Rollo as agent for Lordan v Douglas Shire Council

[2007] QPEC 41

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Rollo v Douglas Shire Council and Another [2007] QPEC 041
PARTIES:	GEORGE ROLLO AS AGENT FOR JOHN LORDAN (Appellant) v DOUGLAS SHIRE COUNCIL (Respondent) CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 (Co-Respondent)
FILE NO/S:	180 of 2006
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:
DELIVERED ON:	5 April 2007
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr W L Cochrane for the appellant Mr P J Lyons QC for the respondent
SOLICITORS:	Miller Bou-Samra Lawyers for the appellant Williams Graham & Carman for the respondents

1. On 23 May 2005 the appellant applied to the respondent for a development permit for a material change of use to establish 34 Multiple Dwellings (Residential) in the form of 17 duplexes on 17 allotments in an 18 lot subdivision.  The application was refused.  This is an appeal against that refusal.  At the commencement of the hearing the appellant applied to reduce the number of Dwelling Units (Residential) the subject of the application to 22 Multiple Dwellings (Residential) in 11 duplexes located on 11 of the residential allotments in the 18 lot subdivision.  I made orders declaring this a minor change. 

1. The subject land is described as Lots 304, 305, and 306 on C 2251 and Lot 1 on RP 720006, Parish of Salisbury, County of Solander.  The four allotments have a total area of 1.499 hectares.  The subject land is located just south of Port Douglas at Craiglie.  The general locality is illustrated at page 2 of exhibit 2.  There is a short frontage to the Captain Cook Highway at the south western corner of the subject land and the main frontage is to Old Port Road. 

1. Approval has already been given for the subdivision (reconfiguration of a lot) of the subject land.  The plan of subdivision, including street layout appears in exhibit 3.  The allotments have been surveyed, streets constructed, and the embankment and surrounding fence constructed.  All that remains to formalise the subdivision is to seal the plan of subdivision in the Titles Office.

1. Exhibit 3 also shows the details of the 11 allotments upon which it is proposed to construct duplexes.  It shows the basic design plans for the construction of the duplexes.  The remaining allotments in the subdivision will remain available for the construction of single detached dwellings (Houses). 

1. The respondent’s planning scheme, which was in force at the date the application was made, was a Transitional Planning Scheme pursuant to the provisions of the Integrated Planning Act 1997 (IPA).  Pursuant to s 6.1.29(3)(h)(i) of IPA the application is to be assessed by reference to the matters set out in s 4.4(3) of the Local Government (Planning and Environment) Act 1990 (the repealed Act). In particular it is to be decided by reference to subsections 4.4(5) and (5A) of the repealed Act. Relevantly, the application must be refused if the application conflicts with any relevant Strategic Plan or Development Control Plan and there are not sufficient planning grounds to justify approving the application despite the conflict. However, by the time of the hearing of this appeal, the Transitional Planning Scheme had been repealed and a new planning scheme prepared pursuant to the provisions of IPA came into effect on 4 September 2006. So far as is relevant s 4.1.52 of IPA provides as follows:-

(1)    An appeal is by way of hearing anew

(2)    However if the appellant is the applicant or a submitter for a development application the Court –

(a)        Must decide the appeal based on the laws and policies applying when the application was made but may give weight to any new laws and policies the Court considers appropriate.

I will consider the weight to be given to the IPA scheme later. 

1. In my view the proposed development does conflict with the Strategic Plan contained in the Transitional Planning Scheme and Development Control Plan 2 – Port Douglas contained in the Transitional Planning Scheme.  The conflict with the provisions of the Strategic Plan are not direct.  Rather, they arise because the Strategic Plan effectively provides for development to take place in accordance with the relevant Development Control Plan.  Pursuant to DCP 2 – Port Douglas the subject land is in a residential growth area and is also part of what is designated Special Area 1.  Subsection 3.3.16.2 of DCP 2 provides as follows:-

Special Area 1

Intent

Areas included in Special Area 1 are intended to afford protection to permanent residential areas from intrusion by tourist accommodation and tourist activity.

This designation covers the residential area known as Reef Park together with associated community facilities, and the residential growth areas to the south.  It also includes the Solander Estate, a well established residential area at Four Mile Beach, of established detached housing character.

The boundaries of Special Area 1 are considered inviolable.  Only dwelling houses, integrated housing and uses which support and are compatible with such permanent residential development will be permitted in Special Area 1.  Such uses may include parks, community recreations, other community facilities such as schools, childcare centres and churches and the residential centre described in provision 3.3.8.3.  It is intended that the residential components of this area remain or be included in the Residential A Zone. 

