MLK Newton Pty Ltd v Maroochy Shire Council

[2006] QPEC 128

PLANNING & ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	MLK Newton Pty Ltd v Maroochy Shire Council [2006] QPEC 128
PARTIES:	MLK NEWTON PTY LTD (ACN 105 853 138) (Appellant) v MAROOCHY SHIRE COUNCIL (Respondent) STATE OF QUEENSLAND (First co-respondent by Election) PETER MYERS, J ROWLEY and L ROWLEY (Second co-respondents by Election)
FILE NO/S:	199 of 2005
DIVISION:
PROCEEDING:	Appeal
ORIGINATING  COURT:
DELIVERED ON:	19 September 2006
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr P J Lyons QC and Mr B D Job for the appellant Mr C Hughes SC for the respondent The second co-respondents in person
SOLICITORS:	Warlow, Scott Lawyers for the appellant Maroochy Legal Services for the respondent Ms L A Marshall instructed by the Crown Solicitor for the first co-respondent The second co-respondents in person

Introduction

[1]      The land, the subject of this appeal, is formally described as Lot 29 on RP 226599 and Lot 4 on RP 233840. By reference to fig. 3 of ex 1 Lot 29 is the large rectangular parcel of land in the centre of the locality map running approximately east/west and having an area of 3.997 hectares. The smaller parcel of land abuts the larger parcel to the north and has an area of 5,000 square metres or .5 of a hectare. The large parcel has a frontage to Stringybark Road to the east. The uncoloured area to the south of the large parcel is the road reserve for the Sunshine motorway. The smaller parcel Lot 4 has a frontage to Toral Drive.

[2]      The proposed development is illustrated on the layout plan ex 6. It is proposed to construct 120 two storey dwelling units in a townhouse configuration on Lot 29. It is proposed that access to Lot 29 be provided from Toral Drive on the western side of Lot 4. It is proposed that the existing house on Lot 4 be relocated to what I imagine will be a new and smaller lot on the eastern side of existing Lot 4. Of the total of 120 units, 110 are proposed as three bedroomed and 10 as two bedroomed. 60 units will have a double garage, while 60 will have a single garage. All units will be accessed from rear driveways and will have a ground level courtyard facing the internal streets. It is anticipated that all units will be air-conditioned. A 15 metre wide landscape buffer is proposed to be established along the boundary with the Sunshine motorway. No units will be constructed within that buffer strip. There will be a 10 metre landscaped buffer on the Stringybark Road frontage within which no units will be constructed.

[3]      Access to Stringybark Road is problematical. Stringybark Road crosses the Sunshine motorway by an overhead bridge. The slope of Stringybark Road to the north of that overpass varies in height above the natural ground level so that the construction of a significant vehicle access on to Stringybark Road would be difficult. Even if the access could be constructed, safety issues would arise by reason of the close proximity to the overpass. It is therefore proposed that emergency vehicle access only be available from Stringybark Road. However, it is anticipated that pathways will enable pedestrians and cyclists to access Stringybark Road at the eastern boundary of the proposed development. It is tolerably clear that the difficulty with access onto Stringybark Road necessitated the acquisition of Lot 4 to be used as the means of the major vehicular access to the proposed development.

[4]      Lot 29 is at present largely undeveloped. There is a single storey dwelling constructed at the eastern end of the subject land. Access to that dwelling is presently obtained from Stringybark Road at the north eastern corner of Lot 29. This access is primitive and not realistically suitable for permanent access to other than a single dwelling. Lot 29 has been substantially cleared of vegetation, apart from a few isolated trees within the site and some more dense trees and bushes around the perimeter of the site. There is an existing single storey dwelling on Lot 4, located towards the Toral Drive end of the lot. There is some significant mature vegetation remaining on Lot 4, although it is obvious that some areas have been cleared.

[5]      To the north and west of the site around Toral Drive and Jorl Court are a number of what may be conveniently described as rural residential sized allotments. Not all of these allotments are used for residential purposes and I will discuss those uses in more detail later. I think it is fair to say however that the dominant reasons for the respondent’s refusal of the application and the issues for consideration on this appeal relate to the various impacts which the proposed development will have on people living on the rural residential allotments around Toral Drive and Jorl Court. However the level of impact on the residents of those allotments which might be permitted can only be assessed in the context of the respondent’s planning scheme. It is therefore appropriate that I deal with that issue first.

