Maxwell v Gold Coast City Council

[2001] QPEC 78

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Maxwell v Gold Coast City Council & Anor [2001] QPEC 078

PARTIES:

IAN CAIRNS MAXWELL and BEVERLEY MAXWELL
Appellants

and

COUNCIL OF CITY OF GOLD COAST
Respondent

and

RIALTO DEVELOPMENTS PTY LTD
ACN 084 954 405
Co-Respondent

FILE NO/S:

622 of 2001 (Sthprt) 3779/01 (Bris)

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitter appeal

ORIGINATING COURT:

Southport

DELIVERED ON:

20 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

22 – 24 October 2001

JUDGE:

Judge Quirk

ORDER:

Appeal dismissed

CATCHWORDS:

Integrated Planning Act s.6.1.30(3)
Vyonatis Pty Ltd v Brisbane City Council (2001) LGERA 206

COUNSEL:

Mr A.Skoien for the appellants

Mr W.Everson for the resondent

Mr T.Trotter for the co-respondent

SOLICITORS:

Robert W. Blank & Associates for the appellants

McDonald Balanda & Associates for the resondent

Quinn & Box for the co-respondent

1. This appeal is by adverse submitters against the respondent’s conditional approval of an application for a material change of use of land at Southport.  The subject land occupies an area of 2586 square metres on the northern side of Durham Street, towards its eastern end which meets the Regatta Parade Esplanade.  It has road frontage of approximately 60 metres. 

1. In the Transitional Planning Scheme for the Gold Coast City area, the land is included in the Residential – Dwelling House Zone as is almost all of the land east of Ferry Road in this area.  In the Strategic Plan the land is designated for detached housing.  Prior to 1985 the land comprised six subdivided allotments and an access strip.  These were then amalgamated and, until recently, the site was occupied by a single dwelling which has now been demolished. 

1. Essentially the proposal was to re-subdivide the amalgamated site to again produce six separate allotments five of which will have an area of 422m² (frontage 10.2m.) and the remaing lot 474m² (frontage 7.5m.).  Because of concerns regarding the form of development that might take place on the relatively small sized lots in this well established and attractive area, it was thought desirable to put the proposal forward as one which required approval of a plan of development which controlled building form, design and layout.  The relevant plan of development shows six detached dwellings located on the allotments created by the reconfiguration. 

1. It is unnecessary to go into the substance of the proposal which is described in detail in material placed before the Court.  The main attack upon the proposal by the appellant appeared to focus on the following points:

·     The proposal is in conflict with the provisions of the scheme for reconfiguration in the Residential Dwelling Housing Zone in that allotment sizes and frontages are less than the minimum specified in the scheme (particularly in Table 16.1);

·     The proposal will impact significantly upon the area’s character and amenity by reason of the intended density of development.

1. There was a good deal of discussion about whether the proposal should be considered as one for “integrated housing”.  This concept was one which was mentioned when the application was publicly notified and appears as a defined term in the Planning Scheme.  It is also found as a Column 3 (Permitted) Use in the Table of Zones for the Residential Dwelling – Housing Zone. 

1. The definition of integrated housing is given as:

“Integrated residential development undertaken pursuant to the provisions of AMCORD (Australian Model Code for Residential Development) as amended by the provisions of ss. 4.1.3 and 16.4).

Special provisions in respect of integrated housing are found in s.4.1.3 of the Scheme.  As Mr Priddle (town planning consultant to the co-respondent) pointed out in s.6.3.1. of his report, the proposal exhibits characteristics of such a form of development and is compliant (except in respect of maximum dwelling density) with the Scheme’s requirements.

1. I do not believe however that, in assessing the application, it is essential that one become entangled in the technicalities of the Scheme and distracted from a fair appreciation of the application for what it is and where it is.  This is particularly so in that, under the regime of the Integrated Planning Act, while appropriate weight must be given to applicable Scheme provisions, it is no longer the position that any development proposal may be prohibited by the terms of a planning scheme (Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206).

1. It is also noted that, as we are dealing with a “transitional planning scheme”, s.6.1.30(3) of the Act comes into play and those provisions of the repealed legislation which call for refusal of an application which conflicts with the Strategic Plan unless there are sufficient planning grounds to justify approval despite such a conflict must be considered.

1. In the appellant’s case it was suggested that such a conflict arose.  Attention was drawn to the stated intent for the “detached housing” designation in which the possibility of “integrated housing” was contemplated.  Particular emphasis was placed on Objective (b) which states:

“Integrated housing may be utilised in developed areas to facilitate and regulate a range of allotment sizes and housing types but development will be required to maintain an overall density which is compatible with dwelling houses on conventional allotments.  Large areas of housing on small allotments is not considered desirable but pockets of such housing as part of an overall integrated development is considered acceptable.”

