Peninsula Property Traders Pty Ltd v Redcliffe City Council
[2004] QPEC 77
•24 November, 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Peninsula Property Traders Pty Ltd v. Redcliffe City Council [2004] QPEC 077
PARTIES:
PENINSULA PROPERTY TRADERS PTY LTD (Appellant)
v
REDCLIFFE CITY COUNCIL (Respondent)
FILE NO/S:
BD865 OF 2004
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court Brisbane
DELIVERED ON:
24 November, 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
20-22 September, 2004
JUDGE:
McLauchlan QC DCJ
ORDER:
Appeal allowed; application approved subject to conditions
CATCHWORDS:
Material Change of Use - conflict with Transitional Planning Scheme including Strategic Plan – whether sufficient planning grounds to justify approving application – whether Strategic plan overtaken by time and events-Council policy – draft IPA Plan
Grosser v Gold Coast City Council (2001) 117 LGERA 153
Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224
Playfaire v Maroochy Shire Council (1991) QPLR 87
Vynotas Pty Ltd v Brisbane City Council (2001) 117 LGERA 206
Weightman v Gold Coast City Council (2002) 121 LGERA 161
COUNSEL:
Mr Hughes SC for the appellant; Mr Ure for the respondent
SOLICITORS:
Sciaccas Lawyers for the appellant; MacDonnells for the respondent
This is an appeal by Peninsula Property Traders Pty Ltd against the refusal by the Redcliffe City Council of a development application for a material change of use of premises for a composite building of 8 storeys and 25 metres in height, containing 7 residential levels (42 units) on top of retail and commercial uses at ground level, and a partly below ground level carpark. The property is at the corner of Hornibrook Esplanade and Angus Street, Clontarf. The area of the land is 2,227 square metres, and the land is currently used for the purpose of retail shops, and associated parking, and a show room.
The application was made to Council in April 2003. It was advertised on 29 October 2003 and the closing date of submissions was 19 November 2003. As a result there was one adverse public submission. On 4 February 2004 the respondent Council resolved to refuse the application and the appellant was notified, by letter dated 5 February 2004, of that decision.
The site is located to the south of the intersection of Angus Street and Hornibrook Esplanade, Clontarf, having a frontage to Angus Street of 73 metres and a frontage to Hornibrook Esplanade of 30.5 metres. It is in the north-eastern corner of an area of land roughly triangular in shape bounded by Angus Street to the north, Hornibrook Esplanade to the east, and Elizabeth Avenue to the west. The topography of the site and surrounding area is generally flat.
The adjacent development, which has frontages to Angus Street, Elizabeth Avenue and Hornibrook Esplanade, contains a local shopping centre of about 1800 square metres containing an Action Supermarket, a liquor outlet and other tenancies, some of which are presently vacant.
At the intersection of Elizabeth Avenue and Hornibrook Esplanade there is a vacant allotment, which, at the date of hearing, had been excavated and prepared for building work with some footings in place. It is unclear whether, and to what extent, building work is currently being undertaken on this site. The allotment is the subject of a development approval for a composite building containing 16 dwelling units, together with some retail and commercial floor space at ground level, and there is evidence of an intention to complete the development by March 2005, when the currency period for the development approval expires.
The disputed issues in the appeal were identified as the respondent’s grounds of refusal set out in its decision notice dated 5 February 2004, and the issues raised in the Notice of Appeal. However the appeal proceeded on the basis that there was no issue with respect to the provision of the proposed retail and commercial development on the subject land, but only with respect to the 7 storey residential tower proposed to be situated on top of that development. The issues agitated in the appeal were:
(i) conflict with the Strategic Plan;
(ii) whether planning grounds exist to warrant approval despite conflict with the Strategic Plan designation;
(iii) conflict with the provisions of the 1996 Planning Scheme as they relate to the local business zone;
(iv) whether the building is out of character with its surroundings as a consequence of its height and bulk;
(v) whether appropriate circumstances exist to warrant relaxation of some of the development standards, i.e.,
(a) site cover above two storeys which is in excess of 35%;
(b) six metre setback to street frontages; and
(c) provision of recreation space
(vi) the relevance and effect of the draft IPA scheme.
The matters of site cover and provision of recreation space were not pursued by the town planner called for the respondent.
The respondent’s Consolidated Planning Scheme 1996 is a transitional planning scheme, so that by virtue of s.6.1.30 IPA the provisions of s.4.4(5A) are applicable in deciding the application, and hence the appeal. That subsection 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.”
