Lewiac Pty Ltd v Gold Coast City Council and Ors ; Tanswell v Gold Coast City Council and Anor
[2006] QPEC 112
•31 October 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lewiac Pty Ltd v Gold Coast City Council & Ors, Tanswell v Gold Coast City Council and Anor [2006] QPEC 112
PARTIES:
LEWIAC PTY LTD
Appellant
and
GOLD COAST CITY COUNCIL
Respondent
and
MALCOLM TANSWELL & ORS
Co-respondent by election
and
JAN TANSWELL
Appellant
and
GOLD COAST CITY COUNCIL
Respondent
and
LEWIAC PTY LTD
Co-respondent
FILE NO/S:
P&E Appeal No 543/2005 and 643/2005
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Southport
DELIVERED ON:
31 October 2006
DELIVERED AT:
Brisbane
HEARING DATE:
23, 24, 25 and 30 May 2006
with written submissions being received until 20 June 2006
JUDGE:
Rackemann DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr M Hinson SC for Lewiac Pty Ltd
Mr C Hughes SC for Gold Coast City Council
Mr W L Cochran for Tanswell & Ors
SOLICITORS:
Freehills for Lewiac Pty Ltd
McCullough Robertson for Gold Coast City Council
Hynes Lawyer for Tanswell & Ors
INTRODUCTION
On 1 August 2005 the Council approved, subject to conditions, an application by Lewiac Pty Ltd (Lewiac) for a development permit for a material change of use for two apartment buildings, a café, commercial services (real estate agency) and a vehicle sales premises (boat sales) on land described as lot 506 on registered plan 215032 the Sovereign Mile, Sovereign Islands.
The Sovereign Islands have been progressively under development for many years. Development is dominated by detached dwellings of grandiose scale, in a wide variety of architectural styles. The Islands are linked to Paradise Point by a bridge of approximately 250 metres in length. The subject site is to the immediate left as one enters upon the Sovereign Islands from the bridge.
The subject site is presently developed with an existing boat brokerage and a real estate sales office. It also features at grade carparking and an observation tower. Lewiac seeks approval to redevelop in a way which incorporates the sales office and boat brokerage and introduces a café and two apartment buildings, of four storeys in height, to contain, in aggregate, 13 dwelling units. The height of the proposed apartment buildings approximates the height of the existing observation tower (which will not be retained).
The application was recommended for approval, subject to conditions, in a report to the Council authored by one of its senior town planners and authorised by its director of planning, environment and transport. The application was, it would appear, controversial when it came before the Council meeting on 1 August 2005. At that time a motion was put that the officer’s recommendation not be adopted and that the Council refuse the application. That motion was lost. A further motion was then carried that the application be approved, but with a three storey height limit and subject to other modifications.
There are two appeals arising out of the Council’s decision. Lewiac has appealed against some of the conditions of approval, including those which required the proposal to be reduced from four storeys to three storeys and from 13 units to 11. There is also a submitter appeal against approval of the application.
The issues debated at the hearing can be summarised as:-
(a) Whether the application was competent and, if not, whether that is fatal.
(b) Whether the approval lacked certainty and finality.
(c) Whether approval of the application would conflict with the planning scheme and, if so, whether that ought result in a refusal.
(d) Whether the proposal would unduly adversely impact upon amenity, including by reason of visual impact, privacy, noise, lighting or traffic impacts.
WAS THE APPLICATION COMPETENT
Counsel for the submitter appellant[1] sought to invoke the so-called “Pioneer principle”, to contend that the development application was not sufficiently comprehensive in terms of including all of the comprehended material changes of use, all of the land the subject of those material changes of use, or the written consent of the owner of such land.
[1] and submitter co-respondents to Lewiac’s appeal
The application, on its face, sought an approval in relation to lot 506 on RP215032, which has an area of 4,059 m2 . The northern boundary of that allotment fronts a canal, within which there are two lots (lots 332 and 343) which are the subject of sea bed leases and purportedly included within the Public Open Space domain, pursuant to the town planning scheme. They are used to berth boats associated with the boat brokerage.
The western boundary of lot 506 adjoins the vacant lot 505, which surrounds lot 512 (which accommodates a driveway and sewerage pumping station). The western boundary of lot 505 adjoins the broadwater, the relevant part of which, for present purposes, has been described as lot 101. To the east of lot 506 lies lot 507, the northern boundary of which also adjoins the canal.
Lewiac apparently intends to develop facilities to berth seven vessels in the area described as lot 101 and to dedicate, to the exclusive use of owners of the new apartment buildings, a number of berths in the area of lots 332 and 343. It has already obtained a development permit for a material change of use with respect to lots 505, 506, 332, 343 and the unzoned land adjacent to lot 505 (ie lot 101). That includes approval for an extension to the existing mooring facility for seven additional vessels (bringing the approved total number of berths to 26). That approval is subject to conditions, which include the provision of seven additional car parking spaces on lot 506 in accordance with a certain plan, and the provision of a safe pedestrian pathway between the existing facilities on lot 506 and lot 505. Condition 19 states that the approval is limited to the mooring of vessels for the purposes of the existing boat brokerage. That development permit has not yet been acted upon.
