Macedonian Orthodox Church v Gold Coast City Council
[2000] QPEC 2
•14/01/2000
IN THE PLANNING AND ENVIRONMENT COURT
HELD AT SOUTHPORT
QUEENSLAND APPEAL NO. 15/1995
[Re The Macedonian Orthodox Church & Cultural Community Gold Coast Inc v Council For City Of Gold Coast & Ors]
Before NEWTON, D.C.J.
BETWEEN THE MACEDONIAN ORTHODOX CHURCH AND
CULTURAL COMMUNITY “SVETA NEDELA”
GOLD COAST INCORPORATED
Appellant
AND COUNCIL FOR CITY OF GOLD COAST
Respondent
AND G R & R C DAWSON & ORS
Respondents by election
REASONS FOR JUDGMENT
Judgment delivered: 14th January 2000
Catchwords: Town Planning – appeal against deemed refusal – application to construct church in Park Residential zone – impact on visual amenity.
Town Planning – whether amended proposal is a minor
modification
Counsel:Mr T Trotter for the Appellant
Mr C Hughes for the Respondent
Miss C J Arnold for the Respondents by election
Solicitors:Wheldon & Associates for the Appellant
King & Co for the Respondent
Witheriff Nyst for the Respondents by election
Hearing Dates: 01 – 05 November 1999
IN THE PLANNING & ENVIRONMENT COURT
HELD AT SOUTPORT
QUEENSLAND APPEAL NO. 15/1995
BETWEEN THE MACEDONIAN ORTHODOX CHURCH AND
CULTURAL COMMUNITY “SVETA NEDELA”
GOLD COAST INCORPORATED
Appellant
AND COUNCIL FOR CITY OF GOLD COAST
Respondent
AND G R & R C DAWSON & ORS
Respondent by election
REASONS FOR JUDGMENT - NEWTON D.C.J.
(Delivered on the 14th day of January 2000)
This is an appeal against a deemed refusal by the respondent of an application for town planning consent for a church on land at the corner of Smith Street and Banyula Drive, Gaven.
The subject site is located some 200 metres from the Smith Street/Pacific Highway interchange at the south western corner of the Smith Street-Banyula Drive intersection. The site is described as Lot 1 on RP 219435 Parish of Nerang and is an area of 1.285 hectares, with road frontages of 100 metres to Smith Street and 115 metres to Banyula Drive.
The site slopes towards a gully and watercourse near the Smith Street frontage. A significant portion of the site has been cleared except for some fringing vegetation. The site is largely (but not completely) screened from Smith Street by vegetation in the road reserve or at the edge of the site’s northern boundary. Access to the site is restricted to Banyula Drive. Excavation and filling have been carried out on the site by the appellant.
Land uses in the locality on the western site of the Pacific Highway are predominantly rural residential in nature. Existing park resident allotments have been largely developed with low set detached houses. Banyula Drive functions as a local park residential collector road which continues along the western side of the Pacific Highway linking the locality to Nerang in the south.
Non-residential uses in the area include a Main Roads Department depot on Banyula Drive approximately one kilometer to the south of the subject site, a SEQEB sub-station on Smith Street immediately to the east of the site and truck parking and commercial activities on at least two nearby lots in Banyula Drive.
The respondent Council resolved on 9 April 1996 to settle this appeal subject to conditions. Condition B.3 of the proposed settlement states:-
“The church is to be of the same height, dimensions, site location and site layout shown in Drawing Nos. C1485:TP:SK30A and C1485:TP:SK26A with the deletion of references to the Community Hall. The floor area of the building is to be less than 590m². The overall height of the building is not to exceed twelve (12) metres with an average height of ten (10) metres”..
An amended Notice of Appeal dated 1 September 1997 was lodged by the appellant and Condition 2 of the Particulars of Conditions of Development was as follows:-
“The church is to be of the same height, dimensions, site location and site layout shown in Drawing Nos. C1485:00:26A and C1485:TP:SK:30A. The floor area of the building is to be less than 600m². The overall height of the building (including dome and bell-tower but excluding the Cross) is not to exceed 17 metres with the bulk of the building at or below the height of ten (10) metres.
The respondent Council did not agree to the amended height of the proposed building.
The proposed building’s horizontal dimensions are 42.2 metres at its longest point and 26 metres at its widest point. The plans submitted by the appellant indicate that the building will incorporate Orthodox Church design features. Car parking areas for 43 vehicles are proposed with the proposed car parks in two groups joined by a driveway running adjacent to the southern boundary. Access to the car park from Banyula Drive is proposed near the southern end of the site’s Banyula Drive boundary.
