Patagorang Holdings Pty Ltd v Douglas Shire Council
[2003] QPEC 48
•05/09/2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Patagorang Holdings Pty Ltd v Douglas Shire Council & Ors [2003] QPEC 048
PARTIES:
PATAGORANG HOLDINGS PTY LTD
ACN 006 201 092
(Appellant)
v
DOUGLAS SHIRE COUNCIL
(Respondent)
GRAHAM LAWRENCE, HEATHER LOGAN AND ANDREA LAWRENCE
(Co-Respondents)FILE NO/S:
33 and 34 of 2001
DIVISION:
PROCEEDING:
Appeals
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
DELIVERED AT:
Cairns
HEARING DATE:
JUDGE:
White DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr P Lyons QC and Mr B Job for the appellant
Mr D Gore QC and Mr T Trotter for the respondent
Mr D Morzone for the co-respondentsSOLICITORS:
Morrow Petersen for the appellant
Williams Graham & Carman for the respondent
Marino Moller for the co-respondents
INTRODUCTION
The land which is relevant to this appeal is as follows:-
(a) Lot 1 on RP 724410 1298 sq m.
(b) Lot 2 on RP 731078 1235 sq m
(c) Lot 113 on PTD 2094 2023 sq m
(d) Lot 114 on PTD 2094 2023 sq m
All Parish of Salisbury, County of Solander 6579 sq m
Appeal No. 33 is against the respondent’s council’s refusal of the appellant’s applications to reconfigure the above parcels of land into a single allotment and for a material change of use thereon. Appeal No. 34 is against the respondents council’s refusal of an application for a permit to damage vegetation pursuant to Local Law 56 of the respondent council.
The subject land is situated on Flagstaff Hill at Port Douglas. For convenience a map of Port Douglas is located at Figure 1 of Ex 1. The main road into Port Douglas is Port Douglas Road which becomes Davidson Street at its northern end. The vast majority of the area of Port Douglas is low, flat, coastal plain. At the northern end is a substantial hill, Flagstaff Hill. The hill is approximately 1 km long and 300 m wide. Its alignment is approximately south east to north west. However, for the sake of convenience throughout these reasons I will refer to it as running approximately east/west. Murphy Street is on the southern side of Flagstaff Hill and runs also approximately east/west. Lot 1 has an 18.105 m frontage to Island Point Road. The combined frontages to Murphy Street total 136.3 m. The shape of the consolidated allotment is illustrated in Figure 4 of exhibit 1. At the Island Point Road end it will have a depth of approximately 26.2 m off the Murphy Street boundary. At the eastern end it will have a depth of 67.6 m off the Murphy Street frontage.
In my view the site may be fairly described as presently under-developed. On Lot 1 there is a restaurant and apartment complex with a swimming pool which has fallen into disrepair. Towards the rear of Lot 113 there is a single storey A-frame dwelling. On Lot 1 there has been some fairly extensive excavation work done in relation to the building and the swimming pool. There is some excavation and levelling done in relation to the residence on Lot 113. There are signs of some clearing having been done and some minor excavation in association with a track across some of the allotments. For the most part however the subject land is vegetated including some trees of substantial age and height. The subject land generally slopes upward from Murphy Street. The gradient varies from place to place but on average would be in the order of 1:3.8.
THE PROPOSED DEVELOPMENT
The original development application was for 10 multiple dwelling (residential) and a caretaker’s residence. That application has been modified for the purposes of the appeal to seven multiple dwelling (residential) and a caretaker’s residence. Further, the proposed development has been presented on appeal as two alternative options. Option 1 is the appellant’s preferred option. Detailed drawings are contained in ex 2 with some amendments in ex 22. As I will explain in more detail later, option 1 does not comply with the respondent’s building height restrictions. Option 2 would involve additional excavation so as to lower some of the buildings to bring them within such height restrictions. A single access to the site is proposed, from Island Point Road. The internal road runs approximately across the slope of the site and then curves down the slope and back towards Island Point Road for a short distance. From the plans I estimate the length of the internal road at approximately 170 m.
The seven individual residences have two storeys above ground. Residences 1, 2 and the caretaker’s residence have a basement below ground level. Three of the residences have three bedrooms, four have four bedrooms. Each of the residences has an individual swimming pool and two car garage. There is no need at this stage to embark upon a detailed description of the residences as they are proposed to be constructed but I will deal with specific aspects as they become relevant. It is sufficient to say at this stage that the design, facilities, and construction materials suggest that each of the residences will be of a very high, even luxurious standard. The evidence is that marketing of the residences will be directed towards them being a “third home” for potential buyers. This, together with the envisaged price at which the residences will be marketed, suggest that the buyers are likely to be persons of very substantial wealth. As third homes it is also anticipated that for a significant part of any year the residences will be unoccupied so that the number of people living on the site at any particular time will be quite low.
INTEGRATED PLANNING ACT
Significant issues arise in the appeal as to whether or not the proposed development complies with various requirements of the respondent’s Town Planning Scheme. Pursuant to s 6.1.3 the current scheme is a transitional planning scheme. The appeal therefore must be determined pursuant to s 4.13 of the repealed Local Government (Planning and Environment) Act 1990 as if it were a consent application. Section 4.13(5)(A) provides:-
“The Local Government must refuse to approve the application if –
(a) the application conflicts with any relevant Strategic Plan or Development Control Plan, and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
Significant issues arise on this appeal as to whether or not the proposal conflicts with the respondent’s Strategic Plan and Development Control Plan 2 – Port Douglas. The appellant does not advance that there are sufficient planning grounds to justify approving the proposed development if there is such conflict.
BUILDING HEIGHT
As I have indicated the appellant has put forward two options on the hearing of the appeal. The respondent contends that both options are in substantial conflict with both the Strategic Plan and Development Control Plan 2. However, there is one particular aspect in which it is said that option 1 conflicts with Development Control Plan 2 and in my view it is appropriate to deal with that particular aspect at this stage, so that if option 1 must be rejected by reason of that particular non-compliance, the balance of the issues may be considered in light of option 2 only.
The subject land is zoned Residential B in the Table of Zones of the respondent’s Planning Scheme. Section 3.3.16 of Development Control Plan 2 provides for special areas which are subject to specific development criteria. The subject land is also included within the Tourist Accommodation Areas (Medium Density) designation in Development Control Plan 2. Section 3.5.1.18 of DCP 2 deals with building height in the Residential B zone and so far as is relevant provides that the permitted maximum building height in the Low and Medium Density areas is 9 m with a maximum of two storeys above ground level. It further provides that council may relax that limit in accordance with subsection 8.2.3 of the Scheme. Part 8 of the Scheme is entitled Development Requirements – General. Section 8.2.3, so far as is relevant provides as follows:-
“Notwithstanding the requirements specified pursuant to subsections 3.5.1.18, a greater building height may be permitted where it can be demonstrated to council’s satisfaction that –
…(b)in the case of a steeply sloping site,
…
(ii) the building design minimises excavation and filling and utilises light framed construction techniques.
…
(iv) the height of the building does not exceed the height otherwise specified in the plan by more than two metres.”
In option 1 residences 4, 5, 6 and 7 would have a building height of a little under 11 m.
