Kerr v. Caloundra City Council & Ors
[2008] QPEC 39
•20 June 2008
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Kerr v Caloundra City Council & Ors [2008] QPEC 39 |
PARTIES: | PETER KERR (Appellant) AND CALOUNDRA CITY COUNCIL (Respondent) AND GARY HOLMES and MARGARET HOLMES |
FILE NOS: | 245/07 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 20/06/08 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 29/05/08-30/05/08 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Appeal dismissed |
CATCHWORDS: | Submitter appeal; detached house in low density residential precinct; whether proposal conflicts with Planning Scheme extracts particularly dealing with height; where development is beach front in area in which a number of houses have been built which exceed height designation in Scheme; whether grounds exist to justify approval in event of conflict; amenity issues and reasonable expectations of adjoining residents including the appellant. Integrated Planning Act 1997 Cases Considered: Baptist Union of Queensland v Brisbane City Council (2003) QPELR 6 GS Unit Trust v Maroochy Shire Council & Ors [2008] QPEC 18 Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] QPELR 447 Quinn v Beaudesert Shire Council [2005] QPELR 36 SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24 Spondor Pty Ltd v Maroochy Shire Council [2005] QPELR 74 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd R 273 |
COUNSEL: | Mr. Manning (for the appellant) |
SOLICITORS: | p&e law (for the appellant) |
Mr. Peter Kerr resides at 1 Karkawarri Court Buddina. On its eastern boundary, his property adjoins an existing house at 24 Pacific Boulevard and a vacant block of land with a street address of 25 Pacific Boulevard Buddina. Mr and Mrs. Holmes propose to build a large home on that land. Both properties fall within the Low Density Residential Precinct in Council’s Planning scheme and more specifically in the Kawana Waters Planning Area. The proposal is for a detached house.
It is common ground that the proposal exceeds the height designation specified in the Kawana Waters Planning Area Code and is therefore impact assessable. The height specified as a probable solution for assessable development for a detached house is 8.5 metres above ground level, whereas at its highest point above ground level, the proposed house is 11.2 metres.
The Council approved the proposal in a negotiated decision notice dated 1.10.07 subject to a number of conditions. As a lawful submitter, Mr. Kerr has appealed against that decision. Mr. and Mrs. Holmes carry the onus of satisfying the court that the appeal should be dismissed.
The subject property, which has an area of 546m², has a 20-25 metre frontage to both Karkawarri Court and Pacific Boulevard, and is elevated approximately 0.5 metres above both frontages and is retained by small rock walls. Sixteen mature Norfolk Pines are evenly spaced within the road reserves fronting the property and these trees are protected by a tree preservation order.
The land is loosely trapezoidal in shape, with its largest axis running east-west at a right-angle to Pacific Boulevard. The site falls from a high point in the northwest corner some 2 metres across the diagonal of the trapezoidal to the southeast corner.
The proposal to Council is described in Mr. Dillon’s report at 1.9 thus:
“…a detached house for Dr Holmes and his family to a maximum height of 11.2 metres above ground level, namely three (3) storeys, and a basement which has its ceiling height at about ground level adjacent to the Kerr property.
· The ground floor includes the Guest and 5th Bedroom along with a Gymnasium and Rumpus room and an attractive entrance via a suspended bridge over a water feature to be sited in the frontage setback to Pacific Boulevard;
· The first floor contains four bedrooms, including the Master Bedroom complete with a private terrace and large en-suite to the north-western rear corner;
· The second floor contains a study, kitchen, living room and indoor/outdoor dining areas which are orientated to take advantage of the northern and southern coastal aspect that the property enjoys; and
· The roof which contains four angled sections with roof pitches set at low angles of between 2 and 5 degrees;
All floors are setback 0.6 metres from Pacific Boulevard with only small areas of the roof overhang projecting into this zone at the corner of Pacific Boulevard and Karkawarri Court. Setbacks to Karkawarri Court vary between 3.9 metres and 6.5 metres.
Side and rear setbacks are progressively increased from 1.5 metres at ground and first floor to 2.5 metres at second floor level.
Vehicular access is via Karkawarri Court using a cut driveway which provides access to the basement garage.”
It is not disputed that as a response to Mr. Kerr’s original submission, a site inspection was undertaken and changes were made to the proposal designed to meet his concerns about privacy and overlooking. The proposed dining area balcony at level 2 was modified by the inclusion of an opaque glass “privacy screen” 1.2 metres high above the balcony level which was to be tilted outwards at an angle of 30º so that anyone standing on the balcony with an eye level of about 1.6 metres would have the potential for looking into Mr. Kerr’s property significantly reduced. Mr. Chenoweth thought that permanently fixed horizontal louvre screens would be a better option as a means of reducing impacts of overlooking of Mr. Kerr’s property and the developer is prepared to take this course in accordance with the hand drawn amendments to the second floor plan, depicted for example, at p.53 of Mr. Dillon’s report.
