MC Property Investments Pty Ltd v Sunshine Coast Regional Council
[2009] QPEC 87
•30 September 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2009] QPEC 87
PARTIES:
MC Property Investments Pty Ltd (Appellant)
AND
Sunshine Coast Regional Council (Respondent)
FILE NOS:
284/08
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Maroochydore
DELIVERED ON:
30 September 2009
DELIVERED AT:
Maroochydore
HEARING DATE:
03, 04 & 05 August 2009, written submissions up to 14th September 2009
JUDGE:
Judge J.M. Robertson
ORDER:
The appeal is dismissed
CATCHWORDS:
Developer appeal; whether proposed 38 unit development conflicts with Intent of local precinct that such developments “be located close to the public transport facilities”; whether “public transport facilities” include both bus-stops and bus routes and such facilities as may be constructed as part of an “anticipated future provision of good bus services”; whether there are grounds to approve notwithstanding conflict, traffic issues.
Legislation:
Integrated Planning Act 1997 (Qld)Cases Considered:
Weightman v Gold Coast City Council [2003] 2 QD.R 441
Woolworths Lt v Maryborough City Council & Rokay Pty Ltd [2006] Q.P.E.L.R. 63
Hofer v Maroochy Shire Council & Anor [2008] Q.P.E.L.R. 278
MLK Newton Pty Ltd v Maroochy Shire Council [2007] Q.P.E.L.R. 259
Koerner & ors v MSC & J.T. Baines & L.J. Baines [2004] Q.P.E.L.R. 211
HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230COUNSEL:
Mr. G. Allan for Appellant
Mr. C. Hughes S.C. and Ms. S. Holland of Counsel for RespondentSOLICITORS:
P&E Law for Appellant
Legal Services Queensland for Respondent[1] MC Property Investments Pty Ltd (the appellant) has appealed against a decision by the Council to refuse its impact assessable development application for material change of use of its site at 34 – 36 Toral Drive Buderim (the site) for 38 Multiple Dwelling Units which, it is accepted, involves medium density housing. Council’s decision notice dated 4 November 2008 set out (9) reasons for refusal, (3) of which were abandoned prior to the appeal.
[2] The appellant has the onus and the hearing is by way of hearing anew and s.3.5.14(2) of the Integrated Planning Act 1997 (Qld) (IPA) applies.
[3] It follows that the correct approach is governed by the decisions of the Court of Appeal in Weightman v Gold Coast City Council [2003] 2 QD.R 441 and Woolworths Lt v Maryborough City Council & Rokay Pty Ltd [2006] Q.P.E.L.R. 63 and taking into account that s.3.5.14(2)(b) refers now to “grounds” and not “planning grounds”.
[4] The appeal is to be decided on the laws and policies applying when the application was made, but the Court may give weight to any new laws and policies that it considers appropriate.
[5] The appeal presents a difficult decision for the Court bearing in mind that there have been two decisions of this Court in relation to similar development applications in Toral Drive governed generally by the same planning scheme provisions.
[6] In Hofer v Maroochy Shire Council & Anor [2008] Q.P.E.L.R. 278 his Honour Judge Rackemann dismissed an appeal by a developer from a decision of Council refusing an application for 24 multiple dwelling units on land at 48 – 50 Toral Drive which is on the same side but west of the site and depicted in exhibit 3 (the aerial map). In an earlier decision of MLK Newton Pty Ltd v Maroochy Shire Council [2007] Q.P.E.L.R. 259, his Honour Judge White allowed an appeal against a refusal of a permit for a 120 multiple dwelling unit proposal on a 3.997 hectare site which at its western boundary abuts the site but which runs behind the properties on Toral Drive to the eastern end of Toral Drive and its intersection with Stringybark Road. Of course, neither decision is binding but demonstrates that, in the absence of a Master Plan response from Council in this particular part of the Shire, the Court must do its best to apply the relevant parts of the planning scheme in considering this particular development application.
