Palyaris v Gold Coast City Council
[2003] QPEC 56
•1 August 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Palyaris v Gold Coast City Council [2003] QPEC 056
PARTIES: STEVEN PALYARIS
Appellant
and
GOLD COAST CITY COUNCIL
Respondent
FILE NO/S: Appeal No 723 of 2002
DIVISION: Planning & Environment Court, Southport
PROCEEDING: Appeal
ORIGINATING COURT:
Southport
DELIVERED ON:
1 August 2003 DELIVERED AT: Southport
HEARING DATE: 9, 10 April 2003
JUDGE: Alan Wilson SC DCJ
ORDER: APPEAL DISMISSED
CATCHWORDS: PLANNING AND ENVIRONMENT – CONFLICT WITH PLANNING SCHEME – application for small commercial enterprise on residential land – previously permitted with conditions requiring operator to reside on premises – whether application conflicts with Planning Scheme – whether sufficient planning grounds to justify approval, despite conflict – whether Planning Scheme ‘overtaken’ by surrounding development
Integrated Planning Act 1997
Local Government (Planning & Environment) Act 1990Cases considered:
Grosser v Council of the City of Gold Coast (2002) 117 LGERA 154; QPELR 207
Grosserv Gold Coast City Council (2001) QPELR 56
Kentbrock Pty Ltd v Gold Coast City Council, unreported
Weightman v Gold Coast City Council (2002) QCA 234
Stenders Morris & Partners v Cairns City Council (1989) QPLR 15
COUNSEL: Mr J C Faulkner for the appellant
Mr R S Litster for the respondentSOLICITORS: H W Litigation for the appellant
McDonald Balanda & Associates for the respondent
This is an applicant’s appeal against the decision of the Gold Coast City Council to refuse a development application which would have permitted the use of residential premises at 14 Ashmore Road, Bundall as a photographic studio. The premises have in fact been used for that purpose for some years, but under conditions which include a primary requirement that any business conducted there be of a “home occupation” type. They lie on the southern side of a wide and busy arterial road where a large number of other houses are also used, partly or wholly, for business or professional purposes. The case involves premises close to those which were the subject of the Court of Appeal’s decision in Grosser v Council of the City of Gold Coast (2002) 117 LGERA 154 and the recent judgment of McLauchlan QC DCJ in Kentbrock Pty Ltd v Gold Coast City Council, unreported (Planning & Environment Court of Queensland, Southport, 29 May 2003, 722/2002). Both concerned premises to the west: Kentbrock at no. 28 Ashmore Road, and Grosser at no. 44.
As in Grosser, the owner applied in 1997 for consent to use the premises partly as a residence and partly as a business, and on 28 February 1997 was granted a town planning consent for a “Home Occupation (Photographic Studio)” to be conducted. At some later time, however, the proprietors of the photographic business ceased living at the premises and on 12 February 2002 the Council issued a “Show Cause” Notice for an alleged breach of the conditions of the approval. The appellant countered with the development application, refusal of which has led to these proceedings.
This appeal has, at its core, issues which troubled the primary Judge in Grosser: namely, the plain fact that this section of Ashmore Road has on its south side long ceased to be used primarily for residential purposes and has, over time, taken on a predominantly commercial aspect. Again, as in Grosser, the Council contended the commercial use proposed by the appellant was nevertheless in clear conflict with the planning scheme which presently applies, and that there were no planning grounds of sufficient substance to overcome that conflict. For the appellant it was said the plan has simply been overtaken by events, and that indeed, it is more probable than not Council will itself acknowledge that by changing its planning scheme, in the foreseeable future, in a way which would accommodate the appellant’s proposal.
The Property
The land is Lot 7 on RP 103567 in the Parish of Nerang, and contains 506m2. It is number 14 Ashmore Road, Bundall, has a frontage of 15.49m to that road, and is flat and rectangular in shape. It is situated about six allotments to the west of the large and busy intersection at Ashmore and Bundall Roads (and Salerno Street). The property retains the general appearance of its original use as a low-set dwelling house but advertising signs, and clear provision for car parking at the frontage on Ashmore Road indicate its commercial use as a photographic studio. It lies within the “Detached Housing” preferred dominant land use (PDLU) under the Strategic Plan which forms part of the 1994 City of Gold Coast Planning Scheme (The 1994 Planning Scheme).
