Noel Hodges Consulting Services v Council of the City of Gold Coast
[2002] QPEC 56
•12 February 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Noel Hodges Consulting Services & Anor v Council of the City of Gold Coast [2002] QPEC 056 PARTIES: NOEL HODGES CONSULTING SERVICES
Appellant
FISHMONT PTY LTD
Second Appellant
COUNCIL OF THE CITY OF GOLD COAST
Respondent
FILE NO: 656 / 1999 DIVISION: Planning & Environment Court PROCEEDING: Application ORIGINATING COURT: Planning & Environment Court, Southport
DELIVERED ON: 12 February 2002 DELIVERED AT: Southport HEARING DATE: 5 February 2002 JUDGE: Newton DCJ ORDER: Application dismissed CATCHWORDS: Local Government – town planning – statutes – interpretation – Integrated Planning Act 1997 – section 4.1.52(2)(b) – whether changes proposed to an impact assessable material change of use application are minor – schedule 10 – whether proposed development would be likely to cause a person to make a properly made submission objecting to the proposal if the circumstances allowed
Building Control and Town Planning – material change of use – Council approval – where existing bldg is to be demolished and a new building erected
COUNSEL: Mr R W Blank (solicitor) – appellants
Mr R Litster – respondentSOLICITORS: Robert W Blank & Associates – appellants
Minter Ellison Gold Coast – respondent
IN THE PLANNING & ENVIRONMENT COURT OF QUEENSLAND
SOUTHPORT No: 656 of 1999
NOEL HODGES CONSULTING SERVICES
Appellant
FISHMONT PTY LTD
Second Appellant
COUNCIL OF THE CITY OF GOLD COAST
Respondent
REASONS FOR JUDGMENT – NEWTON, DCJ
(Delivered the 12th day of February 2002)
This application requires a determination as to whether changes proposed to an impact assessable material change of use application made by the appellants are minor for the purposes of s 4.1.52(2)(b) of the Integrated Planning Act 1997 (“IPA”).
The appellants made an application on 2 December 1998 for a Material Change of Use (Impact Assessment) for hostel accommodation. This original proposal was modified in February 1999 following an information request, and the proposal was publicly advertised during March-April 1999.
Three submissions were received objecting to the proposal, on grounds relating to privacy on adjoining land, proposed standard of residential accommodation and unfair competition.
Further modified plans were submitted to the respondent Council in May 1999 which constituted the proposal that the respondent considered in deciding the application which was refused on 18 June 1999 for the following reasons:
¨The development does not provide sufficient car parking spaces;
¨The proposed density is in excess of that permitted by the Planning Scheme;
¨The proposal would have an adverse impact on the amenity of the area; and
¨The proposed extension does not display sufficient architectural merit to warrant relaxation of the Planning Scheme provisions in relation to the length of wall.
A further modified proposal was submitted to the respondent on 28 February 2001 which was refused on 8 May 2001.
By order of this Court dated 19 November 2001, the appellants were required to advise of the proposal upon which they intended to rely at the hearing of this appeal. The appellants submitted a “Notified Proposal” on 7 December 2001. It is this “Notified Proposal” which falls to be considered in this application. The plans that form the basis of the “Notified Proposal” have been prepared by Deborah Carlile and Paul Mjatelski Pty Ltd Architects and Landscape Architects, and comprise drawing numbers 418 SK1F, 418 SK2C, 418 SK3A and 418 SK4, dated October 2000.
The subject site is situated at 60 Queen Street, Southport and is described as Lot 1 RP43562. The site has an area of 714m2, with frontage to Queen Street of approximately 17.5 metres. The existing building on the land is used for residential purposes in the form of flatettes. The site is included in the Residential Multi-Unit Zone. Queen Street carries large volumes of traffic within the Southport locality. Adjacent to the east and west of the site are shops, one being a corner store and the other being a gift and pot plant shop. A mixture of residential development and some vacant land exists in the locality.
The proposal considered by the respondent, which was refused on 18 June 1999, comprised the following features:
¨22 hostel rooms (including two disabled rooms) plus 1 single-bedroom manager’s unit;
¨communal kitchens and recreation areas;
¨storage area;
¨6 car parking spaces; and
¨retention and extension of the existing building, including retention of the front façade and two-storey height of the front façade. At its highest point, the development is 11 metres at the rear elevation and is two storeys above the carports.
The details of the proposed amendments contained within the “Notified Proposal” are as follows:
¨The existing building is to be demolished and a new building erected;
¨The height of the new building is to be three storeys at the front;
¨The number of bedrooms is to be increased to 29 comprising 13 double bedrooms to be divided by a solid wall, 1 disabled person’s room and a two-bedroom manager’s unit; and
¨The number of car parking spaces is to be increased to 11 which include 3 spaces in tandem and a disabled space at the front of the building.
Pursuant to s 4.1.52(2)(b) of IPA, the Court, in the instance of an appeal by way of hearing anew, “must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”. The term “minor change” is defined in schedule 10 of IPA as:
“…a change to the approval that would not, if the application for the approval were remade including the change –
(a)require referral to additional concurrence agencies; or
(b)cause development previously requiring only code assessment to require impact assessment; or
(c)for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.”
The parties have agreed that of particular relevance to this appeal is subsection (c). It is appropriate to apply the definition of the term “minor change” in schedule 10 of IPA for the purposes of s 4.1.52(2)(b) (Carillon Developments Ltd v Maroochy Shire Council (2000) QPELR 216 at paragraph 9).
