Malouf v Gold Coast City Council

[2012] QPEC 36

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Malouf & Anor v Gold Coast City Council [2012] QPEC 36

PARTIES:

NAAMAN GEORGE MALOUF AND GEORGE MARK MALOUF
(Applicants)

AND

GOLD COAST CITY COUNCIL
(Respondent)

FILE NO/S:

4719/11

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Planning and Environment Court

DELIVERED ON:

11 May 2012

DELIVERED AT:

Maroochydore Planning and Environment Court

HEARING DATE:

12, 13 & 14 March 2012

JUDGE:

J.M Robertson DCJ

ORDER:

The application is granted and adjourned to enable the parties to settle the amended conditions

CATCHWORDS:

PLANNING AND ENVIRONMENT- application for amendment of conditions of a development approval given by the Court- whether proposed changes amount to “permissible change”

PERMISSIBLE CHANGE- where approval to erect 7 storey residential building on beachfront at Palm Beach required transfer of approximately 20% of land to Council and erection of a seawall in accordance with Council Policy- where application Code Assessable- where constraints of the site and use of car stacking for underground parking required raising of basement roof which intruded into the A-line and corridor for access for emergency vehicles- whether intrusion of roof less than 1 metre above natural ground level was in conflict with the Code- whether amending car ramp gradients and structural issues were sufficient to constitute permissible change

Sustainable Planning Act 2009
The Ocean Front Land Code

Cases

Lormax Pty Ltd v Cairns Regional Council & Ors [2012] QPEC 3

Multispan Australia Pty Ltd v Department of Main Roads and Brisbane City Council [2008] QPEC 14

COUNSEL:

Mr T. Trotter for the applicants

Mrs N. Kefford for the respondent

SOLICITORS:

IPA Law for the applicants

McDonald Balanda & Associates for the respondent

1. The applicants have had the benefit of a development approval since February 2007 which permits them to construct a seven-storey apartment building on land at 197-199 Jefferson Lane, Palm Beach (the “site”).  The approval was pursuant to a consent judgment made by this court on 27 February 2007.  The conditions of approval were amended by consent pursuant to an order made by this court on 17 June 2011 and the number of units permitted was seven.  This approval (relevantly to this application) approved a set of plans dated 9 November 2011, including Conditions 1(a), 8, 41, and 51.

1. Condition 1(a) in the later approval is in these terms:

“It must be demonstrated that all structures above the ground level within the 8.1 metre setback from the A‑line are less than one (1) metre in height above the Natural Ground Level and of  a temporary nature only, i.e. they are able to be easily removed if maintenance work to the dunal area is required.”

1. Originally Condition 8 pursuant to the court order made on 27 February 2007 was in these terms:

“The mechanical car stackers used for the parking spaces adjacent to the eastern basement wall shall be Wohr Parklift or similar approved.  The car stackers shall provide for two 1.8 metre-high vehicles for each of the five units.”

1. In the court order made on 17 June 2011 by consent, Condition 8 was changed to read:

“The mechanical car stackers used for the parking spaces to the eastern basement wall shall be Wohr Parklift or similar approved.  The car stackers shall provide one normal height vehicle and one high vehicle for each of the 7 units.  Each individual stacker system shall not be accessible to persons other than the user/owner unless permission is given by the user/owner.  Access is to be prevented by use of roller door or similar device.”

1. Condition 41 provided:

“All buildings and other structures shall be set back at least 8.1 metres from the A‑line with the exception of the following:

·The basement, which is located totally below the Natural Ground Level; and

·Temporary structures (such as seating and floating decking) that is [sic] no higher than one (1) metre above the ground level and can be removed if maintenance of the dunal area is required.

The Appellant shall indemnify the Respondent and individuals acting under the instruction of the Respondent against all damage caused to structures located within the abovementioned set back area in the event of emergency, maintenance and access.”

1. Condition 51 provided:

“A qualified Surveyor shall provide certification to the satisfaction of the Respondent’s Chief Executive Officer that no part of the top of the basement car park slab extends greater than one (1) metre above Natural Ground Level at any given point of the site and that the portion of the basement within the 8.1 metre setback from the A‑line is located totally below the Natural Ground Level.  Confirmation shall be submitted to the Respondent prior to the pouring of the basement.  Any works shall not proceed past the ground floor until the Appellant receives confirmation from the Respondent stating that the height of the basement complies with this requirement.”