Mr Erotokritus Palyaris and his wife purchased the property in about 1993 and, I accept, have had difficulty attracting satisfactory tenants. They blame the lack of residential amenity on Ashmore Road. In 1997 new tenants approached them with a view to leasing the property for use as both a dwelling and a photographic studio, and to that end Council’s approval was obtained for usage as a “Home Occupation (Photographic Studio)”, subject to certain conditions[1]. Those tenants lived and worked in the property but moved out on an unspecified date prior to February 2002. The current occupant, Ms Forbes, has conducted a photographic studio at the premises since June 2002. She does not live there. She said the business is moderately successful and the premises and the area beneficial to its purposes[2].
[1] Mr Clegg’s report, Exhibit 8, Appendix F
[2] T 48, ll 10-18
Mr Palyaris also owns the properties immediately to the east, and west. The latter, no. 16, was also the site of a ‘home occupancy’ business but the tenant left in about June 2002 and he has been unable to find another. The property to the east is also vacant. His evidence that it takes the respondent at least 3-4 months to deal with an application for permission for Home Occupation on behalf of any new tenant was not contested; and I am also persuaded that, as he said, persons interested in home occupation are discouraged by this delay.
Ashmore Road
Ashmore Road has four lanes and is extremely busy. A 12-hour intersection count (Ashmore/Bundall Roads) on 13 June 2002 showed 18,397 vehicles travelling east, and 13,792 going west. The northern side of the road is entirely given over to significant commercial activity. It is dominated by a built form typified by commercial-style buildings and public activity – a hire company at the corner of Bundall Road, then a car sales yard and, directly opposite the appellant’s premises, a 24-hour car wash which is a night-time congregation point for taxis, limousines and car enthusiasts. Music is broadcast over the those premises and I accept they can be quite noisy at night[3] and this degrades the residential amenity of the area.
[3] Ms Forbes, T 54, ll 1-12
Most of the houses on the south side of Ashmore Road, travelling west from Bundall Road are now, like the appellant’s premises, used for commercial purposes. Of the 61 lots between Bundall Road and Village High Road included in the Residential-Dwelling House Zone 33 have been approved for use other than as purely residential dwellings and nine of those involve uses other than home occupation[4]. Those nine are medical centres which had been established before the commencement of the respondent’s 1994 Planning Scheme.
[4] Mr Clegg’s report, Exhibit 8, paras 2.2.7-2.2.9 and Appendix D
Current Use
On 12 February 2002 the respondent issued a Show Cause Notice to the appellant asserting that, in breach of the conditions of the original approval for home occupation, there was no person residing in the premises and it had been converted to use solely as a photographic studio. The appellant does not deny that breach had occurred during the McShane’s tenancy and continues during Ms Forbes’, but by way of response an application was made on 20 March 2002 for a material change of use to permit the dwelling to be used solely as a photographic studio, without the added requirement that it also be used as a dwelling. This application, for permission to use the premises as “Commercial Premises (Photographic Studio)” required public notification but no submissions either in support or opposition were received by Council.
Nevertheless, on 19 July 2002 Council notified the appellant the application was refused, for these reasons:
(a)The application fails to comply with the intent and objectives of Council’s Strategic Plan.
(b)The application has failed to demonstrate any “planning merit” which warrants support of the proposal irrespective of the conflict of the development with the provisions of the Strategic Plan.
(c)The application fails to comply with the intent of the Residential Dwelling House Zone and relevant provisions of the City of Gold Coast Planning Scheme 1994.
(d)The proposed car parking arrangements are insufficient in terms of quantity for the proposed development, fail to accord with the Gold Coast City Council Local Planning Policy No. 1 … and conflict with the requirements of section 4.21.2 of the … Planning Scheme 1994.
(e)The application is considered likely to generate adverse impacts upon adjoining residents and the desired residential amenity of the surrounding area.
Issues
The major question in the appeal is whether there is a conflict between the use proposed by the applicant, and relevant provisions in the Detached Housing PDLU under the Strategic Plan, within the 1994 Planning Scheme; and, if so, whether there are sufficient planning grounds to justify approval of the application, notwithstanding that conflict. Associated issues include whether there is conflict with the provisions of the 1994 Planning Scheme relevant to land included in the Residential-Dwelling House Zone, or with other provisions included within the Gold Coast draft Planning Scheme, relevant to use of the land for something other than residential purposes.