[7] The extant reasons for refusal are as follows:
“1.The development is contrary to Desired Environmental Outcome No.2 (Social Equity and Liveability). In particular, it is considered that the proposal does not contribute toward the achievement of DEO No. 2 in that:
(a)the proposed density of the development is excessive given its location within Toral Drive;
(b)the proposed development is not compatible with the distinctive rural character and sense of place of the locality;
(c)the proposed density conflicts with the existing low density urban fabric of the area and has the potential to negatively impact upon it.
2.The proposal will exacerbate traffic congestion and significantly increase traffic volumes at the intersection of Stringybark Road.
5.The development compromises the intent of Stringybark Road West precinct of the Sippy Downs Planning Area. The site is not within convenient walking distance to Town and Local Centres or to public transport to warrant the proposed density.
6.The development does not comply with the Code for Nature Conservation and Biodiversity. The proposal does not give appropriate regards to the biodiversity values of the site, nor does it avoid further fragmentation of vegetation.
7.The development does not comply with the Code for Waterways and Wetlands. The removal of the vegetation and disruption to the drainage easement is not justified.
9. The development does not comply with the Code for Low-rise Multi-unit Residential Premises. The proposal does not comply with the minimum courtyard requirements for each unit as stipulated in the Queensland Residential Design Guidelines.”
[8] For the purposes of brevity I adopt his Honour Judge Rackemann’s identification of the relevant planning scheme context for this site as set out in paragraphs [5] – [15] of his judgment in Hofer. I also respectfully adopt what his Honour said at paragraph [17]. Mr Hughes S.C. for the Council in this appeal made similar observations to those made by Mr. Trotter in the Hofer case and compared the different emphasis in other Precincts within Planning Area 3.
[9] The principles applicable to the construing of planning schemes are well known and need not be repeated.
DISCUSSION OF THE ISSUES ARGUED IN THE APPEAL
[10] Sensibly the focus of the hearing was on Grounds 5 and 1(b) but not in relation to any compromise of (as apposed to being contrary to) the stated DEO, rather the debate focussed on conflict with the Intent of Precinct 7 in Planning Area 3 having regard to the character of that section of Toral Drive and “minimisation of impact on visual amenity” in that locality. Mr. Hughes S.C. did not argue that the proposal would involve a “an obvious and significant cutting across of that DEO in such a manner that its achievement…” would be compromised: per Wilson S.C. D.C.J. in Koerner & ors v MSC & J.T. Baines & L.J. Baines [2004] Q.P.E.L.R. 211 at 215, although Mr. Allan seemed to think that he did. There is no substance in this ground. I am satisfied that the proposal would not compromise the achievement of the DEO.
[11] Grounds 6,7 and 9 were not seriously pressed by Council. Based essentially on the evidence of Mr. Holliday and confirmed to some extent on inspection, I am satisfied that the proposal complies with the stated Codes, or could be appropriately conditioned to do so. There was some desultory debate about condition 2, which raised some heat about Mr. McClurg’s methodology in calculating that the daily traffic generation from the development “could be up to 340 vpd (two-way total).” In evidence he explained that this was based on the design of some of the units with self contained rooms and a greater than required allocation of car-parks. In my opinion, this issue is minor. Both traffic engineers agree that there will be an intensification of vehicle flows from the developments presently underway which will impact much more than this development on the capacity of the Toral Drive/ Stringybark Road intersection. Both hope that this might provoke a master plan response from Council which would include an upgrade of that intersection. In my view, the proposal may add to traffic volumes at the intersection but that, in line with the agreement reached between the traffic experts, “the existing … intersection has sufficient capacity to accommodate the subject development proposal, in addition to existing and approved developments.”
[12] The main focus of argument was alleged conflict with the Planning Scheme and in particular Precinct 5 in the Planning Area 3 in which the site is located. Precinct (5) Stringybark Road West is contained within the Master Planned Community Precinct class, as is Precinct (4) Stringybark Road East. The Intent to Precinct 5 is in the following terms (relevantly):
“This Precinct comprises relatively new detached housing on large lots. Due to the proximity of the southern part of this Precinct to the town centre and university, and the anticipated future provision of good bus services along Stringybark Road and Crosby Hill Road, it is intended that further new housing and infill development should be allowed in the future to achieve a wider range of residential dwelling types and densities.