1. By the time of the changes to the approval made by consent on 17 June 2011, the applicants had dedicated 215 m² of the site to Council pursuant to Condition 46 of the February 2007 approval.  This meant that the development was to occur on the balance of the site, some 600 m².  In addition, the applicants have incurred obviously significant expense in constructing a seawall east of the A‑line, and the site inspection revealed that the foundations and basement walls have been constructed.  It is common ground that the seawall has been constructed and certified in accordance with the relevant Council policy and its 2005 design, which is attached to the Council policy.

1. In both earlier approvals it was contemplated that the roof of the underground basement would intrude into the A‑line but below Natural Ground Level.

1. The changes are sought for reasons set out at paragraph 37 of Exhibit 3, the report of Mr Ransom, who gave town planning evidence for the applicants:

“Whilst the expert reports of the traffic engineer addresses this issue in much greater detail, the proposal contains 3 car stacking devices, each of which accommodate 2 vehicles side by side, and on levels above and below each other.  The specific design is one which permits a vehicle to enter or exit the car stacking device without the need to remove the other vehicle which may already be within the stacker.  This car stacker design involves the construction of a trench along the eastern wall of the proposed basement and an allowance for adequate headroom to enable two vehicles to be lifted up and down to provide for the independent ingress and egress of each vehicle.”

1. Mr Trotter, in his written submission, explains the reason thus:

“15.In simple terms, if a particular car is needed to be accessed from the ‘old design’ stackers the exercise might involve:

(1)removing the car that was not required and finding space to park it; and

(2)removing the car that was required and finding space to park it; and

(3)moving the first car back into the stacker; and

(4)walking back to the second car and driving out.

16.The new stacker system allows, by reason of better design, to enable access at the first instance to be gained to whichever car is required.

17.The proposed ‘new design’ car stackers are shown at Appendix ‘A’ of the report of Mr Bitzios (traffic engineer for the applicants).  As a consequence of such new design, the driveway gradients need to be changed and the basement ‘lid’ over the stackers needs to be raised to provide the necessary clearance.”

1. By originating application filed 22 November 2011 in the Brisbane registry, the applicant sought orders that a request made under s 369 of the Sustainable Planning Act 2009 (the “SPA”) for permissible change to the conditions in the 27 February 2007 order be granted, which would delete Condition 41 and replace it with the following condition:

“All buildings and other structures shall be set back at least 8.1 metres from the A‑line with the exception of the following:

·      The basement; and

·      Temporary structures (such as seating and floating decking) that are no higher than one (1) metre above the ground level and can be removed if maintenance of the dunal area is required.

The Appellant shall indemnify the Respondent and individuals acting under the instruction of the Respondent against all damage caused to structures located within the above-mentioned setback area in the event of emergency maintenance and access.”

1. The application also sought that Condition 51 be deleted and that Condition 1 be deleted and replaced with a condition that provides a new set of plans incorporating the basement lid elevations.

1. Council opposes the changes sought on the ground that they are not a permissible change, in that the changes will result in a substantially different development and are not in themselves acceptable.

The Law

1. Section 367 of the SPA provides (relevantly):

“What is a permissible change for a development approval

(1)A permissible change, for a development approval, is a change to the approval that would not—

(a)result in a substantially different development;…”

1. Section 369 of the SPA relevantly provides:

“Request to change development approval

(1)If a person wants to make a permissible change to a development approval, the person must by written notice ask the following entity (the responsible entity) stated for the change or approval to make the change—

…

(d)if the approval was given by the court—the court; …”

1. Section 759 of the SPA provides as follows:

“Minister may make guidelines

(1)The Minister may make guidelines about—

…

(c)    the matters to be considered in deciding whether or not a change to a development application or a development approval would result in a substantially different development; …”

1. Such a guideline has been made.  Statutory Guideline 06/09 provides:

“A change may result in a substantially different development if the proposed change:
…

·    Dramatically changes the built form in terms of scale, bulk and appearance

…

·    Significantly impacts on traffic flow and the transport network, such as increasing traffic to the site

·    Introduces new impacts or increases the severity of known impacts …”

1. As the court is the responsible entity, it must decide and assess the request to change the development approval pursuant to ss 374 and 375 of the SPA. Section 374 of the SPA relevantly stipulates:

“Responsible entity to assess request

(1)To the extent relevant, the responsible entity must assess the request having regard to—

(a)the information the person making the request included with the request; and

(b)the matters the responsible entity would have regard to if the request were a development application; and

…

(2)For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give it the weight it considers appropriate to the planning instruments, plans, codes, laws or policies applying when the request was made.”

