Jensen and Bowers Pty Ltd v Redland Shire Council
[2003] QPEC 44
•21 August 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Jensen & Bowers Pty Ltd v Redland Shire Council [2003] QPEC 044
PARTIES:
T H JENSEN & BOWERS PTY LTD
Appellant
v
REDLAND SHIRE COUNCIL
RespondentFILE NO:
Appeal No 15 of 2003
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
21 August 2003
DELIVERED AT:
Brisbane
HEARING DATE:
31 July 03 and 1 Aug 03
JUDGE:
Robin QC DCJ
ORDER:
Appeal allowed
CATCHWORDS:
Appeal by developer against refusal of development application for material change of use (notional rezoning from Residential Low Density to Residential A) and reconfiguration (subdivision of 2115m2 lot into two lots) – conflict with Strategic Plan and DCP in Transitional Planning Scheme insofar as they envisaged minimum lot size of 2,000m2 – planning arrangements intended to protect amenity of a “homestead” of some heritage significance including mature vegetation – such intention largely frustrated by subsequent approval of subdivision of “homestead lot” into three lots, one of which was the subject site – whether planning arrangements overtaken by events – general area has gone over to Residential A – relevance of destruction of trees in defiance of vegetation protection order – sufficient planning grounds (overcoming inefficiency of Low Density zoning/designation for land having full urban services) to justify approval of development application notwithstanding conflict Integrated Planning Act 1997 s 4.1.50(1), s 6.1.2.(3), s 6.1.29, s 6.1.30 - Local Government (Planning and Environment) Act 1990 s 4.4(3), (5) and (5A).
COUNSEL:
Mr Cochrane for the applicant
Mr Job for the respondentSOLICITORS:
P & E Law for the appellant
McDonnells Solicitors for the respondent
[1] This is a developer’s appeal against the Council’s refusal of a combined application dated 13 August 2002 for a material change of use of land at 204-206 School of Arts Road, Redland Bay and for the reconfiguration of such land by subdivision into a lot of 900m2 with a frontage to the road of 24.5m and a “battleaxe” block, essentially the rear half of the site plus a 5m wide “handle” providing access to School of Arts Road, producing an area of 1215m2. The land is lot 21 on SP 115509 Parish of Redland. The land is presently vacant, and may well have been so since cessation of operations of the Mt Carmel Orchard, historically a feature of this part of the Shire, the name and memory of which are being preserved in various ways in the locality. The material change of use amounts to a rezoning to Residential A zone from the present Residential Low Density zone.
[2] The development application having been made under the Town Planning Scheme for the Shire of Redland, which is a Transitional Planning Scheme, s 6.1.29 and s 6.1.30 of the Integrated Planning Act 1997 (“IPA”) require the Council as assessment manager, likewise the court, to decide it under s 4.4(5) and (5A) of the Local Government (Planning & Environment) Act 1990, as one governed by s 4.4(3). It is clear that sub-s(5A) requires the application to be refused in circumstances of conflict with “any relevant Strategic Plan or Development Control Plan” if “there are not sufficient planning grounds to justify approving the application despite the conflict”: See Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 at [50] and Weightman v Gold Coast City Council (2002) 121 LGERA 161 at [3], [15], and [35]. It is the appellant which bears the onus of showing the absence of such a conflict, once there is a tenable basis for identifying conflict, or the existence of “sufficient planning grounds”: IPA s 4.1.50(1), Weightman at [8] and [36], Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390.
[3] The decisions referred to establish that in determining whether “sufficient planning grounds” exist, the court, like the assessment manager, should identify the nature and extent of the “conflict”, determine whether there are any planning grounds relevant to the portions of the application which exhibit conflict, and finally, decide whether the planning grounds supporting the application “are, on balance, sufficient to justify approving the application notwithstanding the conflict” – Weightman at [36].
[4] Here, there is conflict with both the Redland Shire Strategic Plan 1998 and the Development Control Plan. The Town Planning Scheme for the Shire of Redland (taken to accord with the document stamped “not an official version” placed before the court by the agreement of the parties: it incorporates the 1988 scheme gazetted 20 February 1988 and amendments up to and including 24 April 1988) contains as Appendix 2 “Development Control Plan 1” which applies to the Shire generally, there being no other Development Control Plan. The Strategic Plan is Appendix 1.
[5] In assessing the development application, the Council has taken the view (and it now urges upon the court the view) that the appellant has failed to demonstrate the existence of planning grounds sufficient to support approval of the development application in the circumstances.
