Jackson v Redland Shire Council

[2003] QPEC 62

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Jackson & Ors v Redland Shire Council & Anor [2003] QPEC 062

PARTIES:

RONALD JACKSON, JUNE ROSE JACKSON, JOHN ELLIOTT, CHRISTOPHER GLASSOCK, BRUCE ALEXANDER MARTIN, SUSAN MARTIN, JOHN PETER ROGERS, THE FRIENDS OF STRADBROKE ISLAND ASSOCIATION INC
Appellants

v

REDLAND SHIRE COUNCIL
Respondent
and
ARCHITECTURE 38 PTY LTD
Co-Respondent

FILE NO/S:

BD 926 of 2003

DIVISION:

Planning and Environment

PROCEEDING:

Submitter appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14  November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

23-26, 29 September, 7,8, 29 October 2003

JUDGE:

Judge Robin QC

ORDER:

Appeal allowed, Co-respondent’s development application refused

CATCHWORDS:

Adverse submitter appeal against approval of multiple dwelling - whether proposal for two 4 bedroom units or 4 two bedroom units – whether Point Lookout Development Control Plan “permitted” (as anticipated by the general Planning Scheme) multiple dwellings on sites less than 800 m² or narrower than 20m – whether population density and private parking requirements infringed – whether sufficient planning grounds were shown to justify approval of proposed development notwithstanding conflict – whether alternative hypothetical compliant developments were a less “sensitive and desirable” solution for the site than the proposal for purposes of s 14 of the DCP

COUNSEL:

Mr T Quinn for appellants
Mr S Ure for the respondent
Mr R Traves for the co-respondent

SOLICITORS:

Carew Lawyers for the appellants
Deacons for the respondent
Minter Ellison for the co-respondent

1. This is an appeal under s 4.1.28 of the Integrated Planning Act 1997 (IPA) against the Council’s approval of the co-respondent’s development application of 3 July 2001 for a material change of use of a site at 18 Cutter Street, Point Lookout for “two x attached houses (duplex)”, more correctly described for planning scheme purposes as a multiple dwelling comprising two dwelling units.  By reason of s.4.1.50(2) of the IPA, it is for the co-respondent to establish that the appeal should be dismissed, rather than for the appellants to prove that it should succeed.  By s 4.1.52(1) the appeal is by way of hearing anew.  The important question is not whether the Council’s decision can be shown to be insupportable or wrong, but whether this court, considering the development application anew, is satisfied it ought to be approved. 

1. The appellant is the architect for the proposed development.  Its principal, Mr Natoli, is the son in law of the owners (and present occupants) of the site, Mr and Mrs Faulkner.  The appellants are owners and/or occupiers of units in a building called Los Nidos, the site’s neighbour to the rear, whose frontage is to Prosperity Street and the Prosperity Street house immediately to the west of it – apart from the corporate appellant, whose supporters have taken an active interest in numerous planning issues that have arisen on North Stradbroke Island over the years. 

1. Cutter Street represents the seaward boundary of an enclave of residential development overlooking Deadman’s Beach, and separated from it by the western part of the Headland Reserve; the eastern end of the street is a cul de sac, presumably at the edge of the Reserve.  There is no development seaward of Cutter Street.  On the other side are only five allotments, to the point where the street turns away from the beach to the south.  On the western side of this part of the street are numbers 3 and 5 Cutter Street, each of which exhibits (the former still under construction) recent development by way of two three-storey houses, one behind the other.  The sensitive location of Cutter Street, which may be viewed from the beach and important lookout situations in the Reserve, is conceded. 

1. By common consent, the developments at No. 3 and No. 5, a five in-a-row townhouse development called Mintee east of the site (on a large block extending from Cutter Street through to Prosperity Street) and a large house (“the blue house”) at 12 Cutter Street represent “suburbia transported to the island” and conflict with both the established character of Point Lookout and the desired character.  They are wholly at odds with the more modest scale of existing development in the area, and in their departure from the tradition of use of “lightweight” materials.  Mr Natoli’s design, an innovative one in some respects, is not open to that objection, with the exception that a masonry “party wall” extending the full length of the proposed construction will be partly exposed; it envisages something considerably bigger than the existing two-storey house, with the qualification that the existing whale-watching tower, which forms a small open third storey, will not be replicated.  While it seems that the aesthetics of Mr Natoli’s design are not universally admired, I do not think any objection to them based on preserving the traditional or the intended character of Cutter Street from the point of view of an observer in Cutter Street, or in the Reserve or on the beach can reasonably be persisted in - disregarding considerations of bulk or scale.   

1. The site (16 Cutter Street) is Lot 7 on Plan 85427, Parish of Stradbroke; its area is 597m².  The Cutter Street frontage (the width generally) is 18.71 metres.  The side boundaries are roughly 32 metres in length. The site slopes upwards from Cutter Street, the rear boundary being approximately 3.75 metres higher than the front boundary.  The submissions of Mr Traves, for the co-respondent, record that the existing house is set back 14 metres from the Cutter Street frontage, two metres from the western boundary, and, putting aside a freestanding garage, 5.5 metres from the eastern boundary; it is set six metres back from the rear boundary, across which is located Los Nidos.  The setbacks proposed are 9 metres at the front (slightly more in a central recessed section), 4.5 metres at the rear  and 1.9 metres at the sides (those being dimensions for the roof, which at the rear and sides extends some 600 millimetres beyond the walls).  The appellants’ claims include that the whole construction ought to be moved forwards, to the point of the minimum front setback allowable (six metres) which would have the effect of lowering the height, from the perspective of some fixed datum, such as sea level, and from the perspective of the individual appellants, by half a metre. 

1. (Considerable time was spent receiving opinions as to whether this change would cause the building to appear more dominating from Cutter Street, or points further out.  The view which I prefer is that observers in any location would have no difficulty appreciating the building for one of its size, and that an extra three metres forwards, it would not impact any more seriously on their enjoyment of the spectacular location.  A move forwards would improve views from Prosperity Street properties, but almost certainly impact adversely on views from Mintee and No. 14 Cutter Street, also on views from the development itself, having regard to screening along the frontage which will be required by relevant development standards, and perhaps trees growing across Cutter Street in the Reserve.  The evidence shows that persons unknown have visited damage on some trees in the Reserve, perhaps in the hope that their death will improve views.  There may be a minimal adverse impact to users of Cutter Street, who would probably gain more enjoyment from beholding a nine metre deep front yard than a six metre one, but one would expect their attention to be focussed on the endless open space to the east, and that they would not have any impression of being crowded out by the building.)