It was contended, on behalf of the submitters that:
“The proposed development is one which clearly incorporates the intended multiple dwelling, the commercial/retail elements comprised of the café, real estate sales office and yacht brokerage. Amongst other things lots 505 and 512 are, at the very least, to be utilised for a purpose of access between lot 506 and the seven proposed marina berths to the general west of the subject site. Similarly it appears clear that it is intended that some of the berths presently utilised for the yacht brokerage business and accordingly falling within the definition of vehicle sales use are intended to be converted to private use and accordingly must be regarded as a marina as that term is defined in the Gold Coast Planning Scheme. The totality of the proposal involves more than just lot 506 and includes at least lots 505, 512, 507, 332, 341 and 343. It also involves lot 101”.
It was submitted that the application was impermissibly “piecemeal”.
The “Pioneer principle”, which derives from the High Court’s decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1979) 145 CLR 485, is not a principle of the common law, but an interpretation of a statutory requirement. It relates to that which was required to be included in an application, having regard to the statutory regime which then applied.
There is no provision of the IPA which expressly provides that an application may not be made in a piecemeal way. In Edwards & Anor v Douglas Shire Council [2000] QPELR 375, Robin QC DCJ concluded that the principle had application under the IPA by reason of s3.2.1, read as a whole. The submissions of Lewiac and the Council in this appeal did not challenge the potential applicability of the principle under the IPA, but rather debated its applicability to the facts of this case.
It may be observed that:
1. Pioneer is authority for the proposition, at least in that statutory context, that, where it is necessary to make application for consent for a particular use of land, the application for that single use relates or applies to the whole of the land to be used for that purpose and it is for that entire use that the application must be made and all the land involved in the use must be the subject of the application. No piecemeal series of applications is permissible.[2]
2. Pioneer does not create a rule against making more than one development application in relation to intended development. It is not necessary to apply at the one time for all contemplated or intended forms of development. The Pioneer principle does not require that two separate and distinct uses be combined in the one application (Brisbane City Council v Cunningham (2001) 115 LGERA 326).
[2] see Pioneer Concrete (Qld) Pty Ltd v BCC (Supra) per Stephen J at 500
Insofar as the intention to dedicate some of the berths for use by occupants of the proposed new units on lot 506, I adopt the following submissions of Mr Hinson SC, for Lewiac:
“So far as the apartment building use is concerned, the submitter appellant points to a proposal referred to by Mr Brewster whereby some of the marina berths in lot 332, lot 343 might be used by occupants of the units of lot 506 to moor their boat. It is not a firm or definite proposal: see T211. The present application does not seek approval for that use. If such a use of lot 332 or lot 343 involves a material change of use which is assessable development, a development permit will have to be sought. Such a use is not part of the apartment building use for which approval is sought in the present proceedings, and nor could it be contended that such a use is incidental to and necessarily associated with the apartment building use under the schedule 10 definition of use.”
The boat brokerage is an existing use. In the context of the IPA, (unlike its predecessors) that for which the applicant requires a development permit is not the conduct of a permissible use per se, but rather a development permit for a “material change of use of premises”. A material change of use of premises is defined as meaning, generally, the start of a new use, the re-establishment of an abandoned use or a material change in the intensity or scale of the use (s 1.3.5).
The change for which approval is sought in the subject application relates to the relocation of the existing boat brokerage business within lot 506 (and its accommodation within the new building on that site). To the extent that involves a material change of use, the application is for the entirety of that proposed change and includes the whole of the land on which that change would take place. If Lewiac eventually decides to proceed with other changes, which affect the other lots, then it will need to ensure that it has any necessary approvals before doing so. In that event and to the extent that it needs to rely upon its existing approval (in respect of lots 505, 506, 332, 343 and 101) it may, as Mr Hughes SC pointed out, need to make further applications, at least by way of an application to modify conditions. Whether it ultimately decides to pursue those changes however, is a matter for it.
As Mr Hughes SC, for the respondent, submitted:
“5For present purposes, all the court needs to know is that the proposed development can proceed independently of the requirement for any additional land which is not presently the subject of appropriate approvals.
6In this regard, while the boat brokerage business office located on lot 506 will change (if the proposed development is approved) the area where the boats are moored in association with the boat brokerage does not change. In other words, there is no need for any material change of use in respect of the mooring area associated with the boat brokerage…
Here, no material change of use is sought or required in respect of the boat mooring area as part of this application. The only approval with respect to the boat brokerage business involves a relocation of the office from one part of lot 506 to another.”
As Mr Hinson SC, for Lewiac pointed out:
“The application as made is entirely self sufficient. The use of lot 506 for the uses applied for does not depend on the use of other land, whether for access or otherwise. In those circumstances there is no need to include other land in the application; see Ecovale v BCC [1999] QPELR 189 at 191, affirmed 2000 to QdR 277, Watpac Pty Ltd v Cairns City Council [2001] QPELR 122 at 124 I-L and Mirvale Pty Ltd v BCC [2001] QPELR 125 at 127-128.”