Recent Planning History
[6] The planning history of the Shire has led to the creation of what Mr Job, for the Council, called an “enclave” on the northern side of School of Arts Road of seven allotments of 2,000m2 or more, separated from Moreton Bay by two smaller allotments and one (having a water frontage) larger allotment. Those three parcels are zoned Rural/Non Urban. The Council, as the planning authority, has taken a particular interest in the “enclave” because of the location on it of what is called “the homestead”, the original residence associated with the Mt Carmel Orchard. It is an undistinguished, unpretentious timber structure, presently used as a residence. There is no external cladding to hide the vertical “tongue in groove” walls of rooms. The homestead has been maintained in good condition, with excellent paintwork; renovations are presently in progress. The homestead curtilage contained many mature trees, including tall palms. On what has become lot 21 (the site) were a couple of tall bottle trees along the boundary towards School of Arts Road, further into lot 21 two well established, tall Jacarandas and on the rear boundary a very large custard apple tree, a reminder of the “orchard” heritage. The homestead itself apparently has (and has been seen by the Council as having) heritage/historic value and as an all too rare link with and reminder of the area’s past. So far as the evidence before the court goes, the homestead has no claim to antiquity (merely being described as “pre-war”), architectural merit, or links with important people. Although the homestead is mentioned in planning documents which acknowledge its significance and the visual amenity of its surrounds, as a rare concentration of mature vegetation, no steps appear to have been taken (although some were contemplated to be taken in the past) to secure preservation of the homestead.
[7] Ms Rayment is a qualified town planner in the employ of the appellant. It is convenient to set out the “development history” of the site from s 3 of her report, Ex 2:
“3.1 In 1995, Council approved a combined rezoning and subdivision application over the land at 202-222 School of Arts Road, Redland Bay. The site the subject of the application was 1506 ha in area and included in the Rural/Non-Urban Zone. The land incorporated an area now comprising the 7 lots on the northern site of School of Arts Road including the subject site currently included in the Comprehensive Development Zone and the adjacent lots to the east and west now included in the Residential Low Density Zone.
3.2 At that time the approval allowed the subdivision of the land into five lots and an amendment of the planning scheme followed to include part of the land in the Residential Low Density Zone and part in the Comprehensive Development Zone.
3.3 As a result of this subdivision, the subject site became part of a 6,450m2 lot comprising the Mount Carmel building, then described as Lot 2 on SP 102128 and included in the Comprehensive Development Zone, while the remaining lots to the east and west were included in the Residential Low Density Zone.
3.4 The original application proposed 3 smaller lots over the area comprising the homestead, however, at Council’s recommendation (as noted in the 30 June 1998 Environment, Planning and Development Committee Minutes), the proposed lot comprising the homestead site was increased in size to 6,450m2 to ensure the potential for alternative/tourist orientated uses was not restricted.
3.5 Redland Shire Council’s submission to the then Department of Housing, Local Government and Planning dated 21 September 1995 in support of the amendment to their planning scheme to reflect the approval, identified a number of reasons for requesting the rezoning, including that ‘the proposed rezoning is a logical extension of the Residential zoning which exists to the north and west.’
3.6 At the time of the approval the site was identified in the Strategic Plan and Development Control Plan as Rural Non-Urban, however an amendment had been proposed and approved to Council to include the site in a Comprehensive Development designation for ‘tourist orientated uses or home based commercial use provided that the significant homestead, on the subject property, is retained.’
3.7 The following reasons for supporting the rezoning despite the conflict with the Strategic Plan and Development Control Plan current at that time were identified by Mr W.C. Dawson, the then Acting Director of Environment, Planning and Development (contained in a signed but undated submission to the then Department of Housing, Local Government and Planning in an application to amend the Town Planning Scheme) –
·‘Land to the north and west is zoned Residential A and forms part of the Orchard Beach Estate with approvals for Residential A subdivision right up to these common boundaries;
·Land to the east is subdivided into three allotments (two of these are Residential A in size, the other being Residential Low Density in size);
·Urban services are available to the subject land;
·Rezoning and subdivision of this property will more or less complete urban development in the precinct bounded by Moores Road, Weinam Creek, Moreton Bay and School of Arts Road; and
·Approval of the precinct need not set a precedent for further rezoning/subdivision applications on the other side of School of Arts Road.’