Council assessment of the development application

1. The Council’s original acknowledgement notice given in accordance with s 3.2.3 of the IPA characterized the proposed development as Multiple Dwelling x 4, indicative of an early appreciation by the Council’s Development Assessment Services Manager of one of the grounds of objection being pursued in the appeal: see Exhibit 3A, supplementary material tendered by the appellants for addition to the “Appeal Book”, Exhibit 3. 

1. By 18 February 2002, when the Faulkners wrote to Councillor Bradley, expressing dissatisfaction about it, the matter had become political, in the sense that Councillors (it was thought) had been approached by objectors.  While involvement of elected Councillors may be uncommon, I can see nothing wrong with that in principle, assuming, of course, there is no hint of corruption or anything of that kind.  Developers and objectors alike are entitled to raise with Councillors issues relating to development applications, as much as any other issue respecting which Councillors can perform any useful function or service. 

1. Exhibit 3A contains minutes of a meeting held between Council officers and Mr Natoli on 22 February 2002 at which the potential for the two units proposed to be used as four was noted:  “this possibility is to be removed.”  According to the minutes, Mr Natoli was:

“Advised that the proposal as stands cannot be recommended.  The minimum site area for multiple dwellings under the planning scheme is 800 sq m.  The subject site is 598 sqm.  Accordingly it is expected that the relaxation of the site area to allow a duplex can only be recommended where the outcome is in complete accord with the Town Plan and the DCP3.”

The minutes concluded, pursuing the same theme:

“8.  Site coverage for a single individual building is 140 sqm.  RSC is unsatisfied with alternative solutions.  Site is a small area and DCP requirements should be met if approval is to be recommended.”

after canvassing some other points.  Exhibit 3A contains a letter from Paul Toohey, of the Council, of 31 July 2002 pursuing the issues of on-site sewage disposal (the area is not expected to be sewered before 2005) - and associated vegetation requirement relaxations, site coverage, various design issues (including impact on views) and the “two or four units” issue:

“The current design proposal shows each of the units with a kitchen or bar area, living/family/dining areas, two bedrooms, and a bathroom on each floor, which implies that the building can operate as 4 separate units rather than the 2 that have been applied for.   ... I asked that there be no possibility of subsequent conversion of the 2 units to 4.”

The ensuing assessment process included an  “Amended” Acknowledgement Notice of 3 October 2001, headed “Multiple Dwelling x 2” and an Information Request of 24 October 2001 headed “Multiple Dwelling x 4”.  Division among Councillors as to the merits of the proposal was revealed at a Development Assessment Committee Workshop on 4 February 2003.  Ultimately, the Report for the Development Assessment Panel meeting for 7 February 2003 recommended approval of the development application, subject to conditions.  The proposed design was “considered to be the most desirable outcome for the site ... to be innovative and sensitive to the local environment.  Discretion on the site coverage issue is therefore warranted.”  The Council’s favourable decision was ultimately advised to Mr Natoli by a Development Application Decision Notice of 18 February 2003. 

The Point Lookout DCP and general planning instruments for Redland Shire

1. The Planning Report analyses in detail the 14 adverse submissions that had come in.  Understandably, they focus on the Council’s Development Control Plan 3, which was gazetted on 9 February 1996, and has been amended in a respect that appears not to be relevant on 28 November 2001.  It is the principal planning instrument applying to Point Lookout.  According to 1.3, “Its aim is to provide for the appropriate and orderly development of the township and to ensure that the natural environment and character of Point Lookout is maintained.”  That general sentiment is repeated at many points in the document.  Section 1.5 describes the DCP’s relationship to the Town Planning Scheme:

“...
The provisions contained in this Development Control Plan are applicable in addition to the provisions of the Strategic Plan, Town Planning Schedule and By-laws and Subdivision of Land By-law which should be read in conjunction with this Development Control Plan.  Where there is an inconsistency or conflict between the Town Planning Scheme and the Point Lookout DCP, the provisions of the Point Lookout DCP shall prevail to the extent of the inconsistency.

The Development Control Plan expresses Council’s land use intentions in detail for the DCP Area, and hence provides an amplification of the general land use intent expressed in the Shire Strategic Plan.”

1. I think it is clear that the DCP provisions do not stand alone. It is open to the appellants, as they do, to rely on conflict between the development proposal and the Strategic Plan and the Town Planning Schedule (which the DCP acknowledges) for the purposes of applying the familiar provisions s 4.4(5) and (5A) and/or 4.13(5) and (5A) (as appropriate) of the Local Government (Planning and Environment) Act 1990, provisions made relevant to the present Development Application by ss 6.1.29 and 6.1.30 of the IPA.  In Weightman v Gold Coast City Council (2003) 2 Qd R 441, the Court of Appeal held mandatory, rather than merely directory, the requirement of s 4.4(5A) that:

“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.”

(There is no reference to bring in the Town Planning Schedule in (a).)

1. In an appeal such as the present, the court stands in the place of the local government.  It was common ground among the parties and their planning experts that the Town Planning Schedule provision relating to multiple dwellings in the Shire of Redland and the Strategic Plan provision as to population densities are related.  The Redland Shire Strategic Plan 1998 provides:

“4.2.1    Urban Residential

This designation indicates the locations of areas which are intended to accommodate the bulk of urban residential development within the Shire.  Whilst it is anticipated that the principal form of housing will be single family detached dwellings, provision has been made to accommodate other forms of residential development including integrated small lot housing, dual occupancy and multiple dwellings up to a maximum density of 60 person per hectare.”

The site is included in the Urban Residential designation in Strategic Plan mapping.  The Town Planning Scheme for the Shire of Redland includes the provisions contained in a “Schedule” gazetted on 20 February 1998.  Part IV – Performance Standards, in Division 2 (General Requirements in Relation to Development) provides in s 8 in respect of Multiple Dwellings  that, in respect of any multiple dwelling (after the appointed day):

“(b)for the purpose of establishing the maximum number of dwelling units to be permitted on a site in accordance with the relevant Development Control Plan the population density indicated on the relevant Development Control Plan shall be divided by the population density defined for the type of dwelling unit and then multiplied by the site area in hectares.

(c)a multiple dwelling shall not be erected or converted from an existing building on a site which has an area of less than eight hundred (800) square metres excluding any access strip or easement or an average width of loss than twenty (20) metres except as permitted by a Development Control Plan or the provisions of a Local Planning Policy prepared for this purpose.”

