Queensland 2000 Pty Ltd v Gold Coast City Council
[2001] QPEC 44
•22/06/2001
PLANNING & ENVIRONMENT COURT OF
QUEENSLAND
CITATION: Queensland 2000 Pty Ltd v Council of the City of Gold Coast &
Ors [2001] QPE 044PARTIES: QUEENSLAND 2000 PTY LTD
Appellant
COUNCIL OF THE CITY OF GOLD COAST
Respondent
IAN CAIRNS MAXWELL & REVELYN MAXWELL
First Co-Respondents
ALAN FRANCIS GULEY &
MARGARET LESLEY GULEY
Second Co-Respondents
FILE NO: 484 / 2000 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING
COURT:Planning & Environment Court Southport DELIVERED ON: 22 June 2001 DELIVERED AT: Southport HEARING DATE: 19, 20, 21 February & 17 April 2001 JUDGE: Newton DCJ ORDER: Appeal dismissed CATCHWORDS:
Application for Material Change of Use – duplex dwelling - relaxation of planning scheme provisions – residential dwelling house zone – whether proposal is within mixed low density residential designation or detached housing PDLU – whether amenity and low density character of detached housing areas in line with expectations of residents has been maintained
COUNSEL:
Mr B G Cronin – appellant Mr J Houston – respondent Mr A N Skoien – co-respondents
SOLICITORS: Phillips Fox – appellant
McDonald Balanda & Associates – respondent
Robert W Blank & Associates – co-respondents
IN THE PLANNING & ENVIRONMENT COURT OF
QUEENSLAND
| SOUTHPORT | No: 484 of 2000 |
| BETWEEN: | QUEENSLAND 2000 PTY LTD |
Appellant
| AND: | THE COUNCIL OF THE CITY OF GOLD COAST |
Respondent
| AND: | IAN CAIRNS MAXWELL AND REVELYN MAXWELL |
First Co-Respondents
| AND: | ALAN FRANCIS GULEY AND MARGARGET LESLEY GULEY |
Second Co-Respondents
REASONS FOR JUDGMENT – NEWTON, DCJ
(Delivered the 22nd day of June 2001)
[1] This is an application for a development permit for a Material Change of Use
of premises to develop a duplex dwelling and relaxation of certain planning scheme
provisions on Lot 10, SP126122 situated at 31 Durham Street, Southport. The
proposal is for the construction of a two-storey duplex dwelling (two attached
dwelling units). Each dwelling is proposed to have three bedrooms on the first level
and associated living areas and laundries on the ground floor.
[2] The proposed building design is best described as exhibiting a modern style of
architecture. Each dwelling unit is proposed to have a gross floor area of
approximately 255m2. This equates to a plot ratio for the site of 0.85. The proposed site coverage equates to 49.8%. The western dwelling unit (that is, the unit closest to
Ferry Road) has been allocated 32.4% of its site area as landscaped open space and
36.7% of the site area of the eastern dwelling unit is to be allocated as landscaped
open space. Private recreation areas for the two dwellings are located at the northern
end of the site.
[3] The proposal includes two car parking spaces for each dwelling unit in the
form of two double garages which are both to be located six metres from the front
boundary alignment. These garages are proposed to be built to the side boundary of
the site on the eastern and western boundaries. An area available for visitor car
parking will be provided on the driveway area in front of each garage in front of each
unit.
[4] The subject site is situated on the northern side of Durham Street, one
allotment to the east of Ferry Road, Southport. The site occupies an area of 451m2
and is generally rectangular in shape. The frontage of the site is 15.6m and the
average depth is 29m. A 3m wide sewerage easement traverses the rear part of the
allotment.
[5] The site is currently vacant and is surrounded on its rear and side boundaries
by a 1.8m high timber paling fence. A temporary fence is located along the frontage
to Durham Street. The land is flat and low lying and is generally level with Durham
Street. It requires a small amount of filling to raise the floor area of the building
above Council’s nominated flood level for the area.
[6] The subject site was created as Lot 10 on SP126122 in February, 2000 as a
result of re-subdividing Lots 160 and 161 on RP48268 by re-aligning the dividing
boundary from an east-west to a north-south direction. The previous Lots 160 and
161 were 473m2 and 410m2 in area respectively, whilst Lots 10 and 11 are 434 m2
and 451m2 respectively.
[7] The subject site is adjoined by established detached housing on its northern
and eastern boundaries. A detached house has also recently been constructed by the
appellant on land fronting Ferry Road and adjoining the western boundary of the site.
On the opposite side of Durham Street is detached housing. Indeed, properties in
Durham Street are all detached residences, including the house immediately west of
the site. Durham Street is a residential access street of some 12m kerb to kerb, with
kerb and channel and grassed verges on both sides.