At the hearing of this appeal the Council did not persevere with the contention (ground (e) in its reasons for refusing the application for material change of use) that the proposed use was the source of any identifiable adverse impact on the amenity of adjacent dwellings.
Ashmore Road Cases
Kentbrock Pty Ltd v Gold Coast City Council[5], involving no. 28 Ashmore Road concerned a very similar property for which town planning permission had been given in September 1997 for “Home Occupation (Architect’s Office)”. The director of the appellant company, an architect, initially lived at the property in compliance with the terms of that permit but later ceased to reside there although he continued to work on the premises with a number of employees. Like the appellant here the owner was asked to show cause and, in response, sought a material change of use for a design studio or, more properly, “Commercial Premises (Architect’s Office/Studio)”. That application was rejected by Council on (as here) 19 July 2002, and for identical reasons. McLauchlan QC DCJ refused an appeal and his findings and conclusions may be summarised:
[5] supra
(a) There was a “sharp and clear conflict” between the proposal, and the provisions of the Strategic Plan;
(b) Planning grounds which were relevant to the conflict were insufficient to justify approval of the application (notwithstanding that Council had departed from the planning intent under the 1994 Scheme on two recent occasions – 6 Ashmore Road, and 194 Ashmore Road);
(c) The appellant was not assisted by a new, proposed (draft) Planning Scheme or another document (discussed below) called the “GHD Desktop Study”, both of which contemplated changes to the designation of land along Ashmore Road.
In Grosser v Council of the City of Gold Coast[6], which concerned the “Ikebana Centre” at 44 Ashmore Road, similar issues also arose. The Ikebana Centre was a more elaborate structure and enterprise than the relatively basic dwelling involved both here and in Kentbrock Pty Ltd, but was subject to the same kind of consent permit (for “Home Occupation (Flower School)”) and, again, although the building was occupied for a time as a dwelling house it ultimately came to be used solely for a variety of social and educational purposes, and no-one lived there. A Show Cause Notice issued, the owners applied for a material change of use, and that was refused for reasons similar to those given by Council in this instance.
[6] (2002) 117 LGERA 154; QPELR 207
In allowing an appeal against the Council’s refusal to permit the Centre’s use as commercial premises, with no condition for actual domestic occupancy, the primary Judge concluded that the presence of the numerous nearby medical centres, other home occupation and unlawful non-residential uses, and intensive commercial and retail development on the northern side of Ashmore Road meant the Strategic Plan had been overtaken by events to the point where this area of Ashmore Road was dominated by semi-commercial aspects, and the provisions of the Residential-Dwelling House Zone were no longer appropriate.
In upholding an appeal from this decision the Court of Appeal[7] found the proposal remained, however, in clear conflict with the 1994 Planning Scheme and, notwithstanding the elements of the locale which lead the primary judge to these views, the court could not substitute its own planning strategies. White J (with whom Thomas and Williams JJA agreed) was readily persuaded that no evidence had been adduced which could constitute sufficient planning grounds to approve the application, despite the conflict[8].
[7] Thomas and Williams JJA, White J
[8] 117 LGERA, at 166
Statutory Assessment Regime
The 1994 scheme is a Planning Scheme under the Local Government (Planning & Environment) Act 1990 (PEA). It continues to apply in the respondent’s local government area because it was in force immediately prior to the commencement of the Integrated Planning Act 1997 (IPA): IPA, ss 6.1.2(1), 6.1.3, 6.1.4, and 6.1.5. At the date of hearing of this matter an IPA Planning Scheme had not yet replaced the 1994 scheme although the Gold Coast Draft Planning Scheme (Draft Planning Scheme) – “Our Living City” – was expected to become law in June, 2003.