1. It may not be correct or logical to apply population density requirements expressed in terms of hectares to specific sites but there is no possibility of applying them otherwise.  (The provisions were moved from the Schedule to the Strategic Plan in 1998.)  According to the Interpretation section of the Town Planning Scheme, the notional population density where a site is used for a number of dwelling units assumes 2.4 persons per dwelling unit if there is more than a single room capable of being occupied as a bedroom, but only 2 persons per dwelling unit if there is only one such room.  Considered as two dwelling units, the development would be regarded as generating a population density of 4.8, that is 1.2 in excess of what a site area of 600 m² should normally support at 60 persons per hectare; there is an excess of 0.6 of a person per dwelling unit.  If there are four dwelling units, the 4.8 changes to 9.6 persons, which is considerably in excess of the density favoured.  It is a somewhat artificial exercise to focus on notional population densities in such a location as Point Lookout, which is full of holiday makers for up to four months of the year, and at other times considerably quieter.  I doubt there exists any practical means of preventing people from jamming their accommodation full of friends and acquaintances at certain peak times.  There is force in Professor Beck’s argument that, particularly at such times, the impact of the same development may be considerably greater, if it incorporates four dwelling units (“habitable rooms and other spaces used or intended for use as a self-contained domicile”) rather than two: neighbours may have to put up with the party noise or music emanating from four sources, not just two.  Extra vehicle parking may be required, not just as a matter of practice, but by reason of town planning provisions. 

1. Nothing appears to have been done to alleviate the concerns expressed in the Council’s letter of 27 July 2002.  The family areas on the lower habitable levels have double sinks, and appropriate plumbing.  Items such as refrigerators and microwave ovens or other cooking equipment could easily be brought in, permitting food preparation; there appears to be ample bench and cupboard space to facilitate that.  The only feature of self-contained living not present would be laundry facilities, which could not be incorporated without some further application.  I would think there would be people or households prepared to do without full laundry facilities for a short stay at Point Lookout.  Against the self-evident proposition that the proposed building is adapted to use as four separate dwelling units (two without laundry facilities) are the developer’s protestations as to what is “intended” (relevant under the Schedule definition of dwelling unit in terms of “spaces used or intended for use as a self-contained domicile”) and the not insubstantial consideration that, in each of the dwelling units said to be intended to be used as one, if it were used as two, there would be a loss of privacy, in that a person moving between the family room at the front and the bedroom/bathroom area at the rear of the site, for example, to go to the bathroom, might encounter someone using the stairs to get to or from the dwelling unit upstairs.  There may also be security problems if doors to the front or back parts were left unlocked, because of common access.  Such considerations provide no guarantee that members of independent households might regard themselves as sufficiently compatible to be untroubled by such conflicts.  The appellants hardly need “characterisation” authorities such as J.N. Venn Pty Ltd v Brisbane City Council (1995) QPLR 11. Unusually, the Planning Scheme contains a definition of “intended for use”:

“Intended for use – means constructed, designed, equipped, or adapted for use or otherwise reasonably capable of being put to use.”

The question here does not fall to be resolved solely in terms of the developer’s evidence about intended use, but objectively.  The 4 dwelling unit interpretation cannot be excluded here. 

1. Does the 800 m²/20m frontage requirement apply in the DCP Area?  The Town Planning Scheme, in the form provided to the court, which is stamped “Not an Official Version”, dates from 1988, but contains amendments up to 24 April 1998.  The 800m²/20m requirement has been there in some form since 1988.  The present section 8(b) and (c), set out above, were not originally there, but were in place before the DCP;  they envisage that a DCP may provide for different arrangements.  If a pre-existing DCP permitted use of smaller or narrower sites for multiple dwellings (or greater population density), it is difficult to see how a subsequent Shire-wide provision of general application could override the Point Lookout DCP.   However, as the DCP came later, in 1996, the issue depends on what is “permitted” by the DCP. A specific aspect of the topic is dealt with in the DCP in:

“4.4.10  Development on Rear (battleaxe) Allotments

Purpose of Control 

·To maintain the residential character of the locality.

·To protect residential amenity.

Control

·The number of dwelling units on a rear (battleaxe) allotment shall not exceed:-

i.         two (2) dwelling units, or

ii.one (1) dwelling unit per 500m² of site area excluding the area of any accessway or easement.”

I would construe this as cumulative controls, so that, whatever its size, a rear or battleaxe allotment must not contain more than two dwelling units, and if there are to be two, there must be at least 500 m² of available site area for each of them.  Some, but not a lot of attention was paid to 4.4.10 during the appeal.  Its effect is to add to whatever restrictions the Town Planning Scheme may place on multiple dwellings, by requiring in effect 1,000m² of available site area before the Permissible Development of Multiple Dwelling in the applicable Island Residential Precinct may be pursued.  Although this happens in relation to special sites only, it is hardly consistent with an intention to relax the 800m² requirement generally.  If there were an intention to relax it generally, one would expect to find that expressed.  (The DCP has its own definitions in s 2, none of which is relevant upon this issue.  The ones there apply “notwithstanding any other definition or provision of the Town Planning Scheme ... unless the context otherwise indicates or requires.”  For present purposes, the Town Planning Scheme definitions are applicable.  They are prefaced by the same acknowledgement that the context may require a different approach.)

1. There are some considerations which may be thought to make it odd that the 800m² limit applies to Point Lookout.  The court was told that the single Island Residential Precinct established by the DCP has amalgamated what were formerly Residential A and Residential B Zones in a single Residential Precinct or Zone.  One would expect some allowance to be made for multiple dwellings and it is.  The Intent in 4.1 says that the “existing residential areas as well as areas designated for future residential development ... will cater primarily for single buildings and multiple dwellings in a detached form.”  In 4.2 – Table of Development, Dwelling House is a Permitted Development subject to conditions in Column 2 and Multiple Dwelling is a Column 3 Permissible Development requiring consent of Council to be pursued.  4.3  Preferred Development Form says that:

“This precinct is the principal residential precinct for the locality’s permanent and holiday population.  It is intended that development take the form of detached individual dwelling units interspersed amongst the area’s vegetation.  Development in the precinct is consequently to be undertaken in a manner which is sympathetic to the natural environment in terms of site disturbance, building materials and colours, site landscaping and the size and location of building elements on individual allotments.

Building forms are to be low rise in nature and limited in mass and bulk and height.  Whilst single and multiple dwellings may be interspersed with one another in this precinct, it is intended the size and height of individual building elements be limited to a level consistent with the vegetation retention objectives.  Buildings, ideally, should be designed to follow the contours of the land, and to be 2 storeys or less in height above ground level.”

Site Coverage is dealt with in 4.4.4

“Purpose of Control

·To prevent buildings dominating the natural landscape;

·To allow for landscaping and to control building massing;

·To maintain natural seepage of water to water table;

·To encourage development of a character sympathetic to the existing Point Lookout township

·To maintain solar access and privacy.

Control

·     Building site coverage is not to exceed 30% of site 

area.  Refer  Diagrams 4.1f and 4.1g

·     Site coverage limit may be achieved by the

construction of more than one detached building.