[8] Existing allotments in Durham Street range in area between 405m2 and
2585m2 with the majority of the allotments having areas towards the lower end of that
range. Six of the 19 houses in Durham Street straddle two allotments and these have a
minimum size of 810m2.
[9] The surrounding land uses in Durham Street and Ferry Road are detached
residential dwelling houses. Commercial activities in the vicinity of the subject site
are limited to a medical centre some 20m north-west of the site on the corner of Yacht
Street, a childcare and swimming centre on the northern side of Yacht Street, a dental
technician’s premises located on Ferry Road some 250m south of Durham Street and
a home occupation for an office some 380 metres further to the south. No higher density residential development, either duplex development or townhouse
development, has occurred in the locality between Korong Street and west Chevron
Island bridge.
[10] On the western side of Ferry Road opposite the Durham Street intersection, is
a large triangular parcel of land located on the northern side of the intersection of
Ferry Road and Cotlew Street east. That land is currently zoned Special Facilities –
Commercial Development, Service Station and Shop. The site is currently under
construction.
[11] The subject site is within the Residential Dwelling House zone under the City
of Gold Coast Planning Scheme.
[12] In accordance with the provisions of the Integrated Planning Act advertising
was undertaken by the applicant. Nine submissions were received by the respondent,
one of which was out of time. The first and second co-respondents were included in
the eight valid submissions. Both are residents of Durham Street.
[13] At its meeting of 2 June 2000, the respondent resolved to refuse the
application. Three grounds of refusal were cited:
¨ The proposed development would have an adverse impact on the residential amenity of the surrounding area.
| ¨ | The proposed development would have an adverse impact on traffic safety. |
| ¨ | The proposed development may be a precedent for further encroachment of |
| duplex development into Durham Street. |
[14] The applicant was advised by the respondent of its decision in correspondence
dated 5 June 2000. Subsequently the applicant exercised its rights under the
Integrated Planning Act and lodged an appeal in this Court. The date of lodgement is
unclear as it was not included on the notice of appeal, however, nothing turns on this.
On or about 27 June 2000 notice was served on the submitters by the appellant that an
appeal had been lodged and that they were entitled to become co-respondents to the
appeal. Four respondents elected to become co-respondents to the appeal – Dr and
Mrs Maxwell, Mr and Mrs Guley, Mr and Mrs Hart and Mrs Thorsborne. Mr and
Mrs Hart and Mrs Thorsborne have subsequently withdrawn from the action.
[15] At a meeting held on or about 8 August 2000 the parties agreed that traffic
impact was not to be an issue in dispute.
[16] The appellant rejected the grounds of refusal nominated by the respondent and
in correspondence dated 25 August 2000 advised the List of Issues in Dispute. In
summary, the appellant’s response to the grounds of refusal are as follows:
1. (a) The proposed development is consistent with the Mixed Low Density Residential designation on the Strategic Plan which foresees development of detached housing, duplex and townhouse development; (b) The site area exceeds the minimum area stipulated in the Town Planning Scheme of 400m2 for duplex developments; (c) The design is of a very high standard, with the units being larger than normal duplex dwellings; (d) The building height does not exceed that of the adjacent dwelling at 29 Durham Street; (e) The design provides enhanced privacy and security for the adjoining dwelling by having central entrance areas; (f) The duplex zone is the lowest intensity of development in the mixed low density residential category other than a single dwelling; (g) The duplex form of development is consistent with the reasonable expectations of residents in the area; (h) The relaxations sought would result in a development that was compatible with existing development; (i) The development is consistent with the character of the neighbourhood; and (j) The development has not been subject to adverse comment from any concurrence agency. 2. The ground of refusal relating to an adverse impact on traffic safety
was agreed by the parties not to be in dispute.
3.
(a) The Strategic Plan will prevent further duplex development in Durham Street as land further to the east is designated for
detached dwellings only; and
(b) It is irrelevant that there are no other duplex developments existent between Korong Street and Wells Street.
[17] The respondent Council advised its issues in dispute on 25 August 2000 as
| follows: | ||
|
sufficient planning grounds to justify approving the application despite
the conflict. The particulars may be summarised as follows:
(a) Development in the Mixed Low Density Residential areas is to accord with the provisions of the Residential Townhouse
Development Zone. The proposed development does not
accord with the provisions of that zone;
(b) The objective in the Strategic Plan for the development to be “compatible with existing development but makes more
efficient use of the land” has not been satisfied;
(c) The proposed development is not consistent with the existing detached housing surrounding the site;
(d) The development does not conform with the development provisions covering site coverage, height and appearance;
(e) There has been no justification provided to justify the approval, given the above conflicts.