Various experts have given evidence as to whether or not option 1 “minimises excavation and filling”. I give them no weight. In ex 4 Mr Peter Smith, the appellant’s civil engineer set out his revised estimates of earth works quantities. I accept this evidence. This demonstrates that for option 1 the total cut (that is excavation) is estimated to be 3,994 cub m with 560 cub m of that excavation material being used for fill. In option 2, 6,238 cubic m will be excavated with 100 cub m being used for fill. According to the Macquarie Dictionary, Federation Edition the primary meaning of ‘minimise’ is “to reduce to the smallest possible amount or degree”. Obviously that definition must be read in light of the context in which the word is used. There is no doubt that in dealing with the construction of buildings, particularly on a steeply sloping site, there will be a need for significant excavation in order to provide secure foundations for any building. However, Mr Noel Robinson, the respondent’s architectural expert satisfied me that there were feasible design techniques available for application on steeply sloping sites which would enable a house to be constructed with little more excavation than would be necessary to properly secure the foundations of the building. In my view the main reason for the amount of excavation required by option 1 (and option 2 for that matter) is the appellant’s desire for size and scale in each of the proposed residences.
The submission made on behalf of the appellant is that because the amount of excavation required by option 1 is substantially less than that required by option 2, therefore option 1 minimises the amount of excavation required. Firstly, it may be assumed that the difference in the quantity of excavation required as between option 1 and option 2 arises in order to get residences 4, 5, 6 and 7 below the 9 m height restriction. There is no alteration to the building design. That is, the design of the buildings in option 1 remains the same. Therefore it can hardly be said that the building design reduces excavation and filling as compared to option 2. What reduces the excavation and filling as between option 1 and 2 is the increased height of the buildings above the primary restriction. Further, and most fundamentally, to simply compare the two does not give proper recognition to the meaning of the word ‘minimises’. In my view the building design in Option 1 does not minimise excavation at all. It follows therefore, that option 1 is in conflict with DCP 2. There being no planning reason advanced to overcome the conflict, in my view option 1 must be rejected.
An issue arose as to whether the proposed developed utilised “light framed construction techniques”. For the sake of completion I should deal with this issue in respect of option 1, although I have concluded that option 1 should be rejected on the “excavation” issue alone. The primary difficulty I have is with the meaning of the term “light framed construction techniques”. It is not defined in the Planning Scheme. The critical word in my view is “light framed”. It is also used in connection with the desire to minimise excavation and to allow for a dispensation in respect of building height restrictions. Mr King-Jones attempted to grapple with the term at p 14 of his report ex 6. Whilst I appreciate his efforts in that regard I have difficulty accepting his approach. In my view there is a difference between ‘light weight construction’ and ‘light framed construction’. “Light framed construction” in my view is primarily concerned with the structural support of the building rather than the external cladding and the visual appearance. However, it would seem to follow that “light framed construction” of the structural support of the building would necessitate “light weight construction” of a building overall. In his oral evidence and ex 68 Mr Robinson gave an example of what he considered to be light framed construction techniques. I accept his evidence in this regard. The proposed development uses masonry block at the foundation level together with cast concrete floors and columns. I have no difficulty in accepting that the top floors of each building uses “light weight construction techniques” but I am not satisfied on the whole that the buildings use light framed construction techniques.
At paragraph 137 of the written submissions on behalf of the appellant it is submitted that paragraph 8.2.3 being part of a transitional planning scheme, although carrying considerable weight, is not binding. It is submitted that there are a number of reasons why the relaxation provided for in paragraph 8.2.3 should be permitted even though the basis for granting the relaxation in sub-paragraph (b) is not made out. In my view such a submission does not give proper effect to s 4.13(5A) of the Local Government (Planning and Environment) Act 1990. Section 8.2.3 of the Planning Scheme, as I have pointed out, is adopted by s 3.5.1.18 of Development Control Plan 2. Therefore if option 1 does not comply with subsection 8.2.3 of the Planning Scheme it is in conflict with DCP 2. Therefore, the application must be refused unless there are sufficient planning grounds to justify its approval. In my view none of the items listed in paragraph 137 of the appellant’s submissions provide planning grounds which would justify approving option 1 despite the conflict with DCP 2.
BUILDING SET BACK
Issues arise as to whether or not the proposed development conflicts with certain provisions of the Strategic Plan, certain provisions of Development Control Plan 2, and other provisions of the Planning Scheme. I propose to now deal with the issue of whether or not the requirements of the Planning Scheme dealing with building set-backs are complied with. The subject land is contained within the Residential B zone of the Planning Scheme. The proposed development is described as seven multiple dwelling (residential) units and a caretaker’s residence. These uses are listed in column 4 of the Table of Zones under the Residential B zone. They are described as consent developments. In Part 6.0- Zoning of the Planning Scheme, so far as is relevant, the narrative associated with the Residential B zone provides:-
“The density of development in different parts of the zone is intended to be controlled through the use of regulatory maps in conjunction with s 8.13 and the relevant provisions of the DCPs. Density bonuses will encourage development which incorporates specific desirable design features in accordance with the character of each locality.”
Section 6.3.1 provides that uses set out in column 4 of the Table of zones “may be carried out only with the consent of council.”
Part 10.0 Development Requirements – Particular zones contains the following relevant provisions:-
“10.6.3 Buildings must be set back a minimum of 6 metres from any road frontage of an allotment provided that a set back of not less than 4 metres from one road frontage may be permitted in the case of a corner allotment.
10.6.4 …building set backs from side and rear allotment boundaries shall be a minimum of 1.5 metres.”
There are additional matters set out in paragraph 10.6.4 but they have no relevance in this case.
The following definitions appear in Part 13.0 of the Planning Scheme and which are relevant to this issue in dispute:-
“Building – any fixed structure which is wholly or partly enclosed by walls and which is roofed. The term includes any part of a building.
Landscape and Recreation Area or landscaped area – the area of a site and any structural decks of buildings on a site that is provided or used as any one or more of –
(i) lawn, garden, rockery, pathway, hedge or other landscaping;
(ii) a swimming pool;
(iii) a tennis court;
(iv) a children’s play area, sandpit or the like; and
(v) an entertainment or recreation area, including a balcony.”
Drawing No. AP41 Issue D of ex 22 is a ground floor level plan of the whole of the subject site. Where the subject land fronts Island Point Road the drawing shows a heavy dashed line, marking 6 metres into the subject land from that property boundary. That line continues along the subject land marking 4 metres in from the property boundary where it fronts Murphy Street. It may also be observed that there is a lighter dashed line marking 2 metres into the subject land from those street frontages. That same drawing also shows that part of the caretaker’s residence intrudes into the 1.5 metre set back area from the western boundary of Lot 2 on RP 737552 which is the property of the co-respondents. I will deal with that matter as a separate issue later. Detailed drawings of each of the proposed residences and the caretaker’s residence are contained in ex 2. Each of the residences includes an aboveground swimming pool with a wet edge. Each of the residences also includes what is described in the drawings as a dining pavilion. Working from the Island Point Road frontage of residence No. 4 and using the drawings relating to each of the residences the following structures – I use this term neutrally – protrude into the 6 metre and 4 metre set back areas.
