Halfback Pty Ltd v Logan City Council & Anor

[2003] QPEC 9

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Halfback Pty Ltd v Logan City Council & Anor [2003] QPEC 009
PARTIES:	HALFBACK PTY LTD (ACN 051 549 083) (appellant) v LOGAN CITY COUNCIL                  (respondent) and GOLDFAIR PTY LTD (ACN 095 940 766) (Co-Respondent)
FILE NO:	4375 of 2002
HEARING DATE:	27, 28 March 2003 & 8 May
PROCEEDING:	Appeal
DELIVERED ON:	16 May 2003
DELIVERED AT:	Brisbane
JUDGE:	Judge Brabazon Q.C.
ORDER:	Appeal dismissed
CATCHWORDS:	LOCAL GOVERNMENT – TOWN PLANNING – submitter’s appeal rights Strategic plan interface controls – appropriate width of buffer zone Integrated Planning Act 1997 (Qld) s.4.1.28; Local Government (Planning & Environment) Act 1990 (Qld) s4.3(4)
COUNSEL:	Mr Anderson for the appellant Mr T Trotter for the first respondent Mr R Litster for the co-respondent
SOLICITORS:	Kinneally Miley for the appellant Corrs Chambers Westgarth for the first respondent McCullough Robertson for the co-respondent

Introduction

1. There is only one issue in this appeal.  How wide should the landscaped buffer be, at the rear of the commercial premises at 3440 Pacific Highway, Springwood?  Goldfair, the owner of the property, and the Logan City Council say that the buffer should be 12m deep.  Halfback, which is the owner of the adjoining property at 3442 Pacific Highway, says that it should be 15m deep.

The Land

1. The land at 3440 Pacific Highway has an area of 2424m^2.  It is long and narrow.  The front of the land at the street frontage is wider than the quite narrow bottom end of the land.

1. Much of the land is taken up with a warehouse-style building, which is positioned  close to the front boundary. One side of the building is built right up to the side boundary.  There is some landscaping between the street and the front, while most of the land to the other side, and at the rear, is used for car parking.

1. This land is part of a strip of land which lies between the Pacific Highway and residential land further to the east.  Most of the strip is zoned commercial.  However, at the interface between the commercial land and the residential land, there is a strip of land which is zoned Particular Purpose 161 (Landscape Buffer). 

1. This site is designated within a Business Activity node, and is within Precinct 5 of the Underwood/Springwood/Slacks Creek District Strategy – they are all provisions of the City of Logan Planning Scheme.

The Application

1. Until recently, the building was used as a warehouse, and there was a relatively small demand for parking spaces.  It now has a new tenant, Clarendon Homes, a project house builder.  On 24 June 2002 a development application was lodged with the Logan City Council.  It asked for a development permit for a material change of use.  The application sought approval for a “retail showroom” and “commercial premises” as defined in the plan.  They are “as of right” uses within the commercial zone of the transitional planning scheme.  This application, within the commercial zone, is code assessable.  However, the application also extends over the Particular Purpose zone at the rear of the land.  Development (in particular, car parking) is prohibited in that zone, according to the transitional plan.  The application with respect to that zone is impact assessable, and may be the subject of an appeal.

This Appeal

1. The appeal is a fresh hearing, in which the court is obliged to reach a conclusion on the evidence before it.  It is not limited to the materials before Council.  The court acts on the evidence.  It must apply the town planning controls over the land.   The court is not a planning authority.  Its duty is to give an impartial decision on the materials before it.  It is for Goldfair to establish that the appeal should be dismissed – see Integrated Planning Act s 4.1.50(2).

1. As this is a submitter’s appeal, Halfback’s rights are limited by s 4.1.28 (4) and (5). As the application involves both impact assessment and code assessment, appeal rights are available only for that part of the application involving impact assessment – that is, over the buffer zone:

“4.1.28(4)         If an application involves both impact assessment and code assessment, appeal rights for  submitters are available only for the aspect of the application involving impact assessment.

(5)          If an application is processed under s.6.1.28(2) appeal rights for submitters for the application are available for the aspects of the development that would have required public notification under the repealed Act”.

1. It is common ground that the application to allow parking within the buffer zone would have required public notification under the repealed Local Government (Planning and Environment) Act– see s. 4.3(4) of that Act. 

1. There are differing submissions about the consequences here, where the application contains a mixture of code (non-notifiable) and impact assessable (notifiable) development. 

1. It is pointed out on behalf of Halfback that a change has been made to the application since Council considered it. There have been changes to the number of car parking spaces. 

