Heran Building Group Pty Ltd v. Logan City Council & Anor

[2002] QPEC 6

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Heran Building Group Pty Ltd v. Logan City Council & Anor [2002] QPEC 006

PARTIES:

HERAN BUILDING GROUP PTY LTD             Appellant

And

LOGAN CITY COUNCIL  Respondent

And

NANCY BROWN  Co-Respondent

FILE NO/S:

Appeal No.2592 of 2001

DIVISION:

Planning and Environment Court

PROCEEDING:

Applicant Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

15 February 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 – 17 October 2001

JUDGE:

Judge Quirk

ORDER:

Appeal dismissed

CATCHWORDS:

Integrated Planning Act 1997; s. 6.1.30(3)(a) Local Government (Planning & Environment) Act 1990 ss.4.4(5) & (5A)
Vynotas Pty Ltd v. Brisbane City Council (2001) 112 LGERA 206

COUNSEL:

Mr J Haydon for the appellant
Mr G Gibson QC for the respondent

SOLICITORS:

Tobin King Lateef for the appellant
Corrs Chambers Westgarth for the respondent

1. This appeal is against the respondent’s refusal of an application for a development permit for a material change of use at land at Cornubia and for approval of a reconfiguration of the land.

1. The site occupies an area of 2.833 hectares and has frontage of 93.5 metres to California Creek Road.  To the rear it touches the road reserve of Umah Street.  A single dwelling house presently stands on the land which has been substantially cleared of natural vegetation.

1. The application in question was for

·A development permit for a material change of use from rural to residential (suburban residential) use and

·A development permit for the reconfiguration of the site from one lot into 19 lots.

The reconfiguration provided lots with an average size of 1154 square metres comprising

o12 lots which are between 1000 square metres and 1010 square metres

o5 lots which are between 1121 square metres and 1352 square metres and

o2 lots, one of which is 1643 square metres and the other 2722 square metres.

1. To determine the appeal it is necessary only to focus upon the contentious issue that lay at the heart of the matter.  This was whether there was sufficient consistency between what was proposed by the application and the relevant planning instruments.

1. The application was lodged under the provisions of the Integrated Planning Act. However, the Town Planning Scheme in force in the City of Logan is a Transitional Planning Scheme within the meaning of Chapter 6 of the Integrated Planning Act. The material change of use component of the application is such as would have required a re-zoning under the repealed Act. Accordingly, s.6.1.30(3)(a) of the Integrated Planning Act requires that the application must be decided under s.4.4(5) and (5A) of the repealed legislation.

1. It is noted that the material change of use component seeks approval for the use of land for residential purposes at a level of density greater than that reflected in the reconfiguration exercise.  The planning report from Mr Dennis Brown (an experienced consultant) that accompanied the application, referred to the density of development contemplated by the proposal as being consistent with the R2 designation.  This designation would allow minimum allotment sizes of 500 square metres.

1. In that respect the proposal is at odds with the Strategic Plan and this was conceded by Mr Brown.  The Strategic Plan map has the site as part of the Residential Low Density designation and it is subject to the Residential Area Strategy as it is to the Carbrook/Cornubia District Conservation Strategy.  It is worth noting what the Planning Scheme has to say regarding the intent of the Residential Area Strategy:-

“Intent

(a)The Residential Area Strategy is intended to facilitate the provision of a range of residential development types within an attractive urban environment characterised by a high level of amenity.

(b)          The Urban Residential Area is intended to be:

(i)developed for a mixture of housing of various styles including small to medium sized lots and medium density housing within an environment where the built form predominates;

(ii)developed for local service functions such as public utilities, public recreation, schools, child care centres, local shops, local shopping centres, health care practices, veterinary clinics, commercial premises, commercial services, community facilities (Public libraries, swimming pools and community centres), places of worship and service stations which service local areas and are ancillary to residential development in that locality;

(iii)provided which all infrastructure services; and

(iv)primarily developed in accordance with the provisions of the Residential Zone at a scale and density provided by the Residential Development Density Maps.

(c)The Residential Low Density area is intended to be:

(i)developed for low density housing of a limited range of styles on large urban lots within an environment where open space predominates over the built form;

(ii)developed for local service functions which service the local area and are ancillary to residential development in that locality;

(iii)provided with all infrastructure services; and

(iv)developed in accordance with the provisions of the Residential zone at a scale and density provided by the Residential Development Density Maps.”