The only qualification to the continuing efficacy of the 1994 scheme arises under IPA s 6.1.2 which provides in 6.1.2(3) that a prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. At the same time because the proposed use is one which would have required an application for re-zoning under the PEA, with public notification (PEA s 4.3(4)), it must be addressed as a development application requiring impact assessment: IPA, s 6.1.28(2), although IPA s 3.5.5 (which deals with impact assessment) does not itself apply for the assessment of the application (IPA s 6.1.29(2)). Rather, it is necessary to take into account the 1994 Planning Scheme, and the matters stated in PEA s 4.4(3): IPA, ss 6.1.29(3)(b) and (h)(i); and, to decide the application under PEA ss 4.4(5) and (5A): IPA, s 6.1.30(3)(a).
Relevantly, and of some significance here, under PEA s 4.4(5A) the application must[9] be refused if it conflicts with the Strategic Plan that forms part of the 1994 Planning Scheme, and there are not sufficient planning grounds to justify approval despite that conflict.
[9] Weightman v Gold Coast City Council (2002) QCA 234 at paras [3], [15] and [35]
Under IPA ss 4.1.52(1) and (2) this appeal is by way of hearing anew; and, it must be decided in a manner based on the laws and policies applying when the application was made, although the Court may give weight to any new laws and policies it considers appropriate.
The process to be followed under PEA s 4.4(5A) was described by Atkinson J in Weightman[10] in these terms:
[10] supra, ar para [36]
(a) First, the Court examines the nature and extent of the conflict.
(b) Second, it determines whether there are any planning grounds relevant to the part of the application which is in conflict with the Planning Scheme and if the conflict can be justified on those planning grounds.
(c) Finally, it determines whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
1994 Planning Scheme
The 1994 Planning Scheme announces that its purpose is to define policies guiding the future growth and development of the local government area[11], and the Strategic Plan which forms part of it announces that it contains statements comprising goals and objectives for the development of the city. The Introduction to the Planning Scheme notes:
[11] Exhibit 3, Introduction
The Planning Scheme provisions provide for the administration and implementation of the Planning Scheme. The Strategic Plan provides the context for the provisions in terms of broad planning objectives. The principal elements of the Planning Scheme provisions may be summarised as follows:
(a) definitions of the terms used;
(b) division of the City into zones as shown on the Zoning Map;
(c) a Statement of Intent for each zone;
(d) a Table of Development to control development in each zone;
(e) provisions for the development and subdivision of land;
(f) provisions for the administration of the Planning Scheme.
The definitions in Part 2 apply to the whole of this Planning Scheme, including the Strategic Plan, and wherever possible the terms used accord with common usage. The intent or purpose of the various planning controls is stated as part of the provisions …
The Strategic Plan[12] incorporates ‘preferred dominant land uses’ (PDLUs) which indicate the major types of development Council considers should predominate in specified areas marked on the Strategic Plan Map. At Part 1-8, policy in respect of these PDLUs on the Map is described in these terms:
The Strategic Plan, in particular the Strategic Plan Map, represents the principal determinants of the composition of the Planning Scheme Provisions and in particular, the land use zones and their application to the various parts of the City. As such, the Strategic Plan provides both the broad philosophy upon which the Planning Scheme is based and applications will only be given favourable consideration by the Council if they are consistent with the Council’s strategic planning policies for the subject area and, as such, do not conflict with, cut across, or make more difficult to implement the provisions of the Strategic Plan.
[12] Exhibit 3, Part 1
The planning statement relevant to the Detached Housing PDLU (within which, it is common ground, this parcel lies) provides:
The maintenance of residential amenity is a major priority with the Council in relation to detached housing areas. Residents of such areas have consistently expressed a view that residential development should be mainly restricted to detached housing. Accordingly the preferred dominant land use is detached housing on individual allotments. This form of development facilitates a wide range of domestic activities, including gardening, private recreation and the keeping of pets.
Other development may include townhouse development, integrated housing and aged persons’ accommodation, subject to such development being at a scale and density compatible with detached housing. A very limited range of non-residential development which is either ancillary to residential development or directly serves the convenience needs of the local neighbourhood may also be appropriate in some locations. Development in these areas will be required to accord with the provisions applicable to the Residential-Dwelling House Zone. …
The final two sentences pertain directly to the conflict in this case, as it was found to be by the Court of Appeal in Grosser.
Implementation of the objectives for the Detached Housing PDLU is to be affected in accordance with the intent for the Residential-Dwelling House Zone, which appears in s 4.3.1 of the 1994 Planning Scheme (Part 4-2). It provides that:
Permissible development is restricted to townhouse development, integrated housing and aged persons’ accommodation at densities compatible with low density dwelling house development, as well as non-residential development which may be compatible with and complementary to residential development.
