Maher v Hervey Bay City Council
[2008] QPEC 123
•2 December 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Maher v Hervey Bay City Council & Anor [2008] QPEC 123
PARTIES:
PETER and SOFIA MAHER
(Appellants)
v
HERVEY BAY CITY COUNCIL
(Respondent)
and
GRAHAM JENNINGS
(Co-Respondent)
FILE NO/S:
3079 of 2006
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
2 December 2008
DELIVERED AT:
Brisbane
HEARING DATE:
14 October 2008
JUDGE:
Judge Searles DCJ
ORDER:
THE APPEAL IS DISMISSED.
COUNSEL:
M. Hinson SC – Appellant
M. Williamson - Respondent
SOLICITORS:
Carswell and Company – Appellant
Connor O’Meara Solicitors - Respondent
This is an appeal against the Council’s failure to decide a development application for a development permit for a material change of use on land described as Lot 1 on RP 230593 situated at 233 Charlton Esplanade, Pialba, Hervey Bay, Queensland. The proposed development is for holiday accommodation which will include 52 residential units being a mix of 1 and 2 bedroom units, recreational facilities including a gym, sauna and swimming pool, basement car parking for 64 cars with vehicular access via Hythe Street. The Co-Respondent did not take part in the appeal.
An important time line is:
No Date Event 1 22 December 2004 Application made to Council 2 18 March 2005 – 14 April 2005 Public notification of application 3 April 2005 Council’s 2006 IPA Scheme publicly notified 4 13 April 2005 Expiration of decision making period and point of accrual to Appellants of right to appeal on the grounds of a deemed refusal. 5 18 October 2006 Appeal filed under s 4.1.27 of Integrated Planning Act 1997 (IPA) against the Council’s failure to decide the application 6 27 November 2006 Council notification to Appellants of its reasons for opposing the development application 7 15 December 2006 Council adopted its IPA Planning Scheme replacing its 1996 Transitional Planning Scheme There is a more detailed chronology set out in Exhibit 7 detailing all relevant steps but the above are the important ones.
As can be seen, both the application was lodged and the present appeal commenced before the introduction of the Council’s 2006 IPA Planning Scheme[1] 2006 Scheme which replaced the 1996 Hervey Bay City Transitional Planning Scheme[2] (1996 Scheme). Further, the 2006 Scheme was publicly notified in April 2005, some four months following the lodgement of the application and was adopted on 15 December 2006 two months after the filing of this appeal on 18 October 2006. The appeal was filed some 15 months after the right of appeal accrued at the expiration of the decision making period on 13 July 2005. Eighty-eight submissions including a petition were received objecting to the proposal.
[1]Exhibit 9.
[2]Exhibit 8.
As the application was made when the now superseded 1996 Scheme was in force, it falls to be decided under s 4.13(5) and (5A) of the repealed Local Government (Planning and Environment) Act 1990 (PEA).[3] Under that scheme the land was:-
(a)In the Urban Residential preferred dominant land use designation under the Strategic Plan;
(b)In the Residential Medium Density zone; and
(c)In the Multi-Unit Development area under DCP figure 1.
[3]IPA, s 6.1.30(3)(b).
Subject Site
The land is located in Pialba a suburb of Hervey Bay with frontages to Charlton Esplanade (approximately 37 m), Beach Road (approximately 20 m) and an unmade section of Hythe Street (approximately 95 m) which is currently an open drainage channel.
The site is presently vacant having been filled some years ago hence its present relatively flat topography. The only vegetation on it is a palm tree and two Norfolk Island pines on the Charlton Esplanade boundary all of which are nominated for removal as a part of the application.[4]
[4]Exhibit 2, para 2.1; Exhibit 5, paras 1.2.2 and 2.4.5.
The proposed development has a north easterly aspect with the proposed units looking out over the water of the Bay. Access to the car park is via Beach Road and runs along the southern boundary. It is proposed that that boundary be buffered with Lillypillys growing to 5-6 m in height.[5] That is designed to minimise any impact on the two storey development to the south adjoining that boundary.
[5]Exhibit 3, Appendix 1.
Surrounding Land
Charlton Esplanade runs from Point Vernon, past Pialba, South East along the length of the Hervey Bay foreshore to Urangan and is a major tourist vehicular route connecting the Hervey Bay villages of Point Vernon, Pialba, Torquay, Scarness and Urangan. The drive from the site to Urangan evidencing a serrated building skyline, the product of a variety of building heights. East from the Charlton Esplanade boundary on the opposite side of the Esplanade is a foreshore area with some trees forming part of the Esplanade Reserve. There are no tall eucalypt trees in that area as there are in other parts of the foreshore esplanade because, in the view of Mr Chenoweth, a landscape architect called by the Council, the land form in the area is lower than other parts of the esplanade which are on dune ridges and the subject land and adjoining shore line appeared to him to have been a small creek or inlet probably with some mangroves and coastal she-oak rather than eucalypts.[6] Whatever would be the reason there is a gap in the foreshore vegetation opposite the Charlton Esplanade frontage.[7]
[6]Exhibit 5, para 1.2.3.
[7]See report J Neales, Exhibit 3, figure 15, p 32.
To the south east of the site along Charlton Esplanade towards Urangan is a mix of medium to high density unit developments interspersed with one and two storey houses with the unit developments varying in height from two and three storeys up to four and six storeys. Approximately 200 m to the south east of the subject site is a newly constructed six storey plus a roof top unit development, Tingeera at 241 Charlton Esplanade which is adjoined to the south east by a four-five storey development Waimarama at 242 Charlton Esplanade.
Running parallel to Charlton Esplanade to the south is Watson Street and moving along Watson Street south east towards Urangan, on the corner of Charles Street one finds a six storey building RSL/Leading Edge at 46-52 Watson Street. Between that building and the subject site, apart from the developments I have identified, there are three other sites the subject of approvals for, as yet unbuilt, unit developments of between four and six storeys in height. The first one is an Panoptic/Moretons by the Bay at 20-24 Watson Street approved on 5 October 2005 (amended 7 November 2007) which I infer from Mr Schomburgk’s report[8] is approved for between four and six storeys. The next is Herbay at 249 Charlton Esplanade approved on 27 February 2008 for a six storey unit development. The last one is the Asset Loans/Huntingdon/Piltam at 255 Charlton Esplanade approved on 1 December 2005. Again I infer that this approval is for between four and six storeys.
[8]Exhibit 2, para 2.2.7.
To the south along Beach Road is a mix of houses and town house developments,[9] whilst to the west one finds primarily detached housing with a number of small scale townhouse developments. To the north west along Charlton Avenue there is a mix of older houses and some newer and renovated homes many of two storeys in height.
[9]Exhibit 2, figure 2.
Away from that cluster of Charlton Esplanade/Watson Street developments and approved sites, between the last of those, being the RSL/Leading Edge six storey unit development at 46-52 Watson Street, and the end of Charlton Esplanade at Urangan before it turns south towards the boat harbour are other unit developments. Mr Schomburgk identified ten of four, five, seven and eight storeys respectively and six of six storeys. Additionally there were two further developments of six storeys and five storeys respectively set back from Charlton Esplanade in Torquay and Totness Streets respectively.[10] That, hopefully gives some picture of the, so-called, tourist strip from Urangan to Pialba.
[10]Exhibit 2, figure 4.
The Council says the appeal should be dismissed because:
(a)The proposal is in conflict with the 1996 Scheme because of its height;
(b)It is in conflict with the Council’s new 2006 IPA Planning Scheme;
(c)The proposal, if approved, will cut across a number of important strategic planning decisions embodied in the 2006 Scheme; and
(d)There are no planning grounds, or planning grounds of sufficient weight to warrant approval of the application despite the above conflicts with the planning documents.[11]
[11]Council’s written submissions 17 October 2008, para 4.
