Rosswalmore Property Pty Ltd v. Maroochy Shire Council
[2008] QPEC 50
•8 August 2008
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Rosswalmore Property Pty Ltd v Maroochy Shire Council [2008] QPEC 050 |
PARTIES: | ROSSWALMORE PROPERTY PTY LTD (Appellant) AND MAROOCHY SHIRE COUNCIL (Respondent) |
FILE NOS: | 304/07 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 8.8.08 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 23.07.08 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Appeal adjourned to a date to be fixed to enable the parties to consider these reasons. |
CATCHWORDS: | Impact assessable application to develop 24 lot gated community title development in Eumundi involving a combination of detached and duplex dwellings; whether proposal is in conflict with scheme provisions relating to siting, scale, character and density; proper approach to construing planning schemes. Legislation: Cases Considered: |
COUNSEL: | Mr. Ure for the Appellant |
SOLICITORS: | IPA Law for the Appellant |
On 21 November 2007 the respondent Council refused Rosswalmore’s impact assessment development application for a permit to reconfigure 3 adjoining allotments at Eumundi and develop a moderate urban subdivision of 24 lots and a new internal road as part of a community title scheme. The land has a total area of 2.0148 ha and is located at 21 Memorial Drive and William Road Eumundi. Council had previously approved a number of property realignments.
The proposal is described in Mr. Schomburgk’s report as comprising:
“the following elements:
· 3 group housing lots of less than 300m²;
· 17 cottage lots ranging in size from 300m² to 449m²;
· 3 courtyard lots ranging in size from 450m² to 599m²; and
· 1 traditional lot adjoining Memorial Drive with an area of 605m² - this proposed lot contains a new dwelling currently under construction.
The development is proposed as a ‘gated community’ with a security gate at the entry of the estate adjoining Memorial Drive frontage.”
Some of the dwelling houses are in duplex style while others are detached.
The site is designated partly urban in Council’s Strategic Plan, and is included within Precinct 7- Eumundi South (Precinct Class – Neighbourhood Residential) of Planning Area 17- Eumundi. The proposal is also governed by the Codes for Development of Detached Houses and Display Homes and for Reconfiguring Lots. The area surrounding the site is characterised by low density residential development. The site is 150m-200m from the Eumundi Aquatic Centre and sporting fields; 600 metres from the Station and 800-1000m from the Eumundi Town Centre. The western-most boundary of the site abuts the Mergad Court Bushland Conservation Reserve (a Council owned bushland park) which is densely vegetated and contains a waterway which extends into the subject site.
The site has frontage to Memorial Drive and William Road, although William Road is unformed and unconstructed. All vehicular access to the site is via Memorial Drive, which in this part is effectively a “dead end” road terminating south of the site. Memorial Drive in the opposite direction continues as the entrance to Eumundi from the south and becomes the wide main street.
Approximately 6000m² at the eastern side of the site will be reserved as common property open space and the watercourse which affects this area will be restored and maintained by the Body Corporate. As Mr. Schomburgk observed, this part of the site is flood prone and would not be amenable for residential development in any event.
Council’s reasons for refusing the application were as follows:
“1. The proposal will compromise the achievement of the Desired Environmental Outcomes of Maroochy Plan 2000, in particular those contained with Desired Environmental Outcome No.6 (Urban Design, Heritage and Character). The proposed development does not achieve a high quality, built environment characterised by premises which, amongst other things, are consistent with local desired character which reflects the Shire’s diverse range of subtropical coastal, mountain and rural settlements.
The proposal does not complement or strengthen the key elements of the established rural character of Eumundi. The character or residential areas within Eumundi is reliant on the development of detached dwellings on larger Traditional Lots, set within substantial landscaping. The proposal for the development of 3 Group Housing Lots, 17 Cottage Lots, 1 Traditional Lot and 3 Courtyard Lots will not afford the establishment or continuation of this existing urban form.
2. The proposal is not consistent with the Maroochy Plan 2000 Planning Area No. 17 (Eumundi) Vision Statement and there are not sufficient planning grounds to justify approval. The vision statement for the area provides that, amongst other things, Eumundi will remain small and peaceful, retaining the identity and character it derives from its rich cultural heritage and setting within a green backdrop. This means that… the rural identity and character of Eumundi will continue to make it a small, peaceful and desirable place to live.