1. The points were made that:

·     the area is not a “developing area”;

·     the proposal does not form part of an “overall integrated development”;

·     the density achieved by the proposal is higher than that compatible with dwelling houses on conventional allotments”.

The argument that conflict with the Strategic Plan is thereby demonstrated depends on the premise that the proposal can only be assessed as integrated housing and then in isolation from its surrounds.  I regard that as too narrow a view of the proposal and the way in which it should be assessed.

1. The proposal is for a planned development which involves detached housing although, as already stated, it exhibits characteristics of integrated housing.  A dwelling house is a Column 1 (Permitted Use) in the Residential – Dwelling House Zone.  Such development is expressly contemplated in the Detached Housing designation in the Strategic Plan. 

1. The contentious issue in this case is proposed allotment size and configuration.  These are matters that are dealt with in Part 16 of the Planning Scheme.  Section 16.1.1.1 makes it clear that relaxation of certain performance standards set out in Table 16.1 may be allowed having regard to identified criteria which include:

“The provisions relating to AMCORD and integrated housing”. 

The specific provisions for “subdivision for integrated housing” are found in s.16.4.  It was explained in evidence that, in the design of the proposal resort had been had to AMCORD and this was not really an issue.  Professor Holden, who is eminently qualified in the area of urban design, spoke of the merits of the proposal and the harmony with which it will exist with what can already be found in the area. 

1. Because of the historical subdivision pattern there is a mix of allotment sizes in the locality.  As was pointed out in evidence a majority of lots fronting Durham Street are less than the standard 600 square metres.  In the immediate proximity of the subject land eight allotments containing an area of 405 square metres can be found although some existing dwellings do occupy multiple sites.  However the potential for redevelopment of these simply cannot be ignored.

1. There is a trend (evidenced by AMCORD) towards a more flexible approach to lot sizing and configuration to meet community need for  greater variety in housing opportunity.  I do not believe that it is correct to deny that this is a “developing area” even though “redeveloping” might be a more apt description.  On the evidence given I am satisfied that the form of development which will result from this proposal will, in respect of its scale and character, not be out of keeping with what can be seen in the area. 

1. While the proposed development, seen in isolation, might not meet the density requirements referable to integrated housing, seen as an element of the area as a whole, the result would not, in my view, be inconsistent with the general strategies identified in the Planning Scheme.  Whatever inconsistency might be said to exist with selectively chosen statements in the Planning Scheme I am well satisfied that there are planning grounds demonstrated by the evidence to justify an approval in this case.

1. There is one other matter to which reference should be made.  Section 16.1.1.3 provides:

“There shall be an area of at least 17 metres wide by 17 metres long contained within any allotment provided that where an allotment abuts a canal, river, lake or other body of water this area shall be calculated only that part of the allotment above the highest recorded flood level”.

1. This provision sits very uncomfortably with the remainder of Part 16.  It would, in an important way, restrict the opportunity to provide relaxation in respect of the minimum frontage requirement of 17 metres stipulated in Table 16.1 for this zone.  Perhaps more importantly it is squarely at odds with what is contemplated by AMCORD and I note particularly s.16.4.1.3 which, in dealing with Subdivision to Integrated Housing provides:

“Any subdivision of land shall be in accordance with the provisions of AMCORD unless contrary provisions of this clause apply and shall also comply with the following additional provisions of this scheme”.

A large number of provisions are then identified but s.16.1.1.3 does not appear among them.  The provision is incongruous and, applying what was said in Vynotas, I find that it should not stand in the way of an approval in this case.

1. Some complaints were made in respect of potential traffic difficulties but, in this respect, I accept the evidence given by Mr Viney that, for reasons which he explained in his report, any additional traffic flows generated by the proposal will not have significant impact on residential amenity and although there will be an increase in traffic flow in Durham Street this flow will be of minor and totally acceptable proportions.  No parking problems will be created.

1. Evidence was received from Dr Maxwell and a number of other local residents who explained their opposition to the increase in residential density that this proposal will represent.  I understand their views which were fairly and evenhandedly expressed but, as must so often be said in this Court, the reasonableness of expectations entertained by parties must be judged by reference to the planning documents.

1. On the whole of the evidence I am satisfied that the onus of showing that this application is one that should be approved has been discharged.  The appeal is accordingly dismissed.