That is sufficient to dispose of the argument, but two further observations should be made.
First, insofar as the argument relates to land below the high water mark (lots 332, 343 and 101), it would appear that, subject to one qualification regarding operational works, the land is not lawfully subject to the planning scheme and, as Mr Hinson SC submitted, there would appear to be no proper basis for concluding that a development permit for a material change of use would, in any event, be required with respect to those lots.
Under the IPA, a development permit is only required for assessable development (s 3.1.4(1)). Assessable development is development specified in schedule 8 part 1 of the IPA or for “a planning scheme area”, development that is not specified in schedule 8, part 1, but is declared under the planning scheme for the area to be assessable development (see schedule 10). The “planning scheme area” is the whole of the local government’s area (s 2.1.2(1)).
The local government’s area is determined by reference to the Local Government Act 1993 and, more particularly, the relevant map under schedule 1 of the Local Government (Areas) Regulation 2005. In this case, the local area includes the Sovereign Islands above its ‘seashore’ which is identified by reference to the high water mark.[3]
[3] see the Survey and MappingInfrastructure Act (2003)
It follows that lots 332, 343 and 101, which are below the high water mark, are not within the local government area or the planning scheme area of the Gold Coast.
Pursuant to s 2.1.2(2), the local government may apply its planning scheme, beyond its planning scheme area, for the purposes of assessing prescribed tidal work in its tidal area, to the extent stated in a code for prescribed tidal work under the IPA. Prescribed tidal work is defined by s 14 of the Coastal Protection and Management Regulation (2003). It is “operational work” as defined by IPA (s 1.3.5), not a material change of use. It was not contended, on behalf of the submitter appellants, that there was some prescribed tidal work which was required to be the subject of the present application for a material change of use.
Accordingly, as Mr Hinson SC submitted, to the extent that the material change of use applied for in respect of lot 506 also involved a material change of use of lots 332, 343 and 101, the material change of use of lots 332, 343 and 101 was not assessable development and no development application was required to authorise any material change of use on those lots.
There are some decisions of this court which support the proposition that, at least in some circumstances, an applicant may be required to include, in an application, land otherwise unregulated by the planning scheme[4]. The Pioneer case does not stand for that proposition.
[4] See Edwards & Anor v Douglas Shire Council & Ors [2000] QPELR 362 and Mitchell Ogilvy v Brisbane City Council [2000] QPELR 414
In Pioneer, the access road would have been required to traverse other land in the same ownership (lot 1) as well as land within a forest reserve, the property of the Crown, so as to provide access to Mount Crosby Road. The Court’s decision meant that the application ought to have included the access route over Lot 1. As to the forest reserve however, Stephen J (with whom Murphy J agreed) agreed with Wilson J who said[5] (my underlining)
“…The application of the Brisbane City town planning legislation to Crown land has been argued recently before this court … However this question was not fully canvassed in the argument and I make no comment upon it other than to say that if the legislation validly requires the consent of the Brisbane City Council to the proposed use of part of the State forest, then, in my opinion, that use necessarily forms part of the subject of the primary application and should have formed part of that application”.
[5] at 516
The potential difficulties, referred by Stephen J[6], of piecemeal applications creating pressures at the time a subsequent application is considered, do not arise if no development application is required to be subsequently made with respect to the land which was not included in the first application.
[6] at 504
In Byrne Bros. Pty Ltd v Maryborough City Council (1984) 57 LGRA 419, Campbell CJ obsereved, at 431, that the decision in Pioneer “obviously cannot require the consent of the council for the use of land which is not the subject of the provisions of the town plan”.
I would not, for my part, interpret the Integrated Planning Act as requiring a development permit to be sought with respect to land where the development on that land is not assessable development. That is not to say that circumstances beyond the site are necessarily irrelevant in determining whether or not to grant a development permit, or in setting conditions. The assessment and decision-making process routinely considers a proposal in its context. It is however, difficult to divine from the provisions of the IPA, a requirement to include within the land, the subject of an application for a development permit, that on which no assessable development is to occur.
Finally if, consistently with the submissions advanced on behalf of the submitter appellant, there had been non-compliance with the requirements of the IPA, then, to the extent the application was not taken to have been properly made upon consideration and acceptance by the Council,[7] the court would be called upon to consider whether to, in effect, excuse non-compliance pursuant to s 4.1.5A. Non-compliance is not necessarily fatal.
[7] see s 3.2.1(9) and (10)
For the reasons already given, it is not necessary to invoke s 4.1.5A in this case. As both Mr Hinson SC and Mr Hughes SC pointed out however, it is difficult to see how any failure ought lead to a conclusion that the opportunity for any person to exercise the rights conferred by the Act, has been “substantially restricted”. Mr Cochrane, for the submitter appellant, did not identify any basis upon which the court should, in those circumstances, find that a substantial restriction had occurred or otherwise advance a basis upon which the court should withhold a favourable exercise of discretion.