The privacy screen was the subject of condition 3 in the negotiated decision notice, and condition 5 requires removal of the northern window in the study. Condition 6 relates to a requirement that the developer provide a screen of mature native trees and shrubs as screening particularly at the south-western boundary with Mr. Kerr’s property. Mr. Chenoweth, who gave expert evidence on behalf of Mr. Kerr, was somewhat critical of this condition because of space restrictions in that area, and I will return to this topic later. Condition 7 deals with lighting on the 3rd floor balcony, and Mr. Chenoweth agrees with Mr. Mack (who is an architect and who gave evidence on behalf of the developer) that lighting concerns can be met by conditions.
At the time of the directions hearing, Mr. Kerr was representing himself and the disputed issues were notified as noise and light impacts and overlooking. Mr. Manning of p&e law was then retained, and on the first day of the hearing, he informed me that he would argue that the proposal conflicted with the planning scheme and that there were insufficient grounds to justify approval in light of that conflict. Both Mr. Williamson for the developer and Mr. Heiner were caught somewhat by surprise by this submission because none of the experts; and, in particular Mr. Dillon and Mr. Ryter (town planner for the Council) had considered this because it had not been earlier raised as a disputed issue. Very sensibly, the dispute was resolved by Mr. Dillon and Mr. Ryter considering the issue overnight and giving oral evidence on the second day.
The conflict issue focuses on s.3.5.14 of the IPA and, in a practical sense, embraces the amenity issues identified in the directions hearing.
Mr. Manning tendered a document headed up “Provisions of the Planning Scheme Relevant to the Conflict” which I accepted as a submission, rather than as a piece of evidence; and for convenience I will mark his document Ex A for identification.
s.3.5.14 provides ( relevantly, in relation to impact assessable development):
“(2) If the application is for development in a planning scheme area, the assessment manager’s decision must not –
(a) compromise the achievement of the desired environmental outcomes for the planning scheme area;
or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”
No issue arises concerning the DEO’s, and Mr. Manning’s argument focuses on what he submits is substantial conflict with the planning scheme, particularly in relation to height, and insufficient or no grounds to justify the approval.
“Grounds” is defined in schedule 10 of the IPA as meaning “matters of public interest” and does not include “the personal circumstances of an applicant , owner or interested party.”
The proper approach for the decision maker in these circumstances is that mandated by the Court of Appeal in Weightman v Gold Coast City Council [2003] 2 Qd R 441, as interpreted by a later Court of Appeal in Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd R 273.
The Planning Scheme and Relevant Extracts
The Caloundra City Plan 2004 is an IPA scheme and “performance based” and “seeks to achieve outcomes” at different levels commencing with DEO’s and moves through overall outcomes and purpose of a code, specific outcomes for a code and probable solutions for a specific outcome (1.4.7 of Part 1 of the Scheme). In accordance with 1.4.8(1)
“A probable solution for a specific purpose provides a guide for achieving that outcome in whole or in part, and does not limit the assessment manager’s discretion under the Integrated Planning Act 1997 to impose conditions on a development approval.”
In accordance with the relevant assessment table for the Low Residential Precinct at page 4.52 of the Scheme the applicable Codes are the Detached House Code and Kawana Waters Planning Area Code. Note 4 in that table provides (relevantly) that self-assessable development “that exceeds the height limits specified in (the Kawana Waters Planning Area Code) is impact assessable.”
This is an important point in this case and both Mr. Ryter and Mr. Dillon regard the ability of the assessment manager to impose conditions as a very important planning consideration in the context of this particular proposal.
It is understandable that members of the community who do not have a planning background will read reference to height limits as in some ways proscribing development above such heights. What is not well understood is that local authorities are not able to prohibit development as a matter of law by virtue of s.2.1.23 (2) of the IPA. Thus, the references to height limits in this scheme must be read in light of this fundamental provision, and in accordance with the settled law as to the proper approach to the construing of planning schemes which I set out in my judgment in Spondor Pty Ltd v Maroochy Shire Council [2005] QPELR 74 at paragraph [9] (by reference to the judgment of Wilson SC DCJ in Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] QPELR 447). With this in mind, I will now turn to the relevant planning scheme provisions that arise in the circumstances of this case.
