Maher v Hervey Bay City Council
[2006] QPEC 98
•27 September 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Maher v Hervey Bay City Council [2006] QPEC 098
PARTIES:
PETER AND SOFIA MAHER
Appellants
V
HERVEY BAY CITY COUNCIL
Respondent
FILE NO/S:
BD 174/2006
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
27 September 2006
DELIVERED AT:
Brisbane
HEARING DATE:
25, 26 and 27 July 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 Appeal allowed; matter adjourned for resolution of appropriate conditions
2 Mention again at 9.15am on 27 October 2006
CATCHWORDS:
PLANNING AND ENVIRONMENT – PLANNING LAW – whether development proposal in conflict with planning scheme – no conflict found
PLANNING AND ENVIRONMENT – PLANNING LAW - Coty principle – draft planning scheme under consideration after development application made – weight to be given to draft scheme
Local Government (Planning and Environment) Act 1990, s4.4(5A)
Integrated Planning Act 1997Cases cited:
Burmah Fuels (Qld) Pty Ltd v Redland Shire Council [1995] QPLR 103
Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117
Lewiac Pty Ltd v Gold Coast City Council [1993] QPLR 181
Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224
Luke v Maroochy Shire Council [2003] QPELR 447
Mt Marrow Blue Metal Quarries Pty Ltd v Morton Shire
Council (1996) 1 Qd R 347
Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 139
Ugarin Pty Ltd v Logan City Council [2004] QPELR 392Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41
COUNSEL:
M Hinson SC for the appellants
C Hughes SC for the respondent
SOLICITORS:
Nicol Robinson Hallets for the appellants
Connor O’Meara for the respondent
Council has refused the Mahers’ application for a development permit which would allow 48 dwelling units in a proposed six storey building near the seafront at Urangan, Hervey Bay. The land is an amalgamation of four smaller allotments and contains 4,512 m2. It has an approximate battle-axe shape with one block running back from the road just behind the beach, Charlton Esplanade, towards three which have been amalgamated in a parallel road, Cypress Street.
The principal issues in the case are all connected with the height of the proposed building. At six storeys, it is said by Council to be in conflict with the amenity and character of the immediate locality and with the current planning scheme and an associated Development Control Plan (DCP) and, also, with Council’s proposed new planning scheme, presently being introduced to meet the requirements of the Integrated Planning Act 1997 (IPA).
Reports about these issues were received, and evidence taken, from Mr Schomburgk (town planner) and Mr O’Brien (architect) for the Mahers, and Mr Buckley (town planner) and Mr Chenoweth (landscape architect and environmental planner) for Council. An inspection of the Hervey Bay foreshore area from Point Vernon in the west to Urangan in the east, and the site itself and the surrounding streets, was undertaken on the first day of the hearing.
The development application was lodged on 21 December 2004 and publicly notified in March 2005. There were no submissions, adverse or otherwise. In April 2005 Council’s new draft IPA scheme was made public. The appellant amended its plans and submitted them in August 2005. Council notified its decision, refusing approval, in December 2005. The continued operation of Council’s pre-IPA scheme and the interplay of IPA[1] and its predecessor, the Local Government (Planning and Environment) Act 1990, means that s4.4(5A) of the latter applies:
[1] IPA s 6.1.30(3)(a)
4.4(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.
Under the transitional scheme the parcel on the Esplanade is in the residential low density zone, and the three lots in Cypress Street are zoned residential medium density. Under the Strategic Plan the land is in the Urban Residential preferred dominant land use category. The Development Control Plan (DCP 1) includes the land in the multiple unit development area within which ‘... Council will support the rezoning of any land not already zoned residential medium density such that residential multiple unit development may be permitted.’
For reasons appearing later there is, in truth, little if any conflict between the proposal and the current transitional planning scheme and it is apparent Council’s opposition rests in a more profound way on a fear that permitting this development will undermine the different planning principles for the Hervey Bay foreshore which underlie the proposed new IPA scheme.