2. The proposed development would have an adverse impact on the
residential amenity of the surrounding area. The particulars may be
summarised as follows:
(a) The area has a high degree of residential amenity because of the large allotment sizes in the street;
(b) A duplex is not consistent with the reasonable expectations of residents of the area;
(c) The development represents an over-development of the site, as evidenced by the request for relaxations;
(d) No compelling planning reason has been given to justify the relaxations sought;
(e) Privacy of the residents of 29 Durham Street is adversely impacted; and
(f) The aesthetics of Durham Street would be prejudiced by the proposed development, which is dominated by garage doors.
3. No sound town planning grounds have been submitted by the appellant
to justify approval of the relaxations of the development standards
applicable to the development and exercise of discretion in favour of
the appellant despite non-compliance with the development standards.
The particulars may be summarised as follows:
(a) The development does not comply with the provisions of Clauses 4.11.2.2 and 4.11.3.3 of the Town Planning Scheme
and no grounds have been submitted to justify relaxation of
those provisions.
4. Approval of the application would result in an over-development of the
site and cause an unacceptable impact upon the residential amenity of
the surrounding area. The particulars may be summarised as follows:
(a) Development is required to provide sufficient useable area for suburban dwellings;
(b) The development is prohibited development in the current zone of Residential Dwelling House;
(c) The development is not compatible with existing development, being in a form that is substantially different from other
buildings in the locality;
(d) The requested relaxation in site coverage will result in a scale of building that impacts upon the amenity of the area and upon
the available private open space for the development.
5. The submitters to the application have raised valid grounds of
objection to support refusal for a Material Change of Use. The
particulars reflect those outlined above.
[18] The respondents by election, Dr and Mrs Maxwell and Mr and Mrs Guley, on
28 August 2000 advised the following issues in dispute which may be summarised as
follows:
1. The respondents by election adopted the list of issues of the respondent
and the additional matters following.
2. The Mixed Low Density Residential Preferred Dominant Land Use
designation adopted by the appellant is wrong as it is based upon
historical cadastral information and does not reflect the current
cadaster, which makes such a determination questionable and doubtful.
[19] The subject site is currently located within the Residential Dwelling House
Zone. The Planning Scheme for the City of Gold Coast states in clause 4.3.1, that the
intent of this zone “is to implement the objectives of the Detached Housing Preferred
Dominant Land Use in the Strategic Plan. It is intended, therefore, to provide for the
development of detached houses in an almost exclusively low density residential
environment… All development within the Residential Dwelling House Zone will be
subject to provisions which seek to ensure a pleasant low-density living environment.
[20] Under the provisions of the Table of Development for the Residential
Dwelling House Zone, the subject use of Duplex Dwelling is a prohibited use.
Accordingly, prior to the enactment of the Integrated Planning Act (IPA), the subject
land would have required approval of a re-zoning application to undertake the form of
development being proposed. However, under IPA, re-zoning of land is not required
and an application must be made for a Material Change of Use, as has been done in
this instance.
[21] The purpose of the town planning provisions with respect to the Residential
Dwelling House Zone may be accepted as being primarily to protect residential
amenity from unwarranted intrusion by incompatible development. This case requires
an assessment of the impact of the proposed development on nearby residential
amenity in order to determine whether or not they are unacceptable.
[22] Although Mr Dredge, a town planning consultant called by the appellant,
expressed the opinion that the subject site under the Strategic Plan falls within the
Mixed Low Density Residential Preferred Dominant Land Use, it is more accurate to state that the subject land is in an area at the interface between the Detached Housing
and Mixed Low Density Residential Preferred Dominant Land Uses.
[23] The Strategic Plan depicts a strip of land adjacent to Ferry Road within the
Mixed Low Density Residential Preferred Dominant Land Use designation. The
Town Planning Scheme states in the Intent for the Strategic Planning Statements in
clause 1.3 that, “The Strategic Plan has a cadastral base and boundaries between the
various preferred dominant land use categories shown on the Map are, in most
instances, formed by property boundaries or roads”. What is far from clear in this
case is precisely where that boundary between the two PDLUs is located.
[24] Mr Dredge expressed the view that the Strategic Plan Map shows a PDLU of
Mixed Low Density Residential Preferred Dominant Land Use along the eastern side
of Ferry Road to a depth of approximately 40m and that the subject land falls within
this designation. The balance of the residential area to the east is designated as
Detached Housing on the Strategic Plan Map.
[25] However, Mr Grummitt, a town planning consultant who testified on behalf of
the first and second co-respondents, points out that it is logical that the line shown on
the map, at the least, includes all lots fronting Ferry Road. Mr Grummitt included in
his report (Exhibit 13) a drawing, numbered 00081-SP1, attached as Appendix M to
his report, which shows a line parallel to Ferry Road and including all lots fronting
Ferry Road. Mr Grummitt points out that this drawing shows that, for the line to be
adopted, numerous lots within the streets between Ferry Road and Regatta Parade
would be included in the Mixed Low Density Residential PDLU. Mr Grummitt considers that this is unlikely to have been the intent of Council as it would be
impossible to clearly determine which lots are within the Mixed Low Density
Residential PDLU designation and which are not. Mr Grummitt considers that the
interface between the Detached Housing PDLU and the Mixed Low Density
Residential PDLU is not sufficiently determinate to fulfil the Intent of the Strategic
Plan Map outlined above.
