Peninsula Architects v Redcliffe City Council
[2005] QPEC 107
•9 November 2005
PLANNING AND ENVIRONMENT
COURT OF QUEENSLAND
CITATION:
Peninsula Architects v Redcliffe City Council [2005] QPEC 107
PARTIES:
PENINSULA ARCHITECTS PTY LTD
Appellant
REDCLIFFE CITY COUNCIL
Respondent
STATE OF QUEENSLAND
Co-respondent by election
FILE NO/S:
BD 3915/2004
DIVISION:
Appellate
PROCEEDING:
Appeal against refusal of development application
ORIGINATING COURT:
DELIVERED ON:
9 November 2005
DELIVERED AT:
Brisbane
HEARING DATE:
26-29 September 2005
JUDGE:
Robin DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
Integrated Planning Act 1997, s 6.1.29, s 6.1.30 – Local Government (Planning & Environment) Act 1990,
s 4.4.(5A) – Applicant appeal – six-storey proposal conflicting with three-storey height limit – no justification by way of sufficient planning grounds for approval of development applicationCases cited:
Ambrose v Gatton Shire Council (1980) 1 APAD 179, 184
Jones v Redcliffe City Council [2004] QPELR 275
Peninsula Property Traders Pty Ltd v Redcliffe City Council [2004] QPEC 077
Warringah Shire Council v Sedevcic (1987) 10 NSW LR 335, 342; 63 LGRA 367
COUNSEL: Mr Hinson SC for Appellant
Mr Houston for Respondent
SOLICITORS:
Anderssen Lawyers for Appellant
Corrs Chambers Westgarth for Respondent
The Appellant made a development application dated 20 November 2003 in respect of a 1490m2 site at the western corner of Hornibrook Esplanade and Laura Street, Clontarf owned by Ganrey Pty Ltd. The existing use is shopping centre; the application sought a development permit for a material change of use to “composite building: retail & multiple dwelling”. The proposal was for ground level shops aggregating 274m2 underneath 5 levels each with four 3 bedroom units. The Council decided to refuse the application on 27 September 2004; its decision notice was sent out two days later, to be followed by this applicant appeal filed 2 November 2004. Building height is the main issue. As will appear, the planning instruments should be construed to indicate a three storey limit.
The State of Queensland was made a co-respondent, having an interest as a road authority, but was excused from taking any active part in the appeal. The application attracted a dozen adverse submissions, mostly from residents of Laura Street, which contain a good deal of material in common. There was no submission from the adjoining site in Laura Street, which belongs to the Queensland Housing Commission, either from the Commission or from any tenant of the townhouse-type dwellings there.
None of the adverse submitters elected to be a co-respondent. However, the Council’s evidence included the statements of Mrs Bondeson, Mrs Muddle, Mrs Ungerman, Mrs McPhie, Mr & Mrs Reilli and (representing Yacht Street) Mr Buchanan. Like the Council, each of them is accepting of a three-storey development on the site. They enjoy living near the beach and the amenity offered by Pelican Park which the Council has in recent years been establishing on reclaimed land on the beach side of the Esplanade. Ignoring a sprinkling of flats, essentially on the Esplanade, the area is one of detached dwellings. As Mrs Ungerman puts it, “Although I know that this area is not really a country area, for me it has that feel. It is a lovely quiet area.” Understandably the local people would prefer not to see changes, particularly new buildings of a scale “out of keeping with what we have in the area now.” They do not want to lose the existing shops, the bakery in particular. A number of them are expressly fearful of a kind of “reverse domino” effect. As Mrs Muddle says, “Once you get one high-rise building, then you will get more. I think that this will lead to a wall of high-rises along Hornibrook Esplanade… with any view to the ocean blocked off.”
All of the submitters proclaimed their reliance on the three-storey height limit being respected. Mr Hinson SC (for the Appellant) argues that such reliance is misplaced, given that the local government enjoys the wide discretion now set out in section 34 at the end of Part IV (Special Requirements in Relation to Particular Development) in its Consolidated Planning Scheme 1996: -
“34. Discretionary Provisions
(a) Notwithstanding the requirements of clauses 5,7,11,13,15,23,24 and 25 of this Part, the Council may modify these provisions if it is considered that such modification is warranted having regard to the following factors: -
(i) The location of the proposed building in a non-residential zone or precinct;
(ii) The use of a part of the building for other purposes in addition to that of a multiple dwelling or accommodation units;
(iii) The topography of the site or adjoining site;
(iv) The amenity and future amenity of the area;
(v) The nature of adjoining zones or precincts and uses.”
Table 5 in clause 25 sets out height limits for multiple dwellings in item 5. See [14] below.
Exercises of discretion by local governments to permit relaxations of various kinds are undoubtedly productive of feelings of injustice and of having their rights ignored in neighbours and others whose amenity is adversely affected (also by other developers who may be refused comparable indulgences), but such discretions are commonly found in planning arrangements, indeed may form an important part of them. Mr Hinson referred to Ambrose v Gatton Shire Council (1980) 1 APAD 179, 184 and in a broader context Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, 342; 63 LGRA 367. The former, as well as illustrating the importance of the discretion to recognise special cases, makes the related point that no precedent is created by a local government’s or the court’s decision upon a particular application, at 181. These are related mantras in the jurisdiction, often uttered in judgements. Mr Hinson instanced the second Indooroopilly Golf Club case (1987) QPLR 178 at 180-181:-
“While zoning gives rise to reasonable expectations on the part of interested people as to the types of uses to which land will be put, the very fact that rezoning procedures are provided for… means that those expectations must be taken to recognise the possibility of the establishment of different uses in appropriate cases.
As has been stated often, the doctrine of precedent plays no part in the consideration of town-planning matters. See, for example, Martin Dillon & Associates v. Townsville City Council (1981) 1 Q.P.L.R. 29 at 32. So, if contrary to my views, the Club were to apply for a rezoning of other land in the future, the result in this case would have no binding or even persuasive effect.
Mr. Butler suggested that, while no precedent might be set, a decision to rezone makes it difficult to refuse a later application to rezone. No doubt the life of a Local Authority as a town-planner is filled with difficult decisions, but that is not to the point. Its duty is not just to decide clear-cut cases, but also in difficult cases to draw the line at an appropriate point. If it were proper for the Local Authority to reject an application because its success could lead to subsequent applications which it would feel obliged to allow, then logically it could never allow any application no matter how obviously meritorious it was lest it give rise at some later date to unmeritorious applications.”