Residence No. 4:
More than half of the dining pavilion, the western end of the swimming pool, a curved widening area of the swimming pool at its eastern end, on the ground floor a deck extending from the living room and part of a deck extending from bedroom 4, on the first floor a balcony extending from bedroom 2 and a small extension of the roof over the first floor balcony.Residence No. 5:
Half of the dining pavilion, most of the swimming pool, most of a deck extending from the living room and part of a deck extending from bedroom 4, on the first floor part of balconies extending from bedrooms 1 and 2, small parts of the roof extending over the two balconies on the first floor.Residence No. 6:
Approximately half of the dining pavilion, most of the swimming pool, part of a deck in front of the study, part of two first floor balconies extending from bedrooms 1 and 2, part of the roofs extending over the two first floor balconies.Residence No. 7:
Part of the deck extending from the study, most of the swimming pool, approximately half of the dining pavilion, two first floor balconies extending from bedrooms 1 and 2, two sections of roof extending over the two first floor balconies.
Evidence was given as to the way in which, particularly, the dining pavilions and swimming pools were to be constructed and of course I accept this evidence and use it in determining this issue. Other, so-called expert evidence was given as to whether or not these various structures complied with the Council’s set back requirements. In my view such a matter is an issue of statutory construction and therefore of law. I give no weight to any opinions about that aspect of the issue. It is also the case that the principal dispute concerns the dining pavilions and swimming pools. The case for the Council is that they form part of the building of each of the relevant residences and therefore protrude into the set back area required by sections 10.6.3 and 10.6.4 of the Planning Scheme. The design of the dining pavilions and swimming pools is such that they are not structurally connected to the residences themselves. The dining pavilions have separate supporting posts and foundations. They have separate roofs. Structurally they stand alone. On the other hand as is pointed out the height and location of the floors of the dining pavilions is such that in practical terms they form an extension of the decks which they immediately adjoin. The swimming pools are above ground pools. They are supported by concrete pillars. They are of concrete and masonry construction. Once again they are not structurally connected to the residences. However, the location of the pools and in particular, their height is designed to provide immediate access to the pools from adjacent decks. In the case of residence No. 6 (see drawing AP28) there is a pond in a courtyard area which, in my view, is within the residence (i.e. building) proper and such pond is connected to the pool by a cascade. Similarly with residences 5 and 7. Drawing AP18 in respect of residence 4 is somewhat ambiguous but suggests a similar treatment. Nevertheless on the evidence I accept that the pools are structurally independent of the residences proper.
Firstly, I do not think that for the purposes of a Towns Planning Scheme that it is necessary for a structure to be structurally connected to a building in order to be part of that building. In my view, if a structure is by function and by appearance part of the building then it is in fact part of the building. In my view it would be an absurd proposition to permit the clear intent of a provision in a Planning Scheme to be defeated simply by using an alternative means of providing structural support for a structure. Without more I would come to the conclusion that the dining pavilions and swimming pools are part of the residences (i.e. buildings) with which they are connected functionally and by appearance. Unfortunately there are some further issues which make the intent of the Planning Scheme in this regard less than clear. I refer of course to the definition of landscape and recreation area or landscaped area which I have set out above. Section 10.6.8 also deals with development requirements for the Residential B zone. It provides as follows:-
“(2) The whole of the required set back to the road frontage of an allotment shall be provided as landscape and recreation area with no fences within 2 metres of the road frontage.
(3) a minimum depth of 2 metres adjoining the road frontage shall be provided as deep planted landscaping at natural ground level.”
Subsection 10.6.8, it seems to me, must be read together with subsection 10.6.3. Subsection 10.6.3 specifies the depths of the set back required whereas subsection 10.6.8 specifies what must be done with it. When one looks at drawing AP41 Issue D, one observes that the 2 metres adjoining the road frontage is available for deep planted landscaping in natural ground level as required by 10.6.8(3). The submission for the appellant is that in the balance of the set back area the appellant is required to provide a “landscape and recreation area” by 10.6.8(2) and that it is the appellant’s choice as to how that is provided. When one then resorts to the definition of landscape and recreation area this includes a swimming pool and an entertainment or recreation area, including a balcony. A balcony is not defined in the Scheme but according to the Macquarie Dictionary, Federation Edition it is “a balustraded or raised and railed platform projecting from the wall of a building”. Each of the residences, including the caretaker’s residence, contains provision for an internal dining area. Although the dining pavilions are named to suggest a use for them, in my view since they do form functionally an extension to the deck, the combined deck and dining pavilion would fit the description of a balcony and their location and appearance would lend themselves for use as an entertainment or recreation area. The inclusion of “any structural decks of buildings on a site”, in my view, makes it tolerably clear that simply because a structure is part of a building it does not mean that it cannot also form a landscape and recreation area. In fact, I am of the view, that reading the definition of landscape and recreation area together with the definition of building, that the swimming pools and dining pavilions in this case, fitting the description as they do of “landscape and recreation area”, are not intended to be included in the definition of building in this scheme although, as I have said, without that qualification I would be inclined to do so.
CAR PARKING
Section 8.3.1 of the Planning Scheme specifies certain car parking requirements on site for particular developments. It requires 1 space for each residence, 1 visitor car park for each 2 residences, and 1 space for the caretaker’s residence. The proposed development provides for 15 (8 required) residence car parking spaces and 3 visitor car parks (4 required). Section 8.3.13 permits the Council (and therefore the Court) to dispense with or modify the requirements of 8.3.1.
In light of the excess of residential car parking spaces over the number requirement I am satisfied that the requirement for an additional car parking space should be dispensed with.
THE STRATEGIC PLAN
There is an issue over whether or not the proposed development conflicts with certain provisions of the Strategic Plan. I have considered all of the provisions of the Strategic Plan but no useful purpose will be served by setting out any more of its contents than is necessary to explain my findings on the issue. The Strategic Plan is divided into the following sections:-
1.1 Introduction
1.2 The aims and principles of the planning strategy for Douglas Shire.
1.3 Objectives that apply throughout the Shire.
1.4 Intent and objectives for preferred dominant land use areas and criteria for implementation.
The respondent contends that the proposed development conflicts with certain objectives of the Strategic Plan as follows:-
“1.3.2.2 Ecology objectives
1. To avoid or minimise clearing of native vegetation and promote appropriate plantings.
…
2. To avoid or minimise soil erosion and land slippage.
…
5. To minimise increases in the rate and amount of stormwater runoff.
Landscape objectives1.3.3.2
1. To protect visually significant hillsides, cane lands and riverine, estuarine and foreshore vegetation from detrimental impacts.
2. To ensure that new development maintains or enhances the visual character and quality of the area.
…
5. To protect and improve the visual quality of significant natural landscape area.
Tourism objectives1.3.4.1
…
2. To protect or enhance valuable tourism resources and attractions of the Shire.
3. To foster a distinctive and attractive destination image for the Shire.
Taken literally and in isolation I suppose it could be said that the proposed development does conflict with at least some of these objectives in a general sense. However, there are other provisions of the Strategic Plan which bear upon the application of these provisions to the development under consideration. These are as follows:-
1.1.1.1The Strategic Plan covers the whole of the Planning Scheme area of Douglas Shire. It includes –
(a) The Strategic Plan map which shows the preferred dominant land use areas within the Shire, and
(b) This text which describes and explains the Councils intentions for future development within the respective preferred dominant land use areas and the Shire generally.
1.1.1.2 The Strategic Plan does not confer or remove any rights to use land. Such rights are established under Parts 6.0 and 7.0 of the Planning Scheme.
1.1.3.1 This Strategic Plan has been prepared in conjunction with Development Control Plans covering the following localities –
…
(b) Port Douglas including Four Mile Beach, Craiglie and environs (DCP-2 see Part 3.0).