The appellant’s case is that the proposal complies with the 1996 Scheme, that no weight should be given to the 2006 Planning Scheme and, in any event, if there was any conflict between the proposal and either of the 1996 or 2006 Schemes there are sufficient planning grounds to justify approval despite the conflict.[12]
[12]Appellant’s written submissions 20 October 2008, para 9.
Strategic Assessment Regime
Because the application was made pursuant to the now superseded 1996 Scheme, the transitional provisions of IPA apply and it is to be assessed pursuant to IPA s 6.1.29(3). Section 6.1.29 relevantly provides:
“6.1.29 Assessing application (other than against the Standard Building Regulation)
(1)This section applies only for the part of the assessing aspects of development applications to which a transitional planning scheme or interim development control provision applies.
(2)…
(3)Instead, the following matters, to the extent that the matters are relevant to the application, apply for assessing the application:
(a)The common material for the application;
(b)The transitional planning scheme;
(c)The transitional planning scheme policies;
(d)Any planning scheme policy made after the commencement of this section;
(e)All state planning policies;
(f)The matters stated in s 8.2(1) of the repealed Act;
(g)…
(h)…
(i)Any other matter to which regard would have been given if the application had been made under the repealed Act.”
Following assessment pursuant to s 6.1.29(3), the application is to be decided pursuant to s 6.1.30 which relevantly provides:
“6.1.30 Deciding applications (other than against the Standard Building Regulation)
(1)This section applies only for the part of the deciding aspects of development applications to which a transitional planning scheme or interim development control provision applies.
(2)…
(3)Instead, the assessment manager must, if the application is for development that before the commencement of this section would have required an application to be made under any of the following sections of the repealed Act:
(a)…
(b)Section 4.12(1) – decide the application under s 4.13(5) and 4.13(5A).
Section 4.13(5) and (5A) of the repealed PEA provide:
“Section 4.13
(5) In deciding an application made to it pursuant to s 4.12 a local government is to:
(a) Approve the application; or
(b) Approve the application, subject to conditions; or
(c) Refuse to approve the application.
(5A)The local government must refuse to approve the application if:
(a)The application conflicts with any relevant strategic plan or development control plan; and
(b)There are not sufficient planning grounds to justify approving the application despite the conflict.”
Issues to be determined
The issues for resolution are these:
(a)Whether the proposed development is in conflict with the 1996 Scheme;
(b)In the event that conflict is found between the proposal and the 1996 Scheme, whether there are sufficient planning grounds to warrant approval notwithstanding that conflict.
(c)Whether the proposed development is in conflict with the 2006 Scheme;
(d) The weight, if any, to be given to the 2006 Scheme; and
(e)In the event that weight is given to the 2006 Scheme and conflict is found between the proposal and that Scheme, whether there are sufficient planning grounds to warrant approval notwithstanding that conflict.
In asserting non-compliance with the 1996 Scheme the Council says the proposal would be incompatible with the perspective scale and character of nearby residential areas in breach of the Strategic Plan, descending to specifics in relation to height and site coverage to seek to demonstrate the proposal conflicts with that scheme.
Principles governing Interpretation of Planning Schemes
The principles relevant to the construction of planning schemes were usefully summarised by Britton DCJ in Westfield Management Ltd v Pine Rivers Shire Council[13] as:
[13](Unreported) Planning & Environment Court Brisbane 14 November 2003 1627/03 at pp 8-9; see also Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at [271]-[272]
“(a)They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council [1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318);
(b)They should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPELR 447);
(c)They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (SUPRA); Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370; Acts Interpretation Act 1954 s. 14A);
(d)In the light of the proscription against prohibiting development contained in IPA (s 6.1.2 (3));
(e)Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degree v Brisbane City Council [1998] QPELR 287);
(f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 at 230;
(g)A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA);
(h)Although planning documents have the force of law they are not drawn with the precision of an Act of parliament;
(i)A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212;
(j)Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).”
CONSIDERATION OF DISPUTED ISSUES
Whether there is any conflict with the 1996 Transitional Planning Scheme.
The 1996 Scheme, relevantly, comprises a Strategic Plan, Zoning Provisions andDevelopment Control Plan No. 1 (DCP-1). The scheme was gazetted on 29 March 1996 and became the Hervey Bay City Transitional Planning Scheme on 30 March 1998.[14]
[14]Exhibit 8.
STRATEGIC PLAN
The following provisions of the strategic plan were identified by the parties as relevant:
“s 1.1.4
PREFERRED DOMINANT LAND USE CATEGORIES – STATEMENTS OF INTENT
“s 1.1.4.1
URBAN RESIDENTIAL
Urban Residential areas include existing and proposed areas of predominantly urban residential land use. It is intended that this housing will be mainly detached on 600-800 m2 lots, with areas of higher density at appropriate locations.
s 1.2
OBJECTIVES AND IMPLEMENTATION CRITERIA
1.2.1
URBAN RESIDENTIAL
1.2.1.2
To ensure a supply of Urban Residential land sufficient to cater for the accommodation requirements of the future population of the city.
Implementation
(i)By concentrating the thrust of Urban Residential development into a relatively limited number of locations which are accessible to urban services and facilities and which are likely to achieve a market acceptance as residential localities …
(ii)While most Urban Residential land can be expected to be developed for dwelling houses on both conventional and smaller allotments, various forms of higher density housing will be permitted in suitable areas, subject to proper development controls …
s 1.2.1.4
To encourage and ensure a high standard of amenity in Urban Residential areas in particular through the promotion of the qualities of quiet, safety, visual attractiveness, privacy, clean air and access to parklands.
Implementation
(ii)In order to protect the amenity of residential areas in considering development proposals in or near existing or proposed residential areas, the Council will take into account:
(a)…
(b)…
(c)Whether the proposed buildings, structures, and/or other visible aspects of the development would be compatible with the existing or prospective scale and character of nearby residential areas, and the effectiveness of the proposed design and landscaping of the development, and/or of an intervening buffer in reducing any adverse potential visual impact.
(d)…
(e)Whether the proposal would reduce the privacy of detached houses nearby.
In the consideration of questions of amenity, particularly for new residential development proposals, the basis of evaluation shall be primarily the prospective amenity of the area taking into account the provisions of the Strategic Plan and the zoning of the land that apply to the area.
(iii) …
(iv) …
(v) …
(vi)Where practicable, Council will encourage the concentration of tourist development, including tourist residential accommodation, at appropriate locations, avoiding the disruption of distinct permanent residential communities.
s 1.2.1.6
To provide for a range of housing styles and opportunities, to meet the varied needs and preferences of the community while at the same time ensuring that appropriate standards of development are retained throughout.
Implementation
(i) …
(ii) …
(iii) …
(iv) …
(v)Within parameters set out in relevant Development Control Plans Council will encourage a range of building height provisions throughout the city which will minimise detrimental visual impacts on the Great Sandy Region and urban character, visual, privacy and shadow impacts on the local community.
s 1.2.16
General Objectives applicable to all preferred dominant land use designations
1.2.16.4
To ensure that development does not occur in a manner or at a density which will pose a threat to the health or wellbeing of the community.
s 1.2.16.9
To avoid development which detracts from the natural scenic qualities of the Great Sandy Region
Implementation
(i)Development adjacent to the foreshores and along ridges which are visible from Hervey Bay and the Great Sandy Strait have the potential to detract from the scenic qualities of the area. Building development shall not be permitted to intrude visually into the Great Sandy Region, and the Planning Scheme includes specific controls on the height of buildings (refer to sections 3.3 and 4.2.10).”