If the general public, developers or not, are to have a true understanding of the planning law, it may be appropriate that “warnings” are incorporated in planning documents with sufficient prominence to ensure that they cannot be missed by a lay person who has located the ordinary development standards. It would also be desirable, where special cases are recognised, and relaxations permitted, for reasons to be formulated and made available for scrutiny by the public. The parties’ traffic experts, Mr Stuart Holland and Mr Brett McClurg signed the following document:
“External Issues
The generation of development traffic onto the adjacent residential street system (i.e. Laura Street, Cornelius Street, Thomas Street), whilst it will occur, will not be an unacceptable impost to the amenity of these streets. This is on the premise that the generated traffic will be low volume and residential generated. Given the existing retail uses, there is no anticipated increase in retail generated traffic.It is acknowledged that the development will generate pedestrian movements across Hornibrook Esplanade. This would create the need for crossing facilities. However, a coordinated approach by DMR/Council is required to determine appropriate provisions for such crossings and the development should not be solely responsible for providing this.
Internal Issues
There are a number of issues with the internal site layout that have been agreed as deficiencies. These issues include vehicle queuing at the entry, service vehicle operations, aisle widths and parking space widths. Holland will seek to prepare a revised layout plan to address these.”
That was followed by a more comprehensive “design” of 20 September 2005 incorporating a plan as foreshadowed, which provides for some of the Exhibit 19 changes. It should be recorded that the local residents anticipate traffic problems in the presently quiet back streets over and above those said to be caused by the use of them by petrol tankers servicing the Shell service station adjacent to the site. No-one suggests that traffic issues are inarguable. However, in the circumstances, it would be wrong for the court to embark on examining issues the parties do not wish to ventilate.
The experts’ conclave reports are part E of the Appeal Book, Exhibit 1. There is a joint report of Ms Bonwick and Mr McCracken relating to need issues, Mr McCracken supplementing his views set out therein with a further report responding to Ms Bonwick’s views. Mr Dillewaard of the Appellant and Mr O’Brien for the Respondent participated in a conclave of architects. They agreed that the proposed development will be dissimilar to the current character of the neighbourhood – whether detrimentally was a point of disagreement. Mr O’Brien considered that given its height (taken to be 17.6 metres to the roof balustrade height) the development would have an adverse impact on the character of the locality likely to develop under the Draft Planning Scheme. The report goes on : -
“John Dillewaard stated that, Under the definition of height in the Draft Planning Scheme, the height limit of 12 meters commences at podium level which can be a maximum of 1.5 meters above natural ground. Furthermore, the 12 metre height does not include roof spaces, so at a fairly standard pitched roof of 22 ½ o, it would not be unusual for the height above ground to be 17.5 metres at a building width of 19 metres. 19 metres is derived from a possible scenario of a development in the Residential C areas to the north. To redevelop, two or more sites will need to be amalgamated. This gives a minimum frontage of 30 meters and with appropriate setbacks a building width of 19 metres is probable.”
the conclusion being that the proposal would be “similar to that permitted under the Specific Outcomes of the Draft Planning Scheme.” The changes recorded in Exhibit 19 include some relating to the communal roof garden area expanding it and improving the facilities there, as recommended by the architects.
The remaining conclave, of town-planners, involved Mr Challoner for the Appellant and Mr Schomburgk for the Council, both of whom, like the architects and economists, gave evidence in defence of their reports (Exhibit 2 and Exhibit 14). They prepared the following conclave report: -
“Points of Agreement & Disagreement, and Reasons
· Both parties agreed that the building height was the major issue from a town planning viewpoint in this appeal. For example, if the proposal had sought a three storey, mixed use development, both parties agreed that the matter would not be contentious in town planning terms. Other issues (apart from height) were most likely to be capable of resolution by way of conditions of an approval.
· Mr Schomburgk expressed his opinion that a three storey building was the maximum height envisaged for this site, whereas Mr Challoner expressed his opinion that higher building (such as proposed) was consistent with the Planning Schemes and/or with other approvals in the locality.
· Mr Schomburgk expressed the view that the Planning Schemes (current and draft) sought to achieve a gradation of building height downwards radially outward from the Res D or Village core, and that this was a consistent theme throughout the Planning Schemes (not just for Clontarf). The subject proposal would conflict with this intention and would “stick out like a sore thumb”. Mr Challoner disagreed, and pointed to other recent approvals that already negated this intention, and noted the locational characteristics of this site that justified the additional height.
· Both parties agreed that “traffic” and “need” were not significant issues in this appeal and that each would defer to the respective experts in those fields. The issue of need, for example would come down to whether the extra three storeys of units (12 units) was needed.
· Mr Challoner expressed the view that the draft Planning Scheme boundary for the Clontarf Village Centre was inappropriate and should have included the subject site, using Laura St as the eastern boundary. The reasoning for this opinion included the existing service station and the Local Business zone on the subject site. Mr Schomburgk disagreed and expressed the view that the boundary as depicted on the draft Scheme was appropriate as it allowed for consistent streetscape (both sides of the street had the same provisions with respect to height). Mr Schomburgk added, however, that this decision (boundary location) would not change his opinion about height, because the subject site would be at the periphery of the Village and thus ought to retain the gradation of height envisaged in the Scheme.
· Mr Schomburgk expressed the view that the proposal would be out of character with the current and intended character for the locality, the majority of which was zoned Res C, which allowed only three storey buildings. Mr Challoner disagreed and pointed to other recent approvals in the locality that exceeded the three storeys.
· Mr Schomburgk pointed to the consistency of the Council’s planning approach based on the current planning scheme, the various DCPs that had been prepared since, the current Temporary Local Planning Instrument and the draft Planning Scheme – all of which pointed to a deliberate intention to maintain a gradation of height away from higher intensity cores throughout the City. Mr Challoner disagreed and again pointed to recent approvals that negated this view.
· Both parties agreed that the appeal, in a town planning sense, would concentrate on the issue of height. Both parties noted that there were a number of elements in the Planning Scheme/s that dealt with related issues of amenity and character, and these would be relevant to the debate about height.”
