Gauci Developments (Qld) Pty Ltd v. Bundaberg City Council

[2008] QPEC 8

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Gauci Developments (Qld) Pty Ltd v Bundaberg City Council [2008] QPEC 8
PARTIES:	GAUCI DEVELOPMENTS (QLD) PTY LTD Applicant and BUNDABERG CITY COUNCIL Respondent And JAS HASTER CATE BALMER AND JACK PAPPAS Co-respondents
FILE NO:	Application No 3504 of 2007 Application No 3505 of 2007
DIVISION:	Application for declarations
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	7 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2008
JUDGE:	Skoien SJDC
ORDER:	Application allowed; Declarations made.
CATCHWORDS:	Meaning of “Medium Density Residential Accommodation”; no definition of “medium density in Planning Scheme”.
COUNSEL:	M Hinson SC for applicant S Ure for respondent J Griffin QC, with him P Mylne for co-respondents
SOLICITORS:	McCullough Robertson for applicant Baker O’Brien and Toll for respondent Plastiras, Lawyers for co-respondents

1. The issue in these proceedings is whether the proposed use of land which is the subject of three applications by Gauci to the Council for a development permit for making a material change of use of land is “Residential Multi Unit” or “Other” as defined by the Council’s 2004 planning scheme.  The point is that the former use is code assessable while the latter is impact assessable.  Gauci seeks declarations that it is the former.

Background

1. Gauci made three development applications to the Council, two in April 2007 and one in July 2007.  In each IDAS form the proposed use was described as “One residential multi-unit development” and the change of the use of the land was described as “Vacant land to residential multi-unit development”.

1. The Council issued an acknowledgment notice for each application which stated:

(a)      That the approval being sought was a development permit for the following three proposed developments:

(i)     “Material Change of Use Multi-unit Development (Twenty-Two (22) Multiple dwelling units)”;

(ii)     “Material Change of Use Twenty-Seven (27) Multiple Dwelling Units”;

(iii)    “Material Change of Use Twenty-Seven (27) Multiple Dwelling Units”;

(b)     That code assessment was required;

(c)     That the applicable code was the Medium Density Residential Code.

1. Each application progressed through the relevant stages of IDAS.  The decision stage for each has now expired.

1. After the issue of the acknowledgement notices referred to in para [3], on 15 November 2007 (for the April applications) the Council issued documents entitled “Amended Acknowledgment Notice to Applicant” and a similar document for the July application was issued on 27 November.  Each document stated:-

(a)        that the approval being sought was a development permit for a “Material Change of Use, Other (22 or 27) Dwelling Units”;

(b)        that impact assessment was required.

Relevant Planning Scheme Provisions

1. The council’s 2004 planning scheme contains definitions in s.1.2.  Section 1.2.2 and Table 1 contain land use category definitions which include the following:-

“Residential Multi Unit

Means any premises catering for medium density or short term residential accommodation on a single lot, including:

·Accommodation units – multiple dwelling units in an integrated development for residential use by several separate domestic groups or individual(s).

·Backpackers hostel – premises containing rooming units for overnight or short stay accommodation for tourists and travellers.

·Bed & Breakfast establishment – a detached house providing overnight accommodation for tourists and travellers.

·Duplex – a development comprising two dwelling units on one site.

·Group housing – two or more dwelling units where each unit is located on a lot shown on a Group Titles Plan.

·Motel – premises providing overnight or short-stay accommodation and meals for travellers and the vehicles used by them.

·Retirement village – any development used as permanent residential accommodation for retired or aged persons consisting of self-contained dwelling units, serviced hostel units and/or nursing home accommodation together with ancillary facilities provided for use by residents or staff of the facility.

·The term does not include a caravan park or relocatable home park.

Other

Any other use not elsewhere defined in this Planning Scheme.”

1. The planning scheme does not define the expression “medium density” or related expressions such as “low density” or “high density”.  The other defined residential land use categories are “Caretaker’s Residence”, “Residential Single Unit” and “Residential Special”.  The “Residential Single Unit” definition is as follows:-

“Residential Single Unit

Means any premises used as a single dwelling unit on a single lot for exclusive and self-contained accommodation by a domestic group or individual(s), including:

·Detached house – a single dwelling unit on one site.

·Home occupation – an occupation or profession conducted in or under a house by a permanent resident of the house.

·Relatives unit – a dwelling unit ancillary to a house used for occupation by a relative of the occupiers of the house.

·The term includes such outbuildings as are incidental to and necessarily associated with the use.  The term does not include a caravan, relocatable home or caretaker’s residence.”

1. Section 2.2 of the planning scheme contains the City Planning Strategy including a Residential Strategy.  A key strategy is to provide “a diverse range of high quality housing forms and densities”.  A preferred settlement pattern and development characteristic is expressed as follows in section 2.2.2

“2.  Most residential development should be at standard suburban densities of about 8 to 10 dwellings per hectare.  Medium density residential development (about 15–25 dwellings per hectare) is preferred on serviced lots in the vicinity of the City centre, major suburban centres, the university site and points of major transport interchange.”

