Katsikalis v Gold Coast City Council

[2002] QPEC 57

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Katsikalis & Ors v Gold Coast City Council & Anor [2002] QPEC 057

PARTIES:

STAVROS KATSIKALIS,  COREY EDWARDS and
TERESA RESTALL

Appellants

GOLD COAST CITY COUNCIL

Respondent

MELINDA WALSH

Co-Respondent

FILE NO/S:

1206 of 2001

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

 21 June 2002

DELIVERED AT:

Southport

HEARING DATE:

8, 9 and 10 April 2002

JUDGE:

Newton DCJ

ORDER:

Appeal allowed

CATCHWORDS:

LOCAL GOVERNMENT - TOWN PLANNING – CONSENT AND APPROVAL OF COUNCIL’S (DEVELOPMENT AND LIKE APPLICATIONS) – PERMITTED OR PROHIBITED USES AND RELATED RESTRICTIONS – PURPOSES FOR WHICH BUILDING OR LAND MAY BE USED – adverse submitter appeal against approval for a development permit for a Material Change of Use for a townhouse development and preliminary approval for building works – where there is conflict with the strategic plan; where there is conflict with the planning scheme and where there is conflict with the draft planning scheme

Integrated Planning Act (1997) Qld s 6.1.30
Local Government (Planning and Environment) Act (1990) Qld s 4.3, 4.4(5) and 4.4(5A)

Cases referred to:
Vynotas Pty Ltd & Anor v Brisbane City Council & Anor [2001] QCA 24
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224
Yu Feng Pty Ltd v Maroochy Shire Council & Anor (1996) 92 LGERA 41

COUNSEL:

Mr S J Restall (not of Counsel) - for the appellants
Mr B G Cronin – for the respondent
Ms M Walsh - appeared in person

SOLICITORS:

McDonald Balanda & Associates –  for the respondent

REASONS FOR JUDGMENT

1. This is an adverse submitter appeal made pursuant to the provisions of Section 4.1.28 of the Integrated Planning Act 1997 (“IPA”) against the decision of the respondent Council to approve an application for:

   (a)a development permit for a material change of use for a townhouse development (four units); and

   (b)preliminary approval for building works;

   (c)subject to conditions.

2. As the Gold Coast City Council’s planning scheme is a transitional planning scheme, the provisions of Section 6.1.30 of IPA apply, and the application must be assessed under Section 4.3 of the Local Government (Planning and Environment) Act 1990. Under IPA a transitional planning scheme no longer has binding force in relation to development and use of premises but is of persuasive relevance only: Vynotas Pty Ltd & Anor v Brisbane City Council & Anor [2001] QCA 24 per Davies J A. However, as was noted by Pincus JA in the same case, it is important to note that IPA did not by chapter 6 create a planless situation and citizens expect reasonable stability in the law’s treatment of permitted land use.  The degree of flexibility which chapter 6 contemplates does not justify failure to give considerable weight to planning arrangements as they existed when chapter 6 commenced, so far as such arrangements are required to be applied by s 6.1.29(3).

Subject Site

1. The site is located at 8 Harcourt Crescent, Southport, on 931m² of land described as Lot 8, on RP 77380.  Harcourt Crescent is a short, narrow cul-de-sac between Charlton Street and Ferry Road some 100 metres north of The Southport School and some 300 metres north of the intersection of Benowa Road and Ferry Road.  The end of Harcourt Crescent was made a cul-de-sac when Ferry Road was widened and realigned several years ago.  In the vicinity of the subject site Harcourt Crescent has a narrow, sealed pavement of some six metres between kerbs in a road reserve of approximately 16 metres. 

1. The site is located on the outside corner of a 90 degree bend in Harcourt Crescent and abuts properties in the adjoining streets of Greer Terrace and Winchester Street.  The site slopes gently from east to west and is moderately vegetated with mature trees and shrubs, none of which is of significance from nature conservation considerations.  The property is currently occupied by a single-storey detached residence, such as is common elsewhere in the street.

1. There are currently no multi-unit developments in Harcourt Crescent, although a duplex is located at the corner of Harcourt Crescent and Charlton Street.  A small commercial development is located at the corner of Harcourt Crescent and Ferry Road which fronts Ferry Road but has its car-parking area accessed from Harcourt Crescent.  The majority of surrounding development is detached housing although two townhouse developments have been constructed in Winchester Street and another in Charlton Street just east of its intersection with Harcourt Crescent.  At least one of the Winchester Street properties has resulted from the amalgamation of two allotments.  Several duplex developments have also been constructed in the surrounding streets in recent years.

1. The subject land is within the Mixed Low Density Residential Preferred Dominant Land Use (PDLU) designation in the Strategic Plan and is contained wholly within the residential duplex dwelling zone.   As such, prior to the coming into effect of IPA, it would have been necessary to make an application to rezone the subject land pursuant to the now repealed Section 4.3 of the Local Government (Planning and Environment) Act 1990. Accordingly, the provisions of Sections 4.4(5) and 4.4(5A) of that Act are enlivened.