3.8 In addition, the Council’s reasons for requesting the rezoning included that ‘the Comprehensive Development zone is intended to allow flexibility for future land use options for the homestead on the site which is considered a potential tourist/visitor destination point in the Shire.’
3.9 One of the conditions of approval stated that ‘in giving consideration for any application for consent, Council will consider the site as being suitable for tourist orientated uses or home based commercial use provided that the significant homestead and its environs on the subject property are retained. In giving consideration to any non-residential use, Council will have regard to any potential nuisance that may arise to the amenity of any adjoining residential area.’
3.10 In Council’s Planning and Development Committee minutes dated 01/08/95 in relation to the abovementioned combined application for rezoning and subdivision, it was noted that ‘the site is not considered suitable for standard residential subdivision due to the significant vegetation on the site but may be available for low density residential subdivision provided vegetation protection measures are incorporated into the subdivision design and the ambience of the dwelling is not affected.’ The minutes also noted the reason for inclusion of the homestead site (at that time incorporating the subject site) in the Comprehensive Development zone as being ‘to take advantage of the land use benefits deriving from the intended Comprehensive Development Table of Zones.’
3.11 It was therefore clearly Council’s view at this point in time that the site of the homestead required a sufficiently large area (i.e. in the order of 6,450m2) to provide the opportunity for a tourist oriented use. Furthermore, the rationale for the Residential Low Density zoning of the adjoining lots was to protect the existing significant vegetation on the site, which has subsequently been predominantly cleared, and the ambience of the homestead.
3.12 Furthermore, at this point in time, the subject site was at the edge of a residential subdivision, with land to the south of School of Arts Road remaining rural in character. This is evident in the 1996 Aerial Photo at Attachment F. However, the reference to the 2002 Aerial Photos at Attachment D and 2003 Cadastral Map at Attachment E, Residential A subdivision has now significantly extended to the south and west of the subject site so that it is now completely surrounded by Residential A subdivision development.
3.13 Contrary to the outcome of the previous application, in November 1998 Redland Shire Council gave a Development Permit for Reconfiguration of the homestead lot of 6,450m2 into 3 lots (i.e. lots 21, 22 and 23) and Material Change of Use from Comprehensive Development to Residential Low Density for proposed lots 21 (i.e. the subject site) and 23.
3.14 The Committee Report minuted at a General Meeting of 8 July 1998 noted that the Council officer’s recommendation had been to refuse the application for reasons including that the proposal ‘does not provide sufficient area on site to accommodate the tourist/commercial use and does not provide sufficient area to buffer the commercial/tourist activity from adjoining residential land use.’
3.15 In particular, it was noted by Council officers in the minutes of the Environment, Planning and Development Committee of 30 June 1998 that ‘any further reduction of this parcel would restrict the potential to use the land for alternative/tourist oriented uses. In this regard the larger parcel is deemed to be necessary to enable the site to be used for a commercial activity and to provide adequate buffers between the commercial activity and the adjoining residential uses.’
3.16 Further grounds for the Council officer’s recommendation noted in the Committee minutes included that the proposal –
·‘Does not address vegetation protection measures in relation to the orchard;
·Does not address the ambience of the existing dwelling in relation to adjoining proposed allotments; and
·Does not address the heritage value of the site.”
3.17 A detached house has since been erected on the new Lot 23 created as part of this development approval while the subject site (Lot 21) remains vacant.”
[8] It will be noted that the Council declined to accept the recommendation from its officer(s) against approval of subdivision of the 6,450m2 parcel so deliberately created in 1995, with a view to preserving a site incorporating the homestead of sufficient size to accommodate the desired tourist oriented use (or home based commercial use).
[9] The enclave, in consequence of the Council’s November 1998 approval, consists of seven lots. Previously there had been five. The most westerly of the five, 202 School of Arts Road was acquired by Mrs Hennessy in July/August 2001. In November of that year she moved into the existing dwelling there, a single level home which may be seen as sympathetic in appearance to the homestead about 50m away. On 6 November 2002 Mrs Hennessy lodged an objection against the development application. If implemented, it will frustrate her expectations (based on advice of the selling agent and her own solicitor) that the Council would not allow two residences to be erected on lot 21. The additional residence, in her (justified) opinion, will interfere with her privacy. It must be noted that she is surrounded by Residential A on blocks half the size of hers or less, that she must put up with a total of five houses on her western and northerly boundaries; for her, the issue is whether she has one house or two on the eastern boundary.