[26] Appendix N, attached to Mr Grummitt’s report, comprises a drawing
numbered 00081-SP2 which Mr Grummitt regards as a more likely interpretation of
the Intent of the Strategic Plan Maps in that the Mixed Low Density Residential
Preferred Dominant Land Use designation applies to all lots fronting Ferry Road and
that all lots fronting the side streets off Ferry Road are located within the Detached
Housing PDLU.
[27] As I have already indicated, the subject land, prior to October 1999, formed
the eastern parts of Lots 160 and 161 on RP48262. In October 1999 a plan was
registered for a Reconfiguration of Lots 160 and 161 to reorient the lot boundaries in
an east-west direction rather than a north-south direction as had been the case for Lots
160 and 161, creating Lots 10 and 11 on SP126122. Accordingly, where the former
lots both had frontage to Ferry Road, and so clearly fell within the Mixed Low
Density Residential PDLU designation, now only Lot 11 on SP126122 fronts Ferry
Road and Lot 10 on SP126122, the subject site, fronts Durham Street.
[28] Mr Grummitt considers that Lot 10 should carry the Detached Housing, and
not the Mixed Low Density Residential PDLU designation as proposed by the
appellant.
[29] Mr Perkins, a town planning consultant who testified on behalf of the
respondent Council, also considers that the subject site is at the interface between the
Detached Housing and Mixed Low Density Residential Preferred Dominant Land
Uses. He considers it relevant to an analysis of the proposal in terms of the Strategic
Plan that the Strategic Plan states that, “Boundaries between the various preferred
dominant land use categories shown on the map are, in most instances, formed by
property boundaries or roads. Where this is not the case, the boundary is schematic
and will be determined subject to detailed site investigation.”
[30] Mr Perkins points out that in many localities of Gold Coast City reference to
the Strategic Plan Map identified clearly distinguishable boundaries between the
PDLU boundaries. However, in the case of the boundary of the Mixed Low Density
Residential PDLU on the eastern side of Ferry Road in the locality of the subject site,
the boundary is clearly not formed by a road. In Mr Perkins’ opinion the line as
drawn does not follow a definite line of property boundaries. Mr Perkins concludes
that the Mixed Low Density Residential PDLU designation boundary on the eastern
side of Ferry Road in this location is logically based on encompassing only those
allotments with frontage to Ferry Road. As the subject site does not have frontage to
Ferry Road, it follows that the site should be included within the Detached Housing
PDLU.
[31] The appellant contends that the extent of the PDLU was fixed and defined as
at the date of gazettal of the Planning Scheme in February 1994. As at that date the
real property description of the subject lands was Lots 160 and 161 with the eastern
boundary adjacent to the Hart property at 29 Durham Street. The eastern boundary of
the Mixed Low Density Residential PDLU was along the eastern boundary of Lots
160-163, although counsel for the appellant concedes that there may be some
uncertainty as to the location of that boundary in relation to Lots 1 and 2 to the north.
The PDLU boundary, it is submitted, is also clearly defined by the four allotments
along Ferry Road between Durham Street and Skiff Street. Again, counsel for the
appellant acknowledges the existence of some uncertainty in determining the PDLU
boundary on the southern side of Durham Street and as one moves south along Ferry
Road.
[32] Counsel for the appellant is critical of the suggestion of Mr Perkins that the
PDLU may change by interpretation of the Strategic Plan from time to time. Mr
Cronin argues that that is the same as changing the Strategic Plan Map which may
only be done in accordance with the statutory procedure to amend part of a planning
scheme.
[33] I accept that the Planning Scheme comprises the “transitional planning scheme
for the area” (section 6.1.3(1) IPA) and continues to have effect for the area for which
it is made (section 6.1.2(1) IPA).
[34] A planning scheme comprises several instruments including the Strategic Plan (section 2.1(c) Local Government (Planning and Environment) Act 1990), A strategic plan is to include “a map or series of maps depicting preferred dominant land uses for
the area” (section 2.4(a) Local Government (Planning and Environment) Act 1990).
The approval of a planning scheme is to be given by Order in Council (section 2.15(a)
Local Government (Planning and Environment) Act 1990) and has the force of law
(section 2.15(9) Local Government (Planning and Environment) Act 1990).
[35] A planning scheme is a statutory instrument under section 7 of the Statutory
Instruments Act 1992. A planning scheme may only be prepared in compliance with
the provisions of section 2.10 to section 2.15 of the Local Government (Planning and
Environment) Act 1990 and may only be amended pursuant to sections 2.18 to 2.20 of
that Act.