Issues

1. The principal issues in the appeal are:

   (i)conflict with the Strategic Plan;

   (ii)conflict with the provisions of the residential townhouse zone as set out in Section 4.14 of the planning scheme; and

   (iii)conflict with the draft planning scheme.

Conflict with the Strategic Plan

1. The Objective for the Mixed Low Density Residential PDLU is described in Part 1-10 of the scheme as follows:

   “To promote the orderly development of mixed low density residential areas in a manner that is compatible with the existing development but makes more efficient use of the land.

   The Council will encourage development of these areas by permitting townhouses and multi-unit development at moderately higher densities on larger sites.  However, as significant numbers of residents may wish to retain their existing dwellings, all forms of redevelopment should be compatible with existing, well established housing.  To further ensure compatibility, development provisions will be imposed to control matters such as site coverage, height and appearance of buildings.”

2. It is intended that development in the Mixed Low Density Residential PDLU areas “will be required to accord with the provisions applicable to the residential townhouse zone”.

Provisions of the Residential Townhouse Zone

1. The Table of Development for the Residential Townhouse zone includes townhouse development in column 1 only where “in accordance with Section 4.14”.  Where the density is proposed to be increased in accordance with Section 4.14.2.2, townhouse development is a column 3 use (permitted development).  Otherwise townhouse development is a column 4 use (prohibited development).

2. Certain criteria for townhouse development in the Residential Townhouse zone are stipulated in Section 4.14.  These include:

   (a)minimum site area of 1,000m², unless the development involves the amalgamation of two lots in which case the minimum area may be reduced to 800m²;

   (b)minimum frontage of 20 metres;

   (c)maximum density of one dwelling unit per 250m² of net site area, provided that this may be relaxed to permit four dwellings on a minimum area of 800m² where the above-mentioned amalgamation criterion is satisfied.  This requirement may also be relaxed to permit a density of one dwelling per 200m² where the site has a frontage of more than 25 metres.  In determining whether or not to grant approval and in formulating appropriate conditions to any approval granted, Council is required to have regard, amongst other things, to the following:

   (i)the adequacy of existing urban services to accommodate the increased density proposed; and

   (ii)the likely impact upon adjacent development; and

   (iii)the public benefit that may accrue from any specific proposal; and

   (iv)the architectural merit of the proposal; and

   (v)the degree to which the proposal addresses matters of privacy, solar access, landscaping and topography; and

   (vi)the degree to which buildings adjacent to a road are orientated to face that road; and

   (vii)the degree to which the additional units increase repetitive building design, or result in a greater number of units attached in one building, or increase the potential for barrack-like designs, rows of buildings, excessive lengths of straight or parallel driveways or buildings, than would occur for permitted development; and

   (viii)the degree to which the proposal addresses the provisions of Section 4.14 generally; and

   (ix)the purpose of Section 4.14.2 which, it will be remembered, is “to ensure that townhouse development maintains a density which is compatible with dwelling houses and duplex dwellings and that individual developments do not dominate the character of any area”. 

3. The proposed development, being on 931m², does not conform to the minimum site area requirement of 1,000m² and does not have the nominated requirement for site amalgamation which would permit a relaxation of minimum site area.

1. The site is significantly less than the minimum frontage stipulated of 20 metres, having a frontage of only 17.1 metres. 

1. The proposed development is at a density of one dwelling per 232.75m², thus exceeding the maximum density provisions.

1. As the proposed development does not have a minimum frontage of 25 metres a relaxation of density may not be granted on this basis. 

1. With respect to the provisions relating to building set-backs (Section 4.14.4), the development does not conform to the minimum boundary set-back requirement of 5 metres for habitable rooms accessing private courtyards, as it provides only 2.39 metres to the northern boundary. The proposed development does not comply with the minimum 5-metre dimension required for private open space (Section 4.14.5.1(i)).

Car Parking

1. Section 14.2.9 of the Planning Scheme requires that visitor parking for a development be “conveniently located”.   The parking provision for visitors to the proposed development is within the basement behind a security gate.  Some doubt has been expressed, at least by Mr Grummitt, that some visitors will be reluctant to use the provided parking area and will instead attempt to park in the street. 

2. The subject site has a rather narrow street frontage and is situated on the outside of a 90 degree bend in the street.  The availability of on-street parking for visitors to the development is limited by these factors.  The problem currently exists with respect to the single dwelling on the property and is likely to be exacerbated with four dwellings on the site.  The three dwellings at number 6, number 8 and number 10 have only some 20 metres of kerbing because of the curvature of the street.  This distance must provide visitor parking for those premises as well as the three access driveways. 