ZONING PROVISIONS
The relevant zoning provisions are:
“PART 3 – ZONING PROVISIONS
3.2.2 Residential Medium Density
3.2.2.1 Intent of Residential Medium Density Zone
The intent of the Residential Medium Density Zone is to provide for a variety of residential housing forms including multiple unit developments at varying densities and locations. Land so zoned has the benefit of proximity to existing community facilities (such as shops, personal services, and recreational facilities, and employment centres.
Dwelling houses are permitted within the zone as are other forms of low density residential development (e.g. dual occupancy developments and integrated housing developments) although these are subject to the imposition of development conditions. Higher density multiple unit development such as apartments, home units and the like are permitted subject to the imposition of development conditions. …
s 3.3DEVELOPMENT REQUIREMENTS WITHIN ZONES
3.3.1Residential Zones
3.3.1.1Site Coverage
Purpose
To facilitate the creation of a pleasant living environment by the provision of adequate open space around buildings.
Provisions
(a)The total site coverage of all residential buildings in any Residential zone shall not exceed the limits set out in Table 3.3.1 below, or as may be otherwise specified in a Development Control Plan.
(b)…
| TABLE 3.3.1 – Maximum Site Coverage of Residential Buildings in Residential Zones | |
| Height of Building in Storeys | Site Coverage as a percentage of total site area |
| One | 50 |
| Two | 40 |
| Three | 35 |
| Four | 30 |
| Five | 25 |
| Six | 20 |
S 3.3.1.2Building Height
Purpose
To ensure that buildings and/structures are not erected in a manner which will adversely affect the amenity of neighbours, or of the locality as determined by community values, or the broader natural landscape.
Provisions
Subject to sub-section 4.2.10, the maximum height of buildings shall not exceed two storeys or 7.0 m above ground level unless otherwise approved by Council by way of its Consent granted pursuant to any Development Control Plan, provided that no building shall exceed six storeys in height.
s 3.3.1.5Building Design
Purpose
Building design should be undertaken so as to compliment the surrounding area with the aim of achieving development which is visually compatible with the existing streetscape character and to create a high quality overall environment.
Provisions
Building design should be undertaken having regard to the following:
(a)…
(b)…
(c)…
(d)…
(e)The development should be designed in a manner so that building height is compatible in scale with surrounding residential development …
PART 4 – GENERAL DEVELOPMENT REQUIREMENTS
s 4.2.10 RESTRICTION ON BUILDING HEIGHT
4.2.10.1Subject to compliance with the following provisions, the absolute maximum building height shall be six storeys above ground level.
4.2.10.2No more than one storey should extend above the general height of foreshore vegetation as seen by an observer at Point Vernon, Urangan Pier or at water level on the Great Sandy Strait.
4.2.10.4Above the general height of foreshore vegetation, landscaping and/or natural or visually recessive building colouring and materials may be required to minimise the visual impact of any development on the broader regional landscape as seen from Hervey Bay or the Great Sandy Strait.”
DEVELOPMENT CONTROL PLAN NO. 1
The relevant provision of Development Control Plan No. 1 are:
“INTRODUCTION
(1)The intent of this Development Control Plan is to … control the height of all types of buildings with the aim of preserving the visual and urban amenity of areas as they are developed for residential, commercial and business uses.
(2)…
(3)All development within the development controlled plan area will be limited to two storeys except as may be permitted by special provisions set out in this plan.
(4)The plan sets out concessions which may be given by way of permitting additional storeys to buildings where specified site conditions are met.
(5)The plan sets out limitations to density of development of certain land.
(6)Nothing in this Development Control Plan should be construed to confer any rights to use land, such rights remain vested in the provisions of Part 3 of the Planning Scheme.
(7)Where there is any conflict between the provisions of this Plan and those of the Strategic Plan the latter shall take precedence;
(8)The building height provisions of this Plan shall be read subject to the provisions of Parts 3 and 4 of the Planning Scheme.
3.OBJECTIVES AND IMPLEMENTATION PROVISIONS
The objectives of the Development Control Plan are as follows:
(1)…
(2)Objective 2:
To control the height of all buildings and other structures within the Development Control Plan area regardless of their uses by relating the number of storeys to the size, nature, locality and accessibility of the project and its site and surrounding development.
Implementation:
(a)Council will not give its consent to the height of any building or other structure regardless of its use exceeding 7 m or two storeys in height above natural ground level except where the building and its site meet the site coverage requirements set out in Table 1 hereunder.
TABLE 1
Maximum Site Coverage to Apply to all Buildings Within Development Control Plan – 1
| No. of Storeys | Maximum Permissible Site Coverage Expressed as a Percentage |
| 1 | 50 |
| 2 | 40 |
| 3 | 35 |
| 4 | 30 |
| 5 | 25 |
| 6 | 20 |
”
It can be seen from the above provisions that development of the type he proposed is contemplated within the area where the site is located subject to proper development controls. Notwithstanding that, by reference to the above provisions of the Strategic Plan, Zoning Provisions and DCP-1, the Council says the proposal is in conflict with the 1996 Scheme. Before addressing that however, I shall deal with another important issue.
Meaning of Nearby Residential Areas?
A threshold issue for determination in considering the existing and perspective scale and character of nearby residential areas and any impact the proposal may have upon the amenity of those areas, is just what areas the Strategic Plan refers to. Both witnesses for the Council, Mr Buckley, town planner,[15] and Mr Chenoweth, landscape architect,[16] regarded Beach Road as marking the boundary between the predominantly low density residential development to the north and west of Beach Road and the higher density development to the south east along Charlton Esplanade. In Mr Chenoweth’s view the term urban residential areas referred to in s 1.2.1.4 of the 1996 Scheme Strategic Plan was intended to refer to the area to the west and north west of Beach Road comprising the predominantly low rise detached residential dwellings and that the low rise character was intended by the planning scheme to be retained.[17] In support of that view he made the point that the roundabout opposite the site’s Charlton Esplanade boundary marked a significant point in the area. He said the shoreline’s natural topography and built form of the coastal strip changes in character at Beach Road in that the north facing beach sweeps more northerly, the dune ridges are reduced and the land form becomes flatter. Also the road itself changes direction. He sees the Beach Road – Charlton Esplanade Intersection as marking the north western end of the tourism related unit developments to the east of Beach Road marking the start of almost exclusively low rise detached residential development of Point Vernon.[18]
[15]Exhibit 4, Appendix A, para 4; transcript 3.63, lines 55-60, 3.64, lines 1-20.
[16]Exhibit 5, paras 2.2.3 to 2.2.5; transcript p 3.32, line 58, p 3.52 lines 25-35.
[17]Exhibit 5, para 2.3.2.
[18]Exhibit 5, para 2.2.5.
Not surprisingly the appellants took a different view. Both Mr Schomburgk, the appellant’s town planner and Ms Neales, their landscape architect considered that the gaze for the purpose of considering the existing or perspective scale and character of nearby residential areas should not be confined to the west and north west of Beach Road but should extend to the south and the east which would take into account the higher density development in those areas.[19] The reference to the eastern aspect is what I have described above as south east which I think is strictly the correct direction. In any event their view is that the developments and approved sites I have set out above to the south east of the site should be taken into account. In their opinion, when one comes to consider the proposal by reference to that enlarged area it would be compatible with nearby residential areas.
[19]Exhibit 2, paras 4.1.4 to 4.1.7; transcript p 2.33, lines 20-35, Exhibit 3, paras 28-33.