The layout plan also indicates the position of a storeroom and amenities building located in the south eastern corner of the site. A future church hall and minister’s residence shown on the layout plan are to be the subjects of a possible later application.
The original proposed development was the subject of an application to the respondent Council on 5 May 1994. This proposal was to construct a church with a gross floor area of 1055m² and a maximum height of 29 metres. The layout plan showed a church building and car parking for 70 cars. No church hall or other buildings were shown on this layout plan.
A revised proposal was submitted on 20 June 1994 showing a gross floor area of 580m² and a maximum height of 24 metres (excluding a Cross).
At the time the application was lodged with the respondent the 1988 Albert Shire Planning Scheme was still in force. Notwithstanding this, it has been generally agreed by the parties that it is appropriate to assess this appeal under the provisions of the 1995 Albert Shire Planning Scheme which has now been in force for some four and a half years.
The subject site is currently included in the Park Residential zone in the 1995 Albert Shire Planning Scheme. A place of worship is a use that requires the consent of the Council in the Park Residential zone. It is not in dispute that a church is consistent with the definition of a place of worship.
The intent of the Park Residential zone for the 1995 planning scheme is as follows:-
“4.2.1Intent
4.2.1.1 The intent of this zone is to implement the objections of the Park Residential areas on the strategic plan, and to provide areas wherein dwelling houses can be erected on small rural allotments for the purpose of low density residential living without all normal urban facilities; however, connection to town water is a pre-requisite for development of these areas;
4.2.1.2The area may include some rural pursuits (less than the rural area) provided that residential amenity is not interfered with. While the provisions of the Park Residential zone allow for some non-residential land use such as churches and child care centres, the scale and intensity of any such development which is permitted must be consistent with the low density residential character intended for these areas.”
The intent of the zone, then, clearly envisages the establishment of churches in the Park Residential zone. However, the scale and intensity of any church are required to be consistent with the low density residential character of the area and therefore the size, bulk and height of the proposed church building are required to be consistent with nearby development and the intensity of the use (including traffic generation) is required to be appropriate to the location. Thus, careful consideration of building design, site locality, landscaping and operations is required.
Under the Strategic Plan the site is designated Park Residential. Park Residential Objective 2 seeks to promote and preserve a high standard of amenity and convenience in Park Residential areas. The implementation clause applicable to this objective is in the following terms:-
“Applications for the development in Park Residential areas will be considered in the context that the residential amenity of Park Residential areas is intended to be of a very high order. While the provisions of the Park Residential zone allow for some non-residential land uses, such as churches and child care centres, the scale and intensity of any such development which is permitted must be consistent with the low density residential character intended for these areas”.
Development requirements for a range of uses including a place of worship are set out in section 12.10 of the Planning Scheme. For sites in the Park Residential zone, the requirements include:-
·Maximum site coverage of all buildings over structures and associated car parking areas does not exceed 50%;
·Building height does not exceed two storeys;
· At least a ten (10) metres wide landscape set back to all road frontages;
· Solid fencing to adjoining boundaries to residential houses.
Section 14.2 of the Planning Scheme requires that car parking spaces are to be provided for a place of worship at the rate of one space per 10 square metres of total use area.
The public notification of the Town Planning Consent Application resulted in 177 objections being lodged with the respondent Council. These objections represented 104 households and most of the objectors are located within one kilometer of the subject site.
Section 14.7.1 of the Planning Scheme provides that in considering development applications for buildings with a maximum height to ceiling level of the uppermost level of greater than 7.5 metres above the average finished ground level, careful evaluation will be exercised in relation to architectural design to ensure that a high standard of development is maintained, consistent with the overall character of the planning scheme area.
Under a town planning scheme a land owner must generally be taken to contemplate that a nearby parcel of land will be put to one of the uses to which that land may be put as of right, and also that a parcel of land may come to be put to one of those uses permitted with the consent of the local authority: Bell v Noosa Shire Council [1983] QP LR 311 at 313.
In this appeal the concept of the proposed church is not seriously questioned, nor is the gross floor area of the proposed church. The main issue giving rise to serious consideration is the proposed height of the building which includes the towers and domes. The appellant contends that the height should be permitted to reach 17 metres. The respondent contends that the height of the building should be limited to 12 metres. The respondents by election variously contend for a height of 7.5 metres or for 10 metres.
Mrs Argent, a respondent by election, expressed concern that the 17 metres height of the proposed church would be inappropriate for such a rural area and that the proposed building would not be consistent with the existing buildings (mainly houses) constructed in the area.
Mrs Munari, another respondent by election, also stated that in her belief the proposed church was too high for the area. Similar views were expressed by Mr Dawson and Mr Seccombe. I accept that the views expressed by these respondents by election are genuinely held by them.