The assessment in the last dot point is correct.
Mr Houston, representing the Council, advised that the Redcliffe City Council Planning Scheme current when the development application was filed was originally gazetted in 1986. The version placed before the court as Exhibit 4 was “re-gazetted” as the Redcliffe Consolidated Planning Scheme 1996. Appendix “A” is the strategic plan; the associated map “showing basic infrastructure and preferred dominant land uses for the City” is restricted to eight uses. Substantial parts of each of Redcliffe, Scarborough, and Margate are special development. The predominant use (applicable in respect of most of Clontarf and the site in particular) is residential. The remaining uses are commercial, industrial, special purposes (particular use indicated by lettering), major open space (areas over 6.5 ha), fish habitat reserve, special development and employment areas. Red dots indicate commercial centres, which may be sub-regional, suburban, or local. One of them appears to lie in the triangular block formed by Elizabeth Street, Angus Street and the Esplanade. A typical block beyond Angus Street (north and east of it) runs Roland Street. “Typical” blocks are encountered to the north along Elizabeth Street, while on the Esplanade there is next a very long block to Young Street, a very short block to Thomas Street and a typical one to Laura Street, the first two-thirds being taken up by the Shell service station, the balance of the frontage by the site – whose “side street” frontage along Laura Street is about twice as long. Beyond Laura Street, along the Esplanade, are more typical blocks - the first to Yacht Street, the next to Maine Road. The entrances to the 7.585ha Pelican Park, on the sea side of the Esplanade are opposite Maine Road and Young Street.
The site is designated Bay Edge in DCP2 Open Space, which is of City-wide application, unlike other DCPs adopted for particular localities – none of which includes the site, although the proposal arguably conflicts with them, by incorporating higher-rise construction elsewhere than in the DCP areas where it is intended. DCP2 includes the following in 5.1.8(a)(ii):
“Council will require that development in or adjoining these areas does not obscure vistas and views of the foreshores and bays from the public realm. Development is also required to comply with the General Development Guidelines in section 6.0 of this DCP…”
Section 6.2.2 provides:
“Many streets in the City afford views and vistas of Moreton Bay, particularly those in or near the Bay Edge. Wherever possible, the Council will require new development on the streets to be designed to maximise the retention and enhancement of these views, for example by the progressive “stepping back” of development further away from the Bay Edge.”
I agree with Mr Schomburgk and Mr O’Brien that there is conflict with 6.2.2. This is essentially a height issue.
Notwithstanding the PDLU, the site is zoned local business, in common with the large triangular area already mentioned, one parcel (possibly two) facing the Esplanade across Angus Street and four parcels similarly facing accounting for the short block east of Maine Road. That catalogue overlooks a small parcel also coloured blue for local business in the zoning plan (Exhibit 5) apparently landlocked: the “overlooked” parcel is bounded by the site, the service station (zone special facilities) and Residential “C” parcels. This may or may not be a mistake, given that all other information before the court indicates the landlocked area is part of the service station. Apart from it, and a special facilities parcel at Maine Road, everything north, south, and east of the site is Residential “C”. The “long” block between Roland Street and Young Street bounded by the Esplanade on the south east and the parallel Lane Street is Residential “D”, likewise the parcel whose frontage takes up the whole of the “very short” block.
In the Residential zones, more intensive uses are permitted as one proceeds through the alphabet. Thus, in “B”, accommodation units, motels and multiple dwellings of one storey are permitted, a second storey coming under column IV - content uses. For “C” there is an increase of one storey in each instance. In “D” three storeys are permitted for each, while to a maximum of 25 metres, each is a consent use. The change to a limit measured in metres will be noted.
The court was told (and observations on the inspection on the first day of the hearing confirmed) that in the city of Redcliffe, the mezzanine has featured prominently. Mezzanine levels (as defined) are not treated as storeys. In the Local Business zone residential uses (other than a caretaker’s residence) are not permitted; accommodation units and motels are consent uses. The table of zones in the conventional manner of transitional planning schemes lists in column V prohibited uses as any uses other than those listed in the preceding columns. So, in Local Business, multiple dwellings and composite buildings are column V uses. There are definitions in Part 1 of the planning scheme: -
“Composite Building –
means any building which has a mixture of retail and/or commercial uses on the first and/or second storey in association with a residential use (whether one or more classes of residential use), on the remaining storeys providing that the residential use is situated above the ground storey.”
“Multiple Dwelling –
means any premises which comprises more than two dwelling units and intended for use as apartment houses, where such dwelling units are self contained. The term does not include an accommodation unit, caravan park, hotel, institution or respite care centre as herein defined.”
The existing zoning, the intent for which is: -
“…to provide for frequently used shopping, commercial and professional needs necessary for a residential neighbourhood located generally within a short walking distance of local residents in the community",
recognises the site’s present use; there are single-storey shops built up to both street frontages occupied by “a take-away food shop, hot-bread kitchen, sporting goods shop, veterinary surgery and kite/skateboard/kayak/wetsuit sales outlet” with car parking and a service area on the northern half of the site accessed from Laura Street. It is understandable that Mr Challoner sees the site as a focus for Pelican Park, although the shops at Maine Road may well serve the same function; they are more easily accessed across a signalized junction, while direct access at Laura Street is precluded by medium strip planted with a continuous hedge. The roof of the existing building is surrounded by a distinctive larger-than-life-size representation of a pelican.
Under the IPA, there are no prohibited uses, a use so categorised in a former planning scheme or transitional planning scheme being taken to be an expression of policy that the use is inconsistent with the intent of the relevant zone: s 6.1.2(3), s 6.1.9(3)(A). Under the IPA a proposal for such a use is impact-assessable; under the former legislation, a rezoning would have been necessary. While the planning scheme specifies no height limit in the Local Business zone, that is doubtless because multiple dwellings are not contemplated in that zone, as Mr Challoner volunteered. Every consideration would lead one to expect that the requirements of Part IV special requirements in relation to a particular development, specifically those in section 25-Multiple Dwellings performance objective, should apply. Subsection (6) is: -
“ (6) Amenity Requirements
(a) The Table of Zones and Table 5 hereto, specifies building heights in various zones.