As detailed in Reason for Refusal No. 1, the proposed development is not compatible with the established rural identity, character and urban form of Eumundi.
3. The proposal is not consistent with the Maroochy Plan 2000 Planning Area No.17 (Eumundi) Key Character Elements and there are not sufficient planning grounds to justify approval. Key Character Element (c) provides that the layout of new residential areas will be compatible with and connected to the established development areas in the locality.
4. The proposal does not meet the lot layout and design requirements for Traditional Rural Lots, set out in Table 8.2.5 of the Maroochy Plan 2000 Code for Reconfiguring of Lots for Residential Purposes. The proposal does not meet the corresponding Performance Criteria which requires that small lot development is in keeping with the existing and intended rural character of residential development in Eumundi.5. The proposal does not comply with the Acceptable Measures of Performance Criterion P2 of Element 3 (Courtyard, Cottage and Group Housing) of the Code for the Development of Detached houses and Display Homes. The proposal does not comply with Acceptable Measures of the Element, which requires (inter alia):
(a) Development is on a parcel of land where the overall site density is consistent with the desired character for the precinct in which the land is situated. The overall site density is not consistent with the desired character for the Precinct (as detailed in Reason for Refusal No’s 1-3), OR
(b) Development is on a site which has an area of between 2,000m² and 5,000m² with the corresponding Performance Criteria, which requires that Cottage Lots are developed on a parcel of land in an integrated manner. Greater than 95% of the proposed lots are small lots. This does not represent an integrated development; OR
(c) Development is on a site which is wholly or mainly within 400 metres of a Centre precinct. The site is not within easy walking distance of a Centre or is adjoining usable public open space.6. The proposal does not comply with the Code for Development in Bushfire Prone Areas or the bushfire provisions of the SPP1/03 Mitigating the Adverse Impacts of Flood, Bushfire and Landslide, specifically:
(a) Element 2, Performance Criteria P1 and P3 of the Code for Development in Bushfire Prone Areas and
(b) Specific Outcome 6(b) (Bushfire) in Annex 4 of the SPP1/03 Mitigating the Adverse Impacts of Flood, Bushfire and Landslide.7. The application does not comply with the provisions of the later planning scheme (Round 2 Amendments) which came into effect prior to the commencement of the Decision Stage of the application.
8.The application is contrary to sound town planning principles and practice, with respect to the appropriate location and design of increased density housing.”
The reasons were supplemented by particulars.
A number of Council’s concerns were addressed in expert conclaves and fundamentally the appeal focussed on town planning considerations summarised in the joint report of Mr. Ryter (for the appellant) and Mr. Schomburgk (for Council) in these terms:
“a) The scale and character of the proposal and its compatibility with the established and intended scale and character of the township of Eumundi;
b) The allotment sizes, and thus the lack of open space around each of the proposed dwellings, compared with the prevailing and intended character of the houses in Eumundi;
c) The nature of some of the proposed dwellings, being a row of duplexes along the western boundary, and the contrast this provides with the established and intended character of Eumundi;”
At the time of the planners conclave there was some disagreement about the relevance of the MP2K Bushfire Code but this is no longer an issue. Vegetation issues are also no longer subject to disagreement.
Mr. Brown, an economist, who gave evidence on behalf of Rosswalmore on the issue of need, gave evidence based on his analysis of relevant statistics that 90% of allotments in Eumundi are over 700m² and contain one dwelling. There is presently no other gated community in Eumundi, and no development like this involving duplex dwellings.
There is an approval however for a smaller gated community involving 8 lots on a strip of land in Elizabeth Street Eumundi which is in Precinct 2 (and part of Precinct 3) of Planning Area 17. The proposed dwellings are not duplex but are built to the eastern boundaries with a set back on the northern boundaries of 1.5 metres.
Mr. Schomburgk summarises the dispute as focussing on character (part of which includes the visual impact of the development), scale and siting. He described the dwellings as having practically no backyard (lots 23 and 24 in particular) and being “jammed up”; which on his reading of the planning scheme as a whole, was in conflict with it and thus, the application should be refused.
