GS Unit Trust v. Maroochy Shire Council & Ors
[2008] QPEC 18
•8 February 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
GS Unit Trust v Maroochy Shire Council & Ors [2008] QPEC 18
PARTIES:
GS UNIT TRUST (GW Smith & & GI Searle as trustee)
(Appellant)
and
MAROOCHY SHIRE COUNCIL (Respondent)
and
KEVIN JOSEPH McCOURT (1st Co-Respondent)
and
JOAN ALISON BROWN and
LAURENCE JOSEPH BROWN (2nd Co-Respondent)
and
GRAHAM HAROLD ASHTON and
JUNE AMANDA ASHTON (3rd Co-Respondent)
and
BETTY MARGARET McEWAN (4th Co-Respondent)
and
MARTHA COX (5th Co-Respondent)FILE NO/S:
277 of 2005
DIVISION:
Planning & Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court of Queensland, Maroochydore
DELIVERED ON:
8 February 2006
DELIVERED AT:
Maroochydore
HEARING DATE:
23-24 January 2006
JUDGE:
Judge J M Robertson
ORDER:
Appeal dismissed
CATCHWORDS
Appeal against Council’s refusal to grant development permit retrospectively; impact assessable development, extent of impact on amenity of adjoining resident of house constructed contrary to approved plans in exceedance of maximum building height in precinct specific part of Planning Scheme, s 3.5.14(2) of the Integrated Planning Act 1997; whether development conflicts with Planning Scheme, whether sufficient planning grounds exist to justify approval.
Cases:
Koerner & Ors v MSC & J.T. Baines & L.J. Baines [2004] QDELR 211 at 215
Spondor Pty Ltd as trustee v Maroochy Shire Council [2005] QPEC 023
Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317
Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 8
Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [1999] QPELR 322
Weightman v Gold Coast City Council [2003] 2 Qd. R. 441
Grosser v Council of the City of Gold Coast [2002] QPELR 207
Legislation:
s. 3.5.14(2) of the Integrated Planning Act 1997
COUNSEL:
Mr S. Ure (for the appellant)
Mr A. Skoien (for the respondent Council)
Mr S. Keliher (for the co-respondents)SOLICITORS:
P&E Law (for the appellant)
Maroochy Shire Council Solicitor (for the respondent)
Self-acting (for the co-respondents)
In December 2004, Council approved a reconfiguration into two allotments of a 911m² block of land situated at 10 Kate Street, Alexandra Headland. The appellant then commenced building a detached dwelling on the rear allotment which is described now as Lot 210 on SP 176775. The plans for the proposed dwelling were approved by a private certifier. In May 2005, at a time when the external structure of the dwelling was substantially complete, the Council issued an enforcement notice, substantially on the basis that parts of the building as constructed exceeded the maximum building height for the precinct in which the property is located as provided for in the Maroochy Plan. It is common ground that the building as constructed does exceed the maximum building height of 8.5 metres by .88 metres. The divergence from the approved plans is described by Mr Ryter as being due to inadvertence. The appellant then lodged an application for a development permit to erect a detached house exceeding 8.5 metres which was therefore impact assessable. In the assessment stage, Council received a number of adverse submissions from surrounding residents. By Decision Notice of 11 August 2005, Council refused to the development for the following reasons:
“1] The proposal does not comply with the requirements of Performance Criterion P1 of Element 1 (Height and Sitting of Buildings and Structures) of the Code for the Development of Detached Houses and Display Homes and cannot be conditioned to apply.
2] The proposal is not consistent with the intent for the precinct, which requires that “new premises should be of low rise and contribute to a high standard of residential amenity.”
Council expanded on the reasons for refusal in a letter to the appellant’s solicitors dated 14 October 2005:
“1] amenity of adjacent residents
2] Desired Environmental Outcome No 6
3] the proposal is contrary to the purpose of Code 4.1 – Code for the Development of Detached Houses and Display Homes.”