The Planning Scheme

[6]      Maroochy Plan 2000 is a Planning Scheme prepared pursuant to the provisions of the Integrated Planning Act 1997 as amended. It is an imposing document. The evidence and the South East Queensland Regional Plan 2005-2026 suggest that there has been in past, and will continue to be in the future, significant population growth experienced in the Shire accompanied by commensurate demand for housing and the comprehensive range of facilities and benefits which people living in an urban area expect. The size of the plan and its contents reflect the difficult and serious task which the respondent faces in adequately planning for the future and its willingness to grapple with those difficulties.

[7]      Although some submissions have been directed towards what might be described as philosophical statements in the introduction to the Planning Scheme in my view no useful purpose would be gained by discussing them. However, there are some provisions of the introduction to which I shall return to explain my approach to the more detailed planning provisions.

[8]      Some provisions of the Strategic Plan are of general relevance. The subject land is contained within an area having a preferred dominant land use designation of “Urban”. It is described in s 3.4.1 as follows:-

“The urban allocation identifies areas suitable for residential premises of varying densities but allows at specific sites for retail, commercial, community services and general industrial activities required to serve the day to day needs of local communities and which are of a scale appropriate to these needs.”

Under the heading Section 3 - URBAN DEVELOPMENT.
In s 3.2 a key issue is identified as follows:-

“The advantages in facilitating higher densities and encouraging in- fill and redevelopment without compromising living standards for potential or existing residents and visitors.”

3.3 Urban Strategy
The following outlines the elements of the planning strategy to be
employed in those areas shown as Urban and Permissible Area for

Rural Residential on the Strategic Plan map.

3.3.1	The principal element of the strategy is the allocation of urban areas and permissible areas for rural residential which recognise the broadly different residential categories containing urban communities and providing separation between communities with characteristic rural and natural landscapes and protecting good quality agricultural land and significant natural and scenic resources from urban expansion.
3.3.2	The Urban allocation indicates areas existing and preferred for predominantly residential use. A range of ancillary uses such as commercial and retail, social and education facilities and industry may also establish within urban areas.
…
3.3.4	Specific areas have been included within the Permissible Area for Rural Residential on the basis that they are considered to contain land suitable to this form of closer settlement within the time span of this plan. This includes:

Areas of in-fill in locations where rural residential is the dominant land use.

3.4	Objectives and Implementation Measures
…

3.5.1 To develop upon and consolidate existing residential areas and containment of the existing urban form and structure as shown on the Strategic Plan map. Particular weight has been placed upon the containment of the creation of rural residential lots. This emphasis allows greater efficiencies in the delivery of social and physical infrastructure and provides greater protection for good quality agricultural and rural land and the considerable natural resources of the Shire.

[9]      In my view the proposed development is generally consistent with the preferred dominant land use. It is a response to the desire for in-fill and to facilitate higher residential densities. I detected no conflict with the Strategic Plan. However there are number of provisions in volume 1 of the Scheme which make it clear that it is necessary to look to more detailed and localised provisions of the Scheme for the purposes of assessing impact. Two examples of these are contained in the following:-

“2.3 Explanation of the way the Shire is divided for the purposes
of this planning scheme.
…
(4) Proposals for impact assessable development will be assessed

against the statements of desired local character (made up of the location and role, vision statement and key character elements) for the planning area and the statement of desired precinct character for the individual precinct in which the development site is situated which are set out in Volume 3.

(5) Proposals for impact assessable development will also be assessed against the Strategic Plan (Volume 2). The detailed local planning provisions in Volume 3 are intended to be based upon and reflective of the general principles in the Strategic Plan. However it is the planning area provisions in Volume 3 which represent Council’s specific planning intent for the relevant localities.