Bearing in mind that at present I am only considering the proposal in the context of the 1996 Scheme it is true that, at the present time, Beach Road marks some form of boundary between the developments of between two to six storeys actually constructed and approved to the south east along Charlton Esplanade and Watson Street and the subject site. Across Beach Road to the south of the site is an existing two storey development.[20] Under the 1996 Scheme by reference to the DCP-1 map,[21] the subject site was within the Multi-Unit Development Area and there is nothing in that scheme referred to me which supports the argument that Beach Road was somehow a cut-off point for further higher density development to the west and north-west. At some point in the life of any plan a street may well mark the boundary of development to that point but, to my mind, there will usually be more required to establish such a boundary than simply the current extent of development. Likewise, in relation to the boundaries of the relevant urban residential areas Mr Chenoweth says the Strategic Plan intends, again, had that demarcation been intended by the authors of the 1996 Scheme, I would have expected to find something in the plan to that effect. At the end of the day I am not persuaded that Beach Road enjoys the demarcation line status contended for by the Council. Minds will differ on the matter but, for what it is worth, during the inspection of the site and surrounds on first day prior to any evidence being received I thought the open drainage channel being the extension of Hythe Street adjoining the site seemed a natural boundary separating the low rise from the higher density but again the plan does not reflect that. Obviously my view is not evidence but it is an example of the fact that minds will differ. I prefer the evidence of Mr Schomburgk and Ms Neales on this issue. As to the extent of the Urban Residential Area one must take into account when considering amenity, I think the approach of Mr Chenoweth is too narrow. To simply turn one’s back on the development along Charlton Esplanade and Watson Street is, I think an unduly limiting perspective. True it is, to the north and north west the residential development is low rise but that is only part of the picture. Again I prefer the evidence of Mr Schomburgk and Ms Neales on this issue.
[20]See Exhibit 2, figure 3, p 33.
[21]Exhibit 2, p 41.
Alleged Conflict with 1996 Scheme
The Council relies on s 1(3) of DCP-1 limiting all development to two storeys except as permitted by special provisions in the plan s 1(8) of DCP-1 renders the height provisions subject to Parts 3 & 4 of the Planning Scheme.[22] It says the proposal falls short of satisfying the pre-conditions to height relaxation beyond two storeys by reference to the following. Objective 2 of the DCP-1 outlined in paragraph 24 makes it clear that Council consent will not be given beyond two storeys except where site coverage requirements are complied with. According to Table 1 in DCP-1 Objective 2 the maximum permissible site coverage for a six storey building is 20%.[23] Mr Schomburgk acknowledged that the site coverage was 22%.[24] On the issue of site coverage he concluded in his report that the proposal complied with Table 1 above referred to.[25] Two things may be said as to that conclusion which, in my view, is incorrect. Firstly Mr Buckley and Mr Schomburgk agreed that site coverage, “of itself”[26] was not an issue in this appeal and was not likely to warrant refusal. Secondly, in his evidence Mr Schomburgk relied upon what he understood from his experience was the practice of the Council under the DCP when considering a development of partly five storeys and partly six. He said that the Council required compliance with the 25% site coverage requirement in relation to the five storey component and 20% for the six storey component but acknowledged that that interpretation may not be correct. He could not point to any provision of the DCP which gave support to it.[27] I am satisfied that the site coverage of the proposal is 22% and in breach of the maximum permissible site coverage in DCP-1.
[22]Exhibit 8, Appendix A, p 2.
[23]Exhibit 8, Appendix A, p 4.
[24]Transcript, p 2.37, line 45.
[25]Exhibit 2, para 4.4.5.
[26]Exhibit 2, para 4.3.2; joint report, p 71, para 3, last dot point.
[27]Transcript, p 2.59, lines 10-20, p 2.60, lines 1-30.
The next alleged non-compliance with DCP-1 also relates to the site coverage issue but this time by reference to s 3.3.1.1 of the Zoning Provisions. Again, Table 3.3.1 in that section provides for a maximum site coverage of 20% for a six storey building.[28]
[28]Exhibit 8, p 101.
The Council says that as a result of the building height of six storeys proposed, the proposal would be incompatible with the surrounding residential development, contrary to s 3.3.1.5(e). That argument is predicated upon the surrounding residential area being that to the west and north west of Beach Road only and I have already found that no such limitation should be placed on the surrounding residential area under consideration. Finally, the Council relies upon s 4.2.10 of the Planning Scheme to the effect, relevantly, that no more than one storey should extend above the general height of the foreshore vegetation as seen by an observer at Point Vernon or at water level on the Great Sandy Strait.
The Appellants’ response to the height/ site coverage issue I have dealt with in finding that there is non-compliance. They also raised the issue that s 3.3.1.5(e) was not identified in the Council’s reasons for opposing the application. But this appeal involves consideration of the matter anew[29] so I am satisfied I can consider that matter. The Appellants further argue that, in the event there is non-compliance, that alone should not necessarily tell against the proposal given the provisions of IPA s 6.1.2(3) which provides that a prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. They also rely on Fitzgibbons Hotels Pty Ltd v Logan City Council [1997] QPELR 208 at 212 in support of the argument that a conflict alone may not have the effect of ruling out a particular proposal. I agree with those submissions and consider that the non-compliance with the height/site coverage requirements is but one matter for me to take into account in determining whether or not the proposal would be in conflict with the 1996 Scheme and, if so, whether that conflict should result in it being rejected.
[29]IPA s 4.1.5.2(1).
On the discrete issue of height, s 1.2.16.9 of the Strategic Plan seeks to avoid any development detracting from the scenic qualities of the Great Sandy Region. S 4.2.10.2 provides that no more than one storey should extend above the general height of the foreshore vegetation as seen by an observer at Point Vernon or at water level on the Great Sandy Strait. Mr Chenoweth gave evidence that although some of the trees in other parts of the foreshore esplanade could provide effective screening and scale for a six storey building, that was not the case on the foreshore esplanade opposite the subject land because of the gap in the foreshore vegetation I earlier referred to. He said there would be no trees retained on the subject land which could provide the requisite screening given that the existing small number of trees on the site are to be removed. In his view the proposed development did not have sufficient space for the planting of trees to provide the screening he thought was necessary. The one metre wide plant bed proposed was in his view inadequate to provide the screening he spoke of although he conceded it could support a row of dense shrubs such as Lillypillys to 5-6 m in height. In summary, he thought that, given the existing fragmented and sparse foreshore vegetation opposite the site, meant that the proposed six storey building could not be effectively screened or dominated visually by vegetation contrary to s 1.2.16.9.[30] He considered that the proposed development would definitely be more than one storey above the foreshore vegetation and completely visible through the gap in that vegetation. He did not agree that the curved fan form of the proposed building would reduce its visual bulk and scale and if anything he said it would increase it.[31]
[30]Exhibit 5, paras 2.4.2 to 2.5.4.
[31]Transcript p 3.37.
Mr Chenoweth had concerns with the general landscaping plans proposed by Ms Neales. He was concerned that the lack of deep planting space along the Charlton Esplanade frontage where Ms Neales proposed that there be a row of palm trees. He did agree that whilst they would not give complete screening they would break up the mass of the building once they achieved the height shown in the landscape plan which was 10-12 m.
In relation to the proposed Norfolk Island pines also proposed to be planted in planter boxes on the Charlton Esplanade frontage and the Hythe Street frontage shown on the landscape plan as reaching a height of 15 m, he doubted whether that height would be achieved within a 10 year period given the salt wind with which they would have to cope. He pointed to the very short trees along the shoreline opposite Charlton Esplanade as an example. He thought the time for both the palms and the Norfolk Island pines to reach the specified height would be 10 – 15 years.