[10] It appears an unfortunate feature of our current system that citizens in the community, generally speaking, do harbour expectations that local governments will implement existing town planning arrangements – but that there really is no sound basis for those expectations, especially in fast growing localities. By reason of the legislation, within planning schemes based on zones, zoning of land was always subject to change and a change in many instances would be for the purposes of subdivision. Now, under the IPA, (speaking broadly) a “material change of use” may be applied for in respect of most land (here, that is a “notional rezoning”) and frequently that will be accompanied by “reconfiguration” (subdivision).
[11] The parcel to the east of Mrs Hennessy‘s is lot 21 (the site), containing 2,115m2. Prior to November 1998, the parcel to the east was more than three times the area (and, subject to “granny flat” provisions) might have been expected to contain one residence only, unless something different of a tourist/commercial nature had occurred consistently with the Comprehensive Development zoning. To the east of the large homestead parcel were three additional parcels of 2,000m2 or slightly more. The two to the east of what was the large (6,450m2) homestead site remain vacant.
[12] The adverse events noted in Ms Rayment’s paras 3.11 and 3.17 are attributable to the Council’s approval in November 1998 of further subdivision of the large homestead lot. At that time, a gesture was made towards protecting the homestead and the ambience of the area immediately surrounding its truncated curtilage. According to the plan incorporated in Mr Hunt’s town planning report (Ex 4), when the enclave was five lots, the homestead lot had a street frontage of 101.264m, the other four lots each had a frontage of 33m. When the homestead lot (lot 2) was permitted to be further subdivided in November 1998, apparently eccentric boundaries were created. In the west, where preservation of a grass tennis court adjacent to the homestead (separated by a swimming pool) reduced the frontage of lot 21 to 29.5m, the area of lot 21 was increased by having its eastern boundary bend further to the east behind the tennis court. The eastern boundary of lot 22 (the homestead lot) is a dog leg, favouring lot 22 as against lot 23 (which appears to have a shorter frontage than lot 21), apparently for the purpose of creating a reasonable side boundary setback for the homestead. The large two-storey house constructed (apparently with the minimum setback from School of Arts Road) is (I think by common consent) totally out of sympathy with the homestead and dominates it, putting paid to any prospect of an ambience on the eastern side which might enhance the homestead’s touristic appeal. As noted, further to the east are two vacant blocks. Across School of Arts Road and beyond is now a vast area of Residential A development, typified by large, expensive homes on smallish allotments. It is no doubt a matter of individual taste whether the homestead in its present context is seen (as the Council sees it) as an attractive reminder of the area’s heritage or as a lonely humble abode now totally out of character with its changing surrounds.
Cutting Down of Trees on the Site contrary to UPD
[13] I take Ms Rayment in para 3.11 to refer to the cutting down of the two jacarandas on lot 21. This was done illegally, in flagrant breach of a vegetation protection order. It is unlikely in the extreme that any owner of the homestead would have perpetrated such a thing. Both trees are sprouting vigorously, exhibiting multiple new trunks of considerable thickness and height (which, unfortunately, produce nothing like the effect of the majestic trees cut down). The Council is suspicious that the owner(s) of the site (not the appellant) had something to do with the desecration of the jacarandas, but there is no proof of this, and the evidence Mr Hargrave (who has developed the land on the southern side of School of Arts Road, and was pleased to see good views to the north from his estate opened up when the trees went) suggests the deed, which he says he witnessed, was done before Mr Vink or Mr Hope (who presumably represent the developer here) became interested in the site. I am inclined to draw the inference that whoever destroyed the trees did it with a view to gaining some commercial advantage. The Council argued that, in the circumstances, the court ought to attach no weight to the absence, now, of vegetation which the Council’s planning instruments and decisions seek to preserve. While it may be that the court should be slow to reward a developer in some way privy to illegal actions which appear to have removed some impediment to a development application, I think that here it would be unrealistic, as well as unfair, to proceed as if the jacarandas were still there. (In any event, it has not been shown that, if there, their presence would generate conflict within sub-s (5A)).