Implementation

(a)     In Special Area 1 any application for development which is inconsistent with the intent for this area including those purposes referred to in provision 3.3.5.2(b) and Multiple Dwellings (Residential), will not be approved.

1. When the Transitional Planning Scheme came into effect in 1996 the subject land was included in the Future Urban Zone.  However, on 20 April 2004 the subject land was approved for rezoning to the Residential A Zone.  In my view there is therefore a clear conflict between the proposed development and Development Control Plan 2 – Port Douglas in that Multiple Dwellings (Residential) are effectively prohibited on the subject land.  Mr Cochrane for the appellant properly accepts that the conflict exists, that it is clear, and that the appellant has the burden of satisfying the court that there are sufficient planning grounds to support approval of the proposed development in spite of such conflict.

1. The first planning ground upon which the appellant relies is the need for the duplex type developments.   I feel bound to say that I have some considerable sympathy for the respondent Council and the difficulties which it faces in planning for development in Port Douglas.  Firstly, there are significant constraints upon the availability of land in the township and its immediate surroundings.  For a variety of reasons, which need not be gone into it, Port Douglas is widely regarded as a very desirable tourist destination.  One obvious reason is that it has been in the past, and remains, a destination visited by many tourists.  Its popularity as a tourist destination is likely to continue indefinitely.  There is therefore considerable development demand to establish recreational and hospitality facilities (e.g. golf courses, restaurants, nightclubs etc.). 

1. There is also considerable development demand for the establishment of accommodation facilities in which tourists may stay whilst visiting Port Douglas.  For a variety of reasons, which need not be enumerated, Port Douglas is also attractive as a place of permanent residence.  Firstly, it is a nice place to live and many people are attracted to Port Douglas for that reason alone.  Secondly, the expanding tourist industry provides business and employment opportunities which, in combination with the town’s attractiveness as a place to live, is drawing significant numbers of permanent residents. Many such permanent residents prefer a house (a single detached dwelling) as their form of residence. 

1. There is however, I accept, another class of people attracted to Port Douglas by employment opportunities in the tourist industry who do not intend living in Port Douglas permanently or for the long term.  I am also satisfied that within the tourist industry in Port Douglas there is a need for people to fill such occupations as are unlikely to provide long term permanent careers for many people.  I am satisfied that there are many people coming to Port Douglas with the intention of working in the tourist industry (in Port Douglas at least) in the short to medium term only before moving on.  Rented multiple dwelling type residential accommodation is likely to be the form of accommodation which best suits many such people.  I am therefore satisfied that there is need for such accommodation as the duplex Multiple Dwellings (Residential) involved in the proposed development.  In that sense therefore I am satisfied that a need for the proposed development is made out.  However, as I have indicated there are competing development demands.  There is also continuing demand for parcels of land to be made available for the construction of single detached dwellings.  

1. In its Transitional Planning Scheme the respondent council determined that some areas in Port Douglas should be set aside solely for the development of single detached dwellings without any other form of residential dwelling intruding.  It determined that other areas could contain a mix of single detached dwellings and Multiple Dwellings (Residential).  The former areas were zoned Residential A and the latter areas designated Residential B.  Whether the Transitional Planning Scheme provided adequately to meet the demand or need for both forms of development in an even-handed way, I am unable to say and there is no evidence which would enable any informed conclusion on the subject to be made.  Nor is there any evidence upon which I could be satisfied that the respondent Council in its Transitional Planning Scheme made a planning error that some areas should be set aside for the development of single detached dwellings only. 

1. In summary therefore whilst I am satisfied that there is a need for the provision of Multiple Dwellings (Residential) in duplex form and that the need is probably not being met adequately, in my view this could not be said to be a planning reason sufficient to override the clear planning intent for the subject land expressed in Development Control Plan 2 – Port Douglas.  

1. However, there is another matter which in my view is of much greater significance, namely the repeal of the Transitional Planning Scheme and the introduction of the IPA scheme which took effect from 4 September 2006.  Keeping in my mind the provisions of s 4.1.52 of IPA it seems to me that if the Strategic Plan and/or Development Control Plan of the Transitional Planning Scheme with which there is conflict has been discarded at the time of the hearing of the appeal, if there is a new planning scheme which has come into existence before the hearing of the appeal, and if the proposed material change of use under consideration in the appeal complies with the new planning scheme, then that would provide overwhelming planning grounds for approving the application in spite of the conflict.