The current DCP shows the entire Esplanade strip from Pialba in the west to Urangan in the east as intended for higher density residential development and, where successful amalgamation of allotments can be achieved, taller buildings. As Mr Schomburgk explained[2], and inspection vividly confirmed, the effect at present is a ‘serrated’ skyline along the Esplanade featuring a number of buildings of up to 7 storeys in height, interspersed with many lower one, two and three storey developments. A map prepared by Mr O'Brien showed[3] there are up to 20 actual buildings (or approvals for them) of around 6 storeys in the arc from Pialba around to Urangan boat harbour. Some approvals are quite old, and may never proceed, but others are presently proceeding – most notably, Allegra in Torquay and Peppers in Urangan.
[2]Exhibit 5, p 15
[3]Exhibit 3, vol 2, p 59
The proposed new IPA scheme adopts a different approach: it shows[4] a series of ‘village nodes’ along the foreshore, each having a mixed use/business area and a high density residential zone around it, separated by medium density residential zones with lower buildings. The apparent, desired outcome is a series of higher buildings clustered together at various points, with a lower skyline between.
[4] Exhibit 16
This proposal lies in the first block to the west of the Urangan Pier node, and just outside it. Inspection showed it contains a number of old style beachside residences and some existing two and three storey holiday units. Immediately to the west of the site itself a new unit development ranging between one and three storeys is almost complete. To its west another three storey unit development running between the Esplanade and Cypress Street has been approved. The southern side of Cypress Street is occupied by houses a number of which now have, within view, the very large Peppers development.
Inspection also confirmed that the journey in either direction along Charlton Avenue gives the impression of what Mr O’Brien called ‘linearity’[5] by which he meant to describe the innate coherence of development, albeit over several kilometres, of this beachfront roadway – its obvious character as a tourist strip, of which an intermittent but recurring feature is buildings of up to six storeys. Once that overall coherence is acknowledged, it follows that the appropriate criteria against which this proposal’s capacity to harmonise with its surroundings should be measured will include not just the immediate locale but also, to a degree, the area encompassed by those wider parameters.
[5]T24.50
In any event, as the case progressed this aspect of it – i.e., alleged conflict, in terms of amenity and character, with the immediate locality – tended to pale. An earlier objection from Council (that the proposal would have unacceptable impacts on views from the Great Sandy Straits) was abandoned, and Senior Counsel for the respondent did not, ultimately, press submissions about amenity impacts. That was not inappropriate: the building occupies less than 20 per cent of the area of the four allotments, has extensive setbacks and landscaping, and is of a modern, architecturally interesting design. Mr O'Brien and Mr Chenoweth agreed that the 69m setback from Charlton Esplanade means the visual impact there will be slight. The evidence otherwise showed that in Cypress Street the 20 metre setback and wide boundaries on each side results in far less visual intrusion than that imposed, for example, by Peppers on its surrounds.
Mr Chenoweth maintained, however, that the scale and bulk of a six storey development in Cypress Street would cause an unacceptable visual impact. It is appropriate to remark that no submissions were received from any Cypress Street landowners. Mr O'Brien presented illustrations called ‘massing silhouettes’ showing, as I was persuaded, that the visual bulk of the proposed buildings will be much less that of other recently approved five and six storey buildings in the area, and his photomontages from Cypress Street, both west and east of the site showed (and inspection in Cypress Street confirmed) the older, low-set houses near the site are already ‘... visually subservient to the more dominant chain of larger scale existing and proposed buildings and the almost continuous dominant foreshore vegetation’[6]; and that this building would, now, simply be another feature in a ‘viewscape’ already intruded upon by Peppers and another, closer five storey development near the western edge of the Urangan Pier node, Pier One.
[6] Exhibit 3, p 21
Once this perspective is appreciated, it is impossible not to agree with Mr O'Brien that the proposed building ‘... will be quite appropriate with respect to the scale and height of the existing buildings within the area’[7].