The site is within Planning Area No 7 – Alexandra Headland / Cotton Tree, and is included in Precinct 10 – Mooloolaba Road East (Mixed Housing). The site is contained in a block bounded by Alice Street to the north, Mary Street to the east, Kate Street to the south and Lindsay Street to the west. The block slopes down to Alice Street, and contains a number of other allotments including eight multiple dwelling developments, a number of which are “stepped” down the slopes of the land towards Alice Street to the north.
The intent for Precinct 10 in the Planning Scheme sets out a description of the diverse range of residential accommodation in the precinct, which accords with my own observations on inspection of the range of dwellings, including multiple dwellings which can be seen in the immediate vicinity of the site. The intent provision includes this observation:
“Redevelopment of … vacant sites should be undertaken with respect for … the amenity of adjacent residents…”
Amenity, particularly of the resident of 8 Kate Street, the first co-respondent Mr McCourt, is the central issue in the appeal.
In the Planning Scheme Precinct 10 Intent provisions there is an important statement which is central to the issues in the appeal. Under the heading “Landscape and Built Form” is stated:
“New premises should be low rise and contribute to a high standard of residential amenity.”
(“Low rise” is, perhaps understandably, not defined in the Planning Scheme.)
The maximum building height for the precinct is stated to be:
“.2 storeys (but not more than 8.5 metres …)”
It is common ground, on the evidence, that the partially constructed house on the site is 3 storeys (this is because the basement as constructed includes a foyer (beyond the size required to accommodate the stairway) a cellar, and a store). As these features are not excluded from the definition of “storey” in the definitions in Volume 1 Section 3 of the Planning Scheme, both expert town planners now agree that the proposed building is therefore a 3 storey building. I accept this evidence. It is common ground that the building plans for the dwelling approved by the private certifier were for a house which did not exceed 8.5 metres.
As I have noted, the house as constructed exceeds 8.5 metres and as such it was necessary for the appellant to, as it were, retrospectively seek approval for what is in fact impact assessable development.
The relevant code is the Code for the Development of Detached Houses and Display Homes.
A purpose of the Code is stated to:
“facilitate and encourage the development of a range of detached housing types … in ways that integrate new premises with: …
· the amenity of surrounding premises…”
The key element in the Code is Element 1 “Height … of Buildings …”. Objective 1 for this element is (relevantly) that “… the height, siting … of detached houses …(achieve) an acceptable level of privacy … and amenity for residents … of adjoining premises.” Relevantly, the Performance Criteria and Acceptable Measures are:
Performance Criteria
Acceptable Measures P1Buildings and structures must not cause significant loss of amenity to adjacent land and dwellings having regard to:
· overshadowing;
· privacy and overlooking;
· views and vistas;
· building character and appearance; and
· building massing and scale as seen from neighbouring premises.
A1.1 Buildings and structures are not higher than 2 storeys; AND
A1.2 Buildings and structures are not higher than:
(a) 8.5 metres on sites which slope
between 0 and 15% …
As I have noted, it is conceded by the appellant that the building as constructed is 3 storeys, and all parties accept the evidence of height exceedance from the Council’s expert surveyor Mr Troyahn from Jones Flint & Pike, and that is that the highest roof level at the southern end of the house was under 8.5 metres, whereas the highest roof level at the northern end of the house ranged from .51 metres to .88 metres over the maximum building height of 8.5 metres.
Section 3.5.14(2) of the Integrated Planning Act provides that an assessment manager’s decision must not:
(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b) conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision.”
It is the joint submission of the Council and the co-respondents that the development offends s. 3.5.14(2)(a), in that it compromises the achievement of DEO 6, which is concerned with Shire wide urban design, heritage and character; and the submission focuses on a number of the stated strategic implementation measures in particular:
“(b) design and locate structures … to:
· protect and enhance major vistas, view corridors …
(c) maintain a generally low rise built form whilst allowing for a range of housing types and densities in appropriate areas …”
As I have noted, amenity particularly to Mr McCourt’s residence, was the major issue in the case, and neither the Council nor the co-respondents have forcefully submitted that the proposal compromises these Shire wide measures. If the proposal does compromise DEO6 then the appeal must fail.