1. The plan approval by Council is at p. 38 of  Ms Evans report. Council approved that plan.  It preserved only about 4 metres of the latter zone, as that car parking was allowed to intrude considerably within that zone.  The plan before this court is at p. 41.  It shows a 12 metre deep buffer, with a consequential alteration to the car parking arrangement (see Ex. 3).

1. Halfback wished to introduce evidence and make submissions about the adequacy of the car parking.  However, that wish was discouraged, because of the above provisions about appeal rights.

1. Halfback submitted that the entire application is now before the court for determination and as there has been only one application to Council, the court is seized of the entire application.  All contentious aspects of the application must now be considered by this court.  It was submitted that all of the present proposal is inevitably linked to issues about the width of the buffer zone, and so must be considered by the court. 

1. There was no contention by any party that the change was anything other than a minor change. Section 4.1.52(2)(b) provides that, if the appellant is a submitter (as in this case) the court “must not consider a change to the application for which the decision appealed was made unless the change is only a minor change”. Indeed, the change was brought about because of objections by Halfback. The number of parking spaces was reduced, because the depth of the landscape buffer was increased from 8 metres to 12 metres. As a consequence, some parking spaces were lost. Unsurprisingly, there was no suggestion at the hearing that such a change was anything other than a minor change.

1. Section 4.1.28(5) confines Halfback’s rights of appeal to that aspect of the application which deals with the buffer zone. Attention then has to be turned to the powers of the court. The court may confirm or alter Council’s decision or make a different decision in its place. In doing so, the court’s decision is taken to be the decision of Council. See s4.1.54 of IPA.

1. In this case the “decision being appealed” is confined to part of the Council’s decision dealing with the use of the buffer zone.  The court has authority to deal only with that part of the application.  There may be cases where the decision of the court necessarily involves some consequential issue, so that there is an inextricable link between the two issues.  In that case, the decision of the local authority would be replaced by act of the court.

1. Is there such an inextricable link in this case?  It is true that a decision about the width of the landscape buffer will have other consequences.  The wider the landscaping, the less room there will be for car parking. That does not mean that any car-parking issue is for the court to decide.  It has to be referred back to Council for its decision. 

1. It is sufficient to say that the court is satisfied that the reduction of the area of that part of the land included in the Particular Purpose 161 (Landscape Buffer) Zone that is proposed to be used for parking is a “minor change” for the purpose of s.4.1.52(2)(b) and that the revised plan has to be considered by Council. Halfback should not be allowed to call evidence about any parking issue.

The Buffer Zone

1. The buffer zone appears on the Council’s maps, but it has not been precisely defined by metes and bounds measurements.  If one simply scales it from the maps, then it would be 24-25m wide at the rear of this land. 

1. By the early 1980’s the Council was pursuing a practice of seeking a 15m planted buffer strip as a condition of approval of commercial development in this area.  A building application for this land was approved on 11 October 1984, providing for a landscape buffer of 15m.  Likewise, in 1983, the neighbouring land, now owned by Halfback, had a similar condition imposed on it.  Although the zone on the maps may be up to 25m wide, those conditions explain why Halfback’s contention here is for a 15m wide landscape buffer on this land. 

1. In the vicinity, Council has approved varying widths for the landscape buffer.  They are illustrated in the aerial photograph, Ex 10.  Halfback itself applied for a variation in 1994, and the width of the buffer was reduced to 12m.  As one travels further south from Halfback’s land, the buffer zones are 10m, 15m, and 3m. 

The Planning Provisions

1. The buffer zone does not appear on any of the Strategic Plan maps.  However, para 1.14.1(b) of the plan says that the Business Activity Node Districts are intended to be developed so that the residential development in their vicinity is adequately buffered by landscaping and other treatment from the commercial uses within the Business Activity nodes. 

1. Para 7.11 deals generally with such interface controls.  Para 7.11.2 sets out the performance criteria.  Relevantly:

(a)        This development must be undertaken to ensure that the amenity of adjacent residential development is not diminished by a loss of visual or acoustic privacy or visual amenity.

(b)        Fencing, landscaping or some other suitable treatment must be established and maintained at the boundary to provide a visual and acoustic screen between the main internal and external living areas of any adjacent residential development…. to protect the visual and acoustic privacy of residents within the residential development.

