Kentbrock Pty Ltd v Gold Coast City Council

[2003] QPEC 20

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Kentbrock Pty Ltd v Gold Coast City Council [2003] QPEC 020
PARTIES:	KENTBROCK PTY LTD Appellant v GOLD COAST CITY COUNCIL Respondent
FILE NO:	722 of 2002
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:
DELIVERED ON:	29 May 2003
DELIVERED AT:	Brisbane
HEARING DATE:	7 & 8 April 2003
JUDGE:	McLauchlan QC
ORDER:	Appeal refused
CATCHWORDS:
COUNSEL:	Mr J Faulkner for the appellant Mr R Litster for the respondent
SOLICITORS:	H W Litigation for the appellant McDonald Balanda & Associates for the respondent

1. This is an applicant appeal against the decision of the respondent to refuse a development application for a material change of use of the subject land. 

1. The land is located at 28 Ashmore Road, Bundall and has a site area of 506m² with a street frontage to Ashmore Road of 15.53m.  The land is flat and rectangular in shape, with a low-set dwelling constructed on it.   Dwelling houses to the south of the subject land address and gain vehicular access from Coogeen Street.  Adjacent properties, and properties to the east and west in Ashmore Road address and gain vehicular access from Ashmore Road, as does the subject land.  Two allotments separate the subject land from the roundabout at the intersection with Upton Street to the east.

1. The land has a “Detached Housing” Preferred Dominant Land Use designation under the Strategic Plan, and is included within the Residential Dwelling house Zone of the Transitional Planning Scheme.  Across Ashmore Road to the north, an area generally bounded by Ashmore Road, Bundall Road, Crombie Street and Racecourse Drive contains a mix of uses on land included in the Special Facilities, Commercial and Commercial Industries Zones.  On the southside of Ashmore Road there are 61 allotments in the Residential Dwelling House Zone between Bundall Road and Village High Road.  Thirty-three of the allotments have been granted consent approvals under Column 3 of the Table of Development of which 24 are for “home occupations”.

1. The area on the northern side of Ashmore Road is of a commercial nature.  The area on the southern side of Ashmore Road (where the subject land is situated) is  residential or semi-residential in appearance.  It is dominated by a built form typified by detached dwelling houses.  Some of these are used for activities under approvals from the respondent permitting a home occupation or medical centre to be conducted.  The area to the south of Ashmore Road is of a purely residential nature without the home occupation or other activities that occur on some of the premises that front Ashmore Road.

1. Medical centres are a prohibited use in the zone, but, apart from two recent cases, the relevant approvals were given under a planning scheme in force prior to the Transitional Planning Scheme in this case. 

1. Ashmore Road is a State controlled, heavily-trafficked arterial road, dividing the commercial uses on the northern side from the mixed residential and relatively low key commercial uses on the southern side.

1. The property was purchased by the appellant in about July or August of 1997 for the purpose of housing an architectural practice known as “Forgan-Smith Architects Pty Ltd”.  Town planning consent was obtained from the respondent on 19 September 1997 for a “Home Occupation (Architect’s Office)” to be conducted from the premises.  The consent permit was subject to various conditions relating to matters such as the floor area which could be used in respect of the home occupation, the number of clientele attending the site, hours of operation and number of car parking spaces.

1. “Home Occupation” is defined in s 2.2 of the Transitional Planning Scheme to mean:

“The use of any dwelling house or its curtilage for an occupation or profession where:

(1)the person carrying on the occupation or profession lives permanently in the dwelling house; and

(2)not more than one person, other than the person who lives in the dwelling house, is employed or otherwise engaged in the conduct of the occupation or profession; and

(3)does not involve the display of goods, whether in a window or otherwise; and

(4)the provisions of s 12.3 of this Scheme are complied with; and

(5)the development is licensed as a home occupation under the provisions of the Council’s by-laws.