(b) In considering any application to erect a multiple dwelling, the Council shall have regard to the following matters: -
(i) the existing and future amenity of the locality
(ii) whether the locality is suited to the proposed height of the building, having regard to the Council’s planning intent for the area and existing buildings and approvals;
(iii) the effect of shadowing on neighbouring properties;
(iv) the architectural merit of the building design;
(v) such other matters as the Council may consider to be relevant…
| 5. Maximum Building height Above Ground Level – Within Residential “B” zone | 2 Storeys |
…NB…
(3) Where the height is specified in metres, the maximum building height above ground level is to be measured from the mean original ground level within the planned building area to the highest point of the building being the highest point on any eaves, parapet, gable or like structure, but excluding any lift motor room or air conditioning and other machinery housed within the main roof structure…”
The foregoing indicates a three-storey limit should be applied. The site’s being surrounded by the Residential “C” zone makes that appropriate. Additional guidance may be found in the strategic plan itself (of significance given that the “conflict” dealt with by s 4.4.(5A) of the Local Government (Planning & Environment) Act 1990 relates to a strategic plan or DCP, rather than planning scheme provisions generally) in what is provided for “Implementation” of the goal or objective of identifying and allocating “Residential Land” : -
“ (a) Overall it is intended to progressively raise average residential density from 37.5 persons/hectare to 56 persons/ha by the year 2000 by taking the following action:
(i) Expanding opportunities for redevelopment in the older and weaker section of the City by introducing medium density multiple dwellings within the capacity of the existing public utilities services;
(ii) Introduce limited areas of low density multiple dwellings in future areas, however, it will be a requirement that such development is planned and developed as part of the land subdivision services;
(iii) Allow low density multiple dwellings in the existing established residential areas limited to those areas zoned Residential B,C,D or within an appropriate Development Control Plan precinct where such use does not adversely affect the use and enjoyment of other established residents.
(b) Any application for subdivision of land for residential purposes shall not be approved by the Council unless the land is flood-free, well drained and stable.
(c) Council shall require that all new residential land be fully serviced with reticulated water supply and a sewerage scheme and that the provision of other utility services controlled by statutory authorities be guaranteed.
(d) Applications for development for medium and high density multiple dwellings shall not be approved unless the land has good access for shopping, schools, parks and public transport.”
The Appellant relies on (a)(i). Mr Schomburgk suggests that while it is not always the case, in this planning scheme, height and density are treated as relatively synonymous, so that low density residential development will be expected in Residential “A” and “B” zones, medium density in the “C” zone, high density in “D” (and certain other zones such as General Business “B”, Special Business and potentially Comprehensive Development). I do not think that the appellant could have harboured any reasonable expectation of an approval for more than three storeys for its proposed composite building when the application was lodged; subject, of course, to some more favourable treatment resulting from exercising of a discretion. Without that, there is conflict with the three storey limit that I find applicable. Subsequent developments in planning arrangements, both existing and proposed, have strengthened height controls in the City of Redcliffe.
TEMPORARY LOCAL PLANNING INSTRUMENTS
Early in May 2004 the Council sent to the Department of Local Government & Planning for processing (which presumably ensued) proposed temporary local planning instrument 01/04. It provided that : -
“ The purpose of TLPI 01/04 (Height of Development) is to achieve outcomes for the City that reflect the Council’s and Community’s preference for certainty in the height of development in the urban environment.
The outcome sought for the height of development throughout the urban environment of the City is that the heights of development within certain zones and precincts do not exceed the intent of the zone or precinct in which they are located.
3. Effect of Temporary Local Planning Instrument 01/04 (Height of Development)
(1)TLPI01/04 (Height of Development) affects the operation of the transitional planning scheme for the City of Redcliffe by providing that where a maximum height is prescribed in storeys under the transitional planning scheme for the City of Redcliffe, development must not have a height more than -
(a) the prescribed height in storeys; and
(b) the corresponding height in metres prescribed in clauses 3(2) – 3(12) of this instrument.”
By 3(6), “On land zoned Local Business where the maximum height of development in the zone is specified as “3 habitable storeys above ground level”, the height must not exceed 12.0m.” A similar 12-metre limit was fixed in Residential “C” and “D”. Action was taken within the 12-months period allowed by the IPA for such an instrument to have effect to propose temporary local planning instrument 01/05 – Height of Development, in terms relevantly indistinguishable from its predecessor. It was gazetted on 6 May 2005.
DRAFT PLANNING SCHEME
Exhibit 7 is the current “draft” of the Redcliffe City Planning Scheme 2005 being prepared in accordance with the IPA. The procedures for its formal adoption set out in schedule 1 in the IPA are well advanced. The document is currently with State authorities for the second and final review of State interests. While it is possible that the draft may be changed, for example, if some conflict with the Southeast Regional Queensland Plan should be identified by State authorities, no reason has been placed before the court for thinking that the draft will not very shortly come into effect. The zoning plan (Exhibit 8) shows the site in the Mixed Residential zone, surrounded by parcels similarly zoned. That zoning is now shared by the shops at Maine Road and the service station. Indeed, disregarding Pelican Park, the only other zone provided for in the vicinity is medium density residential zone, corresponding with the former residential “D”. The triangle south of Angus Street is now Frame Business zone, which also brings in the large commercial site on the western side of Elizabeth Street.
The strategy map shows an extended area southeast to the Esplanade and north across Cornelius Street as one of the Urban Villages (Clontarf Gateway Village), the eastern boundary of which north of the Esplanade runs north/south down the middle of the block from Thomas Street to Laura Street - including the service station, but excluding the site. Pelican Park forms part of the village. See Exhibit 10. Exhibit 9 is the building heights plan incorporated in the draft. Exhibit 9 reads: “BUILDING HEIGHTS – Heights of buildings are indicated on the map in storeys. The height must also comply with the corresponding height in metres as indicated in the table below. Any areas on the map that are not indicated with a height in storeys are limited to a height of two storeys…” The table clearly shows the site coloured light green to indicate “Maximum Storeys – 3” and the “Maximum Height of Building in Metres – 12.” The same restrictions apply to all possibly relevant land east of Elizabeth Street (including the triangle), excluding only the Medium Density Residential (formally residential “D”) area and the single parcel immediately to the east of it across Young Street which are allocated maximum storeys of 3-6 and maximum heights of 12-21 metres. A note to the table provides that “the maximum building height can only be allowed when the relevant site area and its dimensions meet the requirements of the Planning Scheme.” Land west of Elizabeth Street (including the Clontarf Gateway Village areas) is limited to two storeys “except where an individual zone code varies this requirement.”