The transitional planning scheme is applicable (under s.6.1.29) in assessing applications, but, (except for a relevant strategic plan and development control plan which are the subject of s.4.4(5A)) not in deciding them. It is clear from s. 6.1.2 IPA that the transitional planning scheme continues to have effect in an application made under IPA for a material change of use, with the proviso that a prohibited use in a former planning scheme is now taken to be an expression of policy that the use is inconsistent with the intent of the relevant zone. This marks the shift from rezoning to impact assessment, and confirms that council policy, as expressed in the transitional planning scheme, remains important in an application for a material change of use: see Grosser v Gold Coast City Council (2001) 117 LGER 153; Weightman v Gold Coast City Council (2002) 121 LGERA 161; Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206. The result appears to be that such an application can be approved, on sufficient grounds being shown, notwithstanding conflict with the intent of the planning scheme, except where the conflict is with any relevant strategic plan or development control plan, and there are not sufficient planning grounds to justify approving the application despite the conflict. (Under the P&E Act conflict with the zoning provisions of the planning scheme was no bar to success, because a rezoning application assumed such a conflict, but it was, of course, necessary to establish sufficient planning grounds to justify approving the application despite that conflict.)
In the present case the proposal is for the construction of a composite building for retail and commercial development at ground level and for a “multiple dwelling” above ground floor level.
“Composite building” is defined to mean:
“….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.”
The expression “multiple dwelling” is defined to mean:
“….any premises which comprises more than two dwelling units and intended for use as apartment houses, condominiums, flats, home units, row houses or terrace 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 land is zoned “local business” in the Planning Scheme. The intent of that zone is as follows:
“… 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.”
The Table of Zones shows that for the “local business” zone, residential uses are not permitted uses or permitted uses subject to conditions; nor are they consent uses except in the case of accommodation units and motels, neither of which is applicable in the present case. The use of the site as a composite building is a Column V use, and in terms of the scheme is a prohibited use, so that it is taken to be contrary to the intent of the zone. There is no doubt, in my opinion, that the use applied for is contrary to the intent of the Local Business Zone in which the site is located.
Part IV of the Planning Scheme deals with “special requirements in relation to particular development”. In relation to accommodation units and motels, there is provision for a maximum building height of three habitable storeys above ground level in the Local Business Zone. Table 5 in Part IV stipulates maximum building heights above ground level in the case of multiple dwellings within various zones, not including the Local Business Zone. Within the Residential “B” Zone, the height is expressed to be two storeys. Within the Residential “C” zone it is 3 storeys. Within the Residential “D” Zone, it is expressed to be 25 metres, as it is within General Business “B” Zone. Within Special Business Zone, the height is 30 metres, and within the Comprehensive Development Zone the height is as specified in the relevant Development Control Plan or Local Area Plan. It is urged by the appellant that the restriction on building height in the case of multiple dwellings is confined to the zones mentioned, so that there was intended to be no restriction upon the height of a multiple dwelling in the Local Business Zone. However, I accept the submission on the part of the respondent, that since a multiple dwelling is expressed to be a prohibited use in the Local Business Zone, it would have been illogical for the respondent at the same time to specify a maximum building height for such a development in that zone. It is, on the other hand, argued by the respondent that since by virtue of Table 3 the maximum building height for accommodation units and motels in the Local Business Zone is 3 habitable storeys above ground level, the respondent should be taken to have intended that no type of residential use would be permitted within the zone at a height which exceeds that limitation. However, I consider that for the reason I expressed above, the height of a multiple dwelling in a Local Business Zone was something as to which the respondent made no provision and as to which it could not have been expected to make any provision. The issue of height with respect to a multiple dwelling in the Local Business Zone is something which could conveniently have been dealt with on the rezoning application which would formerly have been required. Of course, in dealing with an application which is impact assessable, as this one is, it is material to consider the height of the proposed development in relation to other matters, including the height of other structures in the vicinity.
I conclude, then, that the proposed development is contrary to the intent of the transitional planning scheme in the zone in which it is located, and that no provision of the scheme specifically or by implication regulates the height of such a development within that zone.
The Strategic Plan contains “an overall map of the City of Redcliffe showing basic infrastructure and preferred dominant land uses for the city” and a statement of the goals and objectives of the Redcliffe City Council in respect of the preferred dominant land uses for the progressive development of lands within the city. As part of the introductory remarks the following passages occur:
“The Strategic Plan represents a total commitment of all suitable physical land resources to urban development purposes within the City of Redcliffe, and consequently the total population of 80,300 is a projected optimum. On current trends, the projected growth in population would reach 80,300 soon after the Year 2000. This factor is recognised as the dominant feature of the future growth limitation on the City of Redcliffe.