·     The site coverage of any single detached building is

not to exceed 150m² when the building height is not

more than 4.5m above natural ground level, 140m²

when the building height is over 4.5m above natural

ground level.

·   Garage and carports shall be taken into account

when calculating the percentage of a site covered

by buildings.

Diagram 4.1f

SITE COVERAGE – SINGLE DWELLING
MAX. 30% OF ALLOTMENT AREA
MAX. INDIVIDUAL BUILDING SITE COVER

- UP TO 4.5 m IN HEIGHT – 150m²

- OVER 4.5M IN HEIGHT  - 140m²

Diagram 4.1g

SITE COVERAGE – MULTIPLE DWELLINGS

MAX 30% OF ALLOTMENT AREA

MAX. INDIVIDUAL BUILDING SITE COVER

- UP TO 4.5m IN HEIGHT – 150m²

- OVER 4.5 m IN HEIGHT – 140m²”

The following section deals with boundary clearances.  There are Controls of 6m minimum setback from the road alignment, side boundary clearances of 1.5m and rear boundary clearance of 2m for any structure 4.5m or less above natural ground level in height and 3.5m for anything higher.  It also provides that “detached buildings on the one site are to be a minimum of 6m apart.  Such buildings, however, may be linked by one unenclosed verandah or walkway.”  The purpose of the Control is “To allow for landscaping and To encourage development of a character sympathetic to the existing Point Lookout township, to maintain solar access to buildings, to maintain privacy, and to maintain relationships between detached buildings on the site.”  In 4.4.8, carparking requirements (1 covered car space per unit for resident parking, Council having a discretion to require visitor parking to be provided) are the same for multiple dwellings and dwelling houses. 

1. Although the introduction to the DCP bemoans that previous planning arrangements “did not adequately provide for the conservation of the existing natural environment, or the retention of the locality’s inherent character” and development strategies which “promoted forms of development which had the potential to significantly alter the character of the township, with the consequential loss of the charm of the existing settlement,” and proclaimed that it “establishes a more appropriate approach to the management of development within the township”, it should not be seen as an anti-development document.  The introduction asserts the DCP represents “an approach to development management in the township directed towards ... (inter alia) allowing for growth in the less constrained areas of the town.”  The seven key development principles (1.2) include “prevent township sprawl, ensure that future development is in character with the existing township, to cater for the needs of increased tourism and visitor demand through a range of accommodation types and standards [the Shopping, Business and Mixed Use Precinct and the Tourist and Accommodation and Facilities Precinct would seem particularly relevant here], to ensure that the natural development and visual character ... are not compromised by the built environment and to diversify the local economy and provide for economic activity.” 

1. The number of sites in the Island Residential Precinct containing 800m² or more is a matter of disagreement.  The court has insufficient information to resolve it at the present date, or, which is more important at the moment, as at the time of adoption of the DCP.  Mr Natoli considers the number of 800m² blocks to be of the order of 118, Professor Beck puts it close to 200.  The average block size is considerably less.  Further, most of the 800m² blocks are in the more recently developed Tramican Street area, considerably removed from the beach.  The Point Lookout Development Control Plan Study of November 1994, Exhibit 26, was referred to principally for the purposes of identifying the character of the Headland Area, Central Area and Tramican Street Area.  The Study cannot control the meaning of the DCP, but it is interesting to note what it had to say regarding the site’s former Zone:

“6.3.2    Residential ‘B’ Zoning

Residential ‘B’ zoning is intended to cater primarily for multiple dwelling although individual houses and other uses are permitted with Council consent.  Mot of the older ‘core’ areas are designated Residential ‘B; as a means of encouraging replacement by attached holiday units.  The following planning controls apply to dwelling houses:

·Allotment Area          450 square metres minimum

·Height  2 storeys

·Frontage  12 metres minimum

·

Density  150pph, or 100pph west of            

  

George Nothling Drive

Planning controls for multiple dwellings are as follows:

·Allotment Area          800 square metres minimum

·Height  2 storeys

·Frontage  20 metres minimum

·

Density  150pph, or 100pph west of

  

George Nothling Drive

As allotments average 730 square metres in the zone, it would be generally necessary to amalgamate parcels to achieve multiple dwellings.  The zoning is therefore generally incompatible with existing ownerships.  Further concerns are the loss of historic character should multiple dwelling development overtake the older precincts and the possible incompatibility of existing houses with townhouses and apartments.”

The DCP’s preference for detached (rather than attached) dwellings where there is a multiple dwelling proposed is clear.  What remains mysterious is whether, the anomaly of the 800m² requirement having been noted, the DCP, without mentioning the matter, abolished it.  In other contexts, minimum area and frontage requirements were set:  see 13.2.  One view is perhaps as good as another.  It strikes me as poor planning to adopt a DCP which is silent regarding this issue, one which is obviously of crucial importance to the future character of Point Lookout.  I am required to decide, and accepting the strangeness of a planning regime in which most potential multiple dwelling sites would be found in the Tramican Street area, and only a relative handful where developer-owners are more likely to want to establish multiple dwellings, I would conclude that the DCP has not “permitted” multiple dwellings on sites where the Town Planning Scheme does not permit them.  It is unsurprising that developers in possession of a copy of the DCP may come to think of it as an exhaustive statement of the development controls applicable at Point Lookout.  I do not think that it is.  If the court’s view of the applicability of the Schedule is not shared by the Council, as the planning authority it is well placed to use statutory procedures to get to its view enshrined in the planning documents in express terms.  The process of adopting an “IPA-ised” planning scheme presently underway offers a golden opportunity.  (One might add that the importance of the lot size issue to the character of Point Lookout in the long term would indicate the wisdom of a clear “legislated” rule.)  

1. Whatever the Council’s understanding in the matter (in the appeal it has contended that the 800m² /20m requirements do not apply in the DCP Area), it has permitted many multiple dwelling developments on sites smaller than 800m² to go ahead, many since the DCP came into effect.  (Some of these are offensive “attached dwellings”.)  Mr Natoli has identified about 45.  The present Development Application may be regarded as much more sensitive than its predecessors which enjoyed success, because of the site’s location, which makes the way it presents to the outside world unusually important, and the cost to neighbours of reducing or taking away their views (of beach and sea) dramatically different.  Unfortunately for the neighbours, there is no such thing as a right to a view (Aldred’s case (16 11) 9 Co.Rep. 58; discussed at 9 ALJ 360, 361 and see Baalman, No Easement for Prospect 16 ALJ 126.) This is not to say that the DCP may not leave it open to the Council or the court to have regard to impacts on views.

