Our Stuff Pty Ltd v Douglas Shire Council

[2006] QPEC 127

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Our Stuff Pty Ltd v Douglas Shire Council [2006] QPEC 127
PARTIES:	OUR STUFF PTY LTD (Appellant) v DOUGLAS SHIRE COUNCIL (Respondent)
FILE NO/S:	302 of 2005
DIVISION:
PROCEEDING:	Appeal
ORIGINATING  COURT:	Planning and Environment Court, Cairns
DELIVERED ON:	30 October 2006
DELIVERED AT:	Cairns
HEARING DATE:	9 June 2006
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr D Morzone for the appellant Mr W Cochrane for the respondent
SOLICITORS:	Miller Bou-Samra Solicitors for the appellant Williams Graham & Carman Solicitors for the respondent

1. The land the subject of this appeal consists of two allotments described as Lots 14 and 15 on Plan C22514 Parish of Salisbury County of Solander. They are located at Nos. 5 and 7 Cowrie Street, Port Douglas. The allotments are located on the southern side of Cowrie Street in close proximity to Four Mile Beach. The rear boundaries back to the Nautilus Street road reserve which is not constructed and remains a small watercourse. Lot 15 is closer to the beach and has an area of 662 square metres. Lot 14 has an area of 665 square metres. Each existing lot has a frontage to Cowrie Street of 22 metres. Each existing lot is presently developed with a single detached dwelling.

2. The appellant applied to the respondent for a development approval to reconfigure the two allotments so as to create three allotments of equal size having an area of just over 445 square metres each and a street frontage of approximately 15 metres each. This is an appeal against the respondent’s refusal of the application. Whilst the appellant’s ultimate proposal is for the construction of a single detached dwelling on each of the three proposed allotments, it is the proposed reconfiguration of the two allotments which is the subject matter of this appeal.

3. The respondent’s Planning Scheme in force at all material times is a Transitional Planning Scheme pursuant to the provisions of the Integrated Planning Act 1997 as amended. Pursuant to s 6.1.29(3) of IPA, various matters are set out as being applicable for assessing an application made when a Transitional Planning Scheme applies. Further, so far as is relevant paragraph 6.1.29(3)(h) provides as follows:-

   “If the application is for development that before the commencement of this section would have required an application to be made under any of the following sections of the repealed Act –

   (i)         Section 5.1(1) – the matters stated in section 5.1(3)

   Further, subjection 6.1.30(3) relevantly provides as follows:-

   “Instead, the assessment manager must, if the application is for development that before the commencement of this section would have required an application to be made under any of the following sections of the repealed Act –

(c) Section 5.1(1) (whether or not s 5.10(1) applies) – decide the application under s 5.1(6) and (6A).”

This is an application which would have been required to have been made pursuant to s 5.1 of the Local government (Planning & Environment) Act 1990 as amended (the repealed Act). Section 5.1(6A) of the repealed Act provides as follows:-

“The local government must refuse to approve the application if –

(a)	The application conflicts with any relevant strategic plan or development control plan;
(b)	There are not sufficient planning grounds to justify approving the application despite the conflict.”

1. The subject land is in an area covered by Development Control Plan 2 – Port Douglas. Both parcels of land are also included in the Residential B zone of the Transitional Planning Scheme.

2. In my view there are two express provisions of Development Control Plan 2 which are relevant to this appeal.

   Relationship to development requirements

   “3.1.3 2 area, in addition to the requirements specified in s 3.5. Reference should also be made to those parts to identify all of the requirements which are relevant in the DCP area.

   3.1.3.1 In general only those requirements which apply exclusively
   to development within the DCP – 2 area are included in this plan.
   Those development requirements which apply throughout the
   Planning Scheme area or to more than one DCP area are included in

   Tourist accommodation areas developed for tourist accommodation principally accommodation premises (including motels) or dwellings. Related and compatible uses such as some public recreation uses and restaurant/bars may also be permitted in appropriate locations. Residential development as such is not intended to be precluded from these areas. However the great majority of the area should remain available for the development of tourist accommodation.

   3.3.6
   3.3.6.1 Intent
   3.3.6.2 Implementation
   (a) Rezoning to Residential A or other zones which would preclude
   the predominant development intended will generally not be
   permitted.

   Most of the land within the tourist accommodation areas is included in the Residential B Zones. Although accommodation uses generally require consent this is primarily because of the statutory requirements with respect to head works charges. It is intended that Council will generally approve, subject to appropriate conditions, consent application for accommodation premises and multiple dwellings (tourist) which are in accordance with the provisions of this DCP and Parts 8.0 to 11.0. The only exceptions to this will be where there have been objections on valid grounds which may warrant refusal of the application or appropriate modification of the development proposal.”

