Ivadale Holdings Pty Ltd v Caloundra City Council

[2004] QPEC 11

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Ivadale Holdings Pty Ltd v Caloundra City Council [2004] QPEC 011
PARTIES:	IVADALE HOLDINGS PTY LTD Appellant v CALOUNDRA CITY COUNCIL Respondent
FILE NO/S:	BD2293 of 2003
DIVISION:	Planning & Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	2 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	26 & 27 November 2003
JUDGE:	Quirk DCJ
ORDER:	I am satisfied that the onus of establishing that this application should be approved has been discharged and the appeal will accordingly be allowed
CATCHWORDS:	-
COUNSEL:	Mr C Hughes SC for the Appellant Mr S Ure for the Respondent
SOLICITORS:	Connor O’Meara for the Appellant Heiner Doyle for the Respondent

1. This appeal is against the respondent’s refusal of an application for planning permits necessary to legitimise a large billboard which has already been constructed beside the arterial road approaching Caloundra.  The structure is on the northern side of Caloundra Road, a little to the west of its intersection with Sugarbag Road.  It has a face area of 48 square metres and this is the major issue in the disagreement between the Council and the appellant.  Its purpose is to publicise the development of a residential estate on the land upon which it stands.

1. In its opposition to the proposal the respondent contended that it would conflict with a number of its formally expressed planning strategies.  These were:

1.          Conflict with the intent of the Residential A Zone

It was pointed out that an advertising device is a defined use in the Planning Scheme.  The subject land is included in the Residential A zone, the Table of Zones for which has the “Catch all” in column 6.  “Advertising device” does not appear in any of the other columns and was therefore, by definition, a prohibited use under the old regime.

By reason of s 6.1.2(3) of the Integrated Planning Act:

“A prohibited use in a formal Planning Scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited”.

1. The potential conflict between hoardings (particularly those permanently positioned) and residential amenity is not difficult to appreciate.  The visual impact of such devices would ordinarily be considerable.  However, the purpose of this device is, in a way, intended to further the progress of the land to residential development.  At present no residences are in place in its vicinity.  When the land has been marketed and is ready for the construction of houses, the sign will go. These are matters that must be taken into account in this case.

2.          Conflict with the Strategic Plan

The subject land is designated with a Preferred Dominant Land Use.  The intent for this designation is expressed as follows:

“The Low Density Residential designation includes existing and future areas of urban housing intended to provide a variety of residential accommodation styles in a low-rise format, generally up to 2 storeys in height.  The expected range of development density would be between 10-20 dwelling units per hectare in those areas which can be connected to a reticulated sewerage system or are expected to be able to do so within a reasonable time frame.  In areas which are unlikely to be sewered, development densities will be limited by the ability to dispose of sewage waste on site.  Low Density Residential areas are not confined to residential uses but may include other uses of a compatible nature which are required to service the residential area and which are a necessary and integral part of such an area.”

1. The planning principles founding this intent are fundamental enough but the same considerations as were referred to under the previous heading apply.

Objective 13(e) of the Strategic Plan provides:

“Objective 13(e)
TO MAINTAIN SCENIC VIEWS ALONG TOURIST DRIVES WITHIN THE CITY

Implementation

(a)Scenic routes have been identified on the Strategic Plan Map. Applications for development along these routes will be assessed using the following criteria:

(i)Development should be unobtrusive when viewed from the road;

(ii)A vegetated buffer may be required in locations that do not affect distance views;

(iii)Important scenic panoramas shall not be obstructed;

(iv)The proposed development does not constitute ribbon or strip development;

(v)Tourist or commercial development must be low key both visually and in scale so as not to detract from the visual amenity;

(vi)…

(b)   …

(c)It is Council’s intention that the entrances to Towns and Urban areas be visually attractive and inviting to residents and visitors alike.  In this regard Council may require proposed development applications to be accompanied by a planning report addressing such matters as visual impact, setbacks, landscaping and treatment of access points.