[7] Exhibit 3, p 22
The transitional scheme follows a standard format consisting of a Strategic Plan, zones, development criteria and DCPs. The land is part of the wider urban residential designation, explained to mean:
1.14.1 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. Urban residential areas will also include non-residential ancillary land uses ... including neighbourhood shopping centres, schools, local parks, kindergartens and churches ...
The Strategic Plan goes on to provide some guidance, or context, for consideration of issues regarding the location or extent of higher than single house residential densities:
1.2.1.2
…(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. Planning for higher density development (including ... home units ...) will be required to be undertaken in terms of the AMCORD or applicable Local Planning Policy.
…
1.2.1.4
...
(ii)
…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 areas.
…
(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.
…
1.2.1.6
…
(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 or visual impacts on the Great Sandy region and urban character, visual, privacy and shadow impacts on the local community.
(emphasis added)
The zoning provisions contain land use expectations for zoned parts of the city and include matters to be taken into consideration when, as here, the subject development would have required a rezoning application under the former legislation. Clause 2.3.1 relevantly provides:
2.3.1.1
...(c)whether the proposal or buildings erected in conformity with the proposal would detrimentally affect the amenity of the neighbourhood.
...
(g)whether the proposal would be in accord with, or conflict with any of the provisions of the Strategic Plan or any Development Control Plan.
...
(y)the particular circumstance of the proposal in relation to the overall public interest.
(emphasis added)
This parcel is in two zones, residential low density and residential medium density. The ‘intent’ of the 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) ...’[8]. This is in marked contrast with the low density zone, for which the intent plainly turns its face against multiple dwellings.
[8] Clause 3.2.2.1
The scheme then contains development standards linked to each zone which address building height:
3.3.1.2
Purpose
To ensure that buildings and/or other structures are not erected in a manner which will adversely affect the amenity of neighbours, or the locality as determined by community values, or the broader natural landscape.Provisions
Subject to subsection 4.2.10, the maximum height of buildings shall not exceed two storeys or 7.0 metres 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. Subject to subsection 4.2.10, the maximum height of structures other than buildings, with the exception of structures or attachments supported directly by a building, shall not exceed 10.0 metres above ground level.
To this point, then, the scheme indicates that in most of Hervey Bay the norm is to be a vertical dimension not exceeding two storeys, but subject to any DCP. The criteria set for judging appropriate height are those which involve direct impacts on the amenity of neighbourhoods, and localities, and the broader natural landscape.
Clause 4.2.10, foreshadowed in the provision just quoted, relevantly provides:
4.2.10.1Subject to compliance with the following provisions, the absolute maximum building height shall be six storeys above ground level.
...
4.2.10.4Above 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.
(It has been accepted in this case that the proposed building does not unacceptably extend above the general height of foreshore vegetation.)
DCP 1 covers the developed area between Point Vernon in the west to Urangan in the east, and includes the subject site. It contains a series of preferred land use areas and includes the site in the multiple unit development area. Its introduction announces a specific purpose: to ‘... control the height of all types of building with the aim of preserving the visual and urban amenity of areas ...’ and continues the previously mentioned theme of limiting development in Hervey Bay, generally, to two storeys[9].
[9] DCP 1, cl 1(3)
The DCP contains a number of Objectives and it was argued this development is in conflict with, in particular, Objectives 2 and 4. The latter is, however, concerned with vehicular and pedestrian traffic and, although its implementation provisions suggest that six storeys will not be permitted unless the land has at least a 55 metre frontage to Charlton Esplanade, has to be considered in light of the long frontage of the building to Cypress Street and the absence of any evidence, from Council, that the free flow and safety of vehicular and pedestrian traffic is compromised by the height of the building.
It is plain that good access to the property can be readily achieved from Charlton Esplanade (with egress into Cypress Street) in a way which meets the primary purpose of the objective – safe traffic and pedestrian management. There was no evidence suggesting this is not a practicable, indeed a good, system of traffic movement which will not compromise Objective 4. The question of any effect on traffic in Cypress Street simply did not arise. Conflict with the Objective is, then, purely formal in the sense it is technical, and of little moment.