………………………………………………………………”

1. Mr Forgan-Smith, who is a director of the appellant has five people comprising himself, his business partner, and three employees, working at the property.  Two of the employees work part-time.  The secretary works from 9.30 am to 1 pm Monday to Thursday.  The other part-time employee is an architect-draughtsman who works three days per week.

1. Initially Mr Forgan-Smith did reside at the property in compliance with the requirements of the Planning Scheme.  However he subsequently left the premises to reside elsewhere for personal reasons, and because of the lack of residential amenity which the premises offered.

1. On 13 February 2002 the respondent issued a “Show Cause Notice” for a breach of the conditions of approval in relation to the use of the premises.   It appears that the major complaint in the notice was that no-one was living in the premises.  In response to that notice a development application was submitted to Council by Land Plan Australia Pty Ltd on 20 March 2002.  The application on behalf of the appellant was for a Material Change of Use for a “Design Studio.”  I accept that the application should properly be regarded as one for use of the premises as “Commercial Premises (Architect’s Office/Studio)”.  Public notice of the application was given but no submissions were received.  On 19 July 2002 the respondent resolved to refuse the application for reasons stated as follows:

“1.The application fails to comply with the intent and objectives of Council’s Strategic Plan.

2.The application has failed to demonstrate any “planning merit” which warrants support of the proposal irrespective of the conflict of the development with the provisions of the Strategic Plan.

3.          The application fails to comply with the intent of the Residential Dwelling House zone and relevant provisions of the City of Gold Coast Planning Scheme 1994.

4.          The proposed car parking arrangements are insufficient in terms of quantity for the proposed development, fail to accord with the Gold Coast City Council Local Planning Policy No 1 – “Off-street Vehicle Parking Requirements” – and conflict with the requirements of s 4.2.1.2 of the City of Gold Coast Planning Scheme 1994.

5.          The application is considered likely to generate adverse impacts upon adjoining residents and the desired residential amenity of the surrounding area.”

The respondent does not now contend that the proposed use “is the source of identifiable adverse impact on the amenity of adjacent dwellings.”

1. Under Ch 6 IPA the respondent’s 1994 Planning Scheme is a “former Planning Scheme”, and despite the repeal of the P & E Act it continues to have effect subject to the two qualifications expressed in s 6.1.2 as follows:-

“(2)If a provision of a former planning scheme is inconsistent with chapter 3, to the extent the provision is inconsistent, chapter 3 prevails, unless this chapter states otherwise.

(3)A prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”

1. The provisions of a former planning scheme that are not inconsistent with ch 3 comprise the Transitional Planning Scheme for the relevant local government area, by virtue of s 6.1.3(1).

1. Section 6.1.28 provides that all development applications for assessable development, made after the commencement of the section to which a Transitional Planning Scheme applies, must be made and processed under IPA, and that if the application in question were one under the repealed Act, and would have required public notification under that Act, then the application must be processed as if it were a development application requiring impact assessment.  Sections 6.1.29 and 6.1.30 respectively, apply for the part of the assessing aspects of development applications to which a Transitional Planning Scheme applies, and for the part of the deciding aspects of a development application to which a Transitional Planning Scheme applies.

1. With respect to assessing a development application requiring impact assessment s 3.5.5 does not apply and instead, to the extent that they are relevant to the application, the Transitional Planning Scheme and the Transitional Planning Scheme policies apply as well as the matters stated in s 4.4.(3) of the P&E Act (in the case of an application which under that Act would have been required to be made under s 4.3(1).)  Other matters, including the common material for the application and all State planning policies apply in the same way.

1. Under 6.1.30 in the case of a development application requiring impact assessment, s 3.5.14 does not apply for deciding the application, and instead in a case where the application would have been required to be made under the repealed Act pursuant to s 4.3(1) of that Act, the assessment manager must decide the application under s 4.4(5) and (5A).

1. “Impact Assessment” is defined in IPA to mean the assessment of –

(a)        the environmental effects of proposed development; and

(b)        the ways of dealing with the effects.