Mr Challoner hopefully isolated “18 strategies” of a total of 33 set out in section 1.2.2 of the strategic framework in the proposed new planning scheme, being: -
“City Image strategies –
(a) Retain the scenic routes, gateways, view corridors and coastal landscape character that make Redcliffe City unique
(c) The height of buildings and structures is limited to:
i. Enhance and protect the prevailing character of the City comprising of its bay side location, low to medium development and the scenic coastal landscapes; and
ii. Ensure that development has high standard of amenity and that the scale, form intensity of development is compatible and complimentary with the location.
Population Growth and Change strategies –
(a) Growth is accommodated in a manner that promotes economic vitality, protects environmental resources and preserves each neighbourhood’s environmental health (the interactions with the physical, chemical, biological, and social factors in the environment taking into account the precautionary principle), its unique character and sense of community.
(b) The form of developments is concentrated rather than linear. Urban villages are identified and located so that the existing relationship between intensity of residential uses and focus of public transport services can be better sustained.
(c) The height of buildings and structures is limited to ensure that the reasonable expectations of the existing and future residents of the City as to the future development in the City can be maintained.
Economic Development strategies
(a) Focus future growth of business, commercial, tourism, short-term accommodation employment generating uses within urban villages…
(d) Protect and enhance the unique Redcliffe coastal landscape in the context of advancement of economic development.
Residential Needs strategies
(a) Residential infill development supports use of public transport and is located within urban villages or within walking distance of urban villages.
(b) A choice of housing types at low, moderate and high densities enable residents from a wide range of economic circumstances and age groups to live in the City.
(c) The height of buildings and structures is limited to ensure that the range of housing types, facilities, services, services and community infrastructure reflects community need with medium density housing and community infrastructure located within urban villages where there is maximised transport efficiency, higher order facilities and amenities in public realm.
Urban Villages strategies
(a) The urban villages in Redcliffe City are the preferred location for major employment growth through business, retail, community uses, recreation, cultural facilities, government services, infrastructure and higher density residential uses.
(b) Plan for six urban villages. No additional urban villages or their associated retail role need to be planned in the City within the life of the IPA Planning Scheme.
(c) Consolidate appropriate and complimentary activities, including community uses in villages.
(d) Integrate urban design guidelines into assessment criteria that address the design, scale and intensity of buildings in bay side locations.
(e) Zone and control land uses and densities of development to support the patronage of public transport, walking and cycling as an alternative to private vehicle use.
(f) The height of buildings and structures is limited to ensure the medium density development is consolidated within the urban villages.
Community well-being strategies
(b) Locate community facilities in urban villages or in locations that are accessible to their users.
Transport strategies
(a) Encourage the use of public transport, walking and cycling through suitable local environments, residential densities; land use zoning; development control; provision of infrastructure, education and public transport routes that match demand.”
Contrary to his opinion that the proposal does not conflict with those strategies, I think that conflict arises: the emphasis placed on height limits in (c) in the first four groups and in (f) in the fifth is significant; height policies are increasingly strongly pursued in Redcliffe. Mr Schomburgk, in his report and evidence given for the Council, relied on the provisions numbered (c) and on (f) in the Urban Villages strategies, notwithstanding that the site is not directly affected by those strategies. It abuts the Clontarf Gateway Urban Village, which includes the adjacent service station site. That may be thought to give the strategies some relevance. Further, Mr Challoner mounted a persuasive argument that the site should have been included in the Village in light on its long established commercial function and its being a focus for Pelican Park (including as somewhere where users could make purchases of food and other items), the park itself clearly being envisaged as an important facility of the Village. There is an accepted planning practice which, of course, admits of exceptions, that boundaries of the kind being considered appropriately follow rear boundaries of land parcels, to produce consistency of streetscapes. Acceptance of Mr Challoner’s argument would suggest that the boundary of the Village could, perhaps should, have been placed so as to include the Maine Road shops. It was for the Council, as planning authority, to fix the boundary. Conceivably, a local government’s determination of such a boundary might strike the court as insupportable. That is not the situation here.
Looking further at the draft plan, one finds that, as Mr Schomburgk says, “the planning intentions of the transitional planning scheme remain, and are sought to be reinforced in this new scheme.” Most particularly, the intention “to limit higher building heights to sites within the designated Urban Villages is clear.” He identifies strong supporting statements in Desired Environment Outcomes, particularly “M”: -
“development … in the planning scheme area… is of a scale, form and intensity intended for the location in which the development is located and is only developed at a greater scale, form and intensity where there is both an overwhelming community need and an overwhelming economic need for the development”.
If there is any community need or economic need for a development exceeding the three-storey benchmark in the location, it could not possibly be regarded as “overwhelming”. The draft plan includes a City-wide code identifying Overall Outcomes in section 3.2.2, following the DEOs in 3.1. Urban Villages are given particular attention in (2)(c): -
“ i) The function of the urban villages in supporting a mix of uses including convenience retail, a range of housing styles and employment opportunities is suitable for the scale, location and role of the individual urban village without adversely affecting the function of other urban villages.
ii) Urban Villages have attractive, interesting, vibrant, comfortable and accessible streets, public places, open spaces, active shopfronts and streetscapes with visual interest and public safety.
iii) Urban Villages create a sense of place and identity for its residents.
iv) The identity and attractiveness of the urban village is enhanced by a high standard of design, landscaping and streetscape works.
v) Urban villages foster community interaction.”