Conflict with the zoning
[14] Most of what follows closely tracks Mr Job’s helpful written submissions regarding conflict:
[15] The site is included within the Residential Low Density zone as a consequence of a previous application to subdivide what is now Lots 21, 22 and 23 into those three allotments. At the time of that approval in July 1998, the land was contained in the Comprehensive Development zone. In response to Council’s concerns that further subdivision of the newly created Lots 21 and 23 could occur without appropriate controls being put in place[1], Council approved the reconfiguration by way of preliminary approval only. To “convert” the preliminary approval into a development permit, the then applicant was required to obtain a development permit for a material change of use of those parcels by way of a rezoning to the Residential Low Density Zone.[2] That “rezoning” was approved in November 1998.[3] The amendment to the Transitional Planning Scheme was gazetted on 22 January 1999 whereupon the zoning of Lots 21 and 23 became consistent with the balance of the relevant enclave, excepting Lot 22.[4]
[1]Refer Council Minutes of 8 July 1998 – Exhibit 1, Part 3, page 34 (last paragraph and following)
[2]Refer to Council’s Decision Notice of 14 July 1998 – Exhibit 1, Part 3, page 42 (last paragraph)
[3]Refer to Decision Notice of 5 November 1998 – Exhibit 1, Part 3, page 59
[4]Refer to Figure 4, Mr Hunt’s Report, Exhibit 4
[16] The intent of the Residential Low Density zone provides:
“This zone is intended to cater primarily for dwelling houses on allotments with an area of between two thousand (2000) and six thousand (6000) square metres and with all services normally provided in urban areas, including sealed roads with concrete kerb and channelling and sewerage.”[5]
The expressly stated intent regarding detached houses on allotments between 2000m2 and 6000m2 is supported by the Planning Scheme’s subdivision controls which prohibit subdivision of the land within the zone into allotments of less than 2000m2,[6] and which require a minimum frontage width of 35 metres.[7]. Pursuant to section 6.1.2(3) of the IPA, the prohibition of Lots less than 2000m2 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”.
There can be no dispute therefore that the proposal conflicts with the intent of the zone. Indeed Ms Rayment the appellant’s planner appeared to accept that a conflict existed.[8] Further, the existence of conflict established by the prohibition on lots less than 2000m2 was the very reason the Respondent required the amendment of the Scheme as a pre-condition to allowing the subdivision of the parent parcel of Lots 21, 22 and 23.
[5]Emphasis added – Planning Scheme, Part II, Division 2, section 2(6), page 15
[6]Chapter 25, Part 1, section 12(4), (page 124)
[7]Section 13(b)(i)
[8]Transcript, page 43, line 40, and page 53, line 32-40
Conflict with the Strategic Plan
[17] There is a recurring objective throughout the Strategic Plan that a range of housing choices be available to meet the needs of all of the community. That intent is contained, for example, in the Vision (section 2.0), Goals (section 2.2 – Goal 2), and Community Development Strategy (section 3.3(h)). At a more specific level, the intent of the “Urban – Residential Oriented” preferred dominant land use designation contemplates “… accommodating a wide range of housing forms and densities”.[9] It was the Council ‘s planning expert, Mr Hunt’s view that the proposal to subdivide the site into “standard” residential allotments similar to those which dominate the locality represents a conflict with the objective, by reducing the already limited choice available to the community.[10]
[9]Strategic Plan – section 4.2, (page 30)
[10]Refer Mr Hunt’s Report, Exhibit 4 page 22, (dealing with section 3.3(h))
[18] The current Strategic Plan allocates a Tourist, Business and Accommodation designation to the site, and to the 2 lots (Lots 22 and 23) immediately to the east.[11] The intent for that designation provides, in part:
[11]Refer Figure 6, Mr Hunt’s Report, Exhibit 4
“This designation indicates the location of areas considered suitable for a mixture of business development (including shops), residential development and other compatible uses which cater primarily for tourists, holiday makers and day trippers.”[12]
[12]Strategic Plan, section 4.3.7, page 40
The general intent is supplemented by a specific intent for the site and Lots 22 and 23 which provides:
“Designated area to the north of School of Arts Road, Redland Bay:
The designated area is considered suitable for tourist orientated uses or home based commercial use, provided that the significant homestead on the subject property is retained. The site is not considered suitable for standard residential subdivision due to the significant vegetation on the site but may be available for low density residential subdivision provided vegetation protection measures are incorporated into the subdivision design and the ambience of the dwelling is not affected. In giving consideration to any non-residential use, Council will have regard to any potential nuisance that may arise to the amenity of any adjoining residential area.:[13] (emphasis added).
The proposal to create a “standard residential subdivision” on the site clearly conflicts with that intent. Ms Rayment agreed from the outset of her evidence in chief that a conflict existed.