It is contended by the appellant that those parts of the building that may fairly be considered as high are isolated architectural features and not the unbroken envelope of the building itself. In my view, it is the case that when regard is had to the drawings in Appendix C of Exhibit 1, the major part of the building lies below the 10 metres height with the bell-towers being above that level. However, the term “building height” as defined in the Planning Scheme (page 19.3) includes the distance measured vertically from natural ground level to the highest point of a building, including projections such as architectural features. Accordingly, the height of the proposed building must be assessed by including the “isolated architectural features” which largely relate to the two proposed bell-towers and Cross.
The Planning Scheme limits places of worship to a height not exceeding two storeys. The scheme fails to include any definition of “storey”. Whilst the proposed building is to be constructed in a single storey, the proposed height of 17 metres, together with a Cross of 2 metres in height, is significantly taller than a two storey house, which would not usually exceed 8.5 metres with a ceiling height of about 7.5 metres in accordance with the relevant provisions in the Town Planning Scheme.
Mr Ryter, a Town Planning Consultant who testified on behalf of the respondent, expressed the view that the 12 metre maximum height contended by the respondent would be acceptable from a Town Planning perspective, given that the subject land is lower than that adjoining to the south. Mr Ryter’s view is predicated upon all of the landscape buffer requirements proposed by the respondent being complied with. Mr Ryter considers that current community expectations with respect to amenity (as raised in the relevant planning documents) would militate against approval of a structure any higher than 12 metres. He points out that the average height of the proposed building, being 10 metres, is roughly equivalent to a three storey building in an area of predominantly one and two storey buildings.
Mr Perkins, a Town Planning Consultant who testified on behalf of the respondents by election, points out that the proposed building is unlike any other building in the locality and does not display a residential character. The building will be visually prominent and this will be exacerbated by its ornate appearance. Mr Perkins considers that the site is at an entry point to a significant park residential area and residents will therefore pass the church on a regular basis. For example, residents driving east along Castle Hill Drive will see the church as they approach Banyula Drive. In Mr Perkins’ opinion, the height, bulk and design of the proposed building will detrimentally impact on the visual amenity of the immediate area and residents living in the locality.
A contrary view was expressed by Mr Parker, a Town Planning Consultant called by the appellant, who stated that, having regard to the location of the site relative to surrounding development in terms of topography, existing and proposed visual screening and orientation of nearby dwellings, the 17 metres height limit does not so offend the intended low density residential character of the surrounding area to the extent that the proposal is inconsistent with that character.
In my view, the construction of a 17 metres high building as proposed by the appellant would adversely impact on the visual amenity of nearby residents. However, this impact can generally be satisfactorily reduced by existing and proposed landscaping measures to ensure that only broken occasional views of the bell-tower or domes will be visible if the height of the church is limited to 12 metres. I do not accept that landscape measures can adequately soften views of the bell-towers and domes if the building is constructed to a height of 17 metres.
Such a restriction on the height of the proposed building would not appear to be inconsistent with drawings lodged by the appellant on or about 10 January 1995 which showed a maximum height of 12 metres with the main roof area being 10 metres. There is some dispute by the appellant in relation to the lodging of such drawings, and it is further suggested by the appellant that theological reasons exist which would not permit a building of such a height to be consecrated. Notwithstanding these matters, I remain of the view that it is appropriate to restrict the impact upon the visual amenity of residents in the locality by limiting the height of the church building to 12 metres.
The Car Parking Arrangements
The appellant proposes in its Condition 9 that twenty-one off-street parking spaces are to be located to the east (at the rear) of the church, and a further twenty-one off-street parking spaces are to be located on the Banyula Street side of the church, which latter car park will be leveled into the slope adjacent to Lot 2 RP 219435 with a brick retaining wall constructed at the appellant’s’ expense.
The respondent proposed that off-street parking should be located to the east of the church to minimise interference to neighbours. It is clear that the residence potentially most impacted upon by the proposed car parking, is that adjoining the subject land to the south. The appellant’s proposal seeks to locate nineteen car parking spaces adjoining the common boundary of that property. Eleven of those spaces are proposed within 4 metres of the main property boundary. Views were expressed by Mr Parker and Mr Moore (an Environmental Noise Engineer) that the topography of the site together with the proposed brick wall, indicate that the car parking on the western side of the site is appropriately located. However, I prefer the view expressed by Mr Ryter in this regard that the relocation of car parking as proposed by the respondent is appropriate from an amenity perspective, removing car park areas away from potentially affected residences, and from view from Banyula Drive. This would permit the addition of a further landscaping buffer to be positioned to the west of the church, thus providing further screening of the building from Banyula Drive and Castle Hill Drive. Having said that, however, I should make it clear that I accept the submission by Counsel for the appellant that there is no requirement in the Planning Scheme, either expressed or inferred, by which it can be said that any development must be invisible. The plan does not envisage that any development must be totally screened from view. What is envisaged, in my opinion, by the Planning Scheme, is that impacts upon visual amenity may in appropriate cases be restricted by requiring the provision of landscaping to soften and break up views of a proposed development.