1. Under s 375 of the SPA, the court may either approve the request, with or without conditions, or refuse the request. Any conditions imposed must be relevant to the proposed change and comply with s 345 of the SPA.

The issues

1. The real issues ventilated at the hearing involved essentially Council’s submission that the proposed changes were in conflict with what is agreed to be the only relevant part of the respondent’s Planning Scheme, namely PC1 of The Ocean Front Land Code (the “Code”).  The Code relevantly is in the following terms:

“1.0   Purpose

This code seeks to ensure that development occurring in the City’s ocean beach areas is managed to ensure the protection of the property and the preservation of the beach environment.  This code also seeks to:

· protect the ocean front properties and the beach environment through construction of a foreshore seawall and footings that are resistant to erosion;

· protect and replenish the sand resources for the preservation and restoration of the City’s beaches;

· preserve visual amenity of the foreshore;

· protect and enhance the coastal environment, including water quality;

· ensure adequate access for foreshore seawall maintenance.

…

3.0Development provisions

Performance criteria            Acceptable Solutions

Development that is Self Assessable, Code Assessable or Impact Assessable
_________________________________________________

Setback from the Active Dunal Areas

PC1

All buildings and structures must be set back from the active dunal areas and/or the foreshore seawall line (A‑line) to enable:

(a)   protection of the foreshore seawall (boulder wall);

(b)   protection of the beachfront properties;

(c)   protection of the active dunal areas; and

(d)   access for emergency maintenance

AS1

The building and/or structure is set back not less than 8.1 metres from the foreshore seawall line (A‑line).

_____________________

1. This is because it is common ground that although there is no high rise development in Jefferson Lane between Eleventh and Twelfth Avenues, provided the basement roof does not extend more than one (1) metre above Natural Ground Level (which is conceded by Council), within the A-line, this proposal remains Code Assessable.  The other issues relate to proposed changes in grades to the car ramp providing access to the basement necessitated by the basement height changes, and impacts raised by Professor Brannock, who gave expert town planning evidence for the Council.

Discussion

1. As is common in matters of this kind, the applicants’ proposal changed slightly as the hearing approached and again in the course of the hearing, both in relation to the proposed thickness of the basement roof and the design of the car park ramp by Mr Bitzios (traffic engineer for the applicants).  Mr Beard, who gave expert traffic evidence for Council, nonetheless, with his usual equanimity, rose to the challenge and gave spirited evidence in relation to what became the focus of the driveway dispute, namely “Option 3”, which was produced by Mr Bitzios on the first day of the hearing.  Mr Gould (Council’s engineer, who has expertise both in civil and structural engineering) was also somewhat disadvantaged by the late introduction of Exhibit 10, a certification by Dr Hasham, a structural engineer on behalf of the applicants, as to the strength of the now proposed 300 mm thickness of the portion of the basement roof that will, on the new design, extend into the A‑line above ground level.  Even in compiling Option 3, Mr Bitzios was still contemplating a drawing with a basement roof thickness of 340 mm.  Mrs Kefford therefore expresses understandable concern that if the court grants the application and approves the changes, a significant degree of certainty and specificity is required in the wording of conditions, given the site’s location on the beachfront at Palm Beach.

1. I agree with her that it is irrelevant that the City Planning Committee recommended the changes in its meeting on 6 December 2011, which recommendation was not accepted by Council.  The fact that this is the first high rise development in this highly prized and valued street, and the first residential development in the City, involving the use of car stackers, may explain Council’s reticence in accepting the recommendation.  That is purely speculation and not relevant to the court’s final decision.

1. It is common ground that in assessing the proposed changes against PC1 and AS1, strict compliance is not required and the focus is on PC1 in a Scheme which is performance based in any event.  The real issue at the hearing focused on PC1(d) access for emergency services.  At the time of the various joint experts’ meetings (see joint experts’ report at pp 1-10 of Exhibit 1 Vol 2), the engineers agreed that no emergency access to repair the seawall would be undertaken during a storm event.  This is clearly correct, given the danger of operating heavy machinery on the seawall corridor or from the beach during a storm event.  It was also agreed that the proposed corridor (pursuant to the new design) was sufficient to allow appropriate machinery, namely a 20‑tonne excavator, to operate in the corridor, given that the excavator is 2.8 metres in width.  It was agreed between the engineers that the maintenance of the seawall after a storm event would occur from the beach with access being gained along the beach via the groyne which extends out from Eleventh Avenue to the south of the site.  It was, however, agreed that the basement roof must be designed to accommodate the load associated with a 20‑tonne loader.