1. The proposal before the court is clearly inconsistent with that planning strategy in that it intends residential development

§That involves a mixture of housing styles including small to medium sized lots and medium density housing rather than low density housing;

§Within an environment where the built form predominates rather than within an environment where open space predominates over the built form; and

§That is in accordance with a R2 area rather than a R1 Area

In s.3.5.1.2 and s.3.5.1.4 the following is said in respect of the R1 and R2 Areas:-

“R1 Areas

3.5.1.2The minimum lot size in R1 areas must be 2000 m² except that, where at the time of application the R1 areas are identified as having high conservation values as set out in the relevant District Conservation Strategy, the Council may:

(a)require lots with a larger area after taking into account the impact of development on the conservation values; and

(b)approve lots with an area not less than 1,200 m² where:

(i)land with the high conservation values is set aside for public recreation of conversation purposes or incorporated as part of large lots which restrict the density of development in sensitive areas; and

(ii)the number of such lots does not exceed 50% of the yield which may have been achieved on the site allowing for site constraints which would have ordinarily constrained development.

R2 Areas

3.5.1.3The minimum lot size in R2 areas must be 450m² provided that the area of rear access lots is not less than 600m² (exclusive of the access strip), and the average area of all lots (excluding lots for parks, drainage or any other public purposes) in the development is not less than 500m².”

1. In the Carbrook/Cornubia District Conservation Strategy which is part of the Strategic Plan, the land is in Precinct 1.  It is said specifically in the Strategy that in this Precinct residential development is intended to be maintained at a low order of density to further the Strategy’s stated objectives.  The proposal’s inconsistency with the proposal arises in that it does not sufficiently

§conserve land for environmental purposes contemplated by the intent;

§retain the integrity of the communities of Melaleuca nodosa;

§retain the amenity and character of Precinct 1 for residential low density development; and

§provide corridors for recreational trails and wildlife which connect up to the California Creek corridor.

1. None of this was really denied by the appellant.  However, relying on what was said by the Court of Appeal in Vynotas Pty Ltd v. Brisbane City Council (2001) 112 LGERA 206, it was submitted that, notwithstanding the provisions of the Strategic Plan which related to the subject land and appeared to stand in the way of its approval, the application was nevertheless entitled to be considered on its merits.

1. The arguments in favour of its approval were (stated in a very general way)

§other areas in the locality designation R1 have been developed in the past to a density more in keeping with the R2 designation and this proposal is no more than a logical extension of that development

§there is no prospect of the subject land contributing in any meaningful way to the environmental activity to California Creek

§the availability of undeveloped urban residential land in the Cornubia area is limited and there is a high level of demand for residential land in this part of the city.

1. Starting with the Vynotas principle it is true that the Integrated Planning Act no longer allows any absolute prohibition of any form of development in an area.  It is quite another thing to say (and this was recognised by those who decided Vynotas) that provisions of a Transitional Planning Scheme are now to be accorded little if any weight.  One must need go no further that s.4.4(5A) of the repealed legislation (which is picked up by s.6.1.30(3) of the Integrated Planning Act) and provides:-

“The Local Government must refuse to approve the application 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.”

1. The degree of conflict here is high.   The relevant provisions of the Strategic Plan are precisely drawn and leave little doubt as to what the planning authority has in mind for the subject land in terms of intensity of development.  It is not what this proposal represents. 

1. Senior Counsel for the respondent pointed out very relevantly that the Planning Scheme provisions with which we are concerned are of relatively recent origin.  The Strategic Plan was drawn in 1995 (when the earlier development to which reference was made was in place).  It was reviewed and refined in 1997.  There is no basis at all for any suggestion that, because of what had happened in the area, these expressions of planning strategy have been “overtaken by events”.

1. Again and again it has to be emphasised that this Court will not adopt the role of the planning authority and decide for itself whether some particular strategy differing from that chosen by the elected local government should be preferred.  Substantial justification must be shown for any departure from planning strategies formally adopted by a Council.

1. Other more recent approvals (the Jayslee and Predabon Properties) were discussed.  Each of these developments have their own peculiar features and provided, on my view of the evidence, no reason for setting to one side the provisions of the planning scheme relevant to this application.

1. I accept that Mr Brown is entitled to (and I respect) his opinions.  On the other hand the position of the respondent in respect of this land has been plainly stated and I see no justification for disregarding it.  There may be a high level of demand for residential opportunity in the area.  This is not however, as I see it, any warrant for departure from clearly expressed planning strategy but involves wider questions which the respondent must bear in mind when it considers the future planning of the area.

1. Although it did not prove determinative in the appeal, the matter of environmental connectivity was very much an open question as the evidence of Allan Chenoweth (exhibit 5) indicates.  The view that the land can serve some useful function in this context was by no means discredited.

1. The onus of proving that the application was one that should be approved rests with the appellant.  I find, for the reasons which I have indicated, that this onus has not been discharged.  The appeal must be dismissed.