1. I turn now to the more specific provisions. The subject land is in planning area No. 3 – Sippy Downs. Some relevant provisions are as follows:-

   “3.3.1 Location and Role
   This planning area comprises the site of the Sunshine Coast
   University, lands designated as “District Centre” and “Urban” by the
   Strategic Plan and adjoining lands along the Shire boundary.

   This planning area is intended to provide for the ongoing development of the University, in conjunction with a new district centre and surrounding residential communities. It is also intended to recognise and provide for the protection of the significant environmental values of the Mooloolah National Park.”

   Under the heading Vision Statement the following appears:-

   (b) Sippy Downs Township

   (i)         A university town.

   This planning area may ultimately comprise a number of discrete but connected communities each containing a diversity of housing types, a range of business, retail and employment facilities, schools, parks, social and cultural facilities all within easy walking distance. The Sippy Downs Township will comprise a town centre core precinct and a town centre frame precinct and will be characterised with a strong relationship with the university.

   The town centre core precinct will provide the main retail, commercial and civil uses for the township and the mixed use precinct will contain a number of sub-precincts that support the town centre core. These sub-precincts include the following:-

• Sippy Downs East and Sippy Downs West neighbourhoods that will provide most of the residential population to support the town centre.”

The subject land is not within the Sippy Downs Township area. It is close to it. Sippy Downs Township is on the southern side of the Sunshine Motorway. The subject land, as I have indicated, is on the northern side. This does not of course mean that the location of Sippy Downs Township is irrelevant to the proposed development. The subject land is located in a convenient position to contribute to the housing needs of residents as the population of the Planning Area No. 3 grows.

1. The subject land is contained within the Stringybark Road West Precinct.

2. At page 101 of volume 3 of the plan the following appears:-

   Stringybark Road West (Precinct Class – Master Planned

   “(5) lots. Due to the proximity of the southern part of this precinct to this 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 in-fill development should be allowed in the future to achieve a wider range of residential types and densities.

   Community)
   Intent –

   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 impact on the surrounding rural residential areas.

   Preferred and acceptable uses

   development assessment (refer Volume 1) for the master planned community precinct class.

   The following uses may be considered consistent with the intent and desired character of this precinct, and suitable for inclusion in detailed master planning, where appropriately located, sited and designed:

• Multiple dwelling units.

1. Also in relation to Planning Area No.3 – Sippy Downs, the following appears:-

   “3.3.3 Key Character Elements

   (2) District Overview

(a)

Preferred dominant land uses. dominant land uses have been determined.

(i) The areas shown as “urban” are the Sippy Downs Township, the Crosby Hill Road urban area and the Kiwana Estates land. These are areas considered suitable for residential development of varying densities but allow for retail, commercial, community services and limited compatible industrial activities required to serve the day to day needs of local communities.

Development within these areas is intended to be of a form and character which embraces the concepts of urban villages and transit oriented development; that is, the development of complete and integrated communities containing housing, shops, employment, schools, parks and civil facilities.

In order to maximise the economic viability and vitality of the town centre core and the public transport terminus, and to minimise the use of private vehicles:

• There is a need to encourage higher densities of development throughout the community and an implied increase in intensity in and use towards the town centre core.”

On fig. 3 - 3.3.3(a) the subject land is contained in the Crosby Hill Road Urban Area at that area’s boundary with Sippy Downs Township. As a general proposition therefore I am of the view that the above provisions tend to favour the proposed development.

1. One then returns to the following paragraph in the statement of intent for the Stringybark Road West Precinct:-

   “Small lot housing should be allowed at suitable accessible locations and medium density housing development should be located close the public transport facilities. Any development of this precinct

   should be designed to minimise impacts on the surrounding rural
   residential areas.”

   I am of the view that the subject land is located close to the public transport facilities and it is therefore in a suitable location for the establishment of medium density housing. There is no dispute that the proposed development constitutes medium density housing. I accept the submissions made on behalf of the appellant that –

(a)	The proposed developments falls comfortably within the three storey (12 metre) height limit for medium density residential development in the Stringybark Road west precinct.
(b)	The proposed development falls comfortably within the preferred maximum density limits for multi-unit residential premises in the Stringybark Road west precinct.