Landscaping
The appellant proposed a 6 metre landscaping buffer along the Banyula Drive frontage of the subject land. I understand that the appellant now has no objection to providing a buffer 10 metres wide along this frontage of the site, and, in my view, it is appropriate that the wider buffer of 10 metres be provided. In fact, the Planning Scheme at s.12.10.1 requires a 10 metres landscaped set-back from all road frontages. As the allotments in Banyula Drive opposite the subject site are used for residential purposes, I accept that it is important, from a visual amenity perspective, that the Planning Scheme requirement for 10 metres of landscaping along the Banyula Drive frontage is complied with.
The appellant proposes a 4 metres wide landscape strip, together with a solid brick 2 metres high fence along the entire southern boundary of the subject land. In my view, having regard to the location of the proposed church, it is appropriate to require a 6 metres average wide landscaped strip along the entire southern boundary of the subject land, together with a solid brick 2 metres high fence along that boundary. This requirement, in my view, is appropriate having regard to the proximity of the proposed church building to its southern boundary. The necessity of positioning the building so close to this boundary has been brought about by the installation and consecration of a foundation stone by the appellant. I understand that this stone is unable to be re-positioned for theological reasons.
Minor Modification
Counsel for the respondents by election have raised the question as to whether the current
proposal represents a minor modification of the original proposal.
The differences between the original and current proposals have been conveniently tabulated in the written submissions of Miss Arnold, as follows:
| ITEM | ORIGINAL PROPOSAL | CURRENT PROPOSAL |
| Building height | 29m | 17m plus 2m Cross |
| Building dimensions | 50m x 36m | 37m x 26m |
| Gross floor area | 1055m² | 590m² |
| Building orientation | North - South | East – West |
| Distance of building from Banyula Drive | 57m | 42.4m |
| Building appearance | Differences in design detail | |
| Location of site access on Banyula Drive | 40m from intersection with Smith Street | Much closer to the southern boundary |
| Location and number of carparking spaces | 70 carparks in the south-western corner | 43 carparks in two areas – near boundary with adjoining residence and behind church |
| Landscaping - Banyula | 6m | 10m |
| Landscaping - Southern | 4m | 4m minimum, average 6 |
| Landscaping - Eastern | 3m | 2m |
| Amenities/storeroom | Not shown | Located near north-eastern corner |
I accept that this Court has a limited power to approve a re-zoning proposal which differs from that submitted to the local government. The source of this power is s.7.1A (4) of the Local Government (Planning & Environment) Act 1990, or possibly s.7.1A (3B) of that Act. The limits upon the power are derived by analogy from s.4.15 of the Act, or by implication are to be found in that section: Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qld.R 35 at pp 37-38 per Fitzgerald P and at pp 42-43 per Pincus J.A.
In deciding an application to modify made to it pursuant to s.4.15, the Court may approve an application, or approve it subject to conditions, or refuse to approve it. The Court may not approve an application to modify where in its opinion the modification is not of a minor nature; or, in its opinion the modification would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection.
In the absence of an exhaustive definition of what constitutes a minor modification, the Court has articulated a judicial test which requires the Court to look at the proposed amendment broadly and fairly in order to determine whether it is of such consequence that public notice should be given to it. If the Court concludes that the proposed amendment is not materially different from the original, then clearly the appellant should not be put to the trouble and expense of giving further notice. (Texbeam v Brisbane City Council & Ors (1995) QPLR 108 at pp 109-110 per Helman D.C.J. as he then was).
In my view, the circumstances surrounding the proposed modification in this case do not result in the application representing a materially different proposal, and the amended proposal should be understood as constituting a minor modification. In particular, I am satisfied that those residents most likely to be affected by the issue of the visual character of the proposal are already involved in the appeal. I am unable to see that the proposed amendments would be likely to provoke objection which would not, in the light of the original proposal, have been forthcoming.
Conclusion
I am satisfied on the evidence placed before me that those conditions proposed by the respondent relating to building height, car parking and landscape buffers, are appropriate to ensure an acceptable level of amenity for adjoining and nearby residents. They should, in my view, be complied with.
In these circumstances, then, the appeal must be dismissed.
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