Mr Schomburgk has abstracted from Overall Outcomes (A) provisions indicating the importance of other development’s supporting the urban villages: -
“5.4.10 Of relevance in this appeal are the following Overall Outcomes:
A iii) development supports the role and function of the urban villages … with commercial development outside of these areas not detracting from economic viability of the urban villages …;
A vi) development contributes positively to the amenity of the locality and does not cause adverse affects (sic) at levels beyond those commonly accepted for the adjoining use or zone by emission of … noise, odour…;
A vii) the social impacts of development are positive through maintaining and enhancing the amenity…;
A xiv) development is designed to mitigate its impact on adjacent zones and land uses;
A xv) development is of a scale and form which:
a) enhances the amenity and attractiveness of the zone and preferred land use area in which the development is located;
b) protects and enhances the City’s scenic landscapes, bayside location and low to medium density development;
c) supports the preferred pattern of development for the City where medium urban villages, low density development is located within residential areas…”
(his emphasis)
Turning to the Draft Planning Scheme statement of Overall Outcomes for the Mixed Residential Zone in s 4.2.6(2), it is convenient to pick up Mr Schomburgk’s selection of provisions and his emphasis:
“A). The Mixed Residential Zone provides a diversity of styles and types of dwellings.
B). The Mixed Residential Zone has a character where low rise multiple dwellings and a range of compatible housing forms are predominant.
C). Development is designed to integrate with existing and planned development in the Mixed Residential Zone.
D). Development is designed and constructed to protect and enhance the existing and planned amenity and character of the Mixed Residential Zone.
E). Development is of a scale and form which is intended for development in the Low Density Residential zone and Preferred Use Area.
F). Development is consistent with the reasonable expectations of residents of the Mixed Residential Zone especially in relation to the scale and form of development which is intended for the Mixed Residential Zone.
G). Development for an inconsistent use is not developed in the Mixed Residential Zone and is consolidated in the zone and Preferred Use Area intended for the development.
H). Development for an inconsistent use is only developed in the Mixed Residential Zone if:
i) The character, location, siting, bulk, scale, shape, size, height, density, design and external appearance of the development accords with the reasonable expectations of residents of the zone and preferred use area; and
ii) The development has a positive impact on the landscape, scenic amenity and streetscape of the zone and preferred use area; and
iii) The development does not detract from the amenity, character and environmental quality of the zone and preferred use area; and
iv) The development does not generate greater traffic movements or hazards than is reasonably expected in the zone;
(a) Parking areas on the premises and off the premises; or
(b) The number or type of vehicle movement; or
(c) The manner of access and manoeuvring to the development; and
…
xii) The development does not generate negative community impact including impacts on:
(a) Community identity, cohesion and cultural practices; and
(b) Community health and well being; and
(c) Access to community services and facilities required to support the needs of the community; and
(d) Personal safety; and
(e) Proper security; and
(f) Housing choice, mix, cost and location; and
(g) Access to employment and education; and
xiii) The development does not generate adverse economic impacts on existing or planned facilities or services.
I). The Mixed Residential Zone provides community services that support local residents’ needs.
J). The Mixed Residential Zone provides businesses and shops that support existing local commercial centres and offer services to local residents only.”
Finally, there should be noted from 3.2.3(1)(a) assessment criteria for assessable development, certain of the Specific Outcomes, which apply generally to the whole city:
“1 Economy
SO2 Convenience retailing and comparison retailing or shopping with floor areas over 200m2 are located in urban villages or in Preferred Use Area 12 of the Frame Business Zone when located outside an urban village.
SO4 Retail development outside urban villages, the employment node or a Frame Business Zone is a maximum of 200m2 and does not adversely affect the commercial viability of existing business areas.
4 Amenity
SO10 Development mitigates adverse impacts on adjoining zones and existing land uses.
10 Urban Design
SO31 The height of buildings is in keeping with the character, amenity and location in the City.
SO32 Development is of a scale and form which:
a) enhances the existing and planned amenity, environment and cultural contexts of the zone and preferred use area in which the development is located by ensuring that the development:
(i) integrates with the existing and planned development in the zone and preferred use area;
(ii) is of a human scale;
(iii) protects existing and planned buildings that contribute to the City’s character;
(iv) is sympathetic to the existing and planned character of the zone and preferred use area;
(v) is designed so that residents and visitors can easily find their way around the City;
(vi) does not result in the intrusion of an inconsistent use into the zone and preferred use area; and
(vii) creates a place with a distinctive character and a feeling of belonging; and
b) protects the existing and planned character of the zone and preferred use area in which the development is located by ensuring that:
(i) landscapes that enhance the amenity and character of the scenic coastal landscapes, bayside location and urban villages are protected;
(ii) significant views of important natural and cultural character elements as seen from public use areas, the coast and the transport infrastructure network including roads, cycleways and pathways, are protected;
(iii) the visual boundaries between zones and preferred use areas is established and maintained;
(iv) the development is buffered and screened to separate visually incompatible development; and
(v) the development complements the surrounding character and style of surrounding buildings and structure in the zone and preferred use area; and
c) supports the preferred pattern of development for the zone and preferred use area by:
(i) maintaining consistency with the intended scale and form of development in the zone and preferred use area and the consequential infrastructure and development commitments;
(ii) supporting more compact urban villages and the employment node;
(iii) locating community infrastructure with medium density development in urban villages…”
Mr Dillewaard and Mr O’Brien had much to contribute regarding SO32. As noted, their opinions were to opposite effect. The former’s photo montages, with anticipated developments (including the proposal) superimposed, show the pushing out of the edge of medium-rise development – not necessarily unsightly, but at odds with what is intended. It amounts to a new kind of strip development extending along the Esplanade.
Mr Challoner (paragraph 5.3) thought it appropriate that considerable weight be given to the Draft Planning Scheme (although not necessarily to its performance standards, several of which have been identified by the Respondent as being in conflict with the proposal). As he says, “The proposed scheme presents the same issues in relation to the height of the building.” The Appellant is entitled to have applied the law as it stood at the time of its application. It should not be disadvantaged by the now imminent change in planning arrangements. That change does nothing to make the proposal more acceptable. It is appropriate, in the circumstances, to confine attention to the current planning scheme. The problem for the Appellant is the clear planning intention in Redcliffe (reinforced by subsequent changes) that the city be developed with a low-rise character, which is to be preserved generally, in order to provide demarcation of the high-rise precincts – “urban villages”. The Appellant’s proposal will compromise this by a significant eastwards movement of the higher-rise part of Clontarf. Its primary position is that the clause 34 discretion should be exercised:
“In this case the circumstances justify the exercise of the discretion. The extent to which the building exceeds 12 metres or 13.5 metres in height is well within the range within which adjoining buildings, compliant with height controls, might differ in height. None of the matters listed in clause 34 militates against a relaxation. The building is in a non-residential zone. The ground floor is intended to be used for retail purposes. The topography of the land is not particularly significant. The land adjoins land in a Special Facilities zone used as a service station and land in the Residential C zone developed with a 2 storey townhouse use. Opposite the land is Pelican Park, a community focal point. The amenity and future amenity of the area is not adversely affected by the proposal.”