Finally, he thought that the only way the proposed development could maintain the scenic qualities of the Sandy Strait region as seen from offshore and Point Vernon would be for it to have a much greater setback and screen planting with tall trees on the property which the present proposal did not acknowledge particularly given the very low point of the foreshore vegetation opposite[32]
[32]Transcript p 3.38, lines 45-60, p 3.39, lines 1-35, p 3.40 lines 1-30.
Ms Neales agreed there was a gap in the foreshore vegetation immediately across from the site but was of the view that adequate screening would address that and the proposed development would not be visually intrusive when viewed from the beach. From the water she conceded that from 50 m offshore it would be visible but referred to the neighbouring development Tingeera and showed a visual simulation of the proposed development together with the present Tingeera development taken from the water.[33] She also provided a visual simulation of existing developments and approved but unconstructed developments including the proposed development to demonstrate the impact of the proposed development by comparison with those as taken from the water.[34] To my mind the visual impact of the subject proposal from the water looks to be less than that of Tingeera and the other simulated approved developments and the only development which seems to have less of an impact than the proposed development is Waimarama, the five storey older development next to Tingeera.[35]
[33]Exhibit 3, figure 12.
[34]Exhibit 3, figure______
[35]Exhibit 2, p 35.
Ms Neales agreed that, depending where one was viewing it from, the proposed development would protrude above the foreshore vegetation by at least one storey. I do not see in her evidence any concession that it went beyond that. Indeed when questioned as to its projection 50 m out on the water she agreed the projection would be 2 m[36] but 2 m is, as I understand the evidence, less than one storey which she said was 2.2 m in height.[37] Whether the proposed development would exceed the general height of foreshore vegetation by more than one storey, I am inclined to think it probably would given the sparse nature of the foreshore vegetation opposite the site. That is certainly the view of Mr Chenoweth. But, in the result, I do not think it matters. I do not regard it as a decisive factor in the consideration of this proposal under the 1996 plan because I do not think the visual impact on the Great Sandy Region would be detrimentally impacted. Indeed the requirement of s 4.2.10.2 limiting the projection of any development to one storey above the foreshore vegetation line is an example of a provision which engages the principle that planning scheme documents should be read with commonsense. Given the capacity of mother nature to denude shoreline vegetation in times of cyclones or fires, such a provision should be read to give effect to the scheme’s overall intention which I do not read as contemplating that, after any such disaster, development on the shoreline should be put on hold pending regrowth. In the instant case it is not clear to me whether the present state of the foreshore vegetation is temporary or whether in time it may improve in height and density whether naturally or with the assistance of the authority responsible for its upkeep. In saying that I take into account Mr Chenoweth’s evidence as to the possible history of that part of the shoreline namely that it may have been a small creek or inlet[38] but that observation does not directly address the issue I raise.
[36]Transcript 3, p 3.23, line 1.
[37]Transcript, p 3.20, line 55.
[38]Exhibit 5, para 1.2.3.
Conclusion as to whether any conflict with 1996 Scheme
Viewed from the site looking only west and north-west and treating Beach Road as the cut off for the higher density development on Charlton Esplanade, this proposed development would be at odds with the amenity of that area. It would amount to the placing of a high density development up against low density development. It would be out of step with development in that area. However, if one broadens the gaze and includes in the relevant residential area to be considered Charlton Esplanade south east from the site to include the higher density developments along Charlton Esplanade and Watson Street the sites carrying approvals for such developments in that area, the perspective changes and the proposed development can then be seen through a different prism. Leaving aside for the moment the issue of site coverage which I shall shortly address, in my view, it is a development which appears similar in scale and character to other developments constructed or approved south eastward along Charlton Esplanade and Watson Street. That leaves the question of whether the site coverage non-compliance constitutes a conflict with the 1996 Scheme.
As is set out in paragraph 17 above, the effect of s 4.13(5A) of the repealed PEA legislation is that the application must be refused if it conflicts with any relevant strategic plan or development control plan and there are not sufficient planning grounds to justify approving the application despite the conflict. In Weightman v Gold Coast City Council[39] when considering s 4.4(5A) of the PEA which is in identical terms to s 4.13(5A) the court said:
[39][2002] 121 LGERA, 161 at 173, Atkinson J [2002] 121 LGERA 161 at 173
“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P&E Act, decision-maker should:
1. Examine the nature and extent of the conflict;
2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if conflict can be justified on those planning grounds;
3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
The first issue then is to determine whether in fact a conflict exists. In Woolworths Ltd v Maryborough City Council(No. 2)[40] Fryberg J, with whom the other members of the court agreed, considered the meaning of the term “conflict” in s 3.5.14(2)(b) of IPA which provides:
[40][2005] QCA 262 at p 286, para 23.
“(2)If the application is for development in a planning scheme area, the assessment manager’s decision must not:
(a)…;
(b)Conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision.”
That provision is, relevantly, the same as the s 4.13(5A) of PEA. His Honour adopted the definition of conflict in the Macquarie Dictionary 2nd Edition and found that, in context, it meant a variance or disagreement between the planning scheme and the proposal. Interestingly, the Macquarie definition is more benign than that of, for example, the Oxford dictionary[41] which defines conflict as a fight, struggle, collision, clashing of principle or incompatibility. I consider the Woolworths decision results in a lower threshold of non-compliance by a proposal with a planning scheme necessary to result in conflict between the two, than would be the case if the Oxford definition was applicable.
[41]Concise Oxford Dictionary 6th Edition.
As I have indicated, apart from the height/site coverage issue, with which I shall shortly deal, I am satisfied that the proposal, when viewed in the context of the urban residential area I have defined, would be compatible with the existing or prospective scale and character of nearby residential areas. The Council emphasised the importance of the prospective as well as the existing amenity which of course is the primary consideration reflected in s 1.2.1.4(e) of the Strategic Plan. I am mindful of that and my finding is predicated upon the nearby residential areas[42] being the extended area I have identified as extending south and south east from the site. I am satisfied the proposal would not be inconsistent with the protection of the amenity of that residential area, existing or prospective.
[42]Strategic Plan s 1.2.1.4(ii)(c)
Also, as I have said, I am also satisfied that the proposal would not intrude visually into the Great Sandy Region so as to detract from the natural scenic qualities of that area.[43] I have not come to this view without some reservation given the evidence of Mr Chenoweth in relation to the landscaping, the gap in the foreshore vegetation and the finding I have made that the proposed building would probably be one storey above the general height of foreshore vegetation. However on balance I am persuaded that those challenges would be met by suitable conditions as to a landscaping plan, and the use of visually recessive building colours and materials as envisaged in s 4.2.10.4. Of course it would be greatly assisted if the gap in the foreshore vegetation was remedied by the appropriate authority by the planting of appropriate vegetation.
[43]Strategic Plan s 1.2.16.9.
That brings me to the question of the status of the variation between the proposal and the 1996 Scheme on the issue of height/site coverage. The language of s 3.3 of the Zoning Provisions and s 4.2.10 of the General Development Requirements, Objective 2 in DCP-1 above appear stringent on their face. For instance objective 2 says that the Council will not give its consent to the height of any building exceeding two storeys except where site coverage requirements are met which in this case they are not. On its face the language may be seen to be prohibitary in nature so as, at first blush, to render non-compliance fatal to any application which fell outside the site coverage criteria.