1. “Code Assessment” is defined in IPA to mean the assessment of development by the assessment manager only against the common material and applicable codes (other than codes, or parts of codes, a concurrence agency is required to assess an application against).

1. Section 3.5.5 IPA provides, however, that in the assessment of an application requiring Impact Assessment the assessment manager must carry out the assessment having regard, inter alia, to the Planning Scheme and any other relevant local planning instruments.

1. Section 4.4(3) of the P&E Act requires the assessment of a rezoning application to consider a number of matters including traffic, amenity, the balance of zones in the planning scheme area, and the situation, suitability and amenity of the land in relation to neighbouring localities.  More importantly, sub-s (5A) provides that the application must be refused if –

(a)        the application conflicts with any relevant strategic plan or development control plan; and

(b)        there are not sufficient planning grounds to justify approving the application despite the conflict.

1. The Strategic Plan which is part of the respondent’s Transitional Planning Scheme falls within the definition contained in s 1.4 of the P&E Act and is relevant for present purposes.

1. A planning scheme under the P&E Act had the force of law, including the planning scheme provisions for the regulation, implementation, regulation and administration of the planning scheme, the zoning maps and any regulatory maps.  However, it was subject to amendment by the relevant local government and, on appeal, by this court, in response to a re-zoning application, and a seemingly untrammelled discretion was conferred upon the local government for that purpose, except where conflict with the Strategic Plan could be identified.  The court, however, recognised in a number of cases that it was not the planner for the local government area involved, and exercised its discretion in relation to an application to amend the Planning Scheme with due respect for the provisions of that Scheme.  In a case where conflict was found between the proposed development, including a change of use, and the Strategic Plan, the discretion referred to was narrowed, in terms of s 4.4(5A).

1. Since the Planning Scheme as a whole is one of the matters that must be applied in assessing an application such as the present it is necessary to consider, not only the Strategic Plan but also the other provisions of the Transitional Planning Scheme including planning scheme policies: Vynotas v. Brisbane City Council [2001] QCA 24; Grosser v. Council of Gold Coast [2001] QCA 423; Weightman v. Gold Coast City Council [2002] QCA 234. Regard must also be had to any other matter to which regard would have been given if the application had been made under the repealed Act: Section 6.1.29(3)(i) IPA.  This will therefore bring into account the planning instruments or policies which are close to adoption by the respondent.  There is a Draft Planning Scheme for the City of Gold Coast which has been publicly advertised.  It appears that it is likely to be adopted in June of this year.  (That scheme, however, does not include a Strategic Plan as such.  Indeed, there is nothing in Ch 2 IPA which contemplates a discrete part of a planning scheme in the form specifically of a Strategic Plan, unlike the position which existed under s 2.1 of the P & E Act; a consequence, presumably, of the abandonment of regulation by zoning in the current legislation.)

1. The subject land and the area generally to the south of Ashmore Road is included within the “Detached Housing Preferred Dominant Land Use” (PDLU) designation.  On the northern side of Ashmore Road land is included within the “Mixed industry and Commercial” PDLU designation.  The Detached Housing PDLU designation is stated in s 1.3 of the Planning Scheme as follows:

“The maintenance of residential amenity is a major priority for the Council in relation to detached housing areas.  Residents of such areas have consistently expressed the view that residential development should be mainly restricted to detached housing.  Accordingly the preferred dominant land use is detached housing on individual allotments.  This form of development facilitates a wide range of domestic activities, including gardening, private recreation and the keeping of pets.

Other development may include townhouse development, integrated housing and aged persons’ accommodation subject to such development being at a scale and density compatible with detached housing.  A very limited range of non-residential development which is either ancillary to residential development or directly serves the convenience needs of the local neighbourhood may also be appropriate in some locations.

Development in these areas will be required to accord with the provisions applicable to the Residential-Dwelling house Zone.”

1. The first objective stated in relation to detached housing is:-

(a)        to maintain the amenity and low density character of detached housing areas in line with the expectations of residents.”