[36] It is contended on behalf of the appellant that as the Strategic Plan cannot be
amended by changing the PDLU for an area, (including any allotment in an area)
unless the statutory procedure is complied with, the boundary remains the eastern
boundary of what was Lots 160-164 as the eastern boundary of those lots has not
changed, even though Lots 160 and 161 have now been reconfigured into Lots 10 and
11.
[37] It is important to bear in mind that, as drawn, the line defining the Mixed Low
Density Residential PDLU does not follow a definite line of property boundaries. The
designation is defined by a straight line drawn along the border of Ferry Road, while
the boundaries of the various allotments are in no way consistent with that line.
Accordingly, I am satisfied that the boundary must be regarded as schematic and that it can only be determined pursuant to a detailed site investigation (section 1.3 of the
Strategic Plan).
[38] I accept the submission of counsel for the respondent that there is no logical
inconsistency of the eastern boundary of the Mixed Low Density Residential PDLU
changing if (as is the case here) a boundary realignment results in a change from two
allotments fronting Ferry Road to only one allotment fronting Ferry Road. This is
particularly so if, as I accept, the determining factor is frontage to Ferry Road.
Accordingly, in my view, only those allotments fronting Ferry Road will fall within
the designation. It follows, then, that the subject land falls within the Detached
Housing designation.
[39] This conclusion does not involve any amendment of the Strategic Plan Map.
The map has not changed. The interpretation of the boundary of the appropriate
PDLU involves consideration of a schematic boundary following detailed site
investigation. In these circumstances, where a reconfiguration of lots has occurred,
the positioning of the eastern boundary of the Mixed Low Density Residential PDLU
may well change as a result of such boundary realignment. The map itself, however,
has not changed.
[40] It follows from the above that the provisions of the Detached Housing PDLU
should apply to the subject site and thus that development of the site will be required
to accord with the provisions applicable to the Residential Dwelling House Zone.
Under the provisions of the Table of Development for the Residential Dwelling House Zone, the subject use of duplex dwelling is a prohibited use. The intent of the
Detached Housing designation envisages that:
“The maintenance of residential amenity is a major priority for the Council in relation to detached housing areas. Residents of such areas have consistently expressed the view that residential development should be mainly restricted to detached housing. Accordingly the preferred dominant land use is detached housing on individual allotments… Other development may include townhouse development, integrated housing and aged persons accommodation subject to such development being at a scale and density compatible with detached housing…
Development in these areas will be required to accord with the provisions applicable to the Residential Dwelling House Zone.”
[41] The provisions of IPA specifically state that no development can be
prohibited, but that impacts from the development upon the amenity of its environs
must be assessed by the Assessing Authority.
[42] The objectives for areas designated as Detached Housing under the Strategic
Plan have been identified as follows:
(a) areas in line with the expectations of residents.
To maintain the amenity and low density character of detached housing housing character, the Council will only favour proposals for development which are complementary to and compatible with dwelling houses. The provisions of the Planning Scheme relating to site coverage, development density, building height, on-site open space, car parking and landscaping will set standards for all development which further ensure the maintenance of amenity and character. Through its own programs the Council will progressively improve streetscapes and the safety of residential roads.
(b) To provide for a range of accommodation types in developing areas. [43] If the subject land, contrary to the view I have formed, falls within the Mixed
Low Density Residential PDLU on the Strategic Plan, it is necessary to have regard to
the objective of that PDLU which is expressed to “Promote the orderly redevelopment of Mixed Low Density Residential areas in a manner that is compatible with existing
development but makes more efficient use of the land”. The subject land is clearly at
the interface of the two designations and thus the proposed development is required to
be compatible with the existing, well-established, detached housing in Durham Street.
It is of some importance that the character of housing on the northern side of Durham
Street has been reinforced by the construction on Lot 11 (immediately to the west of
Lot 10 and fronting Ferry Road) of a detached house. There is some force in the
submission of counsel for the respondent that it would be quite incongruous to have a
streetscape characterised by a lower density development (a detached house) on Lot
11, then a higher density (duplex) development on Lot 10, then lower density
detached housing in the balance of the street.
[44] Counsel for the appellant, in his written submissions, accused the respondent
Council of adopting an opportunistic approach to secure a refusal of the proposal by
changing its views as to the relevant PDLU shortly prior to the hearing of this appeal.
Mr Cronin referred to minutes of the Council in relation to its meeting on 2 June 2000
and to minutes from its meeting of 26 August 1999 in relation to the reconfiguration
application that it regarded the subject land as falling within the Mixed Low Density
Residential PDLU designation. However, it should be noted that Council did not
accept the recommendation of its planning officer and therefore it cannot be said that
Council regarded the subject land as falling within the Mixed Low Density
Residential PDLU, nor can it be accepted that Council had any obligation to accept
the contents of its town planner’s report. Furthermore, in relation to the minutes on
the reconfiguration application, I accept that the report containing the “basic information” which identified the relevant PDLU as Mixed Low Density Residential,
was not formally adopted by the Council and no such adoption appears in the minutes.