1. There is a dispute as to the proper construction of the final sentence of the paragraph set out above. Mr Hughes for the respondent submits that the words “rural residential areas” refer specifically to the Toral Drive/Jorl Court rural residential areas. Counsel for the appellant submit that the words refer to areas identified within the scheme as being a “Permissible area for Rural Residential”. Such areas are identified on the Strategic Plan map. The Toral Drive and Jorl Court rural residential allotment are not within any of those areas. There is such an area, of substantial size located to the west of the Toral Drive/Jorl Court area. There is a smaller area to the north of the Toral Drive/Jorl Court area.

2. I am firmly of the view that Mr Hughes’ submission is correct. In my view the statement of precinct intent acknowledges that at the time of the introduction of the plan that the precinct “comprises relatively new detached housing on large lots”. When one looks at the precinct map (map 6 ex 3) it may be observed that the description applies to a substantial part of the precinct area. In fact Toral Drive and Jorl Court comprise a significant part of the precinct area. Further, elsewhere in the scheme the areas designated “Permissible Area for Rural Residential” are given that designation with a considerable degree of formality and are referred to in precisely those words every time they are mentioned. In my view if the scheme intended to refer to those areas in the Statement of Intent for the Stringybark Road West Precinct the final sentence would have read –

   “Any development of this precinct should be designed to minimise impacts on the surrounding Permissible Areas for Rural Residential.”

   However, I should offer a word of caution. The sentence of the Statement of Intent cannot be tortured into meaning that a development must be refused if it has any impact on any part of the surrounding rural residential areas.

3. Before considering specific impacts in detail I want to make a few general observations, particularly about the concerns expressed by some of the present residents of Toral Drive. I accept that some of the present residents of Toral Drive enjoy a very high standard of amenity. I accept also that the concerns they have expressed about the effect of the proposed development on that amenity are genuinely and passionately held. Whilst many judicial officers might have great sympathy for them (as I do) decisions of the Planning and Environment Court cannot be based on sympathy or prejudice. Decisions of the Planning and Environment Court must be based on evidence and just as importantly the relevant statutory provisions and, in particular, the planning scheme. In my view the current level of amenity is contributed to by the existence of the larger parcel of the subject land in an almost passive and undeveloped state, I am also of the view that the high level of amenity is contributed to by the undeveloped state of the three allotments (Lots 5, 6 and 7) immediately to the west of Lot 4. In my view the residents of Toral Drive who object to the proposed development cannot reasonably claim to be entitled to have that level of amenity continue. That is particularly so in relation to Lot 29. By reason of the extracts from the Planning Scheme which I have set out above, in my view the Planning Scheme favours medium density housing development on the subject land, subject to the development being “designed to minimise impacts on the surrounding rural residential areas”. Subject to that proviso, the residents of Toral Drive should have reasonably expected that medium density housing development would take place on the subject land.

4. The way in which their concerns were expressed by some of the residents of Toral Drive who gave evidence and/or gave statements suggests that they fear that the proposed development would become some sort of ghetto or slum inhabited by lawless, dysfunctional people who will lead a lifestyle substantial different to their own. There is just no evidence to support such a view. The plan of development suggests that the development will be of a reasonable standard. In my view it will attract a mix of owner/occupiers and owner/investors, the latter of whom will no doubt let their townhouses to tenants. Owner/occupiers of townhouses may be different to rural residential residents in that they choose a substantially different mode of residential accommodation. Given the very high standard of housing constructed in Toral Drive it may fairly be said that at least some owner/occupiers of townhouses in the proposed development may not be as financially well off as some of the residents of Toral Drive. However, neither of these factors is an indication that owner/occupier residents of townhouses are more likely to lead an anti-social lifestyle disruptive to their neighbours. It is probably fair to say that there have been examples of urban residential areas which have over time accumulated a disproportionate number of residents who behave in an anti-social and disruptive manner. However, there is no evidence to suggest that this proposed development is likely to fall into that category. It must be remembered that one of the most effective curbs on anti-social behaviour by a tenant is the economic interest of the landlord. Tenants who behave in an anti-social manner towards their neighbours will often also be rent defaulters and cause damage to the rented premises. The economic interest of the landlord, if nothing else, will likely motivate the landlord to have the tenants removed. It must also be remembered that one of the greatest curbs on anti-social behaviour is the censure from other residents. If there is anti-social behaviour by any particular occupier in the proposed development that behaviour will have a much greater impact on other residents of the proposed development than it ever could on the residents of Toral Drive.