1. This is elaborated in the following words:-

“In order to maintain a high level of residential amenity and a detached housing character, the Council will only favour proposals for development which are complementary to and compatible with dwelling houses.  The provisions of the planning scheme relating to site coverage, development density, building height, on-site open space, car parking and landscaping will set standards for all development which further ensure the maintenance of amenity and character.  To its own programs the Council will progressively improve streetscapes and the safety of residential roads.”

1. Clearly the present application is not one for detached housing on an individual allotment, or a townhouse development, integrated housing or aged persons’ accommodation.  To come within the designation then it must respond to the description of – “a very limited range of non-residential development which is either ancillary to residential development or directly serves the convenience needs of the local neighbourhood.”  The term “ancillary” is defined in the Scheme to mean – “necessarily associated with a particular development but incidental to that development.”  Plainly the use proposed for the subject property in this case does not fall within that definition.  Nor, in my opinion, can it reasonably be said that that use serves the convenience needs of the local neighbourhood.

1. There may be cases where discrepancies can be identified between a development proposal and the relevant Strategic Plan which are so minor that one would not be obliged to conclude that they amounted to a “conflict”.  However, in this case, there seems to me that there is a sharp and clear conflict between what is proposed and the provisions of the Strategic Plan.

1. It is a common place that the court pays regard to planning instruments which have not yet come into effect but which have proceeded substantially along the path to adoption by the local government concerned and full status as planning instruments of that local government: (the “Coty principle”; cf. s.4.1.52(2)(a) IPA).  This, however, is done, in my view, in the exercise of the broad discretion enjoyed by the local government and the court in considering an application for amendment of the planning scheme, or in current terms, an application for a material change of use, a discretion which is exercised with due recognition of the fact that the court is not the planning authority for the area concerned.  That approach does not appear to me to be appropriate in ascertaining whether there is a conflict between a proposal and the Strategic Plan in accordance with the requirements of s 4.4(5A) of the P&E Act.  That is a section which deals specifically with any relevant strategic plan or development control plan and in my view those expressions are to be construed in accordance with their definitions in the Act which require that the documents conform with ss 2.4 and 2.5 respectively and be approved by the Governor-in-Council.  What has been referred to in this case as a “Draft Strategic Plan”, even if it were otherwise a relevant document, does not come within that definition.  The only Strategic Plan falling within the definition is the Strategic Plan which forms part of the 1994 planning scheme.

1. To avoid a mandatory refusal of the application under s 4.4(5A) there must be identified “sufficient planning grounds to justify approving the application despite the conflict”.  Whether or not planning grounds are “sufficient” it is not something which lends itself to logical demonstration, but rather involves the formation of a judgment on the part of the decision maker, in this case the local government.  Such a judgment is, no doubt, reviewable, but is likely to withstand scrutiny if it was one that could reasonably be reached, that is, that it fell within the limits of the discretion exercisable by the local government in making the judgment in question, and the local government has not brought into account irrelevant considerations or failed to take into account relevant considerations.

1. There is no definition of the expression “planning grounds” but some assistance with respect to its meaning can be gathered from the definition of “town planning” which is defined to include all matters necessary or expedient for securing the improvement, orderly development, healthfulness, amenity, embellishment, convenience, conservation or commercial advancement of an area or a part of an area.” 

   
   
   

1. Whether or not there are sufficient planning grounds to justify approving the application would depend upon the nature and extent of the conflict, and the weight that can be given to such planning grounds as can be identified as relevant to the application.

1. The planning grounds submitted by the applicant as relevant to the application for a material change of use are as follows:-

(a)        The proximity of the site to the commercial precinct on the opposite side of the road;

(b)        It presents as an attractive transition from busy Ashmore Road and the commercial uses on the northern side of Ashmore Road, to the residential uses in Coogeen Street;

(c)        It also offers a buffer to the houses in Coogeen Street from the impact of Ashmore Road and the commercial district on the northern side of Ashmore Road;

(d)        The use proposed and the outcome of that use is consistent with the objects of community safety which has planning merit for the community and is a stated objective in the Council’s Draft Planning Scheme;

(e)        It adds to the streetscape and provides a practical use to what may otherwise result in a regularly untenanted property;

(f)        The fact that there are no negative aspects is a positive planning ground supporting approval.