And:
Within this zone a high priority will be given to maintaining the integrity of residential areas and accordingly permissible development will not be approved if such development can reasonably be located elsewhere. Permissible development should generally locate in situations which minimise impact on residential amenity and which do not introduce additional traffic onto minor residential roads including residential access culs-de-sac and minor collector roads. Any permissible development will only be approved if it can be shown that such development is complementary to and compatible with the surrounding area.
As McLauchlan QC DCJ pointed out in Kentbrock[13] the first objective in the Planning Scheme in relation to Detached Housing is:
[13] supra, at paras [25] and [26]
(a) to maintain the amenity and low density character of detached housing areas in line with the expectation of residents.
This is elaborated in the following words:
In order to maintain a high level of residential amenity and the Detached Housing character, the Council will only favour proposals for development which are complementary to and compatible with dwelling houses. The provisions of the Planning Scheme relating to site coverage, development density, building height, on-site open space, car parking and landscaping will set standards for all development which further ensure the maintenance of amenity and character. To its own programs the Council will progressively improve streetscapes and the safety of residential roads.
Under the Table of Development promulgated under s 4.3.2 of the 1994 Planning Scheme for the Residential-Dwelling House zone the only permitted development is for a dwelling house, and a park. Other developments are permitted subject to conditions, and still more are permissible but all others, including the appellant’s proposal, are classified as “prohibited”. Since IPA came into effect, a prohibited use is taken to be an expression of policy that the use is inconsistent with the intended design for which the prohibition is expressed: IPA, s 6.1.2(3).
These provisions compel the conclusion reached by White J in Grosser, and McLauchlan QC DCJ in Kentbrock Pty Ltd that a plain conflict with the planning provisions and, in particular, the Detached Housing PDLU in the Strategic Plan, exists and that it is, as the latter described it, “sharp and clear”[14]. That is not the end, however, of the applicant’s difficulties.
[14] Kentbrock Pty Ltd v Gold Coast City Council (supra) at para [28]
The provisions of the 1994 Planning Scheme dealing with home occupation (definition, s 2.2 and Part 12-3) impose constraints on the proportion of the dwelling house which may be used for the business, the number of clients who may visit, the hours of operation and the number of car parking spaces to be provided, and the evidence shows the appellant’s proposal is, presently, in conflict with them. In respect of the car parking provisions (Part 13-4, s 13.5) I was persuaded by the evidence of Mr Beard[15] that although four car parking spaces are provided they are inadequately dimensioned; and, in terms of parking space and manoeuvring dimensions, and because of the absence of provision for forward movements both to and from the site, they are significantly sub-standard and no reasonable justification appears which would warrant relaxation.
[15] Mr Beard’s report, Exhibit 9
The conflict here is not absolute or “across the board” but clearly occurs in respect of the use of the premises, the number of car parking spaces and, potentially, the number of client visits and while not excessive in the latter respects or, potentially, beyond remedy by means of the imposition of appropriate conditions if the primary conflict with the 1994 Planning Scheme did not so vividly arise, these matters simply add to the clarity of the conflict described by McLauchlan QC DCJ.
In partial response and, no doubt, in recognition of the problems these conflicts threw up the appellant sought to rely upon the provisions of the respondent’s Draft Planning Scheme, with the support of Mr Brewster, town planning consultant[16]. Under that draft this property is included within the Detached Dwelling Domain and within that domain a Table of Development appears listing uses considered appropriate and desirable for that Domain. Any use not listed is to be considered “undesirable or inappropriate”[17]. In Kentbrock Pty Ltd the judgment contains the planning intent, in the Draft Scheme, for this domain (at para [43]) and refers to the Table of Development. McLauchlan QC DCJ concluded[18] that the appellant “derives no assistance from these provisions” and I am, similarly, satisfied that there is no support for the application within the new proposals. That is a conclusion which Mr Brewster, also, ultimately conceded[19].