The visual experts (Mr. van Pelt for the appellant and Mr. McDonald for Council) reached agreement at their conclave (relevantly) as follows:
“3. The experts agree that the residential character of Eumundi is created by detached housing on large lots often with substantial tree cover. The housing, more often than not, is of traditional Queensland character. This overall impression is assisted by topography with Eumundi Hill being a prominent backdrop to most views, and approaches to, the town.
4. The experts agree that Eumundi retains an impressive sense of arrival in the main street from both the northern and southern approaches.
5.The experts agree that, based on the physical character of the proposed reconfiguration of the three larger lots into 24 smaller ones and a conservation area, the proposed development will be different to the typical residential character of Eumundi.
6. Having said that and without further considering the potential negatives and positives of this proposal, the experts agree that the site is surrounded by existing houses on Memorial Drive, a reserve to the north and by creek-side vegetation on the site itself.
7. The experts therefore conclude that single-story houses on the proposed lots will not be prominent from any public vantage point.
8. Mr. McDonald had minor concern about the lack of set back of Lots 23 and 24 from the unformed part of William Road should it ever be developed. Mr. van Pelt agreed, but considered it unlikely due to the high conservation value of the creek side vegetation and the likely minimal improvement in traffic circulation gain, bearing in mind that this is not his area of expertise.
9. In the context of the above, the experts agree that the visual exposure of the development to external view will be minimal. Therefore, the visual impact of the development on the character of Eumundi will also be minimal.
10. Notwithstanding the above, the experts see value in the ultimate built form of houses on the proposed lots being derived from traditional Queensland vernacular housing.
11. The experts agree that housing should be single-storey with top heights not exceeding those of the adjacent houses and with roofs of hip and gable from with moderate (20°-30°) roof pitches and roof overhangs to emulate existing styles and avoiding the use of low-pitched and/or skillion roof lines…
15. The experts agree that a gated community would not be consistent with the rural/village character of Eumundi. However, Mr. van Pelt notes that the intended location of the gate some 16m inside the property and is of the view that it will have no visual effect on the character of Eumundi as seen from major public places, including the southern approach roads to Memorial Drive. Mr. McDonald is of the view that there should be no gates other than to individual lots.”Mr. Ure, on behalf of Rosswalmore accepted imposition of conditions in terms of 11-13 above so that all houses will be single story; and the imposition of a condition that it construct all dwellings in the traditional Queensland vernacular style so as to avoid any concerns about enforcing covenants etc. The entrance gate is now to be located 22m inside the property.
It follows therefore that from the visual perspective, the proposal can be appropriately conditioned so as to reduce visual impacts to an acceptable level.
This leaves for the determination of the Court whether the proposal assessed against the planning scheme as a whole is in conflict with the scheme, and if so to what extent, and whether there are sufficient grounds in that event to justify approval notwithstanding conflict (s.3.5.14 of the IPA and see Weightman v Gold Coast City Council [2003] 2 Qd R 441; and Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd R 273.)
The MPK2 is a typical IPA performance based scheme which presents as a “cascading” model of assessment of a proposal commencing with the Shire wide vision set out in the Strategic Plan and proceeding through the various levels of the scheme to the more specific provisions focussing on the Precinct in the Planning Area in which the site is situated, and the applicable Codes.
Mr. Ure is quite correct when he submits by reference to cases such as Luke & Ors v Maroochy Shire Council & Watpac Developments Pty Ltd {2003} QPELR 447 that an assessment manager should construe the scheme broadly rather than narrowly or pedantically and with a sensible practical approach. However, there is nothing in what Judge Wilson said at paragraphs 55-56 of Luke, to detract from the proposition that in relation to a particular proposal such as the one being considered, the assessment manager may find more definitive guidance in the more focussed Planning Area and Precinct provisions of the scheme. Such an approach is entirely consistent with the whole of the scheme which has, as an essential theme, the recognition of individual character and needs of different areas across the Shire. A scheme that focussed only on Shire wide issues would not be of much use to people living in different parts of a diverse Shire where character and identity will differ greatly. As Mr. Trotter observes, by reference to the explanatory provisions in Vol.1, the creation of Planning Areas and Precincts is not based on some ad hoc “desk top” process; it is as a result of “previously undertaken local area planning, the distribution of existing and preferred future land uses, landscape/townscape, character considerations, transport networks (and) community views and values.”
I do not detect therefore in Council’s approach a “slavish adherence to a pedantic approach to planning area or precinct provisions”, as Mr. Ure submits.
