.
9.The urban renewal benefits involved in the application. These will benefit the community as a whole and include those already referred to and in particular:
(a)the revitalisation of this part of Palmer Street and the extension of developments such as exist in the Palmer Street precinct west of Plume Street to this area
(b)the provision of accommodation for residents and tourists convenient to the CBD
(c)the convenient provision of a hotel, shops and restaurants for the benefit of residents and tourists
(d)the catalytic effect of the development in encouraging further redevelopment of the area and
(e)the positive contribution to the streetscape which the development will have.
10.The limited adverse amenity effects of the proposed development on the appellants' properties and the fact that those properties are likely to be redeveloped in a way with primary emphasis on McIlwraith Street, not Palmer Street.
11.The consistency of the proposed development with the aim and objectives of DCP4 already referred to and the current strategic plan provisions.
Specific aims and provisions of the strategic plan promoting a development such as is proposed here include:
(a)Section 2.4.3 as to facilitating the redevelopment and improvement of areas of the city to enhance the physical environment by encouraging the redevelopment of less attractive areas of the inner city and outlining provisions of the planning scheme intended to enhance the tourist potential and appearance of the city and particular areas of the city.
(b)Section 2.4.5 as to the promotion of a high standard of amenity particularly in residential and employment areas.
(c)Section 2.7.1 encouraging a diversity of accommodation types.
(d)Sections 2.9.1, 2.10.1 and 2.12.1 encouraging confidence in the direction of future growth, the promotion of the viability of functions of the city centre and encouraging Townsville as a tourist destination.
(e)Section 2.15.6 which identifies the area as one with major tourist and entertainment potential needed to provide for residents and visitors.
(f)Section 2.16.5, Objectives 1, 3, 4 and 5, which encourage the growth of tourism and the provision of tourist facilities, seek to ensure a high standard of site development for recreation and tourist facilities, protecting the character of an area "where appropriate", seeking to improve the visual impressions of the city by a high standard of development and seeking to promote the city as a tourist destination.
The strategic plan recognises Palmer Street as an important area for redevelopment for residential and entertainment facilities including restaurants, shops and hotels for tourists and for the benefit of the local community.
12.The significant community need (in a planning sense) for this type of development. The associated community benefits render any impacts on amenity acceptable or justifiable. See Arksmead Pty Ltd v. Gold Coast City Council [2001] 1 Qd R 347 at 357 and Kelly's Beach Resort v. Burnett Shire Council and Ors [2003] QPELR 614 at 623, paragraphs [69] and [70].
13.Palmer Street itself is in transition from old to new, from smaller to larger developments.
To the extent to which they are additional these grounds are also, in my view, capable of amounting to exceptional circumstances for the purposes of DCP 4 section 10.
O. CONCLUSION
The planning grounds I have mentioned are in my view in favour of the application as a whole and are, on balance, sufficient to justify the application notwithstanding the conflicts with the planning scheme to which I have referred.
For these reasons the co-respondent has discharged the onus resting upon it. The application should be approved subject to the conditions imposed by the respondent together with the additional conditions I have mentioned. The parties are to submit a draft order which reflects these reasons. Subject to that being done the appeal will be dismissed.
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