[45] Thus, it cannot be said in my view, by reference to the minutes identified by
counsel for the appellant, that the respondent Council has always regarded the subject
land as falling within the Mixed Low Density Residential PDLU prior to and
subsequent to the 1999 reconfiguration.
[46] Indeed, the respondent Council has retained an independent town planning
consultant, Mr Perkins, to give evidence on its behalf in this appeal. The report of Mr
Perkins (Exhibit 11) sets out Mr Perkins’ views in relation to the appropriate approach
to the construction of the Strategic Plan designation relevant to the subject site. Mr
Perkins favoured a construction of the Strategic Plan which differs from that
previously identified by the Council in the particulars to paragraph 1 of its List of
Issues dated 25 August 2000 and which also differs from the views expressed in the
minutes referred to by Mr Cronin. The respondent Council must be taken to have
supported the construction of the Strategic Plan identified by its independent town
planning expert, Mr Perkins. There is no suggestion that Mr Perkins has not complied
with the duties imposed upon him by the Court’s guidelines for experts. In the
circumstances, I reject the allegation that the respondent Council has adopted an
opportunistic approach in order to secure a refusal of the proposal.
[47] Mr Grummitt expressed the view that the proposed duplex development is
visually substantively difference from detached dwellings and as such would impact
upon the amenity and low density character of the existing residential areas. He points out that the development is of two-storey construction and presents to Durham
Street with a pair of double width garage doors of some five metres each. The site
frontage is only 15.6m, so the garage doors alone represent 64% of the frontage of the
site. Mr Grummitt notes that none of the existing dwellings in Durham Street have
such a dominance of garage doors facing the street. He concludes that the streetscape
of Durham Street would be significantly impacted by the proposed development. Mr
Grummitt also notes that the site coverage of the development requires Council
approval for a relaxation from 40% to 49.8%. Given the large size of lots in Durham
Street, few, if any, of the existing dwellings in that street have site coverage as large
as that proposed. Mr Grummitt considers that this fact demonstrates that the proposed
development will have a significantly different character from that existing in the
street.
[48] The proposal seeks the respondent Council’s relaxation to boundary set-backs
to the garage areas to zero. Mr Grummitt states that none of the existing dwellings in
Durham Street have been built to boundaries and so this element alone would
demonstrate a significantly different character to that existing in the street.
[49] In relation to the east elevation for the proposed development, Mr Grummitt
considers that the light and circulation of breezes will be impacted significantly in the
case of 29 Durham Street. The north elevation indicates that 29 Durham Street and
220 Ferry Road will both be impacted by overlooking from the upper floor levels of
the development where balconies are proposed.
[50] To accommodate some of the concerns expressed by Mr Grummitt, an
alternative plan was submitted during the hearing by the appellant which reduced the
extent of the garage areas. The amended plan, showing the deletion of the eastern part
of the eastern garage and the proposed landscaping generally in accordance with
Exhibit 7, partly deals with the concerns expressed by Mr Grummitt in relation to the
streetscape of Durham Street.
[51] The evidence given by the objectors generally relates to concern on their part
with respect to the intrusion of a more intensive form of development into Durham
Street. The objectors generally consider that the current amenity of Durham Street is
identified by single detached dwellings on large blocks of land, offering large
amounts of open space and garden areas. They consider that the introduction of
duplex housing does not match the existing amenity of the area and will detract from
the amenity of the locality. While the concerns of the objectors (or submitters) are
undoubtedly genuinely held, they must be assessed against the likelihood of
redevelopment of detached housing on smaller parcels of land within Durham Street,
resulting in an increase in the density of development. This expectation, however,
should not assume a disproportionate degree of importance as there is little evidence
to suggest that such redevelopment will occur on a significant scale.
[52] Mr Cronin, in his written submissions, suggested that Durham Street has been
a little community on its own. He cautions that because of changing times and
circumstances, Durham Street cannot be cocooned from such redevelopment.
However, in my view, the evidence of the objectors, all of whom are nearby residents
of the proposed development, reflects the intent of the detached housing PDLU in the Strategic Plan which identifies maintenance of residential amenity as a major priority
and notes that residents of such areas have consistently expressed the view that
residential development should be mainly restricted to detached housing. The
evidence of Mr Hart, Mr Guley, Dr Maxwell, Mrs Barnes and Mrs Grayson clearly
mirrors such view.