1. Mr Traves is apparently correct in his submission that the Council does not apply the 800m² provision to the DCP Area, or has not done so historically.  It does not follow that the Council is correct.  The DCP prevails over the Strategic Plan and the Town Planning Schedule to the extent of any inconsistency, but, in my view, there is no inconsistency in relation to the 800m² requirement.  (For purposes of DCP 1.5, I do not think the DCP provides any relevant “amplification” of the Strategic Plan in relation to population density.)  As to the Council’s “discretion to determine the matter” in the event of ambiguity or where it is unclear what controls apply in the DCP Area, nothing in the material before the court relating to what the Council has done in past applications indicated any awareness on the Council’s part that it was exercising such a discretion.  Although the Council deliberately exercised another discretion, the site area issue, having been raised at the outset, disappeared without trace.  There is no limit of any decision having been made about it.  I do not accept that such a discretion can be exercised unknowingly.  In any event, it is something to be determined in relation to particular Development Applications on a case by case basis.  That the Council may have exercised its discretion favourably to the co-respondent in this one in no way commits the court.  Mr Traves urges on the court the “desirability of consistency”; the co-respondent will be entitled to feel unfairly done by if not treated in the indulgent way in which other developers have been.  The other side of it is that the appellants, who have been moved to assert their interests in relation to the present application, are entitled to pursue their interests within the law, and to appeal the Council’s decision.

Are there planning grounds to overcome conflict?

1. No one contended that the conflict thus identified of the Development Application  with the Town Planning Scheme and the conflict identified with the Strategic Plan Population Density provision (which I am inclined to think is the greater conflict, rather than the minimal one, as the co-respondent has not persuaded me that the 4x2 bedroom  unit analysis is wrong) meant the application must inevitably be refused.  Planning grounds may be established to justify its approval, notwithstanding the conflict(s).  The flexible approach embodied in s 6.1.2(3) of the IPA is applicable.  The Council followed it here.  To be noted is the comment of Pincus JA in Vynotas v Brisbane City Council 112 LGERA 206, 212 that “It does not appear to me that the Legislature intended by the language used in Chapter 6 of the 1997 Act, to make the provisions of Transitional Planning Schemes absolutely binding, in the decision of Development Applications.” Further, the DCP contains in s 14:

“DISCRETIONARY PROVISIONS FOR THE CONSIDERATION OF INNOVATIVE AND SENSITIVE DESIGNS

14.1Where applicants believe they have a desirable solution to a specific site which achieves compliance with the objectives of the Development Control Plan but fails to comply with the development standards the following additional information shall be submitted:-

14.1.1A Site Analysis Plan (at scale of 1:100 or 1:200)

...

14.1.2Site Development Plans

Site Development Plans incorporating both a site layout plan and elevation plans at a scale of not less than 1:100.  In addition to submitting site development plans for the proposed development, the applicant shall also be required to submit site development plans for a hypothetical design which complies with all development standards applicable.

14.1.3Written Statement of Compliance.

A Written Statement of Compliance – any such application shall be accompanied by a written statement demonstrating how the proposed design achieves compliance with the objectives of the Development Control Plan and the purpose of each of the Development Standards applicable within the relevant Precinct.  The detailed written explanation shall also illustrate how the proposed development achieves a more sensitive and desirable design solution than if it were to comply with each of the relevant development standards.  The person making the statement shall be nominated.”

The importance of an applicant’s demonstrating compliance with s 14, established by Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390; [2002] QCA 277, led to considerable expansion of the evidence of Mr Natoli at the last minute, which was a principal factor in extending the number of days required for hearing of the appeal.

1. Generally speaking, I am in agreement with Professor Beck that the proposal represents over-development of the site, an attempt to crowd too much on to it.  That said, Mr Natoli deserves the plaudits ultimately accorded by the Council.  He has found a way to provide two four bedroom (or four two bedroom) units side by side on a narrow site so that from the front rooms and decks/balconies spectacular sea views may be obtained.  Because of the narrowness of the site, the units share a party wall, one being east of it, the other west.  They are mirror images of each other.  In an attempt to meet the expectation of the DCP that multiple dwellings be constructed detached, rather than attached, Mr Natoli has (he says) provided a separate building in which the bedroom/bathroom and like areas are provided, again mirroring each other by the site of the party wall.  Because of the sloping site, the height at the rear (where the minimum setback is availed of) is not much more than 5 metres, the effective control being the requirement that the floor level of the upper storey at the front be no more than 5.1 metres above natural ground level.  A cut into the site will permit the creation of a single car garage and a storage area underneath each of the units, these separated by an “entry court” – so as to give the appearance (and a reality) of a three storey building at the front.  There was much disputation as to whether Mr Natoli has designed two buildings or one.  Ultimately, his argument, and that of the experts called in this case who agreed with him, was that there were two buildings because that is how a person moving along Cutter Street would read the development. 

1. The Control in 4.4.5 of the DCP requires detached buildings within a site to be “a minimum of 6 metres apart.”  That requirement is met at the eastern and western extremities of the development, although Professor Beck disputes it and is probably correct if roof separation is looked at; but the slim east-west shape of the rear building broadens out to include at both levels and on each side of the party wall an additional bedroom (with two single beds illustrated), “robe” and separating hall.  These features cover more than half of the supposed 6 metre separation.  In justification for disregarding the Control, it is said that the purposes identified are satisfied.  Be that as it may, that part of the Control permitting detached buildings to be “linked by one unenclosed verandah or walkway” is exceeded.  Each unit has its own linking walkway at ground level (paved or tiled) backed by the party wall and necessarily roofed from the verandah above, and able to be closed by sliding sections of a timber batten wall of some kind - for “security” - and an upper level connection.  Each of these connections may be more open at the side, but is backed by the solid masonry party wall and roofed.  The walkways, which lead to the halls mentioned, are about 2.5 metres wide; the roof extends a further 2.5 metres on either side, producing a total width of 10 metres.  It is continuous with the approximately 14 metre wide roof of the front “detached building” at the back, it fits under two smaller roofs atop the respective master bedrooms of  two units, where an aggregate roof width of about 14 metres is again encountered.  In my opinion, whether or not the linkages are “unenclosed”, as to which opinions differ, and whether or not ground-level walkways are included, there are two verandahs, separated by the party wall.  Neither has anything to do with the other.  One could not without a great deal of trouble get from one to the other.  There is non-compliance with the condition relied on to permit linking of detached buildings.  No one could seriously suggest they are “a minimum of 6m apart”, if there are two detached buildings; to my way of thinking, that is a requirement that no point can be identified at which they are closer than 6 metres.  For present purposes, I accept Mr Ure’s and Mr Traves’ submission that the DCP diagram 4.1h (read with the Schedule definition of “building envelope”) and diagram 4.1g indicate that measurements of separation are made from wall to wall, rather  than between rooflines; further, an ordinary person estimating separation of buildings would probably direct attention to walls, rather than roofs.