1.1.3.2 The Strategic Plan includes the objectives for future development generally in the Shire as well as the detailed intent for development outside the DCP areas. The DCPs represent a means of implementation of those general objectives at a local level and include the detailed intentions for future development within those localities.
Achievement of the Aim1.2.2.
The central aim of the Planning Scheme is sought to be achieved primarily through ensuring that the location extent, scale, configuration and appearance of development is in accordance with the detailed intent of this Strategic Plan and the Development Control Plans…. The zoning provisions and development requirements provide complimentary mechanisms for controlling the nature, scale, density, configuration and appearance of development.
An important element in promoting the aim of the plan is the designation of preferred dominant land uses for the various areas of the Shire on the Strategic Plan map and the written provisions of the plan that describe the intent for the areas designated in a particular way. Most of the Shire is designated either World Heritage area or area of High Biological and/or Scenic Value; these designations are intended primarily to promote the protection of the Shire’s ecology and landscape. The urban areas provide for compact expansion of the existing urban centres within the edges defined by major physical features as far as possible.”
The subject land is within the Urban preferred dominant land use area of the Strategic Plan map. The ecology, landscape and tourism objectives which I have set out above are all contained in s 1.3 of the Strategic Plan entitled “Objectives that apply throughout the Shire”. The introduction to that section is as follows:-
“The following objectives implementation and explanation provisions apply generally throughout the Shire or to more than one particular preferred dominant land use area. Objectives and related provisions with a direct relationship to a particular area are included under the appropriate heading in s. 1.4.”
Section 1.4 is headed Intent and Objectives for Preferred Dominant Land Use Areas and Criteria for Implementation. It is introduced by the following words:-
“This section includes objectives which relate to particular, Preferred Dominant Land Use Areas as shown on the Strategic Plan map. These objectives which relate generally to development within the Shire or to more than one Preferred Dominant Land Use Area are included in s 1.3.”
Section 1.4.4 deals with the urban area. The following are more significant provisions contained therein:-
1.4.4.1 Intent
Areas of the Shire designated as urban area are intended to include the residential area, business areas, the community and recreation facilities and other areas necessary to provide for the Shire’s future urban population.
1.4.4.2 Urban Area Objective 1
To protect appropriate urban expansion areas from incroachment by competing and conflicting land uses.
…
1.4.4.4 Urban Area Objective 3To ensure the development of physically compact and visually well defined urban areas.
1.4.4.5 Urban Area Objective 4
To provide for a variety of housing needs.
…
1.4.4.7 Urban Area Objective 6To maintain or enhance the amenity of urban areas, in keeping with the planned nature of the locality.
Implementation
The implementation of this objective will be achieved to an important degree through the segregation of incompatible land uses planned in the DCPs for the urban area. The development requirements which apply to the respective zones and DCP map designations seeks to ensure a level of aesthetic presentation which is consistent with the nature of the locality and the beautiful landscape of the Shire as a whole. This high standard will primarily be achieved through control of building height and form and landscaping requirements. Maintenance or enhancement of amenity will always be an important consideration in respect of any development application.
…
1.4.4.11 Urban Area Objective 10To maintain or enhance the distinct character of the different urban settlements.
Implementation
This objective will be implemented through the development requirements of the DCPs which require and encourage different building and landscaping forms in keeping with the character of each locality and provide for different mixes of land uses in different settlements. In particular, the tourism character of Port Douglas is intended to be consolidated, and not permitted to spread significantly to other settlements.”
I respectfully adopt the words of His Honour Senior Judge Skoien in Harburg Investments Pty Ltd v Brisbane City Council & Anor (2000) QPELR 313 at p 318:-
“It is appropriate to set out some recorded judicial comments in relation to the application of statements in planning documents which include Strategic Plans:
(a) “It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare that an express imprimatur or injunction can be found in them for a particular proposal. Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law by s 2.15(9) of the Local Government (Planning and Environment) Act 1990 (see now s 2.1.23 of IPA) are not drawn with the precision of Acts of Parliament in the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected. So such statements should be read broadly.” Degee & Anor v Brisbane City Council & Anor (1998) QPELR 287 at p 289.
(b) A strategic plan only sets out broad desired objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted. (See Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at p 230; the interpretation of the strategic plan ought to involve a “common sense approach” (see Z W Pty Ltd v Hughes & Partners Pty Ltd (1992) 1 QdR 352 at p 360); in interpreting a strategic plan the document should not be read too narrowly; it should be read broadly rather than pedantically; and one should adopt a sensible practical approach (see Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at pp 73, 75 and 78); to enliven the provisions of s 4.4(5A) (of the P&E Act) a conflict must be plainly identified and, in any event, such a conflict alone may not have the result of ruling out a particular proposal (by virtue of s 4.5(5A) see Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPELR 208 at p 212.
In my view the general objectives which the respondent relies upon as being in conflict with the proposed development are intended to be achieved by the particular provisions of the Planning Scheme as they apply to the subject site and as contained in DCP –2 (Part 3 of the Scheme), the zoning provisions (Parts 6 and 7 of the Scheme) and provisions as to development requirements (Parts 8, 9 and 10 of the Scheme). Subject to anything emerging during my examination of those provisions I am satisfied that the proposed development does not in any way conflict with any of the provisions of the Strategic Plan.
RESIDENTIAL DENSITY
The subject land is in the Residential B zone. The proposed use, as I described it earlier, is permissible within the zone with the consent of Council. Significant attention was given in the evidence to “Residential density”. The issue arises in this way. Regulatory Map 17 designates the subject land as a Medium Density Area. Section 8.13 of that part of the Scheme dealing with supplementary use provisions specifies a basic “plot ratio” for the Multiple Dwelling (Residential) use in various areas designated low, medium and high density. There is no dispute as to the designation of the subject land and that it has the following features:-
Basic plot ratio 0.3
Maximum bonus plot ratio 0.15
Maximum plot ratio 0.45
The following appear in the definition section:-
Plot ratio – the ratio between the gross floor area of all buildings erected or proposed to be erected on the site and the total area of that site.
Gross floor area – with respect to a building or buildings the sum of the floor areas (inclusive of all walls, columns, verandahs and balconies whether roofed or not) of all stories in the building or buildings excluding –
(a) the area (inclusive of all walls and columns, of any lift motor room or air-conditioning or other mechanical or electrical plant and equipment room.
(b) the area of that part of any unenclosed private verandah or balcony whether roofed or not directly accessible only from one dwelling unit which is within 3 metres of the back wall of that verandah or balcony to the extent that the sum of all such areas does not exceed 15 per centum of what would be the gross floor area but for this paragraph.
(c) the area of any lobby and/or port cochere at ground storey level and/or any covered walkway.
(d) the areas (inclusive of all walls and columns) at any ground storey of all rooms associated with landscape and recreation area in relation to development for some residential purpose, to the extent that the sum of all such areas does not exceed 10 per centum of the landscape and recreation area provided within the site.
(e) the areas (inclusive of all walls and columns) of all space used or intended for use for the parking of motor vehicles where that parking of motor vehicles is incidental to and is necessarily associated with the use of some premises.