In my opinion, the assertion in the final sentence does not sit comfortably with the low-rise future intended for the site and its surrounds. The planning authority’s deliberate decisions in this regard deserve respect. It might be noted that in the authority principally relied on, of Ambrose, the appellant’s success did not involve any dramatic change. They were permitted to subdivide existing rural lots which were uneconomic as living areas into two lots of 40 acres or thereabouts, which was characteristic of the subdivision patterns in the immediate locality. Here, no case is shown for the court to exercise the clause 34 discretion to permit a six storey development, which will change the character of the area.
PLANNING GROUNDS
Although the Appellant’s position is that there is no conflict with relevant planning instruments, its case includes material suggestive of planning grounds to justify approval under s 4.4(5A) of the Local Government (Planning and Environment) Act 1990, which is rendered applicable by ss 6.1.29 and 6.1.30 of the IPA. The conflict in respect of the extent of the proposed retail area (excess of 75m2 or thereabouts) may readily be excused; it will continue retail activity on the site which has been important and useful over an area similar to that previously so used. Any difficulties about a composite building are similarly easy to excuse. There is conflict within s 4.4(5A)(a) in relation to height. I have taken the liberty of extracting from p 18 ff of Exhibit 2 (and assigning numbers to) passages which appear to comprehend any “planning grounds” that might be relied on, although Mr Challoner does not call them that:
i) The subject site adjoins the designated Clontarf Gateway Village … It [is] appropriate that the site should be regarded as part of it.
ii) The site is strategically located opposite to the entrance to Pelican Park and has a strong sense of place, focus and identity. Arguably it is a more significant focus for the Clontarf area than the business centre.
iii) Buildings of eight and nine storeys have already been approved on the Triangle, [and the Residential D area, where more such approvals are likely].
iv) The additional storeys will give the building added prominence in keeping with its function as a service centre for Pelican Park and the immediately surrounding area…
v) Policies 8.2.1, 8.2.3 and 8.2.4 of the regional plan encourage the efficient use of urban areas…
vi) The current strategic plan seeks a progressive increase in average residential density as well as the expansion of opportunities for redevelopment in the older and weaker area of the city as required by Section 3(1)(a)(i)…
vii) The proposal is within the capacity of the existing public utility services…
viii) The site has good access…
ix) The proposal is in accord with the … goal to enhance and maintain a pleasant and distinctive urban environment and seeks to improve visual amenity and maintain the identity of the existing and future urban area…
x) The proposal is in accord with the associated implementation provision which seeks to ensure the amenity of residential areas…
xi) The proposal is in general accord with the provisions relating to multiple dwelling …
xii) The proposal is in general accord with the provisions relating to car parking…
xiii) Need (per Ms Bonwick).
Mr Dillewaard expanded considerably upon (ix), stressing the importance of variety in a streetscape, in building heights in particular. This may be thought a matter of taste in specific locations! The proposal’s contribution would be to add variety by being taller than anything else. I would not accept this as a planning ground where planning arrangements so clearly are designed to limit maximum heights.
ECONOMIC EVIDENCE
Need is not a great consideration. To the extent that Ms Bonwick shows a need or demand in the market for a choice of units like those proposed, in this location, that need or demand is addressed, whether there be two floors of units or five. The proposal is too small to have much influence in any event. While there may well be other explanations for the failure of developers to take up the approvals relied on by Mr Challoner as examples of developments similar to that proposed (if not as precedents), this situation places a question mark over assertions of need.
ARCHITECTURE
Elevations depicting the proposal do not do justice to Mr Dillewaard’s design, which incorporates much more articulation than the elevations reveal. They show a six-storey building. I accept Mr O’Brien’s evidence that, although the storeys are of minimum height, as opposed to, say, three metres, which is often adopted to give a more spacious interior, the building would be assessed by people (and they would react to it) by reference to the number of storeys, rather than by reference to its height. His analysis in Exhibit 21 showed convincingly that while there may be little difference in maximum heights in metres between the proposal and other approved “three-storey” developments incorporating mezzanines, the extent of built form above relevant benchmark levels (12 metres or 13.5 metres where the possibility of a podium 1.5 metres above the ground is availed of), which will be solid and continuous in this proposal, means that the visual impact of the proposal will be of something much bulkier.
Most of Mr Challoner’s points (numbered above) simply assert that the proposal does no harm – which, in my opinion, is not a planning ground. Nor am I persuaded in the present circumstances that consistency with various regional or local provisions can be regarded as constituting a planning ground. The asserted benefits would be provided just as well by a building limited to three storeys. I cannot understand why functions connected with Pelican Park, to take one example, all to be carried out at ground level, justify bonus storeys of accommodation on top. Except to the extent that the South East Queensland Regional Plan expressly overrides local planning scheme provisions bearing on density, I do not think that it can be relied on to set at nought density as like controls deliberately adopted by the planning authority.
In summary, there are no sufficient planning grounds to justify approval of the Appellant’s proposal while it remains at six storeys.
Without meaning to be critical, I detected a certain coyness in the Appellant’s approach in the use made of exiting and anticipated approvals of taller buildings in the locality. Mr Challoner notes:
“Within the last few years, four composite buildings/multiple dwellings of eight or nine storeys have been approved on sites fronting the Hornibrook Esplanade frontage of what the proposed new planning scheme designates as the Clontarf Gateway Village (see Figure 4). In addition, applications are currently before the Council seeking approval to erect a further four buildings of similar height on sites fronting this section of Hornibrook Esplanade. It is to be expected that they will be approved. The eight sites concerned are identified in Figure 10.
Five of these sites are within the current Residential “D” zone in which the maximum building height is 25 metres. Three, like the subject site, are within the Local Business zones in which buildings are allowed to be erected up to four storeys in height/12m. (see paras 4.5.2 and 4.6 herein).