As his Honour Judge Wilson SC noted in Koerner & Ors v MSC & J.T. Baines & L.J. Baines [2004] QDELR 211 at 215:
“The DEO’s simply form part of all the relevant elements of the Plan which the Court must consider, including those matters to which the scheme itself pays significant obeisance: community need, and demand; the desirability of, and possible benefits from, the proposal; the impact it would have; and, of course, the prevailing realities – whether development in the area has advance, or will advance, in accordance with the Plan.”
As he pointed out at paragraph 25 of Koerner:
“There is … a distinction between compromising the achievement of DEOs, and conflicts with the Planning Scheme. For a development to compromise the achievement of a DEO there would, it is clear, have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised.”
I adopt his Honour’s reasoning and apply it here, and I am satisfied that the development does not compromise the achievement of DEO6.
Amenity
In Broad v Brisbane City Council & The Baptist Union of Queensland [1986] 2 Qd R 317, de Jersey J (as the Chief Justice then was) said (at 326):
“There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is on may be put, may affect one’s perception of amenity.”
In that same case, his Honour quoted with approval (at 326) some observations of Sugerman J in Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1956) 2 LGRA 8 at 11 which I respectfully adopt in relation to the relevant evidence in this case:
“(Amenity) relates also to the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by as to the resident, and as will to those across the road, who may be unaffected by (impacts), as to the adjoining and other occupiers on the same side. ‘Amenity’ may be taken to express that element in the appearance or layout of town and country which makes for a comfortable and pleasant life rather than a mere existence.”
At 319 of the same decision Thomas J (as his Honour then was) said (after referring to part of the above quoted observations of Sugerman J):
“… the ultimate enquiry is an objective one at the same time recognising that it involves wide-ranging and subtle criteria that may affect different individuals in different ways. It is inevitable that individual perceptions be received and evaluated in the course of ascertaining what the amenity is in a particular neighbourhood and what effect the relevant proposal will have upon it.”
In Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [1999] QPELR 322 (a case in which the proposal under consideration was for a mixed development and tavern in Mudgeeraba in the Gold Coast Hinterland) Brabazon DCJ said (at 333):
“Amenity does not include just the physical appearance of the surrounding. It also includes the emotional or sentimental feelings that people may have about a place.”
On appeal, his Honour’s statement was approved by the Court of Appeal in Arksmead Pty Ltd v Council of the City of Gold Coast and Ors [2000] QPELR 285 at 286.
The overriding issue of amenity relates to the impact (if any) on the views to the west and northwest from the residence of Mr McCourt at 8 Kate Street. Mr McCourt gave evidence both orally and in a statement (Exhibit 13) and his evidence was not challenged, and there is no doubt that he has a genuine and understandable feeling that the building created on the site has adversely affected his amenity.
Once the reconfiguration was approved it was then inevitable that even a compliant building, built to the maximum height of 8.5 metres and 2 storeys would to some extent adversely affect Mr McCourt’s view to the northwest towards the Alexander forest.
The appellant’s submit that on the evidence, although there is some interference with the view as a result of the height exceedance, it could not be said to be “significant” in the sense in which that word is used in Performance Criteria P1 in the Code for Development of Detached Houses. The appellant submits that this is an important point because the performance criteria are for the purposes of the Codes “the outcomes which best meet the purpose of each Code.” The appellants and the co-respondents argue however that to concentrate overly on P1, is to ignore the need to look at all the relevant Planning Scheme parts that apply in this particular case. In summary, they say that the many references to “residential amenity” are important, and the reference to maximum building height both in the precinct specific provisions in Volume 3 and in the acceptable measures to P1 in the relevant Code is significant, particularly when coupled with the statement in the introduction to Volume 4 in relation to acceptable measures, and that is:
“They do however offer a degree of certainty to applicants, Council and the community.”