Objective 2 purports to address building height and indicates that Council will not give its support to structures over two storeys ‘... except where the building and its site meet the site coverage requirements’. It contains a table indicating, relevantly here, maximum permissible site coverage for a six storey building of only 20 per cent - with which this proposal complies. Otherwise it posits only vague criteria by which height controls should be measured: ‘… by relating the number of storeys to the size, nature, locality and accessibility of the project and its site and surrounding development’.
As Mr Buckley said[10], the workings of the DCP are curious. As he also said, Objective 2 must be read together with other Objectives ‘... to gain a full appreciation of the document’. Relevantly, Objective 3 seeks to provide for a ‘... variety of building form, height and setback where developments front important tourist and environmental localities specified in appendix 1’ (which includes Charlton Esplanade); again, the proposal complies with one of its requirements in that it is set back more than 35 metres from that road. The proposal is also compliant with Objective 8, which addresses the scale of development relative to allotment width, and Objective 9 which concerns landscaping.
[10] Exhibit 6, p 11
The DCP otherwise provides no real guidance about the desired location of taller buildings; but one apparent, primary aim identified by Mr Buckley is to encourage ‘... consolidation of lots to achieve taller buildings’[11]. That is what this proposal achieves and, plainly, it is a matter attracting considerable weight.
[11] Exhibit 6, p 11
In their joint report the town planners agreed that this proposal reflects a high degree of compliance with the ‘broad outcomes’ of DCP 1; and, also importantly, that under both the old and proposed new schemes it is possible for lower and taller buildings to co-exist[12]. Broad agreement about these questions is, in the face of the various passages from the planning documents set out above, unsurprising.
[12] Exhibit 6, appendix B: ‘Court directed meeting of experts – joint report’ pars 7, 9
It is not at all clear that conflict with the transitional scheme or the DCP actually arises, and arguable that their requirements and aims are satisfied. Before conflict with the planning scheme or DCP can be said to arise, it must be capable of being plainly identified[13]. While the planning documents here touch upon matters concerning height, scale and density, this is not a case in which conflict with them is readily discernible.
[13] Burmah Fuels (Qld) Pty Ltd v Redland Shire Council [1995] QPLR 103; Luke v Maroochy Shire Council [2003] QPELR 447, at 467
There is, of course, the general requirement that height be related to the locality of the project and surrounding development but, for the reasons traversed earlier in the context of visual impact, this is not a case in which it can be said that a building of six storeys is discordant or out of character. The proposal is different from the buildings immediately adjoining it, but not with the tenor of its general locale; and the difference is ameliorated (or, at least, successfully mitigated) by compliance with limits on site coverage, and layout and design. This analysis compels the conclusion that this is a case in which, in the absence of adverse impacts, no discernible conflict arises.
If, contrary to this view, conflict could be found the question is whether it is capable of being overcome if sufficient planning grounds exist. Some were advanced by Mr Schomburgk[14], including compliance with the transitional planning scheme and the DCP; similarity with other new, recent developments; and, lack of any potential adverse effects on the new IPA draft scheme. These are probably better categorised as negative, rather than positive, planning grounds in the sense that the absence of conflict is not, itself, a planning ground of the kind envisaged by s4.4.(5A).
[14] Exhibit 5, page 23
There are, however, some things which would qualify as positive: the planning scheme envisages multi-unit development in this area, and appears to encourage amalgamation of lots to that end; it plainly contemplates buildings of up to six storeys, as part of the provision of a diversity of building heights; and, this proposal compliments those professed goals. As Mr Buckley acknowledged, there can be no doubt that the 1996 planning scheme afforded opportunities to incorporate just this kind of development[15]. These grounds, which are positive in the sense they reflect and meet an apparent aspiration of the town plan, would be sufficient to overcome the faint whiff of conflict which, at the highest, might be thought to be detected.
[15] Exhibit 6, page 16
Mr Buckley also identified two alleged conflicts with the new, draft IPA planning scheme. The first is that the two storey low rise profile for this locality is offended and the second that, because the new scheme encourages the clustering of high rise buildings in particular nodes, approval of this application would render that policy unworkable.