Section 3.5 of DCP-2 sets out provisions for plot ratio bonuses for residential and accommodation development. In particular it describes various desirable design features of developments. The Table of Bonuses at 3.5.1.14 specifies the density bonus available in respect of each desirable design feature. The total of all the individual bonuses exceeds .15 but that is the maximum plot ratio bonus available. Views differed between the competing expert witnesses who dealt with the issue but there is no dispute that the proposed development attracts the maximum bonus plot ratio and whatever method of calculation is used this developments falls within the maximum plot ratio of 0.45. However, plot ratio is primarily concerned with residential density, that is, the number of people who may reside on the subject land at a particular time. It is, of course, relevant to the scale of a development and anticipates development of a certain scale in the Residential B zone. On the other hand there are substantial parts of the “built form” of this development which are not taken into account in determining gross floor area and plot ratio.
ZONING
Similar limitations apply to the importance of the Residential B zoning itself. The proposed uses, namely 7 multiple dwellings (residential) and a caretaker’s residence are Column 4 consent developments in the zone. Section 6.0 of the Scheme deals with zoning. Section 6.1.1 commences as follows:-
“This part establishes the use rights which are generally applicable to land in the Planning Scheme area. [my underlining]
Section 6.3.4 provides as follows:-
“The inclusion of a particular use in Column 4 of the Table of Zones in s 6.5 is intended to convey that in some circumstances in the zone a particular form of the use may be suitable for approval; it is possible that for some identified consent uses no suitable circumstances may in fact exist. The intended character for each zone is determined by the range of permitted uses (Columns 3A and 3B) and the intent of the zone described in subsection 6.4.3 and not by the range of permissible uses. The question of whether or not consent will be granted and if so the conditions to be imposed, if any, will be determined by Council having regard to all of those matters listed in subsection 12.3.3 of this Planning Scheme which are relevant.”
Subsection 12.3.3 provides:-
“Before determining any application made pursuant to subsection 12.3.1 the Council shall take the following matters into consideration where relevant to the particular application –
(a) Whether the proposal would be in accordance with or conflict with the Strategic Plan or the intent of a Development Control Plan and if does conflict with either plan and whether or not there are sufficient planning grounds to justify approving the application despite the conflict.
(b) Whether the proposal complies or is consistent with other provisions of the Planning Scheme including the intent of the zones and development requirements.
…
(g) The size and shape of the site to which the application relates. The siting of the proposed development and the area to be occupied by the development in relation to the size and shape of the adjoining land and the development thereon.
…
(j) Whether any deleterious effect on the environment could be occasioned by the proposed use and if so whether adequate safeguards have been or will be implemented to prevent pollution and protect the environment of the locality.
…
(k) Whether adequate provision has been made for landscaping of the site.
…
(r) Whether the proposed development would detrimentally affect a locality, place, building or work having scientific, architectural, cultural, historical, or other special significance.
…
(y) Any other matters considered to be relevant to the application.
I have listed these matters not because they are specifically relied on by the respondents but because they broadly reflect the nature of the objections they have of this particular development. In my view, therefore, although the use proposed is consistent with the zoning provisions, the zoning provisions alone are essentially neutral when it comes to a decision as to whether this development in its particular form should be approved.
Part 10.0 s 10.6 deals with development requirements in the Residential B zone. It deals with such things as building height, number of storeys, set backs, length of buildings, landscaping, site coverage and plot ratio. Having rejected Option 1 and resolved the set back issue in the applicant’s favour I proceed on the basis that the proposed development complies with all of those requirements. But caution is needed, because these aspects are not exhaustive in relation to any development on this particular land. They are not exhaustive in relation to its total form and scale.
DEVELOPMENT CONTROL PLAN
I turn now the provisions of Development Control Plan 2 – Port Douglas. Firstly, there can be no doubt that the planning studies in the Planning Scheme consider Flagstaff Hill to be of utmost importance as a visually dominant feature of Port Douglas. There is no need to set out all of the substantial extracts from the documents to support this view. DCP-2 is that part of the Planning Scheme which sets out the Council’s aims, objectives and strategies for development in Port Douglas and on Flagstaff Hill in particular.
Section 3.2 sets out the aims and objectives of DCP-2. The following are relevant:-
3.2.1Aim
The central aim of this development control Plan is to consolidate Port Douglas the major tourist accommodation and tourist service centre in Douglas Shire, while also ensuring satisfactory living areas for a permanent residential community. This aim incorporates important objectives of the Strategic Plan. Associated with this aim is the intention to enhance the distinctive image of Port Douglas as a tropical seaside resort town, with a distinct rural and natural hinterland and characterised by low-rise Queensland vernacular architecture and dominant lush tropical vegetation. A range of residential opportunities is intended to be available to the community including the option to live in areas that are free from the intrusion of tourist activity.
3.2.2Objectives
One of the purposes of the Development Control Plan for Port Douglas is to promote the implementation of the Strategic Plan objectives especially those for tourism and urban areas in as much as they are relevant to Port Douglas (see subsections 1.3.4 and 1.4.4). The Plan also has the following objectives for the development of Port Douglas –
·To consolidate Port Douglas as the major tourist accommodation and service centre in the Shire.
·To provide for development of additional urban housing and other urban facilities in Port Douglas, in a pleasant, functional, distinctive and visually well defined area.
·To afford protection to permanent residential areas from intrusion by tourist accommodation and activity.
·To consolidate the role of the Macrossan Street Marina Mirage known as the pre-eminent tourist retail, dining and entertainment centre in Shire.
Townscape objectives.
·To maintain the image of Port of Douglas as a tropical seaside resort town with a distinct natural and rural hinterland.
·To enhance the visual dominance of tropical vegetation in the Port Douglas streetscape so as to create the effect of a large tropical botanical garden.
·To retain the natural vegetated appearance of Flagstaff Hill.
·To ensure that future residential and accommodation development is sympathetic to the developing tropical Queensland vernacular building style.
·To enhance those characteristics of development within the main shopping and business area of Port Douglas which are distinctive and attractive.
Section 3.3 sets out the intent for DCP-2 map designations and criteria for implementation as follows:-
3.3.1General
Council’s intent for the future development of the DCP area as designated on the DCP-2 map is described in the following subsections. Development which is not in accordance with the expressed intent for the respective designations shall not be supported.
The subject land has two designations on the DCP-2 maps. They are:-
(a) Tourist accommodation area – medium density
(b) Special Area 5
Relevant provisions relating to the tourist accommodation area – medium density designation are as follows:-
3.3.6.1Intent
Lands in this designation are intended predominantly to be developed for tourist accommodation, principally premises (including motels) and multiple 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.
3.3.6.2Implementation
Most of the land within the Tourist Accommodation Areas is included in the Residential B zone. Although accommodation uses generally require consent this is primarily because of the statutory requirements with respect to headworks charges. It is intended that Council will generally approve, subject to appropriate conditions, consent applications 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.
In my view there is nothing at all in these provisions which suggest that the proposed development should be refused. In fact I would go so far as to say that the proposed development fits entirely with the intent and relevant implementation concerning this particular designation. I note that the respondent raises no objection about the proposed residential use of the development.
The intent and implementation in relation to Special Area 5 is disarmingly brief. It provides as follows:-
3.3.16.6Special Area 5
Intent
This designation covers freehold lands on Flagstaff Hill. It is intended to retain and enhance the natural vegetated appearance of Flagstaff Hill, to minimise the visibility of buildings and ensure the stability of the hill.Implementation
In accordance with provision 7.2.1 all permitted developments within this area is only permitted subject to conditions. All applications for conditions, consent or scheme amendments within this area should be accompanied by the documentation outlined in provision 3.5.2 except where such information has been provided with an earlier application for the same development.