The real issues in the case are:
(a) does the proposal conflict with the Planning Scheme. If it does not, the appeal succeeds subject to the imposition of conditions.
(b) If I find it does conflict, has the appellant satisfied me that there are nevertheless sufficient planning grounds to justify approval.
The principles applicable to the interpretation of planning schemes are well known. In Spondor Pty Ltd as trustee v Maroochy Shire Council [2005] QPEC 023 I observed (at paragraphs 9-11):
“The relevant principles for construing planning schemes generally, and this scheme in particular, are well known and, in this case, uncontroversial. They include:
1. planning schemes are to be construed broadly, rather that pedantically or narrowly, and with a sensible, practical approach;
2. as a whole;
3. in a way which best achieves the apparent purpose and objectives;
4. in light of the IPA’s clear proscription in s2.1.33 against prohibiting development or the use of premises;
5. although planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament;
6. ambiguities or inconsistencies are to be determined in context, according to the intent of the Planning Scheme; and
7. a ‘purposive’ approach is to be taken to the construction of the Maroochy Plan 2000.
In Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] QPELR 447, his Honour Judge Wilson S.C. set out these various principles at paragraphs 38-60 in a detailed, and helpful analysis of the Maroochy Plan 2000.
At paragraph 60 his Honour concluded his analysis thus:
“The proper method of construction is that adopted in the authorities set out above, involving identification of those parts of the planning scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole, and, by that process, to discover whether or not the proposed development accords with the scheme.”
The central factual dispute concerns the degree of interference with Mr McCourt’s views to the west and north-west as a consequence of the unauthorised height exceedance. The appellant relied on Mr Alan Chenoweth (Exhibit 3) and Council (and the Co-respondents) relied on Mr Greg O’Brien (Exhibit 7). Mr Chenoweth’s conclusions, based on observations, measures, and photographs taken as set out in his report are succinctly summarised at 5.2 of this report:
“The only discernible impact is a slight loss of views of a distant forested ridge, as viewed from the deck of No 8 Kate Street. From this viewing position, the distant wooded ridge of Alex Forest has been until recently an attractive but secondary part of the view, which is mainly north towards the ocean. Any house on the subject land that complies with the acceptable solution, including the approved building, would have obscured most of the views towards “Alex Forest”, leaving only a sliver of ridgetop tree canopies visible above the roof as seen from some parts of the deck. While this opportunity is now lost, I regard the impact as minor and acceptable.”
Mr O’Brien’s conclusions based on his observations and photographs set out in his report are summarised at paragraph 5 on page 25:
“This report has shown that because of the exceedance in height above 8.5 metres there has been significant loss of amenity due to loss of both views and privacy to the land and dwelling at No 8 Kate Street.”
At conclave, Mr Chenoweth and Mr O’Brien reached agreement as follows:
“9. From No 8 Kate Street the extent of height exceedance is quite noticeable.
10. The existing view from No 8 is from the second storey living areas but more importantly from the roofed and partly enclosed main balcony. Any views from the narrow side balcony are secondary, as this viewpoint is rarely used.
11. Immediately prior to construction of the house at 10 Kate Street, the views from the main balcony of No 8 Kate St would have comprised:
(a) northerly & north easterly views to the ocean, the beach, and Mudjimba Island;
(b) foreground buildings and some vegetation;
(c) more distant built up area of Maroochydore to the west of north including high rise buildings;
(d) depending on the height of trees on the subject land, a view of Alex Forest as a band of trees on the ridge.
12. The views of 11(a) and 11(b) above will be unaffected by the subject building including its height exceedance.
13. There would probably be some loss of view of (c) and (d) if the subject building had been limited in height to 8.5 metres.