An important, preliminary consideration is the weight to be given to the draft scheme in this appeal. As discussed earlier, it seeks to develop a strategy for the Esplanade area which ‘focuses on creating a series of high density nodes’[16] and purports to implement that strategy by maps, zones and codes which outline the nodes where high rise is permitted, and limit density and height. The subject land is, however, placed in the medium density zone where two storeys is an acceptable height solution and three can be permitted but only where the site has an area of 4,000 m2 and a frontage of 40 metres.
[16] Strategic framework Pt 2, 1.2.1.2, page 3
There are some unusual and puzzling aspects to these provisions: inexplicably, the nodes do not include a cluster of higher buildings to the west of the Pialba node (but immediately adjoining it), nor Allegra which is outside, although close to, the eastern end of the Torquay node. The current proposal is outside the Urangan Pier node, although closer to that node than Allegra is to the eastern boundary of the Torquay node.
The Coty principle[17] emphasises the importance of ensuring that a decision in a town planning case reached at a time when a proposed new planning scheme is under consideration should as far as possible be consonant with ‘…town planning decisions which have been embodied in the local scheme in the course of preparation’ and should not ‘… render more difficult the ultimate decision as to the form the scheme should take’. The application of the principle here was reaffirmed by the Queensland Court of Appeal in Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224, and Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41.
[17]Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117
The force to be ascribed to the principle and the weight to be given to a planning scheme which is still in draft form will vary, however, from case to case. As the Court of Appeal[18] said in Mt Marrow Blue Metal Quarries Pty Ltd v Morton Shire Council (1996) 1 Qd R 347 at 356-7:
It is evident that to accept the approach contended for by Mr Gore would be to invest the draft Plan with an invariable or unalterable quality that it will not enjoy if and when it has finally been processed and gazetted as a legally binding town plan or amendment of it. It would mean that the Council would in the meantime be bound to reject any application for development within the area of the draft Strategic Plan on the basis either that it was inconsistent with that draft or (as in this case) consistent with it and so would prematurely ‘entrench’ that aspect of the plan. In either event the Council will be forced to a position where, pending final adoption of the draft plan as law, it would be bound to refuse all applications for development approval in respect of land within the area. For a local authority so to act would inevitably involve it, sooner or later, in an unlawful abnegation of its statutory powers, functions and discretion as the local planning authority for which it would be made accountable in the courts.
It would in our opinion be a serious mistake to foster such an attitude among local authorities.
[18] per McPherson JA and Ambrose J
In Yu Feng Fitzgerald P said[19]:
Coty establishes no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed and usually will only be one of the factors to be considered, although in a particular case it might be decisive.
[19] (2000) 1 Qd R 306 at 328-9
In Lewiac the new draft planning scheme contained a height limitation to which this Court attributed considerable weight at first instance[20] but that occurred in a context where the respondent council had adopted a policy with a similar limitation three years earlier, and in previous proceedings the appellant had consented to an order which contained a condition limiting the height to something less than it now sought. Placing a great deal of emphasis upon the terms of the new draft plan in those circumstances is unsurprising.
[20]Lewiac Pty Ltd v Gold Coast City Council [1993] QPLR 181; Row, DCJ
In Provincial Securities Pty Ltd v Brisbane City Council [2001] QPELR 139 the new planning scheme had not been publicly notified and only came into existence a short time before the hearing. Skoien SJDC said, at 148:
[30] This application was made to the Council about 14 months before the new town plan came into effect and well before the Council modified it after the Minister’s first review of it. The appeal was heard before it came into effect. Provincial’s proposed development does not have the drastic effect on the new plan which Thomas J contemplated in Lewiac. Given those facts it would be unjust to give such weight to its rather more strongly worded provisions as to deny the proposal were it considered to be allowable under the superseded plan.
His Honour adopted a similar approach, but more readily, in Ugarin Pty Ltd v Logan City Council [2004] QPELR 392 where the plan was at a much earlier stage; Council had not formally resolved to propose it under IPA, and the draft had not been submitted to the minister; and it had not been placed on public display.