Certainty and Finality
It was submitted, on behalf of the submitter appellants, that the council’s approval lacked requisite certainty and finality, because it required the proposal to be reduced in storeys and units, without stipulating how that was to occur.
This issue does not raise any insurmountable difficulty. The alleged defect in the council’s conditions of approval can, if necessary, be rectified in the context of the appeal, which proceeds as a rehearing anew of the development application.
If Lewiac is successful, then the condition requiring the modifications will be deleted and the concern disappears. If the council is successful, the further hearing of the appeal could be adjourned to permit amended plans to be prepared, having regard to the court’s reasons. If the submitters are successful, the application for development approval will be refused.
Conflict with the Planning Scheme
The Gold Coast Planning Scheme is an IPA planning scheme. The development application was subject to impact assessment. The planning scheme is one of the matters to which the assessment manager must have regard in carrying out impact assessment (s 3.5.5(2)(b)) for development in a planning scheme area. The assessment manager’s decision, on an impact assessable application, must not conflict with the planning scheme, unless there are sufficient grounds to justify the decision[8]. That requirement is, as Fryberg J observed in Woolworths Limited v Maryborough City Council & Anor[9], expressed somewhat differently to its analogue under the repealed legislation, which had been considered in Weightman v Gold Coast City Council[10].
[8] s 3.5.14(2)(b) amendments introduced by IPOLAA 2006 (Act no 11 of 2006) changed the expression “sufficient planning grounds” to “sufficient grounds” and introduced a definition of ‘grounds’, but these amendments do not affect the conclusions in this case which would be the same under either formulation.
[9] [2005] QCA 262
[10] [2002] QCA 234
The planning scheme includes codes which contain performance criteria and acceptable solutions. 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 necessarily requiring adoption of the acceptable solution. It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. 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.[11]
[11] See SDW Projects Pty Ltd v Gold Coast City Council (2006) QPEC 74
The subject site is mostly contained within the Local Business Domain but in part, around 3 of its boundaries, in the Public Open Space Domain. The Public Open Space Domain designation of the subject land is curious. The intent for that domain states:
“This domain applies to land that is intended to be retained in public ownership and maintained as open space…
“The public open space applies to open space in the ownership of Federal, State or local government and private areas that are suitable for future public open space dedication. It includes national parks, conservation parks, State forests and recreation reserves. It also includes recreation camps in public ownership, major sporting facilities in local community parks…”
No part of the subject site is currently in public ownership. There was no suggestion of any current requirement for dedication of land to public ownership, nor any suggestion that such dedication should occur in the future. The planning history is reviewed in the report of Mr Brewster, who contended that the designation is the result of a mapping error, but I will refrain from speculating about that.
Many of the statements of intent concerning the domain do not have apparent relevance to the subject site. The purposes which could most obviously be served are those relating to the provision of access, landscaping and buffering.[12]
[12] See Brewster Exhibit 5, p 1-2 and Mr Venn Exhibit 7, p 13
As Mr Hinson SC conceded, it is probably correct to conclude that there is conflict with the Public Open Space Domain intent and place code because part of the eastern building (building B) would intrude into the domain, as would part of the swimming pool and some of the car parking at ground level. As he pointed out however, the intrusion of the built form into the public open space domain is relatively minimal[13] and would not prejudice the functions performed by this part of the site. No criticism was made of the landscaping proposals. I am satisfied there are sufficient grounds to warrant approval notwithstanding conflict. That is a matter to which I return later in these reasons.
[13] See Exhibit 7, p 62, fig. 6
The intent of the Local Business Domain is as follows:
“The purpose of this domain is to ensure that local business centres provide opportunities for local community interaction and a sense of place and identity. It seeks to provide for a wide variety of activities including retailing, office uses, personal services, entertainment and recreational activities, without changing the function or the predominant local service orientation of the business centre. This domain also provides for residential activity to locate within local business centres where this can be accommodated without fragmenting the commercial centre or creating conflicts between residential and commercial uses.
A key objective of the domain is to ensure that the development of local business centres does not threaten the viability of other existing local centres and other existing or proposed business centres at the district, sub-regional, regional and key regional/metropolitan activity centre levels in the activity centre system.
This domain seeks to promote a local community focus and to support community identity through the provision of high-quality public spaces and effective urban design.”
The proposal:
(a)Would enhance the role of the business centre in providing opportunities for local community interaction and a sense of place and identity. It would retain the existing non-residential uses and provide for a further non-residential facility, namely a café. Visually, the proposal would also, as Mr O’Brien said, promote a strong sense of place and identity.
(b)Would also introduce residential activity within the business centre. That residential activity can be accommodated, on the subject site, without fragmenting the business centre or creating conflicts between the residential and commercial uses.
(c)The extent of the commercial facilities is relatively modest and there is no basis to conclude that the centre would threaten the viability of other existing or proposed centres.
(d)The design is of high quality.[14]
[14] See Exhibit 2
It was contended that the proposal fails to meet the intent of the Local Business Domain because of the relative dominance of the proposed residential component and the failure to provide for a “wide variety” of non-residential activities. The argument, in effect, was that the proposal was for land in the Local Business Domain to be inappropriately used mainly for apartment buildings with some relatively minor non-residential component, rather than for a local business centre which also provided for some residential activity.