(d)   The provisions of objective 10(f) above will also be applied by Council in the achievement of this objective.”

1. It is accepted that these provisions apply to Caloundra Road.  The visual impact of the sign and the level to which it could fairly be considered to be “obtrusive” are the central issues in this appeal and will be the focus of any discussion of the evidence.  Equally any obstruction of a scenic panorama is a matter which must be closely examined.

3.          Part 7 of the Planning Scheme

This part of the Scheme is concerned with the “Placing of Advertising Devices on Premises”.

The introduction to the part explains:

“This part regulates the placing of advertising devices on premises.  It is to be read in conjunction with Planning Scheme Policy PDPSP 7.0/01- Siting and Design of Advertising Devices.”

1. Table 4 sets out various types of signage, the areas in which they are intended and the level of assessment required.  Billboard Signs in residential areas fall within the “NP – Impact Assessment (not preferred)” category.

1. Section 7.5 (c) provides:

“Section 7.5 Regulation of Advertising Devices

(c)Impact Assessable – Not Preferred (NP) – advertising devices which are Impact Assessable (Not Preferred) do require a development approval.  Development applications will be assessed against the purpose of Planning Scheme Policy PDPSP 7.1/01 – Siting and Design of Advertising Devices and for their impacts,  pursuant to Section 7.6 (Assessment of Impacts) of the Planning Scheme.  Development applications in this category require public notification.  Not Preferred advertising devices are considered to be contrary to the purpose of Planning Scheme Policy PDPSP 7.01/01 and are generally unlikely to be supported by the Council”

1. In s 7.6 of the Scheme one finds the assessment criteria for Impact Assessable (Not Preferred) developments.  It provides:

“Section 7.6 Assessment of Impacts“
…
a) Character and streetscape

(i)The number and nature of advertising devices on a site is to be compatible with the existing and future planned character of the locality in which the advertising devices are intended to be erected.  In determining the ‘future planned character’ of the locality, the Council will rely on the relevant intends of its Planning Scheme (including any Development Control Plan or Local Area Plan).

(ii)The scale, proportions and form of advertising devices are to be appropriate to the streetscape or other setting in which they are located.  In particular, advertising devices in rural and environmental settings should not detrimentally impact upon the appearance, or natural or rural character of those areas.

(iii)Advertising devices are not to block or compromise a view or vista of public value or to deleteriously impact upon the visual amenity of a scenic route or lookout.

(iv)…

(v)Advertising devices are not to detract from the attractive image of the City.”

4.Local Planning Policy

The Local Planning Policy to which Part 7 referred deals with the matter of the “Siting and Design of Advertising Devices.  The purpose of the policy is spelt out in clause 1.1.  Interestingly the Policy concedes (in section 1.1(4)):

“Proponents may obtain approval for “non-complying” advertising devices but only where those devices are shown to comply with the purpose of this Policy and have been assessed for their impact in accordance with section 7.6 (Assessment of Impacts) of the Planning Scheme.”

1. Section 6.3.2 of the Policy in dealing with large billboard signs specifies that:

“A Billboard Sign (Large) shall:-

(a)have a maximum surface area of 18.0 square metres per side for a maximum of two sides and

(b)otherwise comply with requirements (b) to (f) of section 6.3.1 (Billboard Sign).”

1. At first glance the limits thereby stipulated appear definite enough but it has to be remembered that these limits appear within the body of a policy which is not a vehicle for the imposition of mandatory requirements. Had they been part of the Scheme itself approval of the proposal might have been more difficult. As has often been pointed out however the application of a policy requires emphasis being placed upon the Policy’s objectives rather than the form in which it is drafted. Whether the proposal offends the planning objectives found in all of the planning instruments referred to above, particularly the Strategic Plan (remembering 6 section 4.4(5A) of the Local Government Planning and Environment Act) is a matter of judgment in respect of the merits of the case.