1. Para 7.11.3 sets out some acceptable design solutions.  They require:

(a)        a minimum 10m building setback of a commercial building from the residential boundary;

(b)        a minimum 3m wide landscape area (to a prescribed standard);

(c)        the balance setback area is not used for any commercial purpose except car parking and driveway areas;

(d)        a 1.8m high acoustic screen fence is established on the common boundary.;

(e)        the landscaped and building setback areas should not be used for service vehicles loading and unloading of goods, or building services … . and

(f)        the commercial development does not exceed a height of 8.5m.

1. Such acceptable design solutions, compared to the actual development on this land, are set out in the report of Mr Priddle (a town planner) at p 15. See Exhibit 1.  As the table demonstrates, this proposal complies with para 7.11.3, and in most cases significantly exceeds the minimum requirements.  The building is set back some 40m from the rear boundary.

1. The plan contains particular provisions with regard to building setbacks and landscape controls.  Para 10.7.1.1 says that the performance objective is to ensure that building setbacks are adequate to provide landscape areas to protect the visual amenity of the area. The relevant performance criteria appear in para 10.2.7.1(b):

“Development in the particular purpose zone must retain significant vegetation and provide landscaped areas and building setbacks to … rear boundaries of the site to ensure that the existing or likely future visual amenity and privacy in the adjacent development is protected.”

1. Para 10.7.4.1 provides that, in determining compliance with such performance objectives and criteria, Council will have regard to:

(a)        the extent and nature of the proposed landscaping;

(b)        the existing and preferred character development in the locality, including building setbacks;

(c)        …

(d)        the existing character development in the locality, including building setbacks;

(e)        the constraints and opportunities for development of the site;

(f)        the location on the site of significant vegetation worthy of retention;

(g)        the intended purpose of the landscape areas,

(h)        access and parking arrangements; and

(i)         the provisions of (para 7.11 above) to the extent they are relevant to a particular development.

The Residential Development

1. The adjoining residential development needs to be described.  It is a townhouse development.  It joins both this land and Halfback’s land.  There are three townhouses along the combined rear boundaries.  The rear boundaries are at something of an angle to the houses, but it can be seen that the closest parts of the houses are about 4m from the boundary.  They are two storeys in height.  The only relevant difference, between this land and Halfback’s land, is that the single townhouse to the rear of this land has its floor level about a metre higher than the townhouses behind Halfback’s land.  That is, the residential land is built up to about a metre in height behind this land.  There is already a high wooden fence on top of the retaining wall.  There is some vegetation, including trees, between the three townhouses and the boundary fences.  See the aerial photograph Ex 10. 

The Important Facts

1. The evidence, including the evidence of the town planners, shows that there are a number of significant facts which should be taken into account:

(a)        Council’s minimum requirements for commercial areas are well exceeded – the building is 40m from the rear boundary, and the proposed landscaping is 12m, not 3m. 

(b)       The rear boundary, at 13.5m is quite short compared both to the land itself, and Halfback’s rear boundary, which is about three times longer.

(c)       Most of the adjoining land has buffer widths of 12m or less.  There are two 15m wide areas, but the majority is less.  In comparable situations (that is, where the residential land has townhouses close to the boundary) - the buffer strip is 10m wide.

(d)      As discussed above, only one townhouse will be immediately affected by the width of this buffer zone. 

The use of the land by Clarendon Homes will generally be restricted to normal business hours.  The great majority of use will be between 8 am and 6 pm.  The site would not normally be used during the weekend, or late at night.

(e)       As the aerial photograph shows, the subject land has only a relatively small area available for car parking.  The evidence is that there is a need for car parking on all land that is properly available for it. That is a relevant consideration here.  For example, see para. 11.5.1 of the plan.

(f)       No submissions objecting to the proposal were received from any of the adjoining residents.  The only objection is from Halfback.  No concern was expressed about the residents of the townhouses.  Concern was expressed about Halfback’s own interests, in this way:

“There is a buffer zone at the rear of 3442 Pacific Highway of 10m.  That was originally 20m and was reduced to 10m as the minimum buffer zone which was required on the site notwithstanding the existence of large trees.”

I do not believe that the proposal for the (subject land) should be approved whereby the buffer zone at either side of the 3440 Pacific Highway site is reduced by less than 10m and to allow for car parking in that zone is no buffer at all.

If that buffer is in any way reduced then it increases the exposure which our site has diagonally for persons occupying the site to the east and north of the 3440 Pacific Highway site increasing the risk that complaints may flow from tenant’s disruption in an interface.”

(g)Council’s conditions require an additional 1.8m acoustic barrier along the rear boundary.  That fence will be in addition to a retaining wall and fence already erected along the boundary.