Basically, the Strategic Plan provides for an expanded urban area to the west and northwest of the existing urban area having regard to the various physical restraints on development and urban consolidation of the existing urban area within the limitations of services, established character and landscape conservation of the City of Redcliffe.”
Table A states the preferred land use with respect to various parts of the city as indicated on the map. There is, in the vicinity of the site and the triangular area of land of which it forms part, an indication of a local commercial centre. The use indicated in respect of that in the table is:
“A centre providing basis (sic) goods and services for the local needs of a residential neighbourhood.”
The precise location of the indicative symbol on the map does not make it entirely clear that it applies to the site and the triangular area of land of which it forms part. Mr Brown, a town planner for the respondent, said in his report on this question:
“The southernmost designation of a ‘local commercial centre’ on the Strategic Plan map can only sensibly be regarded (in my opinion) as applying to this site, given the Local Business Zoning of the land bounded by Angus Street, Hornibrook Esplanade, and Elizabeth Avenue.”
I think counsel for the appellant is correct when he submits that “at least some degree of imagination is necessary in that regard”. However, it would seem incongruous if the local commercial centre indicated was to the north of that area, having regard to the purposes for which that land has for some time been devoted. It is also, I think, relevant that on Development Control Plan No. 2 the area in question is fairly plainly indicated to be an “existing commercial area” although the Development Control Plan is careful to state that designation of such centres in the plan is descriptive only, and does not infer (sic) any use, rights, roles or functions other than those indicated elsewhere in the Redcliffe City Planning Scheme. For present purposes I think that the Development Control Plan can be looked at in order to support the conclusion that the ‘local commercial centre’ on the Strategic Plan map is in fact the triangular area of land referred to above of which the subject site forms a part.
The planning documents of the respondent are not expressed with the consistency and accuracy one would like. For example Table A indicates that residential areas are coloured pink on the map. This is not so in fact. There are various inconsistencies and incongruities in parts of the Planning Scheme but I accept that these documents are to be read and construed to give effect to an obvious intention, even if clumsily or misleadingly expressed. I think then, that the local commercial centre on the Strategic Plan map refers to an area including the triangular piece of land which I have referred to, and including the subject site. That conclusion is not, in the end, contested by the appellant.
It is urged, in effect, that the passage from the introductory part of the Strategic Plan quoted above shows an intention to allow or encourage urban development, including residential development, in suitable physical locations, regardless of the provisions of the Strategic Plan map and Table A. I do not accept that contention. I think that the position is rather that the table and the map represent the commitment stated in the passage.
The Strategic Plan in section 3 states an “Allocation of Land Use Goal” which is to provide for consolidation of the major urban land uses having regard for the capacity of the physical environment and the social and economic wellbeing of the community. There are then stated various objectives and implementation provisions. No objective or implementation provision is stated in respect of local commercial centres or other commercial centres. In relation to commercial land which is a separate use category on the Strategic Plan map, the objective is to establish a range and distribution of shopping and commercial facilities sufficient in size and function to service the community. The implementation provisions include:
“(a) Overall the size and extent of existing centres are sufficient to maintain the future demands likely to be placed upon them and Council will limit adjustment of the existing defined commercial areas only on the basis of rationalization of goods and services.”
I do not think, in view of the provisions of Table A and the contents of the Strategic Plan Map, that that objective or implementation provision has any application to a “local commercial centre”. Reliance is also placed by the appellant upon the Residential Land objective and implementation provisions. The objective is to:
“… identify and allocate all land suitable for development or re-development and which is capable of fulfilling the primary requirement of residential usage.”
The implementation provisions to which attention is directed are principally para (a)(i), and para. (d). These read as follows:
“(a) Overall it is intended to progressively raise average residential density from 37.5 persons/hectare to 56 persons/hectare (net) by the year 2000 by taking the following action:
(i) expanding opportunities for re-development in the older and weaker section of the City by introducing medium density multiple dwellings within the capacity of the existing public utilities services.”
“(d) Applications for development of medium and high density multiple dwellings shall not be approved unless the land has good access for shopping, schools, parks and public transport.”
It is not hotly disputed that Clontarf may be described as an older and weaker section of the city, particularly having regard to the high level of vacancies in the commercial centre in which the subject site is located. Nor is it in dispute that the site has good access for shopping, schools, parks and public transport. However, in my opinion, it is plain enough that this objective, and the implementation provisions referred to, are concerned with the development of land for residential purposes within the areas selected as residential on the Strategic Plan map. These areas do not include the aforesaid commercial centre which, in my view, corresponds with the area zoned for local business in the Transitional Planning Scheme.