As these developments proceed, the esplanade streetscape of Clontarf Gateway Village will change dramatically and it is within the context of that changed streetscape that the proposal should be assessed. In so far as the subject site adjoins the designated Clontarf Gateway Village area and is presently included in the Local Business zone, I think it appropriate that the site should be regarded as part of it (see comment in para 4.7.2 herein).
The triangular area bounded by Hornibrook Esplanade, Elizabeth Avenue and Angus Street (“the Triangle”) lies at the western end of the esplanade frontage. It is the subject of three high rise proposals and is included in the Local Business Zone. The subject site lies at the eastern end of the frontage and is also included in the Local Business Zone. In between there are proposals to erect four similar buildings on sites in the Residential “D” zone.”
Any assertion that the planning scheme in relation to this area had been overtaken by events was disavowed. One of the approvals relied on came about by the Court’s decision in Peninsula Property Traders Pty Ltd v Redcliffe City Council [2004] QPEC 077. This was a successful developer appeal against the Council’s refusal of a development application for a material change of use to permit a composite building of eight storeys and 25 metres containing 42 residential units on seven levels above retail and commercial uses at ground level and a car park partly below ground. The 2,227m2 site, zoned Local Business, was at the corner of Hornibrook Esplanade and Angus Street and formed the eastern corner of the triangle they make with Elizabeth Street. The matter attracted attention in this appeal as an existing approval for a composite building of that height in the vicinity of the site which will have a certain impact on the character of the area if actually developed. Sufficient planning grounds were shown to justify approval notwithstanding conflict with the Strategic Plan (use as a composite building contrary to the intent of the zone which was “purely commercial in nature”). Following lodgement of Peninsula Property Traders’ development application, the Temporary Local Planning Instrument gazetted on 7 May 2004 provided that “Where the height of development is described in storeys in respect of development in various zones, a further requirement is imposed that the height of development must also not exceed a specified height expressed in metres” – to quote paragraph [34] of the reasons. Judge McLauchlan QC noted the approval by the Council in March 2001 of a nine-storey composite building at the southern “corner site” (i.e. Hornibrook Esplanade and Elizabeth Street) and a roughly contemporaneous approval of a shopping centre development on Residential “B” land across Elizabeth Street. Both approvals were seen as in direct conflict with the Strategic Plan – a shopping development in a Residential zone and a predominantly residential one in the Local Business zone. The appeal was not regarded by his Honour as one about height; any policy that Council may have had about height had been “compromised or undermined” by the corner site approval. The Building Heights Plan under consideration as part of the draft IPA planning scheme was regarded as attracting minimal weight as (in 2004) it was “largely a matter of speculation” what would come of it: it was significant that the draft acknowledged the “new” uses. The Strategic Plan was held to have been overtaken by time and events.
The present Appellant did not contend that Peninsula Property Traders indicated a similar observation could be made about its site at Laura Street. In Jones v Redcliffe City Council [2004] QPELR 275, the planning instruments had been “overtaken” in the same way, essentially because the State Government disposed of land in the designated government precinct: that is no indication of a similar state of affairs in relation to this site.
Some support was said to come from paragraph [23] of Judge McLauchlan’s reasons, for the proposition that Clontarf could be described as “an older and weaker section of the City”, which he said was “not hotly disputed.” Here, it has been. Council argues that the “older and weaker” areas are those for which a DCP was adopted: Redcliffe, Scarborough and Margate. There was a proposal for a Clontarf DCP, never put into effect. The significance of the description appears in [15] above. It was the “high level of vacancies in the commercial centre” which indicated weakness. Mr Houston, for the Council, referred to historical material in challenging Mr Challoner here. Without going to that, the more basic Pre-Planning Analysis & Preliminary Report for the Strategic Plan (April 1983, Exhibit 6) supports Mr Houston’s argument. Presumably it shows the thinking underlying the Strategic Plan which followed soon afterwards. Pejorative comments are made at:
(a) p 35 about “introduction of multiple dwellings as replacements for the older and poorer quality dwellings” in Scarborough;
(b) p 36 about “the age and condition of the existing single-unit dwellings…(suggesting) considerable potential for the establishment of multiple dwellings” in Redcliffe; and
(c) p 37, where, in relation to Margate, group housing by the Queensland Housing Commission was expected in zone 7 and in zone 8, redevelopment for multiple dwellings was already occurring, and would continue, the area available for redevelopment being extensive.
Clontarf was treated in a different way:
“Residential development occurring in the zone has been predominantly detached single unit dwellings. Approximately 275 occupied dwelling units of this form have been added to the occupied dwelling stock making a total of 2,388 available as at 1st July, 1981. Some further potential exists for in-filling of vacant land in both sub-zones 6A and 6B as well as limited potential for re-development for multiple dwellings within sub-zone 6A.
Notwithstanding the foreshore location of the zone, the attraction rating of the area is poor due to eroded foreshores with restricted access, exposure to weather and low visual qualities.
The abovementioned factors have retarded the rate of re-development in sub-zone 6A and the introduction of multiple dwellings along the foreshore has been slow (notwithstanding that there is considerable potential for re-development). Future growth of multiple dwellings will probably arise when improvement of the foreshores is undertaken and population growth produces demand for dwelling units. The balance of the sub-zone is expected to retain a detached single unit family dwelling house form.
In-filling of vacant land in sub-zone 6B is expected to be completed by 1990 with very little potential for further residential development due to the areas of land set aside for industry and recreation use and large areas of low lying land. All residential development in sub-zone 6B is expected to maintain detached single unit dwelling form.”
The foregoing may or may not describe an “older and weaker” area. I am not persuaded that Clontarf qualifies for the fillip or boost contemplated in the implementation criterion (a)(i) if that comes in the form of a six storey development.
There is no suggestion here that overriding conflict with relevant planning instruments will produce benefit by the development of some desired or needed facility that would otherwise be unavailable in Redcliffe generally, or in Clontarf, particularly. There are no sufficient (in my opinion there are not any) planning grounds for purposes of overcoming the conflict which s 4.4(5A) enacts should lead to the development application’s being refused. The appeal should be dismissed.
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