In my view it is this provision which is at the heart of the Council’s objection to the proposed development. I will return to consider it in much more detail later.
The respondents submit that the proposed development does not comply with townscape objection 3.4.3. I will set it out in full:-
3.4.3Objective
To retain the natural vegetated appearance of Flagstaff Hill.
Implementation
Land in private ownership on Flagstaff Hill predominantly that land with frontage to Murphy Street has been included in Special Area 5. All development in that area will be subject to special development conditions directed towards ensuring vegetation protection and enhancement, sympathetic building design, materials and colours and slope stability. Land in public ownership in Flagstaff Hill is designated as a protection area (see subsection 3.5.2).Explanation
Flagstaff Hill is not only a prominent natural landmark but also a naturally vegetated backdrop of the utmost visual significance to the town of Port Douglas. The retention of its natural vegetated appearance is essential to the image of the town and Shire as a tourist destination emphasising exploration and appreciation of the nature environment. It is also important to maintaining the visual dominance of tropical vegetation in accordance with 3.5.1.4 below.
Subsection 3.5.1.4 – dense tropical vegetation is contained in s 3.5 Development Requirements and deals with bonuses for residential accommodation development, in particular plot ratio bonuses. Although the proposed development attracted the maximum plot ratio bonus available, in my view it was not entitled to any plot ratio bonus by reason of this particular provision. I should also add that it would be wrong, in my view, to proceed on the basis that a proposed development is not in conflict with the provisions of the Development Control Plan simply because it complies with all quantitative development requirements. Having said that, in my view townscape objective 3.4.3 is covered in its entirety by the provisions of the DCP relating to Special Area 5. This requirement also is the most site specific of the provisions of the Development Control Plan relating to the subject site and in my view the principal objection raised by the respondents concerning the proposed development arising out of its location on Flagstaff Hill can be assessed against the provision concerning Special Area 5.
It is firstly necessary to form a view about the significance of the Special Area 5 designation. Section 3.3.16 deals with the various Special Areas designation on the DCP-2 maps. The following appears:-
3.3.16.1General
These overlay designations cover areas where the intent of the primary designation(s) is (are) qualified by special development criteria. Where appropriate, reference to such special development criteria is included in the intent of the primary designations as well as below. The relevant primary designations should also be referred to.
Given the undoubted importance placed upon Flagstaff Hill in this Development Control Plan, it is unfortunate that the language of the specific provisions is so brief, imprecise and generalised. Obviously the words of subsection 3.3.16.1 and 3.3.16.6 should not be looked at in isolation. Expressly, the relevant primary designation namely Tourist Accommodation Area – Medium Density should be referred to. I have difficulty with the term “special development criteria” contained in subsection 3.3.16.1. I have difficulty ascertaining the “special development criteria” which one is led to believe are to be found in s 3.3.16.6. I can find nothing in s 3.3.6 dealing with tourist accommodation areas to suggest that reference to such special development criteria is included in the intent of the primary designation as well as the special area designation. The reference to provision 7.2.1 has no relevance in this particular case because this is not “permitted development”. The requirement concerning documentation outlined in provision 3.5.2 is an information provision. That information is required to permit the Council, or in this case the Court, to assess the proposed development against any “special development criteria” but does not provide any significant assistance in identifying such criteria.
The “special development criteria” associated with Special Area 5 are obviously of some significance. They are said to qualify the intent of the primary designation, that is tourist accommodation area – medium density. According to the Pocket Macquarie Dictionary the most appropriate meaning of the words ‘qualified’ in the context in which it is used here is “modified, limited or restricted in some way”. In the absence of any express “special development criteria” set out in paragraph 3.3.16.6 I conclude that they are to be ascertained from the second sentence of the intent section of 3.3.16.6, namely –
“It is intended to retain and enhance the natural vegetated appearance of Flagstaff Hill to minimise the visibility of buildings and ensure the stability of the hill.”
In my view what is required is a value judgment which is made very difficult without any sort of standard at all against which the proposed development may be measured.
I would characterise the special development criteria applicable to Special Area 5 as follows:-
(a) To retain the natural vegetated appearance of Flagstaff Hill.
(b) To enhance the natural vegetated appearance of Flagstaff Hill.
(c) To minimise visibility of buildings.
(d) To ensure the stability of the hill.
Flagstaff Hill is not presently in a completely natural state. There are existing developments on privately owned land within Special Area 5. I form no conclusions as to whether other developments comply with the special development criteria. If they do not, that would not provide a basis for permitting the proposed development to proceed if it does not comply.
It is also patently obvious that the Planning Scheme does not intend to prevent any development at all in special Area 5. It expressly anticipates that there will be buildings and it intends to retain and enhance the natural vegetated appearance, not the natural vegetated state. The subject land is very significant. It is a large site which is highly visible. There are a number of trees on the land which presently contribute substantially to the natural vegetated appearance of the site and therefore of Flagstaff Hill. I will come to consider them more closely shortly. The evidence relating to this issue is also relevant to the appeal against the respondent’s refusal to grant a permit to damage protected vegetation pursuant to Local Law No. 56.
In my view the trees on the subject site which presently contribute most to the naturally vegetated appearance of Flagstaff Hill are those which are the tallest and with the most extensive canopies. Where trees have been individually identified they have been given an identifying letter (see for example p 6 of ex 9). Trees A, D and E are tall Milky Pines. They are very prominent. There is a dispute about the health of tree A. Mr Singh considered it to be dying and virtually beyond saving. Mr Mulholland was optimistic about it survival. I prefer the evidence of Mr Singh. He made a much more thorough examination of the tree than Mr Mulholland. Tree A suffers from the following problems:-
(a) Die back in the canopy.
(b) Rot, including a substantial area in one of the main stems.
(c) A dead area in another of the main stems.
(d) A severe psyllid infestation.
(e) Defoliation.
(f) Substantial constraint of the root area occasioned by the existing swimming pool, apartment building and a pathway.
Accepting that the site is one upon which the Planning Scheme anticipates, moderately substantial development for residential purposes, the potential danger to people on the land from this tree in the future must be taken into account. In my view it is appropriate that tree A be removed.
The appellant proposes to retain trees D and E. It is obvious that the proposed development will involve construction very close to these trees and involving some damage to their root systems. However, I accept the evidence that the trees are capable of withstanding and surviving some interference. I accept the evidence of Mr Wyatt and Mr Singh in this regard. It seems to me to be somewhat inconsistent to assert that tree A is healthy in spite of the extensive interference with its root systems but that trees D and E are at risk of destruction from the much less extensive interference with their root systems which would result from the proposed development.
Tree N presently contributes significantly to the natural vegetated appearance of Flagstaff Hill. However it is extensively infested with termites and there is no dispute that it should be removed. Trees O, S and T are large trees contributing to the natural vegetated appearance in a significant way. It is proposed that they be retained and I am satisfied that they will survive the construction of the development. Tree L is a large tree which is intended to be retained. It is difficult to ascertain with precision the number of trees on the site. I suspect about 40. I give little weight to trees identified some years ago but not identified by anyone in more recent examinations of the site. I think it can be safely assumed that if they have not been identified as being significant then they do not contribute in any significant way to the natural vegetated appearance of Flagstaff Hill. The appellant proposes to retain 13 of the trees on site, which includes those of greatest significance to which I have earlier referred. As I have already indicated the special development criteria which apply to Area 5 cannot be looked at in isolation and taken too literally in light of the fact that those development requirements anticipate that there will be building on the site and the compliance of the proposed development with other development requirements to which I have earlier referred.