Insofar as the non-residential activities are concerned, the intent speaks of a “predominant local service orientation”, with activities at a scale which do not threaten other centres. The activities which will be appropriate for any particular site within the domain will depend on the circumstances of the site within its locality. The intent does not specify a particular proportion of non-residential activities.
In this case, the two commercial uses, which are to be accommodated, are existing uses. There was no suggestion that the continuation of those would be inappropriate or that the proposed new café ought not be established. That range of non-residential activities is relatively modest, but the business centre, being located on the islands, has a limited local catchment, which includes residents, some of whom may not reside on the island on a year-round basis. That catchment is unlikely to be supplemented by significant passing trade, as may apply to a local centre proximate to a main road on the mainland and it would not be appropriate to create a centre at the location which focussed on non-local trade. The range of commercial uses appropriate to a ‘predominant local service orientation’ in this context will necessarily be limited. Mr Venn said[15] “it is inevitable that there is likely to be some compromise in this location because the domain is isolated on an island incapable of supporting its own local business activities without outside trade”.
[15] Ex 7 p 32
That which could be supported was investigated by the applicant in formulating the proposal.[16] The relative provision of non-residential facilities is, I am satisfied, appropriate in the particular context of this site and its locality.
[16] See the report by Landplan Australia Pty Ltd accompanying the application behind Tab 1 and the letter from Landplan Australia Pty Ltd to the council behind Tab 10
In the circumstances there are sufficient grounds to justify approval notwithstanding any conflict with the intent, which could be said to arise by the reason of the relatively modest size of the non-residential component of the proposal. I note that the council’s planning officer (who also noted that even the modest proposed increase in commercial activity had drawn objections and that greater commercial activity would likely create greater impacts) reached a similar conclusion.[17]
[17] See p 11 of the report behind Tab 12 of Exhibit 1
It was also contended that the proposal was in conflict with performance criteria 1, 2, 3, 10, 11, 17 and 18 of the Local Business Domain Place code.
Performance criteria 11 states that:
“All buildings must be designed to a high aesthetic standard to complement or enhance the character of the local business centre.”
The character which is to be complemented or enhanced is that of the local business centre itself. No witness expressed the view that there was conflict with this performance criterion. I accept the evidence of Mr Robinson, including his evidence that this proposal is a “skilful design” in which “the planning of the commercial usage has been well conceived and located” and the proposed apartment buildings display “a high degree of architectural merit”. I accept the evidence of Mr O’Brien, including his opinion that “the proposed development will promote a strong sense of place and identity for the local business centre”. I am amply satisfied that the buildings are designed to a high aesthetic standard and would comply with the performance criteria.
Performance criterion 17 requires that:
“All car parking areas must not be visually intrusive or the dominant feature of any individual development”.
While the development features some ground level car parking proximate to the site entrance, I do not consider that it would be a “visually intrusive” or a “dominant feature”. I accept the evidence of Mr O’Brien.[18]
[18] See 77-78
Performance criterion 18 provides that:
“ The proposed use must not detract from the amenity of the local area, having regard, but not limited, to the impact of …..”
Matters specifically referred to include noise, traffic, lighting, visual amenity and privacy. No acceptable solution is specified. The impact of the proposal on the amenity of the local area is considered later. For the reasons discussed, I do not consider that the proposal would detract from the amenity of the local area. Mr Higginson also referred to PC 19, which requires the proposed development to take into account and seek to ameliorate, any negative aspects of the existing amenity of the local area. I do not consider the proposal is in conflict with that provision.
Performance criterion 2 relates to building set-back. It provides:
“All buildings must provide for set-backs from the street frontage and the side and rear boundaries of the site, which are appropriate for:
(i) The efficient use of the site.
(ii) The local business character of the area.
(iii) The separation from neighbouring properties and from frontages to roads.
The acceptable solutions are not adopted in the proposal, for the eastern and western set-backs for lots 507 and 505, both of which are owned by Lewiac and are in the Private Open Space Domain. The proposal is well set back from its other boundaries. I am satisfied that the performance criteria is complied with. It is, I accept, appropriate for the two buildings to be properly separated (and accordingly, pushed towards the side boundaries), for internal and external amenity reasons. The site is an unusual one, which is well separated from nearby development. I am satisfied that the set-backs are appropriate in the respects nominated in the performance criteria.
Performance criteria 3 relates to accommodation density and requires that:
“The accommodation density achievable in the local business centre is consistent with the level of services available and provides an incentive for residential, mixed-use development.”
The specified acceptable solution is that the maximum residential density does not exceed one building per 300 square metres of site area or does not exceed that shown on overlay map OM 4 – Residential Density. That map simply refers back to the domain for residential density, which provides that a material change of use involving building work that exceeds one building per 200 square metres of site area is impact assessable.
The word ‘site’ is defined, in the planning scheme, to mean any land on which development is carried out or is proposed. There are 13 units proposed, which results in a site density of 1 per 312 square metres, calculated by reference to the area of lot 506, which is the site on which development is proposed. Viewed in that way, the acceptable solution has been adopted.
