Langton v Douglas Shire Council

[2014] QPEC 71

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Langton & Anor v Douglas Shire Council [2014] QPEC 71

PARTIES:

FRED LANGTON
(appellant)

and

LOLA LANGTON

(appellant)

v

DOUGLAS SHIRE COUNCIL
(respondent)

FILE NO/S:

69/14

DIVISION:

Planning & Environment Court

PROCEEDING:

Hearing

ORIGINATING COURT:

Planning & Environment Court at Cairns

DELIVERED ON:

4 December 2014 Ex Tempore

DELIVERED AT:

Cairns

HEARING DATE:

1 December – 4 December 2014

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPEAL – where the appellants appealed against the decision of the respondent to refuse a request to extend the relevant period of a development approval – where there has been a significant shift in how the land is treated in the planning scheme – whether the development approval is consistent with the current laws and policies applying to the development -  whether the development approval should be extended for a further four years.

Sustainable Planning Act 2009 (Qld) ss 388, 465, 493

COUNSEL:

Ms Djohan for the appellants

Mr Varitimos QC and Mr Williamson for the respondent

SOLICITORS:

All About Law for the appellants

Douglas Shire Council Legal Services for the respondent

Introduction

1. This is an appeal pursuant to section 465 of the Sustainable Planning Act 2009 (“SPA”) against the decision of the respondent to refuse a request to extend the relevant period of a development approval.

1. The development approval the subject of the request is dated 18 June 2010 and authorises the making of a material change of use for “4 Multiple Dwellings (Tourist) under the 1996 Superseded Planning Scheme” on land situated at 27 Murphy Street, Port Douglas (“the development approval”).

1. The relevant period for the development approval was four years, starting on the day the approval took effect.  The request the subject of this appeal seeks to extend the relevant period by a further four years, essentially doubling the life of the development approval.

1. Pursuant to section 493(4) of SPA, it is for the appellants to establish that the appeal should be upheld.

The Land and the Neighbourhood

1. The land the subjected of the development approval (“the land”) is 1,012 square metres in size and approximately 50 metres long and 20 metres wide.  It slopes from the northeast to the southwest.  A registered easement for drainage purposes runs parallel to the rear boundary of the land.  It has a width of three metres.  The land is located on the lower part of Flagstaff Hill and on the lower side of Murphy Street.  It adjoins the rear of a commercial strip which is the main street in Port Douglas, Macrossan Street.

1. The adjoining land to the west is vacant; the adjoining land to the south is developed with a mixed-use development comprising residential tourist accommodation and retail development.  The land adjoins the back of this development.  The adjoining land to the east is developed with a two-dwelling multi-unit development which has the benefit of taking access for each unit directly from Grant Street, which intersects with Murphy Street.  There are 21 properties located on Murphy Street west of Grant Street.  Seven of these properties are developed with houses, seven of these properties are vacant, one of these properties is a vacant walkway and one of these properties is a restaurant.  Five of the 21 properties are developed with multi-unit dwellings.  Despite the presence of a number of multi-unit dwellings in this part of Murphy Street and in Murphy Street in general, the residential character and amenity of the neighbourhood taking in the land is one where houses and vacant land dominate.

Relevant Planning Controls Affecting the Land

1. Pursuant to the 1996 Douglas Shire Planning Scheme, the land had an Urban designation under the Strategic Plan and was included in the Residential B Zone.  It was also included in the Medium Density Tourism Accommodation Area of the Development Control Plan, Port Douglas (“the DCP”).  It was included in the Special Area 5 Flagstaff Hill for the purposes of the DCP.

1. The material change of use applied for and approved was defined under the 1996 Douglas Shire Planning Scheme as “Multiple dwelling (tourist)”.  Because it was in the Medium Density Area, a maximum plot ratio of 0.45 was permitted.

1. Under the current scheme of the respondent, the 2006 planning scheme, which took effect on 4 September 2006, the land is included in a Residential 1 Planning Area of the Port Douglas and Environs Locality.  It is included within the Special Management Area 1 – Flagstaff Hill.  It has a Low Scale Plot Ratio Designation and is included in the Cultural and Valuable Sites Overlay.  A defined use for the purpose of the 2006 Planning Scheme is “Holiday Accommodation”.  The definition expressly provides that the use includes “holiday apartments and suites” and it is uncontroversial that this definition appropriately characterises the development approval which is the subject of this appeal.

The Parameters of the Appeal

1. In deciding the appeal, I am subject to section 388 of SPA, which relevantly states:

“(1) In deciding a request under section 383, the assessment manager must       only have regard to—

(a) the consistency of the approval, including its conditions, with the    current laws and policies applying to the development, including, for example, the amount and type of infrastructure contributions, or charges payable under chapter 8, parts 2 and 3; and

(b) the community's current awareness of the development approval; and

(c) whether, if the request were refused—

(i) further rights to make a submission may be available for a further           development application; and

(ii) the likely extent to which those rights may be exercised; and

(d) the views of any concurrence agency for the approval given under section 385.”