1. I will deal with some of the practical or physical impacts which have been raised during the course of evidence. I am satisfied that the design of the development will minimise any visual impact which the proposed development will have on the surrounding rural residential area. Firstly, the size of the lots along Toral Drive in my view will contribute significantly to removing any visual impact. It must be remembered that Lot 1 is a church and Lot 2 is a childcare centre. These are not rural residential uses and the nature of the uses are such that the small proportion of the proposed development which will be located on the other side of their rear boundaries will not have any significant visual impact. The house on Lot 3 is constructed towards the front of the allotment and it is well vegetated towards the rear. Lot 4 is involved in the proposed development and need not be considered. Lots 5, 6 and 7 are in single ownership, undeveloped, and substantially vegetated. If and when those allotments are developed for rural residential purposes then the developers will be able to take account of the proposed development on the other side of the rear boundary in siting a house and introducing appropriate landscaping treatment.

2. Ex 28 illustrates well the lack of any substance in a complaint about visual amenity from those residents of Toral Drive who gave evidence. Apart from Mr Dulihanty it is inconceivable in my view that any of the other parties will be significantly adversely affected in respect of their visual amenity. As I have already said even Mr Dulihanty will not have his visual amenity adversely affected by the proposed development. However, there are other aspects concerning Mr Dulihanty which require more detailed treatment to which I will turn later. Further, along the northern and western boundaries of Lot 29 but located on the adjoining rural residential allotments, is a drainage easement. The visual amenity lf the residents may be further secured by imposing a condition that the applicant landscapes that drainage easement where necessary. As I understand it the applicant is willing to submit to such a condition. It must also be remembered that the whole 120 townhouses are not going to be constructed on one spot. They will be spread over an area of almost four hectares. Even if Mr Dulihanty were able to see the townhouses immediately behind his lot, his visual amenity would not be affected by the presence of most of the lots in the western area of the subject land and many of the lots in the eastern area. Similarly, for residents of Lot 8 and Lot 46 which adjoin the western and northern boundaries of Lot 29 at the western end, if they are able to see any of the proposed development at all it will only be those townhouses which immediately adjoin their boundaries. Their visual amenity can be in my view very adequately protected to the extent that it is needed by landscaping in the drainage easement.

3. Similar considerations in my view arise in relation to concerns about noise and smells.

4. Mr Hughes SC on behalf of the respondent and, in effect, on behalf of the third co- respondents has made submissions concerning the adverse effect that the proposed development would have on the rural residential character of Toral Drive. Although the Statement of Intent does not expressly refer to “character” I accept that it is a relevant potential impact which may be taken into account. I also accept that emotional or psychological issues i.e. the “feel” of the area as considered in Broad v Brisbane City council (1986) 2 QdR 317 is a relevant impact.

5. In my view Toral Drive for its whole length cannot be considered to have a rural residential character. The location of the church and childcare centre near the intersection of Toral Drive and Stringybark Road substantially removes the rural residential character of the street at its entrance. Further, having the childcare centre immediately next door significantly detracts from the rural residential character of Mr Dulihanty’s property. The two allotments on the northern side of Toral Drive at its eastern end are in private ownership and are rented. The owner wishes to develop those allotments in a generally similar way to the proposed development. I take no account of that desire and nor do I consider the likelihood of any development being approved to be relevant in this case. The point is that the owner is not affected by concerns about the character of Toral Drive. The rural residential character of those two allotments are also compromised by the presence of the church and childcare centre. In my view the rural residential character of those allotments is also compromised to some extent by the proximity to Stringybark Road which is on all accounts quite busy. In summary, I accept that there is a distinct rural residential character about part of Toral Drive. It is quite impossible to define a precise boundary for such character on a map. However, in my view, that part of Toral Drive which has a rural residential character of any significance commences to the west of Lot 4, the smaller parcel of land, the subject of this application.