In my view, the Strategic Plan is clearly in conflict with the proposed development. The preferred dominant use for the site is as part of a centre providing basic goods and services for the local needs of a residential neighbourhood. In my opinion, the use thus nominated is purely commercial in nature and cannot be read as including a residential use. Column 3 of Table A states “dominant and supporting uses”. In some cases both dominant and supporting uses are given in respect of the preferred dominant land use relevantly stated in Column 1 of the table. For example, the dominant and supporting uses stated in respect of suburban commercial centres are:
“Secondary centres providing for district needs of surrounding community supported by tourist, entertainment and accommodation facilities in particular locations.”
The statement of uses in relation to a local commercial centre, which has already been referred, to provides nothing at all with respect to supporting uses.
In addition to the Transitional Planning Scheme and the Strategic Plan, it is necessary to consider two further instruments, a draft IPA Planning Scheme and a Temporary Local Planning Instrument. Section 4.1.52 IPA requires that the appeal be decided based on the laws and policies applying when the application was made, but permits weight to be given to any new laws and policies the Court considers appropriate. The draft Planning Scheme was placed on public display from October 2003 until February 2004. It included a building heights map which indicated a maximum of six storeys and 21 metres in height in respect of buildings on the land bounded by Angus Street, Hornibrook Esplanade and Elizabeth Avenue.
The land is included in the “Frame Business Zone” and “Preferred Use Area 10” in the draft Planning Scheme which is a small part of an area designated as “Clontarf Gateway Urban Village”.
Section 4.5 relates to the Frame Business Zone. Section 4.5.4 concerns the Frame Business Zone Code under three heads: firstly, Compliance with Frame Business Zone Code (s.4.5.5); secondly, Overall Outcomes for Frame Business Zone (s.4.5.6); and thirdly, Assessment Criteria (s.4.5.7).
Section 4.5.5 states that development that is consistent with the specific outcomes in s.4.5.7 complies with the Frame Business Zone Code. Section 4.5.6(2) states the overall outcomes sought for the Frame Business Zone, and include:
“(e) Building heights in the Frame Business Zone;
(i) are compatible with and complementary to the intended character and amenity of the preferred use area and adjacent zones.
…
(iv) contribute positively to the amenity of the location.”
Provision is then made in respect of the “preferred use areas” and in relation to
Preferred Use Area 10 the provision is:“(f) Preferred Use Area 10 – mixed uses provides a mixture of business, commercial and residential uses and provides a vibrant, safe and interesting pedestrian environment.”
Table 4.5.1 provides assessment categories and assessment criteria for making a material change of use in the Frame Business Zone. A change of use for a multiple dwelling is impact assessable development in Preferred Use Area 10 if not on the ground floor and the height of the building is 4 storeys or more. It is code assessable if the height of the building is not more than 3 storeys.
Section 4.5.7 contains assessment criteria. Paragraph (A) deals with general specific outcomes where development is located anywhere in the zone. Specific Outcome 2 is in the following terms –
“Building height in the number of storeys and metres do not exceed the heights indicated on the Building Heights Plan, except in Preferred Use Areas 13 and 14.”
Paragraph (B) relates to the location of development in Preferred Use Area 10 – Mixed Uses. Specific Outcome 4 states –
“Active uses are located on the street frontage in Preferred Use Area 10 – Mixes Uses and incorporate:
(a)entertainment, community uses, small scale retail and business uses on the ground floor;
(b) showrooms with a maximum floor area of 500 square
metres; and
(c) dwelling units located above the ground level.”
As noted, the Building Heights Plan includes the subject land within an area where the maximum height of buildings is 6 storeys and 21 metres in height.
Following publication of the draft Planning Scheme there were 440 submissions received relating to height, although, apparently, none in relation to the subject land or the triangular area referred to, of which it forms part (“the area which includes the site”) and which is zoned Local Business. In March 2004 there was a Council election and it would seem that the issue of building height, at least in general terms, was an issue in the community.
On 7 May 2004 a Temporary Local Planning Instrument was gazetted dealing with the height of development in Redcliffe City. The resolution adopting the Temporary Local Planning Instrument occurred at the General Purposes committee meeting of the Redcliffe City Council on 22 April 2004. This instrument, it appears to me, does no more than to provide that where the height of development is described in storeys in respect of development in the various zones, a further requirement is imposed that the height of development must also not exceed a specified height expressed in metres. That appears to me to be in substance the effect of the Temporary Local Planning Instrument. With reference to land zoned “Local Business” where the maximum height of development in relation to accommodation units and motels in the zone is specified as “three habitable storeys above ground level” the height in metres is 12 metres.