At a city wide level, a specific outcome for development in the Low Density Residential Precinct is that it “does not exceed the height specified for the site as indicated in the relevant Planning Area Code” [5.2.3(9)] which in turn takes up specific outcomes for the Kawana Waters Planning Area Code which is (relevantly), at 6.3.2(2)(c), in these terms:
“Development in the existing urban area to the north and east of Nicklin Way provides for predominantly low density residential uses, characterised by low-rise detached houses (up to 8.5 metres in height) on conventional sized lots.”
and “(h) Development in the Low Density Residential and Multi Unit Residential Precincts provides and maintains a high level of residential amenity.”
There was some debate between Mr. Manning and the planners about the proper construction of (c) which I don’t think advances either his argument or the contrary argument put by his opponents. It is not helpful to concentrate too much on one particular provision in the scheme as it may offend the requirement to interpret schemes as a whole and may lead to a rather pedantic approach.
(c) is clearly a description of the relevant existing urban area and is one of the overall outcomes to be kept in mind when a specific proposal is being considered along with all other relevant parts of the Scheme.
At a more specific level, is the Kawana Waters Planning Area Code specific outcomes which is in a tabular form quite common to outcome focussed IPA schemes such as this one, and which sets out specific outcomes for various features of development including building height and associated acceptable or probable solutions.
In SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, Judge Rackemann made some helpful remarks about the use of Codes in schemes such as this. In his judgment, he observed [at 47]-[48]:
“The performance criteria are generally outcome focussed, while the acceptable solutions indicate a “desirable” way to “ensure” compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.
It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a “relaxation” or a “dispensation”. It is another way of achieving compliance with the relevant performance criterion.”
The specific outcomes and probable solutions relating to building height are set out as follows:
| Specific Outcomes | Acceptable solutions for self-assessable development* and probable solutions for assessable development |
| 0I The height of a building or structure: (i) overshadowing; (ii) privacy and overlooking; | S1.1* Unless otherwise specified on Map KWP3, the height of a building or structure does not exceed 8.5 metres above ground level. |
Mr. Manning referred me (and the planning experts) to Map KWP3 which does provide for specific height differences in the Planning Area which obviously does not include this site which is roughly half way between the second and third ‘II’ on the top of the map. I accept the evidence of the planners that these height depictions in the map are representative of existing development.
In the same way, the Detached House Code in Part 8 of the Planning Scheme commences with a statement of overall outcomes for the Code which are relevantly:
“ (2) The Overall Outcomes sought for the Detached House Code are as follows:
… (b) detached houses and associated buildings are compatible with surrounding development;
(c) detached houses and associated buildings are sited and designed to protect residential amenity and maintain streetscape character;
…
(e) detached houses are climatically responsive, energy efficient and incorporate water conservation measures;”
The Code then sets out (at 6.5.2) specific outcomes in tabular for using the same format as the Planning Area Code. Relevantly it provides:
| Specific Outcomes | … probable solutions for assessable development |
| Building Height | |
| 03 The height of the detached house and associated buildings does not cause significant loss of amenity to adjacent residential development having regard to: (a) overshadowing; (b) privacy and overlooking; (Standard Building Regulation 1993 alternative provision) | S3.1* Unless otherwise specified in the applicable Planning Area Code building height does not exceed 8.5 metres above ground level. (Standard Building Regulation 1993 alternative provision) |
The most specific part of the planning scheme relevant to this proposal is the Kawana Waters Planning Area Code and, in particular, the planning area specific outcomes at 6.3.3 of the Scheme relating to building height. The Detached House Code, which is also relevant, is directed at this form of development city wide and not only in the Kawana Waters Planning Area which explains the slightly different wording in both the specific outcomes for building height and probable solutions. More generally there is the reference in Part 5 of the scheme to the Precincts and Other Elements Code which includes the Low Density Precinct, and 5.2.3(9) to which earlier reference is made.
It is common ground, that along Pacific Boulevard and in the immediate vicinity, there are a number of substantial homes which exceed 8.5 metres in height. Lot 23, which immediately adjoins the subject site and which adjoins the Kerr property on its north-western boundary, presents as a very bulky home with minimal apparent articulation and modelling from the Kerr’s perspective, and with existing significant overlooking and privacy imparts particularly on the pool area in the Kerr’s property.
This home has a maximum height of 9.75 metres but it is its bulkiness and mass that stand out when viewed from the Kerr’s property. It is common ground that the proposed house, despite being large, will only cover 37% of the site (where the maximum allowable is 50%). This is undoubtedly a product of clever design but it also means fewer impacts on the amenity of surrounding residents. Although there is no evidence of the actual site coverage of Lot 23, I am quite satisfied from the aerial photographs at p78 of Mr. Dillon’s report, that it covers more than 37% of the site. It is true that this development will impact more on Mr. Kerr’s amenity from his kitchen area than does the development on Lot 23; however this would have occurred in any event with self-assessable development of the site to 8.5 metres in height.