Further north, the land is used for a number of low density rural related activities while the land within the Mountain Creek floodplain has been retained in a semi-natural state.
The Precinct should contain high quality residential development in accordance with a Local Area Structure Plan or other comprehensive Plan of Development approved by Council.
Small lot housing should be allowed at suitably accessible locations and medium density housing development should be located close to the public transport facilities. Any development of this Precinct should be designed to minimise impacts on the surrounding rural residential areas.
…
In assessing development applications in this Precinct, particular consideration will be given to:
…· Minimisation of impact on visual amenity.”
[13] As in Hofer and MLK Newton, it was submitted that the reference to “the surrounding rural residential areas” is a reference to impact of development in Precinct 5 on rural residential areas which surround Precinct 5 and not rural residential areas within the Precinct, as Council submits based on Mr. Venn’s evidence. Judge White in MLK Newton rejected that argument but, for the reasons expressed by Judge Rackemann in Hofer (at paragraph [21]), I think that submission is probably correct, but for the reasons expressed by his Honour (at [22]) it is unnecessary for me to finally resolve the dispute between the parties on this issue. Mr. Allan does not suggest that on a proper construction of the relevant parts of the planning scheme as a whole and, in particular the reference to minimisation of impact on visual amenity in the Intent to Precinct 5, that the character of Toral Road in and around the vicinity of the site is not a valid issue to be considered by the Court in assessing his clients development application.
CHARACTER AND VISUAL AMENITY
[14] “Amenity” as a concept in planning law has been construed as having a very wide meaning and can include issues of character and a sense of a particular place or locality.
[15] The evidence (confirmed on inspection) is that as one enters Toral Drive at its intersection with Stringybark Road, on the north-western corner is a 69 Unit development approved by Council and under construction, which adjoins a larger typical (approximately) half hectare lot with a relatively new detached house which has been approved for sub-division into 4 lots with two lots fronting Toral Drive. On the south-eastern side of Toral Drive there is a church on the corner of Stringybark Road, then a child care centre and then a detached house on a large block, which in turn adjoins a half hectare lot with a detached house which will (in part) be the access to Toral Drive for the MLK Newton development. Adjoining the proposed entrance to the MLK Newton site are (3) blocks each of approximately ½ hectare, which are heavily forested with protected vegetation and include a protected wetland. It is common ground that those lots will not be developed for any form of housing. Between the most western of these (3) lots is a detached house on a large block and then the site. On the north-western side of Toral Drive, after the proposed (4) lot subdivision, the remaining lots to the western end of Toral Drive are detached houses on large lots. From the western most heavily vegetated lot to the western end of Toral Drive on the same side of the street as the site, are sites with detached houses on large lots. It is common ground that at a point approximately at the western end of the 69 unit development on Toral Drive, the road reserve narrows from 20 metres to 16 metres. As can be seen from the cadastral map produced in Mr. Venn’s report as Figure 2 and confirmed on inspectition, the site’s frontage to Toral Drive is on a left hand chicane in the road which leads to a western end cul-de-sac.
[16] Mr. Holliday, the town planner who gave evidence for the appellant, was of the opinion that Toral Drive exhibited “two relatively distinctive characters”. In his report he was inclined to the view that the change in character occurred more or less at the powerline easement which runs north-south along the western boundary of the site. In cross-examination however, he accepted Mr. Hughes’ proposition that the change in character – from mixed uses including church, child-care centre, detached houses on large lots, medium density development (underway) at the eastern end, to “good quality low density detached housing on relatively large areas of land that is well represented to Toral Drive” – occurred approximately at the point where the road reserve narrowed from 20m to 16m. This was confirmed on inspection and was the general view of Judge White in MLK Newton.
[17] It would follow that a 36 multiple dwelling development on the site approximately 200 metres to the west of where the character of Toral Drive changes will impact on character and on visual amenity in that part of Toral Drive.