1. While the party wall serves to create two verandahs, it also serves, in my opinion, to create a single building.  It does not matter that the party wall effectively separates what is on either side, and that each side has its own staircase, leading from its garage and entry court to the ground level walkway and thence the verandah at the rear of the front building.  That wall is integral to the structure of the whole development and fatal to its claim to be two buildings, in my opinion.  The conclusion that there is a single building is reinforced by the relatively massive roof, relieved only by the separate raised sections at the back.  It may be the case that, especially with planting in them and beyond them to the boundary, the two courtyards east and west in the middle of the development will conduce to an impression being given to persons in Cutter Street that there are two buildings, a front building and a back one.  Again, reliance is placed on the stated Purpose of the Site Coverage Control in 4.4.4 (set out above).  I am unpersuaded that this DCP is satisfied by developments giving the appearance of complying when, physically, they are something else.  “Trompe l’oeil” architecture may have its place, but it is not here.  No one beside, behind or above the building would be deceived for a moment.  Mr Buckley, the Council’s planner, was correct in his view that the proposal should be assessed as a single building. 

1. I agree with Professor Beck’s analysis of the way in which to apply the DCP definition of Site Coverage, namely:

“Site Coverage” -        the proportion expressed as a percentage which the area of a site covered by buildings bears to the total area of the site, where the area covered by buildings is measured to include the area within the projection of the outer limits of the buildings onto a horizontal plane, provided that such measurement shall not include:-

a.any building or structure or part thereof included in a landscaped open space area (e.g. gazebo, small garden shed, shade structure);

b.roof overhangs or sun hoods, or parts thereof which do not extend more than 2.5 metres out from the wall of a buildings;

c.private balconies, which are not covered by, or do not cover private habitable rooms, and which are accessible only from one dwelling unit.  Where any part of any such balcony is more than two point five (2.5) metres out from the wall of the balcony, that part shall be included in he site coverage measurement;

d.verandahs, covered patios, building linkages and other covered areas which in total have a combined area of less than 5% of the allotment area.”

As set out in paragraphs 7.2.3ff of his report:

“7.2.3    The purported site cover is composed of:

i)           Bedroom Wing:  68.0m² (11.37%)

ii)          Living Wing:  80.2m² (13.41%)

iii)Two private balconies off the bedroom wing of which no part of either is more than 2.5m from the wall and therefore qualify for exclusion ‘c’

iv)        Stairs (roofed and semi-enclosed):     17.4m² (2.91%)

v)          Decks off Living:  37.5m² (6.27%)

7.2.4.  The proposed development is not two buildings, but one.  This is the view of Council officers:  ‘for planning purposes ... the building on the site ... a single structure’  (see: A7.12.1 below), and it is the contention of this report (see 7.3 below).  On this basis, the double stairwell connection the two ‘wings’ of the building are also part of the building and need to be counted as such when calculating site coverage.

7.2.5     On the other hand, the decks off the living areas come under the definition of ‘verandahs, covered patios, building linkages and other covered areas (the decks off living area)’.  Together these decks have in total a combined area of 6.27% of the allotment area.  This is greater than 5% and therefore does not qualify for exclusion order ‘d’ of the site coverage definition.

7.2.6  Based on the applicants’ own site coverage areas, the total site cover is then calculated to be 203.1m² (33.96%), which is well in excess of the permitted site cover of 30%.  The proposed development does not comply with the Site Coverage Development Standard and is, consequently, an over-development of the site.”:

He went on, more argumentatively,

7.2.7      The Proposed development is in ‘intent’ not two, but four multiple dwellings (see:  4 above, and 7.3 below), requiring four covered car parking spaces (see: 9 below).  The s.4.4.4 Site Coverage Control requires: ‘Garages and carports [ie: ‘covered’ car spaces] be taken into account when calculating the percentage of a site covered by buildings’.

7.2.8     In the proposed development only two covered car spaces are included in the site coverage calculations.  To comply with s.4.4.8 Car Parking Requirements, two additional covered spaces need to be included; and their area (approximately 15m² each minimum) added into the total site coverage area.

7.2.9     When the proposed development is viewed as four multiple dwellings (which is the ‘intent’ of the design) and minimum sufficient covered car parking included, the total site coverage increases from 203.1m² to 233.1m² (39%).”

1. I agree with the suggestion in Mr Reynolds’ evidence (at p 380) that the definition incorporates a “carrot and stick” approach encouraging small balconies, in some kind of quest for harmony with “traditional” island development, where balconies or verandahs (no-one could helpfully elucidate the distinction) were few and far between, or small, by excluding them from site cover calculations, provided they are small, but including them wholly where they exceed the benchmarks.  Mr Natoli’s approach was that the exemptions could never be forfeited, however large structures might be: only the excess over what the definition encourages had to be accounted for in site coverage.  He accepted ( p 362) that he treated c and d in the definition of Site Coverage as operating cumulatively.  The manner in which they are intended to operate is a difficult question.  In the end, I reject that approach, and rule that the two aspects are to be dealt with separately, so that exclusion of an area under one of them does not carry across when the other of them comes to be applied..

1. In respect of height, where the limit is 8.5 metres above natural ground level, the proposal may be seen as sensitive.  It goes some distance to preserving views of neighbours from behind.  On the basis of photo montages prepared by Mr Natoli, from the rear balcony of Los Nidos, there will be a view across the roof of sea at the horizon, and a good deal more to be seen at the side, including island views, but not extending as far down as at present, to a view of waves and some sand.  If the building were moved towards Cutter Street, that would improve the views.  As it is, the height at the front is some 400 millimetres below the 8.5 metre level, at the rear 3 metres below.  The building could be made even lower, in particular by a deeper cut at garage level, which would be possible if Council allowed relaxation of the ordinary maximum, which is being taken advantage of.  The appellants’ difficulty in this area of the appeal is that the Control the DCP has deemed appropriate, to the extent it talks of protecting or “sharing” of views, is a building height limit of 8.5 metres.  There is further such reference in the Multiple Dwelling Code ( Ex 18) applicable in Redland Shire generally.  Whether this so-called “policy” has application in the DCP area was a matter of contention among the parties.  I see no need to resolve the issue here. 