[16] Mr Brewster’s report, Exhibit 1
[17] Exhibit 6, Part 5, Chapter 1, s 2, p 2, clause 4.7
[18] At para [45]
[19] T 66, ll 1-4
Nor does the fact the respondent has departed from its planning intent under the 1994 Scheme on two recent occasions in Ashmore Road tell in the appellant’s favour, as he contended. The circumstances surrounding each are traversed in the judgment in Kentbrock Pty Ltd[20] and apply equally here. At the highest, the identification of instances of departure by a local government from the intent of its own Strategic Plan might be said to reflect upon the degree of conflict between a proposal and a Planning Scheme, but the fact departures have occurred will not usually serve to remove a conflict. At the highest, it might reduce the level of “sufficiency” of planning grounds necessary to overcome the conflict (which is the way in which McLauchlan QC DCJ approached these matters[21]).
[20] supra, at paras [36]-[39]
[21] Kentbrock Pty Ltd, supra, at para [3]-[39]
The GHD Desktop Study, also called in aid by the appellant, is a study touching development in the Ashmore Road area, but it is still at an embryonic stage. Its future and possible effects are quite conjectural, as Mr Brewster conceded. It has not been the subject of any public debate or contribution and would ordinarily, then, attract little weight[22]. Again, I respectfully adopt the comments and conclusions of McLauchlan QC DCJ who said it had “…not acquired any present actual or persuasive status as an expression of Council policy”[23].
[22] Stenders Morris & Partners v Cairns City Council (1989) QPLR 15, at 17F
[23] Kentbrock Pty Ltd, supra, at para [45]
I am satisfied there is a clear and unequivocal conflict between the proposal, and the intent for this land in the Detached Housing PDLU, and the Strategic Plan which forms part of the 1994 Planning Scheme. I am also satisfied that the form in which the intent for land in the Residential-Dwelling House zone and the Table for Development for that zone are expressed in the Scheme, read in the context of IPA s 6.1.2(3), have the clear consequence that the appellant’s proposal is plainly inconsistent with Council’s intentions for land, in that zone. There is no conflict discernible between the Detached Housing PDLU and the provisions relevant to the Residential-Dwelling House zone suggesting an intention to change the zone of the land.
The first step in the three-stage test suggested in Weightman[24] is to consider the nature and extent of the conflict. While the respondent accepts there are no negative impacts on the residential amenity of the surrounding area from the present use of the property as a photographic studio it is, otherwise, impossible to avoid a conclusion similar to that reached by Atkinson J in Weightman: that is to say, that in light of the clear intent, purpose and expression of the Planning Scheme the conflict is significant. The second and third stage of the exercise involve the identification of planning grounds relevant to the part of the application which is in conflict and, then, the balancing exercise which determines sufficiency, or otherwise.
[24] supra, at para [36]
Relevant Planning Grounds
The planning grounds submitted by the applicant as relevant for the material change of use are:
(a) That there are no negative impacts is considered to be a positive planning ground. Of its own it is not submitted that it is sufficient however, it must be considered amongst the other grounds being put forward;
(b) The site has a close physical relationship with the commercial development currently established on the northern side of Ashmore Road;
(c) Effective buffer both for noise and odour between high-order commercial uses on the north and residential housing to the south;
(d) That this is a suitable transitional use;
(e) That a use where the property is likely to be tenanted is preferable and a positive from a planning perspective as compared to a use likely to leave the property untenanted;
(f) It is not a positive planning outcome to encourage people to live in an area which has a very low residential amenity and consequently, the opposite is true. GHD relevantly note (with reference to the southern side of Ashmore Road) that “The location of further residential uses adjacent to the Ashmore Road frontage also does not present planning merit.” Mr Clegg was prepared to concede that encouraging further residential uses in such an areas was “probably” a negative.
(g) This type of development is positive from a safety perspective in that it enhances the openness of the streetscape which is a positive planning outcome both from council’s perspective and in general as apposed to residential uses which are likely to erect a 6 foot high masonry wall.
Unfortunately for the appellant, similar features were considered and identified by the primary Judge in Grosserv Gold Coast City Council[25] and, on appeal, the Court of Appeal was not satisfied they comprised relevant planning grounds sufficient to justify approving the application despite the conflict with the Strategic Plan[26]. Similarly, some analogous grounds were advanced in Kentbrock Pty Ltd[27] but the Court was not persuaded, in particular, that the risk the property might be regularly untenanted was itself a planning ground or, in any event, one sufficient to justify approval despite the conflict. Nor was the Court persuaded that the absence of negative amenity effects was, in itself, a positive planning ground supporting approval.