Mr. Ryter derived some support for his opinion that the proposal does not conflict with the Planning Scheme from various general vision statements in the Strategic Plan, and, in turn, Mr. Schomburgk expressed an opinion in his report that the proposal compromised DE06 (Urban design) in a number of respects. While it is important to consider the Scheme as a whole, these general Shire wide statements have to be read in the context of the provisions in the Scheme relating to particular Planning Areas and Precincts. Clearly, as the scheme acknowledges, the assessment manager’s approach will differ in different areas of the Shire depending on such things as the need for land for urban purposes, the desired quality of life of residents and visitors and the natural and built character of the particular area, among other considerations.
Insofar as Council still maintains that the proposal conflicts with a DEO, this cannot be accepted bearing in mind the stringent test to be applied namely “there would…have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a shire wide basis had plainly been compromised” per Wilson DCJ, SC in Koerner & Ors v MSC & Anor [2004] QPELR 211 at para [25]. Mr. Trotter did not maintain this argument in his written submission.
I agree with Mr. Ure’s submissions concerning Council’s belated reliance upon what is asserted to be “serious conflict with SEQ Regional Plan”. Mr. Trotter himself recognised that this was not an issue in the appeal, at paragraph 5 of his submission. In his submission, Mr. Trotter did not advance the general proposition in paragraph 1(a) of “serious conflict”; rather he merely observed that Eumundi is included with the “Urban Footprint” of the Plan, and he referred to a statement in SEQPP to the effect that the “Urban Footprint” has been “carefully chosen to protect the special character and qualities of the small hinterland townships and the coastal communities north of the Maroochy River.”
Mr. Ryter also derived some support for his view from the General Statements of Intent for the Neighbourhood Residential Precinct Class in Vol. 3 of the scheme:
“These precincts recognise existing low density residential areas throughout the shire, which comprise predominantly detached houses…
These precincts are intended to provide for development for low density urban, town and village residential purposes and for compatible purposes which directly service residents in the locality…
While an overall average density of around 8 to 9 dwellings per hectare is envisaged, pockets of higher density (i.e. 9 to 12 dwellings per hectare) residential development may be located within easy walking distance of shopping, public transport and/or school facilities, and/or close to major public open space. Lower density development (i.e. less than about 8 dwellings per hectare) or clustered pockets of higher density development, may be alternative means of achieving minimum environmental impact on land which may be steeper or low-lying, have significant remnant vegetation, or adjoin productive rural land.
Council supports opportunities to widen the range of housing choices available throughout the shire.”In the more focussed provisions in Vol. 3 dealing with Planning Area No.17- Eumundi and Precinct (7) Eumundi South, there are a number of provisions referred to by the Planners. In the Vision Statement for Eumundi there is reference to it remaining a small country town “in an attractive rural landscape of rolling hills and coastal plains”; and to “development along Memorial Drive (continuing) to reflect the architectural heritage of the town with a strong emphasis on Queensland vernacular design”. In the Key Character Elements (3.17.3(c)) there is the statement:
“The layout of new development areas will be compatible with and connected to the established developed areas in the locality…”
Mr. Trotter makes the obvious point that a gated community could hardly be described as being connected to established development in the vicinity although, on its own, this is a minor point. There are relevant passages in Design Intent at 3.17.3(2)(g):
“The scale, height and density of new development in the main street will be controlled so that it is consistent with nearby buildings.”
In my opinion, this refers predominantly to development in the main street to the east of the site in Precinct 1 the Eumundi Village Centre, however there are similar statements in the Precinct 7 provision.
Mr. Trotter in his examination and cross-examination of the town planning experts concentrated on the more focussed planning provisions relating to Eumundi. The site is close to the extreme periphery of the southern part of Planning Area 17 and is flat and low lying. Mr. Ryter is correct when he observes that most of the Statement of Intent for Precinct 7 does not directly apply to the site because most of the Precinct is taken up by Eumundi Hill and land with views. What is obvious however is that there are pointers towards higher density development in other Precincts in Planning Area 17 which are absent in Precinct 7.