[53] There is no doubt, in my opinion, that the proposed development will impact
upon nearby residential amenity. The question is whether such impact can be
regarded as acceptable. In assessing the degree of impact it is necessary to have in
mind section 1.2.3(1) of IPA which requires an approving authority to, inter alia:
“(c) (Avoid) if practicable or otherwise lessen… adverse environmental
effects of development; and…(e) (Apply) standards of amenity, conservation, energy, health and safety in the built environment that are cost effective and for the public benefit.” [54] The objectives for areas designated as Detached Housing seek:
(a)
“To maintain the amenity and low density character of detached housing areas in line with expectations of residents.”
(b) “To provide for a range of accommodation types in developing areas.”
The opinions of the town planning consultants vary as to whether and to what degree
the amenity and low density character of the Detached Housing area surrounding
Durham Street will be maintained by the proposal. Mr Grummitt, for example,
considers that the proposed duplex development is visually and substantively different
from detached dwellings and so will impact upon the amenity and low density
character of the existing nearby residential area. He considers that the impacts upon
existing amenity and streetscape are relevant factors in determining that a duplex is
not the appropriate built form for the subject site. Mr Grummitt’s view is that, whilst providing an alternative housing type to that existing elsewhere in the area, the
proposed development will not maintain the existing low density character of the area,
nor be in line with the expectations of residents and so is not appropriate for the
subject site. Mr Grummitt concludes that the impact of the development on nearby
residential amenity are significant and cannot be regarded as acceptable.
[55] Mr Perkins points out that Durham Street, in general, enjoys a high level of
residential amenity and exhibits a consistent detached housing character where the
housing is generally positioned in landscaped settings. Mr Perkins notes that the site
is located close to the intersection of Durham Street with Ferry Road. He
acknowledges that the site’s existing amenity is influenced to some degree by traffic
on Ferry Road and that it will be influenced to some degree by a new development on
the western side of Ferry Road, opposite the Durham Street intersection. However, in
Mr Perkins’ view, the new detached house adjoining the site’s western boundary acts
as a buffer. He concludes then that the degree to which traffic and future
development west of Ferry Road does, and may be expected to in the future, impact
on the subject site, is not considered to be of such significance that would compromise
its suitability for detached housing purposes.
[56] Mr Perkins considers that all the properties in Durham Street enjoy a good
level of residential amenity due to the street’s location close to the Nerang River and
its associated amenities and the consistent detached housing character of existing
residential development in Durham Street. Mr Perkins has particular concerns with
regard to amenity arising from the interface of the proposed development with the
residents at 29 Durham Street, and the streetscape that will result from the development. He points out that, as the proposal will provide for two residential
dwellings adjoining the existing residence at 29 Durham Street, the proposal is a more
intensive use of the site than would result from a detached dwelling being erected on
the site. Detrimental impacts on the adjoining residence noted by Mr Perkins include:
¨ loss of daylight and ventilation; ¨ loss of privacy and the impacts of an increased density of residential activity; and
¨ impacts arising from scale and proximity of development. [57] Because the proposal will lead to 100% of the frontage being devoted to
buildings and approximately 80% (on the original design) of the width of the
allotment’s frontage being devoted to garages, Mr Perkins considers that there will be
a detrimental impact on the streetscape of Durham Street and sees the proposal as
being significantly different from what could be reasonably expected in a detached
housing residential environment such as that present in Durham Street. He concludes
that the proposal will lead to a development outcome that provides insufficient space
between the proposed duplex dwelling and the adjacent detached houses. The
proposed development, in his view, will not create a pleasant streetscape because it
will be significantly different in scale, layout, density and appearance when viewed
from the street in comparison to other residential development in Durham Street.
Accordingly, Mr Perkins considers that the proposal will unacceptably impact upon
the residential amenity of the area and in particular, upon the residential amenity of
the residents at 29 Durham Street.
[58] Mr Dredge concedes that there is a good level of residential amenity in the
area but suggests that this is not solely or directly attributable to the existing
residences on larger lots. He points out that in Durham Street there are three larger
allotments of 1123m2, 2585m2 and 1346m2 which have been created by the
amalgamation of a number of smaller allotments. The remaining allotments in
Durham Street range in area from 405m2 to 673m2. He accepts that in some cases
homes have been erected over two allotments, however he rejects the claim that the
residential amenity in the area is high and due to development on allotments
approximately twice the size of the subject site.
[59] Mr Dredge considers the proposed building scale to be consistent with the
trend for larger homes to replace older dwellings on inner suburban sites. He notes
that a single residence could have been proposed for the site and that such residence
could comprise a similar building form and scale. Mr Dredge contends that even if
the intent of the Strategic Plan is disregarded, a reasonable expectation for a
redevelopment proposal on the site would be for a large dwelling of similar scale to
the proposed development.
[60] Mr Dredge considers there to be no consistency or coherency of the built form
of the existing established housing and streetscape within Durham Street, such that
any difference between the proposed development and existing development fails to
support the claim of incompatibility. The architectural design and proposed
landscaping treatment of the frontage area, in Mr Dredge’s view, would add to the
existing streetscape and residential amenity. Indeed, Mr Dredge considers that the
proposed development has the potential to improve the existing streetscape and contribute to the residential amenity accordingly. His opinion involves a subjective
appreciation of the range of different housing styles, height, form and quality of the
existing houses in Durham Street to arrive at an understanding of the aesthetics of the
existing residential streetscape.