Materially, here, the application was made some five months before the public became aware of the contents of the new scheme, and its quite different approach to the siting of higher buildings. Albeit that the IPA scheme is now quite well advanced, the application of the Coty principle has to be considered in a way which both acknowledges its potential for influence, and is fair to the appellant. One of the factors which must impinge on the exercise is the IPA provisions permitting development applications under superseded planning schemes, which constitute a statutory acknowledgement that a new scheme, particularly in draft form, does not extinguish the one applying when the development application was made.
Where, as here, the new scheme does not appear to fit the prevailing position of existing high rise buildings and has, therefore, some inherent inconsistencies; involves an apparently radical departure from the previous town plan in its treatment of taller structures[21]; was not promulgated in any form when the application was made; and, when there is little or no conflict with the previous and still extant scheme, the new draft scheme cannot be given too much weight.
[21] A difference in planning principles which was very helpfully explained by Mr Schomburgk in his report, exhibit 5 pp 15-16.
Under the draft IPA scheme the site is designated Urban Locality and lies in the medium density residential zone, between the nodes where higher buildings are envisaged. As the Strategic Framework says, this zone is expected to hold development comprising between 15 and 35 housing units per hectare. Proposed multiple residential developments are to be assessed against codes – here, the Urban Locality Code. Like all codes in the draft scheme, it adopts a performance based format with a purpose, Performance Criteria (PCs), and corresponding Acceptable Solutions. PC2 of the Code provides that ‘…development is compatible with the scale and character of surrounding development’.
The Acceptable Solutions to that PC are ‘…that the maximum building height is two (2) storeys and 8.5 metres above natural ground level, or for sites greater than 4,000 m2 with a frontage of 40 metres or greater, the maximum building height is 3 (3) storeys or 11 metres above natural ground level.’. Hence, while the current DCP allows for buildings of up to 6 storeys on land with that area and frontage, the draft plan reduces that height to 3. The Multiple Residential Code contains similar requirements, with the relevant PC focusing on the question whether the design, size and bulk of the proposal is consistent with the desired character of the area.
This proposal does not satisfy the Acceptable Solutions for those two codes but the desired character of the area, as referenced in the Performance Criteria, has to be considered in light of what is already there, and already approved, which includes existing higher buildings and other current approvals. It is impossible to see how this area will achieve the homogenous character to which the draft scheme aspires; and, more importantly, how this proposal is necessarily in conflict with that existing character.
Mr O’Brien took a somewhat wider view of the area encompassed within the phrase ‘compatible with the scale and character of surrounding development’ but even on the more limited scale revealed by exhibit 17 (effectively, one block) there is concrete support for his conclusion that the existing character has changed, and is changing. Inspection strongly supported that view. Once that is understood, Council’s expressed concerns about this development unbalancing the new IPA scheme or thwarting its aims become less than realistic or compelling.
Within the limited confines of the weight to be given to the draft scheme here it is, again, difficult to see how conflict can be said to arise. This is particularly so when, as Mr Schomburgk pointed out[22], the draft IPA scheme has been changed since it was originally presented and advertised. In its first version it spoke of medium density residential areas having in excess of 20 dwellings per hectare but the later, amended form anticipates 15-35 dwelling units within that area and includes areas ‘along the Esplanade between the nodes and business centres’.
[22] Exhibit 5 pp 12-13
The circumstances obtaining in this area also mean little weight can be given to Council’s other expressed concern: that approval of this proposal will ease the path of others who wish to circumvent that new scheme when it is introduced. It would have been (as Mr Hinson SC submitted[23]) a relatively easy thing for the Council to have phrased new Performance Criteria for this area in a way which more explicitly turned the scheme’s face against anything other than low scale development. The threat is also made less vivid by the evidence which shows that amalgamation of existing small allotments on the scale achieved by this applicant is difficult, and relatively uncommon.
[23] T169
The appeal should, for these reasons, be allowed and the matter adjourned to permit the resolution of appropriate conditions.
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