It is clear to me that residential development is not preferred in Precinct 1 the Eumundi Village Centre and that any residential development in the remaining (6) precincts is to be of low density. Precinct 2 (which with Precincts 3,4,5 and 7 are in the Neighbourhood Residential Class) refers to the preference for “traditional detached housing” although “a greater variety of residential forms may be included including low density tourism”. In the Statement of Intent for Precinct 3 (Eumundi North), it states “future development is intended to be predominantly for low density residential purposes”. Precinct 4 Eumundi West comprises land to the west of the Planning Area which is largely undeveloped and is intended for long term development. The preferred and acceptable uses for this Precinct provide that “low density residential development is preferred”.
Precinct 5, Eumundi East covers land to the east of the Planning Area much of which is largely undeveloped. The intent of this Precinct is specific in that “land in this precinct will not develop until there is a demonstrable need for additional urban lots”.
Precinct 6 is the Crescent Road East area, which adjoins the Village Centre, and is intended to continue “as a mainly residential area”, however “while traditional detached housing is expected to remain the dominant built form, a greater variety of residential forms may be acceptable, including low density multiple dwelling units…”. In the Landscape and Built form for this precinct it is stated “Where medium density dwellings are proposed, provision of town houses, small lot housing or dual occupancies is preferred in order to maintain the low rise small scale character of the town”.
Mr. Ure submits that the Intent Statement in Precinct 7 focuses on development on the hill and sloping parts of the Precinct, however I do not agree that the site is therefore excluded from the Intent Statement and the statement in the final paragraph about low density housing, if that is what he is suggesting. Such an approach would suffer from the same error that Mr. Ure ascribes to the Council, of not reading the relevant scheme provisions as a whole and adopting a pedantic and narrow approach.
When one considers the provisions relating to Planning Area 17 together it is clear that there is some intent in various precincts for higher density housing such as low density multiple dwelling units and town houses, small lot housing and dual occupancies. The use of qualifying words such as “mainly” and “predominantly” in for example Precincts 2 and 3 provisions, and the express reference to “a greater variety of residential forms”(Precincts 2 and 6) makes this clear.
The Eumundi Mews proposal (which was approved in 2004 but not yet built) which is mainly in Precinct 2, but partially in 3, may be an example of such greater variety.
What is clear is that there is no reference in Precinct 7 provisions to greater varieties of residential forms, nor are there any qualifying words to the clear intent that future development should be low density compatible with the scale and siting of existing housing.
Mr. Ryter sought to gain support from the General Statement of Intent for Neighbourhood Residential Precincts in Vol.3 of the Planning Scheme which has Shire-wide applicability. The relevant passage is reproduced at paragraph [19] of these reasons.
As he notes in his report, it is generally accepted by town planners that an easy walking distance is 400 metres. In fact, further on in the Neighbourhood Residential Provisions in Vol.3, it is stated that “It is desired that all residents be within easy walking distance (i.e. about 400 metres) of attractive parkland suitable and available for informal use.”
Mr. Ryter seeks to gain support from these Shire wide provisions because the proposed development is within 400 metres of the Eumundi Tennis Centre, the Aquatic centre and open space.
However, the site is 600 metres from Eumundi Station and approximately 1 kilometre from the shops in the Village Centre. I agree with Mr. Schomburgk that the “pockets of higher density (9 to 12 dwellings per hectare) residential development” referred to in Vol.3, are envisaged to be within easy walking distance of shopping and public transport which this development will not be.
Mr. Schomburgk and Mr. Ryter differ in their analysis of the overall density of the proposal. Mr. Ryter, by simply dividing the number of proposed lots (24) into the total area of developed land, comes up with a figure of “approximately 12 allotments per hectare”. Mr. Schomburgk on the other hand, makes his calculations on the basis of the amount of land suitable for residential development i.e. excluding the flood prone land, and comes up with a dwelling density of 22-23. Mr. Trotter takes a third course in his submissions by including the proposed parkland with the developable area and comes up with a dwelling density of about 16 dwellings per hectare. In their joint statement (under Points of Agreement 11(v)), the town planners acknowledge that when the open space is included, the dwelling density equates to approximately 12.9 dwellings per gross hectare.
Whichever calculation you take it is over the upper limit of density preferred in the Planning Scheme. The open space provided for in this proposal will have little impact on the scale and density of the actual lots given the lack of open space around each of the proposed dwellings.