1. Of the above matters, I can address two in short order.  I really have no meaningful evidence before me of what the community’s current awareness of the development approval is, and exhibit 12 discloses that the only concurrence agency for the approval, the State Department of Infrastructure and Planning, advises that it has no objection to the extension the subject of this appeal.

The Consistency of the Approval with the 2006 Planning Scheme

1. There has been a significant shift in how the land is treated in the 2006 planning scheme compared to the 1996 planning scheme, pursuant to which the development application was assessed and approved.  The land was formerly in the “Tourist Accommodation Area” and it is now in the Residential 1 Planning Area pursuant to the 2006 planning scheme.  In the Residential 1 Planning Area, Holiday Accommodation is Impact Assessable (Inconsistent).  In section 3.2 of the scheme, it is stated that this category of assessment “indicates that the development is not considered to be consistent with the achieving of ecological sustainability or the DEO’s for the Shire in that particular Planning Area”.

1. The DEO’s express the broad outcomes sought by the planning scheme.  There are 12 which are intended to be broadly reflective of the statutory concept of ecological sustainability which underpins them.  The planning scheme divides the Shire into six Localities and 11 Planning Areas.  Relevant DEO’s which arise for consideration in this appeal are DEO 10, which speaks in terms of providing a range of housing options, which provide a high standard of living and a variety of different lifestyle opportunities, and DEO12, which refers to maintaining, amongst other things, a sense of community with the natural features of residential communities, together with community values and cohesion. The primary measures contained in the Planning Scheme which seek to achieve these DEO’s are the division of the Shire into Localities, and the use of applicable Codes.  Relevant Codes in this appeal are the Port Douglas and Environs Locality Code (“PDELC”) and the Residential 1 Planning Area Code (“R1PAC”). 

1. In the PDELC its purpose is stated to include facilitation of an outcome for the Port Douglas and Environs Locality to “protect existing and future residential areas from the intrusion of tourist accommodation activity”.  Performance Criterion P16 provides for a maximum Plot Ratio of 0.35:1. 

1. In the R1PAC, the purpose is stated to include to “maintain and enhance the residential character and amenity of established residential neighbourhoods”.  Performance Criterion P1 states that the “establishment of uses is consistent with the outcomes sought for the Residential 1 Planning Area.”

1. It should be noted that the Vehicle Parking and Access Code (“VPAC”) is also relevant to the determination of this appeal.  The purpose of this code seeks to ensure the provision of sufficient vehicle parking to the site in question.  Performance Criteria P2 and P11 require the provision of parking spaces to meet the needs of vehicle occupants with disabilities, and the provision of access for people with disabilities to the building from the parking area and from the street.

Discussion

1. The proposed development which is the subject of the development approval is very large for the size of the land.  It is made more difficult because of the narrow frontage, and the significant slope.  Attempts by the appellant to demonstrate achievable vehicle access to the garages of the proposed four dwelling units suggest the need for design revisions, which may lead to increases in the height of the proposed development.  Not surprisingly, it cannot comply with P16 of the PDELC, and the plot ratio is 0.52:1, significantly in excess of the maximum plot ratio set out in P16 of 0.35:1.   Moreover, there is simply no room to provide for parking and access for people with disabilities, pursuant to P2 and P11 of the VPAC, and the appellant does not even attempt to do so. 

1. The appellant seeks to minimise inconsistencies between the approval and the 2006 Planning Scheme by relying on the part of the purpose of the R1PAC and P1 quoted above.  It is submitted that the approved development will maintain the character and amenity of the established mixed tourist/residential neighbourhood.  However, these provisions of the R1PAC need to be read subject to the planning strategy which underpins the 2006 Planning Scheme which I have identified.  The purpose of maintaining and enhancing the residential character and amenity of the neighbourhood is to be read in the context of actively discouraging Holiday Accommodation in it.  I find that there is no justification for reading these passages of the R1PAC in isolation to assert consistency between the approval and the 2006 Planning Scheme.

Conclusion

1. The approval is not consistent with the underlying planning strategy for the land, pursuant to the 2006 Planning Scheme, which seeks less intensive residential development and discourages Holiday Accommodation. It is completely inconsistent with P16 of the PDELC, and P2 and P11 of the VPAC. I would dismiss the appeal on these grounds alone, given the extent of the inconsistencies with these provisions of the 2006 Planning Scheme. However, I also need to consider section 388(1)(c) of SPA.

1. I note that a submission was made by the adjoining owner to the east.  He objected to the proposed development on both planning and amenity grounds when the proposed development was publicly notified.  Given the changes to how development of this type is treated in the 2006 Planning Scheme on the land, I am of the view that if this appeal is dismissed and the proposed development assessed under the current planning controls, rather than pursuant to those put in place 18 years ago, this submitter, who still owns the land to the east, would exercise his right to make a submission.  The fundamental shift in how the proposed development is viewed, pursuant to the current planning scheme, is such that I am of the view that other persons may also exercise rights to make a submission in respect of any prospective development application seeking to develop the land in accordance with the approval.  These discretionary considerations also justify dismissing the appeal.

1. Accordingly, I dismiss the appeal.