Reef Resorts 1770 Pty Ltd v Miriam Vale Shire Council
[2006] QPEC 41
•12 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Reef Resorts 1770 Pty Ltd v Miriam Vale Shire Council [2006] QPEC 041
PARTIES:
REEF RESORTS 1770 PTY LTD
Appellant
V
MIRIAM VALE SHIRE COUNCIL
Respondent
FILE NO/S:
P & E Appeal No 514/05
DIVISION:
Planning and Environment
PROCEEDING:
Application within a proceeding
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
12 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
4 May 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Application refused
CATCHWORDS:
PLANNING – PLANNING LAW – WORDS AND PHRASES – ‘generally in accordance with’ – whether alterations to vehicle parking layout in proposed resort development were generally in accordance with approved plans
Cases considered:
Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200
Grace Bros v Willoughby Municipal Council (1980) 44 LGRA 400
Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No. 3) [2001] QPELR 423
Jefflane Pty Ltd v Brisbane City Council [2002] QPELR 81
Jefflane Pty Ltd v Brisbane City Council [2003] QPELR 97
Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334
R v The Justices of the County of London (1889) 24 QBD 341COUNSEL: Mr D C Fahl, solicitor, for the Appellant
Mr M Williamson for the RespondentSOLICITORS: P & E Law for the Appellant
MRH Lawyers for the Respondent
In 2003 the respondent Council approved an application for the construction of 38 holiday units and associated facilities at Agnes Water. Late last year the appellant asked Council to approve a change involving variations to the approved Plan of Development. Council refused, and the appellant has appealed that decision.
On 31 March 2006 Judge Rackemann ordered that a preliminary issue be set down for determination: namely, whether or not the amended plans, reflecting the changes sought last year, are generally in accordance with the approved plans attached to the original approval in April 2003. The court has power to make declarations affecting relief of that kind: Integrated Planning Act 1997, s 4 1 21. The particular change which excites the parties is the inclusion, in the amended plans, of 12 “tandem” car parks: i.e., parking spaces designed to encourage, or at least permit, one vehicle to park behind another. Nothing like that appears in the original development plans and, Council contends, was neither approved nor contemplated by the original development approval, and represents an alternation with unacceptable planning implications.
The conditions attached to the original approval required that “…development of the site including access, setbacks, landscaping and layout to be generally in accordance with submitted plans”. The particular condition attaching to car parking, condition (j) originally provided:
(j)Off-street car parking bays shall be provided in accordance with the Council’s Planning Scheme relating to the particular land uses, such spaces to be laid out, paved, line marked, signposted, drained and maintained in accordance with the Council’s standards. Parking spaces for disabled people shall also be provided.
The respondent’s Planning Scheme addresses car parking in Part 4, s 4 5 – Parking and Access. Section 4 5 1 relevantly provides:
4.5.1 Development shall comply with the following requirements:
(a)provision for access to the premises, on-site servicing and on-site car parking to the satisfaction of Council;
(b)the provision of parking spaces to be in accordance with the local relevant planning policy;
(c)the design of parking spaces in accordance with the relevant Australian standards and requirements, local laws and relevant planning policies; and
(d)parking area gradients, layout, surfacing, accessibility and maintenance shall be to the satisfaction of Council.
The planning policy referred to in s 4 5 1(b) is Planning Policy 4 2[1].
[1]Exhibit PM-8 to the affidavit of Peter Marles filed by leave on 4 May 2006
The appellant’s position is that the 2005 plans are nothing more than a refinement of those attached to the original approval but make no appreciable change, in planning terms, from them and are, therefore, “generally in accordance with” the design first approved. Council contends that tandem car parks are, for sound practical reasons, inappropriate and have town planning consequences making the deviation from the approved plans unacceptable.
The phrase “generally in accordance with” has been held, in this court, to have no difference in meaning from “in accordance with”[2]. Other decisions show that the phrase reflects an obvious intention to make some allowance for deviations; and, that the deviation and its importance should be judged by reference to appropriate, relevant criteria which, in many cases, will include applicable principles of town planning law and, obviously, the relevant planning schemes[3]. Judge Brabazon QC said in Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No. 3) [2001] QPELR 423, at 427:
As is emphasised in those two cases the requirement to generally conform confers a deliberate degree of latitude from absolute certainty. The words are intended to allow for some deviation from the drawings referred to in the interim development orders. The reasons, it is said, will usually be obvious and that the significance of any particular deviation will depend on the criteria by which it is judged. In the Grace Bros and Firefast cases planning criteria were concerned.
[2]R v The Justices of the County of London (1889) 24 QBD 341, at 341 per Matthew J; Jefflane Pty Ltd v Brisbane City Council [2002] QPELR 81, per McLauchlan QC, DCJ; and, Jefflane Pty Ltd v Brisbane City Council [2003] QPELR 97, per Robin QC, DCJ at 99.
[3]Grace Bros v Willoughby Municipal Council (1980) 44 LGRA 400, per Wooten J at 406-7; Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200, per Quirk DCJ at 202
The criteria in Hawkins & Izzard did not concern planning issues but, rather, the tolerances that might be required by the practical demands of undertaking certain works involving cutting and filling, drainage and road works. In the second Jefflane case[4] (cor Robin QC, DCJ) the criteria involved the question whether the changes complemented heritage listed buildings in the way intended by the relevant planning instruments.