Another matter which, in my view, is relevant to the retention of the natural vegetated appearance of Flagstaff Hill is the contemplation in the development proposal that there will be a single access to the site from Island Point Road. I had some concerns about the extent of the internal road. However, a benefit of the single access from Island Point Road and the internal road in the development is that none of the existing vegetation along the Murphy Street frontage of the subject and within the road reserve will be disturbed in any way by the need for access. That vegetation contributes to the natural vegetated appearance of Flagstaff Hill and the development does contribute to its retention. The appellant also accepts that it would be appropriate to require it to carry out plantings in that area and is obviously willing to comply with any condition in relation thereto which the Council would want to impose.
The appellant also proposes as part of the development to undertake extensive plantings, including of relatively mature trees, within the development. I am satisfied that these can and will be carried out. It is in the interests of the marketability of the development as completed that this be done. There was some dispute in the evidence as to the extent to which the landscape plan will screen the buildings in future years. This of course is a difficult matter to predict with any certainty. However I am satisfied that the landscape plan proposed by the appellant will substantially screen the buildings within a reasonable time.
There seem to be to be no serious dispute about the stability of the hill being assured. I accept the evidence of Mr Cook and Mr Smith in that regard. On the whole, therefore, I am satisfied that the proposed development complies with what I have identified as the special development criteria applicable to Special Area 5 in Development Control Plan 2.
LOCAL LAW NO. 56
I turn now to consider the application of Local Law No. 56. Part 2, Division 1 of the Law provides for the making by the Local government of vegetation protection orders. There is a vegetation protection order in force for Residential B land within Port Douglas. I accept that there are a number of trees which the appellant proposes to remove which come within the scope of that vegetation protection order. Section 31 allows a person to apply for a permit to damage and dispose of protected vegetation in circumstances where the damage is not otherwise permitted by the Local Law. That is what the appellant in this case did and the application was refused. A decision about whether or not a permit should be granted comes down to a value judgment weighing up a variety of factors. Subsection 2(3) of the Local law provides as follows:-
“In administering this law the local government must seek to achieve a balance which integrates the achievement of the objects set out in subsections (1) and (2) with the objectives of supporting:-
(a) economic sustainable development; and
(b) maintenance of the cultural, economic, physical and social wellbeing of people and communities.”
Subsection 2(1) sets out a list of what I consider to be, relevant factors to be taken into account in the administration of the law. So far as is relevant in this case it provides as follows:-
“The principal object of this law is to provide appropriate protection for vegetation that is:
(a) a valuable part of the natural heritage of the area; or
…
(e) of historic or cultural significance; or
…
(n) important for its beneficial effect on the visual amenity and landscape quality of the locality in which it is situated or for its own aesthetic value; or
…
(p) important in the context of the objectives of State or local government planning, land management and environment and environmental management policies and initiatives; or
(q) of other environmental significance.”
I am prepared to accept that some of the trees on the subject site have importance by reason of those specific items I have set out above. However, I am also satisfied that all of the trees which the appellant proposes to retain (save for trees A and N which must be removed) fit within those descriptions. I am further satisfied that the trees which the appellant proposes to remove do not fit within those categories. In my view subsection (3) by implication requires the local government to take into account provisions of a Planning Scheme which might be relevant to development on a particular parcel of land when considering the issue of economic sustainable development. In light of that I am satisfied that the retention of the trees proposed to be retained but removal of the trees proposed to be removed is consistent with the objects of Local Law No. 56.
In written submissions the respondent raises subsection 31(3) of the Local Law for the first time. It provides:-
“If the purpose for which a permit is sought could be achieved without the proposed damage to protected vegetation or with less damage the application must include or be accompanied by a written explanation stating why it is not prudent and feasible in the circumstances to carry out the purpose in a way that avoids or reduces damage to protected vegetation.”
In my view no evidence was directed towards this requirement. The word “purpose” is not defined. The submission for the respondent seems to assume that the condition precedent giving rise to the need to provide such an explanation is satisfied. Under the usual rules of pleading, in my view, in order to raise this as an issue it would be for a party in the position of the respondent to specifically plead the failure to comply with a condition precedent. Although it might be said that the rules of pleading do not apply to appeals in the Planning and Environment Court, there is an obligation on the parties to identify the issues raised in an appeal and the court makes orders defining such issues. No notice of an issue concerning subsection 31(3) was given by the respondent in this case. I am not satisfied that the evidence demonstrates that the “purpose for which the permit was sought” could be achieved without the proposed damage to protected vegetation or with less damage. In my view the purpose for which the permit was sought was to construct the proposed development. It might well be that some different form of development might have been achieved without the proposed damage to protected vegetation or with less damage than is proposed here. But in my view some other form of development would have been a different purpose.
The respondent also refers to subsection 32(2) of the Local Law which provides:-
“In the case of an application for a permit where the purpose of the damage relates to the carrying out of development on the land other than a dwelling house and access thereto the local government must not grant a permit unless all building permits or development permits required for the development have been issued.”
However, the submissions for the respondent do not go on to explain how it is considered that this subsection is relevant in this particular appeal. Counsel for the appellant in their written submissions anticipate that the clause has been raised because no building permits or development permits have yet been issued in relation to the proposed development. I do not see this as a critical issue. Section 32(1) provides that the local authority (and therefore the Court) can grant a permit subject to conditions. There appears to be no limitation on the scope of such conditions. Subsection 34(1) provides that a permit may be granted on conditions the local government considers appropriate. In my view this would apply to a permit which is ordered to be granted by this Court. In my view any problem can be overcome by simply ordering that the permit be issued subject to the appellant obtaining all necessary building permits or development permits. I am satisfied that a permit should be issued subject to appropriate conditions provided that the substantive appeal is upheld and the proposed development approved.
AMENITY
As well as supporting the respondent’s case in relation to compliance with the Planning Scheme the co-respondents raise a particular issue of amenity. They submit that the amenity they enjoy will be detrimentally affected by-
(a) the existence, proximity and use of the caretaker’s residence;
(b) the proposed landscaping methods to be applied to the proposed development;
(c) the removal of mango tree C located approximately on the boundary line between the co-respondent’s property and the subject land.
I have no doubt at all that the co-respondent’s enjoy a very high level amenity, particularly visual amenity, from their residence above and behind the subject land on Flagstaff Hill. The views of the vegetated ranges to the west, the ocean beaches and vegetated backdrop to the north and south are spectacular. I have no doubt that the co-respondents have also enjoyed the amenity of having the subject land in its relatively undeveloped and under-utilised state which has existed for some significant time past. However in my view, the proposed development as a whole, particularly confined to option 2 will not significantly intrude into the distant views which the co-respondents presently enjoy.
In light of the amenity which the co-respondents have enjoyed it is not surprising that they are concerned about the establishment of the proposed development. However, as I have indicated in the foregoing reasons, it complies with the provisions of the Planning Scheme and must be therefore be taken to have been within the reasonable contemplation of the co-respondents.