In June, 2004 the respondent had prepared a new Building Heights Map for various areas of the city, including the area which includes the site. This map provided for a maximum of three storeys and 12 metres for that area. A meeting of the General Purposes Committee of the Council on 6 September 2004 noted that since late April 2004 the Council had undertaken a series of workshops for the purpose of reviewing the draft version of its IPA compliant Planning Scheme and that an important element of the review process had been the limitation of building heights in Redcliffe City as indicated in the Building Heights Plan forming part of the draft scheme. The Council recognised that the review process was a continuing one and that the content of the draft scheme may be further reviewed, including in response to public submissions. It was noted that the Council had prepared a draft Building Heights Plan dated 16 June 2004 to make its current intention clear with respect to limiting the heights of buildings in Redcliffe City. It was resolved that the draft Plan illustrated Council’s current intention with respect to limiting the heights of buildings in Redcliffe City, and that the plan not be released or made available to the public until the draft scheme was released for public consultation in accordance with the process contained in Schedule 1 of the IPA. Finally, it was resolved that the Council’s resolution outlining the confidentiality requirements of matters relating to the draft scheme be maintained.
The modified draft Planning Scheme was scheduled to go on public display in October 2004.
The principal matter for determination in this appeal will be whether or not there are sufficient planning grounds to approve the application, despite the conflict which I have identified with the Strategic Plan. Some of the grounds for refusal by the respondent relate to failure to meet development standards, particularly in relation to site cover, setback and provision of recreation space. None of these matters, it is accepted by the town planner called for the respondent, would be sufficient to justify refusal of the application if it should otherwise be approved, and they were not the subject of any submissions on behalf of the respondent.
Relevant to the issue of planning grounds is the history of other approvals by the respondent Council in relation to land within the Local Business Zone (in one case) and in relation to land within the nearby Residential “B” Zone to the west of Elizabeth Avenue (in the other). In about March 2001 the Council approved an application for development of the site at the corner of Hornibrook Esplanade and Elizabeth Avenue (“the corner site”) for a nine storey composite building of commercial uses on the ground floor and residential uses above. That approval lapses in March 2005.
At about the same time the respondent Council approved a shopping development on the Residential “B” land west of Elizabeth Avenue in the same general vicinity, which was contrary to the intent of the Residential “B” Zone in that the area has become wholly devoted to the provision of shopping rather than to residential purposes. Both approvals were in conflict not only with the transitional planning scheme, but also with the strategic plan. The Residential “B” land had a “Residential Land” designation under the strategic plan. These approvals of course may have been justified if sufficient planning grounds were shown, notwithstanding the conflict with the strategic plan designations.
Mr Shannon, a witness called by the respondent, has had an involvement over some years with the land which includes the site. The subject site, as previously indicated, is at the north-eastern corner of this land, and the area which appears to be undergoing some development at the moment, for the construction of a nine storey mixed use commercial and multiple dwelling, is the corner site. There is a larger area in between these two sites which has frontages to Angus Street, Hornibrook Esplanade and Elizabeth Avenue. Mr Shannon acquired that site in the middle of 1997 and sold it in 1998. It was a rundown shopping centre, totally vacant at the time and during 1997 and 1998 he says he carried out a restoration and renovation of the centre and was able to lease a number of the premises within it. When he sold it in 1998 there were only two vacancies and it was a situation of almost 100% occupancy.
At that time he also became interested in the corner site, known as the “old service station site”. In early 1998 he purchased this site and applied to the Council to construct a single storey block of retail shops comprising approximately 390 square metres of retail tenancy which was subsequently approved. He then became aware that the owner of a large residential site on the opposite side of Elizabeth Avenue was seeking a rezoning of that site to construct a shopping centre. He became concerned that the introduction of the new shopping centre into the area would affect his own development and accordingly he approached the Council with a view to obtaining approval to erecting some residential apartments above the already approved single storey shops. He states that, with the support of the councillors and Council planners, he submitted an application to construct a nine storey composite building that had “ground floor retail” and “eight storey residential”. He says he met with the members of the Council and they indicated that they were in full agreement with the development application even though it was a non-preferred use in the Local Business Zone and the sentiment from Council was that it was pleased with the application as the proposed development would assist to regenerate the rundown state of this main entry point to the Redcliffe Peninsula. Subsequently the development was unanimously approved. Shortly after receiving this development approval Mr Shannon developed heart problems, and sold the site with the approval. The current owner of the property is Clontarf Developments Pty Ltd and according to evidence given by a lady speaking on behalf of that company the structure is in course of construction in accordance with the approval, and it is expected to be completed within the time now left; that is to say, by March of next year.