[61] Mr Dredge considers that the privacy of occupants of 29 Durham Street would
not be affected by the proposed construction of the garage wall on the site boundary.
He points out that there are no openings in the garage wall and that the reduced set
back does not increase overlooking or adversely affect privacy to any greater degree
than if the building was set back 1.5m. Mr Dredge further states that there may well
be a more significant impact on privacy if a building were constructed with habitable
windows on the eastern side, set back 1.5m from the site boundary.
[62] Much of Mr Dredge’s evidence, particularly where subjective views have been
formed and expressed, is simply a demonstration of the fact that reasonable minds
may quite legitimately differ with regard to many aspects of the proposed
development. However, Mr Dredge has, in my opinion, failed to give sufficient
weight to the fact that if permitted, the proposed development would represent an
intrusion into a detached housing area by a duplex dwelling. I do not consider that Mr
Dredge has placed sufficient emphasis on the legitimate views of the residents of
Durham Street who have testified in this appeal. Nor do I consider that he has
adequately justified why the subject site should be placed in the Mixed Low Density
Residential area when it clearly has no connection with Ferry Road.
[63] In his written submissions, Mr Cronin identifies the amenity issues as those
relating to traffic, two garages, two families and perception. He suggests that the
traffic issues are minimal and for present purposes his argument may be accepted in
this regard. The suggestion that the impact on visual amenity of the two garages may
be dealt with by landscaping and pergolas I am also prepared to accept. The impact of
two families residing in the proposed development must be considered in the light of
the fact that a very large family could reside in a single dwelling house and also in
light of the fact that the family residing in the western duplex of the proposed
development would be largely partitioned from the Harts. With regard to the issue of
perception, Mr Cronin concedes that there could be some impact upon the amenity but
he submits that the realistic adverse impact would be no worse than that arising from a
significant and substantial house constructed for a large family on the subject land.
This submission, too, is not without some force. However, the perception of the
potential intrusion of duplex dwellings into an area of exclusive single dwelling
housing is a relevant consideration. No matter how aesthetically pleasing the
architecture of the proposed development, there will remain an adverse visual impact
of a substantially different and therefore incompatible built form (dominated by large
garage doors) by comparison to existing detached housing development.
[64] Should this adverse impact upon visual amenity of the area be permitted it
would, I am satisfied, result in unwarranted erosion of the existing pleasant low
density living environment, as specifically contemplated by the Residential Dwelling
House Zone which prohibits duplex development. I have formed the view that the
proposed development conflicts with the type of development reasonably anticipated
by residents within the area.
[65] The proposed development, in my opinion, does not comply with the preferred
dominant land use of detached housing on individual allotments and would introduce
incompatible development of a scale and density at odds with the intent of preserving
and maintaining the higher degree of residential amenity which currently exists within
Durham Street.
[66] So far as the relaxations sought with respect to site coverage and set backs of
site boundaries are concerned, the revised plan as contained within Exhibit 16
effectively renders it unnecessary to consider at length. The site cover has been
reduced to 41.6% and because the relaxation sought in respect of this is so marginally
in excess of the 40% site coverage permitted without relaxation, I am of the view that
the relaxations sought in these regards should be granted.
[67] Whether a pleasant living environment has been facilitated by the provision of
adequate open space around buildings (4.11.2) again requires a subjective assessment.
Although I have some reservations as to the degree of adequacy provided by the
proposal in respect of open space around the duplex dwellings, I am not prepared to
say that the open space proposed is inadequate. I reach this conclusion bearing in
mind that sufficient space has been provided to permit gardening, room for clothes
drying areas and space for an outdoor table and barbecue. I accept that the proposal
does not comply with the AMCORD standard but the planning scheme does not
impose the AMCORD standard and it should not be implied as having been imposed.
[68] Despite the attractiveness of the design of the proposal in terms of Exhibit 16 (that is with a reduced site coverage and reduced area of garage door fronting Durham Street) the proposal cannot be said to maintain the amenity and low density character
of detached housing areas in line with expectations of residents which has been
identified as one of the objectives for areas designated as Detached Housing. If I am
wrong with respect to the appropriate PDLU designation and the subject site does fall
within the Mixed Low Density Residential designation on the Strategic Plan, then
there are no grounds sufficient to warrant refusal of the application in its amended
form as depicted in Exhibit 16 with reduced site cover and deletion of the eastern part
of the eastern garage, together with landscaping generally in accordance with Exhibit
7. The appeal must, in the light of my conclusion as to the appropriate PDLU, be
dismissed.
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