[13]Strategic Plan, section 4.3.7, page 42
[19] It was submitted by the Council that, given the similarities between the site and the Residential Low Density designated allotments in the enclave, it is appropriate to have regard to the intent of that designation, particularly as here the appellant had suggested on the basis of Mr Norling’s evidence that the Tourist, Business and Accommodation designation of the site was inappropriate. The intent of the Residential Low Density designation provides:
“This designation indicates the location of areas which are intended to cater for residents who wish to locate in a low density residential environment within the main urban settlement areas of the Shire. The principal form of development within these locations will be detached housing on large allotments of around 2000m2 and above which will require the provision of the full range of normal urban services including sealed roads with concrete kerb and channelling, underground services and sewerage. The majority of areas designated for Residential Low Density use are already developed for this purpose and are intended to remain this way to preserve their existing amenity.”[14]
The proposal conflicts with that intent. Of course, such conflicts are the whole reason for applications for change of use or “notional rezoning”.
[14]Strategic Plan, section 4.2.3, page 34
Conflict with the DCP
[20] Under DCP No 1 the entire enclave is contained within the Comprehensive Development designation.[15] That designation covers land in respect of which, according to the DCP, there is a special need for the coordination and detailed guidance of development.[16]
[15]Refer Figure 7, Mr Hunt’s Report, Exhibit 4
[16]Division 2, section 17, page 62
[21] The implementation criteria for the land with that designation specifically relate to individual locations. For the site, and surrounding land, the implementation criteria mirror the specific intent of the current Strategic Plan’s Tourist, Business and Accommodation designation for the subject site:
“(b)Designated area to the north of School of Arts Road, Redland Bay (see map sheet 12)
The designated area is considered suitable for tourist orientated uses or home based commercial use, provided that the significant homestead on the subject property is retained. The site is not considered suitable for standard residential subdivision due to the significant vegetation on the site but may be available for low density residential subdivision provided vegetation protection measures are incorporated into the subdivision design and the ambience of the dwelling is not affected. In giving consideration to any non-residential use, Council will have regard to any potential nuisance that may arise to the amenity of any adjoining residential area. (Clause 17(xxvii(b) of the DCP, page 74.)
Identified conflict with the Strategic Plan applies equally to the DCP.
[22] (There is a supplementary Table of Zones applicable to certain areas designated Comprehensive Development, including the following:
| Column II(b) | ||||
| Column I | Column II(a) | Column II(b) | Column III | Column IV |
| Location | Purpose for which buildings or other structures may be erected or used or for which land may be used without consent of the Council | Purposes for which buildings or other structures may be erected or used or for which land may be used subject to the applicant receiving notification of the approval pursuant to the administrative requirements of the town planning scheme | Purposes for which buildings or other structures may be erected or used or for which land may be used only with consent of the Council Purpose | Purposes for which buildings or other structures may not be used or for which land may not be used |
| (xxvii(b) The north of School of Arts Road, Redland Bay | Dwelling houses – where not exceeding two (2) storeys in height | No use | Accommodation Unit Caretaker’s residence | Any purpose other than one permitted in Column II or |
Those arrangements apply to Lot 22 but not at present to Lot 21, having regard to clause 17(3), which requires rezoning to “Comprehensive Development” zone of land so designated, but not so zoned, before the table has effect.)
The statutory obligation in light of the conflict
[23] Section 6.1.30 of the IPA requires that where, in a case such as this, an application was required to have been made under the repealed Act for rezoning, the assessment manager must decide the application under section 4.4, including section 4.4(5) and (5A). The principle to be applied is acknowledged in [2] and [3] above.
Have events overtaken the Planning Scheme provisions?