1. As I have noted, Mr Gould was caught a little by surprise by Dr Hasham’s report.  Although he is not a structural engineer, Mr Knobel (engineer for the applicants) explained that with the new proposed basement roof thickness of 300 mm (in the A-line), he was satisfied (on the basis of Dr Hasham’s opinion) and the recommendation that 60 MPA concrete be used in the construction of the roof with extra reinforcing, that loads of well in excess of 20 tonnes could be accommodated.  During the hearing the applicants proposed a further condition:

“The basement shall be constructed in accordance with the approved plans provided that at no point within the 8.1 metre setback from the A‑line shall the basement be any higher than RL5.93m AHD.”

1. I am satisfied that the proposed new Condition 41, with the above addition, is an acceptable solution to meet PC1(d), and on the evidence does not conflict with the Code.

1. In relation to the traffic issue, Mr Beard maintains his objection to Option 3, because it did not strictly comply with the Australian-New Zealand standards published in 2005.  He fairly conceded that the Standard only deals with car stackers in relation to an issue that does not arise here, and that in effect, when it comes to their use in restricted residential sites such as this, the Standard is silent.  Ultimately, his position was that in every respect the applicants’ proposed design of the car park ramp was at the very edge of compliance and in two respects did not comply with the Standard, namely the 5.8 metre (as opposed to 6 metres in the Standard) platform length at the top of the ramp, and the 17.5% (as opposed to 15% in the Standard) grade at the transition point, which he thought might lead to scraping.  He conceded that these were minor variations and that the Standard was not a text book for the design of parking stations.  This accords with the conventional approach taken to this court in relation to the use of Standards:  per Rackemann DCJ in Multispan Australia Pty Ltd v Department of Main Roads and Brisbane City Council [2008] QPEC 14.

1. Mr Beard undoubtedly sincerely was concerned about the safety issue, but I think that can be accommodated, for a number of reasons.  Jefferson Lane is one way, so approaching vehicles will only be coming from one direction.  It has a very low volume of traffic and is a very low speed environment, as it functions as a laneway.  The “footpath”, to the extent that it even exists, is very narrow, and pedestrians use the road pavement.  Not only was this the evidence, but I actually saw this occur at the site inspection.  The development itself is small and will generate very low levels of additional vehicular traffic.

1. Mr Beard also had an issue about the height of the car stackers, which of course is not covered by any Standard.  There was much discussion about aerials breaking and people bumping their heads.  Given the way in which the stackers operate, I comfortably conclude that these concerns are unrealistic and agree with Mr Bitzios, based on his research of the Australian fleet, that there is almost no chance of either of these events occurring.  I also prefer his evidence regarding the ramp grades.  The differences are minor indeed, and his design is a safe and appropriate response to the very constrained nature of the car park design, occasioned undoubtedly by the need to gift 25% of the land to Council for construction of the seawall.

1. Professor Brannock raised some new issues, i.e. not raised at the joint experts’ meetings, concerning visual impacts from the beach as a result of the protrusion of the basement roof above natural ground level.  This simply ignores the fact that the basement wall eastern face will be covered by (a) floating decking and (b) landscaping.  Despite Mr Gould’s acceptance that the design would not exceed a metre above ground level, Professor Brannock nonetheless proceeded in his trial report to express opinions based on a different factual scenario.  He also attempted on a number of occasions to suggest that the joint experts’ report was not a complete record in circumstances in which he had not made complaint to that effect to Mr Ransom.  Mr Trotter reasonably objected to these attempts.  Professor Brannock’s whole evidence was coloured by these issues and I readily prefer Mr Ransom’s evidence where there is conflict.

Conclusions

1. With the changes contemplated by the proposed new conditions as set out in the new plans and with the additional condition referred to earlier, I comfortably conclude that the changes proposed do not constitute a substantially different development; that is, one that “is different in essence or essentially, materially or importantly different”:  Lormax Pty Ltd v Cairns Regional Council & Ors [2012] QPEC 3 at 3. For completeness, I should note that if I was found to be wrong in my conclusion that the new design does not conflict with the Code nevertheless I would have held, for essentially the reasons set out above, by application of the appropriate test, that the applicant had satisfied me that there are sufficient grounds to approve the changes notwithstanding the conflict.

1. The application is granted and I invite the parties to prepare an order consistent with these reasons that I can endorse without the need for any further appearance.