3. In my view, on the proper construction of s 3.1.3.1 the development requirements contained in Parts 8.0 to 11.0 of the Planning Scheme, to the extent that they are relevant, are incorporated into DCP – 2.

4. Part 11.0 of the Transitional Planning Scheme sets out development requirements – subdivision of land. Section 11.2 sets out tables prescribing minimum allotment area, minimum allotment dimensions, and maximum allotment density. Those requirements relevant to land within the Residential B Zone under the Transitional Planning Scheme require a minimum allotment size of 1,000 square metres to accommodation a square with minimum sides of 22 metres. Sections 11.2.2 and 11.2.3 make provisions for relaxation of minimum allotment sizes in certain zones but none apply to this particular case. In my view, therefore, the proposed reconfiguration of the subject land is in conflict with DCP – 2 and therefore must be refused pursuant to subsection 5.1(6A) of the repealed Act unless sufficient planning grounds to justify approving the application despite the conflict can be shown. Mr Peter Robinson, the town planning consultant, who gave evidence for the appellant has identified a variety of relevant town planning grounds which the appellant submits are sufficient to justify approving the application notwithstanding the conflict. I take these verbatim from the written submissions of Mr Morzone, Counsel for the appellant, because I consider them to be a fair and accurate summary of Mr Robinson’s evidence. They are as follows:-

   “1. The general pattern of existing development in the locality is comprised of single family residential dwellings and there is a marked lack of tourist accommodation in the locality.

   2. The approval of this application would not impact on the intended

   predominant type of development – tourist accommodation.

   3. The development complies with good town planning principles
   because –

(a)	The proposed lots are suitable for their intended purpose.
(b)	The environment and scenic amenity of the area are protected.
(c)	The proposal achieves good urban design outcomes.
(d)	The proposal is an efficient use of land.
(e)	The proposal fosters a safe, convenient and attractive neighbourhood and a functional residential area.

(f) The proposed result is an efficient provision of infrastructure. 4. The development complies with urban efficiency ideals because –

(a)	Council has approved the use of the land for two multiple dwellings in addition to the existing dwelling house. Under the provisions of the Transitional Scheme and the existing development approval the two allotments can be used for the purposes of three dwelling units being a house on Lot 14 and a duplex on Lot 15.
(b)	The proposal seeks to change the style of land use from a dwelling plus a duplex to three dwellings. It does not impact on sustainability.
(c)	The land has been used for residential purposes for more than 20 years.
(d)	The proposed uses will not alter infrastructure efficiency.
(e)	No mechanism can be identified by which subdivision of the land into three allotments adversely impacts on urban efficiency.
(f)	All necessary urban services and utilities are available to the land with sufficient capacity to meet the needs of three dwelling houses. Services include electricity, sewerage and water supply reticulation, telecommunications, postal service and refuse collection.
(g)	The subdivision does not create any additional traffic on Cowrie Street given that one of the allotments is already approved for a duplex – the number of dwelling units served will not increase.
(h)	The proposal will not lead to an increased risk to community of individual health and safety.

(i)         The proposed subdivision does not create incompatible land uses.

(j) The physical characteristics and locality of the land are obviously suitable for residential purposes.

(5) It is undisputed that the lots are suitable and desirable for residential
purposes.”

1. I accept Mr Robinson’s evidence with regard to the above. However, the question is whether or not those matters are sufficient to justify approving the proposed subdivision in spite of the conflict with the Development Control Plan. In my view the determination of appropriate allotment sizes for a particular locality or zone is one of many important planning strategies which a local authority may adopt in order to regulate the intensity and form of development in a particular area or zone. It must be remembered that this Court is not the planning authority. The Court of Appeal has, on a number of occasions, said that it is the Council which is the planning authority, not the Court, and the Council’s planning intent is to be ascertained by reference to the various plans and provisions which go to make up the council’s planning scheme. (e.g. Grosser & Grosser v Council of the City of the Gold Coast 117 LGERA 153).

2. It is true that the Council has already approved allotment sizes in the general area of the subject land significantly less than the 1,000 square metres minimum designated in s 11.0. However the evidence suggests that allotment sizes in the general area of the subject land are generally comparable to or greater than the areas of the two subject allotments as they presently stand. That is no justification in my view for approving an application for reconfiguration of allotments to produce three allotments side by side which will be approximately one third smaller again. Accepting Mr Robinson’s evidence as I do I am not persuaded that there any practical planning reasons for refusing the current application. However, in my view, that is not sufficient. To approve the current application it is necessary to identify sufficient positive planning grounds for approving the application in spite of what I consider to be a significant conflict with the Development Control Plan. I am not satisfied that there are sufficient planning reasons to override the clear planning intent of the local authority in these present circumstances. In my view the appeal must be dismissed.