14. From all parts of the main balcony of No 8 there is a complete loss of view of Alex Forest from both standing and sitting height, caused by the subject house as it exists.
15. A height compliant building on the subject land would have allowed some retention of views of Alex Forest from the main balcony of No 8 Kate St.”
Mr Chenoweth was unshaken in cross-examination. Mr O’Brien’s opinion however was seriously shaken in cross-examination by Mr Ure and when faced with the “calculations” now represented in Exhibit 11, he conceded fairly that his original calculations were flawed, such that the extent of the view of the Alex Forest lost as a result of the height exceedance was less than he had otherwise calculated.
It is true, as Mr Skoien observes, that Mr O’Brien was not given notice of the calculations now set down in Exhibit 11, nor was Mr Chenoweth asked to comment on this. I infer that it was Mr Ure who realised that there were problems in the methodology used by Mr O’Brien, and he realised this overnight of the first day of the hearing and after Mr Chenoweth had given evidence. In a sense, Exhibit 11 does also cast at least some doubt over Mr Chenoweth’s calculations and opinions based on them, because at the conclave he agreed with the methodology used by Mr O’Brien:
“… of standing on a ladder with a fixed horizontal sight line at appropriate height and observing the remaining view above the subject house as it exists is considered to be a reasonably accurate method with respect to the northern non compliant part of the house because the sight line is almost horizontal but not accurate with respect to the extent of views above the compliant (southern) part of the house.”
I think Mr Ure’s effective cross-examination demonstrates why it is important for this court to reach its own conclusions as to the extent of the loss of views as a result of the exceedance, and the importance of that loss as a loss of amenity to Mr McCourt’s residence without relying too slavishly on the expert evidence. Doing the best I can, I find that as a direct consequence of the exceedence, Mr McCourt’s view to the north-west and west will be lost to an extent a little more than what Mr Chenoweth describes as a “sliver of ridgetop tree canopies visible above the roof” and less than that originally opined in Mr O’Brien’s report and evidence in chief. I am not prepared to accept Exhibit 11 now as completely accurate in the sense that it demonstrates the actual loss as a result of the exceedance. I don’t know what Mr Chenoweth would have said about it or the surveyor because they were not asked. I think that Mr Chenoweth has underestimated the importance of the loss of that view (which as a result of the exceedance is complete) because it is a horizon view, which otherwise would provide Mr McCourt with a panoramic view starting with the top of the green forested ridgeline of Alex Forest where the skillion roofline of the house ends, proceeding around to the northern mountains, the lights of the Maroochydore highrises and the beach views. I am satisfied that as a result of the exceedance, Mr McCourt’s view to the north-west of the distant Mt Ninderry is lost, although that view would probably have been affected in any event by a compliant building, built in the same place on the site. I agree with Mr O’Brien that the variety of views that were available to Mr McCourt (prior to the height exceedance), although restricted by a compliant building on site to the west and north-west over the green ridgeline of Alex Forest, is also an important element in assessing Mr McCourt’s loss of amenity.
It follows that I am satisfied that the loss of amenity to Mr McCourt’s residence is significant, in the sense in which that term is defined in the Macquarie Dictionary “important, of consequence”, and therefore the proposal conflicts with P1 in the relevant Code. I think that the appellant has concentrated too much on P1 to the extent that it has really urged me to read this part of the planning scheme without due regard to other relevant provisions e.g. the maximum building height set out in the intent to the precinct specific provisions.
Mr Ure advanced this submission concerning the reference to 8.5 metres:
“The planning scheme refers to the reference to 8.5m in the Precinct 10, Mooloolaba Road East provisions as being “the maximum preferred for the particular precinct”. [My emphasis.] For example, in the Mixed Housing Precinct Provisions (which are relevant to the subject land), in Volume 1, pages 53, 54, 55, the provisions with respect to “accommodation buildings” and “multiple dwelling units” being code assessable refer to:
“•In premises having a height and dwelling unit factor of not more than the maximum preferred for the particular precinct.””