But that is not the end of the matter because IPA s 2.1.23(2) provides that a local planning instrument may not prohibit development on, or the use of, premises. To interpret s 3.3, 4.2.10 and Objective 2(a) as prohibitary would offend that provision. Its relevance was recently recognised by the Court of Appeal in Aria Property Group Ltd v Maroochy Shire Council[44] where the court acknowledged that the parties had agreed that an Integrated Planning Scheme could not prohibit development and that the description of a height or site coverage as a “maximum” did not impose an absolute prescriptive limit. Although the court was there was considering an entirely different set of issues, it is clear it accepted the principle agreed to by the parties. Reference in that case to an Integrated Planning Scheme would include the 1996 Scheme under IPA s 6.1.4(1) which provides a Transitional Planning Scheme is to be taken to be an IPA Planning Scheme until it is replaced by, or converted to, an IPA planning scheme. Hence given that the application is to be assessed under the 1996 Scheme, subject to the operation of IPA s 4.1.52(2)(a), that scheme attracts the prohibition in IPA s 2.1.23. Further, the fact that the prescriptions on height and site coverage do not amount to prohibitions as such, which s 2.1.23, strictly, deals with does not alter the application of that section to the scheme sections under consideration. As Davies J said in Vynotas Pty Ltd & Anor v BCC & Anor:[45]
“In any event the scheme of the Integrated Planning Act appears to be that, so far as it applies to development and use of premises, a transitional planning scheme no longer has binding force but is of persuasive relevance only. Thus s 2.1.23 provides that a local planning instrument, which includes a planning scheme, may not prohibit development on, or the use of premises; and more specifically s 6.1.2(3) provides that a prohibited use in a former planning scheme (which includes a transitional planning scheme – s 6.1.3(1)) is taken to be no more than an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. These provisions related only to prohibitions but if prohibitions in former planning schemes are now no more than policy statements it is unlikely that the legislature intended any other provisions in such schemes to continue to have binding effect upon development applications under the Act.” (my emphasis)
[44][2008] QCA 169 para 54.
[45][2001] QCA 24 at para 15.
Any relevant conflict found must operate between the planning scheme and the proposal both considered as a whole. That is to say, the question to be addressed is whether, having regard to all non-complying aspects they, individually or collectively, place the proposal so at variance with the intent of the planning scheme as to place it in conflict with the scheme. Questions of degree will arise. Non-compliance with individual aspects of a scheme will not necessarily render the proposal in conflict with it when the scheme is considered as a, whole as it must be in accordance with the principles of interpretation I have earlier set out. On the other hand, a single non-compliance, if serious enough may well place the proposal in conflict with the scheme.
The issue then is whether the proposal’s non-compliance with site coverage requirements amounts to a conflict with the 1996 Scheme. The sight cover overreach of 10% (22% rather than 20%). The clear language of the provisions referred to in paragraph 43 above, whilst not determinative, is nevertheless a strong indication of the planning intent of the Council in relation to this issue. Further, the nature of the issue is very important when one comes to consider amenity. But for the decision in Woolworths Ltd v Maryborough City Council No. 2[46] as to the meaning of “conflict”, I probably would have been inclined to take a more robust view of that term and not find a conflict unless it amounted to, in effect, a challenge to the scheme. I am conscious that both town planners Mr Schomburgk and Mr Buckley agreed that site coverage was not, of itself, sufficient to warrant refusal.[47]
[46][2005] QCA 262.
[47]Exhibit 2, joint statement, para 3, last dot point.
Notwithstanding those views, given the meaning of conflict as determined in Woolworths and the strong language of the scheme provisions dealing with height/site coverage, I consider that the non-compliance with the site coverage provisions of the 1996 Scheme does constitute a conflict with that scheme in that it conflicts with a very clear and important intent of the scheme. The operation of s 2.1.23 denying any prohibitary interpretation does not lessen the force of its language in reflecting the intent of the authors of the 1996 Scheme.
Are there planning grounds of sufficient weight to warrant approval of the application despite the conflict with the 1996 Scheme?
In considering whether sufficient planning grounds exist the comments of McLauchlan QC DCJ in Kentbrock Pty Ltd v Gold Coast City Council[48] are helpful. His Honour said:
[48][2003] QPELR 587 at 592 paras 31 and 32.
“(31)There is no definition of the expression “planning grounds” but some assistance with respect to its meaning can be gathered from the definition of “town planning” which is defined to include all matters necessary or expedient for securing the improvement, orderly development, healthfulness, amenity, embellishment, convenience, conservation or commercial advancement of an area or part of an area.
(32)Whether or not there is sufficient planning grounds to justify approving the application would depend upon the nature and extent of the conflict, and the weight that can be given to such planning grounds as can be identified as relevant to the application.”
I have earlier indicated that, in my view, the only obstacle to approval of this proposal under the 1996 was the issue of height/site coverage. The site coverage overreach is 10% (22% rather than 20%). I am satisfied that there are sufficient town planning grounds to warrant approval under the 1996 Scheme notwithstanding the conflict I have found. In that regard I rely upon the zoning of the site which permits a development of the type here proposed and the compatibility of the proposed development with the surrounding amenity or, put another way lack of any adverse impact on the amenity. I consider the proposal would be consistent with orderly development and the amenity of the area. In Leda Holdings Pty Ltd v Caboolture Shire Council[49] the Court of Appeal endorsed what was described as a commonsense proposition stated by Quirk DCJ in Redland Shire Council & Anor[50] where his Honour wrote:
“It would appear fairly fundamental that the land’s zoning … was a matter of considerable weight and more than capable of amounting to a planning ground sufficient to justify approving the application despite its apparent conflict with the Development Control Plan.”
The attack in Leda on the court’s reliance upon the site zoning as sufficient planning ground was unsuccessful.
[49][2006] QCA 271 at para 33.
[50][1993] QPLR 214.
In the same case[51] the court found that this court was entitled to take notice of the lack of adverse impacts on the amenity of the area thereunder consideration, provided the court was satisfied that that was unlikely to change in the foreseeable future. It found that was a relevant planning matter for the purpose of s 4.13(5A) of the PEA. I consider that lack of adverse impact of this proposal on the amenity of the area would be unlikely to change in the foreseeable future.
[51][2006] QCA 271 at para 37.
Conclusion re 1996 Scheme
Whilst the decision, being one on a legal issue, is clearly one for the court, my finding that the proposal should be approved under the 1996 Scheme is consistent with the views of both town planners, Messrs Schomburgk and Buckley[52] that site coverage, of itself, was not likely to warrant refusal of the proposal. It is also consistent with the submissions of the Council that non-compliance with site coverage requirements was not, of itself, fatal[53] In the result, I find, in satisfaction of PEA s 4.13(5A)(b), that there are sufficient planning grounds to justify approving the application despite the conflict with the 1996 Scheme.
[52]Exhibit 2 joint statement, para 3, last dot point.
[53]Respondent’s written submissions in Reply, para 15.
Is there a conflict with the 2006 Scheme?
I now turn to the new planning scheme to undertake the exercise of ascertaining whether the proposed development is in conflict with that scheme, and, if so, the weight, if any to be given to that scheme and if necessary, whether there are sufficient planning grounds to justify approval despite any conflict.
It is common ground that the 2006 Scheme introduced a very different approach from the 1996 Scheme in that it changed its approach to the future location of higher density development by introducing a series of village nodes along the foreshore each having a Mixed Use/Business Area and a High Density Residential Zone area around it with Medium Density Residential Zones in between these nodes.[54] I see that as a deliberate decision to arrest the perpetuation of the present serrated skyline along Charlton Esplanade resulting from varied building heights. Under the 2006 Scheme the land is:
[54]Exhibit 2, paras 5.2.8 and 5.2.9.