Subsequently in 2002 Mr Shannon commenced negotiations to acquire the site which is the subject of the present appeal. Tenants of the shops and other shops within the general area were being attracted to the new shopping centre west of Elizabeth Avenue. Mr Shannon formed the view that there was no real prospect of the subject site continuing as, or sustaining, a retail development, and decided to acquire the subject site with a view to seeking a development for a predominantly residential use, similar to the approval granted in respect of the old service station site. He said that he received encouragement verbally from the Mayor and the Council’s town planner with respect to such an application. He also says that but for this encouragement he would not have proceeded to purchase the subject site.
Both the approval of the shopping centre in the Residential “B” Zone and the approval of the residential/retail composite building at the corner site appear to me to have been in direct conflict with the Strategic Plan. It is argued by the appellant that, if this conclusion is correct, it shows that the Strategic Plan and indeed the Planning Scheme, have been overtaken by time and events and should not pose an impediment to approval of the development application, for that reason. It is also submitted that since the respondent Council had deliberately departed from the Strategic Plan in both instances the court is free also to depart from it and simply to consider the development application upon its substantial merits. The authorities I have been referred to in connection with these propositions are: Playfaire v. Maroochy Shire Council (1991) QPLR 87, and in particular at 88H; Grosser v. Gold Coast City Council (2001) 117 LGERA 153 at 46; Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224.
The approval for the development at the corner site by the decision of the respondent Council as assessment manager on 21 March 2001 was contrary to the recommendation of the relevant department of the Council, which was to the effect that the application be refused, and that the Council issue a decision notice to that effect upon grounds which included that the proposal was inconsistent with the intent of the Local Business Zone and the intent of the local commercial centre designation and significantly exceeded reasonable expectations for development within such a zone and designation. It was made perfectly clear to the Council that the development proposal was in conflict with the Strategic Plan and Council’s attention was directed to the provisions of s.4.4(5A) of the P&E Act. These matters need to be considered in the context of Mr Shannon’s evidence to the effect that he was encouraged to make the application and that the Council was interested in a development which would provide a “gateway statement” to the city.
As indicated above, evidence was given on behalf of the owner of the property to the effect that the building will be constructed within the remaining time for that purpose. If this should fail to be the case, but substantial progress has been made on the construction, then an application for an extension of time can be expected to be made, and would then have to be considered by the respondent and in the event of an appeal from that decision, by this Court.
There is no material before me in relation to the approval, apparently about the same time, of the development application for a shopping centre on the land that was zoned Residential “B” at the time, directly opposite the corner site. However there is no doubt that this development application too was granted, although it was in conflict with the zoning under the planning scheme, and the Strategic Plan designation for the site. Considering the two matters together, it suggests that the respondent Council at that time intentionally acted in a manner which involved treating the land zoned for “local business” and designated as a “commercial centre” as if the zoning and designation included residential uses, and treating the land zoned Residential “B” and designated “residential” as if the zoning and designation included commercial uses.
A development application for a composite building has also been made in respect of the relatively large site between the corner site and the subject site. This was for a refreshment service of 205 square metres and a multiple dwelling of 98 dwelling units in two 8 storey buildings. This land is located at 10-22 Hornibrook Esplanade Clontarf. It is also included in the Local Business Zone in the Transitional Planning Scheme and is included in the Local Commercial Centre Preferred Dominant Land Use designation within the respondent’s Strategic Plan. This application appears to have been made in June 2003 and was refused by a decision of the respondent Council on 18 February 2004, set out in a decision notice dated 23 February 2004. The reasons given for rejection of the application are similar to those stated in the decision notice in the present case. The decision on that development application is the subject of an appeal filed in this Court on 22 March 2004.
Obviously s.4.4(5A) of the P&E Act is mandatory in its terms. In my view, whether or not any Strategic Plan or Development Control Plan is “relevant” is something to be determined by the location of the site and the terms of the plan. It is not something which is to be determined with reference to any attitude which the local Government may have demonstrated in relation to the plan by previous conduct inconsistent with its terms. If the contrary were the case the local Government would, in effect, be free to ignore the restrictions imposed upon it by the subsection. Nor, in my opinion, would a strategic plan or a development control plan cease to be “relevant” because a local government or the Court formed the view that the plan in question had been “overtaken by time and events”. In my view the reference to those plans is controlled by the definition of them contained in the P&E Act, and their relevance is to be collected from the terms of the documents themselves in relation to the development site.