6. As to the “feel” of Toral Drive the problem is that only a minority of Toral Drive residents have expressed any concern. A number of residents have been silent. A number of residents positively support the proposed development perhaps out of a desire themselves to undertake similar townhouse developments on their properties. Once again, I give no weight to that desire in terms of considering any anticipated change in the western end of Toral Drive. The point is, however, that overall the evidence does not support a strong general feeling amongst residents of Toral Drive that the proposed development will significantly change the feel of their neighbourhood. Perhaps more importantly, I am satisfied that he proposed development would have minimal adverse impact on the rural residential character and the “feel” of that part of Toral Drive to the west of Lot 4. I should also say that in relation to this issue I have taken into account traffic effects. I will discuss these in more detail a little later. However, on this point I simply express the view that I am satisfied that the proposed development will generate minimal additional traffic along Toral Drive to the west of Lot 4.

7. Mr Hughes SC also addressed the importance of separating the uses in a Town Planning sense. I accept the evidence of the town planners in this regard. However, the extent of the separation required depends very much on the individual situation. For instance, if the subject land was intended to be turned into an industrial estate one might expect a substantial separation from the rural residential use of the western end of Toral Drive. However, in this case the proposed development and the western end of Toral Drive will have the same use, namely residential. Further, the extent of the separation required will depend significantly upon practical impacts of the proposed development upon the western end of Toral Drive. As I have already indicated I am of the view that such impacts if any, which might arise will be minimal. Therefore although I accept that some formal separation is required, I am satisfied that the drainage easement and comprehensive landscaping of it will provide sufficient separation between the proposed development and the western end of Toral Drive. I am therefore satisfied that the design of the development minimises impacts of this sort on the part of Toral Drive west of Lot 4.

8. I now turn to the issue of traffic. I feel bound to confess that this issue has concerned me, but mainly out of sympathy for Mr Dulihanty’s position. Firstly, the issue of traffic must be examined against the general background of the planning scheme and the rather peculiar circumstances of Lot 29 in relation to access. The designation of Lot 29 as urban in the Strategic Plan, its position in the Stringybark Road west precinct and the general provisions concerning development in that precinct, mean that it must have been reasonably contemplated that Lot 29 would be significantly developed. Because of its location close to the public transport services available in Stringybark Road and the Sippy Downs Township it must have been within reasonable contemplation that access would be required. It cannot have been contemplated that access onto the Sunshine Motorway would be permitted and that is borne out by the concurrence agency condition imposed by the first co- respondent. The physical constraints at the Stringybark Road frontage of Lot 29 must have raised a reasonable contemplation that appropriate access for the residential development of Lot 29 could not be practically or desirably obtained directly onto Stringybark Road. It must therefore have been within reasonable contemplation that access to any residential development on Lot 29 in whatever form would have to be obtained via Toral Drive. I do not accept Mr Lyons’ submission that the development should be approved even if the access were to have been proposed as far west as Lot 8. However, there is no need to resort to such a proposition in this case. The access is proposed over Lot 4 and it is on that basis that I consider the traffic issues. As I have already said whilst I accept that some residents and visitors to the proposed development might miss the entrance and thereafter drive further to the west along Toral Drive in my view such instances would be rare and the effect on traffic west of the entrance minimal. However, between the intersection of Toral Drive and the proposed entrance to the development there is no doubt that the development will generate substantial traffic increases. On the figures it is likely that traffic movements along that part of Toral Drive would be approximately doubled.