In my view, this submission cannot be accepted in the context of a development of a detached house in this precinct. There are a number of reasons for my conclusion. Firstly he has relied on Column 3 references in Table 5.2 in Volume 1 of the Scheme for the purpose of mixed housing development to “accommodation buildings” and “multiple dwelling units.” Although these types of development are contemplated by the Scheme in this Precinct, the subject development is for a detached house, and there are no Column 3 references to such development. Secondly, as I have noted, the acceptable measures for the Performance Criteria specifically dealing with the important issue of amenity does not qualify the stated height with the word “preferred”. This can be contrasted with the approach taken to mutli-storey residential premises in the relevant Code 4.4 where the Performance Criteria dealing with the issue of amenity to residents of adjoining sites (P1(b) at page 203 of Volume 4), is referable to Acceptable Measure A1.1. where the qualifying word “preferred” is used. This makes sense to me when one reads the scheme as a whole, and that is that height, insofar as it affects amenity, is an important issue in areas such as this Precinct. I think that this is another example of the appellant’s underestimation of the importance of height in the relevant passages in the Scheme as regards the issue of amenity to adjoining residents.
I think Mr Skoien is also correct, when he draws attention to the different height provisions in Precinct 11 in the Scheme which is also described as Mixed Housing-Precinct class, as demonstrating that the reference to maximum building height must be given some significance. He did not suggest that these provisions had some sort of prescriptive effect which would be contrary to law, rather he submitted, and I accept, that the appellant’s argument does not give sufficient weight to these provisions when the Planning Scheme is read as a whole. As regards the evidence about loss of privacy and scale, I am satisfied that the exceedance (which makes the proposal impact assessable) does not itself cause any loss of privacy; and the scale of the proposal is not out of keeping with the scale of other buildings in the block. Indeed, it is of a lesser bulk and scale than Mr McCourt’s residence which was built under provisions of an earlier scheme, and which, in any even is built on the southern end of its allotment.
Having concluded on the evidence that the proposal is in conflict with the Scheme, in accordance with Weightman v Gold Coast City Council [2003] 2 Qd. R. 441 (dealing with a similar position in the repealed Local Government (Planning and Environment) Act 1990), the Court must then:
· determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those grounds; and
· 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.
Mr Ryter, in his evidence, sets out what are said to be the planning grounds that arise on this proposal which the appellant submits are sufficient to justify approving the application notwithstanding the identified conflict:
“a) The development integrates with the natural landscape with a consistent urban form allowing for greater landscaping than a code assessment alternative;
b) Providing a good quality design in its built form;
c) The development integrates with the character and amenity of surrounding premises that provide for a mix of residential development in accordance with the Intent for Precinct 10;
d) The development integrates with the movement networks by utilising the existing transport network;
e) The development integrates with utility and community infrastructure in an appropriate manner for residential development;
f) The development is not located in an environmentally sensitive area;”
Mr Ryter’s opinion on the integration of the proposal with amenity of surrounding premises must now be read in the light of the findings I have made about the extent of the loss of Mr McCourt’s views as a result of the exceedence. I accept Mr O’Brien’s evidence that there is nothing special in the architectural design features of the house that would lead me to conclude that this was a relevantly sufficient planning ground. As the Court observed in Grosser v Council of the City of Gold Coast [2002] QPELR 207 at 209, by reference to the similar provision in the repealed Act, the discretion afforded the decision maker is couched in negative terms, that was, that the application must be refused if there were not sufficient planning grounds. None of the grounds identified by Mr Ryter are sufficient to justify approval notwithstanding the conflict with the scheme brought about as a result of the height exceedance of the development.
In those circumstances the appeal must fail and it is dismissed.
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