1. A further relaxation is sought in respect of the driveway width with a reduction to 3.5 metres instead of the 6 metre wide driveway normally required.  Mr Grummitt suggests that there will be inadequate passing provision with such a narrow driveway leading to a basement car park which will result in greater potential use of on-street parking for visitors.

Amenity

1. The Planning Scheme envisages that single detached dwellings will continue to exist in the subject area.  Views may legitimately differ as to whether the requested relaxations to the Planning Scheme provisions identified above will result in impacts greater than the Planning Scheme envisages for acceptable townhouse development.  The question to be addressed is whether such amenity impacts resulting from the establishment of four dwelling units on a site currently occupied by a single detached dwelling are greater than could reasonably be expected in the Residential Duplex Dwelling zone.

1. There will undoubtedly be significant increases in traffic and parking levels in Harcourt Crescent resulting from the increase in density requested beyond what the Planning Scheme nominates for the area.

1. There will also be a detrimental impact of some significance (the precise nature of which cannot at this stage be determined) resulting from a podium slab being constructed over the underground car parking area.  This slab is likely to project up to 1 metre above finished ground level and will impact upon the amenity particularly of the existing detached residences on either side of the proposed development.

1. Mr Ransom, a town planning consultant who testified on behalf of the co-respondent, acknowledged that the proposed development does not meet planning scheme requirements in relation to the minimum dimension of private courtyard areas and communal landscape areas.  Nevertheless, Mr Ransom’s view was that the proposal could be considered to be appropriate, bearing in mind the overall area of recreational space, the north-facing orientation of courtyards, the area of private courtyards, and the set-back, design and outlook of the dwelling house on the site to the north.  Mr Ransom also acknowledged that the proposed development does not strictly adhere to the provisions contained within part 4.14 of the planning scheme.  However, his view was that the development has sufficient planning merit to justify its approval despite the non-compliance on the basis that it will be a superior form of townhouse development in which all car parking and vehicle manoeuvring areas will be placed underground, and which will be compatible with both original and more recent development in the surrounding area.

1. Mr Ovenden, a town planning consultant who gave evidence on behalf of the respondent, was of the view that approval of the application would not contradict reasonable expectations established by the objectives of the Strategic Plan having regard to the conversion of dwelling house allotments to townhouse development in recent years in the immediate locality.  Mr Ovenden felt that the development achieves an acceptable residential amenity outcome by providing low density townhouse development in a landscaped setting.  The development was seen to be reflective of development already existing within the immediate locality and as not significantly increasing the overall residential density of the area.  Mr Ovenden considered the development to be compatible, in housing form, with nearby existing residential development.  Although the development was not contemplated in all provisions applicable to townhouse development in the Residential Townhouse zone, it nevertheless, in Mr Ovenden’s view,  achieves the purpose of the relevant provisions of the planning scheme.

1. The opinions expressed by Messrs Ransom and Ovenden are not shared by Mr Grummitt, who gave evidence on behalf of the appellants.  Mr Grummitt noted that the proposed development is Impact Assessable within the Residential Duplex Dwelling zone and that it does not conform to the provisions pertaining to that zone in that it has a density in excess of that contemplated for the zone and does not satisfy minimum site area or set-back requirements.  Significant relaxations are required in relation to the provisions of the Residential Townhouse zone, relating to site area and frontage, density, set-backs, and private open space.  Accordingly, the proposed development conflicts with the provisions of the Mixed Low Density PDLU in the Strategic Plan in the transitional planning scheme as the development does not conform with the provisions relating to the Residential Townhouse zone.  Mr Grummitt further considers that the parking provisions for visitors will result in an unacceptable level of on-street parking which is already significantly restricted by existing street geometry.  He concludes that the increase in density above scheme limitations will result in unacceptable impacts upon the amenity of the surrounding area and upon traffic and parking levels in Harcourt Crescent.  Mr Grummit notes that a relaxation of permitted density on the subject land would conflict with the intentions of the respondent as currently stated in the draft Local Area Plan for Southport.  In relation to the construction of a podium slab as part of a basement car park, Mr Grummitt is concerned that the slab will protrude sufficiently above existing ground levels to result in unacceptable impacts upon the amenity of adjoining land owners.  Mr Grummit’s view is that the proposal is in significant conflict with various provisions of the current and draft planning schemes and does not exhibit sufficient town planning merit to justify approval, notwithstanding those significant conflicts.