Whether or not the granting of approvals inconsistent with the Strategic Plan may constitute planning grounds to be considered in determining whether or not there are “sufficient planning grounds to justify approving the application despite the conflict” is another matter. It is reasonable to take the approach that if the Council of the local government has itself ignored the intent of the planning documents in previous applications, it should not be able to assert that intent against a subsequent applicant. However, although this may constitute a reason or ground justifying non-compliance with the planning documents affected, it does not necessarily follow that it is a “planning ground”. No argument was addressed to me on this point, and as it is not necessary to my decision on this appeal to decide it, I shall refrain from doing so.
On the other hand, the contention that a strategic plan has been “overtaken by time and events” is, or includes, a reference to facts “on the ground” which clearly enough may be relevant to the decision on an application for a material change of use in a particular case, and can readily be seen as constituting, or giving rise to, “planning grounds”.
Planning grounds asserted by the appellant can be grouped under 3 heads:
(a) the Strategic Plan has been “overtaken by time and events”
(b) the respondent council has itself departed from the planning
intent expressed or implied in its planning documents
(c) the height and bulk of the building will contribute to the
amenity of the immediate locality, and the city, rather than
detracting from it.
(A) The events referred to are:
1. (i) the failure of the land which includes the site, as a local business or local commercial centre, evidenced by the large number of untenanted premises over a period of several years, a situation caused in part by commercial development to the west of Elizabeth Ave, near its intersection with Hornibrook Esplanade which was approved by the respondent;
(ii) the commercial development referred to in (i)
(iii) the site preparation for, and partial construction (at the date of hearing) of a composite building containing 8 floors for residential use at the corner site;
(iv) the concentration of (relatively) major retail facilities at Kippa Ring, Redcliffe and Anzac Ave;
(B) The departures complained of relate to the approvals of the commercial
development on the land zoned Residential B to the west of Elizabeth Ave, and of the composite building at the corner site.
(C) (i) The court should be satisfied on balance that the building at the
intersection referred to above will be completed prior to March 2005
(or at least so much of the development will be completed as to warrant
a successful application under s. 3.5.22 IPA for an extension of the
currency period);
(ii) There is a further development application, refused by Council but now the subject of an appeal to this court involving the construction of 2, 8-storey residential buildings;
(iii) There are no unacceptable impacts with respect to acoustic amenity, traffic generation, overshadowing or over looking. The fact that the building will be taller than the existing buildings in the locality does not of itself lead to unacceptable impacts. The building is admitted to be of architectural merit, and will add positively to the visual amenity of the locality and the streetscape. There are other buildings on the peninsula taller than surrounding development, and it is not suggested that for that reason they should be seen as unacceptable.
The principal submissions made on behalf of the respondent are as follows:
1. Firstly, it is contended that the development proposal is in conflict with the strategic plan on the issue of height. I have considered this earlier in these reasons, and I reject that contention.
2. Secondly, it is submitted that the appellant has shown no planning grounds to justify approving the application. More particularly, it is said:
(a) - that although the land of which the site forms part is in need of rejuvenation, this can occur by new commercial development as contemplated in the draft IPA plan. Evidence was given by Mr Brown, the respondent’s town planning witness, that Foodland is the operator of the Action supermarket, and is the owner of the site on which it stands, and that it plans to spend some $3m completely refurbishing and redeveloping the supermarket, which can be expected to have the effect of attracting new tenants to that location.
Mr Brown’s evidence, however, was not supported by any to similar effect from any representative of Foodland, which detracts considerably from the weight which can be accorded it in the circumstances. He conceded in cross-examination that there was no present application for any redevelopment on the site. Moreover, the draft plan contemplates mixed residential and commercial uses, and provides that in Preferred Use Area 10 a material change of use for a multiple dwelling is impact assessable if not on the ground floor and the height of the building is 4 storeys or more.
(b) - that the probability is that the corner site development will not in fact eventuate, in view of the time which has elapsed since the approval was given, and the rudimentary stage of the construction at present, together with problems confronting the owner of the site in the form of a number of caveats on the title.
Only very general evidence in relation to this was given by Mr Brown. On the other hand, a representative of the applicant with the benefit of the approval assured the court that the applicant was able to proceed with the development, and intended to do so. The fact of the approval and this evidence means that I would not be justified in drawing the conclusion suggested, as opposed to concluding, as I do, that substantial progress may well be made on the building by the end of the currency period.
(c) - that there is adequate land appropriately zoned in Redcliffe City for the development of multiple dwellings. I agree that this is a factor to be taken into account.