As I have noted, the visual experts have reached agreement and the developer has accepted conditions recommended by them. I agree with Mr. Schomburgk that the visual effect of the proposal externally is one facet of character in a planning sense. “Character” when used in this Planning Scheme and in others, has a wide meaning and must be considered in the context in which the term is used in the scheme. For example, in 3.17.2(1) in the Vision Statement to Planning Area 17, “character” is used with “identity”; and the breadth of its meaning can also be gleaned from its use in sections such as 3.17.3 Key Character Elements. “Character” is (relevantly) defined in The Macquarie Dictionary as “the aggregate of qualities that distinguishes one…thing from others”. It follows that the external visual impact of the proposal is but one element of a multi faceted concept, which the visual experts seem to acknowledge in their joint report (see for example paragraph 15 of their report).
Unfortunately in his oral evidence, Mr. van Pelt introduced a metaphor which he derived from his teaching days in describing the development as being visually acceptable because (in effect) it was within a “locked cupboard”. Mr. Trotter submits that this was Mr. van Pelt’s main ground for support of the development but that is not fair when one has regard to Mr. van Pelt’s report, and his joint report with the Council’s own expert. I am sure Mr. van Pelt regrets his use of such a metaphor which only came after a typically polite but acutely decisive cross-examination by Mr. Trotter. However, an assessment manager would not take the approach of saying (for example) “Well I can’t see the development from the road because of its clever design, therefore it does not have any bearing on character and density issues as set out in the planning scheme”. I agree with Mr. Trotter that there is nothing in the planning scheme which would support such an approach.
There was also considerable debate about the applicability of the relevant Codes being the Codes for Reconfiguring Lots and for Development of Detached Houses and Display Homes.
In SDW Projects Pty Ltd v Gold Coast City Council [2007] QPELR 24, Judge Rackemann made some helpful remarks about the use of Codes in
schemes such as this. In his judgment, he observed at [47]-[48]:
“The performance criteria are generally outcome focussed, while the acceptable solutions indicate a “desirable” way to “ensure” compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.
It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a “relaxation” or a “dispensation”. It is another way of achieving compliance with the relevant performance criterion.”
Unsurprisingly, the relevant provisions in the Codes take up other provisions in the planning scheme and focuses the assessment manager on the desired character of a locality and the character and amenity of surrounding premises.
Mr. Schomburgk referred (relevantly) to Element 3 of the Detached Houses Code which deals (in part) with Group Housing and in particular Performance Criteria P2 and Acceptable Measure A2.2:
| Performance Criteria | Acceptable Measures |
| P2 (a) has sufficient area to:
(b) is located within easy walking | A2.1 Development is in a Mixed Housing or Multi-storey Residential Precinct. - is wholly or mainly within 400 metres of a centre precinct; and - has an area of between 2000 and 5000m². |
He notes that the site is not located within easy walking distance of a centre; although it is within easy walking distance of public open space. He also notes that the site is not located within a mixed housing or multi-storey residential precinct and is not consistent with the desired character for the precinct in which it is situated. The Code provisions (particularly the Detached Housing Code) simply take up other relevant provisions of the scheme which apply to the proposal, particularly dealing with density, siting and character issues.
Conclusions on Conflict
For the reasons I have enunciated, the proposal is significantly in conflict with the Planning Scheme both at a Shire wide level but more particularly at the more focussed Planning Area 17 and Precinct 7 levels as a result of its density and scale resulting in a “jammed up” housing development which is not in keeping with the character of development in Eumundi, and in the immediate vicinity. This conclusion is despite the conclusions of the visual experts whose evidence relates to one component in assessing the character of a locality.
I agree that the existing Eumundi Mews development is relevant, however it is mainly in Precinct 2, within 400 metres of the Village Centre, and is for a much smaller strip development which because of its linear design, will not have the closed in “jammed up” features of this proposal. Also, as I have noted there is significantly different terminology in the Intents for Precincts 2 and 3 when contrasted with Precinct 7.