[24] It was part of the appellant’s case that the planning instruments with which there is conflict have been overtaken by events and are no longer relevant. The principal such events are the November 1998 subdivision of the homestead lot, and more generally the enclave’s having been surrounded by Residential A development on much smaller parcels of land. The loss of the jacarandas, which still exist as very substantial “trees” with multiple trunks sprouting, seems to me not particularly important. Other trees which merit and have protection under vegetation protection arrangements are still there; it is not shown they would preclude ordinary residential development. Fairly confident predictions can be made as to what the future holds for the enclave, indeed for that part of School of Arts Road. There is no reason to doubt Mr Norling’s evidence that use of lot 21, lot 22 or lot 23 for tourist related (or home industry) purposes is now impractical. This conclusion became much more difficult to avoid once the larger parcel which formerly included all of them was broken up. Ventures such as the suggested “bed and breakfast” or “tea room” have nothing but views across and (supposedly) walks along the relatively distant Moreton Bay to attract patronage. This part of School of Arts Road is not on the marked and well publicised South Moreton Bay Tourist Drive (see Ex 8) - although rerouting to incorporate it and Wilson Esplanade may well occur in the future. Thus the site compares unfavourably with that of the successful Birkdale bed and breakfast mentioned in evidence (see Ex 13) which has numerous attractions relatively close by, and access to public transport. It is fanciful to imagine that a single dwelling erected on Lot 21 would be constructed elsewhere than at the front of the block, with minimal set back, in order to take advantage (and minimise any future blocking) of bay views. As regards amenity of the neighbourhood, realistically, this appeal is concerned with whether or not there is to be a second dwelling behind. Mrs. Hennessy’s house is set back further, but still well forward on the parcel. The streetscape will inevitably be one exhibiting Residential A density, subject only to the impact of the tennis court and swimming pool on Lot 22. Users of School of Arts Road are unlikely to have any awareness that houses in the enclave north of School of Arts Road are parcels of 2000 square metres or more. My view is that the planning arrangements under discussion, as they apply to Lot 21, will achieve nothing of what they are intended to achieve. The reason, essentially, is that, after those arrangements were put in place, the Council allowed the November 1998 subdivision. As Mr. Cochrane pointed out, the order of events is different from that in Grosser (see para. [47]) in which local government decisions tending to undermine the planning arrangements preceded those arrangements being adopted.
[25] Notwithstanding the foregoing, the court should not lightly hold that the planning arrangements have been overtaken by events. Those arrangements are clear, and almost site-specific. There is an interesting discussion by Judge Wilson S.C. in Palyaris v. Gold Coast City Council (Appeal 723/02, 1 August 2003, Southport; [2003] QPEC …………..) of whether (as another judge had thought in Grosser at first instance) a planning scheme had been overtaken by events. That the Redland Shire Council’s planning arrangements are highly unlikely to achieve the intended result does not determine the matter of conflict, or otherwise. However, it seems to me that the weakness or absence of planning grounds to support the present arrangements, apart from their status as the current planning arrangements, tends to lighten the appellant’s task of demonstrating sufficient planning grounds to justify disregarding the conflict which Mr. Job has demonstrated.
[26] Lot 21, at present, is only slightly above the minimum area for Residential Low Density. It is one of an enclave of seven lots similar in size, the second from the west.
[27] The “conflict” here, essentially, lies in the proposed creation of two residential lots each considerably smaller than the planning arrangements for the enclave contemplate. That is a direct conflict which the court cannot overlook. The conflict has not been shown to have any additional consequences of significance. It was demonstrated by Mr. Cochrane that a “bed and breakfast” operation would still be permissible on one or both of the new lots.
[28] It was not disputed that all of the services required for Residential A zoned land were available. To the extent that negative impacts on amenity of the immediate area from the development contemplated were hinted at by the Council, none has been demonstrated. As to the Council’s argument that the loss of this 2000 square metre residential site will reduce housing options, while technically true, the point is insubstantial. A handful of parcels of that size will remain in the enclave; Ms Rayment produced a map (Ex 11) showing that in nearby areas of the Shire there are large tracts of Residential-Low Density land; it would be open to a purchaser to acquire both subdivided portions of Lot 21 if he or she wished to enjoy a large site in School of Arts Road. The enclave does not present as one of 2000m2 lots.
[29] Absence of negative impact, if it ever was so regarded, can no longer be seen as a planning ground sufficient to justify approval of an application conflicting with a Strategic Plan or DCP. See Grosser at (2001) 117 LGERA 153 at [50], and very recently, Palyaris at [38], citing Kentbrock Pty Ltd v Gold Coast City Council [2003] QPEC 020 (Southport, 29 May 2003, 722/02).
[30] Exhibit 10 consists of extracts from the Council’s Urbis Study in relation to residential development in Redland Shire, which is an area of rapid growth. The essence of the extracts in para. 2.3 Residential Provisions – Weaknesses Analysis, relevantly, is that:
“… the designation of land as Residential-Low Density that is provided with full urban services is an inefficient form of urban development.”