9. I am satisfied on the evidence that Toral Drive is constructed to sufficient standard to carry the traffic with reasonable safety. I am satisfied that the additional traffic generated by the proposed development is not so great as to cause safety or congestion problems at the intersection of Toral Drive and Stringybark Road, along the length of Toral Drive to the entrance to the proposed development, or at the entrance to the proposed development. I am satisfied that the additional traffic will not unduly interfere with the amenity of allotments in Toral Drive to the east of the development entrance by reason of head lights at night. I accept that the proposed development will effectively turn that part of Toral Drive between the eastern end and the development entrance from a “local access street” to a “minor collector street” in terms of the council’s road hierarchy. I accept that the reason for such classification is the protection of lower order residential streets including cul-de- sacs in keeping houses in them free from the impacts of passing traffic. However, the question is in this case, what will be the consequential impacts of passing traffic? There will be no consequential impacts of any significance west of Lot 4. The church and childcare centre themselves already generate substantial daytime traffic and are not generally operated at night. I am satisfied that the traffic generated by the development will have minimal effect on them. For reasons I have already canvassed in my view it is not necessary to take into account any effect the traffic might have on the two allotments on the northern side of Toral Drive. That brings me to Mr Dulihanty. There can be no doubt that his property will experience a substantial increase in passing traffic. However, that must be looked at in light of the fact that he is already affected by all existing traffic movements created by allotments to the west of his in Toral Drive and he is already affected to some extent by traffic associated with the childcare centre. Nevertheless I do not think it can be said the additional traffic generated will have minimal impact on his property.

10. However it is only one allotment. The Planning Scheme does not require the design of the development to minimise impacts on every single allotment in the surrounding rural residential areas. In my view the issue of whether or not the design minimises impacts must be looked at in relation to a somewhat wider area than just a single allotment. Looked at in that light, the overall impact is substantially less. Nevertheless I am not satisfied in that respect that the proposed development is designed to minimise impacts on the surrounding rural residential areas. However it is difficult to conceive a way in which the proposed development could minimise traffic impact on Mr Dulihanty’s land unless access could be obtained over Mr Dulihanty’s land. To some extent the adverse traffic impact on Mr Dulihanty’s land is reduced by putting the access road on the western side of Lot 4 and moving the existing dwelling to the new smaller lot to be created beside Mr Dulihanty. At least to that extent Mr Dulihanty will not have the additional traffic interfering with his amenity by reason of braking and turning into the entrance to the proposed development. Mr. Dulihanty also has the coincidental benefit that his residence is set back somewhat from Toral Drive. Nevertheless on balance I am not satisfied that the design of the development minimises impacts on the surrounding rural residential areas. I am however satisfied that taken overall the conflict is minor.

11. In the evidence an issue was raised about the ability of the proposed development to be insulated from the traffic noise generated by the Sunshine Coast Motorway. I am satisfied that the impact of noise from traffic on the motorway affecting the amenity of the proposed development can be effectively and appropriately ameliorated. I am satisfied that if that is done by means of a combination of an appropriately constructed mound and acoustic barrier, together with appropriate landscaping. The 15 metre buffer proposed inside the boundary of the proposed development along the motorway frontage will also contribute to lessening the impact of traffic noise. I do not accept that it would necessary to build an acoustic fence of up to 5 metres height located along the whole of the motorway boundary. I am satisfied that with a combination of design features, any potential impact of traffic noise can be satisfactorily ameliorated. I am also satisfied with the use of landscaping, such sections of acoustic fence which might be required can be effectively screened. I am satisfied on the evidence of Mr Mack and Mr Welchman that there are no unacceptable impacts on air circulation which might arise from the screening from the motorway or arising out of the design layout of the proposed townhouses.

12. In light of the fact that I consider the conflict with the planning Scheme to be minor, in my view there are more than sufficient planning grounds to justify approving the development in spite of that conflict. Firstly, I am satisfied on the evidence of Mr Owen that there is a need for the provision of this type of housing. It is not to the point that the proposed development might only satisfy such need to a small extent. I am sure that the co-respondents and other residents of Toral Drive who are against the proposed development would not want the number of townhouses increased. However, the proposed development of 120 townhouses is an efficient and productive use of the subject land towards meeting the need for additional housing. The other planning reason in my view, is that the scheme itself not only acknowledges and anticipates the need for such housing arising out of sustained population growth, it encourages the meeting of that need in the area. Further, the subject land is particularly appropriate for the proposed development situated as it is close to the public transport services and the Sippy Downs Township.

13. I am satisfied that the appeal should be upheld and the proposed development approved. I will give the parties the opportunity to agree upon reasonable and relevant conditions.