It was submitted, on behalf of both the council and the co-respondents, that the reference to “site area”, in the acceptable solution, should be construed as a reference to only that part of the site which is included within the Local Business Domain. On that basis, the density would be one per 220 square metres and so the acceptable solution would not be met without a reduction in the number of units. If that submission were accepted then consideration would turn to whether the performance criteria was met. In my view, it is.
The purpose of the code is to seek to ensure that the scale and density of development are consistent with the purpose of the domain. The purpose of the domain, in turn, contemplates residential activity:
“where this can be accommodated without fragmenting the commercial centre or creating conflicts between residential and commercial uses”.
The accommodation density proposed in this case would not cause fragmentation or lead to conflicts between the residential and commercial uses. Returning to PC3, the proposal achieves residential mixed use development and in my view, there is, in the circumstances, no inconsistency between the number of units to be provided and the level of services available.
To the extent the relative proportion of the residential and non-residential components is said to create conflict, I am satisfied that a relatively modest level of business services relative to the residential component, is appropriate in this case and there are sufficient grounds to justify an approval notwithstanding any conflict.
It might also be observed that a reduction in the number of units per se would not necessarily address the concerns of the submitters (and the council) concerning alleged amenity impacts associated with the four storey apartment buildings. Concerns would no doubt remain whether the site density was reduced by altering the internal configuration to achieve a lesser total number of units within the same number of storeys.
Performance criteria 1 and 10 are in identical terms, namely that:
“All buildings must be constructed to a height that complements the character of the local business centre and must not adversely impact on the amenity of any adjoining residential area”.
Different acceptable solutions are nominated for the identical performance criterion. The acceptable solutions to PC10[19] contemplate a maximum of three storeys with commercial use on the ground floor and residential use on the third storey or, alternatively, a height which does not exceed that on overlay map OM6 – Maximum Building Height. That map shows a maximum for the subject site of two storeys. The acceptable solutions would be satisfied either by a two-storey building or a three-storey building configured in the way described.
[19] Which are probably more relevant to the subject application, given the structure of the code
Much was made, in the course of the case, of the Maximum Building Height overlay map and the non-adoption of the acceptable solutions for PC10. That is not however, fatal. As has already been observed, the planning scheme admits of the prospect of a proposal complying with the performance criteria notwithstanding the non-adoption of the specified acceptable solution. The heights referred to are not immutable.[20] Indeed it was pointed out, in the course of the hearing, that development has been constructed or approved on nearby Ephraim Island and on the mainland, notwithstanding that it exceeds the applicable nominated maximum building height.
[20] See Caltabiano COB v Brisbane City Council [2005] QPELR 60 at 66
Ultimately, the question, in relation to PC 10, is whether the proposed buildings are constructed to a height which complements the character of the local business centre and does not adversely impact on the amenity of any adjoining residential area.
The subject site is not part of a wider local business centre of a particular character which should be complemented. In this case, the local business centre is composed of the subject site. The existing buildings on that site will be demolished. The character of the local business centre will be the character created by the subject development. Within that centre it is proposed to have two buildings, each of four storeys, which will be complimentary.
The remaining question, in relation to the performance criteria, is whether the buildings would be of a height which would “adversely impact on the amenity of any adjoining residential area”. Strictly speaking, there is no “adjoining” residential area in this case. That part of the site included in the Local Business Domain is adjoined, on three of its sides, by land within the subject site which is in the Public Open Space domain. The land to the immediate east and west of the site is included within the Private Open Space domain. To the immediate north lies the canal, part of which is purportedly in the Public Open Space domain. Residential areas to the south and east are separated from the site by a road and park.
On a strict interpretation, the proposal cannot fail PC10 by reason of an adverse amenity impact, because there is no “adjoining residential area”. That does not mean that any likely adverse amenity impact would be otherwise ignored in the assessment of the application, but there would be no conflict with PC10.
Even if the expression “adjoining residential area” was given a more liberal interpretation there is no obstacle, in this case, to the proposal being found to comply with PC10 if it is found not to have an adverse impact on amenity. Given my findings in relation to likely impacts, set out later in these reasons, I am satisfied that PC10 is complied with, even on the more liberal interpretation of “adjoining residential area”.
Mr Hinson SC also contended that, read in context, the concept of amenity, in PC10, was not referring to an impact on character.
Ultimately, it is unnecessary to determine whether “adjoining residential area” should be given a more liberal interpretation or whether the expression “amenity” is used in some restricted sense in PC10, since, by reason of PC18, the development must, in any event, be tested for its impact on the amenity of the local area more generally.
Moreover, subject to an assessment of its likely amenity impacts, the proposal ought not be refused on account of conflict with the planning scheme. While the built form intrudes into the Public Open Space designation, the extent of intrusion is minimal and not significantly detrimental to the function of that part of the site. The merits of the proposal overall, discussed later, are sufficient, on balance, to justify approval notwithstanding conflict in this regard.