[18] To adopt what Judge Rackemann said about the proposal under consideration in Hofer and apply it to the proposed development here:
“The proposed development differs from that which exists in the part of Toral Drive within which the subject site is situated. The difference would not be a secret”.
[19] It is true as Mr. Allan submits that the landscape plan provides for considerable plantings which in time will soften the visual impact of the development, and the line of mature trees growing along the western boundary of the site with the electricity easement and in the easement itself, will further ameliorate the impact on visual amenity and character of that part of Toral Drive. Because of the avenue of mature trees on the electricity easement along the whole of its boundary with the site, I do not agree with Mr. Hughes that the building once built will appear as a wall of buildings to persons proceeding east along Toral Drive from its western extremity.
[20] In my opinion, the proposal with its landscaping plan deign features and existing line of trees does not conflict with the Intent of the Precinct in the sense that these features do in fact minimize to acceptable levels the impact of the proposal on the visual amenity of surrounding residents and persons using the street.
THE PUBLIC TRANSPORT FACILITIES ISSUE
[21] The critical issue or the “touchstone” (to use Judge Rackemann’s words in Hofer) is whether this development is “located close to public transport facilities”. Mr. Venn deals with the “Intent of Precinct 5” at p.27 of his report. Despite emphasising the importance of this part of the scheme, he does not attempt to construe the phrase “close to the public transport facilities”. I am sure that if he had, he would have been met with the same objection (one of a vast number) to what is clearly an expression of his opinion on a construction point at 3.10.5 where he is discussing the Intent for Precinct 4. Clearly this Court is bound by decisions of the Court of Appeal such as HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230 to construe the relevant provisions of the planning scheme, and to regard opinions of town planners upon a question of construction as irrelevant. The mistake that the primary judge made in Bachrach was to prefer one town planner’s opinion to that of another on a point of construction; instead of formulating her own opinion based on the circumstances of the particular application.
[22] There is no little irony in Mr. Allan’s strong reliance upon Mr. Holliday’s clear intrusion into construing the critical section of the Intent provision commencing at p.32 of his 224 page report. After referring to the issue of proximity of the Precinct to the Town Centre and University, he writes:
“126.The precinct intent also requires medium density housing to be located close to public transport facilities.
127.The planning scheme does not define the difference, if any, between “proximity” and “close”. Page 1368 of the 2nd Revised Edition of the Australian Macquarie Dictionary (dictionary) defines “proximity” as:
“1. Nearness in time, place or relation.”
and “proximate” as:
“1. Next, nearest; 2. Closely adjacent, very near; 3. Fairly accurate, approximate; 4. Next in a chain of relation.”
128.Page 356 of the dictionary defines “close” as:
“35. Near, or near together, in space, time or relation,.”
129.Whilst it is a matter for the Court to decide, the above definitions indicate to me that “close” and “proximity” have much the same meaning.”
[23] Mr. Holliday clearly there expresses an opinion of law but qualifies his opinion by acknowledging it is for the Court to decide.
[24] I do not think it is necessary for me to resort to dictionary definitions to construe the phrase “close to the public transport facilities” in the critical part of the Intent of Precinct 5 in the Planning Scheme. I am content to adopt Judge Rackemann’s commonsense approach in Hofer where his Honour said (at [40]):
“The planning scheme does not, in terms, define what distance is said to be “close” to the public transport facilities, for the purposes of that part of the intent for Precinct 5. The word “close” is a relative and imprecise term relating to the distance or interval between one thing and another. The determination of what is ‘close’ involves issues of fact and degree, in the relevant context. The subject provision is concerned with closeness to public transport facilities. The public transport facilities of relevance for present purposes are the bus facilities in Stringybark Road. Whether the proposed development is ‘close’ to those facilities should be judged by reference to the distance between the development and the closest bus-stops, being the point where the bus facilities are accessed.”