(h)The evidence makes clear that the 12m buffer zone on Halfback’s property is an effective one.  That is, it is well vegetated and well maintained.  The trees and shrubs on it provide a dense screen.  Similar planting (dense planting is required by the Council conditions) should achieve the same result in this case.

1. The author was apparently mistaken in believing that a 10m buffer applied at 3442 Pacific Highway.  It is actually 12m.  In any case, the suggestion seems to be that the buffer should not be reduced to a smaller depth than that at 3440 Pacific Highway.  That is not proposed.  The concern about car parking within the buffer zone may have arisen from some earlier proposal – it would not be allowed under the present conditions contained in Council’s approval.  While the last paragraph of the objection is difficult to understand, it apparently rests on a fear, that this buffer zone may be narrower than Halfback’s zone.

1. The opinions of Mr Van As were in favour of the 15m buffer.  He was influenced by the policy to be found in the plan, where any development was prohibited within the 25m buffer zone.  This development is indeed inconsistent with that intent.  The general landscape requirements of s 7.11 of the Planning Scheme are not the only consideration.  Special consideration has to be given to this particular zoning.  This application for a material change of use will see an intensification of the use of the subject land (from warehouse to retail showroom and commercial premises) and that intensification would favour maintaining the maximum width, rather than relaxing its requirements.  The buffer should be strengthened, rather than further eroded.  Overall, a landscape buffer of at least 15m should be maintained, he said.

1. The marginal effect on parking on the land should be kept in mind.  Certainly, two parking spaces would be lost, and more might be lost, if the landscape buffer were 15m rather than 12m.

Conclusions

1. It is true that there is now some intensification of the use of the subject site.  That has increased the need for parking.  That increased need is a relevant consideration here.  Those provisions show that parking alone does not have the same impact as, say, the presence of a building. 

1. The facts to be considered should include the opinions of Mr Priddle and Ms Evans (both of which were in favour of the 12m landscaped buffer) and Mr. Van As. Keeping in mind the various buffer widths adopted by Council in the past, it can be seen that the better choice in this case is 12m, rather than 15.  If the matter were being considered afresh, without the existing pattern of nearby development, then the decision might have been in favour of the full 25m or so.  As things have happened, it is now clear that a 12m buffer strip would be adequate in the present situation, and would be an appropriate response to the  town planning provisions.

1. The appeal must be dismissed.  There is the need to deal with the amended application.  These are the orders of the court:

(a)         The appeal is dismissed

(b) Declare that the reduction of the area of that part of the land included in the Particular Purpose 161 (Landscape Buffer) Zone that is proposed to be used for parking is a “minor change” for the purpose of s 4.1.52(2)(b) of the Integrated Planning Act.

(c)         Order that the use of that part of the land that is within the Particular Purpose (Landscape Buffer) Zone for the purpose of parking is approved by the court subject to the implementation and maintenance of a 12 metre wide landscape area in the location shown on ERM Drawing Number 8020896 A1 01 (Exhibit 1 – figure 7) and subject to compliance with Condition 4 of the Development Approval as amended herein. 

(d)        Order that:

(i)       Condition 1.1 of Council’s decision notice should be amended to provide: “the development of the site shall be generally in accordance with Drawing Numbers WD.1 (Issue B) and WD.2 (Issue B), dated 21 June 02 by Robert Gow Architects except as altered by the Court’s approval or otherwise lawfully amended by the Council.”

(ii)      A new condition 1.2 should be included to provide:  “the development of the site shall include the implementation and maintenance of a 12 metre wide landscaped area in the location shown on ERM Drawing No. 8020896 A1 01 and in accordance with condition 4.”

(iii)     Condition 4.1 should be amended to provide: “a landscape plan and documentation for the whole of the site shall be prepared by a Corporate Member of the Australian Institute of Landscape Architects (or other suitably qualified and experienced professional deemed suitable by Council) and shall be approved by the Director of Development, Health and Environment.”

(iv)     Condition 4.2.8 should be amended to provide: “a landscaped area, densely screen planted with vegetation, shall be provided and maintained in the location shown on ERM Drawing No. 8020896 A1 01 along the rear of the site including the provision of suitable advanced trees, with a minimum container size of 25 litres with a minimum height at maturity of 6 metres.”

(e)         The subpoenas are discharged and all documents produced shall be returned to their respective owners by the Registrar.

(f)         Matters relevant to costs (including any claims for costs associated with the subpoenas) should be reserved.