1. I turn now to examine the IPA planning scheme, but before doing so I wish to make a few general observations about the philosophy behind the Integrated Planning Act 1997 as amended. Planning schemes introduced pursuant to the repealed Act and its predecessors routinely specified that certain uses were prohibited in certain areas. The primary method for achieving this was the Table of zones. The result was that until the commencement of IPA it was necessary to effect a change to the planning scheme in order to get approval to carry out a use which was prohibited in the zone in which the subject land was located. Even before any IPA schemes came into force, the Integrated Planning Act did away with this need by means of subsection 6.1.2(3) which provides:-

“A prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”

Thus in my view there has been a shift away from pure regulation, particularly through prohibition, to a concentration on deciding development applications according to impact.  This is not to say that IPA schemes are not of enormous influence in the assessment of impacts. 

1. Section 1.6 of the IPA scheme describes the structural elements of the planning scheme.  Section 1.6.2 divides the Shire into six localities covering the entire planning scheme area.  One such locality is Port Douglas and Environs.  Section 1.6.3 indicates that the scheme divides the Shire into nine planning areas.  One of those planning areas is Residential 1.  The planning scheme also contains comprehensive assessment tables.  Section 1.6.5 provides:-

“The assessment tables for each locality determine the level of assessment required for development within each planning area and identify the relevant or applicable codes.  Development is: exempt, self assessable, code assessable or impact assessable.”

Section 1.6.6 is as follows:-

The planning scheme includes five different types of codes.  The codes are:
Locality codes,  Planning Area Codes, Overlay Codes, Land Use Codes, General Codes

The codes set out the development requirements for development in the Shire.  Where there is any inconsistency between the requirements of the applicable codes, any Land Use Code takes precedence. 

1. The subject land is within the Port Douglas and environs locality.  On the locality map relevant to that designation the subject land is in the Residential 1 Planning Area.  It is not designated a Special Management Area and has no other specific designation according to that map.  When one then turns to the assessment table one finds that there is a list of defined land uses.  “Multi-unit housing” is defined in Chapter 5 as follows:-

Means the use of premises comprising two or more dwelling units on one lot for residential purposes. 
The uses include accommodation commonly described as:

·Duplexes

·Flats

·Home units

·Apartments

·Townhouses

·Villa houses

The duplexes proposed by the appellant in this case therefore fit that definition.  The assessment table tells us that in the Residential 1 Planning Area multi-unit housing is impact assessable except where included in Special Management Area 1 on the locality map and then impact assessable (inconsistent).  The subject land is not within the Special Management Area 1 on the locality map and therefore it is impact assessable.  The assessment table also tells us that the Port Douglas and environs locality code is also applicable.

1. Section 3.2 discusses the tables of assessment.  It contains the following:-

“Development falls within four levels of assessment:

·Exempt development

·Self assessable development

·Code assessable development

·Impact assessable development

Impact assessable development is divided further into two categories:

·       Impact; and

·       Impact (inconsistent).

These two categories of assessment require the most rigorous level of assessment.  The impact (inconsistent) category indicates that the development is not considered to be consistent with achieving ecological sustainability or the DEO’s for the Shire in that particular planning area and locality.”

In this case the proposed development is impact assessable, not impact assessable (inconsistent).  From this I draw the conclusion that the scheme is effectively neutral about the establishment of multi-unit housing in the Residential 1 area provided it passes impact assessment in accordance with the codes.

1. The Port Douglas and environs locality code is contained in s 4.2.4 of the IPA scheme.  It sets out a list of purposes.  Two purposes which have some broad relevance to the proposed development are as follows:-

·Encourage the expansion of residential areas that are pleasant, functional, distinctive and in visually well defined areas.

·Protect existing and future residential areas from the intrusion of tourist accommodation and activity.

1. Under the Transitional Planning Scheme there was a Residential A Zone and a Residential B Zone.  Multiple Dwelling (residential) was effectively a prohibited use in the Residential A Zone, however it was permitted under limited circumstances in the Residential B Zone.  Under the IPA scheme there is a Residential 1 planning area and a Residential 2 planning area.  These areas approximate the Residential A Zone and the Residential B Zone under the Transitional Scheme.  Under the IPA scheme multi-unit housing which approximates Multiple Dwelling (Residential) under the Transitional Scheme, is permitted in the Residential 1 planning area subject to impact assessment.  In my view this demonstrates not just a change in terminology between the Transitional Scheme and the IPA scheme but an alteration in planning strategy.  Although there is no express explanation in the IPA scheme for this change in planning strategy in my view it may be inferred that the Council identified the need to expand the areas in which multi-unit housing would be permitted in order to meet the need for that type of housing.