(d) - that the proposed development is significantly out of character with the locality as a consequence of its height and bulk.
At the moment that is so, because of the old and rundown development on the land which includes the site. But this will not be so, if and when the corner site development is completed, and as a consequence the area may be substantially devoted to medium to highrise residential buildings with a retail or commercial component.
3. Thirdly, it is submitted that the issue of height is a matter of council policy which should not be “cut across” by approval of a development such as the present proposal, but:
(i) the approval of the corner site development has already compromised or undermined such a policy;
(ii) this consideration, although important, is just one matter to be taken into account, and does not have an overriding importance when substantial grounds for approval are shown by the appellant, as, in my opinion, they are in this case, and the “policy” does not find expression in the strategic plan or a development control plan;
(iii) there is no clear policy here with respect to height; and otherwise the development is consistent with the policy to be discerned from the draft plan. The weight that it is appropriate to give the draft IPA plan with respect to height is, in my opinion, small, given the history of the plan itself, and of preceding events.
I consider that the strategic plan has been overtaken by time and events in the form of the commercial development on the land zoned and designated residential to the west of Elizabeth Ave, and the construction underway of the composite building at the corner site. This is confirmed by the draft IPA plan which now includes the former land in a commercial area, and provides for mixed commercial and residential uses on the site, and the land which includes the site.
I do not decide whether the departure by a local government from the intent of its forward planning documents should be regarded as a planning ground for the purposes of s.4.4(5A) for reasons adverted to earlier. However such a situation may be evidence that these documents have been overtaken by time and/or events, which I think is the case here.
Further the draft IPA plan indicates that the relevant zoning provisions (with respect to “Residential B” and “Local Business”) of the Transitional Planning Scheme have also been overtaken. Neither the planning scheme nor the strategic plan contains any specific height restriction with respect to the development proposed on the subject site. Height restrictions appear, for the first time, in the draft IPA plan, and it cannot be said that any clear policy with respect to that issue can be collected from the plan.
In summary –
1. The development proposal is in conflict with the transitional planning scheme including the strategic plan;
2. Both the strategic plan and the zoning provisions of the planning scheme have been overtaken by time and events;
3. The draft IPA plan recognises this with respect to land use. So far as land use only is concerned, the draft plan is consistent with the approvals already granted by council for the land west of Elizabeth Ave, and for the corner site each of which was inconsistent with the zoning provisions of the transitional planning scheme and with the strategic plan. So far as land use is concerned, the draft IPA plan has, arguably, proceeded far enough along the path to full status as a planning instrument of the respondent to be given some weight in arriving at a conclusion in the appeal, although the final form of the document must be, at this stage, largely a matter of speculation;
4. Sufficient planning grounds have been established to approve the application, notwithstanding conflict with the strategic plan, so far as the application relates to a change of use from commercial to mixed commercial and residential;
5. The fact that the proposed development is presently out of character with the locality as a consequence of its height is not, in the circumstances related above, a strong ground of objection to the proposal;
6. The remaining issue is height. The draft IPA plan can be given very little weight with respect to that issue. It might have had some weight in support of a height restriction of 6 storeys, but that has been undone by the subsequent proposed restriction of 3 storeys, which for the purposes of this appeal is simply an internal decision of Council, and not itself entitled to any weight, combined with the intention to resubmit the draft planning scheme to the public, with possible further revisions. There is no conflict with the transitional planning scheme, in particular the strategic plan, with respect to the height of the building. The issue of height in this appeal is simply a question of impact, and for reasons advanced by the appellant’s architect, and the real prospect of the composite tower to the south of the proposed development, I consider, on balance, that the height of the building will not entail undesirable impacts in the locality, or with respect to the City in general.
Section 25(6) of the transitional planning scheme identifies criteria to which regard is to be had, in relation to amenity in considering any application to erect a multiple dwelling. These are:
(i) the existing and future amenity of the locality;
(ii)whether the locality is suited for the proposed height of the building, having regard to the Council’s planning intent for the area, and existing buildings and approvals;
(iii) the likelihood of traffic problems created by the proposal;
(iv) the effect of shadowing on neighbouring properties;
(v) the architectural merit of the building design;
(vi) such other matters as the Council may consider to be relevant.
I consider that these criteria are met in the present proposal. To the extent that there is conflict with the strategic plan I conclude that there are sufficient planning grounds to justify approving the application despite the conflict.
The appeal is accordingly allowed, and the application is approved subject to relevant and reasonable conditions. The further hearing of the appeal is adjourned to enable such conditions to be formulated and agreed, or otherwise determined.
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