[4]Jefflane Pty Ltd v Brisbane City Council [2003] QPELR 97
Here, the issues appeared to focus around vehicle traffic and parking management both inside and outside the site. Mr Oliaro, a town planner retained by the appellant, said he assessed the changes by reference to potential alterations to traffic movements, and associated issues[5]. Ms Katona-Dyer, a town planner in the employ of the respondent Council said[6]:
12.The proposed amended plans provide for the use of tandem car parking configurations. Such a configuration, whilst satisfying the total number of spaces required, gives rise to operational and functional problems. Tenants’ vehicles may well parked in (sic) by visitors’ vehicles or vice versa.
13.In my opinion, the development which is the subject of this proceeding is one where tenants and short-term occupiers will drive to and from local amenities as those amenities are not located within walking distance from the development. As a consequence, tenants are likely to drive to the facilities in the area. If tandem car parking is provided, there will be circumstances where tenants’ vehicles are parked in by visitors’ vehicles.
[5]Affidavit of Angelo Oliaro filed 3 May 2006, par 10
[6]Affidavit Natalie Katona-Dyer filed by leave 4 May 2006
The evidence touching the number of car parks incorporated in the original approval is less than precise. Undated correspondence from the Council to Mr Oliaro’s office, apparently written some time after 22 December 2005, indicates Council would accept a reduction in car parking for development of 50 per cent, but required 1.5 bays per unit. This letter[7] goes on to say condition (j) is, therefore, amended to read:
(j)Car parking provision for the development shall be provided based on the following calculation – 1.5 bays per unit (59 bays), boats/trailer parking bays (2 bays), a separately located service bay for a small truck (small rigid vehicle standard) and one bay per 10 m2 of gross floor area for the café indoor & outdoor dining area – (with a 50 per cent reduction applicable).
[7]Exhibit PM-7 to Mr Marles’ affidavit filed by leave 4 May 2006
I was not informed what this means in terms of the total number of car parking bays required for the whole development; Mr Oliaro says[8] that only 63 are now required by Council, but 70 have been provided. Of those 70, however, 12 are “tandem” bays, potentially holding 24 vehicles[9]. In the absence of any contrary submission from the applicant I have assumed, therefore, that compliance with the Council’s requirements is only achieved if two vehicle car parking spaces are counted in each tandem bay.
[8]His affidavit, par 11.7
[9]Mr Oliaro’s affidavit, Exhibit ARO-4, plan 03-075, DA.02, 03
The Parking Policy (4 2) uses the terms “parking bays” and “car space” but I was not taken to any definitions of those phrases. Clause 2 2 of the Policy, which sets out general minimum parking requirements for particular land uses, contains language which rather suggests that “car space” reflects an accepted standard area in which one motor vehicle can be parked. Although “parking bays” might ordinarily be thought to include larger areas for trucks and other special vehicles, the Policy refers, separately, to such things as “loading bays”. Conditions like (j) are to be construed by adopting a sensible, rather than strictly legalistic approach[10]. I think it is unavoidable that “bays”, when used with reference to ordinary cars, is intended to mean a single “car space” in condition (j), in both its original and amended forms.
[10]Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334, per Skoien SJDC at 336
In the present context this means the original approval should not be construed as overtly contemplating, or approving, tandem car spaces. I think that view is strengthened by the evidence, in the form of concept drawings showing vehicle parking, attached to the original approval[11]. The question then becomes: what is the significance of the variation, considered in the face of the prevailing issues?
[11]Mr Oliaro’s affidavit, Exhibit ARO-3, p 18
Mr Oliaro’s oral evidence was to the general effect that there would not be a high demand for private vehicle parking in the resort itself, and facilities in the town of Agnes Water were sufficiently close to mean most visitors would walk to them; and that, while tandem car parks could potentially create problems those could be easily managed by on-site staff, and parking of that kind was already very common, having been approved by this Council at another development and encountered, elsewhere, at places like public and private car parks. That may be so but neither the original development application nor Council’s Parking Policy suggest or contemplate them, and it is plain that Council is not satisfied with them.
The material planning issue here is the adequacy of parking, considered in the light of the relevant planning scheme. Those factors provide the context in which the variation ought be considered – the arena in which it should be determined whether or not the development, after the changes, is still in accord with the original approval.
Adequate provision for vehicle parking is unarguably a significant town planning issue. It is addressed at length, and in considerable detail in the Council’s planning scheme, an indication that it is a primary focus when a development application comes to be considered. Once that is appreciated, the proposed variations become something more than simply moving a few lines on a road surface. Although in the context of the Shire the scale of variation is relatively small, compliance with the Planning Policy concerning car parks and development conditions associated with it are plainly important.
In those circumstances I do not think it can be said the changes are simply minor variations, of little moment; rather, in light of the relevant planning issues and their importance those changes are not in general accord with what was approved, and the application should be refused.
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