1. Generally, I find the respondent’s submissions to the contrary persuasive.  These are:-

(a)        The physical proximity of the land to intensive commercial and retail development on the opposite side of Ashmore Road was a matter that existed when the land was included in the Detached Housing PDLU and the Residential Dwelling House zone;

(b)        The existing building used as a residence or for the approved home occupation will also transition or buffer residential development in Coogeen Street from impacts associated with Ashmore Road and the intensive commercial and retail development on the northern side of that road;

(c)        There is no proper basis to conclude that the existing building used as a residence or for the approved home occupation could not be appropriately designed and landscaped so as to integrate into the streetscape;

(d)        Mere absence of impacts from, or objections to, the proposed development are not so persuasive as to require the court to ignore the longstanding, formally adopted and published planning approach of the Council.

1. Similarly I do not consider that the aspect of community safety, which has to do with the absence of a front wall to the property, or the suggestion that, as a residence, the property may be regularly, untenanted, represent by themselves, or in combination, a planning ground or grounds sufficient to justify the clear conflict with the Strategic Plan.  I also think it is wrong to say that the absence of negative amenity effects is in itself a “positive planning ground supporting approval”.

1. It was submitted that the respondent had departed from its planning intent under the 1994 Scheme on two recent occasions.  The first related to the approval of the use of land at 6 Ashmore Road as a car park and the second was the use of premises at 194 Ashmore Road as a medical centre.  Reference is made to authorities to the effect that the court may depart from the planning intent of a local government if the local government has itself so departed, or the subject land has been given a designation that was and remained “invalid”: Beck v. Council of the Shire of Atherton [1991] Q.P.L.R 56; Grosser v. Council of Gold Coast (supra).  In Beck, which was concerned with provisions in a Strategic Plan, Quirk DCJ said:- 

“There may be cases where a departure from the Strategic Plan could be justified; where, for example, the planning strategies which it represents, having been overtaken by events (or for some other reason), clearly no longer have any application; or where it can be demonstrated plainly the land has been given a designation on [a] basis that was and remains invalid.  One would expect such cases to be rare and I am far from persuaded that this is one of them.”

I think it is necessary to be careful in applying this dictum in view of the facts that that appeal was heard and decided before the P&E Act came into force on 15 April 1991, and that s.4.4(5A) was inserted in that Act by the Local Government (Planning and Environment) Amendment Act of 1992. 

1. In this case it is pointed out in opposition to the above contention that with respect to 6 Ashmore Road there was a lack of available on-site car parking on the adjoining property forcing visitors to park on both sides of Coogeen Street, creating conflicts with local traffic and impacting upon residential amenity.  There were, therefore clear planning grounds which could be regarded as sufficient to approve the development notwithstanding the conflict with the Strategic Plan, those grounds relating to traffic and residential amenity.

1. The use of premises at 194 Ashmore Road as a Physiotherapy Practice again involved a conflict with the Strategic Plan and in fact inconsistent recommendations were placed before Council with respect to the application.  The site was identified as an infill site adjoining two Child Care Centres and adjacent to a long existing Shell Service Station.  There was also identified a need for proximity to Pindarra Hospital.  Again these were matters which arguably provided planning grounds sufficient to justify the approval of the application despite the conflict with the Strategic Plan.

1. Arguably, a departure by a local government from the intent of a Strategic Plan may constitute a “planning ground” in that it may indicate that relevant policy is no longer accurately reflected in the provisions of the Strategic Plan, but the sufficiency of such a planning ground for the purposes of s. 4.4(5A) will depend upon the reasons for the departure and whether similar or equally sound reasons can be found in the application being considered.  I am not satisfied that any such reasons have been advanced in the present case.  Nor do I see any basis upon which it might plausibly be contended that the designation of the subject land is “invalid”.