1. So far as number of storeys is concerned, the DCP, throughout, contemplates buildings of one storey or two storeys.  Exceptions are rare.  One is for whale-watching towers, in the interests of keeping up an island feature; these may rise to 9.5 metres.  Another permits three storeyed buildings within the Tourist Accommodation and Facilities Precinct, in return for reduced site coverage.  See 6.4.4.  In the Shopping, Business and Mixed Use Precinct: the preferred development form is “two storey structures, with shopfront business located at ground floor level facing the street, and with residential and/or commercial office uses being generally located at first floor level.”  The acceptability of three storey residential buildings, a considerable number of examples of which can be found, was said by the co-respondent to flow from diagrams 4.1b and 4.1e in the DCP, which illustrate, under the heading Site works, presumably acceptable solutions for sloping sites.  Voids below ground floor level are indicated to be tolerated within a maximum of three metres (floor of first habitable level) and in the former diagram, a cut and fill, which arguably illustrates a usable area for storage of a vehicle or other things or purposes such as recreation, appears to be shown.  It is not shown as closed off.  While it may seem perverse to preclude the more effective use of voids which are indicated to be acceptable by closing them off, this does produce the appearance of a third storey, which is undoubtedly at variance with the character of Point Lookout, and of the enclave in particular, as conceived of by the DCP, notwithstanding that it might be harmonious with the suburban character which has been let into Cutter Street.  To permit this three storey development to go ahead would be to build upon changes to the character which the DCP acknowledges, condemns and, for the future, seeks to proscribe.  From a legal point of view, the Council’s approving similar developments elsewhere is immaterial.  At bottom, the reason for the developer’s wishing to create the third storey is that the site is simply not big enough to accommodate all the features that are planned, conformably with the planning requirements.

1. It is the front of the proposed building which will impact on the character and amenity of Point Lookout, and the enclave in particular, so that it is appropriate to treat it as three storeys, notwithstanding that the rear “building” and the back of the front one are two storeys.

Landscaping, Vegetation Retention, Screening

1. One issue ventilated was the appellants’ complaint that the proposed development does not make adequate provision for landscaping the site and for screening of the proposed development.  The screening requirement is for reducing the impact of the development when viewed from outside, rather than to provide privacy.  The relevant control is established in s 4.4.1 of the DCP:

“Vegetation Retention

Purpose of Control

·     To protect land from erosion;

·     To maintain native flora and fauna;

·     To screen buildings;

·     To maintain scale and character of streetscape.

Control

·     Existing indigenous vegetation is to be retained over a minimum of 30% of each allotment.  On all allotments vegetation is to be retained in the building setback area, in the first instance.  (Refer Control 4.4.5:  Boundary Clearances.)  Vehicle access strips may be provided in the setback zone.  On cleared allotments or allotments where the percentage of indigenous vegetation falls below the 30% criteria due to development activities, vegetation is to be reinstated to the extent that 30% of the allotment is planted with indigenous vegetation.  Refer Diagram 4.1a below.

Diagram 4.1a

LANDSCAPE – VEGETATION RETENTION

VEGETATION TO BE
RETAINED OVER 30%         

OF SITE AREA.   R
PRIORITY TO BE   O

GIVEN TO RETENTION   A

IN BUILDING SETBACK   D  

AREAS.

SETBACK
  AREA

·     Species to be used for landscaping are to be selected from the indigenous species listed in Schedule 1.

·     No vegetation is to be removed prior to the commencement of construction without Council approval.

·     Landscape plans are to be submitted with applications for development approval for accommodation units and multiple dwellings showing existing and proposed landscaping, including type and maturity of species, extent and construction of hard landscaping, details of outdoor furniture and lighting, colours and materials and drainage provision.  Landscape plans are to incorporate measures intended to reduce bushfire hazard.”

1. The importance of the Control may be thought to be indicated by its being listed first among the Development Standards for the Island Residential Precinct.  It is confirmed by the approach of the Court of Appeal in the Stradbroke Island Management Organisation Inc case [2002] QCA 277. I understand the appellants’ case to be that, while the perimeter of the property is to be generously planted (the site is effectively fully cleared of indigenous vegetation at present), the proposal is non-compliant because the 30% requirement is not met in the front setback. While that is a generous one, parts of it will be occupied by driveways (permitted) and parts by absorption trenches to deal with sewerage disposal on site for the next couple of years. There is also a complaint that indigenous vegetation species have been selected which are or will not grow tall enough. The salt-laden breezes close to the coast, which tend to inhibit growth, are a special feature here.

1. There are issues to be worked out in the implementation of this Control.  These will include matters to do with the thickness and height of planting.  Is there to be room allowed for children to play?  If the 30% requirement is met (as it is here, overall), one would expect that, in practice, suitable landscaping arrangements could be worked out by the Council and the developer, and that the Council would adopt a sympathetic approach to needs of the development for particular features such as provision of sewerage trenches, which will be temporary only.  I cannot see why, assuming the trenches preclude planting while they are in use, a condition could not call for planting once they are no longer being used.  Issues to do with selection of species are no doubt easily resolved. 

1. The significant matter calling for the court’s determination is the appellants’ assertion regarding location of the 30% area.  There is uncertainty as to whether “building setback area” in the Control refers to the front alone, a possibility supported by Control 4.4.5’s referring to “clearances” on other boundaries.  Diagram 4.1a shows trees on all sides of the building envelope, the widest at the front, which is marked “setback area” but not, in my opinion, in a fashion which indicates it is the only setback area.  A note on the diagram states:

“priority to be given to retention in building setback areas” –

indicating there is more than one such area.  Use of the expression “priority”, like the expression “in the first instance” when the Control is expressed in words, rather than diagrammatically strongly suggest that this is intended to be  a flexible control.  Related to this topic is the import of the Control’s Purpose to “screen buildings”.

1. The appellants’ evidence and a view which the court had at Point Lookout confirm that in extensive parts of it, residential development nestles almost hidden behind tall native vegetation.  I cannot say this was particularly noticeable around the fishing settlement of older “rude” (in the sense of basic or modest) seaside houses.  I find it difficult to accept the appellants’ apparent contention that what the DCP intends is that future development should be hidden from view by screens of vegetation.  The Australian Concise Oxford Dictionary defines screen as “hide partly or completely.”  I think the only commonsense interpretation is that either suffices.  Partial screening softens the effect of the built form and will make an effective contribution towards establishing “grain”.  Total hiding of buildings, on most sites, would not be achievable, given the acknowledged requirement for driveways.  Occupants of buildings which cannot be seen from outside because of screening are necessarily denied the pleasure of unrestricted views out.  A tension exists here with such indications as the DCP contains about sharing views.  There is a clear recognition in the DCP that views are important, reflected in other planning documents of the Shire such as the residential Code for Multiple Dwelling Development Design Element 2 in P 5 and A 5.1 (page 10).  It was established in the appeal that there are owners at Point Lookout who have deprived themselves of spectacular sea and headland views by retaining thick vegetation (an approach I personally have some sympathy with); I suspect that the ordinary person who is fortunate enough to be living or staying in a place offering spectacular views of the kind that Point Lookout offers aplenty would prefer a view unobstructed by vegetation, or a view obstructed (enhanced?) only to a limited extent.  Past planning practices have allowed the development of a (now bemoaned) phenomenon of houses and multiple dwellings obviously designed to maximise views.  I think there is some risk of a “theme park” appearance if the DCP is to be implemented so as to require new development to be almost invisible behind mini-forests of native vegetation.  Visitors to Point Lookout unfamiliar with the requirements of the DCP might tend to conclude that the complying owners who develop or redevelop are peculiar or reclusive, refusing to engage in the ordinary way with the Point Lookout community.  Here, screening of the extreme kind called for by the appellants would certainly not maintain scale and character of the existing Cutter Street streetscape; there is presently no such screening.  I am far from belittling the DCP’s Control, which, applied generally, may well have admirable effects.  In this instance, assuming appropriate conditions and compliance with them, and some clarification of species (which Mr Natoli acknowledged to be necessary), I do not think there is conflict with the DCP in this regard.