1. The residential 1 planning area code appears at page 105 of the IPA scheme.  It commences as follows:-

Purpose
The purpose of this code is to facilitate the achievement of the following outcomes for the Residential 1 planning area:

·Maintain and enhance the residential character and amenity of established residential neighbourhoods

·Ensure that the configuration of new residential areas is compatible with established residential neighbourhoods which are characterised by conventional residential housing.

·Identify new areas intended for residential living and provide for a high level of residential amenity within the opportunities and constraints imposed by the land; and

·Provide for the establishment of facilities to service the local community.

The code then specifies that it is applicable to assessable development for a material change of use.  It expressly applies to the application presently under consideration.  There then follows what are entitled “elements of the code”.  These contain a list of subject matter forming each element.  In relation to each element there are two columns, one headed “Performance Criteria” and the second headed “Acceptable Solutions”.  It is necessary to say something about the applicability of the matters set out in these two columns.  That is perhaps best understood if I set out the element of the code which is applicable in this case.  It is as follows:-

PERFORMANCE CRITERIA

ACCEPTABLE SOLUTIONS

P6 In new residential areas Multi-Unit Housing is limited to a small proportion of the total number of lots and is dispersed to ensure conventional residential detached Houses dominate the streetscape.

A6.1 In new residential areas, not more than 15% of the total number of new lots are nominated on an approved Plan of Reconfiguration for Multi-Unit Housing, with corner lots being preferred.

P7 Multi-Unit Housing is sited and designed to complement the residential amenity of the area.

A7.1 Multi-Unit Housing establishes on a lot with a minimum area of 1000 m2 and the lot has a minimum frontage of 25 metres.

A7.2 A Multi-Unit Housing development incorporates 1 Dwelling Unit per 500 m2 of site area and with a maximum of 3 Dwelling Units per site area.

A7.3 A Dwelling Unit in a Multi-Unit Housing development incorporates a maximum number of 3 bedrooms (or rooms capable of being used as a bedroom).

A7.4 Site coverage of Multi-Unit Housing is limited to:

·     40% for 1 Storey development; or

·     35% for 2 Storey development.

A7.5 Building Setbacks for Multi-Unit Housing are:

·     6 metres to the main street frontage

·     4 metres to any secondary road frontage

·     6 metres to the rear boundary

·     2.5 metres to the side boundary for 1 storey development or 3 metres to the side boundary for 2 storey development.

A7.6 A minimum of 40% of the site is provided as landscaping and recreation area.

AND
A minimum of 4 metres by 4 metres of landscaping and recreation area is provided for each Dwelling Unit which is directly accessible from a habitable living room.

OR
At least 50% of the total landscaping and recreational area is provided as one communal area having a minimum dimension of 6 metres.

A7.7 Each Dwelling Unit is provided with a designated refuse area which is screened from public view.

A7.8 Balconies, patios and similar spaces are not enclosed or capable of being used as a habitable room.

AND
Balconies, patios and similar spaces are designed to be open and of light weight appearance with a maximum of 20% of the façade being fully enclosed.

1. It is necessary to express a view about the way in which the assessment of a particular proposal should occur under this form of code, particularly impact assessment.  Firstly, in my view, the performance criteria are binding.  Initially the Council, and this court, as assessment manager, must assess the compliance of the proposed development with the performance criteria and only if all the performance criteria are met can the proposed development be approved.  I would go further and say that if a proposed development meets all the relevant performance criteria the applicant is entitled to have the proposed development approved. 

1. A greater controversy arises out of the term “acceptable solutions”.  In my view acceptable solutions provide answers to a question rather than solutions to a problem.  If a proposed development conforms to all of the acceptable solutions then it must be taken to meet the performance criteria.  There is simply no scope for an assessment manager to conclude that in spite all of the acceptable solutions being met that the performance criteria are not met for some other reason.  The obvious benefit of this approach is certainty.  As may be observed acceptable solutions are generally expressed in quantitative terms which permits simple objective compliance with the acceptable solutions in relation to a particular proposed development.  However, in my view it is clear that the acceptable solutions specified in the scheme are not intended to specify the only way in which the performance criteria can be met.  Nor are they intended to indicate that “solutions” other than those specified as accepted solutions are in some way less acceptable than the specified acceptable solutions.  This is not to say that acceptable solutions should be always completely ignored when assessing a proposed development against performance criteria but in this particular case I give little weight to the acceptable solutions.  This appears to be the approach taken by His Honour Judge Quirk in the Purcell Family v Gold Coast City Council & Ors [2004] QPELR 516.