(a) In the Urban locality;
(b) In the Medium Density Residential Zone; and
(c)subject to the Urban Locality Code and the Medium Density Residential Zone Code.
A Medium Density Residential development is intended to provide accommodation mostly for permanent residents of the city and is generally located between the series of new higher density nodes.[55]
[55]Exhibit 9, Pt 4, p 2, s 2.1.1(i)(j).
Significantly, although the higher density development to the south east of the site along Charlton Esplanade including Tingeera, Waimarama and RSL/Leading Edge may be seen to be a ripe candidate for classification as a node, it is not so classified. The nearest node, the Pialba node has as its most western boundary Charles Street which is immediately to the west of the last of those higher density developments, RSL/Leading Edge 46-52 Watson Street. It is a six storey development and falls just outside that node. That omission was alluded to by Wilson SC DCJ in Maher v Hervey Bay City Council[56] when he said in relation to the series of high density nodes created in the plan – “there are some unusual and puzzling aspects to these provisions: inexplicably, the nodes do not include a cluster of high buildings to the west of the Pialba node (but immediately adjoining it) …” I respectfully adopt His Honour’s comments. Having said that, it is not for this court to take on the role of a planning authority but rather to interpret planning schemes in force in recognition that they are the product of an intensive process of planning and consultation.[57]
[56][2007] QPELR 123 at para 32.
[57]Elan Corporation & Anor v Brisbane City Council [1990] QPLR 209 at 211, para I
It will not be necessary for me to set out all the relevant provisions of the 2006 plan as I did with the 1996 plan because Mr Schomburgk accepts that the proposal is in substantial conflict with the 2006 plan.[58] He accepted the proposal was of a kind one would expect in the High Density Residential Zone rather than in the Medium Density Residential Zone where the land is located.[59] He agreed to that because of its height, density and character of accommodation.[60]
[58]Transcript p 2.44, lines 25-50.
[59]Transcript p 2.41, line 50, p 2.44, line 10.
[60]Transcript p 2.44, line 15.
Mr Schonberg agreed that the overall height of the proposal ranged from 18½ m to 20½ m depending on the elevation one looks from and that the ratio of units per hectare (density) was 186.[61] That latter figure is more than double the minimum density for the height density of residential zone which has a range of 70 to 100 dwelling units per hectare. Relevantly, in the Medium Density Residential Zone, the density range is between 30 and 50 dwelling units per hectare which puts the proposal’s density of 186 well in excess of that requirement.[62]
[61]Transcript p 2.37, lines 5-25.
[62]Transcript p 2.42, line 35.
Mr Schomburgk acknowledged that the proposal’s height of between 18.5 and 20.5 m well exceeded the 11 m maximum height permitted in the Medium Density Residential Zone.[63] He sensibly acknowledged that the new plan gave no encouragement for the proposed development in a Medium Density Residential Zone.[64]
[63]Transcript p 2.42, line 30.
[64]Transcript p 2.44, line 20.
It is plain to me that the proposal is in significant conflict with the 2006 Scheme as Mr Schomburgk has acknowledged. Notwithstanding that, he considers that the 2006 Scheme should be given little weight and Mr Hinson, counsel for the Appellants submitted that it should not be given any decisive weight.[65]
[65]Exhibit 2, para 5.2.11; Appellants’ written submissions, para 23.
Weight to be given to the 2006 Scheme
The starting point is IPA s 4.1.52(2)(a) which provides:
“4.1.52
Appeal by way of hearing anew
(1) An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant or a submitter for a development application, or is a person who has applied for approval of a proposed master plan, the court:
(a)Must decide the appeal based on the laws and policies applying when the application was made, but may give way to any new laws and policies the court considers appropriate; …”
The Appellants’ argument that no decisive weight should be given to the 2006 Scheme starts with the submission that the subject application was made 5 months before the draft of the scheme was publicly notified and then relies on the Scheme’s radical departure from the 1996 Scheme in its treatment of taller structures. They further say that consideration should be given to IPA s 3.2.5(3) dealing with a development application (superseded planning scheme) (DASPS) which empowers the Council upon application by an applicant to elect to apply the superseded scheme instead of the current scheme thus avoiding a potential liability for compensation for diminution in value of the applicant’s land caused by the changed planning scheme. That is speculative given that the Appellants have not called upon the Council to elect which scheme it will apply. Finally they say that the absence of any conflict with the 1996 Scheme should also be considered.[66] I have already found a conflict with the 1996 Scheme.
[66]Appellants’ written submissions, para 23.
The Council’s position is that, in considering the weight to be given to the new plan the court must balance the fairness to the applicants against the following factors:
(a) The length of time taken to prosecute the appeal;
(b) The age of the 1996 Scheme;
(c) The serious nature of the conflict between the proposal and the new scheme;
(d)The age of the new scheme being some 21 months old and the prejudice to it if the proposal is approved; and
(e)The reality that:-
(i)Both public and private investment has been made in reliance upon the provisions of the new scheme; and
(ii)The public’s reasonable expectations as to development are likely to have adjusted and hardened in accordance with the provisions of the new scheme.
I have set out the relevant time line in paragraph 2. The Appellants made application on 22 December 2004 and the draft of the new plan was publicly notified between 18 March 2005 and 14 April 2005. The decision making period expired on 13 July 2005 at which point the Appellants were in a position to appeal on the basis of a deemed refusal. In fact the appeal was not filed until 18 October 2006 some 15 months’ later. It is not suggested by the Council that the Appellants sat on their hands but what the Council does say is that they made a conscious decision not to lodge an appeal immediately. It is common ground that both they and the Council were awaiting the decision in Maher v Hervey Bay City Council[67] relating to another property belonging to the applicants and situated at Urangan. Of some relevance to the lead time to the hearing is that, had an appeal been lodged immediately in July 2005, it may be argued that this appeal may have been heard prior to the adoption of the new plan by the Council on 15 December 2006.
[67][2007] QPELR 123.
I do not attach great significance to that aspect because whether the plan was in draft form or in law at point of appeal the question as to the weight to be given to it would still have arisen for determination. In any event I record my view that, whatever may have been the legitimate strategic or commercial basis for the Appellants’ decision to delay the appeal pending the outcome of the other case, and accepting that, though the Council itself was interested in its outcome but did not object to the delay, I do not consider that case had any sufficient bearing on this matter to justify delaying the appeal.
As to the age of the transitional planning scheme and the age of the new scheme those factors are relevant to the issue of expectation. As to the expectations of the Appellants and the community, each must be tempered by the reality of the nature of the planning regime. Planning schemes are not static. They continue to evolve as a community develops and matures in planning terms.They are the subject of regular review. People in the position of the Appellants are deemed to be aware that, whatever may be their rights under a particular planning scheme, there is a risk they may be impinged upon by a new scheme in appropriate circumstances. As to community expectations the same principle applies. People investing in a particular area, whether for commercial or residential purposes, are imputed with the knowledge of the fact and content of any new planning scheme in prospect. They are also deemed to be aware that rights of others, like the Appellants, accrue under superseded planning schemes and continue for a period after their introduction, which may well result in planning outcomes at odds with an individual’s expectations at point of acquisition of their property.
It is clear from the statements of some residents,[68] including a petition signed by many of them, that they bought into the area in anticipation of future development being governed exclusively by the 2006 Scheme. Such unfettered expectations, are to my mind, misconceived for the reasons I have outlined. The rights flowing from planning schemes, in a transitional context, are not inviolate. I respectfully adopt the comments of Brabazon QC DCJ in Baptist Union of Queensland v Brisbane City Council[69] when he said:
“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 the aspects of the planning controls. 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.”