DCP s 14

1. The situation is reached, however, where, within 14.1 of the DCP the proposal is seen to fail to comply with development standards without the court’s  getting into amenity and character considerations at all.  It has excessive site cover (since it must be considered as a single building – as the co-respondent’s planner, Mr Reynolds concedes in his report Ex 1 para 7.2.17, being almost 40m² over the benchmark for a single building of 140m²); while not exceeding the 8.5m height limit, the proposal offends the limitation to two storeys.  It is not necessary to the court’s resolution of the matter, but I think there should be added an excess of population density, whether that be regarded as flowing from the Strategic Plan provision or the Town Planning Scheme area/frontage provision.  Getting away from notional population densities, the proposal incorporates eight bedrooms, which might accommodate 16 people.  A further problem, which is not being relied on in my resolution of this appeal, is that on the 4 x two bedroom unit scenario, parking provision is inadequate.  (The Council has required the provision of the visitor car park on driveways.)

1. It was accepted by all parties that the effect of s 14 is to provide a basis on which the Council may permit non-complying development.  I would take it that 14.1 requires that the applicant’s belief that the proposal achieves compliance with the “objectives” of the DCP be well founded.  The objectives are not identified but, applying the approach of Davies JA and Mullins J in Stradbroke Island Management Organisation Inc para [77],  they are identified in 1.3:

“1.3      Purpose and Aim

The purpose of this Development Control Plan is to regulate and guide development in the Point Lookout locality.  It designates land uses for the DCP Area, outlines a preferred strategy for pedestrian and vehicular movement and specifies controls for development.

Its aim is to provide for the appropriate and orderly development of the township and to ensure that the natural environment and character of Point Lookout is maintained.

4.1Intent

This precinct includes existing residential areas as well as areas designated for future residential development.  These designated areas will cater primarily for single dwellings and multiple dwellings in a detached form.  Certain non-residential uses may be established providing they are compatible and would not affect the amenity of surrounding residential areas.

…”

Their Honours said:

“More sensitive” appears to mean more visually sensitive and “desirable” appears to mean more desirable as a design solution giving effect to the objectives of the DCP and the purpose of each of the relevant standards.”

1. 14.1.2 appears to invite the applicant to present plans for any kind of development.  Thus the court, through Mr Natoli’s statement Ex 5 and attachments, has been provided with more than went to the Council: hypothetical Plan 1B for two detached dwellings (not linked in any way), hypothetical Plan 2 (a single two storey two unit multiple dwelling) and hypothetical Plan 3 (a large single dwelling).  I suppose it is inherent in such exercises that the applicant would be tempted to present the most “insensitive” complying designs, with maximum height, minimum boundary clearances in particular.  It would be simple enough to redesign the hypothetical plans to show more consideration for neighbours, but this is not the purpose of the exercise, which simply requires compliance.  Professor Beck contended some of the hypothetical plans did not comply, but this tended to relate to matters easily attended to, such as vegetation retention/reinstatement.  He and Mr Natoli were at times in agreement, at times not, as to the latter’s assertions in Exhibit 5 as to “why Approved plans (are) more desirable and sympathetic.”

1. 14.1.3 is not entirely harmonious with 14.1.2, it does not invite comparisons with any old hypothetical.  It invites comparison of the proposed development with all its features with the situation if “it (italics added) were to comply with the relevant development standards.”  See para [17] in the President’s reasons in the Court of Appeal, where her Honour added that:

“if the developer does not meet that onerous test, then the proposed redevelopment does not comply with the DCP 3.  That test is not met by showing another complying development would be a less sensitive and a desirable solution but must address the compliance of the development the subject of the application.”

The alternative possibilities available to the developer under Vynotas and s 4.13(5A)(b) of the P&E Act were then noted.

1. Hypothetical Plan 3, while it may give the individual appellants cause to reflect on the ultimate outcome they would most prefer, appears to be irrelevant either to the s 14 exercise or (since it does not seem to me to raise any “planning grounds”) to the “alternative possibilities”.  The other Plans are relevant, depending on whether the proposal is assessed as two detached dwelling units (the form of development the DCP clearly prefers) or as attached dwelling units. 

1. The attached version is, as one might anticipate, introduced as located at the back of the site, producing maximum interference with the individual appellants’ views.  However, this form of development would be very good news for the site’s neighbours to east and west, if they cared about their outlook in the other direction.  That is so notwithstanding the oft-repeated threat that trees grow and cut off views (probably not as great a factor in places like Cutter Street, where salt-laden winds tend to stunt growth).  From the point of view of public users of Cutter Street, this hypothetical plan, offering a relatively extensive (doubtless vegetated) front yard would be seen as sensitive and desirable.  These matters were the subject of intensive attention on the last day of the appeal, when Mr Natoli was recalled by Mr Traves, so that Mr Quinn could explore with him in further cross-examination in detail the views which Professor Beck had put earlier in the day.  The judgments called for are difficult to make.  There are many public and private interests to consider, including those of potential occupants of the site, in view of their own proper interests in respect of amenity and views.  In the end, I am unpersuaded that the proposal is either more sensitive or more desirable.  This is for many reasons, and I think it sufficient to identify only the main one which relates to “grain” and character and the like: the proposed building is simply too big, far in excess of what the DCP envisages for Point Lookout (whatever may be the size of the site).  This flows from its being a three storey building, and a 180m² (or thereabouts) building.  Mr Natoli’s clever attempt to create an illusion of two small buildings is relevant, and helpful to his company’s case, but does not, in the end, carry the day. 

1. The co-respondent’s case under s 4.13(5A) is even less meritorious.  I do not find any “planning grounds” which justify approving the application despite the conflict with the Strategic Plan and the DCP.  That hypothetical plans may be devised which illustrate a “worse” development involving no such conflict is not, in my opinion, a “planning ground” the court should entertain, if it is a planning ground at all.  The appeal should be allowed and the co-respondent’s development application refused.