1. The subject land is at the southern most point of a much larger residential subdivision known as Port Gardens Estate.  That Estate, the subject land and a few parcels of land to the south of the subject land are contained within a triangle bounded by the Captain Cook Highway, Old Port Road and Port Douglas Road.  All of the land in that triangle is within the Residential 1 planning area under the IPA scheme.  However, in my view the subject land cannot be looked at sensibly as being part of Port Gardens Estate.  It adjoins Port Gardens Estate but it is not part of it.  It is fenced off from Port Gardens Estate by a 1.8 metre solid timber fence, the T-shaped internal street of the subject land accesses directly onto Old Port Road rather than through Port Gardens Estate. 

1. I assume that the concerns expressed by the residents of Port Gardens Estate who gave evidence are genuine.  However, in my view they are entirely unreasonable.  The proposed development will be used for residential purposes, the same purpose for which homes in the Port Gardens Estate are used.  There will be a slightly greater population density arising out of the proposed development but in my view that will have no significant effect at all upon the amenity of the Port Gardens Estate residents.  There is no basis in the evidence or in objective experience for thinking that those who might reside in the proposed development will behave in a significantly different fashion to those people who live in Port Gardens Estate. 

1. The respondent has attempted to advance a proposition that the duplexes, if constructed, would be occupied by tourists, that being contrary to the clear intention of both the Transitional Planning Scheme and the IPA scheme.  Once again I am not satisfied by any evidence or objective experience that this is anymore likely to be so than the prospect of tourists occupying any of the detached dwelling houses in Port Gardens Estate.  It would be open to any homeowner in Port Gardens Estate to rent their home to tenants.  It is theoretically possible that tourists might find out about the availability of such a house and occupy it for a short term holiday.  I think that that is highly unlikely.  However, it is no less likely than tourists finding their way into the proposed duplexes.

1. The way in which the particular lots for the duplexes have been chosen and the layout of the units upon each allotment together with the design of the buildings at the ends which will face the street is such that all of the duplexes will give the appearance of being single detached dwellings when viewed from the street.  I am therefore satisfied that the duplexes are “sited and designed to complement the residential amenity of the area”.  (See performance criteria P7).  I am also satisfied that the streetscape (i.e. the view from the street) will be such as to give the appearance of being dominated by conventional residential detached houses.  Generally, I consider the design of the duplexes to be attractive.  I consider that people who might live within the proposed development, whether it be in the duplexes or in houses constructed on the other allotments will enjoy a total residential amenity which is not materially different to that enjoyed by the residents of the houses in Port Gardens Estate. 

1. In my view Mr Cochrane for the appellant aptly described the subject land as taking the form of an enclave.  In my view its character as an enclave makes it eminently suitable for the proposed development.  Its general location in relation to facilities and services makes it well suited for the proposed development.  As I have indicated I am satisfied that there is a need for duplex housing and the proposed development would go someway at least to satisfying that need without affecting the availability of allotments for single detached dwellings in a commensurate way.  By that I mean the proposed development provides 22 dwelling units whereas if those allotments were used for single detached dwelling only 11 houses would be provided.  Were it not for the planning schemes which need to be considered I would have no hesitation in upholding the appeal and allowing the development.

1. Unfortunately, in my view the proposed development just cannot comply with performance criteria P6.  When one identifies the “new residential area” one must look solely at the 18 lots which comprise the subject land.  The compliance with performance criteria P 6 cannot be assessed by including the Port Gardens Estate in the area under consideration in order to conclude that multi-unit housing is limited to a small proportion of the total number of lots.  Unfortunately, I am driven to the conclusion that the proposed development does not comply with performance criteria P 6 because multi-unit housing is not limited to a small proportion of the total number of lots.  I am also of the view that the multi-unit housing is not dispersed to ensure conventional residential detached houses dominate the streetscape.  It is one thing to say that the streetscape will have the appearance of being dominated by conventional residential detached houses.  However that is not the same thing as the streetscape in fact being dominated by conventional residential detached houses.  In my view therefore the proposed development does not comply with performance criteria P 6.  In the end result I must unfortunately come to the conclusion that there are no sufficient planning grounds to overcome the conflict with the Development Control Plan 2 – Port Douglas and the appeal must be dismissed.

1. During his closing address Mr Cochrane for the appellant invited me to uphold the appeal in relation to a smaller number of duplexes if I considered such a number passed the required test.  I decline to do so because no specific number was nominated, the respondent would not be able to address any smaller number, and that was not what was litigated in the appeal.  However, it might be of assistance to the parties if I indicate that on the evidence I heard during the hearing of the appeal I would have thought that six duplexes sited on lots 1, 6, 7, 12, 13 and 17 complied with the relevant Performance Criteria of the        IPA scheme.