1. It is not contended that planning grounds which may support the proposal for the purposes of s 4.4(5A) can be identified with respect to other parts of the 1994 Planning Scheme.  The provisions with respect to car parking and landscaping are referred to above in the first objective for the Detached Housing PDLU designation, and it is not in dispute that there is not full compliance in this case with Council policy in respect of those matters.

1. The subject land is included within the Residential Dwelling House zone and the intent for that zone is stated at s 4.3.1 of the Planning Scheme which reads (in part) as follows:-

“The intent of this zone is to implement the objectives of the Detached Housing PDLU in the Strategic Plan.  It is intended therefore to provide for the development of detached dwelling houses in an almost exclusively low density residential environment.  All residential development with the exception of dwelling houses, dual occupancy dwellings, aged persons accommodation, townhouse development and integrated housing as well as most non-residential development will be excluded from this zone.  The purpose of these restrictions on development is to provide residents with an assurance that their chosen residential area will remain free from unwarranted intrusion by incompatible development.  All development within the Residential Dwelling House zone will be subject to provisions which seek to ensure a pleasant, low density living environment.

Permissible development is restricted to townhouse development, integrated housing and aged persons accommodation at densities compatible with low density dwelling house development as well as non-residential development which may be compatible with and complementary to residential development.”

1. For the purposes of the relevant table of development the proposed use in the present case falls within the definition of “commercial premises” which is a column 4 (prohibited development) use in the Residential Dwelling House zone.

1. In the Draft Planning Scheme the subject land is included within the Detached Dwelling Domain.  The following planning intent for the Detached Dwelling Domain is stated in the Draft Scheme:-

“The purpose of this domain is to provide for low density residential areas that consist predominantly of low-rise, detached dwellings, in a garden landscape, that are well serviced in terms of urban facilities and transport.  It is intended to preserve and enhance the suburban character and residential amenity of these low density residential neighbourhoods.

This domain also seeks to enhance and promote the residential lifestyle attributes of privacy and quiet enjoyment of family life, with opportunities for residential based leisure pursuits.  Key objectives include:-

(a)providing for some variety and dwelling size and style, within the context of a relatively homogenous residential

environment;

(b)providing for extensive areas of both private and public open space and promoting the landscaping of these areas to achieve a green and attractive residential environment and to contribute to the city-wide landscape character themes;

(c)providing for a limited range of home based activity where the scale and intensity of the activity will not impact on the high level of residential amenity expected within this domain; and

(d)facilitating home-based business activity where this has no adverse impact on the residential amenity of the neighbourhood.”

1. The Table of Development for the Detached Dwelling Domain includes section A: Material Change of Use as is the case with all domains in the draft planning scheme.  In this regard the scheme provides (cl 4.7, page 2 of 5, Part 5, Chapter 1 section 2):

“All uses, included in Section A: of the Table of Development, may be considered as appropriate for the domain to which the Table of Development applies, subject to each use meeting the relevant assessment criteria.  Any use, not listed in Section A of the Table of Development should be considered as undesirable or inappropriate in the domain to which the Table of Development applies...”

The uses listed in Section A of the Table of Development for the Detached Dwelling Domain do not include any use which corresponds to or includes the use sought by the appellant.  It follows, as the respondent contends, that that use should be considered undesirable or inappropriate in the Detached Dwelling Domain. 

1. The appellant derives no assistance from these provisions.  Nor is it assisted by what is referred to as the “GHD Desktop Study” being a study in relation to development in the Ashmore Road area, but which has not acquired any present actual or persuasive status as an expression of Council policy.  I find that there is conflict between the application and the Strategic Plan and that there are no sufficient grounds to approve the application despite the conflict.  The appeal is accordingly refused and the respondent’s decision confirmed.