1. The privacy of the neighbours to the north of the proposed development at 6 Harcourt Crescent was sought to be protected by a condition which would require the outlook from second floor windows in the two townhouses at the rear of the subject site to be obscured or screened where a direct view is available into the private open space of the adjoining property.  The extent of screening measures would be to the satisfaction of the respondent Council, having regard to Element C3 (Privacy) of the Attached Housing provisions in the Queensland Residential Design Guidelines.  Mr Grummitt expressed considerable reservations as to the effectiveness of the proposed condition.  His evidence on this point was as follows:

   “…the issue for him is that he will have four family units…peering over his fence and not one, particularly at the rear.  If someone were to develop it for a house or were to develop it for a duplex, it’s highly likely that those buildings would be situated towards the front of the block and would not be located towards the back of the block simply because the further back you take it, the longer the driveway and the greater the cost for no benefit… So, were it a residential dwelling house, it is likely to be located in a similar situation to Mr Katsikalis’s house of minimum front set-backs and his is a substantial house, so again a substantial house is unlikely to protrude much past his existing house.  What we’re talking about here is another building on the back garden again that has two family units in it looking over his fence.  I have some reservations about the screening.  They’re often used.  They probably work to a degree for the people that have the screens on their premises.  In other words, their ability to look through the screens is hampered.  It can’t be prevented because it’s still got to allow airflow and light, so it can’t be prevented… But that doesn’t change the impact on the adjoining property because in his perception he still has second-storey windows overlooking his property.  Now, whether there’s screens there or not, the screens probably make him even more concerned that someone is in behind the screen peering at what’s going on in the back yard and so the perceptions on the affected property – I don’t think it makes any difference at all and it may make it worse.  It does, in a practical sense, limit that visibility, but I think from the perception of the affected property it would make next to no difference on that person’s perception of visibility to enjoy his back garden.”

2. The views of Messrs Ransom and Ovenden are to be given due weight.  Ultimately, however, I prefer the views expressed by Mr Grummitt with respect to amenity issues, particularly as he has given deeper consideration to the cumulative effects of the matters requiring relaxation than have his colleagues.  Thus, the consequential difficulties arising from a relaxation on frontage resulting in unacceptable private open space areas and those arising from building set-back relaxation which result in problems of overlooking receive more detailed treatment in Mr Grummitt’s approach than they do in the views expressed by the other town planners.  I find the reasoning of Mr Grummit in this regard to be compelling and although I do not discount entirely the contrary views expressed by the other town planners, I accept Mr Grummitt’s evidence in concluding that the proposed development should not be approved because of the unacceptable number of relaxations required, all of which result in significant impacts upon the amenity of the area.  I agree with Mr Grummit’s view that the conflicts that the proposal has with the planning scheme are not capable of amelioration by design alone and that accordingly the development should be refused.

Planning Merit

1. There is a high level of architectural merit of the proposed development (notwithstanding the podium slab) and there can be no valid criticism of the design of the buildings, the low level of site coverage and the high level of private open space.  However, these factors, in my opinion, are not sufficient to outweigh the significant disbenefits resulting from impacts upon the adjoining sites and on Harcourt Crescent generally that the relaxation in permitted density above scheme limitations would cause.  No public benefit would result from granting such relaxations nor has any particular public need for the proposed development been identified.

Draft Planning Scheme

1. The new Planning Scheme for the Gold Coast was placed on public display on February 18, 2002 after amendments had been incorporated at the request of the State Government.  Council is required to give consideration to the provisions of the draft scheme that is now on public exhibition in its assessment of the proposal.  In this regard, the decision in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 125 should be noted. Thus:

   “It is important, in the public interest, that whilst the respondent council’s local scheme is under consideration this Court should, …, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take.  It is also important, in the public interest, that during that period this Court should, …, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.”

   Of course, it is important also not to give too much weight to this factor, particularly in the circumstances of this case where the draft scheme may well be the subject of amendment following public exhibition: Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 229 per Thomas J.

   In Yu Feng Pty Ltd v Maroochy Shire Council & Anor (1996) 92 LGERA 41 at 62 Fitzgerald P stated that:

   “Coty established no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed, and usually will be only one of the factors to be considered, although in a particular case it might be decisive.”

In my view, then, while the draft planning scheme should be recognised in so far as the relevant local area plan pertains to the proposed development, little weight should be given to this factor alone.  However, the following points are of sufficient cogency to warrant rejection of the submission made on behalf of the respondent that the draft planning scheme is completely irrelevant to this proposal.

1. The subject land falls within the Southport Local Area Plan and is designated as a Garden Residential Character Area where the “desired building form is a detached dwelling.  The development of other residential building forms, such as attached dwellings and apartment buildings is discouraged in this character area.”  The proposed use of townhouses is defined as “attached dwellings” which the Local Area Plan discourages in the subject area. 

1. The Southport Local Area Plan stipulates certain parameters of relevance to the proposed development.  Thus, accommodation density is to be a maximum of one dwelling per 400m² of net site area and accordingly only two dwelling units on the subject site would be permitted under the draft scheme.

Conclusion

1. In my view the co-respondent has failed to discharge the onus of proof which lies upon her and accordingly the appeal must be allowed.

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