In respect of the caretaker’s residence, it is well within the height limitation imposed by the Planning Scheme. It is lower down the slope than the co-respondent’s dwelling. The dining pavilion, about which the co-respondents’ express particular concern is properly classified as landscaping under the Planning Scheme and may be lawfully constructed within the side boundary set back area. In my view the dining pavilion is well away (approximately 13 metres) from the closest point of the co-respondents’ dwelling. The co-respondents’ land is irregularly shaped. The caretaker’s residence and, in particular, its dining pavilion are beside a relatively low, presently under-utilised portion of the co-respondents’ land which projects down the slope. The co-respondents have not indicated that they have any specific plans for this area. As to the mango tree I have no doubt that the co-respondents enjoy its presence but unfortunately it is not on their land. In my view its removal will have very little in the way of significant impact upon the overall exceptional visual amenity which they presently enjoy. On the whole I am satisfied that the proposed development will not unreasonably or significantly interfere with the amenity of the co-respondents.
OVER-DEVELOPMENT
The respondent submits that the proposed development represents an over-development of the site. In particular, it refers to four particular matters as follows:-
(a) The excessive degree of tree removal;
(b) The inability to achieve privacy objectives;
(c) The excessive amount of excavation;
(d) The overall extensive elevational aspect.
I have already dealt with the issue of tree removal in some detail and I am not satisfied that the extent of tree removal involved in the proposed development constitutes an overdevelopment of the site.
The evidence disclosed, and the appellant accepts, that there were some design errors which do give rise to some privacy issues. However it may reasonably be accepted that residents will live in relatively close proximity to one another in multiple dwelling developments. Further, I am satisfied from the evidence of Mr Hunt that these design errors are relatively minor and can be readily overcome. I am satisfied that these do not form any basis for a view that they constitute over-development of the site.
In option 2, 6,238 cubic metres will be excavated with 100 cubic metres used for fill. On a site of 6,579 sq. metres in my view this amount of excavation can be fairly described as substantial. What is of even more significance in my view is the result which will follows such excavation in this particular case. I accept the submission of the respondent that plan C01G of ex 23 shows that the excavation will result in extensive retaining walls as follows:-
(a) Above the driveway for approximately 50 metres to a maximum height of 4 metres;
(b) Above and around residence 1 of approximately 35 metres to a maximum height of 2.3 metres;
(c) Above and around residence 2 of approximately 50 metres to a maximum height of 4.2 metres;
(d) On the high side of the road adjacent to residences 1 and 2 associated with driveways approximately 60 metres to 70 metres in length for a maximum height of 2.5 metres;
(e) On the lower side of the road adjacent to residences 6 and 7 approximately 50 metres with a maximum height of 3.3 metres;
(f) In the region of tree N approximately 20 to 25 metres with a maximum height of 1.5 metres;
(g) In the regions of trees L and E retaining walls totalling approximately 20 metres in length with a maximum height of 2.9 metres;
(h) On the lower sides of villas 4, 5, 6 and 7 retaining walls totalling approximately 70 to 80 metres;
(i) On the lower side of the driveway near the entrance approximately 20 metres with a maximum height of 2 metres.
Option 2 requires further excavation in order to reduce the heights of residences 4, 5, 6 and 7 such that the retaining walls are likely to be at least somewhat higher than for option 1 if not somewhat longer. The result, in my view, is that the subject site will take on a multiple terraced appearance significantly altering the natural slope of the land.
With respect to the elevational aspects of the buildings I am not concerned that the development will give the appearance of one large building. All of the buildings are of similar design but in my view that is a matter of personal choice about which minds might differ. It is the appellant’s development and it is entitled to design the buildings in a similar way. In my view the articulation of the roofs and walls together with the physical separation of them both across the site and within the depth of the site, will clearly separate the buildings in respect of their appearance. I am concerned about the appearance of bulk of the individual residences. They are large by any ordinary standard. In addition, the dining pavilions are elevated and prominent. The swimming pools are elevated off the ground and in my view add to the appearance of bulk of each of the residences. I get the impression that the architects have cleverly utilised the development requirements concerning landscaped areas to add substantially to the size of each residence in a way which will not be penalised by being taken into account in the calculation of gross floor area, to add to the imposing scale of the building of each residence. I say this by way of observation and not as a criticism.
These two matters, namely the extent of excavation and the appearance of bulk of the residences have caused me considerable difficulty. If I had an unfettered power to do so I might even have been moved to dismiss the appeals on the basis that the proposed development does amount to an over-development of the site on these two bases. However, the power of a judge of this Court to make such a decision is by no means unfettered. 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 QCA 8502/2000 9 October 2001).
The above proposition applies equally to all parties involved in the approval process of a proposed development. The applicant for approval of a development is bound by the local authority’s planning scheme and is not entitled to depart from it unless very good reason can be shown for doing so. Equally, an applicant for a development is entitled to expect that if his proposal does comply with all of the relevant requirements of a Town Planning Scheme it will be approved. Equally, a Council is bound by its own planning scheme. The Council of the day is not entitled to reject a development proposal simply because the majority of councillors on the day don’t like some aspect of the proposed development or perceive some weakness or deficiency in the planning scheme. The proposition applies equally to submitters. Submitters are entitled to expect that a council will properly apply its own planning scheme. Even if a council approves a development proposal a submitter is entitled to come to the Court and have the approval set aside if the proposed development does not comply with the planning scheme and there is no good planning reason for departing from the provisions of the planning scheme. On the other hand a submitter is not entitled to have the council or the court give effect to his or her personal likes and dislikes when it comes to the use of other people’s land unless those likes or dislikes are reasonable in light of the provisions of the planning scheme.
In respect of the issue of excavation about which I have expressed concern there can be no doubt that some relevant provisions of the planning scheme evidence a desire on the part of the Council that excavation be avoided. However, there is no provision which bars or limits excavation either in quantity or form where there is no threat to slope stability. Rather, the Planning Scheme attempts to encourage developers to minimise excavation by offering a building height dispensation in return for a development design minimising excavation. However, the language of this provision cannot be tortured into a construction which limits a developer in the amount of excavation and form of excavation it can undertake if it choses not to, or is unable to, avail itself of the building height dispensation. On the evidence no issue of slope stability or adverse effects on the stability of neighbouring properties prevents the amount and form of excavation proposed in this case. In fact the respondent’s argument in relation to excavation was primarily directed to the issue of vegetation clearing which I have resolved in the appellant’s favour.
The appellant is in an even stronger position regarding the bulk of the buildings. This Planning Scheme contains detailed provisions concerning such things as building height, number of storeys, building set backs, length of buildings, landscaping, site coverage and plot ratio. By reason of the Special Area 5 designation on this site it also imposes some what may be called qualitative controls over development. Local Law No. 56 also provides some control over the scale of development. In fact, this Planning Scheme gives some priority to desirable design of buildings by permitting an increase in plot ratio when such desirable design features are adopted. Having resolved that the proposed development complies in all material respects with the provisions of the Planning Scheme in my view there is no proper basis upon which I could make a finding that the proposed development constitutes over-development of the site. In my opinion to do so would be to impose a subjective planning view inconsistent with the intent of the Scheme.
I therefore propose to allow all of the appeals. I will not make any formal orders at this stage. I will forward my reasons to the parties and allow time for conditions, consistent with these reasons, to be agreed upon. If any of the parties wish to bring the matter on before the Court they may do so by agreement or upon request to the Registrar for the appeals to be re-listed, upon giving two days prior notice of the request to all of the other parties.
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