Sufficient Grounds
The main ground relied upon is need. Mr. Trotter submits (probably fairly) that the proposal has undergone a significant change (he described it as a “distraction”) at a late stage in order to create a basis for establishing a “pressing need for an increased diversity of housing within Eumundi” to provide for “Eumundi’s ageing population” (to quote from Mr. Brown’s report.) It is not unusual for proposals to change significantly as Court hearings come closer, to accommodate legitimate concerns raised by Councils and other parties. However, the needs of Eumundi’s 65+ population was not part of the original proposal, nor was it apparently part of Rosswalmore’s case at the time of the meetings between Mr. Ryter and Mr. Schomburgk on 1st July and 16th July 2008. Mr. Brown’s evidence is mentioned at paragraph 21 of their joint report (p32 of Ex 1):
“RR says that, based on the evidence of Marcus Brown there is a need for the proposal. While it was agreed that the proposal will add to the variety and therefore choice of housing types available in Eumundi, CS says that, while there may be a need for more housing in Eumundi (which evidence he has not seen), there is no evidence that he has seen to suggest that there is a need for such small lots and so many duplexes in the township.”
Mr. Ure makes a valiant attempt to refute any suggestion to the effect that the 65+ need issue emerged late in the process by referring to (for example) a letter to Rosswalmore dated 21.9.06 from a real estate agent which was included in the material lodged in support of the application. I do not think there is much at all in this issue, given that my focus should be on need in the sense in which that concept in planning parlance has been described: Woolworths Limited v Maryborough City Council & Anor [2005] QPELR 412 at 439; Indooroopilly Golf Club v BCC (1982) QPLR 13 at 33F-33E; 35. It is obvious that dwellings of the kind proposed here will be more attractive to older people than to say families with young children, but I do not perceive the proposal as being designed to meet only the needs of the 65+ population of Eumundi, however that is the main way in which Rosswalmore presented its case at the hearing, and I can only assess need in light of the evidence presented in support of that issue.
In his trial report (produced after the joint report) Mr. Ryter said (at 1.6):
“The proposal is targeted at older people that are able-bodied, who wished to reside in Eumundi without having to maintain a large residential allotment.”
Mr. Brown frankly conceded that he had not undertaken any quantitative analysis or research to show that 65+ residents of Eumundi wished to downsize and remain in the area. He had undertaken a “desk top” assessment based on statistics in the 2006 census to formulate a “socio-economic profile of Eumundi benchmarked against the Maroochy Shire- Balance LSA, Maroochy LGA and Queensland”. His analysis (see Table 2:1 at p6 of Exhibit 4) shows that Eumundi’s 65+ population is smaller than any of the comparisons, and, because of the absence of any empirical date his conclusion (at 22) that Table 5.3 “Suggests the proposal would facilitate the provision of land for subdivision for housing that would meet the needs of Eumundi’s ageing population” cannot be accepted. It appears that he has assumed that all of the 65+ group cohort would want to downsize and remain in the town, without any supporting evidence to that effect.
He also acknowledged in cross-examination that objectively older people prefer to be closer to supermarkets and public transport. There is no supermarket in Eumundi, and the train station is 600 metres away. Mr. Ryter refers to the train timetable particularly relating to trains to Nambour which may not be very attractive to 65+ people, particularly those with health problems.
It follows that the evidence of Mr. Brown does not establish any “pressing” need for a development such as this. Insofar as there is some minor need given the increasing population of Eumundi and the whole of the Maroochy LGA; such a need can be met by proposals such as Eumundi Mews.
Mr. Ure also submits there are other ‘grounds’ namely “planning reasons” for approval notwithstanding the conflict. I have assessed the degree of conflict as significant, and I have taken a wider view of character than the mere external visual impact that Mr. Ure relies on in his submission. Despite the evidence of the visual impacts; I am not persuaded that the proposal in its present form will not impact unacceptably on the character of the area.
Mr. Trotter makes the point that the Council has objected to the proposal only insofar as its scale and density conflict with the scheme, and what he calls a “scaled down” proposal from Rosswalmore would also meet the relatively minor need established by Mr. Brown’s evidence.
It follows that from my conclusions that the result would be the dismissal of the appeal, however, I am prepared to adopt the alternative “unusual” course suggested by Mr. Trotter at paragraph 26 of his submission which would enable Rosswalmore to have the opportunity to submit an amended plan for the proposal designed to meet the problems I have identified, if it so desires.
For that reason, I will adjourn the appeal to a date to be fixed. If Rosswalmore does not wish to submit an alternative proposal then it should notify the Registrar within 21 days accordingly, and I will then formally re-list the matter and dismiss the appeal.
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