The proposal is at least largely in accordance with the intent of the Local Business Domain and with the performance criteria in the Local Business Domain Place Code. To the extent that any conflict arises with the intent (and/or with PC3) from the relatively modest proportion of the development given over to non-residential components compared with that proposed for residential purposes, there are sufficient planning grounds to justify approval notwithstanding the conflict, given the circumstances. In this regard the grounds relating to the point of conflict have been discussed and relate to the appropriateness of the level of provision, and inappropriateness of requiring a greater provision in the circumstances. Further, I am also satisfied that the merits of the proposal overall, discussed later, are sufficient, on balance, to justify approval notwithstanding the alleged conflict.
Ultimately, the decisive issue in the appeal is the assessment of likely amenity impacts.
Amenity
It has already been noted that the subject site is not adjoined by any residential area. It is separated from residential areas to the south and east by a road and a park. There is no residential development to the west or to the immediate east. The only residential uses which could conceivably be potentially adversely affected, by any direct amenity impacts, are the seven or eight houses on the opposite side of the canal to the north, which are separated from the proposed development by in the order of 60 metres or more. Likely impacts on those residents were carefully considered in the course of the hearing.
Potential noise and lighting impacts were investigated by Mr King, whose evidence I accept. His conclusion was that, subject to the imposition of appropriate conditions;
“The development can occur such that noise and light amenity impacts at nearby residential areas are not adverse to residential amenity”.
There was no evidence of adverse overshadowing.
Mr O’Brien acknowledged that residents from across the canal would suffer a “slight loss” of view of the sky, but that the difference between the four storey development proposed and a three storey development, complying with the acceptable solutions in the Local Business Domain code, would be “almost imperceptible”.
The residents on the other side of the canal expressed concerns with respect to overlooking/ privacy. Those concerns should be placed in context. The rear of their properties open on to a canal in which boats are moored. They are opposite the designated Local Business Centre. That centre currently features an observation tower, of approximately the same height as the proposal (although it is not always open). The local business centre could be developed to three storeys, whilst staying within the acceptable solutions for building height in the Local Business Domain Place code. Absolute privacy for all parts of their properties would be an unrealistic expectation in the circumstances. That is not to say however, that the residents should be unconcerned about such issues.
It was pointed out, on behalf of Lewiac, that overlooking of the existing residences, across the canal, would potentially occur with a two, three or four storey development. In the case of the subject development however, instead of having buildings orientated towards the canal, the built form has been broken up into two distinct four storey building forms, which have been angled towards the broadwater, rather than the canal. Further, the fourth floor is, in each case, a single level penthouse with indoor living spaces set back behind generous width balconies, so that overlooking could be expected to be minimal, when the occupants are inside. Further, the design incorporates some privacy screens and landscaping, including some species which will grow higher than the proposed buildings. It was also pointed out that the proposal relocates the boat brokerage and real estate sales office further to the west.
To ensure the amelioration of potential privacy concerns, the council’s planning officer recommended (and the council imposed) a condition intended to require additional privacy screening. The original drafting of that condition left something to be desired, but has been redrawn.
It was contended, on behalf of Lewiac, that the proposal is acceptable without additional screening. I am of the view however, that the condition is appropriate and ought to be included to ensure that any overlooking is likely to be minimal and not adverse to residential amenity.
It was contended that the proposal would otherwise adversely affect visual amenity by, in effect, being out of place, having regard to the nature and height of development otherwise in this part of the Sovereign Islands.
It is evident that at least some are opposed to apartments being located on the Sovereign Islands, which are otherwise developed exclusively for detached housing. There is however, no warrant in the planning scheme for excluding apartments from the subject site, given that it is largely included in the Local Business Domain within which residential mixed use (including apartments) is anticipated. That the proposal is for a form of development which is different to the detached housing on the islands does not necessarily mean that it will have an adverse impact.
While the proposed buildings would be the only four storey buildings on the Sovereign Islands, they are still low-rise buildings in the context of the Gold Coast.[21] The buildings are not entirely dissimilar in scale to some of the grandiose detached dwellings on the island.[22] Given the height, design and siting of the
proposed buildings and the relative isolation or separation of the site from nearby residences, the buildings will not be overbearing, in the sense that a high-rise development located immediately adjacent to low-rise housing can be.
[21] See definition of ‘low rise building’ in the planning scheme
[22] See ex 3 page 19
Further, as Mr O’Brien pointed out,[23] the design of the building and proposed landscaping addresses aspects of visual amenity by:
[23] See Exhibit 3, p 22
· Minimising the bulk of the building by having flat or low pitched roofs.
· The clear separation of the proposed development into two distinct buildings.
· The articulation of the elevations by fenistration, projecting hanging balconies and the like.
· Siting buildings diagonally on the site.
· The use of materials similar to those of many of the houses on the Sovereign Islands.
· The use of some plant species which will grow higher than the proposed buildings.
· Reducing the footprint and providing larger balconies on the fourth floor level.
· Increasing the set-back from the street and from the canal boundaries.