Of even more significance, when considering specific outcome OI(c) in the Kawana Waters Planning Area Code, is the existing impact on Mr. Kerr’s amenity of the development on Lot 23, particularly in relation to privacy and overlooking, which is graphically depicted in photographs in Mr. Dillon’s report p.28 Attachment C, taken by him from the balcony and internal rooms on the first floor of the dwelling at Lot 23.
The house at Lot 22 Pacific Boulevard is also a substantial development which exceeds 8.5 metres in height.
Although this proposal does have a maximum height of 11.2 metres, it is the height of the development at the western and south-western boundaries which will have potentially the most impact on Mr. Kerr’s amenity. Mr. Chenoweth and Mr. Mack agreed that at this point the roof eaves will be 1 to 1.5 metres higher than would be the case for a house meeting the probable solution in S1.1 of the Kawana Waters Planning Area Code.
Mr. Chenoweth accepted in his evidence appropriately that the issues of building massing and scale of the proposed development relate to an area as depicted in the south western elevation from the left hand edge of the drawing (see, for example, p132 of the Appeal Book, Exhibit 1) roughly to the first depiction of a Norfolk pine tree.
Because of the clever design of the house the main part of the building presenting to Mr. Kerr’s boundary with the site is probably less than might be the case if a self-assessable building was erected which did not achieve the high standards of design achieved by this proposal.
Of considerable significance to the specific outcomes, particularly OI (a) and (b) is the existence of the stand of mature Norfolk Pines which border the road boundaries of the site on Pacific Boulevard and Karkawarri Court. As I have noted, these trees are protected under a vegetation protection area and the proposed house has been designed accordingly. The trees will lessen impacts of height from an aesthetic point of view, particularly from Pacific Boulevard and the eastern end of Karkawarri Court because they greatly exceed the height of the proposed building.
In submitting that the proposal conflicts with the Planning Scheme, Mr. Manning in part concentrated his submission on “the inherent character and identity” of the Karkawarri Court area. He is quite correct when he says that the majority of residences in Karkawarri Court are of an older style (similar to Mr. Kerr’s) although there is one obvious exception- the home at 2 Karkawarri Court which is depicted in Photo 1 on p15 of Mr. Mack’s report. For present purposes, I accept that this house complies with acceptable solution S1.1; however it is clearly a home of different character to the others in the court and would fit within Mr. Mack’s description of “more flamboyant” development in the immediate area in recent times.
In my opinion, Mr. Manning’s focus primarily on the character and identity of Karkawarri Court cannot be accepted for two reasons. Firstly, it does not accord with the proper approach to the construing of planning schemes mandated by the authorities to which I have earlier referred, particularly the need to construe schemes broadly, rather than pedantically or too narrowly. Secondly, it ignores the fact that this proposal is for a house on Pacific Boulevard in which the inherent character and identity is derived from homes of similar character and, in some cases, which exceed 8.5 metres in height.
Mr. Mack and Mr. Chenoweth differed in a number of areas concerning the impact on Mr. Kerr’s amenity particularly relating to privacy and overlooking. It is accepted that amenity when mentioned in planning schemes is a wide and flexible concept and in this regard I adopt what I said in GS Unit Trust v Maroochy Shire Council & Ors [2008] QPEC 18 at paragraphs [20]-[24]. The proper planning approach to be applied to the question whether or not a proposal involves impacts which detrimentally affect amenity “involves considering reasonable expectations for the amenity in the area, and the issues set out in the Planning Scheme”: per Wilson SC DCJ in Quinn v Beaudesert Shire Council [2005] QPELR 36 at 39-40. His Honour then quoted with approval what Brazabon QC DCJ said in Baptist Union of Queensland v Brisbane City Council (2003) QPELR 6, at paragraph [129]:
“It is natural enough that such residents would wish to maintain the existing, relatively undisturbed nature of the area. However, from a town planning point of view, their expectations must be reasonable in light of all the planning provisions applying to this land. When judged in that way, some concerns might not be maintainable. In principle, expectations should be based on a full and impartial understanding of all aspects of the planning control. They will include, for example, the possibility that consent might be given for a variety of uses in the area, some more attractive than others.”