In other words, in the current and anticipated future conditions, it is seen as wasteful to use land such as Lot 21 for low density residential purposes. It is true that the Urbis Study was part and parcel of an exercise which produced new Preferred Dominant Land Use Mapping, in particular Figure 6 in Mr. Hunt’s report, Exhibit 4. The PDLU for Lot 21 is shown as Tourist, Business & Accommodation, along with Lots 22 and 22, but not the other four lots in the enclave, which remain Residential-Low Density. Figure 7 shows all seven lots as Comprehensive Development, a reference to the Development Control Plan, but for the moment, only Lot 22 is in that category. Both figures contemplate that land to the immediate east of the enclave, extending to the water, become Urban Residential (Residential A) with half or more of the large easternmost parcel there becoming Special Protection Area (Public Open Space).
[31] I am comfortably satisfied that Lot 21, which is ideally suited to Residential A type development, notwithstanding that the planning instruments contemplate something else, can sensibly be so developed, there being nothing against it except for the technical conflict with the planning instruments, which, in this case, achieve nothing useful. Sufficient planning grounds to justify approval of the application notwithstanding that conflict with the Strategic Plan and DCP have been made out.
[32] The court’s conclusion is consistent with the views of two town planners from whom the court did not hear, Mr. Priddle and Mr. Dang. Through a subpoena process, the appellant obtained documents from Mr. Priddle, whom the Council had approached to give a report, which documents became Exhibit 14. Those documents, in particular a “Summary Sheet – Without Prejudice”, apparently prepared by Council officers for their own signature, make it abundantly clear that Mr. Priddle and Mr. Dang felt themselves unable to provide a town planning report of the kind which the Council ultimately obtained from Mr. Hunt. Mr. Priddle’s and Mr. Dang’s views emerge to an extent; they appear to coincide with Ms. Rayment’s. I mention these matters not for the purpose of bolstering her or the court’s conclusions, but to acknowledge that, notwithstanding the cynicism occasionally expressed regarding expert witnesses as “guns for hire”, it is not unheard of for experts to refuse to advance opinions they do not genuinely hold. No criticism whatever is intended of Mr. Hunt, whose views coincide with those which ultimately found favour within the Council. Mr Hunt was not told of the Council’s difficulties in securing the services of his professional colleagues.
Application for filling of site
[33] There is an existing application before the Council from Mr. Vink in respect of operational works in the form of filling of the back part of the site, dated 26 July 2002, that is, before the application with which the court is concerned. The site falls away from School of Arts Road towards the north, conformably with surrounding terrain. There appears to have been limited filling some time in the past along the western boundary of the site, not extending as far as its northern boundary. The Council has not determined this application for operational works, but no further application or appeal has happened, the parties apparently being content to await the outcome of this proceeding.
[34] The filling applied for is substantial, up to 1.95 metres. Although the filling issue is not the concern of the court, it is merely stating the obvious to note that elevating the “natural” ground level to the extent proposed bodes to have important consequences for neighbours on three sides, who will face, potentially, a new residence at the rear of Lot 21 towering above them in a way that would not be possible but for the filling. For purposes of applying relevant height restrictions on residences, the 8.5 metre limit would be measured not from existing or “natural” ground level, but from the new elevated level, according to Mr. Job, whose assertion was accepted by Mr. Cochrane.
[35] Ms. Rayment took the other approach, which brings into question the appropriateness of the artist’s impressions of the prospect offered from School of Arts Road of two substantial residences on Lot 21. The success of this appeal must not be taken as indicating the court’s approval of a residence of the kind depicted in the artist’s impression constructed atop any amount of future fill; the elevation of a residence erected there, consequent upon future filling, would tend to impair the enjoyment by established residents of breezes, light and open amenity, and perhaps views. The court’s view that the proposal will not unduly affect the amenity of the “homestead” environs is based on the virtual inevitability of a large residence being erected close to School of Arts Road, and any second residence behind not being highly visible or dominating. It is only by a narrow margin that the court accepts Mr Cochrane’s claim that a driveway along the battleaxe handle (which will preserve an open area benefiting Mrs Hennessy) will help preserve the streetscape – equivalents on nearby streets, in my opinion, tended to be extremely obvious. A more sympathetic treatment of the new driveway may be possible.
Conclusion
[36] The development application should be approved on appropriate conditions, which the parties are invited to agree upon.
[37] The appeal should be allowed. It may be appropriate, if the Council should insist, to include a condition, as offered by the appellant, that no development more intensive than a single residence on each of the subdivided lots be constructed. The Council harbours fears that there may be an intention to apply for some kind of group title development. The Urbis Study may be thought to favour that, but the Redland Council apparently oppose it, and the appellant has no interest in it.
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