[68]Exhibit 6.
[69][2003] QPELR 61 at 80, para 129.
In my view by far the most significant and confronting matter, when considering the weight to be afforded to the 2006 Scheme, is the nature and the extent of the proposal’s conflict with it. This is not a case where a proposed development under a superseded scheme comes up against a new scheme resulting in a little tension at the periphery of the new scheme. Rather, this proposal takes the new scheme head on in fundamental respects. It seeks to include a unit development for holiday accommodation in an area intended mostly for permanent residents. Further, it intends to locate the development outside clearly identified nodes designated in the new scheme for the precise type of development envisaged. To my mind, the height and density irregularities referred to above, render the proposal completely unacceptable within the designated Medium Density Residential Zone.
I consider the proposal, if approved, would represent a head-on clash with an essential aspect of the new plan namely the nodal concept for higher density development. Whatever view one may take of the omission of the high rise buildings south east of the site along Charlton Avenue from one of the new designated nodes, the reality is that is what the City planners have decided for the future development of their city. To allow this proposal would fly in the face of that clear planning decision.
Reference has been made to the Coty principle. Given IPA s 4.1.52(2)(a) which allows the court to give weight to a new planning scheme, there is no necessity for the Coty principle to be satisfied before I can consider the 2006 Scheme. However, I regard the Coty principle as having been satisfied in this case. The Coty principle was affirmed as good law in Queensland by the Court of Appeal in Lewiac Pty Ltd v Gold Coast City Council.[70] It arose out of Coty (England) Pty Ltd v Sydney City Council[71] and in Lewiac the court said this:-[72]
[70][1994] 83 LGERA 224 at 229.
[71](1957) 2 LGRA 117.
[72][1994] 83 LGERA 224 at 228.
“The considerations that persuaded Hardie J to do so with respect to a scheme that was merely under consideration in Coty’s case with the following (at 125-126):
‘It is important, in the public interests that whilst the respondent Council’s local scheme is under consideration, this court should, in the exercise of its appellate jurisdiction under cl. 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period, this court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.’
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A similar view was taken by Sugarman J in Paynter & Dixon Pty Ltd v Sydney City Council (1953) 19 LGR (NSW) 206 and in Colonial Sugar Refining Co Ltd v Sydney City Council (1959) 4 LGRA1. Similar recognition of the protection that is needed of the planning process is apparent in Hollingsworth v Brisbane City Council [1975] Planner LGC 99;
“… although the new town plan is not yet in force, it was in my opinion quite proper for him to take its provisions into account (per Lucas J).
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I am not persuaded that Coty’s case ought to be over-ruled or that its recognition that it is possible to give some weight to planning decisions that are in train but which do not yet have the force of law is misplaced. It may of course be possible to give too much weight to such a factor, but that question does not here arise. Unless some recognition is given to this factor it would be possible to sabotage any scheme by a single development inconsistent with it. The construction of one high-rise building an area planned for low building profile is a good example. It is better that such developments await determination on whether the strategic plan is approved, modified or referred, rather than allow the plan to be pre-empted by an ad hoc development.”[73]
[73]See also Iverach v Cardwell Shire Council & Anor [2006] QPEC 114 and Yu Feng v Brisbane City Council & Ors [2007] QPELR p 323.
To adopt the language Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council[74] this proposal would cut across the 2006 Scheme in quite an unacceptable manner. The 2006 Scheme is designed, in part, to address what may be seen in the past to have been ad hoc development along Charlton Esplanade leading to the serrated skyline earlier referred to. For these reasons, I think the new plan must be given significant and decisive weight.
Are there sufficient planning grounds to warrant approval of the application despite its conflict with the 2006 Scheme?
[74][1990] QPLR 209 at 211.
In relation to that conflict the Appellants rely on five grounds:-[75]
[75]Schomburgk report, exhibit 2, para 5.9.2.
(a)That the proposal complies with the 1996 Scheme. I have found it does not.
(b)The proposal is not dissimilar in scale, density, bulk or height to other recently built and other recently approved unit developments along Charlton Esplanade.
(c)The change in planning philosophy regarding building height from the 1996 Scheme to the 2006 Scheme should not be used as a reason to deny the subject application which was lodged well before the draft version of the 2006 made public;
(d)The proposal, if approved, will not detract from the overall outcome of the 2006 Scheme to any appreciable degree especially given the number and locations of existing buildings higher than 2 storeys along the Esplanade; and
(e)The proposal, if approved, will help achieve the Council’s desired “nodal” approach to higher density and taller buildings, albeit extending beyond the Council’s 2006 Planning Scheme intended nodal boundaries.
As to the argument that other not dissimilar proposals have been recently approved along Charlton Esplanade it is not clear to me the date of approval of Tingeera Waimarama or RSL/Leading Edge.[76] As to the three approvals as yet unbuilt, Panoptic/Moretons was approved on 5 October 2005 and Huntingdon/Pilteam on 1 December 2005. Herbay’s approval was amended on 27 February 2008 and although the application was made in July 2006 it is not clear when the original pre-amended approval was granted. What is clear is that all the applications and two of the approvals pre-dated the introduction of the 2006 Scheme. All three were approved during the life of the draft 2006 Scheme. All three fall outside any of the new higher density development nodes. Two of the approvals that of 5 October 2005 and 1 December 2005 are three years’ old and were granted over a year before the introduction of the 2006 Scheme on 15 December 2006. The details of those approvals, including any weight may have been given to the nodal concept, is not in evidence.
[76]Exhibit 2, figure 4, p 35.
It is of some significance that these approvals have been granted in circumstances where, I infer, less than decisive weight seems to have been given to the 2006 Scheme nodal concept.
In Grosser v Council of Gold Coast[77] White J said:
[77][2001] 117 LGERA, 153 at 165, para 44.
“It is well recognised that a Town Planning Appeal Court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remains invalid, Beck v Atherton Shire Council [1991] QPLR 56 at 59, quoted with approval by Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1998] QPELR 335 at 339 and following.”
The extracts from Beck referred to was in these terms:
“I am well aware that the Strategic Plan designations are indicative of preferred dominant land uses and do not have the force zonings. The court has however, repeatedly stressed the importance of strategic planning and the need to respect and support the integrity of the important planning tool which the Strategic Plan is. There may be cases where a departure from the Strategic Plan could be justified; where, for example, the planning strategies which it represents, have been overtaken by events (or for some other reason), clearly no longer have any application; or where it can be demonstrated plainly the land has been given a designation on the basis that it was and remains invalid. One would expect such cases to be rare and I am far from persuaded that this is one of them.” (my emphasis)
The question for me is whether the planning strategies of the 2006 Scheme have been “overtaken by events” namely of the approvals above referred to, suggest to evidence that the Council has, itself, departed from the intent of that Scheme. If so does that consideration outweigh the other considerations I have referred to whereby this proposal offends the 2006 Scheme. As harsh as it may appear to the Appellants I am not satisfied it does. As I have said the three approvals in question were granted before the new scheme was adopted although after it was publicly notified and the Scheme has now been in operation for almost two years (from 15 December 2006). I am not satisfied that those three approvals manifest any intention on the part of the Council to depart from the strategies of the 2006 Scheme. I remain of the view that the proposal if approved would fly in the face of the 2006 Scheme.
I am not persuaded that any of the above grounds correct the imbalance against the appellants resulting from the conflict with the 2006 Scheme. I accordingly find that there is no planning ground which would justify the approval of the application notwithstanding the conflict with the 2006 Scheme.
The appeal is dismissed.
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