[25] In this appeal there was some debate about the meaning of “public transport facilities”. In so far as Mr. Allan may have faintly suggested that this would mean only the bus route, I am content to once again follow Judge Rackemann’s sensible approach of regarding “facilities” as being all relevant facilities which in this case (as in Hofer) are the route along Stringybark Road and the closest bus-stop to just beyond the intersection of that road with Jorl Court. I hold that the reference to “the public transport facilities” in this part of the Intent statement is to the existing public transport facilities.
[26] As in Hofer, there was much debate in this appeal about the significance of the “400m rule of thumb” referred to in the evidence of the traffic engineers. Mr. Allan is quite right when he says that “400 metres” is not mentioned in this context in the Intent of Precinct 5. As Mr. Hughes observes there is however reference to “400 metres” in other Precinct Intent statements in Planning Area 3. In their joint reports the traffic engineers “agreed that the recognized acceptable walking distance between residential uses and a bus-stop is 400m, although the local planning scheme mentions 400m to a bus route.” This last reference is to a number of such references in the Planning Scheme, for example in Planning Scheme Policy No. 6 and to statements in the Stringybark East Precinct.
[27] Mr. Allan is correct when he submits that the so called “400m rule of thumb” should not be applied proscriptively. Indeed to do would be to misconstrue the relevant part of the Intent of Precinct 5 in Planning Area 3.
[28] The traffic engineers agree that the subject site is approximately 650m walking distance to the nearest existing bus-stop which is slightly north of the Stringybark Road/ Jorl Court intersection. The nearest bus-stop for people travelling towards Buderim along Stringybark Road is further away on the eastern side of the road.
[29] Mr. Pekol (in figure 3.1) in his report has demonstrated that most (if not all) of the dwellings in the MLK Newton approval are outside the 400m radius from the closest bus-stop. It is a factor to be considered when deciding if the proposed site is “close” by reference to the relevant planning scheme provision, however one must have regard to the available road infrastructure along which people will actually walk to access the bus-stop rather then approaching the question solely from Mr. Pekol’s perspective.
[30] It is also relevant to note that at least the future residents of the MLK Newton development to the east of the access point on Toral Drive will be able to access Stringybark Road directly by proposed internal roads and pathways in the development.
[31] In Hofer, the site was “over 700 metres” from the nearest bus-stop and the evidence here is that the subject site is “approximately 650 metres” to that same bus-stop.
[32] In my opinion the site is not “close to the public transport facilities” and it follows that the proposal conflicts to a significant degree with the Intent for the Precinct.
[33] However, the case presented by the appellant extends further. In the first paragraph of the Intent to Precinct 5 there is reference to “anticipated future provisions of good bus services along Stringybark Road.”
[34] In his report, Mr. Pekol refers to Planning Scheme Policy No. 6 – Transport, Traffic and Parking which is taken up in the Code for Transport, Traffic and Parking in Volume 4 of the Planning Scheme. By reference to a reference in this code he states (at [78]):
“In my opinion, these extracts from MP2000 suggest the lack of an existing bus stop on Stringybark Road, in the vicinity of Toral Drive, is not sufficient reason to refuse this application on the ground of proximity to public transport, because a new bus stop could be readily provided at this location to serve the subject and adjacent multi-unit developments.”
[35] This is a reference to the possibility in the future of the location of a new bus-stop on Stringybark Road close to its intersection with Toral Drive. In the joint report, the traffic engineers
“Agreed that the subject site is located on the cusp of being within an acceptable walking distance of public transport subject to the provision of a new bus stop in the vicinity of the Stringybark Road/ Toral Drive intersection. This might require the relocation of the existing bus-stop located further north along Stringybark Road. However, the net result is likely to be an overall improvement in local public transport accessibility for the area.”
[36] In his oral submission Mr. Allan submitted that if I was against his primary argument that the proposal was close to existing public transport facilities, nevertheless I could allow the appeal on the basis that it could be appropriately conditioned so as to place an obligation on his client to provide the new bus-stop in conjunction with Council and any other responsible authority.