Perhaps as a demonstration of the need to avoid the common problem of regarding height in probable solutions in the Kawana Waters Planning Area Code as proscriptive, ultimately Mr. Chenoweth’s opinion is that a condition should be imposed to reduce the proposed house to a maximum of 9.5 metres above ground. His concession lends support to what Mr. Mack (and Messers Dillon and Ryter) say about the importance in this case of the ability of Council to impose conditions leading perhaps to a better amenity outcome than a 8.5 metre without the design features of this proposal.
Mr. Chenoweth’s opinion is based on his opinion that the maximum height involves a “gross exceedance” of what he describes in his report as “the maximum 8.5 metre height specified in the Kawana Area Planning Code for self-assessable houses”. His 9.5 metre proposal would lead to a building that would be below 8.5 metres at the south-western corner in the area depicted in the elevation for that corner referred to earlier.
I accept Mr. Mack’s evidence that such a proposal would lead to a significant compromise of the overall design of the building, especially in terms of roof form, vertical articulation and solar access and ventilation.
Mr. Chenoweth’s opinion relates to a number of criticisms of the proposal and the imposed conditions relevant to amenity impacts. These criticisms were maintained despite an acceptance of his suggestion to erect a horizontal louvre screen arrangement to the second floor balcony and dining room as discussed earlier.
Mr. Mack’s opinion is that the opportunity for overlooking the Kerr house and pool from the 2nd floor balcony of the proposed house would be much the same as it would be from an equivalent balcony of a self-assessable house up to 8.5 metres in height. Mr. Chenoweth’s disagreement is focussed on the additional height, and therefore the added difficulty in screening. He raises this issue specifically in his report at 2.2.5 by reference to condition 6 of the Negotiated Decision Notice. He did not raise this as an area of disagreement in the Joint Experts Report (Exhibit 5). His concern focuses on what he says is the difficulty in enforcing a condition such as this “…firstly, because the available space for planting is only 1577 to 2543 mm wide at this point, and secondly because the screening would need to be 7-8 m tall to obstruct sight lines to the Kerr pool and corner bedroom.”(2.2.3 of his report). It is immediately obvious, that a self assessable proposal with similar set backs could not be conditioned to include any requirement for a visual screen. The developer has accepted the condition, and must comply with it and its existence must lead to a better result for Mr. Kerr as it provides another measure to reduce the impacts on his privacy. With Mr. Chenoweth’s 9.5 metre proposal, presumably the condition would have the same problems that he opines for the present proposal. The self assessable option could not be conditioned (as this one will be) to significantly reduce overlooking from the second floor balcony and the dining room, and Council could not have required relocation of the study window as it has done in condition 5 in the Negotiated Decision Notice. I prefer Mr. Mack’s evidence in this regard.
As regards massing and scale, it is difficult to see how a self-assessable development on this site could not have practically the same impacts on Mr. Kerr’s privacy as the present proposal with the conditions to which I have referred.
There is no evidence that noise from the development will adversely impact on the amenity of adjoining residents including Mr Kerr, and I am satisfied that lighting impacts can be appropriately conditioned to reduce impacts, particularly from the second floor balcony and dining room area. Mr Chenoweth did make some criticisms of the overshadowing diagrams which are annexed to Mr Dillon’s report as Attachment H; however, I agree with Mr Dillon that the likely impacts on Mr Kerr’s property from the proposal are negligible when compared with overshadowing from a self assessable house on the site built to 8.5 metres.
I am satisfied that the proposal achieves the specific outcomes with respect to height set out at O1 of the Kawana Waters Planning Area Code despite the exceedance.
There is no doubt that this Planning Scheme, from a city wide perspective in the Precincts and Other Elements Code, to the more specific parts of the Kawana Waters Planning Area Code to which I have referred, directs the decision maker to height ( and in particular 8.5 metres ), as being an important matter to be considered for residential development. In this sense, it is similar to most other Planning Schemes in this State. It follows therefore that a proposal to build a detached dwelling which exceeds the stated height by 2.7 metres (or 37% as Mr Manning frequently mentioned) conflicts with the planning scheme; however, for the reasons I have exposed, I am satisfied that the conflict is minor and that there are grounds which justify approval notwithstanding the conflict. It is very much in the public interest, and more specifically adjoining residents, that the proposal can be conditioned to reduce amenity impacts to acceptable levels; and the design features of this proposal including its reduced site coverage and positioning of the building on the site, which will result in a high quality development on a corner block on a beach front site in the immediate vicinity of similar homes, is also a ground justifying approval in this case.
It follows that the appeal must fail. I will adjourn for a short time to enable the parties to finalise the conditions some of which will need to be amended in light of developments just before and during the appeal hearing.
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