In the circumstances, I agree with the conclusion of the council’s planning officer that:
“The proposed height, and relative building design elements, complement the development in the surrounding area”.
I do not consider that the proposal would adversely affect visual amenity. It will add well-designed and attractive development, displaying a high degree of architectural merit, at the entrance to the islands. It is, I accept, appropriate to its context.
Some point was sought to be made by the submitters, about previous dealings with
Lewiac, but I am not prepared to attach any significant weight to that.[24]
[24]Luke and ors v Maroochy Shire Council & Anor [2003] QPELR 447 at 472
I am also mindful of the views of those who hold strong fears that the proposal would have a significant detrimental effect. Perceptions are not necessarily irrelevant to an assessment of amenity[25] and the views of those who reside in the area always deserve proper consideration. The fact of opposition however, does not, of itself, call for a refusal. The uses to be accommodated in the development are of a kind which fall within reasonable expectations and are appropriate. I have considered the concerns of the submitters in relation to the form which the development is proposed to take, but I am not prepared to give those concerns decisive weight, given my assessment, on the evidence, of the unlikelihood of any significant detrimental impact.
[25]Broad v Baptist Union [1986] 2 Qd R 317
Traffic issues were investigated by Mr Viney for Lewiac, Mr Healey for the council and Mr Stuart Holland for the submitters. The only two issues which remained in dispute were the adequacy of the layout for manoeuvring by a refuse collection vehicle and the adequacy of the number of car parking spaces provided. The traffic engineers agreed that there was no traffic-related reason to reduce the number of residential units from thirteen to eleven (in accordance with council’s disputed condition) and that there would be no traffic-related impact on amenity.
The refuse collection vehicle issue is one which can be readily accommodated. Only a small area of landscaping would be lost if the layout is amended to provide additional manoeuvring space. Mr Viney gave evidence that refuse collectors would be able to adequately manoeuvre on site but described the situation as ‘tight’.[26] I am satisfied that the proposed SRV space should be widened, by 0.5, m to more appropriately accommodate a refuse collection vehicle.[27]
[26] T148
[27] See Exhibit 6, p 4 and Exhibit 14
It is proposed to provide 50 car parking spaces comprising 12 at grade car parking spaces (including two tandem spaces), 28 secured basement spaces and 10 basement visitor spaces (including one tandem space). Mr Viney gave evidence that, in his opinion, that was sufficient for the application before the court. Mr Healey satisfied himself that the provision would still be adequate even if Lewiac pursued the plan to build additional berths, with some dedicated to exclusive use of the apartments. Mr Stuart Holland, on the other hand, considered the car parking spaces to be inadequate.
Mr Holland’s calculations yielded a requirement of some 71 spaces. He was initially comforted in that conclusion by a site inspection that he carried out on Saturday, 20 May 2006. The parking requirements for the subject proposal, based on that survey, would have been 73 spaces. Unbeknown to him however, Saturday 20 May 2006 was an abnormal day in respect of parking demand. On that day, the brokerage business was conducting a boat show.
The court has long recognised the inappropriateness of using an absolute peak parking demand to calculate the required number of spaces.[28] Although the boat brokerage business conducts a number of such shows in the course of a year, I am not persuaded that the car parking demand should be calculated by reference to such shows. I prefer the evidence of Mr Viney and Mr Healey and am satisfied that the provision of car parking is adequate and will not lead to adverse amenity consequences.
[28] See Friends of Stradbroke Island Management Organisation Inc.v Redland Shire Council (2002) QPELR 315 at 322F and Tower 720 Pty Ltd v Hervey Bay City Council (2003) QPELR 341, 342 K-L
I do not consider that the proposal would have significant adverse effects on the amenity of the locality.
Conclusion
Lewiac proposes to redevelop the subject site, which largely falls within the Local Business Domain, to accommodate a mixture of residential and non-residential uses. The redevelopment would retain and (appropriately) relocate existing non-residential uses in the centre, while adding a new café, to strengthen the opportunities for local community interaction at the business centre. It would also introduce residential use as contemplated by the intent for the domain, in buildings, at the entrance to the islands, which are skilfully designed, displaying a high degree of architectural merit, which would promote a strong sense of place and identity for the local business centre and be appropriate for the location. The development would clearly create a desirable amenity for future occupants and, subject to the imposition of conditions, the proposal is unlikely to be detrimental to residential amenity.
The proposal is appropriate for its unusual location, of substantial merit and overall, is likely to be beneficial. It at least largely complies with the intent for the Local Business Domain and place code. Areas of conflict or possible conflict with the provisions relating to each of the Local Business domain and the Public Open Space Domain (within which part of the site falls) have been discussed as have matters of relevance and the point of conflict. In my view the grounds in favour of the application as a whole are also, on balance, sufficient to justify approving the application notwithstanding the conflicts or possible conflicts, viewed indirectly or collectively.
Lewiac has discharged its onus in the submitter appeal. That appeal will be dismissed. The conditions appeal by Lewiac will be allowed in part. I will adjourn the further hearing of the appeal to allow a new set of conditions to be prepared, having regard to these reasons.
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