[37] He expanded on this submission in his written outline dated 14 August 2009 (paragraphs [101] – [128]). I invited a response on this point from Council and was favoured with a detailed written response from Mr. Hughes which dealt with other parts of Mr. Allan’s written outline as well as the “new bus-stop” proposal at [6] – [7] and [17] – [27]. Mr. Hughes submission lead to a typically robust response from Mr. Allan which was received on 14.09.2009. I have carefully considered these extensive submissions.
[38] There is some guidance in the planning scheme as to the provision of future transport facilities and in particular bus-stops. For example in Precinct 1 in Planning Area 3 under Access and Movement Network – Public Transport, it is stated that: “the design of … Stringybark Road should provide for bus-stops approximately every 400 metres …”. If a new bus-stop was constructed at the point suggested by Mr. Pekol this may require the re-location of the existing bus-stop near Toral Drive intersection with Stringybark Road which is opposite a small commercial area at the north-east corner of Stringybark Road and Goshawk Boulevard which would probably have adverse planning implications. The traffic experts did not recommended any re-location of this bus-stop in evidence.
[39] The same issue arose in Hofer albeit in a more peripheral way than in this appeal. As far as I can tell from reading the judgment, the appellant in that appeal did not advance the argument now made by Mr. Allan, rather it argued by reference to “the anticipated future provision of good bus services along Stringybark Road…”, that it could be reasonably expected that there would be a bus-stop in Stringybark Road at or near its intersection with Toral Drive particularly if other multi-unit developments are then constructed.
[40] On the evidence before me a number of those developments are either under construction or about to commence, and yet, despite the age of the planning scheme there is still no evidence of planning to give effect to the intent that bus-stops be located at every 400 metres along Stringybark Road. There is no evidence of the attitude of Translink which would have to play a part in the planning and design.
[41] Mr. Hughes SC submits that the proper approach is to assess this proposal in relation to this issue by reference to existing public transport facilities. Judge Rackemann in Hofer seems to have proceeded on the basis that even if a bus-stop was constructed at the intersection of Toral Drive and Stringybark Road, it would still not be “close” in the sense in which that word is used in the Intent to Precinct 7. At [49] he writes:
“I am not satisfied that the proposal is “located close to the public transport facilities”. It would be remote from the existing bus stops in Stringybark Road and would be closer, but not close, to any future bus stop located at or near the Toral Drive / Stringybark Road intersection.”
[42] At [53], after referring to the location of the Hofer site at the western extremity of a long cul-de-sac, he wrote:
“The consequence is that it is not located close to the existing or likely future public transport facilities along Stringybark Road.”
[43] In the joint experts report to the Court, the traffic engineers agreed “that the site is located on the cusp of being within an acceptable walking distance of public transport subject to the provision of a new bus stop in the vicinity of the Stringybark Road/ Toral Drive intersection”. Whether the proposal is “close to the public transport facilities” is ultimately a question of fact, and being “located on the cusp of being within an acceptable walking distance of public transport” would not, in my opinion qualify as being “close” in the sense in which the word is used in context in this part of the Planning Scheme.
[44] However, it is my opinion that when construed as a whole and in the context of the other relevant parts of the planning scheme the words “should be located close to the public transport facilities” (my emphasis) in the Intent to Precinct 7, is a reference to the public transport facilities existing at the time the assessment is made. If the planning scheme authors had intended that in considering this “touchstone” in the Intent to Precinct 7, the assessment manager, in considering a proposal to locate medium-density housing development in the southern part of the Precinct, should also have regard to anticipated future public transport facilities, this would have been clearly stated.
[45] Following the Weightman approach, I now turn to the “grounds” said to justify approval notwithstanding the conflict.
GROUNDS
[46] The grounds relied upon based primarily on Mr. Holliday’s evidence are similar to the grounds advanced in Hofer. There is no doubt that the proposal will provide additional multiple dwelling units, but there is no hard evidence of any particular need despite projected population growth in the Planning Area. The 69 unit approval (underway) and the MLK Newton (120 units – soon to commence) will address such issues and will satisfy the planning intent to provide more housing variety and choice. These “grounds” are not sufficient to justify approval despite the significant conflict that I have identified.
[47] The appeal is dismissed.
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