1. The Vision Statement for the City of Bundaberg, which is not part of the statutory planning scheme and is said to be explanatory only, contains

“Vision for the City of Bundaberg
The following Vision Statement expresses the preferred future for the city of Bundaberg and provides the guiding principles from which the Desired Environmental Outcomes are derived.  The community’s and council’s vision is that:

‘The City of Bundaberg will be a key centre in the Wide Bay-Burnett Region in which the cultural, economic, physical and social wellbeing of people and communities is maintained and areas of ecological value are protected.’”

and under the heading “Social Wellbeing” is this:-

“Social wellbeing in Bundaberg is promoted through:

·Providing opportunities for community involvement in development proposals which may have a detrimental impact on the environment.

1. The definition of “residential multi unit”, by the use of the introductory word “means” (deleting the irrelevant references to short term accommodation) makes it clear that the words:

“any premises catering for medium density residential accommodation on a single lot”

comprise the general, “catch-all” definition of the term.  If the use does not fall within that meaning, it cannot be residential multi unit.  Then it goes further and, by the use of the word “including” gives a description of certain specific uses which must be taken to form part of the general definition.  One such is “accommodation units”, as defined.  So it is beyond dispute that accommodation units, as defined, are within the definition of residential multi unit.   There is no question (it was not disputed) that the proposed uses comprise accommodation units.

1. The planning scheme does not anywhere descend to a more detailed definition of what accommodation units fall within the general definition.  It could easily have done so.  In particular it could have easily, but did not, define what the term “medium density” (the point of hot dispute before me) means.  It could have done that by the simple expedient of defining the density by reference to the number of dwellings per hectare or by the number of “equivalent population” per hectare or similar mathematical guidelines.

1. Table 3.1 of the planning scheme is the Development Assessment Table for Western Bundaberg, in which one of the parcels of land under review is situated.  It provides that the land is code assessable for Residential Multi Unit and specifies as applicable the Medium Density Residential Code.  Similarly, Table 3.6 is the Development Assessment Table for Eastern Bundaberg where the other two parcels are situated and it again provides that the land is code assessable for Residential Multi Unit and specifies the Medium Density Residential Code.

1. The Medium Density Residential Code (which pointedly does not set guidelines of the type referred to in para [11] above) does however lay down performance criteria which have a direct effect on density (building envelopes; setbacks; building heights; ground level open space etc).  The drafter of the planning scheme appears to have been content to leave it at that.  It was not suggested that any of the proposed Gauci developments fail to comply with the code.

1. A substantial part of the argument for the Council and the co-respondents hinged on the strategy which I have cited in para [8] above which refers to a preference for medium density residential development of “about 15-25 dwellings per hectare”.  It was submitted that the provision thus supplies a definition of medium density residential development for Bundaberg city.  For a number of reasons I reject that.

1. First, s.2.2.2 suggests that medium density residential development is to be restricted to certain areas (in which none of the subject lands are), yet the Development Assessment Tables to which I have referred in para [12] specifically contemplate medium density development in areas which are not those specified in s.2.2.2.  Whether s.2.2.2 is intended to put a special gloss on medium density residential development in the areas to which reference is made in s.2.2.2 is possible but is not a matter I need decide.  In my opinion the specific wording of the Development Assessment Tables and, of course, the geographical situation of the subject parcels exclude s.2.2.2 from consideration here.

1. Furthermore, as Mr Hinson SC for Gauci demonstrated, calculations using Table 4.1 which sets out minimum lot sizes for medium density accommodation units on Residential A and Residential B land show that density far greater than that suggested by s.2.2.2 can be achieved under the Medium Density Residential Code.

1. Finally, s.2.2.2 is not a definition but is a statement of strategies.  Such a broad statement of policy, expressed rather vaguely and tentatively it must be said, cannot be given the weight of a statutory provision defining an important concept.

1. A further argument advanced by counsel for the co-respondents was based on the provisions of s.5.6 of the planning scheme, which is the Policy for Contribution Towards Water Supply Headworks and Water Supply Works External.  It has the following aim:

“To specify methods adopted by the Bundaberg City Council for determining the amount of monetary contribution towards the cost of provision of water supply headworks and water supply works external to be made by an applicant.”

1. Under this policy an “equivalent population” is specified and, by comparing the specified “as of right” equivalent population with the increased equivalent population because of the development, a calculation can be done to arrive at a proper monetary contribution by the developer.  It is not relevant to the consideration of what constitutes medium density residential accommodation.

1. Nor do I gain any real assistance from the excerpts from the Vision Statement quoted in para [9] above.  They, as well as other provisions which I have not cited, could actually be said to support the Gauci developments.

Conclusion

1. Different people obviously have different ideas about what might constitute proper medium density residential accommodation.  But ultimately in the context of a planning scheme one must look at what the planning scheme provides, not what it might preferably provide.  In my opinion under the provisions of this planning scheme which applied to the development applications, the original decision of the Council was the proper one.

1. I therefore declare in terms of paras [11] and [12] of the originating application.