1. As I have indicated visual impact of the sign and the consequences of that for the amenity of the area in which it is found lie at the heart of the consideration of the merits of this proposal.  I was fortunate to have the assistance of expert witnesses of competence and experience in these important matters.  Mr Challoner, a consultant with long experience in general town planning and Mr Chenoweth, who specialises in the area of environmental planning and landscape architecture were called by the appellant.  For the Council, evidence was given by its Town Planner, Kristy Plant and Mr Middleton, an Architect and Urban Designer.

1. Mr Challoner, while recognising that a literal interpretation of some of the planning instruments that were referred to might suggest some tension with this proposal, it had to be remembered that its purpose was to give direction and to promote an estate the development of which is in keeping with planning for the area.  The sign itself has been tastefully designed (see Exhibit 4) and will remain in place only until residences begin to establish.  It was also important in his opinion that it was located within an open space buffer area and not the residential area itself.  He did not regard the proposal as unreasonably detracting from the area’s character nor did he believe that it contributed to visual clutter.  While there are a number of billboards further to the west, there is none in this locality.

1. As to the policy, he noted the specified limit of 18 square metres, but pointed out that the purpose of providing direction promotion would not be likely to be achieved by signage with such a small face area.  Whether or not it would be “unduly obtrusive” was a far more important question in his view and, for reasons which he explained, he did not believe that it would be. 

1. This was a position shared by Mr Chenoweth who is very experienced in these matters.  Indeed he told the court that he has been in consultation with Council in respect to concerns of the kind raised here.  In a carefully prepared assessment of the proposal (Exhibit 2) he made the following points:

·        The Billboard is not visible for many existing residences and will not be illuminated.  It will not affect residential amenity.

·        Despite its size the Billboard is relatively unobtrusive even in its current blank (white) format.  It is located so as to be visible only to eastbound motorists and is screened by topography and vegetation from all other viewpoints.

·        Although the sign will have some impact on the view of a forested hill as seen from a designated scenic route the impact on character will be relatively minor and temporary.  The topography road alignment and vegetation currently provided only a short “window” of full visibility (two to three seconds).  During the estimated five years in which the sign will be in position, this window will vary according to the extent of vegetation lopping and regrowth within the road reserve up to a maximum of a 20-22 second view by motorists.

·        There are other billboard signs along Caloundra Road between the Bruce Highway and Little Mountain so the sign is not inconsistent with the existing streetscape but it is far enough removed from other similar billboards as not to contribute to visual clutter.  He noted that any vegetation within the road reserve and the subject land which is pruned or lopped will quickly regrow after such management ceases.  The gap in the hillside vegetation will rapidly heal when the sign is removed.

1. Mr Chenoweth concluded that this Billboard Sign has a minor level of visual impact on the views experienced by motorists travelling in one direction only on a relatively short section of Caloundra Road and that these impacts will be temporary.  In his opinion matters of visual impact should not stand in the way of an approval of this proposal.  I was impressed by the evidence of both Mr Challoner and Mr Chenoweth.  I believe that their conclusions are soundly based and consistent with relevant planning considerations.

1. Mr Middleton, in his adverse assessment relied strongly upon a perception that this Billboard would compromise the scenic quality of the road leading into Caloundra.  He pointed out that when one reaches the crest of Little Mountain, one is suddenly presented with a view towards the city, the coastline and Moreton Bay.

1. There is no doubt that this is so but I believe that Mr Middleton has taken too negative a view of the Billboard’s impact upon this “arrival experience”.  As the evidence indicates (and this was reinforced by an inspection of the area to better understand this evidence) the sign is below and some distance to the west of the crest.  I believe Mr Chenoweth’s position is the preferred one.

1. Ms Plant appeared to be substantially influenced by Mr Middleton’s assessment and the degree of its excedence of allowable face area (pursuant to the policy of the sign).  While I respect the views of the respondent’s witnesses, I have to say that I prefer those of Messrs Challoner and Chenoweth.  On the whole of the evidence I am satisfied that the onus of establishing that this application should be approved has been discharged and the appeal will accordingly be allowed.