The appropriate test is whether the changes, individually or collectively, would be likely to cause a person to make a properly made submission objecting to the proposal (including those changes or any one of them), if the circumstances allowed.
The existing building is used for residential purposes in the form of separately occupied flats. Its external appearance is that of a large residential dwelling and its architecture has been described by Professor Brannock as being “of an unusual appearance, with its roof form particularly exhibiting Queensland vernacular character”. The proposal considered and rejected by the respondent involved the retention of the existing building, with primarily internal, as opposed to external modifications at the front of the building, and extension of the existing building to the rear. From the Queen Street frontage, there would not be a significant change to the façade of the existing building. The “Notified Proposal” involves demolition of the existing building, and construction of a completely new building in its place that is substantially different in architectural appearance to that which exists. Professor Brannock expressed a view that, having regard to the appearance of the existing built form on the site, the site’s identification in a Council document as being part of a recognised streetscape, and the built form of the building now proposed, the change is significant. Professor Brannock considered that the character aspects of the existing building are such that it is likely that a member of the community who did not make a submission against the application may have cause to make a submission against the proposal as a result of the demolition of the existing building, and/or the alterations to the built form on the land (e.g. appearance, window treatments, height).
The Council document referred to in the evidence of Professor Brannock was commissioned by the respondent when Allom Lovell Architects were retained to prepare the Southport Urban Heritage and Character Strategy. That document was adopted “in principle” by the respondent on 9 April 1998 as a Planning Study to inform preparation of a new Development Control Plan for Southport. That study includes the site in the “Core Area” precinct and particularly identifies 60 Queen Street as part of a streetscape with special value. The recommended controls in the Heritage Strategy for the Core Area precinct include that:
“No demolition controls or guidelines should be enforced, however consideration should be given to the retention of the streetscapes and places of special value. This may involve some fine grain planning or staging to encourage appropriate densities within the precinct.” (p53)
The authors of the Heritage and Character Strategy concluded that streetscapes of particular value within the study area are rare (p39).
Although the Allom Lovell report should not be ignored in assessing the value of the streetscape involving the subject land it should be noted that the report has no statutory relevance, it being a planning study for the new town planning scheme, yet to be released for public comment.
Mr Grummitt expressed a contrary view to that of Professor Brannock with respect to the assessment of the streetscape of the area. Mr Grummitt does not consider that the existing building is important in relation to the streetscape, but that the two retail establishments are the essential elements. Mr Grummitt notes that the subject building is sited with only a small frontage set-back, of around 3m, and provides no vegetation of significance in the front set-back area, apart from a frangipani tree in the north-western corner of the site abutting the corner store. In Mr Grummitt’s view the existing building does not provide a positive contribution to the existing streetscape of the area. In any event, Mr Grummitt points out that the high pitch to the roof of the existing building, evident only from the northern side of Queen Street, is replicated in the Notified Proposal to reflect the character element of the existing building.
Although it is apparent that views may legitimately differ in assessing the streetscape value of the subject building, it should be accepted, I think, that some members of the community are interested in preserving what is left of “old Southport” and particularly those buildings that exhibit what Professor Brannock has termed the “Queensland vernacular character”. Viewing the matter broadly and objectively, I think the notified proposal which involves demolition of the existing building, which was to be retained at the time that the matter was considered by the respondent, would be likely to cause a person to make a properly made submission objecting to the proposal if the circumstances allowed.
With respect to the building height, the proposal considered and refused by the respondent maintained a two-storey building height (about 8.5m in height) to the site’s Queen Street frontage with the rear elevation being higher (up to 11m) due to the topography, and the development of two storeys in the extended building sited above a carport area (making the building three storeys at the rear). The Notified Proposal shows a three-storey high building fronting Queen Street (at a height of about 10.2m), with part of the side elevation at 11.5m to the roof top. Professor Brannock points out that at 11.5m at its highest point, even though for a small part of the built form, this constitutes almost a four-storey effective height, which exceeds the maximum permitted three-storey height limit. Again, conflicting views have been expressed by the experts as to whether the difference in height in the development of an additional one storey to the street frontage and the increased height in parts of the remainder of the development are sufficient to be likely to cause a person to make a submission against the proposal if given the opportunity to do so. Mr Blank, who appeared on behalf of the appellants, informed the Court that this aspect of the Notified Proposal was not seen by his clients as crucial and that the height could, if the Court considered desirable, be reduced. Because of the conclusion I have reached in relation to the proposed demolition of the building, it is not necessary to express a concluded view with respect to the building height. However, I would not expect that this particular aspect of the Notified Proposal would be likely to cause a person to object.
Similarly, in relation to the increase in the number of bedrooms contained within the Notified Proposal, I do not consider that this aspect would be likely to provoke objection, notwithstanding the increase in density on the site. Any resultant increases in impacts upon traffic and resident noise levels would not be major.
Both Professor Brannock and Mr Grummitt are in agreement that the increase in car parking spaces is not considered to be of significance, and I agree with that conclusion.
In my view the Notified Proposal to demolish the existing building cannot properly be regarded as a minor change. I accept that the building in its present form exhibits unique characteristics that some members of the community may consider of value and want to see retained on the site. I am satisfied that this change would be likely to cause a person to make a properly made submission objection to the proposal to demolish the building, if the circumstances allowed.
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