[25] (2001) QPELR 56 at paras [6], [22]-[26], [5], [41], [46]-[52], and [65]
[26] 2001 QCA 423
[27] supra, set out at para [33] of the Reasons
Moreover, as the respondent has pointed out, the physical proximity of the land to intensive commercial and retail development on the opposite site of Ashmore Road is a matter which existed when the land was included in the Detached Housing PDLU and the Residential-Dwelling House zone. The existing building will provide a transition, or buffer residential development to houses in Coogeen Street, behind it, from the impacts associated with Ashmore Road and the intensive commercial and retail development on the northern side whether it is used as a residence, or for the approved home occupation – i.e., its amenity as a buffer is not dependent upon the granting of the application for a material change of use.
Nor am I persuaded that there is a proper basis for concluding the existing building could not be used as a residence or for the approved home occupation and, also, appropriately designed and landscaped so as to integrate into the streetscape. Finally, the mere absence of impacts from or objections to the proposed development are not themselves so persuasive as to require this Court to ignore the long-standing, formerly adopted and published planning approach of the Council.
The term “planning grounds” in s 4.4(5A) of the PEA, prefaced by the word “sufficient” connotes grounds which would establish positive betterment in terms of planning outcomes which would not otherwise be achievable through the existing Planning Scheme and justify departure from it. The difficulty for the appellant is that each of the planning outcomes it identifies is equally available under the usage which is presently permitted, and approval would do no more than remove the requirement for a residential component, while permitting the intensification of non-residential purposes. The fact that there are no positive features arising from approval which are not otherwise achievable through development consistent with the planning strategies encapsulated in the 1994 scheme means there is, with reference to the equation described in the third stage identified by Atkinson J in Weightman, no substantive planning feature which justifies approval, despite the conflict.
Has The 1994 Planning Scheme Been Overtaken By Events?
In Grosser this Court was, at first instance, persuaded that the nature of the development on both sides of Ashmore Road rendered the provisions of the 1994 Planning Scheme in respect of the southern side “invalid”. Council itself has been prepared to permit divergence from the provisions of the Scheme in respect of premises at nos. 6, and 194. These matters suggest, the appellant contends, that there is a basis for doubting the propriety of Council’s original planning strategy, or for concluding that it has been overtaken, or surpassed, by events.
Certainly, with the benefit of a view of Ashmore Road it is difficult to avoid the conclusion that the beneficial occupation of premises on the south side by residents, whether “home-occupiers” or otherwise is a proposition not easily accepted. That opinion is strengthened by the evidence of Mr Palyaris, which I accept, concerning the difficulties he has encountered finding tenants for his properties, which are unlikely to abate. Rather, they may be exacerbated by the difficulties and delays he described for tenants wishing to obtain permits for home occupancy, which I also accept.
Nos 6 and 194 each involved, however, unusual circumstances warranting a variation in permitted use. Those circumstances were considered and distinguished by McLauchlan QC DCJ in Kentbrock, and his reasons apply with equal force here. For the same reasons, I am not persuaded there is a basis for concluding those divergences establish the propositions the appellant seeks to draw from them.
Nor will a degree of sympathy for the appellant’s circumstances justify the imposition of changes outside the clear confines of the Planning Scheme. So much is clear from Grosser and, of course, a number of other decisions. Nor, for the reasons traversed earlier, am I persuaded that the terms of the Draft Strategic Plan, or the Desktop Study, or the divergences Council has permitted in respect of nos. 6, and 194 point inexorably to, and compel, the conclusion that there are “positive reasons for overriding the Strategic Plan”[28].
[28] Grosser, supra, per Williams JA at para [9]
Conclusion
The appellant carries the onus of establishing the appeal should be upheld[29] but, for the reasons set out, has failed to discharge that onus by demonstrating sufficient planning grounds to justify approval, in the face of a clear conflict with the Strategic Plan that forms part of the 1994 Planning Scheme. The decision appealed against must, then, be confirmed (save for paragraph (e) of Council’s reasons), and this appeal dismissed.
[29] s 4.1.50(1)
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